Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1995] NISSCSC C1-93(CRS) (8 August 1995)

 


Decision No: C1/93(CRS)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS

(NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS)

COMPENSATION RECOVERY SCHEME

Appeal to the Social Security Commissioner

on a question of law from the decision of the

Belfast Social Security Appeal Tribunal

dated 5 October 1992

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an appeal by the Compensation Recovery Unit against the decision of a Social Security Appeal Tribunal relating to the amount to be deducted and recouped by the Compensation Recovery Unit from damages which victim received in respect of an accident.
2. I arranged an oral hearing at which victim was represented by Mr K…, Solicitor of Messrs C…, Solicitors and the Compensation Recovery Unit was represented by Mr G…, Solicitor of the Department of Health & Social Services.
3. The Tribunal by a majority decision held that the Compensation Recovery Unit was only entitled to recover the difference between the income support benefit which victim received before the accident and the additional amount which he received after the accident. It said that although he received income support after the accident which was greater than that received before the accident it based its decision on the fact that victim would have continued to have received that sum had he not been injured and is the only sum victim received "in respect of his accident". In other words what the Tribunal decided was that he was receiving income support before the accident, he received additional income support after the accident and that the Compensation Recovery Unit was only entitled to recover the difference. The Chairman dissented and expressed the opinion that victim ceased to be available for work and the income support which he received after the accident was for a different reason from the income support which he received before and that the total amount was recoverable.
4. The Agency sought and received leave to appeal on the grounds that:-

"The facts found by the Tribunal are such that no Tribunal, acting

judicially and properly instructed as to the relevant law, could

have decided that the Department of Health and Social Services

was only entitled to recover the greater amount of Income Support

received after the accident viz £1,956.44. The Income Support paid

after the accident was based on the fact that the claimant was not

available for work on account of incapacity [see paragraph 5 of

Schedule 1 to the Income Support (General) Regulations (Northern

Ireland) 1987 - SR 1987 No 459 substituted by Regulation 14 of the

Income Support (General)(Amendment No 5) Regulations (Northern

Ireland) 1988 - SR 1988 No 431].

Income Support was paid prior to the accident because the claimant

satisfied the provisions of Article 21(3) of the Social Security

(Northern Ireland) Order 1986 [now Section 123(1) of the Social

Security Contributions and Benefits (Northern Ireland) Act 1992].

The Income Support paid to the claimant from 27 October 1989 to

16 April 1992 (viz £6,488.45) was paid in consequence of the

accident and therefore is properly recoverable by the Department

of Health and Social Services under the provisions of Article 24

of the Social Security (Northern Ireland) Order 1989 [now

Section 78 of the Social Security Administration (Northern Ireland)

Act 1992]."

5. At the hearing before me Mr G… argued at length the relative provisions relating to the power of the Recovery Unit to recover all benefits paid to a victim in consequence of an accident.
6. I have considered all that has been said and the relevant law. Under Article 2 of the Social Security (1989) Order where injury occurs on or after the 1.1.89 and payment of compensation in respect of it is made on or after 3.9.90 the compensator must deduct from the compensation payment an amount equal to the gross amount of any relevant benefit paid during the relevant period in respect of the injury as certified by the Department and that is contained in Article 24 and Schedule 4 of the Social Security (Northern Ireland) Order 1989. So the question was what benefit is paid in respect of the injuries. This matter was dealt with at length in the Court of Appeal in Great Britain in the case of Hassall and Pether -v- The Secretary of State for Social Security in which Henry LJ delivering the judgment of the Court rejected the victim's argument that because the same quantum of benefit would have been paid had the accident not happened the post-accident benefits were not paid as a consequence of the accident. The Court went on to hold:-

"... The post-accident benefits that were paid were clearly paid

on the strength of the medical certificates dealing with the

injuries caused by the accident and the appellant's recovery from

those injuries. Because of these medical certificates, only the

post accident from of benefits could be claimed. ...

It seems to me to be clear beyond argument that the post-accident#

benefits recouped were not "benefits paid otherwise than in

consequence of the accident": they were clearly paid as a direct

consequence of the accident. No other construction is possible."

7. In the light of that decision the victim's solicitor wrote seeking to withdraw his appeal but in fact the appeal was not by him but by the Compensation Recovery Unit.
8. Following the Court of Appeal decision I am satisfied that this appeal must be allowed, that the majority decision of the Tribunal was wrong in law and that the earlier decision of the Compensation Recovery Board was correct.
9. It is interesting to note that in a recent issue of the Guardian the Social Security Committee of the House of Commons criticised the Scheme for recovery and called for root and branch changes to the massively unfair system in which the Government clawed back compensation awards to victims of injury or disease. However I must apply the law as I find it and for that reason the appeal is allowed and held that the amount of £6,493.44 was properly recoverable from the victim.

(Signed): C.C.G. McNally

COMMISSIONER

8 August 1995