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[1999] UKSSCSC CIB_76_1999 (06 August 1999)

CIB 76 1999

DECISION OF THE SOCIAL SECURITY COMMISSIONER

I allow the appeal.

The appellant is appealing with permission of the Commissioner against the decision of the Ashton under Lyne appeal tribunal on 13 May 1998 that the appellant was not entitled to incapacity benefit from and including 16 December 1997.

For the reasons below, the decision of the tribunal is erroneous in law. I therefore set it aside. I refer the case to a freshly constituted tribunal to determine the appeal in accordance with this decision.

There was an oral hearing of this case on 27 September 2000. The appellant was represented by Mr Dave of the Welfare Rights Service of Tameside Metropolitan Borough Council, and the Secretary of State by Mr Heath of the Office of the Solicitor to the Department of Social Security. Because Mr Dave raised new issues at the hearing of which Mr Heath had no notice, he asked, as he was fully entitled to, for further time to respond to any relevant points. I therefore issued a direction on 4 October 2000 setting out issues about the new points, and inviting submissions from both parties.

CSDLA 1019 1999

It appeared from those submissions that was common ground with points being argued before a Scottish Tribunal of Commissioners in CSDLA 1019 1999. That is the case in which an appellant challenged the fairness of a tribunal one member of which was also a medical practitioner retained by a contractor to the Benefits Agency to report on benefit claimants. That being so, I thought it right to delay my consideration of this case until that decision had been made. While the decision in that case (that an objective bystander, informed of all the circumstances, would have a reasonable apprehension of bias on the part of the medical member of the appeal tribunal) is not directly relevant, the Tribunal spent time analysing the standing of medical practitioners making official medical reports, and also of the status of those reports. Some of that reasoning was not strictly necessary to the decision, but it was based on full argument and should, in my view, provide the starting point for any analysis of related questions such as those in this case. The decision was signed on 15 June 2001. I must also note that that is a Scottish case, and there is now a separate national health service in Scotland to that in England (and to that in Wales). In so far as I comment below on issues related to the National Health Service, it is to the English Service, and I must not be taken as commenting on whether the same provisions apply in Scotland as I have not considered that.

Background to the appeal

The appellant was awarded invalidity benefit in 1988, later replaced by incapacity benefit. An adjudication officer revised this decision with effect from 16 December 1997 to stop award of benefit. The examining medical officer's report confirmed no physical limitations and no mental health problems. The appellant appealed on the grounds that the officer had not taken proper account of the pain she suffered, and that the onus of proof was on the officer to show that the appellant was not entitled to benefit.

The decision of the tribunal

The tribunal dismissed the appeal. Its statement dealt separately with sitting, rising from sitting, walking, stairs, standing, bending and kneeling. It noted that the separate issues of use of hands, reaching and lifting and carrying were not pursued at the hearing. It dealt specifically with evidence from the general practitioner. It reached the conclusion that the appellant was limited in her ability to walk to about 400 metres, sometimes could not rise from sitting or bend and kneel, and had some problems with stairs.

Grounds of appeal

The appellant's grounds of appeal were set out at length. I do not propose to go through all the issues raised in the written submissions, or at the oral hearing. Not only were some of the arguments internally inconsistent with each other, but in the result the appellant's case was argued to raise wide-ranging issues challenging the role of medical reports and of examining medical practitioners in the administration and decision making processes for incapacity benefit and, indeed, other benefits. Coming in the shadow of the powerful and important analysis in CSDLA 1909 1999 I concentrate only on the issues raised that are directly relevant to my decision, while noting the most important of the wider arguments.

The Human Rights Act

The review decision, the appeal from it, and the hearing of the tribunal, all took place before 2 October 2000. While (as I indicated in my direction) the matter was open to argument at the time of the oral hearing, it is now clear law that the Human Rights Act 1998 does not apply to review decisions or subsequent appeals from such decisions made before the full commencement of the Human Rights Act. It therefore does not apply here.

The medical evidence

The appellant, who was born in 1943, had been receiving benefit for many years when the current review started in 1997. The appellant claimed in the standard incapacity benefit questionnaire, signed in May 1997, that, as a result of osteoarthritis, menorrhagia, mild dyskalosis, and backache, she had multiple physical limitations including: unable to sit for long without moving, rise from a chair without holding on, bend and kneel, stand for long without sitting down, walk more than 50 metres without stopping or severe discomfort, climb stairs without holding on, turn a sink tap, raise one arm above her head, or pick up and carry a bag of potatoes with either hand. She also had occasional fits. A Med 4 confirmed her four disabilities. The examining medical officer in December 1997 only accepted part of the diagnosis given by the general practitioner. The officer did not accept that the appellant had any physical limitations or any mental health problems or life threatening conditions. The officer concluded: "Account grossly exaggerated. I could find no reason, on examination, why she would be unable to perform the above activities [referring to a summary of her problems with activities] as indicated." The adjudication officer accepted this and stopped benefit.

This is, in other words, a case where the views of the appellant and of the examining medical officer were about as far apart as they could be. The appellant's challenge to the tribunal decision about the medical evidence took, by the end of the case, many forms, but the key issues are:

• that the tribunal should not have preferred the examining medical officer's report to that produced by the appellant;

• that the DSS/Benefits Agency had stopped the appellant getting medical evidence from her general practitioner about her condition, while exceeding its powers in itself getting that evidence;

• that the adjudication officer was wrong to review her entitlement to benefit on the evidence produced.

I am not persuaded by the argument about review by the adjudication officer and I do not pursue that issue further. There was in my view good reason to review. Nor was I satisfied that the tribunal had erred in law in weighing up the evidence before it, save for one issue. The chief concern in this case is about contemporary medical evidence from the general practitioner to the Department that the tribunal did not see but, for the reasons I must explore at length, it should have seen.

Evidence from the general practitioner before the tribunal

The appeal papers contain a detailed letter sent by Mr Dave to the appellant's general practitioner in April 1998, and the general practitioner's brief reply. This confirmed the appellant's health problems, adding: "She tells me that she can only walk 50 yards with a stick and has difficulty climbing stairs and needs help with her housework." Mr Dave also submitted to the tribunal a copy letter of 20 March 1998 awarding the higher rate of the mobility component to the appellant from 9 February 1998 for life. Across the top of that letter (document 47A) is handwritten "[Claimant] was examined by [general practitioner] before he completed the factual report for disability living allowance." That factual report was not in the papers. The tribunal in its statement:

"noted the letter from the claimant's representative to his (sic) general practitioner dated 2.4.98 and the general practitioner's reply dated 17.4.98. The general practitioner had been asked to confirm the contents of the representative's letter but he had not done so but confirmed the diagnosis and merely repeated what the claimant had told him."

The tribunal does not further explain why it preferred the report from the examining medical officer to the report from the general practitioner, but the implications of the tribunal's comments are clear: the general practitioner was not directly supporting the appellant.

The tribunal gave no indication that it took any notice of the award of disability living allowance. It did not see any report following the examination referred to on document 47A. This may be because the appellant also had not seen the report at that time. It was produced by Mr Dave only after initial submissions to the Commissioners. It is now clear that in March 1998 (a few weeks before the letter from which the tribunal drew adverse conclusions) the general practitioner had been asked by the local social security office to supply, and had supplied, information about the appellant's ability to walk, grip, bend, rise from sitting, move around indoors, cope with pans and use an oven. It was in the form of replies to questions asked by the Benefits Agency, and was signed by the general practitioner. It appears to be related to entitlement to disability living allowance, although it does not say so. But its contents are directly relevant to this case. The most significant issue is that the general practitioner directly confirms, with some detail, that the appellant's ability to walk was limited to 50 yards.

That report puts the letter seen by the tribunal in a different light to that in which the tribunal viewed it. The general practitioner also confirmed several medical problems and that the claimant has a poor grip with her left hand, that bending and kneeling causes pain, that she can change from sitting to standing only slowly, and that she has difficulty with hot pans. This report is directly relevant to the decision of the tribunal. But it did not see it.

The general practitioner's report to the Benefits Agency

The report is on a standard form which states at the top:

• Your report - For Social Security purposes only

This is not a report to which the Access to Medical Reports Act 1988 applies. The Benefits Agency will show it to your patient in certain circumstances, but

your patient does not have to see it before you return it to us.

At the end, the general practitioner is asked to sign against a statement:

I understand that, in certain circumstances, this report will be released to my patient, their legal representative and any authority deciding an appeal in relation to their entitlement to benefit.

For this reason, the appellant and representative had no reason to know of the contents of the report when writing to the general practitioner unless the general practitioner had told them, and the general practitioner had no reason to tell them. Indeed, the implication of the wording is that the general practitioner is under no duty to, and should not, tell the patient. At the same time, the general practitioner, in replying to a local office of "the Benefits Agency" rather than any particular part of that Agency (in particular an office at the other end of the country) was given no indication from the address for reply or the standard wording that the Agency and tribunal would not use his March report when considering his April letter. In other words, when the general practitioner wrote the short letter seen by the tribunal, it would have been reasonable for him to expect the tribunal to have his previous report in front of it.

The Departmental view about reports from general practitioners

Because of other arguments raised by Mr Dave, the final submission for the Secretary of State set out fully the Departmental view about the duty of NHS general practitioners to produce reports for their patients and for the Benefits Agency. I set it out in full:

The Department's view established over a number of years and reconfirmed last year following correspondence with CPAG is:

• It is important that relevant medical information should be available to the BA decision maker as early as possible in the decision making process so that decision affecting the claimant's entitlement to benefit will be "right first time". In appropriate cases the DSS takes steps to obtain information from the claimant's general practitioner before a decision on benefit entitlement is made. NHS general practitioners are obliged to provide relevant clinical information to a DSS/BA Medical officer on request in relation to a patient's claim to a state incapacity benefit.

• Other benefit related reports are not covered by this obligation and general practitioners may charge a private fee (to the patient or DSS) for their services. The same principles apply to reports requested by the DSS of the Appeals Service in relation to an appeal against disallowance of benefit. However, the Government does not support the situation where a doctor charges their patient for medical evidence which should have been provided to the DSS/BA, without charge to the patient, at an earlier stage in the claim process.

• If a patient appeals against the adjudication officer / decision maker's original decision the general practitioner is under no obligation to provide a report, or to officer an opinion on capacity for work, to any party unless requested to do so by the BA [DSS Chief Medical Adviser's Bulletin - March 1996]

• It is the responsibility of the Secretary of State and/or tribunal to seek and pay for medical evidence if they do not already have sufficient information to enable them to reach a decision. It is for the benefit decision maker or tribunal to decide when and where it is necessary to seek and pay for such medical evidence

• The best approach for a claimant, or his adviser, is to bring to the attention of the decision making body that medical evidence form their own doctor should be sought in order to ensure that all the relevant information is put before the decision make or tribunal. Where the decision making body considers it necessary they will be responsible for seeking, and paying for, medical evidence if it has not already been provided. For this reason the Government does not encourage claimants to approach their doctor directly for additional medical evidence in support of a benefit claim or appeal.

• No claimant is required to pay for information that is requested and gathered by the DSS as part of an assessment of entitlement to a state incapacity or disability benefit. Some claimants/patients independently seek medical evidence from their general practitioner in support of a claim for benefit, particularly prior to an appeal hearing. NHS general practitioners are under no contractual obligation to provide such evidence to patients nor to provide it free of charge. If claimants do choose to seek evidence in this way then it becomes a wholly private matter to be resolved between the general practitioner and their patient.

In so far as this is a statement of government or departmental policy, it is useful to note it, but it is not for me to comment on it. In so far as it is a statement of the legal duties of general practitioners, it is (or should be) based on the duties of general medical practitioners that are set out in detail in the National Health Services (General Medical Practitioners) Regulations 1992 , Schedule 2 (Terms of Service for Doctors) ("the 1992 Regulations").

The terms of service

Regulation 3(2) of the 1992 Regulations provides that the arrangements for general medical services within the NHS (England) shall incorporate the terms of service in Schedule 2. That Schedule is lengthy, but the two key paragraphs of that Schedule for this case are:

Paragraph 37

Certification

(1) A doctor shall issue free of charge to a patient or his personal representatives any medical certificate of a description prescribed in column 1 of Schedule 9, which is reasonably required under or for the purposes of the enactments specified in relation to the certificate in column 2 of that Schedule, except where, for the condition to which the certificate relates, the patient

(a) is being attended by another doctor (other than a partner, assistant or other deputy of the first named doctor); or

(b) is not being treated by, or under the supervision of, a doctor.

(2) The exception in sub-paragraph (1)(a) shall not apply where the certificate is issued pursuant to regulation 2(1) of the Social Security (Medical Evidence) Regulations 1976 (which provides for the issue of a certificate in the form of a special statement by a doctor on the basis of a written report made by another doctor).

(3) [provides that certificates issued under various social security and related enactments shall be issued in accordance with regulations made under those enactments].

[Schedule 9 lists a range of special certificates, including certificates of incapacity for work issued under social security and related enactments.]

Paragraph 48

[ as replaced in entirety by SI 1998 No 682, regulation 12(c) with effect from 1 April 1998]

Reports to medical officers etc.

(1) A doctor shall, if he is satisfied that the patient consents, -

(a) supply in writing to a medical officer within such reasonable period as that officer, or an officer of the Department of Social Security on his behalf and at his direction, may specify, such clinical information as the medical officer considers relevant about a patient to whom the doctor under these terms of service has issues or has refused to issue a medical certificate; and

(b) answer any inquiries by a medical officer, or by an officer of the Department of Social Security on his behalf and at his direction, about a prescription form or medical certificate issued y the doctor under these terms of service, or about any statement which the doctor has made in a report under those terms of service.

(2) For the purpose of satisfying himself that the patient has consented as required by sub-paragraph (1), the doctor may (unless he has reason to believe the patient does not consent) rely on an assurance in writing from the medical officer, or any officer of the Department of Social Security, that he holds the patient's written consent.

Given the importance of evaluating whether the evidence of a general practitioner to a tribunal can be said to be "independent" in the same sense as that of a medical practitioner employed directly or indirectly by the Department, those conditions, and the contractual and professional obligations that lie behind them, warrant, in an appropriate case, the same careful analysis as that given to "Departmental" doctors in CSDLA 1909 1999. I was not offered the basis for such an analysis in this case, and restrict my comments to the specific points made in this appeal. But I must explore one aspect of the Departmental view set out above. The statement does not deal expressly with the problem that arose here, that is, with the case where the DSS/BA used its powers to ask a claimant's general practitioner for information directly relevant to more than one claim, but used that information for one claim only without disclosing the information (and without the general practitioner disclosing the information) to the claimant, or to any relevant appellate body, in connection with the other claim.

The appellant's consent to use of information

There is an additional element to the analysis of this problem, to which Mr Dave drew my attention. There is standard wording at the end of claim forms concerning disability benefits, which claimants are, in his words, "forced to sign". The wording obviously operates in conjunction with what is now paragraph 48(2) of the terms of service. The relevant wording for incapacity benefit is:

• I agree that the Department of Social Security, and any doctor advising the Department may ask

- any doctor who has treated me ...

for any information that is needed to deal with

- this claim for benefit ...

and that the information may be given to that doctor or the Department.

• I also understand that the Department may use the information which has now or may get in the future to decide whether I am entitled to

- the benefit I am claiming

- any other benefit I have claimed ...

Mr Dave also produced a standard disability living allowance claim form with similar wording. In this case, (whether she was forced to do so or not) the appellant had expressly signed that she understood that the medical information obtained by the Department in connection with her disability living allowance award might be used for her incapacity benefit claim, and the reverse, and she had agreed to this. This operates alongside paragraph 48 as set out above. So there was no reason in law why the general practitioner should not produce the information to the Department, or why the Department should not produce the general practitioner's report to the tribunal.

I do not pursue the issue of whether the consent was "forced" as Mr Dave strongly argued, as it was consent to the provision of current information from the general practitioner and it was, as things turned out, to the advantage not the disadvantage of the appellant that the consent was given and the report made.

The Department used its powers to obtain information from the general practitioner about the appellant's ability to walk and perform certain other functions. It had not indicated to the general practitioner why it wanted that information, and it had not told the general practitioner to pass on the information to the appellant. Nor was the general practitioner under a duty to do so under the terms of service or social security law. The appellant had consented, in standard form, to that information being used by the Department for any other benefit claim, and had been told by the Department that it might do this. Was it fair, in that case, for the Department not to use the information and, further, not to produce it to the tribunal? The most relevant aspect of the Departmental view set out about this above is that in the last paragraph but one. The matter should be brought to the attention of the decision making body by the appellant. This is precisely what the appellant did, by submitting document 47A.

The duty on the Department

The Department should, in my view, have produced the general practitioner's evidence to it to the tribunal in this case without the need for any specific request for it, if not before then once the appeal had been made and the issue of the award of disability living allowance had been raised. That is the only approach to this case consistent with the general duty of the Secretary of State in putting cases fairly to the tribunal, the statutory information powers within which the information was obtained, (so far as relevant) the Departmental policy as stated above (particularly that of discouraging claimants from approaching general practitioners), and the requirements of a fair hearing by the tribunal itself.

I say that for a series of reasons, all of which apply in this case, that cumulatively mean that this is the only fair approach to the appeal by the Department: because the evidence was sought by the local office not some other office elsewhere in the country; because it was sought at the same time, or about the same time, as the office was considering the incapacity benefit award; because the evidence produced by the general practitioner was directly and obviously on its face relevant to the claim under appeal; because the appellant had not seen it and so could not be expected to produce it herself; because there was no general duty on either the Department or the general practitioner to tell the appellant about the report when it was made; because there was nothing in the wording of the request for the report either to alert the general practitioner that the report would not be considered in connection with the current appeal, or to tell the appellant (when asked, as he was) that he had provided a report that was or might be relevant; because the appellant had consented to the information being obtained and, when obtained, used for any benefit; because the Department had indicated that the report might be so used; and because the appellant had no power similar to that of the Department to ask the general practitioner for that information under the general practitioner's terms of service.

Finally, in a review case such as this the burden of proof, as Mr Dave rightly observed, is on the Department. In discharging this burden before a tribunal, the Department is under a duty to put before the tribunal all the relevant evidence it holds of which the claimant is not otherwise aware, not merely a selection from it (whatever the basis of that selection).

The duty on the tribunal

The tribunal was shown clear evidence that the Department had recently awarded the higher rate of the mobility component to the appellant. This probably meant that the Department had accepted that the claimant was virtually unable to walk, strongly suggesting evidence that the claimant was unable to walk more than about 50 metres or so without stopping or severe discomfort. This was precisely the claim made by the appellant in stating her limitations for the all work test (document 9). The examining medical officer found "no problems with walking", meaning that the appellant, in the officer's view, could walk more than 800 metres without problems (document 29), justifying it by the generalised comment about exaggeration, but not by any specific clinical findings, observations or comments on functional ability. The general practitioner, as we have seen, supported the appellant's claim on this point, but in elliptic terms, in the letter seen by the tribunal. Should the tribunal have enquired further about the evidence on which the disability living allowance decision was based? In my view it should, at least to the extent of asking the parties about it at the tribunal, including the basis of the award of the higher rate of the mobility component. There is no indication in the record of proceedings or statement of reasons that it did so. If it had done that, it should have been told about the general practitioner's examination of the appellant and the subsequent report, and the report should have been produced. Had the tribunal seen that report, it would have had, at least, to take a different view of the weight to be accorded to the general practitioner's evidence. As it should, in my view, have seen that report either because the Department should have produced it, or the tribunal should have enquired into it, I take the view that the decision of the tribunal is erroneous in law and must be set aside.

Having set the decision aside for that reason, I need consider the appellant's ingenious arguments, and the Secretary of State's representative's lengthy responses, no further. However, I record that I intend no discourtesy to the representatives, particularly to the presentation by Mr Heath at the oral hearing, in not setting out those issues at further length.

I then considered if it was expedient for me to take the decision that the tribunal should have taken. There is now clear evidence that was not previously available to support the appellant's statement about her limitations. But I consider in this case it is better for the whole issue to be reconsidered by a tribunal with all the evidence (including the general practitioner's report of March 1998) available to it, and preferably with the appellant in attendance. I therefore refer the matter to a new tribunal to reconsider in the light of this decision.

David Williams

Commissioner

6 August 2001