Upper Tribunal (Administrative Appeals Chamber)

Secretary of State for Work and Pensions v RD (Industrial injuries benefits - reduced earnings allowance) [2017] UKUT 481 (AAC) (6 December 2017)

Reported as [2019] AACR 2

Reduced Earnings Allowance - claimant continuing in his regular occupation after being awarded disablement benefit - whether to be regarded as capable of following his regular occupation

The claimant worked for a company making steel tools, which involved the use of large drop stamping hammers. He was exposed to noise leading to bilateral sensorineural hearing loss. The claimant made a successful claim for disablement benefit, which was initially for a fixed period, but following further assessment, a life award was made. The claimant continued to work in the same employment until shortly before his 65th birthday. The claimant then made a claim for reduced earnings allowance. The Secretary of State disallowed the claim on the ground that the claimant was not incapable of following his regular occupation. The claimant appealed to the First-tier Tribunal (F-tT), conceding that he had not been continuously incapable of following his regular occupation but submitting that he was now permanently incapable of doing so. The F-tT, referring to R(I) 2/81 and R(I) 15/74, found that in the event of the appellant working in his regular occupation there would be a real risk of further hearing loss and allowed the appeal. It held that the fact the appellant had continued in his regular employment was not material to the issue whether or not he met the relevant condition when he claimed. The Secretary of State appealed to the Upper Tribunal on two grounds: (1) that the claimant's return to work "demonstrates that the claimant was capable of following his regular occupation"; and (2) "R(I) 2/81 cannot simply be read to mean regardless of the full evidence and facts, a person suffering from occupational deafness cannot continue with his regular occupation".

Held, dismissing the appeal, that:

1. a claimant's return to work does demonstrate that the claimant was capable of following his regular occupation during any period when he or she is actually following that occupation and it may demonstrate that the claimant is capable of following his regular occupation during other periods; (paragraph 21)

2. the Secretary of State's second argument was plainly correct but it is a question of fact, not law, whether a claimant with a prescribed disease is incapable of following his regular occupation after he has ceased to follow it and the F-tT had been entitled to reach the conclusion it did: CI/3038/2000 considered; (paragraphs 8 to 10 and 22)

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