UK Social Security and Child Support Commissioners' Decisions

[2008] UKSSCSC CIB_3950_2007 (11 February 2008)

CIB 3950 2007

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. With the consent of both parties, I replace the decision of the tribunal with the decision it should have taken. This is:

Appeal allowed. The appellant is incapable of work, as measured by the personal capability assessment, on 26 03 2007. The decision of the Secretary of State to the opposite effect, superseding the previous decision awarding incapacity benefit to the appellant from that date, is set aside.

2. The claimant and appellant ("C") is appealing with my permission against the decision of the Wigan tribunal on 31 07 2007 under reference 079 07 00629.

REASONS FOR THE DECISION

3. I granted permission to appeal, and suggested the outcome of this appeal, by reference to only one of the descriptors in issue in the appeal. I make no comment on other descriptors, some of which were also present. The descriptor in question is that of bending and kneeling. The parties agreed that I should set aside the decision of the tribunal, and replace it with my decision. As both parties are aware, I also expressed my concern about the decisions taken below in this appeal. I explain the facts of this case more fully in order to explain that concern.
4. C had been receiving incapacity benefit for a year when he was sent an IB50. The appeal papers should contain, but do not, the reasons why he was awarded the benefit. In his replies to the IB50 standard questions, C stated that he could not bend or kneel and said why. That reason was consistent with his other answers to the IB50. C's main problem is back pain. The approved doctor records in the IB85 "diagnosis history" that this started with an accident 2 years ago. C was troubled by back pain every day, but that the pain is "usually bearable". Ongoing medical treatment and physiotherapy is recorded. C's general practitioner had confirmed that C was advised not to work and was receiving consultant surgical advice about back pain.

The approved doctor's report on bending and kneeling

5. Turning to the descriptor in issue, the approved doctor completed Activity 6 in the standard IB85 to advise that C had "no problem" with bending and kneeling. The form records the general comment at box 11 that:

"Despite complaining of back pain, based on the history, examination and informal observations, the customer has for the majority of the time no significant restriction of … bending and kneeling."

6. An IB85 gives three justifications for a physical descriptor. The first justification, at box 8 in this report, is "prominent features of functional ability relevant to daily living". This is a computer-generated selection of the items recorded in box 7 of the IB85 under "description of a typical day" transferred automatically to box 8. There is nothing directly relevant to bending and kneeling in box 7. A number of items of indirect relevance were carried forward (such as driving an automatic car for 10 minutes to the shops most days) and others were not (such as usually struggles to climb up and down stairs due to pain).
7. The second justification is "behaviour observed during assessment". The relevant item, at box 9 in this report, is "was unable to bend to the floor to pick up an item. However, this was inconsistent with other available evidence". The "other available evidence" is not identified.
8. The third justification, at box 10 in this report, is "relevant features of clinical examination". This records under "abnormal findings": "Cannot bend forward to reach knees. Customer declined to attempt to squat and rise". Further through the IB85 the "medical examination findings" are recorded at box 7(cont). Under the heading "lower back" this records: "forward flexion to; above knees; squat and rise: claimant declined". I assume that the computer program transferred this from box 7 to box 8. So the formal clinical assessment by the doctor was that C could not bend to touch his knees, and the doctor was unable to make any observation of squatting.
9. The three justifications are therefore that C has a history of back pain daily with ongoing treatment. The formal examination found only that C's forward flexion was limited to reaching above his knees. And it recorded informal observation (or perhaps re-recorded formal examination) that C could not bend to the floor. Yet the approved doctor found that based on "the history, examination and informal observations" C had no significant restrictions in bending and kneeling. I can only ask: what history, what examination, and what observations? The answers are not obvious in the IB85.
10. The only clue to the doctor's (or, perhaps, computer program's) advice that C had no problems with his knees is the phrase quoted above:

"this was inconsistent with other available evidence."

But in this case there is no (emphasis mine) direct evidence recorded in the history, the examination, or the informal observations in the IB85, or elsewhere in the papers available to the tribunal, inconsistent with C's claim and the approved doctor's direct clinical evidence and observation that C could not bend to reach his knees. So the phrase invites another question: available to whom?

11. I have been told that the computer programs that are, in effect, part of the electronic IB85, are there to assist a doctor in ensuring that an opinion is evidence based. But a doctor can override the program. There therefore may be two answers to the question "available to whom?". Either it was available to the computer program or it was available separately to the doctor. If the "other available evidence" was suggested by the computer program to the doctor then that program must have been triggered by "other evidence" that, from the nature of the program, must have been identified from data held about C in the computer memory when it generated the report. The process is automatic, so the phrase must have been triggered by some specific instruction embedded in the software and some specific data in the memory. If so, the program should have identified the data to the doctor. If it was identified to the doctor, why was it not in the report? If the "other available evidence" was identified by the doctor and not the program, and was inserted by the doctor as an override of the program, then the program will have generated the opposite advice. C is then entitled to ask on what evidence the doctor chose to override the results of his own clinical examination. On either alternative that information should have been available to the tribunal. It was not.

The tribunal's decision

12. There was no evidence before the tribunal from any other source than C and the approved doctor. C repeated his statement that he could not bend or kneel as required in a submission to the tribunal. He repeated it again in evidence to the oral hearing, as recorded in the record of proceedings.
13. The tribunal did not accept C's evidence. Its specific comment on bending and kneeling, in its paragraph 7, was:

"The examining doctor … noted … that he was unable to bend to the floor to pick up an item. The examining doctor, however, commented that the inability to bend was inconsistent with other available evidence. The tribunal accepted the opinion of the examining doctor as it is based on the recorded clinical findings."

Its reasons were that:

"9 The tribunal preferred the clinical findings as recorded by the examining doctor to the oral and written evidence of the appellant. The clinical findings are based on the results of a detailed medical examination."

So the tribunal relied on the doctor's "other available evidence" without any indication that it knew what that evidence was.

Conclusions

14. This was a supersession case. It was for the Secretary of State to show the tribunal on the balance of probabilities that the previous decision awarding benefit to C was no longer correct. The burden of proof was on the Secretary of State. The Secretary of State failed to produce the evidence explaining why C was originally awarded benefit and could rely only on the evidence of the approved doctor. The doctor, as we have seen, relied for his opinion on this critical descriptor on evidence that was not identified. The tribunal then relied on the opinion of the doctor, acknowledging that this was based on unidentified evidence, as the reason for ignoring the actual evidence. I can see no basis on which the tribunal could justify that decision. The clear evidence of both C and the approved doctor points to a significant limitation in the ability to bend and kneel. There was no material evidence identified to or by the tribunal suggesting that a supersession is justified.
15. I expressed concern with the way C's case had been handled when granting permission to appeal. I did so because of the effect of the phrase "inconsistent with other available evidence". This is a phrase commonly seen in IB85 forms. It is troubling that not only those acting for the Secretary of State but also an experienced tribunal can ignore consistent evidence from all available sources because of the inclusion of a phrase in a computer-generated report which, in the context of an appeal, can be meaningless.
16. The phrase "other available evidence" must have been generated by the program or inserted as an override. On either basis, it must be based on actual, and therefore identifiable, available evidence. If the opinion of the approved doctor is challenged as here, then the evidence must be identified or otherwise made available to the tribunal if the Secretary of State is to rely on it. Otherwise a secretary of state's representative is relying on assertions and not evidence. Further, the secretary of state's representative will have failed to show why the actual evidence is to be ignored. In the context of an appeal, the phrase has evidential value only if the "other available evidence" is available to the tribunal and identified to or by it. In this case it was not identified to the tribunal. And the tribunal did not identify it.
17. More generally, I draw attention to the need for a tribunal to ask for or identify, and then evaluate, any "other available evidence" when it is asked to rely on an opinion of an approved doctor using this phrase. If none is identified to it, then it must make its own decision on the evidence about the descriptor available to it without relying on the doctor's unexplained opinion.

David Williams

Commissioner

11 02 2008

[signed on the original on the date shown]