DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

 

 

The DECISION of the Upper Tribunal is as follows.

 

The decision of the Sunderland Tribunal dated 16 January 2009 under file reference 236/08/02735 does not involve an error on a point of law.

 

The claimant’s appeal is accordingly dismissed.

 

This decision is given under section 11 of the Tribunals, Courts and Enforcement Act 2007.

 

REASONS FOR DECISION

 

The decision in summary

 

1.         This is the claimant’s appeal to the Upper Tribunal against the decision of a First-tier Tribunal dated 16 January 2009.  That tribunal’s decision involves no error of law.  I therefore dismiss the claimant’s appeal to the Upper Tribunal. 

 

The issue in this appeal to the Upper Tribunal

 

2.         The issue in this appeal to the Upper Tribunal depends on the perspective which is taken.  The claimant’s view is that the issue is the failure of the First-tier Tribunal’s decision of 16 January 2009 to attach sufficient weight to his medical evidence, which he argues supports his contention that his current foot condition is directly attributable to an injury which he sustained in an industrial accident on 18 March 1972.

 

3.         An alternative perspective is that the underlying issue in these proceedings is the extent to which a claimant can use the social security decision making and appeals machinery repeatedly to challenge the finding made by a series of tribunals (albeit with one limited exception) that an industrial accident did not result in a loss of faculty.

 

The complex background to these proceedings

 

4.         The claimant in this case is is a gentleman, now aged 57, who suffers from a number of medical conditions.  He has had an award of industrial disablement benefit for some years.  In particular he suffered a further industrial accident on 11 October 1973, as a result of which he was awarded industrial disablement benefit, and which is not the subject of this appeal.  The claim in respect of the 1973 accident was made in 1995.  In 2003, in decision CI/1370/2003, Mr Commissioner Turnbull ruled that the claimant had an assessment of 35 per cent disablement from 16 April 1994 for life in respect of the back injury he had sustained on 11 October 1973.  The Commissioner held that the supersession effected by that decision was operative from the date of the claimant’s application for a supersession (30 January 2001).

 

5.         As well as the assessment for the 1973 back injury, the claimant has also had separate disablement assessments in relation to prescribed diseases (PDs) A12 (carpal tunnel syndrome) and D4 (allergic rhinitis).  These various assessments have been aggregated to arrive at the current award of industrial disablement benefit based on an assessment of 50 per cent disablement. 

 

6.         The present appeal is only the most recent in a series of appeals relating to the claimant’s entitlement to industrial disablement benefit.  The Upper Tribunal records database (which only goes back to 2000) reveals that the claimant has brought a total of 25 applications and appeals before the Social Security Commissioners and now the Upper Tribunal in relation to his entitlement to industrial disablement benefit.  Only some of these relate to the foot injury sustained on 18 March 1972.  He has, inevitably, also had a large number of tribunal hearings at first instance.  As at October 2007 there were a total of 45 tribunal judges and other members who were excluded from hearing any appeal by the claimant because of their past involvement in his cases.

 

7.         For convenience I am referring in this decision to the tribunals which have heard appeals relating to the claimant’s foot injury as Tribunal 1, Tribunal 2, etc.  It will be plain from the previous paragraph that the claimant has attended many other tribunals on other matters.  Be that as it may, the present appeal is an appeal from the decision of Tribunal 6, using this (rather limited) numbering system.

 

Tribunal 1: no loss of faculty

 

8.         On 2 April 2001 the claimant made a claim for industrial disablement benefit in respect of the foot injury he suffered on a building site on 18 March 1972.  On 17 October 2001 the claimant was examined by Dr Staves on behalf of the Department.  The doctor’s view was that there was no loss of faculty as a result of that accident.  The doctor stated that “It is difficult to attribute the present conditions to the accident nearly 30 years ago”.  The Secretary of State duly decided that there had been no relevant loss of faculty.  The claimant appealed that decision.

 

9.         On 20 February 2002 an appeal tribunal (Tribunal 1, Tribunal Chairman: F M Walker) confirmed the Secretary of State’s decision and dismissed the appeal, concluding that it was not satisfied that there was any loss of faculty arising from that industrial accident and injury.  Mr Commissioner Turnbull set aside the tribunal’s decision on the basis that the tribunal had not made its reasoning sufficiently clear (decision CI/2292/2002).

 

Tribunal 2: loss of faculty assessed at 3 per cent

 

10.       On 4 December 2002 a new appeal tribunal (Tribunal 2, Tribunal Chairman: I D Jacques) held a rehearing of the claimant’s appeal. This time – and for the only time on this point – the claimant’s appeal was allowed.  The new tribunal ruled that there was a loss of faculty, described as pain on walking, with the resulting disablement assessed at 3 per cent for the fixed period from 1 July 1972 to 31 December 2004. 

 

11.       On the same day, Tribunal 2 also dealt with five other appeals brought by the claimant relating to certain prescribed diseases, but they are not relevant to the present appeal.  The claimant sought to appeal the tribunal’s decision in relation to the foot injury, arguing that the assessment was too low.  On 3 October 2003, following an oral hearing, Mr Commissioner Turnbull refused the claimant’s application for permission to appeal (determination CI/1368/2003).

 

12.       In refusing permission to appeal, Mr Commissioner Turnbull ruled that the tribunal had been entitled to limit the award to a fixed period ending on 31 December 2004 because of the possibility of an operation to resolve a problem with the claimant’s foot.  The Commissioner noted that if that treatment did not materialize, the claimant could apply for a supersession and seek the substitution of an award of unlimited duration.

 

Tribunal 3: no loss of faculty

 

13.       The claimant did not wait long.  On 16 October 2003 he applied for a supersession, arguing that there was no operation or cure for his foot problem.  A decision maker asked the claimant’s GP about the prospects of any surgery for the foot problem.  The GP’s reply was that “I can find nothing legible in the notes about any foot injury in 1972”.

 

14.       However, on 13 April 2004 a decision maker decided to supersede the decision of the tribunal dated 4 December 2002 and to extend the industrial disablement assessment in respect of the foot injury of 3 per cent for life.  The claimant had been the subject of an earlier aggregation decision on 15 December 2003, with the result that he was assessed as having a total disablement of 47 per cent which was now re-aggregated to 50 per cent.  That aggregation decision was likewise extended for life.  The claimant then appealed against the decision of 13 April 2004, arguing that his condition had deteriorated and that the 3 per cent assessment in respect of the foot injury should have been increased.

 

15.       On 17 March 2005 a further tribunal (Tribunal 3, Tribunal Chairman: R A Coia) heard the claimant’s appeal.  This tribunal concluded that there was no loss of faculty arising from the industrial accident as “there is no relationship between the present symptoms and the accident of 18 March 1972”.  The tribunal accordingly decided that the assessment of disablement in respect of the foot injury expired on 31 December 2004, as Tribunal 2 had originally stipulated.

 

Tribunal 4: no grounds to supersede decision of Tribunal 3

 

16.       On 15 August 2005 the claimant again applied for a supersession, this time of the tribunal decision dated 17 March 2005, arguing that his condition had deteriorated since then.  On 20 October 2005 he was examined by Dr Gael on behalf of the Department.  Dr Gael’s view was that there was no loss of faculty from the industrial accident on 18 March 1972: “It is very difficult after 33 years to say the bony exostosis on the dorsum of the foot was caused by the index accident”.  Dr Gael concluded that there had been no change of circumstances since the previous assessment.  On 1 November 2005 the claimant was notified of the Secretary of State’s decision that there were no grounds for superseding the tribunal decision dated 17 March 2005.  He appealed.

 

17.       On 5 April 2007 another tribunal (Tribunal 4, Tribunal Chairman: B A Connell) confirmed the Secretary of State’s decision and dismissed the claimant’s appeal.  In a careful and detailed Statement of Reasons, the tribunal concluded that its findings were essentially the same as those of the tribunal dated 17 March 2005.  The tribunal ruled that that earlier tribunal decision was not given in ignorance of or under a mistake as to any material fact and there had been no relevant change of circumstances since that date.  The tribunal accordingly refused to supersede the earlier tribunal decision.

 

 

 

 

Tribunal 5: no grounds to supersede decision of Tribunal 4

 

18.       On 16 October 2007 the claimant again applied for a supersession.  This time he enclosed what appears to be an extract from a medical report from his consultant, a Mr Bansal.  I say “appears to be” advisedly, as the extract is not on official headed paper and is not signed.  It may not even be complete.  However, there is no suggestion that it is other than an accurate extract.  The extract stated in part:

 

“Many thanks for referring this 55 year old gentleman, who presents with right foot pain.

 

I note he gives a history of having injured his right foot in 1962 after falling from scaffolding, landing heavily on the right heel and also having some bricks fall on the foot, causing soft tissue damage.

 

He made a good recovery at the time, however he tells me that over the last 10 years, things have deteriorated and he is now left with pain in the great toe joint over the dorsum of his midfoot related to a prominent bony swelling and also in the area of his right heel cord.”          

 

19.       The claimant argued that this report showed that the decision of Tribunal 4 was wrong, and that the tribunal medical member was either incompetent or lying.

 

20.       I merely observe that in this particular passage from the extract (i) the reference to 1962 is presumably a misprint for 1972; (ii) the accident as described appears to be a conflation of the two accidents in March 1972 and October 1973; and (iii) Mr Bansal is in effect reporting the claimant’s account of the history of the foot injury, rather than expressing a definitive view as to causation.

 

21.       On 27 November 2007 the claimant was examined by Dr Wubetu on behalf of the Department.  The doctor recorded his view as follows:

 

“I believe the accident was a trigger factor for the osteoarthritis in his right foot and ankle.  However, he has now developed arthritis in most joints of his body as a result of degenerative process.  Therefore, it is unlikely to attribute his present condition to the accident which happened 35 years ago.”

 

22.       The doctor accordingly advised that the effects of the accident had not changed since the last assessment.  On 3 December 2007 the claimant was notified of the Secretary of State’s decision that there were no grounds for superseding the tribunal decision dated 5 April 2007.  The claimant appealed.

 

23.       On 11 June 2008 another tribunal (Tribunal 5, Tribunal Judge: K R Souter) confirmed the Secretary of State’s decision and dismissed the claimant’s appeal.  In a further careful and detailed Statement of Reasons, the tribunal explained why the claimant had not discharged the burden of proof of showing that there had been a change of circumstances since the assessment of disablement on 5 April 2007.

 

24.       The claimant applied for that tribunal decision to be set aside or, failing that, for permission to appeal.  On 13 August 2008, District Chairman Moss refused both applications, giving detailed reasons.  The claimant then applied to the Social Security Commissioner for permission to appeal.  Mr Commissioner Turnbull refused such permission on 11 September 2008 on the basis that there was no arguable error of law in the decision of Tribunal 5 (determination CI/2689/2008).

 

Tribunal 6: no grounds to supersede decision of Tribunal 5

 

25.       Undaunted, the claimant completed a fresh BI100A claim form for industrial disablement benefit on 26 August 2008.  He referred to the foot injury sustained in the 1972 industrial accident.  He added that he had made a claim in respect of the same accident in 2008 (probably a reference to his application in late 2007).  He also reported that he had made earlier claims for industrial disablement benefit in respect of carpal tunnel, allergic rhinitis and his back injury. In addition, he included copies of further evidence relating to the treatment he had received for his foot. 

 

26.       The first was a letter from the Chief Executive of his local NHS Trust in response to his own letter to the hospital asking for clarity of the diagnosis by Mr Bansal. The Chief Executive wrote in part that “It is clear from your care records that Mr Bansal is of the opinion that the changes in your foot are indeed related to the injury you sustained in the past”.  The writer then summarized Mr Bansal’s report as set out in the extract referred to above.  I note that this letter is not a report by Mr Bansal.  It is a letter from a hospital manager giving his opinion as to the opinion held by Mr Bansal.

 

27.       The second was a letter from the Healthcare Commission investigator following the claimant’s complaint about his hospital treatment.  This is a detailed four-page account of the investigation into the complaint.  It refers to advice obtained from Mr Jain, an independent orthopedic surgeon.  Mr Jain did not actually see the claimant himself.  Inevitably the letter is mostly concerned with the treatment that the claimant received at the hospital.  However, the writer also states: “Mr Jain considers that the diagnoses that you received were perfectly correct.  Your history did suggest that you had an injury to the foot leading to metatarsal fractures and some soft tissue injuries.  Those fractures and injuries are quite prone to produce secondary metatarsalgia and some arthritic change.”

 

28.       On 27 October 2008 the claimant was examined by Dr Groves on behalf of the Department.  Dr Groves paid particular account to the reports of the views of Mr Bansal and Mr Jain.  Dr Groves’s view was as follows:

 

“Mr Bansal’s report states that he had soft tissue damage only as a result of his accident.  This would be unlikely to cause long-term disability…X-Rays done by Mr Bansal showed early degenerative changes only.  This would not be consistent with an injury in 1972.  They would however be consistent with his generalized degenerative arthritis.  Mr Jain’s report does state that fractures can lead to early OA changes, quite correctly, but the degree of change noted is not consistent with the time elapsed from the date of injury.  Thus it is highly unlikely that his foot pain is as a direct result of his accident in 1972.”

 

29.       On 31 October 2008 a decision maker informed the claimant that the decision dated 3 December 2007 (which, of course, had been confirmed by Tribunal 5) could not be changed.  On 3 November 2008 the claimant appealed.

 

30.       On 16 January 2009 another tribunal (Tribunal 6, Tribunal Judge: F M Walker) confirmed the Secretary of State’s decision and dismissed the claimant’s appeal.  In its decision notice, the tribunal recorded that “The assessment of disablement resulting from the accident on 18/03/72 cannot be reconsidered as the effects of the accident have not changed since the assessment of disablement was made on 11 June 2008”. The Statement of Reasons set out why the tribunal found that there had been no deterioration or change in the effects of the accident since that previous assessment.

 

The grounds of appeal against the decision of Tribunal 6

 

31.       The claimant set out his complaints about the decision of Tribunal 6 in lengthy and in places intemperate terms.  In essence he has three main grounds of appeal.  First, he complains that there was a breach of natural justice in that his case was put back in the list on the day of the hearing and allocated insufficient time by the tribunal.  Second, he argues that the medical member of the tribunal was an eye specialist, rather than a foot specialist, and so not qualified to rule on his appeal.  Third, he contends that the tribunal failed to take into account (and indeed even refer to directly) the reports of Mr Bansal and Mr Jain.

 

32.       District Tribunal Judge Coia refused permission to appeal.  I later granted the claimant permission to appeal, although indicating that I remained to be persuaded on the three areas identified above.  However, I indicated that there might well be a question mark over the jurisdictional basis of the tribunal’s decision, and in particular whether it was properly regarded as being the claimant’s application for a supersession.

 

The claimant’s three grounds of appeal in respect of the decision of Tribunal 6

 

(1)        The time allotted by the tribunal to hearing the appeal

 

33.       The first ground is that there was a breach of natural justice in that his case was put back in the list on the day of the hearing and allocated insufficient time by the tribunal.  The claimant complains that two other cases were heard in the time slot allotted for his appeal and as a result the tribunal was running late and, as he puts it, “in a hurry to get home”.

 

34.       Tribunals do their best to hear appeals at the allotted time but this is not always possible, for all sorts of reasons.  Just as patients may have to wait for a time beyond their booked appointment at hospital, so also tribunal hearings may overrun.  Furthermore, list management is an art and not a science.

 

35.       I have examined the Record of Proceedings completed by the tribunal judge.  Unfortunately it does not record the start time and finishing time for the hearing.  However, this is merely a matter of good practice rather than any legal requirement.  It is plain that the Record of Proceedings is simply a summary of the main issues discussed and does not pretend to be a verbatim transcript, but again that is not its purpose.

 

36.       The Statement of Reasons makes it clear that the tribunal considered the issues and examined the evidence in the appeal carefully. There is nothing there to support the contention that the appeal was allotted insufficient time.  Given the broad discretion given to the First-tier Tribunal to regulate its own procedure, there is no basis for arguing that the tribunal in this case erred in law.  I therefore dismiss this ground of appeal.

 

(2)        The expertise of the medical member of the tribunal

 

37.       The claimant’s second ground of appeal is that Professor Crombie, the medical member of Tribunal 6, was an eye specialist, rather than a foot specialist, and so not qualified to rule on his appeal.  The claimant has apparently deduced from a Google search that Professor Crombie is a Consultant Ophthalmologist and for present purposes I am prepared to proceed on the basis that that is indeed the case.

 

38.       There is, however, no legal requirement that the medical member of the First-tier Tribunal be a specialist in the particular field of medicine relating to the claimant’s condition.  Nor does legislation impose any such requirement.  Section 4 of, and Schedule 2 to, the Tribunals, Courts and Enforcement Act 2007 provide for the appointment of judges and other members to the First-tier Tribunal.  Further details are set out in the Qualifications for Appointment of Members to the First-tier Tribunal and Upper Tribunal Order 2008 (2008/2692) which simply refers to a medical member having the status, for example, of “a registered medical practitioner”.  

 

39.       The Senior President’s Practice Statement on the Composition of Tribunals then specifies that in appeals such as the present one the tribunal must comprise “a Tribunal Judge and a Tribunal member who is a registered medical practitioner” (paragraph 5).  There is no suggestion that the doctor must be a specialist in a particular field of medicine.  A moment’s thought will show that any such stipulation would make the process of listing tribunals unmanageable.  Equally, there is no requirement that the tribunal judge is a specialist in a particular field of law which may be relevant to the appeal being heard (for example, a claim to bereavement benefit may involve complex issues relating to the recognition of foreign marriages, which a tribunal judge is expected to be able to deal with even if he or she is not a family lawyer).

 

40.       I acknowledge that in some instances Regional Tribunal Judges will seek to arrange for a particular type of specialist (e.g. a chest physician) to be listed to sit on a tribunal dealing with particular appeals (e.g. in relation to a series of claims by coal miners).  However, this is part of the overall judicial management function of Regional Tribunal Judges, in the exercise of which they have a broad discretion to use their judicial resources efficiently. As Mrs Commissioner Parker explained in unreported decision CSI/146/2003:

 

“It is for the President of the Appeals Service to select members of the appeal tribunal in a particular case and the pool is inevitably limited to those on the appointed membership panel.  Even if a case is unusual, a medical member on the tribunal will ordinarily be able to deal adequately with competing medical views.  I do not consider the tribunal erred in law in failing to ensure that it had particular specialists sitting on the tribunal” (paragraph 48). 

 

I therefore dismiss this second ground of appeal.

 

(3)        The tribunal’s treatment of the “expert medical reports”

 

41.       The third and most forcefully expressed challenge to the decision of Tribunal 6 is that the tribunal disregarded the reports of Mr Bansal and Mr Jain.  The claimant argues that here he has two expert reports which outweigh the views of the Department’s doctor and of Professor Crombie and that his specialist evidence should have prevailed.  He complains that the tribunal did not even mention the reports of Mr Bansal and Mr Jain.

 

42.       It is simply untrue that the tribunal did not refer to Mr Bansal’s report by name.  At paragraph 13 of the Statement of Reasons the tribunal noted that Mr Bansal’s report “confirmed a soft tissue injury change only as a result of the accident and the [departmental] clinician’s view was that this would be unlikely to cause long term disability”.  This was a view that it was open to the tribunal to take on the evidence before it.  At paragraph 11 the tribunal had also referred to Mr Bansal’s evidence, albeit not directly by name, in mentioning that the “treating Orthopaedic Surgeon” had advised that surgery was not an option.

 

43.       The tribunal certainly did not refer to any report by Mr Jain by name.  However, the tribunal was under no obligation to do so.  The document that the claimant refers to as Mr Jain’s report was nothing of the sort; it is a letter from the from the Healthcare Commission investigator following the claimant’s complaint about his hospital treatment.  There is no suggestion that Mr Jain ever actually examined the claimant or reported directly on him.  In those circumstances the tribunal was entitled to attach little weight to the letter in question.  I therefore dismiss the third ground of appeal.

 

44.       The claimant needs to understand the very different roles of his own clinicians and those doctors who are either employed by the Department or serve as tribunal medical members.  The patient’s own clinicians are primarily concerned with his care and treatment; the origins of any particular condition are of secondary concern to them.  In contrast, tribunal medical members (and the Department’s own doctors) have no direct interest in the claimant’s care or treatment – their primary concern is deciding whether the statutory conditions for entitlement to benefit have been made out (or, in the case of the Department’s doctors, advising on that matter).

 

45.       The two groups of doctors may quite reasonably come to different conclusions on matters of medical opinion, e.g. whether a current medical condition is directly attributable to a particular incident.  In the social security decision making system, it is the tribunal’s task to adjudicate on which view is to be preferred.  The tribunal is not duty bound to accept the view advanced by the claimant’s own clinicians.

 

46.       In conclusion I am not convinced by any of the three main points on which the claimant takes issue with the decision of Tribunal 6.  The tribunal’s decision involves no error of law in any of those three respects.  However, unfortunately this is not the end of the matter.

 

The jurisdictional question: was this a supersession request or a new claim?

 

47.       When granting the claimant permission to appeal, I identified one aspect of the tribunal’s decision that might possibly involve an error of law.  The tribunal treated this case as an application by the applicant for a supersession on the basis that there had been a change in the effects of the accident since the applicant had been examined at Tribunal 5 on 11 June 2008.  In doing so, the tribunal undoubtedly based its approach on that adopted by the Department’s submission writer in his (or her) summary of the issues for the tribunal.

 

48.       The jurisdictional question is whether this analysis was correct.  If the tribunal asked itself the wrong question, then that would amount to a potential error of law and may require its decision to be set aside.

 

49.       As indicated above, the claimant did not in terms apply for a supersession.  Rather, shortly after Tribunal 5, he completed a fresh BI100A claim form for industrial disablement benefit, attaching to it the evidence from Mr Bansal and Mr Jain (see paragraphs 25-27 above).  The Department certainly treated this claim form as an application for a supersession.  Thus in their letter of 31 October 2008 the decision maker advised the claimant that “I am writing because you asked us to look again at the decision we sent you on 03/12/07. You told us that you had claimed disablement benefit and your condition had changed”.  Similarly, the tribunal was informed that the claimant “applied for the decision dated 11.6.08 to be superseded as he believed his circumstances had changed since he was examined on 11.6.08”.

 

50.       I accept that as a matter of principle a BI100A claim form for industrial disablement benefit may amount to an application for a supersession rather than a fresh claim for benefit (see CI/954/2006 at paragraph 17).  In granting permission to appeal, I asked whether the claimant was actually applying for a supersession on the basis that his condition had deteriorated since Tribunal 5. Rather, it seemed that what the claimant was really saying was not that his condition had significantly changed but that the earlier tribunal decision was wrong in the first place, because it failed to pay sufficient regard to the origins, nature and extent of his injury, and that the comments by (or attributed to) Mr Bansal and Mr Jain were being put forward in support of that argument.

 

51.       Mr D Kendall, the Secretary of State’s representative in these proceedings before the Upper Tribunal, argues that both the Department and Tribunal 6 approached the matter in the wrong way, albeit on a technicality.  His argument is that the claimant’s BI100A form should have been treated as a new claim, rather than as an application for a supersession.  Accordingly, Mr Kendall submits, if the tribunal was against the claimant on the relevance of the 1972 accident to his current foot problems, then the tribunal should have held that there was no loss of faculty, rather than that there were no grounds for superseding the 11 June 2008 decision.

 

52.       Mr Kendall’s reasoning runs as follows. Under the Social Security Act 1998 a decision on the assessment of disablement only remains operative during the period of the assessment.  In this case the claimant’s 3 per cent assessment was brought to an end by Tribunal 3, sitting on 17 March 2005, which had decided that as from 1 January 2005 there was no loss of faculty arising from the industrial accident in 1972.  This meant, so it is said, that any post-2005 application for a supersession by the claimant had to be treated as a new claim and a decision made on it accordingly.  Mr Kendall relied on the decision of the Tribunal of Social Security Commissioners in reported decision R(I) 5/02.  Unsurprisingly, the claimant makes no observations on this highly technical line of argument.

 

53.       The Tribunal of Social Security Commissioners in R(I) 5/02 was concerned with a case under the pre-Social Security Act 1998 decision making and appeals regime.  The Tribunal of Commissioners held that under that system a final assessment of disablement for a period that had come to an end could still be superseded after that date as for that purpose it had continuing effect.  This conclusion was based on the now-repealed section 47(5)(b) of the Social Security Administration Act 1992 (R(I) 5/02, paragraph 14). 

 

54.       In R(I) 5/02 counsel for the Secretary of State argued that the same analysis of an assessment of disablement as an ongoing decision continued to apply under the 1998 Act as under the 1992 Act.  However, the Tribunal of Commissioners specifically declined to express a view on that submission (R(I) 5/02, paragraph 37).  I note that the authors of the learned commentary in Social Security Legislation 2009/10 (Volume I, p.200) suggest that the same analysis does not in fact apply, “because such an assessment has no effect after the period for which it has been made comes to an end.  What is required is an entirely new assessment made on a new claim for disablement benefit”.

 

55.       That commentary undoubtedly supports the point now being taken by the Secretary of State.  However, this is to overlook a fundamental distinction between the position in R(I) 5/02 and the position in the present appeal.  R(I) 5/02 was concerned with a case in which the appellant had suffered one industrial accident and made one claim for industrial disablement benefit.  Both the reasoning of the Tribunal of Commissioners and the commentary in Social Security Legislation 2008/09 must be seen in that very straightforward context.

 

56.       In the present case, of course, the claimant has had the misfortune to suffer more than one industrial accident – and, moreover, to contract more than one prescribed disease as well.  As a result, his various disablement assessments have been aggregated (in his case at 50 per cent).  Accordingly, even though Tribunal 4 found that there was no loss of faculty, with effect from 1 January 2005, from the foot injury sustained in the 1972 industrial accident, the claimant remained very much entitled to industrial disablement benefit, both before and after 2005, in respect of his other injury and diseases.

 

57.       In CI/420/1994 Mr Commissioner Rowland sought to explain the position as follows (at paragraph 5):

 

“It seems to me 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. It must follow that the award must be reviewed each time an assessment of disablement is made in respect of any further industrial accident or prescribed disease. If there were no aggregation then separate claims would be required in respect of each accident or disease and there would be separate awards.”

 

58.       The Commissioner added that he agreed that “a further claim for disablement pension in respect of a prescribed disease must be made in respect of any period not already covered by a decision in respect of disablement pension” (at paragraph 6).  The same Commissioner adopted the same analysis in CI/6872/1995.  In summary, therefore, Mr Commissioner Rowland’s conclusion was that the claim is for industrial disablement benefit and not for a particular accident.  It is true, of course, that both CI/420/1994 and CI/6872/1995 were decided under the pre-Social Security Act 1998 regime. The same approach might not necessarily apply under the current arrangements for deciding claims and appeals.

 

59.       In addition, however, in reported decision R(I) 4/03 Mr Commissioner Howell QC noted that section 107(1)(a) of the Social Security Contributions and Benefits Act 1992 had not been drawn to the attention of Mr Commissioner Rowland in CI/420/1994.  Mr Commissioner Howell QC concluded that it was therefore possible to have two or more concurrent entitlements (and so claims) to industrial disablement benefit for different accidents or diseases.  Accordingly, aggregation is possible but not mandatory in all cases (see also decision CI/12311/1996).

 

60.       On the actual facts of R(I) 4/03 the appellant had concurrent life awards in respect of four industrial accidents and one prescribed disease.  He then made a completely fresh claim for a different prescribed disease.  In ruling that this new claim should be treated as such, and not as an application for reconsideration of an earlier award, Mr Commissioner Howell QC made explicit reference to the practical consequences involved: “I do not therefore think what was said in CI/420/1994 should be taken as a ground for depriving claimants of the benefit of the normal prescribed time for claiming a new entitlement in the way that happened here” (at paragraph 34).

 

61.       In the present case the circumstances were materially different.  This was not a completely fresh claim for a different industrial accident or prescribed disease. The considerations as to time limits for claiming “a new entitlement” simply did not arise.  Rather, this was in reality an attempt to re-open previous decisions as to the connection between the 1972 accident and the foot problem.  On that basis, and notwithstanding R(I) 4/03, Mr Commissioner Rowland’s analysis in CI/420/1994 (at paragraph 57 above) still holds good today in the particular circumstances of the present case, with the substitution of the new terminology of supersession for the old language of review.  This approach is also consistent with that taken by Mr Commissioner Rowland in CI/954/2006.

 

62.       I therefore disagree with Mr Kendall’s reasoning. The claimant could not make a new claim for industrial disablement benefit in respect of the foot injury, as he already had an ongoing award of that benefit and he was not seeking to establish a new entitlement, but rather to reinstate a previous entitlement that had since been withdrawn.  It follows also that what he undoubtedly could do was to apply for a supersession of a decision in relation to his existing award of benefit.  So in my view the Secretary of State was right first time (and Tribunal 6 was right) to regard the claimant’s August 2008 BI 100A as an application for supersession of the last relevant decision in relation to his then current award of industrial disablement benefit.  It is important to focus on the substance rather than the form of the dispute.

 

63.       However, where I also part company from the Secretary of State in her original submission to the tribunal is in respect of the basis for that application.  The decision maker’s assumption was that the claimant had made his application because his condition had changed.  It is true that when examined by Dr Groves on 27 October 2008 the claimant stated that his condition had “got slightly worse about 1 yr ago”.  However, this would have been in the autumn of 2007, and so well before Tribunal 5 in June 2008, which was concerned with the previous supersession application made in October 2007.  Logically, therefore, any deterioration a year previously would have been considered by Tribunal 5.

 

64.       The reality is that the claimant was not arguing that his condition had deteriorated significantly since Tribunal 5 in June 2008.  Rather, he was arguing that Tribunal 5’s decision was based on a fundamental error – namely its failure to accept his argument that there was in fact a loss of faculty caused by the 1972 industrial accident.  In effect, therefore, he was also seeking to unpick the previous decisions of both Tribunal 4 and Tribunal 3.  As the claimant put it in a letter dated 10 November 2008, “both of them [Mr Bansal and Mr Jain] state categorically that my accident in 1972 was the sole condition of my present foot complaint”.

 

65.       So what was the legal basis for any challenge to the decision of Tribunal 5?  The claimant had applied unsuccessfully for Tribunal 5’s decision to be set aside.  He had applied unsuccessfully for permission to appeal, which had been refused both by District Chairman Moss and by the Commissioner.  Statute did not permit him to apply for a revision of the tribunal’s decision (see Social Security Act 1998, section 9).  Statute did, however, allow him to apply for a supersession of the tribunal’s decision (Social Security Act 1998, section 10), but only on one of the grounds set out in regulation 6(2) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (SI 1999/991).  In my view there were only two possible bases on which the claimant might seek a supersession.

 

66.       The first was on the basis that there had been a relevant change of circumstances since the decision of Tribunal 5 (regulation 6(2)(a)(i)). Was the evidence from Mr Bansal and Mr Jain a relevant change of circumstances?  It is a well established principle of social security law that the existence of a medical opinion which differs from some previous opinion does not in itself constitute a relevant change of circumstances (see e.g. Cooke v Secretary of State for Social Security [2001] EWCA Civ 734, also reported as R(DLA) 6/01).  Rather, there must be some underlying change in the person’s condition.  However, this was not the way in which the claimant put his case.  In any event, Tribunal 6 also found as a fact that it was “not possible to identify particular deterioration and change in the effects” of the foot injury since tribunal 5.  Accordingly, I do not see how regulation 6(2)(a)(i) could justify a supersession.

 

67.       The second argument was on the basis that the earlier appeal tribunal’s decision “was made in ignorance of, or was based upon a mistake as to, some material fact” (regulation 6(2)(c)(i)).  Tribunal 5 had had before it the extract from Mr Bansal’s report, which the claimant had enclosed with his 2007 supersession request.  True, Tribunal 5 did not have before it either the letter from the hospital’s Chief Executive (referring to what it understood to be Mr Bansal’s opinion) or the letter from the Healthcare Commission investigator (quoting from Mr Jain). It is hard to see how this further correspondence was in any way sufficient to show that Tribunal 5’s decision “was made in ignorance of, or was based upon a mistake as to, some material fact”. This is because the correspondence contained reports of expressions of opinion, not statements of material fact, as regards the nature of the injury and the origins of the claimant’s current foot condition.

 

68.       My conclusion is that Tribunal 6 was right to treat the matter as an appeal against a refusal to make a supersession decision.  The tribunal did not explore the grounds for any possible supersession under regulation 6(2) as thoroughly as it might have done, but in terms of the actual outcome it came to the only conclusion it reasonably could have done on the evidence before it.  Its decision does not disclose any material error of law.

 

The need for finality

 

69.       There is no dispute but that the claimant suffers from a painful foot (amongst other conditions).  There is a dispute as to whether that is attributable to the 1972 industrial accident or to other (e.g. degenerative) factors.  Only Tribunal 2 of the six tribunals that has considered this matter to date has found that there was a loss of faculty due to the 1972 industrial accident.  Tribunals 1 and 3 held that there was no relevant loss of faculty.  Tribunals 4, 5 and 6 have all held that there were no grounds for superseding the decision of the immediately preceding tribunal.

 

70.       The question then arises as to whether this process can continue indefinitely.  Can the claimant keep on applying for supersessions of the decision of the immediately preceding tribunal?

 

71.       The principle of finality should have a central place in any system of justice.  It is perhaps imperfectly embedded in the legislative framework for the social security system.  Section 17(1) of the Social Security Act 1998 provides in effect that decisions are final, but subject to appeals, revisions and supersessions.  That subsection re-enacts section 60(1) of the Social Security Administration Act 1992.

 

72.       Section 60(2) of the Social Security Administration Act 1992 provided that section 60(1) did not make any finding of fact or other determination necessary for a decision “conclusive for the purpose of any further decision”.  However, section 60(2) was not re-enacted in the 1998 Act. The authors of the commentary in Social Security Legislation 2009/10 (Volume 3, p.234) suggest that such an express statutory provision is unnecessary, and that “in the absence of any rule of evidence to the contrary, a person or body making a decision is entitled to rely on an earlier finding but is not bound to do so”.  I agree.

 

73.       Section 17(2) of the Social Security Act 1998 does enable regulations to be made providing that, in certain circumstances, findings of fact or other determinations shall be conclusive for the purposes of further decisions.  This power has not been widely used.  However, regulation 5(2) of the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985 (1967/967), as inserted by regulation 5 of the Social Security, Child Support and Tax Credits (Miscellaneous Amendments) Regulations 2005 (SI 2005/337), provides as follows:

 

“(2) Where a person claims benefit under Part V of the Contributions and Benefits Act and it is decided that he is not entitled on the basis of a finding that he was not suffering from a prescribed disease, the finding shall be conclusive for the purpose of a decision on a subsequent claim of that kind in respect of the same disease and the same person."

 

This provision was inserted in order to reverse (at least in part) the effect of the Commissioner’s decision in R(I) 5/04.

 

74.       However, regulation 5(2) only applies to findings that a person was not suffering from a particular prescribed disease.  It does not in terms apply to a finding that a person was not suffering from a loss of faculty as a result of an injury sustained in a particular industrial accident.

 

75.       However, the courts have recognised the importance of finality in the context of decisions made under the industrial injuries scheme (see e.g. Secretary of State for Work and Pensions v Whalley [2003] EWCA Civ 166, reported as R(I) 2/03).  As Schiemann LJ noted in that decision (at paragraph 42), the Human Rights Act 1998 does not give a right to re-litigate a question which has already been determined.  It certainly confers no right endlessly to re-litigate what is essentially the same question.

 

What does the future hold?

 

76.       The decision of Tribunal 6 stands.  There are therefore no grounds for superseding the decision of Tribunal 5, nor indeed for revisiting the decisions of Tribunal 4 and before that Tribunal 3.      

 

77.       Section 17(1) of the 1998 Act provides for only limited finality.  There is, of course, nothing to stop the claimant from launching a further supersession application to seek to overturn the decision of Tribunal 6.  Indeed, he may already have such proceedings in train, for all I know.  If so, the burden of proof rests on him to establish grounds for any such supersession.

 

78.       It may be that consideration should be given to a statutory amendment along the lines of regulation 5(2) of the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985, but for the purposes of industrial accidents.  There may well be further arguments for and against any such reform.

 

79.    What should happen if the claimant makes a further application for a supersession and the decision maker refuses to supersede?  In the absence of any such legislative changes as mentioned in the previous paragraph, the First-tier Tribunal should bear in mind its extended powers under the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (SI 2008/2685).  The tribunal has considerable case management powers under rule 5.  In the event of a further supersession application about the present matter, these could be used to require the claimant to specify in detail the precise grounds of the application, bearing in mind the criteria set out in regulation 6 of the 1999 Regulations.  The tribunal is also empowered to strike out a party’s case where a party fails to comply with any such directions (rule 8).

 

Conclusion

 

80.       I therefore dismiss the claimant’s appeal.  

 

 

 

 

 

 

 

 

Signed on the original                                              Nicholas Wikeley

on 19 October 2009                                                   Judge of the Upper Tribunal