Upper Tribunal Administrative Appeals Chamber

[2025] UKUT 365 (AAC)

Fecha: 01-Oct-2025

The law

The law

Legal framework relevant to IIDB

25.

Section 94 of the SSCBA 1992 sets out the right to industrial injuries benefit as follows:-

94.— Right to industrial injuries benefit.

(1)

Industrial injuries benefit shall be payable where an employed earner suffers personal injury caused by accident arising out of and in the course of his employment, being employed earner's employment.

(2)

Industrial injuries benefit consists of the following benefits—

(a)

disablement benefit payable in accordance with sections 103 to 105 below, paragraphs 2 and 3 of Schedule 7 below and Parts II and III of that Schedule;

(b)

reduced earnings allowance payable in accordance with Part IV;

(c)

retirement allowance payable in accordance with Part V; and

(d)

industrial death benefit, payable in accordance with Part VI.

(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.

(4)

Regulations may make provision as to the day which, in the case of night workers and other special cases, is to be treated for the purposes of industrial injuries benefit as the day of the accident.

(5)

Subject to sections 117, 119 and 120 below, industrial injuries benefit shall not be payable in respect of an accident happening while the earner is outside Great Britain.

(6)

In the following provisions of this Part of this Act “work” in the contexts “incapable of work” and “incapacity for work” means work which the person in question can be reasonably expected to do.

26.

In this appeal, we are concerned with IIDB which, by virtue of section 94(2)(a) is payable in accordance with (among other provisions), section 103. Section 103 provides (so far as relevant):

103.— Disablement pension.

(1)

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.

(2)

In the determination of the extent of an employed earner's disablement for the purposes of this section there may be added to the percentage of the disablement resulting from the relevant accident the assessed percentage of any present disablement of his—

(a)

which resulted from any other accident arising out of and in the course of his employment, being employed earner's employment, and

(b)

in respect of which a disablement gratuity was not paid to him after a final assessment of his disablement, (as well as any percentage which may be so added in accordance with regulations under subsection (2) of section 109 below made by virtue of subsection (4)(b) of that section [i.e. disablement from prescribed disease or injury).

(3)

Subject to subsection (4) below, where the assessment of disablement is a percentage between 20 and 100 which is not a multiple of 10, it shall be treated—

(a)

if it is a multiple of 5, as being the next higher percentage which is a multiple of 10, and

(b)

if it is not a multiple of 5, as being the nearest percentage which is a multiple of 10,

and where the assessment of disablement on a claim made on or after 1st October 1986 is less than 20 per cent., but not less than 14 per cent., it shall be treated as 20 per cent.

(4)

Where subsection (2) above applies, subsection (3) above shall have effect in relation to the aggregate percentage and not in relation to any percentage forming part of the aggregate.

(5)

In this Part of this Act “assessed” , in relation to the extent of any disablement, means assessed in accordance with Schedule 6 to this Act; and for the purposes of that Schedule there shall be taken to be no relevant loss of faculty when the extent of the resulting disablement, if so assessed, would not amount to 1 per cent.

(6)

A person shall not be entitled to a disablement pension until after the expiry of the period of 90 days (disregarding Sundays) beginning with the day of the relevant accident.

(7)

Subject to subsection (8) below, where disablement pension is payable for a period, it shall be paid at the appropriate weekly rate specified in Schedule 4, Part V, paragraph 1.

(8)

Where the period referred to in subsection (7) above is limited by reference to a definite date, the pension shall cease on the death of the beneficiary before that date.

27.

As can be seen, the extent of disablement is to be assessed in accordance with Schedule 6 and regulations made thereunder, the Social Security (General Benefit) Regulations 1982 (SI 1982/1408) (“the 1982 Regulations”). There is no need for present purposes to set out all these provisions, but it is helpful to note paragraph 1 of Schedule 6, which provides:

For the purposes of section 103 above and Part II of Schedule 7 to this Act, the extent of disablement shall be assessed, by reference to the disabilities incurred by the claimant as a result of the relevant loss of faculty, in accordance with the following general principles—

(a)

except as provided in paragraphs (b) to (d) below, the disabilities to be taken into account shall be all disabilities so incurred (whether or not involving loss of earning power or additional expense) to which the claimant may be expected, having regard to his physical and mental condition at the date of the assessment, to be subject during the period taken into account by the assessment as compared with a person of the same age and sex whose physical and mental condition is normal;

(b)

regulations may make provision as to the extent (if any) to which any disabilities are to be taken into account where they are disabilities which, though resulting from the relevant loss of faculty, also result, or without the relevant accident might have been expected to result, from a cause other than the relevant accident;

(c)

the assessment shall be made without reference to the particular circumstances of the claimant other than age, sex, and physical and mental condition;

(d)

the disabilities resulting from such loss of faculty as may be prescribed shall be taken as amounting to 100 per cent. disablement and other disabilities shall be assessed accordingly.

28.

Regulation 11 of the 1982 Regulations contains detailed provision as to how the assessment of the degree of disablement should be carried out where there has been more than one accident or another factor that has contributed to the injury. In short summary:

Where the injury is caused by more than one accident in the course of employment, the disabling effect of the accidents is aggregated and the extent of disablement assessed by reference to the accident that occurred last: see SSCBA 1992, section 103(2)(a), regulation 11(5) of the 1982 Regulations and AR v Secretary of State for Work and Pensions [2016] UKUT 111 (AAC) per UTJ Parker at [15]-[18]; and,^.

Where one of the causes of the injury is something other than the relevant accident, the extent of the disablement is in principle to be assessed ignoring the contribution of the cause that is not the relevant accident (although how this is to be done differs depending on whether the other contributing cause is congenital or otherwise something contracted or received before the relevant accident, or something that has happened subsequently: see Schedule 6 to the SSCBA 1992 and regulation 11 of the 1982 Regulations).

29.

Section 122 of the SSCBA 1992 makes provision as to the interpretation of various terms used in Part V. Definitions of “claimant” and “entitled” make it clear that, as with most other benefits, a person is not entitled to IIDB unless they have made a claim for it in the prescribed manner and within the prescribed time as required by section 1 of the Social Security Administration Act 1992 (SSAA 1992). Thus, by section 122(1):

“entitled”, in relation to any benefit, is to be construed in accordance with—
(a)
the provisions specifically relating to that benefit;
(b)
in the case of a benefit specified in section 20(1) above, section 21 above; and
(c)
sections 1 to 3 of the Administration Act and section 27 of the Social Security Act 1998;
“claimant”,
in relation to industrial injuries benefit, means a person who has claimed industrial injuries benefit;

30.

As such, the general rules applicable to other benefits claims also apply to IIDB, including section 8 of the Social Security Act 1998 (SSA 1998) which provides (at section 8(1)) that it is for the Secretary of State to decide any claim for a relevant benefit and that (by section 8(2)) where a claim for a relevant benefit is decided by the Secretary of State, the claim (a) “shall not be regarded as subsisting after that time” and the claimant (b) “shall not (without making a further claim) be entitled to the benefit on the basis of circumstances not obtaining at that time”.

31.

Section 122(1) of the SSCBA further provides that:

“relevant accident”  means the accident in respect of which industrial injuries benefit is claimed or payable;
“relevant injury”  means the injury in respect of which industrial injuries benefit is claimed or payable;
“relevant loss of faculty”  means —
(b)
in relation to industrial injuries benefit, the loss of faculty resulting from the relevant injury;

32.

The SSCBA 1992 also makes some specific provision, mainly reflecting principles established in case law under predecessor legislation, as to what constitutes an “accident” for the purposes of the statute, and as to when an accident is to be regarded as “arising out of and in the course of his employment”. Thus, in short summary, section 97 deals with accidents in the course of illegal employments; section 98 provides that the fact that at the time of the accident the earner was acting in contravention of any rules, regulations or instructions does not by itself mean the accident is not in the course of employment, provided that “the act is done for the purposes of and in connection with the employer’s trade or business”; section 99 provides that travel as a passenger by transport (other than public transport) arranged by the employer is within the course of employment; section 100 brings within scope accidents happening while meeting “an actual or supposed” emergency in or about the employer’s premises; and section 101 makes provision as to the relevance of misconduct or negligence by a third party or the claimant themselves as follows:

101.

Accident caused by another's misconduct etc.

An accident happening after 19th December 1961 shall be treated for the purposes of industrial injuries benefit, where it would not apart from this section be so treated, as arising out of an employed earner's employment if—

(a)

the accident arises in the course of the employment; and

(b)

the accident either is caused—

(i)

by another person's misconduct, skylarking or negligence, or

(ii)

by steps taken in consequence of any such misconduct, skylarking or negligence, or

(iii)

by the behaviour or presence of an animal (including a bird, fish or insect),

or is caused by or consists in the employed earner being struck by any object or by lightning; and

(c)

the employed earner did not directly or indirectly induce or contribute to the happening of the accident by his conduct outside the employment or by any act not incidental to the employment.