UK Social Security and Child Support Commissioners' Decisions

You are here: BAILII >> Databases >> UK Social Security and Child Support Commissioners' Decisions >> [1991] UKSSCSC CI_99_1988 (21 May 1991)
URL: http://www.bailii.org/uk/cases/UKSSCSC/1991/CI_99_1988.html
Cite as: [1991] UKSSCSC CI_99_1988

[New search] [Printable RTF version] [Help]

[1991] UKSSCSC CI_99_1988 (21 May 1991)

R(I) 3/92

Mr. V. G. H. Hallett CI/99/1988
21.5.91

Commissioners' jurisdiction - decision of medical board invalid for lack of signature - whether Commissioner obliged to refer the case to another tribunal

On 2 July 1986 an initial medical board found disablement due to the relevant accident but never completed the decision and withdrew it. On 16 July 1986 the medical board altered the report, and inter alia changed the assessment of disablement from 10% to 15%. This decision was not signed by all board members and one member was not present. On 22 July 1987 the MAT to which the decision of 16 July 1986 was referred, decided there was no loss of faculty resulting from the relevant accident.

Held that:

the initial decision of the medical board of 2 July 1986 as altered on 16 July was invalid (not signed by all the members, not all members present, as required by regulations 33(1) and 32(7) of the 1984 Adjudication Regulations);

the decision of the MAT of 22 July 1987 was erroneous in law and set aside;

the Social Security Act 1975 section 112(6) which provides for erroneous decision to be set aside and reference to another MAT with directions for its determination, does not apply since the decision referred to the MAT was a nullity;

regulation 3(7) of the Adjudication Regulations 1986 (directions for the disposal of a purported appeal) would not apply since the matter is not an appeal;

there is no valid decision of a medical board so adjudication officer should make a fresh reference to a differently constituted medical authority to consider the disablement questions afresh.

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Decision

This claimant's appeal succeeds. My decision is that:

(1) the decision of the medical appeal tribunal (MAT) dated 22 July 1987 is erroneous in law and I set it aside;

(2) the purported decision of the adjudicating medical authority (AMA) dated 2 July 1986 and altered on 16 July 1986 which was the subject of the reference to the MAT is a nullity. Accordingly, there is no case which requires to be referred by the Commissioner to another MAT pursuant to section 112(6) of the Social Security Act 1975, as amended.

Representation

I held an oral hearing of this appeal. The claimant, who did not appear, was represented by Mr. D. Price, welfare rights officer of the Devon Welfare Rights Unit. The Secretary of State was represented by Miss Annette Majekodunmi of the Solicitor's Office, Departments of Health and Social Security.

Course of the proceedings

The claimant sustained an industrial accident on 30 October 1967. He claimed disablement benefit on 9 April 1986. On 2 July 1986, an initial medical board found injury to cervical spine fully relevant and recorded hypertension under treatment, back injury II, left knee injury as unconnected conditions. The report was altered on 16 July 1986 and as altered provisionally assessed the disablement resulting from the relevant loss of faculty at less than 1% for the period to 9 August 1985 and then 15 % (instead of 10% in the original version) from 10 August 1985 to 8 August 1987.

A direction was made on behalf of the Secretary of State to refer the decision of the initial medical board in its altered form to a MAT. The MAT before whom the claimant appeared on 22 July 1987 represented by an official of his trade association did not confirm the decision of the medical board but decided that from 20 December 1967 there was no loss of faculty resulting from the relevant accident.

Leave to appeal against this decision was refused by the chairman of the MAT and the claimant applied for leave to a Commissioner who directed a written submission from the Secretary of State. The Secretary of State submitted that the decision of the MAT was erroneous in law and a nullity and the Commissioner, by consent, set aside their decision and remitted the case to another MAT. No directions were given to them and the fresh MAT's chairman indicated that he was uncertain how to deal with the matter. It was referred back to the Commissioner and it was then discovered that his decision was defective because leave to appeal had not been granted. The Commissioner accordingly set it aside and after granting leave to appeal referred the case to another Commissioner to give a fresh decision.

Was the MAT's decision erroneous in law?

Before me, it was not in dispute that the decision of the MAT was erroneous in law and a nullity. The only decision referred to the MAT at the instance of the Secretary of State was that dated 2 July 1986 as altered on 16 July 1986. The altered decision was invalid in that it was not signed by all the members of the medical board, as required by regulation 33(1) of the 1984 Adjudication Regulations (now regulation 30(1) of the 1986 Adjudication Regulations) and, further, because one member of the board was not present when the amended decision was given, which was a breach of regulation 32(7) of the 1984 (now regulation 29(5) of the 1986) Adjudication Regulations. Thus the only decision that the MAT could properly have given was to set aside the decision of the medical board: see paragraphs 25 and 29 of decision CI/141/1987 (Milne) which is that of a tribunal of Commissioners.

Should the case be remitted to another MAT?

Sub-section (6) of the Social Security Act 1975, which were added to section 112 as from 6 April 1990 by the Social Security Act 1989, Schedule 3 paragaph 9(2) provides:

"(6) Where the Commissioner holds that the decision was erroneous in point of law he shall set it aside and refer the case to a medical appeal tribunal with directions for its determination."

Paragraph (7) of the Social Security (Adjudication) Regulations 1986, which was added to regulation 3 by regulation 3(3) of SI 1990/603 as from 6 April 1990 provides:

"(7) A chairman of an appeal tribunal or a medical appeal tribunal may give directions for the disposal of any purported appeal where he is satisfied that the tribunal does not have jurisdiction to entertain the appeal."

Miss Majekodumni, on behalf of the Secretary of State, submitted:

(1) that the effect of section 112(6) of the 1975 Act as amended was that it was now mandatory for me to remit the case to another MAT with directions for its determination

(2) that the matter should be referred back to the MAT who gave the decision now set aside and that the chairman of that MAT could give directions, under regulation 3(7) of the amended 1986 Adjudication Regulations, for disposal of the appeal

(3) that the unamended decision of the medical board (which had not been referred by the Secretary of State to the MAT) was not valid because on the facts it was never fully completed and it was withdrawn before the giving of notice of that decision and its effective promulgation. The principles of Milne applied. [CI/141/1987, para. 30]

(4) that the unamended decision, since it was invalid, should not be the subject of a Secretary of State's reference to the MAT. A fresh medical board was required.

I do not accept that section 112(6) of the 1975 Act as amended requires me to refer the case to a fresh MAT. There is no case that I can refer. The altered decision that was referred to the MAT was a nullity and I have so declared. The unamended decision, which was not referred to the MAT, was invalid and a nullity for the reasons given by Miss Majekodunmi. It would be pointless for there to be a reference by the Secretary of State to a fresh MAT of another nullity. A fresh MAT would have no function to perform. There is nothing left for them to declare and they cannot decide any medical questions in this case. It would have no jurisdiction to decide anything and there are no directions that I could give to them.

For completeness, it should be added that if the matter were to be referred to a fresh MAT the chairman would have no power to give directions as to the disposal of the case. His power to give directions relates to cases where the matter before him is an appeal. It does not extend to references made at the instance of the Secretary of State. Paragraphs (1), (3), (5) and (6) of regulation 3 of the 1986 Adjudication Regulations all make provision in respect of "any application, appeal or reference". Paragraph (5) was amended on the same day and by the same regulation of the same statutory instrument as that which introduced the new paragraph (7). The amended paragraph (5) contains a specific addition relating to appeals which cannot refer to applications or references. I find it impossible to construe "any purported appeal" in paragraph (7) as including "any purported reference" in the context of the amended regulation 3 of the 1986 Adjudication Regulations. Nor, indeed, would it be appropriate to confer on the chairman of a medical appeal tribunal power to give directions to the Secretary of State. The Secretary of State does not form part of the statutory adjudicating authorities. It would be contrary to principle for a chairman to be empowered to tell the Secretary of State what to do.

My decision is set out in paragraph 1. Since there is no valid decision of the medical board now in existence, and no subsisting reference to that board, there should now be a fresh reference by the adjudication officer to a differently constituted medical authority which can consider the disablement questions afresh. Any decision of that board will be subject to the usual rights of appeal or reference.

Date: 21 May 1991 (signed) Mr. V. G. H. Hallett Commissioner