I am unsure whether this is a sufficiently adverse ruling that it merits an appeal to the Court of Appeal, or would be granted leave.
Help/opinions are keenly sought.

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Very recently a Commissioner made a new ruling (CIB/4342/2003), on my client's appeal, that migraines cannot be taken into account for physical activities such as bending & kneeling and rising from sitting (etc). Basically because he took the view migraine attacks do not impair the physical mechanisms used to peform those functions (e.g. back/leg strength).

I had argued, straight from Sweet & Maxwells Social Security Legislation 2003 Volume 1 (Bonner et al),pgs 774-5, that in CIB 5757/1997 Deputy Commissioner White had said, when considering the right aproach to migraines:

"it is now accepted in the context of the all work test that a person cannot do things which are unaccompanied by an unacceptable level of pain or discomfort, which is to be determined by the tribunal in the light of all the circumstances of each case (para 25)"

The Commissioner's ruling seems to go directly against this whole approach.

I had argued that my client fits the 'sometimes' physical descriptors as he regularly feels too much discomfort during migraines attacks' peaks.

How adverse or problematic could the Commissioner's ruling be for other claimants & appellants? Might it make it more difficult for any 'migraineurs' hoping to score points for the 'sometimes' descriptors due to discomfort? Could it have a wider application, weakening the "unacceptable level of pain or discomfort" approach?

I wonder, but don't know, if his decision goes against any reported decisions etc re the unacceptable levels of pain or discomfort approach? If so, could the Commissioner have made an error of law?

I am trying to make my mind up if it would be appropriate to contest this via the Court of Appeal? Opinions, esp. from those with experience of such, would help me a great deal. (My client does stand to gain benefit arrears if he won.)