[2024] UKUT 191 (AAC)

The Tribunal was satisfied that, at the date of the decision, [the Appellant’s] mental disorder caused a functional limitation or restriction which was expected to continue for 5 years.

The Tribunal was not satisfied that [the Appellant’s] mental disorder is permanent for the purposes of the descriptors in items 1 and 2 of Table 3.

In reaching our decision, the Tribunal carefully considered the legal submissions on the meaning of the word “permanent” in this context.

The first diagnosis of PTSD was made by a consultant psychiatrist – Dr Cahill – on 5 June 2017. This was in a report requested by Veterans UK.

Mr H currently spends most of his time at home, sitting in one room. He is unable to be left alone. His partner is his carer. His children are home schooled. He avoids social situations. His family are unable to go on days out. He constantly fears that something will happen to his children.

Mr H has not received any formal psychological treatment. He has had a number of assessments and at one point was offered group therapy or Eye-movement Desensitisation and Reprocessing. However, these have not been completed (page 64 reverse in the bundle.)

Mr H has completed 12 sessions of Cognitive Behavioural Therapy [“CBT”]. These were mostly online, so he did them from home where his partner was able to support him. The sessions did not result in an improvement of his symptoms. Mr H did learn some coping mechanisms from the CBT.

The opinion of Dr Cahill is that Mr H “needs a lot of ‘psychological preparation’ before embarking on a structured form of therapy. He needs to build up a therapeutic, trusting relationship with a professional to work on some low-grade coping strategies, and anxiety management in the form of relaxation, mindfulness and graded exposure, prior to the discrete work on the trauma....If [he] can embark on some form of therapy, for example the EMDR which is in the pipeline, I envisage this will take a lot longer than the standard 18-24 sessions normally prescribed.”

Mr H has been unable to engage in the support or treatment he requires and there is a barrier to accessing treatment that he must overcome (page 65 in the bundle). However, Mr H’s evidence is that he thought he had responded well to Dr Cahill. He explored the possibility of private treatment with Dr Cahill, but the cost was prohibitive.

There is medical evidence that the prognosis for Mr H is poor. Dr Cahill says that “there is a predisposition to anxiety and evidence of poor coping mechanisms. [Mr H] joined that Army at a young age, when his personality was still forming, and there is evidence that he struggled to cope, as well as forming solid relationships, and it is likely that there were elements of his personality which were not robust.” (See page 65 in the bundle.)

Mr H has a strong family support network, which is positive.

Mr H has had many medication changes, which is managed by his GP.

Mr H has not been in paid work since he left service. At some point, he worked for his father on his father’s market stall, but this was unpaid. His evidence to us was that, when he was discharged, that he was thinking of being a vehicle mechanic. He started a college course relating to vehicle mechanics, but was not successful. This was in part due to loud noises that he found difficult to cope with. He also attempted sports fitness coaching course but it was too much for him to deal with. Mr H has considered working in mental health, and found a course that interested him, but could not complete all of the necessary assessments.

During service, Mr H underwent a silver service course, a signalling course, a medics course and he re-took his maths and English exams (as he said that his grades from school were not good). He had a driving licence, but no longer uses it. Currently he has a provisional driving licence. Mr H reported being good at working in a team, being reasonably organised and that he could deal with noisy places.

Mr H is of the opinion that he is unable to cope with trauma therapy. He feels that the online therapy sessions he has been able to do have provided him with coping tools. He strongly believes his PTSD will remain indefinitely.

We are satisfied that, at the date of the decision, Mr H’s mental disorder caused a functional limitation or restriction which was expected to continue for 5 years.

We are not satisfied that Mr H’s mental disorder, at the date of the decision, was permanent for the purposes of the descriptors in items 1 and 2 of Table 3.

In reaching our decision, we carefully considered the legal submissions on the meaning of the word “permanent” in this context.

In respect of whether Article 5(7)(a) should be used to define permanence for the purposes of the descriptors in items 1 and 2 of Table 3 (and indeed item A1, but that was not a part of this case), we were not satisfied that it should, at least on an absolute basis. That is because the descriptors for items A1, 1 and 2 are written in a different way to those in items 3, 4 5 and 6. In items 3, 4, 5 and 6 the reference is to a mental disorder with a functional limitation that is tied to a specified duration. Therefore, it can be seen (as set out in the case of PQ (see paragraph 18 above) that the duration is relevant to the functional limitation or restriction.

In items A1, 1 and 2, the word “permanent” is directly before the word “disorder”. There is then a specific definition of functional limitation or restriction (“very severe”, “severe” and “moderate”) to be applied and defined in the footnotes. As such, an ordinary reading would suggest that the mental disorder, rather than the functional limitation or restriction, must be permanent.

In addition, there is use of the phrase “permanent significant functional limitation or restriction” in other tables (for example Table 8, item 1). This suggests that where government intended the functional limitation or restriction to be permanent, it said so and provided the legal definition to be applied (in Article 5(7)(a)).

However, we do think that Article 5(7)(a) provides a useful guide to the approach to permanence in the 2011 Order in respect of Table 3.

The Oxford English Dictionary defines ‘permanent’ as follows: “Continuing or designed to continue or last indefinitely without change; abiding, enduring, lasting; persistent. Opposed to temporary.”

In our view, it is not as clear cut as entirely relying on either Article 5(7)(a) or a straightforward dictionary definition of the word permanent in the context of items A1, 1 and 2 in Table 3. Cases where such an award is possible are, by definition, likely to be medically complicated. Applying only a dictionary definition is too simplistic – mental disorders commonly change as people respond to treatment and medication. It stands to reason that if there has not been appropriate clinical management of the mental disorder, maximum medical improvement has been reached, and that common treatment options are available but have not been undertaken, then those are relevant factors in deciding if a mental disorder is permanent or not.

Mr H has not yet carried out a course of EMDR treatment. Dr Cahill’s evidence did not rule out future therapy. He said that significant preparatory work will be needed, and that a longer than normal course of treatment of EMDR is likely to be required. Mr H is clearly capable of developing a trusting relationship with doctors. He has done so with his GP and, in our view, with Dr Cahill. We appreciate that Mr H does not believe he will be able to undertake trauma related therapy. However, in our view, as we have highlighted, the evidence is that if he has a relationship with a doctor that he trusts then there may be an improvement in his condition and the impact it has on his life.

We therefore do not find that Mr H’s mental disorder is permanent because we are not satisfied that it will last indefinitely without change (to use the dictionary definition) or that he has is at a point where it can be said that he has reached maximum medical improvement. However, we do find that – at the date of the decision – it was expected continue for at least five years and has caused functional limitation or restriction during that time. Mr H has been unable to work in paid employment, is unable to leave the house, takes medication regularly and is unable to fully participate in family life. He is reliant on his partner to support him, including enabling him to attend medical appointments.

In detailed grounds of appeal, the appellant only really seeks to challenge one aspect of the Tribunal’s conclusion that the appellant’s mental health disorder was permanent. That is around whether he could be said to have reached a state of maximum medical improvement if he had not exhausted certain possible therapy options.

The application for permission to appeal suggests that the Tribunal fell into error by an over reliance on a comment in the report from a Dr Cahill who stated that [the Appellant] had not received ‘any formal psychological treatment’. As Dr Cahill had recommended EMDR or Trauma focussed CBT [64r of the bundle] and [the Appellant] accepted he had not undertaken any EMDR the Tribunal concluded he could not be said to have reached maximum medical improvement.

The appellant’s [representative] rightly points out that, since Dr Cahill’s report was written in 2017, the Tribunal had evidence from [the Appellant] that he had undergone some CBT which had ended in February 2020. It is suggested that the Tribunal have disregarded the CBT and have concluded, without adequate reasoning, that the CBT was not ‘formal psychological treatment’. It is clear from the Tribunal’s findings of facts [paragraphs 35 and 36] that they concluded that CBT could not be the formal psychological treatment envisaged as needed by Dr Cahill with good reason. Dr Cahill said in his report at paragraph 6 that [the Appellant] ‘needs a lot of ‘psychological preparation’ before embarking on a structured form of therapy’. [The Appellant’s] evidence to the Tribunal was that he had had 12 sessions of CBT, mostly online, and they had not resulted in an improvement. His own witness statement from February 2022 described the sessions as not being much therapy but giving him ‘very low-level coping tools’ and he talked about having asked for a re-referral for further sessions.

On the basis of that evidence the Tribunal’s conclusion that the appellant had not received any formal psychological treatment cannot be said to be an error of law or procedurally wrong. The Tribunal clearly considered carefully whether [the Appellant’s] condition, as at 2020, satisfied a wide definition of permanence based on all the evidence before them. They explained clearly and cogently why they could not conclude that [the Appellant’s] PTSD was permanent. That was because he had not exhausted recommended course of treatment by Dr Cahill of either more structured CBT or EMDR. They concluded therefore that he had not completed all recommended treatment and it could not be said that he had reached a steady state of maximum medical improvement. In the circumstances the panel’s decision that he had not achieved maximum medical improvement nor would the condition last indefinitely without change could not be said to be irrational or perverse.

The test for permanence for mental health conditions is a complex one, as the panel acknowledged. They took a broad approach to the definition of permanence and it was open to them on the evidence before them to conclude as they did that the condition had not reached a state of permanence and determine that therefore Level 10 was the most appropriate descriptor. Their conclusions are reasoned and based on the evidence before them; I do not therefore consider that there is any arguable error of law.