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Tribunal of Commissioners                                                                                                    25 November 2005

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

(at paragraph 6):

“It may be that in the last analysis all mental disablement can be ascribed to physical causes.  But, if so, it is obvious that the Act in drawing the distinction between physical and mental disablement did not mean this analysis to be resorted to.  In the case of the subject of Decision R(M) 2/78 a medical appeal tribunal were concerned with a claimant who suffered from Down’s Syndrome, sometimes called mongolism.  The effect of the condition on that particular claimant was that he often refused to walk. The medical appeal tribunal decided that the nature of Down’s syndrome was such that it was a form of physical disablement and held that the claimant satisfied the medical conditions for an award of mobility allowance.  The Secretary of State appealed but the Commissioner held that it was for the medical appeal tribunal to determine what was a physical, and what was not a physical, cause of inability to walk and that their decision could not be disturbed.  A converse case where a medical appeal tribunal decided that agoraphobia was not a physical condition occurred in Decision R(M) 1/80 and again it was held that the medical appeal tribunal decision could not be disturbed.  I do not see how I can reach a different conclusion in relation to hysteria.  This does not mean that in every case of hysteria the medical authorities are bound to hold that a claimant’s hysteria is not a manifestation of his physical condition as a whole; but it does mean that if they do so find it will be impossible to disturb their decision on the ground that they ought to have found it to be a manifestation of the claimant’s physical condition.”

90.The claimant’s appeal against that decision was dismissed by the Court of Appeal.  O’Connor LJ delivered the leading judgment (with which both Lloyd and Stocker LJJ agreed).  He began by indicating that the short point raised by the claimant was “whether his inability to walk, about which there is no doubt, which is due to hysteria, falls within the provisions of the legislation.  The Medical Appeal Tribunal, agreeing with the Medical Board, came to the conclusion that this man’s inability to walk was due solely to hysteria and therefore did not fall within the provisions of the relevant statutory wording.”  

91.He then summarised the factual background (in the terms noted above), set out the statutory provisions and quoted extensively from the Commissioner’s decision under appeal, concluding with the whole of the passage from paragraph 6 which we have set out above. O’Connor L.J. said: “For my part I agree with the approach which the learned Commissioner made to this problem.  It seems to me that he directed himself on the facts of this case entirely correctly.”  Then, having said that nothing in the Lees case touched on the problem in this case, O’Connor L.J. continued:

“Mr Herbert, who has put his argument very effectively, has submitted that here is a man who is in a wheelchair.  If one asks oneself, “Is that a physical disability?” he says the answer would be, “Yes. He has got a disability that he cannot walk.” “Is walking a physical activity?” “Yes, it is.” “Is he unable to walk as a result of a physical disability?”  He submits that the answer should be “Yes”, no matter what the underlying reason of his inability to move his legs may be.

In my judgment that is not the correct interpretation of the words of the statute.  Section 37A, as I have already said, requires that the person should be suffering from “physical disablement” such that he is either unable or virtually unable to walk.  The inability to walk is not itself the physical disablement.  There must be some physical disablement

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