UK Social Security and Child Support Commissioners' Decisions

 
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. My decision is that the decision of the Liverpool appeal tribunal, held on 13^th December 2001 under reference U/06/071/2000/01716, is not erroneous in point of law.

The appeal to the Commissioner

2. This is an appeal to a Commissioner against the decision of the appeal tribunal brought by the claimant with the leave of a district chairman of tribunals. The Secretary of State supports the appeal.

The history of the case

3. This case concerns the assessment of the claimant's disablement as a result of prescribed disease A11. His appeal was originally heard on 12^th October 2000. The decision was set aside by Mr Commissioner Mesher in CI/900/2001. The rehearing took place on 13^th December 2001. The appeal against the decision at that rehearing is now before me.
4. The issue for the rehearing was the nature and extent of the claimant's disablement. The tribunal proceeded in this way. It first set out the previous assessments that had been made and identified why each was in some way unsatisfactory. The tribunal considered the documentary medical evidence. It conducted a medical examination. It remarked that the claimant's manual dexterity was largely intact. I assume that that was a conclusion based on the clinical findings. It then reported that it had considered the claimant's disability in the light of the general tenor of suggested assessments in Schedule 2 to the Social Security (General Benefit) Regulations 1982. Finally, it applied its judgment to arrive at a degree of disablement expressed as a percentage of 8%.

Adequacy of reasons in assessment of disablement

5. The Secretary of State has argued that the tribunal's decision was wrong in law, because it did not give adequate reasons for its assessment, relying on my decision in CI/499/2000, paragraphs 20 to 23. The Secretary of State argues that the tribunal made no reference to important features of the prescribed disease – its episodicity, its dependence on temperature and its limitation to the fingers.
6. The legal standard by reference to which disablement must be assessed is that of the normal physical and mental condition for someone of the claimant's age and sex. A tribunal can be taken to know that this is the standard, unless there is something to indicate that it misdirected itself in law. This does not mean that it is not useful or appropriate to set it out in order to help the claimant understand the tribunal's reasoning and conclusions.
7. On the application of the standard, it is no longer acceptable for tribunals to state a few clinical findings and then pronounce a percentage disablement. The tribunal must, of course, use the expertise of the medically qualified panel member. The assessment will also involve an element of judgment. The exercise of both professional expertise and judgment may be difficult to explain. As Mr Commissioner Mesher commented in CI/7030/1999, paragraph 12:

'The MAT went on to assess disablement at 10%. Often such assessments are a matter of impression in the light of the professional expertise of the medical members of the appeal tribunal. Therefore the reasoning behind the assessment often cannot be unpacked very much.'

8. Historically, this may explain why the reasons given by medical appeal tribunals differed from those given by social security and disability appeal tribunals. They were far shorter and contained less (or no) explanation of the tribunals' reasoning. However, expertise and judgment are no longer magic formulae by use of which tribunals can, like some judicial Harry Potter, envelope their decisions with protection from being in error of law. More is now expected of the appeal tribunals in their disablement benefit jurisdiction. And, to be fair, more is usually provided. I hope that the following will give some guidance to the tribunals in explaining how an assessment of disablement has been made.
9. The starting point must be findings of facts as the nature and extent of the claimant's disablement. This provides the foundation for the tribunal's assessment of disablement. The precision with which a tribunal can explain that assessment will vary.
10. In some cases, it will be possible to be very precise. For example: if the case involves to one of the assessments indicated for the amputations set out in Schedule 2 to Social Security (General Benefit) Regulations 1982, it may be possible to explain (say) why an extra 1% has been added to the suggested assessment to reflect the bad scarring at the amputation site.
11. In other cases, it will not be possible to explain an assessment with the same precision. For example: if the case involves depression, it may not be possible to explain (say) why an assessment of 30% was made rather than 35%.
12. However, in cases where precision is not possible, the tribunal should give a general indication of why the assessment was made in a particular range. This might be done by pointing to the limited extent of the claimant's disabilities. For example: a person with prescribed disease A11 has disabilities that are not only limited to the fingers, but are intermittent and dependent on temperature. Or it might be done by pointing to the positive aspects of the claimant's life, despite the abilities. For example: a person with agoraphobia, although confined to home, might lead an otherwise fulfilling life.
13. It may also be possible to compare the claimant's disablement with one of the suggestions for amputations in Schedule 2. For example: the intermittent disabilities associated with prescribed disease A11 might be compared with those associated with the complete loss of an index finger.
14. What I have written so far may appear to be a counsel of perfection. There is no reason why tribunals should not strive to attain that standard. However, the legal test of error of law is adequacy of reasons, not of perfection.
15. In assessing adequacy, Commissioners make reasonable and realistic assumptions about how the tribunal approached its decision.
16. First, Commissioners accept that some things do not need to be stated. I have already mentioned the legal standard. The obvious features of medical conditions can also usually be taken for granted. In this case, the features of prescribed disease A11 referred to by the Secretary of State are so obvious (even to the claimant) that I would not accept that the tribunal failed to take them into account, unless there was something to indicate that this had happened.
17. Second, Commissioners recognise that some things either cannot be explained beyond a particular point or would require a thesis on medicine or anatomy. In many cases, the significance of the clinical findings fall under this head. This does not mean that they can be left to speak for themselves, which they do not. It means that only so much can be given by way of explanation. In this case, I take the reference to the claimant's manual dexterity being largely intact as the tribunal's attempt to convey the effect of its clinical findings.
18. My conclusion is that the tribunal has adequately explained how it made its assessment of the claimant's disablement. If it leaves anything open to doubt, it is why the assessment was as high as 8%. That, however, is in the claimant's favour.

Natural justice

19. The claimant's grounds of appeal compare the tribunal's decision with previous assessments. In particular, he complains that there was a breach of natural justice in the tribunal's failure to use equipment to test his grip. What the medically qualified panel member did was to ask the claimant to grip his fingers. That does not involve a breach of natural justice. It is for the tribunal to decide whether an examination is needed and, if an examination is carried out, how to do it. Its choice of method was a matter for its judgment.
20. Anyway, there is no need for special equipment to test grip when the issue is the disablement. The tribunal had to determine the extent of the claimant's effective grip for the purpose of undertaking the activities of everyday life. Its choice of method was an obvious and convenient way to do that.

Conclusion

21. I dismiss this appeal. The tribunal could, no doubt, have given a fuller explanation of its assessment, but the explanation that it gave is sufficient for the claimant to understand, if he reads the reasons fairly, why the tribunal made the assessment that it did. There was no breach of natural justice.

Signed on original

Edward Jacobs Commissioner 14th June 2002