CI 3758 and 3759 2003

DECISIONS OF THE SOCIAL SECURITY COMMISSIONER ON THE APPLICATIONS AND APPEALS 

I grant permission to the claimant to appeal in both cases and, with the consent of both parties, allow the appeals.

The claimant and appellant is appealing against the decisions of the Swansea appeal tribunal on 22 April 2003 under reference U 03 204 2002 01730 (file no. 3759) and U 03 203 2002 02681 (file no. 3759). 

For the reasons below, the decisions of the tribunal are wrong in law. I set them aside. The appeals are to be reheard.

DIRECTIONS FOR REHEARING

A	The appeals are referred to a new appeal tribunal for a full rehearing in accordance with the directions given in this decision: Social Security Act 1998, s. 14(8) and (9).  They are to be heard concurrently or consecutively as the chairman shall decide.

B	The rehearing is to be by a tribunal not including any member of the previous tribunals that considered this case. For reasons of fairness, it should also not include anyone who was a member of the disability appeal tribunal that considered the claimant’s disability living allowance appeal, unless the parties consent to that.  

C	The tribunal will conduct an oral hearing.

D	The tribunal should note the guidance on assessment of disablement noted below, and should ignore the approach taken by the previous tribunal to assessment.

REASONS FOR THESE DECISIONS 

1	An oral hearing of the claimant’s applications for permission to appeal was  directed by Commissioner Rowland. That hearing took place at the Cardiff Civil Justice Centre on 14 January 2004. The claimant attended together with his wife and daughter. The Secretary of state was represented by Mr V Lewis of the Office of the Solicitor to the Department for Work and Pensions. I am grateful to both for their submissions.

The tribunal decisions

2	There are two decisions under consideration in these appeals, but both were heard at the same time by the tribunal and one (file no. 3759) relates to a request to supersede the other (file no. 3758). Any issue about the joint hearing of these cases or the evidence relating to them therefore affects both decisions. Accordingly I deal with them together. It became clear during the hearing that Mr Lewis, having heard from the claimant, supported aspects of the claimant’s application. I indicated that I was minded to grant the applications having heard from both parties, and then invited both parties to consent to my hearing the case as an appeal as well as an application. Both parties consented to this, and this decision deals both with the applications and the appeals.

3	 As I gave my decisions, and the main reasons for them, at the oral hearing, I deal with matters briefly to confirm them. The claimant was concerned that the tribunal did not take its decisions until the report of his forthcoming MRI scan came through. As is commonly the case, the claimant had been waiting for months for this. He stated this to the clerk to the tribunal and formed the impression that this was in order. But the matter was not put to the tribunal by the clerk, nor did the claimant think he could raise it until, in effect, it was too late. While I note that there had been a previous adjournment of these cases in September 2002, and the claimant had commented himself on delay, I agree with Mr Lewis that the tribunal should have been asked about, and should have considered, waiting for the scan at the start of its hearing, not least because the second decision reflected the position in 2002. Having heard from both parties, I am not satisfied that the matter was properly put to the tribunal and, perhaps because of this, was not fully considered when it was raised. 

4	The other inadequacy was in handling evidence from the general practitioner and of the disability living allowance award. The letter from the general practitioner in October 2002 raises two issues. The first is that the general practitioner took the view that what he refers to as the claimant’s “current predicament” was entirely related in his professional view to the consequences of the accident. The second was that the claimant is subject to the “exceptional” treatment of a regular dose of morphine to control pain as without it he is severely disabled. The claimant apologised to me for the effect of the morphine on him during the hearing before me, and I commented that there was some evidence that he was being confused by it. If the claimant is disabled by the drug regime resulting from the consequences of the accident then that must also form part of the assessment of the total effect on him. 
In connection with the disability living allowance claim, the evidence in the examining medical practitioner's report is of someone whose ability to walk is severely limited by pain. A tribunal found that this was such as to render him virtually unable to walk because of the severe discomfort. Any assessment by this tribunal should have taken that evidence into account, and I do not understand the statement of this tribunal that that evidence “does not affect our decision”.

Setting the level of disablement   

5	This tribunal set out at some length the framework within which it reached a percentage decision. I have to say that I have difficulty in seeing how that account, which finds that the claimant is suffering from “moderate discomfort” ( the underlining is by the tribunal), is to be reconciled with the evidence before the tribunal, including in particular the evidence just noted. I stress that because neither source of evidence can be subject to the criticism of the tribunal that there was a degree of overemphasis in the claimant’s evidence (and, indeed, one may partly explain it). For myself, I have difficulty in accepting that the reduction of the claimant’s disablement from 40% to 20% from 1 January 2001, as confirmed by this tribunal, is in law soundly based on the evidence available to the tribunal. 

6	As I am sending the matter back, I also mention that there is evidence both of some incontinence and of impaired sexual function, both of which must also properly be assessed as part of the overall disablement of the claimant (see the guidelines in the appendix). I draw attention to the fact that no clinical findings were made on these issues by the medical adviser in 2002 although they are both directly relevant to the issue of the claimant’s overall disablement. There is clinical comment by the medical member of this tribunal on bowel incontinence but no other finding by the tribunal.   The new tribunal should consider the available evidence on these issues and make any necessary findings. 

The Medical Assessment Framework

7	There is a further point that must be raised. It is clear from the decision that the tribunal was relying on and applying the Department’s Medical Assessment Framework in grading the claimant’s disability and setting the level of disablement. That is the only conclusion I can draw from the comments of  the chairman that:

We are, as indeed examining assessors are, guided by what are called Medical Assessment Frameworks, by statutes such as the War Pensions Act, and by General Benefit Regulations of 1982. All of these documents available to ourselves and indeed to examining medical assessors give guidance with regard to specific injuries.
 
That is fundamentally wrong. If that is the approach this tribunal took, then it undermines the whole independence of the tribunal. If it was guided by (underlining mine) the Departmental Framework, it was patently in breach of its duty of fairness to both parties under common law and to preserve an equality of arms between the parties as required by Article 6 of the European Convention on Human Rights.  It cannot be emphasised too strongly that the Medical Assessment Framework does not give guidance to tribunals. It states the views of a government department that happens to be one of the parties before the tribunal in this appeal and it may explain those views, but it is no more than that. 

8	Further, if the tribunal did take account of the Medical Assessment Framework in this case it was also acting unfairly for two separate and further reasons. It had at no time raised this matter with the claimant, and the Secretary of State had not put it in evidence, so the claimant was not aware of it. The Medical Assessment Framework is not law, and cannot be assumed to be known by anyone to whom it has not been notified. And it is not the job of the tribunal to put the views and evidence of one party about levels of assessment before the other party. That itself would call into question the equality of arms.  For the Medical Assessment Framework to be put in issue, the Secretary of State must put it fully into the submission made to the tribunal, or otherwise notify the claimant of it, and the tribunal must make it clear how far it is considering that framework in reaching its own decision, or at least invite comments on it. And the tribunal can accept it only as part of its own decision having considered the matter for itself. That must include whether it accepts the analysis of the framework as related to the particular injury, as well as the level of assessments indicated. 

9	As I have stated in other decisions, the only objective set of criteria in this area is the Guidelines for the Assessment of General Damages in Personal Injury Cases produced by the Judicial Studies Board (the latest, 6th , edition is published by Oxford University Press). I set out the framework for back injuries as an annex to this decision. If the tribunal seeks guidance on assessment of back injuries, then it should use the JSB guidelines. I add the following comment from Lord Phillips MR in the foreword to that edition: 

If … victims of negligence are to feel that justice has been done, they must be treated consistently. These guidelines assist with that task in that they provide an almost up-to-the-minute distillation of the damages that are being awarded by courts throughout England and Wales. Anyone using this book, and everyone concerned with the assessment of such damages would be wise to use it, will swiftly be able to identify the scale of the damages that are being awarded …

I have included the sums in the annex although they are of indirect relevance to industrial injuries assessment. But the general approach and the views of Lord Phillips are, with respect, as relevant here as in the civil courts.  (I defer to my Scottish colleagues with respect to cases in Scotland).  
 
10	Unless, therefore, the Secretary of State puts the framework in evidence before the new tribunal, and the tribunal invites the claimant’s comments on it, I direct the new tribunal to ignore the Framework entirely and also to ignore that part (namely the assessment of disablement) of the decision of the tribunal now under appeal entirely.  

								David Williams
								Commissioner

								22 January 2004
[Signed on the original on the date shown]

ANNEX TO CI 3758 and 3759 2003:

Extract from JSB Guidelines for the Assessment of General Damages in Personal Injuries Cases, 6th edition, Oxford University Press, 2002, chapter 6, Orthopaedic Injuries, pp 31 -32. 

Back injuries

Relatively few back injuries which do not give rise to paralysis command awards above about £25,000. In those that do there are special features.
(a) 	severe
(i)	Cases of the most severe injury which do not involve paralysis but where they may be very serious consequences not normally found in cases of back injury, such as impotence or double incontinence.		£52,000 to £87,500.
(ii)	Cases which have special features taking them outside any lower bracket applicable to orthopaedic injury to the back. Such features include impaired bladder and bowel function, severe sexual difficulties and unsightly scarring and the possibility of future surgery.		In the region of £42,500.
(iii)	Cases of disc lesions or fractures of discs or of vertebral bodies where, despite treatment, there remain disabilities such as continuing severe pain and discomfort, impaired agility, impaired sexual function, depression, personality change, alcoholism, unemployability and the risk of arthritis.	 £20,000 to £36,000.
(b)	moderate
(i)	Cases where any residual disability is of less severity than that in (a)(iii) above. The bracket contains a wide variety of injuries. Examples are a case of crush fracture of the lumbar vertebrae where there is substantial risk of osteoarthritis and constant pain and discomfort with impairment of sexual function; that of a traumatic spondylolisthesis with continuous pain and a probability that spinal fusion will be necessary; or that of a prolapsed intervertebral disc with substantial acceleration of back degeneration.		£14,500 to £20,000.
(ii)	Many frequently encountered injuries to the back such as disturbance of ligaments and muscles giving rise to backache, soft tissue injuries resulting in exacerbation of an existing back condition or prolapsed discs necessitating laminectomy or resulting in repeated relapses. The precise figure depends upon the severity of the original injury and/or whether there is some permanent or chronic disability. 		£6,500 to £14,500.
(c)	minor
Stains, sprains, disc prolapses and soft tissue injuries from which a full recovery or recovery to “nuisance” level has been made without surgery: 
(i)	within about 5 years - £4,000 to £7,000; 
(ii)	within about two years: - up to £4,000.