[2025] UKUT 365 (AAC)

There is no doubt that the First-tier Tribunal directed itself that the claim to IIDB could only succeed if the claimant was able to demonstrate that on the balance of probability the ten specific, documented accidents identified in his ten claim forms had been an effective cause of his loss of faculty. It says so in terms at [10] and the rest of its reasoning is wholly consistent with this self-direction.

The First-tier Tribunal did, however, accept that there were in addition “numerous other undocumented incidents over the years that [the appellant] played football”, as it put it at [3] of its decision. In that paragraph the First-tier Tribunal also refers to “the process of routine footballing activity such as repeatedly heading the ball”. At [21] the Tribunal refers again to “repeatedly heading the leather ball” as being a ”process”. At [22] the Tribunal refers to the appellant having sustained “a large number of other, undocumented injuries” in addition to the ten documented accidents, and also in addition to his repeated heading of the ball.

The Tribunal thus in its decision distinguishes between the “process” of ordinary football activity, which it regards as including repeatedly heading the ball, and the other undocumented incidents, which it does not describe as being “process”. However, neither does it describe the other undocumented incidents anywhere as “accidents”.

The thrust of the Tribunal’s decision at [21] to [24] is that it is not persuaded that the ten documented accidents were an effective cause of his loss of faculty because there were so many other undocumented injuries, as well as the process of routine heading of the ball (as well as ‘family history’) that probably contributed to the loss of faculty.

In my judgment, the First-tier Tribunal erred in law in failing to consider whether the undocumented incidents were also accidents and, if so, whether they, together with the ten documented accidents, were an effective cause of his loss of faculty.

In this respect, I accept the submission of the appellant that it does not necessarily matter whether all the accidents were identified by the claimant in the claim form or not. While the Tribunal should, when identifying the scope of the claim, always begin by construing the claim form, I accept the appellant’s submissions that the identification of the relevant accident or accidents is not a “constitutive element” or “defining parameter” of an IIDB claim in the manner of the start date for state pension age in DS. Rather, it is, in my judgment, like the request for backdating in Miah, something that may be altered after a determination on the claim has been made by the Secretary of State. It is in my judgment, as Underhill LJ put it in Miah at [50], an issue that can “be determined like any other issue going to entitlement – that is, in accordance with the ordinary procedures governing the determination of claims, including procedures relating to revision and appeal”.

I reach that conclusion for two reasons. First, because of the terms of section 122(1), which define “relevant accident” as “the accident in respect of which industrial injuries benefit is claimed or payable” (emphasis added). I acknowledge Mr Howell’s submission about the history of this legislation, and the division in decision-making authority between the insurance officer and the medical board or medical appeal tribunal. However, the passage from Hudson on which he relied is merely explaining that decision-making framework. I see no reason why the reference to “payable” in section 122(1) of the current legislation has to be read so restrictively. It seems to me that it can properly be regarded as a reference to sections such as 94(1) and 108(1) which provide that industrial injuries benefit is “payable” in the various circumstances there set out. These sections do not use the words “relevant accident” or otherwise refer to benefit being “payable” only if a claim has been made. The requirement to make a claim and prescription as to the manner and time within which a claim may be made is not to be found in the SSCBA 1992 but in section 1 of the SSAA 1992 and the Social Security (Claims and Payments) Regulations 1987 (SI 1987/1968) made thereunder (“the 1987 Regulations”).

The only reference in the provisions governing entitlement to IIDB to the need to make a claim is a rather oblique one. Although Mr Howell placed emphasis on the definitions in section 122(1) of “claimant” and “entitled” as importing the requirement for a claim to be made, in fact the word “claimant” is not used in any of the sections with which I am concerned on this appeal, and the words “entitled” and “relevant accident” are used only in section 103(1). Section 103(1) provides that:

“Subject to the provisions of this section, an employed earner shall be entitled to disablement pension if he suffers as the result of the relevant accident from loss of physical or mental faculty such that the assessed extent of the resulting disablement amounts to not less than 14 per cent. or, on a claim made before 1st October 1986, 20 per cent”.

If one reads the relevant definition of “relevant accident” from section 122(1) into that sentence, it becomes:

“Subject to the provisions of this section, an employed earner shall be entitled to disablement pension if he suffers as the result of the accident in respect of which industrial injuries benefit is claimed or payable from loss of physical or mental faculty such that the assessed extent of the resulting disablement amounts to not less than 14 per cent. or, on a claim made before 1st October 1986, 20 per cent”

Read literally, that would mean that a person could be entitled to IIDB just as a result of making a claim in respect of an accident, even if it was not “payable” in accordance with section 94(1) as a result of having occurred in the course of employment. That is clearly not what was intended. The intention of the legislation may be saved if one also construes “entitled” as required by section 122(1) as meaning “in accordance with (a) the provisions specifically relating to that benefit … and (c) sections 1 to 3 of the Administration Act …”. It could be said that thus it is provided that there is no ‘entitlement’ under section 103 unless section 94(1) is also satisfied, but it is on any view not the most elegant piece of statutory drafting. The strong impression is that whoever drafted section 103(1) had lost sight of the definitions in section 122(1).

The intention, however, is clearly that a person should be entitled to IIDB where they satisfy the terms of both section 94(1) and section 103(1) and they have made a claim as required by section 1 of the SSAA 1992. The drafting is, despite its deficiencies, sufficient in my judgment to achieve that purpose. What it does not do, though, is to prescribe in any way what the content of the claim for IIDB needs to be, or dictate that the claimant needs to identify correctly every element of the basis for entitlement in the original claim, including every accident that might be taken into account in deciding whether IIDB is in fact payable, and the claimant in fact entitled to it. There is nothing in the legislation, in other words, that supports the approach contended for by the Secretary of State in this case on the basis of DS.

On the other hand, the legislation does contain express provision that indicates to me that the approach contended for by the appellant is correct. Section 103(2) permits the percentage of disablement that “resulted from any other accident arising out of and in the course of … employment” to be added to the disablement from the “relevant accident”. Even if (contrary to my analysis above) Mr Howell is right that “relevant accident” in section 103(1) is limited to the accident in respect of which the claim is made, section 103(2) broadens the scope of accidents that may be taken into account to include other accidents arising out of and in the course of the employed earner’s employment.

It follows therefore that, upon a claimant making a claim for IIDB in accordance with section 1 of the SSAA 1992 and the 1987 Regulations, the Secretary of State is required to determine that claim and to decide whether, in accordance with the relevant provisions of Part 5 of, and Schedule 6 to, the SSCBA 1992, the claimant is entitled to IIDB as having suffered an accident or accidents in the course of employment as an employed earner that caused personal injury resulting a loss of faculty of not less than 14 per cent disablement. The Secretary of State is not limited to considering only the accident(s) mentioned in the claim form, but has to determine the claim on the basis of the evidence before him that is relevant to the circumstances obtaining at that time. The determination of the claim by the Secretary of State means, by virtue of section 8(2)(b) of the SSA 1998, that the claim ceases to exist and the claimant cannot, without making a further claim, be entitled to IIDB on the basis of circumstances not obtaining at the date of claim. However, on appeal the First-tier Tribunal stands in the shoes of the Secretary of State and needs to determine afresh whether, on the basis of the evidence before it (which might include, in the normal way, evidence and arguments that were not before the Secretary of State: see Miah at [53]) the claimant was entitled to the benefit on the circumstances obtaining at the time of the Secretary of State’s decision (section 12(8)(b) of the SSA 1998).

I am reassured as to the correctness of this interpretation by the fact that it produces a result which is consistent with the approach that has been taken in the authorities to the concept of “accident”. As it has been established that it is not necessary in order for a claim to succeed for anyone to be able to identify the date of any specific accident or accidents or, indeed, the precise number of any such accidents, it would in my judgment be surprising if a claimant was precluded on appeal from recasting their case to fit developments in their understanding of the law or the evidence as to the accident(s) that had caused their personal injury. I also note that my conclusion is consistent with Commissioner Rowland’s decision in CI/6872/95 at [17], to which the parties did not refer me.

In so concluding, I wish to make clear that I am not in this case deciding that there are not any elements of a claim to IIDB which, if changed, would count as an amendment for the purposes of regulation 5 of the 1987 Regulations and thus as something which, in the same way as the start date of the state pension claim in DS, cannot be amended after the claim has been determined by the Secretary of State. There may be. All I am deciding is that the identification of the accident or accidents is not such an element.

In this case, accordingly, the First-tier Tribunal erred in law in confining its consideration of the appellant’s claim for IIDB to the question of whether it was satisfied that the ten documented accidents had constituted an effective cause of his loss of faculty. The appellant had, possibly in his claim form, and certainly through the evidence of his wife at the hearing, raised a case that there were other incidents similar to those for which there was documentary evidence which had contributed to his injury. The Tribunal needed to consider whether or not it accepted that evidence and, if it did, whether those other incidents were also accidents and, if so, whether cumulatively they were an effective cause of his loss of faculty.

Ground 2 therefore succeeds.