UK Social Security and Child Support Commissioners' Decisions

[2003] UKSSCSC CI_483_2003 (22 July 2003)

 


CI/483/2003

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. I grant the claimant leave to appeal and I allow his appeal. I set aside the decision of the Wakefield appeal tribunal dated 27 September 2002 and I refer the case to a differently constituted appeal tribunal for determination.

REASONS

2. I held an oral hearing of this appeal at which the claimant was represented by his son-in-law and the Secretary of State was represented by Ms Deborah Haywood of the Office of the Solicitor to the Department of Health and the Department for Work and Pensions.
3. The claimant claimed disablement benefit in respect of prescribed disease A12 (carpal tunnel syndrome) on 30 October 2001. His claim was disallowed on the ground that he was not suffering from the prescribed disease. The claimant appealed. On 27 September 2002, his appeal was dismissed. The statement of reasons sets out the claimant's evidence, which the tribunal appear to have accepted, and continues –

"9. The Tribunal, in reaching their decision, have considered the knowledge that they have from sitting on these Tribunals as to the cause, diagnosis and symptoms in respect of Carpal Tunnel Syndrome. They also have benefit of access to medical information including the Oxford Handbook of Clinical Medicine which was referred to earlier in this statement of material facts and reasons. They, in this case, also have the benefit of literature supplied by the Appellant as to a description of Carpal Tunnel Syndrome and its causes.

10. The factors that have led this Tribunal to their decision that this Appellant is not suffering from PDA12 Carpal Tunnel Syndrome are that:-

(a) it is noted that the Appellant has had two surgical decompression operations in respect of both hands in August and September 2001. In his evidence to the Tribunal, the Appellant had stated that these operations have not improved his condition in any way in either hand but he feels that since the operation his condition has deteriorated.

(b) it is noted that all tests for Carpal Tunnel Syndrome that were carried out prior to his operation were found to be negative.

(c) the symptoms and signs as described are not restricted in the Appellant's case to the areas of the median nerve supply."

11. Having regard to the above factors, the Tribunal are not satisfied that the medical evidence confirms that the Appellant is suffering from PDA12 (Carpal Tunnel Syndrome). In the Tribunal's opinion sensory-neural damage will be playing a part in the symptoms which the Appellant exhibits which have been recognised in the PD A11 award, the papers for which are with the papers before the Tribunal and are of assistance to this Tribunal in enabling them to understand the problems that the Appellant is encountering and suffering from."

4. The claimant applied for leave to appeal on the ground that the tribunal "has produced no evidence and not given adequate reasons to support its decision". Lengthy arguments, which I need not reproduce here, were advanced, seeking to demonstrate flaws in the tribunal's reasoning by reference to a report entitled "Electrodiagnostic techniques in the pre-surgical assessment of patients with carpal tunnel syndrome" (ISBN No. 0704421399). A full-time chairman refused leave to appeal and the claimant then applied to Mr Commissioner Williams, who issued a direction, saying –

"2. In his grounds of appeal the claimant raises technical issues about the disease and the basis on which the tribunal reached its decision. It is not entirely clear if these issues raise issues of law about the diagnosis of the disease or the handling of the appeal by the tribunal.

3. The Secretary of State is directed to make a submission on this appeal with reference to the grounds of appeal put forward for the claimant. The Secretary of State is invited, if it is considered appropriate, to indicate any general medical considerations relevant to the decision and the grounds of appeal against it."

The Secretary of State's representative submitted that the arguments advanced by the claimant raised medical questions rather than questions of law. As an appeal lies to a Commissioner only on a point of law, he submitted that leave to appeal should be refused. However, he also submitted a memorandum from Dr Susan Reed, a medical advisor in the Department for Work and Pensions, indicating that, while there were points supporting the claimant's case, there were other points against it and her view was that, on balance, the tribunal had reached the right conclusion. There were then further exchanges between the parties and Mr Commissioner Henty granted the claimant's request for an oral hearing. At the hearing, both parties gave their consent in writing to the application being treated as the appeal.

5. With respect to the claimant's son-in-law, who has a medical background rather than a legal one, it seems to me that the claimant's grounds of appeal are misconceived. It is not for a tribunal to produce "evidence". What the chairman must do is produce an adequate statement of reasons for the tribunal's decision. In my view, the chairman has in this case plainly done just that. An appeal to a Commissioner lies only on a point of law. A Commissioner has no power to overrule a tribunal because he takes a different view on a question of fact or medical opinion. Even if a tribunal's decision appears inconsistent with other medical opinion, a Commissioner cannot interfere unless the tribunal have erred in law. I accept that there can be an error of law if a tribunal's reasons fail to address specific points made to them or if there is a flaw in the internal logic of a decision, but I can see no such error in the present case.
6. However, there is a procedural issue. The medical report on which the Secretary of State had relied had contained only fairly rudimentary reasoning (doc 14). The claimant had produced in evidence a letter from his general practitioner, stating that he had been under the care of a consultant who had felt that his symptoms were consistent with carpal tunnel syndrome. I accept Ms Haywood's point that there is no firm statement that that view was still held by the consultant but there is also no indication in the letter that either the consultant or the general practitioner had changed their minds. Certainly the claimant had the support of the general practitioner in his appeal and appears to have been unaware of any change of view on the part of his medical advisers. At the hearing before me, I drew the parties' attention to Evans v. Secretary of State for Social Security (reported as R(I) 5/94), where Neill LJ, with whom Nolan and Evans LJJ agreed, said (at page 185 of the bound volume) –

"It is of course true that in the end it is the findings of the medical appeal tribunal which are decisive, but it seems to me profoundly unsatisfactory that, when one is dealing with a long standing condition, an appeal should be rejected if there is a real risk that the same clinical findings may be interpreted differently by two experts. In such a case I consider that he fairness points to the need for an adjournment so that, where possible, the tribunal's provisional view can be brought to the attention of the claimant's own advisers. In the absence of such a procedure the claimant is left in the dark. With some hesitation therefore I would quash the decision in Mrs Evans' case also."

The facts of Evans appear to be on all fours with those in the present case. It follows that the tribunal in the present case erred in law in not offering the claimant the opportunity of an adjournment so that their provisional view, with its reasons, could be put to the claimant's medical advisers. On that ground, I grant leave to appeal and allow the appeal.

7. The claimant now has the reasoning of the last tribunal and also the reasoning of Dr Reed. It is open to him to put the views expressed by the tribunal and by Dr Reed to his consultant and obtain his comments. He may agree with the tribunal and Dr Reed. If not, he will be able to explain why. I appreciate that obtaining a consultant's comments may be easier said than done. In the alternative, the claimant could obtain his general practitioner's views or simply advance the detailed arguments, that he has sought to advance before me, to the next tribunal. A tribunal, with a medically qualified panel member among its members is far better able to consider the merits of those arguments than I am. I therefore refer this case to another tribunal, rather than adjourning it and deciding it myself. A copy of any further medical report or submission should be provided to the clerk to the tribunal as soon as possible, so that it may be copied to the Secretary of State before the hearing.
8. Finally, I remind the parties that Ms Haywood told me that Dr Reed's reference to "an inappropriate response" in paragraph 6.4 of her minute of 18 March 2003 (doc 92) was not to be taken as expressing disagreement with the second sentence of paragraph 2 of the tribunal chairman's statement of reasons, where it was said that "[t]he signs and symptoms are usually pain and tingling in the night, not always confined to the thumb, middle and radial half of the ring finger". I understood Ms Haywood's instructions to be that Dr Reed accepted that the little finger could be affected.

(Signed) MARK ROWLAND

Commissioner

22 July 2003