Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.CE/578/2013

ADMINISTRATIVE APPEALS CHAMBER

Before Judge Mark

Decision:  I give permission to the claimant to appeal and I allow the appeal.  I set aside the decision of the tribunal and remit the matter to be reheard by a new tribunal in accordance with the directions below.

The claimant should bear in mind that tribunals have very limited time to read the papers.  His written submissions on this appeal are virtually illegible in places and are not easy to read at any point because of the quality of the typeface.  It would help in the presentation of his case if these could be reprinted or represented in a more legible form.

REASONS FOR DECISION

1.      The claimant suffers from Parkinson’s disease which affects his right side.  At the date of the decision in October 2011, he was taking medication for this 3 times a day and once at night.  As found by the tribunal, the daytime medication effectively eliminated his symptoms for periods of between 30 and 90 minutes on each occasion about an hour after taking his medication and the claimant would have some benefit from the medication both when it was taking effect and when it was wearing off.  The tribunal also accepted that the claimant would have “some functional difficulties” when the effect of the medication had worn off.  It concluded that for the majority of time he could perform the various descriptors and therefore scored no points from them.  This decision is said to have been come to using the expertise of the medical member.  I also note that the medical member is a surgeon and I am unclear as to the extent of his expertise in the effects of the medication used to treat Parkinson’s disease.

2.     There is no finding that the claimant could perform any of the descriptors on which he relied, other than climbing steps in his home, when the medication had worn off entirely.  Nor is there any finding as to when, after taking it, the medication would begin to have effect, nor when its effect would be such as to enable him to perform any particular descriptor and to what extent – one would expect this to vary between descriptors.  Nor is there any finding how long the medication would take to wear off entirely or at what points when wearing off the claimant would become unable to perform any descriptor at all or to some extent.

3.     The tribunal’s reasoning is therefore wholly inadequate to explain how it could conclude, as it appears to have done, that for the majority of time the claimant could perform the descriptors so as to score no points from them.  If, for example, the average time for which the medication was wholly effective was an hour and there was half an hour on either side of that when the effects were starting to be felt and wearing off, that would only have given a maximum of 6 hours a day when the medication had any effect, and for part of that time it may not have been so effective as to leave him wholly able to perform the descriptors.  I do not see how 6 hours a day can sensibly be regarded as the majority of the day.  That is only an example and the actual time involved could be rather more or rather less. 

4.     In addition, I note from p.104 of the file that optimum time for taking the medication appears to be said to be 30 minutes after eating.  If this regime were followed, there would only be two relatively short periods during a normal working day when the claimant would have respite from his disease, and these periods would be separated by a period when he was incapacitated, although to what extent has not been the subject of any findings by the tribunal.  Also the timing of his medication had to take into account, at least on his case, his need to self care and make meals for himself, which would necessitate having some capacity at times when he was not working.

5.     The decision is inadequately reasoned and is therefore in error of law. I set it aside and remit the matter to be reheard by a new tribunal, which will need to consider all the relevant descriptors and determine which descriptors applied, looked at overall and taking into account the claimant’s limitations and the extent to which and time for which his problems were ameliorated by his medication, both when fully effective and when they were in the process of starting to be felt and wearing off.  Insofar as there are fluctuations in the lengths of time when the medication was effective, the tribunal should make findings, if the evidence points in that direction, as to whether any particular length of time was more or less common.

6.     The claimant also contended that the side effects of his medication were such as to leave him drowsy.  I note that sudden drowsiness is referred to at p.68, feeling excessively sleepy is referred to at pp.102 and 133, where this is said to occur 2-3 times a week.  Excessive daytime somnolence is referred to at p.103, just days after the date of the decision, and there is a reference to him struggling to stay awake at p.83.   There are other similar references to which the claimant has referred in his typed submissions.  The statement of reasons for the decision states simply that the claimant referred to his tiredness and drowsiness in relation to the consciousness descriptor but the tribunal was satisfied on the evidence that he did not have any involuntary episodes of lost or altered consciousness.

7.     Descriptor 10, as then in force, is headed “Consciousness during waking moments.”  Descriptor 10(a) is “At least once a week, has an involuntary episode of lost or altered consciousness resulting in significantly disrupted awareness or concentration.”  An earlier version of this descriptor in similar terms was considered by Judge Jacobs in AB v SSWP, [2012] UKUT 151 (AAC) in the context of a claimant who suffered from sleep apnoea which in turn left him short of sleep and tired during the day.  He dealt with this as follows:

6.     Mr B does not satisfy the limited capability for work assessment. The effects of sleep apnoea do not come within activity 11.

7.     The issue is whether Mr B experiences involuntary episodes of lost or altered consciousness during waking moments by reason of his sleep apnoea. The sleep apnoea only takes effect during sleep. By definition, it does not have any effect when he is awake. So, Mr B’s sleep apnoea does not directly affect his capability for work. What it does is to interrupt his sleep, leaving him unrefreshed and liable to fall asleep the next day. What affects him is the natural tiredness that he experiences during the day.

8.     I do not consider that natural tiredness, even as a result of a medical condition, is appropriately described as involuntary in this context. It is something that we all experience and can control. We have to force ourselves to stay awake and alert when driving, even if we may feel drowsy. We have to force ourselves to stay awake and concentrate during a long meeting in a stuffy room. Once a person is aware of the risk, they are capable of remaining alert.

9.     Also, I do not consider that natural tiredness disrupts awareness or concentration in this context. A person who is asleep is not aware and cannot concentrate. But the activity assumes that the episode disrupts awareness or concentration. That is not a natural way to describe the effect of sleep.

10.  Finally, I do not consider that natural tiredness fits well under the heading of ‘remaining conscious during waking moments’. That seems to me to assume that someone is affected while otherwise awake. Activity 11 would only apply if it covers falling sleep while awake. That seems a contradiction under this activity.

8.     The present case is rather different.  The drowsiness is the direct side effect of the medication taken to counter the effects of the Parkinson’s disease.  For the purposes of regulation 19(5)(c) of the Employment and Support Allowance Regulations 2008, it clearly arises as a direct result of treatment provided by a registered medical practitioner for that disease.  It is not natural tiredness but tiredness induced by the medication. 

9.     With regard to Judge Jacobs’ observations in paragraph 8 of his decision that natural tiredness is something we all experience and can control and that it cannot be described as involuntary in the context of this descriptor, I would agree that this is the case in general.  It would not, however, be true of somebody suffering from narcolepsy, nor would it be true of somebody who has been administered a sedative designed to cause them to fall asleep, or which has that consequence.  There will be occasions when the tiredness or drowsiness is so extreme that voluntary control is lost.  Whether there are occasions when the claimant’s medication results in such occasions, and if so, how frequently this occurs, is a matter for the tribunal to determine.

10. With regard to paragraph 9 and 10 of Judge Jacobs’ decision, the descriptor clearly refers both to lost and altered consciousness.  Sleep is a form of lost consciousness just as much as a state induced by an epileptic fit.  A person is not awake if they have lost consciousness and the reference to ‘remaining conscious during waking moments’ or, as here, ‘consciousness during waking moments’ is plainly concerned with involuntary loss of consciousness of any type.  I can see no difference between losing consciousness due to narcolepsy and losing consciousness due to any other cause.

11. In my judgment, drug induced drowsiness can, if severe enough, amount to or result in an involuntary episode of lost or altered consciousness resulting in significantly disrupted awareness or concentration.  It is for the tribunal to investigate the cause, nature and extent of the problem and to determine whether there are occasions when the side effects of the claimant’s medication have that effect on him, and if so, how frequently they occur.  The tribunal in the present case do not make adequate findings of fact in this respect and on this account also the decision is in error of law.

12. It is unnecessary for me to consider the claimant’s other grounds of appeal, beyond noting that the tribunal should have satisfied itself that the claimant was competent despite his disabilities to present his own case and give his evidence, and was obliged at the end of the hearing to allow the claimant a reasonable opportunity to sum up or make any further point he may reasonably have wished to make.  I also make no findings as to the allegation of bias against the medical member beyond observing that while claimants should expect to be questioned and cannot expect that their claims will necessarily be taken at face value, the medical member is exercising a judicial role and should exercise appropriate restraint in the manner of putting questions.

(signed) Michael Mark

Judge of the Upper Tribunal

2 October 2013