UK Social Security and Child Support Commissioners' Decisions

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[2004] UKSSCSC CIB_2368_2004 (18 November 2004)

CIB/2368/2004

DECISION OF THE SOCIAL SECURITY COMMISSIONER

I allow the claimant's appeal. I set aside the decision of the Birmingham appeal tribunal dated 25 March 2004 and I refer the case to a differently constituted appeal tribunal for determination.

REASONS

On 17 September 2003, the Secretary of State decided that the claimant was not entitled to income support from that date on the ground of incapacity for work. The claimant appealed and, on 25 March 2004, the case came before the Birmingham appeal tribunal. She was not represented at the hearing, being accompanied only by her daughter and an interpreter (possibly her son). In the bundle of documents before the tribunal was a letter dated 1 March 2004 from Messrs. Millichips, solicitors, addressed to the Appeals Service, saying –

"We have pleasure in enclosing medical report from our client's G.P. and we would be grateful if this could be put before the Tribunal for the Hearing."

There followed a typed questionnaire, the answers to which had been inserted in manuscript. At the end of the record of proceedings, apparently as a note of deliberations – the note of evidence appears to be squeezed on to the end of the preceding page – there appears the following statement.

"We discount the 'med rep' sent in by Solrs. It is not signed + there is no indication that it from her GP. Not Dr Menon's writing. Used her right arm normally adjusting headscarf."

There is nothing to indicate that either of those points was put to the claimant during the hearing. If they were, her answers are not recorded.

The tribunal dismissed the claimant's appeal. In the statement of reasons, it is said:

"7. [The claimant's] Solicitors have produced a questionnaire purporting to come from her Dr. The author of this document is not identified. It is not signed and there is no indication on the document as to its origin. We give no weight to this document."

The claimant now appeals against the tribunal's decision with my leave and the support of the Secretary of State. Before granting leave, I invited Messrs Millichips to provide evidence as to the genuineness of the medical report and the identity of the author. They have responded with copies of correspondence between themselves and a Dr V K Jhanjee. The documentation may not provide an absolutely watertight authentication of the genuineness of the answers given in the questionnaire but it does make clear that the questionnaire was sent by the solicitors to the doctor, that the doctor had previously supplied to the solicitors copies of the claimant's medical records and that a fee was paid for the necessary examination. Furthermore, the squiggle with which Dr Jhanjee signs his letters looks similar to a squiggle that can be seen at the end of the questionnaire and so, contrary to the view of the tribunal, the answers to the questionnaire do appear to have been signed. If anyone still doubts the genuineness of the answers, the Secretary of State can no doubt be asked to write directly to the doctor to obtain such confirmation or to make any further enquiries.

It seems to me to be quite extraordinary that the tribunal should have acted as they did. The completed questionnaire had been submitted by solicitors who presumably had not believed it to be a forgery and who could have been asked to authenticate it. In view of the way in which the questionnaire was presented, the tribunal may have been entitled to ask for such authentication. However, the answers to the questionnaire appear to have been written by someone with some medical knowledge and the only possible evidence to justify the tribunal suspecting that they were not genuine was that the handwriting was not that of the doctor they believed to be the purported author, whose writing appears elsewhere in the papers. That was not enough to justify them rejecting the evidence without making further enquiries. That is particularly so as there is no mention of Dr Menon in the statement of the tribunal's reasons, which refers to the author not being identified suggesting that the tribunal accepted the possibility that someone else could properly have written the answers. If a doctor other than Dr Menon wrote the answers, the tribunal were not entitled to reject them out of hand. That was appropriate only if they believed the answers to have been forged. If the tribunal did believe the answers to have been forged, they appear to have been wrong. Contrary to what appears to have been the tribunal's view, Dr Menon was not the purported author. Whether the claimant has changed her general practitioner, or whether Dr Menon and Dr Jhanjee are partners and have two surgeries, or whether the claimant has consulted more than one general practitioner, I do not know. All are possibilities and do not necessarily undermine the credibility of Dr Jhanjee's answers to the questionnaire, particularly as he plainly had access to the claimant's medical records and examined her.

In failing to put their suspicions to the claimant or her solicitors, the tribunal acted in breach of the rules of natural justice. I must set aside their decision and the claimant's appeal against the Secretary of State's decision must be heard by another tribunal.

(signed on the original) MARK ROWLAND

Commissioner

18 November 2004