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Sixth Report Session 1998-99

Volume 2
OCTOBER 1998 - MARCH 1999

The full report of selected cases

Summary of selected cases

DEPARTMENT OF SOCIAL SECURITY

Case No. C.1879/96

Misdirection by the Benefits Agency concerning entitlement to industrial injuries disablement benefit

11.1 Mr G complained that he was given misleading advice by staff in the Department of Social Security (DSS) as to his eligibility to claim industrial injuries disablement benefit (IIDB) in respect of an industrial accident (IA) and that, as a result, he had delayed making a claim for IIDB, special hardship allowance (SHA), and reduced earnings allowance (REA), in respect of that accident. Mr G said that DSS had unreasonably refused to pay compensation for the loss of use of the arrears of backdated benefit.

11.2 My investigation began once the Ombudsman had obtained comments from the Chief Executive of the Benefits Agency (BA) - an executive agency of DSS - after the Member's referral of the complaint. I have not put into this report every detail investigated by the Ombudsman's staff; but I am satisfied that no matter of significance has been overlooked. An annex to this report gives the meaning of the abbreviations used in it.

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Background

11.3 IIDB is a cash benefit payable to those who suffer a continuing loss of mental or physical faculty as a result of an IA or the onset of a prescribed industrial disease (PID). The degree of disablement, which is expressed as a percentage loss of capability, caused by the IA or the PID and the likely duration of disability are assessed by an independent medical board, now known as an adjudicating medical authority (AMA), against whose decisions an appeal lies to a Medical Appeal Tribunal (MAT). After assessment of the degree of disablement by the AMA or a MAT, entitlement to IIDB is decided by an adjudication officer (AO). The award, which takes the form of a weekly pension, is not payable where disablement is assessed at less than 14 per cent (except for certain diseases which are not relevant to Mr G's case). For claims made before 1986, where the assessment was less than 20 per cent, a lump sum gratuity was paid according to the extent of the claimant's disability. If the claimant is assessed as being entitled to IIDB, the benefit is payable from 90 days (excluding Sundays) after the date which the relevant medical authority assesses as being that on which disablement started.

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11.4 When claiming IIDB there are separate claim forms for IAs and PIDs. Form BI 100A is used to claim the former and form BI 100B the latter. Prior to the launch of BA in 1991 claims were dealt with by DSS's local offices; since 1991 they are handled by BA's local benefit offices. The claim forms allowed claimants to request information about SHA and from October 1986 about REA. When claiming in respect of a PID an applicant must specify for which of the listed PIDs the claim is being made. In deciding entitlement based on a PID, DSS need to find out from the employer whether the claimant's occupation was one in which that PID was likely to have arisen. If a claim is in respect of an IA it is necessary to establish that there was either an event or occurrence involving the claimant that can be described as an accident which arose out of, or in the course of, an employed earner's employment. It is also necessary to establish that the claimant suffered personal injury as a result of the IA. Decisions on such matters are made by an AO. If the injury is accepted as an IA, the claimant is referred to an AMA to assess the degree of disablement arising.

11.5 Where an injury develops relatively slowly through the normal course of work, that is termed "injury by process". Although each case is dealt with on its facts and the degree of the injury, if the injury developed solely as a result of a continuous process at work an applicant will not be entitled to an IIDB, unless the injury is listed as a PID.

11.6 SHA was a weekly cash benefit which could be paid to those already receiving IIDB where, because of the effects of the disablement, the recipient was no longer capable of continuing in his or her regular occupation or in other suitable employment of an equivalent standard. The allowance was designed to compensate for a loss of earning capacity. Claims were decided by an AO after assessment by an AMA, and awards were usually for a fixed period, renewable on application.

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11.7 REA, which replaced SHA in October 1996, is a weekly cash benefit designed to compensate a claimant for loss of earning capacity. It is payable, either alone or together with IIDB, from 90 days after the date of the IA or onset of a PID, to persons who are assessed as at least 1 per cent disabled and who have been continuously unable to follow their regular occupation (or one of an equivalent standard) or are incapable and likely to remain permanently incapable of following that occupation. Medical questions arising on REA claims are decided by AOs, taking into account the opinion of AMAs.

11.8 Decisions on claims to IIDB and REA made by AOs carry a right of appeal to a Social Security Appeal Tribunal (SSAT) and ultimately, on a point of law, to a Social Security Commissioner (SSC). The administration of SSATs is the responsibility of the Independent Tribunal Service. The Ombudsman is generally debarred from investigating any action in respect of which a complainant has or had a right of appeal to such independent authorities; nor is it for him to question medical opinion, such as that given by an AMA. This report is concerned only with the administrative actions of DSS in their handling of Mr G's case.

11.9 The DSS compensation scheme, the general scope of which has been agreed with the Ombudsman's predecessors, provides for compensation to be paid in cases where payment of benefit has been delayed for longer than a defined "fallow" period (which in the case of IIDB at the time relevant to the complaint was 12 months) and where there had been clear and unambiguous departmental error. No compensation is payable in respect of the "fallow" period.

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Investigation

11.10

Pre-1980

Mr G suffered from poliomyelitis in childhood, principally affecting his left upper arm which was eventually amputated. Mr G worked as a welder in the steel industry. He suffered an IA at work on 11 November 1979. The IA occurred when Mr G was carrying heavy cable. He suffered severe pain and collapsed on to girders.

11.11

1980

On 21 January Mr G visited his general practitioner who diagnosed him as suffering from right tennis and golf elbow. In his notes on the consultation the general practitioner mentioned that Mr G's work involved him in lifting heavy cables. The general practitioner certified Mr G as being unfit for work and referred him to an orthopaedic consultant (to whom I refer as consultant M) at his local hospital. On 7 March Mr G visited the orthopaedic department of the hospital. An extract from the hospital case notes says that Mr G had suffered pain in the right elbow for the last three months which came on while he was doing heavy work but that he could not recall any specific injury. Consultant M wrote to the general practitioner telling him that Mr G had right golf elbow and that he intended to treat it by an injection of local anaesthetic and steroid into the flexor region. By Mr G's account, on 7 March 1980 he received two forms (BF113 and BF7) from DSS. The forms said that DSS had received his sick note and asked if he wished to claim IIDB in respect of a PID. Mr G said that he had not fully understood the forms so he asked DSS for assistance. By his account, in March 1980 he visited a DSS local office and was interviewed by two female officers. The officers set about completing a form BI 100A in respect of an IA on his behalf. They did that in an effort to help because of his obvious disability. However, while that was being done a problem arose when he described how the injury had occurred. By Mr G's account, his description was as follows: "I was carrying heavy welding cables when I suddenly was overcome by a severe attack of pain at the elbow which caused me to fall on to some girders." By Mr G's account the officers broke off the interview saying that they would have to seek advice on that type of injury. They returned, after a short interval, saying that in their opinion because Mr G had not sustained "an actual accident, there being no second or third party involved", he was not entitled to claim for an IA. By Mr G's account, the officers also said that they had been told that golf elbow could not be claimed as an IA or as a PID. By his account, the officers then attempted to process a claim for SHA. They again left the room and, having taken further advice, they returned after another short interval and said that a claim for SHA could not be made without first having a "Disability Pension or Assessment". By Mr G's account, he returned to work but due to a recurrence of the symptoms he had to give that up. He discussed the matter with his general practitioner who told him that if he could not claim for an IA or in respect of golf elbow, he should claim in respect of tenosynovitis. On 1 December Mr G claimed IIDB on the grounds that he suffered from a PID, tenosynovitis, an inflammation associated with repetitive movements which, he said, affected his right hand and elbow. He indicated on the claim form that he also wished to claim SHA. Mr G said that he had received physiotherapy at a medical centre from November 1979 to March 1980 and treatment at the hospital from then on. On 3 December DSS asked Mr G a number of further questions about his claim. In his answers to those questions Mr G said that he had been employed locally. (That employer was subsequently subsumed by another organisation, but for ease of reference I refer to both as "Mr G's former employer".) Mr G said that he considered that the disease, which he said had started in November 1979, had been caused by constant manual work involving lifting and carrying heavy welding cables, as well as by the generally heavy nature of the work. He gave his "clock or check" number as 93726 and said that he had last worked in June. On 8 December DSS decided not to send a claim form for SHA to Mr G until such time as they had established the date the PID had started. By Mr G's account, DSS told him that he could not claim SHA without first being in receipt of IIDB. They wrote to the safety officer at Mr G's former employer asking him a number of questions. On 18 December DSS asked consultant M to examine Mr G and report on his condition.

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11.12

1981

On 12 January consultant M examined Mr G and two days later DSS received a report of that examination. The report said that Mr G had stated that in early November 1979 he had developed pain in his right elbow radiating down the forearm which he had attributed to carrying heavy cables on the right forearm. He did not recall any "specific injury." Mr G had undergone physiotherapy at a medical centre and had attended hospital on 7 March 1980 as an outpatient. Mr G had said that subsequent to that, and while he had been off work due to an industrial dispute, the pain had settled down but had returned when he had resumed his job which he had since given up. Consultant M diagnosed Mr G's disabling condition as right tennis elbow and not tenosynovitis. Consultant M said that the tennis elbow, and the golf elbow for which Mr G had attended hospital in 1980, appeared to be due to occupational strain, with additional stress being put on the right forearm due to his work and the loss of the left upper limb. Consultant M said that the condition was different from tenosynovitis. On 20 January DSS received information from the safety manager. He said that Mr G had been employed on light welding duties and that he would not have engaged in frequent or repeated use of the hand or wrist as, due to his disability, all labouring work connected with his job had been carried out by labourers. The safety manager said that Mr G had been employed up to 26 September 1980. On 9 February an AO disallowed Mr G's claim for IIDB on the grounds that he was not suffering from tenosynovitis. DSS wrote to Mr G telling him that and informing him of his right to appeal.

11.13 On 20 February Mr G wrote to DSS appealing against the decision. He enclosed a letter from his general practitioner, addressed to DSS, asking that they reconsider Mr G's claim as it should have been in respect of the PID known as "beat elbow". On 27 February Mr G visited DSS and made a statement. He asked them to withdraw his appeal against their decision on his claim as, due to a misunderstanding with his general practitioner, he had claimed for the wrong PID and now wished to claim in respect of beat elbow. He made a new claim and said that he wished to claim SHA. DSS wrote to the safety officer asking for further information about Mr G. In March the safety officer provided the same information that he had provided in January. On 16 March an AO disallowed Mr G's second claim for IIDB on the grounds that he had not been employed in an occupation involving manual labour causing severe or prolonged external friction or pressure at or about the elbow.

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11.14 Following a request from Mr G's solicitors, consultant M examined Mr G on 18 March and on the same day he wrote to the solicitors reporting the results. Consultant M said that in November 1979 Mr G had developed pain in his right elbow. Although Mr G did not recall any "specific injury", he attributed the onset of the problem to heavy work and in particular to carrying heavy cables on his right forearm. Consultant M said that Mr G had continued to work although he had attended his former employer's medical department and had been given a course of ultrasonic treatment which had been a form of physiotherapy. Consultant M said that Mr G had attended hospital on 7 March 1980 and had been diagnosed as having golf elbow, but during the examination that consultant M had carried out for DSS on 12 January 1981 Mr G had been diagnosed as having tennis elbow. On neither occasion were the findings completely typical of those conditions. Consultant M said that Mr G at the then current time had complained of pain in the right elbow when doing manual work. He must be regarded as suffering from a chronic strain of the attachment of the forearm muscles to the lower end of the humerus. Both golf and tennis elbow were chronic strains at those sites, frequently caused by prolonged strain of the forearm muscles and consistent with the duties that Mr G had had to undertake with one arm. Consultant M concluded his report by saying that it was reasonable to conclude that Mr G had developed his condition as a result of continued occupational strain made worse by the fact that, having no left arm, Mr G had been unable to rest the right arm to give the condition a chance to settle down. Consultant M said that it did not appear to him that Mr G had sustained any "specific injury" which had resulted in the disability.

11.15 On 25 March DSS wrote to Mr G telling him that his claim for IIDB in respect of beat elbow had been disallowed. Mr G appealed through his solicitors against that decision and on 22 June it was accepted that Mr G satisfied the occupational conditions. It was decided that the question as to whether or not he was suffering from beat elbow should be referred to an AMA. On 9 July DSS received a claim for SHA from Mr G. On 23 July DSS asked consultant M to examine Mr G to see if he was suffering from beat elbow. Consultant M did that on 19 August and diagnosed a recurrence of golf elbow rather than tennis elbow. He said that both ailments were different and unrelated to beat elbow. On 30 November Mr G wrote to DSS enclosing his work record. He complained about the handling of his claims.

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11.16

1982

On 11 January an AMA examined Mr G. In his statement to the AMA Mr G said that he had worked as a welder for 18 years but his last job had involved heavy work. He had developed pain in the right elbow which in his opinion had been caused by carrying heavy equipment. The AMA found that he was not suffering from a PID and had not so suffered at any time since 1 November 1979. On 17 February the then Minister for Social Security and the Disabled wrote to Mr G's then constituency Member replying to a letter he had sent to the then Minister on 15 December 1991. The then Minister gave the background to the case and explained why Mr G's claims for IIDB had been disallowed. The then Minister said that the Industrial Injuries Advisory Council (an independent body which advised the Secretary of State for Social Security on matters relating to prescribed diseases) had been asked by the then Secretary of State to consider whether epicondylitis of the humerus (commonly known as tennis or golfer's elbow) should be listed as a PID. Either the then Member or Mr G could submit evidence to the Council if they so wished. On 9 March DSS wrote to Mr G telling him that IIDB could not be awarded to him as the AMA had found that he was not suffering from beat elbow. They enclosed a summary of the decision and said that he could appeal to a MAT. Meanwhile, Mr G had written on 23 February saying that he wished to appeal to a MAT. On 13 May DSS headquarters replied to Mr G apologising for the delay in dealing with his claim following his appeal. They said that their normal procedure in such cases was to arrange for an examination and report by a consultant followed by an examination and decision by an AMA. They acknowledged that it had not been until 11 January 1982 that Mr G had been examined by an AMA.

11.17 By Mr G's account, DSS wrote to him on 8 June saying they had no knowledge of any claim on his behalf. (There is no record of that letter on DSS's files.) On 15 June Mr G wrote to DSS headquarters referring to the letter of 8 June and saying that he had in 1980 made his first claim for IIDB as a result of an injury sustained in November 1979. That injury had been to his right arm. On 26 July a MAT hearing was adjourned to allow Mr G to arrange for a representative to attend. On 5 August DSS noted that there was no record in their files of Mr G having suffered an IA in November 1979. DSS said: "You will see from his letter to us on 15.6.82 that he is referring to an accident in November 1979 .... Mr G appears to be confusing this 'incident' in November 1979 with the date from which he alleged disability in relation to a claim for a prescribed disease being considered at present by the Medical Appeal Tribunal." On 24 August the MAT accepted consultant M's report and upheld the decision that Mr G was not suffering from beat elbow. On 9 September DSS wrote to Mr G telling him that the decision on his claim had not been altered. They told him that there was no appeal against the MAT's decision except on a point of law. On 18 September Mr G wrote to the MAT appealing against their decision on a number of grounds. He said that DSS had failed to offer him advice as to how best to pursue his claim and that he had not received a proper medical examination. No specific tests, either under working conditions or otherwise, had been carried out. On 11 October Mr G applied to the MAT for leave to appeal to a SSC against their decision of 24 August.

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11.18

1983

On 27 May the MAT's chairman refused Mr G leave to appeal as he had not raised any point of law. On 21 June Mr G applied to the SSC for leave to appeal against the MAT's decision. That application was refused.

11.19

1984

On 11 May the then Parliamentary Under Secretary of State and Minister for the Disabled wrote to Mr G's then Member giving the latest position on the case and saying that the Industrial Injuries Advisory Council had decided that golf or tennis elbow should not be listed as a PID because it would not be possible to distinguish between occupational and non-occupational causes of the disease.

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11.20

1988

On 31 March Mr G's new solicitors wrote to DSS enclosing an uncompleted application form for REA. They asked for a form on which Mr G could claim IIDB. On 4 July DSS received an application for IIDB from Mr G in respect of a PID, tenosynovitis. He said that as a result of the disease he suffered severe pain in the elbow and forearm and in his tendons. On 5 July an AO decided that, as the previous diagnosis had been made seven and a half years earlier, further medical opinion should be sought. On 25 July DSS asked a consultant (to whom I refer as consultant W) at the hospital to examine Mr G. On 13 October consultant W did that and reported that Mr G related the start of his problem back to an incident in 1979 when he had been working as a welder and had experienced a sudden onset of pain in his right elbow while carrying cables. Consultant W said that he had seen Mr G in the hospital's orthopaedic clinic in January 1988 and that his continuing symptoms were mainly due to tennis elbow rather than tenosynovitis. Consultant W said that in his experience tennis elbow was not normally precipitated by one particular incident, although the symptoms might have been aggravated by the heavy work that Mr G had to do.

11.21 On 1 November an AO disallowed Mr G's claim for IIDB. DSS told Mr G that. Following receipt of that decision Mr G wrote to DSS asking them to explain the medical report made by consultant W, with specific reference to what was wrong with his elbow and forearm. He also asked for an explanation of how the decision had been made. He complained that DSS were discriminating against him. He spoke of an accident he had suffered while working as a welder and of the industrial injury he had sustained. He said that if he could not claim IIDB in respect of a PID, then surely he could claim for an IA. He asked DSS to reply to his solicitors.

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11.22

1989

On 24 January DSS wrote to the solicitors addressing the questions that Mr G had asked. DSS said that they were not authorised to disclose information about the medical report, but they undertook to refer Mr G's request to a senior medical officer. They gave details of the conditions for payment of IIDB in respect of an IA. Those included the need to establish that there had been an event or occurrence which was capable of being described as an accident, and that the claimant had suffered personal injury as a result of the IA. On 9 February the solicitors wrote to DSS saying that Mr G wished to appeal to an AMA. They asked DSS to treat their letter as a claim to IIDB in respect of an IA, because Mr G met all the conditions outlined in DSS's letter of 24 January. On 24 February DSS wrote to the solicitors quoting passages verbatim from consultant W's report. They enclosed a claim form BI 100A (paragraph 11.4) which they received back on 8 March. On the form Mr G said that he had had an accident in November 1979 (the exact date was not given) while carrying heavy coils of welding cables during the normal late shift. The cables had to be linked together, often over long distances, in order to connect a power supply to the work area. Mr G had ticked a box on the form indicating his wish to claim REA. On 16 March Mr G telephoned DSS setting out how the accident had occurred. He said that he had sustained a specific injury in early November 1979 when he had felt sudden pain in his elbow whilst carrying heavy coils of wire from one part of his work area to another. He had been on the evening shift. On 16 and 17 March respectively DSS wrote to the safety officer at Mr G's former employer, and to the medical centre, asking them to confirm that Mr G had suffered an IA in November 1979. They gave Mr G's "works" number as 93726. On 21 March DSS received a reply from the safety officer who was the person who had provided information in January and March 1981. The safety officer said that he had made a thorough search of the records but could not find any record that Mr G had sustained an IA during October, November or December 1979. On 2 May DSS received a letter from the employer's occupational physician saying that they had made a thorough search of the accident files for the same period but could not find any record that Mr G had suffered an accident. The physician said that they had located the medical records of another man with the same name and initial whose date of birth was 3 April 1938 as Mr G's but with a "works no. 25402 CEW boilershop". They said that they had not found any record for "Mr G clock no. 93726".

11.23 On 4 May DSS wrote to Mr G telling him about the reply from the former employer. They asked Mr G if he had ever been employed in the "CEW boilershop" and if he had had "clock" number 25402. They said that there was no record of "clock" number 73726. (They should have said 93726). They asked Mr G whether there was any other evidence they could obtain or whether there were any witnesses to the IA. On 24 May Mr G's solicitors wrote to DSS saying that DSS had quoted the wrong clock number in their letter to Mr G. They asked DSS to check the records. On 22 June DSS wrote to the solicitors apologising for the error and asking whether Mr G could provide any further information about the IA. On 18 July DSS wrote to Mr G telling him that his claim for IIDB had been disallowed as the AMA had decided that he was not suffering from tenosynovitis. They explained the appeal process. On 3 August DSS wrote to the solicitors asking whether there was any further evidence they wished to present. There followed an exchange of letters between the solicitors and DSS in which the solicitors asked for more time to provide further information, and in a letter dated 16 October they said that they had arranged for an independent medical examination of Mr G to be carried out on 7 November. That examination was carried out by a consultant orthopaedic surgeon (to whom I refer to as consultant S). In his report dated 10 November consultant S said that in his opinion Mr G had developed symptoms suggestive of medial and lateral epicondylitis which were commonly known as "golfer's" and "tennis" elbow as a result of the excessive strains that he had imposed on his right elbow joint while at work. He said that the conditions were characterised by painful symptoms particularly brought on by gripping and twisting movements of the forearm. Consultant S concluded his report by saying that it was probable that Mr G's condition had been brought on as a result of the occupational stresses of his work as a welder.

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11.24

1990

On 18 January the solicitors wrote to DSS contending that there had been confusion over the two claims that Mr G had made for IIDB. They said that one was in respect of a PID and the other in respect of an IA. They said that they were awaiting consultant S's report which they wished to put before a MAT. On 19 January DSS wrote to the solicitors asking them if Mr G could provide any further evidence as to the date of his IA and whether any other party could confirm the details. On 26 January the solicitors wrote to DSS asking for more time to provide the information. On 23 March DSS received a letter from the solicitors saying that Mr G wished to withdraw his appeal against the decision not to award him IIDB in respect of a PID, but that he wished to continue with his claim in respect of an IA. On 10 August DSS received a letter from the solicitors enclosing evidence which they said supported their claim that Mr G had had an IA on the night of 11 November 1979 while he was working on the evening shift. The IA consisted of the fact that, while he had been in the process of carrying heavy duty cables, Mr G had suffered pain in his elbow. The evidence included a copy of the treatment record Mr G had had at the medical centre. That gave Mr G's clock number as 93726. It said that on 19 December 1979 Mr G had had ultra sound treatment for golfer's elbow. The following statement is given against that date in the remarks section of the record;

"states trouble with right arm sometime but mainly last two weeks - common flexor origin. ? golfer's elbow ...."

The solicitors also enclosed medical reports, a copy of an extract of Mr G's case notes and two letters from a shop steward who had worked with Mr G. The shop steward said that Mr G had approached him in the early part of November 1979 to ask for his help in transferring to lighter work as he had had an IA. On 26 September an AO disallowed Mr G's claim as it had not been established that there was either an event which in itself was identifiable as an IA or a particular occasion when Mr G had suffered personal injury which would constitute an IA. DSS told him that. On 1 October Mr G visited DSS asking for the information that had been used in making the decision to refuse his claim. They told him that the decision had been made solely on the grounds that there was insufficient evidence to prove that he had suffered an IA on 11 November 1979. Mr G said that he had traced the doctor that he had seen at the time of the IA and that he might pursue the matter with him. Mr G also said that when the IA had occurred he had been carrying cables used for welding purposes and that his arm had given way. He had ended up on the floor in pain. On 21 December DSS received a letter from the solicitors saying that they would appeal against the decision to disallow the claim. They said that Mr G intended to produce additional evidence to support his appeal.

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11.25

1991

On 10 December a SSAT upheld Mr G's appeal. The chairman's note of the evidence stated that Mr G had said that on 11 November 1979 he had had to carry very heavy cable. While carrying the cable with his right arm he had felt severe pain. He had thought he had broken his arm. He had collapsed on to some girders. On questions of fact the SSAT found that:

"On 11 November 1979 Appellant carrying heavy cable to workplace and suffered severe pain and collapsed on to girders.

Thereafter required medical treatment."

Their decision was that there had been a particular occasion on 11 November 1979 on which Mr G had suffered a personal injury which had constituted an IA. They referred the case to an AMA to assess the extent of disablement.

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11.26

1992

On 17 January an AO reviewed the case and decided that Mr G had had an IA on 11 November 1979. On 31 January Mr G wrote to DSS asking about other benefits that were available to him. On 3 February DSS received a claim for REA from Mr G. On 21 February they wrote to Mr G saying that the SSAT had decided that an IA had occurred but had not determined his entitlement to IIDB. They said that his SHA/REA claim would be considered along with the IIDB claim. On 9 March an AMA examined Mr G and assessed his degree of disablement as less than the 14 per cent needed to qualify for IIDB. In relation to Mr G's claim for REA, the AMA said that he was permanently incapable of undertaking his regular occupation due to loss of faculty. DSS told Mr G about the assessment. On 1 May DSS received an undated letter from Mr G asking for an explanation of how the assessment had been made. On 8 May Mr G wrote to DSS repeating his previous request and asking whether he would be entitled to a gratuity payment as he had originally claimed IIDB in December 1980 (paragraph 11.3). Mr G also asked about his eligibility for other benefits. On 26 May DSS wrote to Mr G addressing the points he had raised. They said that his claim for an IA had not been made until March 1989 and it could not be backdated to 1980 as his previous claims had been in respect of a PID rather than an IA. On 2 July the Network for the Handicapped wrote to DSS on behalf of Mr G appealing against the AMA's decision.

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11.27

1993

On 12 January a MAT met and noted that an extract from Mr G's hospital records appeared to show that he had visited the hospital on 11 November 1979 and that he had suffered from right elbow pain for three months prior to that date. The MAT asked for the original hospital notes to be obtained, together with a report from Mr G's general practitioner about any attendances or reports from the hospital between 1 June 1979 and 10 March 1981. The MAT adjourned on that basis. On 2 February BA's medical services wrote to the general practitioner asking for the information specified by the MAT. The general practitioner replied that there was no record of any injury to the arm in 1979 but that Mr G had visited the surgery on 21 January 1980. The notes seemed to indicate that Mr G had been diagnosed as having a right elbow strain but there was no reference to "industrial causation". On 27 April the MAT reconvened. The original of the hospital notes was produced and the MAT decided that the extract from them which they had had at their earlier meeting had been incorrect. The entry for 11 November 1979 should have read 7 March 1980. They made a 10 per cent disablement assessment for life which was comprised of 5 per cent in respect of the disability to Mr G's right elbow and 5 per cent in respect of the pre-existing disability. On 24 May Mr G wrote to DSS chasing progress on his claim for SHA. On 2 June the Network for the Handicapped wrote to the clerk to the MAT seeking leave to appeal to a SSC. On 11 June the chairman of the MAT refused Mr G leave to appeal. Meanwhile, on 4 June DSS had recorded that they accepted that Mr G had good cause for a late claim to REA for the period 8 March 1989 to 3 February 1992. He had indicated on his claim form dated 8 March 1989 that he wished to claim REA. On 10 June an AO reviewed the case to reflect the decision of the MAT. The AO decided that IIDB was not payable as the extent of the loss of faculty was less than 14 per cent. The AO also disallowed Mr G's claim for REA from 11 November 1979 to 7 December 1988 as the claim for that period had been made on 3 February 1992. It was therefore out of time and Mr G had not shown continuous good cause for a late claim. DSS told Mr G of the decision regarding his claims for IIDB and REA and advised him as to his right of appeal. On 13 June Mr G wrote to DSS asking for clarification of the decision on his REA claim. He asked what percentage disablement assessment would be required for the period prior to 1988 to allow backdated benefit to be paid. Mr G said that he had been told in 1980 by DSS that he could not claim SHA without first being eligible for IIDB.

11.28 On 15 June the clerk to the MAT wrote to Mr G telling him that the chairman had refused him leave to appeal to a SSC. If Mr G wished to seek leave to appeal direct from a SSC he should write to the SSCs' office within 42 days. On 16 June Mr G wrote to DSS appealing against the decision regarding his entitlement to REA. On 22 June DSS wrote to Mr G saying that before 1 October 1986 disablement assessments between 1 per cent and 19 per cent attracted a gratuity payment, with a pension payable for assessments of 20 per cent or more. However, since 1 October 1986 a weekly pension was payable for assessments over 14 per cent, with nothing payable for assessments below that figure. DSS said that there must be a current assessment in relation to IIDB before REA (which had replaced SHA) could be considered. They said that an AO had accepted that Mr G had shown continuous good cause for delay in making the claim for REA as he had ticked the box indicating that he wished to claim it on his claim for IIDB made on 8 March 1989. In view of that, REA could be paid from three months before that date. On 23 June DSS wrote to Mr G telling him that he had been awarded REA from 14 December 1988 to 13 December 1994 at the various weekly rates that applied during that period. On the following day they told Mr G that he would receive REA totalling £7,574.24. That was paid on 25 June.

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11.29 Meanwhile, on 23 June Mr G had written to DSS thanking them for the progress made but saying that there was still some way to go to put his case on a proper footing. On 26 June Mr G applied to a SSC for leave to appeal against the MAT's decision of 27 April. On 6 July Mr G wrote to DSS asking them to backdate his claim for IIDB in respect of the IA to 1980. He said that he had not received a written reply to the claim he had made in March 1980 but had received an oral decision. He assumed the reply had been negative, as had been orally stated at the time. Mr G went on to give a summary of the events that he said had taken place in 1979-80.

11.30 On 13 July DSS wrote to Mr G saying that the first claim in their records was for IIDB in respect of a PID (tenosynovitis) which had been disallowed on 9 February 1981. They said that he had appealed against that decision but had withdrawn the appeal in favour of a claim in respect of beat elbow, made on 27 February 1981. On 13 July an AO asked her supervisor whether Mr G's claim for REA/SHA should be reviewed and backdated to 11 November 1979 in view of the account given by Mr G in his letter of 6 July. The AO said that Mr G's account of events was consistent with the case papers except that there was no record of an interview in March 1980. The AO said that when she had admitted a late claim for REA she had known that Mr G had claimed IIDB in respect of a PID in December 1980 and February 1981. She had also been aware that on both occasions he had indicated that he wished to claim SHA. However, she had been unaware that he had tried to make a claim for an IA and SHA as far back as March 1980. She asked whether, in view of that, she should review the late claim decision and award SHA/REA backdated to 11 November 1979. Her supervisor replied that there appeared to be grounds for reviewing the earlier decision, although there was no evidence to substantiate Mr G's statement that he had tried to claim in respect of an IA in March 1980. The supervisor asked the AO for her reasons for believing that Mr G had made an earlier attempt to claim in respect of an IA and why there was no documentation. The AO said that she knew Mr G of old. She said he kept well-documented records of all his dealings with DSS. She said: "If he says he came - I believe him." The AO said that in 1980 different staff had dealt with disability benefit matters and accident decisions. If Mr G had sought advice from the former staff, it was quite likely he would have been given the advice he had said he had been given. He had not been suffering from a PID and the description of the "accident" made it seem like an accident by process "which is not covered by the accident provisions". The AO went on to say that when Mr G had in fact applied in respect of an IA on 8 March 1989 his claim had been disallowed on those grounds; on appeal that had been overturned. The AO said she was of the view that no documents were available because "the claim form was never completed and therefore never actioned". She said Mr G's account supported that interpretation. On 15 July Mr G wrote to DSS assuring them that the interview in 1980 had occurred as he had described it. At the end of the interview it looked "as though there was no possible course of action that could be followed". All he could assume was that the form BI 100A had been destroyed because of that. On 22 July the AO awarded Mr G SHA at the relevant weekly rates for the periods 21 January to 15 March 1980 and 10 July 1980 to 30 September 1986, together with REA at the relevant weekly rates for the period 1 October 1986 to 13 December 1988. DSS wrote to Mr G telling him that. They incorrectly referred to all the arrears as being in respect of REA. (Those up to 30 September 1986 were in respect of SHA.)

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11.31 On 23 July DSS told Mr G that he would receive arrears of SHA and REA amounting to £9,937.04. That amount was paid to him on 3 August. On 9 August BA's district office in Grimsby wrote to Mr G asking whether, in view of the revised decision, he wished to proceed with his appeal regarding SHA/REA. They said that he had not been awarded benefit for the periods 11 November 1979 to 20 January 1980 and 16 March to 9 July 1980 because he had worked during those periods. On 11 August Mr G withdrew his appeal. On 18 August the AO referred the case to DSS's Benefits Support Branch (disability benefits) (BSB(DB)) asking them to consider compensating Mr G for the delay in payment of SHA and REA. She said that from her knowledge of the case "it would have been considered to have been an accident by process". She said it was clear that Mr G should have been allowed to make a claim on form BI 100A in March 1980 when he had visited the local office of DSS. In September BSB(DB) sent a submission to a SSC regarding Mr G's application for leave to appeal. They submitted that the MAT had erred in law when making their decision of 27 April. On 6 October a SSC granted Mr G leave to appeal and treated his request as an appeal. The SSC held that the MAT had failed properly to compare Mr G to an able-bodied person, had failed properly to consider the effect of the absence of Mr G's left arm and had failed properly to deal with the pre-existing disability. The SSC allowed the appeal and directed that Mr G's case be reheard by another MAT.

11.32 On 25 October BSB(DB) referred the case to the Central Adjudication Services (CAS) as SHA had been incorrectly paid in respect of a period when no IIDB had been payable. BSB(DB) said that the AO had awarded SHA for the periods 21 January to 15 March 1980 and 10 July 1980 to 13 December 1988 on the grounds that Mr G had been misdirected by DSS in March 1980. Misdirection had been accepted without referral of the case to BSB(DB) who would strongly maintain that Mr G had not been misdirected. Their view was therefore in conflict with that of the AO. On 28 November CAS wrote to BSB(DB) saying that SHA had not been payable as the disablement assessment was less than 14 per cent and no IIDB was in payment. On 6 December BSB(DB) recorded that although REA was a benefit in its own right and could be awarded for any period where there was a disablement assessment of at least 1 per cent, SHA represented an increase to IIDB and could only be awarded with IIDB. They said that the SHA paid for the periods 21 January to 15 March 1980 and 10 July 1980 to 30 September 1986 represented an overpayment of benefit. On 17 December an AO recorded that the case could be reviewed but did not make a formal decision pending the new MAT hearing directed by the SSC.

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11.33

1994

On 26 April a MAT found Mr G to be 100 per cent disabled, with an 85 per cent offset for a pre-existing disability, leaving a disability assessment of 15 per cent from 15 November 1979. On 14 June DSS wrote two letters to Mr G telling him that he was entitled to IIDB for the period 21 November 1979 to 21 June 1994. He would receive arrears of benefit totalling £9,893.36. That was paid to him the following day. (The award of IIDB regularised the payments of SHA which had previously been regarded as an overpayment, and they were allowed to stand.)

11.34 On 22 June DSS received a letter from a welfare rights officer in a county council asking for compensation for the loss of use of the arrears, totalling £27,404.64, that had been paid to Mr G. On 30 June the case was sent to BSB(DB) asking them to consider paying compensation to Mr G for loss of use. On 12 July BSB(DB) recorded that compensation of £200.04 was appropriate in respect of the arrears of REA paid on 25 June 1993 and 3 August 1993 but that compensation was not appropriate in respect of the arrears of SHA paid on 3 August 1993 and the arrears of IIDB paid on 15 June 1994. They said they accepted that Mr G had visited the local office of DSS in March 1980 to make enquiries about IIDB and SHA. However, there was no evidence to support his contention that he had been misdirected with regard to making a claim for IIDB in respect of an IA. BSB(DB) went on to say that neither Mr G nor his general practitioner had considered at that stage that he had sustained an IA. If Mr G had indicated that he had had a specific accident, or series of incidents/accidents, at work DSS would not have stopped him completing a form BI 100A even if he had produced a medical certificate showing incapacity as being due to golf elbow. BSB(DB) said that the report of consultant M's examination on 12 January 1981 had said that Mr G could not recall any specific injury but had attributed his condition to carrying heavy cables. Taking that into account they considered that what Mr G had described to staff "would have sounded more like accident by process or a prescribed disease." They said that they did not consider that a clear and unambiguous error on the part of DSS had prevented Mr G from claiming IIDB in respect of an IA earlier than the claim made in March 1989. On 12 July BSB(DB) wrote to Mr G telling him that. They said he had become entitled to SHA only after he had become entitled to IIDB following the MAT's decision of 26 April 1994. Compensation was inappropriate in respect of the SHA that had been wrongly paid on 25 June 1993. However, after Mr G's examination by an AMA on 9 March 1992 his claim to REA had been delayed due to DSS's failure to refer the claim to an AO until after the MAT hearing of 27 April 1993. An ex gratia payment of £200.04 would be paid in recognition of the loss of use of the arrears of REA paid on 25 June and 3 August 1993. BSB(DB) wrote to the welfare rights officer enclosing a copy of their letter to Mr G. On 18 July Mr G wrote to BSB(DB) reasserting that he had been misled when he had been interviewed in March 1980. On 28 September BSB(DB) wrote to Mr G telling him that on the evidence available they did not believe that he had been misdirected in March 1980. On 4 and 5 October Mr G wrote to the Member complaining that DSS had refused to pay compensation. On 20 December the Member wrote to BSB(DB) asking that they compensate Mr G for the loss of use of the arrears of benefit. On 24 January 1995 the then Chief Executive of BA wrote to the Member giving reasons why Mr G was not entitled to compensation.

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Chief Executive's comments

11.35 In his comments to the Ombudsman the Chief Executive of BA acknowledged that there had been some delay in deciding Mr G's REA claims, for which he apologised. He said that compensation had been paid for the delayed payments. The Chief Executive said that they did not accept that Mr G had been misdirected as neither he, nor his medical advisors, had identified a specific incident which could be accepted as an IA. He concluded by saying that in those circumstances further compensation was not warranted. Findings

11.36 BA accept that Mr G visited a local office of DSS in March 1980 to make enquiries about IIDB and SHA. Over 11 years after that a SSAT found that Mr G had suffered an IA on 11 November 1979. It is Mr G's contention that the main responsibility for that long delay rests with DSS who, he maintains, gave him misleading advice in 1980 about his eligibility to claim IIDB in respect of an IA.

11.37 I turn first to the nature of that IA suffered by Mr G in 1979. As established by the SSAT, the IA had three features: a carrying of heavy cable, a suffering of severe pain, and a collapse on to girders. The IA was therefore complex in nature, not consisting of one single straightforward incident. I regard that as important to bear in mind when considering what may or may not have passed between Mr G and DSS in March 1980.

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11.38 There are no contemporaneous records of those exchanges and DSS are unable to identify the officers who spoke to Mr G all those years ago. Even if they could, it seemed to me highly unlikely that they would be able to recall events with sufficient accuracy to add anything of value to the investigation, given the length of time that has elapsed. It is therefore not possible to say with certainty what was said in March 1980. It is, however, possible to take a view based on the balance of probabilities and on those records which do exist.

11.39 In describing what had occurred in November 1979 - whether that description was given to DSS, to medical practitioners or to the AMA - Mr G consistently mentioned two of the three factors of the IA as eventually accepted by the SSAT. (The two features in question are the carrying of heavy cable and the suffering of severe pain.) There is no record of his mentioning the third feature (collapse) until 1 October 1990 when he mentioned that he had ended up on the floor in pain. It seemed clear to me from the SSAT's finding, however, that the collapse on to girders had resulted from the other two features of the IA and had not itself been the cause of the severe pain Mr G had suffered. For that reason it is perhaps understandable that he might not have accorded it the same status as that of the other two features of the IA. Mr G is also recorded as having said on more than one occasion that he did not recall a "specific injury". DSS regarded those statements as significant in terms of what might have occurred in March 1980, but it seemed to me that they were perfectly consistent with the IA found by the SSAT. That IA had been a complex one and the only "specific injury" had been the severe pain experienced by Mr G, to which he most certainly made frequent reference as evidenced by the surviving records.

11.40 What does the above analysis imply for what Mr G is likely to have said to DSS in March 1980? Mr G has said that he mentioned all three features of his IA. The balance of probabilities suggested to me, however, that he may have mentioned only the first two features. (The first record of his mentioning the third relates to over ten years later, while he consistently mentioned the other two throughout the life of his case.) It also seemed likely to me that - as DSS subsequently suggested - the DSS officers who spoke to Mr G in 1980 took his description as relating to an accident by process rather than an IA. That indeed corresponds with Mr G's account that DSS had said that he had not sustained "an actual accident, there being no second or third party involved". It also seemed to me likely that, as subsequently suggested by DSS and stated by Mr G, the DSS officers went on to rule out eligibility for IIDB in respect of a PID.

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11.41 Mr G's IA was not a straightforward one and it would be understandable if DSS had told him in March 1980 that there was a likelihood that an application for IIDB in respect of an IA would be rejected if he were to submit one. The balance of probabilities suggests, however, that DSS went further than that and told him that he could not apply for IIDB in respect of an IA because what he had described did not constitute an IA. Was that reasonable advice? Since the balance of probabilities suggests that Mr G had described two of the three features that were eventually accepted by a SSAT as constituting an IA, I tended to the view that the advice was not reasonable. My view was reinforced by the AO's decision of 22 July 1993 to backdate SHA to January 1980. That decision was defective, in that the AO failed to take into account that payment of IIDB was a necessary qualification for payment of SHA. It is nevertheless clear that the AO took the view that DSS had been wrong in March 1980 not to recognise that what Mr G had described constituted an IA. That was the basis on which she awarded backdated SHA. The AO said that in 1980 different DSS staff had dealt with disability benefits matters and accident decisions. She adduced that as the reason why DSS had not recognised that what seemed like an accident by process in fact constituted an IA. She told BSB(DB) in August 1993 that it was clear Mr G should have been allowed to make a claim on form BI 100A in March 1980 when he had visited the local office of DSS. She accepted that Mr G had been misdirected. BSB(DB) took a strong view that Mr G had not been misdirected. They did not record at the time the reasons for that strong view. Although the case was referred to CAS, consideration was confined to the issue of whether it had been right to pay SHA in the absence of payment of IIDB.

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11.42 BSB(DB) did not return to the issue of misdirection until July 1994 when they again took the view that misdirection had not occurred. Their reasons were:

(a) neither Mr G nor his general practitioner had considered in 1980 that Mr G had sustained an IA;

(b) if Mr G had indicated that he had had "a specific accident" DSS would not have stopped him completing a form BI 100A even if he had produced a medical certificate showing incapacity due to golf elbow;

(c) there had been no mention of a "specific injury" and Mr G had attributed his condition to carrying heavy cables;

d) the IA as described by Mr G would have sounded like an accident by process or a PID.

My analysis above leads me to believe that the reasons put forward by BSB(DB) are not soundly based. As far as (a) and (b) are concerned, I have shown that Mr G consistently mentioned two of the three features of his IA which constituted a "specific accident". As far as (c) is concerned, the "specific injury" was the severe pain at the elbow which Mr G did indeed mention. As far as (d) is concerned, DSS staff in March 1980 are likely to have taken the description of the IA as being a description of an accident by process but - as I have earlier suggested - I do not regard that as the relevant point. On the basis of Mr G's description he should have been allowed to submit an application for IIDB. Further evidence of DSS's reluctance to recognise that Mr G might be describing an IA occurred in August 1982. In response to Mr G's claim that he had sustained an injury to his right arm in November 1979, DSS noted that he was referring to an "accident" but opined that Mr G was confusing that "incident" with the date from which his alleged disability due to a PID had started. They made no further enquiries of him to seek clarification of the IA.

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11.43 The absence of contemporaneous records makes it difficult to reach a conclusion on the issue of alleged misdirection in March 1980. However, my examination of existing documents led me to find, on the balance of probabilities, that Mr G had indeed been misdirected in that DSS had not allowed the completion of an application form BI 100A. I also found that the reasons put forward by BSB(DB) to support their rejection of the claim of misdirection had not been soundly based. I accordingly asked the Chief Executive of BA if he would have the rejection decision re-examined in the light of my findings. In reply, the Chief Executive said that there was evidence to support the view that the advice given to Mr G at the time of his visit to the local office in March 1980 had been correct and that there had been no departmental error or misdirection. He said that for compensation to be paid there had to be evidence of a clear and unambiguous error which had prevented Mr G from claiming IIDB in respect of an IA earlier than he actually did. The Chief Executive said that no such error had been identified and that therefore the decision not to compensate Mr G remained unaltered.

11.44 The Ombudsman found that reply unsatisfactory and asked the Chief Executive to reconsider the matter. The Ombudsman said he accepted that Mr G's case was a difficult one and that it would be understandable if Mr G had been told in March 1980 that he was unlikely to be successful should he base an application for IIDB on the fact that he had suffered an IA. The Ombudsman said the evidence suggested, however, that BA had gone one step further and had told Mr G that he would not be successful in an application because he had not suffered an IA. That appeared to the Ombudsman to constitute a clear and unambiguous error.

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11.45 The Chief Executive replied that because a SSAT had accepted good cause for a late claim, and because BA had made backdated payments of benefit, BA should make good any loss of use of funds that could have been enjoyed by Mr G had they been paid at the correct time. They accordingly agreed to make an ex gratia payment of £8,778.99 to Mr G. I welcomed that payment.

11.46 Finally I turn to the delay that occurred in the handling of some aspects of Mr G's case. The Chief Executive has acknowledged that there had been some delay in deciding Mr G's REA claims. During my investigation I also noted that there had been delay in progressing the case following Mr G's appeal against the decision of 25 March 1981 to disallow his claim for IIDB in respect of beat elbow. Although Mr G was examined by a consultant in August no reference was made to an AMA at that time and it was not until 11 January 1992 that he was examined by an AMA. I criticise DSS for that delay.

Conclusion

11.47 BA reconsidered their decision not to pay Mr G compensation for the loss of use of the arrears of backdated benefit and agreed to make him an ex gratia payment of £8,778.99. I considered that to be a suitable outcome to a justified complaint.

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Annex

Terms Abbreviations Used And Their Meanings

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Short text of this investigation

Last updated: 19 April 2006