Commissioner's File: CI 17/97
Mr Commissioner Mesher
21 July 1997 

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT 1992 
SOCIAL SECURITY ADMINISTRATION ACT 1992

APPEAL FROM DECISION OF SOCIAL SECURITY APPEAL TRIBUNAL ON A QUESTION OF LAW 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Claim for: Disablement Benefit
Appeal Tribunal: North Shields SSAT 

1. The adjudication officer's appeal is allowed. The decision of the North Shields social security appeal tribunal dated 30 October 1996 is erroneous in point of law, for the reason given below, and I set it aside. The appeal is referred to a differently constituted social security appeal tribunal for determination in accordance with the directions given in paragraphs 13 to 17 below (Social Security Administration Act 1992, section 23(7)(b)). 

2. The essential background is set out in the appeal tribunal's findings of fact: 
  
"1. [The claimant] was born on 13 July 1934. He left school at 15 and went to work in the shipyards where he had a variety of jobs.
2. In 1968 and 1973 he had accidents at work and made claims for Disablement Benefit. His wife helped him complete the forms on both occasions as [the claimant] has difficulty reading and writing. He was off work for short periods on both occasions and no claims were made for Special Hardship Allowance.
3. In 1978 he made a claim for Disablement Benefit for occupational deafness but this claim was disallowed.
4. [The claimant] continued working in the shipyards and was advised through the boilermakers union to make a claim for vibration white finger against his employers. In 1991 he received compensation of £1,100. He was still employed at the shipyards.
5. In early 1992 [the claimant] went on the sick because of problems with his big toe. He had an operation for replacement of the joint in July 1992 and hoped he would be able to return to work after the operation. The replacement joint became infected and had to be removed. In 1993 he had a further operation to have the joint fused. He has not been able to return to work in the shipyards.
6. In 1995 he was advised by a friend to claim again for occupational deafness and PD A11.
7. On 3 January 1996 [the claimant] signed claim forms for Disablement Benefit and REA for PD A11. Both of these claim forms had been completed by his wife. He had asked to claim REA from October 1992."
The claim forms were received in the Department on 8 January 1996.

3. The claimant must have been found to have been suffering from vibration white finger from some date prior to October 1990 and had disablement assessed at 1% or more, although I can find no details in the papers. That is because it was accepted by the adjudication officer, in relation to the claim for reduced earnings allowance, that as a result of the relevant loss of faculty the claimant was incapable and likely to remain permanently incapable of following his regular occupation and was incapable of suitable employment of an equivalent standard. Reduced earnings allowance was awarded at the maximum statutory rate from 4 October 1995 to 1 October 1996. In the same decision, issued on 14 June 1996, the adjudication officer decided that the claimant was not entitled to reduced earnings allowance ("REA") from 1 October 1992 to 4 October 1995, because the claim for that period was not made within the time-limit and continuous good cause for the delay in claiming had not been proved.

4. The normal time-limit for claiming for any day of potential entitlement to REA is three months from that day (Social Security (Claims and Payments) Regulations 1987, Schedule 4, paragraph 5), but that limit may be extended where the claimant proves that there was continuous good cause for the failure to claim from the end of the normal limit to the day of claim (regulation 19(2)). The adjudication officer took the view that good cause had been shown back to the day of posting the claim form, so that the claim was in time for a period going back three months before to 4 October 1995. However, the good cause extended no further because the claimant could reasonably have been expected to make enquiries to find out what his rights were to disablement benefit and REA for vibration white finger. In particular, as it was put in paragraph 8 of part 6 of the adjudication officer's written submission to the appeal tribunal on form AT2, the claimant was aware, from the making of the civil claim against his employers in 1989, from which he received a payment in 1991, that his vibration white finger was work-related. It was submitted that a Commissioner had held in decision R(I) 82/53 that good cause should not be accepted where a claimant did not realise that the incapacity suffered was a prescribed disease, but was aware that it was caused by work.

5. The claimant appealed against the decision on backdating. At the hearing on 30 October 1996, his contention, according to the appeal tribunal's reasons for decision, was that he did not know that vibration white finger was a prescribed disease and therefore did not know to claim disablement benefit even after he obtained compensation from his employers for the disease. The presenting officer expressly repeated the point made in paragraph 8 of part 6 of the written submission.
6. The appeal tribunal allowed the appeal and decided that the claimant had proved continuous good cause throughout the period from 1 October 1992 to 8 January 1996. It put its reasons as follows:
  
"1. ... Whilst we accept that ignorance of itself does not amount to good cause we considered that [the claimant] had a number of health problems, including deafness and problems with his big toe. When he left work in 1992 he hoped to be able to return to his regular occupation.
2. We did not consider that just because he had made claims for accidents in 1968 and 1973 and deafness in 1978 he was alerted to the possibility that vibration white finger was a prescribed disease. We took into account [the claimant's] education, difficulty with reading and the fact that he always got back to work quickly after the prior accidents. Taking all these factors into account we considered that [the claimant] had acted reasonably from 1992 to the end of 1995 in not making enquiries as to whether vibration white finger was a prescribed disease. From the end of 1995 until the claim was received on 8 January 1996 we considered was not an unreasonable delay for the claim forms to be completed and posted.
3. Taking into account all the facts and circumstances including [the claimant's] age and experience we found on the balance of probabilities that [the claimant] had shown continuous good cause from 1 October 1992 to 8 January 1996. (R(S) 2/63 referred to)."
7. I granted the adjudication officer leave to appeal against that decision. At that stage the arguments put forward by the adjudication officer were that the appeal tribunal did not make findings of fact about whether the claimant made any enquiries about benefit entitlement after receiving his compensation from the employer and reached a conclusion inconsistent with R(I) 82/53. The full written submission, dated 4 April 1997, repeated those arguments in more detail and added a third. That seems to be that, in the light of the claimant's evidence about why he finished work in October 1992, the appeal tribunal should have expressly dealt with the question whether his incapacity for his regular occupation resulted from the loss of faculty due to vibration white finger.

8. I will take that third point first. The approach which the adjudication officer took before the hearing was that the only thing standing in the way of the claimant's entitlement to REA for the period from 1 October 1992 to 3 October 1995 was the lack of good cause for the delay in claiming. That of course was the basis of the award of REA from 4 October 1995. The chairman's note of evidence does not record any oral submission by the presenting officer that the appeal tribunal should consider anything other than good cause. In those circumstances, I do not think that the appeal tribunal could be said to have had a duty to investigate the question of the connection between the relevant loss of faculty due to vibration white finger and the claimant's incapacity for his regular occupation. Indeed, if such a new point had been raised, the appeal tribunal would have been bound to offer the claimant an adjournment to give him and his advisers a fair opportunity to meet the point. There was no error of law in the appeal tribunal's not dealing with the point.

9. On the other points, there is nothing in the adjudication officer's argument that the appeal tribunal did not make findings of fact about whether the claimant made enquiries about benefit entitlement after receiving the compensation from the employer. It is quite clear that the appeal tribunal proceeded on the basis that he did not. It took the view that it was reasonable for him not to have done so because he did not know that vibration white finger was a prescribed disease.

10. However, I consider that the appeal tribunal did err in law in not saying expressly why it rejected the specific contention put forward by the adjudication officer based on R(I) 82/53. As will emerge below, in my judgment that contention is wrong in law. But it was put forward clearly in the written submission on form AT2 and repeated orally by the presenting officer. The principle of R(I) 18/61 - that where a specific contention put to an appeal tribunal has been rejected, it is necessary for reasons to be given for the rejection - applies as much to contentions put forward by the adjudication officer as to those put forward by the claimant, and to contentions which are rightly rejected as well as wrongly rejected.

11. For that reason, I must set the appeal tribunal's decision aside. The claimant has asked for an oral hearing of the appeal to the Commissioner. I do not grant that request. I am satisfied that I can properly decide the appeal without an oral hearing. The main concern of Commissioners is always with points of law. In this case an oral hearing would not have helped with the legal points. And since I have decided that there has to be a rehearing before a new appeal tribunal, the claimant will have the opportunity then to state his case face to face.

12. I might well have substituted a decision for that of the appeal tribunal of 30 October 1996, without another hearing, but for the new point raised in the adjudication officer's submission of 4 April 1997. That requires clarification before any decision is made, which will best be done by a new appeal tribunal. Accordingly, the appeal is referred to a differently constituted social security appeal tribunal for determination in accordance with the following directions.

Directions to the new appeal tribunal

13. In producing a fresh written submission for the new appeal tribunal, which will be sent to the claimant and any representative before the rehearing, the adjudication officer must say clearly whether or not it is accepted that throughout the period from 1 October 1992 onwards that the claimant was incapable of, and likely to remain permanently incapable of, his regular occupation as a result of the relevant loss of faculty (Social Security Contributions and Benefits Act 1992, Schedule 7, paragraph 11(1)(b)) or whether it is submitted that the claimant's evidence to the appeal tribunal of 30 October 1996 raises some doubt on the matter. It must be borne in mind that the claimant's incapacity will be a result of the relevant loss of faculty if the loss of faculty stemming from vibration white finger is an effective cause of the incapacity (not necessarily the sole or main cause). The claimant will then be able to see in advance the case which he has to meet. The new appeal tribunal must of course take its own independent view of the evidence available, but must ensure that if any new points are raised at the rehearing the claimant and any representative is given a fair opportunity to deal with those points and if necessary to obtain further evidence.

14. In relation to the question of good cause, I direct the new appeal tribunal that as a matter of law Commissioner's decision R(I) 82/53 is not to be taken as authority for the rule stated in paragraph 8 of part 6 of the adjudication officer's written submission to the appeal tribunal of 30 October 1996.

15. In R(I) 82/53 the claimant, a dock worker, developed a rash after handling a fire-damaged cargo of chemicals. He went to the port medical centre for treatment, which continued for over six months until his union arranged for him to be examined by a consultant dermatologist. Until then he did not know that he was suffering from a prescribed disease. He then made a claim for disablement benefit under the industrial injuries scheme. The Commissioner found that the claimant well knew from the beginning that the rash was due to the nature of his employment, but did not claim because he did not know that it was one of the prescribed diseases. The Commissioner said this in paragraphs 5 and 6 ("reasonable cause", referred to there, is the same as good cause: C.S.I. 10/50):
  
"5. It was not necessary for him to have delayed his claim until his condition had been diagnosed by a specialist; the question whether his disease was one of the prescribed diseases which would entitle him to benefit, and whether it was due to the nature of his employment, would have been determined by methods set up by the National Insurance (Industrial Injuries) Acts, once he had set the machinery in motion by making his claim. It is clear to me that the only reason why the claimant did not claim long before October, 1952 is that he did not know that he had a right to benefit, or did not know the procedure for claiming.
6. It is settled law that ignorance of the right to benefit or of the procedure for claiming it does not amount in itself to reasonable cause for failing to claim in time. A person is expected to take reasonable measures to acquaint himself with his rights and duties under the National Insurance (Industrial Injuries) Acts by inquiring of the officials whose duty it is to advise him at any local National Insurance Office. I cannot agree with the local appeal tribunal in holding that the claimant has shown reasonable cause for his delay in claiming. His delay in my judgment was due simply to ignorance of his rights and duties under the National Insurance (Industrial Injuries) Acts."
16. It is debateable whether those paragraphs in fact supported a definite rule that there cannot be good cause where a claimant knows that an incapacity was caused by work, but not that it was a prescribed disease, rather than simply illustrating an application of the general principle stated in paragraph 6. But, more important, that principle is inconsistent with the Tribunal of Commissioners' decision in R(S) 2/63, in which it was shown that a wide variety of circumstances had been recognised in which a person would not reasonably be expected to make inquiries or think that there was anything to inquire about. In such circumstances there could be good cause for a delay in claiming. The approach of R(S) 2/63 has since been applied in many Commissioners' decisions, such as R(S) 3/79, R(S) 8/81 and R(G) 3/83. The proper test is whether having regard to all the circumstances (including the claimant's state of health and the information which he received or might have received) a reasonable person of his age and experience would have acted, or failed to act, as the claimant did. For that reason, R(I) 82/53 is not to be regarded as establishing any definite rule or as undermining in any way the principle established by R(S) 2/63 and subsequent decisions.

17. I note that the result is that the appeal tribunal of 30 October 1996 in fact applied the right legal principle and reached a result on good cause which it was entitled to reach on the evidence before it. Its decision had to be set aside because it did not explain why it adopted that principle instead of the "rule" in R(I) 82/53. The new appeal tribunal must take its own independent view of the evidence given and submissions made to it and will not be bound in any way by any findings made or conclusions expressed by the appeal tribunal of 30 October 1996.

Signed

J Mesher
Commissioner 
21 July 1997