R(A) 1/98
(Re H (a minor))

Mr. M. Heald QC	CA/648/1991
6.4.98
CA (Nourse and Steyn LJJ)
17.2.94
Severely disabled - claimant’s bizarre conduct “behavioural in origin” - whether claimant suffering from mental disablement
The claimant had previously been awarded attendance allowance at the higher rate but on a renewal claim made when she was eight years old only a lower rate certificate was issued.  On review the DMP decided that that certificate should be revoked on the ground that although the claimant displayed bizarre behaviour, her symptoms were behavioural in origin and she did not suffer from a severe mental or physical disability at all.  On appeal it was contended that the claimant was plainly suffering from mental disablement and she should not be refused benefit just because there was no identified disease of the brain to which the cause of her conduct could be attributed.
Held that:
whether a person is suffering from a mental or physical disablement is a matter for the medical authorities alone.  They were entitled to come to a conclusion that bizarre conduct may not be caused by any “disability” but be due to some other medically recognised reason.  The term “behavioural in origin” was clearly one that could properly be used in medical diagnosis.  It was not for a Commissioner to trespass upon a question of medical expertise by purporting to treat it as a question of law.
The claimant appealed to the Court of Appeal who on 17 February 1994 dismissed her appeal (Re H (a Minor)). The Court of Appeal was satisfied that the DMP had found, and intended to find, that the psychological condition from which the claimant was suffering did not (rather than “could not”) amount to mental disability.  The Court agreed with the Commissioner that no question of law was involved and the matter was one for the medical judgment of the DMP on the medical evidence before him.
The judgment of the Court of Appeal appears as an appendix to this decision.

DECISION OF THE SOCIAL SECURITY COMMISSIONER
1.	My decision is that this appeal brought on behalf of the claimant by her mother must be dismissed.  The claimant was not entitled to attendance allowance between 3 May 1988 and 1 May 1990.
2.	I held an oral hearing in the case at which the claimant was represented by Mr. Mark Rowland of Counsel and the Secretary of State was represented by Mr. Leo Scoon of the Office of the Solicitor, DSS.
3.	Attendance allowance had been paid in respect of the claimant, whose date of birth was 1 May 1980, on a certificate dated 15 November 1984 stating that she satisfied or was likely to satisfy both the day and the night “attention” conditions from 15 March 1984 until 15 November 1985.  A further certificate to the like effect was issued on 27 August 1985 for a period up to 1 May 1988.  On 3 May 1988, a further certificate was issued in respect of the period to 1 May 1991, but that stated that the claimant was likely to satisfy only the day “attention” condition.  The claimant’s mother on her behalf sought a review, on which the award given was set aside on appeal to myself as a Commissioner under case CA/709/1989.  The appeal to the Commissioner was allowed on three grounds set out in paragraphs 5, 6 and 7 of that decision, dated 10 July 1990.  The order made on such appeal was that the case was to be reconsidered by the Attendance Allowance Board or its DMP.
4.	A further review was carried out by a DMP on behalf of the Attendance Allowance Board and the decision is dated 29 May 1991.  The decision of the DMP was that the certificate dated 3 May 1988 should be revoked altogether on the ground that the claimant was not suffering from a severe mental or physical disability at all.  The decision was based largely upon two medical reports, one dated 2 August 1988 by Dr. Robinson, a consultant paediatric neurologist at Guy’s Hospital, and the other by Dr. Morrell, a senior registrar in the Department of Adolescent and Child Psychiatry at the West Middlesex Hospital.  The DMP accepted, in paragraph 4 of his decision, Dr. Robinson’s report and found that:
“K. is not mentally retarded, does not exhibit dangerous behaviour or automatisms and on testing it became clear that there was a considerable emotional component involved.”
In paragraph 7, he found it clear from Dr. Morrell’s report that:
“Her attacks do not involve loss of consciousness and their frequency can be modified by the behaviour of those around her and it would be counter productive to treat her differently.”
5.	The conclusion of the DMP at paragraph 8 was:
“I have taken account of all the medical evidence before me, showing that K. has displayed bizarre behaviour and complained of various physical symptoms but doubt is expressed that she has ever suffered from epilepsy in the past and it is clear from recent evidence that there is no diagnosis of an epileptic condition.  Her symptoms are behavioural in origin (and now improving with psychiatric help).  In my view, there is no evidence, therefore, to sustain a finding that at any time during the period under consideration, K. has suffered from a severe mental or physical disability.”
The reference to “epilepsy” in the first sentence of that passage is one which arises because at an earlier stage of the case, the medical conclusion had been that the claimant was suffering from an epileptic condition.  It is quite clear on the evidence, and accepted by Mr. Rowland, that there was a considerable change in the medical view of the condition of the claimant, as can be seen from the three passages quoted above from the decision of the DMP.  I should add at this point that Mr. Rowland also accepted the reference to improvement in the condition of the claimant, since he expressly limited the period of the claim for attendance allowance to 1 May 1990, at the hearing.
6.     The claimant appealed with leave of the Commissioner. Section 35(1) of the Social Security Act 1975 read:
“A person shall be entitled to attendance allowance if he is-
(a)	so severely disabled physically or mentally that he requires, by day from another person, either-
(i)	frequent attention throughout the day in connection with his bodily functions, or
(ii)	continual supervision throughout the day in order to avoid substantial danger to himself or others; or
(b)	so severely disabled physically or mentally that, by night, either-
(i)	he requires from another person prolonged or repeated attention during the night in connection with his bodily functions, or
(ii)	in order to avoid substantial danger to himself or others, he requires another person to be awake for a prolonged period or at frequent intervals for the purpose of watching over him.”
7.	The element in such statutory test which arose as the main issue in the present case turned upon the meaning and application of the part of the expression “disabled physically or mentally” in either of the places in which it appears.  In addition to the submissions made before me at the oral hearing, two written submissions were made on behalf of the claimant, and also a written submission on behalf of the Secretary of State.  In the second submission on behalf of the claimant dated 30 December 1991, the main issue was stated as follows in paragraph 2:
“It is not disputed that the delegated medical practitioner was entitled to use his medical judgement and to conclude that K.’s symptoms were behavioural in origin and it is not suggested that the Commissioner should interfere with that finding.  The issue is whether the delegated medical practitioner was right to hold that K. could not be said to be “disabled .... mentally” because her symptoms were behavioural in origin.  That is a question of law.”
At the hearing, Mr. Rowland submitted that the question of severity was to be decided by the degree of attention required in order to satisfy the test required by section 35.  He accepted that there must be a mental disablement, but his submission was that it was plain that she was suffering from mental disablement.  The meaning of section 35 should be approached in accordance with the tests laid down by Lord Bridge in In re Woodling [1984] 1 WLR 348 at p. 352, where it was said that the language of the section should be considered as a whole rather than an attempt be made to analyse each word or phrase separately in that section.  He submitted that there was no dispute that the claimant required attention, and no policy reason why she should be refused benefit.  She ought not to be refused benefit just because no identified disease of the brain could be medically attributed as the cause of her conduct.  After referring to the medical reports in the papers which are summarised in the decision of the DMP, Mr. Rowland submitted that for the purpose of attendance allowance, if a person has complaints which are psychological in origin that person is still entitled to benefit if the other requirements of section 35 are complied with.  The second written submission on behalf of the claimant, in referring to earlier Commissioners decisions, submitted that decisions CA/440/1989, CA/490/1989 and CA/123/1991 were all wrongly decided to the extent that it was held that the language of subsection 35(1) could be “severed” or “reframed” so that the issue whether a person suffers from severe physical or mental disablement becomes an issue to be decided without reference to his or her needs for attention or supervision.  At the hearing Mr. Rowland also criticised the decision in R(A) 2/92, submitted that it could not be treated as a precedent since the background of facts were not certain from the decision, and may well have been entirely different from those in the present case.
8.	Mr. Scoon, for the Secretary of State, submitted in the first place that any question whether a person is mentally ill is a medical question for the Board or its delegate, (R(A) 4/78) he next submitted that the decision of the DMP at line 2 of paragraph 8 that there was no mental or physical disability was one which was entirely open to the DMP to reach on the evidence before him.  A person may have no disability for the purposes of section 35 but only a personality disorder which was the cause of bizarre conduct such as had been shown on the evidence to have happened in the present case.  If the medical conclusion was, he continued, that the claimant was not suffering from a condition that could possibly be described as a disability in terms of section 35, that was a question for the Board or its delegate, and not a matter of law to be enquired into before the Commissioner.  By the 1975 Act authority was given to the Board to decide any medical matter, see R(A) 4/78 at paragraph 4.
9.	My conclusion is that the case for the claimant has been too widely stated.  Whether a person is disabled physically or mentally is a question for the medical authorities, and for them alone.  In considering such question, they must be entitled to come to a conclusion that bizarre conduct by a claimant may not be caused by any “disability” but for some other reason recognised by the medical authorities.  In the present case, it seems to me that the crucial expression is “behavioural in origin”.  To the layman, or indeed to a Commissioner, it may not be immediately obvious exactly to what extent such a condition can be identified.  In my view it should be accepted that it is a description which can properly be used in medical diagnosis, and was clearly one not unfamiliar to the doctors concerned in the present case.  In my view, it is not possible to fault the DMP for basing his conclusion upon such a concept, except by trespassing upon the question of medical expertise.  There is ample authority that that is not something which the Commissioner can do, purporting to treat it as a question of law.  Clearly in the present case the reported conduct of the claimant was such that caused all those concerned to seek medical advice as to its causation. Once they had expressed their medical concussions upon that question, it was for the DMP, exercising his separate medical judgment, to reach his medical conclusion.  I cannot improve upon a statement of the position in law of the Commissioner than by quoting the concluding statement in paragraph 8 of Commissioner’s decision R(A) 2/90, as follows:
“It is not for me to substitute my own view of the evidence for that of the doctors.  It seems to me that the Board evaluated the evidence which was before them and drew inferences from it which they were entitled to draw.  In doing so they used their expertise and it is not for me to disagree with their clinical judgment.”
10.	In view of my conclusion that the DMP did not commit any error of law, I do not find it necessary to go into a close analysis of the authorities referred to.  It is, I think, sufficient to say that each are examples of a particular set of facts where a medical conclusion has been drawn by the appropriate doctors, and the Commissioners concerned in the authorities, particularly in CA/490/1989 and CA/123/1991, declined to interfere with such medical conclusions.

11.	For those reasons, this appeal must be dismissed.

Date: 6 April 1998	(signed) Mr. M. Heald QC
	Commissioner

The claimant appealed to the Court of Appeal.   The decision of the Court of Appeal follows.

DECISION OF THE COURT OF APPEAL

Mr. R. Drabble (instructed by Hounslow Law Centre, Hounslow, Middx TW3 1JG) appeared on behalf of the Appellant.
Mr. G. Sankey QC (instructed by Solicitor to the Department of Social Security and Health, London WC2A 2LS) appeared on behalf of the Respondent.

LORD JUSTICE NOURSE: This is an appeal brought by the mother and next friend of the claimant, Katherine Michelle H, now aged 13, against the dismissal by one of the social security Commissioners, Mr. Mervyn Heald QC, of the claimant’s appeal from a determination upon review by a delegated medical practitioner (“DMP”), given on behalf of the Attendance Allowance Board, to the effect that as from her eighth birthday the claimant was no longer entitled to attendance allowance.

	That allowance is a non-contributory benefit not governed by sections 64 to 67 of the Social Security Contribution and Benefits Act 1992.  At all times material to this case it was governed by Section 35 of the Social Security Act 1975 in its unamended form, subsection (1) of which provided that a person should be entitled to an allowance if he satisfied prescribed conditions as to residence or presence in Great Britain and either:
“(a)	he is so severely disabled physically or mentally that, by day, he requires from another person either-
(i)	frequent attention throughout the day in connection with his bodily functions, or
(ii) 	continual supervision throughout the day in order to avoid substantial danger to himself or others;”

Paragraph (b) then set out an alternative night time condition.  A person requiring attention only by day or only by night received an allowance at a lower rate and  a person requiring attention both by day and by night at a higher rate.  By regulations made under Section 35(5) there was a further requirement in the case of persons, like the claimant, who were under 16, but nothing turns on that in this case.

	The claimant was born on 1 May 1980.  The earlier history of claims for and payment of the allowance is summarised in paragraph 3 of the DMP’s decision dated 29 May 1991; the previous medical history in paragraphs 3 to 7. For present purposes, it is enough to say that between 1984 and 1989 the claimant was diagnosed as suffering from epilepsy,  but that thereafter that diagnosis fell into disfavour, there having been, as the Commissioner put it, a considerable change in the medical view of the condition of the claimant. Meanwhile, attendance allowance was paid at the higher rate between 1984 and 1988 and at the lower rate from 1 May 1988.  The reduction came about because on 3 May 1988 a DMP decided that only the daytime attention condition was likely to be satisfied.  He issued a certificate accordingly.

	The claimant’s mother then sought a review of the decision of 3 May 1988 and on 15 June 1989 another DMP, so far from reinstating the allowance at the higher rate, decided that the claimant did not satisfy either the daytime or the night-time condition, so that the certificate issued on 3 May 1988 should be revoked in its entirety.  That was followed by a successful appeal to Mr. Commissioner Heald, who set aside the decision of 15 June 1989 and referred the matter back to the Attendance Allowance Board for reconsideration. 

It was following that reconsideration that a third DMP gave the decision of   29 May 1991 with which we are now concerned. He also decided that the certificate issued on 3 May 1988 should be revoked in its entirety.  On 8 October 1992 the claimant’s appeal against that decision was dismissed by the Commissioner, who granted her leave to appeal to this court on 24 February 1993.

	The claimant says that the decision of the DMP contained an error of law and that the Commissioner in his turn erred in law by holding that it did not.  Therefore, she submits, we in this court ought to set aside the decisions of the Commissioner and the DMP and refer the matter to an adjudication officer for second tier adjudication.

Paragraph 8 of the DMP’s decision headed “Conclusion” was in these terms:
“I have taken account of all the medical evidence before me, showing that Katherine has displayed bizarre behaviour and complained of various physical symptoms but doubt is expressed that she has ever suffered from epilepsy in the past and it is clear from recent evidence that there is no diagnosis of an epileptic condition.  Her symptoms are behavioural in origin (and now improving with psychiatric help) . In my view, there is no evidence, therefore, to sustain a finding that at any time during the period under consideration, Katherine has suffered from a severe mental or physical disability.  She does not, therefore, meet the primary condition for an award of attendance allowance.  In the light of this finding my decision, on review, is that the lower rate certificate which was issued on 3 May 1988, be revoked in its entirety.”

As will appear, the crucial sentence in that paragraph is that beginning: “Her symptoms are behavioural in origin”.

	I return to section 35(1).  Mr. Drabble submits that on its true construction that provision requires one to ask, first, whether the person concerned is disabled physically or mentally; secondly, if so, whether he or she is disabled so severely that attention from another person is required.  That was not quite the approach of the DMP.  As appears from paragraph 8 of his decision, he thought that the first question to be asked was whether the claimant had suffered from a severe mental or physical disability.  Because we have not called on Mr. Sankey QC to answer the appeal on behalf of the Secretary of State, I express no view as to which of the two approaches is correct.  For present purposes I will proceed on the footing that it is Mr. Drabble’s.

	Mr. Drabble then submits that the DMP made a simple error.  He accepted that the claimant was suffering from a psychological condition but he concluded, wrongly, that because its symptoms were behavioural in origin it could not amount to a mental disability.  If that was a correct reading of the DMP’s decision, it may well be that Mr. Drabble would be right in saying that he had erred in law. For my part I am unable to read it in that way and to do so would in my view be doing less than justice to the common sense of the matter.

	Turning more closely to the decision, I start at paragraph 2, in which it is said:
“I have carefully considered all the evidence in Katherine’s case and I find that she is not suffering from a severe physical or mental disability and, therefore, does not satisfy the primary condition for an award of attendance allowance.”

Paragraph 3, as I have said, contains a summary of the previous history which takes us down to the decision made on 3 May 1988.  In paragraph 4 the DMP, having stated that he has had regard to medical evidence obtained subsequent to that decision, refers to a report of Dr. R. O. Robinson, a consultant paediatric neurologist, made on 2 August 1988 showing that the claimant was not mentally retarded, did not exhibit dangerous behaviour or automatism, but that on testing it had become clear that there was a considerable emotional component involved.    In paragraphs 5 and 6 there are references to reports from the claimant’s head teacher and an educational psychologist, the latter of whom thought that the claimant had a problem as a result of an as yet undiagnosed condition of a psychological nature. In paragraph 7 the DMP refers to the confusion caused over the amount of supervision the claimant needed on the assumption that she was suffering from epileptic attacks.  Then we find this:
“She has been monitored for physical illness but it seems that all her complaints are psychological in origin.  In the Day Unit she has had no attacks or episodes that would lead the Senior Registrar to believe she was ill.  It is clearly stated she is not mentally retarded and her behaviour and work at school have improved greatly since her admission to the Day Unit.”

	Much of paragraph 7 and the first part of the first sentence of paragraph 8 itself, in which the DMP refers to the display of bizarre behaviour, were taken from a report dated 7 March 1989 by Dr. Jacqui Morrell, the Senior Registrar in the Department of Adolescent and Child Psychiatry at the West Middlesex University Hospital at Isleworth. I will read two paragraphs from that report:
“I have great sympathy for Mr and Mrs [H] in their confusion over the amount of supervision Katherine needs. For many years they were told by doctors that she had periods of loss of consciousness and so they naturally feared for her safety and supervised her more closely than they would have done another child of her age.
However, now that it is clear that Katherine’s “attacks” do not involve loss of consciousness and that their frequency can be modified by the behaviour of those around her, it is counter productive to treat her differently. Her behaviour is not dangerous.”
	
Mr. Drabble says that those paragraphs would have been very relevant if the DMP had got on to the question of needs.  He says that they were irrelevant to the question whether the claimant was mentally disabled or not.  I disagree.  What 
Dr. Morrell was saying there was that now it had been made clear that the claimant was not suffering from epilepsy it would be “counter productive” to give her the amount of attention which was rightly thought necessary when the earlier diagnosis prevailed.  It is implicit in that view that the condition from which the claimant was suffering was not, in terms of psychological conditions, a serious one.  I am certain that that was something both which the DMP was entitled to take into account and which he did take into account.  It was relevant to the question he was considering.

	From the passages in the decision to which I have referred, in particular from those in paragraphs 4 and 7 and the crucial sentence in paragraph 8, it is clear that the DMP was of the opinion, as Mr. Drabble submits, that the claimant was suffering from a psychological condition whose symptoms were behavioural in origin.  The question is whether, as Mr. Drabble further submits, he thought that because it was of that nature it could not amount to a mental disability, or whether he found and intended to find that it did not in fact amount to a mental disability.

	On a literal view of the DMP’s words in paragraph 8 there is something to be said for Mr. Drabble’s view.  He relies in particular on the word “therefore” in the sentence following the crucial sentence.  But I find myself quite unable to attach a decisive significance to the particular words the DMP has used.  He had set himself to decide whether or not the claimant was suffering from a severe mental disability.  He had referred to the evidence at length and, as Mr. Drabble accepts, nowhere in it was there a positive statement to the effect that the claimant was so suffering. The common sense of it is that on the medical evidence before him the DMP was expressing a medical judgment on the question he had set himself. There was certainly evidence perhaps one should say a lack of it, on which he could come to the conclusion he did. I am satisfied that he found and intended to find that the psychological condition from which the claimant was suffering did not amount to a mental disability. I do not think it matters for this purpose that he referred to a severe mental disability and not to a mental disability simpliciter.

In paragraph 9 of his decision the learned Commissioner said:
“My conclusion is that the case for the claimant has been too widely stated. Whether a person is disabled physically or mentally is a question for the medical authorities, and for them alone. In considering such question, they must be entitled to come to a conclusion that bizarre conduct by a claimant may not be caused by “disability” but for some other reason recognised by the medical authorities.”

Mr. Drabble has suggested that the final words of that passage were capable of two interpretations.  I disagree. It seems to me clear, in the context of the case, that what the commissioner was saying (and here I repeat the sentence adapting the last part to suit my purpose) was:
“In considering such question they must be entitled to come to a conclusion that bizarre conduct by a claimant may not be caused by “disability” but by some other psychological condition not amounting to a mental disability”

	I entirely agree with the learned Commissioner.  He took the view that no question of law was here involved.  The question, as he said, was one for the medical judgment of the DMP on the medical evidence which was before him.  It was for the DMP in the first instance to apply his understanding of the expression “mental disability”.  Unless it can be suggested, and in my view it cannot, that he arrived at a conclusion necessarily involving an interpretation of that expression which could not reasonably be given it, there is no ground on which the court can interfere with his decision.

For all these reasons, I am of a clear view that this appeal must be dismissed. 

LORD JUSTICE STEYN: This appeal turns on a narrow point, namely the correct interpretation of the decision of the Delegated Medical Practitioner.  I agree with the way in which Nourse LJ has construed that decision in the context in which it was made.  The decision reveals no error of law and there is nothing that I wish to add to what Nourse LJ has observed.

I also dismiss the appeal.