The Social Security and Child Support Commissioners
SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT 1992
SOCIAL SECURITY ADMINISTRATION ACT 1992
APPEAL FROM DECISION OF SOCIAL SECURITY APPEAL TRIBUNAL ON A QUESTION OF LAW
DECISION OF THE SOCIAL SECURITY COMMISSIONER
"Has had an involuntary episode of lost or altered consciousness once in the last 6 weeks [sic]" - document 59 of the bundle.
The question, however, in terms of said activity related to the period of:-
"... the 6 months before the day in respect of which it falls to be determined whether [the individual] is incapable of work for the purposes of entitlement to any benefit, allowance or advantage." [Descriptor (e)].
If, as appears, the adjudication officer was only looking at the previous 6 weeks that was an error of law in his decision. Indeed it may explain why he did not look more widely at the history as after discussed. The claimant appealed the adjudication officer's decision to the tribunal who did not note that possible error.
"On considering all the available evidence, the tribunal note the BAMS report as showing most accurately the appellant's overall condition as at the date of decision."
That quotation tends to indicate a limitation upon consideration to the date of decision. In view of the uncertainty I must hold the decision to be in error of law because matters were not considered to the date of decision. That is in addition to the possible error in the adjudication officer's decision which does not appear to have been corrected by the tribunal although they do refer to the correct part of the schedule. And they did themselves apply the correct test because their third finding of fact is this:-
"The appellant's condition is such that she has infrequent episodes of blackouts resulting [in] unconsciousness, no more frequently than once in 6 months."
But that, in turn, leads to another error of law.
"... remember date of last blackout but thinks it was at least 4 months ago and cannot remember the previous one. These were fully investigated at her previous doctors and no cause was found. She claims that they are not frequent and never come more often than once every 2 months."
The adjudication officer proceeded as already indicated and whilst, as Mr Armstrong submitted, little might have been required to explain why the doctor's evidence was preferred, in my judgment and since the issue here was one of historical fact rather than something involving medical opinion rather more was to be expected of the tribunal. I therefore uphold the first ground of appeal which is that there is no reason given as to why the BAMS report was preferred to the evidence of the claimant and her father. But that is not an end of the matter.
"... be significant period when an [individual] could do work that he could be reasonably expected to do. [CS/90/86]."
As Mr Deputy Commissioner Newsome pointed out a similar approach had been applied in respect of attendance allowance - R(A)2/74. Then in decision CIB/911/97 Mr Deputy Commissioner Jacobs endorsed the more general approach. In April 1998 Mr Commissioner May QC explained the burden that would fall upon tribunals if Mr Commissioner's Howell's approach was to be the preferred approach. He proceeded, in paragraph 11, to direct the new tribunal in that case to determine the matter on a broad and reasonable basis.
"a test of the extent of a person's incapacity ... to perform the activities prescribed ... putting the two together what results is a test for this case in this regard as the extent of this claimant's incapacity to remain conscious without having epileptic or similar seizures as from and after 6 January 1997."
So reading the whole wording together, it becomes clear that the only failures to remain conscious that can be taken into account are those consequent upon epileptic or similar seizures. As I had originally approached the matter, looking to the activity alone, it seemed to me that the test was that of remaining conscious without having epileptic or similar seizures, so that if the cause of becoming unconscious was epileptic or similar seizures they would not count. I am now satisfied that that was incorrect.
W. M. Walker QC
2 June 1998