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Neutral Citation Number:
Reported Number:	R(IB)2/06
File Number:	CIB 3108 2005
Appellant:
Respondent:
Judge/Commissioner:	Judge M. Rowland
Date Of Decision:	31/05/2006
Date Added:	14/06/2006
Main Category:	Tribunal procedure and practice (including UT)
Main Subcategory:	tribunal practice
Secondary Category:
Secondary Subcategory:
Notes:	Tribunal practice - X-ray evidence - whether included in prohibition of physical examination of a claimant The claimant lost his appeal against a decision of the Secretary of State that he was not entitled to incapacity benefit because he was not incapable of work. On appeal to the Commissioner, the claimant alleged that the medically qualified panel member sitting on the tribunal had refused to look at X-rays produced by the claimant at the hearing. There was no mention, either in the record of proceedings or the statement of reasons, of the claimant asking the tribunal to look at the X-rays or of the tribunal declining to do so. The Commissioner therefore directed the panel members, under regulation 20(2) of the Social Security Commissioners (Procedure) Regulations 1999, to state whether, and if so on what ground, the medically qualified panel member had refused to look at the X-rays. The legally qualified panel member accepted that the medically qualified panel member had declined to look at the X-rays. The medically qualified panel member was unable to remember the particular hearing but said that his understanding was that no clinical examination of the appellant should be undertaken and that looking at X-rays could be interpreted as such. In addition he had no special expertise in the interpretation of X-rays. The Secretary of State, supporting the appeal, submitted that this approach was wrong. Held, allowing the appeal, that: 1. studying an X-ray is not prohibited by section 20(3)(a) of the Social Security Act 1998 which prohibits physical examination “of the person” and not of the evidence in the person’s case; 2. a tribunal is not bound to consider X-rays if it lacks the expertise to analyse them but should consider whether to adjourn in the light of the relevance of the X-rays and the likelihood of their being helpful in relation to a live issue in the case and, if asked for a statement of reasons having refused to adjourn, should explain its approach; 3. if the tribunal declined to look at the X-ray evidence because it believed it was prohibited from doing so, it erred in law. If it declined because the medically qualified panel member did not feel qualified to express a view on the significance of the X-rays, either it erred in law in failing to consider adjourning so that an expert’s opinion could be obtained or its decision was erroneous in point of law because the chairman failed to explain the reason for not adjourning and a good reason could not be inferred. The Commissioner remitted the case to a differently constituted tribunal.
Decision(s) to Download:	R(IB) 2-06 bv.doc