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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> La Rocca, R (on the application of) v Social Security Commissioner & Anor [2002] EWHC 2021 (Admin) (11 October 2002)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2002/2021.html
Cite as: [2002] EWHC 2021 (Admin)
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QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL | ||
B e f o r e :
____________________
| THE QUEEN On the Application of MARIO LA ROCCA | Applicant | |
- and - | ||
| (1) THE SOCIAL SECURITY COMMISSIONER (2) THE SECRETARY OF STATE FOR WORK AND PENSIONS | Respondents |
____________________
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr David Forsdick (instructed by the Solicitor to the Department of Social Security, New Court, 48 Carey Street, London WC2A 2LS) for the First Defendant
The Second Defendant did not attend and was not represented
____________________
AS APPROVED BY THE COURT
Crown Copyright ©
- This is an application by the Claimant Mr La Rocca (“the Claimant”) for permission to apply for judicial review of the decision of the First Defendant the Social Security Commissioner (“the Commissioner”) to refuse permission to extend time to appeal from a decision of the Blackpool Appeal Tribunal (“the Tribunal”). He refused to do so on the ground that the appeal had no prospect of success. The proceedings before the Commissioner related to a certificate of recoverable benefits dated the 19th April 1999 (“the Certificate”) stating that benefits paid to the Claimant by reason of industrial disease totalling £32,717.97 are payable to the Compensation recovery Unit (“the CRU”), out of the award to the Claimant against his employer of damages of £121,000. It is common ground that under the provisions of the Social Security Act 1989 (“the 1989 Act”) and most particularly section 22(8), the sum so stated must be paid to the CRU in repayment of relevant benefits paid to the Claimant unless the first claim by the Claimant to those benefits was made before the 1st January 1989. The issue before me is whether the Commissioner ought to have given permission because (contrary to his view) there was an arguable issue whether there had been such a claim prior to that date.
- The Claimant in the course of his employment between 1978 and 1986 was exposed to dust which resulted in his contracting bronchial pneumonia (“the Disease”). He suffered from the Disease from at least 1986. Prior to the 1st January 1989, he disclosed symptoms associated with the Disease and was diagnosed as suffering from it. By 1989 he was so seriously incapacitated that he was more or less unable to work and his employer terminated his employment on grounds of this incapacity in June 1991
- It is clear from the evidence that he was awarded benefits after the 1st April 1989. The first recorded payment made was made on the 17th April 1989. At a later date the Claimant was awarded benefits for the period commencing in 1986. The critical issue is whether he made any claim to benefit prior to the 1st January 1989.
- On the 27th July 1992 the Claimant issued a writ against his employers for damages for negligence and breach of statutory duty in respect of the Disease and the consequent disability. Subsequently a settlement was reached providing for payment to him of £121,000 but this was not paid until the 15th April 1999. The date of the settlement (and in particular whether it was reached before or after the 6th October 1997) was not in issue before the Tribunal or the Commissioner. On this application Counsel for the Commissioner has now, following instructions from his instructing solicitor, for the first time raised this issue. The date is critical to the question whether the rights of the CRU to claw back benefits is governed by the 1989 Act or the Social Security (Recovery of Benefits Act 1997 (“the 1997 Act”). The 1997 Act applies in case the settlement was reached after the 6th October 1997 (the date that the 1997 Act came into force) and if the 1997 Act applies there can be no doubt that the Certificate is valid. Since this issue was not raised or considered at any stage prior to this application, both parties have sensibly agreed that this application should proceed on the same basis that the matter proceeded before the Tribunal and Commissioner, namely that the 1989 Act and not the 1997 Act applies.
- On the 19th April 1999 the Certificate was sent to the Claimant informing him that he had to repay out of the damages agreed to be paid to him the benefits received which amounted to £32,717.97. The Claimant challenged the Certificate appealing to the Tribunal which on the 5th October 2000 upheld the Certificate. The Tribunal gave permission to appeal. The Claimant did not appeal within the four week time limit. He was five days out of time. The Claimant thereupon applied to the Commissioner to extend time for appealing. The Commissioner refused to do so on the 2nd August 2001 and again (on a review of his earlier decision) on the 31st October 2001 on the ground that the appeal was hopeless because, whilst the Claimant’s disease existed and was diagnosed before the 1st January 1989, there was no claim for benefits before that date.
- The Claimant thereupon applied for permission to commence judicial review proceedings challenging the Commissioner’s decision. On the 15th May 2002 Scott Baker J refused permission on paper. The renewed application came before me on the 27th July 2002 when it was adjourned until today.
- On this application the Claimant was represented by a friend Mr Sinclair. The Commissioner was represented by Mr David Forsdick of counsel. Initially I was faced with a multitude of issues and a substantial quantity of material, but with the assistance of both advocates I was enabled to focus on the only relevant issue and have attention to the relevant material. I am very grateful.
- Section 22(8) and Schedule 4 of the 1989 Act established a recovery of benefits scheme under which (subject to certain irrelevant exceptions) the CRU is entitled to recover any compensation payment made after the coming into force of that section to the extent that it is made in respect of a disease if the victim’s first claim for a relevant benefit in consequence of the disease is made on or after the 1st January 1989.
- The sole issue before me is whether the Commissioner was entitled to reach the conclusion that the Claimant made no such claim. It is plain to me that on the material before him the Commissioner was so entitled and indeed could not have rationally reached any other conclusion. For the Claimant never suggested that he had made any such claim and there was no evidence supporting any such suggestion. Mr Sinclair submitted that the Claimant had made that contention in his “Reasons for Appealing” submitted to the Commissioner. For he there stated: “The DHSS also paid me disability benefits from January 1987”. This statement referred not to payments made in 1987, but to the backdating of payments to 1987.
- The Claimant’s argument before the Commissioner was that it was sufficient that he had had the Disease prior to the 1st January 1989 and that benefits were backdated to 1986. The Commissioner correctly held that exemption from the statutory scheme required the making of a claim to a benefit before that date: nothing less was sufficient.
- Before me Mr Sinclair sought to argue in the alternative that there might well have been a claim. In this regard he referred to the record of claims made by the Claimant kept by the Benefits Agency (“the Agency”). The first page shows miscellaneous irrelevant claims made between the 13th May 1969 and the 3rd January 1983. The third page shows relevant claims made between the 17th April 1989 up to date. Page 2 is missing. Mr Sinclair submits that the missing page may well support the existence of relevant claims prior to the 1st January 1989 and that, since the Agency is responsible for the loss of the critical page, the presumption should be made that it would support the Claimant’s case. This argument was never addressed to the Tribunal or the Commissioner.
- The decision of the Commissioner cannot be challenged on a basis never advanced before him. But even if it could, I would not accept this contention. The Claimant has never asserted that he made a claim prior to the 1st January 1989: he has assiduously refrained from doing so. If he did claim to have done so and gave evidence to this effect, there would be a live issue and the responsibility of the Agency for the loss of the page might be a relevant factor in deciding whether the claim was well-founded. The loss of the page cannot of itself establish what has never been asserted by the Claimant who surely must know and could give evidence on this issue.
- Accordingly despite the ingenuity of Mr Sinclair, I must refuse this application. It is proper however to say that this may not be the end of the road for the Claimant. For Mr Forsdick has proffered the assurance of the Secretary of State on behalf of the CRU that, if the Claimant can and does adduce further evidence of a prior claim, the CRU will give full consideration to it, and if satisfied that such a prior claim was made and that the settlement was made prior to the 6th October 1997 the CRU will effect a repayment of all to which the Claimant is entitled.
- The Commissioner clearly was entitled (if not duty bound) to refuse to extend time in case of an application which was bound to fail. To have extended time would have been to encourage the expenditure of time, money and effort on futile litigation.
- For the above reasons I refuse the Claimant the permission he seeks.
Mr Justice Lightman:
INTRODUCTION
FACTS
DECISION
CONCLUSION