RCA W CIB/I714/2003 
DECISION OF THE SOCIAL SECURITY COMMIISSIONER 
1. My decision is that the decision of the Middlesbrough appeal tribunal (the tribunal) of 11 February 2003 is erroneous in point of law, and I set it aside. Exercising my power under s.14(8)(a)(ii) of the Social Security Act 1998, I consider it expedient to make fresh or further findings of fact, and to give the decision which I consider appropriate in the light of those fresh or further findings. My decision is that the claimant is entitled to incapacity credits from and including 7 November 2002 because she is to be treated as incapable of all work having scored fifteen points on a personal capability assessment. 
The context 
2. The claimant, who was born on 12 September 1966, has for many years suffered from fainting. She has been in receipt of incapacity credits sine I May 200 I. 
3. Following a personal capability assessment, the claimant was, on 20 August 2001, awarded fifteen points because she has an involuntary episode of lost or altered consciousness at least once a month. 
4. On 8 July 2002 the claimant returned a further incapacity for work questionnaire. She reported that she could not stand for more than ten minutes without having to move around, could not walk more than 200 metres without stopping or feeling severe discomfort, and had difficulty using stairs, because she became dizzy. She also referred to dizziness in some ofher comments in relation to activities in connection with which she had ticked the box saying that she had no problems. The claimant indicated that she had no problems with fits or something like fits. The claimant added the following in providing further information: 
I pass out mainly on a morning but it can happen any part of the day. I vomit and I have a pounding headache and have to stay in bed. I am never on my own and I never go out alone because I have passed out in the street. 
5. On 9 September 2002 the Department made enquiries of the claimant's GP about her state of health. On 20 September 2002, the GP reported that the claimant had suffered from syncope/pre-syncope episodes since 1994 and that she had last seen the claimant on 16 April 2002. The claimant was reported to be doing well with only one documented faint related to the period (unspecified) when last seen in April. Epilepsy has been excluded as a cause of the claimant's blackouts. 
6. On 25 October 2002 the claimant was seen by a doctor contracted to provide medical services to the Department. The doctor records a diagnosis of syncope, and the claimant's medication as Propranolol. The doctor also notes that there had been hospital investigations in March 2002 with a heart specialist and notes, 'Needs further investigation' . 
7. The doctor records that the claimant can perform all the functions listed in the personal capability assessment without problems, since he or she had detected no functional abnormality in the clinical examination and observations of the claimant. There is no specific comment in relation to the remaining conscious descriptor since the claimant had indicated that she had no problems with consciousness in completing the corresponding part of Form IB50. Even though no functional problems had been identified, the doctor 
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appends the following note to the advice that the claimant's functional problems would be expected to improve significantly within the subsequent six months: 
Main problem fainting. Under cardiologist. Need review and medical evidence. 
8. The decision maker on 7 November 2002 awarded a score of zero on the personal capability assessment. This meant that the claimant was to be treated as not being incapable of all work. As a consequence her entitlement to incapacity credits was ended. 
9. On 11.November 2002 the claimant appealed against this decision. She said she did not understand how she had received a score of zero given her problems with consciousness. She also queried why she had previously been awarded fifteen points on a personal capability assessment but was now awarded no points at all. 
10. An officer of the Department raised a query with the Medical Services division, part of which reads as follows, 
...it appears on the face of it that one doctor considers her fainting as a loss of consciousness and the other doesn't. The episodes accepted by the doctor on 29/08/01 are within 3 years of the examination on 25/10/02 but don't get a mention. 
11. On 28 November 2002 a Medical Services advice minute was issued in the following terms: 
Syncope is a simple faint. 
Activity 14 specifically excludes simple faints so EMP was correct to choose g. 
12. On 9 December 2002, a different decision maker looked at the decision again but did not change it. 
13. There is an undated letter from the claimant (at pages 123-6 of the bundle) in which she explains that she suffered from lost consciousness at any time of the day or night, that she misunderstood the incapacity for work questionnaire in completing it, that she felt really ill when she fainted. She queried the correctness of the second doctor's opinion and why the first doctor had not expressed the correct view. 
14. The claimant had the benefit of representation. A written submission was prepared in which it was argued that the claimant suffered from loss of consciousness which was a similar seizure to an epileptic seizure. A letter from the claimant's GP was also submitted in the following terms, 
I confirm [the claimant] has been attending South Cleveland Hospital under the supervision of..., Consultant Cardiologist. She has a diagnosis of pre-syncope and blackouts the cause of which has not been established. 
15. The appeal came before the tribunal on 11 February 2003. The claimant attended with her mother and her representative. The Secretary of State was not represented. There is a helpful record of proceedings, which shows that the tribunal took considerable care to explore a number of relevant issues with the claimant and her representative. 
16. The outcome of the appeal was that the tribunal awarded nine points on the personal capability assessment (three each for the rising from sitting, use of stairs, and bending and kneeling descriptors). Since this was less than fifteen points, the claimant was to be treated as not incapable of all work, and was not entitled to incapacity credits from 7 November 2002. A full statement of reasons was subsequently provided on 6 March 2003. 
17 .In brief, the tribunal concluded that the claimants faints did not constitute lost or altered consciousness involving epileptic or similar seizures, but accepted that her experience of 
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dizziness meant that she sometimes could not perfoffi1 the descriptors for which points had been awarded. But apart from the 'sometimes' descriptors, the claimant did not suffer from loss of function for most of the time and so scored no points for other activities. 
18. The claimant then sought leave to appeal to the Commissioner, which was granted by the tribunal chairman. The appeal is supported by the Secretary of State, but only on the grounds that the tribunal has not considered the application of Regulation 27(b). 
19. Under section 14( I) of the Social Security Act 1998, a Commissioner can only interfere with the decision of the tribunal if its decision was erroneous in point of law. There are five ways in which a tribunal's decision may be erroneous in point of law: see R(A)1/72 and R(SB)11/83. Firstly, it records a misinterpretation of the law. Secondly, the decision is unsupported by evidence. Thirdly, the facts as found are such that no person acting judicially and properly instructed as to the relevant law could have come to the deteffi1ination in question. Fourthly, there has been a breach of the rules of natural justice. Finally, there has been a failure to comply with the rules in the Decisions and Appeals Regulations to record findings of fact and reasons for the decision. This requires the record to show to a claimant what evidence has been accepted and rejected, and how the law applied to the findings of fact results in the decision they have made. But in Baron v. Secretary of State for Social Services, (reported as Appendix to R(M)6/86} the Court of Appeal recognised that there were limits to the extent that it is possible to give reasons on matters properly within the judgment of tribunals. 
The tribunal's error of law 
20. I have very considerable sympathy with the tribunal in this case. They have worked hard to seek to apply the Commissioners' decisions on the scope of Activity 14 to the claimant's circumstances without any real assistance from the Secretary of State on this issue. I have concluded that the tribunal erred in law in apparently concluding that 'syncopal attacks of unknown cause' (as they characterise the claimant's condition) cannot constitute seizures similar to epileptic seizures. For this reason, I set their decision aside. 
The advice to examining medical practitioners 
21. The former text of Column 1 of Activity 14 was 'Remaining conscious other than for normal periods of sleep' .The Incapacity Benefit Handbook for Medical Services Doctors described the scope of that activity as follows, 
1. This function covers any involuntary loss or alteration of consciousness which occurs during the hours when a client is normally awake, and which prevents the client from safely continuing with the activity. The descriptors relate to the frequency with which episodes of lost or altered consciousness occur. 
2. In the context of Incapacity Benefit, the most likely causes of lost consciousness are: 
.grand mal (classical} epilepsy 
.syncope ("blackouts"} due to transient impairment of cerebral circulation, eg as a result of cardiac dysrhythmias .vasovagal attacks 
.Hypoglycaemic coma in poorly controlled or unstable insulin-dependent diabetic. 3. Omitted-refers to altered consciousness 
4. .For both lost and altered consciousness, establishing an exact diagnosis is less important than establishing whether or not any disability is present. The need is to consider the person's ability to continue with an activity in safety. In this context, even a momentary disturbance of consciousness, as for instance in a petit mal attack, may be of significance
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22. The revised edition of the Incapacity Benefit Handbook/or Medical Services Doctors (2 February 2000) reads, 
1. This function covers an involuntary loss or alteration of consciousness which results from a person having epileptic or similar seizures during the hours when the client is normally awake and which prevents the client from safely continuing with any activity. Fits when the client is normally asleep should not be taken into consideration. The descriptors relate to the frequency with which such episodes of lost or altered consciousness occur . 
2. In the context of PCA, the most likely causes of such episodes are: .grand mal (classical) epilepsy 
.a seizure which is secondary to impairment of cerebral circulation (eg as a result of cardiac dysrhythmias); or hypoglycaemia .other seizures of epileptiform nature. 
3. Omitted-refers to altered consciousness 
4. For both lost and altered consciousness, establishing an exact diagnosis is less important than establishing whether or not any disability is present. 
23. Such guidance is not binding on tribunals or the Commissioners (nor indeed decision makers ), though it does provide a helpful insight into the way in which the medical profession views lost consciousness resulting from epileptic or similar seizures. The medical guidance refers to three classes of episodes and includes episodes which are caused by cardiac dysrhythmia and hypoglycaemia. 
24. In relation to syncope (the medical term for fainting), there now seems to be a distinction in medical advice between those faints which result from impairment of cerebral circulation and vasovagal attacks (though the medical dictionaries indicate that such attacks are caused by a temporary shortage of blood supply to the brain-but they also indicate that such attacks usually occur during strong emotion, personal distress or the witnessing of a shocking event). I note that vasovagal attacks were included in the medical guidance as a likely cause of episodes of lost or altered consciousness under the earlier version of the guidance, but have been excluded from the revised text. 
Commissioners' decisions t 25. In CIB/16122/1996the Commissioner said, ; 
It has been decided in CSIB/597/97 that the only disabilities which are relevant under the new paragraph 14 are those which are consequent upon an epileptic or similar seizure. 

The tribunal should follow that guidance but I direct that in doing so the tribunal should not interpret "similar seizures" as meaning only those seizures which result from epilepsy or other malfunctions of cerebral origin. "Seizure" is not an exclusively medical term and is defined in the Shorter Oxford English Dictionary and Collins English Dictionary as being the sudden onset or recurrence of disease with the epileptic fit as an example. Dorland's and Blackiston's Gould Medical Dictionaries both give the sudden onset or recurrence of disease as the primary meaning with the epileptic episode as the secondary meaning. In both ordinary and medical language, therefore, a seizure is not necessarily related to epilepsy or to anything similar to epilepsy. Also the All Work Test [now Personal Capability Assessment] assesses incapacity for work by reference to specified disabilities in the performance of specified activities, not by reference to the diagnosed cause of the 
disabilities. That being so, it seems to me that the similarity to which paragraph 14 of column (1) of the Schedule refers is the similarity of any particular seizure to an epileptic seizure in its effect, not the similarity, if any, in its cause. (para. 6) 
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26. In C30/98 (IB) a Commissioner in Northern Ireland said, 
12. What is meant by lost or altered consciousness has not changed but it is now only involuntary episodes of lost or altered consciousness coming from epileptic or similar seizures during waking moments that can be considered for the award of points under the relevant activity . 
14. Collins English Dictionary defines a seizure as, "a sudden onset of disease". However in the context of "epileptic or similar seizures" and in view of the fact that whether or not a person suffers from epileptic seizures is essentially a matter for medical diagnosis, I consider that the term "similar seizure" must be given the meaning of seizures which resemble epileptic seizures. Under the activity as previously framed "Remaining conscious other than for normal periods of sleep", a person who suffered any attack of lost or altered consciousness could have qualified. The evident intention was to narrow down the attacks which could qualify. This has been done by confining consideration to attacks coming from epileptic seizures and further only to attacks coming from similar seizures. It is not just any sudden attack of disease which can count under this descriptor but only sudden attacks resembling epileptic seizures. What are the characteristics of an epileptic seizure? 
(a} Its origin-it is the result of excessive neuronal discharge 
(b} Its manifestation-an episode of motor, sensory or psychic dysfunction etc. (c} The concomitants-marked changes in recorded electrical brain activity. 
It seems to me that an adjudicating authority in deciding whether a seizure is similar to an epileptic seizure must bear in mind all three, but particularly the first two of these characteristics and make the determination of whether or not the claimant suffers "during waking moments" from epileptic or similar seizures. The seizures to qualify, do not have to be epileptic seizures but they do have to be:- 
(a} seizures and 
(b} similar in general characteristic to epileptic seizures. 
27. The Commissioner goes on to indicate that it will be for the claimant to show on the balance of probabilities that he or she suffers from epileptic or similar seizures. 
28. CSIB/196/2003 concerned blackouts caused by 'cough syncope', that is, a loss of consciousness following a severe bout of coughing. The Commissioner refers to CIB/16122/1996 and to C30/98 (IB) and goes on to say, 
25. Both Commissioners ...agree that the relevant activity under paragraph 14 of column (1} of the schedule has been narrowed by its amendment with effect from 6 January 1997. The only disabilities which are now relevant under the new paragraph 14 are those which 
are consequent upon an epileptic or similar seizure. 
26. However, whereas Commissioner Angus [in CI8/16122/1996] is quite specific that the necessary similarity is that of the claimant's particular seizure to an epileptic seizure and not in its cause, Commissioner Brown [in C30/98 (18)] apparently required that the 
claimant's seizure resemble an epileptic one il:! having excessive neuronal discharge as its cause and must result in an episode of motor, sensory or psychic dysfunction. 
27. Unlike the Secretary of State's representative, I prefer the reasoning of Mr Commissioner Angus to that of Mrs Commissioner Brown. The argument of each is cogent and has attractions. However, I consider the salient factor is that identified by Mr Commissioner Angus, which is that the rationale of the incapacity for work test is to assess that issue. ... 
28. The tribunal did not err in applying C30/98 (18}, as CIB/16122/96 was not suggested to it by the Secretary of State. Tribunals follow decisions of Commissioners in Northern 
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Ireland as a matter of comity if there is no contrary decision of a Commissioner sitting in Great Britain. However, I direct the new tribunal to follow the approach of CIB/16122/96 and consider whether the claimant has seizures and, if yes, are these similar to epileptic ones in their effect. 
29. If he is not incontinent, does not jerk, tremble or bite his tongue. then it is unlikely that the effect of cough syncope is similar in its effect to that of an epileptic seizure so that. even if causation is irrelevant, he may still fail even on the application of CIB/16122/96 rather than of C30/98 {IB). The effects must be similar to those of an epileptic seizure in characteristics other than simply that of lost or altered consciousness. otherwise the qualifying phrase, "without having epileptic or similar seizures during waking moments'.. would be otiose. What are the general characteristics of the effect of an epileptic seizure, to which the claimant's seizure must be similar, will be an issue of fact for the new tribunal. 
My view on the proper interpretation of "epileptic or similar seizures" 
29. My preference is for the approach advocated by Commissioner Angus in CID/16122/1996 for the following reasons; and in formulating these reasons I have been heavily influenced by arguments adduced in the very recent decision in CID/4598/2002. 
30. It seems to me right to focus on the effects of the loss of consciousness. The all work test and its successor personal capability assessment are directed at detennining capacity to work rather than diagnosis. This means that what is relevant is whether the effect rather than the cause is similar to that of an epileptic seizure. 
31. This approach has the advantage that it is a test which can be applied by decision makers exercising judgment in the light of all the circumstances (including the medical evidence) rather than solely by reference to medical diagnosis. I do not see how claimants who do not have a diagnosis of epilepsy could pro,'e on the balance of probabilities the matters referred to in paragraph 14 of C30/98 (ID). But they could show that the effects of their seizures were similar to those of an epileptic attack. 
32. I part company with Commissioner Parker on the required characteristics of a seizure similar to an epileptic seizure. The Commissioner in CSID/196/2003, at paragraph 29 of her decision, seems to require persons suffering a seizure similar to an epileptic seizure to show all or some of the characteristics of incontinence, jerking, trembling or biting the tongue. The claimant's representative has provided information showing that epileptic seizures can take very many forms indeed, and need not include those characteristics referred to by the Commissioner. I do not consider that it is necessary for a seizure which is similar to an epileptic seizure to be accompanied by incontinence, jerking or trembling, or the biting of the tongue. 
33. This does not, however, mean that all losses of consciousness must be seizures similar to epileptic seizures. Here I would look for guidance to the medical profession. The guidance which I have reproduced at paragraph 22 of this decision seems to me to be of considerable assistance. A tribunal faced with the need to determine whether there has been a loss of consciousness resulting from a seizure similar to an epileptic seizure would expect to see some medical evidence which would indicate a medical condition falling within the group of conditions set out there. I would expect in most cases where an issue arises under Activity 14 that there would be (as in this appeal) no shortage of medical evidence for consideration. I also note that the guidance indicates that 'establishing an exact diagnosis is less important than establishing whether or not any disability is present. , 
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The application of my conclusions to this appeal 
34. I have decided that it is appropriate for me to substitute my own decision for that of the tribunal in this case, since I cannot conceive that there will be more or better evidence available to a new tribunal than is available to me. 
35. I accept that the claimant suffers from blackouts which are being investigated by a Consultant Cardiologist and whose precise cause has not yet been established. They are treated with Propranolol (which is a beta blocker used in the treatment of abnormal heart rhythms.) I accept the claimant's account of the effects other blackouts (see page 125 of the bundle), 
When I pass out I feel really ill. When I come round my head pounds. My head feels all jumbled up I am very sick vomiting I feel really cold and shaky then I feel sweaty. 
36. The blackouts are in my view seizures since they are of sudden onset and recurrence. I am also satisfied that the claimant suffers seizures similar to epileptic seizures for the reasons set out above. The seizures are accompanied by vomiting and a pounding headache and the claimant has to retire to bed. 
37. The medical report of 20 August 2001 refers to the claimant's reporting seizures more than twice a month, and the medical report of25 October 2002 refers to the claimant's having experienced fainting in the previous month with the fainting before that being one month earlier. On the evidence as a whole the claimant has shown that she experiences these seizures at least once a month. This scores fifteen points on a personal capability assessment and so the claimant is to be treated as incapable of all work. Her entitlement to incapacity credits from 7 November 2002 accordingly continues. 
38. Since I have concluded that the claimant is to be treated as incapable of all work on a personal capability assessment, I do not need to go on to consider the application of Regulation 27(b) to her circumstances. 
39. It follows that the claimant's appeal succeeds. The decision I have substituted for that of the tribunal is set out in the first paragraph of this decision. 

Robin C A White Deputy Commissioner 
20 August 2003 [Signed on the original on the date shown] 
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