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[2006] UKSSCSC CSDLA_388_2001 (09 June 2006)

THE SOCIAL SECURITY COMMISSIONERS

Commissioner's Case No: CSDLA/388/01

SOCIAL SECURITY ACT 1998

APPEAL FROM THE APPEAL TRIBUNAL UPON A QUESTION OF LAW

COMMISSIONER: L T PARKER

Appellant: Respondent: Secretary of State

Tribunal: Greenock Tribunal Case No:

DECISION OF SOCIAL SECURITY COMMISSIONER

Decision

1. I find no material error of law in the decision of the tribunal sitting in Greenock ('the tribunal') on 19 October 2000. The tribunal's decision therefore stands.

Reasons

2. The main ground of appeal to the Commissioner, on which another Commissioner granted leave, was that the medical member on the tribunal also acted as an examining medical practitioner (EMP) for the purposes of disability living allowance (DLA) and the tribunal relied, in part, on a report from an EMP dated 2 March 2000 for its own decision to refuse the appeal. It was argued that the medical member's opinions could be biased on that account.
3. The tribunal was charged with the merits of the appellant's entitlement to DLA following the wholly adverse decision on her renewal claim, which adverse decision was made by a decision maker (DM) on 19 March 2000.

No apparent bias

4. The delay in resolution of this appeal arose partly because it was stayed to await the determinations of higher judicial authorities. A Tribunal of Commissioners in CSDLA/1019/99 (the Gillies case) had held that where a medical member of the tribunal acts as an EMP for the Department and a report from another EMP is part of the evidence, this suggests apparent bias. The Secretary of State appealed. The present appeal was therefore stayed until that matter, which could assist the appellant, had been finally resolved.
5. However, the House of Lords in Gillies v the Secretary of State for Work and Pensions (Scotland) [2006] UKHL2 confirmed the decision of the Inner House of the Court of Session which had unanimously overturned the reasoning of the Tribunal of Commissioners.
6. As Lord Hope of Craighead put it at paragraph 3 of his judgement:

"… the question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.

…"

7. He answered his question in the negative at paragraph 27:

"…in my opinion the idea that [the member on a tribunal who happens also to be an EMP] was likely to be pre-disposed in favour of reports by EMP practitioners simply because she had a special interest in and experience of the preparation of these reports has no objective basis in the evidence. The test for her disqualification on the grounds of apparent bias has not been made out."

8. The House of Lords also dealt with the point that:

"… the medical checks by Benefits Agency doctors can't be said to be independent and impartial…".

9. At paragraph 18 of his judgement, Lord Hope said:

"It is important to stress at the outset that the facts do not support the appellant's primary argument that [the EMP] was to be seen as a Benefits Agency doctor or that she was in some other way aligned with the Benefits Agency. The tribunal of commissioners and their Lordships of the First Division were in agreement on this point. Her relationship with the Benefits Agency was as an independent expert adviser. Her advice was sought and given because of the skills that she was able to bring to bear on medical issues in the exercise of her professional judgment. A fair-minded observer who had considered the facts properly would appreciate that professional detachment and the ability to exercise her own independent judgment on medical issues lay at the heart of her relationship with the Agency. He would also appreciate that she was just as capable of exercising those qualities when sitting as the medical member of a disability appeal tribunal. So there is no basis for a finding that there was a reasonable apprehension of bias on the ground that [the EMP who also sat as a tribunal member] had a predisposition to favour the interests of the Benefits Agency. Nor, it must be emphasised, is there any suggestion that she did or said anything in the course of her work which might be thought to cast doubt on her impartiality or her integrity."

Excluding relevant evidence

10. Therefore, the above disposes of the main original ground of appeal to the Commissioner. But there is now an entirely separate strand to the appeal. The terms of the original application are dated 19 December 2000. However, on 29 March 2004, a solicitor ('the solicitor') on behalf of the appellant (not the representative who appeared for her at the tribunal hearing, which latter representative ('the representative') has not represented her at any stage of the appeal to the Commissioner) submitted a further ground of appeal; this was to the effect that the EMP was the subject of a complaint made on 7 August 2000 by the appellant to the General Medical Council (GMC) and that it could be inferred from the GMC's letter of 5 July 2001 in response that the GMC accepted that the EMP may have excluded from his consideration matters which he ought to have considered. Furthermore, it is asserted that the appellant attempted to raise the fact that she had made such complaint against the EMP with the tribunal and was not allowed to do so. Accordingly, the solicitor argues:

"It is respectfully submitted that the decision of the Disability Appeal Tribunal to exclude evidence regarding the complaint to the GMC, which was a matter which could have had a material influence on the outcome of the appeal, was an error in law."

(Delay by the Commissioner in resolution of this point arose because the solicitor originally intended to pursue a legal aid application but that is no longer the case.)

11. I reject this argument for three reasons. Firstly, it is for an appellant to make out the grounds of his or her appeal and I am not satisfied on a balance of probabilities that the facts are indeed as the appellant now asserts, so that any submission based on the premise of their accuracy necessarily falls. Many documents were lodged by the appellant at or before the tribunal hearing, including statements from the appellant and her husband, and there is no reference in them of the complaint to the GMC. It is noted on the tribunal's record of proceedings that the hearing commenced at 10.55 am and finished at 12.35 pm and the very lengthy manuscript record underscores such a duration. The representative spoke at length on why the appellant disputes the accuracy of the EMP's report and the matters with which she disagreed are itemised and extend to one manuscript A4 page. The original application for leave to appeal in December 2000 makes no mention whatsoever of what is now asserted on her behalf viz that she had made a complaint to the GMC which she made known to the tribunal but the tribunal refused to take account of it. Given the detailed specification of her case at all stages, I find this to be a surprising omission. Further, the tribunal which had the opportunity to see and hear the appellant was not impressed with her as a witness.
12. Secondly, even if the tribunal had known about the said complaint, I am not satisfied that it would have had any influence whatsoever on the outcome of the appeal, let alone a material one. The tribunal had it stated to them with emphasis that the appellant disagreed with the opinion of the EMP. This is hardly surprising as such opinion ran entirely contrary to her case. The tribunal likewise explained in detail why it preferred the EMP's report to other evidence in the case, so that thereby the appellant had not discharged the onus of proof which lay upon her. Evaluation of the evidence and determination of the merits is for the tribunal. Unless there is an irrational or improper approach or it is inadequately explained, a Commissioner cannot interfere. That has not been demonstrated.
13. In disability living or attendance allowance cases, questions about the level of disablement and how it causes difficulty in walking and care needs and whether such difficulties satisfy the statutory criteria, are matters of fact and degree for the tribunal seeing and hearing the evidence to assess. The tribunal includes a member experienced in the needs of the disabled and an expert medical member and its analysis of the evidence constitutes error of law only if such as no reasonable tribunal could have reached. I am not of the view that the tribunal's weighing of the evidence was of this nature.
14. The tribunal did not consider the evidence of the appellant to be persuasive and fully explained why so. The tribunal regarded the clinical findings and observations of the EMP, specifically focused as they were on the DLA criteria for entitlement, as more reliable. The EMP's finding with respect to the heavily calloused feet of the appellant clearly weighed heavily with the tribunal in declining to accept a severe degree of disablement. The tribunal expressly rejected the appellant's assertion that "… she had not removed her socks or slippers". I note that this very serious aspersion on the EMP's integrity (for it would be a complete dereliction of professional duty for the EMP to make such a positive finding when he had not observed or examined her bare feet) was not included in the letter of complaint to the GMC, which again I consider a surprising omission. In any event, it is quite apparent, having regard to its analysis of the appellant's evidence and the detailed way in which the tribunal set out its preference for the EMP's report nothwithstanding her criticisms of it, that knowledge she had complained to the GMC about the EMP would have made no material difference to the tribunal's assessment.
15. Thirdly, quite apart from the fact that the response from GMC did not come until after the tribunal hearing, even had it done so, it too would in my view have made no material difference to the outcome. According to the letter from the GMC dated 5 July 2001 sent to the appellant and her husband, the matter had been considered by the Preliminary Proceedings Committee (PPC), which has a sifting role on whether a case ought to be referred for enquiry by the Professional Conduct Committee, and the PPC took the view that the allegations even if proved did not amount to serious professional misconduct so that there should be no such reference. However, the PPC directed that the EMP should be sent a letter of advice in the following terms:

"Nevertheless, the Committee was concerned by the manner in which you conducted your examination on [the appellant]. The Committee would advise you to ensure that you are more comprehensive in your communication with clients in future and that you are clear of your role as an examining doctor and adhere to the proper processes involved. In addition, you should have regard to the views and opinions of other professionals who have been involved with the client when compiling your report rather than to make your own assumptions about a client's condition.

The Committee have asked me to draw to your attention to (sic) paragraph 12, bullet point 6 of the GMC's booklet 'Good Medical Practice', which recommends that a doctor gives information to patients in a way they can understand. In addition you should refer to paragraph 30 on page 10 which recommends a that (sic) a doctor respects the skills and contributions of colleagues and makes sure that patients and colleagues understand your role and responsibilities. ..."

16. As the solicitor notes, the copy of the booklet he has submitted has different paragraph numbers, but the substance of the advice presumably remains the same. The submitted booklet, under the heading "Good communication", among other bullet points, has one which recommends:

"? giving patients the information they ask for or need about their condition, its treatment and prognosis, in a way they can understand, including, for any drug you prescribe, information about any serious side effects and, where appropriate, dosage."

17. Under a further heading with the title "Working in teams", the booklet points out that:

"health care is increasingly provided by multi-disciplinary teams. Working in a team does not change your personal accountability for your professional conduct and the care you provide. When working in a team you must:

respect the skills and contributions of your colleagues;

…

make sure that your patients and colleagues understand your professional status and specialty, your role and responsibilities in the team and who is responsible for each aspect of patients' care;"

18. The advice to the EMP from the GMC, as read with these points in the booklet, seems to me, with respect, to be, to a degree, misplaced. The EMP is an independent expert adviser to the Department for Work and Pensions, not working in a team and not involved with the care of the claimant as his patient. While the GMC is entitled to criticise any standard of clinical practice by an EMP simply because he is a doctor, it is not the EMP's role to give the claimant the information described, nor is the EMP working in a medical team such that advice about working in a team can be in any way relevant.
19. The part of the booklet which seems to me to be most applicable to the EMP's position, is that set out at paragraph 51 of it:

"You must be honest and trustworthy when writing reports, completing or signing forms, or providing evidence in litigation or other formal enquiry. This means that you must take reasonable steps to verify any statement before you sign a document. You must not write or sign documents which are false or misleading because they omit relevant information. ..."

But although the complaint to the GMC by the appellant maintained that the EMP's report was "misleading", no acceptance of this is supported by the content of the GMC's response.

Other points

20. In the original ground for appeal lodged 19 December 2000, the appellant said that:

"… the tribunal was not conducted properly and that insufficient time was given for me to put my case."

21. Having regard to the length of the record of proceedings, the time the hearing took, the detail with which matters are recorded and the significant lack of any complaint from the representative that this was the state of affairs, I do not accept it as an accurate description. The same reasoning applies to the allegations that the medical member "accused [her] husband of falsifying three letters of evidence" and that the appellant had to "… beg and plead to go to the toilet". There is nothing in the record of proceedings which demonstrates that the appeal was anything other than properly conducted; moreover, it specifically refers to the adjournment request to go to the toilet and that it was given. The tribunal had the opportunity to see and hear the appellant and to test the quality of her evidence and found her presentation "bizarre" and her evidence as "exaggerated and inherently improbable". As there is no corroboration for the serious allegations made about the tribunal hearing from the representative, nor any record in the tribunal file of any contemporaneous complaint, one has to be extremely sceptical about such allegations.
22. There is more substance in the appellant's final point:

"The other evidence presented from medically qualified people was not considered in full and the evidence from two of my witnesses, who attended the Tribunal, was not even mentioned, even though one of the witnesses is a qualified nurse."

23. There was a substantial amount of such evidence. The tribunal dealt fully with the letters from the general practitioner (GP) who is, like the EMP, a medically qualified person. The nurse who attended the tribunal has not attended the appellant in her professional capacity but is a friend of many years. The supportive evidence from the practice nurse and the occupational therapist rely on observation and the appellant's own history rather than recorded clinical findings following examination. In any event, the tribunal refers to the other evidence in the case, in general terms albeit without itemising it:

"… the non medical evidence before us required, of necessity, to be based on observation of the appellant only. We saw nothing in the other medical evidence before us to cause us to change our opinion in this case that the EMP's report should be accepted in preference."

24. An Extra Division of the Inner House of the Court of Session on 25 March 2004 in determining an application for leave to appeal by LA v (1) Secretary of State for Work and Pensions and (2) T.V.I., set out:

"… the views of Lord Penrose in Asif v Secretary of State for Home Department 1999 S.L.T. 890 at 894G-H, where he said:

'… nothing could be more destructive of the efficient disposal of immigration appeals than the notion that the adjudicator and the tribunal are under an obligation to carry through a mechanical process of narration of the evidence, analysis of it into classes, and explanation factor by factor of the relevance, or irrelevance, credibility and reliability or otherwise of it'.

That echoed the words of Woolf J. in Crake v Supplementary Benefits Commission [1982] 1 All E.R. 498 at 506B where, in relation to a supplementary benefit appeal tribunal, he said:

'It has got to be borne in mind, particularly with tribunals of this sort, that they cannot be expected to give long and precise accounts of their reasoning; but a short and concise statement in clear language should normally be possible which fairly indicates to the recipient why his appeal was allowed or dismissed; …'.

In our opinion, the question whether the statement of reasons leaves the informed reader and the Court in any real and substantial doubt about how material relevant to their decision was treated by the tribunal should be addressed in the light of the views expressed by Lord Penrose and Woolf J".

25. There has to be a sense of balance in what a tribunal is required to set out in its statement. The tribunal has made sufficient findings of primary fact, underpinned by evidence and having addressed all material matters, to justify its decision, and has adequately explained how it weighed the evidence and has shown that it took into account all relevant evidence. It is not required expressly to mention every item of evidence when the context of the whole decision makes clear why it decided as it did in light of the submissions made. I find no error of law based on inadequacy in the tribunal's explanation of how it considered all the evidence.

Summary

26. For the above reasons, no error of law has been demonstrated. The tribunal did not apply any wrong legal test. It made adequate findings of fact, having regard to the totality of the evidence before it, and sufficiently explained why it took the view of the evidence it did.  There was no irrational assessment of any evidence before it, no sufficiently proved indication of any unfair hearing nor of a major procedural breach. In my judgement, the tribunal paid regard to all the relevant information in the case (it is not required to refer to every item of evidence in repetition of such evidence, because it is clear from the tribunal's overall reasoning that it has taken that information into consideration) and took no account of irrelevant factors. In no respect was its decision perverse.

(Signed)

L T PARKER

Commissioner

Date: 9 June 2006