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Neutral Citation Number:
Reported Number:	R(IB)3/04
File Number:	CIB 884 2003
Appellant:
Respondent:
Judge/Commissioner:	Judge E. Jacobs
Date Of Decision:	23/01/2004
Date Added:	16/02/2004
Main Category:	Incapacity benefits
Main Subcategory:	activity 14: consciousness
Secondary Category:
Secondary Subcategory:
Notes:	Personal capability assessment - activity 14: "remaining conscious" - whether amendment to definition of activity validly made The claimant appealed against a decision of the Secretary of State to award 7 points under the personal capability assessment for walking and negotiating stairs. The tribunal confirmed the 7 points and found that the claimant had had an involuntary episode of lost consciousness at least twice in the previous 6 months for which the score was 12 points, which was sufficient for the claimant to satisfy the test. The Secretary of State appealed to the Commissioner, on the ground that the tribunal had misdirected itself in law on the activity of remaining conscious. The Social Security (Incapacity for Work) (General) Regulations 1995 ("the 1995 Regulations") had been amended with effect from 6 January 1997 by the Social Security (Incapacity for Work and Miscellaneous Amendments) Regulations 1996. The definition of the relevant activity in paragraph 14 had changed from "remaining conscious other than for normal periods of sleep" to "remaining conscious without having epileptic or similar seizures during waking moments". In Howker v. Secretary of State for Work and Pensions (reported as R(IB) 3/03) the Court had decided that the amendment to regulation 27(b) of the 1995 Regulations was invalidly made because the Social Security Advisory Committee had been misled as to its potential effect. All the proposed amendments had been described to the Committee as "neutral" in their potential effect, whereas in fact the amendment to regulation 27(b) was "adverse" to claimants. Held, dismissing the appeal that: 1. while the actual decision in Howker was limited to regulation 27(b) the reasoning on which the decision was based could be applied to other amendments (paragraph 6); 2. the effect of the amendment to paragraph 14 was adverse to claimants in its potential effect and the Social Security Advisory Committee had been misled (paragraph 9); 3. it followed that the amendment was of no force or effect and the claimant's incapacity for work had to be determined under the terms of paragraph 14 as originally enacted (paragraph 12); 4. the other amendments to the 1995 Regulations were not at issue in this case and it was for tribunals to decide whether they were in fact "neutral" in their potential effect (paragraph 13); 5. the tribunal had correctly applied the law to the evidence and its decision was correct (paragraph 17).
Decision(s) to Download:	R(IB) 3_04 bv.doc