Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CE/497/2010

ADMINISTRATIVE APPEALS CHAMBER

Before UPPER TRIBUNAL JUDGE WARD

Decision: The decision is allowed.  The decision of the First‑tier Tribunal sitting in Manchester on 14 October 2009 under reference 946/09/02880 involved the making of an error of law and is set aside.  The case is referred to the First‑tier Tribunal (Social Entitlement Chamber) for rehearing before a differently constituted tribunal in accordance with the directions set out in paragraphs 16-20 of the Reasons. 

Attendances:

For the Appellant: Ms S Guest, Solicitor, Citizens Advice Bureau

For the Respondent: Mr S Cooper, Solicitor

REASONS

1. The claimant had been awarded employment and support allowance from 15 December 2008.  On 15 April 2009, after the claimant had had a medical examination, the Secretary of State decided, on supersession, to disallow her claim, awarding zero points in respect of the descriptors.  On 14 October 2009 the First‑tier Tribunal upheld that decision and the claimant subsequently appealed to the Upper Tribunal, with permission of the First‑tier Tribunal.  Meanwhile, on 15 October 2009 the claimant had claimed employment and support allowance again and this time was placed in the support group, based on the same medical condition.  Just because a different decision taken on behalf of the Secretary of State should have reached a different conclusion does not of course mean that the First‑tier Tribunal’s decision under appeal to the Upper Tribunal was in error of law.  It does however mean that in this case the practical effect of my decision is limited to the “closed” period of 15 April 2009 to 14 October 2009 (both days included). 

2. The claimant suffers from Basilar migraine.  Three times a week she experienced episodes of dizziness, with sensations of blurred or altered vision associated with a feeling as if she was spinning, as well as of the room and external environment spinning.  The question was whether these episodes were sufficient to meet the test of descriptor 11, as an episode of “altered consciousness, resulting in significantly disrupted awareness or concentration”. 

3. It was common ground that (a) the episodes were involuntarily, (b) they did not involve a loss of consciousness and (c) if they fell within the descriptor, were of sufficient frequency to result in an award of 15 points.

4. The tribunal’s decision contained the following:

“11. The Tribunal considered whether [the attacks experienced by the claimant] could equate to “altered consciousness, resulting in significantly disrupted awareness or concentration”.  The Tribunal noted CIB/16122/96 where the view of Commissioner Angus was that the sudden onset had to be of something similar to an epileptic seizure in its effect, not similar in its cause.  Commissioner Parker, In CSIB/196/03, when looking at how cough syncope affected a claimant, was also of the view that the effect must be similar to an epileptic seizure in characteristics other than mere loss of or altered consciousness.  The Tribunal also noted the leading case of R(IB) 2/07(T), where the Tribunal of Commissioners stated that what was envisaged by alteration of consciousness was such that the sufferer was not capable of any deliberate act, and that merely losing some control of one’s actions would not suffice.  These cases all relate to the Incapacity Benefit descriptors.  The Tribunal noted that in Volume 1 of the Sweet & Maxwell publication on Social Security Legislation, in the commentary to the ESA descriptors at page 1150 in the 2009/10 edition, mention is made that the above narrow approach may no longer be applicable due to the addition of the link to significantly disrupted awareness or concentration in the ESA descriptor.

12. The Tribunal looked carefully at the effect of these attacks on [the claimant] and whether they come within the ESA descriptor.  [After referring to where the tribunal had set out evidence from the claimant and her GP, it continued.]  The tribunal noted that she could either get herself upstairs to bed or onto the settee during an attack in the house, and merely had to ensure she sat down if outside her home.  She had also trained her dog to bark if the smoke alarm went off; this implied that she would be able to react in a crisis.  She does not suffer from hallucinations during these attacks; she knows what is happening to her and can recall this, and suffers no loss of time or place.  The Tribunal took into account all the evidence she and her GP gave us as to the effect on her abilities during an attack inside and outside her home.  On the balance of probability, the Tribunal concluded that her basilar migraine attacks did not equate to altered consciousness resulting in significantly disrupted awareness or concentration.”

5. In H v East Sussex County Council and Others [2009] EWCA Civ 249 the Court of Appeal endorsed a line of authority going back to the employment case of Meek v Birmingham City Council [1987] IRLR 250 regarding what is to be expected of a statement of reasons for it to be legally sufficient.  The requirements of that line of case law include that there should be sufficient account of the facts and of the reasoning to enable the relevant appellate tribunal or court to see whether any question of law arose and that the parties should be able to understand why they won or lost.

6. I am driven to the conclusion that I cannot see whether a question of law arose in this case.  In paragraph 11 of its decision, the tribunal informed itself of a number of decisions, including “the leading case of R(IB) 2/07(T)”, which, as it noted, applied to the incapacity benefit descriptors.  It also noted the view of commentators that the approach in those decisions “may no longer be applicable” (my emphasis), because of the changed wording in the ESA descriptors. 

7. As Mr Cooper accepts, nowhere does the tribunal then go on to say, in terms, either that they did, or that they did not, apply the previous case law and if they did, to what extent.  However, he argues from paragraph 12 of the tribunal’s decision that the tribunal did address the relevant test under the Employment and Support Allowance Regulations, as the last sentence of that paragraph shows. 

8. That the tribunal’s reasons can be read in more than one way is evident, not least in that the earlier position of the Secretary of State adopted in written submissions (page 34, paragraph 18), before, I imagine, Mr Cooper was instructed, was that the tribunal did apply the “so as to be incapable of any deliberate act” test created by R(IB)2/07 and was right to do so.

9. In my view, even Mr Cooper’s reading does not get the Secretary of State over the central hurdle, which is whether one can discern whether or not the tribunal’s consideration of descriptor 11 was coloured by the requirement of R(IB) 2/07(T) that the sufferer had to be not capable of any deliberate act.  I consider that it should not have been, for reasons below, and it may be that it was not.  But I cannot tell that it was not and the claimant is unable to tell why she lost.  The reasons were accordingly in error of law. 

10. I set out below the wording of the relevant descriptors regarding consciousness.

For incapacity benefit it was set out in paragraph 14 of the schedule to the Social Security (Incapacity for Work) (General) Regulations 1995/311 (as amended) as follows:

There then followed a series of descriptors awarding 15, 15, 12, 8 and 0 points to such episodes, identically phrased, which occurred less frequently, and then a further descriptor for “Has no problems with consciousness” which unsurprisingly attracted 0 points.

11. For employment and support allowance the relevant descriptors are set out in paragraph 11 of schedule 2 to the Employment and Support Allowance Regulations 2008/794 as follows:

In the case of employment and support allowance, the list of descriptors is shorter, with descriptors awarding 9 and 6 points for episodes, again identically phrased to the episode in the 15 points descriptor, before “None of the above apply” attracts 0 points.

12. The key differences are (a) the removal of the wording “without having epileptic or similar seizures” and (b) the addition of the words “resulting in significantly disrupted awareness or concentration”.  It is the latter of these that is at the heart of this case.

13. In R(IB)2/07, the Tribunal of Commissioners indicated at paragraph1 of their decision:

“We hold that a person has an episode of “altered consciousness” when he or she is no longer properly aware of his surroundings or his condition, so as to be incapable of any deliberate act.”

14. In my respectful opinion, insofar as it creates a test of the degree of severity of an episode of altered consciousness, R(IB)2/07 is to be understood as a decision on the previous legislative regime of incapacity benefit and confined to that context.  The introduction, for employment and support allowance purposes, of a yardstick of whether an episode “result[s] in significantly disrupted awareness or concentration” provides a statutory measure of the severity of impact which renders inapplicable for ESA purposes the yardstick for incapacity benefit purposes created by R(IB)2/07 that a claimant be “incapable of any deliberate act”.

15.  While on a strict reading of the employment and support allowance descriptor there is some potential for circularity if disrupted awareness or concentration are seen as evidence for the existence of altered consciousness as well as then providing a yardstick by which to judge whether the episode is sufficiently severe to qualify, I do not see that as a problem in what is, in essence, a composite test.  What is important is that the matter should be considered, and be seen to be considered, on the basis of the statutory wording in the Employment and Support Allowance Regulations, untrammelled as regards the extent of the effects of the episode by the decision reached on the incapacity benefit legislation in R(IB)2/07.

16. I direct therefore that the question of whether the claimant satisfies the work capability assessment to be looked at by way of a complete re-hearing in accordance with the legislation and this decision.

17. Unless otherwise directed, the claimant or her representative must ensure that any further written evidence is filed with the First-tier Tribunal no less than 21 days before the hearing date.

18. The tribunal will need to make full findings of fact on all points that are put at issue by the appeal.  Without limitation, in view of the terms of the descriptor, close attention must be paid to the effects of the claimant’s condition on her awareness and/or concentration.

19. The tribunal must not take account of circumstances that were not obtaining at the time of the decision under appeal, which was taken on 15 April 2009 - see section 12(8)(b) of the Social Security Act 1998 - but may have regard to subsequent evidence or subsequent events for the purpose of drawing inferences as to the circumstances obtaining at that time: R (DLA) 2/01 and 3/01.

20. These directions are subject to any further directions which may be given by a District Tribunal Judge.

21. While it is not a matter for me to direct, it is strongly suggested that the claimant should attend the re-hearing.

22. The decision on the re-hearing is a matter for the First-tier Tribunal and no inference as to the outcome should be drawn from the fact that this appeal has been allowed on a point of law.

C.G.Ward

Judge of the Upper Tribunal

14 April 2011