UK Social Security and Child Support Commissioners' Decisions

[1997] UKSSCSC CS_310_1993 (18 June 1997)


 


MJG/SH/5

Commissioner's File: CS/310/1993

SOCIAL SECURITY ADMINISTRATION ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT 1992

APPEAL FROM DECISION OF SOCIAL SECURITY APPEAL TRIBUNAL ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. I dismiss the claimant's appeal against the decision of the social security appeal tribunal dated 7 April 1993 as that decision is not erroneous in law: Social Security Administration Act 1992, section 23.
2. This is an appeal to the Commissioner by the claimant, a man born on 4 August 1967. The appeal is against the unanimous decision of a social security appeal tribunal dated 7 April 1993 which for detailed reasons given in that decision dismissed the claimant's appeal from a decision of the adjudication officer issued on 30 August 1992 as follows,

"[The claimant] is disqualified for receiving sickness benefit from and including 2.9.91. This is because his absence from Great Britain is not temporary. (Social Security Contributions and Benefits Act 1992 section 113(1)(a) and the Social Security (Persons Abroad) Regulations [1975 - S.I. 1975 No 563 (as amended)], regulation 2(1))."

3. On 16 December 1991, the claimant claimed sickness benefit on the appropriate form stating that he had had an accident at work on 22 August 1991 when he was working on a farm in the United Kingdom. Unfortunately, it appears that a tractor ran over his right foot and caused him considerable injuries. No point appears to have been taken about the lateness of the claim. In view of the facts that, following the accident, the claimant returned to his native country, the Czech Republic, and was not sure either about the extent of his injuries or about the relevant procedures for claiming sickness benefit in the United Kingdom, I would confirm, if it were necessary, that "good cause" for the delay was shown.
4. The sequence of events was that the claimant was employed on the farm from 13 July 1991 to 30 August 1991. On 22 August 1991 he had the accident at work which I have described and became incapable of work from that date. His employer paid him statutory sick pay up to 30 August 1991. On 1 September 1991 he left Great Britain to return permanently to the Czech Republic. He has stated on the relevant form that his going to the Czech Republic was not "temporary" and clearly in the circumstances of this case it was not "temporary". For that reason, the claimant is unable to avail himself of the provisions of regulation 2(1) of the above-cited Persons Abroad Regulations 1975, which apply only when the absence from Great Britain is "temporary". The adjudication officer now concerned, in a number of detailed written submissions, has analysed the various qualifying conditions in regulation 2(1) but I do not propose to go into them as the claimant fails at the outset in relation to regulation 2(1), because his absence from Great Britain was certainly not "temporary".
5. In fact, the claimant has not relied on regulation 2 of the Persons Abroad Regulations or indeed on provisions of United Kingdom internal legislation at all. He has relied on two International Documents to assist him. I should say at this point that his submissions relating to them have been detailed and helpful but I have come to the conclusion that the adjudication officer's equally detailed submissions are correct and that neither of these Documents assist the claimant.
6. The first of them is Convention No. 19, The Equality of Treatment (Accident Compensation) Convention 1925, described in its title as "Concerning equality of treatment for national and foreign workers as regards workmens' compensation for accidents". Enquiries by the adjudication officer now concerned have established that the Convention is still in force. It was ratified by the United Kingdom on 6 October 1926 and by Czechoslovakia on 8 February 1927.
7. That Convention in fact relates, as it says, to "Workmens' compensation for accidents". However, it should be borne in mind in this case that the claimant did suffer an industrial accident and that one route of entitlement to sickness benefit is (irrespective of contributions) that there has been incapacity following an industrial accident. (See Social Security Contributions and Benefits Act 1992, section 102). Consequently, having perused the Convention, I do not consider it necessarily conclusive that the claim here is for sickness benefit rather than disablement benefit for an industrial accident (which in fact the claimant is receiving - see paragraphs 13 and 14 below).
8. However, following detailed enquiries, the adjudication officer now concerned has submitted as to the 1925 Convention,

"When a Member State ratifies an [International Labour Organisation - "ILO"] Convention that Convention is not directly incorporated in the domestic law of that country. However, that Member State is under a duty to take such measures as are necessary to implement the provisions of the Convention. It is left to that State to decide exactly how this is done. This is the effect of Article 19 of the ILO constitution. I also submit that the Convention does not give an individual any legal right to enforce the provisions of a Convention in the courts of a Member State. The Member State is then required to report to the ILO at given intervals on the progress made on implementing the Convention. The adjudication officer has been told that the UK made a report to the ILO on the Convention at issue in this appeal in 1991. A complaint that the Member State has not complied with the provision of the Convention must be addressed to the ILO. The ILO may then refer the matter to the International Court of Justice (Article 32 of the ILO Convention). As a result, it is my submission that complaints that a Member State has not complied with the Convention can only be dealt with by the ILO. In view of [the above] it remains the submission of the adjudication officer that the claimant cannot rely directly upon the provisions of ILO Convention No. 19 on Equality of Treatment (Accident Compensation) of 1925. Accordingly I respectfully invite the Commissioner to dismiss the appeal as far as it concerns the ILO Convention. In the earlier submission of the adjudication officer it was stated that the adjudication officer is not aware that the UK had adopted any special arrangements. As a result it was submitted that the claimant could not rely directly on the provisions of the Convention. The adjudication officer now withdraws from that submission. It is now the submission of the adjudication officer that this provision refers to the practical arrangements which may need to be made to deal with payment of benefit outside of a Member State's territory. I submit that the absence of special arrangements has no effect on whether the claimant can rely directly on the Convention." (Paragraphs 2-7 of the adjudication officer's submission of 31 October 1994).

9. I accept of the adjudication officer's submissions. Even if the 1925 Convention covered the payment of sickness benefit in relation to an industrial accident (which is debatable) there is still no right given to an individual by the Convention to enforce the provisions against the State either in the courts of the country in question nor, for the same reason, under the statutory system of adjudication (including adjudication by the Commissioner) now embodied in the Social Security Administration Act 1992. Any complaint of non-compliance with the Convention has to be addressed to the ILO. It follows that the claimant cannot adduce this Convention in support of his claim to sickness benefit.
10. The other International Document on which the claimant relies is more recent. This document is an Agreement between the European Community and the Czech Republic which was fully ratified on 19 December 1994 and came into force on 1 February 1995. I have received detailed submissions as to whether or not that agreement could permit 'export' of sickness benefit or its equivalent. It is pointed out by the adjudication officer that sickness benefit is a short-term benefit, unlike "any pensions or annuities in respect of .. industrial accident or occupational disease, or of invalidity resulting therefrom .." (Article 39.1 of the Agreement). Referring to Article 39.1 the adjudication officer submits that it cannot have been intended that a Czech national should be in a more favourable position than an EC national, since as between the Member States of the European Community short-term sickness benefit is not exportable. That may well be so but of course if the Agreement confers the right to sickness benefit upon the claimant, whether anomalous or not, he is entitled to it. However, the adjudication officer refers also to the phrase in Article 39.1 of the Agreement that makes the co-ordination of the social security systems of the Czech Republic and the European Community "subject to the conditions and modalities applicable to each Member State". The adjudication officer submits that that allows Member States to impose conditions on the application of Article 39.1. and that in particular it allows the UK to impose the condition that short-term benefits can only be paid for temporary absences from the UK. I agree that this would appear to be so. However, I also accept the submission of the adjudication officer (dated 31 August 1996) that the Agreement does not assist the claimant because it was not in force at the date when he left Great Britain on 1 September 1991. It did not come into force until 1 February 1995. Moreover, there is now relevant a decision of the European Court, in relation to a similar Agreement by the European Community with Turkey. The case in question (referred to in the adjudication officer's submission of 4 November 1996) was Case No. 277/94, named Tafflan-Met. It does not as yet appear to have been reported. The second question referred to the European Court of Justice was whether Articles 12 and 13 of that Agreement had direct effect in the territory of the Member States and consequently whether individuals could rely on them before the national Courts. The European Court decided that,

"So long as the supplementary measures essential for implementing decision 3/80 [the decision of the Association Council on the application of social security schemes of the EC and Turkey] have not been adopted by the Council, Articles 12 and 13 of that decision do not have direct effect in the territory of the Member States and are therefore not such as to entitle individuals to rely on them before the national Courts."

11. In paragraphs 5 to 7 of his submission of 4 November 1996 the adjudication officer, referring to this decision, then submits,

"The same principles apply to [the present appeal before the Commissioner]. Article 40(1) of the EC - Czech Agreement states that, 'the Association Council shall by decision adopt the appropriate measures to implement the objective set out in Article 39.' Article 40(2) of the Agreement sets out the requirements that detailed rules are to be adopted in order that the provisions referred to in Article 40(1) are given effect. No such measures, as outlined .. above 'for implementing the Agreement have been taken. As a result I submit that the EC - Czech Agreement does not have direct effect and cannot be relied upon by a person until implementing procedures have been adopted. In this case I submit that the claimant cannot rely on the provisions of the EC - Czech Agreement to avoid disqualification for being absent from Great Britain."

12. A copy of that submission was supplied to the claimant and on 21 November 1996 he responded (on form OSSC3) making no comments. I take it therefore he does not dissent from the adjudication officer's statement that no measures have been taken for implementing the EC Czech Agreement. Even if such measures were taken, however, I should emphasise that, for the reasons cited earlier in this decision, it would have appear that the claimant cannot claim the benefit of the EC - Czech Agreement (i) because it was not in force at the time of his claim for sickness benefit and (ii) because it is doubtful whether in fact the Agreement can be interpreted to cover short-term sickness benefit as distinct from long-term invalidity benefit.
13. I should add that the appeal was the subject of an oral hearing before me on 6 March 1997, that hearing having been requested (though this was a claimant's appeal) by the adjudication officer. At that hearing, as well as the matters to which I have referred in this decision, I issued a Direction asking the adjudication officer to make enquiries about the "Industrial injuries benefit claim" to which some of the earlier correspondence refers. In paragraphs 2 and 3 of my Direction I said as follows,

"I will assume .. that the Secretary of State has accepted the Sickness Benefit Claim of 16 December 1991 as also a claim for disablement benefit for the alleged accident at work, to the claimant, on 22 August 1991, unless I am informed otherwise. I request the adjudication officer to provide the Commissioner .. with (a) information [as to the industrial injuries benefit claim] (b) a submission as to the application to this case of regulation 9(3) of the Social Security (Persons Abroad) Regulations 1975 (basic disablement benefit payable even though beneficiary absent abroad) and on any relevant matters."

14. In response to that Direction, I received (on 26 March 1997) a submission by the adjudication officer as follows,

"In respect of the claim for Industrial Injuries, I have been advised by Overseas Branch that the claimant was assessed as being 20% disabled and awarded Industrial Injuries Disablement Benefit, initially from 5.12.91 to 4.12.93; then from 5.12.93 for life. The award of this benefit is not affected by the claimant's absence from Great Britain. Under regulation 9(3) of the Social Security (Persons Abroad) Regulations 1975, the claimant is not disqualified for receiving disablement benefit by reason of being absent from Great Britain."

15. The net effect of all this is that the claimant does appear at least to be receiving some compensation from the United Kingdom in respect of his industrial accident here but my decision is that he is not able to claim sickness benefit. In correspondence, the claimant has stated that as the accident had happened in the UK, he was not able to obtain the equivalent of sickness benefit under the social security scheme of the Czech Republic. I do not know whether that is necessarily so or not, but I have no power to adjudicate on issues arising in the Czech Republic. It should be noted that there is no Reciprocal Agreement on social security matters between the United Kingdom and the Czech Republic.

(Signed) M J GOODMAN

Commissioner

(Date) 18 June 1997