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Neutral Citation Number:	2011 UKUT 158 AAC
Reported Number:
File Number:	CE 497 2010
Appellant:	BB
Respondent:	Secretary of State for Work and Pensions
Judge/Commissioner:	Judge C G Ward
Date Of Decision:	14/04/2011
Date Added:	20/05/2011
Main Category:	Employment and support allowance
Main Subcategory:	Pre 28.3.11. WCA activity 11: remaining conscious
Secondary Category:
Secondary Subcategory:
Notes:	Reported as [2012] AACR 2. Employment and support allowance – work capability assessment – remaining conscious – whether incapacity benefit case law relevant The claimant had basilar migraine and was in receipt of employment and support allowance. She experienced episodes of dizziness, with sensations of blurred or altered vision associated with sensations of spinning. Following a medical examination, the Secretary of State decided, on supersession, to disallow her claim, awarding zero points in respect of the descriptors. The First-tier Tribunal upheld that decision and the claimant appealed to the Upper Tribunal. The question was whether the episodes experienced by the claimant were sufficient to meet the test in paragraph 11 of Schedule 2 to the Employment and Support Allowance Regulations 2008, as an episode of “altered consciousness, resulting in significantly disrupted awareness or concentration”. In its statement of reasons, the First-tier Tribunal cited R(IB) 2/07, where it was stated that a person had an episode of “altered consciousness” as defined in the relevant descriptor for incapacity benefit when he or she was no longer properly aware of his surroundings or his condition, so as to be incapable of any deliberate act. The tribunal noted the view of commentators that that approach might be no longer applicable to the different wording of the descriptor for employment and support allowance, but did not then go on to say, in terms, either that they did, or that they did not, apply the previous case law and if they did, to what extent. Held, allowing the appeal, that: 1. the tribunal had erred in law as it was not possible to discern from its reasons whether or not its consideration of descriptor 11 was coloured by the requirement of R(IB) 2/07 that the sufferer had to be not capable of any deliberate act and the claimant was unable to tell why she lost (paragraph 9); 2. the introduction, for employment and support allowance purposes, of a yardstick of whether an episode “result[s] in significantly disrupted awareness or concentration” provides a statutory measure of the severity of impact which renders inapplicable for employment and support allowance purposes the yardstick for incapacity benefit purposes created by R(IB) 2/07 that a claimant be “incapable of any deliberate act” (paragraph 14); 3. the test of altered consciousness should be considered, and be seen to be considered, on the basis of the statutory wording in the Employment and Support Allowance Regulations, untrammelled as regards the extent of the effects of the episode by the decision reached on the incapacity benefit legislation in R(IB) 2/07. The judge remitted the case for rehearing before a differently constituted tribunal.
Decision(s) to Download:	[2012] AACR 2bv.doc [2012] AACR 2ws.doc