Upper Tribunal (Administrative Appeals Chamber)

[2012] AACR 15

(JL v Secretary of State for Work and Pensions (II)

[2011] UKUT 294 (AAC))

Judge Ward CI/2407/2010

20 July 2011 CI/2407/2011

Osteoarthritis of the knee was prescribed as industrial disease A14 in respect of certain categories of coal-miner with effect from 13 July 2009. The claimants in the two appeals both made claims shortly after that date for industrial injuries disablement benefit in respect of loss of faculty resulting from that disease. Both had had operations replacing all or part of their knee joints with artificial joints some considerable time after contracting the disease but before the disease was prescribed. In both cases the decision-maker assessed disablement from 13 July 2009 on the basis that the claimants had the prescribed disease at that date. Both claimants appealed against their assessments and in both cases the First-tier Tribunal took the view that it was not possible to have osteoarthritis in an artificial joint. As a result the tribunal in the case of total replacement decided that the claimant did not have the disease and the tribunal in the case of partial replacement decided that loss of faculty in the unreplaced part of the knee only was to be considered. Both claimants appealed to the Upper Tribunal. It was common ground at that stage that the First-tier Tribunal’s approach had been wrong in law. The Upper Tribunal judge received medical evidence that there is usually some residual lower limb impairment following knee replacement surgery.

Held, allowing the appeals, that:

1.                   applying section 103 of the Social Security Contributions and Benefits Act, the question to be determined was whether the claimant suffered from loss of physical or mental faculty and then whether that loss of faculty was as the result of the relevant disease. Therefore both tribunals had gone wrong in looking for a current medical diagnosis of osteoarthritis at the date of decision, rather than focusing on the loss of faculty and then asking what had caused it (paragraphs 15 to 17);

2.                   subject to the evidence in any particular case, it would not in general be appropriate to regard knee replacement operations which go ahead without complications as breaking the chain of causation between the original osteoarthritis and such loss of faculty as a claimant may continue to experience. In the present cases there was no evidence on which a tribunal could properly conclude that the chain of causation was broken (paragraphs 18 and 19);

3.                   it was at the stage of assessment of the degree of disablement that any improvement in lower limb function resulting from replacement of the knee joint fell to be taken into account and the possibility of an assessment of disablement above naught per cent was not excluded merely because a claimant’s knees had been replaced; rather, the matter fell to be considered on a case-by-case basis (paragraph 21);

4.                   in both the present cases there was sufficient doubt about the basis for the First-tier Tribunal’s assessments for the cases to be remitted to a differently constituted tribunal for rehearing (paragraphs 24 to 26).

DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

 

Mr Duncan Wall, Durham Welfare Rights Service, appeared for both appellants.

 

Mr Stephen Cooper, Solicitor, appeared for the respondent.

 

Decision: In CI/2407/2010 the decision of the First-tier Tribunal sitting at Newcastle-upon-Tyne under reference 228/10/00756 on 14 July 2010 involved the making of an error of law and is set aside. The case is remitted to a differently constituted tribunal for rehearing in accordance with the law.

 

In CI/754/2011 the decision of the First-tier Tribunal sitting at Sunderland under reference 236/10/01612 on 21 October 2010 involved the making of an error of law and is set aside. The case is remitted to a differently constituted tribunal for rehearing in accordance with the law.

 

Neither case is to be reheard until after the Upper Tribunal has issued its decision in CI/2239/2010 or further order. Liberty to apply.

 

REASONS FOR DECISION

 

1. Since 13 July 2009 osteoarthritis of the knee has been a prescribed disease (PD) (numbered A14) in respect of certain categories of coal-miner. The present appeals examine what difference, if any, it makes where a claimant’s osteoarthritis has resulted in him undergoing knee replacement surgery. It is common ground between the representatives of the claimants and the Secretary of State that the First-tier Tribunals erred in law and that the appeals should be allowed. I agree.

 

2. The claimant in CI/2407/2010, Mr L, was born on 1 June 1941. He claimed disablement benefit for PD A14 on 19 August 2009, when he was aged 68. He had undergone an operation for replacement of one half of his left knee on 23 May 2001 and for total replacement of his right knee on 11 September 2007. A medical adviser advised that he was suffering from PD A14, with a date of onset of 1 January 1990. Disablement was assessed (under a final assessment) at ten per cent, for the period from 13 July 2009 for life. By a decision dated 14 December 2009 the assessment was accepted, but the claim for disablement benefit refused, because section 103(1) of the Social Security Contributions and Benefits Act 1992 (the 1992 Act) imposes a minimum threshold of 14 per cent disablement before benefit can be awarded.

 

3. Mr L appealed to the First-tier Tribunal, which on 14 July 2010 set aside the decision of 14 December 2009 and substituted its own decision to the following effect:

 

“The appellant has suffered from prescribed disease No. A14 from 1.1.90. The relevant loss of faculty is impaired half left knee function.

 

The extent of the resulting disablement is assessed at 2 per cent for the period from 13.7.09.

 

This is a final assessment.

 

[Mr L] does not have osteoarthritis of the right knee nor in the replaced half of his left knee. A14 is restricted to the non-replaced part of his left knee.

 

The loss of faculty is minimal. He can walk significant distances.

 

The Tribunal was satisfied that it is not possible to have osteoarthritis in his right knee or in the replaced half of his left knee because these are not bony joints and it is not possible to have osteoarthritis in a joint comprising man-made materials. The replacement joint removes the causative link.”

 

4. Mr L appeals to the Upper Tribunal with permission of a judge of the First-tier Tribunal.

 

5. The claimant in CI/754/2011, Mr O, was born on 27 September 1939. He claimed disablement benefit for PD A14 on 9 September 2009, when he was approaching his 70th birthday. He had undergone an operation for replacement of the left knee in January 2007 and of the right in October 2007. A medical adviser advised that he was suffering from PD A14, with a date of onset of 1 January 1969 and disablement was assessed (under a final assessment) at 15 per cent for the period from 13 July 2009 for life. This was based on an assessment at 20 per cent, reduced by five per cent in respect of previous injury to Mr O’s knees. The assessment was accepted by the decision-maker who by a decision dated 15 February 2010 awarded disablement benefit from 13 July 2009 on the basis of 15 per cent (net) assessment.

 

6. Mr O appealed to the First-tier Tribunal against the five per cent reduction. In the light of the rounding mechanism provided by section 103(3) of the 1992 Act, it is not clear how it availed him to do so.

 

7. On 21 October 2010 the First-tier Tribunal disallowed Mr O’s appeal but also set aside the decision of 15 February 2010 on the grounds that at no time since 13 July 2009 had Mr O suffered from PD A14. (I am not clear that in Mr O’s case, unlike Mr L’s, any forewarning was given by the tribunal of this additional issue, which had not been raised by the Department, but no point is taken on this in the appeal before me.)

 

8. In its statement of reasons, the First-tier Tribunal said:

 

“7. It is clear from the history and the medical evidence assembled in the appeal bundle that the appellant had severe osteoarthritis of both knees but he underwent a left total knee replacement in January 2007 and a right total knee replacement in October 2007. Since that date he has not had osteoarthritis of the knees and cannot therefore have a diagnosis of PD A14 which is dependent on the evidence of that condition in coal miners. Currently he has no detectable disablement or loss of function in his knees following the knee replacement surgery. He continues with annual review by the Orthopaedic Surgeon who takes X-rays each year, the last one being in March of this year [2010] and currently there is no indication of any concern about his post operative progress. Because of these findings the appellant does not have PD A14 and the assessment of 15 per cent does no longer apply.”

 

9. Mr O appeals with permission of a judge of the First‑tier Tribunal.

 

10. It is common ground that, while of course the two tribunals expressed themselves differently, the central issue is the same in both cases.

 

11. Section 108(1) of the 1992 Act provides:

 

“Industrial injuries benefits shall, in respect of a person who has been in employed earner’s employment, be payable in accordance with this section and sections 109 and 110 below in respect of –

 

(a) any prescribed disease …

 

which is a disease … due to the nature of that employment and which developed after 4 July 1948.”

 

12. Section 109(1) indicates that:

 

“Subject to the power to make different provision by regulations, and to the following provisions of this section and section 110 below –

 

(a) the benefit payable under section 108 above in respect of a prescribed disease …, and

 

(b) the conditions for receipt of benefit,

 

shall be the same as in the case of personal injury by accident arising out of and in the course of employment.”

 

13. Section 110 is not relevant for present purposes. Of the regulations made pursuant to the wide-ranging powers in sections 108 and 109, reference should be made to Schedule 2 to the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations (SI 1985/967), which states that:

 

“In sections 94 to 107 of the Social Security Contributions and Benefits Act 1992 and sections 8 to 10 of the Social Security Administration Act 1992 references to accidents shall be construed as references to prescribed diseases and references to the relevant accident shall be construed as references to their relevant disease and references to the date of the relevant accident shall be construed as references to the date of onset of the relevant disease.”

 

14. Making the amendment required by that provision, I turn to section 103(1), which provides that:

 

“Subject to the provisions of this section, an employed earner shall be entitled to disablement pension if he suffers as the result of the [relevant disease] from loss of physical or mental faculty such that the assessed extent of the resulting disablement amounts to not less than 14 per cent …”

 

15. It appears to me that the question to be determined on the claims made by Mr L and Mr O was whether the claimant “suffers … from loss of physical or mental faculty”. It was then necessary to go on to ask whether that loss of physical or mental faculty was “as the result of the relevant disease”. This in turn would involve determining:

 

(a) whether the cause of the loss of faculty experienced at the date of decision was osteoarthritis of the knee. This necessarily involves considering whether the claimant had suffered from it – as to which the carrying out of knee replacements might well be considered material evidence – as well as whether subsequent events were such as to break that causation;

 

(b) whether the various occupational conditions for PD A14 to apply were met (as to which there is no dispute in either of the present cases); and

 

(c) whether (with the benefit, where applicable, of the statutory presumption contained in regulation 4 of the 1985 Regulations) the claimant’s occupation caused him to suffer from the prescribed disease.

 

16. (It may be that in practice medical advisers and decision-makers have tended to begin by asking questions of diagnosis and whether the condition was caused by the employment before turning to questions of whether the disease resulted in a loss of faculty and the extent of any resulting disablement. However, that is a matter of practice, not a rule of law, and the present cases illustrate that the legislation may require the questions to be considered in a different order.)

 

17. Where, it seems to me, both tribunals went wrong was in looking for a current medical diagnosis of osteoarthritis at the date of decision, rather than on focusing on the loss of faculty and then asking what had caused it, as section 103 requires.

 

18. I do accept however that one might, perhaps, be able to read the decisions as indicating that the tribunals did consider questions of causation. But their argument would then be predicated on it being the (osteoarthritis-free) replacement knee which was the cause of the ongoing loss of faculty, rather than the original osteoarthritis.

 

19. I do not regard this position as sustainable. Evidence was given by Dr C Leris of the DWP, which was accepted by Mr Wall. Dr Leris indicated that:

 

“An artificial joint is not equivalent to replacing the knee joint with a perfect new knee. Replacement of the knee joint tends to relieve pain due to arthritis in the knee. Usually this means walking ability that was previously restricted by pain is regained after the operation. Lower limb impairment in terms of reduced range of movement is not improved by knee replacement. Typically there is some residual restriction of bending, squatting or kneeling after knee replacement surgery.”

 

The evidence from Dr Leris as regards the limitations on what can be achieved by a knee replacement operation confirms me in the view that it will not in general be appropriate to regard knee replacement operations which go ahead without complications as breaking the chain of causation between the original osteoarthritis and such loss of faculty as a claimant may continue to experience, although I accept that this view may be subject to the evidence in any particular case. In the present cases, however, there was no evidence on which a tribunal could properly conclude that the chain of causation was broken.

 

20. I should add that it seems to me that it makes no difference to a claim made after the coming into force of the legislation introducing PD A14 that a person’s osteoarthritis has an earlier date of onset. Prior to 13 July 2009 a claimant would not have been able to argue that the loss of faculty caused by osteoarthritis of the knee had arisen as the result of the relevant prescribed disease, because that condition was not a prescribed disease. Once it became prescribed, that did not alter what was factually the cause of the loss of faculty: it was simply that that cause now amounted to a prescribed disease.

 

21. None of this is to say that it is irrelevant that a knee joint has been replaced. Rather, in general, it becomes relevant at the stage of assessment of the degree of disablement. To quote Dr Leris further:

 

“Disablement in PDA14 is impairment of lower limb function …

 

Lower limb function is expected to improve after knee replacement surgery once healing and rehabilitation are complete. Lower limb function is expected to remain at the improved level in the long term in older people. In younger people improved and stable function is also achieved but years later the joint will loosen or fail and need to be replaced in a significant minority. Results of second surgery may not be as good. In a small number of cases where complications of surgery have developed lower limb function will be worse and further treatment, including surgery, may be required.”

 

It follows from Dr Leris’s evidence here and in [19] that the possibility of an assessment of disablement above 0 per cent is not excluded merely because a claimant’s knees have been replaced; rather, the matter falls to be considered on a case-by-case basis.

22. The key provisions relating to the assessment of disablement are to be found in Schedule 6 of the 1992 Act. Paragraphs 1, 6 and 7 provide as follows:

 

“1. For the purposes of section 103 above and Part II of Schedule 7 to this Act, the extent of disablement shall be assessed, by reference to the disabilities incurred by the claimant as a result of the relevant loss of faculty, in accordance with the following general principles –

 

(a) except as provided in paragraphs (b) to (d) below, the disabilities to be taken into account shall be all disabilities so incurred (whether or not involving loss of earning power or additional expense) to which the claimant may be expected, having regard to his physical and mental condition at the date of the assessment, to be subject during the period taken into account by the assessment as compared with a person of the same age and sex whose physical and mental condition is normal;

 

(b) regulations may make provision as to the extent (if any) to which any disabilities are to be taken into account where they are disabilities which, though resulting from the relevant loss of faculty, also result, or without the relevant accident might have been expected to result, from a cause other than the relevant accident;

 

(c) the assessment shall be made without reference to the particular circumstances of the claimant other than age, sex, and physical and mental condition;

 

(d) the disabilities resulting from such loss of faculty as may be prescribed shall be taken as amounting to 100 per cent. disablement and other disabilities shall be assessed accordingly.

 

6. (1) Subject to sub-paragraphs (2) and (3) below, the period to be taken into account by an assessment for the purposes of section 103 above and Part II of Schedule 7 to this Act of the extent of a claimant’s disablement shall be the period (beginning not earlier than the end of the period of 90 days referred to in section 103(6) above and in paragraph 9(3) of that Schedule and limited by reference either to the claimant's life or to a definite date) during which the claimant has suffered and may be expected to continue to suffer from the relevant loss of faculty.

 

(2) If on any assessment the condition of the claimant is not such, having regard to the possibility of changes in that condition (whether predictable or not), as to allow of a final assessment being made up to the end of the period provided by sub-paragraph (1) above, then, subject to sub-paragraph (3) below –

 

(a) a provisional assessment shall be made, taking into account such shorter period only as seems reasonable having regard to his condition and that possibility; and

 

(b) on the next assessment the period to be taken into account shall begin with the end of the period taken into account by the provisional assessment.

 

(3) Where the assessed extent of a claimant’s disablement amounts to less than 14 per cent., then, subject to sub-paragraphs (4) and (5) below, that assessment shall be a final assessment and the period to be taken into account by it shall not end before the earliest date on which it seems likely that the extent of the disablement will be less than 1 per cent.

 

(4) Sub-paragraph (3) above does not apply in any case where it seems likely that –

 

(a) the assessed extent of the disablement will be aggregated with the assessed extent of any present disablement, and

 

(b) that aggregate will amount to 14 per cent. or more.

 

(5) Where the extent of the claimant’s disablement is assessed at different percentages for different parts of the period taken into account by the assessment, then –

 

(a) sub-paragraph (3) above does not apply in relation to the assessment unless the percentage assessed for the latest part of that period is less than 14 per cent., and

 

(b) in any such case that sub-paragraph shall apply only in relation to that part of that period (and subject to sub-paragraph (4) above).

 

7. An assessment for the purposes of section 103 above and Part II of Schedule 7 to this Act shall –

 

(a) state the degree of disablement in the form of a percentage;

 

(b) specify the period taken into account by the assessment; and

 

(c) where that period is limited by reference to a definite date, specify whether the assessment is provisional or final;

 

but the percentage and the period shall not be specified more particularly than is necessary for the purpose of determining in accordance with section 103 above and Parts II and IV of Schedule 7 to this Act the claimant's rights as to disablement pension or gratuity and reduced earnings allowance (whether or not a claim has been made).”

 

23. A number of issues have arisen concerning the extent to which past disablement may fall to be taken into account under these provisions. They are due to be explored in CI/2239/2010, a case which it was originally intended to hear together with the two present appeals, but this was precluded by diary clashes affecting the availability of the representative in that case. For his part, Mr Wall is content to allow those issues to be determined in CI/2239/2010 and does not seek to address me on them.

 

24. It is common ground between the parties that the present cases should be remitted. In the case of Mr L, the tribunal assessed the disablement at two per cent on the alternative bases that (a) it was only the disablement caused by the unreplaced half-knee that was relevant and (b) it was the totality of disablement that was relevant, reaching (on either basis) the figure of two per cent. There are criticisms which could be made of the tribunal’s assessment on that fall-back basis, but it would be a rare case in which one would find an error of law in the assessment of disablement. However, here, the error of law leading me to set the tribunal’s decision aside is not one relating to the assessment of disablement; the question for me is whether I am content to re-make the decision adopting the two per cent assessment. It is I think arguable that the tribunal concentrated on one factor (the claimant’s apparent walking ability on the day of the hearing) to the exclusion of other relevant factors and on that basis I am content to accede to the position which both parties support that the matter should be looked at again.

 

25. In the case of Mr O, it is possible to read paragraph 7 of the tribunal’s statement of reasons in more than one way and it is not entirely clear either that the tribunal was saying that there was in any event no remaining disablement or, if it was, how it reached that conclusion in the light of matters referred to elsewhere in its statement of reasons, notably paragraphs 3 and 4, which suggested that there was. Once again, I am content to remit the case as agreed by the parties.

 

26. In Mr O’s case, he suffered significant knee injuries resulting in knee surgery some years ago as the result of an industrial accident. The tribunal will need to determine the cause of any loss of faculty. If it concludes that any of Mr O’s disablement was attributable to the industrial accident, it would need to consider an offset under regulation 11(3) of the Social Security (General Benefit) Regulations (SI 1982/1408), leaving an assessment of the sum of the disablement due to PD A14 and the interaction of the accident with the Prescribed Disease.

 

27. In both cases, it is at least possible that the assessments might be affected by the point in CI/2239/2010 and, though he does not wish to address me on them, Mr Wall, like Mr Cooper, is content that the remitted cases in the present appeal should not be heard until after a decision has been given in CI/2239/2010.

 

28. It remains for me to thank Mr Cooper and Mr Wall and those instructing or assisting them for the thorough and professional way in which this case has been prepared, which has enabled a point of law likely to be of concern to a significant number of claimants, not least in the area served by Mr Wall’s office, to be clarified.