UK Social Security and Child Support Commissioners' Decisions

 


CDLA A 1898 2003

DETERMINATION OF APPLICATION FOR PERMISSION TO APPEAL AND

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. I grant permission to appeal to the claimant and, with consent of both parties, allow the appeal. The appeal was against the decision of the Nottingham appeal tribunal on 31 March 2003 under reference U 42 045 2002 04224.
2. For the reasons below, the decision of the tribunal is erroneous in law. I set aside the decision of the tribunal. The appellant requests that I refer the case to a new tribunal for decision, and I do so.
3. The appeal concerns the decision on a renewal claim for disability living allowance. The claimant was awarded the higher rate of the mobility component and middle rate of the care component (daytime care) to 28. 3. 2002. On renewal this was reduced to the lowest rate of the care component (cooking test) to 29. 3. 2004. The appellant asked for reconsideration of the reduction of the care component. When this was refused, she appealed. The tribunal recorded a warning in its record of proceedings that it could reduce as well as increase the award. At the end of the hearing, the tribunal decided that the appellant was not entitled to any award.
4. The statement of reasons for the tribunal decision is lengthy, but the appellant challenged it as inadequate. The Secretary of State's representative, on a submission directed on the application, agreed that it was inadequate with regard to the care component, and I agree also. Accordingly, I allow the appeal. But I also directed a full submission on the application because of the nature of the appellant's problems and the approach of the examining medical practitioner and tribunal to those problems.

The evidence

5. The appellant claimed that she had severe pain in knees and legs, and other problems, and that she was attending the regional pain clinic. Her legs sometimes seize up or give way, causing her to freeze or fall. Her general practitioner confirmed on the claim form: chronic bilateral knee pain, ?chronic regional pain syndrome, under care of pain clinic. The claimant confirmed this to the examining medical practitioner. The examining medical practitioner recorded "pain left knee", noting that "the knee looks normal" and "I do not find anything particularly wrong with her knee. She obviously does have some ongoing pains in this knee but I feel she is able to do everything for herself…" The report records no functional limitation apart from "painful left knee – slight impairment" At the end, the examining medical practitioner notes: "pain in the knee, mostly left side, since the age of 18 – attends pain clinic". There is no comment in the report on the diagnosis of chronic regional pain syndrome.
6. The representative sent in letters from the appellant's general practitioner. One was prepared in 2000. The other was contemporary to the appeal. They confirm that Dr Deighton, a consultant rheumatologist, and Dr Hussain, a consultant in chronic pain management, both thought that the appellant had chronic regional pain syndrome in the knees.
7. The tribunal note of this that "the diagnosis from the rheumatologist and the pain clinic of chronic regional pain syndrome indicates no physical origin for the pain". It accepted the view of the examining medical practitioner that the claimant had slight impairment of one knee due to pain. It gave more weight to the evidence of the examining medical practitioner than that of the general practitioner and the oral and written evidence of the appellant for the following reasons:

"(a) We found the oral evidence of [the appellant] to be implausible, exaggerated and inconsistent.

(b) [The general practitioner] has based the majority of her evidence on reports from [the appellant] and observing her walking within the surgery. General practitioners are trained to accept what they are told by their patients. They do not expect their patients to lie to them. As indicated the tribunal do not feel that [the appellant] is a reliable historian. There have been no x-ray or other investigative procedures to ascertain if there is a physical problem with the left knee….

(c) the clinical examination of the examining medical practitioner … indicates no swelling or deformity of the left knee. The knee looks normal on examination as does the right knee and there is no wasting on either side."

8. I was somewhat surprised by the statement about general practitioner training. I have not sought the comments of the medical member about whether the chairman consulted the medical member before making it. I did invite the comments of the Secretary of State's representative, who stated: "I find it difficult to accept that [the] process of diagnosis should be seen as an uncritical acceptance of what the general practitioner is told by his or her patient". The appellant's representative's submission to the Commissioner includes a very lengthy rebuttal by the general practitioner of the assumptions made by the tribunal (or chairman). Of this the representative says "[the general practitioner] was giving an educated opinion based on her knowledge of [the appellant's] medical history and the likelihood of [the appellant] experiencing the limitations she described." I think it right to record this, as the view of the tribunal (chairman) can be read as professional criticism of the general practitioner and perhaps of the general practitioner's profession. I see no basis for that criticism in this case as presented to the tribunal, and none whatsoever for an unfounded global criticism. The new tribunal will see in the papers a long and careful history of the reviews of the appellant's problems.

Chronic regional pain syndrome

9. I invited specific comments from the representatives about the relevance of chronic regional pain syndrome to disability living allowance and in particular the mobility component. I did so because the tribunal decision could be regarded as having found that the appellant had no physical disablement. This would itself stop any award of the mobility component. It also appears that the tribunal took the view that in the absence of any visible or recordable physical disablement and of any ulterior physical cause for the pain the appellant's evidence about her pain was implausible.
10. I directed a submission from the Secretary of State's representative because there is nothing in the Disability Living Allowance Handbook about the problem. I attach an extract from that summary as an appendix. I note the following points as relevant to this case:

(a) Chronic regional pain syndrome is an uncommon but well recognised medical condition. There was a clear specialist diagnosis that it was present in this case, and no basis on the evidence for ignoring that diagnosis. The tribunal should have taken that into account when considering the view it took of the appellant's credibility in describing her pain.

(b) It is a physical disablement. The tribunal does not have to look behind the syndrome to see if there is some other underlying physical disablement.

(c) The exact cause is unknown so that diagnosis is based on both clinical history and physical examination. In this case the tribunal in effect rejected the evidence of clinical history, or failed to explore it further, and relied purely on a single clinical examination. In doing so, the tribunal excluded, rather than weighed, relevant evidence. There is a weakness in the form of an examining medical practitioner's examination and report in cases such as this as there is limited opportunity for the practitioner to record and evaluate relevant clinical history. The tribunal must take that into account when balancing all the evidence.

(d) Physical treatment is often not successful. Multidisciplinary treatment in a pain clinic is often the best option. In this case the tribunal put no weight on the relevance of the pain clinic treatment, but relied on the absence of scarring and X-rays. Was it ignoring the diagnosis of chronic regional pain syndrome, or did it fail to understand it?

11. I also draw attention to, and with respect endorse, the careful decision of deputy Commissioner Mark in CDLA 948 2000. He emphasises that pain is itself physical in many cases and that a tribunal does not have to look for any other physical cause or effect to accept that. A copy is to be added to the papers in this case.

Directions for the new hearing

12. I refer the appeal to a new tribunal. That tribunal will have the benefit of the now considerable evidence both about the syndrome and about the appellant's medical history to assist it. The appellant and representative are again warned that the new tribunal is looking at the position as at the date of renewal , 30 March 2002, and that a tribunal can reduce as well as increase the award. In particular, there is no automatic expectation of a renewal of a previous award. If the appellant and representative wish to put any further evidence from consultants or carers before the tribunal, they should do so within a month of issue of this decision.

David Williams

Commissioner

20 October 2003

[Signed on the original on the date shown]

Reflex Sympathetic Dystrophy Syndrome

13. Reflex sympathetic dystrophy syndrome (synonyms: chronic regional pain syndrome, algodystrophy, causalgia) is an uncommon but well recognised medical condition. Usually the condition affects a limb in which there is persistent pain, swelling and tenderness following an injury such as a fracture. Initial swelling and redness of the affected part is followed pallor or cyanosis (blue discoloration) with thinning of the skin and underlying subcutaneous tissue with increased sweating and worsening pain. The affected part may be very tender if touched or knocked, and the affected person may become disinclined to move the limb or part of the limb to avoid increasing amounts of pain. Localised bone loss (osteoporosis) may develop. Classically the condition affects the hand and forearm following a fracture of the wrist (Sudek's atrophy). Although a history of trauma may be identified in up to 75% of cases, in some there is no identifiable preceding cause.
14. The exact cause of the condition is unknown. It is postulated that it is caused by abnormalities in the transmission and perception of pain in the nervous system. In addition to occurring as a sequel to a fracture, reflex sympathetic dystrophy can occur after simple sprains, dislocations, deep vein thrombosis, immobilisation of a limb and damage to nerves. Nerve damage may be due to surgery, trauma, stroke or an infection such as shingles. Reflex sympathetic dystrophy develops despite appropriate treatment for sprain, fracture or original condition. The diagnosis is made on the basis of the clinical history and physical examination; there are no specific diagnostic tests. The condition may vary in severity. It may be mild and self – limiting, or remit after treatments such as physiotherapy. In other cases it is progressive leading to obvious physical signs such as colour changes, thinning of skin as described above in the context of persistent pain and decreased use of the limb.
15. Treatment of reflex sympathetic dystrophy is often not successful and the person develops a longstanding (chronic) painful condition. Options for treatment include adequate analgesic drugs, physiotherapy, local injections of various drugs (sympathetic blocks) and surgical division of nerve pathways that are thought to medicate the pain (sympathectomy). Secondary to the physical problems people may become demoralised and increasingly anxious and depressed, especially if treatments fail to control pain. Depression may need to be treated in its own right, and psychological symptoms may exacerbate complaints of pain leading to increased impairment. Multidisciplinary treatment in pain clinic is often the best option, when physical rehabilitation is combined with measures to relieve pain and psychological assessments/treatments. Early intervention seems to have a better outcome in terms of pain relief and maintaining function of the affected part. Invariably in a condition, which proves difficult to treat successfully, specialists will argue the case for different treatment options.
16. Reflex sympathetic dystrophy is recognised as a physical disablement. A person whose hand and forearm is affected following a wrist fracture may have difficulty with grip, fine movements of the fingers, ability to rotate the wrist, ability to lift items and restricted movements at the elbow. If the condition affects the foot e.g. after an ankle fracture or lower leg e.g. after an operative procedure at the knee, the ability to walk could be restricted. The degree of disability will vary between individuals. In some cases psychological factors, including the response to longstanding pain, may be predominant, and the degree of impairment of limb function may be greater than would be anticipated from the findings on physical examination. In such cases degrees of both physical and mental disablement would be judged to co-exist and would be taken in to consideration by the adjudicating authority. Modern treatment of the condition does aim to rehabilitate the individual with an emphasis on maintaining, and improving, wherever possible, limb function. For those however with a long history and established functional restriction significant future improvement is unlikely.

(Notes from the DWP Corporate Medical Group copied from the submission save for adjusted paragraph numbers)