UK Social Security and Child Support Commissioners' Decisions

[2003] UKSSCSC CI_5029_2002 (25 July 2003)

 


1. This appeal, brought with my leave, succeeds. The decision of the tribunal on 21 8 02 was erroneous in law, as explained below. I set it aside and remit the appeal to a differently-constituted tribunal for rehearing.
2. I held an oral hearing at which the claimant was represented by Sally Robertson of counsel, instructed by Russell, Jones & Walker, and the Secretary of State by Leo Scoon of the Solicitor's Office. Observers were present on both sides, including Mr A Timms, who had prepared a number of very careful submissions on the claimant's behalf. The claimant himself gave evidence. I am grateful to both advocates, and to Mr Timms, for their submissions.
3. The claimant is a retired police officer. He was exposed to noise as a motor cycle traffic patrol officer from 1973 to retirement in 1996, to noise through communications equipment, and (all that is relevant to the present assessment) to firearms noise while learning and practising shooting from October 1977 to August 1987. He became a tactical firearms officer. His audiograms show a notch at 6kH which Mr Proops in 1999 said was characteristic of percussive noise being the underlying causative agent. Mr Wilson, who reported a consultation in April 2002 and provided a further report in May 2003, is not quite so categorical, speaking only of the pattern being of noise-induced damage to the cochlea. But he does note in his latest report that the claimant's left ear is worse affected than his right, which is characteristic of a right-handed, right-eye-dominant person like the claimant when firearms are used. The claimant kindly demonstrated at the hearing how this would come about. Mr Wilson had an MRI scan done, which excluded any other underlying pathology.
4. The claimant has since 1994 done clay pigeon shooting as a hobby, but he says the ear protection is much better than that provided for the police, and he has provided a table at page 92 showing that he does not indulge in this hobby particularly often.
5. The claimant told me that he first noticed his hearing was worse than it had been around 1987, shortly before he gave up police shooting. He said when he lay on the sofa on his right side, he could not hear the TV. In the questionnaire he completed on 12 9 98, however, he had said he "first realise[d] his hearing was impaired" on 19 9 96, which was the date of a police audiogram when he was examined in connection with his motor cycle duties and his hearing loss was first ascertained. He is also recorded as telling Dr Khan, the examining doctor, that he first became aware of hearing difficulties in "about 1996". In fact, he told me, although he had noticed some hearing loss in 1987, he had not realised his hearing was "impaired" until he had the audiogram. Certainly he told both Mr Proops and Mr Wilson that he had noticed hearing loss for, respectively, 10 and 15 years.
6. The claimant made a disablement benefit claim on 3 1 01, citing all three causes of hearing loss. As he was not working in a prescribed occupation, the matter had to be treated as one of industrial accident, rather than Prescribed Disease A10. The latest Industrial Injuries Advisory Council (IIAC) report of November 2002 (Cm 5672) recommends that police firearms officer should be a prescribed occupation, but so far as I know this has not yet been implemented. The claimant secured an industrial accident declaration based, we assume, on CI/737/94, where Mr Commissioner Henty accepted as "an" industrial accident a series of incidents at shooting practice where the claimant had suffered temporary deafness and tinnitus. The Commissioner did not venture to date his declaration, but I was told at the hearing that the custom in such cases is to assign the last date in the series as the date of the accident (R(I)43/55). However, in the present case the decision maker assigned the very first date of shooting practice, 3 10 77, as the accident date. A departmental medical officer later altered this to 11 3 96 on the ground that this was the date when hearing loss was (based on the 1998 questionnaire) first noticed.
7. This date is spurious, because 11 3 96 is clearly only the date on which the machine which took the 19 9 96 audiogram was last calibrated (see page 23). But the date of first identifiable hearing loss does have a bearing if it becomes necessary to carry out an apportionment, under regulation 11 of the Social Security (General Benefit) Regulations 1982, of total hearing loss as between firearms noise and any other cause such as motor cycle noise, so as to apply offsets or the greater disablement interaction. It seems to me to have been quite improper for the decision maker to substitute a different date for the accident without reference to the claimant and to withhold (I was told) an explanation at the time. The tribunal did not deal with the point as it should have done. On the other hand, the date originally assigned must also be misleading, as there is no suggestion of any identifiable trauma at the first firearms practice. This question is not before me, but it was suggested by Ms Robertson that the Benefits Agency might like to look again at the accident date before the matter returns to the tribunal for rehearing. Her submission was that all the claimant's hearing loss should be attributed to the firearms practice, given the 6kHz notch on the audiograms.
8. Be that as it may, what we are dealing with here is deafness as the result of an industrial accident, not deafness as a prescribed disease. The normal method of assessing disablement is set out in paragraph 1 of Schedule 6 to the Contributions and Benefits Act 1992. It requires a comparison between the claimant's physical condition (and mental condition if relevant) and that of a person of the same age and sex whose physical condition is normal. No account is to be taken of the particular circumstances of any particular claimant, apart from age and sex. This means that eg loss of earnings, or loss or diminution of the ability to pursue favourite hobbies do not fall to be taken into account, and that the older a claimant is the more the effects of ageing in the comparator must be allowed for. Disabilities resulting from prescribed losses of faculty are to be taken as 100% and other disabilities are to be assessed "accordingly". This is a reference to Schedule 2 to the Social Security (General Benefit) Regulations 1982, which contains a "tariff" of prescribed degrees of disablement for certain conditions; but the only one relating to hearing is number 6, 100% for "absolute deafness".
9. There are guidelines for assessing hearing loss resulting from an industrial accident. These come from the Industrial Injuries Handbook for Adjudicating Medical Authorities, and were before us at the hearing (pages 181-2),. They rely (except for shout not beyond 1 metre) on conversational voice testing at 30cm, 1, 2 and 3 metres, with both ears used together. These figures are followed by notes on how to make assessments, which also advise that other conditions such as tinnitus may warrant an addition to the assessment. I stress that the test is a guideline; it is not statutorily prescribed. It is a fairly rough and ready test, since much would seem to depend on whose conversational voice is used. A common complaint among the hard of hearing whose perception of higher frequencies is affected is that men, whose conversational voices involve lower frequencies, are more readily heard than women. However, the present claimant expressed no difficulty in hearing me throughout the oral hearing at a distance of something over 4 metres. When I put this to him, he said it was because I was facing him. It might have been different if I had been out of his range of vision. I asked him whether he was in the habit of asking people to speak into his better ear, as can happen with people who have differential hearing loss, but he said this only occurred in meetings.
10. Dr Khan, who carried out the examination which informed the decision maker, seems to have been confused about what he was doing. He says (page 30) he carried out a "whisper" (not a conversational voice) test, and recorded that the claimant could hear him with both ears at 1 and 2 metres. But he said nothing about 3 metres, so we are left wondering whether the claimant did not hear him at that distance, or whether he did not carry out a 3-metre test at all. The claimant says he thinks he did, since there was a period of time when the doctor was out of his sight and nothing seemed to be happening. It is also not quite clear to me whether the tests that were done involved both ears open or whether the claimant was asked to put his hands over his ears to close them off (in rough-and-ready fashion) alternately. The doctor identified the loss of faculty as "reduced hearing", but completed the "disabilities" part of his form "PD A10", and may have derived his overall 12% assessment from the A10 tables. He characterised the disablement as "unable to communicate with people".
11. The tribunal also fell into this trap. It correctly noted that this was not an "industrial deafness" (by which it must have meant prescribed disease) case, and said there could be a further claim in the event of deterioration even though the loss did not reach the 50dB threshold for the prescribed disease; but it said that "the usual calculations" (not further explained) produced only a 12% hearing loss, and we took it from that that it had applied the prescribed disease tables, and only those, rather than the guideline (or any other) method of assessment for an industrial accident. Further, it found the hearing loss to be "work-related" without attempting any apportionment between firearms training and eg motor cycle noise and without applying regulation 11. This is right for the prescribed disease, where all hearing loss (but only measured hearing loss) is assessed, whether work-related or not; but an industrial accident does require at least consideration of an apportionment between different causes of hearing loss, and also of any interaction between disablement due to the industrial accident and disablement due to any other cause (R(I)3/91(T)).
12. We were all agreed that the tribunal's decision had to be set aside, and it was not suggested that I should substitute my own decision. Nor would I feel particularly safe in doing so. A tribunal containing a member with expertise in hearing loss could better carry out the conversational voice test that was not carried out by Dr Khan, and assess the results. The evidence shows that the claimant has a problem with speech discrimination. Vowel sounds tend to be in the lower frequencies, consonants (particularly those mentioned eg at page 108) at the higher. The test speech is likely to contain both, but a record might usefully be kept of what is actually said. It would also be advisable to measure the examining room, to ensure that the 3-metre test is properly carried out if the room is small. The test will clarify the claims that hearing loss is worse where the claimant cannot see the person talking and therefore has no assistance in determining from where the voice is coming.
13. I was urged to direct that the rehearing tribunal should assess hearing loss over the whole spectrum of frequencies covered by the audiograms, not merely at 1, 2 and 3kHz, because of claimant's hearing loss (and therefore more impaired voice discrimination) at higher frequencies. This was fortified by the submission in support of the appeal, which reported (page 61) an Institute of Occupational Health and Safety publication observing that reduced hearing capability can be expected at the frequency of the noises that have caused the losses (here 6kHz), and observations to the same effect by technicians at the claimant's local medical hearing centre. Against this is the argument used by the IIAC in its November 2002 report on PD A10 that 1, 2 and 3kHz are the frequencies cited by the British Association of Otolaryngologists as those predominantly involved in speech discrimination, and thus the most disabling in everyday life. The report spoke of investigating frequencies used in other countries, but rejecting them because of lack of consensus. In assessing degree of disablement, as opposed to degree of hearing loss, the IIAC again considered research in the UK and abroad, including the guidelines for medico-legal practice published in 1992 by the Inter-Society Working Group on Hearing Disability (ISWGHD), but concluded that there was insufficient uniformity to recommend any change in practice. It stressed the desirability of consistency and equity across a wide range of causes of deafness.
14. I notice too that Mr Wilson did a 1,2,3kHz calculation without suggesting that it disadvantaged the claimant.
15. I was invited by Ms Robertson to ask the Secretary of State to extract from the various IIAC reports any material he thought relevant to the (Schedule 6) comparison to be made, including whether there are any special factors applicable only to PD A10. But this would delay matters further, and the Secretary of State's approach emerges rather clearly from his submission on this appeal, which was in substance to keep assessments for deafness, whether produced by disease or accident, as much in line as possible.
16. This is understandable in terms of equity as between claimants all of whom end up with hearing loss. But it is not conclusive. Not only are prescribed diseases governed by legislative provisions requiring set periods of employment in a prescribed occupation and time limits on claiming after that employment ceases (a glance at the chronology in this case suggests that the claimant would not have fulfilled these conditions for an A10 claim), but the method of assessing disablement is prescribed under regulation 34 of and Schedule 3 to the Prescribed Diseases Regulations 1985. Essentially, it is an assessment of pure hearing loss with fixed levels of disablement, and one which can be easily and, within the limits of necessarily subjective pure tone audiogram testing, uniformly applied across the wide range of types of hearing loss comprehended by the prescribed disease scheme.
17. But Schedule 6 says for industrial accidents that "the extent of disablement shall be assessed, by reference to the disabilities incurred by the claimant as a result of the relevant loss of faculty". There are no set levels of disablement. And although it is only a guideline, the conversational voice test is the appropriate starting point, though since it too initially concentrates on hearing loss it can be informed by and cross-checked against the audiograms. If the tribunal is satisfied that higher frequency hearing loss is relevant in a particular case, it can be taken into account. But the regulations nowhere specifically require all frequencies to be considered, and practice in other countries (which the IIAC found to vary) is not persuasive. Assessment will not, as suggested at page 57, involve keeping whatever the A10 tables give and adding on extra for the higher frequencies. Nor will it reflect what the claimant says is a 50% loss at one particular frequency. It will require an overall judgment. Directional problems will be covered by the conversational voice test. The claimant says he does not have tinnitus, simply a "heavy" feeling in his left ear.
18. It must not be forgotten that the comparison under Schedule 6 is simply with another person of the same age and sex, and that individual hobbies and preferences are not to be taken into account. Thus, this claimant's complaints of loss of pleasure in particular kinds of music and in birdsong, and having to have the TV volume high, are relevant only in so far as other men of his age might be able to have, or not to be burdened with, these things. His being a radio ham, as he told the tribunal, would not be relevant.
19. Once the overall hearing loss disablement is established, the tribunal will need to consider whether any offset under regulation 11(3) is attributable to other pre-existing causes of hearing loss and, if disablement from the relevant accident reaches 11%, whether under regulation 11(4), any worsening of it is to be expected from other types of post-dated hearing loss. Since motor cycle and communications equipment noise, although exposure took place in the course of the claimant's employment, have not been the subject of any industrial accident declaration, I cannot agree with Ms Robertson that regulation 11(5) is relevant.
20. There is some question whether the claimant's hearing deteriorated between the 1999 and 2002 audiograms. Mr Timms suggested at page 50 that it did. The claimant did not accept this at the hearing before me, though he is recorded as accepting it before the tribunal. The rehearing tribunal will explore this, and consider to what extent any deterioration is attributable to the firearms practice once the claimant gave this up in 1987.
21. The claimant has objected at various times that documents were missing from the papers. I took steps by interlocutory directions to ensure that those he wanted included were included.
22. The rehearing tribunal will investigate the claim afresh, and reach its own properly explained conclusions. It will not be obliged to disregard the A10 tables, provided it treats them as part of a proper accident assessment. The claimant may or may not find he gets a higher assessment: that will be for the tribunal.
23. I seem in the course of writing this decision to have mislaid Ms Robertson's skeleton argument, though the attachments are on the file. But to save time I have not pursued her for a further copy.

(signed on original) Christine Fellner

Commissioner

25 July 2003