PLH                                                                               Commissioner's File: CI 4432/01

SOCIAL SECURITY ACTS 1992-1998
	
APPEAL FROM DECISION OF APPEAL TRIBUNAL
ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Claim for:	Reduced Earnings Allowance
Appeal Tribunal:  	Stoke on Trent
Tribunal Case Ref:  	U/04/050/2000/00767
Tribunal date:	3 May 2001
Reasons issued:	1 August 2001

[ORAL HEARING]

This appeal by the Secretary of State succeeds.  The tribunal at Stoke on Trent on 3 May 2001 was in my judgment plainly wrong in law in holding special hardship allowance payable to the claimant for the period 1 January 1972 to 30 September 1986 on the claim for reduced earnings allowance he only made on 11 November 1993, when he had never had or been awarded any disablement benefit for any period before 1 October 1986 and only made a claim for that benefit for the first time on 19 October 1992.  I set the tribunal’s decision aside and substitute my own decision that the claimant was not entitled to any special hardship allowance in those circumstances.

I held an oral hearing of this appeal which had been requested on behalf of the claimant.  Jeremy Heath of the solicitor’s office, Department of Work and Pensions, appeared for the Secretary of State as the appellant, and the claimant appeared and addressed me himself as the respondent to the appeal.  He had earlier had the benefit of legal representation, but his representative had to withdraw because of funding and other difficulties before the hearing; though I was helpfully provided with written submissions on the claimant’s behalf all of which I have taken into account.

The claimant is a man now aged 54 who in 1972-73 was doing the tough and dangerous job of a roughneck on North Sea gas drilling platforms.  In the course of this work he was exposed to oil-based mud and other harmful chemicals, which caused long-term damage to his skin.  There is no doubt that he meets the medical diagnostic conditions for Prescribed Disease No. D5 non infective dermatitis, with a disability assessed as 8% from January 1972 to the end of 1991, and currently 14% for the calendar year 1992.  It is not disputed that this was due to the nature of his former employment.  As he told me, it was a time of great pressure to get the gas ashore and there was little in the way of effective protection for him and his fellow workers: they “just got covered in the stuff”.

Being a self reliant man and unaware that he might be able to claim benefit for this skin condition at the time, the claimant did not do so for many years; and it is common ground that his first claim for disablement benefit for this cause was not made until 19 October 1992.  Even at that stage he did not immediately claim the additional benefit for loss of earning capacity as a result of his disability (by that time called reduced earnings allowance), for which a separate claim has always had to be made:  that claim was not made until 11 November 1993.

That claim, asking for reduced earnings allowance with effect from 1973, was accepted by the Secretary of State as regards the period from 1 January 1973 to 30 September 1986 as being a claim for “special hardship allowance” which was what the additional benefit for loss of earning capacity was at that time called.  The nature of the special hardship allowance was however slightly different from that of the reduced earnings allowance which replaced it: under section 60 Social Security Act 1975 it was only ever payable as an increase in the amount of disablement benefit where that benefit was awarded to the claimant, though the addition had to be separately claimed.

The significance of that last point for the present case is that it also necessarily followed that if a claimant did not get any disablement benefit for the period in question, he could not get any special hardship allowance either: there was nothing to increase.   As noted in the previous decisions on this rather recondite area of the law to which my attention was drawn, this can have the effect that where a claim to reduced earnings allowance or special hardship allowance is only made many years after the period to which it relates, the claimant can no longer get any benefit for the earlier years, because intervening changes in the law have removed any chance of getting disablement benefit for disablements of less than 14% for industrial injuries or diseases suffered before 1 October 1986 unless that benefit had been claimed before (or shortly after) that date.

The claimant confirmed to me that he had had no award of disablement benefit for any period before 1 October 1986 under his claim of 19 October 1992, which appears to me indisputably correct.  There was no chance of getting disablement benefit, under the law in force at the date of his claim, for an 8% disablement for any period before 1 October 1986, because the former provision for disablement benefit in the form of what was called a “gratuity” for disablements of less than 14% was abolished from 1 October 1986. The ability to claim it retrospectively was only preserved in a very limited way, and even that transitional provision ceased to have effect on 12 February 1990: that is well before any claim was made by the claimant in this case.

Accordingly, in my judgment, there was never any hope of the claimant being able to qualify for disablement benefit, or any increase of it by way of special hardship allowance, for any period before 1 October 1986 on the claims he made on 19 October 1992 and 11 November 1993.  Thus the original decision of the Secretary of State rejecting the claim for that period was correct and the tribunal was wrong to reverse it.

The contention on behalf of the claimant which attracted the tribunal (sitting, I note, without the assistance of any representative for the Secretary of State, who might have been able to point out the error and save the costs of an appeal) was that the claimant would have been able to establish entitlement to a disablement gratuity, and thus to special hardship allowance under the law in force before 1 October 1986, if a claim for those benefits had then been made and considered by the adjudicating authorities.  Consequently it was submitted, by reference in particular to Chief Adjudication Officer v. Maguire [1999] 1 WLR 1778, that because of the peculiarities of the law about making claims and establishing entitlement to benefit at that time, an “accrued right” to disablement benefit and thus special hardship allowance had existed which the subsequent changes in the law should not be construed as having taken away from him, by virtue of section 16 Interpretation Act 1978.

That line of argument is not in my judgment open to the claimant in this case because, unlike in the case of Maguire, there was no underlying entitlement to disablement benefit established before the possibility of claiming that benefit for the period before 1 October 1986 was finally extinguished on 12 February 1990.  It has to follow that, as held in cases CI 555/93 (applying the Tribunal of Commissioners’ reported decision in R(I)1/90 that there was no such accrued right to unclaimed disablement gratuity after 30 September 1986) and CSI 785/00, special hardship allowance was not claimable at all, and the tribunal should have so held.

For those reasons, the Secretary of State’s appeal is allowed and the original decision rejecting the special hardship allowance part of the claim reinstated.  This does not affect the reduced earnings allowance for the later period.
(Signed)
P L Howell
Commissioner
5 July 2002