AJ v Secretary of State for Work and Pensions (II) [2012] UKUT 209 (AAC)

UKUT-AAC
AJ v Secretary of State for Work and Pensions (II)
[2012] UKUT 209 (AAC) · 2012-06-19
[1]The appellant’s appeal to the Upper Tribunal is dismissed. The First-tier Tribunal’s decision stands.[2]This is not to say that this is the end of the road for the appellant. He may well decide to make a fresh claim for industrial disablement benefit, for the reasons explained further below. The background to the appeal to the First-tier Tribunal[3]The appellant is a 53-year-old man who worked as a coal miner between 1975 and 1994. More recently he has worked as a roofer. Understandably these types of work have taken its toll on his knees.[4]On 5 October 2009 the appellant claimed industrial disablement benefit for prescribed disease (PD) A14 (osteoarthritis of the knee). He said on his claim form that he had started having problems with his knees in May 1987.[5]On 5 August 2010 a doctor examined the appellant on behalf of the Department. The examining doctor recorded the first part of the appellant’s history of knee problems as follows: “I have had injuries on my right knee around 1986-87. I had to be carried out of the pit. The right knee just locked and couldn’t move. I had been taken to hospital, x-rays were taken and was bandaged. I was advised to rest. Ever since then I have been having the knee problems. The right knee has been worse than the left knee.[6]The doctor confirmed the diagnosis of PD A14 but also recorded pre-existing problems in terms of the right knee injury, back problems and ankle problems. In addition, he noted an unconnected problem of vibration white finger (which was subject to a 5% assessment). He assessed the lower limb disablement as 10%, with offsets for 4% (right knee injury) and 2% each for the back and ankle problems. This resulted in a net final assessment of 2% for PD A14 for life.[7]On 28 September 2010 the decision maker accepted the examining doctor’s advice and so refused the claim for industrial disablement benefit on the basis of PD A14 as the assessment was below 14%. The appellant lodged an appeal. The appeal to the FTT[8]The appellant attended a hearing at the First-tier Tribunal in Leeds on 7 July 2011. In his oral evidence he confirmed that the right knee injury had been sustained in 1986 or 1987:
“2 days off work; it locked; no claim [for industrial disablement benefit] ... carried out of the pit; Barnsley Hospital x-ray; bandaged”
. He also confirmed, as he had told the examining doctor and as supported by the medical evidence, that he had an arthroscopy on the right knee in 2001 and a MRI scan in 2004.[9]The FTT allowed the appellant’s appeal, but not in a way that made any immediate difference to his claim for PD A14. The FTT set aside the Secretary of State’s decision. The tribunal confirmed that the appellant suffered from PD A14 and that the relevant loss of faculty was impaired function of the lower limbs. The difference was on the level of assessment.[10]The FTT’s decision notice stated that the disablement relating to PD A14 was assessed as 7% net for life, after offsetting 8% for the previous right knee injury.[11]The FTT’s statement of reasons accepted the appellant’s account of the mining accident in 1986 or 1987. The FTT ruled that as the primary loss of faculty was impaired function in the knees, it was inappropriate to make an offset for the back or ankle injuries. In any event, the FTT would have assessed those at less than 1%. The FTT assessed the knee disablement at 15%, but found the greater part to be attributable to the 1986/87 injury, given the evidence from the MRI scan. This accounted for the offset of 8%, leading to the net assessment of 7%. The proceedings before the Upper Tribunal[12]The appellant applied for permission to appeal to the Upper Tribunal, arguing that the level of assessment was wrong as both his GP and his consultant had disagreed with the level awarded.[13]Initially I issued directions on the application, pointing out that a disagreement of opinion over the facts was unlikely to give rise to an arguable error of law. However, I asked the Secretary of State’s representative to comment on two further issues, namely(i) should the FTT have explored the circumstances of the 1986/87 accident further?; and(ii) should the FTT have considered further the issue of aggregation with the pre-existing award of 5% for vibration white finger?[14]Mr Mick Hampton, who now acts for the Secretary of State in these proceedings, did not support the application for permission to appeal to the Upper Tribunal. However, he was happy for his submission to stand as his submission on any appeal. I subsequently gave the appellant permission to appeal, who has argued that the FTT was wrong not to examine the 1986/87 incident further. He also adds that he was unaware that there was any possibility of aggregating the assessments for vibration white finger and for PD A14, and that this should have been made clear to him.[15]There are, therefore, three issues to consider on this appeal: the appellant’s original ground of appeal relating to the level of the assessment and the two further issues identified in paragraph 13 above. (1) The level of assessment for A14[16]The appellant’s argument is that his own doctors disagree with the FTT’s assessment, and say that it does not properly reflect the true level of his disablement. Mr Hampton, for the Secretary of State, argues that a disagreement of opinion such as this does not highlight an arguable point of law.[17]I agree with Mr Hampton. I have to say that if this was the only issue in this case I would not have given permission to appeal. There is no magic formula which predetermines the assessment of disablement. This assessment involves the exercise of judgment within the relatively broad statutory framework, especially for injuries which are not listed in the Schedule to the Social Security (General Benefit) Regulations 1982 (SI 1982/1408). The tribunal in the current case properly identified the relevant statutory principles, and in particular the need to make a comparison with a person of the same age and sex without the disabling conditions in question (see Schedule 6 to the Social Security Contributions and Benefits Act 1992).[18]It follows that tribunals have a fair degree of discretion in making the required assessment.

(I) 2/06 (at paragraph 44):

“44. In an exercise of judgment and evaluation such as is involved in the assessment in percentage terms of an individual claimant's degree of functional disablement, there is inevitably a band within which an assessment would be reasonable, and the reasons why a particular percentage has been arrived at rather than a point or two higher or lower may be impossible to state with exact precision. As on all questions of valuation or the assessment of any amount, they may be difficult to explain otherwise than by making clear the factors that have or have not been taken into account, and confirming that the result reflects the application of the tribunal's own judgment and expertise to those factors and the evidence (see Murrell v Secretary of State for Social Services ...; and R(I) 30/61 at paragraph 8).”
[19]The simple fact that the appellant’s own doctors think that the assessment is too low does not mean that the FTT erred in law. (2) The 1986/87 accident and the right knee injury[20]Mr Hampton submits that on the evidence before it the FTT was entitled to proceed on the basis that there had been no claim in respect of the 1986/87 knee injury. He points out that the appellant can still ask for an accident declaration for that incident and can still make a claim for benefit in respect of that injury. He suggests, however, that there may be evidential difficulties given the incident was so long ago.[21]The appellant argues that the 1986/87 incident should have been investigated more fully by the FTT at his hearing. He also argues that the FTT should have advised him to make a claim for that injury.[22]The starting point is that the FTT is there to hear appeals against decisions made by the Secretary of State and to resolve the factual disputes that arise in that context. It is not there to offer general advice or guidance – although it may in appropriate cases “point the appellant in the right direction”, as part of its general enabling function. In such cases it is obviously important that tribunals do not give the impression that a particular result will necessarily follow. The better approach is a comment along the lines of “You may find it helpful to take some advice from the CAB or the advice centre about whether you might be able to...”.[23]In the present case the appellant’s evidence was that he had never made a claim for industrial disablement benefit in respect of the 1986/87 right knee injury (or applied for an accident declaration). It followed that there was no decision by the Secretary of State on appeal before the FTT as to whether that was an industrial accident.[24]It might be suggested that the FTT might have adjourned the hearing in order for the appellant to make such a claim and for the Department to investigate it and for a decision to be made. However, that would undoubtedly have caused further delay. It was certainly not unreasonable for the FTT to proceed with the appeal before it. There was no error of law in this respect. However, I return further below to the issue of the 1986/87 injury. (3) The possible aggregation with the assessment for vibration white finger[25]Mr Hampton gives two reasons for submitting that there was no error of law by the FTT with regard to the vibration white finger assessment.[26]First, he notes that the FTT only made a decision on the extent of disablement arising from PD A14, and did not make an outcome decision (as regards entitlement to industrial disablement benefit) and was not necessarily required to do so.[27]Second, Mr Hampton submits that it would have made no difference anyway, as the combined assessment of 7% awarded by the FTT together with the existing 5% for vibration white finger only came to 12%, which was still below the threshold of 14% for an award of industrial disablement benefit.[28]The appellant concedes that on the FTT’s findings, even with the vibration white finger assessment, he would not have reached the 14% threshold. Understandably, he makes no submissions on the thorny procedural and technical issues around “outcome decisions”.[29]I am not sure that I can fully agree with Mr Hampton’s first point. It is perfectly true that, in principle, a claimant may have an independent right of appeal against a freestanding decision on the assessment of disablement for industrial disablement benefit: see section 12(1)(b) of the Social Security Act 1998 and regulation 26(c) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (SI 1999/991). This would be separate from the right of appeal against the “outcome decision” that a person is not entitled to industrial disablement benefit.[30]Furthermore, in R(I) 5/02, a Tribunal of three Commissioners ruled that a FTT considering an assessment appeal had no jurisdiction to consider a refusal of benefit consequential upon the assessment of disablement. The Tribunal of Commissioners also stated that if the claimant’s letter of appeal only raised the assessment issue, then that was the only decision under appeal (at paragraph [35]). However, it was not clear in that case how the two separate decisions had been notified to the claimant in question. Moreover, in CI/1547/2001, Mr Commissioner (now Judge) Rowland suggested that appeals against assessment decisions should be treated as appeals against the consequent entitlement decision (at paragraph [18]). The reason given for this approach lay in the technical difficulties that would otherwise arise in dealing with the consequences of a successful appeal on the issue of assessment alone.[31]It is therefore relevant to look at the precise terms of the decision and the appeal made in this case. The official record of the decision of 28 September 2010 described it as a disallowance of a claim. It stated the assessment was 2% final for life, and that “as a result disablement benefit is disallowed from an including 13/7/2009 because the assessment of disablement amounts to less than 14%.” The subsequent record of the appellant’s request for a reconsideration of that decision described it as an “outcome decision”.[32]The appellant’s letter of appeal stated:
“After many years suffering I was advised by my G.P. to get specialist evidence. This I did and sent to you. I’m also under a specialist. I disagree with why the doctor in question decided to adjust my %, saying I had problems with my ankle and back. It was my knee I went for.”
[33]True, the prime focus of the appellant’s letter of appeal was the level of the disablement assessment for his knees. However, if a friend had been looking over his shoulder as he wrote the letter, and had asked “Are you also unhappy with the decision to refuse you industrial disablement benefit?”, I have no doubt that the appellant would have replied “Of course I am; that’s obvious, isn’t it?”.[34]In this regard I endorse the observations of Judge Warren in CS v Secretary of State for Work and Pensions (DLA) [2011] UKUT 509 (AAC) at paragraph 18:
“... Appellants often have difficulty in identifying the decision or decisions which they should appeal. ... In my judgement the approach to be adopted, is that, once the appellant has expressed a grievance in the letter of appeal, it is then for those more knowledgeable with the process, be they officers of the DWP or tribunal judges to identify the decision or the decisions which are the source of the appellant’s grievance and then to treat the letter of appeal accordingly.”
[35]There is accordingly an argument that the FTT might have formally gone on to make a decision on the appellant’s claim for industrial disablement benefit itself, and not simply the level of assessment for PD A14. However, in the circumstances of this case, and the level of the assessment for vibration white finger, I am not satisfied that the FTT’s approach was material to the outcome. I find no material error of law by the FTT in this respect. The 1986/87 right knee injury[36]As Mr Hampton points out, it is not too late for the appellant to apply for an accident declaration and indeed to make a claim for industrial disablement benefit in respect of the 1986/87 injury. I simply note that the right to apply for a declaration in the absence of a claim (see section 29(2) of the Social Security Act 1998) is to be repealed by section 68(1) of the Welfare Reform Act 2012. However, it is obviously in the appellant’s interests to make a claim as such for the 1986/87 injury, even though any successful claim will only result in payment for a forward rather than past period, given the limited provision for backdating.[37]I am not sure that the evidential difficulties to which Mr Hampton refers will necessarily be a problem in practice. Both the examining doctor and the FTT had no difficulty in accepting the appellant’s very clear and consistent account of what happened when he injured his right knee in the mid-1980s. The problem may be in identifying when precisely this incident took place, although I note that on his claim form the appellant referred to knee problems starting in May 1987. His G.P.’s records or hospital notes may well resolve the issue of the correct date once and for all.[38]If the appellant makes such a claim, or applies for a supersession of an existing decision on the basis of a change in circumstances, and it is accepted that he suffered an industrial accident, then there will need to be an assessment of disablement for his right knee injury. That determination will not be bound by the 8% offset applied by the FTT in this case, but will doubtless take it into account. A decision can then be taken on whether the appellant qualifies for industrial disablement benefit bearing in mind the existing assessments for PD A14 and vibration white finger and any such new assessment for the right knee injury. That decision will carry its own rights of appeal to a new FTT, if required. Conclusion[39]I therefore conclude that the decision of the First-tier Tribunal does not involve any material error of law. I accordingly dismiss the appeal (Tribunals, Courts and Enforcement Act 2007, section 11).[40]The appellant, of course, may wish to make a fresh claim for industrial disablement benefit based on the knee injury from 1986/87. Any decision arising from such a claim would give rise to fresh rights of appeal to the FTT. The appellant may find it helpful to seek advice from an organisation such as a Citizens Advice Bureau, law centre or welfare rights agency. Signed on the original Nicholas Wikeley on 19 June 2012 Judge of the Upper Tribunal

Cited in 5 later judgments