The Social Security and Child Support Commissioners




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CSDLA 265/97
Starred 10/98

The Social Security and Child Support Commissioners


SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT 1992
SOCIAL SECURITY ADMINISTRATION ACT 1992

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



DECISION OF THE SOCIAL SECURITY COMMISSIONER

Claim for: Disability Living Allowance
Appeal Tribunal: Kirkaldy DAT
18 December 1996

[ORAL HEARING]

1. This claimant's appeal succeeds. I hold the decision of the Kirkcaldy disability appeal tribunal dated 18 December 1996 to be erroneous in point of law and accordingly I set it aside. I remit the case to the tribunal for determination afresh in accordance with the directions which follow.

2. In 1994 the claimant sought and obtained an award of disability living allowance.The effect after an appeal was receipt of the higher rate of the mobility component and the middle rate of the care component. The award was finite for two years until September 1996. In early 1996 the claimant lodged a renewal claim. An adjudication officer considered the matter and disallowed both components, completely, from the renewal date. The claimant?sought a review of that decision but the reviewing adjudication officer's decision was to the same effect. The claimant appealed to the tribunal.

3. The tribunal awarded the care component at the middle rate, on the day criterion for a further two years - that is from September 1996 to September 1998. The tribunal refused to make any award of the mobility component upon the basis that the claimant's mobility problems were not caused by physical factors. The claimant now further appeals to the Commissioner, with my leave.

4. At the request of the claimant's representative, there was an oral hearing. The request for it to be in private was refused. At the hearing the claimant was represented by Mr. Cobb, Advocate, and the adjudication officer by Mr Neilson of the Office of the Solicitor in Scotland to the Department of Social Security. I am indebted to Mr Cobb for his careful and?marshalled submission - from which in the event Mr Neilson did not really dissent.

5. Mr Cobb presented his submission under four heads - first, that the tribunal had failed to state adequate reasons; second that no properly directed tribunal could have reached this tribunal's decision; third that the tribunal had made an erroneous statement of the law and, finally, that the tribunal had failed to observe the rules of natural justice in the course of the appeal.

6. The last head related to a contention that the tribunal had failed to exclude expressly from their consideration a report by a Dr Mumford which he had withdrawn prior to their hearing. The report in question was dated 22 May 1996, and is to be found at documents 90 and 9l of the bundle. By a letter dated 21 August 1996, document 103 of the bundle, Dr Mumford said that if there was a discrepancy between his earlier letter and a report prepared by a Dr Lueck then the latter was to be preferred. That was a reference, as I understand it, to the report at documents 107 and 108 of the bundle. Since, however, nothing is said in the tribunal decision specifically mentioning Dr Mumford, or his views, the normal construction would be that the tribunal had no paid attention to it - no doubt because of the withdrawal. I would not have interfered with the tribunal decision upon that ground and so I say no more about it other than to direct the new tribunal not to attend to anything said by Dr Mumford as so far recorded in the papers.

7. I continue to deal with the submissions by Mr Cobb in reverse order for simplicity of direction to the new tribunal. The third head amounted to a contention that the tribunal had. misdirected itself in law by failing to consider whether the claimant had been entitled to the mobility component of the allowance under section 73(l)(d) of the Social Security Contributions and Benefits Act 1992. No findings or reasons were recorded in that regard. The statutory provision cited relates to the ground for an award of the lower rate of the mobility component. Whilst the higher rate can only be awarded if there is a physical disablement involved, the lower rate may be awarded if there is either a physical or a mental disability so long as, on either approach, the particular claimant cannot take advantage of such abilities as he or she may have to walk:-

"...out of doors without guidance or supervision from another person most of the time."

Mr Cobb's contention cannot be wholly upheld, because in their reasons, having dealt with the higher rate conditions, the tribunal said this:-

"None of the other heads of section 73 are satisfied in respect of an award of the Mobility Component in [the claimant's] circumstances because she is not mentally impaired, does not have severe behavioural problems nor does she need supervision from another person out of doors because she is so disabled physically or mentally to enable her to take advantage of any ability to walk."

That is an indication that the tribunal had at least attempted to consider the provision in question But the passage quoted says little more than that, in terms of the legislation, the claimant does not satisfy the provisions. There are no findings of fact, one way or the other, related to this claimant's possible ability, or otherwise, to take advantage of the faculty of walking out of doors nor whether guidance - because only supervision is mentioned in the reasons - may or may not then be required from another person. Indeed, in the findings there is nothing about supervision either. The new tribunal are directed to consider this aspect of the matter carefully and to assess, bearing in mind the normal meaning of the words, whether either or both of guidance and supervision may be required when this claimant is seeking to walk out of doors and then to assess whether that guidance/supervision is required for "most of the time" - which means, of course, most of the time when the claimant is seeking to walk out of doors. The best approach is probably to seek to determine the extent to which the claimant could walk out of doors and to discover what problems or difficulties she might?encounter if doing so alone. The question may be more easily resolved and the answer explained if findings on these matters are first made.

8. This brings me back to the first two heads advanced by Mr Cobb which, in detailed submission, became amalgamated. The first branch of this argument, the first head of submission, was that the tribunal had failed to state adequately their reasons for rejecting evidence by a Dr Weir and further that they had failed to state reasons for taking into account the decision of an Adjudicating Medical Authority (AMA) which had taken place subsequent to the date of the decision of an AMA to which they did refer. The second, and more general, head of submission was that the tribunal had misdirected itself in failing to consider whether there was really no evidence of any physical basis for the claimant's walking difficulties. These submissions I broadly accept.

9. The tribunal's findings of fact noted that the claimant suffered from chronic fatigue syndrome (CFS) as well as some low back pain with some lost spinal function. It was the former, however, which appeared to cause the main problem. The tribunal went on to find that there was a strong element of psychological overlay for the claimant's condition. They further found that her:-

"...mobility is restricted. Her mobility problems are not caused by physical factors."

They did not record as findings of fact, however, what were the mobility problems which they found did affect the claimant. Nor are there any findings as to whether or not the loss of spinal function had any effect upon the claimant's walking ability in terms of the legislation. It will be for the new tribunal to assess these matters, if appropriate detail is put before them. The old tribunal in their reasons explained their conclusions thus:-

"All the evidence submitted by [the claimant's husband on her] behalf points to thedysfunction being largely psychosomatic because the physical reasons shown to exist are not sufficient to render her virtually unable to walk."

That focuses the problem because the physical reasons shown to exist are not clearly recorded as such. In short, the need for the new tribunal will be to record, as already indicated and in detail, exactly how the claimant's ability to walk is limited or affected and then relate these, as the evidence may persuade them, to the loss of spinal function or to CFS.

10. The tribunal reasons next noted:-

."..a Medical Appeal Tribunal on 12.6.95 found [the claimant] was 15% disabled as a?result of her spinal functions for the period 4.7.94 - 11.6.96. The Medical Appeal Tribunal found her 40% disabled by the chronic fatigue syndrome making an assessment of 55% in all for the above period."

But it falls to be noted that the medical appeal tribunal had itself held chronic fatigue as part?of the ciaimant's loss of faculty. It is clear from their reasons - at document M1 - that that specialist body regarded the chronic fatigue symptom complex which the claimant had?sustained as having some physical basis and as having been caused by the relevant accident. The AMA to which the tribunal did not refer, of later date, and as recorded in a letter at documents 111 and 112 of the bundle, made a provisional assessment again at 55% because of the loss of faculty. That loss of faculty was described as -

"...reduced and painful movement of spine, painful range of movement or muscles."

Then it was stated, by the benefits agency in the letter, that "loss of faculty" meant some loss of power or function to an organ of the body. That evidence before the tribunal with whose decision I am concerned certainly warrants Mr Cobb's comment that they had failed to appreciate the totality of the AMA evidence, which included that of the medical appeal tribunal, and there is no explanation as to why the latest of such evidence was rejected nor, indeed, is there any indication that the tribunal appreciated that the medical appeal tribunal findings might have meant that they had accepted the chronic fatigue syndrome complex as involving a physical disablement- even if only, as the AMA pointed out, amounting to a painful range of movement of all muscles.

11. This brings me to what I think is the central issue in this case, namely the tribunal's rejection of CFS as amounting to a physical disablement for the purposes of section 73(l)(a) when applying the "virtually unable to walk" test thereanent. I suspect_the answer may be already reflected in the previous paragraph wherein at least the AMA seems to have accepted that whether or not the chronic fatigue syndrome itself was physical in nature it produced physical consequences, so far as muscle movements were concerned, which in turn caused pain. Those movements, being undoubtedly physical, would be enough to satisfy the statutory test. Before proceeding further, I should record that I have a considerable sympathy for the tribunal whose decision is before me because the matter is undoubtedly complicated and I have no doubt that their failure to properly analyse the evidence was in part caused by the pressures under which such tribunals operate. Then there is the contrast between the evidence which was simply put before them and the meticulous analysis of it which was deployed before me.

12. I have already noted enough to indicate that the tribunal took the view that CFS was, of itself, non-physical. They justified that by reference to the report of the examining medical practitioner (EMP), at document 21, that the claimant was suffering from a neurotic illness. That doctor may have had the distinction in mind, referred to in the previous paragraph, when, at document 22, he recorded his view in these words:-

"I believe her somatic symptoms are true, but their cause is neurotic.


She remains disabled by her symptoms, whatever their cause."

That was from a report prepared for the purposes of the earlier award and it is not clear whether the tribunal appreciated that. The tribunal seem to have been heavily influenced by material related to the original claim because they went on to record that another EMP, Dr Robson, even earlier had been of the opinion that the claimant's:-

"disability may well be psychosomatic in origin and he could find no physical signs to explain the severity of her condition."

They then refer to one of the medical witnesses for the claimant, Dr Weir, but record only that in his report he stated that:-

"..there is no full scientific argument describing a biological sequence of events reacting from physical injury to the development of chronic fatigue syndrome yet available."

That, of course, related to the connection between the original industrial injury and the CFS. Nonetheless they noted that Dr Weir did link the onset of the CFS to that injury. But then the tribunal referred to the hospital test papers and observed that:-

"None of them show a physical reason as being the course of [the claimant's] chronic fatigue syndrome."

They then sumed the matter up by saying that they concluded that the claimant's mobility problems have not been shown to have a physical cause and they noted the Disability Living Allowance Board's recent advice that it is not proven that CFS has a physical cause. The problem thus becomes focused. The tribunal seem to have been looking to see whether it had been established that the claimant's painful conditions were in turn caused by something physical - which in the last analysis is probably inevitable although that it may be getting too metaphysical. They do not seem to have focused upon whether the symptoms - that is to say the pain suffered - was genuinely being suffered in the relevant muscles. If so, it is difficult to see how, whatever may have been the underlying cause of that pain which was and is restricting the claimant in walking, that restriction was not a physical disability. But that is not an end of the matter as the fuller evidence, unreferred to by the old tribunal, tends to demonstrate. I now turn to that evidence.

13. In the first place, as Mr Cobb pointed out, there is material from Dr Lueck and/or Dr Davenport at documents 107, 108 and 1 10 which seems to contradict the EMP's view that the claimant simply had a neurotic illness. At the least that material tends to indicate that her CFS had been trauma caused. Indeed, at document 108, there is a suggested diagnosis of the involvement of fibromyalgia - which may or may not, according to the same document, have some causative link to tenderness if not also pain. Then there is the opinion of Dr Weir, a consultant physician who appeared to have some particular knowledge and experience of the syndrome, at document 115, where he opines upon the possible causal connection between an accident and the condition. After examination of the claimant he goes on to provide a full medical report at documents 118 to 122. There he seems to harden his view that there is a causal connection in this particular case between the trauma and the development of CFS. There is considerable evidence therein of the pain and other symptoms suffered by the claimant. He observes against there being a depressive component to the condition in this case and then at document 123 he opines that the syndrome:-

"... has an organic basis is now undisputed, particularly with reference to the immunulogical disturbances seen, together with consistently recognisable?abnormalities of the hypothalamic-pituitary-adrenal axis.


........the view, once held, that it was an atypical form of depression, is now no longer valid."

In the previous report, at document 122, appears the passage founded upon by the tribunal which is, in full:-

"The question remains as to whether the accident she suffered should be treated materially to the development of an illness. There is a clear temporal relationship between the onset of her CFS and her accident; from experience with other patients which this same sequence of events (following physical trauma), it is very difficult to assert that the two events are purely coincidental. Furthermore, other physicians working in this field, both in the United Kingdom and elsewhere, have observed this relationship in some of their patients.

Conversely, the full scientific argument describing the biological sequence of events leading from physical injury to the development of CFS is not yet available. Nonetheless, in my view, the balance of probability favours the proposition that there is a causal relationship between the physical trauma [the claimant] suffered and the development of her CFS. I am also certain that within the next 5 years, when more is known about the genesis of this condition, this proposition will be validated by full scientific proof."

In context, as it seems to me, what the tribunal were taking as supporting their conclusion about a non-physical disability in this case came from a passage dealing with the causal connection of physical injury which, in any event, the consultant physician was adamant to exist in this case. I suspect that the tribunal did not fully appreciate what Dr Weir was seeking to demonstrate in his opinion: in any event, as a matter of law, they were not entitled to take the passage quoted as supportive of their conclusion. The issue before them was about a physical disability and the passage quoted from document 123 seems to have been overlooked and was, in any event, against the tribunal decision. Its rejection, if it was rejected, has not been explained. Either way there is an error of law.

14. I rather suspect that Mr Cobb may also be right when he submitted that the appeal tribunal had had regard to the advice of the Disability Living Allowance Board and their conclusion that it was "not proven" to have a physical cause. There was therefore a tendency, he suggested, for the tribunal to discount the contrary evidence. But of course that evidence coming, as it did, from a consultant in his own right and appearing to have some particular experience of the condition, required to be properly weighed and, if to be rejected, that rejection required to be properly based and explained. This was not done. In short, I tend to suspect that this tribunal picked passages in the evidence that they took to support the Board's view without giving the whole evidence the full assessment which it deserved. That is another aspect of their error of law.

15. Mr Cobb advanced other criticisms, of less importance, of the tribunal decision. I do not think I need to rehearse them. I am quite satisfied that the tribunal decision is inadequate in its findings in fact and that its reasoning does not explain what they made of the whole evidence, in particular the evidence favourable to the claimant and produced on her behalf, as it should have done. That is the fundamental error of law made by the tribunal.

16. The real question for the new tribunal may well depend upon the question discussed above which, as it seems to me, has somewhat lurked behind both the evidence taken into account by the old tribunal and the submissions made at the hearing before me. That concerns a prior determination as to whether the muscle pains and other physical problems which limit the claimant's walking, and might be thought to require either guidance or supervision, or even ultimately to amount to a virtual inability to walk in the sense of regulation 12(1)(a)(ii) of the Social Security (Disability Living Allowance) Regulations 1991, are or are not mental, illusory or imaginary. If they are then they can not be physical disabilities. If they are not then they can be physical disabilities. I so direct the new tribunal. I gain some support for this direction from the passage quoted by Mr Cobb from paragraph 5?of decision CDLA/1954/95 by Mr Commissioner Henty where he observed that:-

"...to exclude the claimant from benefit under s73(1), it was necessary for the Tribunal to have made a finding that, in the claimant's case, her ME [now CFS] was in fact - wholly mental" [My emphasis].

The need to determine anything more, such as whether they are in turn caused by a physical condition, such as a virus, a lesion or a malfunction, may matter little for the purposes of section 73 of the Act. If, however, the new tribunal is persuaded to entertain that further issue then they will have to bear carefully in mind Dr Weir's, and the other supporting, views tending to indicate that CFS nowadays falls to be regarded as organic and so physical inorigin. I further direct the new tribunal to that effect.

17. The appeal is allowed and the case remitted accordingly.

(Signed)


W M Walker
Commissioner

12 February 1998


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