Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No. CI/73/2010

ADMINISTRATIVE APPEALS CHAMBER

 

1. This is an appeal by the Secretary of State, brought with my permission, against a decision of a First-tier Tribunal sitting at Sunderland on 22 July 2009. For the reasons set out below that decision was in my judgment wrong in law and I set it aside. In exercise of the power in s.12 of the Tribunals, Courts and Enforcement Act 2007 I re-make the Tribunal’s decision as follows:

 

The Claimant’s appeal against the decision of the Secretary of State made on 29 May 2008, as revised on 12 November 2008 so as to refuse the Claimant’s claim for reduced earnings allowance, is dismissed. The Claimant is not entitled to reduced earnings allowance because (subject to any revision or supersession of a decision made on or about 26 August 1998 that the Claimant was not suffering from vibration white finger) the date of onset of the Claimant’s vibration white finger was after 1 October 1990.

 

2. The Claimant is a man now aged 62. He worked as a miner underground, using power tools, from about 1962 to December 1990.

 

3. By a claim form signed on 4 July 1998 he claimed disablement benefit in respect of vibration white finger (VWF). He underwent a medical examination on 20 August 1998. His evidence recorded by the examining doctor, and signed by him, included the following:

 

“Around 1975 I experienced numbness and tingling sensation in the fingers. All the fingers were going white from the tips to the base of all the fingers, front and back, at the same time. This condition can happen any time of the year, summer and winter. It was never part of any one finger or one finger alone going white. I have had no treatment for this condition. I have difficulty picking things up. I have difficulty with coins and tying things up. If I go to the swimming pool both hands go white.”

 

4. The examining doctor’s clinical findings included, in relation to the hands:

 

“warm and pink; normal capillary return; sensation intact; grips good; manual dexterity slightly impaired.”

 

5. The doctor advised that the Claimant was not suffering from VWF. He did not show any part of the Claimant’s hands as affected by blanching on the diagrams set out in the form. His additional remarks were:

 

“The pattern and evolution of symptoms is not consistent with VWF. To-day’s history and clinical evidence do not support diagnosis of VWF.”

 

6. Following that examination, a decision was made by an adjudication officer in the following terms:

 

“Disablement benefit is not payable from and including 1 January 1987 because the claimant has not been suffering from the prescribed disease known as [VWF] or from any condition resulting therefrom. This decision is made having regard to a report from the medical practitioner to whom the question was referred.”

 

7. The Claimant did not appeal against that decision, which was notified to him on 26 August 1998.

 

8. On 25 October 2007 the Claimant made a further claim for disablement benefit in respect of VWF, and also a claim for reduced earnings allowance. On his VWF claim form he said that he had not previously claimed disablement benefit in respect of VWF. He also gave an incorrect national insurance number.

 

9. The Claimant was medically examined for the purposes of those claims on 26 February 2008. He gave a somewhat different description of the nature and development of his symptoms from that which he had given in 1998. In particular, he said:

 

“Onset was about 1975. The tingling started first in the tops of some fingers. Then it went into all of them. The whiteness came on gradually from 1975. Whiteness is front and back of my fingers. It is waxy like a candle in character.”

 

10. The examining doctor advised that the Claimant did have VWF, giving as his reason that the Claimant had “episodic blanching as defined.” He considered that the loss of faculty had existed since 1 January 1975. He advised that the loss of faculty should be assessed at 7% from the “91^st day”.

 

11. It appears that on 3 March 2008 a decision was made that the Claimant was and had since (?) 1985 been suffering from VWF, and that disablement be assessed at 7% from 1 April 1985 for life, and that the Claimant was therefore not entitled to disablement benefit. It further appears that on 29 May 2008 a decision was made awarding reduced earnings allowance from 25 July 2007 (3 months before the date of claim) to 22 September 2012 at the maximum rate. No copies of those decisions are in the papers, but they are referred to in the decision of 12 November 2008 referred to below, and in the Secretary of State’s written submission to the First-tier Tribunal.

 

12. The decision of 12 November 2008 states as follows:

 

“Medical services and the decision maker were unaware [i.e. at the time of the advice and decisions earlier in 2008] that a previous claim had been made as the original B12 was not discovered until October 2008.

 

I have reviewed the decision of the decision maker dated 3 March 2008 as it was made in ignorance of a material fact – namely that [the Claimant] had been previously disallowed disablement benefit in respect of [VWF] on 26 August 1998 and that the earliest date from which he could be considered to be suffering from [VWF] is the day after that decision was made 29 August 1998 – this date 29 August 1998 becomes the earliest date of onset.

 

In view of the above I have looked at the claim to REA again and have decided to revise the decision maker’s decision made on 29 May 2008 on the grounds that it was made in ignorance of a material fact – namely that [the Claimant] had previously been disallowed disablement benefit in respect of [VWF] on 29 August 1998 and that the decision was a final and binding decision. As [the Claimant’s] date of onset is after 1 October 1990 his claim to Reduced Earnings Allowance falls to be disallowed from 25 July 2007.”

 

13. The effect of the decision of 12 November 2008, therefore, was to revise the decision awarding reduced earnings allowance so that it became a decision refusing that benefit on the ground that the date of onset was after 1 October 1990.

 

14. It was that decision which was under appeal to the First-tier Tribunal, which allowed the Claimant’s appeal, holding that “it is quite clear from Commissioner Howell’s decision in R(I) 5/04 that negative decisions on the diagnosis of a prescribed disease prior to the 1998 Act changes were not binding for the purposes of any subsequent claim” (para. 5 of the Statement of Reasons). The Secretary of State submits, in his appeal to me, that that was wrong.

 

15. In my judgment the Secretary of State is plainly right. The Claimant’s representative relies on paras. 18, 22 and 23 of R(I) 5/04. However, it is in my judgment quite clear from what Mr Commissioner Howell said in para. 14 of that decision that a pre-Social Security Act 1998 negative diagnosis decision prevents a subsequent finding, even after the 1998 Act provisions came into force (i.e. 5 July 1999), of a date of onset which is prior to the date of the previous negative decision. The Commissioner said:

 

“Where, in relation to a decision which had been made and become final under the express provisions of the pre-Social Security Act 1998 legislation, none of those things had happened [i.e. there had been no appeal, revision or supersession of the earlier negative diagnosis decision] at the time of the decision on a later claim under appeal to a tribunal, there was and is no jurisdiction before or after 5 July 1999 for the later tribunal to reopen any question of diagnosis or presence of the disease for the period already covered by the decision made final and binding by the legislation in force when it was given.” (My emphasis).

 

16. It is of course true that R(I) 5/04 was a case where both the decisions were after 5 July 1999, so that what the Commissioner said about cases where the first decision was made before that date was obiter. However, it was clearly very carefully considered, and moreover was in my view clearly right. There was nothing in the 1998 legislation which altered the position whereby, on the day that the legislation came into force, there was a decision on diagnosis which, by virtue of s.60(1) of the Social Security Administration Act 1992, was “final”. The Court of Appeal’s decision in Secretary of State v Whalley R(I) 2/03 establishes that a decision that the claimant was not suffering from an industrial disease down to a particular date prevents a later decision maker from finding an earlier date of onset. That, however, is not conclusive as to the point now argued on behalf of the Claimant because there both decisions were made under the pre-1998 Act regime. Section 60(1) and (2) of the 1992 Act provided:

 

“(1) Subject to the provisions of this Part of this Act, the decision of any claim or question in accordance with the foregoing provisions of this Part of this Act shall be final; and subject to the provisions of any regulations under section 58 above, the decision of any claim or question in accordance with those regulations shall be final.

 

(2) Subsection (1) above shall not make any finding of fact or other determination embodied in or necessary to a decision, or on which it is based, conclusive for the purpose of any further decision.”

 

17. Under reg. 45(1) of the Social Security Adjudication Regulations 1995 the adjudication officer was required to refer a diagnosis question for report by a medical practitioner. By reg. 46(1) and (2) the adjudication officer was required, on receipt of the report, either to decide the diagnosis question or to refer it to an adjudicating medical authority for decision. It was by virtue of those provisions that the decision of a diagnosis question by an adjudication officer was a self-standing decision of a “question” within the meaning of s.60(1) of the 1992 Act, and not merely a finding of fact embodied in a decision about entitlement to the substantive benefit in issue.

 

18. When one examines the terms of the decision made on about 26 August 1998, set out in para. 6 above, it looks as if the adjudication officer was in substance making a decision on the Claimant’s entitlement to disablement benefit, and that the decision on diagnosis was merely a finding of fact necessary to the decision as to entitlement. That would be the position under the post-1998 legislation. However, the provisions which I referred to in the previous paragraph show that the adjudication officer was required to make a decision of the “diagnosis question”, which was defined in reg. 43(2) of the 1995 Regulations as “any question …… whether any person is suffering or has suffered from a prescribed disease.” The 1998 decision must in my judgment therefore be regarded as having comprised both (a) a decision of the diagnosis question and (b) a decision on entitlement to disablement benefit.

 

19. My reasoning does not rely at all on the terms of regs 5 or 6 of the Social Security (Industrial Injuries)(Prescribed Diseases) Regulations 1985. Prior to the amendment with effect from 18 March 2005, reg. 5 applied only to a decision that the claimant did have an industrial disease from a particular date, and not to decisions based on a finding that the claimant does not have the disease. The new reg. 5(2), which does apply to such decisions, applies only where the negative entitlement decision was made after 18 March 2005 – i.e. after the provision came into force.

 

20. It is further submitted on behalf of the Claimant in this appeal that in any event the decision maker was wrong, on 12 November 2008, to revise the decisions of 3 March and 28 May 2008 for ignorance or mistake as to material fact, because the Department were aware of the adjudication history, and therefore knew that there had been a previous adverse diagnosis decision. The ground of revision in reg. 3(5)(b) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 applies where “the decision was made in ignorance of, or was based on a mistake as to, some material fact ……”. In my judgment that is referring to ignorance or mistake on the part of the particular decision maker who made the decision. But even if that were not so, there would still be a ground for revision, namely that in reg. 3(5)(a) – “official error”. If one treats the decision maker as having been aware that there was a previous negative diagnosis decision, then he was in error in making the decisions of 3 March and 29 May 2008.

 

21. In my judgment I must therefore allow the Secretary of State’s appeal and substitute a decision in the terms set out in bold in paragraph 1 above.

 

22. The words in brackets in that decision are to cover the possibility that the negative diagnosis decision made on about 26 August 1998 could be superseded on the ground that it was made in ignorance of or under a mistake as to material fact, or in error of law, under reg. 6(2)(b)(i) of the 1999 Regulations, the superseding decision then going on to find that the date of onset was before 1 October 1990. If that were to happen then there would appear to be no bar to an award of reduced earnings allowance: see generally R(I) 2/04.

 

23. I have no jurisdiction to make any decision about this, but have given some outline consideration to whether there may be a ground for supersession of the 1998 decision. The possibility was recognised in para. 5.3 of the Secretary of State’s submission to the First-tier Tribunal, where it was submitted that “a change of medical opinion does not of itself provide grounds for supersession and there does not appear to be any previously unknown fact which has come to light at the examination 26 February 2008 which would lead to a supersession of the decision of 26 August 1998.”

 

24. As I read the examining doctor’s report of 20 August 1998, the main reason why he advised that the Claimant did not have VWF was probably that the onset of the blanching was sudden – i.e. affecting all fingers and digits at once – rather than gradual. He refers to the “pattern and evolution of symptoms.” A number of possibilities arise. First, he may as a matter of fact have been wrong in considering that the onset was not gradual. At his 2008 examination the Claimant said that the onset was gradual. That would be a mistake as to a material fact on the part of the 1998 examining doctor, and therefore decision maker. Secondly, if the 1998 doctor and decision maker were right in thinking that the onset was sudden, they may have believed that that meant, as a matter of law, that the Claimant could not have VWF. That would have been an error of law (see R(I) 3/04 at paras. 24-5). Thirdly, the 1998 examining doctor may have considered that it was medically unlikely that the Claimant had VWF if the onset was sudden. That may not indicate a mistake of any kind.

 

25. As I understand it no decision has been made by the Secretary of State on an application for supersession, no such application having yet been made, at any rate in express terms. It might be possible to argue that the second paragraph of the submission on behalf of the Claimant to the First-tier Tribunal (p.68) – “it is submitted that [the 1998 decision] was wrong in fact and that the examining medical officer made the wrong decision”, amounted to an application for supersession, in which case that application remains to be determined. Alternatively, the Claimant could now make an express application. I have no jurisdiction to determine any of these issues relating to supersession, but it would have been wrong to leave this decision without mentioning them.

 

 

 

 

 

 

 

 

 

 

Charles Turnbull

Judge of the Upper Tribunal

25 May 2010