UK Social Security and Child Support Commissioners' Decisions

 


[2006] UKSSCSC CI_954_2006 (19 September 2006)

CI/954/2006

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. I allow the Secretary of State's appeal, but only to a limited extent. I set aside the decision of the Liverpool appeal tribunal dated 19 August 2005 and I substitute my own decision. The award of disablement pension to the claimant dated 12 April 2001 is superseded with effect from 10 August 2003, from which date the claimant is entitled to disablement pension based on the aggregation of the assessment of disablement in respect of the industrial accident he suffered on 7 January 2000 with the assessments made in respect of prescribed disease D4 and in respect of industrial accidents he suffered on 10 November 1986 and 18 August 1997. Benefit paid in consequence of the awards of 12 April 2001 and 16 November 2004 is to be treated as paid on account of arrears due for the same periods under my decision.

REASONS

The facts

2. Some years ago, the claimant was assessed as 7% disabled from 16 April 1986 for life in respect of prescribed disease D4. In, or shortly after, 1997, the claimant was also assessed as 14% disabled from 6 April 1997 for life in respect of an industrial accident he had suffered on 10 November 1986 in which he appears badly to have injured an arm. It is immaterial whether or not there had been previous assessments in respect of that accident. Neither of those two life assessments is in issue in the present proceedings but they represent an important part of the background. The two assessments were aggregated and produced a total assessment of disablement of 21%, on the basis of which a disablement pension was awarded to the claimant.
3. On 18 August 1997, the claimant suffered a second industrial accident in which he injured his back. The injury was minor and, although he reported it to his employer, he made no attempt to claim further benefit in respect of it at that time. However, on 7 January 2000 (references to 8 January in the papers are errors), the claimant suffered a third industrial accident. This further injured his back. The tribunal found as a fact that the claimant's wife wrote to the Department of Social Security, as it then still was, in February or March 2000 to inform it that the claimant's back condition was much worse and that he wished to claim benefit. The Department has no record of any such letter and the claimant and his wife did not keep a copy. In any event, the claimant received a "claim form" for disablement benefit. Among the questions on the form was one asking "What was the date of the accident?", to which the claimant replied "18/8/97". He made no reference to the accident that had occurred on 7 January 2000. The completed form was received by the Department on 6 April 2000.
4. On 3 May 2000, the Secretary of State accepted that the claimant had suffered an industrial accident on 18 August 1997 and the claimant was informed on 11 May 2000 that a declaration to that effect had been made. He was examined in connection with his "claim" on 20 June 2000. He told the medical adviser that he had suffered accidents in both 1997 and in 2000 and he described the second accident in terms that at least suggested that it had occurred while he was in the course of his employment. However, the medical adviser had been asked to give advice only in connection with the earlier of those two accidents. He advised that the claimant had impaired lumber spine function for which the earlier accident was part of the cause, that disablement should be assessed at 3% from 30 November 1997 to 29 November 2000 in respect of that accident and that that should be a final assessment. He also recorded that the injury suffered in 2000 was another effective cause of the claimant's disablement. The Secretary of State adopted the advice but decided that no further benefit was payable. He also took no action in respect of the information about the injury suffered in 2000. On 29 June 2000, the claimant was informed of the outcome but he would not at that stage have received a copy of the medical advice and the form he did receive made no mention at all of the 2000 accident, although it did say that neither prescribed disease D4 nor the injury to his arm was considered relevant. It was explained that no further benefit was payable because, when the 3% was aggregated with the previous life assessments, the total disablement was 24% which fell to be rounded down to 20% just as the earlier aggregate of 21% had been.
5. The claimant then appealed against the assessment of disablement. He again did not mention the 2000 accident. However, the submission to the tribunal did. That submission is a curious document, presumably written with the assistance – if that is the right word – of a computer because it referred to the two original life assessments but also stated that "[t]here are no existing assessments in this case" and that the reason that no benefit was payable was because the relevant assessment was less than 14%. In the final paragraph, it was noted that the claimant was also suffering disablement from an injury to his lower back in January 2000 but the submission said that disablement from that condition could not be included in the assessment. The tribunal sat on 30 March 2001 and allowed the claimant's appeal against the assessment of disablement. It assessed disablement at 10% from 30 November 1997 to 29 November 2002 and 5% from 30 November 2002 to 29 November 2007. That was a final assessment. The tribunal chairman was not asked to prepare a statement of reasons so what, if anything, the tribunal thought about the accident suffered in 2000 is not recorded.
6. In consequence of that decision, the Secretary of State made a further decision, apparently on 12 April 2001 but only notified to the claimant on 17 May 2001, awarding additional benefit from 6 January 2000 (on the basis that the aggregated assessments of 31% to 29 November 2002 and 26% thereafter both fell to be rounded to 30%) but refusing to award any further benefit in respect of the period from 30 November 1997 to 5 January 2000 because that period fell more than 3 months before 6 April 2000, when the "claim" had been received. The claimant appealed against that refusal but the appeal was dismissed on 8 April 2002.
7. On 10 August 2003, the claimant completed a form on which he applied for supersession of the decision of the tribunal dated 30 March 2001 on the ground that his condition had worsened on 11 November 2002. The "attached" letter bears a date stamp of 15 September but was plainly written before a medical appointment on 26 August to which reference was made in the letter and I presume was a copy supplied after the original went astray. In the letter, the claimant explained that he had had to stop work from 11 November 2002 to 7 January 2003 and had then been off work again from 7 July 2003. On 31 October 2003, the claimant was examined by a medical adviser, who advised that "his main injury to his back was an incident on 8.1.00 [sic] and any present symptoms are related to that injury", apparently relying on the advice given in 2000 because the claimant is not recorded as having mentioned the 2000 accident during the examination this time. On 27 November 2003, the Secretary of State gave a decision that plainly amounted to a refusal to supersede, although it did not use the terms "supersession" or "supersede". More seriously, it failed to identify the decision that had not been superseded. The significance of this will be considered below.
8. There is no evidence in the bundle before me of any response to that decision from the claimant and so it appears that the Department's letter to the claimant on 10 March 2004 was written on its own initiative. The letter began –

"You told us about a change in your circumstances.

"We have looked at the points you raise and the advice from your medical on 31.10.2003 and find there has been no change of circumstances since the previous decision was made on your claim. However, the Medical Advisor thinks that your symptoms are related to an accident on 8 1 00 [sic]. If this was an industrial accident you can make a claim for it."

9. A "claim form" was enclosed. The claimant completed it and it was received by the Department on 16 March 2004, accompanied by a letter dated 13 March 2004 in which the claimant said that he had thought that account had been taken of the 2000 accident already and that he had not previously realised that he had to make a separate claim in respect of it. On 2 July 2004, a decision-maker accepted that the claimant had suffered an industrial accident on 7 January 2000 and, on 2 August 2004, the medical adviser examined the claimant and advised that disablement resulting from that accident should be provisionally assessed at less than 1% up to 29 November 2002, 7 % from 30 November 2002 to 30 June 2003 and 12% from 1 July 2003 to 31 January 2005.
10. On 24 August 2004, the Department sent the claimant a letter headed "About your change of circumstances", saying –

"We now know that your accident happened on 7/1/00 but did not know about it until 16/3/04. Unless there were special circumstances why you could not let us know sooner, we can only pay you the new amount of £48.04 from 16/3/04."

The claimant replied, reiterating his point that he had thought he was being examined in respect of both accidents on 20 June 2000. However, that was to no avail. On 16 November 2004, the Secretary of State accepted the medical adviser's advice but decided that no additional benefit could be paid before 16 March 2004. From that date, disablement pension was awarded on the basis that the aggregate of the assessments was 38% until 31 January 2005, which fell to be rounded to 40%. It was decided –

"The assessments cannot be aggregated before 16/3/04. This is because the relevant claim was not made until 16/3/04 which was more than 13 months after the earliest date from which benefit could have been payable so backdating cannot be considered."

11. The claimant appealed against the refusal to pay additional benefit in respect of the period before 16 March 2004. The tribunal sitting on 19 August 2005 allowed the claimant's appeal on the ground that "it would be just and equitable in this case to treat the notification of the industrial accident of January 2000 to the medical adviser on 20^th June 2000, and thence to the decision maker on 21^st June 2000, as an application for supersession". On that basis, the tribunal held that the assessments should be aggregated from 21 June 2000. In his statement of reasons, the chairman made it clear that the tribunal found, on the balance of probabilities, that the claimant "did notify a claim in respect of the January 2000 accident to the department, probably in the letter of February/March 2000, but certainly by the time of [his] examination by the Medical Adviser in June 2000."
12. The Secretary of State now appeals against the tribunal's decision on the ground that the tribunal exceeded its jurisdiction by finding that the letter that it found had been sent by the claimant's wife in early 2000 was not just made in writing but was "sufficient in the circumstances" so as to constitute a proper claim, which it is submitted was a matter over which the tribunal had no jurisdiction. The appeal is brought with the leave of the regional chairman of appeal tribunals.

The law

13. The regional chairman added the following note to his grant of leave –

"Before 1999 separate claims were required in respect of specific accidents and diseases presumably because separate medical questions arose on each claim.

"Does this survive the abolition of medical questions by SSA 1998 ?

"Does it suffice for a claimant to make one claim to disablement benefit covering more than one injury or condition ?

By way of an answer to those questions, the Secretary of State refers to R(I) 4/03 and appears to argue that a claim for disablement pension is required in respect of each accident. The claimant argues that the Department was well aware of his 2000 accident within months of it occurring and that even on its own interpretation of the law it was at fault for failing to tell him that a separate claim form had to be submitted in respect of it.

14. In my respectful view, the regional chairman is wrong to suggest that the changes to adjudication wrought in 1999 by the Social Security Act 1998 have any bearing on the question whether separate claims for disablement benefit are required in respect of each specific accident. More relevant are changes to the structure of industrial injuries benefits made nearly twenty years ago by the Social Security Act 1986. However, he is right to suggest that much of the difficulty in this case is attributable to the 1998 Act. The regulations made under the 1998 Act do not make adequate or consistent provision for the determination of disablement benefit cases.
15. The 1986 Act abolished disablement gratuities for assessments of less than 20% disablement and, although the threshold for entitlement to a disablement pension was reduced to 14%, the overall effect was that benefit was no longer payable in respect of disablement assessed at less than 14%. However, provision was made for the aggregation of assessments of disablement, so that people could have the effect of a minor injury suffered in an industrial accident taken into account on a claim for a disablement pension in respect of another industrial accident if the combined disablement was at least 14%. After consolidation, the current legislative provision is section 103(2) of the Social Security Contributions and Benefits Act 1992, which provides –

"(2) In the determination of the extent of an employed earner's disablement for the purposes of this section there may be added to the percentage of the disablement resulting from the relevant accident the assessed percentage of any present disablement of his –

(a) which resulted from any other accident after 4^th July 1948 arising out of and in the course of his employment, being employed earner's employment, and

(b) in respect of which a disablement gratuity was not paid to him after a final assessment of his disablement,

(as well as any percentage which may be so added in accordance with regulations under subsection (2) of section 109 below made by virtue of subsection (4)(b) of that section)."

Regulations made under section 109 permit the aggregation of assessments of disablement made in respect of prescribed diseases with those made in respect of industrial accidents.

16. Before the forerunner of that subsection came into force, a separate claim for disablement benefit (a term encompassing both gratuities and pensions) was required in respect of each industrial accident or prescribed disease because a separate award of disablement benefit was made in respect of each such accident or disease. In CI/420/1994, I said that "the requirement that assessments of disablement be aggregated makes it abundantly clear that there can only be one award of disablement pension in respect of any period and that that single award will take account of all disablement arising from industrial accidents and prescribed diseases". However, in R(I) 4/03, Mr Commissioner Howell QC pointed out that section 103(2) is permissive rather than mandatory and that the terms of section 107 make it clear that, in some circumstances, there can be more than one award of a disablement pension. He therefore held that aggregation was a matter of entitlement rather than a penalty and that a person who made more than one claim for disablement pension was entitled to more than award if that was more advantageous to him. That, I accept, is clearly correct. The implication is that aggregation must be considered as a mere alternative to a separate award.
17. As the Secretary of State submits, section 1 of the Social Security Administration Act 1992 makes a claim for benefit a condition of entitlement to benefit and therefore, where disablement pension is in payment, a separate claim for benefit must be made before a separate award of disablement pension can properly be made in respect of another industrial accident. However, R(I) 4/03 does not imply that the lack of a further claim for benefit prevents aggregation within an existing award of disablement pension. What is required in such cases is not a new claim but an application for supersession of the existing award under section 10 of the 1998 Act. This, indeed, is what was submitted by the Secretary of State to the tribunal in the present case. Normally, of course, such an application is made by completing a new claim form – the new claim is treated in the alternative as an application for supersession if the claim fails because the assessment of disablement is less than 14% – but neither section 1 of the 1992 Administration Act nor R(I) 4/03 nor section 10 of the 1998 Act makes the completion of a claim form a requirement for an application for supersession.
18. Nor is a new claim for disablement pension necessary before it is decided whether or not the claimant has been the victim of another industrial accident. Even if "claim" in section 29(1) of the 1998 Act does not encompass an application for supersession, a claimant is entitled to have the issue whether he has suffered an industrial accident determined under section 29(2) if he has made a relevant application for supersession, provided he has also made an application for a declaration that the accident was an industrial accident. Moreover, because "claim for benefit" is defined in regulation 2(1) of the Social Security (Claims and Payments) Regulations 1987 (S.I. 1987/1968) as including an application for a declaration that an accident is an industrial accident, regulation 4(1) of those Regulations requires that such an application must be made in writing on a form approved by the Secretary of State "or in such other manner, being in writing, as the Secretary of State may accept as sufficient in the circumstances of any particular case". Mere notification that an accident has occurred therefore does not amount to an application for a declaration that it was an industrial accident. (Regulation 4(1) also, of course, has the effect that the Secretary of State may require that an accident be adequately identified within a claim for disablement pension before it is effective for the purposes of section 29(1).)
19. Nevertheless, although the term "claim for benefit" encompasses an application for a declaration that an accident is an industrial accident and a claim for disablement pension includes a claim for such a declaration if one has not already been made, a claim for disablement pension and an application for a declaration are different things. The date from which there is entitlement to benefit is determined by the date on which the claim for disablement pension, or the application for supersession of an existing award of disablement pension, is made. The date on which an application for a declaration is made has no bearing on the date from which the claimant is entitled to benefit, save that obviously in practice there must have been such an application for a declaration before there can be an assessment of disablement which in turn must be before an award of benefit can be made whether on the determination of a claim or on the supersession of an earlier award. In practice, since the claim form for disablement pension includes an application for a declaration that the claimant has suffered an industrial accident and can be treated in the alternative as an application for supersession, only a single date will usually be involved, but it is important to recognise the distinction because the legislation does not preclude the possibility of an application for a declaration and an application for supersession being made on different dates.
20. It is also important to draw a distinction between a claim and an application for supersession when deciding from what date an award may be effective. The date from which a claim is effective is not the same as the date from which an application for supersession is effective, even if the application for supersession is linked to an application for a declaration in respect of a new accident. A claim for disablement pension may take effect from up to three months before the date the claim is made. The position in respect of supersessions is much more complicated. Section 10(5) of the 1998 Act provides that, subject to certain exceptions, a supersession "shall take effect as from the date on which it is made or, where applicable, the date on which the application was made". There are a number of exceptions to be found in regulation 7 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (S.I. 1999/991). There is no exception relevant to this case where the ground of supersession is mistake or ignorance of a material fact (see regulation 6(2)(b)(i)) but regulation 7(2)(a), (b) and (bb) makes provision for cases where the ground of a supersession favourable to a claimant is a change of circumstances (see regulation 6(2)(a)(i)). By regulations 7(2)(a) and 8, the supersession is effective from the date of the change, provided notice of the change was given to the Secretary of State within a month or, in special circumstances, within thirteen months. Otherwise, the supersession is effective from the date when notice of the change was given (regulation 7(2)(b)) or, where the Secretary of State acts of his own motion, from the date he commenced action with a view to supersession (regulation 7(2)(bb)).
21. An additional layer of complication is added by the fact that regulation 26(c) of the 1999 Regulations provides one of the exceptions to the general rule that appeals normally lie only against "outcome decisions". It provides that an appeal lies against an assessment of disablement. The consequence is that a tribunal may make a decision in respect of the assessment of disablement without having any jurisdiction to make the consequent decision as to entitlement to benefit. Presumably, in a case where there is already a current award of disablement pension, the consequent decision must be done by way of a supersession of that award. However, there is no provision in the 1999 Regulations having the effect that the supersession of the award of disablement pension necessary in the light of the supersesson of the assessment automatically has the same effective date as the supersession of the assessment. In CI/1547/2001, I therefore suggested that it was necessary to treat any appeal against an assessment of disablement as being also against the consequent decision as to entitlement to benefit if unfairness was to be avoided. I accept that that may undermine the effect of regulation 26(c) but it is hard to see any alternative way of making the system work sensibly.
22. The problem arising in the present case is similar but it arises at the stage of the Secretary of State's decision-making. In order for a supersession of an award of benefit to take effect from the same date as the supersession of the assessment upon which it is based takes effect, it seems to me generally to be necessary to regard the ground for supersession of an assessment also to be the ground for the consequent supersession of the award of benefit as the worsening in the claimant's condition reflected in the assessment rather than the making of the assessment. That approach ensures that the material change of circumstances, and therefore the date of notification, is the same for both supersessions. It also reflects reality because the claimant's purpose in notifying an increase in the extent of his disablement is usually to obtain an increase in the amount of benefit he receives. Thus, if a person applies for supersession of an assessment on the ground that his condition has worsened, the ground upon which his award should also be superseded should be the worsening of his condition and not the making of the assessment. To supersede the award on the ground that the change of circumstances was the making of a declaration that the relevant accident was an industrial accident or was the making of the assessment of disablement would make no sense when the application for supersession must necessarily be made before those events take place.
23. Moreover, at least in some circumstances, if a claimant has applied for supersession of the assessment, the claimant must be treated as also having applied for supersession of the award, because supersession of the award on the Secretary of State's own motion would result in it being effective from a later date than the supersession of the assessment. That might not be strictly necessary where supersession of the award is on the ground of change of circumstances, because the Secretary of State may be able to apply regulation 7(2)(b) rather than regulation 7(2)(bb) even where the claimant has made no application for supersession of the award, but it might make a substantial difference if the ground of supersession is mistake or ignorance of a material fact.

Analysis of the tribunal's decision

24. In the present case, the Secretary of State's submission to the tribunal was to the effect that the existing award of disablement pension fell to be superseded under regulation 6(2)(a)(i) of the 1999 Regulations on the ground of change of circumstances and that the change of circumstances was the assessment of disablement made in respect of the 2000 accident. It was then submitted that, by virtue of section 10(5) of the 1998 Act, the supersession had to be effective from the date of the application unless regulations provided otherwise and that, as the accident had occurred more than thirteen months before the application for the declaration that it had been an industrial accident, which it was implicitly argued was the relevant application for supersession, the supersession had to be effective from the date of that application. That submission seems to me to show some confusion as to whether the relevant change of circumstances was the change in the extent of the claimant's disablement, the making of the assessment of disablement or the occurrence of the industrial accident.
25. However, there are also difficulties with the tribunal's approach. It was entitled to find that the claimant or his wife had informed the Department of Social Security in February or March 2000 that he had suffered an accident on 7 January 2000, but its finding that the claimant had thereby notified "a claim" was inappropriate. By virtue of regulation 4(1) of the 1987 Regulations, a claim, whether for benefit or for an industrial accident declaration, had to be either on an official form or in some other form that the Secretary of State accepted was sufficient and, as the Secretary of State submits, there was no right of appeal at that time against his judgment as to the sufficiency of a claim. Consequently, the tribunal appears to have acted outside its jurisdiction. On the other hand, because there was already an outstanding award, the "claim" fell to be treated as an application for supersession and there was no provision that had the effect that it was for the Secretary of State to judge the sufficiency of such an application. Moreover, the tribunal did not actually base its decision on the "claim" made in February or March 2000 but on what it regarded as an application for supersession (although described as a "claim" in the statement of reasons) made in June 2000.
26. These points give rise to other difficulties. I have some doubt that the tribunal was entitled to find that there had been an "application" for supersession in June 2000, when the claimant had told the medical adviser about the accident on 7 January 2000 and that information had later been passed to the Secretary of State. The tribunal was perfectly entitled to take the view that the Secretary of State ought to have acted on that information before giving his decisions on 29 June 2000 and 12 April 2001 but the question is whether the circumstances in which the information was provided imply any form of application. However, of course, the letter that the tribunal found had been received by the Department in February or March 2000 could have been an application for supersession. Alternatively, it might be suggested the tribunal's real reasoning was that there had not been an application for a supersession in June 2000 but a mere giving of notice, both in the letter of February or March 2000 and at the medical examination on 20 June 2000, of the happening of an accident which could provide a better the date from which the supersession of 16 November 2004 could take effect under regulation 7(2)(b) than the date of the formal application for a declaration that the accident was an industrial accident.
27. Both these arguments fail to consider the effect of the decisions of 29 June 2000 and 12 April 2001, the latter replacing the former and being regarded by the Secretary of State as the decision that was superseded on 16 November 2004 (because the appeal heard on 8 April 2002 was concerned only with entitlement before 6 January 2000). If the relevant circumstance triggering the supersession on 16 November 2004 was the occurrence of the accident on 7 January 2000, the supersession cannot have been the supersession of a decision given after that accident if the ground of supersession was a change of circumstances. The tribunal's decision can stand only on the basis that, on 16 November 2004, when the Secretary of State made the decision under appeal to the tribunal, there remained outstanding an application for supersession made in 2000 upon which there had been no determination on 12 April 2001. In the circumstances of this case, I do not consider that to be realistic.
28. Indeed, it was the claimant's understanding at the time that the decision of 12 April 2001 had taken account of his representations in respect of the accident on 7 January 2000. The claimant did not challenge that award until 10 April 2003 and even then he suggested that the award had only ceased to reflect his disablement in November 2002, when his condition had worsened. His approach is supported by the fact that, when disablement in respect of the accident of 7 January 2000 was eventually assessed in 2004, it was assessed at less than 1% until 29 November 2002. Thus, on the basis of the unchallenged assessments, the worsening in the claimant's condition in 2000 was really attributable to the 1997 accident and the claimant was correct in thinking that the assessment made on 12 April 2001 reflected all his current disablement so that no outstanding application for supersession needed to be pursued, even though the effects of the accident on 7 January 2000 had not in fact formally been taken into account.
29. Moreover, the aggregation of the assessment of disablement made in respect of the accident of 7 January 2000 with the earlier assessments cannot possibly result in any change of entitlement to benefit until as late as 1 July 2003. The new assessment was only 7% from 30 November 2002 to 30 June 2003, which merely increases the overall assessment from 26% to 33% and results in the same rounded figure of 30%. Only from 1 July 2003 does the addition of 12% result in an aggregate assessment of 38% and so a rounded figure of 40%. Thus, although the claimant originally sought the backdating of the award made on 16 November 2004 to 7 January 2000, the real question for the Secretary of State on 16 November 2004 and for the tribunal was whether the new award could take effect from 1 July 2003. Even the tribunal's approach would not have resulted in payment in respect of any period before that date.
30. The tribunal did not consider the date from which the claimant might have become entitled to further benefit and, in consequence, focussed on events in 2000, soon after the accident, rather than focussing on events after the claimant's condition had worsened in 2002. In my judgment, the tribunal erred in law because it could not reasonably have concluded that there was any outstanding application for supersession made before 12 April 2001. The tribunal should have considered whether the award of 12 April 2001 was still the relevant operative decision on 16 November 2004 and, if so, on what ground it might be superseded and from what date.

Applying the law to the facts

31. As I have recorded, the approach taken by the Secretary of State in the present case is that the relevant application for supersession was made on 16 March 2004 on the ground of change of circumstances and that the decision that falls to be superseded is the decision of the Secretary of State dated 12 April 2001. The "claim form" submitted on 16 March 2004 failed as a claim for an award of a separate disablement pension because the assessment of disablement was less than 14% and normally I would agree that it would have to be treated as an application for supersession. However, in the circumstances of this case, even if it is treated as an application for supersession, it cannot be an application for the supersession of the decision of 12 April 2001 on the ground of change of circumstances under regulation 6(2)(b)(i) of the 1999 Regulations. This is not a case where the claimant has suffered a further industrial accident since the decision being superseded was made because the relevant accident was on 7 January 2000, over a year before 12 April 2001. The making of the declaration that the claimant had suffered an industrial accident on 7 December 2000 and the consequent assessment of disablement also cannot be the relevant change of circumstances because they occurred after the "application" on 16 March 2004. Nor can the worsening of the claimant's condition be the relevant change of circumstances if the relevant application is that made on 16 March 2004. That is because the application on 10 August 2003 for supersession of the assessment dated 30 March 2001 must also be treated as an application for supersession of the award dated 12 April 2001 based on that assessment, for reasons I have also already explained. There had not been any further worsening since 10 August 2003 and so there had already been an application in respect of what, in my judgment, was the only possible relevant change of circumstances between 12 April 2001 and 16 March 2004.
32. It seems to me that the application made on 10 August 2003 and the determination made on 27 November 2003 are the keys to this case. The latter determination was, it will be recalled, a refusal to supersede that failed to identify the decision that was not being superseded. Normally, since the application made on 10 August 2003 has to be treated as an application made in respect of both the decision dated 30 March 2001 and the decision dated 12 April 2001, it would follow that a refusal to supersede such as that issued on 27 November 2003 would be treated as a refusal to supersede both those decisions. If that approach were to be taken in the present case, two consequences would flow. First, the decision of 27 November 2003 would turn out to be the decision that fell to be superseded in the light of the application made on 16 March 2004. Although it would not have superseded the award of 12 April 2001 so that it would be possible to speak of that award continuing, the refusal to supersede would nonetheless have been the last effective decision in respect of that award. Secondly, the ground of supersession would turn out to be, not a change of circumstances within the scope of regulation 6(2)(a)(i) of the 1999 Regulations, but a mistake as to, or ignorance of, the material fact that the accident to which the medical adviser attributed the increase in the claimant's disablement was an industrial accident, which would fall within the scope of regulation 6(2)(b)(i). If that were the ground of supersession, the supersession would be effective from the date of application on 16 March 2004, which is what the Secretary of State originally decided, albeit for different reasons.
33. However, I do not consider that treating the determination of 27 November 2003 as a refusal to supersede the decision of 12 April 2001 reflects what actually happened in this case. It is important to recall that the letter written to the claimant on 10 March 2004 was written on the Department's own initiative and referred to the claimant's previous application for supersession and the medical advice received in respect of it. In my judgment, the Secretary of State's decision on 27 November 2003 must be taken to have been a refusal to supersede only the assessment of disablement of 30 March 2001 and not also the decision of 12 April 2001, because it appears clear that he kept the application to supersede the decision of 12 April 2003 alive while he considered the implications of the medical advice and eventually sought further information from the claimant. That is certainly what the Secretary of State ought to have done and I consider that it is what he did do. (If the letter of 10 March 2004 had been prompted by a letter from the claimant and if the decision of 27 November 2003 were to be treated as having been a refusal to supersede the award of benefit, the claimant's letter would presumably have had to be treated as an application for revision.)
34. If, as I consider is the case, the determination of 27 November 2003 was not a refusal to supersede the decision of 12 April 2001, the application for supersession made on 10 April 2003 remained outstanding until it was finally determined on 16 November 2004. The "claim" submitted on 16 March 2004 did not have to be treated as an application for supersession at all because there was already such an application pending. The decision of 16 November 2004 ought therefore to have been a supersession on the ground of change of circumstances and the change of circumstances was the worsening in the claimant's condition, notice of which had been given on 10 August 2003.
35. I do not consider that it matters that the claimant did not then ascribe the cause of his worsening condition to the 2000 accident rather than the 1997 accident, particularly as the Secretary of State had already been given advice on 20 June 2000 that the 2000 accident had contributed to the claimant's back condition (although the contribution was subsequently regarded as minimal at that time) and had further been advised on 31 October 2003, before he made his decision, that the worsening since 2001 was entirely attributable to the 2000 accident. A claimant can be expected to inform the Secretary of State of a worsening in his condition but it is for the Secretary of State to arrange for a medical examination to determine its relevance. It was also, of course, for the claimant to inform the Secretary of State about the circumstances of the 2000 accident, but he had done that before the decision on 16 November 2004 was made. There was no requirement that that information be provided within the application for supersession itself, as there would have been if a new claim had been necessary.
36. The implication of the assessment of disablement made on 2 August 2004 was that the worsening in the claimant's condition had become significant on 30 November 2002, which happens to be only just after the date suggested by the claimant on 10 August 2003. The worsening was therefore significant more than a month before notice was given to the Secretary of State on 10 August 2003 and so the supersession can be effective only from 10 August 2003, unless regulation 8 of the 1999 Regulations applies. I am satisfied that regulation 8 does not apply because, although "special circumstances" might be found in the history of this case, those circumstances did not make it impracticable for the claimant to notify the Department of the worsening in his condition in, say, the early part of 2003 and, at any rate, before 10 August 2003.
37. I am therefore satisfied that the claimant is not entitled to the additional disablement pension he would have received as a result of the tribunal's decision in respect of the period of about six weeks from 1 July 2003 to 9 August 2003. To that limited extent, the Secretary of State's appeal succeeds. However, the claimant is entitled to the rest of the benefit due under the tribunal's decision, which is for the period from 10 August 2003 to 15 March 2004, although for reasons that are different from those given by the tribunal.

Observations

38. The Secretary of State's appeal does not succeed in respect of the period from 10 August 2003 to 15 March 2004 only because the claimant notified him of the worsening of his condition on 10 August 2003 and no decision on entitlement to benefit, as opposed to the assessment of disablement, was made between then and 16 November 2004. In the more common case, where the first intimation of a claimant's worsening condition as a result of a previously undisclosed industrial accident is made in a "claim" for disablement benefit made expressly in connection with that accident, a supersession of an existing award of disablement benefit will usually be effective from the date of the "claim".
39. This exposes a minor anomaly, because a new claim can be effective for up to three months before it is made. The Secretary of State may wish to consider amending the 1999 Regulations to allow a supersession to be back-dated to the same extent as a claim where it arises out of a new claim that has failed because the assessment of disablement is too low. The present anomaly is sometimes overlooked because the distinction between claims and applications for supersession is not always made (see, for example, the decision of 12 April 2001 in the present case, which was made effective from three months before the date when the claimant submitted his "claim" on 6 April 2000).
40. I also suggest that amendment of some of the forms currently in use might be considered, as they appear to overlook the possibility of a claimant suffering more than one industrial accident and the assessments of disablement then being aggregated. Both the claim forms for disablement pension and the forms used for applications for supersession of assessments of disablement require the claimant to identify a single relevant accident, which may not be appropriate where assessments of disablement may be, or may have been, aggregated. I suggest that either a claimant should be able to refer to more than one accident on such forms or else it should be made abundantly clear that a separate form should be completed in respect of every accident that might be a cause of the claimant's current condition and that, otherwise, benefit might be lost. Had the forms in the present case invited the claimant to refer to more than one accident, it seems likely that he would have mentioned the 2000 accident both on the "claim" made on 6 April 2000 and on the application for supersession made on 10 April 2003 and a lot of argument would have been avoided.
41. Those are relatively minor matters. The more serious problems that have arisen in the present case seem to me to flow from regulation 26(c) of the 1999 Regulations, which encourages the separation of assessment decisions from entitlement decisions. Given the abolition by the 1998 Act of the distinction between adjudicating medical authorities and adjudication officers and the merging of their roles in the Secretary of State and given also the fact that, by virtue of regulation 36(2)(b)(i) of the 1999 Regulations, all appeals concerning disablement pensions are heard by tribunals with the same constitution irrespective of the issues arising on the appeals, encouraging the separation of decision-making appears to me to serve little purpose. If there is some reason why separate decisions in respect of assessment and entitlement should continue to be made, I suggest that the Secretary of State needs to make proper consequential provision so that the system can work satisfactorily without deemed applications and deemed appeals.

(signed on the original) MARK ROWLAND

Commissioner

19 September 2006