THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

DECISION OF THE UPPER TRIBUNAL JUDGE

Before: AJ Gamble

Attendances:

For the Appellant: Mr P. Cole, Welfare Rights Officer, Inverclyde Council. The appellant was not present.

For the Respondent: Mr S. Collins, Advocate instructed by Mr N. McLeod, Solicitor, of the Office of the Solicitor to the Advocate General

The claimant’s appeal against the decision of the Greenock First-tier Tribunal of 17 March 2009 is dismissed.

REASONS FOR DECISION

1. The claimant is a 34-year old man. He has depression and a history of illicit drug use. He was awarded incapacity credits from 19 March 2008. On 21 August 2008, an IB50 form, completed by the claimant’s mother on his behalf, was returned to the Department at their request. Thereafter the claimant was medically examined for the purposes of the Personal Capability Assessment on 24 September 2008. On receipt of the report of that examination, a decision-maker, on 16 October 2008, awarded the claimant zero physical points and five medical health points under that assessment, held that he had failed that assessment and was thus no longer incapable of work, and finally, superseded his entitlement to incapacity credits from that date.

2. The claimant appealed. The decision-maker’s decision of 16 October 2008 was reconsidered on 23 November 2008 but left unaltered. The claimant’s appeal proceeded to a hearing on 17 March 2009 when the tribunal refused it. He now appeals with permission of the District Tribunal Judge but without the support of the Secretary of State for Work and Pensions.

3. The claimant’s representative requested a hearing. One was granted by the Registrar. It was scheduled for 3 September 2009 but adjourned due to the unavoidable absence of counsel for the Secretary of State because of his involvement in a minor road traffic accident that day. It was rescheduled for 23 October 2009. Representation was as narrated above. I am grateful to Mr Cole and Mr Collins for their contributions to an interesting and wide-ranging debate.

4. The claimant’s representative had submitted a written submission, documents 60-61, to the tribunal, contending inter alia that the claimant should be awarded one further mental health point for descriptor 15(g) of the Personal Capability Assessment. The statutory text of that descriptor reads as follows

“agitation confusion or forgetfulness has resulted in potentially dangerous accidents in the three months before the day in respect to which it falls to be determined whether (the claimant) is incapable of work for the purposes of entitlement to any benefit, allowance or advantage.”

It was contended by the claimant’s representative that an episode in August 2008 brought the claimant within the above descriptor. In document 61, that submission is narrated as follows.

“15(g) Has agitation, confusion or forgetfulness resulted in any potentially dangerous accidents in the last three months? Agitation lead to the “accident” of August where (the claimant) needed 38 stitches after impulsively hitting his head with a lampshade. This was not premeditated or deliberate.”

It should be recorded that immediately after striking his head with the lampshade the claimant slit his wrist with a knife.

5. At the hearing before the tribunal the position of the claimant’s representative, developing the submission narrated in paragraph four above, was that certainly the smashing of the claimant’s head with the lampshade (although not necessarily the cutting of his wrist) was an “accident” as it was not premeditated. Further, he submitted that it was caused by “agitation” which was a side effect of medication called Sertraline which the claimant had been prescribed for depression. See the record of proceedings on document 66. Documents 63 and 64, also from the record of proceedings, indicate that oral evidence was given to the tribunal by the claimant on this matter, albeit with some vacillation.

6. In their statement of reasons, the tribunal dealt with the applicability of descriptor 15(g) to the claimant as follows. On document 70, under the heading “reasons for decision”, they put matters thus

“(the claimant) described to the tribunal an incident in August 2008 where he picked up a glass bedside lamp and struck himself on the head in the belief that this would give him mental health relief. He then went on to pick up a knife and cut the outside of his arm. (the claimant) initially described this as being a spur of the moment thing and that he never had any thought of harming himself. He then later went on to describe it as not an attempt to kill himself but that it was an accident. The tribunal had the greatest of difficulty in accepting this evidence that he deliberately smashed a bedside lamp over his head and slashed himself with a knife, yet that this was done accidentally.”

Further, on document 71, under the same heading, the tribunal go on to express themselves thus

“15(g) - no points were awarded for this descriptor as (the claimant) had not suffered any serious accidents recently, was orientated in time, place and person, had normal concentration and was mentally alert. It was the unanimous opinion of the tribunal that the incident which was mentioned in August involved (the claimant) deliberately striking himself on the head with a lampshade and that this could not be considered as being accidental.”

7. It was Mr Cole’s written submission on documents 89 and 107, elaborated orally, that the tribunal erred in law in declining to accept that the lampshade episode was “an accident”. He reiterated before me the submission which he had made to the tribunal that the episode in question was the result of agitation caused by the side-effects of Sertraline. However, he did not appear to grasp that the basis of that submission was excluded by the tribunal’s findings of fact (which I consider that they effectively were) quoted from their statement of reasons in paragraph six above. These findings were made unanimously by a tribunal which included a medical member familiar with the side-effects of prescribed medications. They do not determine that the act in question was caused as Mr Cole submits that it was caused but rather that it was a deliberate one on the claimant’s part. It was on that factual basis that they went on to hold that the episode was not accidental. I can only disturb those findings if I consider that they represented an irrational approach by the tribunal or that they lacked a sound evidential basis. I hold that neither of these conditions apply. I therefore accept the tribunal’s findings of fact as appropriately made. Mr Cole was also labouring under the misapprehension that if an act is not premeditated it cannot be categorised as intentional, or to use synonyms, wilful or deliberate. It is clear from everyday experience that many acts can be so categorised even if they were not premeditated i.e. where an intention is formed instantaneously. Premeditation is not a precondition of intentionality. The tribunal nowhere held that the claimant’s smashing his head with a lampshade was premeditated. However that did not preclude them from holding that it was deliberate. I accept Mr Collin’s submission that it was irrelevant whether the claimant’s act was premeditated. The key question was whether it was deliberate. The Tribunal held that it was.

8. It is thus on the basis of the tribunal’s categorisation of the lampshade episode as deliberate that I go on to consider whether it was “an accident” for the purposes of descriptor 15(g). It was common ground between Mr Cole and Mr Collins that this issue should be considered in the light of the case law relating to the word “accident” in section 94 of the Social Security Contributions and Benefits Act 1992. Against that background, Mr Collins succinctly submitted that deliberate or wilful self-harm was not accidental harm to a claimant for the purposes of the above descriptor. I accept that submission for the following reasons. Firstly, I consider that for the purposes of section 94, the word “accident” has to be given its ordinary everyday meaning. In CAO v Faulds (a decision of the House of Lords), R(I)1/00 at p394, Lord Clyde put matters thus

“the word accident is not defined in the statute. It has no special or technical meaning but is to be understood in its ordinary sense.”

I consider that that dictum applies in the interpretation of descriptor 15(g). Applying it, I hold that the lampshade episode cannot be considered an accident in the ordinary sense of that word and indeed neither can any act of deliberate or wilful self-harm. Secondly, in CAO v Faulds, Lord Clyde, also on p394 goes on to discuss the situation where an intentional act perpetrated by a third party on a claimant can nonetheless constitute an accident on the basis that it was an unexpected event from a claimant’s point of view as the victim of that act. However, he then states on p395

“at the least, the accident cannot be something which (the victim) intended to happen. Where his injury came about through the operation of some external force, that operation must have been something which he did not intend to happen. Where his injury has followed on such action or activity of his own, then the consequences of his doing what he did cannot have been intended by him. The mischance or mishap was something which was not in any way wanted or intended. It was not meant to happen.”

Lord Clyde’s approach is fully consistent with the decision of the House of Lords in Board of Management of Trim Joint District School v Kelly [1914] AC.667 where it was held that an occurrence had to be undesigned by the injured person to constitute an accident.

The claimant’s act and its consequences cannot be brought within the dicta of Lord Clyde cited above or that decision. Rather those authorities exclude them from being considered an accident and strongly support Mr Collins’ submission. Thirdly, I reject Mr Cole’s reliance, in opposition to Mr Collins’ submission on paragraph nine of R(AF) 2/08, document 129. I did not find that argument convincing. Admittedly, in that case, Mr Commissioner Bano (as he then was) was dealing with an incident of self-harm by a claimant and he does use the word “accident” in some sentences in that paragraph to describe it. However, that did not take place in a statutory context where the word “accident’ was used in the legislation applicable to the claimant’s case. Mr Commissioner Bano was therefore not interpreting or applying such legislation. Further, as Mr Collins astutely pointed out, the Commissioner is by no means consistent in his usage in the paragraph in question. In one sentence he speaks of the claimant being “injured merely accidentally” and, in context, does so in contrast to him being injured “by an outburst of anger resulting from his psychological condition.” It is sufficient to dispose of this aspect of the case for me to hold, as I have done, that the claimant’s deliberate act of self-harm with the lampshade cannot be considered to be an “accident” for the purposes of descriptor 15(g). I should add for the avoidance of doubt that, if that is the case in regard to the lampshade episode it is also so a fortiori in regard to the slitting of the claimant’s wrist. Mr Cole, in his closing submission, suggested that that episode could also be categorised as an accident although he conceded that, even in his view, it entailed a greater degree of deliberation than the former occurrence. In my opinion, neither of these episodes were accidents.

9. Mr Cole’s alternative written submission in the event that his primary one was rejected was that the claimant’s act of smashing his head with the lampshade should entitle him to the benefit of regulation 27(b) of the Incapacity for Work (General) Regulations 1995. See documents 89 and 107-108. This was on the basis that because of his mental disablement there would be a substantial risk to the physical health of any colleagues of the claimant if he were found capable of work e.g. as a labourer in that there was a probability that the conduct in question would be repeated in the workplace. I reject that contention. In doing so, it is crucial to record that Mr Cole freely conceded in developing it orally that the episode under discussion was a “one off”. The claimant had never perpetrated an act of self-harm before or since. This was certainly the case at the date of the decision-maker’s decision. Further, it was his consistent submission that the act in question had resulted from agitation which was a side-effect of the medication prescribed for the claimant’s depression. Nonetheless, he freely conceded that the claimant had ceased taking that drug. Indeed the claimant had informed the tribunal that that was the case. On document 63 (the record of proceedings) he is recorded as stating that that had taken place in September 2008. In these circumstances, I do not see how Mr Cole’s alternative submission can succeed. I accept Mr Collins’ counter-submission that, given the above candid concessions by Mr Cole, the claimant’s case did not and never could come within regulation 27(b). Thus, he submitted, there was no obligation on the tribunal to deal specifically with the applicability of that provision. I entirely agree.

10. The claimant’s appeal is dismissed.

(Signed)

AJ GAMBLE

Judge of the Upper Tribunal

Date: 29 October 2009