Tribunal of Commissioners 25 November 2005
Case Nos CDLA/2879/2004 and CDLA/2899/2004
(b)the exertion required to walk would constitute a danger to his life or would be likely to lead to a serious deterioration in his health.”
Whereas the statutory power was to prescribe the circumstances in which a person was or was not to be treated as suffering from physical disablement such that he was unable or virtually unable to walk, the original form of regulation 3(1), read literally, merely prescribed the circumstances in which a person was to be treated as unable or virtually unable to walk. It is therefore arguable that regulation 3(1) left untouched the statutory requirement that the claimant be suffering from physical disablement, so that the combined effect of the two provisions was that the claimant must be “suffering from physical disablement such that his physical condition as a whole is such that, without having regard to circumstances …”.
28.The Chief Commissioner, Sir Rawden Temple, considered these provisions in R(M) 2/78, only the second reported Commissioner’s decision in relation to mobility allowance.
29.The claimant was a 12 year old boy who suffered from Down’s syndrome (then described as “mongolism”) with a mental age of 2 years such that, although he was able to walk, he was (according to the findings of the medical appeal tribunal) “liable to run, stop, lie down and refuse to go further”. A later report of the case suggests that the boy had never in fact walked more than 30 yards (see paragraph 5 of the 1979 National Insurance Advisory Committee Report referred to below).
30.The medical appeal tribunal held that Down’s syndrome, although it impaired the claimant’s mental functioning, was a physical disorder because it was due to faulty genetic inheritance (i.e., as the tribunal said when refusing leave to appeal to the Commissioner, the physical malformation of chromosome 21), and that it was the boy’s reaction to this physical condition that stopped him walking. Therefore the claimant was virtually unable to walk because of physical disablement. On appeal to the Commissioner, the Secretary of State conceded that the claimant had a physical disorder but submitted that “physical disablement” meant an inability to execute a physical movement and not merely “disablement which has a physical factor in its causation”. The claimant submitted that consideration had to be given to his physical condition as a whole and the test was satisfied if his virtual inability to walk was attributed to “the physical condition as a whole, regarding the condition as causative in its entirety, and as disabling”.
31.The Chief Commissioner dismissed the appeal. He said that the medical tribunal had found that the claimant’s physical disorder (Down’s syndrome) was directly responsible for “reaction” which seriously impaired his mobility and continued:
“No doubt it was open to the medical appeal tribunal to have decided that what effectively prevented Robert from exercising any physical ability to walk was attributable to a mental state, stemming from but operating independently of any disabling physical condition. They did not do so. In so far as there was any mental element which prevented Robert from walking (he has an accepted mental age of 2 years) they attributed his virtual inability, not to conscious volition or mental disability, but to “reaction” itself directly due to his physical condition. I read their decision as concluding that a physical factor was present throughout in the causation of his inability to walk.