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Tribunal of Commissioners                                                                                                    25 November 2005

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

injuring his head.  Falls can be a consequence of dizziness, physical balance or pain.

Psychologically and emotionally [the claimant] is struggling.  He is very withdrawn with clinical depression and suicidal ideation.  He has episodes of self-harm with a preoccupation with negative images of himself and death.  He becomes angry, frustrated and irritated with a low tolerance of noise or any interruption to his solitude.”

130.On 24 September 2003 the claimant signed a renewal claim pack.  This was in very similar terms to that which had been completed in 2002.  The Department obtained a report dated 13 October 2003 from his general practitioner (“GP”) (to which we refer further below).

131.The Department also obtained a report from an EMP, dated 5 November 2003.  The EMP commented as follows in the section relating to examination of the limbs:

“Examination had to be limited as he said that any movement was painful.  He declined to rise from the bed to stand or walk.  Expressed discomfort leaning forward while I examined his chest.  No sign of arthritis in any joints.  No muscle wasting or spasm.”

132.The EMP marked the claimant as having full function of all limbs, save slight impairment of the left shoulder, and further commented as follows:

“Expressed pain on movement of left shoulder and did not raise arm past 30 degrees. Very little movement seen at legs, but no fluid on knees.  I note hard callus on soles of both feet.”

133.He expressed the opinion that the claimant would be able to walk only 10 metres before the onset of severe discomfort, at a very slow pace, in about 30 seconds.  In relation to gait and balance the EMP said, “Not seen”; and he said that the claimant would need an arm to lean on.  He considered that the claimant would need help with a substantial number of the activities involved in daily living.

134.In the section of the report headed “overall factors” the EMP wrote:

“This sort of presentation is common in DLA, but strangely I rarely see it in my practice.  Appeared ill at ease, both nervous, and in pain.  Breathing shallow and jerky. Unfortunately examination was more limited than I would like, but we have to be careful not to hurt people.  I suspect the statement is overstated, there are no hard physical signs supporting his claims, and neither can I fit him into a diagnostic category. I am not even sure where his pain is coming from.  However, it does affect him. I certainly can’t disprove function affected.”

135.On 18 November 2003 a decision was made on the renewal claim, awarding the higher rate of the mobility component and the middle rate of the care component, in each case from 22 February 2004 to 21 February 2006.

136.The claimant appealed, contending that he should have been re-awarded the highest rate of the care component.  The decision maker sought advice from the Department’s Medical Services as to the “reasonable level of night care or watching over requirements of this customer most of the time.”  A Medical Adviser advised as follows:

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