CMcA-v-Department for Social Development (II) [2010] NICom 16
Decision No: C3/08-09(II)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

DISABLEMENT BENEFIT

Appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 15 February 2008

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the appeal tribunal dated 15 February 2008 is in error of law.  The error of law identified will be explained in more detail below.

2.	Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against.

3.	For further reasons set out below, I am unable to exercise the power conferred on me by Article 15(8)(a) of the Social Security (Northern Ireland) Order 1998 to give the decision which the appeal tribunal should have given.  This is because there is detailed evidence relevant to the issues arising in the appeal, including medical evidence, to which I have not had access, and there may be further findings of fact which require to be made.  Further I do not consider it expedient to make such findings, at this stage of the proceedings.  Accordingly, I refer the case to a differently constituted appeal tribunal for re-determination.

4.	In referring the case to a differently constituted appeal tribunal for re-determination, I direct that the appeal tribunal takes into account the guidance set out below.

5.	It is imperative that the appellant notes that while the decision of the appeal tribunal has been set aside, the issue of her entitlement to industrial injuries disablement benefit (II) remains to be determined by another appeal tribunal.  In accordance with the guidance set out below, the newly constituted appeal tribunal will be undertaking its own determination of the legal and factual issues which arise in the appeal.

	Background

6.	On 29 May 2007, a decision-maker of the Department decided that:

	(i)	the appellant was suffering from a loss of faculty as a result of the relevant disease;

	(ii)	the relevant loss of faculty was impaired function of impaired skin function [sic];

	(iii)	the degree of disablement was assessed at 5%;

	(iv)	the period of assessment was from 10 June 2007 to 10 June 2010;

	(v)	the assessment was final;

	(vi)	the appellant was not entitled to II from and including 13 June 2007.

7.	An appeal against the decision dated 29 May 2007 was received in the Department on 22 June 2007.

8.	The appeal tribunal hearing took place on 15 February 2008.  The appellant was present and gave oral evidence.  The appellant was examined by the medically qualified panel members (MQPM) of the appeal tribunal.

9.	The appeal tribunal disallowed the appeal, and confirmed the decision dated 29 May 2007.

10.	On 16 May 2008 an application for leave to appeal to the Social Security Commissioner was received in The Appeals Service.  On 3 June 2008, the application for leave to appeal was refused by the legally qualified panel member (LQPM).

	Proceedings before the Social Security Commissioner

11.	On 18 June 2008, a further application for leave to appeal to the Social Security Commissioner was received in the Office of the Social Security Commissioners and Child Support Commissioners.  In the application for leave to appeal, the appellant submitted that the decision of the appeal tribunal was in error of law as all of the appellant’s problems with her skin had been caused by her employment.

12.	On 16 July 2008 further correspondence was received from the appellant.  In this correspondence, the appellant indicated that she had been diagnosed with a new medical condition – carpal tunnel syndrome – which she also associated with her working environment.

13.	On 3 September 2008 observations were sought from Decision Making Services (DMS) and these were received on 29 September 2008.  DMS opposed the application on the grounds cited by the appellant.  These observations were shared with the appellant on 8 October 2008.

14.	On 22 January 2009, I directed that DMS provide further observations on the following question:

‘To what extent did the appeal tribunal consider the ‘offset’ provisions in regulation 11 of the Social Security (General Benefit) Regulations (Northern Ireland) 1984, as considered in CI/34/1993?’

15.	On 6 February 2009, further observations in reply to the direction were received from DMS.  Having reviewed the findings of the examination conducted by the MQPM, and the reasons for the appeal tribunal’s decision concluded that:

‘… the tribunal has met the criteria laid down in CI/34/93.  It clearly recorded the findings of the medical examination carried out by its members and placed emphasis on Dr Eedy’s report which favoured an underlying psoriatic tendency, thereby establishing firm grounds for making an offset.

… the tribunal gave full consideration to the offset provisions in regulation 11 of the aforementioned regulations.’

16.	On 18 March 2009 I granted leave to appeal, and directed an oral hearing of the appeal.

17.	On 3 April 2009, a submission was received from the Law Centre (Northern Ireland) who now had authority to act as representative for the appellant.  In this submission, the appellant’s representative argued that the reasons for the appeal tribunal’s decision were inadequate to conform to the principles in CI/34/1993.

18.	The further submission from the appellant’s representative was shared with DMS on 20 April 2009.

19.	The oral hearing of the appeal took place on 19 June 2009.  At the oral hearing, the appellant was not present but was represented by Mr Hatton from the Law Centre (Northern Ireland), and the Department was represented by Mr Hinton of the DMS section.  Gratitude is extended to both representatives for their detailed and constructive observations, comments and suggestions.

20.	At the oral hearing of the appeal Mr Hatton, for the appellant, indicated that he would not be relying on the grounds set out in the original application for leave to appeal, but would rely on the specific ground set out by me when granting leave to appeal.

	Errors of law 

21.	A decision of an appeal tribunal may only be set aside by a Social Security Commissioner on the basis that it is in error of law.

22.	In R(I) 2/06 and CSDLA/500/2007, Tribunals of Commissioners in Great Britain have referred to the judgment of the Court of Appeal for England and Wales in R(Iran) v Secretary of State for the Home Department ([2005] EWCA Civ 982), outlining examples of commonly encountered errors of law in terms that can apply equally to appellate legal tribunals.  As set out at paragraph 30 of R(I) 2/06 these are:

“(i)	making perverse or irrational findings on a matter or matters that were material to the outcome (‘material matters’);
(ii)	failing to give reasons or any adequate reasons for findings on material matters;
(iii)	failing to take into account and/or resolve conflicts of fact or opinion on material matters;
(iv)	giving weight to immaterial matters;
(v)	making a material misdirection of law on any material matter;
(vi)	committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of proceedings; …

Each of these grounds for detecting any error of law contains the word ‘material’ (or ‘immaterial’).  Errors of law of which it can be said that they would have made no difference to the outcome do not matter.”

	The error of law in the instant case

23.	It is regrettable that the LQPM who served in the appeal tribunal which heard and determined the appeal now subject to an appeal to the Social Security Commissioner, has, since the date of the decision of the appeal tribunal, passed away.

	The decision under appeal

24.	As was noted above, the decision under appeal to the appeal tribunal was a decision of the Department dated 29 May 2007 in which a decision-maker of the Department decided that:

	(i)	the appellant was suffering from a loss of faculty as a result of the relevant disease;

	(ii)	the relevant loss of faculty was impaired function of impaired skin function [sic];

	(iii)	the degree of disablement was assessed at 5%;

	(iv)	the period of assessment was from 10 June 2007 to 10 June 2010;

	(v)	the assessment was final;

	(vi)	the appellant was not entitled to II from and including 13 June 2007.

25.	In the appeal submission, prepared for the appeal tribunal hearing, there is some reference to the legal and evidential basis upon which the decision-maker arrived at the decision under appeal.  At paragraphs 3 and 4 of section 4 of the appeal submission, there is a reference to a report of an examination by a medical adviser (MA) of the Department, on which the decision-maker has relied in arriving at the relevant decision.

26.	The report of the MA is attached to the appeal submission as documents 4 and 4A.  Part 6 of the report is headed ‘Opinion on the customer’s disabilities’.  In the first part of this section, the MA is asked to specify the disabilities which result from the identified loss of faculty.  Further, the MA is asked to indicate whether the disability results from the relevant loss of faculty or whether there is another effective cause.  In the instant report, the MA has identified ‘Impaired Skin Function’ as a disability but has also indicated that there is another effective cause for the relevant loss of faculty.  Having so identified another effective cause, the MA is asked to specify that condition and indicate whether the condition existed before or after the onset of the prescribed disease.  In the instant case, the MA has identified ‘Psoriasis’ and marked it as a condition which existed before or after the onset of the prescribed disease.

27.	Part 8 of the report is headed ‘Advice on the assessment’.  In this section, the MA has entered a gross assessment of disablement at 20% but has also added a 15% ‘offset’ for the earlier identified condition of psoriasis.

28.	It is clear, therefore, that the identified degree of disablement in the decision dated 29 May 2007, at 5%, was arrived at by deducting from the gross assessment of disablement of 20%, 15% for what was submitted to be the pre-existing condition of psoriasis.

	The relevance of regulation 11 of the Social Security (General Benefit) Regulations (Northern Ireland) 1984, as amended

29.	In the appeal submission, there is no reference to the legal basis on which the decision-maker, in the decision dated 29 May 2007, arrived at the identified degree of disablement.  At paragraph 10 of section 5 of the appeal submission, the following is noted, however:

‘10.	If the tribunal decides that a pre-existing condition contributed to the effects of the relevant loss of faculty and that some disablement would have been present as a result of the pre-existing condition even if (the claimant) had not contracted the prescribed disease, the tribunal must assess the gross disability arising from both the relevant loss of faculty and the other effective cause and from the gross assessment offset (deduct) the extent of the disability which would have been present had the relevant prescribed disease not been contracted.

In this way the remaining net assessment will include an amount due to any increased disability which arises from the interaction between the relevant loss of faculty and the pre-existing other effective cause.  This is what the legislation requires.

Social Security Contributions and Benefits Act, Schedule 6.

Social Security (General Benefit) Regulations (Northern Ireland) 1984, reg 11(2) and (3)’

30.	Schedule 6 of the Social Security Contributions and Benefits derives from sections 68(6) and 103(5) of the 1992 Act. Section 69(6) has no relevance in this case, in that it deals with severe disablement allowance.

31.	Section 103 provides that:

‘103.—(1) Subject to the provisions of this section, an employed earner shall be entitled to disablement pension if he suffers as the result of the relevant accident from loss of physical or mental faculty such that the assessed extent of the resulting disablement amounts to not less than 14 per cent. or, on a claim made before 19th November 1986, 20 per cent.

(2) In the determination of the extent of an employed earner’s disablement for the purposes of this section there may be added to the percentage of the disablement resulting from the relevant accident the assessed percentage of any present disablement of his—

(a) which resulted from any other accident after 4th July 1948 arising out of  and in the course of his employment, being employed earner’s employment, and

(b) in respect of which a disablement gratuity was not paid to him after a final assessment of his disablement,

(as well as any percentage which may be so added in accordance with regulations under subsection (2) of section 109 below made by virtue of subsection (4)(b) of that section).

(3) Subject to subsection (4) below, where the assessment of disablement is a percentage between 20 and 100 which is not a multiple of 10, it shall be treated—

(a) if it is a multiple of 5, as being the next higher percentage which is a multiple of 10, and

(b) if it is not a multiple of 5, as being the nearest percentage which is a multiple of 10,

and where the assessment of disablement on a claim made on or after 19th November 1986 is less than 20 per cent., but not less than 14 per cent., it shall be treated as 20 per cent.

(4) Where subsection (2) above applies, subsection (3) above shall have effect in relation to the aggregate percentage and not in relation to any percentage forming part of the aggregate.

(5) In this Part of this Act “assessed”, in relation to the extent of any disablement, means assessed in accordance with Schedule 6 to this Act; and for the purposes of that Schedule there shall be taken to be no relevant loss of faculty when the extent of the resulting disablement, if so assessed, would not amount to 1 per cent.

(6) A person shall not be entitled to a disablement pension until after the expiry of the period of 90 days (disregarding Sundays) beginning with the day of the relevant accident.

(7) Subject to subsection (8) below, where disablement pension is payable for a period, it shall be paid at the appropriate weekly rate specified in Schedule 4, Part V, paragraph 1.

(8) Where the period referred to in subsection (7) above is limited by reference to a definite date, the pension shall cease on the death of the beneficiary before that date.’

32.	Schedule 6 is headed ‘Assessment of Extent of Disablement’.  Under the sub-heading ‘General provisions as to the method of assessment’, paragraph 1(b) provides that:

‘1. For the purposes of section 103 above and Part II of Schedule 7 to this Act, the extent of disablement shall be assessed, by reference to the disabilities incurred by the claimant as a result of the relevant loss of faculty, in accordance with the following general principles—

… (b) regulations may make provision as to the extent (if any) to which any disabilities are to be taken into account where they are disabilities which, though resulting from the relevant loss of faculty, also result, or without the relevant accident might have been expected to result, from a cause other than the relevant accident; …’

33.	It is important to note that the references in paragraph 1 of Schedule 6 are to disabilities resulting from, and causes other than the relevant accident.

34.	Regulation 11(2) and (3) of the Social Security (General Benefit) Regulations (Northern Ireland) 1984 provide that:

‘(2) When the extent of disablement is being assessed for the purposes of section 57, any disabilities which, though resulting from the relevant loss of faculty, also result, or without the relevant accident might have been expected to result, from a cause other than the relevant accident (hereafter in this regulation referred to as “the other effective cause”) shall only be taken into account subject to and in accordance with the following provisions of this regulation.

(3) Subject to paragraphs (5A) and (5B), any assessment of the extent of disablement made by reference to any disability to which paragraph (2) applies, in a case where the other effective cause is a congenital defect or is an injury or disease received or contracted before the relevant accident, shall take account of all such disablement except to the extent to which the claimant would have been subject thereto during the period taken into account by the assessment if the relevant accident had not occurred.’

35.	Once again, the references in regulation 11(2) and (3) are to the relevant accident.

36.	At the oral hearing of the appeal, I pointed out to both parties to the proceedings that the claim to II was made on the basis that the appellant was suffering from a prescribed industrial disease, as a result of which she had a loss of faculty and a degree of disablement sufficient to meet the prescribed conditions for entitlement to the benefit.  It had appeared that the decision-maker, as part of the decision-making process, arrived at the assessment of disablement, after applying an ‘offset’, and that the appeal submission was submitting that the legislative power to apply the offset was to be found in provisions which, at first glance, applied to industrial accidents.

37.	There is more specific provision for prescribed industrial diseases in the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations (Northern Ireland) 1986, as amended.  At first glance, these regulations do not contain provisions which equate to regulation 11 of the Social Security (General Benefit) Regulations (Northern Ireland) 1984.  Is there legislative power, therefore, in assessing the degree of disablement arising from a relevant loss of faculty, arising from a prescribed industrial disease, to take into account whether a pre-existing condition contributed to the effects of the relevant loss of faculty and that some disablement would have been present as a result of the pre-existing condition?

38.	It seems to me that the existing power, clearly applicable to claims in connection with industrial accidents, and as set out in the legislative provisions noted above, is imported into the parallel assessment scheme for prescribed diseases.

39.	Regulations 10 and 11 of the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations (Northern Ireland) 1986 provide that:

‘Application of Chapters IV and VI of Part II of the Act

10. The provisions of Chapters IV and VI of Part II of the Act which relate to industrial injuries benefit and sickness benefit by virtue of section 50A shall, in relation to prescribed diseases, be subject to the following provisions of this Part of these regulations, and, subject as aforesaid, to the additions and modifications set out in Schedule 2 to these regulations.

Application of Claims and Payments Regulations and Benefit Regulations

11.—(1) Save in so far as they are expressly varied or excluded by, or are inconsistent with, the provisions of this Part of these regulations or of regulation 23 or 34, the Claims and Payments Regulations and the Benefit Regulations shall apply in relation to prescribed diseases as they apply in relation to accidents.

(2) Save as provided in this Part of these regulations or where the context otherwise requires, references in the aforesaid regulations to accidents shall be construed as references to prescribed diseases, references to the relevant accident shall be construed as references to the relevant disease, references to the date of the relevant accident shall be construed as references to the date of onset of the relevant disease, and in regulation 15 of the Benefit Regulations (increase of disablement pension in cases of special hardship) the reference to the effects of the relevant injury shall be construed as a reference to the effects of the relevant disease.’

40.	Schedule 2 to the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations (Northern Ireland) 1986 provides that:

‘Modifications of Chapters IV and VI of Part II of the Act in their application to benefit and claims to which these regulations apply

In Chapters IV and VI of Part II of the Act references to accidents shall be construed as references to prescribed diseases and references to the relevant accident shall be construed as references to the relevant disease and references to the date of the relevant accident shall be construed as references to the date of onset of the relevant disease.’

41.	In my view, the cross-construal of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, the Social Security (General Benefit) Regulations (Northern Ireland) 1984, and the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations (Northern Ireland) 1986, so that references to accidents shall include prescribed diseases, is sufficient to conclude that the power to take into account whether a pre-existing condition contributed to the effects of the relevant loss of faculty and that some disablement would have been present as a result of the pre-existing condition, clearly applicable to claims in connection with industrial accidents, and as set out in the legislative provisions noted above, is also applicable in the parallel assessment scheme for prescribed diseases.

42.	In the alternative, it could also be arguable that the general principles of causation would permit the disregard of a percentage disablement which had obviously been present prior to the contraction of the prescribed disease.  While that is an interesting proposition, it is not necessary to consider it in light of my conclusions that the power to consider the effect of pre-existing condition in prescribed disease cases is to be found in the existing legislative provisions for that scheme.

	What is the correct approach to the application of regulation 11 of the Social Security (General Benefit) Regulations (Northern Ireland) 1984?

43.	The proper approach to the application of the Great Britain equivalent of regulation 11 was considered in detail by Commissioner Mesher in CI/34/93, where he gave guidance to appeal tribunals as to the how the Regulation should be applied.  He stated, at paragraphs 16 to 19:

‘16. The starting point must be the terms of regulation 11 of the Social Security (General  Benefit)  Regulations 1982. Paragraph (3) provides:

"(3) An assessment of the extent of disablement made by reference to any disability to which paragraph (2) applies, in a case where the other effective cause is a congenital defect or is an injury or disease received or contracted before the relevant accident, shall take account of all such disablement except to the extent to which the claimant would have been subject thereto during the period taken into account by the assessment if the relevant accident had not occurred."

17.  Under paragraph (2) the disabilities caused by the relevant loss of faculty must also have another effective cause before paragraph (3) can operate.  Then, by definition, some disability would have resulted from the other effective cause during the period taken into account by the assessment of disablement, or might have been expected to result.  Paragraph (3) applies where the other effective cause arises before the relevant accident, but would result in disability in that period.  It requires the adjudicating authority first to assess the disabilities resulting from the relevant loss of faculty and any other effective causes and then to deduct ("offset") an assessment of the disability which the claimant would have suffered in the period of assessment if the relevant accident had never happened.  Thus the focus must be on the disabilities which would have been suffered in the period covered by the assessment of disablement on the hypothetical assumption that there had not been an industrial accident.  It is quite possible that a condition which was causing no symptoms at the date of the relevant accident could cause disability during the period of assessment.  Providing that the cause of that disability was a congenital defect or an injury or disease received or contracted before the relevant accident, and that the proper findings of fact are made, paragraph (3) then requires an offset.  That is the natural, straightforward, reading of regulation 11(3). Do any Commissioner's" decision suggest anything to the contrary?

18.  The proper approach was described very clearly indeed by the then Chief Commissioner in R(I) 2/74.  In paragraph 24 of that decision he wrote:

"The question for the tribunal was therefore not whether at the date of the accident [12 January 1971] the condition of the claimant's left foot was abnormal compared with that of a man of the same age etc.  (Schedule 4 paragraph 1(a) [now paragraph 1(a) of Schedule 6 to the Social Security Contributions and Benefits Act 1992]), but whether during any period after 6th March 1972 [the date the assessment began] and to what extent the claimant would have been subject to disability in his foot if the relevant accident had not occurred.  The question what was the condition of the claimant's foot before the accident no doubt was a preliminary question calling for an answer.  But the final, vital, statutory question was to what extent, if the relevant accident had not occurred, the claimant would have been subject to disablement during the relevant assessment period after the accident.  That vital question the tribunal never answered, as the record shows."

That passage supplies the essential context to what the Chief Commissioner wrote in paragraph 25 of that decision, part of which is often quoted without being understood.  He wrote:

"No doubt there are cases where the answers may seem obvious.  If a man has had his hand amputated before the relevant accident it goes without saying that he would have suffered from disability in that arm whether the subsequent relevant accident to that arm had happened or not.  In some cases that disability has already been assessed.  Even however if in such a case findings of fact on the various questions arising under the regulation may be unnecessary, in my judgment this was not such a case.  The accident to the claimant's left foot at the age of 16 would have happened in 1929 or 1930.  A pre-existing condition and a disability are different things: the one is positive and indicates what was there at the time of the accident: the other is usually negative and indicates that the claimant cannot do certain things owing to the relevant loss of faculty.  I think that in this case the tribunal should have found the facts and recorded their reasons much more specifically in terms of the actual Act and regulation."

It could not be plainer in context that the Chief Commissioner was requiring findings of fact both on the existence of a pre-existing condition and on the disabilities that would have resulted from that condition in the period of assessment even if the relevant accident had never happened.  He was not requiring that a pre-existing condition must have been causing some disability prior to the relevant accident before there could be an offset.

19.  Subsequent Commissioners' decisions emphasise that if there is merely a finding of fact on the existence of a pre-existing condition that does not justify an offset.  There must also be a finding of fact on the disability which would have resulted in the period of assessment.  That is again put very clearly in paragraph 6 of R(I) 8/74, where there had been a finding only that the claimant had a hysterical disposition, not on what disability she would have suffered if the industrial accident had never happened.  The statement in paragraph 20 of R(I) 13/75 that the regulation "does not authorize an offset in respect of a pre-existing personality defect; it only authorizes an offset for a disability" is simply a summary of the effect of R(I) 8/74.  It does not carry the meaning that a disability must exist at the date of the relevant accident before an offset is authorised, nor does any other part of R(I) 13/75.  Similarly, in R(I) 3/76 the statement in paragraph 12(c) that an "offset is only authorised in respect of a disability, not in respect of a cause or a potential cause of a disability" is no more than a restatement of the same point as made in paragraph 20 of R(I) 13/75.’

44.	Further, at paragraph 25, he stated:

‘25.  I note that the author of Rowland, Medical and Disability Appeal Tribunals: the Legislation (1993 edition), in his comments on regulation 11, after mentioning the Commissioners' decisions cited above, says:

"An adjudicating medical authority might legitimately apply an offset if a pre-existing, and previously symptomless, condition could have been expected to produce disability at some time even if the accident had not occurred."

	I endorse his immediately following comment that:

"such reasoning must be clear, and a medical appeal tribunal which fails to record good reasons for applying an offset in a case where a claimant had asserted that he or she had no symptoms before the relevant accident is liable to find its decision set aside on appeal."

	It cannot be emphasised too firmly that an offset cannot be justified merely by a finding that a claimant had some predisposition or liability to develop some disabling condition.  There must be a finding that the claimant would have suffered a disability due to the other effective cause even if the industrial accident had never happened.’

45.	It is slightly unfortunate that the term ‘offset’, with the implications of a deduction from what would otherwise be an award, has entered the analysis of regulation 11, as the term ‘offset’ does not appear in the legislative provisions themselves.  Nonetheless, I adopt and accept the reasoning and analysis of Commissioner Mesher in CI/34/93, which, in my view, properly reflects the law in Northern Ireland, on the proper application of regulation 11 of the Social Security (General Benefit) Regulations (Northern Ireland) 1984.  It is important to note that the reasoning employed by Commissioner Mesher was in the context of the application of regulation 11 to the assessment of disablement in industrial accident cases.  I also find that the reasoning is equally applicable to the application of regulation 11 to the assessment of disablement in prescribed disease cases.

	How did the appeal tribunal in the instant case approach the application of regulation 11?

46.	The statement of reasons for the appeal tribunal’s decision is brief, and reads as follows:

‘The weight of evidence supports Dr Eedy’s observation 30.6.03 that “The appearance of (the claimant’s) hand rashes is really one more of psoriasis than vesicular eczema”.  Consequently, we accept the report and assessment of the medical officer (documents 4 and 4A) as factual.  We confirm the decision of 28.5.07.’

47.	It is also important to note that the appeal tribunal recorded the findings of the examination conducted by the MQPM, as follows:

‘Examination of (the claimant’s) hands shows an erythematous rash over the palms and to lesser extent the fingers of both hands.  There are no blisters or excidate.  The finger nails show no psoriatic pithing and there is no arthritis in the hands.

The soles of the feet show a similar erythematous rash but with considerable hyperkeratosis over the heels.’

48.	As was noted above, DMS in their written response to my direction concerning the appeal tribunal’s approach to the applicability, having reviewed the findings of the examination conducted by the MQPM, and the reasons for the appeal tribunal’s decision concluded that:

‘… the tribunal has met the criteria laid down in CI/34/93.  It clearly recorded the findings of the medical examination carried out by its members and placed emphasis on Dr Eedy’s report which favoured an underlying psoriatic tendency, thereby establishing firm grounds for making an offset.

… the tribunal gave full consideration to the offset provisions in regulation 11 of the aforementioned regulations.’

49.	In its written response to the observations from DMS, the Law Centre submitted that the appeal tribunal had erred to make the necessary findings of fact regarding the disability which the appellant would have suffered from had she not contracted the prescribed disease; that it was not enough for the appeal tribunal to find, on its own, that the appellant had an underlying symptomless condition or a predisposition to a condition; and that the appeal had done what was warned against in CI/34/1993, when the appellant had asserted that she had no other symptoms prior to the onset of the prescribed disease.

50.	In my view, and with respect to the late LQPM, the reasons which the appeal tribunal has set out for its decision are insufficient to meet the standards set out in CI/34/1993.  That decision emphasises that 

	(i)	‘… the focus must be on the disabilities which would have been suffered in the period covered by the assessment of disablement on the hypothetical assumption that there had not been an industrial accident’;

	(ii)	there must be findings both on the existence of a pre-existing condition and on the disabilities that would have resulted from that condition in the period of assessment even if the relevant prescribed disease had not been contracted; and

	(iii)	the reasoning of the appeal tribunal must be clearly recorded, particularly where, as in the instant case, the appellant had asserted that she did not have any relevant symptoms before the onset of the prescribed disease.

51.	Looking at the reasons for the appeal tribunal’s decision, I am of the view that there are no findings in fact on the existence of a pre-existing condition and on the disabilities that would have resulted from that condition in the period of assessment even if the relevant accident had never happened.  Further, the reasoning of the appeal tribunal does not address the appellant’s assertions that she did not have any relevant symptoms before the onset of the prescribed disease.

52.	I do accept that there is a cross-reference to the report of Dr Eedy, with Dr Eedy’s conclusions that the appellant’s skin problems were more suggestive of psoriasis.  This cross-reference is not, in itself, sufficient to meet the appropriate standard with respect to the application of regulation 11.  It merely gives an opinion on the appellant’s medical condition at a particular period in time, and it does not assess the disabilities that would have resulted even if the relevant prescribed disease had not been contracted, and does not address the appellant’s contentions that she had no relevant prior symptoms.  I do not accept, in addition, that it is sufficient for the appeal tribunal to accept and adopt the report of the assessment without providing further reasons why it finds that regulation 11 should be applied.

53.	Accordingly, and with regret, I find that the decision of the appeal tribunal dated 15 February 2008 is in error of law.

	Disposal

54.	The decision of the appeal tribunal dated 15 February 2008 is in error of law.  Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against.

55.	I am unable to exercise the power conferred on me by Article 15(8)(a) of the Social Security (Northern Ireland) Order 1998 to give the decision which the appeal tribunal should have given.  This is because there is detailed evidence relevant to the issues arising in the appeal, including medical evidence, to which I have not had access, and there may be further findings of fact which require to be made.  Further I do not consider it expedient to make such findings, at this stage of the proceedings.  Accordingly, I refer the case to a differently constituted appeal tribunal for re-determination.

56.	In deciding whether the decision of the Department, dated 29 May 2007 is correct, and, in particular, whether the Department was correct to apply regulation 11 of the Social Security (General Benefit) Regulations (Northern Ireland) 1984, the appeal tribunal is directed to take into account the principles set out in CI/34/1993.

57.	It will be for both parties to the proceedings to make submissions, and adduce evidence in support of those submissions, on all of the issues relevant to the appeal.  In this respect, the appellant’s representative should note my comments, made above, in connection with the provision of witness testimony.

58.	It will be for the appeal tribunal to consider the submissions made by the parties to the proceedings on these issues, and any evidence adduced in support of them, and then to make its determination, in light of all that is before it.

(signed):  K Mullan

Commissioner

(dated):	25 February 2010