DECISION OF DEPUTY SOCIAL SECURITY COMMISSIONER

Decision

1.	I hold that the tribunal erred in law. The Statement of Reasons is inadequate.  I remit to a differently constituted tribunal to re-hear the appeal.

2.	If the electronic medical report is to be competent evidence before the tribunal then it will have to be certified in the manner I set out below.

Background

3.	The claimant applied for incapacity benefit and was entitled to it. She became subject to a personal Capacity Assessment and as a result the decision maker decided that the PCA was not satisfied. As this was a relevant change of circumstances the original decision was superseded and the entitlement to incapacity benefit was terminated. The decision was reconsidered but not revised.  The claimant then appealed to the tribunal.

Appeal to tribunal

4.	On 27 September 2004 the tribunal refused the appeal. A Statement of Reasons was issued.

Appeal to the Commissioner

5.	Having been refused leave to appeal by the Chairman, the claimant was granted leave to appeal by the Commissioner. The grounds of appeal are that the tribunal had given inadequate reasons in respect of a number of issues specified in the grounds of appeal. Further that the tribunal had not dealt with the issue raised before them that the BMAS Electronic Report should not have been admitted in evidence, because it was not signed.

6.	The Secretary of State accepted that the tribunal had erred in law, but suggested that the tribunal had reached the only decision that the tribunal could have reached and that I should substitute my decision to the same effect for the decision of the tribunal.

Discussion

Inadequate Reasons

7.	I allow the appeal because I agree that the tribunal has erred in law by giving inadequate reasons in respect of most of the points raised in the grounds of appeal. This appears to be accepted by the Secretary of State [see paragraphs 2 & 3 of the Submissions], although the submissions on the grounds of appeal appear to suggest that there was no error in the reasoning. 

8.	I have decided to remit the appeal to a differently constituted tribunal, because the main issue in the case appears to be the credibility and reliability of the claimant’s evidence given to the tribunal. While I can assess the paper evidence, it would be wrong of me to try to assess the credibility or reliability on what the claimant said to the tribunal. This is very much a matter for the tribunal, but if they have erred in law in failing to give adequate reasons for accepting one body of evidence to another, I consider it inappropriate for me then to accept their assessment of credibility and reliability. Further if the electronic report is to be considered, there may be issues of reliability that the claimant might want to raise.

Electronic communications or data

9.	The interesting issue raised by the claimant is the point put to the tribunal [see page 145] that the BAMS electronically generated medical report should not be accepted because it was not signed. Reference was made to the decision by Mr Commissioner Walker in 67/95*. The Report is clearly a computer generated Form IB65, which has a footer “Report on [claimant] completed by Dr […] on 6 May 2004. Ref: 620109. Page x of 20”. The footer appears on every page.  The Declaration on the last page has in type “Doctor’s Name   Dr […]”. 

10.	The Secretary of State refers to this as an electronic medical report and that is why it does not have a signature. It was submitted:

“The arrangements made by the Medical Services to create a logical association between an electronic report and the doctor’s log-in credentials meets the requirements of Section 7 of the Electronic Communications Act 2000. In other words sufficient safeguard is in place that any given report can be securely associated with the individual doctor, through the use of a unique identifier (the doctor’s GMS registration number) … There is no issue in respect of the evidential burden in either criminal or civil cases.”

The tribunal has erred in law in not dealing with this submission in their decision and that is also a ground for upholding the appeal.

11.	The point raised is an important point. I will give my decision on this issue. The Secretary of State relies on section 7 of the Electronic Communications Act 2000, which provides:

“7(1) In any legal proceedings-
(a)	an electronic signature incorporated into or logically associated with a particular electronic communication or particular electronic date, and
(b)	the certification by any person of such a signature shall each be admissible in evidence in relation to any question as to the authenticity of the communication or data or as to the integrity of the communication or data.”

I take from section 7(1) that in legal proceedings that an electronic signature may be proved by the certification by a person of such a signature. This is admissible in any question as to the authenticity of the communication. 

Section 7(2) defines electronic signature as:

“… so much of anything in electronic form as (a) is incorporated into or otherwise logically associated with any electronic communication or data; and (b) purports to be so incorporated or associated for the purposes of being used in establishing the authenticity of the communication or data, or both”.

There is nothing in the document to indicate what might be the “electronic signature” or the so called “unique identifier” unless it is the reference.

Section 7(3) goes on to define for the purposes of this section that “certification” is achieved by a statement made by a person confirming that (a) the signature, (b) a means of producing, communicating or verifying the signature, or (c) a procedure applied to the signature is a valid means of establishing the authenticity of the communication.

12.	In the present case, the claimant challenged the authenticity of the doctor’s medical report, which appears to have been an electronic communication from the doctor. As the authenticity of communication was challenge it was incumbent on the Secretary of State to prove that it was authentic by way of the procedures set out in section 7. This was not done in the present case and accordingly, the tribunal ought to have held that the electronically produced, doctor’s report was not admissible in evidence.

13.	It might be open to the Secretary of State to make an order by Statutory Instrument under section 8 of the 2000 Act to authorise the use of electronic medical reports in proceedings before the appeal tribunals or before the Commissioners. I am not told that this has been done.

14.	I have dealt with this under the Electronic Communication Act 2000, because the Secretary of State relies on this Act. This suggests that the Report was originally an electronic communication or electronic data. 

15.	I was not clear how the Report was created or passed to the department. I directed that the Secretary of State should explain how the medical Report system and Report worked; to explain how it came under the Electronic Communications Act 2000 and how the tribunal could be satisfied as the authenticity and integrity of the communication. A copy of the Response to my Direction is annexed hereto and explains how the system works.

16.	It should also be noted that as the Report was originally in electronic form on the computer, that a further print out from the computer is treated as a further original and not a copy of the first printout; DPP v Hutchings [1991] RTR 380.

17.	In Scotland, under the Civil Evidence (Scotland) Act 1988 a copy document has to be certified as a true copy of the original by the person making the copy; section 6. This means that it is only the person who is in a position to copy from the original, who can certify the copy. A person copying the copy cannot certify that the copy is a copy of the original.. The document may be certified as part of the records of an undertaking if it is so certified by an officer of the undertaking; section 5. When so certified it is admissible in evidence in any civil proceedings “unless the court otherwise directs.” 

18.	Similar provisions apply in England. Section 8 of the Civil Evidence Act 1995 states that where a statement contained in a document is admissible as evidence in civil proceedings it may be proved “(b) whether or not that document is still in existence, by production of a copy of that document … authenticated in such manner as the court may approve”.

19.	I am not to be taken as saying that certification is required every time, because I assume that most claimants will accept the printout or copy of the printout as sufficient – CSIS/69/1993 at paragraph 19. However, if the document is challenged then it will required to be certified in a way that makes it into competent evidence.

20.	As the Electronic Medical Report was challenged in the present case, it can only be competent evidence if it was properly certified under section 7(1) of the 2000 Act. It seems clear to me that it was not so certified. Further a photocopy was produced, of what I assume was an original printout from the department’s computer. The photocopy was only acceptable evidence [this being an English Appeal] if “authenticated in such manner as the court may approve”. If the Secretary of State wants this report to be considered by the tribunal rehearing the appeal, it will have to be certified in accordance with the 2000 Act and the photocopy will have to be authenticated, unless the claimant agrees to accept the photocopy.

21.	Reliability is a separate issue. The Secretary of State has explained how the report is prepared. If the claimant wants to challenge the reliability of the report as generated by the system then this is something that will have to be done before the tribunal. The reliability or credibility of competent evidence is a matter for the tribunal. I am not to be taken as saying that the electronically generated report is necessarily unreliable, because the system appears to be reasonably robust, but at the end of the day that will be a matter for the tribunal.

					(Signed)
					Sir Crispin Agnew of Lochnaw Bt QC
					Deputy Commissioner
					Date:  6 May 2005

Annex:  Secretary of State’s Response to Commissioner’s Direction dated 30/03/2005