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[1994] UKSSCSC CI_701_1993 (03 November 1994)

R(I) 1/97

Mr. V. G.H. Hallett CI/701/1993

Prescribed disease D4 (inflammation or ulceration of the mucous membrane of the upper respiratory passages or mouth produced by dust, liquid or vapour) - medical appeal tribunal deciding "diagnosis" question - whether it is relevant whether or not the condition was caused by the claimant's work

B and G both claimed disablement benefit in respect of prescribed disease D4. Adjudicating medical authorities decided that they were not suffering from the prescribed disease. They then obtained consultant's reports, supporting their claims and suggesting that disablement be assessed at 17.5% in B's case and 15% in G's case. B appealed to a medical appeal tribunal who decided that he was suffering from prescribed disease D4, because there was "some evidence of irritation of the mucous membrane as a result of dust and fumes at work" but assessed disablement at only 1%. G appealed to a medical appeal tribunal who decided that he was not suffering from prescribed disease D4 but from a "severe degree of allergic rhinitis of constitutional origin". B and G both appealed to a Commissioner who heard their appeals together.

Held, allowing both appeals, that:

the tribunals had erred in considering whether the claimants' conditions were caused by their work as those "attribution" questions were matters for adjudication officers and were irrelevant to the "diagnosis" questions before the medical appeal tribunals;

in G's case, the tribunal had erred in failing to consider whether the claimant's condition was produced by dust, liquid or vapour;

in B's case, the tribunal had failed to give adequate reasons for assessing disablement at 1%, having regard in particular to the claimant's consultant's assessment, and had erred in assessing disablement from the date of onset rather than from a date 91 days later;

where a medical appeal tribunal allowed an appeal from an adjudicating medical authority who had decided the "diagnosis" question against the claimant:

(a) they were entitled to determine the disablement questions notwithstanding that the "attribution" question had not been decided by an adjudication officer;

(b) it would be helpful if they expressed a view on the "attribution" question, particularly where there was no presumption that the prescribed disease was attributable to the prescribed occupation;

(c) if they were of the view that the disease had not been caused by the occupation, they might wish to adjourn the hearing until the adjudication officer had decided whether the claimant had worked in a prescribed occupation and had also decided the "attribution" question.

DECISION OF THE SOCIAL SECURITY COMMISSIONER IN CI/701/1993

Decision

This claimant's appeal succeeds. My decision is that both the decisions of the medical appeal tribunal (MAT) dated 7 June 1993 namely (a) that on the diagnosis question and (b) that on the disablement benefit question are erroneous in law. I set them aside and refer the case to another MAT for determination in accordance with my directions.

Representation

I held an oral hearing of this appeal (which I shall refer to as "Blackwell") and of another appeal the reference to which on Commissioner's file is CI/738/1993 and which I shall refer to as "Greer". In each of these cases, the claimant was represented by Mr. Richard Drabble, of Counsel, instructed by Messrs. Mortons, Solicitors, and did not attend the oral hearing. The Secretary of State was, in each case, represented by Mr. W. Howard Connell of the Solicitor's Office, Departments of Health and Social Security.

Nature of the appeals

Both appeals relate to claims for industrial disablement benefit for prescribed industrial disease D4 (inflammation of the mucous membrane of the upper respiratory passages or mouth produced by dust, liquid or vapour). Their background is explained in my decision in Greer's case a copy of which accompanies this decision.

The appeal in Blackwell relates to the decisions of the MAT assessing disablement at 1% (the minimum assessment where a loss of faculty has been found: see section 103(5) of the Social Security Contributions and Benefits Act 1992). That assessment was made on the decision on the diagnosis question and is then referred to in the decision, on a separate form, relating to the disablement question. So both decisions are the subject of the appeal. They give rise to the question whether, in a case where (as happens with PD D4) there is no presumption that, unless the contrary is proved, the disease is due to the nature of the claimant's employed earner's employment, there is jurisdiction to decide the disablement question and, if so, whether it ought to be exercised, before any decision has been given by the statutory authorities (who include the adjudication officer) that the prescribed disease was attributable to the prescribed occupation. If the answer is that there is jurisdiction which ought in the circumstances to be exercised, the question whether reasons must be given to explain the percentage awarded falls to be decided. Both are questions of general importance.

The relevant law

The relevant statutory provisions relating to the jurisdiction issue are set out in the appendix to this decision. Those relating to the prescribed disease, the prescribed occupation and the provisions relating to the statutory presumption are set out in the appendix to my decision in Greer's case.

The claim

On 23 April 1992, the claimant (a man born on 25 April 1953) claimed industrial disablement benefit for prescribed industrial disease D4. He stated that he considered that the work which caused his disease was shipbuilding and engineering at Sunderland Shipbuilders' and Wear Dock Engineering Deptford Works, Welding Department, in the occupation of welder. He stated his disablement began in 1984 and that he was doing such work to date.

The adjudication officer's decision

A factual report was obtained from the claimant's general practitioner who stated that the condition had not been diagnosed in his patient at any time and that the patient had been suffering from seborrhoea dermatitis, appendicitis and minor ailments. Following receipt of this report an adjudication officer decided that the claimant was not suffering from PD D4 and disallowed the claim. The claimant appealed to an adjudicating medical authority (AMA) against this decision.

The AMA's decision

The AMA had before them the factual report and a statement that benefit was claimed from 1 January 1984 and that his employment as a welder with Sunderland Shipbuilders was from 3 September 1968 to date. Their decision, which was given on 29 September 1992, after examining the claimant, was that they found no evidence of past or present PD D4, that his history and examination suggested vasomotor rhinitis and that he was not suffering from a prescribed disease and that he had not suffered from a prescribed disease at any time since 1 January 1984.

The claimant appealed against this decision to an MAT. He supported his appeal with a report dated 25 November 1992 from Mr. V.H. Oswal, F.R.C.S., consultant ear nose and throat surgeon, who after examining the claimant expressed the opinion that the claimant's nasal symptoms were due to a combination of hypertrophy and damage to the nasal mucosa from exposure to various industrial pollutants, culminating in occupational rhinitis and gave an estimation of the claimant's percentage handicap as totalling 17.5%.

The Secretary of State's observations

The Secretary of State submitted that in the light of all the medical evidence the decision of the AMA was correct. However, if the MAT decided that the claimant had suffered from PD D4, they were asked to go on to determine to what extent and for what period any disablement resulting from the disease or a sequela thereof should be assessed (regulation 30(3) of the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1975). If the MAT decided that the date of onset of the prescribed disease was on or after 6 April 1983, the earliest date an assessment could begin was the day following the last day of the period of 90 days (excluding Sundays) starting with the date of onset. [Note: The 1975 Regulations were revoked by the Social Security (Prescribed Diseases) (Industrial Injuries) Regulations 1980 SI 1980, No. 377, which came into operation on 6 April 1983. After various amendments, the current Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985 came into force. There is no similar provision in these regulations. That provision has, since 1986, appeared in regulation 47 of the Social Security (Adjudication) Regulations 1986.]

The MAT's decisions

The MAT gave separate decisions on the diagnosis and disablement questions.

(1) Their decision on the diagnosis question was:

"The decision of the AMA is not confirmed.

The claimant is now suffering from prescribed disease No. D4 or from a sequela of that disease.

The claimant has suffered from prescribed disease No. D4 or from a sequela of that disease at the following times since 1 January 1984."

(2) Their recorded findings of fact were:

"We have examined the claimant and his oral and scheduled evidence and the medical reports of Dr. Datta and Mr. Oswal.

EXAMINATION: There is some crusting of the nasal vestibule and the mucosa of the nose is redder than normal. There was no objective evidence of nasal obstruction. The pharynx was normal. His tonsils had been removed. He was able to recognise the aroma of peppermint and eucalyptus with some help."

(3) Their recorded reasons for this decision were:

"We find that there is some evidence of irritation of the nasal mucous membrane as a result of dust and fumes at work. We note Mr. Oswal's report but disagree with his percentage.

We assess his disability at 1% from 1 January 1984 for life."

(1) Their decision on the disablement benefit question was:

"The decision of the AMA is not confirmed.

The extent of the disablement resulting from the loss of faculty is to be assessed at 1% for the period 1 January 1984 for life.

This is a final assessment."

(2) Their recorded findings of fact were:

"We adopt the clinical findings of the Adjudicating Medical Authority dated ...

From 1 January 1984 there is a loss of faculty identified as follows

PD D4

resulting in the disablement from the relevant prescribed disease."

(3) Box 3, which is that intended for the MAT's reasons for their decision, has not been completed.

The claimant applied for leave to appeal to the chairman of the MAT on the grounds that the MAT had not given reasons for their assessment of the percentage loss of faculty for the prescribed disease D4 and had not given reasons for their disagreement with the percentage assessment of the independent expert (Mr. Oswal). The chairman refused leave and application was then made to the Commissioner. This application also relied on the recent decision of Evans and Others v. Secretary of State [R(I)5/94]. A Commissioner has granted leave.

The submissions on the appeal

In an initial written submission the Secretary of State supported the appeal for the following reasons:

"Having regard to all of the circumstances of this case the Secretary of State submits that the MAT's decision dated 7 June 1993 should be held to be erroneous in point of law. The question for determination by the MAT was whether the claimant suffered from prescribed disease D4. If they found that he did suffer then they were required to decide the date that he first suffered from it and to assess the extent and duration of any resulting disablement. The MAT decided that the claimant did suffer from prescribed disease D4 and that he had suffered from that disease since 1 January 1984. They then went on to assess his disablement at 1 per cent from 1 January 1984 for life. It is submitted that this assessment has not been made in accordance with the provisions of section 103(6) and paragraph 6(1) of Schedule 6 of the Social Security Contributions and Benefits Act 1992 and regulation 11 and Schedule 2 of the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985 i.e. the assessment of disablement should not commence before the expiry of 90 days (excluding Sundays) starting with assessment from the same date as they decided was the date of onset of prescribed disease D4, then their decision must be held to be erroneous in law."

(1) I agreed with the reasoning of the Secretary of State on the points referred to in his written submission but was in doubt as to whether the MAT had jurisdiction to consider, in a PD D4 case, where the prescribed disease is not deemed to be due to the nature of the claimant's employment, the disablement question at this stage. Accordingly, I made the following direction for oral argument in Blackwell's case:

"Blackwell raises the question whether the MAT had jurisdiction, in a PD D4 case to consider the disablement question before there had been a decision of an adjudication officer that the prescribed disease was attributable to the prescribed occupation. If the adjudication officer were to decide that it was not so attributable, such a decision would be a nullity and made without jurisdiction. Until such a decision had been given, the MAT would be deciding a hypothetical question. So the matter for argument is whether the decision in Blakewell on the disablement question was one which was hypothetical and which they had no jurisdiction to give."

(2) There was no doubt that the decisions in Blackwell's case were erroneous in law. But the relevance of the point as to jurisdiction was that it raised the question whether, in the event of the fresh MAT deciding the diagnosis question in favour of the claimant, it was appropriate to direct the MAT to decide the disablement question.

(1) At this stage, prior to the hearing, I already had upwards of 100 appeals which had been, or were in the course of being, referred to me for decision and some preliminary drafts were sent for typing and return for consideration. An unsigned draft of mine in one case (CI/582/1973) which had been sent for typing, instead of being returned to me, was, in contrast to all other drafts, mistakenly and without my authority issued to the parties as though it were a decision. Mr. Connell drew attention to this in a letter saying:

"At the oral hearing I propose to refer briefly to the fact that in the case of CI/582/1973 a draft decision which referred to the decision in Blakewell had been issued to the parties. I shall do so only to make clear the fact that the view of the Secretary of State is that this is not the result of any impropriety, rather the result of a desire to get as much of the necessary work in connection with the large number of these cases before the oral hearing on Thursday. I know that this view is shared by Mr. Drabble for the claimants. My reason for mentioning the matter at the hearing is to prevent any of the other claimants whose cases turn upon Blackwell and Greer feeling a sense of grievance and erroneously supposing that matters had been decided in advance."

(2) At the oral hearing, Mr. Connell formally confirmed that this was the view of the Secretary of State. Mr. Drabble expressed a similar view.

Mr. Drabble submitted that the decision of the MAT was, if the MAT had jurisdiction to consider the disablement benefit question, nevertheless in any event erroneous in law. There was a complete absence of any indication as to why the assessment was 1%. Mr. Oswal had described the effect of PD D4 in some detail. His assessment was 15%. The errors were:

(1) Facts. One could not see from the decision whether the MAT accepted the facts found by Mr. Oswal and, if so, which facts. There was no finding as to the general import of PD4 as it affected the claimant.

(2) Reasons. The reasons for disregarding Mr. Oswals's detailed percentage assessment in his report were not given.

(3) Reasons for the assessment of 1% were required.

Mr. Connell and Mr. Drabble both made oral submissions on jurisdiction. I directed written submissions on this complex point and these are summarised below.

Mr. Drabble's primary submission was that as a matter of law the MAT does not have jurisdiction to decide the disablement question before it is decided that the disease is attributable to employment. This is because the words "any disablement question which arises in consequence thereof" are not apt to confer jurisdiction on an MAT to decide a disablement question in a PD D4 case before the statutory authorities have decided that the PD4 disease is attributable to employment. Before this decision one cannot tell whether any disablement question arises or not. The disablement question does not arise for decision before the question of attribution is decided. The practical sense of this can be seen when one considers the second point namely the need to know, when approaching the disablement question, which employment and which irritant the disablement must be linked to.

(1) If the above was stated too absolutely, Mr. Drabble submitted that MATs should be directed not to use any discretion they have to decide disablement questions in PD4 cases before the attribution question has been decided except in the clearest case. Frequently employment histories are complicated, and it will be necessary for any tribunal addressing the disablement question to consider carefully the provisions relating to causation. This exercise ought only to be performed normally after the acceptance that the disease is attributable to and has been identified and indeed the irritant.

(2) Section 45 of the Social Security Administration Act (formerly section 108 of the Social Security Act 1975) provides by subsection (2) that subject to and in accordance with regulations the disablement questions shall be referred to and determined, followed by a list which includes MATs. These words are wide enough to allow for a regulation allowing a MAT to decide a disablement question even in the absence of a reference. Section 45 refers to "accidents". The provision applying it to diseases is regulation 40(2) of the Adjudication Regulations, the relevant original provision in Part III of the Act being section 108.

(3) The submission of Mr. Drabble concludes:

"6. It may be that the apparent inconvenience that might follow if either of the submissions ... are accepted is not as great as might first appear. It is likely that in PD4 cases the problematic question is attribution and not the existence of the disease, giving the width of the definition and the fact that most cases of allergic rhinitis will be within it. Accordingly, if a realistic approach is taken to the diagnosis question, it may be that time consuming appeals will not be necessary."

Mr. Connell's primary submission on jurisdiction was that the jurisdiction of a medical adjudicator to decide whether a claimant is suffering from a prescribed disease ("the diagnosis question": see regulation 40(3) of the Adjudication Regulations) is not derived from the adjudication officer's reference of that question but from the fact that there is a claim for disablement benefit in respect of that disease, that regulation 44(1) of those regulations provides that if the adjudication officer is of the opinion that a disablement question arises, he is not to determine the diagnosis question but to refer it to the adjudicating medical authority together with the disablement question. By necessary implication the regulation permits the determination of hypothetical questions.

If this argument was not accepted, Mr. Connell submitted that regulation 47 conferred jurisdiction on an MAT to determine a disablement question which arises in consequence of the determination of a diagnosis question. The word "arises" in that regulation envisages the disposal of matter which flow from the diagnosis decision in the same way that regulation 44 does and may be equally hypothetical. In regulation 44(1) the question is hypothetical because the claimant may be found not to have the disease whilst in regulation 47 the question may be hypothetical because the disease diagnosed may be found not to be attributable to the employment or the prescription criterion for the disease diagnosed may not be satisfied.

In Mr. Connell's submission:

(1) Convenience of result cannot be determinative of the question which is posed in these cases as to the extent of the jurisdiction of an MAT. Nevertheless the Commissioner might wish to take account of the fact that it is exceptionally difficult to re-constitute a medical appeal tribunal with the same membership.

(2) The Secretary of State does not accept the contentions expressed in paragraph 6 of the claimants' submission. In his view splitting the determination of the diagnosis and disablement questions is likely to be time consuming, wasteful of resources, and unjust to the majority of claimants in whose case the issues are straightforward. The result is likely to be duplication of effort at all levels of the decision making process.

[Note: this paragraph forms paragraph 20 of Mr. Connell's submission.]

(3) Moreover, with appeals on diagnosis issues having to be determined before the exercise of assessing the degree of disablement commences, the process will be necessarily elongated. Since the claimant's condition will of necessity have changed, the achievement of a just determination of his claim will necessarily be harder.

For the reasons set out above, Mr. Connell submitted that:

(a) medical appeal tribunals have the jurisdiction to determine:

(i) whether there is a loss of faculty resulting from the relevant disease; and if so

(ii) what is the degree extent and the duration of disablement,

before a decision is reached upon the question whether the disease is due to the nature of the claimant's employment; but

(b) they have a discretion not to decide the degree, extent or duration of the loss of faculty where it appears that they cannot do so without first knowing which are the employments to which the adjudication officer is satisfied the disease is attributable; and

(c) that discretion ought to be exercised upon ordinary judicial principles having regard to the need for just determinations being made without undue delay.

Mr. Drabble's reply is set out below. (The reference to "the adjudication officer" in the first sentence should be to the Secretary of State, whom Mr. Connell represented);

"(1) The first issue that is addressed is that raised by the adjudication officer [sic] in paragraph 20 of his submissions, where he makes the point that the approach advocated by the claimant is likely to be "time-consuming, wasteful of resources, and unjust ...". This perspective is not accepted. It is submitted that it misses an essential characteristic of PD4 cases, as opposed possibly to those involving other diseases. The characteristic is the likely essential simplicity of the diagnosis question, coupled with the relative difficulty of the attribution question. The primary concern of the claimants is that a sensible and practical approach to the processing of PD4 claims is developed which recognises these features.

(2) The starting point is the wide definition of the disease. Given this definition, there will be a very large number of cases where the existence of the disease is not a live issue. Ordinary allergic rhinitis will fall within the definition as being produced by dust (including pollen and house dust) fumes or vapour. It accordingly seems to the claimant that provided the task of the medical practitioners acting under reg. 42 is realistically approached, it should be relatively rare for a claimant to have his claim dismissed at an early stage. The medical practitioner should be able to submit a report to the AO indicating simply that the claimant does indeed have PD4. The difficulties that have arisen in the past stem from the fact that all the medical authorities have regarded the diagnosis question as raising wider issues than are in fact raised.

(3) Once a favourable report on the diagnosis question has been received by the AO, he has to decide whether a disablement question arises (see reg. 44(1)). It plainly will not if the disease is not attributable to the employment; and in the case of PD4 there is no presumption to help the AO. He has to decide, at this stage, the attribution question, and it is at this stage that real practical difficulties will arise. If necessary, the AO should refer the attribution question at an early stage to the SSAT. It is submitted that he should not normally refer any disablement question to the medical authorities until it is clear that it arises, that is, until the attribution issue has been settled. If the matter is approached in this way, the temptation for the medical authorities to confuse the attribution issue (which is not for them) with the diagnosis and disablement issues are reduced.

(4) All the present cases reached the MAT by appeal against findings related to the diagnosis issue, an issue which should in fact have caused little difficulty. The central message that the claimants are anxious to convey is that, given the fact that the difficult issue in PD4 cases is attribution, and given the fact that this is a matter for the statutory authorities, procedures should be devised so as to produce an early determination of this issue by those statutory authorities."

The MAT's disablement jurisdiction in a diagnosis appeal

The MAT's jurisdiction to decide the disablement question in the present case, and in Greer's case, and indeed, in all cases where the diagnosis question has been decided by the AMA adversely to the claimant (i.e. the AMA has decided that the claimant is not suffering from PD D4) stems entirely from regulation 47 of the Prescribed Diseases Regulations. The reason for this is that an AMA is prohibited, by regulation 45(4) of the 1986 Adjudication Regulations, from deciding the disablement question where the decision of the AMA enables the case to be decided [e.g. by the adjudication officer] adversely to the claimant. Jurisdiction to decide disablement questions is conferred upon MATs by section 45 of the Social Security Administration Act, with which should be read regulation 40(2) of the 1986 Adjudication Regulations. But for the disablement question to be before a MAT for decision there must be an appeal or reference to the MAT of the decision of the AMA under section 46 of the Act. There can be no such appeal or reference if the AMA has not decided the disablement question. Regulation 47, which is set out in the appendix, enables the disablement question to be decided by the MAT, notwithstanding that it was not decided by the AMA, in cases within its purview.

If the MAT decides the diagnosis question in favour of the claimant, namely that the claimant is or has been suffering from PD D4, the MAT is in a position to decide and assess the resulting disablement. Such assessment will be hypothetical and future in the sense that unless and until the adjudication officer has decided that the PD D4 is attributable to the claimant's occupation, there can be no entitlement to benefit. Mr. Drabble's primary submission was that there was no such jurisdiction until the attribution question had been decided by the statutory authorities. The language of regulation 47 is, so far as material:

"Where a diagnosis question is referred to a medical appeal tribunal that tribunal, upon determining the question referred:

(a) may proceed to determine ... any disablement question which arises in consequence thereof ..."

I am not persuaded that the disablement question does not arise in consequence of the diagnosis question until the attribution question has been decided in the claimant's favour. If the decision on diagnosis is favourable the disablement question clearly does arise in consequence of it. But the assessment may prove ineffective, in that it does not lead to an award by the adjudication officer, because the adjudication officer may decide that the prescribed disease is not attributable to the prescribed occupation or, alternatively, that no occupation is prescribed in relation to the claimant.

The Courts will not decide hypothetical or future questions: see, for example Bright v. Tyndall [1876] 4 ChD 188; Glasgow Navigation Co v. Iron Ore Co, [1910] AC 293; Re Barnato [1949] Ch 258 and Sumner v. Henderson [1963] 1 WLR 823. But none of these are cases where there is a stage by stage process of adjudication and the order in which each stage is to be decided is in question. There is no doubt that, as explained by Mr. Connell in his submission on behalf of the Secretary of State, the medical authorities are required, at the AMA stage, to decide questions which in a sense are hypothetical or future. For where an adjudication officer is of opinion that a disablement question arises, regulation 44(1) of the 1986 Adjudication Regulations requires him to refer the disablement question as well as the diagnosis question to the AMA. The AMA is prohibited from deciding it if their decision on the diagnosis question enables the case to be decided adversely to the claimant, as already explained. But, if it is not adverse, they must go on and deal with the disablement question. At this stage, when they have decided the diagnosis question, the question whether the prescribed disease is due to the nature of the claimant's employment cannot have been decided. For in order for it to be decided, it is necessary to have not only a decision from the AO that the claimant has a prescribed occupation, but also a decision from the AMA that the disease is prescribed in respect of the claimant. The regulations clearly envisage that the disablement question can nevertheless be decided without adjourning for an AO's decision on the attribution point. Yet the question is hypothetical in that if the AO were to decide that PD D4 was not due to the employment, the claimant would be unable to obtain benefit. No doubt, an AMA who found the claimant was suffering from PD D4 but whose advice, on the relevant diagnosis form, was that the disease was not due to the claimant's employment, would in practice adjourn in order to enable the AO to consider and give a decision on the attribution question. The construction that I have adopted above, with regard to regulation 47 of the Adjudication Regulations in its application to an MAT who hear an appeal from a AMA who have adversely decided a diagnosis question, adopts a similar approach.

(1) Accordingly, the fresh MAT to whom I have decided to refer this case will have jurisdiction to decide the disablement benefit question if they decide the diagnosis question in such a way that a disablement question arises. If, however, it is their view that the disablement is not attributable to the claimant's occupation but, for example, to house dust, they may wish, in the exercise of their discretion, to adjourn the hearing until the prescribed occupation and attribution questions have been decided by the adjudication officer. If it is decided that no occupation is prescribed in respect of the claimant or that his prescribed disease is not attributable to his prescribed occupation, any assessment of disablement would be a nullity and none should be made. Mr. Connell has given, in his submission quoted above, a further example (multiple employments) when an adjournment may be appropriate, notwithstanding the difficulty of re-assembling a MAT with the same members.

(2) If an adjournment is decided upon for any reason, it may be considered desirable that a decision on the diagnosis question should be adjourned as well. When the adjourned hearing takes place, this will enable the MAT, if their composition is not the same, as is often the case, to consider the case as a whole, namely as to both diagnosis and disablement.

Whenever the question of adjournment is raised, whether granted or directed or not, reasons for the exercise of their discretion (to which normal judicial principles apply) should be given: cf Eagil Trust Co Ltd v. Piggott-Brown and Another [1985] 3 All ER 119 and Lennard v. International Institute for Medical Science, The Times Law Report, April 29, 1985. If the adjournment is requested in order to enable further relevant evidence to be adduced, the MAT should, when deciding whether to grant or refuse it, bear in mind the case of ex parte Carrarini, reported in the appendix to R(I) 13/65, which is a decision of the Divisional Court.

I have not commented on Mr. Drabble's ultimate suggestion that the attribution question should be determined by the AO before the case reaches the MAT or, indeed, the AMA. In both Blackwell and Greer the attribution question had not been decided at the time when the case in question came before the MAT. It is accordingly not relevant to what I have to decide and relates to a question of policy, which does not fall within a Commissioner's jurisdiction. No doubt Mr. Drabble's suggestion will be considered by those concerned with such matters.

Were the decisions of the appeal tribunal erroneous in law?

Yes, they were. The MAT gave two decisions, one on the diagnosis question and the other on the disablement benefit question. Their reasons for both decisions are given on the form appropriate to the diagnosis question and it is impossible to separate the two decisions. Leave to appeal was granted on the decision of 7 June 1993 without distinction between them and they must be considered together.

On diagnosis, the MAT directed their minds to dust and fumes at work and their note of evidence shows that they directed their minds to the question whether the claimant's symptoms were the result of dust and fumes at work, and not at home. If this is what they thought, they addressed their minds to the wrong question, which was not whether the claimant was suffering from occupational rhinitis but whether the claimant was, or had been, suffering from inflammation or ulceration of the mucous membrane of the upper respiratory passages or mouth produced by dust, liquid or vapour. The origin or provenance of dust, liquid or vapour does not form part of the prescription for this disease. That origin is a question which falls within the jurisdiction of the statutory authorities, not the MAT.

On disablement the MAT's two decisions were erroneous in law because:

(1) it commenced at the date of onset (1 January 1984). As explained by the Secretary of State in his written submission (summarised in para. 15 above) the assessment should not have begun until 90 days after the date of onset.

(2) no indication of the basis on which the percentage of 1% (the lowest that can be awarded) was given. Some indication of the reasons for choosing this percentage should have been given.

(3) Mr. Oswal's detailed and reasoned assessment arrives at the much higher percentage of 17.5%. It is not clear (a) which of the facts found by Mr. Oswal were accepted and which were rejected and (b) why his percentage assessment, which is made under a series of headings each of which found defects in the claimant's nasal performance, was regarded as unacceptable. The MAT's assessment started from the wrong date, its amount is entirely unexplained, Mr. Oswal's detailed opinion (with which the MAT disagreed) has not been dealt with and the diagnosis was made on the basis that the question whether the claimant's disease was due to conditions (dust and liquid) at work prima facie indicates that the MAT did not appreciate that the prescription of this disease is not concerned with its origin.

I set aside, for the above reasons, the diagnosis decision and the disablement benefit decision of the MAT as erroneous in law.

For the reasons given in my decision in Greer's case, the case should now be re-heard by a different chairman and different members all of whom in relation to prescribed disease D4 have never sat on a MAT in Tyne and Wear.

Directions to the new MAT

The first question before the MAT is the diagnosis question. My general directions as to the findings that the MAT must make are set out in my decision in Greer's case, a copy of which accompanies this decision.

If the MAT's decision on diagnosis is favourable to the claimant, they should go on to assess disablement in the circumstances explained above under the heading "the MAT's disablement jurisdiction in a diagnosis appeal".

Having established the date of onset (see para. 24 of Greer's case) it is next necessary to determine from when the assessment should begin. On and after 6 April 1983, when injury benefit ceased to exist, the 90 day rule applies: see section 103(6) and paragraph 6(1) of Schedule 6 of the Social Security Contributions and Benefits Act 1992 and regulation 11 and Schedule 2 of the 1985 Prescribed Diseases Regulations. These provisions are explained in the Secretary of State's submissions quoted in paragraph 15 above. Before 6 April 1983 the transitional provisions in regulation 44 and Schedule 5 of the Prescribed Diseases Regulations 1985 apply. Paragraph 3 of Schedule 5 refers to regulation 16 of "the old regulations" (defined in regulation 2 of the 1985 Regulations) the effect of which is that where the claimant was not entitled to injury benefit there is no injury benefit period and the period for which disablement benefit is available commences with the date of development and not three days later. The Secretary of State will no doubt wish to make a submission on this point if it is considered to arise (as it may in Greer's case).

It should be possible to see from the MAT's decision whether the MAT accepts the facts found by Mr. Oswal and, if so, which facts. There should be a finding as to the general import of PD D4 as it affects the claimant. If Mr. Oswal's detailed percentage assessment is not accepted, the reasons for disagreement should be given. The same direction applies to any further report by a qualified medical practitioner submitted on behalf of the claimant.

Whatever percentage is awarded, the MAT should give some indication of the basis on which the percentage given has been arrived at. If the percentage were, for example, 1% which is the lowest that can be awarded or were, say, 40%, a very high percentage, it seems, some indication that the symptoms were regarded as particularly trivial or insignificant, in the first case, or specially severe and disagreeable in the second would be desirable, indeed essential, if the claimant and the Secretary of State are not to be left guessing as to why it was that the MAT arrived at the particular percentage which they did.

The question whether there should be an "offset" under regulation 11(3) if the claimant has a prior congenital defect or an injury or disease contracted before the date of onset to the extent to which the claimant would have been subject if he had not developed the prescribed disease may arise. "Congenital defect" has a special meaning and is not, it seems, confined to a defect existing at birth: see decision R(I) 13/75. There can, however, be no offset if it is wholly symptomless because an offset can only be made for disablement: see decision R(I) 1/81. If, on the other hand there is another effective cause of the disablement received or contracted after the date of onset and the disability arising from the relevant loss of faculty is 11% or more there may be justification for an addition to the assessment: see the decision in CI/81/1990 [which is to be reported as R(I) 4/94] where the effect of the regulation is summarised at paragraph 34.

If the MAT consider there is dual causation of one of the kinds referred to in paragraph 41, they may wish to consider an adjournment in order to have observations or a further submission on these points from the Secretary of State and the claimant's representative, before arriving at their assessment.

My decision is set out in paragraph 1

Date: 3 November 1994 (signed) Mr. V. G. H. Hallett

Deputy Commissioner

Appendix

(see para. 5)

Section 103(6) and paragraph 6(1) of Schedule 6 of the Social Security Contributions and Benefits Act 1992 provide:

"103.-(6) A person shall not be entitled to a disablement pension until after the expiry of the period of 90 days (disregarding Sundays) beginning with the day of the relevant accident."

"6.-(1) Subject to sub-paragraphs (2) and (3) below, the period to be taken into account by an assessment for the purposes of section 103 above and Part II of Schedule 7 to this Act of the extent of a claimants disablement shall be the period (beginning not earlier than the end of the period of 90 days referred to in section 103(6) above and in paragraph 9(3) of that Schedule and limited by reference either to the claimant's life or to a defined date) during which the claimant has suffered and may be expected to continue to suffer from the relevant loss of faculty."

Sections 45 and 46 of the Social Security Administration Act 1992 provide:

"45.- (1) In relation to industrial injuries benefit and severe disablement allowance, the "disablement questions" are the questions-

(a) in relation to industrial injuries benefit, whether the relevant accident has resulted in a loss of faculty;

(b) in relation to both benefits, at what degree the extent of disablement resulting from a loss of faculty is to be assessed, and what period is to be taken into account by the assessment;

but questions relating to the aggregation of percentages of disablement resulting from different accidents are not disablement questions (and accordingly fall to be determined by an adjudication officer).

(2) Subject to and in accordance with regulations, the disablement questions shall be referred to and determined-

(a) by an adjudicating medical practitioner; or

(b) by two or more adjudicating medical practitioners; or

(c) by a medical appeal tribunal; or

(d) in such cases relating to severe disablement allowance as may be prescribed, by an adjudication officer.

(3) Where-

(a) the case of a claimant for disablement benefit has been referred by the adjudication officer to one or more adjudicating medical practitioners for determination of the disablement questions; and

(b) on that or any subsequent reference, the extent of the disablement is provisionally assessed,

the case shall again be referred under this section, to one or more adjudicating medical practitioners as regulations may provide for the purposes of subsequent references, not later than the end of the period taken into account by the provisional assessment.

(4) Where, in the case of a claimant for disablement benefit, the extent of any disablement of his resulting from an aggregable accident (that is to say, an accident other than the one which is the basis of the claim in question) has been assessed in accordance with paragraph 6(3) of Schedule 6 to the Contributions and Benefits Act at less than 14 per cent, then-

(a) the adjudication officer may refer the disablement questions relating to the aggregable accident to one or more adjudicating medical practitioners for fresh determination; and

(b) on any such reference-

(i) those questions shall be determined as at the first day of the common period; and

(ii) the period to be taken into account shall be the period beginning with that day.

(5) In subsection (4) above "the first day of the common period" means whichever is the later of-

(a) the first day of the period taken into account by the assessment of the extent of the claimant's disablement resulting from the accident which is the basis of the claim in question;

(b) the first day of the period taken into account by the assessment of the extent of his disablement resulting from the aggregable accident.

(6) In the following provision of this Act "adjudicating medical practitioner" means, in relation to any case, one such practitioner, unless regulations applicable to cases of that description provide for references to more than one."

"46.- (1) This section has effect where the case of a claimant for disablement benefit or severe disablement allowance has been referred by the adjudication officer to an adjudicating medical practitioner for determination of the disablement questions.

(2) Subject to subsection (3) below, if the claimant is dissatisfied with the decision of the adjudicating medical practitioner, he may appeal in the prescribed manner and within the prescribed time, and the case shall be referred to a medical appeal tribunal.

(3) If-

(a) the Secretary of State notifies the adjudication officer within the prescribed time that he is of the opinion that any decision of the adjudicating medical practitioner ought to be considered by a medical appeal tribunal; or

(b) the adjudication officer is of the opinion that any such decision ought to be so considered,

the adjudication officer shall refer the case to a medical appeal tribunal for their consideration, and the tribunal may confirm, reverse or vary the decision in whole or in part as on an appeal."

Regulations 11(1), (2), (3) and (4) of the Social Security (General) Benefits Regulations 1982 provide:

"11.- (1) Schedule 8 to the Act (general principles relating to the assessment of the extent of disablement) shall have effect subject to the provisions of this regulation.

(2) When the extent of disablement is being assessed for the purposes of section 57, any 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 (hereafter in this regulation referred to as "the other effective cause") shall only be taken into account subject to and in accordance with the following provisions of this regulation.

(3) An assessment of the extent of disablement made by reference to any disability to which paragraph (2) applies, in a case where the other effective cause is a congenital defect or is an injury or disease received or contracted before the relevant accident, shall take account of all such disablement except to the extent to which the claimant would have been subject thereto during the period taken into account by the assessment if the relevant accident had not occurred.

(4) Any assessment of the extent of disablement made by reference to any disability to which paragraph (2), applies, in a case where the other effective cause is an injury or disease received or contracted after and not directly attributable to the relevant accident, shall take account of all such disablement to the extent to which the claimant would have been subject thereto during the period taken into account by the assessment if that other effective cause had not arisen and where, in any such case, the extent of a disablement would be assessed at not less than 11 per cent if that other effective cause had not arisen, the assessment shall also take account of any disablement to which the claimant may be subject as a result of that other effective cause except to the extent to which he would have been subject thereto if the relevant accident had not occurred."

Regulations 40, 44, 45 and 47 of the 1986 Adjudication Regulations provide:

"Construction of Section A

40.- (1) Regulation 27 applies for the construction of this Section as it applies for the construction of Section D of Part III.

(2) Except as provided in this Section any reference in Part III of the 1975 Act or in these regulations to the relevant accident shall be construed as a reference to the relevant disease and any reference to the date of the relevant accident shall be construed as a reference to the date of onset of the relevant disease.

(3) In the following provisions of this Section any question arising in connection with a claim for or award of sickness benefit made by virtue of section 50A of the 1975 Act or disablement benefit-

(a) whether any person is suffering or has suffered from a prescribed disease, is referred to as a diagnosis question;

(b) whether a prescribed disease has, in fact, been contracted afresh in a case where the question arises under the provisions of regulation 7 or 8 of the Prescribed Diseases Regulations is referred to as a recrudescence question.

Restriction of adjudication officers power to determine diagnosis and recrudescence questions

44.- (1) If, on the consideration of a diagnosis or recrudescence question, the adjudication officer is of the opinion that there arises a disablement question, he shall not determine the diagnosis or recrudescence question but shall refer it to an adjudicating medical authority together with the disablement question.

(2) If a diagnosis question is referred to an adjudicating medical authority under the provisions of regulations 43 or 45, the adjudication officer shall not himself determine any recrudescence question which arises in connection therewith but shall refer it to the adjudicating medical authority together with the diagnosis question.

Appeal against decision of adjudication officer

45.- (1) Where, under the provisions of regulation 42 or 43, an adjudication officer has decided a diagnosis question or a recrudescence question the claimant shall be notified in writing of the decision, of the reasons for it and of his right of appeal under paragraph (2).

(2) A claimant may appeal any decision mentioned in paragraph (1) to an adjudicating medical authority in accordance with the provisions of regulation 3 and Schedule 2.

(3) If an appeal is made against a decision on a recrudescence question, the adjudication officer shall also refer the diagnosis question, and the adjudicating medical authority may confirm, reverse or vary the decision on that question as on an appeal.

(4) If a diagnosis or recrudescence question is referred to an adjudicating medical authority to which there is also referred a disablement question and the decision of the adjudicating medical authority on the diagnosis or recrudescence question enables the case to be decided adversely to the claimant, the adjudicating medical authority shall not determine the disablement question."

Powers of medical appeal tribunal upon determining the question referred

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 an adjudicating medical authority, may confirm, reverse or vary that decision; and

(b) if it is determined that the disease is a recrudescence of an attack to which an earlier decision of an adjudicating medical authority or a medical appeal tribunal relates, may proceed to review-that earlier decision under the provisions of section 110(2) of the 1975 Act."

Regulations 11 and 44 and Schedule 2 and paragraph 3 of Schedule 5 of the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985 provide:

"Application of Chapters IV and VI of Part II of the Act

11. The provisions of Chapters IV and VI of Part II of the Act which relates to industrial injuries benefit and sickness benefit made by virtue of section 50A of the Act shall, in relation to prescribed diseases, be subject to the following provisions of this Part of these regulations, and, subject as aforesaid, to the additions and modifications set out in Schedule 2 hereto.

Transitional provisions regarding dates of development and dates of onset

44. Where a claim for benefit has been made before 6th April 1983 or a date of onset is determined which is before 6th April 1983 or a claim for injury benefit is made after 5th April 1983 for a day falling or a period beginning before 6th April 1983, these regulations shall take effect subject to the provisions of Schedule 5."

SCHEDULE 2

MODIFICATIONS OF CHAPTERS IV AND VI OF PART II OF THE ACT IN THEIR APPLICATION TO BENEFIT AND CLAIMS TO WHICH THESE REGULATIONS APPLY

In Chapters IV and VI of Part II of the Act references to accidents shall be construed as references to prescribed diseases and references to the relevant accident shall be construed as references to the relevant disease and references to the date of the relevant accident shall be construed as references to the date of onset of the relevant disease.

SCHEDULE 5

TRANSITIONAL PROVISIONS REGARDING DATES OF DEVELOPMENT AND DATES OF ONSET

Where a claim for benefit is made after 5th April 1983 and a date of onset is determined which is before 6th April 1983, regulation 16 of the old regulations shall apply as if the old regulations were still in force."

DECISION OF THE SOCIAL SECURITY COMMISSIONER IN CI/738/1993

Decision

This claimant's appeal succeeds. My decision is that the decision of the medical appeal tribunal (MAT) dated 28 June 1993 is erroneous in law. I set it aside and refer the case to another MAT for determination in accordance with my directions.

Representation

I held an oral hearing of this appeal (which I shall refer to as "Greer") and of another appeal, the reference to which on Commissioner's file is CI/703/1993 (which I shall refer to as "Blackwell"). In each of these cases, the claimant was represented by Mr. Richard Drabble, of Counsel, instructed by Messrs. Mortons, Solicitors, and did not attend the oral hearing. The Secretary of State was, in each case, represented by Mr. W. Howard Connell of the Solicitor's Office, Departments of Health and Social Security.

Nature of the appeals

Both appeals relate to claims for industrial disablement benefit for prescribed industrial disease D4 (inflammation of the mucous membrane of the upper respiratory passages or mouth produced by dust, liquid or vapour).

The appeal in Greer relates to the decision of the MAT on the "diagnosis question" before them, namely whether the claimant was suffering or had suffered from prescribed disease D4: see regulation 40(3)(a) of the Social Security (Adjudication) Regulations 1986. The appeal in Blackwell relates to two decisions of another MAT one on the diagnosis question and the other (by reference to the first one) on the "disablement question" (as to which see section 45(1)(a) of the Social Security Administration Act 1992, formerly in Part III section 108 of the 1975 Act, and regulation 40(2) of the Adjudication Regulations).

In view of the substantial number of appeals from MAT decisions relating to PD D4 and in order to secure consistency of approach, the Chief Commissioner directed that appeals relating to this prescribed disease should be dealt with by the same Commissioner.

The purpose of the oral hearings in Greer and Blackwell was to enable reasoned decisions to be given, after oral argument, on common points of principle.

The relevant law

The prescribed disease and prescribed occupation for this disease are set out in Part I of Schedule 1 to the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985 and are reproduced (with other relevant statutory provisions) in the appendix to this decision.

The claim

On 6 May 1992 the claimant (a man born on 21 December 1959) claimed industrial disablement benefit for prescribed industrial disease D4. He stated that he considered the disease was caused by working in dust as a machine operator employed by Lonhro Textiles in the knitting, spinning, weaving department. He stated that his disablement began in 1981 and that he last did such work in 1985.

The claim was referred to an adjudicating medical authority (AMA) following the receipt of a factual report from his general practitioner who stated that the condition had not been diagnosed in his patient at any time and that his patient had been suffering from allergic rhinitis.

The AMA's decision

The AMA had before them a factual report. This stated that benefit was claimed from 1 January 1981 and that the claimant's employment as a machine operator with Lonhro Textiles was from 18 April 1977 to 30 November 1979 and from 29 November 1982 to 19 July 1985. The AMA's decision was given on 19 November 1992, after examining the claimant. The AMA found no evidence of PD D4 and decided that the claimant was not suffering from a prescribed disease or a sequela of a prescribed disease and that he had not suffered from the prescribed disease at any time since 1 January 1981.

The adjudication officer's decision

In view of the AMA's decision on the diagnosis question, the claim was referred to an adjudication officer (AO) for his decision whether benefit should be disallowed from 1 January 1981. On 30 November 1992, the AO gave the following decision:

"Disablement benefit is not payable from and including 1 January 1981 because the medical board has decided that the claimant has not been suffering from the prescribed disease number D4 known as inflammation or ulceration of the mucous membrane of the upper respiratory passages or mouth produced by dust, liquid or vapour (inflammation of the nose, mouth and throat), or from any condition resulting therefrom.

The law used to make this decision

Social Security (Adjudication) Regulations, reg. 43 and 46"

The claimant appealed against the AO's decision on 16 December 1992. He supported his appeal with a medical report from Mr. A. R. Welch, F.R.C.S., who examined the claimant on 3 February 1993. His report of that date sets out the claimant's work history since 1976 and his medical history since 1981. His examination, opinion and prognosis were:

"EXAMINATION

He has a mild bilateral vestibulitis which is inflammation of the anterior nares. His nasal septum is deviated to the right. He has significant nasal congestion on both sides with marked crusting of his left inferior turbinate. The nasal mucosa appears dry and mildly atrophic. His pharyngeal mucosa and nasopharyngeal mucosa are also dry. Indirect laryngoscopy revealed a normal larynx. Palpitation of his neck was normal.

OPINION:

This man is suffering from Mucous Membrane Disease affecting his nasal and pharngeal mucosa. As a result of this underlying problem he experiences nasal congestion, soreness of his nose and throat and impairment of sensations of taste and smell. His nasal symptoms have not responded to steroid sprays.

This condition is a direct result of his exposure to dust and irritants in the past during his various employments. There are no other possible aetiological factors. He can therefore be regarded as suffering from prescribed disease D4.

For the purposes of a DSS assessment I would regard his disability at approximately 15%.

PROGNOSIS:

His symptoms are unlikely to improve with time and have not improved with steroid nasal sprays. It is likely therefore that he will continue to experience these symptoms on a long term basis. His sensations of smell and taste may deteriorate further as he gets older. No further active treatment is likely to help."

The MAT's decision

The MAT had before them the factual report from the G.P., the AMA's decision, Mr. Welch's report and two sets of observations from the Secretary of State. On 15 January 1993, the Secretary of State submitted that the decision of the AMA was correct and in further observations, made on 12 May 1993 after receipt of Mr. Welch's report, the MAT was invited "to consider all the relevant medical evidence and to decide if Mr. Greer is suffering from PD D4 and if so to assess the resulting disablement, if any, accordingly".

The MAT heard the appeal and gave their decision on 28 June 1993. Their decision was:

"The decision of the AMA is confirmed"

Their recorded findings of fact were:

"Examination shows that claimant has a severe allergic rhinitis, left and right deviation of the nasal septum, throat clear and sense of smell normal on testing. His symptoms have been continuous and progressive since 1981 with no periodicity especially in 1981 to 1982 when he was unemployed. Indeed he tells us his symptoms have worsened since he has been away from the relevant environment since 1985. From the above history and examination, in our clinical judgement we consider he is suffering from a severe degree of allergic rhinitis of constitutional origin. For the same reasons we do not agree with the conclusions of Mr. Welch dated 3 February 1993."

Their recorded reasons for their decision were:

"The history and formal examination indicate the findings above."

The arguments on the appeal

The claimant appealed against this decision with my leave. Initially, the Secretary of State submitted that the decision of the MAT was not erroneous in law on the grounds that their decision was one that they were entitled to reach, their reasons for disagreeing with Mr. Welch's report were sufficient to comply with regulation 31(4) of the 1986 Adjudication Regulations and that they had found that the claimant did not suffer from PD4 and as they considered the claimant's condition was of constitutional origin they were not required to make any further findings on the only question that they were required to answer.

I directed an oral hearing of this appeal, together with the appeal in Blackwell, asking for oral argument in respect of the present case (Greer) as follows:

"Greer raises the question whether a finding that the claimant suffers from allergic rhinitis of constitutional origin by an MAT on a diagnosis question:

(a) constitutes a sufficient explanation for a decision that the claimant is not suffering from prescribed disease D4. If the claimant's rhinitis (inflammation of the mucous membrane) is of the upper-respiratory tract and is produced by dust, liquid or vapour the claimant must be suffering from PD D4 whether or not his rhinitis is of constitutional origin and in such a case a decision that the claimant was not suffering from PD D4 would appear to be perverse. The MAT have made no finding on the crucial question which was whether the rhinitis arose from an allergy to dust, liquid or vapour.

(b) the decision that the rhinitis is of constitutional origin amounts to a decision that it is not attributable to the claimant's occupation. That was not a question which the MAT had jurisdiction to decide. It fell within the jurisdiction of the statutory authorities. So the matter for argument is whether the MAT's decision is erroneous in law because (a) their findings and reasons for decision failed to comply with regulation 31(4) of the Adjudication Regulations and (b) they asked themselves the wrong question and decided an issue which they had no jurisdiction to decide when considering a diagnosis question."

Was the MAT's decision erroneous in law?

This is not now in dispute. Both sides were agreed that the decision of the MAT was erroneous in law. In Mr. Drabble's submission:

(1) the decision did not answer the crucial question as to what allergy was responsible for the rhinitis

(2) the decision did not grapple with Mr. Welch's report and

(3) the claimant accepted the construction of the MAT decision set out in paragraph 18(b) above.

Mr. Howard Connell, on behalf of the Secretary of State, referred to my direction quoted above and answered the question in the first sentence of (a) "No" and the statement in the first sentence of (b) "Yes".

(1) I agree with these submissions.

(2) The prescription for disease D4 set out in column 1 of Schedule 1 of the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985 is:

"Inflammation or ulceration of the mucous membrane of the upper respiratory passages or mouth produced by dust, liquid or vapour."

The prescribed occupation for disease D4 is:

"Any occupation involving:

Exposure to dust, liquid or vapour."

(3) The question whether the claimant was suffering from the prescribed disease (the diagnosis question) was that which the MAT were required to decide. The question whether the relevant disease was prescribed in relation to the claimant's occupation was outside their jurisdiction and fell within the jurisdiction of the statutory authorities. (The division of jurisdiction in this respect is explained in decision R(I) 4/91).

(4) The questions before the MAT were:

(a) had the claimant at any time since the date of onset suffered from inflammation or ulceration of the mucous membrane of the upper respiratory passages or mouth; and

(b) if so, was such inflammation or ulceration produced by dust, liquid or vapour?

(5) The MAT answered the first question in the affirmative. But they failed to answer the second question and, in finding that the origin of the rhinitis was constitutional which amounted to a decision that the rhinitis was not attributable to the claimant's occupation, decided a question which they had no jurisdiction to decide. The jurisdiction to decide this question of attribution is assigned to the statutory authorities: see regulation 41(2)(a) of the Social Security (Adjudication) Regulations 1986 and decision R(I) 4/91 (reported) at paragraph 17. Where, as in a PD D4 case, there is no presumption attributing the disease to the nature of the employment, the question of attribution is of particular importance and a specific decision answering the question must be made by the statutory authorities: see regulation 4 of the Prescribed Diseases Regulations.

(6) For the above reasons, I set aside the decision of the MAT as erroneous in law.

(1) Statute requires the case to be now referred to a MAT consisting of persons who were not members of the tribunal who gave the erroneous decision, unless the Commissioner directs otherwise. This requirement, which is now in section 48(6) of the Social Security Administration Act 1992 (replacing section 112(7) of the Social Security Act 1975 as amended), places on a statutory basis the practice adopted (since at least 1976) when setting aside the decision of a MAT. The reason for such practice was not that it was apprehended that the claimant would not get a fair trial if the case were remitted to the same tribunal. It was so that justice should manifestly not only be done but be seen to be done by directing that the case should be heard by entirely different people from those who gave the erroneous decision.

(2) In the present case, Mr. Drabble, on behalf of the claimant has submitted that my discretion in remitting a case is unrestricted and asks that the appeal should be remitted to an MAT consisting of a chairman and members drawn from outside Tyne and Wear on the ground that the Sunderland tribunal (of which this MAT was one) is composed of a chairman and members who sit regularly in Tyne and Wear. I accede to this submission for the following reasons. First, there are in excess of 150 appeals from Sunderland tribunals in PD D4 cases. It would not be practicable to remit them to persons sitting regularly in that tribunal so as to obtain entirely fresh members in each case. There are too many cases for that. Secondly, it is evident from correspondence in many of the cases that some ill feeling has been generated. Whether or not well founded this reinforces the desirability of ensuring an approach to the case which can be demonstrably be seen to be entirely separate from any previous proceedings.

(3) Accordingly, I direct that the case should be reheard by a different chairman and different members all of whom have never sat on a MAT in Tyne and Wear in relation to prescribed disease D4.

Directions to the new MAT

The fresh MAT are concerned to decide the diagnosis question and if, in consequence of their decision on this, any disablement question arises, the disablement question: see regulation 47(a) of the Social Security (Adjudication) Regulations 1986 (printed in the appendix), which replaces, in similar terms, provisions in earlier Prescribed Diseases Regulations (regulation 30(3) of the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1975, which was referred to in the Secretary of State's observations to the previous MAT, is no longer in force).

As already explained, in answering the diagnosis question the MAT has, to decide two questions:

(1) has the claimant at any time since the date of onset suffered from inflammation or ulceration of the upper respiratory passages or mouth; and

(2) if so, was such inflammation or ulceration produced by dust, liquid or vapour?

The date of onset is the day on which the claimant first suffered from the relevant loss of faculty on or after 5 July 1948: see regulation 6(2)(b) of the 1985 Prescribed Diseases Regulations (printed in the appendix).

The record of the MAT's decision should state their clinical findings, which should include a specific finding as to whether at the date of examination the claimant was or was not suffering from such inflammation or ulceration.

That specific finding will not, however, provide a complete answer to the first question. There are several alternatives. For example:

(1) that the claimant has had such inflammation or ulceration since the claimed date of onset (1 January 1981). A decision in this sense should indicate the MAT's reasons for disagreement with the AMA. It is a conclusion contrary to the decision of the AMA; though it is supported by Mr. Welch's report.

(2) that the date of onset is not that claimed. Here, it is necessary, in addition, to indicate the reasons for disagreement on this point from Mr. Welch's report.

(3) that the claimant has never had such inflammation or ulceration. Here, reasons for disagreeing with Mr. Welch's report are necessary. That report was based on an examination made at an earlier date than any examination that the MAT can make. Are his findings rejected and, if so, on what grounds?

(4) that the claimant has had such inflammation or ulceration but this ceased before the date of the MAT's examination. Here it is necessary specifically to find whether there was or was not a sequela in terms of regulation 3 of the Prescribed Diseases Regulations e.g. was the claimant sensitised to dust liquid or vapour? Did such sensitisation fall within regulation 3.

(5) that there has been inflammation or ulceration for a period not covered by any of the foregoing. Here it would be necessary to deal with the reasoned conclusions of Mr. Welch and the AMA.

The second question only arises if some inflammation or ulceration has been found in respect of the whole or part of the period in issue. A finding that the claimant suffers, or has been suffering, from rhinitis amounts to an affirmative answer to the first question. Blakiston's Medical Dictionary defines rhinitis as inflammation of the nasal mucous membrane, Gomez's Dictionary of Symptoms and the Penguin Medical Encyclopedia both define it as inflammation of the lining of the nose. So if rhinitis is found, the MAT must go on to find whether such rhinitis is produced by dust liquid or vapour. A finding that the claimant suffers from allergic or vasomotor rhinitis answers the first question but leaves the second question unanswered namely whether the rhinitis was produced by dust, liquid or vapour. If the MAT find that the claimant suffers from allergic rhinitis and that he is allergic to dust, liquid or vapour, I direct the MAT to find that the claimant is suffering from PD D4. If they find that he is not allergic to dust, liquid or vapour, then they should find that he is not suffering from PD D4. In such a case, it is desirable to explain to what the claimant is in fact allergic. It is necessary here to emphasise that a finding that the claimant's rhinitis is due to an allergy to house dust involves a finding that the claimant suffers from PD D4. It should be noted that a finding that the claimant suffers from nasal allergy answers neither the first nor the second question. It fails to explain whether there was the requisite inflammation or ulceration and, if there was, whether it was produced by dust, liquid or vapour.

A question was raised elsewhere as to whether a MAT is entitled to refuse to look at the report of a qualified medical practitioner produced on the part of the claimant (e.g. on the ground that it is partisan). The answer to this question is a clear "No". The MAT use their own expertise in deciding medical questions: see R v. Medical Appeal Tribunal (North Midland Region) ex parte Hubble [1958] 2 QB 228 at pages 241-2. They can consider any facts and material as doctors do in diagnosis: see page 240. They should not refuse to consider any medical report produced by a qualified medical practitioner on behalf of the claimant. The rules of natural justice (as to which see ex parte Moore [1965] 1 QB 456 at pages 486 et seq) make it clear that it is their duty to consider it and in ex parte Carrarini, a decision of the Divisional Court reported at RI 13/65, appendix, the Court unanimously quashed the decision of an MAT which had refused to entertain such a report. The jurisdiction of the MAT is inquisitorial, not adversarial: see Hubble's case supra. Cases as to the position of expert witnesses in civil cases in an adversarial jurisdiction (such as National Justice Compania SA v. Prudential Assurance Co Ltd ("the Ikarian Reefer") [1992] 2 Lloyds Law Reports 68 are of no assistance. The MAT is, as explained in Hubble's case, the expert. The MAT decides the case after considering the facts, listening to the evidence, and using their own expertise.

If the MAT decide that the claimant is or has been suffering from PD D4, they have jurisdiction to go on to decide the disablement question. Before so doing it will be helpful to answer the question which is put to AMA's when they decide a diagnosis question in favour of the claimant, namely "Do you consider the attack of the disease to be due to the nature of the claimant's employment?".

The question whether the claimant has worked in a prescribed occupation has not (or had not at the date of my oral hearing) been decided in this case and the question whether the prescribed disease is attributable to the prescribed occupation (which cannot be decided until the two prescription questions have been decided) are both matters falling within the exclusive jurisdiction of the statutory authorities, as explained in decision R(I) 4/91. Nevertheless the views of the MAT on the attribution question are particularly desirable in a case where, as with PD4, there is no presumption that the prescribed disease is attributable to the prescribed occupation.

(1) As explained in Blackwell's case, a copy of my decision in which accompanies this decision, if the diagnosis question is decided in favour of the claimant, the MAT has jurisdiction, notwithstanding that there has been no decision by the AMA on the point, to decide the disablement question.

(2) If, however, it is their view that the disablement is not attributable to the claimant's occupation but, for example, to house dust, they may wish, in the exercise of their discretion, to adjourn the hearing until the prescribed occupation and attribution questions have been decided by the adjudication officer.

(3) If an adjournment is considered desirable, reasons should be given. If asked for and refused, reasons will also be required. An adjournment frequently involves a full rehearing before a differently constituted MAT, owing to the difficulty of assembling the same members; so unnecessary adjournments are undesirable. On the other hand, where there is (as in the present case) a complex employment history, it may not be practicable to make a proper assessment before the attribution question has been decided. Then, an adjournment will be necessary.

(4) If an adjournment is decided upon for any reason, it may be considered desirable that a decision on the diagnosis question should be adjourned as well. When the adjourned hearing takes place, this will enable the MAT, if their composition is not the same, to consider the case as a whole, namely as to both diagnosis and disablement.

In the event of the disablement question arising, the MAT should ensure that their decision covers the points referred to in Blackwell's case.

My decision is set out in paragraph 1.

Date: 3 November 1994 (signed) Mr. V. G. H. Hallett

Deputy Commissioner

Appendix

(see para. 7)

Sections 45(1), 48(5) and (6) of the Social Security Administration Act 1992 provide:

45.- (1) In relation to industrial injuries benefit and severe disablement allowance, the "disablement questions" are the questions-

(a) in relation to industrial injuries benefit, whether the relevant accident has resulted in a loss of faculty;

(b) in relation to both benefits, at what degree the extent of disablement resulting from a loss of faculty is to be assessed, and what period is to be taken into account by the assessment;

[Note: Sections 45 and 46 are set out in full in Blackwell.]

...

48.- (5) Where the Commissioner holds that the decision was erroneous in point of law, he shall set it aside and refer the case to a medical appeal tribunal with directions for its determination.

(6) Subject to any direction of the Commissioner, the tribunal on a reference under subsection (5) above shall consist of persons who were not members of the tribunal which gave the erroneous decision.

...

Regulations 2(a), 3, 4(1), 5 and 6 and Schedule 1 (so far as relevant) of the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985 provide:

Prescription of diseases and injuries and occupations for which they are prescribed

2. For the purposes of Chapter V of Part II of the Act-

(a) subject to paragraphs (b) and (c) of this regulation and to regulation 43(3), (5) and (6), each disease or injury set out in the first column of Part I of Schedule 1 hereto is prescribed in relation to all persons who have been employed on or after 5th July 1948 in employed earner's employment in any occupation set against such disease or injury in the second column of the said Part;

Sequelae or resulting conditions

3. Where a person-

(a) is or was in employed earner's employment and a disease is or was prescribed under the Act and these regulations in relation to him in such employment; and

(b) is suffering from a condition which, in his case, has resulted from that disease;

the provisions of Chapter V of Part II of the Act and of these regulations shall apply to him as if he was suffering from that disease, whether or not the condition from which he is suffering is itself a prescribed disease.

Presumption that a disease is due to the nature of employment

4.- (1) Where a person has developed a disease which is prescribed in relation to him in Part I of Schedule 1 hereto, other than the diseases numbered A10, A12, B5, D1, D2, D4, D5 and D12 in that Schedule, that disease shall, unless the contrary is proved, be presumed to be due to the nature of his employed earner's employment if that employment was in any occupation set against that disease in the second column of the said Part and he was so employed on, or at any time within one month immediately preceding, the date on which, under the subsequent provisions of these regulations, he is treated as having developed the disease.

Development of disease

5. If on claim for benefit under Chapter V of Part II of the Act in respect of a prescribed disease a person is found to be or to have been suffering from the disease, or to have died as the result thereof, the disease shall, for the purposes of such claim, be treated as having developed on a date (hereafter in these regulations referred to as "the date of onset") determined in accordance with the provisions of the next 2 following regulations.

Date of onset

6.- (1) For the purposes of the first claim in respect of a prescribed disease suffered by a person, the date of onset shall be determined in accordance with the following provisions of this regulation, and, save as provided in regulation 7, that date shall be treated as the date of onset for the purposes of any subsequent claim in respect of the same disease suffered by the same person, so however that-

(a) subject to the provisions of section 117(4), as modified by paragraph 1 of Schedule 3 to the Adjudication Regulations, any date of onset determined for the purposes of that claim shall not preclude fresh consideration of the question whether the same person is suffering from the same disease on any subsequent claim for an award of benefit; and

(b) if, on the consideration of a claim, the degree of disablement is assessed at less than one per cent, any date of onset determined for the purposes of that claim shall be disregarded for the purposes of any subsequent claim.

(2) Where the claim for the purposes of which the date of onset is to be determined is-

(a) [not relevant]

(b) a claim for disablement benefit (except in respect of occupational deafness), the date of onset shall be the day on which the claimant first suffered from the relevant loss of faculty on or after 5th July 1948; and the date of onset so determined shall be the date of onset for the purposes of a claim for sickness benefit made by virtue of section 50A of the Act in respect of pneumoconiosis, byssinosis, diffuse mesothelioma, occupational asthma, primary carcinoma of the lung, bilateral diffuse pleural thickening or chronic bronchitis or emphysema;

(c) [not relevant]

(d) [not relevant]

Appendix (cont.)

SCHEDULE 1

PART I

Prescribed disease or injury Occupation

Any occupation involving:

D4. Inflammation or ulceration of the mucous membrane of the upper respiratory passages or mouth produced by dust, liquid or vapour. Exposure to dust, liquid or vapour.

Regulations 31(4), 40, 41, 43, 46 and 47 of the Social Security (Adjudication) Regulations 1986 provide:

31.- (4) A medical appeal tribunal shall in each case record their decision in writing and shall include in such record, which shall be signed by all members of the tribunal, a statement of the reasons for their decision, including their findings on all questions of fact material to the decision.

...
PROVISIONS RELATING TO PARTICULAR BENEFITS OR PROCEDURES
SECTION A - PRESCRIBED DISEASES

Construction of Section A

40.- (1) Regulation 27 applies for the construction of this Section as it applies for the construction of Section D of Part III,

(2) Except as provided in this Section any reference in Part III of the 1975 Act or in these regulations to the relevant accident shall be construed as a reference to the relevant disease and any reference to the date of the relevant accident shall be construed as a reference to the date of onset of the relevant disease.

(3) In the following provisions of this Section any question arising in connection with a claim for or award of sickness benefit made by virtue of section 50A of the 1975 Act or disablement benefit-

(a) whether any person is suffering or has suffered from a prescribed disease, is referred to as a diagnosis question;

(b) whether a prescribed disease has, in fact, been contracted afresh in a case where the question arises under the provisions of regulation 7 or 8 of the Prescribed Diseases Regulations is referred to as a recrudescence question.

Application of Part III of the 1975 Act and of these regulations

41.- (1) Subject to regulation 49 (review on ground of unforeseen aggravation) the provisions of section 110(3) of the 1975 Act (effect of decisions as to a loss of faculty) and of section 107 of that Act (declaration than an accident is an industrial accident) shall not apply in relation to prescribed diseases.

(2) The provisions of-

(a) Part III of the 1975 Act, subject to the provisions of this Section and of Schedule 3; and

(b) these regulations, subject, in the case of the diseases numbered B6, C15, C17, C18, C22(b), D1, D2, D7, D8, [D9, D10, D11 and D12] in Part I of Schedule 1 to the Prescribed Diseases Regulations, to the provisions of Part V of these Regulations,

shall apply for the determination of any question arising in connection with a claim for benefit under Chapter V of Part II of the 1975 Act in respect of a prescribed disease.

Note:

Disease numbers in square brackets were substituted in reg. 41(2)(b) by reg. 8(4) of SI 1993/1985 as from 13 September 1993.

...

Procedure on receipt of medical report

43.- (1) If a diagnosis or recrudescence question has been referred as provided by regulation 42(1), the adjudication officer shall, subject to the provisions of paragraph (4), proceed with the consideration of that question as soon as possible after he has received the report of the medical practitioner or practitioners to whom it was so referred.

(2) If the question so referred was a diagnosis question, then, subject to regulation 44(1), the adjudication officer may himself determine the question or refer it to an adjudicating medical authority for decision.

(3) If the question so referred was a recrudescence question, then, subject to regulation 44, the adjudication officer-

(a) if he is satisfied having regard to the report that the disease ought to be treated as having been, in fact, contracted afresh, shall so treat it and shall determine the question accordingly;

(b) if he is not so satisfied, shall treat the disease as a recrudescence of the previous attack or as not having developed on or after 5th July 1948, as the case may require, and shall determine the question accordingly.

(4) Subject to the provisions of these regulations, the provisions of sections 100, 103 and 104 of the 1975 Act shall apply as if a diagnosis or recrudescence question were a question such as is referred to in section 103(1) of that Act and as if references in those sections to the determination of, or to the review of the decision of, such a question included references to the determination of, or to the review of the decision of, a diagnosis or recrudescence question under these regulations.

…

Appeal or reference to a medical appeal tribunal

46.- (1) A claimant may appeal the decision of an adjudicating medical authority on a diagnosis or recrudescence question and in that event the case shall be referred to a medical appeal tribunal.

(2) If the adjudication officer is of the opinion, or if the Secretary of State notifies the adjudication officer that he is of the opinion, that any decision of an adjudicating medical authority on a diagnosis or recrudescence question ought to be considered by a medical appeal tribunal, the adjudication officer shall refer the case to a medical appeal tribunal for their consideration and the tribunal may confirm, reverse or vary the decision as on an appeal.

Powers of medical appeal tribunal under determination the question referred

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 an adjudicating medical authority, may confirm, reverse or vary that decision; and

(b) if it is determined that the disease is a recrudescence of an attack to which an earlier decision of an adjudicating medical authority or a medical appeal tribunal relates, may proceed to review that earlier decision under the provisions of section 110(2) of the 1975 Act.

Notes: (1) Regulations 44 and 45 are set out in full in Blackwell.

(2) Before 19 April 1993 the words "a medical board" appeared instead of "adjudicating medical authority" in the provisions reproduced above.