[2001] UKSSCSC CSI_1180_2001 (07 January 2001) 

DECISION OF SOCIAL SECURITY COMMISSIONER

1.	In my judgment this case is one suitable for summary decision by the Commissioner.  Both the claimant and the Secretary of State have expressed the view that the decision of the Glasgow appeal tribunal dated 12 June 2001 is erroneous in law.  Having considered the decision I have decided to exercise the power conferred by section 14(7) of the Social Security Act 1998.

2.	Further and in exercise of the power conferred by regulation 19(3) of the Social Security Commissioners (Procedure) Regulations 1999 I dispense with the procedure set out in paragraphs (1) and (2) thereof.

3.	I set aside the said decision of the appeal tribunal and refer the case to another tribunal for determination afresh in accordance with the directions following.

4.	The new tribunal will have regard to the history of the case.  The relevant accident was on 10 October 1995.  Since then, there have been successive assessments for disabilities resulting from injury to the left shoulder and to the lower back.  The last two assessments have been made following advice from the same doctor.  On 25 October 1999 that doctor advised that the claimant should be re-assessed at the same figure as he had been given on the three prior occasions.  This was therefore at 14% for spinal dysfunction and 38% for upper limb dysfunction.  However, following examination on 31 August 2000, the doctor now advised that the latter figure be reduced to 20%.  His reasons for that change of opinion are clearly set out on page 57 of the papers.

5.	The new tribunal’s starting point is therefore to state whether it agrees or disagrees with that latter opinion and how and why its own conclusion is reached, if different.

6.	In a renewal or re-assessment, there is no presumption as to consistency.  However, the requirement for a tribunal to give adequate underpinning facts and reasons for its decision means that the new tribunal must explain why, if so, the new assessment is lower, unless that is obvious from its findings (for example, agreement with the opinion expressed at page 57 that there is better movement of the left shoulder or expression of a belief that the claimant was previously over-assessed).  Evaluation of the evidence and determination of the merits is for the tribunal, and provided the inferences drawn by the new tribunal are such as a reasonable tribunal could make, there is no error of law.

7.	In explaining its assessment, I direct the new tribunal to follow the approach set out by Commissioner Jacobs in CI/499/2000 (24/01), particularly at paragraphs 19 to 25.

8.	A previous adjudicating medical authority in this case referred to “functional overlay”.  The tribunal whose decision is now set aside used the term “illness behaviour”.  The new tribunal is reminded that the issue, under s.103 of the Social Security Contributions and Benefits Act 1992, is whether “he suffers as the result of the relevant accident from loss of physical or mental faculty such that the assessed extent of the resulting disablement amounts to not less than 14 per cent. …..”.  The new tribunal, if it considers that there is an insufficient organic basis for all of the claimant’s problems, must decide if he is consciously exaggerating or if he is genuine and his complaints form part of an abnormal illness behaviour linked to his accident.  In the latter situation, it can form part of the relevant loss of faculty.  The courts have long recognised there can be compensation for an unconscious reaction to physical injury sustained, provided the latter remains a material cause of the former. 

9.	It is emphasised that will be a complete rehearing on the basis of the evidence and arguments available to the new tribunal, and the determination of the claimant’s case on the merits is entirely for them.  The onus of proof on all matters lies on the claimant.

					(signed)
					L T PARKER 
					Commissioner
					Date:  7 January 2001