CO/4725/04
Neutral Citation Number: [2005] EWHC 1405 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London WC2
Friday, 17th June 2005
B E F O R E:
MR JUSTICE HENRIQUES
- - - - - - -
	THE QUEEN ON THE APPLICATION OF BIRMINGHAM CITY COUNCIL	(CLAIMANT)	
	-v-		
	THE OFFICE OF THE DEPUTY PRIME MINISTER	(DEFENDANT)	
- - - - - - -
Computer-Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - -
MR V SACHDEVA (instructed by the Legal and Democratic Services Office, Birmingham
City Council) appeared on behalf of the CLAIMANT
MR T OTTY (instructed by the Treasury Solicitor) appeared on behalf of the DEFENDANT
- - - - - - -
J U D G M E N T

1. MR. JUSTICE HENRIQUES: The claimant is the Birmingham City Council. They seek to challenge a decision by the Office of the Deputy Prime Minister to allow an appeal against the Council's decision that Mitchell Rogers was not eligible for an allowance under regulation 35(1) of the Local Government (Discretionary Payments) Regulations 1996. Leave for permission to apply for judicial review was granted by Bennett J on 19th November 2004. Regulation 35(1) reads as follows, so far as is material: 
"If – 
(a) as a result of anything he was required to do in carrying out his work a person who is employed in a relevant employment – 
(i) sustains an injury 

he shall be entitled to an allowance."

2. Mr Rogers was employed by the Council as an assistant learning mentor at Alston Primary School. On 14th February 2003, at approximately 11 am, he was the member of staff supervising the school playground during a 15-minute break at the school. There were approximately 80 children of primary school age in the playground. Some of the children under his supervision sent a football over the playground fence and asked Mr Rogers to retrieve it. In order to retrieve the football it was necessary for Mr Rogers to unlock a padlock which secured a gate which was part of a solid metal fence, roughly eight feet in length. There is a solid metal barrier across the stairwell, a section of which slopes out towards the playground, preventing any person from climbing the fence. Through the gate steps led down to a basement boiler room. Mr Rogers unlocked the padlock, went through the gate, and down the steps in order to retrieve the ball. According to the accident report, as he was going down the steps he slipped and went down on his knees to the bottom. The report details his injuries as grazed shins, back hurting, head hurting.

3. Birmingham City Council contend that in leaving the playground, unlocking the gate, going down the steps out of sight of the children, leaving them unsupervised, he did not sustain injury as a result of anything that he was required to do in carrying out his work. Indeed, he was doing something which he was specifically required not to do when the accident occurred. He left 80 primary school pupils in the playground without adult supervision for the unauthorised purpose of collecting a football and accessing an area which he had no authority to enter.

4. The Council's refusal letter of 13th March 2004 put their case in these terms: 
"Although your accident happened on the premises where you work, you were doing somebody which you were specifically required not to do, when the accident occurred. 
Firstly, you left 80 primary school pupils on a school playground without adult supervision of any kind. While it is accepted that extreme circumstances, such as a medical emergency, might justify such an action, you left the playground without permission, to collect footballs, which was neither an urgent matter, nor your responsibility. It is not accepted that there was any need for you to collect footballs, or that any need you may establish was sufficiently serious to justify leaving 80 primary school children unattended even for a very short period of time. Secondly you accessed an area which you had no authority to enter."

5. By letter dated 15th March 2004 Mr Rogers appealed to the Office of the Deputy Prime Minister. In correspondence the Council made the point that staff are not permitted to leave children unattended in the playground, even for a short time, and that staff are not permitted to retrieve balls and indeed are instructed not to do so. They must not go through the boiler house gate or down the boiler house steps. It is the responsibility of the school site manager, otherwise known as the caretaker, and not the member of staff on duty, to retrieve balls. The boiler house itself is fenced off and the gate to the steps is permanently padlocked. Whilst Mr Rogers had been supplied with a universal key, he was not told that it would unlock the padlock in question.

6. The Office of the Deputy Prime Minister's decision is dated July 1st 2004. In paragraph 7 the defendant found that there was an implied contractual requirement for Mr Rogers to perform playground supervision. Paragraph 8 of the decision reads: 
"The Secretary of State has considered the events of 14th February 2003. He notes that the council do not dispute that you fell at work, rather they maintain that the fall occurred outside of your duties, because you were not required to retrieve footballs from that part of the school premises. He notes that at the time of the fall you were supervising the school playground. The Secretary of State takes the view this was something you were required to do as a part of carrying out your work. He finds therefore that the fall was as a result of something you were required to do in carrying out your work, namely supervising the school playground. The Secretary of State upholds your appeal." 
There is no appeal against the Office of the Deputy Prime Minister's letter, and thus the appropriate means of challenge is by way of judicial review.

7. Mr Sachdeva on behalf of the Council submits that an employee is only entitled to an injury allowance if he sustained injury as a result of anything that he was required to do in carrying out his work. Regulation 35 requires the identification of anything which the employee was doing which caused the injury. It also requires that such thing must, in order for injury allowance to be payable, be something which the employee was required to do in carrying out his work. The Office of the Deputy Prime Minister appears to have identified the thing which Mr Rogers was doing as supervising the school playground. Mr Sachdeva submits that in so doing the Office of the Deputy Prime Minister has failed to ask itself the correct questions. Supervision of the school playground was not in any sense causative of Mr Rogers' accident. He did not sustain his injury as a result of supervising the playground. On the contrary, at the time of the accident he was not supervising the playground but had left the children unsupervised in the playground. Rather, he sustained his injury in consequence of his actions in accessing the boiler room steps, which was neither part of the school playground nor part of the responsibility of supervising the children.

8. Mr Sachdeva submits that the Office of the Deputy Prime Minister has failed to consider and identify Mr Rogers' actions at the time of the accident, leaving the children unsupervised, deciding to retrieve a football which had been kicked over the fence surrounding the steps down to the boiler room, unlocking the padlock with a key which, on the Council's case, he had not been instructed to use for that purpose, and accessing an area which, again, on the Council's case, he was not authorised to enter.

9. It is the claimant's case that the Office of the Deputy Prime Minister itself failed to ask whether these actions were something which Mr Rogers was required to do as part of his employment. Mr Sechdeva submits that, on the Council's evidence, these were not just things that Mr Rogers was not required to do as part of his employment, they were things that he was expressly prohibited from doing. The questions were not considered by the Office of the Deputy Prime Minister and had they been, it may well have been necessary to resolve certain factual disputes between the Council and Mr Rogers concerning what instructions he did or did not have.

10. It is manifest that there is a material conflict of evidence between Mr Rogers and the claimant Council's witnesses. In particular, Mr Rogers wrote: 
"If I had previously been told that access to the stairwell was restricted I would not have made the choice I made." 
Mr Rogers advances three contentions in support of his claim of ignorance: (1) he had been down the stairwell twice before, once with the deputy head and once on his own, to retrieve lumbar; (2) there were no signs on the gate warning of potential danger or indicating the restriction on access; (3) the padlock on the gate was of a standard issue to which every member of staff had a key.

11. The claimant's evidence is that: (1) it was known that staff were not authorised to use the universal padlock key to access the boiler room, nor to use the boiler room steps, and (2) the fact that the gate was padlocked made it obvious that the area was restricted. These issues remain unresolved by any decision of the Office of the Deputy Prime Minister. The claimant's case is that the defendant was required to ask itself: (1) what were the actions which Mr Rogers was engaged in when the accident occurred, and (2) were these actions something which he was required to do as part of his employment? If these questions are asked, it is submitted that the only reasonable and rational answer is that Mr Rogers was engaged in retrieving a football and those were not actions that he was required to do as part of his employment. Mr Sachdeva further submits that Mr Rogers was expressly prohibited from retrieving the football from the boiler room stairwell, because it meant leaving 80 primary school children unsupervised for a significant period for no overriding reason, because Mr Rogers was not authorised to access the area. Therefore he cannot have been required to perform such actions as part of his employment.

12. Mr Sachdeva placed reliance on a document headed "Play Times" which Mrs Bailey, the headmistress, says was given to Mr Rogers on his induction. Mr Rogers disputes this, saying that he never had an induction to the school. The document reads at paragraph 2: 
"No child should be in the playground without either a duty teacher or their class teacher being present." 
Paragraph 7 reads: 
"The teacher on duty should either have a drink while in the playground (sent out by a member of staff) or make arrangements with a classroom assistant to supervise her class returning into school whilst she/he makes a drink and visits the toilet etc., if required." 
The witness, Shanaz Salim, states that staff are advised that their primary responsibility is to ensure the safety of the children in the playground. This issue, as between Mr Rogers and Mrs Bailey, was not determined by the defendant.

13. In response Mr Otty submitted that there was no error of construction or interpretation of the regulation, that there was no failure to consider material facts, and that the overall approach of the defendant met the broad intention of the legislation. He submitted that there was no difference between the parties as to the construction of regulation 35 and that the regulation required three questions to be answered: (1) Has the applicant sustained injury? (2) Was that injury sustained as a result of something that the applicant was required to do in carrying out his work, and (3) has the applicant suffered a reduction in remuneration as a result? Only the second of these three questions is material to this application, and it is submitted that it falls to be considered in two stages, namely (a) what activity was the injury sustained as a result of it, and (b) was the activity something that the applicant was required to do in carrying out his work? Mr Otty points out that in the decision letter the defendant identified the question at paragraph 2: 
"The Secretary of State considers the question for decision is whether the fall you had on February 14 2003, .... was as a result of anything you were required to do in carrying out your work." 
Accordingly, he submits that the correct question must have been asked.

14. Paragraph 15 of the grounds sets out four particular matters that it is alleged the defendant failed to take into consideration, namely to identify Mr Rogers' actions at the time of the accident, firstly, by leaving the children unsupervised and deciding to retrieve a football which had been kicked over a fence surrounding the steps down to the boiler room; secondly, by unlocking the padlock which, on the Council's case, Mr Rogers had not been instructed to use for that purpose; thirdly, accessing an area, which again on the Council's case, he was not authorised to enter, and, fourthly, that he did each of these things which he was expressly prohibited from so doing.

15. Mr Otty makes five points by way of answer to those four matters. Firstly, the act of supervising children carries with it the necessity or obligation to respond to requests by them and to respond to their needs; secondly, supervision cannot be equated with maintaining continuous eye contact; thirdly, the acts of leaving the playground and accessing the steps were clearly referred to in the letter and must therefore have been taken into account; fourthly, unlocking a door with a key adds nothing and is immaterial and does not break any chain of causation and, fifthly, Mr Otty submits that there was no evidence of any express prohibition placed before the defendant.

16. Mr Otty developed each of these five points. As to supervision, he referred to Mr Rogers' job description, in which one of the duties and responsibilities was to undertake the variety of tasks which spontaneously arise while responding to the individual needs of children. In going to recover the football, it is submitted that Mr Rogers was doing just that. The request to fetch the football was not so unreasonable as to take it out of the concept of supervision. As Mr Rogers himself put it in his letter of 15th March 2004: 
"I made a choice based on the facts that I knew at the time. It was in my judgment the best option available to me." 
As to continuous observation or eye contact, Mr Otty points out that in any number of circumstances a supervising teacher will of necessity be looking elsewhere, not only in a medical emergency but also to attend to particular situations as they occur in the playground. Mr Otty expanded on his fifth point, namely that there was no evidence of express prohibition placed before the defendant. This submission appears to have overlooked Mrs Bailey's evidence that the document at page 41 of the bundle, entitled "Play Times", was, according to Mrs Bailey, placed before Mr Rogers on his induction. This contains at paragraph 2 the express prohibition that no child should be in the playground without either a duty teacher or their class teacher being present. Mr Otty points out that in Amanda Bellfield's, the Council's solicitor's letter of 6th May 2004, the statements that: 
"The photographs of the fence, the fact that the door was padlocked and the absence of authority, make it obvious that access was restricted. A sign would have been superfluous", 
and a further statement that: 
"the photographs show that once Mr Rogers had stepped through the gate, it would have been apparent to him that he was in a restricted area" 
is not evidence of any express prohibition. It is said that the statement that "all staff whom we interviewed knew that they were not permitted to retrieve balls, go through the boiler house gate, go down the boiler house steps, or leave children unattended, even for a few moments" did not aver any express instructions. It is submitted that this represented no more than a tacit understanding between staff members. It is said that the fact that the accident report form reminded staff not to go downstairs did not support the Council's case that express instructions had been given to staff members. Whilst a number of teachers made general assertions, there was no evidence of any express instruction not to leave the playground, nor to go downstairs to the boiler room. Mr Otty submitted that the defendant had not failed to take into account any material fact and had asked the appropriate questions before he reached his conclusions.

17. Both counsel accepted that there was no authority on the meaning and application of regulation 35. Mr Otty submitted that the underlying purpose of the regulation's predecessor had been described as being to bind the relevant employer to pay compensation on a no fault basis as a result of injury sustained in the course of employment, relying upon the dicta of Hart J in the Chancery Division in <U>City and County of Swansea v Johnson </U>1999 Ch. 189. Mr Otty cites various authorities thereafter on the meaning of "course of employment", namely <U>Rose v Plenty</U> [1976] 1 WLR 141 and related cases, seeking to equate the "course of employment test" with the words of the regulation. I do not accept that proposition. In his judgment Hart J, shortly before the passage cited, set out the words of the regulation in force at the time, and shortly thereafter used the words "in the course of his employment". I am satisfied that in using that expression he was doing no more than making reference to the general purpose of the regulation, without in any way seeking to define the meaning of the words of the regulation. I have been referred to the Circular issued with the 1982 regulations, which replaced the 1954 regulations. The 1954 regulations applied to an injury sustained by him in the actual discharge of his duty and specifically attributable to the nature of his duty. The 1982 regulations referred to an injury as a result of anything he was required to do in carrying out his work. The Circular pointed out that there was no mention of changing the definition to follow that of vicarious liability, and went on: 
"In future it will only be necessary to establish a causal connection between the event giving rise to the injury and a requirement imposed by the employer. This connection does not need to be direct if, for example, an employee in order to carry out a task, needs to consult someone working in another office, and sustains an injury en route to that office, he will prima facie qualify. Equally, if an employee is required to carry out a task, but is left to decide how it should be accomplished, there will be a prima facie entitlement." 
It is manifest that the intention of the regulations was to widen the field of successful employee claimants. As both counsel recognize, the plain words of the regulation must prevail.

18. I have reached the following conclusions. (1) Having cited the words of the regulation verbatim in paragraph 2 of the decision letter, I am satisfied that the Secretary of State asked the appropriate question, namely, was the injury sustained as a result of something the appellant was required to do in carrying out his work? (2) The Secretary of State, however, has failed to determine whether Mr Rogers' conduct in (a) leaving the children unsupervised; (b) retrieving a football from the boiler room area, and (c) unlocking a padlocked door and accessing the boiler room area was something which Mr Rogers was required to do as part of his employment. (3) Further, the Secretary of State has failed to determine whether Mr Rogers was expressly prohibited or knew that he was prohibited from (a) leaving the children unsupervised, (b) retrieving a ball from the boiler room area, and (c) unlocking a padlocked door and accessing the boiler room area.

19. It will be necessary, in determining these issues, for the Secretary of State to consider whether the playtime document at page 41 of the bundle was ever brought to the attention of Mr Rogers. The evidence of Mrs Bailey on the topic will require evaluation, as will that of Mr Rogers. The evidence of Sybil Stewart, in particular, that the caretaker was responsible for retrieving lost balls requires evaluation. The evidence of Simon Kinsman, in particular that the only person who goes down those steps is the caretaker, Pat Eden, likewise requires evaluation. The evidence of Zaheer Shah, in particular at paragraphs 5 and 6, requires evaluation. The evidence of Shanaz Salim requires evaluation, at paragraphs 5 to 7 in particular. The evidence of Philip Spencer Sharrack, in particular at paragraph 5, must be evaluated. The evidence of Mrs Bailey, the headmistress, and of course the evidence of Mr Rogers himself must also be evaluated. Before the question of whether the injury was sustained as a result of something the appellant was required to do in carrying out his work can properly be resolved, the factual issues must be determined. Whilst it is open to the Secretary of State to take a wider view of supervision than that contended for by the claimant, Mr Rogers cannot have sustained his injury as a result of something he was required to do in carrying out his work if in fact he was doing something that he was either expressly prohibited from doing or was doing something which he knew he should not be doing. Instructions can find their way to members of staff, either expressly by way of notice or by letter, or by way of mouth. Not all school rules are published so as to be read.

20. Accordingly, I quash the decision of the Office of the Deputy Prime Minister. I remit the matter to the Office of the Deputy Prime Minister for reconsideration.

21. MR. JUSTICE HENRIQUES: Are there any applications?

22. MR SACHDEVA: I have an application for costs. I have a schedule of costs.

23. MR. JUSTICE HENRIQUES: You have conceded in the application that remitting the matter was an appropriate course.

24. MR SACHDEVA: Yes.

25. MR. JUSTICE HENRIQUES: It was open to avoid these proceedings by the defendant agreeing to consider these factual matters. As to costs in principle, Mr Otty?

26. MR OTTY: I do not oppose costs in principle.

27. MR SACHDEVA: I have a schedule. I have added what I understand to be my fee for this hearing.

28. MR OTTY: I think that it is unlikely that there is going to be a substantial disagreement.

29. MR. JUSTICE HENRIQUES: I am in the building for the next six weeks. Shall I make an order that costs to be agreed. In the event of disagreement liberty to apply over 14 days. Costs to be agreed.

30. MR OTTY: You were kind to indicate that you would allow seven days grace for the parties to consider whether they wanted to take it further.

31. MR. JUSTICE HENRIQUES: Yes. I have not put it in as part of the judgment, but I am sure that it will be borne in mind by both parties.