AM v Secretary of State for Work and Pensions

For the purposes of regulation 4(2A) of the Social Security (Personal Independence Payment) Regulations 2013, the ability to perform an activity safely requires consideration of whether there is a real possibility of harm that cannot be ignored, having regard to both the likelihood of harm and the nature and gravity of its possible consequences.

In seizure cases, warning symptoms, loss of consciousness, episode duration and post-ictal effects may all be relevant. A tribunal must make specific findings about those matters and explain how they affect the risk. It cannot assume that a brief episode is insignificant, or that the existence of warning symptoms makes an activity safe without considering what the claimant could do in response.

The claimant had received Personal Independence Payment since 2014. Following a reported deterioration involving collapse and seizures, the Secretary of State awarded the enhanced daily living component but no mobility component.

The First-tier Tribunal dismissed the claimant’s appeal. It found that her non-epileptic episodes were brief, involved some warning, and did not involve loss of consciousness without warning. It also relied on the fact that she continued to drive.

The claimant appealed to the Upper Tribunal, arguing that the tribunal had misunderstood the safety test in RJ, GMcL and CS v SSWP [2017] AACR 32 and had failed to make adequate findings on warning symptoms, loss of consciousness, episode duration and the evidence about driving.

1. The appeal was allowed. The First-tier Tribunal had made a material error of law. Its decision was set aside and the appeal was remitted to a differently constituted First-tier Tribunal for rehearing.

2. The binding approach in RJ, GMcL and CS v SSWP [2017] AACR 32 is of general application. It is not confined to claimants who experience seizures or loss of consciousness without warning. The question under regulation 4(2A) is whether there is a real possibility of harm that cannot be ignored, having regard to the likelihood of harm and the nature and gravity of the feared harm.

3. The tribunal must assess likelihood in absolute terms. A relative finding that one type of seizure is less likely to occur without warning than another does not answer the statutory question.

4. Warning symptoms may reduce risk, but only if the tribunal makes proper findings about what they are, how long before the episode they occur, and what the claimant could reasonably be expected to do to reduce the risk of harm. The tribunal must also explain why a short period of loss of consciousness is safe. It must consider the circumstances in which the episode may occur and any post-ictal symptoms and risks.

5. The tribunal was entitled to take account of the fact that the claimant drove. That fact did not establish that driving, or following a journey, was safe. In light of the neurologist’s clear advice that the claimant should stop driving and inform the DVLA, fuller reasons were required for treating that advice as mere caution.

6. The rehearing required a complete reconsideration of the appeal. Evidence relating to the period up to the Secretary of State’s decision could be admitted even if obtained later, consistently with R(DLA) 2 & 3/01. The new tribunal would not be bound by the previous decision and could reach the same or a different outcome.

• Upper Tribunal (Administrative Appeals Chamber) — The First-tier Tribunal’s decision of 19 December 2023 was set aside for material error of law. The matter was remitted for rehearing before a differently constituted panel.
• First-tier Tribunal — The claimant’s appeal against the Secretary of State’s decision was dismissed.