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[1994] UKSSCSC CI_543_1992 (23 February 1994)

R(I) 6/94

Mr. R. A. Sanders CI/543/1992
23.2.94

Disablement benefit - prescribed disease D1 (pneumoconiosis) - whether medical adjudicating authorities could consider alternative diagnosis although not specifically claimed

The claimant claimed disablement benefit for prescribed disease D1. The form was designed also for claims for prescribed diseases D2, D3, D8 and D9. In a space on the form the claimant wrote "Carcinoma of the thorac". The medical appeal tribunal confirmed the special medical board's finding that there was no evidence of prescribed diseases D1, D3, D8 or D9. On the claimant's appeal to the Commissioner, the Secretary of State's representative submitted that the tribunal had erred in law by giving a decision on prescribed diseases D3, D8 and D9 as only the diagnosis and disablement questions in respect of prescribed disease D1 were before them.

Held, allowing the appeal, that:

regulation 47(a) of the Social Security (Adjudication) Regulations 1986 permitted a tribunal to determine any diagnosis question which is related in some way to the diagnosis question referred to the tribunal. The use of regulation 47(a) in this was subject to the rules of natural justice so that a tribunal should not give a decision on a diagnosis question if the parties had not had the opportunity of putting their case in respect of it. The appeal was allowed on the ground of inadequacy of reasons and remitted for hearing.

DECISION OF THE SOCIAL SECURITY COMMISSIONER

On 26 July 1988 Mr. Walter Jackson, now in his mid 80's, completed a claim form on which the heading was "Claim for Industrial Disablement Benefit for Pneumoconiosis (including Silicosis and Asbestosis) or Byssinosis or an Asbestos Related Disease (PD Nos. D3, D8 or D9)". Item four of the form asked the claimant to "put a cross in the appropriate box against the disease for which you are claiming". There are five boxes labelled respectively pneumoconiosis, byssinosis, diffuse mesothelioma, lung cancer when accompanied by asbestosis or bilateral diffuse pleural thickening, and bilateral diffuse pleural thickening. The boxes with those descriptions in fact correspond to prescribed diseases Dl, D2, D3, D8 and D9 on the list of such diseases in Part I of Schedule 1 to the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985. Mr. Jackson ticked the pneumoconiosis box and also wrote in one of the spaces between the boxes "Carcinoma of the Thorac" (sic). To succeed in his claim Mr. Jackson had to establish not only that he was suffering from a prescribed disease but also that he had worked in the relevant prescribed occupation as shown in the schedule to which I have referred. In this case, as may be routine practice, the diagnosis question was dealt with first by the medical adjudication processes laid down in relation to prescribed diseases in regulations 40 to 51 of the Social Security (Adjudication) Regulations 1986.

On 9 January 1990 a special medical board which, Mr. Jackson by then having gone to live in Spain, dealt with the case on the papers, decided that Mr. Jackson was not suffering from any prescribed disease. In their statement of findings of fact they said that:

" ... on the balance of probabilities he is not suffering from PD D1, D3, D8 or D9."

Mr. Jackson appealed to the Newcastle medical appeal tribunal and, in his absence, they confirmed the board's decision concluding that there was:

"no evidence of D1, 3, 8 or 9."

Mr. Jackson then appealed to the Commissioner.

The Society for the Prevention of Asbestosis and Industrial Diseases (SPAID) took up the case on Mr. Jackson's behalf in particular because of the issue raised in paragraph 10 of the submissions on behalf of the Secretary of State as follows:

"10. As the claim before the MAT was that for PD D1 the MAT should have only been concerned with the diagnosis and disablement question in respect of PD D1. The MAT have given a decision regarding PD D3, D8, and D9, which were not questions before them. The MAT's decision is therefore erroneous in point of law because the MAT by giving a decision on PD D3, D8 and D9 have exceeded their authority. Because of the MAT's decision on these prescribed diseases it could have the result of obstructing a claim for these prescribed diseases unless the MAT's decision is set aside."

In response to that submission Mrs. Nancy Tait the Secretary of SPAID wrote:

"The Secretary of State submits that the MAT decision is erroneous in point of law because, by giving a decision on PD D3, D8 and D9 they have exceeded their authority and their decision could obstruct a claim for these prescribed diseases.

This view is contrary to that obtained from the Secretary of State for Social Security who wrote in May 1987:

"I agree with Mrs. Tait's view that the medical adjudicating authorities should consider whether or not a claimant is affected by any of the prescribed asbestos related diseases irrespective of the disease number shown on the claim form. I understand that this has generally been the practice of special medical boards and medical appeal tribunals over the years. Indeed, the medical board report form was amended in 1986 to make the need for this absolutely clear"

The correspondence is attached as appendix A.

In 1986/7 SPAID was trying to help a number of people who were receiving conflicting advice from the office of the medical appeal tribunal and their local DSS office.

In one case, the MAT were advised by DSS Regional Office that they could only consider the prescribed disease for which the claim has been made so, if the claimant wished the MAT to consider two prescribed diseases but had only claimed for one, he must start an additional claim for the second disease, via his local DSS office. He did this only to find that the SMB refused to examine him until his appeal had been decided.

The Secretary of State's submission in Mr. Jackson's case suggests that the DSS Norcross office has reverted to the pre 1986 position.

Guidance on this issue is now sought from the Commissioner.

It is not uncommon for a claimant to be affected by two asbestos related prescribed diseases. Many find it difficult to complete question four of present claim form BI 100 (Pn) (document T2 of Mr. Jackson's papers) accurately and precisely."

Mrs. Tait had earlier been in correspondence with her Member of Parliament about this problem and she produced a letter dated 20 March 1987 to Mr. Brian Gould MP in which she put the matter very cogently as follows:

"DHSS Offices are causing many problems when dealing with claims for industrial disablement benefit for one of the four prescribed asbestos diseases because they are insisting that a claimant must know the precise diagnosis before he makes a claim. The four prescribed asbestos diseases for which industrial benefit may be paid are:

PD D1 Asbestosis.

PD D3 Diffuse mesothelioma.

PD D8 Lung cancer accompanied

by asbestosis or bilateral diffuse

pleural thickening.

PD D9 Bilateral diffuse pleural thickening.

Most doctors are usually very much against self diagnosis and we often find that a patient is only told that they are suffering from the effects of exposure to asbestos. DHSS insist that the application form must quote one of the four prescribed asbestos disease numbers and they then insist that the papers deal only with that condition, while we find that a diagnosis may change, for example, from D7 asbestosis to D9 diffuse bilattral thickening of the pleura, or Dl asbestosis to D8 lung cancer."

An oral hearing of Mr. Jackson's appeal was directed on this point. At the hearing Mr. Jackson was represented by Mr. N. J. Wikeley and the Secretary of State by Mr. J. Latter, both of Counsel.

I should say that all along the Secretary of State's representative has conceded that the tribunal's decision was erroneous in law because the tribunal had failed to explain why they rejected the views expressed in the medical report (translation dated 24 February 1991) which appeared to support Mr. Jackson's case. That report had not been before the medical board. The tribunal confirmed that they had considered it but then said nothing more about it. I have no doubt, particularly having regard to what was recently said by Lord Justice Neill in the case of Evans and Kitchen (transcript 30 July 1993) at page 28 of the transcript, that the tribunal's decision is erroneous in law for insufficiency of reasons. I therefore set aside the tribunal's decision and remit the case for rehearing by a differently constituted medical appeal tribunal. I know that Mr. Jackson wanted me to give the final decision in the case but I have no power to do that; I can do no more than send the case to another tribunal.

5 . I now turn to the question whether the tribunal were right to give a decision in relation to the four prescribed diseases or whether they had jurisdiction to deal only with PD D1. On this point Mr. Wikeley had, before the hearing, helpfully put in a skeleton argument which he developed during the hearing and Mr. Latter, except in relation to one point to which I refer below, followed the approach of the Secretary of State's supplemental written submission in which the argument had been set out at some length and with reference to various cases dealing with medical adjudication.

Regulation 42(1) of the Social Security (Adjudication) Regulations 1986 requires that, except in cases to which regulation 42(1) refers, the diagnosis question (i.e. whether the claimant is suffering from a prescribed disease: see regulation 40(3)) in any case should be referred by the adjudication officer to one or more medical practitioners for a medical report. Having got the report the adjudication officer must either determine the diagnosis question himself or refer it to a medical board for their decision: regulation 43(2). If a disablement question also arises both questions must be referred to the medical board: regulation 44(1). If the adjudication officer has determined the diagnosis question himself the claimant may appeal to a medical board: regulation 45(2). Regulation 46(1) gives the claimant the right of appeal to a medical appeal tribunal against the decision of a medical board, and sub-section (2) allows an adjudication officer to refer the decision of a medical board to a medical appeal tribunal. That is a rough outline of the scheme of medical adjudication. And it was that scheme which caused Mr. Latter to submit that in the first place the medical board and then the medical appeal tribunal had jurisdiction to determine the diagnosis question only in respect of whatever had been referred by the adjudication officer. So that if the adjudication officer had referred for decision whether the claimant had pneumoconiosis (PD D1) that was the only disease the board and then the medical appeal tribunal could deal with. Thus it followed, submitted Mr. Latter, that even if a board to whom PD D1 had been referred concluded that the claimant suffered not from PD D1 but from some other asbestos related disease and they said so the adjudication officer would again have to refer that matter to the board for a formal decision.

In fact, as Mr. Latter agreed, there was in this case no documentation showing what had been referred and there appears to be no procedure for disclosing to a claimant the terms of an adjudication officer's reference. Mr. Latter conceded that if the reference was so crucial it was entirely unsatisfactory for it to be concealed from the claimant. And that caused him to submit that one must infer from the claim form what had been referred. So in this case it was legitimate, contrary to the Secretary of State's original written submission, to infer from the fact that the claimant had referred on the claim form not only pneumoconiosis but had also written "Carcinoma of the Thorac" (sic) that at least both PD D1 and PD D8 had been referred.

If one is to infer what has been referred from what the claimant puts on the claim form including any chance remarks such as in the present case then a great deal, too much in my view, will turn on a claimant's ability to decide what is wrong with him. SPAID dealt with this self diagnosis problem in the letter to Mr. Gould which I set out above.

In the written submissions on behalf of the Secretary of State reference was made to Minister of Social Security v. AEU (In re Dowling) [1967] 1 All ER 210. In that case the House of Lords were concerned with whether a medical board which had been asked to determine whether the accident in question resulted in a loss of faculty could decide that there had never been an accident. That case in my view has no bearing whatever on the point with which this case is concerned. Reference was also made by both Counsel to CI/229/1986 and CI/255/1991. In the first of those cases the Commissioner decided that when, as it appeared, the adjudication officer had referred to the medical board the diagnosis question in relation to asbestosis (PD D1) it was not open either to the board or to the subsequent tribunal to make a decision with regard to bilateral diffuse pleural thickening (PD D9). And that was said to be the case notwithstanding that on the claim form the claimant had referred to "Asbestosis pleural disease". A rather different view seems to have been taken by the Commissioner in CI/255/1991 in which it was said (para. 11) that:

"In my view the MAT was required to consider the prescribed disease specifically stated upon the claim form … and any other prescribed disease which might have been pleaded before or during the hearing" (my emphasis).

In neither CI/229/1986 nor CI/255/1991 was there reference to regulation 47(a) of the Social Security (Adjudication) Regulations 1984 (or the predecessor provision in the same terms, regulation 48(a) of the Social Security (Adjudication) Regulations 1984) which relates to the powers of a medical tribunal in regard to the diagnosis (and recrudescence) questions. Regulation 47(1) provides:

"47. Where a diagnosis or recrudescence question is referred to a medical appeal tribunal that tribunal, upon determining the question referred-

(a) may proceed to determine any diagnosis or recrudescence question which arises in connection therewith and any disablement question which arises in consequence thereof and where a decision on any such question has been given by a medical board, may confirm, reverse or vary that decision;"

Mr. Latter sought to persuade me that that provision allowed a tribunal to determine only some other aspect of the diagnosis question that had been referred to the medical board and not some other different diagnosis question. I do not accept that. The first few words of (a) seem to me to be wide enough to allow a tribunal "upon determining the question referred", to determine any diagnosis question that arises in connection with the diagnosis question actually referred. And that I think is fortified by the last few words which seem to make it clear that the tribunal may deal with a diagnosis question whether it has been the subject of a decision by a medical board or not. I should perhaps mention in passing that regulation 47(a) applies whether the reference to the tribunal is made by the adjudication officer or following an appeal by the claimant: see regulation 46(1) .

In my view regulation 47(a) permits a tribunal to determine any diagnosis question which is related in some way to the diagnosis question actually referred. Thus the various dust related diseases or at least the asbestosis related diseases D1, D3, D8 and D9 would all be sufficiently closely related to enable a tribunal which had the necessary medical evidence to deal with all or any of those. That of course is consistent at least with the heading of the claim form to which I referred in paragraph 1. On the other hand a tribunal to which had been referred the diagnosis question in relation to any of the C number diseases (conditions due to chemical agents) could hardly be expected to embark on the D diseases.

Regulation 47(a) is in terms permissive. And its use will always be subject to the rules of natural justice. So that what was said in CI/255/1991 namely that a tribunal should consider "any other prescribed diseases which might have been pleaded before or during the hearing" seems to me to be essentially a natural justice point. Plainly a tribunal should not give a decision on a diagnosis question or indeed on any question if the parties have not had the opportunity of putting their case in respect of it.

The outcome in the present case, applying the principles to which I have referred, is that the tribunal was, as Mr. Wikeley submitted, entitled to give a decision in relation to D1, D3, D8 and D9. The tribunal were not in error on that account. Their error was, as I have said, that the reasons they gave for their decision were insufficient.

I notice from the papers that the Department's view on this matter has changed over the years. It apparently used to be thought that the provisions to which I have referred had the effect which I have attributed to them. Then the Department changed their minds and said in effect that whatever box was ticked on the claim form was crucial. Then, at the hearing Mr. Latter said that regard should be had to any other information volunteered on the claim form. It seems to me the form or at least the way it has come to be used is causing problems. In my view the boxes should be used by the adjudication officer for information purposes and not to restrict the claim. As the heading on form BI 100 (Pn) suggests, where it is apparent from the information provided that the claimant could be suffering or says he is suffering from any of prescribed diseases Dl, D3, D8 or D9 all those diseases should be considered.

Date: 23 February 1994 (signed) Mr. R. A. Sanders Commissioner