16 March 2004
An important new commissioners decision may make it easier to score points for a range of activities used to decide incapacity for work. Activities affected include sitting, bending and kneeling, lifting and carrying, continence and remaining conscious, as well as mental health. In addition, our own research suggests that the DWP have been preventing some people being found incapable of work by asking the wrong question in relation to picking up coins.
The decision about incapacity for work is based on a points system administered under a test called the Personal Capability Assessment (PCA). (You can download a brief guide to the points system from a link at the end of this article). In January 1997, under amending regulations enacted in 1996, the DWP changed a wide range of the rules relating to this test. They managed to prevent the Social Security Advisory Committee (SSAC) looking at the changes by telling them that they would have no effect adverse effect on claimants. However, in 2002 in a case known as Howker, the Court of Appeal decided that in relation to a specific change in the exceptional circumstances rules the DWP had deliberately misled SSAC because the change would actually put some claimants in a worse position. As a result that particular change was ruled unlawful and the old rule reinstated. The Court made no findings about the many other changes made under the amending regulations as these were not at issue in that case.
In January of this year Commissioner Jacobs looked at another of the changes made in 1997, this time in relation to remaining conscious, and held that that change had also put claimants in a worse position and so was unlawful. The commissioner went on to say that all of the other changes made in 1997 were described as being neutral in their effects on claimants and so it was now up to tribunals to decide whether in truth they were adverse to claimants and therefore unlawful. We've set out the main changes below so that you can decide whether you would have been better off under the old rules.
Activity 3. Sitting in an upright chair with a back but no arms was changed from "Cannot sit comfortably for X minutes without having to move from the chair" to "Cannot sit comfortably for X minutes without having to move from the chair because the degree of discomfort makes it impossible to continue sitting". Although this clearly is a more stringent test, it may be difficult to show where the dividing line lies between having to move and it being impossible to continue sitting, thus making it hard to show that you have been adversely affected by the change.
Activity 6. Bending and kneeling. 6(b) and (c) were changed so that "Cannot bend or kneel as if to pick up a piece of paper from the floor and straighten up again" became "Cannot either bend or kneel or bend and kneel as if to pick up a piece of paper from the floor and straighten up again". The change made this a rather confusing descriptor, but if the only way that you can get down to pick up a piece of paper is not by bending or by kneeling but by a combination of the two then you may have been adversely affected by the change and be in a position to challenge a decision that you should not have scored points for this activity .
Activity 8. Lifting and carrying was changed from "Lifting and carrying" to "Lifting and carrying by the use of upper body and arms (excluding all other activities specified in Part I of this Schedule)". Part 1 simply means the physical disabilities test. Prior to this change it had been argued that lifting and carrying involved some movement from one place to another, so that people who could pick up a bag of potatoes but not carry it should score points. The change and subsequent commissioners decisions effectively ruled this out as a likely interpretation, instead making the activity into one which looks solely at lifting and holding rather than carrying. However, the door may now once again be open to arguing for this activity to involve movement from one place to another. So if, for example, you can pick up a 2.5kg bag of potatoes but would not be able to carry it any distance using either hand, then it may be possible to successfully argue that the change in the rules affected you adversely.
Activity 13. "Continence" was changed to "Continence (other than enuresis (bed wetting)". There can be no question that this is a harder test to pass for someone who only experiences enuresis.
Activity 14. "Remaining conscious other than for normal periods of sleep" was changed to "Remaining conscious without having epileptic or similar seizures during waking moments". This was the change which the commissioner found unlawful, so that the original wording is now law again. The actual descriptors talk about episodes of 'lost or altered consciousness'. Bearing in mind that episodes no longer have to be similar to epileptic seizures this may mean that episodes of severe vertigo, migraine and hallucinations can be argued for under this activity.
Regulation 25, para 2. This had the text in italics added: "In determining the extent of a person's incapacity to perform any activity listed in Part 1 he shall be assessed as if he were wearing any prosthesis with which he is fitted or, as the case may be, any aid or appliance which he normally wears or uses".
Part 1 simply means the physical health test and a prosthesis is an artificial body part, such as false teeth or an artificial leg. In addition, some aids or appliances are specifically included in the legislation - so the test for seeing is "Vision in normal daylight or bright electric light with glasses or other aid to vision if such aid is normally worn". Likewise the test for hearing is "Hearing with a hearing aid or other aid if normally worn" and the walking test includes a walking stick or other aid if normally used. But if the decision maker takes into account any aid or appliance that is not specifically mentioned in the regulations this would definitely make it harder to pass. So, for example, in one decision a commissioner held that aids to standing, such as a corset, should be taken into account when deciding how long someone could stand. That decision may now no longer be good law - it is certainly capable of being challenged.
Descriptor 15c had the words "or television" added so that it now reads "Cannot concentrate to read a magazine article or follow a radio or television programme". If you can show that, because of your mental health, you are able to follow a TV programme but cannot concentrate well enough to follow a radio programme then you may be able to argue you should score a point for this descriptor under the old rules.
Descriptor 15g had the words "potentially dangerous" added so that it now reads "Agitation, confusion or forgetfulness has resulted in potentially dangerous mishaps or accidents in the 3 months before the day in respect of which it falls to be determined whether he is incapable of work for the purposes of entitlement to any benefit, allowance or advantage". (Don't worry about the last bit - in effect it just means in the last three months). If, because of your mental health, you have had mishaps or accidents that were not necessarily dangerous, for example leaving taps running, then once again you may be able to argue you should score a point for this descriptor under the old rules
Regulation 10 (2)(c)(viii) This section of the regulations deals with people who are exempt from the PCA because there is medical evidence that they have a severe condition- for example: (iii) an active and progressive form of polyarthritis. The words in italics were added to (viii): "a severe mental illness, involving the presence of mental disease, which severely and adversely affects a person's mood or behaviour, and which severely restricts his social functioning, or his awareness of his immediate environment". Apart from the fact that it's difficult to even imagine what a 'mental disease' actually is, this is clearly a much narrower test than simply providing medical evidence that your mental illness is severe and thus the change in the rules is likely to be adverse for some claimants. If there is medical evidence available that you have a severe mental ilness but you are found capable of work you may have strong grounds for a successful appeal.
Other changes were also made under the 1996 regulations, including changes to the rules relating to vision, manual dexterity and reaching, but we think these are less likely to give rise to a successful challenges. However, that's just our opinion and we may be quite wrong. You can download a copy of the amending regulations from a link at the end of this article and decide for yourself - we'd be very pleased to receive further suggestions and comments.
Picking up coins
Another issue which has come to light is the way that the DWP phrase a question about manual dexterity in the IB50 questionnaire, which most claimants have to complete as part of the process of being found incapable of work. A claimant who cannot pick a coin which is 2.5cm or less in diameter with either hand scores 15 points, which is enough to be found incapable of work. 6 points are scored if the claimant can do it with one hand but not the other. The IB50 questionnaire, however, only asks claimants if they can pick up a two pence coin, which is 2.5cm in diameter, and does not ask about the ability to pick up coins which are less than 2.5cm in diameter.
Imagine a claimant who has moderate arthritis in both hands. They can, just, manage to pick up a two pence coin, but are utterly unable to manage the fine motor skills required to pick up a one pence or five pence coin with the either hand.
Being an ordinary, honest claimant, they select the tick box 'I have no problem using my hands' because they can manage the two pence piece. At their medical, because the claimant has ticked 'No problem' the Medical Services doctor ticks the box stating that they agree with the customer's choice of descriptor and does not explore manual dexterity any further. The decision maker looks at the evidence and awards the claimant 0 points for manual dexterity and as a result they are found capable of work.
In fact, we believe that the claimant should have scored 15 points but has been duped by being asked the wrong question. We consider that the DWP's 2 pence coin test would only apply if the law stated 'Cannot pick up a coin which is 2.5cm or more in diameter' not 'or less'.
What you should do
If you are completing an IB50 questionnaire, remember to give any information about difficulties picking up coins which are smaller than a 2p piece and also point them out to the doctor at your medical. If you need to appeal, try to get help from a welfare rights worker.
If your incapacity for work is currently being assessed, or you have been found capable of work and are appealing, and you think that you have been disadvantaged by any of the changes to the rules listed above, try to get help from a welfare rights worker to put your case. And do let us know how you get on!