DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

 

 

The DECISION of the Upper Tribunal is to allow the appeal by the appellant.

 

The decision of the Nottingham First-tier Tribunal dated 24 September 2009 under file reference 045/09/02040 involves an error on a point of law and is set aside.

 

The Upper Tribunal is not in a position to re-make the decision under appeal. It therefore follows that the appellant’s appeal against the Secretary of State’s decision dated 21 July 2009 is remitted to be re-heard by a different First-tier Tribunal, subject to the Directions below.

 

This decision is given under section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007.

 

 

DIRECTIONS

 

The following directions apply to the re-hearing:

 

(1) The re-hearing will be at an oral hearing.

 

(2) The new tribunal should not involve the tribunal judge and medical member who comprised the tribunal considering this appeal at the hearing on 24 September 2009.

 

(3) A copy of the written submission to the Upper Tribunal dated 27 April 2010 by Mr D Kendall, on behalf of the Secretary of State (pages 43-69 of the Upper Tribunal bundle), should be included in the papers for the First-tier Tribunal that rehears this appeal.

 

(4) The new tribunal must make findings of fact as to the actual nature of the appellant’s work at all material times and further make findings as to whether that work fell within the terms of any prescribed occupation(s), taking into account the guidance in this decision;

 

(5) The new tribunal must consider all the evidence afresh and is not bound in any way by the decision of the previous tribunal. Depending on the findings of fact it makes, the new tribunal may reach the same or a different outcome to the previous tribunal.

 

These directions are all subject to any later directions by a Tribunal Judge in the Social Entitlement Chamber of the First-tier Tribunal.

REASONS FOR DECISION

 

The issue in this appeal

 

1. This appeal concerns the prescription test for the (relatively) new prescribed disease of osteoarthritis in the knee in coal miners, also known as Prescribed Disease (PD) A14.

 

2. In broad terms, a person satisfies the prescription test for PD A14 if he has worked in certain occupations underground in a coal mine for at least 10 years. The prescription test is different for employment before and on or after January 1, 1986 respectively. The claimant, who qualified as an electrician, worked in coal mines from 1980 until 1991. It does not appear to be in dispute that he worked underground for at least 10 years. The question is whether or not he worked in any of the relevant prescribed occupations.

 

3. The claimant and the Secretary of State’s representative are agreed that the First-tier Tribunal which heard the claimant’s appeal in Nottingham made an error of law and the case needs to be re-heard. In normal circumstances that might justify the appeal to the Upper Tribunal being dealt with by way of a short remittal decision with summary reasons.

 

4. However, I am aware that this appeal may well have a much wider significance beyond that of the claimant’s own case, important though that is for him. By all accounts there have been more than 40,000 claims for industrial disablement benefit on the basis of PD A14 within the last year, which are likely in turn to generate a substantial number of appeals. These appeals will often turn on medical issues, such as the definition of osteoarthritis of the knee and the assessment of the consequential degree of disablement, which do not arise in the present proceedings. However, a significant number of appeals may depend on the terms of the prescription test for PD A14. It is therefore appropriate for the Upper Tribunal to provide some initial guidance on the interpretation and application of the relevant rules. The terms of the new prescribed disease need to be considered first.

 

Osteoarthritis in the knee in miners (PD A14)

 

5. Osteoarthritis in the knee in miners (PD A14) was first prescribed for the purposes of the industrial injuries scheme by the Social Security (Industrial Injuries) (Prescribed Diseases) Amendment Regulations 2009 (SI 2009/1396). These regulations amended Part I of Schedule 1 to the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985 (SI 1985/967, “the 1985 Regulations”) by adding the following entry:

 

Prescribed disease or injury		Occupation
“A14	Osteoarthritis of the knee.	Work underground in a coal mine for a period of, or periods which amount in aggregate to, at least 10 years in any one or more of the following occupations:
			(a)	before 1st January 1986 as a coal miner; or
			(b)	on or after 1st January 1986 as a—
				(i)	face worker working on a non-mechanised coal face;
				(ii)	development worker;
				(iii)	face-salvage worker;
				(iv)	conveyor belt cleaner; or
				(v)	conveyor belt attendant.
		‘A non-mechanised coal face’ means a coal face without either powered roof supports or a power loader machine which simultaneously cuts and loads the coal or without both.”

 

6. The new provision came into effect on July 13, 2009. This means that, assuming the relevant criteria are satisfied, a claimant can only be paid industrial disablement benefit for PD A14 with effect from July 13, 2009 at the earliest, regardless of how many years he has suffered from osteoarthritis in the knee. This is shown by the decision of Mr Commissioner Goodman in CI/414/1994, holding that industrial disablement benefit for a new prescribed disease cannot be paid for any day prior to the coming into operation of the statutory instrument that prescribes that disease (in that case PD D12, chronic bronchitis or emphysema in coal miners).

 

7. The prescription of PD A14 followed a report from the Industrial Injuries Advisory Council (“IIAC”), an independent expert body which advises the Secretary of State, entitled Osteoarthritis in the knee in coal miners (Cm 7440, August 2008). It is well established that the courts and tribunals can have regard to relevant IIAC reports as an aid to construction where legislation has been enacted to implement a recommendation in the report (see e.g. R(I) 15/75, at paragraphs 15 and 16; see also CI/5331/2002 at paragraph 12 and most recently Secretary of State for Work and Pensions v CS (II) [2010] UKUT 198 (AAC) at paragraph 26). The IIAC report is a detailed 20-page review of the medical and scientific evidence relating to osteoarthritis of the knee in coal miners with various conclusions and recommendations. The IIAC report was summarised in the Explanatory Memorandum to the 2009 amending regulations in the following terms (at paragraph 7.4):

 

“IIAC found that up until the mid 1980s, all underground coal miners had jobs involving prolonged kneeling and squatting under heavy loads. Those conditions would have persisted from the mid 1980s onwards only for certain occupational categories of miners. IIAC held that osteoarthritis of the knee in coal miners, who worked underground for at least 10 years, could be attributed to the nature of their occupation and recommended that the disease be added to the list of prescribed diseases.”

 

8. The IIAC report itself had recommended (at p.20) that osteoarthritis in the knee in coal miners be prescribed in the following terms:

 

 

“Prescribed Occupation

disease

 

A14 Work for ten years or more in aggregate in any

Osteoarthritis combination of the following coal mining

of the knee occupations:

 

(a) Before 1986, as an underground coal miner; or

(b) After 1985, as:

(i) a faceworker working non-mechanised

coal faces; or

(ii) a development worker or conveyor belt

cleaner or attendant.

 

A non-mechanised coal face is a face with neither powered roof supports nor a power loader machine which simultaneously cuts and loads the coal.”

 

9. It will be obvious that the final prescription test as it appears in the legislation (see paragraph 5 above) is not in precisely the same terms as the IIAC recommendation. However, most of the drafting changes appear to be designed with an eye to clarification and precision, rather than any change in substance (e.g. the IIAC report refers to work “before 1986” and “after 1985”, while the new entry in the Schedule refers to work before January 1, 1986 or on or after that date). There appears to be one possibly material change – the statutory test refers to a “face-salvage worker” as a relevant post-January 1, 1986 occupation, a category which did not appear on the face of the IIAC recommendation. However, it appears that IIAC had subsumed face-salvage workers within the general category of face workers (see paragraph 56 of their report), and I return to this point below (at paragraphs 57-58).

 

The background to the present appeal

 

10. In the present case the claimant was employed in a number of collieries in the East Midlands. He had previously made a claim for industrial disablement benefit on the basis of PD A11 (vibration white finger) in 2005. In answer to a request for information at the time from the Department for Work and Pensions, the Coalboard Enquiry Service (CES) had reported that the appellant’s “job” was that of “electrician”. Further, when asked to give a brief description of his job, the CES stated: “21.7.80 – 21.7.84 apprentice electrician; 22.7.84 – 9.2.91 U/G [underground] and coalface electrician.”

 

11. In 2009 the claimant made a further claim for industrial disablement benefit on the basis of PD A14, describing his job as “underground face electrician”. On the basis of the information provided by CES in 2005, the Secretary of State’s decision maker concluded that the prescription test for PD A14 was not satisfied. The claimant appealed, his principal ground being that “I was employed for more than 10 years although not all before 1-1-86; I confirm that after the 1-1-86 I was involved in face salvage and development work”.

 

12. The decision maker’s written submission to the First-tier Tribunal was to the effect that an “underground face electrician” was not a relevant occupation prescribed for the purposes of PD A14. The claimant’s oral evidence to the tribunal was that he was a “Class 1 electrician – same grade as face worker”. He added that “I was always employed as an electrician, but work varied – e.g. if working in a development area, I would have to crawl on knees just as development workers”. He later said that he was “classed as a face electrician”, which seems to be confirmed by the CES response.

 

13. The First-tier Tribunal’s decision was to dismiss the claimant’s appeal and to confirm the Secretary of State’s decision disallowing the PD A14 claim. The tribunal accepted that part of the claimant’s work prior to January 1, 1986 “may well have counted” for the purposes of the prescription test, but without deciding the point. However, the tribunal concluded that:

 

“The regulations stipulate that after 01.01.86 a claimant must have worked, for example, as a face worker rather than working in the same conditions as a face worker. If Parliament had intended to include other occupations which were subject to similar working conditions as those occupations set out in the regulations, it would have been easy to make that clear. The determining factor therefore is the occupation, which was carried out by a claimant, and in this case there is no dispute as the appellant clearly accepts that at all times the work he did was as an electrician” (original emphasis).

 

14. Whilst expressing sympathy with the claimant’s position, the tribunal concluded that as his occupation was that of an electrician, his work after January 1, 1986 “does not count towards the ten-year qualifying period”.

 

The proceedings before the Upper Tribunal

 

15. The claimant set out his grounds of appeal very clearly. He argued that his employment after January 1, 1986 should have been counted

 

“…as I was employed in the work areas specified, i.e. development worker and face salvage worker. We were all miners carrying out work of different descriptions in these locations. The terms development worker or face salvage worker simply means the areas in which your duties were carried out, the same as a face worker describes someone carrying out their duties on a face.”

 

He further explained that as an electrician he held a technical qualification authorising him to undertake particular specialist functions. However, he added that “Other people employed in these locations would have been machine drivers, fitters, chock fitters etc. but the term development worker or face salvage worker is a broad term to cover people working in these different areas of which I was one”.

 

16. The claimant cogently summarised his grounds of appeal in the following terms: “I believe the tribunal has disallowed my appeal by taking my title i.e. an Electrician rather than the broader description I fitted into i.e. development worker or salvage worker. Everyone employed below ground would have had unique titles but could fit into the broader categories the law defines.”

 

17. Mr David Kendall, the Secretary of State’s representative now acting in this appeal, has made a detailed and helpful submission to the Upper Tribunal supporting the claimant’s appeal and referring to the IIAC report. In short, his argument is that the tribunal erred in law by not explaining clearly enough why the claimant’s occupation as an electrician did not fall within the definition of “coal miner” before January 1, 1986 or, after that date, within the terms of the occupations of “face worker…development worker or face-salvage worker”.

 

18. I agree with that analysis, as a result of which I set aside the tribunal’s decision as involving an error of law (Tribunals, Courts and Enforcement Act 2007, section 12(2)(a)). I remit the case for re-hearing by a new First-tier Tribunal subject to the Directions above (section 12(2)(b)(i)). The new tribunal should also bear in mind the more detailed guidance that follows below.

 

 

 

 

The proper approach to the interpretation of the relevant “occupation” in the Schedule to the 1985 Regulations

 

19. It is important not to lose sight of the fact that PD A14 is just one of over 60 occupational diseases which are prescribed under the Schedule to the 1985 Regulations. Each prescribed disease has its own occupational test. Some occupations are expressed in rather general terms (e.g. those involving “exposure to benzene” for PD C7, acute non-lymphatic leukaemia), others in very detailed terms (e.g. the specific occupations listed in respect of PD A10, occupational deafness).

 

20. Clearly the particular statutory language used in the prescription test for the particular disease must be the starting point. However, the former National Insurance Commissioners and later the Social Security Commissioners, whose appellate functions have now been subsumed within those of the Upper Tribunal, have stressed the importance of adopting a purposive interpretation of the statutory language.

 

21. For example, in Commissioner’s decision R(I) 3/78 the claimant had worked in a steel plant. He claimed industrial disablement benefit for occupational deafness, on the basis that he had been working for 20 years in “any occupation involving… work wholly or mainly in the vicinity of drop-forging plant”. He had spent nearly 14 years working as a “hot examiner” in the drop-forge shop, followed by just over 6 years partly as a hot examiner (40 per cent of his time) but mostly as a “salvage and forge examiner” (60 per cent of his time); but he was only in the immediate vicinity of the drop-forge plant for about 25 per cent of his working time in the latter capacity.

 

22. Mr Commissioner Magnus held that the claimant in R(I) 3/78 met the statutory prescription test as, in all, he had been working in the relevant occupation for about 55 per cent of his time over the 20 year period concerned. In doing so, the Commissioner emphasised that the term “any occupation” is not a term of art. Rather, it is used “to connote the activities in which an employed earner engages under his contract of employment” (paragraph 8). In the light of the authorities that follow, the emphasis in that phrase should perhaps be on the nature of the activities rather than on the precise terms of the contract of employment. The Commissioner also observed as follows:

 

“In particular, the fact that the workforce employed in the business is designated, classified or graded by reference to function, training or skills (e.g. labourer, hot examiner, salvage and forge examiner) does not of itself justify a conclusion that each separate designation, classification or grading involves a separate occupation” (at paragraph 8).

 

23. In a subsequent decision of a Tribunal of three Commissioners, R(I) 2/79, which also concerned the computation of the 20-year period for occupational deafness claims, the Tribunal of Commissioners stressed that “the focus of the regulations is directed to the work done rather than to the contractual obligation to do it” (at paragraph 15). This was described as “the ‘actual working’ test as opposed to the contractual obligation test” (at paragraph 16).

 

24. More recently, the Court of Appeal has considered the general approach to the interpretation of the Schedule to what are now the 1985 Regulations in Secretary of State for Social Security v Davis [2001] EWCA Civ 105, also reported as R(I) 2/01. The particular issue there was whether a city council employee using a chain saw on a daily basis in city parks was employed in an occupation involving “the use of chain saws in forestry” (emphasis added) for the purposes of PD A11 (vibration white finger). The fact that the particular prescription test has since been amended does not affect the general principle as stated by the Court of Appeal.

 

25. Rix L.J., giving the leading judgment of the Court of Appeal, set out the general approach to be followed in these terms:

 

“23. It seems to me that while the words ‘in forestry’ in the statutory phrase are plainly intended as some form of limitation, it would be wrong to give to those words too narrow a definition when one considers the purpose of the statute, which was to provide compensation for those who suffered the prescribed disease as result of their occupation. There is great danger that, if too narrow a definition is adopted, then the very persons who fall within the purpose of the statutory protection would fall outside the definition…”

 

26. In a short concurring judgment, Mummery L.J. expressly agreed (at paragraph 35) with the following observation of Mr Commissioner Levenson (as he then was) in CI/729/1998, the actual decision under appeal in Davis:

 

“The Industrial Injuries Disablement Benefits Scheme was designed to compensate workers for industrial injuries and for contracting prescribed diseases, and the definitions of prescribed occupations should not be artificially narrowed. I do not see why a person doing essentially the same job in a city as is being done by a person in a forest should be denied that compensation. This appeal by the adjudication officer does not succeed.”

 

27. In Secretary of State for Social Security v Davis the Court of Appeal had been required to resolve two conflicting lines of authorities in the decisions of the Social Security Commissioners. Some had given the phrase “in forestry” a broad meaning, others a narrow construction. The Court of Appeal endorsed the wider meaning, adopting a purposive interpretation of the statutory language. The Court faced a similar task in Janicki v Secretary of State for Social Security, also reported as R(I) 1/01, where the issue was the meaning of the term “hand-held vibrating tool” in the context of the test for PD A12. According to Jacob J., as he then was, giving the leading judgment:

 

“… the true solution is to be found by thinking about the fact that what is prescribed is an occupation. You are looking at what the individual is doing. If what he or she does is to use a tool which is hand-held and vibrates then it is a hand-held vibrating tool within the meaning of the regulation.”

 

28. Again, the fact that the particular statutory criteria for PD A12 have since been amended does not affect the underlying principle, namely that in applying the prescription test, as Jacob J. explained, “You are looking at what the individual is doing.” This dictum plainly affirms the approach taken by the Commissioners in R(I) 3/78 and R(I) 2/79.

 

29. This principle has also since been applied in a number of further decisions of the Social Security Commissioners. In CI/2668/2002 Mr Commissioner Williams, as he then was, emphasised that the approach of the Court of Appeal in Secretary of State for Social Security v Davis could not be confined to issues about the meaning of “in forestry”. The central question in the application of the prescription test “should be on what the claimant actually did” (at paragraph 9); thus the tribunal must “focus on what the claimant does, not what his job is labelled” (at paragraph 18). Although some of the other reasoning in CI/2668/2002 was subsequently questioned by Mr Commissioner Rowland in CI/5331/2002, that particular aspect of the reasoning was not. In CI/207/2004 Mr Commissioner Williams also accepted that just as the Court of Appeal had held in Davis that the scope of the industrial scheme should not be “artificially narrowed”, so too it should not be “artificially widened”. The Commissioner continued (at paragraph 14):

 

“In avoiding both, the Court of Appeal took the view I have followed above that interpretation should be by looking at the prescription as a whole, rather than by isolating individual words within it. The question to be decided is therefore whether what the claimant actually did in his work came within the proper meaning of the words of category (c) for prescribed disease A11.”

 

30. With those principles in mind, I now return to the prescription test for PD A14 and the context of this particular appeal.

 

The period before January 1, 1986: paragraph (a) of prescribed disease A14

 

Introduction

 

31. The statutory test in paragraph (a) of prescribed disease A14 requires one to ask first whether the claimant’s occupation involved “work underground in a coal mine for a period of, or periods which amount in aggregate to, at least 10 years… before 1st January 1986 as a coal miner”.

 

32. The tribunal in the present case did not deal with this point in any great detail. This is presumably because the tribunal’s conclusion that the post-January 1, 1986 employment “did not count” meant that it took the view that there was little point in addressing the earlier period in any detail, as the period concerned was less than six years. The tribunal simply noted the capacities in which the claimant had been employed. Its failure to make a clear finding of fact on the issue is nonetheless an error of law.

 

33. The drafting of the prescription test for the period before January 1, 1986 is relatively wide. Essentially the test is whether the claimant was in “work underground in a coal mine… as a coal miner”. There is no need, therefore, for the claimant to have been working either at the coal face or in a particular role underground. The pre-January 1, 1986 test involves three separate questions. First, was the claimant a coal miner? Secondly, was he involved in “work underground in a coal mine”? Third, how long was he in such work?

 

Was he a coal miner?

 

34. As to the first question, social security legislation does not define the term “coal miner”. The authorities analysed above show that one must focus on what the claimant actually did, and not what his job was labelled. Beyond that, it is ultimately a question of fact as to whether a particular individual was a “coal miner”. However, it is important to bear in mind Mr Commissioner Magnus’s observation in R(I) 3/78 that the way in which a workforce is “designated, classified or graded by reference to function, training or skills” is not determinative (see paragraph 22 above). The very breadth of the term “coal miner” also indicates that an unduly restrictive construction should be avoided. On that basis, the new tribunal may have little difficulty in concluding that the claimant’s pre-January 1, 1986 occupation was as a “coal miner”, although it is entirely a matter for them to decide.

 

35. More than a century ago the term “miner” was defined in the context of the Cornish tin mining industry (by section 2 of the Stannaries Act 1887) so as to include “all artizans, labourers, and other persons working in and about a mine, except the purser, secretary, agent, or manager”. Although that legislation has now been repealed by the Statute Law (Repeals) Act 1998, in my view it gives, at least by analogy, a flavour of the meaning of the term “coal miner”. So a tribunal might well reasonably form the view that a “coal miner” was anyone working in or about a coal mine, in a skilled, semi-skilled or unskilled “blue collar” capacity, but not, for example, a “white collar” colliery manager, mining engineer or mining surveyor.

 

36. I stress that the guidance in the previous paragraph is designed to give a flavour of what is meant by the term “coal miner”. It does not replace the statutory language. Indeed, it is probably neither possible nor wise to attempt to devise a comprehensive or exhaustive definition of “coal miner” sufficient to determine the issue in any given case. It is a question ultimately for tribunals to decide as an issue of fact. As the Court of Appeal observed in a rather different context, “Although this may be close to adopting the elephant test of knowing one when you see one, it is almost inevitable in this field” (Lucasfilm Ltd & Ors v Ainsworth & Anor [2009] EWCA Civ 1328, at paragraph 77).

 

Was he working underground in a coal mine?

 

37. As to the second question, the 1985 Regulations unsurprisingly define a “coal mine” as “any mine where one of the objects of the mining operations is the getting of coal”, but also include a compendious definition of the generic term “mine” itself, which includes shafts and both level and inclined planes within mines (see regulation 1(2)). However, while the statutory definition of “mine” also includes certain operations above ground, the particular test for PD A14 expressly requires “work underground in a coal mine” (emphasis added). Several other prescribed diseases also refer to “work underground”: for example PD D10 and PD D12.

 

38. This point was considered in detail by the Commissioner in R(I) 37/59, where it was held that a man working below ground level in a crushing plant, more than a mile from the coal mine itself, was not working “underground in a mine”:

 

“14. ‘Underground’ is a word of somewhat indefinite meaning, in ordinary usage. The primary dictionary definition meaning is ‘below the surface of the ground’; but this definition is itself ambiguous. In one sense a man who works in the basement of a building might be said to work ‘underground’; and so perhaps (although more doubtfully) might a man who works in an excavation. But, as the word is used in the regulation, its meaning is controlled by its context. The context is “in a mine”. ‘Underground in a mine’ normally connotes, in my opinion, what is colloquially referred to as ‘down the pit’…”

 

How long was he working underground in a coal mine?

 

39. As to the third question, the period or period concerned, when taken with any relevant post-January 1, 1986 employment, must “amount in aggregate to, at least 10 years”. Resolving this issue may pose some practical problems for tribunals, depending on the quality of the information which is available to them about a claimant’s employment history. These problems may be more acute where the individual has worked at several different pits and/or his work underground has been interspersed with jobs either above ground at the colliery or outside the coal industry. The Commissioners’ decisions in R(I) 3/78 and R(I) 2/79, discussed above, provide helpful guidance in computing periods of work in scheduled occupations.

 

40. Finally, I also observe that the focus “on what the claimant actually did” may present some difficult questions in borderline cases (in relation to whether the 10 year rule is satisfied), especially where the claimant was involved in any of the industrial disputes which have taken place in the coal industry in the past. It is arguable that two or three weeks on strike in any given year should not make any difference to the prescription test, just as two or three weeks’ holiday would not affect the overall position. However, as is well known, the 1984/85 stoppage lasted for almost a year in some pits. It would be very difficult to say that a claimant who was out on strike for a substantial period was involved in “work underground in a coal mine” during that time. That issue may or may not arise in the present case. If it becomes relevant, however, regard should be had by analogy to the view expressed by the Tribunal of Commissioners in R(I) 2/79 (at paragraph 20), namely that continuous absences from work of 3 calendar months or more should normally be excluded from the computation of the 20-year qualifying period for occupational deafness cases.

 

The Secretary of State’s submissions on the pre-January 1, 1986 test

 

41. Mr Kendall, for the Secretary of State, cites extensively from the 2008 IIAC report, and in particular from paragraphs 2 and 51-56 of the report. This, he argues, shows that IIAC had in mind that the prescription should cover those exposed to the risk of osteoarthritis because of “kneeling and squatting whilst under load” and that this further qualifying test applied to both the pre- and post-January 1, 1986 occupations. For the period before January 1, 1986, his submission is as follows:

 

“The Secretary of State takes the view that a broad definition should be applied provided that the work was underground and that it involved the person in question kneeling and squatting whilst under load for prolonged periods of each day.”

 

42. As to the first part of this submission, and for the reasons explained above, I am entirely satisfied that a broad definition should be applied to the occupation of “coal miner”, provided, of course, that the work was underground. That approach is also consistent with the position taken by IIAC in their report.

 

43. As to the second part of the Secretary of State’s submission, it is much less clear that there is any separate and additional requirement to show that the claimant’s occupation “involved the person in question kneeling and squatting whilst under load for prolonged periods of each day”, as Mr Kendall submits.

 

44. The IIAC report explains how, between the 1940s and 1960s, “miners would normally have spent most of their working careers at the pit face, in jobs that involved kneeling and squatting whilst bearing heavy loads for a large proportion of each day” (paragraph 54). Gradually, however, with increasing mechanisation, “less time was spent by fewer workers in kneeling and squatting under load, although certain tasks still required heavy manual effort while kneeling or squatting” (paragraph 54). The justification for the distinction between pre- and post-January 1, 1986 employments was put by IIAC in the following terms:

 

“55. Kneeling and squatting under load remained a significant feature of work for most underground miners until the mid-1980s, after which the majority of miners would not have spent prolonged parts of their working day kneeling and squatting.”

 

45. As indicated above (at paragraph 7), the Upper Tribunal may have regard to relevant IIAC reports as an aid to construction. However, as Mr Commissioner Goodman observed in R(I) 4/99 (at paragraph 9), if the legislation “is clear and unambiguous then the material in the Advisory Council’s Report cannot be used to qualify or alter its meaning. If, however, that wording is unclear or ambiguous the Council’s Report may be used to clarify it.”

 

46. Although ambiguity may lie in the eye of the beholder, I have to say that I do not regard the prescribed occupation within paragraph (a) of “Work underground in a coal mine … before 1st January 1986 as a coal miner” for the requisite period as being unclear or ambiguous at all. A tribunal can use its good sense to find the facts as appropriate. Applying the “elephant test” (see paragraph 36 above), I am confident that tribunals can be trusted to recognise a pre-January 1, 1986 coal miner when they meet one.

 

47. Accordingly, in my view the second limb of the Secretary of State’s submission seeks to introduce an unwarranted gloss on the statutory language. As Mr Commissioner Goodman also pointed out in R(I) 4/99, “it must be borne in mind that the claimant is entitled to any benefit which the law gives him in the shape of the actual wording of [the relevant paragraph] of Schedule 1 to the Prescribed Diseases Regulations” (emphasis in original). The Schedule does not limit relevant pre-January 1, 1986 employment to “Work underground in a coal mine … before 1st January 1986 as a coal miner providing it involved the person in question kneeling and squatting whilst under load for prolonged periods of each day”. Nor is the prescribed occupation qualified in some way as PD A6, another knee condition, is, namely being confined to any occupation involving “manual labour causing severe or prolonged external friction or pressure at or about the knee”.

 

48. The relevant passages from the IIAC report that Mr Kendall refers to are undoubtedly instructive in understanding the Council’s reasoning in arriving at the conclusion that the epidemiological evidence about the incidence of osteoarthritis in the knee in miners is such as to justify its prescription within the test laid down by section 108(2) of the Social Security Benefits and Contributions Act 1992. They cannot, however, be used to undermine the clear and unambiguous statutory language of the amending regulations in respect of the occupational test for PD A14 for periods before January 1, 1986.

 

The statutory presumption

 

49. I would add, however, that in respect of certain prescribed diseases there is a statutory presumption that a disease is due to the nature of employment (see regulation 4 of the 1985 Regulations). In principle, that presumption applies to PD A14, as the condition is not listed amongst the exclusions in regulation 4(1). However, the statutory presumption applies only where the claimant was employed in the scheduled occupation on the date of onset of the disease or at any time in the previous month. Sometimes there may be medical evidence of that – for example, where a coal miner had more than 10 years’ underground work before January 1, 1986 and before that date, whilst still employed by the NCB, was moved to lighter duties because of difficulties with kneeling. If the presumption applies, then the burden would be on the Secretary of State to show, on the balance of probabilities, that the disease was not due to the nature of the prescribed occupation (see Commissioners’ decisions R(I) 38/52 and R(I) 4/91, at paragraph 17(5)).

 

50. However, the time requirement in regulation 4(1) will not be met in many cases of PD A14, given the typical latency of the condition. Without the benefit of the presumption in regulation 4, the onus of proof will then be on the claimant to show that, on the balance of probabilities, his osteoarthritis of the knee has been caused by his occupation as a coal miner. That causation requirement is laid down by section 108(1) of the Social Security Contributions and Benefits Act 1992, which stipulates that the prescribed disease or injury must be “due to the nature of that employment” (see R(I) 3/04, at paragraph 16). It is not part of the diagnosis question itself.

 

51. This distinction has important consequences for the decision making process. For example, assume that a coal miner with more than 10 years’ underground work prior to January 1, 1986 has osteoarthritis of the knees, but also assume further that in his particular case the evidence points strongly to the conclusions that (i) in fact his work underground actually involved relatively little “kneeling and squatting whilst under load for prolonged periods of each day”; and (ii) his osteoarthritis is actually constitutional in origin. In such a case the correct approach for a tribunal is to find that the claimant has PD A14, because he meets the prescription test, but that he is not entitled to industrial disablement benefit because the disease was not due to the nature of his employment, giving reasons as appropriate.

 

The period after January 1, 1986: paragraph (b) of prescribed disease A14

 

52. The test for the period after January 1, 1986 in paragraph (b) of prescribed disease A14 is undoubtedly more prescriptive than that applying before that date. It is not sufficient that the claimant was a coal miner working underground. After that date, he must have fallen into one of the five groups set out in the Schedule, namely a (i) face worker working on a non-mechanised coal face; (ii) development worker; (iii) face-salvage worker; (iv) conveyor belt cleaner; or (v) conveyor belt attendant. The term “non-mechanised coal face”, which only applies to occupation (i), is defined as meaning “a coal face without either powered roof supports or a power loader machine which simultaneously cuts and loads the coal or without both.”

 

53. As indicated above, in the present case the tribunal essentially decided that because the claimant was an electrician, and because the job title “electrician” does not appear in any of the post-January 1, 1986 occupations, then therefore none of his post-January 1, 1986 employment could count as he had not worked in a prescribed occupation. That approach involved an error of law, as the tribunal focussed on the label attached to the claimant’s job, and not on the work that he actually did.

 

54. Mr Kendall’s submission on behalf of the Secretary of State is that the same test of working underground and of kneeling and squatting whilst under load should be applied after January 1, 1986 to the specific occupations listed under paragraph (b) of PD A14. I have explained at paragraphs 43-48 above why I do not accept that this further test applies in the context of employment before January 1, 1986. The position after that date is not quite so straightforward. Rather than using the broad-brush occupation of “coal miner”, the regulations governing the later period adopt a much narrower approach to defining the relevant occupations. In particular, five particular roles are identified, rather than a general reference to working underground as a coal miner. The starting point, however, must be the same as before, namely that the tribunal must look at what the person was actually doing. To that extent I do not accept the gloss that Mr Kendall seeks to place on the statutory wording of the prescription test by imposing a further requirement as to kneeling and squatting whilst under load.

 

55. In this context it is appropriate to consult the IIAC report to understand the basis for the distinction between the general and the particular occupational tests. IIAC, having established the mid-1980s as the relevant cut-off point, given the impact of increased mechanisation on mining processes (see paragraph 44 above), had this to say about the incidence of kneeling and squatting under load experienced by different categories of miners after that time:

 

“56. However, such exposures are likely to have persisted for faceworkers and face salvage workers in certain non-mechanised mines until a much later

period; and other categories of miner, such as development workers and conveyor belt cleaners and attendants, would have incurred such exposures

through activities such as installing track, pipework and conveyor belts, carrying heavy arched supports, and cleaning coal spillages by shovel in circumstances of restricted access.”

 

56. IIAC does not cite any of the epidemiological evidence in support of its decision to identify these particular groups of coal miners. This was presumably because the scientific studies involved were insufficiently fine-grained to support such distinctions. For example, the study by G McMillan and L Nichols entitled “Osteoarthritis and meniscus disorders of the knee as occupational diseases of miners”, itself reviewing earlier studies, refers to coal miners as a general group and concludes that kneeling and/or squatting, especially when lifting, is casually associated with an increased risk of osteoarthritis of the knee (Occupational and Environmental Medicine 2005; 62: 567-575). That being so, one can only assume that IIAC was satisfied by other evidence it received as to the types of actual work undertaken that these particular categories of coal miner remained at risk after January 1, 1986.

 

57. As noted at paragraph 9 above, there appears to be a difference between the IIAC recommendation and the implementing regulations. It is plain from the passage cited above that IIAC drew a distinction between “faceworkers and face salvage workers in certain non-mechanised mines” on the one hand and “other categories of miner, such as development workers and conveyor belt cleaners and attendants” on the other. Their actual recommendation did not refer to face-salvage workers, but the extract above strongly suggests that they regarded that group as subsumed within the general category of face workers in non-mechanised mines.

 

58. However, be that as it may, the new tribunal must apply the regulations as they find them (see paragraph 47 above). For whatever reason, face-salvage workers have been separated out in the list of prescribed occupations. The result is that any face-salvage worker is covered by the prescription test for the later period, whether working on a mechanised or non-mechanised coal face. Face workers, however, only qualify after January 1, 1986 if they worked on a non-mechanised coal face, as that term is defined.

 

59. In this context I must note that the claimant in his further submissions on the appeal, made the following further point:

 

“In my opinion my duties were just as arduous after 1-1-86 as they were before. In fact the more mechanised operations became, the more involvement we as electricians had, i.e. carrying heavy pieces of equipment etc whilst crawling along the face. This is just as traumatic on the knees as shovelling while kneeling.”

 

60. That may well be so, and of course circumstances may have varied from coalfield to coalfield and indeed from pit to pit within the same coalfield. However, the regulations plainly exclude face workers after January 1, 1986 who worked on mechanised coal faces.

 

61. The new tribunal will have to consider whether the claimant worked in any of the post-January 1, 1986 occupations. As explained above, the new tribunal cannot rely on the job title stated in the claimant’s contract of employment. The new tribunal also cannot simply rely on the claimant’s pay grade or the label that may appeared on the pay-slip in his wage packet. The focus, as has been explained, must be on what the claimant actually did. This must ultimately be a question of fact for the tribunal.

 

62. In practice a tribunal may well find it hard to accept that an electrician could ever fall within the terms of paragraphs (b)(iv) and (v), namely a conveyor belt cleaner or attendant. To be fair, the claimant in this case has never suggested as much. However, it is possible that an electrician might be, for example, a “face worker working on a non-mechanised coal face”, a “development worker” or a “face-salvage worker” within paragraphs (b)(i) to (iii). It all depends on the facts, and in particular what those occupations involved and what the claimant himself actually did.

 

63. The new tribunal will therefore have to make findings of fact as to whether the occupations specified in paragraphs (b)(i) to (iii) are relatively narrowly defined occupations or whether, as the claimant argues in his grounds of appeal, they are broad umbrella terms which describe a number of separate categories of worker. If the former, it may be unlikely that they encompass someone who is an electrician by training. If the latter, it is possible that an electrician might be included.

 

64. I note that the CES reply described the claimant as an “underground and coalface electrician” (see paragraph 10 above). If the tribunal conclude that the occupation of “face worker” is a broad enough term to include someone who is a qualified electrician, then of course that occupation will only count if the claimant was a “face worker working on a non-mechanised coal face”, which seems unlikely given what is known so far in the present case. Of course, the “non-mechanised coal face” rider does not apply to the occupations of “development worker” and “face-salvage worker”. It is conceivable, of course, that the claimant might have worked in one or more of the qualifying occupations in paragraph (b) and also in a non-qualifying occupation during his employment. If that is the case, the tribunal will need to make careful findings of fact as to the length and proportion of time involved in each occupation to see whether the 10 year test is met. The decisions of the Commissioners in R(I) 3/78 and R(I) 2/79 provide helpful guidance in such cases.

 

65. In the last resort, however, the tribunal must be satisfied in relation to the post-January 1, 1986 period that the claimant actually worked in one of the listed occupations, not that he worked in conditions similar to or indeed even identical to those experienced by the listed occupations. The previous tribunal was right to allude to that important distinction (see paragraph 13 above).

 

Summary

 

66. The general guidance above on the application of the prescription test for diseases prescribed under the Schedule to the 1985 Regulations may be summarised as follows:

 

(1)   In interpreting the occupational requirements for a prescribed disease, “it would be wrong to give to those words too narrow a definition when one considers the purpose of the statute, which was to provide compensation for those who suffered the prescribed disease as result of their occupation” (Secretary of State for Social Security v Davis [2001] EWCA Civ 105 at paragraph 23 per Rix L.J.);

(2)   Just as the statutory language should not be “artificially narrowed”, so too it should not be “artificially widened” (CI/207/2004);

(3)   The focus must always be on what the claimant actually did, not what his job was labelled (Janicki v Secretary of State for Social Security, also reported as R(I) 1/01, and CI/2668/2002);

(4)   Courts and tribunals may have regard to relevant Industrial Injuries Advisory Council reports as an aid to construction where legislation has been enacted to implement a recommendation in the report (R(I) 15/75, Davis, Janicki and Secretary of State for Work and Pensions v CS (II) [2010] UKUT 198 (AAC)).

 

67. In addition, the more specific guidance set out above on the application of the prescription test for PD A14 may be summarised as follows:

 

(1)   In considering a claimant’s employment before January 1, 1986 under paragraph (a), three questions may need to be addressed:

(i)               was he a coal miner?

(ii)              was he working underground in a coal mine?

(iii)            how long was he so working?

(2)   In considering a claimant’s employment on or after January 1, 1986 under paragraph (b), careful findings of fact will need to be made about the actual work carried out to establish whether it falls within one or more of any of the following occupational categories, namely a (i) face worker (but only if working on a non-mechanised coal face); (ii) development worker; (iii) face-salvage worker; (iv) conveyor belt cleaner; or (v) conveyor belt attendant;

(3)   The claimant’s formal job title and pay grade are not conclusive as to the issue of categorisation; furthermore “the fact that the workforce employed in the business is designated, classified or graded by reference to function, training or skills … does not of itself justify a conclusion that each separate designation, classification or grading involves a separate occupation” (R(I) 3/78);

(4)   Contrary to the Secretary of State’s submission, there is no separate requirement in relation to periods either before or after January 1, 1986 to the effect that the claimant’s occupation must have “involved the person in question kneeling and squatting whilst under load for prolonged periods of each day”;

(5)   Tribunals may need to consider whether or not the statutory presumption in regulation 4 of the 1985 Regulations as to causation applies in any given case;

(6)   In deciding whether a claimant has worked for an aggregate of 10 years or more in a relevant coal mining occupation or occupations, tribunals may need to consider whether there have been any lengthy periods of absence from work, e.g. due to strike action.

 

Conclusion

 

68. This appeal succeeds for the reasons set out above. The case is sent back to a new First-tier Tribunal for rehearing. The fact that this appeal to the Upper Tribunal has succeeded should not be taken as any indication as to the likely outcome of the rehearing, which is entirely a matter for the new tribunal.

 

 

 

 

 

 

 

 

 

 

Signed on the original Nicholas Wikeley

on 24 June 2010 Judge of the Upper Tribunal