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Neutral Citation Number:	2012 UKUT 324 AAC
Reported Number:
File Number:	CE 1516 2012
Appellant:	MC
Respondent:	Secretary of State for Work and Pensions
Judge/Commissioner:	Judge N J Wikeley
Date Of Decision:	24/09/2012
Date Added:	15/11/2012
Main Category:	Employment and support allowance
Main Subcategory:	Post 28.3.11. WCA activity 2: standing and sitting
Secondary Category:
Secondary Subcategory:
Notes:	Reported as [2013] AACR 13. Work capability assessment – standing and sitting – meaning of “either … or” – whether the ability to stand, sit, or a combination of standing and sitting so as to remain at a work station for the requisite period negates award of points The appellant had suffered an ankle injury for which she was awarded nine points for the mobilising unaided descriptor 1(b). No further points were awarded. The appellant’s appeal was dismissed by the First-tier Tribunal (F tT) as it decided that she did not satisfy any of the descriptors in Activity 2 because she was able to remain sitting at a work station for more than an hour and was also able to move away thereafter, so avoiding significant discomfort or exhaustion. The appellant appealed on the grounds that the F-tT had failed to have sufficient regard to her problems with standing. The issue before the Upper Tribunal was the proper reading to be given to descriptor 2(c) for the activity of “standing and sitting”; in particular whether the use of “either ... or” was meant in a disjunctive or a conjunctive sense. Held, dismissing the appeal, that: 1. dictionaries and other guides make it clear that “either ... or”, while normally used disjunctively, can also be used conjunctively (equivalent to “both ... and”) so the ambiguity is inherent within the language. Where the legislative wording does not admit of only one reading it is necessary to consider both the linguistic and legislative contexts in which the words are used (paragraphs 14 to 15); 2. the decision of the F-tT did not involve any material error of law, as a person who can stand at a work station for more than an hour before needing to move away does not score six points (even if she cannot sit for that length of time). Similarly, a person who can sit at a work station for more than an hour before needing to move away also fails to score six points (even if she cannot stand for that period). Furthermore, a person who can neither stand nor sit continuously but can remain at a work station by a combination of standing and sitting for more than an hour (before needing to move away) likewise does not meet the requirements of the descriptor. However, an individual who can manage none of these scenarios meets the test under descriptor 2(c) and so scores six points (paragraph 4); 3. the same principles apply to the interpretation of standing and sitting descriptor 2(b), where the wording is identical save that the “statutory endurance test” is a maximum of 30 minutes rather than an hour (paragraph 5); 4. the same reasoning may not necessarily apply where “either ... or” is used in defining other descriptors in Schedule 2, as the proper construction will depend on the particular context (paragraph 39).
Decision(s) to Download:	[2013] AACR 13ws.doc