UKSSCSC CSDLA_856_1997 (01 May 1998)
Mr. D. J. May QC CSDLA/856/1997
Evidence - examining medical practitioner – whether evidence of an examining medical practitioner should normally prevail over a claimant's evidence
The claimant claimed disability living allowance on 29 January 1996. The claim was disallowed and the disallowance was not revised on review. The claimant appealed. At the request of a tribunal, a report was prepared in December 1996 by an examining medical practitioner. On 13 March 1997, the claimant's appeal was dismissed by the disability appeal tribunal who accepted the evidence of the examining medical practitioner, stating that he was "an independent examiner". The claimant appealed to the Commissioner, arguing that the examining medical practitioner was not independent as he was paid by the Department of Social Security, trained by the Department and open to be influenced by the "gloss" put upon the law by the Department. It was further argued that the tribunal failed to address the claimant's evidence of deterioration in the three months since the report.
Held, allowing the appeal, that:
- there was no indication in the findings or reasons that the tribunal had addressed the evidence of deterioration given by the claimant, and as they had not indicated whether or not it was accepted and whether, if accepted, it was considered to be immaterial to their decision, their decision must be set aside (paragraph 6);
- neither CDLA/692/1994 nor CM/361/1992 nor paragraph 7 of CDLA/148/1994 could be considered authority for the proposition that evidence from an examining medical practitioner must of necessity prevail over that led by the claimant (paragraph 11);
- such evidence might prevail in the majority of cases once the tribunal had carried out the weighing exercise that they were required to carry out but that did not mean that as a matter of course the examining medical practitioner's evidence must prevail because it would fly in the face of the obligation of a tribunal to consider the whole evidence in a case if they accepted one body of evidence on the basis that it must normally prevail over other evidence in the case (paragraph 11);
- in this case, the tribunal had not failed to weigh up the evidence as they were required to do because the examining medical practitioner had in effect indicated why there was a conflict between his assessment and the claimant's, the tribunal were right to accept that he was an independent examiner and, in those circumstances, they were not required to give any further explanation for accepting his evidence (paragraph 12).
The Commissioner referred the case to a freshly constituted tribunal.
DECISION OF THE SOCIAL SECURITY COMMISSIONER
"The tribunal accept the evidence of the EMP who is an independent examiner. In these circumstances the appellant does not meet the criteria for either Mobility or Care Component at any rate."
There is no indication in the findings or the reasons that the tribunal addressed the evidence of deterioration given by the claimant. It is not indicated whether or not it was accepted or if it was accepted whether they considered it to be immaterial to the decision which required to be reached by them. In these circumstances I consider that the second ground of appeal advanced by Mr. Orr in relation to this matter is well founded and properly supported by Mr. Armstrong. In these circumstances the tribunal decision is set aside.
"5. On the evidence of the EMP, there could be no question of the claimant's being virtually unable to walk. I am aware, of course, that the claimant contends that her walking ability is far less than that suggested by the EMP 'Overall, it is the sheer physical discomfort which limits my walking ability to around 30 yards'. However, where there is a conflict of evidence between the claimant on the one hand and the EMP, the latter will normally prevail. For the EMP is wholly disinterested, and has a medical expertise to determine properly what the claimant's walking ability amounts to. The tribunal were right to follow the opinion of the EMP rather than the claimant's own version of her condition. The claimant's own GP really took the matter no further. For, as the tribunal rightly stated, although he spoke he failed to particularise further. Moreover, a claimant's GP is not normally as disinterested as an EMP. He is likely to be subject to pressure from the claimant, in a way that an EMP never could be."
"Moreover they must assume, unless there is something to indicate to the contrary, that the medical authorities have taken into account all relevant medical considerations, and have given due weight to all the contentions of the claimant as to his or her medical condition. Further, as the tribunal cannot themselves test the claimant's walking capacity, normally they are in no position to give proper weight to further evidence presented to them by the claimant. Such evidence should have been produced to the medical authorities. If, however, they entertain the opinion that the new evidence might, had it been presented to the medical authorities at the relevant time, have influenced their decision, they should adjourn their determination, and seek a further report from one or more of the medical authorities. If, in the alternative, they consider that such evidence would, on the balance of probabilities, have had no practical bearing on the issue, then they can proceed to a final determination."
and 20% could be functional.
Since difficult to see reason for such a poor show in this somewhat anxious person."
In relation to the opportunity to make a general statement about the claimant's condition he said:-
"Mobility - findings would suggest walking should be better than this 30 yards in 10/15 mins.
Again findings do not support claim of slow dressing etc
Again difficult to see reason for frequent toilet attendance especially as she has not taken diuretics
- again latter would be indicated for breathlessness too - if genuine
- they were stopped
Also statement at times inconsistent"
It is thus clear that he himself formed a view in relation to the reliability of the history given to him by the claimant. It is the basis upon which the examining medical practitioner in effect indicates why there is a conflict between his assessment and the claimant. It was open to the tribunal to be persuaded by what was said by the examining medical practitioner or not. In the event in this case the tribunal were so persuaded and they made that clear in their findings and reasons. The conclusion they reached is perhaps not surprising. I consider that they were right to accept the examining medical practitioner as an independent examiner and I fully accept what was said by Mr. Armstrong about that. In these circumstances and from that standpoint it is my view that the tribunal did not need to say more by way of explanation than that. Accordingly I accept Mr. Armstrong's submission that the tribunal did not err in law in the manner suggested by Mr. Orr in his principal ground of appeal.
Date: 1 May 1998 (signed) Mr. D. J. May QC