UK Social Security and Child Support Commissioners' Decisions

[1995] UKSSCSC CI_189_1994 (16 February 1995)

R(I) 5/95

Mr. M. Rowland CI/189/1994
16.2.95

Prescribed disease A11 (vibration white finger) - date of onset - whether date of onset a matter for determination by an adjudicating medical authority

The claimant applied for disablement benefit in respect of prescribed disease A11 (vibration white finger). In answer to the question "from what date do you claim your disablement began ?" he merely put a question mark but he told the adjudicating medial authority that he had started to get tingling in his right hand "about 30 years ago". The adjudicating medical authority nonetheless found that he had been suffering from the prescribed disease since 1 January 1992 which was a "provisional date of onset" determined administratively. The adjudicating medical authority found that the claimant had been suffering form the prescribed disease from 1 January 1992 and assessed disablement at 3% from 15 April 1992 for life. On appeal, the claimant told the medical appeal tribunal that he had "started getting problems" in the period from 1970 to 1973. They assessed disablement at 5% from 15 April 1992 for life, finding that "the claimant's social and domestic activities such as playing bowls, darts, gardening and domestic duties have been affected". The claimant appealed on the ground that the tribunal had failed to record proper findings of fact or adequate reasons for their decision so as to explain why their assessment was "so low".

Held, allowing the appeal, that:

as far as disablement benefit was concerned, the determination of the date of onset of the relevant disease that resulted in the loss of faculty required answers to both the question whether the claimant had ever suffered from the disease and the question whether the relevant disease had resulted in a loss of faculty and consequently the determination of the date of onset arose as a "diagnosis question" and as a "disablement question" and was a matter for an adjudicating medical authority or medical appeal tribunal and not for an adjudication officer (para. 11);

there was no evidence that the claimant had ever suggested that the date of onset was 1 January 1992 or that benefit had been claimed only from that date and the tribunal had erred in law in failing to determine the true date of onset (para. 15);

the tribunal had also erred in law in failing to give adequate reasons for the assessment of disablement because, while the assessment of disablement was largely a matter of judgement, the basis upon which such a judgement is exercised should be made reasonably clear to the parties and a tribunal should record findings as to the practical effects of the claimant's condition and indicate to what extent they had had regard to Schedule 2 of the Social Security (General Regulations) 1982 (para. 16).

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. I allow the claimant's appeals. The two decisions of the Bristol medical appeal tribunal dated 24 November 1993 are erroneous in point of law. I set those decisions aside and I refer the cases to a differently constituted tribunal for determination.

2. On 11 November 1992, the claimant, a retired coalminer, completed a claim form for disablement benefit in respect of prescribed disease A11 (vibration white finger). In answer to the question: "from what date do you claim your disablement began?" he merely put a question mark. The adjudication officer referred the diagnosis question to an adjudicating medical authority to whom the disablement questions were also referred. The adjudicating medical authority was asked to complete form BI 161C(VWF) which was a form for a medical examination report specifically designed for cases where claimants claimed to be suffering from vibration white finger, form BI 140, which was a more general form for medical reports on diagnosis and form BI 118(PD) which was a form on which the adjudicating medical authority could answer the disablement questions. On 22 June 1993, the claimant was examined by the adjudicating medical authority who was Dr. T. A. Bevir.

3. On form BI 161C(VWF), Dr. Bevir recorded the claimant's evidence, including evidence that he had started to get tingling in the right hand "about 30 years ago" and recorded clinical findings. In Part IV of the form, he gave the opinion that the claimant was suffering from prescribed disease A11, that he had first suffered from the disease in the "early 1960s" and that the disease was due to the nature of the claimant's employment. The last of those points was not a matter for determination by an adjudicating medical authority and, judging from item 22(e) of form BI 140, the adjudicating medical authority was merely asked to advise on, and not to determine, that issue. Dr. Bevir gave admirably clear and concise reasons for his opinion:

" - right job

right tools

right length of exposure

right symptoms

right signs."

4. Form BI 140 consisted of four pages. The first page contained "particulars of the claimant etc." and it appears that it was completed on behalf of the adjudication officer referring the case to the adjudicating medical authority, in order to provide the adjudicating medical authority with relevant background information. For reasons which are unexplained, the date from which disablement benefit was claimed was said, in item 7, to be "1 January 1992". That date may have come from form BI8 but there is no explanation as to how the date was inserted as the "date of accident" [sic] on that latter form. The second and third pages of form BI 140 were for completion by the adjudicating medical authority but, because he had completed form BI 161C(VWF), it was unnecessary for Dr. Bevir to do more in answering most questions than refer to that form . However, he was specifically asked to answer item 16(b) which was "has the claimant suffered from the prescribed disease at any time since ......?" Whoever completed page 1 of the form had written "1 January 1992" in the space provided for the date at item 16(b). In doing so, he or she was complying with note (d) on page 1 which said:

"Item 16(b). The date to be inserted is the date from which benefit is claimed i.e. the date shown at item 7 above."

I need not deal with the other answers given by Dr. Bevir on form BI 161C(VWF). Page 4 of that form was for use by an adjudication officer to record decisions made by him or her in the light of the adjudicating medical authority's decision. Item 22(d) provided for referral to the adjudication officer for decision "as to the date of onset of the disease for the purposes of the claim". No decision was recorded. That may be due to the claimant having appealed to the medical appeal tribunal from the decision of the adjudicating medical authority.

5. Form BI 118(PD) also consisted of four pages. The top of page 1 was completed by the same person who completed page 1 of form BI 161C(VWF). It includes a date for a "provisional date of onset" which was recorded as "1 January 1992". The rest of the first two pages of the form was for completion by the adjudicating medical authority when recording evidence and findings and, again, Dr. Bevir was able to refer to form BI 161C(VWF). The other two pages contained the disablement questions and the adjudicating medical authority's answers. Part IV was in the following terms (omitting immaterial notes):

"4. (a) Has the prescribed disease as diagnosed on form BI 140 resulted in a loss of physical or mental faculty at any time since … (provisional date of onset shown at Part I)?

(b) If 'yes' from what date?

(c) Has the loss of faculty continued at least until the earliest date for disablement benefit, i.e. the date following the last day of the period of 90 days (excluding Sundays) starting with the date shown at 4(b)? The earliest date may be a Sunday.

(d) Specify the relevant loss of faculty due to the prescribed disease."

It appears that the person who completed the top of page 1 also put "1 January 1992" in the space provided at item 4(a). Dr. Bevir gave the following answers to the four questions:

"(a) Yes

(b) 1 January 1992

(c) Yes

(d) Painful fingers in the R. hand."

Dr. Bevir then assessed disablement resulting from the relevant loss of faculty at 3% from 15 April 1992 for life. The starting date was recorded in answer to the following question at Part VIII, item 10:

"On what day does the assessment begin? (it should start on the earliest date for disablement benefit as described at Part IV, 4(c))."

2. The claimant appealed against Dr. Bevir's decision in respect of the disablement questions, on the grounds that the assessment of disablement was too low. The Secretary of State had the diagnosis question referred to the tribunal so that the case could be considered as a whole. The Secretary of State's submissions on both questions were in fairly standard form and in general supported the decisions of the adjudicating medical authority without criticism of those decisions.
3. The claimant told the tribunal that he had "started getting problems" in the period from 1970 to 1973 and he described the problems. The tribunal's findings were brief:

"We adopt the clinical findings of the adjudicating medical authority dated 22 June 1993 he has occasional or intermittent similar problems in the left hand. The fingers blanched on the dorsum after immersion in cold water for two minutes."

In respect of the diagnosis question, the tribunal confirmed Dr. Bevir's decision, giving the following reasons:

"We heard the representative of Secretary of State on this reference and we heard claimant.

The diagnosis is not in dispute. We agree with AMA of 22 June 1993 that the claimant is suffering from prescribed disease A11 since 1 January 1992.

We find that the disease is due to the nature of [the claimant's] employment."

In respect of the disablement questions, the tribunal gave the following decision:

"The decision of the Adjudicating Medical Authority (AMA) is not confirmed.

From 15 April 1992 there is a loss of faculty identified as follows

IMPAIRED RIGHT HAND FUNCTION

resulting in the disablement from the relevant prescribed disease.

The extent of the disablement resulting from the loss of faculty is to be assessed at 5% for the period 15 April 1992 for life.

This is a final assessment."

Their reasons for that decision were, again, brief:

"We heard the claimant. Considered scheduled documents and examined him.

The claimant's social and domestic activities such as playing bowls, darts, gardening and domestic duties have been affected.

We assess the disablement at 5% from 15 April 1992 for life."

I note that the heading of the forms of decision, presumably completed by the clerk to the tribunal, says that the "claimed date of onset" was "1 January 1992".

4. The claimant applied for leave to appeal on the ground that inter alia "the statement that the onset of the condition was 1 January 1992 is incorrect". The tribunal chairman refused leave to appeal. The application was renewed to a Commissioner on the ground that the tribunal had failed to record proper findings of fact or adequate reasons for their decision so as to explain why the assessment of disablement "is so low". On 22 March 1994, a Commissioner granted leave.
5. In a written submission, dated 20 May 1994, the Secretary of State's representative submitted:

"9. The Secretary of State notes and supports the claimant's appeal. The question for determination by the MAT was whether the claimant suffered from prescribed disease A11. If they found that he did not suffer they were required to decide the date that he first suffered from the prescribed disease and to assess the extent and duration of any resulting disablement. In oral evidence to the EMP on 22 June 1993, the claimant stated that he began to have symptoms in his right hand about 30 years ago. The EMP's decision was that the claimant suffered from the disease since the early 1960s. It is noted that the AMA decided that the claimant had suffered from prescribed disease A11 from 1 January 1992 and assessed disablement, in respect of the claimant's right hand only, at 3% for life from 15 April 1992 (the 91st day following the first day on which the claimant suffered a loss of faculty as a result of prescribed disease A11). In oral evidence to the MAT on
24 November 1993 the claimant maintained that he started getting problems in 1970-1973 and that his symptoms had got worse in the last five years. He also said that he had problems with his left hand although it was not as bad as his right hand. The MAT decided that the claimant had suffered from prescribed disease A11 from 1 January 1992 and they finally assessed disablement resulting from the relevant loss of faculty described as impaired right hand function at 5% from 15 April 1992 for life. The MAT have not dealt with the claimant's contentions that he had suffered symptoms prior to 1 January or that he also had problems with his left hand. The MAT have increased the assessment to 5% but they have not said why they considered that 5% was appropriate in this case. Having regard to all of the circumstances of this case it is submitted that the MAT have not dealt fully with the claimant's appeal and that their findings and reasons are not sufficient to comply with the requirements of regulation 31(4) of the Social Security (Adjudication) Regulations 1986. Accordingly it is submitted that their decision should be held to be erroneous in law."

I directed an oral hearing in this case because it seemed to me that, if the tribunal had erred in failing to deal with the claimant's contention that he had symptoms before 1 January 1992, the failure was substantially caused by the way the case was put before the adjudicating medical authority and it raised issues of general importance. At the oral hearing, the claimant was represented by Mrs. J. E. Crawley of the Swan Advice Network, Radstock, and the Secretary of State was represented by Mr. J. Latter of Counsel, instructed by the Solicitor to the Departments of Social Security and Health. I was greatly assisted by the submissions of both representatives.

10. Regulation 6 of the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985 (hereinafter "the 1985 Regulations") provides, so far as is material:

" (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 or 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) .... ;

(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 5 July 1948;

(c) ....; or

(d) ...."

The "date of onset" of a disease is of considerable importance. In most cases, it determines the earliest date from which disablement benefit may be paid because a claimant is not entitled to disablement pension until after the expiry of the period of 90 days (disregarding Sundays) beginning with the date of onset of the relevant disease (see section 103(6) of the Social Security Contributions and Benefits Act 1992, as modified by Schedule 2 to the 1985 Regulations). It is also the relevant date for determining a claimant's regular occupation for the purposes of a claim to reduced earnings allowance (see CI/258/1949).

11. It appears to be the case that determination of the "date of onset" is regarded as a matter for determination by an adjudication officer with an appeal or reference being considered by a social security appeal tribunal under sections 21 and 22 of the Social Security Administration Act 1992. When I directed the oral hearing, I raised the question whether the determination of the date of onset involves the determination of a "diagnosis question" under Part IV of the Social Security (Adjudication) Regulations 1986 (hereinafter "the 1986 Regulations); that is, the question "whether any person is suffering or has suffered from a prescribed disease", see regulation 40 (3) (a). Mr. Latter did not dissent from that suggestion but he suggested that the determination of the date of onset, for the purposes of a claim for disablement benefit, also involves a "disablement question". Section 45 (1)(a) of the Social Security Administration Act 1992, as modified by Schedule 2 to the 1985 Regulations, provides that the "disablement questions" include:

" (a) in relation to industrial injuries benefit, whether the [relevant disease] has resulted in a loss of faculty".

The phrase "the relevant loss of faculty" in regulation 6(2)(b) of the 1985 Regulations clearly refers to a loss of faculty resulting from the relevant disease and I therefore agree with Mr. Latter that the determination of the date of onset, for the purposes of a claim for disablement benefit, requires answers to both the question whether the claimant has ever suffered from the disease and also the question whether the relevant disease has resulted in a loss of faculty. It is true that identification of the first day in respect of which the relevant disease has resulted in a loss of faculty is not expressly made a disablement question but it seems to me merely to be the determination of the disablement question in respect of particular days. It follows that, on a claim for disablement benefit, determination of the date of onset is a matter for an adjudicating medical authority or medical appeal tribunal, and not for an adjudication officer. Although an adjudication officer may determine a diagnosis question, he or she may not do so if a disablement question also arises (see regulation 44(1) of the 1986 Regulations).

12. It is not surprising that the date of onset should be determined by the medical authorities when it is remembered that a recrudescence question is also determined by those authorities unless no disablement question arises (see regulation 7 of the 1985 Regulations and regulations 40(3)(b) and 44(1) of the 1986 Regulations). I emphasise that my conclusion that the determination of the date of onset is a matter for an adjudicating medical authority or medical appeal tribunal refers only to a case where that question arises on a claim for disablement benefit. Different considerations arise on a claim for sickness benefit.

13. Adjudication officers have, of course, determined dates of onset in the light of decisions of adjudicating medical authorities and medical appeal tribunals. However, the present case shows that adjudicating medical authorities are not always asked the right questions. It is true that, on form BI 161C(VWF), Dr. Bevir was asked in general terms for the date on which the claimant first suffered from the relevant disease, but he was not specifically asked the date on which the claimant first suffered from loss of faculty as a result of the prescribed disease, although I accept in practical terms there would be little difference. In any event, the effect of Dr. Bevir's answer on form BI 161C(VWF) was completely undermined by the limitation imposed on his answer to the diagnosis question at item 16 on form BI 140. Mr. Latter accepted that note (d) on that latter form was inappropriate because, when the diagnosis question is first determined, the question of the date from which the claimant was first suffering from loss of faculty due to the disease should be left open.

14. Mr. Latter told me that the provisional date of onset inserted at the top of form BI 118(PD) was not intended to bind the adjudicating medical authority, it was merely a notional date taken to enable the claim to be got under way. However, item 4(a) does not appear to give the adjudicating medical authority much scope for finding that the relevant disease has resulted in a loss of faculty at any time before the provisional date of onset. That has the result that disablement is assessed only from a date 15 weeks later because the provisional date of onset limits the answer to item 4(b) and the effect is carried forward to the answers to items 4(c) and 10. If the provisional date of onset is fixed on the date from which benefit is claimed (as seems to be the effect of note (d) on form BI 140), the claimant is immediately prevented from obtaining benefit for the first 15 weeks of the period for which he or she has claimed. I have difficulty in seeing any advantage in putting any provisional date of onset before an adjudicating medical authority on an initial claim. Of course, the effect of regulation 6(1) of the 1985 Regulations is that any date of onset determined in the course of determination of a claim for, say, sickness benefit, has effect for any subsequent claim for disablement benefit, but such a date of onset is not provisional. If, as here, there has been no previous claim for benefit and the wrong date is suggested as the date of onset, total confusion ensues.

15. I do not suppose that the tribunal in the present case ever addressed their minds to the question whether the claimant had been suffering from prescribed disease A11 at any time before 1 January 1992 or had been suffering from disablement arising from the relevant loss of faculty at any date before 15 April 1992. The Secretary of State's submissions to the tribunal did not comment on the relevance of the claimant's assertion to Dr. Bevir that he had had symptoms since the early 1960s. There is no evidence that the claimant had ever suggested that the date of onset was 1 January 1992 or that benefit had been claimed only from that date. The tribunal should have realised that the "claimed date of onset", recorded by their clerk on the top of the decision forms completed by them, was no such thing and that it was for them to determine the true date of onset. They erred in law in failing to do so.


 


16. Mrs. Crawley also submitted that the tribunal erred in law in failing to explain the level of their assessment of disablement. Mr. Latter, however, submitted that, albeit brief, the tribunal's findings and reasons for their decision in respect of the disablement questions were sufficient for compliance with regulation 31(4) of the 1986 Regulations. It is true that the assessment of disablement is largely a matter of judgment, but it seems to be that the basis upon which the judgment is exercised should be made reasonably clear to the parties. In this case, there was really no clear finding recorded by the tribunal as to the practical effects of the claimant's condition. It was said that certain activities are affected but the tribunal has not recorded any finding as to the extent to which they were affected. Dr. Bevir's clinical findings, adopted by the tribunal, do not really throw any light on that issue. Some indication of the extent to which the claimant's grip and dexterity were affected, by reference to what he could and could not do, would have been helpful. I also take the view that a tribunal should indicate to what extent they have had regard to Schedule 2 of the Social Security (General Benefit) Regulations 1982. Regulation 11(8) of those regulations provides:

"For the purposes of assessing, in accordance with the provisions of Schedule 8 to the [Social Security Act 1975 - now Schedule 6 to the Social Security Contributions and Benefits Act 19921, the extent of disablement resulting from the relevant injury in any case which does not fall to be determined under paragraph (6) or (7), the medical appeal tribunal, the medical board or single medical practitioner acting instead of a medical board (as the case may be) may have such regard as may be appropriate to the prescribed degrees of disablement set against the injuries specified in the said Schedule 2."

The "said Schedule 2" is the Schedule of prescribed degrees of disablement. It does not provide assistance in all cases but the present is the type of case where a tribunal might well find it useful to consider the Schedule. They might ask themselves whether or not the claimant is more or less disabled than he would have been had he lost, say, one phalanx of a little finger (5%) or the whole of an index finger (14%). Assessments of disablement should be brought into line with those prescribed in the Schedule. On the other hand, it must be borne in mind that the fact that a condition is only intermittent or episodic should be reflected in the assessment.

17. Therefore, for the reasons given in paragraphs 15 and 16, I find the tribunal's decision to be erroneous in point of law and I set it aside. The tribunal to whom I refer this case should first consider the diagnosis question and decide whether the claimant has ever suffered from prescribed disease A11. If satisfied that he has suffered from that condition, they should determine the date from which he first suffered loss of faculty due to the prescribed disease. By virtue of paragraph 7 of Schedule 6 to the Social Security Contributions and Benefits Act 1992, it is not necessary to assess the degree of disablement more particularly than is necessary for determination of entitlement to disablement benefit or reduced earnings allowance and, accordingly, disablement need be assessed by the tribunal only for the period for which benefit is claimed. If no other period has been specified, disablement should be assessed from 1 April 1985 (when vibration white finger first became a prescribed disease) or from 91 days after the date of onset, whichever is the later. The tribunal should carefully record findings of fact and any other reasons for their decision that are necessary to enable the claimant to understand how they reached it.

Date: 16 February 1995 (signed) Mr. M. Rowland

Commissioner