CDLA/2961/2004

DECISION OF THE SOCIAL SECURITY COMMISSIONER
  
1.	I allow the claimant’s appeal.  I set aside the decision of the Hull appeal tribunal dated 24 June 2004 and I refer the case to a differently constituted appeal tribunal for determination.

REASONS

2.	The claimant claimed disability living allowance on 1 August 2003.  Her claim was disallowed and the tribunal dismissed her appeal.  She now appeals with the leave of a full-time chairman and the support of the Secretary of State.

3.	In effect, both parties submit that the tribunal erred in failing to give adequate reasons for preferring the examining medical practitioner’s evidence to that of the claimant’s general practitioner who had marked “yes” as the correct answer to a number of questions about the effects of the claimant’s condition and had given an estimate as to the distance the claimant could walk before the onset of severe discomfort.  In broad terms, the reasons given by the tribunal were clear.  It considered that the claimant’s own oral evidence and its observations of her suggested that she was less disabled than the general practitioner’s evidence suggested and that there was no evidence that the general practitioner’s opinion was based on an examination of the claimant, whereas the examining medical practitioner’s plainly was (although I observe that it could have asked the claimant whether she had been examined by her own doctor).  Furthermore, it took the view that if the claimant was as disabled as was claimed, she would have been receiving more attention from the National Health Service.  Those were all perfectly valid reasons.

4.	I also do not accept all of the more detailed criticisms of the tribunal’s reasoning.  For instance, both parties for some reason take exception to the tribunal having said that the general practitioner’s evidence “gave the impression that the Appellant was a serious invalid”.  I do not consider that the tribunal meant more than that his evidence, if accepted, would have implied that the claimant was very severely disabled, which seems to me to be precisely what she was claiming.  Nor do I accept that it would have been inaccurate of the tribunal to record that the claimant “was seen to rise from her chair … without apparent difficulty” merely because she needed to use the table to support herself when she rose, given that the tribunal was primarily concerned with the extent to which the claimant needed assistance “from another person”.  Similarly, it was not unreasonable for the tribunal to rely on the fact that the claimant managed to get out of bed in the morning when her husband was out at work as being an indication that she did not attention from another person in connection with that task.  I accept that the test is whether a person reasonably requires attention rather than whether she actually receives it but there is a very great difference between somebody having difficulty with a task and somebody reasonably requiring attention in connection with that task.  Unless the difficulty is so great that it is unreasonable to expect the person to undertake the task unaided or at all, merely having a difficulty is not sufficient to show a requirement for attention from another person.  The fact that a person usually manages a task on her own and has taken no steps to try and obtain assistance with it is often powerful evidence that there is no reasonable requirement for assistance, although there are, of course, people who try to do more than they should.

5.	However, I accept that there are other elements of the tribunal’s reasoning that appear flawed.  The statement of reasons records that the claimant “was seen to rise unaided from her chair and walked in and out of the Tribunal room without apparent difficulty”.  Leave to appeal was given because the tribunal did not put that observation to the claimant, although that would presumably have meant calling the claimant back in and I am not entirely sure that that is necessary if the observation does no more than lend a little support to a view that has already been formed for other reasons.  However, in this particular case, the claimant’s representative says that in fact the claimant was physically supported by a worker from the woman’s centre as she walked out of the room and it is pointed out that the observation was not recorded at the time and may simply have been a recollection of the chairman when he came to write the statement of reasons about a month later.  Perhaps more importantly, one of the respects in which it was said that the claimant’s own evidence did not support the opinion of her general practitioner was as to the extent of her ability to walk.  The general practitioner said that the distance the claimant could walk without severe discomfort was less than 50 yards.  In the statement of reasons it is said that the claimant “admitted that she walked to her bus stop and across the road and to her GP’s surgery”.  The record of proceedings records her as saying –

“To go to GP:  I walk to ’bus stop – 50 yards.  I stop after 20 yards.  The ’bus journey is an ordeal.  After I get off ’bus I have a similar distance to walk.”

I agree with the claimant’s representative that it appears that she did not suggest that she could walk further than her doctor said she could walk without severe discomfort.

6.	For these reasons, I am prepared to allow the appeal.

7.	I also observe that the tribunal gave as an additional reason for relying on the examining medical practitioner’s report rather than the general practitioner’s was that the examining medical practitioner was “a neutral and unbiased person”.  “Neutral” is an odd word to use, given that the examining medical practitioner acts on behalf of one of the parties to the proceedings before the tribunal and it is in effect his judgment that is being challenged.  In CIB/563/2001, the Deputy Commissioner said that it was “irrational” to describe an examining medical officer as “independent”.  I accept that such a doctor may be relatively disinterested but a general practitioner’s support for a patient may be based on a long-standing and strongly held view as to the seriousness of her condition.  It seems to me generally to be better to evaluate medical evidence by reference to its inherent strengths and weaknesses.  In this case, the great weakness of the general practitioner’s evidence was that the reasoning behind it was not revealed at all.  I understand why the claimant’s representative uses that form of questionnaire – because it is more likely to get a response as it is easy to complete – but the lack of reasoning will always diminish its weight.  However, the questionnaire was well designed in that the questions it asked were entirely open and the doctor marked “less than 50 yards” as the distance the claimant could walk before the onset of severe discomfort in preference to three other alternatives.  Given that the examining medical practitioner expressly added “my opinion” in parenthesis to his estimate of 100 metres (which appears to have included a halt due to pains”, there may not have been much to distinguish the two reports in terms of their inherent weight on that particular issue or even as to the opinions. 

8.	I am told that the claimant has subsequently made another claim for benefit and that it was disallowed, so that the present case is concerned only with the period from 1 August 2003 to 24 June 2004.  I do not know whether there has been any challenge to the disallowance.  If there has, the outcome may have a bearing on whether the claimant wishes to continue with this appeal before the tribunal or whether the Secretary of State wishes to continue to oppose it.

	(signed on the original)	MARK ROWLAND
		Commissioner
		1 July 2005