[2005] UKSSCSC CDLA_4208_2004 (27 April 2005)
CDLA 4208 2004

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1	I allow the appeal. For the reasons below, the decision of the tribunal is wrong in law. It is set aside. I refer the appeal to a new tribunal to consider in accordance with the directions in this decision.  (Social Security Act 1998, section 14(8) and (9)). 

2	The claimant and appellant is appealing with my permission against the decision of the Portsmouth appeal tribunal on 13 August 2004 under reference U 03 201 2004 00167 
  
3	DIRECTIONS FOR REHEARING

A	The rehearing will be at an oral hearing. 

B	The new tribunal should not involve any member who has previously been a member of a tribunal involved in this appeal.
 
C	The claimant is reminded that the tribunal can only deal with the appeal as at the date of the original decision under appeal. This was 31 July 2003.

D	If the claimant has any further written evidence to put before the tribunal, this should be sent to the tribunal within one month of the issue of this decision. 

These directions are subject to any later direction by a district chairman. 

REASONS FOR THE DECISION 

4	The claimant claimed disability living allowance for the first time as a consequence of a back injury at work in 1997.  There is no record of an industrial injuries disablement benefit award or claim. The examining medical practitioner also records a further injury on 5 July 2003. The claim form raised issues about mobility and care needs. It was referred to an examining medical practitioner who carried out a home visit. The examining medical practitioner records under the heading “clinical findings”: 
	“Not chaperoned so formal examination not possible.”
Nonetheless, the examining medical practitioner spent 30 minutes with the claimant. The doctor completed the form apart from the question about significant clinical findings, where the entry is simply a short line.  There is reference to “informal observation” against the doctor’s view that the claimant had no limitations on any aspect of care needs.  There is a comment that suggests that the claimant was “demonstrating a degree of illness behaviour”.

5	In her letters of appeal the claimant stated that she was now getting additional physical and pain problems. She also objected to aspects of the medical examination.  

6	The first tribunal to which the appeal came adjourned for a report from the general practitioner and for the claimant to attend.  The claimant responded by stating that her general practitioner had now diagnosed osteo-arthritis. She also sent in an occupational therapist’s report.  When the next tribunal hearing was listed in March 2004, the claimant stated she could not attend for a number of reasons. That tribunal also adjourned, in part because it considered that the general practitioner ought to be asked again for the report before the case was decided.	This was followed by a letter from the claimant about a hospital appointment in the local rheumatology department in August 2004.  The general practitioner’s report was received, but it merely confirmed the reference to the hospital. It appears that the delay in providing the report was while payment of a fee was authorised, although the papers sent to the tribunal do not disclose this.  The case came before a tribunal for the third time in August 2004. The claimant was not present but she did not say why. The tribunal checked that she had been notified before deciding to proceed. I see no reason to fault the tribunal for this. 

7	The full statement of the tribunal, refusing both components of disability living allowance, sets out the evidence in some detail, but fails to note the limited nature of the examining medical practitioner report. Instead, the tribunal records that the examining medical practitioner “examined” the claimant. It goes on to rely on the examining medical practitioner’s “clinical findings” about the claimant’s care needs. It also took into account the examining medical practitioner’s assessment that the claimant had only a functional problem with her left shoulder.   

8	The claimant’s grounds of appeal are in essence a continued criticism of the examining medical practitioner report and a disagreement with the tribunal’s fact finding, together with an update on the claimant’s then current condition.  In granting permission to appeal I raised a number of points, one of which was about chaperoning arrangements. I return to that below. The secretary of state's representative did not support the appeal.

9	Representations were then made by solicitors for the claimant (previously unrepresented). They noted the basis on which the tribunal considered the examining medical practitioner report. They contended that the tribunal did not consider the evidence properly or weight it adequately.

10	Given the claimant’s own information in the claim form about walking being limited to 100 yards, and the other evidence, I consider that the tribunal had evidence to justify its decision on the mobility component and weighed the evidence on that issue properly. I do not agree with the grounds of appeal on that aspect of the decision.

11	I agree with the solicitors’ objections about the care component. The claimant had specifically put in issue her criticisms of the examining medical practitioner report. Despite that, and despite the limited nature of that report, the tribunal “accept on the basis of [the doctor’s] clinical findings” that the claimant could perform various actions. In my view the tribunal did not deal with the examining medical practitioner report adequately in referring, as it did, to the “examination” and “clinical findings” without noting that this was not a full examination and also that the claimant criticised it. Any views of the examining medical practitioner about functional limitation are to some extent opinions or guesses rather than findings.  I am not satisfied that the tribunal took that into account in balancing the available evidence on the care component. Nor am I satisfied that the tribunal properly put the occupational therapy report into the balance when considering care needs (although it did for mobility needs).  That was detailed independent evidence on some aspects of care needs. One final point is that the tribunal records that it accepts that the claimant’s condition is variable, while the examining medical practitioner reported “no fluctuation”. So the tribunal did not accept the examining medical practitioner report on that point, but it did not explain why nor follow the point through.

12	Aside from that, I do not accept the claimant’s own grounds of appeal. The claimant clearly did not realise that the tribunal could only look at events in July 2003, and the tribunal, in referring only to “the relevant date” rather than a specific date, does not make that clear on the face of its reasons. I also note that the examining medical practitioner’s report suggests that the disablement may have been in part in consequence of a further fall just a few weeks before the claim. That issue is one to which no one has so far given attention.  But it may need further investigation when the case is reheard.  The claimant’s representatives will be aware that there can be no award for the first three months of any period of disablement.

13	This decision raises issues that I cannot decide at this stage, and so should be reconsidered by a new tribunal. 

Chaperoning

14	When I considered the application, it appeared to raise a question about the examining medical practitioner’s report being completed without formal examination.   The secretary of state's representative pointed out that it was for a doctor to decide if a claimant was to be examined without a third person present, and helpfully supplied me with details of the guidance given to examining medical practitioners on this issue. At section 14.13 of the official Guidance for Examining Practitioners the official advice is:

“When carrying out a physical examination, you should use your professional judgment to decide when it is appropriate to offer a chaperon, or to invite the claimant to have a relative or friend present. In this context, the duty of the chaperon is to protect you from any possible complaints about unethical conduct, and the chaperon’s role is merely to remain in the room whilst you examine the claimant, unless you ask the chaperon for assistance. This guidance assumes particular significance when the doctor and claimant are of the opposite gender.

If a chaperon, relative or friend is present, you should record the fact on the report form, making a note of the person’s identity. If the claimant does not want a chaperon, you should record that the offer was made and declined.

Give the claimant privacy to dress and undress. Do not assist the claimant in removing clothing unless you have clarified with them that your assistance is required.”

This is reinforced by the terms of the official letter sent to a claimant before a medical examination. That invites the claimant to arrange for a friend, representative, carer or family member to be present at the examination.

15	I intend no criticism in this decision of the examining medical practitioner in this case. The importance of having a third person present is to some extent illustrated here by the complaints made by the claimant even when there was no examination. I agree with the secretary of state's representative that it is for each practitioner to decide whether to conduct an examination with no third person present. That may suggest that the examination should be postponed and a further visit arranged when a third person could be present. That does not appear to have happened here. It will be a matter of judgment whether that is necessary. But where, as a result, the examining medical practitioner does not conduct a full examination that must be taken into account both by the Secretary of State and a tribunal in weighing the evidential value of findings and opinions in the report.  

								David Williams
								Commissioner
								27 April 2005
[Signed on the original on the date shown]