RAG-v-Department for Communities (II) [2018] NICom 42

Decision No:  C2/18-19(II)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

INDUSTRIAL INJURIES DISABLEMENT BENEFIT

Application by the claimant for leave to appeal
and appeal to a Social Security Commissioner
on a question of law from a Tribunal’s decision
dated 21 April 2016

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	I grant leave to appeal and proceed to determine all questions arising thereon as though they arose on appeal.  

2.	The decision of the appeal tribunal dated 21 April 2016 is in error of law. The error of law identified will be explained in more detail below.

3.	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. 

4.	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 evidence relevant to the issues arising in the appeal to which I have not had access.  An appeal tribunal which has a Medically Qualified Panel Member is best placed to assess medical evidence and address medical issues arising in an appeal. Further, there may be further findings of fact which require to be made and 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. 

5.	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.

6.	It is imperative that the appellant notes that while the decision of the appeal tribunal has been set aside, the issue of his entitlement to Industrial Injuries Disablement Benefit (IIDB) 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

7.	On 13 April 2015 a decision maker of the Department decided that an earlier decision of the Department, itself dated 26 February 2003, could not be superseded.  The decision dated 26 February 2003 had assessed the degree of disablement arising from an accident dated 30 April 1986 at 25% from 7 October 2002 for life.  An appeal against the decision dated 13 April 2015 was received in the Department on 22 May 2015. The appeal was received outside of the prescribed time limits for making such an appeal but was accepted by the Department.  On 29 June 2015 the decision dated 13 April 2015 was reconsidered but was not changed.

8.	The appeal tribunal hearing took place on 21 April 2016. The appellant was not present. On 27 October 2015 Form REG2(i)D had been received in the Appeals Service (TAS).  In that form, which was signed and dated by the appellant on 11 October 2015, the appellant indicated that he was content for the appeal to proceed without an oral hearing. There was no Departmental Presenting Officer present.  The appeal tribunal disallowed the appeal and confirmed the decision dated 13 April 2015.

9.	On 17 November 2016 an application for leave to appeal to the Social Security Commissioner was received in TAS.  On 25 November 2016 the application for leave to appeal was refused by the Legally Qualified Panel Member (LQPM).  

	Proceedings before the Social Security Commissioner

10.	On 6 January 2017 a further application for leave to appeal was received in the Office of the Social Security Commissioners.  On 30 January 2017 observations on the application for leave to appeal were requested from Decision Making Services (DMS).  In written observations dated 16 February 2017, Mr Hinton, for DMS, opposed the application on all of the grounds advanced by the appellant.  Written observations were shared with the appellant on 16 February 2017. On 29 March 2017 written observations in reply, together with additional documentation, were received from the appellant and were shared with Mr Hinton on 3 April 2017.  On 12 April 2017 a further submission was received from Mr Hinton which was shared with the appellant on 20 April 2017. 

11.	On 6 November 2017 a Social Security Commissioner determined that he was minded to direct an oral hearing of the application and requested that enquiries should be made as to whether the applicant could participate in an oral hearing utilising video-conferencing facilities.  The oral hearing was first listed for 24 April 2018 but could not take place on that date for reasons which were unavoidable. The oral hearing was relisted for 28 June 2018.  The appellant participated through the use of video-conferencing facilities.  The Department was represented by Mr Hinton. 

	Errors of law

12.	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.  What is an error of law?

13.	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.” 

	Analysis

14.	During the course of the proceedings before the Social Security Commissioners and by the time of the oral hearing the principal ground advanced by the appellant was while the appeal tribunal had found that there was deterioration in his condition, it had determined that such deterioration was not relevant as it was not related to the original accident.  The appellant submitted that this was ‘in breach’ of regulation 11(4) of the Social Security (General Benefit) Regulations 1982.  The appellant made reference to the Regulations in Great Britain and to guidance provided by the Department for Work and Pensions in Great Britain on those Regulations but I am wholly satisfied that he meant to refer to those pertaining in Northern Ireland.

15.	In his original written observations on the application for leave to appeal, Mr Hinton made the following submissions on this ground:

‘Issue 1

	The tribunal considered (the appellant’s) deterioration in his condition unrelated to his original injury sustained in the accident. (The appellant) stated this was erroneous and in breach of the Social Security (General Benefit) Regulations 1982 (Regulation 11(4)) and the Social Security Contributions and Benefits (NI) Act 1992.

	The Northern Ireland equivalent to the 1982 Social Security (General Benefit) Regulations referred to by (the appellant), are the Social Security (General Benefit) Regulations (Northern Ireland) 1984.

	The regulation referred to by (the appellant), regulation 11(4) states:

“Subject to paragraphs (5A) and 5(B), 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 an injury or disease received or contracted after and not directly attributable to the relevant accident, shall take account of all such disablement to the extent to which the claimant would have been subject thereto during the period taken into account by the assessment if that other effective cause had not arisen and where, in any such case, the extent of disablement would be assessed at not less than 11 per cent, if that other effective cause had not arisen, the assessment shall also take account of any disablement to which the claimant may be subject as a result of that other effective cause except to the extent to which he could have been subject thereto if the relevant accident had not occurred”.

	(The appellant) also referred to the Social Security Contributions and Benefits (NI) Act 1992 and the relevant passage is paragraph 1(b) Schedule 6 to this Act which provides:

“Regulations may make provisions 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”.

	(The appellant) contended that the above legislation applied to him because the surgical intervention required led to an accelerated degeneration of the adjacent discs.  He contended that this was the other effective cause as laid down in regulation 11(4) and as his assessment was more than 11% this should have led to an increase in his disablement.  Consequently he held that the tribunal erred by not applying the statutory legislation correctly.

	The tribunal in its assessment of the evidence surrounding the surgical intervention concluded that disablement arising from this was unconnected to the relevant industrial accident.  It stated in its reasoning:

“The evidence of the 2 letters respectively in regard to the MRI carried out on 17.10.2008 and the operation of 11.05.2011 from Dr B Consultant Neurosurgeon are noted by the Tribunal.  Dr B refers to problems with the femoral nerve with surgical interventions at L2, L3/L4 and L4/5 to free 4 spinal nerves.  The tribunal notes that none of these nerves were involved in the accident in 1986.  The tribunal is satisfied that the Claimant has a condition of disc degeneration affecting nerve ends and roots.  His current symptoms are not emanating from the 1986 accident but due to the new symptoms coming from the femoral nerve in the left leg.  In short he has developed degenerative disease at other levels not affected by the 1986 accident...”

	The tribunal in arriving at the above conclusion would have taken into account the medical papers relating to (the appellant’s) claim, particularly the two BI118R medical assessment forms.  The first of these forms relates to tabbed document 5 which refers to a medical examination that took place on 30 December 2002.  I would refer to Part 9 Box A of this form.  In this box the medical assessor was of the opinion that (the appellant’s) condition had worsened as a result of the relevant accident and gave a net assessment of 25%. In his opinion this related solely to the relevant loss of faculty arising from the industrial accident in 1986.  At Part 9 Box B the medical adviser is asked the following:

“Notes for completing Box B

	If the total net assessment in Box A is 11% or more and if an O(Post) condition has been identified at Q.b of part 7, assess in Box B the extent to which the presence of the O(Post) condition makes any ‘P’ disability (Q.a of part 7) worse during the period which will be taken into account by the assessment.  Do not assess for the O(Post) condition itself.”

	The medical adviser did not enter any data in Box B because he did not consider there was another effective cause that would have increased the assessment beyond 25%.  At Part 7 of this form the medical adviser was asked to specify the disabilities resulting from the relevant loss of faculty.  He stated “Impaired Spinal Function” and marked this disability ‘F’ because it resulted solely from the relevant loss of faculty.  If the medical adviser would have marked the disability ‘P’ he would have been asked to specify the other effective cause.  However, he did not do this; the medical assessment of 25% related solely to the disabling condition arising from the relevant accident.

	I now refer to the second BI118R form (tabbed document 9).  The medical examiner was asked at Part 5a of this form:

“Have the effects of the accident or disease changed since the assessment under consideration was made?”

	The medical adviser answered “no”.  In other words he was of the opinion that the assessment of 25% still applied in (the appellant’s) case; consequently he did not change his mind with regards to Part 9 Box B and still considered there was no other effective cause.

	In line with the above I would contend that the tribunal did not err in law in reaching the conclusions it did.  It did not interfere with the existing award and it would have taken as findings of fact the observations and opinions of the medical adviser regarding the aforementioned medical assessment forms.  I would contend the tribunal was correct to concur with the findings that there was no other effective cause after the accident to increase the assessment.  Therefore, I would contend it did not err in law with regards to a misinterpretation of regulation 11(4) of the aforementioned regulations.’

16.	In response to these initial written observations on this issue, the appellant made the following submissions:

‘There is a misinterpretation of the regulations:

	In the Department of Work and Pensions Industrial Injuries Disablement Benefits: technical guidance May 2015

“If your disablement is 11% or more, and some other condition arises after the accident but is not directly caused by it, any increase in your disablement due to the accident as a result of that other cause is also used to work out your disablement.” 

I cannot really make that any clearer.  If the tribunal insists that the deterioration is not due to the initial injury, they are still required by law to take this deterioration into account for my total disablement.  If this was a pre-existing injury they could ignore it, but it has arisen after, (and I believe as a direct consequence, known medically as Adjacent Segment Degeneration) it must be part of the final assessment.

	The Tribunal agreed with my contention of the initial medical report, that further degeneration and disablement had arisen, but dismissed this as not being related to the original injury.

	POINT OF LAW: the law states that this condition arising after the accident must be used in the final assessment of disability.’

17.	In a further submission in response, Mr Hinton added the following:

‘(The appellant) contended that the tribunal erred in law because a condition arising after the industrial accident must be taken into account when assessing the total disablement.  The tribunal ignored the medical evidence provided.

(The appellant) contended the law stated that deterioration in his condition had to be taken into account by the tribunal when determining a final assessment of disablement.  Consequently in failed to adhere to the principles laid down in regulation 11(4) of the Social Security (General Benefit) Regulations (Northern Ireland) 1984.  

I would, however refer to issue 1 of my original observations dated 16 February 2017.  Tabbed document 5 of the appeal papers referred to the medical examination that took place on 30 December 2002.  At Part 9 Box A of this form the medical assessor gave a net assessment of 25% and formed the opinion that this assessment related solely to the relevant loss of faculty arising from the industrial accident in 1986.  

Part 9 Box B of the same form asks the medical assessor if there was another effective cause after the industrial accident in 1986 that would have increased the assessment.  The medical assessor left this box blank meaning he did not consider another effective cause was present.  If he thought this was the case he would have marked the disability ‘P’ and asked to provide the other effective cause. However he considered (the appellant’s) impaired spinal function to be solely related to the relevant accident and I would contend he was entitled to form this opinion.  In my original observations I quoted from the tribunal’s statement of reasons in which it stated that surgical interventions concerning the femoral nerve has developed degenerative disease at other levels not affected by the 1986 accident.  The tribunal in assessing the medical reports concurred with the findings of the medical assessor that there was no other effective cause post the 1986 accident to increase the assessment and I would contend it was correct to do so.

(The appellant) contended that Regulation 11(4) of the aforementioned regulations placed a mandatory duty on the tribunal to take his deterioration post-accident into account when determining the assessment.  However, I would contend this is not the intention of regulation 11(4). (The appellant) in his correspondence to the Commissioner’s Office has included a section of the Departmental Submission to the tribunal (page 8) and he has highlighted the passage headed “Assessment of Disablement – Later non-industrial accident or disease”.  I would refer to the opening sentence of this passage which states:

“If the tribunal decides that a later non-industrial accident or disease contributes to the effects of the relevant loss of faculty...”

The phrase “if the tribunal decides” is relevant because this indicates that the tribunal does not have a mandatory duty to take the effects of a later non-industrial accident or disease into account in determining this as another effective cause.  Therefore, it is still my contention that the tribunal was correct to concur with the findings of the medical assessor that there was no other effective cause.  Consequently it did not misinterpret the intention of regulation 11(4).’

18.	During the course of the oral hearing I asked Mr Hinton whether he considered that the statement of reasons for the appeal tribunal’s decision was adequate to explain how it addressed the issue of degeneration and the relationship between any accepted degeneration and the overall assessment of disablement.  Mr Hinton conceded that that the appeal tribunal had not made any reference in the statement of reasons for its decision to regulation 11(4) of the Social Security (General Benefit) Regulations (Northern Ireland) 1984 (‘the 1984 Regulations’).  He submitted, however, that it could be said that it was ‘implicit’ that the appeal tribunal had given consideration to the regulation.  This was because the appeal tribunal had before it a detailed submission prepared by the Department for the appeal tribunal hearing.  The appeal tribunal had acknowledged in the record of proceedings for the hearing that it had considered the Departmental submission.  At paragraph 21 of that submission the writer of the submission had addressed the effect of a later non-industrial accident or disease on the assessment of disablement.  Mr Hinton accepted that the latter issue was one which the appeal tribunal was obliged to consider.  As a consequence of its accepted consideration of the appeal submission, the appeal tribunal must have had the issue in mind and had dealt with it to an adequate extent.  Mr Hinton also noted that the composition of the appeal tribunal included two experienced Senior Medically Qualified Panel Members who would have assessed all of the medical evidence which was before it. 

19.	With respect to Mr Hinton’s careful submissions, I cannot accept them. The issue of degeneration was at the heart of the appeal.  Prior to the commencement of the present proceedings, the appellant had an extant award of IIDB.  That award was made to him in 2003.  As was noted above, through completion of Form BI 168, received in the Department on 17 October 2014, the appellant asked for his existing award to be looked at again.  The basis for that request was that there had been a change of circumstances.  In the completed Form BI 168, the appellant stated that there had been a worsening of his back pain and sciatica and increasing problems with his left leg.  He provided an additional statement and supplementary medical evidence.

20.	The response of the Department was to have the appellant examined by a medical adviser on 1 April 2015.  As is noted in the report of the examination conducted by the medical adviser, that adviser’s opinion was that the evidence did not suggest that the loss of faculty of 25% attributed in 2002 had altered. I repeat what Mr Hinton stated about that aspect of the medical report which was 

‘I now refer to the second BI118R form (tabbed document 9).  The medical examiner was asked at Part 5a of this form:

“Have the effects of the accident or disease changed since the assessment under consideration was made?”

The medical adviser answered “no”.  In other words he was of the opinion that the assessment of 25% still applied in (the appellant’s) case; consequently he did not change his mind with regards to Part 9 Box B and still considered there was no other effective cause.’

21.	Mr Hinton had also noted the following concerning the report of the examination conducted by the medical adviser in December 2002, and which had formed the basis of the extant award: 

‘The medical adviser did not enter any data in Box B because he did not consider there was another effective cause that would have increased the assessment beyond 25%.  At Part 7 of this form the medical adviser was asked to specify the disabilities resulting from the relevant loss of faculty.  He stated “Impaired Spinal Function” and marked this disability ‘F’ because it resulted solely from the relevant loss of faculty.  If the medical adviser would have marked the disability ‘P’ he would have been asked to specify the other effective cause.  However, he did not do this; the medical assessment of 25% related solely to the disabling condition arising from the relevant accident.’

22.	By also not completing ‘Part 9 Box B’, the medical adviser, on 1 April 2015 was endorsing the conclusions of the 2002 report and, most significantly, was concluding that there was no change, no deterioration and no other effective cause which might affect the assessment of disablement. 

23.	Accordingly, the decision maker on 13 April 2015 decided that the earlier decision of the Department, itself dated 26 February 2003, and which had made the appellant’s award, could not be changed, or, in law, be superseded. In his notice of appeal, the appellant maintained that there had been a change of circumstances, namely a deterioration in medical condition, and submitted that he was confused as to why that had not been accepted by the Department. 

24.	As was noted by Mr Hinton, the appeal tribunal was mandated by the appeal submission to answer a number of questions.  The appellant chose not to attend an oral hearing of the appeal, as was his right.  He received a decision notice informing him that his appeal had been disallowed and that the Department decision of 13 April 2015 was confirmed.  He asked for a statement of reasons for the appeal tribunal’s decision.

25.	I can understand that the appellant was perplexed when reading the statement of reasons.  That is because for the first time since he had asked for the decision making him an award of IIDB to be looked at again, on the basis of a worsening of his condition, a decision-making authority had accepted that there had been degeneration.  The statement of reasons contains the following:

‘In short he has developed degenerative disease at other levels not affected by the 1986 accident.’                   

26.	The appeal tribunal went on to state that the symptoms of the degenerative disease could not have flowed from the original industrial accident. I find no fault with that conclusion.

27.	The appellant’s perplexity is centred on why the appeal tribunal, having found that there was degeneration, did not go on to explore the relationship between any accepted degeneration and the overall assessment of disablement.  His own significant researches have led him to regulation 11(4) of the 1984 Regulations. He now asks why the appeal tribunal did not consider the potential application of regulation 11(4). 

28.	As was noted above, Mr Hinton, while conceding that the appeal tribunal has made no specific reference in the statement of reasons to regulation 11(4), submits that it was ‘implicit’ that the appeal tribunal had given consideration to the regulation.  Further, the appeal submission had mandated that the appeal tribunal address the issue and as a consequence of its accepted consideration of the appeal submission, the appeal tribunal must have had the issue in mind and had dealt with it to an adequate extent. 

29.	With respect to that submission, I cannot accept it.  The role of an appeal tribunal is to determine the issues in dispute by an accurate application of the relevant law the facts as found on the evidence through a procedure that satisfies general standards of fairness.  An appeal tribunal must also provide a statement of reasons for its decision which, when read as a whole, provides a detailed explanation of the basis on which the appeal tribunal arrived at its conclusions on the issues before it.  In general terms, the appellant was entitled to know why the degeneration accepted by it did not have an effect on the overall assessment of disablement. More specifically, following his own investigations, he is entitled to ask before the Social Security Commissioner, why the appeal tribunal did not consider the potential application of regulation 11(4) of the 1984 Regulations, or if it did, and found that it did not apply, why it did not give an explicit explanation of that conclusion in the statement of reasons for its decision.

30.	I am of the view, accordingly, that the statement of reasons for the appeal tribunal’s decision is not adequate and, as a consequence, the decision of the appeal tribunal is in error of law.    

Disposal

31.	 I direct that the parties to the proceedings and the newly constituted appeal tribunal take into account the following:

		(i) The decision under appeal is a decision of the Department dated 13 April 2015 a decision maker decided that an earlier decision of the Department, itself dated 26 February 2003, could not be superseded.  The decision dated 26 February 2003 had assessed the degree of disablement arising from an accident dated 30 April 1986 at 25% from 7 October 2002 for life.

		(ii) 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. 

		(iii) 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

	Chief Commissioner

	23 August 2018