Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL                                           Appeal No.  CIB/1612/2009

ADMINISTRATIVE APPEALS CHAMBER

Before Judge S M Lane

The decision of the Sheffield First-tier tribunal heard on 13/3/09 under reference 138/08/02474 involves an error on a point of law.  The tribunal’s decision is SET ASIDE.

The appeal is REMITTED to the First-tier Tribunal (Social Entitlement Chamber) for a complete rehearing on all issued.

REASONS FOR DECISION

1. This appeal is brought by the claimant with my permission.  He appeals against the First-tier Tribunal’s decision to confirm the outcome decision made by the Secretary of State on 13/6/08 that the claimant was no longer incapable of work, having failed to score sufficient points from the physical and/or mental health descriptors of the PCA to pass.  The claimant had been awarded 4 points for mental health descriptors and nil for physical descriptors by the decision maker.  Although the tribunal varied the number of points awarded in respect of the mental health descriptors by increasing them to 7, this still was not enough to pass on the basis of mental health descriptors alone, for which 10 points are necessary. 

2. The claimant’s representative submitted that the tribunal erred in law in their treatment of the physical descriptor of consciousness which had been put in issue at the hearing.  Since the claimant’s evidence was that he had stress related seizures (blackouts) 4 – 5 times a week, he would potentially have been entitled to 15 points from the physical descriptors alone.  The tribunal did not accept that the claimant had fits or altered consciousness, but the basis upon which they did so was inadequate. 

3. The tribunal’s view was that no physical, rational or medical cause of the altered consciousness had been found after full investigations, a seizure had never been witnessed by any medic, no injuries had been recorded despite the number of seizures asserted, he was not on any medication, had only been offered counselling (which the tribunal considered inconsistent with fits), had not been given any points by the approved disability analyst for consciousness and, taking the Statement of Reasons as a whole, had a reasonably normal lifestyle including going out and about in the town regularly and visiting his girlfriend almost daily.  The only activities he had given up because of fear of seizures were target shooting and going to live football matches.  The tribunal did not record details of what actually happened during the course of these episodes.  On the other hand, the Record of Proceedings indicates that the appellant did suffer ‘a fat lip’ from falling on one occasion and that he was referred to a mental health unit to deal with the blackouts.  A careful reading of the IB85 rather indicates that the approved disability analyst did not rule out stress related blackouts, but rather that he did not consider them to be seizures.

4. Although the case is marginal, I consider that the tribunal was unduly swayed by the view implicit in their reasons that only an epileptic seizure counted for the purposes of this Activity, and that a stress induced seizure was could not be taken into account.  Neither proposition is correct. 

(i)              Stress induced seizures are a medically known phenomenon to which the label ‘Non Epileptic Attack Disorder’ applies and for which counselling is a medically recognised form of treatment; and

(ii)             In R(IB) 2/07 the Tribunal of Commissioners held that a person had an episode of altered consciousness when he was no longer properly aware of his surroundings or his condition, so as to be incapable of any deliberate act (paragraphs 11 and 47) and that ‘seizures’ were involuntary, overwhelming and sudden and the phrase ‘similar seizures’ was to be construed by reference to the similarity of the effects of the seizures to the effects of epileptic seizures, including the degree of suddenness of the loss or alternation of consciousness but without consideration of whether the seizures were characterised by the discharge of cerebral neurones (paragraphs 11, 41, 42 and 46).  I do not doubt that this decision is correct.

5. The Secretary of State, who does not support the appeal, has pointed out that a copy of R(IB)2/07 was in the Submission bundle.  That is true, but the comments of the tribunal do not indicate that they had taken it into account its effect.  The Secretary of State also seeks to argue in his response to the Upper Tribunal that all seizures display the presence of abnormal electrical activity in the brain.  I do not consider that this argument is open to the Secretary of State in light of the decision in R(IB)2/07.  He also argues that if the seizure is, indeed, stress induced, it cannot be take into account under the physical descriptors by virtue of regulation 25(3) of the Social Security (Incapacity for Work)(General) Regulations 1995 which provides that:

(3).  In determining the extent of a person’s incapacity to perform any activity listed in Part I or Part II, it shall be a condition that the person’s incapacity arises

            (a) in respect of a disability listed in Part I, from a specific bodily disease or disablement; or

            (b) in respect of a disability listed in Part II, from some specific mental illness or disablement. 

6. I do not consider this to be the correct analysis.  Although the trigger for the attack may be stress, the mechanism that causes the blackout can only be physical, and the effect is also physical. 

7. I consider that in all of the circumstances, the only correct outcome for this appeal is remittal to the First-tier Tribunal for a full rehearing on all issues. 

8. Although it is a matter for the district First-tier Judge who gives directions for the rehearing to decide, it may be useful to call for GP records and hospital records from the Carlisle Centre, which appears to have treated the claimant for his mental health problems and asserted blackouts.  These might give a fuller picture of their nature and extent.  It will then be for the tribunal to decide whether the appellant has episodes of altered or lost consciousness as defined in R(IB)2/07 and if so, how often. 

[Signed on original]                                                S M Lane

                                                                               Judge of the Upper Tribunal

[Date]                                                                     26 November 2009