PF-v-Department for Social Development (II) [2011] NICom 141

Decision No:  C6/10-11(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 26 November 2009

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1.    Having considered the circumstances of the case, I am satisfied that the application can properly be determined without a hearing.

 

2.    I grant leave to appeal and proceed to determine all questions arising thereon as though they arose on appeal.

 

3.    The decision of the appeal tribunal dated 26 November 2009 is in error of law.  The error of law identified will be explained in more detail below.

 

4.    Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against.

 

5.    For further reasons set out below, I am unable to exercise the power conferred on me by Article 15(8)(a) of the Social Security (Northern Ireland) Order 1998 to give the decision which the appeal tribunal should have given.  This is because there is evidence relevant to the issues arising in the appeal to which I have not had access, and there may be further findings of fact which require to be made.  Further I do not consider it expedient to make such findings, at this stage of the proceedings.  Accordingly, I refer the case to a differently constituted appeal tribunal for re-determination.

 

6.    In referring the case to a differently constituted appeal tribunal for re-determination, I direct that the appeal tribunal takes into account the guidance set out below.

 

7.    It is imperative that the appellant notes that while the decision of the appeal tribunal has been set aside, the issue of his entitlement to industrial injuries disablement benefit (II) remains to be determined by another appeal tribunal.  In accordance with the guidance set out below, the newly constituted appeal tribunal will be undertaking its own determination of the legal and factual issues which arise in the appeal.

 

       Background

 

8.    On 3 September 2009, a decision-maker of the Department decided that the appellant was not entitled to II.  The basis of the refusal of entitlement was that the appellant was not employed in an occupation which is prescribed in respect of Prescribed Disease A11.

 

9.    An appeal against the decision dated 2 September 2009 was received in the Department on 23 September 2009.  On 25 September 2009 the decision dated 2 September 2009 was reconsidered but was not changed.

 

10.   The appeal tribunal hearing took place on 26 November 2009.  The appellant was not present but the record of proceedings for the appeal tribunal hearing noted that the appeal tribunal had before it hospital notes and records and correspondence from the appellant, dated 21 October 2009, and dated as received in the Appeals Service (TAS) on 26 October 2009.  A Departmental presenting officer was present at the oral hearing of the appeal.  The appeal tribunal disallowed the appeal and confirmed the decision of the Department dated 2 September 2009.

 

11.   On 9 March 2010 an application for leave to appeal to the Social Security Commissioner was received in TAS.  On 23 March 2010 the application for leave to appeal was refused by the legally qualified panel member.

 

       Proceedings before the Social Security Commissioner

 

12.   On 16 April 2010 a further application for leave to appeal was received in the Office of the Social Security Commissioners and Child Support Commissioners.  On 12 May 2010 observations were sought from Decision Making Services (DMS) and these were received on 8 June 2010.  DMS agreed that the decision of the appeal tribunal was in error of law but that the outcome decision arrived at by the Department should remain the same.  Observations were shared with the applicant on 15 June 2010.  On 7 July 2010, further observations in reply were received from the appellant’s representative, Worthingtons Solicitors, which were shared with DMS on 8 July 2010.

 

       Errors of law

 

13.   A decision of an appeal tribunal may only be set aside by a Social Security Commissioner on the basis that it is in error of law.

 

14.   In R(I) 2/06 and CSDLA/500/2007, Tribunals of Commissioners in Great Britain have referred to the judgment of the Court of Appeal for England and Wales in R(Iran) v Secretary of State for the Home Department ([2005] EWCA Civ 982), outlining examples of commonly encountered errors of law in terms that can apply equally to appellate legal tribunals.  As set out at paragraph 30 of R(I) 2/06 these are:

 

“(i)      making perverse or irrational findings on a matter or matters that were material to the outcome (‘material matters’);

(ii)      failing to give reasons or any adequate reasons for findings on material matters;

(iii)      failing to take into account and/or resolve conflicts of fact or opinion on material matters;

(iv)      giving weight to immaterial matters;

(v)      making a material misdirection of law on any material matter;

(vi)      committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of proceedings; …

 

Each of these grounds for detecting any error of law contains the word ‘material’ (or ‘immaterial’).  Errors of law of which it can be said that they would have made no difference to the outcome do not matter.”

 

       The relevant legislative background

 

15.   Section 108(1) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended, provides that:

 

‘108(1) Industrial injuries benefits shall, in respect of a person who has been in employed earner’s employment, be payable in accordance with this section and sections 109 and 110 below in respect of—

 

(a) any prescribed disease, or

 

(b) any prescribed personal injury (other than an injury caused by accident arising out of and in the course of his employment),

 

which is a disease or injury due to the nature of that employment and which developed after 4th July 1948.’

 

16.   Diseases which are prescribed and the employments in connection with which they are prescribed are set out in the Schedule 1 of Part 1 of the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations (Northern Ireland) 1986, as amended.  Regulation 2(a) of the 1986 Regulations provides that:

 

‘2. For the purposes of Chapter V of Part II of the Act—

 

(a) subject to the following provisions of this regulation and to regulation 35(3), (5) and (6), each disease or injury set out in the first column of Part I of Schedule 1 to these regulations is prescribed in relation to all persons who have been employed on or after 5th July 1948 in employed earner’s employment in any occupation set against such disease or injury in the second column of the said Part;’

 

17.   In Part 1 of Schedule 1 of the 1986 Regulations, Prescribed Disease A11, and the occupations for which it is prescribed is described, as follows:

 

Prescribed disease or injury

Occupation

A11.(a) Intense blanching of the skin, with a sharp demarcation line between affected and nonaffected skin, where the blanching is cold-induced, episodic, occurs throughout the year and affects the skin of the distal with the middle and proximal phalanges, or distal with the middle phalanx (or in the case of a thumb the distal with the proximal phalanx), of—   (i) in the case of a person with 5 fingers (including thumb) on one hand, any 3 of those fingers, or   (ii) in the case of a person with only 4 such fingers, any 2 of those fingers, or   (iii) in the case of a person with less than 4 such fingers, any one of them or, as the case may be, the one remaining finger, where none of the person’s fingers was subject to any degree of cold-induced, episodic blanching of the skin prior to the person’s employment in an occupation described in the second column in relation to this paragraph, or     (b) significant, demonstrable reduction in both sensory perception and manipulative dexterity with continuous numbness or continuous tingling all present at the same time in the distal phalanx of any finger (including thumb) where none of the person’s fingers was subject to any degree of reduction in sensory perception, manipulative dexterity, numbness or tingling prior to the person’s employment in an occupation described in the second column in relation to this paragraph, where the symptoms in paragraph (a) or (b) were caused by vibration.

(a) The use of hand-held chain saws on wood; or   (b) the use of hand-held rotary tools in grinding or in the sanding or polishing of metal, or the holding of material being ground, or mental being sanded or polished, by rotary tools; or   (c) the use of hand-held percussive metalworking tools, or the holding of metal being worked upon by percussive tools, in riveting, caulking, chipping, hammering, fettling or swaging; or   (d) the use of hand-held powered percussive drills or hand-held powered percussive hammers in mining, quarrying, demolition, or on roads or footpaths, including road construction; or   (e) the holding of material being worked upon by pounding machines in shoe manufacture.

 

       The evidence before the decision-maker

 

18.   In his application form to II, the appellant, at page 3 of the relevant form, was asked to identify the disease which he thought he had.  His response to this was ‘I have Vibration White Finger’.  Further, the appellant was asked to identify the type of work which he thought had caused his disease.  His answer was ‘I cleaned the pan mixer and concrete hopper with a pneumatic kango.’  The appellant then gave details of his employer’s name and address and the dates of his employment.

 

19.   On 10 July 2009, the Department wrote to the appellant’s employer seeking further information, through the completion of a relevant form, from the employer in connection with the claim to II.  At question 7 at Part 2 of the form, the employer was asked whether the appellant’s occupation at any time involved any of certain activities.  The activities set out were those relating to Prescribed Disease A11, as set out above.  The employer’s answer to this question was ‘no’.  In addition, the employer supplied the following information:

 

‘(The claimant’s) main duties was a forklift driver about 5% of his time was spent cleaning the mixer and hopper.  Out of this 5% around 2% of that time would have been using a pneumatic kango.’

 

       On the basis of that evidence, the Department made the decision, dated 3 September 2009, that the appellant was not entitled to II as he was not employed in an occupation which is prescribed in respect of Prescribed Disease A11.

The evidence before the appeal tribunal

 

20.   The appeal tribunal had before it all of the evidence which was before the decision-maker of the Department.  In addition, the appeal tribunal had before it hospital notes and records and correspondence from the appellant, dated 21 October 2009, and dated as received in TAS on 26 October 2009.  In this correspondence, the appellant gave further details concerning his employment.

 

21.   The appellant decided that he did not wish to attend the appeal tribunal hearing to give additional oral evidence.

 

       The reasons for the appeal tribunal’s decision

 

22.   The reasons for the appeal tribunal’s decision were set out as follows:

 

‘(The claimant) did not attend the hearing but the Tribunal took into account the letter received from him on 26 October 2009.

 

(The claimant) was a production operative who drove a forklift for 7½ years and who had to clean the mixer and hopper.  He used a “Kango” for 20 minutes per day or longer if it was required to clean the mixer and hopper.

 

The Tribunal relied on the information received from his employer on 20 July 2009 which noted that the use of the “Kango” was for cleaning the pan mixer and hopper.

 

The Tribunal considered the schedule for prescribed disease A11, which was the medical condition claimed for.  The Tribunal found that none of the occupations listed applied to (the claimant).  In particular (d) was considered but his work was not in mining, quarrying, demolition or in roads or footpaths.  Therefore the Tribunal found that (the claimant) was not employed in a prescribed occupation and Disablement Benefit is not payable.’

 

       The submissions of the parties

 

23.   In the application for leave to appeal to the Social Security Commissioner, the appellant’s representative made reference to the statement of reasons for the appeal tribunal’s decision, and submitted that it was not clear that the appeal tribunal had considered paragraph (c) of the second column of Part I of Schedule 1 of the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations (Northern Ireland) 1986, as amended.  Further, the appellant’s representative submitted that:

 

‘In relation to paragraph (c) it is the Appellant’s position that as his work involved hammering the inside of a metal mixer and metal hopper with a hand-held percussive tool (the “Kango”), this paragraph should have been considered by the SSAT in reaching their determination and by virtue of a correct interpretation of this paragraph (c), the SSAT should have allowed the appeal and concluded that the Appellant was entitled to claim IIDB. The Decision of the Social Security Commissioners (for England & Wales) dated 31^st January 2005, reported [2005] UKSSCSC CI_207_2004, is supportive of the Appellant’s position in this regard,’

 

24.   As an aside the reference to the ‘SSAT’ should be to an ‘appeal tribunal’, as social security appeal tribunals or ‘SSATs’ were abolished with the introduction of the Social Security (Northern Ireland) Order 1998.  In any event, an appeal tribunal determining an appeal relating to a decision in connection with II, prior to 1998, would have been a medical appeal tribunal or ‘MAT’.  Finally, the decision referred to in the quotation from the submission of the appellant’s representative was not formally ‘reported’ in the bound volumes of decisions of the Social Security Commissioners.

 

25.   In written observations on the application for leave to appeal, Mr Hinton, for DMS, has responded that:

 

‘Paragraphs (c) and (d) of Schedule 1 Part 1 of the aforementioned regulations provides:

 

“Any occupation involving:

 

(c) the use of hand-held percussive metal-working tools, or the holding of metal being worked upon by percussive tools, in riveting, caulking, chipping, hammering, fettling or swaging.

 

(d) the use of hand-held powered percussive drills or hand-held powered percussive hammers in mining, quarrying, demolition, or on roads or footpaths,”

 

In CI/207/2004 Commissioner Williams considered the meaning of sub-paragraph (c).  In that case, the claimant worked in the bedding industry and his work involved driving fixings on to metal and wood bases.  Whilst there is no mention of the bedding industry within Schedule 1 Commissioner Williams allowed the appeal on the basis that the tool the appellant worked with fell within the definition described in paragraph (c) of Schedule 1 of the aforementioned regulations.  This decision was challenged and overturned by the Court of Appeal in Secretary of State for Work and Pensions v Westgate [2006] EWCA Civ 725 (R(I) 1/06).  The court held that the tool the appellant used in the course of his work in the bedding industry did not come within the definition of metal working tools as laid down in the statutory legislation.

 

The issue before the court was the meaning of a “metal working tool” within paragraph (c) of Schedule 1.  In paragraph 2 of the judgment the court accepted that there was no statutory definition of such a tool and it was left to tribunals to reach a factual conclusion with which no one can interfere so long as the conclusion comes within the bounds of the meaning of that description.  In paragraph 4 the court refers to paragraph 22 of Commissioner Williams’ decision where he states that the term metal working tool refers to a tool working with metal, not a metal tool for working with metal.  In paragraphs 5 and 6 Lord Justice Moses stated:

 

“5. ….A metal-working tool is a tool that works metal.  It is not sufficient or correct definition to describe it as a tool for working with metal, otherwise it was hardly necessary to qualify the definition of tools in sub-paragraph (c).  It would have been sufficient to refer to the tasks of riveting or hammering, and the other tasks identified.  Most hand held tools can be used to work with metal.  A screwdriver and hammer are obvious examples, but they are not metal-working tools.

 

6.  I find support from the rest of the identification which refers also to an occupation involving the holding of metal being worked upon by percussive tools.  This was designed clearly to enlarge entitlement to those not themselves using such a tool, but those holding metal which a tool of that description was working upon.  ….  The definition within sub-paragraph (c) above refers to is confined to tools which work metal.  Generally the working of metal will involve shaping metal.  ….”

 

In (the claimant’s) case the tribunal in its reasoning stated the following:

 

“(The claimant) was a production operative who drove a forklift for 7½  years and who had to clean the mixer and hopper.

 

The Tribunal relied on the information received from his employer on 20 July 2009 which noted that the use of the “Kango” was for cleaning the pan mixer and hopper.

 

The Tribunal considered the schedule for prescribed disease A11, which was the medical condition claimed for.  The Tribunal found that none of the occupations listed applied to (the claimant).  In particular (d) was considered but his work was not in mining, quarrying, demolition or in roads or footpaths.  Therefore the Tribunal found that (the claimant) was not employed in a prescribed occupation and Disablement Benefit is not payable.”

 

Whilst the tribunal refer to considering the Schedule and make specific reference to paragraph (d), I would submit that similar consideration and appropriate findings should have been made in relation to paragraph (c) and the tribunal’s failure to do so renders the decision erroneous in law.  Having said that I would submit that the use of the pneumatic hammer for cleaning a pan mixer and concrete hammer would not fall within definition of a metal working tool as held by the Court of Appeal in Secretary of State for Work and Pensions v Westgate [2006] EWCA Civ 725.  Therefore the outcome of the tribunal decision would effectively be the same in that (the claimant) would not be entitled to Disablement Benefit.’

 

       Analysis

 

26.   I am in agreement with Mr Hinton that the appeal tribunal should have given consideration to paragraph (c) of the second column of Part I of Schedule 1 of the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations (Northern Ireland) 1986, as amended, and should have made specific findings in connection with the potential application of that paragraph, in line with the guidance given by the Court of Appeal for England and Wales in Secretary of State for Work and Pensions v Westgate [2006] EWCA Civ 725.  The failure of the appeal tribunal to give such consideration, to assess the relevant evidence and to make specific findings, renders its decision as being in error of law.

 

27.   I am not in agreement, however, with his further submission that the ‘… use of the pneumatic hammer for cleaning a pan mixer and concrete hammer would not fall within definition of a metal working tool’ and that, accordingly, the outcome decision, in connection with this application for leave to appeal to the Social Security Commissioner, should be the same as that found by the appeal tribunal, namely that the appellant was not entitled to II as he was not employed in an occupation which is prescribed in respect of Prescribed Disease A11.  It is clear that for that conclusion to be arrived at, there has to be clear findings in fact as to the nature of the work which the appellant undertook in connection with the use of the “Kango” hammer for the purpose of cleaning the pan mixer and hopper in line with the guidance given by the Court of Appeal for England and Wales in Secretary of State for Work and Pensions v Westgate [2006] EWCA Civ 725.  That further fact-finding will have to be undertaken by another appeal tribunal.

 

       Disposal

 

28.   The decision of the appeal tribunal dated 26 November 2009 is in error of law.  Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against.

 

29.   I direct that the parties to the proceedings and the newly constituted appeal tribunal take into account the following:

 

(i)     the decision under appeal is a decision of the Department, dated 3 September 2009, in which a decision-maker of the Department decided that the appellant was not entitled to II;

 

(ii)    the Department is directed to prepare a further submission which considers the possible application of paragraph (c) of the second column of Part I of Schedule 1 of the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations (Northern Ireland) 1986, as amended, and assesses the relevant evidence in connection with the potential application of that paragraph;

 

(iii)    it will be for both parties to the proceedings to make submissions, and adduce evidence in support of those submissions, on all of the issues relevant to the appeal.  In connection with this, the appellant will wish to give serious consideration to attending the further appeal tribunal hearing to give oral evidence; and

 

(iv)   it will be for the appeal tribunal to consider the submissions made by the parties to the proceedings on these issues, and any evidence adduced in support of them, and then to make its determination, in light of all that is before it.  The appeal tribunal, in considering the possible application of paragraph (c) of the second column of Part I of Schedule 1 of the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations (Northern Ireland) 1986, as amended, will wish to have regard to what was said by the Court of Appeal for England and Wales in Secretary of State for Work and Pensions v Westgate [2006] EWCA Civ 725.

 

 

(signed)  K Mullan

 

Commissioner

 

 

 

9 February 2011