Dear Folks,

Please can anyone add light to this one. I have a client with IDDM. She has frequent hypoglycaemic attacks, and stated on the IB50 that she has hypo at least once a month. She nearly passes out and her concentration is certainly impaired.

Would this amount to altered consciousness in the lost or altered consciousness descriptor? Do we have caselaw on it?

Many thanks.

Jabbar.

Thu 10-Mar-05 09:58 AM by ken

Commissioner Jacobs decision in CIB/884/2003 may be useful.

In CIB/884/2003, Commissioner Jacobs considers the 1996 amendment to the definition of the activity of 'remaining conscious' at paragraph 14 of the Schedule to the 1995 IFW Regs.

As originally enacted, it was defined as:

"Remaining Conscious other than for normal periods of sleep."

However Regulation 2(11)(a)(iii) of the 1996 Regs changed this to the more restrictive:

"Remaining conscious without having epileptic or similar seizures during waking moments."

As was the case with the 1996 amendment to Regulation 27(b) in Howker(R(IB)3/03), Departmental officials had described the effect of the amendment to the SSAC as 'neutral', and so the Committee agreed not to have it referred to them for consideration.

However, as the Court of Appeal had in Howker, Commissioner Jacobs concludes that the amended definition is clearly narrower than the original version, which covered any loss of consciousness when awake, and so finds:

"…that the amendment to the definition in paragraph 14 of the Schedule to the 1995 Regulations was made without proper compliance with the statutory machinery of referral to the Social Security Advisory Committee. It was, as a result, of no force or effect. The claimant’s capacity for work has to be determined under the terms of paragraph 14 as originally enacted."