[2006] NISSCSC C6_06_07(IB) (22 September 2006)

Decision No:  C6/06-07(IB)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

INCAPACITY BENEFIT

Application by the claimant for leave to appeal
and appeal to a Social Security Commissioner
on a question of law from a Tribunal’s decision
dated 17 August 2005

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This case begins as an application by the claimant for leave to appeal against a decision dated 25 October 2005 of an appeal tribunal sitting at Downpatrick.  That tribunal had disallowed the claimant’s appeal against a Departmental decision dated 1 December 2004.  The Departmental decision superseded an earlier award of incapacity benefit (IB).  It found that the claimant did not satisfy the personal capability assessment (there is no issue in that this assessment needed to be satisfied before the claimant could be awarded IB) and that she was not entitled to IB from and including 1 December 2004.  I held a hearing which the claimant attended and at which she was represented by Mrs Carty of the Law Centre (NI).  The Department was represented by Mr Kirk of its Decision Making Services branch.  I am grateful to both representatives for their considerable assistance in this matter.  I grant leave and with the consent of both representatives treat the application as an appeal and determine any question arising thereon as if it arose on appeal.  My decision is given in the final paragraph.

2.	As the proceedings progressed it became apparent that Mrs Carty was proceeding on only two grounds of appeal as follows: 

(i)	that there was a violation of the rules of natural justice in the tribunal not exploring further the background to a letter written by the claimant’s general practitioner (GP) dated 16 August 2005 which had been produced to the tribunal;

(ii)	that there was an error in the tribunal’s use of its ocular observations.

3.	In its reasoning on the medical evidence the tribunal had preferred the evidence of the examining medical practitioner (EMP) to that of the GP.  It commented that the evidence from the GP - 

“… did not comment on the nature or severity of [the claimant’s] condition as such, but which addressed elements of the statutory test in isolation of any reported examination. …

	It reasoned that because the EMP’s –

“… conclusions were grounded on an examination, the tribunal preferred the report of [EMP] to the evidence of [the GP].”

4.	Mrs Carty submitted that the claimant was not legally represented before the tribunal and that medical evidence and its consideration was crucial to the appeal process.  The claimant had never previously been at a tribunal, she knew little about IB other than that she had received it.  She attempted to bring medical evidence to challenge the EMP’s report.  The tribunal had her reports and the evidence which she had attempted to bring from her GP indicated how difficult it was for a claimant, even with assistance from a GP, to counter the report produced by the Department.  The Department recruited and trained EMPs and gave them guidance in the form of a manual on the completion of the reports and paid them.  The EMPs therefore became expert at carrying out examinations and asking questions.  In this connection Mrs Carty referred to paragraph 62 of the decision in Kerr v Department for Social Development (Northern Ireland) [2004] UKHL23 to the effect that the Department knew the questions it needed to ask and the information it needed to have in order to determine whether the conditions of entitlement had been met.  In Mrs Carty’s view the IB85 form (the form which is completed by the EMP) makes that clear.  In Mrs Carty’s contention the EMPs became experts though of course they could reach different conclusions.  Mrs Carty submitted that short of getting an appropriate form and having it completed by a GP it was difficult to counter the Department’s medical evidence in the form of an EMP report.

5.	In this respect, in Mrs Carty’s submission, the tribunal had a crucial role in that it knew which questions to ask.  In this case the tribunal had preferred the EMP’s report as it was grounded on an examination.  She argued that the tribunal was incorrectly influenced by the fact that the GP’s report did not state that an examination had been carried out, though in fact one had been carried out.  In Mrs Carty’s submission there was a failure of the inquisitorial role in that the tribunal did not ask if there was an examination.  It would have had the option to send for examination findings had it wished to do so and could summon witnesses.  In this respect Mrs Carty referred to paragraph 19 of decision CDLA/4127/2003 where Great Britain Commissioner Williams stated:

“19.	It is standard procedure for tribunals to rely on SEMA (now Atos Origin, following its acquisition of the Department’s contract from SchlumbergerSema) medical reports without the doctors who make them being called as witnesses or being subject to any other form of questioning by claimants or tribunals.  Expert views such as this – and certainly changed expert views with which one party disagrees – could in other courts and tribunals expose the expert to a summons to give evidence under cross-examination on exactly what his or her findings and opinion were.  Appeal tribunals have that power, and perhaps they should use it where necessary to ensure fairness.  But this is not the most effective or efficient way of handling most challenged medical reports, not least because the tribunals have medical members.  One obvious answer is to use that medical expertise and for the tribunal to make its own findings rather than to rely on inconsistent or doubtful official evidence.  Another is to seek further evidence either from the Department and the doctors that advise it or from elsewhere, such as the specialist referred to in this case.  Another response more robust tribunals use is to ignore a compromised examining medical practitioner report entirely and look only at the other evidence.  Whatever approach it takes, the tribunal must be not only efficient and effective but also fair.  In cases like this it must, in Article 6 terms, equalise the arms.”

6.	Mrs Carty submitted that in a report a GP had different ways of indicating whether he or she was relying solely on what a patient states to them.  The GP here referred to his own opinion.  In a circumstance such as that it was fair for the tribunal to make enquiries as to the basis of that opinion.

7.	In response to this Mr Kirk referred to an IB113 form completed by the GP on 25 June 2004 where, at section 6, the GP was asked about the effect of the claimant’s difficulties on daily living and gave no information.  As regards the letter of 16 August 2005 Mr Kirk submitted that the tribunal had to evaluate that evidence and reach a conclusion.  It had noted the claimant’s contentions as regards the EMP’s report and had indicated that it preferred that report.  The GP’s letter confirmed that the claimant had difficulties but it never stated that she had been examined.  It merely stated that the GP could confirm various matters.  It did not state “in my opinion”.  The tribunal was quite entitled to prefer the EMP’s report.

8.	Mr Kirk submitted that it might be preferable if the tribunal did enquire whether the GP had conducted an examination on which he had based his letter.  At the end of the day the tribunal had to ascertain whether or not the claimant satisfied the statutory test.  Some GPs merely put down what they were told.  On being asked by me if he considered there had been a failure of the inquisitorial role Mr Kirk submitted that there was in fact an error in the tribunal not asking if there had been an examination.  All the tribunal had to do was to ask had the report been based on an examination.  He also considered that there was an error in the tribunal not considering adjourning to go back to the GP and seek his clinical findings.  This, in Mr Kirk’s submission, was a failure of the inquisitorial role.

9.	In response to Mrs Carty’s submissions with regard to EMPs Mr Kirk submitted that EMPs were independent professionals.  They produced reports acting in as impartial and fair a manner as possible.

10.	The second ground of appeal was that the tribunal erred in that it gave weight to its observations of the claimant sitting for an hour without evident discomfort without putting this matter to the claimant for comment.  In Mrs Carty’s submission the claimant felt that she was unable to indicate her discomfort in the hearing and she considered that this was unfair.  Mrs Carty conceded that the tribunal’s ocular observation was not evidence but was a means of weighing evidence.  Mrs Carty submitted that her client felt that comment should have been sought.

11.	Mr Kirk submitted that the tribunal observed the claimant to sit without evident difficulty and it was entitled to use those observations.  The relevant descriptor was as follows:

“Cannot sit comfortably for more than 30 minutes without having to move from the chair because the degree of discomfort makes it impossible to continue sitting.”

	In Mr Kirk’s submission the descriptor indicated that the claimant must be in a lot of pain or discomfort and this would be readily apparent to anyone.

12.	As regards the second ground I do not consider that there is any merit in it.  It is long term settled law that anyone acting in a judicial capacity is entitled to use all his or her senses in assessing the evidence given.  In this connection I would refer to the decision in Piglowska v Piglowski [1999 3AER] where at page 643 Lord Hoffman observed:

“First, the appellate court must bear in mind the advantage which the first instance judge had in seeing the parties and the other witnesses.  This is well understood on questions of credibility and findings of primary fact.  But it goes further than that.  It applies also to the judge’s evaluation of those facts.  If I may quote what I said in Biogen Inc v Medeva plc (1996) 38 BMLR149 at 165:

“The need for appellate caution in reversing the judge’s evaluation of the facts is based upon much more solid grounds than professional courtesy.  It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance … of which time and language do not permit exact expression, but which play an important part in the judge’s overall evaluation.””

13.	In the present case the tribunal was entitled to rely on its observations for its evaluation of the evidence and its factual conclusions.  However they were but one matter among several which led the tribunal to its conclusions as to the extent of the claimant’s limitations. The EMP’s report and the treatment pattern are other obvious matters.  Had the tribunal’s observations been the sole factor involved in reaching its conclusions it may have been that the rules of natural justice would have demanded that the tribunal mention its observations and seek comment on them.  However, as indicated above, they were by no means the only factor.  I also find it somewhat difficult to accept that the claimant, who was actually giving evidence to the tribunal about her difficulties in prolonged sitting, would not have felt she could mention that she felt she needed to stand up in the hearing itself especially as she had complained that the EMP’s observations of her sitting were inaccurate.

14.	As regards the first ground I comment first on Mrs Carty’s submissions on the difficulties facing a claimant where the Department’s decision is based on the EMP’s report.  She is, of course, correct in that EMPs are trained and may well become experts in conducting and reporting on examinations in connection with IB.  They are paid, as indeed are GPs, but on a different basis.  The training and expertise is intended to lead to EMPs dealing properly with the matters before them.  Their reports are, of course, only evidence.  The EMP does not make the decision on benefit entitlement.  He is, as Mr Kirk submits, qualified and giving a professional opinion based on history, examination and observation.  There is no evidence that EMPs are in any way pressurised to draw up reports which are unfavourable or indeed favourable to claimants undergoing the personal capability assessment.  Their relationship with the claimant should be one of impartiality.  I have no evidence it is otherwise.  An EMP has no continuing relationship with a claimant.  He may or may not accept what a claimant tells him depending on whether what he is told accords with examination, treatment, observation and other history.  EMPs will therefore mention observed inconsistencies and other inconsistencies in their reports.

15.	A GP on the other hand has a continuing relationship with his patient.  The GP is concerned with the long term patient relationship and treatment and the EMP is concerned with assessment on the personal capability assessment.  The GP will generally proceed on the basis of the complaints made by his patient and how to treat and manage those complaints.  The EMP is concerned with the authenticity and effect of those complaints though it must be emphasised that his approach should be an impartial one.

16.	An EMP will mention inconsistencies.  A GP may or may not consider it necessary to do so.  An EMP completing an IB report is required to do so in a detailed format which involves setting out certain factors (behaviour observed, clinical examination, findings etc) which feed into his opinion.  A GP has no need to set these out if he does not wish to do so.

17.	There is nothing wrong with a tribunal preferring a medical report which sets out the data on which it is based to one which does not.  The supported opinion can reasonably be preferred though there is, of course, no obligation so to do.  That is not the issue which I have to consider.  Essentially Mrs Carty is concerned with an issue of natural justice or fair trial.  She puts it thus:

	“The point at issue here is a net one.  It is simply whether in not making enquiries as to whether the GP letter was based on examination and possibly considering adjournment to obtain those examination findings the tribunal failed to conduct a fair hearing”  

	Though net it is not an easy matter to decide.  The implications of the requirement to conduct a fair hearing vary from case to case depending on the circumstances and it is not desirable to lay down general rules in relation to those implications.  

18.	As I understand it Mrs Carty does not contend that the tribunal was not entitled to prefer the EMP report because it was grounded on a reported examination.  It would be strange if she did so contend. 	Any judicial body is free in its preference of evidence and there is certainly nothing perverse or unreasonable in this tribunal preferring a report where the opinion given includes the data on which it was based to one which does not.  Similarly there is nothing perverse or unreasonable in a tribunal body preferring a report which gives more comprehensive data (eg formal and informal testing) to one which does not give such comprehensive data.  

19.	EMP reports are very comprehensive in the sections dealing with physical symptoms.  They include sections on the claimant’s medical background, the claimant’s own description of functional ability, the choice of descriptors and (most relevantly here) the medical evidence used to support the EMP’s choice of descriptors.  These factors include:-

		“(1)	Prominent features of functional ability relevant to daily living

(2)	Behaviour observed during assessment 
(3)	Relevant features of clinical examination
(4)	Summary of functional ability” 

		where the EMP is instructed to:

	“Evaluate the customer’s account of their functional ability in light of the above.”

	The EMP is also instructed to:

“Give your medical opinion on whether the condition is likely to vary during the average week and if the function can be carried out regularly and repeatedly taking into account fluctuation, pain, fatigue, stiffness, breathlessness and balance problems.”

20.	From the above it will be seen that the reports are tailored very much to the personal capability assessment which is done by the decision-maker not by the doctor.  It is, however, an assessment.  It is not based on an assumption that a claimant’s account of functional ability whether in the earlier questionnaire or as given to the EMP is accurate.  Neither of course is there an assumption that either is inaccurate.  What is done is that that account is evaluated against observed behaviour and clinical examination findings taking into account variations and fluctuations and the effect of pain etc.

21.	The report if properly carried out and accurate may provide a sound basis for the decision-maker’s decision.  At appeal stage it happens at times that there is no disagreement with the EMP’s report but the claimant still considers the benefit should be awarded eg because he can (as is agreed) no longer carry out his former job and thinks that is enough to entitle him to IB even though he is outside the period when the “own occupation” test could be applied. This is but one example of the many cases where the actual clinical findings on examination are not disputed.  Indeed there was no dispute mentioned on them in this case.  The criticism in this case was on the basis of the assessment of ability across certain of the descriptors in the personal capability assessment (eg walking), on the observed behaviour (eg how long the claimant sat at the examination), on the fact that there had been no formal testing of walking, use of stairs and lifting and carrying and on the manner of the examining doctor.  The tribunal acknowledged these criticisms but did not consider they made the EMP report unreliable.  The tribunal commented on the claimant’s GP’s letter as follows:

“She further submitted evidence from [GP], which did not comment on the nature or severity of [the claimant’s] condition as such, but which addressed elements of the statutory test in isolation of any reported examination.”

	It appears obvious that this relates to the GP’s letter of 16 August 2005.  The tribunal’s views on that letter are reasonable.  The letter does not detail the claimant’s back condition, it sets out no examination findings and no details of formal and informal observations.  It is obviously addressed to the personal capability assessment.  It does not indicate what information the letter is based on other than statements by the claimant.  This is not a criticism of the GP’s letter but it does show that the tribunal’s preference for the EMP report was not unreasonable.  It is essentially a matter of fact and as such only to be disturbed if perverse (Krasniqi v Secretary of State for the Home Department C5/2005/2345 paragraph 7).  I see no perversity in this case.

22.	As regards the natural justice point, I begin by saying that I do not consider CDLA/4127/2003 to be a helpful decision as regards the issues in this case.  It is based very much on its own facts.  The tribunal here did not consider the EMP report to be either “inconsistent” or “doubtful” as did Commissioner Williams in CDLA/4127/2003.  It was not, as Commissioner Williams put it, “compromised” by having been altered as suggested by the Department without any declaration to this effect as was the report in CDLA/4127/2003.  Commissioner Williams concludes paragraph 19 by saying:

“Whatever approach it takes, the tribunal must be not only efficient and effective but also fair.  In cases like this it must, in Article 6 terms, equalise the arms.”

	Commissioner Williams wisely does not purport to set out what this means in every case.  It would be almost impossible as well as unwise to do so.  The implications of the obligation to conduct a fair trial will vary widely according to the circumstances of each case.  The decision is of little assistance to me in determining whether or not this obligation was fulfilled in this case.

23.	The basic requirements for a fair hearing are that each party has -

(1)	real and effective access to a court;
(2)	notice of the time and place of the proceedings;
(3)	a real opportunity to present the case sought to be made;
(4)	a right to a reasoned decision.

	The concept of equality of arms requires that there be a fair balance between the opportunity afforded the parties involved in the relevant case.  It does not require the adjudicating body to advise either party as to the manner of presenting his or her case or the evidence to be produced in support of it.  It does not appear that the claimant here was in any way prevented from producing such evidence as she wished.  She had, at the time of notification of the hearing been sent a copy of the Department’s submissions including the EMP’s report (which included examination findings).  She had an adequate opportunity to adduce such evidence as she wished in contradiction to those findings.  She did in fact adduce evidence and she herself made representations at the hearing about the EMP’s report.  Her complaint essentially is that she did not know to have her GP include examination findings in his letter and the tribunal did not ask about whether or not her GP’s letter had been based on an examination and thus did not consider adjourning to obtain the examination findings.  I do not think the requirement to conduct a fair hearing meant that the tribunal had to ask the claimant whether the said letter had been based on an examination.  There was no real dispute that the claimant had a back problem.  The dispute was over the extent of her functional limitations arising therefrom as measured by the personal capability assessment.  The claimant had already produced medicals which included x-ray findings and a report from Mr M Consultant Orthopaedic Surgeon (which included findings on clinical examination).  The clinical findings of Mr M. themselves showed:

“Straight leg raising was 5° on the left, 10° on the right yet she was able to sit upright on the couch touching fingers to ankle.”  

	Both he and the EMP recorded absent left ankle jerk.  Neither he nor the EMP noted muscle spasm.  Both showed some superficial vascular signs and neither recorded any abnormality of reflexes other than in the left ankle.  Both recorded decreased lumbar movements.  It was really only in straight leg raising that there was any discrepancy and as Mr M noted there was perhaps some inconsistency revealed in his findings in relation thereto. The claimant herself did not dispute the EMP’s clinical findings.  The EMP did consider the claimant to have some limitations in rising from sitting and bending or kneeling.

24.	I have considered whether there was anything which should have led the tribunal to enquire further about the GP’s examination findings in exercise of its inquisitorial role.  I do not consider that the tribunal considered that the GP had not carried out an examination.  It does refer to the absence of “reported” examination findings.  The use of the word “reported” indicates to me that it reached no conclusion as to whether an examination had been carried out by the GP as the basis for his letter of 16 August 2005.  The claimant had described flare ups and other variations in her condition so that differences in clinical findings from day to day were possible.  The tribunal had the claimant’s own evidence which it considered.  On the basis of this evidence it awarded additional points.  I can see nothing in the evidence which would have raised the issue of the need to obtain examination findings.  The issue was not expressly raised, the back problem was accepted; there was day to day variation so that clinical findings might vary.  It has not based its decision solely on the medical evidence.  It has found the EMP’s report reliable but it has not wholesale adopted his opinion.  The tribunal was entitled to prefer the EMP’s report but it has also taken into consideration the claimant’s own evidence and seriously considered it.  That being so there was in my view no breach of the inquisitorial role and no breach of the right to a fair hearing.

25.	That being said, I do think it would be good practice for a tribunal to enquire specifically as to whether a GP’s letter has been based on examination.  I do not however think it can be an error of law in every case (and it was not here) to do so though there may be cases where it could be.

26.	There is, however, an inadequacy in the reasons with relation to the claimant’s evidence.  The claimant had given evidence about her limitations.  If accepted this would have led to there being no supersession of the awarding decision.  It is apparent that the tribunal did not find the claimant’s evidence totally acceptable.  That is, of course, a matter for the tribunal.  There is also no universal rule that the tribunal must always explain its assessment of evidence.  The rule is, however, that the reasons must explain the decision.  The claimant here had been in receipt of an award for years.  There was an acceptance of an underlying condition.  There was not full acceptance of the EMP’s views (adopted by the Departmental decision-maker) of the claimant’s functional limitation.  There was acceptance of some part of the claimant’s evidence but there is no indication why the rest was not accepted.

27.	In the circumstances of this case I consider that without some explanation (albeit brief) the reasons were inadequate. I set the decision aside for that reason.  I do not consider that this is a case where I can give the decision which the tribunal should have given.  I therefore remit the matter to a differently constituted tribunal for rehearing and re-determination.  At that hearing the claimant should have available and present to the tribunal any evidence (medical or otherwise) which she wishes to produce in support of her claim, including any examination findings from her GP.

(signed):  M F Brown

Commissioner

22 September 2006