Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Appeal No.  CI/2599/2010

ADMINISTRATIVE APPEALS CHAMBER

Before Judge S M Lane

This decision is made under section 12(1) and (2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007.

The decision of the tribunal heard on 16/6/10 under reference 064/10/00350 is dismissed. The decision of the First-tier Tribunal did not involve the making of an error of law.

REASONS FOR DECISION

1      The appellant brings this Reduced Earnings Allowance (‘REA’) appeal with my permission.  The Secretary of State does not support the appeal.  Following consideration of the arguments on both sides, I have come to the conclusion that there has been no error of law.

2       The facts giving rise to the appeal:  The appellant claimed REA on 17/8/09.  His view was that a back injury he suffered in an accident at work in 1983, at the age of 28, resulted in his present inability to carry on work as a plumber/demolition worker, though he had worked mainly as such from approximately 1984 until he gave up that aspect of his career in 2002.  He was 54 at the date of the REA claim and was holding an assessment of 5% for the back injury from 3/2/84 ‘for life’. 

3       In the accident, the appellant slipped a disc which had been causing him trouble previously.  He had surgery to remove the affected disc a few months later (p50), which was described by medical evidence he provided as having had a good outcome.  A medical examiner saw the appellant in 2004 in connection with his request that his existing assessment for Disablement Benefit be superseded because his condition had worsened.  The medical examiner, however, found that the appellant’s condition at that time was due to constitutional causes, and not the original accident. The Secretary of State therefore refused to supersede the assessment.  He did not, however, substitute a decision that there was no loss of faculty remaining from the original injury, though he should have done. 

4       In 2009, another medical examiner saw the appellant in connection with the REA claim.  He concluded that, although the appellant was incapable of his usual job of plumber/demolition worker, this was not as a result of loss of faculty from the accident.  In the intervening years, the appellant had developed degenerative lumbar spinal disease and degenerative arthritis of both of his knees.  These constitutional causes were the reason he could not work as a plumber or in demolition, in his opinion, and not the loss of faculty from the accident.  The Secretary of State refused the claim on the basis that the loss of faculty did not materially contribute to the appellant’s incapacity to perform his regular occupation. 

5       It is important to point out that some of the confusion in this case arose from the way the Secretary of State put the case to the tribunal.  He submitted that the appellant’s loss of faculty did not play a material part in his incapacity for his regular occupation, whereas the evidence before the Secretary of State (and the tribunal) was that it played no part in it whatsoever.  The remainder of the confusion was caused by leaving in place the existing 5% assessment, which further reinforced the erroneous view that there was a subsisting, relevant disablement. 

6       The First-tier Tribunal (the tribunal) confirmed the outcome decision which was, technically, that the appellant was not entitled to REA.  It did not, however, adopt the reason given by the Secretary of State for the refusal, which was that the loss of faculty in respect of the accident did not contribute materially to the appellant’s incapacity for his regular occupation.  Instead, the tribunal’s states in the decision notice that the appellant was not entitled to REA because his problems were, by the date of claim, entirely constitutional.  In [4vi] it finds that the appellant had recovered from his accident and his subsequent surgery. That was a matter for the expert tribunal to decide as a matter of its own expertise.  Although the appellant does not agree with it, it was a conclusion the tribunal was entitled to reach on the evidence before it.  ,

7       This would be enough to put an end to the appeal, and on closer reading, it does so.  However, in the Statement of Reasons the tribunal does mention in [4i] that it did not consider that the accident and its subsequent effects had ‘either played a material part in his return to his regular occupation or in permanently preventing him from doing it’.  This seemed to apply a test of materiality and to raise a question of whether two causes were operating in relation to the appellant’s incapacity to perform his regular occupation.  The led the appellant to appeal on the basis that, by asking whether the loss of faculty was a material cause of the incapacity to perform his regular occupation, the tribunal  had set the standard too high.  While he accepted that some of his problems resulted from natural degeneration, he submitted that there was still a sufficient causational link between the injury suffered in the accident and his incapacity for work to result in an award of REA.  He argued that the correct test was that stated in R(I) 17/59:  whether ‘there subsists an incapacity which is not negligible and results from the relevant loss of faculty’.  In other words, if the loss of faculty was not de minimis (so trivial that it should be ignored), it was enough.  He pointed to his existing assessment of 5%.  If he was correct, it followed from R(I)17/59 that he could succeed notwithstanding that some far more serious incapacity had supervened. 

8       The Secretary of State’s Response on this point was, first, that the principle in R(I)17/59 did not apply to the appellant.  R(I)17/59 concerned a claimant whose incapacity for his regular occupation arose from two causes, the loss of faculty resulting from the accident and the arthritis which had worsened over time.  Although in R(I)17/59 the loss of faculty from the accident was small, it was nevertheless material given the nature the claimant’s regular occupation.  In the appellant’s case, however, the tribunal found that the sole cause of his incapacity to carry out his regular occupation was degenerative disease, which had nothing to do with the accident.  I accept that that is a correct analysis.

9       However, since both the appellant and the Secretary of State made submissions relating to the meaning of ‘materiality’ in relation to causation in REA, it is courteous to deal with their arguments.  Nothing I say, however, is binding in light of the findings of fact on the appellant’s continuing difficulties and the reasons given for the tribunal’s decision.

10   The starting point is paragraph 11 of Schedule 3 of the SSCBA 1992.  This sets out the requirement that the disablement resulting from the accident must render the claimant incapable, or help in any material degree to render him incapable, of following his regular occupation.  Materiality is, therefore, the standard set down by law, though it is not defined further.  Case law, on the other hand, has attempted to give content to a word that is otherwise unquantifiable.  At [15] of R(I)17/59, the Commissioner asks whether the impact was ‘not negligible’ (sometimes referred to as ‘de minimis’); or whether the effects of the accident ‘‘worn off’’; and citing CI/30/54, whether it ‘contributed to an extent which cannot be ignored’.  In [16], he asked whether ‘the disability was substantial and rendered him incapable of doing his regular work’.  In R(I)26/52, another dual causation case which concerned special hardship allowance (the predecessor of REA), the Commissioner used ‘appreciable’ (large or important enough to be noticed) as a synonym at [7]. 

11   The Secretary of State submitted that the various phrases used in R(I)17/59 were not meant to do more than illuminate how a decision on whether incapacity was a result of a relevant loss of faculty was to be approached.  He accepted that the contribution which the relevant loss of faculty made to the claimant’s incapacity to carry out his regular occupation had to be more than minimal (though it did not have to be the whole cause of it).  

12    It is unlikely that the Commissioner in R(I)17/59 would have used four formulations to explain what he meant if he thought they had significantly different meanings.  Indeed, he recited the view of the Commissioner in CI/30/54 on the impossibility of precisely computing the contribution made respectively by a constitutional disease and an accidental injury towards producing incapacity.  It is reasonably plain that in R(I)17/59, the Commissioner intended to do no more than give colour to the otherwise protean concept of materiality. 

13   In determining the point at which the loss of faculty ceases to be causally potent, the meaning of ‘material’ should be assessed by within the context of an undoubtedly generous scheme for compensation in which entitlement may result from as little as a 1% disablement caused by a relevant loss faculty.

14    It is, in my view, to start with ‘materiality’, and not with its supposed synonyms.  While it is clear that a judgment on whether something is ‘material’ requires us to look at the lower end of the scale, it is not entirely clear that all of the synonyms have the same connotations.  Ordinary people are unlikely to equate something which is just above negligible, for example, with something that is substantial.  As regards an effect that has worn off, in my experience as a First-tier Judge, tribunals including medical members use this term to mean that the effects of an injury were exhausted, and not that they were present at a low level, so it is inapt in this context.

15    In common dictionary terms, ‘material’ means (in this context) ‘relevant, pertinent or important’.  In common parlance, however, ‘important’ suggests more than ‘relevant’, the latter simply indicating a logical connection.  In legal terms, on the other hand, ‘material’ tends to indicate a fact or circumstance which would have influenced the judgment of the body making the decision, in that it was one to which it would have wished to direct its mind though it might not have been decisive: Saker v Secretary of State for Social Security, (The Times, 16/1/88); Pan Atlantic Insurance Co. v Pine Top Insurance Co [1994] 3 WLR 677; R(Iran) v Secretary of State for the Home Office [2005] EWCA 982.

16   There are further legal contexts in which ‘material’ may bear greater weight than in the indicated in the cases in the previous paragraph, but I do not consider them to be relevant to REA, in which the scheme is meant to be generous. 

17   There can be no clear answer to how small a small contribution can be.  However – and bearing in mind the impossibility of precise quantification - in my view, the legal meanings suggested in [15] point in the right direction: something makes a material contribution if it makes, or could make, a difference to one’s thinking.  

18   Had the tribunal based its decision on materiality, I would have found that it made no error of law.  It is plain from [4i] that it bore fully in mind that an assessment of even 1% could be enough for an award, thus making it quite clear that it appreciated that the level of contribution could be low but still make a difference.  There can be no doubt that that the tribunal weighed the relevant evidence carefully in mentioning that the injury no longer played a material part in the incapacity for work now affecting the appellant. 

19   The relevance of the continuing 5% assessment:  The appellant submitted that the existing 5% assessment of disablement ‘for life’ made in 1984 showed that the injury was an effective cause of his incapacity.  There are a number of points to be made here. 

20   While the existence of an assessment is a necessary condition for an award of REA, it is not sufficient: it must also be shown that the loss of faculty from the injury is a cause of incapacity for work. 

21   ‘For life’, in this context, means indefinitely, not unchangeably.  Both the appellant and the Secretary of State can initiate the process by which an existing assessment may be superseded if, for example, there has been a change of circumstances.  If, on reassessment, the Secretary of State decides that there has been a change for the better, for worse, or because the original injury or its sequelae are no longer a material cause of the appellant’s disablement, he can supersede the assessment under section 10 of the Social Security Act 1998 and regulation 6 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999. 

22   The disablement assessment and REA entitlement are legally separate and distinct.  A tribunal dealing a REA award cannot change the disablement assessment and the tribunal in this appeal did not do so. 

23   It has always been possible for a tribunal dealing with an REA question to depart from a disablement assessment, though the legal routes for doing so vary for pre-1999 and post-1999 decisions.  A disablement assessment is, by its nature, a prediction for the future of the extent to which a claimant will remain disabled from his loss of faculty.  Before 1999, if a tribunal dealing with an REA issue found that the prediction made in an assessment was no longer correct, it was not bound by it and had to decide what the actual effects of the relevant loss of faculty were, though it cannot change the disablement assessment itself:  R v Industrial Injuries Commissioner ex p Ward (1965), reported as R(I)7/64, per Parker LCJ:

‘It is for the medical authorities alone to decide whether the relevant accident has caused a loss of faculty and in what the loss of faculty consists.  After that point, there is a division of jurisdiction.  The medical authorities make a forecast of the probable future effects of the relevant loss of faculty and it is on this forecast, or assessment, that disablement benefit is based.  The statutory authorities however, have to decide what are the actual physical effects upon the beneficiary of the relevant loss of faculty at the time for which [REA] is claimed.  In reaching this decision they are not bound by the forecast of the medical authorities though they would certainly regard that forecast as being of evidential value.  They are at complete liberty, in my judgment, to admit and accept evidence tending to show that the disability expected by the medical authorities to continue has in fact ceased to exist.’ 

24   Since 1999, and as a result of the Social Security Act 1998, sections 1, 8, and Commencement Order No. 8, the adjudication system for Industrial Injuries Benefit changed.  Since then, there has been no distinction between the medical authority, which previously had jurisdiction over all medical issues, and the decision maker who was bound by their decisions.  The Secretary of State is now responsible for all aspects of the decision, having regard to the medical advice he is given.  As a result of the same legislation, the appeals tribunal became a unified body competent to deal with both medical and non-medical issues.  While the result is the same in that the tribunal can depart from the disablement assessment, the process is different.  What the tribunal still cannot do is actually change the disablement assessment itself while dealing with the separate benefit of REA.  That must be done by a tribunal which has before it a formal appeal on the assessment or a Disablement Benefit of which it forms part.

25   The appellant has made a large number of further complaints in the letter accompanying his appeal.  They are disagreements with the way the tribunal interpreted the evidence and with their findings.  His complaints are not justified.  The facts found are supported by the written and oral evidence.  Taking just one or two examples, he disputes that Mr Case said that there was nothing to be gained by appealing against the Ministry assessment. This statement can, however, be found in Mr Case’s letter at page 39.  He disputes the way the tribunal cites Mr Case’s report, but I consider that they have done so fairly.  Indeed, the quotation the appellant himself selects from the report does nothing to assist his argument since it opines that (although being a plumber is not ideal for him) the appellant is managing this job and will probably be able to continue with the job in the foreseeable future  - as, indeed, he actually did. 

[Signed on original] S M Lane

Judge of the Upper Tribunal

[Date] 20 September 2011