Decision of the Upper Tribunal
(Administrative Appeals Chamber)
This decision is given under section 11 of the Tribunals, Courts and Enforcement Act 2007:
The decision of the First-tier Tribunal under reference 188/10/07065, made on 10 February 2011 at Cardiff, did not involve the making of an error on a point of law. 
Reasons for Decision
A.	History and background
1.	Mr B was awarded an employment and support allowance from 22 January 2010. He completed a self-assessment questionnaire in April 2010. He did not indicate any particular disability, but did comment that he had trouble staying awake, probably as a consequence of obstructive sleep apnoea. He was then interviewed and examined by a doctor on behalf of the Secretary of State, who found no relevant disability. Given that evidence, it is not surprising that the Secretary of State terminated the award from and including 1 June 2010. Mr B exercised his right of appeal to the First-tier Tribunal, but the tribunal dismissed his appeal. I then gave him permission to appeal to the Upper Tribunal. 
B.	Sleep apnoea
2.	Mr B has sleep apnoea. This is a medical condition that interrupts his breathing while he is asleep. He is not necessarily aware that this is happening, but it does disrupt his sleep and reduce its effectiveness. The result is that he is tired and prone to fall asleep the next day. 
C.	Limited capability for work.
3.	Section 1(3)(a) of the Welfare Reform Act 2007 provides as one of the basic conditions of entitlement to an employment and support allowance that ‘the claimant … has limited capability for work’. This is defined by section 1(4):
(4)	For the purposes of this Part, a person has limited capacity for work if-
(a)	his capability for work is limited by his physical or mental condition, and 
(b)	the limitation is such that it is not reasonable to require him to work.’
4.	Section 8 provides for more detailed provision to be made by regulations. The relevant regulations are the Employment and Support Allowance Regulations 2008. Regulation 19(1) and (2) provide:
19	Determination of limited capability for work
(1)	For the purposes of Part 1 of the Act, whether a claimant's capability for work is limited by the claimant's physical or mental condition and, if it is, whether the limitation is such that it is not reasonable to require the claimant to work is to be determined on the basis of a limited capability for work assessment of the claimant in accordance with this Part.
(2)	The limited capability for work assessment is an assessment of the extent to which a claimant who has some specific disease or bodily or mental disablement is capable of performing the activities prescribed in Schedule 2 or is incapable by reason of such disease or bodily or mental disablement of performing those activities.
5.	Paragraph 11 of Schedule 2 deals with consciousness:
Remaining conscious during waking moments
Descriptors	Points	
(a)	At least once a week, has an involuntary episode of lost or altered consciousness, resulting in significantly disrupted awareness or concentration.	15	
(b)	At least once a month, has an involuntary episode of lost or altered consciousness, resulting in significantly disrupted awareness or concentration.	9	
(c)	At least twice in the six months immediately preceding the assessment, has had an involuntary episode of lost or altered consciousness, resulting in significantly disrupted awareness or concentration.	6	
(d)	None of the above apply.	0	

D.	Why Mr B does not satisfy the personal capability assessment
6.	Mr B does not satisfy the limited capability for work assessment. The effects of sleep apnoea do not come within activity 11. 
7.	The issue is whether Mr B experiences involuntary episodes of lost or altered consciousness during waking moments by reason of his sleep apnoea. The sleep apnoea only takes effect during sleep. By definition, it does not have any effect when he is awake. So, Mr B’s sleep apnoea does not directly affect his capability for work. What it does is to interrupt his sleep, leaving him unrefreshed and liable to fall asleep the next day. What affects him is the natural tiredness that he experiences during the day. 
8.	I do not consider that natural tiredness, even as a result of a medical condition, is appropriately described as involuntary in this context. It is something that we all experience and can control. We have to force ourselves to stay awake and alert when driving, even if we may feel drowsy. We have to force ourselves to stay awake and concentrate during a long meeting in a stuffy room. Once a person is aware of the risk, they are capable of remaining alert.
9.	Also, I do not consider that natural tiredness disrupts awareness or concentration in this context. A person who is asleep is not aware and cannot concentrate. But the activity assumes that the episode disrupts awareness or concentration. That is not a natural way to describe the effect of sleep. 
10.	Finally, I do not consider that natural tiredness fits well under the heading of ‘remaining conscious during waking moments’. That seems to me to assume that someone is affected while otherwise awake. Activity 11 would only apply if it covers falling sleep while awake. That seems a contradiction under this activity. 
E.	Why Mr B does not satisfy regulation 29(2)
11.	The effects of some conditions affect a person’s capability for work, but do not fit into Schedule 2. Regulation 29(2) caters for these:
29	Exceptional circumstances
(1)	A claimant who does not have limited capability for work as determined in accordance with the limited capability for work assessment is to be treated as having limited capability for work if paragraph (2) applies to the claimant.
(2)	This paragraph applies if—
…
(b)	the claimant suffers from some specific disease or bodily or mental disablement and, by reasons of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if the claimant were found not to have limited capability for work.
12.	This has to be applied in accordance with the decision of the Court of Appeal in Charlton v Secretary of State for Work and Pensions reported as R(IB) 2/09. The reasoning in that case applies to employment and support allowance: see paragraph 14.
13.	Mr B does not come within regulation 29(2). He does have a specific disease. But there are many jobs that Mr B could do where his tiredness would not put either himself or anyone else at risk. I have to take account of his travel to and from work. It seems that he is still driving. That is surprising if he is falling asleep at the wheel. Be that as it may, his condition would not affect his ability to use public transport. As to the work itself, it would not be sensible for him to work at height, to drive or to operate machinery. He has experience as a legal researcher and he has undertaken a computer course. With that background, he should be able to undertake clerical or office work, which would not involve any risk to himself or others.

Signed on original
on 11 May 2012	Edward Jacobs
Upper Tribunal Judge