Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1998] NISSCSC C4/98(II) (27 September 1999)

 


Decision Nos: C4/98(II), C1/99(II)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS) (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998 DISABLEMENT BENEFIT
Appeal to the Social Security Commissioner on a question of law from a Tribunals' decisions dated 27 April 1998

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. These are appeals by the claimant against the decisions of Social Security Appeal Tribunals relating to her entitlement to Disablement Benefit and come by leave of the Chairman of those Tribunals.
2. Briefly, the facts are that the claimant is a former civil servant now 50 years of age, who claimed Disablement Benefit and applied to have incidents on 20 October 1995 and on 26 September 1996 declared industrial accidents. While this matter was the subject of two separate appeals both parties agreed that the appeals should be heard together.
3. The first appeal relates to four separate incidents which occurred on 20 October 1995. It is claimed that these were accidents which resulted in the claimant being absent from work from 20 October 1995 until 14 April 1996. The second appeal relates to incidents in September 1996 resulting in the claimant's absence from work since 26 September 1996. An Adjudication Officer disallowed both claims on the grounds that it had not been established that there was an accident on either occasion.
4. Before detailing the facts the law is to be found in section 42(2) of the Social Security Administration (Northern Ireland) Act 1992 which reads:

"Section 42(2) provides:

(2) Subject to subsection (3) below and to section 58 below, any person suffering personal injury by accident shall be entitled, if he claims the accident was an industrial accident, to have that question determined, and a declaration made and recorded accordingly, notwithstanding that no claim for benefit has been made in connection with which the question arises; and this Part of this Act applies for that purpose as if the question had arisen in connection with a claim for benefit."

Section 42(6) provides:

"(6) For the purposes of this section (but subject to section 58(3) below), an accident whereby a person suffers personal injury shall be deemed, in relation to him, to be an industrial accident if -

(a) it arises out of and in the course of his employment;

(b) that employment is employed earner's employment for the purposes of Part V of the Contributions and Benefits Act;

(c) (not relevant)"

Claimant worked for almost 28 years in the Northern Ireland Civil Service and throughout that total period was employed in the field of Social Security. Since 1988 she was an AO1, responsible for the management of Income Support in the Larne Office. She was also a senior Adjudication Officer for Income Support, a local security administrator and an acting Premises Officer.

5. In April 1995 she took over responsibility for Social Fund as well as Income Support and her staff increased to 24. She was appointed District Security Specialist. She said that prior to 1995, there was a full-time SO manager in Larne, but under the management review the Carrickfergus office manager also managed the Larne office. She said the manager was rarely in the Larne office, possibly only for a few hours one day a week, and when he became ill the AO1 for Carrickfergus deputised in his absence. As he was under extreme pressure in Carrickfergus, he was also rarely seen in the Larne office. At about the same time the Income Support and Social Fund computer systems were going through a period of constant change and the claimant was starting work most days at 8am and not finishing until after 6pm. Eventually the stress was so bad that she attempted to discuss seeking part-time work with her district manager, but found him unhelpful. She continued full-time employment until 20 October 1995 when she was unable to continue working.
6. The claimant bases her first claim for Disablement Benefit on four separate incidents on that day.
7. The manager had returned from sick leave and claimant had a particularly bad day. She had problems with a member of staff and had also received a pile of instructions to read. While she was dealing with this (which she found very stressful) the computer system crashed. When all the computers crashed out the computer office support officer was on leave and her backup was unavailable. The claimant was the only person available to cope with the problem. She dropped everything and spent over an hour getting the system up again. When she came back to her desk she found a large pile of mail which had been left there by a manager. This mail included the letters and instructions about change of benefits problems with the system. The manager had left it on her desk and backdated it a week and marked it "action immediately". This gave the impression that she had had the instructions in the mail for a week and had not dealt with it. She said that that was "the final straw" and that she completely broke down and had to go home. She was in such a state she had to leave her car in the car park. She alleges that these four events were all separate accidents within the meaning of the Regulations.
8. She went back to work on a part-time basis in April 1996. From her evidence it would appear that she was treated very badly on reporting for work in a part-time capacity to such an extent that she became ill again and had to leave on 26 September 1996.
9. The claimant appealed against the Adjudication Officer's decisions to a Social Security Appeal Tribunal. However, the Tribunal upheld the decisions and made the following findings of fact and reasons for decision in both cases.

The findings of fact were as follows:-

"It is accepted by Tribunal that Appellant was put under additional stress with an increased workload at her place of business, from in, or about, April 1995 until she left the employment she was then in on 20 October 1995 and that she re-commenced work on, or about 15 April 1996 in a part-time capacity. Again she found the workload too much for her to handle and the attitude of the people she worked with difficult to accept, so that she became stressed and left this employment on, or about, 26 September 1996. She has not worked since that date."

The reasons for the Tribunal's decision were as follows:-

"Tribunal accepts the evidence that the Appellant found the increasing workload and atmosphere in the two positions occupied by her between April 1995 and 20 October 1995, and between 15 April 1996 and 26 September 1996, respectively, to be stressful and difficult to accept and that this, at least in part, has caused the condition from which she claims she now suffers.

However, it is the view of the Tribunal that this amounts to a process over the two periods concerned rather than an "accident" which occurred on either 20 October 1995 or on 26 September 1996. Accordingly Tribunal finds that Appellant did not suffer an Industrial Accident on either of these dates, within the meaning of Section 42(1)(2) of the Social Security Administration Act 1992.

In considering the evidence and reaching our decision, we have considered and applied the meaning of the word "accident" as defined in the Commissioners' and Court of Appeal decisions cited by the Adjudication Officer in his submissions."

10. The claimant applied to the Chairman of the Tribunal for leave to appeal to a Commissioner on the grounds that the Tribunal had misinterpreted the word "accident" as used in Regulation 42 or, in the alternative, that the Tribunal made an unreasonable finding of fact that the incidents claimed were not accidents. The Chairman granted leave to appeal.
11. I arranged an oral hearing of the appeal, at which the claimant was not present but represented by Miss L… and the Adjudication Officer was represented by Miss Griffin.
12. Miss L… referred to the long and detailed statement which the claimant had supplied to the Tribunal and said that the four incidents detailed in her claim were identifiable as accidents. Any one of them could be treated as an accident and that when the last incident occurred (relating to the post), it was the "last straw" and the claimant was completely put over the edge and had to leave work.
13. She then referred to 26 September 1996. The claimant again found that the stress was difficult to cope with and she could not continue to work. As a result, she left and did not return. Miss L… accepted that it would be difficult to identify any particular incident in September 1996 that could properly be referred to as an accident, but she argued that the incidents described relating to 20 October 1995 were clearly identifiable as accidents. Up to that point the claimant had been working, although under stress. The fact that one particular incident put her over the edge did not take away from the fact that this was the last in a series of incidents.
14. Miss L… then referred to the House of Lords case, Selvage -v- Burrell (Charles) and Sons Ltd [1921] 1K.B.355. in which a lady was exposed to poisonous substances. She had numerous cuts on her hands and one of the cuts became infected and resulted in blood poisoning. The court held that this was an accident and not a process. Miss L… also referred to CI/554/92 and CI/15589/96 in which there were a series of incidents and several other cases in which a Tribunal rejected the argument that the injuries were the result of a process. She also quoted CSI/26/96 which is a Scottish decision in support of the contention that although there are various incidents, nevertheless, one incident which can be identified is sufficient.
15. Miss Griffin referred to her written memorandum of 11 January 1999 which relates to the claimant's first appeal. In this, she set out clearly the relevant matters for consideration and what points should be considered. In the memorandum she argued:-

"(a) Did the Tribunal on 27 April 1978 misinterpret the term

"accident" by deciding that Mrs Y… did not have an industrial

accident on 20 October 1995?

Commissioners have held that the word "accident" must be

interpreted in accordance with the ordinary popular meaning of

the word and signifies an undesigned or untoward event which is

not in itself desired by the employed earner and which occurs

by chance.

In decision R(I) 52/51 a Great Britain Commissioner dealt with

a case where the claimant did not contend that the aggravation

of his condition was the result of any specific incident but

that it was the result of the general strain of his work. At

paragraph 6 of his decision the Commissioner held that there

must have been a particular moment at which the injury (be

it an initial injury or an aggravation of an existing condition)

occurred.

In their record of proceedings the Tribunal noted that Mrs Y…

stated that she had several incidents of an unreasonable work

load being placed on her by her employers, however she could not

point out any accident as such. She also stated that the problems

of work on 20 October 1995 were particularly bad and she found that

she could no longer cope and had to leave her post.

While it is accepted that Mrs Y… was put under additional stress

and anxiety as a result of an increased work load from April 1995,

there does not appear to be a particular moment in time when an

injury occurred. Although she left her employment on 20 October

1995 because she could no loner cope, this was due to pressure

at work over a period of time (from April 1995 to October 1995).

As previously stated, an "accident" has to be an unforeseen

occurrence and occur by chance and this issue was dealt with

recently by Commissioner's in Great Britain. In unreported

decision CI/15589/1996 ... the case concerned a prison

officer who suffered stress as a result of being in a dangerous

situation with a known violent prisoner. At paragraph 12 of

this decision the Commissioner decided that the claimant was

entitled to have the incident declared as an industrial accident

because the claimant had shown that there was an incident outside

the normal range of his duties.

In decision CSI/26/96 ... the Commissioner was dealing

with the case of a fireman who had to attend a series of disasters

and as a result was now suffering from stress. At paragraph 12

of his decision the Commissioner accepted that these incidents

were accidents because they were exceptional incidents and not

part of his everyday professional duties. This decision was

subsequently appealed to the Court of Session who on 3 June 1998

upheld this decision. This decision is currently the subject of

an appeal to the House of Lords.

I would submit that the incidents which occurred on 20 October 1995

such as problems with the computer system, an ongoing conflict with

a member of staff and post left on her desk which had been dated a

week earlier, are everyday duties of a section manager and not

exceptional incidents.

It is not in dispute that Mrs Y…'s incapacity was caused by

general strain of her work however there is no evidence of an

"accident" having occurred.

(b) Were the Tribunals findings that Mrs Y…'s condition was

the result of a process as distinct from an accident erroneous in

law?

In giving consideration to the question whether Mrs Y… has

established that there was an event in itself identifiable as

an accident or a particular occasion on which personal injury

was suffered which could constitute an accident, it is necessary

to make a distinction between injury by accident and injury by

process as the latter is not within the scope of the industrial

injuries scheme.

A Great Britain Commissioner in decision CI/16439/1996 ...

dealt with a case of an application for a declaration that the

claimant suffered an industrial accident resulting from stress due

to victimisation and harassment from managers. At paragraph 9 of

his decision the Commissioner stated that the evidence supports the

view that the psychological problems were caused by the general

strain at work and were in the nature of a process. The Commissioner

accordingly decided that the claimant was not entitled to the

declaration sought.

In a similar case (CI/15688/96 ...) a Great Britain

Commissioner considered the case of a man, aged 44, who made

three separate claims for industrial accident declarations saying

he suffered such accidents on each of 4 December, 7 December and

9 December 1992 and was shortly after these dates found to be

suffering from a psychological disorder variously characterised

as post-traumatic stress disorder, depressive illness and anxiety

state. The claimant in this case had, until mid 1992 enjoyed a

good deal of autonomy and authority in his work but had become

increasingly subject to scrutiny and criticism by superiors. He

was humiliated by having his department reorganised, his budget

and authority cut and by having disciplinary proceedings brought

against him (paragraph 4).

In paragraph 6 of this decision the Commissioner held that before

a claimant can qualify for any benefit it is necessary to identify

an event or incident at or related to the work which can be

characterised as an "accident". He also stated that it is well

established by case law that this condition is not satisfied if

what the person suffers from is a condition which builds up

over a period of time, even though the build-up is caused wholly

by things that happen or pressures to which he is subjected in

the course of his work.

In another case, were the circumstances were similar to those of

Mrs Y…, (FRASER v SECRETARY OF STATE FOR SOCIAL SERVICES ...) the Great Britain Commissioner determined

an appeal from a civil servant who developed acute anxiety due

to various strains in his work. At paragraph 11 of this decision

the Commissioner held that a change in the legislation would be

required before a nervous disorder due to a period of strain

arising from uncongenial working conditions would be recognised

as personal injury by accident. This decision was subsequently

appealed to the Court of Session who on 5 October 1984 refused

the application.

I would submit that it is clear from the Tribunal's findings of

fact and reasons for their decision that they correctly identified

and directed their minds to the only real issue to be addressed in

the present case.

They accepted Mrs Y…'s evidence of her illness and her version

of the incidents but nevertheless decided that her condition

resulted from an increasing work load and atmosphere at her place

of work over a period of time (April 1995 to 20 October 1995).

Clearly they took the view that her condition was due to "injury

by process" rather than specific incidents identifiable as

accidents. That would appear to be a reasonable conclusion on

their part, and a decision they were entitled to reach on the

evidence before them, e.g. Mrs Y…'s statement on form MF 17

dated 17 November 1997 (Tab no 13) that her illness was caused

by a build up of stress over the period April 1995 to October 1995.

Conclusion

For the reasons set out above, I would submit that the Tribunal did

not err in by deciding that Mrs Y… did not have an industrial

accident on 20 October 1995."

16. At this point I raised the question of the findings of fact by the Tribunal because it was clear that claimant's first appeal rested on four specific incidents which were detailed in her claim. In the findings of fact the Tribunal did not deal with these specific allegations and I am satisfied that the Tribunal erred in not making a proper finding of fact. It should have either accepted or rejected the allegation by the claimant that each of these incidents constituted an accident, in particular when claimant said that her case was that the final incident put her over the edge and caused her break-down. The Tribunal came to the conclusion that her problems were caused by a process and not by an accident and should have made findings on each of the four incidents. I therefore allow the appeal and set aside the decision of the Tribunal.
17. I discussed with the parties whether or not the matter should be referred back to be reheard by a different Tribunal or whether I should hear evidence from the claimant relating to the various incidents which she alleged were accident and then give the decision which the Tribunal should have given. Miss Griffin preferred to have the matter remitted to be reheard by a different Tribunal. Miss L… thought that in fairness to the claimant the matter should not be prolonged any longer and that she would prefer if I were to hear evidence and give a final decision, but she was not opposed to referring the matter back. I considered that in fairness to the claimant and because of the fact that her complaint was of a nervous nature it would be in her interests to have the matter finalised so I adjourned to hear evidence from the claimant and to allow Miss Griffin to call whatever evidence she considered was necessary.
18. At the reconstituted hearing the claimant appeared and gave evidence about the various incidents of 20 October 1995. She confirmed the information in her statement which I have referred to above. She said that it was a very stressful day due to having a difficult interview with one of her junior staff, the system breaking down, and getting piles of documents to read. The final incident was where the manager had left a week of post for her immediate attention and back-dated the post for a week so that it would appear that she had not dealt with it. This was the one incident which put her over the edge and she was unable to continue.
19. She also gave evidence about various incidents in September 1996 and how she was treated after she returned to work part-time.
20. Miss Griffin questioned her about her work, her work description and the various procedures in the office. Claimant handed in a job description relating to her activities.
21. Miss L… argued again that there was sufficient evidence to identify the various incidents as accidents and in particular, the incident relating to the back-dating of the post.
22. Miss Griffin reiterated her arguments which were clearly set out in her memorandum relating to the first appeal and said that all the incidents referred to by the claimant were merely a combination of a process - the computer crashing, the ongoing conflict with the member of staff and the post being left on her desk and pre-dated were all part of her duties and were not exceptional incidents. She accepted that claimant suffered great strain from her work but said that there was no identifiable incident which could be regarded as an accident. She said that as far as the second appeal was concerned there was no evidence identifying any particular incident as an accident.
23. I have considered all that has been said and I have considered all the arguments in the submissions and the oral hearings. I accept Miss Griffin's argument which I think is not really in dispute that before claimant could qualify for the declaration sought it is necessary to identify an event or an incident at, or relating to, the work which can be characterised as an accident. It is well established by case law that this condition is not satisfied if what the person suffers from is a condition which builds up over a period of time in the course of employment even though the effect at the end of the day is just as disabling in terms of a person's capacity to go to work had as suffering an accident, (for example, catching one's hand in a machine as the Commissioner referred to in CI/15688/96) and detailed in Miss Griffin's submission. The Tribunal held that the incidents amounted to a process. I have considered the four incidents on 20 October 1995 relied upon by the claimant and it is quite clear that three of the incidents, namely the interview with the junior member of staff, the accumulation of instructions and the crash of the computer, were all stressful events but none could be described as an accident. I am supported in this by the decision of the appeal to the Court of Session concerning CSI/26/96 in which the Court held:-

"In applying the ordinary meaning of accident to any set of

circumstances it would be entirely appropriate and necessary

to apply the test of whether or not the circumstances

encountered fell within the normal expected range of circumstances

for a person engaged in such employment."

I am satisfied that this applies to the claimant's first three incidents. I am also satisfied that there is no incident in the second claim relating to 26 September 1996 which could be remotely identified as an accident. I believe Miss L… has accepted this. That leaves the one incident in which claimant alleged put her over the edge, namely the back-dating of the post. I find that it was an exceptional incident and reject Miss Griffin's argument that that was part of the everyday duties of a section manager. I also reject her argument that claimant's case is similar to the Fraser case as there was no identifying incident in the Fraser case or that that one incident is part of a process. I am satisfied as in CSI/26/96, that although there were various incidents, one incident is sufficient if it can be identified as an accident rather than being part of a process.

I am satisfied that the post incident can be identified as an accident within the meaning of the Regulations and I so hold, but I reject the argument that all the other incidents can be described as accidents. Claimant is entitled to a declaration that one incident on 20 October 1995 can be identified as an industrial accident.

I am indebted to both parties for the effort which was put into this case and for the high quality of the submissions. It is clear from the evidence that claimant was suffering from severe stress for some time. I find it hard to understand why

no-one in authority took any steps to assist the claimant before she suffered her breakdown.

(Signed): CCG McNally

COMMISSIONER

27 September 1999