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[2004] UKSSCSC CI_1069_2004 (26 August 2004)

CI/1069/2004

DECISION OF THE SOCIAL SECURITY COMMISSIONER

I allow the claimant's appeal. I set aside the decision of the Derby appeal tribunal dated 10 December 2003 and I refer the case to a differently constituted appeal tribunal for determination.

REASONS

The claimant suffered an industrial accident on 28 August 1991. She claimed disablement benefit and, on 2 April 1998, a medical appeal tribunal found that she had impaired neck, shoulder, arm and foot movements and assessed disablement at 14 per cent. from 11 December 1991 to 30 June 1996 and at 14 per cent. after offsetting 6 per cent. for cervical spondylosis from 1 July 1996 to 10 December 2000. That was a final assessment. In the decision notice, the chairman wrote:

"We assess the loss of faculty arising from the accident at 14% throughout. However, increasingly the constitutional changes due to cervical spondylosis will predominate so that by about 10.12.2000 the consequences of the accident should be entirely mitigated. The loss of disability due to her right foot is assessed at less than 1%."

It is to be noted that the gross assessment increased to 20%, which suggests that the tribunal accepted that the result of the spondylosis was that the claimant had become more disabled than she had been previously. It is easy to understand why the tribunal considered that the spondylosis would become the predominant cause of disability but, in the absence of any full statement of reasons, it is unclear why the tribunal thought that the effects of the relevant accident would cease to add to the total amount of disablement.

On 4 December 2000, the claimant applied for "reconsideration" of that decision. On 5 January 2001, the claimant was told that disablement had been assessed at 8 per cent. from 11 December 2000 for life. This was based upon the opinion of two medical assessors, Dr Sarda and Dr Cryan, who attributed 5 per cent. to loss of upper limb function and 3 per cent. to the disablement from the foot injury. The claimant appealed. On 5 October 2001, an appeal tribunal assessed disablement at 22 per cent. from 4 December 2000 to 10 December 2000 and 8 per cent. from 11 December 2000 to 30 December 2004 on the basis that the claimant had impaired function of her right foot assessed at 8 per cent. In effect, they added that to the assessment made in 1998 and made the assessment effective from the date of the claimant's application for "reconsideration". The claimant appealed again and, on 25 October 2002, Mr Commissioner Jacobs set the tribunal's decision aside on the ground that the tribunal's reasoning was "certainly unclear and probably confused" (CI/2178/02). He referred the case to a differently constituted appeal tribunal who, on 3 December 2002 took the view that no proper decision had been made on the "supersession application" of 4 December 2002 and that they could not cure the defect in the decision that had been issued on 5 January 2001.

So, after two years, the claimant's case was back at square one. On 18 December 2002, the Secretary of State had another go at making a decision. Astonishingly, in view of the history, this again failed to refer to supersession or to the Secretary of State as decision-maker. Disablement was again assessed at 8 per cent. from 11 December 2000 for life, in the light of the report of Dr Sarda and Dr Cryan. Again, the claimant appealed. There is no explanation for the delay of a year between the claimant submitting her appeal in December 2002 and the hearing before the tribunal on December 2003 but it appears that a certain amount of confusion may have been sown by observations submitted by the Secretary of State on 23 January 2003, overlooking the decisions of 3 December 2002 and 18 December 2002 and suggesting that the appeal before the tribunal was that remitted by the Commissioner "on 13 June 2002" (which was actually the date a Commissioner granted leave to appeal rather than the date of Mr Commissioner Jacobs' decision). In any event, on 10 December 2003, the case came before a tribunal who dismissed the appeal. They relied heavily on the report of Dr Sarda and Dr Cryan on the ground that "it was the appellant's condition at that time that was in question" and that "[t]he examination appears to have been thorough and detailed". They also took account of the prognosis suggested by the tribunal sitting in 1998. The claimant now appeals with my leave and the support of the Secretary of State.

It is as well to sort out the procedural issues first. The claimant's application of 4 December 2000 was made just before the end of the current assessment of disablement and the period of her entitlement to benefit. Therefore, it plainly had to be treated as an application for supersession (or, in theory, revision) of the decision of the medical appeal tribunal dated 2 April 1998, rather than a new claim. It was held in CI/1800/01 that a decision of a medical appeal tribunal may be superseded as though it were a decision of the Secretary of State and, following R(I) 5/02, that a final assessment for a fixed period, pre-dating the repeal by the Social Security Act 1998 of the Social Security Administration Act 1992, amounts to a decision that the claimant has no loss of faculty after the end of the fixed period, having continuing effect. The claimant is, as I understand it, content to accept that any supersession would not result in an assessment greater than 24 per cent. in respect of any period before 11 December 2000 and so, for practical purposes, the case is concerned only with the assessment, and therefore her possible entitlement to benefit, from that date. If, from that date, the claimant was suffering from disablement due to a loss of faculty caused by the relevant accident, there are grounds for supervision on the ground of change of circumstances, even if there has not actually been a change of circumstances (see R(IB) 2/04 at paragraphs 146 and 152(d)). The Secretary of State has not challenged the decision of the appeal tribunal dated 3 December 2002 to the effect that the decision issued on 5 January 2001 was not valid. Therefore, the decision under appeal to the tribunal was that made on 18 December 2002 and section 12(8)(b) of the Social Security Act 1998 did not preclude the tribunal from taking account of any changes of circumstances occurring before that date.

I turn then to the three grounds of appeal, the first two of which are supported by the Secretary of State. Firstly, it is submitted that the tribunal erred in relying on the report of Dr Sarda and Dr Cryan without also referring to the clinical findings of the medically qualified member of the medical appeal tribunal who sat on 5 October 2001 and who had made different findings from Dr Sarda and Dr Cryan. I agree. The decision of the medical appeal tribunal had been set aside on a point of law that did not necessarily invalidate the findings, although plainly they were not binding.

The second ground of appeal is that the tribunal erred in neither examining the claimant nor explaining why they were not doing so. Again, I accept that the tribunal erred. There are many cases where it is obvious why no examination is being carried out, but this is not such a case. Moreover, it is at least possible that the claimant's representative is correct in submitting that no examination was carried out in this case because so long had elapsed since the date of the claimant's application for supersession. If that is so (and the submission is supported by the tribunal's reference to Dr Sarda and Dr Cryan having examined the claimant near "the time in question" although it is fair to point out that the tribunal understood the true history of the case despite the Secretary of State's unhelpful observations), the tribunal further erred because, as I have indicated above, they were required to have regard to any change of circumstances that had occurred up to 18 December 2002, which may have been a year before they were hearing the appeal but was two years after the examination carried out by Dr Sarda and Dr Cryan.

The third ground of appeal is that the tribunal erred in failing to address a submission that the claimant's spondylosis was, on the balance of probabilities, attributable to the relevant accident because her identical twin did not suffer from the condition. It would no doubt have been better if the tribunal had commented on that submission, but a tribunal is not obliged to refer to every submission made to them. It is a matter of judgment whether any particular submission is a principal submission and the tribunal may have taken the view that this submission was so obviously unsound or unsupported by evidence that it did not require a comment. However, the tribunal to whom I now refer this case should note that the claimant still relies upon it.

Plainly, as both parties submit, this case must be heard again by a tribunal. I hope that this time a satisfactory decision will be made. I draw the tribunal's attention to regulation 11 of the Social Security (General Benefit) Regulations 1982. I never cease to be amazed by the failure of most tribunals to refer to that provision in cases where they find there to be more than one cause of disablement. Regulation 11(3) poses the question: how much more disabled (if at all) was the claimant than she would have been had the relevant accident not occurred ? Answering that question clearly will be the key task of the tribunal.

(Signed) MARK ROWLAND

Commissioner

26 August 2004