UK Social Security and Child Support Commissioners' Decisions

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Cite as: [2005] UKSSCSC CI_293_2005

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[2005] UKSSCSC CI_293_2005 (14 June 2005)

This appeal, brought with leave of a district chairman, fails. The decision of the tribunal on 16 11 04 was not wrong in law. The claimant's accident which happened on 9 11 03 cannot be treated as an industrial accident so as to engage the industrial injuries benefit legislation, because he is a member of the Armed Forces.

The claimant served in the regular Army and has a war pension for ankle damage. He was given the lowest "Pulheems" fitness classification of P7L7, "home only status". He was invalided out, but because of his cooking skills and his high security clearance the Territorial Army (TA) uses him for 120-140 days a year to cook at high status functions. He is notified of where and when to go and the TA gives him the cost of his travel, usually in his own car and on his own insurance, as well as paying him for what he does.

Sadly on 9 11 03 the claimant slipped while cooking for the TA and knocked his left hip against a kitchen table. He claimed industrial injuries benefit, but was turned down. He believed this to be because he had insufficient stamps, but although that was probably the reason for his problems with incapacity benefit, it was not the reason for this claim being rejected. That reason was that section 94(1) of the Social Security Contributions and Benefits Act 1992 provides that industrial injuries benefit is

"…payable where an employed earner suffers personal injury…by accident arising out of and in the course of his employment, being employed earner's employment"

but section 115(3) of the same Act says that

"Employment as a member of Her Majesty's forces and any other prescribed employment under the Crown are not, and are not to be treated as, employed earner's employment for any of the purposes of Part V of this Act" [which is the Part referring to industrial injuries benefit],

and section 116(3) provides that for relevant purposes

"Her Majesty's forces shall be taken to consist of such establishments and organisation as may be prescribed by regulations…being establishments and organisations in which persons serve under the control of the Defence Council".

The Regulations are the Social Security (Contributions) Regulations 2001, Part I of Schedule 6 to which lists the Territorial Army as item 6. There is in regulation 2 of the Social Security (Benefit) (Members of the Forces) Regulations an exemption in relation to certain listed benefits (jobseeking and incapacity) where the period of training or instruction does not exceed 72 hours, but that does not cover industrial injuries benefit (though it does explain the reference to 72 hours in Mr Smetham's letter at page 21).

So if a person is not in, and cannot be treated as in, employed earner's employment, then he cannot receive industrial injuries benefit. His state of health and fitness for service is irrelevant, though I note that the claimant's actual Pulheems classification is "home only status" rather than unfit for all service.

Mr Kendall for the Secretary of State submits that these provisions would also govern any determination by the Inland Revenue (HM Revenue and Customs as it now is), and I agree with him. So I do not after all propose to try and direct a decision from the Revenue. I do observe, however, that some features of the TA work look more like self-employment: free-lancing and payment per event, expenses paid for use and insurance of his own car.

And I am afraid that the claimant is probably also right about a war pension for an injury at the time when his occurred. Since 6 4 05 it seems possible under the Armed Forces (Pensions and Compensation) Act 2004 to claim a pension for a service injury while still a serving member of the armed forces. But under the old regime, this was not apparently possible. I have not sought confirmation of this from the Veterans Agency, as public authorities are naturally unwilling to make rulings on hypothetical points. This is nothing to do with natural justice. The claimant may wish to try a claim as a cross-check, because as his representative says, he seems to be left between two stools, unable to get benefit from either social security or the Department of Defence.

Because of this, I had wondered whether there might be some human rights point that could be taken in his favour. Clearly there is inequality, but I cannot point to any article that would be engaged so as to enable the non-free-standing article 14 to be considered.

Mr Kendall recommended that I should set aside the tribunal's decision because it did not explain why TA membership made the claimant a member of the Armed Forces. But I should substitute my own decision to the same effect. I see no point in doing this, since the tribunal efficiently handled the limited information before it and reached the right conclusion.

(signed on original) Christine Fellner

Commissioner

14 June 2005

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