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Neutral Citation Number:	2015 UKUT 613 AAC
Reported Number:
File Number:	CCR 5220 2014
Appellant:	Aviva Insurance Limited
Respondent:	Secretary of State for Work and Pensions (CR)
Judge/Commissioner:	Judge E. Mitchell
Date Of Decision:	03/11/2015
Date Added:	23/11/2015
Main Category:	Compensation recovery
Main Subcategory:	cause of payment of benefits
Secondary Category:	Industrial diseases
Secondary Subcategory:	D1 (pneumoconiosis)
Notes:	Reported as [2016] AACR 29. Compensation recovery – scope of appeal – Social Security (Recovery of Benefits) (Lump Sum Payment) Regulations 2008 – Pneumoconiosis etc. (Workers’ Compensation) Act 1979 Industrial disease – mesothelioma Aviva Insurance Ltd, the compensator, settled several civil claims by making of payments to various appellants all of whom had previously been awarded lump sum payments under the Pneumoconiosis etc. (Workers’ Compensation) Act 1979 for diffuse mesothelioma. Following that settlement the Secretary of State sought to recover from Aviva, under the Social Security (Recovery of Benefits) (Lump Sum Payment) Regulations 2008, the cost of lump sum payments made to the appellants under the 1979 Act. Aviva’s appeal against that decision was rejected by the First-tier Tribunal (F-tT); it held it was being invited to disapply the law (not interpret it). Aviva appealed to the Upper Tribunal (UT) and the central issue before it was the meaning of “relevant employer” for the purposes of the 1979 Act (the existence of a relevant employer still in business defeats a 1979 Act claim). It was argued before the UT on behalf of Aviva that the Secretary of State had misconstrued the 1979 Act and that in order to give effect to Parliament’s intentions the word “and” between the two excluded periods in paragraph 7(1) of the Schedule to the 1979 Act should be construed disjunctively so that they were mutually exclusive: one being for claims for mesothelioma and the other for claims for all the other relevant diseases. Held, dismissing the appeal, that: 1. the 2008 Regulations are a free-standing scheme for the recovery of lump sum payments from compensators. On proper analysis, it was clear that the Social Security (Recovery of Benefits) Act 1997 did not apply directly to lump sum payments (paragraph 19); 2. if an Act puts “and” between two components of an enactment, Parliament is likely to be signalling that the components operate conjunctively. Otherwise “or” would be expected (paragraph 35); 3. the two excluded periods of employment in paragraph 7 of the Schedule to the 1979 Act both applied to mesothelioma claims and, taking the legislative and wider legal context into account, it was clear that the disjunctive interpretation did not reflect the legislative intention (paragraphs 45 and 47); 4. mesothelioma claims under the 1979 Act arising from employments that ended more than 20 years before the disabled person’s qualifying date are excluded and cannot defeat the claim. The Secretary of State’s certificates under the 2008 Regulations validly referred to lump sum payments made in accordance with the 1979 Act (paragraph 48); 5. the criteria for having recourse to Ministerial statements were not satisfied as paragraph 7 of the Schedule was not ambiguous: Pepper v Hart [1993] AC 593. Any linguistic ambiguity disappeared once the wide legislative and legal context was taken into account. If that was wrong, the relevant Parliamentary materials supported the Secretary of State’s submission; there was no indication of an intention that the “exclusion of employments ending more than 20 years ago” category should not apply to mesothelioma claims (paragraphs 49 to 52).
Decision(s) to Download:	[2016] AACR 29ws.doc