DECISION OF THE SOCIAL SECURITY COMMISSIONER

Commissioner’s Case No: CDLA/4400/2001

1.  These are appeals by the Claimant, brought with the leave of the Chairman, against two decisions of the Liverpool Appeal Tribunal made on 4 July 2001. For the reasons set out below I dismiss the appeals.

2.  The Claimant is a woman now aged 60. On 19 March 1997 the Claimant was awarded the lowest rate of the care component of disability living allowance (on the ground of inability to prepare a cooked main meal) for a period which was due to terminate on 30 June 2000. On 20 December 1999 the Claimant applied for a supersession of that award on the ground that her condition had deteriorated. On 28 January 2000 the Claimant also made a renewal claim.

3.   On 4 May 2000 decisions were made on those two applications. On the supersession application the decision was described as a decision “to supersede but not change the decision dated 19 March 1997”. On the renewal application the decision was that the Claimant was not from 1 July 2000 entitled to either component of disability living allowance. The reasons for these decisions were that the Claimant did not satisfy the conditions of entitlement to any rate of either component of that benefit. Those reasons perhaps required that the decision on the supersession application should be to remove the award of the lowest rate of the care component for the short period which remained, but nothing turns on that and it has long since been irrelevant. 

4.   The Claimant’s appeals against those decisions were dismissed by the Tribunal, although its Decision Notice appears in form to relate only to the renewal application. 

5.   The evidence before the Tribunal consisted primarily of the Claimant’s various claim packs, an EMP report dated 8 April 2000, a number of letters from her GP, and the Claimant’s oral evidence, given through an interpreter. 

6.   The Tribunal in its reasons noted that the Claimant’s GP had in his various reports and letters described the various conditions from which the Claimant was or had once been diagnosed as suffering, which included pancreatitis, osteomalacia (painful softening of the bones), a cholecystectomy (removal of gall stones), diabetes and tuberculosis. In a report dated 9 August 1999 (made for the purposes of a previous review application) the GP had further referred to:

	“chronic musculoskeletal pain. A variety of symptomatic treatments have been unsuccessful. 
No diagnosis although calcium and vit D levels have suggested the possibility of 
osteomalacia. Specific treatment for this condition has failed to control the symptoms. 
Prognosis therefore uncertain. 
[The Claimant] frequently complains of pain in various sites [illegible] exercise/walking. No 
significant problem with gait or balance from my observations.”

The Tribunal said that in addition to what it referred to as the “diagnosed conditions” (being those which I referred to above) “the various claim forms and applications for review reveal a recurrent picture, confirmed by [the Claimant’s] own evidence and that of her daughter, that she experiences joint pain, fatigue (possibly extreme) and dizziness.”

7.    The Tribunal then gave reasons for concluding that “none of the diagnosed conditions explains why [the Claimant] experiences the symptoms she does”. The cogency and adequacy of those reasons is not challenged in this appeal.

8.   The Tribunal then said:

	“Is it necessary for a claimant to be able to point to a specific medical diagnosis to establish 
her claim to Disability Living Allowance? Is it open to a decision maker to infer severe 
physical or mental disability from the symptoms experienced by the claimant? 

Commissioners’ decisions R(A) 2/92 and CA/123/1991 are understood to mean that a 
claimant must be able to point to medical evidence of a physical or mental disability in 
addition to the evidence of the symptoms which she experiences. In contrast, the decision 
CDLA/1695/1997 held that the statutory test should be applied to a non medical, functional 
basis. 

These decisions are contradictory and have not been resolved by a decision of a tribunal of 
Commissioners or a Court. As such, this tribunal had to decide which decision to follow. It 
chose to follow R(A) 2/92 because CDLA/1695/1997 has been expressly criticised in more 
recent decisions R(DLA) 7/99, R(DLA) 2/00 and CSDLA/531/2000.

On this test there is no medical evidence to link to the disabilities which [the Claimant] 
exhibits and her application for supersession and renewal of her claim both fail as a result.”

9.  The grounds of appeal are, in effect:

(1)	that the Tribunal was wrong to state the law as it did: the Claimant’s symptoms of pain, fatigue and dizziness should themselves have been regarded as physical 
disablement for the purpose of the statutory provisions relating to the care and 
mobility components. 

(2)	that the Tribunal failed to state whether or not it accepted her evidence that she 
did suffer those symptoms.

10.  If the Tribunal was right in stating the law as it did, it was irrelevant whether or not the Tribunal accepted that the Claimant did genuinely suffer those symptoms and it was irrelevant to what extent it accepted that the symptoms gave rise to mobility problems and care needs.The appeal could therefore not succeed on the second ground alone, and I do not therefore need to consider it. The appeal must succeed or fail on the first ground. 

11. Pursuant to a direction made by another Commissioner I held an oral hearing of this appeal in Bury, at which the Claimant was represented by Ms. Agwuna from the Merseyside Welfare Rights Resource Centre and the Secretary of State was represented by Ms. Heywood of the Office of the Solicitors to the Departments of Health and Work and Pensions.

12.  The Secretary of State does not support the appeal, contending that the Tribunal stated the law correctly. 

13.  The relevant statutory provisions are those in s.72(1) and 73(1) of the Social Security Contributions and Benefits Act 1992 and Reg. 12(1) of the Social Security (Disability Living Allowance) Regulations 1991. S.72(1) and s.73(1)(d) require, as one of the conditions of entitlement to any of the rates of the care component and to the lower rate of the mobility component respectively, that the claimant be “so severely disabled physically or mentally that ...........”. S. 73(1)(a), relating to the higher rate of the mobility component, requires that the claimant be “suffering from  physical disablement such that he is either unable to walk or virtually unable to do so”, and by Reg. 12(1) a person is to be taken to satisfy that condition only if “his physical condition as a whole is such that” he is unable to walk, or is virtually unable to do so within a more elaborate definition of that term then set out. 

14.   In my judgment on the current state of the authorities the law, so far as material to the issue in this appeal, is as follows:

	(1)  It is not enough for a claimant to establish, whether in relation to the care or mobility component, the required degree of need for care, supervision etc. He must in addition establish that those needs arise from “physical or mental disablement”. (In the case of the higher rate of the mobility component it must be physical disablement, and nothing in this decision is intended to cast doubt on that). In my judgment that proposition is established by the decision of the Court of Appeal in R(M) 1/88, where it was held that the claimant was not suffering from “physical disablement such that he is either unable or virtually unable to walk” where he suffered from hysteria which, without causing any separate physical disablement, resulted in him being unable to walk. O’Connor L.J. said:

	“Section 37A ...requires that the person should be suffering from “physical disablement” such that he is either unable or virtually unable to walk. The inability to walk is not iself the physical disablement. There must be some physical disablement such that he is unable to walk.”

	(2)  As regards what amounts to “mental disablement” for this purpose, the weight of authority strongly supports the proposition that there must be a mental illness or disorder recognised by medical knowledge. That was held to be the position in R(A)2/92, R(DLA) 2/00, and in the recent decision of Mr.Commissioner Henty in CDLA/944/2001. In other words, it is not permissible for the tribunal to reason along the lines: “although we are not able to find that the Claimant’s problems stem from some mental illness currently recognised, we are satisfied that they must be due to some sort of mental disorder which has not yet been identified by medical science.” In my judgment if the decision of Mr. Commissioner Levenson in the Common Appendix to CDLA/1659/1997 and other decisions (particularly at para. 8) was intending to state that there need not be a mental illness or disorder known to medical science it was inconsistent with the decisions which I mentioned above. I follow the other decisions (a) because the first two which I mentioned were selected for reporting (b) the second two were decided after and in express disagreement with CDLA/1659/1997 (c) because the reasoning in CDLA/1659/1997 seems to me very arguably to have the effect of departing from the proposition in (1) above and thus to be inconsistent with the Court of Appeal decision in R(M) 1/88 and (d) because I find the reasoning of Mr. Commissioner Henty in para. 10 of CDLA/944/2001 particularly convincing:

		“The claimant has in this context to show he is mentally disabled. The section says 
that. By that, as I have already pointed out, I think must mean that he suffers from 
some mental disorder. What is or is not a mental disorder can only be judged 
according to the professionally accepted opinion of the time - and not by mere, and 
possibly amateur, conjecture.”

	(3)  The same in my judgment applies to “physical disablement” - i.e. the decision maker or tribunal must be satisfied that the claimant is suffering from a medically recognised physical condition. That is in my judgment so because it would be illogical for the position to be different in the case of physical disablement from the position in respect of mental disablement. That is confirmed by the fact that relevant statements in decisions on mental disablement mention physical disablement in the same breath. In R(DLA) 2/00, for example, Mr.Commissioner May said: 

	“I am satisfied that the establishment of a disability caused by a medically recognised, 
physical or mental condition is an essential prerequisite.”

It is therefore not permissible for a decision maker or tribunal to reason along the lines: “we cannot on the evidence say that the claimant’s pain (or whatever) is attributable to some physical cause currently recognised by medical science, but we are satisfied that there must be something physically wrong, albeit that medical science may not yet have identified the condition.”

(4)  However, the points in (2) and (3) above do not necessarily mean that a tribunal has to be in a position to identify which of a number of possibly applicable medically recognised conditions the Claimant is suffering from, provided that it is satisfied that he is suffering from one or more of them and can give cogent reasons for that conclusion. It is not even absolutely necessary that it decide (save possibly in relation to the higher rate of the mobility component) as between a possibly applicable mental condition and a possibly applicable physical condition, provided it is satisfied that the claimant is suffering from one or other, and can give cogent reasons for that conclusion. Further, it is not absolutely necessary, it seems to me, that there be medical evidence specifically diagnosing a medically recognised physical or mental condition. It is possible, although I imagine that such cases would be rare, that a tribunal could validly conclude that a claimant is suffering from a medically recognised condition without a medically qualified person having made a diagnosis to that effect or indeed without there being any medical evidence at all.

(5)  Ms.Agwuna relied heavily on the decision of Mr. Deputy Commissioner Mark in CDLA/948/2000 (which was not mentioned by the Tribunal and of which it is likely to have been unaware, as it was actually decided only a month before the date of the Tribunal’s decision). The Deputy Commissioner held that genuine physical pain is itself a physical disablement, regardless of its origin. He said at para. 32:

	“I direct that the new tribunal shall treat any psychosomatic pain of the type claimed by the 
claimant as a physical disability and as part of the claimant’ physical condition, provided that 
it is satisfied that it is genuine physical pain, whatever its cause.”

However, in my judgment that proposition is not correct. It appears to me to be inconsistent with the principle, which I have considered above to be established by the weight of authority, that there must be a disability caused by a medically recognised physical or mental condition. The mere fact that a tribunal concludes that a claimant is suffering from “genuine” physical pain - i.e. is telling the truth when he say that he feels pain - does not, it seems to me, mean that he must be suffering from a medically recognised physical or mental condition. There may be no physical cause, and nothing amounting to a mental illness. The Deputy Commissioner, in following the decision in the common Appendix to CDLA/1659/1997 and others, stated  in para. 28 of CDLA/948/2000 that he did not consider that there was any conflict between the common appendix and R(A) 2/92. He said:

	“In R(A) 2/92 the issue was whether the claimant suffered from mental disability at all, not 
whether it was necessary to resolve a dispute as to which of two mental disabilities he 
suffered from. The use of the word “recognised” in R(A) 2/92 must be read in this context. 
Mr. Commissioner Skinner was not considering a situation in which there was plainly a 
disability and the only question was which one, and in my judgment can have meant no more 
than that the condition in question must be medically recognised as a disability.” 

However, I accept Miss Haywood’s submission that if  CDLA/1659/1997 was intending to decide that a person can be suffering from “physical or mental disablement” without suffering from a medically recognised physical or mental condition, it was inconsistent with R(A) 2/92. 

15.  In my judgment it is clear from the Tribunal’s reasons that it applied the law in accordance with the principles which I have set out above. It was correct, for the reasons set out above, to conclude from the authorities which it cited that it had to decide whether there was sufficient evidence of  a medically recognised physical or mental condition giving rise to the Claimant’s claimed symptoms of pain, dizziness and general fatigue. 

16. Further, the Tribunal did not in my judgment err, in the context of this case, in referring to the need for a “specific medical diagnosis” or to the need for “medical evidence of a physical or mental disability.”  Although I have stated in para. 14(4) above that evidence in that form may not always be absolutely necessary, the reality in the present case was that it was, because, as the Tribunal explained, there had been detailed diagnosis by the Claimant’s GP of the medical conditions which did exist. The Tribunal had concluded on the medical evidence that none of those conditions explained the Claimant’s symptoms. It was very far from being a case where there had been no or inadequate medical investigations. There was in those circumstances no way in which the Tribunal could have concluded that the Claimant suffered from some medically recognised condition other than the ones which had been diagnosed.

17.  For that same reason it seems to me that the Tribunal cannot be criticised for not having expressly considered whether the Claimant was suffering from mental disablement. There was no medical evidence suggesting any such disablement. 

18. For the above reasons the Tribunal’s decision was not erroneous in law and I therefore dismiss the appeal.

         
                    (Signed)                                           Charles Turnbull
                                                                             (Commissioner)

                    (Date)                                              8 May 2002