UK Social Security and Child Support Commissioners' Decisions

[2005] UKSSCSC CI_3600_2004 (31 January 2005)


 


1. This appeal, brought with my leave, succeeds. The decision of the tribunal on 18 8 04 was erroneous in law, as explained below, and I set it aside. I do not hold an oral hearing, as the claimant says she is too ill to attend one, and I do not in any event think it necessary. I find it expedient to make my own findings of fact and give the decision I consider appropriate. This is that there was an identifiable incident at South Wolds School on 13 10 99 which caused the claimant personal injury by accident. This is the limit of what is at issue in the present appeal before me, assessing disablement being dealt with separately.
2. The claimant, born on 24 4 50, had had a successful 16-year career as a teacher's aide for children with learning and behavioural problems. There is a letter from a former colleague at page 148, written at the time the claimant left her previous school, which speaks highly of her abilities, especially in dealing with situations where pupils might become violent. There is another enthusiastic letter at pages 146-7 from the learning support co-ordinator at the same school. It is clear that the claimant was a calm and patient, though firm, person, and popular with staff colleagues as well as children.
3. In late 1997 the claimant went to South Wolds School as a child care officer. She felt this was a new challenge, and was pleased about it. Unfortunately after a while she became very upset by, among other things, the physical treatment she saw being given to the children, particularly in the course of "restraining" them when they misbehaved. There were also some other incidents of disputes between staff, and a minor though unpleasant sexual assault on the claimant. But having read both the claimant's own manuscript accounts of what happened and the records made of interviews with her, I am satisfied that the treatment of the children was her main concern. Nonetheless, the claimant took no time off through ill-health during her two years at the school.
4. The claimant's account of events and personalities is corroborated by JB and MM, former staff members. There was apparently a child protection inquiry begun as a result of the claimant's complaints to the education department in mid-1999, and she was keeping a diary of events. The school did very badly in an OFSTED inspection in 2000 (leadership/management, behaviour and child protection procedures being among the causes of concern), which recommended special measures. The Crown Prosecution Service decided not to prosecute because of the difficulty in showing that more than reasonable force was used during restraint, but there were disciplinary proceedings against some staff members. In October 2001 the Director of Education, Leisure and Libraries was writing to Estelle Morris begging her to use her powers to close the school. It did apparently close at some point, and the premises were for sale in May 2004.
5. There were several events for which the claimant remembered the dates, but the last was on 13 10 99, when a male member of staff, IM, was restraining one of the boys, SB, with two other staff members, VH and JW, looking on. The claimant heard screaming and when she got to the room found IM holding both the child's arms high up behind his back in a hold that was not appropriate for restraint. The claimant was pleading with him to pass the child to her to deal with, but she said the more she pleaded the more IM hurt the child. He then dragged the child along the corridor and into a room. She cannot remember what happened in the room, she just has a feeling it was something very unpleasant.
6. Now this incident and the claimant's account of it have remained the same throughout the period since it happened. Her consultant psychologist calls it "the index incident", and he said he found her a reliable witness. And although she has become very upset indeed, her account of it over the years has remained very substantially the same.
7. After this incident took place, the claimant continued to work for another three weeks. She says she wanted to do what she could to protect the children, and even when she actually went sick with shingles on 4 11 99 she would have liked to continue except that a colleague was pregnant. She became deeply upset, and has not worked since, except for a short period in a care unit which she had to leave because of hysteria brought on by disturbing associations.
8. The claimant's actual condition consists of a major depressive disorder, post-traumatic stress disorder and a number of physical or somatic manifestations. She has also since had cancer. There is a full report from Dr Alladin at pages 39-55. He wholeheartedly endorses her as "a painfully honest woman of integrity", but does not hold out much hope of further working. This is a sad contrast with the woman who left her previous job with such warm praise and confident good wishes.
9. The claim we are dealing with was made on 30 6 03. It does, of course, cite 13 10 99 as the date of the accident, and gives an account of it. Two checks were made to see if there was any report of the accident. The first (page 65) said there was no record of it either at County Hall or at the school and the head teacher could not recall such an incident. The second was written by the acting headmaster (page 116) who denied that the incident had been reported to anyone at the school. The acting headmaster (presumably also the one referred to at page 65) was JM, who was one of the people the claimant had complained about in her interviews (pages 156/7). The state of record-keeping at the school attracted the comment "Despite all attempts by the LEA to train staff we do not have confidence that incidents will be correctly managed and reported". And it is clear from page 187 that the 13 10 99 incident was reported (at least) to three education department staff and one trade union representative on 19 11 99 during an interview connected with the child protection inquiry that was being carried out.
10. The decision maker decided there had been nothing that could be accepted as an industrial accident. The tribunal, which held a domiciliary hearing at the claimant's GP's recommendation, agreed. The claimant gave what appears from the record of proceedings to have been cogent evidence. The tribunal accepted that the claimant had been traumatised by various incidents she had witnessed at South Wolds, but did not accept that she had demonstrated an identifiable event on 13 10 99. Its reasons seem to have been that the claimant's memory had been affected by her experiences and that her employer had found "no evidence whatsoever" of the incident on that day. I have to say that I have not seen the evidence the tribunal apparently felt it had seen of memory loss or confusion. And the record-keeping at the school was open to severe criticism – not simply by the claimant but by official findings.
11. The tribunal went on to say that in any case what the claimant had suffered was a process by which she gradually became depressed while she worked at South Wolds School. It relied on one of the occupational health reports (pages 96-8) which suggested this and with which the claimant agreed at the hearing. If a condition is brought on as the culmination of a process, ie a gradual accumulation of, in this case, stress, then the law does not in most cases provide a remedy. It is only if an identifiable accident or series of accidents causes injury that a declaration of an industrial accident can be made.
12. The claimant does herself no favours in her grounds of appeal, because she persists in listing incidents she saw and stressing how the pressure built up over time. But she does reiterate the significance of the 13 10 99 incident. She argues that the South Wolds failures at every level to protect the children and to look after the staff are all points of law, and indeed so they may be, but they are not points of law which have anything to do with industrial injuries benefit. That benefit is paid by the taxpayer, it has nothing to do with employers.
13. The Secretary of State supports the tribunal's decision. His officer argues that the tribunal did not accept that anything happened on 13 10 99, and that is the end of it. That was a finding of fact, and I cannot, on a point of law appeal, interfere with it. The claimant in response reiterated various points already made.

My conclusions

14. It is clear to me that the incident on 13 10 99 did happen as described by the claimant. This is admittedly a finding of fact, but I feel able to reach a decision different from the tribunal's because its finding is, in the light of all the evidence, perverse. Probably the report by Dr Innes at pages 96-8 that the tribunal relied on is the only medical report that does not mention the incident in terms. So there was that identified incident, and it was capable of being an industrial accident.
15. Was it? Two arguments are raised against that. One is that the claimant did not leave until three weeks later, and then it was shingles that made her leave. It is of course much easier to adjudicate if a person becomes unwell immediately upon a stressing incident and leaves the workplace. Here, the claimant struggled on because she felt a responsibility to the children and had never had time off through ill-health. But after three weeks she came down with shingles, to which she was told that stress had probably contributed – certainly after the first two medical certificates she was continuously certificated for "stress". I am not persuaded that in the circumstances of this case the three weeks delay must be taken as showing it was not the 13 10 99 incident that caused the claimant's breakdown.
16. The second argument is the accident/process distinction. As I already explained, you can only get an industrial accident declaration if you can point to an identifiable incident, it is not enough if pressure gradually builds up until a person goes off sick. But here I do not find too much difficulty in accepting the incident on 13 10 99 as a relevant accident. Although the claimant conceded to the tribunal that she had been getting more anxious and depressed over the time she was at South Wolds, she took no time off for either of these conditions, nor indeed any others. Yet she is clearly now in a serious condition, and has not worked since November 1999 except for the brief and disastrous attempt in 2001. Maybe she overreacted in comparison with what other people might have done. But that does not matter: a person must be taken with whatever extra sensitivities, physical or mental, she has (R(I)6/91).
17. I am fortified in my finding by the Court of Session's decision in Mullen v Secretary of State for Work and Pensions (2002) SLT 149, where a care worker, who ended up with a bad back through lifting patients, was held to have suffered a series of industrial accidents, even though she was unable to identify any individual incident which was to be treated as an accident.
18. The claimant has obtained the industrial accident declaration she has been seeking. As I said in paragraph 1, I cannot assess disablement because the matter is not before me. There will have to be separate adjudication about this question. The claimant should pursue this with her local office.

(signed on original) Christine Fellner

Commissioner

31 January 2005