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Tribunal of Commissioners                                                                                                    25 November 2005

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

part of a person’s “physical condition as a whole” (and do not constitute “physical disablement”).  That, indeed, seems to have been what led the Court of Appeal in Harrison to reach the conclusion that, although the claimant’s hysteria rendered him physically incapable of walking more than a few steps, he did not qualify for mobility allowance.

84.However, in the absence of Harrison, in the light of A to F above we would have considered the intention and effect of regulation 12(1)(a) to be that the inability or virtual inability to walk must be the result of an impairment of the claimant’s physical functional capacity and that it is not necessary for the claimant to show that the impairment has an identifiable physical cause.  Given that the phrase “so severely disabled physically or mentally” in sections 72 and 73(1)(d) focuses on the claimant’s functional capacity and not the precise medical cause of that incapacity, we would have been reluctant to conclude that a different approach is adopted in the references to “physical condition as a whole” and “physical disablement” in regulation 12 and section 73(1)(a) respectively (see Section E above).  The factors discussed in Sections B and F above also favour that conclusion, with those in A and C being in our view broadly neutral, although if anything pointing the same way (see paragraphs 38 and 52 above).

85.Thus, in the absence of Harrison, where a claimant suffers from physical symptoms or manifestations of a medical condition (whether that condition be physical or mental), we would have held that it is unnecessary for him to show an identifiable physical cause for those symptoms or manifestations to satisfy the conditions for entitlement to higher rate mobility component of DLA under section 72(1)(a) of the 1992 Act and regulation 12 of the 1991 Regulations.

Is Harrison Determinative?

86.However, Mr Maurici submitted that, whatever our own view of the construction of the relevant statutory provisions might be, we were bound by the Court of Appeal decision in Harrison.  It was pointed out to us that the decision of the Court appears to have been ex tempore, but that is of no moment.  If the case adjudicated upon the issue before us, we are of course bound by it.

87.None of the accounts of the claimant’s disability is detailed, but O’Connor LJ summarised it as follows:

“The appellant had an accident in 1979 when he fell off a crane and sustained a severe injury to his back.  As a result of that, after a year or so he had to have a laminectomy on lumbar 4/5, but he was left thereafter with a disability, namely that he had a “bizarre gait”, as it was described in the medical reports, and he was in a wheelchair.  He could move a few yards with the help of two sticks.”

88.The claimant was initially awarded mobility allowance until 1983, but his renewal claim was refused by a medical board, whose decision was upheld on appeal by a medical appeal tribunal.  The appeal tribunal found, crucially, “that the restriction in the claimant’s ability to walk is not due to a physical cause but is hysterical in origin.”

89.Mr Commissioner Monroe dismissed the claimant’s appeal.  On the ground relevant for us, it was submitted for the claimant that even if his condition was hysterically based it was still a manifestation of his physical condition as a whole.  As to that, the Commissioner said

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