Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CPIP/2287/2015

ADMINISTRATIVE APPEALS CHAMBER

 

Before M R Hemingway: Judge of the Upper Tribunal

 

Decision:  The decision of the First-tier Tribunal sitting at Basildon on 27 April 2015 under reference SC133/14/00156 involved an error of law and is set aside.

 

The appeal is remitted for determination at an oral hearing before a completely differently constituted tribunal.

 

This decision is made under Section 12 of the Tribunals, Courts and Enforcement Act 2007.

 

 

DIRECTIONS

 

Subject to any later directions by a District Tribunal Judge of the First-tier Tribunal the

Upper Tribunal directs as follows:

 

(1) The tribunal must undertake a complete reconsideration of the issues that are raised by the appeal and, subject to the tribunal’s discretion under Section 12(8)(a) of the Social Security Act 1998, any other issues that merit consideration.

 

(2) In particular, the tribunal must investigate and decide the claimant’s entitlement to a personal independence payment on her claim that was made on 9 July 2013 and refused on 12 December 2013.

 

(3) In doing so, the tribunal must not take account of circumstances that were not obtaining at that time: see Section 12(8)(b) of the Social Security Act 1998. Later evidence is admissible, provided that it relates to the time of the decision: R(DLA) 2 & 3/01.

 

 

REASONS FOR DECISION

 

The decision in summary

 

1. This is the Secretary of State’s appeal to the Upper Tribunal against the decision of the First-tier Tribunal (F-tT) dated 27 April 2015. My decision is that the F-tT’s decision involved an error of law. I allow the appeal to the Upper Tribunal and set aside the F-tT’s decision. The appeal against the Secretary of State’s decision dated 12 December 2013 will have to be reheard by a new tribunal.

 

The background

 

2. The claimant was born on 26 January 1969. It is not disputed that she suffers from epilepsy. Indeed, she has indicated that she has intractable nocturnal Grand Mal seizures which require her to rest and sleep for long periods afterwards.  There is also an indication that she experiences back pain which, as I understand it, she thinks is probably caused as a result of her involuntary movements whilst experiencing a seizure.  Further, there is evidence that, in 2012, a Consultant Neuro-Psychiatrist took the view that whilst there was, at that time, no evidence of “any psychiatric diagnosis such as depression or an adjustment disorder” the epilepsy was having an adverse impact upon her such that she would benefit from a course of counselling or cognitive behavioural therapy.

 

3. What is abundantly clear, though, is that by far the most significant problem is the epilepsy and the consequent frequent nocturnal seizures resulting from it. It is also worthy of note, that in 2010, she had a day time seizure, at a time when she was driving a motor car and which resulted in her driving into a tree though the evidence does not suggest there has been a further daytime seizure since then.

 

4. The claimant claimed a Personal Independence Payment on 9 July 2013. Thereafter, and in pursuance of her claim, she completed a standard form known as PIP2 which she signed on 29 August 2013.  In completing that form she indicated that she suffered from epilepsy but did not mention any other health problems.  She specified the medication which she was taking but said that it was not assisting in controlling the seizures. She ticked boxes to indicate that she could manage most of the daily living tasks asked about in the form but, as to preparing food, she said that she would only put a ready meal in the oven and would never “cook a meal from scratch”. In general terms she said she could do “normal things” unless experiencing lower back pain. She added that she was “really tired after a seizure”. Indeed, when responding to a question about washing and bathing she said that whilst she does not actually need help to physically perform these functions she would not actually perform them until she had “got over” a seizure. She gave a similar indication with respect to dressing and undressing.  As to what would happen when she experienced a seizure she said that she would suffer injuries and bruises, that she would bite her tongue and that she would find herself suffering pain in her lower back upon waking. She said that she would feel so tired after a seizure that she would sometimes sleep until 12 noon. She did add that she can perform “normal activity” once she has recovered from the aftermath of a seizure.

 

5. The claimant attended a face-to-face consultation with a healthcare professional on 30 October 2013.  A report of that date was produced. The healthcare professional listed the identified medical conditions as being “epilepsy, low back pain, heavy menstrual bleeding”.  It was recorded that she said she would see her neurologist twice a year, that whilst different medication had been tried none of it had resulted in adequate control of the seizures, that as at the time of the face-to-face consultation she was having a seizure every night, that she had previously had daytime seizures but not since 2010,  that she would often get up around 11 am to 12 noon after a seizure unless she had an appointment and that, if she did have and attend such an appointment she would have to sleep in the afternoon.  In the opinion of the healthcare professional, though, she did not require an aid or appliance, prompting, supervision or assistance with respect to fulfilling any of the tasks contained within the descriptors relating to the daily living component and the mobility component of personal independence payment.

 

6. On 12 December 2013, seemingly in reliance upon the healthcare professional’s report, a decision was taken to the effect that the claimant was not entitled to a personal independence payment.  She sought a mandatory reconsideration and provided, in support of that, further medical evidence.  However, on 27 February 2014, it was decided not to alter or amend the original decision in any way.  She decided to appeal to the F-tT and, in her grounds of appeal, said that she thought the decision was wrong because when she had a seizure she would feel dizzy, sick, emotionally weak, tired and would have injuries as a consequence of the seizure.  She added it would take her “hours to recover”.

 

The documentary evidence which was before the First-tier Tribunal

 

7. It is, in my view, worth commenting upon the documentation which the F-tT had. It had the usual written submission prepared by the Secretary of State explaining his reasoning. It had the PIP2 form and the report of the healthcare professional referred to above.  It also had some further medical evidence which the claimant had supplied. I shall not refer specifically to each and every item but, picking some out, there was a letter of 21 June 2012 written by Dr Matthew Castle, a Consultant Neuro-Psychiatrist, which indicated his view that she did not suffer from any psychiatric illness but that she had some psychological and social problems as a consequence of her epilepsy.  There was a letter of 21 February 2014 written by Dr Steven Russell, a GP at her surgery, which said of her that;

 

“She is severely debilitated on the days following these all too frequent nocturnal seizures”.

 

and added that it was inaccurate to say she did not have functional restrictions. There was a letter of 6 August 2014 again written by Dr Russell, stating that around July 2014, she had been having “fits every night”.  There was a letter from Dr Bradbury a Consultant Neurologist, of 28 August 2014, addressed to the claimant’s Member of Parliament, in which it was said, amongst other things, that she had “a wildly abnormal EEG” and that she continued to suffer from “drug resistant epilepsy”.

 

8. I also note that there were a number of letters written by the claimant herself in which she set out her above concerns regarding the night time seizures and the impact these would have upon her during the day.

 

The appeal to the First-tier Tribunal

 

9. The appeal first came before the F-tT on 26 November 2014 but the hearing was adjourned because, unfortunately, the claimant had not received a copy of the appeal bundle.  The appeal next came before the F-tT on 17 February 2015 but, unfortunately, there was a difficulty in that although the claimant had arrived in time this was not, for some reason, notified to the F-tT until 2.50pm, the appeal having been scheduled to commence at 2pm.  This meant there was not sufficient time to hear it.  However, the appeal did proceed on 27 April 2015.  The claimant attended and gave oral evidence. According to the F-tT’s record of proceedings she told it that she has to “sleep it off” after a seizure, that all she wants to do after such a seizure is to sleep, that the seizures were ruining her life, that she has fits “more often than not” and that she is not herself when she has had a fit.  Pausing there, I am not convinced that the Upper Tribunal has the full record of proceedings because the document I have does appear to end rather abruptly. However, that has not prevented me from making an informed decision on this appeal.

 

10. The F-tT decided to allow the claimant’s appeal to the extent that she qualified for the standard rate of the daily living component. This was on the basis that she met the requirements of descriptor 1(f) in that she “cannot prepare and cook food”. Specifically, in its decision notice, the F-tT said;

 

“By reason of epilepsy, [the claimant] is significantly limited, in particular in safely preparing fresh food. As a result [the claimant] qualifies for the above award for Personal Independence Payment. In reaching its decision the Tribunal placed particular reliance upon the evidence of [the claimant].”

 

11. The F-tT, thereafter, and at the request of the Secretary of State, produced its statement of reasons for decision (statement of reasons). In explaining how it had came to allow the appeal it said this;

 

“2. The award the Tribunal made was under Activity 1f “cannot prepare and cook a main meal for one”. The approach to be taken to preparing and cooking is laid out in PIP Regs, Schedule 1 Part 1. Preparing is deemed to be making food ready for cooking whether it is opening a package or peeling and chopping, checking that the food is in date plus serving the meal. Cooking is deemed to mean heating food safely at or above waist height. According to PIP Regulations 4(2A) such a task has to be carried out safely, to an acceptable standard, reasonably and in a reasonable time period and 4(4) tells us what three of those terms means: “safely – unlikely to cause harm; “repeatedly” means as often as is necessary to complete the task; and “reasonable time period” is limited to twice as long. Interestingly “acceptable standard” which is probably the most variable is not subject to a standardised definition.

 

3. Having closely (but appropriately) questioned the appellant the Tribunal accepted that the frequency of fits during the qualifying period up to the date of claim was such that she was dependent on others for a cooked meal. Whether fully attributable to the fits, or enhanced by an adverse (but genuine) emotional reaction the appellant has become dependent on others for cooked food for most of the time; and, further, was unable to prepare and cook food in accord with a traditional pattern of breakfast, lunch and evening meals or any semblance of it as her personal time clock has lost any link with daily activity. The Tribunal’s view was that most of the time the appellant did not prepare a meal at all because of her overall state, should she prepare meals in her post-fit state there had to be a doubt as to whether it would be done safely, to a reasonable standard, or in a reasonable time frame either due to post-epileptic fugue or agitation or a combination of the two.

 

4. Further, and in the alternative, the Tribunal was not satisfied that on the wording of Reg 4(4) the Moran principle [remote but dire risk] had been abolished and on that basis it also concluded that the appellant would be at genuine risk if she tried to prepare and cook a meal.”

 

12. Hence, the appeal succeeded.

 

The proceedings before the Upper Tribunal

 

13. The Secretary of State applied for permission to appeal to the Upper Tribunal. In the grounds it was accepted that the claimant would experience epileptic seizures “most nights” and that “there is some impact on the claimant the following day”. However, it was said that descriptor 1(f) should only apply to claimant’s who do not have the functional ability to prepare and cook food and that it should not apply to people who do not make meals through choice, lack of knowledge or because someone else does it for them.  It was pointed out that the evidence indicated there had not been a day time seizure since 2010.  As to the “Moran” point it was said that the F-tT should have explained what danger would arise whilst she was “using a microwave”, why it though she was otherwise unable to prepare and cook a simple meal and why it thought she was at risk of day time seizures.  It was said that the evidence suggested the claimant had the physical capacity to cook food and that, in effect, she was choosing not to do so.

 

14. A District Tribunal Judge, in fact the same District Tribunal Judge who had allowed the appeal, granted permission to appeal to the Upper Tribunal.

 

15. The claimant provided a written response to the grant of permission. In so doing she explained, once again, how the seizures would impact upon her and she also supplied some further evidence including a letter of 25 September 2015 from Dr Bradbury, a letter from the Epilepsy Society giving some general information about the condition and some photographs.

 

16. The respondent provided some further written observations in which it was said that, unlike the test for disability living allowance, the personal independence payment scheme makes no allowance for the requirement of supervision due to risk unless it was directly linked to the actual undertaking of an activity relevant to one of the descriptors.

 

Discussion

 

17. I considered whether or not to hold an oral hearing before the Upper Tribunal. However, neither party had sought such a hearing. Further, the parties’ respective positions have been set out, in some detail, in the documentation before me. It did not seem to me that an oral hearing before the Upper Tribunal would, therefore, advance matters and having considered the contents of Rule 2 and 34 of the Tribunal Procedure (Upper Tribunal) Rules 2008 and giving weight to the absence of any request for such a hearing I decided not to hold one.

 

18. This is an appeal with what is, perhaps, a slightly unusual factual background. The claimant’s evidence to the F-tT was to the effect that she would suffer a nocturnal seizure on more than 50% of nights and that, when she had experienced such seizures, she would be unable to properly function and go about her business for a certain period of time during the following day, as a result of what the F-tT described as “post-epileptic fugue”. Such a background raises the possibility of certain of the descriptors being satisfied for a part though not the whole of the majority of days.

 

19. It might be useful, at this stage, to set out something of the legislative framework concerning personal independence payments. Such payments were introduced by the Welfare Reform Act 2012.  There are two components being the daily living component and the mobility component (see Section 77(2)). Section 78 provides for the daily living component and Section 79 provides for the mobility component.  Both are available at either the standard or the enhanced rate.  A person’s ability to carry out activities in order for that person to qualify must be limited by the person’s physical or mental condition. Thus, as Miss Pepper who has prepared the grounds and submissions to the Upper Tribunal on behalf of the Secretary of State points out, a person cannot score points or attain entitlement on the basis of, for example, a choice not to carry out a particular task or function.

 

20. The activities and descriptors concerning the daily living component appear in Part 2 of the Schedule to the Social Security (Personal Independence Payment) Regulations 2013 and those relevant to the mobility component appear at Part 3. As to the particular activity which the F-tT considered to be relevant (and there was only one), Part 2 provides:

 

 

Activity	Descriptors	Points
1. Preparing food.	a) can prepare and cook a simple meal unaided. b) needs to use an aid or appliance to be able to prepare or cook a simple meal. c) cannot cook a simple meal using a conventional cooker but is able to do so using a microwave. d) needs prompting to be able to either prepare or cook a simple meal. e) needs supervision or assistance to prepare or cook a simple meal. f) cannot prepare or cook food.	0   2       2       2     4     8

 

 

21. Paragraph 1 of  Part 1 of the Schedule provides relevant definitions:

 

1. In this Schedule –

…

“cook” means heat food at or above waist height;

“prepare” in the context of food, means make food ready for cooking or eating;

“simple meal” means a cooked one – course meal for one using fresh ingredients.

 

 

22. Regulation 4 is also relevant:

 

4.  Assessment of ability to carry out activities

(1) ………

 

(2A) Where C’s ability to carry out an activity is assessed, C is to be assessed as

satisfying a descriptor only if C can do so –

(a) safely;

 (b) to an acceptable standard;

(c) repeatedly;

 (d) within a reasonable time period

 

(3)….

 

(4) In this regulation –

 

(a) “safely” means in a manner unlikely to cause harm to C or to another person, either

during or after completion of the activity;

(b) “repeatedly” means as often as the activity being assessed is reasonably required to be

 completed;

(c) “reasonable time period” means no more than twice as long as the maximum period

 that a person without a physical or mental condition which limits that persons ability to

carry out the activity in question would normally take to complete that activity.

 

23. Finally, Regulation 7 is of relevance for its laying down of a general rule that points in relation to a descriptor will only be scored if a claimant is unable to perform the relevant task or function for 50% or more of the days of the assessment period.

 

24. I return, now, to the F-tT’s decision as explained in its decision notice and, principally, in its statement of reasons.  I accept insofar as it is relevant, that it is appropriate to read the two together. Whilst I do not agree with each and every point made on behalf of the Secretary of State in this appeal to the Upper Tribunal, and whilst I can certainly see what the F-tT was driving at in the paragraphs from its statement of reasons I have quoted above, I have concluded that it did err in law by failing, against the above statutory framework, to make sufficient findings of fact and by failing to sufficiently explain its reasoning.

 

25. First of all, there was evidence before the F-tT, as referred to at a number of points above, to the effect that the nocturnal fits, around the time of the decision, were occurring for more, perhaps significantly more, than 50% of nights. However, the F-tT did not actually make a finding as to the frequency of night time seizures. Perhaps, in view of the subsequent acceptance on behalf of the Secretary of State that the seizures were for more than 50% of the time that does not seem to matter, but I do think that technically, it was necessary for the F-tT to make a clear finding about this because it was a key aspect of the appeal and there was no concession before it.

 

26. Secondly, the F-tT did not, in my judgment, make a sufficiently clear finding as to what the difficulty was which, in its view, prevented the claimant from being able to prepare and cook food. In this context, it did not actually seem to decide whether the inability to do so was a result of post-epileptic fugue or whether it was to do with what it described as “agitation” or an “emotional reaction”. It seems to me that the F-tT ought to have reached a view whether it was one or the other, or if it could not do that, have explained why not. Further, it did not explain what evidential basis there might have been for concluding that any emotional reaction or agitation was capable of preventing the relevant activity being undertaken.  It also seems to me that the F-tT was required to say more by way of explanation as to why it thought that the relevant activity could not be performed to a reasonable standard, in a reasonable time frame or safely. Further, the F-tT found there “was a doubt” about whether the claimant could prepare and cook food safely, to a reasonable standard and in a reasonable time frame but in my view it was required to go further and to decide whether, on the basis of the evidence, she was able to do so or not.

 

27. As to safety, though, Miss Pepper’s contentions, if I understand them correctly, appear to carry with them the implication that if the claimant was able to safely open packaging and then warm, in an oven or in a microwave, an opened ready meal that would be sufficient. If that was the implication I do not agree with it. This is because given the definition of “simple meal” and in particular the reference to fresh ingredients, preparing will involve tasks such as peeling and cutting vegetables with knives, or the like and is not limited merely to a task such as the opening of packages.

 

28. As to the F-tT’s alternative conclusion at paragraph 4, and the reference to “remote but dire risk” what it was stating was that, in its view, the claimant would be at risk when cooking food because of the possibility of a day time seizure occurring without warning.  Certainly, one can readily see that if an event of that sort happened when handling chopping knives or hot pans, the consequences could be most serious.  With respect to disability living allowance, a benefit which is being phased out and replaced by personal independence payments, a person can establish entitlement to the care component of it on the basis of being so severely disabled mentally or physically that he or she would require, from another person, continual supervision throughout the day in order to avoid substantial danger to himself/herself or another. Such a person could establish entitlement to the care component, if, to avoid such danger, he or she would require, at night, another person to be awake for a prolonged period or at frequent intervals for the purposes of watching over.  Such a person could establish entitlement to the lower rate of the mobility component of disability living allowance if he or she could show that he/she was so severely disabled mentally or physically that he/she could not take advantage of the facility of walking out of doors without guidance or supervision from another. The relevant conditions of entitlement appear at sections 72 and 73 of the Social Security Contributions and Benefits Act 1992. In these areas, it is sometimes necessary to conduct a balancing exercise weighing the degree of risk in the sense of the likely harm which might be caused by, for example, a seizure, as against the likelihood of it happening.  So, for example, a person might depending on the precise facts, establish entitlement if able to show that an event, such as a seizure was unlikely to happen but that if it did the harm caused would probably be great. These sorts of issues had been considered in Moran v Secretary of State for Social Services (The Times, March 14,1987, CA), hence the F-tT’s reference to it in the words quoted above.  So, the F-tT took the view that such an approach and such a balancing exercise was necessary in order for it to consider whether the claimant in this case was able to prepare and cook food safely.

 

29. It seems to me that the F-tT’s approach would certainly make a great deal of sense if the word “safely” had not been defined.  That is because it seems logical to suppose the word, unclarified by a definition, would require a consideration not only of the likelihood of a risk occurring but also of the potential harm which might be caused.  If an event was unlikely to occur whilst a task was being performed but, if it did, might result in only relatively trivial injury at worst, then it might be thought that task could safely be undertaken but not so if the nature of the harm caused would be substantial. However, the word is defined as noted above and in the way set out above.  That definition focuses upon the likelihood of harm being caused as opposed to the gravity of any harm if it is caused. Thus, on the face of it, a narrow definition has been adopted which would not regard something as being unsafe even if the consequences might be very serious or even fatal. This begs the question as to whether that can be taken to have been the intention of Parliament.

 

30. I have looked at the explanatory note to the second draft of the assessment regulations for personal independence payments which was published in November 2011. At paragraph 7.5 there appear these words:

 

Risk and Safety

7.5  When considering whether an activity can be undertaken safely it is important

to consider the risk of a serious adverse incident occurring. However, the risk that

a serious adverse event may occur due to impairments is insufficient-there has to be

evidence that if the activity was undertaken, the adverse event is likely to occur.

 

  31.  Then, in the Government’s response to the consultation on the Personal Independence Payment assessment criteria and regulations, published on 13 December 2012 there appear these words:

 

Risk and safety

4.13  As explained above, we believe that, in order for a descriptor to be deemed to

apply to an individual, that individual must be able to complete the activity as

 described safely.  We propose that, to determine whether an individual is capable of

carrying out an activity safely, consideration should be given to whether they are at

risk of a serious adverse event occurring. If it is decided there is a high risk of such an

 event occurring, the individual would not be considered able to complete the activity

 safely at the level described and should be assessed against other descriptors

 reflecting higher levels of need.

 

  Comments and government response

 4.14  Various respondents suggested that our definition of “safety” was too strict, they

 questioned the reference in the second draft of the criteria that there has to be

“evidence” that if the activity was undertaken, the adverse event is likely to occur. We

 did not intend that individuals should have to provide evidence but simply that it must

 be likely that the adverse event would happen. However, the use of “evidence” has

 clearly concerned people so we have removed it. The definition of safely has now

 been changed to: “when considering whether an activity can be undertaken safely it is

 important to consider the risk of a serious adverse event occurring. However, the risk

that a serious adverse event may occur due to impairments is not sufficient-the

adverse event must be likely to occur if the activity was undertaken”. We believe that

this strikes the right balance.  

 

   

32.  Finally, in terms of the content of such materials, it is worth noting that the above definition has found its way into the PIP Assessment Guide which is intended for those healthcare professionals who carry out face to face medical consultations with persons claiming a personal independence payment.

 

33. None of the above is binding.  It is, though, relevant to the ascertainment of the legislative intention.  It seems to me abundantly clear that the intention is to relate the concept of safety to the likelihood of an event occurring. Hence, the intention is that a claimant will not succeed in the event of there being a dire risk which is not likely to occur.  That legislative intention is clearly reflected in the actual definition. The focus of decision makers and tribunals, therefore, must be on the likelihood of an event occurring not the degree of harm likely to be caused if it does.  That means the F-tT erred in embarking upon a consideration encompassing remoteness of risk and the potential seriousness of the harm which might be caused.  It was simply required to focus upon the likelihood or otherwise of an adverse event occurring.  I appreciate that this interpretation might be thought, from some perspectives, to be unfortunate but that cannot be a consideration for me.  Parliament’s intention is clear and that intention is achieved by the wording of the appropriate definition.

 

34. The above does mean that the F-tT’s decision has to be set aside. However, before I deal with the consequences of that I would like to consider a further error made by the F-tT.  In this context, it is important to note that it did not appear to consider whether the claimant, the morning after a night in which she had experienced a nocturnal seizure, would be able to perform functions relevant to the daily living and mobility activities and descriptors repeatedly. As set out above, a person is only to be regarded as capable of performing a task or function if able to do so repeatedly.  The definition, by way of reminder, is to the effect that the word means “as often as the activity being assessed is reasonably required to be completed”. The claimant’s evidence is, of course, that she is unable to do very much at all due to the adverse impact upon her of a seizure and the tiredness she feels as a result of it until late morning or midday.  It seems to me it makes no sense to say a person is able to perform an activity as often as reasonably required if they cannot do so for a part of the day in which they would otherwise reasonably wish or need to do so.  

 

35. In the Government response referred to above and which was published on 13 December 2012, these words are to be found:

 

4.15 From the earliest design of the assessment we have worked to ensure that it

takes account of health conditions and disabilities that have fluctuating symptoms

or impacts. Our proposal was that a descriptor will apply if the impact of a health

condition or impairment is experienced on the “majority of days” over a 12 month

period. If a descriptor applies at any point during a 24 Hr period, it should be

considered as applying on that day.

 

36. The underlining is mine.  Again, though, the legislative intention is clear.  I would accept, as I did in TR v SSWP (PIP) [2015] UKUT 626 (AAC) that any inability to perform a function for part of a day must be a direct consequence of a claimant’s physical or mental condition and must be of some significance. Thus, a momentary inability to perform a function would not lead to a conclusion that a descriptor will apply.  However, if the inability is such as to have some tangible impact upon a person’s activity and functioning during a day then it might well do.  By way of illustration, a person who, having awoken in the morning has to wait for a lengthy period for his or her painkilling medication to take effect before going about his daily business which might include such as washing, dressing and toileting, may well score points in relation to certain of the daily living activities and descriptors.  Similarly, a person suffering a significant adverse reaction to a seizure, as this claimant says she frequently does, might also score points on that basis in relation to a range of descriptors.

 

37. What the F-tT should have done, therefore, was make clear findings as to the frequency, nature and duration of any incapacity or impairment caused to the claimant by the after effects of the seizures. Having done that, and if its findings justified it, it should have explored whether she could be said to be able to perform the tasks and functions contained within both the daily living and the mobility descriptors in accordance with the regulation 4 2(A) considerations including the “repeatedly” requirement as defined.  If it identified relevant tasks and functions she could not so perform it should have awarded the appropriate number of points under the descriptors it found to be applicable. Perhaps I should just add for completeness that the Government response of 13 December 2012 does make it clear, at paragraph 4.12 that it was always the intention that pain, fatigue, breathlessness, nausea and motivation would be regarded as key factors in a consideration as to whether or not a descriptor is satisfied.  Three of those might be thought to be potentially relevant given the particular concerns the claimant has raised. 

 

38. In light of all the above, therefore, I do set the F-tT’s decision aside.  

 

What happens next?

 

39. I do have the power, having set the F-tT’s decision aside, to go on to re-make the decision on the claimant’s appeal myself. However, I have decided not to do so. That is because, my having set the F-tT’s decision aside, there are further facts to be found.  It seems to me that those findings ought to be made by a new and differently constituted F-tT, as an expert fact finding body, with the assistance of its specialist members. Further, benefit might be had from further oral evidence and a reconvened hearing before a new F-tT will provide an appropriate forum for such evidence to be given to a panel with a range of specialist expertise.

 

40. The F-tT will have to start afresh and will have to make its own findings of fact on the basis of the evidence before it including any further oral or written evidence it may receive. It will be important for it to enquire into and make factual findings about the frequency of the night time seizures and whether the claimant is debilitated, as she says, to the extent she says, the following day, as a result of those seizures. It will have to consider, amongst other things, whether that debilitation occurs each day after a nocturnal seizure and, if it does, how long it lasts into the following day and whether the impact does serve to prevent the appellant being able to prepare and cook food taking into account the regulation 4(2A) factors and, indeed, whether it prevents her fulfilling other functions relevant to any other descriptors concerned with the daily living and mobility activities.

 

41. The F-tT, it seems to me, therefore, will have much work to do in ascertaining and deciding the facts and then seeing how they apply with respect to each potentially applicable activity and descriptor. I do not seek to suggest, in any way, what the outcome of the rehearing should be.

 

Conclusion

 

42. The Secretary of State’s appeal to the Upper Tribunal is, therefore, allowed on the basis and to the extent explained above.

 

(Signed on the original)

M R Hemingway

Judge of the Upper Tribunal

Dated 20 November 2015