[2008] UKUT 35 (AAC)
THE UPPER TRIBUNAL Appeal No. CI 2428 2008
ADMINISTRATIVE APPEALS CHAMBER
DECISION
The appeal is dismissed. For the reasons below, the decision of the tribunal is not set aside. The appeal is referred back to the Secretary of State to consider the question of assessment of disablement.
REASONS FOR DECISION
- This is an appeal for the Secretary of State for Work and Pensions against a decision of the Sunderland tribunal on 18 03 2008 under reference 236 07 02347.
It concerns entitlement to industrial injuries disablement benefit for the prescribed disease C23 (primary neoplasm of the epithelial lining of the urinary tract). It is common ground that the appellant is suffering from a primary neoplasm of this kind.
Deciding on the presence of a "C" disease
- I am told that decision makers acting for the Secretary of State follow a standard procedure in making decisions on entitlement to this benefit. As related to "C" diseases this requires deciding, in the following order:
(1) whether the claimant was engaged in a prescribed occupation, that is, employed earner's employment as a result of which he or she was exposed to specific chemical agents
(2) If so, whether the claimant has the prescribed disease and
(3) If so, to what extent is the claimant disabled by the disease.
In this case the decision maker acting for the Secretary of State decided, by reference to evidence from the Government Chemist, that the answer to question (1) was that the appellant was not so engaged. Question (2) was not answered.
- The "C" prescribed diseases are all medical conditions caused by specified chemical agents. Most (but not all) "C" diseases do not attract the presumption that the disease is due to employment. This is provided in under regulation 4 of the Social Security (industrial Injuries) (Prescribed Diseases) Regulations 1985. C23 is excluded from that presumption. So it must be shown on the balance of probabilities that the appellant is suffering from the disease because of exposure to a particular chemical agent in a prescribed occupation.
- I am not persuaded that questions (1) and (2) can always be divided as above by a tribunal. The tribunal will often start, as here, with a claim about the presence of a particular disease. It may need to focus on the prescription relevant to the disease that the appellant claims he or she is suffering. The presence of a disease may be clear on the evidence or may itself need proof. The tribunal may need to look at question (2) at the same time as question (1). If so, it is entitled to do that.
- Unfortunately it is common ground that the appellant had a primary neoplasm of the relevant kind. That is not in question. The specific questions that arise are (a) whether the appellant was engaged in employment that exposed him in a way detailed in the prescription of occupations relevant to that disease and (b) whether that exposure is the cause of the disease.
Advice about exposure to chemical agents
- Where there are problems about identifying whether an individual was or was not exposed to a particular chemical, the practice of the decision maker acting for the Secretary of State is to seek advice from the Government Chemist. The advice in this case came from LGC (The Laboratory of the Government Chemist) by letter on 21 06 2007. This stated:
"It is true that the claimant could well have been exposed to naphthalene, benzene, benzole and tar, whilst working in coking words, as they are all products from coal. However, they are not mentioned in PD C23. The chemicals mentioned in PD 23 a, c and d are primarily encountered in manufacture of dyes, whiles C23 b relates to plastics manufacture. C23e relates to smelting of aluminium, which would also have no connection with coking works. Therefore I recommend rejection of the claim."
- This is of limited value as evidence. It is a reply to a letter sent earlier in the week, but that letter is not in evidence. The tribunal had no idea whether the Government Chemist was offering an opinion in general terms or one based on the evidence then available about the appellant's exposure to the chemicals. That is important because the letter reads as a general comment. I draw to the attention of the Secretary of State the need to ensure that where a report of any expert such as the Government Chemist is put in evidence to a tribunal, the instructions to the expert, and in particular any questions that the expert is asked to answer, must be put in evidence.
- More specifically, the letter is of limited evidential value about the specific prescription in issue here. This was C23 c. The prescription is:
"(c) exposure to 2-naphthylamine, benzidine, 4-aminobiphenyl (also called biphenyl-4-ylamine) or salts of those compounds otherwise than in the manufacture of those compounds"
All the letter states, as the Secretary of State now concedes, is that those chemical agents are primarily encountered in the manufacture of dyes. It does not say that they are not, or probably not, encountered in other activities. More specifically it does not say that that they probably are not, or probably are, encountered in the coking industry. It merely comments unhelpfully that the appellant may well have been exposed to the relevant chemical agents. In other words, it does not answer the question the tribunal must answer.
- The tribunal took into account all evidence offered by both parties on the question. In making that decision the tribunal was also entitled to rely on its medical expertise in interpreting the evidence.
- The tribunal took the clear view that the appellant's problems were, in the light of all the evidence, caused by exposure as prescribed for C23 c. Aside from the letter set out above, it received evidence from the appellant, from the employer, and from former work colleagues that he had worked for his full working life in the coking industry and that he had been exposed to particular chemicals while working there. It had a full report from a consultant urologist. That report included a specific opinion, supported by citations of the literature, about the connection between the appellant's disease and his industrial exposure. Having considered the evidence, the tribunal decided that it was more likely than not that the appellant during his work suffered relevant exposure.
- The grounds of appeal for the Secretary of State against that decision questioned the adequacy of the tribunal decision. The core of the grounds of appeal, cutting out the legal reasoning, was that the tribunal had not explained why it had not agreed with the Government Chemist. I granted permission to appeal to consider the nature of the prescription for this disease and the relevance of the terms of the evidence of the Government Chemist. I drew attention to the report of the Industrial Injuries Advisory Committee report leading to the current prescription of C23. As the appellant was not represented, I drew attention to other published evidence about this disease and its links to the relevant chemicals and activities published by the United Kingdom National Institute of Health and the US Department of Labor.
- I am pleased to say that I have now received a submission for the Secretary of State to the effect that while the Secretary of State maintains that the submission that the decision of the tribunal was inadequate, the Secretary of State now concedes that the conclusion the tribunal reached was one that it was entitled to reach on all the evidence and so should stand. As the Secretary of State no longer maintains that the decision is in error, I do not need to explore the tribunal's reasoning further or decide if it was inadequate.
- The appellant had the relevant prescribed disease. The tribunal clearly had evidence before it on which it could properly reach the decision it did reach. This was that the appellant was both employed in a relevant prescribed occupation and had the prescribed disease. Its decision on those issues is to stand. The claim must be referred back to the Secretary of State to decide on the assessment of disablement.
Dr David Williams
Judge of the Upper Tribunal
8 12 2008
[Signed on the original on the date stated]
