Upper Tribunal (Administrative Appeals Chamber)

Decision of the Upper Tribunal
(Administrative Appeals Chamber)

This decision is given under section 11 of the Tribunals, Courts and Enforcement Act 2007:

The decision of the First-tier Tribunal under reference 034/08/00713, held on 23 March 2009, did not involve the making of an error on a point of law.

Reasons for Decision

A.          History and background

1.           The claimant was injured in an accident at work on 25 November 2003; the injury was to his shoulder. He received statutory sick pay from 26 November 2003 to 11 June 2004 and incapacity benefit from 12 June 2004 to 4 December 2006. He also received income support for the inclusive period from 3 December 2005 to 4 December 2006 and disablement benefit from 10 March 2004. In addition, he received payments in respect of his loss of earnings under an insurance policy for the two years following the accident.

2.           He brought civil proceedings against his employer. By agreement, he received a total sum of £28,000. The court order did not split that amount between damages of pain and suffering and loss of earnings and other economic loss.

3.           The Secretary of State issued a certificate of recoverable benefit in respect of incapacity benefit, income support and disablement benefit in the amount of £26,658.65.

4.           The claimant exercised his right of appeal to the First-tier Tribunal. His solicitor took this point. Under the Social Security (Recovery of benefits) Act 1997, benefit is only recoverable from compensation for earnings lost during the relevant period: Schedule 2, column 1, paragraph 1. In this case, it was clear that none of the compensation related to loss of earnings during the inclusive period from 25 November 2003 to 25 November 2005, because during that period the claimant was paid under the insurance policy.

5.           The tribunal rejected that argument, but the judge gave permission to appeal saying that the issue ought to be considered by a Judge of the Upper Tribunal.

B.          Analysis

6.           The point made by the claimant’s solicitor is an entirely sensible one. However, it overlooks the issue of the tribunal’s jurisdiction and powers.

7.           An appeal against a certificate of recoverable benefits may only be made on the four grounds listed in section 11(1) of the Act:

‘11    Appeals against certificates of recoverable benefits.

(1)     An appeal against a certificate of recoverable benefits may be made on the ground-

(a)     that any amount, rate or period specified in the certificate is incorrect, or

(b)     that listed benefits which have been, or are likely to be, paid otherwise than in respect of the accident, injury or disease in question have been brought into account; or

(c)     that listed benefits which have not been, and are not likely to be, paid to the injured person during the relevant period have been brought into account, or

(d)     that the payment on the basis of which the certificate was issued is not a payment within section 1(1)(a).’

 The tribunal’s powers on an appeal are given in section 12 and reflect those limited grounds.

8.           I will take each paragraph of section 11(1) and see how it relates to the circumstances of this case.

·       Paragraph (a) – the claimant did not challenge any of the amounts, rates or periods in the certificate. There was no dispute that he had been paid the amount of the listed benefits for the periods stated.

·       Paragraph (b) – the claimant did not challenge that the benefits listed in the certificate were paid in respect of his accident or injury. There was no other basis on which they could be paid.

·       Paragraph (c) – the claimant did not argue that any benefits had been brought into account that had not been, or were not likely to be, paid during the relevant period. All the benefits listed had been paid.

·       Paragraph (d) – section 1(1)(a) covers ‘a payment (whether on his own behalf or not) to or in respect of any other person in consequence of any accident, injury or disease suffered by the other’. There was no dispute about that. The court order made clear that a payment had been made in consequence of the claimant’s accident or injury.

9.           As that analysis shows, the issue raised by the claimant’s solicitor was not a permissible ground of appeal under section 11. The real challenge raised by the appeal was that the compensation from which the benefits were deducted was not compensation for loss of earnings for the two years following the accident. That issue is not within section 11(1). In simple terms, the tribunal’s jurisdiction is limited to issues relating to the claimant’s entitlement to benefit and the relationship between that benefit and the accident or injury. The claimant’s appeal did not raise any issue relating to those matters.

C.          Disposal

10.        There was no issue over which the tribunal had jurisdiction. That is not quite how the Compensation Recovery Unit explained its position to the claimant’s solicitor. But it is to the same effect as far as the matters within my jurisdiction on this appeal are concerned.

11.        The only decision properly open to it in law was to dismiss the appeal. That is what it did. Accordingly, I dismiss the appeal to the Upper Tribunal.