[2024] UKUT 311 (AAC)

Error by misquoting the test in Note 2 of the Tariff to the scheme and by appearing to assume that, without a substantial adverse impact on Ms H’s day-to-day activities, the DMI was present but not permanent

The First-tier Tribunal said at paragraph 54 of the written reasons—

“The Tribunal must assess whether the DMI had a substantial adverse impact on her day-to-day activities in accordance with Note 2 so as to make it a permanent DMI”.

This erred in law by misquoting the test in Note 2 of the Tariff to the scheme and by appearing to assume that, without a substantial adverse impact (Footnote: ¹) on Ms H’s day-to-day activities, the disabling mental injury was present but not permanent. In fact, Note 2 requires that, in order to be disabling at all, the mental injury has to have “a substantial adverse effect on a person’s ability to carry out normal day-to-day activities for the time specified (e.g. impaired work or school performance or effects on social relationships or sexual dysfunction)”. By accepting that Ms H had a disabling mental injury at all for the purposes of the scheme, the First-tier Tribunal was effectively accepting that the mental injury had “had a substantial adverse effect on [Ms H’s] ability to carry out normal day-to-day activities”. Permanence is informed by Note 2 only in the sense that the “substantial adverse effect on a person’s ability to carry out normal day-to-day activities” mentioned in Note 2 has to be, says Note 2, “for the time specified”. It may be that this was what the First-tier Tribunal meant, but that is not clear. It might also be that, if the First-tier Tribunal did not consider that there had ever been a substantial adverse effect on Ms H’s ability to carry out normal day-to-day activities, then the First-tier Tribunal should in fact not have accepted that there was a disabling mental injury at all. That would be contrary to what Ms H seeks of course, but I have to point that out.