UK Social Security and Child Support Commissioners' Decisions

 
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. My decision is as follows. It is given under section 14(8)(b) of the Social Security Act 1998.
2. 1. The decision of the Stockport appeal tribunal under reference U/40/125/2001/00528, held on 19^th February 2002, is erroneous in point of law.
3. 2. I set it aside and remit the case to a differently constituted appeal tribunal.
4. 3. I direct that appeal tribunal to conduct a complete rehearing of the issues that arise for decision.

The tribunal must answer such of these questions as are necessary to decide the appeal:

Did the accident result in a loss of faculty from and including 13^th February 2001?

What disabilities resulted from that loss of faculty?

Was there another effective cause of any of those disabilities?

What was the extent of the disablement resulting from the loss of faculty, applying if necessary regulation 11 of the Social Security (General Benefit) Regulations 1982?

What period is covered by the assessment?

Is the assessment final or provisional?

The appeal to the Commissioner

5. This is an appeal to a Commissioner against the decision of the appeal tribunal brought by the claimant with the leave of Mr Commissioner Bano. The Secretary of State does not support the appeal.

The history of the case

6. The claimant has suffered two industrial accidents. There is little information in the papers about the first accident, which took place (I believe) in 1989. This case concerns the second accident, which took place on 6^th April 1998. The claimant's disablement was assessed first at 10% and then at 20%. The 20% assessment was maintained through a series of reassessments until an examination on 9^th January 2001. As a result of that examination, the Secretary of State decided that the claimant had no remaining loss of faculty from and including 13^th February 2001.
7. The claimant appealed against that decision. As well as the medical assessment reports, the tribunal had reports from two Consultant Orthopaedic Surgeons, Mr Davies and Mr Muddu. In respect of the latter, the tribunal had the letter of request from the claimant's representative. The claimant attended the hearing, accompanied by his representative. He gave evidence and was examined. The tribunal confirmed the decision under appeal.

Did the tribunal go wrong in law?

8. Yes, it did. It went wrong in two respects. Independently and cumulatively they show that the tribunal's decisions was deficient in law in both its reasoning and in its explanation. A theme common to both mistakes is ambiguity and reliance on euphemisms in reasoning and explanation.

The significance of the findings on clinical examination

9. The claimant was examined. The results were recorded in the full statement of the tribunal's decision. They were:

'On examination at the hearing the Claimant was found to have some reduction of back movement but with some voluntary restriction in respect of those movements. The Claimant further demonstrated inappropriate signs when the simulated rotation test was carried out, which again indicated a degree of illness behaviour. There was some slight restriction of straight leg raising but no evidence of loss of power or sensation in the lower limbs. Finally, there was no muscle wasting.'

I have emphasised three expressions in those findings.

10. The first expression, voluntary restriction, is clear in its meaning. The medically qualified panel members found that the claimant did not move his back as much as he could and that, this is the important point, that the restriction was under his voluntary control. In other words, to the extent that the movements were restricted voluntary, they did not form part of his disablement.
11. The other expressions, inappropriate signs and illness behaviour, are less clear in their meaning. They may mean the same as voluntary restriction. They may also mean that the claimant is demonstrating a disablement that is not attributable to the normal process of injury or disease, but is a result of the claimant's mental reaction. In this latter sense, the behaviour is not within the claimant's conscious control. The same confusion arises with references to Waddell signs. These signs are often misunderstood both by tribunals and even by doctors who examine for the purposes of benefit entitlement. They are not signs of deliberate misrepresentation of disablement.
12. Broadly the physical disablement asserted by a claimant may be classified in one of three ways. (a) It may be entirely accounted for by the natural process of an injury or disease. (b) It may be accounted for, wholly or partly, by the claimant's mental reaction. (c) It may be, in whole or in part, the claimant's deliberate invention or misrepresentation. These are difficulty distinctions to draw in practice. But they have to be drawn in order to identify the disablement that is attributable to the accident.
13. The best practice for an appeal tribunal is to concentrate on the issues that are relevant to its decision and to analyse and explain its decision in terms directly related to those issues. For this type of case, as for all cases, this will help to maintain good quality decision making. The tribunal had to answer two questions in this case. First: is the claimant's purported disablement within his conscious control? Second: to the extent that the claimant's disablement is not within his conscious control, is it attributable by cause or contribution to the accident? Those are not easy questions to answer. But the task is not made easier by the use of euphemisms, still less by the use of ambiguous euphemisms.

The Consultants' reports

14. The tribunal concluded that the cause of the claimant's disablement had, by 13^th February 2001, become his degenerative disc disease rather than his accident. That was supported by the reports of Mr Davies. The tribunal gave two reasons for preferring those reports to that of Mr Muddu. One is inadequate and, in view of the doubt about the relationship between the two, that tarnishes the other.
15. One reason was:

'We did not feel able to prefer the report of Mr Muddu to that of Mr Davies, as requested, simply because it had been prepared for the purposes of the hearing.'

16. That reason is not a valid reason for rejecting evidence. If it were, it would lead to the rejection of any attempt by a claimant to produce evidence to counter that used by the Secretary of State. If it were applied to a civil claim for negligence, it would mean that the court would have to reject all the evidence produced by either party. The invalidity of this reason is not just a matter of pragmatism. It is a matter of principle. Evidence that is produced for a particular purpose is likely to be directed towards what is needed for that purpose. That is a strength, not a weakness. I suspect that this is another example of the resort to euphemism. Tribunals suspect evidence produced for the purposes of a hearing on the ground that the witness will be presenting the evidence partially to the claimant's advantage. That is a risk, but in the case of a professional witness, like a Consultant Surgeon, it is improbable. If one Consultant's evidence is favourable to the claimant and another Consultant's is not, the tribunal has to assess the quality of the conflicting evidence. It is not entitled to reject one report on the basis that it was prepared for the hearing while the other was not.
17. The other reason was:

'… we prefer the weight of the 2 reports of Mr Davies and the Adjudicating Medical Authority to that of Mr Muddu for no other reason, simply on the basis of the weight of evidence. … It seemed to the Tribunal that the estimate of Mr Davies [on how long the claimant would experience symptoms from the accident] was probably the best estimate in all the circumstances.'

18. This is a better reason that the first. If it were the only reason, it would be adequate. However, it is not the only reason. The tribunal gave two reasons, although it described both as those it were the only reason. That is how I interpret the use of the word 'simply'. The tribunal has given two reasons only one of which is valid. That leaves a doubt as to how the reasons related to each other. One of them is invalid and that undermines the other.
19. There is another problem with the tribunal's reasoning. It concluded that the accident was no longer the cause of the claimant's disablement. Given that, why was it necessary to make findings on the genuineness of the claimant's disablement? If they are relevant to the tribunal's conclusion on attribution, the tribunal did not explain how. If they are not relevant, their presence confuses the tribunal's explanation of its decision.

Summary

20. I allow the appeal and direct a rehearing.

Signed on original

Edward Jacobs Commissioner 17th September 2002