DECISION OF THE SOCIAL SECURITY COMMISSIONER

Commissioner’s File No.:  CDLA 925 2002

1	I allow the appeal.

2	The appellant is appealing with my permission against the decision of the Stockport appeal tribunal on 6 November 2001 under reference U 40 122 2001 01247.   The decision of the tribunal was that the appellant is not entitled to either component of disability living allowance from and including 1. 2. 2001.

3	For the reasons below, the decision of the tribunal is erroneous in law. I set it aside. I refer the appeal to a new tribunal be reheard in accordance with this decision (Social Security Act 1998 section 14(8) and (9)).

4	Both parties agree with the indication I gave on granting permission to appeal that this decision has to be set aside. This is because of the inadequate reasoning of the tribunal in its statement of reasons. The statement includes the following:

	There were three medical reports before the tribunal, some of which were very extensive and which appeared to have been prepared with a view to litigation. They were dated between 1988 and 1997.  There were also data sheets dealing with various drugs …

	The only independent evidence before the Tribunal and the only recent medical evidence was the examining medical practitioner report. In view of its recent date and independence the Tribunal gave preferential weight to the findings of the examining medical practitioner report.  

Following this, there are six further mentions of the examining medical practitioner report in the statement and none of the other medical evidence. The evidence rejected by the tribunal includes:
a detailed letter from the general practitioner dated in 1997; 
a full report from a consultant orthopaedic surgeon dated in 1988 with 1997 update;
a full report from a consultant psychiatrist dated in 1991 and further report in 1998;  a general practitioner’s drug schedule dated 26 September 2001 with dates of prescription renewals from September 1999.   

5	The main reason for allowing this appeal has occurred in too many other appeals. It is wrong to dismiss evidence of a medical practitioner from one party as not “independent” without indicating why while at the same time accepting medical evidence from the other party as “independent”.  What this tribunal appears to conclude is that the medical evidence from all but the examining medical practitioner is totally lacking in credibility. That is the only conclusion I can draw from the way the tribunal totally ignores the “non-independent” evidence. In that way it dismissed without consideration the evidence of a consultant specialist at a major British hospital who specialises in precisely the problem from which the appellant is suffering, and who is in addition fully recognised as an expert medical witness. That is plainly absurd. 

6	Even if evidence was not “independent”, it should not be dismissed without any consideration at all. The appellant himself put his mental health problems directly in issue in the terms of his appeal to the appeal tribunal. It was also the reason that the appellant gave for not attending a tribunal hearing of this appeal. The tribunal should have considered the issue, but has not. To do so it would have weighed the consultant’s evidence against other evidence. Had the tribunal done this on the question of the appellant’s psychiatric condition, it would have realised that there was little other specific evidence on that issue. And what there was seemed consistent with the consultant’s report. The examining medical practitioner diagnosed anxiety and depression. The two lists of drugs are entirely consistent. The examining medical practitioner noted that the appellant “fulfilled the DSM (?) criteria for depression” and added that “long term (1970 -) history of depression, treated by several psychiatrists”.  The 1998 report from the consultant itself reviews evidence of the appellant’s mental problems from various sources. It is singularly inappropriate to reject that report without even mentioning it.

7	The other reason the tribunal gave was that of dates. That is also inadequate. The range of dates attributed by the tribunal to the dismissed evidence is wrong. The most recent post-dates both the examining medical practitioner report and the decision under appeal.  Further, the appellant explains, but the tribunal appears not to have noted, that the (non-independent) general practitioner refused to give him a new report because “it was not allowed”.  

8	I refer the appeal to a new tribunal to reconsider in full. The appellant and representative should consider together whether they will ask for an oral hearing when this is reheard. It is clearly better if the appellant can attend or at least can be represented.  They may also now be able to produce further evidence. But any new evidence must relate to the date of the decision under appeal, which is March 2001.

								David Williams
									Commissioner

									20 May 2002
[Signed on the original on the date shown]