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[1997] UKSSCSC CDLA_8353_1995 (07 August 1997)

R(DLA) 3/98

Mr. D. G. Rice CDLA/8353/1995

Mobility component - schizophrenic - whether suffering from state of arrested development of the brain - whether suffering from severe impairment of intelligence

The claimant, who was aged 60, had suffered from schizophrenia since she was 16. Her claim for the higher rate of the mobility component of disability living allowance was disallowed. Her appeal to a disability appeal tribunal was dismissed on the ground that she did not suffer from a "state of arrested development of the brain" for the purposes of regulation 12(5) of the Social Security (Disability Living Allowance) Regulations 1992, because she experienced lucid intervals. The claimant appealed to the Commissioner. The Commissioner heard expert medical evidence on the nature of schizophrenia, to the effect that 30% of sufferers had experienced neuro-developmental damage which prevented the proper organisation of cells in the meso-limbic system and possibly in the cerebral cortex, and a further 48% of sufferers had experienced some element of neuro-developmental damage. The medical expert gave his opinion that where such neuro-developmental damage occurred it amounted to arrested development because at some point in the development of the brain there was something missing, which would give rise to consequences resulting in neuro-anatomical abnormality. He also said that, from a medical standpoint, a person could not be said to be suffering from severe impairment of intelligence unless he was intellectually "three standard deviations" below the norm (i.e. an IQ of 55 or below), but that it was not characteristic of schizophrenia sufferers that their intelligence was below normal.

Held, setting aside the tribunal's decision, but substituting a decision to the same effect, that:

the fact that a person has lucid intervals did not mean that he or she did not experience arrested development of the brain (para. 7);

on the evidence, the claimant fell within the 30% group suffering from neuro-developmental damage and therefore had suffered from arrested development of the brain (para. 14);

there was no evidence to suggest that the claimant's intelligence was anything like three standard deviations from the norm and she was therefore unable to satisfy the "severe impairment of intelligence test" (para. 16);

to be "severely mentally impaired" within regulation 12(5) the arrested development of the brain had to result in both severe impairment of intelligence and also severe impairment of social functioning, and as the claimant could not satisfy the test of severe impairment of intelligence, there was no need to investigate in addition whether she suffered from severe impairment of social functioning (para. 17).

DECISION OF THE SOCIAL SECURITY COMMISSIONER

My decision is that the decision of the disability appeal tribunal ("DAT") given on 6 February 1995 is erroneous in point of law and accordingly I set it aside. As I consider it expedient to make fresh findings of fact and to give such decision as I think appropriate in the light of them, I further decide that the claimant does not fall within section 73(3)(a) of the Social Security Contributions and Benefits Act 1992, and consequently is not entitled to the mobility component of disability living allowance at the higher rate.

This is an appeal by the claimant, brought out of time with the leave of a Commissioner, against the decision of the DAT of 6 February 1995. As this case involved the construction of regulation 12(5) of the Social Security (Disability Living Allowance) Regulations 1991, SI 1991 No. 2890, a regulation not entirely free from difficulty, I directed an oral hearing. At that hearing the claimant, who was not present, was represented by Mr. Jason Elliot of Counsel instructed by Messrs. Eve Wee, Solicitors, whilst the adjudication officer appeared by Mr. Jeremy Heath of the Solicitor's Office of the Department of Social Security.

The question for determination by the tribunal was whether the claimant was entitled to the mobility component of disability living allowance at the higher rate. In the event, the tribunal, upholding the decision of the adjudication officer, decided that she was not.

For the claimant to succeed she had to show that she could bring herself within section 73(3) of the Social Security Contributions and Benefits Act 1992. This reads as follows:

"73. (3) A person falls within this subsection if-

(a) he is severely mentally impaired; and

(b) he displays severe behavioural problems; and

(c) he satisfies both the conditions mentioned in section 72(1)(b) and (c) above [the highest rate care component]."

To succeed the claimant had to satisfy each of the heads (a), (b) and (c). The tribunal took the view that the claimant failed at the first hurdle, in that she was unable to establish that she was severely mentally impaired.

What constitutes severe mental impairment is defined in regulation 12(5) of the Social Security (Disability Living Allowance) Regulations 1991. It provides that a person is severely mentally impaired:

"if he suffers from a state of arrested development or incomplete physical development of the brain, which results in severe impairment of intelligence and social functioning."

The claimant has the misfortune to suffer from schizophrenia. She contracted this condition at about the age of 16 and is now aged 60. The first question to arise before the tribunal was whether this condition was the result of "arrested development ... of the brain". In CDLA/156/1994 I decided that the human brain had developed fully by at least the age of 30. In CDLA/393/1994, where a claimant was aged between 23 and 24 at the onset of her disability, I decided this was towards the end of the time span for the development of the brain. In the present case, the claimant was 16 when she first suffered from schizophrenia, and it could reasonably be contended that at this point in time the claimant's brain had not fully developed. If this was the case, did her condition arise from arrested development? In CDLA/156/1994 I heard expert evidence on what constituted "incomplete physical development" and "arrested development" of the brain, and concluded as follows:

"Where a child's brain failed to grow in the proper way, and this could be physically seen, then there was 'incomplete physical development'. Where, however, on examination of a child's brain there was nothing which appeared to be physically wrong with it, but the function of the brain was nevertheless deficient, then it was said there was an 'arrested development'. What was missing was not apparent physically, but the consequences of the deficiency were only too apparent."

The tribunal were not satisfied that a person "suffering from schizophrenia" was suffering from "a state of arrested development of the brain". Accordingly, they decided that the claimant, though suffering from this condition, was not suffering from a state of arrested development of the brain. They appear to have been influenced by the fact that the claimant had lucid intervals. However, in the light of the expert medical evidence presented to me, to which I will shortly refer, in my judgment, the fact that a person has lucid intervals does not mean that he or she did not experience arrested development of the brain. If the tribunal were to justify their conclusion that the claimant was not suffering from a state of arrested development of the brain, they should have given full and sufficient reasons for their conclusion. There was a clear breach of regulation 29(5)(b) of the Adjudication Regulations, and as a result I must set aside their decision. However, I do not think it necessary for me to remit the matter to a new tribunal for rehearing. I have had the benefit of expert evidence before me, and consider it more convenient if I determine the matter myself, and dispose of the appeal finally.

I have had sight of a written report on the nature of schizophrenia by Dr. Lawrence Measey, a consultant psychiatrist at Coventry Health Care NHS Trust Mental Health Unit. Moreover, Dr. Measey made himself available for questioning at the hearing, so that he was able to enlarge upon and clarify various aspects of his report. I am very much indebted to Dr. Measey for his assistance.

Dr. Measey explained that some 30 years ago it was often claimed that, as no obvious and consistent change in the neuro-anatomy or histology of the brain could be found in the case of a person who suffered Lorom schizophrenia, the disease was one of dysfunction of the brain rather than the result of defects in its substance. Thus, schizophrenia was described as a "functional psychosis" as opposed to psychosis and other mental impairments due to organic changes within the brain. However, within the last 20 years or so more vigorous scientific methodology, allied to sophisticated technologies developed for the study of the brain, had seriously put into question the description of schizophrenia as a functional psychosis. Indeed, since the late fifties it had become clear that the spectrum of schizophrenic disorders ranged from severe chronic deteriorating illnesses to a group of psychoses that had a shorter course, were easier to treat, and left little residue behind them.

Dr. Measey explained that some forms of schizophrenia were constitutional in origin, whilst others were sparked off by environmental stress. The latter were those which more readily lent themselves to treatment, and eventual cure, but a person with a constitutional condition might also be subject to environmental stress factors. Dr. Measey also pointed out that some disorders identical to schizophrenia could arise as a result of damage to the brain in later life, particularly those traumas which affected the temporal lobe.

However, in the case of those suffering from a constitutional condition, it appeared, Dr Measey said, that there was a distortion in the anatomy of the brain. In the words of his written report:

"Schizophrenic disorder is the most common of all the major psychoses. It is clear that it is caused by underlying defects of neurobiology, though the exact mechanisms still, remain obscure. Recent developments in molecular biology, neuro-anatomic pathology, neuro-chemistry and functional imagining suggest that there is not only distortion in the function of the brain but also in its anatomy. It is hypothesised that genetic factors and perinatal intrauterine factors contribute in causing damage to neurodevelopment of the twelfth week of gestation. This interruption of normal development affects sophisticated communication skills and abstract reasoning which are not commissioned by the brain until at the age of 15 and is supposed to be fully mature at about 25, though other experts would push this to the age of 30. The middle age of onset for males with schizophrenia is 22 and for females some five years later. The gender difference may be explained by biological differences between the sexes but also it might be explained by different social and environmental stresses which have tended to occur earlier in male lives compared with females. Social stress of its own accord is probably significant in the timing of schizophrenia but is only likely to have a major contribution to cause less serious and more recoverable form of the disorder."

Dr. Measey said that approximately 30% of those suffering from schizophrenia had suffered neuro-developmental damage which prevented the proper organisation of cells in the meso-limbic system and possibly in the cerebral cortex. Manifestly, they suffered from an anatomical dysfunction of the brain. However, in the case of some 22% of schizophrenics there was no apparent anatomical effect, and the remainder of sufferers, some 48%, experienced various degrees of neuro-developmental damage. Presumably, as those falling within the 48% category experienced some element of neuro developmental damage, they also suffered some degree of arrested development of the brain, but as will appear later, I am not in the event concerned with the 48%, but solely with the worst 30% of sufferers.

I asked Dr. Measey whether the neuro-developmental damage, where it occurred, could be said to be an "arresting" of development as distinct from development in the wrong way. He replied that it would be an arresting because at some point in the development of the brain there would be something missing, which would give rise to consequences resulting in neuro-anatomical abnormality. I take it from this that those who fall within the worst 30% of sufferers have experienced arrested development of the brain.

In the present case, the claimant experienced schizophrenia at a very early age, her condition has been unremitting throughout her life, and she has displayed all the features associated with schizophrenia in its severe form. Accordingly, I am satisfied that the claimant falls within the 30% group referred to by Dr. Measey, and as a result suffers from arrested development of the brain. She therefore satisfies the first condition set out in regulation 12(5). But does this arrested development of the brain result in "severe impairment of intelligence and social functioning"? It is to be noted that there are two requirements here. The arrested development of the brain has to result in severe impairment of intelligence and also severe impairment of social functioning. I will deal first with the former.

Dr. Measey said that, from a medical standpoint, a person could not be said to be suffering from severe impairment of intelligence, unless he was intellectually "three standard deviations" below the norm. A deviation was 15%. Dr. Measey explained how the system worked. The average IQ is 100. 72% of the population fall within the range 85-115. Those who have an IQ of 85 are one standard deviation below the norm, those with an IQ of 70 are two standards below, and those with an IQ of 55 are three standards below. Dr. Measey stated that it was not a characteristic of sufferers from schizophrenia that their intelligence was below normal. The manner in which they responded or reacted to others might be strange, but it had no bearing on their intelligence.

Applying the above yard stick to the present case, I see nothing to suggest that the claimant suffers from any impairment of intelligence, let alone severe impairment. It would be surprising if she did, as a lack of intelligence is not a normal feature of schizophrenia, and certainly no evidence has been presented to suggest that she is anything like three standard deviations from the norm. Accordingly, she is unable to satisfy the "severe impairment of intelligence test".

In view of the above finding, it is unnecessary for me to go on to consider whether the claimant suffers from severe impairment of social functioning. As explained earlier, to be "severely mentally impaired" within the definition contained in regulation 12(5) the arrested development of the brain has to result in both severe impairment of intelligence and also severe impairment of social functioning. It is not a question of satisfying one or other of these tests. And as the claimant cannot satisfy the test of severe impairment of intelligence, she falls outside the definition contained in regulation 12(5), and there is no need to investigate in addition whether the claimant also suffers from severe impairment of social functioning.

It follows from what has been said above that the claimant does not satisfy section 73(3)(a), and it is unnecessary for me to consider the other paragraphs of this provision. The claimant does not fall within section 73(3) (no other statutory provision is relevant in this case), and as a result is not entitled to the mobility component at the higher rate. Of course, the adjudication officer's original award of the care component at the highest rate and the mobility component at the lower rate was never in issue before the tribunal, and accordingly I confirm his decision in these respects.

My decision is as set out in paragraph 1.

Date: 7 August 1997 (signed) Mr. D. G. Rice

Commissioner