JMH/SH/IW

           

THE SOCIAL SECURITY COMMISSIONERS

				Commissioner’s Case No:	CDLA/944/2001

SOCIAL SECURITY ACT 1998 

APPEAL FROM DECISION OF AN APPEAL TRIBUNAL
ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

MR COMMISSIONER J M HENTY

1.	My decision is that the decision of the appeal tribunal was erroneous in point of law.  I set it aside and remit the case for re-hearing in front of a differently constituted tribunal.  As the Secretary of State submitted to me in para 5 of his submissions dated 17.9.2001 the tribunal apparently formed, or certainly appeared to form, its conclusion as to the origin of the claimant’s behavioural propensities upon a mistaken finding of fact, namely that no psychiatric referral had taken place and plainly that was not the case.  There was therefore an error in law. 

2.	The solicitors acting have very recently submitted to me a psychiatric opinion dated 2 February 2000.   It would not appear to have been in the file for the tribunal and a tribunal does not err in law in not considering evidence not before it - para 3R(S)1/88.

It is not appropriate for me to make any findings on the basis of that opinion, but, in passing, I would note that para 6.1 prima facie is not helpful to the claimant’s case.  It will be admissible before the new tribunal and I direct it be added to this file. 

3.	The new tribunal will have to determine whether the night time enuresis is of physical or mental origin and further, if  the general pattern of the claimant’s behaviour is mental, they must identify the mental disorder involved.  This will require further evidence.  I deal with that aspect of the case in paras  9 and 10 below. 

4.	This is an appeal from the decision of an appeal tribunal dated 4.1.2001.  I granted leave to appeal on 1.8.2001, noting that there appeared to be a divergence of opinion between the Commissioners on the issue raised.  I also pointed out that, e.g. at p57, there was some evidence of psychiatric investigation.  I do not know whether that was a reference to the psychiatric opinion of 2.2.2000, then in process of being obtained.

5.	The claimant was born on 9.2.84 with a congenital heart disorder.  At all material times, he has been represented throughout by his appointee for the time being.  He was in receipt of an award in respect of both components of DLA for some years, and, after continual treatment, it is clear that his physical condition has improved to such an extent that an award based on his physical disabilities was no longer justified.  Following a report from the GP dated 1.2.2000 (56-58), on a renewal claim, the Secretary of State decided that, as from 19.2.2000, the claimant was no longer entitled.  There was a reconsideration of that decision, at which a most helpful letter from the GP dated 27.3.2000 (62-63) was produced in evidence, but the Secretary of State did not revise his decision.  However, the claimant has developed serious behavioural problems and it is argued on his behalf that, pursuant to section 72(1)(b)(ii) SSC & BA 1992, he is so severely disabled, mentally or physically, that “he requires from another person … (ii) continual supervision throughout the day to avoid substantial danger to himself or others”, and, alternatively, guidance or supervision in respect of the lower rate mobility component pursuant to section 73(1)(d) ibid.  

6.	The claimant appealed, and his appeal was heard and dismissed on 4.1.2001.  As to the behavioural problem, the tribunal came to the following conclusion:-

	“It was submitted that [the claimant] is in constant need of supervision.  However, we did not accept that these problems arise as a result of a disordered mental condition: it appears that they are simply behavioural.  In support of this, we noted that, again, [the claimant] takes no medication for any psychiatric condition, and has never been referred to a psychiatrist or for any hospital treatment for psychiatric problems.  There is no diagnosis of any mental condition.  All the evidence indicates, as submitted by the Presenting Officer, that as in R(A) 2/92 [the claimant’s] problems arise from a defective character rather than a disabling condition.”

They concluded that the appeal should be dismissed.  

7.	From that decision, he appeals to me solely on what can be described as “the behavioural issue”.  As to this there is, or appears to be, a conflict between the Commissioners.  I now turn to look at the principal authorities.  

8.	The authorities

(1)	R(A) 2/92.  [4.6.91]

When granting leave to appeal, the then Chief Commissioner posed the following question:-

	“Is it right under section 35(1) Social Security Act 1975 [now in effect section 72(1)(b)] to reframe the statutory words ‘so severely disabled physically or mentally that … he requires …’ into a question treated as determinative of whether a person is suffering from a severe mental or physical disability and to sever the language of the subsection?”

The Commissioner answered that question at para 10 as follows:-

	“	10.	I would answer the question posed at the time leave to appeal was given in the affirmative.  Clearly where a person indulges in aggressive or seriously irresponsible conduct the Board has to consider whether that arises from some recognised disordered mental condition or whether it merely arises from a defective character.  In my judgment that was what the Board did in the case before me and they are not to be faulted.”

That would not appear to admit of any ambiguity .  

(2)	CDLA/15892/96  [7.10.98]

In para 6 the Commissioner said:-

	“	6.	At each stage the adjudication officers and the tribunal took the view that the claimant was not suffering from any severe or mental disability giving rise to his need for care.  However, the tribunal itself found as a fact that the claimant ‘suffers from persistent nocturnal enuresis requiring attendance …’.  It seems to me that to suffer from enuresis is to suffer from a disability.  Whether it is physical or mental in origin, or whether its origin can or cannot be established, is irrelevant.  The parties have referred to the several decisions by Commissioners in relation to the meaning of the words in section 72(1) but in my view it is not necessary to go further in this case than the plain meaning of the words of the section.  If the claimant suffers from a disability, the question is whether he is so severely disabled that he reasonably requires the specified attention.  The Act does not require that the claimant suffers from a ‘severe disability’.  It requires that the claimant suffers from a disability which has an effect of a particular severity.”

(3)	The Common Appendix to CDLA/15467/96 and others [9.2.99]
In para 8 of the Appendix, the same Commissioner said:-

		“In order to decide whether a claimant is ‘disabled physically or mentally’ the tribunal must take into account all relevant medical and other evidence.  It would be wrong to reach a conclusion on this without doing so or to treat it as a preliminary issue in the sense of disregarding the evidence as to the effect of the claimed difficulties or problems.  A medical report describing or confirming a well established or well known diagnosis (such as ‘fractured leg’ or ‘severe learning difficulties’) or a ‘clinically well-recognised illness’) … might settle this particular issue.  However, that does not mean that the absence of such a report, diagnosis or illness must inevitably lead to the conclusion that the words of the statute do not apply.  The state of medical knowledge is neither certain nor static.  The tribunal should consider the manifestations of a condition and the actions and abilities of the claimant together with any other evidence.  The fact that no diagnosis has or has yet to be made, or that no label has been given or has yet been invented for the condition, does not deprive the tribunal of its jurisdiction and responsibility to decide the issue.  … in particular, it would be unjust to have different results in two cases, one where the evidence or specific manifestations had been presented to the tribunal without a label, and one where evidence of the same manifestations had been presented together with a label..”

(4)	R(DLA) 2/00  [10.8.99]

In para 15 of that decision the Commissioner in that case commented as follows:-

	“	15.	There are however issues which have not been properly resolved in that regard.  The first of these is whether enuresis is a physical or mental disablement.  That was an issue which was raised in CSDLA/296/1998 and which was not addressed by the tribunal.  It is a crucial issue as a physical or mental disablement is required before entitlement to the allowance can be established.  That is clearly set out in R(A) 2/92 where Mr Commissioner Skinner said ‘clearly where a person indulges in aggressive or serious irresponsible conduct the Board has to concede whether that arises from some recognised disordered mental condition or whether it arises from a defective character.’  There is a recent authority by Mr Commissioner Levenson in the appendix to CDLA/15467/1996 in paragraphs 8 and 10.  In particular in paragraph 10 the Commissioner quotes what he said in CDLA/15892/1996, put it this way:-

		“It seems to me that to suffer from enuresis is to suffer from a disability.  Whether it is physical or mental in origin, or whether its origin can or cannot be established is irrelevant.”

	I do not accept that as a sound statement of law.  It is contrary to the views reached by Mr Commissioner Skinner in R(A) 2/92 which as a reported decision had the assent of the majority of Commissioners.  I am satisfied that the establishment of a disability caused by a medically recognised, physical or mental condition is an essential pre‑requisite.  To hold otherwise would broaden the scope of disability allowance far beyond what is envisaged by the statute.”

I would also make the same comment here namely that this is a reported decision.  

(5)	CDLA/787/1998 [3.11.99]

In that case the Commissioner said:-

	“24.	It has been held that ‘severely disabled physically or mentally’ relates to a condition of body or mind that can be defined medically:-- see the decisions of the Commissioners in CA/123/1999, paragraph 4 and R(A) 2/90 to paragraphs 7 and 8.  I must follow those decisions as a matter of comity and in the interests of certainty (see the decision of the Tribunal of Commissioners in R(I) 12/75, paragraph 21), unless they (a) are clearly wrong, (b) have been overruled or (c) can be distinguished.  None of these conditions is satisfied.  

And later on the Commissioner commented:-

	“	44.4	Although the claimant’s problems might involve the mind, it was not in the same sense as major disorder.  Conduct disorders were distinguished from sickness.  Sickness involved one or more of these elements:  threat, pain, limitation, transmissibility, or implications outside itself (or serious disease).  The symptoms of conduct disorders, unlike those of sickness, could be reproduced at will.”

(6)	Finally there is the decision of a Deputy Commissioner in CDLA/948/2000 [1.6.2001].  

In that the Deputy Commissioner said:-

	“	24.	The representative of the Secretary of State has contended that the establishment of a disability caused by a medically recognised, physical or mental condition is an essential pre‑requisite for the award of either component of disability living allowance.  It appears to be to follow from the decision cited above that, except to the extent that there must be physical disablement for the purposes of higher rate mobility, the cause of the disability is not decisive.  This follows from the decision of Mr Commissioner Levenson … [those cited above]  Mr Commissioner Levenson held that the words ‘physically’ and ‘mentally’ were ordinary words of the English language to be understood in the ordinary way by members of the tribunal they are to be applied in the way required by law and that the focus of section 72 SSC BA 1992 was on the needs of claimants and their ability to cope without assistance rather than any specified diagnosis.”

He then sets out paragraph 8 of the Appendix which I have set out above.  

	“	25.	I agree with that statement of the law and it should be adopted by the new tribunal determining this case.” 

In paragraph 26, he referred to the passage I have cited from CDLA/15892/1996 and, at paragraph 27, he noted the decision in R(DLA) 2/00.  He then continued:-

	“	28.	I cannot agree that there is any conflict between the decisions of Mr Commissioner Levenson and R(A) 2/92.  In R(A) 2/92 the issue was whether the claimant suffered from a mental disability at all, not whether it was necessary to resolve a dispute as to which of the two mental disabilities he suffered from.  The use of the word ‘recognised’ in R(A) 2/92 must be read in this context.  Mr Commissioner Skinner was not considering a situation in which there was plainly a disability and the only question was which one, and in my judgment he had meant no more than that the condition in question must be medically recognised as a disability.  

		29.	Nor can I agree with Mr Commissioner May’s suggestion that this approach would broaden the scope of disability allowance far beyond what is envisaged by the statute.  The statute does not say that the disability must be identified, and I cannot see that a dispute between doctors, or the absence of a precise diagnosis of the disability can possibly have been intended by Parliament to take out of benefit the unfortunate sufferer who would qualify whichever of the possible diagnoses eventually proved to be right.  Indeed, this approach is inconsistent with the approach of other Commissioners in later decisions referred to above.”

9.	In this case, if anything, the claimant may be suffering from a mental disorder.  It seems to me that, in the legislation, a reference to a mental disability involves precisely that.  Is the claimant suffering from a mental disorder?  Then the severity and the effect of that disorder can be assessed to see whether he is so severely disabled to merit an award of either component.  Section 19 of the Second Edition of The Disability Handbook contains a comprehensive list of all known mental disorders.  The list is, broadly speaking, subdivided into categories of various known and recognised kinds, and each category is of a general compass, and clearly the manifestation of each disorder within each category may of course take many forms.  I set out the list:-

	Psychoses

	Schizophrenia

	Severe depressive disorder

	Neuroses

	Personality disorders

	Disassociative disorders, hysteria and bsomapoform disorders

	Factitious disorders.

Finally, there is a caution about malingering, which is stated to be the fraudulent imitation or exaggeration of symptoms.  

10.	It seems to me that it is inherently improbable that any further general category will be forthcoming.  I emphasise the word “general” in the expression I have used above, “general compass”.  It seems to me that the list is all embracing and, while I admit it is not writ in stone, nevertheless what Commissioner Levenson said in para 8 of the Appendix as to the extension of medical knowledge is, in this context, I feel a possible overstatement.  But it is with his statement in para 10 of CDLA/15892/96 that I, like Mr Commissioner May in RDLA(2/00) take issue.  The claimant has in this context to show he is mentally disabled.  The section says that.  By that, as I have already pointed out, I think must mean that he suffers from some mental disorder.  What is or is not a mental disorder can only be judged according to the professionally accepted opinion of the time – and not by mere, and possibly amateur, conjecture.  Such expressions as “as mad as a hatter” no longer, have any validity even if they ever had.  It seems to me that the question in effect boils down to more a question of proof than anything else.  With physical disability, this is usually easy e.g. broken leg, cancer, asthma, but mental disability has always, by its very nature, been difficult and has presented a different kind of problem.  Whereas a physical disability may be obvious and all that is normally required is an assessment of the likely impact, mental disability is not, and, normally, but not necessarily, requires professional evidence to be adduced to show that the condition falls within a particular yardstick.  The question to be asked is, “In what way is the claimant mentally disabled?”  That to my mind must require a diagnosis of a particular mental disorder in order to be answered.  I fully admit that a diagnosis can point to disability (a), but at the same time an indication that it might in the alternative be (b) or (c).  That is acceptable so long as (a), (b) and (c) each come within one or other of the general categories of mental disorder.  Once one accepts that mental disability in this case is equated with suffering from a mental disorder, a diagnosis is required.  How else could it then be proved whether or not a claimant is mentally disabled?  

11.	My decision is therefore as set out in para 1 above.

					(Signed)	J M Henty
							Commissioner

					(Date)		2 January 2002