[1995] UKSSCSC CI_420_1994 (02 August 1995)

CI/420/1994
The Office of Social Security and Child Support Commissioners
 
Commissioner's File: CI/420/1994
SOCIAL SECURITY ACTS 1975 TO 1990 
SOCIAL SECURITY ADMINISTRATION ACT 1992
CLAIM FOR DISABLEMENT BENEFIT 
DECISION OF THE SOCIAL SECURITY COMMISSIONER 
 
1. I allow the claimant's appeal. The decision of the Sunderland social security appeal tribunal dated 10 March 1994 is erroneous in point of law. I set that decision aside and refer the case to a differently constituted appeal tribunal for determination. 
2. The claimant had apparently been entitled to disablement pension since 25 November 1981 (although I note that the claim in respect of occupational deafness was made on 5 July 1976 so I would expect there to have been an earlier award). Disablement was apparently assessed at 22% from 25 November 1981 to 5 July 1986 and at 32% from 6 July 1986 for life. On 7 May 1992 the Benefits Agency received a "claim for industrial disablement benefit for a prescribed disease" in respect of Prescribed Disease D4. On 27 September 1993 the Newcastle medical appeal tribunal decided that the claimant had been suffering from Prescribed Disease D4 since 1 January 1960 and assessed disablement at 3% from 1 January 1960 for life. In the light of that decision, an adjudication officer reviewed the award of disablement benefit from 6 July 1966 and revised it with effect from 12 February 1992 on the ground that the medical appeal tribunal's decision was a material change of circumstances. The result of aggregating the assessments of disablement and rounding them in accordance with regulations 15A and 15B of the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985 was that the claimant was to be treated as having an assessment of disablement of 40% which resulted in an increase in the amount of disablement pension payable. 12 February 1992 was the first Wednesday after the date three months before the "claim" in respect of Prescribed Disease D4 was received by the Benefits Agency and the adjudication officer considered that that was the appropriate date from which the award should be revised because the "claim" was late and he or she took the view that the claimant did not have "good cause" for the delay. Reference was made to regulation 19 of, and Schedule 4 to, the Social Security (Claims and Payments) Regulations 1987. The claimant appealed against the decision not to award an increased amount of disablement pension in respect of any period before 12 February 1992 but his appeal was dismissed. He now appeals against the tribunal's decision with my leave. 
3. The claimant's representative submits that the tribunal erred in their approach to the question of "good cause". The adjudication officer resists the appeal. In my view, if the question of "good cause" arose at all the tribunal's approach cannot be faulted. They considered the reasonableness of the claimant's actions or failure to act (R(S) 2/63) and, in particular, whether he had acted, or failed to act, on a belief that was reasonably held (R(S) 3/79). It was common ground that the claimant had made several claims in respect of industrial diseases and so knew in general terms that disablement benefit was payable in respect of such diseases, but the tribunal accepted that the claimant did not know of the existence of Prescribed Disease D4. However, they considered that the claimant's symptoms were of some severity and found that "any other reasonable person of the claimant's experience, age and background would have wondered whether the symptoms from which he was suffering were work related and whether or not there were any means of making a claim in respect thereof". Perhaps not all tribunals would have made that finding. However, it was a finding they were entitled to make and, in the light of that finding, they were right to conclude that the claimant did not have good cause for his delay in claiming. There is a lot of force in the submissions made on behalf of the claimant, but I cannot say that the tribunal erred in law in reaching the conclusion they did on the question of "good cause". I accept that this is not a case of a claimant deliberately failing to claim when he knew he could make a claim but, on the tribunal's approach, it was a case of a claimant who ought reasonably to have suspected that he could claim and so ought to have made the appropriate enquiries. It is not only those who deliberately fail to claim who are unable to show good cause for delay.
4. However, there arises the question whether this was really a case where there had been a late claim. When I granted leave to appeal, I made the following comment:- 
"Where a person in receipt of disablement benefit in respect of one prescribed disease alleges that he is also suffering from another prescribed disease, he is obliged under current practice to complete a "claim" form in respect of the second disease. Is he really making a new claim or is he asking for his existing award of disablement benefit to be reviewed? If he is asking for a review, regulation 19 of the Social Security (Claims and Payments) Regulations 1987 is irrelevant. Instead, regulation 66 of the Social Security (Adjudication) Regulations 1986 applies. Under regulation 66, the reasonableness of the claimant's delay in making his application may not be the only material consideration." 
The adjudication officer now concerned with the case submits:- 
"7 Regulation 15A of the Prescribed Diseases Regulations provides for the aggregation of percentages of disablement. It is my submission that this regulation suggests that separate claims are required in respect of each "relevant disease". If it was simply a case of reviewing an existing award following findings on another PD, I submit that there would be no need for a specific provision covering aggregation. 
8 Regulation 66(2) of the Adjudication Regulations provides that a review under paragraph (1) shall not permit benefit to become payable from a date earlier than the earliest date from which it could have been payable had it been awarded in the decision being reviewed. I submit that, where a second PD commenced before the first award it would suggest that the period before the first award must be disregarded if the application for a second PD is treated as a review rather than a claim. This being the case, the claimant could be disadvantaged by treating a second or subsequent application for a PD as a review. It is my submission that the tribunal were correct in considering the application for PD D4 as a claim for benefit."
The claimant has not made any reference to my comment. 
5. I do not accept paragraph 7 of the adjudication officer's submission. Regulation 15A(1) and (2) of the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985 provides:- 
"(1) After the extent of an employed earners disablement resulting from the relevant disease has been determined, the adjudication officer shall add to the percentage of that disablement the assessed percentage of any present disablement of his resulting from - 
(a) any accident after 4 July 1948 arising out of and in the course of his employment, being employed earner's employment, or 
(b) any other relevant disease due to the nature of that employment and developed after 4 July 1948, 
and in respect of which a disablement gratuity was not paid to him under the Act after a final assessment of disablement. 
(2) In determining the extent of the employed earner's disablement for the purpose of section 57 of the Act there shall be added to the percentage of disablement resulting from any relevant accident the assessed percentage of any present disablement of his resulting from any disease or injury prescribed for the purposes of Chapter V of Part II of the Act, which was both due to the nature of the employment and developed after 4 July 1948, and in respect of which a disablement gratuity was not paid to him under the Act after a final assessment of his disablement." 
That is in terms similar to, and serves the same purpose as, section 103(2) of the Social Security Contributions and Benefits Act 1992 (formerly section 57(1A) of the Social Security Act 1975) which provides for the aggregation of assessments of disablement in respect of two or more industrial accidents. It seems to me that the requirement that assessments of disablement be aggregated makes it abundantly clear that there can only be one award of disablement pension in respect of any period and that that single award will take account of all disablement arising from industrial accidents and prescribed diseases. It must follow that the award must be reviewed each time an assessment of disablement is made in respect of any further industrial accident or prescribed disease. If there were no aggregation then separate claims would be required in respect of each accident or disease and there would be separate awards. That was the position before 1 October 1986 which was the date when regulations 15A and 15B of the 1985 Regulations were inserted by regulation 3 of the Social Security (Industrial Injuries and Diseases) Miscellaneous Provisions Regulations 1986 and section 57 of the 1975 Act was amended by the insertion of subsections (lA) and (lB). However, in my view, the amendments stopped the making of separate awards. The amendments to section 57 of the 1975 Act had retrospective effect (see CI/509/94) and it seems to me that the amendments wrought by regulation 3 of the 1986 Regulations must also have retrospective effect, save in those cases where regulation 13 of those Regulations (which has now been revoked) applied. 
6. I accept the point made in paragraph 8 of the adjudication officer's submission to the extent that I agree that a further claim for disablement pension in respect of a prescribed disease must be made in respect of any period not already covered by a decision in respect of disablement pension. It follows that, in the present case, the "claim" made on 7 May 1992 should have been treated both as a claim and as an application for review of all decisions in respect of disablement pension for periods covered by the assessment of disablement made by the medical appeal tribunal. It also follows that the practice of requiring claimants to complete claim forms in respect of each disease is justified even though it may be necessary also to treat the claims as applications for review. 
7. The practical difference between a claim and an application for review is not enormous but it is nevertheless significant. Regulation 19(1) of, and Schedule 4 to, the Social Security (Claims and Payments) Regulations 1981 prescribe times for claiming benefit which, in the case of disablement pension, is three months. Regulation 19(2) provides:- 
"Where the claimant proves that there was good cause, throughout the period from the expiry of the prescribed time for making the claim, for the failure to claim a benefit specified in column (1) of Schedule 4 before the date on which the claim was made the prescribed time shall . be extended to the date on which the claim is made." 
Regulation 66(1) of the Social Security (Adjudication) Regulations 1986 provides:- 
"(1) Except in a case to which regulation 64A(2) or (3) or regulation 64B applies where on a review a decision of an adjudication officer, an appeal tribunal or a Commissioner is revised, so as to make industrial injuries benefit payable or to increase the rate of such benefit, the decision on review shall, subject to paragraph (2), have effect as from the date of the application for the review or from such earlier date as appears to the person or tribunal determining the review to be reasonable in the circumstances." 
Regulation 19(2) of the 1987 Regulations (as interpreted by Commissioners) requires an adjudication officer or tribunal to have regard only to the reasonableness of the claimant's delay. Regulation 66 of the 1986 is not so narrowly drafted. Nevertheless, there should be some consistency in the application of regulation 66(1) and the reasonableness of the applicant's delay will usually be the main factor to be considered. I suggest that it would generally be reasonable for payment to be made for such period as it would have been made had the application for a review been a claim (i.e. three months before the date of the application for review and such further period during which the claimant can show continuous good cause for failing to apply earlier). Equally, I suggest that it will generally not be reasonable for payment to be made for any earlier period. However, the phrase "reasonable in all the circumstances" is as broad as can be and, as the legislature is to be presumed deliberately to have not used any more precise formula, adjudication officers and tribunals are entitled to have regard to matters other than the reasonableness of the claimant's delay in applying for the review and to depart from the approach that I have suggested, provided that they give reasons for doing so. 
8. The tribunal in the present case were considering the wrong legislation and so asked themselves the wrong question. Not only must I set aside their decision but I must also refer the case to a different tribunal rather than substituting a decision based simply on the tribunal's finding that the claimant did not have good cause for delay in making his claim. The tribunal to whom I refer the case are not bound to reach the same conclusion as the last tribunal as to the reasonableness of the claimant's failure to claim, or apply for a review, earlier than he did. They must also consider whether there are any other matters which are relevant to the reasonableness of awarding disablement pension in respect of a period before 12 February 1992. The adjudication officer should make a short submission to the tribunal explaining what happened to the claim in respect of occupational deafness made on 5 July 1976 so that the tribunal have before them all relevant assessments of disablement. I also suggest that the commencement date of the period of assessment from 1981 to 1986 should be checked. 25 November 1981 was the date from which the rate of payment of disablement pension would have increased. I would expect a second period of assessment of disablement in respect of occupational deafness to start on the fifth anniversary of the claim in respect of that prescribed disease. 
 
(Signed) M. Rowland 
Commissioner 
(Date) 2 August 1995