[2007] UKSSCSC CI_3384_2006 (20 December 2007)

CI/3384/2006

DECISION OF THE SOCIAL SECURITY COMMISSIONER
  
1.	I allow the claimant’s appeal to the limited extent of varying the assessment of disablement, although this does not affect the amount of disablement benefit payable.  I set aside the decision of the Bristol appeal tribunal dated 14 June 2006 and I substitute a decision that the claimant’s disablement in respect of the industrial accident she suffered on 15 December 2006 is provisionally assessed at 30% for the period from 21 April 2006 to 20 April 2009 and disablement benefit is payable accordingly.

REASONS

2.	The claimant suffered an industrial accident on 15 December 2002, injuring her left leg and her left shoulder.  She claimed disablement benefit, which was awarded initially on the basis of a provisional assessment of her disablement at 45% from 30 March 2003 to 20 April 2006.  On 20 March 2006, the Secretary of State provisionally assessed disablement at 25% from 21 April 2006 to 12 March 2011, so that the claimant’s award of disablement benefit was superseded and continued at a lower rate.  The new assessment was expressed as being 10% in respect of impaired upper limb function, 10% in respect of the lower limb function and 5% for “interaction”.  The claimant appealed against the new assessment.  On 14 June 2006, the tribunal dismissed her appeal, but it altered the basis of the assessment and shortened the period.  The tribunal recorded detailed findings of fact and then gave its reasons for its decision, the material parts of which are as follows –

“9.	The tribunal considered the documentary evidence and the oral evidence of the appellant.  There was no medical examination as the medical member did not feel this was necessary.  There was no doubt as to the nature of the conditions which were described by the medical examiner; what had to be assessed was the degree of functional disability.

10.	The tribunal accepted that the appellant had sustained an injury to her left shoulder/arm and left leg.  The tribunal noted that at the time of the first assessment of 45% the appellant was still off work, returning to part-time work at the end of the year and full-time work a year after that.  The tribunal considered that that was evidence of a gradual improvement over the period following the first assessment.

11.	The tribunal noted the assessments for the upper limb and lower limb impairment advised by the medical examiner of 10% for each.  The tribunal did not consider that the addition of 5% additional assessment for interaction was correct.  An additional assessment is made in Box B [in Part 8 of Form BI 118A completed by the medical examiner] for the way in which a condition developing after the injury makes the effect of the injury worse.  That was not the case here.  If what was meant was the fact that the use of the walking stick when the leg was bad made the shoulder problems worse, then that should be included in the actual assessment.

12.	The tribunal considered that an assessment of 10% for the upper limb impairment was appropriate.  The examining doctor assessed her as having 75% function.  The appellant was not able to perform some actions necessary to dressing and washing and was unable to perform household activities such as gardening and housework.  She also suffered pins and needles and discomfort and had some problems sleeping.  She was however able to work as a data inputter and drove her automatic car.  The use of a walking stick made her shoulder worse.

13.	The tribunal also considered that 10% was appropriate for the appellant’s leg problems.  She was limited n her walking and was in discomfort; she was not as active as she had been in activities such as cycling, gardening, DIY and housework.  She had to go up and down stairs one at a time.

14.	The tribunal also found that as a result of her physical conditions the appellant was suffering from reactive stress and depression.  She said that she had become irritable and stressed and her doctor had wanted to give her medication which she had declined.  The tribunal considered that an assessment of 5% for her impaired mental state should also be made.

15.	This resulted in an overall assessment of 25%.  The tribunal considered that the award should be for a somewhat shorter period as her mental state might improve or her conditions generally deteriorate and therefore determined that a provisional award until 20 April 2009 was appropriate.”

The claimant now appeals against the tribunal’s decision with my leave.  The Secretary of State opposes the appeal.

3.	The claimant’s first ground of appeal arises from the tribunal’s decision that the medically qualified panel member would not to examine her.  It appears that the tribunal did mention at the hearing that he would not examine her but the claimant had the impression that that was because there was no chaperone, although she pointed out that her husband could act as one.  She says that a medical examination would have clarified the problems she had and, in particular, the reason for the 5% originally awarded in respect of “interaction”.  Her second ground of appeal returns to the “interaction”.  She submits that the tribunal was wrong to remove the 5% because her two injuries did interact as she needed a walking stick due to her leg injury but could not use it as effectively as most people could because of the injury to her shoulder and arm.  She accepts that 5% was an appropriate assessment for that “interaction”.

4.	The Secretary of State originally declined to make a submission on the first of those issues, on the ground that the question of how a tribunal should consider whether or not to examine a claimant and whether the claimant’s views should be obtained were matters of tribunal procedure, policy responsibility for which had been transferred on 1 April 2006 from the Department for Work and Pensions to the Department for Constitutional Affairs (now the Ministry of Justice).  This, as I pointed out in a direction, shows a misunderstanding of the role of the Secretary of State for Work and Pensions in proceedings before Commissioners.  I fully accept that policy responsibility for legislation in respect of tribunals has been transferred from the Secretary of State for Work and Pensions but he remains the respondent when a claimant appeals to a Commissioner in an industrial injuries benefit case and, as a party in the case, is expected to address submissions to the Commissioner on any points of law that arise.  He is perfectly entitled to consult other government departments before making submissions that might have policy implications but as a regular party in proceedings before the tribunals he is also entitled to have his own views and, anyway, I would have thought that the procedural issue that arises in this case is hardly a matter of high policy.

5.	Following my direction, the Secretary of State made a helpful submission.  He correctly points out that, as a matter of law, a tribunal is entitled to examine a claimant in a disablement benefit case (see section 20(3)(a) of the Social Security Act 1998 and regulation 52 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (S.I. 1999/991)) but is not obliged to do so and must decide whether or not an examination is appropriate in each case.  I agree with the Secretary of State that it is not always necessary to carry out a physical clinical examination in order to assess functional loss arising from an industrial injury.

6.	In answer to a more specific question I raised as to whether tribunals should obtain claimants’ views as to the need for a clinical examination, he submits that claimants are not well placed to make submissions on the point because they may not appreciate the difference between an assessment of functional loss and an assessment carried out for the purpose of diagnosis and the planning of therapeutic treatment or understand that much assessment of functional loss is carried out by informal examination.  The implication is, I think, that he does not consider it necessary to obtain a claimant’s views.  However, he does submit that if a claimant specifically requests an examination and the tribunal refuses to perform one, the tribunal should record reasons for the refusal.

7.	In my judgment, since a tribunal should always consider judicially whether there should be a medical examination, it is good practice for a tribunal to state during the course of a hearing that it does not consider an examination to be necessary, if that is the case, and should do so in a way that enables a claimant to make representations on the point (see R(I) 10/62).  However, whether a failure to do so renders a decision erroneous in point of law depends on the circumstances of the case and, in particular, on what representations would have been made had the opportunity been offered.

8.	In the present case, it appears that the tribunal did say that it would not carry out an examination but it is unclear whether the claimant was given a real opportunity to make representations.  However, whatever actually was said, I do not consider that the tribunal’s decision was erroneous in point of law on this issue.  There has been no challenge on this appeal to the tribunal’s findings as to the practical effects of the claimant’s injuries, save as to the “interaction” in respect of which, for reasons I shall explain below, an examination was not required.  The reason for not having an examination that the chairman recorded in paragraph 9 of the statement of reasons for the tribunal’s decision is a good one and whether or not it was mentioned during the hearing is not material as it has not been seriously challenged on this appeal.  The point is that asking the claimant to describe the effects on her life was a much better way of assessing disablement than carrying out a clinical examination.  The reason there has been no challenge to the tribunal’s findings is that it properly adduced detailed evidence from the claimant and accepted that evidence.  In the light of its detailed findings (which I have not thought it necessary to set out in this decision), the tribunal’s assessment of disablement is unimpeachable, except on the issue of “interaction”.

9.	The Secretary of State submits that the tribunal erred in relation to “interaction”, on the ground that the tribunal found that the use of the walking stick made the claimant’s shoulder worse but failed to take that into account in the assessments for either of the injuries, but he submits that the tribunal’s decision is not erroneous in point of law on that ground because adding the 5% back in would merely increase the assessment to 30% which would give rise to the same entitlement to disablement benefit as an assessment of 25%.

10.	The Secretary of State is obviously correct in submitting that the rounding of assessments required by section 103(3)(a) of the Social Security Contributions and Benefits Act 1992 means that an assessment of 25% is treated as an assessment of 30%, but it seems to me that, if the tribunal erred in law in assessing disablement at 25% instead of 30%, is decision should be set aside, because assessments of disablement are capable of being free-standing decisions – not always helpfully in my view – under regulation 25 of the 1999 Regulations and, as the claimant points out, it is important that the correct assessment be recorded as that will form the background against which a further assessment will be made either on an application for supersession or when the period of the current provisional assessment comes to an end.

11.	Although the Secretary of State suggests that he is agreeing with an observation I made when granting leave to appeal, I differ from him as to the reason why the tribunal erred.  It seems to me that the tribunal did have regard to such worsening of the claimant’s shoulder condition as was caused by the use of the stick in assessing her disablement from that condition at 10%.  That seems clear from the last sentence of paragraph 12 of the statement of reasons.

12.	However, in my judgment, the tribunal misunderstood the reason for the medical examiner suggesting an additional 5% in respect of “interaction”, partly because the medical examiner put the assessment in Box B in Part 8 of Form BI 118A, rather than in Box A.  The tribunal was right to regard the use of Box B as inappropriate in this case.

13.	It has long been recognised that, where a person suffers disabilities in more than one part of the body or due to more than one cause, the assessment of the overall disablement requires more than the simple aggregation of the assessments of disability in each part of the body or due to each cause.  To take a simple example, a person who has lost the sight in both eyes is plainly far more than twice as disabled as a person who has lost the sight in one eye.  In the present case, the medical examiner plainly had in mind the point made by the claimant that the functional disability due her leg injury was greater than it would otherwise have been because her shoulder and arm injury made her less able to mitigate its effects by using a walking stick than would normally be the case.  He regarded each injury as meriting a 10% assessment when considered on its own but considered that, together, they gave rise to disablement totalling 25%.  That it is proper to have regard to the effects of “interaction” between different injuries has been recognised by the Court of Appeal in Regina v. Industrial Injuries Commissioner, ex parte Cable [1968] 1 Q.B. 729 (also reported as (R(I) 11/66), in which the conventional term “connection factor” is used, and in Murrell v. Secretary of State for Social Services (reported as an appendix to R(I) 3/84).

14.	The issue normally arises where disablement is due both to the relevant accident and to another cause.  Regulation 11(2) to (5B) of the Social Security (General Benefit) Regulations 1982 (S.I. 1982/1408) makes specific provision for attributing the connection factor to the industrial accident where the other cause is non-industrial but predates the industrial accident (regulation 11(3)), to the industrial accident where the other cause is non-industrial and postdates the industrial accident but only if the assessment in respect of the industrial accident would otherwise be at least 11% (regulation 11(4)) and to the second of two industrial accidents (regulation 11(5)).

15.	Part 8 of Form BI 118A is designed with regulation 11 in mind and perhaps also comments I made in R(I) 1/95 on a previous version of the form.  Box B is designed only for recording the connection factor in a case to which regulation 11(4) applies.  Where the connection factor is attributed to the relevant accident under regulation 11(3) or (5), it is included in the figure recorded in Box A.  The design of Box A reflects the comments of the Chief Commissioner in R(I) 2/74, where he suggested that, in a case falling within what is now regulation 11(3), a claimant should be told the gross assessment of disablement from both causes, the “offset” in respect of the non-industrial cause and the net assessment of disablement, which last figure should include any connection factor.  Of course, as long as any two of those figures are identified, the third can easily be calculated.

16.	What Form BI 118A does not do is require the medical examiner to provide a separate assessment of the connection factor in a case where regulation 11(3) or (5) applies or in a case like the present where there is a connection factor arising out of two injuries both due to the relevant accident (a circumstance I did not have to consider in R(I) 1/95).  A separate assessment is not always necessary but what is necessary is that it be shown that proper consideration has been given to the connection factor.  That can be done by in fact making a separate assessment and identifying the connection factor separately as a third entry in Box A but it will usually be enough to make plain that the connection factor is included in one of the other entries in Box A (which latter course is the effect of including the “offset” figure in a regulation 11(3) or (5) case).  In the present case, the medical examiner took both approaches, recording a separate entry in Part 8 of the form (although wrongly in Box B rather than in Box A) and repeating it in his statement of findings in Part 9 of the form.

17.	Where the tribunal erred is in either ignoring the connection factor altogether or in giving inadequate reasons for its decision.  The claimant had said that she used her stick less than she would like, because it made her shoulder worse.  The tribunal took account of the worsening of the shoulder resulting from occasions when the stick had been used but the statement of reasons makes no specific reference to the claimant’s lack of mobility being worse when the stick was not used.  It is true that the tribunal might have thought that that was adequately covered in the 10% assessment in respect of the leg injury but, if that was its approach, it failed to notice that its 10% assessment was lower than the medical examiner’s assessment which, on an equivalent basis, was 15%.

18.	It is on that narrow ground that I set aside the tribunal’s decision.  As both parties are content that there should be an addition of 5% in respect of the connection factor and as that is also what the medical examiner considered appropriate, I need not refer the case to another tribunal but instead substitute my own decision to that effect.

	(signed on the original)	MARK ROWLAND
		Commissioner
		20 December 2007