UK Social Security and Child Support Commissioners' Decisions

 


File number: CI 1 2002

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. I dismiss the appeal. For the reasons below, the decision of the tribunal is not erroneous in law.
2. The appellant is appealing, with permission of the chairman, against the decision of the Leeds appeal tribunal on 29 October 2001 under reference U 01 007 2000 01543. The decision of the tribunal was that the extent of the disablement that the appellant was suffering from the prescribed disease A 10 (occupational deafness) was to be assessed at less than 20% from 3. 4. 2000 for life.
3. The tribunal reached its decision after an oral hearing at which the appellant was present and represented. A previous tribunal had adjourned for the appellant to obtain his own audiometry test, but he had been unable to afford it. The tribunal was invited to direct that a new hearing test be conducted. It noted that the decision under appeal was that the appellant was suffering from disablement from his occupational deafness of less than 20% from 3. 4. 2000 following the reassessment on 25. 11. 99. There was a previous assessment of disablement of 24% for the five years to 2. 4. 2000. The previous assessment was based on both a cortical evoked response audiogram (CERA) and a pure tone audiogram (PTA). The more recent assessment was based only on a PTA. The tribunal decided:

It was clear from reading [CI 4567 1999] that whilst [CERA] conducted in that case was said to be the most reliable test appertaining to that case it was not to be taken as a generalisation. In any event it was the opinion of the medical member of the tribunal that the [CERA] was not a more reliable test than the [PTA].

The tribunal was not prepared to direct that a report be obtained by the Appeals Service on the issue of cost alone. In any event the appellant had had an adjournment for a significant period and during which a request could have been made.

4. The issue taken by the representative before the tribunal, and again before the Commissioner, was whether the tribunal was wrong in law in refusing to seek a CERA in addition to the PTA. The appellant's representative argued on the basis of CI 4567 1999 that the tribunal erred in law in relying only on a PTA.
5. I directed a full submission from the secretary of state's representative on the issue of hearing tests, including the point being made by the representative about the distinction between CERA and PTA techniques. That submission referred in detail to CI 4567 1999 and to the appendix to that decision that set out the views of Dr Susan Reed of the (then) DSS Medical Policy Group. As that decision is in the papers in the form downloaded from a website, and it has been circulated, I do not propose to repeat it and the appendix at length in this decision.
6. In CI 4567 1999 the appellant was arguing the opposite of the argument in this case. The tribunal in that case reached a decision based on the CERA results. These were less favourable to the appellant than the PTA results. The tribunal in that case found that in its judgment the CERA was the test most likely to represent on the balance of probabilities the true level of hearing of that claimant. The Commissioner decided that the tribunal did not err in law in reaching that decision. It is clear from the Commissioner's decision that there were special reasons why the PTA had lost credibility in that case. The Commissioner stated of the view of the tribunal deciding to rely on the CERA (at paragraph 11):

"That is a view which is not irrational or perverse and one which they were entitled to hold. It is not a decision in which, therefore, I can interfere."

7. The appellant's representative responded to the submission of the secretary of state's representative in this case by pointing out that the Secretary of State had originally sent the appellant for a CERA because the PTA showed deafness over 50dB. The CERA confirmed the PTA. In the view of the representative the Secretary of State was now adopting the contrary view to the previous view. That may or may not be so, but even if it is so that is not the matter before me. The issue before me is whether the tribunal erred in law.
8. In my view, I should take exactly the same position as the Commissioner in CI 4567 1999, although it is to the reverse effect to that of the other tribunal. It is to be remembered that it is the tribunals that are the experts in these cases, not the Commissioners. The tribunal in this case relied on its own expertise to reach the conclusion that a CERA would not be more reliable than a PTA.
9. There is a detailed regulation in the Social Security (Prescribed Diseases) regulations 1985 (regulation 34) about assessment of disablement in occupational deafness cases. That gives precise details about testing and assessment, but it does not lay down the details of the methods of testing. That confirms, in my view, that it is for the experts to decide this issue, not Commissioners.
10. When directing a submission from the secretary of state's representative, I also noted that there might be an additional argument based on the right to a fair hearing under the European Convention on Human Rights and Human Rights Act 1998. This was that the tribunal might have erred in law by refusing a fair hearing if it refused to direct an additional audiogram be obtained, as the appellant was unable himself to afford it, if the case could not properly be considered without it. The statement of the tribunal (set out above) seemed ambiguous on that point. My decision is that the tribunal made no error of law in deciding that a CERA is not necessary in this case, and therefore the point does not arise. However, I note that the secretary of state's representative did not dispute the general proposition that the cost of obtaining a report was not of itself a reasonable ground for refusing the test. If the tribunal was stating that it refused to direct a test simply because of the cost, then it was wrong. But it is not clear that that is what the tribunal meant, and in any event its decision did not depend on this point. If it was an error it was not an operative error of law.

David Williams

Commissioner

21 May 2002

[Signed on the original on the date shown]