Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1993] NISSCSC A1/93(CRS) (13 September 1993)

 


A1/93(CRS)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS) (NORTHERN IRELAND) ACT 1992 COMPENSATION RECOVERY SCHEME Application for leave to appeal to the Social Security Commissioner on a question of law from the decision of Londonderry Social Security Appeal Tribunal dated 26 November 1992 DETERMINATION OF THE SOCIAL SECURITY COMMISSIONER
1. In this case Mr W…, (the victim), seeks leave to appeal against the decision of Londonderry Social Security Appeal Tribunal, whereby it was held that the sum of £765.60 was properly deducted from a compensation payment made to him by the Department of the Environment, (the compensator), in respect of an accident on 11 July 1991.
2. Briefly, the undisputed background facts are that in the accident the victim, who was then unemployed and in receipt of income support, suffered a fractured collar bone, together with injuries to his shoulder and hand. He subsequently claimed and was awarded sickness benefit for the period from 11 July 1991 to 23 November 1991; during which time he was certified unfit for work as a result of his injuries. A claim for compensation having been notified by the compensator, a certificate of total benefit was in due course issued by the Compensation Recovery Unit, (the CRU), to the parties setting out the amount of relevant benefit said to have been paid to the victim because of the injury on 11 July 1991. Under the terms of the Compensation Recovery Scheme introduced by Article 24 of and Schedule 4 to the Social Security (Northern Ireland) Order 1989, and now re-enacted in Part IV of the Social Security Administration (Northern Ireland) Act 1992 (the Administration Act), the compensator was required to deduct from the compensation payment and pay to the CRU, the amount specified in the certificate of total benefit, namely £1,489.54.
3. On appeal by the victim he was informed by the CRU that there were errors in the certificate of total benefit and that the amount properly deductible should have been £765.60. The sum of £723.94 was accordingly refunded to the victim, and at the hearing before the Appeal Tribunal it was accepted that the amount set out in the revised certificate of total benefit was correctly stated at £765.60. On the victim's behalf it was argued that he would have been in receipt of income support if he had not been injured in the accident and that the amount which would have been paid to him by way of that benefit should not therefore have been recouped from his compensation award. This argument was rejected by the Appeal Tribunal who held that the amount specified in the revised certificate had properly been deducted from the victim's compensation payment.
4. In the application for leave to appeal submitted on the victim's behalf by his solicitors, the grounds relied upon were stated to be:-

"(1) Wrongly interpreted the law

(2) Breach of the rules of natural justice."

In response to a request for more information these grounds were amplified in a letter dated 23 March 1993 from the victim's solicitors. The letter is on the case file and it is unnecessary for me to set it out in full. Shortly stated the arguments were that the Appeal Tribunal had not addressed their minds to the true interpretation of "a compensation payment" as referred to in Article 24 of the Social Security (Northern Ireland) Order 1989 - now section 78(1) of the Administration Act. It was said that a compensation payment had wrongly been taken to be "the global figure representing the accumulation of the figures representing both the general and special heads of damages, these being separate entities in themselves." It was further submitted that the purpose of the legislation was to curb the injustice caused by "over compensation" or "double compensation", which might arise where an injured party received special damages for loss of wages in addition to state benefits. Where, as in the present case, there was no claim for loss of earnings, it was said that Article 24 did not apply. So far as the alleged breach of the rules of natural justice was concerned, this was again said to result from the Tribunal's interpretation of Article 24 in that an unemployed claimant was treated less favourably than an employed claimant by having his benefits deducted from his general damages and not from his loss of earnings.

5. In reply to an invitation to comment upon the application for leave to appeal, the Department, by letter dated 4 May 1993, referred to the statutory definition of "compensation payment" and to Decision No. C2/92(CRS) in which it had been stated that it was not for the Tribunal or the Commissioner to investigate the scope or basis of a compensation payment to a victim. It was further submitted that the Tribunal's interpretation was in accordance with law.
6. I held an oral hearing at which the victim, who was not present, was represented by Mr McD…, LLB of Messrs K…, K… & C…., Solicitors, of …. The Department was represented by Mrs Fitzpatrick, Solicitor.

Mr McD… indicated that the grounds upon which he was relying were those set out in the letter of 23 March 1993: namely that the Tribunal had misinterpreted the legislation and had breached the rules of natural justice in failing to apply the fundamental principle of equality before the law. I enquired if this really meant that he was asserting that the legislation as interpreted by the Tribunal was unfair and unjust. He agreed that this was indeed the case which he was making. In his submission, benefit should only be recouped from loss of wages, and it was unjust that a victim who was unemployed and in receipt of income support should have to suffer a reduction from his compensation award of an amount of benefit which he would have received in any event. I pointed out that it was not for the Commissioner to rule on the fairness of the legislation within his jurisdiction. That was a matter for Parliament, and so far as the Commissioner was concerned, he was bound to apply the relevant legislation whether or not it seemed to him to result in unfairness. I further enquired of Mr McD... whether he was aware of any provision in the legislation to the effect that the relevant benefits could only be recouped from special damage or loss of wages and he said that he was not.

Mrs Fitzpatrick submitted that there was nothing in the legislation to limit the recoupment of benefit to cases in which there was loss of earnings, and she referred to my decision in No. C2/92(CRS). There was, she said, no ambiguity in the legislation and there was accordingly no reason to consider what might have been the mischief against which it was directed. The sickness benefit which the victim had received had clearly been paid in consequence of the injury he sustained and the Tribunal had been correct to decide that it was recoverable.

7. I have considered this matter and have reached the conclusion that there are no grounds for holding that the decision of the Appeal Tribunal in this case was erroneous in point of law. In Decision No. C2/92(CRS) I dealt fully with the question of the absence of any provision in the legislation which might restrict recovery of a relevant benefit to cases in which the victim had suffered special damage. The following quotation from paragraph 12 of that decision should suffice to explain my views on the matter:-

"I accept that, because he was unemployed at the date of the

accident, [the victim] may not have been able to claim special

damage by way of loss of wages as such; but it was nevertheless

open to him to claim that he had been deprived of the opportunity

of earning wages which he might otherwise have earned and his

claim for general damages for pain and suffering and loss of

amenity was no doubt enhanced to some extent by the fact that

he was being certified unfit for work by his GP. It is also

right to say, as was pointed out by Mr G… at the hearing, that

it is not for the Tribunal or the Commissioner to investigate

the scope or basis of a compensation payment to a victim. They

are not concerned with the amount of the compensation paid nor

with the possible headings under which it may have been assessed.

Whatever may have been the underlying intention of the legislation,

there is no provision that benefit is only to be recoverable if a

victim is compensated for an actual or potential loss of earnings.

So far as the adjudication authorities may be concerned, their task

in a case of this nature is to determine whether, in the words of

section 94(1)(b) of the 1992 Administration Act, any benefit paid or

payable otherwise than in consequence of the accident or injury in

question has been included in the certificate of total benefit."

I am also satisfied that there is nothing to suggest that there has been a breach of the rules of natural justice as they apply in a case of this nature. My views on this subject were explained in more detail in paragraph 4 of C2/91(IS) as follows:-

"It is correct to say that, like any adjudicating authority, an Appeal

Tribunal must observe the rules of natural justice and any breach

thereof will constitute an error in point of law. The rules of

natural justice are, however, concerned with procedure and are

designed to ensure that a claimant is accorded a fair hearing and

given a reasonable opportunity to present his case. There is no

overriding general "law of natural justice" which takes precedence

over the law of the land and upon which the individual citizen may

rely when he considers that a particular provision of a Statute or

Regulations operates unfairly against him or others. If any change

in the law is thought to be required, that is a matter for Parliament,

or possibly nowadays for the Council of the European Communities; but

so far as the Appeal Tribunal are concerned they have no power to

disregard or override a provision of the Regulations, however unjust

or unfair they may consider that provision to be. Similarly, the

Commissioner cannot intervene, but is bound to apply the legislation

relevant to the circumstances of the case."

8. For the reasons given in paragraph 7 above leave to appeal will be refused.

(Signed): R R Chambers

CHIEF COMMISSIONER

13 September 1993