R(I) 2/98

Mr. D. G. Rice	CI/410/1991
24.6.98
Prescribed disease A10 (occupational deafness) - amendment from 16 October 1989 to regulations regarding assessment of disablement - whether amendment applying to assessment beginning before 16 October 1989.
On 14 September 1984 the claimant claimed disablement benefit in respect of prescribed disease A10 (occupational deafness).  Disablement was provisionally assessed at 32% from 14 September 1984 to 13 September 1989.  On 18 December 1989 a Reassessment Medical Board made a final assessment of 50% for life, calculating the degree of disablement by rounding up the hearing loss to the nearest whole figure.  However, on 16 October 1989, paragraph (3A) had been inserted into regulation 34 of the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985.  That paragraph provided for a rounding down of any fraction of an average hearing loss where the average hearing loss was over 50dB.  On a reference to them, a medical appeal tribunal applied paragraph (3A) and provisionally assessed disablement at 42% from 14 September 1989 to 13 September 1994.  The claimant contended that the law to be applied was that as it stood on 14 September 1989, that being the date from which the new assessment was to begin.
Held that:
1.	the presumption against retrospectivity did not apply to legislation relating to matters of procedure or evidence.  Provisions concerned with remedies were to be classified as matters of procedure for the purpose of the rules relating to retrospective effect.  Assessments in respect of occupational deafness were remedies and so any amendment of the relevant legislation applied to them retrospectively.  Moreover the fact that regulation 34(1) provided for an exception in relation to claims made before 30 September 1979 also indicated that the amended legislation was to apply retrospectively;
2.	the medical appeal tribunal had not erred in law when they calculated the claimant’s entitlement at 42% rather than 50%.  The claimant’s appeal was dismissed.

DECISION OF THE SOCIAL SECURITY COMMISSIONER
1.	For the reasons set out below, the decision of the medical appeal tribunal (“MAT”) given on 12 December 1990 is not erroneous in point of law, and accordingly this appeal fails.
2.	On 14 September 1984 the claimant, then employed as a moulder, applied for disablement benefit in respect of prescribed disease A10 (occupational deafness).  The history of that claim is set out in the submissions of the Secretary of State dated 30 January 1992, 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 12 December 1990 was erroneous in point of law.
3.	The claimant asked for an oral hearing, a request which was acceded to.  At that hearing the claimant, who was present, was represented by Mr. A. Wrightman, whilst the adjudication officer appeared by Mr. K. Latter of Counsel, instructed by the Solicitor’s Office of the Departments of Health and Social Security.  I am particularly indebted to Mr. Latter for his helpful submissions.
4.	On 15 October 1987 the MAT provisionally assessed disablement on account of occupational deafness at 32% from 14 September 1984 to 13 September 1989.  On 18 December 1989 a reassessment medical board, who had before them an otologist’s report dated 14 November 1989, made a final assessment from 14 September 1989 for life at 50%.  As is clear from the otologist’s report, the average overall hearing loss experienced by the claimant was 68.3 dB in the right ear and 66.6 dB in the left ear.  The reassessment medical board had to apply the formula set out in regulation 34(2) of the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985, SI 1985 No. 967, and Schedule 3 thereto. The calculation depended inter alia upon whether the degree of disablement of the better ear was to be regarded as 66 dB or 67 dB.  Clearly, the reassessment medical board took the figure of 66.6 dB to the nearest whole number, namely 67, and did the calculation on that basis, which revealed a disablement assessment of 50%.
5.	However, shortly before the date of their decision, namely on 16 October 1989, the regulations had been amended.  The crucial amendment was the insertion of a new paragraph in regulation 34, namely paragraph (3A).  This reads as follows:
“For the purposes of determining the percentage degree of disablement in Parts I and II of Schedule 3 to these Regulations, any fraction of an average hearing loss shall, where the average hearing loss is over 50 dB, be rounded down to the next whole figure”.
Accordingly, the reassessment medical board should have rounded down 66.6 dB to 66 dB, and the practical effect of this was to throw up a degree of assessment at 42%.
6.	The decision of the reassessment medical board was referred by the adjudication officer to the MAT at the instigation of the Secretary of State. The MAT provisionally assessed disablement at 42% from 14 September 1989 to 13 September 1994, clearly applying the amended regulations.
7.	The claimant’s contention before me was that in so doing the MAT erred in point of law.  As the date from which the new assessment was to commence was 14 September 1989, the law should be applied as it then stood, and accordingly the assessment should be 50%, not 42%. In short, the amendment to the regulations should not be retrospective in effect.
8.	Mr. Latter contended that, unless the relevant statutory provision provided to the contrary, where remedies or procedural  matters were in question, amendments to the law operated retrospectively.  He drew my attention to two passages from volume 44 of Halsbury’s Laws.  The first, at paragraph 922 reads as follows:
“The general rule is that all statutes, other than those which are merely declaratory, or which relate only to matters of procedure or of evidence, are prima facie prospective, and retrospective effect is not to be given to them unless, by express words or necessary implication, it appears that this was the intention of the legislature. Similarly, the courts will construe a provision as conferring power to act retrospectively only when clear words are used.”
The second passage is contained in paragraph 925, which reads as follows:
“Statutes relating to procedure or evidence.  The presumption against retrospection does not apply to legislation concerned merely with matters of procedure or of evidence; on the contrary, provisions of that nature are to be construed as retrospective unless there is a clear indication that such was not the intention of Parliament.
...
Provisions introducing new remedies have been classed with provisions as to procedure for the purposes of the rules relating to retrospective effect, so that they are prima facie applicable both to proceedings subsequently begun in respect of existing causes of action and to existing proceeding, whether pending before a court of first instance or an appellate tribunal, and provisions suspending remedies are probably to be regarded as procedural in character.” [my emphasis]
9.	Mr. Latter contended that assessments in respect of occupational deafness under regulation 34 and Schedule 3 constituted “remedies”.  They provided remedies against the effects of the disablement.  Hence they were to be equated with matters of procedure, and any amendments of the relevant legislation applied to them retrospectively.
10.	Mr. Latter prayed in aid also the decision of the Court Appeal in Cardshops Ltd v. John Lewis Properties [1982] 3 All ER p.746.  Although the facts in that case, which were concerned with landlord and tenant, are wholly dissimilar to those in the case before me, the principle there stated merits consideration.  The landlord sought possession of certain business premises, and when the application came to be heard by the County Court, the tenant conceded that it could not oppose the landlord’s claim for possession.  However a question arose as to what compensation the tenant should receive.  At the date when the landlord’s notice was served, namely in January 1980, the relevant legislation provided that the claimant should only receive the rateable value of the property.  However, the legislation was subsequently altered, with effect from 25 March 1981, so as to confer compensation at 2¼ times the rateable value.  The tenant was not obliged to quit the property until 29 June 1981, and it was held by the Court of Appeal by a majority that the relevant date for calculating the compensation was the date when the tenant was actually required to quit, and not the date when the landlord served the original notice.  Moreover, it mattered not that the law had been changed between the date of service of notice and the date of quitting the property.
11.	Notwithstanding that Mr. Latter put this case forward as authority for the retrospective effect of legislation in certain circumstances, I do not consider that this was in fact a retrospective case.  This is clear from what Waller LJ said at page 750.  Paragraph thereof reads as follows:
“It was submitted before this court that to adopt the construction that it is the date of quitting which is crucial would be to adopt a construction with retrospective effect ... In the present case ... when the matter came on for trial before the County Court judge there were three possibilities:  the landlords might not be able to establish that they intended to occupy the premises for their own business purposes; the landlords might have changed their mind and have decided that the cost was too great; or the landlords might establish their intention and be required to pay compensation on the tenant quitting. I see nothing retrospective in saying that the compensation would be on the basis of the law current at the date of quitting.” 
However, although Cardshops Ltd v. John Lewis Properties Ltd is not really apposite, nevertheless I accept the general proposition put forward by Mr. Latter based on the passages cited from Halsbury, passages which are all supported by the various authorities referred to in the relevant footnotes.
12.	Mr. Latter supported his contention that the amendment to regulation 34 was to apply retrospectively by reliance on the opening wording of regulation 34(1).  That regulation commences as follows:
 “34.-(1) Subject to the provisions of Schedule 8 and regulations made thereunder and the following provisions of this regulation, the first assessment of the extent of disablement in respect of occupational deafness made in pursuance of a claim made before 3 September 1979 by a person to whom disablement benefit in respect of occupational deafness is payable for the period before 3 September 1979 shall be the percentage calculated by-
...”
Mr. Latter argued that the express reference to “a claim made before 3 September 1979” showed that the new legislation was as a general rule to apply retrospectively.  There was to be no exception except that stipulated in regulation 34(1).  If the new legislation was not to apply retrospectively, there would have been no need for the exception set out in regulation 34(1).  Moreover, the exception was limited only to the “first assessment” and Mr. Latter pointed out that in the present case the assessment, apart from not arising on a claim made before 3 September 1979, was not even a first assessment.
13.	I see the force of Mr. Latter’s submissions, and accept them.  I am satisfied that the amended regulation 34 applies as at the date from which the claimant’s reassessment period commenced, namely 14 September 1989.  It should also be noted that the decision made by the MAT was not only retrospective, but to a far greater extent prospective.  For it covered the period up to the 13 September 1994.  It would be surprising if the position from 16 October 1989, when the new legislation came in to effect, to 13 September 1994 was governed by the old legislation, rather than the new.
14.	Mr. Wrightman complained that the claimant had been prejudiced by the lethargic approach on the part of the Department in arranging for the claimant’s assessment to be determined.  Had it been determined prior to 16 October 1989, the calculation would have proceeded under the old law, and the claimant would have been entitled to 50%.  It was not the claimant’s fault that the Department delayed.  I have some sympathy for this viewpoint. However, the interval of time between 14 September 1989 and 16 October 1989 was small, and there was no duty on the Department to race through, as it were, the examination in order to enable the claimant to take advantage of the current law.  I do not think that it could be said that the hearing, which took place after 15 October 1989, was necessarily unduly delayed.  But, be that it may, the amendment did operate retrospectively, and any retrospective operation tends to fall harshly on those who are thereby prejudiced.  But this is in the nature of things, and unless there are safeguards built into the relevant amendment, the consequences fall where they do.  The claimant in this case was clearly encouraged by the decision of the reassessment medical board of 18 December 1989, but their decision was itself erroneous.  By that time the new legislation had already come into effect, and the claimant was already caught.  It was not a question of his having been prejudiced in the intervening period between the decision of the reassessment medical board and the decision of the MAT.  The damage had already been done by the time he was examined by the reassessment medical board. Any  hearing, whether before the reassessment medical board or the MAT, held after the 15 October 1989 was, for his purposes, too late.
15.	It follows from what has been said above that the MAT did not err in point of law on 12 December 1990 when they calculated the	claimant’s entitlement at 42% rather than 50%.  Accordingly, I have no option but to dismiss this appeal.

Date: 24 June 1998	(signed) Mr. D. G. Rice
	Commissioner