THE SOCIAL SECURITY COMMISSIONERS

Commissioner’s Case No: CIB/3985/2001

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT 1992
SOCIAL SECURITY ADMINISTRATION ACT 1992
SOCIAL SECURITY ACT 1998

APPEAL FROM A DECISION OF AN APPEAL TRIBUNAL ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER
MR COMMISSIONER JACOBS

DECISION OF THE SOCIAL SECURITY COMMISSIONER
1.	My decision is as follows. It is given under section 14(8)(b) of the Social Security Act 1998.
1.1.	The decision of the Manchester appeal tribunal, held on 1st August 2001, is erroneous in point of law.
1.2.	I set it aside and remit the case to a differently constituted appeal tribunal.
1.3.	I direct that appeal tribunal to conduct a complete rehearing of the issues that arise for decision. In particular, the tribunal must determine the claimant’s capacity for work from and including 26th March 2001. In doing that:
The appeal tribunal must not take account of circumstances that were not obtaining at the date of the decision under appeal: see section 12(8)(b) of the Social Security Act 1998, as interpreted in R(DLA) 2 and 3/01.
If there is variation in the claimant’s disabilities, the appeal tribunal must apply the approach laid down by the Tribunal of Commissioners in R(IB) 2/99.
Before this case is listed for rehearing, it must be put before a legally qualified panel member to consider whether it is necessary or appropriate to give directions under regulation 38(2) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999. In particular, the panel member will need to give directions for the Secretary of State to provide the previous assessments of the claimant’s capacity for work and, perhaps, to make a further submission on their relevance. 
The appeal to the Commissioner
2.	This is an appeal to a Commissioner against the decision of the appeal tribunal brought by the claimant with the leave of a district chairman. The Secretary of State does not support the appeal.
The issue
3.	The issue in this case is whether the tribunal should have obtained and considered the evidence of the claimant’s previous assessments for the all work test or personal capability assessment. The claimant’s grounds of appeal raise other issues, but I have not considered them. Any error that did arise on the facts, will be subsumed by the rehearing. 
4.	It is no longer necessary as a matter of law for an appeal tribunal in every case to have before it and to consider the previous assessments of the claimant’s capacity for work. However, that may be necessary in the circumstances of the case. There are two reasons why the tribunal should have considered the earlier assessments in this case. 
A fair hearing – natural justice and equality of arms
5.	First, the claimant argued that his condition had not changed and that the Secretary of State had not given sufficient weight to the history of the condition. 
6.	A claimant has to have a fair hearing. That has always been a requirement of natural justice. It is also now part of a claimant’s Convention right under Article 6(1) of the European Convention on Human Rights and Fundamental Freedoms. Part of that right requires the tribunal to follow a procedure that ensures equality of arms between the claimant and the Secretary of State. That means that it must maintain a fair balance between the parties: see the decision of the European Court of Human Rights in Dombo Beheer BV v The Netherlands (1993) 18 European Human Rights Reports 213 at paragraph 33. 
7.	The tribunal had to consider relevant issues raised by the claimant. In this case the claimant raised the issue of the continuity of his disablement. He identified evidence that he considered relevant to that issue. He could not produce it himself, because it was held by the other party to the proceedings, the Secretary of State. The Secretary of State did not produce that evidence. The only way that the claimant could obtain it was by direction of the tribunal. The tribunal refused to obtain it, because 
	‘The Tribunal was satisfied that there was sufficient evidence to make a decision in this case, having got a detailed medical report.’
That report must be the examining doctor’s report. 
8.	The tribunal had in effect, if not in so many words, a request by the tribunal to adjourn and direct the Secretary of State to produce the earlier assessments. The tribunal had to decide whether that evidence was potentially relevant. In some circumstances a later report may show that an earlier report is not relevant. It might, for example, show a significant change, like an operation or a new injury. However, there was nothing of that kind in the examining doctor’s report in this case. If the evidence was relevant, the tribunal should have adjourned for the evidence to be produced, unless the claimant was to blame for the evidence not being available: see the decision of the Court of Appeal in R v Medical Appeal Tribunal (Midland Region), ex parte Carrarini reported with R(I) 13/65.  
9.	The fact that the earlier assessments were not available was in no way the fault of the claimant. He had referred to the history of his illness in his letter of appeal. Despite that, the Secretary of State had not included the earlier evidence in the submission to the tribunal. The only issue was relevance. The tribunal’s reason, however, does not deal with that. Rather, it begs the question, by accepting as accurate and sufficient the report which, on the claimant’s argument, the other evidence would show to be incomplete and insufficient. The flaw in the tribunal’s reasoning is self-evident.
Variability
10.	The second reason why the tribunal should have obtained the evidence of previous assessments is that the claimant’s condition was variable. This was acknowledged by the decision-maker on page 47. If a claimant’s condition is variable, the examination may reflect the claimant’s condition at the time, but not give an accurate overall picture. Assuming that the claimant’s condition has not improved, the variation in that condition is better viewed over a series of assessments. 
11.	The tribunal’s explanation that it had a detailed medical report did not justify its refusal to obtain the earlier assessments, because it did not deal with the issue of variation and the relevance of variation to that.
The Secretary of State’s argument
12.	The Secretary of State argues that the tribunal was entitled, but not required, to consider the earlier evidence. I reject that argument. The tribunal had a power to adjourn for the evidence to be produced. A power does not confer a duty. But the circumstances of a case may be such that there is only one proper exercise of that power, so that any other exercise of it is an error of law. 
Conclusion
13.	In the circumstances of this case, the tribunal should have adjourned the hearing for the evidence of the earlier assessments to be produced by the Secretary of State. Its failure to adjourn deprived the claimant of a fair hearing.
Summary
14.	The tribunal’s decision is wrong in law and must be set aside. A rehearing is necessary, because the evidence of the earlier assessments must be considered. That assessment will benefit from the experience of the medically qualified panel member at the rehearing. 

Signed on original	Edward Jacobs
Commissioner
22nd January 2002