R(I) 4/02
Mr. D. Williams CI/5880/1999
8.6.00
Review - unforeseen aggravation – disablement benefit transitional cases
The claimant applied for review of a disablement benefit assessment on the grounds of unforeseen aggravation. On 9 February 1999 an adjudicating medical authority decided not to review the assessment. A new scheme of decision making was then introduced by the Social Security Act 1998 and the Social Security and Child Support (Decisions and Appeals) Regulations 1999. On 20 July 1999 a tribunal confirmed the decision of the adjudicating medical authority. The claimant appealed to the Commissioner.
Held, allowing the appeal, that:
- the requirement for a "statement of reasons" in regulation 53(4) of the Social Security and Child Support (Decisions and Appeals) Regulations 1995 continues the obligation to state the basis of fact on which the conclusion has been reached;
- the claimant's application for review was made before the new decision making scheme was introduced in respect of benefits for industrial injuries on 5 July 1999, so the application should be considered under the rules that applied before that date.
DECISION OF THE SOCIAL SECURITY COMMISSIONER
- I grant leave to appeal to the claimant and allow the claimant's appeal against the decision of the Liverpool appeal tribunal on 20 July 1999. I therefore set that decision aside. I refer the case to a freshly constituted tribunal to determine the appeal in accordance with this decision. The tribunal is to be constituted with one or two medical panel members as provided in regulation 36(2) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999, as amended by 1999 Statutory Instrument No. 1466, with different membership to that of previous tribunals.
- The tribunal confirmed the decision of the adjudicating medical authority on 9 February 1999 not to review the previous assessment that the claimant was disabled to the extent of 8 per cent from and including 1 January 1990 for life as a result of the prescribed disease A11 (vibration white finger). Leave to appeal was refused by the chairman, and the claimant sought leave from the Commissioner. Both the Secretary of State and the claimant have consented to my decision on the application being treated as the decision on the appeal. Accordingly, this decision relates both to the grant of leave and to the appeal.
- The tribunal decision came shortly after the changes to both tribunals and appeal procedures introduced by the Social Security Act 1998 on 5 July 1999. I issued a direction raising relevant aspects of the changes. The Secretary of State's submission, made after legal advice, dealt with these issues and supported the application and appeal.
- The main reason for the appeal was the brief and (to the claimant) unreadable decision of the tribunal:
"1 Our clinical findings today were the same as at the AMA in 28.1094. We also accept the findings of the AMA of 9. 2. 99. (we note he has finished work)
2 Therefore there has been no worsening in the condition of his fingers.
3 This is a full written decision."
The record of proceedings adds little to this (part is illegible). The decision notice fails to note whether the claimant was medically examined, while the record of proceedings ends with the solitary word "Examined". No indication is given about what was examined. If the claimant was medically examined by the medical member, there is no record of findings. The tribunal used out of date forms for its decision. But in my view that did not render the decision erroneous in law. In submissions, the Secretary of State agreed with this view, and the claimant did not dissent from it.
- Both the decision notice and record of proceedings are barely readable. The representative stated that they were unreadable. That point was made to the chairman, and therefore also to the tribunal service, but nothing was done about it, and the chairman refused leave. I agree with the Secretary of State that the decision of the Commissioner in CIB/3013/1997 (illegible decisions may be in error of law) also applies to decisions under the Social Security and Child Support (Decisions and Appeals) Regulations 1999. That of itself is reason to grant leave and allow the appeal in this case.
- I drew attention in the direction to the previous requirement that a tribunal chairman produce a statement of material facts and reasons for the decision being replaced by the requirement to produce a statement of the reasons for the decision (emphasis mine). (See Social Security (Adjudication) Regulations 1995, regulation 38(5A), and Social Security and Child Support (Decisions and Appeals) Regulations 1999, regulation 53(4)). The Secretary of State's representative submitted:
"It is the Secretary of State's view that a statement of reasons that does not contain adequate findings of fact must be erroneous in law... It is submitted that the facts which are the basis of the reasons must be provided. Without a record of the findings of the tribunal and an explanation of reasons for the decision reached, a decision must be held to be erroneous in law."
- The requirement of a "statement of reasons", without separate reference to findings of fact, applies generally under the Tribunals and Inquiries Act 1992, section 10. The new appeal tribunal rules do no more, in my view, than bring the phraseology used into line with that Act and general tribunal practice. (See the Council on Tribunals' Model Rules, Cm.1434, rule E.1-8). The courts have repeatedly stated that an obligation to state reasons includes an obligation to state "the basis of fact on which the conclusion has been reached" : Lord Lane CJ, R v Immigration Appeal Tribunal ex p Khan, [1980] QB 790 (Court of Appeal). See also Donaldson P in Alexander Machinery v Crabtree [1974] ICR 120, cited in that case. Article 6.1 of the European Convention on Human Rights also separately requires tribunals, in giving reasons, to "indicate with sufficient clarity the grounds upon which they base their decision" so that the appellant may exercise any right of appeal available: Hadjianastassiou v Greece, (1992) A 252.
- The tribunal confirmed the decision of one adjudicating medical authority by reference to unrecorded findings said to be the same as the findings of an earlier adjudicating medical authority. It did not deal at all with the claimant's evidence as to worsening over the intervening five years. I agree with the parties that the decision is inadequate.
- This was a claim for unforeseen aggravation decided after the abolition of such claims by the Social Security Act 1998. It did not fall within the submission of the Secretary of State accepted in CI/1496/1996 (claims made before Royal assent to the Social Security Act 1998 to continue). I accept the submission of the Secretary of State that that decision also applies to all claims for unforeseen aggravation made before 5 July 1999. In other words, the tribunal was right to consider this case under the rules that applied before 5 July 1999, and I direct the new tribunal also to consider the claim in that way.
- The claimant and representative should note that the new procedures for tribunals include specific procedures under which claimants must notify the clerk about attending for an oral hearing. I have directed that this case be reheard by a tribunal so that there may be a further oral hearing. The tribunal and parties should ensure that the procedure does not prevent this, unless the claimant does not wish to attend a further oral hearing. In particular, the claimant should ensure that his representative is informed as soon as possible of all directions by a tribunal clerk relating to the rehearing, and that the clerk is informed promptly of any request for an oral hearing.
Date: 8 June 2000 (signed) Mr. D. Williams
Commissioner
