Appeal from decision of medical appeal tribunal on a question of law decision of the social security commissioner




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Commissioner's File: CI 1496/99
Mr Commissioner Williams
29 November 1999

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT 1992


SOCIAL SECURITY ADMINISTRATION ACT 1992

APPEAL FROM DECISION OF MEDICAL APPEAL TRIBUNAL ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Claim for: Disablement Benefit
Appeal Tribunal: Liverpool MAT
Tribunal date: 20 August 1998

1 I allow the claimant's appeal against the decision of the Liverpool medical appeal tribunal on 20 August 1998 that the claimant had suffered unforeseen aggravation of the results of the industrial accident on 13 November 1974, and that the level of disablement is 20% from 22 June 1997 for life. The appeal was brought with leave of the Commissioner. For the reasons given below, that decision was erroneous in law. Accordingly I set the decision of the tribunal aside. I refer the case to a new tribunal to determine the appeal in accordance with the following directions.

2 The claimant's appeal is supported by the Secretary of State's representative.

The claimant submitted that the decision of the tribunal was inadequate to explain the decision of the tribunal. The Secretary of State's representative agreed, and suggested that I allow the appeal under section 14(7) of the Social Security Act 1998. The claimant had no further observations on this submission. I would have accepted the submission but for the need to deal with the application to this case of the Social Security Act 1998. Save for that issue, I record my acceptance of the submissions and I set aside the decision of the tribunal for those reasons. The attention of the new tribunal is drawn to the grounds of appeal for the claimant (set out at document 116 - 117) and the submission of the Secretary of State's representative supporting the appeal (at document 124 - 125) and to the decisions of Commissioners to which they refer.

3 There are major changes in the legislation dealing with the procedure for decision making and appeal in cases such as this with effect from 5 July 1999. These changes included the repeal of the provisions under which a claimant could base a claim for a review of the award made for an industrial accident on unforeseen aggravation. I issued a direction on 9 September 1999, and a further direction on 20 October 1999, directing the Secretary of State to make a submission on the present status of this case and the provisions to be applied to it. I appended an analysis of the relevant provisions of the legislation as they applied to cases such as this, and indicated:

"On that basis, my provisional decision is that the decision of the tribunal should be set aside and the appeal should be referred to a new tribunal to determine for itself whether there was any unforeseen aggravation in this case".

I also indicated on that basis that:

"The appeal would be directed to a tribunal constituted and operating under the new provisions under the 1998 Act with directions to treat the appeal as an appeal against a decision of the Secretary of State refusing to review the previous decision under section 47. The tribunal would then deal with the matter as a decision of the Secretary of State made as if under section 47(4) of the 1992 Act but by virtue of section 8(1)(c) of the 1998 Act. The tribunal would be directed to determine whether in its view the adjudicating medical authority was right to conclude that there was no unforeseen aggravation. If it concluded otherwise it would reach its own decision as invited by the Secretary of State in the submission to the original tribunal. Its hearing and decision would then be treated as relating to an appeal against a section 8 decision."

4 The Secretary of State's representative, having sought legal advice, now submits that he agrees with my provisional conclusion. That submission was made slightly late, but I waive any resulting irregularity. The Secretary of State's representative submits that "as the appeal in this case was against a decision prior to the time the Social Security Act 1998 received royal assent, then it is submitted that it should be determined under the former legislation". On behalf of the Secretary of State he reserved the position on appeals from decisions made after that date. In this case the decision under appeal to the tribunal was made on 16 September 1997. Without repeating the analysis in the direction or commenting on that reservation, I accept that submission in this case.

5 I therefore direct the tribunal to which this is referred to decide the case under section 47(4) of the Social Security Administration Act 1992 on the general basis set out in paragraph 3. The tribunal should note that in this case the adjudicating medical authority concluded that there was unforeseen aggravation and the Secretary of State's representative made an open submission to the tribunal.

6 I waive any irregularity that arises because I did not seek the comments of the claimant and his representative on the submissions about the new legislation. I did not do so as my decision and directions preserve the rights of the claimant in this appeal on the same basis as before the introduction of the Social Security Act 1998.

7 The claimant and his representative should note that the new procedures for tribunals include specific procedures under which claimants are to notify the clerk about attending for an oral hearing. I have directed that this case be reheard by a tribunal so that there may be a further oral hearing. The tribunal and parties should ensure that the procedure does not prevent this, unless the claimant does not wish to attend a further oral hearing. In particular, the claimant should ensure that his representative is informed as soon as possible of all directions by a tribunal clerk relating to the rehearing, and that the clerk is informed promptly of any request for an oral hearing.



Signed

D Williams
Commissioner
29 November 1999


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