UK Social Security and Child Support Commissioners' Decisions

[2001] UKSSCSC CI_3038_2000 (09 April 2001)

 


Commissioners' case no: CI 3038 2000

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. I allow the appeal.
2. The appeal by the claimant is against the decision of the Nottingham appeal tribunal on 8 October 1999. It was brought by permission of the chairman. The decision of the tribunal was that the decision of the Secretary of State was confirmed. The Secretary of State decided that the claimant was not incapable of following his regular occupation as a result of the relevant loss of faculty.
3. For the reasons below, the decision of the tribunal is erroneous in law. I set it aside. The appeal is referred to a new tribunal for rehearing. That tribunal is to consist of members who were not members of any previous tribunal involved in this appeal. The tribunal is to reconsider the case in accordance with this decision.

Background to the appeal

4. The claimant suffers from prescribed disease A11 (commonly known as vibration white finger). The date of onset was 1 January 1987 and disablement was assessed at 5 per cent from and including 16 April 1987 for life. That is not in dispute. The claimant claimed reduced earnings allowance on 20 May 1998. He stated that he had been a miner until September 1997, and then became an operative for another employer. The adjudication officer accepted that he was incapable of following his regular occupation, but decided that this was not due to the relevant loss of faculty and refused the claim.
5. The claimant appealed against this decision quoting the Adjudication Officer's Guide (paragraph 85378) about prescribed disease A11: "claimants with this disease should … be regarded as incapable of their regular occupation, even if their reasons for leaving are unconnected with the relevant loss of faculty". The appeal also referred to a copy of the adjudication officer's submission to the Commissioner in CI 15803 1996 stating that the guidance was based on R(I) 2/81, and a copy of the decision of the deputy Commissioner in that case accepting that R(I) 2/81 and paragraph 85738 are "together" authoritative "for the proposition that claimants with A11 should be regarded as incapable of their regular occupation even if they left for unconnected reasons, since the condition of vibration white finger is a degenerative one which will not improve once contracted".

The tribunal decision

6. The tribunal held an oral hearing. The relevant part of its statement of facts and reasons is:

"It is apparent from what we have heard today that the appellant has a minimal loss of faculty attributable to prescribed disease A11 and has not in fact been incapable of following his regular occupation for all the period we have mentioned above [the period to September 1997 when the claimant left coalmining]. We do not find we have any evidence before us to convince us that he is in fact incapable of following his regular occupation at the present time. The appellant told the tribunal that if the pit at which he worked had not closed, he would have continued to work there. We were told that the claimant did not lose time from work because of prescribed disease A11. We have no evidence before us today of deterioration of the claimant's condition relating to A11 and none has been presented and no application to increase his 5% life assessment for this condition has been sought under the rules applicable for unforeseen aggravation … It has appeared to the tribunal from what we heard, and taking account of the minimal loss of faculty stemming from PDA11 that the appellant has not been incapable of following his regular occupation as a result of the relevant loss of faculty, and we consider the facts of this case to be very different from those indicated in the Commissioner's decision referred to above [CI 15803 1996]…"

Grounds of appeal

7. For the claimant, it was argued that the tribunal had erred in law by failing to consider the conditions of Schedule 7, paragraph 11 "step by step", and in particular paragraph 11(1)(a) and (b)(i). The representative also argued:

"The permanent condition of vibration white finger is an accepted fact. If the Chief Medical Officer of the BAMS issues guidance to this effect and the Central Adjudication Services subsequently issue the same guidance to the then Adjudication Officers (now Decision Makers) then [the claimant] is entitled to expect these guides be followed."

This argument was, in effect, that the tribunal should have applied CI 15803 1996 as it covered the exact point in this decision. The chairman endorsed a grant of leave against these grounds, noting on a separate document that there were currently a large number of appeals raising similar points.

8. The submission from the Secretary of State's representative supported the appeal.

But it did so because, in its view, the tribunal had failed to make adequate findings of fact. The point at issue was whether the claimant's incapacity to follow his regular occupation was as a result of the relevant loss of faculty. The Secretary of State's representative submitted that the tribunal had decided that the incapacity from following the regular occupation was not because of the prescribed disease on the basis o

f the claimant's own evidence that he continued working in the mine until September 1997, and that he would not have left the mine if he had not been made redundant then. He submitted that this was too narrow a basis for deciding the question, that the tribunal had not made findings of fact about the wider context of the question, namely any future damage to the claimant or risk to others, and that it had failed adequately to explain its decision.

The test to be applied

9. The relevant part of paragraph 11 of Schedule 7 to the Social Security Contributions and Benefits Act 1992 (reduced earnings allowance) is:

"An employed earner shall be entitled to reduced earnings allowance if … disablement is assessed at not less than 1 per cent … and … as a result of the relevant loss of faculty, he is … incapable and likely to remain permanently incapable, of following his regular occupation …"

Applying the test

10. Applying that test is a question of fact, subject to proper interpretation of the legislation. The relevant loss of faculty is that found in assessing the claim for disablement benefit: R(I) 7/64. It is not disputed that the claimant has prescribed disease A11 with disablement assessed for life at not less than 1 per cent. The relevant loss of faculty was described as "episodic blanching of hands" (documents 35 and 37). It is also not disputed that the regular occupation of the claimant was as a coalface worker in the mines, making regular use of power tools (although the tribunal makes no finding of fact about this).
11. On the question of causation ("as a result of…"), the claimant stated to the medical authorities that he was unable to fulfill the requirements of his regular occupation because he was unable to use power tools. The reason he gave was that further exposure would result in deterioration in the condition of his hands (document 37). The adjudicating medical authority was asked the following standard questions in the report form (the answers are in inverted commas):

Is the customer capable of their regular occupation? "No"

Does the loss of faculty … contribute materially to their incapacity for their regular occupation? "No"

Please give your reasons and say what other conditions prevent the customer following their regular occupation. "The vascularity of both hands were normal today – with good capillary refill".

The form of those questions reflects the interpretation of the test by Commissioners in such cases as R(I) 29/51. Had the adjudicating medical authority properly and adequately answered those questions, then there would be a firm foundation for the decision before the tribunal. But the reason given by the adjudicating medical authority, in my view, is totally inadequate. The fact that blanching did not occur on that particular day is not relevant to the claimant' continuing capacity to work in his regular occupation (as against its relevance to determining the underlying issue of diagnosis). It is not a reason for the answers given by the adjudicating medical authority. There may have been other reasons but those are not stated. There is also no attempt to answer the point made by the claimant to, and recorded by, the adjudicating medical authority as a reason for the claimant being incapable of following his regular occupation. Neither the Secretary of State in the reconsideration nor the Secretary of State's representative in the submission to the tribunal tackle this defect in the adjudicating medical authority's decision.

12. Did the tribunal properly and adequately answer these questions? If it did, then that would make good the errors of the adjudicating medical authority and Secretary of State. It did not. Its answer to the first question was "No". Its reason, extracted from the passage quoted above, is: "we do not find we have any evidence before us to convince us that he is in fact incapable of following his regular occupation at the present time." But it did have such evidence in both the claimant's statement that had he continued in mining his condition would have worsened and in the more general proposition that this was the normal course of that disease. The claimant, when asked this, gave an entirely proper answer: if I continue at this work, my hands will get worse. That is precisely the point made in paragraph 85378 in the Adjudication Officers' Guide. Despite the fact that the point was clearly in issue before the tribunal, it failed to deal with it. I agree with the submissions that the tribunal did not make the necessary findings of fact to decide if the claimant was capable of continuing his regular occupation. It therefore failed to make good the failures of the adjudicating medical authority and Secretary of State to deal with it. It also applied the wrong burden of proof. The task of the claimant was not to convince the tribunal (which implies the criminal burden of proof that the tribunal had to be sure, or something approaching it) but to show the tribunal that on the balance of probabilities the prescribed disease materially contributed to an incapacity to continue the regular occupation. For these reasons, I must set aside the decision of the tribunal and refer the matter to a new tribunal so that it is dealt with.

The general guidance

13. The argument for the claimant puts the issue in another way, which I must also consider in order to direct the new tribunal. Prescribed disease A11 is degenerative and, once he or she has contracted it, a claimant will not improve. This statement in the quoted paragraph of guidance is stated as a medical fact. I accept it as such. The guidance adds "Claimants with this disease should therefore be regarded as incapable of their regular occupation." That is not a statement of law, but guidance as to an assumption of fact predicated on the previous statement. As usual with such guidance, it contains hidden assumptions. One is that prescribed disease A11 can only be prescribed when the disease has reached a level of intensity sufficient to meet the statutory test. As in this case, once the disease is prescribable it seems (from my own experience as a tribunal chairman and Commissioner) commonly to be assessed at levels of disablement ranging between 4% and 10% from the date of prescription. In other words, to be prescribed, the condition must not only have been contracted, but will have reached recordable levels of disablement. The adjudication officer 's submission to the tribunal in CI 15803 1996 used the phrase "considerably damaged" to make the same point. To term that as "minimal", as the tribunal did in this case, is in my view wrong in the context of a degenerative disease where the award is going to be a minimum level of life award. "Minimal" in this context can only usefully mean less than 1%.
14. Another assumption in the guidance is that once that level of degeneration is reached, a person suffering from it should not be expected to continue in the regular occupation. That is also an assumption of fact. It is based, the adjudication officer states, on an analogy with the guidance of the Commissioner in R(I) 2/81 dealing with the degenerative disease of occupational deafness. The proposition of law from that decision, as I understand it, is that it is not erroneous in law to conclude that a person suffering a degenerative disease, caused by continued exposure in a regular occupation, and now of a sufficient intensity to be prescribed, may be found to be incapable of remaining in that occupation because of the totality of risks of the continued exposure to the claimant and others. The adjudication officer 's submission to the Commissioner in CI 15803 1996 commented that in the case of A11 the risk was both impaired grip and also "a danger that they might drop tools and thus injure themselves or workmates." Whether that is so, is a question of fact. The tribunal in this case has failed to consider it.

CI 15803 1996

15. The claimant's argument is, in substance, that CI 158093 1996 has turned the issue into a question of law. The claimant, understandably, argues that this is not permissive but mandatory – the claimant must be regarded as incapable of his regular occupation. The deputy Commissioner in CI 15803 1996 relies on R (I) 2/81 and the paragraph of guidance to conclude that those suffering from A11 "should be regarded as incapable of their regular occupation" (paragraph 3). If that decision is read as if "should" means "must", that there is a general rule of law that tribunals must in all cases, regardless of the full evidence, assume that a claimant with prescribed disease A11 cannot continue his regular occupation, then I respectfully disagree. In my view, there is no such rule of law. It may be a sensible medical assumption, but it remains a question of fact. No such rule can be deduced from R (I) 2/81, which I take to be authority for the proposition set out in paragraph 14 and no more. Nor is the guidance given to adjudication officers in any sense independently authoritative on the law. What I take the guidance to be doing is suggesting a recommended course of action to an adjudication officer once A11 is prescribed.

Was the general guidance binding?

16. The claimant has an alternative argument: the adjudication officer and tribunal should have followed the official guidance. This raises much wider issues about the status of the official guidance. There may be an argument to be based on legitimate expectation where a statutory authority indicates publicly and clearly that it will act in a certain way when a specific issue arises, and where a claimant can show personal detriment in relying on that assumption. But it does not arise here. The guidance did not bind adjudication officers or adjudicating medical authorities, who were independent officers. As the Adjudication Officers' Guide has now been replaced by Decision Maker's Guide and adjudication officers and adjudicating medical authorities have been abolished, it may be that the equivalent statement now published in the Decision Maker's Guide has a different status because it is published in the name of the Secretary of State about decisions also to be made in the name of the Secretary of State, without any independent officer being involved. But I do not have to decide this. There is a further reason why this argument of the claimant must fail as a ground of appeal on the facts of this case. My criticism of the decision of the tribunal, and the underlying decision of the adjudicating medical authority, is that they fail to deal with the issue behind the assumption (whether the claimant should continue in his regular occupation), so they did not even get to the stage of considering whether they should follow the official guidance. My direction to the new tribunal is that it should consider and make its own findings on the issue, but that neither it nor the adjudicating medical authority nor adjudication officer are bound in law to follow the official guidance.

David Williams

Commissioner

23 March 2001