Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No. CI/2992/2009

ADMINISTRATIVE APPEALS CHAMBER

 

1. This is an appeal by the Claimant, brought with my permission, against a decision of a First-tier Tribunal sitting at Newcastle-upon-Tyne on 15 January 2009. For the reasons set out below that decision was in my judgment wrong in law. I allow the appeal, set aside the First-tier Tribunal’s decision and remit the matter for redetermination by an entirely differently constituted First-tier Tribunal. I direct that within 21 days of a decision in relation to the supersession issues referred to in paragraphs 21 to 26 below, and in any event within 6 weeks from the date of issue of this Decision, the Secretary of State is to send to the Tribunals Service (first tier) a further written submission updating the tribunal in relation to those issues.

 

2. The Claimant is a man now aged 63. He worked in the mining industry between 1961 and 1993, using power tools.

 

3. On 18 July 1994 he made a claim for industrial injuries disablement benefit (IIDB) in respect of prescribed disease A11 (vibration white finger). He stated in the claim form that his disablement had begun on 1 January 1985.

 

4. On 25 October 2004 the Claimant was medically examined in connection with his claim. The Claimant signed a statement, recorded by the doctor at the examination, which included the following:

 

“In 1985 I began to notice pains in my hands and difficulty picking up small objects. The fingers go pale white in really cold weather, mainly in the winter. The colour returns when they warm up again.”

 

5. The doctor’s clinical findings included the following: “hands cool in warm room. Backs of hands and fingers are pale. Palms are pink. Capillary return normal. Impaired sensation flexor surfaces fingers [?RSL]. Impaired manual dexterity right hand. ….Firm grip.” The first question on the medical report form in the section headed “Opinion” was: “If there is any evidence of vibration white finger please show the areas affected by blanching.” On the printed diagram of the hands on the medical report form, the doctor appears to have indicated, in answer to that question, that the following areas of the Claimant’s hands were affected by blanching: as regards the right hand, all three phalanges of the index, middle and ring fingers, both front and back; as regards the left hand, all three phalanges of the index and middle fingers, but only on the back.

 

6. The doctor left blank the box opposite the question “On what date did the claimant first suffer from the disease?” Then in the section headed “Reasons for opinion” the doctor wrote:

 

“His main problem is pain in the hands and difficulty in gripping and fine work. History and examination do not support diagnosis of PD A11”.

 

7. On 1 November 1994 a decision was made that from and including 1 January 1985 the Claimant had not been suffering from prescribed disease A11. The Claimant did not appeal against that decision.

 

8. On 28 November 2000 the Claimant had an examination in connection with a claim against British Coal for hand arm vibration syndrome. A copy of that report is in the papers. The doctor advised that he had a vascular staging score of 3V (“frequent attacks of whiteness affecting all of the phalanges of most of the fingers …..”)

 

9. As from 1 October 2007 there was a change in the statutory definition of vibration white finger.

 

10. On 4 December 2007 the Claimant made claims for IIDB and reduced earnings allowance (REA). Only the IIDB claim form is in the papers. In that claim he claimed a date of onset of 1 January 1978 (p.20), if I am reading his handwriting correctly.

 

11. The Claimant had a further medical examination in connection with those claims on 29 January 2008. The doctor advised that the Claimant did have vibration white finger, and identified the factors supporting the diagnosis as “episodic blanching of fingers.” He initially advised that the Claimant first suffered from the disease from 1 January 1979, and that the appropriate degree of disablement was 7% “from the 91^st day”, final for life.

 

12. However, it seems then to have been pointed out to the doctor, by the Secretary of State, that there had been an adverse decision on diagnosis on 1 November 2004. The doctor then amended his report so that it read that the Claimant first suffered from vibration white finger on 2 November 2004, and that the 7% disablement ran from that date.

 

13. On 18 February 2008 a decision was made that the Claimant was not entitled to IIDB, because the degree of disablement was less than 14%. On 7 March 2008 a decision was made that the Claimant was not entitled to REA, because the date of onset was after 1 October 1990.

 

14. On 26 March 2008 the Claimant appealed against those two decisions. The appeal against the IIDB decision was late, but was apparently accepted out of time.

 

15. The appeal before the First-tier Tribunal, and the appeal to me, were nominally only the appeal against the IIDB decision.

 

16. The Secretary of State’s submission to the First-tier Tribunal included the following:

“The decision dated 1 November 2004 was given pre DMA it carries finality in relation to the diagnosis question and date of onset, unless there are grounds to supersede it. A change of medical opinion does not of itself provide grounds for supersession and there does not appear to be any previously unknown fact which has come to light at the examination of 29 January 2008 which would lead to a supersession of the decision of 1 November 2004.”

 

However, the Secretary of State has helpfully confirmed, in the present appeal, that was no formal decision on the issue whether the decision of 1 November 2004 could and ought to be superseded.

 

17. On 31 July 2008 the Tribunal allowed the Claimant’s appeal, finding that the appropriate date of onset was 1 January 1985. The Tribunal held that the negative diagnosis decision of 1 November 2004 did not have continuing effect in relation to a fresh claim made under the post 1998 legislation. The Tribunal relied on reg. 6(1) of the Social Security (Prescribed Diseases) Regulations 1985 and R(I) 5/04.

 

18. The Secretary of State sought permission to appeal to the Upper Tribunal against the First-tier Tribunal’s decision. On 15 January 2009 a Tribunal Judge in substance set the Tribunal’s decision of 31 July 2008 aside as wrong in law and substituted a decision that the date of onset was 2 November 2004, with the assessment of disablement to run from the 91^st day after that date.

 

19. The Claimant now appeals, with my permission, against the decision of the First-tier Tribunal as re-made on 15 January 2009.

 

20. In my judgment it is clear that so long as it remained on foot the decision of 1 November 1994 that the Claimant was not suffering from vibration white finger remained binding after the coming into effect (on 5 July 1999) of the new adjudication machinery under the Social Security Act 1998 so as to prevent the making of a later decision that the Claimant did have vibration white finger before 2 November 2004. That would therefore prevent the claim for REA succeeding, because there must be a date of onset before 1 October 1990. That is in my judgment clear from para. 14 of R(I) 5/04, and in particular the following words:

 

“….there was and is no jurisdiction before or after 5 July 1999 for the later tribunal to reopen any question of diagnosis or presence of the disease for the period already covered by the decision made final and binding by the legislation in force when it was given.”

 

21. However, the Secretary of State supports the appeal on the footing that the First-tier Tribunal erred in law in not at least considering whether the appeal should be adjourned to give the Claimant the opportunity to apply for supersession of the decision of 1 November 1994, or to have his December 2007 claims for IIDB and REA treated as implicitly also comprising an application for such a supersession. The Secretary of State therefore supports the First-tier Tribunal’s decision being set aside on that ground and the matter being remitted for redetermination by a fresh first-tier tribunal.

 

22. The Secretary of State accepts that if the decision of 1 November 1994 were now to be superseded and replaced with a decision that the Claimant was suffering from VWF from a date before 1 October 1990 there would then be nothing to preclude a new first-tier tribunal finding (and indeed it would then be bound to find), on the appeals before it, that the date of onset was some date before 1 October 1990. That in my judgment appears from what Mr Commissioner (as he then was) Rowland said in para. 19 of R(I) 2/04. The only distinctions between the facts of that case and the facts of this case were (a) that in that case the first decision was a decision that the claimant did have VWF, but with a date of onset after 1 October 1990 and (b) that the first decision was one made after 5 July 1999. However, neither of those distinctions seem to me to be material, so far as the potential effect of a supersession of the first decision, so as to substitute a different date of onset, is concerned.

 

23. There would of course be no point in remitting the matter to a new tribunal if the only decision which the Secretary of State could make, in response to an application for supersession, were to refuse it on the footing that no ground for supersession was established. The only potential grounds are that the decision maker who made the decision of 1 November 2004 was (a) ignorant of or mistaken as to a material fact or (b) in error of law: see reg. 6(2)(b)(i) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999.

 

24. That decision maker seems clearly to have simply accepted the opinion of the examining doctor. Although it is strictly the decision maker, not the doctor, who must have been mistaken or ignorant as to fact, or in error of law, the acceptance by the decision maker of the doctor’s opinion seems to me to take one back to whether the doctor was mistaken or ignorant as to a material fact, or in error of law. It is not clear to me why that examining doctor, having recorded the clinical findings and noted the Claimant’s evidence which I referred to in paras. 4 and 5 above, gave the advice that the Claimant did not have vibration white finger. He recorded blanching on both sides of the necessary number of fingers, to the required extent, on both hands. Ignorance or mistake as a material fact means ignorance or mistake as to some primary fact. It is not enough that a later decision maker draws a different conclusion from those primary facts. As was said in R(I) 3/75:

 

“He [the claimant] must go further and assert and prove that the inference might not have been drawn, if the determining authority had not been ignorant of some specific fact of which it could have been aware, or had not been mistaken as to some specific fact which it took into consideration.”

 

25. However, it seems to me that this (i.e. the question whether there is likely to have been ignorance or mistake as to a material fact, or error of law, by the 1994 examining doctor, and therefore decision maker) is a matter on which the Secretary of State, and if necessary a tribunal on appeal, will have greater expertise than I do. They are more likely to be able to discern why the 1994 doctor advised as he did, and whether there was any error of fact or of law. It would therefore be wrong for me to hold that there would have been no point in the First-tier Tribunal adjourning for an application for supersession to be considered because such an application could not have succeeded.

 

26. The question arises whether it is necessary for the Claimant now to make an application for supersession, or whether he should be treated as having made one at some time in the past. If a supersession decision is made, that question would affect its effective date (and thus the date of commencement of REA, if it is awarded). It does not seem to me that the 2007 claim form for IIDB amounted to an application for supersession, and I doubt whether the REA claim form did so either (as I have said, it is not in the papers). However, it is very arguable that the appeal by the Claimant (p.6), in which he disagreed with the date of onset, did so.

 

27. It may be that the Secretary of State could have argued that a supersession now of the decision of 1 November 2004 could make no difference to the current appeal, because the supersession would be a circumstance arising after the decisions of 18 February and 26 March 2008 under appeal to the First-tier Tribunal: section 12(8)(b) of the Social Security Act 1998; and see the way in which Mr Commissioner Howell put the matter in para. 14 of R(I) 5/04. However, if that approach were taken, it seems to me that the Claimant’s appeals against the 2008 decisions refusing IIDB and REA would have to be taken as not only applications for supersession, but also new claims, and there would therefore have been no advantage to the Secretary of State, in terms of the commencement date of an award of REA, in taking this line. The only effect would be to necessitate the taking of further decisions and appeals, resulting in further unnecessary delay and paperwork. I do not therefore propose to take the point myself. It was a point which, if valid, could equally have been taken in R (I) 2/04.

 

28. I therefore propose to set aside the First-tier Tribunal’s decision as wrong in law, on the ground that the Tribunal did not adjourn the hearing of 31 July 2008 so that a decision on the supersession issue could be made by the Secretary of State. The Secretary of State will then consider (i) whether to accept that the Claimant’s appeal form received on 26 March 2008 (p.6) amounted to an application for supersession of the decision of 1 November 1994 and (ii) whether that decision should be superseded.

 

29. If the decision of 1 November 1994 is superseded so as to substitute a date of onset before 1 October 1990, the new tribunal will then presumably allow the REA appeal and remit the REA matter to the Secretary of State for determination of the other matters which arise in relation to REA entitlement.

 

30. If the decision of 1 November 1994 is not superseded by the Secretary of State, the Claimant would have a right of appeal against that refusal. That appeal, if made, could then usefully be determined at the same time as the appeals which I am remitting. The supersession issue would then in effect be the only significant issue in the appeals.

 

31. I therefore make the decision set out in para. 1 above.

 

 

 

 

Charles Turnbull

Judge of the Upper Tribunal

10 May 2010