UKSSCSC CI_1698_1997 (15 December 1998)
THE SOCIAL SECURITY COMMISSIONERS
Commissioner's Case No: CI/1698/1997
SOCIAL SECURITY ADMINISTRATION ACT 1992
SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT 1992
APPEAL FROM A DECISION OF A SOCIAL SECURITY APPEAL TRIBUNAL
ON A QUESTION OF LAW
DECISION OF THE SOCIAL SECURITY COMMISSIONER
COMMISSIONER: MR J MESHER
DECISION OF THE SOCIAL SECURITY COMMISSIONER
(a) On 19 November 1989 the claimant made a claim for disablement benefit in respect of prescribed disease A11 (vibration white finger). On 19 December 1990 disablement was finally assessed at 7% from 1 April 1985 for life. As the claim was treated as having been made on 30 September 1986, a disablement gratuity was awarded by an adjudication officer's decision issued on 25 February 1991.
(b) On 26 May 1992 the claimant signed a disablement benefit claim form in respect of prescribed disease D4 (inflammation or ulceration of the mucous membrane of the upper respiratory passages or mouth). The initial adjudication officer's decision on 26 February 1993 was to disallow disablement benefit for D4, based on the adjudicating medical authority's (AMA's) decision. On appeal, a medical appeal tribunal (MAT) finally assessed disablement at 8% from 1 January 1960 for life. The adjudication officer in a decision issued on 24 August 1995 reviewed the decision of 26 February 1993 on the ground that there had been a revision of the decision of the medical authorities (Social Security Administration Act 1992, section 25(1)(d)). However, the existing decision was not revised because the assessment of disablement was still below 14%.
(c) On 1 August 1995 the claimant had applied for a review of the assessment of disablement in respect of prescribed disease A11 on the ground of unforeseen aggravation. On 4 September 1995 an AMA found unforseen aggravation and on review assessed disablement at 8% from 3 May 1995 for life. In a decision issued on 19 September 1995 an adjudication officer decided that the claimant was not entitled to disablement benefit as disablement from prescribed disease A11 was less than 14%. Then on 15 February 1996 the following adjudication officer's decision was issued:"A disablement pension is not payable from 3.5.95 for life. The decision is made having regard to the aggregated assessment comprising the following assessed percentages of disablement decided by the adjudicating medical authority:-1
Date of Onset of Pres Disease1.1.60 (D4)
Degree of Disablement8%8% (-7%)
Period of Assessment1.1.60 - life
3.5.95 - life
Disablement benefit is not payable because a disablement gratuity of £1552.00 based upon a 7% final assessment of disablement benefit from 1.4.85 for life has already been awarded and paid in respect of the prescribed disease vibration white finger and the above assessment relating to that disease has therefore been reduced by 7% for the common period 3.5.95 for life.
This is because when a final assessment in respect of which a gratuity has been paid is increased as a result of a review on the grounds of unforeseen aggravation, only the amount of any such increase is available for aggregation, that is to say 1%."
(d) On 26 March 1996 a MAT confirmed the AMA's assessment of disablement in respect of prescribed disease A11.
(e) On 10 May 1996 the following adjudication officer's decision was issued:"I have reviewed the decision dated 24/08/95 of the Adjudication Officer disallowing Disablement Benefit from 01/01/60 for life. The decision has subsequently become erroneous in law. That is that from and including 24/07/95 Commissioner's Decision CI/522/93 must be applied.
My revised decision only from and including 24/07/95 is as follows:-A Disablement Pension at the weekly rate of £19.06 from 24/07/95 to 09/04/96, and £19.80 from 10/04/96 for life (all dates included) based upon an aggregated assessment comprising the following assessed percentages of disablement decided by the Adjudicating Medical Authority:(1)
Date of Accident or Date of Onset of Prescribed Disease
Degree of Disablement8%8%
Period of Assessment
01/01/60 - life
03/05/95 - life
the aggregate of which gives a rounded assessment of 20%."
Among the legislation referred to was section 69 of the Social Security Administration Act 1992.
"(1) Subject to the provisions of paragraph (4), any sum on account of industrial injuries benefit which has been paid to any person in pursuance of a decision which is afterwards revised on a review or reversed or varied on an appeal shall be treated as paid on account of any benefit which it is decided is or was payable to him in respect of the same period (in this regulation referred to as `the common period').
(2) For the purpose of paragraph (1)--(a) a gratuity under section 57 of the [Social Security Act 1975] shall be treated as a periodical payment payable in respect of the period (in this regulation referred to as `the gratuity period') taken into account by the relevant assessment of the degree of disablement (that period, where it is more than 7 years or is not limited by reference to a definite date, being deemed to be one of 7 years); and"
[the remainder of paragraph (2) does not need to be reproduced]
"9. For the purpose [of] offsetting any amount paid by way of gratuity under an award which is subsequently varied on appeal or revised on review, regulation 85 of the Social Security (Adjudication) Regulations 1984 shall have effect after 5th April 1987 as if made under section 53(5)(b) of the [Social Security Act 1986]."
However, subsequently it was considered that SI 1986/2217 had been invalidly made. It was replaced by the Social Security (Payments on account, Overpayments and Recovery) Regulations 1987 (SI 1987/491), to come into force on 6 April 1987. The Schedule to those Regulations also provided for the revocation of regulation 85 of the 1984 Adjudication Regulations, and nothing was said in the Regulations about SI 1987/415.
"(1) Subject to the provisions of this section, an employed earner shall be entitled to disablement pension if he suffers as the result of the relevant accident from loss of physical or mental faculty such that the assessed extent of the resulting disablement amounts to not less than 14 per cent. or, on a claim made before 1st October 1986, 20 per cent.
(2) In the determination of the extent of an employed earner's disablement for the purposes of this section there may be added to the percentage of the disablement resulting from the relevant accident the assessed percentage of any present disability of his--(a) which resulted from any other accident after 4th July 1948 arising out of and in the course of his employment, being employed earner's employment, and
(b) in respect of which a disablement gratuity was not paid to him after a final assessment of his disablement,
(as well as any percentage which may be so added in accordance with regulations under subsection (2) of section 109 below made by virtue of subsection (4)(b) of that section)."
Regulations made under section 109 make equivalent provision for cases of loss of faculty due to industrial disease, rather than accident. In particular, regulation 15A(1) of the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985 provides:
"(1) After the extent of an employed earner's disablement resulting from the relevant disease has been determined, the Adjudication Officer shall add to the percentage of that disablement the assessed percentage of any present disablement of his resulting from--(a) any accident after 4th July 1948 arising out of and in the course of his employment, being employed earner's employment, or
(b) any other relevant disease due to the nature of that employment and developed after 4th July 1948,
and in respect of which a disablement gratuity was not paid to him under the [Social Security Act 1975] after a final assessment of disablement."
Although regulation 15A uses the word "shall" instead of "may", it effectively prescribes the same rules for entitlement to disablement pension and for aggregation of percentages of disablement as section 103(1) and (2). I shall refer below only to section 103.
(Signed) J Mesher
Date: 15 December 1998