Secretary of State for Work and Pensions v. Whalley  UKSSCSC CI_6027_1999 (14 February 2003)
R (I) 2 /03
(Secretary of State for Work and Pensions v. Whalley  EWCA Civ 166)
CA (Schiemann, Mummery and Dyson LJJ) CI/6027/99
Date of onset – whether determination for disablement benefit binding on subsequent claim for disablement benefit or reduced earnings allowance
In January 1991, the claimant made a claim for industrial injuries disablement benefit in respect of Vibration White Finger (PD A11). On 6 September 1991, an adjudicating medical authority decided that he was not suffering from PD A11 and had not so suffered since 8 August 1985. The claimant did not appeal. In October 1995 the claimant made a fresh claim for disablement benefit in respect of the same prescribed disease and, on appeal, a medical appeal tribunal on 10 March 1998 found that the claimant was suffering from PD A11 and had so suffered since 1 January 1986 (the date of onset). There was a purported correction of the tribunal decision to change the date of onset to 7 September 1991. The claimant made a late appeal to the Commissioner;
The claimant had made a separate claim for reduced earnings allowance on the basis of loss of earnings as a result of suffering from PD A11 from 1 October 1986. An adjudication officer rejected this claim and the claimant's appeal was adjourned pending a final decision on his disablement benefit appeals;
The Commissioner set out the test to be applied in determining the date of onset in PD A11 cases. It was agreed before him that the "correction" of the medical appeal tribunal decision was not permissible and that the decision should be set aside and remitted to a new appeal tribunal. The parties did not agree about the terms of the remittal. The Commissioner held that where a claim for disablement benefit in respect of a prescribed disease had been refused, a decision maker deciding a later claim for the same benefit could not find a date of onset prior to the date of refusal of the first claim. The same applied to two claims for reduced allowance. However, on a later claim for reduced earnings allowance, a decision maker was required after 5 July 1999 to determine the date of onset as a question of fact and the determination on the claim for disablement benefit that a claimant did not have a prescribed disease was not binding on the decision maker deciding the reduced earnings allowance claim.
The Secretary of State appealed.
Held, allowing the appeal, that:
- a decision on date of onset is final and binds any subsequent decision maker dealing with a claim for disablement benefit or reduced earnings allowance;
- it is not open to a decision maker or tribunal to find that a claimant began to suffer from a loss of faculty as a result of a prescribed disease during a period in respect of which it has already been decided that he did not suffer from the PD in question;
- the decision of the adjudicating medical authority dated 6 September 1991 on the first claim for disablement benefit was final and binding both for the second claim for disablement benefit and the claim for reduced earnings allowance. Accordingly the date of onset of PD A11 could not be determined to be any earlier than 6 September 1991 and the claimant was not entitled to reduced earnings allowance;
- (obiter) a claim for reduced earnings allowance cannot be made without a pre existing claim for disablement benefit and an assessment of at least 1%.
DECISION OF THE COURT OF APPEAL
Mr. David Forsdick (instructed by the Department for Work and Pensions) for the Appellant.
Mr. Duran Seddon (instructed by Browell Smith and Co. Solicitors) for the Respondent.
LORD JUSTICE SCHIEMANN :
(1) disablement benefit ("DB") – entitlement to which is determined in accordance with sections 103 to 105 of the SSCBA 1992; and
(2) reduced earnings allowance ("REA") – entitlement to which is determined in accordance with Part IV of schedule 7 of the SSCBA 1992.
The legislative history of these two benefits
The history of the Disablement Benefit Claims
The history of the Reduced Earnings Allowance claim
The decision of the Medical Appeal Tribunal
The decision of the Social Security Commissioner
i) that where there was a refusal of a claim for DB on the grounds that the Claimant did not have PD A11 at the date of the decision, a later decision maker, faced with a new claim for that benefit, can not specify a date of onset of that disease which is prior to the date of refusal of the first claim;
ii) that the same applies where there are two claims for REA;
iii) but that a previous determination on a claim for DB that a claimant does not have PD A11 is to be treated as a question of fact by a decision maker deciding a later claim for REA and is not therefore binding on that later authority either under s.60 of the SSAA 1992 or under the later legislation;
iv) that a claimant was entitled to claim REA without even claiming DB.
The position of this court
Disablement Benefit : Substantive criteria for establishing eligibility
i) a claim was made: s.1 of the SSAA 1992;
ii) he was in a prescribed occupation under the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985 ("the 1985 Regulations");
iii) he suffered from and was diagnosed as suffering from the PD;
iv) the PD was a result of the prescribed employment;
v) the PD resulted in a loss of faculty;
vi) the loss of faculty resulted in disablement;
vii) the extent of that disablement (assessed in accordance with schedule 6 of the SSCBA 1992 – see s.103(5) ) is not less than 14%.
" … the period to be taken into account by an assessment for the purposes of s.103 above … of the extent of a claimant's disablement shall be the period … during which the claimant has suffered and may be expected to continue to suffer from the relevant loss of faculty."
"An assessment for the purposes of section 103 above … shall–
(a) state the degree of disablement in the form of a percentage;
(b) specify the period taken into account by the assessment; and
(c) where that period is limited by reference to a definite date, specify whether the assessment is provisional or final;
but the percentage and the period shall not be specified more particularly than is necessary for the purposes of determining in accordance with section 103 above and Parts … IV of schedule 7 to this Act the claimant's rights as to disablement pension … and reduced earnings allowance (whether or not a claim has been made)."
Reduced Earnings Allowance : Substantive criteria for establishing eligibility
"(1) Subject to the provisions of this paragraph, an employed earner shall be entitled to [REA] if:
(a) he is entitled to a disablement pension or would be so entitled if that pension were payable where disablement is assessed at not less than 1 per cent; and
(b) as a result of the relevant loss of faculty, he is either–
(i) incapable, and likely to remain permanently incapable, of following his regular occupation; and
(ii) incapable of following employment of an equivalent standard which is suitable in his case …
but a person shall not be entitled to [REA] to the extent that the relevant loss of faculty results from an accident happening on or after 1st October 1990 …"
Section 109(1)(b) makes this provision applicable to PDs as well as accidents.
The date of onset
"If on a claim for benefit under Chapter V of Part II of the Act in respect of a prescribed disease a person is found to be or to have been suffering from the disease … the disease shall for the purposes of such claim be treated as having developed on a date (hereafter in these regulations referred to as "the date of onset") determined in accordance with the provisions of the next two following regulations".
"(1) For the purposes of the first claim in respect of a prescribed disease suffered by a person, the date of onset shall be determined in accordance with the following provisions of this regulation, and … that date shall be treated as the date of onset for the purposes of any subsequent claim in respect of the same disease suffered by the same person …
(2) Where the claim for the purposes of which the date of onset is to be determined is–
(b) a claim for disablement benefit… the date of onset shall be the day on which the claimant first suffered from the relevant loss of faculty …".
The relationship between entitlement to DB and entitlement to REA
i) the claimant suffering from a PD – a diagnosis question;
ii) the PD resulting in a loss of faculty – a disablement question;
iii) an assessment of the degree of disablement resulting from the loss of faculty – another disablement question; and
iv) the period to be taken into account being determined: that involves ascertaining the date of onset of the disease.
(1) Subject to the provisions of this Part of this Act, the decision of any claim or question in accordance with the foregoing provisions of this Part shall be final; …
(2) Subsection (1) above shall not make any finding of fact or other determination embodied in or necessary to a decision, or on which it is based, conclusive for the purpose of any further decision.
(1) a claim being made: s.1 Social Security Administration Act 1992 ("the SSAA 1992");
(2) the claimant being in a prescribed occupation under the 1985 Regulations;
(3) the claimant suffering from and being diagnosed as suffering from the PD;
(4) the PD being as a result of the prescribed employment;
(5) the PD results in a loss of faculty; and
(6) that loss of faculty results in disablement.
Order: Appeal allowed; cross-appeal dismissed; no order as to costs, save a detailed Community Legal Service Assessment of the respondent's costs.
(Order does not form part of the approved judgment)