Northern Ireland - Social Security and Child Support Commissioners' Decisions

JMcK-v-Department for Social Development (II) [2014] NICom 45

Decision No: C3/13-14(II)

 

 

 

 

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

 

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

 

 

INDUSTRIAL INJURIES DISABLEMENT BENEFIT

 

 

Appeal to a Social Security Commissioner

on a question of law from a Tribunal's decision

dated 23 April 2013

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1. The decision of the appeal tribunal dated 23 April 2013 is not in error of law. Accordingly, the appeal to the Social Security Commissioner does not succeed. The decision of the appeal tribunal that the appellant is not entitled to industrial injuries disablement benefit (IIDB) from and including 23 September 1976 is confirmed.

 

2. I set out below my reasons why I have concluded that the decision of the appeal tribunal is not in error of law. At this stage, however, I would make the following comments. This decision will come as a disappointment to the appellant. Throughout the proceedings before me the appellant has been articulate and courteous and has presented cogent and well-structured arguments and submissions. It is axiomatic that the issues arising in this appeal are of personal significance to the appellant and my decision has an individual impact on him in that he does not gain the entitlement to IIDB which he seeks. He has emphasised that he has been involved in a significant number of incidents during which he was subject to acoustic trauma and is concerned as to why he does not, accordingly, have an entitlement to IIDB. In addition, however, I have been impressed by the appellant’s motivation to highlight what he perceives to be inadequacies in the manner in which the Department approaches the assessment of disablement arising from hearing loss consequent on an industrial accident for the purposes of the IIDB scheme. As noted below, I acknowledge that many of the appellant’s concerns as to how his claims to IIDB were processed by the Department in the initial stages are legitimate. Further, I agree that the Department’s general approach to the key issue of the assessment of disablement in hearing loss accident cases is, at the moment, problematic. It is also important to note that it has taken a considerable length of time for the proceedings in connection with the appellant’s claims to IIDB to be concluded. That was due, in part, to the volume of appeals and subsequent appeals. The delay was also added to, however, by an initial approach to the determination of those claims by the Department which was uncertain.

 

3. Moreover, I am of the view that it is incumbent on the Department to undertake a fundamental review of the mechanics and processes of determining claims to IIDB in such cases. In the appeal submission which was prepared for the appellant’s appeals before the appeal tribunal in the instant case it was noted, at paragraph 23, that there had been an increase in the number of claims to IIDB based on hearing loss resultant on incidents parallel to those to which the appellant was exposed in the instant case. If that is the case then the requirement to have in place a structured, coherent and practical scheme for the administration and determination of such claims takes on a greater imperative. That process will have to recognise the discrete characteristics of such cases. The implementation of such a scheme will ensure that future claimants will not have to endure the frustrations and perplexity experienced by the appellant in the instant case. I cannot, of course, be prescriptive as to the manner in which the Department processes and determines claims to social security benefits. It seems to me, however, that in devising a separate scheme for the determining of claims in hearing loss accident cases, the Department could build on the excellent work which was undertaken by the departmental officer at the secondary stage of the determination of the appellant’s claims in the instant case. It seems to me that, as a minimum, documentation specific to hearing loss accident claims will have to be developed and specific instructions and guidance for the Department’s medical advisers (DMA) will have to be devised. Further close liaison between decision-makers may also be required to ensure clarity of objective and consistency of approach.

 

General background

 

4. In his initial written observations on the appeal, Mr Hinton set out the following general background to this and a large number of related appeals:

 

‘(The claimant) submitted an initial claim form on 29 April 2010 and this outlined a series of events that took place during his career as a police officer which resulted in permanent damage to his hearing. The Department then telephoned (the claimant) and advised him that where a condition had developed over a period of time as a result of numerous events this would be classed as “injury by process” and the claim would not be allowed. (The claimant) was advised that his claim would have a greater chance of success if he could narrow it down to two or three significant events that caused the development of hearing loss. As a result (the claimant) submitted claims for 2 incidents, one on 3 July 1980 and the other on 2 October 1981.

 

However, the advice given by the Department to (the claimant) at that time was incorrect. Injury that is caused by a series of separate and identifiable incidents can constitute an accident. Consequently in addition to the 2 accidents already claimed for (the claimant) was then invited to claim for other incidents that occurred over the course of his career. As a result (the claimant) submitted claims for 24 separate incidents as well as the 2 earlier incidents making 26 in total. These incidents were accepted by the Department as separate identifiable incidents and allowed as industrial accidents. (The claimant) was subsequently examined by the Department’s medical advisers and assessed as no loss of faculty in 25 of these accidents. The only accident that attracted a percentage assessment was that relating to 3 July 1980 which attracted an assessment of 2%. On 6 July 2011 (the claimant) confirmed that he wished to appeal against the decision to disallow disablement benefit in respect of all 26 accidents.’

 

The factual background specific to this appeal

 

5. In his initial written observations on the appeal, Mr Hinton set out the following factual background specific to this appeal:

 

‘This (appeal) relates to an accident dated 20 September 1976. (The claimant) stated that he attended a weapons training course at Ballykelly involving pistols and sub-machine guns. No ear protection was provided. This lasted all day and his hearing was affected as a result. The medical adviser in an examination dated 14 June 2011 stated that (the claimant) had no loss of faculty in respect of this accident.’

 

Proceedings before the appeal tribunal

 

6. The appeal tribunal hearing took place on 23 April 2013 when this and the appellant’s other appeals were heard and determined by the appeal tribunal. The appellant was present and was not represented. The Department was represented by a Departmental presenting officer.

 

7. The appeal tribunal disallowed the appeal. The appeal tribunal issued a composite set of reasons which included a general assessment of the common issues which arose in each of the appeals and a specific statement relating to the factual circumstances of each individual appeal. The reasons which relate to the appeal tribunal’s assessment of the common issues are attached to this decision as an Appendix. In relation to the specific accident on 20 September 1976, the appeal tribunal concluded:

 

‘Accident 20.09.1976

 

The general issues for this accident are on 03.07.1980. The general issues relating to this industrial accident are as set out in the accident of 03.07.1980. These accidents took place on the above dates in Ballykelly. (The claimant) attended weapons training courses using pistols and submachine guns. There was no ear protection provided. (The claimant’s) hearing was affected as a result of attendance at these courses. There was no evidence of any ongoing effect on (the claimant’s) hearing as a result of this exposure. In particular the Tribunal noted that (the claimant) did not seek any medical assistance with hearing difficulties until 1991 when he approached his doctor who referred him to Mr P.

 

The Tribunal accepted that (the claimant) was exposed to loud noise during these and other incidents between 20.09.1976 to 11.10.1983.’

 

8. On 22 October 2013 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service (TAS). On 24 October 2013 the application for leave to appeal was allowed by the legally qualified panel member (LQPM) but without the LQPM specifying a specific point of law arising.

 

Proceedings before the Social Security Commissioner

 

9. On 5 November 2013 the appeal was received in the Office of the Social Security Commissioners (OSSC). On 3 December 2013 written observations on the appeal were sought from Decision Making Services (DMS) and these were received on 20 December 2013. In these initial written observations, Mr Hinton, for DMS, opposed the appeal on the grounds set out by the appellant. Written observations were shared with the appellant on 7 January 2014. On 12 January 2014 written observations in reply were received from the appellant which were shared with Mr Hinton on 14 January 2014.

 

10. On 3 March 2014 I directed an oral hearing of the appeal. The oral hearing took place on 16 April 2014. The appellant was present and represented himself. The Department was represented by Mr Hinton. Gratitude is extended to both the appellant and Mr Hinton for their detailed and constructive observations, comments and suggestions.

 

11. At the oral hearing Mr Hinton agreed to forward a further written submission on an issue which arose during the course of the oral hearing. A further written submission was received in OSSC on 17 April 2014 and was shared with the appellant on 18 April 2014. On 26 April 2014 further observations were received from the appellant which were shared with Mr Hinton on 29 April 2014.

 

Errors of law

 

12. 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. What is an error of law?

 

13. 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.”

 

14. It is also important to note the further comments of the Tribunal of Commissioners at paragraph 31 of their decision in R(I) 2/06 concerning the key differences between an error of law and a dispute on a question of fact, in cases such as the present one, where the challenge is to the percentage of functional disablement and the consequent role of the Social Security Commissioners:

 

‘31. The difference between an error of law in one of the above senses and a disputed judgment of degree on a question of fact is particularly important to bear in mind in appeals such as the present, where the decisions complained of concern only the percentage of functional disablement shown to be suffered by a claimant on the evidence in his or her individual case. That is of course essentially a factual and medical assessment for the tribunal hearing and seeing that evidence to make; not a matter for us as an appellate body concerned with questions of law to offer or impose a substituted view of our own. We can only interfere if it is shown that the tribunal’s decision is in some way erroneous in point of law.’

 

The relevant legislative background

 

15. It is important to set out the legislative background relevant to entitlement to IIDB.

 

Section 94(1) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended, provides that:

 

‘Industrial injuries benefit shall be payable where an employed earner suffers personal injury caused … by accident arising out of and in the course of his employment …’

 

Section 94(2) provides that industrial injuries benefit consists of, inter alia disablement benefit payable in accordance with sections 103 of the Act.

 

Section 103(1) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended, provides that:

 

‘Subject to the provisions of this section, an employed earner shall be entitled to disablement pension if he suffers as the result of the relevant accident from loss of physical or mental faculty such that the assessed extent of the resulting disablement amounts to not less than 14 per cent. or, on a claim made before 19th November 1986, 20 per cent.’

 

Section 103(5) provides that:

 

‘(5) In this Part of this Act “assessed”, in relation to the extent of any disablement, means assessed in accordance with Schedule 6 to this Act; and for the purposes of that Schedule there shall be taken to be no relevant loss of faculty when the extent of the resulting disablement, if so assessed, would not amount to 1 per cent.’

 

The remainder of section 103 and Schedule 6 to the Social Security Contributions and Benefits (Northern Ireland) Act 1992 makes additional provisions for the assessment of disablement for the purposes of entitlement to disablement pension.

 

Schedule 6 to the 1992 Act, provides (so far as relevant):

‘General provisions as to method of assessment

1. … the extent of disablement shall be assessed, by reference to the disabilities incurred by the claimant as a result of the relevant loss of faculty, in accordance with the following general principles –

(a) except as provided in paragraphs (b) to (d) below, the disabilities to be taken into account shall be all disabilities so incurred (whether or not involving loss of earning power or additional expense) to which the claimant may be expected, having regard to his physical and mental condition at the date of the assessment, to be subject … as compared with a person of the same age and sex whose physical and mental condition is normal;

(b) … regulations may make provision as to the extent (if any) to which any disabilities are to be taken into account where they are disabilities which, though resulting from the relevant loss of faculty, also result, or without the relevant accident might have been expected to result, from a cause other than the relevant accident;

(c) the assessment shall be made without reference to the particular circumstances of the claimant other than age, sex, and physical and mental condition;

(d) the disabilities resulting from such loss of faculty as may be prescribed shall be taken as amounting to 100 per cent disablement and other disabilities shall be assessed accordingly.’

Regulation 11(6) and (8) of the Social Security (General Benefit) Regulations (Northern Ireland) 1984 provide:

‘(6) Where the sole injury which a claimant suffers as a result of the relevant accident is one specified in column 1 of Schedule 2 to these regulations, … the loss of faculty suffered by the claimant as a result of that injury shall be treated for the purposes of … the Act as resulting in the degree of disablement set against such injury in column 2 of the said Schedule 2 subject to such increase or reduction of that degree of disablement as may be reasonable in the circumstances of the case where, having regard to the provisions of [Schedule 8 to the 1992 Act] and to paragraphs (1) to (5) of this regulation, that degree of disablement does not provide a reasonable assessment of the extent of disablement resulting from the relevant loss of faculty.

…

(8) For the purposes of assessing, in accordance with the provisions of [Schedule 8 to the 1992 Act], the extent of disablement resulting from the relevant injury in any case which does not fall to be determined under paragraph (6) … , the Department or, as the case may be, an appeal tribunal may have such regard as may be appropriate to the prescribed degrees of disablement set against the injuries specified in the said Schedule 2.’

 

In Schedule 2, item 6 is as follows:

‘6. Absolute deafness………………………………………. 100’

 

Accordingly, the prescribed degree of disablement for absolute deafness is 100%.

The proper approach to the assessment of disablement where the degree is not prescribed

 

16. Detailed guidance on the proper approach to the assessment of disablement where the degree of disablement is not prescribed in the legislation was provided in R(I) 2/06. At paragraphs 44 to 46, the Commissioners stated:

 

‘44. In an exercise of judgment and evaluation such as is involved in the assessment in percentage terms of an individual claimant’s degree of functional disablement, there is inevitably a band within which an assessment would be reasonable, and the reasons why a particular percentage has been arrived at rather than a point or two higher or lower may be impossible to state with exact precision. As on all questions of valuation or the assessment of any amount, they may be difficult to explain otherwise than by making clear the factors that have or have not been taken into account, and confirming that the result reflects the application of the tribunal’s own judgment and expertise to those factors and the evidence (see Murrell v Secretary of State for Social Services, cited above; and R(I) 30/61 at paragraph 8).

 

45. We do not think the practical requirements for tribunals dealing with appeals in this area can be better stated then they were in case CI/1802/2001 by Mr Deputy Commissioner Warren, when he said (paragraphs 7 to 9):

 

“7. Vibration white finger is not one of those conditions for which there is a prescribed degree of disablement in Schedule 2 of the General Benefit Regulations. Those Regulations therefore state only that the tribunal ‘may have such regard as may be appropriate to the prescribed degrees of disablement’ when making its assessment. This indicates the very broad discretion which individual tribunals have in this type of case. In many cases it is simply not possible for a tribunal to give precise reasons for the conclusion which it has reached.

 

8. In my judgment, however, as a minimum, the claimant and the Secretary of State are entitled to know the factual basis upon which the assessment has been made; in other words what disabilities were taken into account by the tribunal in concluding that a particular percentage disablement was appropriate.

 

9. This can often be simply expressed. In many cases it will be enough to say that the evidence given by the claimant about the effect of a particular accident or disease on his or her daily life has been accepted. In some cases, where the claimant’s evidence is for some reason found to be unreliable, it may be that the tribunal will state that it felt able to accept only those disabilities which in its expert opinion were likely to flow from problems disclosed on clinical examination. Other cases may need more detail. But if it is not possible to discern the material on which the assessment is based, then the tribunal’s statement of reasons is likely to be inadequate.”

 

46. These comments, relating directly as they do to the present ground of appeal on reasons for specific percentage assessments, are also in our judgment entirely consistent with the principles stated by the Court of Appeal in the more general context of the giving of reasons by tribunals (Eagil Trust Co Ltd v Pigott Brown [1985] 3 All ER 119 especially at page 122 per Griffiths LJ; English v Emery Reimbold and Strick Ltd [2002] EWCA Civ 605, [2002] 1 WLR 2409 particularly at [19] per Lord Phillips MR; and R (Iran) supra particularly at [13]–[16]). The Court of Appeal have stressed in these cases that elaborate or lengthy reasons are not necessary, as long as the tribunal identifies and records those matters that were critical to its decision, to enable the parties and others to understand the tribunal’s thought processes when it is making its material findings.’

 

17. Later, at paragraphs 68 to 71, and paragraph 78, the Commissioners added:

 

‘68. Commissioners have always regarded it as part of their function to give guidance where needed for the assistance of tribunals and departmental decision-makers on the relevant principles of law to be applied in this specialised jurisdiction: this is an area where certainty and consistency of approach and an orderly development of the law are of particular importance given the complex nature of the legislation and the very large number of individual cases potentially involved. However it is a function to be exercised cautiously, particularly in an instance such as the present where the questions of assessment of an individual’s percentage level of functional disablement are not primarily matters of legal interpretation at all, but of factual judgment – including judgment on medical matters – entrusted by the legislation to the specialist tribunals best qualified to decide them. There is a danger in misinterpreting the observations of individual Commissioners on the facts of such cases as laying down additional rules of law where only helpful guidance on the fact-finding process was intended. There was some evidence of that in the way the notices of appeal before us were formulated. What matters is not whether express reference is made to some such guidance, but whether the substance of the tribunal’s decision, and its statement of the factors taken into account in reaching it, demonstrates any error of law as outlined above.

 

69. The relevant statutory requirements are set out above (see paragraphs 5 to 10). The effect of those provisions insofar as vibration white finger is concerned – there being no special provisions in the prescribed diseases regulations for any special method of assessment of the disablement resulting from prescribed disease A11 – is that set out by Mr Deputy Commissioner Warren in the passage we have already quoted (see paragraph 45). In short, the assessment of the degree of disablement for benefit purposes in such cases is at large, for the tribunal to determine on the facts of the individual case. It must make a reasonable assessment of the extent of disablement resulting from the relevant loss of faculty identified as attributable to the prescribed disease.

 

70. The only specific obligation placed on the tribunal in that context is to make the assessment in accordance with the general principles set out in paragraph 1 of Schedule 6 to the 1992 Act (see paragraph 8 above). In doing so it must take into account all disabilities incurred as a result of the relevant loss of faculty to which the claimant may be expected to be subject during the period taken into account by the assessment; and taking as a starting point the mandatory evaluation of the total loss of both hands, and the other very severe conditions so prescribed in the Regulations, as amounting to a 100 per cent level of functional disablement, it must assess other disabilities “accordingly”. It “may have such regard as may be appropriate” to the prescribed degrees of disablement for which set percentages less than 100 are prescribed in Schedule 2 to the General Benefit Regulations; but is not bound to do so, if it does not consider them of assistance in making a reasonable assessment of the actual disablement in the case before it.

 

71. Subject to that, a tribunal is not obliged to try and force the disablement with which it is concerned into an imaginary position on the scale set out in the regulations, or on any other scale; and it would in our judgment be contrary to the intent of the legislation to attempt to construct such a scale, or to set recommended or suggested percentage levels of assessment of disability from prescribed disease A11 or any other prescribed disease where the legislation itself does not do so. Within the broad requirements of the legislation, these matters are best left to the tribunals qualified and experienced in dealing with them; and as with all matters of factual judgment on questions of degree, the mere fact that another tribunal might as a matter of judgment and professional opinion reach a different figure on consideration of the facts of a similar case, or even the same case, does not begin to demonstrate that either is in error of law.

 

…

 

78. … In this area of the benefits regime (as with many others: see, eg, Secretary of State for Work and Pensions v Moyna [2003] UKHL 44, [2003] 1 WLR 1929 (also reported as R(DLA) 7/03)) there is a considerable discretion left to decision-makers (and, in their turn, appeal tribunals) who are charged by statute to make such decisions. It is however hoped that our comments will assist those concerned with such claims and decisions, by identifying the correct approach to such decisions in this area and also to an extent matters which should (and matters which should not or need not) be taken into account in exercising that judgment.’

 

18. Although these comments were made in the context of the assessment of disablement for the prescribed disease A11, the principles are equally applicable to the assessment of disablement arising from an accident where the degree of disablement is not prescribed – see the comments of the authors of Volume 1 of Social Security Legislation 2013/2014 at paragraphs 1.587 to 1.589 and 10.28.

 

19. It is also important to note that while item 6 of Schedule 2 to the Social Security (General Benefit) Regulations (Northern Ireland) 1984 does provide for a prescribed degree of assessment in connection with deafness the prescribed degree is 100% for absolute deafness. Accordingly, where the hearing loss does not amount to ‘absolute deafness’ then assessment of the degree of disablement should be undertaken in line with the guidance provided in R(I)2/06.

 

The decision-making process and the role of the Department’s Medical Officers

 

20. In CI/1307/1999, at paragraphs 13 and 14, the Social Security Commissioner in Great Britain made the following comments about the decision-making process in IIDB cases and the role of the DMA’s:

 

‘13 The medical profession was centrally placed in the decision making process for disablement claims before 5 July 1999. A medical appeal tribunal would be constituted with a physician member and a surgeon member. In some cases – and this was one – one or both of the medical members was of the specialism relevant to the claim before it. It decided appeals from other medical experts, the medical officers who formed the adjudicating medical authority or medical board. There were therefore decisions by tribunals with a majority of medical members from decisions of medical officers. Neither the Commissioner nor the Secretary of State could interfere with a decision of a medical officer or a medical appeal tribunal. All that either could do was to refer a decision considered to be faulty or to need reviewing to a medical appeal tribunal. Only if the tribunal agreed could matters proceed.

 

14 The Social Security Act 1998 changes the nature of the decision-making in disablement benefit cases fundamentally. The initial decision is on every occasion the decision of the Secretary of State. The views of medical officers have been relegated to the status of advice. The tribunal may, and often does, consist of one medical member and one legal member, giving the lawyer the casting vote, and removing what might be termed the “jury” function of medical members working by common consent. The Commissioner has the power also to take a decision in place of the tribunal, and the Secretary of State has wide powers to revise and supersede decisions of tribunals with medical members. The cumulative effect of these changes is to shift the role of the medical profession from that of central decision maker to that of adviser or provider of evidence.’

 

21. The emphases in this quotation are my own. The Social Security Act 1998 was replicated in Northern Ireland through the Social Security (Northern Ireland) Order 1998. The principles set out by the Commissioner in CI/1307/1999 are equally as applicable to the present decision-making process in Northern Ireland with respect to IIDB subject to the references to the Secretary of State being to the Department. Further, in Northern Ireland it is usual for the appeal tribunal to consist of a legal member sitting with two medically qualified panel members and the composition of the appeal tribunal panel as such, in the instant case.

 

The submissions of the parties

 

22. In his original application for leave to appeal which was before the LQPM, the appellant summarised his principal grounds for seeking leave to appeal as follows:

 

‘Audio graph machine not calibrated and no specific and direct evidence to the contrary submitted by the social security agency to the tribunal.

 

Machine operator and doctor in charge of unit disagree with machine results lending weight to the contention that the machine has not been operating correctly.

 

Record of audio graph totally flawed by the inclusion of information which allegedly occurred after the form was signed adding further weight to the doubts in respect of the accuracy of the machine in question. In addition, an apparent reluctance by the machine operator to provide any statement in respect of the relevant machine.

 

Statement from Doctor [A] about matters he has no direct knowledge of, and no specific information about the machine in question.

 

The use of a standard included in a chart which has no weight in law and was designed for an entirely different purpose.

 

The use of only parts of the disputed audio graph chart, when no law exists in injury and accident cases, to use only these parts of the audio graph.’

 

23. In the appeal which was received in OSSC the appellant included a copy of the original application for leave to appeal but also added that:

 

‘The Appeal Tribunal decisions mirrored exactly the decisions of the Social Security Agency (Industrial Injuries) and I would contend that the reasons for this was by referring to and depending on the documents I have objected to, including the chart belonging to the legislation for loss of hearing by process i.e. a prescribed disease.

 

The Appeal Panel has found no loss of faculty was occasioned in respect of the 25 accidents in respect noise from the use of firearms. They did, of course, allocate a 2% loss of faculty in respect of the accident involving an explosion.

 

The reasons cited for allocating no loss of faculty to the firearms accidents was ‘no evidence of any on-going affect to my hearing as a result of the accidents in question.’ This is clearly a perverse and irrational finding. My evidence is, and was, that it was not the culture of my employment at this time to complain.

 

I did consult my own doctor and a specialist Mr P about my loss of hearing. Mr P was of the opinion that my loss of hearing was due to my exposure to noise from the use of firearms. He quantified this in an audio graph which showed quite clearly the signature of noise exposure.

 

The Appeal Panel had no way of separating these accidents from the accident in respect of explosion. The evidence in all the accidents is very much the same.

 

I contend that the Appeal Panel has given weight to immaterial matters in reaching their decisions and the findings are perverse. The evidence from Mr P proves that there must have been loss of faculty as a result of the use of firearms. This is later added to by Mr D, another highly respected specialist. For the Appeal Panel to ignore this evidence is clearly perverse and an indication that all the Appeal Panel decisions have been adjusted to mirror the Social Security decisions and support the use of a chart which has no bearing in my claims.’

 

24. In his initial written observations on the application for leave to appeal, Mr Hinton replied to each of the appellant’s submissions as follows:

 

(i)        The appeal tribunal did not ignore the reports from the two specialists which the appellant had submitted in connection with his claims to IIDB. Rather the statement of reasons for the appeal tribunal decision confirms that the appeal tribunal took the reports into account in arriving at its conclusions and noted that the two reports were before the Department’s Medical Advisers.

 

The appeal tribunal had not given weight to immaterial matters and its conclusions and findings could not be said to be perverse. The appeal tribunal had taken evidence from the appellant concerning his hearing loss, had set out a detailed background to the case, and had assessed a variety of medical reports including the reports undertaken by the Department’s Medical Advisers. The appeal tribunal had explained why it found the reports of the Medical Advisers to be reliable and had set out why it could not equate the later onset of tinnitus to the accidents claimed for, relying, as it was entitled to do so, on guidance from the Industrial Injuries Advisory Council (IIAC). The appeal tribunal had also explained why it had concluded that the appeal tribunal was entitled to rely on internal guidance tables.

 

(ii)       There had been no error in law in respect of the ground concerning the calibration of audiometry machine. When this matter had been raised by the appellant the Department had made enquiries with the relevant Audiology Department which had clarified the proper date of calibration.

 

It was accepted that the readings of the outcome of the audiometry test undertaken by the appellant had been recorded on a form (‘Form BI161(OD)A’) which was a form which was utilised in the prescribed disease cases involving occupational deafness. It was also accepted that the Department did not have a specific form available to record hearing loss which results from an industrial accident. There was nothing, however, contained in the relevant legislative provisions, to prevent the Department from using the occupational deafness prescribed disease form in the manner in which it did. Reference was made to reports from the IIAC which had set out general principles of assessment of disablement across the IIDB schemes.

 

The Department’s Medical Advisers had not used the relevant form as the sole source of evidence in arriving at its conclusions. Further the appeal tribunal had set out the basis upon which it had assessed the use of Departmental internal guidance tables stating that while such tables were for guidance only it was entitled to take them into account as part of the decision-making process in assessing the extent of disablement. The appeal tribunal had qualified this by stating that ‘… this could not be used exclusively but in conjunction with all of the available evidence.’

 

(iii)      Dr A had not given evidence about matters outside of his own knowledge. The appellant had queried the date of calibration of the relevant audiometry machine. Dr A had obtained information from the audiologist who had carried out the test and passed this information on. The appeal tribunal had accepted the written evidence of Dr A which it was entitled to do. Accordingly, the appeal tribunal had not erred as had been submitted.

 

(iv)      The significance of using 1, 2 and 3kHz readings had been addressed by the IIAC in its report of 2002 ‘Occupational Deafness’ and, in particular, paragraphs 45 to 47 and paragraph 50 of that report.

 

25. The appellant and Mr Hinton expanded on their initial submissions and responses during the course of the oral hearing of the appeal.

 

Analysis

 

26. I begin with the appellant’s clearly stated concerns about the decision-making process in the Department giving rise to the decisions which were under appeal to the appeal tribunal below. In his lengthy correspondence with the Department, in his letter of appeal, in his subsequent correspondence with the Department prior to the oral hearing of the appeal, in his oral evidence to the appeal tribunal and in his written and oral submissions in the proceedings before the Social Security Commissioner, the appellant has set out with clarity and precision his unease with the validity of the decision-making process in the Department.

 

27. The starting point for his concerns was the initial claim process and the Department’s primary response to receipt of a claim from him seeking entitlement to IIDB for disablement resulting from hearing loss arising from an industrial accident. At paragraph 8 of the original appeal submission, and after a summary of the initial response in the Department, the problems which arose were recognised and acknowledged by the Departmental Officer who has dealt with the appellant’s claims throughout the preliminary decision-making process, as follows:

 

‘(NB The view in Industrial Injuries Branch at the time that (the claimant) made his claim, that in cases such as (the claimant’s) where hearing loss had developed over a number of years, such injury should be regarded as having developed as a result of a process, was incorrect. Although it is necessary, in claims for IIDB, to draw a distinction between injury by accident and injury by process, as injury by process does not come within the scope of the IIDB Scheme [unless the injury is a prescribed disease], an accident need not necessarily comprise just one incident. Injury that is caused by a series of separate and identifiable incidents – as opposed to injury that develops insidiously over a period of time due, for example, to activities that are going on substantially from day to day and hour to hour – can constitute injury by accident. Consequently the advice that was given to (the claimant) in the telephone call on 18/05/10 was incorrect. [(The claimant) was subsequently, as shown later in this Section, advised of the correct position and the Department apologised for misadvising him – albeit that the advice that he was given was thought at the time to be correct and was thought to be in his best interests.] Even if the information that (the claimant) had been given in the phone call had been correct, the claim forms that were sent to (the claimant) were the wrong forms – they were forms for claiming IIDB for the prescribed disease Occupational Deafness, when they should have been forms for claiming IIDB for industrial accidents. (The claimant) could not successfully claim IIDB for Occupational Deafness, as (a) his employment in the police did not constitute a prescribed occupation in relation to occupational deafness, and (b) even if it could have been regarded as being a prescribed occupation, his employment with the Police ended in 2001 and consequently his claim would have been outside the absolute time for claiming of 5 years from the date that he was last employed in a prescribed occupation.)’

 

28. Subsequently, on 30 May 2010, the appellant wrote to the Department, acknowledging that he had received incorrect IIDB claim forms and stating that he recognised that he had no entitlement to IIDB for occupational deafness. The appellant also attached two new claim forms to IIDB arising from an accident at work which, on his own initiative, he had downloaded from the internet. It is easy to recognise that even at this early stage the appellant was perplexed at the Departmental response to his claims. On the correct claim forms, the appellant identified two incidents which had occurred on 3 July 1980 and 2 October 1981.

 

29. The appellant’s puzzlement did not end there. After the Departmental decision of 10 July 2010 that decided that the two incidents identified by the appellant were industrial accidents and recorded declarations to that effect, the appellant was advised that medical examinations would be arranged to assess the extent of any disablement resulting from the accidents.

 

30. In the original appeal submission, it is noted that on 30 August 2010 the appellant attended for an audiometric test. The report of the officer who conducted the test and the report of an Otologist (‘Dr A’) are dated 31 August 2010. Nothing turns on that, however. At the oral hearing of the appeal before me, the appellant gave oral evidence concerning the circumstances in which the audiometric test took place. The test took place in the Audiology Department of the Royal Victoria Hospital. The appellant was, initially, directed to the main Audiology reception where, he submitted, it appeared that staff were surprised to see him. Subsequently he was directed, via what he described as ‘backstairs’, to another room where there was a single ‘audiograph’ machine. There were no other members of the public about and no other members of medical staff apart from the lady who was to conduct the audiometric examination. He formed the impression that this was little used and a slightly neglected part of the Audiology Department. The test was completed and he complied with all requests. He went back downstairs and waited. He was subsequently spoken to by Dr A in his office with the conversation lasting less than five minutes. Dr A may have completed a form.

 

31. As Document 10 in the original appeal submission is a copy of Form BI 161 (OD) A. In the further analysis which is set out below I will comment on the use to which the contents of this form was made in the decision-making process giving rise to the decisions under appeal and by the appeal tribunal in determining the appeals which were before it. At this stage, however, it is apposite to address certain concerns which the appellant had with this form.

 

32. The first disquiet was that the form was designed to record the results of audiometric tests in connection with claims to IIDB arising from the prescribed disease of occupational deafness. The Department has been candid in its response to this initial concern. At paragraph 14 of the original appeal submission, the Departmental Officer recorded:

 

‘The forms completed by the testing officer and the Otologist are designed for claims for IIDB for the prescribed disease occupational deafness. Although (the claimant’s) claims were for industrial accidents rather than a prescribed disease, there are no dedicated forms designed for arranging hearing tests for the purposes of claims for industrial accidents and consequently the occupational deafness forms were used.’

 

33. The Department’s further response to this concern, as set out by the Departmental Officer in the original appeal submission, and in correspondence dated 4 December 2012 which post-dated the decisions under appeal but which pre-dated the appeal tribunal hearing, and maintained by Mr Hinton in the present proceedings, was that there was nothing to prevent a form which had been designed to record the results of audiometric testing for the purposes of IIDB occupational deafness claims, also being utilised for recording results of audiometric testing for the assessment of disablement resulting from hearing loss following an industrial accident. Reference was made to two reports of the IIAC to support this submission. Further, Mr Hinton submitted that the evidence in the relevant form completed on 31 August 2010 was not the only evidence relied on by the DMA, the decision-maker and the appeal tribunal. I set out in more detail below my conclusions as to whether the Department’s submissions on this issue are correct.

 

34. The appellant’s second initial concern with Form BI 161 (OD) A was with the process whereby the record of the results of the audiometric test was transposed onto the form itself. In correspondence dated 28 July 2011 and received in the Department on 1 August 2011, the appellant makes the following requests:

 

‘On 31.8.2010 the agency completed an audiogram with me at Royal Victoria hospital. I would like to know if the audiogram record was self-recorded by the machine or was the recording of results done by the testing officer. If the recording was done by the machine could I have a copy of the actual mechanical records.

 

On the copy of Form BI 161 (OD) A there is a copy of my audiogram results. Is this a pre-printed form with the results being transferred or are the results photocopied to this form. If transferred by hand can you confirm that this was done by the testing officer or by Dr A.’

 

35. In the original appeal submission, the Departmental Officer recorded the following, at paragraph 50:

 

‘On 07/09/11 contact was made by phone with JT (the testing officer who completed form BI 161 (OD) A in respect of the hearing test that (the claimant) took on 31/08/10) in the Audiology Department of the Royal Victoria Hospital (earlier attempts having been unsuccessful). Ms T was asked if she could provide the information requested by (the claimant) at points 1 and 2 of his letter of 28/07/11. Ms T explained that there would be no mechanical record of the results and that she would have recorded them by hand … Ms T was also asked if she could confirm this information in writing if a request was put in writing and faxed to her. Ms T asked that Mr A’s secretary be approached about any such request and provided a phone number for her. However phone contact was subsequently made with Mr A who confirmed that a written response would be provided if the information that (the claimant) had asked for was faxed to their fax number. A letter that had been prepared on 07/09/11 was subsequently faxed to the number provided by Mr A.’

 

36. Copies of the relevant correspondence were attached to the original appeal submission as documents 118, 119 and 119A.

 

37. On 13 September 2011 the Departmental Officer wrote to the appellant giving details of the telephone conversation with Ms T and Dr A in relation to his questions about the actual recording of the results on Form BI 161 (OD) A. Attached to the correspondence were copies of all relevant documents. On 13 September 2011 Dr A wrote to the Departmental Officer. A copy of the correspondence is attached to the original appeal submission as document 121. In that correspondence Dr A states:

 

‘… The audiogram results were not self-recorded. They were plotted on the audiogram by the testing audiologist.

 

The transfer of results on the audiogram was plotted directly on to Form B1 161 (OD) A.

…”

 

38. The contents of the correspondence dated 13 September 2011 from Dr A were shared with the appellant on 10 November 2011 in a telephone conversation with the Departmental Officer who confirmed that a copy of the correspondence would be sent to him.

 

39. A further major concern which the appellant had with the completed Form BI 161 (OD) A related to information contained within that form concerning the date of its calibration. In the body of the form there is a space to note the make of the audiometer and the date of its last calibration. In the actual form completed on 31 August 2010 there is no doubt that the recorded date of calibration is September 2010. In a telephone conversation on 16 August 2011 the appellant informed the Department that the actual audiometric test which had been conducted on him was on 31 August 2010 which clearly pre-dated the recorded date of last calibration which was September 2010.

 

40. The Department’s response was as follows. In paragraph 44 of the original submission, referred to in detail above, and in which the telephone conversation which the Departmental Officer had with Ms T on 7 September 2011 is summarised, the following is recorded:

 

‘… Ms T was also asked about the appellant’s query over the date of the last calibration of the audiometer. She advised that it was tested once a year in September and that the date shown on form BI 161 (OD) A for the last calibration of the audiometer should have been September 2009. …’

 

41. In the correspondence forwarded to Dr A by the Departmental Officer on 7 September 2011 Dr A is asked to confirm the correct date of calibration of the audiometer. In the response dated 13 September 2011, Dr A records:

 

‘(The claimant) has rightly pointed out on the form the date of last calibration of the audiometer was recorded in December 2010, this is in fact an error. I have discussed this with [Ms T] who was the audiologist who carried out the test. The audiometers in the department are calibrated each September. The calibration date on the audiometer should have read “September 2009”.’

 

42. It is clear that the reference to ‘December 2010’ should be to ‘September 2010’.

 

43. At the oral hearing before me the appellant expressed his continuing disquiet at what he perceived to be the reluctance of Ms T to respond directly to the queries made of her by the Departmental Officer. As was noted above, he also maintained his concerns that Dr A was providing evidence concerning matters about which he had no direct knowledge. I set out below my conclusions on the use to which the contents of Form BI 161 (OD) A was made in the decision-making process giving rise to the decisions under appeal and by the appeal tribunal in determining the appeals which were before it. I also address further submissions made by the appellant in connection with the significance of using 1, 2 and 3kHz readings.

 

44. I turn to the second form which was completed on 31 August 2010. It is Form BI 161 (OD) (10/01). A copy of the relevant form was attached to the original appeal submission as Document 11. It is accepted that this form was completed by Dr A. The appellant has indicated that the form may have been completed by Dr A during his brief meeting with him.

 

45. There are three aspects of the contents of the form which concern the appellant. The first is the response which has been given by Dr A to the question ‘From your general and informal observations of the patient in the clinic (but disregarding the result of tuning fork tests and audiometry) what would be your estimate of the degree of his hearing disorder (e.g. NIL, SLIGHT, MODERATE SEVERE)? Dr A’s response is ‘Slight’. The second concern is the response of Dr A to the question ‘Is the audiometric configuration in any way atypical of the majority of industrial deafness cases? If so, in what way?’ Dr A has responded ‘Yes, there is much greater low and middle rate frequency “loss” than expected. The “loss” in the right ear has no evidence of a notch.’

 

46. The third concern relates to responses entered by Dr A on the third page of the form under the heading ‘Remarks’. Dr A has recorded the following:

 

‘… (The claimant’s) hearing is better than the audiogram suggests. It is impossible to have bone conduction thresholds worse than those obtained by air conduction. Cortical evoked response audiometry would show the two thresholds but it is probably not needed here because the average “loss” is still less than 50dB in each ear.’

 

47. During the course of the oral hearing before me, Mr Hinton confirmed that the significance of the comments concerning the average loss being less than 50dB is that for the purposes of the prescribed disease A10 - sensorineural hearing loss or, more commonly, occupational deafness - in Schedule 1 to the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations (Northern Ireland) 1986-50dB was the threshold hearing loss for the prescribed disease to be met. In turn, this reinforced the appellant in his view and concern that Dr A thought he was being asked to prepare a report on hearing loss resultant on the prescribed disease A10 rather than hearing loss consequent on an industrial accident. The fact that Dr A completed Form BI 161 (OD) (10/01) further underlined the appellant’s views that at this initial stage of the decision-making process, those assessing his hearing loss thought that they were doing so in connection with the A10 prescribed disease. I am of the view that the appellant’s concerns in this regard are legitimate.

 

48. Arrangements were made for the appellant to be medically examined on 13 October 2010. For that purpose the appellant attended a medical examination centre in Belfast. He had travelled to Belfast from Londonderry. He was informed that the Medical Adviser who had been scheduled to conduct the medical examination could not do so as he also conducted medical examinations for the appellant’s former employers. I have no doubt that this cancelled medical examination and the inconvenience caused to the appellant only added to his bemusement at the decision-making process to date.

 

49. The appellant was recalled for medical examination on 9 November 2010. On this occasion the appellant was examined in respect of the accidents which had occurred on 3 July 1980 and 2 October 1981. Copies of the reports of the medical examination were attached to the original appeal submission as documents 13 and 14. At page 3 of the report of the examination conducted in connection with the accident on 3 July 1980, the Medical Adviser has set out a set of clinical findings on examination and indicated that he/she had sight of Forms BI 161 (OD) and BI 161 (OD) A. This information was replicated on page 3 of the second report. The Medical Adviser concluded as follows:

 

‘… Rather than one or 2 incidents causing this hearing loss it is more likely to arise from the sum of all the acoustic trauma he has suffered over the years i.e. a process of repeated acoustic trauma causing hearing damage.’

 

50. On 12 November 2010 the Department issued two decisions, copies of which were attached to the original appeal submission as documents 15 and 16. In each decision the appellant was informed that he was not entitled to IIDB from a relevant date as there was no loss of faculty after the expiry of the injury benefit period beginning with the date of the industrial accident. In each decision there was reference to section 103 (1) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992. As was noted above, Section 103(1) sets out the basic conditions of entitlement to IIDB arising from an industrial accident.

 

51. Subsequently, the appellant made a request for the decisions of 12 November 2010 to be looked at again. He submitted medical evidence of his own in support of this request. He also made a complaint that there had been insufficient time for the conduct of the medical examinations on 9 November 2010. On 26 November 2010 a Medical Officer conceded that the Medical Adviser had not been given sufficient time to complete the complex medical assessments on 9 November 2010 although also agreed that the assessments had been carried out satisfactorily.

 

52. The appellant was notified in a telephone call on 13 December 2010 that decisions on his request for a reconsideration had been deferred in light of advice which was being sought as to the proper approach to claims to IIDB for disablement arising from hearing loss due to firearms use etc. He was advised that this would not affect any right of appeal. During the course of a telephone call on 4 February 2011 the appellant indicated that he had originally wished to make claims in relation to further incidents in addition to the two which had subsequently been declared to be industrial accidents but had been advised that this was not possible. The appellant was notified that it had initially been assumed that he was restricting himself to claims for those two incidents but that on re-reading the transcript of an early telephone call the Department acknowledged that it would accept that his original intention had been to claim for more than two incidents. The appellant was subsequently advised that he would not have to make further claims in relation to the further incidents but could provide written notification of the incidents to which he was referring.

 

53. If I pause there I would have to say that I would understand why the appellant subsequently formed the view, in his response to the original appeal submission, dated 28 September 2012, that he had not been ‘… the subject of a fair, accurate and appropriate examination and procedures.’ He had endeavoured to make a claim to IIDB arising from hearing loss. He was informed that as his claim stood it was unlikely to succeed unless he specified specific incidents. He was sent two fresh claim forms which were not appropriate to his type of claim. He took the initiative to download the proper forms. He attended for an audiometric examination. In his view the examination was not satisfactory. The form used to record the results of the audiometric test was not specific to hearing loss resultant on accident. He had other concerns as to how the results of the audiometric testing had been recorded on the form. He was equally troubled about the calibration of the machine utilised for the audiometric testing. He had strong views that when Dr A completed his report he was of the mistaken belief that he was addressing hearing loss in the context of the A10 prescribed disease of occupational deafness. He had attended for a medical examination which was cancelled. All of this had fed into two decisions of the Department which were adverse to him. He was then informed that the Department accepted that insufficient time had been allocated for the medical examinations and assessments on 9 November 2010. He was informed that the Department had accepted that it was his original intention to claim IIDB in respect of incidents additional to those two accepted by the Department and declared to be industrial accidents.

 

54. Ultimately the appellant has submitted that the problematic aspects of the initial decision-making process has fed into and tainted the subsequent decision-making undertaken by the Department and accepted and confirmed by the appeal tribunal. I address that central submission below. Before I do so, I review the approach undertaken by the Department to address the contentious features of the preliminary decision-making process. I begin that review by noting that the approach taken by the Departmental Officer who was responsible for the decision-making at the secondary stage could only be described as being exemplary. That Officer recognised the deficiencies in the decision-making process to that date and set up an alternative approach to ensure that the standard of decision-making reflected the legislative requirements for determining claims of this type.

 

55. What did the Officer do? At this stage of the decision-making process there was an extant request by the appellant for reconsideration of the decisions dated 12 November 2010. The appellant had attached a copy of a report dated 11 February 1992 from Mr P in support of his request. Following notification to the appellant that he did not require to complete additional claim forms in respect of the further incidents in relation to which he had intended to claim IIDB, the appellant, on 4 February 2011 provided such a list and enclosed a copy of a report dated 24 May 2010 from Mr D.

 

56. On 1 March 2011 the Department decided that each of the 24 further incidents which the appellant had identified and in respect of which he wished to claim IIDB, would be accepted as industrial accidents. On 21 March 2011, and in connection with a query by the appellant why he had not been subject to medical examinations in connection with the further incidents (now classed as industrial accidents) the appellant was informed that it had been necessary to advise the Department’s Medical Advisers of the proper approach to cases involving hearing loss through accident, that such advice had been prepared and disseminated and that the necessary arrangements could be made.

 

57. At paragraph 29 of the original appeal submission, the Departmental Officer recorded the following:

 

‘The Department’s Medical Support Services were duly requested to make the arrangements for the necessary medical examinations. A memo was drawn up and included in the papers to explain the circumstances of (the claimant’s) case and that although it is necessary to distinguish between injury by accident and injury by process, any personal injury that resulted from a series of separate incidents should be regarded as injury by accident rather that injury by process and consequently if the medical adviser accepted that (the claimant) sustained personal injury as a result of any or all of the incidents for which he was claiming, any such injury should be regarded as having been sustained by accident and assessed accordingly. The memo also explained that as well as considering each of the 24 incidents recently accepted on 01/03/11 as industrial accidents, the medical adviser was being asked to look again at the advice that had already been given in relation to the industrial accidents on 03/07/80 and 02/08/81.’

 

58. The final sentence in the quoted paragraph above is very significant. The Departmental Officer had recognised that the decision-making process giving rise to the decisions dated 12 November 2010 in relation to the accidents of 3 July 1980 and 2 October 1981 was sufficiently problematic to require those decisions to be looked at again. The first stage in looking at those decisions again was to review the advice which had previously been given in connection with them.

 

59. Attached to the original appeal submission, as document 55 is a copy of the memorandum which had been prepared for the Departmental Officers in advance of the conduct of the medical examinations. The memorandum clearly sets out the proper approach to be adopted in cases such as the appellant’s, sets out the circumstances of the appellant’s case, refers to the additional medical reports from Mr P and Mr D, reviews the assessments and reconsidered assessments, made in connection with the accidents of 3 July 1980 and 2 October 1981, addresses the significance of reduced earnings allowance and gives details of the appellant’s employment history. Finally, the memorandum sets out a series of questions for the Medical Advisers. The memorandum could not be more cogent.

 

60. The appellant was examined on 14 June 2011 in relation to the 24 additional incidents accepted as accidents on 1 March 2011. Copies of the reports of those examinations were attached to the original appeal submission as documents 56 to 79. Also on 14 June 2011, the appellant was examined in connection with the request to reconsider the advice given in connection with the accidents on 3 July 1980 and 2 October 1981. Copies of the reports of those examinations were attached to the original appeal submission as documents 80 and 81.

 

61. On 22 June 2011 the Department made decisions in connection with the 24 accidents deciding that the appellant was not entitled to IIDB. Copies of those decisions were attached to the original appeal submission as documents 82 to 105. Also on 22 June 2011 the Department revised the decisions dated 12 November 2010 in connection with the accidents of 3 July 1980 and 2 October 1981. The decision in connection with the accident of 3 July 1980 was changed in respect of the assessment of the degree of disablement but the change was not sufficient to bring the appellant into entitlement to IIDB. The decision in connection with the accident of 2 October 1981 was revised but not changed. Copies of the decisions were attached to the original appeal submission as documents 106 and 107.

 

62. As we now know, the appellant appealed against the 24 decisions made on 22 June 2011. Prior to the appeal tribunal hearing on 23 April 2013, there was an interchange of correspondence between the appellant and the Departmental Officer. As was noted above, some of that exchange related to concerns which the appellant had raised about the preliminary stage of the decision-making process. Subsequently the Departmental Officer produced a detailed and comprehensive appeal submission. In response to that submission, the appellant produced his own detailed response to the appeal submission dated 28 September 2012. This led, in turn, to a further exchange of correspondence, culminating in the preparation by the Departmental Officer of a Supplementary Submission for the appeal tribunal.

 

63. The appeal tribunal hearing took place on 23 April 2013. The appellant was present as was the Departmental Officer who had been responsible for the decision-making process at the secondary stage leading to the decisions of 22 June 2011. The record of proceedings for the appeal tribunal hearing runs to 12 A4 pages and it is clear from the detail of that record that the appeal tribunal went about the forensic evidence-gathering process in a careful and thorough manner and that the parties to the proceedings were given every opportunity to adduce evidence and make submissions.

 

64. What did the appeal tribunal decide? As was noted above, the appeal tribunal issued a composite set of reasons which included a general assessment of the common issues which arose in each of the appeals and a specific statement relating to the factual circumstances of each individual appeal. The reasons which relate to the appeal tribunal’s assessment of the common issues are attached to this decision as an Appendix.

 

65. The appeal tribunal’s conclusions, in summary, were as follows:

 

(i)        The appeal tribunal recognised that at the time when the appellant made his claims the Department had little experience in processing and determining claims for IIDB resulting from hearing loss consequent on an industrial accident. It also acknowledged that this resulted in several errors in the handling of the appellant’s claims. Having considered the detail of the appeal papers and having heard from the Departmental Officer who was responsible for taking over the decision-making process it was satisfied that any deficiencies in the decision-making process were rectified and that the Department had arrived at decisions on the proper basis that the claims were for loss of faculty arising from hearing loss consequent on accident.

 

(ii)       The appeal tribunal noted that the Department had utilised form BI 161 (OD)(A) to record the extent of his hearing loss following the audiometric test which took place on 31 August 2010. It recorded that the reason for the use of this form was that ‘… This was the first case examined for deafness due to industrial accident.’

 

(iii)      The appeal tribunal addressed the appellant’s concerns about the incorrect date of calibration of the audiometry machine which had been utilised to assess his hearing loss at the audiometric testing which took place at the Royal Victoria Hospital on 31 August 2010. The appeal tribunal noted Dr A’s evidence in his correspondence of 13 September 2011 and recorded that it accepted that evidence. Accordingly it is clear that the appeal tribunal was accepting that the date entered for calibration on form BI 161 (OD) A, was incorrect, that it should have read ‘September 2009’ and accepted that the audiometry machine was calibrated on an annual basis in September of each year.

 

(iv)      The appeal tribunal also addressed the appellant’s submission concerning the use of ‘… occupational deafness tables by the Department to assist in assessing his accidents when the chart is in use for occupational deafness. (The claimant) felt that in using these tables from the Departmental handbook he was being disadvantaged. …’ The appeal tribunal found that the relevant tables were for Departmental guidance only. Further they were based on advice from the Industrial Injuries Advisory Council that hearing loss over 1, 2 and 3 kHz affects the ability to discriminate speech and that this was the most disabling aspect of noise-induced hearing loss. Accordingly, it was relevant to the assessment of deafness in industrial injuries cases. The appeal tribunal decided that the Department was ‘… entitled to use the table as part of the decision making process to assist in assessing the degree of disablement resulting from hearing loss sustained as a result of industrial accidents. …’ More significantly, the appeal tribunal found that the relevant tables could not be used exclusively, in the sense of being the sole determinant of the degree of disablement, that the tables were not binding on the appeal tribunal and had to be utilised in conjunction with all of the evidence which was before it.

 

(v)       The appeal tribunal considered the appellant’s submission that he had been treated differently and that some of his colleagues had been awarded an entitlement to IIDB. The appeal tribunal noted its duty was to consider appeals arising from decisions in the appellant’s case alone based on its assessment of the evidence in those appeals. It was not concerned with evidence arising from other decisions.

 

(vi)      The appeal tribunal assessed the evidence which was before it in light of the guidance which it derived from the statutory provisions on the factors to be taken into account in the assessment of disablement for the purposes of entitlement to IIDB. It also noted that there was no guidance from the appellate authorities, including the Social Security Commissioners on the assessment of disablement in hearing loss cases where the hearing loss resulted from industrial accidents. The appeal tribunal did mention the decision of the Social Security Commissioner in Great Britain in CI/5029/02 in the context of a submission made by the appellant that the conversational voice testing undertaken in his case was ‘… totally unscientific and of no evidential value.’ The appeal tribunal found that the decision in CI/5029/02 was authority for the principle that conversational voice testing is the starting point for assessing the degree of disablement. The appeal tribunal then assessed the evidence as set out in the Appendix to this decision and made decisions in connection with each individual industrial accident.

 

66. I turn to my reasons as to why I have found that the decision of the appeal tribunal is not in error of law. As was noted above, the appeal tribunal accepted that all of the decisions which had been made on the appellant’s claims to IIDB, including the decisions on the claims arising from the 24 incidents identified by the appellant at the secondary stage of the decision-making process and the revision of the two decisions which had been made at the preliminary stage, were correct. Accordingly, it is incumbent on me to analyse whether the decision-making process in the Department was correct. I address all of those issues against the background of the features of that decision-making process which the appellant submitted were problematic.

 

The use of Form BI 161 (OD) A to record the results of the audiometric testing on 31 August 2010

 

67. As was noted above, the Department has been open in accepting that Form BI 161 (OD) A was designed for claims for IIDB for the prescribed disease occupational deafness and in confirming that there are no discrete forms for recording the outcome of audiometric testing where the claim, as in the instant case, is for hearing loss arising from an industrial accident. It is against that background that the form was utilised in this case.

 

68. The appeal tribunal did not make specific findings and conclusions with respect to the use of Form BI 161 (OD) A. In endorsing, however, the decisions of the Department it has accepted the submissions made by the Departmental Officer, in the original appeal submission, and in correspondence dated 4 December 2012 which post-dated the decisions under appeal but which pre-dated the appeal tribunal hearing, and maintained by Mr Hinton in the present proceedings, was that there was nothing to prevent a form which had been designed to record the results of audiometric testing for the purposes of IIDB occupational deafness claims, also being utilised for recording results of audiometric testing for the assessment of disablement resulting from hearing loss following an industrial accident. Further, Mr Hinton submitted that the evidence in the relevant form completed on 31 August 2010 was not the only evidence relied on by the Department’s Medical Advisers, the decision-maker and the appeal tribunal.

 

69. I cannot agree that the decision of the appeal tribunal is in error of law on the basis of this submitted ground. In my introductory comments I have made it clear that it is imperative that the Department establishes a discrete process for administrating and determining claims for IIDB where the basis for such claims is hearing loss resultant on industrial accident. Further I have advised that a key characteristic of that process should be the development of a discrete form for the recording of the results of audiometric testing in such cases. Any such form might parallel the Form BI 161 (OD) A which is presently used for recording the results of audiometric testing in cases involving hearing loss prescribed disease claims. That will have the advantage of imbuing confidence in claimants that their claims are being assessed on the proper basis.

 

70. I am of the view that the form was no more than an instrument for the record of the results of the audiometric testing which had been carried out. I return below to the nature of the tests which were carried out, but, for the moment, cannot agree that the simple use of the form to record the results of that testing renders the decision-making process in the Department and the endorsement of that decision-making process by the appeal tribunal as being flawed. Further I agree with Mr Hinton that the adoption of particular forms is not prescribed in the legislation governing the substantive entitlement to IIDB nor the decision-making and appeals process for social security benefits. Finally, and most significantly, it is clear that the results of the audiometric testing conducted on 31 August 2010 was but one piece of evidence utilised by the Department in arriving at its decision. At the date of the decision it had the evidence contained within the report of the examination by the Medical Adviser on 14 June 2011, and the reports from Mr P and Mr D. It is important to note that these latter reports had been provided by the appellant himself in support of his claims to IIDB. At the date of the relevant decision, the Department also had before it all of the submissions made by the appellant. The appeal tribunal had all of the evidence which was before the Department. In addition it was able to hear from the appellant himself and I note that it also reserved its final decision until it had seen the appellant’s hospital records.

 

The manner in which the results of the audiometric testing were entered onto Form BI 161 (OD) A

 

71. The appellant raised this issue with the Department as part of his overall concerns about the conduct of the audiometric testing on 31 August 2010 and the use and completion of both forms on that date. As was noted above, the appellant had queried whether the results of the audiometric test were self-recorded by the machine or entered by hand by the testing officer. He added that if the results were self-recorded then he would like to see a copy of same. When the issue was raised the appellant’s claims were being dealt with by the Departmental Officer who had assumed responsibility for the claims at the secondary decision-making stage. In my view, the Departmental Officer could not have done more to address the appellant’s concerns. The Officer telephoned the testing officer and raised the appellant’s query. The Officer noted that the testing officer ‘… explained that there would be no mechanical record of the results and that she would have recorded them by hand. …’

 

72. The testing officer was requested to confirm this information in writing and her response was that the request should be forwarded to Dr A. As was noted above Dr A subsequently wrote to the Departmental Officer, in correspondence dated 13 September 2011, a copy of which was forwarded to the appellant and confirmed that the audiogram results were not self-recorded and were plotted directly onto the audiogram and onwards to Form BI 161 (OD) A by the audiologist.

 

73. The appellant has not raised the matter of the entry of the audiogram test results onto Form BI 161 (OD) A in the proceedings before the appeal tribunal nor before me save to indicate his concern at the reluctance of the audiologist to respond directly to the Departmental Officer. The appellant raised similar concerns about the audiologist’s apparent reticence to provide written confirmation of the date of calibration of the audiology testing machine. I deal with that concern below.

 

The entry on form BI 161 (OD) A concerning the date of the last calibration of the machine

 

74. As was noted above, the appellant had significant concerns about this issue. It was he who spotted an obvious error and raised the issue with the Department. Once again, the Departmental Officer acted to address this matter. He raised it as part of the telephone conversation with the testing officer. As was noted above, her response was that the relevant machine was tested every September and that the correct calibration date should have been ‘September 2009.’ In his correspondence dated 13 September 2011 Dr A confirmed that on the relevant form the correct date of calibration should have been ‘September 2009’.

 

75. In the statement of reasons for its decision, the appeal tribunal indicated that it accepted the evidence from Dr A.

 

76. The appellant has two worries. The first of these was the apparent reticence of the testing audiologist to confirm the actual date of the calibration in writing to the Departmental Officer. With respect to this submission, I find that it is unfounded. I can understand fully why a testing audiologist, faced with a query from a Departmental Official, would decide that the appropriate person to provide a formal response to the query, which might have an impact on social security benefit entitlement, should be her own superior. She did not demonstrate any reluctance to provide the required information at all.

 

77. The second concern was a submission that Dr A, in providing evidence concerning the date of calibration of the audiometer, was providing evidence on matters about which he had no direct knowledge. Once again, and with respect to the submission, I cannot accept it. Dr A provided evidence concerning the discussions which he had with the testing audiologist about the procedures for the testing of the audiometer. The appeal tribunal accepted that explanation and I find nothing perverse or irrational in that acceptance.

 

Dr A’s report of 31 August 2010 as set out in Form BI 161 (OD) (10/01)

 

78. I begin by incorporating my reasoning, set out above, on the use by the Department of forms designed for assessing hearing loss in prescribed disease cases in cases involving hearing loss consequent on industrial accident. Accordingly, the simple use of Form BI 161 (OD) (10/01) when that form was not specific to the claim being made by the appellant does not obviate the Departmental decision-making process or the approval of that process by the appeal tribunal.

 

79. I turn to the contents of the report. As was noted above, the appellant expressed significant concern that throughout the entire process of the completion of the form, Dr A was of the view that he was being asked to assess the extent of hearing loss resultant on a prescribed disease. He points to the comment made by Dr A under the heading ‘Remarks’ that:

 

‘… (The claimant’s) hearing is better than the audiogram suggests. It is impossible to have bone conduction thresholds worse than those obtained by air conduction. Cortical evoked response audiometry would show the two thresholds but it is probably not needed here because the average “loss” is still less than 50dB in each ear.’

 

80. As was noted above, I find that the appellant’s concerns on this matter are legitimate. The evidence contained within Dr A’s report made its way into and formed part of the Departmental decisions dated 12 November 2010 which decided that the appellant had no entitlement to IIDB for the accidents on 3 July 1980 and 2 October 1981. Had the decision-making process ended on 12 November 2010 then I would have had greater concerns that the decision-making process was sufficiently problematic to border on the defective.

 

The secondary decision-making process was ‘tainted’ by the problematic characteristics of the initial decision-making

 

81. The truth of the matter, however, is that the decision-making process did not end on 12 November 2010. As was noted above the Departmental Officer took the initiative to address the deficiencies in the decision-making process. There were two aspects to the secondary decision-making action. The first was to address 24 further claims in respect of accidents for which the appellant wished to claim IIDB. The second, and most relevant to this aspect of the appellant’s appeal, was to instigate action leading to revisions of the decisions dated 12 November 2010. That action included obtaining further Departmental evidence in the form of reports of medical examinations conducted on 14 June 2011. Before the Medical Advisers were the results of the audiometric test conducted on 31 August 2010, Dr A’s report, the two reports from Mr P and Mr D and the appellant’s own evidence. The Medical Adviser was given specific instruction, in the form of the carefully-worded memorandum of the proper approach to the appellant’s claim.

 

82. As was noted above, the function of the Medical Adviser is to provide advice to the decision-maker. It was the decision-maker who decided that the decisions dated 12 November 2010 should be revised. The decision-maker had before her all of the evidence which was before the Medical Adviser and, of course, the Medical Adviser’s report of 14 June 2011. The revised decision in respect of the accident of 3 July 1980 was that it was changed in respect of the assessment of the degree of disablement but the change, was not sufficient to bring the appellant into entitlement to IIDB. The decision in connection with the accident of 2 October 1981 was revised but not changed.

 

83. Similar considerations apply to the secondary decision-making process in connection with the 24 further claims in respect of accidents for which the appellant wished to claim IIDB.

 

84. I am wholly satisfied that the secondary decision-making process was rigorous and fair. With respect to the appellant’s submission that the secondary decision-making process was polluted by the approach taken at the initial or primary stage, I cannot accept it. What deficiencies there were in the initial decision-making process were rectified at the secondary stage. In comprehensive and carefully prepared appeal and supplementary submissions, the Departmental Officer has provided details of the secondary decision-making process and undertaken a thorough analysis of the legal and evidential basis on which the decisions were made. The evidential basis was wide. There was no sole reliance on the evidence from the initial audiometric test or on the report of Dr A. All of the available evidence, including the evidence in the reports of Mr P and Mr D, was thoroughly analysed and assessed. The appeal tribunal accepted and endorsed the decision-making process. I find no error in it so doing.

 

The nature of the audiology tests and the results of those tests

 

85. The appellant expressed concerns at the assessment of his hearing loss using the 1,2 and 3 kHz scale and the annotation of the record of audiometric tests by the Medical Adviser and Dr A. I have already noted that in Dr A’s report of 31 August 2010 he recorded that his estimate of the appellant’s hearing loss, based on general and informal observations of the appellant, was ‘slight’ and that:

 

‘‘… (The claimant’s) hearing is better than the audiogram suggests. It is impossible to have bone conduction thresholds worse than those obtained by air conduction …’

 

86. In Form BI 161 (OD) A, the testing audiologist is asked to comment on whether she thought that the results of the audiogram were consistent with her informal observations of the appellant’s communications ability, answered ‘No’.

 

87. In the report of the examination conducted by the Medical Adviser on 9 November 2010, the Adviser recorded:

 

‘… Heard me at 1m (L) ear to me in a quiet room at below conversation volume.

 

Hearing aid (R) ear.

 

6m forced whisper heard in both ears.

…’

 

88. In the report of the examination conducted by the Medical Adviser, dated 14 June 2011 and a copy of which was attached to the original appeal submission as document 56, the Medical Adviser recorded:

 

‘… The Department’s report 31.8.10 states results are unreliable and that hearing is better than the reported loss. Ignoring these comments the average loss of … is noted.’

 

89. In the original appeal submission, the issue of the assessment of the degree of disablement resulting from industrial accidents was addressed by the Departmental Officer in paragraphs 9 to 80 in Section 5. The analysis is thorough and carefully set out. It includes sections on the general principles on assessment of the degree of disablement, an analysis of the evidence which was available to the decision maker and the application of the relevant principles and evidential assessment to the individual circumstances of the appellant’s case. It is important to note that the Departmental Officer reminded himself of the guidance on the general principles of assessment which had been provided in R(I) 2/06. Further the Officer has set out further principles on the assessment of the degree of disablement resulting from hearing loss and tinnitus. He has reviewed the proper approach to hearing aids. The Officer has analysed the use which may properly be made of conversational voice testing after assessing the principles set out by the Commissioner in Great Britain in CI/5029/02). Importantly, he has also addressed the use made of audiometric tests which averaged hearing loss over 1, 2 and 3 kHz frequencies. The Officer, in applying the relevant principles to the individual circumstances of the appellant’s case, undertook a thorough analysis of all of the evidence which was before him including the results of the audiometric testing conducted on 31 August 2010, the evidence contained within the report of the examination by the Medical Adviser on 14 June 2011, and the reports from Mr P and Mr D. It is important to note that these latter reports had been provided by the appellant himself in support of his claims to IIDB. At the date of the relevant decision, the Department also had before it all of the submissions made by the appellant. It is difficult to find fault with the manner in which the assessment of the degree of disablement was addressed by the Departmental Officer.

 

90. In his oral and written submissions made in the proceedings before me, on the question of the use of audiometric tests, Mr Hinton asserted that:

 

‘The significance of using 1, 2 and 3 kHz readings is dealt with by the Industrial Injuries Advisory Council. Paragraphs 45 to 47 (I would refer you to Tabbed Document ‘D’) states:

 

“In 1973 the Council considered the most significant disabling effect of noise-induced hearing loss to be the loss of the ability to discriminate speech. Speech audiometry, which measures the percentage of words intelligible at different loudness levels of speech, and the percentage discrimination loss compared with normal, has face validity but there are technical difficulties, unreliability and a risk of subjective bias. The Council took the advice of the British Association of Otolaryngologists (BAOL) in 1973 that a suitable assessment measure of the disabling effects of noise-induced hearing loss would be hearing threshold level measured by pure tone audiometry averaged over 1,2 and 3 kHz. These frequencies are predominately involved in speech discrimination and produce reliable, repeatable audiometric results.

 

An authoritative detailed discussion of the quantitative assessment of hearing loss for compensation which included a historical overview was published in 1992 (12). This confirmed that different approaches have been proposed at different places and times over the last 60 years with as yet no consensus reached. It concluded that, for medico-legal purposes, pure tone audiometry remained the most appropriate method for supporting a diagnosis of sensorineural noise-induced hearing loss ie from the overall pattern of the tracing including the characteristic notch or bulge as 3, 4 or 6 kHz, and that assessment of hearing disability should be by measuring hearing threshold level in dB’s averaged over 1,2 and 3 kHz. This approach has been adopted in the UK courts.

 

We investigated frequencies used for assessment of hearing loss in other countries, particularly the use of 0.5 and 4kHz (13). This confirmed the lack of consensus in approach, and the experts consulted in the review were generally of the opinion that the current process for assessment remains satisfactory.

 

In the absence of compelling evidence to the contrary we recommend that it is appropriate to retain the current method of assessment (ie the use of pure tone audiometry at 1, 2 and 3kHz).”

 

I would also point out that in paragraph 50 (I would refer you to Tabbed Document ‘C’) of the same report the IIAC stated:

 

“...The Industrial Injuries Scheme...relates to a wide range of disorders. Consistency and equity in assessment both within and across the conditions covered must be preserved. To do that, assessments must be in line with the schedule of assessments set out in the Social Security (General Benefit) Regulations 1982 Schedule 2. These statutory scheduled assessments act as benchmarks for all other assessments in the Scheme including Occupational Deafness.”

 

Therefore in line with the above I would contend that the 1, 2 and 3 kHz frequencies have relevance in assessing hearing loss arising from industrial accidents as well as those arising from Occupational Deafness. The tribunal in considering this issue referred to the advice quoted above from the IIAC and in my opinion correctly concluded that it bears relevance to the assessment of hearing loss in accident cases. Consequently it did not err in law in taking this into account in the decision making process. As I have also stated above the tables were not the only source of evidence the medical advisers took into account in arriving at their assessment in respect of this accident. It took specialist reports into account along with evidence provided by (the claimant) and the tribunal referred to this in the statement of reasons.’

 

91. I cannot disagree with the analysis set out by Mr Hinton in relation to the use made by the Department of audiometric testing using the 1, 2 and 3 kHz readings. I set out below my further reasons in connection with the approach of the appeal tribunal.

 

92. In connection with the issues of the comments made by Medical Adviser in the report of the examination, dated 14 June 2011 and a copy of which was attached to the original appeal submission as document 56, concerning the reliability of the results of the audiometric tests conducted on 31 August 2010, Mr Hinton submitted:

 

‘The aforementioned report refers to an audiogram carried out on (the claimant) at the Royal Victoria Hospital on 31 August 2010. The results of this test were plotted on a graph and the average sensorineural hearing loss over 1, 2 and 3 kHz were recorded. Under the heading “Remarks” the Otologist reached the following conclusions:

 

“(The claimant’s) hearing is better than the audiogram suggests. It is impossible to have bone conduction thresholds worse than those obtained by air conduction. Cortical evoked response audiometry would show the two thresholds but is probably not needed here because the average “loss” is still less than 50db in each ear.”

 

The Department did make reference to the aforementioned report in a supplementary submission to the tribunal written by Mr Crawford on 23 January 2013. Paragraphs 10 and 11 of this submission stated:

 

“Accordingly, although the medical advisers were aware of the reservations expressed by the testing officer and Mr A about the reliability of the results of the hearing test on 31/8/10....the medical advisers nevertheless used the figures from air conduction at the 1, 2 and 3 kHz frequencies from the test on 31/8/10 in assessing the degree of (the claimant’s) disablement resulting from hearing loss.

 

The medical advisers also...referred to the figures for (the claimant’s) hearing loss at the 1, 2 and 3 kHz frequencies from Mr D’s report and pointed out that both sets of figures (i.e, the figures for (the claimant’s) hearing loss at the 1, 2 and 3kHz frequencies by air conduction from the test on 31/8/10 and the figures for (the claimant’s) hearing loss at the same frequencies from the hearing test included in Mr D’s report) would correspond to an assessment of 2 per cent on the basis of the table of scales of hearing loss and corresponding percentages of disablement that was included as document 115.”

 

Mr Crawford also made further reference to this audiogram in paragraphs 19, 20 and 27 of the supplementary submission.

 

Mr Crawford also noted the comments made by the Otologist in tabbed document 10. In answer to the question, “Do you think that the above audiogram is consistent with your informal observations of the patient’s communications ability”, the Otologist answered “no”. This would tie in with the remarks made by the Otogolist in document 11 that “(the claimant’s) hearing is better than the audiogram suggests”. Therefore, even though the medical advisers noted these remarks relating to (the claimant’s) hearing being better than the decibel readings suggested, they were still prepared to give him the benefit of the doubt and use these figures to arrive at an assessment of 2 per cent. I would also make the point however that the medical advisers did not place sole reliance on the audiogram in arriving at the 2 per cent assessment. It also considered the report from Mr D (whose decibel readings also corresponded to an assessment of 2 per cent based on the table of scales shown in document 115), the report from Mr P and the evidence provided by (the claimant) at the examination.

 

Therefore, it is my contention that the medical advisers arrived at a fair percentage assessment after taking into account all available evidence placed before it and the tribunal concurred with this view in its statement of reasons.’

 

93. I turn to the parallel assessment undertaken by the appeal tribunal. As was noted above, the appeal tribunal had before it all of the evidence and submissions which were before the Department and all of the submissions made by the appellant. In addition it was able to hear from the appellant itself and I note that it also reserved its final decision until it had seen the appellant’s hospital records.

 

94. In paragraphs 16-19 above, I have set out the proper approach to the assessment of disablement where the degree of disablement is not prescribed. I have noted that the principal guidance is derived from the decision of the Tribunal of Commissioners in Great Britain in R(I) 2/06. The Commissioners are correct in stating that discretion is afforded to decision-makers and appeal tribunals. Interference with the decisions of decision-makers and appeal tribunals is only permitted where it is possible to identify a material error of law. There is a difference between an error of law and a dispute on a question of fact, in cases such as the present one, where the challenge is to the percentage of functional disablement. The latter is essentially a matter of factual and medical assessment for the appeal tribunal hearing and seeing the evidence in the case to make. It is not for an appellate body, such as the Social Security Commissioners, whose jurisdiction is limited to points of law, to offer or impose its substituted view.

 

95. I am also reminded that Upper Tribunal Judge Wikeley, at paragraphs 17 to 19 of his decision in AJ v SSWP (II) ([2012] UKUT 209 (AAC)), and in following R(I) 2/06, stated:

 

‘17. There is no magic formula which predetermines the assessment of disablement.  This assessment involves the exercise of judgment within the relatively broad statutory framework, especially for injuries which are not listed in the Schedule to the Social Security (General Benefit) Regulations 1982 (SI 1982/1408).  The tribunal in the current case properly identified the relevant statutory principles, and in particular the need to make a comparison with a person of the same age and sex without the disabling conditions in question (see Schedule 6 to the Social Security Contributions and Benefits Act 1992).

 

18. It follows that tribunals have a fair degree of discretion in making the required assessment. As the Tribunal of three Social Security Commissioners explained in reported decision R(I) 2/06 (at paragraph 44):

 

“44.   In an exercise of judgment and evaluation such as is involved in the assessment in percentage terms of an individual claimant's degree of functional disablement, there is inevitably a band within which an assessment would be reasonable, and the reasons why a particular percentage has been arrived at rather than a point or two higher or lower may be impossible to state with exact precision. As on all questions of valuation or the assessment of any amount, they may be difficult to explain otherwise than by making clear the factors that have or have not been taken into account, and confirming that the result reflects the application of the tribunal's own judgment and expertise to those factors and the evidence (see Murrell v Secretary of State for Social Services ...; and R(I) 30/61 at paragraph 8).”

 

19. The simple fact that the appellant’s own doctors think that the assessment is too low does not mean that the FTT erred in law.’

 

96. I have to ask whether the analysis undertaken by the appeal tribunal in the instant case is in keeping with the principles set out above. I am satisfied that it is. The appeal tribunal concluded that the Department was entitled to take into account what it termed ‘occupational deafness tables’ in arriving at its assessment of the degree of hearing loss. The key finding was that the tables were for Departmental guidance only:

 

‘…. (The claimant) felt that in using these tables from the Departmental handbook he was being disadvantaged. The Tribunal considered this argument but found that the tables are for Departmental guidance only. They are based on the Industrial Injury Advisory Council’s advice that hearing loss over 1, 2 and 3 kHz affect the ability to discriminate speech and that this is the most disabling aspect of noise-induced hearing loss and is therefore relevant to the assessment of deafness in an Industrial Injuries cases. The Tribunal found therefore that the Department were entitled to use the table as part of the decision making process to assist in assessing the degree of disablement resulting from hearing loss sustained as a result of industrial accidents. However we also found that this could not be used exclusively but in conjunction with all the available evidence and is not binding on us.’

 

97. The appeal tribunal’s conclusions on the use of the ‘occupational deafness tables’, as a guide in the assessment of the degree of hearing loss are in keeping with the comments of the Commissioner in Great Britain in CI/1059/2002 at paragraph 17. The Commissioner also emphasises that there is no requirement to undertake audiometric testing at higher frequencies.

 

98. I have concluded that the appeal tribunal has undertaken a rigorous and rational assessment of all of the evidence before it. The appeal tribunal has given a sufficient explanation of its assessment of the evidence, explaining why it took the particular view of the evidence which it did. Any conflict in the evidence before the appeal tribunal has been clearly resolved and explained. The appeal tribunal made sufficient findings of fact, relevant to its decision, all of which are wholly sustainable on the evidence, and all of which are supported by relevant evidence. None of the appeal tribunal’s findings are irrational, perverse or immaterial. All issues raised by the appellant, either expressly or apparent from the evidence were fully examined by the appeal tribunal in conformity with its inquisitorial role. I repeat the overall conclusions of the appeal tribunal, which were as follows:

 

‘In conclusion therefore the Tribunal did not dispute that (the claimant) suffered hearing loss as a result of noise exposure at work. However we were mindful of the legislation governing these cases which inherently involves the use of some flexibility when assessing disablement. This was made particularly difficult in these cases firstly because of the initial confusion in both the Department and Medical Support Services about the fact that these incidents were to be considered as individual industrial accidents and not injury by process. Secondly the number of incidents and the time scale of them and since then presented further difficulties. However the Tribunal considered in detail all the arguments presented by (the claimant) and the correspondence between himself and Mr Crawford. The Tribunal was satisfied that the decisions of the Department based on the Medical Officer’s findings were reasonable. The Tribunal also found that the Medical Officers were entitled to refer to the Departmental internal guidance tables in conjunction with all the available medical evidence and (the claimant’s) oral evidence regarding the effects of these incidents and his subsequent hearing loss on him. We do not accept that the Department should be precluded from using these tables for guidance even though they were designed for occupational deafness. Our reasoning in this regard is that the Industrial Injury Advisory Council states that these areas of loss of hearing are the ones which relate to speech discrimination and are therefore relevant to the most disabling aspects of noise induced hearing loss. Also it was our view that the use of the tables for guidance in conjunction with all the other available evidence enables some degree of consistency and fairness in the assessment of these difficult cases.’

 

99. In CI/2012/2000 the Commissioner in Great Britain said the following, at paragraph 16 of his decision:

 

‘… There is no rule that one type of evidence is always to be preferred to another. The evidence has to be considered as a whole. The tribunal may conclude that one type of evidence is preferable to another, but that must be a judgment reached after considering the merits of all the evidence.’

 

100. The appeal tribunal has, in my view, placed the use by the Department of occupational deafness tables and the results of audiometric tests averaging hearing loss over 1, 2 and 3 kHz frequencies in the proper context of all of the evidence which was before it. That evidence included the reports from Mr P and Mr D, which were submitted by the appellant in support of his initial claims and subsequent appeals and, most significantly, the appellant’s own oral evidence. None of the evidence submitted by the appellant was ignored. All of the evidence was properly and thoroughly assessed in the proper context of the appeal tribunal’s role – the assessment of the degree of disablement arising from hearing loss in the context of an industrial accident. The appeal tribunal was aware of the proper approach to the issues which were before it and assessed those issues in accordance with that approach. Accordingly I cannot agree that the decision of the appeal tribunal was in error on the basis of this submitted ground.

 

Claims made by the appellant’s colleagues were treated differently

 

101. Before the appeal tribunal, the appellant submitted that claims made to IIDB by certain of his colleagues had been treated differently and that they had been awarded an entitlement to IIDB. The appeal tribunal dealt with this submission in the appropriate manner. The appeal tribunal noted that it had not been presented with evidence in connection with those other claims. Further, the appeal tribunal reminded itself that it was obliged to deal with the individual circumstances of the appellant’s appeals and not in the context of other claims and appeals.

 

102. It is not clear whether any of the appellant’s colleagues were awarded entitlement to IIDB following a successful appeal before an appeal tribunal. At paragraphs 89 to 91 of my decision in PH v Department for Social Development (II) [2013] NICom 50, (C2/11-12(II)), I said the following:

 

‘89. In GIA/2986/2011 [2012] UKUT 190 (AAC), Upper Tribunal Judge Jacobs said the following, at paragraph 20, when the discussing the principles relevant to the binding effect of one decision of an appeal tribunal at first-tier, on another:

 

‘… the tribunal is careful to say that it is not bound by those decisions. That is right as a matter of principle and authority. See Hampshire County Council v JP [2009] UKUT 239 (AAC), [2010] AACR 15, at [15] and West Midland Baptist (Trust) Association (INC) v Birmingham Corporation [1968] 2 QB 188 at 210 and 225. Previous decisions are of persuasive authority and the tribunal is right to value consistency in decision-making. However, there are dangers in paying too close a regard to previous decisions. It can elevate issues of fact into issues of law or principle. …’

 

90. In Hampshire County Council v JP [2009] UKUT 239 (AAC), [2010] AACR 15, a Three-Judge Panel of the Upper Tribunal stated, at paragraph 15:

 

‘… a decision of a First-Tier Tribunal does not bind anyone except the parties to the particular case being decided …’

 

91. Similar remarks were made by Upper Tribunal Judge Wikeley at paragraph 51 of his decision in Secretary of State for Work & Pensions v AM ([2010] UKUT 428 (AAC)).

 

103. Accordingly, while empathising with a degree of injustice which the appellant might feel at inconsistent treatment, I also cannot accept that the decision of the appeal tribunal was in error of law on the basis of this submitted ground.

 

Disposal

 

104. The decision of the appeal tribunal dated 23 April 2013 is not in error of law. Accordingly, the decision of the appeal tribunal that the appellant is not entitled to Industrial Injuries Disablement Benefit (IIDB) from and including 20 September 1976 is confirmed.

 

 

(signed) K Mullan

 

Chief Commissioner

 

 

 

10 December 2014

Appendix - the appeal tribunal’s assessment of the common issues

 

1. ‘At the outset of the hearing it was agreed that (the claimant) is not entitled to a claim for occupational deafness. (The claimant) was initially advised that his claim for 26 incidents during his service as a police officer could not succeed as they were part of a process which resulted in deafness. However (the claimant) on Departmental advice claimed for two incidents on 03.07.1980 and the incident on 02.10.1981 at Strabane.

 

2. The Department decided that these incidents were industrial accidents.

 

3. (The claimant) had audiometric testing carried out on 31.08.2010 which used industrial deafness forms as this was the first case examined for deafness due to industrial accident. (The claimant) was to be examined on 13.10.2010 at Department Medical Support Service. This examination did not take place. He was subsequently examined on 09.11.2010. The examining doctor found that the accidents of 03.07.1980 and 02.10.1981 resulted in no loss of faculty.

 

4. On 12.11.2010 the Department disallowed the claims for Disablement Benefit arising out of these claims. (The claimant) asked for the case to be looked at again and provided a report from Mr P Consultant ENT Specialist dated 11.02.1992.

 

5. After much confusion in the Department it was agreed that (the claimant) could claim for other incidents and (the claimant) provided written confirmation of 24 additional claims. He also provided a report from Mr D, Consultant ENT Specialist regarding an examination on 21.01.2010. The Department decided that these additional 24 incidents were also industrial accidents. (The claimant) was examined in relation to these accidents on 14.06.2011 and it was decided that these additional accidents resulted in no loss of faculty. The medical advisors looked again at the incidents of 03.07.1980 and 02.10.1981. The medical advisors recommended that the accident of 03.07.1980 had caused a loss of faculty of reduced and painful aural sensation with a degree of disablement of 2% from 01.01.1991 for life. They did not recommend a change of decision for the incident of 02.10.1981.

 

6. The Department decided on 22.06.2011 that the 24 incidents resulted in no loss of faculty and revised the decision of 12.11.2010 to assess disablement arising from the account of 03.07.1980 at 2% but not the decision for the accident on 02.10.1981. Disablement Benefit was not payable in respect of any of these accidents.

 

7. (The claimant’s) appeals continue against the revised decisions and the decision in respect of the 24 other industrial accidents.

 

8. The Tribunal had to consider these cases on the basis of Schedule 6 of the Contributions and Benefits (NI) Act 1992 which states that “the extent of disablement should be assessed by reference to the disabilities incurred by the Claimant as a result of the relevant loss of faculty, as compared with a person of the same age and sex whose physical and mental condition is normal”.

 

9. (The claimant) argued to the Tribunal that the decision of the Department was flawed because of the focus on occupational deafness and confusion about the distinction between injury by “process” and “accident”. It is clear from the appeal papers that the Department had no experience of dealing with these cases when (the claimant’s) case began and several errors took place during the decision making process including the use of incorrect forms and giving (the claimant) incorrect advice. However, the Tribunal looking at all the information and having had the benefit of hearing from Mr Crawford at the hearing, found that the Department did correct these errors along the way and ultimately arrived at decisions in these accidents based on accident rather than process.

 

10. The Tribunal was aware that in a case of deafness developing out of many individual incidents it is very difficult to attribute a loss of hearing to particular events over a considerable period of time. The Tribunal also noted the confusion involved with the medical examinations during the course of this case but found that the examination of 14.06.2011 dealt with the incidents on the correct basis.

 

11. (The claimant) argued that the Department based their decisions on the hearing test of 31.08.2010 which was conducted at Royal Victoria Hospital. He told the Tribunal that they were in “mode of process” and that the report which said that the audiometry machine had been calibrated was inaccurate as the date given for the calibration was after his examination. In respect of this the Tribunal found firstly that the Department did not rely solely on this report and neither has the tribunal in making its assessment. We also accepted the written evidence from Mr A in his letter of 13.09.2011 in respect of the machine’s calibration annually.

 

12. One of the arguments presented by (the claimant) was the use of occupational deafness tables by the Department to assist in assessing his accidents when the chart is for use in occupational deafness. (The claimant) felt that in using these tables from the Departmental handbook he was being disadvantaged. The Tribunal considered this argument but found that the tables are for Departmental guidance only. They are based on the Industrial Injury Advisory Council’s advice that hearing loss over 1, 2 and 3 kHz affect the ability to discriminate speech and that this is the most disabling aspect of noise-induced hearing loss and is therefore relevant to the assessment of deafness in an Industrial Injuries cases. The Tribunal found therefore that the Department were entitled to use the table as part of the decision making process to assist in assessing the degree of disablement resulting from hearing loss sustained as a result of industrial accidents. However we also found that this could not be used exclusively but in conjunction with all the available evidence and is not binding on us.

 

13. (The claimant) referred to the fact that some of his colleagues had been treated differently and had been awarded Industrial Injury Benefit. Mr Crawford conceded that earlier cases may have been treated on a different basis but that these would be looked at again. The Tribunal found that there was no evidence presented to us of the decisions in other cases and we were concerned with the decisions in (the claimant’s) case only and base our decisions on the evidence in these cases alone.

 

14. The Tribunal went on to consider the basis for the decisions in (the claimant’s) case. The Tribunal is aware of the legislative provision set out above. The Tribunal was also mindful that there were no Commissioners’ decisions on the assessment of disablement in hearing loss cases arising from industrial accidents. The unreported decision CI/5029/02 did however state that conversational voice testing is the starting point for assessing the degree of disablement. (The claimant) was dissatisfied with the conversational voice examination in his cases stating that it was totally unscientific and of no evidential value. However the Tribunal have available the results of audiograms from Mr P of 11.02.1992, Mr D’s report of 24.05.2010 and the Royal Victoria Hospital’s audiogram of 31.08.2010 as well as the results of the Departmental examinations of 13.10.2010 and 14.06.2011.

 

15. The Tribunal went on to assess the available evidence and then consider how it related to the industrial accidents. The Tribunal found that it was appropriate to make an assessment resulting from the accidents on 03.07.1980 and 02.10.1981 individually. The other accidents arose out of weapons training, helicopter flights, crowd control and riot training are considered in conjunction with each other.

 

Assessment of Evidence

 

16. As stated above the Tribunal had available the reports of Mr P (11.10.1992), Mr D (24.05.2010), the Royal Victoria Hospital’s audiogram (31.08.2010) and the Departmental Medical Officer’s examinations. The Tribunal also had the evidence of (the claimant) that he is affected by hearing loss. That he worked his way up through the ranks to the role of Chief Superintendent taking redundancy in 2001. (The claimant) then worked as a part-time court official and was later fitted with a hearing aid. The Tribunal was mindful of the relevant legislation and viewed the charts presented by the Department as being for guidance only.

 

17. We did however take note of the findings of the audiograms in particular. We found that Mr P’s report most closely related to the last exposure to noise which (the claimant) claimed for. The Tribunal note Mr P’s audiogram finding which while not being specific does give a relevant band of hearing loss for consideration by the Tribunal.

 

18. We noted the hearing thresholds to be between 10-25 db in the right ear and 10-20 db in the left ear being “somewhat worse at higher frequencies, consistent with noise exposure”. We also noted that ear protection was advised when shooting and that (the claimant) denied having tinnitus at that time. The Tribunal noted that the audiogram findings on (the claimant) on 21.01.2010 were worse and that Mr D attributed some of the hearing loss to ageing. We also noted Mr D’s comments regarding tinnitus. The Tribunal also took into account the audiogram and findings of the Royal Victoria Hospital’s report of 31.08.2010. The Tribunal noted that both Mr P’s report and Mr D’s report were available to the Medical Officer on 14.06.2011.

 

19. On the basis of these reports, audiograms and (the claimant’s) evidence the Tribunal found as follows: -

 

Accident 03.07.1980

 

20. This accident took place at Plumbridge Police Station when a large lorry exploded near (the claimant) knocking him off his feet. (The claimant) was unable to hear after the incident but remained at the scene and rendered assistance. He did not report any injury and took no time off work. The symptoms did resolve themselves. The Medical Officers who examined (the claimant) on 14.06.2011 made an assessment of 2% disablement resulting from a loss of faculty of difficulty hearing, especially with background noise. The assessment of 2% was assessed on the scale set out at document 115 entitled by audiometric evaluation – Scales of hearing loss as required on pure tone audiogram on the basis of the audiogram of 31.08.2010.

 

21. The Tribunal found that the Medical Officers had taken into account (the claimant’s) oral evidence of how his hearing is affected, the available audiometric evidence, the nature of the accident that he was involved in and the effect of that as found by them on audiometric tests. The Tribunal found that this was a reasonable assessment taking into account all of the above evidence. These cases of reported industrial accidents where hearing loss takes place gradually over a number of years are difficult to assess. We were satisfied however that this was not purely an assessment made on the basis of the scale provided but included an overall assessment of the available evidence. We were satisfied that it is reasonable to take into account audiometric evidence and considered how that evidence would impact on (the claimant’s) life. There was no offset for ageing made in this case and the Tribunal accept the Medical Officer’s assessment in respect of this. The Tribunal noted that no assessment was made for tinnitus on the basis of the comments made by Mr P that in 1992 (the claimant) denied having tinnitus which was over seven years after last noise exposure. The Tribunal found that when (the claimant) ceased to be exposed to excessive noise in accidents it is reasonable not to equate his later onset of tinnitus to the accidents given the period of time which had elapsed. We made this finding based on the recommendation of the Industrial Injury Advisory Council which states in a recent report “Tinnitus which starts more than a year after exposure to noise has ceased is unlikely to be due to noise”. The Tribunal accept that (the claimant) has tinnitus now but are unable to relate it to his industrial accident. Also the Tribunal had the opportunity to view (the claimant’s) Altnagelvin hospital notes subsequent to the hearing. There was nothing in those hospital notes which assisted us making a finding in respect of tinnitus arising out of this or any other of his industrial accidents.

 

22. For these reasons the Tribunal found that the decision of the Tribunal in respect of this industrial accident should be upheld.

 

Conclusion

 

23. At the end of the hearing it was agreed that the decision of the Tribunal in these cases would be deferred until the Tribunal had sight of (the claimant’s) Altnagelvin Hospital records. The parties agreed that they did not wish to see these unless there was something relevant to the cases before the Tribunal. The Tribunal met and viewed the hospital records but there were no entries which would alter the decision of the Tribunal or which the panel considered needed to be drawn to the attention of the parties.

 

24. In conclusion therefore the Tribunal did not dispute that (the claimant) suffered hearing loss as a result of noise exposure at work. However we were mindful of the legislation governing these cases which inherently involves the use of some flexibility when assessing disablement. This was made particularly difficult in these cases firstly because of the initial confusion in both the Department and Medical Support Services about the fact that these incidents were to be considered as individual industrial accidents and not injury by process. Secondly the number of incidents and the time scale of them and since then presented further difficulties. However the Tribunal considered in detail all the arguments presented by (the claimant) and the correspondence between himself and Mr Crawford. The Tribunal was satisfied that the decisions of the Department based on the Medical Officer’s findings were reasonable. The Tribunal also found that the Medical Officers were entitled to refer to the Departmental internal guidance tables in conjunction with all the available medical evidence and (the claimant’s) oral evidence regarding the effects of these incidents and his subsequent hearing loss on him. We do not accept that the Department should be precluded from using these tables for guidance even though they were designed for occupational deafness. Our reasoning in this regard is that the Industrial Injury Advisory Council states that these areas of loss of hearing are the ones which relate to speech discrimination and are therefore relevant to the most disabling aspects of noise induced hearing loss. Also it was our view that the use of the tables for guidance in conjunction with all the other available evidence enables some degree of consistency and fairness in the assessment of these difficult cases.

 

25. For all the reasons stated the decisions of the Department are therefore upheld.’