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You are here: BAILII >> Databases >> UK Social Security and Child Support Commissioners' Decisions >> [2008] UKSSCSC CIB_3785_2007 (29 January 2008) URL: http://www.bailii.org/uk/cases/UKSSCSC/2008/CIB_3785_2007.html Cite as: [2008] UKSSCSC CIB_3785_2007 |
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[2008] UKSSCSC CIB_3785_2007 (29 January 2008)
I SET ASIDE the decision of the Basildon appeal tribunal, held on 13 June 2007 under reference 134/07/00193, 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 tribunal must investigate and determine the claimant's capacity for work on and from 14 February 2007 in according with my analysis of the proper approach to a mental disabilities section in this decision.
In doing so, the tribunal The appeal tribunal must not take account of circumstances that were not obtaining at that time: 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.
I encourage the claimant to attend the rehearing of her appeal. The tribunal will benefit from her evidence, although I cannot say whether that will be to her advantage. If she feels that she cannot attend, she can ask for a hearing in her home. She will need medical evidence to support that request, which will have to show that she is unable to attend the hearing.
History and background
'Where there is a conflict between [the claimant's] evidence and that of the Examining Medical Practitioner we prefer the latter on the ground that it is likely to be the more objective, being based on clinical findings of a doctor who is disinterested in the outcome of the claim. The evidence from [the claimant's] own doctors does not in our opinion cast doubt on the accuracy of that report. [The claimant] did not wish to attend an oral hearing and the tribunal was not able to question her about the discrepancies and form an opinion based on her replies.'
'The tribunal took a global approach to the evidence, simply accepting the report of the examining medical practitioner. The tribunal's reasons are inadequate to explain why it did so. They were that the report 'is likely to be more objective [than the claimant's evidence], being based on the clinical findings of a doctor who is disinterested in the outcome of the claim.' The doctor diagnosed anxiety and depression. They are mental conditions to which the mental disabilities section of the personal capability assessment applied. That section does not, for the most part, depend on clinical findings. The tribunal's reasons do not, therefore, relate to the relevant evidence. Moreover, if the reasons given by the chairman really were the reasons of the tribunal in deliberation, they show that the tribunal misunderstood the nature of that section of the assessment.'
Analysis
'14. There are four questions that may have to be answered by an examining doctor in the application of the mental disabilities section of the all work test.
14.1 Does the claimant have a specific mental illness or disablement? This involves a clinical opinion by the examining doctor. …
14.2 Does the claimant's evidence report manifestations that fall within any of the descriptors? This does not involve a clinical opinion.
14.3 Does the doctor accept the claimant's evidence? Again, this does not involve a clinical opinion.
14.4 If the doctor accepts the claimant's evidence, a question of causation arises: see the decision of the Commissioner in CIB/14202/1996, paragraph 6. The question is: are the manifestations reported by the claimant and accepted by the doctor a result of the claimant's mental illness or disablement? For example, does the claimant not care about her appearance and living conditions because she is depressed or because she is an untidy and slovenly person? This may involve a clinical opinion.'
Disposal
Signed on original on 29 January 2008 |
Edward Jacobs Commissioner |