UK Social Security and Child Support Commissioners' Decisions

 


[2005] UKSSCSC CI_1160_2004 (03 March 2005)

CI/1160/2004

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. The decision of the Disablement Benefit Appeal Tribunal dated 17 November 2003 on Case No. U/42/031/2003/00888 is erroneous in law. I set that decision aside and direct that the claimant's case be heard again by a differently constituted tribunal.
2. The claimant appeals, with my leave and the limited support of the Secretary of State's representative, against the tribunal's decision that the claimant has not at any time since 9 April 1997 suffered from the Prescribed Disease No. D12.
3. The claimant was employed for many years in coalmining. On 9 October 2002 he claimed Disablement Benefit on account of the Prescribed Disease No. D12 which is a prescribed level of bronchitis, or of emphysema or of both. A Medical Adviser of the Benefits Agency examined the claimant and decided that the spirometry test of the claimant's lung function did not indicate that he suffered from either chronic bronchitis or emphysema to the prescribed degree. The forced expiratory volume of air in one second was 2.17 litres which was a drop of only 0.67 litres from the predicted volume. On the basis of the Medical Adviser's report of those findings the Secretary of State's decision maker decided that the claimant does not suffer from the prescribed disease. That decision was confirmed on reconsideration and the claimant appealed.
4. The case put to the tribunal for the claimant was that his reduced lung function fell within the limits prescribed for PDD12. That submission was supported by the evidence of the findings of the doctor who examined him for the purposes of his claim against British Coal and by the opinion of his consultant physician, Dr. A. Dr. A's opinion was that the degree of malfunction of the claimant's lungs due to bronchitis and emphysema was masked by the use of broncho-dilators. When there was no such masking the drop in the claimant's FEV1 was 1.47 litres below the predicted value for the claimant's age and height. Dr. A was of the view that the prescription of the qualifying reduction in lung function in Schedule 1 to the Social Security (Prescribed Diseases) Regulations 1985 discriminates against non-smokers such as the claimant because smokers were much more likely to develop chronic obstructive pulmonary disease with reduced lung function than non-smokers. Consequently for the same amount of occupational dust exposure a smoker was likely to experience a greater fall in lung function and a greater disability. In that way the prescription discriminated against non-smokers. The description also discriminated against short men because a tall man with a drop of 1 litre in his FEV1 against a predicted of 4 litres would experience a 25% reduction in lung capacity whereas a short man with a predicted FEV1 of 2 litres would, with the same 1 litre drop, experience a 50% reduction in lung volumes and would be significantly more disabled. The taller man, therefore, would receive benefit on account of a lower level of disability. In the claimant's case his height was 1.65 metres and a 1 litre fall in FEV1 represented a 31% fall in lung-capacity.
5. The grounds for appealing the tribunal's decision to a Commissioner drafted by the claimant's solicitors are that –

(1) in the statement of the tribunal's reasons for its decision it is said only that the claimant's consultant measured the FEV1 at 1.38 but does not take into consideration that the claimant's predicted FEV1 is 2.77 litres and that, therefore, the consultant had measured a drop of more than 1 litre,

(2) the tribunal had not attached any significance to the fact that the claimant's pre-broncho dilator test showed a drop of over 1 litre as confirmed by his consultant,

(3) the Tribunal did not fully consider and attach significant importance to Dr. A's report,

(4) the tribunal did not fully consider the submissions of the claimant's solicitors, merely summarising the submissions at paragraph 8 of the statement of reasons but not explaining why the arguments submitted had been rejected,

(5) the tribunal's decision is mainly based on the FEV1 test taken at the hearing but the equipment used was clearly defective, the claimant having to attempt to give 4 tests with the result that the readings should not have been used to arrive at a decision.

6. The record of the tribunal's clinical findings is as follows:

"Short, rather obese man. Short of breath on moderate exertion within the Tribunal area. No clubbing. Chest poor expansion. Crackles over both lower lobes which clear on coughing. Occasional wheeze.

RFTs 9 tests performed FVC 3.331 (Pred 3.69) FEV1 1.95 (Pred 2.77) P flow 336 (Pred 503). Drop in FEV O.82L."

7. The tribunal's reasons for dismissing the claimant's appeal are stated thus:

" 1. This appeal relates to [the claimant's] claim for Industrial Injuries Disablement Benefit. [The claimant] had been employed as a miner. He claimed his benefit for PD12 on 09 10 02. Prescribed Disease No. D12 is defined as chronic bronchitis and/or emphysema when there is accompanying evidence of a forced expiratory volume in one second (as defined) ("FEV1") of at least 1 litre below the mean predicted value (statutorily defined) or less than 1 litre.

2. On 21 01 03 [the claimant] was examined by a medical adviser who carried out a test to determine [the claimant's] FEV1. The drop in FEV1 was recorded as 0.67 litre. On the evidence of this test the adviser gave the opinion that [the claimant] was not suffering from PDD12. The decision maker then determined that [the claimant] was not suffering from PDD12. [The claimant's] application for disablement benefit was refused.

3. [The claimant] appealed against this decision. The appeal was originally listed for hearing on 10 10 03 but was adjourned at [the claimant's] request. [The claimant] was asked to produce the full MAP report that had been prepared in connection with his claim against British Coal.

4. [The claimant] attended the hearing of his appeal accompanied by his wife. The medical member of the tribunal hearing the appeal had specialist expertise in respiratory disease.

5. On 17 November the tribunal had considerable medical evidence before it. This included a previous vitalograph test dated 07 04 98 which found a drop in FEV1 of 0.47 litre. The MAP report indicated that a vitalograph test had been administered on the date of the examination (about 26 06 00). This disclosed a pre-inhaler FEV1 drop of 0.97 litre. The report does not however disclose the basis of the prediction.

6. [The claimant] produced a report from Dr. A [The consultant] examined [the claimant] on 03 11 03. In Dr. A's opinion [the claimant] has chronic bronchitis and COPD. In Dr. A's view the detailed lung function test of the MAP examination show that [the claimant] would pass the eligibility test if his pre-bronchial-dilator results were taken. Dr. A makes criticisms of the eligibility criteria for PDD12. Dr. A measured the claimant's FEV1 at 1.38.

7. At the hearing on 17 November [the claimant] told the tribunal that his condition was worsening over time and that he was slightly worse than he had been in January 2003. [The claimant's] lung function was tested. [The claimant's] measured FEV1 was 1.95L compared to a predicted FEV1 of 2.77L – a drop of 0.82L. [The claimant] had used inhalers on the morning of the hearing – at 9 am. [The claimant] was examined at 3.45 PM.

8. [The claimant's] solicitors prepared a submission arguing that [the claimant's] FEV1 reading would fall to the requisite level if he stopped taking his inhalers and also painkillers. It was suggested that [the claimant's] painkillers assisted his lung function as they thinned his blood – although [the consultant] makes no such connection.

The tribunal was not satisfied that the balance of the evidence supported the view that [the claimant] fulfilled the statutory criteria for a diagnosis of PDD12. Whilst satisfied that recent use of inhalers will improve lung function, we would need to be satisfied that the evidence supported the view that as at the date of hearing [the claimant's] measured FEV1 would be at least 1 litre less than the predicted value [using the statutory basis for prediction]. It is not clear what prediction criteria were used for the MAP test [where Mr B's drop pre-inhaler is in any event less than 1 litres] or by Dr. A. Having considered very carefully all of the available evidence we were not persuaded that [the claimant] had made out his case that as at January 2003 he satisfied the statutory criteria for a diagnosis of PDD12. We therefore confirm the decision of the Secretary of State.".

8. The Prescribed Disease PD12 was added to the list of prescribed disease in Schedule 1 to the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985 with effect from 13 September1993 by regulation 6 of the Social Security (Industrial Injuries) (Prescribed Diseases) Amendment (No. 2) Regulations 1993. The disease was specified in the new paragraph D12 of the first column to the Schedule as being chronic bronchitis or emphysema or both where there is accompanying evidence of coal dust retention demonstrated by a specified level of chest radiography and –

" (ii) A forced expiratory volume in one second of at least 1 litre below the mean value predicted in accordance with 'Lung Function: Assessment and Application in Medicine' by J. E. Cotes, 4^th Edition (1979) … for a person of the claimant's age, height and sex, measured from the position of maximum inspiration with the claimant making maximum effort.".

With effect from 9 April 1997 paragraph D12 was amended by regulation 6(5) of the Social Security (Industrial Injuries) (Prescribed Diseases) (Miscellaneous Amendments) Regulations 1997 by the deletion of the reference to evidence of dust retention demonstrated by a chest radiograph. With effect from 10 July 2000 para D12 was amended by a new specification of the spirometric evidence. The new specification of the prescribed disease dropped the reference to Cotes and, insofar as relevant to this appeal, reads –

"D12. Except in the circumstances specified in regulation 2(d) –

(a) chronic bronchitis; or

(b) emphysema; or

(c) both,

where there is accompanying evidence of a forced expiratory volume in one second (measured from the position of maximum inspiration with the claimant making maximum effort) which is –

(i) at least 1 litre below the appropriate mean value predicted obtained from the following prediction formulae which give the mean values predicted in litres –

For a man, where the measurement is made without back-extrapolation, (3.62 x  Height in metres) – (0.031 x Age in years) – 1.41; or, where the measurement is made with back-extrapolation, (3.71 x Height in metres) – (0.032 x Age in years) – 1.44;

For a woman, ……….; or

(ii) less than 1 litre.".

Regulation 7(1) of the same Amending Regulations provided that the new specification of the prescribed disease would not apply to claims made within the three months following 10 July 2000 if the onset of the disease was prior to that date.

9. When I granted leave to appeal I indicated that the two points on which I required a submission from the Secretary of State were –

(i) had the tribunal adequately explained how it allowed for the effect of broncho-dilators on the spirometry and

(ii) did Dr. A's criticisms of the PDD12 prescription establish that the prescription is irrational?

10. In a written submission of 28 September 2004 the Secretary of State's representative, having taken advice from the Corporate Medical Group in the Department for Work and Pensions, supports the claimant's appeal. He argues, firstly, that the tribunal had not adequately explained how it allowed for the effect of bronco-dilators on the claimant's spirometry. The use of the FEV1 test to specify the level of chronic bronchitis and emphysema which constitutes the Prescribed Disease D12 is on the advice of the Industrial Injuries Advisory Council which recommended that test because it produces consistent results when repeated several times and tends to be independent of expiratory effort once a moderate effort has been made by the claimant. The FEV1 test, when it is being used to measure the effects of chronic bronchitis and emphysema, is not affected by the use of broncho-dilators. Air flow limitation caused by chronic bronchitis and emphysema, according to the Council's advice, is predominantly irreversible, unlike that resulting from asthma, and the use of broncho-dilators by somebody suffering from bronchitis and emphysema will not affect the FEV1 readings. Therefore, argues the representative, at face value the Council's advice would be that the tribunal had no need to consider the possible effect of the broncho-dilators in this claimant's case. However, there was a clear difference of opinion between Dr. A and the consultant who examined the claimant for the purposes of his claim against British Coal. The former thought that the claimant did not have asthma whereas the latter thought that the claimant did. If the tribunal agreed that the claimant did not have asthma then it did not need to consider the question of the use of broncho-dilators. On the other hand if the tribunal thought that the claimant did have asthma then it should have used FEV1 results obtained after bronco-dilators had been used and had eliminated the effects of the asthma.
11. The submission argues that, contrary to the claimant's grounds of appeal, the tribunal's decision was not perverse in the sense that the tribunal had arrived at a decision at which, given the facts, it would not have arrived if it had acted reasonably and applied the law correctly. It would have been reasonable for the tribunal to decide that asthma was not present and that it could ignore the use of a broncho-dilator. However, in the tribunal's reasons for its decision it is said that in Dr. A's opinion the claimant has chronic bronchitis and chronic obstructive pulmonary disease. That is not, in fact, what Dr. A did say. It may be that the tribunal thought that it was not necessary to go into the matter further because the spirometric criterion had not been met but, in the circumstances of the case, the tribunal had selected a position on the diagnosis question and the wording of its reasoning could imply that it had overlooked or ignored Dr. A's opinion that asthma was present as well as emphysema and bronchitis. The Secretary of State's representative submits that the case should be remitted to a new tribunal as it involves the consideration of complicated clinical questions.
12. The Secretary of State's representative goes on to argue that the consultant's criticism of the specification of PDD12 in paragraph D12 of Schedule 1 to the Regulations is mistaken. Section 108(2) of the Social Security Contributions and Benefits Act 1992 provides for the prescription of a disease if the Secretary of State is satisfied that those in the relevant occupation are at a risk of contracting the disease not common to all persons and if the disease is such that in the absence of special circumstances the attribution of particular cases to the nature of the employment can be established or presumed with reasonable certainty. In relation to PDD12 the Secretary of State has always followed the advice of the Industrial Injuries Advisory Council which has a distinguished membership of doctors and epidemiologists and consults widely before reaching conclusions. The Secretary of State cannot be accused of irrationality in following the Council's advice. The representative also rejects Dr. A's view that the Council's opinion as to the significance of smoking is irrational. The evidence is that the incidence of chronic bronchitis and emphysema is at least doubled in both smokers and non-smokers where there is coal dust retention and the fact that smokers might be compensated for a disease which they would have suffered in any case is irrelevant to the claimant. All successful claimants are compensated for the disease from which they suffer. The consultant's criticism of the use of reference values adds nothing to the submissions which were made to the Council in 1995 and 1996 and it was not, therefore, irrational for the Secretary of State to make regulations in accordance with the Council's recommendations.
13. I heard the claimant's appeal on 13 January 2005. The claimant attended the hearing. He was not represented. The Secretary of State was represented by Mr J. Heath of the Office of the Solicitor to the Secretary of State for Work and Pensions. I am grateful to both Mr Brown and Mr Heath for their submissions.
14. The claimant said that he had been employed by British Coal for 32 years and 8 months. He finished his faceman's training on 15 July 1961. He produced several folders. The first was an employment record showing that there had never been any more than a few days between his finishing work at one pit and starting at another. He had been the highest paid worker in his pit and the folder included sample payslips and a certificate of the many specialist duties which he was qualified to perform. He said that he finished work on the grounds of ill-health in 1990, suffering from breathing and back problems. The second folder produced contained details of the claimant's hospital appointments. When he received the tribunal decision under appeal he thought that there must be something other than PDD12 wrong with his chest so in January 2004 he went to see his doctor who sent him for tests. He saw Dr. A for the first time on 2 June 2004 after a CT scan on 5 October 2004. Dr. A told the claimant that he had bronchitis and emphysema which put the claimant's mind at rest. Dr. A had now written to the claimant, on 10 January 2005, to say that he is satisfied that there is no asthma and that the breathing problems are due entirely to bronchitis and emphysema. The folder includes examples of the prescriptions issued to the claimant.
15. The third folder produced contains copies of the claimant's correspondence with his Member of Parliament and the Member's correspondence with the relevant Minister of State. The claimant drew my attention to his note in that folder of a phone call from the claims administrator of his trade union in which it was said that the union would be reluctant to take up the claimant's application for Disablement Benefit because approximately 95% of miners were smokers. The claimant said that he had rejected an offer of £1,650 from the Department of Trade and Industry for a quick settlement of his claim against British Coal. He opted instead for the claims procedure involving a full medical investigation. The result of that was an interim payment of £8,206.43 and a total settlement of £80,000. That process had taken a year. The Benefits Agency examination for the purposes of the Disablement Benefit claim took 4 minutes.
16. The fourth folder produced by the claimant contained Dr. A's reports. Dr. A at first thought that the claimant might have asthma but he did not think that now and the submission for the Secretary of State on that point was now irrelevant. Dr. A's criticism of the prescription of PDD12 should be noted. The information from the claimant's general practitioner about smoking is misleading. Miners would always admit to smoking but he had never smoked. His wife had never smoked. He had never been a drinker and therefore he had not been exposed to passive smoking although he now goes into public houses for meals because they are better than they used to be.
17. Mr Heath said that he had to start with a general point about the difference between the regulatory scheme of prescribed diseases for the purposes of determining entitlement to Disablement Benefit and a claim at civil law based on the negligence of others. In the case of Griffiths and Others v. British Coal the court found British Coal liable to employees suffering from the effects of the retention of coal dust by reason of the employer's negligence. The Department of Trade and Industry had taken over the employer's liability to the affected employees for damages. A claims handling agreement had been set up under which in some cases the employees affected were offered an abbreviated settlement in order to expedite payment. The claimant had opted for a full investigation of his case and as a result was paid £80,000 in settlement. By contrast the statutory system was based on a scheme enacted by Parliament. There was no need for there to be fault on the part of the employer to establish entitlement where the claimant was suffering from one of the diseases listed in Schedule 1 to the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1987. There was a narrow prescription of the diseases arrived at by a process involving consideration by the Industrial Injuries Advisory Council. The council made recommendations to the Secretary of State which recommendations the Secretary of State usually accepted. Prescribed Disease D12 was added to the list in 1993. The prescription was a precise formula. The outcome of an application under the statutory scheme could be quite different from the result of a civil claim.
18. Mr Heath referred to the three versions of the specification of what constitutes PDD12 in paragraph D12 of the Schedule to the Prescribed Diseases Regulations. The third version, enacted on 10 July 2000, changed the wording of the spirometry test. It dropped the reference to the standard work on lung function for the predicted rate of a claimant's forced expiratory volume in one second and substituted therefor a specific formula. It was the third form of the prescription which applied in the claimant's case but the decision under appeal to the tribunal purported to have applied the second version which, of course, was no longer law. The tribunal had not detected this mistake and had confirmed the Secretary of State's decision. For that reason alone the tribunal's decision is erroneous in law and has to be set aside.
19. There was, said Mr Heath, a second reason for which the tribunal's decision has to be set aside. He referred to the written submission for the Secretary of State and said it was based largely on advice. He referred also to the grounds of appeal stated for the claimant and the two questions which I raised when I granted leave to appeal. The submission concentrated on the two questions. He agreed with the submission's point that bronch-dilators did not affect the FEV1 test and that the tribunal did not, therefore, need to consider it. The Prescribed Diseases Regulations and the schedules thereto reflected the advice given to the Secretary of State by the Industrial Injuries Advisory Council. Doctors carrying out the tests knew what they were doing and it was not irrational to accept their findings. In this case the claimant had said that the equipment used did not work properly and it took four attempts before it would function. Mr Heath said that there was no need to go into that because the case needed to be remitted for rehearing for other reasons.
20. The consultant who examined the claimant for the purposes of his civil claim and Dr. A had a difference of opinion as to whether or not the claimant suffered from asthma but that difference had now been resolved because Dr. A now clearly accepted that asthma was not present. That circumstance did not put the tribunal in error. Dr. A's letter stating that he is satisfied that there is no asthma would not be affected by section 12(8) inasmuch as it would be evidence relating to the claimant's medical condition at the date of the Secretary of State's decision. If, on the other hand, the letter established that there had been a change of circumstances since the date of the relevant decision it could be used to establish that there were grounds for a supersession.
21. Mr Heath agreed with the written submission for the Secretary of State that although the tribunal's decision was reasonable its attribution to Dr. A of the opinion that the claimant did not suffer from asthma was, on the evidence before the tribunal, incorrect. The claimant's consultant had clearly said that he credited the presence of reversible asthma. The tribunal had not gone into great detail about what Dr. A had said but the tribunal had to take a position and could be said to have given inadequate consideration to Dr. A's opinion. For that reason the answer to the broncho-dilator point raised in the Commissioner's direction to the Secretary of State's representative was that the case should be remitted for rehearing.
22. Mr Heath agreed with the written submission that the prescription of PDD12 in the schedule to the Prescribed Diseases Regulations was not irrational. It was based on the advice of the Industrial Injuries Advisory Council which was a respected body. The Council had considered the effects of smoking on the incidence of bronchitis and emphysema and it had found that both smokers and non-smokers were twice as likely to develop bronchitis or emphysema if they were exposed to coal dust in their working environment. Mr Heath agreed also that Dr. A's criticisms of the formula for predicting the standard level of lung function with which a claimant's lung function should be compared added nothing to the evidence taken into account by the Industrial Injuries Advisory Council when it considered the formula.
23. I accept that the tribunal's decision has to be set aside for the two reasons given in the Secretary of State's representative's written submission and by Mr Heath. The reference to the wrong prescription probably had no practical effect on the tribunal's answer to the diagnosis question in issue because I suspect, although I have not obtained a copy of Cotes to check that I am right, that the formula set out there is the same as that set out in the current version of paragraph D12 of Schedule 1. However, the wrong reference does mean that on the face of it the tribunal's decision is based on a false premise as to the law in force at the date of the Secretary of State's decision. There is also the practical consideration that according to what the claimant said to me in his submissions he was prompted to go searching for a copy of Cotes in order to understand fully the reasons for the dismissal of his appeal. The mistake is, therefore, not a pure technicality, and the case has to be remitted to a new tribunal for rehearing.
24. A more serious and more difficult matter is the question of whether or not the tribunal has explained sufficiently what it made of Dr. A's opinion that the claimant had asthma and his findings as to the effect of broncho-dilators on the spirometry. I think it has to be accepted that the tribunal has not given a sufficient explanation of whether or not it thought that the claimant was suffering from asthma and, if it thought not, why it rejected Dr. A's opinion that the claimant did. In CI/126/2002 I said that as PDD12 is diagnosed by reference to the degree of impairment of the air flow any effect of medication on the spirometry had to be taken into account because what is relevant is the unassisted lung function. As I understand the medical opinion on which the submission for the Secretary of State is based, if the claimant does not have asthma the spirometry will not be affected by the previous use of bronco-dilators because although the reduction in air flow caused by asthma can be relieved by the use of broncho-dilators that caused by emphysema and bronchitis is "predominantly irreversible." I have no doubt that the advice given to the Secretary of State's representative reflects the current thinking of those with relevant expertise and that a tribunal investigating a D12 diagnosis question will normally disregard the prior use of broncho-dilators where there is no asthma and, as the Secretary of State's submission suggests it should, expect the broncho-dilator to be used in cases where asthma is present in order to eliminate the reduction in airflow caused by that. However, I think that the significance of the use or non-use of broncho-dilators in any particular case is a matter for the tribunal itself and that where there are suggestions that asthma or the use of broncho-dilators or both are factors in the claimant's case the tribunal will need to explain what it thinks is the significance, if any , of any of those factors.
25. Dr. A's criticism of the PDD12 prescription was that it is discriminatory against short men because the impairment of lung function represented by a 1 litre reduction in air flow is proportionately more disabling in its effect on a person who has a low predicted lung function than on somebody who has a high prediction. He considered also that the prescription is discriminatory against non-smokers. "Discrimination" is not a word which I use readily. United Kingdom legislation, European legislation and the European Convention on Human Rights as incorporated in the Laws of England and Scotland by the Human Rights Act 1998 contain prohibitions on discrimination on various specified grounds such as race, sex or nationality. Both deliberate and inadvertent discrimination are legislated against and the word "discrimination" has connotations of opprobrium to a degree which varies with the form of the discrimination. The possibility that a legislative provision or an administrative or other action which does not offend against any of the anti-discriminatory legislation is either not apt to apply to everyone to whom it arguably should apply or might benefit some who arguably should not be benefited does not, to my mind, attract to it any such opprobrium. It is for that reason that when I directed a submission from the Secretary of State's representative on Dr. A's criticism of the D12 prescription I asked if the prescription was irrational. The prescription is irrational if it is so far out of line with accepted medical opinion that it is incapable of producing any sensible result or achieving the purpose for which the Secretary of State has been empowered to make regulations. If paragraph D12 had been irrational in that way regulation 4 of the Prescribed Diseases Regulations, to the extent that it enacted paragraph D12, would have been ultra vires of the Secretary of State's regulation making power.
26. However, I agree with the Secretary of State's representative and Mr Heath that paragraph D12 of Schedule 1 to the Regulations is not irrational. On the matter of its application to smokers, as Mr Heath said, the fact that smokers who suffer from coal dust retention might be compensated for having contracted a coal dust related disease which they might have contracted in any case does not exclude any non-smoker with coal dust related emphysema or bronchitis from compensation under the legislation. As regards the use of the 1 litre drop in lung function as the prescribed decisive indicator of PD D12, Dr. A's opinion that it can result in the disease not being diagnosed in short men who have a disabling reduction in lung function due to the retention of coal dust has to be respected. It is an opinion which may well be shared by other chest physicians: but the D12 prescription is based on the equally respectable opinions of the members of the Industrial Injuries Advisory Council and the Secretary of State cannot be accused of irrationality in relying upon their opinion to devise the prescription.
27. For the foregoing reasons the claimant's appeal succeeds, inasmuch as I have set the tribunal's decision aside, and my decision and direction are in paragraph 1 above.

(Signed) R J C Angus

Commissioner

(Date) 3 March 2005