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DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. My decision is given under section 14(8)(b) of the Social Security Act 1998. It is:
I SET ASIDE the decision of the Swansea appeal tribunal, held on 29 October 2003 under reference U/03/204/2003/01644, because it is erroneous in point of law.
I REMIT the case to a differently constituted appeal tribunal and DIRECT as follows.
The appeal tribunal must conduct a complete rehearing of the issues that are raised by the appeal and, subject to the tribunal’s discretion under section 12(8)(a) of the 1998 Act, any other issues that merit consideration.
The appeal tribunal must investigate and determine the claimant’s entitlement to a disability living allowance on her 'renewal' claim for an allowance that was made on 15 January 2003.
The appeal tribunal must not take account of circumstances that were not obtaining at the time of the decision under appeal, which was made on 17 April 2003: see section 12(8)(b) of the Social Security Act 1998, as interpreted by the Tribunal of Commissioners in CDLA/2751/2003 and related decisions. Later evidence is admissible, provided that it relates to the time of the decision: R(DLA) 2 and 3/01.
The claimant has criticised the reports of the examining medical practitioners. The tribunal must consider the claimant’s criticisms. It must make clear whether or not it accepts them and why.
I refer the appeal tribunal to the guidance I give in this decision on the assessment of the significance of the claimant’s pain.
The appeal to the Commissioner
2. This is an appeal by a claimant, brought with my leave. The Secretary of State supports the appeal.
History and background
The 'renewal' claim
3. On 15 January 2003, the claimant submitted a 'renewal' claim for a disability living allowance. At that time, she had an award consisting of the mobility component at the higher rate and care component at the highest rate. That award was due to end on 28 June 2003. Before deciding the 'renewal' claim, the Secretary of State obtained two reports from different examining medical practitioners. The reason for the second report was that the first report was temporarily mislaid. Both reports were available at the time of the appeal and were admissible in evidence.
4. In her claim pack, the claimant attributed her difficulties to chronic back pain, depression and carpal tunnel syndrome. She submitted a letter from her Consultant Rheumatologist which referred to her chronic pain.
5. Neither examining medical practitioner confirmed depression. They both confirmed back pain and, with a query by the first examining medical practitioner, carpal tunnel syndrome. They both diagnosed irritable bowel syndrome. As to impairment, the first examining medical practitioner found full function in all the claimant’s limbs, while the second found only a slight impairment of her right upper limb. As to disability, the examining medical practitioners were again broadly agreed. The first examining medical practitioner gave the opinion that the claimant could walk 300 metres slowly before experiencing severe discomfort, with a pause at 150 metres on account of pain in her back. The other examining medical practitioner gave the opinion that the claimant could walk 50 metres very slowly before experiencing severe discomfort and would then have to stop on account of her painful back. The first examining medical practitioner gave the opinion that the claimant had no disability in respect of care, while the second considered that the claimant would have problems with bathing and using a wheelchair on account of pain. It is, therefore, clear from the terms of their reports that both examining medical practitioners took account of pain in making their assessments.
The Secretary of State’s decision
6. The decision-maker refused the 'renewal' claim from and including 29 June 2003, the effective date of the renewal.
The appeal to the tribunal
7. The claimant exercised her right of appeal to an appeal tribunal. She submitted a letter from the Chronic Pain Management Service, which contained a description of the claimant’s pain and how it affected her life. She also criticised the Secretary of State’s medical evidence. She accused the examining medical practitioners of not recording everything she said and of not carrying out examinations. Implicitly, she accused them of inventing the clinical findings that they had recorded.
8. The tribunal dismissed her appeal.
9. The crucial issue in this case is the claimant’s pain and the effect that it has on her activities. That is clear from her descriptions of her difficulties. It is supported by her medical evidence from the Consultant and from the Pain Management Service. It is also clear from the references to it in the examining medical practitioners’ reports.
10. The tribunal went wrong in law by failing to deal in sufficient detail with the claimant’s pain. I do not say that it ignored the pain – it took account of the examining medical practitioners’ reports which referred to it. But I do say that the tribunal did not analyse that aspect of the case sufficiently. As I commented in granting leave, this is something that tribunals often do. For that reason, I hope that the following guidance may be helpful to the tribunal that rehears this case and provide a framework for use by other tribunals. It may also help claimants and their representatives to prepare cases for a tribunal.
11. Pain is probably one of the most difficult issue that tribunals have to deal with. And it is also probably the most common. It surely arises in every session of disability living allowance and capacity for work appeals.
12. It always arises as a factual issue:
• what pain does the claimant experience?
• how does it affect the claimant’s activities?
And it may arise as a legal issue in the interpretation of the legislation:
• is the pain part of the claimant’s physical condition or disablement for the purposes of the higher rate of the mobility component of disability living allowance?
• does it arise from a specific bodily disease or disablement for the purposes of the personal capability assessment?
13. It is always relevant in disability living allowance to consider the nature of the pain experienced by the claimant, because it will be relevant to the extent to which the claimant’s activities are restricted. In the particular case of the mobility component at the higher rate, the nature of the pain will be more directly relevant, because it has to be assessed against the statutory language of severe discomfort.
14. Medical experts on pain no longer believe that there is a direct and proportionate relationship between (a) a disease or injury and (b) the nature and level of pain that a person experiences. This is reflected in the definition of pain by the International Association for the Study of Pain:
‘An unpleasant sensory and emotional experience associated with actual or potential tissue damage, or described in terms of such damage.’
15. Now that those medical professionals who are expert in pain do not recognise a direct link between clinical findings and pain, it is no longer rational for tribunals to reason simply from the clinical findings on examination to the level of pain that a claimant experiences. Tribunals must investigate the evidence of the claimant’s pain and explain how they have dealt with it. As there is no direct causal link between disease or injury and pain, the only direct evidence of pain can come from the claimant. This raises potential difficulties.
16. An immediate problem, for both claimants and tribunals, is that of language. There is a large vocabulary of pain. The McGill pain questionnaire contains a detailed analysis of that vocabulary. It divides the aspects of the language of pain into three:
• sensory, which describes the sensation itself – e.g. shooting or stabbing;
• affective, which describes the effect of the pain on the patient – e.g. sickening or blinding;
• evaluative, which describes the extent to which the patient is suffering – e.g. distressing or unbearable.
It then provides 66 different words to describe those three aspects of the experience of pain. The words assigned to each aspect of pain are then subdivided into categories, each of which can be scaled for intensity.
17. However, claimants may not have that full range of words in their useable vocabulary. Nor may they have the imagination or command of language to deploy to its best effect the vocabulary that they do use. In order to convey accurately to a tribunal the pain that they experience, most claimants will need help from a representative or the tribunal. That help must come in the form of questioning that is designed to enable the claimants to give the fullest and best account possible of their pain.
18. When the evidence has been obtained, it has to be evaluated and interpreted. This can be more difficult than obtaining the evidence. A claimant may say something like: ‘Every step I take is agony.’ Tribunals often reject such evidence as incredible or as inconsistent with the fact that the claimant does not use painkillers or has not been referred to a specialist or a pain clinic. This approach takes the evidence at face value. A better approach is to try to get beyond the language used to what that language conveys. This may reveal evidence that is both credible and reliable. Take the example I have just given. ‘Agony’ may be used comparatively with the claimant’s experience of pain. It may convey that the pain is beyond the claimant’s previous experience of pain in its intensity, its nature, its duration or its effect in restricting activity. It is possible that the language will also convey, and contain, the claimant’s reaction to the pain and to the resulting disablement.
19. This does not mean that the tribunal has to accept the claimant’s evidence. Even when analysed as I have suggested, it may still be unreliable or incredible. It may even be dishonest. What I am saying is this. If pain is an issue, the tribunal must obtain the best evidence that it can of that pain and its effect on the claimant, and it must then interpret that evidence realistically. Only then, is the tribunal in a position to decide whether or not to accept it.
20. In deciding whether to accept the claimant’s evidence of pain, the tribunal must consider the whole of the evidence relevant to the claimant’s disablement. This is likely to include the following.
Evidence of the activities undertaken by the claimant
21. This evidence may come from the claimant. The nature or the amount of the claimant’s activities may or may not be consistent with the pain reported. And it may be possible to draw inferences as to functional capacity from the activities that the claimant admits to undertaking. The claimant may, for example, admit to doing gardening. If that involves bending, it may be permissible to infer that the claimant is able to perform any bending necessary for dressing.
22. It is not unusual for claimants to admit to activities that are inconsistent with the language they use to describe their pain. This may reflect the point I have already made that a description of pain may say as much about how the claimant feels about the pain as it says about how the pain feels.
23. An examining medical practitioner’s clinical findings may also be relevant. If those findings show that the claimant has no muscle wasting and normal muscle bulk, tone and power, that will indicate that the claimant is undertaking sufficient activity to maintain the muscles. The issue for the tribunal will be whether that amount of activity is consistent with the pain that the claimant alleges.
The claimant’s medication
24. The nature and dosage of medication may be an indicator of a claimant’s pain. If the medication is not consistent with the level of pain described by the claimant, the tribunal must investigate as far as it can. There may be a credible explanation for an apparent discrepancy. It is not unknown for claimants to dislike taking medication for a prolonged period. And some pains respond better to medication than others. On the other hand, it is also not unknown for GPs to over-prescribe.
Other treatment or referrals, actual and considered
25. This may indicate how the claimant has presented to the GP and how the GP has assessed the claimant’s condition. However, a particular course may have been considered and rejected for sensible reasons. Or it may not be appropriate. Or it may not be readily available in the area. The tribunal should investigate these matters in so far as it can. Usually, it will only be sensible to ask the claimant. A detailed questionnaire to a GP on the claimant’s treatment will seldom, if ever, be appropriate.
Informal observations of the claimant’s functional ability and activities
26. These can be telling. They are most likely to have been made and recorded by an examining medical practitioner. The tribunal may also make observations and take them into account. However, this is only permissible if they can be related to the time of the decision under appeal.
27. The significance of an observation will depend on what the claimant has said. Suppose a claimant says: ‘I cannot lift my arm above my shoulder.’ If the claimant then does precisely that, the action is inconsistent with the evidence previously given. Suppose next that a claimant says: ‘I have difficulty lifting my arm above my shoulder.’ If the claimant then does that, the action may be inconsistent with the evidence previously given. But without more information it is not possible to be sure that it is. It may be that on enquiry the shoulder gets stiff overnight and eases as the day progresses. Or the claimant’s medication make ease the stiffness. Potential inconsistencies need to be investigated.
Opinions of examining medical practitioners
28. The report of an examining medical practitioner will often be the best medical evidence available to the tribunal. The value of these reports lies in the fact that the evidence is transparent. By that, I mean that the report sets out the doctor’s conclusions on function and opinions on disablement together with the evidence on which they are based. That makes it possible for the tribunal to assess those conclusions and opinions. This is in contrast to what I call opaque evidence. This is evidence that merely states a conclusion or opinion without giving the reasons for it. This prevents a tribunal from making an assessment of the internal cogency of the evidence.
29. We know from the decision of Mr Commissioner Williams in CDLA/0611/2003, paragraph 13 that examining medical practitioners are trained to take account of pain. Unfortunately, their reports are not always transparent on pain. Some reports expressly refer to pain, as both did in this case. Other reports do not refer to pain, but show that pain must have been considered. For example, an examining medical practitioner may find nothing abnormal on examination and conclude that the claimant has full limb function, but give the opinion that the claimant’s mobility is limited. That opinion can only be accounted for by the pain that the claimant referred to in the statement to the doctor. Yet other reports make no mention of pain and leave unclear whether the doctor accepts that the claimant experiences pain as alleged.
30. In this case, both examining medical practitioners took account of pain, but came to different opinions on its effects. One approach to their evidence would be that, on either report, the claimant was not entitled to a disability living allowance. A better analysis takes account of the evidence as a whole, including the claimant’s evidence of her pain. On this basis, both doctors supported her in taking account of pain to some extent. Neither may have come to opinions that supported an award of disability living allowance. But given their divergent opinions and the difficulties of assessing pain, the tribunal had to investigate and form its own opinion.
Oral hearings and paper hearings
31. The advice I have given on the assessment of the effects of pain relates to oral hearings at which the claimant is present. If the claimant is not present at the hearing, for example because it is a paper hearing, the tribunal obviously cannot question the claimant. It must, though, consider whether it is appropriate to adjourn to allow the claimant to attend. If it is not, the tribunal can only do the best that it can on the evidence before it.
32. I allow the appeal. A further enquiry into the facts of the case is needed. The appeal tribunal is appropriately constituted to undertake that enquiry and to assess the evidence obtained. I have, therefore, directed a rehearing.
Signed on original
on 18 June 2004 Edward Jacobs