UK Social Security and Child Support Commissioners' Decisions

[2004] UKSSCSC CDLA_3612_2003 (06 May 2004)

DECISION OF SOCIAL SECURITY COMMISSIONER

Decision

1. The decision of the Newcastle-Upon-Tyne appeal tribunal (the tribunal) held on 10 July 2003 is not wrong in law. Therefore, the tribunal decision stands.

The statutory provisions

2. S.73(1)(a) of the Social Security Contributions and Benefits Act 1992 (the Act) reads:-

"(1) Subject to the provisions of this Act, a person shall be entitled to the mobility component of the disability living allowance for any period….throughout which –

(a) he is suffering from physical disablement such that he is either unable to walk or virtually unable to do so."

3. Regulation 12(1)(a)(ii) of the Social Security (Disability Living Allowance) Regulations 1991 reads:

"(1) A person is to be taken to satisfy the conditions mentioned in s.73(1)(a) of the Act (….virtually unable to walk) only in the following circumstances –

(a) his physical condition as a whole is such that, without having regard to circumstances peculiar to that person as to the place of residence or as to place of, or nature of, employment –

….

(ii) his ability to walk out of doors is so limited, as regards the distance over which or the speed at which or the length of time for which or the manner in which he can make progress on foot without severe discomfort, that he is virtually unable to walk".

The issue

4. Both the appellant and the examining medical practitioner (EMP) who examined her on 16 September 2002 list the diagnoses in her case as fibromyalgia, depression/panic attacks, arthritis, irritable bowel syndrome, spondylosis, eczema and glue ear. The EMP's clinical findings were to the effect that the appellant had low mood, full function in all limbs with no muscle wasting and normal callosity on both feet, much greater movement of the spine on observation then on formal examination, no neurological deficit nor any significant clinical finding of any kind. It was the EMP's opinion that the appellant's problems were "mainly psychological".
5. The decision under appeal to the tribunal made by a decision maker (DM) on behalf of the Secretary of State on 24 September 2002 was that the appellant was not entitled to disability living allowance (DLA) from her date of claim. The tribunal allowed her appeal to the extent that it awarded the middle rate care component of DLA based on her need for frequent attention throughout the day in connection with her bodily functions; the tribunal accepted that the appellant's "perceptions of pain and inability to function were genuinely held" by her. However, the tribunal refused the higher rate mobility component of DLA (higher mobility) for virtual inability to walk, which was the only contention put to it by the appellant's representative as regards mobility. This was because:-

"[The appellant] appeared to be on relatively minimal treatment and medication for pain and arthritic condition. According to the EMP, the problems were psychological rather than physical…… The Tribunal felt there was insufficient evidence of a physical disability affecting the ability to walk, that would qualify [the appellant] for higher rate mobility."

The tribunal expressly accepted the clinical findings of the EMP as set out above.

6. On the appellant's behalf, her representative appeals to the Commissioner on the following ground:-

"Whether the origin of the condition is physical or psychological is irrelevant. It is the ability to walk that has to be considered."

Another Commissioner granted leave:-

"….to enable the tribunal's approach to the difficult borderline between physical and mental disability in this area to be considered more fully with the assistance of a submission from the Secretary of State".

7. The Secretary of State does not support the appeal, relying on R(M) 2/78 and CDLA/15106/1996, and I accept that lack of support.
8. In response, the representative cites CSDLA/265/97 and CDLA/4486/2000, although neither case was produced to me. However, I discuss all four cases in my own reasons.

My conclusion and reasons

9. The statutory criteria draw a clear distinction between mobility and care needs; the requirement with respect to the latter is that a claimant is "so severely disabled physically or mentally that….". If it is only the actual extent of walking limitations that is considered for entitlement to higher mobility, then the clear legislative distinction between mobility and care requirements is ignored; similarly, the phrases 'physical disablement' and 'physical condition as a whole' are rendered redundant.
10. I considered the singular requirement for entitlement to higher mobility that the claimant's walking problems arise from physical disablement, following an oral hearing in CSDLA/894/01. My views remain the same and I therefore undernote the relevant paragraphs of CSDLA/894/01, which are equally applicable to the present case:-

"3. 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."

4. 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".

……..

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

38. 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

39. 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.

40. 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.

41. 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.

42. 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.

43. 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/16484/1996, 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.

44. 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

45. 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."

46. 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.

47. 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.

48. 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."

49. 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."

50. 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.

51. 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. …"

52. 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."

53. 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."

54. Deputy Commissioner Mark has correctly summarised the thrust of CSDLA/265/97. I am unable to accept the Secretary of State's suggestion that the later decision adds an unwarranted gloss to the earlier. Both appear to me to say that genuine pain suffices.

55. With greatest respect, however, I am unable to agree that those two decisions are correct. The statutory scheme must be read as a whole. A distinction has been deliberately drawn by the legislature between entitlement to higher mobility and entitlement to any other rate or component of DLA. The former alone is based solely on physical disablement and does not allow for mental disablement.

The correct test

56. At its most basic level, "physical" means "of or concerning the body" and "mental" means "of or in the mind". It is difficult to see how any restriction affecting walking does not have a corporeal element. Even the agoraphobic is physically affected by the psychiatric condition. He or she may be able to move freely when indoors but cannot move out of doors. It goes without saying that a claimant's complaint has to be genuine. The person who fakes pain or breathlessness or paralysis unarguably does not succeed. But a scientific basis for a contrast between psychosomatic pain and mental, illusory or imaginary pain is hard to comprehend, insofar as the results affect walking. If the mental problem is unrelated to a bodily symptom or function then it is not psychosomatic, but equally it cannot affect walking which is a physical activity.

57. What then is meant by "physical disablement" as a limiting factor for higher mobility? In the context of physical disablement such that the claimant is unable or virtually unable to walk, as compared with a mental disablement having the same result, it seems imperative that there is current organic abnormality, objectively verifiable, which is a necessary link in the causal chain which restricts the claimant's walking to the required degree.

58. This fits with Harrison v the Secretary of State for Social Services. It underlies the change in opinion with respect to conditions like autism. The immediate cause of restricted walking in such claimants is usually behavioural problems, such as lying down, holding on to an object, refusing to walk. In the past, such claimants failed to be awarded higher mobility. Now, however, it is recognised that autism is due to a chromosomal abnormality so that the necessary physical disablement is accepted.

59. Alternatively, a claimant may for example have physical back problems and also depression. If depression is due to her physical condition, at least in part, or if her physical condition is a material cause limiting her walking, albeit exacerbated by unconnected depression, then a tribunal is entitled to find that any resultant walking difficulties are due to her "physical condition as a whole".

60. It follows that, provided a clinical abnormality is an essential link in the chain of difficulties which result in restricted mobility, and still exists, it does not matter at which stage of the chain it comes. This fits with the illustrations given in CDLA/16484/1996. (In C8/00-01 (DLA)(*49/01), the Chief Commissioner in Northern Ireland said he was following the approach of CDLA/16484/1996 and of the Court of Appeal in Harrison. With respect, however, I am unable to see how those principles were correctly applied in the case before him. The claimant had paralysis for which there was no physical diagnosis and there were "no neurological organic findings". Yet the Chief Commissioner set aside the tribunal decision because it found against the claimant on higher mobility, despite the seeming lack of any organic abnormality as central to the way in which the walking problems occurred.)

Application of the above principles

61. It is for a tribunal to make findings on whether there are current clinical abnormalities in the claimant's case and, if yes, whether any or all of them constitute, alone or in combination with other causes, an essential and significant link in the process which is limiting the claimant's walking. It is not for the Commissioner to make such findings.

62. The tribunal must be satisfied that a causal chain extends from the claimant's physical condition as a whole to sufficient limitations on her walking to qualify. The former must be a material cause of the latter. This will be for the good sense and judgment of the tribunal underpinned by adequate facts and reasons, and there may be substantial evidential difficulties for a claimant establishing their case on a balance of probabilities.

63. If a claimant's physical disability is minor, then it may be difficult to persuade a tribunal that illness behaviour or depression affecting her walking is the result of it rather than of her overall psychological makeup. If there is no appropriate temporal relationship between the development of a physical disability or the time a claimant first becomes aware of it and the onset of a psychological condition which affects walking, again the essential causal chain is unlikely to be established. It is up to the tribunal. The clinical abnormalities may be such that the matter is straightforward, irrespective of additional mental factors."

11. So far as CFS is concerned, medical opinion has now moved on. In CDLA/2822/1999, Mr Commissioner Jacobs points out that in 1996 a joint report was issued by the Royal Colleges of Physicians, Psychiatrists and General Practitioners, which recognised that the syndrome could not be classified as either physical or psychological, but consisted of a mixture of both; therefore, he concluded (a conclusion with which I agree) that a tribunal is now entitled to treat a claimant's CFS as involving a physical element capable of supporting an award of higher mobility, provided there is nothing to suggest that the claimant's mobility is wholly or largely limited by the mental component of the syndrome.
12. In CDLA/4486/2000, which gives support to the appellant's argument, Mr Commissioner Bano was also considering the appeal of a claimant with CFS. Relying on the 1996 joint report referred to by Mr Commissioner Jacobs in CDLA/2822/1999, the Commissioner held that a tribunal erred in excluding a diagnosis of CFS on the sole basis that there was no clinical pathology which explained the claimant's symptoms.
13. Commissioner Bano then continued as follows in paragraph 12 of his decision:-

"….I would echo and endorse the views of those Commissioners who have held that, in determining whether a disability is physical, regard must be had to the effect of a condition, rather than its cause. In CDLA/1020/1997 the Commissioner rejected a contention that, as a matter of principle, ME [an alternative term for CFS] is not a physical disability. Having held that the issue is one of fact in every case, the Commissioner continued:

"That such disablement must be the result of a genuine medical condition is beyond doubt: and of course as stated by the Commissioner in Case CSDLA/176/94 on which the adjudication officer relies, a tribunal must be satisfied on that issue and record findings and reasons and reasons (sic) to justify their conclusion on it. But for my part I find more helpful the guidance given by the Commissioner more recently in case CSDLA/265/97…In particular as he observes…the central issue in such cases is not so much whether the condition relied on is itself "physical in nature", but whether it produces physical consequences so far as the claimant's muscle movements are concerned, and whether those in turn cause pain or other difficulty.""

14. I am unable to agree with the propriety of the above approach. Unless a claimant has limitations on his mobility to the required degree, which is inevitably a physical manifestation, it never becomes necessary to address the question whether the restrictions result from a physical disablement. However, looking only at physical consequences renders this later stage otiose. I prefer the view of the Chief Commissioner in R(M) 2/78 that what counts is whether there is a physical factor present throughout in the causation of a claimant's inability or virtual inability to walk.
15. In R(M) 2/78, a Medical Appeal Tribunal held that the erratic behaviour of a boy which seriously impaired his mobility was directly due to the condition of Down's Syndrome which can be classified as a physical disorder because due to faulty genetic inheritance. The Secretary of State appealed to the Commissioner on the ground that physical disablement means disablement physical in nature and not disablement with a physical factor in its causation. However Chief Commissioner Temple disallowed the Secretary of State's appeal; the tribunal concluded that a physical factor was present throughout in the causation of the boy's inability to walk and it was not therefore wrong in law to hold that this amounted to the necessary physical disablement as responsible for the walking problems, albeit that there might also be a mental disablement in the case. The Chief Commissioner stressed (see paragraph 18) that it is for the tribunal to determine the weight to be attached to physical and mental disablement in cases where both factors may be present and to provide:-

"….the answer to the question whether the one or the other is, or both are responsible for an inability or virtual inability to walk….".

16. The present case is not one of CFS, as in CDLA/4486/2000, where there had hitherto been controversy amongst experts about its causation. It is acknowledged that the appellant has medical conditions which amount to physical disablement but she also suffers separately from depression. It is implicit in the tribunal's conclusions that it considered that the depression was the material cause both of her mobility and care problems. Had it not so concluded, there is indeed an inconsistency, as her representative states, in awarding her middle rate care component but not higher mobility. Given the EMP's clinical findings (for example, greater movement on informal observation than on formal testing and presence of normal callosities on the feet), then if there is any possible error in the tribunal's reasoning it is in a failure to address whether or not the claimant was exaggerating the extent of her inactivity. However, the point has not been taken by the Secretary of State and I do not consider it appropriate in all the circumstances to remit for a rehearing for express consideration of that issue. The tribunal had the advantage of seeing and hearing the appellant give evidence.

Summary

17. As I do not accept the suggested error of law on the appellant's behalf, my decision is as set out at paragraph 1 above.

(Signed)

L T PARKER

Commissioner

Date: 6 May 2004