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[2002] UKSSCSC CSDLA_894_2001 (21 May 2002)

THE SOCIAL SECURITY COMMISSIONERS

Commissioner's Case No: CSDLA/894/01

SOCIAL SECURITY ACT 1998

APPEAL FROM THE APPEAL TRIBUNAL UPON A QUESTION OF LAW

COMMISSIONER: L T PARKER

ORAL HEARING

Appellant: Respondent: Secretary of State

Tribunal: Glasgow Tribunal Case No: U/05/098/2000/03065

DECISION OF SOCIAL SECURITY COMMISSIONER

The decision of the Glasgow appeal tribunal (the tribunal) held on 1 February 2001 is erroneous in point of law. Accordingly, I set it aside and remit the case for rehearing by a differently constituted tribunal in accordance with guidance given below.

THE ISSUE

A controversial issue raised by the appeal concerns the singular requirement for entitlement to higher rate mobility component of disability living allowance (higher mobility) that the claimant's walking problems arise from physical disablement.

As it was put by Deputy Commissioner Warren in CDLA/5183/1997 at paragraph 5 of his decision:-

"For the purposes of a DLA claim, it does not usually matter whether a person's disability is mental, physical or a combination of the two. But higher rate mobility component is different. This is because section 73(1)(a) Social Security Contributions and Benefits Act 1992 entitles a person to that rate of the component if "he is suffering from physical disablement such that he is either unable to walk or virtually unable to do so". And regulation 12(1)(a)(ii) Social Security (DLA) Regulations 1991, under which the majority of awards are made, refers to the need for the claimant's "physical condition as a whole" to be such that (s)he is virtually unable to walk."

The point of distinction is that for any rate of the care component under s.72 of the Social Security and Contributions and Benefits Act 1992 (the Act) and for lower rate mobility component under s.73(1)(d) of the Act, the governing phrase is that the claimant must be "so severely disabled physically or mentally that".

BACKGROUND

The claimant had been found entitled to higher mobility and the lowest rate care component of disability living allowance (lowest rate care) from 22 September 1993 to 29 November 1995. This was followed by an award of higher mobility and middle rate care component (middle rate care) from 30 November 1995 to 21 September 1996 and a repeat award of higher mobility and middle rate care from 22 September 1996 to 21 September 1999.

In issue before the tribunal was entitlement on a renewal claim. The adverse decision of the Secretary of State on 21 September 1999 gave the claimant lower rate mobility component of disability living allowance (lower mobility) and lowest rate care because, in the latter case, of her inability to prepare a cooked main meal. The award was for the period from 22 September 1999 to 21 September 2001.

The papers relating to the immediately previous award were before the tribunal. In her claim form signed 23 May 1996, the claimant listed her disabilities as chronic obstructive airways disease/asthma, severe constant pain affecting left chest wall, arthritis, restricted movement left side, bladder incontinence, severe migraines and spondylitis.

Accompanying the 1996 claim form is a letter from the claimant's General Practitioner (GP) dated 22 June 1994 describing three problems; migraine, chronic obstructive airways/asthma and some osteo-arthritis in neck and lumber spine with recent complaints of pains and swelling in her hands. A report from the same GP in June 1996 states that the claimant is in severe pain although no definite diagnosis has been made, "?? thoracic nerve root entrapment". The GP also notes that she is very agitated and depressed and has the most intractable pain he has ever seen. A letter of 19 January 1996 from the consultant anaesthetist at a pain clinic records the claimant's attendance for "severe pain affecting her left chest wall".

In the renewal claim in issue, the GP on 6 April 1999 lists "chronic pain (neuralgia), depressive illness, recent anxiety/attending psychiatrist at … hospital, long-standing duodenal ulcer, long-standing COAD/asthma, short of breath on exertion." The appellant says that she can walk 200 yards before severe discomfort in 10 to 15 minutes. She experiences panic and anxiety, complains of falls, and has a need for assistance with self-care owing to lack of motivation and concentration due to depression and physical exhaustion.

On 13 September 1999, the claimant was seen by an examining doctor (EMP). The claimant gave him an account of her difficulties very much in line with what she had written on the renewal claim. The EMP report has detailed clinical observations , including a finding of no muscle wasting, multiple cuts and bruises on the legs and arms and slight bilateral knee crepitus but full function of all limbs. She had a slight wheeze.10.

The EMP considered that panic disorder was the main problem with walking (see page 65) "as physically despite her polypharmacy there was very little to find on examination". Similarly, panic attacks caused hyperventilation which led to dizziness and then falls and she could only use stairs and take a bath or shower with someone's help due to fear of such falls. Focus on hot pans was difficult. She sometimes used a wheelchair, which had to be pushed.

For the tribunal hearing, a letter from the GP dated 23 January 2001 was lodged. He wished to support her claim and noted that he had been her GP for the prior 11 years during which time she had been chronically disabled as a result of several factors. These were now listed, with explanatory details, as asthma/COAD, migraine, neuralgia (chronic pain left chest wall), anxiety/depression, dyspepsia, joint pains (severity recently requiring regular analgesia – left leg giving way under her), hypertension and recent incontinence.

TRIBUNAL DECISION

The tribunal unanimously confirmed the decision under appeal to it. The tribunal's findings in fact included the following:-

"9. The tribunal adopted as its own findings the clinical findings of the Examining Medical Practitioner on pages 59 and 61 of the papers.

10. The tribunal found that [the claimant's] disability was to be attributed to her depression and anxiety to a greater degree than her physical disabilities. The tribunal considered that the opinion of the Examining Medical Practitioner on this matter (page 74 of the papers) was correct and that [the claimant's] disability was due to physical factors only to about 25%.

11. The tribunal found that [the claimant] was not unable to walk or virtually unable to walk. The tribunal found that [the claimant] would be able to walk at least 100 yards before the onset of severe discomfort at a slow pace.

12. [The claimant] would require guidance and supervision from another person to allow her to walk out of doors on unfamiliar routes.

13. [The claimant] did not require supervision at home by day or night.

14. [The claimant's] physical disabilities were not such that she required attention with her bodily functions by day or by night.

15. The difficulties which [the claimant] suffered as a consequence of her depression and anxiety meant that she would require support and encouragement from her family to help her to cope with daily life but not to such an extent as to amount to attention with her bodily functions.

16. The consequences of [the claimant's] depression and anxiety and her physical disabilities left her unable to prepare a cooked main meal."

The reasons for the tribunal's decision on the mobility component included the following:-

" .. The Examining Medical Practitioner's opinion (page 63 in papers) was that there was no physical reason [the claimant] could not walk several hundred yards before the onset of severe discomfort. The tribunal was satisfied that [the claimant] was not unable to walk or virtually unable to walk. At the hearing [the claimant] gave evidence that her estimate of her walking ability in her claim pack was not correct and that she did not know what 200 yards was. The tribunal did not accept that evidence. The tribunal accepted that, as is often the case with witnesses, [the claimant] might not have been able to estimate 200 yards with precision but nevertheless she would have appreciated that it was a reasonably long distance. [The claimant] stuck (sic) the tribunal as an intelligent witness not likely to make a gross error over distance."

With respect to care, the tribunal first narrated the evidence in the claim pack and at the oral hearing which indicated a high degree of care and then said:-

"The tribunal did not accept that this was an accurate picture of [the claimant's] care requirements .. it was not consistent with the clinical findings of the Examining Medical Practitioner. The tribunal accepted that [the claimant] was depressed and anxious and would be helped and encouraged by her family but not to the extent that she could be considered to reasonably require attention with her bodily functions or supervision or watching over…

On a renewal claim:-

"The onus was on [the claimant] to establish entitlement to any component of disability living allowance. ….. The tribunal noted that different awards had been made in the past. The tribunal considered that [the claimant's] conditions were not such that there could be no possibility of improvement or change. The tribunal had sight of the papers relating to the award which expired immediately before the award under consideration. The tribunal was satisfied that, whatever might have been [the claimant's] previous entitlement to disability living allowance the Secretary of State's decision under appeal correctly reflected [the claimant's] care needs and mobility at the date of the decision."

APPEAL TO THE COMMISSIONER

The claimant appeals to the Commissioner, leave having been granted by a full time Chairman. The original stated ground of appeal was an assertion of inadequate reasons on renewal. The Secretary of State's written submission did not support, relying on R(M)1/96 in which the Commissioner held that a previous award does not raise any presumption in the claimant's favour or result in the need for consistency having to be treated as a separate issue on a renewal claim. However, the requirement for a tribunal to give reasons means it must explain why it is not renewing a previous award unless this is obvious from its findings. The Secretary of State contends that the tribunal decision passes that test.

This is not accepted by the claimant's representative in response. However, a second ground of appeal is now added. In previous awards there was considerable evidence from the GP. The tribunal did not show it had addressed the letter from the GP dated 23 January 2001. In particular, there were no findings of fact on chronic pain in the left chest wall.

I directed an oral hearing to consider CDLA/948/00 (*73/01). Was it correct on the meaning of "physical disablement" (in order to satisfy s.73(1)(a) of the Act) and her "physical condition as a whole" (for the purposes of regulation 12(1) of the Social Security (Disability Living Allowance) Regulations 1991 (the Disability Regulations))?

ORAL HEARING

The case came before me for an oral hearing on 8 May 2002. The claimant was represented by Mr Orr, from Glasgow Social Work Services. The Secretary of State was represented by Ms Stirling, Advocate, instructed by Ms Cairns, Solicitor, of the Office of Solicitor to the Advocate General. I am grateful to them both for their submissions.

THE ARGUMENTS

Mr Orr reiterated the written grounds of appeal. He further submitted that there were other inadequacies. The tribunal clearly relied on the claimant's own estimate in the claim pack that she could walk 200 yards yet ignored her stated timing for that distance viz. 10 to 15 minutes. Nor was that matter put to her in evidence. Therefore, the tribunal erred in its reliance on the distance walked in isolation from the time taken to walk that far.

The tribunal by implication accepted the EMP's opinion that the claimant's disability was 75% due to panic disorder and 25% due to multi-medical problems but did not make clear the impact this had on its resultant decision.

The tribunal made no findings on falls. Care needs may arise through mental disablement and, standing the EMP's opinion on the effect of falls on the claimant's daily life, this was an issue in front of the tribunal. It was not correct to say, as the tribunal did, that her asserted care requirements were "not consistent with the clinical findings of the Examining Medical Practitioner".

Mr Orr submitted that CDLA/948/2000, and its reliance on CSDLA/265/97 (*10/98), was correct. Genuine pain is physical disablement. In any event, the claimant's situation also possibly fell within R(M)1/88. The claimant's anxiety and depression could be a reaction to her physical problems. In such a case, the claimant's depression and anxiety was a manifestation of her physical condition as a whole so that she qualified.

Ms Stirling, on behalf of the Secretary of State, did not support the appeal.

The tribunal had referred to renewal and provided a sufficient underpinning for its adverse conclusion. It said in effect that she had a variable condition and from the relevant date no longer satisfied.

There were sufficient findings and reasons with respect to both care and mobility. The tribunal statement must be read in the light of the evidence given. The claimant's evidence to the EMP and at the hearing did not support entitlement on account of falls. The tribunal is not required to go into minute detail. Their finding that the claimant would be able to walk at least 100 yards at a slow pace before the onset of severe discomfort dealt adequately with walking difficulties.

On that premise, the tribunal was not required to address how far the claimant's problems were due to physical factors. However, if there was error in law, the new tribunal might have to determine whether the claimant (on whom the onus lies) has shown that walking limitations arise from "physical disablement" and "physical condition as a whole". The Secretary of State accepts that CSDLA/265/97, a decision of Mr Commissioner Walker QC, is correct. But CDLA/948/2000, although purporting to follow the earlier decision, went too far. What Commissioner Walker is saying is that the tribunal has to be satisfied that there is actual pain, which is a very high test. Deputy Commissioner Mark in CDLA/948/2000 appears to suggest that all physical pain is part of a person's physical condition even if caused by, or a symptom of, psychological factors.

MY CONCLUSION AND REASONS

Adequacy of facts and reasons

I agree with Ms Stirling that it is perfectly acceptable for the tribunal to set out its facts and reasons briefly. The decision must be read as a whole and one must also take into account that the parties already know the evidence which has been given and arguments which have been put. However, each party, and particularly the party for whom the decision is adverse, must be able to understand its rationale.

The tribunal took a great deal of care as is witnessed by the length of the record of proceedings and of the statement of facts and reasons. Much of the statement however amounts to a narration of the evidence rather than findings of primary fact.

Contrary to Ms Stirling's submission, the claimant clearly said enough to make falls an issue. At the hearing she said she fell regularly and last fell the previous week. To the EMP she said that she fell at a frequency of at least once a week. She had lots of bruises and 4 years earlier had required stitches in the leg. On examination, the EMP recorded multiple cuts and bruises on her limbs and considered she fell as a consequence of panic attacks. The tribunal erred in law in not covering this matter, giving only the bald conclusion that she "did not require supervision at home by day or night". The decision must be set aside.

The tribunal was entitled to rely on the claimant's statement in the renewal claim that she could walk 200 yards out of doors before the onset of severe discomfort. However, as the tribunal's reasoning was that the claimant was an intelligent witness not likely to make a gross error over distance, fairness also required its consideration of her claim that it took 10 to 15 minutes to walk that distance.

A tribunal is not obliged to deal with every item of evidence so long as its decision makes clear that the totality of the evidence has been weighed and the tribunal explains how it resolves all important issues.

In 1996, the claimant was awarded higher mobility and middle rate care. At that date, her GP opined that her chest wall pain was intractable and it was for that pain she was attending the Pain Management Clinic. In the letter of 23 January 2001, the GP refers to chronic pain of the left chest wall helped a little by medication. At the hearing the claimant said that pain in the chest limits her walking and even morphine did not help.

The tribunal makes no finding on whether she suffers chest pain, what effect it has, if any, on her walking and self care and does it amount to physical or mental disablement. Yet such pain was an essential part of her case and the tribunal erred in failing to address it.

The tribunal's findings and reasons on her condition and needs were inadequate and, as a necessary corollary, they were also insufficient with respect to renewal. If the tribunal had stated plainly that the claimant had improved and given some examples, or said that previous decisions were wrong because based on a false premise of fact or law and why, or made such findings of primary fact that non entitlement from the relevant date was patent, there would have been no error. But the tribunal did none of these things.

I sympathise with the tribunal. It was a complex and difficult case. The tribunal has a lengthy list. Nevertheless, it is implicit in the judicial role that sometimes difficult decisions have to be made and explained. However, provided they are so explained and are underpinned by evidence and follow the correct legal approach, then neither party has cause to complain even though a decision goes against them. Evaluation of the evidence and determination of the merits is the tribunal's function.

"Physical disablement" and "physical condition as a whole"

There must be a link between physical disablement and the walking difficulties of which the claimant complains. As was noted by Commissioner Rowland in CDLA/15106/1996 (at paragraph 6):-

"However, it is important to note that "physical disablement" is a phrase that appears only in section 73(1)(a) of the Act. Regulation 12(1) of the Regulations provides that a person shall be taken to satisfy the conditions mentioned in section 73(1)(a) only in the circumstances prescribed in that paragraph of that regulation and the phrase that appears in that paragraph is "physical condition as a whole"."

The judicial authorities

The starting point for any discussion must be R(M)1/88, on earlier but identical statutory wording. In Harrison v Secretary of State for Social Services (reported as an appendix to R(M)1/88), the Court of Appeal confirmed the Commissioner's approach.

The claimant injured his back in an accident. However, the medical appeal tribunal decided that an inability to walk some years later was no longer due to that physical cause but was hysterical in origin. The Commissioner held that the tribunal, the adjudicator of fact, was entitled to hold that the claimant's hysteria was not a manifestation of his physical condition as a whole, although they were equally entitled to find that it was.

In upholding the Commissioner's decision, Stocker L.J. said:-

"Hysteria is not itself a physical condition, since physical and hysterical conditions are often used in contrasting terms, and in my view correctly so. The Commissioner points out, however, that where hysteria is itself a consequence of a physical condition, it is open to a tribunal or medical board, as a matter of medical opinion, to find that where hysteria is caused by a physical condition, for example due to pain due to some spinal condition, the inability to walk may itself be caused by that same physical condition."

He pointed out that the claimant had since been awarded mobility allowance on a further claim and made no suggestion that this was improper.

R(M)1/88 is authority for the proposition that a physical condition may cause a psychological condition which then causes the walking problems and that this can suffice to fit the statutory criteria. Therefore, if pain from an accepted physical abnormality, or the claimant's worries and subsequent reaction to investigations of that physical condition, causes a mental problem which limits the claimant's mobility, then as Stocker L.J. put it, the walking difficulty "may itself be caused by that same physical condition". This chain of causation from a physical disablement to the walking problems, even if a psychological condition such as anxiety and depression or abnormal illness behaviour is the immediate cause of the limitations on walking, is enough.

Moreover, provided a physical disablement is a material cause of the claimant's difficulty in walking, whether alone or in combination with other factors, it is irrelevant if the ultimate cause is mental disablement. In CDLA/16484/1986, the Commissioner was considering chronic fatigue syndrome (CFS). There is considerable medical controversy about the aetiology and progress of CFS. It is usually considered to commence with a viral infection but there is dispute about any objectively verifiable clinical abnormalities after recovery from such infection. The Commissioner held that what matters is the nature of the disablement which results from a particular claimant's CFS at the relevant time. Even if the ultimate origin of the CFS was physical, but during the period in issue when the viral infection has cleared it is low mood rather than any current physical disablement which causes reduced walking, then a claimant does not qualify for higher mobility. Conversely, if depression means that a claimant takes no exercise, as a consequence of which there is muscle wasting and loss of muscle power which now restrict ability to walk, then the walking may be classified as limited by physical disablement. If the claimant's walking restrictions arise from a mixture of mental and physical factors, then the tribunal will have to determine whether a current operative material cause of those restrictions is a physical disablement such that the statutory tests are satisfied.

The examples to illustrate physical disablement given by Deputy Commissioner (now Commissioner) Jacobs in CDLA/16484/1996 are medical signs not symptoms. They are objective clinical abnormalities rather than subjective problems. In Harrison, the Court of Appeal in effect confirmed that hysteria which was purely psychiatric and had no link to any clinical abnormality was insufficient. However, had it been due to the pain consequent on a continuing spinal injury, this would constitute the necessary physical disablement.

Pain

Pain caused by an organic malfunction, such as claudication or arthritis, is undeniably a physical disablement. Walking "without severe discomfort" is an integral part of the test of virtual inability to walk under regulation 12 of the DLA Regulations. What, however, about pain which is psychosomatic? At paragraph 6 of CDLA/15106/1996, the Commissioner said:-

"Pain is a physical symptom and it may be said that in one sense disablement due to pain is "physical disablement". However, it may be a symptom of a physical condition or a psychological condition. In this case, the tribunal found it to be a symptom of a psychological condition and therefore the claimant's circumstances did not fall within the terms of Regulation 12(1)(a) of the Regulations."

In CDLA/5183/97 (*22/99), Deputy Commissioner Warren rightly stressed that what a tribunal must do in each individual case, is to examine the evidence and reach a conclusion on whether the walking difficulties which a particular appellant experiences arise from "physical disablement" (in order to satisfy the statute), and "physical condition as a whole" (in order to satisfy the regulation) and that this evaluation of the evidence is a question of fact. But in upholding the tribunal's conclusion in that case that the claimant's back pain did not arise from physical disablement, he necessarily held that pain which is not due to a physical cause cannot be relied on. The tribunal had so concluded in the light of an orthopaedic consultant report that an MRI scan ruled out physical causes for her pains.

Two cases hold that genuine pain can amount to physical disablement. In CSDLA/265/97, the claimant suffered from CFS. Her complaint was of low back pain and some lost spinal function. The tribunal held that her dysfunction was largely psychosomatic and she was not entitled to higher mobility. It did not accept as proven that CFS has a physical cause. Commissioner Walker held that the tribunal erred in failing to weigh properly the evidence of a consultant that there was a causal connection between trauma sustained by this particular claimant and the development of her CFS.

But the Commissioner, having observed at paragraph 11 of his decision that another medical authority seemed to have accepted that "whether or not the chronic fatigue syndrome itself was physical in nature it produced physical consequences, so far as muscle movements were concerned, which in turn caused pain", then commented that "those movements, being undoubtedly physical, would be enough to satisfy the statutory test."

Later on, in paragraph 16, the Commissioner said:-

"The real question for the new tribunal may well depend upon .. a prior determination as to whether the muscle pains and other physical problems which limit the claimant's walking … are or are not mental, illusory or imaginary. If they are then they cannot be physical disabilities. If they are not then they can be physical disabilities. ….. 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."

In CDLA/948/2000, Deputy Commissioner Mark discusses a claimant who, according to the tribunal findings, suffered from widespread non-specific pain. The EMP could find no objective evidence of abnormality but accepted that the claimant genuinely experienced pain due to psychological causes.

In paragraph 30, having pointed out that "psychological" and "mental disablement" are not synonymous, the Deputy Commissioner continued:-

"If [the new tribunal] concludes that the claimant's pain is indeed real physical pain, then it may not need to be concerned to determine whether there is any mental disablement as well. If, however, it concludes that the pain is not real and physical, then, except in relation to higher rate mobility, it may have to consider whether the claimant has a mental disability….

…………………………..

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's physical condition, provided that it is satisfied that it is genuine physical pain, whatever its cause. …"

Deputy Commissioner Mark said that he was following CSDLA/265/97. He regarded that case (see paragraph 20 of CDLA/948/2000) as authority for the proposition that:-

"If the claimant's muscle pains and other physical problems were not mental, illusory or imaginary, they could be regarded as physical disabilities without investigating whether they are in turn caused by a physical condition."

At paragraph 22, Deputy Commissioner Mark continued:-

"Regulation 12, as amended following the enactment of the Social Security Contributions and Benefits Act 1992, is made pursuant to section 73(5) of that Act which provides for circumstances to be prescribed in which a person is to be taken to satisfy or not to satisfy a condition mentioned in s.73(1)(a) or (d). The regulation is therefore specifying circumstances in which a person is suffering from physical disablement such that he is unable or virtually unable to walk, and the words "physical condition as a whole" must be read in this context. If a person is in such pain that she cannot bear to be touched and cannot put one foot in front of another without agony, I find the greatest difficulty in seeing how this can be said not to be part of her physical condition because there is no physical cause for the pain. I consider that a physical symptom, if genuine, is part of a person's physical condition as a whole even if caused by psychological factors, whether this is pain, paralysis or something more mundane such as skin rash. … It therefore appears to me that the decision of Mr Commissioner Walker QC was correct, and that, as a matter of law, construing section 73 and regulation 12, genuine physical pain is part of a person's physical condition even if caused by, or a symptom of, psychological factors."