The Social Security and Child Support Commissioners
SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT 1992
SOCIAL SECURITY ADMINISTRATION ACT 1992
APPEAL FROM DECISION OF DISABILITY APPEAL TRIBUNAL ON A QUESTION OF LAW
DECISION OF THE SOCIAL SECURITY COMMISSIONER
Claim for: Disability Living Allowance
Appeal Tribunal: Kirkaldy DAT
18 December 1996
"...out of doors without guidance or supervision from another person most of the time."
Mr Cobb's contention cannot be wholly upheld, because in their reasons, having dealt with the higher rate conditions, the tribunal said this:-
"None of the other heads of section 73 are satisfied in respect of an award of the Mobility Component in [the claimant's] circumstances because she is not mentally impaired, does not have severe behavioural problems nor does she need supervision from another person out of doors because she is so disabled physically or mentally to enable her to take advantage of any ability to walk."
That is an indication that the tribunal had at least attempted to consider the provision in question But the passage quoted says little more than that, in terms of the legislation, the claimant does not satisfy the provisions. There are no findings of fact, one way or the other, related to this claimant's possible ability, or otherwise, to take advantage of the faculty of walking out of doors nor whether guidance - because only supervision is mentioned in the reasons - may or may not then be required from another person. Indeed, in the findings there is nothing about supervision either. The new tribunal are directed to consider this aspect of the matter carefully and to assess, bearing in mind the normal meaning of the words, whether either or both of guidance and supervision may be required when this claimant is seeking to walk out of doors and then to assess whether that guidance/supervision is required for "most of the time" - which means, of course, most of the time when the claimant is seeking to walk out of doors. The best approach is probably to seek to determine the extent to which the claimant could walk out of doors and to discover what problems or difficulties she might?encounter if doing so alone. The question may be more easily resolved and the answer explained if findings on these matters are first made.
"...mobility is restricted. Her mobility problems are not caused by physical factors."
They did not record as findings of fact, however, what were the mobility problems which they found did affect the claimant. Nor are there any findings as to whether or not the loss of spinal function had any effect upon the claimant's walking ability in terms of the legislation. It will be for the new tribunal to assess these matters, if appropriate detail is put before them. The old tribunal in their reasons explained their conclusions thus:-
"All the evidence submitted by [the claimant's husband on her] behalf points to thedysfunction being largely psychosomatic because the physical reasons shown to exist are not sufficient to render her virtually unable to walk."
That focuses the problem because the physical reasons shown to exist are not clearly recorded as such. In short, the need for the new tribunal will be to record, as already indicated and in detail, exactly how the claimant's ability to walk is limited or affected and then relate these, as the evidence may persuade them, to the loss of spinal function or to CFS.
."..a Medical Appeal Tribunal on 12.6.95 found [the claimant] was 15% disabled as a?result of her spinal functions for the period 4.7.94 - 11.6.96. The Medical Appeal Tribunal found her 40% disabled by the chronic fatigue syndrome making an assessment of 55% in all for the above period."
But it falls to be noted that the medical appeal tribunal had itself held chronic fatigue as part?of the ciaimant's loss of faculty. It is clear from their reasons - at document M1 - that that specialist body regarded the chronic fatigue symptom complex which the claimant had?sustained as having some physical basis and as having been caused by the relevant accident. The AMA to which the tribunal did not refer, of later date, and as recorded in a letter at documents 111 and 112 of the bundle, made a provisional assessment again at 55% because of the loss of faculty. That loss of faculty was described as -
"...reduced and painful movement of spine, painful range of movement or muscles."
Then it was stated, by the benefits agency in the letter, that "loss of faculty" meant some loss of power or function to an organ of the body. That evidence before the tribunal with whose decision I am concerned certainly warrants Mr Cobb's comment that they had failed to appreciate the totality of the AMA evidence, which included that of the medical appeal tribunal, and there is no explanation as to why the latest of such evidence was rejected nor, indeed, is there any indication that the tribunal appreciated that the medical appeal tribunal findings might have meant that they had accepted the chronic fatigue syndrome complex as involving a physical disablement- even if only, as the AMA pointed out, amounting to a painful range of movement of all muscles.
"I believe her somatic symptoms are true, but their cause is neurotic.
She remains disabled by her symptoms, whatever their cause."
That was from a report prepared for the purposes of the earlier award and it is not clear whether the tribunal appreciated that. The tribunal seem to have been heavily influenced by material related to the original claim because they went on to record that another EMP, Dr Robson, even earlier had been of the opinion that the claimant's:-
"disability may well be psychosomatic in origin and he could find no physical signs to explain the severity of her condition."
They then refer to one of the medical witnesses for the claimant, Dr Weir, but record only that in his report he stated that:-
"..there is no full scientific argument describing a biological sequence of events reacting from physical injury to the development of chronic fatigue syndrome yet available."
That, of course, related to the connection between the original industrial injury and the CFS. Nonetheless they noted that Dr Weir did link the onset of the CFS to that injury. But then the tribunal referred to the hospital test papers and observed that:-
"None of them show a physical reason as being the course of [the claimant's] chronic fatigue syndrome."
They then sumed the matter up by saying that they concluded that the claimant's mobility problems have not been shown to have a physical cause and they noted the Disability Living Allowance Board's recent advice that it is not proven that CFS has a physical cause. The problem thus becomes focused. The tribunal seem to have been looking to see whether it had been established that the claimant's painful conditions were in turn caused by something physical - which in the last analysis is probably inevitable although that it may be getting too metaphysical. They do not seem to have focused upon whether the symptoms - that is to say the pain suffered - was genuinely being suffered in the relevant muscles. If so, it is difficult to see how, whatever may have been the underlying cause of that pain which was and is restricting the claimant in walking, that restriction was not a physical disability. But that is not an end of the matter as the fuller evidence, unreferred to by the old tribunal, tends to demonstrate. I now turn to that evidence.
"... has an organic basis is now undisputed, particularly with reference to the immunulogical disturbances seen, together with consistently recognisable?abnormalities of the hypothalamic-pituitary-adrenal axis.
........the view, once held, that it was an atypical form of depression, is now no longer valid."
In the previous report, at document 122, appears the passage founded upon by the tribunal which is, in full:-
"The question remains as to whether the accident she suffered should be treated materially to the development of an illness. There is a clear temporal relationship between the onset of her CFS and her accident; from experience with other patients which this same sequence of events (following physical trauma), it is very difficult to assert that the two events are purely coincidental. Furthermore, other physicians working in this field, both in the United Kingdom and elsewhere, have observed this relationship in some of their patients.
Conversely, the full scientific argument describing the biological sequence of events leading from physical injury to the development of CFS is not yet available. Nonetheless, in my view, the balance of probability favours the proposition that there is a causal relationship between the physical trauma [the claimant] suffered and the development of her CFS. I am also certain that within the next 5 years, when more is known about the genesis of this condition, this proposition will be validated by full scientific proof."
In context, as it seems to me, what the tribunal were taking as supporting their conclusion about a non-physical disability in this case came from a passage dealing with the causal connection of physical injury which, in any event, the consultant physician was adamant to exist in this case. I suspect that the tribunal did not fully appreciate what Dr Weir was seeking to demonstrate in his opinion: in any event, as a matter of law, they were not entitled to take the passage quoted as supportive of their conclusion. The issue before them was about a physical disability and the passage quoted from document 123 seems to have been overlooked and was, in any event, against the tribunal decision. Its rejection, if it was rejected, has not been explained. Either way there is an error of law.
"...to exclude the claimant from benefit under s73(1), it was necessary for the Tribunal to have made a finding that, in the claimant's case, her ME [now CFS] was in fact - wholly mental" [My emphasis].
The need to determine anything more, such as whether they are in turn caused by a physical condition, such as a virus, a lesion or a malfunction, may matter little for the purposes of section 73 of the Act. If, however, the new tribunal is persuaded to entertain that further issue then they will have to bear carefully in mind Dr Weir's, and the other supporting, views tending to indicate that CFS nowadays falls to be regarded as organic and so physical inorigin. I further direct the new tribunal to that effect.
W M Walker
12 February 1998