IN THE UPPER TRIBUNAL	Case No.  CE/3375/2012
ADMINISTRATIVE APPEALS CHAMBER

1.	This is an appeal by the Claimant, brought with the permission of a Judge of the First-tier Tribunal, against a decision of a First-tier Tribunal sitting at Stoke-on-Trent on 24 April 2012. For the reasons set out below I dismiss the appeal. 

2.	The Claimant is a woman now aged 37 who suffers from pain in her lower back and legs as a result of the condition of her lower spine. 

3.	The First-tier Tribunal’s decision was to dismiss the Claimant’s appeal against a decision, made on 4 October 2011, superseding and removing with effect from that date the Claimant’s award of employment and support allowance on the ground that the Claimant did not have limited capability for work in accordance with the limited capability for work assessment. The Tribunal found that the Claimant scored 6 points (for descriptor 1(d) – mobilising) from the activities comprised in that assessment. 

4.	The ground for this appeal is that the First-tier Tribunal went wrong in law in relation to its treatment of activity 2 (standing and sitting). 

5.	In a written submission to the First-tier Tribunal, prepared by the Claimant’s representative (who did not appear on the Claimant’s behalf at the hearing itself), it had been contended that the Claimant satisfied descriptor 2(b), which reads as follows:

	“Cannot, for the majority of the time, remain at a work station, either:

		(i)	standing unassisted by another person (even if free to move around); or

		(ii)	sitting (even in an adjustable chair)

for more than 30 minutes, before needing to move away in order to avoid significant discomfort or exhaustion.

(Descriptor 2(c) is in identical terms, save that the words “30 minutes” are replaced by “an hour”. However, while descriptor 2(b) is worth 9 points, and so would have made a difference if it had been found to be satisfied, 2(c) is worth 6 points, and so could not have made a difference to the outcome). 

6.	In paragraph 9 of the Statement of Reasons the Tribunal said that it accepted the Claimant’s evidence, at any rate so far as relevant to activity 2. It found that the Claimant could sit for more than an hour, but that owing to discomfort she had to shuffle around. She did not get up much from sitting as standing up did not relieve the pain. She mainly sat down, as she could not stand for long. On those findings the Tribunal concluded:

	“We find that she can sit in one place for more than an hour without the help of another person. We find that she can for the majority of the time remain seated at a work station for more than an hour without the help of another person.” 

7.	It is contended on the Claimant’s behalf that that reasoning was erroneous in law, for the following reasons. On their true construction descriptors 2(b) and (c) are satisfied even in the case of a claimant who despite his discomfort would remain sitting for the specified period, if his level of discomfort would be such as to disrupt his concentration at a workstation to an extent which would interfere with work. It is contended that, although that would not have been the case under the sitting descriptors as they were down to 28 March 2011, the change as from that date was “from an examination of a claimant’s ability to perform an activity in the abstract to a consideration of their ability to perform it in a hypothetical workplace and while doing a job.” It is contended that the First-tier Tribunal therefore failed to make sufficiently detailed findings as to the level of discomfort which the Claimant experienced while sitting, what the “shuffling around” in her seat which she described would involve, and whether she would be able to concentrate for the required time while remaining sitting. In the words of the submission: “It follows that the revised version of the descriptor requires a finding as to the point at which the degree of discomfort disrupts that concentration such that it is necessary for the person to take measures to ease the discomfort in order that they can resume the standing/sitting position necessary to continue with their work”.

8.	I do not accept that the First-tier Tribunal went wrong in law, essentially for two reasons.

9.	First, in my judgment descriptors 2(b) and (c) deliberately make the test one of whether the Claimant can remain standing and/or sitting at a workstation without needing to move away in order to avoid significant discomfort. In other words, the test for the degree and nature of the discomfort, in relation to this activity, is whether it requires the claimant to move away from the workstation. I am not persuaded that, save possibly in some very extreme and exceptional case, the wording admits of the descriptor being satisfied in the case of a person who, because the discomfort could not be eased by moving away, would remain sitting at the workstation. I note that in para. 38 of MC v SSWP [2012] UKUT 324 (AAC) Judge Wikeley said:

	“However, there may be individuals who, because of their health condition, have to alternate between sitting and standing. One may envisage that there may be situations in which a person has to alternate so much between the two positions that it may be difficult to see how they can indeed “remain at a work station” in any meaningful way, given the level of disruption involved.” 

There may be exceptional cases where, even though the claimant would remain sitting, the pain would be so extreme and the contortions undertaken in order to attempt to relieve it so frequent, that he could not be said to “remain at a work station”, or where the claimant may for some other exceptional reason satisfy the descriptors even though he would remain sitting at the work station. But for the reason which I have given it is not in my judgment sufficient for the claimant to assert and prove simply that the discomfort would be such that, although remaining seated, he would not be able to concentrate. A test which admitted of inability to concentrate as one route to scoring points would be unworkable; one would need to make assumptions as to what sort of work is involved. The descriptors neither say nor imply anything about ability to concentrate while at the work station. 

10.	Secondly, and in any event, even if the correct construction were as contended for on behalf of the Claimant, there was in my judgment insufficient reason for the Tribunal to believe, on the evidence before it, that the Claimant would remain at a workstation even after the discomfort became such that she could no longer concentrate. There was therefore in my judgment in any event no sufficient reason for the Tribunal to explore, any further than it did, the level of the Claimant’s discomfort while remaining sitting, or whether it would disrupt her concentration, or exactly what the “shuffling” would involve. I have referred in paragraph 6 above to the main items of the Claimant’s relevant evidence, which the Tribunal accepted. However, there was in my judgment no real evidence before the Tribunal that the Claimant could not obtain some relief from the pain by moving away and (for example) lying down. In particular, on p.41, in her grounds of appeal to the First-tier Tribunal, the Claimant had said that “I can’t sit for long in one place for no longer than 20 minutes as I get back and leg pain.” That implied that ceasing to sit in that place would ease the problem. Perhaps even more significantly, in the written submission to the First-tier Tribunal (p.85) it was said that:

	“The appellant states that she feels “significant discomfort” within approximately 15 minutes of sitting in any seat, but has struggled to estimate a length of time before she would need to rise, because rising does not relieve the pain.” 

If the Claimant does not feel significant discomfort until after sitting for 15 minutes, it must follow that before sitting the Claimant had been doing something which had been helpful, and had enabled her to sit for those 15 minutes without significant discomfort. In my judgment the Tribunal therefore did not go wrong in law in simply applying the test which on the face of it is required by the wording of the descriptors, namely whether the claimant is able to remain at the work station for the required period. 

Charles Turnbull
Judge of the Upper Tribunal 
20 May 2013