[2007] UKSSCSC CDLA_2746_2006 (19 February 2007)
CDLA/2746/2006

DECISION OF THE SOCIAL SECURITY COMMISSIONER
  
1. I dismiss the claimant’s appeal against the decision of the Durham appeal tribunal dated 24 May 2006.

REASONS

2. On 2 November 2005, the Secretary of State disallowed a claim for disability living allowance made by the claimant with effect from 25 July 2007.  The claimant appealed, seeking the higher rate of the mobility component and the lowest rate of the care component, but, on 24 May 2006, the Durham appeal tribunal dismissed the appeal.  He now appeals against the tribunal’s decision with the leave of Mr Commissioner Pacey.  The appeal is resisted by the Secretary of State.  I held an oral hearing at which the claimant was represented by Mr Mick Guy of Durham Welfare Rights and the Secretary of State was represented by Mr Huw James, solicitor, acting as agent for the Solicitor to the Department of Health and the Department for Work and Pensions.  I am grateful to both Mr Guy and Mr James for their helpful submissions.

3. The principal medical evidence in the case consisted of a report by an examining medical practitioner, Dr Winn, and a letter dated 8 December 2005 from the claimant’s general practitioner, Dr Harries, in which she expressly took issue with some of Dr Winn’s comments.  The tribunal took the view that “Dr Harries’ assessment was less accurate than that of Dr Winn because it was not contemporaneous or based on clinical examination”.  Mr Guy refers to the tribunal’s earlier observation in paragraph 5 of the decision that Dr Harries had last seen the claimant some 4 or 5 months before she wrote her letter and he points out that that would have been more or less contemporaneous with the claimant’s claim so that the finding that her assessment was “not contemporaneous” was simply wrong.  He also submits that it was wrong to say that the Dr Harries had not examined the claimant, given that the claimant had seen him on previous occasions and that the tribunal was wrong to take the view that, because the claimant had only seen Dr Harries “for specific matters”, that her evidence was any less valuable.  He submits that both Dr Harries and Dr Winn had relied on observations and that the tribunal gave no good reason for rejecting Dr Harries’ evidence.  He refers to CS/773/81, CDLA/1898/2003 and CIB/3074/2003.

4. In my judgment, the submission that the tribunal erred in describing Dr Harries’ report as being “not contemporaneous” is based on a misunderstanding of the tribunal’s reasoning.  It is worth setting paragraph 5 out in full –

“There was a conflict in the medical evidence and Mr Guy urged the Tribunal to prefer the evidence of Dr Harries as being the Doctor with best knowledge of the Appellant.  However, the Appellant said he had last seen Dr Harries some 4 or 5 months before her letter which was dated 08.12.05 and he had seen her only 3 or 4 times and for specific matters.  She had not examined him nor carried out any walking test but Dr Winn had carried out a full clinical examination specifically for the purposes of the DLA claim and his findings supported his assessment of the Appellant’s functioning ability.  The Tribunal accepted the clinical findings and assessment of Dr Winn.

“The Tribunal found the claimant to be an unreliable witness being very variable as to his walking ability and inconsistent as to both physical and mental health problems and the Tribunal noted that he reacted inappropriately during Dr Winn’s examination suggesting some degree of exaggeration.”

5. What, it appears, was significant to the tribunal was that Dr Harries’ letter was not based on a medical examination carried out at the time the letter was written.  She records observations of the claimant but she does not record clinical findings that might give a more accurate picture of the claimant’s capacities and there was no evidence in her letter that she had ever carried out a clinical examination that would have been particularly relevant to the claimant’s claim for disability living allowance.  It seems to me that, in its context, the tribunal’s view that Dr Harries’ letter was “not contemporaneous” is to be read as a (correct) understanding that it was not contemporaneous with a medical examination.

6. Nor do I consider that the tribunal erred in saying that her evidence was not based on a clinical examination.  Mr Guy argued that there was no evidence that there had been no examination but the tribunal was entitled to infer from the lack of reference to an examination in the report that it was not based on an examination and, moreover, the claimant has not asserted on this appeal that there has ever been a relevant examination.  I dare say that there had in fact been an examination at some time – by one of Dr Harries’ colleagues if not by her – because the claimant suffered from what Dr Harries described as “quite severe arthritis” and he had been referred to a consultant rheumatologist and a pain management clinic.  However, the report did not refer to any particular findings to set against Dr Winn’s findings and also did not refer to any particular observations by Dr Harries that contradicted Dr Winn’s observations.  I accept that much that Dr Winn recorded under the heading of “clinical findings” was a history but he did record findings as to the degree of function in each of the claimant’s joints.

7. None of this means that Dr Harries’ opinion was not entitled to respect.  In CS/778/1981, Mr Commissioner Mitchell said –

“It is in the nature of things that a general practitioner who has been regularly seeing his patient is likely to be in a better position to form an accurate view of that patient’s condition than is a medical officer of the Department after a single examination.  Where, as here, the general practitioner is prepared to commit himself to an unqualified expression of opinion as to his patient’s capacity for any work, much weight falls to be given to such an opinion.”

In CDLA/1898/2003, Mr Commissioner Williams recorded, with approval, a submission of a claimant’s representative to the effect that –

“… [the general practitioner] was giving an educated opinion based on her knowledge of [the appellant’s] medical history and the likelihood of [the appellant] experiencing the limitations she described”.

However, neither Commissioner held that an opinion of a claimant’s general practitioner should normally be preferred to the evidence of an examining medical practitioner.  Nor could either Commissioner properly have done so.  In R(DLA) 3/99, Mr Commissioner May Q.C., holding that there was no authority for the proposition that evidence from an examining medical practitioner must of necessity prevail over that led by a claimant, made plain that the obligation of a tribunal is –

“… to consider the whole evidence in a case and in these circumstances they cannot accept one body of the evidence upon a basis that it must normally prevail over other evidence in the case.”

That obligation was mentioned in CIB/3074/2003, where Mr Commissioner Bano held a tribunal to have erred in describing an examining medical officer’s examination as “full and thorough” when the contents of the medical report did not justify such a view.

8. The problem in all these cases is, of course, that neither the examining medical practitioner nor the claimant’s general practitioner is available to give oral evidence to a tribunal and their medical reports tend not to engage fully with one another to the extent that, in many cases, there is actually no conflict between them at all even though one is relied upon by the Secretary of State and the other by the claimant.

9. In this case, there are in fact conflicts between Dr Winn’s opinion and Dr Harries’.  The former found full function in all of the claimant’s joints except for his knees in which he found a slight impairment of function that he considered might possibly be due to mild arthritis.  Dr Harries retorted that the claimant actually had quite severe arthritis and had arthritis in his toes, ankles, knees, his left wrist and his elbows.  However, she expressed no opinion as to whether the arthritis was equally severe in all those joints or whether the knees were the joints most seriously affected.  Dr Winn was aware of the diagnosis of arthritis in the feet ankles, left wrist and elbows (see the top of doc 64) but said (on doc 66) –

“Remaining limbs [which, I think, must be a reference to joints other than the knees] are normal.  There was a lot of overreaction and verbalisation when his joints are being examined.  No sign of inflammation.”

He thought the claimant could walk about 300 metres on level ground at a normal to slow pace in about 5 minutes before the onset of severe discomfort.  Dr Harries made no comment on the suggestion that the claimant was not a good historian, which is of some importance because she then said that the claimant “would certainly take at least 35 minutes to walk 300 metres and would have to stop frequently throughout this period and would be in pain all of the time”.  It is obvious that that view is partly based on her observation that the claimant “is in obvious pain when he gets up from the chair in the doctor’s surgery, and he limps and uses 2 sticks to walk.”  However, the detail, such as the time it would take the claimant to walk 300 metres, must have come from the claimant himself.  Plainly she did not consider it to be inconsistent with her objective knowledge of the claimant but it does not follow that her observations of the claimant would have led inevitably to the view that the claimant’s mobility was as limited as the claimant said.  I would also observe that Dr Winn had expressly referred to the claimant’s capacity to walk on “level ground” from which it might be inferred that he would have accepted that the claimant would have difficulty with stairs.  That would be consistent with the knees being affected with osteoarthritis as would the pain suffered on rising from a chair and the claimant’s need for raised seating and other aids mentioned by Dr Harries.  The fact that the claimant had difficulty with rising from a chair or with climbing stairs would not necessarily have a direct bearing on his entitlement to disability living allowance.  He might still reasonably be expected to cope without assistance and might reasonably be regarded as not being virtually unable to walk.

10. I do not doubt that the tribunal could have taken the view, in the light of Dr Harries’ evidence, that Dr Winn had underestimated the extent of the claimant’s arthritis and the difficulty the claimant had in walking and that the claimant was virtually unable to walk.  As Mr James readily accepted, Dr Harries evidence was stronger than is often the case with evidence from a general practitioner.  However, the crucial issue was the extent of the claimant’s capacity for walking upon which neither doctor had direct evidence.  In my judgment, the tribunal was entitled to take the view that, because Dr Winn had examined the claimant specifically with that issue in mind and because it appeared that Dr Harries’ assessment was based partly on the claimant’s account to her, which the tribunal regarded as unreliable for reasons additional to those given by Dr Winn, Dr Winn’s estimate was to be preferred.

11. It must be remembered that an appeal to a Commissioner now lies only on a point of law.  That was not the case when CS/778/1981 was decided and neither Mr Commissioner Mitchell in that case nor Mr Commissioner Williams in CDLA/1898/2003 were purporting to lay down any point of legal principle.  R(DLA) 3/99 makes it plain it is for a tribunal to weigh the evidence before it.  If the tribunal does so properly, a Commissioner cannot interfere with its decision, even if the Commissioner would have reached a different decision on the evidence himself or herself. This case is distinguishable from CIB/3074/2003, where the tribunal placed more weight on the examining medical officer’s report than it could properly bear.  

12. I am satisfied that, in this case, the tribunal’s decision is not erroneous in point of law on the grounds advanced by Mr Guy.  In my judgment, the tribunal was entitled to prefer Dr Winn’s evidence to Dr Harries’ where they disagreed and I agree with Mr James that the chairman has recorded an adequate statement of reasons for the preference.  Mr Guy submitted that the tribunal should have recorded findings as to whether the claimant had to stop and, if so, for how long and as to whether he suffered pain when walking.  I disagree.  The tribunal adopted Dr Winn’s finding as to what the claimant could do “before the onset of severe discomfort” and that was sufficient, given the finding that the claimant could cover the distance of 300 yards in five minutes.  It was unnecessary for the tribunal to record whether the claimant suffered a degree discomfort that was less than “severe” and whether he had to stop briefly during the five minutes to avoid severe discomfort.

13. At the hearing before me, the claimant mentioned that Dr Winn’s examination was incomplete because he did not use a stethoscope.  I have some doubt about that in the light of the clinical findings recorded half way down doc 67 and, as Mr James pointed out, this complaint was not made to the tribunal but, in any event, I do not regard any such lack of examination as a relevant consideration in this case.  Neither Dr Harries nor the claimant relied on breathlessness or his angina as the main factor limiting the claimant’s ability to walk.  A letter from the claimant’s wife in which she too commented on the apparent superficiality of Dr Winn’s examination was also placed before me.  In particular she says he only looked at the claimant’s legs and touched his ankles and that the latter action caused the claimant to wince.  However, if it was to be suggested that Dr Winn’s report should not be relied upon because the examination upon which it purported to be based was inadequate, the proper time for doing so was before the tribunal.  It is too late to take that sort of factual point before a Commissioner.  

 (signed on the original) MARK ROWLAND
  Commissioner
  19 February 2007