Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1996] NISSCSC C8/96(IB) (21 January 1997)

 


Decision No: C8/96(IB

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS

(NORTHERN IRELAND) ACT 1992

INCAPACITY BENEFIT

Appeal to the Social Security Commissioner

on a question of law from the decision of

Ballymoney Social Security Appeal Tribunal

dated 8 May 1996

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an appeal by the Adjudication Officer against the decision of Ballymoney Social Security Appeal Tribunal; whereby it was held that incapacity benefit was payable to the claimant from and including 18 December 1995.
2. The appeal is concerned only with the Tribunal's decision in respect of activity 14 in the Schedule to the Social Security (Incapacity for Work) (General) Regulations (NI) 1995 which sets out the "disabilities which may make a person incapable of work." Activity 14 is that of "remaining conscious other than for normal periods of sleep", and the Appeal Tribunal held that the claimant scored 15 points for descriptor 14(b):- "has an involuntary episode of lost or altered consciousness at least once a week." The claimant suffers, inter alia, from menieres disease and he described to the Tribunal how this affected him. The Tribunal also had advice from the Medical Assessor on the principal effects of the disease. The relevant features of that advice were:- (i) that the onset of dizziness was the major risk, and (ii) that although "altered consciousness" usually referred to fits or blackouts, it would be fair in the Assessor's opinion to include dizziness within that term if a person were unsure of what was going on around him.

The Tribunal's findings of fact included the following:-

"Altered Consciousness - at least twice a week he gets dizzy spells,

vertigo, often associated with nausea, making him confused and

unsure of his surroundings."

Their reasons for decision were:-

"The Adjudication Officer has not discharged the onus of proof. The

claimant has passed the All Work Test and is therefore entitled to

Incapacity Benefit. The main issue was the question of "lost or

altered consciousness" and whether the claimant's dizzy spells could

fall within that definition. The tribunal noted the distinction

between "lost" and "altered" consciousness and decided in the light

of the medical assessor's opinion that dizziness of the kind

suffered by the claimant falls within the definition of "altered

consciousness". The tribunal was satisfied that he had spells at

least twice a week."

3. The Adjudication Officer's grounds of appeal are:-

"The tribunal erred in law by misinterpreting the meaning of the

phrase "altered consciousness" in paragraph 14 of part 1 to the

Schedule to the Social Security (Incapacity for Work)(General)

Regulations (NI) 1995. Advice from the Social Security Agency's

medical services is that dizzy spells do not fall within the

definition of "altered consciousness" - written confirmation of

this is being obtained."

4. The claimant did not respond to the invitation to submit written observations on the appeal.
5. I held an oral hearing at which the claimant was present. The Adjudication Officer in attendance was Mr S J McAvoy who, two weeks previously, had been before me in a similar case - No. C13/96(IB). In that instance the claimant suffered from positional vertigo which caused dizziness and the Tribunal had held that she had not had episodes of "altered consciousness". Relying strongly upon the advice of the Agency's Senior Medical Officer, Mr McAvoy had then sought to uphold the Tribunal's decision, and I had indicated that I was inclined to agree. I made it clear, however, that the ultimate question was whether, on the evidence at their disposal in that particular case, it had been open to the Tribunal to decide as they did. The present case represents the opposite side of the coin in that in this instance the Tribunal's decision was that the claimant's dizzy spells were of such a nature as to be episodes of "altered consciousness" within the meaning of descriptor 14(b). Understandably, Mr McAvoy again relied upon the evidence of the Senior Medical Officer and endeavoured to persuade me that, on this occasion the Tribunal had failed to act in accordance with it. I reminded Mr McAvoy of my views on the importance of deciding each case on its own individual facts and of the Senior Medical Officer's reference to this in her advice. I also drew attention to the Medical Assessor's advice to the Appeal Tribunal on this occasion.
6. Although at the date of the hearing my decision in case No. C13/96(IB) was only in draft form, copies had been prepared and were made available to Mr McAvoy and the claimant. Paragraph 8, which has not been altered in any material respect, sets out my views on this matter. It reads as follows:-

"So far as the main point of the appeal is concerned I am also of the

opinion that the Appeal Tribunal did not err in law in failing to

hold that the symptoms of dizziness which the claimant experienced

were episodes of altered consciousness within the meaning of

descriptor 14 of the Schedule to the Social Security (Incapacity For Work)(General) Regulations (Northern Ireland) 1995. Mr Stockman may

be correct in saying that someone who experiences a feeling of

dizziness or loss of balance as a result of an attack of vertigo

might not be in full control of his actions; but I do not accept that

he would necessarily be in a state of altered consciousness. In my

opinion "consciousness" in this context means "awareness" and a

person has an involuntary episode of altered consciousness when he

has reached a stage of mental confusion such that he is no longer

properly aware of his surroundings or his condition. My knowledge

of medicine is limited; but as I understand it, such episodes are

most likely to be experienced by persons who suffer from certain

forms epilepsy or diabetes; but that is not to say that there could

not be other causes. Indeed, I would accept that a particularly

severe attack of vertigo might have such an effect. Altogether, my

views on this subject are very much in line with those of the

Senior Medical Officer; whose advice I would commend to the

Adjudicating Authorities. As she has been careful to point out,

"every case must be considered on its own merits". Applying this

reasoning and advice to the facts of the present case, the Appeal

Tribunal were in my view fully entitled to conclude that the claimant

had not had an involuntary episode of lost or altered consciousness

in the 6 months prior to the relevant date, and that her score for

descriptor 14 was accordingly 0."

Although in this instance a different decision was reached, in that it was held that the claimant's dizzy spells were episodes of "altered consciousness", I do not consider that there was any failure on the Tribunal's part to apply this reasoning and advice. As in case No. C13/96(IB), on the evidence at their disposal, the Tribunal were in my view entitled to conclude that the nature of the claimant's dizzy spells was such that he had experienced episodes of altered consciousness which qualified him for a score of 15 points on descriptor 14(b).

7. For the reasons given in paragraph 6 above this appeal will be dismissed.

(Signed): R R Chambers

CHIEF COMMISSIONER

21 January 1997