CI/5331/2002

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	I allow the claimant’s appeal.  I set aside the decision of the Newcastle-upon-Tyne appeal tribunal dated 26 September 2002 and I refer the case to a differently constituted appeal tribunal for determination.  Subject to any extension of time that may be granted by a tribunal chairman, both parties should submit any further evidence to the tribunal within six weeks of the date of this decision.

REASONS

2.	The claimant claimed disablement benefit in respect of prescribed disease A10 (occupational deafness) on 16 May 2002.  In his claim form, he listed five periods of employment, two as an underground transport worker in collieries, one as a strander for a firm of ropemakers, one as a welder in a shipyard and finally his work for a local authority as a “driver/loader and Scarab machine operator”.  In the light of that employment history, it is not surprising that he listed a large number of occupations relevant to occupational deafness that might have been prescribed in relation to him, but most of them referred to the first four of those periods of employment, which had all come to an end more than five years before the date of claim.  The claimant was not asked at that stage to provide details of the occupations in which he had worked beyond ticking boxes on the form corresponding to the various sub-paragraphs A10(a) to (w) in column 2 of Schedule 1 to the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985, listing occupations in respect of which occupational deafness is prescribed.  These include –

“any occupation involving …. (r) the use of, or work wholly or mainly in the immediate vicinity of, high pressure jets of water or a mixture of water and abrasive material in the water jetting industry (including work under water)”.

When asked by the Benefits Agency for information, the local authority that had been the claimant’s last employer simply ticked boxes to the effect that the claimant had not been employed by them in any of the prescribed occupations mentioned by the claimant.  It was only when the claim was rejected on the simple ground that the claimant had not worked in a prescribed occupation for the local authority that the claimant, when asking for the decision to be reconsidered, explained that he used a jet [sic] powered hose to clean the Scarab road-sweeping machine and that he “also worked on the graffiti squad which [sic] sometimes you could use the power jet hose up to 3-4 hours a day”.  This did not result in the decision being altered, the Secretary of State taking the view that “the claimant’s use of a high powered hose does not assist his claim as the use of high powered jets of water must be performed within the context of the water jetting industry (i.e., shot-blasting)”.  The claimant appealed and further evidence was obtained by the Benefits Agency from the local authority to the effect that the Scarab machines of the type used by the claimant were equipped with a pump producing water pressure at 1,740 psi and a lance from which a jet of water could be directed to clean signs, bus shelters and so on.  The lance pressure would be from 870 psi to 1,595 psi depending on the operation of the trigger.  In those circumstances, the primary submission made to the tribunal by the Secretary of State was that the jets of water used by the claimant were not “high pressure”, which he submitted meant at least 3,000 psi.  This prompted a further submission from the claimant, stating that he had worked on the graffiti squad “on numerous occasions in which you used jet power hose up to 2-3 [hours] per day” and that that work involved using a different vehicle from the Scarab.  A further statement explained that a generator produced a pressure of 3,050 psi and asserted that a Scarab produced a pressure of 5,000 psi.  At the hearing, the claimant’s contention was recorded by the chairman as being that “the hoses he used were of the same type and power as used by the water jetting industry”.  It is plain that the claimant conceded before the tribunal, as he conceded in his grounds of appeal against their decision, that he was not actually employed in the water-jetting industry.

3.	The tribunal found that, while employed by the local authority, “he occasionally used high pressure hoses to clean down vehicles and to remove graffiti” but they found that he did not work in the water-jetting industry.  Accordingly, they dismissed his appeal.  They made no finding as to whether the Secretary of State’s benchmark of 3,000 psi was correct or as to the pressure of the jets of water used by the claimant.  It was unnecessary for them to make such findings in the light of their finding that the claimant did not work in the water-jetting industry.  

4.	I granted leave to appeal on the ground that, if work for a local authority can amount to forestry, as was decided in Secretary of State for Social Security v. Davis [2001] EWCA Civ 105 (reported as R(I) 2/01), it seemed to me to be arguable that work for a local authority could amount to work in the water-jetting industry and that the tribunal should not have accepted the claimant’s concession that he did not work in that industry when it was inconsistent with his contention as to the nature of the work he did perform.

5.	At first the Secretary of State submitted that the tribunal had erred in law merely because, as I had said, it was arguable that work for a local authority could amount to work in the water-jetting industry and that the tribunal should not have accepted the claimant’s concession.  However, there is a difference between the standard required for granting leave to appeal and the standard required for finding a tribunal to have erred in law.  A Commissioner will grant leave to appeal on the basis that it is arguable that a tribunal has erred in law but he or she can allow an appeal only if satisfied that the tribunal did actually err in law.  Therefore, if this appeal is to be allowed, it is not enough for me to be satisfied that it is arguable that the tribunal ought not to have accepted the claimant’s concession. I must be satisfied that they were actually wrong to accept it.  The Secretary of State now argues that the tribunal were not wrong to accept the concession because, at the time of their decision, the leading cases in this field were CI/11874/96, in which the Mr Commissioner Henty had agreed with a tribunal who had held that a person was only to be regarded as employed in the water-jetting industry “when the sole purpose of the industry is work involving water jetting”, and CI/12027/96, in which Mr Commissioner Morcom had held, for possibly similar reasons although his reasoning is a little obscure, that a person using high pressure jets of water to clean his employers’ poultry factory was employed in the poultry industry and not the water-jetting industry. The Secretary of State submits that, even though Mr Commissioner Williams has since held, in CI/2668/02, that work for a local authority can be work in the water-jetting industry, it was reasonable for the tribunal to accept the claimant’s concession, given the general understanding of the law at the time, and therefore they did not err in law.  

6.	I do not accept the Secretary of State’s submission.  A tribunal may be found to have erred in law even though they may have been acting in accordance with decisions of Commissioners and courts that were then binding on them.  That is because a later decision interpreting the law is regarded as stating the law as it always has been.  Plainly, in such circumstances, the tribunal cannot be said to have acted unreasonably in following the binding decisions, but they may nonetheless be held to have erred in law.

7.	Of course, because they accepted the claimant’s concession, which might be regarded as a concession of law or a concession of fact or both, it was unnecessary for the tribunal in this case to make clear their understanding of the law and therefore I cannot be sure that they did follow CI/11874/96 and CI/12027/96, particularly as those cases were not cited to them.  If they were entitled to accept the concession, they did not err in not making their understanding of the law clear and in not making relevant findings of fact.  The whole point of accepting a concession is that it relieves the tribunal of the duty to investigate the point being conceded.  However, in this jurisdiction, a tribunal errs if they accept a concession that is wrong in law and that includes a concession that purports to be a concession of fact but that is inconsistent with the evidence before them.  This is so even if the party making the concession is represented by solicitors and counsel.  Equally, a tribunal is generally entitled to accept a concession of fact that appears consistent with the evidence before them.  The more difficult case is the one where there is a concession of fact on an issue that has not been investigated by the Secretary of State so that further evidence would be required by the tribunal if they were to determine the issue without the concession.  In such a case, a tribunal must satisfy themselves that the concession is not being made under any misapprehension as to what the legal issue actually is.  They may be satisfied simply by the terms in which the concession is made or by the fact that the claimant has an apparently competent representative with relevant expertise, but where a claimant is unrepresented or the point is particularly obscure, the tribunal may need to investigate the basis upon which the concession is being made before accepting it, if they are to avoid accepting a concession that is wrong in law.  If they fail to carry out such an investigation, their decision is liable to be held to be erroneous in point of law

8.	In the present case, the question whether the evidence before the tribunal was inconsistent with, or at least did not wholly support, the claimant’s concession that he had not worked in the water-jetting industry requires consideration first to be given to the meaning of “the water jetting industry”.  The Secretary of State accepts – at least implicitly – that, in the light of Davis and CI/2668/2002, the reasoning in CI/11874/96 should no longer be followed.  In Davis, a local authority employee regularly used chain saws for pruning and felling trees in parks.  He subsequently made a claim for disablement benefit in respect of prescribed disease A11 (vibration white finger).  The Court of Appeal agreed with Mr Commissioner Levenson that the tribunal had been entitled to regard the use of the chain saws as being “in forestry”, holding that the term referred to the management of growing timber rather than work in a forest or the commercial production of growing timber.  In CI/2668/02, Mr Commissioner Williams, having considered Davis, having referred to the difficulty of construing the word “industry” in the context of a service industry rather than a manufacturing industry and having referred to a report of the Industrial Injuries Advisory Committee, concluded that a claimant employed to use high pressure jets of water to clean his employers’ premises could be regarded as using jets of water in the water jetting industry notwithstanding that his employers were butchers and bacon curers.  The Secretary of State accepts, rightly in my view, that it follows that a person may be regarded as using jets of water in the water-jetting industry, notwithstanding that he is employed by a local authority.

9.	The Secretary of State, however, submits that, “although water jetting need not be the main activity of the employer, it does have to be the sole or main process used in the relevant employment” if it to be established that the work is in the water-jetting industry.  He relies on paragraph 25 of CI/2668/02.  Plainly the words “in the water jetting industry” are to be given a meaning capable of qualifying the simple use of jets of water.  Otherwise they would be mere surplusage.

10.	In Davis, Rix LJ, with whom the other members of the Court of Appeal agreed, said:

“27.	The fact that the statutory phrase has to be taken as a whole, namely “any occupation involving  …  the use of hand‑held chain saws in forestry” suggests that the words “in forestry” mean no more than “in or in connection with forestry”, and are intended to express a sense of scale about the occupation involved. The words “occupation involving” are very wide words indeed and raise, of course, the possibility that the occupation may involve the use of hand‑held chain saws in only an incidental way. By putting in the words “in forestry”, in my judgment the legislators intended to exclude the use of hand‑held chain saws in only an incidental way, as might occur in occupations which had nothing to do with forestry (as for instance, might very frequently occur in the case of those who are in occupation merely as gardeners and make some occasional use of a hand‑held chain saw).”

11.	In CI/2668/02, Mr Commissioner Williams drew heavily upon a report of the Industrial Injuries Advisory Committee, Cm 5672, entitled Occupational Deafness, published in November 2002.  He observed that, in respect of chain saws, the Committee had noted Davis and had advised that the legislation should be amended to refer simply to “regular use of chain saws”, without any reference to forestry.  In relation to the use of jets of water, the Committee said:

“97. 	The current prescription refers to the ‘water-jetting industry’ and it has become apparent that this phrase has caused some difficulties for decision-makers.  Water-jetting can be carried out in a variety of ways and contexts and at very different pressures some of which would certainly pose a noise hazard but others would not.  There is a need to clarify that the Council intended to include only those water-jetting processes using high pressure on a commercial basis and where an employee would be put at regular and frequent risk of exposure to high levels of noise likely to damage hearing.

“98.	Evidence was taken from HSE experts on the level of pressure that would be likely to be hazardous to hearing and produce disablement.  We understand that such pressures are likely to be substantially and regularly reached in processes routinely performed by specialist operators. Accordingly, we recommend that water-jetting operations undertaken at pressures above 10,000 psi should be prescribed within the benefit scheme, and that the current reference to ‘industry’ should be omitted from the prescription.”

Mr Commissioner Williams said that the recommended terms of prescription in Appendix 4 to the report did not actually follow this recommendation but I would respectfully suggest that he misunderstood the limited purpose of appendix 4 which, despite its heading, recommended only a regrouping of the prescribed occupations (see paragraphs 105 and 136 of the report) rather than changes to their terms (for which see paragraph 132).  He then said:

“25.	I must now apply the concerns of the IIAC to the wording of sub-paragraph (r) in the context of the principles set out in Davis.  I conclude that references to “the water jetting industry” are references to economic activities and processes involving the continuing or at least regular use of high pressure water jets.  In other words, the phrase “in the water jetting industry” indicates that it is not enough that high pressure water jets be used as a part of a business activity.  Water jetting must be the sole or main process used in the relevant employment, and the use of water jets must be continuing or at least regular through a working day.”

Mr Commissioner Williams found that the claimant in the case before him had been using jets of water in the water-jetting industry.  It is unnecessary for me to express any view as to the correctness of the approach he took in the context of that case, but I do not consider that the test he formulated can be regarded as a universal test.

12.	Firstly, it goes further than the Court of Appeal found it necessary to go in Davis.  I am not sure that, in excluding incidental use of the material tool, Rix LJ intended to imply that any regularity of use by the individual employee was required and he certainly did not say that the use needed to be “at least regular through a working day”.  In referring to “scale”, it seems to me that Rix LJ was referring to the scale of the activity undertaken by the authority rather than the amount of work done by the particular employee.  I take that merely to have the effect that “industry” in paragraph A10(r) is to be understood as “corporate activity”, rather than necessarily as “commercial activity”.  Thus, water-jetting must be identifiable as an activity of the authority rather than just something the claimant does incidental to employment for the purpose of some other activity.  Secondly, on the facts of the present case, although not on the facts of the case before him, Mr Commissioner Williams’ approach appears inconsistent with the general approach of the Court of Appeal, which was to ensure that, so far as permissible, claimants essentially employed in the same occupation should not be treated differently merely because of the nature of their employers’ businesses.  Paragraph A10(r) plainly draws a distinction between those who actually use jets of water, where such use is not required to be “continuing or at least regular through a working day” and those who do not actually use jets of water, whose work must be “wholly or mainly” in the vicinity of the jets of water.  Mr Commissioner Williams’ test requires a greater amount of use of jets of water by those people whose employers are not primarily in the business of water-jetting than by those whose employers are engaged only in the water-jetting industry.  Thirdly, I have reservations about Mr Commissioner Williams’ use of the report of the Industrial Injuries Advisory Committee.  It is permissible to rely on such a report as an aid to construction of legislation that has been enacted to implement a recommendation in the report.  However, in this instance, the relevant recommendations of the Committee have not yet led to legislation and the Committee conceded that the current legislation needed clarifying and amending to achieve the effect they believed had been intended.  I do not consider the report can properly be relied upon to justify taking any more stringent approach to paragraph A10(r) as it currently stands than that suggested by Court of Appeal in relation to paragraph A11(a).

13.	It seems to me that the application of the Court of Appeal’s approach in the case of a local authority employee requires merely that the local authority have been engaged in an activity equivalent to that in the relevant commercial industry and that the claimant have been using the relevant tools while working in pursuance of that activity.  A person is not to be regarded as working in, for instance, the water-jetting industry, if his use of jets of water is incidental to employment for the purposes of some activity of the local authority that is not equivalent to the activities of the commercial water-jetting industry.  The extent to which the claimant was employed in respect of the material activity of the local authority is only relevant to the question whether he was engaged in a prescribed occupation if it would be relevant in relation to similar private sector employment.  Part-time employees, or full-time employees engaged in a particular occupation on a part-time basis, are not generally excluded from the industrial diseases scheme.

14.	That is not to say that the relative infrequency with which high powered jets of water have been used by a particular claimant may not be relevant to other issues arising on a claim for disablement benefit.  Thus, not only may it be less likely that the claimant will have suffered sufficient hearing loss to be treated as suffering from occupational deafness as defined in paragraph A10, but the limited extent to which such jets were used may, particularly when taken with other factors in the claimant’s history, justify not attributing the deafness to the relevant occupation notwithstanding the presumption in regulation 4(5) of the 1985 Regulations.

15.	In the present case, it is clear that the claimant’s apparent concession that his use of tools was not in the water-jetting industry was inconsistent with his evidence.  It may well be that a driver employed by a local authority who cleans his or her vehicle with a jet of water will not generally be regarded as working in the water-jetting industry, even if the water pressure used is sufficiently high to make the point a live issue, but I can see no reason for not regarding the use of jets of water to clean walls and other surfaces to remove graffiti as work in the water-jetting industry.  Thus, in the present case, work on the graffiti squad and possibly some, or all, of the work using the Scarab’s lance can be regarded as being in the water-jetting industry.

16.	In those circumstances, I must allow this appeal and set aside the tribunal’s decision.  It seems to me that, at least prima facie, the claimant’s evidence suggested that he was working in the water-jetting industry, albeit employed by a local authority, and that he was therefore making his concession upon a misapprehension as to the law.  The tribunal erred in accepting the concession.

17.	At an earlier stage in these proceedings, both parties said they wished to obtain further evidence and suggested that, in the event of my allowing the appeal, I should refer this case to another tribunal.  The claimant has since submitted some further evidence and I am not sure that he still wishes to obtain yet more.  He has said that the information provided by the local authority to the Secretary of State was provided by someone who did not know precisely what work he did and that the Scarab manufacturer’s brochure was out-of-date, which looking at the registration number of the illustrated vehicle and the telephone dialling code of the sales department seems to be quite possible.  His case is that more modern Scarab machines were being used before he left the employment and also that he used other equipment as well.  However, the Secretary of State may still wish to obtain further evidence to rebut the claimant’s and, because the evidence before me as to the claimant’s use of pressurised jets of water and as to the pressure at which they operated is not as clear as it might be, I consider that this case should be referred to another tribunal.  It would be open to the Secretary of State to have the claimant referred to a medical adviser for an assessment of hearing loss before the hearing.  I do not agree with him that, as a matter of law, the question whether the claimant has worked in a prescribed occupation must necessarily be determined before what used to be known as the “diagnosis question”.  However, as the Secretary of State wishes the questions to be determined in the conventional order and there are arguments of convenience going both ways, I will not make a direction on this point.

18.	The tribunal to whom I refer the case should note that, although the Industrial Injuries Advisory Committee report cited above suggests that the use of jets of water at a pressure of 10,000 psi be required before an occupation is prescribed in respect of occupational deafness, the recommendation has not been acted on.  The Secretary of State, having had his attention drawn to that report, submits that his figure of 3,000 psi should continue to be sufficient to constitute “high pressure” for the purposes of paragraph A10(r).  Unless they are persuaded otherwise by further argument, the tribunal should accept that submission of the Secretary of State.

	(Signed)	MARK ROWLAND
		Commissioner
		21 August 2003