Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1999] NISSCSC C3/99(IB) (17 February 2000)

 


Decision No: C3/99(IB)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS) (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998 INCAPACITY BENEFIT Appeal to the Social Security Commissioner on a question of law from a Tribunal's decision dated 9 September 1998 DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal, leave having been granted by the Tribunal Chairman, against the decision dated 9 September 1998 of a Social Security Appeal Tribunal (hereinafter called "the Tribunal") sitting at Belfast. The Tribunal had allowed Mr C...'s appeal in relation to an Adjudication Officer's determination that Mr C... had not passed the "All Work Test" and consequently could not be treated as incapable of work from and including 9 March 1998. This was in connection with Mr C...'s claim for incapacity credits.
2. In its decision the Tribunal had scored Mr C... 15 points in the All Work Test: 3 points being for walking up and down stairs and 12 being for the activity of "Remaining conscious without having epileptic or similar seizures during waking moments." The latter is activity 14 of the All Work Test and the Tribunal's assessment meant Mr C... was to be considered incapable of work for the purposes of entitlement to the relevant credits. The Tribunal had considered that there were two days in respect of which it fell to be determined whether or not Mr C... was incapable of work. The first such day was the date of the Adjudication Officer's decision (9 March 1998) and the second the date of the Tribunal hearing (9 September 1998). It will be seen that there were exactly 6 months between the Adjudication Officer's decision and the Tribunal hearing.
3. It should be noted that this decision was given before the legislative amendments which took effect in July 1998 and which provided that Tribunals were not to take into account any circumstances not obtaining at the time when the decision appealed against was made.
4. I held an oral hearing of the appeal which was attended by Mr Fletcher of Central Adjudication Services, representing the Adjudication Officer and by Ms Slevin of the Law Centre (NI), representing Mr C... who also attended.
5. Mr Fletcher put forward two grounds of appeal both of which related to the activity 14. No issue was raised and none is apparent to me in relation to the activity of walking up and down stairs.
6. Mr Fletcher submitted that the Tribunal had erred in law by awarding 12 points for activity 14. He said that the claimant suffered from hydrocephalus and the condition did not give rise to epileptic or similar seizures. Secondly he submitted that even if the Tribunal had not erred in this respect it had not correctly considered the periods which were before it and that it did not have evidence to support its findings on the frequency of the acute hydrocephalic attacks. Mr Fletcher subsequently agreed that the Tribunal did appear to have considered two six month periods ie six months before the Adjudication Officer's decision and the period between the Adjudication Officer's decision and the Tribunal hearing but stated that he did not consider that the Tribunal had the evidence to make the relevant finding which it had done that the claimant suffered the attacks in question twice in each of those six month periods.
7. Both Mr Fletcher and Ms Slevin referred me to two decisions of my own in connection with the said activity 14. The first such decision was A10/98(IB) and the second C30/98(IB). In connection with the question of the time periods to be considered, Mr Fletcher referred me to decision C49/97(IB) (a decision of the Chief Commissioner).
8. With regard to the first ground of appeal Mr Fletcher submitted that the Tribunal did not seem to have adequately investigated the nature of the seizures, if indeed they were seizures. He felt that that was a question which demanded medical evidence. Similarly he submitted that there was no indication that the Tribunal had sought the Medical Assessor's advice on the matter.
9. Ms Slevin stated that the main issue was the interpretation of activity 14. Referring me to my own two decisions in relation to that she said that the legalisation must be read to make it work and that the definition of Dr M… quoted in those decisions was a very technical one. She referred me to a report which she obtained from Mr C…, Consultant Neurosurgeon at the Royal Victoria Hospital, where he had stated "My understanding of the term seizure is that it is a lay person's term and may cover a wide variety of possible events such as epilepsy, simple faints etc. Patients with acute hydrocephalus may undergo hydrocephalus attacks which is a sudden loss of consciousness, arching of the back and unconsciousness, and usually indicates very high intracranial pressure with impending coning". This report had not been before the Tribunal and I indicated that unless I considered the Tribunal had erred in law, I would not be prepared to take on board the aspects of it which related specifically to Mr C.... I could not consider the aspects of the report which referred specifically to Mr C... when deciding whether the Tribunal had erred in relation to this matter. I would use the report only as an aid to interpretation unless I decided there was an error in law.
10. In Ms Slevin's submission, activity 14 should be construed to concentrate on the manifestation of the seizure rather than on its origins or concomitant. She stated that a claimant could easily give evidence on that and get evidence from some family members etc. as to the manifestation eg. was there unconsciousness?, were there disturbances of movements etc?. Ms Slevin stated that an epileptic seizure could manifest itself in a variety of ways from a brief period of absence in a petit mal attack to a full blown epileptic seizure with loss of consciousness, convulsive movements etc. She stated that the Tribunal should ask if the seizures in question affected daily living in the same way as someone with epileptic seizures was affected.
11. Ms Slevin agreed that the purpose of the amendment of activity 14 was to narrow down the categories of persons who could qualify for points under the activity. She stated that using the interpretation which I had given in C30/98(IB) would mean that if there was no neurological evidence as to the causation of periods of altered consciousness, then the person could not qualify. She stated that this caused considerable practical difficulties for the person concerned.
12. In reply to my question as to whether or not a person suffering such attacks would not in fact be fully medically investigated, Ms Slevin stated that they probably would be.
13. With regard to the instant case she submitted that the Tribunal had gone into the matter in detail, had found how Mr C... was affected and what he experienced when he had an acute hydrocephalic attack and was entitled to reach the conclusion it did.
14. As regards the issue of the periods in question she agreed that the Tribunal had to make its findings on a six month period prior to the decision. Her understanding of C49/97(IB) was that there was at least one period of six months which had to be considered.
15. Ms Slevin submitted that if the Tribunal's finding was defective in this respect that was not fatal to its decision in light of Mr C…'s subsequent report.
16. Ms Slevin submitted that the Tribunal should have considered the mental health descriptors. She acknowledged that no mental health problems were mentioned to the Tribunal at hearing nor in the doctor's report, nor on the questionnaire but they were mentioned by the Citizen Advice Bureau in a letter which it submitted. I raised a question as to whether the confusion mentioned therein was understandable as confusion during the acute hydrocephalic attacks and referred also to the fact that the Citizens Advice Bureau had not indicated that any of the mental health descriptors were relevant though it had set out the descriptors which it did consider relevant. Ms Slevin still submitted that the Tribunal should have taken on board the mental health descriptors.
17. As regards this final point, I do not consider that the issue of any mental health illness was directly or by clear implication before the Tribunal. The submission from the Citizen Advice Bureau was not itself evidence and the manner in which it referred to confusion was quite easily understandable as meaning confusion during a period of acute hydrocephalic attack. This is borne out further by the fact that the Citizens Advice Bureau submission specifically set out the activities which it considered were relevant and none of them related to any of the mental health descriptors. I consider there was no breach of any investigative duty by the Tribunal in this respect.
18. With regard to the other issues raised I deal with the first ground of appeal. I have not changed the view expressed in paragraphs 13 and 14 of C30/98(IB). Activity 14 prior to the amendment which took effect in 1996 was phrased as follows:

"Remaining conscious other than for normal periods of sleep".


It was amended to read "Remaining conscious without having epileptic or similar seizures during waking moments". The activity was thus amended in two ways. Firstly, only involuntary episodes of lost or altered consciousness coming from seizures could be considered and secondly, only episodes coming from epileptic or similar seizures. An epileptic seizure is a quite clearly defined medical condition though its manifestations may be varied. The seizure itself has the common characteristic of an excessive neuronal discharge. The seizure itself is not solely the manifestations apparent to the naked eye nor the subjective sensations experienced by the sufferer. It includes the recurrent excessive neuronal discharge which produces those manifestations. I should mention also that the definition of epilepsy mentioned at paragraph 13 of C30/98(IB) came not from Dr M…, but from Black's Medical Dictionary as was stated in the decision.

19. It is thus only seizures which are similar to epileptic seizures which can be considered. Epileptic seizures are excessive neuronal discharges manifested by transient episodes of motor, sensory or psychic disfunction with or without unconscious or convulsive movements. The manifestation is how the attack shows itself but the epileptic seizure is the recurring excessive neuronal discharge and the manifestation. In other words the excessive neuronal discharge is itself part of the seizure, it is in no way separate from it.
20. Epileptic seizures qualify but the seizures which can qualify are not limited to epileptic seizures. Seizures which are similar to epileptic seizures can also qualify. It is worthy of note that the legislation does not refer to them being similar in manifestations but to them being "epileptic or similar seizures". As Ms Slevin stated the manifestation of an epileptic seizure can be extremely wide. They can be very similar to symptoms or conditions which have no relationship to seizures eg. a period of absence due to severe depression or syncopal attacks due to arthritis in the neck. The intention of the amendment being to narrow down the episodes which could qualify and to narrow them down by type, it appears to me quite clear that the legislator intended more than manifestation to be looked at. It also appears quite clear that there is no alternative to the examination of the characteristics of the seizure and this must include its origin. The manifestations are not the sole characteristic.
21. As regards the Tribunal's approach in this case, the decision was before the issue of my decision in C30/98(IB) but it appears to me that the approach of the Tribunal was similar to the approach in that decision. The Tribunal has examined the nature of the episodes of involuntary lost or altered consciousness, has examined their origins - a build up of pressure in the brain, and has concluded that they come from seizures similar to epileptic seizures. In other words it has applied the correct approach to the legislation. I therefore have to ask myself if the conclusion which the Tribunal reached was a reasonable one.
22. Mr Fletcher considered that the Tribunal should have sought medical evidence that the seizures resulted from an excessive neuronal discharge. In this situation where there was a clear medical diagnosis of a physical brain problem of pressure on the brain and of the attacks resulting from the brain problem, I do not think that that was necessary. There will obviously be many occasions and indeed possibly most where if that type of clear diagnostic evidence was not present the Tribunal may either award no points or afford an opportunity to the claimant to obtain that evidence. As I mentioned previously where a person is experiencing involuntary episodes of lost or altered consciousness due to epileptic or similar seizures, medical evidence should be readily available and investigation will in all probability have taken place.
23. It appears to me implicit in the Tribunal's conclusion that both in origin and in manifestation it considered the episodes in question to be coming from seizures similar to epileptic seizures. It was not required to consider them as identical. Was the Tribunal reasonable in its conclusion? Bearing in mind that the problem here was a clearly medically diagnosed physical disorder of the brain causing the seizures and bearing in mind also the manifestation thereof which was similar to epilepsy, I consider that this conclusion was reasonable. I do not say that a Tribunal which reached a different conclusion would be wrong in law or that I would have reached the same conclusion myself. The conclusion is, however, one which was reasonable for the Tribunal to reach and as such is not an error of law.
24. Before leaving this matter I would wish to comment on whether or not what actually occurred was a seizure. It could be said that what happened was a gradual event rather than a sudden onset. I am, however, content that it is only when pressure reached a certain level that the acute attacks occurred and that then they were sufficiently sudden to fall within the term "seizure".
25. As regards the second point made by Mr Fletcher, ie the period of time to be considered, I have read the decision of the Chief Commissioner in C49/97(IB). I share the Chief Commissioner's view that the Tribunal had to take into consideration the six month period immediately prior to the Adjudication Officer's decision and the further period (which in this case coincidentally was six months) between the date of the Adjudication Officer's decision and the Tribunal's hearing. I am content, having read the reasons for the decision and in particular the penultimate paragraph of the reasons that the Tribunal did adopt the approach set out by the Chief Commissioner in C49/97(IB).
26. One further point was raised by Mr Fletcher as to whether or not the Tribunal had sufficient evidence to make a finding that there had been two episodes of altered consciousness in the two relevant six month periods. The two periods are the six months prior to the Adjudication Officer's decision and the six months prior to the Tribunal's decision. I do appreciate that the Tribunal had considerable difficulty in obtaining exact evidence in this case as to the dates of the episodes in question, other than that one was in January 1998 and one in May 1998 and that there were two or three other hospital attendances coinciding with episodes of altered consciousness. I am satisfied that the Tribunal has asked the correct question and that its conclusion that there were two episodes in each of the relevant six month period is sustainable on the evidence. The Tribunal has obviously questioned the claimant on the matter, had a lot of information about repeated hospital attendances associated with periods of altered consciousness and has made findings of fact based on applying its own judgement to the evidence given. I consider that it was entitled to reach the conclusion that there had been two relevant episodes in each of the six month periods in question and that there is no error in that respect.
27. I therefore consider that the Tribunal's decision was not in error of law. I do not say that there will not be other cases where more precise evidence of the dates would be necessary, but I consider that the Tribunal's finding that there were two episodes in each of the relevant six month periods was sustainable on the evidence and I consider there was no error of law in this respect.
28. I therefore dismiss the appeal.

(Signed): M F Brown


COMMISSIONER



17 February 2000