[2006] UKSSCSC CIB_3108_2005 (31 May 2006)
CIB/3108/2005

DECISION OF THE SOCIAL SECURITY COMMISSIONER
  
1.	I allow the claimant’s appeal.  I set aside the decision of the Bexley appeal tribunal dated 26 May 2005 and I refer the case to a differently constituted appeal tribunal for determination.  I draw the parties’ attention to my suggestions in paragraph 12 as to the action they might take before the appeal tribunal hears the case.

REASONS

2.	The claimant suffers from, among other things, low back pain, possibly as a result of a road traffic accident in 1978.  He ceased employment in an ambulance service in the 1990s and, after a period of self-employment, was treated as incapable of work from 17 April 1997.  On 15 December 2004, the Secretary of State superseded the claimant’s award of incapacity benefit following a personal capability assessment and decided that the claimant was not entitled to incapacity benefit from that date because he was not incapable of work.  The claimant appealed.  The tribunal found that he scored 6 points on the physical descriptors and 3 on the mental health descriptors, neither of which was sufficient to satisfy the personal capability assessment and, as none of the other grounds for being regarded as incapable of work applied, the claimant’s appeal was accordingly dismissed.  He now appeals against the tribunal’s decision with my leave and the support of the Secretary of State.

3.	Among the claimant’s grounds of appeal is one alleging that the medically qualified panel member sitting on the tribunal refused to look at X-rays produced by the claimant at the hearing and that he “stated that it was classed as a medical”.  There is a reference to X-rays in the record of proceedings, from which it appears they were of the claimant’s lumbar spine and had been taken at a hospital the month before the hearing.  It also appears that the claimant said that the bones looked as though they were touching and that the medically qualified panel member said that the claimant might have misinterpreted the X-rays.  However, there was no reference either in the record of proceedings or the statement of reasons to the claimant asking the tribunal to look at the X-rays or to the tribunal declining to do so.

4.	When I first read the papers, it seemed to me that, if I accepted the claimant’s account of what had been said to him, his ground of appeal raised an arguable point of law.  Acting under regulation 20(2) of the Social Security Commissioners (Procedure) Regulations 1999 (SI 1999/1495), I therefore directed both members of the tribunal to state, if they could remember, whether the medically qualified panel member did refuse to look at X-rays produced by the claimant and, if so, on what ground.

5.	The medically qualified panel member said that he had no recollection of the particular hearing, which is understandable, but he added –

“… I would, as always, proceed under the direction of the legal chairman in what evidence I should review.  My understanding is that no clinical examination of the appellant is to be undertaken as most chairmen outline in their introduction.  Looking at X-rays could certainly be interpreted as part of a clinical examination.  Further to this, as I have no special expertise in the interpretation of X-rays I could mislead the Tribunal if I did so.” 

6.	The legally qualified panel member who sat as the chairman said –

“I do recall the hearing which took place on 26th May 2005 because subsequently I had to prepare a Statement of Reasons.  However, my recollection may not be entirely accurate.  [The medically qualified panel member] certainly did not use the words ‘stated that it was classed as a medical’.  He did decline to look at the x-rays.  The claimant was very insistent in all his evidence, including his request to look at the x-rays.  [The medically qualified panel member] declined, indicating that, since this was a legal tribunal it was not appropriate for him to conduct anything which might be seen as a medical or clinical examination.  I know his general view to be similar to that of other tribunal members, namely that, since he is not a trained Radiologist he would not be able to form any conclusive opinion from sight of an x-ray.”

7.	Whatever, the exact words used may have been, it seems to me that the chairman’s statement supports the claimant’s contention that the medically qualified panel member declined to look at the X-rays because to do so would amount to conducting a medical examination.  The medically qualified panel member’s statement suggests that he would not be surprised if he had said something to that effect.  The Secretary of State submits that that approach is wrong.

8.	Section 20(2) of the Social Security Act 1998 permits a tribunal to refer a person “in respect of whom the claim is made” or “whose entitlement is at issue” to a medical practitioner for an examination in prescribed circumstances.  Section 20(3) provides –

“At a hearing before an appeal tribunal, except in prescribed cases or circumstances, the tribunal –
    (a)	may not carry out a physical examination of the person mentioned in subsection (2) above; and
    (b)	may not require that person to undergo any physical test for the purpose of determining whether he satisfies the condition mentioned in section 73(1)(a) of the Contributions and Benefits Act.”

The exceptions are prescribed by regulation 52 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (SI 1999/991) and are more or less those matters that were within the jurisdiction of medical appeal tribunals immediately before the 1998 Act came into force – the assessment of disablement in respect of severe disablement allowance and disablement benefit and matters to do with prescribed injuries and diseases.  The prohibition in section 20(3)(a) therefore applies in incapacity benefit cases where the personal capability assessment is in issue.

9.	I agree with the Secretary of State that studying an X-ray is not prohibited by section 20(3)(a).  The prohibition applies to a physical examination “of the person” and not of the evidence in the person’s case.  Moreover, the term “physical examination” plainly does not comprehend the walking test that used to be conducted by medical appeal tribunals in mobility allowance cases, where a tribunal would ask a claimant to demonstrate his or her walking ability over a substantial distance outside the building where the hearing took place.  Such tests are prohibited by section 20(3)(b), which would be unnecessary if they were forbidden by section 20(3)(a).  As was observed in R(DLA) 5/03, section 20(3) of the 1998 Act replaced section 55(2) of the Social Security Administration Act 1992, which in turn had re-enacted section 115D(2) of the Social Security Act 1975.  The earlier provisions applied only to disability appeal tribunals, which were introduced in 1992 to adjudicate upon claims for disability living allowance and, in particular, to take on the role that medical appeal tribunals had previously had in relation to mobility allowance.  If observing a claimant walking would not be forbidden but for section 20(3)(b), other observations of the claimant are also not forbidden by section 20(3), as was decided by a Tribunal of Commissioners in Northern Ireland in R 1/01 (IB)(T), to which the Secretary of State’s representative referred me.  The Tribunal of Commissioners said that the term “physical examination” in the equivalent Northern Ireland legislation implied a formal process in which the person being examined was required “to submit his body, or more likely, some part of it, to investigation”.  That decision was followed in R(DLA) 5/03, where the Commissioner said –

“12.	Nor does it involve an examination to ask a claimant with a visual impairment, ‘What can you see when you look at the panel members?’, an example used by the claimant’s representative.  There is no difference between this and any other question.  It is merely asking the claimant to give oral evidence in a way that will allow the answer to be most informative to the tribunal.”

Thus, although taking a history is an important tool in diagnosis, it is not part of a physical examination and so a claimant is not prohibited from giving oral evidence about his or her condition.  Similarly, in my judgment, while studying an X-ray may also be useful in diagnosis, it is not part of a physical examination and so a claimant is not prohibited from producing such evidence to a tribunal.

10.	That is not to say that a tribunal is bound to consider such evidence.  In this case, both members of the tribunal have referred to the medically qualified panel member’s lack of expertise in analysing X-rays.  If a tribunal is presented with X-rays that it cannot analyse, there must arise the question whether it should adjourn the proceedings so as to enable the parties to obtain a report from the relevant expert from among those treating the claimant.  A failure to adjourn where a claimant has brought evidence that he not unreasonably thought the tribunal would be able to understand may amount to a breach of the rules of natural justice because the claimant is effectively being denied the opportunity to put his or her case properly.  Deciding whether or not to adjourn will involve consideration of the relevance of the X-rays and the likelihood of them being helpful in relation to a live issue in the case.  Where a person complains of back pain, it is usually accepted that he or she suffers from some such pain.  The question are usually: how much and how disabling is it?  If an X-ray is unlikely to give much indication as to how disabling the condition is, except in the most serious cases, there may well be little to gain from adjourning, and a tribunal may properly refuse to do so.  However, if asked for a statement of reasons, it should explain what its approach was.  Whenever a tribunal declines to consider evidence, that should ideally be recorded in the record of proceedings, together with a note of the reason that will usually have been given orally to the parties.  Whether or not that is done, a reference to the refusal to consider the evidence is usually to be expected in the statement of reasons particularly where, as in this case, the claimant’s application for a statement of reasons specifically stated that he wanted to know why his X-rays were not looked at.

11.	In the present case, there can really be no doubt that the tribunal declined to look at the X-ray evidence produced by the claimant.  It seems likely that it did so in the mistaken belief that section 20(3) or some other provision prohibited it from looking at that evidence.  That would have been an error of law.  If it did so because the medically qualified panel member did not feel qualified to express a view on the significance of the X-rays, it either erred in law in failing to consider adjourning so that an expert’s opinion could be obtained or its decision is erroneous in point of law because the chairman failed to explain why it did not adjourn and a good reason cannot be inferred.  For these reasons, I allow the claimant’s appeal.  It is unnecessary for me to consider the claimant’s other grounds of appeal, which appear to be concerned more with points of fact than with points of law.

12.	The claimant’s case is not particularly strong on the papers, but I do not consider that I can fairly deal with it without an oral hearing and I therefore refer the case to another tribunal, which will have a medically qualified panel member among its members.  In the meantime, the claimant will be able to ask his own doctors whether there is any report in his medical records explaining the significance of the X-rays or that might otherwise help his case and, if there is not, he can consider getting such a report or some other medical evidence.  The Secretary of State will be able to make enquiries as to what other assessments of the claimant’s capacity for work were carried out between 1997 and 2004.

	(signed on the original)	MARK ROWLAND
		Commissioner
		31 May 2006