TA CI 402 2012
| Jurisdiction | UK Non-devolved |
| Judge | Judge S. Wright |
| Judgment Date | 20 March 2014 |
| Neutral Citation | 2014 UKUT 127 AAC |
| Subject Matter | Industrial injuries benefits |
| Respondent | SSWP |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CI 402 2012 |
| Appellant | TA |
IN THE UPPER TRIBUNAL Appeal No: CI/402/2012
ADMINISTRATIVE APPEALS CHAMBER
Before: Upper Tribunal Judge Wright
DECISION
The Upper Tribunal dismisses the appeal of the appellant.
The decision of the First-tier Tribunal sitting at Leeds on 1 November 2011 under reference SC007/11/01186 did not involve a material error on a point of law. The decision of the tribunal stands.
This decision is given under section 11 of the Tribunals Courts and Enforcement Act 2007
REASONS FOR DECISION
Introduction
- The issue with which this appeal is concerned is whether a person can be entitled to an award of reduced earnings allowance (“REA”) for a period falling after he has attained pensionable age and after he has given up regular employment in circumstances where he had another award of REA in place prior to those dates
- I had thought that the answer to this question may depend upon answering a wider and arguably more important question, namely whether a person may first be awarded REA for a period after he has attained pensionable age and has given up regular employment. However, for the reasons I give below, I have not felt it appropriate to seek to answer this second question
- The short answer to the first question raised above is “No”, and that is why the appellant’s appeal fails. However, to understand why that is so, and why the second question arises, it is necessary to navigate through the thicket of the industrial injuries benefit scheme as it has developed and as it now stands
Relevant background – factual
- There are three potential awards of REA that are in play. Throughout these proceedings I have termed these, to keep matters simpler, “REA1”, “REA2”, and “REA3”, and continue to do so in this decision. It is the claim for REA3 with which this appeal is concerned but it can only be properly understood in terms of this appeal by having a grasp of the REA1 and REA2 awards.
- The appellant was born on 28 February 1944 and thus reached the age of 65 (his “pensionable age”) on 28 February 2009. He worked in the mining industry. It is not disputed that he last worked, and in the language of the legislation “gave up regular employment”, in 1993.
- His first regular occupation in the mining industry, at least for the purposes of this appeal, was as a coal face worker. While working as a coal face worker he unfortunately suffered an industrial accident in April 1970. He made a successful claim for what was then called severe hardship allowance (“SHA”) which then became an award of REA. The award of SHA and then REA ran from 30 September 1970 to 28 February 2009. This is “REA1”. This award ended because the appellant had reached the age of 65.
- The second award of REA (“REA2”) arose from a second industrial accident the appellant unfortunately suffered from at the beginning of January 1980. He was still then working in the mining industry but now his regular occupation was as a general development worker. This accident also led to an award of SHA/REA, which ran from 2 July 1980 to 28 February 2009. It too stopped because the appellant had reached the age of 65.
- It is not disputed that the appellant was entitled to have two REA awards to reflect the different losses of earnings arising from his being unable to do two different jobs: per Secretary of State for Social Security –v- Hagan [2001] EWCA Civ 1452 (R(I)2/02).
- As I have already said, the appellant reached his sixty fifth birthday – his pensionable age - on 28 February 2009. Because of this and because he had “given up regular employment” in 1993, the two awards of REA were “converted” over to one award of retirement allowance (“RA”) from 1 March 2009 under the provisions in paragraph 13 in Schedule 7 to the Social Security Contributions and Benefits Act 1992 (“SSCBA”). The validity of there only being one award of RA was confirmed by Upper Tribunal Judge Ward in TA-v- SSWP (II) [2010] UKUT 101 (AAC), a decision to which further reference is made below.
- On 24 August 2010 the appellant then made a third claim for REA. This is what I have termed REA3. Given the history set out immediately above, it is apparent (and undisputed) that this claim was made both after the appellant had given up regular employment and after he had reached pensionable age. The claim was made on the basis that the appellant had suffered from prescribed disease PD A11 in Schedule 1 to the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985 (this prescribed disease commonly being referred to as “vibration white finger”) from 1 January 1974. The claim followed a First-tier Tribunal’s decision on 16 August 2010 which had decided that the appellant had been suffering from PD11 from 1 January 1974 and had assessed the resulting disablement at 6% for life from 6 April 1983 (page 4). In the REA claim form that the appellant then completed he made it clear that he wished to claim REA in respect of PD A11 only from 16 August 2010.
- As is apparent from later correspondence made on behalf of the appellant, the choice of this 16 August 2010 claim date by the appellant was deliberate. In short this was because it was (and remains) accepted that if the award of REA3 was sought for any period prior to 28 February 2009 then it would offend against the rule to which Hagan is the exception, namely that two awards of REA cannot be made in respect of the same occupation (see R(I)2/56).
- REA was refused on this claim by the Secretary of State on 15 November 2010. The reason for refusal was that both the 2 January 1980 industrial accident and the prescribed disease A11, with its date of onset of 1 January 1974, were attributable to the same regular occupation of general development worker (see page 23), and a second award of REA could not be payable in respect of the same occupation. That decision did not grapple with the appellant’s case that he was only seeking to claim REA from 16 August 2010 nor did the Secretary of State’s written appeal response on the appeal subsequently made by the appellant against this decision.
- The appeal was heard by a First-tier Tribunal sitting at Leeds on 1 November 2011 (“the tribunal”). The tribunal upheld the Secretary of State’s decision that no award could be made for what I have termed REA3. The core of its reasoning appears in paragraphs 5-10 of its reasoning, in which it said:
“The date of 28.02.09 is significant not because the Appellant ceased to satisfy the conditions of entitlement to REA on that date but because the Appellant then attained the age of 65 and, by operation of the legal provisions in force at that date…the Appellant’s REA was replaced by [RA]….He contends that at the date of his claim for REA in respect of PD A11 he was receiving REA. This, however, is purely as a result of the fact the Appellant attained the age 65 on 28.02.09 and his entitlement to REA, in essence, continued but, as explained above, was replaced by [RA]….it is possible to have two awards of REA….[it was] contended that the Appellant was claiming REA from 24.08.10 but…the Appellant’s entitlement, rather than payability, would have arisen at a much earlier date…….[it was] also stated [on behalf of the Appellant] that there was no claim for the period of the original award (for the accident on 01/01/1980) as that expired when the Appellant attained the age of 65….[t]he Tribunal did not accept this argument. The award of REA for the accident did not expire on the Appellant’s 65th birthday. It simply became a different type of benefit, namely [RA]”.
- The appellant then sought permission to appeal against the tribunal’s decision. His argument, in a nutshell, was that the tribunal had erred in law because his REA3 claim was for a period after REA2 had ended and so was not seeking an award of REA for the same period and the fact that he was over the age of 65 when he claimed REA3 was irrelevant.
- Permission to appeal was granted by Upper Tribunal Judge Powell on 19 March 2012. He did so as he considered it was “appropriate to grant permission in order that the detailed and carefully presented legal submissions can be properly considered”. Judge Powell then passed the appeal to me for consideration and decision.
- The Secretary of State initially supported the appeal to the Upper Tribunal, in submissions made on 21 June 2012, as he said he agreed with “the argument put forward in support of...
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