Work capability assessment – mobilising unaided by another person – powered wheelchair not to be taken into account
On the claimant’s appeal to the First-tier Tribunal (F-tT) against the Secretary of State’s refusal to award him employment and support allowance (ESA), an issue arose as to whether the claimant’s mobility was to be assessed on the assumption that he could use a powered wheelchair to mobilise. It was argued on the claimant’s behalf before the F-tT that under the ejusdem generis principle of statutory interpretation the range of other aids which could be considered was restricted to those relying upon the individual’s manual effort, given the references in the Employment and Support Allowance Regulations 2008 to a walking stick and a manual wheelchair, and that as a powered wheelchair fell outside that range, it had been the legislator’s intention to exclude it. The F-tT rejected the appeal, holding that the references to specific aids was for illustrative purposes only, that the approach identified on behalf of the claimant would make the test impossible to apply and that a powered wheelchair fell within the range of other aids. The claimant appealed to the Upper Tribunal against that decision and the Secretary of State initially supported the F-tT’s reasoning but eventually submitted that it was not permissible to rely on a powered wheelchair when assessing ability to mobilise.
Held, allowing the appeal, that:
a powered wheelchair could not be an “other aid” as the legislator’s express reference to a “manual wheelchair”, and no other, was deliberate, and intended to limit the field to that one type. Further, a manual wheelchair and a walking stick both required an individual to supply all the energy necessary to move, without any external power, and that shared characteristic was sufficient to establish a genus which restricted the range of other aids that could be taken into account to those requiring the individual to move under their own power, and which were normally used or could reasonably be used (paragraphs 20 and 23);
if the legislative intention had been for the references to “manual wheelchair” and “walking stick” to operate as examples, then this would have been expressly stated or otherwise clearly indicated (paragraph 22);
it was quite straightforward to decide which specific aids qualified under the regulations, the range was limited to those requiring the individual to move under their own power, and which were normally used or could reasonably be used (paragraph 23).
The judge set aside the decision of the First-tier Tribunal and remitted the appeal to a differently constituted tribunal to be re-decided in accordance with his directions.