Birmingham City Council, R (on the application of) v The Office of the Deputy Prime Minister

Eligibility for an injury allowance under Local Government (Discretionary Payments) Regulations 1996, regulation 35(1), depends on a causal connection between the injury and something the employee was required to do in carrying out work. The inquiry is not governed by the broader common-law concept of acting in the course of employment.

The decision-maker must identify the conduct which caused the injury and determine whether that conduct was required as part of the employment. Where the employee may have acted contrary to express or known instructions, those factual issues must be resolved before eligibility can be decided. A general finding that the employee was supervising children is insufficient if the injury was actually sustained while undertaking a separate activity.

Birmingham City Council challenged the Office of the Deputy Prime Minister’s decision allowing Mr Rogers’s appeal against the refusal of an injury allowance. Mr Rogers, an assistant learning mentor, injured himself while leaving a supervised school playground, unlocking a padlocked gate and descending steps to retrieve a football.

The Council argued that the decision-maker had failed to identify the conduct causing the injury and had failed to determine whether that conduct was required or prohibited by the terms or instructions of the employment. The central issue was the proper application of regulation 35(1) and whether the relevant factual disputes had been addressed.

1. Judicial review allowed. The decision of the Office of the Deputy Prime Minister was quashed and the matter was remitted for reconsideration.
2. Regulation 35(1) requires a causal connection between the injury and something the employee was required to do in carrying out work. The ordinary words of the regulation prevail. The court rejected the submission that the regulation should be equated with the wider common-law test of acting in the course of employment.
3. The decision-maker had asked the correct general question, namely whether the injury resulted from something Mr Rogers was required to do in carrying out his work. It had nevertheless failed to determine whether the relevant conduct was leaving the children unsupervised, retrieving the football, unlocking the padlocked gate and entering the boiler-room area.
4. The decision-maker also had to determine whether Mr Rogers was expressly prohibited, or knew that he should not, undertake those activities. The factual disputes concerning instructions, the playtime document, access to the boiler-room steps and responsibility for retrieving balls were material and required evaluation.
5. Supervision could potentially be construed broadly. However, an injury cannot result from something required in the employment if the employee was in fact doing something expressly prohibited or known to be unauthorised. Instructions may be communicated expressly, in writing or orally; not every school rule need be published.
6. Costs were ordered to be agreed, with liberty to apply in the event of disagreement.

This was a first-instance judicial review. Permission to apply was granted by Bennett J on 19 November 2004. The Administrative Court quashed the defendant’s decision and remitted the matter for reconsideration.