Simon Osborne highlights recent decisions of the Upper Tribunal on the weighing of medical evidence which show that old problems have not gone away, while others reflect more recent trends.
Introduction
Tribunals are frequently faced with the task of weighing medical evidence, most commonly in appeals about incapacity for work or limited capability for work and the disability conditions for disability living allowance (DLA). The tendency of some tribunals to take an uncritical approach to medical evidence from the Department for Work and Pensions (DWP) has long been problematic for claimants and their representatives. More recently, some representatives have been reporting a correspondingly increased sceptical approach to medical evidence produced for the claimant. Both of these tendencies have been discussed in recent decisions of the Upper Tribunal.
DWP medical evidence
The problem here is that some appeal tribunals (i.e., what are now First-tier Tribunals) have continued to favour medical evidence from the Department simply because it is evidence from DWP medical services, without properly considering its individual merits or weighing it against other evidence. More recently this problem has tended to recur in a slightly different form, that of a tribunal ostensibly weighing the medical evidence, but in fact giving merely 'formulaic' reasons for its preference for the Departmental evidence.
That this approach is still wrong, was confirmed in a recent decision of Judge Wikeley, AG v Secretary of State for Work and Pensions [2009] UKUT 127 (AAC) (see also p. 15 of this Bulletin). In dismissing the claimant's appeal, the tribunal made findings about the claimant's credibility which the judge did not criticise. However, he did criticise the tribunal's reasons for preferring the medical report of the DWP medical services. The tribunal stated:
The Tribunal preferred instead the evidence of Dr Gil. It is expert carried out by someone trained in the personal Capability Assessment and is based upon questions asked of [the appellant] and upon a clinical examination.
The judge considered that reasoning to be flawed, as it was, 'the sort of "formulaic endorsement of the examining medical practitioner's report" that the former Social Security Commissioners regularly warned against…'. In that context, the judge cited with approval the decision in CIB/3074/2003 (for which see below). The error was compounded by the fact that the tribunal had completely ignored the complaints of the claimant and his representative, to the effect that the DWP medical report had in fact been altered and signed by a doctor other than the one that actually carried out the examination. The principal point, however, was that the tribunal's reasons for adopting the DWP medical report were inadequate.
As he indicated, Judge Wikeley was in fact applying a criticism that had been made in previous case law. In particular (and as cited by the judge), in CIB/3074/2003, Commissioner Bano had dealt with very similar reasoning and had similar criticisms. In that case the tribunal had said:
It was the view of the tribunal that the examining doctor had carried out a full and thorough examination . . . the Tribunal preferred this report because it is a detailed report which based on discussion with, observation of and clinical examination of the Appellant and which focuses on the descriptors for Incapacity Benefit. It had taken into account the difficulties described by the Appellant in his letter of appeal.
This was a, 'formulaic endorsement' of the medical report, and so inadequate reasoning. Parliament had not provided that the findings of an official medical were to be conclusive, and on the contrary had provided the right of appeal against such findings. 'In incapacity benefit and disability living allowance cases,' said the commissioner, 'an appeal against a decision maker's decision will often in effect be a challenge by the claimant to the examining medical officer's evidence, and in such a case it is inconsistent with the impartiality of the tribunal for it to approach the case on the basis that the evidence of the examining medical practitioner is generally to be preferred to that of other evidence.' As had been made clear in R(DLA) 3/99 (for which see below), the task of the tribunal in assessing evidence was to determine what they accept and what they reject, and was not to accept one sort of evidence on the basis that it must normally prevail over other evidence. In a comment on similar wording used by a tribunal in CDLA/4127/2003 (Bulletin 182, p. 15), Commissioner Williams said that it might almost be called an, 'incantation'.
Indeed, this line of thinking goes back at least as far as R(DLA) 3/99. There, Commissioner May dismissed a suggestion that there was some authority for holding that DWP medical evidence must necessarily prevail over that for the claimant. That would, 'fly in the face of the obligation of a tribunal to consider the whole evidence in a case and in these circumstances they cannot accept one body of evidence upon a basis that it must normally prevail over other evidence in the case.' The commissioner did say that it, 'may well be' that there may be reasons why in the majority of cases the DWP medical evidence would prevail - but it could not be that that was automatically the case. It may be these comments that led some tribunals to abandon merely adopting the DWP evidence as self-evidently to be preferred, but instead to give only 'formulaic' reasons for doing so. In any case it is now clearer than ever that such reasoning remains inadequate, and that there is no substitute for the proper weighing of all evidence on its own merits.
Evidence in the balance
Arguably, and contrary to the implication of R(DLA) 3/99, there may very well often be good reason for holding that the DWP medical evidence should not be preferred. For example, in both AG v Secretary of State for Work and Pensions and CDLA/4127/2003, the DWP medical report had been altered by a doctor who had not in fact examined the claimant, whereas in CDLA/2466/2007 (Bulletin 202, pp. 8 and 14), additional DWP evidence had been supplied by such a doctor without any presentation of her/his professional expertise. In CIB/511/2005, attention was drawn to discrepancies and errors official in computerised DWP medical reports, and the necessity of tribunals satisfying themselves that such reports really represent the clinical findings and opinions of the examining doctor. And of course there is the well established point, made in R(M) 1/93, that although a 'terse' medical certificate may carry little weight, 'the tribunal may prefer the evidence of a general practitioner who has treated the claimant over many years, in others it may prefer the opinion of a specialist who is skilled in the condition from which the claimant suffers'.
Medical evidence for the claimant
Many representatives seek, as a matter of standard practice, medical evidence in support of their clients. CPAG has received a number of reports from representatives that some tribunals are taking an increasingly sceptical approach to such evidence (see Bulletin 202, pp. 8-9). A recent decision of Judge Jacobs, DC v Secretary of State for Work and Pensions [2009] 45 UKUT (AAC) (formerly known as CDLA/3519/2008 - Bulletin 211, p. 15) provides some comment on certain aspects of such approaches. In this case, the claimant's representative had obtained reports from a physiotherapist and a consultant surgeon, using forms with specific questions about mobility and self-care, with tick boxes for 'yes' and 'no', and asking for reasons for the answers. It is worth noting that the judge had no adverse comments regarding the value of the representative's forms as ways of getting the evidence. That may well be because the representative had been careful to get the opinions in the tick boxes buttressed by reasons for them, so avoiding the problems of evidence in the form of opinions and tick boxes only mentioned in CDLA/2961/2004 and CDLA/1572/2005 - see Bulletin 202, p. 9.) The tribunal criticised the representative's forms by saying that, 'the representative had wrongly set out the cooked meal test in the questionnaire.' But Judge Jacobs said (at paragraph 14 of the decision):
The tribunal took apart the representative's question on this test with the precision of a judge of the Upper Tribunal analysing a tribunal's decision. That was inappropriate. What the representative did was to set out a question to be answered. He was not writing a textbook on the scope of the test. The tribunal was entitled to take account of the question in assessing the answer. But it had to do that consistently. The examining medical practitioner's report contained a question about the use of a traditional cooker, but the tribunal did not mention that. What the representative has done is to consolidate the questions on cooking asked by examining medical practitioners into a single question. That ensures that the evidence from the Secretary of State and the claimant are at least in response to the same questions.
The judge went on to hold that, 'medical questionnaires cannot in practice be worded in the precise terms of the legislation and case law.' It was the tribunal's job to analyse the answers and apply the law to that, including considering if there was relevant information that was not given because of the wording of the question. Also, the tribunal had held that the reports submitted by the claimant were 'irreconcilably different' and that the representative could not 'pick and chose [sic]' bits of different reports without very good reason. The judge looked at the matter differently and held that it is permissible for a tribunal [and, by extension, a representative] to rely on a particular witness's evidence in part only, as long as there was sufficient reason to do so.
One-sided approach
Though not specifically commented on in DC v Secretary of State for Work and Pensions, it would seem at least possible that the tribunal there took a more critical approach to the medical evidence produced for the claimant than it did to the DWP medical report. That certainly was the case in CDLA/4127/2003, which is very clear authority (should any be needed) that such a one sided approach is wrong. There, Commissioner Williams held that the tribunal had failed to ask questions, even rhetorically, of anyone other than the claimant. It commented on faults in the report produced for the claimant by his GP, but not on faults in the DWP medical report, and dismissed the GP report without weighing it at all. In summary, held the commissioner, the tribunal, 'used its inquisitorial power selectively and in an unbalanced way to the detriment of the claimant'. That was, of course, unlawful.
Conclusion
Evidently, the old problem of tribunals automatically preferring DWP medical evidence without giving proper reasons for doing so persists. Dressing up an uncritical acceptance of such evidence with formulaic reasons ('the tribunal adopted the report of the Department because it is expert, unbiased . . . ' etc.) does not legitimise this approach. Hopefully, the decision of the Upper Tribunal in AG v Secretary of State for Work and Pensions will act as a timely and effective reminder; but the problem is proving stubborn to eliminate.
Tribunals can of course reject medical evidence submitted for the claimant (even where the Department's evidence has also been questioned), but in any case they must have sufficient reasons for doing so. Criticising a representative's letter seeking evidence on the basis that it does not fully reflect the law is not valid, and neither is subjecting the claimant's evidence to critical scrutiny without doing the same to the DWP's evidence. The decision of the Upper Tribunal in DC v Secretary of State for Work and Pensions, taken together with, for example, the earlier one of the commissioner in CDLA/4127/2003, should provide sufficient authority to challenge such approaches to weighing medical evidence.
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