Upper Tribunal (Administrative Appeals Chamber)

 

IN THE UPPER TRIBUNAL File No: CI 1386/09

Administrative Appeals Chamber

10 June 2010

 

TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007

SOCIAL SECURITY ACTS 1992-2000

 

APPEAL FROM DECISION OF FIRST-TIER TRIBUNAL

 

Appellant: Secretary of State for Work and Pensions

Respondent: [the claimant]

Claim for: Disablement Benefit

First-tier Tribunal: Nottingham

Tribunal case ref: 045/08/02551

Tribunal date: 23 January 2009 (reasons issued 6.03.09)

 

 

DECISION OF THE UPPER TRIBUNAL

 

The Secretary of State’s appeal is allowed. The first-tier tribunal’s decision is set aside as erroneous in law and replaced under section 12(2)(b) of the Tribunals, Courts and Enforcement Act 2007 with this decision, that on her claim of 13 February 2008 for disablement benefit the claimant’s medical condition has not been shown to be within the relevant disease prescription of Prescribed Disease No A4 and accordingly the Secretary of State’s decision of 7 August 2008 refusing the claim was correct and is confirmed.

 

 

REASONS

 

Mr P L Howell QC:

 

1. This appeal by the Secretary of State must be allowed, as in my judgment the first-tier tribunal which determined the case in the claimant’s favour at Nottingham on 23 January 2009 (Mr J Marston, chairman and Professor S P Allison, consultant medical member) misdirected itself in holding the condition of cervical torticollis from which she has suffered since developing it at work some ten years ago falls within the legally permitted scope of the prescription of Disease No. A4 “Task-specific focal dystonia” as substituted in Schedule 1 to the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations SI 1985 No. 967 from 6 April 2007. I therefore set the tribunal’s decision aside and, as the result of the case depends entirely on that question of legal definition, exercise the power in section 12(2)(b) Tribunals, Courts and Enforcement Act 2007 to substitute the decision set out above.

2. The claimant is a lady now aged 55 who has the misfortune to suffer from a condition known as cervical or spasmodic torticollis, which is an abnormal contortion of the muscles of the neck causing her to hold her head in an awkward position permanently twisted to one side. This is a well-recognised but happily not very common medical condition, one of a group now known collectively by the name “dystonia”. Their precise causes are as yet imperfectly understood though it appears from the medical evidence and literature before me to be common ground that they are to do with some malfunction in the areas of the central nervous system controlling the actions of the muscles, so these are organic neurophysiological conditions, not psychological in origin. Unhappily in the form in which the claimant’s condition has developed it has led, in the tribunal’s words, to a debilitating and permanent twisting of the neck causing pain and restrictions of movement, and is incapable of relief by surgery or manipulation.

3. The tribunal and the departmental medical examiner both accepted that the claimant’s condition was work-related, in the sense that it was brought on by the job she used to do in a building society which involved sitting behind a counter to deal with customers in front of her but in the course of that having to turn her neck and upper body frequently to look at and operate a computer screen and keyboard positioned to one side. It goes without saying that a permanent condition of that nature has a substantially disabling effect as well as being distressing and embarrassing; and the tribunal assessed the claimant’s resultant level of disablement at 30%, a figure that has not been questioned in this appeal.

4. What is at issue in this appeal, as already indicated, is whether the medical condition which gives rise to that disablement is within the terms of the prescription of Disease A4 at all. Industrial injuries benefits for illnesses or injuries other than accidents can only become payable under section 108 Social Security Contributions and Benefits Act 1992 if the medical condition giving rise to the claimed disability falls within the specific list of diseases or personal injuries expressly prescribed in relation to the person’s employment by the regulations made by the Secretary of State under that section as from time to time in force.

5. The cardinal condition for any disease or injury to be included in that list, and before any question of benefit becoming payable in respect of it under the statutory scheme can arise, is that in section 108(2) as follows:

“(2) A disease or injury may be prescribed in relation to any employed earners if the Secretary of State is satisfied that –

(a) it ought to be treated, having regard to its causes and incidents and any other relevant considerations, as a risk of their occupations and not as a risk common to all persons; and

(b) it is such that, in the absence of special circumstances, the attribution of particular cases to the nature of the employment can be established or presumed with reasonable certainty.”

6. For many years before 6 April 2007 the medical condition constituting Prescribed Disease A4 was specified in Schedule 1 to the Regulations as:

“Cramp of the hand or forearm due to repetitive movements”

which was specified in relation to

“any occupation involving prolonged periods of handwriting, typing or other repetitive movements of the fingers, hand or arm”.

That formulation had been introduced in 1958 to replace three more specific occupational prescriptions of telegraphists, writers and twisters “cramps” originally prescribed under the Workmen’s Compensation Scheme going back to 1908, the common feature of such conditions being that they were

“characterised by spasm or other disordered action of muscles used in the performance of duties involving rapid and finely controlled movements of the hand of a repetitive nature”:

see paragraph 32 of the report of the Industrial Injuries Advisory Council on the review of the Prescribed Diseases Schedule, Cmnd 416, April 1958.

7. It is common ground, and the tribunal expressly so held, that the claimant’s condition of torticollis could not have met the terms of the prescription in the pre-2007 form because it is her neck muscles that are affected by the muscular contraction or distortion, and not her hand or arm. What gives rise to the question in this appeal is the alteration that was made from 6 April 2007 to the specification of Disease A4 in the first column of the Schedule (by the Social Security (Industrial Injuries) (Prescribed Diseases) Amendment Regulations 2007 SI No. 811) to “Task-specific focal dystonia”. The claim in this case was made on 13 February 2008 and that substituted wording is the only form of the disease prescription in point. On 20 May 2008 a determination was given on behalf of the Secretary of State (pages 14 to 15 of the appeal file) accepting that the claimant’s work at the building society counter had been within the occupational part of the prescription in the second column, the terms of which (referring to repetitive movements of the fingers, hand or arm) were left unaltered in 2007. Thus everything depended on whether her diagnosed medical condition was within the altered terms of the disease prescription in the first column.

8. The Secretary of State rejected the claim on 7 August 2008 on the ground that it did not, and that Prescribed Disease A4 continued under the new wording to be limited to forearm or hand disorders and did not extend to cervical conditions. Upon appeal to the tribunal this was held wrong and that the claimant’s condition of cervical dystonia fell squarely within the new terms of the prescription even though it would not have been within those of the old. In its clear and entirely sufficient statement of reasons for the decision issued to the parties on 6 March 2009 at pages 64 to 65 the tribunal said that:

“Unusually, here the focal dystonia is cervical in nature and did not affect the hands or arms even though the activity was associated with her job as keyboard operator, data inputter and cashier in the building society which satisfied the prescription. The condition arose from the repeated movements of the upper body in connection with the entry of data using a keyboard and screen … As a matter of law the tribunal concluded that this fell within the clear words of the (revised) prescription even though it would not have fallen within the old version of hand or forearm cramp or writer’s cramp”.

9. The Secretary of State appealed against that on the ground that the finding that the claimant was suffering from Prescribed Disease A4 was not one open to the tribunal to make, as even under the revised wording a “task-specific focal dystonia” in the sense in which those words were used in the regulation would only affect the hand or forearm and as the tribunal clearly recorded that the claimant’s hands and arms were not affected, the terms of the prescription could not be satisfied.

10. It is common ground, and beyond dispute, that the claimant’s condition of cervical or spasmodic torticollis is a “dystonia” which is a general term in use from the early twentieth century (derived from the Greek dys- bad, or abnormal, and tonos a strain, muscle or sinew) to describe conditions involving abnormal and sustained spasm of muscle contraction which distorts the part of the body concerned into an unusual and unintended, often painful, posture. Nor is there any dispute that her condition is a “focal” dystonia, which means merely that it originates from and is concentrated in one particular part of the body (her neck) as distinct from being a generalised all-over condition. (It appears from the medical literature produced to me that generalised forms of dystonia do exist, though fortunately they are very rare: cervical dystonia, the type the claimant has, affecting the neck muscles, is the most common form of focal dystonia.)

11. I directed an oral hearing of this appeal to hear argument on the proper approach to the construction of “task-specific focal dystonia” in the new form of the prescription: in particular whether it was right, as the terms of the Secretary of State’s appeal implied, to read this expression as if it still contained the words “of the hand or forearm” as its predecessor had done, and what was the proper meaning of “task-specific” in this context. Leo Scoon of the solicitor’s office, Department for Work and Pensions appeared for the Secretary of State and Robert Lazarus of Counsel, assisted by Asma Nizami, appeared for the claimant pro bono under the Free Representation Unit scheme. In addition, Ms Clare Leris MBBS FRCS, since 2005 a medical policy adviser to the Department for Work and Pensions, who has made a particular study of dystonias (though her main surgical experience and publications while in practice were in the field of breast cancer surgery), attended the hearing and gave evidence to assist me on the medical and scientific background to the questions I had to decide, on which she was cross-examined by Mr Lazarus. I record my thanks to all of them for the careful way in which the case was presented to me and the amount of work they had all obviously put in.

12. On behalf of the Secretary of State Mr Scoon submitted that a “task-specific focal dystonia” within the true meaning of the prescription was in practical terms limited to the same kind of conditions as had always been in it, affecting the hand or forearm and related to the kind of repetitive hand or arm movements referred to expressly in the second part of the prescription. These did not include cervical dystonia, where both the nature of the condition itself and the bodily movements involved in or giving rise to it were quite different and outside the proper intendment of the expression “task-specific”. He submitted that it would be right for me to follow the longstanding practice of the Commissioners in taking account of the relevant report of the Industrial Injuries Advisory Council as an aid to construction in determining what the new wording of the prescription was aimed at (the Council’s report reviewing the prescription of “Work- related Upper Limb Disorders”, Cm 6868, July 2006) and that when one did so it became speedily apparent that the only reason leading to the change in the wording of the diagnostic part of the prescription was a perceived ambiguity in the word “cramp”, and thus the need to emphasise that the prescription referred only to the serious medical condition of dystonia involving sustained muscle contraction and twisted abnormal postures of the part affected, as distinct from the kind of temporary cramp or muscle fatigue that anyone can get from time to time.

13. His argument derives support from Ms Leris’s evidence of her own understanding that “task-specific” in this medical context limited the types of dystonia being referred to to those originating from or associated with the performance of finely controlled movements of a repetitive nature of which the hand or arm movements involved in skilled tasks, such as operating a keyboard or a precision machine, or playing a musical instrument, were typical; and quite different in kind from the more gross muscular movements involved in such actions as turning the neck, head or other party of the body. To confirm that this was the generally accepted sense of the term in this context Ms Leris produced a comprehensive review of the relevant medical literature by Drs Torres-Russotto and Perlmutter titled “Task-specific Dystonias” (Annals of the New York Academy of Science October 2008 1142: 179-199) which begins by stating that

“Task-specific dystonias present as focal excessive muscle contractions that develop in parts of the body involved in highly skilled, overlearned tasks such as writing, typing, or playing a musical instrument and occur almost exclusively during the performance of those activities”.

Subsequent passages in the review article examining the recorded cases of such dystonia in published medical literature appear to bear out that the term in that sense is not used to refer in general to cervical dystonia at all, even though this is the most common form of focal dystonia. Indeed the article records that the authors found only one cervical dystonia case report which they felt able to describe as “clearly task-specific”. That was an unfortunate patient who had lost both of his arms but had learnt to write and draw by holding a pen with his mouth: after 20 years of frequent and extensive writing he had developed slowly progressive cervical dystonia associated with the finely-controlled (and for that part of the body, high unusual) activity this had involved.

14. On behalf of the claimant Mr Lazarus submitted there were no grounds for interfering with the tribunal’s decision. The terms of the prescription from 6 April 2007 onwards were perfectly clear and unambiguous and had undoubtedly changed the ambit of PDA4 by removing the previous restriction to conditions of the hand or forearm. Where the Schedule restricted conditions to those affecting particular parts of the body it said so expressly, and evidence whose purpose was in substance was to persuade me of the subjective intention or policy of the Advisory Council or the Secretary of State as to what his new wording meant was of course inadmissible. The disabling condition suffered by the claimant was admitted to be within the description “focal dystonia”, and there could be no ground for excluding it from the epithet ”task-specific” when the tribunal had expressly found in her favour that the condition had been brought on by, and arose from, the specific tasks she had been required to perform at work namely the repeated movements of the upper body in connection with the entry of data using a keyboard and screen, involving having to twist and turn her neck while her body and arms would remain facing forwards towards a customer.

15. It was not disputed that this work brought her within the occupational part of the prescription in the Schedule and she was thus squarely within the terms of entitlement; as she had the benefit of the tribunal’s express findings in her favour on the question of the work having caused her disability, as well of course as the statutory presumption under regulation 4 of the Prescribed Diseases Regulations (which applied to Disease A4) that the development of her disorder had been due to the nature of her employment. There would be no absurd consequences from construing “task-specific focal dystonia” so as to include cases such as the present one, since if some other person in the prescribed occupation should happen to develop a cervical dystonia which was found on the medical evidence to be unrelated to the tasks performed in their employment then the presumption would simply be rebutted, and they would not get an undeserved benefit.

16. I found both arguments persuasive, and I have not found the question on the meaning of the new wording an easy one to resolve. Indeed I have to confess to some puzzlement and exasperation, which I think may perhaps have been shared by at least some of those who appeared before me, that it should have become necessary to resolve it at all: since no one was aware of any actual practical difficulty having arisen from the old form of the prescription of Disease A4, and even if there had been some problem with the continued use of the old term “cramp” nothing would have been simpler or more unambiguous than to retain the following few words “of the hand or forearm” after the new term “dystonia” if that was the Secretary of State intended.

17. My decision in this case must of course be given in accordance with the ordinary principles of statutory construction applied to the words actually used, but I would preface it by saying that whether my decision on that basis is right or wrong the Secretary of State could even now save a good deal of potential difficulty for his own department and for tribunals in the future, and even more importantly misunderstandings, frustration and disappointment for claimants with these distressing conditions, by simply reintroducing those five words into the new form of the prescription so as to make it clear again. I was left in no doubt from the material before me that this would have given effect to the actual subjective intention, both of those responsible for the amending instrument and of the Advisory Council on whose recommendation it was based. Indeed on reading paragraph 78 of the 2006 report one is tempted to wonder whether the repetition of those five words might just have been omitted from the reformulation by accident. The actual terms of the recommendation are contained in the single sentence

“The term ‘cramp’ is an ambiguous one, so the description of the condition should be replaced in the Schedule by the words ‘task-specific focal dystonia’.”

and if in that sentence the single two-letter word “in” had preceded “the description” and the Schedule reworded accordingly, the Council’s reasons for suggesting a change would have been exactly and accurately met and none of the trouble that has arisen in this case would have happened.

18. Setting that aside however and turning back to the issue before me, I have concluded that Mr Scoon’s arguments are for the most part to be preferred and that cervical dystonia of the kind suffered by this claimant is not within the true scope of Disease A4 “Task-specific focal dystonia” as now prescribed. I say this for several reasons, together cumulative and decisive even if none is individually overwhelming.

19. In the first place Ms Leris’s evidence, supported by the review article she produced (whose senior author is Professor of Neurology at Washington University, St Louis, USA, and an expert in the field of dystonias) does appear to me to establish that in a specialised medical context such as this, the term “task-specific” refers to dystonic conditions which relate to muscles involved in performing skilled fine motor tasks such as those of the fingers, hands and forearm by keyboard operators, craftsmen and musicians, plus the facial muscles in the case of wind instrumentalists; not as a general term so as to include dystonias that relate to the larger, less specific or finely-controlled muscular movements such as turning one’s head or neck or twisting around in a chair. Those movements are more properly described in this context as “actions”, being of a nature that occur generally as part of everyday life and in any occupation, not particularly associated with some specific occupational task.

20. As already noted, the review of the specialist literature in that article refers to only one recorded instance of a cervical dystonia as “task-specific” and makes it clear that the kind suffered by the claimant in this case is not within that exceptional category and thus not within the term as there used: noting for example that “writer’s cramp and laryngeal dystonias are the most common forms of task-specific dystonias” which has to mean cervical dystonia is excluded, since it is established to be the most common form of focal dystonia (cf. Dashtipour et al, “Cervical Dystonia”, Journal of Pharmacy Practice 2007, 449-457). Mr Lazarus suggested the term was capable of a wider meaning in general medical usage, but I accept Ms Leris’ evidence that while it could on occasions be used a little more loosely than she would herself regard as correct (she limited it to dystonias of the hand and possibly the face) accepted medical use of the term in this somewhat specialised context would not extend more broadly than the way in which it was used in Dr Torres-Russotto’s article, so even at its loosest was not apt to include a cervical dystonia of the type suffered by the claimant.

21. In support of that suggestion Mr Lazarus referred both her and me to a 1995 research article with the title “Physiological Study of Cervical Dystonia. Task-specific abnormality in contingent negative variation” (Kaji et al, 1995 Brain 118 511-522: a copy extract was before the first-tier tribunal at page 35 of the file) as demonstrating use of the term “task-specific” as apposite to cervical dystonia, but I agree with Ms Leris that this did not in fact make his point. While the science involved in the laboratory experiments described is well beyond me it is clear that the “tasks” being referred to were very simple standardised actions the subjects were required to perform in the laboratory such as moving their head or stretching their fingers, so that minute variations in the electrical impulses in their brains could be measured and compared between those suffering from cervical dystonia and others. The use of “task-specific” to describe variations in the measurements according to the laboratory tasks being performed does not mean the authors were suggesting or implying cervical dystonia itself should be be categorised as a “task-specific dystonia” for the present purpose. On the contrary the article seemed to me to underline Ms Leris’ evidence by differentiating on the final page between occupational cramps involving “skillful motor acts”, and cervical dystonia which is referred to as an example of “disturbance of the most frequently used motor subroutines in everyday life, such as those controlling ... head position”.

22. To conclude on this aspect, in none of the evidence or material produced to me or that I have managed to find for myself (including in particular the material published by the Dystonia Society, the charity dedicated to providing information and support to everyone affected by dystonia in the United Kingdom, which publishes much useful information for sufferers and the general public) was I able to identify any evidence of a medical usage of the term “task-specific” as apt to refer generally to cervical dystonia. For example the website of the Dystonia Medical Research Foundation in North America contains a glossary which defines “task-specific” as

“A term used to describe forms of dystonia such as writer’s cramp and musician’s dystonia that occur only when the individual is perfoming a specific task (such as writing or playing a musical instrument)”

but nowhere uses the term to refer to cervical dystonia or suggests it could be regarded as within that category. This must I think support Ms Leris’s evidence that in this context the term refers to the finer skilled motor “tasks” involved in specific forms of activity, not the more general everyday muscular movements, such as those involved in turning your head, that are normally universally acquired as part of a person’s natural development and not as a skill that is consciously learned or typically occupational.

23. As Mr Lazarus towards the end of his argument admitted and indeed was driven to submit, to construe “task-specific” in a less restricted sense as extending to any action or muscular movement a person was required to perform would really result in it not having very much meaning at all. Ms Leris’s evidence supported by the medical literature was that for practical purposes all dystonic contractions (or co-contractions: often the distortion is the result of agonist and antagonist muscles straining against one another simultaneously) are the result of an attempt at willed action; so in that sense any focal dystonia is the result of the brain attempting to set the muscles of a certain area of the body the “task” of moving in a certain way. Mr Lazarus did not shrink from submitting that “task-specific” in the first column of the Schedule was strictly otiose as on his analysis all forms of focal dystonia were within the intendment of the prescription, but I think the fact that this interpretation deprives “task-specific” of all useful function must militate against it and in favour of the more restricted meaning in which Ms Leris understood the term and for which Mr Scoon argued.

24. Secondly it seems to me legitimate to draw at least some inference as to the intended scope of the reference to “task-specific” in the first column, as Mr Scoon argued I should, from the actual occupational tasks identified for the purposes of the prescription in column two, as referring to the kind of movements and actions specific to those occupational activities and not to anything more general. Mr Lazarus was quite right to say that the two parts of the prescription (the disease and the occupation) are separate; but they are not of course entirely unrelated to one another, and it is I think an entirely fair point and relevant to be taken into account on construction that a form of dystonia which is focal to a different part of the body from that involved in the very specific description in the second column, of the occupational activities accepted as likely to give rise to the prescribed disease, is unlikely to have been intended to be included within it for no apparent reason. It would simply be irrational to accord the benefit of the prescription and the statutory presumption under regulation 4 to a condition having no necessary connection with the occupational activity at all.

25. Third, and partly related to that, it seems to me right to take into account the historical content of the prescription of Disease A4 as a prelude to considering what is to be taken as intended by the alteration introduced in 2007. Again as already noted and recorded in the 1958 report of the Advisory Council, the prescribed disease had throughout its long history (for what by 2007 was just short of a complete century) been concerned with conditions accepted as related to the performance of finely-controlled repetitive movements of the kind performed by telegraphists, writers and yarn or cable twisters; and as the Council recommending the broadening of the prescription in 1958 put it, technological changes had even by then brought into being many operations

“requiring controlled skill and repetitive movements of the hands or forearms which can give rise to the conditions, for instance the spread of the now ubiquitous typewriter and the continuing increase in the use of key board controlled machines for various purposes.”

That this was the purpose and scope of the prescription as it stood before 2007 is well established on authority: see for example the reported decision of Mr D G Rice in R(I) 3/97 referring to the terms of that report and holding the prescription was limited to repetitive movements of an intense and frequent nature akin to those involved in handwriting and typing; see also the decision of Mr R J Angus in case CI 349/01 to the same effect, holding that the work of a cleaner was outside the prescription even though repetitive since it did not involve finely controlled movements of the requisite type.

26. Fourthly, the terms of the Advisory Council’s 2006 report which led to the introduction of the 2007 rewording leave no doubt that the only aspect of the existing one sought to be addressed by the introduction of the amendment was the removal of the risk of ambiguity from the use of the old term “cramp”, which seems by then to have been considered somewhat archaic and to require replacing by more up-to-date medical terminology. Contrary to some of the submissions made to me (initially, at least) by Mr Lazarus, I am entitled and bound to look at this material as an aid to the construction of the subordinate legislation introduced following the reports from this important statutory body for which the legislation itself expressly provides as part of the process. This is for the purpose of informing myself as to any relevant medical background to the introduction of new or amended provisions of the Schedule and in order to consider the “mischief” that the regulations in their amended form were intended to remedy, and is in accordance with the established practice and authority developed by the Commissioners over many years: see for example R(I) 11/81 paragraph 15, the decision of a strongly constituted Tribunal of Commissioners referring to and following the authority of the House of Lords in Black-Clawson International Ltd v Papierwerke Walhof-Ascheffenburg AG [1975] AC 591 especially per Lord Reid at page 614.

27. In the preface to the Council’s report of July 2006 Cm 6868 the chairman, Professor Newman Taylor, explained the purpose of the proposed alteration to the prescription of Prescribed Disease A4 in the following sentence:

“The current terms for the current prescribed diseases reviewed remain appropriate although we have recommended updating terminology of … cramp of the hand and forearm to more modern, medically recognised disease labels”.

And in the (unanimous) report itself the Council stated so far as relevant as follows:

“4. The current coverage for the existing prescribed diseases considered in this review remain appropriate. Insufficient new evidence was found to justify change, although the terminology of the schedule should be updated. Reference to the term ‘beat’ in relation to A5, A6 and A7 (a historical description referring to occupational bursitis and/or cellulitis, which is no longer widely recognised by the medical profession) should be removed; while that of cramp of the hand or forearm (PD A4) should be replaced by ‘task-specific focal dystonia’. …

Cramp of the hand or forearm

73. Writer’s cramp is defined as a task-specific focal dystonia of the hand. Dystonia is an involuntary, sustained muscle contraction causing twisting movements and abnormal postures; ‘focal’ means that only one part of the body is affected.

74. Two types of writer’s cramp have been described – simple and dystonic. People with ‘simple’ writer’s cramp have difficulty with only one specific task – for example, writing or playing the piano or violin. A person may pick up a pen but within writing a few words, dystonic postures of the hand impede the speed and accuracy of writing, such that the pen may be excessively gripped and ultimately fall from the hand. In dystonic writer’s cramp, similar symptoms manifest with other activities, such as shaving or using eating utensils. Aching and pain are not uncommon. Symptoms usually begin between 30 and 50 years of age and affect both sexes.

75. The exact cause of the condition is not known. But abnormal functioning of the basal ganglia (deep brain structures involved with the inititation and regulation of movement) may be implicated. Cases of inherited writer’s cramp have been reported.

76. Historically, outbreaks of writer’s cramp have been described in writers, scribes, and telegraphers. One famous outbreak, for example, affected British civil servants in the 1830s. Whether these were pure cases of dystonia (as opposed to other dysfunctional problems of the upper limb) and whether caused by work, or merely work limiting, cannot be stated with certainty.

77. The commissioned review [referred to elsewhere in the report: the Council had convened a special meeting of experts in the field to discuss concerns about the existing prescriptions, and commissioned an independent review of the expert medical literature on the subject, on which external comments had been invited and considered] identified a series of clinical case reports (under various terms e.g. occupational cramp, focal limb dystonia and musician’s cramp), including some speculating on mechanisms and some exploring treatments; musicians were the most frequent focus of investigation. But no epidemiological studies were found with risk estimates and suitable controlled comparators.

78. While recognising the limitations of the literature, the Council finds insufficient new evidence to remove A4 (cramp of the hand of forearm due to repetitive movements) from the current prescription list. The term “cramp” is an ambiguous one, so the description of the condition should be replaced in the schedule by the words ‘task-specific focal dystonia’.”

28. This demonstrates the evolution of some doubt, with developing medical knowledge, as to whether even the existing basis of the prescription of disease A4 could be justified were the Council and the Secretary of State to be considering it de novo for inclusion applying up-to-date epidemiological and occupational criteria for inclusion under section 108; though given its longstanding presence in the schedule the Council concluded there was insufficient new evidence to justify recommending its actual removal. It also demonstrates beyond doubt that the Council found no evidential base for recommending any substantive extension of the coverage of Prescribed Disease A4 and expressly did not do so: certainly not so as to include cervical dystonia in the list of prescribed diseases when it had never been there before. Finally it demonstrates that the only mischief sought to be addressed by the alteration of the wording in the first column was the elimination of what was thought to be an undesirable ambiguity in the single word “cramp” by the substitution of more accurate and up to date medical terminology for the same thing (though whether the desired and desirable aim of greater clarity was in fact achieved by the rewording suggested may with hindsight be questioned, as these proceedings have demonstrated).

29. The Council’s recommendation was accepted and carried into effect unaltered by the Secretary of State in the amendment regulations already cited which were made and laid before Parliament in March 2007 and came into force on 6 April 2007. The instrument recites that the Secretary of State is satisfied of the matters referred to in section 108(2)(a) and (b) of the Social Security Contributions and Benefits Act 1992, and that in accordance with section 172(2) of the Social Security Administration Act 1992 reference had been made to the Industrial Injuries Advisory Council. My fifth and final reason for reaching the conclusion I have is that it would have been completely impossible for the Secretary of State to have been “satisfied” of the matters referred to in section 108 of the Contributions and Benefits Act in accordance with that recital (which as already noted are essential preconditions to his having the power under the primary legislation to make a regulation adding to the prescriptions in the Schedule at all) had the effect been, as suggested by Mr Lazarus, to introduce an extension of the prescription of Prescribed Disease A4 to include in it cervical dystonia for the first time, when there was no evidence whatsoever, and no basis in the Council’s report, for him to be satisfied of any such thing in relation to that particular type of focal dystonia.

30. Again in my judgment the proper scope of the statutory power, and a presumption that the Secretary of State is to be taken as having intended to stay within the terms of his legislative power and exercise it rationally and lawfully, are matters that can and should be taken into account in construing the terms of what has actually been done; and a meaning should be applied which enables the result to be treated as rational and valid, as is reasonable and possible with the construction for which Mr Scoon contends, but not with that of Mr Lazarus. In any case if that were not so then the whole amendment made to the prescription of Disease A4 in 2007 would have to be held invalid for failure to comply with the statutory preconditions of the Secretary of State’s power to make the statutory instrument (cf. R(IB) 3/03 Howker v Secretary of State [2002] EWCA Civ 1623); so that even if Mr Lazarus’s submissions on the literal meaning of the rewording as it stands had to succeed, the result would still be that the claim for benefit in this case was rightly refused, as it is common ground it could not have been maintained under the old unaltered regulation. On either footing therefore this appeal has to succeed.

 

P L Howell

Judge of the Upper Tribunal

10 June 2010