NP v Secretary of State for Work and Pensions (II)

For prescribed disease D7, occupational asthma must be caused by exposure to a sensitising agent. Asthma which pre-existed employment and was merely aggravated by workplace exposure is work-aggravated asthma, not occupational asthma, and falls outside the prescribed-disease scheme.

A tribunal may reach that factual conclusion from the history and symptom pattern where detailed clinical data are unavailable, provided it gives adequate reasons. A failure to explain whether an agent is sensitising will not justify intervention unless it could have made a material difference. Regulation 36(1) of the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985 bars a late occupational-asthma claim unless an exception applies.

The appellant claimed industrial disablement benefit for occupational asthma under prescribed disease D7. The Secretary of State decided that he did not have occupational asthma. The First-tier Tribunal dismissed his appeal on 8 February 2019, under number SC188/17/02715, finding that his asthma was constitutional and work-aggravated rather than caused by a prescribed sensitising agent.

Permission to appeal was granted on two limited grounds: whether a person with pre-existing asthma could become sensitised to a workplace agent, and whether the First-tier Tribunal adequately explained why coal dust was not an ‘other sensitising agent’. The Secretary of State initially supported the appeal but later submitted that any error was immaterial. The Upper Tribunal considered the distinction between work-aggravated and occupational asthma, and the effect of the time limit in the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985.

1. Appeal dismissed. The First-tier Tribunal’s decision involved no material error of law. Its finding that the appellant had work-aggravated asthma, rather than occupational asthma for prescribed disease D7, was open to it on the evidence.

2. Work-related asthma includes work-aggravated asthma and occupational asthma. The former is pre-existing asthma aggravated, but not caused, by workplace exposure. Occupational asthma is caused by an inhaled workplace agent and may involve sensitisation or acute irritant exposure. Only the sensitisation form was relevant to D7 on this claim.

3. The First-tier Tribunal adequately explained why it found a general allergic response rather than sensitisation to a specified agent. It relied on gradually worsening symptoms rather than an acute response on exposure, and on the appellant’s consultant’s inability to identify asthma worsened by latex or pharmaceutical agents. Applying Evans v Secretary of State for Social Services, R(I) 5/94, its compressed reasons were sufficient.

4. For D7, a sensitising agent is one that causes the asthmatic condition, rather than merely irritates the chest and worsens existing asthma. The tribunal’s statement that coal dust was not such an agent reflected the prevailing medical view; in any event, an inadequate explanation would not have been material.

5. Even if coal dust had been a sensitising agent, regulation 36(1) imposed a ten-year limit from the latest relevant prescribed employment. The appellant’s coal-mining employment ended decades before his January 2017 claim, and neither exception applied. Accordingly, the coal-dust issue could not affect entitlement.

• Upper Tribunal (Administrative Appeals Chamber): appeal dismissed; the First-tier Tribunal decision was held to involve no material error of law.

• First-tier Tribunal (Social Entitlement Chamber): dismissed the appeal against the refusal of industrial disablement benefit for prescribed disease D7.