PF-v-Department for Social Development (II) [2012] NICom 288
Decision No:  C3/11-12(II)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

INDUSTRIAL INJURIES DISABLEMENT BENEFIT

Appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 25 July 2011

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The Department appeals from the decision of the appeal tribunal sitting at Omagh on 25 July 2011 with the leave of the legally qualified member.

2.	The Department requests an oral hearing of the appeal.  The claimant’s representatives submit that an oral hearing is not necessary in the case.  Having regard to the narrowness of the issue in dispute in the proceedings and to the thoroughness of the written submissions, I am satisfied that the proceedings can properly be determined without a hearing.

3.	I allow the Department’s appeal.

4.	I set aside the decision of the appeal tribunal and I substitute a decision to the effect that the claimant is not entitled to industrial injuries disablement benefit (IIDB) in respect of prescribed disease A11 from and including 25 March 2009.

5.	My reasons are as set out below.

	REASONS

	Background

6.	The appeal arises from a claim for IIDB made by the claimant on 25 March 2009 on the basis of having prescribed industrial disease A11.  This disease involves symptoms of episodic blanching of fingers or a reduction in sensation and dexterity accompanied by numbness or tingling.  It is commonly referred to as “vibration white finger”.

7.	On 4 September 2009 the Department decided that the claimant was not entitled to IIDB and disallowed the claim.  The disallowance was on the basis that it had not been established that the claimant was employed in an occupation which was prescribed in relation to disease A11.  On 23 September 2009 the claimant appealed.

8.	The appeal was considered by a tribunal on 26 November 2009.  The claimant did not attend the hearing and his appeal was disallowed.

9.	The claimant appealed to the Social Security Commissioner.  The Commissioner found that the tribunal had erred in law by failing to make specific reference to paragraph (c) of Schedule 1 of Part 1 of the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations (Northern Ireland) 1986, and to make specific findings and offer reasons as to why the claimant did not fall within that paragraph of the legislation.

10.	He allowed the appeal on 9 February 2011 in decision C6/10-11(II), remitting the case to a newly constituted tribunal for redetermination.  The Commissioner directed that the new tribunal should have regard to what was said in the Court of Appeal in England and Wales in Secretary of State for Work and Pensions v Westgate [2006] EWCA Civ 725 in making a finding of fact as to whether the claimant worked in a prescribed occupation.

11.	The appeal came back to a tribunal for rehearing on 25 July 2011.  On this occasion the tribunal allowed the claimant’s appeal by a majority decision, holding that he had been employed in a prescribed occupation.

12.	Subsequently, the Department made a request for a statement of reasons for the tribunal’s decision on 27 July 2011.  A statement of reasons was issued to the parties to the appeal on 1 September 2011.

13.	On 19 September 2011 the Department applied for leave to appeal to the Social Security Commissioner from the decision of the appeal tribunal.  Leave to appeal was granted by the legally qualified member of the tribunal on 2 October 2011 on the question of whether the tribunal had erred in law in its interpretation of prescribed disease A11.  The Department appealed to the Social Security Commissioner on 2 November 2011.

	Legislation

14.	Section 108(1) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended, provides that:

‘108(1) Industrial injuries benefits shall, in respect of a person who has been in employed earner’s employment, be payable in accordance with this section and sections 109 and 110 below in respect of—

(a) any prescribed disease, or

(b) any prescribed personal injury (other than an injury caused by accident arising out of and in the course of his employment),

which is a disease or injury due to the nature of that employment and which developed after 4th July 1948.’

15.	Diseases which are prescribed and the employments in connection with which they are prescribed are set out in the Schedule 1 of Part 1 of the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations (Northern Ireland) 1986, as amended.  Regulation 2(a) of the 1986 Regulations provides that:

‘2. For the purposes of Chapter V of Part II of the Act—

(a) subject to the following provisions of this regulation and to regulation 35(3), (5) and (6), each disease or injury set out in the first column of Part I of Schedule 1 to these regulations is prescribed in relation to all persons who have been employed on or after 5th July 1948 in employed earner’s employment in any occupation set against such disease or injury in the second column of the said Part;’

16.	In Part 1 of Schedule 1 of the 1986 Regulations, Prescribed Disease A11, and the occupations for which it is prescribed is described, as follows:

Prescribed disease or injury	Occupation	

A11.(a) Intense blanching of the skin, with a sharp demarcation line between affected and non-affected skin, where the blanching is cold-induced, episodic, occurs throughout the year and affects the skin of the distal with the middle and proximal phalanges, or distal with the middle phalanx (or in the case of a thumb the distal with the proximal phalanx),
of—

(i) in the case of a person with 5 fingers (including thumb) on one hand, any 3 of those fingers, or

(ii) in the case of a person with only 4 such fingers, any 2 of those fingers, or

(iii) in the case of a person with less than 4 such fingers, any one of them or, as the case may be, the one remaining finger, where none of the person’s fingers was subject to any degree of cold-induced, episodic blanching of the skin prior to the person’s employment in an occupation described in the second column in relation to this paragraph, or

(b) significant, demonstrable reduction in both sensory perception and manipulative dexterity with continuous numbness or continuous tingling all present at the same time in the distal phalanx of any finger (including thumb) where none of the person’s fingers was subject to any degree of reduction in sensory perception, manipulative dexterity, numbness or tingling prior to the person’s employment in an occupation described in the second column in relation to this paragraph, where the symptoms in paragraph (a) or (b) were caused by vibration.	
Any occupation involving:

(a) The use of hand-held chain saws on wood; or

(b) the use of hand-held rotary tools in grinding or in the sanding or polishing of metal, or the holding of material being ground, or mental being sanded or polished, by rotary tools; or

(c) the use of hand-held percussive metal-working tools, or the holding of metal being worked upon by percussive tools, in riveting, caulking, chipping, hammering, fettling or swaging; or

(d) the use of hand-held powered percussive drills or hand-held powered percussive hammers in mining, quarrying, demolition, or on roads or footpaths, including road construction; or

(e) the holding of material being worked upon by pounding machines in shoe manufacture.	

	The facts of the case and the tribunal’s reasons

17.	The essential facts of the case regarding the claimant’s occupation are not in dispute.  It is agreed that from 2000 the claimant was employed as a forklift driver with Lagan Tiles, a company involved in the manufacture of roof tiles.  From 2001 he had a duty of cleaning a metal mixer and a metal hopper which had been encrusted with dried cement in the course of the manufacturing process.  This would take 20 minutes each day and a longer period at weekends.  He used a pneumatic kango hammer with a chisel attachment to chip cement from the mixer and hopper.

18.	In terms of the legislation, it was accepted that the claimant did not work in any of the occupation groups (a), (b), (d) or (e).  It was also accepted that he did not work at riveting, caulking, fettling or swaging within occupation group (c).  This left as the sole issue in dispute whether he was employed within occupation group (c) involving the use of hand-held percussive metal-working tools in chipping or hammering.

19.	The majority of the appeal tribunal took the view that the claimant did use a hand-held percussive tool (ie the kango) to work on the mixer and hopper, so as to clean them of cement.  They held that this brought him within occupation group (c) as using a hand-held percussive metal-working tool in chipping or hammering.

20.	The minority took the view that the kango hammer was not a metal-working tool as used by the claimant.  If he was chipping and hammering it was to remove cement from metal, but not to shape metal, which is the essence of metal-working.  For this reason the minority felt that he did not come within occupation group (c).

	Submissions

21.	Mr Hinton for the Department submits that the tribunal did not apply the correct test for prescribed disease A11 in line with paragraph (c) of Schedule 1 Part 1 of the Social Security (Prescribed Diseases) Regulations (Northern Ireland) 1986, and that the majority view contravened the guidelines laid down in reported GB Commissioner’s decision R(I)1/06 (Westgate).

22.	Mr Hinton submits that the Court of Appeal in England and Wales in Westgate defined the true meaning of a metal-working tool.  A metal-working tool is one that works metal, rather than works with metal.  Generally the working of metal will involve shaping metal.  The Department submit that the claimant’s duty was not to reshape or change the appearance in any way of the mixer or hopper, and contact with the metal was accidental to the duty he was carrying out of cleaning the mixer and hopper of cement.  Therefore the majority was wrong to hold that the kango hammer was a metal-working tool.

23.	The claimant was represented by Mr Moss of Worthingtons Solicitors.  Mr Moss submitted that the Westgate decision was not binding in Northern Ireland and could not be treated as offering definitive guidance on what is or is not a metal-working tool.  He submitted that the issue was whether the identification of the kango hammer as a metal-working tool by the majority of the tribunal fell outside the range of reasonable interpretations of that expression.  If not there can be no error of law.  He further relied on the remarks of Rix LJ in Secretary of State v Davis [2001] EWCA Civ 105 to the effect that it would be wrong to give words too narrow a definition when one considers the purpose of the statute which was to provide compensation for those who suffered a prescribed disease as a result of their occupation.  A purposive approach was required to discern what was meant by the regulations.

24.	Mr Hinton in response pointed out that there was no Northern Ireland case-law to his knowledge on the meaning of a metal-working tool.  He referred to the unreported decision of Chief Commissioner Martin in C1/03-04(HB).  He submitted that a Commissioner in Northern Ireland is obliged to take fully into account what the Commissioners and courts in Great Britain have decided in considering identically worded legislation.

	Assessment

25.	The case of Secretary of State for Work and Pensions v Westgate [2006] EWCA Civ 725 (reported as R(I)1/06) similarly concerned industrial disease A11.  The claimant in that case was employed in the bed-making industry.  His job involved fixing metal bedsprings to the wooden frame of a bed using an automatic staple gun.  It was a percussive tool used in hammering staples into the bedframe – in the sense that it drove staples over the springs, attaching them to a metal band and thence into the wooden frame.  The only question for the Court of Appeal was whether the Commissioner in that case was entitled to conclude that the tool was a metal-working tool.

26.	In Westgate, the Court of Appeal and Commissioner before them were not involved in the interpretation of a word which had been defined in the legislation.  When considering what was meant by “metal-working”, they were considering the meaning of an ordinary word of the English language.  As stated by Lord Reid in Brutus v Cozens [1973] AC 854 at page 861, the meaning of an ordinary word of the English language is not a question of law.  The question was whether in applying the ordinary meaning of the word “metal-working” to the facts to the case, the tribunal reached a conclusion which no reasonable tribunal could reach.

27.	In Westgate, Moses LJ at paragraph 5 says:

“A metal-working tool is a tool that works metal.  It is not a sufficient or correct definition to describe it as a tool for working with metal, otherwise it was hardly necessary to qualify the definition of tools in sub-paragraph (c).  It would have been sufficient to refer to the tasks of riveting or hammering, and the other tasks identified.  Most hand-held tools can be used to work with metal.  A screw-driver and a hammer are obvious examples, but they are not metal-working tools.”

28.	Applying the ordinary meaning of the word metal-working to the facts in Westgate, the Court of Appeal held that the automatic staple gun did not fall within the bounds of the meaning which the statutory expression “metal-working tool” would bear.

29.	It has not been argued, I think correctly, that as the claimant was primarily a fork-lift truck driver, he did not fall within the occupations in paragraph (c). Paragraphs (a) to (e) are headed “Any occupation involving:”, and while it was not a particularly significant part of his job, the claimant’s work nevertheless involved the activity of cleaning the mixer and the hopper with the kango hammer.  In doing so, he was involved in chipping and hammering.  The key question, if Westgate is followed, is whether the kango hammer fell within the bounds of meaning which the expression “hand-held percussive metal-working tool” could bear.

30.	For the claimant, Mr Moss submits that Westgate is a decision of the Court of Appeal in England and Wales and therefore is not binding on me and should not be followed.  Technically speaking, the decision of the Court of Appeal in England and Wales is not binding.  However, although the court in Westgate was considering different legislation (the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985), the wording of that legislation is identical to the legislation which I have to consider (the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations (Northern Ireland) 1986).

31.	It has long been considered by the Social Security Commissioners in Great Britain that there is a need for identically worded provisions in both Northern Ireland and Great Britain to be interpreted uniformly.  Thus, in R(SB)1/90, a Great Britain Tribunal of Commissioners elected to follow the decision of the Court of Appeal in Northern Ireland in Carleton v DHSS [1988] 11 NIJB 57 in preference to a conflicting decision of a GB Tribunal of Commissioners.  They held that it was incumbent on them to follow the Northern Ireland Court of Appeal in the interests of comity.  It has been similarly held in Northern Ireland, by the Tribunal of Commissioners in R1/05(IB)(T), that the passages from paragraphs 10-15 of R(SB)1/90 which set out this principle reflect the law in both Northern Ireland and Great Britain.

32.	This is not strictly speaking a case of statutory interpretation.  Nevertheless, where the Court of Appeal in England and Wales has articulated principles relating to the application of the identical legislation which I am considering in Northern Ireland, I consider that in the interests of comity I should follow their analysis.  In any event, I agree with their analysis.

33.	Mr Moss relies on the judgment of Rix LJ in Secretary of State v Davis [2001] EWCA Civ 105 to submit that it would be wrong to give the legislation too narrow a definition, when the purpose of the statutory scheme is taken into account.  Davis was also a case concerned with prescribed disease A11.  It concerned the question of whether a claimant who worked for Liverpool City Council carrying out tree maintenance across the city in parks, highways and schools, worked “in forestry” (as the legislation then required for the purpose of paragraph (a) of Part I of Schedule 1).  The Secretary of State argued that to fall within the words “in forestry” a claimant would either have to work in a forest or in the commercial production of growing timber.  Taking into account the whole of the statutory phrase “any occupation involving… the use of hand-held chain saws in forestry”, Rix LJ held that the legislators intended to exclude the use of hand-held chain saws in only an incidental way, as might occur in occupations which had nothing to do with forestry.  The dictionary definition of “forestry” included the words "management of growing timber”.  In the case, the tribunal had adopted as a working definition a dictionary definition which has been used frequently in prior cases and applied that definition to the facts of the case.  In so doing it made no error of law in deciding that the claimant was within an occupation involving the use of chain-saws in forestry.

34.	In the present case, I turn to the dictionary definition of metal-working and find the phrase “the processing of metal to change its shape, size, etc”.  When I address the meaning of the other terms in the paragraph I find that riveting, caulking, chipping, hammering, fettling or swaging are all applicable to the shaping of metal objects.  It therefore appears unavoidable that the occupation in which the use of a pneumatic tool was envisaged by those drafting paragraph (c) was one which involved the shaping of metal objects.

35.	As identified by the minority member of the tribunal, the purpose of hammering and chipping in the present case was not to change the shape of the mixer or hopper, but to remove cement from them.  The material being chipped or hammered was cement.  Any contact with the metal was coincidental or accidental and was not the claimant’s primary purpose.

36.	Moses LJ in Westgate held at paragraph 6 that the definition within sub-paragraph (c) is confined to tools which work metal.  Generally the working of metal will involve shaping metal.  Unlike the court in Davis, which was concerned with the scope of an occupation, Moses LJ emphasised that the court was concerned with the use of an identified tool.  I see nothing in that context to suggest that a broad scope should be given to the interpretation of the legislation, as suggested by Mr Moss, when it is seeking to be finely prescriptive as to particular types of tools and occupations.  Moses LJ found that Mr Westgate’s use of a staple gun in the course of his occupation did not involve using a metal-working tool.  Moses LJ noted that for example, a hammer or a screwdriver might be tools for working with metal, but that they were not metal working tools.

37.	In CI//22/91 Commissioner Johnson applied the same legislation in the case of a man who worked in the maintenance of ships and as a crane driver.  His duties included the striking of nuts with a 57lb hammer to enable ships’ propellers to be removed, and replacing steel pins in the bucket of the crane, similarly by striking them with a hammer.  He was also involved in chipping corrosion from the crane bucket with a chipping hammer.  The Commissioner considered whether the term “metal-working” had any particular significance.  The Commissioner found that the hammers used by the appellant in that case were metal-working tools as they were used for the purpose of working upon metal objects.

38.	The facts in the case considered by Commissioner Johnson are closer to those in the present case than those in Westgate.  They no more involve the shaping of metal objects than the present case.  Nevertheless they do involve direct hammering on metal for the purpose of moving or relocating parts of metal objects, whether the nuts that held the propeller in place or the pins which held the crane bucket in place.  Commissioner Johnson, in holding that tools used for the purpose of working upon metal objects in this context were metal-working tools, is not necessarily adopting an approach inconsistent with the approach of Moses LJ.

39.	Commissioner Johnson further held that the chipping hammers used by the appellant in CI/22/91 used to remove corrosion from the crane bucket were “metal-working tools”.  The removal of corrosion is an exercise not far removed from the exercise in which the present appellant was engaged.  Corrosion is an oxide of metal and, albeit derived from metal, is not a metal in itself.  It was as much a foreign object on the metal as the cement in the present case.  It is therefore more difficult to square the respective conclusions of Moses LJ and Commissioner Johnson in this context.

40.	In the present case the claimant was using a tool to chip cement from equipment used in mixing the cement used in the manufacture of tiles.  The equipment was made of metal.  Having regard to the principles adopted in Westgate, the claimant was not using the tool to shape metal.  He was not using the tool to move metal parts, such as nuts or pins, as in the case decided by Commissioner Johnson of CI/22/91.  Without commenting on the correctness of the decision of Commissioner Johnson to the effect that removing corrosion from metal amounted to metal-working, I do not accept that it could be reasonably said that, when the present claimant was chipping cement from the metal equipment, he was using a metal-working tool.

41.	While I do have some sympathy with the claimant, I conclude that the finding of the majority of the tribunal - that the claimant used a pneumatic metal-working tool in chipping or hammering - was not one which the legislation can bear.  I consider that the tribunal has erred in law and I set aside the decision of the tribunal.

42.	I consider that I should exercise the power given to me under Article 15(8)(a)(i) of the Social Security (NI) Order 1998 to make the decision which I consider the tribunal should have given.

43.	I disallow the appeal and hold that the appellant was not entitled to IIDB in respect of prescribed disease A11 from and including 25 March 2009.

(signed):  O Stockman

Commissioner

15 May 2012