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Tribunal of Commissioners                                                                                                    25 November 2005

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

I think it is plain that the medical appeal tribunal regarded Robert’s physical condition as a whole as being a disabling condition, preventing him from doing the particular action of walking.  The weight to be attached to physical and mental disablement in cases where both factors may be present is for the medical authorities to decide, and the answer to the question whether the one or the other, or both, are responsible for an inability or virtual inability to walk is for their decision as a medical question.  I do not consider that the medical appeal tribunal misapprehended what physical disablement means, or that it can be said that they were wrong in law in concluding from their findings that it was physical disablement which was responsible for his virtual inability to walk.”

32.The Chief Commissioner thus appears to have adopted a test of looking at the effective cause - or an effective cause - of the difficulty in walking, and held that the medical appeal tribunal had been entitled to regard the effective cause as being the physical defect in chromosome 21, rather than the mental impairment to which that gave rise.  But he indicated that he did not consider this to be a test case, and did not consider it to be decisive in any other case.   It is consequently of limited value in the interpretative exercise now before us.

History of the Current Provisions: The 1979 Report of the National Insurance Advisory Committee

33.In 1979, amendments to regulation 3 of the 1975 Regulations were proposed and a draft prepared upon which the National Insurance Advisory Committee (“the NIAC”) was asked to comment.  The Committee described the background as follows in paragraphs 5 to 8 of its Report (Cmnd 7491):

“5.We have been informed by the Department that the main provisions of the amending regulations were drafted as a result of doubt about the entitlement to the allowance of a number of people who, although apparently physically able to walk cannot, or do not, do so to any significant extent because of a mental handicap which results from their physical condition.  Guidance was then sought from the National Insurance Commissioner in one case, that of a boy, aged 12 at the time, who because of Down’s syndrome had a mental age of 2, was physically strong but had never walked more than 30 yards.  The Chief Commissioner allowed the particular case but emphasised that he did not regard the case as being decisive of any other.  Following the promulgation of the decision, it was thought desirable to clarify the issue by making regulations….

6.The Chief Commissioner in his decision indicated that the weight to be attached to the physical and mental disablement where both factors may be present is for the medical adjudicating authorities to decide.  The Department have told us that, after taking into account legal and medical advice, they subsequently concluded that the amending regulations should relate to the effect of a disabling condition, rather than its causation.

7.We see no reason to dissent.  None of the representations we received took exception to such an approach and one or two positively supported it.

8.The first draft of the main provisions of the amending regulations, therefore, in seeking to clarify the position regarding the effective inability to walk of certain people

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