Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1995] NISSCSC A3-94(II) (25 January 1995)

 


A3/94(II)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS

(NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS)

(NORTHERN IRELAND) ACT 1992

INDUSTRIAL DISABLEMENT BENEFIT

Application out of time by the claimant for

leave to appeal to the Social Security Commissioner

on a question of law from the decision of

Belfast Social Security Appeal Tribunal

dated 25 February 1994

DETERMINATION OF THE SOCIAL SECURITY COMMISSIONER

1. In this case the claimant seeks leave to appeal against the decision of Belfast Social Security Appeal Tribunal, dismissing his appeal against the Adjudication Officer's decision that Prescribed Disease No. A10, known as occupational deafness, was not prescribed in relation to the claimant. The application for leave to appeal is out of time, but for special reaS... I accept and proceed to consider and determine it.
2. Briefly, the background facts are that in June 1993 the claimant applied for disablement benefit in respect of occupational deafness, and in his claim form he provided details of his employers since October 1979. The only period during which he claimed that he worked in a prescribed occupation was from July 1988 to June 1989, when he was employed as a driver/labourer by G( N( & S....
3. Enquiries having been made as to the nature of the claimant's work with G... N... & S... the Adjudication Officer decided that the claimant had not at any time on or after 5 July 1948 been in employed earner's employment which was prescribed in relation to occupational deafness, and he accordingly disallowed the claim for disablement benefit. In reaching this decision the Adjudication Officer had regard to relevant provisions in Acts and Regulations, including, in particular, those of regulation 2 of and Schedule 1 to the Social Security (Industrial Injuries)(Prescribed Diseases) Regulations (Northern Ireland) 1986, (the Prescribed Diseases Regulations), which, so far as they are relevant to this case are as follows:-

"2. For the purposes of Chapter V of Part II of the Act -

(a) .....

(b) ......

(c) occupational deafness is prescribed in relation to all persons...

who have been employed in employed earner's employment -

(i) at any time on or after 5th July 1948; and

(ii) for a period or periods (whether before or after

5 July 1948) amounting in the aggregate to not less

than 10 years in one or more of the occupations set out

in the second column of paragraph A10 of Part I of

Schedule I to these regulations .....

(d) ......"

Sub-paragraphs (b) and (c) of the second column of paragraph A10 in the Schedule read:-

"Any occupation involving:-

(b) the use of pneumatic percussive tools on metal, or work wholly

or mainly in the immediate vicinity of those tools whilst

they are being so used; or

(c) the use of pneumatic percussive tools for drilling rock in

quarries or underground or in mining coal, or work wholly

or mainly in the immediate vicinity of those tools whilst

they are being so used;"

4. The claimant appealed against the disallowance of his claim stating, inter alia, that "although not included on your list the work I did for G... N... was the direct cause of my deafness." However, when the matter came before the Appeal Tribunal the claimant's case was that his work with G... N... & S... was, after all, prescribed. According to the record of the proceedings, the claimant's submission was that his work came within paragraph (c) of the second column of paragraph A10 of Part I of Schedule I to the Prescribed Disease Regulations. There had, however, been an amendment of the Regulations from January 1988, and in my view it is more likely that paragraph (b) was the relevant one. For the purposes of this determination it matters not whether the Tribunal considered the terms of paragraph (b) or (c) of the second column of the Schedule. Both concern occupations involving the use of "pneumatic percussive tools" and the Tribunal's decision was that because the tool which the claimant used was an electric kango hammer it did not come within the terms of the Schedule. On this one narrow point the Tribunal disallowed the claimant's appeal; their decision being recorded as follows:-

"Appeal fails. Prescribed disease No A10 known as Occupational

Deafness is not prescribed in relation to the claimant because

he did not become deaf through the use of a pneumatic percussive

tool, but through the use of an electric kango hammer which

cannot be classified as a pneumatic percussive tool."

5. The grounds of the claimant's application for leave to appeal to the Commissioner, in relation to which the claimant was said to be represented by T( S( & Company, Solicitors, of (, are as follows:-

"That the Tribunal wrongly interpreted paragraph A10 of Part 1

of Schedule 1 to the Social Security Industrial Injuries

(Prescribed Diseases) Regulations (NI) 1986 and that its decision

on the "pneumatic" nature of the tool used by the applicant

was supported by no, or insufficient evidence in regard to the

true nature of the said tool."

6. In response to a request for her observations on the application for leave to appeal, the Adjudication Officer then in charge of the case pointed out that when disablement benefit was claimed in respect of occupational deafness there were 3 issues to be determined -

(a) whether the claimant has been employed in any occupation set out in paragraph A10 of Part I of Schedule I to the Prescribed Diseases Regulations; and

(b) whether such work has been carried out for a period or periods which amount in the aggregate to not less than 10 years - regulation 2(c) of the Prescribed Diseases Regulations; and

(c) whether such work was carried out in the 5 years before the date of claim - regulation 23(2) of the Prescribed Diseases Regulations.

7. As it seemed to me that the claimant had no realistic prospect of being able to establish that he had, throughout his working life been employed in a prescribed occupation for a minimum of 10 years, I directed that his attention be drawn to the "10 year condition" and that he be asked whether or not he wished to pursue his application for leave to appeal. The claimant's response to this enquiry was that the 10 year condition did not apply in his case and that the points raised by the Adjudication Officer were frivolous and time wasting. He further expressed confidence that he would be able to prove his case beyond doubt; presumably meaning thereby that he would succeed in establishing that an electric kango hammer is a pneumatic percussive tool.
8. Prior to the hearing of this application the claimant furnished me with a number of Parliamentary reports on the subject of occupational deafness, dating back to 1969. I was also notified that his solicitors, T( S( & Company, were no longer instructed in this case.

At the hearing the claimant stated that he proposed to demonstrate how a law which had been drafted as long ago a 1969 should be regarded as having developed since then. The spirit of the law was such that, by natural progression, a pneumatic percussive tool should now in his submission be taken to include an electric tool. At this stage I asked the claimant if he was in any position to prove satisfaction of the 10 year employment condition. He appeared to be greatly affronted by this enquiry and by my efforts to explain to him why in my opinion it was necessary for him to establish that he had been employed in a prescribed occupation for an aggregate period of 10 years before he qualified for disablement benefit in respect of occupational deafness. He was shown a copy of leaflet NIL207; the relevant parts of regulation 2 of the Prescribed Diseases Regulations were read over to him, and it was pointed out that the Parliamentary Reports which he had handed in all made it clear that entitlement to benefit should depend, inter alia, upon proof of employment in a noisy occupation over a lengthy period; initially 20 years. The claimant was clearly not impressed by my attempts to explain to him why in my opinion his claim for disablement benefit in respect of occupational deafness was doomed to failure. He did, however, abandon his own attempt to persuade me that an electric kango hammer is a pneumatic percussive tool within the terms of the Prescribed Diseases Regulations. It is therefore correct to say that that is not a subject upon which I have heard detailed argument. In the circumstances all that I propose to say on that point is that, as at present advised, I do not consider that there is any reasonable ground for holding that the decision of the Appeal Tribunal is or may be erroneous in point of law. At the same time I am fully satisfied that as the claimant is, on his own admission, unable to satisfy the 10 year employment condition, there would be absolutely no point in granting him leave to appeal against the Tribunal's decision. Leave to appeal is accordingly refused.

(Signed): R. R. Chambers

CHIEF COMMISSIONER

25 January 1995