Specific mental disablement

Was this what you were thinking of?

In Commissioner Jacobs’ decision in CIB/4828/99 he stated 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)

Hi Pete

No, not that, but thanks anyway.  I will also run a reg 29 argument, obviously.  What I am looking for is on the narrow point of a diagnosis after the date of the decision under appeal of a condition existing prior to the decision.  And, more importantly even though linked, the use of the word specific rather than specified.  If the legislation used the word specified then a diagnosis after the date of decision would be fatal to my argument on this point.  But the legislation uses the word specific instead.  I thought I read something years ago on this narrow point, i.e. specific/specified.  And, that is what I’m looking for.  I’ve got all the other bits covered.

R(I) 39/61   In the case of a man who suffered amputation of 3 fingers of his right hand a medical appeal tribunal assessed the degree of disablement resulting from the relevant loss of faculty as 15 per cent. for life. It was contended on behalf of the claimant that the scheduled assessments for the 3 amputations added up to 18 per cent. and that the tribunal had erred in law. It was held by a Tribunal of Commissioners that the scheme of the Act and Regulation was (is) to require assessment of the claimant’s disablement as a whole and since disablement is to be assessed in respect of loss of faculty and not in respect of mere anatomical loss if falls to be measured, primarily at least, by reference to loss of useful function. Where the loss of faculty arises from a single, or multiple injury specified in the Schedule to the Regulations the assessing board or tribunal must assess the resulting disablement at the figure prescribed in the Schedule subject to adjustment, if appropriate. But where the loss of faculty arises from some injury not so specified the assessing board or tribunal may merely ‘have such regard as may be appropriate’ to the scheduled assessments. Multiple injuries not themselves constituting any specific item in the Schedule are not to be regarded as ‘an injury specified in the first column of the First Schedule’ merely because they constituted an aggregate of injuries each of which is specified in the Schedule. Accordingly the disablement arising in respect of multiple injuries (not themselves constituting a specific item in the Schedule) is not required to be assessed at a specific figure prescribed in the Schedule nor necessarily as the aggregate of specific figures in the Schedule. A decision of the medical appeal tribunal was held not to have been erroneous in point of law.

See also

DMG
13201   Disease means a departure from health identifiable by its signs and symptoms, an abnormality of some sort. “Specific” is not the same as “specified”.

Thanks Gareth

That’s really useful.

Dear Paul,

I am not sure if this is what you were looking for but it seems that UT decision JG-v-SSWP[2013] UKUT 037 (AAC) {also titled CSE/496/2012} would be of some assistance you. In paragraph 16, the Tribunal of Upper Tribunal Judges states that “it seems to us that the word “disablement” is being used to refer to the underlying cause of the functional limitation as opposed (as in DLA) to the functional limitation itself”. The commentary on that Paragraph states that “the proper course for the decision maker (be that SOS or FtT) to take is to work backwards from the instances of accepted functional limitations under Schedule 2, assess whether they pass the necessary points threshold, and whether they are consistent with the underlying disease or physical or mental disablement relied on.”(My emphasis)

Therefore, if your client has symptoms that satisfy mental, cognitive and intellectual functions descriptors sufficient to attract points from before the actual diagnosis of depression, then they (FtT) work backwards to determine that she had the underlying disablement or disease causing these symptoms i.e. depression at the time she suffered with the symptoms. I trust that this is when the WCA decision was made.

I hope that the reasoning makes sense and is of help.

Regards

Chris

Hi Chris

That’s quite a nuanced distinction between the treatment of disablement for ESA and DLA.  Thanks for that.  Any thoughts on the differences in meaning between the words “specific” and “specified”?

Hi,

Only applying their “ordinary everyday meanings” - specific means an individual or class of things identifiable by their characteristics and specified means details individually identified e.g. in a regulation, list or schedule.

Specific in relation to an assessment of depression must mean identifying the symptoms that a person experiences and whether or not they impact sufficiently on their everyday life to be classed as an illness, rather than just feeling temporarily low in mood, and therefore potentially requiring intervention or treatment. The PHQ9 test that GP’s utilise to help diagnose depression seems to take this approach.

My approach is always that the WCA is an assessment as to how a claimant’s symptoms impact on the functional descriptors, and not an assessment of diagnosis or treatment. That’s why I agree with the UT Judges when they say consider the symptoms and how they impact on the descriptors then work backwards as to whether they have a “specific disease” that can be identified in that manner.

I am not sure that the difference between specific and specified is central to the issue that you want to raise. The relevant section (s. 8, I think) in the 2007 Act talks about a “specific disease OR bodily or mental disablement”. (My emphasis) It is the disease that needs to be specific and not the bodily or mental disablement. Therefore, I don’t think that the Tribunal need to be invited to identify a “specific” diagnosis anyway. They just need to be persuaded to accept that the symptoms the client had at the time of the WCA constituted “mental disablement.”

I am entirely in agreement with your viewpoint on this. I would have thought that her GP will confirm that it was her brother’s death that caused the symptoms leading to the diagnosis of depression and not failing the WCA. In the circumstances you describe, it is not stretching the bounds of reasonableness that the effects of the bereavement impacted on your client’s mental health after her brother’s death and not only after the WCA. In my mind, this is fatal to the JCP suggestion that there was a relevant change of circumstances AFTER the ESA Decision. It isn’t surprising that JCP are attempting to suggest it is a change of circumstances, as this avoids them having to justify or deal with a revision (request).

Do you really think there is much of a risk to the physical descriptors already awarded? My experience of tribunal hearings is that they don’t feel the need to investigate functional descriptor awards that are not under challenge and just concentrate on the contentious issues. But you know your own case best and need to go with your own feelings and judgement.

I hope this helps and isn’t just me rambling.

Regards

Chris

Thanks Chris

You’ve echoed my thoughts on this.  It is highly unlikely that her depression was born on the day she fetched up at her G.P.’s surgery so the thrust of my thinking is that she was suffering from some “specific” disablement prior to the date of the decision under appeal even if it hadn’t been specified then.  My view is that “specific” and “specified” mean two different things and as long as she was suffering from some specific disablement prior to the decision the fact that it wasn’t specified by her G.P. is irrelevant.  So, on the balance of probabilities, she was suffering from the depression around the time of her brother’s death (if not earlier) rather than much later.  As for the points awarded from the physical descriptors we are probably safe with the points from one of them but the points from the other are rather generous in my view and if I was on the tribunal I’d want to question her on it.  I share your view of tribunals not usually going where you are not asking them to go but they cannot be relied on for that.  I’ve experienced medical members go ‘off script’ on more than one occasion.

cbrowne - 02 May 2013 12:26 PM

Hi,

I am not sure that the difference between specific and specified is central to the issue that you want to raise. The relevant section (s. 8, I think) in the 2007 Act talks about a “specific disease OR bodily or mental disablement”. (My emphasis) It is the disease that needs to be specific and not the bodily or mental disablement. Therefore, I don’t think that the Tribunal need to be invited to identify a “specific” diagnosis anyway. They just need to be persuaded to accept that the symptoms the client had at the time of the WCA constituted “mental disablement.”

Chris

Yes, you’re quite right, it does indeed say “OR bodily ...disablement. 

Thank you do much all, particularly C. Browne, Nevip - and “Rightsnet” of course

Patrick