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Cite as: [2016] NICom 67
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BM-v-Department for Communities (II) [2016] NICom 67
Decision No: C4/16-17(II)
SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992
SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998
INDUSTRIAL INJURIES DISABLEMENT BENEFIT
Appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 27 February 2015
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is a claimant’s application for leave to appeal from the decision of an appeal tribunal sitting at Belfast.
2. For the reasons I give below, I grant leave to appeal. However, I disallow the appeal.
REASONS
Background
3. The applicant claimed industrial injuries disablement benefit (II) from the Department for Social Development (the Department) on the basis of an industrial accident. On 31 March 2014 the Department decided on the basis of all the evidence that the applicant did not satisfy the conditions of entitlement to II on the basis that there was no event or occasion which constituted an accident or which was identifiable as an accident. The applicant appealed.
4. The appeal was considered by a tribunal consisting of a legally qualified member (LQM), and two medically qualified members. After a hearing on 27 February 2015 the tribunal disallowed the appeal. The applicant then requested a statement of reasons for the tribunal’s decision and this was issued on 18 June 2015. The applicant applied to the LQM for leave to appeal from the decision of the appeal tribunal but leave to appeal was refused by a determination issued on 4 August 2015. On 17 August 2015 the applicant applied to a Social Security Commissioner for leave to appeal.
Grounds
5. The applicant submits that the tribunal has erred in law on the basis that the tribunal had failed to give the correct meaning to the term “incident” [sic] and had failed to take into account a series of incidents which had led to the applicant’s illness or injury. I consider that the applicant intended to refer to the term “accident”, which appears in the legislation, rather than incident, which does not.
6. The Department was invited to make observations on the applicant’s grounds. Mr Hinton of Decision Making Services (DMS) responded on behalf of the Department. Mr Hinton submitted that the tribunal had not erred in law as alleged and indicated that the Department did not support the application.
The tribunal’s decision
7. The tribunal had documentary material before it which included the Department’s submission, an e-mail, a bundle of documents and a letter from the applicant, the applicant’s medical records and Commissioner’s decisions C3/10-11(II) (neutral citation NA v Department for Social Development [2011] NI Com 138) and C5/10-11(II) (neutral citation PSW v Department for Social Development [2011] NI Com 172).
8. It heard oral evidence that the applicant received an e-mail attaching a letter from his employer on 15 March 2011. The letter referred to an unauthorised disclosure of information from his employer’s database, advised him of an investigation into this and asked him to attend for interview. The applicant was sent an e-mail on 15 April 2011 advising him that he would be at risk of disciplinary action if he did not attend the interview. He was interviewed on 5 May 2011. On 30 June 2011 he was advised that the investigation was suspended (having previously understood that the investigation was closed).
9. The applicant had experienced some health problems subsequently and was absent for work for reasons of ill health between January 2012 and April 2012. He returned to work, but reduced his hours to a 2-day week from May 2014. The applicant submitted that the four events referred to above between 15 March 2011 and 30 June 2011 constituted industrial accidents. The tribunal did not accept this submission. It concluded that there was no event which was identifiable as an accident, or a particular occasion on which personal injury was suffered that would constitute an accident, and that a declaration of an industrial accident could not be made.
Relevant legislation
10. The relevant statutory provisions for the purposes of this application are Articles 29 and 30 of the Social Security (NI) Order 1998. These provide:
Decision that accident is an industrial accident
29. (1) Where, in connection with any claim for industrial injuries benefit, it is decided that the relevant accident was or was not an industrial accident-
(a) an express declaration of that fact shall be made and recorded; and
(b) subject to paragraph (3), a claimant shall be entitled to have the issue whether the relevant accident was an industrial accident decided notwithstanding that his claim is disallowed on other grounds.
(2) Subject to paragraph (3) and Article 30, any person suffering personal injury by accident shall be entitled, if he claims the accident was an industrial accident-
(a) to have that issue decided; and
(b) to have a declaration made and recorded accordingly,
notwithstanding that no claim for benefit has been made in connection with which the issue arises; and this Chapter shall apply for that purpose as if the issue had arisen in connection with a claim for benefit.
(3) The Department, an appeal tribunal or a Commissioner (as the case may be) may refuse to decide the issue whether an accident was an industrial accident if satisfied that it is unlikely to be necessary to decide the issue for the purposes of any claim for benefit; and this Chapter shall apply as if any such refusal were a decision on the issue.
(4) Subject to Articles 10 to 15 and to section 22 of the Administration Act, any declaration under this Article that an accident was or was not an industrial accident shall be conclusive for the purposes of any claim for industrial injuries benefit in respect of that accident.
(5) Where paragraph (4) applies-
(a) in relation to a death occurring before 11th April 1988; or
(b) for the purposes of section 60(2) of the Contributions and Benefits Act,
it shall have effect as if at the end there were added the words “whether or not the claimant is the person at whose instance the declaration was made”.
(6) For the purposes of this Article (but subject to Article 30), 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; and
(c) payment of benefit is not under section 94(5) of that Act precluded because the accident happened while he was outside Northern Ireland.
(7) A decision under this Article shall be final except that Articles 10 and 11 apply to a decision under this Article that an accident was or was not an industrial accident as they apply to a decision under Article 9 if, but only if, the Department is satisfied that the decision under this Article was given in consequence of any wilful non-disclosure or misrepresentation of a material fact.
Effect of decision
30 (1) A decision (given under paragraph (2) of Article 29 or otherwise) that an accident was an industrial accident is to be taken as determining only that sub-paragraphs (a), (b) and (c) of paragraph (6) of that Article are satisfied in relation to that accident.
(2) Subject to paragraphs (3) and (4), no such decision is to be taken as importing a decision as to the origin of any injury or disability suffered by the claimant, whether or not there is an event identifiable as an accident apart from any injury that may have been received.
(3) A decision that, on a particular occasion when there was no event so identifiable, a person had an industrial accident by reason of an injury shall be treated as a decision that, if the injury was suffered by accident on that occasion, the accident was an industrial accident.
(4) A decision that an accident was an industrial accident may be given, and a declaration to that effect be made and recorded in accordance with Article 29, without its having been found that personal injury resulted from the accident.
(5) Paragraph (4) has effect subject to the discretion under Article 29(3) to refuse to decide the issue if it is unlikely to be necessary for the purposes of a claim for benefit.
Hearing
11. I held an oral hearing of the application. The applicant was present and was represented by Mr Fegan of counsel, instructed by Mr Murphy of the Elliott Trainor partnership. The Department was represented by Mr Hinton of DMS. I am grateful to the representatives for their helpful submissions.
12. Mr Fegan outlined that there was a considerable element of agreement between the parties as to the background law. They agreed that an accident must arise from an event or a series of events, rather than a process (referring to Chief Adjudication Officer v Faulds [2000] UKHL 26). They agreed that the event itself can include a conversation, albeit that the conversation itself must constitute the accident, not any contemplation of loss following on from it (referring to CI/105/1998).
13. The applicant relied on four separate events to ground his case that an industrial accident had occurred, namely the first notice that an investigation was to take place and that he was required to attend an interview, the indication that disciplinary procedures might be used if he failed to attend, the interview itself and a subsequent communication notifying him that the investigation was suspended.
14. The case advanced was essentially to the effect that untoward circumstances were present in each instance of the employer’s treatment of the applicant. One such allegation was that the investigation was commenced under Conduct and Discipline procedures appearing in part 6.03 of NI Civil Service policy, rather than less formal procedures in part 6.01 relating to Standards of Conduct. The applicant discovered that other people were interviewed as part of the investigation under different procedures to him. He relied on a response to a Freedom of Information Act request which confirmed that three people were sent a similar letter to the one he received on 15 March 2011, whereas eight were interviewed for the purposes of the investigation. He submitted that the interview was unnecessary as he had provided the required information and that a letter merely suspending the investigation, after he had been told that the investigation was closed, was a further untoward event.
15. Mr Fegan submitted that the use of wrong procedure by an employer would amount to an untoward event. It did not appear that the procedures in question in chapters 6.01 and 6.03 of the NI Civil Service Handbook were expressly placed before the tribunal. However, the tribunal considered the matter in terms of the propriety and reasonableness of the employer’s conduct.
16. Asked if it was an objective question or a subjective matter of the claimant’s perception as to whether an event was untoward, Mr Fegan submitted that it was subjective, and relied on paragraph 20 of CI/105/98(II) - a decision of Great Britain Social Security Commissioner Rowland where the learned Commissioner said that:
“it is apparent, relying on Fenton v Thorley & Co Ltd and similar cases that injury can be said to be caused by accident if it arises from an untoward reaction to an event that would not itself be characterised as an accident”.
17. Mr Hinton submitted that, on the facts of the case, the applicant had not been accused of anything by the employer. He referred to the correspondence from the employer relating to the investigation and submitted that on the evidence before it the tribunal was perfectly entitled to conclude that the employer had acted properly and reasonably towards him. He submitted that nothing in the submissions of Mr Fegan had impugned the conduct of the investigation, which had been measured and professional in the tribunal’s view.
Assessment
18. The decision of the tribunal which is under challenge in these proceedings was addressed to the question of whether any or all of four events relied upon by the applicant amounted to an “industrial accident”. The tribunal found that the applicant relied upon four events. These were:
(i) the receipt of a letter in the form of an e-mail attachment on 15 March 2011 asking him to arrange an interview with the Assistant Department Security Officer about an unauthorised disclosure of official information;
(ii) the receipt of an e-mail dated 15 April 2011 which indicated that failure to comply with the request to arrange the necessary meeting may result in disciplinary measures being considered;
(iii) his attendance at the investigatory interview on 5 May 2011;
(iv) the receipt of a letter on 30 June 2011 from the Departmental Security Officer indicating that he was suspending the investigation rather than closing it.
19. The tribunal considered the circumstances of the case and found that “the applicant’s employers acted perfectly properly and reasonably towards him in connection with the alleged leak of information to a newspaper”. It found that “all the communications emanating from his employer are couched in appropriate and measured terms and do not contain anything which would reasonably give rise to undue alarm, concern or fear and certainly nothing which could cause the reactions described by [the applicant] upon receiving the e-mail of 15.3.11 (“heart attack inducing … insulting … bombshell”). The tribunal stated that “the e-mail does not imply as asserted by [the applicant] that he could not be trusted, nor that he was a prime suspect. Furthermore the memo of 15.4.11 does not, as asserted by [the applicant] threaten him with further disciplinary action”.
20. I understand the difference between the parties to concern the question of whether the tribunal had misdirected itself in law in its approach to the applicant’s submission that his employer’s procedure was untoward, and whether it made rational findings on that submission.
21. I observe that the claim submitted by the applicant described the accident in the following terms:
“Injury [anxiety depression] sustained as a direct result of being wrongly alleged to have involved in committing an act of gross misconduct and being wrongly subjected to the disciplinary process by DARD Departmental security”.
22. The applicant had based his case, as indicated, on four separate events. I am prepared to accept that the applicant’s mental health worsened over a period of time. I am also prepared to accept that the four events in question represented a series of incidents rather than a process. The issue is whether any or all of those incidents would properly be described as an accident.
23. While the tribunal was concerned with the issue of whether any or all of the four events in question amounted to an “industrial accident”, that expression is not defined in the relevant legislation. Therefore it is necessary to consider the relevant case law in order to assess whether the tribunal has misdirected itself in its approach to determining the factors relevant for assessing whether the expression would extend to the circumstances described by the applicant.
24. The adjudicating authorities in the social security jurisdiction have relied on the body of jurisprudence built up under the Workmen’s Compensation Acts, which had preceded the industrial injuries benefits scheme and which had been replaced by it. Lord MacNaghten in Fenton v Thorley [1903] AC 443, which concerned the meaning of “accident” for the purposes of the Workmen’s Compensation Act 1897, applied a purposive construction, relying on the title of the Act. That case concerned the question of whether an injury sustained in the course of routine work activity was injury by accident. The workman had ruptured himself in turning a stiff wheel on a machine which was later found to be defective. However, nothing turned on the fact that the machine was defective. Lord MacNaghten said:
“I come, therefore, to the conclusion that the expression “accident” is used in the popular and ordinary sense of the word as denoting an unlooked-for mishap or an untoward event which is neither expected nor designed”.
25. The popular and ordinary sense of the word may be elusive, however, as illustrated by Trim Joint District School Board of Management v Kelly [1914] AC 667. There, in a case under the Workmen’s Compensation Act 1906, there was division in the House of Lords as to whether the murder of a schoolteacher by his pupils could reasonably be considered an “accident”. However, the majority concluded that accident included, in the words of Viscount Haldane, “a mishap unexpected by the workman, irrespective of whether or not it was brought about by the wilful act of someone else”.
26. The jurisprudence further recognises the distinct nature of the concepts of injury and accident. In Fife Coal Co Ltd v. Young [1940] 2 All ER 85, a case under the Workmen’s Compensation Act 1925, at page 91, Lord Atkin stated:
“A man suffers from rupture, an aneurism bursts, the muscular action of the heart fails, while the man is doing his ordinary work, turning a wheel or a screw, or lifting his hand. In such cases, it is hardly possible to distinguish in time between accident and injury. The rupture which is accident is at the same time injury, from which follows at once, or after a lapse of time, death or incapacity. The distinction between the two must be observed however”.
27. In Chief Adjudication Officer v Faulds [2000] 2 All ER 961, Lord Clyde reminded us that Lord MacNaghten’s formulation is to be taken as descriptive and not definitive. He said that the question of whether there has been an accident requires particular consideration to be paid to the victim. Faulds confirms that something that happens in the ordinary course of employment can still be an accident. Lord Clyde in Faulds stated that “unquestionably shock or stress disorder can qualify for industrial injury benefit”. However, he noted that:
“The present case is not one of physical injury but of stress, and the problem in the present case is to apply the Act to a case of psychological injury. The question then arises how the principles which have been developed in relation to physical injury are to be applied to such a case. The approach in principle should be the same. But in this more subtle, and perhaps more complex, area of injury, some care and delicacy is required in the application of the principles. Cases of stress and psychological injury may call for particularly detailed examination”.
28. The authorities most relevant to the present case involve psychological injury. The first of these is CI/5249/1995, a decision of Great Britain Social Security Commissioner Rice. That case involved a barman who was told to leave the premises where he worked pending a security investigation. The claimant stated that in consequence he suffered depression, anxiety, an absence of energy and loss of confidence. The claimant was suspended on full pay, whilst the alleged misconduct was investigated. In due course, he was in fact dismissed. The claimant contended that the shock of his suspension had given rise to his condition, and that accordingly he was entitled to a declaration of an accident pursuant to section 44(2) of the Social Security Administration Act 1992.
29. In that case the Department argued that to describe the suspension of the claimant as an accident was a travesty of the use of the English language. It was submitted that the employer’s action might have been unexpected by the claimant, but that did not make it an accident. The word “accident” carried with it the concept of an unwelcome and unexpected mishap arising in the course of events. It was submitted that the suspension of the claimant by his employers was nothing more than the exercise of a right available to them under employment law. They were, in suspending the claimant in order that the allegation of misconduct could properly be investigated, doing no more than what was required of any employers in the circumstances of the case. To describe that action as an accident flew in the face of any common sense interpretation of the word “accident”. Commissioner Rice agreed with the Department’s submissions in the case.
30. In CI/105/98, Great Britain Commissioner Rowland considered a case where a schoolteacher had alleged that he had suffered unreasonable and aggressive criticism from the principal and that as a result he had suffered from depression. The tribunal had allowed the claimant’s appeal from a decision that he had not suffered an industrial accident. The learned Commissioner stated that:
31. This principle has been accepted in our own jurisdiction by Chief Commissioner Martin. In NA v Department for Social Development [2011] NI Com 138, the claimant was a police officer who had been notified of a terrorist threat to him by a Chief Inspector. He developed post-traumatic stress disorder and claimed that the conversation with the Chief Inspector amounted to an industrial accident. Chief Commissioner Martin said at paragraph 24:
“24. Mr Commissioner Rowland, in my view, has set out the proper approach at paragraph 19 of CI/105/1998 (quoted at paragraph 16 herein). The Chief Inspector was obliged to have the conversation/interview with the claimant. If he had not done so, he would have been in dereliction of his duty. There is no suggestion that he carried out his task in anything other than a professional and courteous manner. Accordingly, I conclude that on the evidence available to the tribunal, the ‘event’ is not capable of being ‘untoward’. However, the tribunal specifically did not find that the conversation with the Chief Inspector was, in itself, an accident but, rather, accepted that the conversation unintentionally caused him to sustain personal injury.
25. Moreover, even if the event was capable of being classified as being ‘untoward’, the claimant has to satisfy the tribunal that the injury arose out of the event of the conversation, as opposed to the realisation of the implications of what had been said …”.
32. The applicant relies on four events. The first and second refer to the receipt of an electronic communication. The third refers to an interview. The fourth refers to receipt of a letter. It seems to me that, once it is accepted that spoken words - provided they are untoward - used in the course of a conversation between an employer and employee are capable of causing an “accident”, written words in a communication between an employer and an employee - again provided that they are untoward - cannot be distinguished in principle.
33. The tribunal sets out the test it applied at pages 3 and 4 of its statement of reasons. The crux of its decision is that:
“none of the situations or circumstances … could … even remotely come within the ordinary popular meaning of an accident … it seems to us that [the applicant’s] employers acted perfectly properly and reasonably to him in connection with the alleged leak of information to a newspaper. All the communications emanating from his employer are couched in appropriate terms and do not contain anything which could reasonably give rise to undue alarm, concern or fear … Specifically the e-mail does not imply as asserted by [the applicant] that he could not be trusted, nor that he was a prime suspect. Furthermore the memo of 15.4.11 does not, as asserted by [the applicant] threaten him with further disciplinary action”.
34. Mr Fegan had relied on paragraph 20 of CI/105/98(II) where Commissioner Rowland said that:
“it is apparent, relying on Fenton v Thorley & Co Ltd and similar cases that injury can be said to be caused by accident if it arises from an untoward reaction to an event that would not itself be characterised as an accident”.
35. To the extent that this is a submission that the applicant’s subjective reaction to the events in question - and possible psychological injury - is enough to establish that an accident has occurred, I cannot accept it. Fenton v Thorley & Co Ltd was addressed to the question of whether an injury resulting from a routine work task, as opposed to an unforeseen mishap in the course of work, would be properly described as an accident. The untoward reaction in that case was the physical consequence of the workman suffering a rupture by attempting to open the overtight screw on a container lid. This was a job he did every day and in that sense it was not be characterised as an accident. I consider therefore that Commissioner Rowland was addressing a different issue at this part of his decision. It is clear that accident and injury remain separate matters. The point is that an accident could properly describe the performance of a routine work task which resulted in injury. However, there was an untoward aspect to the ordinary routine work task in Fenton v Thorley & Co Ltd, namely that the container lid was stuck.
36. Mr Fegan is right to submit that the effects of injury have to be considered in subjective terms, as the consequence of an accident for the particular workman. However, whether something is an “accident” remains subject to the general principles I have addressed above, and in particular an untoward aspect would have to be demonstrated in order to turn an ordinary conversation or an ordinary work communication by e-mail or letter into an “accident”.
37. It appears to me that the tribunal has not misdirected itself as to the proper legal test to apply. In particular, it adopts the correct approach to determining what might constitute an accident in the light of the jurisprudence discussed above. It has addressed the ordinary popular meaning of the work accident and has considered whether the applicant’s treatment by his employer contained any untoward aspects. It has not conflated the questions of accident and injury. Having looked at its statement of reasons, I do not accept that it is arguable that the tribunal has misdirected itself as to the law.
38. The second aspect of this appeal concerns the rationality of the tribunal’s finding on whether there has been an “industrial accident”. In this context, it is useful to recall the words of Lord Reid in Brutus v Cozens [1972] UKHL 6. That case concerned the behaviour of an anti-apartheid protester who disrupted play on the No.2 Court during the Wimbledon tennis tournament. He had been charged with the offence of “insulting behaviour” and was acquitted by magistrates, but was convicted on an appeal by way of case stated to a Divisional Court. The Divisional Court in turn framed a question for the House of Lords as to whether the protestor’s conduct was “insulting behaviour” as a question of law. Lord Reid noted that the Divisional Court assumed that the meaning of “insulting behaviour” was a question of law. He then said:
“In my judgment that is not right. The meaning of an ordinary word of the English language is not a question of law. The proper construction of a statute is a question of law. If the context shows that a word is used in an unusual sense the Court will determine in other words what that unusual sense is. But here there is in my opinion no question of the word "insulting" being used in any unusual sense. It appears to me, for reasons which I shall give later, to be intended to have its ordinary meaning. It is for the tribunal which decides the case to consider, not as law but as fact, whether in the whole circumstances the words of the statute do or do not as a matter of ordinary usage of the English language cover or apply to the facts which have been proved. If it is alleged that the tribunal has reached a wrong decision then there can be a question of law but only of a limited character. The question would normally be whether their decision was unreasonable in the sense that no tribunal acquainted with the ordinary use of language could reasonably reach that decision.”
39. The second question therefore is not whether the tribunal was “correct” in reaching its decision, but whether its conclusion on the facts before it was irrational.
40. The applicant placed weight on the submission that he had been investigated under the NI Civil Service policy referred to as 6.03, which is a disciplinary procedure as opposed to policy 6.01, which is an investigatory procedure based on Cabinet Office guidelines. He further submits that he suffered injury as a result of discriminatory treatment, as subsequent enquiries under the Freedom of Information Act indicated that three people were interviewed under the disciplinary procedure whereas eight were interviewed in the course of the investigation.
41. Having considered the policy document in question, it does not appear to me that the applicant’s employer’s approach to the investigation revealed any untoward elements. While the Code of Conduct under 6.01 provides for a broad range of circumstances, including whistleblowing, it does not appear to give a coherent structure for investigating possible misconduct. That, it appears to me, is properly a matter for the Conduct and Discipline procedures under 6.03. If an individual is suspected of involvement in misconduct, it appears to me that the most appropriate procedures to safeguard his or her rights are those in 6.03. Otherwise an employer might be in breach of the employee’s rights.
42. It also evident that individuals apart from those attracting suspicion of possible misconduct would be interviewed in the course of an investigation of a data security leak. This would presumably include the line managers of employees suspected of possible misconduct, the authors of the leaked material and personnel responsible for database management and logging details of staff access. Without this, it would not be possible to ascertain the form of the leaked material at particular dates, which persons accessed it at particular dates and whether a particular permission or valid business reason for the access was present. I do not consider that the applicant has identified an untoward aspect in the fact that three people, including himself, were interviewed under the Conduct and Discipline procedures out of a greater number who may have been interviewed as part of the investigation.
43. The tribunal addressed itself to the four aspects of the applicant’s complaint. It set out the content of the first e-mail of 15 March 2011 in full. It found that there was nothing untoward in the content of that e-mail, and I consider that this was a reasonable conclusion for it to make. It specifically noted that while the applicant referred subsequently to the employer treating him as a “prime suspect”, the e-mail did not imply this. I consider that this was an entirely reasonable assessment on the part of the tribunal.
44. The tribunal set out the content of the e-mailed memo of 15 April 2011 in full. It found that it did not, as asserted by the applicant, threaten him with further disciplinary action. Again, I consider that this was a reasonable assessment on the part of the tribunal.
45. The tribunal noted that there was no agreed minute of the interview of 5 May 2011 available to it. However, based upon the applicant’s inaccurate reporting of the e-mails of 15 March and 15 April 2011, it considered that the applicant was not a reliable witness of what occurred at the interview. On this basis, it did not accept that anything unusual or untoward had occurred on that occasion. I consider that the tribunal was entitled to take this approach.
46. On the fourth issue of the letter of 30 June 2011, the tribunal again found nothing that would be likely to have a “huge negative psychological effect” on him as the applicant alleged. In particular, I note the sentence in that letter:
“The Department is satisfied with the explanation you gave for accessing TRIM in November 2010 and that you did not pass on any information to a journalist. As such, no action of any kind against you is deemed appropriate. The record of this investigation will not be held on your HR record”.
47. Again, I do not consider that the tribunal has made an irrational finding that the receipt of the letter of 30 June 2011 did not amount to an industrial accident.
48. I consider that the applicant has made out an arguable case and I grant leave to appeal. However, I do not accept that the tribunal has erred in law and I disallow the appeal.
(signed)
O Stockman
Commissioner
18 October 2016