[2004] UKSSCSC CI_3463_2003 (12 July 2004)

PLH                                                                            Commissioner's File:  CI 3463/03

	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: 	Chesterfield 
Tribunal Case Ref:  U/42/031/2001/01730
Tribunal date:	20 June 2002
Reasons issued:	29 April 2003

     1.     	This appeal by the claimant succeeds, as the decision of the Chesterfield appeal tribunal sitting on 20 June 2002 is rightly conceded by the Secretary of State to have been erroneous in law in that they wrongly considered themselves bound by a previous departmental decision to determine that his vibration white finger had a date of onset of 28 April 2000, even though they found he actually got the disease a good deal earlier.  
     2.     	The claimant is a man now aged 40 who formerly worked as a miner, industrial disease A11 vibration white finger being accepted as prescribed in relation to him and his former employment.  This appeal relates to a claim for industrial disablement benefit he made for that disease on 17 January 2001, which the Secretary of State refused on the basis of a medical examination report giving the opinion that he did not have the disease at all.  On appeal the tribunal which included a medical expert member reversed that finding after hearing full evidence and carrying out their own medical examination: they diagnosed the claimant as suffering from the disease, and found as a fact that “by 1988 the whiteness had extended to the 'second knuckle' (i.e. affecting the distal and middle phalanges”, which is the degree of blanching necessary to constitute the disease as prescribed: page 87 paragraph 3.  
     3.     	Despite that finding, the tribunal took the view they were unable to give full effect to it in their own decision.  That was because they accepted a submission by the Secretary of State that they were not able to determine any “date of onset” of the claimant's disease for the purposes of the statutory scheme before 28 April 2000, because of the existence of a departmental decision on a previous claim, given on 27 April 2000, which like the later one had rejected the claim on the ground that he did not have the disease.  For reasons which do not now need to be gone into, no appeal had been pursued against that earlier rejection and rather than an attempt to reopen it out of time, a fresh claim had been launched instead.  
     4.     	There is no doubt that the earlier rejection had been given under the decisionmaking and appeal provisions of the Social Security Act 1998 which so far as disease claims are concerned were different in important respects from those previously in force from 1948.  This case was deferred to await the result of another test case where I had to consider a similar question of whether a tribunal which diagnosed the presence of a prescribed disease was right to hold itself limited as to the “date of onset” it could determine by the existence of an earlier decision, also under the 1998 Act, refusing benefit on the ground that the claimant was not then accepted as having the disease.  
     5.     	Following the decision I reached in that case that it was not, Mr D Bell in his submission on behalf of the Secretary of State in this present appeal has helpfully confirmed that the Secretary of State accepts the principle, which must mean the decision of this tribunal has to be set aside as wrong.  I cannot summarise it better than he does in paragraphs 6-7 of the submission dated 18 May 2004 at pages 163-4:
“6.  The effects of finality for the purposes of section 17 of the SS Act 1998 was considered by the Commissioner in CI 5270/02.  In that case it was held that following the introduction of DMA, decisions on diagnosis were not freestanding but were a question of fact embodied in a decision of the Secretary of State under section 8(1) of the Act on entitlement to benefit.  In paragraph 17 the Commissioner stated “In the absence of such express provision, an earlier finding made under the 1998 Act machinery on such a question cannot fall within the modified statutory form of the principle of res judicata which now applies to social security decisions under section 17”.  
7.  The Secretary of State accepts the reasoning in decision CI 5270/02 and submits that provided no claim had been made under the previous legislation where section 60 of the SS Admin Act [1992] did provide for finality on the question of the date of onset, then that question [sc. the previous negative diagnosis] is a matter of fact and not final for the purposes of section 17 of the SS Act 1998.”
     6.     	I therefore set aside the decision of the tribunal as he suggests.  However rather than put the parties to the further expense and delay of another tribunal hearing as he submits should be the next step, it seems to me I can properly do as the claimant himself suggests in his reply observations dated 22 June 2004 at pages 165-6 and give the final decision in the case myself in view of the tribunal's underlying medical findings, which I do not understand to be disputed by either side.  It seems to me the claimant is quite right in saying “3% disability for life has previously been assessed and that the date of onset be the only issue in this case”.  Or rather, it is even narrower than that, because the tribunal as well as giving the diagnosis of the disease and the 3% assessment of the claimant's continuing disability from it, have also given us their own express finding that it was actually present in the prescribed degree of blanching from the start of 1988: the only issue remaining in the case being whether they were allowed to give effect to that finding in the “date of onset” they were able to determine.  They thought not, and it is now conceded they were.  
     7.     	In those circumstances I exercise the power in section 14(8)(a) Social Security Act 1998 to give instead the decision I am satisfied the tribunal ought to have given on their own findings, including the finding of fact as to the degree of blanching being experienced by the claimant by 1988: namely that he was at the date of the decision suffering from prescribed disease A11 or from a sequela of that disease and had been so suffering from 1 January 1988, with a loss of faculty identified as intermittent impairment of manual dexterity resulting in disablement from the prescribed disease;  and the extent of the disablement resulting from the loss of faculty being assessed at 3% for the period from the 91st day after 1 January 1988 for life.   
     8.     	That does not of itself entitle the claimant to any benefit on the claim of 17 January 2001 since it was a claim for disablement benefit and the only form of that benefit, disablement pension, is not payable for disablements assessed at less than 14%; but his 3% will be available for aggregation with any other disablement percentages he may have (now or in the future) and the separate claim he is recorded as having made for reduced earnings allowance after the tribunal will now need to be reconsidered as his date of onset is before the cut-off date of 1 October 1990: the departmental letter of 17 June 2003 on page 92 refers.  
					
(Signed)

P L Howell
Commissioner
12 July 2004