Decision No: C27/98(IB)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

	SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS
	(NORTHERN IRELAND) ACT 1992

	SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS)
	(NORTHERN IRELAND) ACT 1992

	INCAPACITY BENEFIT

	Appeal to the Social Security Commissioner
	on a question of law from the decision of the
	Belfast Social Security Appeal Tribunal
	dated 21 November 1997

	DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the Adjudication Officer, leave having been granted by the Chairman against the decision dated 21 November 1997 of a Social Security Appeal Tribunal (hereinafter called "the Tribunal") sitting at Belfast.  That Tribunal had allowed the claimant's appeal and had awarded her Incapacity Benefit from 23 September 1997 on the basis of her having scored fifteen points on the "All Work Test".

2.	I held an oral hearing of the matter which was attended by Mr Fletcher of Central Adjudication Services who represented the Adjudication Officer and by Mrs D... and her representative Mr McVeigh of the Citizens Advice Bureau.  Mr Fletcher had set out his grounds of appeal in a letter dated February 1998.  In essence the ground was that the Medical Assessor, Dr Hinds, had made an evaluation of the evidence before the Tribunal and given his judgement as to which descriptors applied.  Mr Fletcher submitted that this was an issue that the Tribunal was required to decide and that it should not have invited the Medical Assessor to give his view of the appropriate selection.  He further submitted that there was no evidence that there was anything exceptional in the case which would have warranted an opinion by the Medical Assessor in the manner envisaged by the Great Britain Commissioner in decision R(I) 14/51.  Mr Fletcher said that it was not possible to ascertain that the Tribunal had reached its own conclusion about which descriptors applied and the decision was accordingly in error of law.

3.	Mr McVeigh did not oppose the appeal but he stated that the Tribunal had made adequate findings of fact to support the score of 15 points without having to rely on 
	the evidence of the Medical Assessor.  At hearing Mr Fletcher asked me to give guidance on the role of the Medical Assessor.

4	At hearing Mr Fletcher further submitted that the Tribunal had given no indication of why it rejected the report of the Examining Doctor.  This was particularly necessary as there had been no results of the MRI scan carried out on Mrs D... and the Tribunal was clearly apparently relying on Dr Hinds' opinion.  

5.	I do consider that the Tribunal's decision was in error of law for a variety of reasons.  Firstly because the Tribunal did not give any indication as to why it had rejected the Examining Doctor's report and the reason was not apparent by implication.  Secondly the Tribunal has made what it describes as findings of fact without any evidence being recorded to support certain of its findings.   I am unable to determine what evidence, if any, the Tribunal had for its finding on walking, standing etc.  For example, in her questionnaire the claimant said she had no problem standing.  The examining doctor assessed her as having no problem standing, the Adjudicating Officer awarded no points, nothing about standing is recorded under "Record of Proceedings" yet 3 points are awarded.  It may be that the matters recorded under findings of fact are actually evidence but it is not possible to know from the content whether that is so or not.  For the above reasons I set the decision aside as in error of law.

6.	With regard to the role which the Medical Assessor played in this case, while I would not go so far as to say that the Tribunal erred in law in relation to the questions it put to the Medical Assessor, I am of the view that it would have been preferable not to ask him for an opinion on which activities applied to the claimant.  That was for the Tribunal to decide and a direct opinion was not necessary (save in unusual circumstances which do not seem to be present in this case).  I do not wish to be unduly critical of the Tribunal in this respect as there is a narrow dividing line between what is and is not the province of the Medical Assessor.  Looking, however, at the section "Reasons for decision" in the Tribunal's decision, it seems that the Assessor was asked to comment on the applicability of certain activities to Mrs D...'s particular case as opposed to the generality of persons with her type of complaint.  The Chairman has recorded "Dr Hinds, our medical assessor, was asked if he could comment, having seen Mrs D... and the papers and heard Mrs D...'s evidence, about which descriptors would be consistent with Mrs D...'s complaint of neck pain and immobility.  Dr Hinds replied - sitting, rising from sitting, standing, walking, lifting and carrying and manual dexterity."   It appears that this opinion was part of the reason for the Tribunal's decision.

7.	It seems appropriate to try to give some guidance in relation to the role of the Assessor.  I would begin by saying that the Assessor is a Medical Assessor.  He is to assist the Tribunal on medical matters.  He is not a witness.  Secondly it is for the Tribunal alone to decide, on the evidence as assessed, which activities are applicable to the particular claimant and which descriptors best fit the claimant's limitations within those activities.

8.	As the Great Britain Commissioner stated in R(I)14/51:-

		"The assessor must not be regarded as a witness, for he cannot be 
		cross-examined by the claimant or the local insurance officer (see 
		per Viscount Simon, L.C. in Richardson v Redpath Brown and Co., Ltd.,  
		36 B.W.C.C 259 at page 265).  He is not a member of the tribunal and 
		has no judicial powers or duties; the tribunal alone must decide all 
		the issues in the case and must not accept the advice of its assessor 
		on any medical matter unless they are satisfied that having regard to 
		all the evidence of the case the advice is correct."

9.	How therefore should this be applied in practice?  A main part of the Medical Assessor's role is to assist the Tribunal to understand and appreciate the significance of medical evidence and he may give general medical background to enable the Tribunal to do so.  He can, for example, explain and indicate the significance of clinical data and findings or the lack of same, indicate the strength, dosage and likely side effects of medication, indicate the treatment normally given to various conditions, the likely success of such treatments and indicate further treatments that are available.  He can also indicate what limitations, findings on examination and treatment could usually be expected in cases of the level and type of complaint being made by the claimant.  The above list is not exhaustive or prescriptive.  It is quite evident that in the proper discharge of his function he may be of considerable assistance to the Tribunal in its functions of assessing and evaluating evidence (both from medical and non-medical sources) and in the resultant fact finding.  It is, however, for the Tribunal to evaluate the evidence and make the relevant findings of fact. In so doing it may, of course, take into account the information supplied by the Medical Assessor.  It must, however, make up its own mind on the issues which it has to decide.  In Incapacity Benefit cases this will often involve the evaluation of evidence and scoring on the All Work Test based on the accepted evidence.  It is not for the Medical Assessor to decide on the weight to be given to any particular piece of evidence nor what activities or descriptors are appropriate in a particular case.  It follows therefore, as the Commissioner stated in R(I)14/51 that "it is preferable not to invite an assessor to give a direct opinion upon a crucial issue in the case."  

10.	It may be, at times, that a Tribunal is forced to do this but it can usually be avoided by the Tribunal obtaining full medical data and drawing its own inferences.  In the unusual circumstances, however, where either invited or uninvited, a Medical Assessor does express an opinion on a crucial issue in the case, this does not per se render the Tribunal's decision in error of law.  Provided that the Tribunal does not consider itself bound by that opinion and adopts it only if it thinks it correct, the Tribunal's decision will not for that reason be in error of law.  The central question is whether or not the Tribunal has made up its own mind on the questions before it based on its own assessment of the evidence.  The Medical Assessor's views on any particular case are not, of course, evidence.

11.	For the reasons set out at paragraph 5 above I set the decision aside as in error of law and remit the matter to a differently constituted Appeal Tribunal which should bear in mind the views expressed above.

	(Signed):  M F Brown
		
	COMMISSIONER

	24 February 1999