CE/0903/2010 - “In order for physical descriptors to apply they must have physical cause”?

The decision of Judge May in CE/0903/2010 has been criticised for deciding that R(DLA)6/06 does not apply to ESA and for holding that Commissioner Jacobs was wrong in CIB/1296/2007 in deciding that it applied to Incapacity Benefit and the PCA. In CE/0437/2011, Judge Levenson said,

12….....He (Judge May) sought to confine the decision in R (DLA) 6/06 to the effects of the wording in sections 72 and 73 of the Social Security Contributions and Benefits Act 1992 requiring a claimant to “so severely disabled physically or mentally that …”. However, if alcoholism (or drug addiction) amounts to mental disablement for the purposes of DLA, I simply fail to see how it does not amount to a “mental condition” for the purposes of the Welfare Reform Act 2007 and a mental disablement within the meaning of regulation 19(3).

However, I think that the following part of CE/0903/2010 is also problematic;

10.  In regulation 19 of the Employment and Support Allowance Regulations 2008 the statutory basis for assessment is:

  “19(5)  In assessing the extent of a claimant’s capability to perform any activity listed in Schedule 2, it is a condition that the claimant’s incapability to perform the activity arises from -
   
(a)      a specific bodily disease or disablement;

(b)  a specific mental illness or disablement; or

(c)      as a direct result of treatment provided by registered medical practitioner, for such a disease, illness or disablement.” 

Schedule 2 is in two parts Part 1 relates to physical disabilities and part 2 relates to mental disabilities.  The activity of remaining conscious during waking moments is in part 1 and is accordingly related to physical disablement. The claimant in these circumstances requires to establish that his incapacity to perform any descriptor in activity 11 is caused by a specific bodily disease or disablement which is physical. It does not appear to me that on the evidence accepted by the tribunal the claimant has established as a matter of fact a specific physical disablement which would allow for the satisfaction of a points scoring descriptor in relation to activity 11.  That is sufficient to dispose of the appeal.  It was not necessary in these circumstances to go into the meaning of involuntary episodes of lost or altered consciousness.

I do not think that reg. 19 (5) lends itself to that kind of restrictive reading at all - and I can see no reason why someone might not a) experience involuntary episodes of altered consciousness resulting in significantly disrupted awareness or concentration as a consequence of mental disablement and b) why, if they did, the wording of reg. 19 (5) would prevent their scoring points under activity 11. Surely what 19 (5) says is that an inability to perform any of the activities in Schedule 2 must be as a result of either a, b, or c - but it says no more than that.

Thoughts? (I have a vague recollection of a a UT decision that agrees with this reading, but I can’t place it or locate it…..)

You’re right.  See CE/1222/2010.  And, in CE/3002/2010 the judge said:

“31.  The rules for ESA are different. Regulation 19(5) of the Employment and Support Allowance Regulations 2008 (SI 2008/794) provides as follows:

“(5) In assessing the extent of a claimant’s capability to perform any activity listed in Schedule 2, it is a condition that the claimant’s incapability to perform the activity arises from—
(a) a specific bodily disease or disablement;
(b) a specific mental illness or disablement; or
(c) as a direct result of treatment provided by a registered medical practitioner, for such a disease, illness or disablement.”

32.  There is, therefore, no artificial partitioning in the legislation requiring mental health descriptors to be scored only in relation to mental health conditions and physical descriptors only being applicable to physical conditions.  It may be, of course, that as a matter of evidential weight a tribunal is not satisfied that a physical condition gives rise to a score for a mental health descriptor, or vice versa, but the linkage is possible in appropriate cases.”

Thanks. CE 1222 2010 was the one I was thinking of. I note the UT website states that this decision is reported as [2012] AACR 5, so handily it’s not a case of competing interpretations - CE/0903/2010 is definitely wrong on this specific point.