Northern Ireland - Social Security and Child Support Commissioners' Decisions

 


Decision No: C1/03-04(CRS)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998 COMPENSATION RECOVERY SCHEME Appeal by the Compensator to the Social Security Commissioner on a question of law from the decision of an Appeal Tribunal's decision dated 26 August 2003 DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. In this case the compensator appeals, with the leave of the legally qualified member of the Tribunal, against the unanimous decision of the Tribunal, which allowed in part the appeal of the compensator from a decision maker's decision and held, in particular, that the amount of benefits listed on the certificate of recoverable benefits was recoverable up to and including 28 April 2000 and that the amount of benefits listed from 29 April 2000 was not paid in respect of the relevant accident and therefore was not recoverable.

2. I arranged a hearing which took place on 27 October 2004. At the hearing the compensator was represented by Mr Phillips of Counsel, instructed by Murphy & O'Rawe, Solicitors, while the Department was represented by Mr Sloan of Decision Making Services. The injured person was neither present nor represented and, indeed, took no active part in the proceedings.

3. On 24 October 1997 the Compensation Recovery Unit was informed that the injured person had lodged a claim for compensation because of an accident that had occurred on 6 June 1997. The injured person claimed incapacity benefit credits from 7 June 1997 until found capable of work, namely, from and including 9 June 2000. He received income support (IS) on the basis of his incapacity for work from 9 June 1997 until 7 June 2000. He also claimed and was awarded disability living allowance (DLA) (low rate mobility component) from 13 May 1998 until 18 May 1999. IS and DLA are recoverable social security benefits. On 25 September 2001 an officer of the Compensation Recovery Unit decided that the compensator was liable to pay to the Department an amount equal to the total of recoverable benefits paid to the injured person in respect of the alleged accident. A certificate of recoverable benefits was issued to the compensator, advising it of this decision and its liability for full payment. Arising out of this accident a claim was made by the injured person for compensation. On 19 November 2001 the compensation claim was settled and a cheque amounting to £13,399.06 was received by the Compensation Recovery Unit on 31 December 2001 in full discharge of the compensator's liability. The Compensator had the right to appeal against a certificate of recoverable benefits and such an appeal can be "made on the ground … that any amount, rate or period specified in the certificate is incorrect" "and that listed benefits which have been … paid otherwise than in respect of the accident, injury or disease … question have been brought into account." (Article 13(1) of the Social Security (Recovery of Benefits) (Northern Ireland) Order 1997). On 28 November 2002 the compensator lodged an appeal against the amount of recoverable benefits. On 26 August 2003 the Tribunal allowed the compensator's appeal in part, finding that the amount of benefits listed on the certificate of recoverable benefits was recoverable up to and including 28 April 2000 and that the amount of benefits listed from 29 April 2000 was not paid in respect of the relevant accident and therefore not recoverable.

4. The reasons for the Tribunal's decision were set out by the legally qualified member in the following terms:

   "The history of the case is as set out in the submissions. [The injured person] sustained a fracture of his right ankle and contusional type injury to his left knee at work on 6 June 1997. He claimed and received Income Support from that time on the basis of his incapacity for work. General Practitioner certificate refers to fracture right ankle/leg/talus (…). He completed self assessment forms on 11.2.98 and 30.11.98 and 10.2.00 indicating that he had problem with standing, walking, using stairs and bending/kneeling (…); he was examined on 18.2.99 for incapacity purposes and found to have significant problems with rising from sitting, bending/kneeling, standing, walking and using stairs, at a level where he was considered incapable of work (score in excess of 15 points in respect of physical descriptors). He was again examined for incapacity purposes on 28.4.00 and although still found to have some disabilities with regard to standing, walking and using stairs, these were not at a level where he was considered incapable of work (total score of 10 in respect of physical descriptors). (The scoring of descriptors is, under Schedule 1, within the knowledge of the tribunal members although, for further reference, it might be helpful if the scoring system was included with CRU papers).

   Due presumably to bureaucratic time lapse, Income Support benefit continued to be awarded after this examination, when [the injured person] was clearly found, by the departmental examining officer, to be capable of work. This, in our view, was wrong. We feel that the evidence and opinion of the examining doctor outweighs [the injured person's] own assessment and the certificate provided by his General Practitioner, and that he was not entitled to receive Income Support on the basis of his incapacity for work having been assessed otherwise by the examining doctor. We therefore conclude that Income Support paid from and including 29.4.00 was paid otherwise than in respect of the accident in question.

   It is Mr Dunlop's contention to us today that [the injured person] was in gainful employment at a time when he represented to benefit awarding bodies that he was not; that the gainful employment involved undertaking work as a self-employed joiner and installer of UPVC conservatories, windows and doors, including building walls, fitting windows and doors etc. In support of this contention he relies on the taped conversation between a [K.. M…] and Mr Stuart private investigator on 13.8.98. He also refers to several comments in the General Practitioner records and a letter to his General Practitioner of 2.4.98 (…) from which he (Mr Dunlop) infers that [the injured person] was actually working.

   There are, from our viewpoint, a number of difficulties involved in an endorsement of Mr Dunlop's contentions, not least of which concerns the identity of the person conversing with Mr Stuart. Mr Stuart has confirmed that he telephoned the number provided by [the injured person] as his telephone number, that [the injured person] is separated with grown up children and lives alone. Mr Dunlop has produced a copy of CV and medical report of 23.11.98 in which [the injured person], the injured party is referred to as '[K...]' and has told us that the telephone call was not contested in the course of the civil proceedings. While all the above leads us to conclude that the person having the telephone conversation with Mr Stuart might have been [the injured person], the injured party, it would be equally possible to conclude that it might not – [injured person] might have a father or son of the same name who could be answering a phone at the number provided by him. Contrary to Mr Stuart's assertion in evidence that [the injured person] was "not married and unlikely to have children" we note that [the injured person] refers to his grown up children caring for him, in his self assessment Disability Living Allowance claim form. [We also note that, after the matter was referred to fraud investigations branch, no prosecution was brought and no attempt made to recover benefit]. We also found it difficult to agree with Mr Dunlop that the person having the telephone conversation with Mr Stuart indicated that he was personally building walls, replacing windows etc – the use of 'we' and 'our' in the conversation suggests to us that the business might have involved more than one person and that the person on the phone might not necessarily have been engaged in manual labour.

   The remarks in the General Practitioner records to which Mr Dunlop has referred us, are, we feel, not necessarily proof that [the injured person] was working while claiming benefit eg the entry in General Practitioner records of Feb 12 1999 "on feet 2-3 days needs day off" might refer to needing a day off his feet rather than a day off work. Similarly [the injured person's] own statement (…) that he has 'done no work paid or unpaid since 6.6.98' cannot be taken that he had done work prior to 6.6.98 without knowledge of the terms of reference for the statement. The other comments relied on by Mr Dunlop are in writing in the General Practitioner notes of 26.1.98 which (we think) states "says went back to work 1^st week for 3 days fracture talus June 1997 med 4 for 12 weeks." We take this to mean that [the injured person] unsuccessfully tried to return to work for 3 days and that his General Practitioner give him a further certificate (sick line) for 12 weeks. The remark by [the injured person] Consultant Orthopaedic Surgeon in the letter of 15.4.98 "at his work he often has to walk considerable distances and the ankle would tend to be sore and swell towards the end of the day", taken a historical context in a clinic could be an indicator why he would not presently return to work (ie because he would have to walk considerable distances).

   Taken both separately and together we find the evidence upon which Mr Dunlop relies in support of his contentions to be tenuous, open to varying interpretations and inconclusive.

   On the other hand the medical evidence relevant to the period before us (the report from [the injured person] of 26 November 2001 is considerably outside this period) provides a consistent and convincing picture of disability with regard to weight bearing on the right leg (difficulty walking, standing, using stairs, bending/kneeling etc). There is consistency not only among the departmental reports (for incapacity and Disability Living Allowance) but also with the General Practitioner records (letter 15.4.98 Antrim Fracture Clinic) and report from Mr Mawhinney 23.11.98 regarding the extent and type of disability suffered.

   In all the circumstances we prefer to accept the medical evidence regarding [the injured person's] condition and resulting entitlement to benefit, over what appears to us to be the speculative and inconclusive theories put forward on behalf of the compensators."

   The reference to [K… M…] herein is a reference to a person with the same surname as the injured person but a similar, though different, first name.

5. On 15 December 2003 the compensator's solicitor sought leave to appeal against the Tribunal's decision to the Commissioner. A legally qualified member of the Tribunal granted leave to appeal on 18 December 2003 and the point of law identified was "Whether the tribunal had mis-directed itself and/or failed to attach appropriate weight to evidence presented by compensator".

6. In the present appeal the first submission made on behalf of the compensator was that the Tribunal erred in law by failing to attach appropriate weight to evidence presented by the compensator. This evidence, according to Mr Phillips, ought to have inexorably led the Tribunal to the conclusion that the injured person was in gainful employment while in receipt of benefits. It consisted of a taped telephone conversation, a medical report from Mr Mawhinney, a typed curriculum vitae, comments made in the injured person's General Practitioner records and a letter to the General Practitioner.

7. Mr Phillips also submitted that the Tribunal failed to place sufficient weight upon the evidence available which suggested that the injured person had a telephone conversation with an investigator, when it came to the conclusion that this person might not have been the injured person. In addition, Mr Phillips submitted that there was evidence available which ought to have led the Tribunal to conclude that the injured person was working at the relevant time and erred in law in dealing with the issue whether the injured person was working or not. Furthermore he submitted that the Tribunal erred by attaching weight to the fact that no prosecution was brought and that no attempt was made to recover benefit either.

8. Mr Sloan submitted that the Tribunal was entitled to come to the conclusions to which it came in light of its careful assessment of the evidence. In particular he submitted that the Tribunal's conclusions, with regard to the weight it attributed to the evidence before it, were not unreasonable.

9. It is clear that the Tribunal was well aware of the possibility that the injured person had a conversation with the investigator, but, nevertheless, came to a different conclusion and gave coherent reasons for so doing. It is also clear that the Tribunal specifically dealt with the evidence, mainly from medical notes, which suggested that the injured person was working at the relevant time. The Tribunal came to the conclusion that he was not working and gave reasons for this conclusion. The Tribunal also specifically noted that there was no prosecution. However, this reference was made in brackets and is clearly not to be considered as a major part of the decision making process but is rather an incidental remark or mere surplusage. The primary reason for the Tribunal's conclusion in this case are those set out in the last paragraph of the statement of reasons (quoted herein at paragraph 4).

10. Mrs Commissioner Brown in R3/04(DLA), at paragraph 4, stated:

    "I should state at the outset that the weight to be given to any evidence is completely a matter for the Tribunal. The weight to be given to an item of evidence is a matter of fact. That means that I can disturb it only if that conclusion as to weight is one which no reasonable Tribunal could have reached."

11. This decision was affirmed on appeal by the Northern Ireland Court of Appeal where Kerr LCJ stated in Quinn v Department for Social Development, (reported as an appendix to R3/04(DLA)) stated at paragraph 29:

    "… it is of course to be remembered that a view of the facts reached by a tribunal can only be interfered with by the Court of Appeal in limited and well-defined circumstances.  Carswell LCJ described those circumstances in Chief Constable of the RUC v Sergeant A [2000] NI 261 at 273f as follows: -

    "A tribunal is entitled to draw its own inferences and reach its own conclusions, and however profoundly the appellate court may disagree with its view of the facts it will not upset its conclusions unless -

      

    (a) there is no or no sufficient evidence to found them, which may occur when the inference or conclusion is based not on any facts but on speculation by the tribunal (Fire Brigades Union v Fraser [1998] IRLR 697 at 699, per Lord Sutherland); or

    (b) the primary facts do not justify the inference or conclusion drawn but lead irresistibly to the opposite conclusion, so that the conclusion reached may be regarded as perverse: Edwards (Inspector of Taxes) v Bairstow [1956] AC 14, per Viscount Simonds at 29 and Lord Radcliffe at 36.""

12. While it is possible that I might have come to different conclusions if I had heard the relevant evidence at tribunal level, I cannot conclude that no reasonable tribunal could have reached the conclusions that the present Tribunal came to. Accordingly applying the tests set out by Mrs Commissioner Brown and by Carswell LCJ, as quoted by Kerr LCJ, I conclude that the conclusions in relation to the evidence made by the Tribunal were entirely sustainable. Therefore the compensator's appeal does not succeed on this ground.

13. Mr Phillips also submitted that if the relevant benefits ought not to have been paid, then those benefits cannot be recovered from the compensator. However, as I have concluded that the Tribunal was not in error in holding that the benefits were not wrongly paid, this submission is no longer relevant to the issues in the case.

14. Additionally, Mr Phillips submitted that it was relevant that there had been inordinate delay by the Social Security Agency in dealing with the fraud investigation and this delay has resulted in the injured person remaining on benefit for a long period past the time that he was no longer unfit for work. He submitted that the compensator's liability should end as soon as the injured person became capable of work.

15. However, in my view, the Tribunal was correct not to speculate when the injured person actually became capable of work. It is not in the interests of the State, to pay out benefits unnecessarily and for no good reason. Also such benefits should only be stopped through due process. This is what happened in this case and, while I appreciate the point being made by Mr Phillips, the Social Security Agency did not actually have the evidence in a form on which action could be taken, to stop the benefit until 28 April 2000 and that evidence was not available to the decision maker until some time after that date.

16. Arising out of this conclusion I must also deal with a further point that arises in this case — a point that was raised on behalf of the Department at the hearing and on the written submissions on appeal, namely, whether the Tribunal was entitled to conclude that benefit ought not to have been paid to the injured person after 28 April 2000. As a conclusion in favour of the Department on this issue is to the detriment of the appellant, the compensator, I gave an opportunity at the hearing to the parties to make additional written submissions and, in particular, to deal with the following proposition:

    whether is it correct that a compensator is held to be liable for reimbursement of benefits paid when an injured person has been determined to be capable of work on the basis of a medical report which pre-dates the date of the decision maker's decision to that effect, the delay being for bureaucratic reasons.

    The use of the word "bureaucratic" is not referring to that term in any pejorative sense but is a reference to the fact that inevitably various officials are involved in collating evidence, drawing up reports, transmitting information, preparing documents and setting out questions for answer by the eventual decision maker.

17. Mr Phillips made the following relevant and succinct submission:

    "The compensator's liability is backdated to the date of injury. Therefore, the (c)ompensator is liable for benefits for a period prior to the injured party being determined as incapable as work. If, for example, the injured party had deteriorated from the date of injury to the date of initial assessment, the Department still fix the (c)ompensator with the entirety of benefits back to the date of the subject accident.

    However, once the period of incapacity has expired and the injured party is assessed as capable of the work the Department still seek to recover benefits from the Respondent even after the Department has assessed the injured party as capable of work. This would seem to be double recovery on behalf of the Department.

    It is not taken into account that prior to the date upon which the injured party is assessed as capable of work, he would have been capable for work for a period of time. As a matter of commonsense the injured party is unlikely to have become capable of work on the very day upon which he is assessed as capable of work.

    Due to the administrative process the Department cannot assess injured parties on a daily basis and therefore there is obviously a lag between the injured party actually in reality becoming capable of work and when the Department assesses that person as capable of work.

    The Department have the advantage of recovering benefits up to the date at which the injured party is assessed as capable of work, despite that, in reality, the injured part [sic] has been receiving benefits for a period when those benefits are not in respect of the accident, but are caused by the normal administrative process of the injured party being periodically assessed. However, the Department are not content with having the benefit of this delay but in addition seek to make the (c)ompensator liable for benefits for a period even after the Department has recognise [sic] that the injured party is (and implicitly has been for some period prior to assessment) capable of work.

    Therefore, the compensator should not be liable for benefits from the date upon which the injured party is declared capable of work, as an administrative delay has already been built into the system and the (c)ompensator by paying up to the date of the final assessment, is already paying for benefits which are not in respect of the accident.

    There seems to be an inconsistency in the approach of the Department to claimants and the approach applied to (c)ompensators. Under the Social Security (NI) Order 1998 art 8(2):

    "Where at any time a claim for a relevant benefit is decided by the Department-

    (a) (a) The claim shall not be regarded as subsisting after that time:"

    This is utterly inconsistent with the approach applied to (c)ompensators under which they are required to continue to pay for a period after a claim for benefit has been decided by the Department in the (c)ompensator's favour. This may constitute a deprivation of property under Art1 Protocol 1 ECHR."

18. Mr Sloan made the following written submission:

    "In this case the Tribunal was obliged to consider, in accordance with article 13(1)(b) of the Social Security (Recovery of Benefits) (NI) Order 1997, whether benefits which had been paid otherwise than in respect of the accident in question had been brought into account.

    In unreported decision CCR/2365/2003, a GB Commissioner held that a Tribunal had

    "15. … correctly pointed out that entitlement to incapacity benefit does not depend on capacity or incapacity for work in a general sense, but, once the PCA is applied, on whether the claimant satisfies the particular requirements of that assessment."

    In light of this I would submit that equally income support on the basis of incapacity for work, following the application of the PCA, depends on whether the claimant satisfies the particular requirements of that assessment.

    The question of whether a claimant satisfies the requirements of the personal capability assessment is for the Department to decide. This assessment involves consideration of all the evidence provided in connection with the personal capability assessment, including the questionnaire, information from a claimant's doctor and the advice – in the form of the incapacity benefit medical report – from the examining medical officer. It is the Department that determines the scoring of the personal capability assessment, and therefore decides the question of a claimant's capacity for work. Therefore in this case the benefit payments for the period from the date of examination 29 April, to the date of the decision, 7 June 2000, were not made 'otherwise than in respect of the accident, injury or disease in question'.

    I would agree with Commissioner Brown's observations in NI Commissioner decision C2/02-03(CRS):

    18. … If the Department by the act of the insured is placed in a position of having to pay benefit due to an accident, the benefit may remain properly payable on foot of that accident for a reasonable period after the conditions for an award of the benefit are no longer satisfied. This period is to enable the administrative actions to terminate payment of the benefit to be carried out. They must, however, be carried out with reasonable expedition."

    Whilst the Commissioner's comments are obiter to the ratio of that decision, they nevertheless characterise precisely the situation faced by the Tribunal in this case. The injured persons claims for benefit resulted from injuries sustained in the accident and the Department continued to award benefit until it was decided that the injured person was no longer incapable of work. The fact that the information used to reach this decision was obtained at an earlier date does not, in my opinion, lead to the conclusion that benefit was incorrectly paid from the date the Department first obtained the information [in this case the date of the medical examination]. It is my submission therefore that benefits in this case remained correctly paid and consequently recoverable until 7 June 2000.

    As Commissioner Brown points out, the Department would correctly be expected to act with reasonable expedition to terminate entitlement where it was appropriate to do so. The Department however must equally be allowed time administratively to act upon information which it receives."

19. While Mr Phillips has highlighted a point that suggests that the compensator seems to be put in a position where it is required to make a payment for a period in which the injured person is no longer incapable of work, it seems to me that Mr Sloan has answered this argument by relying on Mrs Commissioner Brown's considered (even though obiter dicta) conclusion in C2/02-03(CRS) at paragraph 18, quoted by Mr Sloan and set out at paragraph 18 herein. The Commissioner in that case also pointed out that in the ordinary nature of things it takes a period of time for evidence, such as medical reports, to be acted on and, in addition, postulated from the facts of that case that a period of two months of payment after the relevant medical was not unreasonable. The Commissioner also emphasised that the medical report is only evidence and that some reasonable period must inevitably elapse before such evidence is acted on. In my view it must be remembered that the Department's decision is the decision of the decision maker, not the evidence of the doctor, no matter how compelling that evidence is and no matter how in any particular case it must inevitably result in the withdrawal of benefit. Nevertheless, Mrs Commissioner Brown did raise the prospect of benefit not being properly payable on foot of an accident, if it continued for a period longer than a reasonable period after the conditions for an award of benefit were no longer satisfied. However, this factor cannot be considered to be relevant in the present case as the date of the relevant examination was 28 April 2000 and, while the decision maker's decision was not made until 7 June 2000, it is not reasonably arguable that the resultant period of five and a half weeks is outside the period of "reasonable expedition". This period is well within the bounds of a reasonable period of deliberation by the adjudicating authority.

20. It seems to me that the relevant benefit awards were made as a result of injuries which the Tribunal concluded were consistent with those injuries suggested by the claimant following his accident and, in addition, the benefit paid for the period 29 April 2000 until 7 June 2000 was paid as a result of the injured person's claim for benefit. Accordingly I conclude, though with little enthusiasm, that the consequence of this is that the compensator must also make a payment covering this additional payment, even though it seems, in retrospect and with the benefit of hindsight, that the injured person was fit for work on 29 April 2000.

21. Mr Phillips mentioned that the Departmental approach "may constitute a deprivation of property under Article 1 Protocol 1 ECHR". This reference to the European Convention on Human Rights and, implicitly, to the Human Rights Act 1998, was not developed, perhaps because in deciding whether any deprivation is in the public interest, it is accepted that the Convention affords the State a considerable margin of appreciation in deciding what the public interest demands. In my view, the Convention and the Act do not override "the domestic" legislation, which is relatively clear, in this case.

22. Therefore, in my view, the Tribunal did err in law in coming to the conclusion that the income support payments, made between the date of the medical examination (28 April 2000) and the removal of benefit (7 June 2000), were paid otherwise than in respect of the accident in question.

23. Accordingly I allow this appeal, in so far as I agree with the submission made on behalf of the compensator that the Tribunal erred in law. However, the error in law is neither the error identified by the compensator's representatives and nor is it an error in law that assists the compensator. However, I am impelled in light of my findings set out in paragraph 17 herein to set aside the decision. As I can give the decision that I consider the Tribunal should have given without making fresh or further findings of fact, I modify the Tribunal's decision (in accordance with the powers set out in Article 15(8)(a) of the Social Security (Northern Ireland) Order 1998 and accordingly hold that the benefits listed in the certificate are recoverable up to and including 7 June 2000.

    J A H Martin QC

    Chief Commissioner

    26 April 2005