Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1999] NISSCSC C12/99-00(CRS) (29 October 2001)

 


Decision No: C12/99-00(CRS)

CHRISTOPHERSON HEALTH CLAIM MANAGEMENT LTD (COMPENSATOR) SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998
COMPENSATION RECOVERY SCHEME Appeal to the Social Security Commissioner on a question of law from the decision of Belfast Medical Appeal Tribunal dated 9 April 1999 (as corrected on 26 July 1999)
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. In this case the compensator appeals against the decision of the Appeal Tribunal which rejected the appeal against a certificate of total benefit pursuant to which £26,755.70 was payable by the compensator to the Department in respect of benefits paid to the injured person since 27 July 1992 until 26 July 1997. As there was an error in the original decision of 9 April 1999, a corrected decision was issued on 26 July 1999. Accordingly the time limit for appealing started from that date. The original application for leave to appeal made by the compensator's solicitors appeared to be out of time, as it was received on 17 August 1999, more than three months from the promulgation of the original decision. However, as the decision was amended and issued to all parties on 26 July 1999, the application of 17 August 1999 was subsequently treated by the Independent Tribunal Service as being within time as it was made within three months from the date of the release of the corrected decision. The Chairman granted leave to appeal on 3 December 1999. (A premature application to a Commissioner had been made on 24 September 1999, before the Chairman's ruling of 3 December 1999, but this was refused for want of jurisdiction by a Commissioner on 17 December 1999 under reference LA13/99-00(CRS), without prejudice to any further application that had or would be made).
2. I arranged a hearing which took place on 26 September 2001. At the hearing the compensator was represented by Mr C of C F, Solicitors, while the Department was represented by Mrs Hall of the Decision Making and Appeals Unit. The injured person was neither present nor was he represented.
3. The apparent delay in the disposal of this appeal was occasioned by the fact that I awaited the outcome of the decision of the Court of Appeal in Eagle Star Insurance v The Department for Social Development. The Court made its decision on 12 May 2001 and it is reported in the appendix to C6/99(CRS). An opportunity was then given to the parties to make further written submissions in relation to that decision. However, as can be seen from this present decision, the Court of Appeal case did not assist in clarifying the law applicable in the present case, save for one minor point.
4. The injured person sustained injury in a road traffic accident on 26 July 1992. At that time he was an RUC Constable, although he was medically discharged from that service on 17 July 1993. He received various state benefits due to incapacity or invalidity and sickness. In a common law action against a third party he received £36,000 in the High Court on 12 November 1998 on a settlement. This settlement was on full liability and part of that sum was "ring fenced" general damages. A certificate of recoverable benefits for recoupment purposes was assessed at £26,755.70. On 25 November 1998 the Department was notified that final compensation was paid to the injured person on 12 November 1998 and a cheque for £26,755.70 was received in accordance with the certificate from the compensator's insurers. After a review at the request of the compensator the Department decided that the certificate could not be revised. The compensator, through its solicitors C and F, then appealed to a Tribunal.
5. On appeal the Tribunal unanimously came to the following decision:-

"Appeal disallowed. The amounts, rates and periods specified in the certificate of total benefit are correct and no listed benefits other than those paid in respect of the accident have been brought into account."

This is the decision as amended.

6. The Tribunal came to the following findings of fact material to its decision:-

"1. [The injured person] was involved in a road traffic accident on 26.7.92 for which he claimed compensation. He sustained a back injury in the accident.

2. [The injured person] was awarded benefits as set out in the certificate of recoverable benefit, in respect of the accident."

7. The Tribunal gave the following reasons for its decision:-

"It is not in dispute that the amounts rates and periods specified in the certificate of total benefit are correct.

Mr G contended that benefits paid other than in respect of the accident had been taken into account and in support of this relied on the opinions of Mr L, Mr W and Dr C in the relevant reports.

The consequences (sic) of opinion between the 2 consultants (Mr L and Mr W) was that [the injured person] was 'a candidate for a back problem' and had a "subnormal low back". (Mr L) and his lower back was "significantly subnormal prior to the subject injury". It would appear that the question on how much longer [the injured person] would have worked in his occupation had the present accident not occurred, was put to both consultants who were in agreement that "a figure of 2 years could reasonably be accepted" (Mr W 17.10.98 letter.)

This, however is not the matter before the Tribunal which has to decide, not how long the victim might have worked in a given occupation, or even when he might have become incapable of all work, but whether "listed benefits which have been … paid otherwise than in respect of the accident … in question have been brought into account". Neither consultant suggest that has been any other pre existing or supervisory (sic) cause for payment of benefit, and indeed Mr L states specifically "he has had the premature onset of a low back upset, as a result of the road traffic accident".

Of the other report relied on by Mr G, (Dr C's) we are reluctant to attach any weight to this – it not only fails to contain any details of history, clinical findings or observations upon which to base the conclusion that the cause of the illness/injury is "constitutional", but there is one demonstrable inaccuracy in the report which describes the treatment as "General Practitioner treatment", whereas [the injured person] has attended the Ulster Hospital (in 1982) and been treated by Dr M (1991).

[The injured person's] own General Practitioner was of the opinion (as expressed in the medical certificate) that back injury was the relevant cause of incapacity and there is no suggestion in any of the other available reports (obtained for various benefit purposes) of the existence of any cause of incapacity or disability other than back pain resulting from the road traffic accident.

In conclusion then, we are unable to agree with Mr G's propositions. Neither the weight of medical evidence nor any of the arguments put forward convince us that benefits have been paid otherwise than in respect of the accident in question. In our opinion both the weight of reliable medical evidence and the statements of [the injured person] himself, made in connection with benefit claims, all support the view that the benefits listed in the certificate were paid in respect of the accident in question."

8. The Chairman also specifically noted that there was no medical examination as the "victim did not attend."
9. The compensators then applied for leave to appeal to a Commissioner and, as stated at paragraph 1, leave to appeal was granted on 3 December 1999.
10. This is a recoupment case. A specialized recoupment scheme has been in existence since 1990 and it superseded the old system which merely subsidize the defendant to the original proceedings in common law actions and failed to reimburse the state. On paying damages to an injured person a defendant was required to deduct the amount of benefit received as a result of the accident and pay this sum to the appropriate department. The 1990 scheme (which was subsequently re-enacted in Part IV of the Social Security Administration (Northern Ireland) Act 1992) was again superseded in 1997 by new legislation which, in substance, affected all damages for personal injury by requiring the compensator, before the payment of damages, to investigate whether the Social Security Benefits listed in the legislation have been paid to the claimant/injured person over the same period as the damages related. In addition the scheme now applies irrespective of whether the compensator is also able to deduct the recoverable benefit from the damages received by the injured person.
11. The revised scheme came into force on 6 October 1997 and has retrospective effect. All cases since then, no matter when the relevant accident occurred, must comply and be assessed under the new legislation – see article 4 of the Social Security (Recovery of Benefits) (Northern Ireland) Order 1997 and regulation 2(2) of the Social Security (Recovery of Benefits) (1997 Order) (Commencement) Order (Northern Ireland) 1997.
12. The relevant law in relation to recoupment is now set out in the Social Security (Recovery of Benefits) (Northern Ireland) Order 1997 and the Social Security (Recovery of Benefits) Regulations (Northern Ireland) 1997. Since 6 October 1997 when a person (the injured person) receives an award of compensation in consequence of an accident, injury or disease, and that person has been in receipt of specified Social Security Benefit (including Incapacity Benefit, Invalidity Pension and Allowance, Statutory Sick Pay and Disability Living Allowance – the relevant benefits in this case) which has been paid in respect of that accident, injury or disease, a deduction equal to the amount of benefits received in respect of the accident, injury or disease is made from the compensation award.
13. There are three heads of specified benefits from which deductions can be made, namely, loss of earnings, cost of care and loss of mobility. Relevant settlements and court awards since 6 October 1997 have had to be divided specifically into four heads, namely, (i) general damages for pain and suffering and loss of amenity, (ii) special damages for loss of earnings, (iii) compensation for cost of care and (iv) compensation for loss of mobility. Claimant made under the heading of (i) are not subject to recoupment but any payments under (ii), (iii) and (iv) are subject to recoupment to the extent of any benefits which the injured party has received which are attributable to that head of compensation (section 10 and schedule 2 of the Social Security (Recovery of Benefits) (Northern Ireland) Order 1997). Accordingly only benefits received by the claimant in respect of the relevant accident, injury or disease are subject to recoupment from any payments made in consequence of an accident, injury or disease. Therefore, to take a simple example, if an injured person is in receipt of benefits for any other reason e.g. a pre-existing condition, then the benefits cannot be deducted from any award of compensation.
14. Before the major change in the law in 1997 (by reason of the provisions of the Social Security (Recovery of Benefits) (Northern Ireland) Order 1997) Medical Appeal Tribunals and Social Security Appeal Tribunals heard different aspects of issues of appeals against "certificates of total benefit" (the forerunners of "certificates of recoverable benefits"). However since the change in the law, Medical Appeal Tribunals, and, since 1998, Appeal Tribunals (as they are no longer are described as "Medical" or "Social Security"), are required to deal with all issues that are raised – and this includes not only medical matters but also issues of causation and any consequential questions.
15. The law has been clarified considerably since the Appeal Tribunal in the present case came to its decision. In particular a Great Britain decision (dated 18 February 2000) of Mr Commissioner Rowland (CCR2127/1999) is of significance. The claimant in that case suffered an injury to his neck in the relevant accident. However he had also suffered an injury to his neck in an earlier accident. It was held, in a decision governed by the pre 1997 law, that benefit paid in respect of incapacity for work due to the condition of his neck was recoverable only in respect of the period for which the relevant accident was an effective cause of disablement. Accordingly from the date when the effects of the relevant accident had disappeared (and therefore the only effective cause of continuing disablement was the earlier accident) benefit would cease to be recoverable.
16. It has never been disputed in the present case that the relevant accident was an effective cause of the payment of benefit for sometime after it occurred. As in CCR2127/1999 the issue is whether it remained an effective cause of the payment of benefit for the rest of the relevant period which stretched, in this case, for a period of five years (section 5(2) of the Social Security (Recovery of Benefits) (Northern Ireland) Order 1997). If the effects of the relevant accident had disappeared before the end of this period and the effects of any underlying constitutional problem or pre-existing injury had worsened since the relevant accident, so as to become incapacitating (even though the effects had not prevented the injured person from working at the time of the relevant accident) the relevant accident would have ceased to be an effective cause of the injured person's capacity to work. As Mr Commissioner Rowland made clear in CCR2127/1999, even if the pre-existing conditions had not worsened but they had become again the only cause of the injured person's disablement from which he was suffering (because the effects of the accident had worn of), they must be presumed to be the only cause of the payment of benefit.
17. This summation of the law must also be looked at in light of the comments of Nicholson LJ (in the recent Court of Appeal case of the Eagle Star Insurance v The Department for Social Development - 12 February 2001 (on appeal from C6/99CRS)) who specifically approved of the reasoning of an English Tribunal (not a Tribunal of Commissioners) in the case of Eagle Star Insurance v David Rolton (9 August 2000 – naturally unreported as it was not a case before a Commissioner) which contained the words:-

"It would be totally unjust to require compensators to repay substantial amounts of benefit when the evidence quite clearly established that such benefits were not paid in consequence of the accident."

The legislation since 1997 states that the test is whether the relevant benefit was paid "in respect of the accident, injury or disease in question" (articles 13(1)(b) and 14(2)(b) of the Social Security (Recovery of Benefits) (Northern Ireland) Order 1997 – although since 29 November 1999 articles 13(1)(b) and article 14(1) have been amended to set out the legislation of the same substance in though a different form) rather than "in consequence …." (the pre 1997 - articles 72(1) and 94(1)(b) of the Social Security Administration (Northern Ireland) Act 1992). There is an obvious difference in meaning in the respective phrases (see paragraph 17 of decision C1/99(CRS)) but, in my view, it is not a significant factor in this appeal.

18. In this case, from the available evidence and in light of the submissions made on behalf of the compensator, similar issues to those dealt with by Mr Commissioner Rowland in CCR2127/1999 arise in this case. Accordingly it is necessary for the Tribunal to deal with them.
19. Mr C submitted that there was ample evidence before the Tribunal to compel it to come to the conclusion that the relevant benefits were not paid in respect of the accident long before 26 July 1997 (when the relevant five year period ended). In particular he submitted (as set out succinctly in his skeleton argument which was further amplified at the hearing), inter alia, as follows:-

"3. The medico-legal report from Mr. L (dated 13/4/95) submitted on behalf of [the injured person] in support of his High Court claim for damages indicates that he had suffered from low back pain in 1982 which necessitated his referral for orthopaedic treatment. Acute low back pain recurred in 1991. This history led Mr. L to conclude with rio (sic) doubt that: "[The injured person] has a subnormal low back." Referring specifically to the accident giving rise to the High Court proceedings, Mr. L stated that the "type of injury which he sustained would have caused problems for perhaps some weeks but not problems going on into the long-term". Mr. L concluded that [the injured person] had been a candidate for a back problem but that in view of his medical history "ongoing problems are not directly related to the accident'.

4. Reporting on behalf of the Compensator in the High Court case, Mr. W (in his report of 17/10/98) stated: ".. one would therefore regard his lower back as significantly subnormal prior to the subject injury. The absence of a satisfactory recovery after this injury as one might have expected would lead one to the conclusion that he did indeed have significantly vulnerable lower back. It is likely that he would have had further symptoms in the lower back even in 1992 had it not been for the subject injury, although one can never be absolutely certain." Referring to the Plaintiffs medical discharge from the RUC, Mr. W states: "… one would have thought it likely that he would not have worked for much more than two years had it not been for the subject injury … A lesser period of time would be possible as would a longer period of time, but Mr. L and I would be in broad agreement with each other that a figure of two years Could (sic) reasonably be accepted".

5. In short, both orthopaedic surgeons are in agreement that even in the absence of the subject accident the Plaintiff's pre-existing low back subnormality would have deteriorated to the extent that the Plaintiff would have been unable to continue in his police career within 2 years of 26/7/92. Consequently it is the Compensator's respectful submission that benefits may reasonably be attributed to the subject accident for a period of two years until 26/7/94. Beyond that date, payment of benefits could more reasonably and properly be attributed to the Plaintiff's constitutional back subnormality.

6. We place further reliance upon the opinion expressed by Dr. C (the Police doctor who authorized the Plaintiffs medical retirement) on 18 May 1993. Dr. C stated that the Plaintiff was suffering from "Chronic Back Pain" and that the "Cause of Illness or Injury" was "Constitutional".

7. The Plaintiffs General Practitioner last specifically attributed [the injured person's] absence from work to his road traffic accident on 30 July 1992.

8. ….

9. In conclusion, the subject accident caused [the injured person] to sustain an exacerbation of his previously subnormal low back. In the absence of [the injured person's] previous medical history Mr. L would have expected his injury to cause problems for "perhaps some weeks" or a period between some months and up to two years according to Mr. W. Any disability persisting beyond 2 years cannot reasonably be attributed to the subject accident.

10. It is therefore respectfully submitted that all benefits paid beyond that two-year period should not be attributed to the accident and that such benefits should be deleted from the revised certificate that we request."

20. Mrs Hall, in her skeleton argument which was also amplified at the hearing, took issue with Mr C's submissions. In particular she stated:-

"3. The grounds of appeal concern the issue of whether the decision of the tribunal was lawful, in light of the medical evidence contained in the reports of Mr L and Mr W. It is contended that the quote, used in the tribunal's reasons for decision, from the report of Mr L:-

"he has had the premature onset of a low back upset, as a result of the road traffic accident"

was taken out of context. It is also contended that, on the balance of probabilities, the injured person would not have remained in his employment as a police officer beyond two years after the date of the accident, because of a pre-existing back problem.

To address this point it is necessary to consider exactly what the tribunal said in relation to the medical evidence. At part 4 of form MAT(CRU)8, the tribunal recorded:-

"The consequences [sic] of opinion between the 2 consultants (Mr L and Mr W) was that [the injured person] was 'a candidate for a back problem' and had a 'subnormal low back' (Mr L) and his lower back was 'significantly subnormal prior to the subject injury'."

(It appears the word 'consequences' is a typographical error and should read 'consensus'). This indicates, I submit, that the tribunal had taken account of all the medical evidence. I further submit that the quote used as referred to by the compensator's representative does not mean that the tribunal had not taken account of the evidence or that they were reading this quote out of context. Rather, the tribunal were indicating that they considered this to be an important point, and this they were entitled to do (R(SB) 9/81, paragraph 11).

4. The second point of appeal is that the evidence indicated that, on the balance of probabilities, the injured person would not have remained in his employment as a police officer beyond two years after the date of the accident, because of a pre-existing back problem. The representative contends that three medical reports all attribute the injured person's receipt of benefits after July 1994 (i.e. two years after the accident) to his "constitutional" back problem.

The tribunal, however did not attach any weight to the report of Dr C and gave reasons why. This, again, they are entitled to do, per R(SB) 9/81. The tribunal went on to refer to the opinion of the injured person's own GP which was that the back injury was the cause of incapacity. I respectfully submit that the tribunal decided that there were three medical opinions to be taken into account, but rather than those referred to by the compensator's representative, these were the reports of Mr L (in particular the quote at paragraph 3 above), Mr W and the injured person's GP. In his report Dr W stated that the figure of 2 years was offered as a guide and "a lesser period of time would be possible as would a longer period of time". In view of this, I submit that the tribunal did not err in relation to the weight attached to these reports.

The tribunal stated correctly that their role was:-

"… to decide, not how long the victim might have worked in a given occupation, or even when he might have become incapable of all work, but whether 'listed benefits which have been … paid otherwise than in respect of the accident … in question have been brought into account'."

(they quoted from Article 14(2)(b) of the Social Security Recovery of Benefits Order (NI) 1997 before it was amended from 29 November 1999).

5. The tribunal was entitled to weigh the medical evidence and I submit that this approach was approved by the Court of Appeal in the decision Eagle Star Insurance v the Department for Social Development (reported as an appendix to R1/01(CRS)), which stated:

"We do not intend to tie the hands of the MAT. They are entitled to examine the documents placed before the SSAT and study their findings and take them into account, but they are not obliged to do so."

They went on:

"They must reach their own decision, having given such weight as they think fit to the information (if any) presented to them by the DHSS and by the compensator …".

In view of this, I submit that the tribunal was entitled to come to the decision reached.

6. In the Reasons for the Decision the tribunal commented:

"Neither the weight of medical evidence nor any of the arguments put forward convince us that benefits have been paid otherwise than in respect of the accident in question. In our opinion both the weight of reliable medical evidence and the statements of [the injured person] himself, made in connection with the benefit claims, all support the view that the benefits listed in the certificate were paid in respect of the accident in question."

I submit that the decision of the tribunal was entirely consistent with the verdict of the Court of Appeal."

In addition it was emphasised by Mrs Hall at the hearing that the factual report (DLA 370 (GEN)) from Dr M, the claimant's general practitioner, stated that the injured person's back injury was the cause of the incapacity.

21. There is no doubt that the Tribunal took especial care in this case. However, it did not have the benefit of the clarification of the law contained in Mr Commissioner Rowland's decision CCR2127/1999. It undoubtedly focused on the continuing conditions of the injured person. The Tribunal in particular noted that the injured party's own General Practitioner "was of the opinion (as expressed in the medical certificate) that back injury was the relevant cause of incapacity and there is no suggestion in any of the other available reports (obtained for various benefit purposes) of the existence of any cause of incapacity or disability other than back pain resulting from the road traffic accident." However, close examination of the relevant form demonstrates that this opinion was given in reply to specific questions. The relevant portion of DLA 37(GEN) states as follows:

"Your Report

1. Diagnosis of conditions

present.

2. Date you last saw the patient.

3. Present clinical condition.

4. Treatment

5. Date (approximate month month year

and year) of onset of

present clinical state."

22. It is perfectly possible that the injured person had had back problem prior to the accident in 1992 and at the same time severe back pain (my emphasis) may only have occurred when the accident took place. It is also perfectly possible for the onset of the injured person's relevant clinical state, namely, severe back pain, to commence on 26 July 1992 even though, perhaps, he suffered back problems or had a defective back at an earlier date. I venture to suggest that the particularity of the questions in DLA 370(GEN) are not particularly helpful in the present case, as it would have been of assistance if the doctor had been asked the date of onset of any related relevant conditions. Suffice to say, I do not consider that the conclusion of the Tribunal from the general practitioner's report is necessarily correct in the present case. It seems to me that the Tribunal has given undue weight to the answers of the general practitioner without taking into account the nature of the specific questions to which the answers were given. In the circumstances I do not consider that the Tribunal was entitled to support its decision (that the relevant accident was the effective cause of the injured party's incapacity for the five year period) on this evidence.
23. The Tribunal correctly stated that it was required to decide whether "listed benefits which have been … paid otherwise than in respect of the accident … in question have been brought into account." The Tribunal also specifically concerned itself with the issue of whether there had "been any other pre-existing or supervisory cause for payment of benefit." (I have assumed that the word "supervisory" has been inserted in error as it seems that the word intended was "supervening".
24. However, there was considerable evidence of a pre-existing problem. Dr C's report dated 18 May 1993, which supported the decision for medical discharge from the police, made it clear that it was the doctor's view that the cause of the injury was "constitutional". The substance of this report was not accepted by the Tribunal but the Tribunal gave its reasons for so doing in the fifth paragraph of the reasons for its decision.
25. The Tribunal seems (at paragraph 3 of its reasons) to have accepted that the two relevant consultants (Mr L and Mr W) both considered that the injured person had had a pre-existing back condition and would have been, in any event even if there had been no relevant accident, unable to continue in his police career after 26 July 1994 (which is two years after the date of the accident). The Tribunal has latched onto the fact that Mr L stated specifically that the injured person "has had the premature onset of a low back upset as a result of the road traffic accident". However, if one looks at the complete opinion and prognosis set out in Mr L's report of 13 April 1995 one finds the following:-

"OPINION & PROGNOSIS:

I have no doubt that [the injured person] has a subnormal low back.

The difficulty in type of injury which he sustained would have caused problems for perhaps some weeks but not problems going on into the long term.

It is also noted that he did have a significant injury of low back problems in the past dating to 1982 although his periods away from work were relatively brief.

Taking these features into account, one I consider can argue that he has had the premature onset of a low back upset as a result of the road traffic accident. It would have to be conceded that he was a candidate for a back problem, given time and the nature of his occupation.

In summary, he is a quite employable individual as long as he is given accommodation with regard to his back. The accident with which we are concerned did cause his premature withdrawal from his occupation.

I do not anticipate any progressive problems in his back as a result of the accident and ongoing problems are not directly related to the accident, taking into account the various features which I have recorded. It is always difficult to be certain with regard to the time period."

In my view, when this part of the report is read as a whole, it is clear that Mr L was accepting that the injured person had a significant pre-existing problem. Mr L's opinion that there was such a problem is further supported by Mr W's note in his medical report of 17 October 1998 that both he and Mr L agreed that the injured person would probably have to have left the police in any event two years after the relevant accident because of his pre-existing back problems. I appreciate that the test for the adjudicating authorities was not whether he is able to keep a particular job, but it is a relevant factor which a Tribunal, in my view, ought at least to take into account.

26. It seems to me that the Tribunal has failed to take adequate account of this evidence, or if it has, it has failed to give adequate reasons why it did not accept the evidence. It maybe that, without the benefit of Mr Rowland's decision (CCR 2127/1999), the Tribunal directed its mind unduly to the original reason for the payment of benefit and did not adequately consider whether the accident or injury was an effective cause of the payment of benefit.
27. In the circumstances I conclude that the Tribunal erred in law by not correctly assessing the medical evidence in accordance with the legal position which has now been set out subsequent to the Tribunal hearing by Mr Commissioner Rowland. I accordingly allow the appeal and set aside the decision of the Tribunal. I am satisfied that the compensator has an arguable case but I am also satisfied that there are still issues of fact to be clarified and decided. Accordingly I consider that it is more appropriate that the case be considered by an Appeal Tribunal having a Medical Practitioner among its members than that I decide the case. In particular I note that there is now medical evidence available from Mr W FRCS in a report dated 28 May 1996 which was not produced to the Tribunal. This and any other relevant evidence can be brought before the new Tribunal.

(Signed): J A H MARTIN QC

CHIEF COMMISSIONER

29 OCTOBER 2001