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Evans and Kitchen v. Secretary of State for Social Security [1993] UKSSCSC CI_215_1989 (30 July 1993)

R(I) 5/94
(Evans and Others v. Secretary of State for Social Security)

CA (Neill, Nolan and Evans LJJ) CI/215/1989
30.7.93 CI/58/1989 CM/240/1990 CM/44/1991

Tribunal practice - reasons for decision - whether medical appeal tribunal obliged to explain rejection of views of other medical experts

E claimed disablement benefit on the ground that she was suffering from prescribed disease A8. Her claim was refused and a medical appeal tribunal found that she was not suffering from the disease, despite there being medical opinions before them to the opposite effect. K claimed disablement benefit in 1986 on the ground that he was suffering disablement arising from an industrial accident in 1961. His claim failed and a medical appeal tribunal found that his "present clinical findings are not attributable to the relevant accident" despite there being a report before them suggesting "probably major part of present disability relates to episode in 1961". M and B were both refused mobility allowance on repeat claims made before earlier awards came to an end. At some time after the previous awards had expired, their appeals to medical appeal tribunals were unsuccessful. In all four cases, the Commissioners dismissed appeals, holding that the tribunals had given adequate reasons for their decisions as required by regulation 31(4) of the Social Security (Adjudication) Regulations 1986. The claimants appealed.

Held, allowing all the appeals, that:

where an appellate court has to consider whether the decision of a medical appeal tribunal is a lawful decision under regulation 31 (4), bearing in mind the underlying principle that fairness to the claimant "requires a tribunal …. to give sufficient reasons for its decision to enable the parties to know the issues to which it addressed its mind and that it acted lawfully" (Regina v. Civil Service Appeal Board, ex parte Cunningham [1992] ICR 816 at 827), it should approach the matter on the following lines:

(i) the decision should record the medical question or questions which the tribunal is required to answer;

(ii) where the tribunal has medically examined the claimant they should record their findings;

(iii) where, however, the clinical findings do not point to some obvious diagnosis it may be necessary to give a short explanation as to why they have made one diagnosis rather than another, particularly where their diagnosis differs from a reasoned diagnosis of another qualified practitioner who has examined the claimant;

(iv) as regards causation, in some cases it may be sufficient for the tribunal to record that it was not satisfied that the present condition was caused by the relevant trauma; but where a claimant has previously been in receipt of some benefit or allowance (particularly if paid over a long period of time) and there is no question of malingering or bad faith then an explanation should be given that allows him or his advisors to know where the break in causation has been found;

in the cases of M and B, the decisions would have been unassailable had the tribunal set out and answered the various questions which the Mobility Allowance Regulations 1975 required them to address e.g. the dates to which the findings were related;

in the case of E, fairness pointed, in light of the fact that the tribunal disagreed with the claimant's consultant, to the need for an adjournment so that the tribunal's provisional view could be brought to the attention of the claimant's own advisors; and

in the case of K, the tribunal should, in light of the report before them, have explained their decision in more detail than they did.

The Court of Appeal remitted the four cases to medical appeal tribunals.

DECISION OF THE COURT OF APPEAL

Mr J. Baker (instructed by Messrs. Raleys, South Yorkshire) appeared on behalf of the Appellant Evans.

Mr. S. Bedau (instructed by Messrs. Atherton and Godfrey, Doncaster) appeared on behalf of the Appellant Kitchen.

Mr. R. Allfrey (instructed by Birmingham Tribunal Unit, Birmingham) appeared on behalf of the Appellant Begum.

Mr. R. Allfrey (instructed by Wythenshawe Law Centre, Manchester) appeared on behalf of the Appellant Moran.

Mr. R. Jay (instructed by the Solicitor to the Department of Social Security) appeared on behalf of the Respondent.

NEILL LJ: In these four appeals we are concerned with the entitlement to payment of benefits which were payable under the Social (Security Act 1975 (as amended) (the 1975 Act). The 1975 Act has now been repealed and replaced by The Social Security Contributions and Benefits Act 1992 and The Social Security Administration Act 1992. The regulation to which these appeals are directed, however, remains in force and the court is asked to give some general guidance as to its proper construction and application.

Under the 1975 Act a claimant for some of the benefits payable under the Act was required to satisfy certain medical criteria. In such cases the medical aspect of the claim was referred in the first instance to a medical board and then, either by way of appeal or review, to a medical appeal tribunal. Regulations relating to the adjudications to be made by adjudicating medical authorities and medical appeal tribunals were contained in section D of Part III of the Social Security (Adjudication) Regulations 1986. We are concerned with regulation 31 of these regulations. This regulation provided that a medical appeal tribunal should hold an oral hearing of any appeal or reference made to it; regulation 31(4), with which we are particularly concerned, provided (as amended) as follows:

"A medical appeal tribunal shall in each case record their decision in writing and shall include in such record, which shall be signed by all members of the tribunal, a statement of the reasons for their decision, including their findings on all questions of fact material to the decision."

It will be seen therefore that a decision of a medical tribunal has to comply with the following requirements:

(a) The decision is to be in writing.

(b) The record of the decision is to be signed by all members of the tribunal.

(c) The record of the decision is to include a statement of the reasons for the tribunal's decision.

(d) The statement of the reasons is to include the tribunal's findings on all questions of fact material to the decision.

It is common ground that the question whether a record of the decision of a medical appeal tribunal complies with regulation 31(4) is a question of law as to which an appeal lies to a social security Commissioner and thence with leave to this court. An important element in the present appeals is that two quite recent decisions of social security Commissioners have disclosed a difference of approach to the obligations of a medical appeal tribunal when recording their decision. Mr. Rice in his decision in West dated 2 May 1991 concluded that a medical appeal tribunal is under no obligation to explain why they have not accepted the views of other medical experts who have examined the claimant. Mr. Sanders on the other hand in his decision in Purcell dated 24 May 1991 concluded that the medical appeal tribunal's decision was erroneous in law because they had failed to explain why in the face of the other medical evidence they had reached the conclusion that they had. It may be noted that in the present appeals counsel for the Secretary of State has adopted a middle position, contending that the medical appeal tribunal are under a duty to explain the reasons for their conclusion if the other medical experts have given reasons for their contrary conclusion, but that the obligation to explain does not extend to a case where the other experts have merely stated a conclusion without giving reasons for it.

With this introduction and before turning to the arguments relating to regulation 31(4), I must first set out the facts in the four appeals.

The Evans appeal.

Mrs. Evans, who was born in March 1948 and is now aged 45, was employed as a packer at a bakery in Barnsley between 23 September 1979 and 12 June 1981. This employment involved frequent and repetitive movements of the hands and wrists. On 12 January 1986 Mrs. Evans made a claim for industrial disablement benefit on the basis that she was suffering from a prescribed industrial disease, namely tenosynovitis. Mrs. Evans attributed her condition to the repetitive nature of the work which she had to perform at the bakery. Tenosynovitis or, more strictly traumatic tenosynovitis, is another term for the prescribed disease A8 which is listed in Schedule 1 to the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985. In the schedule prescribed disease A8 is described as "traumatic inflammation of the tendons of the hand or forearm or of the associated tendon sheath". The occupations for which this disease is prescribed are stated to be "manual labour, or frequent or repeated movements of the hand or wrist"

On the receipt of her application Mrs. Evans was referred for a medical examination to Dr. Hossain of the rheumatology department at Barnsley District General Hospital. Dr. Hossain examined Mrs. Evans on 21 April 1986. In his report dated 23 April 1986 he gave the following diagnosis:

"Tenosynovitis of the common extensor tendon sheath and tendon sheath of the abductor pollucis longus and extensor pollucis brevis on both sides."

In answer to the question on the form which Dr. Hossain completed "Is the claimant suffering from PD A8 or any sequela thereof?" Dr. Hossain answered "Yes". He also expressed the view that the disease was due to the nature of her employment and that as she had been suffering from tenosynovitis from 1979 she was less likely to improve.

On 23 June 1986 Mrs. Evans was examined by the medical board. The board, consisting of Dr. Tyson and Dr. Matuk, had before them Dr. Hossain's report dated 23 April. They set out in their report the symptoms and signs which they had observed in the course of the examination. They came to the conclusion that Mrs. Evans was not suffering from a prescribed disease nor had she so suffered at anytime since 1 September 1981. The board said that they had noted the consultant's report of 23 April but that they did not feel that the diagnosis was a prescribed disease. They remarked that the claimant had worked for four years at a bakery job and had not worked at all for the past three years. On the basis of the medical board's report the application for disablement benefit was rejected by the insurance officer in August 1986.

Mrs. Evans then appealed to the medical appeal tribunal. Before the appeal came before the medical appeal tribunal, however, Mrs. Evans commissioned medical reports from Dr. Brown, her general practitioner, and from Mr. R. S. Amos, a consultant rheumatologist. Dr. Brown provided a certificate dated 24 September 1986 to the effect that Mrs. Evans had attended his surgery frequently over the previous five years suffering from tenosynovitis of both wrists of sufficient severity to prevent her from carrying out any manual work. Mr. Amos examined Mrs. Evans in October. In a report dated 20 October 1986 he stated that on examination he had found that she was "diffusely tender over the wrists and forearms and especially tender over the tendons from both thumbs and the index finger of the left hand". He further stated that these tendons were also thickened adding that there was no sign of generalised rheumatic disease to account for her symptoms. He expressed the following opinion:

"The history and physical signs are consistent with the diagnosis of tenosynovitis."

Mrs. Evans' appeal was heard by the medical appeal tribunal on 11 March 1987. They had before them the medical report from Dr. Hossain, the medical board report, Dr. Brown's letter and the report of Mr. Amos. The medical appeal tribunal, which consisted of two medical members (a consultant general surgeon and a consultant orthopaedic surgeon) with a legal chairman, stated their findings and the reasons for their decision as follows:

"We examined the claimant. There is no swelling, no localised thickening over thumb or finger extensors. No creaking to be felt at any site over front or back of wrist or forearms. The history of pain as given does not mention the forearm either front or back surface at any time. There was apparent tenderness over the front and back of thumb joint transversely.

In our opinion she does not and has not suffered tenosynovitis PD A8."

Mrs. Evans then appealed to the social security Commissioner. In his decision dated 29 July 1988 Mr. M. J. Goodman allowed the appeal. In paragraph 5 of the decision he stated that he accepted as correct the written submission put forward on behalf of the Secretary of State to the effect that though the medical appeal tribunal did not have to deal with every piece of evidence before them it was necessary that "a claimant should, by looking at the findings and reasons for the decision, be able to see why the evidence has failed to satisfy the MAT". Mr. Goodman added in paragraph 6:

"... Where detailed medical evidence of a highly favourable nature including a report commissioned by the medical board was before the medical appeal tribunal it behoved that tribunal to give some indication in its reasons for decision why it did not feel able to accept the reports. It is not sufficient simply to say that the reports were 'considered'".

A second medical appeal tribunal considered Mrs. Evans' case on 17 January 1989. By this time the form to be completed by the medical appeal tribunal had been amended in 1987 so as to separate "findings on all material questions of fact" from the "reasons for decision". In the findings the medical appeal tribunal set out what they had found on examination. They stated that there was no significant swelling of the tendon sheaths and no crepitus. They added "when the wrist was held stiff there were no physical signs in the tendon sheaths when the fingers and thumbs were moved". In their reasons for decision the tribunal stated:

"All submissions have been considered and the scheduled evidence examined including the letter from Dr. Brown of 24 September 1986 and reports of Dr. Hossain of 23 April 1986 and Dr. Amos of 20 October 1986.

The physical signs do not support a diagnosis of PD A8 traumatic inflammation of the tendons of the hand or forearm or the associated tendon sheaths.

We have carefully considered the letter from Dr. Brown and the reports from Dr. Hossain and Dr. Amos. None of these documents contain descriptive evidence to support a diagnosis of PD A8 or any sequela of that disease."

Mrs. Evans then appealed for the second time to a social security Commissioner. By his decision dated 14 November 1990 Mr. A. T. Hoolahan QC dismissed Mrs. Evans' appeal. In paragraph 6 of the decision he said:

"It seems to me that when dealing with medical matters it may be very difficult to state reasons which are sufficient to enable the claimant and her representative to see clearly why the evidence failed to satisfy the MAT. I am by no means sure that that is a proper test when the appeal deals with medical matters (unlike an appeal from the social security appeal tribunal). Be that as it may, in the present case, the medical appeal tribunal have stated that 'none of these documents contained descriptive evidence to support a diagnosis of PD A8 or any sequela of that disease.' As Commissioner I have no medical expertise. It is quite impossible for me, therefore, to say whether or not the documents in question contain descriptive evidence to support a diagnosis of PD A8, or any other disease or ailment . ... In my judgment the present medical appeal tribunal have given some indication why they did not feel able to accept the reports. They cannot be expected, in my judgment, to write a thesis on tenosynovitis and, even if they did, I doubt whether the claimant would be any the wiser."

It is to be noted that in the submission put forward to the Commissioner on behalf of the Secretary of State it was accepted that it was necessary that the reasons given by the medical appeal tribunal should be sufficient to enable the claimant and her representative to see clearly why the evidence failed to satisfy the tribunal. The submission concluded by stating that it was arguable whether the reasons given were sufficient and accordingly whether the decision complied with regulation 31(4).

The Kitchen appeal.

On 26 September 1961, Mr. Michael Kitchen who was born on 18 August 1942 and was then aged 19, was employed as an agriculture engineer. On that date he was watching some tractors being unloaded from a trailer. In the course of the unloading one of the tractors rolled off the trailer. The front wheel of the tractor struck Mr. Kitchen's chest and the rear wheels passed over his pelvis. He sustained a fractured pelvis and damaged lumbar spine. Following this incident Mr. Kitchen was off work for between six and seven months and he then took employment as a lorry driver.

In 1985 Mr. Kitchen's health began to deteriorate. A diagnosis was made that he was suffering from lumbar instability. On 5 August 1986 he submitted a claim for disablement benefit. In the claim form Mr. Kitchen gave a brief account of the accident in 1961.

On 13 November 1986 Mr. Kitchen was examined by a member of the Adjudicating Medical Authority. The board asked for a consultant's report on the link between the accident in 1961 and Mr. Kitchen's then condition.

On 5 December 1986 Mr. R. W. Porter, a consultant orthopaedic surgeon in Doncaster, was asked to examine Mr. Kitchen and to comment in particular on:

"1. His present condition and diagnosis.

The relevance of his present condition to the accident .... in 1961.

The prognosis."

Mr. Porter examined Mr. Kitchen on 17 March 1987 and submitted a written report. He answered the three matters on which he had been asked to comment as follows:

"1. Fairly constant low back pain with some features of fatigue pain and subluxation pain suggesting unstable lower lumbar segment.

The episode in 1961 was the first episode of back pain. It was fairly significant and took him off work for eighteen months. It is probable that his present symptoms are related to that episode, though probably not entirely. Probably major part of present disability relates to episode in 1961.

Prognosis is fair. At present fit for light manual work, some driving, not much loading, and should be able to continue at this until retirement."

On 14 May 1987, however, Mr. Kitchen received a letter from the Department of Social Security informing him that his application for disablement benefit had failed. Mr Kitchen then appealed to the medical appeal tribunal. Pending the hearing of the appeal, however, Mr. Kitchen consulted Mr. G. W. Simonds, a consultant orthopaedic surgeon in Doncaster. In his report dated 16 November 1987 Mr. Simonds, having set out the history of the case and the results of his examination, stated his opinion. In this part of the report he said that there were objective signs of disability but also evidence of quite a marked functional overlay. The report continued:

"I have been asked to comment on the relationship of his present disability to an accident when he fractured his pelvis in 1961. Assessment at this length of time is always difficult particularly in the absence of accurate information as to his immediate progress at the time of that accident . ... Certainly the x-rays do show some distortion of the pelvis, not gross but sufficient to suggest that there has been some abnormal stress on the lumbar spine since that time. It is therefore quite possible that some of his present disability relates to that accident."

At the end of the report Mr. Simonds summarised the matter as follows:

"With the complex issues involved, not least being the length of time that has elapsed since the accident in 1961, I do not think we can attribute the present disability in its entirety to the accident in 1961, nevertheless, I do not think we can discard it as a possible contributory factor."

On 21 March 1988 Mr. Kitchen's appeal was heard by the medical appeal tribunal. In their findings on all material questions of fact they included the following findings:

"There is some mid-line tenderness, not well localised. There is no neurological impairment. Straight leg raising and femoral stretch are equally limited on the two sides. Lumbar extension is particularly limited and painful. Other lumbar movements are approximately 50% of the normal range for a man of his age. These are the signs of a chronic lumbar sprain."

The decision of the tribunal was that there was no loss of faculty resulting from the accident in 1961. The reasons for decision were in these terms:

"We have considered all the evidence listed in the schedule and on the forms BI 265A dated 2 July 1987 and 14 January 1988 and that presented orally at the hearing, and have examined the x-rays.

The present clinical findings are not attributable to the relevant accident on 26 September 1961, and we therefore uphold the decision of the AMA (Adjudicating Medical Authority)."

Mr. Kitchen then appealed to the social security Commissioner. In his submission to the Commissioner on the appeal the Secretary of State submitted that the decision dated 21 March 1988 should be held to be erroneous in point of law. Paragraph 7 of the submission concluded:

"The MAT have not commented on either [of the two medical reports before them] or given any reason for disagreeing with the opinions expressed in them. Accordingly it is submitted that their decision does not comply with the requirements of regulation 31(4)…"

By his decision dated 3 December 1990 the social security Commissioner, Mr. D. G. Rice, dismissed the appeal. In his decision he said that he could see nothing wrong with the tribunal's decision and rejected the submission put forward on behalf of the Secretary of State. In paragraph 5 of the decision Mr. Rice continued:

"It cannot be over-emphasised that the MAT are experts in their own right. They must, of course, consider any expert evidence given by doctors, but providing they do so, and there is no suggestion in the present case that the tribunal neglected to consider the reports referred to they are not obliged to say why they reject it. They are under no duty to explain the mental processes and the medical experience which lead them to that conclusion. Their task is not to be made intolerable. As experts they will evaluate all the evidence before them, and in the light of their own expertise make a value judgment on the medical issues. Thus, in the present case, they were under no obligation to explain where the authors of the two reports went wrong nor, I apprehend, would it have been much comfort to the claimant if they had. At the end of the day the MAT are the sole arbiters of all medical matters. Their medical judgment is not open to challenge. Any conflicting view is simply wrong."

On 30 April 1991 Lord Justice Lloyd gave leave to appeal to this court after leave to appeal had been refused by the Commissioner.

The Moran appeal.

Before I set out the facts relating to the appeals by Mrs. Patricia Moran and Miss Shafina Begum I should first make some further reference to the 1975 Act and to regulations made under the 1975 Act.

The relevant provisions relating to a person's entitlement to a mobility allowance are contained in the first instance in section 37A of the Social Security Act 1975 which was inserted by the Social Security Pensions Act 1975 section 22(1). Section 37A (as amended by the Social Security Act 1986) provides as follows:

"(1) Subject to the provisions of this section, a person who satisfies prescribed conditions as to residence or presence in Great Britain shall be entitled to a mobility allowance for any (period throughout which he is suffering from physical disablement such that he is either unable to walk or virtually unable to do so.

(2) Regulations may prescribe the circumstances in which a person is or is not to be treated for the purposes of this section as suffering from such physical disablement as is mentioned above; but a person qualifies for the allowance only if -

(a) his inability or virtual inability to walk is likely to persist from at least 12 months from the relevant date; and

(b) during most of that period his condition will be such as permits him from time to time to benefit from enhanced facilities for locomotion.

(2A) Subject to subsection (2)(b) below, in subsection (2)(a) above 'the relevant date' means the date on which the claimant's inability or virtual inability to walk commenced or the date on which his claim was received or treated as received by the Secretary of State, whichever is the later.

(2B) Where -

(a) a claimant is awarded an allowance for a period; and

(b) he subsequently claims an allowance for a further period,

the relevant date is the first date not earlier than the end of the period for which the allowance was awarded on which the claimant was unable or virtually unable to walk.

(2C) Regulations may make provision -

(a) for permitting an award on a claim for a mobility allowance to be made either as from the date on which the claim is received or treated as received by the Secretary of State or for a period beginning after that date subject to the condition that the person in respect of whom the claim is made satisfies the prescribed requirements for entitlement when the benefit becomes payable under the award;

(b) for the review of any such award if those requirements are found not to have been satisfied."

I come next to the Mobility Allowance Regulations 1975 (SI 1975 No. 1573) which were made by the Secretary of State under the enabling powers contained in the 1975 Act. Regulation 3 of these regulations sets out the circumstances in which, for the purposes of section 37A of the 1975 Act, a person is or is not to be treated as suffering from physical disablement such that the is unable or virtually unable to walk. It is sufficient to refer to only part of this regulation. Regulation 3(1) (as substituted by SI 1990 No. 672) provides:

"(1) A person shall be treated, for the purposes of section 37A, as suffering from physical disablement such that he is either unable to walk or virtually unable to do so only if -

(a) his physical condition as a whole is such that, without having regard to circumstances peculiar to that person as to the place of residence or as to place of, or nature, of employment-

(i) he is unable to walk; or

(ii) his ability to walk out of doors is so limited, as regards the distance over which or the speed at which or the length of time for which or the manner in which he can make progress on foot without severe discomfort, that he is virtually unable to walk; or

(iii) the exertion required to walk would constitute a danger to his life or would be likely to lead to a serious deterioration in his health;

…."

Finally I should refer to regulations 53 and 54 of the Social Security (Adjudication) Regulations 1986. These regulations are contained in Section B of the 1986 Regulations. Section B is headed "Mobility Allowance". Regulation 53 provides:

"In this Section any question arising in connection with a claim for or award of mobility allowance -

(a) whether a person is sufferng from physical disablement such that he is either unable to walk or virtually unable to do so at the date the claim is received or treated as received or at any subsequent date up to the date the question is determined, and if so, what date; or

(b) whether such inability or virtual inability to walk is likely to persist for at least 12 months from the date found for the purposes of paragraph (a); or

(c) for what period, being a period limited by reference either to the person attaining the age of 75 or to a definite earlier date, a person may be expected to continue to be unable, or virtually unable to walk; or

(d) whether during most of the period during which a person may be expected to continue to be unable or virtually unable to walk, his condition will be such as permits him from time to time to benefit from enhanced facilities for locomotion,

is referred to as a medical question."

Regulation 54 provides:

"In determining any medical question on a claim for mobility allowance, an adjudication officer, medical board or medical appeal tribunal shall have regard to the physical disablement of the person in respect of whom the claim is made at the date at which the claim is received or treated as received by the Secretary of State or, where those questions cannot be determined in that person's favour as at that date, they shall decide whether those questions may be determined in his favour from any subsequent date up to the date the questions are determined."

It may be that in regulation 53(c) the age of 80 should be substituted for the age of 75 in the light of the fact that section 37A (5) of the 1975 Act has been amended by section 8(1) of the Social Security Act 1989. This is not a matter, however, with which we are presently concerned.

I come now to the facts relating to the appeal by Mrs Moran.

Mrs. Moran was born on 30 May 1937. She is now aged 56. On 22 September 1986 she made a claim for a mobility allowance on the basis that she was virtually unable to walk. In her claim form she stated that she had had arthritis of the spine for the previous nine years and that for the last six years her walking had deteriorated. She said "I can walk about 200 yards and then I get a pain in the back which makes me breathless."

Following the receipt of this claim Mrs. Moran was awarded a mobility allowance from 22 September 1986 to 21 September 1987. A year later the allowance was renewed from 22 September 1987 to 20 March 1989.

On 9 January 1989 Mrs. Moran applied for a further renewal of her mobility allowance. She was examined by Dr. Bernstein on 15 February 1989. He diagnosed that Mrs. Moran had rheumatoid arthritis in her back and left hip and that her condition was likely to deteriorate. In assessing her walking ability, however, he recorded that her gait and pace were normal and that she was able to go over a hundred yards before needing to pause. He concluded that Mrs. Moran was neither unable to walk nor virtually unable to do so.

Mrs. Moran then appealed to the medical board who examined her on 17 June 1989. The board confirmed the diagnosis of rheumatoid arthritis. In their assessment of her walking ability they recorded:

"At her own speed and with stops if necessary she can manage to walk a hundred yards."

The board affirmed Dr. Bernstein's decision.

Mrs. Moran appealed to the medical appeal tribunal who upheld the decision of the medical board. In their decision dated 11 December 1989 under the heading "Reasons for decision, including findings on all material questions of fact" the tribunal said:

"We have read the scheduled evidence and listened to the claimant and Mrs. Robinson (who represented Mrs. Moran at the tribunal). We have also examined the claimant and observed her walk in the corridor here. We are told that the claimant is worse than when she was getting the allowance. Pain is all over now and the left side pain stops her walking after a short distance. The local grocer is 4/5 houses, she can manage to get there and back. Her walking distance is governed by pain. She complains of a lump in the left hip region which comes out after standing.

On examination we found movements of the spine to be virtually nil with much voluntary muscle spasm. She could sit upright with her leg extended. There was no neurological change in the lower limbs. She resisted fully extending the left knee. There was however no swelling and flexion was good. She resisted movement of other joints for no obvious physical cause or reason. Her fingers and hands were normal.

When she walked in the corridor here over 25 yards, with a stick in her right hand, she did so slowly with no sign of severe discomfort.

Although we admit that the claimant's mobility is impaired we can find insufficient clinical evidence to lead us to the conclusion that she is virtually unable to walk. The appeal is therefore dismissed."

Mrs. Moran then appealed to the social security Commissioner. In his submission on this appeal the Secretary of State submitted that the medical appeal tribunal should have explained in what way and why they differed from the conclusions of the medical authorities who had upheld her claim for an allowance both in 1986 and 1987.

The Commissioner Mr. V. G. H. Hallett, dismissed the appeal. In paragraph 18 of his decision dated 10 September 1991 he said:

"It was quite unnecessary in the present case to go on to deal with why the MAT had reached a different conclusion to that which had been arrived at in respect of earlier periods which were not before them. Their reasons were quite adequate to comply with regulation 31(4) of the 1986 Adjudication Regulations."

The Commissioner also rejected a submission put forward on behalf of Mrs. Moran that the tribunal had been mistaken in thinking that she could reach the shops. The reference to a distance of 4/5 houses was a reference to the distance she could walk and not the distance to the shops which were further away. Mr. Hallett considered the fact that there were no shops at the end of the houses was irrelevant. It is to be noted that in 1991 Mrs. Moran made a further claim for a mobility allowance and she was awarded an allowance from 7 October 1991 to 29 May 2017 (when she will reach the age of 80). Her appeal is therefore concerned only with her entitlement to a mobility allowance for the period between 21 March 1989 and 6 October 1991.

The Begum appeal.

Miss Shafina Begum was born on 4 July 1972. She is now aged 21. Miss Begum was awarded a mobility allowance at the age of seven. The award was for the period of ten years from 27 July 1979 to 26 July 1989. On 16 May 1989 a claim was made for the renewal of the allowance. On 5 June 1989 Miss Begum was examined by the medical practitioner, Dr. A. D. Mason. He diagnosed that Miss Begum was suffering from congenital spastic paraparesis with ataxia and that she was virtually unable to walk. In his comments he wrote:

"This girl can manage at least a 100 yards on the level if there is something or someone to offer support. In the absence of this, she could probably only walk a very few yards without falling due to her ataxia. In spite of the fact that she can manage this distance, I consider her quality of walking to be so poor that she must be considered virtually unable to walk."

The adjudication officer, however, was unable to decide the claim on the basis of this report and he referred the medical questions which arose to a medical board.

On 21 July 1989 the medical board examined Miss Begum. The medical board confirmed Dr. Mason's diagnosis as to the basic disorder which gave rise to a lack of walking ability but concluded that she did not satisfy the test of being "virtually unable to walk". In their assessment of her walking ability they recorded:

"Observed over at least a hundred yards, which she completed at good pace with mildly ataxic gait and touched wall for support and to give her confidence."

Miss Begum appealed to the medical appeal tribunal who confirmed the decision of the medical board. In their decision dated 21 August 1990 under the heading "Reasons for decision, including findings on all material questions of fact" the tribunal said:

"We heard from Mr. Hyland of the BTU on behalf of the appellant and from her mother with the assistance of an interpreter. We also heard from Mrs. Marklew on behalf of the Secretary of State. All scheduled evidence was carefully considered together with an additional letter of 31 July 1990 from Victoria School produced by Mr. Hyland. It was submitted that as it was from someone with day to day contact with Shafina the statements in it should be particularly relied upon.

Our attention was drawn by Mr. Hyland to a report of 5 June 1989 at page 3 and its reference to Shafina being very unsteady etc. and the reference to supervision being required. He also drew attention to the report of 21 July 1989 and its reference to holding the wall for support in the course of carrying out the walking test.

Asked about the progress of walking ability, Mrs. Begum suggested that after beginning to walk at age ten as her daughter grew older, the basic walking ability may have improved but the balance got worse and overall her ability to walk has got worse. We were told that if left to herself, she would be likely to fall on average twice a day, but in practice she is always accompanied to prevent this from happening. Mr. Hyland made the point that the letter from Victoria School suggested that she had difficulty getting around there, even though it was a purpose built school for the disabled.

We saw Shafina walk for about 20 yards within the building and outside for a total distance of approximately 100 yards. Shafina walked slowly and steadily with a wide base and a suggestion of spasticity. She walked without support, at one stage she veered somewhat towards the wall, but when a member of the tribunal interposed himself between her and the wall, she walked fairly straight and steadily thereafter. Throughout the walk, she required no support.

It must be remembered that qualification for mobility allowance depends largely upon the physical act of walking and in a case like Shafina's one has to consider how far actual support is required and how much it is simply a question of guidance and reassurance. On the basis of the evidence we have heard, we believe, and we do not consider this contradicts the information contained in the letter from the school, that she does not require actual physical support, and her condition is one where she should be encouraged to walk whenever possible. Bearing in mind the distance we saw her walk and the time we consider she could continue walking at a slow but reasonable pace, we consider these factors place her outside the scope of regulation 3(1)(b) as virtually unable to walk.

Regulation 3(1)(c) was not overlooked, but exertion was not a factor on the evidence before us.

We accordingly confirm the decision of the medical board of 21 July 1989 that the appellant is not unable to walk or virtually unable to do so because of physical disablement."

Miss Begum then appealed to the social security Commissioner. In the written submission put forward on behalf of the Secretary of State Miss Begum's appeal was supported on the basis that the tribunal had failed to explain in what way and why their conclusion differed from the view of the medical authority who had previously awarded a disablement allowance. It was said that Miss Begum had been left in the dark as to why the tribunal considered that she no longer satisfied the medical conditions for the allowance and that therefore the tribunal had failed to provide sufficient findings and reasons as required by regulation 31(4). At the oral hearing before the Commissioner, however, this submission on behalf of the Secretary of State was withdrawn.

The Commissioner, Mr. V. G. H. Hallett, dismissed the appeal. In his decision dated 28 August 1991 he explained that he regarded the approach adopted in the case of Purcell (supra) as wrong. In paragraph 23(3) of the decision dated 28 August 1991 Mr. Hallett said:

"The MAT dealt with every specific contention that had been put before them and, in my judgment, made it quite clear why the case had gone against the claimant. There was no doubt, on the mother's own evidence and that of the Victoria School that the claimant could walk. The mother said she had been able to do so since she was ten years old. The question before the MAT was whether the claimant's balancing problems were such that she was virtually unable to walk. The MAT considered the mother's evidence and that of Miss Dowsett of the Victoria School with care and then reached their own expert conclusion that the claimant was not virtually unable to walk. They found that the claimant did not require actual physical support, it was simply a question of guidance and reassurance and that the claimant should be encouraged to walk whenever possible. That decision was one which they were entitled to make."

The case for the appellants.

It was submitted on behalf of the appellants that regulation 31(4) imposed on medical appeal tribunals an obligation to set out in their decision their findings on all questions of fact material to the decision. The regulation further imposed an obligation to set out the reasons for their decision. It followed therefore, though it was conceded that the tribunal were not required to provide an extensive and exhaustive judgment upon the merits of the application, that it was necessary:

(a) For the tribunal to make specific findings and to state what evidence they accepted and what evidence they rejected.

(b) To explain, in cases where medical evidence favourable to the applicant had been rejected, the reasons for its rejection.

(c) To explain, in cases where the applicant had been in receipt of the relevant allowance previously, why the applicant was no longer eligible for the allowance.

(d) In summary, to provide the claimant with sufficient information to enable him to understand why the decision has gone against him.

The case for the Secretary of State

Counsel for the Secretary of State drew our attention to several authorities which he submitted were relevant to the questions raised in these appeals. I shall refer to some of these authorities later. He summarised his submissions on behalf of the Secretary of State in this way:

(1) As a general rule brief reasons should be given so that the claimant may understand the grounds upon which the medical appeal tribunal came to their decision.

(2) In a case where the claimant's doctor gives no reasons to support his conclusion that the claimant is entitled to an allowance there is no obligation on the medical appeal tribunal to say in terms why they have reached a different conclusion. The fact that the tribunal have disagreed with the claimant's doctor can readily be inferred from the contrary conclusion itself.

(3) Where, however, the claimant's doctor has given reasons to support his opinion or where the claimant has put forward some specific contention the tribunal are then under an obligation, depending on the facts of theparticular case, to explain their reasons for disagreeing with the doctor's opinion or for disagreeing with the specific contention raised on behalf of the claimant.

The obligations imposed by regulation 31(4)

It will be apparent from the facts of the four appeals before us that the medical questions which the medical appeal tribunal are asked to resolve are likely to vary from case to case. In some cases the question will involve the nature of the disability, in other cases the extent of the disability or issues of causation. In the Evans appeal and the Kitchen appeal the question for the medical appeal tribunal was whether the existing condition resulted from the relevant trauma some years before. In the Moran appeal and the Begum appeal the question for the medical appeal tribunal was the extent of the disability together with ancillary questions which required the tribunal to consider the period over which the disability persisted or would persist.

It seems to me therefore that as a matter of practice (which could be recognised in the layout of the form which the tribunal are required to complete) the tribunal should set out in their decision the question or questions with which they have been asked to deal. I have already referred to the provisions relating to claims for a mobility allowance. It may be convenient to set out again the medical questions specified in regulation 53 of Section B of the Social Security (Adjudication) Regulations 1986:

(a) whether a person is suffering from physical disablement such that he is either unable to walk or virtually unable to do so at the date the claim is received or treated as received or at any subsequent date up to the date the question is determined, and if so, what date; or

(b) whether such inability or virtual inability to walk is likely to persist for at 12 months from the date found for the purposes of paragraph (a);or

(c) for what period, being a period limited by reference either to the person attaining the age of 75 or to a definite earlier date, a person may be expected to continue to be unable, or virtually unable to walk; or

(d) whether during most of the period during which a person may be expected to continue to be unable or virtually unable to walk, his condition will be such as permits him from time to time to benefit from enhanced facilities for locomotion.

It is clear that in such cases the questions to be addressed include:

(1) The claimant's ability to walk at the date of the claim and at subsequent dates up to the date when the question is determined. It is to be remembered that several months are likely to elapse between the date of the claim and any decision by a medical appeal tribunal.

(2) Whether any inability or virtual inability is likely to persist for at least twelve months from the relevant starting date.

(3) For what period any inability or virtual inability is likely to continue.

(4) Whether during most of the period found in (3) the claimant is likely to benefit from enhanced facilities for locomotion.

In addition the medical appeal tribunal will have to decide the question of inability or virtual inability to walk by reference to the considerations set out in regulation 3(1)(a)(ii) and (iii) of the Mobility Allowance Regulations. The medical appeal tribunal may therefore have to consider whether walking involves discomfort and whether the exertion required to walk would either constitute a danger to life or be likely to lead to a serious deterioration in the claimant's health.

In other cases the medical questions to be determined may be quite different, but I am satisfied that the inclusion of the relevant questions in the decision would focus attention on the precise matters to be addressed.

I come next to the findings of fact and the reasons.

As a starting point it is useful to refer to the judgment of Lord Lane CJ in R v. Immigration Appeal Tribunal Ex Parte Khan [1983] QB 790 where, in relation to the statutory duty of an immigration appeal tribunal to give reasons, he said at 794:

"The important matter which must be borne in mind by tribunals in the present type of circumstances is that it must be apparent from what they state by way of reasons first of all that they have considered the point which is at issue between the parties, and they should indicate the evidence upon which they have come to their conclusions. Where one gets a decision of a tribunal which either fails to set out the issue which the tribunal is determining either directly or by inference, or fails either directly or by inference to set out the basis upon which they have reached their determination upon that issue, then that is a matter which will be very closely regarded by this court, and in normal circumstances will result in the decision of the tribunal being quashed. The reason is this. A party appearing before a tribunal is entitled to know, either expressly stated by the tribunal or inferentially stated, what it is to which the tribunal is addressing its mind. In some cases it may be perfectly obvious without any express reference to it by the tribunal; in other cases it may not. Secondly, the appellant is entitled to know the basis of fact upon which the conclusion has been reached. Once again in many case it may be quite obvious without the necessity of expressly stating it, in other cases it may not."

This statement of the law was approved by Lord Donaldson MR in R v. Civil Service Appeal Board, Ex parte Cunningham [1992] ICR 1816 at 827.

In the course of the argument we were referred to the decision of the Court of Appeal in R v. National Insurance Commissioner, Ex parte Viscusi [1974] 1 WLR 646, where it was emphasised that decisions of medical authorities on disablement claims under the National Insurance (Industrial Injuries) Act 1965 were by their nature provisional and applied only to the period specified. In that case the claimant, who was aged 55 at the time, trod on a nail while working in woodlands and twisted his knee. His leg became swollen and he claimed disablement benefit. From the outset the Ministry appear to have treated the claim with some suspicion but two separate medical appeal tribunals made a provisional assessment of 50% disability and extended the period of the disability to 25 June 1967. On 30 November 1967, however, a third medical appeal tribunal discharged the assessment. In their decision they said:

"After examination, we accept the report of [the consultant who had examined the claimant] and agree with his findings and opinion. Whatever may have been the claimant's condition up to June 25 1967 the condition of his right lower limb thereafter is not attributable to the relevant accident. The assessment must be discharged."

The claimant appealed and in due course the matter reached the Court of Appeal. Among the matters which were argued on behalf of the claimant was that the decision did not comply with regulation 12(1) of the 1967 Regulations which required the tribunal's decision to include a statement of the reasons for their decision, including their findings on all questions of fact material to the decision. Buckley LJ dealt with this submission as follows at 655:

"A complaint was made as to the form in which the third medical appeal tribunal dealt with the matter, because, it was said, they departed from the views expressed by the earlier medical tribunal which accepted that Mr. Viscusi's disability was genuinely a result of the accident he had suffered, and yet there are no findings of fact to show what circumstances were relied on for the change of view. But this argument in my judgment really proceeds upon a misconception of the effect of the findings of the earlier tribunals . ... It was not incumbent, in my view, upon the third medical appeal tribunal to explain why they were differing from the findings of the earlier tribunals for the reason that those earlier findings were final only in relation to the period with which those bodies were dealing at the time."

Our attention was also drawn to the decision of the Court of Appeal in Baron v. Secretary of State for Social Services (17 March 1986) (R(M) 6/86). In that case the claimant, who was seeking a mobility allowance, told the medical appeal tribunal that he could not take a step without feeling pain and that after walking some ten to twelve yards the pain became so intolerable as to cause him to stop. He also referred to his breathlessness which was equally distressing and also caused him to stop. On the other hand the tribunal went on to record that the claimant had arrived for the hearing by car which he had parked about a hundred and fifty to two hundred yards away from the tribunal and that he had walked from his parked car to the tribunal, stopping three or four times for a rest of a minute or two. In addition the tribunal recorded the substance of their physical examination of the claimant. The finding of the tribunal was in these terms:

"We accept the report of Dr. Smith dated 11 November 1982 [who had reported that the claimant's walking ability was functionally normal but the problem was the pain which arose from his degenerative spinal disease when walking] and we also accept that the claimant suffers pain and breathlessness in walking. However, from our observations of the claimant and from our examination of him as reported above, such pain and breathlessness are not, in our opinion, sufficient and severe enough to qualify him for mobility allowance."

The tribunal therefore decided that the claimant was not unable to walk within the provisions of regulation 3(1)(a) nor did he satisfy the provisions of regulation 3(1)(b) or (c).

Before the Court of Appeal it was argued that the reasons given by the medical appeal tribunal were insufficient. That argument, however, was rejected. May LJ said:

"In my judgment the reasons given by the medical appeal tribunal in the instant case did suffice. They made it quite clear to the appellant, and indeed to the Department on the other hand, that the grounds on which they came to their conclusion that the decision of the Medical Board should be upheld, namely, that as a matter of degree, although pain and breathlessness were there, applying their medical expertise (though one has to bear in mind that that is one of the functions of the medical appeal tribunal), were that the pain and breathlessness were not sufficient to qualify this applicant for mobility allowance."

In the course of his judgment May LJ also rejected the argument that there was any obligation on the medical appeal tribunal to make a specific finding as to the distance which the claimant could reasonably walk without having to stop as a result either of pain or breathlessness. In addition he held that it was not necessary for the tribunal to record in terms that the claimant's evidence had been rejected or only partially accepted in cases where such a finding could be inferred from the decision reached.

It seems clear that the decisions in Viscusi and Baron have not been cited in some of the cases decided by social security Commissioners. On the other hand it is necessary to bear in mind the general principle enunciated by Lord Donaldson MR in Ex Parte Cunninqham (supra) where, in relation to a decision of the Civil Service Appeal Board which was not under a statutory duty to give reasons, he said at [1992] ICR 816, 828:

"Fairness requires a tribunal such as the board to give sufficient reasons for its decision to enable the parties to know the issues to which it addressed its mind and that it acted lawfully."

I can see nothing in the recent decision of the House of Lords in R v. Secretary of State for the Home Department, Ex Parte Doody [1993] 3 WLR 154 to throw any doubt on this principle.

Guidelines.

I have come to the conclusion that it is not possible to lay down guidelines in other than broad terms. Much will depend on the facts of the individual case. I would, however, suggest that any appellate court which has to consider whether a decision of a medical appeal tribunal complies with regulation 31(4) of the 1986 Regulations so as to be a lawful decision should approach the matter on the following lines:

(1) The decision should record the medical question or questions which the tribunal is required to answer. Provided the questions are set out and the answers are directed to the questions it should then be possible for the parties to know the issues to which the tribunal have addressed themselves.

(2) In cases where the tribunal have medically examined a claimant they should record their findings. These findings by themselves may be sufficient to demonstrate the reason why they have reached a particular conclusion.

(3) Where, however, the clinical findings do not point to some obvious diagnosis it may well be necessary for the tribunal to give a short explanation as to why they have made one diagnosis I rather than another. Such an explanation will be important in cases where the tribunal's diagnosis differs from a reasoned diagnosis reached by another qualified practitioner who has examined the claimant on an earlier occasion.

(4) A decision on a question of causation may pose particular difficulties when one is examining the adequacy of the reasons for the decision. In some cases it may be sufficient for the tribunal to record that it is not satisfied that the present condition was caused by the relevant trauma. Where, however, a claimant has previously been in receipt of some benefit or allowance (particularly if the benefit or allowance has been paid over a long period) and there is no question of malingering or bad faith it seems to me that the tribunal should go further then merely to state a conclusion. If one accepts that the underlying principle is fairness the claimant should be given some explanation, which may be very short, to enable him or his advisers to know where the break in the chain of causation has been found. Thus it may well be that the claimant will wish to re-apply and for this purpose fairness requires that, if possible, he should be told why his claim has failed.

The present appeals.

I turn therefore to the individual cases.

I propose to deal first with the cases of Moran and Begum. I have come to the conclusion that in these two cases the decisions would have been unassailable had the tribunal set out and answered the various questions which the Mobility Allowance Regulations required them to address. Thus, for example, the decisions do not deal with the dates to which the findings were related. On the other hand the decisions include adequate findings of fact to make it sufficiently plain to the reader why the tribunal concluded that on the date of the examination the appellants were not "virtually unable to walk". Nevertheless I would quash the decisions on the basis that the written record does not deal with all the matters which should have been included.

As I have already noted, the Evans appeal and the Kitchen appeal are causation cases. I shall consider first the case of Mrs. Evans.

I see the force of the point made by Mr. A. T. Hoolahan QC to the effect that it is impossible for a layman to evaluate whether the reports from Dr. Hossain and Mr. Amos did or did not contain descriptive evidence to support a diagnosis of PDA or any sequela. On the other hand Mr. Amos, who is a consultant rheumatologist, expressed the opinion that the history and physical signs were consistent with a diagnosis of tenosynovitis. It is to be remembered that Mr. Amos, who examined Mrs. Evans in October 1986, stated that on examination he found that she was diffusely tender over the wrists and forearms and especially tender over the tendons of both thumbs and the index finger of the left hand. It is of course true that in the end it is the findings of the medical appeal tribunal which are decisive, but it seems to me profoundly unsatisfactory that, when one is dealing with a long standing condition, an appeal should be rejected if there is a real risk that the same clinical findings may be interpreted differently by two experts. In such a case I consider that 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 the absence of such a procedure the claimant is left in the dark. With some hesitation therefore I would quash the decision in Mrs. Evans' case also.

I come finally to the Kitchen appeal. In this case the report by Mr. Simonds did not provide much assistance for Mr. Kitchen, but Mr. Porter's report recorded the opinion that "probably major part of present disability relates to episode in 1961". With all respect to Mr. Rice, the social security Commissioner, I do not think that it would impose an intolerable burden on the medical appeal tribunal to require them to explain their decision in more detail than in the terms recorded on 21 March 1988. I am satisfied that this decision should be quashed too.

For these reasons I would allow these appeals.

NOLAN LJ: I agree.

EVANS LJ: I also agree.

ORDER: Appeals allowed with costs and legal aid taxation; matters to be remitted to the medical appeal tribunal.