AR v Secretary of State (II)

Where disablement arises from more than one industrial accident or prescribed disease, regulation 11(5) requires an assessment of the later disease’s intrinsic disablement and of any additional disablement caused by interaction with the earlier industrial condition. It does not permit either double recovery for the earlier condition or an offset under regulation 11(3), which concerns non-industrial causes.

On aggregation, the tribunal must make a fresh assessment of all present disablement from relevant industrial causes. Earlier assessment figures are not binding. It must then aggregate the separate assessments and apply the rounding rules in section 103 of the Social Security Contributions and Benefits Act 1992. Reasons must identify the factual and functional basis of each assessment and address any material inconsistency in the medical evidence.

The appellant, a former underground coalminer, had existing assessments for vibration white finger (PD A11) and knee osteoarthritis (PD A14). His later successful claim for carpal tunnel syndrome (PD A12) led to a decision aggregating the assessments at 24%, payable at the 20% rate.

The First-tier Tribunal dismissed his appeal. It accepted a 6% offset for PD A11 from an overall 12% PD A12 assessment and did not reconsider the aggregation decision as a whole.

On appeal, the Upper Tribunal considered the correct application of regulation 11 of the Social Security (General Benefit) Regulations 1982, the aggregation required by section 103 of the Social Security Contributions and Benefits Act 1992, and the adequacy of the tribunal’s reasons.

1. Appeal allowed. The First-tier Tribunal’s decision involved material errors of law. It was set aside and the case was remitted for a complete rehearing before a differently constituted tribunal.

2. Regulation 11 requires the adjudicating authority first to establish the correct chronology of accidents and diseases. Regulation 11(3) deals with an earlier non-industrial effective cause, and regulation 11(4) with a later non-industrial cause. The tribunal wrongly used regulation 11(3) to offset the pre-existing industrial disease, PD A11, from the later PD A12 assessment.

3. Under regulation 11(5), where PD A12 developed after PD A11, the assessment for PD A12 must cover disablement caused solely by carpal tunnel syndrome and any additional disablement resulting from its interaction with vibration white finger. It does not include, for a second time, disablement solely caused by PD A11. The corrected approach might not alter the final payable rate, but required a fresh factual assessment.

4. For aggregation under section 103(2) of the Social Security Contributions and Benefits Act 1992, the tribunal had to make its own fresh assessment, at the relevant date, of present disablement from every accepted industrial accident or disease, including PD A11 and PD A14. Prior assessment figures were not binding. The resulting percentages had then to be aggregated before applying section 103(3) and (4).

5. The tribunal had erred by considering only the mandatory reconsideration decision rather than the underlying aggregation decision. Its reasons also failed to state the factual and functional basis for the separate assessments, any interaction between the two hand conditions, or why the examining doctor’s comparison with loss of an index finger supported 12% rather than the indicated 14% assessment.

6. The Secretary of State was directed to provide the new tribunal with details and papers relating to all prior accepted industrial accidents or diseases, whether or not a current award remained in payment.

• Upper Tribunal (Administrative Appeals Chamber): Allowed the appeal, set aside the First-tier Tribunal’s decision, and remitted the case for a complete rehearing.
• First-tier Tribunal (Social Entitlement Chamber): Sitting in Middlesbrough on 30 June 2013, it dismissed the appellant’s appeal and upheld the 6% PD A12 assessment reflected in the mandatory reconsideration decision.
• Secretary of State: On 4 September 2014, the decision-maker aggregated the industrial-disease assessments at 24%, treated as payable at the 20% rate under section 103 of the Social Security Contributions and Benefits Act 1992.