Northern Ireland - Social Security and Child Support Commissioners' Decisions

MB-v-Department for Social Development (II) [2010] NICom 133

Decision No:  C1/10-11(II)

 

 

 

 

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

 

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

 

 

DISABLEMENT BENEFIT

 

 

Appeal to a Social Security Commissioner

on a question of law from a Tribunal's decision

dated 27 August 2009

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1.    In this case the claimant appeals against the decision of the Tribunal which unanimously decided that the claimant suffered a loss of faculty as a result of an industrial accident and assessed the disability resulting at 25% from 15 October 2005 to 1 September 2006, 15% from 2 September 2006 until 26 August 2009 and 10% from 27 August 2009 until 25 November 2011.  This was a final assessment.

 

2.    The claimant submitted a claim for industrial injuries disablement benefit on 16 January 2008 in respect of an accident he claimed occurred on 2 July 2005.  The claim was initially disallowed on the basis that the employers had no record of an accident and it could not be established that there was an event which could be identified as an accident.  However, following further investigations, the decision was revised and it was accepted that the accident of 2 July 2005 was an industrial accident.  On 25 November 2008 the claimant was examined by a Departmental medical officer who assessed his disablement at 25% from 15 October 2005 to 1 September 2006 and at 15% degree of disablement from 2 September to 25 November 2011.  This was a provisional assessment.  Accordingly, on 5 December 2008 the claimant was awarded industrial injuries disablement benefit at 15% from 2 September 2006 to 25 November 2011.  He was not entitled to disablement pension for the period 15 October 2005 to 1 September 2006 as a claim for this period was not within the prescribed time limit for claiming, which is three months.  On 24 March 2009 a letter of appeal and supporting medical evidence were received.  However, the assessment, although looked at again, was not changed.  The claimant then appealed to a tribunal.

 

3.    The tribunal on 27 August 2009 came to the decision as set out in the first paragraph herein and gave the following reasons for its decision: -

 

“The history of the case is as set out in the departmental submissions.  (The claimant) appeals to the tribunal against the decision of 5.12.2008, on the basis that the assessment of 15% (awarded for the period 2.9.2006 to 25.11.2011) is too low.  He does not dispute the award of 25% for the period 15.10.2005 to 1.9.2006 and the tribunal need not consider this aspect of the appeal.

 

(The claimant) has indicated that his English is inadequate for the purposes of the appeal and all questions from and evidence to the tribunal are via the services of his interpreter, Ms B…...  (The claimant) who is represented by his solicitor, Mr Kelly has been made aware that the powers of the tribunal on appeal include reducing, or rending, as well as increasing any assessment of disablement.  He has also been offered but declined, following consultation with his solicitor, the opportunity to adjourn the appeal.

 

It is common ground between the parties and not in dispute, that (the claimant) suffered musculo skeletal injury in an industrial accident on 2.7.2005 when he felt pain in his back  on lifting a washing machine and fell to the floor.  Subsequent investigation (MRI scan) revealed disc protrusion L5/S1 and right sided L4/5 prolapse.  Mr M….., Specialist Registrar to Mr E…., Consultant Orthopaedic Surgeon, commented on 30.1.2006, in relation to the MRI Scan, that the large L4/5 disc prolapse was causing pressure on the L5 nerve root and thecal sac, while the moderate L5/S1 disc prolapse did not appear to be causing any significant nerve root compression.  (The claimant) was referred for urgent surgical disectomy at Musgrave Park Hospital, but chose, because of delay in carrying this out, to go to Slovakia for an operation instead, where we believe he had an L4/5 fusion carried out in June 2006.  (This assumption is made on the basis of findings on clinical examination today – none of the surgical reports from Slovakia have, to our knowledge been translated).

 

The case put by and on behalf of (the claimant), is that the 15% assessment in respect of curtailed mobility resulting from impaired spinal function subsequent to the musculo skeletal injury to the spine, is inadequate and does not fully represent the significant loss of faculty relating to the industrial accident.  (The claimant) tells us that he now has pain in his back and down his right leg into his ankle and needs help with many activities of daily life.  He says he cannot cook, shop or clean (the house), needs help to shower and that his ankle sometimes can’t carry his weight.  He says he is mostly confined to the house because of his condition, only leaving it for appointments and even then he is often unable to attend these.  He tells that his sleep is disturbed and that he has to sleep downstairs.

 

He acknowledges that his condition has improved since the accident.

 

Perusal of General Practitioner records in scheduled documentation shows that (the claimant) is prescribed co-codamol (30/500) tablets for pain relief and has had no further orthopaedic attendances since his operation in Slovakia.  He has asthma which is treated with inhalers and medication, but which is stated to disturb his sleep, cause daytime symptoms and limit his walking on stairs and hills.  The records also reveal (the claimant) to be a frequent attender with his General Practitioner – between October 2006 and February 2009 he attended the surgery on some 23 occasions.  Most of those attendances are in relation to his asthma – on only a few occasions (6.10.2006, 6.11.2006, 29.1.2007, 28.3.2007 and 5.10.2007) did (the claimant) mention complaints of pain or difficulty relating to his back condition or seek treatment for it.  It was put to us, or (the claimant’s) behalf today, that there had been “voluminous” attendances with his General Practitioner on this matter, and when requested to identify any such recent attendances, this was not forthcoming and the tribunal was told instead that the General Practitioner had advised (the claimant) there was “nothing further he could do”.

 

On clinical examination today, a number of features were noted which we felt to be inconsistent with the severity and chronicity of the condition as described by (the claimant), such as his appearance (very well muscled) both in upper and lower limbs with no muscle wasting and his movement (normal gait and heel to toe walking with no guarding against pain, moved onto couch and sat without problems).  We also considered (the claimant) to be actively magnifying symptoms during examination – his straight leg raising was actively resisted at 25° right and 20° left – this contrasts specifically with his observed ease in sitting on the couch.  He also described an area of pain distribution which was, in our opinion, non anatomical in origin.

 

We are satisfied that the above medical evidence provides us with a realistic impression of (the claimant’s) condition from September 2006 to the present time and this impression is, contrary to (the claimant’s) contentions, one of continuing improvement.  The clear and obvious inference to be drawn from the record of General Practitioner attendances, is not, as asserted on behalf of (the claimant), that there is nothing more the General Practitioner can do for him but rather there is increasingly less need for medical input.  This is confirmed by the absence of any ongoing specialist referral to either an orthopaedic or pain relief clinic and the provision of analgesia appropriate for mild to moderate pain relief only.

 

When this medical evidence is set against the background of the clinical examination findings noted by the medical advisor 25.11.2008 and our own findings and examination today, a clear picture of continuing and ongoing improvement emerges to such an extent that we consider any current level of disablement to be of a very minor nature indeed and very adequately reflected in an award of 10 per cent in respect of curtailed mobility resulting from reduced and painful spinal movements.  It is, in our opinion, reasonable to anticipate further improvement and an eventual resolution of symptoms.”

 

4.    The claimant sought leave to appeal to a Commissioner.  Such leave was granted by the legally qualified member on 4 December 2009 on the following point of law:

 

“Whether tribunal’s conclusions were in error of law.”

 

       It would have been helpful if the legally qualified panel member had been more specific in setting out the relevant point of law.

 

5.    A hearing of the appeal took place on 4 August 2010.  The claimant, who was present, was represented by Mr Patrick Savage, Barrister at Law, instructed by Mr Joseph Kelly of Donaghy Carey, Solicitors.  The Department was represented by Mr John Kirk of Decision Making Services.  The claimant’s brother attended to translate and interpret for the benefit of the claimant.

 

6.    The following points were made on behalf of the claimant:

 

(i)              The tribunal erred in its finding that the claimant’s paucity of recent medical attendances was due to an “increasingly lessening need for medical input.”

 

(ii)             The tribunal should have adjourned to seek evidence from the claimant’s general practitioner (GP) on this point.

 

(iii)            The claimant was not well muscled and this assertion should not have formed part of the tribunal’s deliberations.

 

(iv)           The claimant denies that he magnified symptoms and asserts that the tribunal has not provided adequate reasons for their contention that this was the case.

 

(v)             The allegation that the claimant magnified symptoms should have been put to him at the tribunal.

 

(vi)           The tribunal failed to provide sufficient rational reasons for their award of 10% disablement.

 

(vii)          The tribunal failed to show in evidence justification for their contention that the claimant’s symptoms would eventually resolve.

 

(viii)         The claimant’s failure to understand the detail of the proceedings due to inadequate translation was a breach of natural justice.

 

7.    Mr Kirk submitted that the appeal raised the following issues:

 

(i)              The tribunal had no or insufficient evidence to hold that the claimant had not continued to attend his GP due to the fact that his condition had improved.

 

(ii)             Although an interpreter was present, the claimant did not understand the context or contents of the questions asked.

 

(iii)            The tribunal had no or insufficient evidence to conclude that the claimant was well muscled.

 

(iv)           The tribunal erred in finding that the claimant magnified his symptoms.

 

 

       In relation to these issues Mr Kirk submitted as follows:

 

“Issue 1

 

In the reasons for decision the tribunal has clearly explained how it concluded that (the claimant) had not continued to attend his General Practitioner due to an improvement in his condition.  The tribunal noted that the majority of (the claimant’s) attendances at the General Practitioner’s were in relation to his asthma rather than back pain.  The tribunal noted that no specialist orthopaedic or pain clinic referral had been made and that his level of medication was only appropriate to mild back pain.

 

Issue 2

 

The reasons for decision show that the tribunal was aware of (the claimant’s) language difficulties and that it ensured that all of its questions went through the interpreter, Ms B…..  Ms B…. attended the hearing at (the claimant’s) request and the onus was upon both (the claimant) and his legal representative, Mr Kelly, to ascertain that she fully understood the questions that were asked and translated accurately.  Furthermore the questions asked by the tribunal appear to have been straightforward therefore there was little room for confusion or misunderstanding.  If there was any difficulty or misunderstanding of questions then I would have expected this to have been raised at the hearing.  In view of this there has been no breach of the rules of natural justice.

 

Issue 3

 

The tribunal conducted a medical examination and on that basis it noted that he was very well muscled.  As the accident occurred in 2005 and the examination took place over 4 years later it is not unreasonable to expect some degree of muscle wasting would have occurred in that period.  Furthermore I would point out that the issue for the tribunal was not (the claimant’s) physique but rather the loss of faculty and degree of disablement (the claimant) had suffered due to his accident.

 

Issue 4

 

The tribunal’s conclusions on this issue were based upon the observations of the medical members during their examination of (the claimant).  The tribunal noted that (the claimant’s) movement and walking was inconsistent with his contended back pain and that he resisted straight leg raising.  In addition the tribunal noted that the level of his GP input and lack of specialist referral were indicative of an improvement in condition.”

 

8.    During the hearing of the appeal before me it became clear that the real and significant issue in the case concerns the propriety of the tribunal drawing conclusions from the medical examination without giving the claimant an opportunity for comment.

 

9.    Mr Kirk submitted that, in light of the Great Britain Commissioners’ decisions R(I)29/61(T) and R(I)2/64, there is no general rule that a claimant should be re-admitted to a tribunal after a medical examination.

 

10.   R(I)29/61(T) is a decision of a Tribunal of Commissioners.  In that case a claimant complained that he had not been given a proper opportunity of presenting his case to the medical appeal tribunal and that the Minister’s representative, having stated his case, one of the medical members of the tribunal having asked him (the claimant) a question, and the medical member of the tribunal having examined him in the examination room, he had been told to go.  At no state of the proceedings had he been asked whether there was anything he wanted to say.  It was held by the Commissioners that an irregularity in the proceedings before a medical appeal tribunal amounting to a denial of justice renders the tribunal’s decision erroneous in point of law; and, further, the question whether a claimant has had an adequate hearing cannot be answered by reference to any set formula, but that a claimant should be invited expressly to say anything he might wish to say and should be brought back into the hearing room after the examination in order to make sure whether he has anything further to say arising out of the examination.  Where at a medical appeal tribunal hearing some new point arises (as it did in that case) which is not previously known to have been in issue, it is desirable, if not always essential, that the claimant should be informed so that he can, if he thinks fit, give or produce evidence on the point.  It was held that in that case the decision of the medical appeal tribunal was erroneous in point of law and the decision of the medical appeal tribunal was therefore set aside.

 

11.   R(I)2/64 is a decision of a Commissioner.  In that case a claimant appealed to the Commissioner from the decision of a medical appeal tribunal on the ground that he had not had a fair hearing because he had not been permitted to complete his address to the tribunal; that he had not been admitted to the tribunal after medical examination; that he had not been questioned as to the accident or the present condition of his injury, and that the case had been decided without full knowledge of facts which the claimant was competent to give.  The medical appeal tribunal were invited to give their recollection of the matter and, after an oral hearing before the Commissioner, it was held that the claimant had been invited to and had addressed the tribunal and had been questioned on the salient point in his case.  His failure to present his case to his own satisfaction did not mean that he had not had a fair hearing.  However, there is no general rule that a claimant must be re-admitted before the tribunal after examination and no reason for it to have been necessary in this case.

 

12.   Mr Kirk also relied on the decision of Mrs Commissioner Brown in C24/03-04(DLA) where she stated at paragraph 13, the following:

 

“13.    In general terms and because the matter appears to arise from the terms of Mr Hatton’s submission I would state that the Tribunal is not obliged in every case to put forward to the claimant its possible conclusions from the evidence and enable the claimant to dispute those conclusions.  The Tribunal will not err in law if it reaches conclusions which are sustainable on the evidence.  Mrs Gunning is quite correct in that respect.  The hearing is the claimant’s chance to put his case.  He cannot expect a two stage process of the Tribunal hearing the case, reaching provisional conclusions on the evidence and then putting those conclusions forward to be rebutted by more evidence. …”

 

       Mr Kirk submitted that this decision was supportive of the argument that claimants and the Department do not have the right to make comments regarding every piece of medical evidence – otherwise cases would end up with sterile arguments and ineffective protracted hearings.

 

13.   Mr Savage made the following submissions relevant to the issue of the propriety of the tribunal drawing conclusions from the medical examination without the claimant having an opportunity to comment on matters arising out of the medical examination:

 

“(i)      The failure to allow the claimant an opportunity to comment following the examination is an error in law and a procedural unfairness which breached the principles of natural justice.  Further, the failure to put the allegation of magnification of symptoms to the appellant was an additional legal error on the Tribunal’s behalf.

 

(ii)      In support he relied on C51/03-04(DLA), a decision of mine, in which there was an appeal against the finding of a Tribunal that a claimant’s arm was not paralysed.  The initial Appeal Tribunal stated that there was “certainly nothing to suggest that he has a paralysed left arm.”  It was later shown that this was entirely erroneous and the claimant’s left arm was, in fact, badly paralysed.

 

I held that, prior to finding that the claimant did not suffer from a paralysis in his left arm, the Tribunal was under an obligation to allow the claimant to give an account.  At paragraph 14, the following was stated:

 

          “In the circumstances I feel impelled to conclude that the Tribunal in the present case erred in its inquisitorial function and acted in the breach of the rules of natural justice by not, at the very least, putting the issue of the possibility that the left arm was not paralysed to the claimant”.

 

Accordingly the issues of muscle wasting and symptom magnification should have been put to the claimant.

 

(iii)      He also relied on the decision of Mrs Commissioner Parker in Great Britain decision CSDLA/288/2005 who stated at paragraph 5 that:

 

          “A claimant must be guaranteed a fair hearing, so that starting over again is inevitable, even if there is no irrational assessment of the evidence and the tribunal’s determination is adequately explained.  Moreover, there is usually no excuse not to put observations to a party, as it can rarely be the case that a perceived inconsistency between a claimant’s evidence and what is being observed does not strike any or all of the tribunal members at the time, so that it is not apparent why it is raised for the first time at the deliberations.”

 

(iv)      Mrs Commissioner Parker drew support for this contention from a prior decision of Mrs Commissioner Jupp in Great Britain decision CIB/3397/2004 who stated at paragraph 9:

 

          “At the outset of the hearing I confirmed that I found nothing controversial in the submissions of both parties in their skeleton arguments that the tribunal erred both in failing to provide adequate reasons for not awarding points to the claimant on the standing descriptor, for which she had contended, and in not putting it to the claimant that the tribunal’s observations of her ability to sit during the tribunal hearing brought into question her contention for the benefit of the sitting descriptor.  On those two points alone therefore I proposed to set aside the decision and remit the case for determination by a differently constituted tribunal, as I have done.”

 

(v)             He submitted that these cases provide clear authority for the proposition that matters of real controversy which arise in Tribunals ought to be put to claimants so that a Tribunal can make an estimation of the adequacy of the claimant’s response.  Without allowing the claimant to give such an account, the Tribunal has no basis on which to make that assessment.

 

(vi)           He accepted that this view was challenged by Mr Commissioner May QC in Great Britain decision CSDLA/463/2007 in which he did not accept the authority of Mrs Commissioner Parker on this point, stating at paragraph 11 that;

 

          “The tribunal’s observations are not of the nature of giving evidence to themselves but are part of the judicial process in assessing the evidence which is put before them.  I cannot, in these circumstances, conceive that a tribunal is bound to put to a claimant in an appeal before them their thoughts in that process.”

 

(vii)          He submitted that CSDLA/463/2007 was, in fact, wrongly decided and that it is the approach of Mrs Commissioner Jupp and Mrs Commissioner Parker which should be preferred.

 

(viii)         He also submitted that CSDLA/463/2007 differs in significant aspects from the matter currently under appeal.  Mr Commissioner’s May’s judgment was in relation to a case where the Tribunal’s finding of bad faith on the part of the claimant was substantially based on the fact that she had answered a mobile phone in full view of the Tribunal and, in doing so, displayed a range of hand movements which entirely contradicted her earlier description of her hand injuries.  However, the circumstances in the present case can be distinguished in a number of aspects.  In the present appeal, the alleged magnification of symptoms arise from a medical examination.  Importantly that was an examination at which the legally qualified member was not present.  Where an assertion of bad faith arises from an examination undertaken by only part of the Tribunal, it is then even more vital that the appellant be allowed an opportunity give their account when the full tribunal has not had first hand knowledge of circumstances of the examination or the actions of the appellant which purport to justify the assertion of exaggeration.  In CSDLA/463/2007, the full tribunal had the benefit of observing the behaviour in question, unlike the present case.

 

(ix)           In Great Britain decision CIB/2368/2004 Mr Commissioner Rowland found that the failure of a Tribunal to put to the claimant their suspicions that a medical document had been forged was a breach of natural justice.

 

(x)             Also he relied on a judgment of Gillen J in A & Ors, Re Application for Judicial Review [2007] NIQB 30.  In application for witness anonymity, Gillen J found that it was improper for witnesses to a tribunal to be denied access to the documentation on which their application for anonymity was refused and stated at paragraph 40 as follows:

 

          “I consider it is a fundamental principle of fairness that a person who may be adversely affected by the decision should have the opportunity to make representations on his own behalf concerning material which is commanding the attention of the decision maker.  Otherwise he may be deprived of the opportunity to make effective representations in the decision-making process.

 

(xi)           He contended that by withholding from the claimant the view that he was magnifying symptoms and had not suffered muscle wasting, the claimant was similarly deprived of making the effective representations in the decision-making process to which he was entitled.

 

(xii)          In any event he submitted that the claimant’s case on this point is not limited to the submission that the relevant allegations should have been put to him.  The appellant further, and in the alternative, contends that the very failure to allow him to make any representations to the Tribunal following the medical examination was an error in law.

 

(xiii)         He relied on a Great Britain decision, R(I) 29/61(T), a decision of a Tribunal of Commissioners (already dealt with at some length at paragraph 10 herein) in which it held it was held that the claimant should have been brought back into the hearing room after the medical examination to make any further necessary comment.  At paragraph 17 the Tribunal of Commissioners stated as follows:

 

          “In our judgment the claimant should have been invited expressly to say anything that he might wish to say, and he should have been brought back into the hearing room after the examination in order to make sure whether he had anything further to say arising out of the examination.”

 

(xiv)        He submitted that the claimant contends that his fundamental right to make any relevant submissions following medical examination was disregarded, even if he was not to be guided as to the Tribunal’s suspicions.  That claimant was not brought back into the hearing room is, in itself, a procedural irregularity and a breach of natural justice which would render this Appeal Tribunal’s decision an error in law.”

 

14.   The following question arises: What responsibility or duty does a tribunal have when significant findings are made by the medical members of the tribunal in an examination of a claimant?  In my view, the basic principle must be that if a tribunal raises a new issue of significance, fairness must require that the parties to the proceedings have the opportunity to comment on it.  This conclusion is consistent with the authorities cited by Mr Savage, especially the general principle set out by Gillen J in A & Ors, Re Application for Judicial Review [2007] NIQB30 at paragraph 40, set out at paragraph 13(x) herein.

 

15.   It must be remembered that the present practice is for the medical members to carry out an examination with the consent, of course, of the claimant.  The chairman, who is the legally qualified panel member, must be informed by his colleagues of any significant findings after the examination, otherwise there is no point in the examination.  If any such findings raise issues on which the claimant has not had an opportunity to make comments, what action should the tribunal take?  The case of Evans and others v Secretary of State for Social Security, a case in the English Court of Appeal, reported at R(I)5/94, gives authority for the proposition that, where views are formed by a tribunal after a medical examination, “fairness points to the need for an adjournment so that, where possible, the tribunal’s provisional view can be brought to the attention of the claimant’s own advisers”.  In addition Park J, when dealing with a Pensions Appeal Tribunal case (Butterfield v Secretary of State for Defence [2002] EWHC 2247 (Admin)), a case before the nominated judge, also emphasised that, if in relation to a medical issue, a medical member of a tribunal takes on board a medical point which is new and “might in itself be decisive”, fairness requires that such a point be explained to the appellant or to the appellant’s representative and that the appellant should be given a realistic opportunity to consider it.  Park J also stated that “in some cases, though I hope not many, this may require the offer of an adjournment, however inconvenient and irksome that may be.”

 

16.   It seems to me that it will be reasonable in most cases to expect the parties or the representatives to comment at the hearing on a point raised by the tribunal without having to adjourn the case.  However, each case has to be dealt with in its own special circumstances.  Nevertheless, when a new issue arises out of information gained by the medical tribunal members at a medical examination, at the very least the claimant or his advisers should be able to comment or explain to the full tribunal why any provisional finding made by the tribunal, as a result of the new issue arising, is not as significant as first thought.

 

17.   I take the view that there need not always be an adjournment but the tribunal’s provisional view should be put to a claimant and the claimant should then expressly be offered an adjournment if the claimant can persuade the tribunal that the adjournment might eventually result in the tribunal taking a different view to the provisional view already taken.

 

18.   It is important to realise, however, that in Great Britain decision R(DLA)8/06 Mr Commissioner Jacobs held that there was not always a duty to put observations to a party where for example the observations merely confirm a view that the tribunal would have formed anyway.  In such circumstances the observations do not raise a new issue.  However, as Mr Commissioner Jacobs said at paragraph 19 of R(DLA)8/06:

 

“… if an observation is one of the factors taken into account in reaching a conclusion, any failure in the tribunal’s inquisitorial duty or violation of the right to a fair hearing will mean that the decision is wrong in law.”

 

19.   The tribunal in its reasons found that the claimant was “very well muscled” in his upper and lower limbs and also found that he had “no muscle wasting”.  He also “moved onto (the examination) couch and sat without problems”.  He was also noted “to be actively magnifying his symptoms during examination”.  These findings mentioned in the tribunal’s reasons clearly came from the medical member of the tribunal.

 

20.   As stated at paragraph 13(ii) herein, Mr Savage has submitted that the issues of muscle wasting and symptom magnification ought to have been put to the claimant by the full tribunal to enable him to deal with the issue.  In my view Mr Savage is correct in his contention.  This is not a case where a claimant is complaining because he failed to present his case to his own satisfaction.  More accurately, the claimant was prevented from dealing with a point which had become a salient issue in the case.  To give the claimant such an opportunity would not, in my view, result in ‘a sterile’ argument, as feared by Mr Kirk.  I therefore conclude that the tribunal has erred in law by not specifically putting the issues of muscle wasting and symptom magnification to the claimant.

 

21.   In my view the difficulties that arose in the present case could be obviated by taking the steps set out below which could be described as “best practice”.  I emphasise that this is the best practice and is not the only practice, so that a tribunal is not necessarily at fault if this procedure is not followed, as particular factors and circumstances arise in every case.  However, the recommended approach will help to ensure a fair hearing for both claimants and the Department.

 

22.   At the outset two general but significant aspects of the conduct of medical examinations, as part of appeal proceedings in appeals involving industrial injuries disablement benefit, require to be appreciated and understood.  Firstly, while regulation 52 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, permits the carrying out of a physical examination, it is important to note that a medical examination may not be required in every appeal relating to industrial injuries disablement benefit.  The appeal tribunal may determine, at the outset of the appeal tribunal hearing, and on the advice of the medically qualified panel member(s), that there is sufficient evidence, including medical evidence, to enable it to determine the appeal.  Nonetheless, it may become apparent, during the course of the oral hearing itself, that a medial examination is, in fact, required.  Secondly, the carrying out of any medical examination is subject to the consent of the claimant.

 

23.   The possibility of the carrying out of an examination should be explained to the claimant at the outset of the appeal tribunal hearing, as part of the general explanation of the appeal tribunal’s procedures.  The chairman, who is the legally qualified panel member, should, of course, explain that any examination will be subject to the consent of the claimant, and will be carried out by the medically qualified panel member(s) alone, and that the chairman will take no part in any such examination.  At this stage, the consent, or otherwise, of the claimant to the carrying out of an examination may be determined.  Determining whether the claimant does consent at this early stage in the appeal tribunal proceedings, may be beneficial in cases where the appeal tribunal has decided that an examination is required.

 

24.   At or towards the end of the hearing, the question of a physical examination should be revisited by the chairman.  Where such an examination is still required, the chairman should repeat the explanation given at the outset of the appeal tribunal hearing, and if still in issue, obtain the consent of the claimant to the examination.  The chairman should also explain to the claimant that he will be given an opportunity to address the full tribunal on any issues arising out of the medical examination.  The emphasis should be on issues arising out of the medical examination and the claimant should be informed that the appeal tribunal will not re-visit legal, factual or evidential issues already addressed.  The claimant should also be informed that the tribunal will tell him if it considers that any issues have arisen as a result of the examination, and will invite further submissions from him on those issues.

 

25.   In either circumstance the claimant will be entitled to return to the hearing room to make any relevant point or deal with any relevant questions, and the claimant should be informed of that fact.  It is appropriate that the chairman, prior to the commencement of the medical examination, should inform the claimant that if he wishes to be recalled, because there are issues arising from the medical examination which he (the claimant) wishes to be addressed, the claimant should alert the clerk to the appeal tribunal to that fact.  Where, following the completion of the medical examination, the medically qualified panel member(s) alert the chairman to any issues which have arisen from the medical examination and which require to be addressed with the claimant, the chairman, on behalf of the tribunal, should recall the claimant for that purpose.

 

26.   The accepted practice, as I understand it, is that the chairman accepts the clinical findings on medical examination made by the medical members and incorporates the findings as findings of the tribunal.  The significance of those clinical findings and, their relevance to the issues arising in the appeal, form part of the appeal tribunal’s evidential assessment and reasoning.  It must be remembered, however, that medical members should not take evidence during the examination that ought to be dealt with before the full tribunal.  If the medical members consider that questions outside the scope of a medical examination ought to be asked, they should arrange through the chairman for the appellant/claimant to be recalled to deal with such matters before the full tribunal.

 

27.   It is important to remember that if, on appeal, a claimant does not indicate that the opportunity to make comments would have led to the claimant making a contribution that might have made a difference to the outcome of the case, the claimant will not have suffered any unfairness, as procedural irregularities do not amount to errors of law unless they result in unfairness or injustice – see Great Britain decisions CSDLA/463/2007, R(DLA) 3/08 and Rowland and White: Administration, Adjudication and the European Dimension, Social Security Legislation Volume III, at paragraph 5.10.

 

28.   A collateral issue arose during the oral hearing, namely the correctness (or otherwise) of the tribunal making a fixed final assessment of 10% disablement from 27 August 2009 to 25 November 2011.  However, if the assessment of 10% had been correct, the provisions of Schedule 6 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 governing the method of assessment and, in particular, paragraphs 6 and 7, require that an assessment of less than 14% (as in the award made by the tribunal) shall be a final assessment.  Therefore this matter is no longer a live issue in the present case.

 

29.   Accordingly for the reasons set out at paragraphs 14 to 20, I allow the appeal, set aside the decision of the tribunal and refer the case back to a differently constituted tribunal for rehearing and re-determination.

 

30.   However, the success of this appeal to a Commissioner should not be taken as an indication that the claimant’s appeal to the tribunal is ultimately going to be successful.

 

 

(signed):  J A H Martin QC

 

Chief Commissioner

 

 

 

15 December 2010