IN THE UPPER TRIBUNAL 		            Appeal No: CE/3466/2012

ADMINISTRATIVE APPEALS CHAMBER

Before: Upper Tribunal Judge Wright 

DECISION 

	The Upper Tribunal dismisses the appeal of the appellant.

The decision of the First-tier Tribunal sitting at Bradford on 2 May 2012 under reference SC240/11/07766 did not involve an error on a material point of law and is not set aside. Its decision therefore stands.

This decision is given under section 11 of the Tribunals, Courts and Enforcement Act 2007.  

REASONS FOR DECISION 

Introduction 

1.	On what basis does a person score nine points under the test “Cannot use a suitable keyboard or mouse” as that test stood at the relevant time in this case under paragraph 5(d) in Schedule 2 to the Employment and Support Allowance Regulations 2008 (the “ESA Regs”)? That is the important question with which this appeal is concerned.

2.	In particular, are the nine points awarded if the claimant cannot do one of the activities (use a suitable keyboard or a mouse), or if he can do one of the two activities does that mean no points can be awarded?

Decision in Summary 

3.	In my judgment, the latter construction set out in paragraph 2 above is correct.  In other words, the nine points only fall to be awarded under paragraph 5(d) in Schedule 2 to the ESA Regs if the claimant cannot do both of the tasks there set out; in other words, he can do neither of them. To the extent that either decision concluded otherwise and that conclusion was necessary to the decision then arrived at, in my respectful judgment DW –v- SSWP (ESA) [2010] UKUT 245 (AAC) and CL –v- SSWP (ESA) [2013] UKUT 0434 (AAC) were wrongly decided.    

Relevant background – factual   
     
4.	The question above arises in the context of decision made by the Secretary of State on 5 October 2011 where, on conversion, it was decided that the appellant’s awards of income support and incapacity credits did not qualify to be converted over to an award of employment and support allowance because he did not have limited capability for work. 
 
5.	For present purposes, the key disabling condition the appellant had was pain and a lack of grip and sensation in his left hand following an operation to pin and thereby mend a break in the thumb of that hand.  On his ESA5o form, completed by the appellant on 7 July 2011, the appellant recorded, under the questions on “picking up and moving” that he could not pick up and move a large, light object, like an empty cardboard box.  He said this was because “I only have use of one hand because I had a accident, and broke my left thumb, and damaged the circulation, and nerve endings. The hand has now developed R-S-D. I cannot clench or grip, or make a fist movement and my finger ends are numb with R-S-D” (emphasis in original). He said, however, that he had no problem with “reaching”.  In respect of the forms questions on “manual dexterity”, the appellant said that he could not do “some” of the tasks listed (which included “use a computer keyboard or mouse”), and he referred back to what he had said in respect of “picking up and moving” as the reason for this.

6.	In order to assess whether the appellant had limited capability for work (and so his award could be converted to an award of employment and support allowance), he was then called to attend for a medical examination before a health care professional (“HCP”), pursuant to regulation 23 of the ESA Regs.  This examination took place on 9 September 2011 and was conducted by a registered nurse.  Despite the stated problems in his left hand the HCP found that none of the points scoring descriptors in Schedule 2 to the ESA were satisfied.  This evidence as well as the ESA50 form was then put before a decision maker acting for the Secretary of State who, on 5 October 2011, made an assessment pursuant to regulation 19 of the ESA Regs and determined that the appellant scored nil points under Schedule 2, that he thereby did not have limited capability for work,  and therefore his previous awards could not be converted over to an award of employment and support allowance and so would cease with effect from 27 October 2011.

7.	The appellant’s appeal against this decision was heard by the First-tier Tribunal on 21 May 2012 (“the tribunal”).  By this point the Calderdale CAB was acting for the appellant and it put before the tribunal a detailed written submission in which, amongst other things, it argued that the appellant ought to be awarded six points under descriptor 4(c) in Schedule 2 to the ESA Regs (Cannot transfer a light but bulky object such as an empty cardboard box) and nine points under descriptor 5(d) (Cannot use a suitable keyboard or mouse).  The latter was founded on evidence of the appellant being unable to use a computer at college to complete his exams.

8.	Although the tribunal awarded the appellant six points for descriptor 4(c), as he needed fifteen points in order to be found to have limited capability for work under Schedule 2 to the ESA Regs, the appeal failed.  In relation to the argument that descriptor 5(d) was satisfied the tribunal, having found that the appellant’s left hand could not grip at all and that he had altered sensation in that hand, said:

“However the right upper arm and forearm were all found to be normal as was sensation to the right upper limb with light touch test……Therefore based on the clinical findings and observations made by the HCP which included that the Appellant was able to carry a light bag with his right hand; had no difficulty getting out of a chair and handling papers with his right hand; nor did he have difficulty opening a door with his right hand, we find that the Appellant is able to use a suitable keyboard or mouse with his right hand which is his dominant hand.”   

9.	The Calderdale CAB then sought permission to appeal to the Upper Tribunal on behalf of the appellant. It argued that the tribunal did not properly assess the appellant under descriptor 5(d) because it had found he could use a suitable keyboard with his right hand only. The CAB submitted that:

“use of one hand only, because of severe pain in the other, does not constitute use of a keyboard which is intended for two hands and in certain instances ie the use of the control key or the shift key for capitals, can only be used with two hands”   

I observe that no part of this argument was directed to the “or mouse” part of descriptor 5(d) in Schedule 2, and indeed proceeds on the basis that if the keyboard alone could not be used that would be sufficient to satisfy the descriptor and an award of nine points. I also observe that the tribunal had in fact found that the appellant was able to use a suitable keyboard or a mouse with his right hand.
              
10.	The submission argued that the approach advocated by the CAB was supported by Upper Tribunal Judge May QC’s decision in DW –v- SSWP (ESA) [2010] UKUT 245 (AAC). I will revert to that decision when discussing the law below.

11.	I gave the appellant permission to appeal based on the above argument, and I raised that one issue that may need to be addressed was whether the “or” in descriptor 5(d) was being used disjunctively or conjunctively.  

12.	In his submissions on the appeal the Secretary of State argued that the tribunal had not erred in law.  He referred to and quoted from advice given to health care professionals in the Training and Development ESA Handbook, which in  respect of the activity manual dexterity said:

“The activity relates to hand and wrist function. It is intended to reflect the level of ability to manipulate objects that a person would need in order to carry out work-related tasks. Ability to use a pen or pencil is intended to reflect the ability to use a pen or pencil in order to make a purposeful mark such as a cross or a tick.  It does not reflect a person’s level of literacy.  The same concept applies to use of a computer keyboard. When considering the use of a keyboard, ergonomic advances in equipment should be considered. The actual familiarity with use of a PC in technical terms is not considered in 5d. The descriptors reflect that those with effective function of one hand have very little restriction of function in the work place.”  

13.	Three points are worth emphasising about this passage.

(i)	First, as the Secretary of State conceded it is just guidance and so is not biding.

(ii)	Second, the focus on the functional aspect of the test echoes the approach of Upper Tribunal Judge Jacobs in GS –v- SSWP (ESA) [2010] UKUT 244 (AAC) (see below).

(iii)	Third, even this passage does not address the “or mouse” part of the 5(d) test.

14.	The Secretary of State’s submission also drew attention to the decision of Upper Tribunal Judge Wikeley in MC –v- SSWP (ESA) [2012] UKUT 324 (AAC); [2013] AACR 13, and Judge Wikeley’s analysis of the phrase “either…or” as it appears in activity 2 (standing and sitting) in Schedule 2 to the ESA Regs. I shall return to this decision further below.

15.	Observations in reply were then filed on behalf of the appellant by his carer, the CAB unfortunately having dropped out of the picture. The observations pointed out that the appellant’s condition had worsened as he had had a stroke and had dislodged discs in his neck, the latter condition causing numbness in both hands. An oral hearing of the appeal to the Upper Tribunal was requested.  

16.	I granted the request for an oral hearing and in so doing said:

I gave [the appellant] permission to appeal on 15.11.12.  There has since been an exchange of submissions between the Secretary of State and the appellant. (Whether his CAB representative is still acting for him is unclear). The Secretary of State does not support the appeal.  He does not seek an oral hearing.  [The appellant] has, however, asked for a hearing.

I grant the request for an oral hearing.  

The key issue at the hearing is likely to be the correct legal construction of descriptor 5(d) in Schedule 2 to the ESA Regs 2008. It is therefore hoped that [the appellant] can be represented at the hearing. The apparent changes in [the appellant’s] condition over the last 6 months will not be relevant.  This is because what the Upper Tribunal will be concerned with is whether the First-tier Tribunal erred in law in deciding whether [the appellant] qualified for ESA as at 5.10.11 and not whether he qualifies for the benefit after this date.

17.	The hearing took place in Leeds. Despite his request for such a hearing, the appellant neither attended nor was he represented at the hearing. The Secretary of State was represented by Mr Cooper, solicitor.  Part of the hearing was taken up with whether the test for use of a suitable keyboard required two hands or just one. As for the words “or mouse” under descriptor 5(d) the Secretary of State was inclined initially to argue that a keyboard could only be used with a mouse (despite descriptor 5(d) not using the phrase “with a mouse”), so that the test had to be read as focusing on whether a person could use a suitable keyboard (with a mouse). However in the course of argument he resiled from this approach on the basis that some tasks could usefully be carried out just by use of a mouse (e.g. marking or ticking boxes on a spreadsheet).
      
18.	In the course of considering my decision after the oral hearing I noticed that Judge Mark had very recently issued a decision that addressed descriptor 5(d) and the “or” in it: CL –v-SSWP (ESA) [2013] UKUT 04345 (AAC). This caused me to issue a further set of directions on the appeal, in which I said:

“The issue with which the oral hearing was concerned was the correct construction of descriptor 5(d) in Schedule 2 to the Employment and Support Allowance Regulations 2008 and what the scope is of the “Cannot use a suitable keyboard or mouse” legislative test contained in that descriptor. In short, can 9 points be scored if a person cannot use a suitable keyboard but he can use a mouse or does the test require that he can use neither of them?  Much discussion at the hearing revolved around Upper Tribunal Judge May’s decision in DW –v- SSWP (ESA) [2010] UKUT 245 (AAC) (pages 104-106), and, as it had been decided under an earlier and different version of the above test, its application  to the descriptor 5(d) test.

I had been in the process of writing my decision on this appeal when a fellow judge of the Upper Tribunal, Judge Mark,  delivered his decision in CL-v- SSWP (ESA) [2013] UKUT 0434 (AAC) (attached), on the exact same 5(d) test.  I was not aware that this decision was in the offing when I heard [the appellant’s] appeal.  

I am reluctant to delay deciding this appeal, but feel in fairness to the parties that they ought to have an opportunity to address the decision in CL. On the face of it, the decision in CL extends Judge May’s reasoning to descriptor 5(d) and decides explicitly that “an inability to use either [keyboard or mouse] is sufficient to score points on this descriptor” (paragraph [3]). The following questions then arise: 

i.	Is that the correct reading of descriptor 5(d)?
 
ii.	Are there any reports or pre-legislative materials that may throw light on what the words mean in descriptor 5(d)?
 
iii.	If so, are such materials admissible?
 
iv.	In addition, is the reading in CL not arguably more consistent with the decision of the Chief Commissioner in Northern Ireland in R 1/03 (IB) (attached)?

v.	However, how does R 1/03(IB) sit with paragraph 23 of R(IB)3/02?   

vi.	Lastly, and R 1/03(IB) aside, even if it is arguable that Judge Mark’s approach is wrong, ought I not, as another single Upper Tribunal Judge, to follow his approach: R(I)12/75?”

19.	The Secretary of State provided a response. No response was provided either by or on behalf of the appellant.  In short, the Secretary of State argued:

(i)	Judge Mark’s decision in CL was wrongly decided insofar as it was ruling that an inability to use either a keyboard or a mouse was sufficient to lead to an award of nine points under descriptor 5(d) in Schedule 2 to the ESA Regs;

(ii)	a DWP led WCA Internal Review, Working Group’s report dated October 2009 was admissible and cast helpful light on the scope of the descriptor 5(d) test. No submissions were made as to why in law such a report was admissible. Moreover, I confess that even if admissible I find it difficult to discern any assistance on the “or” question from the quoted extracts from this report that the Secretary of State relied on. As far as I can see, the main thrust of the quotes relied on from the report, which was written prior to and to explain the legislative changes made to Schedule 2 of the ESA Regs from 27 March 2011, is: (a) what has to be considered is the effects of the medical condition and not the condition itself; (b) if an individual is capable of carrying out an activity with one hand then he is capable of carrying out the activity and his functional capability is not limited; and (c) the removal of certain of the manual dexterity point scoring descriptors was to “facilitate clear and transparent application of the assessment” and to remove “those descriptors which do not represent a significant limitation of functional capability in the workplace”.  It is unclear to me on what basis these three points help understand what the correct test is under descriptor 5(d). Even a computer and a mouse may be used single-handedly, though not at the same time. This and the lack of any argument as to why this report is admissible leads me to ignore it;

(iii)	the decision of the Chief Commissioner in Northern Ireland in R1/03 (IB) was not relevant as it was dealing with a different activity;

(iv)	in any event, the approach in paragraph [23] of R(IB)3/02 was to be preferred;

(v)	adopting and arguing from Judge Wikeley’s analysis in MC, the “or” in descriptor 5(d) should be read conjunctively as meaning “both” and therefore a person who can use a mouse but not a keyboard cannot score any points under that descriptor; and 

(vi)	I was not required to follow Judge Mark’s decision in CL because (a) it was wrongly decided, and (b) following R(I) 12/75, although a single Upper Tribunal Judge should normally follow the decision of another Upper Tribunal Judge “in the interests of comity and to secure certainty and avoid confusion on questions of legal principle”, I was not bound to do so as “slavish adherence to this could lead to the perpetuation of error”.

Relevant background – legal 

Statutory provisions                                         
20.	Employment and support allowance is provided for under the Welfare Reform Act 2007 (“the Act”).  Under section 1(3)(a) of the Act one of the basic conditions of entitlement is that the claimant “has limited capability for work”. By section 1(4) of the Act a person has limited capability for work if “(a) his capability for work is limited by his physical or mental condition, and (b) the limitation is such that it is not reasonable to require him to work”. Section 8 of the Act then  provides, so far as is relevant, as follows:

“8(1) For the purposes of this Part, whether a person’s capability for work is limited by his physical or mental condition and, if it is, whether the limitation is such that it is not reasonable to require him to work shall be determined in
accordance with regulations.
(2) Regulations under subsection (1) shall—
(a) provide for determination on the basis of an assessment of the person	concerned;
(b) define the assessment by reference to the extent to which a person who has some specific disease or bodily or mental disablement is capable or incapable of performing such activities as may be prescribed;
(c) make provision as to the manner of carrying out the assessment.
(3) Regulations under subsection (1) may, in particular, make provision—
(a) as to the information or evidence required for the purpose of
determining the matters mentioned in that subsection;
(b) as to the manner in which that information or evidence is to be
provided;
(c) for a person in relation to whom it falls to be determined whether he has limited capability for work to be called to attend for such medical examination as the regulations may require.”

21.	 The detail of the employment and support allowance scheme is found in the ESA Regs. Regulation 19 of the ESA Regs is titled “Determination of limited capability for work” and at the material time provided as follows, again so far as is relevant:

“19.—(1) For the purposes of Part 1 of the Act, whether a claimant’s capability for work is limited by the claimant’s physical or mental condition and, if it is, whether the limitation is such that it is not reasonable to require the claimant to work is to be determined on the basis of a limited capability for work assessment of the claimant in accordance with this Part.
(2) The limited capability for work assessment is an assessment of the extent to which a claimant who has some specific disease or bodily or mental disablement is capable of performing the activities prescribed in Schedule 2 or is incapable by reason of such disease or bodily or mental disablement of performing those activities.
(3) Subject to paragraph (6), for the purposes of Part 1 of the Act a claimant has limited capability for work if, by adding the points listed in column (3) of Schedule 2 against any descriptor listed in that Schedule, the claimant obtains a total score of at least—
(a) 15 points whether singly or by a combination of descriptors specified in Part 1 of that Schedule;
(b) 15 points whether singly or by a combination of descriptors specified in Part 2 of that Schedule; or
(c) 15 points by a combination of descriptors specified in Parts 1 and 2 of that Schedule.
(4) In assessing the extent of a claimant’s capability to perform any activity listed in Part 1 of Schedule 2, the claimant is to be assessed as if wearing any prosthesis with which the claimant is
fitted or, as the case may be, wearing or using any aid or appliance which is normally worn or used.
(5) In assessing the extent of a claimant’s capability to perform any activity listed in Schedule 2, it is a condition that the claimant’s incapability to perform the activity arises from—
(a) a specific bodily disease or disablement;
(b) a specific mental illness or disablement; or
(c) as a direct result of treatment provided by a registered medical practitioner, for such a disease, illness or disablement.
(6) Where more than one descriptor specified for an activity apply to a claimant, only the descriptor with the highest score in respect of each activity which applies is to be counted.”

22.	The only other part of the statutory scheme which is relevant is Schedule 2 to the ESA Regs and paragraph 5 within that Schedule. At the material time the Activity under paragraph 5 was “Manual dexterity” and the Descriptors with their points awards were:

	(a) Cannot either: (i) press a button, such as a telephone keypad; or
 			         (ii) turn the pages of a book 
         with either hand. (15)
(b) Cannot pick up a £1 coin or equivalent with either hand. (15)
(c) Cannot use a pen or pencil to make a meaningful mark. (9)
(d) Cannot use a suitable keyboard or mouse. (9)
(e) None of the above apply. (0)

Case-law 

R(IB)3/02
23.	In R(IB)3/02 Mr Commissioner Howell QC (as he then was) was dealing with the test for “Bending and kneeling” under paragraph 6 of the Schedule to the Social Security (Incapacity for Work) (General) Regulations 1995. That was a legislative scheme similar to the employment and support allowance scheme in that a person was found incapable of work under the “personal capability assessment” if he or she scored, relevantly for present purposes, 15 points in respect of his physical disabilities. The wording with which Commissioner Howell was concerned was “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”.  This was an amendment to the previous wording which was in the shorter form of “cannot bend or kneel as if ...”; though Commissioner Howell considered that the wording was not materially different in terms of the issue he had to decide.

24.	As he put it, that issue was “whether a claimant who sometimes has a problem with bending but remains able to kneel, or sometimes has a problem with kneeling but remains able to bend, or can manage both but only partially, in each case so as to be able to get within sufficient reach of the floor to pick up a piece of paper, qualifies [for points]”. In other words, did the “cannot… or” phrasing mean, to modify the wording I have used in paragraph 2 above, that if the claimant cannot do one of the two activities (bend or kneel) he qualifies for points , or is it that if he can do one of the two activities then no points can be awarded?  

25.	The answer as far as Mr Commissioner Howell was concerned was the latter (and as this is a reported decision he must have been supported in that view by a majority of the then social security commissioners).  However, for present purposes it is (part of) his reasoning for arriving at this conclusion that is relevant.  Commissioner Howell said (paragraph [23]) that a key reason was:   

“the actual words used. To say that a person cannot do A or B means, if I may be forgiven a statement of the obvious, that he cannot do either of those things: in other words he can do neither. To convey in normal English the meaning that either he cannot do A or he cannot do B, a different sentence construction is needed, or the use of a word such as “each” or “both” after the negative. I agree with what is said in decision CIB/3809/1997 para. 14 that the scoring descriptors (b) and (c) are not satisfied if the claimant can reach the floor by bending but not by kneeling or vice versa, and the language used excludes the contrary view.”

	In addition, he was of the view (paragraph [24]) that it was:

	“simply inconsistent with any conceivable rational intent that a person not able either to bend or to kneel fully, but still able to struggle and reach the floor by a partial combination of the two should be given no score, when a person who has no problem at all doing it by one means alone should still get the points.” 

MC-v- SSWP
   
26.	Judge Wikeley in MC –v- SSWP (ESA) [2012] UKUT 324 (AAC); [2013] AACR 13 built on the analysis in R(IB)3/02 when considering activity 2 – “standing and sitting” – in Schedule 2 to the ESA Regs.  The relevant wording of the descriptors under that activity was “cannot….remain at a work station, either (i) standing unassisted…or (ii) sitting…for more than an hour before needing to move away…”.  Again, the central issue was what was meant by the “cannot ….either… or” in this descriptor. Did it mean that person would score the relevant points under this descriptor if he or she could not stand at a work station for more than hour before needing to move away even though he could by sitting remain at the work station for that period, or was it that points could only be awarded if the person could neither sit nor stand (or through a combination of the two) at the work station before needing to move away? Judge Wikeley held it was the latter.

27.	In summary Judge Wikeley’s reasons for coming to this conclusion were as follows.

(i)	The argument that “or” had to be read disjunctively in activity 2 failed to have sufficient regard to the nuances of English language.  Dictionary definitions allowed “either.….or” to be used in a conjunctive sense (equivalent to “both….and”), and this was especially the case if they followed a negative such as “cannot”. Judge Wikeley gave as an example here the phrase “I cannot speak either French or German” which has the same meaning as “I cannot speak [both] French and German” (or, to follow Mr Commissioner Howell in R(IB)3/02, “I can speak neither French nor German”). 

(ii)	The context in which the “cannot….either …or” phrase appeared was also important.  The primary focus of activity 2(b) and 2(c) was on remaining at a work station and it followed that in that context points would only be scored if the person concerned could neither sit nor stand there for the allotted time.  If the person could sit at the work station for over an hour (whether or not they could do that standing) before needing to move away then they could remain at a work station for the required period of time and so couldn’t score any points.  
(iii)	Had the draftsperson of activity 2 wished to achieve the disjunctive effect then that could easily have been met by splitting the two activities of standing and sitting into two entirely separate descriptors, each points scoring and with the “or” separating the two, rather than rolling the two into one.  The “rolling up” had therefore to have a purpose, and that was to focus on the functional ability to remain at a work station whether sitting or standing.  

(iv)	The wider legislative context also supported this reading of activity 2. The focus of regulation 19(2) of the ESA Regs was on the extent to which a claimant is capable of performing the activities in Schedule 2. The prescribed activity was not just “standing and sitting”, and in terms of the “extent” to which the claimant was capable of carrying out that activity had to be assessed on the basis of how long he could stand or sit so as to remain at a work station.  In addition, the prior legislative history supported the conjunctive analysis as under the “personal capability assessment” under the prior incapacity for work scheme standing and sitting were set out as entirely separate points scoring activities. As they did not continue to be so set out in Schedule 2 to the ESA Regs, and had been combined, that suggested a different approach was intended.

(v)	Finally, Commissioner Howell’s decision in R(IB)3/02 supported the analysis of “cannot….either …or” as meaning can do neither.

DW –v- SSWP                                                            
28.	The decision of Upper Tribunal Judge May QC in DW –v- SSWP (ESA) [2010] UKUT 245 (AAC) was about the manual dexterity descriptor concerning a keyboard and a mouse that was in place in Schedule 2 to the ESA Regs before the version of the descriptor with which this appeal is concerned.  It was then activity 6 (“manual dexterity”) and was descriptor 6(e), which provided an award of nine points where the claimant “Cannot physically use a conventional key board or mouse”.  

29.	The argument before Judge May arose in the context of the First-tier Tribunal having recorded that the claimant “Can’t use two hands using key”. The tribunal had not addressed descriptor 6(e) despite this evidence and had thereby erred in law, but the Secretary of State sought to argue that the error of law was not material because even on that evidence the claimant could not have satisfied descriptor 6(e).  His argument, as recorded by Judge May, was:

“in relation to the activity of manual dexterity, which descriptor 6(e) forms part, the test is one of manual dexterity and not of function.  There was evidence before the tribunal that the claimant had the capacity to physically press the key of a keyboard…… that was sufficient for the purposes of excluding him from satisfying the descriptor”

The claimant’s argument was that “he was not able to use the keyboard for any function which required the use of two hands, such as a shift key to form capital letters or for example the sign “@””.

30.	It would seem that no argument was made concerning the effect, if any, of the claimant being able to use his right hand (the disabling injury was to the left arm and shoulder) to use a mouse.  The focus of the argument was on whether two hands may be needed, at least at times, to physically use a conventional keyboard.

31.	Judge May rejected the Secretary of State’s argument on this issue.  He said:
“Mr Olsen [for the Secretary of State] sought to distinguish consideration of this descriptor from the approach in Moyna but I cannot see such a distinction.  In both Moyna and the instant case what a tribunal has to decide is whether a claimant cannot, in the context of the relevant statutory provisions, perform the task as set out in the legislation.  In this case it is apparent that the claimant can in some circumstances physically use a conventional keyboard but in the circumstances outlined by him in relation to the use of two hands he cannot.  It would seem for example from what Mr Brown said that on a computer he could google in the weather but could not send an email.  The Secretary of State in paragraph 9 of his written submission made a submission in relation to a feature contained in machines manufactured by one manufacturer which would enable the claimant to obviate the effects of his disability and physically use the keyboard with one hand for a function of the machine which would normally require two hands.  I consider that Mr Olsen’s argument is too extreme and I do not accept it.  The proper approach to the descriptor is to follow a similar approach to that set out by the House of Lords in Moyna.  It is to take a broad view and exercise a reasonable judgement as to whether the claimant satisfies the descriptor.  There are no absolutes by which “can” and “cannot” can be defined.  In these circumstances I consider that the failure by tribunal to deal with this descriptor was a material error in law as they had already awarded him six points under descriptor 5(c).  Accordingly I set their decision aside.  I am persuaded that the appropriate disposal is to remit the matter to a freshly constituted tribunal.”

CL –v- SSWP 
32.	Judge Mark decided CL –v- SSWP (ESA) [2013] UKUT 0434 (AAC) on 3 September 2013. He allowed the appeal on the basis that the tribunal had “clearly failed to address a relevant descriptor”: that descriptor being 5(d) “Cannot use a suitable keyboard or mouse”.  Judge Mark noted that the claimant’s evidence, which apparently had been accepted by the tribunal, was that “at the date of the Decision he was able to use his computer mouse although he could not type. Activity was limited in the main to his left hand”, and continued (in paragraph [3]):

“An earlier version of this descriptor, applicable until March 2011, read “Cannot physically use a conventional keyboard or mouse”.  This was considered by Judge May QC in DW v SSWP (ESA), [2010] UKUT 245 (AAC), where a claimant could physically use a keyboard using one hand but was unable to do so using two hands.  His ability to use a mouse does not appear to have been in question.   It appears to me that in the context of using a computer, a person generally needs to be able to use both the keyboard and the mouse, so that where the descriptor refers to a suitable keyboard or mouse, an inability to use either is sufficient to score points on this descriptor.” (my underlining added for emphasis). 

33.	The rest of the decision then addressed the correct test for “use of a suitable keyboard” and, in particular, whether that required (at least some of the time) use of two hands. On that issue Judge Mark cast doubt on some of what Judge May had said in DW, in particular whether two hands would be needed on a suitable keyboard in order to capitalise letters. However it is plain, indeed on the facts consideration of use of the keyboard could only arise because, Judge Mark took the view that nine points could be awarded under descriptor 5(d) even if the claimant could use a mouse.

R 1/03(IB) 
34.	The decision of the then Chief Commissioner in Northern Ireland – Judge Martin QC – in R 1/03(IB) concerned the meaning of the word “or” in descriptors 7(b) and (f) in activity 7 (manual dexterity) of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995.  The relevant wording of the two descriptors was: “cannot turn a sink tap or the control knobs on a cooker” (my emphasis).  The importance of this wording, and the use of the word “or”, arose in the context of tribunal’s findings of fact that the claimant could not turn on a tap with his left hand but he could turn on a cooker. The tribunal did not award the claimant any points for either descriptor because, as Judge Martin found, it took the view that the descriptor did not apply if a person could do one of the two actions (turn a sink tap or turn the control knobs on a cooker) there set out.         
 
35.	The relevant descriptors had previously been in the form “Cannot turn a tap or control knobs on a cooker”.  Judge Martin considered that it was evident that there were significant differences between the two forms of wording.   

36.	Judge Martin was of the view that the word “or” can be read as “and” in rare cases but this was “only in extreme cases where the Courts had struggled to make sense of what otherwise would be nonsense” [para. 16].  It was a word ordinarily used to join alternatives and so was prima facie disjunctive.  Further it was a word that could, on occasions, be used to join re-phrasings of the same thing where the second word following the “or” explains the word preceding the “or”, as in “twelve, or a dozen”.  However, in Judge Martin’s view this reading of “or” did not apply to descriptors 7(b) or (f) as the phrase “control knobs of a cooker”  were not explanatory of the phrase “a sink tap”; though he conceded that this reading of “or” might have been tenable in respect of the prior version of the relevant descriptors.

37.	However, Judge Martin concluded, in paragraph [20], that:

“the change in the law makes it relatively clear that the adjudicating authorities are concerned with the capacity or lack of capacity of a claimant to turn a sink tap or the control knobs of a cooker. Therefore, if a claimant is not able to carry out either one or the other function, he will satisfy the appropriate test and score the relevant score.” (emphasis in the original).    

Analysis 
      
38.	My analysis takes much the same steps as Judge Wikeley in MC and comes to the same conclusion as he did there about the phrase “cannot…[either] ….or”.

39.	A broad starting point is Upper Tribunal Judge Jacob’s “functional” approach to the manual dexterity descriptors in Schedule 2 to the ESA Regs, as explained in paragraphs [11]-[14] of GS –v- SSWP (ESA) [2010] UKUT 244 (AAC), where Judge Jacobs said:  

“In R(IB) 2/03, I considered a similar issue in relation to incapacity benefit. I undertook a functional and a linguistic analysis of the legislation, in each case considering the issue both in principle and on the authorities. The core of my reasoning was in paragraph 7:
‘The personal capability assessment is divided into two sections. One deals with physical disabilities, the other with mental disabilities. The activity of rising from sitting falls within the former. That section consists of a variety of activities that deal with different functions of the body. It is obviously designed to test in a systematic, analytical way the claimant’s various physical disabilities. The scores attached to each disability, when added together, indicate the extent of the claimant’s physical capacity for work. It is, therefore, to be expected that each of the activities will concentrate on different parts of the anatomy so as to isolate, as far as possible, the claimant’s ability in respect of each.’

The representatives are agreed that that is the correct approach to employment and support allowance. I accept their submissions. There are differences between incapacity benefit and the allowance, but they are not material to this issue. 
It follows that the tribunal was wrong to consider the practicalities of dressing, the type of shirt and so on. Even the Secretary of State’s representative, having submitted that a functional analysis was appropriate, was tempted into this type of speculation. It is important to appreciate the context. The ultimate purpose of the descriptors is to test a person’s capability for work. They test the claimant’s manual dexterity for work-related purposes. They do not test the claimant’s ability to self-care. The reference to shirts and blouses is for the purpose of illustration. They are not words of definition or limitation. 
The proper approach to the interpretation and application of descriptor 6(f) is this. The descriptor tests the claimant’s anatomical functions that would be involved in fastening or unfastening buttons. They include pinch grip, co-ordination of finger movements, and flexibility of the finger joints. The reference to small buttons identifies the size and shape of the object to which those functions are applied. The First-tier Tribunal should focus on the claimant’s functional ability to perform the particular aspect of the activity covered by a descriptor. By doing that, it will avoid the myriad questions that otherwise appear to arise on descriptors. Is the ability to use a tap tested with wet or dry hands? What sort of surface is the £1 coin resting on? How smooth or thick are the pages of the book? And so on and so on.” 

40.	It seems to me that this functional approach is an important factor when considering descriptor 5(d) both in its own terms and within the context in which it appears.  Before turning to those issues, however, I need to address the important point of the actual language used in descriptor 5(d).
 
41.	Like Mr Commissioner Howell in R(IB) 3/02 and Judge Wikeley in MC, and in respectful disagreement with Judge Martin in R 1/03 (IB), it seems to me that the phrase “cannot do X or Y” is better understood, and would ordinarily be understood, as meaning that the person can do neither X or Y.  I accept, of course, that the context of and within which the actual wording is used may point to a different result, however for the reasons given below I do not find that to be the case here.  

42.	I therefore do not accept Judge Martin’s view that “or” is used conjunctively only in extreme cases to make sense of nonsense.  As found by Commissioner Howell and Judge Wikeley, and as set out above, when following a negative such as “cannot” it is perfectly proper linguistically for the word “or” to have the effect of meaning “and”.  Moreover, it seems to me that R 1/03 (IB), with respect, fails to focus adequately on the import of the word “cannot” when used with “or” when it concluded that “if a claimant is not able to carry out either one or the other function, he will satisfy the appropriate test and score the relevant score”. That may be true if the functions were set out entirely separately with their own points scores, but it does not necessarily follow in the “cannot…or..” context where the two activities are rolled together in one points scoring descriptor.   

43.	Turning then to the wording as used in descriptor 5(d) and in the manual dexterity activity generally, in my judgment a number of considerations are relevant.

44.	First, as a matter of general approach, and, in particular, despite the learning from R(IB) 3/02 as to what the phrasing “Cannot do X or Y” might usually convey, the person drafting the wording of descriptor 5(d) did not seek to split the “suitable keyboard” and “mouse” into two entirely separate points scoring sub-descriptors, such as:

“Cannot:
(i) use a suitable keyboard,                                      9 points
Or
(ii) use a mouse                                                          9 points”   

With such a structure it would seem clear that an award of nine points would arise of the claimant was unable to do either one of the activities. The failure to separate the two activities in such a manner, and keeping them in the “cannot X or Y” format after R(IB)3/02, is, in my judgment,  a powerful pointer in favour of the “has to be unable to do both” construction.    
  
45.	Second, and again given the background of R(IB)3/02 of which the draftsperson ought to have been aware, no different type of linking words were used between “suitable keyboard” and “mouse”.  For example, the wording is not “Cannot use a suitable keyboard with a mouse” or “Cannot both use a suitable keyboard or a mouse”.  That suggests that the “cannot… or” was being used so as to convey the sense as found by Commissioner Howell in R(IB) 3/02.       

46.	Third the overall structure of activity 5 is important.  This is set out in paragraph 22 above, but I repeat it here for convenience.

(a) Cannot either:						(15)
(i) press a button, such as a telephone keypad; or 
(ii) turn the pages of a book
with either hand.

(b) Cannot pick up a £1 coin or equivalent with 
either hand.							(15)

(c) Cannot use a pen or pencil to make a 
meaningful mark.						(9)

(d) Cannot use a suitable keyboard or mouse. 		(9)

(e) None of the above apply. 				(0)

47.	Looking at the overall structure, I note first that there was some attempt by the draftsperson to split the first category of activity into two separate tests; though I readily concede that there may even be room for argument there.
  
48.	Further, the other descriptor which gives rise to an award of nine points is the one about making a meaningful mark with a pen or pencil. However, using a pen or pencil to make a meaningful mark does not involve a significant degree of dexterity or ability. It is not a test of writing a word or a sentence but making a mark that is meaningful, which suggests a tick or a cross in a box.  It is a very simple test and so one that suggests a very significant degree of restriction in the hands and fingers if a person cannot do this.  If that is the case for those nine points, however, then in my judgment it suggests a similarly very basic degree of dexterity that 5(d) is seeking to test in terms of use of a suitable keyboard or mouse (e.g. gripping the mouse and moving it over an icon or box and then using a finger to click on it, and using the keyboard to type out letters, number or symbols). Moreover, I can see no rational basis for the “or” in 5(c) being used disjunctively: it is plainly directed at a person who can use neither a pen nor a pencil to make a meaningful mark, and that suggests the “cannot…or” in 5(d) was intended to have a similar effect.

49.	I also find it difficult to discern, having regard to the overall structure of activity 5 in Schedule 2 to the ESA Regs, what the rational basis is for finding that a person who cannot use a suitable keyboard but can use a mouse is as functionally incapable in the workplace as a person who cannot use both of them or who cannot make a meaningful mark with a pen or a pencil. In a sense this echoes, albeit in a different context, Commissioner Howell’s point at paragraph [24] of R(IB)3/02.

50.	Fourth - though in a sense this may simply act to underscore what is said in paragraph 47 above - the test in descriptor 5(d) has to be seen from the functional perspective as set out by Judge Jacobs in GS. The test of “use of a suitable computer” or “use of a mouse” focuses on the parts of the hands and fingers that are needed to use each item.  Thus with the suitable computer it is primarily looking at the power, sense and spacing in the finger or fingers of the hand so as to be able to press the buttons on the keyboard. Grip plays little or no role. On the other hand, the use of a mouse is likely to involve, in part, different manual dexterity functions. The primary function may be to grip and then move the mouse, though the ability to click, and click and drag, the cursor may also be important, so the flexing of one of the fingers in the hand gripping the mouse is also likely to be important. Although there is crossover between these two manual dexterity activities, they are different and so can and should be assessed separately. 

51.	These considerations, it seems to me, are also supported by reading activity 5(d) with the language in regulation 19(2) of the ESA Regs. That, it has to be remembered, requires the limited capability for work assessment to be “an assessment of the extent to which a claimant….is capable of performing the activities prescribed in Schedule 2 or is incapable by reason of such disease or bodily or mental disablement of performing those activities”. As Judge Wikeley pointed out in paragraph [24] of MC, the activities here extend to encompass the descriptors set out next to each “activity” in Schedule 2 to the ESA Regs.  So read, however, and reading the descriptors (as I consider I ought) in the “reasonable everyday sense” advocated by Commissioner Howell in paragraph [20] of R(IB)3/02, in my judgment the claimant who is capable of using a mouse but not a suitable computer is not someone who is incapable of carrying out the manual dexterity activity set out in descriptor 5(d).                

52.	Moreover, just as in GS what was being tested was not the ability self-care, descriptor 5(d), in my judgment, is not concerned with whether a person can write a sentence or, for example, draw with the mouse. If that was what was being tested then the descriptor could plainly have said this. 

53.	I therefore respectfully disagree with Judge May in DW insofar as he proceeded on the basis that the use of a conventional keyboard required the ability to write sentences with capital letters at the beginning (though as Judge Mark pointed out in CL (if that was the test) that could be done using one hand simply by turning on and off the caps lock key).  

54.	I also respectfully disagree with Judge Mark in CL when he said that “in the context of using a computer, a person generally needs to be able to  use both the keyboard and the mouse, so that where the descriptor refers to a suitable keyboard or mouse, and inability to use either is sufficient to score points on this descriptor”.   The opening words of this passage in my judgment wrongly seek to read into descriptor 5(d) that what it is testing is the overall use of a computer with a mouse. What is being tested is the claimant’s ability with his hands and fingers to carry out the functions so as to be able to use a suitable keyboard or a mouse in the way I have sought to describe in paragraph 46 above.  Descriptor 5(d) does not use the word “computer”, it does not posit a combined test (of keyboard and mouse), and for these reasons I consider it is illegitimate to seek to read into it some overall test of using a computer with a mouse or a mouse with a computer.   

55.	I also disagree with both DW and CL insofar as both decisions depended in their results on reading the relevant manual dexterity descriptor as meaning that points can be scored even if the person can use a mouse.  I have guided myself by R(I)12/75 and have concluded that I ought not to follow the legal view as to the meaning of “cannot.….or” as taken in  DW and CL because: (i) I am satisfied that it is wrong; (ii) in DW at least the key concern was what was contemplated by the phrase “use of a conventional keyboard” and, in particular, whether this meant use by two hands, and it seems to have been a matter of assumption only that this remained important even if the claimant could use a mouse; and (iii) as far as I can see, in neither case was any argument presented on this issue. 

Conclusion

56.	The tribunal made a finding of fact that the appellant was “able to use a suitable computer or mouse with his right hand”. The finding in respect of his ability to use a “mouse” has never been challenged and was plainly open to the tribunal on the evidence before it. On the above reading of descriptor 5(d) in Schedule 2 to the ESA Regs, that finding of itself was enough for no points to be merited under descriptor 5(d) regardless of whether the use of a suitable computer involved two hands, and therefore the appeal must be dismissed.                              

Postscript 

57.	I had completed this decision when Upper Tribunal Judge Williams  issued his decision in HD –v- SSWP (ESA) [2014] UKUT 0072 (AAC) on 12 February 2014.  This decision concerns activity 1 in Schedule 3 to the ESA Regs and the “cannot either….0r” between (a) (mobilise more than 50 metres…) and (b) (repeatedly mobilise 50 metres…) in the qualifying descriptor therein. Judge Williams takes a different view as to the “or” in this context, and in effect reads it disjunctively so that a person will meet Schedule 3 on mobilising of he either “cannot mobilise more than 50 metres without stopping….” or “he cannot repeatedly mobilise 50 metres within a reasonable timescale….”. I can see the sense of that reading of “or” within that context. However, it does not persuade me that the contrary reading of “cannot…or…” in activity 5(d) in Schedule 2 to the ESA is wrong. I have not sought yet further submissions on HD from the parties because (i) its differing reading of “0r” seems explicable in its own particular context, and (ii) to do so would yet further delay the making of this decision.                                                                                                                                                                                                                                                           

 (Signed) S. M. Wright
Judge of the Upper Tribunal
                                                                                                          
Dated 26th February 2014