Secretary of State for Work and Pensions CI 1386 2009
| Jurisdiction | UK Non-devolved |
| Judge | Judge P. L. Howell Q.C. |
| Judgment Date | 10 June 2010 |
| Neutral Citation | 2010 UKUT 198 AAC |
| Subject Matter | Industrial diseases |
| Respondent | CS |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CI 1386 2009 |
| Appellant | Secretary of State for Work and Pensions |
[2011] AACR 4
(Secretary of State for Work and Pensions v CS (II) [2010] UKUT 198 (AAC))
Judge Howell QC CI/1386/2009
10 June 2010
Prescribed disease A4 – task-specific focal dystonia – meaning of “task-specific” – whether includes cervical dystonia
The claimant suffered from cervical torticollis, a form of focal dystonia, brought on by frequent turning of her neck and upper body to use a computer in her work behind the counter of a building society. Her claim for industrial injuries disablement benefit was refused on the ground that her condition did not fall within the list of diseases or personal injuries prescribed in Schedule 1 to the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985. She appealed and the First-tier Tribunal allowed her appeal, holding that her condition fell within the wording of the prescription of prescribed disease A4 “Task-specific focal dystonia”, which was substituted from 6 April 2007 for “Cramp of the hand or forearm due to repetitive movements”, following a report of the Industrial Injuries Advisory Council. The Secretary of State appealed to the Upper Tribunal, arguing that a “task-specific focal dystonia” in the sense in which those words were used in the regulation would only affect the hand or forearm and as the tribunal clearly recorded that the claimant’s hands and arms were not affected, the terms of the prescription of the disease could not be satisfied. It was accepted that her work brought her within the occupational part of the prescription in the Schedule and that her work caused her disability. The judge heard medical evidence and considered medical literature on the meaning of “task-specific focal dystonia”.
Held, allowing the appeal, that:
- in a specialised medical context such as this, the term “task-specific” refers to dystonic conditions which relate to muscles involved in performing skilled fine motor tasks, not as a general term so as to include dystonias that relate to the larger, less specific or finely-controlled muscular movements (paragraphs 19 to 23)
- it is legitimate to draw at least some inference as to the intended scope of the reference to “task-specific” in the description of the disease from the actual occupational tasks identified for the purposes of the prescription, as referring to the kind of movements and actions specific to those occupational activities and not to anything more general (paragraph 24)
- the prescribed disease had throughout its long history been concerned with conditions accepted as related to the performance of finely-controlled repetitive movements and the terms of the report which led to the introduction of the 2007 rewording left no doubt that the only aspect of the existing wording sought to be addressed by the introduction of the amendment was the removal of the risk of ambiguity from the use of the old term “cramp”, which was considered to require replacing by more up-to-date medical terminology (paragraphs 25 to 29);
- cervical dystonia of the kind suffered by the claimant was therefore not within the true scope of disease A4 “Task-specific focal dystonia” as prescribed from April 2007 (paragraph 18);
- if the effect of the amendment to the prescription of prescribed disease A4 in 2007 were to extend the scope of the prescription to include cervical dystonia, the whole amendment would have to be held invalid for failure to comply with the statutory preconditions of the Secretary of State’s power to make the statutory instrument, since there was no evidence and no basis in the Council’s report for him to be satisfied that the prescription should be extended to that particular type of focal dystonia (paragraphs 29 and 30).
DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
The Secretary of State’s appeal is allowed. The First-tier Tribunal’s decision is set aside as erroneous in law and replaced under section 12(2)(b) of the Tribunals, Courts and Enforcement Act 2007 with this decision, that on her claim of 13 February 2008 for disablement benefit the claimant’s medical condition has not been shown to be within the relevant disease prescription of Prescribed Disease A4 (and accordingly the Secretary of State’s decision of 7 August 2008 refusing the claim was correct and is confirmed.
REASONS
1. This appeal by the Secretary of State must be allowed, as in my judgment the First-tier Tribunal which determined the case in the claimant’s favour at Nottingham on 23 January 2009 (Mr J Marston, chairman and Professor S P Allison, consultant medical member) misdirected itself in holding the condition of cervical torticollis from which she has suffered since developing it at work some ten years ago falls within the legally permitted scope of the prescription of disease A4 “Task-specific focal dystonia” as substituted in Schedule 1 to the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985 (SI 1985/967) from 6 April 2007. I therefore set the tribunal’s decision aside and, as the result of the case depends entirely on that question of legal definition, exercise the power in section 12(2)(b) Tribunals, Courts and Enforcement Act 2007 to substitute the decision set out above.
2. The claimant is a lady now aged 55 who has the misfortune to suffer from a condition known as cervical or spasmodic torticollis, which is an abnormal contortion of the muscles of the neck causing her to hold her head in an awkward position permanently twisted to one side. This is a well-recognised but happily not very common medical condition, one of a group now known collectively by the name “dystonia”. Their precise causes are as yet imperfectly understood though it appears from the medical evidence and literature before me to be common ground that they are to do with some malfunction in the areas of the central nervous system controlling the actions of the muscles, so these are organic neurophysiological conditions, not psychological in origin. Unhappily in the form in which the claimant’s condition has developed it has led, in the tribunal’s words, to a debilitating and permanent twisting of the neck causing pain and restrictions of movement, and is incapable of relief by surgery or manipulation.
3. The tribunal and the departmental medical examiner both accepted that the claimant’s condition was work-related, in the sense that it was brought on by the job she used to do in a building society which involved sitting behind a counter to deal with customers in front of her but in the course of that having to turn her neck and upper body frequently to look at and operate a computer screen and keyboard positioned to one side. It goes without saying that a permanent condition of that nature has a substantially disabling effect as well as being distressing and embarrassing; and the tribunal assessed the claimant’s resultant level of disablement at 30 per cent, a figure that has not been questioned in this appeal.
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...
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