DGR/SH/ZA/17

				Commissioner’s File:       CIB/17257/1996
SOCIAL SECURITY ADMINISTRATION ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT 1992

APPEAL FROM DECISION OF SOCIAL SECURITY APPEAL TRIBUNAL ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Name:

Social Security Appeal Tribunal:

Case No,

1.	For the reasons set out below, the decision of the social security appeal tribunal given on 26 September 1996 is erroneous in point of law, and accordingly I set it aside. direct that the appeal be reheard by a differently constituted tribunal, who will have regard to the matters mentioned below.

2.	This is an appeal by the claimant, brought with the leave of a Commissioner, against the decision of the social security appeal tribunal of 26 September 1996.

3.	The question for determination by the tribunal was whether the claimant was able to satisfy the All Work Test from and including 7 February 1996.  In the event, the tribunal, upholding the decision of the adjudication officer, decided that the claimant was not able to satisfy that test, with the result that she was capable of work from and including that date.  She was only able to score 10 points under the physical descriptors, and in order to satisfy the test she had to score 15 points.

4.	The adjudication officer now concerned supports the appeal and does so on a number of grounds. one such ground is expressed as follows:-

"11.	There was conflicting evidence before the tribunal with regard to the claimant' s health problems.  For example, in her questionnaire (page 4k) , the claimant stated that she was unable to use a pen or pencil.  The EMO found that the claimant did not have problems with using a pen or pencil (page 5L).

. . . . 

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	14.	I submit that given the conflicting evidence before them, it was incumbent upon the tribunal to give a clear explanation as to why they have rejected the evidence of the claimant.  I submit that the tribunal have failed to do this and this failure constitutes an error in law."

I reject that submission.  The evidence of an EMO is both disinterested and informed, whereas that of the claimant is neither.  The tribunal will normally follow the view of the EMO unless there are grounds for supposing that the usual practice should in a particular instance not be followed.  There was nothing to suggest in the present case that the normal practice should be departed from.  This is really self-evident and obvious, and it was unnecessary for the tribunal to spell it out.

5.	The second ground on which the adjudication officer now concerned relies in support of the appeal is directed to criticism of the part taken by the medical assessor, Dr. Mobarak.  The adjudication officer now concerned says as follows:-

"15.	In the reasons for their decision, the tribunal concluded that:-

" . . . Dr. Mobarak, whilst appreciating the problems in question felt that from a medical point of view, there were no further grounds for bringing [the claimant] into the scope of the relevant activities and descriptors ... "

16.	I submit that in making such remarks to the tribunal, the Medical Assessor exceeded his assigned role as medical adviser to the tribunal, as outlined in section 56 of the Social Security Administration Act 1992.  I further submit that in allowing the Medical Assessor to make such remarks, the tribunal erred in law.  I draw on R(I) 14/51 for support."

I also reject that submission.

In R(I) 14/51 the part that a medical assessor is to take is considered at some length.  In the course of that decision reference was made to Lord Dunedin's statement in The Australia [1927] A.C. 145, at page 150, that:-

"While assessors may be used to the full for information it is a pity, if it can be helped, to put a question to them in such a shape that it is tantamount to asking them whether they would find for the plaintiff or for the defendant."

The tribunal said will reference to that statement as follows:

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	"It is true that the sole function of assessors is to give the tribunal information and advice on the medical questions involved in the case including the effect and value of any medical evidence submitted by the claimant or the insurance officer.  The assessor must not be regarded as a witness, for he cannot be cross-examined by the claimant or the local insurance officer (see per Viscount Simon, L.C. in Richardson v. Redpath Brown and Co. , Ltd. , 36 B. W. C. C. 259 at page 265) . He is not a member of the tribunal and has no judicial powers or duties; the tribunal alone must decide all the issues in the case and must not accept the advice of its assessor on any medical matter unless they are satisfied that having regard to all the evidence of the case the advice is correct.  It follows that it is preferable not to invite an assessor to give a direct opinion upon a crucial issue in the case, but Lord Dunedin's statement implies that this may sometimes be necessary; if this course is taken and the tribunal observe the rule that they must not accept the assessor's opinion unless they are satisfied that it is sound their procedure could not, in my opinion be said to be incorrect.....

However, I think it will only be in exceptional circumstances that it will be necessary to take this course and that usually it will be found possible to elicit from the assessor the medical data from which the crucial inference can be drawn by the tribunal without inviting the assessor himself to draw the inference."

6.	Now, in the present case, what exactly did the medical assessor do?  There was evidence before the tribunal that, over and above the claimant's usual condition, she suffered from certain other complaints "including operation for inguinal hernia, migraine, fibroid and fluid retention".  Dr. Mobarak advised in connection with these other complaints that "from a medical point of view, there were no further grounds for bringing [the claimant] into the scope of the relevant activities and descriptors".  In other words, the medical assessor was advising the tribunal that these further complaints did not give rise, in his medical judgment, to the possibility that there were descriptors to be investigated other than those already taken into account, with a view to a possible award of further points.  This would seem to me to be exactly the kind of thing that the assessor was required to advise on. At the end of the day, the tribunal had to determine how many points the claimant was able to score under the relevant descriptors, in reliance on all the evidence before them "including Medical Officer's report, questionnaire, GP’s certificates, letters of appeal and Dr.  Mobarak's advice [my emphasis]".  The tribunal could see no proper grounds upon which to award further points over and above the 10 points already allowed by the adjudication officer.

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7.	Accordingly, I see no respect in which it could be said that the medical assessor had exceeded his proper function, and in allowing him to express the view he did, the tribunal did not err in point of law.  This would seem to me an excellent example of a medical assessor carrying out the duties expected of him.  Moreover the tribunal specifically set out the general purport of his advice to them.  They reserved to themselves the task of determining the total number of points the claimant scored.  Accordingly, I see no force in the submission of the adjudication officer now concerned.

8.	However, the adjudication officer now concerned is on stronger ground when he makes the following criticism:-

"10.  I submit that given the evidence before them - which was that the claimant underwent an operation on her left  hernia on 28 March 1996 - it was incumbent upon the tribunal to consider whether regulation 27(d) of the Social Security (Incapacity for Work) (General) Regulations 1995 applied.  I submit that the tribunal failed to do this and this failure constitutes an error in law."

I agree with that criticism, and on that ground alone I must set aside the tribunal's decision as being erroneous in point of law.

9.	Accordingly I direct that the appeal be reheard by a differently constituted tribunal, who will, inter alia, consider the effect of regulation 27(d).

(Signed)	D G Rice 
	Commissioner

(Date)     	1 April 1998

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