File number:  CI 3157 2001

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1	The appeal is allowed. But it is allowed for technical reasons, and I give my own decision to the same effect as the decision under appeal. 

2	The appellant is appealing from a decision of the Newcastle upon Tyne appeal tribunal on 25 June 2001 that the appellant is not entitled to industrial injuries disablement benefit because he is not suffering from a prescribed disease.

3	For the reasons below, the decision of the tribunal is wrong in law. Those reasons do not related to the substance of the issue before it, and I confirm the substance of the tribunal decision. My decision is that:

The appellant is not entitled to industrial injuries disablement benefit in respect of his claim on 26 February 2001 because he was not on that date suffering from a prescribed disease or any sequela of such a disease.

The decision-making process

4	The appellant was examined by a medical examiner in March 2001, and the examiner reported no evidence of a prescribed disease. The Secretary of State thereupon made a decision refusing benefit. The appellant appealed. An application was made by an officer of the DSS for a reconsideration of that decision. The application was refused because no further medical evidence had been produced. But the submission to the tribunal states:

	“On 1 May another Decision Maker reconsidered the claim as part of the appeal process. The Decision Maker was of the opinion that the decision should not change as no new facts or evidence had been raised and the law had been correctly applied.”
    
5	All aspects of this case took place after the Human Rights Act 1998 and European Convention on Human Rights apply. Even if it was in doubt before that, there can now be no doubt that if the reconsideration by the Secretary of State was part of the appeal process, then there was a failure to provide a fully independent and impartial appeal process. In my decisions CI  2087 2000 and CI 2088 2000, I found that reconsideration was not part of the appeal process, and that it was wrong for the Secretary of State to suggest otherwise. There has been no appeal against those decisions, and this point is not affected by subsequent decisions of the Tribunal of Commissioners. Further, the secretary of state's representative agrees that the submission should not have contained that statement, and that there is no justification in law for it. Nonetheless, the terms of the submission calls the appeal process as a whole into question unless properly dealt with. It was not dealt with by or at the tribunal hearing, and I set aside the tribunal decision for that reason. But, for the reasons set out below, it is expedient that I now consider the issue of unfairness and the underlying case.

My decision 

6	The secretary of state's representative was wrong to submit to the tribunal that the reconsideration was part of the appeal process. It was not. I am satisfied that the tribunal in this case took its own decision after an oral hearing and in the light of all the evidence. It did not affirm the decision that the Secretary of State purported to make “as part of the appeal process”, but reached its own decision on a different basis.  As the appeal was made and heard in this way, there is no unfairness or appearance of unfairness in the actual conduct and determination of the hearing, and I am satisfied that any misrepresentation by the secretary of state's representative has not had any effect on the decision. 

7	The appellant’s own grounds of appeal relate to the medical evidence before the tribunal. The grounds were put forward by the appellant’s son, himself a fully qualified medical practitioner. However, they miss one of the key points on which the tribunal rested its decision, perhaps because the tribunal did not directly mention the significance of the point in its decision. The statutory definition of prescribed disease A11 requires that the episodic blanching of a person with all fingers and thumbs present must be on at least three of the fingers of a hand. In this case the consultant’s expert evidence in 1992 clearly shows blanching restricted to two fingers of each hand. While therefore the consultant had evidence of vibration white finger, that evidence did not meet the technical prescription of the prescribed disease. Again, the presence of neurological effects in fingers without blanching in those fingers is not within the prescribed terms of this disease. The medical board in 1993 found no evidence of prescribed disease A11, and that decision was not challenged at that time. The other, much later, evidence was contradictory. 

8	The tribunal made full findings, accompanied by a full record of proceedings of the hearing and notes of its own medical examination. All the evidence said to be relevant was before the tribunal. It expressly noted that the appellant’s employment in the mines stopped in 1983. There was no relevant employment since then. The appellant reached retirement age in 1993, before the date of the medical board examination. The tribunal expressly drew the attention of the appellant to the inconsistencies in his evidence at various stages about the extent of the blanching. It dealt directly with the contradictions in the evidence in the light of the employment history. It had evidence, even aside from its own examination, for the conclusion it reached, and its decision deals with the conflict of evidence adequately. I therefore see no error in the way the tribunal handled the substance of the appeal. But I think it right to go further and adopt the decision of the tribunal as the correct decision on the balance of probabilities, in the light of all the evidence including in particular the employment history of the appellant, the evidence of the consultant and of the 1993 examination, and the evidence it recorded at its own hearing and examination.  

									David Williams
									Commissioner

									06 February 2002
[Signed on the original on the date shown]