Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1999] NISSCSC C11/99-00(CRS) (19 October 2001)

 


Decision No: C11/99-00(CRS)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998 COMPENSATION RECOVERY SCHEME
Appeal to a Social Security Commissioner on a question of law from a Tribunal's decision dated 10 August 1999 DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal, by the Department, leave having been granted by the Tribunal Chairman, against a decision dated 10^th August 1999 of an Appeal Tribunal sitting at Belfast. That Tribunal had allowed the appeal of the Compensator against a certificate of recoverable benefit and found that that certificate should be varied to provide that Income Support paid to the Injured Person from 20^th November 1995 to 1^st September 1996 was paid otherwise than in respect of the relevant accident and was not recoverable.
2. The background to the case was that the injured person had suffered an injury at work on 28^th November 1994 and claimed and been paid compensation for it. He had received Incapacity Benefit from 8^th July 1995 to 19^th November 1995 and Income Support from 25^th January 1995 to 19^th November 1995 both on the basis of his incapacity for work. It was not disputed before the Tribunal and the Tribunal found that those benefits were paid in respect of the accident in question and were properly recoverable. In addition the injured person received Income Support from 20^th November 1995 to 1^st September 1996. He was agreed to be fit for work from 20^th November 1995 and the benefit was paid on the basis that he was fit and available for work. The Income Support from 20^th November 1995 to 1^st September 1996 had been included in the certificate of recoverable benefits. The Tribunal found it to be paid otherwise than in respect of the relevant accident and not therefore recoverable.
3. I set out below the Tribunal's reasons:-

"Having seen and heard [the injured person] today and considered all the available evidence and submission before us, we are of the opinion that Income Support paid to [the injured person] from 20 November 1995 to 1 September 1996 was paid otherwise than in respect of the accident in question and is therefore not recoverable from him.

The benefit paid from this time was paid, not in respect of any incapacity for work, as [the claimant] was fit for work at that stage or in respect of any continuing effects of the accident (Mr L... confirms he was an employable individual at that time). It was paid by virtue of the fact that he satisfied the various other conditions for receipt of Income Support.

Commissioner's decision R1/93(CRS) indicates that benefit may still be recoverable in these circumstances, but that it is on appeal for the …. Tribunal to consider whether it could fairly be said that benefit was paid in consequence of the injury.

In this case, subsequent changes in the legislation require benefit to be paid in respect rather than in 'consequence' of the accident/injury (as was then the case before the Commissioner).

The implications of this change was in our opinion for reaching. An accident may have consequences lasting for many years including the loss of a job but the requirement that the benefit be paid in 'respect' of the accident/injury is a much more specific one, we feel and related more directly to the actual effect of the accident/injury. We cannot, on any of the evidence before us conclude that the Income Support paid from 20 November 1995 was paid in respect of the accident in question."

4. Having received the Department's grounds of appeal dated 21^st October 1999, the observations thereon by the Compensator dated 6^th July 2001 (the delay being occasioned by my deciding to postpone the case pending certain decisions of the Northern Ireland Court of Appeal and Tribunals of Commissioners in Great Britain which were of possible relevance), I decided to hold a hearing of the case. The Department attended the hearing and was represented by Mr Morrison (to whom I am grateful for his helpful submission) and the injured person also attended. The injured person's solicitor was notified of the hearing but did not attend and on my informing the injured person that he would not be responsible for repayment of any benefit on foot of my decision he was happy to proceed in the case. Unfortunately no one attended to represent the Compensator though the solicitor for the Compensator was notified of the hearing. I decided to proceed.
5. It will be noted that the Tribunal placed considerable importance in a change in the wording of the legislation covering recovery of benefit. The legislation which was applicable prior to the coming into force of the Social Security (Recovery of Benefit) (Northern Ireland) Order 1997 had provided for appeals in relation to certificates of total benefit on the basis that benefit paid other than "in consequence of" the accident, injury or disease in question had been brought into account.
6. The provisions of section 13(1)(b) of the said 1997 Order were to the effect that an appeal could be made against a certificate of recoverable benefit on the grounds that it included benefits which had been paid "otherwise than in respect of the accident, injury or disease in question".
7. Comment on the difference in the phrases "in consequence of" and "in respect of" has been made by Commissioner Goodman in Great Britain in decision CCR003/93 at paragraph 11. There the Commissioner states:-

"… The difference between the two expressions "in respect of" and "in consequence of" in sections 82(1)(a) and 98(1)(b) respectively has no legal significance but appears to have merely been a matter of drafting. …"

Commissioner Goodman was there dealing with a situation where these two expressions were used in sections of the formerly applicable 1992 legislation. The Commissioner stated at paragraph 10 referring to that legislation:-

"It should be noted that words in section 98(1)(b) (dealing with appeals) are "otherwise than in consequence of the accident, injury or disease" (my underlining). The expression "in consequence of" is not the same as the expression in section 82(1)(a) of the 1992 Act permitting recoupment by the Secretary of State which speaks of "relevant benefits … in respect of that accident, injury or disease."…"

8. The Commissioner in that case accepted the submission that in other contexts the expression "in respect of" could have a wider meaning than "in consequence of".
9. Mr Morrison submitted that the change in wording was not significant and that in context the phrase "in respect of" was interchangeable with the phrase "in consequence of". He submitted that neither term was defined in the legislation but that the dictionary definition of "in consequence of" was "as a result". Whereas the dictionary definition of "in respect of" was "with reference or relation to" Mr Morrison submitted that in isolation the phrase "in respect of" did not have to be linked to a cause but (referring to Commissioner Goodman's decision) stated that in the context of the Compensation Recovery Scheme the phrases were interchangeable and the change was not significant.
10. I had requested observations on the case of Trustees Executors and Agency Co. Ltd. v. Reilly [1941] VLR 110 referred to with approval in the case of Paterson v Chadwick [1974] WLR 890. Mr Morrison quoted from page 893 of the latter judgment where the former is quoted. In the latter judgment Boreham J. quotes with approval the following words from the former case:

"The words 'in respect of' are difficult of definition, but they have the widest possible meaning of any expression intended to convey some connection or relation between the two subject matters to which the order refers."

Boreham J describes these words as providing helpful guidance at any rate as to the "ordinary meaning of the words "in respect of"".

11. The decision of the Court of Appeal in Northern Ireland in Eagle Star Insurance v Department for Social Development ex parte McClelland was to the effect that Tribunals dealing with Compensation Recovery cases had to go behind the mere satisfaction of the statutory conditions of entitlement to benefit, such statutory entitlement not being dependant on the occurrence of an accident or injury or disease.
12. On any interpretation of the phrase "in respect of" some causative link between the accident or injury and the payment of benefit is needed. The Tribunal failed to deal with the issue of causation i.e. was the accident or injury an effective cause of the benefit being paid? The injured person had directly raised the issue that, although fit for alternative work he remained unfit for his former work as a result of the accident. He stated (and it was not contradicted) that his employer had no alternative work for him. No longer being entitled to Incapacity Benefit, he therefore claimed Income Support as he remained out of work. Had he been fit to return to his former job he would have done so and not had to claim Income Support. This clearly raised an issue of whether or not the injured person was fit to return to his former occupation and if not whether that was because of the accident or injury and if so whether that unfitness was an effective cause of the Income Support being paid.
13. The Tribunal stated that "in respect of" must relate to the actual effect of the injury but it failed to deal with the issues as to how the effects of that injury persisted.
14. It is correct, as the Tribunal stated, that the benefit was not paid on the basis that the injured person was incapable of work. Indeed the injured person did not contend that he was incapable of all work, just that he remained (for a short period) incapable of his former job as a result of the ankle injury. If the injured person was still incapable of the former job due to the relevant injury and claimed benefit because he was out of work, there being no other work available, on any interpretation of "in respect of" the relevant injury, that injury would be an effective cause of the benefit being paid. The injured person would be able to satisfy the main condition for Income Support – not being in remunerative work – because he remained unfit for his former job due to the injury and had been unable to obtain alternative work for which he was fit. Had the effects of the injury ceased on 20^th November 1995 he could have returned to the former job and the benefit would not have been paid.
15. For purposes of this decision it is not necessary that I determine whether the phrase "in respect of" has any different meaning than the phrase "in consequence of". Even if it did have and giving it the meaning of being related to the effect of the injury as the Tribunal did, the Tribunal erred in not exploring the actual effects of the injury. It effectively concluded that because the injured person was no longer incapable of all work and because the other conditions of entitlement to Income Support were satisfied, Income Support was paid other than in respect of the accident.
16. The Tribunal says the benefit was not paid "in respect of any continuing effects of the accident (Mr L... confirms he was an employable individual at that time)". However the fact that the injured person was an employable individual does not mean that Income Support was not paid in respect of the continuing effects of the accident. The Tribunal should have asked itself whether there were any continuing effects and if so whether these were an effective cause of the payment of Income Support. In essence in this case the question had to be asked – if because of the injury he was still unfit for a time for his former job, was this unfitness an effective cause of his being paid Income Support?
17. I set the Tribunal's decision aside for that reason and come then to consider whether I should give the decision which the Tribunal should have given. The situation is a somewhat unusual one in that the appeal to the Tribunal against the Income Support paid from 20^th November 1995 was lodged by the injured person's solicitor not by the compensator. In his letter of 28^th January 1999 the solicitor stated that when his client enquired about returning to his job it was no longer there for him and no suitable alternative work could be found. He therefore claimed Income Support by reason of unemployment from 20^th November 1995 onwards. The solicitor stated that this was supported by the medical report of Mr L... FRCS dated 23^rd November 1995 in which Mr L... concluded that the injured person was an employable individual.
18. Mr L...'s report of 23^rd November 1995 states inter alia, that the injured person has "been left with a slight restriction of movements in the left ankle and in the left foot. This accounts for the ongoing symptoms in the ankle region. One is quite prepared to accept that he has these symptoms." The symptoms are stated to be that the injured person's ankle is still quite sore particularly in the mornings. Mr L... continues:

"I consider, however, that he could be reassured that the ankle joint is normal and that the fracture has united solidly, even though there is a certain degree of stiffness in both the ankle and sub-taloid joint of the foot.

There is nothing on clinical examination to suggest that there is any fracture of the heel bone.

Whilst he may continue to have some symptoms in the ankle in the future, I do not [sic] any deterioration and he is an employable individual, this applies both to the short and the long term."

19. In the papers before the Tribunal there is also a letter dated 7^th April 1997 from the injured person's employers Messrs G… Brothers Ltd dated 7^th April 1997 and from their then insurers dated 19^th February 1997. The effect of this evidence would seem to be that the injured person had telephoned his employers to inform them that he had been medically advised that he could not do the job any more and would not be returning to work. At hearing the injured person informed the Tribunal that he had spoken to his employer after he was put off Incapacity Benefit and told the employer that he would like to return to work but his doctor had said he was not to be climbing catwalks for a month or so. The injured person stated that his employer had said that there was no alternative job and he would have to go back to his previous job. His ankle was still a bit stiff. His solicitor contended that there was no causal connection at all between the claim for Income Support from November 1995 and the payment of Income Support from that date. He also stated that the injured person was refused alternative work at the time when he still could not climb the stairs.
20. Two questions before me are firstly, whether I should give the decision which the Tribunal should have given and secondly, if I do so whether any or all of the Income Support was paid other than in respect of the accident. I do consider that I should give the decision which the Tribunal should have given. I understand from enquiries which I have had made that there was a Court Order in the case but that the case was settled. I was informed by the injured person's solicitor that the basis of settlement was that the injured person was entitled to claim loss of earnings from 28^th November 1995 when he was declared fit for work. That being so the question which I need to answer is whether or not the Income Support paid from 20^th November 1995 to 1^st September 1996 was paid otherwise than in respect of the accident.
21. Certainly the benefit was not paid in respect of incapacity for work as the injured person was fit for work by that stage. Had his previous job been available to him and had he been fit to do that job there would be no question that Income Support could have been paid in respect of the accident. In this case, however, I have to consider the evidence, including the injured person's statement that he was not fit for his former job at 20^th November 1995 the nature of the job, the medical evidence and the basis of settlement. There is evidence on the papers in the file that the injured person had informed his employers that he had been medically advised that he was not fit to do his previous job. The injured person was employable but he does not appear to have been fit to do his former job. Mr L... appeared to accept that he still had certain symptoms in the ankle. These symptoms were that the ankle was still quite sore particularly in the mornings and that there was a certain degree of stiffness in both the ankle and sub-taloid joint of the foot though the ankle was normal. The job is stated and I accept it to be very active with a lot of climbing, getting into lorries, going up and down ladders. The injured person also had to walk up a steep catwalk.
22. The Medical Referee Service Doctor who examined him in October 1995 found that he was unable to walk up and down a flight of 12 stairs without holding on and taking a rest and found that he also sometimes had problems in bending or kneeling. The first of these restrictions was related to the clinical findings on the ankle. The restrictions were insufficient to find the injured person satisfied the Incapacity Benefit tests but the question which I have to ask is whether the injured person was fit to return to his former job. There is no evidence to say that the job would not have been available to him had he been fit to do it.
23. His solicitor informed me by letter in response to a directed query that the case was settled on the basis that the injured person was entitled to claim loss of earnings from 28.11.94 to 20.11.95 when he was declared fit for work.
24. In the circumstances of this case and accepting all the medical evidence it does appear that for approximately one month from 20^th November 1995 the injured person remained unfit for his former job as a result of the accident. Had he been fit for the job he could have returned to work and not have claimed or been paid Income Support. The effects of the injury led to his not being able to return to work and therefore were an effective cause of his being entitled to and paid Income Support. That being so it appears to me that Income Support from 20.11.95 to 19.12.95 (inclusive) was not paid other than in respect of the relevant injury. It should therefore be included in the certificate of Recoverable Benefit
25. As for the period from 20^th December 1995 to 1^st September 1996, the injured person continued to be paid Income Support during this period and there is no allegation or issue that same was not properly paid. I must therefore ask myself was it paid other than "in respect of" the relevant accident or injury. The injured person was fit for his former job and for other work then, he no longer suffered any effects of the injury. Was the Income Support paid in respect of the accident? It is true that had the accident not happened the injured person would not have been out of work and having to claim Income Support. However, he remained out of work not because of the accident but because he did not return to his former job (for whatever reason) and was not able to get another job. The accident was not an effective cause of his being paid the benefit, it was a cause of his originally having stopped work but not a cause of his not returning once he was fit. It does therefore appear to me that Income Support paid from and including 20^th December 1995 onward was paid other than in respect of the accident. Either he was unwilling to return or the employer was unwilling to have him at 20^th December 1995. Either way the accident, while the cause of his ceasing to work had ceased to be an effective cause of his failure to return.
26. As regards Commissioner Decision R1/93(CRS) which was referred to by the Department, that was a decision under the old legislation when recovery of benefits was from the injured person to whom they had been paid. The case appears to me to be distinguishable on its facts from the present case. In R1/93(CRS) it was accepted that the relevant disease of dermatitis remained a continuing cause of the injured person's not working in his former job throughout the period in question (paragraphs 10 & 11). That was not the case here.
27. A former Chief Commissioner stated in paragraph 10 (in what appears to be the ratio of the decision)

"… In my view the acceptance by the Tribunal that Mr R was not working at his former job because of his dermatitis rendered it impossible for them also to hold that the disputed income support was paid otherwise than in consequence of the disease. The legislation does not require the disease in question to be the sole cause of the payment of benefit. The non availability of work may also be a factor; but that would not necessarily mean that the benefit received was paid otherwise than in consequence of the victim's disease…."

28. He continued at paragraph 11:-

"11. The fact that Mr R had not fully recovered from his dermatitis, in the sense that he was only available for suitable alternative employment, could be said to strengthen the argument in favour of the proposition that the disputed income support was paid in consequence of the disease. In my view, however, that was in no sense a conclusive factor. As I read the legislation a victim who had made a complete recovery, for example from an injury such as a sprain or a fracture, might also find that benefit which he had received by way of income support or unemployment benefit after he had signed on for work was included in a certificate of total benefit. It would be for the Department in the first instance and, on appeal, the Social Security Appeal Tribunal, to consider whether in the circumstances of the case it could fairly be said that the benefit was paid or payable in consequence of the injury. The conclusion reached would depend upon the individual facts of the case; but the view I take is that, where it appeared that the victim lost his job because he was unfit through his injury, any income support or unemployment benefit which he received during the relevant period would fall to be included in the certificate of total benefit, unless there were evidence to suggest that, regardless of the injury, he would have lost his job in any event; for example. though redundancy or the bankruptcy of his former employers. No such matter arose for consideration in the present case, in which it has been accepted throughout that it was because of his dermatitis that Mr R was not working at this former job, and my comments on the point are merely included by way of possible guidance in future cases."

29. It is true that the observations at paragraph 11 went further than did the reasons at paragraph 10 but the observations were obiter and as such not authoritative. It is correct that the injured person, had it not been for the accident, would have remained in his former job and not have claimed benefit. Does that then mean that the benefit was paid in respect of the accident or injury? Certainly for such period of time as the accident or injury continued to be a cause of unfitness for the former job it could be said to be so (whether or not he was fit for alternative work). The difficulty arises when the effects of the injury have worn off. Is he still paid benefit in respect of the accident? He would not have been out of work and claiming benefit had the accident not happened.
30. Is that enough to enable it to be said that the benefit was paid in respect of the accident – or more correctly was not paid other than in respect of the accident? I do not think so. It seems to me that whether the phrase in question is "in respect of" or "in consequence of" some closer relationship between the satisfaction of the conditions of entitlement and the accident is required. The accident must be an effective cause (not necessarily the sole effective cause) of the injured person satisfying the conditions for the benefit. It is not a question of claiming the benefit but of being paid that benefit. Certainly the injured person would not have been claiming Income Support had the accident not happened. However I do not think it could be said that in this case (there may be other cases where it remained an effective cause even though the claimant was again fully fit) the accident was an effective cause of him being paid the benefit once he became fit for his former job. It does not appear to me that the accident was a reason he remained out of work. He was fit for all work including his former occupation. Rather he was out of work because he either was not permitted or did not wish to return to his old job after he was fit to do it and no other work was available.
31. I note the former Chief Commissioner's observations in decision C2/92(CRS) paragraph 13:-

"13. By way of guidance in future cases I should perhaps point out that if, on the other hand, [the injured person] had come off sickness benefit at some earlier date within the relevant period, any income support which he subsequently received would not have been paid in consequence of the accident or injury in question and would not therefore have qualified for inclusion in the certificate of total benefit. Similarly, if [the injured person] had recovered fully from the injuries sustained in the accident and had developed some other complaint which rendered him unfit for work, income support received by him in such circumstances would not have been paid in consequence of the accident or injury in question."

32. These remarks were also obiter but they do appear to indicate a contrary view to the above mentioned observations in R1/93(CRS). Accordingly, I do not consider the former Chief Commissioner to have made any authoritative pronouncement in either decision which would be relevant to this issue.
33. It cannot be correct that because an injured person finds himself in a position of claiming a benefit (in the case Income Support), because of the effects of an accident, that for evermore he is to be taken to be paid that benefit in respect of the accident. Many other factors could intervene – he could even be offered his old job back and refuse it because he had moved house and could not travel to it. In such circumstances I find it difficult to see how it could be said that Income Support remained payable in respect of the accident.
34. Tribunals in dealing with such cases should examine the reasons why the injured person is able to satisfy the conditions for the benefit and should determine if there is a causal relationship between the accident and the payment of (not the initial claim for) the benefit.
35. For the reasons given above therefore I set the Tribunal's decision aside as in error of law and substitute my own decision that the Income Support paid from 20^th November – 19^th December 1995 was paid in respect of the relevant accident or injury and the Income Support paid from 20^th December 1995 to 1^st September 1996 was paid other than in respect of the relevant accident, injury or disease. Income Support paid for this latter period (20^th December 1995 – 1^st September 1996) should not therefore have been included in the certificate of recoverable benefits.

(Signed):M F BROWN

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19 OCTOBER 2001