Social Security Case Law - Winter 2024

Headnote

The Upper Tribunal provides guidance for assessing whether a claimant who experiences seizures can carry out PIP activities ‘safely’.

Case Overview

In this Upper Tribunal case, the appellant appealed the decision of the first-tier Tribunal stating that it took too narrow an approach to the interpretation of RJ, GMcL and CS v SSWP [2017] AACR 32 – when it decided that the decision only applied to people who lost consciousness without warning as a result of seizures. The appeal was supported by the Secretary of State and remitted to the Frist-Tier Tribunal. However, Judge Church did consider the proper test for assessing the ability of a claimant who experiences seizures to carry out activities ‘safely’.

In paragraph 2, Judge Church notes:

In this decision I consider the proper test for assessing the ability of a claimant who experiences seizures to carry out activities “safely”, and in particular:

1. the significance of whether the claimant experiences prodromal/pre-ictal symptoms prior to a seizure;
2. to the extent that the tribunal finds that the claimant experiences prodromal/pre-ictal symptoms and relies upon these symptoms serving as a “warning sign” of an impending seizure, the fact finding that is required to support a finding that the occurrence of such “warning signs” permits the claimant to carry out the relevant activity “safely”;
3. where a claimant loses consciousness, the significance of the period of time for which consciousness is lost, and the fact finding that is required to support a finding that the brevity of such loss of consciousness permits the claimant to carry out the relevant activity “safely”.
4. the significance of whether the claimant experiences post-ictal symptoms.

At paragraph 41, Judge Church later notes that the proper test to assess ‘safety’ was set out in paragraph 56 of RJ:

To be able to assess whether there was “a real possibility that cannot be ignored of harm occurring” the Tribunal needed to make findings both as to the likelihood of harm occurring and the nature of the harm that might occur should the risk eventuate.