UK Social Security and Child Support Commissioners' Decisions

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[1974] UKSSCSC RI_14_1974 (08 October 1974)

Decision No. R(I) 14/74 8.10.74

INDUSTRIAL DISABLEMENT BENEFIT

Prescribed Disease – date of development where

Disablement benefit claimed

On 10.2.72 the claimant, an electrician employed on building sites claimed disablement benefit from an unspecified date in 1956 in respect of Prescribed Disease number 42. In accordance with the normal practice adopted in this type of case the insurance officer gave a decision in connection with fixing the "date of development" of the disease, having regard to regulation 6(2)(b) of the National Insurance (Industrial Injuries) (Prescribed Diseases) Regulation 1959. His decision was given on 18.4.72 to the effect that the claimant was disqualified for receiving disablement benefit for the inclusive period 1956 to 10.11.71 on the grounds that the claim was not made within the time limits and he had not proved that there was continuous good cause for the delay in making the claim. The decision dated 18.4.72 was not communicated to the claimant until 25.8.72 at the same time as notification f the award of a disablement gratuity for the inclusive period 11.11.71 to 11.11.73 based on a medical board report and findings dated 22.8.72. In consequence of the insurance officer's decision dated 18.4.72 the medical board did not consider the diagnosis and disablement questions for any period earlier than 11.11.71.

Held that:

notification of the decision of an insurance officer should be given to the claimant as soon as reasonably possible (paragraph 14(b));

by virtue of regulation 5 of the National Insurance (Industrial Injuries) (Claims and Payments) Amendment Regulations 1973 claims for disablement gratuities are not subject to the time limits laid down in regulation 12 of the National Insurance (Industrial Injuries) (Claims and Payments) Regulations 1964 and schedule 2 thereto (paragraph 6);

the claimant was disqualified for receiving disablement pension, but not a disablement gratuity for any period before 10.11.71 and that a further reference should be made to a medical board of the diagnosis and disablement questions in relation to the period prior to 10.11.71 (paras 1 and 17).

My decision is that the claimant is disqualified for receiving disablement pension, but not disablement gratuity, for any period before 10^th November 1971.

The claimant has appealed to the Commissioner from a majority decision of the local tribunal upholding a decision of the local insurance officer in the following terms:-

"The claimant is disqualified for receiving Disablement Benefit from 1956 to 10.11.71 (both dates included) because his claim for that period made on 10.2.72 was not made within the time limit set out in regulations and he has not proved that there was continuous good cause for the delay in making the claim". (I think that the terminal date should have been 9.11.71).

I heard the appeal at an oral hearing at which the claimant attended and gave evidence. The oral hearing took place in two parts because discussion of an important legal point had been omitted, and I re-convened the hearing.

The claimant, now a married man aged 35, left school in December 1955 and became employed as an electrician on building sites. In February 1956 he began to suffer from a skin complaint which his doctor then diagnosed as "eczema". He has since changed his employment twice in efforts to avoid skin irritants, but the complaint has persisted and affects his hands. On 10^th February 1972 he claimed disablement benefit from an unspecified date in 1956 on the ground that he had since then been and was still suffering from prescribed disease No. 42 (non-infective dermatitis of external origin). This was his first claim in respect of the disease and it has been partly successful. On 25^th August 1972 he was awarded a disablement gratuity of £75.55 following the report and findings of a medical board dated 22^nd August 1972, advising that he had been suffering from prescribed disease No. 42 since 11^th November 1971 and making a provisional assessment of his disablement of 7 per cent for the period from that date to 11^th November 1973. The decision awarding the gratuity to the claimant was dated 25^th August 1972 and was notified to the claimant at the same time as the decision quoted in paragraph 2 above. This was the first occasion on which the claimant was informed of any disqualification.

The claimant did not claim injury benefit or make any earlier claim to disablement benefit because he did not know that he could do so. His circumstances had been such that he was never brought into contact with a Youth Employment Officer or other person who might have enlightened him of his rights under the industrial injuries insurance scheme, and he was unaware that he could claim for dermatitis under that scheme. I have some sympathy for him because it is expecting a lot of people that they should suspect that a scheme mainly designed to deal with accidental injury, and described as an injury scheme, may also deal with diseases which develop otherwise than by accident and are not injuries in the sense in which that word is commonly used. On the other hand, the claimant was told by his doctors as early as 1956 that his condition arose out of his work. Moreover, he claimed and was paid sickness benefit many times, but failed to react to the printed introduction of part B of form Med 3, the medical certificate, which contains an invitation to the reader to make an appropriate entry if he claims that his incapacity "is due to an INJURY WHILE WORKING FOR AN EMPLOYER or to a PRESCRIBED INDUSTRIAL DISEASE ….". In any case, a delay of a period so long as 16 years would require extraordinary circumstances to justify a finding that the claimant had "good cause" throughout its entire length; and in this case there are no facts enabling such a finding to be made in relation to a part of the 16 years immediately preceding the claimant's claim.

In my judgment it is impossible to find that the claimant had "good cause" for his delay, and I agree with the finding of the majority of the local tribunal on that point. Accordingly, If and so far as the claimant is subject to disqualification for receiving disablement benefit for the period 1956 to (and including) 9^th November 1971, on the ground that his claim was not made within the prescribed time limit, he must be disqualified. However, he may not be subject to such disqualification. In my view understandably, this point was not referred to by either of the insurance officers concerned with this case or by the local tribunal.

Where the extent of an insured person's disablement is assessed at less than 20 per cent, disablement benefit takes the form of a gratuity instead of a pension: see National Insurance (Industrial Injuries) Act 1965, section 12(3). In the reported Decision R(I) 27/52, the Commissioner held that forfeiture (the term then used for disqualification) for the lateness of a claim to disablement benefit could not be operated in relation to an award of a gratuity as opposed to an award of a pension, and this ruling was followed subsequently. In the unreported Decision C.I. 13/71, the Commissioner, Mr Magnus, criticised R(I) 27/52, the reasoning of which he considered "manifestly faulty". I agree with his criticism, but it has been negated by regulation 5 of the National Insurance (Industrial Injuries) (Claims and Payments) Amendment Regulations 1973 [S.I. 1973 No. 905]. This regulation provides in effect that there shall be no time limit attached to a claim to disablement benefit which results in an award of a gratuity. The regulation perpetuates in the law governing the industrial injuries insurance scheme an anomaly which cannot have been intended when the scheme came into force in 1948, and for which I am unable to perceive any justification. However, R(I) 27/52 has received legislative sanction and I am obliged to follow it. Therefore I must hold that the local tribunal's decision requires amendment. The claimant is only to be disqualified for receiving disablement pension for the period 1956 to 9^th November 1971; he is not subject to disqualification for receiving a disablement gratuity in respect of that period.

As I have already mentioned the claimant was awarded a 7 per cent disablement assessment for a period beginning on 11^th November 1971. No medical authority has ever considered whether he had suffered from, or had a disablement by reason of, prescribed disease No. 42 at any time earlier than that date, and I have to discuss the procedure causing the omission. This procedure was touched upon in an unreported decision of the Commissioner, Mr Nelson, dated 15^th September 1969, to be found on Commissioner's file C.I. 224/1969, and he then called for an investigation of it; but the procedure was not fully explained to him and he only dealt with one feature of it. More recently, the procedure has been described in an unreported decision of the Chief Commissioner, C.I. 13/74, and he has stated that it does not comply with statutory requirements. The case dealt with by him in that decision concerned an insured person who suffered from pneumoconiosis, and disablement benefit has to take the form of a pension in pneumoconiosis and byssinossis cases: see regulation 35 of the National Insurance (Industrial Injuries) (Prescribed Diseases) Regulations 1959 [S.I. 1959 No. 467] (referred to below as "the P.D. Regulations"). Consequently the present case raises a question additional to any which the Chief Commissioner then had to consider, and I think it desirable to deal fully with the procedural aspects of the case.

Crucial to the understanding of the procedure to be discussed is the fact that for the purposes of the industrial injuries insurance scheme the date of development of a prescribed disease is an artificial concept; it is not necessarily the actual date of such development.

Regulation 6(2) of the P.D. Regulations provides as follows:-

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

(a) a claim for injury benefit, ….

(b) a claim for disablement benefit, the date of development shall be the day on which the claimant first suffered from the relevant loss of faculty on or after the appointed day; or, if later, the date as from which benefit could be paid on that claim; or

(c) a claim for death benefit, …."

The "appointed day" referred to in that passage is 5^th July 1948, which was the date when the National Insurance (Industrial Injuries) Act 1946 came into force. Thus, in the present case the date of development of the claimant's dermatitis, for the purposes of the P.D. Regulations, is the beginning date of the earliest period for which disablement benefit can be paid to him. Accordingly, if his entitlement to disablement benefit is subject to disqualification because of the lateness of his claim, and a disqualification is imposed, then the date of development must be the day after the terminal date of the disqualification period: see regulation 6(3) of the P.D. Regulations.

When a claim is made to benefit on the ground that the claimant is suffering or has suffered from a prescribed disease, then the question arises whether he is or has at any material time been suffering from the alleged or any other prescribed disease. This question is known as "a diagnosis question". Generally the insurance officer has to refer it forthwith for examination and report to one or more medical practitioners, but power is conferred on him in some circumstances to dispense with such a reference and to decide the question himself: see regulations 25 and 26 of the P.D. Regulations. When a diagnosis question arises for the first time in relation to a claim to disablement benefit, as opposed to a claim to injury benefit, then there also arise at the same time the disablement questions described in section 37 of the National Insurance (Industrial Injuries) Act 1965 as applied to prescribed diseases; that is to say the question whether the relevant prescribed disease has resulted in a loss of faculty, and if so at what degree the extent of the disablement resulting from that loss of faculty is to be assessed, and for what period. If an insurance officer forms the opinion that this situation has arisen then he must refer to one and the same medical board both the diagnosis questions and also the related disablement questions: see regulation 27(4) of the P.D. Regulations. That was done in this case.

The time limit attached to the making of a claim to disablement benefit is three months and, subject to the rule already mentioned concerning a gratuity, a person who makes such a claim outside that time limit is disqualified for receiving the benefit for any period earlier than three months before the date of the claim unless he proves that there was "good cause" for his delay: see regulation 12 of and Schedule 2 to the National Insurance (Industrial Injuries) (Claims and Payments) Regulations 1964 [S.I. 1964 No. 73]. Thus, when a claim of disablement benefit is made outside the three months' time limit on the ground that the insured person is suffering from a prescribed disease, no claim to injury benefit having previously been made, a choice of procedure is necessary. Logically, the first step would be to have the diagnosis question determined, and therefore also the disablement questions, all these questions being determined by the same medical board. However, if this was done and it were subsequently held that the insured person was disqualified for receiving disablement benefit by reason of the lateness of his claim, at least part of the decisions of the medical board would prove to have been unnecessary; and their time would have been spent to no avail in considering evidence relating to the disqualification period. On the other hand, if the disqualification question is determined first by the insurance officer, there may be a considerable delay before a medical board can deal with the case, because the insured person may exercise his rights of appeal from an adverse decision on this question. Such delay is undesirable both because it can lead to the weakening or loss of evidence and also because in the meantime the insured person receives no benefit.

The choice of procedure made in the official practice reflects an attempt to avoid the disadvantages of both alternatives. The official practice is that the insurance officer decides, or purports to decide, the disqualification question first, but does not tell the insured person of his decision if it is adverse. On the other hand he uses his "decision" to fix the earliest permissible date for the artificial date of development of the prescribed disease and informs the medical board of that date. As the Chief Commissioner pointed out in C.I. 13/74 (paragraph 21), the insurance officer does not attempt actually to fix the artificial date of development of the disease; it is still open to the medical board to find that a later date was the date of development or that the insured person had not suffered from a prescribed disease at all. However, by informing the medical board of the date fixed by him, which is the earliest date from which disablement benefit can be paid to the insured person, he relieves them of the need to consider any period earlier than that date. This was the procedure followed in the present case.

The precise steps taken to deal with the claimant's claim to disablement benefit made on 10^th February 1972 were as follows:-

(a) The local insurance officer requested and obtained the claimant's explanation for his failure to claim the benefit earlier.

(b) He then purported to make a decision dated 18^th April 1972 in the terms of the decision quoted in paragraph 2 above, but did not communicate it to the claimant.

(c) After obtaining reports from two medical practitioners his next step was to refer to a medical board both the diagnosis and the disablement questions arising on the claim.

(d) In referring the diagnosis question to the medical board, the insurance officer put to them, in paragraph 16 of form BI 140, the question: "Has the claimant suffered from such a condition at any time [ie a prescribed disease or a sequela of a prescribed disease] since 11.11.71?" He thereby ensured that the board did not consider whether the claimant had so suffered at any time before that date.

(e) In referring the disablement questions to the medical board, the insurance officer altered the question (a) printed in paragraph 12 of form BI 118, and deleted question (b), so as to make the paragraph read:-

"(a) On what date does your assessment begin? It should not be before 11.11.71".

(f) The medical board gave their decision on 22^nd August 1972, and I have already described them in paragraph 3 above.

(g) On 25^th August 1972, the insurance officer gave his decision awarding £75.55 to the claimant consequent on the medical board's disablement decision. On the same date he notified the claimant of that award and also of the disqualification decision quoted in paragraph 2. I have been told that this was the decision dated 18^th April 1972, but I understand that the copy sent to the claimant (like the copy in the Commissioner's file) bore the date 25^th August 1972.

I thought at one time that the local insurance officer had made two disqualification decisions, one dated 18^th April and the other 25^th August 1972; but it may be that there was only one such decision and the copy sent to the claimant was given the wrong date. However that may be, I asked for an explanation of the procedure and received the following explanation in writing:-

"a. An explanation of the procedural steps in this case

The procedure followed was that following receipt of the claimant's explanation of the reason for lateness of his claim the insurance officer, on 18.4.72, imposed disqualification of benefit on the grounds that good cause for delay had not been shown.

b. Why was the insurance officer's decision of 18.4.72 not communicated to the claimant and another decision, dated 25.8.72, made?

It is not the practice of the Department to promulgate a decision relating to a late claim until the diagnosis question has been determined because it is only at that stage that the decision becomes meaningful. In the event of an unfavourable diagnosis decision the original insurance officer's decision would be of no value to the claimant as in any event disallowance must follow the diagnosis question and this would be the only decision promulgated to the claimant. In the case of a favourable diagnosis decision the medical board have before them the date from which benefit became payable as originally determined by the insurance officer, having regard to the provisions of regulation 6(2)(b) and 6(3) of the National Insurance (Industrial Injuries) (Prescribed Diseases) Regulations 1959 …. In such cases the decision awarding benefit is accompanied by the original adverse decision on late claim".

I refrain from direct comment on the above explanation save to state that it does not convince me that the procedure is justified. I respectfully and wholeheartedly agree with the view of the Chief Commissioner that this procedure does not comply with statutory requirements.

It is to be clearly understood that the procedure under discussion relates only to that minority of cases in which there is a late claim to disablement benefit in respect of a prescribed disease, and no claim to injury benefit has previously been made. There seem to me to be the following objections to the procedure:-

(a) In my view it is not possible to make an effective decision without communicating it to the person whose rights are dealt with in it. Writing the words of an intended decision on a piece of paper and placing the piece of paper in a file is not a complete decision-making process.

(b) At all material times there has been a statutory provision in force requiring an insurance officer to notify the insured person concerned of any adverse decision and giving the latter the right to appeal. In relation to a claim to disablement benefit the insured person now enjoys these rights under section 69(1) of the National Insurance Act 1965 (by virtue of section 8(1) of the National Insurance Act 1966) of which the relevant passage reads as follows:-

"Where the insurance officer has decided any claim or question adversely to the claimant, the claimant may appeal to a local tribunal, and the claimant shall be notified in writing of the decision and the reasons therefor and of his right of appeal under this section: …."

While it is true that the statute does not lay down any time limit within which the claimant concerned must be notified of the decision adverse to him, it is couched in imperative language ("the claimant shall be notified …."), and in my view means that the notification shall be given to the claimant as soon as reasonably possible. The practice under discussion disobeys the precept of the statute.

(c) It follows from (a) and (b) that the insurance officer has no authority to tell a medical board the earliest date from which they are to consider whether the claimant has suffered from a prescribed disease, or that from which a disablement assessment may be made by them. To gain that authority he has to notify the insured person concerned of his decision and await the outcome of any appeal.

(d) A certain number of cases must occur in which there is a denial of justice to the insured person concerned in the sense that he is deprived of benefit to which the law entitles him. If the medical board decide the diagnosis question against the insured person then he is never informed of the insurance officer's disqualification "decision". The medical board would not have considered the disqualification period imposed by the insurance officer, but the insured person may nevertheless have suffered from a prescribed disease, and a resulting disablement, during all or part of it. Had the insured person been told of the insurance officer's "decision" he might have appealed from it successfully and thereby compelled consideration of that period by a medical board.

(e) In any event, so long as it remains the law that a disablement gratuity is not subject to the usual rule that failure to claim in due time may lead to disqualification, the initial medical board will have to consider and decide the diagnosis and disablement questions in relation to the whole period for which the insured person is claiming. Otherwise it will never be known whether or not their decisions lead to the award of a disablement gratuity. Accordingly, it is impossible to reduce their tasks by deciding the disqualification issue first.

Both the Chief Commissioner and I have been told that, whatever the defects of the procedure in question, it tends to be advantageous to insured persons because the rates of disablement benefit increase from time to time and therefore a later award is apt to be higher than an earlier one. At best this argument is a means of allaying criticism, but in my view it is fallacious. An insured person may be advantaged in the way suggested but only if he is assessed to have a disablement leading to the award of a gratuity of maximum amount (ie one given in respect of a specified period of 7 years or more, or for life – see regulation 3 of the National Insurance (Industrial Injuries) (Benefit) Regulations 1964 [S.I. 1964 No. 504], or a pension. Otherwise he may lose benefit. Moreover, in any case where the insured person is so advantaged, it seems to me that he will or may have been awarded benefit in excess of his lawful entitlement. It is no justification of the procedure that it leads to excessive awards.

Plainly the procedure which I have discussed requires urgent reconsideration. It seems to me that it may be necessary to alter the law which differentiates between disablement pension and disablement gratuity regarding disqualification. Also it may be desirable to introduce some special procedure whereby a disqualification issue in such cases as the present can be dealt with expeditiously; for example by means of an appeal by a claimant direct to a Commissioner from an insurance officer's disqualification decision and special priority given to such an appeal. These are, however, mere suggestions on my part made because I do not wish to present a decision which is wholly unconstructive.

In the result I allow this appeal in part and give the decision set out in paragraph 1 above. There must now be another reference to a medical board to decide the diagnosis question raised by the claimant's claim in relation to the period before 10^th November 1971; and also a reference on the related disablement questions.

(Signed) R.S. Lazarus

Commissioner