Documente Academic
Documente Profesional
Documente Cultură
THE UPPER TRIBUNAL (ADMINISTRATIVE APPEALS CHAMBER) Upper Tribunal Case No. CIB/3117/2008
JUDGE WIKELEY
CIB/3117/2008
The DECISION of the Upper Tribunal is to allow the appeal by the appellant. The decision of the Cheltenham appeal tribunal dated 4 June 2008 under file reference 205/08/00178 involves an error on a point of law. The tribunals decision is set aside. The Upper Tribunal is able to re-make the decision under appeal. The decision that the tribunal should have made is as follows: The appeal by the appellant against the decision of the Secretary of State dated 19 November 2007 succeeds. It has not been established that the appellant failed to show good cause for failing to submit himself for a medical examination on 22 October 2007. The case is remitted back to the Secretary of State with the following directions: (i) The Secretary of State shall ask Medical Services to arrange for the appellant to be provided with details, in writing, of the conditions under which an interview or examination may be taperecorded; The Secretary of State shall ask Medical Services to offer the appellant a further appointment for a medical examination.
(ii)
If Medical Services and the appellant are unable to agree the terms on which such a medical examination is to take place, and the appellant declines to attend for or submit to such an examination, the Secretary of State is of course at liberty to make a fresh decision under regulation 8 of the 1995 Regulations. The appellant will, of course, then have a fresh right of appeal to the First-tier Tribunal. In such circumstances the onus will be on the appellant to show he has good cause for his failure to attend for or submit to such an examination. This decision is given under section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007.
CIB/3117/2008
CIB/3117/2008
CIB/3117/2008
20. So in the present case the tribunal was effectively applying a broader principle than that established in CIB/849/2001, namely that a claimant who declines to accept any reasonable condition attached to the conduct of a medical examination has thereby failed without good cause to submit to such an examination. 21. In addition, the tribunal in the present case made no findings as to the reasonableness or otherwise of the official policy about tape-recording medical examinations. It simply assumed that the Departmental policy was reasonable and that therefore the appellant had not shown good cause for refusing to submit to the medical examination. The tribunal also failed to consider whether the appellant had been given an adequate opportunity to consider his options in the light of the stated policy. Although the Medical Examination Centre proforma reporting the incident has a box ticked to say that the appellant refused a new appointment, it is by no means clear that he was actually offered one and, if so, on what terms. 22. The misunderstanding by the tribunal of the extent of the principle in CIB/849/2001 and the failure to make appropriate findings of fact in relation to the issue of the reasonableness (or otherwise) of the conditions and the question of good cause involve errors of law. I therefore allow the appeal and set aside the tribunals decision. 23. There is no point whatsoever in sending this case back to a new tribunal to be re-heard. I am therefore re-making (or substituting) my decision for that of the tribunal. My decision is as set out on page 1 above. The parties submissions and my reasons for making the decision in those terms are as follows. The Secretary of States submissions to the Upper Tribunal 24. The Secretary of States representative now involved in this case concedes, in a detailed submission, that the appellant attended as requested for the medical examination. He also accepts that in principle the appellants wish to tape-record the examination was perfectly reasonable. However, he points out that from time to time criticisms are levelled against doctors carrying out medical examinations for the Department. He therefore argues that it is in the interests of justice for the examining doctor to be provided with a copy of the recording, thereby necessitating two copies being made contemporaneously. He further contends that it is right and proper that the cost of arranging such a dual recording should fall on the person who wishes to have the examination tape-recorded. 25. The Secretary of States representative also acknowledges that there is no mention in the standard letters and leaflets provided to claimants about the possibility of taking a written note of the medical examination, or of the terms on which it may be tape-recorded. There is, however, a reference to the right to have a friend, carer or family member present, and to the option of having an officially provided chaperone in attendance. 26. The submission by the Secretary of States representative also helpfully includes an extract from the Departments Medical Services Guidance on the issue of recording medical examinations. It must be remembered that this is a statement of Departmental policy and not of law. It reads as follows:
CIB/3117/2008
CIB/3117/2008
CIB/3117/2008
What if there is a further refusal to undergo a medical unless it is taperecorded on the appellants (and not the Departments) terms? 38. The reality, however, is that this case may involve an irresistible force the appellants apparent insistence on tape-recording the medical on his terms meeting an immoveable object the Departments insistence on any examination being recorded only on its terms. 39. It is possible that some form of compromise may yet be reached. For example, the Department accepts that a family member or friend may accompany the appellant to a medical examination. Such a companion may of course keep a note, and even a verbatim note, of the proceedings. That may be acceptable to the appellant. 40. The possibility remains that the impasse will not be broken. In that event there is a real risk that a future tribunal will be faced with adjudicating upon a similar dispute, following a refusal by the Department to accede to the appellants request and a refusal by the appellant to modify his stance. 41. Clearly it would be not be right for the Upper Tribunal to provide a definitive view on a matter which is at present hypothetical. That said, it is the role of the Upper Tribunal to provide guidance in appropriate cases. This is one such case given the likelihood that the present circumstances may recur (either involving this appellant or indeed another claimant). 42. I entirely accept the appellants point that the accuracy of a third-party note may be challenged after the event in the way that a tape-recording may not be. The appellant, however, must also recognise that there may be sound reasons for the Departments resistance to the use of single-reel machines by claimants to taperecord medical examinations. 43. In the present case there is no suggestion that the appellant is acting in bad faith. But the Department will be understandably concerned that such recordings may be disseminated more widely (e.g. by claimants posting them on the internet) without the consent of the examining doctor. There is also the very real (and not fanciful) risk that unscrupulous individuals might digitally re-master such a recording and then use it as evidence in a spurious complaint against the doctor, either internally or to the General Medical Council. 44. In those circumstances it is difficult to see how the appellant, or anyone else in his position, has an absolute right to tape-record a medical examination on his own terms. This is not to say that the Departments restrictive policy about tape-recording cannot be challenged. 45. The appellant makes a number of good points in this context. He draws attention to the considerable (and probably prohibitive) cost that would be involved for an individual living on benefits in meeting the Departments restrictive criteria. He rightly points out that those conditions (which include the presence of a qualified engineer) are actually stricter than those in place for police interviews with suspects. He might also have added that the Departments own protocols for interviewing claimants under caution in the course of benefit fraud investigations do not require the presence of a qualified engineer (although dual-tape machines and sealed tapes are used).
CIB/3117/2008
CIB/3117/2008
CIB/3117/2008
10
60. Finally, I must acknowledge that there is no suggestion in this case that the appellant has acted other than in an open and straightforward manner. This is not, therefore, a case in which a claimant has surreptitiously tape-recorded an interview or medical examination. That type of case may well involve different considerations, e.g. as regards the admissibility of evidence in subsequent tribunal proceedings (on which see the decision of the Employment Appeal Tribunal in Chairman & Governors of Amwell View School v Dogherty (UKEAT/0243/06/DA). Summary of conclusions 61. For the reasons explained above, the decision of the tribunal involves an error of law. I therefore allow the appeal by the appellant to the Upper Tribunal. I re-make the tribunals decision in the terms as set out at the start of this decision.
CIB/3117/2008
11