DECISION OF THE SOCIAL SECURITY COMMISSIONER
Commissioner's Case No: CDLA/577/2002
- The claimant's appeal is allowed. The decision of the Chippenham appeal tribunal dated 15 October 2002 is erroneous in point of law, for the reason given below, and I set it aside. The case is referred to a differently constituted appeal tribunal for determination in accordance with the directions given in paragraphs 8 and 9 below (Social Security Act 1998, section 14(8)(b)).
- The claimant appealed against the decision dated 15 May 2001 that he was not entitled to disability living allowance (DLA) from and including 19 February 2001. That decision was made partly on the basis of a report by an examining medical practitioner (EMP2) on 8 May 2001. There had been an examination by another EMP (EMP1) on 19 April 2001, but a doctor apparently employed in Medical Services had instructed that another report be obtained as "we cannot use" EMP1's report. EMP1's report was much more favourable to the claimant than that of EMP2.
- An officer in the Disability Benefits Centre who was considering the claimant's appeal very properly wrote to the doctor to say that the appeal tribunal would have to be informed that there were two EMP reports and might ask for a copy of the first one. He asked for more details in writing of why the first report could not be used, was it the result of Medical Services quality monitoring (IQAS) and was the claimant given a reason for the second EMP visit. The following reply was given by a different doctor in Medical Services ("provided by SEMA Group on behalf of the Benefits Agency"):
"This case was picked up on `New Entrant' IQAS monitoring. [EMP1] had not done EMP reports for some time, but was confident she still had the necessary skill set. This report was totally unfit for the purpose and is therefore not submitted to the decision maker. [EMP1] has declined formal retraining in EMP work and has subsequently been disapproved for this purpose.
I do not know what the claimant was told."
Again very properly, the report of EMP1 was included in the papers for the appeal tribunal as well the report of EMP2. Relevant evidence in favour of the claimant which is in the possession of the Secretary of State must be produced to the appeal tribunal. The Secretary of State's written submission described the circumstances in which the report of EMP1 was not considered by the decision-maker and relied on the independent and objective assessment of EMP2.
- At the hearing, the claimant relied on the report of EMP1 and gave also gave detailed evidence. The appeal tribunal disallowed the appeal, relying in particular on the report of EMP2 and what the claimant was recorded as having said to him, as well as on some of his oral evidence. In relation to the report of EMP1, the appeal tribunal said this:
"[The claimant's] representative wished to rely on matters in the first Visiting Doctor's (Examining Medical Practitioner) report which was withdrawn by the Benefits Agency as unfit for the purpose, the doctor having since been disapproved for the purpose of preparing such reports. The Tribunal did not find that they were prepared to give any credence to the first report and accept the submission by the Benefits Agency that it should not be used, as such a positive statement would not have been made about it without [good] grounds, especially as the doctor had since refused to be retrained."
- The claimant now appeals against the appeal tribunal's decision with my leave. The appeal is not supported on behalf of the Secretary of State. In the submission dated 14 March 2002 the representative of the Secretary of State submitted that the appeal tribunal "acted in a reasonable manner" in concluding that they were not prepared to give credence to the report of EMP1. The submission went on to submit that the appeal tribunal's conclusions on the rest of the evidence were reasonable. I agree with that latter point. The observations dated 23 April 2002 by the claimant's representative, Sheila Bluer of North Wilts CAB, pointed out that it was not known why EMP1 declined formal retraining and that the disapproval seemed to result from the declining of retraining. That was said to be relevant because there did not appear to be anything wrong with the report of EMP1.
- I reject the Secretary of State's submission. There does not seem to be anything on its face which is wrong with the report of EMP1. It is perhaps rather discursive, and reports more on the claimant's statements, circumstances, feelings and reactions than on objective clinical findings. It is thus rather different in tone from many EMP reports. Some might say that it gives the impression of having been written by a human being and not a completely detached clinical observer, if such a state is possible. All the questions are completed, though, and there is a good deal of detail. It certainly provides relevant evidence and is from a professionally qualified observer. It is in general unacceptable for an appeal tribunal to decline to give any weight to relevant evidence in favour of a claimant simply on the ground that the Benefits Agency would not have rejected it if there had not been a good reason. The appeal tribunal must have and express some independent reasons of its own for declining to give any weight to the evidence. That might be done by accepting some explanation on behalf of the Benefits Agency or Medical Services, by pointing to some defects in the evidence itself, or in some other manner. And it is a very strong thing to give no weight at all to a piece of apparently relevant evidence, rather than giving it the appropriate weight in comparison to other evidence. In my judgment, the mere facts that EMP1 declined formal retraining after the rejection of the report and subsequently ceased to be approved for the purposes of preparing reports are not sufficient to deprive her report of any weight. There are a multitude of reasons why she might have declined retraining or ceased to be approved.
- Therefore, I conclude that the appeal tribunal went outside the bounds of reasonableness in the way in which it dealt with EMP1's report. It should have weighed up that report with all the other evidence in reaching its conclusions and findings of fact. There was an error of law which requires me to set the appeal tribunal's decision aside. Given the state of the other evidence, this is certainly not a case where I can say that the error was not material to the appeal tribunal's decision.
- The claimant's appeal against the decision dated 15 May 2001 is referred to a differently constituted appeal tribunal for determination in accordance with the following directions. There must be a complete rehearing of the appeal on the evidence presented and submissions made to the new appeal tribunal, which will not be bound by any findings made or conclusions expressed by the appeal tribunal of 15 October 2001. That evidence will include the report of EMP1. The new appeal tribunal must consider what weight to give to that report in the light of all the other evidence which it has. The evidence will also, I hope, include oral evidence from the claimant. I need give no directions of law about the conditions of entitlement to DLA. The evaluation of all the evidence will be entirely a matter for the judgment of the members of the new appeal tribunal.
- If there has been any decision on a further claim for DLA from some date after 15 May 2001, the Secretary of State should supply details to the new appeal tribunal of the decision and of the evidence on which it was based.
(Signed) J Mesher
Commissioner
Date: 22 May 2002
