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1. My decision is as follows. It is given under section 14(8)(b) of the Social Security Act 1998.
The decision of the Doncaster appeal tribunal under reference U/01/003/2002/00924, held on 22 August 2002, is erroneous in point of law.
I set it aside and remit the case to a differently constituted appeal tribunal.
I direct that appeal tribunal to conduct a complete rehearing 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. In particular:
The appeal tribunal must determine the claimant’s capacity for work on and from 4 April 2002.
In dealing with activity 14 of the personal capability assessment, on the evidence in the papers the tribunal must decide that the claimant does not experience a state of altered consciousness during a migraine.
In dealing with other activities, the migraines produce a variable effect over time on the claimant’s capacity for work. In assessing the significance of the variation, the appeal tribunal must apply the approach laid down by the Tribunal of Commissioners in R(IB) 2/99.
If the claimant does not satisfy the personal capability assessment, the tribunal must investigate and consider whether the original version of regulation 27 of the Social Security (Incapacity for Work) (General) Regulations 1995 applies to the claimant’s advantage. It must apply that regulation in accordance with the decision of Mr Justice Collins in R v Secretary of State for Social Security, ex parte Moule (1996).

The appeal to the Commissioner
2. This is an appeal to a Commissioner against the decision of the appeal tribunal brought by the claimant with the leave of Mr Commissioner Levenson. The Secretary of State does not support the appeal. Mr Levenson has transferred the case to me for decision.
The history of the case
3. The claimant was accepted as incapable of work from 1992. The cause of her incapacity has throughout been migraines. In early 2002, her capacity for work was assessed by self-assessment questionnaire followed by a medical examination and report. A decision-maker for the Secretary of State decided that the claimant was no longer incapable of work. The claimant appealed against that decision, but the tribunal dismissed her appeal. On granting leave to appeal to a Commissioner, Mr Levenson proposed a decision that the claimant had remained incapable of work. The claimant agreed to that proposal, but the Secretary of State did not. Mr Levenson gave directions on further issues, but again the Secretary of State did not support the appeal.
The issues
4. This appeal raises two issues. First, the scope of activity 14 in the personal capability assessment. Second, whether the claimant satisfies regulation 27 of the Social Security (Incapacity for Work) (General) Regulations 1995.
Activity 14
The law
5. This is defined in the Schedule to the Social Security (Incapacity for Work) (General) Regulations 1995 as:
‘Remaining conscious without having epileptic or similar seizures during waking moments’
Points are scored if the claimant
‘has an involuntary episode of lost or altered consciousness’.
The evidence
6. The claimant described to the tribunal how she felt during attacks:
‘she stated that during attacks she does not become unconscious, she is aware of her surroundings and is conscious that she does not want to eat and may want a drink or to go to the lavatory.’
On the basis of that evidence, the tribunal decided that the claimant had no problems with lost or altered consciousness.
The issue
7. The claimant does not have epileptic seizures and she does not lose consciousness. So, the issue is: are the claimant’s migraines similar to epileptic seizures and involve involuntary episodes of altered consciousness?
The Secretary of State’s submission
8. The Secretary of State’s representative has obtained medical advice on the nature of epileptic seizures and migraines. This advice came from Dr Nick Niven-Jenkins of the Office of the Chief Medical Adviser. I set his advice out interspersed with my comments.
9. ‘For a person to be considered under this activity they must be suffering from epileptic or similar seizures and not just any episode of loss or altered consciousness for example simple faints or dizziness.’
This is correct.
10. ‘The meaning of epileptic or similar seizure is defined as a seizure that results from an excessive or abnormal discharge of cerebral neurones and an epileptic fit is one example.’
This is not a legal definition. There is no relevant definition in the legislation. I assume the doctor is quoting a medical definition.
11. ‘The term “similar seizure” in the heading to activity 14 means a seizure of similar cause, i.e. also due to an abnormal discharge of cerebral neurones.’
This is not the only possible interpretation. Mr Levenson suggested another. I comment on the competing interpretations below.
12. ‘Thus:
• The abnormal activity of cerebral neurones is the cause of the epileptic fit while;
• The lost or altered consciousness is the effect of the fit.
‘Epilepsy is a recurrent, paroxysmal disorder of cerebral function characteristed by sudden, brief attacks of altered consciousness, manifest by dysfunctional motor function, sensory phenomena, or inappropriate behaviour caused by an excessive discharge of an aggregate of cerebral neurones.
‘Whereas migraine is a complex multifactorial condition of unknown cause [aetiology]. It is thought that changes in brain and scalp arterial blood flow and brain electrical activity [neurovascular changes] may induce inflammation, which leads to irritation of nerve fibres in the head, face and neck causing pain.
‘A cascade of events follows, that bring about changes in blood flow and the severe often one sided headache. The headache may be preceded by or accompanied by visual, sensory, motor or mood disturbance – but not a disturbance of consciousness. The neurovascular [physiological] changes described above do not result in a discharge of cerebral neurones.’
I accept these paragraphs as medically correct.
13. ‘In order to qualify under activity 14 any impairment [loss of alteration] of consciousness is only a seizure if it results from an abnormal discharge of cerebral neurones.
‘Common migraine [and any associated symptoms] does not arise from an abnormal discharge of cerebral neurones and therefore should not be considered under activity 14.’
This assumes that the medical cause is the relevant cause for the purpose of the legislation.
14. So, if I take the approach set out in that advice, the claimant scores no points for activity 14 for two reasons. First, she does not have seizures that are similar to epileptic seizures. Second, she does not have altered consciousness.
Mr Levenson’s suggestion
15. In his directions on other issues in the appeal, Mr Levenson suggested a different approach to the interpretation of activity 14
‘In relation to what kind of seizure is “similar” to an epileptic seizure, it is arguable that since the whole scheme is directed at determining capacity to work rather than diagnosis, what is relevant is whether the effect (rather than the cause) is similar to that of an epileptic seizure.’
The Secretary of State’s representative did not directly address this issue. Instead, she referred again to the medical advice and repeated that migraines could disturb mood, but not consciousness.
Similar seizures
16. I do not have to decide whether the medical adviser’s approach or Mr Levenson’s suggestion or some other possibility is the correct interpretation of ‘similar seizures’, because the claimant does not experience altered consciousness.
17. It may be that the interpretation of ‘similar seizures’ does not arise as an issue separate from whether a claimant experiences involuntary episodes of altered consciousness. It may be that consciousness can only be altered by a seizure that is due to an abnormal discharge of cerebral neurones. I simply do not know whether that is medically correct or not.
18. However, if the interpretation issue can arise separately, I see practical difficulties with the medical adviser’s approach and have sympathy with Mr Levenson’s suggestion.
19. Mr Levenson’s approach has two advantages. First, it emphasises the impact of a claimant’s symptoms on capacity for work rather than their medical causation. Second, his approach is the easier to apply for decision-makers and appeal tribunals. If the claimant has a firm diagnosis, medical science will probably be able to provide the evidence necessary to apply the medical adviser’s approach. But suppose the claimant’s condition has not yet been diagnosed. How in those circumstances is it possible for the practical purposes of a decision-maker or an appeal tribunal to prove what is causing the claimant’s symptoms?
Altered consciousness
20. The tribunal concluded that the claimant did not, on her account of her symptoms during a migraine, experience involuntary episodes of lost or altered consciousness. Did it go wrong in law in coming to that conclusion?
21. In CSIB/0014/1996, Mr Commissioner Walker wrote (paragraph 9):
‘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.’
22. Whether a claimant experiences episodes of altered consciousness is a matter of fact for the tribunal. The tribunal had to approach the issue in three stages. The first stage was to obtain from the claimant a statement of how she felt during a migraine. The tribunal did that. The second stage was to decide whether or not to accept the claimant’s account. The tribunal accepted the claimant’s account. There was no reason not to. The third stage was to decide whether the symptoms as described involved altered consciousness. At this stage, the tribunal was entitled to rely on the knowledge and experience of the medically qualified panel member. The tribunal did not record that, but it is reasonable to assume that it did so.
23. In deciding whether the tribunal went wrong in law in assessing the claimant’s evidence, I have taken account of two definitions from Webster's Medical Desk Dictionary (1986):
Consciousness -
(i) ‘the totality in psychology of sensations, perceptions, ideas, attitudes, and feelings of which an individual or a group is aware at any given time or within a given time span’;
(ii) ‘waking life (as that to which one returns after sleep, trance, or fever) in which one's normal mental powers are present’.
Altered state of consciousness -
‘any of various states of awareness (as dreaming sleep, a drug-induced hallucinogenic state, or a trance) that deviate from and are usually clearly demarcated from ordinary waking consciousness’.
I have also taken account of this reference in the Incapacity Benefit Handbook for Medical Services Doctors (page 137):
‘“Altered consciousness” implies that, although the person is not fully unconscious, there is a definite clouding of mental faculties resulting in loss of control of thoughts and actions.’
24. These definitions are not, of course, legal definitions and must not be used if they were. They do, though, give an indication of how the medical profession understands those expressions. Taking those into account, the tribunal’s conclusion was correct. It did not go wrong in law.
Regulation 27
25. This issue was raised by Mr Commissioner Levenson in his direction on other issues. The original version of the regulation was amended in January 1997. However, the Court of Appeal has now decided that the amendment was of no force or effect: Howker v Secretary of State for Work and Pensions and Social Security Advisory Committee [2002] EWCA Civ 1623. So, the original version of regulation 27 should have been applied to the claimant. Obviously, the tribunal was not aware that that would happen. Nonetheless, its decision will be wrong in law if it did not deal properly with the issues that arose under the original version of that regulation.
26. The tribunal should have considered the possible application of regulation 27(b) and (c). It did make some findings of fact that are relevant to those heads, but they were not made with the particular provisions in mind. Inevitably, the investigation may not have been adequate to reveal all the relevant evidence. In that respect, with the benefit of hindsight, the tribunal went wrong in law. A rehearing is necessary in order for this to be investigated.

Signed on original Edward Jacobs
10 July 2003

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