IN THE UPPER TRIBUNAL			Case No  CI/2239/2010
ADMINISTRATIVE APPEALS CHAMBER

Before UPPER TRIBUNAL JUDGE WARD 

Attendances:	

For the Appellant:	Mr P Carragher, General Secretary, BACM -Team

For the Respondent	Mr S Cooper, Solicitor

Decision:  The appeal is dismissed.  The decision of the First-tier Tribunal sitting at Barnsley East on 17 May 2010 under reference 001/10/00278 did not involve the making of an error of law.

REASONS FOR DECISION

1. This appeal explores the correct approach to assessment for the purposes of disablement benefit when a new disease has been added to the list of prescribed industrial diseases.  It concerns the addition of osteoarthritis of the knee in certain coal miners as Prescribed Disease (“PD”) A14, by the Social Security (Industrial Injuries)(Prescribed Diseases)(Amendment) Regulations 2009/1396, with effect from 13 July 2009.  The questions are far from straightforward.

2. The claimant was born in 1928. He worked as a coal miner in jobs which met the occupational conditions of PD A14.  In around 1985, at the early age of 47 or so, he began to develop problems with his knees, then or subsequently diagnosed as osteoarthritis.  In 2000 he had a total replacement of each knee.  My understanding – and it is not understood to be in dispute - is that knee surgery may come to be deferred until a person has become older, as replacement knees may wear out and further replacements may be less effective.  Between 1985 and 2000, therefore, the claimant had to put up with his knees giving him increasing amounts of trouble.  It appears that the operations in 2000 went well, but that from 2008 or so, the claimant was experiencing increasing amounts of pain and restrictions upon him.  Further detail is not necessary for this decision.

3. On 18 June 2009 he claimed disablement benefit.  No point has been taken that this was before SI 2009/1396 became effective.  On 29 September 2009 he was examined by a medical adviser, who recommended an assessment of disablement of 10% for life.  The doctor completed the box on the relevant form for “What date did the assessment begin?” with the answer “13/07/09”, the covering explanation being “date disease added to schedule”.  The recommendation was adopted by a decision dated 17 October 2009, which indicated that “For your disease, your disablement cannot start before 13 July 2009 as that is the date the disease was added to the list of diseases covered by the Industrial Injuries rules.”  The claimant appealed unsuccessfully to the First-tier Tribunal on 17 May 2010.  Following an oral hearing of the claimant’s application for permission to appeal, I gave permission only on the limited range of issues reflected in the present decision.

4. The basic right to disablement benefit in respect of a prescribed disease is established by section 108 of the Social Security Contributions and Benefits Act 1992 (“the 1992 Act”).  It sets out details of the “prescribing” process and provides, inter alia, that:

	“(3) Regulations prescribing any disease or injury for those purposes 	may provide that a person who developed the disease or injury on or at 	any time after a date specified in the regulations (being a date before 	the regulations came into force but not before 5th July 1948) shall be 	treated, subject to any prescribed modifications of this section or 	section 109 or 110 below, as if the regulations had been in force when 	he developed the disease or injury.

(4) Provision may be made by regulations for determining—
(a) the time at which a person is to be treated as having developed any prescribed disease or injury…

(5) Notwithstanding any other provision of this Act, the power conferred by subsection (4)(a) above includes power to provide that the time at which a person shall be treated as having developed a prescribed disease or injury shall be the date on which he first makes a claim which results in the payment of benefit by virtue of this section or section 110 below in respect of that disease or injury.

I observe that the power in section 108(4)(a), as interpreted by sub-section (5), the exercise of which might have put the issues in this case beyond argument, does not appear to have been used, nor has the power in section 108(3) been used in any relevant context for present purposes.

5. Section 109(1) applies to prescribed diseases by analogy the rules applicable to industrial injuries, subject to provision made to the contrary by regulation. Although there are such regulations – the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985/967 (“the 1985 Regulations”) – it is only necessary to mention a few provisions.

6. The date of onset of a prescribed disease is governed by regulations 5 and 6 (regulation 7 deals with a connected topic not material here), which so far as relevant provide:

“5(1) If on a claim for benefit under Chapter V of Part II of the Act in respect of a prescribed disease a person is found to be or to have been suffering from the disease…, the disease shall, for the purposes of such claim, be treated as having developed on a date (hereafter in these regulations referred to as “the date of onset”) determined in accordance with the provisions of the next 2 following regulations…

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…
 
(2) Where the claim for the purposes of which the date of onset is to be determined is—
… 
(b) a claim for disablement benefit (except 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 5th July 1948…”

7. Schedule 2 contains a provision that:

“In Chapters IV and VI of Part II of the Act references to accidents shall be construed as references to prescribed diseases and references to the relevant accident shall be construed as references to the relevant disease and references to the date of the relevant accident shall be construed as references to the date of onset of the relevant disease.”

8. Relevant provisions of section 103 of the 1992 Act (which fall to be read in accordance with the provision in the previous paragraph), read:

“(1) Subject to the provisions of this section, an employed earner shall be entitled to disablement pension if he suffers as the result of the relevant accident from loss of physical or mental faculty such that the assessed extent of the resulting disablement amounts to not less than 14 per cent. or, on a claim made before 1st October 1986, 20 per cent.
…
(5) In this Part of this Act “assessed”, in relation to the extent of any disablement, means assessed in accordance with Schedule 6 to this Act; and for the purposes of that Schedule there shall be taken to be no relevant loss of faculty when the extent of the resulting disablement, if so assessed, would not amount to 1 per cent.

(6) A person shall not be entitled to a disablement pension until after the expiry of the period of 90 days (disregarding Sundays) beginning with the day of the relevant accident.”

9. This takes us to Schedule 6, which lies at the heart of this appeal. 

“SCHEDULE 6

ASSESSMENT OF EXTENT OF DISABLEMENT

General provisions as to method of assessment

“1. For the purposes of section 103 above and Part II of Schedule 7 to this Act, the extent of disablement shall be assessed, by reference to the disabilities incurred by the claimant as a result of the relevant loss of faculty, in accordance with the following general principles—

(a) except as provided in paragraphs (b) to (d) below, the disabilities to be taken into account shall be all disabilities so incurred (whether or not involving loss of earning power or additional expense) to which the claimant may be expected, having regard to his physical and mental condition at the date of the assessment, to be subject during the period taken into account by the assessment as compared with a person of the same age and sex whose physical and mental condition is normal…

(c) the assessment shall be made without reference to the particular circumstances of the claimant other than age, sex, and physical and mental condition…

Severe disablement allowance

4. (1) In the case of an assessment of any person's disablement for the purposes of section 68 above, the period to be taken into account for any such assessment shall be the period during which that person has suffered and may be expected to continue to suffer from the relevant loss of faculty beginning not later than—
(a) the first claim day, if his entitlement to benefit falls to be determined in accordance with section 68(3)(b) above as modified by regulations under section 68(11)(b);
(b) where his disablement has previously been assessed for the purposes of section 68 above at a percentage which is not less than 80 per cent.—
(i) if the period taken into account for that assessment was or included the period of 196 days ending immediately before the first claim day, the first claim day, or
(ii) if the period so taken into account included any day falling within that period of 196 days, the day immediately following that day or, if there is more than one such day, the last such day;
(c) in any other case, 196 days before the first claim day;
and, in any case, ending not later than the day on which that person attains the age of 65 . 

(2) In this paragraph “the first claim day” means the first day in respect of which the person concerned has made the claim in question for a severe disablement allowance.

…

Disablement benefit

6. (1) Subject to sub-paragraphs (2) and (3) below, the period to be taken into account by an assessment for the purposes of section 103 above and Part II of Schedule 7 to this Act of the extent of a claimant's disablement shall be the period (beginning not earlier than the end of the period of 90 days referred to in section 103(6) above and in paragraph 9(3) of that Schedule and limited by reference either to the claimant's life or to a definite date) during which the claimant has suffered and may be expected to continue to suffer from the relevant loss of faculty…

7. An assessment for the purposes of section 103 above and Part II of Schedule 7 to this Act shall—
(a) state the degree of disablement in the form of a percentage;
(b) specify the period taken into account by the assessment; and
(c) where that period is limited by reference to a definite date, specify whether the assessment is provisional or final;
but the percentage and the period shall not be specified more particularly than is necessary for the purpose of determining in accordance with section 103 above and Parts II and IV of Schedule 7 to this Act the claimant's rights as to disablement pension or gratuity and reduced earnings allowance (whether or not a claim has been made).”

I should explain that:

(a) paragraph 4 is included here in the form in which it was prior to its repeal by the Welfare Reform and Pensions Act 1999 and in which it was preserved for limited purposes by the Welfare Reform and Pensions Act 1999 (Commencement No.9 and Transitional and Savings Provisions) Order 2000/2958) 

(b) the references to Part II and to disablement gratuity are of no direct relevance to the present claim and

(c) the claimant in the present case could not himself claim reduced earnings allowance, inter alia because PD A14 was prescribed after the cut-off date of 10 October 1994 established for that purpose by regulation 14A of the 1985 Regulations.

10. It is common ground that the claimant cannot be entitled to disablement benefit before the date on which PD A14 was prescribed.  In R(I)4/96, Mr Commissioner Goodman rejected the contrary argument, holding that it would amount to the retrospective operation of the relevant legislation, for which it provided no warrant by its terms or by what it implied. He put the matter thus:

	“6. There is, of course, a general rule of statutory interpretation by 	which there is a presumption against retrospective operation of any 	statutory provision, whether in principal or delegated legislation.  This 	presumption is expressed in Halsbury’s Laws of England, 4th Edition, 	volume 44 at paragraph 922 as follows:
	“The general rule is that all statutes [and also instruments made 	under such 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.”
	7. As to the meaning of “retrospective”, paragraph 921 of the same 	volume states:
	“It has been said that ‘retrospective’ is somewhat ambiguous 	and that a good deal of confusion has been caused by the fact 	that it is used in more senses than one.  In general however the 	Courts regard as retrospective any statute which operates on 	cases or facts coming into existence before its commencement 	in the sense that it affects, even if for the future only, the 	character or consequences of transactions previous entered into 	or of other past conduct.  Thus a statute is not retrospective 	merely because it affects existing rights; nor is it retrospective 	merely because a part of the requisites for its action is drawn 	from a time antecedent to its passing.”
	8. I hold that those paragraphs from Halsbury are an accurate 	summary of the case law therein cited as authority for them.  I also hold 	that what Mr. Parker contends for in the present appeal is a 	retrospective operation of SI 1993 No. 1945 which introduced 	prescribed disease D12 as from 13 September 1993.”

11. It is also common ground that the date of onset “shall be the day on which the claimant first suffered from the relevant loss of faculty on or after 5th July 1948”: see 1985 Regulations, reg 6(2)(b).  In the present case it is not in dispute that this was 1 January 1985.   In R(I)4/96 Mr Commissioner Goodman concluded that the date of onset was what it was under the 1985 Regulations and had no difficulty with the notion that the date of onset should be 1 September 1970 even though D12, the prescribed disease in that case, had only been introduced with effect from 13 September 1993. 

12. What Mr Commissioner Goodman did not have to address was whether, when assessing a claim, it is necessary to go back to (or, more accurately, to as far back as 90 days after) the date of onset in order to determine the assessment of the person’s disablement by reference to which their entitlement to benefit from the date on which the disease is prescribed – or their later claim – will be calculated.

13. The reasons why it matters, at least potentially, are (a) because a person’s condition may vary over time, including as the result of surgical intervention; and (b) because the condition to be attributed to the comparator envisaged by schedule 6, para 1(a) may also vary over time and not necessarily at the same rate as that of the claimant.

14. To put it in concrete terms (and this is an illustration only, not a finding) when the claimant developed osteoarthritis at the young age of 47, it is unlikely that many others of the same age and sex would have done so.  It is entirely possible that that gulf increased between 1985 and 2000, depending on the course of the claimant’s condition. It is likewise possible that the effect of the operations in 2000 might have been to reduce the gap between the claimant and any comparator; and any gap might in any event have been narrowing because of the increased incidence of osteoarthritis of the knee in the older population, whether or not they have been miners.

15. Does schedule 6 have the effect of requiring a claimant’s history to be taken into account in this way?  The cross-heading to para 1 of schedule 6 indicates that it sets out “general provisions”. As such, its provisions had to be capable of being applied both to disablement benefit (para 6) and to severe disablement allowance (para 4).  Key to applying para 1(a) is “the period taken into account by the assessment.”  In the case of para 6, if one momentarily removes the parentheses, that period “shall be the period…during which the claimant has suffered and may be expected to continue to suffer from the relevant loss of faculty”.  One looks back at when he “has suffered” from it and forward at when he “may be expected to continue to suffer” from it.

16. It is true that the tenses used in paras 1 and 6 do not happily link together.  Reading para 1(a) one might, at first glance, conclude that it was referring only to a process of looking forward from the date of assessment.  It would be clear if it had said “to which the claimant has been subject or may be expected …to be subject”.  Even though it does not say it in terms, I consider that must be its meaning, for two main reasons. 

17. Firstly, the general provision of para 1(a) must on general principles yield to the specific of paras 4 and 6. To hold otherwise would deprive those latter provisions of the effect that they were clearly intended to have.  Para 6 takes one back to a date linked to when loss of faculty is first suffered; para 4 takes one back to dates which may be not later than 196 days before a claimant claimed severe disablement allowance and thus necessarily before the date of any assessment.  The former is likely to be, and the latter necessarily will be, historical in character.  More important for present purposes than any lingering life para 4 may have continued to have for the purposes of certain claimants to severe disablement allowance is the fact that it was made in that form in the first place, as this is indicative of how paras 4 and 6 on the one hand, and the more general para 1, were intended to work together.  While a statute may be “constantly speaking”, I am unable to infer any change to the intended role of para 6 in relation to para 1 from the fact that para 4 may subsequently have been repealed (with savings).  Because I regard para 1 as yielding to the more specific para 6 rather than the other way round, I am unable to accept the Secretary of State’s written submission that para 1 itself makes it unnecessary to go back to the earlier date required by para 6.

18. My second ground is that a person whose condition had changed between his claim and his assessment would lose out if the assessment looked only forwards and Mr Cooper confirmed that, notwithstanding a suggestion to the contrary in the Secretary of State’s skeleton argument (which had, I imagine, been prepared before Mr Cooper was instructed), that was not his client’s position. 

19. Support for both the above points can be derived from the fact that, historically, it was possible to backdate claims for disablement benefit to a very substantial extent.  Before the amendment of the Social Security (Claims and Payments) Regulations 1987/1968 by SI 1997/793, claims could be backdated for “good cause”.  Although that provision was subject to section 1(2) of the Social Security Administration Act 1992, which in general imposed a 12 month limit, that limit did not apply to disablement benefit (section 1(2) remains in those terms to this day).  Accordingly, at any rate in cases where no question that a disease had been prescribed only recently arose, the system for assessing disablement had to be capable of assessing historic disablement, as against a comparator, over what may have been a very extended period.  It appears that while the “good cause” provisions were repealed, no change was made to the system of assessing disablement.

20. I also consider that the Secretary of State places undue weight on the reference to “the date of the assessment” in para 1(a) in support of an argument that one only has to look at the claimant’s condition at that date.  The position of the words “having regard to his physical and mental condition at the date of the assessment” is between “expected” and “to be subject”: in other words, the phrase is explaining that when conducting an exercise of future prediction, one may go on what is already observable at the date of the assessment.  In my view it does not go further than that, nor in any event does it preclude regard from being had to other factors in conducting the assessment.

21. The point on which the Secretary of State places most weight so far as arguments of construction go, however, is para 7.  Mr Cooper’s argument is that the words from “but the percentage” to the end mean that the period in respect of which it is necessary to conduct an assessment is limited to the dates in respect of which benefit is payable i.e. in this case from when benefit was prescribed.  At first sight, there may be a number of possible counters to this argument, although answers may be available to each.

22. Firstly, if one takes a literal view, one may argue that the wording of para 7 is not apt to have the effect for which Mr Cooper contends.  The period is not being specified “more particularly” (or less so) by specifying 13 July 2009 rather than the date of onset as the start date for the period.  The period is being specified with equal particularity, merely with different dates.

23.  The answer to that is that the period starts before that date, but that it is not necessary to specify precisely when, as a claimant cannot possibly get benefit from the earlier date.  This may, therefore, be little more than a question of how technically to phrase the commencement of the period so as to be consistent with para 7.

24. Secondly, if the limitation created by para 7 is to what is “necessary for the purpose of determining in accordance with section 103 above … the claimant's rights as to disablement pension”, the logically prior question is what those rights are which a claimant acquires by making a claim on or after 13 July 2009.  As section 103(5) brings into play the provisions of Schedule 6, one possible reading of para 7 is that it cannot operate so as to defeat the application of the express terms of para 6.

25.  Against that, one can reasonably argue that para 7 itself falls within schedule 6 and effect must be given to that paragraph too, if section 103(5) is to be properly applied.

26. Thirdly, as (by section 1 of the Social Security Administration Act 1992) it is a condition of entitlement to benefit that a claim is made (with a few exceptions in the Social Security (Claims and Payments) Regulations 1987/1968, none of which are relevant here), one can suggest that the presence of the closing words “(whether or not a claim has been made)” means that entitlement to benefit cannot be the key to determining what para 7 is intended to mean.

27. Against that, it may be suggested that the wording in parentheses applies to reduced earnings allowance and is a recognition that there are – subject to the phasing out of reduced earnings allowance – two benefits which could potentially be claimed which are dependent on the same assessment (SSWP v Whalley [2003] EWCA Civ 166), but which would not necessarily be claimed together.  The purpose of the wording is therefore to ensure that the effect of para 7 not to require a degree of particularity that would be hypothetical in the circumstances applies only if it would be hypothetical in the circumstances of a disablement benefit claim and any claim for reduced earnings allowance, whether or not the latter had actually been claimed at that time. 

28. I am minded to prefer the arguments in paras 23, 25 and 27 over those in paras 22, 24 and 26, but test them against an examination of the consequences if the arguments in paras 22, 24 and 26 were to prevail.

29. On such a hypothesis, it might be necessary to assess a person’s disablement going right back to the date of onset (or 91 days afterwards).  However, that would not mean that the consequent percentage assessment, pursuant to which benefit might fall to be paid after 13 July 2009 (and once a claim had bene made) would necessarily reflect that.  Even if a present claimant was much more disabled in (say) the 1980s or 1990s then the hypothetical comparator with whom he fell to be compared, there could be no assurance that the then greater degree of relative disablement would flow into an award.  Indeed, it is highly likely that it would not.  Stepped awards, under which an award is made at X% for a period and then Y% for another period, because a change in circumstances can be anticipated, are an established part of the industrial injuries scheme.  In such cases as the present, the relative disablement (i.e. a higher figure of X% before a claimant’s operation, when he was younger and the comparator fitter, and a lower figure of Y% after a claimant’s operation) would not even have to be anticipated, as it would be known.  In such cases, where the onset of the disease is before the date on which it was prescribed, if the historical period did fall to be taken into account the result would be in all probability that any assessment would be at X% for the first period and Y% later, but that only the latter period would fall after 13 July 2009.  The principle of making a stepped award in such circumstances would in my view be unchallengeable.

30. To prefer a view of regulation 7 under which the arguments in paras 22, 24 and 26 prevail would therefore be, at least in the vast majority of cases, to require a historical assessment of disability to be carried out for no practical purpose.  As Lord Denning MR put it in Barrett Bros (Taxis) Ltd v Davies [1966] 1 WLR 1334 at 1339, “the law never compels a person to do that which is useless and unnecessary.”

31. True it is that there might be other options notionally open to assessing at Y%, such as assessing the whole period of disability (including that during the period before the disease was prescribed) at a composite rate of Z%, so that part of the enhanced degree of relative disability reflected in the X% rate would come to be reflected in the Z% rate.  However, it is hard to see why such a course should be adopted in cases where the facts are already known.  The possibility that in isolated cases such a course might be adopted while being unlikely to become established as the correct general approach means that to adopt a construction compelling a historical examination of disablement would tend to promote inequity of treatment between claimants in essentially like circumstances, which is also something it would be right to lean against.

32. Further, it seems to me that a construction of para 7 which would have the effect of requiring historical disablement to be taken into account falls foul of the presumption against retrospective legislation to which Mr Commissioner Goodman referred in R(I)4/96, as being a “statute which operates on cases or facts coming into existence before its commencement in the sense that it affects, even if for the future only, the character or consequences of transactions previous entered into or of other past conduct.”  That being so, one would expect to find express words or a necessary implication to that effect and in my view it contains none, nor, for the reasons above, is it necessary to imply such, when there are credible alternative ways of reading the legislation available.

33. There is little authority on the point.  Mr Cooper has referred me to the decision in CI/3521/1999.  Its relevance is that in para 23, in the course of a direction, the Commissioner indicated that where a prescribed disease was only prescribed from a given more recent date, “that will of course drastically reduce the period for which disablement may be assessed.”  This appears from its place in the decision to have been an assumption, not made following argument, and I place little weight on it other than as reflecting the instinct of an experienced Commissioner for what was right. 

34. However, because I prefer the arguments in paras 23, 25 and 27 to those in paras 22, 24 and 26, and because of the views I have taken above, I prefer a construction (which is also consistent with the view of the Commissioner in CI/3521/1999) which means that because a claimant cannot have any right to disablement benefit (or reduced earnings allowance) before 13 July 2009 it is not “necessary” (as used in para 7) to specify more particularly the period, other than to say that it began at a date before 13 July 2009 and then go on to assess the degree of disablement from that date.  Such a construction does not in my view adversely affect claimants’ rights.  An award at Y% would be a sufficient and lawful way of calculating the assessment in their cases, just as it would have been to have implemented a stepped award had the longer period fallen to be taken into account.  While it may be true, as Mr Carragher points out, that people in the claimant’s position will have experienced a perhaps considerable period of disability before PD A14 was prescribed, for which they will not receive compensation through the industrial injuries scheme, that in my view follows from the fact that the amending legislation was only introduced in 2009 and that it and the overall scheme of the legislation are expressed in the form they are.

35. Because of the conclusion which I have reached on the primary point, it is not necessary to consider Mr Cooper’s alternative submissions.

36. I should add that I recognise that much of this discussion must seem technical and somewhat removed from the claimant's concern, which is that (as he sees it) he has been inadequately compensated for the damage to his knees, from which he admittedly suffers due to a prescribed disease.  As I explained when refusing permission to appeal on other points, the Upper Tribunal can only considerer errors of law and the fact that he may disagree with the assessment by the original First-tier Tribunal does not entitle me to intervene unless there is one.  As it turns out, I have now concluded after considerable thought that there was not an error of law in how the tribunal approached the question of historic disablement either.  It follows from that that his appeal must fail.

37. On both occasions when I have met the claimant, he has indicated that he feels that the decision on his claim was something of a slap in the face, given his long service in coal-mining, including in particularly demanding roles such as colliery rescue teams.  One can only have respect for someone whose working life has been spent in such tasks. However, the award of disablement benefit is not intended as an acknowledgment of meritorious and committed service and so failure to award it should not be interpreted as a lack of such acknowledgment.  What Parliament has approved is a scheme for compensating those whose disablement, from certain causes, reaches a defined extent when assessed in accordance with certain rules.  Those rules were properly applied in the claimant's case. 

CG Ward
Judge of the Upper Tribunal
27 October 2011