Tribunal of Commissioners 25 November 2005
Case Nos CDLA/2879/2004 and CDLA/2899/2004
for the purposes of social security benefits (principally incapacity benefit and income support). Under that test, a claimant is only able to obtain points for difficulty in performing physical activities (such as, for example, walking) if his incapacity “arises… from a specific bodily disease or disablement”, and can only obtain points under the mental health descriptors if his incapacity “arises… from some specific mental illness or disablement” (regulation 25 of the Social Security (Incapacity for Work) (General) Regulations 1995 (SI 1995 No 311)). However, it is perhaps noteworthy that the references are not simply to “disablement”, but to “bodily disease” and “mental illness” as well.
78.If the inability or virtual inability to walk must have a physical cause, a further fundamental difficulty in adjudicating on claims is that of determining the cause of the claimant’s walking problems as a matter of fact. This difficulty can become particularly acute where, as is often the case, a claimant has some conventional physical disorder (e.g. a disc problem), but owing to psychological problems (or “psychogenic overlay”) experiences physical symptoms to a substantially greater extent than would otherwise have been the case. The appeal tribunal in Mr B’s case before us found that that might well be so in his case. Below we consider further the difficult issues of causation which potentially arise where there are concurrent physical and mental causes below (see paragraphs 102 to 121).
79. It may be an inevitable consequence of the system of social security adjudication that different decisions are made about claimants in identical circumstances, because of the necessary areas of judgment given to decision makers and appeal tribunals in the evaluation of evidence as to the effects of a claimant’s disablement and in the application of loosely defined conditions of entitlement (see the speech of Lord Hoffmann in Moyna at paragraph 20, and paragraph 67 above). But it is quite another matter to contemplate differences in result between claimants in identical circumstances depending on differing views taken by different decision makers and appeal tribunals on matters of general medical and scientific theory and on issues bordering on the philosophical.
80.Further, there are potential practical and ethical problems in requiring a claimant to undergo medical investigations - which may be intrusive - purely for the purpose of obtaining evidence to satisfy the conditions of entitlement to benefit.
81.There is therefore a substantial issue as to whether Parliament could have intended that the satisfaction of conditions of entitlement to benefit should depend on the results of sophisticated and possibly intrusive medical investigations, and on the chance of whether such investigations have been carried out for any particular claimant.
82.As we indicated in paragraph 49 above, we consider the governing wording to be that of regulation 12(1)(a), i.e. 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]”. However, the phrase “physical condition as a whole” is to be construed against the background that regulation 12(1)(a) specifies when a claimant will be considered to be suffering from “physical disablement” such that he is unable or virtually unable to walk.
83.We acknowledge that, looking simply at the natural meaning of regulation 12(1)(a) as one of impression, it is arguable that physical manifestations of a mental condition are not