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Tribunal of Commissioners                                                                                                    25 November 2005

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

58.This fits with Harrison v The Secretary of State for Social Services.  It underlies the change in opinion with respect to conditions like autism.  The immediate cause of restricted walking in such claimants is usually behavioural problems, such as lying down, holding on to an object, refusing to walk.  In the past, such claimants failed to be awarded higher mobility.  Now, however, it is recognised that autism is due to a chromosomal abnormality so that the necessary physical disablement is accepted.

59.Alternatively, a claimant may for example have physical back problems and also depression.  If depression is due to her physical condition, at least in part, or if her physical condition is a material cause limiting her walking, albeit exacerbated by unconnected depression, then a tribunal is entitled to find that any resultant walking difficulties are due to her “physical condition as a whole.”

60.It follows that, provided a clinical abnormality is an essential link in the chain of difficulties which result in restricted mobility, and still exists, it does not matter at which stage of the chain it comes….”

This case (like R(M) 2/78) consequently focuses upon the cause of the condition resulting in the disability, rather than the effects or manifestation of that condition.

19.Whilst most cases broadly come down in favour of one approach or the other, some have attempted a middle course.  For example, in CDLA/5463/99 Mr Commissioner Jacobs seems to have taken what amounts to something of a hybrid view in holding that, while physical effects of a mental disorder do generally qualify as “physical disablement”, pain is not physical disablement for this purpose.

The Construction of the Relevant Statutory Provisions  in the absence of Harrison

20.For the reasons we set out below (paragraphs 86 to 101), we consider that we are bound by Harrison to hold that the Secretary of State’s submission (set out in paragraph 15 above) is correct.  However, before explaining why that is so, we shall consider the conclusion to which we would have come in the absence of Harrison.  We consider that it is important to do so for three reasons.  First, consideration of the merits of the relative arguments enables the question Harrison to be better addressed.  Second, on the footing that Harrison does determine the outcome of the main issue, other issues (relating primarily to causation) potentially arise, on which guidance needs to be given, both in the present cases and more generally.  Third, these appeals may go further, in which case the court may find our views of assistance.

21.We deal with the relevant issues under seven headings (A-G below).

A.History of the Current Provisions

22.In support of their contentions, each party relied to some extent on the history of the current provisions.

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