UK Social Security and Child Support Commissioners' Decisions

[2006] UKSSCSC CI_3696_2005 (18 May 2006)

CI/3696/2005

Decision

1. Leave to appeal having been granted by the chairman of the tribunal on 3^rd October 2005, this appeal by the claimant does not succeed. I confirm the decision of the Fox Court (London) tribunal of 23^rd May 2004 made under reference U/04/035/2005/00171 to the effect that the claimant has not established that there was an industrial accident in relation to his claim for industrial injuries disablement benefit made on or about 1^st October 2004.

Background and Procedure

2. I held an oral hearing of this appeal on 19^th April 2006. The claimant attended in person together with his wife but was not represented The Secretary of State was represented by Ms Harris from the office of the Solicitor to the Department for Work and Pensions. I am grateful to all of them for their assistance.
3. The claimant was born on 20^th November 1939. He was employed by the Ministry of Defence ("MoD") as a project manager from 6^th November 1995 to 19^th November 1999, when he retired. On 2^nd November 1998 he was called in to see his line manager, who suspended him from duty, on full pay, because it was alleged that the claimant had made a number of false declarations on expenses claim forms. He was told that the matter would be investigated by the MoD police and the Ministry. He was handed written confirmation of this (reproduced on pages 8A and 8B of the file). I observe that paragraph 4 of the written confirmation suggested that the claimant might wish to contact the Welfare Officer, whose name and address were given. Further details of the allegations appear in the document reproduced on pages 4D to 4F.
4. The claimant states that he was taken completely by surprise by both the allegations and suspension, he had no advance idea of why he was being called in to see his line manager, and was in a state of shock. There had been nobody else in the room, which he said was improper because there should have been a meeting involving the personnel manager, his trade union representative and his immediate manager (although as I understand it he is not suggesting that there was any improper behaviour by his line manager other than this omission and the fact of the suspension). The claimant felt humiliated at having to leave the building through the back door, hand in his pass and so on. He was frightened at the idea of police involvement and he could not even bring himself at that stage to tell his wife or his GP what had happened. As he later expressed it (pages 4N to 4O),

"During my 4 months of my suspension period I was confined myself as a recluse in my own home with a constant far of humiliations day and night that the MoD police would come to my house to arrest and handcuff me in front of my family, neighbours and friends … Throughout the whole episode my employer wrecked my life both physically and mentally through conspiracy, collaboration, fabrication … I am suffering with severe stress related illness which exacerbated my asthma …".

5. He went on to give further details of his prolonged bad health. At the hearing he told me that (over 7 years later) he still has nightmares about the experience, which changed his whole life and turned him into "a human cabbage". In a written submission the claimant's wife pointed out that "He is a very proud man as he comes from a high caste Hindu Brahmin family".
6. There is much medical and similar evidence on the file to support the claimant's account of his psychological condition, although according to a report of 27^th May 1999 from his GP his very real physical difficulties were reasonably well controlled (pages 31 to 33). Since the tribunal hearing there has been evidence of further physical problems.
7. On 25^th February 1999 formal notice of disciplinary charges was issued to the claimant, although it was confirmed that there would be no criminal proceedings (page 26). The disciplinary hearing took place on 19^th May 1999 and on 6^th August 1999 the claimant was informed by post that " you have been found guilty as charged" and that the penalty was a reprimand and an order for restitution (page 34). If I understand correctly, by this stage it was not suggested that there was any fraudulent intent on the part of the claimant, and perhaps not even any financial advantage, but that he had been negligent and in breach of his duty in the way in which he had completed the claim forms. In any case, on 15^th April 2000 the claimant's disciplinary appeal was successful and the findings and penalty were set aside. Since then he appears to have invested considerable energy in seeking compensation and investigations into what he considers was unfair and conspiratorial treatment of him.
8. These latter efforts having proved unsuccessful, on 1^st October 2004 the claimant made a claim for industrial injuries disablement benefit on the basis that he had suffered a nervous breakdown because of the allegations made against him. On 30^th November 2004 the Secretary of State decided that there was no entitlement because there was no event identifiable as an accident. On 5^th December 2004 the claimant appealed to the tribunal against that decision of the Secretary of State. The tribunal considered the matter on 23^rd May 2005, the claimant and his wife attending, and confirmed the decision of the Secretary of State. On 3^rd October 2005 the District Chairman of the tribunal granted the claimant's application for leave to appeal against the decision of the tribunal and on 5^th December 2005 I directed that there be an oral hearing of the appeal. A hearing fixed for 3^rd February 2006 was postponed at the request of the claimant.

The Relevant Law

9. Section 94(1) of Social Security Contributions and Benefits Act 1992 provides that (subject to other conditions of entitlement) benefit shall be payable:

94(1) … where an employed earner suffers personal injury caused … by accident arising out of and in the course of his employment …

The issue in the present case is whether what happened to the claimant can be said to have been personal injury caused by accident.

10. Ms Harris drew my attention to a number of previous decisions by Commissioners concerning the meaning of this provision but I have found them to be of limited assistance. Many might appear to be making general statements of law but are in reality concerned with the particular facts of the case being decided, and the whole discussion has to be reconsidered in view of the relatively recent decision by the House of Lords on 11^th May 2000 in Chief Adjudication Officer v Faulds [2000] 2 All ER 961 (also reported with R(I) 1/00), especially the speech of Lord Clyde, with which three others of their Lordships explicitly agreed.
11. I summarise what I understand to be the position as set out by Lord Clyde:

(a) "By accident" does not mean "accidentally". There must be "an" accident (or accidents).

(b) Performing work which on account of "some disease or weakness or other predisposition" is excessive for the individual undertaking it may constitute an accident in his case.

(c) Any accident must be specific and ascertainable (even if the precise date cannot be specified).

(d) Injury caused by a continuous process where there is no specific ascertainable accident does not come within the conditions of entitlement.

(e) The word "accident is to be understood in its ordinary sense and nothing is to be gained by "resorting to dictionary definitions".

(f) While consideration of what was or was not to be expected, or what was or was not foreseeable may be some of some guidance, "neither expectation nor foreseeability [nor the circumstances that the incident was exceptional] can provide an acid test of an accident"

(g) In the normal course of a person's work it is not generally intended that they should sustain injury. In the case of physical injuries the incident that brought them about will normally qualify as an accident.

(h) "Unquestionably" shock or stress disorder can qualify for benefit but it is still necessary to able to identify the accident(s) and "the identification of the accident and the establishment of the causal connection between the incident and the injury may well call for a very careful investigation of the circumstances of the case and the nature of the condition".

(i) The mere fact of suffering stress or developing some illness or disorder from being engaged in a stressful occupation will not bring the sufferer within the conditions of entitlement for benefit. Injury and accident in this context cannot merge indistinguishably.

The Tribunal Decision

12. The tribunal focussed on whether the claimant's condition was a result of a "process" and took account of his previous psychological problems. I am not sure that it was correct to approach the case in this way. However, it also made the key finding:

"That neither being suspend nor receiving the letter of suspension can be regarded can be regarded as an accident in the ordinary sense of the word".

Conclusion

13. I see nothing wrong with the finding of the tribunal as embodied in the words that I have quoted, and accordingly no error of law in the decision. I accept that the claimant was very shocked by what happened, and it is also likely that he was predisposed to have a grossly disproportionate response. However, the situation is not within paragraph 11(b) above and the issue of law is whether the tribunal was entitled to regard as what had happened as not amounting to an accident. Ultimately this is a question of fact for the tribunal, but I cannot imagine that on the facts of the present case any reasonable tribunal would have reached any other decisions.
14. For the above reasons, this appeal by the claimant fails.

H. Levenson

Commissioner

18^th May 2006