PLH                                                                                Commissioner's File:  CS 2927/03

	SOCIAL SECURITY ACTS 1992- 1998

APPEAL FROM DECISION OF APPEAL TRIBUNAL
ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Claim for:  		Severe Disablement Allowance
Appeal Tribunal: 	Colwyn Bay 
Tribunal Case Ref:  	U/03/190/2001/00236
Tribunal date:		22 February 2002
Reasons issued:		28 March 2002

     1.     	This appeal by the claimant is dismissed, as despite all the arguments she puts forward which I have carefully considered I have not been satisfied that any material error of law has been demonstrated in the decision of the Colwyn Bay appeal tribunal sitting on 22 January 2002 such as to warrant my setting that decision aside.  I must therefore dismiss this appeal as I have no jurisdiction to interfere with a tribunal decision, however dissatisfied the claimant may be with it, unless an error of law has been identified to bring it within section 14 Social Security Act 1998.
     2.     	The claimant is a lady now aged 51 who has suffered from painful joints in various parts of her body and from Raynaud's disease for a number of years.  She has made various other claims for benefit and has had at least one other tribunal appeal, but this case is concerned only with the claim for severe disablement allowance she made on 11 September 2000, asking for it from 11 June 2000 onwards which would have been the earliest possible date on that claim.  In the claim form she said she had been disabled from 1998 with “generalised osteoarthritis” and was already getting the higher rate mobility component and the low rate care component of disability living allowance.  In order to establish an entitlement to severe disablement allowance under section 68 Social Security Contributions and Benefits Act 1992 as well, it was necessary for her to show in particular that she suffered from loss of physical or mental faculty such that the extent of her resulting disablement assessed in accordance with the Act amounted to not less than 80%.  
     3.     	That, as the name of the benefit implies, is a very severe degree of disablement; and the entire issue in this case has throughout been whether the disabling effects of her particular condition are or are not so bad as to get over the prescribed 80% threshold.  The appeal to the tribunal was against a departmental decision given on behalf of the Secretary of State on 12 December 2000 that she did not qualify for severe disablement allowance because the degree of her disablement did not equal or exceed 80%.  That was based on a departmental medical assessment carried out on 7 December 2000 which put her aggregate degree of disablement at 67%.  However it is important to bear in mind that the precise percentages arrived at in the medical evidence are not the crucial thing so long as they remain below the threshold.  All that matters in terms of the actual decision on the claim to benefit is whether the 80% level of severe disablement is established by the medical and other evidence in the particular claimant’s case, or not.  
     4.     	The departmental medical assessment of 7 December 2000 set out in detail the basis for the 67% assessment reached, referring in particular to arthritis of the hips (where the medical examination had demonstrated “pain with hip flexion beyond 100 degrees”) which with some discomfort in her knees gave rise to a 35% assessment for pain and stiffness with walking and standing, together with arthritis of her back causing pain with bending and prolonged standing (a further 10%).  A further 8% for Raynaud’s phenomenon in her hands and feet and other problems with her neck and shoulders brought the total up to 67%, the doctor commenting that “the arthritic condition and Raynaud’s are chronic”.  
     5.     	The claimant was dissatisfied with that, and appealed against the consequent rejection of her claim, saying that she did not think the matter had been given sufficient consideration and she had been examined on an usually good day so the report did not give an accurate picture.  She submitted in support of her appeal a medical report dated 9 February 2001 from a consultant orthopaedic surgeon, Mr McSweeney, on the effects of a road traffic accident she had had the misfortune to suffer on 17 May 2000, saying his findings “may well indicate that I have been under-assessed by your departmental doctor”:  pages 33 to 38.  
     6.     	This orthopaedic report while confirming that the claimant had a history of “generalised arthritic type symptoms” was of course directed to assessing the effects of the accident (which Mr McSweeney did not frankly find to be very great, saying there was no direct injury but an exacerbation of symptoms from her existing conditions for a matter of months only).  Quite naturally it did not purport or attempt to carry out or record any general assessment of the level of her disablement in percentage terms, such as would have been needed to give a proper comparison with the departmental assessment for the purposes of section 68.  It did however record that on examination Mr McSweeney demonstrated some reduction of the claimant’s movements of her neck (causing pain) and tenderness and reduced movements of her shoulders; there was also tenderness in her lower back but a reasonable range of movements, and he also found that “internal rotation of the hips was somewhat reduced and flexion above 90 degrees caused pain” with some discomfort on straight leg raising.  
     7.     	No other medical evidence was submitted in support of the appeal or the SDA claim; though at the same time the claimant was pursuing a separate appeal to try and get the middle rate component of DLA, and maintaining vehemently in correspondence to the tribunal (pages 42 to 43) that she had not been lying in her claims and it was only the obdurate refusal of the departmental decisionmakers to accept the medical evidence she had already provided that prevented these being successful.  That letter dated 6 June 2001 was obviously written when the claimant was in a somewhat emotional state.  I do not think anyone able to take a more dispassionate view could have really thought that so far as the SDA claim was concerned Mr McSweeney’s report, which was not directed to the issues in the appeal at all and gave no percentage assessment, could have possibly amounted to conclusive evidence in her favour as the letter suggested.
     8.     	When that appeal came before the tribunal at Colwyn Bay for the first time on 26 July 2001 she was duly examined by the medical members of the tribunal, but in the light of their findings and the lack of anything like conclusive medical evidence in her favour the tribunal very properly and reasonably adjourned the case to give an opportunity for further medical evidence about the nature of the claimant’s condition and disablement to be produced.  They said in particular that they wanted to see her general practitioner’s medical notes, particularly as to any investigations that might have been done, and extract hospital records and notes.  In particular they wished to know whether an “ESR test” had been carried out, which is a simple blood test which can give valuable information about the presence of rheumatic diseases and polyarthritic conditions in particular.  
     9.     	The reason for the tribunal considering that these further investigations into the evidence were merited are it seems to me sufficiently demonstrated by the chairman’s contemporaneous record of the proceedings at pages 49 to 51, which concludes with a note querying the presence of “generalised polyarthritis”, and recording that there was no evidence on the face of it of osteoarthritis as the appellant was claiming.  The record of the clinical findings of the medical members on examination showed that the claimant’s neck and shoulder movements had been painful and limited, her lumbar spine was tender and painful with limited movements and she had pain in both hips, particularly the right one which was “very painful with only 30 degrees of flexion and very limited rotation” though “examination was made difficult by hip immobility”.  Nevertheless that tribunal, of whose clinical examination and findings the claimant makes no complaint, made it quite clear by the course they took of adjourning to enable further evidence to be produced, that they were not satisfied that the existing evidence before them combined with their own findings on clinical examination demonstrated a sufficient degree of disablement such as to justify allowing the appeal and awarding the claimant the benefit on the basis she asked.  
     10.     	The course they took in those circumstances was in my judgment a wholly justified and reasonable one, and the claimant’s reaction to it, which was to write another letter of complaint dated 26 July 2001 alleging that it amounted to a “gross intrusion of my privacy” because the tribunal had no business asking for further evidence from her medical history but should have accepted what was said in the report of Mr McSweeney as conclusive to allow the appeal in her favour, almost bizarrely self-defeating and irrational.  No reasonable person could have read the tribunal’s decision to adjourn and ask for further evidence as doubting the claimant’s veracity or that of Mr McSweeney, or as a “refusal to accept totally impartial evidence” that was sufficient to decide the appeal in her favour as it stood, all of which she asserted in her letter.  All they had done was give the opportunity for the case to be gone into more thoroughly so as to preserve the possibility of the appeal succeeding, instead of the dismissal that would have been inevitable on the material before them had they decided it on the spot.  That the claimant was apparently too upset by her various difficulties to appreciate this is of course sad and unfortunate, but it does not alter the fact.  
     11.     	The claimant continued to assert that she had been improperly treated by the tribunal, saying for example in a letter dated 16 August 2001 at page 51g that “the tribunal has acted illegally by ignoring Mr McSweeney’s Court Report and its own clinical findings” and that a decision could and should have been made on her level of disability at the hearing on 26 July 2001.  She refused to permit access to any of her medical records, and by way of further medical evidence submitted only a short note from her own GP dated 23 August 2001 recording that on examination on 10 August 2001 for a painful hip she had a tender area over the right greater trochanter with limited flexion and abduction on which he had diagnosed an inflammation of the tendon and given her an injection of painkiller.  
     12.     	That was the state of the evidence when on 22 January 2002 the adjourned appeal came before a differently constituted tribunal also sitting at Colwyn Bay, the tribunal against whose decision this appeal is brought.  The claimant was again examined by the two medical members who included an orthopaedic specialist.  They recorded some mild restriction in her cervical spine but a normal range of movement in her shoulders with no apparent pain; she had tenderness and slight restriction in her lumbar spine and in her hips all hip movement was resisted, though flexion of 90 degrees bilaterally was demonstrated “with persuasion”.  They recorded specifically “NB: No evidence on examination of generalised osteoarthritis”.  The claimant gave evidence and answered questions in detail about her condition, as recorded in the chairman’s contemporaneous note at pages 55 to 58.  
     13.     	The tribunal’s conclusion, also reached and recorded contemporaneously, was to disallow the appeal, as their own assessment of the degree of her disablement was at a considerably lower percentage level even than that underlying the Secretary of State’s decision under appeal:  it totalled only 35%, incorporating in particular sharply reduced assessments of 20% for the difficulty with walking and standing from arthritis of the hips, and 5% for what they found to be only a minimal restriction of bending from lumbar spondylosis:  see page 53.  As noted above however, the percentages themselves did not affect the substance of the decision, since unless the claimant had demonstrated on evidence a level of disablement of 80% or more, the original decision of the Secretary of State had to stand and her appeal was bound to fail.
     14.     	The claimant had the basis of this decision explained to her in some detail by the chairman immediately after it had been reached; and it is not in dispute that she made no complaint at that stage about the basis on which it had been reached, or about the way she had been treated by the tribunal themselves either in the course of the hearing or during the clinical examination by the medical members.  
     15.     	However the following day she telephoned a tribunal official to complain that the examination had been carried out in a manner that humiliated her because no gown, “modesty blanket” or screen had been provided in the medical examination room.  Moreover she said she now had bruises on the back of her legs from the orthopaedic examination itself.  This she followed up with a further lengthy letter of complaint dated 25 January 2002 saying 
“I have several very serious complaints to make because not only was I humiliated and robbed of dignity, I was occasioned actual bodily harm by the examining doctors”, 
saying also that she had contacted the North Wales police about her complaints. These  were there had been no female nurse or gown in the examination room and that after the examination she had experienced severe headache, pins and needles and pain; and bruising had appeared on her knees, shoulder and hips.  Consequently she wished the matter to be dealt with at the highest level.  
     16.     	In subsequent correspondence, she applied on these or similar grounds for the decision to be set aside.  That application was declined by the tribunal chairman in a decision dated 23 February 2002 at page 67, against which there is and can be no appeal to me.  It is to be noted however that the chairman there recorded that the claimant had been an articulate participant in the tribunal proceedings, had every opportunity to make any comment or submission she considered appropriate and had consented to the medical examination in the knowledge that no “chaperone” would be present.  
     17.     	The claimant then sought to pursue an appeal, and was provided for this purpose with a detailed statement of the tribunal’s reasons for the decision already reached and intimated to her on 22 January 2002.  Those reasons were issued to the parties on 28 March 2002, at pages 68 to 70.  They explain that the appeal procedure on 22 January 2002 was by way of a complete rehearing:  the tribunal’s assessment from the record of what had happened at the previous tribunal on 26 July 2001 was that the previous tribunal had been “perplexed by the presentation of disablement” as there was little objective evidence to support the claimed diagnosis of widespread generalised osteoarthritis.  No further medical records had been produced in view of the claimant’s refusal to allow this but she had informed them that an ESR test had been carried out, from the results of which they deduced that polyarthritis had been excluded.  They had taken into account the three clinical examination reports available to them:  first that of the examining doctor on 7 December 2000 with the 67% assessment, second the report of Mr McSweeney on the effects of the road traffic accident, and third the record of findings of the previous tribunal on 26 July 2001.  They commented that there was considerable unanimity between the previous medical findings and their own findings on clinical examination, and said that this strengthened their conclusions.  
     18.     	These they expressed as follows:	
“11. There was little clinical evidence to support the diagnosis of generalised osteoarthritis.
12.	Our findings (as do those of all three reports in the bundle) indicate mild cervical and lumbar spondylosis, mild osteoarthritis of the hips, knees, first metatarsal joints of both feet and mild osteoarthritis in the small joints of the hands. 
13.	There was no sign of swelling or stiffness.  There was no sign of loss of function, for example, evidenced by muscle wasting.  Movements were only marginally restricted and then because of pain as opposed to pain and stiffness.
14.	The mild signs of osteoarthritis in the hands are insignificant and not sufficient to impact on functional use.  The same can be said in respect of the signs in the knees.
15.	With regard to Raynaud’s Syndrome, this was not evident on examination in that the pulses were good.  We conclude that although the Appellant may, from time to time, experience symptoms of Raynaud’s, it is neither severe or debilitating nor impacting upon her functional use of her hands. 
16.	Having considered the Appellant’s evidence, both written and oral, the Tribunal found it surprising that someone who claimed to be so disabled and worsening was reluctant to pursue the possibility of specialist investigation and treatment.  There were also conflicts between the claimed disability and function.  By way of example, the Appellant claimed to have severely restricted use of her hands because of pain and swelling yet, since June 1999, she has chosen to use elbow crutches with hand grips as a walking aid.
17.	We felt unable to rely upon the strict accuracy of the Appellant’s evidence which, we concluded, in the light of the clinical evidence was exaggerated, both in relation to the extent of disability and its functional effects.”
On that basis they recorded their own assessment of the claimant’s degree of disablement at a total of 35%, and in the final sentence on page 70 set out their actual decision: that as the total disablement was less than 80%, the Appellant was not entitled to the severe disablement allowance.  
     19.     	Against that decision the claimant appeals, with the leave of the Commissioner granted on 15 May 2003 after full submissions setting out the claimant’s grounds of appeal and the Secretary of State’s grounds of opposition to it had already been made on the application for leave.  The Commissioner who granted leave directed that the submissions already made should stand as submissions on the appeal and that no further submissions be made; no objection has been received to that direction and I am satisfied that as all possible grounds of appeal have already been fully ventilated in the written submissions and no application has been made for an oral hearing, the right course is for me now to proceed to determine the appeal.  
     20.     	The claimant’s grounds for appeal are set out in the eleven-paragraph document headed “Reason for Appeal” annexed to her notice of appeal at pages 83 to 84, together with further correspondence and documents relating to her complaints about the way the tribunal proceedings and in particular the medical examination of her on 22 January 2002 were conducted, at pages 93 to 114, and her written observations in reply dated 23 April 2003 at pages 118 to 122.  I have taken all of this material into account, in conjunction with the remaining numbered papers in the appeal file showing the previous history of the case, and the Secretary of State’s written observations in answer to the appeal by Mr K McClure dated 17 March 2003 at pages 116 to 117.  
     21.     	The claimant summarises her case on the appeal at page 121 by saying “I submit that the tribunal proceedings were flawed, unfair and unjust and that incorrect fact was used to make determination and therefore, error in law has occurred.”  Her first main ground for saying his is the allegation that the clinical examination of her was carried out by the medical members of the tribunal on 22 January 2002 in such a manner as to render the entire decision defective and unsafe.  She says first that there was a “lack of dignity” in the facilities provided in the examination room itself in that no hospital gown, blanket or other garment was provided for her after she was asked to take off her outer clothing for the examination, which she did.  Secondly she says that excessive force was used in the course of the examination itself; she was caused pain, and her protestations about this were ignored, and she afterwards noticed that she was suffering bruising in some areas which she attributed to the manipulation carried out in the course of the examination.  This she contends amounted to an infringement of her legal and human rights:  in particular Article 3 of the Convention on Fundamental Rights and Freedoms (“Prohibition of torture: No one shall be subjected to torture or to inhuman or degrading treatment or punishment”); and further or alternatively Article 6 (“Right to a fair trial:  In the determination of his civil rights and obligations … everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”). 
     22.     	I have been unable to see that these contentions establish a ground in law for invalidating the actual decision of the tribunal, which was that as the claimant had not established an 80% degree of disablement, she did not meet the conditions for entitlement to severe disablement allowance.  It appears to be admitted by the tribunal administration that there was a “lapse” in that the claimant was not provided with a gown to put on for the examination, though equally there seems to be no doubt that it all took place in a private examination room, off the tribunal room in which the (female) tribunal chairman was still sitting, so there is no question of the claimant having been exposed to any public embarrassment.  The fact of not having been given a gown for the medical examination by the two doctors on the tribunal was a matter for which the tribunal administration has expressed its regret, but cannot in my judgment have any bearing on the validity of the medical conclusions reached at the examination itself, or amount even arguably to an error of law on the part of the tribunal such as to render their actual conclusion defective.  
     23.     	The allegations of excessive force used in the course of the examination are denied, and the suggestion that she was “crying out in pain” and her protestations ignored is in particular not supported by the tribunal chairman, who records in her note dated 7 March 2002 at page 100 that during the examination she had herself remained seated at the tribunal table:  the dividing wall between the tribunal room and the examination room is thin and sounds are audible, and she had heard nothing which was indicative of pain, discomfort or distress.  Furthermore, when they reconvened after the examination there was nothing in the appellant’s demeanour to suggest concern, and she made no complaint about the conduct of the examination at the time; a point also confirmed by the tribunal clerk’s note at page 90.  It is not necessary for me to determine as a matter fact whether the force used by the doctors was excessive, though I would have to say in view of the chairman’s comments that the claimant’s complaints are very far from proved.  I can find no reason to infer that an experienced legally qualified chairman must have been drawn in to lying to protect a biased tribunal as in the more extreme part of her submissions the claimant appears to suggest; and the lack of any corroboration of the alleged “clearly audible cries of pain”, and the claimant’s apparently unconcerned demeanour at the time after the examination was concluded, must be powerful arguments against the credibility of the serious allegations she afterwards made.  
     24.     	A thorough orthopaedic examination does of course of its very nature require energetic movements of the limbs and joints concerned, to establish the true extent of any actual disablement as distinct from conscious or unconscious resistance to movement on the part of the person concerned; and all orthopaedic reports, Mr McSweeney’s being no exception, have to assess and record the point at which pain begins to be experienced, which necessarily involves this having to be demonstrated by physical manipulation in the course of the examination itself.  Manipulation techniques and the amount of pressure applied no doubt differ among doctors, but even if it was true (and I am certainly not so finding, on the material before me) that a more than usually robust and questioning technique was adopted in this particular instance in view of the doubts occasioned by the previous tribunal’s findings and the lack of further medical evidence, there is still no ground demonstrated for the actual results of the examination and questioning carried out at the tribunal having been other than a genuine professional assessment in answer to the question the tribunal was required to decide, namely whether the true level of the claimant’s disablement reached the 80% threshold to qualify her for the allowance.  
     25.     	That a searching attitude should be adopted by tribunal doctors to claims of “severe disablement” when the existing medical evidence does not support this and there is a failure to provide further medical evidence that may do so, is not in my judgment even arguably an indication of “bias” against the claimant:  it is simply the tribunal doing the job they are required to do under the legislation before an entitlement to benefit can be accepted.  I find no arguable ground for saying that this was a case of “torture” or inhuman or degrading treatment within the terms of Article 3 of the Convention.  Nor in my judgment do the complaints about what happened at the medical examination amount to any case for saying that the claimant’s right to a fair hearing of her appeal under Article 6 was in any way infringed.  The contemporaneous notes taken by the chairman at the hearing itself, and those taken by the previous chairman at the earlier hearing on 26 July 2001 (pages 54 to 58, 47 to 51 respectively), show clearly that this claimant had, and availed herself of, a full opportunity on two separate occasions of putting forward any relevant matter and medical or other evidence she wished to support her claim, and her own numerous letters and other documents throughout the file amply confirm the picture recorded in the ruling at page 67  on the setting-aside application of an articulate participant in the proceedings, well able to make her views known and not slow to take the opportunity.  
     26.     	I therefore reject the first main ground put forward by the claimant, that the way in which the examination and tribunal proceedings were conducted and the attitude of the doctors rendered the tribunal’s conclusion erroneous in law. I can similarly find no ground to accept the further contentions based on an alleged breach of natural justice, and/or the right under Article 6 to a fair hearing in what is suggested to be a lack of integrity and impartiality on the part of the tribunal chairman.  This is said to lie in the fact that she also dealt with the setting-aside application on 23 February 2002, and was thus obviously aware of the grounds for that application, including the detailed and serious complaints made by the claimant about the medical examination, before she completed the statement of reasons for the original decision, not issued to the parties until 28 March 2002, the month after the set-aside application had been dealt with.  
     27.     	I do not see how this can demonstrate any lack of fairness or impartiality on the part of the chairman, still less any arguable ground to invalidate the substantive decision itself.  That was of course arrived at by the full tribunal not on 28 March 2002 but on the day of the hearing, immediately after the medical examination, and as noted above was thereupon explained to the claimant in the tribunal room, without any of the complaints relied on as colouring the chairman’s attitude having at that stage been voiced at all.  The actual result of the case and the tribunal’s findings, recorded contemporaneously as they were, could not conceivably have been influenced by the later complaints or the fact that the chairman had become aware of them before the statement of reasons had been completed.  Nor as I have already indicated is there any ground for the more generalised allegations of “bias” in not having accepted that the claimant’s own assertions about her condition, coupled with what was said in the report of Mr McSweeney about the effects of her road traffic accident, established her entitlement to severe disablement allowance without anything more being needed.  A probing attitude towards any inadequacies and inconsistencies in the claimant’s case and the evidence being put forward is entirely proper in such circumstances and no evidence of bias at all.  
     28.     	Then the claimant says that the decision that she had not attained the 80% severe disablement threshold was unreasonable having regard to the evidence of the examination carried out by the previous tribunal on 26 July 2001 and Mr McSweeney’s report, the only medical evidence she put forward apart from the short letter from her GP about having treated her for a painful hip on 10 August 2001.  The argument as formulated in her observations in reply at page 121 that “...incorrect fact was used to make determination and therefore [sic], error in law has occurred”, is in any event misconceived:  it is fundamental that a Commissioner on an appeal confined to questions of law cannot interfere with assessments of fact and degree made by the tribunal, and to say there are grounds to disagree with their factual findings does not show any arguable error of law. On matters of fact, degree and medical opinion there is usually a span of possible judgments that can reasonably be made; and no error of law is demonstrated simply by saying that the tribunal could or should have taken a different view about the facts or that another professional person has expressed views which can or should be interpreted as more favourable to the claimant.  
     29.     	Here, it seems to me that despite the fact that the detailed findings recorded on each medical examination are not of course identical with one another and do indeed show some differences, there was as the tribunal observed considerable unanimity on the basic point that they did not support the level of disablement the claimant herself alleged.  Moreover there is in my judgment no ground for saying that the overall assessment of 35% total disablement was unreasonable in the required legal sense of being a perverse one, without a proper basis in the evidence and recorded findings.  It may have been harsher than that of the departmental doctor whose report gave the only other percentage assessment carried out, and may for example have declined to give her the benefit of any doubt on the line between genuine arthritic disablement and conscious or unconscious restriction of movement, in view of the previous tribunal’s doubt about the presence of the claimed “generalised osteoarthritis” and the refusal to divulge further medical evidence; but those were matters for the tribunal.  They do not make the decision itself open to challenge in law.
     30.     	Finally and in any event, it must be remembered what was the actual issue the tribunal were called on to decide, namely whether it was shown that her degree of disablement equalled or exceeded the statutory 80% threshold, so that the actual decision that she was not entitled to severe disablement allowance became incorrect.  Even though the tribunal based its rejection of the appeal on its own much less favourable assessment of the true percentage of her disablement, it remains the case that it was for the claimant to satisfy them by proper evidence that her disability did indeed equal or exceed 80% and  she had been improperly under-assessed by the department: if she was unable to do that, her appeal had to fail.  No reasonable person could have been left unaware from the outset that the reason her claim had been declined was that the assessment fell short of the required statutory percentage, and that this was the issue that needed to be addressed if her claim to benefit was to be established: the claimant herself will have been well aware that this was the issue, having by her own account been involved in a previous set of tribunal proceedings attempting to get an earlier percentage assessment raised:  see page 62. 
     31.     	Yet she placed no medical evidence whatever before the tribunal on this appeal that even addressed the required statutory assessment of her disablement in percentage terms, though given every opportunity to do so.  The one and only piece of medical evidence addressing this issue was the report of the departmental doctor on which the claim had been rejected, showing a total assessed disablement of 67%.  The report of Mr McSweeney was prepared for a different purpose, did not address the claimant’s condition in terms of the statutory percentage assessment at all, and could not in my judgment have been taken by any reasonable person as demonstrating, without more, that the claimant’s condition equalled or exceeded the 80% statutory threshold of extremely severe disablement or as demolishing the departmental assessment without the need for further evidence or inquiry; which is in substance the proposition the claimant invited each tribunal to accept and what she now criticises the second tribunal as “biased” for not accepting.  
     32.     	On the contrary in my judgment, that report plainly and obviously fell well short of establishing anything of the kind, as is confirmed by the fact that the earlier tribunal which sat on 26 July 2001 were plainly not satisfied that the material placed before them by the claimant was sufficient to determine the appeal in her favour as she claimed.  By the time the matter came before the tribunal again on 22 January 2002, the claimant had refused to allow further medical evidence to be provided and during the course of the hearing itself made clear her disdain for specialist medical advice and her dissatisfaction with conventional medicine generally, so there could have been no question of that tribunal being obliged to consider allowing her yet further opportunities to obtain the kind of medical evidence that, if forthcoming, might have been able to remedy the inadequacies of her case on the appeal.  
     33.     	Accordingly, even entirely discounting the tribunal’s own findings on clinical examination on 22 January 2002, there was simply no sufficient material before them in the whole of what the claimant had put forward in support of her appeal that could possibly have led any reasonable tribunal to any different conclusion from the one they in fact reached: namely that she had failed to establish to their satisfaction that she was suffering a severe degree of disablement equal to or over the 80% statutory threshold.
     34.     	Consequently, the tribunal on 22 January 2002 reached what was on any basis the only conclusion open to them as a reasonable tribunal on the claimant’s appeal as it was brought before them; and it follows that whatever may be the outcome of her separate complaints to those responsible for the tribunal administration, there is no ground for setting aside the tribunal’s decision for error of law.  I accordingly confirm the decision and dismiss this appeal. 
     35.     	
(Signed)

P L Howell
Commissioner
8 July 2003
     1.