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You are here: BAILII >> Databases >> UK Social Security and Child Support Commissioners' Decisions >> [2004] UKSSCSC CIB_4300_2003 (25 May 2004) URL: http://www.bailii.org/uk/cases/UKSSCSC/2004/CIB_4300_2003.html Cite as: [2004] UKSSCSC CIB_4300_2003 |
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[2004] UKSSCSC CIB_4300_2003 (25 May 2004)
CIB/4300/2003
DECISION OF THE SOCIAL SECURITY COMMISSIONER
REASONS
"In relation to the activity of rising, the appellant made no claim of any problem in this activity in her claim pack. No mention was made of any difficulty in rising either in the appellant's submission or in the evidence on her behalf today. She was observed to rise by the Medical Officer without apparent problem. Descriptor 5(d) was accordingly scored."
That is accurate. There was no evidence before the tribunal suggesting that the claimant could rise from sitting only if "holding on to something". Accordingly, I am not satisfied that the tribunal erred in law with respect to either the activity of "sitting" or the activity of "rising from sitting".
6(a) Cannot bend to touch his knees and straighten up again.
6(b) 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.
6(c) Sometimes 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.
6(d) No problem with bending or kneeling.
"The claimant [page 24], although choosing descriptor 6(c), implies that she is unable to stand up (after bending and kneeling) without support, suggesting that possibly descriptor 6(a) or 6(b) applies to her condition. The examining doctor, however, found the claimant to have no problem with bending and kneeling, but noted that she held the edge of the couch with one hand for support when rising [page 44]. The tribunal noted all this evidence but decided that descriptor 6(d) was applicable.
"In CSIB/12/96 it was held that, if support was needed to enable a person to straighten up after bending and kneeling, this has to be taken into account. Further, as was pointed out by the claimant, I agree that it is not relevant whether one or both limbs are used for gaining such support. It is my submission that the tribunal have failed to adopt the correct approach in determining the claimant's ability to bend and kneel and that this amounts to an error of law."
I accept that the claimant's comments did suggest that descriptor 6(a) or, more probably, 6(b) might be appropriate, notwithstanding that she ticked the box for descriptor 6(c). The distinction is important because descriptor 6(c) scores only three points and would have made no difference to the outcome (as 15 points were required to satisfy the personal capability assessment), whereas descriptors 6(a) and 6(b) both score 15 points.
"The appellant in her claim pack had stated that sometimes she could not either bend or kneel. The Medical Officer in his detailed clinical examination had observed the appellant to be able to squat and rise up, holding the edge of the couch with one hand for support. The appellant's hips and knees flexed and extended fully, and painlessly. The Tribunal accepted in full the clinical findings of the Medical officer, based as they were upon detailed and experienced medical examination carried out by him at the relevant time. Whilst the appellant in her submission had stated that she had needed to have support from the 'bed' to push herself up to a standing position at the time of the medical examination, the Tribunal noted the observation of the Medical Officer whereby the appellant had used only one hand on the edge of the couch to support herself, and was found to have full power and movement of her lower limbs. On her behalf her husband had stated that the appellant could recover objects from the floor albeit with support. On the balance of probabilities, descriptor 6(d) was scored in relation to this activity."
(Signed) MARK ROWLAND
Commissioner
25 May 2004