Alan E. Faulkner v The Chief Adjudication Officer

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Friday, 18 March 1994

This is an appeal by Mr Alan Faulkner, a Detective Sergeant with the Staffordshire Police Force from the decision of Mr M.H. Johnson, a Social Security Commissioner given on 20th September 1990. It arises out of the appellant's claim to disablement benefit under section 50(1) and section 107(5) of the Social Security Act 1975 on the ground that, when the appellant suffered a fracture dislocation of his left ankle in the course of playing football for the Staffordshire Police Football Club on 1st April 1989, he had thus sustained "personal injury caused by accident arising out of and in the course of his employment".

The appellant claimed injury benefit on 30th June. On 3rd July 1989 the Adjudication Officer rejected the claim because, in his view, the accident did not arise out of and in the course of the appellant's employment. The appellant appealed to the Social Security Appeal Tribunal. His contentions were:

"I have been employed by the Staffordshire Police for the past 21 years and throughout that time I have represented the "force" at a number of sporting activities. I have regularly throughout the years played football for the force both "on" and "off" duty. I was representing Staffordshire Police Football Club in a Staffordshire Senior League Game when I sustained an injury to my left ankle. I was not on duty on that date but my attendance at the match was requested in the form of an "official" sports memorandum, stating that the officer's named should attend at the appointed time and date. Had the injury occurred the week before or the week after then I would actually have been playing in work time and officially on duty. It is my argument that representing Staffordshire Police Football Team is a part of my normal occupation and has clearly been accepted as such over many years. Officers are encouraged to play representative sports and I have considered it to be a part of a policeman's role in the community."

The Adjudication Officer referred to an earlier decision of the Commissioners (R(I)5/75) on similar facts in which it had been held that the injury did not arise "in the course of" the officer's employment: it made no difference whether the appellant was on duty or not, or how many times the appellant had played football. The question was whether at the time "he was doing his job". The earlier decision, to which reference was made, was the case of Ex Parte Michael in which the Divisional Court refused to quash the decision of the Commissioner and in which the Court of Appeal upheld that decision of the Divisional Court: see 1977 1 WLR 109.

The "Official Sports Memorandum" to which the appellant had referred was addressed to all stations from Chief Inspector Hunt. It listed the fixtures of the Force Football Section for the month of April. It stated where and when players should report for transport. It listed 21 players including the appellant and it concluded: "Would all Divisional Commanders please ensure that the following members of the Force Football Section are made aware of these fixtures, especially those who may be on annual leave or courses".

On appeal to the Tribunal, the appellant's case was presented by Mr Howell of the Police Federation. It was submitted that, while normally playing football would be regarded as recreational, because the appellant was a Detective Serjeant in the Staffordshire Police, there were other factors which needed to be considered. The Police Authority had a reasonable expectation that the appellant would remain fit and active for the period of his service within the police. Cases, such as that of Michael in 1975, should be viewed in the light of changes in society, in the police, and in the community's perception of the role of the police, since that date. There was reference to the riots in 1981 at Bristol, at Brixton and at Toxteth, to the Miner's strike in 1984 and to the Handsworth riots in 1985. The whole ethos of policing had, it was said, changed since those dates. There was community involvement in Staffordshire in such activities as the Staffordshire Police SPACE Scheme which involved 4 weeks in the Summer where the police look after large numbers of juveniles, the police officers both being in and out of duty. That scheme had Home Office approval. It was no longer enough to say that such things as football amounted to recreation for the police. The price to pay for that was that the police have to be protected by industrial injuries benefits.

The evidence of the appellant before the Tribunal included the following. The match in which he was injured was a Staffordshire and Senior League Fixture. The police team played every Saturday during the season. Only one team in the league was a police team. He could have played for any team but chose the police team. His reasons were that his police work included locking people up and he saw playing football for the police team as redressing the balance in some respects, giving people the opportunity to see police as normal people, breaking down barriers, actively engaging in sport. He stated that his failure to play for the team on a particular day might have adverse promotional effects.

The Appeal Tribunal allowed the appeal and notified their decision to the parties on 24th November 1989. They stated their findings of fact as follows:

" 4.A Memorandum…to all stations in Staffordshire….related to the football fixtures for thee month of April 1989…an instruction at the foot of the Memorandum stated that all Divisional Commanders should please ensure that the following members of the Force Football Section are made aware of the fixtures, especially those who may be on annual leave or courses. The appellant was listed as a player.

5.Since the mid 1980's following the large scale public disturbances in 1981, 1984 and 1985, the role of the police force has changed in as much as the requirement on police officers now is that they must be more actively involved with members of the public. They have to perform a social role. This is recognised by the Home Office and by the Chief Constables. The Chief Constable of Staffordshire regards the officers who play in the Force Football Team as performing a social role and not merely a means of obtaining a recreational benefit for the members of the team.

6.On this occasion the appellant was off duty but the Memorandum clearly required his attendance on that particular day. If the match had been on the previous week or the following week he would have been on duty and similarly would have been required to play. In recent years this activity is clearly part of the police officer's general duties."

The Chief Adjudication Officer applied for leave to appeal on 20th February 1990 and leave was granted on 9th April 1990. The grounds of appeal were that the decision was plainly wrong in law and perverse.

The appeal of the Adjudication Officer was conducted at an oral hearing on 30th August 1990 before the Commissioner. His decision was given on 25th September 1990. He stated the sole issue to be whether the accident occurred in the course of the appellant's employment: it was not in issue that it had arisen out of his employment. He set aside the decision of the appeal Tribunal for the following reasons:

1. The decision of the Court of Appeal in Nancollas v Insurance Officer (1985) 1 AER 833, which was relied upon for the appellant, is not authority for the proposition that a Tribunal's decision cannot be erroneous in law even when the record shows either inadequate evidence to support that conclusion or the evidence points in an entirely different direction from the conclusion they reached.

2. He accepted that he should be slow to interfere with the decision of the Tribunal who, as in the instant case, had apparently made sufficient findings of fact. However, this Tribunal had misdirected themselves as to the law by confusing two entirely different concepts of "duty" in relation to the appellant. Certainly he had a duty, in the sense of a moral obligation to the police force in general and his team mates in particular, to take part in football matches for which he was selected but, as Lord Denning M.R. said at page 114A in the case of Ex Parte Michael, when considering a similar set of circumstances "it was not part of his employment to play in this game of football". So the ethical duty to play football is quite a different sort of duty from that of a police officer when "on duty". There was no evidence before the tribunal that the appellant was required to play football as an incident of his contractual obligation. On the evidence as it stands, no tribunal properly instructed in the relevant law could reasonably come to the conclusion which was reached and their decision was consequently erroneous in point of law.

The appellant applied for leave to appeal in January 1991 and leave was granted by the Commissioner on 31st January 1991. It seems that the case was overlooked and Notice of Appeal to this Court was not given until 24th April 1992 pursuant...