IN THE UPPER TRIBUNAL Case No CI/1565/2010

ADMINISTRATIVE APPEALS CHAMBER

Before UPPER TRIBUNAL JUDGE WARD

Decision:  The Secretary of State’s appeal is allowed (on a technical level only).  The decision of the First-tier Tribunal sitting at Newcastle-upon-Tyne on 12 March 2010 under reference 228/09/04922.involved the making of an error of law and is set aside, but having made further findings of fact as necessary I remake it to the same effect.  The late claimant’s claim is to be determined under United Kingdom legislation.

REASONS FOR DECISION

1. The late claimant, Mr F, had worked in the building trade in the United Kingdom, Saudi Arabia and Ireland, where he last worked.  On or around 15 January 2009 he claimed United Kingdom disablement benefit based on prescribed disease D8 (Lung cancer with evidence of asbestosis).  On 25 April 2009 he died.

2. By a decision dated 20 August 2009, the Secretary of State determined that Mr F’s claim could not be accepted.  The stated grounds were “because he last worked in employment for which the disease could be prescribed in a European Union state other than the United Kingdom.”

3. Mrs F appealed on his behalf on the grounds that:

(a)  her husband did work in Ireland but he never worked with asbestos at any time while working there

(b)  he had told her before he died that the only place he worked with asbestos was Scotland.

4. At issue were the provisions of Council Regulation (EEC) No 1408/71, Article 57(1) of which provides:

“ “Article 57

Benefits for an occupational disease where the person concerned has been exposed to the same risk in several Member States

1. When a person who has contracted an occupational disease has, under the legislation of two or more Member States, pursued an activity which by its nature is likely to cause that disease, the benefits that he or his survivors may claim shall be awarded exclusively under the legislation of the last of those States whose conditions are satisfied, taking into account, where appropriate, paragraphs 2 to 5.”

Paragraphs 2 to 5 are not relevant to this claim.

5. There was evidence before the First-tier Tribunal from the Irish Health and Safety Authority that asbestos was used in the construction industry in Ireland  during the period Mr F was working in that country.

6. The First-tier Tribunal allowed Mrs F’s appeal on the stated ground that:

“The evidence from Mr F... was that during his apprenticeship [sc. in Scotland] from 1966 to 1970 he was “working in the same area as joiners who were cutting asbestos sheet material on large benches fixed to the workshop floor.”  We accept this evidence and considered that this level of exposure is far more significant than any subsequent exposure in Employed Earners Employment in Ireland in the periods 1979 to 1981 and 2001 to 2008 where, on [Mrs F’s] evidence, her husband was employed as a foreman carpenter on site and on new housing construction projects.”

Consequently, the tribunal decided that “the case falls to be dealt with under the United Kingdom Scheme.”

7. The Secretary of State sought to appeal, arguing that by comparing the relative significance of exposure to asbestos in the United Kingdom and Ireland the First-tier Tribunal had erred in law.  Rather, it should have considered whether the work done in Ireland was, by its nature, likely to cause PD D8 and made the necessary findings of fact to allow it to do so.

8. I gave permission to appeal, inviting the parties to make submissions, if they wished, contending that the decision that the claim fell to be dealt with (in the first instance) under Irish law was, because of the particular structure of Article 57 (1), not an outcome decision capable of being appealed.  Nobody has sought to do so and I proceed on the basis, more likely to deliver an effective remedy under this provision of European law, that it is such a decision.

9. I further indicated:

(a) my provisional view that the Secretary of State was correct, but

(b) that if indeed he was, it was necessary to establish whether the conditions of entitlement to benefit under Irish law are satisfied, for if they were not, the claim became the UK’s responsibility.

10. Clydeside Action on Asbestos, representing Mrs F, argued:

as to (a), the tribunal’s comparative approach, under which it held that Mr F had not been exposed to the same risk in the UK and Ireland, was correct. The argument was based on the wording in the heading to Article 57, which refers to exposure “to   the same risk in several Member States”; and

as to (b), if lung cancer is not a prescribed disease under the law of the second Member State, in this case Ireland, the conditions of the legislation of that Member State could not be satisfied.

11. As to (a), in my view the reference to “the same risk” in the heading is not looking at whether there was the same level or degree of risk, a matter which it would be very hard to quantify with the necessary degree of exactitude.  Rather, I consider that (as befits a heading) it is effectively shorthand for the risk that arises where a person “pursue[s] an activity which by its nature is likely to cause that disease “, as set out in the body of Article 57.  If a person has pursued such an activity in more than one Member State it is therefore the “same” risk.  It follows that the Secretary of State is correct in his primary contention and that the First-tier Tribunal erred in law.

12. It is in dispute but for present purposes I assume, without deciding, that Mr F did in Ireland “pursue an activity which by its nature is likely to cause that disease.”

13. However, that is not the end of the matter.  As foreign law has to be proved by evidence, I invited the parties to submit evidence as to the position under Irish occupational injuries law.  Mrs F’s representative helpfully did so in the form of the leaflet issued by the Irish Department of Social Protection entitled “Prescribed Occupational Diseases under the Occupational Injuries Scheme”, which indicated that lung cancer is not a prescribed occupational disease in Ireland, so that any claim appeared doomed to fail.

14. The Secretary of State, while not providing any evidence to the contrary, was not prepared to concede the case until the Irish authorities dealt with the claim, which had apparently been made to them in September 2009, in accordance with Article 67(3) of Council Regulation (EEC) 574/72, which (in summary) would require them to forward to the UK authorities the relevant supporting paperwork in relation to the claim and a copy of the decision by the Irish authorities that the claimant did not qualify.  Somewhat protracted correspondence ensued between the UK and Irish authorities, initially without a resolution.  The Secretary of State then submitted a reply from the Irish authorities indicating that there was no record of such a claim, but in any event lung cancer was not a prescribed occupational disease.

15. I indicated that, subject to any further submission, as it was now common ground on the evidence that Mr F could not meet the conditions of the relevant Irish legislation, I could see no reason why the lack of a reply under article 67(3) of 574/72 to any claim he might have made, however regrettable, need delay the resolution of the appeal.  No further submission of substance from either party has been forthcoming.  It seems to me that article 67(3) serves the purposes of notifying the relevant Member State (on these facts the UK) that it will be required to take a decision under its legislation and of providing it with relevant information which may assist it in doing so.  In the present case however, the UK is well aware that it will have to take such a decision.  If it finds, having acquired responsibility for the claim under article 57 of 1408/71, that it needs the information which it is envisaged by article 67(3) of 574/72 that Ireland would provide, it is still open to the UK to press for it.  It may be however (I express no view) that it finds that it has access to all the information it needs anyway, with the assistance of Mrs F, in which case the UK can proceed to determine Mr F’s claim without more ado.  It seems to me wrong in principle to elevate a procedural provision about information flow under regulation 574/72 (an implementing regulation) so as to be a block on the exercise of rights under the main regulation 1408/71.

16. I therefore find as fact that Irish law does not provide for lung cancer to be an occupational disease under the occupational injuries scheme and accordingly the conditions of entitlement under Irish law are not satisfied.

17. As a result, Mr F’s claim falls to be determined under UK law.

18. I express no view on the outcome of the claim, which is a matter for the Secretary of State to determine, subject to fresh rights of appeal in the usual way.

CG Ward

Judge of the Upper Tribunal

13 October 2011