Hill, R (on the application of) v Social Security Commissioner & Anor

In assessing industrial injuries disablement benefit, an accident which accelerates the onset of disability may remain causative during the period by which the disability was brought forward. It is wrong to assume that the accident’s causative effect ended immediately after the accident merely because the underlying degenerative condition would eventually have produced the same symptoms.

Article 6 does not require legal representation in a predominantly medical benefit assessment, nor does it necessarily require continuation of the benefit until an appeal is determined. The requirement of a hearing within a reasonable time is fact-sensitive. A delay of several months was materially different from the six-year delay considered in Salesi v Italy.

The claimant sought permission to apply for judicial review of the Social Security Commissioner’s refusal of permission to appeal against an Industrial Injuries Disablement Benefit Appeal Tribunal decision. The Tribunal had found that the claimant’s workplace accident accelerated symptoms caused by pre-existing degenerative spinal changes by two years, but dismissed his appeal because the symptoms would otherwise have arisen before the relevant period.

The Commissioner concluded that no error of law was arguable. Forbes J refused permission on paper, and the claimant renewed the application orally. He also raised Article 6 objections concerning delay, legal representation and termination of benefit before an appeal was determined. The central issue was whether the Tribunal had drawn the correct legal consequence from its finding that the onset of disability had been accelerated.

1. Permission granted in part. Permission to apply for judicial review of the Commissioner’s determination dated 19 May 2008 was granted on the ground that the Tribunal may have erred in law when applying its finding that the claimant’s symptoms had been accelerated by two years.
2. Where an accident accelerates the onset of symptoms which would eventually have occurred because of a continuing degenerative condition, the compensable effect may consist of the earlier period of disability. The accident’s causative effect is not necessarily exhausted immediately after the accident. On the Tribunal’s finding, it was arguable that the claimant reached the relevant level of disability in March 2006 rather than March 2008, potentially entitling him to benefit for the intervening period.
3. The Tribunal was entitled to consider medical reports supplied by the claimant for his personal injury claim. The reports, the general practitioner’s letter and the later scan provided a proper evidential basis for its factual findings. There was no sufficient evidence that the accident caused or contributed to the claimant’s Meniere’s disease.
4. The Article 6 grounds were unarguable. The proceedings had progressed within months, unlike the six-year delay in Salesi v Italy. The predominantly medical nature of the assessment meant that legal representation was not required to secure equality of arms. Nor did the reasoning in Goldberg v Kelly apply to industrial injuries disablement benefit, which was compensation for disability rather than a subsistence benefit and involved a medical assessment at which the claimant could explain his condition.
5. There was no order as to costs.

• Industrial Injuries Disablement Benefit Appeal Tribunal: dismissed the claimant’s appeal, finding that the accident accelerated the onset of symptoms by two years but that the symptoms would otherwise have occurred before March 2006.
• Social Security Commissioner: refused permission to appeal, holding that no error of law was arguable.
• High Court (Administrative Court): Forbes J refused permission on paper. On renewed oral consideration, permission was granted on the acceleration issue but refused on the Article 6 grounds.