Northern Ireland - Social Security and Child Support Commissioners' Decisions

GM-v-Department for Social Development (II) [2015] NICom 11

 

Decision No: C29/13-14(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 30 January 2013

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1. The decision of the appeal tribunal dated 30 January 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 14 September 2013, is confirmed.

 

2. The case of JMcK v Department for Social Development ([2014] NICom 45, C3/13-14(II)) concerned issues which were similar to those arising in the instant appeal. In that case, I stated the following, in paragraphs 2 and 3 of my decision:

 

‘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 …

 

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.’

 

3. I am of the view that these comments are relevant to the present appeal. I would replace the word ‘inadequacies’ in the final quoted sentence in paragraph 2 above with the word ‘inconsistencies’ in relation to the appellant in the instant case. The remaining remarks are equally relevant, however, to his character and impetus in pursuing his appeal.

 

Background

 

4. On 11 August 2011 a claim form to IIDB, which had been signed by the appellant on 1 August 2011, was received in the Department. The claim to IIDB was stated to be on the basis of hearing loss and tinnitus arising from various activities associated with the appellant’s former occupation. Attached to the claim form was a copy of a medical report from a Consultant ENT Surgeon dated 10 November 2007.

 

5. On 12 August 2011 an officer of the Department wrote to the appellant seeking replies to various questions in connection with his claim to IIDB. A response was received in the Department from the appellant on 23 August 2011. Attached to the response was a copy of a report by a Consultant Otolaryngologist dated 14 May 2009 and in respect of an examination conducted on 27 March 2009. On 25 August 2011 an officer of the Department spoke to the appellant by telephone.

 

6. On 25 August 2011 a decision-maker of the Department decided that the appellant had sustained an industrial accident on 1 June 2003. On 31 August 2011 the appellant was notified of the decision dated 25 August 2011 and that his papers had been forwarded to the Department’s medical advisers for the purpose of arranging a medical examination. In paragraph 8 of section 4 of the appeal submission prepared for the appeal tribunal hearing, the following is recorded:

 

‘A memo was prepared by the decision maker and was included in the papers that were referred to the Department’s medical advisers, in order to explain the decision maker’s grounds for the decision to accept that (the claimant) sustained an industrial accident on 01/06/03 and in order to explain the basis upon which the degree of any disablement arising from the industrial accident should be assessed.’

 

7. The appellant was examined by a Departmental medical adviser on 23 September 2011. Copies of the report of the medical examination, hand-written and typed, are attached to the original appeal submissions as documents 10 and 11.

 

8. On 13 October 2011 a decision-maker issued a decision, a copy of which was attached to the original appeal submission as document 12. In summary the decision is as follows:

 

‘(The claimant) is suffering from a loss of faculty as a result of the relevant accident.

 

The relevant loss of faculty is impaired hearing and tinnitus.

 

The degree of disablement is 2 percent.

 

The period of the assessment commences on 14/09/2003 and continues for life.

 

The assessment is final.

 

…

 

(The claimant) is not entitled to Disablement Benefit from and including 14/09/2003 because after the expiry of 90 days … beginning with the industrial accident on 01/06/2003, the extent of the loss of faculty amounts to less than 14 per cent.’

 

9. The appellant was notified of the decision dated 13 October 2011 on 17 October 2011. In three separate telephone calls, the appellant requested an explanation of the Department’s decision, asked for the decision to be looked at again and requested a copy of the report of the examination conducted by the Departmental medical adviser. A copy of the relevant report was forwarded to the appellant on 4 November 2011. On 4 November 2011 the decision-maker wrote to the appellant indicating that the decision dated 13 October 2011 had been looked at again but had not been changed. On 11 November 2011 an appeal against the decision dated 13 October 2011 was received in the Department.

 

10. Attached to the original appeal submission, as document 19, is a copy of a memorandum, dated 9 December 2011, from a Departmental Officer to the Director of the Department’s Medical Support Services seeking advice on certain issues which had been raised by the appellant in his appeal form. Also on 9 December 2011 the same Departmental Officer wrote to the appellant explaining the post-decision action which had been taken. In a memorandum dated 18 January 2012, and a copy of which was attached to the original appeal submission as document 21, a Departmental medical adviser replied to the memorandum dated 9 December 2011.

 

11. The appellant telephoned the Department on 1 February 2012 and followed up the conversation with a letter of complaint on the same date. The complaint was addressed to the Manager of the Industrial Injuries Branch of the Department.

 

12. On 6 February 2012 a decision-maker of the Department revised the decision dated 13 October 2011 and decided that the appellant was not entitled to IIDB from and including 14 September 2003. The appellant was notified of the revised decision on 7 February 2012 and was also advised that his appeal would continue against the decision as revised.

 

13. On 7 February 2012 the Customer Services Manager of the Social Security Agency’s Incapacity Division replied to the appellant’s formal letter of complaint.

 

Proceedings before the appeal tribunal

 

14. The appeal was first listed for oral hearing on 9 May 2012. The appellant was present and was represented. The Department was not represented. The appellant provided a written submission for consideration by the appeal tribunal together with a copy of correspondence dated 29 March 2012 to him from the Freedom of Information Officer of the Department for Social Development (DSD). The appeal was adjourned with the stated reasons for the adjournment being that the appellant wished to provide further evidence to the appeal tribunal.

 

15. The substantive oral hearing of the appeal took place on 30 January 2013. The appellant was present and was represented. The Department was not represented. The appellant provided a further written submission and the record of proceedings for the appeal tribunal hearing notes that the appeal tribunal had before it the appeal submission including the papers submitted at the earlier adjourned hearing.

 

16. The appeal tribunal disallowed the appeal and confirmed the decision of the Department dated 6 February 2012.

 

17. On 17 September 2013 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service (TAS). On 1 October 2013 the application for leave to appeal was refused by the legally qualified panel member (LQPM).

 

Proceedings before the Social Security Commissioner

 

18. On 1 November 2013 a further application for leave to appeal was received in the Office of the Social Security Commissioners. On 13 January 2014 observations on the application were requested from Decision Making Services (DMS). In written observations dated 24 January 2014, Mrs Hulbert, for DMS, opposed the application on the grounds submitted by the appellant. Written observations were shared with the appellant on 27 January 2014.

 

19. On 21 March 2014 I granted leave to appeal and directed an oral hearing of the appeal. The oral hearing took place on 1 May 2014. The appellant was present. The Department was represented by Mrs Hulbert. Gratitude is extended to both representatives for their detailed and constructive observations, comments and suggestions. There then followed a delay in the promulgation of this decision. That delay was due, in part, to the Social Security Commissioners considering a group of 26 other appeals where the issues were similar to those arising in the present appeal.

 

Errors of law

 

20. 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?

 

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

 

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

 

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

 

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

 

(iv) giving weight to immaterial matters;

 

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

 

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

 

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

 

The relevant legislative background

 

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

 

23. 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 …’

 

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

 

25. 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.’

 

26. 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.’

 

27. 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.

 

28. 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.’

 

29. 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.’

 

30. In Schedule 2, item 6 is as follows:

 

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

 

31. 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

 

32. 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.’

 

33. 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.’

 

34. 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.

 

35. 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

 

36. 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 Department’s Medical Officers:

 

‘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.’

 

37. 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 appellant

 

38. In the application for leave to appeal and in his further written and oral submissions the appellant has asserted that the decision of the appeal tribunal was in error of law on the basis of the following grounds:

 

(i) the use of tables by the medical officer and the decision-maker of the Department for the assessment of hearing loss which were designed for claims to IIDB arising from occupational deafness and which were inappropriate for claims to IIDB, such as his own, based on disablement arising through an accident; and

 

(ii) an inconsistent approach to the assessment of eligibility for IIDB by the medical officer, the Departmental decision-maker and by the ‘Appeals Service’ in its handling of individual appeals.

 

39. I address each of those grounds, as follows:

 

The use of particular tables for assessment of hearing loss and the resultant assessment of disablement

 

In his written submission to the appeal tribunal, the appellant submitted that he had made a ‘freedom of information’ request to the Department of Social Development, asking two questions, as follows:

 

‘(i) the number of applicants who have been awarded disablement benefit for hearing loss as a result of an Industrial Accident in each of the last three calendar years – 2009, 2010, 2011; and

 

(ii) a copy of the audiometric tables that were used earlier to assess entitlement to hearing loss disablement benefit. As you know a copy of the tables used to assess my case were provided to me in earlier correspondence.’

 

40. The appellant also provided a copy of the response to his information request. This was in the form of correspondence from the Department of Social Development dated 29 March 2012 attached to which was a copy of two audiometric tables.

41. The statistical element of the response to the information request showed that there had been no awards of IIDB in respect of hearing loss arising from an industrial accident in the years 2009 and 2010 but that there had been 11 such awards in 2011. In response to the question concerning the audiometric tables, the response noted:

 

‘The current table used by health care professionals (Table 1), whose role is to use their experience, expertise and training to assess the degree of disablement due to an industrial accident, is the only table that exists for that specific purpose.

 

Some health care professionals may have used a table for assessing the degree of disablement resulting from the prescribed disease occupational deafness (Table 2). However that table only provides for assessments of disablement starting at 20 per cent, corresponding to average hearing loss over the 1, 2 and 3 kilo Hertz frequencies of at least 50 decibels in each ear. Accordingly if that table was used to assess the degree of disablement due to hearing loss resulting from an industrial accident and the average hearing loss was less than 50 dB, it would have been necessary for the health care professional to use their experience, expertise and training to assess the degree of any disablement within the range from 0-19 per cent.’

 

42. As was noted above, copies of the two tables were attached to the relevant correspondence.

 

43. At paragraph 14 of the original appeal submission which was before the appeal tribunal, the Departmental decision-maker stated the following:

 

‘On 04/11/11 the Department wrote to (the claimant) confirming that it had looked again at the decision that was sent to him on 17/10/11 but had not changed it. The reasons why the decision had not been changed were explained in the Department’s letter. (see document 17) (A copy of the table referred to in the letter and that had been enclosed with the letter is attached as document 17A).

 

NB The table that was enclosed with the Department’s letter is referred to for guidance by the Department’s medical advisors in assessing the percentage of disablement for hearing loss resulting from industrial accidents.

 

As explained in the Department’s letter, when using the table, the scales included in the table are considered in relation to the levels of hearing loss in each ear, averaged over the 1, 2 and 3 kHz frequencies. As also explained in the Department’s letter, the significance of the 1, 2 and 3 kilo Hertz frequencies is that they are the frequencies that are predominantly used in speech discrimination, and difficulty in speech discrimination has been considered to be the most disabling characteristic of hearing loss affecting everyday life. These were the findings of the Industrial Injuries Advisory Council (IIAC) in their reports on Occupational Deafness. The relevant paragraphs from the IIAC’s latest report on Occupational Deafness – paragraphs 45-47 – are attached as document 17B.

 

The Industrial Injuries Advisory Council is a statutory body whose roles include advising the Secretary of State on the prescription of industrial diseases and providing advice to the Secretary of State on other matters relating to the Industrial Injuries Disablement Benefit Scheme.

 

Although (the claimant) claimed disablement benefit for an industrial accident rather than the prescribed disease Occupational Deafness, the Department considers that the Industrial Injuries Advisory Council’s conclusions that difficulty in speech discrimination has been considered to be the most disabling characteristic of hearing loss affecting everyday life and that the 1, 2 and 3 kilo Hertz frequencies are the frequencies that are predominantly involved in speech discrimination would have relevance in assessing the extent of disablement resulting from hearing loss caused by industrial accidents as well as the extent of disablement resulting from Occupational Deafness.

 

The table includes some notes on assessing disablement in relation to CV (conversational voice) testing. Further notes on the use of assessing disablement on the basis of conversational voice testing from the Department’s Support Services handbook on the Principles of Assessment of disablement are attached as document 17C.

 

It is also pointed out in the notes in the table that conditions such as tinnitus, suppuration and vertigo may warrant an addition to the assessment. Notes on the assessment of disablement in relation to tinnitus from the Handbook referred to above are attached as document 17D. (There are no notes in the Handbook on the assessment of disablement in relation to suppuration and vertigo.)””

 

44. In the original appeal submission, the issue of the assessment of the degree of disablement resulting from industrial accidents was addressed by the Department’s decision-maker in paragraphs 10 to 26 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. The decision-maker has set out further principles on the assessment of the degree of disablement resulting from hearing loss and tinnitus. The decision-maker 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 decision-maker, 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 evidence contained within the report of the examination by the Medical Adviser on 23 September 2011.

 

45. In a further section headed ‘Grounds of Appeal’ the decision-maker addresses the contentions made by the appellant concerning the evidence which he had submitted in the form of two reports from a Consultant ENT Surgeon dated 10 November 2007 and a report by a Consultant Otolaryngologist dated 14 May 2009 and in respect of an examination conducted on 27 March 2009. The decision-maker undertook a thorough analysis of that evidence in the context of the decision which had been made on the appellant’s claim to IIDB. The decision-maker also undertook a rigorous assessment of the appellant’s submissions concerning the audiometric table which had been utilised in his case. 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.

 

46. 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.

 

47. In paragraphs 32 to 35 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.

 

48. 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.’

 

49. 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. What did the appeal tribunal decide?

 

50. In the statement of reasons for its decision, the appeal tribunal set out the following on this key issue:

 

‘The issue following on from that is how is that assessment to be made? In reaching its decision the department had two medical reports from Mr D and Mr S available together with the departmental medical officer’s examination. Commissioner Fellner in an unreported decision CI/5029/02 suggested as a guideline that the conversational voice was an appropriate starting point but that it could be informed by and cross referenced against the audiograms.

 

The tribunal was satisfied that in this case two audiograms were available which arrived at similar findings and we accepted, in that situation, there are a more accurate means of assessing hearing loss than conversational voice. We further accepted the argument that assessment over 1, 2 and 3 Khz was particularly relevant as this related to areas where hearing loss would have the most impact in everyday life such as speech discrimination (we took into account the findings of the Industrial Injuries Advisory Council reports on occupational deafness in respect of this because of the relevance to industrial accidents but also being aware that they were drawn up for the purposes of occupational deafness).

 

The tribunal considered not only the audiometric testing, but the findings on examination of Mr D and Mr S. The tribunal found these two reports to be relevant as they were nearer in time to the agreed date of industrial accident than the position now. The tribunal found that as (the claimant) ceased to be exposed to loud noise at work on that date without protection any subsequent hearing loss would be due to the ageing process and not to noise exposure as this does not continue to deteriorate when the exposure ceases as explained in Mr D’s report and confirmed by Mr A at the hearing. We referred first to Mr D’s report and accepted the finding that (the claimant) had noise induced hearing loss together with an element of age related loss. We noted at the time (the claimant) had not sought a hearing aid although he works in a full-time administrative job. In respect of Mr S's report in 2009 we firstly noted the similarities between the audiogram at this examination and the one seen in Mr D’s report. We also noted that at that time Mr S stated that a hearing aid was not warranted and that Mr S stated “overall the hearing loss is mild in severity".

 

Returning to (the claimant's) complaints about the Department referring to tables when making their assessment, the tribunal noted that the tables concerned are contained in a handbook used to provide guidance in assessing disablement for industrial injuries as they suggest percentages for assessing disablement at different levels of hearing loss.

 

The tribunal found that these tables are for guidance only. There are no other tables available that we are aware of and accept the department’s submission that no other tables exist except the one used to assess occupational deafness which is not relevant in this case. We found that the examining medical officer had available the two reports referred to above and took them into consideration in reaching his conclusion.

 

The tribunal found that it is appropriate to refer to tables as a means of assisting assessments of deafness in industrial accidents and to assist in ensuring some form of consistency. However we are aware of the wording of Schedule 6 which requires the tribunal to compare this case with a person of the same age and sex whose physical and mental condition is normal. We are satisfied that the audiograms provide reliable independent evidence of the levels of hearing loss and by assessing them over the 1, 2 and 3 KHz levels this gives an accurate view of how (the claimant's) hearing loss would affect his speech discrimination ability which is a fundamental feature and is relevant to all assessment under Schedule 6. We also took into account (the claimant's) oral evidence of the effect of this hearing loss in his day-to-day life.

 

The tribunal considered also the table referred to (the claimant's) level of disability as established on the audiograms and found that for 1 2 3 Kg frequencies Mr S made an assessment of hearing loss in the right ear averaging 23.33 decibels and 21.66 decibels in the left ear well below the level of hearing loss required for a finding above 0% disablement.

 

Taking all these factors into account we therefore confirmed the Department's decision bearing in mind the relevant legislative test.

 

The Tribunal went on to consider the assessment for tinnitus which was reduced from 2% to 0% in the revised decision. The tribunal took into account the fact that both Mr D that Mr S described (the claimant's) level of tinnitus as mild. We also referred to the Industrial Injuries Handbook 2 for medical advisers which again relates to prescribed diseases but gives guidance as to the assessment of tinnitus including the classification of tinnitus and the percentage disablement to be ascribed to it. The tribunal, having taken into account the available medical evidence and (the claimant's) oral evidence to us of the level of tinnitus, were prepared to be assisted by the percentages set out in the guidance and find that (the claimant's) mild tinnitus attracts 0% disablement.’

 

51. 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.

 

52. 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.

 

53. 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.’

 

54. The appeal tribunal has, in my view, placed the use by the Department of the relevant table 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 D and Mr S, 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

 

55. Before the appeal tribunal, the appellant submitted that claims made to IIDB by one of his colleagues had been treated differently and that despite him having ‘lesser hearing loss and similar tinnitus’ he had been assessed earlier and had been awarded an entitlement to IIDB. The appellant also noted that the ‘freedom of information’ had indicated that in 2011 there were 11 claimants who were awarded entitlement to IIDB. The appellant also submitted that he was ‘… aware that some of the appellants were referred to the Royal Victoria Hospital for a further hearing test while others were not.’

 

56. 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. The appeal tribunal noted that the appellant had been invited to present evidence in connection with this submission but had declined to do so as he did not wish to put the awards made to others in danger. As an aside, at the oral hearing before me, the appellant reiterated his concern at interference with awards made to others if details of such awards were made available in the present proceedings. I find the appellant’s concerns in that regard to be wholly understandable.

 

57. 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. In this regard, it stated:

 

‘However the tribunal’s jurisdiction is to consider (the claimant’s) appeal against the decisions taken by the Department in his case and we are satisfied that these decisions were properly made and were taken in line with the relevant legislative provisions. We also found that the Department were entitled to refer to the tables set out for Departmental guidance and consider that their use as part of the decision making process assist in making consistent decisions in appropriate circumstances. We were therefore unable to proceed further in investigating other cases.’

 

58. 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 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)).””

 

59. 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

 

60. The decision of the appeal tribunal dated 30 January 2013 is not in error of law. Accordingly, the decision of the appeal tribunal that the appellant is not entitled to IIDB from and including 14 September 2013 is confirmed.

 

 

(signed): K Mullan

 

Chief Commissioner

 

 

 

4 March 2015