DM CI 2980 2009
| Jurisdiction | UK Non-devolved |
| Judge | Judge N J Wikeley |
| Judgment Date | 24 June 2010 |
| Neutral Citation | 2010 UKUT 207 AAC |
| Subject Matter | Industrial diseases |
| Respondent | Secretary of State for Work and Pensions |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CI 2980 2009 |
| Appellant | DM |
DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
The DECISION of the Upper Tribunal is to allow the appeal by the appellant.
The decision of the Nottingham First-tier Tribunal dated 24 September 2009 under file reference 045/09/02040 involves an error on a point of law and is set aside.
The Upper Tribunal is not in a position to re-make the decision under appeal. It therefore follows that the appellant’s appeal against the Secretary of State’s decision dated 21 July 2009 is remitted to be re-heard by a different First-tier Tribunal, subject to the Directions below.
This decision is given under section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007.
DIRECTIONS
The following directions apply to the re-hearing:
(1) The re-hearing will be at an oral hearing.
(2) The new tribunal should not involve the tribunal judge and medical member who comprised the tribunal considering this appeal at the hearing on 24 September 2009.
(3) A copy of the written submission to the Upper Tribunal dated 27 April 2010 by Mr D Kendall, on behalf of the Secretary of State (pages 43-69 of the Upper Tribunal bundle), should be included in the papers for the First-tier Tribunal that rehears this appeal.
(4) The new tribunal must make findings of fact as to the actual nature of the appellant’s work at all material times and further make findings as to whether that work fell within the terms of any prescribed occupation(s), taking into account the guidance in this decision;
(5) The new tribunal must consider all the evidence afresh and is not bound in any way by the decision of the previous tribunal. Depending on the findings of fact it makes, the new tribunal may reach the same or a different outcome to the previous tribunal.
These directions are all subject to any later directions by a Tribunal Judge in the Social Entitlement Chamber of the First-tier Tribunal.
REASONS FOR DECISION
The issue in this appeal
1. This appeal concerns the prescription test for the (relatively) new prescribed disease of osteoarthritis in the knee in coal miners, also known as Prescribed Disease (PD) A14.
2. In broad terms, a person satisfies the prescription test for PD A14 if he has worked in certain occupations underground in a coal mine for at least 10 years. The prescription test is different for employment before and on or after January 1, 1986 respectively. The claimant, who qualified as an electrician, worked in coal mines from 1980 until 1991. It does not appear to be in dispute that he worked underground for at least 10 years. The question is whether or not he worked in any of the relevant prescribed occupations.
3. The claimant and the Secretary of State’s representative are agreed that the First-tier Tribunal which heard the claimant’s appeal in Nottingham made an error of law and the case needs to be re-heard. In normal circumstances that might justify the appeal to the Upper Tribunal being dealt with by way of a short remittal decision with summary reasons.
4. However, I am aware that this appeal may well have a much wider significance beyond that of the claimant’s own case, important though that is for him. By all accounts there have been more than 40,000 claims for industrial disablement benefit on the basis of PD A14 within the last year, which are likely in turn to generate a substantial number of appeals. These appeals will often turn on medical issues, such as the definition of osteoarthritis of the knee and the assessment of the consequential degree of disablement, which do not arise in the present proceedings. However, a significant number of appeals may depend on the terms of the prescription test for PD A14. It is therefore appropriate for the Upper Tribunal to provide some initial guidance on the interpretation and application of the relevant rules. The terms of the new prescribed disease need to be considered first.
Osteoarthritis in the knee in miners (PD A14)
5. Osteoarthritis in the knee in miners (PD A14) was first prescribed for the purposes of the industrial injuries scheme by the Social Security (Industrial Injuries) (Prescribed Diseases) Amendment Regulations 2009 (SI 2009/1396). These regulations amended Part I of Schedule 1 to the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985 (SI 1985/967, “the 1985 Regulations”) by adding the following entry:
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Prescribed disease or injury |
Occupation |
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“A14 |
Osteoarthritis of the knee. |
Work underground in a coal mine for a period of, or periods which amount in aggregate to, at least 10 years in any one or more of the following occupations: |
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(a) |
before 1st January 1986 as a coal miner; or |
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(b) |
on or after 1st January 1986 as a— |
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(i) |
face worker working on a non-mechanised coal face; |
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(ii) |
development worker; |
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(iii) |
face-salvage worker; |
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(iv) |
conveyor belt cleaner; or |
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(v) |
conveyor belt attendant. |
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‘A non-mechanised coal face’ means a coal face without either powered roof supports or a power loader machine which simultaneously cuts and loads the coal or without both.” |
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6. The new provision came into effect on July 13, 2009. This means that, assuming the relevant criteria are satisfied, a claimant can only be paid industrial disablement benefit for PD A14 with effect from July 13, 2009 at the earliest, regardless of how many years he has suffered from osteoarthritis in the knee. This is shown by the decision of Mr Commissioner Goodman in CI/414/1994, holding that industrial disablement benefit for a new prescribed disease cannot be paid for any day prior to the coming into operation of the statutory instrument that prescribes that disease (in that case PD D12, chronic bronchitis or emphysema in coal miners).
7. The prescription of PD A14 followed a report from the Industrial Injuries Advisory Council (“IIAC”), an independent expert body which advises the Secretary of State, entitled Osteoarthritis in the knee in coal miners (Cm 7440, August 2008). It is well established that the courts and tribunals can have regard to relevant IIAC reports as an aid to construction where legislation has been enacted to implement a recommendation in the report (see e.g. R(I) 15/75, at paragraphs 15 and 16; see also CI/5331/2002 at paragraph 12 and most recently Secretary of State for Work and Pensions v CS (II) [2010] UKUT 198 (AAC) at paragraph 26). The IIAC report is a detailed 20-page review of the medical and scientific evidence relating to osteoarthritis of the knee in coal miners with various conclusions and recommendations. The IIAC report was summarised in the Explanatory Memorandum to the 2009 amending regulations in the following terms (at paragraph 7.4):
“IIAC found that up until the mid 1980s, all underground coal miners had jobs involving prolonged kneeling and squatting under heavy loads. Those conditions would have persisted from the mid 1980s onwards only for certain occupational categories of miners. IIAC held that...
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