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Tribunal of Commissioners                                                                                                    25 November 2005

Case Nos CDLA/2879/2004 and CDLA/2899/2004

whose physical symptoms derive from a mental condition are just as deserving as those whose similar symptoms derive from a physical condition.   Mr Maurici did not suggest that there was any rationale for such a distinction.  We agree that it is not apparent why claimants who are in fact unable or virtually unable to walk should be treated less favourably because their disability is mental rather than physical in origin.

45.However, the benefits system sometimes does define broad categories of entitlement that inevitably exclude the apparently deserving from particular entitlement.  It may have been that the test of physical disablement or physical condition as a whole was thought (as it appears, over-optimistically) to provide a broad and relatively straightforward way of identifying a group which ought to qualify while recognising that equally deserving individuals would be excluded.  In terms of assisting us to construe the relevant statutory provisions, we do not consider that this submission carries particular weight.

46.Nevertheless, the overarching purpose of DLA (i.e. to assist people with disabilities to cope with those disabilities insofar as they affect their functional ability to care for themselves or be mobile) is not in our view irrelevant.  It was an important factor in the significant Tribunal of Commissioners’ decision CDLA/1721/2004, which bears on the issue now before us and which we consider below (paragraphs 62 to 65).

C. The Relationship between Section 73(1)(a) and Regulation 12(1)(a)

47.The relevant provisions are set out in full in paragraphs 9 and 10 above.  Section 73(5) provides that “circumstances may be prescribed in which a person is to be taken to satisfy or not to satisfy a condition mentioned in subsection (1)(a) or (d) above”.  Regulation 12(1) provides that “a person is to be taken to satisfy the conditions mentioned in [section 73(1)(a)] only in the following circumstances (a) his physical condition as a whole is such that… he is unable to walk…[etc]”.  

48.In his skeleton argument Mr Maurici submitted that, although regulations made under section 73(5) could limit the scope of section 73(1)(a), they could not extend it.  We note, in this connection, that in Lees v Secretary of State for Social Services [1985] AC 930 at page 933D Lord Scarman described the power in what is now section 73(5) (which he found “startling”, although “by no means unprecedented”) as a power “to set a limit to the scope of an enactment”.  However, Mr Maurici accepted in oral argument, in our judgment rightly, that it would have been within the section 73(5) power to make a regulation expressly stating that physical manifestations resulting from a mental condition should be regarded as physical disablement for the purpose of section 73(1)(a).  Section 73(1)(a), in referring to “physical disablement such that...”, does not so clearly exclude physical manifestations resulting from a mental condition that a regulation expressly stating that they should be treated as physical disablement would be ultra vires.  In our view, therefore, if the phrase “physical condition as a whole is such that” in regulation 12 includes physical symptoms resulting from a mental condition, no objection could be taken on the ground of vires.  We therefore do not need to consider the merits of the specific submission made in Mr Maurici’s skeleton argument.

49.We consider the relationship between section 73(1)(d) and regulation 12 to be as follows.  First, in our view it is the wording of regulation 12(1)(a) (i.e. “his physical condition as a whole is such that ………”) which governs qualification.  That follows from the terms of section 73(5) and of the opening words of regulation 12(1)(a).  A claimant is to be taken to satisfy the conditions in section 73(1)(a) when the conditions in regulation 12(1)(a) are met.

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