UK Social Security and Child Support Commissioners' Decisions

[2005] UKSSCSC CIB_476_2005 (10 May 2005)

CIB 476 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 replace it with the decision that the tribunal should have made. This is:

Appeal allowed. The appellant is incapable of work, as measured by the personal capacity assessment, on 24 February 2004 and is not disentitled to incapacity benefit for that reason. The decision of the Secretary of State of 24 February 2004, superseding the decision awarding incapacity benefit from 31 October 2003 with effect from 24 February 2004, is set aside.

REASONS FOR THE DECISION

2. The claimant (Mrs F) was receiving incapacity benefit. She was examined by an approved doctor (Dr J) for the Secretary of State on 19 February 2004. Dr J considered that the claimant should have scored 12 points only as measured by the personal capacity assessment. As a result, departmental officers found her not incapable of work and her benefit was stopped.

The tribunal's decision

3. Mrs F appealed. The tribunal recorded that she complained at length about the medical examination. In its decision, the tribunal indicated that it did not accept Mrs F's complaints. It commented about some of them:

"… the tribunal had to assess the claimant's specific complaints. It found it difficult to believe that the EMO had invented his own answers to some of the questions. Why would he say that Mrs F drives her own automatic car to do shopping at the supermarket weekly if she had not told him this, for instance? … Similarly, it is difficult to believe that she did not tell the EMO that she had "no other problems" apart from neck and back and depression…"

It then dealt with several specific issues, one of which was the function of sitting. On this the tribunal found:

She said that the EMO had not given her enough points for sitting, yet she drives a car and watches soaps on TV, albeit alleging that this is only for 10 minutes at a time. At the tribunal she did occasionally shift position, but the 7 points awarded seemed appropriate for her "moderate functional impairment of sitting" and her "need to rise after 30 minutes" per the EMO.

The tribunal dismisses Mrs F's appeal, concluding that:

It was felt that Mrs F did not, and perhaps still does not, fully appreciate the criteria laid down. Despite Mrs F's assertions to the contrary, the tribunal felt that the EMO's examination had been as extensive as required and that his conclusions as to Mrs F's abilities were correct.

Mrs F's complaint to SEMA

4. Separately from her appeal, Mrs F complained on 2 March 2004 about Dr J's examination and report to SEMA (later Atos Origin) who conduct medical examinations for the Secretary of State. I have not seen her letter, but I have seen the lengthy reply sent on 10 January 2005. It accepts that Mrs F was justified in complaining about a number of aspects of Dr J's report. Most important, Dr J himself accepted that he should have recorded that Mrs F was not able to sit for more than 10 minutes rather than the 30 minutes stated in the report seen by the tribunal. The importance of this is that if Dr J's correction was known to the original decision maker, the evidence then before them would have been that Mrs F was incapable of work. As it was, the decision makers found that she was not incapable of work.
5. I asked the secretary of state's representative to comment on why the original decision had not been revised to Mrs F's benefit as it was clearly based on an error of fact. This was passed to the officers responsible for the original decision. The reply was that they were unable to change the original decision "because this is not new evidence. Although Dr J has now confirmed he made an error, the evidence before the tribunal indicated this anyway and would therefore have been taken into account by them". The officers concluded that "the tribunal therefore also had the evidence that Dr J could not have seen Mrs F sit for 30 minutes when making their decision."
6. Under the Social Security Act 1998, a tribunal decision cannot be revised for error of fact. If the officers are right that Mrs F's complaints were before the tribunal, then they cannot revise its decision refusing benefit even if it is – as here it undoubtedly is – wrong. Nor can a Commissioner, as Commissioners have power to act only if they find an error of law. In this case the tribunal did not know – nor could they - that Dr J accepted that there was a mistake in his report because Mrs F was told this only some months after the tribunal hearing. The tribunal considered the complaints put before it, did not investigate them any further, and found that there was no error. If in doing that the tribunal made no error of law, Mrs F would now be in a position where she should clearly have been entitled to incapacity benefit and that she was deprived of it by an admitted error for which she was in no way responsible, but that no one has power to award the benefit to her. That would be a patent injustice. It would have arisen because the complaints procedures was working much more slowly than the tribunal appeals procedure, and the tribunal was given no official information about, and did not enquire about, Mrs F's complaints.
7. That would be a patent injustice. Is it correct? I am relieved to find that it is not because the tribunal did err in law. But I register considerable concern that the doctor's admitted error was only accepted by SEMA more than four months after the tribunal decision and only some 11 months after the medical examination, and also that the tribunal was not told that there was an official investigation of Mrs F's complaints taking place that was potentially directly relevant to the tribunal's decision. Other tribunals in this position may find it advisable to check whether there is an outstanding complaint against an approved doctor and possibly to seek further evidence directly from the approved doctor.

Mrs F's ability to sit

8. Dr J saw Mrs F for 23 minutes on 19 February 2004. She complained that he spent much of the time on his computer, rather than looking at her. He was using the new electronic form of IB85, or Evidence Based Medicine as SEMA explained it to Mrs F. In considering this appeal, I expressed a number of concerns about reports generated on the electronic IB85 and how it was completed both generally and in this case. This followed from Mrs F's comments that Dr J had invented some of the replies and the tribunal's rejection of that criticism. Mrs F had, for example, strongly criticised the report's comment that "they enjoy an active social life". There was no evidence of that at all in any of the documentation save that this phrase (in identical wording) appeared 12 times in various places on the IB85. However, I do not need for the purposes of this decision to do more than explore the issue of Mrs F's ability to sit, and comment on the tribunal's criticisms of Mrs F.
9. In her replies on form IB50, Mrs F stated that she had to move from a chair within 10 minutes. She had two problems, her back pain and her neck pain. Her difficulties arose from arthritis originating in a road traffic accident. The underlying causes were fully confirmed by medical evidence.
10. In the first part of box 7 (diagnosis history) of Dr J's electronic report there is a clear acceptance that Mrs F has back and neck pain every day and shoulder pain most days. Of the neck pain the report says "This symptom is constant and when it occurs, is usually bearable." Of the shoulder pain it states that the pain is intermittent and occurs most days. The back pain occurs every day and is usually moderate. Later in box 7 (in "description of a typical day") it states relevantly from among the 22 phrases put in the report (largely I suspect from the wording from the computer's bank of standard phrases):

Usually sleeps poorly because of neck pain.

Has no problems in the bathroom.

Has no significant problems dressing.

Cooks safely and eats well.

Always struggles to do housework because of neck problem.

Drives an automatic car to supermarket for 10 minutes every week.

Usually sits to watch TV for 10 minute(s) before having to move.

` Likes to watch soaps most days.

I stress that this is my view of what is relevant to Mrs F's ability to sit, as phrases that relate directly to back and neck pain. The selection suggested by the computer programme and accepted by Dr J is noted below. The difference is that the electronic IB85 report automatically repeated points relevant to back pain (and it does so, I understand, unless the doctor stops it doing so) but not those relevant to neck pain, although Mrs F specifically stated that it was in part her neck pain that prevented her from sitting from any length of time.

11. The assessment of activity 3 (sitting) in Dr J's report was that Mrs F could not sit comfortably for more than 30 minutes without having to move. He has now accepted that he input the wrong information in dealing with this descriptor. How did this happen? Under box 8 (prominent features of functional ability relevant to daily living) the report sets out some of the phrases I have indicated above from box 7, ignoring the descriptors relating to neck pain and repeating those that deal with back pain. Box 9 (behaviour observed) records: "Appeared to have some difficulty sitting due to back pain and needed to rise after 30 minutes". As the local officers and Mrs F both pointed out, had the times at the front of the IB85 informed this answer, it would have been noted that the finding was impossible as the examination did not last that long. Under box 10 (relevant features of clinical examination) there is a repeat of the findings about the lower back, and again none about the neck. In box 11 the report concludes, "the customer has moderate functional impairment of sitting". It would appear, in the light of the details now before me, that Dr J's admitted error in Box 9 fed through to other aspects of the report, triggered by the erroneous "30 minute" finding.
12. I set out the tribunal's finding and decision on this point at the start of the decision. It expressly quoted the "30 minute" finding. In doing so, it was wrong in law and in the technical sense perverse. It relied on a purported finding of Dr J that was on the face of the IB 85 itself wrong in fact and it did so notwithstanding that Mrs F had told the tribunal that this was so. To that extent I have sympathy with the point made by the departmental officers who refused for that reason to revise the original decision.
13. Dr J accepted that he was wrong in fact. But the tribunal's error was also one of law. As the point had been put in issue, it should have dealt with the "30 minute" finding and it did not. I set aside the tribunal decision because without that error the tribunal might have reached the opposite decision. Dr J corrected evidence is such that Mrs F could have been given 15 points, not 7, for her limited ability to sit for not more than 10, rather than 30, minutes. I accept the corrected evidence and find that to be so. That is by itself enough to secure the result that Mrs F seeks. I do not therefore consider the issues raised in the appeal about other descriptors. I comment only that there were other limitations for some other descriptors and this decision is not to be taken as a decision that Mrs F met only the "sitting" descriptor of the assessment.

Did Dr J invent answers?

14. Mrs F alleged that Dr J attributed to her statements that she did not make. The tribunal took a somewhat hostile view of her criticisms, dismissing some as "difficult to believe". I am concerned that the tribunal relied too uncritically on the electronic IB 85 and that some of its criticisms of Mrs F were misplaced.
15. Mrs F's criticisms focussed on the repeated statements about her "typical day". For example, the phrase "they enjoy an active social life" used in the IB85 12 times in this case is a standard phrase in the computer memory bank that can be activated easily by an approved doctor in a report. When activated in Box 7, the software in the computer will automatically suggest the phrase in a number of contexts. That is because the underlying programme is written on the basis that the phrase is relevant evidence to a number of aspects of the report. Unless the doctor acts to stop this, or to go back and correct an error, any error in Box 7 will repeat itself. That in my view is the only coherent explanation of the repeated errors in this IB85 about what I accept is Mrs F's non-existent social life. For that reason I think it unfortunate, as I have commented before, that the new form of IB85 does not distinguish the original insertion of a phrase in a report from its repetition elsewhere in the report. And it emphasises the need to ensure no errors in Box 7.
16. I am also concerned that there can be repeated omissions as well as repeated errors, although this is much less obvious. If the underlying programme does not pick up a finding in Box 7 as relevant, it will not suggest it elsewhere in the IB85. Here there were observations about Mrs F's neck pain in Box 7, but they were not repeated when comments about back pain in the same list were repeated. Mrs F expressly stated that her neck pain was one reason why she could not sit. Because the tribunal relied only on the IB85 it did not deal with this.
17. The tribunal criticised Mrs F's criticism about the stock phrase: "Claimant states no other problems". As she rightly protested, she did state other problems – several of them. Medical evidence also confirmed cervical spondylosis, osteoarthritis, patella femoral crepitus, tachycardia, a number of eye problems, and Raynauld's phenomenon as physical diagnoses. To reduce this to:

Neck and back problems

Depression

Claimant states no other problems

is wide of the mark. In the electronic IB85 the phrase "Claimant states no other problems" falls into place automatically in box 1 unless a doctor stops it. But it is trebly ambiguous. Does it mean that the claimant has been asked, and has positively stated, that he or she has no other problems (as this tribunal assumed), or is this a comment by the doctor that the claimant, though not asked, has not mentioned anything else? Does it have either of those meanings? Box 1 is headed "Diagnoses" not a list of the problems stated by the claimant. If this is a list of diagnoses accepted by the approved doctor, the relevance of the claimant's statements is not obvious. Alternatively, if it is a list of the claimant's problems as stated by the claimant to the doctor, it is not clear if there are any "diagnoses". The tribunal was wrong to draw any significant conclusions from the phrase. Taking it as a positive finding when it is merely an electronic default can mislead. I do not need to explore Mrs F's "other problems" further in this appeal for the reasons stated above, but in my view the tribunal misled itself. Accordingly, its criticism of Mrs F was misplaced.

David Williams

Commissioner

10 May 2005

[Signed on the original on the date shown]