Secretary of State CSI 563 2011
| Jurisdiction | UK Non-devolved |
| Judge | Judge D. J. May Q.C. |
| Judgment Date | 28 May 2012 |
| Neutral Citation | 2012 UKUT 204 AAC |
| Subject Matter | Industrial injuries benefits |
| Respondent | ER |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CSI 563 2011 |
| Appellant | Secretary of State |
Secretary of State v ER
[2012] UKUT 204 (AAC)
Case No: CSI/563/2011
Hearing Date: 15 June 2011
THE UPPER TRIBUNAL
ADMINISTRATIVE APPEALS CHAMBER
DECISION OF THE UPPER TRIBUNAL JUDGE
Before: D J MAY QC
Attendances:
For the Appellant: Mr Webster, Advocate instructed by Solicitor, of the Office of the Solicitor to the Advocate General
For the Respondent: Ms Harry, Clydeside Action on Asbestos.
The appeal is allowed.
The decision of the tribunal given at Inverness on 15 June 2011 is set aside.
The Judge of the Upper Tribunal remakes the decision that the First-tier Tribunal ought to have given. It is as follows: Prescribed disease 8A is not prescribed in relation to the claimant.
REASONS FOR DECISION
1. On 21 September 2010 the claimant submitted a claim to industrial injuries disablement benefit in respect of prescribed disease D8A, known as primary carcinoma of the lung. His claim was refused by a decision maker on 28 October 2010. The decision maker decided that the disease is not prescribed in relation to the claimant.
The claimant thereafter appealed to the First-tier Tribunal.
2. The claimant’s appeal was heard by that tribunal on 15 June 2011. The tribunal allowed the claimant’s appeal and found that he was entitled to industrial injuries disablement benefit as he was suffering from prescribed disease D8A. He was assessed as being one hundred per cent disabled as a consequence of this disease. The period of this assessment is from 1 January 2010 for life. The claimant subsequently died. His interest in this appeal is pursued by his widow.
3. In making their decision the tribunal said:
“Although [the claimant] was employed as a scaffolder and was not directly himself employed in using asbestos to insulate pipes, he was routinely working in close proximity to those who were using asbestos for that purpose.
We have had regard to the precise wording of the prescription. Although his representative urges us to concentrate on paragraph (c) in fact, since [the claimant] was largely working on the construction of oil rigs, it is our conclusion on the basis of [the claimant’s] evidence that he was exposed to asbestos in the course of his employment which arose in terms of both paragraphs (c) and (d).”
4. The Secretary of State has appealed against this decision. An oral hearing of the appeal was heard before me on 11 May 2012.
5. The finding in fact which is material in the appeal before me is set out above. The question in the appeal is whether or not the claimant’s disease which was primary carcinoma of the lung was prescribed in relation to himself.
6. The starting point for consideration of the issue which requires to be determined in this appeal is, I consider, conveniently summarised by Upper Tribunal Judge Howell QC in [2011] AAC R4. There in paragraphs 4 and 5 he says:
“4. What is at issue in this appeal, as already indicated, is whether the medical condition which gives rise to that disablement is within the terms of the prescription of disease A4 at all. Industrial injuries benefits for illnesses or injuries other than accidents can only become payable under section 108 Social Security Contributions and Benefits Act 1992 if the medical condition giving rise to the claimed disability falls within the specific list of diseases or personal injuries expressly prescribed in relation to the person’s employment by the regulations made by the Secretary of State under that section as from time to time in force.
5. The cardinal condition for any disease or injury to be included in that list, and before any question of benefit becoming payable in respect of it under the statutory scheme can arise, is that in section 108(2) as follows:
“(2) A disease or injury may be prescribed in relation to any employed earners if the Secretary of State is satisfied that –
(a) it ought to be treated, having regard to its causes and incidence and any other relevant considerations, as a risk of their occupations and not as a risk common to all persons; and
(b) it is such that, in the absence of special circumstances, the attribution of particular cases to the nature of the employment can be established or presumed with reasonable certainty.”
7. In accordance with the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985 there was included within the list of prescribed diseases set out in schedule 1 of these Regulations prescribed disease D8 which was:
“D8 Primary carcinoma of the lung where there is accompanying evidence of one or both of the following:-
(a) asbestosis;
(b) bilateral diffuse pleural thickening.”
The occupation to which that prescribed disease applied was any occupation involving:
“(a) the working or handling of asbestos or any admixture of asbestos; or
(b) the manufacture or repair of asbestos textiles or other articles containing or composed of asbestos; or
(c) the cleaning of any machinery or plant used in any of the foregoing operations and of any chambers, fixtures and appliances for the collection of asbestos dust; or
(d) substantial exposure to the dust arising from any of the foregoing operations.”
These regulations were amended by the Social Security (Industrial Injuries) (Prescribed Diseases) Amendment Regulations 2006 coming into force on 6 April 2006. The version brought in force by these regulations was in the following terms:
“D8 Primary carcinoma of the lung where there is accompanying evidence of asbestos.
(a) The working or handling of asbestos or any admixture of asbestos; or
(b) the manufacture or repair of asbestos textiles or other articles containing or composed of asbestos; or
(c) the cleaning of any machinery or plant used in any of the foregoing operations and of any chambers, fixtures and appliances for the collection of asbestos dust; or
(d) substantial exposure to the dust arising from any of the foregoing operations.
D8A Primary carcinoma of the lung.
Exposure to asbestos in the course of –
(a) the manufacture of asbestos textiles; or
(b) spraying asbestos; or
(c) asbestos insulation work; or
(d) applying or removing materials containing asbestos in the course of shipbuilding, where all or any of the exposure occurs before 1st January 1975, for a period of, or periods which amount in aggregate to, five years or more, or otherwise, for a period of, or periods which amount in aggregate to, ten years or more.”.
8. Mr Webster explained to me that prior to the laying of the amendment regulations before Parliament asbestos related diseases had been the subject of:
“Report by the Industrial Injuries Advisory Council in accordance with Section 171
of the Social Security Administration Act 1992 reviewing the prescription of the
asbestos-related diseases.”
This was done in CM6553. In a letter to the Secretary of State dated 20 January 2005 the Chairman of the Council said:
“4. The prescription of lung cancer due to asbestos has had a long history. Whilst it is clear that there is an excess of risk of lung cancer in the presence of asbestosis, evidence has accumulated which demonstrates that lung cancer can occur independently from asbestosis, where substantial occupational exposure to asbestos has occurred. We recommend adding lung cancer in the absence of asbestosis, for occupations where there is evidence of substantial occupational asbestos exposure, to the terms of prescription for PD D8. We further recommend removing pleural thickening from the terms of prescription for lung cancer, as it is unreliable as an indicator of substantial asbestos exposure – the purpose it was meant to serve. Due to the poor prognosis for those with asbestos-related lung cancer, we recommend that all claimants of PD D8 be assessed at 100% disablement.”
The report does require to be read as a whole. It is apparent that the Council were aware that as asbestos-related lung cancer can occur after substantial exposure to asbestos within the period set out by them in paragraph 23. They note that it is indistinguishable from lung cancer due to other cases. The Council noted the legal requirements for prescription to which I have referred to above. They appreciated in the statutory context that a disease may only be prescribed if there is a recognised risk to workers in an occupation and the link between disease and occupation can be established or reasonably presumed in individual cases. The summary of their investigations is set out by them in paragraph 65 of their report:
“65. In summary, lung cancer can be attributed to occupation where workers have been exposed to substantial asbestos exposure. Workers with substantial asbestos exposure are those where asbestosis is present, or workers in the following categories: asbestos textile workers, asbestos sprayers, asbestos insulation workers including those applying and removing asbestos-containing materials in shipbuilding. The Council recommends that workers in the jobs listed require at least 5 years asbestos exposure before 1975 or at least 10 years asbestos exposure after 1975 to fulfil the terms of prescription. Recent evidence indicates that diffuse pleural thickening is an unreliable marker of asbestos exposure and the Council recommends...
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