DGR/SH/1W/MD
					Commissioner’s File:CI/4987/1995	

					 DSS File:	

SOCIAL SECURITY ADMINISTRATION ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT 1992

APPEAL FROM DECISION OF MEDICAL APPEAL TRIBUNAL ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	For the reasons set out below, the decision of the medical appeal tribunal (“MAT”) given on 16 March 1995 is erroneous in point of law, and accordingly this appeal succeeds.

2.	On 16 April 1993 the claimant, formerly employed as a home care assistant, claimed disablement benefit in respect of Prescribed Disease D7 (Occupational Asthma).  The history of that claim is set out in the submissions of the Secretary of State dated 3 November 1995, and there is no merit in my repeating such history here.  Suffice it to say that the claimant contends that the decision of the MAT of 16 March 1995, confirming the decision of the initial adjudicating medical authority, was in the circumstances erroneous in point of law.  In view of the complexity of the case, I directed an oral hearing.  At that hearing the claimant, who was not present, was represented by Mr Richard Atkinson from the Welfare Benefit Advice Centre at Birkenhead, whilst the Secretary of State appeared by Mr Richard Morgan of the Solicitor’s Office of the Department of Social Security.

3.	The question for determination by the MAT was whether the claimant suffered from Prescribed Disease D7.  If they found that she did, they were required to determine the date from which she first suffered from it, and to assess the extent and duration of any resulting disablement.  Prescribed Disease D7 is defined in Column 1 of Schedule 1 to the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985 [S.I.1985 No 967] as:-

“Asthma which is due to exposure to any of the following agents -

	(a)-(w)

	(x)		any other sensitising agent.”

Sub-paragraphs (a)-(w) set out a list of specific agents.  The claimant contended that, although she had not been exposed to any of the agents set out in sub‑paragraphs (a)‑(w), she had been exposed to other sensitising agents within sub‑paragraph (x), namely human and animal faeces, household dust and lice.  The MAT decided that these did not fall within sub‑paragraph (x).  They said as follows:-

“We have read the scheduled evidence and note the relevant regulations.  We have heard the appellant and her representative and taken their evidence fully into account.  We accept that the appellant suffers from severe asthma which appears to have started about the time she was employed to clean a particularly squalid house in 1985 but there is no history of exposure to any of the agents stipulated in the regulation covering the Prescribed Disease D7.  We note the submission that human and animal faeces, dust and other agents in the house could be brought within the last of the categorised agents namely ‘any other sensitising agent’.  We have, however, to reject this submission as in our view (x) must be interpreted as being of the same nature as the other agents specified and cannot be extended to non‑specific irritants of the sort put forward in the appellant’s submission.”

4.	Now, the adjudication officer had decided that the claimant had been engaged in an occupation involving exposure to sensitising agents falling within sub‑paragraph (x) of Column 2 of the Schedule.   The claimant had at one stage been exposed to human and animal faeces, household dust and lice, and the adjudication officer had proceeded on the basis that these were sensitising agents.  Manifestly, they were not sensitising agents of the types set out in sub‑paragraphs (a) to (x), and therefore they were, in the adjudication officer’s view, other sensitising agents falling within sub‑paragraph (x).

5.	It is to be noted that the adjudication officer had made his decision seemingly without reference to medical advice.  It was essentially a simple matter of fact to say whether or not the claimant had been exposed to human and animal faeces, household dust and lice; however, it involved some medical expertise to say whether or not those agents constituted sensitising agents.  Manifestly, the MAT considered that the adjudication officer had reached the wrong conclusion, and they, unlike the adjudication officer, had the benefit of medical expertise.

6.	However, instead of deciding the diagnostic question whether the claimant was suffering from asthma as a result of the exposure in question, the tribunal took it upon themselves to decide another issue, namely whether animal and human faeces, household dust and lice were sensitising agents, and after concluding that they were not, went on to decide that the claimant was not suffering from asthma as a result of his having been in an occupation falling within sub‑paragraph (x).  But, in my judgment, in so doing, the tribunal exceeded their jurisdiction, and thereby erred in point of law.  

7.	 Whether or not a claimant is employed in a prescribed occupation is a matter for the adjudication officer, and not  for the MAT (see R(I) 4/91).  In the present instance, the adjudication officer had decided that the claimant had been employed in an occupation which involved her in exposure to the agents in question, and that these agents were sensitising agents.  She was therefore in a prescribed occupation, and it was not open to the tribunal to determine otherwise.  It may well be that the agents in question were in fact not sensitising, but, be that as it may, the adjudication officer had decided in effect that they were.  It is somewhat surprising that in a case of this sort the adjudication officer did not seek medical advice before deciding that the claimant was in a prescribed occupation.  But unless and until his decision is reviewed - it is hardly likely to be appealed against by the claimant - it stands, and the tribunal had no authority to challenge it.  All that was open to them was to decide whether or not the claimant suffered asthma as a result of those agents, which had to be regarded as sensitising.  

8.	Mr Morgan pointed out to me forcefully that the MAT were being put in an impossible position by being required to say whether or not the claimant contracted asthma from sensitising agents when, in their view, the agents in question were not sensitising in the first place.  I see the difficulty, a difficulty which arises, in my judgment, from what was in effect a scientific finding by the adjudication officer, with which the tribunal did not agree.

9.	Mr Atkinson urged me to be slow to conclude that the adjudication officer had in fact made a wrong medical finding.  He stated that he had scientific evidence to suggest that human and animal faeces, household dust and lice were sensitising agents, and that if the matter were gone into, it might well be established that the adjudication officer was right all along, and the tribunal wrong.  But, be that as it may, even if the adjudication officer had reached the wrong conclusion, his decision stood, and the MAT were obliged to proceed on the basis that the claimant had been exposed to the relevant agents, which were to be regarded as sensitising. Insofar as the decision in C1/073/1994 might suggest otherwise, I regret that I must dissent therefrom.  Of course, the restriction on the MAT’s jurisdiction did not prevent them from concluding, if they so thought, that the claimant did not derive her asthma from exposure to these agents.  But the MAT did not adopt this course; they simply stated that the agents were “non‑specific irritants, not falling within sub‑paragraph (x)”.  In so doing they exceeded their jurisdiction.

10.	In order to try to overcome the difficulties with which he was faced, Mr Morgan relied on two contentions.  He first argued that, although the adjudication officer had decided that the claimant was engaged in a prescribed occupation within sub‑paragraph (x), this did not necessarily mean that she had actually been exposed to human and animal faeces, household dust and lice.  The MAT were free to proceed on the basis that the claimant had not been exposed to any agents, sensitising or not.  Mr Morgan argued that all that the adjudication officer had decided was that the claimant had been engaged in an occupation of a kind which involved exposure to sensitising agents within sub‑paragraph (x).  It did not follow that the claimant herself had necessarily been so exposed.  She had been merely engaged in an occupation which was the kind of occupation where exposure might arise.  Mr. Morgan gave an analogy.  The law involves advocacy, but it does not follow from this that all lawyers are necessarily advocates.  There is, in my judgment, nothing in this submission.  Manifestly, the adjudication officer was only concerned with the particular occupation in which the claimant had been engaged, and in his case that occupation had involved exposure.  It was the actual occupation that mattered, not the type or class of occupation.  

11.	Mr Morgan then sought to rely on section 60 of the Social Security Administration Act 1992.  That provision, so far as is relevant, reads as follows:-

	“	60.	-	(1)	Subject to the provisions of this Part of this Act, the decision on any claim or question in accordance with the foregoing provisions of the this Part of this Act shall be final; .....

				(2)	Subsection (1) above shall not make any finding of fact or other determination embodied in or necessary to a decision, or on which it is based, conclusive for the purpose of any further decision.”

Mr Morgan argued that the fact that the adjudication officer had decided that the claimant had been engaged in an occupation involving exposure to sensitising agents did not bind the MAT as regards matters which fell for their determination.  However, that provision is of no assistance to Mr Morgan. Although I readily accept that nothing the adjudication officer had decided could bind the MAT in respect of matters which fell within their jurisdiction, the question whether or not animal and human faeces, household dust and lice were sensitising agents was not, for the reasons already given, an issue which properly fell within  their jurisdiction.  The tribunal had no say in the matter, and accordingly section 60(2) had no application.

12.	It follows from what has been said above that I must set aside the tribunal’s decision as being erroneous in point of law for having exceeded their jurisdiction.  I direct that the appeal be reheard by a differently constituted tribunal, who will ensure that they restrict themselves to the matters properly before them.  However, it may well be that during the period prior to the rehearing, the adjudication officer may decide, in the light of the medical view expressed by the MAT, to review his decision that the claimant had been employed in a prescribed occupation, and decide that he had not been so employed, in which event there would be no need for any determination by the MAT.  If he adopts this course, it may well be that the claimant would wish to appeal such a decision to a social security appeal tribunal, and it may be expedient to delay the rehearing of the appeal now before me until the question of any review has been finally disposed of.

13.	If the question of a review does arise, it will be necessary to interpret the meaning of sub‑paragraph (x).  The meaning of that sub‑paragraph has been considered by a Commissioner in CI/073/1994.  In paragraph 18 he says as follows:-

	“	The position therefore is, as I understand it, that because of the words ‘any other sensitising agent’   (my underlining) in paragraph (x), that can be construed only as meaning ‘sensitising’ in the sense that paragraphs (a)-(w), or the substances mentioned therein, are sensitising.  That is the only way of giving any meaning to sub‑paragraph (x).  These are medical matters which I cannot pronounce on but, if for example any of the substances listed in (a)‑(w) were not sensitising substances in the sense in which Mr Connell contends, then the words ‘sensitising’ in sub‑paragraph (x) must be given a similarly limited meaning.  In other words the ‘ejusdem generis’ rule applies to the construction of sub‑paragraph (x).”

I find this analysis difficult to accept.  It seems to me to introduce a sophistication not called for.  In my judgment, all that the words “any other sensitising agent” indicate is that the agents specified in sub‑paragraph (a)‑(w) are to be regarded as sensitising agents, and any agents not included in those sub‑paragraphs will be swept up by sub‑paragraph (x) provided that they are sensitising.  There is no restriction on the type of agents included in sub‑paragraph (x) by reference to the nature of the agents contained in sub‑paragraphs (a)‑(w).  All agents not mentioned in the earlier sub‑paragraphs fall within that sub‑paragraph so long as they are sensitising.   But if they are sensitising, and do not fall within sub‑paragraphs (a)‑(w) they will automatically, as a matter of law, fall within sub‑paragraph (x).

14.	If there has been no review of the adjudication officer’s decision by the time the appeal comes to be reheard, the new MAT will ensure that they restrict themselves to the matters which properly fall for their determination. 

15.	I allow this appeal.

					(Signed)	D.G. Rice	
							Commissioner

					(Date)