Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1999] NISSCSC C7/99(CRS) (1 August 2001)

 


Decision No: C7/99(CRS)

SOCIAL SECURITY ADMINSTRATION (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998 COMPENSATION RECOVERY Appeal to a Social Security Commissioner on a question of law from a Tribunal's decision dated 29 April 1999 DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal, by the compensator, leave having been granted by myself, against a decision dated 29^th April 1999 of an Appeal Tribunal sitting at Belfast. That Tribunal had allowed the compensator's appeal against a Certificate of Recoverable Benefit dated 14^th October 1998. It decided that benefits paid to the injured person after 1^st February 1996 were paid otherwise than in respect of the relevant injury (occasion by accident on 30^th April 1992) and were not recoverable.
2. I set out the Tribunal's reasoning as it is of relevance to my own decision. The reasoning is as follows: -

"The medical evidence before the Tribunal clearly supports the view that by the date of Mr L…'s report of 29.2.96, on the balance of probabilities, [the injured person] had no significant symptoms referable to the relevant accident. There is also some considerable doubt as to his credibility in describing his condition and resulting disabilities.

We accept Mr C…'s argument that whatever the position was prior to February 1996, by that time the medical evidence is consistent.

We note the contents of Dr S…'s report, which is incomplete and undated but appears to have been written in 1994 and it has not been argued that benefits paid at that time were paid otherwise than in respect of the relevant accident."

3. The grounds of appeal to the Tribunal were as follows: -

"The medical evidence attached demonstrates that the benefits paid to the Injured Party have not been paid in respect of the accident in question, but as a consequence of, and in respect of, the Injured Party's fabricated, exaggerated or imagined symptoms and complaints. The medical evidence demonstrates that no causal link exists between the accident in question and the amount, rate or period of benefits paid."

4. The medical evidence referred to is medical report dated 29^th February 1996 from Mr J H L… FRCS. That report amongst other things referred to an earlier report by Mr H… and a report by a Dr S…, presumably the same one referred to by the Tribunal.
5. The Compensator sought leave to appeal by letter dated 2^nd August 1999. The grounds of appeal were that the Tribunal had erred in law in ruling that the evidence showed that benefits before February 1996 were paid in respect of the accident and that it had unreasonably, irrationally and unlawfully decided that the medical evidence of Dr S… and the Plaintiff's General Practitioner proved that the benefits paid before February 1996 had been paid in respect of the actual injury sustained in the accident. It was further submitted that the Tribunal had erred in law in ruling that the Compensator had not reached the standard of evidence required to show that benefits paid before February 1996 were paid otherwise than in respect of the accident.
6. Observations on the appeal were made by the Decision Making and Appeals Unit of the Department by letters dated 17^th December 1999, 12^th March 2001 and 28^th June 2001. The Department supported the appeal but for reasons other than those put forward by the Compensator. In essence the Department submitted that there was no error of law revealed in the Compensator's application grounds but submitted that the Tribunal had erred in law in proceeding to determine that Income Support was not recoverable without investigating on what basis the award of Income Support had been made. It referred to decision C2/96(CRS) where the Chief Commissioner held that the onus of proof was neutral. Consequently the Department submitted that the task of the Tribunal was to decide, based on the evidence and facts whether any benefit paid otherwise than in respect of the accident had been included on the Certificate of Recovery. In the Department's submission the Tribunal in carrying out this task had erred in failing to adjourn to enable production of the evidence that lead to the claimant satisfying the All Work Test assessment (he having been paid Income Support on the basis of Incapacity for Work).
7. I pause here to note that decision C2/96(CRS) was a decision on the old recoupment of benefit legislation under the Social Security Administration (Northern Ireland) Act 1992 whereas this present case is to be decided under the Social Security (Recovery of Benefit) (Northern Ireland) Order 1997. However, I am satisfied that the neutral onus of proof referred to in C2/96(CRS) is applicable to Article 13(1) of the Order as it was to section 94(1) of the 1992 Act. I agree with the Chief Commissioner in the above mentioned decision where he states: -

"The burden of proof is neutral and the question simply has to be determined in the light of all the evidence on the relevant issues."

8. I do consider that the Tribunal erred in law in this case though my main reason for doing so is that I am not of the view that the Tribunal was correct in its statement that it had not been argued that benefits paid in 1994 were paid otherwise than in respect of the relevant accident (see the reasons for the decision mentioned above). Mr C… who attended the Tribunal hearing instructed by the solicitors for the Compensator is recorded as having stated: -

"Compensator may only submit medical report – his condition in 1996 can be shown."

Mr C… is then recorded as referring to various medical reports by Mr L…, Mr H…, Mr B… (dated 4^th July 1996), Dr K…, Dr F… (March 1996), Mr K… and Dr S…. The letter of appeal, as mentioned above, does not confine itself to the situation from 1994 onwards but disputes all benefits paid as having not been paid in respect of the accident in question.

9. Certain of the medical reports mentioned by Mr C… (notably those of Mr B… and Mr K… and possibly certain of the other reports do question the claimant's credibility and most of the other reports do suggest some difficulty in accounting for the symptoms which he has claimed and to conditions in existence prior to the relevant injury. It is certainly correct that the bulk of the medical reports are from 1996 onward but this, presumably, is because the Compensator was notified of the claim some years after the accident took place. Certainly the Compensation Recovery Unit was notified by the Compensator on 31^st January 1996 that a claim had been made.
10. It does not appear to me that the fact that the medical evidence largely started in 1996 and onward or that the statement made by Mr C… to the Tribunal could have properly led the Tribunal to the view that it was not argued by him that benefits paid up to 1994 were paid otherwise and in respect of the relevant accident. Certainly the appeal letter refers to all of the benefits paid being in dispute. Certainly Mr B… and Mr K… were both referring to problems with the claimant's credibility which would be applicable throughout the period from the injury onward. These are specifically mentioned by Mr C….
11. I therefore consider that the Tribunal erred in taking the view that the situation from 1992 onward was not in contention. I set the Tribunal's decision aside for that reason.
12. As I am not of the view that this is a case where I should give the decision which the Tribunal should have given I remit this matter to a differently constituted Tribunal. The Department has made a point about the documentation in relation to the All Work Test not having been before the Tribunal. It will now have an opportunity to place that documentation before the Tribunal. The Tribunal should bear in mind the decision of the Northern Ireland Court of Appeal in the case of Eagle Star v the Department for Social Development and the recent decisions of the Tribunal of Commissioners in Great Britain on the Compensation Recovery Cases. It would be no doubt helpful to the Tribunal if the parties were in a position at hearing to make submissions on those cases.

(Signed): M F BROWN

COMMISSIONER

1 AUGUST 2001