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[1991] UKSSCSC CI_465_1989 (26 February 1991)

R(I) 1/92

Mr. D. G. Rice CI/465/1989

26.2.91

Prescribed disease A10 (occupational deafness) - claim made more than five years after claimant ceased to be engaged in a prescribed occupation - whether paragraph 4(3) of Schedule 6 to the Social Security Act 1990 is retrospective

The claimant on 12 October 1988 made an application for disablement benefit in respect of occupational deafness. He contended that during the five years prior to the date of claim he had used powered grinding tools on cast metal. On appeal the social security appeal tribunal confirmed the decision of the adjudication officer by rejecting that contention and instead found that the claimant had not been engaged in an occupation prescribed in relation to occupational deafness within five years prior to the date the claim to disablement benefit was made. The claimant appealed to the Commissioner.

Held that:

regulation 25(2) of the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985 which disentitle a claimant to disablement benefit where the claim is made more than five years after the date when the claimant had ceased to be engaged in a prescribed occupation was declared ultra vires by the Court of Appeal on 26 October 1989. Accordingly regulation 25(2) had never been an effective provision and consequently the social security appeal tribunal erred in law when they gave their decision on 14 April 1989 (para. 5);

by virtue of paragraph 4(3) of Schedule 6 to the Social Security Act 1990, which came into force on 13 July 1990, regulation 25 should be taken to be, and always to have been, validly made (para. 6);

clearly paragraph 4(3) operates retrospectively to rectify the invalidity of regulation 25. The tribunal's decision of 13 July 1990 was transferred retrospectively from initially being an invalid decision into a valid determination.

DECISION OF THE SOCIAL SECURITY COMMISSIONER

For the reasons set out below, the decision of the social security appeal tribunal given on 17 April 1989 is not erroneous in point of law, and accordingly this appeal fails.

This is an appeal by the claimant, brought with the leave of the tribunal chairman, against the decision of the social security appeal tribunal of 17 April 1989.

On 12 October 1988 the claimant applied for disablement benefit in respect of the prescribed disease known as occupational deafness (prescribed disease No. A 10). However, on 19 December 1988 the adjudication officer decided that the claim had been made more than five years after the date when the claimant had ceased to be engaged in an occupation prescribed in relation to occupational deafness, and hence the claimant was disentitled to benefit. In other words, he was debarred by the provisions of regulation 25(2) of the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985 [SI 1985 No. 9671]. The claimant had contended that he had during the five years prior to the date of claim, whilst employed by United Biscuits, been engaged in an occupation involving:

"(a) the use of powered (but not hand-powered) grinding tools on cast metal (other than weld metal) or on billets or blooms in the metal producing industry . . ."

In due course, the claimant appealed to the tribunal, who, upholding the adjudication officer, rejected the above contention. They made the following finding of fact:

"2. From 1963 to the present day he is employed by United Biscuits as a fitter using a grinding tool but not on cast metal."

They gave as the reasons for their decision the following:

". . . By regulation 25(2) claims are debarred which are made later than five years after the claimant ceased to be employed in . . . a prescribed occupation . . . During the previous five years, although he had been using grinding tools, they were not being applied to cast metal and even if they had been, the tribunal interpreted the relevant section as meaning applying grinding tools to cast metal in the metal producing industry and United Biscuits did not fall into that category".

Assuming that regulation 25(2) was valid I consider that the tribunal were entitled, on the evidence, to reach the above conclusion.

But was regulation 25(2) valid? After the tribunal had given their decision, the Court of Appeal on 26 October 1989 in McKiernon v. The Secretary of State for Social Security ruled that regulation 25(2) was ultra vires. Moreover, the effect of their decision was to declare what the position had always been. Accordingly, regulation 25(2) had never been an effective provision, and it followed that the tribunal were not entitled to apply it in the present case. They had therefore erred in point of law.

However, that is not the end of the matter. For, on 13 July 1990, paragraph 4(3) of Schedule 6 to the Social Security Act 1990 came into force, and this provided as follows:

"4. (3) Regulations 6(2)(c), 25 and 36 of the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985 (onset of occupational deafness and time for claiming in respect occupational deafness or occupational asthma), and any former regulations which they directly or indirectly re-enact with or without amendment, shall be taken to be, and always to have been, validly made [my emphasis]."

Manifestly, paragraph 4(3) is to operate retrospectively. The draftsman could not have made the position clearer. The result is that, although pursuant to the judgment of the Court of Appeal, the original regulation was ultra vires and therefore without effect, its invalidity was subsequently rectified, and the original regulation given force by paragraph 4(3) Schedule 6 to the Social Security Act 1990. Moreover, such rectification has retrospective effect. Accordingly, by Act of Parliament the tribunal's initial invalid decision was, as from 13 July 1990, retrospectively transformed into a valid determination.

It follows from what has been said that I must dismiss this appeal.

Date: 26 February 1991 (signed) Mr. D. G. Rice

Commissioner