UK Social Security and Child Support Commissioners' Decisions

[2003] UKSSCSC CI_1293_2003 (30 September 2003)

 
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. My decision is as follows. It is given under section 14(8)(a)(ii) of the Social Security Act 1998.
2. 1. The decision of the Nottingham appeal tribunal under reference U/42/045/2002/03207, held on 13 November 2002, is erroneous in point of law.
3. 2. I set it aside, make a finding of fact and give the decision appropriate in the light of that fact.
4. 3. I find as fact that the stump of the claimant's left leg is as measured by his GP - see paragraph 10.
5. 4. My decision is the claimant's disablement is assessed at 50% for life on and from 25 February 2002, after offsetting 5% for the effects of a previous road traffic accident. His entitlement to disablement benefit must be adjusted to reflect this assessment.

The appeal to the Commissioner

6. This is an appeal to a Commissioner against the decision of the appeal tribunal brought by the claimant with the leave of a district chairman of tribunals. Case management directions were given by Mr Commissioner Powell. The case has been transferred to me for decision. The Secretary of State supports the appeal.

The issue

7. The claimant suffered an accident while working as a miner on 17 June 1982. As a result of that accident and after a continuous history of problems, he had an amputation of his left leg below the knee on 6 August 1999. The issue in this case is how the disablement consequent upon that amputation should be assessed. In particular, the issue is how the stump left by the amputation should be measured.

The legislation

8. The issue for the tribunal was the nature and extent of the claimant's disablement attributable by cause or contribution to his accident. Schedule 2 to the Social Security (General Benefit) Regulations 1982 contains figures for disablement arising from specified amputations. Three entries are relevant:

Description of injury	Degree of disablement Per cent	Degree of disablement Per cent
26	Amputation at knee resulting in end-bearing stump or below knee with stump not exceeding 9 centimetres	60
27	Amputation below knee with stump exceeding 9 centimetres but not exceeding 13 centimetres	50
28	Amputation below knee with stump exceeding 13 centimetres	40

9. There are 2.54 centimetres to an inch. So, 9 centimetres are equivalent to just over 3½ inches and 13 centimetres are equivalent to just over 5 inches.
10. The significance of the percentages in the Schedule is specified by regulation 11(6). This provides that they are

'subject to such increase or reduction as may be reasonable in the circumstances of the case where, having regard to the provisions of the said Schedule [6] to the [Social Security Contributions and Benefits] Act [1992] and to the foregoing paragraphs of this regulation, that degree of disablement does not provide a reasonable assessment of the extent of disablement resulting from the relevant loss of faculty.'

What the tribunal did

11. The claimant was examined by the medically qualified panel member of the appeal tribunal. He measured the stump and recorded these findings:

'Appellant walked rather uncertainly using two crutches.

'Examined after removal of below knee prosthesis: somewhat floppy soft tissue at the end of the stump, which measured 14.5 cm from the joint line, anterior scar well healed with no signs of inflammation, not unduly tender. Posteriorly where the stump was supported by the insert there was chafing of the skin and some tenderness. Good knee joint movement: full extension, 90 deg. flexion.'

12. The tribunal assessed the claimant's disablement at 40% after making a 5% offset. It explained its assessment in this passage:

'In general terms we agree with the submission from the appellant's representative save for one important point. The stump was carefully measured by the Tribunal at 14.5 cm and under Schedule 2 of the Social Security (General Benefit) Regulations 1982 the prescribed assessment of disablement would therefore be 40%.

'However, we fell that this does not properly reflect the disablement of the appellant because the amputation has not been wholly successful and there are ongoing problems of soreness and rather more restriction of mobility which (sic) were to be expected. There is also pain at the site where the bone graft tissue was removed.'

The appeal

13. The claimant's grounds of appeal were that the tribunal had not correctly measured the stump. His representative pointed out that the Secretary of State's medical adviser had measured the stump at 11 centimetres.
14. Following the hearing, the representative asked the claimant's GP to measure the stump. She wrote:

'I have taken measurements as you have indicated with the patient sitting on a chair with the knee flexed at 90° and measuring from the anterior medial edge of the upper articular surface of his tibia. The actual length to the end of his tibial bone measured 12 cm. If you measure from the anterior medial tibial end with him in this position the total length was 18 cm which included the lax skin dangling down beyond the bone which included fatty tissue and sagging skin.'

That evidence was not, of course, before the appeal tribunal.

The Secretary of State's support for the appeal

15. The Secretary of State supported the appeal on the ground that the tribunal did not record where the measurement of 14 centimetres had begun and ended.

My analysis of the legislation

16. From the legislation that I have quoted, I learn the following.

•    What has to be assessed is not the anatomical loss, but the loss of function consequent upon that loss.

•    The Schedule provides a starting point for that assessment.

•    It depends on the length of the stump.

•    So, the length of the stump must be related to the likely disablement that will result.

•    But the legislation does not specify the start and end points for measurement.

•    Given the possibility of fitting a prosthesis, the length of the stump is likely to relate to the effectiveness of that prosthesis.

The Reports

17. With that in mind, I turned to the Reports that have considered, and led to changes in, the legislation. These confirmed my reasoning and gave more details on the precise considerations that led to the present Schedule.
18. The latest report is that of the 1965 Committee on the Assessment of Disablement (Cmnd 2847). This related the length of the stump to its usefulness for a prosthesis. Paragraphs 40 and 41 are relevant.

'40. Below the knee there are at present two assessment points, one at 3½ inches below and the other at 5 inches. We understand the reasons for the objections raised in evidence to the fact of there being two measurement points within such a short distance of each other, and appreciate that these may seem to gain in force if there is to be an assessment point at the knee itself also as we propose. But with a stump at not less than 3½ inches a prosthesis can usually be satisfactorily fitted and activated by the stump. This is not true of shorter stumps. At the same time, the site of election (that is, the amputation site expected to give the optimum result from a functional point of view) for an amputation below the knee is generally accepted as being 5 inches below the joint, and once this length is exceeded the stump is substantially more efficient in activating the prosthesis than those of 3½ to 5 inches in length. We would therefore propose to retain the assessment of 60 per cent. for amputations through the knee down to 3½ inches below, and 50 per cent. from 3½ to 5 inches below the knee. The 40 per cent. assessment for amputations of more than 5 inches below the knee we also regard as wholly appropriate where there are no special features.

'41. Set out below in diagrammatic form for ease of comparison is the existing assessment scale for leg amputations in accordance with the schedule based on the Hancock Committee's recommendations in the light of experience of developments since the Hancock Committee reported, including an assessment of 100 per cent. for hindquarter amputations (see paragraph 12).

Leg Amputations

Existing assessment scale Per cent		Proposed assessment scale Per cent
	Hindquarter amputation	100
90	Through hip	90
80	Not more than 5 inches below hip	80
70	Not below mid-thigh	70
60	Not through or below knee	Not through or below knee
Not through or below knee	Through knee or not more than 3½ inches below	60
50	Not more than 5 inches below knee	50
40	[Left blank in original]	40

19. The reference, in paragraph 41 of that quotation, to the Hancock Committee is to the 1947 Report of the Inter-departmental Committee on the Assessment of Disablement due to Specified Injuries (Cmd 7076). I am grateful to the Secretary of State's representative and to Dr Susan Reed for obtaining a copy of this report for me.
20. The relevant passages from the Report are these:

'I. General Principles

'4. In amputation cases, both in the present war-pensions Schedule and in our proposed common Schedule, the assessments are based on the assumption that the injured person can wear the appropriate artificial limb, and therefore vary according to the length of the stump, the limiting lengths being determined with reference to their suitability for the fitting of artificial limbs. …'

'II. INJURIES ASSESSED AT 20 PER CENT. AND OVER

B. Lower Limb Amputations

'16. The first three items of this section of the present war-pensions Schedule specific the cases of double amputation which are assessed at 100 per cent. They are:-

…

(iii) Amputation of one leg lower than 4 inches below the knee and loss of other foot.

We propose no change in these items except the substitution of 5 for 4 inches, which is consequent on the alterations indicated in paragraph 19 below.

'17. We consider that the injury specified in the present Schedule as "amputation at hip or below hip with stump not exceeding 5 inches in length measured from tip of great trochanter" (present assessment of 80 per cent.) covers too wide a range, and that although all cases included in this description are normally fitted with the same type of artificial limb, there is particular difficulty where the site of the amputation is through the hip-joint in wearing and controlling the appliance. …'

'19. The ex-service organisations, in evidence before the Committee, have commented adversely on the difference of 20 per cent. between the existing assessment for:

(a) amputation below middle thigh to 4 inches below knee (60 per cent.), and

(b) below knee with stump exceeding 4 inches (40 per cent.).

The important factor in these cases is the ability to use the natural knee-joint and to take the weight on the stump, and we consider that, between the person who has this ability and the person who has not, a difference of 20 per cent. in the assessment fairly represents the difference in the degree of disablement. We are of the opinion, however, that there is an intermediate length of stump, between 3½ and 5 inches, which is sufficient to give full use of the natural knee-joint, but not sufficient to enable all the weight to be taken by the stump, and we consider that such an amputation should be assessed at 50 per cent. …'

21. So, these extracts confirm my suspicion from reading the legislation that the length of the stump is related to its effectiveness for a prosthesis. However, this still leaves the question: where do the measurements begin and end?

The guidance to medical advisers

22. The only guidance on this is that given to medical advisers. That guidance contains the following advice on measuring the stump:

'Notes on certain specific injuries

'Limb amputation cases

'Stump measurements

'The first points of measurement are:

…

Below knee: Anterio-medial edge of the upper articular surface of the tibia when the knee is flexed.

'The second point of measurement is:

All cases Over the end of the bone as palpated through the skin or scar tissue. In a below the knee case this will be the end of the tibia and not the end of the fibula, and the measurement will be taken on the inner aspect of the stump and not, as in the above the knee cases, on the outer aspect.'

The Secretary of State's observations include a report from Dr Susan Reed. Her reports are always informative, although I must caution myself that they tend to represent evidence rather than submissions. In this case, her report contains three useful pieces of information.

First, the guidance that I have quoted dates back at least as far as the early 1960s for disablement benefit and at least as far as the mid-1970s for war pensions.

Second, the guidance is important to ensure uniformity. The former dedicated Artificial Limb and Appliance Centres were abolished in the mid-1980s. Those Centres issued a 'stump certificate' containing an accurate measurement of the stump.

Third, as prostheses are more effective than in the past, the Scheduled assessments may be higher than would be considered appropriate today. (This is something that can be taken into account under regulation 11(6).)

Conclusion

In a perfect world, the precise measurement would not matter. The tribunal would take account of the Scheduled assessments as a whole. It would realise that the length of the stump would affect the effectiveness of the prosthesis, which would affect the claimant's disablement. It would take account of the Scheduled assessment only as a starting point. It would adjust this as authorised by regulation 11(6). This process of adjustment, with a focus on disablement, would counteract any variation between adjudicating authorities on the precise way in which the measurement was taken.

But life, in my experience, is not always perfect. This analysis presupposes an impossible degree of precision on a matter that is imprecise and impressionistic. In practice, tribunals begin their assessment of disablement with the Scheduled assessment, if there is one. That is the proper approach under regulation 11(6). Despite the infinite flexibility that regulation 11(6) allows in theory, the reality is that the starting point of the Scheduled assessment will affect the outcome.

Disablement depends on the effectiveness of the prosthesis. That depends on the length of bone rather than soft tissue. So, it is obvious that it is only the supporting bone that should be measured. The key bone is the tibia, not the fibula. As the tibia is the inner of the two bones in the lower limb, the measurement should be made on the inner surface of the remaining stump, not the outer. So far, the Secretary of State's guidance does no more than put those conclusions into medical language. All that remains is the position of the leg when the measurement is taken. The Secretary of State recommends that the knee be flexed, which obviously is the best way to obtain the precise measurement required. In conclusion, therefore, the Secretary of State's guidance agrees with the measurement that can be deduced by normal interpretive principles from the legislation.

My decision

A rehearing is not necessary in this case. This is a suitable case in which to substitute a decision for that of the tribunal. The parties are agreed that the tribunal went wrong in law. I agree. That allows me to take account of evidence that was not before the tribunal. The GP's is the only evidence that reveals how the measurement was taken. I accept that evidence. On the basis of that evidence, the Scheduled assessment was 50%, not the 40% used by the tribunal. I accept all the reasoning of the tribunal, except its starting point at 40%. That increases the final net assessment from 40% to 50%.

Signed on original

Edward Jacobs Commissioner 30 September 2003