R(I) 4/96

Mr. M. J. Goodman	CI/414/1994
8.6.95 	
Prescribed diseases D12 (miner’s bronchitis etc.) - disease prescribed from 13 September 1993 - whether claimant suffering from disease since 1970 entitled to disablement benefit in respect of any period before 13 September 1993
Prescribed disease D12 (miner’s bronchitis, etc.) was added to Part 1 of Schedule 1 to the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1995 with effect from 13 September 1993. The claimant contended that he should be awarded disablement benefit from 1 September 1970, the date that he first suffered a relevant loss of faculty from the disease. 
Held  that:
disablement benefit for a new prescribed disease cannot be paid for any day prior to the coming into operation of the statutory instrument that prescribes that disease.

decision of the social security commissioner
1.	I dismiss the claimant’s appeal against the decision of the social security appeal tribunal dated 12 May 1994 as that decision is not erroneous in law:  Social Security Administration Act 1992, section 23.
2.	This is an appeal to the Commissioner by the claimant, a man born on           19 June 1915.  The appeal is against the unanimous decision of a social security appeal tribunal dated 12 May 1994, which dismissed the claimant’s appeal from a decision of the adjudication officer issued on 8 December 1993 limiting an award of disablement benefit (for prescribed disease D12, miner’s bronchitis etc.) to start only from 13 September 1993, the date prescribed disease D12 was introduced by statutory instrument (see below).  The claimant contends that he should have been awarded disablement pension (subject to showing “good cause” for delay) back to the date when he first suffered relevant loss of faculty from the disease i.e. 1 September 1970.  That is the date on which the adjudicating medical authority stated that the claimant first satisfied the medical criteria for the disease.  The starting date of the award, however, was not until 13 September 1993, on which day there came into operation the Social Security (Industrial Injuries) (Prescribed Diseases) Amendment (No. 2) Regulations 1993, SI 1993 No. 1985, regulation 6 of which added prescribed disease D12 to Part I of Schedule 1 to the principal regulations i.e. the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985.
3.	Prescribed disease D12, thus added, reads as follows:
“Prescribed disease or
injury		Occupation
Any occupation involving	
D12 Except in the circumstances specified in regulation 2(d) [pneu-moconiosis etc. Accompanied by emphysema or chronic bronchitis], 
		Exposure to coal dust by reason of working underground in a coal mine for a period of, or periods amounting in the aggregate to, at least 20 years (whether before or after 5 July 1948.	

(a)	chronic bronchitis; or
(b)	emphysema; or
(c)	both
where there is accompanying evidence of-
[(i) and (ii)
a detailed description of the amount of coal dust retention and the lung function]”
4.	The appeal was the subject of an oral hearing before me on 24 May 1995 at which the claimant was not present but was represented by Mr. I. Parker the president of the Yorkshire Area of the trade union NACODS. The adjudication officer was represented by Miss S. Ellis of Counsel.  I am indebted to Mr. Parker and to Miss Ellis for their assistance to me at the hearing.
5.	Mr. Parker contended on behalf of the claimant that there is nothing in the social security legislation to prevent payment of disablement benefit related to the actual date of onset of prescribed disease D12 i.e. in the present case 1 September 1970.  He submitted that there is no legislative basis for the adjudication officer’s limitation of payment of disablement benefit to a period commencing with the date that the amending statutory instrument i.e. SI 1993 No. 1985 (see above) came into operation i.e. on 13 September 1993.  Miss Ellis contended that the limitation of the commencement of payment of disablement benefit for a new prescribed disease to a period commencing with the date of coming into operation of the statutory instrument that first prescribes the disease is correct in law and results from the fact that there is no statutory “warrant” for payment before that date.  Consequently, she submitted that no express limiting words are needed.
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.
9.	Miss Ellis referred, in this context, to section 108(3) of the Social Security Contributions and Benefits Act 1992, which reads:
“108 -	(3)	Regulations prescribing any disease or injury ... 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 5 July 1948) shall be treated, subject to any prescribed modifications of this section ... as if the Regulations had been in force when he developed the disease or injury.”
10.	Miss Ellis suggests that there does not appear to be any use of section 108(3) in the 1993 Amendment Regulations.  However, I am by no means certain that section 108(3) has any bearing on the present problem.   In my view it is more concerned with what may be treated as the date of onset of a disease or as a relevant period, such as for example the 20 years referred to in the description of the prescribed occupation (see para. 3 above).  I do not therefore consider that section 108(3) answers much, if anything, to the question whether the 1993 Regulations are retrospective in operation, in the sense of authorising “back-payment”.
11.	Mr. Parker, on behalf of the claimant, nevertheless contended that the 1993 Regulations did operate retrospectively in the financial sense because they were made under the general provisions of section 108 of the 1992 Act, subsection (1) of which enacts that regulations may provide that “any prescribed disease... which is a disease...due to the nature of that employment which developed after 4 July 1948 may be prescribed by regulations”.  He also stressed that the 1993 regulations operated simply by adding prescribed disease D12 to Part I of Schedule 1 of the 1985 Regulations (which themselves were only consolidating regulations).  He therefore contended that the 1993 amending regulations show in intention, if not expressly then by implication, that they should operate retrospectively and authorise “back-payment” of disablement benefit.
12.	I reject that contention by Mr. Parker.  Particularly where considerable financial consequences would ensue, I would expect express wording to show retrospectively of that nature.  The mere fact that the amendment is effected by amending the principal regulations of 1985 (a common practice) does not in my view have the effect of implying retrospective financial operation.  Although it might be possible for regulations made under section 108 of the 1992 Act to have some retrospective  operation (and certainly they can do so in relation to onset, see section 108(3)), I do not consider that there is any evidence here that the 1993 regulations displace the normal presumption against retrospective operation, certainly so far as concerns the payment of benefit.
13.	In addition, Mr. Parker drew attention to the principal regulations of 1985, to indicate that in his view the 1993 regulations should be construed retrospectively.  He referred to regulations 5 (development of disease) and 6 (date of onset) of the 1985 regulations and in particular to the provision of regulation 6(2)(b) that “[in the case of] a claim for disablement benefit...the date of onset shall be the day on which the claimant first suffered from the relevant loss of faculty on or after 5 July 1948.”.  However, that does not in my view assist the claimant’s argument because what is involved there is not the date from which disablement benefit can be paid but the date of onset of the disease.  In the present that has been decided by the medical authority to be 1 September 1970.  However, the date of onset of a disease and the date from which disablement benefit can be paid are two different matters, not necessarily coincident.  I do not therefore consider that regulations 5 and 6 of the 1985 regulations assist the claimant.
9.	Mr. Parker also drew attention to regulations 43 and 44 of the 1985 regulations.  They are headed respectively “Transitional provisions regarding relevant dates” and “Transitional provisions regarding dates of development and dates of onset”.  Regulation 43 is concerned with what it describes as “the relevant date” for prescribed diseases.  However, close examination of regulation 43 (and Schedule 4 to which it refers) lead to the conclusion that what is involved is the relevant date in relation to claims for benefit and not the date from which benefit can necessarily be paid.  It should be noted that in the present case there are special provisions as to the “the relevant date” for claiming in regulation 9 of the amending regulations of 1993 by which persons aged under and over 70 years respectively have different dates on which they can make a claim.   Nevertheless, it is clear that the expression “the relevant date” in regulation 9 of the 1993 regulations and in regulation 43 of the 1985 regulations refers solely to the date (or dates) from which a claim can be treated as being regarded as made.  It does not bear on the date from which payment can be made.
15.	Mr Parker also prayed in aid regulation 44 of and Schedule 5 to the principal regulations of 1985.  Regulation 44, which is headed “Transitional provision regarding dates of development and dates of onset”, provides as follows: 
“44.	Where a claim for benefit has been made before 6th April 1983 or a date of onset is determined which is before 6 April 1983 or a claim for injury benefit is made after 5 April 1983 for a day falling or a period beginning before 6 April 1983 these Regulations shall take effect subject to the provisions of Schedule 5.” (my emphasis).
Those references to April 1983 must mean that that transitional provision is related to the dates of coming into operation of earlier Prescribed Diseases Regulations revoked by the 1985 regulations (see the revocations in Schedule 6 of those regulations).
16.	However Schedule 5 to the 1985 regulations provides, by paragraph 6, as follows:
“6.	There shall be entitlement, in the following cases, to benefit for any day which is earlier than the date specified:-”
There then follow a list of certain prescribed diseases with varying dates e.g. “Viral hepatitis, 2 February 1976”.   Doubtless the dates in question are the dates of coming into operation of the statutory instruments that added those diseases to the statutory list.   Not unnaturally, therefore, Mr. Parker contended that, as prescribed disease D12 was not listed in paragraph 6, it was not intended to limit payment in the way that paragraph 6 limited it for example for viral hepatitis.  It was noted that there had been added into paragraph 6 of Schedule 5 to the 1985 regulations at a later date (by SI 1986 No. 1374) two entries relating to occupational asthma, restricting payment of benefit to days no earlier than 9 March 1982 and 1 September 1986 respectively, depending on the particular agent to which a claimant had been exposed.  Consequently, Mr. Parker argued that, as there had been subsequent entries for occupational asthma, if the Secretary of State had wished to he could have inserted a subsequent entry for prescribed disease D12.  As the Secretary of State had not done so, Mr. Parker argued that it was intended that there should be no limitation on back-dating an award of disablement benefit.
17.	I consider that that argument is erroneous because it is apparent that the whole of Schedule 5 to the 1985 regulations is concerned only with what it describes as “transitional provisions”.  It was concerned to preserve limitations in statutory instruments earlier than 1985, including occupational asthma which had first been introduced in 1982.  The subsequent insertion of the entry in 1986 (see above) is explicable by reference to the fact that SI 1986 No. 1374 was adding to the list of sensitising agents which were prescribed for the purpose of occupational asthma.  It was therefore doubtless thought desirable to make it clear that the normal transitional limitation to 29 March 1982 did not apply to the additional agents where the limitation was to 1 September 1986.  In my judgment therefore the fact the prescribed disease D12 is not listed in paragraph 6 of Schedule 5 to the 1985 Regulations is not particularly significant.  Indeed there have been other prescribed  diseases added to the list in Schedule 1 to the 1985 regulations since 1985.  The fact that they do not make an appearance either in paragraph 6 of Schedule 5 does not in my judgment have any particular significance.
18.	It follows therefore that I conclude that the result arrived at by the tribunal was correct.  Their reasons for decision were simply:
“We have considered the appellant’s representative’s submission and the regulations and Acts that he referred to.  We agree that those regulations and Acts are the ones to be considered if the prescribed disease is in existence.  As the disease was not a prescribed disease until 13 September 1993, then the appellant cannot become entitled to disablement benefit because he suffers from that prescribed disease before that date.  We, therefore, agree with the adjudication officer’s submission and uphold his/her decision.”
19.	Those reasons are of course short.  Moreover the reasons are, I think, not necessarily conclusive because the claimant in fact made a claim for disablement benefit for prescribed disease D12 on 14 October 1993 (approximately one month after the amending regulations came into force on 13 September 1993).  His contention therefore is that by that time the disease had become a prescribed disease and he was merely asking for back-dating of any award.  Nevertheless, I bear in mind that the tribunal did not have the same degree of assistance that I have had by written and oral submissions and I cannot consider that their reasons or findings of fact were in the circumstances defective.  I therefore uphold their decision, but for the additional reasons which I have given in this decision.  Even if I had set their decision aside for want of adequate reasons, my decision would have been the same as theirs.

Date: 8 June 1995	  (signed)  Mr. M. J. Goodman
									     Commissioner