14 June 2007
A District Chair has suggested that incapacity and DLA tribunals should obtain items such as a slotted spoon, a small pan and a 2.5kg bag of potatoes in order to require claimants to demonstrate their ability to carry out activities such as 'Ready, Steady, Cooking Test'.
The Chair, writing in the confidential Judicial Information Bulletin distributed to tribunal members and also currently available on the Tribunal Service's private intranet, also suggested that 'voyeurism is acceptable at tribunals'. Benefits and Work believes there may be occasions when this advice could be turned to a claimant's advantage.
The District Chair produced a round-up of statute and caselaw relating to the powers of tribunals to observe and examine claimants at oral hearings. The Chair explains that, apart from medical appeal tribunals considering industrial injuries, appeal panels are prevented from carrying out physical examinations of appellants by Section 20(3) of the Social Security Act 1998 and reg. 52 of the Decisions and Appeals Regulations 1999. Tribunals are also forbidden to carry out a walking test in relation to DLA higher rate mobility.
However, the Chair cites two decision R4/99(IB) and R(DLA)1/95 in support of the proposition that tribunals are entitled to make use of their own observations of a claimant, such as the apparent ease with which they sit and rise from sitting, when reaching a decision. The tribunal may sometimes, though not always, be under a duty to put their observations to the claimant and allow them to comment.
The Chair then goes on to explain that it may sometimes be permissible for a tribunal to look at parts of a claimant's body and use these observations to help them reach a decision. In R1/01(IB)(T) it was held that "If a claimant offers to remove some part of his clothing in order to show an injury, wasting, swelling or whatever, the tribunal is not prohibited from looking at whatever the claimant wishes to show it."
Finally, the Chair turns to CDLA/3967/2002 in which he explains that the Commissioner held that there is a difference between a physical examination and a physical test. A physical test is specifically prohibited by the legislation in connection with the higher rate mobility component of DLA, but not in connection with the care component or incapacity for work. This means that a tribunal could ask a claimant to demonstrate their difficulties with simple activities such as bending or doing up buttons.
This leads the Regional Chair to, amongst others, the following conclusions:
". . . the laying on of hands is to be discouraged although voyeurism is acceptable."
". . . it might be sensible for each tribunal venue to requisition such helpful items as a 2.5 kg bag of potatoes, an upright chair with no arms, a supply of vegetables, a small pan and a slotted spoon. I foresee 'Ready, Steady, Cooking Test' - it could be a hit!"
Whilst there was clearly an element of tongue-in-cheek about the Chair's final comments, the possibility that tribunals could require claimants to actually demonstrate their abilities is potentially a cause for concern.
Who's sorry now?
On the other hand, where claimants are confident that they can clearly demonstrate the difficulties they experience, perhaps it is advice agencies who should be laying in a stock of helpful items to take along to hearings. Benefits and Work would be delighted to hear from any members who manage to oblige a tribunal to sit through a demonstration of their dressing, washing or cooking abilities. Should the tribunal offer any resistance to the proposal, point out that it was first mooted by Robin Knipe, District Chair, North West Region.