UK Social Security and Child Support Commissioners' Decisions

R(CR) 1/01


Mr. M. Rowland CCR/2127/1999

18.2.00

Recovery from compensation payments - injury said to be due partly to a pre-existing cause - whether benefit paid "in respect of" the relevant accident throughout the relevant period

The claimant suffered an accident on 13 September 1991. In April 1996 his claim for compensation was settled at £50,000. In the meantime the Secretary of State had issued, under Part IV of the Social Security Administration Act 1992, a certificate of total benefit in the sum of £30,926.10, which was subsequently revised on review to the sum of £26,968.32 on the basis that benefit paid after 12 October 1995 was not attributable to the relevant accident. The claimant appealed to a social security appeal tribunal and, because the claimant blamed his disablement on pre-existing psoriatic spondylosis, the tribunal referred that question to a medical appeal tribunal. The medical appeal tribunal decided that the claimant had been suffering from an injury to his neck until "13 weeks from 8 January 1996" (a decision formulated on the basis of a Med 3 which advised the claimant not to work during that period due to "neck injury") but made no finding that the relevant injury was the cause of the neck injury throughout that period or at all. The reconvened social security appeal tribunal held on 7 December 1998 had before it a letter from the Benefits Agency dated 13 November 1998 informing the claimant that an adjudicating medical authority had decided that the relevant accident had caused a loss of faculty from 27 December 1991 to 26 December 1992 and there was evidence before the tribunal that the adjudicating medical authority had considered that symptoms after 26 December 1992 were due to pre-existing conditions. The social security appeal tribunal disallowed the claimant's appeal on the basis that the claimant was suffering from the effects of the injury until the date his claim was settled. The claimant appealed to the Commissioner.

Held, allowing the appeal, that:

if benefit was to be recovered from a compensation payment made in respect of a relevant accident the relevant accident must have been an effective cause of the injury giving rise to the payment of benefit throughout the period in which recovery was sought, because otherwise it could not be said that the benefit was paid "in respect of" the accident throughout the period;

whilst it was not in dispute that the relevant accident caused or contributed to a neck injury, there was a question whether it caused the neck injury that was still subsisting in early 1996 or whether it was still contributing to that injury;

the tribunal had erred because that question had not been determined by either the medical appeal tribunal or the social security appeal tribunal or alternatively no reasons had been given for the determination.

The Commissioner referred the case for determination by a tribunal constituted under the Social Security Act 1998.

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an appeal brought by the victim of an industrial accident from a decision of the South Tyne SSAT dated 7 December 1998, whereby they dismissed his appeal against a revised certificate of total benefit, issued by the Secretary of State under Part IV of the Social Security Administration Act 1992, in the sum of £26,968.32.
2. I granted leave to appeal following an oral hearing at which I was greatly assisted by the appellant, who appeared in person, and by Ms. Angela Main Thompson, of the Office of the Solicitor to the Departments of Social Security and Health, who appeared for the Secretary of State. I asked for further submissions on the appeal which I have now received. The appellant asks for a further oral hearing but I am satisfied that I can properly determine this appeal without such a hearing. I intend to determine the question of law arising on this appeal in the appellant's favour and he will have the opportunity of addressing arguments on questions of fact to the appeal tribunal to whom I refer the case.
3. Part IV of the Social Security Administration Act 1992, which has since been replaced by the Social Security (Recovery of Benefits) Act 1997, provided for the recovery by the Secretary of State of social security benefits paid to the victims of accidents, injuries and diseases in cases where the victims were able to recover damages from those who had caused the accidents, injuries or diseases. Section 82 provided that no compensation payment was to be made until the Secretary of State had issued a certificate of total benefit stating the amount recoverable, which was the amount of benefits paid to the victim during the relevant period "in respect of that accident injury or disease". Section 98 provided for appeals against certificates of total benefit. If a medical question arose, the question was to be referred to a medical appeal tribunal. Any other question was to be referred to a SSAT. Subsection (12) provided:

"In this section, 'the medical questions' means-

(a) any question whether, as the result of a particular occurrence, the victim suffered an injury, sickness or disease;

(b) any question as to the period for which the victim suffered any injury, sickness or disease."

The split of jurisdiction between SSATs and medical appeal tribunals was highly unsatisfactory, as the present case illustrates, and was removed by the 1997 Act even before the tribunals were unified under the Social Security Act 1998.

4. The appellant suffered an industrial accident on 13 September 1991. His claim for compensation was settled in April 1996 when he accepted £50,000 paid into court. However, a certificate of total benefit in the sum of £30,926.10 had been issued and the compensator was obliged to pay that sum to the Compensation Recovery Unit out of the £50,000. The appellant appealed against the certificate. The Secretary of State reviewed the certificate and reduced the amount of recoverable benefits to £26,968.32, the balance being returned to the appellant. This was on the basis that incapacity benefit paid after 12 October 1995 was not attributable to the relevant accident. The appellant was still not satisfied and so the matter came before a SSAT on 19 February 1998. That tribunal considered that a "medical question" arose, because the appellant blamed his disablement on pre-existing psoriatic spondylosis, and so they directed that the question be put before a medical appeal tribunal. On 20 April 1998, the medical appeal tribunal decided that the appellant had been suffering from an injury to his neck until "13 weeks after the 8 January 1996", which was 8 April 1996 (only three days before the compensation claim was settled). It is apparent that they took that view because there was before them a Med 3 in which the appellant's doctor advised him not to work for 13 weeks from 8 January 1996 due to "neck injury". They made no specific finding that the relevant accident was a cause of the neck injury throughout the period to 8 April 1996 or, indeed, at all, because they were not asked to do so.
5. On 7 December 1998, the case came back before the South Tyne SSAT. Among the evidence before the tribunal was a letter from the Benefits Agency dated 13 November 1998 informing the appellant that an adjudicating medical authority who had examined him on 5 November 1998 had decided that the accident of 13 September 1991 (in respect of which the compensation had been paid) caused a loss of faculty giving rise to disablement assessed at 10 per cent. from 27 December 1991 to 26 December 1992. That carried the implication that the adjudicating medical authority regarded the disablement arising out of the relevant accident as being negligible from 27 December 1992 onwards. I am not sure that the tribunal had before them the actual decision of the adjudicating medical authority but, in any event, the appellant referred to the Benefits Agency's letter at the hearing and told the tribunal that his assessment had been reduced by 10 per cent. due to the effects of a previous road traffic accident and an underlying condition. The decision of the adjudicating medical authority shows that to be correct. A gross assessment of 20 per cent. from 27 December 1991 to 26 December 1992 had been subject to a 10 per cent. offset for "pre-existing neck problems" and the adjudicating medical authority had added:

"The symptoms after 26 December 1992 are due to the pre-existing neck injury and psoriatic [illegible]."

6. In their statement of material facts and reasons for their decision, the tribunal set out the history of the case, noting that it was not in dispute that "the appellant suffers from a condition 'psoriatic spondylitis' which is a constitutional condition and it may or may not have been aggravated by the accident". They then said:

"At a social security appeal tribunal hearing on 19 February 1998 a medical question was raised by the appellant and this question was therefore referred to a medical appeal tribunal. The medical appeal tribunal took place on 20 April 1998 and the tribunal's decision was that the appellant suffered from the date of the accident 'to 13 weeks from 8 January 1996'. The appeal tribunal today took into account the medical appeal tribunal's decision in considering matters.

The social security appeal tribunal today also took into account the bundle of documents produced by the appellant, numbers 147-161, and in particular noted the letter from the Benefits Agency dated 13 November 1998. The tribunal also took into account the oral evidence but on the balance of probabilities preferred the decision of the appeal tribunal in April 1998 that the effects of the injury would last for 13 weeks following 8 January 1996. The tribunal also took into account some of the medical certificates which were supplied by the appellant's GP which in 1994/95 stated the cause of incapacity to be 'neck injury' on most occasions.

Therefore given the fact that the appellant was suffering from the effects of the injury until the date his claim was settled the tribunal then looked at the relevant legislation in the Social Security Administration Act 1992. Under the Compensation Recovery Scheme the compensator must deduct from the compensation payment an amount equal to the gross amount of any relevant benefits paid during the relevant period in respect of the accident, injury or disease as certified by the Secretary of State (sections 81, section 1 and section 82, subsection 1, subsection (a)). The amount deducted must then be paid over to the Secretary of State by the compensator. Given the fact that the appellant was suffering from an accident, injury or disease as a result of the incident for which he claimed compensation then it follows that the compensator must deduct from the compensation payment an amount equal to the gross amount of any relevant benefits paid during the said period.

The tribunal therefore confirm that the Secretary of State was correct in recovering the sum of £26,968.32 from the compensation due to the appellant in accordance with the relevant legislation. The appeal is therefore dismissed."

7. It seems to me that the penultimate paragraph of that decision shows that the tribunal proceeded on the assumption that the neck injury was caused by the relevant accident. However, the tribunal have overlooked the fact that, if benefit is to be recovered from a compensation payment made in respect of a relevant accident, the relevant accident must have been an effective cause of the injury giving rise to the payment of benefit throughout the period in respect of which the Secretary of State seeks to recover benefit. Otherwise, it cannot be said that the benefit was paid "in respect of" the accident throughout the period. It is not in dispute that the relevant accident caused, or contributed to, a neck injury but it was in dispute that it caused the neck injury that was still subsisting in early 1996 or was still contributing to that injury. If the tribunal were acting in the belief that the MAT sitting on 20 April 1998 had already determined that issue, they were wrong. The suggestion of there being two neck injuries, or two causes of one injury, was not raised before the MAT and they did not consider it.
8. Ms. Main Thompson submits that the SSAT could not themselves have determined the question whether the relevant accident was an effective cause of neck injury throughout the period in respect of which recovery of benefits was sought because that was a "medical question" within section 98(12) of the 1992 Act. She submits that, if the question had not been determined by the MAT on 20 April 1998, the SSAT should have referred it to another MAT. In my view, it is arguable that it was not a "medical question" but I need not consider the point because it is of no importance for the further determination of this case (given regulation 12(3E) of the Social Security (Recovery of Benefits) Regulations 1997) and the SSAT erred in either event. If Ms. Main Thompson is right, the SSAT erred in failing to refer the question to another MAT. If she is wrong, the SSAT did have jurisdiction to determine the issue themselves but erred in failing to do so or, if the assumption they made is to be regarded as a determination, in failing to give reasons for that determination. Regulation 23 of the Social Security (Adjudication) Regulations 1995, which made provision for the giving of reasons by SSAT, did not apply to determinations made under section 98 of the 1992 Act, but section 10(1) of the Tribunals and Inquiries Act 1992 imposed a duty on the tribunal to give a statement of reasons if a request for one was made on or before the giving or notification of the decision. In this case, the chairman announced in the decision notice that a full statement of reasons would be given so that, if the announcement was not made in response to a request, it was unnecessary for a request to be made. Once the announcement had been made, there was clearly a duty to provide reasons and where there is such a duty "proper, adequate reasons must be given ... which deal with the substantial points that have been raised" (In re Poyser and Mills' Arbitration [1964] 2 QB 467, 478, per Megaw J). The appellant had placed much weight on the adjudicating medical authority's decision. It was necessary for the tribunal to explain why they considered that their conclusion was consistent with the adjudicating medical authority's conclusion or why they had reached an inconsistent conclusion. That they failed to do.
9. Ms. Main Thompson accepted my analysis in CCR/5336/1995 where I said:

"9. In the present case, the question for the tribunal was whether invalidity benefit paid from about May 1991 was paid "otherwise than in consequence of the accident". It is clear that it was not necessary that the relevant accident be the sole cause of the payment of benefit (see Hassall v. Secretary of State for Social Security [1995] 1 WLR 812 [now to be reported also as R(CR) 1/95]. However, it was necessary that the relevant accident be an effective cause of the payment of benefit. Invalidity benefit is not payable merely because a claimant has a reduced capacity for work. It is payable only if a claimant is incapable of any work which it would be reasonable to expect him to do. Invalidity benefit is therefore recoverable under Part IV of the Social Security Administration Act 1992 only from a claimant who is incapable of any such work in consequence of the relevant accident. The effect of Hassall is that, if a claimant is rendered permanently incapable of work by an accident and then suffers from an unrelated illness which would have rendered him incapable of work even if the accident had not occurred, the claimant is still to be regarded as incapable of work in consequence of the accident. Similarly, a claimant is to be regarded as incapable of work in consequence of an accident if neither the accident not an unrelated illness would individually have rendered him incapable of work but where their combined effects does so. However, where, in consequence of an accident, a claimant suffers disablement which is not itself incapacitating and then suffers from an unrelated illness which would, by itself, have rendered him incapable of work, it cannot be said that the relevant accident is an effective cause of the incapacity. In such a case, the claimant's incapacity is solely due to the unrelated illness."

10. The present case is also concerned with benefits paid in respect of incapacity for work, but the circumstances are slightly different from those in CCR/5336/1995. Ms. Main Thompson submitted:

"In the circumstances of this case the applicant suffered an injury to his neck as a result of a road traffic accident. That accident did not render him incapable of work since he suffered his later accident (the relevant accident) in the course of his employment. On the Commissioner's analysis in CCR/5336/1995 the relevant accident was an effective cause of the payment of benefit."

However, the claimant does not dispute that the relevant accident was an effective cause of the payment of benefit for some time after it occurred. The issue is whether it remained an effective cause of the payment of benefit for the rest of the relevant period which stretched for some four and a half years in all. I do not consider that Ms. Main Thompson's point is a complete answer to the appellant's argument based on the adjudicating medical authority's approach. It is not inconceivable that by, say, December 1992 the effects of the relevant accident had disappeared, as the adjudicating medical authority had found, and that the effects of the previous accident and the underlying constitutional condition had worsened since the relevant accident so as to become incapacitating even though they had not prevented the appellant from working at the time of the relevant accident. If that is so, the relevant accident would have ceased to be an effective cause of the appellant's incapacity for work. Even if the pre-existing conditions had not worsened but they had become again the only cause of the disablement from which the appellant was suffering (because the effects of the accident had worn off), they must be presumed to be the only cause of the payment of invalidity benefit and incapacity benefit. There is no provision allowing the Secretary of State to recover the amount of unemployment benefit or jobseeker's allowance that would have been paid to a person in consequence of the relevant accident had he or she not been found to be incapable of work due to another cause and so been awarded invalidity benefit or incapacity benefit. I am therefore satisfied that the appellant has an arguable case on the facts. I am also satisfied that it is more appropriate that that case should be considered by an appeal tribunal having a medical practitioner among its members than that I should consider it.

11. There is one other minor point which the SSAT did not address. The compensator's calculation showed statutory sick pay had been paid for 26 weeks whereas it is usually payable for 28 weeks before invalidity benefit (now incapacity benefit) becomes payable. The appellant argued that that showed that the compensator accepted that the relevant accident ceased to be a cause of the appellant's incapacity after 26 weeks. I doubt that is a realistic argument in this case but there does arise an issue as to the number of weeks for which statutory sick pay was actually paid to the appellant after the accident. The certificate of total benefit included nearly 28 weeks of statutory sick pay. It seems probable that the compensator's calculation was wrong and that the correct figure appears in the certificate of total benefit and, indeed, that may be the approach most favourable to the appellant because, if the certificate shows too much statutory sick pay, it almost certainly shows too little invalidity benefit which was paid at a much greater rate. The appellant may wish to accept that the certificate of total benefit is correct as to the amount of statutory sick pay paid to him after the accident but, if he does not, the next tribunal should deal with this issue.
12. I allow this appeal. I set aside the decision of the South Tyne SSAT dated 7 December 1998 and I refer the case to an appeal tribunal for determination. In accordance with regulation 12(3E) and (3I) of the Social Security (Recovery of Benefits) Regulations 1987, as substituted by Schedule 17 to the Social Security Act 1998 (Commencement No. 12 and Consequential and Transitional Provisions) Order 1999, the tribunal shall consist of a legally qualified panel member and a medically qualified panel member (neither of whom shall have been members of the SSAT sitting on 7 December 1998) and shall determine all remaining issues arising on the appellant's challenge to the certificate of total benefit. The tribunal should accept the finding of the medical appeal tribunal dated 20 April 1998 to the effect that the appellant was suffering from a neck injury up to April 1996 and will be entitled, but not bound, to find that he was still suffering from a neck injury thereafter. The principal questions they must determine are for how long that neck injury remained a contributory factor in the claimant's incapacity for work and for how much of that period the accident of 13 September 1991 was a cause of that injury. The Secretary of State should ensure that the appeal tribunal have a complete set of papers (I note that some documents that were before the SSAT on 19 February 1998 and the medical appeal tribunal on 20 April 1998 were not before the SSAT on 7 December 1998) and such further evidence (such as more recent Med 3s and also the papers that were before the adjudicating medical authority on 5 November 1998 and that authority's decision) as may appear relevant.

Date: 18 February 2000 (signed) Mr. M. Rowland

Commissioner