[2007] NISSCSC C1_07_08(IB) (24  May 2007)

Decision No:  C1/07-08(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 8 May 2006

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This case begins as an application by the claimant for leave to appeal against a tribunal decision dated 8 May 2006.  The claimant is represented by Ms Loughrey of Law Centre (Northern Ireland) and the Department by Mrs Bradley of its Decision Making Services Branch.  I held a hearing which the claimant attended and at which Ms Loughrey represented him and which Mrs Bradley also attended.  I grant leave and with the consent of both representatives treat the application as an appeal and determine any questions as if they arose on appeal.

2.	The tribunal had disallowed the claimant’s appeal against a departmental decision dated 5 April 2004.  The decision was in two parts.  It had initially been appealed to an earlier tribunal.  That tribunal’s decision was set aside by the Chief Commissioner (C10/05-06(IB)) on grounds unrelated to this present appeal.  The Chief Commissioner remitted the appeal and it was re-heard by the instant tribunal.  That tribunal, pursuant to C10/05-06(IB) decided that the claimant was entitled to incapacity credits for the period 10 October 2003 to 5 December 2003.  That part of its decision is uncontroversial and not under appeal to me and I say no more about it.  It dealt with the first part of the Department’s decision.  The tribunal further decided, however, that the second part of the Department’s decision was correct and that -

(1)	The claimant had failed to submit himself to a medical examination on 5 December 2003 as required by written notice sent at least seven days beforehand (it was common ground that the notice had been properly sent).

(2)	The claimant had not shown good cause for doing so.

(3)	He was therefore to be treated as capable of work and not entitled to incapacity credits from and including 6 December 2003.

It is common ground that if (1) and (2) above are correct then (3) is also correct.

3.	The background facts of the case are clear.  The claimant was aged 44 at the relevant time.  He claimed incapacity benefit (IB) in 2002 by reason of ME (PVF) and pulled ligaments in both wrists.  As he had insufficient contributions conditions for entitlement to IB he was awarded incapacity credits.

4.	The claimant was sent an IB50 questionnaire on 22 July 2003 which was returned completed on 27 July 2003.  This document was before the tribunal.  He was sent for a medical on 21 November 2003 but said he was unwell and could not attend.  This was accepted.  On 27 November 2003 the claimant was sent a letter asking him to attend a medical on 5 December 2003.  He attended the medical.  The Medical Officer recorded that before being asked to do so the claimant informed the Medical Officer that he would not take clothes off to be examined and did not want the doctor to attempt to move his limbs etc.  He said he felt too unwell, too painful and was not happy to have this physical examination.  The doctor after discussing the matter with a colleague and noting a comment by the claimant at page 17 of the IB50 terminated the examination.  The comment at page 17 is in a section of the IB50 relating to medical examination.  It informs the claimant that he may be called for a medical examination and asks him to tell the Department about any special needs he may have if he was asked to attend.  In the space left for this the claimant wrote:

“I will not be put throught [sic] this.  Ur [sic] doctors tell lies.  That means my health problems are made worse.”

5.	The Department disallowed the IB credits under regulation 8(1) and (2) of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995.  Those provisions so far as relevant read as follows:

“8.-(1) Where it falls to be determined whether a person is capable of work, he may be called by or on behalf of a doctor approved by the Department to attend for a medical examination.

(2)  … where a person fails without good cause to attend for or submit himself to such an examination, he shall be treated as capable of work.”
6.	The tribunal concluded that the claimant had refused to undergo a medical examination and had not shown good cause for refusing to do so.  I set out its reasoning as an appendix to this decision below.

7.	The claimant appealed.  The grounds were set out on an OSSC1 form and amplified in written skeleton argument and refined at hearing.  The grounds, as Ms Loughrey confirmed at hearing, were essentially twofold:

(1)	That the tribunal had failed to have adequate regard to the claimant’s condition, symptoms arising therefrom and the activities the Medical Officer had to measure as considered against the guidance given to Medical Officers.

(2)	That the tribunal’s reasoning was inadequate in that it had not indicated why it accepted the clinical judgment of the Medical Officer that he could not conduct an effective assessment without removal of clothing.

8.	Mrs Bradley opposed the appeal.  She submitted that the tribunal had not erred in law.  It had rejected the claimant’s evidence that he could not remove clothing due to pain.  It had taken account of his GP’s responses to questions and reached a conclusion that he was not so severely affected as to prevent removal of clothing for medical examination without undue pain or discomfort.  It was entitled to this conclusion.  Quoting from CIB 849/2001 (a decision of Mr Commissioner Turnbull in Great Britain) Mrs Bradley submitted that:

“A person “fails” to submit himself to an examination not only if he absolutely refuses to be examined, but also if he seeks to impose as a condition of being examined a term which would render the examination useless for the purpose for which it is required.”

	She submitted further that the reasons for decision were adequate to explain it.

9.	Ms Loughrey in rejoinder submitted that CIB 849/2001 was distinguishable from the instant case.  The claimant here was prepared to be examined but stipulated that he must remain dressed.

10.	I begin by stating that section 121 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 interprets medical examination to include bacteriological and radiographical tests and similar investigations.  That indicates that a medical examination can include not merely a physical examination but the undergoing of much more refined testing.  It is important also to note that the phraseology in regulation 8 is that the claimant is to “submit himself” to a “medical examination” (my underlining).  I am in agreement with the Department and indeed I did not understand Ms Loughrey to dispute that the extent and format of the examination was for the clinician performing it.  The matter of when it might be reasonable to refuse to undergo an examination is dealt with later.

11.	I understand Ms Loughrey to be arguing that the claimant would have undergone an examination while dressed and without allowing the doctor to attempt to move his limbs and the doctor should not therefore have terminated the examination and the tribunal should not have concluded that he had refused to submit to an examination.  Ms Loughrey made reference to the Department’s guidance to examining doctors, an extract from which and a letter (dated 17 June from Dr G) were part of the papers before the tribunal.  She contended that the examining doctor could have carried out some other form of examination and that the tribunal had erred in not ascertaining that the doctor’s professional judgment was correct and not considering whether there were alternatives available.

12.	I consider this argument to be fundamentally misconceived.  The nature and extent of the examination is a matter for the examining doctor.  Neither a claimant, nor a tribunal, nor a Commissioner can dictate the nature of that examination.  It is fundamentally a medical matter and for the judgment of the clinician in each individual case.  The tenor of the legislation is that the clamant must submit or undergo the examination.  This indicates that control is not with the claimant.  It would be strange indeed were it otherwise as a claimant does not necessarily have any medical knowledge to enable him to say what is appropriate or otherwise.  The departmental guidance to examining doctors is not of any legal force but does make clear that:

“The precise extent and nature of the examination will depend entirely on the circumstances of each individual case.  You must use your medical professional judgement to decide what examination is indicated, and also whether the claimant should be asked to remove any clothing in order to complete this assessment effectively.”

	The guidance continues to outline circumstances where undressing may or may not be necessary.  Ms Loughrey construes this guidance to mean that in this case the doctor if following the guidance should not have asked the claimant to undress.  It does not appear to me that the guidance leads to that conclusion.  It refers to usually being able to complete a musculoskeletal overview examination whilst the claimant is wearing loose indoor clothing provided the doctor is checking to confirm normality.  This is the “examination of choice” in the first instance.  If abnormality is suspected the guidance is that it would be usual to ask the claimant to remove items of clothing.

	The point here, however, is that at the outset and (it is not even clear whether he was asked to undress or if so to what extent) the claimant started to lay down conditions of what he would or would not do.  He said he would not undress and would not allow the doctor to attempt to move his limbs.  At that stage and noting his previous IB50 remarks the doctor decided to terminate the examination.  It is quite apparent that he did so because the claimant was fettering the doctor’s ability to decide what should be the extent of the examination.  The claimant was attempting to control and confine the examination and not permit the doctor to decide on what should be included in it. The tribunal concluded that the doctor considered that an effective assessment required removal of clothing.  That is by no means clear from the evidence.  What is clear is that the doctor was not prepared to attempt an examination where the claimant was dictating from the outset what the extent of it could be.

13.	I consider that the examining doctor was entitled, on that basis, to conclude that the claimant would not submit to examination according to the doctor’s clinical judgment.  A medical examination is more than an examination by a doctor.  It is examination by a doctor using his professional expertise as to the nature and extent thereof.  The claimant would not permit the doctor to use that expertise.  He would not therefore submit to a medical examination.

14.	I do not, as indicated above, agree with the tribunal’s reasoning that the doctor considered it necessary for the claimant to undress.  That does not vitiate the decision as its conclusion that the claimant had refused to submit to medical examination is the only possible one given the evidence.

15.	Does this then leave a claimant penalised for refusing to undergo anything a doctor demands?  The answer to that must be no.  That cannot happen due to the provision of regulation 8(2).  Certain demands may not be within the ambit of a clinical examination.  In addition if a claimant has “good cause” for refusing to submit to an examination then he will not be disentitled for having failed to submit to same. Regulation 9 sets out factors which are to be taken into account in determining whether a claimant has such good cause but those are only factors.  There is no definition of good cause.  It may therefore apply in many circumstances but must obviously constitute good cause with all the implications of objective reasonableness which that phrase implies.

16.	The tribunal here concluded that the claimant had not shown good cause.  Having considered the evidence, including the report of the claimant’s GP, it considered that the claimant’s evidence was not reliable and that he exaggerated his condition.  As has been repeatedly stated the assessment of evidence is a matter for the tribunal and not to be disturbed unless perverse.  As Lord Hoffman put it, giving the unanimous judgment of the House of Lords in Piglowska v Piglowski [1999] 3 AER 632 at 643 – 644:

“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 BMLR 149 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.”

The second point follows from the first.  The exigencies of daily court room life are such that reasons for judgment will always be capable of having been better expressed …  These reasons should be read on the assumption that, unless he has demonstrated the contrary, the judge knew how he should perform his functions and which matters he should take into account.”

17.	I am bound by and agree with those views.  Applying them to this case where the tribunal was assessing credibility its conclusion appears reasonable. It was not saying the claimant had no health problems. It reasoned that having considered all the evidence and taking into account as it was entitled to do, its impression of the claimant as a witness, it considered him to have exaggerated his difficulties on the relevant day.  I consider that conclusion to be sustainable and the assessment of evidence to be reasonable.  The GP indeed considered the claimant to have problems but his written report indicated no clinical examination findings to support its view and in any event did not indicate that he was unable to undress or have his limbs moved or undergo examination.  This matter has been adequately dealt with and reasoned by the tribunal.

18.	As regards the ground relating to adequacy of reasons, I again consider there to be no merit in this ground.  The tribunal’s reasons must adequately explain its decision.  In this case it is quite clear that the tribunal considered, as it was entitled to do, that the clinician’s judgment as to the extent of the examination should be adhered to unless there was some reason why not.  As I have mentioned above I consider it to be within the clinician’s judgment to decide the extent and nature of the medical examination. It is not for a claimant or a tribunal (neither being a medical officer approved by the Department and trained for the purpose) to determine the extent of the examination.  That is for the doctor and it was adequate reasoning for the tribunal to say that it accepted his judgment thereon.  It did not need to go further.  Other matters come in at the “good cause” stage and were adequately dealt with and reasoned at that stage.

19.	Even if I am wrong in the above I consider the doctor would have been entitled to include as part of his examination the removal of at least some clothing and the attempted movement (by the doctor) of limbs.  This claimant was claiming benefit for physical complaints allegedly producing restrictions in his ability to sit comfortably, to rise from sitting to standing, to bend or kneel, to stand unassisted, to use stairs and pain on various other physical activities.  He also alleged that he had pulled ligaments in both arms, had asthma and was born with a weakness down the right side of his body and spent most of his time in bed.  It does not appear unreasonable for the doctor wishing to examine him to check on his situation by examining him undressed and to attempt to move limbs.

20.	For all the above reasons I consider there to be no merit in this appeal and I dismiss it.  The tribunal’s decision is confirmed.

(signed):  M F Brown

Commissioner

24 May 2007

Decision No:  C1/07-08(IB)

APPENDIX

TRIBUNAL’S FULL STATEMENT OF REASONS

“The error of law which resulted in the setting aside of the previous tribunal’s decision has been addressed by the Department’s revised decision given on 23 March 2006, with which the tribunal concurs.

It is a matter for the clinical judgment of the Examining Medical Practitioner in any particular case to decide on the nature and extent of the examination necessary to enable him to complete the assessment effectively.  There will be cases in which an effective assessment can be completed without removal of clothing, but in this case it is clear that the Examining Medical Practitioner considered that an effective assessment could not be completed without removal of clothing, and the tribunal has no reason to disagree with that view.

The tribunal therefore concludes that in refusing to remove clothing, [the claimant] was in effect refusing to submit to medical examination within the meaning of Regulation 8 of the SS (Incapacity for Work) (General) Regulations (NI) 1995.  In reaching this conclusion the tribunal took into account decision CIB 849/2001 in which it was held that “a person fails to submit to an examination not only if, he absolutely refuses to be examined but also if he seeks to impose as a condition of being examined a term which would render the examination useless, for the purpose for which it is required”.

The tribunal then considered whether [the claimant] had good cause for failure to submit to further examination.

[The claimant] asserts that his refusal to remove articles of clothing was due to inability to do so, or to do so without causing pain.  This assertion in [sic] unsupported by any medical evidence.

In this respect the tribunal has considered carefully.  Dr P’s responses to the questionnaire dated 2 June 2005 submitted by the appellant’s representative in which Dr P confirmed that at the relevant time the appellant was suffering from post viral fatigue syndrome and wrist ligament pains, and the main symptoms are listed as “generalised pains, fatigues easily, poor sleep”.

This does not indicate a condition so severe as to prevent [the claimant] from removing clothing for purposes of a medical examination, or prevent him so doing without undue pain or discomfort.

The tribunal does not accept [the claimant’s] own evidence in this respect and considers that there was considerable overstatement of his condition.  The tribunal considers that his reply on page 17 of the Incapacity for Work Questionnaire does indicate a pre-disposition not to co-operate fully.

The tribunal therefore concludes that [the claimant] has not shown and did not have, good cause for his refusal to submit to the medical examination.”