Appeal Nos. EAT/1385/99
EAT/1487/99  

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	                  At the Tribunal
	On  9 April & 5 June 2001
Judgment delivered on 27 July 2001

Before
MR COMMISSIONER HOWELL QC
MR P A L PARKER CBE
MR G H WRIGHT MBE

EAT/1385/99
MR M RUGAMER	APPELLANT

SONY MUSIC ENTERTAINMENT UK LTD	RESPONDENT

______________________________________________________________________________
EAT/1487/99
MR DANIEL McNICOL                                                                                                APPELLANT

BALFOUR BEATTY RAIL MAINTENANCE LTD                                               RESPONDENT

Transcript of Proceedings

JUDGMENT

	
APPEARANCES

EAT/1385/99
For the Appellant	MR JOHN CAVANAGH
of Counsel
Instructed by
Messrs Hodge, Jones and Allen
Solicitors
31-39 Camden Road
London NW1 9LR	
For the Respondent	MR COLIN WYNTER
of Counsel
Instructed by
Messrs Lovells
Solicitors
65 Holborn Viaduct
London EC1A 2DY	

EAT/1487/99
For the Appellant	MR ROHAN PIRANI
of Counsel
Instructed by
Messrs Ellis Fermer and Negus
Solicitors
2 Devonshire Avenue
Beeston, Nottingham NGA 1BS	
For the Respondent	MR OLIVER CAMPBELL
of Counsel
Instructed by
Messrs Kennedys
Solicitors
14-20 Chiswell Street
London EC1Y 4TW	

MR COMMISSIONER HOWELL QC
Introduction: the shared issues
1.	These two appeals, which we heard consecutively, raised similar questions on the correct application of Section 1 Disability Discrimination Act 1995 (“physical or mental impairment”) to a state of affairs described medically as functional or psychological “overlay”: where a person claims to be suffering from physical injury, but the doctor is satisfied that his or her symptoms are not the manifestation of any organic physical pathology.  In everyday language, according to the medical evidence the person concerned is making it up, even if unconsciously: it is not true that there is something physically wrong with them as they claim or appear to believe, and the symptoms reported, however forcefully, are a manifestation only of that individual’s psychological state.  
2.	Each of these cases concerned an individual claiming to be a disabled person for the purposes of the 1995 Act, by reason of physical disablement.  In each case, the Applicant was found by the Tribunal not to be suffering from physical impairment at the relevant time, though the orthopaedic medical evidence suggested that he was or may have been in the psychological state described above.  In neither case had the Applicant at any stage claimed to be suffering from mental impairment, nor was there any psychiatric evidence establishing the presence of a diagnosed or diagnosable mental illness or disorder.  
3.	In those circumstances each Tribunal, after a full hearing, determined by way of preliminary issue that the Applicant was not suffering from physical impairment as he claimed. Each went on to add that it had not been established by evidence that he was suffering from mental impairment in terms of the Act either. Accordingly each complaint of disability discrimination was dismissed, on the ground that it had not been shown the applicant was a disabled person for the purpose of bringing proceedings in relation to the acts complained of.  
4.	On the appeals before us, each applicant sought to argue that the Tribunal so deciding his case had misdirected itself in failing to accept that his “overlay” amounted to physical impairment, because of the way he claimed it affected his movements and activities. Further or alternatively, although neither applicant had put forward his complaint on the basis of mental disability, it was suggested in the first appeal (and to some extent inferentially in the second) that the Tribunal had erred in determining that the applicant was not shown by the evidence to be suffering from mental impairment without at least addressing or inquiring into that possibility further, given the indications in the evidence about his psychological state.  
Additional issues
5.	In EAT/1385/99 Rugamer v Sony Music Entertainment UK Ltd an additional point was raised by the Notice of Appeal and argued pursuant to the directions given by the EAT on the preliminary hearing on 16 March 2000, on whether the Tribunal had erred in law in failing to consider that the earlier physical injury to which the Applicant’s psychological symptoms appeared to relate might entitle him to bring a claim in the alternative as a person who “has had a disability” within Section 2 of the 1995 Act.  A further point, raised by Mr Cavanagh in his argument before us on behalf of Mr Rugamer, was that the Tribunal had not given adequate reasons for their conclusion against him on the question of possible mental impairment; but that was not an issue raised in either the original or the amended Notice of Appeal, nor was it one of the three grounds of appeal directed for full hearing. In any event it appeared to us to add nothing of practical significance to the contention that the Tribunal’s decision as recorded in the statement of extended reasons failed to address the possibility of mental impairment adequately.  
6.	In EAT/1487/99 McNicol v Balfour Beatty Rail Maintenance Ltd there is a separate additional issue before us pursuant to the directions of the Appeal Tribunal given on the preliminary hearing on 10 March 2000: whether the Tribunal erred in law in taking account of certain video evidence which was produced by the Respondents only on the day of the hearing itself.  A further point initially raised in argument on behalf of Mr McNicol by Mr Pirani was that the Tribunal had wrongly focused on the date of the Tribunal hearing, as distinct from the time of the acts complained of, in determining whether the Applicant had a disability. However that was not a point raised in the Notice of Appeal or a ground directed for full hearing, and was not pursued. It was not in any case an argument of any significant value to Mr McNicol, since his case before the Tribunal had throughout been that he had a continuing physical disablement.  
The facts, and the Tribunal decisions
7.	The facts of the two cases can for present purposes be summarised as follows.  In Rugamer v Sony Music Entertainment Ltd, Mr Rugamer was employed by the respondents from 18 February 1991 to 16 September 1998, as a facilities engineer in their Whitfield Street recording studio.  The duties of this job included servicing and maintaining studio and mastering equipment, setting it up and dismantling it before and after recording sessions.  Mr Rugamer had long been anxious to transfer to being a “mastering engineer”, which is a more sophisticated and skilled job involving prolonged computer-based work and also artistic and personal interaction with the clients of the recording studio, with less manual work involved.  He had sought (and according to the respondents had been considered for) a transfer to this job a number of times, but other employees had been selected.  He was absent from work for prolonged periods in 1996, 1997 and 1998 on sickness grounds.  He attributed this to two incidents at work on 23 November 1991 and 9 September 1994 when he had been handling equipment in the studio and felt pain in his shoulder. Because of his prolonged sickness absence his employment was eventually terminated on 16 September 1998 on the ground of capability. 
8.	On 11 December 1998 Mr Rugamer presented a complaint to the Tribunal alleging unfair dismissal and disability discrimination.  The latter complaint was put in two ways: not being considered for three vacancies for mastering engineers, and being dismissed with effect from 16 September 1998.  The Respondents were said to have been in breach of the duty under Section 6 Disability Discrimination Act 1995  to make reasonable adjustments to enable him to continue in employment with them.  As his “Details of Complaint” made clear, the  “adjustment” he had in mind was a transfer to employment as a mastering engineer; and the basis of his claim to be a disabled person was that he had a continuing physical injury at all material times, which prevented him lifting and moving equipment as a facilities engineer.  
9.	The Respondents denied discrimination, and put in issue whether the Applicant was a disabled person for the purposes of Section 1(1) Disability Discrimination Act 1995 at all. On 9 June 1999 an interlocutory hearing was held, attended by solicitors for each side. On 18 June, the Tribunal issued written directions to the parties recording what had been agreed or decided:
“ … 2.   The Issues 
(1) Unfair dismissal.  The issues are what was the reason for dismissal, and if it was a reason relating to the Applicant’s capability, whether the dismissal was fair within the criteria set out in Section 98(4) of the Employment Rights Act 1996.
(2) Disability.  The issues are: 
(i) whether the Applicant had a disability within the meaning of the Disability Discrimination Act 1995 and the Guidance Notes;
(ii) whether the Respondent unlawfully discriminated against the Applicant by
(a) dismissing him contrary to Section 2(4)(2)(d) of the Disability Discrimination Act;
(b) by failing to redeploy him as a Mastering Engineer and/or make reasonable adjustments, contrary to Section 6 of the Disability Discrimination Act. …
3.  It was agreed and the Chairman directed that there shall be a preliminary hearing of the issue of whether the Applicant had a disability within the meaning of the Disability Discrimination Act and the Guidance Notes.
4.  Medical Reports.  It was agreed and the Chairman directed that the Applicant shall produce to the Respondent his expert’s report as to his disability.  It was further agreed that in the meanwhile the parties shall arrange for the Respondent’s consultant to examine the Applicant and produce a report   …”
10.	The full Employment Tribunal at London North sat on 2 July 1999 to determine that preliminary issue. It held the Applicant did not have a disability within the meaning of the expression in Section 1 of the 1995 Act.  The appeal to us is against that decision. The tribunal’s statement of extended reasons sent to the parties on 17 August 1999, at pages 15-18 of the appeal file before us, records that:
“1.  This is a preliminary hearing to consider whether the Applicant has a disability within the meaning of the Disability Discrimination Act and the guidance notes.  The Applicant gave evidence as to the nature of the injuries from which he suffered which are detailed in the report of Dr Phelan who gave evidence on behalf of the Respondents ……….
2.     Dr Phelan is a Consulting Physician in Orthopaedic sports medicine and psychosomatic medicine.  He prepared a very lengthy report on the condition of the Applicant whom he saw for most of the day on which the examination was conducted.  He also considered a number of reports which the Applicant had obtained from orthopaedic surgeons and osteopaths who had been consulted by the Applicant as to his condition which stemmed from an accident which the Applicant had sustained at work in 1991 exacerbated by a further injury in 1994.  Dr Phelan goes at great length in his report into the Applicant’s condition.  It is not disputed that the Applicant suffered a work related injury which gave rise to symptoms on his right side generally extending down the right arm to the base of his spine and down the right leg.  Dr Phelan then went on to describe the history of the Applicant’s complaints and the complaints which he suffered at the present time including continuous and intermittent pains which had an effect on the Applicant’s day-to-day activities.  Dr Phelan records a certain unusual effect which he found during his physical examination and concluded his report by saying that there seemed to be nothing objective organically which would explain the Applicant’s condition.  The Applicant was clearly expressing psychological turmoil throughout his skeletal system and was psychologically very disturbed.  Dr Phelan rejected the report of Mr Constandinou an Osteopath.  He also arranged for a scan to be taken of the Applicant’s cervical spine and came to the conclusion that the psychological factors were the most important.
3     We do not think that we need to comment in detail on the evidence which the Applicant gave.  He gave in our view a fair and true history of what he says he is suffering from.  The question which we have to answer is whether this amounts to his suffering from a disability as that expression is defined in the Disability Discrimination Act 1995.  Mr Wynter in his closing submission submitted that we had to consider separately a question of the physical injury from which the Applicant undoubtedly did suffer at some time and the psychological effects which this might have caused.  He submitted that this was the conclusion which should be made from Dr Phelan’s report and the evidence which he gave namely that the matter was now a question not of a physical injury sustained by the Applicant but of a psychological overlay.  He also referred us to the First Schedule of the Disability Discrimination Act and the definition therein of mental impairment pointing out that the words in paragraph 1(1) of the First Schedule were:-
“Mental impairment includes an impairment resulting from or consisting of a mental illness only if the illness is a clinically well recognised illness.”
4.    Our conclusions on this matter are as follows.  Our finding is that Dr Phelan’s evidence and his report show that the Applicant did in the past suffer from some physical injury but that all his present symptoms are due to a psychological state which has been caused by the physical injury.  Our finding in the report is that the Applicant did suffer two physical injuries, as set out in Dr Phelan’s report that the physical effects of those injuries are no longer present and that it cannot be said that the Applicant is at the present time suffering from any impairment or disability caused by his physical condition.  Our finding is that it is caused by a psychological condition which has arisen because of his physical injury.  We therefore find that we have to consider the Applicant as suffering from a mental impairment.  We therefore have to have regard to the First Schedule and the definition of mental impairment which we set out above and the fact that the illness has to be a clinically well recognised illness.  We have referred also to paragraph 5 of Annex 1 to the Code of Practice.  This does no more than add a gloss to the Schedule’s definition by saying that it is one recognised by a respected body of medical opinion.  It may be this sort of condition could be said to be a clinically well recognised illness.  We heard no evidence at all to show that it was a clinically well recognised illness…….
No evidence was given which would show that this is a clinically well recognised illness.  In the circumstances therefore we cannot find that the Applicant suffers from a disability as that expression is defined in the Disability Discrimination Act or in the Schedules.  Consequently we reject the Applicant’s claim of disability discrimination and that part of the claim which he brings before the Tribunals must be rejected.”

11.	In McNicol v Balfour Beatty Rail Maintenance Ltd, the appellant had been employed from September 1992 as a trackman on the railway.  On 23 October 1995, while in the course of his employment, he was riding as a passenger in a vehicle and was hurt when it drove over a pothole, causing him to be jolted upwards to the roof.  From then on he was off work, reporting a continuing injury to his neck and spine.  For a prolonged period he and the respondents disagreed on what, if any, work he could return to.  Finally on 9 October 1998 he presented a complaint of disability discrimination, alleging that:
“2.  As a result of an accident at work on 23/10/95 I suffered a compression injury to my spine which has left me quite severely disabled. 
 …
6. On 8th October 1993 I was refused the right to work.  I believe that my employers have 
(A)  Discriminated against me because of my disability
(B) Failed to make any or any reasonable adjustments to my employment arrangements to ensure that I was not substantially disadvantaged.”
12.	In this case too the Respondents put in issue whether the Applicant was disabled as defined in the Disability Discrimination Act 1995 at all, though at the same time denying that he had been refused the right to work and asserting that they had in fact made efforts to find some way he could return.  Again a preliminary issue was directed, by notice to the parties dated 24 August 1999, on “whether the applicant is a disabled person as defined by Section 1 of and Schedule 1 to the Disability Discrimination Act 1995 and, in consequence, whether he/she is entitled to bring these proceedings”.  
13.	Some months before that the matter had already come before a Chairman at a substantial interlocutory hearing on 13 January 1999, of an application by the Respondents for a stay of the proceedings until Mr McNicol submitted himself for a further medical report on their behalf.  That application arose out of doubts cast in some of the (numerous) medical reports already obtained by both sides, on whether he was in truth still suffering any physical injury as he claimed.  
14.	In particular, his own GP had referred in early 1996 to some findings as “very bizarre”; a Consultant Orthopaedic Surgeon to whom he was referred by his own solicitors in connection with a separate personal injury claim had said on 23 June 1997 “I cannot equate his present situation with his neck and back with the initial problems that he presented to his general practitioner in October 1995”;  MRI scans in 1998 had failed to demonstrate any underlying lesion to his spine which could explain the symptoms he complained of; and in a further report a consultant spinal surgeon, Mr Khazim, who also examined the applicant in 1998 had said:
“….I cannot explain the unusual symptoms demonstrated by Mr McNicol, especially regarding both shoulders and the inability for him to move his shoulders up, as resulting from the injury sustained on 23 October 1995.
The residual symptoms after about 6 months after the injury cannot be explained on the basis of an organic pathology.  I believe that the persistent residual symptoms beyond that time are related to a non-organic pathology, for example in the form of abnormal illness behaviour. …..
…..I believe that it is likely that he has sustained a lumbar muscle/ligamentous/soft tissue strain to the low back which would have resulted in significant symptoms in the low back or back pain and stiffness lasting for about 6 months up to a maximum of about one year.  I cannot explain his present continuous symptoms after that time on the basis of organic pathology.  
I do not believe that the injury sustained on 23 October 1995 has resulted in bony injury or significant ligamentous injury to result in subluxation or dislocation of the spine.  I do not believe that as a result of the injury sustained on 23 October 1995 he had, or will have, any exacerbation of the degenerative process in his cervical or lumbar spine.”
adding in a covering letter:
“Please note that I feel that a psychiatric or clinical psychologist’s opinion is indicated in this case.”
15.	After reviewing this and all the medical evidence available up to January 1999 in detail the Chairman determined that the proceedings should be stayed until the Applicant submitted himself for further medical examination of his physical state, probably by the same consultant spinal surgeon.  As his Extended Reasons sent to the parties on 8 March 1999 explained:
“It does not seem to me to be in the interests of justice to proceed with litigation which is based on the existence of a disabling physical impairment when the available evidence clearly calls into question the existence of both the impairment and the disabling symptoms said to have been experienced, but does not resolve it even on the balance of probabilities one way or the other.”
His statement of reasons also recorded in extremely clear terms that the sole basis on which a claim of discrimination was being pursued by the Applicant was as a person disabled by continuing physical injury so that no issue of mental disability was raised:
“8… I also note that Mr McNicol’s case is pleaded firmly on the basis of a physical injury to the spine.  As far as I am aware, his claim for damages for personal injury is also pleaded firmly on the basis of physical injury.  I say that because it is possible for a person to be disabled by physical symptoms which stem not from physical injury but from psychological injury following a trauma.  Those symptoms may mimic accurately the symptoms that would arise from physical injury.  Equally, they may be bizarre and random indicating an absence of physical injury.  But no such psychological injury is alleged in either these proceedings or the personal injury proceedings.  I am not clear whether the Respondent has it in mind that Mr McNicol should submit himself to the kind of further investigation that Mr Khazim suggested, but if they are I am not prepared to require Mr McNichol to do so as the point does not seem to arise.”
16.	That appears to us a wholly correct assessment of the nature of the complaint being made, and one which was never questioned by the Applicant or on his behalf.  If he, or those acting for him, had after that wished his claim to be considered in the alternative by the Tribunal on the basis that he was a mentally disabled rather than a physically disabled person the clearest of indications, and an application to the Tribunal for further directions to be given about evidence to deal with that fresh issue, would have been essential.  
17.	At the interlocutory hearing on 13 January 1999, Mr McNicol had been representing himself.  When on 30 September 1999 the matter finally came before the full Tribunal for the hearing of the preliminary issue as to his disability he was represented by a Mr Turner; recorded as a “friend” but in fact, we were told, a person who had been acting for Mr McNicol in a professional representative or consultant capacity for some time before the hearing, conducting correspondence on his behalf with the Respondents or their solicitors, and describing himself in his letter headings as an “advocate”.  
18.	 Some time before then the stay on the proceedings had been lifted, as Mr McNicol had submitted himself to a further medical examination by Mr Khazim on 23 June 1999. Mr Khazim’s further report dated 30 June 1999 was in evidence before the Tribunal and was produced to us.  It reiterated the conclusion of the previous one that there was no physical basis for the continuing symptoms of injury from which Mr McNicol presented himself as suffering, making it clear that Mr Khazim had limited himself to the question of “physical impairment” on the basis of his understanding that
 “no psychological injury is alleged in this case and Mr McNicol’s case is pleaded firmly on the basis of physical injury”; 
adding however that the symptoms presented could only be the result either of psychological factors which caused them to be produced on a subconscious basis, or of conscious production or exaggeration of his symptoms by Mr McNicol himself.  
19.	The only further medical evidence produced on behalf of Mr McNicol was given to the Tribunal orally by a Mr Latham, described as a disability employment adviser. No application was made, or indication given to the Tribunal, on Mr McNicol’s behalf to put forward any alternative claim on the basis of mental impairment.  
20.	Before the start of the Tribunal hearing, the Respondents indicated that they wished to put in evidence before the Tribunal, as relevant to the question of whether the Applicant was really suffering the continuing physical disability he claimed, a video of him taken on their behalf the previous day, in the street outside his own home.  The existence of this video had not been disclosed to Mr McNicol at the time it was being taken; it was only disclosed at the Tribunal the following day, though that in itself involved no breach of any direction or rule of procedure of the tribunal as no order for discovery of documents or for prior disclosure of evidence other than medical evidence had been made. 
21.	It was the recollection of Mr Campbell, who appeared as Counsel for the Respondents at the Tribunal hearing as well as on the appeal before us, that he personally had informed Mr McNicol and Mr Turner of the video before the Tribunal proceedings were due to begin; and had also informed the Chairman at the start of the hearing that it existed and the Respondents would be seeking to rely on it.  At that stage however Mr Campbell himself had not seen the contents of the video; in fact neither he, nor Mr McNicol or Mr Turner or anyone else was then able to do so, since it turned out that the Tribunal’s video machine was not working and another had to be sent for.  In those circumstances it was decided, without objection from anybody, that the hearing should commence: and it did so, with oral evidence being taken from Mr McNicol.  Later in the morning when a working machine had been obtained the parties, their representatives and the members of the Tribunal all viewed the contents of the video together. Again there was no objection to this as a matter of procedure.  Mr Campbell’s recollection, which again we accept, was that the viewing took place in the late morning before the lunch adjournment, while the Applicant’s evidence was still being given: so that before the conclusion of his own evidence he had the opportunity, which he took, to give the Tribunal as part of his own case his comments and explanations about what was shown on the video.  It is further common ground that (a) the video was not strictly proved in evidence by calling as a witness the person who had taken it; (b) no objection was at any stage raised by or on behalf of Mr McNicol to the video being seen by the Tribunal and its contents being taken into account, in conjunction with the comments he made about them; (c) no application was at any stage made for an adjournment, or for an opportunity for Mr McNicol and Mr Turner to examine the video privately before it was seen by the Tribunal or allowed in evidence; and (d) at no stage did the Tribunal suggest such an adjournment or opportunity.  
22.	The unanimous decision of the Tribunal was that the Applicant was not a disabled person for the purposes of the Disability Discrimination Act so his application was dismissed.  The Extended Reasons sent to the parties on 27 October 1999 and set out at pages 9 - 15 of the appeal file before us record that on the preliminary issue the tribunal had heard oral evidence from the Applicant and from Mr Latham, and evidence from Mr Khazim for the Respondent.  After recording the Applicant’s own evidence given to the Tribunal, which had included saying that he was at all times quite incapable of doing, even for a short time, household functions such as the washing up, ironing or hoovering, because that caused severe problems to his back, they referred to the video evidence as follows:
“4     The respondents had made a secret video of the applicant, which was shown to us and which the applicant accepted was of him.  It was taken the day before our hearing.  The video showed the applicant walking down the street without any apparent problem, putting his child into the back of his car and for that purpose leaning into the back of the car for a significant period of time, getting into the car to drive it away quite normally and leaning to the right in order to hold his child’s hand.  The applicant told us that that was one of his good days when he was able to do that.”
23.	On the further examination and report by Mr Khazim in June 1999 they recorded:
“5 … On that occasion the applicant had told Mr Khazim that he had severe episodes of neck pain, at least once a week (which is contrary to the evidence he gave to us), he also referred to low back pain, which was worse than when Mr Khazim had seen him the year before, and that his back pain also became worse usually about twice a day.  Mr Khazim reported that the assessment was difficult because the applicant was reluctant to answer questions.  The examination performed by Mr Khazim showed no evidence of any physical injury to his neck or back.  X-rays and an MRI scan showed some slight degree of degeneration at the G5/6 level (which is the middle of the neck) but Mr Khazim confirmed to us that this was of mild appearance, similar to about 40% of the population of the applicant’s age and of whom the vast majority have no problems of any significance.  The applicant had filled out a disability questionnaire giving his own assessment of pain and his difficulties, which indicated that he was severely disabled.  Mr Khazim confirmed that it is well-known that neck and back-related symptoms can be as a result of non-physical organic pathology.  Psychological damage would be referred to as being a functional overlay and a number of points could contribute to that.  In the case of the applicant the factors which might point to that are the fact that he had been off work for a long time and particularly of the medico-legal proceedings, including his personal injury claim and the Tribunal claim.  
6.  Mr Khazim made a number of comments about the examination of the applicant and in particular that the applicant had alleged pain over most of his back and shoulders and down to his feet.  That was not consistent with a back or neck injury of the kind he claimed. …. Although Mr Khazim told us that the type of injury described by the applicant being a compression injury could have caused an exacerbation of pre-existing neck symptoms of the mild degenerative type seen in the applicant, those would not have lasted for more than six months and that any low back-related symptoms would have lasted for a similar time up to a maximum of one year.  Any symptoms longer than that could not be explained on the basis of any organic physical pathology.  
7.  Mr Khazim accepted that the applicant’s problems could be a functional overlay, but he confirmed that he was not qualified to say whether that was the case or whether the applicant was fabricating his symptoms.”

24.	They concluded that the evidence of Mr Latham did not assist them, because he agreed that for his purposes he accepted what the Applicant had told him of the disability at face value and that it was not part of his function to investigate whether there was indeed a disability.  
25.	The Tribunal then recorded that in Mr Campbell’s submissions on behalf of the Respondent he again pointed out that the Applicant’s claim had specifically been put as being one of a physical impairment only, as was clear both from the Originating Application and in the earlier Tribunal Decision.  That appears to have been concurred in by Mr Turner, who
“10. …  submitted that functional overlay was well-documented and is not a mental impairment, but is a physical mechanism, because it causes physical pain.  He submitted that the evidence showed that the applicant had suffered a severe compression injury at the time of his accident, which has caused him long-term, serious, physical impairment.”
26.	The Tribunal’s conclusion, on what thus appears to have been accepted on all sides as the single issue before them, was as follows:
“11.  We reminded ourselves that like all disability discrimination claims the onus is on the applicant to satisfy us of his claim.  In addition, the issue we have to determine is the issue put forward by the applicant.  It is clear from the originating application in this case that the applicant has throughout alleged that he had a physical impairment.  Even if that had not been the case, and we appreciate the fact that he is not represented by a legally qualified representative, the previous hearing of this Tribunal made it crystal clear that the application was brought as one of physical impairment and not mental impairment.  Accordingly, the only issue we have to determine is whether the applicant has satisfied us that he suffered from a physical impairment within the Disability Discrimination Act definition.  We have no hesitation in accepting the evidence of Mr Khazim in every respect.  We accept that whilst the applicant has mild degenerative change in his spine, that would not account for the symptoms claimed by the applicant and that he has no physical impairment of any significance, which would result in symptoms of the kind he has outlined to us.  As the applicant has failed to satisfy us that he has a physical impairment, he has failed to show that he is a disabled person within the Act and his application must fail.  
12.  We have gone on to consider the question of the allegation of functional overlay.  It is of course quite possible for a person to suffer pain which has no physical cause.  We do not accept the submission of Mr Turner that a mental condition, which causes pain, is by reason of that a physical impairment.  The pain is merely a symptom of the mental condition.”
27.	However they then went on to add two further conclusions, or comments, on the evidence that had been put before them, as follows:
“12 … Although it is not part of the applicant’s pleaded case that he suffers from a mental condition, he has failed to satisfy us that he does suffer from a mental impairment.  He has put no evidence before us to show there is any functional overlay nor of any clinically well-recognised mental illness which applies to him.  We have heard no evidence from anyone qualified to answer that point.  If Mr Khazim who is a doctor, but does not specialise in mental issues, is unable to determine whether the applicant’s alleged problems arise from a mental impairment or are fabricated, we as lay people are even less able to make that finding.  Accordingly, the applicant has failed on the balance of probabilities to show us that he is suffering or has suffered from a clinically well-recognised mental illness.  
13.  Finally, we feel it is right that we should comment on evidence given by the applicant, because the onus is upon him to satisfy us that he has suffered from substantial long-term adverse effects on his ability to carry out his normal day-to-day activities.  On a balance of probabilities he has not satisfied us on that issue.  There are a number of points within the applicant’s evidence where we have doubts as to his credibility.  In particular, having seen the video, it is entirely inconsistent with the allegations of disability he has made to Mr Khazim, all the other doctors and the Tribunal itself.  There was nothing on that video to suggest a person who had any significant difficulty with his back or neck.  We particularly noted the fact that he seemed to have no problem in leaning into the back of his car for several seconds and no problem getting into the driving seat of the car.  He was able to walk quickly down the street in a normal way without any apparent difficulty.  All of that is inconsistent with his allegations.”
And after some further examples of inconsistencies between the evidence and the symptoms alleged by the Applicant, the Tribunal stated that he had failed to show them that he was a disabled person within the Act, and accordingly his application failed.  
The law
28.	The provisions of the Disability Discrimination Act 1995 which these two Tribunals were required to apply in determining, on the complaints and evidence put before them, the preliminary issue of whether the Applicant was a disabled person or not, are as follows.  
By Section 1,
“1 - (1) Subject to the provisions of Schedule 1, a person has a disability for the purposes of this Act if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities. 
(2) In this Act “disabled person” means a person who has a disability.”
By Section 2,
“2 - (1) The provisions of this Part and Parts II and III apply in relation to a person who has had a disability as they apply in relation to a person who has that disability.
(2) Those provisions are subject to the modifications made by Schedule 2”
By Section 3,
“3 - (1) The Secretary of State may issue guidance about the matters to be taken into account in determining -
(a) whether an impairment has a substantial adverse effect on a person’s ability to carry out normal day to day activities; or
(b) whether such an impairment has a long-term effect……
(3) A tribunal or court determining, for any purpose of this Act, whether an impairment has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities shall take into account any guidance which appears to it to be relevant.”
By Section 4(2),
“4 - (2) It is unlawful for an employer to discriminate against a disabled person whom he employs -
(a) in the terms of employment which he affords him;
(b) in the opportunities which he affords him for promotion, a transfer, training or receiving any other benefit;
(c) by refusing to afford him, or deliberately not affording him, any such opportunity; or
(d) by dismissing him, or subjecting him to any other detriment.”

Section 6 places on an employer a duty to make adjustments of various kinds, to the extent reasonable in all the circumstances of the case, to prevent arrangements or physical features placing the disabled person concerned at a substantial disadvantage in comparison with other persons who are not disabled.  
By section 68(1) it is provided that:
“mental impairment” does not have the same meaning as in the Mental Health Act 1983 or the Mental Health (Scotland) Act 1984 but the fact that an impairment would be a mental impairment for the purposes of either of those Acts does not prevent it from being a mental impairment for the purposes of this Act:”
By Schedule 1 paragraph 1:
“1 - (1) “Mental impairment” includes an impairment resulting from or consisting of a mental illness only if the illness is a clinically well recognised illness.  
(2)  Regulations may make provision, for the purposes of this Act -
(a) for conditions of a prescribed description to be treated as amounting to impairments;
(b) for conditions of a prescribed description to be treated as not amounting to impairments.
(3) Regulations made under sub-paragraph (2) may make provision as to the meaning of “condition” for the purposes of those regulations.”
29.	As is apparent from that paragraph of the Schedule, an “impairment” for the purposes of the Act may thus include medical “conditions” of various kinds; though as is also clear from paragraph 3 for example, the expression may include some damage or defect not itself a clinically treatable medical condition such as a disfigurement.  By paragraph 4, an impairment is to be taken to affect the ability of the person concerned to carry out normal day-to-day activities only if it affects one of a specified list of basic activities such as mobility, manual dexterity, continence, memory or ability to concentrate, and so forth.  
30.	By the Disability Discrimination (Meaning of Disability) Regulations 1996 SI No 1455, certain addictions, and certain specified conditions such as tendencies to set fires, steal, or physical or sexual abuse of other persons, are to be treated as not amounting to “impairments”.  
31.	Finally the published guidance to be taken into account under Section 3, while strictly limited by that section to matters to be taken into account in assessing the effects of any impairment rather than identifying the impairment itself, gives some inferential help on that initial question in paragraphs 10-15:
“Impairment 
10  The definition requires that the effects which the person may experience arise from a physical or mental impairment.  In many cases there will be no dispute whether a person has an impairment.  Any disagreement is more likely to be about whether the effects of the impairment are sufficient to fall within the definition.  Even so, it may sometimes be necessary to decide whether a person has an impairment so as to be able to deal with the issues about its effects.  
11.  It is not necessary to consider how an impairment was caused, even if the cause is a consequence of a condition which is excluded.   For example, liver disease as a result of alcohol dependency would count as an impairment.
12.  Physical or mental impairment includes sensory impairments, such as those affecting sight or hearing.
13. Mental impairment includes a wide range of impairments relating to mental functioning, including what are often known as learning disabilities (formerly known as “mental handicap”).  However the Act states that it does not include any impairment resulting from or consisting of a mental illness unless that illness is a clinically well-recognised illness (Sch 1, para 1).
14. A clinically well-recognised illness is a mental illness which is recognised by a respected body of medical opinion.  It is very likely that this would include those specifically mentioned in publications such as the World Health Organisation’s International Classification of Diseases.
15.	The Act states that mental impairment does not have the special meaning used in the Mental Health Act 1983 or the Mental Health (Scotland) Act 1984, although this does not preclude a mental impairment within the meaning of that legislation from coming within the definition in the Disability Discrimination Act (s 68).”

32.	That the identification of an “impairment” for the purposes of the Act is a different thing from the causes that give rise to its being present, and also from its effects in terms of the limitations it places on a person’s functions and ability to carry out activities, is apparent not only from the structure of the legislation as above outlined and the summary in that guidance document, but also from the principal case in which the working of the Act has so far been considered by the Appeal Tribunal:  Goodwin v Patent Office [1999] ICR 302.  There, Morison J giving the judgment of the Appeal Tribunal summarised the elements which may need to be considered in relation to the definition of disability at page 308 A-D as follows:
“Section 1(1) defines the circumstances in which a person has a disability within the meaning of the Act.  The words of the section require a Tribunal to look at the evidence by reference to four different conditions.  (1) The impairment condition.  Does the applicant have an impairment which is either mental or physical?  (2) The adverse effect condition.  Does the impairment affect the applicant’s ability to carry out normal day-to-day activities in one of the respects set out in paragraph 4(1) of Schedule 1 to the Act, and does it have an adverse effect?  (3) The substantial condition.  Is the adverse effect (upon the applicant’s ability) substantial?   (4) The long term condition.  Is the adverse effect (upon the applicant’s ability) long term?
Frequently, there will be a complete overlap between conditions (3) and (4) but it will be as well to bear all four of them in mind.  Tribunals may find it helpful to address each of the questions but at the same time be aware of the risk that disaggregation should not take one’s eye off the whole picture.”
33.	We respectfully agree; we would add only that in the context of the two appeals before us no criticism has been levelled at either Tribunal for the decision to address question (1), the impairment condition, as a separate preliminary issue in advance of the others; and while that will not be a sensible procedure to adopt in every case, we think each Tribunal was justified in doing so here.  To the correct approach to that condition we now turn.
Physical or mental  impairment
34.	“Impairment”, for this purpose and in this context, has in our judgment to mean some damage, defect, disorder or disease compared with a person having a full set of physical and mental equipment in normal condition.  The phrase “physical or mental impairment” refers to a person having (in everyday language) something wrong with them physically, or something wrong with them mentally.  Given the apparent intention that the question of the presence of an “impairment” is to be differentiated both from its cause, and from its effects in terms of a person’s functionality, the difficult dividing line between physical and mental impairment has in our judgment to depend not on whether a physical or mental function or activity is affected (a physical impairment may affect mental activities as well as physical ones, and vice versa) but rather on whether the nature of the impairment itself is physical, or mental. 
35.	That is a necessary question to be asked and answered in terms of the legislation, since only if the claimed impairment is established as physical does the inquiry move on immediately to the second and succeeding questions of the assessment of its effects. If a physical impairment cannot be established and a person’s mental state has to be relied on as the impairment giving rise to disability, then paragraph 1 of Schedule 1 requires the further test of a “clinically well recognised” illness to be applied before condition (1) can be said to have been met.  
36.	A similar difficult dividing line between mental and physical disablement has long existed in the context of certain mobility and disability benefits, and is already the subject of substantial authority addressing in particular the relevance of psychological conditions or overlays where a physical disablement is claimed. Although caution must always be exercised in importing thinking from one specialised area of the law and statutory context to another, we find two of those authorities of assistance in illustrating the points of principle before us.  
37.	The first is a passage from the decision of Mr R S Lazarus QC sitting as a National Insurance Commissioner, given on 14 August 1975 in reported case R(I) 13/75 on an appeal from a Medical Appeal Tribunal in which he recorded and accepted, in terms which have always afterwards been accepted as authoritative, the expert evidence of the Principal Medical Officer of the then Department of Health and Social Security on the medical use of the term “functional overlay”:
“12.  … I was myself in doubt in what sense the tribunal used the expression “functional overlay”. Accordingly, I requested a technical explanation by one of the Department’s medical officers of the meaning of the phrase. Dr. Wright wrote a report in response to this request, and also gave evidence at the oral hearing supplementing his report. …
14.	In his written statement, Dr. Wright distinguished between the three states of mind (a) hysteria, (b) malingering and (c) “functional, nervous or psychiatric overlay”.
(a)	He described hysteria as a well recognised mental state in which symptoms of disability are represented by an individual for the sake of some advantage without him being conscious of the motive, and stated that a mental abnormality is present before the injury and would be assessable as disabling if it could be recognised.
(b)	Malingering Dr. Wright described as a deliberate and conscious simulation of illness or disability for the sake of advantage, but stated that true malingering is very rare especially in the field of industrial accidents.
(c)	On the other hand he stated that some degree of exaggeration of existing symptoms is extremely common and although it may be difficult to determine how much of the exaggeration is conscious it may be clear that there is no definable mental condition present which gives rise to it. “This inexact state of affairs”, he wrote, “is usually described as a functional overlay or, less commonly, a psychiatric or nervous overlay and these terms are generally understood in the medical profession to mean an exaggeration of symptoms over and above the level which seems to be reasonable after careful study of the clinical picture and the results of radiological and other appropriate investigations . . . The condition described is entirely subjective and is a manifestation of constitutional mental make-up not related to any injury industrial or otherwise.” …
15.	In his oral statement at the hearing of this appeal, Dr. Wright said that “functional overlay” is an inexact term (he called it “pseudo-scientific”), that the term is used in a very indefinite area of medicine in which one doctor may disagree with another, and that there is no general consensus amongst psychiatrists about the phenomena intended to be described by it. He distinguished hysteria from functional overlay on the grounds that hysteria does not, whereas functional overlay does, involve the exaggeration of symptoms; and that hysteria is, whereas functional overlay is not, a proper psychiatric condition.
16.	I need hardly say that I accept Dr. Wright’s analysis of the meaning attached to the term “functional overlay” by members of the medical profession; although I venture to suggest that on occasions some of them use it in other senses. ….”

38.	We interpose that we understand the “other senses” referred to by Mr Lazarus to include cases where the doctor giving a report is unwilling to pronounce on whether the exaggerated symptoms presented are genuine or not: and the condition at that time referred to as “hysteria” (in its strict medical sense, not merely the lay sense of an over-emotional state) is now more commonly identified as a “conversion disorder” of a specific type.
39.	The second authority is the decision of the Court of Appeal of 12 May 1987 in reported case R(M) 1/88 Harrison v Secretary of State for Social Services.  This was  an appeal from Mr Commissioner Monroe who had rejected a contention that a Medical Appeal Tribunal had misdirected themselves in law in holding that the appellant, who was unable to walk by reason of diagnosed “hysteria”, did not meet the relevant statutory conditions for benefit for persons unable or virtually unable to walk by reason of physical disablement.  O’Connor LJ, with whom the other members of the Court of Appeal agreed, quoted with approval the Commissioner’s observations that:
“Title to mobility allowance … depends on a claimant’s physical condition; this may be contrasted with say the attendance allowance which … may be awarded in respect of either physical or mental disablement.  It may be that in the last analysis all mental disablement can be ascribed to physical causes.  But, if so, it is obvious that the Act on drawing the distinction between physical and mental disablement did not mean this last analysis to be resorted to ….”
He then went on to approve and confirm the conclusion that if the medical authorities had found in the particular case that the claimant’s hysteria was not a manifestation of his physical condition as a whole, it would be impossible to disturb their decision in law on the ground that they ought to have found him to be physically disabled.  O’Connor LJ continued:
“For my part I agree with the approach which the learned Commissioner made to this problem.  It seems to me that he directed himself on the facts of this case entirely correctly … [Counsel for the Appellant]  who has put his argument very effectively, has submitted that here is a man who is in a wheelchair.  If one asks oneself, “Is that a physical disability?” he says the answer would be, “Yes.  He has got a disability that he cannot walk”.  “Is walking a physical activity?” “Yes, it is.”  “Is he unable to walk as a result of a physical disability?”  He submits that the answer should be “Yes”, no matter what the underlying reason of his inability to move his legs may be.  
In my judgment that is not the correct interpretation of the words of the statute.  Section 37A, as I have already said, requires that the person should be suffering from “physical disablement” such that he is either unable or virtually unable to walk.  The inability to walk is not itself a physical disablement.  There must be some physical disablement such that he is unable to walk.  In the present case on the evidence before them the Medical Board and the Medical Appeal Tribunal held that this man was not suffering from any physical disablement; he was suffering from a functional disablement.  That was a matter which was entirely for them, and neither the Commissioner nor this court can possibly interfere with the findings.”
In his concurring judgment Stocker LJ added:
“Hysteria is not itself a physical condition, since physical and hysterical conditions are often used as contrasting terms, and in my view correctly so.”
40.	The distinction there drawn and approved by the Court of Appeal between a “physical disablement” which is a manifestation of a person’s physical condition, and a “functional disablement” which is not, even though it may have the effect that they are unable to carry out physical activities, is in our judgment of direct assistance in considering the line between physical and mental impairments which we have to attempt to draw in this case.  
41.	Consistently with that approach, it seems to us that neither of the Tribunals in the two present appeals can be shown to have erred in law in declining to accept, on the evidence as presented to them, that the “overlay” which appeared to be the only explanation for the restriction of the appellants’ activities amounted to “physical impairment” within the meaning of the Disability Discrimination Act 1995.  In each case there was evidence before the Tribunal making it proper to conclude, as they did, that whatever “impairment” or restriction the applicant might be said to suffer was not physical but a manifestation of his psychological make-up; and on that basis no physical impairment had been established.  
Consideration of mental impairment
42.	As indicated above each Tribunal, having determined against the Applicant the only basis on which he had sought to assert a claim that he was a disabled person, then in fact went on to give consideration to whether the evidence placed before it on that issue provided an affirmative answer to the impairment condition by the alternative route of a mental impairment; and concluded that it had not been so established, since the evidence did not show with sufficient clarity the condition as to a “clinically well recognised illness” to have been met.  
43.	In each case, in our judgment, that conclusion was incontrovertible on the evidence before the Tribunal, since in neither case was there any clear evidence that the Applicant was suffering from some recognised psychiatric illness or disorder.  We reject the suggestion that, in the absence of any evidence to that effect, it could be an error of law on the part of the Tribunal to fail to identify or “diagnose” such a condition for itself on the basis of general observations in orthopaedic reports; even fairly strong observations, such as made in Dr Phelan’s report in the first case suggesting that the Applicant must be psychologically disturbed in some way.  
44.	We do not for our part find the rather negative terms of the definition (or rather, non-definition) of “mental impairment” in Section 68(1) of the 1995 Act anything like as helpful as might have been wished in this difficult area; and both it and paragraph 1(1) of Schedule 1 leave it quite unnecessarily unclear whether the extra condition for “mental impairment” is meant to be applied to all conditions, disorders or states relied on as constituting mental impairment, or only to those properly referred to medically as “illnesses”.  For the difference between a “mental illness” and mental disorder which may encompass a rather wider range of conditions, cf. W v L [1974] QB 711; the definitions of “mental disorder” and “mental impairment” in s.1(2) Mental Health Act 1983; and the reference to learning disabilities in the guidance notes quoted in paragraph 31 above.  
45.	In our judgment, adopting the purposive approach indicated, rightly in our view, by the Appeal Tribunal in the judgment in Goodwin v Patent Office at page 307 D-F, the expressions “illness” and “impairment” in this context are each to be construed relatively broadly, and  include such cases of recognised mental disorder as, for example, developmental disorders of the brain or congenital deficit or “handicap”, even if not giving rise to a clinically treatable condition or a focus of clinical attention in the medical sense.  Whether all the types of disorder nowadays found described or referred to in psychiatric manuals including the various social, behavioural and personality disorders not considered as “clinical” also fall within the statutory intendment of “impairment” for this purpose is not necessary to determine for the purposes of this decision.  What is we think clear is the converse: that short of satisfactory medical evidence of a diagnosed or diagnosable clinical condition or other mental disorder of a recognised type, evidence simply of a restriction on a person’s level of function or activity accompanied by a general suggestion that this is (or may be) a manifestation of some psychological state will not meet the statutory threshold for establishing mental impairment.  In neither of the present cases was there any attempt to produce evidence to demonstrate the presence of any identified condition meeting the very specific diagnostic criteria for generally recognised mental disorders in either the World Health Organisation’s International Classification of Diseases 1996      (ICD-10) or the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders 4th Edn 1994 (DSM-IV) which we understand to be the two systems in general medical use: and it is significant that (consistently with the evidence of Dr Wright as quoted in paragraph 37 above) in neither system of classification does “functional overlay” or “psychogenic overlay” appear as a recognised illness or disorder in its own right.  
46.	Accordingly in our judgment neither Tribunal can be criticised for reaching the conclusion that on the evidence before them the “mental impairment” threshold under the Act had not been shown to have been met.  The real question for us to determine is whether either or both of the Tribunals, having decided to address and express themselves on the question of mental impairment at all, erred in failing to embark on some greater inquiry than they did into such questions before reaching a conclusion against the applicant.  On this our attention was again drawn to the observations of Morison J in Goodwin v Patent Office, where he said at page 307B that in the context of the Disability Discrimination Act:
“The role of the Industrial Tribunal contains an inquisitorial element, as Rule 9 of the Industrial Tribunals’ Rules of Procedure 1993 indicates.”
47.	If the Employment Tribunal were a true inquisitorial body, whose duty extended to ascertaining the actual nature of the disablement of any person appearing before it as an applicant regardless of the nature of the case put forward by the applicant themselves, we would have no hesitation in accepting that in the first case at least the suggestions in the orthopaedic physician’s evidence, that the applicant was “psychologically very disturbed” and was “expressing psychological turmoil through his musculo-skeletal system: in medical terms somatisation of an intrapsychic conflict”, would have given rise to a need for further inquiry into the nature of that disturbance and a reference for further medical report to determine whether the “somatisation” did or did not meet the diagnostic criteria for a recognised mental disorder.  However in our judgment it is not the case that an Employment Tribunal considering a dispute between two parties is an inquisitorial body in the same sense as for example a medical or other tribunal dealing with a disablement issue as part of the statutory machinery for determining benefit claims.  As noted in Stonham Housing Association v Pottage (EAT 26 October 2000) which was cited to us, the observations of Morison J relied on are shown by their context to mean no more than that the Tribunal is obliged, as indeed is expressly recorded in Rule 9 of the Tribunal Procedure Rules, to conduct the hearing in a fair and balanced manner, intervening and making its own enquiries in the course of the hearing of such persons appearing before it and such witnesses as are called before it as it considers appropriate, so as to ensure due consideration of the issues raised by, or necessarily implicit in, the complaint being made. However the role of the Tribunal is not thereby extended so as to place on it the duty to conduct a free standing inquiry of its own, or require it to attempt to obtain further evidence beyond that placed in front of it on the issues raised by the parties, or to cause the parties to raise additional issues they have not sought to rely on at all.  
48.	We accordingly reject the submissions common to both appeals that the Tribunals misdirected themselves as to the meaning of physical or mental impairment, or failed adequately to address the issues properly before them on the applications made.  
Additional issues: 
Rugamer v Sony Music – past disability
49.	For similar reasons to those last expressed, we also reject the submissions on behalf of the Appellant in the first case that the Tribunal misdirected itself or erred in failing to address the separate issue which was never raised by him that he had suffered discrimination, not as a person who was currently disabled at all at the time of the acts complained of, but as one who had in the past suffered a physical disability, within Section 2 of the 1995 Act.  It appears to us beyond dispute from the facts and the nature of the complaints made as summarised above that his case was put on the basis of a current and continuing physical injury at all material times.  A claim under Section 2 would have involved a completely different and inconsistent factual basis of claim, which neither he nor his representative at any stage sought to assert.  It cannot in our judgment be a ground of criticism of the Tribunal that they did not of their own motion embark on consideration of such a basis, which (in the context of its never having been asserted) no reasonable person could  have understood as included in the defined issues for the preliminary hearing as set out in the Tribunal’s letter of 18 June 1999 referred to above.  We accept the submissions of Mr Wynter on behalf of the respondents that there is an obvious difference between this and the Tribunal’s duty to consider questions necessarily implicit in the nature of the complaints actually made to them, as in Langston v Cranfield University [1998] IRLR 172 which was drawn to our attention. That general principle is not in doubt but it is simply inapplicable on the facts.
McNicol v Balfour Beatty – video evidence
50.	Finally we have not been persuaded that there was any material error of law in the way the Tribunal in the second case dealt with the video evidence showing the Applicant apparently carrying out activities he had claimed to be physically disabled from doing. We do of course caution Tribunals about accepting “sprung” video evidence not previously disclosed between the parties, because of the obvious risks of procedural injustice this may entail.  Particularly with unrepresented parties, it is a practice to be avoided if possible; and Tribunals must be vigilant when such material is sought to be introduced as evidence to ensure that the party concerned has an adequate and fair opportunity of dealing with it, including an opportunity to make any proper objection to its introduction in the proceedings, and any adjournment reasonably needed to consider a response.  
51.	However we have not been persuaded that the Tribunal’s acceptance of the video evidence in the circumstances of this particular case involved any procedural injustice to the Appellant in the way it was admitted.  Nor does it appear to us that any legitimate objection could have been taken to its actual contents for whatever they were worth as evidence; or finally that even if there had been some ground on which objection might have been taken to it, the acceptance of the video actually had any practical effect on the outcome of the case.  
52.	In the first place, the Applicant’s case was being presented through an apparently competent representative; and no application was made on his behalf either for the video not to be admitted at all, or for it not to be admitted unless strictly proved, or for it not to be looked at by the Tribunal until after the Applicant had had an opportunity of viewing it privately and before he started giving his own evidence.  A tribunal not bound by strict rules of evidence is in our view normally entitled to rely on the decisions taken by an applicant’s representative in the conduct of the proceedings in such circumstances, albeit not legally qualified.  Secondly there does not appear to have been any ground for suggesting that what was shown on the video gave an inaccurate or distorted picture of what the Applicant had actually been doing at the time it was taken; no suggestion was made to the Tribunal that it had been unfairly edited or was other than a genuine record of his activities in the street at the time. His own evidence did not dispute this and confirmed that he had indeed been doing what the video showed him as doing, but relied on the explanation that this happened to be one of his better days: an explanation duly recorded and taken into account by the tribunal, even if not accepted at face value.  Finally as is apparent from paragraph 13 of the Tribunal’s Extended Reasons quoted above the video evidence, and the doubts about the Applicant’s credibility which it confirmed, in fact only went to the issue of whether he was in truth suffering substantial long term adverse effects on his ability to carry out normal day-to-day activities as he claimed: an issue which would have arisen only if the case had not already been concluded against him on the initial condition as to whether he had a physical impairment at all. On that issue the answer as explained by the Tribunal in paragraph 11 and the beginning of paragraph 12 of their Extended Reasons was the same whether his exaggerated symptoms were genuine or not.  
Conclusion
53.	For the above reasons, we unanimously dismiss both appeals as we have not been satisfied there was any material error of law in the decision of either Tribunal.  We give each Appellant leave to appeal to the Court of Appeal as the points on the meaning of physical or mental impairment for the purposes of the Disability Discrimination Act 1995 are of general importance.  
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