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Forum Home  →  Discussion  →  Work capability issues and ESA  →  Thread

Linking an undiagnosed physical symptom to their mental health

JoeBondBoard
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Welfare Rights Adviser - The Bond Board - Rochdale

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Hi everyone,

I have a tribunal on Thursday for someone who experiences severe debilitating head pains which effectively incapacitate them for hours on end.

They have had scans and attempts to find a physical diagnosis for the head pain but have not found anything. The head pains also get worse when they are stressed or become severely anxious.

Their GP supplied a letter which states that their anxiety and depression could be a contributory factor when considering the origin of the head pains however does not say anymore than this.

They do meet some descriptors which I am going for however I don’t know whether physical symptoms will be accepted as a part of mental descriptors…has anyone come across anything similar where there may be a physical manifestation of mental health issues and how they were mentioned/argued at tribunal?

Many Thanks,

Joe

Pete C
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Its not wholly what you might want but have a look at Commissioner Jacobs’ decision in CIB/4828/99 where he states that “regulations 25(3) (a) and (b) do not create rigid categories. A physical symptom that arises from a mental illness or disablement may be a bodily disablement. Or it may arise from a bodily disease that itself gave rise to the mental illness or disablement” (para.19).

This is of course an IB decision but a number of IB decisions have transferred to ESA as they demonstrate a general principle.

Jon (CANY)
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Judge Jacobs also gave CIB 5435 2002, where he said:

...The specific context of this question is regulation 25(3), which operates as a gateway into the two sections of the personal capability assessment. The physical disabilities only qualify if they arise from a specific bodily disease or disablement. Those contexts suggest that the emphasis should be on effect rather than on origin or cause. Take the example of a claimant with what used to be called hysteria. It affects the claimant’s lower limbs and prevents any mobility. Hysteria by whatever name it is now know is a recognised condition that causes a person to experience restriction of function. The origin of the condition is mental. Nevertheless its effects are physical and are outside the person’s conscious control. Is that (a) a bodily disease or disablement or (b) a mental illness or disablement? Its proper classification determines the section of the personal capability assessment that applies. Although the condition is mental in origin, the terms of the mental disabilities section are inappropriate for this condition and its effects. Despite the genuinely disabling effects of the condition, is the claimant to be assessed under an inappropriate section of the personal capability assessment just because of the origin of the condition? The answer is obviously: no. My interpretation of ‘bodily’ in the context of disablement is that it refers to the function that is affected rather than to the source of the condition. On that basis, chronic pain syndrome and related conditions bring the claimant within the scope of the physical disabilities section of the personal capability assessment.

For what it’s worth, the Medical Services Handbook accepts that, in principle, migraines can lead to points under a physical descriptor, e.g. for losing consciousness (“The symptoms relating to migraine are wide ranging but do not usually result in a significant loss of consciousness in most cases.”), but it adds “The effect of migraine headache on any other functional category should be assessed in the same way as the effect of any other pain, bearing in mind the frequency and severity of the attacks.” (p104)

However, to score mental health points, you would generally need to show that the limitations are due to a mental disablement. You can’t mix and match physical conditions with mental descriptors, since SI 3096/2012 came in to effect (on 28/1/13). That SI makes it that points under the physical descriptors must arise from a specific bodily disease or disablement, and points under the mental descriptors must arise from a limitation of mental/cognitive/intellectual function.
[There were previous ESA cases which found that, e.g. “the assessment of whether a person can score points under Part I of Schedule 2 is not restricted to where the incapability to perform the activity arises from a specific bodily disease or disablement, and so it may arise from a mental illness or disablement (and vice versa).” (CSE/496/2012 para 29)].

By the way, “specific” does not have to mean “specified”, so e.g. “cluster headaches of unknown origin” might count as a specific condition, even if has not been conclusively and specifically diagnosed.

matthewjay
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Very interesting case. I don’t know what this is worth in a legal context, but the consensus among pain specialists is that pain is a biopsychosocial phenomenon. All pain is created by the brain and the pain experience is mediated by biological, psychological and social factors. It is common to all pains that anxiety and depression can make it worse (e.g. if you bang your elbow when you’re in a bad mood, it will feel worse; if you’re in a really good mood, you might not notice); and pain and depression are associated but this does not mean that depression causes pain or its chronification. It’s also very common not to know what causes chronic pain. There are many pain conditions where endless scans and tests turn up nothing but the pain and associated functional effects, muscle wastage, etc., are undoubtedly real and the diagnosis accurate.

And GPs very often don’t really understand pain. If your client has been to a specialist pain service, you might do well to ask if he has any letters from them if you’re worried the GP’s letter will be adverse.

I’m afraid I can’t tell you how this knowledge translates to an ESA appeal but I also work in pain management so it will be interesting to know what the outcome is.

Which mental health descriptors do you think s/he might meet?

JoeBondBoard
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Well physically the only descriptor mentioned so far is the conscious when awake one (10) as they suffer faints and lose consciousness more than once a month. However due to their mental health, the social engagement and completing personal actions ones are mentioned also.

The exceptional circumstances rule afterwards is where it gets a little messy with whether they are attached or separate…

matthewjay
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Do you mean regs 29 and 35?

How often are the migraines? Could activities 1 and 8 be invoked (accepting that describing a migraine as a sensory impairment is probably pushing it considering the ordinary meaning of those words in their statutory context)?

Not to say that the mental, cognitive and intellectual ones couldn’t apply. Your client may have depression as a ‘stand-alone’ problem. Does s/he also have any problems with memory?

JoeBondBoard
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Yeah regs 29 and 35.

The headaches occur 3/4 times a week and they last between 6 and 12 hours each time.

Descriptor 1 might be met as he cannot mobilise with the headaches however the headaches are not brought on by mobilising…so I don’t know.
Descriptor 8 maybe as he cannot navigate at all when the head pains occur, however the familiarity or unfamiliarity is not relevant, so I don’t know if this can be mentioned. Also these were not mentioned on esa 50…

Memory is somewhat selective in that he can remember really vivid experiences in his youth and significant times in his life. But can’t remember other things like timeframes and dates etc…