UK Social Security and Child Support Commissioners' Decisions

R(A) 4/92

Mr. M. Heald QC CA/51/1989
14.8.91


Supervision – epilepsy – whether lack of warning implies that danger could not be avoided by supervision

The claimant suffered from blackouts, epilepsy and narcolepsy. He applied for attendance allowance on 27 September 1985. On 14 November 1985, a delegated medical practitioner decided that the claimant neither satisfied, nor was likely to satisfy, any of the conditions of entitlement in Section 35(1) of the Social Security Act, 1975. The claimant applied to the Attendance Allowance Board for a review of this decision. On 17 February 1988, the Board reviewed, but did not revise the decision, holding that, because of the absence of warning, any risk of blackout could not be avoided by supervision. The claimant appealed to the Commissioner.

Held that:

the lack of warning in cases of epileptic attacks was not cause enough to refuse benefit. If another person's presence was sufficient to reduce the amount of danger involved when a sudden attack occurred, then that may be sufficient to comply with the relevant conditions of entitlement.

The appeal was allowed.

DECISION OF THE SOCIAL SECURITY COMMISSIONER


1. My decision is that this appeal must be allowed. The case is remitted for reconsideration by the Attendance Allowance Board, or its delegated medical practitioner.
2. On 27 September 1985, the claimant applied for an attendance allowance. After a medical report had been prepared as to his condition, a decision was taken by a delegated medical practitioner of the Attendance Allowance Board on 14 November 1985 that the claimant did not satisfy or would be likely to satisfy any of the conditions in section 35(1) of the Social Security Act 1975, which sets out the conditions for the grant of attendance allowance.
3. The claimant sought a review of that decision, and on 17 February 1988 a review decision was issued by the Board, in which three members had participated. With the decision was a list of all the evidence taken into account by the Board. The decision of the Board, set out in paragraph 4 of the decision, was:

"we have reviewed the decision of 14 November 1985 and found that neither a day nor a night condition is satisfied. Accordingly, our decision on review is that the decision of 14 November 1985 should not be revised."

The claimant now appeals against that decision, with the leave of the Commissioner. I held an oral hearing at Liverpool on 10 July 1991, at which the claimant was present, and was represented by Mr. J. McGougan, Manchester Welfare Rights, and by Mr. D. Cornwell, of the Solicitor's Office DHSS, for the Secretary of State. In addition to the oral submissions on behalf of both parties, Mr. McGougan presented a written submission summarising the arguments he wanted to put forward.

4. The claimant, who is now 62 years old had a number of matters of complaint about his health, but the principal one, and that which was the basis of his claim for attendance allowance, was that he is subject to episodes of blackouts, during which he is unaware of what he is doing, although he may continue to be active, but during which he is prone to suffer injuries by contacts with dangerous objects about the house, or from falls. In the various medical reports obtained on his own behalf, and also obtained on behalf of the Board there are a number of references to both narcolepsy, and temporal lobe epilepsy.
5. The first complaint of the claimant to the decision of the Board is that when setting out their findings as to his complaints, no reference is made to narcolepsy. It was pointed out that a report of a neurologist, Dr. Shepherd, of 18 March 1986 did refer to narcolepsy and there are also references in a report from his general practitioner, Dr. Ahmed and Dr. Shafiq. These references are contained in paragraph 7 of the decision, but there is no indication in the decision as to whether the Board accept or reject earlier medical opinions that was one of the conditions from which the claimant was suffering. In my view, if the Board had decided to reject his diagnosis, they ought to have said so, and the fact that they did not leaves an ambiguity, which is not satisfactory, or in accordance with the Commissioner's decision R(A) 1/73. The Board held that they did accept that the claimant suffered from "absence attacks". They appreciated that the attacks gave the claimant cause for concern and might give rise to some danger; the decision went on, in paragraph 8:

"he is, in our view, capable of refraining from any activity which could prove dangerous should any type of blackout or absence occur, such as using electrical, mechanical, sharp or otherwise dangerous equipment. We appreciate that when suffering an attack of automatic behaviour [the claimant] could not be relied on to avoid using such equipment unless it were either rendered inaccessible or inoperative while he was unsupervised or there was someone present to intervene. We must therefore consider whether he does require someone present to intervene to prevent substantial danger in the event of an attack.

6. In our medical opinion any risk of danger from a blackout cannot be avoided by supervision. The absence of any warning would prevent intervention quickly enough to avoid a fall and the risk of danger can be minimised by arranging the furniture."

Later in the same paragraph, the decision continues:

"his brain continues to function normally on one level - it is his recollection of events that is faulty - not his control over his immediate actions."

It is submitted that the two statements quoted are inconsistent with each other, and the submission to that effect is supported on behalf of the Secretary of State. It is not immediately clear what is signified by "functioning on one level" but the words immediately following may indicate that it involves some notion of amnesia, where the person concerned continues in fact to function normally, but later has no recollection of what has happened to him. This concept, however, cannot in my view be reconciled with the earlier passage quoted to the effect that any dangerous or harmful household implements ought in effect to be locked away to prevent the claimant misusing them to his personal danger while suffering from a blackout. In my view, the failure to explain this apparent inconsistency does go to the root of the reasoning in the decision, and amounts to an error of law.

7. The next matter complained of on behalf of the claimant are the opening words of paragraph 9 quoted above "any risk of danger from a blackout cannot be avoided by supervision." There was no dispute that the claimant had any warning of the attacks he suffered, and the effect of the passage quoted would seem to be that in such an instance there would be no point in providing supervision because it could not intervene quickly enough to assist the claimant. The requirement of section 35(1)(a) for entitlement to attendance allowance is if a person "is so severely disabled physically or mentally that . . . he requires from another person . . . continual supervision throughout the day in order to avoid substantial danger to himself or others". That it is accepted is the relevant part of the conditions of entitlement to which the case of the present claimant should be related. He must show that he "requires .... supervision" from another to avoid substantial damage to himself. The passage quoted from paragraph 9 of the decision would seem to imply that unless another person was able to intervene at the very moment of the happening of the attack there was no purpose in his presence and there was no need for such a person to be present at all. This I cannot accept. To take a simple example. If the claimant were to have an attack on going up a staircase, the presence of another person immediately below him on the staircase might well be capable of preventing substantial damage on the claimant. It is not in my view within the purpose of the Act that, where a person suffers from epileptic attacks without any previous warning, they are thereby not entitled to receive attendance allowance. If the presence of another person is sufficient to reduce the amount of danger involved in the happening of the sudden attack, that may well be sufficient to comply with the conditions of entitlement. Without setting out too detailed an analysis, in my view the conclusion apparently reached by the Board in the passage quoted from paragraph 9 is entirely contrary to the language and thinking of the Court of Appeal in Moran v. Secretary of State, annexed to R(A) 1/88. Such a conclusion was submitted on behalf of both parties before me, and I accept that submission.
8. In my view, the errors of law that I have decided above occurred in the decision of the Board, and this appeal must be allowed. The case is remitted for reconsideration by the Attendance Allowance Board, or its delegated medical practitioner.

Date: 14 August 1991 (signed) Mr. M. Heald QC

Commissioner