DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

 

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

 

The decision of the Nottingham First-tier Tribunal dated 15 August 2011 under file reference SC045/10/06684 involves an error on a point of law.  The First-tier Tribunal’s decision is therefore 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 28 July 2010 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)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007.

 

 

DIRECTIONS

 

The following directions apply to the hearing:

 

(1) The appeal should be considered at an oral hearing. 

 

(2) The new First-tier Tribunal should not involve the tribunal judge or medical member who was previously involved in considering this appeal on 15 August 2011.

 

(3) If the appellant has any further written evidence to put before the tribunal, in particular medical evidence, this should be sent to the tribunal within one month of the issue of this decision.  Any such further evidence will have to relate to the circumstances as they were at the date of the original decision of the Secretary of State under appeal (28 July 2010). 

 

(4) The new First-tier Tribunal 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 may be supplemented by later directions by a Tribunal Judge in the Social Entitlement Chamber of the First-tier Tribunal.

REASONS FOR DECISION

 

 

The application for an oral hearing of the appeal to the Upper Tribunal

 

1. The appellant has asked for an oral hearing of his appeal before the Upper Tribunal.  The Secretary of State’s representative has not requested such a hearing.  I have considered the appellant’s request under rule 34 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698).  I refuse his application for an oral hearing of the appeal for the following reasons.

 

2. The appellant asks for an oral hearing because he believes that the original assessment of his disablement at 2% for the purpose of his claim for industrial disablement benefit is too low.  Understandably, he says that he cannot see how this assessment can be increased without hearing from him in person. However, it is important to realise that the Upper Tribunal’s role is confined to correcting the First-tier Tribunal (FTT) on issues of law.  It is not the job of the Upper Tribunal to embark on a further investigation of the facts of the case and to make assessments of disablement.  In addition, the FTT (but not the Upper Tribunal) can sit with a specialist medically qualified panel member. 

 

3. An oral hearing before the Upper Tribunal is unnecessary and disproportionate.  It would cause further delay and inconvenience and not give the appellant what he ultimately seeks.  He will, of course, have the opportunity, as is just and fair, to have his say at a re-hearing before a different FTT as a result of my decision.

 

The Upper Tribunal’s decision in summary

 

4. The appellant’s appeal to the Upper Tribunal is allowed.  The FTT’s decision is set aside as having no effect.

 

5. The case now needs to be reheard by a new First-tier Tribunal (FTT). I cannot predict what will be the outcome of the re-hearing.  The fact that this appeal to the Upper Tribunal has succeeded on a point of law is no guarantee that the re-hearing of the appeal before the FTT will succeed on the facts. 

 

6. The new FTT will have to consider first whether or not the appellant’s osteoarthritis of the knee was caused by his work as a coal miner.  If they decide it was, they will then have to decide on the appropriate assessment of the disablement.  The new tribunal may reach the same, or a different, decision to that of the previous tribunal.  It all depends on the factual findings that the new tribunal makes.

 

The background to the appeal to the First-tier Tribunal

 

7. The appellant is a 62-year-old man who worked as a coal miner between 1974 and 1986.  On 15 October 2009 he claimed industrial disablement benefit for prescribed disease (PD) A14 (osteoarthritis of the knee).  He said on his claim form that he had started having problems with his knees in 1980.

 

8. On 19 May 2010 a doctor examined the appellant on behalf of the Department.  The examining doctor recorded the appellant as telling him that “the symptoms started in approx 1980 and have got progressively worse over the years.” The examining doctor diagnosed PD A14 but recorded the loss of faculty as starting on 1 January 1995 – no explanation was given for the choice of that date.  The doctor expressed the opinion that the appellant had “slight osteoarthritis in knees, which is causing overall minimal functional impairment”.  He assessed the resulting disablement at 2% for life.

 

9. On 28 July 2010 the decision maker accepted the examining doctor’s advice and wrote to the appellant accordingly. The appellant lodged an appeal.  His (then) representative sent in a computer print-out summary of the GP’s records and an x-ray report from August 2009.  The GP records indicated that the first consultation for osteoarthritis was in January 2009 (although the summary notes for the period before 2003 were very limited). The x-ray report noted “bilateral patella-femoral OA [osteoarthritis] with early OA of the knee joints.  Early lateral compartment meniscus calcification on the left with also early right lateral compartment meniscus degeneration.”

The appeal to the FTT

 

10. The appellant attended a hearing at the FTT in Nottingham on 15 August 2011.  Although the front page of the FTT’s record of proceedings notes the presence only of the appellant and his wife, his representative was apparently also there.  The record of proceedings starts as follows: “Tribunal sees the representative first in the light of the additional GP evidence served by Appellant. Introductions; Warning given – GP notes indicate onset in 2009 and he left the pit in 1986.” 

 

11. The appellant’s response to that warning was that the problems with his knee started in the 1980s but that they had worsened in the last couple of years.  He agreed that he had first had treatment in 2009 but said that he had had aches and pains in his knees since the 1980s and had been kept awake at night.  He had continued working throughout as he had had to earn a living.

 

12. The FTT dismissed the appellant’s appeal but revised rather than confirmed the Secretary of State’s decision.  The tribunal’s decision was that the appellant had not suffered from PD A14 at all.

 

13. The FTT’s statement of reasons dealt with the procedural issue at the start of the hearing as follows:

 

“5. In view of the additional information produced to the tribunal the appellant’s representative was advised of the tribunal’s concerns in the light of the evidence that he might not be able to establish any causal connection between the occupation and the disease though this had not been in issue for the respondent on the information it had at the time of making the original decision.  The appellant was given a warning that the tribunal was concerned that he might not be able to establish a connection since it appeared from the evidence that onset of arthritis appears to have been 23 years after he left the mining industry.”

 

14. After reviewing the evidence, the FTT explained its reasoning for concluding that there was no causal connection between the appellant’s work as a miner and his knee problems as follows:

 

“10. The tribunal accepts that the appellant suffers from osteoarthritis of the knees and that it gives him minimal functional disability.  The tribunal does not accept that the appellant’s arthritis is connected with his occupation.  The GP medical evidence and the x-ray report in 2009 is consistent with early onset and the appellant’s own evidence is that he had no treatment for osteoarthritis of the knees until 2009.  As this is 23 years after the appellant ceased to be a coal miner the tribunal finds that there is no causal connection between his arthritis [UT Judge’s note: presumably the FTT meant ‘occupation’] and the onset of the osteoarthritis.  The tribunal revised the respondent’s decision accordingly.”

 

The proceedings before the Upper Tribunal

 

15. The appellant applied for permission to appeal to the Upper Tribunal, arguing that the date of onset had been earlier. He added that it had not been made clear to him by the FTT that he had needed to produce evidence that he had suffered from knee problems at an earlier stage in order to show the link with his occupation.  He produced a letter from a colleague, a former mine deputy who had been in charge of his team at the colliery, who stated that he had been aware of the appellant’s knee problems, as the appellant always wore knee supports (given the hot conditions, the men typically wore shorts underground), had suffered from swelling of the knee and had been given permission to leave work early on occasion because of these difficulties.

 

16. Judge Jacobs gave the appellant permission to appeal. In doing so he identified two further issues for consideration on the appeal.  The first was whether the FTT had ensured that the appellant had properly understood the significance of the warning.  The second related to the x-ray report, which had referred to “early” osteoarthritis of the knee but to “bilateral patella-femoral OA” without any such “early” qualification.  Judge Jacobs asked whether bilateral patella-femoral osteoarthritis could not fall within the definition of the knee for the purposes of PD A14.  The appeal has since been transferred to me for decision.

 

17. Ms Denise Taylor, who now acts for the Secretary of State in these proceedings, supports the appeal to the Upper Tribunal, although not on all the points raised.  She proposes that the case should be sent back to a different FTT for a fresh hearing.

 

The first reason why the FTT’s decision involves an error of law

 

18. The FTT’s decision involves an error of law because the tribunal did not explain adequately why it did not accept the appellant’s evidence about when he first started suffering knee symptoms.  The appellant had given the same account about his knee problems starting in the 1980s to both the examining doctor and to the FTT. The FTT recorded the appellant’s evidence but failed to explain what it made of that account and what significance, if any, was to be attached to it.  It was not in dispute that the appellant had first received medical treatment for the problem in 2009. However, as Ms Taylor submits, the issue is when the appellant first suffered a relevant loss of faculty.  He may have noticed problems with his knees at an earlier date but at that time they may not have unduly interfered with his functional ability.  Indeed, the appellant’s case was that he had no option but to “grin and bear it”.

 

19. I therefore set aside the FTT’s decision for error of law and direct a re-hearing before a new tribunal, subject to the directions set out above.

 

20. I acknowledge that the diagnosis of A14 is fraught with difficulties. There are a number of potential causes of osteoarthritis of the knee, unrelated to occupational background, such as genetic factors, obesity and previous knee trauma (often sports injuries).  The condition is common in the general population and it is also well established that the older people get, the more likely they are to experience osteoarthritis of the knee, again regardless of their employment history.

21. These difficulties are compounded by the long latency period for the development of the condition.  This is recognised in the prescription requirement of 10 years’ employment underground in a coal mine.  Furthermore, the symptoms may not necessarily become apparent during the period of prescribed employment.  As the Department’s own medical advice to examining doctors notes, “development of arthritic changes many years after leaving the occupation is not unlikely” (DWP Medical Services, Update to Standard – Issue 41/2009, 23 October 2009).  My understanding is that as a rule of thumb (and it is no more than that), if there have been no effects evident during the period of employment, doctors would normally expect some evidence of changes within 5 to 10 years of leaving work as a coal miner.

 

22. On that basis, and on one reading, the present tribunal’s finding that the appellant’s osteoarthritis of the knee was not caused by his employment is perhaps understandable, given the 23 year gap between leaving the relevant work and both seeking medical treatment and having x-ray evidence of early changes.  However, the failure to address the appellant’s clear evidence about the knee problems he first experienced in the 1980s – when he would have been aged in his 30s – undermined the tribunal’s conclusion. This demonstrates the importance of taking a full occupational and social history in such cases.

 

23. I now need to deal with the two further matters raised by Judge Jacobs when giving permission to appeal.

 

The FTT’s warning on causation

 

24. Ms Taylor suggests that the form of the warning given at the start of the hearing is unclear from the record of proceedings.  She also notes that it is unclear whether an adjournment was offered.  She suggests that there may have been a breach of natural justice, as arguably the appellant should have been offered an adjournment to enable him to formulate an argument to counter the possibility of the FTT giving a less favourable decision than the one under appeal.

 

25. I am not satisfied that the form of the FTT’s warning itself was unclear.  It seems evident from the record of proceedings and the statement of reasons that the FTT was raising, in the light of the recently produced medical evidence, the question of whether the appellant’s osteoarthritis of the knee had in fact been caused by his work as a coal miner or by other factors.

 

26. This was, however, a brand new point. The occupational link had been accepted by the Department on the evidence previously available. The appellant had attended the tribunal on the day expecting the argument to be about the appropriate level of the assessment of disablement, not about the logically prior question of whether his knee problems had been caused by work in the mines.

 

27. Moreover, in deciding the appeal, the FTT “need not consider any issue which is not raised by the appeal” (Social Security Act 1998, section 12(8)(a)).  There must be a conscious exercise of this discretion in a judicial manner, which should be explained in any statement of reasons (R(IB) 2/04, paragraphs 93 and 94).  Paragraph 5 of the FTT’s statement of reasons (see paragraph 13 above) just about meets that test.

 

28. Given my conclusions above on the adequacy of the FTT’s reasoning, I do not need to reach a firm finding as to whether or not there was a breach of natural justice.  It is unfortunately unclear from the FTT’s record of proceedings what sort of opportunity (if any) the appellant was given to discuss the implications of the tribunal’s warning with his representative. Moreover, the fact that the appellant was represented (and I note that the appellant has since dispensed with the services of that representative, believing that he can do a better job himself with his wife’s assistance) does not excuse a tribunal’s failure to offer an adjournment in appropriate cases.  The whole point of such an adjournment is to provide the appellant with a meaningful opportunity to meet the changed nature of the case.  Furthermore, the very fact that the appellant in this case has subsequently been able to obtain a statement from the deputy who supervised his team – and who might even be able to act as a witness at the re-hearing – is arguably evidence itself of the need to offer an adjournment.

 

Patella-femoral osteoarthritis and the definition of the knee for PD A14

 

29. Judge Jacobs posed the question, when giving permission to appeal, whether the simple reference in the x-ray report to patella-femoral osteoarthritis (with no mention of it being early in onset), in contra-distinction to the separate reference to “early OA of the knee joints”, was sufficient by itself to fall within the definition of the knee for the purposes of PD A14.

 

30. The appellant, understandably enough, has not directly addressed this definitional and medical issue.  He is simply anxious to point out that he has been suffering knee problems as a result of osteoarthritis and has been wearing knee supports for most of his working life.

 

31. Ms Taylor, for the Secretary of State, has sought advice from the Department’s medical policy branch.  Their advice is to the effect that patella-femoral osteoarthritis refers to osteoarthritis of the knee cap, the function of which is to protect the knee joint but which (it is said) does not form part of the knee joint itself.  The medical policy branch took the view that the Industrial Injuries Advisory Council (IIAC) had considered only the knee joint in relation to this disease, and that the knee cap is accordingly not subject to the prescribed disease known as A14.

 

32. So is patella-femoral osteoarthritis within the meaning of the statutory phrase “osteoarthritis of the knee”?  In plain English, and at the risk of over-simplification, is the knee cap part of the knee for these purposes?  I refer to the competing constructions as either the broader definition (including the knee cap and patella-femoral osteoarthritis) or the narrower reading (excluding the knee cap and patella-femoral osteoarthritis).

 

33. The legislation itself, which I have to say is not a model of clarity or precision, provides no real clues.  It refers to the prescribed disease as “osteoarthritis of the knee”, and the relevant regulations contain no definition of the “knee” for these purposes (Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985 (SI 1985/967).  Previous case law on other prescribed diseases associated with the knee does not appear to assist on the particular issue arising in the present appeal (see e.g. Social Security Commissioner’s decision R(I) 5/98).

 

34. The IIAC Report which led to the prescription of A14 describes the knee joint as “a complex joint, formed where the end of the thigh bone (femur) and the top of the leg bone (tibia) meet, and is covered at the front by the knee cap (patella)” (Osteoarthritis in the knee in coal miners (Cm 7440, August 2008), paragraph 20).  This statement might be read either way, as implying that the knee cap is, or is not, seen as part of the knee joint itself. Osteoarthritis of the knee itself is said to be “characterised by destruction of the cartilage surrounding the knee joints and various alterations to the bone and the joint space between bones” (paragraph 1). On one reading, the discussion in the IIAC Report certainly appears to assume that osteoarthritis of the knee refers to changes in the joint between the bottom of the femur and the top of the tibia (see e.g. paragraph 21 and Figure 1), with no mention of patella-femoral osteoarthritis.  This narrower approach is arguably supported by the Council’s proposal (which I note, however, was not adopted by the regulations) that, if possible, diagnosis of osteoarthritis of the knee be based on x-ray evidence of Stages 3 or 4 on the Kellgren-Lawrence scale (paragraph 71 and Appendix 2).  This is a standard x-ray grading system for measuring the severity of osteoarthritis of the knee, and focuses on changes in the joint space between the femur and tibia.

 

35. However, the broader definition is supported by medical dictionaries, which typically define the knee as the part of the leg formed by the femur, tibia and patella.  Any first year medical student knows that the knee joint is a complex synovial (freely movable articulated) joint comprising three compartments.  The first and second are the inner (medial) and outer (lateral) compartments formed by the joining of the femur and the tibia; the third compartment is the patello-femoral joint, comprised of the patella and the front part of the femur.  The first two compartments are most important for walking on flat ground, while the patello-femoral joint is used more in walking on inclined terrain, kneeling and squatting.  These latter functions, of course, are typically associated with underground mining, although in the general population patella-femoral osteoarthritis is more commonly associated with women patients.  A very quick internet search of the relevant medical literature reveals an article by R.S. Hinman and K.M. Crossley entitled “Patellofemoral joint osteoarthritis: an important subgroup of knee osteoarthritis” (Rheumatology (2007) 46 (7): 1057-1062).

 

36. So is the broader or the narrower interpretation of “osteoarthritis of the knee” the correct one?  There are many instances in the case law of the Commissioners and the courts consulting IIAC reports to help resolve questions of statutory interpretation (although typically this has been in the context of the definition of the prescribed occupations, rather than the meaning of the prescribed disease itself).  However, those authorities also show that if the statutory meaning is clear and unambiguous then IIAC’s reports cannot be mined for material to qualify or alter the legislative language (see e.g. R(I) 15/75 at paragraph 17 and R(I) 4/99 at paragraph 9).

 

37. In my view the meaning of the statutory expression “osteoarthritis of the knee” is unambiguous.  It does not define the site in the knee.  It means any osteoarthritis of the knee, for the reasons set out at paragraph 35 above.  The view advocated by the Department’s medical policy branch actually involves reading “osteoarthritis of the knee” as though it read “osteoarthritis of the knee joint excluding the patella”, or perhaps, to be more precise “osteoarthritis of the medial and/or lateral compartments of the knee joint but excluding patella-femoral osteoarthritis”. If that was indeed the intention, then those responsible for drafting the legislation could have said as much, but they did not.

 

38. In the present case there was therefore a further error of law by the FTT in that it appeared to have assumed that it was only the “early” osteoarthritis of the lateral compartment of the knee which was relevant to the diagnosis of A14.

 

39. This appeal succeeds for the reasons set out at paragraphs 18 and 38.  I set aside the FTT’s decision and direct a re-hearing.

 

Signed on the original Nicholas Wikeley

on 20 June 2012 Judge of the Upper Tribunal