Tribunal of Commissioners 25 November 2005
Case Nos CDLA/2879/2004 and CDLA/2899/2004
60.Second, we consider that there are persons suffering from conditions such as agoraphobia who find themselves unable to walk in particular situations (e.g. out of doors) or at particular times, and who are therefore at least arguably virtually unable to walk, but who do not suffer sufficient physical manifestations preventing them from walking to enable it to be said, even on Mr Kolinsky’s construction, that their physical condition as a whole is such that they are unable or virtually unable to walk. That may have been the position in R(M) 1/80, where the finding of fact was simply that the claimant was perfectly able to walk indoors but was “in practice unable to walk outside the house.” There was no exploration in the case of what physical symptoms, as opposed to mental anguish, the claimant might suffer if she contemplated walking or attempted to walk out of doors, but it is by no means clear that all claimants with that form of disorder would necessarily suffer physical symptoms such as to render them unable or virtually unable to walk. It would still be necessary for a claimant to show that the inability or virtual inability resulted from the physical symptoms rather than the mental, although we suspect that in practice the drawing of such distinctions would be very difficult (see paragraphs 102 to 116 below).
61.Therefore, whilst we would accept that the absence of any reference in section 73(1)(a) or regulation 12 to mental disablement or mental condition is intended to have some limiting effect, Mr Kolinsky was in our judgment right in submitting that that does not assist in determining what that limitation might be.
62.The recent decision of a Tribunal of Commissioners in CDLA/1721/2004 concerned the scope of sections 72 and 73(1)(d) of the 1992 Act, and in particular the meaning of the phrase “so severely disabled physically or mentally”. Having reviewed the relevant authorities and statutory background, the Commissioners drew a distinction between “disability” and “medical condition”, saying (at paragraph 35):
““Disability” is conceptually distinct from “medical condition”. “Disability” is entirely concerned with a deficiency in functional ability, i.e. the physical and mental power to do things. Of course, a diagnosable medical condition may give rise to a disability. For example, a condition that inevitably involves the loss of a sense or a limb would give rise to an obvious diminution in functional capacity. But entitlement to DLA is dependent upon a claimant’s inability to cope with care and mobility without assistance and with his consequent reasonable care and mobility needs; and not upon the diagnosis of any medical condition. Even if a person has a serious medical condition in the sense that his life is imminently threatened - perhaps some asymptomatic heart condition - that person is not entitled to either component of DLA if the condition has no adverse impact on his ability to care for himself and be mobile without assistance. Conceptually and in ordinary language usage, “disability” cannot be equated with “medical condition”; and a “severe disability” is not the same as a “serious medical condition””.
The Commissioners went on to hold that there was nothing in sections 72 or 73(1)(d) that required “disability” to have any meaning other than its usual meaning, and that “disability” in the context of those provisions meant simply “functional deficiency” (paragraph 42). For the provisions to apply, the Commissioners said (at paragraph 39):