UK Social Security and Child Support Commissioners' Decisions

[2004] UKSSCSC CI_3178_2003 (02 April 2004)

 


1. This appeal, brought by the Secretary of State with my leave, succeeds. The decision of the tribunal made on 5 2 03 was wrong in law, and I set it aside. But there is no point in remitting it to a different tribunal for rehearing, as I am able to make my own decision on the facts as found and to substitute it for the tribunal's under s14(8)(a)(i) of the Social Security Act 1998. It is that the claimant is not entitled to reduced earnings allowance (REA) in relation to his accepted prescribed disease (PD) D9, popularly known as asbestosis and defined as at the date of his claim for disablement benefit as "bilateral diffuse pleural thickening".
2. PD D9 was first prescribed under the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985 on 1 4 85, as bilateral diffuse pleural thickening. This was the PD which the claimant was accepted as suffering from on his claim made on 26 4 95. REA was abolished for prescribed diseases with a date of onset later than 1 10 90 by paragraph 11(1) of Schedule 7 to the Social Security Contributions and Benefits Act 1992 (as modified by regulation 14A of the Prescribed Diseases Regulations), and regulation 12(2) of those Regulations treats references to the date of an industrial accident as references to the date of onset of a prescribed disease.
3. The claimant appealed against a decision which refused him REA because the date of onset of his prescribed disease, as found on his claim for disablement benefit made on 26 4 95, was 1 1 93 (ie after 1 10 90). He had contended for an onset date in 1986, but this was not accepted. The 1 1 93 date of onset was not appealed by him within the time allowed for an appeal. The effect of the Court of Appeal's decision in Secretary of State for Work and Pensions v Whalley [2003] EWCA Civ 166 (a copy of which is in the papers) is that that date of onset cannot thereafter be challenged. The appellant has given me reasons why he did not challenge the date as found (confusion between the date of onset and the date his disablement reached 14%), and asks that I should contact his consultant for evidence of earlier onset. But Whalley prevents me from doing that. It is too late for a challenge.
4. The appellant was represented before the tribunal of 5 2 03, and the representative submitted that the claimant was entitled to REA because the amended paragraph 11(1) excluded only those people whose accidents occurred after 1 10 90, or who suffered from a disease prescribed on or after 10 10 94 or from a disease prescribed before that date but whose prescription was extended after it. The claimant fell into none of those categories. For prescribed diseases, what mattered was the date of prescription, not the date of onset, and PD D9 was prescribed well before 1 10 90.
5. The tribunal accepted this submission. It said in its short form decision that the matter was indeed one of date of prescription, not date of onset. Its full statement merely adopted the representative's submission as its own.
6. The Secretary of State appealed, and has throughout argued that it is the date of onset of the disease that counts, because of regulation 12(2)'s provision that date of onset is to be the equivalent of date of accident.
7. The claimant argues that he did suffer from the disease earlier than 1 10 90. He suffered from it since 1986. But as I have said, the decision made on his disablement benefit claim held that 1 1 93 was the date of onset, and that finding cannot now be upset. I directed that the Secretary of State's latest submission be sent to the claimant for his comments within 14 days (of 10 3 04), but he has not responded.
8. The Secretary of State is correct. Paragraph 11(1) says people cannot have REA for accidents happening on or after 1 10 90. Regulation 12(2) says accident also means prescribed disease and date of accident means date of onset. This claimant's date of onset, which it is now too late to challenge, was later than 1 10 90. He cannot qualify for REA. The tribunal was misled by the representative's submission, which ignored regulation 12(2).
9. The Secretary of State's appeal therefore succeeds. I am afraid this will be a disappointment to the claimant, whose hopes must have been raised by the representative and confirmed by the tribunal. But that is the law.

(signed on original) Christine Fellner

Commissioner

2 April 2004