UK Social Security and Child Support Commissioners' Decisions

 


[2007] UKSSCSC CDLA_2466_2007 (22 October 2007)

DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. My decision is given under section 14(8)(b) of the Social Security Act 1998:

I SET ASIDE the decision of the Darlington appeal tribunal, held on 9 May 2007 under reference 224/07/00395, because it is erroneous in point of law.

I REMIT the case to a differently constituted appeal tribunal and DIRECT that tribunal to conduct a complete rehearing of the issues that are raised by the appeal and, subject to the tribunal's discretion under section 12(8)(a) of the 1998 Act, any other issues that merit consideration. In particular:

The appeal tribunal must investigate and determine the claimant's entitlement to a disability living allowance on her claim that was treated as made on 20 October 2006. In doing so, the tribunal must not take account of circumstances that were not obtaining during the period from the date of claim to the date of the decision under appeal (22 December 2006): see section 12(8)(b) of the Social Security Act 1998. Later evidence is admissible, provided that it relates to the time of the decision: R(DLA) 2 and 3/01.

REASONS
2. I have set the tribunal's decision aside on the ground that it failed to deal sufficiently, given the evidence, with the mobility component at the lower rate. I have also advised on how to assess the evidence of an approved disability analyst.

History and background

3. The claimant made a claim for a disability living allowance that was treated as made on 20 October 2006. She listed her medical conditions and wrote about how they affected her. On mobility, she said that she needed to be accompanied in case she had a panic attack. On care, she said that she relied on her husband's encouragement and support when she was not well. More specifically, she might need help to get out of bed, to cook and eat, and for supervision especially when she was dizzy. It was clear from the claim pack that the disabling effects of the claimant's conditions varied and did so unpredictably.
4. The claimant's GP provided a factual report. It listed her medical conditions and said that the most disabling was her chronic anxiety, which could occur at any time. On disablement, the doctor said that the claimant required close supervision throughout the day.
5. On 22 December 2006, the decision-maker refused the claim.
6. The welfare rights organisation of the claimant's local authority lodged an appeal on her behalf and the decision-maker obtained advice on a standard form addressed 'To Approved Disability Analyst'. The advice is recorded at page 56. In so far as I can decipher it, it read:

'Thank you.

The claimant has a history of chronic anxiety and until recent years was a heavy alcohol user.

She is on a standard dose of an ???/antidepressant. She has insight and awareness of danger.

She is unlikely to need guidance or supervision when out of doors.

She is likely to be able to perform all self care tasks at her own pace.'

The advice is signed on page 57 over the title 'Approved Disability Analyst'.

7. In support of the appeal, the claimant's GP wrote a letter saying:

'In answer to your questions, I do believe she would need to be accompanied in unfamiliar surroundings. I do believe that unless accompanied, she would be more likely to be prone to lapsing with regard to alcohol. She often needs reassurance and I believe that if lost, she would find it very difficult to approach someone for directions. Although [she] is usually able to get out of bed and face the day, I do believe she requires an element of supervision from her husband throughout the day, to help provide a suitable home for their children.'

8. The claimant and her husband attended the hearing of the appeal, accompanied by their representative. The tribunal was asked to award the mobility component at the lower rate and the care component at the middle rate. However, it dismissed the appeal.
9. A district chairman gave the claimant leave to appeal against the tribunal's decision.

The mobility component at the lower rate

10. Section 73(1)(d) of the Social Security Contributions and Benefits Act 1992 provides for entitlement to the mobility component if the claimant

'is able to walk but is so severely disabled physically or mentally that, disregarding any ability he may have to use routes which are familiar to him on his own, he cannot take advantage of the faculty out of doors without guidance or supervision from another person most of the time.'

Section 73(11)(b) provides that this is at the lower of the two weekly rates.

11. The district chairman gave leave to appeal on the ground that the tribunal may not have correctly applied the statutory test.
12. The tribunal's reasoning on this issue is not entirely clear. However, I believe it is fair to summarise it like this. The chairman recorded the evidence given by the claimant and her husband. She then noted that the anxiety attacks did not occur every day. She concluded by saying that the tribunal decided not to award the mobility component at the lower rate because the evidence did not satisfy the legal test. That conclusion appears to be linked to the frequency of attacks.
13. If the chairman was saying that the evidence was not sufficient to show that the claimant experienced panic attacks most of the time, she was correct. However, in the circumstances of the case that reasoning was not sufficient to show that the claimant did not satisfy the conditions of entitlement. There was evidence that the claimant's panic attacks were unpredictable. On that basis, supervision might be needed most of the time as a precautionary measure in order to deal with panic attacks when they did occur. The tribunal overlooked this possibility and thereby went wrong in law.
14. If I have misunderstood what the chairman wrote, the tribunal's reasons are unclear and it went wrong in law by providing reasons that are inadequate.

The Secretary of State's support for the appeal

15. The Secretary of State has supported the appeal on slightly different grounds. The representative has argued that the tribunal failed to investigate and make sufficient findings on the need for supervision by day. I do not need to come to a conclusion on that. The argument will be before the tribunal at the rehearing and is, of course, now known to the claimant's representative.

Approved Disability Analysts

16. In my directions on the appeal, I wrote:

'If there is a rehearing, I will need to direct the tribunal on how to assess the evidence at page 56. This comments on the significance of the GP's factual report and is provided, according to page 57, by an 'Approved Disability Analyst'. I am not familiar with that expression. I would be grateful if the Secretary of State would explain what it means and what qualifications the person holds. The evidence consists of opinion and the tribunal can only assess its value if it knows the expertise of the person who is giving it. In the past, the advice has always been given by a doctor. If that is no longer the case, tribunals may have to make further enquiries before it [sic] can accept an opinion.'

17. In response, the Secretary of State's representative has repeated advice given by Dr Roger Thomas of the Corporate Medical Group, Health and Benefits Division, which advises the Department for Work and Pensions on matters relating to disability living allowance and attendance allowance:

'The role of Doctors and Health Care professions as Disability Analyst differs from the more familiar role of GPs, hospital doctors or nurses where making a diagnosis and arranging treatment are the main objectives. Disability Analysts have received special training to make an assessment of the disabling effects of an impairment and relate this to the relevant legislation in order to provide advice/reports to decision makers.

All doctors and Health Care Professionals undertaking assessments for State Benefit must be approved by the Department's Chief Medical Adviser (CMA). In order to gain approval by the CMA and demonstrate competence at performing assessments and preparing reports. Ongoing approval is subject to satisfactory performance and participating in ongoing training.'

18. This new language may be related to the amendments made by section 62 of the Welfare Reform Act 2007, which allow medical examinations to be undertaken by health care professionals approved by the Secretary of State and not, as previously, just by doctors.
19. Two questions arise on the advice given by the disability analyst. Is it evidence? If so, how should it be assessed?

Is the advice evidence?

20. This question would not be worth discussing were it not for a comment made by Mr Commissioner Mesher in CDLA/042/94. This must be the most influential decision ever given by a Commissioner that had not been reported. It is the original fount of learning on the mobility component at the lower rate. The adjudication officer had received advice from a medical officer that was very similar to the advice given by the disability analyst in this case. Mr Mesher commented:

'23. … I also consider that the appeal tribunal was wrong to describe the report from the medical officer dated 30 March 1993 as evidence. That report was no more than an opinion based on a reading of the case-papers. It was not based on any direct observation of the claimant. There is no objection to an appeal tribunal adopting such a statement of opinion as its own view, but that view must be based on evidence independent of that expression of opinion.'

If Mr Mesher meant that the medical officer's report was not evidence of the supposed facts on which it was based, his statement is unexceptional. However, there is a danger that his remarks will be read more widely as saying that such advice is not evidence of anything. Given the frequency with which this decision is cited, it is worth clarifying the position.

21. The evidence produced by the Secretary of State typically consists of a mixture of evidence as to fact, explanation and opinion. The reports on capacity for work, disability living allowance and attendance allowance are a mixture of facts, being observations of claimant's behaviour and the clinical findings on examination, and opinions, being an assessment of the claimant's disabilities. The advice given to decision-makers is usually a mixture of explanation (of the claimant's medical condition and medication) and opinion (the likely nature of the claimant's disablement). The advice given in this case is a typical example.
22. There is good authority that tribunals do not receive evidence, but rather deal with material tending logically to show the existence of a fact: Lord Diplock speaking for the Privy Council in Mahon v Air New Zealand [1984] AC 808 at 821. However, the word evidence is regularly used in tribunals and it does no harm so long as it is not misunderstood as conveying the significance that may attach to it in courts.
23. The clinical findings and observations made by the author of a report produced by the Secretary of State are evidence of fact on those matters.
24. The explanation of medical conditions and medication provided to the decision-maker is evidence. It is information that could be obtained by consulting reference works and is admissible as those works would be.
25. The opinions given in reports and advice to the decision-maker are also evidence. According to Cross and Tapper on Evidence (10^th edition 2004):

'In the law of evidence "opinion" means any inference from observed facts, and the law on the subject derives from the general rule that witnesses must speak only to that which was directly observed by them.'

There are, as always, exceptions to the rule. One is that expert evidence is admissible if this is necessary to understand what inferences may properly be drawn.

26. The rule and its exceptions are part of the law of evidence. In this jurisdiction, that law does not strictly apply. I do not know what 'strictly' adds to that statement, but it has become a traditional appendage. In R v Greater Birmingham Supplementary Benefit Appeal Tribunal, ex parte Khan [1979] 3 All ER 759 at 763, the Divisional Court of Queen's Bench was concerned with the 40% rule, which provided for a reduction in the supplementary allowance payable if the claimant had contributed to his own employment. Lord Widgery, the Lord Chief Justice, said:

'I think it quite clear that, however difficult the task may prove to be, a tribunal which is faced with a question of making an assessment under the so-called 40% rule must do its best to achieve a result. Further, in pursuing its best in this context, it should not regard itself as being bound strictly to the rules of evidence as they are applied in a court of law. It is open to the tribunal in this particular type of case to take into account all the circumstances, so far as they are probative, so far as they help to conclude proof of the truth in the individual case. I would expect in this type of case that tribunals should draw considerable strength from evidence which would not strictly be relevant in a court of law.'

27. The law on the admission of expert evidence in court proceedings is relevant to the admissibility of opinion evidence. It shows that evidence of medical opinion is admissible regardless of whether the opinion is based on personal examination or observation by the expert.
28. A personal examination is not necessary. In Pinfold and MacKenney v R [2003] EWCA Crim 3643, the Court of Appeal was concerned with medical evidence based on observation rather than examination. Lord Woolf, the Lord Chief Justice, said:

'16. In this case the medical evidence which the appellants now want to rely on does not comply with the usual requirement that the expert evidence should be based on an examination of the witness. However, it is our view that while, of course, the court will carefully scrutinise medical evidence before deciding whether it should be admitted, the absence of an examination of a witness or defendant concerned cannot be decisive in determining the admissibility of the expert evidence. The Court has to determine whether the evidence could be considered credible evidence by the jury as to an abnormality from which the witness suffered at the time of giving evidence and which might mean that the jury would not attach the weight it would otherwise do to the witness's evidence. The absence of an examination by the expert goes to the weight to be attached to the expert's opinion and not to the admissibility of that opinion. What a court must be on its guard against is any attempt to detract from the jury's task of finding for themselves what evidence to believe. The court should therefore not allow evidence to be placed before the jury which does not allege any medical abnormality as the basis for the evidence of a witness being approached with particular caution by the jury. Ultimately, it remains the jury's task to decide for themselves whether they believe a witness' testimony.'

29. Personal observation is not necessary. In Re W (Care: Threshold of Criteria) [2007] 2 F.L.R. 98, the Court of Appeal was concerned with a case involving allegations of sexual abuse. The judge had commented (quoted at paragraph 44) that an expert witness had only been 'prepared to rely on matters that she herself saw or observations that she herself carried out.' The Court said:

'46. We find it both regrettable and surprising that JS [the expert] was not prepared to assist the judge by commenting on what Miss R had observed. The basic function of an expert witness is to advise the court on matters which are within the expertise of the witness and outwith the expertise of the judge. The judge has to make findings of fact, and to draw inferences from the facts found. The task of experts is to assist judges in that process, not by telling them what the facts are or should be, but by giving them the benefit of expert opinion on questions within the area of the experts' expertise. This is, we think, elementary. … [I]t also strikes us as a sufficient derogation from the basic duty owed by an expert witness to the court to cast doubt on the objectivity and soundness of JS's evidence.'

30. The trend in the modern law of evidence is to translate limits on admissibility into issues of cogency of proof. This has been so since at least the latter half of the nineteenth century: Cockburn CJ in R v Birmingham Overseers (1861) 1 B & S 763 at 767. The same approach is appropriate in a tribunal that is not bound by the law of evidence. Accordingly, the fact that a witness who gives an opinion has not examined, or even seen, the claimant does not render the evidence inadmissible. It is, though, relevant to the value that the tribunal may give to the evidence.

How should the advice be assessed?

31. The claimant's representative has asked me to give some guidance on how the evidence of an approved disability analyst should be assessed.
32. In so far as the advice consists of an explanation, it is likely to be uncontroversial. However, the tribunal will have the assistance of the medically qualified panel member in assessing its accuracy.
33. In so far as the report or advice consists of an opinion, I hope that the following will assist tribunals.
34. In order to assess an opinion, the tribunal has to know the information on which it was based. That information may be stated, as it will be in full reports on capacity for work, disability living allowance or attendance allowance. Or it may be identifiable from the circumstances, as it will be in an advice to a decision-maker. If the tribunal cannot identify the supposed factual basis on which the opinion was made, it cannot rely on the opinion.
35. The tribunal has to decide whether the factual basis of the opinion was correct. To the extent that it was not and the difference is significant, the value of the opinion is undermined. If the tribunal accepts the factual basis as correct, the tribunal must decide whether to accept the opinion. In doing so, it will be relevant to know the professional background of the disability analyst. The tribunal may accept that they have all been trained and approved. But that training is supplementary to the analyst's professional training. It cannot turn a doctor into an occupational therapist or a physiotherapist into a doctor. And the professional background may be relevant to assessing the opinion given. To take some obvious examples, an occupational therapist's opinion on the aids that would assist a claimant may be more useful than that of a doctor, while a doctor's opinion on the risks of injury during an epileptic seizure may be more useful than those of a physiotherapist. (In practice, I suspect that the matters referred may depend on the particular's analyst background.) Accordingly, the tribunal will not be able to place much, if any reliance, on an opinion given by an analyst whose primary area of experience and expertise is not known.
36. That information will have to be provided for the tribunal in this case, if the Secretary of State wishes to rely on the advice given to the decision-maker. From the date of my decision, the Secretary of State will be on notice that tribunals need to know the area of professional expertise of an approved disability analyst. That information should be provided to the tribunal, if it is not already apparent from the evidence itself. Tribunals will not be expected to adjourn in order to obtain this information before assessing the evidence.
37. In practice, the significance of advice like that given in this case may not be great. The tribunal has to form its own conclusions. In doing so, it has the medical experience of the medically qualified panel member and the practical experience of the disability qualified panel member. It is, perhaps, only in exceptional cases that the outcome of the appeal will depend on, or be significantly influenced by, the analyst's advice. The position will be different, however, for the full reports on which tribunals place greater reliance, especially at a paper hearing.

Disposal

38. I allow the appeal, set aside the tribunal's decision and direct a rehearing.

Signed on original on 22 October 2007

Edward Jacobs Commissioner