UKSSCSC CI_410_1991 (24 June 1998)
Mr. D. G. Rice CI/410/199124.6.98
Prescribed disease A10 (occupational deafness) - amendment from 16 October 1989 to regulations regarding assessment of disablement - whether amendment applying to assessment beginning before 16 October 1989.
On 14 September 1984 the claimant claimed disablement benefit in respect of prescribed disease A10 (occupational deafness). Disablement was provisionally assessed at 32% from 14 September 1984 to 13 September 1989. On 18 December 1989 a Reassessment Medical Board made a final assessment of 50% for life, calculating the degree of disablement by rounding up the hearing loss to the nearest whole figure. However, on 16 October 1989, paragraph (3A) had been inserted into regulation 34 of the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985. That paragraph provided for a rounding down of any fraction of an average hearing loss where the average hearing loss was over 50dB. On a reference to them, a medical appeal tribunal applied paragraph (3A) and provisionally assessed disablement at 42% from 14 September 1989 to 13 September 1994. The claimant contended that the law to be applied was that as it stood on 14 September 1989, that being the date from which the new assessment was to begin.
- the presumption against retrospectivity did not apply to legislation relating to matters of procedure or evidence. Provisions concerned with remedies were to be classified as matters of procedure for the purpose of the rules relating to retrospective effect. Assessments in respect of occupational deafness were remedies and so any amendment of the relevant legislation applied to them retrospectively. Moreover the fact that regulation 34(1) provided for an exception in relation to claims made before 30 September 1979 also indicated that the amended legislation was to apply retrospectively;
- the medical appeal tribunal had not erred in law when they calculated the claimant's entitlement at 42% rather than 50%. The claimant's appeal was dismissed.
DECISION OF THE SOCIAL SECURITY COMMISSIONER
"For the purposes of determining the percentage degree of disablement in Parts I and II of Schedule 3 to these Regulations, any fraction of an average hearing loss shall, where the average hearing loss is over 50 dB, be rounded down to the next whole figure".
Accordingly, the reassessment medical board should have rounded down 66.6 dB to 66 dB, and the practical effect of this was to throw up a degree of assessment at 42%.
"The general rule is that all statutes, other than those which are merely declaratory, or which relate only to matters of procedure or of evidence, are prima facie prospective, and retrospective effect is not to be given to them unless, by express words or necessary implication, it appears that this was the intention of the legislature. Similarly, the courts will construe a provision as conferring power to act retrospectively only when clear words are used."
The second passage is contained in paragraph 925, which reads as follows:
"Statutes relating to procedure or evidence. The presumption against retrospection does not apply to legislation concerned merely with matters of procedure or of evidence; on the contrary, provisions of that nature are to be construed as retrospective unless there is a clear indication that such was not the intention of Parliament.
Provisions introducing new remedies have been classed with provisions as to procedure for the purposes of the rules relating to retrospective effect, so that they are prima facie applicable both to proceedings subsequently begun in respect of existing causes of action and to existing proceeding, whether pending before a court of first instance or an appellate tribunal, and provisions suspending remedies are probably to be regarded as procedural in character." [my emphasis]
"It was submitted before this court that to adopt the construction that it is the date of quitting which is crucial would be to adopt a construction with retrospective effect ... In the present case ... when the matter came on for trial before the County Court judge there were three possibilities: the landlords might not be able to establish that they intended to occupy the premises for their own business purposes; the landlords might have changed their mind and have decided that the cost was too great; or the landlords might establish their intention and be required to pay compensation on the tenant quitting. I see nothing retrospective in saying that the compensation would be on the basis of the law current at the date of quitting."
However, although Cardshops Ltd v. John Lewis Properties Ltd is not really apposite, nevertheless I accept the general proposition put forward by Mr. Latter based on the passages cited from Halsbury, passages which are all supported by the various authorities referred to in the relevant footnotes.
"34.-(1) Subject to the provisions of Schedule 8 and regulations made thereunder and the following provisions of this regulation, the first assessment of the extent of disablement in respect of occupational deafness made in pursuance of a claim made before 3 September 1979 by a person to whom disablement benefit in respect of occupational deafness is payable for the period before 3 September 1979 shall be the percentage calculated by-
Mr. Latter argued that the express reference to "a claim made before 3 September 1979" showed that the new legislation was as a general rule to apply retrospectively. There was to be no exception except that stipulated in regulation 34(1). If the new legislation was not to apply retrospectively, there would have been no need for the exception set out in regulation 34(1). Moreover, the exception was limited only to the "first assessment" and Mr. Latter pointed out that in the present case the assessment, apart from not arising on a claim made before 3 September 1979, was not even a first assessment.
Date: 24 June 1998 (signed) Mr. D. G. Rice