CI/1052/2001

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	I dismiss the claimant’s appeal against the decision of the Leeds appeal tribunal dated 20 December 2001, whereby they held that he was not entitled to reduced earnings allowance in respect of prescribed disease A11.

REASONS

2.	This is one of two appeals arising out of separate decisions made by Leeds appeal tribunal on the same day.  My decision on the other appeal is given on file CI/1547/2001.

3.	The claimant at one time asked for an oral hearing of this appeal but he has now stated that he does not want such a hearing.  In any event, he has not advanced any argument of law that might usefully be developed at an oral hearing.  The case raises a short point of law, which I am satisfied can properly be determined without a hearing.

4.	Despite being disabled by poor hearing, the claimant has gained many qualifications over the years.  From the mid-1970s, he worked as a skilled decorative and industrial decorator for the civil engineering department of British Railways and then for a private contractor engaged in railway civil engineering.  He retired through disablement in 1995, as a result of an industrial injury to his knee incurred in 1991.  During his employment he appears to have had a number of industrial accidents.  Most importantly for the present case, he injured his back on 13 September 1985.  In 1995, he claimed reduced earnings allowance in respect of that accident and it was awarded at the maximum rate from 3 March 1995.

5.	In 1996, the claimant claimed disablement benefit in respect of vibration white finger (prescribed disease A11).  He was found to have suffered from the disease since 1 January 1988 and the resulting disablement was assessed at 3% disabled from 15 April 1988 for life.  (This assessment is in issue in CI/1547/01.)  On 27 March 2000, he claimed reduced earnings allowance in respect of that prescribed disease.  His claim was disallowed on the ground that he had already been awarded reduced earnings allowance in respect of the same occupation and that it was not possible for there to be two awards in respect of the same occupation.  The tribunal dismissed the claimant’s appeal.

6.	By paragraph 11(1)(b) of Schedule 7 to the Social Security Contributions and Benefits Act 1992, it is a condition of a person’s entitlement to reduced earnings allowance that – 

“as a result of the relevant loss of faculty, he is either –

(i)	incapable and likely to remain permanently incapable, of following his regular occupation; and

(ii)	incapable of following employment of an equivalent standard in his case,

or is, and has at all times since the end of the period of 90 days referred to in section 103(6) above been, incapable of following that occupation or any such employment”.

By paragraph 11(10), the rate of reduced earnings allowance is determined by comparing the claimant’s probable earnings in suitable alternative employment with what his earnings would have been in his former regular occupation, subject to a maximum, which is currently £45.16 per week.  Reduced earnings allowance is therefore concerned with loss of earnings.

7.	The claimant asserts that a person may be entitled to more than one award of reduced earnings allowance.  The Court of Appeal has recently confirmed that that is so (Secretary of State for Social Security v. Hagan (July 30, 2001)) and has gone further and held that the maximum amount may be awarded each time.  However, the Court of Appeal was concerned with a case where the claimant claimed to have lost earnings due to becoming incapable of following one occupation as a result of one accident and then to have lost further earnings due to becoming incapable of following another regular occupation as a result of another accident.  In the present case, it is the Secretary of State’s case that the claimant’s regular occupation at the onset of his vibration white finger was the same as his regular occupation at the time of his 1985 accident.

8.	For the purposes of reduced earnings allowance, a person’s regular occupation is his occupation at the date of the accident or the date of onset of the disease.  In this case, the relevant occupation for the purposes of the claim for reduced earnings allowance made in respect of the claimant’s back injury was his occupation on 13 September 1985.  The evidence is that he was off work for seven weeks following that accident and that he then went back to the same occupation at the same rate of pay.  He tells me, and I accept, that he did less overtime, but that appears to be because he found the work more difficult and preferred to work overtime only when asked, rather than being on a regular rota.  In those circumstances, it seems to me that his regular post-accident occupation was the same as his regular pre-accident occupation (see paragraph 12 of C.I. 443/50 (K.L.), a decision of a Tribunal of Commissioners).  He was still in that occupation on 1 January 1988, when he developed vibration white finger, and he remained in that occupation thereafter.  I therefore accept the Secretary of State’s submission that the claimant’s regular occupation in respect of the 1985 accident was the same as his regular occupation in respect of the vibration white finger.

9.	It was only much later that the claimant became incapable of following that occupation.  That was not a bar to him being paid reduced earnings allowance, because a person eligible under paragraph 11(1)(b)(i) and (ii) need not have been incapable of following his regular occupation in the past.  However, in R(I) 2/56, the Commissioner, considering the similar provision in section 14 of the National Insurance (Industrial Injuries) Act 1946, said that the language of the section “seems to me clearly to indicate the intention that for one loss of capacity to follow his regular occupation a man is entitled to only one payment in respect of the same period.”  It may well be that the accident of 1985 and the vibration white finger both had a part to play in the claimant’s incapacity for following the regular occupation he had had in the period from 1985 to 1988.  However, only one award of reduced earnings allowance, which might equally well have been made in respect of either the 1985 accident or the vibration white finger, may be made.  As an award had already been made at the maximum rate in respect of the 1985 accident, the tribunal’s decision in respect of the vibration white finger was not erroneous in point of law.

10.	I have some sympathy for the claimant because it does seem unfair that a person should be entitled to more benefit for a number of relatively small losses of earnings, rather than for one big loss of earnings, despite what the Court of Appeal said in Hagan about the justification being the repeated disruption in a person’s life.  However, I must apply the law as it stands. 

(signed)	M. ROWLAND
Commissioner
 22 February 2002