CMcM-v-Department for Social Development (DLA) [2012] NICom 252

Decision No:  C13/11-12(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

DISABILITY LIVING ALLOWANCE

Appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 2 March 2011

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The appellant appeals against the decision of the appeal tribunal sitting at Belfast on 2 March 2011 with the leave of the legally qualified tribunal member.

2.	He has not requested an oral hearing of the appeal, and I consider that the appeal can properly be determined without a hearing.

3.	My decision is that the decision of the appeal tribunal is not erroneous in point of law.  I therefore dismiss the appeal.  My reasons are as set out below.

REASONS

Background

4.	The appellant made a claim for disability living allowance (DLA) from and including 30 July 2010 by reason of chronic fatigue syndrome, fibromyalgia and asthma.  In his claim form he stated that he could not walk at all without feeling severe discomfort, and required guidance or supervision out of doors on unfamiliar routes.  He indicated that he needed attention in connection with various bodily functions by day and by night, that he required continual supervision during the day to avoid danger to himself or others and that he could not prepare a cooked main meal for himself.  A general practitioner (GP) factual report was provided to the Department by Dr McG…., dated 20 August 2010, stating that the appellant was self-caring and independently mobile.  The appellant’s claim was disallowed by a decision of the Department dated 31 August 2010, and this decision was confirmed by way of a reconsideration decision on 7 September 2010.

5.	The appellant appealed to a tribunal which considered the appeal on 2 March 2011.  In advance of the hearing on 15 November 2010 the appellant sent the tribunal an 11 page letter disputing Dr McG….’s report and making submissions in relation to his condition.  At an oral hearing on 2 March 2011, the tribunal considered this letter, along with the Department’s submission, the appellant’s GP notes and records, and heard evidence from the appellant and his father.  On 3 March 2011 the appeal tribunal’s decision was issued to the appellant, disallowing the appeal.

6.	Following a request made on 7 March 2011, a statement of reasons for the decision of the appeal tribunal was sent to the appellant on 13 May 2011.  In an application received by the Appeals Service on 1 June 2011, the appellant sought leave to appeal from the appeal tribunal’s decision to the Social Security Commissioner.  The application ran to seven pages and was accompanied by three Commissioners’ decisions and two medical reports.  The grounds were, in summary:

	1.	that the appeal tribunal failed to make a specific finding as to whether his condition of chronic fatigue syndrome was a physical or mental disablement;

	2.	that the appeal tribunal’s decision was based on disputed medical evidence;

	3.	that the appeal tribunal failed to give proper consideration to a material fact or provide adequate reasoning.

7.	The legally qualified member (LQM) of the appeal tribunal considered the application for leave to appeal to the Social Security Commissioner and, on 21 June 2011, granted leave to appeal.  He gives no reasons for granting leave to appeal.

8.	When determining an application for leave to appeal, there is no express requirement under regulation 58 of the Social Security and Child Support (Decisions and Appeals) Regulations (NI) 1999 for the LQM to do anything but record his decision in writing.  However, the pro forma COMM 12 document, approved by the President of Appeal Tribunals for Northern Ireland for recording such decisions, contains a space for the LQM to identify the point or points of law on which leave to appeal has been granted.  As the LQM has not completed this part of the pro forma, I must assume that he has granted leave to appeal on all the grounds raised by the appellant.

9.	Where an LQM decides, as here, that there is an arguable case that the appeal tribunal which he or she has chaired has erred in law, I consider that it would be most helpful if the LQM could complete the relevant pro forma to specify the errors of law which he or she accepts that the appeal tribunal may have made.  More particularly in the case of lengthy applications, if there are aspects of the application for leave to appeal which the LQM feels do not give rise to an arguable error of law, it would enhance the efficiency of the system of statutory appeals if those were stated or were otherwise evident from the completed pro forma.

10.	I make this general point without particular reference to the appellant’s grounds in the present case.  However, I will now turn to these.

Grounds of Appeal

11.	On 29 June 2011 the appellant lodged his appeal to the Social Security Commissioner.  He did not request an oral hearing of the appeal.  He relies upon the same grounds as submitted to the LQM and his submissions were accompanied by copies of Commissioners’ decisions CDLA/4486/2000, CSDLA/0946/2001, CDLA/636/2009 and reports from Dr B…… and Dr E……..

12.	The appellant’s first ground is to the effect that the tribunal had failed to properly evaluate the medical evidence and to make a finding on whether chronic fatigue syndrome was a physical disablement.  He asserts that the tribunal in the present case evaluated and regarded the lack of evidence of a physical disability cause for his disabilities as inconsistent with the existence of a physical disability.  He submits that the tribunal should have found that he was suffering from a physical disability.

13.	The appellant refers to the decision of Commissioner Bano in CDLA/4486/2000.  In that case a tribunal had found that a claimant with a diagnosis of chronic fatigue syndrome had no physical disablement.  I will discuss this case further below.

14.	The appellant further refers to CSDLA/0946/2001.  In that case, Scottish Chief Commissioner May accepted that the lack of a specific finding by a tribunal as to whether the claimant’s condition of chronic fatigue syndrome was a physical or mental disablement was in error of law.  Again this is a case which I will discuss further below.

15.	The applicant raises ancillary points relating to a “Blue Badge” application supported by Dr D……. and to the tribunal’s observation of him.

16.	The appellant’s second ground challenges the tribunal’s approach to the medical evidence in the appeal.  In this context, the appellant relies on CDLA/636/2009.  In that case, Deputy Judge Ovey held that a tribunal, when preferring a heavily disputed report of an examining medical practitioner (EMP) over the claimant’s evidence, should have given reasons to explain its preference.  The appellant challenged the tribunal’s reliance on a GP factual report by Dr McG….. who worked in the appellant’s GP’s practice, but who had never examined the appellant.  His challenge was in terms of the reliability of the report in the absence of the doctor having first-hand knowledge of him, in terms of inaccuracies and omissions in the report, and in terms of the guidelines followed by the Department for Work and Pensions (DWP) in Great Britain in relation to such reports.

17.	Thirdly, the appellant contends that the tribunal had failed to give proper consideration to a material fact or to provide adequate reasoning.  In particular, the appellant indicates that the evidence showed that he spent considerable periods of the day in bed, and submits that the tribunal had not had regard to his care needs during this period.  He challenges the approach to a report of an occupational therapist and provided further evidence in the form of letters from Dr E…….. and Dr B…….. 

The Department’s response

18.	Mr Kirk has replied on behalf of the Department.  In response to the first ground he submits that the tribunal in this case had clearly accepted that the appellant’s condition was one that could give rise to both personal care and mobility needs.  He noted that the tribunal had not specifically made any findings to whether the appellant suffered from a physical or mental condition but had instead moved on to consider if the contended needs satisfied the entitlement conditions for an award of either component of DLA.  Therefore, he submitted, the tribunal had clearly accepted that the appellant’s condition was one that could give rise to both care and mobility needs.

19.	In addition, he submits that the tribunal had clearly indicated why it rejected the evidence of Dr D…….. and accepted the evidence of Dr McG…...  Specifically, it found Dr McG….’s. evidence to be consistent with the medical notes and records it consulted.  Therefore he submits that the tribunal had not erred as contended and that there is no merit in the first ground of appeal.

20.	Under the heading of the second ground, Mr Kirk submits that the appellant is stating three distinct grounds.  He addresses each point in turn.  He submits that the present case can be distinguished from CDLA/636/2009.  He submits that the appeal tribunal was aware of the appellant’s criticisms of Dr McG….’s report.  He submits that the tribunal’s reasoning clearly indicated that it took account of the appellant’s criticisms of Dr McG….’s report and it had explained why it rejected those criticisms.

21.	On the third ground, Mr Kirk submits that the appeal tribunal had made adequate findings of fact and had been entitled to reach the decision it had, taking into account evidence which included consideration of the period of time the appellant remained in bed and the use of occupational therapy aids.  He submits that the letters from Dr E….. and Dr B…… do not assist the appellant.  One did not exist at the time of the tribunal hearing and the other does not advance the appellant’s case.

The Appellant’s reply

22.	The appellant has responded on 24 October 2011.  He expresses disagreement with the Department’s submissions.  He highlights the evidence before the tribunal that his GP, Dr D…….., had completed a “Blue Badge” application, stating that his walking was less than 50 metres.  He emphasises the fact that he had been given various occupational therapy aids following assessment as evidence of disability and of care needs.  He questions the value of the report of Dr McG…. in the light of the guidance issued by the DWP in Great Britain.

23.	He further challenges the lack of an EMP report in his case, and emphasizes that delay in bringing his case to hearing contributed to his consent to proceeding without such a report being sought.  He pointed out the appeal tribunal’s reference to his unusual gait and emphasized that the tribunal had not made a finding in relation to his manner of walking, a matter to which they were required to have consideration in addition to distance, speed and time of walking.

24.	The appellant further challenges the approach taken to the time he spent resting in bed and highlights the value of the letters he submitted from Dr E……. and Dr B……..

25.	Mr Kirk had no further comments in response to this.

Assessment

The legislation

26.	The legislation governing the grounds of entitlement to the high rate of the mobility component is contained in section 73 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 and regulation 12 of the Social Security (Disability Living Allowance) Regulations (Northern Ireland) 1992.  This reads:

	73.	The mobility component.
		(1)  Subject to the provisions of this Act, a person shall be entitled to the mobility component of a disability living allowance for any period in which he is over the relevant age and throughout which—

		(a)  he is suffering from physical disablement such that he is either unable to walk or virtually unable to do so;…

	12.—(1)	A person is to be taken to satisfy the conditions mentioned in section 37ZC(1)(a) (unable or virtually unable to walk) only in the following circumstances—
		(a)  his physical condition as a whole is such that, without having regard to circumstances peculiar to that person as to place of residence or as to place of, or nature of, employment—

		(i)  he is unable to walk,

		(ii)  his ability to walk out of doors is so limited, as regards the distance over which or the speed at which or the length of time for which or the manner in which he can make progress on foot without severe discomfort, that he is virtually unable to walk, …

Absence of finding regarding physical disablement

27.	The appellant’s first point is that the appeal tribunal has failed to make any specific finding as to whether his illness was a physical disablement, as required by section 73(1)(a).  The significance of this is that, while needs for attention or supervision arising from either a physical or a mental disablement can be taken into account by an appeal tribunal considering entitlement to the care component, only walking difficulties arising from physical disablement are material from the point of view of a consideration of entitlement to the high rate of the mobility component.

28.	The appeal tribunal did not make a specific finding on whether chronic fatigue syndrome, as experienced by the appellant, was a mental or a physical condition.  The approach of the appeal tribunal was to consider on all the evidence whether the appellant was either unable to walk or virtually unable to walk.  The appeal tribunal made findings of fact in relation to this aspect, holding that the appellant was able to walk at least 100 yards before the onset of severe discomfort.  From this finding the appeal tribunal made the judgment that the appellant was not virtually unable to walk.  This would be a reasonable conclusion, if supported by evidence, in the sense that it was open to them to reach this conclusion on the basis of such findings.

29.	The Commissioner in CDLA/4486/2000, the case relied on by the appellant, held that an appeal tribunal was not entitled to conclude that an appellant was not suffering from any physical disablement on the basis of a lack of explanation for his physical symptoms.  The Commissioner further endorsed the view that it is the effects of a condition, rather than its cause, which must be considered in determining whether a condition is physical.  The appeal tribunal in the present case, in focusing on the effects of chronic fatigue syndrome, in fact adopted the approach advocated in the decision relied on by the appellant.  Having concluded on the basis of the effects of the condition that the appellant was not unable to walk or virtually unable to walk, the question is whether the appeal tribunal was required to specifically state whether any limitation on the appellant’s walking ability arose from a physical or from a mental disablement.

30.	The appellant relies upon CSDLA/0946/2001.  In that case, Scottish Chief Commissioner May, following a concession by the Secretary of State’s representative, set aside a decision of an appeal tribunal for failing to address whether or not the claimant’s condition of chronic fatigue syndrome was a physical or mental disablement.  The tribunal in that case had made a finding that the appellant was not virtually unable to walk, based on evidence of her walking ability.  It goes without saying that a failure to make material findings of fact is an error of law.  However, to my mind, the fact that the appeal tribunal in that case had proceeded to make findings on the claimant’s walking limitations implied that it considered that the claimant suffered from a physical disablement.  The fact that it did not expressly make such a finding would not have materially altered the conclusion reached.

31.	I respectfully cannot agree with the learned Commissioner in CSDLA/0946/2001 to the extent that his decision implies that, where the question of whether a person’s “physical condition as a whole is such that … he is virtually unable to walk” (arising from regulation 12 of the Social Security (Disability Living Allowance) Regulations (Northern Ireland) 1992) is answered in the negative, a tribunal will materially err in law if it has not separately and expressly addressed the question of whether a person “is suffering from physical disablement…” (arising from section 73(1)(a) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992).  If the effects of the condition which restrict mobility are addressed and are not judged sufficient to give rise to potential entitlement, a failure to state expressly that the cause of the condition was a physical disablement cannot affect the outcome of the appeal.  Therefore it is not a material error of law.  The appeal tribunal in the present case did not expressly accept that chronic fatigue syndrome was a physical disablement.  However, I consider that the fact that they considered the question of whether the appellant was virtually unable to walk implied that this was the case.  In any event, in my judgment the appeal tribunal has not made a material error of law by failing expressly to state that the appellant suffered from a physical disablement.

Treatment of disputed medical evidence

32.	The second point relied upon by the appellant relates to conflicting medical evidence.  The appellant first observes that Dr McG.…, who completed a GP factual report relating to him, had never met nor examined him, and had prepared the report solely from his medical file.  He secondly alleges inaccuracies in the report relating to diagnosis of a “hiatus hernia” and an incomplete list of medication.  He thirdly questions the adequacy of the tribunal’s reasons for relying on the report of Dr McG…. without addressing his criticisms of it.

33.	The appellant relies upon CDLA/636/2009 in support of this point.  In that case a report of an EMP was disputed by the claimant.  Deputy Judge Ovey commented that “since the report was so heavily contested on grounds which went some way to putting in issue the basis of the conclusions reached, those criticisms required to be addressed to some degree”.  The same principle was applied in this jurisdiction by the Tribunal of Commissioners in R3/01(IB)(T) (see paragraphs 17 to 20).  I see nothing controversial in the basic proposition advanced by the appellant that an appeal tribunal must deal with the criticisms raised by an appellant of any medical evidence relating to him.  I will consider below whether the relevant principles were observed in the present case.

34.	The appellant makes the initial point that guidelines employed by the DWP in Great Britain suggest that GPs completing factual reports should have long term knowledge of the patient.  He argues that it sets a “dangerous new precedent” that a doctor who has never met, examined or had any dealings with a patient can come to conclusions based on their knowledge, experience or personal opinion of a condition, without any assessment of the claimant’s condition or care or mobility needs, and by implication that this can influence a tribunal’s decision.

35.	Was it an error of law for the appeal tribunal to consider or rely upon the factual report prepared by Dr McG…. solely on the basis of the appellant’s medical records?  The short answer is no.  An appeal tribunal, as is well established, is not subject to the common law rules of evidence.  Referring to the legislation then in force in Great Britain, which was exactly parallel to the legislation which remains in force in Northern Ireland, Commissioner Bano stated in CDLA/2014/2004 that:

	10.	The Social Security and Child Support (Decisions and Appeals) Regulations 1999 do not expressly deal with the admissibility of evidence, but it is has long been held by Commissioners that social security tribunals are not bound by the rules of admissibility of evidence which apply in the ordinary courts-see, for example, R(G) 1/51, R(U)12/56 and R(SB)5/82.  In R v Deputy Industrial Injuries Commissioner ex parte Moore [1965] 1 QB 456 it was held that the absence of regulations which were empowered by section 51(1) of the National Insurance (Industrial Injuries) Act 1946 for prescribing the evidence to be required in connection with the determination of a claim was an indication that Parliament did not intend that the strict rules of evidence should apply.  In R(U) 5/77 Chief Commissioner Temple held, citing Moore, that the statutory authorities dealing with national insurance matters exercise an inquisitorial jurisdiction, so that the strict rules of evidence applicable to adversarial cases do not apply in proceedings before those authorities.  Paragraph 4 of Schedule 5 of the Social Security Act 1998 also contains a power, which has not been exercised in relation to tribunals, for provision to be made as to the manner in which any evidence is to be produced, so that the reasoning in Moore also applies to tribunals constituted under the 1998 Act.

	11.	Although appeal tribunals are not therefore bound by the strict rules of evidence, it does not follow that those rules have no relevance in tribunal proceedings.  In particular, there is nothing which empowers tribunals to override any privilege of a witness not to give evidence, for example, privilege in relation to solicitor-client communications and privilege against self-incrimination.  Indeed, in cases where a witness is not legally represented, tribunals should be astute to ensure that the rights of the witness are fully protected.

	12.	Common law rules of evidence will frequently be relevant in the evaluation of evidence, since the considerations which have led to evidence being inadmissible at common law will usually affect its weight in proceedings where the evidence can be admitted.  Thus, in R(SB) 5/82 it was held that although a tribunal could admit hearsay evidence, it should carefully weigh up its probative value before doing so, bearing in mind that the original maker of the statement is not present at the hearing to be questioned about what he actually saw.  In relation to opinion evidence, the fact that a witness is not a qualified expert will not make the evidence inadmissible before a tribunal, but may properly be taken into account by the tribunal in deciding what weight the evidence should be given.

36.	The statement of law at paragraph 10 was approved in Northern Ireland by Commissioner Brown in C29/04-05(DLA) at paragraph 20 and I consider that it remains an accurate statement regarding evidence before appeal tribunals in Northern Ireland, which continue to function in accordance with the Social Security (Decisions and Appeals) Regulations (Northern Ireland) 1999.  The fact that Dr McG…. did not have first hand knowledge of the appellant did not render his evidence inadmissible.  It may, however, have affected the weight which could properly be given to it.  In assessing the weight to be given to it, as discussed below, it is clear that the tribunal compared the opinions of Dr McG….against other evidence evident from the appellant’s GP records.

37.	The appellant’s basic complaint regarding Dr McG….’s evidence is one of unfairness.  It is in this context that the criticisms levelled at the evidence by the appellant have to be considered.  The appellant had flagged up his concerns about Dr McG….’s report in his eleven-page letter of 15 November 2010.  Six pages of the letter amounted to a section by section critique of the report.  It is evident from the record of the appeal tribunal proceedings that the chairman was aware of the issue of the appellant’s dissatisfaction with Dr McG….’s report, having considered the letter of 15 November.

38.	It is further evident from the record that the appellant, then represented by L……. M……… of the Democratic Unionist Party constituency office, was offered the opportunity to have the proceedings adjourned in order to obtain an EMP report in the light of those criticisms.  This would enable the appeal tribunal to have a report before them containing the opinions of a doctor who had examined and made clinical findings about the appellant before reaching those opinions.  Having been given an opportunity to consider this possibility for a few minutes outside the hearing room, the appellant indicated that he wished to proceed and to address the conflicts in medical evidence by way of the tribunal taking evidence from him.  In his submissions received on 24 October 2011 the appellant complains that he was not afforded the opportunity of an EMP report before the date of hearing on 2 March 2011, but that does not alter the position that the tribunal offered him the opportunity when the matter came before them.

39.	The criticisms made by the appellant of Dr McG….’s evidence are in essence:

	a)	that he had never been seen or examined by Dr McG…..;

	b)	that the guidance of the DWP in Great Britain suggested that his GP should have long term knowledge of the patient;

	c)	that, although Dr McG….. referred to chronic fatigue syndrome, he did not refer to fibromyalgia;

	d)	that Dr McG….. referred to a hiatus hernia which had been found not to be a cause of any difficulties;

	e)	that Dr McG….. did not refer to swallowing problems which led to a hospital admission on 16 August 2010;

	f)	that Dr McG…..’s description of his symptoms as “constant” was accurate but inadequate;

	g)	that Dr McG…. had not mentioned that the appellant took domperidone 10mg, buscanpan/hyosine butlybromide, and for a six week period from 16 August 2010, esomeprazole 40mg, instead of rabeprazole;

	h)	that Dr McG…. did not give details of treatment for chronic fatigue and how he had been refused treatment;

	i)	that, since Dr McG…. had indicated that he spent long periods in bed, the appellant rhetorically asked how he could find him to be “independently mobile”;

	j)	that Dr McG…. did not state that his antidepressants were stopped due to side-effects;

	k)	that Dr McG…. was not knowledgeable about chronic fatigue syndrome.

40.	A significant purpose of medical records is to enable a medical practice to function on the basis that more than one GP may see a particular patient.  They provide for the situation where a doctor is on holiday, maternity leave or sick leave, or retires, and where colleagues or a locum cover that doctor’s work.  They record enough information for a GP seeing a patient for the first time to be informed as to the history of that patient’s past presentations to a surgery, what active medical problems he or she has, what treatment he or she has by way of prescribed medication, and what referrals and investigations have been carried out.  While Dr McG…. might not have known the appellant’s personality, or family or social history, the medical records of the practice would have given Dr McG…. sufficient information to complete the GP factual report.

41.	The standard practice of disability appeal tribunals in Northern Ireland is to seek consent for the release of the appellant’s medical records in advance of the hearing.  A benefit of this is to enable the medical member in particular to assess the extent of an appellant’s physical or mental disablement by reference to objective evidence of the record of an appellant’s complaint of a particular condition, and any subsequent referral, investigation and treatment by medical professionals.  It can help to assess the level of disability where reports from other professionals such as occupational therapists or psychologists are available among these records.  The appeal tribunal had the appellant’s medical records before it, which the appellant and his representative were entitled to see.  Therefore, the appeal tribunal was in as good a position as Dr McG…. to assess the appellant’s medical background from the records.

42.	The appellant had referred to his criticisms of Dr McG….’s report in his written submission to the appeal tribunal.  The hearing provided an opportunity for the appellant to correct any errors by Dr McG…. and aspects such as the exclusion of the diagnosis of a hiatus hernia and the up to date investigations for swallowing problems were taken up at hearing.  The matter of treatment for chronic fatigue was discussed at hearing, as was the amount of time spent in bed.  It seems evident to me from a reading of the record of the tribunal proceedings that the criticisms of Dr McG…. were fully aired and resolved, contrary to the appellant’s submission.

43.	However, the main purpose of the hearing was not to analyse Dr McG….’s report, but to hear the appellant’s own evidence regarding his disabilities and to consider all the documentary evidence available.  The tribunal questioned the appellant about his limitations in walking and in relation to his requirements for attention in connection with bodily functions.  The tribunal had regard to other material, such as the report of the occupational therapist who assessed the appellant for aids in his home on 5 October 2010, within a month of the last decision on DLA entitlement.  It was on the basis of all of this evidence that the appeal tribunal indicated that it preferred the medical evidence provided by Dr McG…. and rejected the criticism of Dr McG….’s report by the appellant and his representative.

44.	I consider that the appeal tribunal was entitled to take this view of the report of Dr McG…. on the evidence before them.  The tribunal did not fail to address the appellant’s criticisms of the report and did not err in law as alleged in this respect.

Failure to give proper consideration to material facts or provide adequate reasons

45.	The appellant’s third point relates to the amount of time he spends in bed and his inability to prepare a main meal or self-care at this time.  The appellant makes the point that the fact that he spends long periods in bed is evident from the report of Dr McG…. and from a Blue Badge application completed by Dr D……..  The tribunal also records his evidence at hearing to this effect.  Dr B….. reported that “he would spend several hours a day in bed and usually in the morning and can be later in the afternoon or evening”.  In its conclusions the tribunal finds “that whereas the Appellant may well tire easily and that he chooses to spend long periods in bed that he is capable of attending to all his care needs”.

46.	In reaching this finding the tribunal refers to the evidence of an occupational therapist’s report.  This indicated that the appellant’s house had been adapted with rails, toilet frames, hand bars, etc.  He had a bath board.  These items were in use by him for the past six months, which would mean from October 2010.  The tribunal record that the occupational therapist report indicates that with the aids supplied the appellant is independent.  The tribunal’s record of proceedings indicates that it had specific regard to whether the appellant required encouragement, prompting or motivation to attend to his own personal care needs, and found no evidence that that was in fact the situation.

47.	The appellant’s point relates to how fatigue affects his ability to prepare a main cooked meal, and how the tribunal have only considered the periods when he is not in bed and when his energy levels are “more permitting”.  He makes the point that when he is in bed all day due to extreme fatigue and pain, he is not able to prepare a meal.  He relies on the report of Dr B……., consultant at the pain management clinic, and that of Dr E……...

48.	Dr B……. reports that it will be very difficult to make any significant inroads into the appellant’s problems and indicates that he would not benefit from any particular medications.  He expresses disappointment that cognitive behavioural therapy was declined as this might have given the appellant a strategy to manage his condition.  Dr E…….’s letter confirms that the Psychological Therapies Department do not accept referrals for chronic fatigue or other presentations where there is a significant physical health component.

49.	The ability to prepare a cooked main meal involves taking a “broad view of the matter”, as stated by Lord Hoffman in Secretary of State v Moyna [2003] 4 All ER 162.  While the appellant spent long periods in bed, the tribunal was entitled to consider the periods spent out of bed as relevant to the question of ability to prepare a cooked main meal (see Moyna paragraph 18).  It is clear that the tribunal rejected the appellant’s evidence that during those periods he was prevented from cooking for himself by pain and fatigue, or that it would be unsafe for him to cook, or that he would have trouble with fine movements or concentration.  These conclusions involved rejecting the oral evidence of the appellant as being overstated.  On all the evidence before it, which included their observation of the appellant at hearing, the tribunal was entitled to come to this conclusion.

50.	The appellant has submitted that ocular observation of him by the tribunal should have compelled a different outcome, as being at odds with the medical evidence.  An appeal tribunal may make use of ocular observation (see for example R4/99(IB)) but it is not required to do so.  In this case the tribunal accepted that the appellant walked with an unusual gait, the medical member having put this to him in evidence, as good practice may require (see R03/01(IB)(T)).  It is not correct to say, therefore, as the appellant asserts, that the tribunal has made no finding as to his manner of walking.  I see no strength in the appellant’s contention that the ocular observations of the appeal tribunal would have compelled a different outcome to that arrived at.

51.	A further issue referred to by the appellant which warrants particular mention is the pro forma completed by Dr D…….. in support of his application for a Blue Badge.  I do not have a copy of this before me.  I understand such pro forma applications to consist of a series of tick-boxes relating to the GP’s estimate of a patient’s walking ability.  In this instance the GP has ticked a box corresponding to a walking distance of 50 yards, on which basis the appellant was granted a “Blue Badge” for parking in disabled parking spaces.  The tribunal had put to the appellant that there was nothing in his medical notes or in the assessment by the occupational therapist that would substantiate such a reduction in his walking levels.  The tribunal specifically recorded that an “examination of the appellant’s notes and records did not reveal any evidence whatsoever that would corroborate in any way the evidence set [sic] in the Blue Badge application.  In fact all the evidence in the medical reports would seem to substantiate the evidence of Dr McG….”.

52.	Where there is a difference of opinion such as between Dr D……. and Dr McG…., the tribunal has an obligation to reach a conclusion as to which is the most likely to be the correct opinion.  On the basis of all the evidence before them, the tribunal preferred the opinion of Dr McG….., and I consider that it was entitled to do so on the evidence before it.

53.	It follows from this that I do not accept that there is merit in any of the grounds advanced by the appellant in support of his appeal.  Accordingly, I disallow the appeal.

(signed):  O Stockman

Commissioner

1 February 2012