Chief Adjudication Officer and Another v Maguire
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ROCH,LORD JUSTICE SCHIEMANN,LORD JUSTICE SWINTON THOMAS,Lord Justice Simon Brown,Lord Justice Waller,Lord Justice Clarke |
| Judgment Date | 23 March 1999 |
| Neutral Citation | [1998] EWCA Civ J0724-9 |
| Judgment citation (vLex) | [1999] EWCA Civ J0323-3 |
| Docket Number | SSTRF 1997/1201/1,SSTRF 97/0909/1 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 March 1999 |
[1998] EWCA Civ J0724-9
Lord Justice Roch
Lord Justice Swinthon Thomas
Lord Justice Schiemann
SSTRF 97/0909/1
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE SOCIAL SECURITY COMMISSIONER
Royal Courts of Justice
Strand
London WC2A 21L
MR J MCMANUS (Instructed by R A Bamforth, Office of the Solicitor, Department of Social Security, London WC2A 21S) appeared on behalf of the Appellant.
The Respondent appeared in person.
MR R SINGH (Instructed by The Attorney General, London SW1E 6JP) appeared as an Amicus Curiae.
Friday 24 July 1998
I will ask Lord Justice Schiemann to give the first judgment.
The facts which give rise to this case are not, in substance, in dispute. They are recited in paragraph 5 of the decision of the social security commissioner from whom this is an appeal. He said:
"1. The claimant is employed by the Benefits Agency….and in July 1995 would have been working in the disablement section.
2. However, on 11 July 1995 she was off sick, suffering from ulcerative colitis [and had in fact been off sick since 24 May 1995], and was at home.
3. Her home address is…and she lives there with her husband and son. She has been there about 15 years…..
4. In about January 1993 Mr O and Miss R (cohabitee) moved in next door.
5. Initially there were no problems with the neighbours and there were never any 'neighbour' type problems eg over boundaries.
6. Mr O happened to tell [the claimant] that he worked away a lot. [The Claimant] happened to see him at [the] Benefits Agency while she was there working. She discovered he was claiming benefit and reported him. Mr O happened to see her coming out of [the] Benefits Agency premises.
7. Very soon afterwards [the claimant] started to encounter problems—receiving abuse from Mr O and threats, and for example losing tools from her shed.
8. On 11 July 1995 she was assaulted by Mr O at her home address and received injuries. She was on her property at the time, walking down her drive, when Mr O and Miss R came on to her drive uninvited. Mr O called her a DSS spy prior to and during the assault."
Those are the facts as found.
The present case is concerned with the Social Security Contributions and Benefits Act 1992 and the Social Security Administration Act 1992. Under section 44 of that latter act, there is a machinery whereunder it can be declared whether or not an accident is an industrial accident. That is preliminary machinery to being entitled to receive industrial injuries benefit.
The present case turns on section 94 of the Social Security Contributions and Benefits Act 1992. That provides in its first subsection:
"(1) Industrial injuries benefit shall be 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.
….
(3) For the purposes of industrial injuries benefit an accident arising in the course of an employed earner's employment shall be taken, in the absence of evidence to the contrary, also to have arisen out of that employment."
We are told by section 2 of that Act, what is meant by an employed earner. The subsection tells us in sub paragraph (a)
"'employed earner' means a person who is gainfully employed in Great Britain either under a contract of service, or in an office….with emoluments chargeable to income tax under Schedule E."
The applicant's claim was refused. She appealed to a Social Security Appeals Tribunal. The majority allowed her appeal. There was then an appeal by the Adjudication Officer to the Social Security Commissioner who allowed the appeal but substituted a decision to the same effect. He declared that the accident which the claimant suffered on 11 July 1995 arose out of, and in the course of, her employment being employed earners employment. It was against that finding that the Adjudication Officer appeals to this court.
He is represented by Mr Richard McManus for whose skeleton argument and oral development of it this court is much indebted. The claimant appears for herself. She was in the position of being helped, pursuant to a request made by another constitution of this court, by Mr Rabinder Singh, who has acted as amicus curiae. He has drawn the court's attention to possible arguments which could be advanced in favour of the decision of the Social Security Commissioner but which do not appear expressly in that decision, to which I shall refer. We are obliged to him for the care he took with that matter. The applicant has added, after the conclusion of Mr Singh's address, a few facts as she saw it. Strictly speaking, they may not be admissible as evidence at this stage, but I do not think any one would take that point. She has helped to fill us in as to the facts of the situation which in substance are not in dispute.
The decision of the Social Security Commissioner, after setting out the facts with which I commenced this judgment, carries on in paragraph 6:
"There is no doubt that the assault was connected with the claimant's employment because Mr O suspected the claimant of having reported him to the Benefits Agency for claiming income support whilst he was working. Apparently he was investigated by the Departmental Fraud Section. The only question in this case is whether the accident arose 'in the course of' the employment."
He then set out the decision of the tribunal from which he was hearing the appeal and continued as follows:
"I have set the majority decision aside because I do not think it correct simply to say [as they did] 'Because of her work, her home became equivalent to her place of employment at the time the assault occurred'. This lady was not like a police officer or fireman who may be on constant call even at home and therefore while at home can be regarded in the course of his employment. In my view, there are two the real reasons why she can be treated as /in the course of her employment'. The first is this. Had she not been sick on the day of the assault (a Tuesday), she would have been at work at the office. The question then arises whether though at home sick, she can be said to have been "..In the course of her [employment], being employed earner's employment'.
The Social Security Commissioner makes it clear that the words underlined are his emphasis. He continues by drawing attention to section 2(1) definition of employed earner. He then comes to the crunch of his decision which has given rise to this appeal. He says in paragraph 12:
"Bearing those definitions in mind, the position undoubtedly is that the claimant although not at the Benefits Agency Office on the day in question because she was off sick was nevertheless still serving under her contract of service."
He then refers to the case of Marshall v Alexander Sloane & Co Ltd [1981] IRLR 264, a decision of the EAT and a decision of his own. He continues:
"Consequently in the present case the claimant was in my view, still in 'employed earner's employment' when she was at home sick. She was subject to the control and direction of her employer, saving only the waiver of the need to be physically present in the Benefits Agency Office. ….she was in fact forced to be at home because of illness and was at home only with the consent and authority of her employer. Therefore she can still be regarded in my judgment as 'in the course of' her employment while on authorised sick leave. When she was assaulted, the assault having direct reference to her employment as a Benefits Agency employee, all of the elements of section 94(1) of the 1992 Act were fulfilled.
13. Lastly, I ought to refer to the second ground on which I hold her to have been in the course of her employment. At the hearing before me, she gave evidence that she had to do 'preparation work' at home and was credited by the Benefits Agency under their 'flexitime' system for the hours she spent at home doing that work. that evidence was not, I think, before the tribunal. It does, however mean that ad hoc her home could, indeed become her place of work and she came within the broad sense of 'in the course of'…."
Mr Mcmanus submitted that, for section 94 conditions to be satisfied, the claimant must fulfil all the conditions in section 94(1), in particular that it was not sufficient if the accident arose out of, but not in, the course of the employment. Nor is it sufficient if the claimant had employed earner's employment. That as a submission is, in my judgment, manifestly right. I do not think anyone has argued that it is sufficient that the claimant had employed earner's employment which the present claimant manifestly did. She fulfilled that condition and it raises no problem. Similarly, noone has disputed that what happened to the unfortunate claimant arose out of her employment. It manifestly did. The only issue as the Commissioner at the beginning of his decision correctly identified, was whether or no it happened in the course of her employment.
From reading paragraph 12 of the decision, it is clear that, so far as the first ground upon which the Commissioner decided in favour of the claimant is concerned, he was concentrating on the question whether or no she was an employed earner. That was not in dispute between the parties. It is common ground that, throughout this period she was an employed earner and remained an employed on Sundays, when nobody could expect her to work, when on she was on holiday, or, indeed, when she was off sick. Throughout that time she would remain an employed earner and the contrary has not been suggested...
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