DECISION OF THE SOCIAL SECURITY COMMISSIONER

Commissioner’s Case No:	CI/7507/1999

1.	I dismiss the claimant’s appeal against the decision of the social security appeal tribunal dated 22 July 1999 (relating to the claimant’s service in the Royal Air Force) as that decision is not erroneous in law.

2.	This is an appeal to the Commissioner by the claimant, a man born on 1 July 1951.  The appeal is against the unanimous decision of a social security appeal tribunal dated 22 July 1999 which dismissed the claimant’s appeal against two decisions of an adjudication officer both issued on 27 July 1998 as follows,

	“(1)	There was not an industrial accident because the claimant’s employment out of and in the course of which the accident is said to have arisen was not employed earner’s employment for industrial injuries purposes.  Accordingly disablement benefit is not payable .. Social Security Contributions and Benefits Act 1992 section 94(1) and Social Security Administration Act 1992, section 44(6)(b).

	(2)	Disablement benefit is not payable because the claimant’s employment, in respect of which the disease is claimed to be prescribed, was not employed earner’s employment for the purposes of the industrial injuries provisions of the Social Security Act 1975 .. Social Security (Industrial Injuries) (Prescribed Diseases) Regulations [1985] Regulation 2.”

3.	At the claimant’s request his appeal was the subject of two oral hearings before me.  The first took place at King’s Lynn on 12 March 2001.  At that hearing the claimant was present and addressed me.  The Secretary of State was represented by Ms D. Heywood of the Office of the Solicitor to the Departments of Health and Social Security.  The second part of the hearing took place before me in London on 11 July 2001 at which the claimant was again present and addressed me.  The Secretary of State was represented by Mr Chang of the Departmental Solicitor’s office.  I am indebted to all those persons for their assistance to me at the hearings.

4.	The facts are shortly these.  A certificate of transfer to reserve issued by the Royal Air Force on 12 January 1979 states that the claimant enlisted in the Royal Air Force on 17 February 1970 and his date of transfer to reserve was to be 16 February 1979, “on expiration of a period of regular Air Force service”.  It also stated that his rank on transfer was that of “junior technician” and that his character on transfer was “exemplary”.

5.	A letter of decision from the War Pensions Agency dated 1 June 1994 states that the claimant had been awarded a “war disablement pension” based on disablement of 70% from the accepted conditions as being attributable to service namely “psychosis and haematuria (1973/73)”.  I understand that the claimant also has as part of that pension an Unemployability Supplement.  This Pension and Supplement are still being paid.  

6.	On 15 July 1998 the claimant claimed, on the appropriate forms, Industrial Injuries disablement benefit in respect of hearing loss, allegedly attributable to aircraft noise; haematuria (a bladder condition) allegedly attributable to exposure to combusted aircraft fuels; and psychosis.  The form stated that in the claimant’s opinion the hearing loss, psychosis and haematuria started in 1972 approximately.  I should note that subsequently the claimant has stated that he does not agree with the diagnosis of “psychosis”.  I should also note that his war disablement pension does not include any element for his claimed conditions of sciatica and lumbar spondylosis.  Moreover, the decision letter of 1 June 1994 states that although the claimant’s bilateral noise induced sensorineural hearing loss (1970-79) is attributable to service (including tinnitus) no pension can be awarded for this as the total disablement for hearing loss is less than 20%.

7.	The claimant’s claim of 15 July 1998 stated the date of industrial accident as being 15 February 1979, which was in fact the date he was transferred to the reserve.  In relation to the claims for industrial accident and prescribed industrial disease the adjudication officer issued on 27 July 1998 the two decisions which are specified in paragraph 2 above.  They in effect state that disablement benefit is not payable to the claimant because his period of service in the Royal Air Force in whatever capacity, could not be regarded as employed earner’s employment for the purpose of entitlement to industrial injuries benefits.  The claimant disputes this and has made detailed written and oral observations on the relevant legislation, case law etc.

8.	Before I deal with that point, I must deal with a preliminary question as to whether the social security adjudicating authorities (including the Commissioner) have jurisdiction to deal with this type of case or whether the issues should be decided initially by a Tax Officer of the Inland Revenue by virtue of section 8 of the Social Security Contributions (Transfer of Functions, etc.) Act 1999 by which there were transferred to the Inland Revenue certain functions and jurisdictions which were formerly exercisable by the Secretary of State (and known under the original legislation as “Minister’s Questions”).  Section 8(1) of the 1999 Act reads as follows,

	“8(1)…	It shall be for an officer of the Board – 

		(a)	to decide whether for the purposes of Parts I to V of the Social Security Contributions and Benefits Act 1992 a person is or was an earner and, if so, the category of earners in which he is or was to be included, 

		(b)	to decide whether a person is or was employed in employed earner’s employment for the purposes of Part V of the Social Security Contributions and Benefits Act 1992 (Industrial Injuries).”

9.	In a written submission dated 22 May 2001, the Secretary of State’s representative says on this point,

	“… The question in this case is not whether or not the claimant was an employed earner, which would be for consideration by the Inland Revenue.  The question is whether or not the claimant should be treated as an employed earner for the purposes of the industrial injuries scheme, according to the provisions of section 115(3) of the Social Security Contributions and Benefits Act 1992.  Since the legislation at issue is social security legislation, this case should in my view, be considered by the social security authority.”

10.	Section 115(3) of the 1992 Act is set out in paragraph 11 below.  I accept the Secretary of State’s representative’s submission as correct on this point.  As will be seen below section 116 of the 1992 Act relates largely to contributions and matters concerning the Secretary of State in his executive capacity but section 115 of the 1992 Act relates to the actual entitlement to industrial injuries benefit.  A question of entitlement is of course a question for the social security adjudicating authorities, including the Commissioner.  At the hearing before me on 11 July 2001, I asked the claimant whether he wished the Commissioner or the Inland Revenue to decide this question.  He indicated that he wished a Commissioner to decide it.  The claimant was well able to understand the purport of the legal issues involved and I accept his consent and submission on this point also.

11.	I now turn to the principal issue in this appeal, namely the question of whether or not the claimant is entitled to industrial injuries benefit for accidents or prescribed diseases happening to or contracted by him during his period of service as a technician in the Royal Air Force.  The adjudication officer and the tribunal decided that he did not, by reference to sections 115 and 116 of the Social Security Contributions and Benefits Act 1992 which (as recently amended) read as follows,

	“Crown Employment – Parts I to VI

	115(1)	Subject to the provisions of this section, Parts I to V and this Part of this Act apply to persons employed by or under the Crown in like manner as if they were employed by a private person.  

	(2)	Sub-section (1) above does not apply to persons serving as members of Her Majesty’s forces in their capacity as such.  

	(3)	Employment as a member of Her Majesty’s forces and any other prescribed  employment under the Crown are not, and are not to be treated as, employed earner’s employment for any of the purposes of Part V of this Act.  

	(4)	………..

	Her Majesty’s Forces

	116(1)	Subject to section 115(2) and (3) above and to this section, a person who is serving as a member of Her Majesty’s forces shall, while he is so serving, be treated as an employed earner, in respect of his membership of those forces, for the purposes –

		(a)	of Parts I to V and this Part of this Act; and

		(b)	of any provision of the [Social Security Administration Act 1992] in its application to him as an employed earner.

	(2)	The Treasury may with the concurrence of the Secretary of State make regulations modifying Parts I to V and this Part of this Act … in such manner as the Treasury thinks proper, in their application to persons who are or have been members of Her Majesty’s forces; and regulations under this section may in particular provide, in the case of persons who are employed earners in respect of their membership of those forces, for reducing the rate of the contributions payable in respect of their employment and for determining –

	(a)	the amounts payable on account of those contributions by the Secretary of State and the time and manner of payment, and

	(b)	the deductions (if any) to be made on account of those contributions from the pay of those persons;

	(3)	For the purposes of Parts I to V and this Part of this Act, Her Majesty’s forces shall be taken to consist of such establishments and organisations as may be prescribed by regulations made by the Treasury with the concurrence of the Secretary of State, being establishments and organisations in which persons serve under the control of the Defence Council.”

12.	At the hearing before me on 11 July 2001, I indicated a preliminary view that the claimant could well be right in his submission that the appropriate legislation was that in force during the time that he was actually serving in the RAF ie. from 17 February 1970 to 16 February 1979.  That legislation would basically be the Social Security Act 1975 and the National Insurance (Industrial Injuries) Act 1965.  At the hearing, the provisions of that legislation were gone into in considerable detail but for reasons which I indicate below I am satisfied that for all relevant purposes the earlier legislation is indistinguishable from the provisions of the 1992 Act ie. sections 115 and 116.  That would not be surprising as both the 1975 Act and the 1992 Act were purely consolidating Acts ie. consolidating provisions of the earlier legislation.  I therefore confine my decision to the effect of sections 115 and 116 and at the end of this decision I will deal with the claimant’s contention that there were material differences, particularly in the 1965 Act.  Therefore without the need finally to rule on the question of which was the appropriate legislation, I propose to refer to sections 115 and 116 of the 1992 Act.

13.	On a first reading of those sections it would appear that they are in a way contradictory of one another.  The claimant emphasised that section 116(1) provides that a person who is serving as a member of Her Majesty’s forces shall while he is so serving be treated as an employed earner in respect of his membership of those forces for the purposes of (inter alia) Part V of the 1992 Act which is of course the Part dealing with industrial injuries.  It is true that section 116(1) is expressly by its wording made subject to section115(2) and (3) (para.11 above) but for all that on a first reading it would appear that the two sections, section 115 and section 116(1), contradict one another.  However, after hearing arguments at the hearings before me and considering the matter carefully, I have come to the conclusion that they are not contradictory.  It is evident particularly on tracing the history of the two sections in the earlier legislation that section 116 is dealing largely with the question of the payment of contributions – for example the definition of Her Majesty’s forces for the purposes of 116(3) is to be found in the Social Security (Contributions) Regulations 1979 S.I. 1979 No.591.  Further, I accept the submission of Mr Chang at the hearing before me on 11 July 2001 that it is evident that section 115 is designed by sub-section (1) to reverse the common law rule that persons serving the Crown in whatever capacity are not in a master and servant relationship with the Crown.  I use the term master and servant relationship because the more modern term employer/employee relationship is ambiguous and can extend to eg. independent contractors.  The reversal by sub-section 1 of section 115 is then subject to the exception in sub-sections (2) and (3) of persons serving as members of Her Majesty’s forces in their capacity as such.  They simply are not to be regarded or treated as being in employed earner’s employment in relation to their “employment”, in the much wider sense indicated above, as a member of Her Majesty’s forces.  It follows that in my judgment the claimant during his period of service in the Royal Air Force could not be regarded for benefit purposes as being employed by the Crown (section 115(2)) nor could he be treated as being in employed earner’s employment for industrial injuries purposes (section 115(3)).  It is significant that for other purposes the Social Security (Benefit) (Members of the Forces) Regulations 1975, S.I. 1975 No.493 do give some entitlement to eg. unemployment and invalidity benefit (as they were then) to serving members of Her Majesty’s forces but there is no mention in those 1975 regulations of industrial injuries benefit.

14.	The claimant’s contentions I may summarise as twofold.  First he denies that the Royal Air Force could be regarded as one of “Her Majesty’s forces” for this purpose.  Secondly he contends that he is unaffected by the ‘prohibitions’ in section 115 (and similar prohibitions in earlier legislation) because at no time was he exercising ‘hostile’ duties in the Royal Air Force.  He was merely a mechanic servicing aeroplanes etc. and there was no state of War at the time.  On the second point I accept Mr Chang’s submission that under section 115 this is irrelevant.  I hold that the reference to “persons serving as members of Her Majesty’s forces in their capacity as such” and “employment as a member of Her Majesty’s forces” in sub-sections (2) and (3) of section 115 apply to all persons serving in Her Majesty’s forces so long as they come within the definition of Her Majesty’s forces in section 116(3) and the relevant Regulations, eg. the Social Security (Contributions) Regulations 1979, S.I. 1979 No.591.  

15.	The relevant provision of those 1979 Regulations is to be found in regulation 113 of and Part I of Schedule 3.  Regulation 113 of the 1979 regulations reads as follows,

	“Establishments and Organisations of which Her Majesty’s forces are taken to consist under 113 except in relation to the employment in any of the establishments or organisations specified in Part I of Schedule 3 to these regulations of any person specified in Part II of that Schedule, Her Majesty’s forces shall, for the purposes of the Act, be taken to consist of the establishments and organisations specified in the said Part I, …”

16.	Part I of Schedule 3 refers in paragraph 1 to “Any of the regular naval, military or air forces of the Crown.”  Paragraph 12 of Part I of Schedule 3 includes the “Royal Air Force Reserve” and it is to be noted that apparently the claimant was and is still a member of that Reserve.  The claimant contended that when he was actually serving in the Royal Air Force that that was not one of the “air forces of the Crown.” (para.1).  He referred to the fact that the “Air Force” was constituted by the Air Force (Constitution) Act 1917 and the title of “Royal” added to the words “Air Force” is not to be found in the Act but was added by Royal prerogative eg. by notice in the London Gazette.  Mr Chang however referred to sections 1 and 2 of the Air Force (Constitution) Act 1917.  Section 1 begins “It shall be lawful for His Majesty to raise and maintain a force, to be called the Air Force …”  Section 2(1) provides that, “It shall be lawful for His Majesty … to make orders with respect to the government, discipline, pay, allowances, and pensions of the Air Force ..”.  Mr Chang submitted that that was enough to show that whatever the title of the Air Force, Royal or otherwise, it was to be regarded as one of the “air forces of the crown” (1979 regulations Schedule 1 Part I paragraph 1).  I agree.

17.	I now turn to the claimant’s contention that this particular case should be decided not by the provisions of the 1992 Act but by the provisions of legislation in force during the time of his service in the Air Force from 1971 to 1979 ie. the National Insurance (Industrial Injuries) Act 1965 and the Social Security Act 1975.  So far as the 1975 Act is concerned, the relevant provisions are sections 127 and 128 of that Act.  They are in all material respects the same as those of sections 115 and 116 of the 1992 Act.  I have already indicated my opinion on the construction of sections 115 and 116 of the 1992 Act.  That judgment would apply equally to sections 127 and 128 of the Social Security Act 1975.

18.	So far as the National Insurance (Industrial Injuries) Act 1965 is concerned, the relevant provisions are somewhat differently phrased but nevertheless have in my view the same effect.  Section 74 of that Act provides as follows,

	“Persons employed by or under the Crown

	This Act shall apply to person employed by or under the Crown to whom this Act would apply if the employer were a private person, subject however to such modifications as may be made therein by Order in Council for the purpose of adapting the provisions of this Act to the case of such persons:

	Provided that employment in the naval, military or air force service of the Crown and any other prescribed employment under the Crown shall be excepted employments”.  (My underlining).

19.	The expression “excepted employments” is in fact defined in section 1 of the 1965 Act as follows,

	“Persons to be insured

	(1)	Subject to provisions of this Act, all persons employed in insurable employment shall be insured in manner provided by this Act against personal injury caused after 4 July 1948 by accident arising out of and in the course of such employment.

	(2)	For the purposes of this Act, every employment specified in Part I of Schedule I to this Act is an insurable employment unless it is an excepted employment, that is to say, an employment specified in Part II of that Schedule.”

20.	Firstly I should observe that the excepted employments listed in Part II of Schedule I to the Act do not in fact refer to Her Majesty’s forces.  However, I accept Mr Chang’s submission that the list is so to speak added to by the use of the expression “excepted employments” in the proviso in section 74 of the Act.  No real problem arises about that, but the claimant drew attention to the list of insurable employments in Part I of Schedule I to the Act.  That list does not again as such refer to members of the armed forces but paragraph 11 of that Part includes as an insurable employment, “Employment in Great Britain under any public or local authority constituted in Great Britain.”  The phrase “public or local authority” is not defined in the Act or elsewhere.  The claimant contended that the Royal Air Force, or the Air Force whichever it is called, was a “public .. authority constituted in Great Britain”. He referred to the fact that the Air Force (Constitution) Act 1917 uses the word “Constitution” in its title.  However, I am satisfied that in view of the express provision of section 74 of the Act excepting “air force service of the Crown” that the Royal Air Force cannot be regarded as a “public .. authority constituted in Great Britain”.  It does not in my view make any difference to this, as the claimant contended, that apparently by a Transfer of Functions Act in 1966, responsibility for the Royal Air Force passed from the War Office to the Ministry of Defence.

21.	For all of the above reasons I must dismiss the claimant’s appeal from the decision of the tribunal in this case.  They came to the same conclusion on sections 115 and 116 of the 1992 Act and their reasons though brief are adequate.

					(Signed)	M J Goodman
							Commissioner

					(Date)		20 July 2001