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[1997] UKSSCSC CSIB_72_1996 (20 October 1997)

R(IB) 4/98

Mr. D. J. May QC CSIB/72/1996

29.10.97

Tribunal practice - medical assessor - whether able to give evidence

The claimant applied for an award of incapacity benefit. The tribunal upheld the decision of the adjudication officer that the claimant had failed to satisfy the all work test. On the question of the activity of reaching and in particular, descriptor 9c ("cannot put either arm behind back to put on a coat or jacket"), the tribunal appeared to have based their finding of fact solely on a practical demonstration carried out by the medical assessor of putting on and taking off a jacket with an immobilised wrist. It was also evident from the claimant's submission and from the chairman's note of evidence that there had been a dialogue between the medical assessor and the claimant. Further, it transpired that the medical assessor had previously assessed the claimant for disability living allowance. The claimant appealed to the Commissioner.

Held, allowing the appeal, that:

the authorities dealing with the role of assessors (see R(I) 14/51 and R v. Deputy Industrial Injuries Commissioner, ex parte Jones [1962] 2 All ER 430) applied equally to medical assessors in incapacity benefit cases;

the function of the medical assessor was not to supply evidence but to assist the tribunal to understand the medical evidence. By entertaining evidence from the medical assessor, which went beyond his function, the tribunal erred in law;

the advice given by the Commissioner in paragraph 51 of R(I) 14/51 was approved;

since the tribunal had not been made aware that the assessor had previously examined the claimant, and since the matter had not been raised by the claimant at the hearing, no error of law had been demonstrated. It was open to the claimant to seek an adjournment which would be considered and determined by the tribunal.

DECISION OF THE SOCIAL SECURITY COMMISSIONER

My decision is that the decision of the social security appeal tribunal given at Falkirk on 7 June 1996 is erroneous upon a point of law. I set it aside. I remit the case to a freshly constituted social security appeal tribunal for a rehearing.

This case came before me for an oral hearing on 23 October 1997. The claimant represented himself. The adjudication officer was represented by Mr. Neilson of the Office to the Solicitor for the Secretary of State for Scotland.

The claimant appealed against the decision of an adjudication officer dated 26 February 1996. In that decision an adjudication officer reviewed a decision of an adjudication officer awarding invalidity/incapacity benefit from and including 14 September 1993. The revised decision was that for the period from and including 26 February 1996 the claimant is not entitled to incapacity benefit from and including that date. The full decision is set out on pages C and D of the bundle.

The claimant's appeal was heard on 7 June 1996. The unanimous decision of the tribunal was to disallow the appeal upon the basis that the claimant failed to satisfy the all work test.

The claimant has appealed to the Commissioner. The basis of his appeal is related to the conduct of the hearing. Mr. Neilson on behalf of the adjudication officer supported the appeal. One of the grounds of support was that the tribunal had failed to comply with the requirements imposed upon by the Social Security (Adjudication) Regulations 1995 in giving adequate facts and reasons for their decision. Having perused the findings and reasons I am satisfied that there is substance in that submission and that the tribunal erred in law. I consider that the tribunal were however, contrary to the submission of Mr. Neilson, entitled to accept the claimant's concession that he accepted the points awarded to him by the medical officer in respect of lifting and carrying and manual dexterity. However I am not satisfied that the tribunal have provided an adequate factual foundation for their decision in respect of the activity of reaching and the relevant descriptor in the case which is 9c:

"Cannot put either arm behind back to put on a coat or jacket."

There are no findings in fact in respect of the claimant's capacity to put either arm behind his back to put on a coat or jacket. The tribunal seem to have been impressed by a demonstration carried out by the medical assessor in relation to the assessor's ability to put on or take off a jacket with one immobilised wrist. As pointed out by Mr. Neilson the question was what the claimant could do rather than what the assessor could do.

That in itself would have been sufficient to have disposed of the appeal. The reason however I directed an oral hearing was to hear submissions in relation to the role of medical assessors in incapacity benefit appeals.

Regulation 21 of the Social Security (Incapacity for Work) Regulations 1995 directs that a social security appeal tribunal in hearing incapacity benefit appeals shall sit with a medical assessor. No direction is given by the regulation as to what the role of the assessor is.

In this appeal there were three matters relating to the assessor to which my attention was drawn.

First it was said by the claimant that the assessor conducted a practical demonstration for the benefit of the tribunal. That is borne out by the reasons for the tribunal decision. In the reasons the tribunal recorded:

"It was his [the claimant's] submission that he cannot put on a jacket without assistance from his wife. Dr. Rankin, [the assessor] whose right wrist was strapped immobilised it before demonstrating that it is possible to put on and take off a jacket with one immobilised wrist ... The tribunal have regard to Dr. Rankin's observations and assessment and they preferred the medical evidence to that of the appellant."

The second matter which was drawn to my attention was that the claimant, in his submission to me, said that he had been asked questions by the medical assessor. This is not confirmed by the chairman's Note of Evidence. There does however appear to have been a dialogue between the claimant and the medical assessor, which Mr. Neilson accepted. That dialogue is noted in the following way in the chairman's Note of Evidence:

"Appellant - cannot put arm in jacket and wife helps me dress need help with this.

PO - understand reaching being able to move arm and shoulder movement. No problem here with shoulder function. No hand or wrist movement.

Dr. Rankin - assume note involve use of hand. Reaching is reaching.

Appellant - need assistance to put on jacket - use wrist to catch sleeve.

Dr. Rankin - think it must be possible to try and put on a jacket with one stiff/immobile wrist. Reach behind put jacket on bad hand first and then good hand. Shoulder and elbow movement.

Appellant - I put my good hand in first and I have difficulty with this.

Dr. Rankin - it says reaching for rather than reaching and gripping.

Appellant - waiting for appointment with physio now."

The third matter which was drawn to my attention was that the claimant indicated that the medical assessor was the same doctor who assessed him for disability living allowance. That was not the subject of the submission to the tribunal. The claimant told me that the medical assessor had acknowledged him when he entered the room.

A number of authorities were referred to in respect of the duties and roles of assessors. I was referred by Mr. Neilson to R(I) 14/51 where the Commissioner in relation to assessors appointed by virtue of regulation 16 of the Determination of Claims and Questions Regulations pursuant to section 43(2) of the National Insurance (Industrial Injuries) Act 1946 said in paragraph 9:

"It is true that the sole function of assessors is to give the tribunal information and advice on the medical questions involved in the case including the effect and value of any medical evidence submitted by the claimant or the insurance officer. The assessor must not be regarded as a witness, for he cannot be cross-examined by the claimant or the local insurance officer (see per Viscount Simon, LC in Richardson v. Redpath, Brown & Co. Ltd 36 BWCC 259 at page 265). He is not a member of the tribunal and has no judicial powers or duties; the tribunal alone must decide all the issues in the case and must not accept the advice of its assessor on any medical matter unless they are satisfied that having regard to all the evidence in the case the advice is correct. It follows that it is preferable not to invite an assessor to give a direct opinion upon a crucial issue in the case, but Lord Dunedin's statement implies that this may sometimes be necessary; if this course is taken and the tribunal observe the rule that they must not accept the assessor's opinion unless they are satisfied that it is sound their procedure could not, in my opinion, be said to be incorrect. (In the present case the local appeal tribunal appear to have observed the rule for after recording the assessor's opinion they add that they are themselves of the same opinion.)

However, I think it will only be in exceptional cases that it will be necessary to take this course and that usually it will be found possible to elicit from the assessor the medical data from which the crucial inference can be drawn by the tribunal without inviting the assessor himself to draw the inference."

That passage appears to have approved by the Commissioner in an incapacity benefit appeal CIB/15220/1996.

The Commissioner in R(I) 14/51 in paragraph 51 went on to say:

"I desire to mention two further points:

(i) In my opinion it is not desirable that medical assessors should themselves question the claimant or other witnesses (medical or lay). The better course is for the chairman to invite the assessor to mention any question which he thinks should be put and for the chairman (if he agrees with the suggestion) himself to put the question to the witness. No doubt this procedure may cause some delay, but to allow the assessor himself to put the question has graver disadvantages. Questions put by an assessor (particularly to medical witnesses) may be expressed in language so technical as to be unintelligible to the tribunal and parties and the exchange of question and answer may develop into a technical discussion between the assessor and the medical witnesses which may prolong the proceedings without enlightening the tribunal.

(ii) It is usually desirable that before the tribunal begin to deliberate on their decision the chairman should summarise briefly the effect of any advice given to the tribunal by the medical assessor and should give the claimant and insurance officer (if present) an opportunity of commenting on that advice if they desire to do so."

I am inclined to the view that the advice given by the Commissioner in that passage is one which would be followed as a matter of good practice.

The other authority referred to was that of: R v. Deputy Industrial Injuries Commissioner Ex Parte Jones [1962] 2 All ER 430 at 434. There Parker C J said:

"The cases disclose a variety of statements as to the duties of assessors. We have been referred to the rather wide definition as to his functions given by Lord Loreburn in Woods v. Wilson, Sons & Co. Ltd. (6), and also to the speech of Viscount Simon, LC, in Richardson v. Redpath, Brown & Co. Ltd. (7). It is to be observed that, in the latter case, Lord Simon said with regard to an examination by the doctor of the workman concerned (8):

"But I cannot agree that this is within the scope of an assessor's legitimate contribution. Lord Loreburn's judgment in Woods v. Wilson Sons & Co. Ltd (9), puts the medical assessor's functions as high as they can properly be put. Lord Parmoor in that case (1), aptly defines the medical assessor's function as being "... not to supply evidence but to help the judge or arbitrator to understand medical evidence". Lord Parker concurred in this view."

In that passage, as I read it, Lord Simon is really saying, as Lord Parmoor did, that a medical assessor under the Workmen's Compensation Acts is to be treated in the sense of a medical dictionary, as someone who will help the tribunal to understand the medical evidence."

The assessors referred to in that case were assessors to the Commissioner appointed under and in terms of regulation 22(6) of the National Insurance (Industrial Injuries) (Determination of Claims and Questions) Regulations 1948. I consider that the analogy of a medical dictionary is apt and follow the authorities to which I was referred.

Mr. Neilson submitted that in this case the tribunal had entertained and had regard to the demonstration given by the medical assessor. It was his submission that the tribunal erred in law by giving him scope to do so. Mr. Neilson submitted that the medical assessor gave oral evidence in the case which he was not entitled to do. It was also Mr. Neilson's submission that the chairman's Note of Evidence made it clear that the medical assessor got involved in giving evidence but Mr. Neilson said it was not apparent what medical question was exercising the tribunal when he did so. It was Mr. Neilson's submission that there was no question for the medical assessor to answer in this case.

It is clear from the last sentence of the tribunal's reasons that in coming to their decision in respect of the relevant descriptor they had regard to the medical assessor's, as they put it "observations and assessment", in coming to their decision.

I am satisfied that it has been shown that the assessor went beyond his functions. The practical demonstration was in my view clearly evidence rather than information and advice. I am also satisfied that, while it is not established that he asked the claimant questions, he entered into a dialogue with him and expressed his views on matters other than information and advice on medical questions. For example he is recorded as having said:

"It says reaching for rather than reaching and gripping."

That would appear to be related to the terms of the descriptor itself rather than any advice on medical questions. There is also no record of specific advice having been sought from the assessor by the tribunal. The import of what the claimant submitted, and this can be inferred from the record of proceedings, is that the assessor entered into the conduct of the proceedings and volunteered evidence. I am therefore satisfied that the tribunal erred in law by entertaining evidence from the assessor which was beyond the functions of an assessor and by taking it into account when making their decision. As Mr. Neilson correctly pointed out the medical evidence in the case is that of the examining medical practitioner.

Thus for these reasons also the tribunal decision is set aside.

I do not consider that the claimant has demonstrated any error in law on the part of the tribunal in proceeding with the appeal with an assessor who had previously examined the claimant for disability living allowance. The tribunal were not made aware of this fact and accordingly cannot be said to have erred in law by proceeding with the appeal. It seems to me that if such a situation arises it would be incumbent upon a claimant to raise the matter with the tribunal. If he consented to proceeding with the appeal with that assessor then I do not consider that any later objection could be entertained. If however he was unhappy with such a situation it would be open to him to make a motion to adjourn which the tribunal could consider taking into account the underlying principle of fairness.

The case now goes before a freshly constituted tribunal. It will be open to the claimant to lead such evidence and make such submissions as he wishes before that tribunal. It will be open to him if he sees fit to raise the question in respect of manual dexterity which he sought to raise before me. The freshly constituted tribunal should have regard to the content of this decision. In addition they should have regard to follow what was said by the Commissioner in paragraph 11 of CSIB/324/1997.

The appeal succeeds.

Date: 29 October 1997 (signed) Mr. D. J. May QC

Commissioner