[2006] UKSSCSC CDLA_2309_2005 (13 March 2006)
CDLA 2309 2005

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.   

2	The claimant and appellant (“Mr A”) is appealing with my permission against the decision of the Cardiff appeal tribunal on 08 07 2004 (“the second tribunal” in this decision) under reference U 03 188 2004 00416. 
  
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.  That is October 2003.
D	If the claimant or the Secretary of State 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	This appeal and the underlying claim have a long history. Perhaps as a result, the papers before me are in something of a muddle. This case has to go back to a tribunal, and they should be put in order before that tribunal deals with the substance of the claim on the evidence. My decision is confined to a procedural issue. I therefore do not comment further on the entitlement of Mr A to an allowance.

5	Mr A was awarded the higher rate of the mobility component and lowest rate of the care component of disability living allowance from 20 05 1998 to 19 05 2003 by an appeal tribunal (“the first tribunal”) on 02 05 2001. Renewal of that award was invited early in 2003. Mr A claimed with an effective date of claim of 17 04 2003. As a result of a failure of the appellant to attend medical examinations, entitlement was ended on 05 03 2003 from that date. Another decision to stop the allowance was taken on different grounds, on 01 08 2003. I am none too clear about the course of events from the papers, and I note they appear to have involved third party fraud notified to the police. But Mr A’s entitlement was looked at again. As a result, a decision was taken on 14 10 2003 to revise the decisions of 05 05 2003 and 01 08 2003 to the effect that Mr A remained entitled to the allowance to the original date awarded by the first tribunal, 19 05 2003.  A separate decision was made on the same day to refuse the new claim made on 17 04 2003 with effect from 20 05 03. It is that second decision that is under appeal.  

6	The second tribunal identified the decision that it was considering, taken on 14 10 2003, as a decision on a new claim. That is not correct. The decision was a renewal claim. The effect of the revision decision taken on 14 10 2003 was to reinstate the award to 19 05 2003. Under the Social Security Act 1998 that takes effect from the original date of decision: section 9(3). Therefore, as the decision maker knew on 14 10 2003 when taking the decision under appeal, Mr A made his claim on 17 04 2003 while the previous entitlement still subsisted. The decision maker was right (although for the wrong reasons) in making the new decision from 20 05 2003. 

7	The complaint of Mr A and his representative to the second tribunal was that the examining medical practitioner who conducted the medical examination for his earlier claim in 2000 was the same medical examiner who conducted the medical examination in 2003. (I call him Dr H). In their view this was unfair because they had complained to the first tribunal about the conduct of Dr. H. It was a breach of natural justice that Dr H be asked to examine Mr A again on a later claim for the same benefit. 

8	The first tribunal made a decision that indicated that it did not accept the evidence of Dr H on critical issues of entitlement. That is clear from the papers in the file about the earlier claim. In 2000 Dr H reported that the appellant could walk several hundred metres and had no care needs at all. The first tribunal in 2001 found that the appellant was virtually unable to walk and met the “main meal” criteria for the lowest rate of the care component. It could have reached that decision only by completely rejecting Dr H’s evidence on mobility and partially rejecting his evidence on care needs.  

9	The second tribunal was faced with a challenge to Dr H’s evidence that repeated a challenge to the evidence in 2000 and called in aid the challenge in 2001. The second tribunal declined to make any specific decision about the appellant’s complaint about Dr H. It then decided that Mr A was entitled to the lower rate of the mobility component to prepare a main meal but rejected the claim for higher rate of the mobility component. 

10	In reaching that decision, the second tribunal completely failed to take into account the response of the first tribunal to the evidence before it. And the second tribunal rested its decision on its finding that “the appellant was not a credible witness” but that the evidence of Dr H was “detailed and careful”. Having given these broad generalisations as reasons for its approach to the evidence, it went on to find that Mr A was entitled to the lowest rate of the care component. But it can only have done that by reference to Mr A’s evidence on that issue, and by rejecting Dr H’s evidence on the point, as the only relevant evidence was that of Mr A and Dr H. So there must have been some “credibility” in the appellant’s evidence, and there must have been some unconvincing aspect to the evidence and opinions of Dr H in his “detailed report” following  “a careful and detailed examination”. 

11	The decision of the second tribunal is both internally inconsistent and inadequate. In addition, as above, it failed to take into account that the complaints by Mr A about Dr H’s first report must have been accepted in part by the first tribunal. The first tribunal could not otherwise have reached a decision so sharply different to that of the opinion of Dr H. It was inappropriate for the second tribunal to take the view that it did about Dr H’s evidence in the light of the challenges by Mr A and his representative without considering why it was taking such a different view to that of the first tribunal and giving its reasons. 

12	I do not agree with the specific ground of appeal that the use of Dr H as the examining medical practitioner for the 2003 examination was of itself unfair. It might be otherwise if – and this has not been stated at any stage – Mr A had made a formal complaint about Dr H in 2000 such that it would be inappropriate for Dr H again to examine him, or there is some other more specific reason why Dr H should not have been the examiner. 
In most cases, including this one, the point will be one to be taken into account in weighing all the evidence. 

13	Mr A put the matter in issue, and it must therefore be decided on the evidence put before the tribunal by both parties in the light of that challenge. That, for example, allows the Secretary of State to produce further evidence if he wishes. What a tribunal should do in this case, and I direct the new tribunal to this point, is consider the weight properly to be put on Dr H’s second report in the light of its consistency with his first report, the consistency of the claims made by Mr A on both occasions, the consistency of the nature of the issues in dispute on the two occasions, the conclusions drawn by the first tribunal on Dr H’s first report in the light of Mr A’s evidence at that time, and all other evidence. The core question is whether Dr H repeated an approach, or opinions, in his 2003 report that were also in his 2000 report but had been rejected by the first tribunal, and if so whether he had indicated any different circumstances in the 2003 report as against those applying in the 2000 report. That does not mean that Dr H’s report in 2003 is either wrong or is to be disregarded in its entirety. But it does mean that the tribunal should consider the weight to be given to the report carefully on each of the elements in issue. 

14	It is therefore important that the new tribunal consider this case as a renewal application and decide if things have changed from the first tribunal decision. In considering that, it must be careful how it treats evidence of change in so far as it is derived from that part of Dr H’s report to the first tribunal that was rejected by that tribunal. 

									David Williams
									Commissioner

									13.03.2006