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[2009] UKUT 41 (AAC) (23 February 2009)

IN THE UPPER TRIBUNAL File No: CI 3482/08

Administrative Appeals Chamber

23 February 2009

TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007

SOCIAL SECURITY ACTS 1992-2000

APPEAL FROM DECISION OF APPEAL TRIBUNAL

Appellant: [the claimant]

Respondent: Secretary of State for Work and Pensions

Claim for: Disablement Benefit

Appeal Tribunal: Swansea

Tribunal case ref: 248/08/00677

Tribunal date: 3 June 2008 (reasons issued 3.10.08)

DECISION OF THE UPPER TRIBUNAL

The claimant's appeal is allowed. The appeal tribunal's decision is set aside as erroneous in law and the case is remitted under section 12(2)(b) of the Tribunals, etc. Act 2007 to the First-tier Tribunal for redetermination in accordance with the directions given below.

REASONS

Mr P L Howell QC:

1. The decision of the Swansea appeal tribunal sitting on 3 June 2008 is conceded to have involved the error in law identified in the grant of leave dated 6 January 2009 at page 79 and agreed in the written submission of Mr P Brylov on behalf of the Secretary of State dated 15 January 2009 at pages 80-83, namely that the tribunal appears to have misdirected itself by holding that the only diagnosis question relevant for it to consider on this claim for disablement benefit made on 22 October 2007 for prescribed industrial disease A11 was that of episodic blanching, and not the recently introduced alternative condition of sensorineural loss. It is also agreed that the case has to be remitted to a fresh tribunal for redetermination, the claimant's representative Mr J Myers not objecting to this course in his reply observations at pages 85-86.
2. I accept those concessions as rightly made, set aside the tribunal decision, and in accordance with section 12(2)(b) of the 2007 Act remit the case to a freshly constituted first-tier tribunal including a medical expert member, to rehear and redetermine the claimant's appeal against the decision of the Secretary of State on 17 January 2008 refusing the claim of 22 October 2007. Some further directions are needed as follows.
3. The claimant is a former miner now aged 73 and this appears to be his third disablement benefit claim for prescribed disease A11, formerly called vibration white finger. His previous two were in 1997 and 2004 respectively, each unsuccessful on the ground that he did not meet the diagnostic condition of episodic blanching for the disease as then prescribed in paragraph A11 in Part I of Schedule 1 to the Social Security (Industrial Diseases) (Prescribed Diseases) Regulations SI 1985 No 967. There can be no question of reopening any question of entitlement for past periods for which claims have already been determined and refused, but conversely there is nothing to prevent this claimant and others with similar symptoms claiming again in the hope of showing that they do qualify for some benefit at least for the future.
4. From 1 October 2007, the chances of doing so were substantially improved by the recasting of paragraph A11 into two alternative diagnostic tests, the first a reworded blanching condition, and the second a new condition of sensory and manipulative loss, with numbness or tingling. A claimant may now qualify for the diagnosis (of what is now called hand-arm vibration syndrome) with either type of symptoms even if he does not have the other, though there is now an additional requirement that those he does have must have been caused by vibration: see the new form of the prescription as substituted on 1 October 2007 by the Social Security (Industrial Diseases) (Prescribed Diseases) Amendment (No. 2) Regulations SI 2007 No 1753.
5. There is no doubt in my judgment that on its plain wording that prescription applies the new system of alternative diagnostic tests, either one of which can qualify a claimant without the other, to all claims for benefit for PDA11 made on or after it came into force on 1 October 2007, whether they relate to periods of assessment before or after that date. The only relevant qualifications needing to be made are that:

(a) a claimant will (on general principle: cf. R(I) 4/96) be unable to rely on the new sensory symptom test to establish any actual entitlement to benefit for any benefit week before Monday 1 October 2007, because until then the legislation did not and does not provide for him or her to have it; and

(b) by the express transitional provision in regulation 3 of the amending regulations, the alterations to paragraph A11

"3. (1) ... do not apply to a question relating to the blanching of a claimant's fingers [sic] where -

(a) the question arises in connection with a period of assessment which relates to a claim which is made -

(i) before [1 October 2007]; or (ii) within 3 months after [that date] in respect of a period which began before [then]; ..."

6. Because of the words I have underlined at the start of this transitional provision, it is plain in my judgment that its only function is to preserve the old "episodic blanching" condition in its previous form for those claims which depend on a blanching diagnosis and had already been made before the change in the prescription, or within 3 months after it so as to include any period before. Insofar as the new blanching condition is stricter, this enables a claimant with a claim spanning the introduction of the change still to get the benefit of the old one (on a continuing basis, so long as his periods of assessment on the same claim remain unbroken: regulation 3(2)(b)); the three-month overlap period reflecting the provisions of regulation 19(1) and Schedule 4 Social Security (Claims and Payments) Regulations SI 1987 No 1968 by which entitlement to disablement benefit may be claimed so as to extend back for up to 3 months before the actual date of claim.
7. What the transitional provision does not say is that on any claim in the transitional period the entire change is to be disregarded, so that the claimant may not yet rely on the new sensory condition and, if he has such symptoms, will have to wait and reapply after the transitional period is over. Unfortunately however the members of the tribunal in this case appear to have misread it as saying just that, since they declined to consider or make any findings on the sensory condition at all, saying in their statement of reasons at pages 66-67:

" ... if a claim was received between 1.10.07 and 1.1.08 only the criteria relating to blanching [in the old form] applies, where the symptoms began before 1.10.07. As [the claimant's] claim was made on 22.10.07 and the problems with his hands began before 1.10.07, he had to satisfy [those] blanching criteria... It was noted that there was sensory impairment in the fingers of both hands and sensory blunting in the palms of both hands ... it was open to [the claimant] to make a fresh application in respect of the new criteria, given the sensory problems he described."

8. I agree with Mr Brylov's submission that as regards periods of possible entitlement to disablement benefit on or after 1 October 2007 this was simply wrong, and the claimant was and is entitled to have his condition asssessed on the new alternative sensory criteria in case he can now establish such entitlement in that way, even if not by the blanching test. The case is therefore remitted for that to be done and his appeal to be redetermined by the first-tier tribunal, on both aspects of the diagnosis question. As suggested by Mr Brylov in his helpful submission I direct that the Secretary of State is to arrange a further medical assessment and report to be provided for the new tribunal in advance of the rehearing, dealing in detail with whether the claimant satisfies the new sensory criteria on the basis of thermal aesthesiometry and vibrotactile or other appropriate tests, as a separate question from that of blanching (which in view of the date of the claim must continue to be assessed under the old form of the prescription). If the tribunal does find that the claimant meets the diagnostic criteria for disease A11 by either route, it must then go on and detemine the relevant disablement assessment questions, and whether on the basis of its findings the claimant is entitled to any award of disablement benefit on his claim of 22 October 2007, in the usual way as outlined in the Secretary of State's original submission to the tribunal on page 4, subject to 12 below.
9. Where I part company from Mr Brylov's submission is in the treatment of the claim made on 22 October 2007, and the suggestion that it is necessary for the claimant to be required to elect either for or against "backdating" of that claim before it can be determined which form of the prescription of disease A11 should be applied to it. I do not see the necessity for this. It seems to be based on a misreading of the way regulation 19 of the Claims and Payments regulations works, as in paragraph 12 the submission says

"... the possibility exists that the ... claim could be backdated by 3 months (i.e. ... could be treated as being made on 20.7.07) pursuant to Regulation 19(1) ..."

In fact the present regulation 19 (in contrast I think to an earlier version) works the other way round. It is not the claim that is treated as backdated. Its date remains for all purposes, including in particular the transitional regulation set out above, the actual date it was received in the appropriate office. All that happens is that for certain benefits, including this one, the entitlement awarded may extend back to include benefit for up to three months before that date so long as the claimant met all other relevant conditions.

10. It follows (and I so direct the new tribunal) that it is not necessary to impose any requirement on the claimant to elect how his claim of 22 October 2007 is to be treated. Such a claim has to be dealt with in the normal way, as an application for an award of all the (disablement) benefit to which the facts found on the claim entitle the claimant: cf. R(SB) 56/83 para 13. In this context, that requires automatic consideration of whether the claimant qualified for any award of disablement benefit

(a) on the basis of the old episodic blanching test, from 23 July 2007 onwards (normal 3 months before the date of claim); failing which

(b) on the basis of the new sensory test, from 1 October 2007 onwards (earliest date from which benefit on that basis could have been claimed or awarded).

11. Finally the submission raises a difficult issue on the extent to which the rules as to finality of previous decisions would operate in a case such as this, where there has been a past (negative) decision on diagnosis of disease A11 in 1997, which would normally have operated to prevent any later tribunal diagnosing the presence of the disease from finding that its "date of onset" had been any earlier than the day after the original decision, but the diagnostic criteria for what constitutes the disease bearing that number have themselves changed. In theory at least, the later tribunal could find that hand-arm vibration syndrome amounting to PD A11 on the new sensory criteria had been present all along, from before 1997, without being in any way inconsistent with the earlier decision because the questions being addressed are different. Does the rule of finality as explained in R(I) 2/03 Secretary of State v Whalley preclude such a finding merely because the redefined disease still carries the label "A11"? (The submission rightly makes clear that the point only arises in relation to the diagnosis decision given in 1997 on the claiimant's first claim: by the time of the second in 2004 the legislation was different and the same rule did not apply: R(I) 5/04.)
12. As Mr Brylov points out, this question may make a practical difference in some cases (for example claims for reduced earnings allowance) where entitlement can depend on what was the original date of onset of the disease. So far as I can see however this is not such a case (there is no indication the claimant has made a claim for REA, and in view of his age it seems barely conceivable he could do so); I have not had the benefit of full argument on the point and I prefer to reserve any decision on it for a case where it clearly has some practical consequence. I therefore direct the new tribunal that if they do diagnose the presence of disease A11 on the new criteria (if not, then the question never arises at all), they should for the purposes of complying with regulation 6 of the Prescribed Diseases regulations cited above (1) first identify the actual date of onset from which they are satisfied the disease on those criteria was first present, and then if necessary (2) the (later) date which would have to be the formal date of onset if they were bound by the 1997 decision to ignore the actual presence of the disease down to then; with any loss of faculty and disablement assessment periods determined accordingly, if necessary in the alternative. That should enable any immediate questions of entitlement on the actual claim before the tribunal to be dealt with, yet preserve a clear record for the future in case the date of onset arises in a practical sense in any subsequent claim, in which case it will have to be argued and determined then.

23 February 2009

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