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This decision has been reproduced in plain text only. If you wish to submit a copy of a decision as part of an appeal, please download a Word copy from the link below.



The Office of Social Security and Child Support Commissioners

Tribunal Case No:

1. This claimant’s appeal succeeds. I hold the decision of the appeal tribunal dated 11 October 1995 to be erroneous in point of law and accordingly I set it aside. I remit the case to the tribunal for determination afresh in accordance with the directions which follow.
2. The adjudication officer’s decision carried to the tribunal was one reviewing the claimant’s award of incapacity benefit and revising it to the effect of ceasing it from and including 8 June 1995. The basis of that decision was that the claimant no longer satisfied the qualification for the benefit being no longer incapable of work in accordance with the then applicable test, known as the "all work test" set out in, and in accordance with the prescribed conditions in, the Social Security (Incapacity for Work) (General) Regulations 1995. In light of the information before him the adjudication officer determined that the claimant’s score was nil. The system of the test requires an individual, where, as here, only physical disability is in question, to score 15 points in terms of the activities and descriptives set out in the schedule to the Regulations. The appeal tribunal came to the same conclusion, and made the same score, as the adjudication officer.
3. At the hearing before me the claimant as ably represented by Mr C McCrae, a welfare benefits officer with Scottish Borders Council. The adjudication officer was represented by Mr W Neilson, of the Office of the Solicitor in Scotland to the Department of Social Security. I am grateful for the careful submissions made to me.
4. Mr McCrae carefully laid out the scheme of his argument to the effect that the tribunal decision erred in law. He had three main heads in that argument. The first concerned the adequacy of the findings of fact and the reasons. This largely centred upon a contention that relevant evidence had not been considered. I was not entirely persuaded that the submissions in support of that contention were well founded but because I am satisfied on other grounds I need not deal with it in detail. Equally, I was not entirely persuaded by the third head of Mr McCrae’s argument, namely that in the circumstances the tribunal should have sought the opinion of a doctor under what was then regulation 27(b) of the General Regulations. For the same reason I do not think it helpful to the new tribunal to go into that matter either, save to observe that should any material come before them which persuades them that they ought to seek the assistance of a further medical assessment then they will have to bear in mind the current provisions of the regulation.
5. The central issue which concerned me, and indeed was the reason behind my direction of hearing was a matter only raised before the tribunal for the first time. That concerned activity 14 in the schedule - "remaining conscious other than for normal periods of sleep". The claimant’s case, indeed I suspect really his only case before the tribunal, centred on descriptor "a" or "b". That is that he claimed to have:-
".... an involuntary episode of lost or altered consciousness at least once a day ...."
".... [or] at least once a week ...."
Either would have resulted in an award of 15 points and so restored his award of benefit. The disabling condition behind that contention was a series of headaches. Whether that was connected to the cervical spondylosis upon which the case had hitherto depended is not clear to me and it may be necessary for the claimant, with the assistance of his representative, to enlarge the medical backing to the case before the new tribunal. The tribunal found as fact on this matter thus:-
"The appellant puts in issue the problems arising in his condition relating to severe headaches which occur fairly frequently, most days of the month with for example in August, only a few days being free from these events. During the episodes the appellant has to lie down. The episodes of headaches last from half an hour to 2 hours. The appellant is disabled during these episodes and is unable to conduct his normal daily activities nor would he be able to work. However, he does not lose consciousness. He is still aware during these episodes of ambient noise. It is understood also that he does not lose vision, he does not have any feeling of nausea".
In explaining why they did not find these episodes to amount to occasions of "altered consciousness" in order to qualify in terms of the Regulations, the tribunal said this:-
"The tribunal is, therefore, in the necessity of applying those rules [in the schedule] to the appellant’s circumstances and the crux of the matter is whether the conditions described by the appellant on his severe headaches amount to "altered consciousness". It is accepted that there is no question of lost consciousness. The tribunal take the view that altered consciousness has to effect the perception of the individual to such an extent that he becomes less conscious of his surroundings, for example in such a situation in which someone has suffered from post-traumatic shock, petit mal epilepsy or possibly hypoglycaemic episode of a diabetic who had failed to take appropriate medication. These conditions, it is understood, would result to somewhat less than actually losing consciousness but in being "absent" in the instance of petit mal or otherwise having their ordinary perception and awareness of their every day surroundings altered to such an extent that they were not conscious of the surroundings to such an extent as they would be in consciousness. In this respect the appellant’s condition, while undoubtedly disabling, does not in the tribunal’s judgment amount to altered consciousness. The appellant appears to be conscious throughout and in particular is concerned over ambient noise, for example he commented in evidence that if there were problems of severe noise close to him eg pneumatic drills, he might have to move to get away from such noises which would aggravate the headache problems. It is also understood that the appellant’s vision would not be affected adversely. This would also be an element in relation to assessment of whether the resulted consciousness in the instance of this particular appellant".
6. The main thrust of Mr McCrae’s case, indeed the second head thereof, was that the tribunal had misinterpreted what was meant by "altered consciousness" in the schedule. The crux of his argument centred upon the degree of awareness of perception which an individual would normally have when conscious. If, he submitted, that awareness or perception became distorted or restricted by a degree of pain sufficient to that end then for the duration of that distorted or restricted awareness of perception the individual’s consciousness could properly be said to have become "altered". He pointed to what was said for the guidance of the examining medical practitioner in the medical report form IB85, at page 41 of documents, a sheet headed "Remaining conscious other than for normal periods of sleep". There then followed the various descriptors. But between the activity and the descriptors this guidance is contained:-
"These include seizures, black outs, faints and any disturbance of consciousness occurring while awake that prevents continuing activity".
Mr McCrae’s point, at its simplest, was that if an individual suffered a degree of pain which disturbed his consciousness in the way submitted and prevented continuing activity then that amounted to the requisite "involuntary episode".
7. Mr Neilson, in response, rebutted Mr McCrae’s first and third heads. Had it been necessary to decide I would probably have been persuaded thereby. However, on the central issue about "altered consciousness" he submitted that "altered" indicated something wider than "lost". He then sought to rely upon the ejusdem generis rule as indicating that the scope of "altered" fell to be construed in accordance with the scope of "lost". Thus, he contended, an enhanced degree of consciousness could not count as "altered" consciousness. I was not persuaded that the rule applied and I am satisfied that the two concepts are different and fall to be construed in the normal way as being two alternative conditions set out within a statutory provision. The "or" I regard as simply disjunctive. In the alternative Mr Neilson submitted that to have an alteration there would require to be some loss of perception but not necessarily as at the onset of a coma. That the claimant could still see and hear meant that there was no loss. If he became somewhat unaware in that his degree of consciousness was altered by pain it might be that he could not have proper perception and so could qualify. On that branch, I rather understood the contention to be that since the tribunal had considered the matter and come to the view which they did they could not be said to have erred in law, although it might have been that another tribunal, or this one on the basis of different evidence, could have reached another result.
8. The more that the matter was pursued the less I was persuaded that this tribunal’s reasoning was sufficiently clear so that the claimant, and perhaps more in particular this Commissioner, could see exactly why they had made their decision. The passage from the reasons quoted above seems to indicate that it would have been enough had the individual’s perception become sufficiently changed so that he was less conscious of his surroundings. (I should interject that there was some discussion as to whether "lost" meant whole or total and so "altered" meant something different from even a partial loss. However since the phrase is not "loss" but "lost" I am satisfied that it means a total loss and so "altered" falls to be construed in contra distinction thereto. But then the tribunal went on to posit a case of post-traumatic shock - which would be transient and so not likely to occur more than once a day or once a week. They then refer to petit mal epilepsy and hypoglycaemic episodes. It is then said that those conditions "it is understood" would result in something less than actual loss of consciousness but in some sense of being "absent". That may well have been as a result of the advice of their medical assessor but without that guidance being quoted I have some difficulty in following the reasoning nor am I satisfied that "absence", as they refer to it is necessary for there to have been a state of "altered" consciousness. There then follows what seems to me a slightly circuitous passage where they refer to an individual:-
".... having their ordinary perception and awareness of their every day surroundings altered to such an extent that they were not conscious of the surroundings to such an extent as they would be in normal circumstances".
That seems to be their central reason for rejecting the claimant’s contention that his headache condition qualified. But their finding of fact was that during the period in question the claimant was disabled and:-
".... unable to conduct his normal daily activities nor would he be able to work".
That seemed to be an alteration of perception and awareness to such an extent that the claimant was not as conscious of his surroundings as he would have been in normal consciousness. At all events I am persuaded that the explanation is insufficiently clear and Mr Neilson fairly readily accepted that once the passages had been explored in argument. It is for that reason, primarily, that I hold the tribunal decision to be in error of law and so the matter will have to be reconsidered afresh.
9. The discussion satisfied me that it is not possible to lay down guidelines as to what, in law, is meant by "altered consciousness". It is, I am equally satisfied, essentially a practical matter for a tribunal to determine in the light of medical guidance from their assessor and by the application of commonsense. But where, as here, episodes of pain are the disabling condition it will be necessary for the tribunal to explore, and for a claimant to present appropriate evidence to allow such exploration, in some detail how the pain affects the individual during an episode. It is not, in my view, sufficient to find as a fact that during the period "the appellant is disabled". Nor that he "is unable to conduct his normal daily activities". It is for determination first how the pain forecloses these and the way in which and the extent to which it does so. Thus, as Mr McCrae figured in submission, if an individual is so distracted by the pain that he requires to lie down and otherwise retire from what he is doing then it may be possible to conclude that his consciousness has become altered by the degree of pain and he is incapable of doing anything effective other than coping with it. But that would be a secondary finding which would require proper primary findings to justify it. Above all, I am persuaded that the concept of "altered consciousness", which may have some medical significance, is impossible of legal definition and is a concept of difficulty for application by lay tribunals. For these reasons I do not think that it is appropriate that I should give any further guidance to the new tribunal in this case.
10. For the reasons given the appeal is allowed and the case remitted accordingly.
W.M. Walker QC
13 August 1997