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[1990] UKSSCSC CI_283_1989 (27 June 1990)

R(I) 2/91

Mr. D. G. Rice CI/283/1989

27.6.90

Natural justice – appeal against assessment of disablement and formal reference of diagnosis question – whether claimant should be warned that tribunal minded to determine diagnosis question adversely to him

The claimant's disablement was assessed at 7% by a Medical Board in January 1988. The claimant appealed against this assessment as too low, and the Secretary of State requested the adjudication officer to refer the case to a Medical Appeal Tribunal. The Secretary of State's submission to the MAT was that the claimant had suffered from prescribed disease A11 since 1972. The MAT decided that he had never suffered from the disease.

Held that:

the MAT were entitled to decide both the diagnostic and the disablement questions. The claimant had warning that both questions were at issue;

however, the claimant had been encouraged in the view that his diagnosis was not at risk as the Secretary of State had accepted that he suffered from the prescribed disease;

the MAT should have told the claimant they did not consider he suffered from the disease and specifically asked him for submissions on the diagnostic question, granting an adjournment if necessary;

in these circumstances, failure to allow the claimant to deal directly with the contention that he had never suffered from the disease amounted to a denial of natural justice, and accordingly the MAT's decision was erroneous in law.

DECISION OF THE SOCIAL SECURITY COMMISSIONER

For the reasons hereinafter appearing, the decision of the medical appeal tribunal ("MAT") given on 11 October 1988 is erroneous in point of law, and accordingly this appeal succeeds.

On 23 May 1987 the claimant, formerly employed as a tanner, claimed disablement benefit in respect of prescribed disease A11 (vibration white finger). The history of that claim is set out in the written submissions of the Secretary of State dated 26 October 1989, and there is no merit in my repeating that history here. Suffice it to say that the claimant contends that the decision of the MAT of 11 October 1988, not confirming the decisions of the medical board on the diagnosis and disablement questions, but deciding that the claimant was not suffering from prescribed disease A11 or from a sequela thereof, and had not so suffered since 1 April 1985, was in the circumstances erroneous in point of law.

I directed an oral hearing. At that hearing the claimant, who was not present, was represented by Mr. Edward Salmon, an advice worker, whilst the Secretary of State appeared by Miss A. Majekodunmi of the Solicitor's Office of the Departments of Health and Social Security. I am indebted to both of them for their submissions.

Miss Majekodunmi joined forces with Mr. Salmon in supporting the appeal. She contended that the reason why the claimant had appealed to the MAT against the decisions of the adjudicating medical authority was because of his dissatisfaction with the assessment of his disablement which was 70% from 1 April 1985 with disablement of at least 10% continuing for life. The claimant had expected that the only issue which was for determination by the MAT was whether that assessment should be upheld or varied. He never had it in contemplation that the tribunal might find that he was not suffering from prescribed disease A11 in the first place, and accordingly he had never directed his evidence and submissions to this issue. In other words, he had been taken by surprise, and the interests of natural justice required the matter to be reheard, when the claimant could properly deal with the diagnosis question. Miss Majekodunmi further contended that the claimant was encouraged in the course he took by the concession made by the Secretary of State that he was not challenging the diagnostic decision, and was only concerned with the extent of the disablement. These contentions were, of course, endorsed by Mr. Salmon.

Miss Majekodunmi cited in support of her argument the judgment of Lord Denning MR in R v. Deputy Industrial Injuries Commissioner, Ex parte Thomas Howarth, (printed as an appendix to R(I) 14/68):

"Fourth: Natural justice. This point was not argued before the Divisional Court or before the Commissioner. But it leaps to the eye. The only point which the Minister referred to the tribunal was whether the Medical Board's assessment of 20% was too high. But the tribunal gave their decision on another point altogether. They held that there ought not to be any award at all. It seems to me that if a new point of such a kind is to be taken, it should be drawn to the man's attention so that he can deal with it. It is elementary that a decision should not be given against a man unless the case against him - by which I mean the substance of the case - has been brought to his attention so that he has had a fair opportunity of dealing with it. I know that the procedure before the tribunal should be, and is, informal but, however informal, I think that if a new point is to be taken against a man, he ought to have an opportunity of dealing with it. I do not think the Court should be deterred from so holding by anything that was said in Hubble's Case ...1958 2 QB 228) at page 241. That was another surprising case. A man had been awarded 5%. He complained that that was not high enough. The case went to the tribunal. They knocked his claim out altogether. The Divisional Court there considered only the statutory provisions. They did not consider the point of natural justice. It was not taken. If it had been taken, I should be inclined to say, as I would have been inclined in the present case, that the decision could not stand. But as this point was not pursued before the Commissioner or before the Divisional Court, I do not think it would be right to rest our decision upon it."

In my judgment, Miss Majekodunmi's submission is an oversimplification of the matter. This was, clearly, not a case where the claimant received no warning that, by virtue of the appeal, the diagnosis question, as well as the extent of the disablement, was at issue. He was specifically so warned, and the observations of Lord Denning MR would appear to be directed to the case where there was no such warning. In the Secretary of State's observations dated 13 July 1988 the following warning is to be found:

"[The claimant] has appealed against the decision on the disablement aspect. The diagnosis question, which the Secretary of State does not dispute, is referred in order that the tribunal can consider the case as a whole.

The tribunal can reach their own conclusions on the whole of the case before them. They can confirm the decision of the Adjudicating Medical Authority if they are satisfied that it is correct, or they can change it in whatever way they are satisfied is correct in the light of the evidence and their own expert medical judgment (Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1980, Regulation 30).

The Secretary of State submits that [the claimant] did suffer from PD A11 from 28 January 1972. If the tribunal decide that he has so suffered they are asked to go on to determine the disablement question as outlined in the separate observations by the Secretary of State."

In other words, the claimant was warned that the matter was at large, that the tribunal had to be satisfied that the claimant was in fact suffering from prescribed disease
A11, and if they were, but only if they were, they were required to determine the extent of the disablement. The claimant was given encouragement, in that the Secretary of State was not himself intending to challenge the Adjudicating Medical Authority's view that the claimant was in fact suffering from vibration white finger, but it was still made clear that the diagnosis question remained open, and indeed had specifically to be considered before the tribunal were at liberty to consider the disablement question.

Now, it could be argued that, in the light of the warning clearly contained in the Secretary of State's observations, the claimant acted at his peril in failing to direct his evidence and submissions to the diagnostic question. He was not entitled to assume that, merely because the Secretary of State was not minded to challenge the view that the claimant suffered from prescribed disease A11, this was something to which he need not direct his evidence and observations. A person who appeals to the MAT puts the diagnostic as well as the disablement question at issue and he is clearly warned that such is the case. As Miss Majekodunmi supported the appeal, I have not had the benefit of argument in support of the alternative view set out above.

I find the matter one of extreme difficulty. On the face of it, if a claimant is warned specifically that the diagnostic question is in issue, and if he is specifically told that the tribunal will only go on to determine the disablement question, if they are satisfied that the claimant has, from the relevant time, suffered from prescribed disease A11, it is difficult to see why he should be entitled to complain if he fails properly to present his case on this issue, and the matter goes against him. Moreover, he should not presume, by virtue of the fact that the Secretary of State is not minded to challenge the diagnostic question, that the matter will necessarily be decided in his favour. Against this, however, it could be said that most claimants are not over-sophisticated, and that when in a particular case the appeal is really against the alleged inadequacy of the assessment, it would perhaps not be surprising if the claimant directed all his evidence and observations to this issue rather than the diagnostic question, particularly where, as in this case, the Secretary of State was not challenging the Adjudicating Medical Authority's decision on the latter issue.

On balance, I think, albeit with considerable hesitation, that it would be fairer all round, where a tribunal is minded to overturn the existing award on the basis that the claimant does not suffer from the prescribed disease in the first place, if they indicated their thoughts to the claimant, and invited him to make direct submissions on this issue, and, if need be, allowed him an adjournment so to do. This way the diagnostic question would still have to be resolved before there could be any question of an award of disablement benefit, but the claimant would not feel that he had been taken by surprise. He would unequivocally have been given the opportunity of dealing with the diagnostic question.

In the present case, the claimant was not invited specifically to meet the possibility that the MAT might refuse to accept that he was suffering from prescribed disease A11 in the first place, and in those circumstances, for the reasons given above, I consider that the MAT's decision should be regarded as erroneous in point of law. I therefore set it aside.

However, before leaving this matter, I should refer to a second ground on which Miss Majekodunmi relied in support of the appeal. She contended that the tribunal erred in point of law in failing to explain why the claimant was not suffering from prescribed disease A11. The tribunal made the following findings:

"Contrary to the findings of the Medical Board and Dr. Hindson, the claimant gives no history of blanching or Raynaud's type phenomenon. History of painful knuckles is typical. No claim history of work induced blanching and numbness of the fingers.

In our view the claimant does not suffer from A11 as defined."

Miss Majekodunmi contended that it was not enough for the tribunal blandly to say that the claimant did not suffer from A11, contrary to the findings of the medical board and Dr. Hindson, but they had to explain why they reached the contrary conclusion. She cited in support of this submission the following quotation from the unreported decision CSI/90/1988 at paragraph 9:

"But it would clearly have been simple for the tribunal to have added a word or two to indicate the basis for their rejection of the consultant's report. In short it is not enough to say that they did not agree with the material founded upon by the adjudicating medical authority but they ought to have explained why and, as it may be, although the decision is silent on this matter, why they rejected that authority's finding, implicitly from their record of symptoms and signs, that the claimant was suffering from bursitis or subcutaneous cellulitis."

I reject that submission. Moreover, in so far the extract from the decision quoted accords with Miss Majekodunmi's submission, I am afraid that I dissent therefrom. In my judgment, it cannot be over-emphasised that the medical members of a MAT are experts in their own right. They do not have to explain the mental processes which lead them to their conclusion or the medical experience on which they rely for their conclusion. So long only as they take into account all the evidence before them (and there is no suggestion that they did not) they are at liberty to accept or reject it. They are the sole arbiters of the issue and they do not have to explain why, if such is the case, they reject it. Any other view would render the whole system unworkable. Commissioners are not doctors, and are wholly unqualified to appraise whether a sufficient medical explanation is given for one conclusion rather than another. But, in any event, they have no jurisdiction whatsoever to interfere in medical matters. Accordingly, I reject Miss Majekodunmi's submission on this particular issue.

However, for the reasons given earlier, I am satisfied that I must nevertheless set aside the tribunal's decision and direct a rehearing.

Accordingly I allow this appeal.

Date: 27 June 1990 (signed) Mr. D. G. Rice

Commissioner