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Neutral Citation Number:	2015 UKUT 304 AAC
Reported Number:
File Number:	CE 5261 2014
Appellant:	WC
Respondent:	Secretary of State for Work and Pensions (ESA)
Judge/Commissioner:	Judge N J Wikeley
Date Of Decision:	02/06/2015
Date Added:	19/06/2015
Main Category:	Employment and support allowance
Main Subcategory:	WRAA Schedule 3 prescribed activities
Secondary Category:
Secondary Subcategory:
Notes:	Reported as [2016] AACR 1. Work-related activity – Schedule 3 Activity 16 – descriptor 16(b) – meaning of expression “cannot chew or swallow food or drink” The appellant claimed to qualify for the employment support allowance (ESA) support group under descriptor 16(b) of Schedule 3 to the Employment and Support Allowance Regulations 2008 as he said he was only able to swallow drink and soft, liquid-like food. The First-tier Tribunal (F-tT) rejected his appeal, effectively taking the view that the appellant could qualify for the support group only if he could swallow neither food nor drink. Before the Upper Tribunal (UT) it was argued on his behalf that the ordinary use of “or” was disjunctive and the appellant therefore satisfied the statutory test because he could not ingest solid food. The Secretary of State’s representative submitted that use of “or” was conjunctive. Therefore, the issue before the UT was the meaning of the expression “cannot chew or swallow food or drink”. Held, disallowing the appeal, that: 1. the meaning to be attached to “or” in the descriptor 16(b) of Schedule 3 to the 2008 Regulations was context specific. The first “or” was conjunctive and the second “or” was disjunctive in the phrase “cannot chew or swallow food or drink without repeatedly stopping, experiencing breathlessness or severe discomfort”. Accordingly, the meaning of the expression “cannot chew or swallow food or drink”, which appears in descriptors 16(a), (b) and (c), effectively meant “cannot either chew and swallow food or swallow drink” (paragraphs 12, 15 and 20); 2. the F-tT erred in law in taking the view that the second “or” was conjunctive – and so the appellant could not qualify for the support group if he could either swallow food or swallow drink. However, on the facts as it found them to be, descriptor 16(b) was not met and so that error was not material (paragraphs 22 to 26).
Decision(s) to Download:	[2016] AACR 1ws.doc