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THE INDUSTRIAL TRIBUNALS

CASE REF: 2807/01

APPLICANT: John Wolsey

RESPONDENT: Social Security Agency

DECISION ON A PRELIMINARY HEARING

The unanimous decision of the tribunal is that the applicant is a disabled person within the Disability Discrimination Act 1995.

Appearances:

The applicant was represented Mr Stockman, Barrister-at-Law, instructed by Culbert & Martin, Solicitors.

The respondent was represented by Mr Turkington, Barrister-at-Law-instructed by The Departmental Solicitor's Office.

Upon application by both parties the tribunal agreed to consider the following question as a preliminary issue in the case:-

" Whether the applicant is a 'disabled person' within S1 of the Disability Discrimination Act 1995."

This application is concerned exclusively with "mental impairment" within the Disability Discrimination Act as set out below.

The applicant, who was born on 24 December 1949, worked in the textile industry since he was 16 years old until he was made redundant two years ago. By the date of redundancy he had achieved the post of Cutting Room Manager from having started as a cutter. The work he did was familiar to him. It was not disputed that the applicant had been diagnosed with depression and prescribed Valium from as early as 1970 when he was only a young man. He was seen as a psychiatric out-patient at St Luke's Hospital, Armagh as early as January 1971 where he was labile and anxious and had been suffering from poor sleep and low self esteem. His mood was described as "fluctuant without signs of consistent depression". He continued on Valium throughout. He was also prescribed Diazepam for his anxiety/depression. It was not disputed that such medication is indicative of a severe and disabling anxiety and indeed that is how such medication is described by "MIMS" ( Monthly Index of Medical Specialities"). The applicant gave a history of physical problems. The tribunal is satisfied from the medical evidence and treatment that such physical complaints were viewed as hypocondrical manifestations of an underlying psychiatric condition. These physical manifestations, lumbago, limb aches etc. made the applicant extremely anxious and disrupted his sleep and he felt they were not being taken seriously. Eventually, the applicant saw a chiropractor and with his intervention and Diazepam he began to sleep better and was less exhausted. The applicant was aware of the addictive nature of Diazepam and has tried to come off it. There was some dispute in this case as to whether he had successfully done so for a significant period of time in the past. Whether he had or not, the tribunal is satisfied that the applicant has a dependency on his medication. Further, the tribunal was more than satisfied that the applicant has had no wish to stay on his medication and has faithfully and carefully taken the minimum required to help him to cope with staying at work and living as social a life as possible. Indeed the tribunal was very impressed by the manner in which the applicant described the effort required of him to "hide" his mental disabilities from work colleagues. The tribunal accepted that the applicant took steps to disguise any shortcomings in his ability to learn and concentrate. The tribunal was satisfied that the fact that he was familiar with his work and his colleagues, with whom he spent some 27 years on a regular daily basis, made it possible for him to hide those shortcomings. The tribunal accepted that, even on medication, the applicant found it difficult to learn new patterns or to remember familiar names and that new work heightened his feelings of anxiety.

The tribunal accepted the applicant's evidence that on 27 July 1995 his health deteriorated to the point where he told his GP that he could no longer carry on working. He was extremely and frequently labile and increased medication was not helping. His GP again referred him as a psychiatric out-patient to St. Luke's Hospital, Armagh. There he saw Doctor McCourt who confirmed a diagnosis of Anxiety State. Doctor McCourt prescribed Lustral and she and the applicant discussed the discontinuance of Diazepam. The applicant's condition improved on Lustral. At subsequent reviews in September and December it was noted that the applicant was still taking Diazepam as well as Lustral although he had reduced his intake of Diazepam.

The applicant saw Doctor P S Curran FRCPsych for the purposes of this application on 22.7.02. Doctor Curran accepted that the applicant has a "well controlled liability to claustrophobia and panic disorder……and armed with his Valium and Lustral he was always able to work and always able to disguise this difficulty". Doctor Curran noted his psychological dependence on the tranquilliser Valium and the anti-depressant Lustral albeit in modest doses. Doctor Curran also noted the applicant's history of disguising his psychological difficulties from others. Doctor Curran further stated:-

"For all his adult life the applicant has disguised his (short panic attacks or claustrophobic discomfiture) from others. Indeed they would not notice it. He has relied heavily on Valium for 30 years and on Lustral for 12 years and, in effect, taking those tablets and armed with his own common sense, he has kept his psychological difficulties under control…. If he did not take those medications it is likely he would have more obvious signs of emotional distress when in claustrophobic or social settings…. We might suppose or guess that if he had not been taking medication that he might have had difficulty in the various measures of "day to day activity" but that is an imponderable which I cannot answer."

The relevant provisions of the Disability Discrimination Act 1995 are herein set out.

Section 1-(1)

" Subject to the provisions of Schedule 1, a person has a disability for the purposes of this Act if he has a…..mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.

(2) In this Act "disabled person" means a person with a disability.

Schedule 1 paragraph 1-(1) provides:-

1(1)- " Mental impairment" includes an impairment resulting from or consisting of a mental illness only if the illness is a clinically well-recognised illness.

Schedule 1 paragraph 4 (1)(g) provides-

4-(1) An impairment is to be taken to affect the ability of the person concerned to carry out normal day-to-day activities only if it affects one of the following-

(g) memory or ability to concentrate, learn or understand.

Schedule 1 paragraph 6 (1) and (2) provides:-

6-(1) An impairment which would be likely to have a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities, but for the fact that measures are being taken to treat or correct it, is to be treated as having that effect.

(2)- in sub-paragraph (1) "measures" includes, in particular, medical treatment ……

Guidance issued by the Secretary of State pursuant to Section 3 of the Disability Discrimination Act 1995.

Paragraphs [1472], [1473] and [1474] regarding Memory or Ability to Concentrate, Learn or Understand.

[1472]

Account should be taken of the person's ability to remember, organise his or her thoughts, plan a course of action and carry it out, take in new knowledge, or understand spoken or written instructions. This includes considering whether the person learns to do things significantly more slowly than is normal. Account should be taken of whether the person has persistent and significant difficulty in reading text in standard English or straightforward numbers.

Examples

[1473]

It would be reasonable to regard as having a substantial adverse effect:

• Intermittent loss of consciousness and associated confused behaviour;

• Persistent inability to remember the names of familiar people such as family and friends;

• Inability to adapt after a reasonable period to minor change in work routine;

• Inability to write a cheque without assistance;

• Considerable difficulty in following a short sequence such as a simple recipe or a brief list of domestic tasks.

[1474]

It would not be reasonable to regard as having a substantial adverse effect:

• Occasionally forgetting the name of a familiar person, such as a colleague;

• Inability to concentrate on a task requiring application over several hours;

• Inability to fill in a long, detailed, technical document without assistance;

• inability to read at faster than normal speed;

• Minor problems with writing or spelling.

The tribunal finds that the applicant has a clinically well-recognised mental illness within paragraph 1 of Schedule 1 of the 1995 Act. Doctor Curran confirmed that the applicant's condition is coded F40.2 in the 10^th Edition of the World Health Organisation International Classification of Mental and Behavioural Disorders. Apart from this classification there is the applicant's history of medication for depression and anxiety not only by his own GP but also from Doctor McCourt, Consultant Psychiatrist.

The question for the tribunal is whether the applicant's condition amounts to a mental impairment which, but for the fact that medical treatment is being taken to treat it, would be likely to have a substantial and long term adverse effect on the applicant's ability to carry out normal day-to-day activities. This is a question of fact for the tribunal to determine taking account of all the evidence in the case.

The tribunal was satisfied that the applicant depends on his tranquilliser and anti-depressant to enable him to function economically, domestically and socially. The tribunal accepts that he has tried to come off his medication and that he is self-motivated to do so. The tribunal is satisfied that it has not been possible for him to do so and is satisfied that without medication he becomes withdrawn, extremely anxious, experiences physical chest pain and fainting fits. Other symptoms are that his sleep pattern becomes badly disrupted. The tribunal is satisfied that even with medication the applicant had difficulty in concentrating on pattern changes at work, that he had to withdraw to his office to focus and that he found learning repetitive tasks difficult and slow. Further, the tribunal is satisfied that even on medication the applicant had difficulty in remembering the names of friends. In the circumstances of such long-term dependency on medication, the type of medication involved, the applicant's attempts to do without his medication, his known difficulties whilst on medication and whilst trying to come off it, the tribunal is satisfied that without his medication it would be likely that the applicant's mental illness would have a substantial and long-term adverse effect on his memory or ability to concentrate, learn or understand within the 1995 Act and its Guidelines. Paragraph [1472] clearly indicates the kinds of matters encompassed by the concept of impairment. Within that paragraph the tribunal is satisfied that the applicant's ability to take in new knowledge, to learn at a significantly slower pace than normal, his ability to concentrate and to remember would be likely to be significantly and substantially impaired without his medication. Given that with his medication he has difficulty remembering familiar names at present, especially in view of all the circumstances of this case, the tribunal is satisfied that it is more likely than not that that situation would worsen without his medication. Consequently the tribunal finds that his present difficulty in remembering familiar names would be likely to become a persistent inability to remember them. In all the circumstances of this case the tribunal unanimously finds that the applicant is a "disabled person" within section 1 of the 1995 Act and decides the preliminary issue accordingly.

Chairman:

Date and place of hearing: 21 and 22October in Belfast

Date decision recorded in register and issued to parties: