Edward John Saker v The Secretary of State for Social Services
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LLOYD,LORD JUSTICE NICHOLLS,LORD JUSTICE STAUGHTON |
| Judgment Date | 15 January 1988 |
| Judgment citation (vLex) | [1988] EWCA Civ J0115-3 |
| Docket Number | 88/0026 |
| Court | Court of Appeal (Civil Division) |
| Date | 15 January 1988 |
[1988] EWCA Civ J0115-3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SOCIAL SECURITY COMMISSIONER
Royal Courts of Justice.
Lord Justice Lloyd
Lord Justice Nicholls
and
Lord Justice Staughton
88/0026
MR. ROBIN ALLEN (instructed by the Battersea and Wandsworth Law Centre Ltd.) appeared on behalf of the Appellant.
MR. DUNCAN OUSELEY (instructed by the Solicitor, Department of Health and Social Security) appeared on behalf of the Appellant.
On the 17th March the appellant, Edward Saker, then aged 28, suffered an injury at work. He was employed by a catering hire firm. He tripped over a box of cutlery which was lying on the floor and, in falling, fractured the head of the radius of his right arm. On the 1st October, 1980 he was examined by a medical board. By a report dated the 4th February, 1981, the medical board assessed the appellant's disability due to the injury at 3 per cent for life. The board regarded certain other injuries and abnormalities (to which I shall have to refer later) as being unconnected with the accident. On the 11th September, 1981 the claimant applied for review of that decision to a medical review board. It is convenient at this stage to read section 110 of the Social Security Act 1975 which governs the review of medical decisions. As originally enacted, subsection (1) reads:
"Any decision under this Part of this Act of a medical board or a medical appeal tribunal may be reviewed at any time by a medical board if satisfied by fresh evidence that the decision was given in consequence of the non-disclosure or misrepresentation by the claimant or any other person of a material fact (whether the nondisclosure or misrepresentation was or was not fraudulent)."
As subsequently amended, the section now reads:
"Any decision under this Part of this Act of an adjudicating medical practitioner or a medical appeal tribunal may be reviewed at any time by an adjudicating medical practitioner if satisfied by fresh evidence that the decision was given in ignorance of a material fact or was based on a mistake as to a material fact."
On the 16th November, 1981 the claimant's application was dismissed by the review board on the ground that the claimant had not put forward any new material facts since his examination by the medical board in October 1980. On the 5th June, 1983 the claimant gave notice of appeal to the medical appeal tribunal. The Secretary of State's initial response was that the review board's decision that there were no grounds for review was correct (see page 48 of the bundle). But the Secretary of State subsequently changed his stance. In further observations, which appear at page 81 of the bundle, he invited the tribunal to decide that there was fresh evidence enabling the decision of the 1st October, 1980 to be reviewed and to decide afresh whether there was a loss of faculty resulting from the relevant accident and, if so, what disabilities were to be taken into account and to what extent and for what period. At the hearing before the medical appeal tribunal the Secretary of State's representative, Mr. Joseph, took the same line (see page 88 of the bundle). Not surprisingly, therefore, since it was common ground before the medical appeal tribunal, the tribunal decided that it was entitled to review the case.
But, having arrived at that decision, the medical appeal tribunal went on to reach the same conclusion as the medical board on the facts. In other words, the medical appeal tribunal, having reviewed the fresh evidence, concluded,as had the medical board,that the disability due to the accident was 3 per cent for life and that all other disabilities were unconnected.
One would perhaps have thought that the matter might have been allowed to rest there. But on the 23rd May, 1985 the claimant applied for leave to appeal to the social security commissioner against the second part of the medical appeal tribunal's decision. The first part of the decision was, of course, in the claimant's favour. The Secretary of State's response was to change tack once again. By a cross-appeal (if that is the right term) dated the 19th November, 1985 the Secretary of State appealed against the first part of the medical appeal tribunal's decision. The Secretary of State submitted, contrary to the submission which he had put before the medical appeal tribunal, that there was no fresh evidence to justify a review under section 110, and accordingly the medical appeal tribunal had no power to interfere with the decision of the medical board. The commissioner upheld that submission. There is now an appeal by the claimant to this court by leave of Lord Justice Glidewell.
The claimant's case on the facts is that he is suffering from two further conditions, one called cervical spondylosis and the other a lesion of his right ulnar nerve, both of which were caused or, at any rate, exacerbated by the accident. He contended before the review board that the medical board had been unaware of the existence of those conditions. Accordingly, he argued, the medical board reached its decision in ignorance of a material fact within the meaning of section 110 of the Act. That contention was, as I have said, rejected by the review board. But it was accepted by the medical appeal tribunal. I should now read the reasons which they gave for their decision:
"We are satisfied that if the Medical Board of 1.10.80 had had before it the evidence that the claimant definitely suffered from cervical spondylosis and nerve injury to his right arm as set out in documents 9, 10 and 11 it may have affected its decision. We find that these facts are material fresh evidence and we review the case on those grounds."
The documents to which the medical appeal tribunal refer are a letter dated the 2 7th June, 1981 from the claimant's general practitioner, in which he says:
"From my records it would appear that at the time of the last medical examination, my patient had evidence of cervical spondylosis and had worn a collar on and off since then."
The other document to which the medical appeal tribunal refer is a report signed on behalf of the divisional medical officer by Dr. Parker on 30th July 1981, in which Dr. Parker states that he has examined the claimant, and under the heading "General Description" gives the words "cervical spondylosis, nerve injury in right arm, depression problems."
It will be noticed that both those documents came into existence between the claimant's appearance before the medical board in October 1980 and his appearance before the medical review board in November 1981. So the medical appeal tribunal took the view that the conditions set out in section 110 of the Act had been satisfied by reason of that fresh evidence.
The commissioner took a different view. He said in paragraph 5 of his reasons:
"There were no grounds for reviewing the earlier decision of 1 October 1980. The medical board of that date were fully aware of the claimant's condition. Moreover, further confirmation of this is contained in paragraph 2 of the consultant neurologist's report of 5 December 1980 from St. George's Hospital where there are express findings by Dr. Gordon, a Senior Registrar to the Department of Neurology, of 'Cervical Spondylosis with root compression' and 'previous history of right ulnar nerve transposition'. It follows that there were no grounds for review under section 110 (1) of the Social Security Act 1975, and accordingly I must set aside the tribunal's decision as being erroneous in point of law."
I have some sympathy with the commissioner's view. The guestion for the medical appeal tribunal was whether there was fresh evidence that the medical board had acted in ignorance of a material fact. How, it may be asked, could it be said that the medical board had acted in ignorance of a material fact when they had before them the letter dated the 5th December, 1980 from Dr. Pauline Monro, the consultant neurologist at St. George's Hospital, which refers specifically to the two conditions which the claimant says were caused or exacerbated by the accident? I read the relevant paragraph from Dr. Monro's letter:
"According to Dr. Gordon's notes he found Mr. Saker to be poly-symptomatic and therefore found difficulty in establishing an accurate diagnosis but he felt that the most likely explanation of Mr. Saker's problems was cervical spondylosis with root compression. Dr. Gordon reports that Mr. Saker dated all his symptoms since the accident on the 17th March 1980 when he tripped and fell, and at which time he fractured the head of the right radius and from that time had experienced pain in the forearm such that he had difficulty in holding a pen to write. Mr. Saker also complained of some episodes of 'electric shock like pain' radiating down the right arm and subsequently numbness in the thumb, index and middle fingers of the right hand with more spread to the left hand. Dr. Gordon noticed that there was a previous history of right ulnar nerve transposition in 1975 and that the patient had suffered from gout since the age of 28."
Moreover, in addition to that letter, it seems at least highly probable that the medical board had in front of it a further document which was handed up in the course of the hearing before us and which would have formed part of the cover of the relevant file. That document again refers specifically to cervical spondylosis and right ulnar nerve lesion as the certified cause of incapacity since the 18th July, 1980.
For those reasons I can well understand why the...
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