Tribunal of Commissioners 25 November 2005
Case Nos CDLA/2879/2004 and CDLA/2899/2004
164.First, the tribunal ought expressly to have stated what significance it attributed to the opinion of Mr Dekker, confirmed by Professor Luxon and in effect repeated in the GP’s report, that the claimant was suffering from uncompensated peripheral vestibular disorder. That, as Dr Ford’s evidence makes clear, is a physical disorder of the mechanism in the inner ear, and appears to be an acceptable diagnosis even though it is unspecific as to precisely what is wrong and even though it was in this case, in Dr Ford’s words, “to some extent a diagnosis of exclusion.”
165.The tribunal’s crucial statement in its paragraph 7 that it “found that as specialists had found no organic cause for her dizziness despite intensive investigations there was no physical disablement that could result in an award of higher rate mobility component” is clearly a reference back to the last sentence of paragraph 5. There the statement that no organic cause for the dizziness had been found is supported by reference to two entries in the claimant’s medical notes. The first (in time) is the letter dated 7 February 2002 from a Dr Lopes (whose speciality does not emerge), which does state that none of the specialists had been able to find an organic cause. The second, however, is the letter dated 8 May 2003 from Mr Dekker, which contains the two references to uncompensated peripheral vestibular disturbance (or disorder). Mr Dekker was of course one of the specialists who had investigated the claimant in 1996 and 1997 and who were therefore being referred to by Dr Lopes in his letter. Although the tribunal had, in paragraph 5, quoted what Mr Dekker had said in that letter (albeit while seemingly wrongly attributing it to the GP), it did not in paragraph 7, as in our view it should have done, state what significance it attached to it. Read in the light of it, Dr Lopes’ statement arguably meant merely that no specific organic cause had been precisely identified. The tribunal should have considered whether there was nevertheless, on the balance of probabilities, some disorder of the vestibular system.
166.We would make the general comment, in the light of Dr Ford’s evidence, that as in the case of back pain (see paragraph 145 above) it may well be that tribunals have in the past been too ready to conclude that the fact that no specific and precisely identified organic cause for persistent dizziness has been found means that there is not in fact an organic case.
167.Secondly, apart possibly from the one reference in the letter dated 8 May 2003 from Mr Dekker to “uncompensated peripheral vestibular disorder with psychogenic overlay” there was no diagnosis of any specific mental disorder. The tribunal appear to have accepted that the claimant’s symptoms of dizziness were genuinely experienced. In those circumstances the tribunal, before concluding that those symptoms did not have an organic cause, ought in our judgment expressly to have considered whether it was likely that the cause was mental or psychological. The tribunal’s finding that there was no organic cause implied that that was so, but in the absence of a diagnosis of mental disorder the tribunal ought expressly to have considered the point.
168.Thirdly, the ground on which the tribunal superseded the award of the higher rate of the mobility component was that the Department had made the decision “in ignorance of the material fact that investigations had not found an organic cause for [the claimant’s] dizziness, as it was not in possession of GP notes until Mr McDonald [then the claimant’s representative]
169.Nevertheless, the general point which the tribunal was intending to make was that the original awarding decision was made in ignorance of the material fact that there was no organic cause for the claimant’s dizziness (or alternatively in the mistaken belief that there