PLH                                                                               Commissioner's File: CI 2531/01

SOCIAL SECURITY ACTS 1992-1998
	
APPEAL FROM DECISION OF APPEAL TRIBUNAL
ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Claim for:	Reduced Earnings Allowance
Appeal Tribunal:  	Liverpool
Tribunal Case Ref:  	U/06/250/2001/00143
Tribunal date:	26 April 2001
Reasons issued:	28 April 2001

1.	This claimant’s appeal is dismissed, as in my judgment there was no error of law in the decision of the Liverpool appeal tribunal sitting on 26 April 2001 in which they held that the claimant was not entitled to reduced earnings allowance, on the claim for that benefit he made on 30 June 2000 for the period from 15 September 1999.  
2.	The claimant is a man now aged 62, who has been left suffering from deafness as a result of his former work in the noisy conditions of a shipyard.  He originally tried to claim industrial disablement benefit for this in 1981, when he made two separate applications claiming to have been made deaf by an industrial accident, and further or alternatively to have developed occupational deafness in the terms at that time prescribed for an industrial disease; but both of these were turned down and not proceeded with on his behalf.  
3.	The next relevant claim, and the first one that resulted in the payment of any benefit, was one he made on 7 February 1994 for disablement benefit for occupational deafness, disease A10 as at that time prescribed.  This showed he had last been working in one of the occupations listed for this purpose at the beginning of 1993 but had been receiving treatment for hearing trouble since 1980.  (See the claim form itself, among the documents most helpfully supplied for the purposes of this appeal by the claimant, at pages 87 to 90).  
4.	This resulted in his being assessed by a medical authority as suffering from a degree of hearing loss sufficient to constitute the prescribed disease A10 from a “date of onset” determined in accordance with the regulations as 7 February 1994, and a disablement assessment of 34% for 5 years from that date until 6 February 1999:  see pages 91 to 94.  (A medical appeal tribunal has, according to information elsewhere in the papers, subsequently increased that assessment to 40% for the succeeding period from 7 September 1999 for life, but nothing for present purposes turns on that).  
5.	Based on this disablement assessment, the claimant made an application for reduced earnings allowance on 12 July 1994, asking for this from 8 December 1993 in addition to the disablement benefit for disease A10 he had been awarded on his successful claim earlier the same year.  (Reduced earnings allowance, where payable in addition to any disablement benefit in respect of the same industrial accident or prescribed disease, does have to be separately claimed even though it depends on the same assessment of disablement; where awarded, it is normally for a fixed period of time shorter than that of the underlying disablement assessment itself, with a fresh claim required to establish entitlement on any further renewal for a further period:  see the fuller explanation of the relevant provisions in case R(I) 2/99 at paragraphs 8 to 13.)  
6.	The claimant’s application for reduced earnings allowance in 1994 resulted in an award of that benefit being made by an adjudication officer for the period from 13 April 1994 to 29 April 1995, with further fixed period awards following on a similar basis on successive renewals over the next five years.
7.	It was later decided by the department that these awards had all been wrong, and the appeal to the tribunal with which I am concerned was against the decision of an officer on behalf of the Secretary of State issued on 5 July 2000 refusing to make any further award of reduced earnings allowance to the claimant on his most recent renewal claim, covering the period from 15 September 1999 onwards.  This refusal was on the ground that he did not meet the conditions for entitlement, since the relevant “date of onset” of his disease for this purpose was and always had been that determined in accordance with the regulations at the time of his claim in 1994, namely 7 February 1994; and that was and always had been after the cut-off date for reduced earnings allowance under paragraph 11(1) of Schedule 7 Social Security Contributions and Benefits Act 1992, by which a person is not entitled to reduced earnings allowance “to the extent that the relevant loss of faculty results from an accident happening [or prescribed disease with a date of onset] on or after 1 October 1990”.
8.	The tribunal’s conclusion was that the departmental re-think as reflected in this decision was correct, and the conditions for entitlement to reduced earnings allowance were not shown to be met on the most recent claim, which was the one on which they had to pronounce, whatever might have been decided on other claims that had come and gone in the past.  They referred to the confused history of the case as the result of the mistakes originally made in the department in dealing with the claimant’s REA claims from 1994 onwards.  These had been compounded by its failure to turn up or be represented at all at the hearing of an earlier tribunal appeal on 5 March 1999, when the relevant legislation was not drawn to the tribunal’s attention, and as a result a previous attempt at withdrawing the claimant’s reduced earnings allowance for an earlier claim period had failed.  
9.	The result of these earlier departmental mistakes and failures is, as the tribunal recorded, that the claimant has mistakenly been paid several thousand pounds of benefit over a period of some years, when he was not in fact entitled to it under the regulations at all.  However there is no question of his being required to pay back this large sum of public money which has been wrongly paid out to him, since he has at all times been entirely honest and straightforward in his dealings with the department and supplied all the information required of him; the mistakes have at all times been within the department itself in not applying its own regulations correctly, and in mishandling the case at and after the previous tribunal appeal.  In consequence, the claimant in fact went on getting reduced earnings allowance, mistakenly, for the period up to 9 February 1999.  
10.	All of that is now history; and the only question before the tribunal, and before me, was whether the claimant was rightly refused entitlement on his fresh claim for the period from 15 September 1999 onwards, on the ground that he did not then meet the conditions for entitlement, despite none of the underlying facts of his case having actually changed and all of his claims having been decided differently before.
11.	The effect of the legislation the tribunal (and everyone else dealing with it for that matter) were required to apply to the claimant’s case is not in my judgment in doubt, and can be summarised for present purposes as follows.  As noted above, reduced earnings allowance is a benefit under the industrial injuries scheme, which must be claimed separately, but is related to disablement benefit in that a person may only become entitled to the allowance if entitled to a disablement pension (for which the minimum disablement percentage is now 20%) or if he would be so entitled were such a pension payable on a disablement assessment of not less than 1%:  see paragraph 11(1) of Schedule 7 cited above.  
12.	It is however made a further condition of entitlement by that same paragraph that the relevant loss of faculty must have arisen from an accident happening or prescribed disease with a date of onset before 1 October 1990, reflecting the decision to phase out this benefit by confining it to industrial injuries suffered, and diseases treated as contracted, before that date.  For this purpose, the limit imposed by the regulations about prescribed industrial diseases is that there can be no entitlement to reduced earnings allowance where the “date of onset” of the disease as determined in accordance with the regulations was any date on or after 1 October 1990:  see in particular regulation 11 and Schedule 2, Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985 SI No. 967, by which “the date of onset” of the relevant disease as ascertained under those regulations is substituted for references to the “date of the accident” in paragraph 11 of Schedule 7 to the 1992 Act cited above.  
13.	Everything therefore depended on what fell to be treated for the purposes of those regulations as “the date of onset” of the claimant’s prescribed disease A10 occupational deafness, for the purposes of the claim under consideration before the tribunal. This (there is no dispute) was the one he made for the period from 15 September 1999 onwards, for which his claim form dated 22 June 2000 was received and accepted by the Secretary of State on 30 June 2000, as an effective claim for the period starting just over 9 months previously:  see pages 3 to 16.
14.	On this, there can be no doubt in my judgment that the tribunal correctly directed themselves to, and correctly applied, the special rule for determining the “date of onset” for the purposes of occupational deafness, in regulation 6 of the prescribed diseases regulations, which lays down so far as material that:  
“6(1)	For the purposes of the first claim in respect of a prescribed disease suffered by a person, the date of onset shall be determined in accordance with the following provisions of this regulation, and … that date shall be treated as the date of onset for the purposes of any subsequent claim in respect of the same disease suffered by the same person …
(2)	Where the claim for the purposes of which the date of onset is to be determined is - …
		(c)	A claim for disablement benefit in respect of occupational deafness, the date of onset shall be the day on which the claimant first suffered from the relevant loss of faculty on or after 3 February 1975; or, if later –
			(i)	[Not material] 
			(ii)	in any other case, the date on which such claim is made as results in the payment of benefit;”
15.	In other words, if a person makes a claim or successive claims for disablement benefit (and, by the same token, reduced earnings allowance, which depend on establishing the same loss of faculty) in respect of occupational deafness, the “date of onset” can never be earlier than that of the first such claim which results in the actual payment of benefit; and the date so determined is also, by regulation 6(1), to be treated as the date of onset for the purposes of each subsequent claim.
16.	In my judgment, it is quite beyond argument that the tribunal were correct in reading this as requiring the “date of onset” for the purposes of the claim before them to be taken as fixed at the date of the first successful claim made by this claimant for disablement benefit in respect of prescribed disease A10, which there was no dispute on the actual facts was 7 February 1994, the date of onset correctly determined on the medical assessment made on that claim at the time.
17.	The claimant’s notice of appeal against that decision, on which leave to appeal was granted by a tribunal chairman, suggests first that there has been an error in that his industrial deafness had originally been caused by an accident at work in the mid-70’s, (as distinct, as I understand it, from the industrial disease from which he was later found to be suffering).  That cannot be a good ground of appeal, since as he very fairly makes clear both his earlier claim for disablement benefit on that basis and the claim he also made in 1981 for occupational deafness as then prescribed were turned down, and never resulted in any entitlement to benefit.  The claims with which the tribunal were concerned were beyond doubt confined to claims based on prescribed disease A10 occupational deafness, not claims for injury from accident, and there can equally be no doubt that the tribunal were bound to apply the special rules for that disease in determining the date of onset for the purposes of the claim before them.  
18.	The further contentions put forward by the claimant in his appeal before the tribunal, and dealt with in the Secretary of State’s written submissions on the present appeal against their decision, all arose from the confused previous history of the case and the previous departmental decisions, and that of an earlier tribunal on 5 March 1999, given in apparent disregard of the requirement of regulation 6 that the date of onset for occupational deafness cases has to be the date of the earliest successful claim.  
19.	In particular, it was suggested that the earlier tribunal’s decision purporting to hold, without apparent reference to regulation 6, that the claimant had in fact been suffering from prescribed disease A10 since before 1 October 1990 should in some way be treated as binding on the tribunal sitting on 26 April 2001 to deal with the appeal against the rejection of the most recent claim: either because the Secretary of State having mistakenly chosen not to appeal against that decision at the time, it had become conclusive on all questions of “dates of onset”, or because the claim for the period from 15 September 1999 ought not to be treated as a fresh claim for reduced earnings allowance at all, but merely as an extension of the original one made on 12 July 1994 which had been the subject of the original unappealed decision purporting to award entitlement to REA despite the 1 October 1990 cut-off.
20.	In my judgment, neither of those points provides an answer to the tribunal’s decision, which was in my view entirely correct in rejecting them.  In the first place, it seems to me that the written submission of Mrs M Gratrex on behalf of the Secretary of State dated 3 December 2001 at pages 117-118 is right to point out that the decision of the earlier tribunal of 5 March 1999, purporting to hold that the onset of the claimant’s disease pre-dated 1 October 1990 (a copy is at pages 17-19), was in fact one made without jurisdiction; and could not therefore have been regarded as having any binding force by the later tribunal on the “date of onset” even though no effective steps had been taken by the Secretary of State to appeal or overturn it at the time.  
21.	The tribunal on 5 March 1999, as the record shows, was sitting as a social security appeal tribunal, and thus did not have jurisdiction to determine medical questions such as the date from which the claimant had first begun to suffer from a loss of faculty from that particular prescribed disease: yet their determination that 
“…the Appellant had satisfied them, on the balance of probabilities, that the onset of the prescribed disease in his case pre-dated 1 October 1990 … There would … appear to be abundant evidence that the Appellant’s hearing problems started well before 1990 and the Tribunal accepted that such was the case” 
(page 19) inevitably, as it seems to me, purported to do so.  The diagnosis of disease A10 in the claimant’s case, and the commencement of a “loss of faculty” from that disease in the terms required by the regulations, had both already been correctly determined on the basis of the medical assessment on his first successful disablement benefit claim in April 1994.  This had identified the “date of onset” and the start date of any percentage assessment of disablement as (and not before) 7 February 1994, as stipulated by the regulations; and no appeal against any medical decision on those issues was before the tribunal which sat in March 1999.  
22.	Secondly, the 1999 decision was plainly wrong as a matter of law as whatever the actual date on which the claimant might be said to have been first suffering from a loss of hearing sufficient to meet the prescribed disease A10 criteria, regulation 6 of the prescribed disease regulations required the “date of onset” for the purpose of any claim to benefit for that disease to be treated as no earlier than the date of the first such claim which succeeded in obtaining an award.  That provision was completely disregarded by the 1999 tribunal (not helped, as the later tribunal remarked, by the decision of the Secretary of State not to be represented at the hearing in 1999, a false economy in this case if ever there was one).
23.	There can in my judgment be no argument that the 1999 tribunal having based their decision on an (unspecified) date of onset that “pre-dated 1 October 1990”, this unappealed determination is itself “locked” under regulation 6(1) so as to preclude the date of onset being determined correctly on any subsequent claim.  The date identified in regulation 6(1) as “that date” (i.e. the one that has also to be treated as the date of onset for the purposes of any later claim in respect of the same disease) is the date determined in accordance with the requirements of regulation 6 itself, not any other date wrongly determined by a tribunal on the first or any subsequent claim in disregard of those requirements.  
24.	I therefore agree with the Secretary of State’s submission that there can be no binding force in the tribunal’s erroneous decision in 1999 as regards any subsequent claim or period.  For this purpose, it is in my view clear that the claim before the tribunal on 26 April 2001, which was the one made on 30 June 2000 for the period from 15 September 1999 not covered by any award of entitlement to benefit, did constitute a fresh claim, necessarily independent of the earlier ones for the spent periods, for the reasons explained in R(I) 2/99 referred to above.  There can be no question of an earlier error of law of this kind being used so as to perpetuate itself and preclude a contrary decision on a subsequent claim: see what was said by the Tribunal of Commissioners in case CI 440/50, paragraph 17.
25.	Accordingly, I now dismiss this appeal.  For reasons which will be apparent from what is said above, I have been satisfied I can properly do so after taking careful account of all the written submissions made to me, and without the necessity of the oral hearing earlier directed.  This the claimant has very courteously and helpfully made clear he did not in any case want, as his health would not have allowed him to attend.  
26.	For the sake of completeness, I also record that the separate and in my view unrelated issues on “dates of onset” raised in another case, CI 6027/99 Whalley v. Secretary of State which is currently under appeal to the Court of Appeal, did not appear to me to arise in the present case, so there was no reason to defer giving my decision.

(Signed)
P L Howell
Commissioner
28 November 2002