UK Social Security and Child Support Commissioners' Decisions

[2000] UKSSCSC CI_1527_1997 (10 July 2000)

 


THE SOCIAL SECURITY COMMISSIONERS

Commissioner's Case no: CI 1524 1997

SOCIAL SECURITY ACTS 1992 - 1998

APPEAL FROM A DECISION OF A MEDICAL APPEAL TRIBUNAL

ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Mr Commissioner David Williams

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. I allow the appeal by the claimant.
2. The appeal is against the decision of the Wigan appeal tribunal on 18 October 1996. It was brought by leave of the Commissioner. The tribunal confirmed the revised decision of the adjudication officer that the claimant is entitled to an aggregated assessment of 40% in respect of injuries he had suffered from a series of industrial accidents.
3. I set aside the decision of the tribunal. It is expedient that I substitute my own decision for that of the tribunal. My decision is

The revised decision of the adjudication officer is confirmed save that it is to be further revised to include, with effect from 6 November 1991, an additional 5% for life in respect of the industrial accident to the right shoulder on 28 October 1977.

The aggregation gives a rounded assessment of 40% (unchanged) from 6 November 1991 to 21 May 1992, of 30% (unchanged) from 22 May 1992 to 12 August 1992, and 50% (increased) from 13 August 1992.

The case is referred to the Secretary of State to work out the revised weekly entitlement of the claimant from 13 August 1992, and to establish the arrears payable.

As this is a decision on the facts, either party is at liberty to refer any point of uncertainty or dispute arising in respect of the implementation of this decision back to me (or to another Commissioner if I am not available).

Oral hearing

4. I held an oral hearing of this appeal on 14 June 2000. The claimant attended and was represented by Mr Steve Kennedy of Leigh and District Welfare Rights Group. They presented the appeal and supporting evidence with admirable clarity and focus, and I am grateful to them. The Secretary of State was represented by Mr Heath of the Office of the Solicitor to the Department of Social Security. I am grateful to him for presenting submissions them in a way which considerably assisted in clearing up the conflicting submissions in the papers.

Background to the appeal

5. The claimant was a professional rugby league player with an impressive career record. It is perhaps not surprising that he suffered a series of accidents causing lasting injuries while playing. Four injuries, in particular, led to claims for industrial injuries disablement benefit because of assessments of continuing disablement. These were subject to several assessments, with a final assessment by a medical appeal tribunal given in a series of decisions on 4 January 1995. Save for a small but important issue about what claims were made for benefit for the right shoulder injuries, and when those claims were made, the facts are not in dispute. The accidents, and 1995 medical decisions, were:

An accident on 5. 2. 1966 to the right knee assessed after considering unforeseen aggravation at 20% from and including 6. 11. 1991 for life

An accident on 23. 3. 1977 also to the right knee assessed

after considering unforeseen aggravation and after offsetting 20% for the

previous injury at 17% from and including 13. 8. 1992 for life

An accident on 28. 10. 1977 to the right shoulder on which there was no unforeseen aggravation but which was assessed at 5%

from and including 12. 2. 1979 for life

An accident on 5. 2. 1991 also to the right shoulder assessed

after considering unforeseen aggravation and after offsetting 5% for the previous injury at 7% from and including 22. 5. 1992 for life.

The decisions of the adjudication officer and social security appeal tribunal

6. On 4 October 1995 an adjudication officer reassessed the claimant's weekly entitlement to disablement benefit in the light of the medical appeal tribunal decision. The officer noted each of the starting dates of the assessments and issued a series of decisions. The final decision, with effect from 13. 8. 1992, was that the aggregated assessment should be 40%. This was rounded from the 20%, 17%, and 7% for the first, second, and fourth accidents. This was immediately challenged by the claimant on the grounds that the aggregation should also include the 5% for the third accident, as that had happened over 7 years before. That, it was contended, should lead to an aggregated assessment of 50%. It is the question of aggregation of that 5% that lies at the heart of this appeal.
7. The adjudication officer's decision was supported by reference to section 103 of the Social Security Contributions and Benefits Act 1992 and Commissioner's decision CI 522 1993. The view was taken that the medical appeal tribunal in January 1995 had found no unforeseen aggravation of the disablement caused by the third accident and that there was therefore no new assessment of that accident to be aggregated under section 103(2). This was said to be supported by the Commissioner at paragraph 5 of CI 522 1993. That interpretation of CI 522 1993 was disputed by Mr Kennedy both at that time and before me. The social security appeal tribunal on 1 October 1996 did not accept Mr Kennedy's contention. It found no ground to distinguish CI 522 1993 from the present case, which it therefore followed. It also found that the application for unforeseen aggravation was not a fresh claim. It therefore confirmed the adjudication officer's decision.

CI 522 1993 and CI 1698 1997

8. Since that decision, another Commissioner decided a similar case, CI 1698 1997. The Commissioner reached a similar conclusion about aggregation to that in CI 522 1993, but did so for different reasons. Further, the Commissioner expressed some doubts about aspects of CI 522 1993. A written submission of one of the parties claims that both CI 522 1993 and CI 1698 1997 are wrong, while both parties raise inconsistent submissions on the proper interpretation of the decisions and inconsistent arguments about whether they should or should not be distinguished from the present case. This in part depends on the date when the claimant made the application for a review of unforeseen aggravation of the first injury of his right shoulder. Only when that issue has been sorted out can a proper approach to the arguments about the Commissioners' decisions be made.

The questions in issue

9. The seemingly simple question in this case is whether, in aggregating the levels of disablement assessed by the medical appeal tribunal in 1995, account should, or should not, be taken of the award by the medical appeal tribunal in 1995 of 5% for the accident on 28. 10. 1997 (in respect of which the tribunal found no unforeseen aggravation) together with the awards for the three accidents for which it found there was unforeseen aggravation. What should be a simple question with a simple answer turns out to have caused not only my fellow Commissioners (and me) but also the Department of Social Security considerable difficulty. That difficulty is evidenced clearly in CI 522 1993 not only because the Commissioner himself emphasised the difficulty, but also because of the inconsistent submissions put before him by the Department. It is evidenced by the two oral hearings necessary in CI 1698 1997. And it is evidenced by the shifts in Departmental views in the submissions on this case.
10. The difficulties in this case arise for two reasons:
11. 1 The case straddles three separate but relevant changes in the law. This derives from the unfortunate series of delays in this case that mean, in effect, I am today being asked to deal for the first time with the consequences of a claim made in 1991 or 1992. The three changes are: the abolition of disability grants for smaller industrial injuries in 1986; the change in the definition of "claim" in March 1992; and the abolition of claims for unforeseen aggravation altogether in 1999. Of these, the third is easiest to deal with. It is now established that existing claims for unforeseen aggravation survived the repeal of the relevant parts of the Social Security Administration Act 1992, so that this case can continue to be determined without reference to the 1998 Act.
12. 2 There is a small but crucial dispute about when the key application was made, and this has never been properly resolved.

The claimant's submissions on the appeal

13. I summarise the evidence and arguments of the claimant and Mr Kennedy as follows: The first injury to the right shoulder occurred in 1977. It was assessed at 5% disablement from 12. 2. 1979 for life on 15 June 1979. That decision resulted in the payment of a disablement gratuity to the claimant. When the claimant injured his right shoulder the second time while at work, in February 1991, he was off work for a period. As the shoulder did not recover, he had treatment that resulted in a repair operation in October 1991. Shortly before the operation, he asked for the second injury to the shoulder to taken into account as a review for unforeseen aggravation of the original injury. It was, and is, his view that the real effect of the second injury was to make the damage caused by the initial injury far worse, rather than to cause a new injury. But he was told that he should, instead, claim both for a new injury and also unforeseen aggravation of the first injury. That he did.
14. His disablement from the second shoulder accident was assessed in November 1991 at 20%, offset by 5% for the previous injury, for one year. No assessment was made at that time (as it should have been made) of any unforeseen aggravation of the first injury. When the claimant queried this, he was told that the review for unforeseen aggravation had been overlooked, and he was asked to apply for another review. That he did, in March 1992, but in reality he was still maintaining his 1991 application as it had not been determined. The assessment of that claim, not carried out until September 1992, was a finding that there was no unforeseen aggravation, that the subsequent dislocation and operation were recorded as "O (post)", and that the disablement was 5%. The claimant was not happy with that, because by that time the operation had removed evidence of the first injury and because there had been no combined review of both the first and second injuries. The decision of the adjudicating medical authority on the application dated 20 March 1992 was the decision that went before the medical appeal tribunal in 1995, and which resulted in the 5% assessment now in dispute.
15. It was submitted on that basis that the claim for unforeseen aggravation of the first shoulder injury by the second shoulder accident was made in September 1991 and not 20 March 1992, the 1992 application merely being a renewal of an undetermined previous application. The importance of this date is that if the application was made in 1991, it could be regarded as a "claim". If made on 20 March 1992, it could not. This was because of a change in the definition of "claim" that took effect earlier in 1992.

When was the application for review for unforeseen aggravation made?

16. The medical appeal tribunal in January 1995 does not appear to have been asked to, and did not, identify when the application on which its decision was taken was first made. It had before it an application said to be dated 20. 3. 92, but the date of that application was not relevant to its considerations.
17. The date was relevant (indeed it can now be seen to be central) to the considerations of the social security appeal tribunal in 1996, but its record contains no relevant finding. The tribunal's finding of fact was;

"Facts as set out in box 5 of AO's summary were agreed by the parties and so found by the Tribunal."

Box 5 contains no relevant finding. In the tribunal's reasons, it indicates that it did not accept the claimant's argument that the application for unforeseen aggravation was a fresh claim, but it does not give the factual basis for that decision. That "hole" in the tribunal's decision, as it was termed at the oral hearing, means that the tribunal failed to state its findings and reasons adequately. Mr Heath conceded at the hearing that this may amount to a technical error of law as the finding is a necessary one to the logic of the decision. But it was accepted by the parties, to adopt a phrase used in the hearing, that it might be cured, in effect, by a "sticking plaster". In other words, both parties accepted the suggestion that I should make good this gap in the record, if necessary by concluding that the tribunal had erred, and then go on to consider the arguments of the parties on the basis of a determination of when the application was made. As it was urged, with some justification, that the argument of the claimant would fail if the application was found not to have been made until 20. 3. 92, I consider that question first.

18. The tribunal's decision in 1996 was:

"We disagree with the appellant's submission that CI 522 1993 accepted that an application for unforeseen aggravation was a fresh claim. The appellant did not produce to us CI 515 1989. In paragraph 7(1) the Commissioner, in dealing with the argument, said that it had the attraction of simplicity but he went on to ask himself the question why should a gratuity not be taken into account. Without expressly ruling on that point he nevertheless went on to follow decision R(I) 11/67 that a gratuity expired after 7 years."

While that is a fair summary of the relevant paragraph from the Commissioner's decision, it leaves the matter undecided. The tribunal established that CI 522 1993 did not, in its view, support the claimant's argument, but then failed itself to decide clearly what was its view on the submission. I am also unable to draw any support for this case from the report of CI 522 1993 because a vital piece of information (when the relevant application for unforeseen aggravation was made) is not in the decision. It is necessary to consider if the application was before or after the date of the change of law in issue in this case.

19. Does CI 515 1989 help? It is not the clearest of decisions, not least because the main decision of the Commissioner is that the tribunal decision under appeal must be set aside because it was not clear from its decision why the claimant in that case did not succeed in his appeal. However, it does adopt an argument of an adjudication officer accepting that an application for review on the basis of unforeseen aggravation made in 1987 about an industrial accident in 1979 was a "claim" for the purposes of aggregating disablement awards under the post-1986 rules. If the claimant in this case made his application under the same rules as those applying in CI 515 1989, then that decision is authority for the claimant's argument. CI 522 1993 does not comment on the issue. It is therefore not authority for the proposition that the tribunal bases on it.
20. The critical date is the date on which the rule applied in CI 515 1989 were changed. The rule is the definition of "claim" in the Social Security (Claims and Payments) Regulations 1987. The date of change was 9 March 1992 (see SI 1992 No 247). Before that date an application for unforeseen aggravation was a claim. After that date it was not. Hence the argument between the parties on this point. The claimant states that he made his claim in September 1991, while a copy of an application form dated 20 March 1992 was produced to me at the hearing as, it was submitted by the Secretary of State, the key document.
21. I must conclude that the tribunal erred in law in not dealing adequately with this point. That it did not do so is, in part, evidenced by the fact that what was said to be the key document is only now produced. I could at that point end this decision, set the tribunal decision aside, and refer the matter back to a new tribunal. However, as the parties accepted at the hearing, it is clearly expedient that the matter is moved forward as far as possible at this stage. I therefore consider my own finding about the missing date.
22. My view is that the claimant has established to my satisfaction that the claim for unforeseen aggravation was probably made – or first made, which is what matters as there was no resolution of the claim until much later – in September or early October 1991. Mr Heath conceded that was a reasonable explanation of what happened in 1991 and 1992 about assessing the first shoulder injury. I put it more strongly. It seems the most probable account of why the first assessment of the second shoulder injury to the right should did not also consider the question of unforeseen aggravation of the first shoulder injury at the same time. That would have been the obvious thing to have happened. It also explains why the claim form for unforeseen aggravation of the first shoulder injury was filled in when it was, and not earlier.
23. To put a precise date on the application, I give it the same date as the application in respect of the second shoulder injury, as that is the most likely date, in the absence of the original form. That date is, however, not in the papers. If it is relevant to determine a specific date, I put it on or about 30 September 1991 as that is a few days before the operation on the shoulder. I therefore accept the submission for the claimant that the application for unforeseen aggravation of the first injury to the shoulder was a "claim" for current purposes, and therefore a fresh claim. It predated the change in the wording of regulation 2 of the Social Security (Claims and Payments) Regulations 1987 on 9 March 1992. CI 515 1989 is to be applied in interpreting that regulation. I therefore reject the submissions of the Secretary of State to the opposite effect, that the application was merely an application for a review under section 47(4) of the Social Security Administration Act 1992, and not a claim.

What decision was made by the medical appeal tribunal on the claim?

24. The next stage in the claimant's argument was that the medical appeal tribunal in 1995 made a decision on the claim. This, at first, seems a weaker argument. And, unlike the previous argument, it must be based on documents that are in the case papers. The submission for the Secretary of State is that:

"It is clear that the claim for unforeseen aggravation was disallowed by the adjudicating medical authority and this decision was upheld by the medical appeal tribunal on appeal (see page 42). It is difficult to see therefore that the MAT made a fresh determination when, in fact, there was nothing to determine." (Document 86, paragraph 4)

25. The formal decision of the medical appeal tribunal on 4 January 1995 was:

The decision of the adjudicating medical authority is confirmed.

From 12. 2. 79 there is a loss of faculty identified as follows: -

Impaired lifting resulting in the disablement from the relevant accident.

We are not satisfied that since the decision of the Medical Board dated 15. 6. 79 there has been an unforeseen aggravation of the results of the relevant injury.

The extent of the disablement resulting from the loss of faculty is to be assessed at 5% for the period 12. 2. 79 for life.

This is a final assessment.

26. The decision of the adjudicating medical authority said to be confirmed was a decision that there was no unforeseen aggravation. The adjudicating medical authority did not assess or reassess the injury. The assessment at 5% had been made by a different adjudicating medical authority on 15 June 1979. Mr Kennedy argued that the decision of the medical appeal tribunal was not only a determination of a fresh claim by the medical appeal tribunal but also a fresh determination. His point in part is that the medical appeal tribunal made assessments on each of the other three injuries, and it did exactly the same thing on this injury. It must be said that there is some substance in this representation in that the medical appeal tribunal went beyond a mere refusal to accept unforeseen aggravation, to state - or restate - the level of disablement. Mr Kennedy sought to buttress this at the oral hearing by noting minor inconsistencies in the dates of the various decisions, but I am not sure that strengthens his case. His argument must rest on whether the decision of the medical appeal tribunal is a decision of the tribunal or whether, as the Secretary of State submitted, "there was nothing to determine".
27. With a little hesitation, I accept this part of Mr Kennedy's argument also. It is, in my view, too late at this time to go back and look at why the tribunal took the precise decision it took, or whether it was right to do so. To do so would be to open up a decision that must now be regarded as final. This is the principle entrenched in section 60 of the Social Security Administration Act 1992 and now in section 17 of the Social Security Act 1998. While the procedures under the Social Security Administration Act 1992 have now been repealed (save for transitional cases), those provisions acted to protect decisions of medical appeal tribunals. Section 47(7) of the Social Security Administration Act 1992 provided that a decision made, confirmed or varied by a medical appeal tribunal could only be reviewed with leave of a medical appeal tribunal. The relevant procedure was in regulation 41 of the Social Security (Adjudication) Regulations 1995. What the tribunal did was to convert what had been an adjudicating medical authority decision into a medical appeal tribunal decision, and so brought it within those provisions. There was no appeal or other review of that decision. Nor did the adjudication officer challenge it indirectly in the social security appeal tribunal proceedings. Its decision must stand. It is not a "nothing" but a decision of substantive effect because it created a barrier to any further application or claim dealing with the shoulder. I therefore accept that the medical appeal tribunal in 1995 decided a claim about the first shoulder injury, and again I reject the submission of the Secretary of State to the contrary effect.

Should the 5% be aggregated?

28. These findings mean that I approach the third disputed issue - how the decisions of the medical appeal tribunal are to be aggregated - on the basis argued for by the claimant. The starting point is that there are four decisions by the medical appeal tribunal to be considered, not three. This brings into focus the issue of the rules for aggregation, and the previous Commissioners' decisions in CI 522 1993 and CI 1698 1997.
29. The relevant parts of section 103 of the Social Security Contributions and Benefits Act 1992 provide:

(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 amount to not less than 14 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 any 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 ...

30. The Secretary of State submitted that the section required the 5% relating to the first shoulder injury to be left out of account. That was submitted on the basis, which I have now rejected, that there was in substance no medical appeal tribunal decision, and that what was to be left out of account was the original decision of the adjudicating medical authority in 1979. The submission was also that section 103(2) was clear and unambiguous, and left no room for the 5% to be added as a gratuity had been paid.
31. I do not find section 103 to be clear and unambiguous as it applies to this case. My first problem is the starting point. Section 103(1) sets the premise that the aggregation starts with one decision and then subsection (2) adds the others to it. In this case reference was made throughout to the first, second, etc, accidents without any particular attention being given to the order assigned. But all the relevant determinations were made at the same time by the medical appeal tribunal in 1995. Which, then, is first, in the sense that it is the decision to which the others are to be added? While it may be thought to be whichever of the accidents gives rise individually to an assessment of over 14%, I do not think that is necessary when subsection (1) is read with subsection (2). Two accidents each giving rise to an assessment of 10% would clearly yield an aggregate of 20%. Any other reading would prevent there being any cumulation unless at least one of the accidents resulted in an assessment of at least 14%. But if that is so, then which accident should be the "subsection (1)" accident in this case?
32. The complexities of section 103 arise because the section is dealing with two different sets of approach to assessments applying before and after 1986 in the same provision. The current wording of section 103 derives from the form of its predecessor, section 57 of the Social Security Act 1975, after amendment in 1986. If there is some jarring between section 103(1) (which was not amended in 1986) and section 103(2) (which derives entirely from the amendments made then) it is perhaps because of the legislative history of the section, now hidden by the consolidation.
33. The only fair and sensible answer to the issue should be, in my view, that the section should be applied so that it makes no difference to the claimant which is the "first" accident where, as here, all the assessments were made at the same time. That throws up an obvious anomaly in that the proviso in subsection 103(2)(b) applies to the second and subsequent accidents but not the first accident, to which section 103(1) applies. In other words, if the decision of the tribunal on the first shoulder injury were to be treated as the "first" injury, then it would seem that the payment of the gratuity was not relevant.
34. There are other problems with the wording of subsection (2). One is the meaning of "a final assessment". Did it mean "final" as against "provisional" or did it mean "final" as against "previous" in a timing sense? Which "final assessment" of the first shoulder injury is relevant in this case? Mr Heath submitted at the hearing that it was any final assessment. That could therefore refer back to the 1979 assessment after which the gratuity was paid. But it means ignoring the later medical appeal tribunal decision. Does the word "after" assist in deciding this? Does that mean purely in a timing sense, or in a causative sense? I could possibly have reached the same decision that I come to below on a much narrower ground by finding that the gratuity was not paid "after" the "final" assessment of the 5% in 1995, taking "after" as understood in a temporal sense. But I do not rest the decision on that point.
35. With these points in mind, I turn to see if I am assisted by either CI 522 1993 or CI 1698 1997. It was argued by both parties that, for various reasons, either or both these decisions were wrong and should not be followed by me, or alternatively were to be distinguished from the present decision because the factual bases were different. For the record I add that enquiries have disclosed no other relevant decisions of Commissioners (or the courts) on this issue.
36. I am reluctant in what is already a lengthy decision to embark on a further level of analysis about two decisions both of which were decided after oral argument, both of which are argued fully in the decisions made, both of which appear to reach the same conclusion, and neither of which have been appealed or the subject of subsequent superseding legislation. I confine myself therefore specifically to considering how either or both these decisions assist in resolving the issue before me: is the 5% determined by the medical appeal tribunal in 1995 to be added to the other percentages determined by the medical appeal tribunal in 1995, bearing in mind that the claimant had received a disablement gratuity in 1979 for the same injury as that assessed at 5% in 1995?

CI 522 1993

37. The facts of CI 522 1993 seem superficially similar to those in this case, namely the need to consider aggregating disablement caused by four accidents, one of which did not give rise to unforeseen aggravation. The Commissioner (in paragraph 5) concluded that that accident "can be dismissed from consideration", but did not expand this comment. Does that help here, given that we are looking at the 1995 medical appeal tribunal decision? The claimant's answer to that is clearly rehearsed in paragraph 7(i) of the decision, where Mr Kennedy is noted as drawing on exactly the same arguments as made to me. But while the Commissioner raises a question about those arguments, he does not, in my view, decide them. Instead, his decision is rested on consideration of regulation 85 of the Social Security (Adjudication) Regulations 1984. This was the argument submitted to him by the adjudication officer.

CI 1698 1997

38. CI 1698 1997 is, superficially, less similar to this case. It concerns the aggregation of assessments for two prescribed diseases after a decision about the unforeseen aggravation of the disablement caused by one of them. The first disease was assessed at 7% and then on revision at 8%. The second was assessed at 8%. A gratuity was paid in respect of the assessment at 7%. When the second assessment took place, the adjudication officer assessed the aggregated disablement at 9% (8% for the second disease plus 1% for the extra percentage disablement of the first disease after the unforeseen aggravation assessment). Then the adjudication officer changed this to a 16% assessment allowing the full percentage of both assessments from the date on which the unforeseen aggravation assessment had taken effect. This was done in the light of the decision in CI 522 1993. The appeal by the claimant did not dispute this decision, but was aimed at getting the previous assessments (of the 8% and the unrevised 7%) aggregated.
39. In examining these decisions, the Commissioner first considered the earlier decision CI 522 1993. He took the view that CI 522 1993 decided that gratuities for life or for more than seven years "expired" after seven years (see paragraph 4) because of regulation 85 (the text of which is helpfully set out in CI 1698 1997 at paragraph 5). The Commissioner in CI 1698 1997 disagreed with that view (paragraph 10). His alternative conclusions are stated at paragraphs 13 to 18 of his decision, and I was referred to various parts of those paragraphs in the hearing of this case.
40. At paragraph 13 the Commissioner identifies the problem I have already noted about what I call the "first" accident and what he called the "primary accident or disease". He noted, as I have, that there is no room in section 103(1) for a deduction on the ground of a previously awarded gratuity. He also accepts, as I have, that the first or primary accident can be one with an assessment of less than 14%. In his case, he took the "first" disease to be the one first assessed (although it is not the one that was first suffered by the claimant). He also took the "final assessment" of that disease to be the assessment on the review for unforeseen aggravation. I also note that the application for review on the grounds of unforeseen aggravation in that case was not a "claim" as it came after the change in the definition of "claim". That paragraph also gives what I take to be the Commissioner's decision, namely that there is no room for deduction in respect of the gratuity from the 8% of the 7% for which the gratuity was paid under section 103(1). His argument related to the question of expiry of a gratuity after seven years is couched as an alternative argument "if I am wrong about this interpretation". In my view, the Commissioner is not wrong about that interpretation, in which I concur.

My decision

41. I am left with the view that section 103 creates a problem in a case such as this to which it provides no express answer: if there are more than one assessment of disablements resulting from industrial accidents to be aggregated, and the decisions are all taken at the same time, which comes first? The only fair conclusion, in my view, is: if treating different accidents as "first" creates different levels of disablement such that the final aggregated assessment is affected, then the claimant should have the benefit of the order of aggregation most beneficial to the claimant. I stress that I regard that as fair simply because, in this case, all the relevant assessments were made at the same time. Applying the words of section 103(2) as understood by the Commissioner in CI 1698 1997, all the final assessments were made by the medical appeal tribunal together. There may be arguments in other cases that some temporal or other sequential order might be followed. But I see none here of relevance. The only sensible order from the facts would be to treat the first shoulder injury as being "first" rather than the second shoulder injury, but I see no reason why the knee injuries, similarly ordered, should be treated as "first" rather than the shoulder injuries simply because the first knee injury happened first. In any event, it is probably better to argue that the first shoulder injury happened "first" because the dates from which the awards by the tribunal started showed that the initial date of assessment of the first shoulder injury was first, the others taking effect later and therefore to be added to it as they started.
42. On that basis, I conclude that the claimant's appeal succeeds, and the 5% should be added. But, like the Commissioner in CI 1698 1997, I think it right to look at the alternative arguments should I be wrong. However, I do so briefly. The conclusions of both Commissioners in the two cases discussed is that the effect of a disablement gratuity should be taken out of account seven years after the effective date of award of the gratuity. In CI 522 1993 the Commissioner decided this by adopting the argument of the adjudication officer. In CI 1698 1997 the Commissioner disagreed with that basis of decision although it appears that the decisions under appeal had been taken on the basis of CI 522 1993. Instead, he came to the same conclusion based on an interpretation of section 103 in the light of the "overall scheme of aggregation of assessments" (paragraph 18).
43. The main challenge to that conclusion by the Secretary of State in the written submissions in this case was that CI 1698 1997 was per incuriam. Mr Heath, at the oral hearing, did not seek to sustain that criticism. Having considered the matter, I can see no basis for saying CI 1698 1997 was per incuriam, regardless of whether it was right or wrong as a matter of law. It took into account the only other decisions that might be thought to be relevant - and no one has drawn my attention to any other then or since. It took into account, as I have done, the absence of a full set of rules to deal with all the eventualities that can arise under section 103. And it took into account the broader legislative framework applying to cases where some awards for industrial injuries disablement benefit were made before the changes in 1986 and some after.
44. I think it sufficient to say that had I had not adopted the approach I did to section 103 (and for which I find support in CI 1698 1997), I would have followed the alternative approach of the Commissioner in that case. I do so following the general principles of R(I) 12/75, having noted that in CI 1698 1997 the Commissioner heard full argument about that decision and also about CI 522 1993. He reached the same conclusion as the previous Commissioner. In considering if I should prefer one of the decisions to the other, I am not being asked to choose between conflicting decisions but conflicting reasons for the same decision. I find neither decision refutes or is inconsistent with the arguments I have accepted in this case. I do not find the attempts to distinguish either case from this one convincing. On the basis of the interests of comity, I follow their decisions in so far as I need to do so in this decision, and for the reasons indicated above I follow the reasoning of the later of the two as the basis for so doing. Applied to this decision, that would mean that the gratuity paid in 1979 did not fall to be taken into account in 1996 or even 1992. I find that conclusion supportive of the primary reason for my decision.

David Williams

Commissioner

10 July 2000

[Signed on original on date shown]