Northern Ireland - Social Security and Child Support Commissioners' Decisions

[2001] NISSCSC C3/01-02(II) (25 October 2001)

 


C3/01-02(II)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998 DISABLEMENT BENEFIT Appeal to the Social Security Commissioner on a question of law from the decision of Belfast Appeal Tribunal dated 18 July 2000 DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal by the claimant, with leave of a Commissioner, against the decision of the Tribunal that the extent of the claimant's disablement was to be assessed at 50% from 3 September 1999 to 2 September 2004 and that the assessment was provisional.
2. Leave to appeal to a Commissioner was refused by the Legally Qualified Member on 9 November 2000. However, a Commissioner granted leave to appeal on 10 October 2001.
3. Having considered the circumstances of the case and any reasons put forward in the request for a hearing, I am satisfied that the appeal can properly be determined without a hearing.
4. This case concerns a reassessment of the disablement resulting from prescribed disease A10 (occupational deafness). In this case the extent of the claimant's disablement had previously been assessed at 80% from 3 September 1994 to 2 September 1999. In connection with the reassessment she was examined at the clinic of Mr S..., otologist, on 20 October 1999 and, on the results of the test carried out there, the extent of her disablement was assessed at 60%. As the amount of Disablement Benefit awarded had decreased the claimant appealed.
5. At the appeal hearing the Tribunal was given details of a test supplied by Mr G...'s clinic and these findings assessed the claimant's disability at 50%. As I understand the position, Mr G... is also an otologist.
6. The claimant was represented by Agnew, Andress, Higgins, Solicitors and this firm made the relevant application and submissions in relation to this case.
7. Mrs Gunning, on behalf of the Decision Making and Appeals Unit of the Department, made a very relevant submission dated 1 September 2001 which, in the circumstances, I consider to quote from at some length as follows:-

"The main issue the Tribunal was required to decide was whether [the claimant] was still suffering from a loss of faculty resulting from prescribed disease A10 (occupational deafness) and, if so, the extent of that disablement. To assist the tribunal in the determination of that issue [the claimant] was subjected to a hearing test at Mr G...'s clinic. The results of that test differed from the results of the previous test carried out for the Department on 20 October 1999 and the tribunal based its decision on the results of the test at Mr G...'s clinic. It stated that it preferred those results and went on to state that results of hearing tests can vary within hours and that a difference of 1dB average of hearing losses can make a difference of 10% in degree of disablement.

However it did not state why it preferred the results from Mr G...'s clinic. When the two reports are compared the report of 20 October 1999 is the more detailed. It states the name and number of the audiometer used, the date it was last calibrated (12 July 1999), that the responses were precise and repeatable and that the audiogram was consistent with the testing officer's informal observation of [the claimant's] communications ability. The otologist, , Mr S..., interpreted the results of the audiometric test and estimated that from his general observations of [the claimant] her hearing disorder was severe and stated that there was no discrepancy between that estimate and the audiogram. He also stated there had been a positive Rinne test (512Hz) in both ears indicating sensorineural deafness.

On the other hand Mr G...'s report gives no details of the machine used for the test (it simply sets out the results), is not signed and does not contain any otologist comments on the results. In Great Britain Mr Commissioner Jacobs recently considered a case concerning a reassessment of the disablement resulting from occupational deafness in CI/2012/2000 – starred Decision No 22/01. At paragraph 11 he stated that a claimant cannot regain a permanent hearing loss and went on to consider why a test would show an improvement. At paragraph 16 he stated that if a tribunal has different types of evidence it has to weigh the evidence as a whole and that a judgement must be reached after considering the merits of all the evidence.

In this particular case the tribunal was faced with different results from the same type of test and I submit that it was required to state why it preferred Mr G...'s results – see C38/98(IB), paragraph 8. While the tribunal stated that it concluded that the 80% assessment in 1994 was a "rogue" result and that the results "all around the 50% or 60% are more likely to be correct" I consider this does not adequately explain why it preferred the results from Mr G...'s test. Accordingly I support the application."

8. In my view Mrs Gunning was correct to support the claimant's case for the reasons that she has set out. In particular, I consider that the Tribunal in the present case has not explained adequately why it preferred the results of Mr G...'s test in the circumstances. Accordingly, I also conclude that the Tribunal erred in law.
9. Mrs Gunning made an additional important comment in her submission of 1 September 2001. She stated as follows:-

"For completeness I would point out that when the tribunal accepted [the claimant's] hearing loss it was then required to calculate the extent of her disablement using the figures and formula set out at Parts II and III of Schedule 3 of the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations (Northern Ireland) 1986, as amended. This is:

Degree of disablement of better ear x 4 + Degree of disablement of worse ear 5

Using the results of Mr G...'s test the calculation is as follows:

50 x 4 + 70 5 = 200 + 70 ÷ 5 = 270 ÷ 5 = 54%

The tribunal's calculation is wrong as it assessed the disablement at 50%. However this makes to material difference to the amount of disablement benefit awarded as, under the provisions of section 103(3)(a) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, an assessment of 54% is treated as an assessment of 50%"

10. While the error may be somewhat academic in the circumstances, it is correct for Mrs Gunning to draw the discrepancy and the error in the calculation to my attention. Accordingly, any further Tribunal hearing the case should bear this in mind even though the error is not one of substance in the present case.
11. In the circumstances I am satisfied that the Tribunal's decision is erroneous in point of law for the reasons set out at paragraph 8. I therefore allow the appeal, set aside the decision of the Tribunal and refer the case back to a differently constituted Tribunal for a rehearing.

(Signed): J A H MARTIN QC

CHIEF COMMISSIONER

25 OCTOBER 2001