UK Social Security and Child Support Commissioners' Decisions

[2000] UKSSCSC CIB_4497_1998 (07 January 2000)

 


CIB/4497/1998

DECISION OF THE COMMISSIONER

1. This is an appeal, brought by the claimant with my leave, against a decision of the Manchester social security appeal tribunal dated 6 May 1998, whereby they dismissed the claimant's appeal against the decision of an adjudication officer that she was not incapable of work because she did not satisfy the "all work test" because she scored only 9 points from mental descriptors. The appeal is brought on the ground that the tribunal gave inadequate reasons for their decision and it is supported by the adjudication officer (now the Secretary of State).
2. The claimant's first ground of appeal is that "clear and direct" evidence of seven descriptors, other than those accepted by the adjudication officer as being satisfied, was advanced before the tribunal and that, while the tribunal recorded the evidence, it cannot be seen to what extent the tribunal accepted the evidence or considered it important. It is true that the tribunal, who had stated on the decision notice that they accepted the evidence of the Benefits Agency Medical Service's doctor, merely recorded in their statement of reasons and findings the evidence of both parties and then stated:-

"On the basis of the evidence the tribunal confirmed the points awarded to [the claimant] by the BAMS medical officer."

However, that is perfectly acceptable as an explanation for a decision where, as is often the case, the claimant's evidence is not inconsistent with the medical officer's findings or is such that the medical officer's reasoning still adequately explains its rejection. What the claimant's representative has failed to do is to identify any point in respect of which the claimant's evidence was not consistent with the medical officer's findings or any point where the medical officer's reasoning did not explain the rejection of the claimant's case. Indeed, she has not even identified the seven descriptors she says are relevant. This is important in the present case because, while the claimant's evidence differed from the medical officer's findings of primary fact because it was more detailed, there was not much real inconsistency.

3. The adjudication officer's approach is equally unhelpful. She complains that the tribunal did not state whether or not they accepted the claimant's evidence and that they gave no specific decision in respect of the disputed descriptors. However, to the extent that the claimant's evidence was consistent with the medical officer's findings, it appears that the tribunal did accept it and the adjudication officer has not identified where the conflict was and, like the claimant's representative, has not identified the descriptors that might, in the light of the evidence, be regarded as having been in dispute.
4. The adjudication officer also refers to paragraph 9 of CIB/4013/97 in which the Deputy Commissioner said:-

"The claimant complains that the tribunal did not give an adequate reason for preferring the medical examiner's evidence to that of the claimant. I do not accept that complaint. The tribunal said:-

"Where there is some conflict of evidence then the Tribunal preferred the evidence of the Benefits Agency Medical Service doctor as this was obtained by a professional who was disinterested in the outcome and had applied a medical examination specifically designed in connection with the All Work Test ..."

In my view these reasons afford a perfectly adequate explanation of the tribunal's preference. The only qualification I would make to this view is that where some specific challenge is made to the accuracy of the medical examiner's report, it is incumbent upon the tribunal to deal with that challenge. In this case the chairman's notes of evidence indicate that a challenge was made by the claimant in that she complained that she had not said something that was actually recorded as having been said by the medical examiner. The tribunal should have dealt with that challenge and expressed a view on it, giving reasons for the view taken."

She submits that whenever a claimant claims to satisfy a descriptor which the medical officer found had not been satisfied, there is a challenge to the medical officer's report of the type anticipated by the Deputy Commissioner. That goes too far. In referring to a challenge to the accuracy of the report, the Deputy Commissioner was referring to the alleged inaccurate recording of the claimant's statements to the medical officer in that case which implied a challenge to the factual basis on which the doctor had expressed his opinion. There are doubtless other types of challenge the rejection of which might require a specific explanation by a tribunal. For instance, a challenge to a medical officer's reason for reaching a conclusion based on unchallenged clinical findings might have to be addressed specifically, although whether a failure to do so would render the tribunal's decision erroneous in point of law might depend on whether or not the doctor's reasoning was obviously sound. However, I do not consider that every rejection of a challenge to a medical officer's finding requires an explanation that goes beyond a statement that the doctor's evidence is preferred.

5. It cannot be overemphasised that there is no simple formula for writing reasons for a decision. The minimum requirements are that the unsuccessful party must know why his or her principal submissions have been rejected and that the process of the tribunal's reasoning must be sufficiently clearly outlined to avoid any reasonable suggestion that the tribunal have made an error of law. Obviously, the more clearly the reasons are expressed in the decision itself the better, but lack of clarity will not render a decision erroneous in point of law if the reasons can nevertheless be discerned with reasonable diligence from the decision and surrounding documents. A statement of reasons may be adequate even though it could have been improved and, in particular, a failure to observe the "best and safest practice" recommended in CSIB/324/97, to which the adjudication officer referred, is not necessarily an error of law. Those who assert that a tribunal's reasoning is inadequate must themselves explain clearly both the respect in which it is inadequate and why the inadequacy is of significance. It must be borne in mind that there are limits to the extent to which a tribunal is obliged to give reasons for reasons and to the extent to which they can be expected to give reasons for matters of value judgement. Furthermore, it is clear from R(A) 1/72 that it is not obligatory to deal with every piece of evidence and that, while "a decision based, and only based, on a conclusion that the total effect of the evidence fails to satisfy, without reasons given for reaching that conclusion, will in many cases be no adequate decision at all", that will not always be the case. What is required by way of reasoning depends very much on the circumstances of the particular case before the tribunal.
6. As I have said, in the present case, there was not a great deal of real inconsistency between the claimant's account and the medical officer's findings of primary fact and it is far from obvious to me which seven descriptors the claimant's representative considers were in serious dispute. However, as the claimant needed only one more point to succeed before the tribunal, I can determine this appeal by considering just one descriptor in respect of which it seems to me that the tribunal's reasoning was inadequate. The claimant suffered from depression. Descriptor 15(b) is satisfied if the claimant "often sits for hours doing nothing". The medical officer had given as the reason for deciding that the claimant did not satisfy that condition that she "does housework regularly". That reason begs a number of questions, such as "how much housework?" and "how regularly?" On the other hand, the medical officer may have had in mind, not that the claimant was busy with her housework much of the time, but that a person who can do housework as and when she chooses is unlikely to be a person who sits for hours doing nothing. The explanation he gave may have been acceptable until challenged, but it then required some elaboration. Before the tribunal, the point was expressly made on behalf of the claimant that she did not do the housework every day and that she spent the day sitting in a chair, sometimes watching television and at other times just resting as she felt very weak. It seems to me that descriptor 15(b) was thereby specifically put in issue, that the claimant had an arguable case with regard to that descriptor and that, in the light of the points made on behalf of the claimant, the explanation given by the medical officer was no longer an adequate explanation for finding that she did not satisfy that descriptor. That is not to say the tribunal were bound to decide the issue in her favour. In particular, there was evidence that the claimant's inactivity was due to her catching up on sleep lost at night, rather than mere "doing nothing" due to depression, and there were a number of activities the claimant did manage to do in an average week. However, the point was arguable and the medical officer's explanation did not adequately justify a rejection of the claimant's case. It was therefore incumbent on the tribunal to explain its rejection. Their failure to do so leaves open the possibility that they simply failed to address their minds to the relevant issues at all. Accordingly, I accept the parties' submissions that the tribunal gave inadequate reasons for their decision.
7. I will nonetheless consider the claimant's second ground of appeal because it raises issues of general importance. The decision notice issued on the day of the hearing included a summary of reasons which had clearly been typed beforehand as a standard proforma into which certain information specific to the case could be inserted in manuscript. It read as follows (with the inserted words in square brackets):-

"The tribunal have considered all the relevant evidence including [the claimant's evidence at the appeal hearing].

The tribunal on balance preferred the clinical findings and opinions of the doctor who examined the claimant on [22 December 1997].

They preferred this evidence because this doctor is medically and professionally qualified and trained and experienced in the assessment of the all work test whereas the claimant is not so qualified."

The claimant's representative submits that the approach suggested in the proforma was wrong. She submits:-

"Were it to be applied consistently, there would appear to be no point in asking a claimant for information or evidence because it would always be inferior to that of the BAMS doctor and we do not believe this is a correct application of the law. The AO's submission clearly sets out the case law and includes authority for the principle of accepting the claimant's work unless it is self contradictory. (R(I) 2/51 and R(SB) 33/85). The tribunal did not apply the law as set out, in our view."

The adjudication officer has not responded to that submission but, in response to a direction by a nominated officer, submits that a standard form of decision is acceptable in principle as long as sufficient reasons specific to the individual case are incorporated into it which, it is submitted, is not the case here.

8. Once again, there are flaws in the arguments of both parties. It cannot be suggested that the use of a standard form of decision is improper; the problem arises with a standard form of reasoning. In my view, a standard form of reasoning is legitimate provided that it is used only where appropriate. In practice, there are at least two reasons why the use of such a standard form is undesirable. The first is that the mere existence of a standard form may tempt a busy tribunal to use it when it does not really fit the case in hand. The second, amply illustrated by the view expressed by the claimant's representative in this case, is that the claimant cannot know how often the standard form is not used and so its use in a pre-typed form may give the impression of cases being prejudged against claimants. As the claimant's representative submits, if the same reasoning used here were applied in all "all work test" cases, how could any claimant ever succeed ?
9. That is not to say that a medical officer's professional expertise may not be a good reason for preferring his or her evidence to that of a claimant in some cases. The claimant's representative is wrong to suggest that a claimant's evidence should be accepted unless it is self contradictory. R(I) 2/51 and R(SB) 33/85 are authority for the proposition that the claimant's evidence may be accepted even though it is not corroborated, but there are many reasons other than self-contradiction why a claimant's evidence might not be accepted, one of which is that it may be contradicted by more compelling evidence from another witness such as a medical officer. A tribunal are entitled to have regard to a doctor's professional expertise when considering whose evidence to accept. On the other hand, there are cases where a tribunal may prefer a claimant's evidence to that of a medical officer because, for instance, of the manner in which the claimant's evidence is given and the fact that the claimant has first hand knowledge of his symptoms and the medical officer does not. The truth is that all the evidence must be considered in each case and weight given to it as appropriate, bearing in mind the circumstances and the real points in dispute.
10. I therefore do not accept the claimant's representative's submission that the summary reasons themselves betray an error of law in the tribunal's approach to this particular case. As far as they went, they were acceptable. Nevertheless, I consider the use of proforma reasons to be unwise. In general, they create an unfortunate impression and, in the present case, it seems to me that the summary reasons given on the decision notice were, at best, unhelpful, given the issues raised at the hearing. They did not begin to explain why the claimant had been unsuccessful.
11. On the other hand, I also reject the implied submission of the adjudication officer that the unhelpfulness of the summary reasons is material to this appeal. Assuming that regulation 23(2) of the Social Security (Adjudication) Regulations 1995 (since replaced by regulation 53(2) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999) gave the President power to approve a form of decision notice which required there to be given summary reasons for the decision (as I consider that it did), I regret that I am unable to agree with the decision in CIB/668/98 where it was held that a failure to give a proper reason in a decision notice rendered a decision liable to be set aside on appeal. Until 1996, a tribunal chairman was required by regulation 23 of the 1995 Regulations to record detailed findings of fact and reasons in every case. When regulation 23 was amended, it required that only a decision notice had to be issued in every case. A full statement of findings and reasons was to be issued only if a party requested one during the statutory period or the chairman decided of his own motion that one should be issued. There is no reference in the legislation to summary reasons. The requirement to give such reasons arises simply from the form of decision notice approved by the President. In CIB/668/98, the Commissioner said:-

"A summary which is too brief puts the claimant to the trouble of applying for a full statement of the tribunal's findings in facts and reasons for decision in order to obtain even the minimum notion of why the tribunal decided the case as it did. That seems to me to defeat the purpose of the introduction of summary decisions which is, I understand, savings in time and resources by relieving tribunal chairman of the need to record detailed findings in fact and reasons for decision in cases which neither the claimant nor the adjudication officer requires such detail."

It is true that the giving of summary reasons may reduce the number of requests for full statements so that a failure to give adequate summary reasons may defeat the President's purpose. However, the purpose of the legislation is likely to be defeated if the terms of summary decisions are subjected to detailed scrutiny by Commissioners.

12. It must be in the nature of summary reasons that they are incomplete; otherwise I have some difficulty in conceiving what difference there could be between the standard of adequacy required for summary reasons and the standard of adequacy required for full reasons. The legislation provides a remedy for a party dissatisfied with the incomplete reasons given on a decision notice and it is equally efficacious if no summary reason is provided at all. That remedy is the request of a full statement of the tribunal's findings and reasons. If such a request is made, the issue on an appeal to a Commissioner is whether that full statement is adequate and it cannot matter that the summary reasons were deficient. If no request is made, the party has lost his or her remedy through his or her own inaction and it cannot be expected that there should then be an inquiry as to the adequacy of reasons that were never intended to be complete. If a decision were liable to be set aside because the summary reasons were inadequate (as opposed to being bad - see CIS/3299/97 and CIB/4189/97 (to be reported as R(IS) 11/99) at para. 8), it would have the effect that those who failed to request full statements would be placed in a better position than those who did make such requests, unless appeals on that ground were allowed even when the defect had been cured by the provision of an adequate full statement. Either result would be absurd. Furthermore, one consequence of too much scrutiny of summary reasons would inevitably be that the summaries themselves would become far more detailed and take longer to write. That might lead the President to cease to require even summary reasons to be given on decision notices and it seems to me that that would be a retrograde step. Whether or not the giving of summary reasons in every case in fact reduces the number of full statements that are requested, it improves the quality of justice.
13. In my view, the scheme of the amended 1995 Regulations is clear. The duty to give adequate reasons arose when a full statement was issued under regulation 23(3A) or was requested under regulation 23(3C). The giving of reasons on a decision notice issued under regulation 23(2) was good practice required by the President but a failure to give any, or any adequate, reasons on the form approved by the President was a mere irregularity and was not itself an error of law rendering a decision liable to be set aside on appeal. The same scheme appears in the 1999 Regulations. The remedy for a party dissatisfied with a lack of reasons on a decision notice is a request for a full statement of the tribunal's findings and reasons. Such a request was made in the present case and this appeal is allowed because the full statement was not adequate. The unhelpfulness of the proforma reasons used in the decision notice is immaterial.
14. One further point on this appeal was raised by a nominated officer who asked what weight was to be given to the medical assessor's advice that the drugs which the claimant was taking could make her drowsy in the morning. The adjudication officer has replied to the effect that the weight to be given to the advice was a matter for the tribunal. That is plainly correct. I suspect that the nominated officer meant to ask what relevance the advice had. Neither party has addressed that question. Furthermore, the answer would depend very much on what was in issue before the tribunal and, as I am not really sure quite what was in issue, the best I could do would be to provide an answer in the abstract, which would probably not be helpful. Therefore, as it is not strictly necessary for me to consider the question, I shall not do so.
15. I allow the claimant's appeal. I set aside the decision of the Manchester social security appeal tribunal dated 6 May 1998 and I refer the case to an appeal tribunal, constituted under regulation 36 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 from panel members who were not members of the tribunal whose decision I have set aside, for determination.

M. ROWLAND

Commissioner

16. January 2000