Upper Tribunal (Administrative Appeals Chamber)

DECISION OF THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

 

The claimant's appeal to the Upper Tribunal is allowed. The decision of the Leeds First-tier Tribunal dated 24 April 2012 involved an error on a point of law and is set aside. The case is remitted to a tribunal within the Social Entitlement Chamber of the First-tier Tribunal for reconsideration in accordance with the directions given in paragraph 39 below and further procedural directions to be given by a district tribunal judge (Tribunals, Courts and Enforcement Act 2007, section 12(2)(b)(i)).

 

 

REASONS FOR DECISION

 

1. Permission to appeal was given by Judge Lloyd-Davies on 15 August 2012. There have been two rounds of written submissions in accordance with the directions given then and further directions dated 21 December 2012. The appeal has now been transferred to me for decision. It raises some difficult questions of law, but neither party has requested an oral hearing. In the circumstances, especially the lapse of time since the second round of written submissions was completed, I am satisfied that a decision can properly be given without a hearing.

 

2. The benefit in issue is reduced earnings allowance (REA), claimed in respect of prescribed disease number A11 (PD A11), formerly known as vibration white finger. The appeal turns on the proper interpretation of the latter part of sub-paragraph (1) of paragraph 11 of Schedule 7 to the Social Security Contributions and Benefits Act 1992:

 

“(1) Subject to the provisions of this paragraph, an employed earner shall be entitled to a reduced earnings allowance if—

 (a) he is entitled to a disablement pension or would be so entitled if that pension were payable where disablement is assessed at not less than 1 per cent.; and

 (b) as a result of the relevant loss of faculty, he is either—

 (i) incapable, and likely to remain permanently incapable, of following his regular occupation; and

(ii) incapable of following employment of an equivalent standard which is suitable in his case,

or is, and has been at all times since the end of the period of 90 days referred to in section 103(6) above been, incapable of following that occupation or any such employment;

but a person shall not be entitled to reduced earnings allowance to the extent that the relevant loss of faculty results from an accident happening on or after 1st October 1990 (the day on which section 3 of the Social Security Act 1990 came into force [and a person shall not be entitled to reduced earnings allowance—

 (i) in relation to a disease prescribed on or after 10th October 1994 under section 108(2) above; or

(ii) in relation to a disease prescribed before 10th October 1994 whose prescription is extended on or after that date under section 108(2) above but only in so far as the prescription has been so extended]”

 

The words in square brackets, the crucial words, were added with effect from 10 October 1994 by regulation 14A of the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985, inserted by Amendment Regulations (SI 1994 No 2343) made under the authority of section 109(2) of the 1992 Act. By virtue of Schedule 2 to the Prescribed Diseases Regulations the reference to the date of an accident is to be read as a reference also to the date of onset of a relevant prescribed disease.

 

The disablement benefit decisions

3. The claimant made a claim for industrial injuries disablement benefit in respect of PD A11 on 10 November 2009, apparently saying that he had suffered from the symptoms since 1986 as a result of his work from 1977 to 1994 as a colliery electrician. I say “apparently” because all the documents held by the First-tier Tribunal on the appeal resulting from the initial disallowance of the claim have been destroyed under the standard document retention policy (it not having been realised until too late that a subsequent REA claim would lead to another appeal). The Department has produced no documents to throw any further light on the disablement benefit claim.

 

4. It needs to be recorded at this point that the entry in Schedule 1 to the Prescribed Diseases Regulations relating to PD A11 was amended with effect from 1 October 2007 by the Social Security (Industrial Diseases) (Prescribed Diseases) Amendment (No 2) Regulations 2007 (SI 2007 No 1753). Schedule 1 operates in the way provided for in regulation 2(a):

 

“each disease set out in the first column of Part I of Schedule 1 hereto is prescribed in relation to all persons who have been employed on or after 5th July 1948 in employed earner’s employment in any occupation set against such disease or injury in the second column of the said Part;”

 

The conditions under which the Secretary of State may prescribe a disease or injury in relation to any employed earners are set out in section 108(2). He must be satisfied that:

 

“(a) it ought to be treated, having regard to its causes and incidence and any other relevant considerations, as a risk of their occupations and not as a risk common to all persons; and

 (b) it is such that, in the absence of special circumstances, the attribution of particular cases to the nature of the employment can be established or presumed with reasonable certainty.”

 

5. Prior to 1 October 2007 the first column in Schedule 1 relating to PD A11 referred to episodic blanching of fingers, to particular extents, throughout the year, with the label “vibration white finger” in brackets at the end. The amendment substituted a completely new entry with two alternative parts. (a) referred to blanching, rather more precisely defined than before, and (b) referred to a reduction in sensory perception and manipulative dexterity with numbness or tingling. The label in brackets was not reproduced, but there was a condition applying to both parts that the symptoms be caused by vibration. There was only a minor, more restrictive, amendment to the entry in the second column.

 

6. The claim of 10 November 2009 was initially disallowed on the ground that the claimant did not meet the diagnosis conditions. He appealed successfully. The decision notice of the First-tier Tribunal of 10 December 2010, consisting of Tribunal Judge G P Smith and a member who was a registered medical practitioner, was as follows (see page 35 of the papers):

 

“The appeal is allowed.

The decision of the Secretary of State issued on 01/04/10 is set aside.

The appellant has suffered from Prescribed Disease No. A11 from 1986 to date. The relevant loss of faculty is reduced manual dexterity and discomfort.

The extent of the resulting disablement is assessed at 5% for the period from 10/11/09 (the date of claim) for life.

This is a final assessment.”

 

7. Following the issue of the decision notice an officer of the Department wrote to the clerk to the tribunal as follows:

 

“Please elaborate on the decision. An exact date of onset is required. The start date should be either 91 days from the date of onset or 1.10.07 if the award was given under the new rules. There is insufficient information on the decision to know if it is under the new or old rules.”

 

8. The clerk replied as follows on 14 January 2011, saying that the terms had been directed by Judge Smith:

 

“The Tribunal found that the appellant had had PD A11 from 1986. This can be particularised if necessary but such a date would be highly speculative – given the passage of time.

However he only claimed on 10th November 2009. This is clearly more than 91 days after 1986 and thus the tribunal ties the award to the date of claim 5% is a non paying amount but it might be aggregable with other awards in existence at 10th November 2009 which the Tribunal believed the first possible payment date.

Please let me know … if any amendment is needed.”

 

9. The officer’s response was this:

 

“A date of onset would be appreciated please. Would you please confirm if the award has been given under the old (pre 01.10.07) rules, or the new (post 01.10.07) rules.

The assessment start date must be 91 days from the date of onset, or 01.10.07 if the award is given under the new rules.”

 

 

10. On 28 January 2011 Judge Smith wrote on an interlocutory referral form (and I am satisfied that the writing is his with his signature in the form of initials rather than a full signature):

 

“The position was considered under the new rules for A11 which came into effect on 1.10.07.”

 

11. The officer then took the view that the tribunal of 10 December 2010 had found that the claimant had suffered from PD A11 from 1 January 1986 and had assessed disablement at 5% from 1 October 2007 for life. His or her own copy of the decision notice was annotated to that effect, saying that the assessment start date was accepted as 1 October 2007 as the claim had been considered under the new rules (see page 1e). A decision was given on 9 February 2011 that the claimant was not entitled to disablement benefit from and including 1 October 2007 because the assessment of disablement was less than 14%.

 

12. It is clear that the claimant did not receive copies of any of the correspondence to and from the clerk and Judge Smith or of the annotated decision notice until they were included in the papers for his REA appeal. It is also clear that neither party specifically requested a statement of reasons and that Judge Smith did not take the officer’s queries as implied requests for a statement and did not consider that a statement was necessary whether or not requested. Nor was any amendment made to the original decision notice by the tribunal. I come back below to the question whether the officer’s queries, apart from the request for a precise date of onset, were necessary or relevant in the context of the claim for disablement benefit.

 

The claim for reduced earnings allowance

13. The claimant immediately put in a claim for REA on which he stated that he had been awarded 5% loss of faculty from 1986 to date by the tribunal of 10 December 2010 and so had an assessment of at least 1% prior to 10 November 2009. The claim was disallowed on 11 February 2011. The letter of the same date gave this fairly opaque explanation:

 

“Your award for vibration white finger is based on the change to the schedule of 1/10/2007. Your award is post 1/10/90 the end date for claims to Reduced Earnings allowance.”

 

14. Unsurprisingly, the claimant was not satisfied by that explanation and telephoned to ask where the date of 1 October 2007, never mentioned by the tribunal of 10 December 2010, had come from and asking for reconsideration. The officer who on 7 March 2011 declined to change the decision recorded a more coherent explanation:

 

“[T]he award of A11 has been given based on the new rules. Although the date of onset is 1.1.86, the start date of the award has to be restricted to 1.10.07. There is no entitlement to reduced earnings allowance for a disease prescribed before 10.10.94 whose prescription is extended on or after that date and the claim relates to that extension.”

 

However, that explanation was not included in the notification letter to the claimant. It was though in substance set out as the decision under appeal in the Secretary of State’s written submission to the First-tier Tribunal on the claimant’s appeal. The effect of the final part of paragraph 11(1) of Schedule 7 to the 1992 Act was briefly set out in paragraph 2 of Section 5 of the submission.

 

15. The tribunal sitting on 22 November 2011 adjourned for the Department to make a further submission, providing a full copy of its submission to the tribunal of 10 December 2012 (in the light of the destruction of the First-tier Tribunal file) and of the original unaltered decision notice. The Department supplied the latter, but not the former, and the submission added little beyond the unjustified assertion that the Tribunal Service had clarified that the assessment of disablement should start from 1 October 2007.

 

The decision of the tribunal of 24 April 2012

16. There is some doubt about the composition of the tribunal which made the decision on the claimant’s REA appeal on 24 April 2012. The record of proceedings and the decision notice (which had functioned as the statement of reasons) contains the names of the tribunal judge and a member who was presumably a registered medical practitioner. However, at the beginning of the record of proceedings the judge wrote that as the appeal did not have medical input she would make the decision as an 01 judge and the decision notice used the pronoun “I” several times in describing enquiries made and findings. If the appeal was decided by the tribunal judge alone it seems to me that there was a breach of article 2 of the First-tier Tribunal and Upper Tribunal (Composition of Tribunal) Order 2008 in combination with the Senior President of Tribunals’ Practice Statement on Composition. Under that Practice Statement all appeals raising issues relating to industrial injuries benefit (except for declarations of industrial accident) must be heard by a tribunal judge and a member who is a registered medical practitioner. So there might be an error of law in the absence of jurisdiction of the tribunal as constituted by the tribunal judge alone.

 

17. Be that as it may, the tribunal disallowed the appeal. The argument of the claimant’s representative, a welfare rights officer Mr Tulley, that because the date of onset of 1 January 1986 was before the cut-off date of 1 October 1990 there was entitlement to REA, was rejected. The tribunal concluded that paragraph 11(1) of Schedule 7 to the 1992 Act excluded diseases prescribed before 10 October 1994 whose prescription was extended on or after that date in so far as the prescription had been extended. It was found that “DTJ Smith’s confirmation that this case was being decided under the new rules covers this point.”

 

The appeal to the Upper Tribunal

18. On 5 May 2012 the tribunal judge refused an application for a setting aside of the decision of 24 April 2012, but treated the application as also an application for permission to appeal, which she granted, saying that it would be advantageous to have a decision from the Upper Tribunal on the point (presumably the interpretation of paragraph 11 of Schedule 7 to the 1992 Act).

 

 

The interpretation of paragraph 11 of Schedule and the “extension” of a prescription

19. In his observations attached to the case management directions of 15 August 2012, Judge Lloyd-Davies suggested that:

 

“an extension of prescription refers to the case where the class of persons to which the PD applies is extended – see PD Reg 2(a) – and not where the PD itself is changed.”

 

After the representative of the Secretary of State had declined to adopt that suggestion in the submission of 16 October 2012, Judge Lloyd-Davies asked for further comment after giving this further background to his suggestion:

 

“[T]he actual wording in paragraph 11(1)(ii) is `extended … under section 108(2) above.’ Section 108(2) is concerned with the identification of those groups of employed earners for whom a disease ought to be treated as a risk of their occupation.”

 

The Secretary of State’s representative replied in the submission of 5 February 2013 that section 108 was concerned with the general provisions in respect of prescribing diseases as well as prescribing defined occupations. It was submitted that the notion of “extension” in paragraph 11(1)(ii) was not limited to an extension of the scope of the occupation(s) covered and that the primary reference to a disease and its prescription showed that that was so. The representative submitted that the amendment from 1 October 2007 extended the prescription of the disease identified in PD A11 by newly including persons who suffered only sensorineural symptoms. Mr Tulley on behalf of the claimant has not engaged with the arguments about the interpretation of paragraph 11(1).

 

20. I find the submission on behalf of the Secretary of State on this point entirely cogent and convincing. Section 108(1) of the 1992 Act makes industrial injuries benefits payable in respect of prescribed diseases (and injuries although none have been prescribed, so that I refer only to diseases from now on). Then subsection (2) lays down the conditions under which the Secretary of State may prescribe (ie prescribe by regulations: section 122(1)) the disease in relation to any employed earners. Those provisions have be interpreted as giving the Secretary of State the power to define in regulations both the diseases that can give rise to an entitlement to industrial injuries benefits and the categories of employed earners in relation to which that consequence can follow. It would be absurd and would undermine the whole scheme if those provisions were regarded as only giving the power to prescribe categories of employed earners. Accordingly, the prescription process under section 108 can only be regarded as covering the definition of both diseases and occupational groups. Then I can see nothing in the fact that the reference in paragraph 11(1) of Schedule 7 is to section 108(2) to suggest that extension of the prescription is limited to the definition of occupational groups covered. In my judgment, contrary to Judge Lloyd-Davies’ suggestions, the concern in section 108(2) with the identification of those groups of employed earners for whom a disease ought to be treated as a risk of their occupation is directed just as much (if not more so in the light of paragraph (b)) at the identification and definition of the disease concerned as at the identification of the appropriate occupational groups.

 

21. I conclude that paragraph 11(1)(ii) of Schedule 7 to the 1992 Act applies where there has on or after 10 October 1994 been an extension of the existing definition of a prescribed disease in the first column of Schedule 1 to the Prescribed Diseases Regulations. I agree with the Secretary of State that, although there might possibly in other cases be difficult questions about whether a particular amendment or replacement of a prescription amounts to an extension, in the case of the 1 October 2007 amendment in relation to PD A11 there was plainly an extension of the prescription in the form of the addition of the alternative conditions in sub-paragraph (b) relating to sensorineural symptoms. Accordingly, in order for the present claimant’s claim for REA to be successful, as well as satisfying the other conditions of entitlement (discussed below), he would also have to show that the entitlement that would otherwise arise is not in relation to that extension of the prescription for PD A11. In practice, that means that he would have to show that, if that extension had never occurred, there would have been found to be a relevant loss of faculty from a date prior to 1 October 1990 on the basis of the pre-1 October 2007 prescription for PD A11. I come back below to the working out of that.

 

The effect of the decision of the tribunal of 10 December 2010

22. A number of preliminary points of principle need to be established. The first is that on a first claim for disablement benefit in respect of a prescribed disease the date of onset to be identified is the actual date of onset of the disease as currently prescribed at the date of claim. It does not in general matter how far before the date of claim that is, provided it is on or after 5 July 1948. Nor does it in general matter that the date of onset falls prior to the date that the disease first became prescribed, or prescribed in a form that the claimant satisfies. However, as decided by Mr Commissioner Goodman in R(I) 4/96, there cannot be any award of benefit prior to the date on which the disease is prescribed or prescribed in the form that the claimant satisfies. Thus, in the present context, the tribunal of 10 December 2010 in considering the claim for disablement benefit made on 10 November 2009 was required to consider the form of the prescription of PD A11 in force at that date (the new form) and, if satisfied that the claimant did suffer from that disease, what was the actual date of onset, whether before or after 1 October 2007.

 

23. That is confirmed in relation to the October 2007 amendment of the prescription of PD A11 in the decisions of Judge Howell QC in CI/3482/2008, [2009] UKUT 41 (AAC), and of Judge Gamble in CSI/541/2008, [2009] UKUT 39 (AAC). Both of those decisions are available on the Upper Tribunal (AAC) website. In paragraph 5 of his decision Judge Howell wrote:

 

“There is no doubt in my judgment that on its plain wording that prescription applies the new system of alternative diagnostic tests, either one of which can qualify a claimant without the other, to all claims for benefit for PD A11 made on or after it came into force on 1 October 2007, whether they relate to periods of assessment before or after that date. The only relevant qualifications needing to be made are that:

(a) a claimant will (on general principle: cf R(I) 4/96) be unable to rely on the new sensory symptom test to establish actual entitlement to benefit for any benefit week before 1 October 2007, because until then the legislation did not and does not provide for him or her to have it; and

(b) [a limited transitional provision in regulation 3 of the 2007 amending regulations has effect].”

 

Judge Gamble’s decision, signed a few days before, is consistent with the reasoning in CI/3482/2008.

 

24. Regulation 3 provided that the amendment was not to apply to a question relating to blanching of a claimant’s fingers where the claim was made before 1 October 2007 or was made within three months after that date in respect of a period beginning before 1 October 2007. In paragraph 6 of his decision Judge Howell said this about that provision:

 

“[I]t is plain in my judgment that its only function is to preserve the old `episodic blanching’ condition in its previous form for those claims which depend on a blanching diagnosis and had already been made before the change in the prescription, or within 3 months after it so as to include any period before. Insofar as the new blanching condition is stricter, this enables a claimant with a claim spanning the introduction of the change still to get the benefit of the old one (on a continuing basis, so long as his periods of assessment on the same claim remain unbroken: regulation 392)(b)); the three-month overlap period reflecting the provisions of regulation 19(1) and Schedule 4 Social Security (Claims and Payments) Regulations 1987 … by which entitlement to disablement benefit may be claimed so as to extend back for up to 3 months before the actual date of claim.”

 

25. The second preliminary point is that, by virtue of regulation 6(2)(b) of the Prescribed Diseases Regulations, on a first claim for disablement benefit the date of onset is to be “the day on which the claimant first suffered from the relevant loss of faculty on or after 5th July 1948”. The “relevant loss of faculty” is the loss of faculty resulting from the prescribed disease. Then regulation 6(1) provides that the date of onset as determined by regulation 6 is to be treated as the date of onset:

 

“for the purposes of any subsequent claim in respect of the same disease suffered by the same person, so however that—

(a)   any date of onset determined for the purposes of that claim shall not preclude fresh consideration of the question whether the same person is suffering from the same disease on any subsequent claim for or award of benefit; and

(b)  if, on the consideration of a claim, the degree of disablement is assessed at less than one per cent., any date of onset determined for the purposes of that claim shall be disregarded for the purposes of any subsequent claim.”

 

Mr Commissioner Rowland decided in paragraphs 14 and 18 of R(I) 2/04 that as a result a date of onset determined in a disablement benefit decision under the Social Security Act 1998 regime is conclusive for the purposes of a subsequent claim for REA in relation to the same disease. That was approved by Mr Commissioner Howell QC in R(I) 5/04. Neither of those decisions expressly considered what the effect is of sub-paragraph (a) of regulation 6(1). However, in my judgment and in the light of the unequivocal statements in those reported decisions about the conclusive effect of a positive determination of a date of onset, sub-paragraph (a) can only be read as allowing reconsideration on a subsequent claim of whether a claimant is still suffering from the disease, but not allowing any reconsideration of the date of onset on the original determination.

 

26. Section 17(2) of the Social Security Act 1998 allows for a finding of fact or other determination necessary to or embodied in a decision (ie an “outcome” decision such as a decision on entitlement or otherwise to disablement benefit) to be conclusive for the purpose of any further decisions so far as provided by regulations. Regulation 6(2) has that effect. Otherwise mere findings of fact or determinations along the way to an outcome decision are not conclusive for the purposes of other decisions, section 17(1) only making such decisions final.

 

27. The third preliminary point is that section 103(5) of the 1992 Act provides:

 

“(5) In this Part of this Act `assessed’, in relation to the extent of any disablement, means assessed in accordance with Schedule 6 to this Act; and for the purposes of that Schedule there shall be taken to be no relevant loss of faculty when the extent of the resulting disablement, if so assessed, would not amount to 1 per cent.”

 

28. The fourth preliminary point is that paragraph 7 of Schedule 6 provides:

 

“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).”

 

29. The fifth preliminary point is that section 1(1)(a) of the Social Security Administration Act 1992 makes entitlement to any benefit subject to having claimed it within the time prescribed for that benefit in regulations. Regulation 19(1) of and paragraph 3 of Schedule 4 to the Social Security (Claims and Payments) Regulations 1987 makes the time for claiming disablement benefit three months immediately following any day of potential entitlement. There is no provision in law for extending that time, however good the reason for delay. Thus, entitlement to disablement benefit could not have been awarded on the claim of 10 November 2009 for any day prior to 10 August 2009. The time for claiming REA is the same (paragraph 5 of Schedule 4), so that there could have been no award of REA for any day prior to 11 November 2010, even though it might have been said to have been reasonable for the claimant to await the outcome of his disablement benefit claim.

 

 

30. What then did the tribunal of 10 December 2010 decide? It my judgment the decision notice as signed on that day included everything that it was required or empowered to determine.

 

31. The working out of that is as follows. The claim of 10 November 2009, having been made a good deal later than three months after 1 October 2007, had to be determined in accordance with the form of paragraph A11 of Schedule 1 to the Prescribed Diseases Regulations in force from 1 October 2007, in relation to periods before that date just as much as in relation to periods from that date onwards. That follows inexorably from paragraphs 22 and 23 above. The existence of the limited transitional provision in regulation 3 of the 2007 amending regulations is confirmation that, except where it applies, there cannot be reliance on the old blanching condition in any claim for disablement benefit made on or after 1 October 2007. In the light of that, Tribunal Judge Smith’s note of 28 January 2011 (paragraph 10 above) can only be regarded as a statement of the inevitable legal position and the requests for clarification made by an officer of the Department can only be regarded as having been made under a misapprehension. The tribunal had no choice over whether or not to apply the new form of the prescription.

 

32. The tribunal’s decision was unequivocal that the claimant had suffered from PD A11 since 1986, which has in my view properly been taken to mean 1 January 1986. The finding that there was a relevant loss of faculty was plainly linked to the same date. By virtue of the provisions mentioned in paragraphs 25 and 26 above those findings are that the date of onset is 1 January 1986 and that determination is conclusive for the purposes of any subsequent claim for REA.

 

33. The tribunal then made an assessment of the resulting disablement at 5% for life from 10 November 2009, the date of claim. I think that the adoption of that date was probably a mistake and it should have been 10 August 2009 as the date on which entitlement to disablement benefit could automatically be considered under the Claims and Payments Regulations. Subject to that possible correction, that was as far as the tribunal needed or was allowed to go for the purposes of the disablement benefit claim. It was required by paragraph 7(6) of Schedule 6 to the 1992 Act not to specify the percentage degree of disablement or the period of the assessment more particularly than necessary for determining that claim. There could be no possible entitlement to disablement benefit for any period prior to 10 August 2009. The tribunal was therefore not required to be more particular about whether there was one period of assessment running from 1 January 1986 for which 5% was the appropriate assessment or whether there was a series of periods with different assessments of at least 1% culminating in 5% from 10 August 2009. I accept, though that it is a matter for the judgment of individual tribunals whether more particularised determinations are necessary in individual cases and leave out of consideration what the possible effect might be of the rules about the aggregation of assessments from different industrial injuries and diseases.

 

34. I am also satisfied that the tribunal of 10 December 2010 went as far as necessary for the purposes of any potential claim for REA. It had determined the date from which there was a relevant loss of faculty and therefore also the date of onset of PD A11. By virtue of section 103(5) of the 1992 Act (paragraph 27 above), its determination that there was a relevant loss of faculty from 1 January 1986 necessarily entailed that the extent of the resulting disablement was no less than 1%. There was no need to go any further to allow a decision to be made whether the REA condition of entitlement in paragraph 11(1)(a) of Schedule 7 to the 1992 Act was satisfied and the determination of the date of onset provided the conclusive answer in relation to the cut-off date of 1 October 1990.

 

35. In my judgment, nothing can be inferred from the decision of the tribunal of 10 December 2010 about whether it considered that the claimant would not have qualified to have PD A11 diagnosed on the pre-1 October 2007 form of the prescription. As I hope that I have demonstrated, that question simply did not arise on the appeal that the tribunal was considering. Nor can Tribunal Judge Smith’s note of 28 January 2011 be taken as any expression of opinion on such a question. It merely reflected the legal position (see paragraph 31 above). Furthermore, even if the tribunal of 10 December 2010 had made some finding along the lines that the claimant would not have been diagnosed with PD A11 on the pre-1 October 2007 form of the prescription that would not have been conclusive and binding on the decision-maker or the tribunal of 24 April 2012 for REA purposes. Only a determination of the date of onset is conclusive.

 

36. I add, though it is not necessary to the present decision, that it follows from the above that the Secretary of State’s outcome decision of 9 February 2011 on the claimant’s entitlement to disablement benefit was based on a misunderstanding of the legal position, as were the previous enquiries by the officer of the Department. The claim should have been disallowed for the period prior to 10 August 2009 because the claim for all the days in that period had not been made within the prescribed time. Then the claim could have been disallowed from and including 10 August 2009 on the ground that disablement was assessed at less than 14%. It would not then have mattered that there had been a misunderstanding about the period for which there was an assessment of disablement of at least 1%. What I think was troubling the officer who made the enquiries was the potential unfairness of the effect of the 2007 amendment on a claimant who would have satisfied the pre-1 October 2007 blanching test, but not the post-1 October 2007 test, and who did not satisfy the new sensorineural test either. So it was thought that such a claimant might still be able to rely on the old test in relation to periods before 1 October 2007. But the problem is non-existent in the light of the transitional provision in regulation 3 of the 2007 amending regulations. The regulation requires the use of the old blanching test on a claim made within three months of 1 October 2007 for a period starting before that date. For any claim made after that date there cannot possibly be entitlement to disablement benefit for any date prior to 1 October 2007, because of the rules on the time within which claims have to be made, and therefore no unfairness in applying the post-1 October 2007 prescription in its entirety. There was therefore no need on the claim for disablement benefit made on 10 November 2009 to invoke the principle of R(I) 4/96 that there cannot be entitlement to benefit in relation to a prescribed disease for any date before the prescription comes into force and then apparently to misapply that principle so as to apply not just to the award of benefit but also to the determination of the date of onset of the disease and the making of an assessment of disablement.

 

The questions for determination by the tribunal of 24 April 2012

37. Accordingly, the crucial question to be determined by the tribunal of 24 April 2012, as it recognised, was whether the claimant’s entitlement to REA on the basis of the date of onset and an assessment of at least 1% disablement from 1 January 1986 was excluded by the latter part of paragraph 11(1) of Schedule 7 to the 1992 Act. But that question was not automatically answered by the decision of the tribunal of 10 December 2010 or by Tribunal Judge Smith’s “confirmation” that the case had been considered under the post-1 October 2007 rules. As explained above, that decision said nothing about whether PD A11 would have been diagnosed if the prescription had never been amended in October 2007. And even if it had said something that would not have been conclusive for REA purposes, so that the tribunal would still have had to make its own determination of the question. My conclusion as to the proper form of the question is in paragraph 21 above.

 

38. As it is, the tribunal of 24 April 2012 never properly asked itself the question as defined in paragraph 21 above and did not seek relevant evidence or make the necessary findings of fact. It was in the difficulty that all the tribunal papers about the disablement benefit appeal had been destroyed, although the Department had not in so many words said that its written submission to the tribunal of 10 December 2010 (sought by the tribunal of 22 November 2011 on adjournment) or the evidence on which the Secretary of State’s decision of 1 April 2010 had been based were no longer available. The tribunal could though have asked the claimant relevant questions about his symptoms and their onset. The tribunal’s failure to ask itself the right question or make the necessary findings of fact is an error of law that requires its decision to be set aside.

 

Conclusion and directions to the new tribunal

39. Accordingly, for the reason given above I set aside the tribunal’s decision as involving an error on a point of law. The claimant's appeal against the Secretary of State's decision of 11 February 2011 is remitted to a First-tier Tribunal (constituted in accordance with paragraph 16 above) for reconsideration in accordance with the following directions. No-one who was a member of the tribunal of 22 November 2011 or that of 24 April 2012 is to be a member of the new tribunal that reconsiders the claimant's appeal. There must be a complete rehearing of the appeal on the evidence produced and submissions made to the new tribunal, which will not be bound in any way by any findings made or conclusions expressed by the tribunal of 24 April 2012. Before the rehearing the Secretary of State must use his best endeavours to locate any of the evidence on which the decision of 1 April 2010 was based and other relevant documents, including the written submission to the tribunal of 10 December 2010, and either produce those documents to the First-tier Tribunal or give an explanation as to their non-availability. The salaried tribunal judge who considers the arrangements for the rehearing will wish to give a direction about the timetable within which that is to be done and copies supplied to the claimant’s representative. The claimant and his representative are requested to investigate whether the claimant still has any of the documents that would have been issued to him in advance of the hearing on 10 December 2010 and, if so, to produce them in advance of the rehearing. The salaried tribunal judge may wish to set a timetable for that as well. The claimant should in any event be prepared to answer questions at the rehearing about the nature of his vibration white finger symptoms and how and when they first came on, as well as other questions about the history of his case. The new tribunal is to apply the interpretation of paragraph 11(1) of Schedule 7 to the 1992 Act set out above, with the result that the primary question before it will be that described in paragraph 21 above, which if answered against the claimant would be an end to his REA claim, but if answered in his favour would enable the further conditions of entitlement to an actual award of REA of any amount to be investigated. The evaluation of all the evidence will be entirely a matter for the judgment of the members of the new tribunal. The decision on the facts in this case is still open.

 

 

 

 

(Signed on original):  J Mesher

  Judge of the Upper Tribunal

 

Date: 3 July 2013