UK Social Security and Child Support Commissioners' Decisions

 


Commissioners' File no: CDLA/1854/2002

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. I dismiss this appeal.
2. The claimant appeals with the leave of the Commissioner against the decision of the Sunderland tribunal of 29.1.02 that he was not entitled to Disability Living Allowance.
3. The claimant who was born on 10.10.39 made a claim for Disability Living Allowance which fell to be treated as made on 30.5.01. A short report was obtained from his general practitioner and a longer one from Dr Postlethwaite an examining medical practitioner. A decision maker acting on behalf of the Secretary of State decided that the claimant was not entitled to an award. The date of that decision which is important because of the effect of s.12(8)(b) Social Security Act 1998 was 27.7.01.

The claimant's representative sought review of that decision. On 24.9.01 another decision maker declined to do so and the claimant appealed to the tribunal.

4. The appeal was heard at Sunderland on 29.1.02. The claimant attended and gave evidence. He was represented by an officer of the Social Services Department of the local authority who indicated that she did not wish the tribunal to consider the care component of Disability Living Allowance. The tribunal's decision was that there was no entitlement at all from the date of claim and leave to appeal was sought. That application was refused by the District Chairman but granted by the Commissioner who directed observations from the Secretary of State. The Secretary of State requested that the appeal be dismissed in a submission of 13.6.02. The claimant's representative was offered the opportunity of commenting further but did not do so.
5. The representative wrote:

"The tribunal have given no clear reason as to why they do not consider that the GP is also a person skilled in making such assessments. We believe that Commissioners decision CDLA/2414/1997 is relevant in this instance."

I do not think that the tribunal has made an error in this respect. It was not suggested that the general practitioner was skilled or experienced in disability medicine and it is certainly no criticism of him that that be the case. General practice of medicine is a very different thing from assessing the nature and extent of disability. Of course, for all I know, the general practitioner might have acquired such skills or, indeed, he might have acted as an examining medical practitioner himself. Had that been the case then it would have been something that the representative should have put before the tribunal. In the absence of any such indication the tribunal were entitled to take the view that they did.

6. The representative continues:

"It should be considered that it is not fair play to appear to take the stand that the EMP is the only person who can be disinterested and unbiased for if we were to follow that conclusion then where is the value of an independent right of appeal if the tribunal feels they have to follow the EMP."

This criticism is misplaced. The tribunal did not suggest that the general practitioner was biased or in some way interested in the outcome of the proceedings. They explained why they preferred the opinion of Dr Postlethwaite and set out the clinical findings upon which they relied. I have as requested considered both R(S) 4/82 and CDLA 4752/1997. The latter does not support the proposition that a general practitioner has similar "independence expertise" to an examining medical practitioner. I suspect that the word "and" has been omitted but that does not help. The tribunal has not suggested that one doctor was more independent than the other and I have already dealt with the issue of expertise above. I am afraid that I do not see how R(S) 4/82 assists the claimant in this case. It is not a breach of natural justice that a tribunal should prefer the evidence of one party to that of the other.

7. I have considered whether the tribunal has adequately explained why they rejected the evidence of the claimant himself. Certainly, the Chairman might have said more than he did. On the whole, however, it is quite plain that the tribunal did not believe what the claimant had said and there is no error of law in avoiding adding unnecessary insult to injury.

Stuart McLachlan

Deputy Commissioner

[Signed on original on date shown] 9.8.02