CSI/89/96

The Social Security and Child Support Commissioners
SOCIAL SECURITY ADMINISTRATION ACT 1992
APPEAL TO THE COMMISSIONER FROM A DECISION OF A SOCIAL SECURITY APPEAL TRIBUNAL UPON A QUESTION OF LAW
DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This claimant’s appeal succeeds. I hold the decision of the Dundee social security appeal tribunal dated 13 June 1996 to be erroneous in point of law and accordingly set it aside. I refer the case to the adjudication officer for consideration afresh in light of what is contained in paragraphs 7 and 8 below.

2. In October 1995 the claimant sought industrial injuries disablement benefit in respect of prescribed disease D7 (occupational asthma). An adjudication officer rejected the claim upon the basis that the claim was made on 4 October 1995 which was more than 10 years since the claimant has last been in employed earner’s employment in circumstances where he could have been exposed to a relevant agent. The last such employment had been in May 1985. The claimant appealed to the tribunal.

3. The claimant’s case before the tribunal was that since May 1985 he had been working exposed still to possible relevant agents but in that work he had been self-employed in his own firm. The tribunal founded on regulation 36(1) of the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985 and noted the distinction between "employed earner" and "self-employed earner" set out in section 2(1)(a) and (b) of the Social Security Contributions and Benefits Act 1992. They disallowed the appeal upon the basis that said regulation 36(1) limited the claims in respect of occupation asthma to not more than 10 years after the latest date on which claimant had worked in a prescribed occupation and that the effect of said section 2(1)(b) was that a "self-employed earner" meant someone other than "in employed earner’s employment". So far so good.
4. The claimant appeals upon the basis of discrimination against self-employed persons. Of itself that demonstrates no error of law in the tribunal decision. I am only concerned with questions of law. If the effect of the statutory and regulatory provisions produces a discriminatory result then that must be assumed to have been the intention of the legislature.

5. However the adjudication officer now concerned has drawn attention to decision CI/286/95 dated 13 October 1995. That decision was not earlier considered in relation to this case. It deals with a different prescribed disease, namely occupational deafness. But in that regard the Prescribed Diseases Regulations make a similar provision about the time for claiming benefit. In that case it is to be found in regulation 25 of the Prescribed Diseases Regulations which provide that benefit:-
"...shall not be paid in pursuance of a claim in respect of occupational deafness which is made later than 5 years after the latest date, before the date of claim, on which the claimant worked in an occupation prescribed in relation to occupational deafness unless - [which do not apply]....."
After a hearing and full discussion of the issue, Mr Commissioner Howell QC determined that whilst there must have been exposure in terms of the occupation prescribed in Schedule 1 to the regulations as an employed earner in order to satisfy the provision of regulation 2(a) the "5 year rule" could apply to self-employed earners because in the prescribed occupation there was therein no mention of "employed earners employment" and so no restriction in that regard.

6. Regulation 36 provides that benefit:-
"....shall not be paid in pursuance of a claim in respect of occupational asthma which is made later than 10 years after the latest date, before the date of claim, on which the claimant... worked in an occupation prescribed in relation to occupational asthma."
There follow certain provisions which do not appear to apply to the present case, although that is not to prevent the tribunal considering them if attention is drawn to them. When regard is had to the terms of prescribed disease D7(x) it is enough that there be exposure to a sensitising agent without regard to the nature of the employment when testing the latest date of exposure for the purpose of regulation 36(1). I am happy to follow the distinction made by my brother Commissioner and conclude that the tribunal erred in this case, albeit upon the basis of a matter not traversed before them.

7. The result is that so long as within 10 years of the date of claim the claimant has been exposed to a sensitising agent by his self-employment his claim may be sound in law. I note that he requested an oral hearing of the case in order to discuss that matter, which request was refused by a Nominated Officer. It is not normal for the Commissioner to deal with issues of fact, especially when these have not been investigated to any extent below. I note that neither the adjudication officer nor the tribunal, even in the evidence which they recorded, appear to have received information about the claimant’s current position about exposure to sensitising agents. Even his original claim form is somewhat ambiguous.

8. I have come to the conclusion that the quickest way to dispose of this case, hopefully, is to restore it to the adjudication officer to receive such information as the claimant may now be able to provide on the matter of sensitising agents and in particular those referred to in box 5 on page 4 of the bundle. That, however, is not a restrictive limitation. Equally it will then be open to the adjudication officer to conduct such further enquiry as he thinks necessary. That should be capable of being concluded, given co-operation by both sides, fairly quickly and in less time than if the case is restored to the somewhat more formal procedure of the tribunal. If, however, the adjudication officer’s new decision upon the claim is also adverse to the claimant’s fresh rights of appeal will rise.

9. The appeal is allowed and the case restored to the adjudication officer for consideration anew.

(Signed)
W. M. Walker QC
Commissioner 

28 October 1997