PLH                                                                               Commissioner's File: CI 4708/01

SOCIAL SECURITY ACTS 1992-1998
	
APPEAL FROM DECISION OF APPEAL TRIBUNAL
ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Claim for:	Disablement Benefit
Appeal Tribunal:  	Blackpool
Tribunal Case Ref:  	U/06/064/2001/00387
Tribunal date:	20 June 2001
Reasons issued:	9 August 2001

My decision is that the decision of the Blackpool appeal tribunal sitting on 20 June 2001 to determine whether the claimant had suffered an industrial accident on 4 February 2000 for the purposes of the disablement benefit claim he made on 25 May 2000 was erroneous in point of law.  I set it aside and accept the united submissions of Ms Jo Finch in her written submissions on behalf of the Secretary of State dated 27 February 2002 at pages 62-66 and Mr Joe Hall of the Transport and General Workers’ Union on behalf of the claimant dated 8 May 2002 at pages 81 and 87-88 that the right course having done so is to remit the case to a differently constituted tribunal for a fresh hearing of the accident question.
The claimant is a man now aged 61, who at the end of 1999 and start of 2000 was attempting to negotiate a satisfactory early retirement or redundancy package for himself from his employment with the British Printing Industries Federation: an institution which it is common ground had been undergoing a period of considerable change at the time, under a chief executive whose style was described in press cuttings and other material before the tribunal as confrontational and abrasive.
There is no dispute that the claimant had for some years been suffering from work-related stress giving rise to depression and anxiety, and had been on Prozac and other antidepressant medication for this for a long period of time, some two or three years.  The particular event relied on in his claim as giving rise to an industrial accident was what happened in the course of conversation between the claimant and the chief executive, lasting no longer than five minutes or so on 4 February 2000, when the claimant had hoped that terms of a severance package to his satisfaction would be agreed, but was disappointed and found the chief executive telling him in no uncertain terms that he would in any event be leaving the Federation’s employment as soon as he was 60, which would have been in some six months’ time the following August.  Following the meeting and his disappointment both at the way he was treated and at the failure to resolve his position which was obviously a matter of great importance to him, the claimant found that his depressive illness had worsened and by the beginning of the following week he was unable to cope with going back to work all.
His claim for disablement benefit was based on this illness as having been triggered by the events of the meeting on 4 February 2000 so as to amount to a personal injury suffered by accident at work on that date.  On his claim form dated 22 May 2000 at pages 1-10 of the appeal file he very frankly and fairly acknowledged the difficulty of basing a claim for benefit on an identifiable “accident” in these circumstances (stress, of course, not being a prescribed industrial disease in its own right) by saying when he was asked if anyone else at work had seen the accident that
“All staff at the office understood the stress I was under, but as it was by process there would, possibly, not be a recognised one event.”
It seems to me that the claimant thereby rightly put his finger on the crucial issue that the tribunal had to determine in his case, namely whether there could be said to have been one identifiable “event” which gave rise to his ensuing illness (which is accepted as perfectly genuine), in which case he was entitled to an accident declaration; or whether he fell into what is unhappily a large category of cases of claimants who are found to be suffering from perfectly genuine stress reactions as a result of events and treatment to which they are exposed at work over a long period of time, but under the present legislation are unable to claim disablement benefit from the industrial injuries scheme.  That is because what has happened to them is that they have finally and understandably cracked as a result of exposure to “prolonged duress”, as distinct from suffering one traumatic event which can be recognised as an “accident”.
It is the job of those who have to make these decisions on behalf of the Secretary of State and in the tribunals to place individual claimants’ cases on one side of the line or the other for benefit purposes, even though in many cases this is a hard line to have to draw and it may be very difficult for claimants to understand why a depressive or stress related condition, which so far as the sufferer is concerned is just as severe and difficult to cope with, may in some cases give rise to benefit because an “accident” can be identified, but in others give rise to no entitlement at all because it cannot.
In this case the tribunal determined, in their decision notice of 20 June 2001 and their statement of reasons sent to the parties on 9 August 2001 at pages 27 and 34 of the appeal file, that it had not been established that the “incident” on 4 February 2000 was identified as an accident.  They took account of the fact that there had been an underlying history of recurrent anxiety and depression and that at the time of the incident on 4 February 2000 the claimant had already been taking antidepressant drugs for between two and three years.  Consequently, they held that on the balance of probabilities the incident could not be accepted as an industrial accident.
In so holding the tribunal recorded that they had considered all the scheduled evidence, but did not advert specifically to an important piece of medical evidence in favour of the claimant given by the department’s own senior medical officer, in a note of advice to the person dealing with the disablement benefits claim in about July 2000, (page 20) where he said:
“In my medical opinion and on balance of probabilities -  a pathological change to the worse did take place and the accepted incident materially contributed to it.”
That however appears to have been overridden by a departmental legal adviser, whose contrary view on this predominantly medical and factual issue seems at some later stage to have been preferred by the person making the actual decision on behalf of the Secretary of State: cf. the terms of the advice dated 14 December 2000 at page 21
“....it is my opinion, notwithstanding the medical advice, [sic] that the claimant’s stress is as a result of process rather than an industrial accident”.
On the claimant’s appeal against the tribunal’s confirmation of the decision to refuse him an accident declaration, the Secretary of State fairly, and in my view rightly, concedes that the tribunal did fall into error in failing to make sufficiently clear findings on the crucial questions of fact as to the events at the meeting on 4 February 2000 and the claimant’s contention that a “triggering event” sufficient to give rise to an accident had happened in the course of that meeting. That, as Ms Finch in the written submission rightly points out, is not necessarily inconsistent with a pre-existing underlying condition as the tribunal appear to have assumed.
In my judgment, the written submission was also right in saying that it was material that the medical services doctor had identified a pathological change in the claimant’s condition to which the incident of 4 February 2000 had materially contributed; and that this was an important piece of evidence which the tribunal ought to have addressed specifically, to explain their rejection of the claim in spite of it.  As the written submission says, the first question in all such cases is whether there truly is an identifiable “incident” that can be regarded as an accident in the ordinary and everyday sense of the word, as distinct from the case of a person finding themselves finally unable to cope as the result of a long process of exposure to stress.
That, as I have said, may be a difficult and invidious line for tribunals and decisionmakers to have to draw, but that is what is required of them by the present legislation.  I direct the fresh tribunal which will now reconsider the case, and determine which side of the line this particular claimant falls, that they should have regard to the guidance given in the Commissioner’s decision in case CI 105/98, as well as the way I have tried to identify the salient question in the earlier paragraphs of this decision.  In the light of present more up-to-date knowledge about the way people can suffer breakdowns and stress reactions in response to particular events, it should no longer be taken as the law, if it ever was, that words alone can never give rise to an “accident” for this purpose.
The appeal is allowed and the case remitted for rehearing accordingly.
(Signed)
P L Howell
Commissioner
19 June 2002