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Evidence of disability

The Social Security Commissioner has given the following guidance on how the evidence of an approved disability analyst should be assessed.

1. In so far as the advice consists of an explanation, it is likely to be uncontroversial. However, the tribunal will have the assistance of the medically qualified panel member in assessing its accuracy.

2. In so far as the report or advice consists of an opinion, I hope that the following will assist tribunals.

3. In order to assess an opinion, the tribunal has to know the information on which it was based. That information may be stated, as it will be in full reports on capacity for work, disability living allowance or attendance allowance. Or it may be identifiable from the circumstances, as it will be in an advice to a decision-maker. If the tribunal cannot identify the supposed factual basis on which the opinion was made, it cannot rely on the opinion.

4. The tribunal has to decide whether the factual basis of the opinion was correct. To the extent that it was not and the difference is significant, the value of the opinion is undermined. If the tribunal accepts the factual basis as correct, the tribunal must decide whether to accept the opinion. In doing so, it will be relevant to know the professional background of the disability analyst. The tribunal may accept that they have all been trained and approved. But that training is supplementary to the analyst's professional training. It cannot turn a doctor into an occupational therapist or a physiotherapist into a doctor. And the professional background may be relevant to assessing the opinion given. To take some obvious examples, an occupational therapist's opinion on the aids that would assist a claimant may be more useful than that of a doctor, while a doctor's opinion on the risks of injury during an epileptic seizure may be more useful than those of a physiotherapist. (In practice, I suspect that the matters referred may depend on the particular's analyst background.) Accordingly, the tribunal will not be able to place much, if any reliance, on an opinion given by an analyst whose primary area of experience and expertise is not known.

5. That information will have to be provided for the tribunal in this case, if the Secretary of State wishes to rely on the advice given to the decision-maker. From the date of my decision, the Secretary of State will be on notice that tribunals need to know the area of professional expertise of an approved disability analyst. That information should be provided to the tribunal, if it is not already apparent from the evidence itself. Tribunals will not be expected to adjourn in order to obtain this information before assessing the evidence.

6. In practice, the significance of advice like that given in this case may not be great. The tribunal has to form its own conclusions. In doing so, it has the medical experience of the medically qualified panel member and the practical experience of the disability qualified panel member. It is, perhaps, only in exceptional cases that the outcome of the appeal will depend on, or be significantly influenced by, the analyst's advice. The position will be different, however, for the full reports on which tribunals place greater reliance, especially at a paper hearing.

[2007] UKSSCSC CDLA_2466_2007


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