Hearing Date: 15 June 2011

THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

DECISION OF THE UPPER TRIBUNAL JUDGE

Before: D J MAY QC

Attendances: 

For the Appellant: Mr Webster,  Advocate instructed by Solicitor, of the Office of the Solicitor to the Advocate General 

For the Respondent: 	Ms Harry, Clydeside Action on Asbestos.

The appeal is allowed.  

The decision of the tribunal given at Inverness on 15 June 2011 is set aside.

The Judge of the Upper Tribunal remakes the decision that the First-tier Tribunal ought to have given.  It is as follows: Prescribed disease 8A is not prescribed in relation to the claimant.

REASONS FOR DECISION

1.	On 21 September 2010 the claimant submitted a claim to industrial injuries disablement benefit in respect of prescribed disease D8A, known as primary carcinoma of the lung.  His claim was refused by a decision maker on 28 October 2010.  The decision maker decided that the disease is not prescribed in relation to the claimant.

The claimant thereafter appealed to the First-tier Tribunal.  

2.	The claimant’s appeal was heard by that tribunal on 15 June 2011.  The tribunal allowed the claimant’s appeal and found that he was entitled to industrial injuries disablement benefit as he was suffering from prescribed disease D8A.  He was assessed as being one hundred per cent disabled as a consequence of this disease.  The period of this assessment is from 1 January 2010 for life.  The claimant subsequently died.  His interest in this appeal is pursued by his widow.  

3.	In making their decision the tribunal said:

	“Although [the claimant] was employed as a scaffolder and was not directly himself employed in using asbestos to insulate pipes, he was routinely working in close proximity to those who were using asbestos for that purpose.

	We have had regard to the precise wording of the prescription.  Although his representative urges us to concentrate on paragraph (c) in fact, since [the claimant] was largely working on the construction of oil rigs, it is our conclusion on the basis of [the claimant’s] evidence that he was exposed to asbestos in the course of his employment which arose in terms of both paragraphs (c) and (d).”

4.	The Secretary of State has appealed against this decision.  An oral hearing of the appeal was heard before me on 11 May 2012.

5.	The finding in fact which is material in the appeal before me is set out above.  The question in the appeal is whether or not the claimant’s disease which was primary carcinoma of the lung was prescribed in relation to himself. 

6.	The starting point for consideration of the issue which requires to be determined in this appeal is, I consider, conveniently summarised by Upper Tribunal Judge Howell QC in [2011] AAC R4.  There in paragraphs 4 and 5 he says:

	“4.	What is at issue in this appeal, as already indicated, is whether the medical condition which gives rise to that disablement is within the terms of the prescription of disease A4 at all.  Industrial injuries benefits for illnesses or injuries other than accidents can only become payable under section 108 Social Security Contributions and Benefits Act 1992 if the medical condition giving rise to the claimed disability falls within the specific list of diseases or personal injuries expressly prescribed in relation to the person’s employment by the regulations made by the Secretary of State under that section as from time to time in force.  

	5.	The cardinal condition for any disease or injury to be included in that list, and before any question of benefit becoming payable in respect of it under the statutory scheme can arise, is that in section 108(2) as follows:

	“(2)	A disease or injury may be prescribed in relation to any employed earners if the Secretary of State is satisfied that –

		(a)	it ought to be treated, having regard to its causes and incidence and any other relevant considerations, as a risk of their occupations and not as a risk common to all persons; and

		(b)	it is such that, in the absence of special circumstances, the attribution of particular cases to the nature of the employment can be established or presumed with reasonable certainty.”

7.	In accordance with the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985 there was included within the list of prescribed diseases set out in schedule 1 of these Regulations prescribed disease D8 which was:

	“D8	Primary carcinoma of the lung where there is accompanying evidence of one or both of the following:-

		(a)	asbestosis;
		(b)	bilateral diffuse pleural thickening.”

The occupation to which that prescribed disease applied was any occupation involving:

	“(a)	the working or handling of asbestos or any admixture of asbestos; or

 (b)	the manufacture or repair of asbestos textiles or other articles containing or composed of asbestos; or

	(c)	the cleaning of any machinery or plant used in any of the foregoing operations and of any chambers, fixtures and appliances for the collection of asbestos dust; or

	(d)	substantial exposure to the dust arising from any of the foregoing operations.”

These regulations were amended by the Social Security (Industrial Injuries) (Prescribed Diseases) Amendment Regulations 2006 coming into force on 6 April 2006.   The version brought in force by these regulations was in the following terms:

“D8 	Primary carcinoma of the lung where there is accompanying evidence of  asbestos.

		(a)	The working or handling of asbestos or any admixture of asbestos; or
		
(b)	the manufacture or repair of asbestos textiles or other articles containing or composed of asbestos; or

(c)	the cleaning of any machinery or plant used in any of the foregoing operations and of any chambers, fixtures and appliances for the collection of asbestos dust; or

(d)	substantial exposure to the dust arising from any of the foregoing operations.

D8A	Primary carcinoma of the lung.

	Exposure to asbestos in the course of –

	(a)	the manufacture of asbestos textiles; or

	(b)	spraying asbestos; or

	(c)	asbestos insulation work; or

	(d)	applying or removing materials containing asbestos in the course of shipbuilding, where all or any of the exposure occurs before 1st January 1975, for a period of, or periods which amount in aggregate to, five years or more, or otherwise, for a period of, or periods which amount in aggregate to, ten years or more.”.

8.	Mr Webster explained to me that prior to the laying of the amendment regulations before Parliament asbestos related diseases had been the subject of:

	“Report by the Industrial Injuries Advisory Council in accordance with Section 171
	of the Social Security Administration Act 1992 reviewing the prescription of the
	asbestos-related diseases.”

This was done in CM6553.  In a letter to the Secretary of State dated 20 January 2005 the Chairman of the Council said:

	“4.	The prescription of lung cancer due to asbestos has had a long history.  Whilst it is clear that there is an excess of risk of lung cancer in the presence of asbestosis, evidence has accumulated which demonstrates that lung cancer can occur independently from asbestosis, where substantial occupational exposure to asbestos has occurred.  We recommend adding lung cancer in the absence of asbestosis, for occupations where there is evidence of substantial occupational asbestos exposure, to the terms of prescription for PD D8.  We further recommend removing pleural thickening from the terms of prescription for lung cancer, as it is unreliable as an indicator of substantial asbestos exposure – the purpose it was meant to serve.  Due to the poor prognosis for those with asbestos-related lung cancer, we recommend that all claimants of PD D8 be assessed at 100% disablement.”

The report does require to be read as a whole.  It is apparent that the Council were aware that as asbestos-related lung cancer can occur after substantial exposure to asbestos within the period set out by them in paragraph 23.  They note that it is indistinguishable from lung cancer due to other cases.  The Council noted the legal requirements for prescription to which I have referred to above.  They appreciated in the statutory context that a disease may only be prescribed if there is a recognised risk to workers in an occupation and the link between disease and occupation can be established or reasonably presumed in individual cases.  The summary of their investigations is set out by them in paragraph 65 of their report:

	“65.	In summary, lung cancer can be attributed to occupation where workers have been exposed to substantial asbestos exposure.  Workers with substantial asbestos exposure are those where asbestosis is present, or workers in the following categories: asbestos textile workers, asbestos sprayers, asbestos insulation workers including those applying and removing asbestos-containing materials in shipbuilding.  The Council recommends that workers in the jobs listed require at least 5 years asbestos exposure before 1975 or at least 10 years asbestos exposure after 1975 to fulfil the terms of prescription.  Recent evidence indicates that diffuse pleural thickening is an unreliable marker of asbestos exposure and the Council recommends removing the requirement for the presence of diffuse pleural thickening from the terms of prescription for PD D8.”

Their recommendations to the Secretary of State are contained in paragraph 68 where they say:

	“68.	The Council recommends that:

		(a)	Lung Cancer should remain prescribed in cases of asbestosis.
		
(b)	The list of occupational categories for workers with lung cancer and asbestosis should remain unchanged.

(c)	Workers with lung cancer without asbestosis, but who have a history of substantial asbestos exposure should be added to the terms of prescription for PD D8.  The Council recommends that the list of occupational exposures for workers with lung cancer without asbestosis should be: workers in asbestos textile manufacture; 

	asbestos sprayers; asbestos insulation workers, including those applying and removing asbestos-containing materials in shipbuilding.  For exposures occurring before 1975 workers should have been in the occupations listed for at least 5 years.  For exposures occurring after 1975 workers should have been in occupations listed for at least 10 years.

(d)	Claimants eligible for PD D8 should be assessed at 100% disablement.

(e)	Reference to pleural thickening should be removed from the terms of prescription for PD D8.”

9.	Their recommendations as to the recommended terms of prescription are set out in Appendix 3 of their report and are as follows:

	“D8a	Primary carcinoma of the lung in the presence of asbestosis

		(i)	The working or handling of asbestos or any admixture of asbestos; or

		(ii)	The manufacture or repair of asbestos textiles or other articles containing of composed of asbestos; or

		(iii)	the cleaning of any machinery or plant used in any foregoing operations and of any chambers, fixtures and appliances for the collection of asbestos dust;

		(iv)	or substantial exposure to the dust arising from any of the foregoing operations.

	D8b	Primary carcinoma of the lung in the absence of asbestosis

		Exposure to asbestos for at least 5 years before 1975 and 10 years after 1975 in the following occupations:

	(i)	workers in asbestos textile manufacture;

	(ii)	asbestos sprayers;

(iii)	asbestos insulation work, including those applying and removing asbestos-containing materials in shipbuilding.”

10.	It was following this advice to the Secretary of State that the amendment regulations I have quoted above were brought into force.  Mr Webster referred me to a letter to the Secretary of State from the Chairmen of the Industrial Injuries Advisory Council dated January 2007.  He indicated that the Council’s review of prescribed diseases was complete.  Mr Webster’s submission was that the prescribed disease 8A was only prescribed in respect of occupations which were encompassed by those referred to in paragraphs 65 and 68 of the report of the Industrial Council, and that the definition was not to be widened to encompass those in other occupations albeit with exposure to asbestos such as the claimant’s occupation as set out in the tribunal’s findings in fact.  It was his submission that  in interpreting the statutory provision in respect of the prescribed disease I was entitled to have regard to the Council’s report.  Cited in support of that proposition he referred to what was said by Upper Tribunal Judge Howell QC in [2011] AAC R4 at paragraph 26:

	“26.	Fourthly, the terms of the Advisory Council’s 2006 report which led to the introduction of the 2007 rewording leave no doubt that the only aspect of the existing one sought to be addressed by the introduction of the amendment was the removal of the risk of ambiguity from the use of the old term “cramp”, which seems by then to have been considered somewhat archaic and to require replacing by more up-to-date medical terminology.  Contrary to some of the submissions made to me (initially, at least) by Mr Lazarus, I am entitled and bound to look at this material as an aid to the construction of the subordinate legislation introduced following the reports from this important statutory body for which the legislation itself expressly provides as part of the process.  This is for the purpose of informing myself as to any relevant medical background to the introduction of new or amended provisions of the Schedule and in order to consider the “mischief” that the regulations in their amended form were intended to remedy, and is in accordance with the established practice and authority developed by the Commissioners over many years: see for example R(I) 11/81 paragraph 15, the decision of a strongly constituted Tribunal of Commissioners referring to and following the authority of the House of Lords in Black-Clawson International Ltd v Papierwerke Walhof-Ascheffenburg AG [1975] AC 591 especially per Lord Reid at 614.”

No submission to the contrary was made by the claimant’s representative. 

11.	The claimant’s representative made a submission on this which was consistent with her written submission which said:

	“The legislation adopts the phrase ‘Exposure to asbestos in the course of … asbestos insulation work’ which, I submit, is more inclusive than the wording in the IIAC Report which refers specifically to ‘asbestos insulation workers’.  Had the intention been to restrict and ‘strictly limit’ the employment criteria to insulating engineers this would be clearly reflected in the wording of the legislation.  My submission is that it is not.  There is a clear difference between defining a category of workers (asbestos insulation workers) as stated in the IIAC Report, and the resulting wording of the legislation which does not define a category of workers.

	Those whose work was in close proximity to asbestos insulation workers for the required periods of time as defined by the legislation, would be subjected to the same levels of exposure as the insulation workers.  Their exposure would therefore fall within the criteria of being exposed to asbestos ‘in the course asbestos insulation work’ thus satisfying the criteria laid down in the legislation rather than the recommendations of the IIAC Report.”

12.	Her argument is an attractive one and on the face of it, it is arguable that the wording chosen for the regulation and brought into effect was wide enough to encompass those who worked in the proximity of the activities being carried out which are referred to in the regulation as well as those who were actually doing the work. 

13.	However, I have reached the conclusion that the Secretary of State altered the regulations in the light of the advice that he was given by the Council.  As is apparent from their report the Council carried extensive and exhaustive investigations in relation to the prescription and gave that advice in the context of the provisions contained in section 108(2) of the Contributions and Benefits Act.  There was no suggestion that there was any other advice given to the Secretary of State and standing what was said by Upper Tribunal Judge Howell QC the Upper Tribunal is not only entitled but bound to look at the Report as an aid to the construction of the subordinate legislation.  If that is done it is apparent that there was a reasoned restriction of occupations on their part.   Notwithstanding that the Secretary of State did not adopt the formula for the description of the occupation related to the prescribed disease proposed by the Council and although the occupation could be read on a somewhat wider basis than the Secretary of State suggests I am persuaded in the light of the advice which was given to the Secretary of State that the regulation should be interpreted in the context of that advice. 

14.	The approach I have taken is I consider consistent with that set out by Upper Tribunal Judge Wikeley in [2010] UKUT 207 (AAC) in paragraph 65 where he said:
	
	“66.	The general guidance above on the application of the prescription test for diseases prescribed under the Schedule to the 1985 Regulations may be summarised as follows:

	(1)	In interpreting the occupational requirements for a prescribed disease, “it would be wrong to give to those words too narrow a definition when one considers the purpose of the statute, which was to provide compensation for those who suffered the prescribed disease as result of their occupation” (Secretary of State for Social Security v Davis [2001] EWCA Civ 105 at paragraph 23 per Rix L.J.);

	(2)	Just as the statutory language should not be “artificially narrowed”, so too it should not be “artificially widened” (CI/207/2004);

	(3)	The focus must always be on what the claimant actually did, not what his job was labelled (Janicki v Secretary of State for Social Security, also reported as R(I) 1/01, and CI/2668/2002);

	(4)	Courts and tribunals may have regard to relevant Industrial Injuries Advisory Council reports as an aid to construction where legislation has been enacted to implement a recommendation in the report (R(I) 15/75 Davis, Janicki and Secretary of State for Work and Pensions v CS (II) [2010] UKUT 198 (AAC)).

This is not a case where the label of what the claimant did was different from what he actually did.  It is accepted that his job did not involve participating in the activities referred to in the regulation.   The report in my view is concerned with active involvement and in interpreting the regulation in that way this is fatal to the assertion that a claimant satisfied that he was in an occupation to which the prescribed disease applied.  To determine otherwise would be to artificially widen the statutory language.  The Secretary of State’s appeal accordingly succeeds.

		(Signed)
		D J MAY QC
		Judge of the Upper Tribunal
		Date: 28 May 2012