Northern Ireland - Social Security and Child Support Commissioners' Decisions

This is an appeal, leave having been granted by the legally qualified panel member (LQPM), against a decision dated 19 March 2004 of an appeal tribunal sitting at Omagh. That Tribunal disallowed the claimant's appeal against a Departmental decision to the effect that the claimant was not entitled to reduced earnings allowance (REA) because the date of onset of the relevant prescribed disease was not on or before 1 October 1990. The grounds of appeal to me were on an OSCC1 form received in the Commissioners Office on 1 October 2004. The grounds referred to an earlier tribunal decision of 27 September 2002 (the 2002 tribunal). That tribunal had decided the date of onset of the prescribed disease upon which the claims for disablement benefit and REA, the subject of the present appeal, were based. The relevant disease was byssinosis and the 2002 tribunal had concluded and found that the date of onset of that disease was 30 April 1993. The instant Tribunal reasoned that it was bound by the findings of the earlier tribunal on the date of onset. It therefore had to conclude that the claimant was not entitled to REA because the date of onset of the relevant prescribed disease was not on or before 1 October 1990. It applied legislation including paragraph 11(1) of Schedule 7 to the Social Security Contributions and Benefits Act (the Act) and Schedule 2 and regulation 6(2)(b) of the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations (Northern Ireland) 1986 (the Regulations).

The claimant was represented in the appeal to me by Miss McB... of Messrs O... R... and Co, Solicitors and the Department has been represented by Mrs Gunning of its Decision Making Services branch (DMS). Miss McB...'s grounds of appeal were that the Tribunal had erred in considering itself bound by the decision of the earlier tribunal of 27 September 2002. The grounds of appeal made no mention of any legislation but contended that the instant Tribunal should not have relied on the 2002 tribunal's finding as to the date of onset of disease because it was not possible for the 2002 tribunal to be definitive of the exact date of onset of the relevant prescribed disease.

The appeal was opposed by Mrs Gunning. In a helpful letter dated 3 December 2004 Mrs Gunning submitted that to be entitled to REA in respect of a prescribed disease, a person must, amongst other conditions, have a disablement assessment of at least one per cent and the date of onset of the relevant disease must be before 1 October 1990. In support of this Mrs Gunning referred to paragraph 11(1) of Schedule 7 to the Act. Mrs Gunning further submitted that the date of onset of the disease was to be determined in accordance with regulation 6 and Schedule 2 to the Regulations. Mrs Gunning submitted further that, in the claimant's case, the 2002 tribunal found that the claimant was suffering from a prescribed disease and that the date of onset thereof was 3 April 1993. Mrs Gunning referred to decision number CI/1605/2002 a decision of Mr Commissioner Rowland in Great Britain. Having considered the decision of the Court of Appeal in Secretary of State for Work and Pensions versus Whalley [2003] EWCA (reported as R(I)2/03), Commissioner Rowland held that by virtue of the provisions of regulation 6(1) a finding as to the date of onset of a prescribed disease made in respect of a claim for disablement benefit was binding in respect of a claim for REA. Mrs Gunning submitted that Commissioner Rowland went on to hold that it was necessary for a person who wanted to claim REA and was dissatisfied as to the date from which he had been found to suffer from a relevant loss of faculty as a result of a prescribed disease to challenge the decision in respect of the disablement assessment.

Reasons

I am in agreement with Mrs Gunning's submission in this case. As she submits, the tribunal, at an earlier hearing on 28 March 2003, had adjourned, at the request of the claimant's representative (who was not at that stage Miss McB...) to enable the representative to pursue a possible appeal or setting aside of the decision of 27 September 2002. When the hearing resumed on 19 March 2004 the LQPM reminded the parties of the terms of adjournment and the current position (that the 2002 tribunal decision had not been appealed or set aside). Miss McB..., who attended that hearing, indicated that she felt it would be a waste of time and money to go to the Commissioner on that decision before knowing what the instant Tribunal might decide. The instant Tribunal therefore made its decision.

I am in full agreement with Mrs Gunning that the instant Tribunal was correct when it decided that it was bound by the decision of the 2002 tribunal regarding the date of onset of the disease. I am also in agreement with her that the Tribunal gave the claimant the opportunity to challenge the decision of the 2002 tribunal but that opportunity was not taken. I am also in agreement with Mrs Gunning that the instant Tribunal's decision is sustainable on the evidence and that no error of law has been identified therein.

I must also observe that I am somewhat at a loss as to why the opportunity, which had been sought by the claimant's earlier representative, was not taken to challenge the decision of the 2002 tribunal. However, it was not taken and that left the instant Tribunal in a position of being bound by the 2002 decision as to date of onset – ie that it was 30 April 2003.

Section 94 of the Act (which is contained in Part V thereof) provides for the rights to industrial injuries benefit. REA is an industrial injuries benefit (Section 94(2)). Schedule 7 is made under section 106 which is also contained in Part V. Paragraph 11 of Schedule 7 provides:

"… a person shall not be entitled to reduced earnings allowance to the extent that the relevant loss of faculty results from an accident happening on or after 1st October 1990 …".

Schedule 2 to the Regulations provides that references to accidents are to be construed as references to the relevant disease and references to the date of the relevant accident are to be construed as references to the date of onset of the relevant disease.

Regulation 6(2)(b) of the Regulations provides:

"Where the claim for the purposes of which the date of onset is to be determined is –

(b) a claim for disablement benefit (except in respect of occupational deafness), the date of onset shall be the day on which the claimant first suffered from the relevant loss of faculty on or after the 5th July 1948; …"

Regulation 6(1) provides that the date of onset determined for the purposes of the first claim in respect of a prescribed disease suffered by a person shall be treated as the date of onset for the purposes of any subsequent claim in respect of the same disease suffered by the same person.

Once therefore the 2002 tribunal had determined the date of onset of the relevant prescribed disease that date had to be treated as the date of onset for the purposes of any subsequent claim in respect of the same disease. The claim for REA was a subsequent claim in respect of the same disease. Applying regulation 6(1), the date of onset had to be the date fixed in connection with the first claim ie the claim on which the 2002 tribunal gave its decision. That being so the date of onset had to be, for purposes of all subsequent claims, 30 April 1993. It is therefore obvious that the instant Tribunal had no alternative, the claimant's representative having declined to challenge the decision of the 2002 tribunal, but to accept the date of onset found by the 2002 tribunal ie 30 April 1993.

Once the instant Tribunal had accepted the date of onset as 30 April 1993 it was bound by paragraph 11 of Schedule 7 to the Act to find the claimant not entitled to REA.

The instant Tribunal decision was therefore correct. The claimant's representative informs me that she has now sought supersession of the decision of 27 September 2002. She asked me to postpone my decision to await the outcome. I declined to do so. I have to decide whether or not the decision of the instant Tribunal was in error of law. In my view it was not. I therefore dismiss the appeal.

(Signed): M F Brown

Commissioner

5 May 2005