Decision reference CIB 927 2009 from the Tribunals Service on Attending medical examination: good cause for non-attendance. Click here for full decision.

"The appellant was a woman in her fifties with limited mobility who was claiming National Insurance credits on grounds of incapacity. When she was asked to attend a DWP medical examination in 2008, she cancelled and Medical Services gave her another appointment. However she did not attend on the rearranged date (although she did phone Medical Services beforehand to give her reasons). Because she had already cancelled once, Medical Services referred her case to the DWP who decided that she did not have 'good cause' for non-attendance and stopped her incapacity credits.

She appealed, explaining that she was 'unable to travel too far', and also that Medical Services had refused to rebook the appointment. However the First-tier Tribunal noted that the appellant had been able to attend a recent hospital outpatient's appointment, and dismissed her appeal, observing that whilst -

'… it would have been uncomfortable to attend the DWP medical, the tribunal is unable to accept that it would have been too painful to go given the appellant’s recent attendance at outpatients.'

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Judge Wikeley holds that the tribunal erred in law on two counts. He discusses the main error of law as follows -

'In principle a tribunal is perfectly entitled to take the view that, everything else being equal, if a claimant is able to attend an appointment at a hospital outpatient department, then she is also able to attend an appointment for a DWP medical examination. That is quintessentially a matter for the tribunal's good judgement. However, it is by no means evident in the present case that the tribunal was entitled to take that approach on the particular facts of this case.'

The judge notes that the tribunal could see that the outpatient appointment was at a nearby hospital about a mile from the claimant's home and it could have seen that the DWP medical examination centre was about five miles away in a different part of London. He holds -

'… the further the distance the more difficult and more tiring and painful the journey might be expected to be. The tribunal should have considered those various issues, and especially the comparative distances, in the light of the appellant's evidence that she was unable to travel too far. Its failure to do so amounts to an error of law in terms of finding the necessary facts to justify and to explain the decision reached.'

The second error of law, Judge Wikeley holds, concerned the way that Medical Services made no reference to its procedure of referring cases to the DWP to decide on 'good cause' for non-attendance if a claimant has already cancelled once. The judge finds that the claimant did not know that she could only change her appointment once and that the tribunal failed to explain why it did not accept her account as constituting good cause.

As a result, Judge Wikeley sets aside the tribunal's decision and substitutes his own decision that the appellant did show good cause for her failure to attend the medical examination."

Summary by Lasa