UK Social Security and Child Support Commissioners' Decisions

[2005] UKSSCSC CDLA_2277_2005 (21 September 2005)

CDLA 2277 2005

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. I allow the appeal. For the reasons below, the decision of the tribunal is wrong in law. It is set aside. I refer the appeal to a new tribunal to consider in accordance with the directions in this decision.
2. The claimant and appellant is appealing with my permission against the decision of the London appeal tribunal on 19 04 2005 under reference U 42 242 2004 06255
3. DIRECTIONS FOR REHEARING

A The rehearing will be at an oral hearing.

B The new tribunal should not involve any member who has previously been a member of a tribunal involved in this appeal.

C The claimant is reminded that the tribunal can only deal with the appeal as at the date of the original decision under appeal.

D If the claimant has any further written evidence to put before the tribunal, this should be sent to the tribunal within one month of the issue of this decision.

These directions are subject to any later direction by a district chairman.

REASONS FOR THE DECISION

4. I gave reasons for my view that the decision of the tribunal should be set aside when granting permission to appeal. The secretary of state's representative agreed with that view. In allowing the appeal, I emphasise two points from my reasons.
5. I do not understand the tribunal's decision on the mobility component. It appears to have found that the claimant was not virtually unable to walk because of the examining medical practitioner report. It then rejected the examining medical practitioner report when finding in favour of the claimant on the lower rate of the mobility component. It is not often that a representative argues that the tribunal is in error of law in awarding a benefit but in this case the representative was right to do so. The tribunal's decision is inconsistent with the approach it said that it took to the evidence.
6. In reviewing the medical evidence the tribunal commented that:

Unlike the EMP, the GP is likely to be subject to pressure from the Claimant,

CDLA 8462 1995 (*74/96).

If this is, as it appears, the reason for giving little weight to the evidence from the general practitioner, it is wrong.

7. CDLA 8462 1995 was once much cited for two separate reasons. It was authority for the proposition that a tribunal should make specific findings of fact on all points in issue before it, but not every factual question that arose. That is now enshrined in the Social Security Act 1998, section 12(8)(a).
8. CDLA 8462 1995 was also much cited, as was CDLA 692 1994 by the same Commissioner, on the issue of evaluating medical evidence. This was because they were cited in many Departmental submissions to appeal tribunals in both disability living allowance and incapacity benefit cases. That is no longer so. In CDLA 2308 2001 the secretary of state's representative submitted that "reliance on these somewhat dated decisions is unfortunate". That reliance was often excessive given the guarded nature of the actual decision in CDLA 8462 1995. Commissioner Powell in CIB 3222 2003 reminds us that quotations from CDLA 8462 1995 often ignored what Commissioner Rice actually said. He concluded his comment about preferring evidence of an examining medical practitioner by adding:

"Of course, there may be special circumstances where, in the light of the claimant's evidence or that of his GP the medical judgment of the examining medical practitioner may be suspect."

Even with this proviso, CDLA 8462 1995 did not command wide support of Commissioners. See, for example, the views of Commissioner Jacobs in CIB 407 1998 to which the representative rightly drew attention. This could end in what deputy Commissioner White described in CIB 2594 1998 as a "battle of quotations" that leads nowhere. I agree. The view that carries the consensus of Commissioners is in R(DLA) 3/99 (CSDLA 856 1997), a decision of Commissioner May QC. To quote from that report, any attempt to rely on an assumption that an examining medical practitioner is right would:

"fly in the face of the obligation of a tribunal to consider the whole evidence in a case and in these circumstances they cannot accept one body of evidence upon a basis that it must normally prevail over other evidence in the case."

9. For the sake of completeness, I used the electronic records available to me to look at every reference to CDLA 8462 1995 in decisions of United Kingdom Commissioners in the last five years. There are a few references to the point now in section 12 of the Social Security Act 1998. But there are none that approve the approach to medical evidence said to have been taken in that case or that seek to sidestep R(DLA) 3/99.
10. In this case, there is nothing in the papers suggesting any undue pressure that impugned the professional integrity behind the general practitioner's reports. The tribunal's approach is misplaced in both law and fact.
11. Finally, tribunals should not refer, or be referred, to decision starring numbers. Commissioners stopped using the system in 2000. Unlike reported decisions, starred decisions have no special status. They were used at a time when the proper reporting of Commissioners decisions had broken down. Thankfully, that is now some years behind us. The proper practice in citing Commissioners' decisions was revised and restated in the Chief Commissioner's Practice Memorandum No 2, The publication and Citation of Commissioners' Decisions. This emphasises that references to reported decisions should take priority.

David Williams

Commissioner

21 September 2005

[Signed on the original on the date shown]