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[2003] UKSSCSC CI_2668_2002 (28 January 2003)

 


Commissioner's file: CI 2668 2002

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. I allow the appeal.
2. The claimant and appellant is appealing with the permission of a Commissioner against the majority decision of the Stockport appeal tribunal on 25 March 2002 under reference U 40 125 2001 02313.
3. For the reasons below, the decision of the tribunal is erroneous in law. I set it `aside. With the agreement of the parties, I take the decision that the tribunal should have taken. This is:

The claimant's employment between 1991 and 2000 was prescribed employment for the prescribed disease A10 in respect of his claim made on 21.3. 2001, because it was employment within subparagraph (r) of the prescribed occupations for that disease.

4. I held an oral hearing of this appeal at Bury County Court on 6 January 2003. The claimant attended and was represented by Miss Jane Mulvihill of Stockport Welfare Rights. The Secretary of State was represented by Ms D Haywood of the Office of the Solicitor to the Department for Work and Pensions.
5. The appeal raises a short but difficult point of law. It is the point on which the appeal tribunal came to majority and minority decisions. The question is whether the majority of the tribunal was right in deciding that the claimant had not worked "in the water jetting industry". More technically it is whether the claimant's occupation was of a kind prescribed in paragraph (r) of the "occupation" column of prescribed disease A 10 (occupational deafness) in Schedule 1 to the Social Security (Prescribed Diseases) Regulations 1985. Paragraph (r) prescribes:

the use of, or work wholly or mainly in the immediate vicinity of, high pressure jets of water or a mixture of water and abrasive material in the water jetting industry (including work under water);

6. The problem is that the claimant's job was water jetting. But the official title of his job was Night Hygiene Operative and his employers were pork butchers and bacon curers. He did this work from 1991 to 2000. The tribunal found that he did this "using mainly high pressure jets of water". The majority, however, also found that the claimant "was a hygiene operative not an employee contracted only to operate water jets", and that "the company in which he worked was not involved in the water jetting industry". It formed the view that "the phrase "water jetting industry" clearly describes an industry using a specific process." By contrast, the minority member of the tribunal "accepted that the prolonged use of the water jets should be regarded as using jets in the water jetting industry".
7. The opinion of the majority reflected the submission made to it by the secretary of state's representative. The papers contain advice to the local officer from the adjudication and constitutional issues branch of the Department that "the claimant was not employed in the water jetting industry, he was employed as a hygiene operative in a meat factory". This was said to be based on the views of Commissioners in CI 3854 1999 and CI 11874 1996 which, the submission pointed out, bound a tribunal unless it could distinguish them.
8. The opinion of the minority reflected the argument for the claimant that these decisions could be distinguished. In addition, they should be read in the light of the decision of the Court of Appeal in Davies v Chief Adjudication Officer. In that case the Court preferred one view of Commissioners to a view of other Commissioners on the meaning of "in forestry" on the ground that it should not be read narrowly.

The arguments in the appeal

9. The claimant's arguments were put before me in a stronger form than to the tribunal. First, the tribunal had focused wrongly in so far as it considered that it was the activity of the company, not the employee, that was relevant for the purposes of prescription. The focus should be on what the claimant actually did. Second, both CI 3854 1999 and CI 11874 1996 should be distinguished as neither related to a factual situation similar to the one in this case. The claimant's job was working with water jets. That was, in essence, all he did. He was not doing it as part of any other activity or along with any other activity. Third, those decisions should in any event be read subject to the strong guidance of the Court of Appeal in Davies. Fourth, the claimant was engaged in the water jetting "industry" as that term was defined in the dictionaries. "Industry" is a form of productive activity, and that was what her client was doing. Fifth, the view of the majority was unfair. Had her client worked for an independent contractor brought in to do precisely the job he did do, then he would have been in prescribed employment. Why should her client, who was in exactly the same factual position as such a contractor, be in a different legal position because his job was described as something different and because his employer was engaged in the meat trade and not merely water jetting? She supported her arguments by illustrations from analogous situations, such as that of the catering assistant working in an office. The assistant was in the catering industry, not an office worker.
10. Miss Haywood submitted that the majority decision was right. She rightly reminded me that a Commissioner can look only at whether the majority, who had made the decision of the tribunal, had erred in law. In this case, the tribunal had rightly followed decisions of Commissioners. Those decisions put stress on the "water jetting industry" as part of the prescription of the occupation. Those words followed on from the references to using water jets, and full weight had to be given to the whole phrase "in the water jetting industry" in addition to the other parts of the prescription. She argued that I should find that the words were ordinary English words. The tribunal had considered them fully, had found facts based on evidence, and had properly explained its conclusion. The case of Davies, she submitted, was not of assistance as it applied to the term "in forestry" and not to the terms relevant in this case.

The authorities

11. Neither CI 11874 1996 nor CI 3854 1999 are, in my view, of much assistance in this case. CI 3854 1999 appears to have been an attempt to persuade a tribunal and a deputy Commissioner that the dye boiling industry is the same as the water jetting industry on the ground that steam is injected into the dye vats to make them boil. I cannot see that those facts fall within any meaning of the phrase "in the water jetting industry". That is, in my view, all the deputy Commissioner is saying in that case and, with respect, I cannot see how any other view could have been taken.
12. CI 11874 1996 is a more complex case, not least because it involves claims by a claimant to be engaged in four separate forms of prescribed occupation for prescribed disease A10 at the same time. The relevance of water jetting was, in that context, limited. The claimant was one of a team of three who spent part of one week each month making intermittent use of water jets to clear lock sluices. The case concerned an argument for the claimant that this water jetting activity could be aggregated with other activities to constitute a prescribed occupation. The Commissioner pointed out that some of the prescribed occupations for A10 were defined to allow for multi-tasking, while others were not. In the view of the Commissioner, paragraph (r) was one of those that did not allow multi-tasking to be taken into account. It was on that ground that he rested his decision. He went on to make further comments, but those were not part of his decision.
13. Secretary of State for Social Security v Davies [2001] EWCA Civ 105 was reported by Commissioners as R(I) 2/01. The Court of Appeal affirmed a decision of a Commissioner that a city council employee who used chain saws on a daily basis for cutting trees in city parks and streets was using the chain saw "in forestry" for the purposes of prescribed disease A11 (vibration white finger). The Court noted that Commissioners had disagreed on the scope of the term "forestry". The Commissioner in that case cited Lord Reid in Brutus v Cozens [1973] AC 854 on the meaning of ordinary words being a question of fact. This contrasted with the views of earlier Commissioners who had adopted strict definitions of "in forestry". Rix LJ, in the Court of Appeal, treated the definition of the term as a matter of law. In a judgment with which both Mummery LJ and Holman J agreed, he first set out his approach to the definition and then what that definition should be. His general approach was:

It seems to me that while the words "in forestry" in the statutory phase are plainly intended as some form of limitation, it would be wrong to give those words too narrow a definition when one considers the purpose of the statute, which was to provide compensation for those who suffered the prescribed disease as a result of their occupation. There is great danger that, if too narrow a definition is adopted, then the very persons who fall within the purpose of the statutory protection would fall outside the definition...

He then went on to adopt a definition of "in forestry" which both fitted the dictionary definitions and the purpose of the statute.

14. In a short judgment agreeing with this Mummery LJ expressly quoted and agreed with the following passage from the decision of Commissioner Levenson in the decision under appeal:

The Industrial Injuries Disablement Benefits Scheme was designed to compensate workers for industrial injuries and for contracting prescribed diseases, and the definitions of prescribed occupations should not be artificially narrowed. I do not see why a person doing essentially the same job in a city as is being done by a person in a forest should be denied that compensation.

15. I take from the judgments of Rix LJ and Mummery LJ two principles with which to approach this case. The terms in which prescribed occupations are defined are in principle matters of law. But they should be interpreted in a way that takes into account the purposes of that part of the Social Security Contributions and Benefits Act 1992 that established the disablement benefit scheme, and not in a narrow or technical way. The Court of Appeal has clearly applied that approach to the whole of the industrial injuries scheme, and Davies cannot be confined simply to issues about the meaning of "in forestry".

The focus of the test

16. Before turning to the definition of the key terms, I must deal with the subject to which those terms are to be applied. It is the activity of the employee that is the focus of application of the term, not the generic description of the employer's activity or activities. The tribunal should not have focused on the activity or activities of the employer in a general sense. In so far as the majority found against the claimant because his employers were pork butchers, I agree that it erred in law.
17. The list of activities of which paragraph (r) forms part are "occupations" prescribed for regulation 2 of the Regulations of which that Schedule forms part (the Social Security (Industrial Injuries)(Prescribed Diseases) Regulations 1985). As regulation 2 makes clear, the concern is whether a claimant is a "person who has been employed ... in employed earner's employment in any occupation..." in the list. This list is based on the powers in section 108 of the Social Security Contributions and Benefits Act 1992 to cover risks of the occupations of employed earners "and not as a risk common to all persons". The focus throughout is on what the employee is doing, or where he is doing it, not what the employer is doing.
18. The tribunal must also focus on what the claimant does, not what his job is labelled. The fact that this claimant is called a hygiene operative is not decisive of what he does. Rix LJ commented in Davies (at paragraph 18) about "the danger of using labels". The majority of the tribunal in this case was, to use the phrase of Rix LJ, led into that danger. The focus must be on the terms of the claimant's job contract and/or what he was told to do, and equipped to do, by his employers. This claimant was a "hygiene operative", but he was also a water jet operative. The one does not exclude the other. In so far as the tribunal relied on this point it also erred in law.
19. The question is therefore whether the claimant was wholly or mainly engaged in an activity that fell within paragraph (r). It has not been disputed that he was using water jets for all or most of his time (by which I understand that he was actively manipulating water jets). And it is not disputed that those jets were high pressure jets of water. But was he engaged "in the water jetting industry"?

"in the water jetting industry"

20. I agree with Ms Haywood that the inclusion of these words must be given some weight in the overall interpretation of paragraph (r). But, as I stated at the hearing, I am troubled by the weight they should be given. I was asked to approach the interpretation as an application of ordinary English terms, but Davies directs me to treat the matter as one of law. Either way, until I considered this case I had never heard of a "water jetting industry", and I can find no mention of one in any other relevant legislation. Looking at the context of the wording, the occupations prescribed for prescribed disease A10 refer to several industries. But those are, at least in my own obviously limited experience, common terms. The other industries or specific activities referred to for prescribed disease A10 are: the metal working industry (paragraph (a)), textile manufacturing (paragraph (e)), forestry (paragraph (i)), the metal founding or forging industries (paragraph (k)), the manufacture of steel (paragraph (l)), the concrete products industry (paragraph (q). In each case the use of the term "industry" is appended to something being produced. I have trouble in understanding how "water jetting" and "industry" are placed together. Water jetting is not a product in its own right as, for example, are worked or founded metal or concrete products. It is a means of performing a large number of activities such as descaling metal, cleaning old stonework or sluice gates, cutting meat or tree roots or, as in this case, cleaning premises used for food production. According to the New Oxford English Dictionary, "industry" means "economic activity concerned with the process of raw materials and manufacture of goods in factories", or, as a noun, "a particular form or branch of economic activity". The Chambers Dictionary refers to "any branch of manufacture or trade". But it is obvious that paragraph (r) is not describing the manufacture of water jets.
21. My conclusion is that neither the obvious contextual meaning of "water jetting industry" in the regulations, nor the narrower dictionary definitions of the individual terms capture the intended meaning. Nor is my ignorance assisted by the fact that even the Industrial Injuries Advisory Council and the Department refer to the "water-jetting industry" while the legislation actually refers to the "water jetting industry".

The views of the Industrial Injuries Advisory Committee

22. At the hearing, I invited any broader guidance from the parties, for example by reference to the advice given on prescription. Neither party could help me on this, but I indicated that I would myself check for any guidance. Since the hearing I have found that there is guidance from the Industrial Injuries Advisory Committee (IIAC) in a recent report. The IIAC published a report on Occupational Deafness as Cm 5672 in November 2002. The report is, if I may say so, a most valuable general review of the terms in which prescribed disease A10. Chapter 4 deals specifically with occupational coverage.
23. The report deals directly both with water jetting and work in forestry. On the issue of forestry, the IIAC noted the Court of Appeal decision. Its conclusion, on the scientific evidence, is that the prescription should simply state "regular use of chainsaws", and omit any reference to forestry.
24. On water jetting, the IIAC reports:

97 The current prescription refers to the "water-jetting industry" and it has become apparent that this phrase has caused some difficulties for decision-makers. Water-jetting can be carried out in a variety of ways and contexts and at very different pressures some of which would certainly pose a noise hazard but others would not. There is a need to clarify that the Council intended to include only those water-jetting processes using high pressure on a commercial basis and where an employee would be put at regular and frequent risk of exposure to high levels of noise likely to damage hearing.

98 Evidence was taken from HSE experts on the level of pressure that would be likely to be hazardous to hearing and produce disablement. We understand that such pressures are likely to be substantially and regularly reached in processes routinely performed by specialist operators. Accordingly, we recommend that water-jetting operations undertaken at pressures above 10,000 psi should be prescribed within the benefit scheme, and that the current reference to "industry" should be omitted from the prescription.

I must, however, note that the recommended terms of prescription in Appendix 4 to the report do not follow this recommendation. But it is clear that the IIAC is concerned that the current application of the reference to the water jetting industry is causing problems that the IIAC did not intend. Its own understanding is that the reference is, or should be, to water jetting processes.

The meaning of sub-paragraph (r)

25. I must now apply the concerns of the IIAC to the wording of sub-paragraph (r) in the context of the principles set out in Davies. I conclude that references to "the water jetting industry" are references to economic activities and processes involving the continuing or at least regular use of high pressure water jets. In other words, the phrase "in the water jetting industry" indicates that it is not enough that high pressure water jets be used as a part of a business activity. Water jetting must be the sole or main process used in the relevant employment, and the use of water jets must be continuing or at least regular through a working day.

My decision

26. I conclude that the tribunal erred in law in interpreting sub-paragraph (r) too narrowly, in focusing on the label by which the employee's job was described rather than the substance of his job, and in focusing on the main activities of the employer rather than the employment of the claimant.
27. The parties agreed that I should take the decision that the tribunal should have taken if I decided that the tribunal was wrong in law. I have no problem in doing that on these facts. The substance of the claimant's job was using high pressure water jets to clean his employers' premises. He did that on a continuing basis, using a high pressure water jet throughout each working day. On the undisputed facts, the claimant's employment as night hygiene operative for his employers, the butchers, from 1991 to 2000 is clearly within the terms of sub-paragraph (r) for the purposes of prescribed disease A10.

David Williams

Commissioner

28 January 2003

[Signed on the original on the date shown]