R(DLA) 3/99
Mr. D. J. May QC			                                       CSDLA/856/1997
1.5.98	
	
Evidence - examining medical practitioner – whether evidence of an examining medical practitioner should normally prevail over a claimant’s evidence
The claimant claimed disability living allowance on 29 January 1996.  The claim was disallowed and the disallowance was not revised on review.  The claimant appealed.  At the request of a tribunal, a report was prepared in December 1996 by an examining medical practitioner.  On 13 March 1997, the claimant’s appeal was dismissed by the disability appeal tribunal who accepted the evidence of the examining medical practitioner, stating that he was “an independent examiner”.  The claimant appealed to the Commissioner, arguing that the examining medical practitioner was not independent as he was paid by the Department of Social Security, trained by the Department and open to be influenced by the “gloss” put upon the law by the Department.  It was further argued that the tribunal failed to address the claimant’s evidence of deterioration in the three months since the report.
Held, allowing the appeal, that:
1.	there was no indication in the findings or reasons that the tribunal had addressed the evidence of deterioration given by the claimant, and as they had not indicated whether or not it was accepted and whether, if accepted, it was considered to be immaterial to their decision, their decision must be set aside (paragraph 6);  
2.	neither CDLA/692/1994 nor CM/361/1992 nor paragraph 7 of CDLA/148/1994 could be considered authority for the proposition that evidence from an examining medical practitioner must of necessity prevail over that led by the claimant (paragraph 11);
3.	such evidence might prevail in the majority of cases once the tribunal had carried out the weighing exercise that they were required to carry out but that did not mean that as a matter of course the examining medical practitioner’s evidence must prevail because it would fly in the face of the obligation of a tribunal to consider the whole evidence in a case if they accepted one body of evidence on the basis that it must normally prevail over other evidence in the case (paragraph 11);
4.	in this case, the tribunal had not failed to weigh up the evidence as they were required to do because the examining medical practitioner had in effect indicated why there was a conflict between his assessment and the claimant’s, the tribunal were right to accept that he was an independent examiner and, in those circumstances, they were not required to give any further explanation for accepting his evidence (paragraph 12).
The Commissioner referred the case to a freshly constituted tribunal.

DECISION OF THE SOCIAL SECURITY COMMISSIONER
1.	My decision is that the decision of the disability appeal tribunal given at Glasgow on 13 March 1997 is erroneous upon a point of law. I set it aside. I remit the case to a freshly constituted disability appeal tribunal for a re‑hearing.
2.	This case came before me at an oral hearing on 28 April 1998. The claimant was represented by Mr. Orr, a welfare rights officer of the City of Glasgow Council. The adjudication officer was represented by Mr. Armstrong, Advocate instructed by Miss Aitken of the Office of the Solicitor to the Secretary of State for Scotland.
3.	The claimant made a claim for disability living allowance on 29 January 1996. An adverse decision was made in respect of the claim. Thereafter another adjudication officer reviewed that decision but did not revise it so as to award benefit.
4.	The claimant appealed to a disability appeal tribunal. A tribunal was held on 13 September 1996 but was adjourned pending a report from the examining medical practitioner. That report was obtained. The claimant’s appeal was heard by a disability appeal tribunal on 13 March 1997. Her appeal was not successful.
5.	The claimant has appealed to the Commissioner. Her appeal was not supported by an adjudication officer as can be seen from a submission to the Commissioner recorded at pages 162 and 163 of the bundle.
6.	In the event of the hearing before me Mr. Armstrong conceded that the tribunal had erred in law in the manner identified in this paragraph. The examining medical practitioner’s report was dated December 1996. The hearing was heard by the disability appeal tribunal on 13 March 1997. It is noted in the chairman’s note of evidence that the claimant had indicated in response to questioning by one of the members of the tribunal that her condition had deteriorated since the examining medical practitioner’s report. She had indicated that she could not put on her trousers. She also indicated that her walking was worse. The tribunal gave a very short decision in which they stated in finding of fact 4, that the opinion of the examining medical practitioner is accepted. In their reasons they said: 
“The tribunal accept the evidence of the EMP who is an independent examiner.  In these circumstances the appellant does not meet the criteria for either Mobility or Care Component at any rate.”
There is no indication in the findings or the reasons that the tribunal addressed the evidence of deterioration given by the claimant. It is not indicated whether or not it was accepted or if it was accepted whether they considered it to be immaterial to the decision which required to be reached by them. In these circumstances I consider that the second ground of appeal advanced by Mr. Orr in relation to this matter is well founded and properly supported by Mr. Armstrong. In these circumstances the tribunal decision is set aside.
7.	Mr. Orr’s first ground of appeal related to the acceptance by the tribunal of the evidence of the examining medical practitioner and their explanation for this that he is an independent examiner.
8.	It is apparent from the chairman’s note of evidence that the case of CDLA/692/1994 was placed before the tribunal.  In that case Mr. Commissioner Rice said:-
“5. On the evidence of the EMP, there could be no question of the claimant’s being virtually unable to walk. I am aware, of course, that the claimant contends that her walking ability is far less than that suggested by the EMP ‘Overall, it is the sheer physical discomfort which limits my walking ability to around 30 yards’. However, where there is a conflict of evidence between the claimant on the one hand and the EMP, the latter will normally prevail. For the EMP is wholly disinterested, and has a medical expertise to determine properly what the claimant’s walking ability amounts to. The tribunal were right to follow the opinion of the EMP rather than the claimant’s own version of her condition. The claimant’s own GP really took the matter no further. For, as the tribunal rightly stated, although he spoke he failed to particularise further. Moreover, a claimant’s GP is not normally as disinterested as an EMP. He is likely to be subject to pressure from the claimant, in a way that an EMP never could be.”
9.	It was Mr. Orr’s submission that on the face of the tribunal decision there was no indication that the tribunal weighed the evidence presented to them. They simply indicated that they accepted what the examining medical practitioner said on the basis that he was independent. Mr. Orr said that he did not know whether the examining medical practitioner was in fact independent. He said that in the case quoted above Mr. Commissioner Rice had indicated that the examining medical practitioner was disinterested. However he said that the examining medical practitioner may be paid by the Department of Social Security, was trained by the Department and may be influenced by what he described as the “gloss” put upon the law by the Department. It was his submission that if the tribunal required to accept what was said by the examining medical practitioner that would subvert the whole process of appeal in that the claimant would be wasting her time attending. With reference to paragraph 5 of the decision of Mr. Commissioner Rice, Mr. Orr said that it was said there that in a situation where there is conflict of evidence between the claimant on the one hand and the examining medical practitioner on the other the latter will normally prevail. It was not said by Mr. Commissioner Rice in respect of the circumstances in which it would not prevail. He also postulated a situation where the tribunal may in fact accept the evidence given by a claimant orally at a hearing and he posed the rhetorical question that if that were the case standing what was said by Mr. Commissioner Rice in CDLA/692/1994 were the tribunal bound to accept the evidence of the examining medical practitioner. It was his submission that if the examining medical practitioner’s evidence normally prevailed and there was no way around that the appeal process is meaningless.
10.	Mr. Armstrong in response said that if he had not supported the appeal on the basis he did he would not have done so because it was his position that but for the failure of the tribunal to deal with the question of deterioration adequately their decision although sparse in relation to findings and reasons was adequate. He refuted the suggestion that examining medical practitioners were subject to direction by the Department of Social Security. Although he conceded that they were paid and trained by that Department it was his position that what was sought by the Department from examining medical practitioners were objective opinions in relation to claimant’s conditions. It was his position that not only was the examining medical practitioner disinterested but also the Department. It was his submission that the views of examining medical practitioners’ would not automatically prevail in hearings before tribunals. For example if it was asserted by a claimant that the examining medical practitioner had not listened to her this was something to which a tribunal would have to have regard. However he indicated that if all other things were equal it is not surprising that a tribunal might prefer the evidence of an examining medical practitioner to that of the claimant. In that regard he made reference to paragraph 5 of CDLA/692/1994. He also made reference to what was said by Mr. Commissioner Rice in CM/361/1992 where in paragraph 4 he said:-
“Moreover they must assume, unless there is something to indicate to the contrary, that the medical authorities have taken into account all relevant medical considerations, and have given due weight to all the contentions of the claimant as to his or her medical condition. Further, as the tribunal cannot themselves test the claimant’s walking capacity, normally they are in no position to give proper weight to further evidence presented to them by the claimant. Such evidence should have been produced to the medical authorities. If, however, they entertain the opinion that the new evidence might, had it been presented to the medical authorities at the relevant time, have influenced their decision, they should adjourn their determination, and seek a further report from one or more of the medical authorities. If, in the alternative, they consider that such evidence would, on the balance of probabilities, have had no practical bearing on the issue, then they can proceed to a final determination.”
11.	For myself it seems to me that in any case what a tribunal is required to do when assessing the evidence in an appeal before them, including evidence in the form of an examining medical practitioner’s report, is to determine what evidence they accept and what evidence they reject so as to form the factual foundation for their decision. I do not consider that CDLA/692/1994 nor CM/361/1992 or indeed paragraph 7 of CDLA/148/1994 to which I have been referred is authority for the proposition that evidence from an examining medical practitioner must of necessity prevail over that led by the claimant. It may well be that in a majority of cases this will be so for the reasons referred to by Mr. Commissioner Rice in the various decisions of his to which I have been referred once the tribunal have carried out the weighing exercise that they are required to carry out. However that is not the same thing as a proposition that as a matter of course the examining medical practitioner’s evidence must prevail. I would not accept such a proposition and that was not Mr. Armstrong’s submission either. The reason for that is that it would fly in the face of the obligation of a tribunal to consider the whole evidence in a case and in these circumstances they cannot accept one body of evidence upon a basis that it must normally prevail over other evidence in the case.
12.	I do not consider that the tribunal in this case have failed to weigh up the evidence in the manner in which they were bound to do. It is apparent to me from perusing the chairman’s note of evidence and the content of the examining medical practitioner’s report that there was not, apart from the reference to deterioration, a marked difference between both what the claimant said to the tribunal and what she said to the examining medical practitioner. The examining medical practitioner indicated in his report that he did not accept the assessment of the claimant’s condition as given to him by her. In answer to the question to what extent is the person’s disability as described throughout this report due to physical factors he said:-
“About 80%
and 20% could be functional.
Since difficult to see reason for such a poor show in this somewhat anxious person.”
In relation to the opportunity to make a general statement about the claimant’s condition he said:-
“Mobility ‑ findings would suggest walking should be better than this 30 yards in 10/15 mins.
Again findings do not support claim of slow dressing etc
Again difficult to see reason for frequent toilet attendance especially as she has not taken diuretics
-	again latter would be indicated for breathlessness too ‑ if genuine 
-	they were stopped
Also statement at times inconsistent”
It is thus clear that he himself formed a view in relation to the reliability of the history given to him by the claimant. It is the basis upon which the examining medical practitioner in effect indicates why there is a conflict between his assessment and the claimant. It was open to the tribunal to be persuaded by what was said by the examining medical practitioner or not. In the event in this case the tribunal were so persuaded and they made that clear in their findings and reasons. The conclusion they reached is perhaps not surprising. I consider that they were right to accept the examining medical practitioner as an independent examiner and I fully accept what was said by Mr. Armstrong about that. In these circumstances and from that standpoint it is my view that the tribunal did not need to say more by way of explanation than that. Accordingly I accept Mr. Armstrong’s submission that the tribunal did not err in law in the manner suggested by Mr. Orr in his principal ground of appeal.
13.	The case goes before a freshly constituted tribunal which in carrying out its task should have regard to what I have said in this decision. I note what is said in the response to the adjudication officer’s submission by Mr. Orr. In page 166 he makes reference to the Commissioner’s decision in R(M)l/91 in respect of the nature of the circumstances the context of the test for the higher rate of the mobility component. That issue arises in the appeal. I draw their attention to what I said in paragraph 17 of CSDLA/767/1997 and I direct them to follow that.
14.	The appeal succeeds.

Date: 1 May 1998	(signed) Mr. D. J. May QC 
                                                                                                                 Commissioner