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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Secretary of State for Work and Pensions v Whalley [2003] EWCA Civ 166 (14 February 2003) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2003/166.html Cite as: [2003] EWCA Civ 166 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SOCIAL SECURITY COMMISSIONER
Strand, London, WC2A 2LL | ||
B e f o r e :
LORD JUSTICE MUMMERY
and
LORD JUSTICE DYSON
____________________
Secretary of State for Work and Pensions | Appellant | |
- and - | ||
Ronald Whalley | Respondent |
____________________
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Duran Seddon (instructed by Browell Smith & Co Solicitors) for the Respondent
____________________
AS APPROVED BY THE COURT
Crown Copyright ©
Lord Justice Schiemann :
(1) disablement benefit ("DB") – entitlement to which is determined in accordance with sections 103 to 105 of the SSCBA 1992; and
(2) reduced earnings allowance ("REA") – entitlement to which is determined in accordance with Part IV of schedule 7 of the SSCBA 1992.
The legislative history of these two benefits
The history of the Disablement Benefit Claims
The history of the Reduced Earnings Allowance claim
The decision of the Medical Appeal Tribunal
The decision of the Social Security Commissioner
i) that where there was a refusal of a claim for DB on the grounds that the Claimant did not have PD A11 at the date of the decision, a later decision maker, faced with a new claim for that benefit, can not specify a date of onset of that disease which is prior to the date of refusal of the first claim;
ii) that the same applies where there are two claims for REA;
iii) but that a previous determination on a claim for DB that a claimant does not have PD A11 is to be treated as a question of fact by a decision maker deciding a later claim for REA and is not therefore binding on that later authority either under s.60 of the SSAA 1992 or under the later legislation;
iv) that a claimant was entitled to claim REA without even claiming DB.
The Issue
The position of this court
Disablement Benefit : Substantive criteria for establishing eligibility
i) a claim was made: s.1 of the SSAA 1992;
ii) he was in a prescribed occupation under the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985 ("the 1985 Regulations");
iii) he suffered from and was diagnosed as suffering from the PD;
iv) the PD was a result of the prescribed employment;
v) the PD resulted in a loss of faculty;
vi) the loss of faculty resulted in disablement;
vii) the extent of that disablement (assessed in accordance with schedule 6 of the SSCBA 1992 – see s.103(5) ) is not less than 14%.
"…the period to be taken into account by an assessment for the purposes of s.103 above … of the extent of a claimant's disablement shall be the period … during which the claimant has suffered and may be expected to continue to suffer from the relevant loss of faculty."
"An assessment for the purposes of section 103 above … shall
(a) state the degree of disablement in the form of a percentage;
(b) specify the period taken into account by the assessment; and
(c) where that period is limited by reference to a definite date, specify whether the assessment is provisional or final;
but the percentage and the period shall not be specified more particularly than is necessary for the purposes of determining in accordance with section 103 above and Parts … IV of schedule 7 to this Act the Claimant's rights as to disablement pension … and reduced earnings allowance (whether or not a claim has been made)."
Reduced Earnings Allowance : Substantive criteria for establishing eligibility
"(1) Subject to the provisions of this paragraph, an employed earner shall be entitled to [REA] if:
(a) he is entitled to a disablement pension or would be so entitled if that pension were payable where disablement is assessed at not less than 1 per cent; and
(b) as a result of the relevant loss of faculty, he is either:
(i) incapable, and likely to remain permanently incapable, of following his regular occupation; and
(ii) incapable of following employment of an equivalent standard which is suitable in his case…
but a person shall not be entitled to [REA] to the extent that the relevant loss of faculty results from an accident happening on or after 1st October 1990…"
Section 109(1)(b) makes this provision applicable to PDs as well as accidents.
The date of onset
"If on a claim for benefit under Chapter V of Part II of the Act in respect of a prescribed disease a person is found to be or to have been suffering from the disease … the disease shall for the purposes of such claim be treated as having developed on a date (hereinafter in these regulations referred to as "the date of onset") determined in accordance with the provisions of the next 2 following regulations".
"(1) For the purposes of the first claim in respect of a prescribed disease suffered by a person, the date of onset shall be determined in accordance with the following provisions of this regulation, and … that date shall be treated as the date of onset for the purposes of any subsequent claim in respect of the same disease suffered by the same person….
(2) Where the claim for the purposes of which the date of onset is to be determined is-
…
(b) a claim for disablement benefit… the date of onset shall be the day on which the claimant first suffered from the relevant loss of faculty…".
The relationship between entitlement to DB and entitlement to REA
i) the claimant suffering from a PD – a diagnosis question;
ii) the PD resulting in a loss of faculty – a disablement question;
iii) an assessment of the degree of disablement resulting from the loss of faculty – another disablement question; and
iv) the period to be taken into account being determined: that involves ascertaining the date of onset of the disease.
The Submissions
(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 shall be final; …
(2) Subsection (1) 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.
Conclusion
(1) a claim being made: s.1 Social Security Administration Act 1992 ("the SSAA 1992");
(2) the claimant being in a prescribed occupation under the 1985 Regulations;
(3) the claimant suffering from and being diagnosed as suffering from the PD;
(4) the PD being as a result of the prescribed employment;
(5) the PD results in a loss of faculty; and
(6) that loss of faculty results in disablement.
Disposal