Tribunal of Commissioners 25 November 2005
Case Nos CDLA/2879/2004 and CDLA/2899/2004
the same report as that on the basis of which mobility allowance was subsequently awarded) stating that the claimant’s inability to walk was not the result of hysteria, but of pain). It would seem that the report referred to might well have been asserting a continuing physical cause for the hysteria. Even if the penultimate paragraph of O’Connor LJ’s judgment can be regarded as approval of the basis of the adjudication officer’s subsequent decision, Harrison itself is of no assistance on this issue
119.The majority of this Tribunal (the Chief Commissioner and Mr Commissioner Turnbull) agree with Mr Maurici’s submission that, in order to prove that a functional inability is caused by a physical condition, that physical condition must be extant at the relevant time. On the footing that a physical cause is necessary - as we consider ourselves bound by Harrison to hold - in the view of the majority, the words of section 73(1)(a) (“… he is suffering from physical disablement such that”) and regulation 12(1)(a) (“his physical condition as a whole is such that…”) do not include the situation where at the date of the decision the walking difficulty is entirely due to psychological problems, even if those arose from a physical problem which has abated. The minority (Mr Commissioner Mesher) would have accepted Mr Kolinsky’s submission that, in such circumstances, if the original physical disorder is accepted as having made a material contribution to the causation of the claimant’s inability or virtual inability to walk (for example, through a contribution to psychological problems), that causative effect continues to exist so as to satisfy the terms of the legislation and the use of the present tense if those psychological problems continue to be a cause of inability or virtual inability to walk, even though the physical disorder itself no longer exists. It is of course the opinion of the majority that is to be followed.
120.For the avoidance of doubt, we should say that our conclusion as to the effect of Harrison does not mean that a claimant cannot be entitled to the higher rate of the mobility component if the origin of his walking difficulties was mental. If, for example, a claimant has, as a result of severe depression, been so inactive that his muscles have atrophied, with the result that he is virtually unable to walk, he clearly satisfies the condition of entitlement. The atrophied muscles are clearly a feature of his physical condition. We therefore agree with the general proposition formulated by Mrs Commissioner Parker in paragraph 60 of CSDLA/265/1997 that, provided a physical disorder materially contributes to the claimant’s inability or virtual inability to walk, it does not matter where in the chain of causation it comes.
121.Finally, as to the proper classification of conditions such as autism, Down’s syndrome and learning disabilities, and as to the extent to which mental disorders could be regarded as having a physical cause owing to genetic defects or changes in brain chemistry, those issues do not arise on the facts of the cases before us and were not the subject of any detailed submissions. For the avoidance of doubt, we should make it clear that we expressly refrain from expressing an opinion on these issues.
122.At the end of this decision we summarise our views on the legal issues of wider importance which have been raised in these appeals.