PLH                                                                               Commissioner's File: CI 2226/01

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

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Claim for:  		Disablement Benefit
Appeal Tribunal: 	Newcastle
Tribunal Case Ref:  	U/44/228/2001/01086
Tribunal date:		10 April 2001 
		Reasons issued:	10 May 2001

1.	The decision of the Newcastle tribunal sitting on 10 April 2001 was in my judgment correct on the main point of principle at issue in this case, namely that the tribunal had no jurisdiction to determine a date of onset for the claimant’s prescribed disease A11 vibration white finger earlier than that of an unappealed previous decision (given on an earlier claim) that he did not have the disease at all.  However as conceded in the submission of Mrs M Gratrex on behalf of the Secretary of State dated 12 February 2002 at pages 73-74 the tribunal appear to have misdirected themselves about the actual date of the previous decision and as a result their determination was incorrect by a few days.  On that ground only I allow the appeal, set aside their decision, and exercise the power in section 14(8)(a) Social Security Act 1998 to give the decision I am satisfied the tribunal should have given on the basis of their own findings on 10 April 2001, namely that the claimant was then suffering from prescribed disease A11 and had been so suffering from 8 October 1998, with a loss of faculty identified as cold hands and loss of manual dexterity resulting from the prescribed disease and a disablement from that loss of faculty assessed at 7% from 21 January 1999 for life.
2.	This is one of a number of cases deferred pending the decision of the Court of Appeal in case CI 6027/99 Whalley v Secretary of State [2003] EWCA Civ 166 on the jurisdiction of tribunals to determine the date of onset of a prescribed disease in disablement benefit and reduced earnings allowance cases, and the effect of the rule of finality in section 60 Social Security Administration Act 1992 where it had already been determined at an earlier date that the claimant did not have the disease at all.  Following that decision and the Legal Officer’s direction of 4 March 2003 the claimant’s solicitors have argued in further written submissions dated 11 March 2003 that this case can be distinguished on the facts and that it should be decided in favour of the claimant as this tribunal’s jurisdiction to determine the date of onset was unrestricted.  I have taken those submissions into account along with all the others previously made.  I have not however thought it necessary to ask for any further observations from the Secretary of State on the points raised before giving my decision.
3.	The facts in the present case were that the claimant made his claim for disablement benefit (the one that gave rise to the tribunal’s decision in his favour on the question of diagnosis) on 19 December 2000, claiming to have been suffering from prescribed disease A11 vibration white finger since 1 February 1986.  This was the second such claim he had made: the first, made in 1998, had been rejected on the basis of a medical examination report dated 5 October 1998 that there was no medical evidence that he was then, or had at any time since 5 July 1948 been, suffering from the disease.  That report was in evidence before the tribunal on 10 April 2001 (pages 38-41). The actual decision rejecting the first claim was not, though the tribunal were clearly aware it had been rejected, for want of a diagnosis down to 5 October 1998, as they expressly recorded that they were limited in the period for which they could find a loss of faculty from the same disease on the second claim.
4.	Their decision on that claim, reversing that of the Secretary of State and rejecting the findings of a further examination report after taking a further history and examining the claimant at the hearing, was in two parts. First, on diagnosis, the claimant was now suffering from disease A11 and had been so suffering since 5 October 1998.  Second, on disablement, he had a loss of faculty from that date and the resulting disablement was to be assessed (from the prescribed date of 91 days thereafter) at 7% for the remainder of his life.  In their statement of reasons (page 45) they recorded that the “onset date” for this purpose was limited to 5 October 1998 (“5.9.98” on page 45 is an obvious slip, corrected in the decision itself), in an obvious reference to what had happened on the previous claim to which their attention had been drawn.
5.	The claimant’s appeal is based on the argument that the tribunal were not in fact so limited, and they wrongly declined jurisdiction to determine an earlier date of onset of the claimant’s disease for the purposes of benefit entitlement on his new claim: in particular because his 7% assessment could entitle him to reduced earnings allowance, but only if the date of onset for this purpose can be taken back before October 1990 (para 11(1) sch 7 Social Security Contributions and Benefits Act 1992).  This depends on the single question of the effect in law of the earlier decision given on the first claim, a copy of which has now been produced at the Legal Officer’s direction, at pages 87-89: as can be seen, this was a decision of an adjudication officer on a reference of the question of diagnosis, and the determination given on 7 October 1998 was that the claimant was not and had not been suffering from prescribed disease A11 at any time from 1 April 1985 down to and including the decision itself on 7 October 1998.  That decision of the diagnosis question on the earlier claim was never appealed, or altered by way of administrative review or medical reconsideration.
6.	  That decision of the adjudication officer on 7 October 1998 that the claimant had not been suffering from prescribed disease A11 (vibration white finger) at any time from 5 July 1948 down to and including that date was thus a decision on diagnosis for the purposes of industrial injury benefits under section 108 Social Security Contributions and Benefits Act 1992, made under regulation 46(2) of the Social Security (Adjudication) Regulations 1995 SI No 1801 which was part of the special provisions in Part IV section A of those regulations for deciding diagnosis questions in prescribed disease cases.  The limitation in regulation 47(1) on the adjudication officer’s power to give such a decision never applied in this case since, in the absence of a diagnosis, no disablement question arose. 
7.	That decision thus became final as regards the question of diagnosis (i.e. whether the disease was present at all) over the whole period down to its own date, by virtue of sections 58 and 60(1) Social Security Administration Act 1992.  Since the diagnosis was the issue being decided and the adjudication officer had the authority under regulation 46(2) to decide it himself, I cannot accept the argument of the claimant’s solicitor that “the decision of the Adjudication Officer is not however a medical decision and therefore the principles of finality do not apply”.  On the contrary, they apply directly to a diagnosis decision duly made by whoever was authorised by the regulations to make it, which in this case did include the adjudication officer.
8.	The only relevant ways in which the question of any diagnosis of the same disease for the same claimant could be reopened as regards any part of that period once the decision of that question had become final would have been if: 
(1) the decision of 7 October 1998 had been appealed, or reviewed (e.g. for error or mistake of fact) under the 1992 Act while it was still in force; or
(2) the decision had been superseded by a further decision of the Secretary of State (e.g. for error or mistake of fact) under the Social Security Act 1998, applicable to industrial injury and disease cases from 5 July 1999.
However none of those things had happened in this case before the date of the tribunal.
9.	It must in my judgment follow that the tribunal dealing only with an appeal on the second claim were entirely correct in law, and did not misdirect themselves, in proceeding on the basis that their jurisdiction on that appeal was limited to the questions of diagnosis and (if appropriate) disablement for any period not already covered by a binding and final determination: in fact the period from 8th October 1998 onwards, though they mistakenly assumed it was from the 5th.  As now expressly confirmed by the Court of Appeal, a tribunal cannot decide that a claimant first began to suffer from a loss of faculty as a result of the prescribed disease during a period in relation to which it has already been decided that he did not suffer from the prescribed disease in question: Whalley supra, at para 43. 
10.	The appeal is thus allowed only to the extent of correcting the mistake of a few days over the dates, and my decision in paragraph 1 above substituted accordingly. 

(Signed)
P L Howell
Commissioner
8 April 2003