Mental health and disability benefits

C 9/05-06(IB)

The Northern Ireland Commissioner provides some guidance on the requirements for satisfying some of the Personal Capability Assessment (PCA) mental health descriptors of Incapacity Benefit. In particular, the Commissioner commented:

16(c): is frequently distressed at some time of the day due to fluctuation of mood.

In this case, the tribunal found that the claimant’s distress came from the situation regarding his children rather than from fluctuation of mood. The Commissioner emphasised that the disability must first arise from a mental disablement. In relation to this descriptor, she states:

‘This appears to me, while I would not wish to substitute my own words for those of the legislation, to relate to distress coming from something akin to mood swings which occur due to illness. It does not relate to distress which arises from external circumstances and not from fluctuation of mood due to mental disability. It is a matter for the tribunal as the fact finding body to determine whether a claimant suffers from fluctuation of mood due to a mental disability and this fluctuation produces distress. It is also for the fact finding body to determine whether this distress is of sufficient frequency.’

The Commissioner also comments on:

18(d): gets irritated by things that would not have bothered him before he became ill. The Commissioner again emphasises that the irritation must relate to a mental disablement:

‘In relation to descriptor 18(d), it is worth noting that again it relates to increase in irritation brought about by a mental disability. Otherwise the activity and consequently the relevant descriptor would not apply. It is therefore increased irritation brought about by a mental disablement that is relevant. Everyone feels more irritable at times than others and there are certain things which are apt to produce irritation in everyone. It is again a matter for the fact finding body to reach its conclusion as to whether or not any accepted increased irritation is as a result of the mental disablement or of external factors not related thereto.’

CIB 1374/2006

Another decision, this time from a GB Commissioner, looks specifically at some of the mental health descriptors for the PCA. In particular, the Commissioner gives guidance upon:

16(e): sleep problems interfere with his daytime activities.

In this case, the tribunal had found that 'sleeping during the day was part of his normal activities and did not interfere with daytime activities’. Again, the Commissioner stressed that the relevant disablement must arise from a mental disability, but went on to state that where, on the evidence, that mental disability causes tiredness and sleepiness during the day, then the descriptor is likely to be satisfied.

17(c): Avoids carrying out routine activities because he is convinced they will prove too tiring or stressful.

In considering this descriptor, the Commissioner stated: ‘This descriptor clearly requires (a) a finding whether the claimant avoids carrying out routine activities, and (b) a finding whether this is because he is convinced that they will prove too tiring or stressful. It does not require that the claimant cannot do these things. That would be in part a physical descriptor. It requires the claimant’s approach to be as stated. As with problems with sleep, the general requirement is that this arises because of the mental health problems.’

18(b): Gets upset by ordinary events and it results in disruptive behaviour.

18(d): Gets irritated by things that would not have bothered him before he became ill.

The Commissioner states that these two descriptors should be considered together, as the two terms ‘gets upset’ and ‘gets irritated’ are closely related.

The Commissioner approved of an earlier decision, CSIB 1521/2001: ‘The Commissioner emphasised the overlap between these two heads and that disruptive behaviour was not limited to aggressive behaviour. The test was that the claimant’s conduct has to be extreme enough to affect the fabric of life around him…’

In endorsing this approach, the Commissioner goes on to state:

‘The two descriptors are in ordinary English that do not warrant further definitions. ‘Upset’ and ‘irritated’ are widely drawn and overlapping terms. The phrase used by the claimant in his appeal notice was ‘I get stressed’. That overlaps with both. The focus is on any upset or irritation arising from the mental health problems, in this case the claimant’s anxiety problems.’

This is a useful decision not only for the above guidance, but also because the Commissioner gives the decision of the tribunal and levels some criticisms at the Examining Medical Practitioner report for not properly transferring findings upon examination to the mental health descriptors.

CDLA 2974/2004

The claimant in this case was a child under sixteen with a diagnosis of Autistic Spectrum Disorder. The child had problems interacting with other people, including obsessive behaviour, aggression and losing his train of thought. His mother frequently had to intervene in situations in which he was dealing with other people

The Commissioner held that the help supplied in such situations could be interpreted as being help with ‘bodily functions’ for the purpose of the care component of Disability Living Allowance. Bodily functions include those functions of the mind responsible for a person’s social functioning and, if such functions are impaired by mental disablement, any consequential requirement for attention is ‘in connection with his bodily functions’.

The Commissioner relied on a House of Lords decision regarding criminal law, R v Ireland, as authority, that actual bodily harm can include psychiatric damage.

This is an important decision for cases involving people with mental health problems, particularly problems with social functioning and interaction with others.

Case law online:

• www.dsdni.gov.uk/index/law_ and_legislation/nidoc_database.htm
  
• www.osscsc.gov.uk/decisions decisions.htm