Appeal No UKEAT/0915/04/DM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 23 March 2005
Judgment delivered on 13 June 2005

Before
HIS HONOUR JUDGE J BURKE QC
DR S R CORBY
MR P A L PARKER CBE

MR K A DUNHAM 	APPELLANT

ASHFORD WINDOWS	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR T BAINS
(Representative) 
Citizens Advice Bureau Specialist
Support Unit 
The Development Centre
Coxwell Avenue
Wolverhampton Science Park
Wolverhampton
WV10 9RT	
For the Respondent	MR T KIBLING
(of Counsel)
Instructed by :
Messrs Eversheds Solicitors
Holland Court 
The Close
Norwich
Norfolk NR1 4DX 	

SUMMARY

Disability discrimination-Mental Impairment
This is, it seems, the first appellate decision as to “mental impairment” in Schedule 1 paragraph 1 of the Disability Discrimination Act where the impairment relied on is not mental illness but “mental impairment” or “learning difficulties”. The Employment Tribunal rejected the claim on the basis that the evidence, from a consultant psychologist (1) did not prove an identified or specific condition and (2) was not from a doctor. They erred on both points; the evidence established “generalised borderline moderate learning difficulties”; which is a specific condition albeit generalised in effect and it was expert evidence from a qualified, experienced and unchallenged source; evidence from a doctor was not essential.         

HIS HONOUR JUDGE BURKE QC

The Appeal
1.	This appeal raises important issues as to the approach of Employment Tribunals to the words “mental impairment” in section 1(1) of the Disability Discrimination Act 1995 when the impairment relied upon is not a mental illness but is what used to be called “mental handicap” and is, in more modern times, described as  “learning disability” or “learning difficulties”.

2.	Mr Dunham was employed by Ashford Windows Ltd, the Respondents, as a fork lift truck driver and yardman in September 2002; he was dismissed on 6 December 2002. He complained to the Employment Tribunal that the Respondents had been guilty of disability discrimination by dismissing him and by failing to make reasonable adjustments. At first he said that his disability was dyslexia; but it became clear that his problems were more broadly based; and he was, at an interlocutory stage, permitted by the Tribunal to amend his Originating Application to assert that he was disabled ‘due to severe reading and writing difficulties.’ The Respondents denied that Mr Dunham was disabled; they asserted that, although he might suffer from learning difficulties, he did not have a clinically recognised mental illness or a specific mental impairment amounting to an impairment. It is, further, their case that they had done all they could to keep Mr Dunham at work but that he had been unable to learn to do his job safely and efficiently and had to be dismissed.

3.	The Tribunal heard evidence and submissions from both parties for over a day, at the end of which they concluded that there was a fundamental preliminary point, namely whether Mr Dunham had a mental impairment within the meaning of the 1995 Act, in circumstances in which it was common ground that he suffered from learning difficulties but that he did not suffer from a clinically well recognised mental illness. The Tribunal invited the parties to provide written submissions; and, after considering those submissions, they concluded that Mr Dunham had not established a specific mental impairment or clinical condition and, therefore, that it was not open to them to conclude that Mr Dunham had a mental impairment. Mr Dunham’s claim was, accordingly, dismissed. The Tribunal did not, in those circumstances, go on to consider the further question of whether Mr Dunham’s condition had a substantial and long term adverse effect upon his ability to carry out normal day to day activities.

4.	Mr Dunham now challenges that decision of the Tribunal.

The Evidence as to Mr Dunham’s Condition
5.	The evidence which both parties regarded as determinant of the issue consisted of an expert report from a chartered psychologist, Mr Cawkwell, who set out his qualifications and experience at the beginning of that report; he had been a senior educational psychologist for twenty years and, from 1994, had practiced as an independent consultant educational psychologist. It is apparent from his report that he had a great deal of experience in cases of learning difficulties. The Respondents did not wish to take issue with his report; he was not required to attend the Tribunal for cross-examination; his report was put before the Tribunal unchallenged.

6.	Mr Cawkwell described the numerous tests (with which any lawyer who has experience in the field of personal injuries will be very familiar) which he had administered to Mr Dunham. On the Wechsler Adult Intelligence Scale Mr Dunham’s full scale IQ was 73, which indicated that he functioned overall within the borderline moderate learning difficulties range. That full scale IQ score put Mr Dunham in the fourth centile i.e. the level at which 4% of the population functions (the Tribunal, mistakenly it seems, put that percentage figure in paragraph 6 of their reasons at 16.1%; but that mistake formed no part of the argument before us and plays no part in our decision on this appeal).The remainder of Mr Cawkwell’s report supports that general conclusion. On some tests Mr Dunham fared worse.        

7.	The Tribunal set out further features of Mr Cawkwell’s report at paragraph 8 of their reasons. They recorded Mr Cawkwell’s conclusion that Mr Dunham’s long term auditory memory skills are poorly developed and his short term memory shows marked weakness. They continued as follows:-

“Further, Mr Dunham has no phonic awareness i.e. no knowledge of building letters, sound combinations and sequence to correctly pronounce a word and concludes that 99.98% of the population of similar age to Mr Dunham have a better reading capability on the test material that the psychologist used. The same centile have a better spelling capability than the Claimant and 97% of the same age group have a better mathematical capability. Mr Dunham’s reading ability is assessed as having a reading age of 7 years 6 months; for instance he could not attempt to write his address from memory.”

At the date of the Tribunal’s hearing and decision Mr Dunham was 23 years old. 

8.	Mr Cawkwell’s report also set out how Mr Dunham can make no attempt to write any original output (as opposed to e.g. slowly copying), not even the simplest phrase or sentence.

9.	Mr Cawkwell’s conclusions are set out in section 4 of his report; he summarised the preceding content of his report and then said:-

“4.5 Mr Dunham’s level of intellectual functioning, his generalised learning difficulties and his present levels of literacy and numeracy capabilities, obviously govern the type of work he can satisfactorily manage. Work involving any literacy or numeracy capabilities, any reasoning capabilities any auditory memory demands, any initiative demands or any moderate organisational functions will be outside his level of competence. 

4.6 The generalised learning difficulties causing a cognitive, or mental, impairment experienced by Mr Dunham were present at birth and will have remained relatively constant to the present time and will continue in the same state throughout his lifetime.”

The Statutory Provisions
10.	The statutory provisions relevant to this case can be shortly set out. Section 1(1) of the Disability Discrimination Act 1995 provides:-

(1) Subject to the provision 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 on his ability to carry out normal day to day activities. 

Paragraph 1 of Schedule 1 to the Act provides:-

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.

Although Paragraph 2 of that Schedule provides that regulations may make provision for conditions of a prescribed description to be treated as amounting to impairments and for conditions of a prescribed description to be treated as not amounting to impairments, there are no such regulations which are of any relevance to this appeal.

Statutory Guidance
11.	In addition to the “Code of Practice for the elimination of discrimination in the field of employment against disabled persons or persons who have had a disability” issued in 1996 by the Secretary of State for Education and Employment under what was then section 53(1) of the  Disability Discrimination Act 1995, which is regularly referred to in disability discrimination cases but does not address questions as to what disability consists of, there is also, issued from the same source, “Guidance on matters to be taken into account in determining questions relating to the definition of disability” issued under section 3 of the 1995 Act; and that guidance is regularly referred to in disability discrimination cases where an issue arises as to whether the Claimant has a disability within section 1(1).

12.	Section 3(1) of the Act provides as follows:-

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 persons ability to carry out normal day to day activities 
or
(b) whether such an impairment has a long term effect.

13.	That guidance includes, under the general heading, ‘Impairment’, the following paragraphs:-

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 include a wide range of impairments relating to mental functioning, including what are often known as learning disabilities (formerly known as “mental handicap”).
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.”

14.	Mr Kibling on behalf of the Respondents pointed out to us, as no doubt he had to the Employment Appeal Tribunal in Morgan v Staffordshire University [2002] IRLR 190, that section 3 (3) of the 1995 Act, which provides that an adjudicating body determining for any purpose of the Act whether an impairment has a substantial long term adverse effect on a person’s ability to carry out normal day to day activities should take into account any guidance which appears to it to be relevant, did not refer to guidance as to what constitutes an impairment (which is the topic addressed by the paragraphs in the guidance which we have just set out) and that section 3(1) of the Act does not refer to guidance as to what constitutes an impairment as opposed to guidance as to the effects of such an impairment, once impairment is established. He went so far as to submit that the paragraphs in the guidance which we have set out above were “ultra vires”. The Employment Appeal Tribunal in Morgan, presided over by Lindsay J, said on this topic, at paragraph 9 of their judgment,

“Whilst it may be debated whether a tribunal is bound to accept the guidance there given, it plainly cannot be wrong to accept it”

We respectfully agree. We are not bound to accept that guidance and, perhaps, are not bound to take it into account; but we can see no basis on which it could be said that we cannot take it into account; and we have regarded it as right to do so.

The Authorities
15.	There are three relevant authorities. The first in time is Morgan, in which the Claimant put forward a case of disability discrimination based on mental illness; no question of any mental impairment other than mental illness arose. At the relevant hearing no medical evidence was put forward, although some of the Claimant’s medical records were produced. They referred to anxiety, stress and depression. The Tribunal dismissed the claim on the ground that the Claimant had not proved that she had a mental impairment i.e. a mental illness; and the Employment Appeal Tribunal upheld the Tribunal’s decision. Having addressed the impact in a case such as Morgan of the paragraphs of the guidance document to which we have referred, Lindsay J continued, at paragraph 9:-  
“Accordingly, in general there will be three or possibly four routes to establishing the existence of ‘mental impairment’ within the DDA, namely:
(i)  proof of a mental illness specifically mentioned as such in the World Health Organisation’s International Classification of Diseases (WHOICD)
(ii) proof of a mental illness specifically mentioned as such in a publication ‘such as’ that classification, presumably therefore referring to some other classification of very wide professional acceptance;
(iii) proof by other means of a medical illness recognised by a respected body of medical opinion.
A fourth route, which exists as a matter of construction but may not exist in medical terms, derives from the use of the word ‘includes’ in paragraph. 1(1) schedule 1 to the Act. If, as a matter of medical opinion and possibility, there may exist a state recognisable as mental impairment yet which neither results from nor consists of a mental illness, then such state could be accepted as a mental impairment within the Act because the statutory definition is inclusive only, rather than purporting to exclude anything not expressly described by it. This fourth category is likely to be rarely if ever invoked and could be expected to require substantial and very specific medical evidence to support its existence.”

16.	Three of the four routes there identified are derived from and spring directly from the words at paragraph 14 of the guidance document. The fourth route is derived from the words of Schedule 1 paragraph 1(1) of the Act. If that route did not exist as a matter of construction, the word ‘includes’, in that paragraph of the schedule, would have to bear a wholly different meaning from its natural meaning; it would have to mean ‘consists of’; but, if it had that meaning, individuals who could demonstrate that they suffered from mental impairment of a serious nature which gravely affected all or many aspects of their intellectual functioning and behaviour and manifestly had a substantial and long term adverse affect upon their ability to carry out normal day to day activities but in whose cases the impairment could not be attributed to an illness would not fall within the protection of the Disability Discrimination Act 1995 at all. Persons such as those with learning disability or difficulties, formerly known as ‘mental handicap’, to which paragraph 13 of the guidance specifically refers as included within mental impairment, would in fact be excluded. Yet it is surely common knowledge that there are many people who suffer from ‘mental handicap’, of such a degree that they can only live in hospitals or other institutional settings; the class of persons so suffering includes those whose disabilities may been present from birth or may have been caused by external factors in their lifetime; they cannot be described as suffering from mental illness.

17.	The Employment Appeal Tribunal went on to dismiss the appeal in Morgan because no expert evidence and no informed medical diagnosis had been put before the Tribunal so as to prove a clinically well recognised mental illness. Since mental illness alone was relied upon, the fourth route was not open to the Claimant, and its scope was not directly relevant to the Employment Appeal Tribunals consideration of the appeal.

18.	Having so decided, the Employment Appeal Tribunal went on to make some general observations, at paragraph 20,which relate, for the most part, to mental illness cases falling within one of the first three routes earlier described by the Employment Appeal Tribunal; it is, however, helpful to refer to two paragraphs of those observations, as follows:-

(5) This summary we give is not to be taken to require a full consultant’s psychiatrist report in every case. There will many cases where the illness is sufficiently marked for the claimant’s GP by letter to prove it in terms which satisfy the DDA. Whilst the question of what are or are not ‘day-to-day activities’ within the DDA is not a matter for medical evidence-Vicary v British Telecommunications plc [1999] IRLR 680 EAT, the existence or not of a mental impairment is very much a matter for qualified and informed medical opinion. Whoever deposes, it will be prudent for the specific requirements of the Act to be drawn to the deponent’s attention……

(8) The dangers of the tribunal forming a view on “mental impairment” from the way the claimant gives evidence on the day cannot be overstated. Aside from the risk of undetected, or suspected but non-existent, play-acting by the claimant and that the date of the hearing itself will seldom be a date as at which the presence of impairment will need to be proved or disproved, tribunal members will need to remind themselves that few mental illnesses are such that their symptoms are obvious all the time and that they have no training or, as is likely, expertise, in the detection of real or simulated psychiatric disorders.”

19.	The next authority is McNichol v Balfour Beatty Rail Maintenance Ltd [2002] EWCA CIV 1074, judgment handed down 26 July 2002. In McNichol, too, the Employment Tribunal had decided that the Applicant was not suffering from a disability. He claimed that in the course of his work a vehicle which he was driving had gone over a pot- hole, causing him to be jolted upwards. He went off work and did not return. He identified his disability as arising from a compression injury to his spine. At no stage did he put his case before the Tribunal on the basis of mental illness generally or functional overlay in particular; but the medical evidence put before the Tribunal from a consultant spinal surgeon was that Mr McNichol’s continuing symptoms were not the result of physical impairment. (It was, perhaps, not surprising that) the claim failed; and the Applicant’s appeal to the Employment Appeal Tribunal was dismissed, as indeed was his further appeal to the Court of Appeal.

20.	At paragraph 17 of his judgment Mummery LJ, with whom Wall J and the Vice-Chancellor agreed, said:-

“The approach of the tribunal should be that the term “impairment” in this context bears its ordinary and natural meaning. It is clear from Schedule 1 to the 1995 Act that impairment may result from an illness or it may consist of an illness, provided that, in the case of mental impairment, it must be a “clinically well-recognise illness.” Apart from this there is no statutory description or definition of physical or mental “impairment.” The Guidance issued under section 3 of the 1995 Act by the Department of Education and Employment on 25 July 1996 states in the Introduction section in Part 1 that “it is not necessary to consider how an impairment was caused” and some examples of physical and mental impairment are given (e.g. sensory impairment s affecting sight or hearing), but no general definition or description of “impairment” is attempted.”

21.	At paragraph 26 Mummery LJ further said 

“I agree with the guidance recently given by Lindsay J in Morgan v Staffordshire University. The onus is on the applicant to prove the impairment on the conventional balance of probabilities. In many cases there will be no issue about impairment. If there is an issue on impairment evidence will be needed to prove impairment.”

22.	The third authority is John Grooms Housing Association v Burdett [2004] UKEAT/0937/03/TM (in which the judgment of the Employment Appeal Tribunal, presided over by HHJ Reid QC was delivered on 22 March 2004.) Although John Grooms preceded the hearing in this case by four months, it was not then  and still has not been reported; and although it would have been available on the Employment Appeal Tribunal’s website, it would be wholly unfair to criticise Mr Lees, a representative of the Citizens Advice Bureau who represented Mr Dunham before the Tribunal, or Mr Brown, an employment consultant who represented the Respondent at that stage, for failing to unearth it and cite it to the Tribunal. The majority of the Employment Tribunal in that case found that the Applicant was disabled by a mental impairment, namely chronic recurrent depression. The claim was, therefore, as in Morgan, based on mental illness. The employers’ appeal was based on the absence, in the only expert evidence before the Tribunal which consisted of a letter from the Applicant’s G.P, of any statement that the mental illness which he described fell within the W.H.O’s classification or any other recognised classification. Thus the employers’ argument was that the Applicant could not succeed on any of the three routes to success in a mental illness case described by the Employment Appeal Tribunal in Morgan in the passage which we have set out above.

23.	The Employment Appeal Tribunal, having set out that passage in Morgan, responded to the employers’ argument in paragraph 6 of its judgment, as follows:-

“It will be noted that the passage begins with the words “In general”. The passage gives general guidance on the routes to be followed in establishing that the existence of ‘mental impairment’ for the purposes of the Act. Since the onus is on the applicant, it will be a rash applicant who ignores that passage. If an applicant does not go down one of these routes, then the claim may very well fail, as it did in the Morgan case. However, it does not necessarily follow that if an applicant has not gone down the recommended route a Tribunal that nonetheless finds mental impairment within the Act will be held wrong in law to do so. In the present case the Tribunal were presented with a letter which was specifically prepared with the Act in mind. It detailed a long medical history with recurrent mentions of panic attacks and depression and a long history of treatment. In these circumstances it seems to us that the majority of the Tribunal were entitled to take the view that Ms Burdett had discharged the onus which was on her and that what was identified was a clinically well-recognised illness.”	                      

24.	Thus the employers’ line of attack on the Tribunal’s decision failed. In any event, by the date of the hearing of the appeal, the Applicant’s G.P had written a further letter, stating that her condition was classified within the W.H.O classification; and the evidential gap on which the employers relied was closed. 

The Tribunal’s Decision
25.	In this case the submissions to the Tribunal on behalf of Mr Dunham did not involve reliance on mental illness. Therefore they focused on the fourth route set out by the Employment Appeal Tribunal in Morgan. It was submitted that Mr Dunham had the specific condition of mental impairment described by Mr Cawkwell, namely borderline moderate learning difficulties which were generalised. On behalf of the Respondents, reliance was placed on the words of Mummery LJ in paragraph 17 of his judgment in McNichol. It was submitted that there was no substantial and specific medical evidence that Mr Dunham suffered from a mental impairment resulting from a clinically well recognised mental illness; Mr Dunham suffered only from generalised learning difficulties and not from a specific learning difficulty or mental handicap.

26.	The Tribunal concluded, in paragraphs 24-26 of their Reasons, as follows:- 

24 “The difficulty faced by the claimant in this case is not the establishment of the consequences of any condition that the claimant may be suffering from. It is clear from Mr Cawkwell’s report that the claimant, for all intents and purposes, cannot read and write and that his numeracy skills are severely impaired. It is also apparent that he has a poor memory.The essential problem is that the claimant has not established a specific mental impairment under the Act and may arise “(sic)” from the terms of reference and the professional category of the experts. Mr Cawkwell is a psychologist, not a medical practioner That is not a criticism of him. However, his terms of reference were to establish the claimant’s intellectual and basic educational functioning and his skills profile and identify his learning difficulties. In essence, Mr Cawkwell was identifying the consequences of any condition, albeit a specific mental impairment, the result of inadequate schooling or whatever, and not to attempt to define a specific mental impairment His conclusions is “(sic)” that the claimant has moderate learning difficulties. In those circumstances it seems to us that the claimant has not established a mental impairment.” 

25. We have considered very carefully whether we should deduce the existence of a mental impairment from the conclusions of the report and the claimant’s undoubted difficulties in coping with matters of numeracy, literacy and memory. We are not so able to do. First, we have the dictum of Lord Justice Mummery in the McNichol case which may slightly over-state the position but which nonetheless is indicative of the general approach of the Court of Appeal. Secondly, we have the opinion of the Employment Appeal Tribunal in a considered and detailed assessment of the provisions of the definition of mental impairment under the Act. There is no substantial and very specific medical evidence in this case to identify what, if any, mental impairment the claimant suffered from. As Mr Brown points out, even the mild criticism of Mr Justice Lindsay by Mr Rubenstein proceeds on the concession that a proper identification of a clinical condition is necessary.

(We would interpose that the reference in that last sentence is a reference to a comment made about the decision in Morgan by the Editor of the Industrial Relations Law Reports).

26. In those circumstances it seems to us ,on our interpretation of the dicta  in Morgan, that it is not open to us to conclude that  the claimant is disabled. He has not established it on the balance of probabilities on the evidence and, further, we do not draw the inference from the claimant’s undoubted limitations that they result from a specific clinical condition.”

27.	As Mr Kibling agreed in the course of his argument on behalf of the Respondents, in those paragraphs the Tribunal were giving two reasons for rejecting the claim. They were; (1) that Mr Dunham had not established a specific mental impairment which amounted to a specific clinical condition; and (2) that Mr Cawkwell was a psychologist and not a medical practioner.

Submissions on behalf of the Appellant
28.	Mr Bains, who is a CAB representative, as was Mr Lees who represented Mr Dunham before the Tribunal, put the appeal on behalf of Mr Dunham in two ways. He submitted, first, that the words of paragraph 6 of the Employment Appeal Tribunal’s Decision in John Grooms had opened up a fifth route, in addition to the four routes set out in Morgan,  which enabled a Tribunal to find mental impairment proved without evidence of a specific or classified condition. Alternatively he submitted that on the evidence before the Tribunal, Mr Dunham’s case fell within the fourth Morgan route, that the Tribunal had not given appropriate weight to paragraph 13 of the guidance document, that there was evidence of a specific condition of mental impairment i.e. generalised borderline moderate learning difficulties and that the Tribunal should not have rejected or declined to act upon that evidence, because Mr Cawkwell was a psychologist and not a doctor.

Submissions on behalf of the Respondent
29.	Mr Kibling submitted that the Decision in John Grooms did not open any new fifth route to the successful establishment of mental impairment. As to the fourth route he submitted:

(i) that there was no evidence of mental illness although he accepted that the word “includes” in paragraph 1 of schedule 1 of the Act must have the effect that mental impairment which did not
involve mental illness was not excluded from the definition of disability.

(ii) that if mental impairment which did not consist of mental illness was relied upon the applicant had nonetheless to prove a specific condition which was clinically well recognised, as set out in Morgan and McNichol.

(iii) that such a condition could only be proved by medical evidence

(iv) that Mr Dunham had failed to prove such a condition and had adduced no medical evidence; or the Tribunal were entitled so to find.

He drew our attention in particular to paragraph 4.4 of Mr Cawkwell’s report in which he suggested that Mr Dunham had under-performed in his school years and could with appropriate specialist help improve his literacy and numeracy skills.

Conclusions
30.	This appears to us to be the first case in which the question as to how Employment Tribunals should approach a case of mental impairment, in the absence of any suggestion of mental illness, has arisen directly at an appellate level. Morgan and John Grooms were mental illness cases; and the claim in McNichol was put on the basis of physical and not mental impairment.

31.	In this context the distinction between mental impairment consisting of learning difficulties or disability, formerly known as ‘mental handicap’, and mental illness, which is expressed in clear terms in paragraph 13 of the guidance document, (with which distinction anyone who has worked in the personal injury or mental health fields will be familiar), is of some weight. It is consistent with the natural construction of the words of Paragraph 1(1) of Schedule 1 of the 1995 Act which clearly include within the definition of mental impairment an impairment which does not arise from a mental illness. The first three routes set out in paragraph 9 of the Employment Appeal Tribunal’s judgment in Morgan relate to proof of mental illness; but there must, in our judgment, be a fourth route by which an Applicant who bases his case on learning difficulties or mental handicap can seek to establish that he suffers from mental impairment. Otherwise Claimants with what may be very serious disabilities, which have serious effects on their functioning generally or in a specific area of function, would be excluded from the scope of the 1995 Act, contrary to good sense and contrary to the guidance document.

32.	We cannot say to what extent, if at all, the Employment Appeal Tribunal in Morgan had before it any information or argument about the type of case now under consideration; we suspect that if it had, it might not have described the fourth route as one likely to be rarely if ever invoked; but whether or not that be right, it has been invoked in this case; and, subject to an initial suggestion from Mr Kibling, from which he gracefully retreated, that only mental illness fell within the statutory definition of mental impairment, its existence is not open to doubt .

33.	We do not accept Mr Bains’ submission that the Employment Appeal Tribunal’s decision in John Grooms opens up a new route to the proof of mental impairment of which Mr Dunham can take advantage. In that decision the Employment Appeal Tribunal held that the majority of the Tribunal was entitled to find mental illness proved on the basis of evidence from a GP which identified a clinically well recognised illness, albeit without stating that it fell within a particular classification. Insofar as the Employment Appeal Tribunal was approving of any reduction to the standards of proof set out in paragraph 9 of the Employment Appeal Tribunal’s judgment in Morgan , it did so in the context of the words ‘clinically recognised illness’ in Paragraph 1(1) of Schedule 1 of the Disability Discrimination Act 1995, which words apply only to mental illness. Those words do not apply in a case of mental impairment which is not or does not consist of mental illness; and John Grooms appears to us to have no direct relevance to the present appeal.

34.	The words of Mummery LJ in paragraph 17 of his judgment in McNichol cannot, in our judgment, be taken as requiring the establishment of a clinically well recognised illness in a case which is not based on mental illness at all. No question as to mental impairment which did not arise from illness arose in that case; and although paragraph 17 of Mummery L J’s judgment is generally expressed, the relevant words refer only to cases of mental illness.

35.	The real issue upon which this appeal turns is whether the Tribunal were correct to or entitled to conclude that the evidence in this case did not permit Mr Dunham to establish medical impairment by the fourth route.

36.	In considering that issue we would at the outset reject Mr Kibling’s argument, in reliance on paragraph 4.4 of Mr Cawkwell’s report, that this was a case in which Mr Dunham had simply not done well at school and could now improve the standard of his attainments. We do so for two reasons. The first is that, as Mr Kibling accepted, paragraph 4.4 or its contents are not directly put forward by the Tribunal as a reason for rejecting Mr Dunham’s claim; they did not decide that Mr Dunham’s condition was not sufficiently severe. The second is that Mr Cawkwell nowhere suggests that, even with the provision of appropriate teaching support, Mr Dunham, albeit functioning at an improved level in certain respects, would no longer come within the category of generalised borderline moderate learning difficulties. His literacy and numerical skills were at a substantially lower level than his general abilities, as the report makes clear.

37.	We have already identified the two reasons given by the Tribunal for rejecting Mr Dunham’s claim; they were the absence of proof of a specific mental impairment or clinical condition and the absence of medical evidence. As to the former, although in the case of mental impairment which does not consist of mental illness the words ‘only if the illness is a clinically well recognised illness’ do not apply, it is unlikely to be sufficient for a Claimant to put his case only on the basis that he had difficulties at school or is ‘not very bright’. Tribunals are likely to look for expert evidence as to the nature and degree of the impairment from which a Claimant claims to suffer (although questions of degree will principally fall to be considered in the context of whether the impairment has a substantial and long term adverse effect upon the ability of the Claimant to carry out normal day to day activities, some evidence as to the degree of handicap will be necessary to demonstrate that there is an impairment at all) and for evidence of a particular condition from which the Claimant suffers (which may have a specific or a  generalised effect on function). Accordingly the Tribunal, as it seems to us, were entitled to and correct to look for expert evidence of an identified condition. 

38.	However, in our judgment, they erred in concluding that there was no such condition on the evidence before them. The seeds of their error may perhaps be seen in paragraph 18 of their Reasons which records the submission on behalf of the Respondent that Mr Dunham did not have a specific learning difficulty but only generalised learning difficulties, and that a specific mental handicap was required. If that submission were to be right, it would have the effect that a person who is born with or subsequently acquires a mental handicap which affects him in one specific area such as for example dyslexia, can establish mental impairment; but a person who has generalised learning difficulties or a mental handicap of a generalised nature which affects his cognitive functions broadly cannot establish mental impairment. We believe that all would regard that as an unsupportable position. Yet it appears to us that the Tribunal were persuaded by that argument on behalf of the Respondents to decide that it was not open to them to conclude that Mr Dunham was suffering from mental impairment when, if his report is read as a whole, it can be seen that Mr Cawkwell did identify a specific condition, namely that of borderline moderate learning difficulties which were generalised; see paragraphs 1.1.1 and 4.6 of his report. Those difficulties were described in paragraph 4.6 of Mr Cawkwell’s report as generalised not because there was no specific condition, but because the specific condition which he described had a generalised effect, as he had demonstrated in his report. Had he been required to attend the Tribunal hearing, he would no doubt have said, if asked, that he had described in his report a specific and recognised condition; but the absence of an express declaration to that effect in his report did not, (when the report is read as a whole), justify the conclusion that he had not described a specific condition.                                                            
 
39.	That the Tribunal erred in the manner we have described appears to be us to be confirmed by the words in paragraph 24 of the Reasons:-

“Mr Cawkwell was identifying the consequences of any condition, albeit a mental impairment, the result of inadequate schooling or whatever, and not to attempt to find a specific mental impairment.”

In that sentence the Tribunal appears to have confused an identified condition which is generalised i.e. has widespread effect with evidence which is not of any identified condition at all.

40.	In our judgment the Tribunal also fell into error in relying on the fact that Mr Cawkwell is a psychologist and not a medical practioner. That reliance is, perhaps, understandable. The Employment Appeal Tribunal in Morgan indicated that the fourth route could be expected to require very specific medical evidence to support its existence; and Mummery LJ in McNichol, at paragraph 19 of his judgment, said

“The essential question in each case is whether, on sensible interpretation of the relevant evidence, including the expert medical evidence and reasonable inferences which can be made from all the evidence the applicant can fairly be described as having a physical or mental impairment.” 

However neither in Morgan nor McNichol was the Employment Appeal Tribunal or the Court of Appeal considering a case of mental impairment which did not involve a mental illness; nor was the effect of expert evidence from a psychologist as opposed to a doctor under examination. We do not regard their dicta as imposing a requirement of medical evidence in every case, even where appropriate expert evidence as to the type and nature of the condition which formed the basis of the claim is available. We accept that in the case of mental illness medical evidence as to the nature of that illness is likely to be expected, as in the case of a physical illness; but in a case of learning difficulties we see no reason why the essential evidence which establishes the nature of the condition from which the Claimant claims to suffer should not be provided by a suitably qualified psychologist. What is important is that there should be evidence from a suitably qualified expert who can speak, on the basis of his experience and expertise, as to the relevant condition. Mr Cawkwell’s unchallenged report demonstrated that he had very substantial experience in the relevant field; and it was not open to the Tribunal, in our judgment, to decline to accept his conclusions and to reject Mr Dunham’s claim because Mr Cawkwell was not a doctor.     

41.	For these reasons we have reached the conclusion that the decision of the Tribunal in this case cannot stand. The appeal must be allowed.

42.	Both parties before us agreed that, if we decided that Mr Cawkwell’s report did demonstrate a specific condition and that the fact that he was not medically qualified did not lead to the result that the claim failed, and we do so decide, we could and should substitute for the Tribunal’s decision, a decision that Mr Dunham has been shown to suffer from mental impairment and should then remit the case to the Employment Tribunal to proceed to determine the issues which follow from that decision. The parties were realistic and sensible in that view. We therefore allow the appeal, substitute a decision that Mr Dunham suffers from mental impairment for the purposes of section 1(1) of the Disability Discrimination Act 1995 and remit his claim to the Employment Tribunal for consideration of the remaining issues which arise in his case, including, if it is still in dispute, the issue as to whether his impairment has a substantial and long term adverse effect on his ability to carry out normal day to day activities.

43.	It is not essential that a remission should be to the same or to a differently constituted Tribunal; we do not know how difficult it may be to reconstitute the same Tribunal; the parties before us agreed that the constitution of the Tribunal which takes this claim further should be a matter for the decision of the appropriate regional chairman.