WF-v-Department for Social Development (II) [2013] NICom 18

Decision No:  C1/12-13(II)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

INDUSTRIAL INJURIES DISABLEMENT BENEFIT

Application by the claimant for leave to appeal
and appeal to a Social Security Commissioner
on a question of law from a Tribunal’s decision
dated 20 October 2011

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an application for leave to appeal from the decision of the tribunal which sat at Belfast on 20 October 2011.

2.	I held an oral hearing of the application.  I grant leave to appeal.  However, for the reasons I give below I do not consider that the tribunal has erred in point of law and I disallow the appeal.

REASONS

	Background

3.	The applicant claimed industrial injuries disablement benefit (IIBD) on 4 April 2011 from the Department for Social Development (the Department).  It was accepted by the Department that the applicant had sustained an industrial accident, namely firearms training as a police officer without adequate ear protection on or before 1 September 2003.  He stated that he had impaired hearing in both ears as a result and submitted a report of a specialist who had examined him.  The report made clear that hearing loss had arisen from firearms training and other exposure to loud noise in the course of his 32 years employment as a part-time constable in the Royal Ulster Constabulary (RUC) Reserve.  The report also showed that he suffered from moderate tinnitus.

4.	The applicant was examined for the Department by a medical adviser on 25 May 2011 who advised that the applicant had sensorineural hearing loss in both ears, with the left ear being affected more than the right.  The medical adviser considered that the resulting disablement should be assessed at seven per cent from 15 December 1993 for life.  The Department notified the applicant of its decision to this effect on 2 June 2011 and he appealed.  A tribunal disallowed the appeal on 20 October 2011.  The applicant requested a statement of reasons for the tribunal’s decision.  This was issued to him on 4 January 2012.

5.	On 3 February 2012 the applicant’s representative, Mr Mitchell of Citizens Advice, made an application for leave to appeal to the Social Security Commissioner.  The legally qualified member of the tribunal (LQM) refused the application by a determination issued on 16 February 2012.  By an application received on 15 March 2012 the applicant’s representative applied to a Social Security Commissioner for leave to appeal.

	Submissions

6.	The applicant submits that the tribunal has erred in law by:

	(i)	failing to give adequate reasons for its decision and had not indicated how it had resolved conflicts of fact or opinion on material matters;

	(ii)	failing to have regard to the issue of tinnitus in the assessment of the applicant’s disablement but rather focusing solely on hearing loss.

7.	On 31 May 2012 the Department was invited to make observations on the application.  On 13 June 2012 Mr Hinton replied for the Department, and indicated that he did not support the application.

	Hearing

8.	I held an oral hearing of the application.  The applicant was represented by Mrs Banks of Citizens Advice.  The Department was represented by Mr Hinton.

9.	Mrs Banks submitted that the tribunal had failed to give adequate reasons for its decision.  She relied on CI/499/2000.  She submitted that the tribunal “should have made it clear why it did not believe the claimant to be as disabled as he claimed”.  She submitted that the tribunal had not adequately dealt with the issue of tinnitus as opposed to hearing loss.  She submits that the reasons do not refer to the claimant’s own evidence at all and do not explain why the medical evidence was preferred over the claimant’s evidence.

10.	Mrs Banks further relied on CI/1802/2001.  She submitted that the tribunal did not give adequate reasons for rejecting the applicant’s evidence.  She submitted that the tribunal gave inadequate reasons to explain how the assessment of seven per cent disablement for life had been reached and that the element of tinnitus was omitted from consideration, as opposed to the element of hearing loss.

11.	Mr Hinton pointed out that absolute deafness attracted a percentage disablement figure of 100 per cent.  He submitted that there was no other guidance and the tribunal had to make an assessment on the evidence before them.  He submitted that tinnitus was fully taken into account in the assessment of seven per cent disablement.  He submitted that the basis of the award was absolutely clear.  He pointed out that there was no dissent from the report of Mr Darcy at the hearing.  He submitted that the tribunal was within its rights to have regard to the relevant scale relating to industrial deafness as a prescribed disease.  He submitted that the tribunal’s findings of fact did not fail to address any of the medical evidence.

	Assessment

12.	The first submission of the applicant is to the effect that the tribunal did not take his full disablement into account.  His disablement consisted of two elements – the hearing loss he had experienced and the tinnitus.  From the record of proceedings and statements of reasons, it appears to me that the tinnitus was fully taken into account by the tribunal in addition to the hearing loss.  The tribunal said in particular:

“In our opinion the assessment of 7 per cent for life fully and fairly represents the level of disability resulting to (the claimant) in respect of his impaired hearing, including both hearing loss and tinnitus, bearing in mind the above test results, the appropriate usage of a digital hearing aid and the positive response gained through such usage”.

13.	The tribunal does not point to any respect in which it found the applicant’s evidence unreliable.  It is implicit that the evidence given by the applicant about the effect of the particular accident on his daily life was accepted.  There was no dispute in the medical evidence, as the findings of the chief audiologist and the evidence of the consultant, Mr Darcy, were very similar.  I do not accept the submission that the tribunal rejected the applicant’s evidence and did not explain why.

14.	As pointed out by the Commissioner in CI/499/2000, a tribunal cannot explain why it assessed disablement at a particular percentage point.  It can give a general indication of why it made an assessment around a particular level.  The particular tribunal referred to the applicant’s disability in respect of both hearing loss and tinnitus in doing so.  It was therefore clear what disablement formed the basis for the tribunal’s assessment of percentage disablement.  I do not accept the applicant’s submission.

15.	The applicant further submitted that the tribunal did not explain the basis of its assessment of seven per cent disablement.  The tribunal did in fact do so.  It noted the hearing test results and tinnitus.  It referred to the comparable scale for disablement appropriate for an industrial deafness award and observed that the applicant’s degree of hearing loss fell short of this by a very considerable margin.  It noted that there were positive results from use of a hearing aid.

16.	In CI/1802/2001 the Deputy Commissioner says at paragraphs 7 and 8:

“…Those regulations therefore state only that the tribunal “may have such regard as may be appropriate to the prescribed degrees of disablement” when making its assessment.  This indicates the very broad discretion which individual tribunals have in this type of case.  In many cases it is simply not possible for a tribunal to give precise reasons for the conclusion which it has reached.

8. In my judgement, however, as a minimum, the claimant and the Secretary of State are entitled to know the factual basis upon which the assessment has been made; in other words what disabilities were taken into account by the tribunal in concluding that a particular percentage disablement was appropriate.”

17.	In reaching its assessment, by regulation 11(6) of the Social Security (General Benefit) Regulations (NI) 1982 a decision-maker may have regard to the percentage disablements set out in Schedule 2 to those regulations.  This does not expressly enable comparison with the degrees of occupational deafness set out in Schedule 3 to the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations (NI) 1985.  However, apart from the category of absolute deafness at paragraph 6, no direct assistance on hearing loss is otherwise derived from the Schedule 2 scales.

18.	In R(I)2/06 it was held by the Tribunal of Great Britain Commissioners at paragraph 75 that, in reaching a valid decision on an individual claimant’s functional disablement, scales developed for a different purpose may have a limited value.  In other words, they can have some value.  I think that some caution must be applied in using the occupational deafness scales as a direct comparator.  However, in the present case, I do not consider that the taking into account of those scales has led to any material error in the tribunal’s approach.

19.	I received further submissions on the issue of whether the tribunal was correct to consider the use of an aid such as a hearing aid in assessment of the percentage degree of disablement.  Mrs Banks contrasted the position with disability living allowance where express reference is made to the use of aids when assessing percentage deafness under regulation 2(b) of the Social Security (Disability Living Allowance) Regulations (NI) 1992.  She further submits that paragraph 1(c) of Schedule 6 to the Social Security Contributions and Benefits (NI) Act 1992 precludes consideration of matters other than age, sex and physical and mental condition.

20.	Mr Hinton relies on R(I)7/63 where it was said at paragraph 20 that “it is important to take into account the claimant’s condition without glasses and the fact that it can be corrected by glasses…” and R(I)7/67 where it was said at paragraph 19 that: 

“...artificial aids should be taken into account, subject to qualifications, some of which are referred to in Decision R(I)7/63.  It would be absurd to suppose that a man who has a permanent partial loss of faculty in his leg or his hearing or his vision should be entitled to say that he will not use any stick or hearing aid or glasses, and is therefore entitled to a higher assessment than a similar man who reasonably agrees to make use of these aids.  In short, if a man has lost part of a faculty, he suffers a loss of faculty even though its effects can be mitigated by artificial aids.  But in considering disability, i.e. what he can do, the availability of such aids must be taken into account...”

21.	I conclude therefore that the tribunal has not erred in taking into account the use of a hearing aid in mitigating disablement.

22.	I consider that the applicant has made out an arguable case and therefore I grant leave to appeal.  However, I do not consider that the tribunal has erred in law and I disallow the appeal.

(signed):  O Stockman

Commissioner

27 February 2013