“[The claimant] has a long and complex medical history with various diagnoses over the years. In particular, since she had a collapse or possibly a seizure on18/11/2020 , [the claimant] has been seeking a diagnosis which will explain her symptoms. It has been suggested by various medical professionals that she may have had a Transient Ischaemic Attack (TIA), that she may have Non-Epileptic Attack Disorder, or that she possibly has a functional neurological disorder. The neurologists who have treated [the claimant] do not think that she has epilepsy. She is awaiting a further appointment with a neurologist in Sheffield who specialises in functional neurological disorder.”
“28. [The claimant’s] representative submitted that [the claimant] should be awarded descriptor 1(f), on the basis that she could not follow the route of a journey safely as a result of seizures, or in the alternative 1(d), on the basis that she could not follow the route of an unfamiliar journey without another person due to her anxiety. 29. We considered whether or not [the claimant] is able to follow the route of a journey safely without another person. There would be a safety issue if she has seizures that arise without warning and involve a loss of consciousness. We concluded that what she describes as seizures do not involve her losing consciousness without warning. She has provided a description at p322: she loses muscle tone, the left side of her face droops, and she loses the ability to speak. The neurologists treating [the claimant] have been of the opinion ever since her admission on18/11/2020 that any seizures she has are non-epileptic [pZ23]. While a non-epileptic seizure can cause injury, the Tribunal is aware, using its medical expertise, that they are less likely to happen without warning when a person is doing a potentially dangerous activity. The description that [the claimant] gave of the seizures are that they are very brief, lasting only 5-10 seconds [occupational health report, p 386], and also that she has some warning. 30. In gauging any risk to [the claimant] in following journeys, we found it significant that [the claimant] continued to drive, and that she was not advised by any of the medical professionals who saw her in the months after her seizure on18/11/2020 that she could not drive. It was not until she saw a neurologist on13/08/2022 that she was told not to drive and to inform the DVLA; reading the whole of that letter, we formed the view that this was the neurologist being cautious rather than being of the view that there was a genuine risk [Z23 page 115]. …”
“4. Your representative says that the First-tier Tribunal which heard your PIP appeal erred in law because it gave too narrow an interpretation to the decision of the three judge panel of the Upper Tribunal in RJ, GMcL and CS v SSWP [2017] AACR 32 (“RJ”). In particular, it is argued that the First-tier Tribunal took the approach that it applied only to people who lose consciousness without warning as a result of seizures. 5. It is further argued that the tribunal failed adequately to explain what it made of evidence before it which tended not to support its finding that your seizures last “5-10 seconds”, and that it failed to deal with evidence which indicates that you were told that you should not drive by the Occupational Health Adviser, which tends not to support its finding that you were not advised by any of the medical professionals who saw you in the months after your seizure on18 November 2020 that you should not drive. 6. It is suggested that the tribunal’s finding that the neurologist who advised in the letter of13 August 2022 was “being cautious rather than being of the view that there was a genuine risk” may have been irrational or otherwise unreasonable. 7. I am satisfied that each of the grounds of appeal is arguable with a realistic prospect of success. If the tribunal did err in the way I say it might have done, such an error could have been material in the sense that had it not been made the outcome of the appeal might have been different. This warrants permission to appeal to the Upper Tribunal. My permission is unlimited.”
“Assessment of ability to carry out activities 4. - (1) For the purposes of section 77(2) and section 78 or 79, as the case may be, of the Act, whether C has limited or severely limited ability to carry out daily living or mobility activities, as a result of C’s physical or mental condition, is to be determined on the basis of an assessment. (2) C’s ability to carry out an activity is to be assessed- (a) on the basis of C’s ability whilst wearing or using any aid or appliance which C normally wears or uses; or (b) as if C were wearing or using any aid or appliance which C could reasonably be expected to wear or use. (2A) Where C’s ability to carry out an activity is assessed, C is to be assessed as satisfying a descriptor only if C can do so- (a) safely; (b) to an acceptable standard; (c) repeatedly; and (d) within a reasonable time period. … (4) In this regulation- (a) “safely” means in a manner unlikely to cause harm to C or to another person, either during or after completion of the activity; (b) “repeatedly” means as often as the activity being assessed is reasonably required to be completed; and (c) “reasonable time period” means no more than twice as long as the maximum period that a person without a physical or mental condition which limits that person’s ability to carry out the activity in question would normally take to complete that activity.” (2) C’s ability to carry out an activity is to be assessed- (a) on the basis of C’s ability whilst wearing or using any aid or appliance which C normally wears or uses; or (b) as if C were wearing or using any aid or appliance which C could reasonably be expected to wear or use. (2A) Where C’s ability to carry out an activity is assessed, C is to be assessed as satisfying a descriptor only if C can do so- (a) safely; (b) to an acceptable standard; (c) repeatedly; and (d) within a reasonable time period. … (a) “safely” means in a manner unlikely to cause harm to C or to another person, either during or after completion of the activity; (b) “repeatedly” means as often as the activity being assessed is reasonably required to be completed; and (c) “reasonable time period” means no more than twice as long as the maximum period that a person without a physical or mental condition which limits that person’s ability to carry out the activity in question would normally take to complete that activity.”
“In everyday usage one meaning of the word “likely”, perhaps its primary meaning, is probably, in the sense of more likely than not. This is not its only meaning … In section 31(2) Parliament has stated the prerequisites which must exist before the court has power to make a care order. These prerequisites mark the boundary line drawn by Parliament between the differing interests. On one side are the interests of parents in caring for their own child, a course which prima facie is also in the interests of the child. On the other side there will be circumstances in which the interests of the child may dictate a need for his care to be entrusted to others. In section 31(2) Parliament has stated the minimum conditions which must be present before the court can look more widely at all the circumstances and decide whether the child's welfare requires that a local authority shall receive the child into their care and have parental responsibility for him. The court must be satisfied that the child is already suffering significant harm. Or the court must be satisfied that, looking ahead, although the child may not yet be suffering such harm, he or she is likely to do so in the future. The court may make a care order if, but only if, it is satisfied in one or other of these respects. In this context Parliament cannot have been using likely in the sense of more likely than not. If the word likely were given this meaning, it would have the effect of leaving outside the scope of care and supervision orders cases where the court is satisfied there is a real possibility of significant harm to the child in the future but that possibility falls short of being more likely than not. Strictly, if this were the correct reading of the Act, a care or supervision order would not be available even in a case where the risk of significant harm is as likely as not. Nothing would suffice short of proof that the child will probably suffer significant harm. The difficulty with this interpretation of section 31(2)(a) is that it would draw the boundary line at an altogether inapposite point. What is in issue is the prospect, or risk, of the child suffering significant harm. When exposed to this risk a child may need protection just as much when the risk is considered to be less than 50-50 as when the risk is of a higher order. Conversely, so far as the parents are concerned, there is no particular magic in a threshold test based on a probability of significant harm as distinct from a real possibility. It is otherwise if there is no real possibility. It is eminently understandable that Parliament should provide that where there is no real possibility of significant harm, parental responsibility should remain solely with the parents. That makes sense as a threshold in the interests of the parents and the child in a way that a higher threshold, based on probability, would not. In my view, therefore, the context shows that in section 31(2)(a) likely is being used in the sense of a real possibility, a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case.”
“29. We considered whether or not [the claimant] is able to follow the route of a journey safely without another person. There would be a safety issue if she has seizures that arise without warning and involve a loss of consciousness. We concluded that what she describes as seizures do not involve her losing consciousness without warning. She has provided a description at p322: she loses muscle tone, the left side of her face droops, and she loses the ability to speak. The neurologists treating [the claimant] have been of the opinion ever since her admission on18/11/2020 that any seizures she has are non-epileptic [pZ23]. While a non-epileptic seizure can cause injury, the Tribunal is aware, using its medical expertise, that they are less likely to happen without warning when a person is doing a potentially dangerous activity. The description that [the claimant] gave of the seizures are that they are very brief, lasting only 5-10 seconds [occupational health report, p 386], and also that she has some warning.”