[2025] UKUT 365 (AAC)

The parties are in agreement that the First-tier Tribunal in its decision 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. The parties are in agreement that the Tribunal erred in law by regarding the claim as so limited or, at least, by proceeding on the assumption that the claim was so limited without giving reasons for doing so.

The appellant for his part submits that the Tribunal should also have considered the other undocumented incidents, which he submits were included in the claim forms because the documented accident in each case was said to be “one of a number of similar ‘accidents’ sustained throughout my career”. The appellant submits that the Tribunal needed to consider whether all of the documented and undocumented accidents were cumulatively an effective cause of his loss of faculty. The appellant submits that the Tribunal was bound to do so because the appellant in the claim forms expressly referred to them, and also because the appellant’s wife’s evidence at the hearing, which was accepted by the Tribunal, was that “there were likely to have been many more undocumented injuries” in addition to the ten documented accidents.

The Secretary of State’s position is more qualified. The Secretary of State takes issue with ground 2 and characterises the First-tier Tribunal’s decision in relation to the undocumented incidents as being a conclusion that they were in law “process” rather than accidents. The Secretary of State further submits that the Tribunal’s approach to the undocumented incidents may have been correct in substance, but accepts that the Tribunal’s reasons are inadequate and the First-tier Tribunal has as a result materially erred in law.

The Secretary of State argues that, in view of “the relevant accident” being defined in section 122(1) as “the accident in respect of which industrial injuries benefit is claimed or payable”, it was necessary for the First-tier Tribunal to identify the accident, or series of accidents, in respect of which industrial injuries benefit was claimed. The Secretary of State submits that the reference in this definition to “or payable” is because in previous versions of the legislation it was for the insurance officer to determine if a personal injury had been caused by an accident, at which point benefit became in principle payable, but the extent of the disablement was to be determined by a medical board or medical appeal tribunal: see R v Nat. Insr. Comr, Ex p. Hudson [1972] AC 944 at 970G-971B. The Secretary of State submits that it is not therefore sufficient that there is an accident in the course of employment that has caused injury, the claimant must actually have made a claim in respect of that accident.

The Secretary of State submits that the First-tier Tribunal’s task was therefore to decide in respect of which accidents the claim had been made. The Secretary of State submits that this required the First-tier Tribunal to construe the claim forms. The Tribunal had to decide whether the reference to other “similar ‘accidents’” in each claim form was, at the time the claim was made, properly to be construed as referring to the other nine documented accidents in respect of which a claim was being made at the same time on the nine other claim forms, or whether it was to be construed as referring to other undocumented incidents. The Secretary of State notes that, by section 12(8)(a) of the SSA 1998, the First-tier Tribunal was not obliged to consider any issue not raised by the appeal, but submits that the Tribunal was obliged, if necessary, to consider this issue of its own motion in the exercise of its inquisitorial function once the appellant’s wife had given evidence at the hearing about other incidents.

The Secretary of State further submits, however, that if, on a proper construction of the claim forms, the accidents in respect of which the claims were made did not include other undocumented incidents, then it would not be open to the Tribunal now to consider them. The Secretary of State so submits on the basis of section 8(2) of the SSA 1998 which provides that once the claim for the relevant benefit is decided by the Secretary of State, the claim “shall not be regarded as subsisting after that time” and the claimant “shall not (without making a further claim) be entitled to the benefit on the basis of circumstances not obtaining at that time”. The Secretary of State relies on Judge Wright’s decision in Secretary of State for Work and Pensions v DS [2025] UKUT 168 (AAC) and submits that the identification of the relevant accident for the purposes of an IIDB claim is a constitutive element of such a claim in the same way as the selection of start date was a constitutive element of the claim to pension considered by Judge Wright in DS.

The appellant in reply to the Secretary of State’s latter argument submits that identification of the relevant accident is not a constitutive element of a claim to IIDB. The appellant relies on the Court of Appeal’s decision in Miah v Secretary of State for Work and Pensions [2024] EWCA Civ 186, [2024] 1 WLR 3012 that it was open to the First-tier Tribunal to consider whether a claim to benefit should be back-dated, even where the claim had not included a request for backdating (there being no opportunity in the application process at issue in that case to do so) and the Secretary of State had not considered it at the time of determining the claim. The appellant points out that identification of “the relevant accident” cannot be a constitutive element of the claim for IIDB because section 103(2) enables the Secretary of State and, in turn, the Tribunal to add 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…” (emphasis added).