Chief Adjudication Officer v. Rhodes CI 14111 1996
| Jurisdiction | UK Non-devolved |
| Judge | N/A |
| Judgment Date | 24 July 1998 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Subject Matter | Industrial accidents |
| Docket Number | CI 14111 1996 |
| Appellant | Chief Adjudication Officer v. Rhodes |
R(I) 1/99
(Chief Adjudication Officer v. Rhodes)
CA (Roch, Swinton Thomas and Schiemann LJJ) CI/14111/1996
24.7.98
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Industrial accident - assault on Benefits Agency employee while at home on sick leave - whether accident arose in the course of employment
The claimant, who was employed by the Benefits Agency, suffered personal injury as a result of an assault which occurred whilst she was on sick leave. The perpetrator of the assault was a neighbour whom the claimant had reported for claiming benefit while working, and who had attacked the claimant in the claimant’s own front drive. The adjudication officer refused an industrial accident declaration but the claimant successfully appealed to a tribunal. The adjudication officer appealed to the Commissioner who dismissed the appeal, holding that the claimant’s injuries were caused by an accident “arising out of and in the course of” her employment for the purposes of entitlement to industrial injuries benefit under section 94(1) of the Social Security Contributions and Benefits Act 1992. The Chief Adjudication Officer appealed to the Court of Appeal
Held, allowing the appeal (Swinton Thomas, LJ dissenting), that
- the accident clearly arose “out of” the claimant’s employment but the claimant had also to show that the accident arose “in the course of” her employment
- to determine that question one had to ask firstly what the claimant’s contractual duties were and secondly whether what the claimant was doing at the time the accident occurred constituted the discharge of a duty, or something reasonably incidental there to: Faulkner v. Chief Adjudication Officer (reported as R(I) 8/94); Smith v. Stages [1989] 1 AC 928;
- whilst an employee on sick leave who was carrying out contractual duties could be acting in the course of her employment, the claimant was not doing any work requested of her by her employers at the time of, or on the day of, the accident and was therefore not eligible for industrial injuries benefit.
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DECISION OF THE COURT OF APPEAL
Mr. J. R. McManus (Instructed by R.A. Bamforth, Office of the Solicitor, Department of Social Security, London WC2A 2LS) 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.
LORD JUSTICE ROCH:
I will ask Lord Justice Schiemann to give the first judgment.
LORD JUSTICE SCHIEMANN:
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 e.g. 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.
- 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.’ (my underlining).”
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.”
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