Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL - ADMINISTRATIVE APPEALS CHAMBER

 

Aviva Insurance Ltd (appellant) v Secretary of State for Work & Pensions (respondent)

 

Upper Tribunal case numbers: CCR/5220/2014, CCR/5221/2014, CCR/5224/2014, CCR/5225/2014.

 

Before: Mr E Mitchell, Judge of the Upper Tribunal

 

Hearing: 16^th September 2015, Rolls Building, London

 

Attendances: Mr M Kent Q.C. and Mr J Murphy for the appellant Aviva Insurance Ltd, instructed by Simpson & Marwick Solicitors LLP.

Mr J Cooper, solicitor, of the Government Legal Department for the Secretary of State.

 

Decision:  The decisions of the First-tier Tribunal (19^th June 2014, Newcastle, file references SC 228/13/ 04661 & 04343 & 04352 & 04463, did not involve the making of material errors on any point of law. The appeals are dismissed.

 

REASONS FOR DECISION

 

Introduction

 

1. The parties inform me that, in these appeals, the Upper Tribunal considers two statutory schemes for the first time.

 

2. One scheme is the Pneumoconiosis etc. (Workers’ Compensation) Act 1979 which requires the Secretary of State to make lump sum payments in respect of certain industrial diseases including diffuse mesothelioma. The other statutory scheme is the Social Security (Recovery of Benefits) (Lump Sum Payment) Regulations 2008 which provides for the Secretary of State to recover from compensators lump sum payments made under the 1979 Act. The 2008 Regulations were modelled on an existing scheme for the recovery of social security benefits although the schemes are not identical.

 

3. These schemes come together in these appeals because the appellant Aviva Insurance Ltd  resists the Secretary of State’s recovery of purported 1979 Act lump sum payments in respect of mesothelioma. Aviva argue the payments were not in accordance with the 1979 Act and so they are not recoverable under the 2008 Regulations.

 

4. The central issue is the 1979 Act meaning of “relevant employer”. The existence of a relevant employer that is still in business defeats a 1979 Act claim. Aviva argue that the Secretary of State has misconstrued the legislation and, by mistakenly restricting the range of relevant employers, awarded claims that should have been rejected. I note that the sums paid out each year under the 1979 Act are significant. In 2013/14, £53 million was awarded to mesothelioma claimants under the 1979 Act and a smaller scheme established in 2008 (Lord Freud, DWP Minister, speaking in Parliament on 17^th March 2014).

 

Legislative Background

 

Pneumoconiosis etc (Workers’ Compensation) Act 1979 (“1979 Act”)

 

5. Section 1(1) of the 1979 Act requires the Secretary of State to make a payment if a claim is made in respect of a person disabled by an applicable disease and “the conditions of entitlement mentioned in section 2(1) below are fulfilled”. Section 2(2) provides for claims by dependants of deceased persons although for simplicity I refer only to the provisions for living claimants. The amount of a payment varies according to age at diagnosis; the younger the person at diagnosis the higher the payment. For living claimants, the scale currently runs from £86,607 to £13,455 (Schedule to the Mesthelioma Lump Sum Payments (Conditions and Amounts) Regulations 2008 (S.I. 2008/1963, as amended)).

 

6. By section 1(3), diffuse mesothelioma is a disease to which the Act applies. All of the claimants with whom these appeals are concerned had that disease.

 

7. The conditions of entitlement in section 2(1) include:

(a) “that every relevant employer of [the disabled person] has ceased to carry on business” (subsection (1)(b)); and

(b) the disabled person “has not brought any action, or compromised any claim, for damages in respect of the disablement” (subsection (1)(c)).

 

8. A 1979 Act payment does not bar a subsequent civil action against the disabled person’s former employer. On the face of it, that jars with the 1979 Act conditions of entitlement which suggest entitlement is reserved for those whose employer has gone out of business. However, as explained below, some employers are ignored by the 1979 Act even if they are still in business. That is why an employer may face a civil claim by the recipient of a statutory payment which, at first glance, appears designed for those whose employer has gone out of business. And that explains why Aviva Insurance Ltd bring this appeal. Civil claims were brought in respect of the recipients of 1979 Act payments and settled on terms involving the making of payments by Aviva.

 

9. Inserted by section 58 of the Welfare Reform Act 2007, the Schedule to the 1979 Act defines “relevant employer”. It should be borne in mind that, if a disabled person has no relevant employer, the condition in section 2(1)(b) is met. If the person clears the field of relevant employers, a successful claim is more likely.

 

10. Paragraph 1 of the Schedule contains the core definition of “relevant employer”:

“Subject to the following provisions, “relevant employer”, in relation to a person disabled by a disease to which this Act applies, means any person-

(a) by whom the disabled person was employed in a prescribed occupation at any time during the period during which he was developing the disease, and

(b) against whom he might have or might have had a claim for damages in respect of the disablement.”

11. Applying the core definition involves factual questions of some difficulty in mesothelioma cases. Was the disabled person employed by the employer while the disease was developing? Does the disabled person have a claim for damages against the employer? However, those difficulties disappear if a particular employer is disregarded under paragraph 2 of the Schedule, which reads:

“A person is not a relevant employer in relation to a person disabled by a disease to which this Act applies if the disabled person has had no period of employment with him which is a qualifying period of employment.”

12. What then is a “qualifying period of employment”? Paragraph 7(1) of the Schedule defines it as follows:

“In this Schedule, “qualifying period of employment”, in relation to a person disabled by a disease to which this Act applies, means any period of employment in a prescribed occupation, except for—

(a) a period of employment which ended more than 20 years before the qualifying date; and

(b) in the case of a claim relating to diffuse mesothelioma, a period of employment which began not more than 15 years before the qualifying date”.

13. I shall refer to the excepted period (a) as the “employments ending more than twenty years ago” exclusion and (b) as the “employments beginning within the last 15 years” exclusion.

14. If a disabled person’s period of employment with an employer falls entirely within either excluded period, the employer is ignored. It is in a disabled person’s interests, therefore, to show that all employment with a particular employer fell within an excluded period.

15. The qualifying date is the date the Secretary of State determined the person’s claim for disablement benefit in respect of diffuse mesothelioma (that benefit must either be payable or notionally payable in order for a person to be entitled to a 1979 Act payment: section 2(1)(a)).

16. The short point of statutory interpretation in these appeals is whether excluded period (a) applies to a diffuse mesothelioma claim. The appellant argues it does not – only excluded period (b) applies – so that periods of employment ending more than 20 years before the qualifying date can defeat a 1979 Act claim. Since excluded period (b) is practically irrelevant in mesothelioma cases (given the long delay between asbestos exposure and disease symptoms) this interpretation puts the focus on the core definition of relevant employer.  And that requires claimants to show they were not employed by an employer when mesothelioma was developing or there is no employer “against whom he might have or might have had a claim for damages in respect of the disablement”.

17. I should mention there are other disregards for less significant employment periods. For example, paragraph 3 of the Schedule excludes an employer if the period of employment was 12 months or less and paragraph 4 excludes an employer if the period was five years or less and also represents no more than 25% of the disabled person’s total period of employment in a prescribed occupation. However, none of these exclusions are directly relevant in these appeals.

18. All the present appeals concern 1979 Act payments for individuals whom the Secretary of State decided had no qualifying period of employment. Their periods of employment with potentially relevant employers ended more than 20 years before the qualifying date and were for that reason ignored. The result was that 1979 Act payments were made even though employers with whom the disabled persons worked in prescribed occupations remained in business.

Social Security (Recovery of Benefits) (Lump Sum Payments) Regulations 2008 (“2008 Regulations”)

19. The Social Security (Recovery of Benefits) Act 1997 provides for recovery of social security benefits from a person’s compensation payments for accident, injury or disease. The 1997 Act does not apply to lump-sum payments. Section 1A of the Act, however, authorises regulations to provide for recovery of lump-sum payments from compensation payments made to a person in consequence of a disease. The regulations are the Social Security (Recovery of Benefits) (Lump Sum Payments) Regulations 2008 (S.I. 2008/1596, as amended). As the parties accepted, the regulations are a free-standing scheme for the recovery of lump-sum payments; the 1997 Act has not been altered to accommodate lump-sum payments. While the regulations apply much of the 1997 Act, they also make unique provision for recovery of lump sum payments. Something relevant may be missed if it is assumed (as happened before the First-tier Tribunal) that the recovery of lump sum legislation is identical to that for recovery of benefits.

20. Regulation 4(1) empowers the Secretary of State to recover the amount of a lump sum payment where (a) a compensation payment is made to a disabled person or a dependant, and (b) a lump sum payment has been made or is likely to be made to the person or dependant, and (c) “the compensation payment is made in consequence of the same disease as the lump sum payment”.  A lump sum payment includes “a payment made in accordance with the Pneumoconiosis etc (Workers' Compensation) Act 1979” (reg. 2(1)).

21. Regulation 8(1) requires the “compensator” to apply to the Secretary of State for a certificate before making a compensation payment. The certificate must be issued within four weeks (reg. 8(2)) and specify the amount of any lump-sum payment. Reg. 10(1) renders the compensator liable to pay an equivalent sum to the Secretary of State (if compensation is at least equal to the amount of the lump-sum payment). To prevent double payment, regulation 12 provides for reduction of compensation payments where the compensated person or dependant has received a 1979 Act payment.

22. Section 11 of the 1997 Act (rights of appeal) is applied and modified by the 2008 Regulations to create a right of appeal to the First-tier Tribunal against a lump sum certificate. The grounds of appeal include “that any amount specified in the certificate is incorrect” and “that the payment on the basis of which the certificate was issued is not a payment within section 1A(1)(a) of the 2007 Act [i.e. not made in accordance with the 1979 Act]”. The recipient of the certificate – here, Aviva – is one of those given a right of appeal.

23. Section 12(4) of the 1997 Act (applied and modified) empowers the First-tier Tribunal to confirm the amount, type and date of the specified payments or to declare the certificate “is to be revoked”.  The onward right of appeal is to the Upper Tribunal on a point of law.

24. A Tribunal of Social Security Commissioners in R(CR) 1/02 addressed whether, on an appeal against a certificate of recoverable benefits, the appeal tribunal “is entitled to reach a decision that implies that benefit was wrongly awarded to the victim of the relevant accident, injury or disease”. The Commissioners held that the question whether a social security benefit was paid “otherwise in respect of” an accident, injury or disease, included the question whether the benefit “ought not to have been paid at all”. At the hearing, Mr Cooper for the Secretary of State accepted that R (CR) 1/02 applied, by analogy, on an appeal to the First-tier Tribunal against a lump-sum certificate. Hence, he also conceded the appellant was entitled to argue the certificate ought to be revoked because the lump-sum payment to which it related was not authorised on a correct interpretation of the 1979 Act.

25. Very properly, the Secretary of State undertook that, if he lost these appeals, he would not seek to recover the 1979 Act lump-sum payments made to the disabled persons. For that reason, the claimants were not made parties to this appeal.

The law and mesothelioma

26. At the hearing, Mr Kent Q.C. (who did not appear below) explained the various ways in which the courts and Parliament had responded to the special difficulties faced by mesothelioma claimants, due to the nature of that disease, in fixing an employer with liability for personal injuries. I will not repeat those submissions here. They reflected the contents of Mr Kent’s skeleton argument and were not disputed.

The First-tier Tribunal’s decision

27. The First-tier Tribunal rejected Aviva Insurance Ltd’s appeals. Aviva, said the Tribunal, was impermissibly asking it to prefer common law to statute. Rightly, neither party seeks to uphold that reasoning. Aviva simply put forward arguments about the construction of the 1979 Act by reference to conventional principles of statutory interpretation.  The First-tier Tribunal granted Aviva permission to appeal to the Upper Tribunal but gave no reason for doing so.

The arguments

28. Mr Kent’s principal argument for the appellant began by asserting a categorical difference between diffuse mesothelioma and other 1979 Act diseases such as pneumoconiosis.  They were cumulative in character; mesothelioma was not. Mr Cooper did not dispute the following from Mr Kent’s skeleton argument:

“mesothelioma is different in that it is not a cumulative condition where increasing damage is done with each exposure. It is a malignant condition in which the person exposed faces a “stochastic” risk that he may contract the cancer many years later. In the meantime he has no illness or disease and therefore no cause of action against his employer (Rothwell v Chemical & Insulating Co. [2007] UKHL 39; [2008] 1 AC 281). In the cumulative conditions steady and repeated damage to lung tissue, however slight, is done on each exposure. The cause of action accrues as soon as “more than minimal” damage is done though that may be many years before symptoms appear and he has knowledge of his disease (Cartledge v E Jopling & Sons Ltd [1963] AC 758).”

29. Mr Kent argued that, before the 1979 Act was amended to include the current definition of “relevant employer”, the distinction between diseases was not significant. The 1979 Act’s purpose was to compensate disabled persons whose employers were no longer in business and “either way there was a risk, because of the delay between exposure and symptoms, of a victim going uncompensated even if there was a good claim for damages in law”.

30. Next, Mr Kent argued that Parliament in 2007, when it inserted the new definition of “relevant employer” in the 1979 Act, must have been aware of the current state of scientific knowledge about the mesothelioma disease mechanism. That scientific knowledge was identified by Lord Bingham of Cornhill in Fairchild v Glenhaven Funeral Services Ltd & Others [2002] UKHL 22; [2003] 1 AC 32:

“7…[mesothelioma] is a condition which may be latent for many years, usually for 30-40 years or more; development of the condition may take as short a period as 10 years; but it is thought that is the period which elapses between the mutation of the first cell and the manifestation of symptoms of the condition. It is invariably fatal, and death usually occurs within one to two years of the condition being diagnosed...the greater the quantity of dust and fibre inhaled, the greater the risk. But the condition may be caused by a single fibre, or a few fibres, or many fibres…”

31. If the scientific knowledge is borne in mind, it is absurd and contrary to the Act’s purpose, argued Mr Kent, to construe the definition of relevant employer so as to ignore in mesothelioma cases a period of employment that ended more than 20 years before the qualifying date. These employments were highly likely to have supplied the fibres that led to the disease. The Secretary of State’s preferred interpretation means the state is “shouldering the burden” of compensation that should be borne by the employer. Accordingly, in order to give effect to Parliament’s intention, the Schedule should be interpreted so that, for mesothelioma claims, only the ‘employments beginning within the last 15 years’ exclusion applies. Linguistically, this would be achieved by construing disjunctively the word “and” between the two excluded periods so that they were mutually exclusive. One is for mesothelioma claims and the other is for claims for all the other relevant diseases.

32. Mr Kent also argues for a purposive interpretation of the core definition of relevant employer. This definition requires (a) employment of the disabled person in “the period during which he was developing the disease” and also (b) an employer “against whom [the disabled person] might have or might have had a claim for damages in respect of the disablement”. Mr Kent argues that in mesothelioma cases the period of disease development should be taken to mean something along the lines of “a period during which he was exposed to work-related asbestos”. I accept that. If read literally, in mesothelioma cases the literal definition produces absurdities by excluding some employers for no logical reason. The cellular-level mutation that medics would probably identify as the start of the disease’s development occurs many years after exposure. It would be anomalous to construe the definition of relevant employer so that it was only met if (a) a claim might be made against an employer and (b) it was the employer when the disease became active. The fact that a person was employed by a particular employer when the first cellular mutation occurred is mere happenstance. I explain below how this argument is deployed in support of Mr Kent’s main argument.

33. Mr Cooper’s argument for the Secretary of State in response was succinct. Paragraph 7(1) of the Schedule to the 1979 Act has a clear literal meaning. Both categories of excluded employment applied to mesothelioma claims. The first category applied because it was general (applying to all diseases) and the second category did so expressly. Mr Cooper rightly pointed out that the relevant provisions were contained in primary, not secondary, legislation and no argument was advanced by reference to the interpretative principle in section 3 of the Human Rights Act 1998. Under conventional principles of statutory interpretation, there could be no departure from the literal meaning of paragraph 7(1). The First-tier Tribunal arrived at the right result and the appeal should be dismissed.

Discussion

34. Resolving the dispute between the parties involves applying conventional principles of statutory interpretation. My task, therefore, is to identify the legislative intention as indicated by the words used (River Wear Commissioners v Adamson (1877) 2 App Cas 743).

35. If an Act puts “and” between two components of an enactment, Parliament is likely to be signalling that the components operate conjunctively. Otherwise “or” would be expected. Given the drafting priority given to Acts of Parliament, it would be surprising if “and” were mistakenly used instead of “or” (‘precision drafting’ is how modern drafting is described at p.781 of the 6^th edition of Bennion on Statutory Interpretation). Further, in this case, I would expect the paragraph 7(1)(a) exclusion (the ‘employments ending more than 20 years ago’ exclusion) to begin “in all cases apart from diffuse mesothelioma” if Parliament intended to exclude mesothelioma. So this is what I would have expected to see if Mr Kent’s argument as to the Parliamentary intention was correct:

“In this Schedule, “qualifying period of employment”, in relation to a person disabled by a disease to which this Act applies, means any period of employment in a prescribed occupation, except for—

(a) in the case of a claim relating to any disease to which this Act applies apart from diffuse mesothelioma, a period of employment which ended more than 20 years before the qualifying date; or

(b) in the case of a claim relating to diffuse mesothelioma, a period of employment which began not more than 15 years before the qualifying date”.

36. I accept that, as Mr Kent submitted, “and” has been interpreted disjunctively to make sense of an Act but only rarely. In placing “and” between two clauses, Parliament probably intended them to operate conjunctively and not disjunctively as alternatives. I therefore approach the interpretation of paragraph 7(1) with a presumption that Parliament used “and” in its traditional sense and so did not intend to create mutually exclusive excluded periods of employment for diffuse mesothelioma and all other relevant diseases.

37. I accept the point Mr Kent made at the hearing that, in everyday speech, “and” can be used to connect a list of options in a way that implies alternatives rather than aggregation. For example, a waiter might say “today we have for you specials of steak and cod”. However, precision is probably more important in an Act of Parliament than in any other form of communication. A more careful choice of connecting terms is to be expected. Therefore, Mr Kent’s example does not give him significant assistance. It does, however, provide some because it shows that, linguistically, the conjunctive interpretation is not the only conceivable interpretation. It provides a window of opportunity for giving effect to his argument that excluding employments that ended 20 years previously is absurd in mesothelioma cases. Interpreting paragraph 7 in the way Mr Kent suggests is possible without doing extreme violence to the statutory wording.

38. Given my presumption as to the intended meaning of “and”, Mr West has to show that his interpretation accords with the purpose of the provision with the scheme of the Act. So what is paragraph 7’s purpose and function? The existence of a relevant employer (who is still in business) will defeat a claim. Paragraph 7 therefore clears out whole categories of employer so they cannot defeat a claim for a lump-sum payment.  Paragraph 7 is designed to make it easier for a disabled person to establish entitlement to a lump-sum payment.

39. What Mr Kent Q.C.’s history of legal responses to mesothelioma shows is that judges and legislators have been driven, at least in part, by the same impulse. Mesothelioma is a terminal condition. It tends to present only once terminal and death comes swiftly. The disease mechanism – asbestos fibres lurking unnoticed for decades before generating a cellular-level mutation – has made it difficult to fix a particular employer with liability. A humanitarian desire to ameliorate the impact of these features has clearly played a part in the various judicial and legislative inroads into traditional principles of tort law (e.g. the House of Lords in Fairchild modifying for mesothelioma civil actions the usual rules of causation; the enactment of the Compensation Act 2006). This was part of the legal context to the enactment of the Welfare Reform Act 2007 of which Parliament must have been aware (Pillai (Kodakan) v Mudanayake (Punchi Banda) [1953] AC 514 at 528).

40. If Mr Kent is right, Parliament in 2007 intended by its most significant ever reform of the 1979 Act to give little practical assistance to those making mesothelioma claims. Only recent employers and those for whom the individual worked for a relatively limited period of time would be cleared out the way of the claim. Given the science, the recent employers would be unlikely to be relevant in any event. Employment that began within 15 years of the qualifying date is unlikely to have been responsible for lodging the fibres that triggered the disease given the typical period between exposure and activation of the disease referred to by Lord Bingham in Fairchild. So paragraph 7(b) – exclusion of employments beginning less than 15 years ago – is of very little assistance for those making mesothelioma claims.

41. By contrast, paragraph 7(a) – exclusion of employments ending 20 or more years ago – would be of real practical assistance to mesothelioma claims.  Employers from the distant past would be rendered irrelevant. They could not defeat the claim.

42. I accept that paragraph 7(a), if it does apply to mesothelioma claims, removes a whole category of employer that might have been responsible for the asbestos exposure. However, the field is not entirely de-populated. What remains are (a) employments that began more than 20 years before the qualifying date but ended within twenty years of that date (or had not ended by that date), and (b) employments that began between twenty and fifteen years’ ago. These employments can be rationally distinguished from those that ended twenty years before the qualifying date. The disabled person’s link with the employer is more recent. It will probably be simpler to obtain the relevant documentary evidence in support of a civil claim.

43. For that reason, I do not agree that interpreting the paragraph 7 excluded periods conjunctively so that both apply to mesothelioma claims is absurd. Moreover, departing from that interpretation would imply Parliament intended paragraph 7 to confer virtually no benefit on sufferers of a condition whose role as a motivator of law reform probably makes it a unique disease in English & Welsh legal history.

44. Mr Kent also relies on the accepted purposive interpretation of the term “developing the disease” in support of his principal argument (see paragraph 32 above). To recap, the core definition of relevant employer requires the disabled person to have been employed while the disease was developing. Briefly, the purposive interpretation reads the term “developing the disease” to mean “while exposed to asbestos”. That term has been part of the definition of relevant employer since the 1979 Act was passed. My understanding of this quite sophisticated argument is (a) this purposive interpretation must have applied to the 1979 Act from the outset, to the extent that it was concerned with mesothelioma claims, and (b) once that is accepted, it must also be accepted that a purpose of the Act has always been to identify employers against whom the disabled person has a realistic claim for compensation, and hence (c) this support the disjunctive interpretation of paragraph 7 because the alternative interpretation excludes employers against whom a disabled person has a realistic claim for compensation.

45. I accept the Act generally seeks to identify a realistic alternative source of compensation. I do not, however, accept that this general aim is of such interpretative weight as to show that, in 2007, Parliament must have intended for mesothelioma claimants to pursue employers from twenty-plus years ago instead of making a claim for a 1979 Act payment.  The old and the new – the Schedule and the rest of the Act - need to be read together. Once that is done, it is clear that the Act, as amended in 2007, does not seek simply to exclude employers who cannot be sued. This is shown by the ‘employments ending more than 20 years ago’ exclusion clearly applying to all other 1979 Act diseases the result of which must be to exclude some employers against whom a good civil claim would lie. Mr Kent’s argument only works if one takes the purpose of the Schedule to be the exclusion of all employers who could never face a realistic civil claim. But that is not its purpose.

46. A separate issue in one appeal concerned whether an employer (a company) was still carrying on business if it was no longer operational but a parent company was (and a relevant insurance policy was in place). I do not need to resolve this given my conclusion on the main issue and I decide not to express a view because I have not had any submissions about the potentially relevant compulsory employers’ insurance legislation. However, I note both parties agreed that, in the above circumstances, the employer remained in business for the purposes of the 1979 Act.

Conclusion

47. I decide that the two excluded periods of employment in paragraph 7 of the Schedule to the 1979 Act both apply to mesothelioma claims. Linguistically, there is an argument, albeit not a strong one, for the disjunctive interpretation but, once the legislative and wider legal context is taken into account, it is clear that it does not reflect the legislative intention.

47. My conclusion means that, on mesothelioma claims under the 1979 Act, employments that ended more than 20 years before the disabled person’s qualifying date are excluded. They cannot defeat the claim. Although the First-tier Tribunal in an otherwise impressive decision wrongly rejected Aviva’s case because it mistakenly thought it was an invitation to disapply (rather than interpret) statute law, the Tribunal arrived at the right decision. The Secretary of State’s certificates under the 2008 Regulations validly referred to lump sum payments made in accordance with the 1979 Act.

48. I see no need to have regard to Ministerial statements within the Hansard Parliamentary record, as I was invited to do, in construing the 1979 Act as amended. I do not believe  paragraph 7 of the 1979 Act is ambiguous in the Pepper v Hart sense because any linguistic ambiguity disappears once the wide legislative and legal context is taken into account. Therefore the criteria in Pepper v Hart [1993] AC 593 for having recourse to Ministerial statements are not satisfied.

49. If, however, I am wrong about the applicability of Pepper v Hart the Parliamentary materials to which I was directed, if they support either party, support the Secretary of State.

50. I was referred to Ministerial statements as the Bill which led to the 1979 Act was proceeding through Parliament. A Lord Wallace of Coslaney (whom I assume was the Government Minister in charge of the Bill in the Lords) said the Bill would compensate individuals with the relevant diseases “provided that there was no employer for whom the sufferer worked where he could develop the disease who was still in business and therefore capable of being sued” (Hansard, 3 April 1979 Vol 399 columns 1834-48). I do not doubt the 1979 Act was enacted for that general purpose. However, it was amended by the 2007 Act and those amendments deem certain employers to be irrelevant for 1979 Act purposes. Even if the original purpose of the 1979 Act found precise expression in its original provisions, the 2007 Act amendments show an intention to depart from that purpose to the extent provided for by the new Schedule to the 1979 Act. I do not think the 1979 Minister’s views are of assistance in interpreting the Schedule.

51. During the passage of the Bill that led to the Welfare Reform Act 2007, the Minister of State at the Department for Work & Pensions Mr J Murphy said during committee stage debates (Hansard, 30 November 2006, col. 569):

“The changes that we are making to the 1979 Act will incorporate in legislation a more practical version of the relevant employer condition than officials have been applying since 1980. There will be five circumstances in which an employer will not be regarded as a relevant employer, therefore enabling a person to bring a claim. Without the amendment, those relevant employer disregards that we wish to introduce will not apply in cases in which all periods of employment with the employer ended more than 20 years before the qualifying date.”

52. There is no indication there of an intention that the ‘exclusion of employments ending more than 20 years ago’ category should not apply to mesothelioma claim.

Is there a right of appeal against 1979 Act decisions?

53. In these cases, the 1979 Act came before the Upper Tribunal by an indirect route.

54. Section 4(3) of the 1979 Act provides:

“Section 18 of the Social Security Administration Act 1992 (appeal on question of law) shall apply in relation to any question of law arising in connection with the determination by the Secretary of State of any claim under section 1 above as it applies in relation to any question of law arising in connection with the determination by the Secretary of State of any question within section 17(1) of that Act.”

55. That suggests a right of appeal to the High Court on points of law (that was what section 18(3) of the 1992 Act provided for). The difficulty with that is section 18 ceased to have effect upon the commencement of section 39 of the Social Security Act 1998. My understanding is that this occurred in relation to 1979 Act determinations on 29^th November 1999 (see S.I. 1999/3178).

56. I have not been able to identify any replacement right of appeal against 1979 Act determinations. If that is correct (and I record I have not heard argument on the point), the only route for challenging 1979 Act decisions would be an application to the High Court for judicial review. I draw this to the Secretary of State’s attention. This may be the intended policy but, if a statutory right of appeal has inadvertently been lost, the Secretary of State may consider bringing forward legislation to confer a statutory right of appeal. In this respect, I note that the Mesothelioma Act 2014 has provided for a full right of appeal to the First-tier Tribunal in respect of reviewed decisions on claims made under the 2014 Act scheme.

 

(Signed on the Original)

E Mitchell

Judge of the Upper Tribunal

3^rd November 2015