Secretary of State for Work and Pensions v Whalley

This is the judgment of the court. This appeal from a Social Security Commissioner (Mr David Williams) raises a point on the finality of decisions concerning industrial injuries benefit. There have been conflicting decisions of Social Security Commissioners and the point is one of some general importance.

Section 94 of the Social Security Contributions and Benefits Act 1992 (“the SSCBA 1992”) provides for the payment of industrial injuries benefit (“IIB”) to persons who have been in employed earner’s employment. By virtue of s.108(1), IIB is payable in respect of any prescribed diseases (“PDs”) which are due to the nature of that employment. IIB is also payable in respect of prescribed personal injuries but we can ignore that for the purposes of the present judgment.

Industrial Injuries Benefit consists of 4 benefits, two of which are relevant here:

(1)

disablement benefit (“DB”) – entitlement to which is determined in accordance with sections 103 to 105 of the SSCBA 1992; and

(2)

reduced earnings allowance (“REA”) – entitlement to which is determined in accordance with Part IV of schedule 7 of the SSCBA 1992.

The period in respect of which each of these benefits is payable starts with a date calculated by reference to date of the onset of the disease.

REA is being phased out. If the date of onset of the disease is after 1^st October 1990 REA is not available.

In order to qualify for either benefit the claimant must show that he is suffering from a prescribed disease. Commissioner Williams’ decision indicates that in some circumstances the date of the onset of the disease can be one date for DB and another for REA. It is that conclusion which has given rise to this appeal by the Secretary of State.

The procedural history of the present case is complicated for several reasons. One is that there have been two claims for DB in respect of the same disease separated by some years followed by two inconsistent DB decisions in respect of the date of onset of that disease. A second is that there is a claim for REA in respect of the same disease. It is now agreed that in relation to the claim for DB the first DB decision as to date of onset must prevail. What is at issue in the present appeal is whether in relation to the claim for REA the same is true. The appellant Secretary of State submits that this is so and that a finding as to date of onset made in the course of reaching the first DB decision binds the decision maker on the REA claim. The claimant successfully submitted below that this is not the case and that the matter can be looked at afresh. Thus he was able to rely on a more favourable medical decision than he was able to obtain on the first occasion.

The appeal centres on the proper interpretation of section 60 of the Social Security Administration Act 1992 (“the SSAA 1992”). That Act has been overtaken by subsequent legislation. The same point arises under that legislation.

By way of background to the submissions it is useful to indicate the legislative history of these two benefits. We take what follows from the helpful written submissions prepared by Mr David Forsdick who appears for the Secretary of State and understand it to be common ground.

The current basic structure of DB and REA was introduced by schedule 3 to the Social Security Act 1986 (“the 1986 Act”) with effect from 1^st October 1986.

Prior to that date DB was payable for any degree of disablement over 1% (compare 14% now) subject to the same eligibility criteria as now apply: s.57 of the Social Security Act 1975 (“the 1975 Act”). S.60 of the 1975 Act provided a “top up” to DB for special hardship – Special Hardship Allowance (“SHA”). This was payable if, as a result of the relevant loss of faculty, the beneficiary was incapable and likely to remain permanently incapable of following his regular occupation and was incapable of following employment of an equivalent standard which was suitable in his case (“the loss of occupation” test).

By the 1986 Act, Parliament restricted eligibility to DB to those who had a higher assessment of disablement. However, for inter alia those who had a lower degree of disablement than the new threshold of 14% (but more than 1%) and who would previously have been entitled to SHA by reason of the loss of occupation test being satisfied, SHA was replaced by REA.

Consequently, whereas previously one could not be entitled to SHA without there being actual entitlement to DB, post-1986 if the conditions of entitlement to DB were met (other than the 14% test) and there was more than 1% disablement and the loss of occupation test was satisfied, REA was payable.

This was given effect to in what is now paragraph 11(1)(a) of schedule 7 to the SSCBA 1992. Under that paragraph, entitlement to REA is dependent either on the claimant being entitled to DB or he “would be so entitled if that pension were payable where disablement is assessed at not less than 1 per cent…”.

Entitlement to REA is thus predicated on establishing that there would have been entitlement to DB had DB still been payable on assessments of disability of 1%.

On 6^th September 1991 an Adjudicating Medical Authority (“AMA”) decided a claim to DB by Mr Whalley. Such benefits are claimable in respect of certain prescribed diseases. One of those prescribed diseases is Vibration White Finger (“VWF”), which the Regulations term PD A11. Mr Whalley asserted that he was suffering from PD A11 and gave the date of onset of the disease as 8^th August 1985. The AMA decided that he was not suffering from PD A11 on 6^th September 1991 and had not suffered from PD A11 since 1985. That finding was not appealed. We shall refer to this as the First Finding. However, in October 1995 Mr Whalley once more made a claim for DB on the ground that he was suffering from PD A11. He claimed that his disablement began in October 1992. Although this second claim was initially rejected, there were appeals and in due course a Medical Appeal Tribunal (“MAT”) in 1998 apparently took the view that Mr Whalley was suffering from VWF in 1998 and had been since 1^st January 1986. We shall refer to this as the Second Finding. It is obvious that the First and Second Findings are inconsistent in relation to the period prior to 7^th September 1991. There was a further appeal to a Social Security Commissioner. The Secretary of State contended that the MAT were as a matter of law prohibited from making the Second Finding because Statute had provided that the First Finding should be final.

Mr Whalley claimed REA on the basis that he had lost income as a result of suffering from PD A11 from 1^st October 1986. That claim was rejected by the Adjudication Officer in November 1996. Mr Whalley appealed to the Medical Appeal Tribunal. That appeal was adjourned pending a final decision on his DB appeals. In consequence nothing further has formally been done in relation to the REA appeal. Strictly speaking neither the MAT nor Mr Commissioner Williams had before them any appeal in relation to REA.

It seems clear that the MAT initially gave the date of onset of the disease as 1^st January 1986. Someone then “corrected” this decision so as to substitute 7^th September 1991. Mr Whalley appealed to the Social Security Commissioner.

Before the Commissioner both parties agreed that this “correction” of the Tribunal’s decision was not permitted as a matter of procedure under the relevant legislation and that the decision of the MAT should be set aside and the matter should be remitted to a new Tribunal. However they were not agreed as to what the correct legal approach of the new Tribunal should be in relation to the claim for REA which had been adjourned. Mr Seddon, who appeared for Mr Whalley before the Commissioner and before us, expressly disclaimed any desire to obtain a backdating of the DB. He was only concerned with the REA. Although no appeal in relation to the REA was before him, the Commissioner heard argument on the point and gave a ruling.

Mr Commissioner Williams ruled:

Both parties now agree that the Commissioner was right in the first two of these conclusions. The main issue between them relates to the third, although their positions also differ as to the fourth. The appellant Secretary of State maintains that the Commissioner fell into error. The respondent claimant submits that the position is as the Commissioner found.

The Secretary of State has appealed to this court because he asserted that this ruling, which in practice would be applied by the new Tribunal, was erroneous in point of law. As a result of the procedural history of this case, we thus find ourselves in an unusual position. The decision of the MAT related to DB. That decision was vitiated by procedural error. There was an appeal by Mr Whalley against that decision to the Commissioner. Both parties agreed and the Commissioner so held that the appeal to him ought to be allowed because of the procedural error and the matter remitted to a new Tribunal. Both parties still agree he was right so to hold. The Commissioner gave directions to the new tribunal which, in so far as they concern DB, are not challenged. The Commissioner, at the request of the parties, decided a point relevant to the REA claim which claim had not been the subject of any decision by the MAT and in relation to which there had therefore not yet been an appeal to him. However, because the adjournment of the REA claim had been made to obtain a ruling on, inter alia, the effect in law of the First Finding on the later claim for REA, it seemed sensible of the Commissioner to deal with it. Similarly both parties have proceeded on the basis that we ought to deal with it and neither has suggested that we lack jurisdiction so to do. Matters having got this far, it seems sensible that we should state the law as we find it to be.

A claimant wishing to establish entitlement to DB in relation to a PD, must show that:

Schedule 6 of the SSCBA 1992 makes provision for the assessment of extent of disablement. Paragraph 6(1) provides, so far as is relevant, as follows:

“…the period to be taken into account by an assessment for the purposes of s.103 above … of the extent of a claimant’s disablement shall be the period … during which the claimant has suffered and may be expected to continue to suffer from the relevant loss of faculty.”

Paragraph 7 of the Schedule provides that:

“An assessment for the purposes of section 103 above … 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 purposes of determining in accordance with section 103 above and Parts … IV of schedule 7 to this Act the Claimant’s rights as to disablement pension … and reduced earnings allowance (whether or not a claim has been made).”

By virtue of s. 106, the provisions of schedule 7 determine eligibility for REA. Paragraph 11 of schedule 7 provides, so far as is relevant, as follows:

“(1)

Subject to the provisions of this paragraph, an employed earner shall be entitled to [REA] 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…

but a person shall not be entitled to [REA] to the extent that the relevant loss of faculty results from an accident happening on or after 1^st October 1990…”

Section 109(1)(b) makes this provision applicable to PDs as well as accidents.

Section 108 of the SSCBA 1992 deals with Industrial Injuries Benefit in respect of prescribed diseases. Subsection (4) states that provisions may be made by regulations for determining the time at which a person is to be treated as having developed any prescribed disease or injury. The 1985 Regulations, made under the earlier legislation, continue to have effect for the purposes of the section.

Regulation 5 of the 1985 Regulations provides:

“If on a claim for benefit under Chapter V of Part II of the Act in respect of a prescribed disease a person is found to be or to have been suffering from the disease … the disease shall for the purposes of such claim be treated as having developed on a date (hereinafter in these regulations referred to as “the date of onset”) determined in accordance with the provisions of the next 2 following regulations”.

Regulation 6 of the 1985 Regulations provides as follows:

“(1)

For the purposes of the first claim in respect of a prescribed disease suffered by a person, the date of onset shall be determined in accordance with the following provisions of this regulation, and … that date shall 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….

(2)

Where the claim for the purposes of which the date of onset is to be determined is-

…

(b)

a claim for disablement benefit… the date of onset shall be the day on which the claimant first suffered from the relevant loss of faculty…”.

From the previous paragraph it can be seen that, for the purposes of DB, the date of onset is the day on which a claimant first suffers from the relevant “loss of faculty”. The date of onset so determined for DB is closely related to that which must be established as occurring prior to 1st October 1990 for the purposes of entitlement to REA. As we have pointed out in paragraph 26, entitlement to REA turns upon “relevant loss of faculty” as a result of a PD which itself developed before 1^st October 1990.

The legislation distinguished between what was described as a diagnosis question and what was described as a disablement question – see Regulation 40 of the Social Security Adjudication Regulations 1986, Regulation 43 of the Social Security Adjudication Regulations 1995 and Section 45 of the SSAA 1992.

Both in the case of DB and in the case of REA entitlement to benefit is dependent upon:

It is manifest that if the answer to the diagnosis question is that the claimant has not suffered from the PD then the disablement questions do not fall to be answered. They simply do not arise.

Section 60 of the SSAA 1992 read as follows:

(1)

Subject to the provisions of this Part of this Act, the decision of any claim or question in accordance with the foregoing provisions of this Part shall be final; …

(2)

Subsection (1) shall not make any finding of fact or other determination embodied in or necessary to a decision, or on which it is based, conclusive for the purpose of any further decision.

That section was found in Part II of the Act which set out the procedure for reaching decisions on DB and REA as well as a number of other matters.

It is common ground that for the claim to REA the date of onset is critical. Mr Seddon submitted that the AMA in 1991 had never come to a decision on the date of onset or any disablement questions. Those questions had never arisen for decision once it had been decided that Mr Whalley was not suffering from PD A11. Section 60(1) was simply not in play.

Mr Seddon relied on s.60(2). He submitted that all that was before the AMA in 1991 was a claim for DB. He submitted that the AMA had made a finding of fact – that Mr Whalley was not then suffering from PD A11 and had not suffered from it since 1985. This was embodied in or necessary to the decision that he was not entitled to DB; alternatively that decision was based upon that finding. Section 60(2) provided that, in those circumstances, the finding of fact was not made conclusive for any further decision on the different question, namely, was Mr Whalley entitled to REA.

Mr Forsdick relied on section 60(1). He submitted that before the AMA in 1991 was the diagnosis question which was decided against the claimant and that section 60(1) made that decision final. He submitted that section 60(2) was designed to cut down the wide wording of section 60(1) so that it did not bite on all possible preliminary matters such as the precise symptoms displayed at any particular time. He submitted that the answer to the diagnosis question was not in this category and was precisely that which was intended to be caught by s.60(1). It was just the sort of matter for medical decision which perhaps admitted of more than one possible answer but where finality was desirable. Parliament had provided for an appeal if the claimant was not content with that decision but Mr Whalley had not chosen to avail himself of that option. Now he was bound by it. Otherwise he could come back again and again until he found a doctor whose diagnosis supported a claim.

Mr Seddon, and the Commissioner, sought to avoid this manifestly unpalatable conclusion by drawing a distinction between claims for different benefits and repeated claims for the same benefit. Mr Seddon was however unable to suggest a policy reason why Parliament should have wished to draw the distinction made by the Commissioner.

Mr Seddon conceded that if the AMA on the first occasion had specified a date of onset of the disease then this would bind any subsequent tribunal. He was however unable to suggest a policy reason why Parliament should have wished to have finality where a date of onset was specified on the first occasion but not wished to have finality where it was decided on the first occasion that there had never been an onset of the disease.

Mr Seddon conceded that section 60(2) of the SSAA 1992 might be of importance where on a claim for IIB in respect of one PD it was found that the claimant was suffering, not from that PD, but from another disease. If there then followed a second claim for IIB in respect of that other disease the subsequent tribunal would not be bound by the finding of the first tribunal.

In his written submission Mr Seddon relied on the Human Rights Act 1998. He rightly did not press that aspect of his argument. Apart from other considerations, the Human Rights Convention does not give a right to re-litigate a question which has already been determined.

We consider that the Secretary of State is correct in his analysis of the situation. We see no logic in the distinction drawn by the Commissioner and supported by the claimant between repeated claims for the same benefit and consecutive claims for different benefits. The answer should be the same in either case. Both claims depend on establishing that the claimant is suffering from the PD at the time or period in question. Parliament intended finality to be the rule where the question was whether a person is suffering from the PD. This is so whether that question arose in the context of a claim for DB or a claim for REA. It follows that a tribunal cannot decide that a claimant first began to suffer from a loss of faculty as a result of the PD during a period in relation to which it has already been decided that he did not suffer from the PD in question.

The relevant diagnosis was made prior to the coming into force of the Social Security Act 1998. It is common ground that if we are right in what we have held in the preceding paragraph then it is not necessary to look at the later legislation.

Consequently, the direction issued by the SSC should be replaced with a declaration to the effect that, on the facts of this case, the decision of the AMA on the first claim dated 6^th September 1991 is final and binding for both claims and that the date of onset of the PD cannot be determined to be any earlier than 6^th September 1991. Given that REA cannot be awarded in respect of dates of onset after 1^st October 1990 it would follow that the Claimant is not entitled to REA at all.

That disposes of the main point at issue. However, we record that we accept the submission of Mr Forsdick that the Commissioner fell into error when he declared that it was possible to obtain REA without even claiming DB. The submission went as follows.

“Entitlement” in the social security field has had a specific meaning since the predecessor to s.1 of the SSAA 1992 was introduced as s.165A of the 1975 Act in 1985 (to reverse the effect of the House of Lords decision in Insurance Officer v. McCaffrey [1984] 1 WLR 1353). By virtue of that provision, no person shall be entitled to any benefit unless in addition to any other conditions relating to that benefit being satisfied, he makes a claim for it.

Parliament, submitted Mr Forsdick, would have been aware of this requirement underpinning “entitlement” (introduced in 1985) in enacting in 1986 the REA provisions. “Entitled” in para 11(1)(a) of the 7^th schedule to the SSCBA 1992 (cited in paragraph 26 above) therefore must mean satisfying the conditions for DB and making a claim for it. It is clear that in order to be entitled to REA, one must establish that the only thing stopping one receiving DB is an assessment of disability of less than 14%. If Parliament had wished to do so it could have inserted a provision in schedule 7 that entitlement to REA could be established by a schedule 6 assessment for the purposes of REA rather than for the purposes of DB. It did not do so.

This is consistent with the scheme of the legislation. DB is the principal benefit. Whilst eligibility to REA is not parasitic on entitlement to DB (as was SHA) the scheme of the legislation provides for the basic questions as to potential eligibility to be assessed through a DB claim: see e.g. schedule 6 para 7 (cited in paragraph 25 above). There is no separate provision providing for the assessment of the degree of disablement of an REA claim alone. That paragraph specifically envisages the conclusions on a DB assessment being used to inform the decision on an REA claim: see last words.

The initial tests for eligibility to REA and DB are the same:

(1)

a claim being made: s.1 Social Security Administration Act 1992 (“the SSAA 1992”);

(2)

the claimant being in a prescribed occupation under the 1985 Regulations;

(3)

the claimant suffering from and being diagnosed as suffering from the PD;

(4)

the PD being as a result of the prescribed employment;

(5)

the PD results in a loss of faculty; and

(6)

that loss of faculty results in disablement.

The scheme of the legislation is that if those tests are satisfied there is an assessment of the degree of disablement. That assessment can only be undertaken under paragraph 7 of schedule 6 and that paragraph only applies (so far as is relevant) to a DB claim. Therefore in order to obtain an assessment of “not less then one per cent” for REA purposes, a DB claim is required.

Consequently, the SSC’s conclusion that a claimant may be entitled to REA without even making a claim for DB is contrary to the well-established position that REA entitlement is dependent on there being a disablement benefit assessment of at least 1 per cent.

It follows that the changes in the legislation in 1986 (with the change in name of SHA to REA and the increase in threshold for DB to 14%) do not break the link between DB and REA as the SSC held. The conclusion on the disablement questions on a DB claim feed into and inform the REA claim. The self-evident requirement for consistency between decisions is thus achieved through the statutory framework which requires a single decision making route to be followed for disablement issues.

This appeal is allowed. We can declare that Mr Whalley has been suffering from PD A11 or from a sequela of that disease since 7.9.1991.