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Tribunal of Commissioners                                                                                                    25 November 2005

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

The Commissioners’ Jurisprudence

16.As we have already indicated, there is a considerable volume of Commissioners’ cases bearing on the issue before us.  We need not refer to all of these, but we should give an indication of the spectrum of opinions expressed.

17.Mr Kolinsky for the claimant Mr B relied in particular on CDLA/948/2000 and CDLA/3323/2003.  These authorities concentrate upon the effects or manifestation of the claimant’s medical condition as the relevant criteria for the test.  In the former case Mr Deputy Commissioner Mark, after reviewing the authorities, said (at paragraph 22):

“If a person is in such pain that she cannot bear to be touched and cannot put one foot in front of another without agony, I find the greatest difficulty in seeing how this can be said not to be part of her physical condition because there is no physical cause for the pain. I consider that a physical symptom, if genuine, is part of a person’s physical condition as a whole even if caused by psychological factors, whether it is pain, paralysis or something more mundane such as a skin rash…  It therefore appears to me that..., as a matter of law, construing section 73 and regulation 12, genuine physical pain is part of a person’s physical condition even if caused by, or a symptom of, psychological factors.”

In CDLA/3323/2003, Mr Commissioner Rowland said (at paragraph 15):

“Like Mr Commissioner Walker in CSDLA/265/1997 I have difficulty seeing how pain or paralysis cannot be part of a person’s physical condition even if they are induced by a mental disorder. “

18.Mr Maurici for the Secretary of State relied in particular upon a decision of Mrs Commissioner Parker in CSDLA/894/2001 as setting out broadly the correct approach.  In paragraphs 56 to 60, the Commissioner said (under the heading, “The Correct Test”):

“56.At its most basic level, “physical” means “of or concerning the body” and “mental” means “of or in the mind”.  It is difficult to see how any restriction in walking does not have a corporeal element.  Even the agoraphobic is physically affected by the psychiatric condition.  He or she may be able to move freely when indoors but cannot move out of doors.  It goes without saying that a claimant’s complaint has to be genuine. The person who fakes pain or breathlessness or paralysis unarguably does not succeed.  But a scientific basis for a contrast between psychosomatic pain and mental, illusory or imaginary pain is hard to comprehend, insofar as the results affect walking.  If the mental problem is unrelated to a bodily symptom or function then it is not psychosomatic, but equally it cannot affect walking which is a physical activity.

57.What then is meant by “physical disablement” as a limiting factor for higher mobility?  In the context of physical disablement such that the claimant is unable or virtually unable to walk, as compared with a mental disablement having the same result, it seems imperative that there is current organic abnormality, objectively verifiable, which is a necessary link in the causal chain which restricts the claimant’s walking to the required degree.

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