UK Social Security and Child Support Commissioners' Decisions

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Cite as: [2004] UKSSCSC CIB_3589_2004

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DECISION OF THE SOCIAL SECURITY COMMISSIONER

My decision is given under section 14(8)(a)(ii) of the Social Security Act 1998. It is:

I SET ASIDE the decision of the Burnley appeal tribunal, held on 13 August 2004 under reference U/06/063/2004/00695, because it is erroneous in point of law.

I make findings of fact and give the decision appropriate in the light of them.

I accept the claimant's evidence on the nature, frequency and effects of her migraines as summarised in this decision.

My DECISION is that the claimant remained incapable of work on and from 13 May 2004.

History and background

This case concerns the claimant's capacity for work on and from 13 May 2004. She had previously been accepted as incapable of work from 1999.

A personal capability assessment of the claimant's capacity for work was undertaken in 2003 and 2004. The claimant completed a self-assessment questionnaire. She identified problems with standing, walking and negotiating stairs, which carried a score of 10 points. She also gave details under 'Other information' of frequent and severe migraines. The claimant's GP completed a questionnaire, which referred to 'frequent severe headaches' that were 'probably long term but hopefully will improve'. The Secretary of State's medical adviser confirmed the claimant's self-assessment score. The decision-maker then decided that the claimant had not satisfied the personal capability assessment.

The claimant exercised her right of appeal to an appeal tribunal. She attended the hearing and gave evidence. The tribunal confirmed the points awarded by the Secretary of State and dismissed the appeal.

The claimant was given leave to appeal to a Commissioner by a district chairman of tribunals. The Secretary of State has supported the appeal and invited me to direct a rehearing. The claimant has asked me to substitute a decision without a rehearing.

The claimant's migraines

The evidence

The claimant described her migraines in her self-assessment questionnaire. She wrote that the pain was so intense that she had to go to bed, that her medication made her drowsy, and that she was unable to do anything until the following day.

The chairman's record of proceedings contains the claimant's evidence at the hearing. In answer to questions by the medically qualified panel member, she said:

'Migraine not better – get blindness and flashing lights. Taken to hospital as thought had stroke – but was migraine. Seen Neurologist 4 years ago – GP is fully aware of it. Flashing lights quite often – blindness not often. Ordinary migraine take tablets – Maxalt. Ordinary migraine twice a week. Had since young – got used to it. In May ¾ in 2 weeks with flashing lights.

And to the chairman she said:

'Headaches last 24 hours – time depends how many tablets. When have them know what is going on around me. Not unconscious.'

The tribunal's reasoning

This is set out by the chairman:

'The Tribunal accepted that the episodes of migraine were persistent and unrelenting. They created a major restriction to the appellant's daily life.

'The only functional area under which migraines could be considered was that of lost or altered consciousness. The Tribunal questioned the appellant on this aspect of the matter and she stated that at no time during an attack was her level of consciousness reduced. During attacks she is at all time aware of her surroundings and whatever is taking place around her.

'In such circumstances the Tribunal could not allocate any further points. It was much in sympathy with the appellant but the benefit is structured on the basis of the functional areas and there is no flexibility in the scheme.'

How the tribunal went wrong in law

The tribunal decided that the effects of the claimant's migraines could only be considered under activity 14, which deals with consciousness. That was a mistake. The tribunal's reasoning shows that it misdirected itself on the personal capability assessment.

The personal capability assessment is concerned with a claimant's capacity for work. It operates by reference to disabilities. In other words, it is concerned with the effects of disabilities on a person's ability to perform work-related functions. The physical disabilities section of the personal capability assessment is concerned with disabilities from 'a specific bodily disease or disablement' - see regulation 25(3)(a) of the Social Security (Incapacity for Work) (General) Regulations 1995.

In order to apply the legislation correctly, a tribunal has to follow a series of links from the disease (or disablement) to the symptoms to the disabilities to their effects on the work-related activities of the personal capability assessment. All those links are factual.

In the case of a migraine, the chain works like this. A migraine is a bodily disease. It involves symptoms – pain and disruption of vision. Those symptoms restrict the claimant's ability to function in various way (disabilities). The personal capability assessment allows those symptoms and their effects to be taken into account in respect of any activity which they affect. For example, flashing lights or blindness during a migraine may affect the activity of negotiating stairs without holding on and the activity of vision.

Migraines are not continuous. Their effects are intermittent. That does not mean that they are irrelevant to the personal capability assessment. They may be relevant in one of two ways. First, they may be relevant to the 'sometimes' descriptors in the activities of rising from sitting and bending and kneeling. Second, they may be relevant to the frequency and regularity with which a claimant can undertake activities.

The tribunal limited the potential relevance of the symptoms of migraine to activity 14. There is no justification in the legislation for doing so. Nor is there any justification in the nature of migraine or the effects of its symptoms. The tribunal limited the relevance of the claimant's evidence of migraines to one activity without justification.

My decision

The claimant's own assessment of her disablement apart from migraines was confirmed by the medical adviser. Her GP's description of her migraines accords with her own. The tribunal questioned the claimant and appears to have accepted what she said. In those circumstances, I am entitled to accept the claimant as a credible witness and her evidence as reliable.

I have to consider the case at the time of the decision under appeal, which was mid-May 2004. At that time, she experienced 3 or 4 migraines within two weeks. The accompanying headaches are described as severe, last 24 hours and confine her to bed. They render her unable to function until the next day.

The claimant's migraines are sufficiently severe that they affect her ability to rise from sitting and to bend or kneel to the floor. She would not be able to do either of those activities without some support. In those circumstances, the 'sometimes' descriptors for those activities apply. Each scores 3 points, making a total of 6. The claimant already has a score of 10. The additional 6 bring the total to 16, which is sufficient to satisfy the assessment.

Disposal

I allow the appeal, set aside the tribunal's decision and substitute the decision that it should have given on the evidence.

Signed on original
on 7 December 2004

Edward Jacobs
Commissioner