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DECISION OF THE SOCIAL SECURITY COMMISSIONER
The claimant's appeal is allowed. The decision of the Barrow appeal tribunal dated 27 July 2006 is erroneous in law. I set it aside and remit the case to a differently constituted appeal tribunal for determination in accordance with this decision.
1. This case raises two main issues, neither of them easy. One relates to the substantive law and the other to the composition of appeal tribunals in appeals of this sort.
2. The claimant, who is a woman born in 1965, suffered a back injury at work in October 1992, as a result of which she was incapable of work. Subsequently she was diagnosed as having developed rheumatoid arthritis and certain other conditions. It is common ground that she remains incapable of work. The substantive issue is whether her incapacity is as a result of the 1992 accident.
3. At the time of the claimant’s injury, sections 31-32 of the Social Security Contributions and Benefits Act 1992 provided for sickness benefit and sections 33-34 provided for invalidity benefit. In addition section 102, which was in Part V of the Act dealing with industrial injuries, provided that the contribution conditions for sickness benefit were deemed to be satisfied where a claimant was incapable of work as a result of ‘a personal injury of a kind mentioned in section 94(1)’ – that is to say, injury ‘by accident arising out of and in the course of his employment’.
4. The claimant did not satisfy the contribution conditions for sickness benefit but was treated as satisfying them by virtue of section 102; she was awarded sickness benefit with effect from October 1992 and was subsequently awarded invalidity benefit with effect from April 1993.
5. In April 1995 sickness benefit and invalidity benefit were abolished and replaced by short-term and long-term incapacity benefit; sections 31-35 and section 102 of the Act were repealed. The incapacity benefit regime does not contain any provision, like the old section 102, for deeming the contribution conditions to be satisfied in the case of incapacity due to industrial injuries. However, provision for existing claimants was made in the Social Security (Incapacity Benefit) (Transitional) Regulations 1995 (‘the Transitional Regulations’).
6. Regulation 17 of those Regulations provides that, where a person was entitled to invalidity benefit immediately before the changeover, their award will ‘have effect on and after the appointed day as if it were an award of long-term incapacity benefit’, but that (except as provided in regulation 31) entitlement is subject to their being ‘incapable of work as determined in accordance with Part XIIA of the 1992 Act’. Regulation 21 provides that people who (like the claimant) were entitled to a transitional award of incapacity benefit in respect of a personal injury of a kind mentioned in section 94(1) cease to be entitled to the transitional award ‘when the incapacity for work is no longer as a result of that injury’.
7. The effect of regulation 21 is (subject to regulation 21(2), which does not arise in this case) that a claimant who was awarded invalidity benefit in respect of an industrial injury loses the transitional award, even if they remain incapable of work, when their incapacity is ‘no longer as a result of that injury’; the result is that they will only continue to be entitled to incapacity benefit if they meet the contribution conditions.
8. The claimant continued to receive incapacity benefit until January 2006. In 1996 her GP gave a further medical certificate to the effect that she was unfit for work owing to rheumatoid arthritis (pages 13-14 of the papers) and in 1998 and 2002 he completed Benefits Agency forms relating to the claimant’s incapacity for work (pages 15-20); he was not asked whether her incapacity was the result of the injury she suffered in 1992. The diagnosis recorded on the forms did not include the effects of a back injury, but the GP has subsequently asserted (page 48) that the claimant is still suffering from a back injury. Incapacity benefit continued to be paid to the claimant under the 1993 award of invalidity benefit, which by virtue of regulation 17 of the Transitional Regulations, had effect as an award of long-term incapacity benefit.
9. In December 2005 a Benefits Agency doctor scrutinised the claimant’s claim and was unable to advise on the papers whether the claimant was still incapacitated as a result of the 1992 injury; he recommended an examination. The claimant was examined by a different doctor on 23 January 2006.
10. In the claimant’s case, the question whether she is incapable of work for the purposes of the Act is, at least since her examination on 23 January 2006, to be ‘determined in accordance with a personal capability assessment’ (section 171C of the 1992 Act) and, by regulation 25 of the Social Security (Incapacity for Work) (General) Regulations 1995, she is incapable of work if she scores at least 15 points in respect of descriptors for physical activities in Part I of the Schedule to the Regulations. The examining doctor found that a number of descriptors applied to the claimant (pages 22-39); she scored 27 points in respect of those descriptors (pages 41-42). Accordingly, it is common ground that the claimant remains incapable of work within the meaning of the Act.
11. The doctor also completed a ‘section 102 examination report form’ (page 43). In it he advised that the claimant’s incapacity was not a result of the 1992 accident at work, giving as his reasons (with his own underlining) that “She does continue to have some back pain, which causes part of the disability, but the majority of the problems are due to the rheumatoid arthritis….”.
12. On 13 March 2006 a social security decision-maker superseded the award of benefit with effect from the date of the medical examination (23 January 2006), on the grounds that it was the opinion of the medical examiner that the majority of the claimant’s medical problems are due to the rheumatoid arthritis and not the result of the accident at work (page 45). The claimant appealed; in May 2006 the decision was reconsidered but not changed (page 47). The claimant provided some further material and a submission from her representative (pages 48-52).
13. The appeal was heard by a chairman sitting alone on 27 July 2006 and was dismissed. The tribunal gave fairly full short reasons in the decision notice (page 55) and a fuller statement of reasons (page 57). In summary, the tribunal concluded - on the basis of the claimant’s account of the nature of her 1992 injury and the development of her arthritic condition, her GP’s references to rheumatoid arthritis rather than back strain in the medical note of 1996 and the reports of 1998 and 2002 and the opinion of the examining doctor in 2006 - that by January 2006 the effects of the 1992 accident had more or less ceased and ‘certainly that they would not be sufficient to cause the appellant to meet the personal capability assessment threshold’. In the statement of reasons the conclusion is expressed that: ‘the tribunal were not satisfied on the evidence that that the appellant’s apparently modest injury in 1992 was the continuing source of disability but rather that she met the personal capability assessment threshold … because of rheumatoid arthritis’. The statement of reasons also explains the tribunal’s reasons for hearing the case without a medically qualified panel member. I discuss them below.
The composition of the appeal tribunal
14. The sole ground of appeal (which the Secretary of State supports) relates to the composition of the tribunal - a legally qualified panel member sitting alone, rather than with a medically qualified member. I turn to that issue.
15. The composition of appeal tribunals is currently prescribed by regulation 36 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999, as amended. Regulation 36(1) begins by saying that “Subject to the following provisions of this regulation, an appeal tribunal shall consist of a legally qualified panel member”. There is no power to include other members unless the later provisions permit or require them.
16. Regulation 36(2)(a) then provides that a tribunal shall consist of a legally qualified panel member and one medically qualified panel member where
“(i) the issue, or one of the issues, raised on the appeal is whether the personal capability assessment is satisfied, or
(ii) the appeal is made under section 11(1)(b) of [the Social Security (Recovery of Benefits) Act 1997]”.
17. Regulation 36(2)(b) goes on to provide that a tribunal shall consist of a legally qualified panel member together with either one or two medically qualified members where
“(i) the issue, or one of the issues, raised on the appeal … relates to either industrial injuries benefit under Part V of the Contributions and Benefits Act or severe disablement allowance under section 68 of that Act”.
18. The statement of reasons records that the tribunal considered whether regulation 36(2)(a)(i) required a medically qualified panel member, but concluded that the issue in the appeal was not whether the personal capability assessment was satisfied – it was common ground that it was. The claimant submits (page 62) that, while the issue was not strictly whether the personal capability assessment was satisfied, the crucial issue was how it was satisfied, and points to the unsatisfactoriness of a tribunal making medical judgments without a medically qualified member. She submits that that regulation 36(2)(a) covers her case, alternatively that there has been a breach of natural justice. The Secretary of State disagrees with that but submits (page 75) that a medically qualified member is required under regulation 36(2)(b)(i) on the grounds that the case concerns a transitional award of incapacity benefit originating in an industrial accident.
19. On a literal interpretation, the regulation does have the effect that the tribunal found: the issue in the appeal is not whether the personal capability assessment is satisfied, but rather whether the claimant is disentitled to a transitional award by regulation 21(1) of the Transitional Regulations, which by its terms only applies to cases where there is incapacity for work – i.e. the personal capability assessment is satisfied. It is also difficult to see how the issue in the appeal could be said to relate to ‘industrial injuries benefit under Part V’ of the 1992 Act, as the Secretary of State suggests. Section 94(2) (which is the first section in Part V, and has never been amended) defines industrial injuries benefit as consisting of certain benefits which do not include either the former invalidity benefit nor incapacity benefit. The most that can be said is that the former section 102 (which removed the contribution requirement for sickness benefit in industrial accident cases, thereby opening the way to an award of invalidity benefit) was in Part V.
20. However, the consequence of a literal interpretation of the regulations is bizarre: a tribunal must contain a medical member where one of the issues is whether the personal capability assessment is satisfied, but may not contain one where the issue is the potentially much more difficult question, arising ex hypothesi in a case where a claimant’s disability has or may have more than one cause, as to the extent to which the disability is attributable to one cause rather than another. That seems to me to be an irrational difference in treatment between the two cases – the more so when it is borne in mind that subparagraph (ii) of regulation 36(2)(a) stipulates a medical member in an appeal under section 11(1)(b) of the Recovery of Benefits Act 1997, where the issue – broadly, whether benefit to a claimant was paid ‘in respect of’ a particular accident, injury or disease for which a third party was responsible, rather than for some other reason – is somewhat similar to the issues arising in the present appeal.
21. I do not see how a rational draftsman could, if the point were drawn to his attention, decide to provide that a medically qualified panel member must sit on appeals falling within regulation 36(2)(a)(i) and (ii) as drafted, but may not sit on an appeals dealing with regulation 21 of the Transitional Regulations. I suspect that the possibility of appeals relating to regulation 21 of the Transitional Regulations was simply overlooked when regulation 36 was drafted.
22. The legislative history of the regulations governing the composition of appeal tribunals seems to me to support that view. Before the Social Security Acct 1998 and the Decisions and Appeals Regulations, regulation 21 of the Incapacity for Work (General) Regulations provided that a social security appeal tribunal should sit with a medical assessor where one of the issues was whether a person satisfies the ‘all work test’ (the predecessor to the personal capability assessment). No provision ever seems to have been made requiring a medical assessor in cases raising an issue under regulation 21 of the Transitional Regulations; that may either have been an oversight or be explained by the existence in the then legislation of a power for a social security tribunal to direct that it should have the assistance of an assessor (section 56 of the Social Security Administration Act 1992, subsequently repealed). In a difficult case under regulation 21 of the Transitional Regulations a medical assessor could be provided by that route.
23. The Social Security Act 1998 abolished assessors – including medical assessors – and made provision instead for medically qualified members of the new unified appeal tribunal and for ‘experts to provide assistance’ to it (section 7). Regulations 36 and 50 of the Decision and Appeals Regulations, made under powers conferred by section 7, make arrangements which to some extent correspond to the arrangements in place under the previous legislation and Regulations. Regulation 36(2)(a) made provision for the medically qualified panel member – in place of the medical assessor provided for by the former provision – in cases where one of the issues is whether the all work test is satisfied; that has subsequently been amended to refer to the personal capability assessment. No special provision has been made for cases under regulation 21 of the Transitional Regulations, none having existed before. Regulation 50 makes provision for expert assistance to be provided by way of evidence from an expert drawn from the panel of persons qualified to be tribunal members.
24. Any rational justification for the difference in treatment before 1999 of appeals relating to the satisfaction of the personal capability assessment and appeals relating to regulation 21 of the Transitional Regulations seems to me to have disappeared as a result of the reforms introduced by the Social Security Act 1998 and the amendments to the Decisions and Appeals Regulations.
25. In the amended regulation 36 the Secretary of State has responded to the abolition of medical assessors and the appointment of medically qualified panel members by providing in regulation 36(2)(a)(i) that appeals relating to satisfaction of the personal capability assessment should now be heard by a tribunal including a medically qualified member; he has responded to the abolition of medical appeal tribunals, to which appeals under section 11(1)(b) of the Recovery of Benefits Act had formerly been referred under section 12 of that Act, by providing in regulation 36(2)(a)(ii) that such appeals should also be determined by a tribunal including a medically qualified member. If he had been reminded of the potential for appeals in relation to regulation 21 of the Transitional Regulations, it does not seem to me that the Secretary of State could rationally have failed to make similar provision for them.
26. The clear intention disclosed by section 36(2)(a) is to provide for appeals raising issues which relate to satisfaction of the personal capability assessment to be heard by a tribunal including a medically qualified panel member. It can only be by oversight that the Secretary of State failed to make that provision for appeals raising issues of what has caused a claimant to satisfy the personal capability assessment, such as arise under regulation 21 of the Transitional Regulations. The consequence of his oversight is that the only form of medical input into tribunal decision-making in such an appeal is expert assistance under section 7 of the 1998 Act and regulation 50 of the Decisions and Appeals Regulations – a modified form of the former provision for assessors which had, by necessary implication, been regarded by Parliament as less satisfactory than the new provision for medically qualified panel members in section 7 of the 1998 Act. And that is despite the fact that appeals in relation to regulation 21 have the potential to be raise more difficult medical issues than appeals relating to satisfaction of the personal capability assessment, since they involve not merely findings as to whether descriptors are satisfied but findings as to which of which of two possible causes has led the descriptor to be satisfied.
27. The approach to statutory interpretation laid down by the House of Lords in the line of cases including Inco Europe Ltd and Others v. First Choice Distribution and Others  UKHL 15  1 WLR 586 requires me to give effect to the intention disclosed by the regulation. The applicable principles were set out in the speech of Lord Nicholls as follows:
It has long been established that the role of the courts in construing legislation is not confined to resolving ambiguities in statutory language. The court must be able to correct obvious drafting errors. In suitable cases, in discharging its interpretative function the court will add words, or omit words or substitute words. Some notable instances are given in Professor Sir Rupert Cross' admirable opuscule, Statutory Interpretation, 3rd ed., pp. 93-105. He comments, at page 103:
'In omitting or inserting words the judge is not really engaged in a hypothetical reconstruction of the intentions of the drafter or the legislature, but is simply making as much sense as he can of the text of the statutory provision read in its appropriate context and within the limits of the judicial role.'
This power is confined to plain cases of drafting mistakes. The courts are ever mindful that their constitutional role in this field is interpretative. They must abstain from any course which might have the appearance of judicial legislation. A statute is expressed in language approved and enacted by the legislature. So the courts exercise considerable caution before adding or omitting or substituting words. Before interpreting a statute in this way the court must be abundantly sure of three matters: (1) the intended purpose of the statute or provision in question; (2) that by inadvertence the draftsman and Parliament failed to give effect to that purpose in the provision in question; and (3) the substance of the provision Parliament would have made, although not necessarily the precise words Parliament would have used, had the error in the Bill been noticed. The third of these conditions is of crucial importance. Otherwise any attempt to determine the meaning of the enactment would cross the boundary between construction and legislation: see Lord Diplock in Jones v. Wrotham Park Settled Estates  A.C. 74, 105. In the present case these three conditions are fulfilled.
Sometimes, even when these conditions are met, the court may find itself inhibited from interpreting the statutory provision in accordance with what it is satisfied was the underlying intention of Parliament. The alteration in language may be too far-reaching. In Western Bank Ltd. v. Schindler  Ch. 1, 18, Scarman L.J. observed that the insertion must not be too big, or too much at variance with the language used by the legislature. Or the subject matter may call for a strict interpretation of the statutory language, as in penal legislation.
28. The situation in the present case is different from that in the Inco case, where unfortunate wording of an amendment to the Supreme Court Act 1981 consequent upon the replacement of the Arbitration Act 1979 by the Arbitration Act 1996 had the literal effect of making substantive amendments to the law and there were ample indications elsewhere in the text that no such amendment was intended. The House was satisfied that the draftsman knew what he wanted to do and simply used inept words. There is no indication in the text of regulation 36 that the Secretary of State had in mind appeals relating to regulation 21 and simply used the wrong words. It is more likely that those involved with the redrafting of the regulation did not have such appeals in mind at all.
29. But I remind myself that what I am engaged in is an exercise in statutory interpretation; the relevant intention is the intention of the Secretary of State as legislator revealed by the terms of the regulation he has made, not the subjective state of mind of individuals within his Department. In that regard I must in my judgment impute to the Secretary of State not only an intention to make the provision that he has literally made for appeals relating to satisfaction of the personal capability assessment but also an intention to act rationally. I have concluded that the only rational course could be to make similar provision for the present category of appeal.
30. On that basis I am (in Lord Nicholls’s words) ‘abundantly sure’ that the Secretary of State intended to provide for a medically qualified panel member in any appeal relating to satisfaction of the personal capability assessment – in the claimant’s representative’s words, appeals as to how it is satisfied as well as appeals as to whether it is satisfied. The only explanation for his failure to do so in literal terms can be inadvertence. The substance of the provision that he would have made is also clear: provision (however worded) to the effect that appeals relating to regulation 21 of the Transitional Regulations should be heard by a tribunal composed of both a legally qualified and a medically qualified panel member. The insertion of words to that effect would not in my judgment contravene the guidance of Scarman LJ in the Western Bank case cited by Lord Nicholls.
31. Since the tribunal – very understandably – followed a literal interpretation of regulation 36 where the interpretation giving effect to the legislative purpose is in my judgment different, the tribunal erred in law and was not properly constituted and its decision must be set aside. I must remit the case to an appeal tribunal which must be composed of a legally and medically qualified panel member in accordance wither the intention of regulation 36(2)(a).
32. I do not accept the submission of the Secretary of State’s representative that regulation 36(2)(b) should be interpreted as covering the case. It may be that those involved in the drafting of the amended regulation thought (erroneously) that invalidity/incapacity benefit awarded as a result of an industrial injury benefit was an ‘industrial injuries benefit’ within the meaning of Part V of the 1992 Act, but (whatever they thought) I cannot find in the terms of the legislation any indication of an intention that it should be so regarded. Nor do I consider that the intention to act rationally that I must impute to the Secretary of State as legislator required him to make the same arrangements for incapacity benefit awarded as a result of an industrial accident as for industrial injuries benefits properly so called. It seems to me that the rational course was to make the same provision as for other issues relating to the personal capability assessment.
The question for the appeal tribunal
33. The evident intention of regulation 21 of the Transitional Regulations is that claimants should remain entitled to a transitional award for so long as they continue to meet the old condition of entitlement in section 102 - that their incapacity for work is as a result of an industrial injury. Regulation 21 only comes into play in a case where the claimant remains incapable of work but there is an issue as to whether that is still as a result of an industrial injury. That issue will only arise where (as in the present case) incapacity for work is or may be attributable in whole or part to events subsequent to the industrial injury.
34. At least as from the date of her examination on 23 January 2006, the question whether the claimant was incapable of work resolved itself into the question whether she scored 15 points in the personal capability assessment (see paragraphs 6 and 10 above). The replacement of the straightforward concept of ‘incapable of work’ by the personal capability assessment, based on activities, descriptors and counting of points, has undoubtedly complicated the issue arising under regulation 21.
35. It seems to me that the a tribunal hearing an appeal relating to regulation 21 in a case such as this must ask itself what descriptors would be satisfied, and what score obtained, under the personal capability assessment as a result of symptoms attributable to the industrial injury, ignoring symptoms attributable to the later cause. If the answer is that a score of 15 or more would be obtained, then the claimant retains entitlement to the transitional award. In that event it does not matter whether the claimant also obtains a score of 15 or more (whether by virtue of the same or a different set of descriptors) as a result of the later cause: it could not be right that a person who still has incapacity resulting from the industrial injury should lose transitional entitlement simply because they have extra disabilities.
36. More difficult are cases where a claimant obtains a score of less than 15 points as a result of symptoms attributable to the industrial injury. For regulation 21 to be play, the claimant will have an overall score of 15 or more (since otherwise she would simply not meet the condition in transitional regulation 17(2)). The tribunal appears to have reasoned that a claimant would lose transitional entitlement in any case where the score attributable to the industrial injury was less than 15. However, such cases may fall into one or other of two categories.
37. First, a claimant may have a score of less than 15 as a result of symptoms attributable to the industrial injury but a score of 15 or more (whether by virtue of the same or a different set of descriptors) as a result of symptoms attributable to the later cause; in that event it seems to me that their satisfying the personal capability assessment is entirely as a result of the later cause and not as a result of the industrial injury.
38. Alternatively, the claimant may have a score of less than 15 points attributable to the industrial injury and a score of less than 15 points attributable to the later cause, giving a combined score of 15 or more. In that event their satisfying the personal capability assessment incapacity cannot be said to be ‘as a result of’ either cause taken in isolation, but on the other hand they would not satisfy the personal capability assessment at all were it not for the industrial injury. Like the former section 102, the wording of transitional regulation 21 is ambiguous as to whether the industrial injury must be a complete cause of the incapacity for work or whether it is sufficient that it be a necessary and contributory cause. The treatment of issues of causation elsewhere in Part V of the Contributions and Benefits Act does not seem to me to assist because the different structure of the injuries benefit provisions.
39. I am confident that the words ‘as a result’ in the transitional regulation are intended to have the same meaning as in section 102; the issue is therefore whether section 102 was intended to qualify a claimant for sickness benefit and thereafter for invalidity benefit without meeting contribution conditions where their continuing incapacity for work was partly but not wholly as a result of an industrial injury.
40. As to that, it seems to me that in a case where the combined effect of an industrial injury and other pre-existing¬ disabilities was to make a claimant incapable of work, the incapacity would be as a result of the industrial injury and it would be no answer to say that the effects of the industrial injury would not have been sufficient to make the claimant incapable of work if he or she had not had the pre-existing disabilities as well. Conversely, where a claimant recovered partly from the effects of the industrial injury but remained incapable of work as a result of the combination of the continuing effects of the injury and of those of a subsequently acquired condition (where neither set of effects was sufficient on its own to incapacitate the claimant), it seems to me that the claimant would still be correctly described as incapable of work as a result of the industrial injury.
41. Accordingly, it will in my judgment be right for the new tribunal to dismiss the appeal if they find that the claimant’s situation is as described in paragraph 37 above; otherwise they should allow it. In the event of the appeal being dismissed, I do not consider it necessary to enquire whether a change of circumstances occurred any earlier than 23 January 2006, since no issue of recovery of previously paid benefit arises and the Secretary of State’s decision-maker was content to supersede only with effect from that date.
(signed on the original) Nicholas Paines QC
14 May 2007