Evans and Kitchen v. Secretary of State for Social Security CI 215 1989
| Jurisdiction | UK Non-devolved |
| Judge | N/A |
| Judgment Date | 30 July 1993 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Subject Matter | Tribunal procedure and practice (including UT) |
| Docket Number | CI 215 1989 |
| Appellant | Evans and Kitchen v. Secretary of State for Social Security |
R(I) 5/94
(Evans and Others v. Secretary of State for Social Security)
CA (Neill, Nolan and Evans LJJ) CI/215/1989
30.7.93 CI/58/1989 CM/240/1990 CM/44/1991
Tribunal practice - reasons for decision - whether medical appeal tribunal obliged to explain rejection of views of other medical experts
E claimed disablement benefit on the ground that she was suffering from prescribed disease A8. Her claim was refused and a medical appeal tribunal found that she was not suffering from the disease, despite there being medical opinions before them to the opposite effect. K claimed disablement benefit in 1986 on the ground that he was suffering disablement arising from an industrial accident in 1961. His claim failed and a medical appeal tribunal found that his “present clinical findings are not attributable to the relevant accident” despite there being a report before them suggesting “probably major part of present disability relates to episode in 1961”. M and B were both refused mobility allowance on repeat claims made before earlier awards came to an end. At some time after the previous awards had expired, their appeals to medical appeal tribunals were unsuccessful. In all four cases, the Commissioners dismissed appeals, holding that the tribunals had given adequate reasons for their decisions as required by regulation 31(4) of the Social Security (Adjudication) Regulations 1986. The claimants appealed
Held, allowing all the appeals, that
1. where an appellate court has to consider whether the decision of a medical appeal tribunal is a lawful decision under regulation 31 (4), bearing in mind the underlying principle that fairness to the claimant “requires a tribunal …. to give sufficient reasons for its decision to enable the parties to know the issues to which it addressed its mind and that it acted lawfully” (Regina v. Civil Service Appeal Board, ex parte Cunningham [1992] ICR 816 at 827), it should approach the matter on the following lines
(i) the decision should record the medical question or questions which the tribunal is required to answer;
(ii) where the tribunal has medically examined the claimant they should record their findings;
(iii) where, however, the clinical findings do not point to some obvious diagnosis it may be necessary to give a short explanation as to why they have made one diagnosis rather than another, particularly where their diagnosis differs from a reasoned diagnosis of another qualified practitioner who has examined the claimant;
(iv) as regards causation, in some cases it may be sufficient for the tribunal to record that it was not satisfied that the present condition was caused by the relevant trauma; but where a claimant has previously been in receipt of some benefit or allowance (particularly if paid over a long period of time) and there is no question of malingering or bad faith then an explanation should be given that allows him or his advisors to know where the break in causation has been found;
2. in the cases of M and B, the decisions would have been unassailable had the tribunal set out and answered the various questions which the Mobility Allowance Regulations 1975 required them to address e.g. the dates to which the findings were related;
3. in the case of E, fairness pointed, in light of the fact that the tribunal disagreed with the claimant’s consultant, to the need for an adjournment so that the tribunal’s provisional view could be brought to the attention of the claimant’s own advisors; and
4. in the case of K, the tribunal should, in light of the report before them, have explained their decision in more detail than they did.
The Court of Appeal remitted the four cases to medical appeal tribunals.
decision of the court of appeal
Mr J. Baker (instructed by Messrs. Raleys, South Yorkshire) appeared on behalf of the Appellant Evans.
Mr. S. Bedau (instructed by Messrs. Atherton and Godfrey, Doncaster) appeared on behalf of the Appellant Kitchen.
Mr. R. Allfrey (instructed by Birmingham Tribunal Unit, Birmingham) appeared on behalf of the Appellant Begum.
Mr. R. Allfrey (instructed by Wythenshawe Law Centre, Manchester) appeared on behalf of the Appellant Moran.
Mr. R. Jay (instructed by the Solicitor to the Department of Social Security) appeared on behalf of the Respondent.
NEILL LJ: In these four appeals we are concerned with the entitlement to payment of benefits which were payable under the Social (Security Act 1975 (as amended) (the 1975 Act). The 1975 Act has now been repealed and replaced by The Social Security Contributions and Benefits Act 1992 and The Social Security Administration Act 1992. The regulation to which these appeals are directed, however, remains in force and the court is asked to give some general guidance as to its proper construction and application.
Under the 1975 Act a claimant for some of the benefits payable under the Act was required to satisfy certain medical criteria. In such cases the medical aspect of the claim was referred in the first instance to a medical board and then, either by way of appeal or review, to a medical appeal tribunal. Regulations relating to the adjudications to be made by adjudicating medical authorities and medical appeal tribunals were contained in section D of Part III of the Social Security (Adjudication) Regulations 1986. We are concerned with regulation 31 of these regulations. This regulation provided that a medical appeal tribunal should hold an oral hearing of any appeal or reference made to it; regulation 31(4), with which we are particularly concerned, provided (as amended) as follows:
“A medical appeal tribunal shall in each case record their decision in writing and shall include in such record, which shall be signed by all members of the tribunal, a statement of the reasons for their decision, including their findings on all questions of fact material to the decision.”
It will be seen therefore that a decision of a medical tribunal has to comply with the following requirements:
(a) The decision is to be in writing.
(b) The record of the decision is to be signed by all members of the tribunal.
(c) The record of the decision is to include a statement of the reasons for the tribunal’s decision.
(d) The statement of the reasons is to include the tribunal’s findings on all questions of fact material to the decision.
It is common ground that the question whether a record of the decision of a medical appeal tribunal complies with regulation 31(4) is a question of law as to which an appeal lies to a social security Commissioner and thence with leave to this court. An important element in the present appeals is that two quite recent decisions of social security Commissioners have disclosed a difference of approach to the obligations of a medical appeal tribunal when recording their decision. Mr. Rice in his decision in West dated 2 May 1991 concluded that a medical appeal tribunal is under no obligation to explain why they have not accepted the views of other medical experts who have examined the claimant. Mr. Sanders on the other hand in his decision in Purcell dated 24 May 1991 concluded that the medical appeal tribunal’s decision was erroneous in law because they had failed to explain why in the face of the other medical evidence they had reached the conclusion that they had. It may be noted that in the present appeals counsel for the Secretary of State has adopted a middle position, contending that the medical appeal tribunal are under a duty to explain the reasons for their conclusion if the other medical experts have given reasons for their contrary conclusion, but that the obligation to explain does not extend to a case where the other experts have merely stated a conclusion without giving reasons for it.
With this introduction and before turning to the arguments relating to regulation 31(4), I must first set out the facts in the four appeals.
The Evans appeal.
Mrs. Evans, who was born in March 1948 and is now aged 45, was employed as a packer at a bakery in Barnsley between 23 September 1979 and 12 June 1981. This employment involved frequent and repetitive movements of the hands and wrists. On 12 January 1986 Mrs. Evans made a claim for industrial disablement benefit on the basis that she was suffering from a prescribed industrial disease, namely tenosynovitis. Mrs. Evans attributed her condition to the repetitive nature of the work which she had to perform at the bakery. Tenosynovitis or, more strictly traumatic tenosynovitis, is another term for the prescribed disease A8 which is listed in Schedule 1 to the Social Security (Industrial Injuries)...
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