Westgate v Secretary of State for Work and Pensions

The prescribed-disease category for an occupation involving a hand-held percussive metal-working tool covers a tool that works metal, ordinarily by shaping it. It does not cover an ordinary tool merely used in working with metal, such as driving a fixing through or into another material. The statutory reference to holding metal being worked upon confirms that distinction. The question is one of construction: whether the tool falls within the range of meanings that the statutory expression can bear. General arguments about adopting a wide or narrow interpretation, or about the purpose of the benefit, cannot extend the words. A tool used to attach metal bedsprings to a wooden frame was therefore outside the prescribed category.

The Secretary of State appealed from a decision of Social Security Commissioner Williams. The Commissioner had allowed Mr Westgate’s appeal from a tribunal decision and held that his use of an automatic staple gun, or rammer, in making beds came within Part I of Schedule 1 A 11 of the Social Security (Prescribed Diseases) Regulations 1985.

The rammer fired staples over metal bedsprings and a metal band into a wooden bed frame. The parties accepted that it was percussive and was used in hammering staples. The central issue was whether it was a metal-working tool within subparagraph (c) of the prescribed occupation.

1. Appeal allowed. The Commissioner’s decision involved an error of law in construing subparagraph (c) of Part I of Schedule 1 A 11 of the Social Security (Prescribed Diseases) Regulations 1985.
2. The expression metal-working tool means a tool that works metal. It is not enough that the tool is used for working with metal. The reference to holding metal being worked upon by percussive tools enlarges the category to cover persons holding metal on which such a tool operates; it does not broaden the meaning of the tool itself.
3. Working metal will generally involve shaping it. Bending a staple or forcing a fixing around bedsprings and a metal band, while securing them to wood, was comparable to driving a nail into a wall or a bolt through a hole. It was working with metal, not working metal.
4. The Commissioner’s reliance on caulking was misplaced. Caulking and riveting may constitute metal-working where the process seals, fashions or secures metal sheets. The relevant characteristic is the metal-working process, not merely a change in the shape of the fixing.
5. The court obtained no assistance from arguments based on the purpose of the benefit or on a supposedly wide interpretation. Secretary of State v Davis [2001] EWCA Civ 105 was confined to the statutory context there considered, where the issue concerned the occupational limitation expressed by the words “in forestry”. Here the issue concerned the separate identification of a particular tool. The rammer fell outside the statutory expression, so Mr Westgate’s occupation did not qualify.

Sir Peter Gibson agreed with Lord Justice Moses. Lord Justice Buxton agreed with both judgments. The formal order was: Application allowed.

• Court of Appeal (Civil Division) [2006] EWCA Civ 725: allowed the Secretary of State’s appeal from the decision of Social Security Commissioner Williams.
• Social Security Commissioner: allowed Mr Westgate’s appeal from a tribunal and held that his use of the rammer fell within Part I of Schedule 1 A 11 of the Social Security (Prescribed Diseases) Regulations 1985. The tribunal decision had been set aside by consent.