Upper Tribunal (Administrative Appeals Chamber)

[2009] UKUT 39 (AAC) (17 February 2009)
Main Category: Industrial diseases

THE UPPER TRIBUNAL Case No: CSI/541/08

ADMINISTRATIVE APPEALS CHAMBER

Appellant:

Respondent:

DECISION OF THE UPPER TRIBUNAL A J GAMBLE JUDGE OF THE UPPER TRIBUNAL

ON APPEAL FROM: Appeal tribunal

Tribunal Case No: 091/08/00795

Tribunal Venue: Edinburgh

Hearing Date: 10 April 2008


 


THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

DECISION OF THE UPPER TRIBUNAL JUDGE

The claimant's appeal is allowed.

The decision of the Edinburgh appeal tribunal of 10 April 2008 is erroneous in law. It is set aside.

The case is referred to a freshly constituted First-tier tribunal of the Social Entitlement Chamber for redetermination in accordance with the directions in paragraph 10 of the Reasons.

REASONS FOR DECISION
1. The claimant is a man now aged forty eight. He worked as a miner from 1977 to 1989.
2. On 3 October 2007, the claimant applied for Industrial Injuries Disablement Benefit for Prescribed Disease A11 (Vibration White Finger), claiming that he had suffered from that Prescribed Disease since 1988.
3. The claimant had previously applied for the above benefit for Prescribed Disease A11 on 17 February 1999. That Prescribed Disease was not diagnosed in respect of the claimant on that occasion. He appealed against the decision to that effect, dated 30 April 1999, but later withdrew his appeal.
4. The claimant was medically examined, in connection with his claim made on 3 October 2007, on 11 December 2007. The departmental medical adviser considered that Prescribed Disease A11 could not be diagnosed. On 3 January 2008, a decision maker accepted that advice and held that the claimant was not suffering from the above Prescribed Disease.
5. The claimant appealed against the decision maker's decision. That decision was reconsidered but left unaltered. The appeal was disallowed by the Edinburgh Appeal Tribunal of 10 April 2008.
6. The claimant now appeals with leave of the tribunal chairman. His appeal was automatically transferred to the Upper Tribunal (Administrative Appeals Chamber) on 3 November 2008. The Secretary of State supports the claimant's appeal, at least in part, in his written submissions. On 14 January 2009, I directed the Secretary of State to lodge a further Submission, clarifying his position on an important aspect of the case. A Supplementary Submission was lodged in response to that direction. I direct that no reply to that Supplementary Submission is required from the claimant's representative.
7. As narrated in paragraph 2 above, the claimant applied for Industrial Injuries Disablement Benefit on 3 October 2007. The statutory definition of Prescribed Disease A11 had, at that point, been altered by legislative changes which took effect from 1 October 2007. Those changes were made by the Industrial Injuries (Prescribed Diseases) Amendment (No.2) Regulations 2007. In particular, Regulation 2 of those Regulations inserted a new statutory definition of Prescribed Disease A11 into the lefthand column of Schedule 1 to the Industrial Injuries (Prescribed Diseases) Regulations 1985. The new definition differs from the one formerly in force in two respects. Firstly, it amends the degree of blanching or vascular effects required to establish a diagnosis of that prescribed disease. Secondly, it provides a new alternative route to its diagnosis i.e. by establishing the presence of certain defined sensorineural effects. Regulation 3 of those Regulations is a transitional provision. Its effect is to maintain in force the former definition of the blanching required to establish a diagnosis of Prescribed Disease A11 in the case of those claimants who are covered by it. I fully accept the detailed and helpful submission to that effect made on behalf of the Secretary of State in Paragraph 3 of Document 125, part of the Supplementary Submission referred to in paragraph 6 above. Regulation 3(1)(a)(ii) of the above Regulations clearly covers the claimant's situation. His claim was made within 3 months after 1 October 2007 and it was in respect of a period which began before that date. The practical effect is that the claimant is covered, in the alternative, by the former provisions on blanching and by the new sensorineural provisions. He is not, however, covered by the new blanching provisions. The tribunal did not err in law by holding that it was appropriate to apply the transitional provision to the claimant as well as the new sensorineural provisions. However, it is not clear from their Statement of Reasons whether they were applying the old or the new blanching provisions to him. In that regard, they erred in law. The main thrust of Regulation 3 of the above Regulations is that the new blanching provisions, laid down by Regulation 2 of those Regulations, "shall not apply" to those claimants who are covered by it. It was thus important for the tribunal to make clear which blanching provisions they were applying. Their failure to do so involved an error of law.
8. The claimant's representative submitted a medical report which had been obtained in connection with a civil claim for hand arm vibration (Documents 57-72) to the tribunal. The tribunal made a further mistake of law in insufficiently explaining what they made of that report. Clearly, from the claimant's point of view, it represented significant and favourable evidence. The tribunal did not adequately explain why they rejected it. It was incumbent on them to do so. I agree with the Submissions made on behalf of the Secretary of State to that effect in paragraphs 20-21 of Document 121.
9. The mistakes of law identified in paragraph 7-8 above require the setting aside of the tribunal's decision. It is not appropriate for me to remake it myself given the matters at issue in these proceedings. To decide them requires specialist medical expertise as well as legal expertise. I thus refer the case to a freshly constituted First-tier tribunal for reconsideration in accordance with the directions in paragraph 10 below.
10. The new tribunal should proceed as follows:

(a) They should consider whether Prescribed Disease A11 should be diagnosed in the case of the claimant. They should do that by, first of all, applying to him the former blanching criteria, not, the new blanching criteria. If he does not satisfy the former blanching criteria, they should then apply to him the new sensorineural criteria.

(b) If they do diagnose Prescribed Disease A11, they should fix the date of onset. The issue of diagnosis was decided against the claimant's interest by a decision of 30 April 1999, obviously taken prior to 5 July 1999 when the system of adjudication established by the Social Security Act 1998 came into force in regard to Industrial Injuries and Diseases. That decision, taken under the former adjudication regime, has the status of finality. In other words, the earliest date of onset which they can fix is 1 May 1999 even if they consider that the actual date of onset was earlier than that date.

(c) Again, if they diagnose Prescribed Disease A11 they should go on to identify the relevant loss of faculty suffered by the claimant and to assess the resulting disablement. They should make that assessment by comparing him with a man of the same age whose physical and mental condition is normal. That assessment should take account of the sensory effects of Prescribed Disease A11, even if they have based their diagnosis upon the former vascular criteria. Any assessment of disablement should run from the ninetieth day after the date of onset.

(d) In general, the new tribunal should apply their expert medical knowledge and experience to all of the evidence including the results of any clinical examination of the claimant which they may, with his consent, conduct.

(e) In the event that the tribunal judge chairing the new tribunal is required to write a statement of its reasons he should be careful in so doing to show that the tribunal have properly compared any competing medical evidence for its relevance and reliability, having regard to its source.

11. The claimant's appeal thus succeeds. He should, however, draw no necessary inference as to his eventual success on the merits. Those will be determined by the new tribunal applying the directions in paragraph 10 above.

(Signed)

A J GAMBLE

Judge of the Upper Tribunal

Date: 16 February 2009