NP v Secretary of State for Work and Pensions (II)

This appeal is about a claim for occupational asthma under the prescribed diseases provisions in the industrial injuries scheme.

There is ample evidence that the Appellant worked in exceptionally dusty and unhealthy conditions underground in the coal mining industry in the 1960s and 1970s. There is also no doubt but that the Appellant is today seriously disabled by his respiratory ill-health, including his asthma. However, that does not necessarily mean his asthma was caused by his exposure to coal dust. He was also exposed in later workplaces to other sensitising agents that can cause occupational asthma. But, in summary, the First-tier Tribunal’s decision that the Appellant had a form of constitutional asthma, and so was not suffering from the prescribed disease of occupational asthma, does not involve any error of law. I start this decision by dealing with two preliminary matters.

First, I appreciate that the Appellant will be both surprised and disappointed at the outcome of this appeal, given the Secretary of State’s representative had at least initially supported his appeal to the Upper Tribunal. However, the Secretary of State’s view is obviously just that, a view, and is not binding on the Upper Tribunal. As the Upper Tribunal office’s standard covering letter sent with a copy of the Secretary of State’s first written submission explains, “Please note that the Upper Tribunal judge may not accept what the respondent has said in their observations. In particular, if the respondent’s representations supported your appeal, the judge may not agree that the decision appealed against was wrong in law.” For the reasons that follow, the initial support for the appeal from the Secretary of State’s representative is not persuasive.

Second, I am satisfied that it is fair and just to decide this appeal ‘on the papers’ and so without holding an oral hearing. The Appellant seeks an oral hearing as he wishes “to explain myself that at my 1^st tier tribunal the examining doctor did not examine my respiratory output that the appeal was based on”. As such, the Appellant appears to wish to pursue a challenge to the way the First-tier Tribunal hearing was conducted. However, his complaint in that regard does not relate to either of the grounds on which permission to appeal to the Upper Tribunal has been given. The Appellant has also had ample opportunity at various stages to make detailed written representations on all aspects of the case, whether or not they relate directly to the grounds of appeal. Meanwhile, the Secretary of State’s representative does not seek an oral hearing. In all those circumstances I am satisfied that an Upper Tribunal oral hearing is not needed for the fair and just disposal of this appeal.

The Department for Work and Pensions (DWP) decision-maker decided that the Appellant was not entitled to industrial disablement benefit on the basis of occupational asthma, prescribed disease (PD) D7 (see further Schedule 1 to the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985 (SI 1985/967; ‘the 1985 Regulations’). This decision reflected the DWP examining medical advisor’s opinion that “the overall history, examination and supporting information is not typical for a diagnosis of PD D7 on a balance of probabilities.” The First-tier Tribunal dismissed the Appellant’s appeal. I also dismiss the Appellant’s further appeal to the Upper Tribunal, which at this juncture, as noted above, initially had the support of the Secretary of State’s representative. However, for the reasons that follow the decision of the First-tier Tribunal does not involve any material legal error.

Schedule 1 to the 1985 Regulations prescribes occupational asthma as one of the ‘Miscellaneous conditions’ (or ‘D’ diseases) in the following terms:

The background to the appeal to the First-tier Tribunal was fully explained and explored by Upper Tribunal Judge Mitchell in his detailed grant of permission to appeal, itself made following an oral hearing at the Cardiff Civil Justice Centre. For convenience, I include much of Judge Mitchell’s grant of permission below (paragraphs 14-19 inclusive; I have anonymised the original text as appropriate so as to preserve the Appellant’s anonymity and privacy):

As Judge Mitchell noted (at paragraph 20 of his grant of permission to appeal), the Appellant’s “written arguments, as amplified at the permission hearing at Cardiff Civil Justice Centre, are extensive.” Furthermore, Judge Mitchell ruled, “some of his grounds relate to the facts and merits of his case, rather than describing errors of law made by the First-tier Tribunal … Permission to appeal is refused in respect of those grounds which simply re-argue the facts and merits of the case put before the First-tier Tribunal.” Having carefully identified those submissions which could properly be characterised as potential error of law grounds, Judge Mitchell gave limited permission to appeal but on two grounds only.

The first ground of appeal on which permission was granted was that the First-tier Tribunal had “failed to deal with an issue that arose on his appeal namely whether a worker with previously diagnosed asthma could become sensitised to another occupational agent, leading to occupational asthma” (paragraph 21(3) of the grant of permission).

The second ground of appeal was framed as follows by Judge Mitchell (at paragraph 26 of the grant of permission):

It follows that the Appellant’s appeal to the Upper Tribunal is confined to considering those two grounds of appeal alone. The limited grant of permission to appeal means that the Appellant’s other challenges to the First-tier Tribunal’s decision or the conduct of its hearing necessarily fall away.

The Appellant, who acts in person, has understandably highlighted evidence on the appeal file that links his respiratory conditions to his various former employments, often in rather general terms. His submissions do not focus on further supporting the two grounds of appeal in respect of which limited permission to appeal was granted.

Mr Peter Thompson, the Secretary of State’s representative in these proceedings, has filed two written submissions responding to the Appellant’s appeal. The first submission supported the appeal to the Upper Tribunal on both grounds and proposed that the First-tier Tribunal’s decision be set aside and the case remitted for re-hearing before a new First-tier Tribunal. I then issued further observations and directions on the appeal, prompting Mr Thompson’s second written response to the appeal. This second response involved a partial volte face; the Secretary of State’s position now is that the First-tier Tribunal probably came to the correct decision on the facts, and any error of law on its part may well have been not material. As such, Mr Thompson indicates he is “content for the judge to decide whether to remit the case or dismiss the appeal.”

For all the reasons that follow, I dismiss the Appellant’s appeal to the Upper Tribunal. I start by considering the current state of medical knowledge about work-related asthma.

This case requires some understanding of the different types of asthma affected by the working environment. Work-related asthma in general means asthma where there is some association between increased symptoms and workplace exposure. There are generally accepted to be two types of work-related asthma. The first is work-aggravated asthma, meaning (as the label implies) asthma that is aggravated, but not caused, by exposure to an inhaled agent at work. This type of asthma is not compensated under the industrial injuries scheme. The second is occupational asthma, being asthma that is caused by exposure to an inhaled agent at work. Occupational asthma may be one of two types. The first is occupational asthma with sensitisation, typically where a worker has developed an allergy or sensitisation to an inhaled agent at work. Depending on the circumstances, this may be covered by the prescribed disease provisions for PD D7 in the industrial injuries scheme. The second is acute irritant induced asthma, where asthma develops after a single very high dose exposure (or perhaps multiple symptomatic high doses) to inhaled irritants. This type of asthma may be covered by the accident provisions in the industrial injuries scheme (rather than under the prescribed disease rules). This overall typology can be illustrated diagrammatically:

For the source of this medical organogram and a further analysis of this typology, see D. Fishwick and N. Warren, ‘Asthma at work, Part 1: nature, extent and causes of occupational and work-related asthma’ (2018) 15 Occupational Health at Work 15(2): 25-30 and C.M. Barber et al., ‘British Thoracic Society Clinical Statement on occupational asthma’ (2022) Thorax: 1-10, available at https://thorax.bmj.com/content/77/5/433.

The Appellant’s remaining two grounds of appeal need to be considered against that scientific background. However, I must first consider the points made by the Appellant in his reply to Mr Thompson’s second written response on behalf of the Secretary of State.

The Appellant makes three main points by way of reply to Mr Thompson.

The first is his argument that the evidence demonstrates beyond reasonable doubt that his disability was the result of industrial disease. He refers to statements at e.g. pp.41, 42 and 46 of the appeal file. However, these documents all refer to his successful claim for compensation against the National Coal Board for chronic bronchitis. They do not show that he has occupational asthma as a result of exposure to coal dust (or indeed any other prescribed agent).

The Appellant’s second point is that one DWP decision-maker had accepted that “prescribed disease number D7 is prescribed in relation to the claimant on the balance of probability” (p.78). This was because “clt [claimant] worked at Sunrise Private Care Home as maintenance co-ordinator from 2007 to 2012 and used latex gloves for most of the day on a daily basis” (p.79). However, this finding at p.78 was not a conclusion that the Appellant had PD D7 – it was merely a finding that he had been employed in a relevant occupation at a material time, and so the disease was prescribed (or listed) in relation to him and so a claim was potentially open to him. However, another DWP decision-maker then decided in the negative the separate diagnosis question of whether the Appellant had actually been suffering from prescribed disease D7 (pp.78-79).

The Appellant’s third point is his assertion that the decision to refuse his PD D7 claim was based on a report by a DWP medical adviser that had been “changed without my knowledge and consent”. The Appellant argues that he had told the medical adviser there was no family history of asthma but this was changed by the examining doctor to say that there was. There are at least two difficulties with this assertion. The First-tier Tribunal specifically rejected the Appellant’s “claim that, when signing a DWP medical assessor’s report which mentioned hay fever, the assessor did not first read the report to him”. In addition, Judge Mitchell expressly refused permission to appeal on this issue (at paragraph 28(a) of his grant of permission to appeal).

I now turn to consider in more detail the two grounds on which Judge Mitchell granted permission to appeal.

The first ground of appeal was that the First-tier Tribunal had failed to deal with an issue that arose on his appeal, namely “whether a worker with previously diagnosed asthma could become sensitised to another occupational agent, leading to occupational asthma” (paragraph 21(3) of Judge Mitchell’s grant of permission).

The key passage in the reasoning of the First-tier Tribunal relating to the first ground of appeal is at paragraphs 8 and 9 of its statement of reasons (the emphasis in paragraph 9 is in the original):

As to this ground of appeal, Judge Mitchell made further observations in the grant of permission in the following terms:

Mr Thompson, for the Secretary of State, initially supported this ground of appeal but on a somewhat narrower basis, based on the adequacy of the First-tier Tribunal’s reasoning. He argued that the First-tier Tribunal was entitled on the evidence, and on the balance of probabilities, to reach the view that the correct diagnosis for the Appellant was probably one of eosinophilic asthma (a severe form of constitutional asthma). But Mr Thompson then observed somewhat tentatively as follows:

Mr Thompson subsequently sought medical advice and provided a second written submission. The medical advice he received – consistent with the typology outlined above at paragraph 15 – was that occupational asthma and work-aggravated asthma are mutually exclusive conditions with separate causation. On the basis of that further medical advice, Mr Thompson was inclined to accept that the First-tier Tribunal was entitled to find that the Appellant had a case of work-aggravated asthma rather than a form of occupational asthma caused by exposure to a sensitising agent in the workplace.

I deal first with Mr Thompson’s initial support for this ground of appeal. He was concerned that the First-tier Tribunal may not have gone “far enough to explain why it felt that none of these agents had directly caused at least a degree of asthma which might have brought the claimant within the terms of the prescription”. However, the Tribunal’s reasoning must be understood against the relevant frame of reference, being the typology of work-related asthma described above. The Tribunal’s clear conclusion was that this was a case of work-aggravated asthma rather than either form of occupational asthma. The Appellant had not advanced his claim on the basis of acute irritant induced asthma. The Tribunal also found it was not a case of occupational asthma with sensitisation. On this point, and in the inevitable absence of detailed clinical data (hence the Tribunal’s comment at paragraph 7), the Tribunal had to rely on evidence about onset and symptomology. In that regard, the Tribunal made its finding that the Appellant’s reaction to the several sensitising agents identified was a general allergic reaction rather than one induced by exposure to specific agents.

The First-tier Tribunal gave two reasons for this finding. First, it found this to be “consistent with the appellant’s description of gradually worsening symptoms rather than significant acute worsening of symptoms immediately upon exposure to one of the prescribed sensitising agents”. Second, it was also consistent with the evidence of the Appellant’s own specialist (“There is no doubt that he has worsening of his asthma in certain environments particularly in the coal mines but I was not able to delineate any asthma worsened by exposure to latex or pharmaceutical agents”: p.222). The Tribunal’s reasoning may perhaps have been a little compressed but it was certainly adequate, not least given the evidence of the Appellant’s own consultant. The bottom line is that the Tribunal provided an adequately reasoned conclusion for its finding that the Appellant experienced work-aggravated asthma rather than work-caused occupational asthma, applying the guidance on adequacy of reasoning laid down by the Court of Appeal in Evans v Secretary of State for Social Services (reported as R(I) 5/94). The conclusion that the Appellant was not suffering from prescribed disease D7 was a factual finding by a First-tier Tribunal comprising a judge and a medical member which I must respect.

Turning to Judge Mitchell’s broader observations, the case of asthma is arguably a good example of the problems faced by the prescribed diseases part of the industrial injuries scheme in dealing with health conditions which are common in the general population as well as being a higher risk in certain occupations (see further the Industrial Injuries Advisory Council report, Diseases with multiple known causes, occupational injuries, and medical assessment (Cm 9632, June 2018)). The key question in such cases is often one of causation. The difference between a general allergic response and an immunobiological response matters because it represents the distinction between existing asthma that is aggravated by workplace exposure and asthma that is actually caused by a sensitising agent. In the present case, as noted above, the First-tier Tribunal has explained adequately why it concluded this was a case of work-aggravated asthma and not occupational asthma. If the Appellant’s asthma has not been caused in the first place by the workplace exposure, then the prescribed diseases provisions simply have no purchase (see further reported decision R(I) 8/02, discussed below).

In summary, the first ground of appeal does not succeed.

The Appellant’s second ground of appeal is that the First-tier Tribunal erred in law by failing to explain why the miscellaneous category (x) of “any other sensitising agent”, as listed at the end of the terms of prescription for PD D7, was inapplicable to coal dust. This ground of appeal relates to the Tribunal’s brisk finding (at paragraph 7(2) of its reasons) that “The appellant worked underground and on the surface as a miner from 1964 to 1976. He was exposed to coal dust, but this is not a sensitising agent. Because of his exposure to coal dust the appellant experienced wheeziness and chest tightness, and regularly coughed up phlegm…”. This ground of appeal requires some consideration of both the legislative and the case law context.

So far as the legislation is concerned, the position was helpfully explained by Mr Commissioner Bano in CI/2543/2002 in the following terms:

Thus, the entry for prescribed disease D7 in Part I of the Schedule to the 1985 Regulations refers, in column 1, to “asthma which is due to exposure to any of the following agents” (see paragraph 6 above). A number of agents are then specified, including the following which were identified by the Appellant as relevant to his claim at various dates:

However, neither statute nor Schedule 1 to the 1985 Regulations defines what is meant by “any other sensitising agent”, so we have to turn to the case law for guidance. The early unreported case law authorities, if I may say so, were not especially helpful. Thus, one Social Security Commissioner expressed the view that the phrase “any other sensitising agent” in category (x) had to be read ejusdem generis (of the same kind or nature) with the agents listed in paragraphs (a) to (w) (CI/73/1994), while another Commissioner considered there was no such restriction, with the expression catching any agent that was in fact sensitising (CI/4987/1995).

More helpful is the pair of unreported decisions in CI/2543/2002 and CI/564/2005, which identify a threefold approach. Applying this typology, agents must by definition fall into one of three mutually exclusive categories, namely: (i) agents which are known to be sensitising agents, (ii) agents which are known not to be sensitising agents, and (iii) cases where it is not known whether the agent in question is a sensitising agent. So, for the purposes of PD D7 claims, agents are either a Yes (group (i)), a No (group (ii)) or a Don’t Know (group (iii)).

The leading case on the point is now the reported decision of Mr Commissioner Howell QC in R(I) 8/02, which concerned a London bus driver (emphasis in the original):

Returning to the instant appeal, Mr Thompson’s submission is that the First-tier Tribunal was correct in this case to find that coal dust is known to be not a sensitising agent (and so fell into group (ii) of the typology at paragraph 36 above). In support of this proposition, he states that UK Occupational Asthma Sensitising Information Service (OASIS) lists coal dust as a non-sensitising agent for the purposes of PD D7. However, even so, Mr Thompson contends that the First-tier Tribunal did not provide an adequate explanation for its finding that coal dust is not a sensitising agent.

Notwithstanding Mr Thompson’s limited support for this ground of appeal, I conclude it is not made out. I have two reasons for reaching this conclusion.

The first reason is that in stating that coal dust is not a sensitising agent the First-tier Tribunal was simply reflecting and stating the prevailing view in medical science. It certainly had no persuasive evidence before it that coal dust was recognised as a sensitising agent for the purposes of PD D7. In this context I note that the Health and Safety Executive (HSE) does not include coal dust in its on-line publication List of substances that can cause occupational asthma: see https://www.hse.gov.uk/asthma/substances.htm.

However, there is one other matter of note that is of more general significance. As mentioned above, in his written submissions Mr Thompson relies on the fact that the UK Occupational Asthma Sensitising Information Service (OASIS) lists coal dust as a non-sensitising agent for the purposes of PD D7. I had assumed that OASIS was some independent non-governmental agency, perhaps an offshoot of the HSE. However, it appears that OASIS is the name given to the in-house system operated by the Centre for Health and Disability Assessment (CHDA), which conducts medical assessments on behalf of the DWP. It follows that OASIS is in fact effectively an emanation of the Respondent to this appeal. Mr Thompson advises that within the OASIS system there is a document entitled Sensitising Agents for Respiratory Prescribed Diseases. Part of this document is a schedule entitled “Recognised Non Sensitising Agents for PD D7”, which includes coal dust as one such recognised non-sensitising agent. Mr Thompson has helpfully provided a copy of the relevant part of the OASIS schedule. He adds that it is not available on-line as it is an internal document, but there are very many DWP internal documents and guides which are readily accessible to members of the public in such a way. I simply observe that if DWP decision-makers are routinely relying on OASIS listings when deciding prescribed disease claims it would seem only fair that such material is made publicly available.

The second reason is that in the final analysis, even if the First-tier Tribunal’s finding had lacked an adequate explanation, it would have made no material difference to the outcome of the Appellant’s claim for industrial disablement benefit. It will be recalled that the Secretary of State’s decision-makers had made two relevant decisions. First, the employment question had been answered in the affirmative so far as exposure to latex had been concerned. Secondly, however, the diagnosis question – was the Appellant suffering from PD D7? – was answered in the negative. But even if coal dust was recognised as a sensitising agent, the decision-maker would have had to consider the various other conditions of entitlement to industrial disablement benefit. In particular, the decision-maker would necessarily have had to have regard to regulation 36 of the 1985 Regulations. The relevant provisions are as follows:

Neither of the exceptions in paragraphs (2) and (3) applied to the Appellant’s circumstances. It follows that he was subject to the normal rule in paragraph (1), namely that industrial disablement benefit “shall not be paid in pursuance of a claim in respect of occupational asthma which is made later than 10 years after the latest date … on which the claimant … worked in employed earner’s employment in an occupation prescribed in relation to occupational asthma”. The Appellant was employed by the National Coal Board between 1964 and 1977. His claim for industrial disablement benefit was not made until January 2017. It follows that, even if coal dust was indeed “any other sensitising agent”, and so working underground at a colliery was a prescribed occupation for the purposes of PD D7, the claim on that basis was necessarily way out of time and in effect statute-barred.

I recognise that the Appellant in the present appeal had gone to a great deal of trouble in providing details of his former employments over a period of more than 50 years. However, as a result of the ten-year-rule in regulation 36(1) of the 1985 Regulations, the Appellant must have worked with the relevant sensitising agent which caused their asthma within the ten years immediately before the date of their claim. In this case, ultimately the only work that potentially counted for the purposes of PD D7 was the Appellant’s employment with an automotive filter manufacturer (2001-2007) and at a residential care home (2007-2012). The Appellant had argued that in those jobs he was exposed to metal working fluids (agent (x)) and latex products (agent (wa)) respectively (see pp.134-137). The DWP decision-maker had recognised that prescribed disease D7 was prescribed in relation to the Appellant as regards the care home employment (see paragraph 20 above). However, that did not assist him as the diagnosis question was decided against him.

Furthermore, had this appeal to the Upper Tribunal succeeded, and the case been remitted for re-hearing by a new First-tier Tribunal, the Appellant would have had to counter the Department’s case that the history of his asthma was not that of occupational asthma, but rather that his asthma was constitutional in origin, albeit aggravated by the Appellant’s many and varied workplace occupations. In that respect the Appellant’s task would have been made substantially more difficult by the combination of the legal effect of the time bar in regulation 36(1) and the evidential problem posed by the fact that his own consultant did not support a diagnosis of occupational asthma. In that context I would also add that the specialist was most likely applying the clinically recognised criteria for a diagnosis of occupational asthma rather than the more restrictive requirements laid down for PD D7 by the 1985 Regulations.

Be all that as it may, I therefore find that the second ground of appeal is not made out. Any inadequacy in the First-tier Tribunal’s explanation as to why coal dust was not a relevant sensitising agent for the purposes of a PD D7 claim was not material to the outcome of the Appellant’s appeal.

It follows from the reasons above that neither ground of appeal succeeds. I therefore conclude that the decision of the First-tier Tribunal involves no material error of law. I accordingly dismiss the appeal to the Upper Tribunal (Tribunals, Courts and Enforcement Act 2007, section 11).