Tribunal’s observation

At a recent tribunal, an empty cardboard box was produced and client was asked to move it accross the table, which she did and lost points (although she had already told them at the hearing that she could do this).  I know there is some case law on what a tribunal can ask client to do, but can’t find it. The box measured approx 18 ins x 10 ins x 6 ins.  Is this bulky enough for the test?

You might want to look at two cases here.

R(DLA)5/03 held that:

“A physical examination is more than mere observation of an activity performed by a claimant at someone’s request. A physical examination is a structured investigation applying medically recognised techniques in an attempt to elicit objective signs of injury, disease or dysfunction.”

CDLA/2195/2008 considered the issue too. The tribunal assessed the appellant in terms of how good he was at estimating time by asking him during the hearing how long he had sat there. Judge Williams said:

“It is not the task of a tribunal to examine or test individuals claiming disability living allowance. There is a thin line between carrying out observations of an appellant and conducting a physical examination of the appellant…A test of this kind is approaching, if not crossing, that line. It may also be approaching, perhaps crossing, another line: the duty of the tribunal to decide the case in an investigative way but not to provide evidence against a party that the other party has not provided. There must be equality of arms. If it was felt that there was not enough evidence here, then the tribunal had other ways of dealing with this, such as asking for an examining medical practitioner report or deciding the matter on the available evidence provided by the parties.”

hi

the tribunal is prohibited from carrying out a physical examination of the client by section 20(3)(a) of the social security act 1998.

i can’t find an IB/esa decision that is exactly on point for you but R(IB)(2/06) (which is about whether tribunal was correct in refusing to look at x rays) does confirm the above.

here’s a link -

http://www.osscsc.gov.uk/Aspx/view.aspx?id=1978

i think you should ask for statement of reasons and then appeal on that basis.  i’d be v surprised if decision didn’t get set aside.

cheers ros

R(DLA) 5/03 distinguishes between physical examination, which it absolutely can’t do except in IDB cases, and physical test and goes on to say:

“18. Section 20(3)(b) only prohibits a tribunal from requiring a claimant to undergo a physical test in order to test for actual or virtual inability to walk. On the face of it, it leaves the tribunal free to require a claimant to undergo a physical test for other aspects of entitlement to a disability living allowance. However, that is not a correct interpretation. The provision must not be interpreted in isolation. It can only be properly understood in its historical context of the development of the law. The provision began as section 55(2) of the 1992 Act and was enacted in relation to the creation of disability appeal tribunals. When those tribunals were abolished and replaced by the appeal tribunals under the 1998 Act, the provision was repeated. Historically, the only tests that were carried out before 1992 were those carried out by the medical appeal tribunals. Those tribunals had the power to carry out a physical examination of a claimant. In the case of appeals relating to mobility allowance, the examination was usually supplemented by a walking test. Viewed in that context, section 55(2)(b) of the 1992 Act and section 20(3)(b) of the 1998 Act prohibit only the test that was formerly used by medical appeal tribunals. They prohibit only that test, because no other test was ever used. They are negative in their effect. It is not appropriate to interpret them to confer a positive statutory authority to require a claimant to undergo a physical test for other purposes.

19. However, that does not mean that appeal tribunals may not invite claimants to demonstrate an activity. Tribunals are entitled to ask claimants to explain how they do something. There is limited scope for this enquiry to be supplemented by a demonstration in the context of the mobility component at the lower rate or of the care component. But, to the extent that this may be possible, there is no reason why tribunals should not also ask claimants to demonstrate. Such requests must, of course, be limited to the proper scope of a hearing. It is the function of a tribunal to conduct a judicial enquiry, not to undertake an occupational therapy assessment. If a claimant refuses to accede to the tribunal’s request, it may be entitled to draw inferences from that refusal. But this will depend on the reasonableness of the request and the reasons the claimant gives for refusing to comply.”