Upper Tribunal (Administrative Appeals Chamber)

MA v Secretary of State for Work and Pensions and Litigation Authority (CR) (Compensation recovery : cause of payment of benefits) [2015] UKUT 349 (AAC) (22 June 2015)

DECISION OF THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

 

The injured person's appeal to the Upper Tribunal is allowed. The decision of the Oxford First-tier Tribunal sitting on 20 June 2013 involved an error on a point of law and is set aside. It is appropriate for the Upper Tribunal to re-make the decision on the appeal that was before the First-tier Tribunal, having made further findings of fact (Tribunals, Courts and Enforcement Act 2007, section 12(2)(b)(ii) and (4)). The decision as re-made is that the contents of the certificate under appeal are not confirmed and that the Secretary of State for Work and Pensions when issuing the fresh certificate required under section 12(5) of the Social Security (Recovery of Benefits) Act 1997 is to make the necessary variations to exclude any industrial injuries disablement benefit paid to the injured person after 10 January 2010 (1997 Act, section 12(4)(b)).

 

 

REASONS FOR DECISION

 

1. This an appeal by the injured person against the decision of the First-tier Tribunal that confirmed a certificate of recoverable benefits under the Social Security (Recovery of Benefits Act 1997 (the 1997 Act) issued by the Secretary of State on 23 September 2011 in the amount of £9,689.28. When I gave her permission to appeal I described the case as difficult and complicated. The Secretary of State, in the submission dated 21 November 2014, does not support the appeal. Browne Jacobson LLP, the solicitors for the NHS Litigation Authority (the compensator) made submissions dated 24 March 2015 and 30 March 2015 in essence submitting that the compensator had acted properly in deducting the amount specified in the certificate from the compensation paid to the injured person. In the reply on behalf of the injured person dated 9 May 2015 from her current representative an oral hearing was requested so that they “could explain in detail the unfair manner in which [she] has been dealt with in spite of her frail health”. Neither respondent had requested a hearing.

 

2. I have taken the injured person’s request into account when concluding that the Upper Tribunal can properly make a decision without an oral hearing. Since I have concluded on the papers that the decision of the tribunal of 20 June 2013 must be set aside for material error of law, there is no need for an oral hearing on that issue. However, I have also decided that the Upper Tribunal should substitute a decision on the injured person’s appeal against the certificate rather than send the case back to another tribunal. In doing so I bore particularly in mind the lapse of time since the issue of the certificate and the decision of the First-tier Tribunal, as well as the technical nature of the legal issues involved. I also bore in mind the suggestion of the Secretary of State’s representative of 21 November 2014 that if, contrary to her submissions, the Upper Tribunal concluded that the tribunal of 20 June 2013 had made a material error of law, a decision should be substituted instead of there being a remission to a new First-tier Tribunal. The Secretary of State is thus content for the case to be concluded on the current evidence and submissions. I concluded that those factors outweighed the benefits of the final decision being given by a First-tier Tribunal with a member who is doctor. The decision re-made by the Upper Tribunal is more favourable to the injured person than that of the tribunal of 20 June 2013, but does not give her all that she was asking for. In those circumstances I considered carefully whether there should be an oral hearing in the Upper Tribunal before a final decision was given, to give the injured person the opportunity to argue for a more favourable result. However, the reason given for the oral hearing request shows that the injured person was still relying on general arguments of fairness that went outside the narrow issue that was within the scope of the First-tier Tribunal’s jurisdiction (see the extracts below from the observations on the giving of permission to appeal) and I do not think that her representatives have engaged with the legal issues involved. I concluded that the holding of an oral hearing would not put the Upper Tribunal in any better position to give a final decision and would merely add several months to the process.

 

The background

3. On 8 July 2006, the injured person, who had then just turned 64 and was working as a nurse (a Senior Sister), suffered an accident at work in the form of tripping on a cable and injuring her left wrist in falling on her outstretched hand. She made a claim for industrial injuries disablement benefit on 28 February 2007. It was accepted that there hade been an industrial accident and she was awarded benefit first on the basis of a provisional assessment of disablement at 30% for the period from 22 November 2006 to 8 May 2008 and then on the basis of a final assessment of 30% from 9 May 2008 for life. At that point no question had been raised of any offset for the effects of any pre-existing condition.

 

4. The injured person also made a civil claim for damages against the hospital trust in which liability was accepted subject to a 15% reduction for contributory negligence. The updated schedule of loss dated 18 April 2011 included in the specification of special damages claimed £4,319.09 (plus interest) for loss of earnings down to the injured person’s 65^th birthday (6 May 2007) and £92,680.47 (plus interest) for loss of earnings after that date down to 8 January 2011 on the basis that she would, if it were not for the accident, have been able to continue working beyond her 65th birthday. It was stated that the loss of earnings claim was limited to four and a half years from the date of the accident on the basis of the opinion of Mr Hashemi (see the following paragraph) that the injured person had suffered an acceleration by three to six years of symptoms that she would have had in the absence of the accident and the midway point was therefore applied. There were also claims for cost of care and travel costs. General damages (eg for pain and suffering and loss of amenity) were not quantified. The claim was settled on terms embodied in the consent order dated 4 May 2011 in the Central London County Court giving judgment for the injured person in the sum of £21,250.00, stated to be “net of the agreed deduction of 15% for contributory negligence, inclusive of interest and gross of any CRU benefit repayable”.

 

5. Two medical experts had produced reports, apparently based on what medical records they had. It is not clear whether either had examined the injured person. One was Professor Shearer, an Emeritus Professor of Orthopaedic Surgery, and the other was Mr Hashemi, a Consultant in Accident and Emergency Medicine and Consultant Hand Surgeon. Following earlier reports (which I shall not detail here because they did not form part of the evidence before the tribunal of 20 June 2013) and two telephone conversations, they produced a joint statement on 11 April 2011. That statement included the following after noting that Professor Shearer had seen some but not all of the x-rays and scans in the case and x-ray reports, but that Mr Hashemi had only seen x-ray reports:

 

“We agree that there is good evidence that this lady had previous Kienbock’s disease of the left lunate and had suffered previously from symptoms in the left wrist. We also agree that she has pre-existing osteoarthritis of the left wrist.

…

We disagree regarding the contribution of this lady’s accident to bringing forward the date of onset of more severe symptoms of the left wrist.

Professor Shearer’s view is that her accident on the 8^th July 2006 has simply brought forward the date of onset of more severe symptoms by a short period of 2 – 3 years.

Mr Hashemi, however, concludes that in the absence of a scaphoid fracture there is a 3 – 6 year period of acceleration in this case.

We agree that as a result of the symptoms in her left wrist [the injured person] describes problems with day-to-day activities and work. We agree that she would have experienced the same problems in due course in any case and the only contribution of her accident on the 8^th July 2006 is to bring forward the date of onset of these problems by a period which Professor Shearer estimates at 2 – 3 years and Mr Hashemi at 3 – 6 years.”

 

The injured person had at earlier stages been thought to have fractured the left scaphoid, but the experts agreed that the records indicated that there had not been a fracture. I note at this point that the injured person disputes strenuously that Kienbock’s disease was present before the accident or that she had symptoms previously and argues that her compensation should have been based on all of her limitations after 8 July 2006 being in consequence of the accident of that date. But see paragraph 11 below on what was within the scope of the appeal to the First-tier Tribunal.

 

6. Apparently the compensator paid over the sum of £9,689.28 to the Department for Work and Pensions on 10 May 2011, as specified on the certificate current at the time. That sum was confirmed in the certificate issued on 23 September 2011. It was also deducted from the amount paid by the compensator to the injured person through her then solicitors, Blaser Mills. The solicitors began correspondence with the Compensation Recovery Unit (CRU) in July 2011, requesting a review of the then current certificate, mentioning the terms of the experts’ joint statement, but arguing mainly that the amount of recoverable benefit should be limited to £4,319.09 for the period to the injured person’s 65th birthday as the amount of loss of earnings notionally recovered. The CRU took the view that there was nothing wrong with the certificate and that it was not concerned with how any compensator purported to make any deduction from a compensation payment under section 8 of the 1997 Act. In a letter of 1 November 2011 (page56) Blaser Mills stated that, in the light of the experts’ joint statement the injured person had been advised that her claim was limited to the mid-point in the periods of acceleration of a pre-existing medical condition, ie a period of three and a half years. It repeated the point about the amount of compensation for loss of earnings. Following a further refusal of review, a letter of 21 November 2011 (page 1I) was treated as an appeal.

 

7. The appeal was referred to the First-tier Tribunal as late, but was admitted following an extension of time. The CRU made the more substantial argument that the appeal did not fall within the First-tier Tribunal’s jurisdiction because the grounds relied on were outside section 11(1) of the 1997 Act:

 

“(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).”

 

That argument was elaborated on in considerable detail in the CRU’s written submission to the tribunal. In essence the argument was that, even if the compensator had deducted more from the compensation payment than permitted under section 8, that did not make the certificate wrong. The written submission by counsel representing the injured person, handed in at the hearing on 20 June 2013, was that the appeal fell within section 11(1)(a) because it was being argued that the amount specified in the certificate was incorrect.

 

The First-tier Tribunal’s decision

8. There was some preliminary discussion with counsel on 20 June 2013 (no representative of the Secretary of State being present) about whether, in the light of the decision of Judge Jacobs in PC v Secretary of State for Work and Pensions (CR) [2009] UKUT 210 (AAC) the ground relied on was a permissible ground of appeal under section 11(1)(a). Counsel also sought to rely on section 11(1)(d), hopelessly I think. In the course of argument (see the record of proceedings at pages 94 to 96), section 11(1)(b) was raised. It is hard to read the judge’s writing and counsel’s response may not have been very coherent, but there appears to have been a reference to the experts’ joint statement and the effect of the accident having merely been to accelerate problems that would have occurred anyway as a result of a pre-existing condition, with the judge then commenting that that would mean that the injured person would not be entitled to benefit.

 

9. As noted above, the tribunal disallowed the appeal and confirmed the certificate of 23 September 2011. In the combined decision notice and statement of reasons signed on 26 June 2013 it was stated in paragraph (v) that there was no dispute that the benefits listed in the certificate were paid in respect of the accident or injury and that counsel had argued that the appeal came under section 11(1)(a) or (d). On that basis it concluded that, since there was nothing in the consent order to specify what element of the global figure was attributable to loss of earnings, there was no basis on which it could be argued that section 8 had not been applied properly by the compensator. The tribunal did not have jurisdiction to identify any such element. Nothing at all was said about section 11(1)(b) or any question whether adopting the opinions of the experts in their joint statement would entail a conclusion that, from the date on which the injured person’s condition was regarded as not resulting from the accident of 8 July 2006, she was not properly entitled to disablement benefit depending on a connection with that accident, so that some part of the disablement benefit paid down to 10 May 2011 should have been excluded from the certificate.

 

The appeal to the Upper Tribunal

10. The injured person, having been refused permission to appeal by the First-Tier Tribunal judge, applied to the Upper Tribunal for permission, arguing that she had been the victim of injustice and incompetence in the way in which her compensation had been agreed, with the consequences on the amount deducted from her settlement by way of compensation recovery. She enclosed a number of documents that had not been in the papers before the tribunal of 20 June 2013.

 

11. When giving permission to appeal I said this about the arguments put forward by the injured person that would not have persuaded me to give permission:

 

“5.  First, the injured person has many criticisms of the substance of the settlement of her damages claim as reflected in the consent order dated 4 May 2011 and the process by which her agreement to the settlement was obtained. In particular, she did not accept that she should have been treated as having had any pre-existing problems associated with her left wrist ([and] especially not Kienbock’s disease), so that in her view all of her disabilities following the accident on 8 July 2006 should have been regarded as resulting from that accident. That was not the view of the two expert medical witnesses who compiled the joint statement dated 11 April 2011, who agreed that the accident had merely brought forward the onset of symptoms that would eventually have been suffered in the absence of the accident, but differed on the degree of acceleration. One expert considered that the symptoms had been brought forward by a period of 2 – 3 years, the other by 3 – 6 years. It appears from the letters in the papers from the injured person’s then solicitors, Blaser Mills, (and there appears no reason to doubt the accuracy of this) that the settlement was reached on basis of some sort of median between the views of the two experts, that was put at an acceleration of 3½ years. The tribunal of 20 June 2013 had no power to give any ruling on those matters and neither has the Upper Tribunal. The appeal to a First-tier Tribunal in compensation recovery cases is limited to the grounds set out in section 11(1) of the Social Security (Recovery of Benefits) Act 1997, where the appeal is expressed to be against the relevant certificate of recoverable benefits on various grounds. Thus the amount and nature and calculation of the compensation payment (once it is found that there has been a payment in consequence of any accident, injury or disease: see sections 1(1)(a) and 11(1)(d)) simply have to be accepted by the First-tier and Upper Tribunals as the basis for consideration of the certificate.

 

  6.  Second, it is submitted that an unfairness arose as follows. According to Blaser Mills, the amount included, but not specified in the consent order, within the global settlement figure of £21,250 (including interest and a 15% deduction for contributory negligence) for loss of earnings was limited to the period down to the injured person’s 65^th birthday (6 May 2007) because she could not prove that if the accident had not happened she would have carried on working after that date. Accordingly, the amount for earnings loss was said to be £4,319.09 (see the schedule of loss at page 63), but presumably also including the interest of £380.08. Yet the compensator deducted the full amount of £9,689.20 attributable to industrial injuries disablement pension paid down to 9 May 2011, as specified in the certificate, from the injured person’s global payment and paid that amount over to the Secretary of State. It was submitted that that was contrary to the rule in section 8 of and Schedule 2 to the 1997 Act restricting the deductibility of disablement pension to the head of compensation for earnings lost during the relevant period and was not only unfair but required the relevant period in the certificate to be amended to end on 6 May 2007. I do not need to speculate at this stage over whether the compensator ought when working out any deduction under the 1997 Act from the amount paid to the injured person under a settlement of a claim to take account of the basis of the settlement in terms of amounts to be allocated to various heads of compensation even though that basis is not specified in the consent order or other document recording the agreement to the settlement (although the respondents may wish to comment on that in their responses). I can test the point by asking what the position would have been if the consent order of 4 May 2011 had expressly stated that out of the total sum of £21,250 the amount of £4,319.09 plus interest had been attributed to loss of earnings.

 

  7.  What should have happened in those circumstances so far as the compensator was concerned was that the application of section 8 to the compensation paid to the injured person should have resulted in the deduction of the amount of £4,319.09 plus interest. But what the compensator paid over to the Secretary of State would not be limited to the amount of that deduction, but would have to be made up to the full amount of £9,689.20. What that confirms, in my view, is that the circumstances would not indicate that there was anything wrong with the certificate in terms of the amount of benefit or the period covered. All that the certificate does is to record the amount of benefit paid in respect of the accident, injury or disease in question during the relevant period. The “relevant period” is defined in section 3 of the 1997 Act as the five years immediately following the accident or injury, but ending when a final compensation payment is made to the injured person, if sooner. Thus the relevant period in the present case had to continue until 10 May 2011 when the payment was made. In my view there would have been nothing in the identification of the precise period for which compensation for loss of earnings was paid to indicate that the relevant period should have been shorter or to indicate that a ground of appeal under section 11(1)(a) of the 1997 Act existed in that respect. Indeed, the relevant period has to continue to extend to the date of the payment in order to require the compensator to pay over to the Secretary of State any balance of the recoverable benefits remaining if the allowable deduction under section 8 did not meet the full amount on the certificate. Therefore, my preliminary and provisional view is that none of the unfairness relied on by the injured person under this heading could be fixed by an appeal against the certificate under section 11(1)(a). That appears to be consistent with the conclusions reached by Judge Jacobs in PC v SSWP (CR) [2009] UKUT 210 (AAC). There then appears to be no error of law in the tribunal of 20 June 2013 having reached a conclusion consistent with that view, even though it may not have explained its reasons very clearly and may have wrongly (in my view) thought that it would have made a significant difference if the consent order had specified the amount and period covered by the head of loss of earnings, instead of simply stating the global sum.”

 

12. I then identified the point of law that was at least sufficiently arguable to require a response from the Secretary of State as follows:

 

“8.  The point of law which I consider to be arguable is that the tribunal of 20 June 2013 failed to give adequate consideration (indeed no consideration at all in its statement of reasons) to the ground of appeal under section 11(1)(b) of the 1997 Act (that listed benefits which have been paid otherwise than in respect of the accident, injury of disease in question have been brought into account in the certificate). The point arises in this way. The Tribunal of Social Security Commissioners in decision R(CR) 1/02 decided in the specific context of industrial injuries disablement pension that that benefit did not have to be regarded as “paid in respect of” the accident in question merely because it was actually paid under an award to which the causation of loss of faculty and resulting disablement by the accident was crucial. Instead, it concluded in paragraph 35 that in the context of the 1997 Act:

 

“benefits that ought not to have been paid at all cannot be said to have been ‘paid … in respect of’ a relevant accident, injury or disease. It follows that, in considering whether payments were made ‘otherwise than in respect of the accident, injury or disease in question’, a tribunal is entitled to reach a conclusion that is inconsistent with the award of benefit.”

 

A period of 3½ years from 8 July 2006 would take us to the beginning of January 2010. The tribunal of 20 June 2013 had before it the joint statement of the medical experts and the apparently consistent evidence from Blaser Mills that the settlement embodied in the consent order had been reached on the basis that after that period the injured person’s disablement would not have resulted from the accident of 8 July 2006, but would have resulted only from her pre-existing condition. It is therefore arguable that the tribunal should have given its own independent consideration to that evidence in addition to the evidence on which the assessments of disablement for industrial injuries purposes had been made and decided whether after some date in or after January 2010 the disablement pension that had been paid to the injured person (and included in the certificate down to 9 May 2011) was not paid in respect of the accident of 8 July 2006. If it had decided that that was so, then those benefits should have been excluded from the certificate, reducing the amount of recoverable benefit.

 

  9.  One objection to that argument might be that it was inconsistent with the injured [person’s] strongly maintained argument that all of her disablements stemmed from the accident of 8 July 2006 and that pre-existing conditions had no effect. However, my preliminary and provisional view is that that factor would not have precluded the injured [person], for the particular purposes of the compensation recovery case, from relying on the R(CR) 1/02 principle and from arguing that the more important element of consistency should be between the basis in terms of causation of disablement on which the payment of compensation was calculated and the identification of what benefits depending on that same causation should be deductible.

 

  10.  Another, potentially strong, objection to that argument might be that the injured [person], at the time of the tribunal hearing being represented by solicitors and counsel, had not relied in any way on the ground of appeal under section 11(1)(b). In several places in written submissions it was said that the entirety of the benefits concerned were recoverable and all that was in issue was the recovery by deduction from the payment of compensation to the injured person. The record of proceedings on 20 June 2013 shows that counsel put the injured person’s case forward under section 11(1)(a) and possibly (d). In such circumstances there would be a question whether there had been an explicit concession that section 11(1)(b) was not in issue such that the tribunal was not obliged to consider it. I do not discuss the case-law here (although the Secretary of State in particular may wish to do so in his response). That is because the record of proceedings at pages 94 to 96 of the papers shows that there was some discussion of section 11(1)(b) and that if the medical experts’ view was accepted the injured person might not have been properly entitled to disablement pension from some date within the certificate. I cannot make out all of the handwriting and counsel’s response does not seem clear (or at least not clearly recorded). It seems arguable that that was enough for the issue to be raised, so that that tribunal was obliged to deal with it as part of the appeal, bearing in mind as always its inquisitorial duties. As it was, the decision notice and statement signed on 26 June 2013 said that there was no dispute that the benefits listed in the certificate were paid in respect of the accident or injury, which appears to be incorrect, and gave no consideration to section 11(1)(b). It is arguable that the tribunal went wrong in law in both respects.”

 

13. The Secretary of State’s position in the submission of 21 November 2014, having agreed with the analysis in paragraph 7 of my reasons for giving permission (paragraph 11 above), was first that it was far from clear that counsel for the injured person expressed any wish to pursue the appeal under section 11(1)(b) and that the tribunal was not obliged to exercise its own inquisitorial powers to examine that issue if it was clear to them that it had little merit. I do not accept that submission. Even though the section 11(1)(b) issue was not expressly raised by the injured [person]’s professional representative in any coherent way, the test to be applied is that laid down by the Northern Ireland Court of Appeal in Mongan v Department for Social Development [2005] NICA 16, reported as R3/05 (DLA), approved by the Court of Appeal in England and Wales in Secretary of State for Work and Pensions v Hooper [2007] EWCA Civ 495, reported as R(IB) 4/07. There it was held that an issue that is “clearly apparent” from the evidence must be considered, even though not expressly raised by a party to the appeal or a representative, including a legal representative. The extent of the consideration required will depend on the circumstances of the case. My judgment in the present case is that the evidence of the joint statement of the medical experts and of the basis of the settlement of the injured person’s damages claim did (in the light of the R(CR) 1/02 principle discussed further below) sufficiently clearly raise the issue of the potential application of section 11(1)(b) to require that issue not merely to be discussed with the injured [person]’s counsel, but to be dealt with in the statement of reasons. It was therefore an error of law for the tribunal of 20 June 2013 not to deal with the issue in its statement of reasons, but to proceed on the apparent basis that there was no dispute that the benefits listed in the certificate were paid in respect of the accident or injury in question. In the circumstances the tribunal should have gone behind that apparent lack of dispute.

 

14. That may seem a rather harsh judgment on the members of the tribunal of 20 June 2013. They had given a professionally qualified legal representative the chance to develop an argument on section 11(1)(b) which had not been taken up. Why should they be required as a matter of law to go further? However, compensation recovery is a highly technical area where there is not infrequently confusion amongst practitioners about the inter-relationship of all the provisions of the 1997 Act and in particular about the scope of the permissible grounds of appeal against a certificate under section 11. Indeed the way in which matters had previously been argued by Blaser Mills and in counsel’s written submission could be said to exhibit just that sort of confusion, which was not dispelled, as far as one can tell from the record of proceedings, by counsel’s responses to the points put to him by the tribunal. In those circumstances it is my view that the tribunal was required to take its own view of the relevance of section 11(1)(b) and to explain in the statement of reasons why it reached that view. I also bear in mind that I see the section 11(1)(b) point as one with substantial merits.

 

15. The further submission for the Secretary of State, if it were to be concluded that the tribunal erred in law by not dealing with the section 11(1)(b) point, was that the error was not material in that it could have made no difference to the outcome of the appeal. It was submitted, by reference to what was said in R(CR) 1/02, that disablement benefit was not paid “mistakenly” to the injured person in the present case, so that it had to be accepted as paid in respect of the accident or injury of 8 July 2006. It was submitted that the awards made were perfectly reasonable on the evidence then available and that the evidence that had subsequently come to light did not show that the assessments of relevant loss of faculty and of disablement had become unreasonable.

 

16. I do not accept that submission either. It is not entirely easy to distil the essential principles from the decision in R(CR) 1/02. Sometimes phrases are used in discussion of the general background and context of the 1997 Act (like “benefits mistakenly paid”) when it is not clear that they are intended to limit the operation of the principles that the case actually stands for. In two of the three cases considered by the Tribunal of Commissioners medical appeal tribunals had accepted arguments by compensators that the disability resulting from the accident of injury in question had not lasted for nearly as long as the period covered by the benefits specified in the certificate. In the third case, the appeal tribunal accepted that a substantial element of the claimant’s disablement was not attributable to the accident at all. The Secretary of State argued on his appeal to the Commissioners that benefit was paid in respect of the accident, injury or disease for the purposes of sections 1(1)(b) and 11(1)(b) in every case where an adjudicating authority had validly awarded benefit and had attributed the condition giving rise to the entitlement to the relevant accident, injury or disease. That argument was rejected. The result therefore, as set out in paragraph 35 of the decision, is that tribunals in appeals under section 11(1)(b) are entitled to reach conclusions that are inconsistent with the award of benefit. Although the Tribunal of Commissioners uses phrases like “benefits “that ought not to have been paid” or ought not to have been paid at all, in my judgment there is no requirement to find some mistake or error in the process of awarding the benefit in question. All that is meant is that if the conclusions reached by the tribunal on the section 11(1)(b) question on its own independent view of the evidence (which can of course include the benefit awards and the evidence on which they were based) were applied in the benefit context they would lead to a different decision on entitlement or the amount of benefit. It seems to me that it must follow that, once it is clear that the tribunal under section 11(1)(b) (or the Secretary of State in preparing a certificate) is not bound by any decision on entitlement to the benefit or benefits in question (as was made clear by the Court of Appeal in Northern Ireland in Eagle Star Insurance v Department for Social Development [2001] NICA 4, reported as appendix to R1/01 (CRS)), the tribunal or the Secretary of State must take their own independent view of all the evidence in deciding the particular statutory question before them. And it is absolutely clear, from the facts of the first two cases considered in R(CR) 1/02 (and see R(CR) 1/01) that an award of benefit that is at the beginning in respect of the accident, injury or disease in question ceases to be recoverable if at some later date that accident, injury or disease ceases to be the effective cause of the disability underlying the award.

 

17. It must also, though, be remembered that the statutory questions under sections 1(1)(b) and 11(1)(b) focus on the payment of benefits. In an appropriate case, it may be necessary to take into account the practicalities of bringing an award of, and the consequent payment of, benefit to an end. Thus in the Northern Ireland case of R1/05 (CRS) the Chief Commissioner, Judge Martin QC, considered the case of a claimant receiving income support on the ground of incapacity for work who was found to be capable of work (and no longer entitled to benefit) from 9 June 2000, following a medical examination on 28 April 2000 indicating that the claimant did not score sufficient points to qualify as incapable of work. Income support down to 8 June 2000 was included in a certificate of recoverable benefits. The compensator’s appeal was allowed by an appeal tribunal on the basis that from 28 April 2000 the benefit was not paid in respect of the accident that had been the cause of the claimant’s incapacity for work. The Chief Commissioner held that to be an error of law and, following an earlier decision, that for a reasonable time after the coming into existence of relevant evidence to allow the necessary administrative actions to be carried out, the benefit remained properly payable and recoverable. That may be so when the process of evidence-gathering and administration is within the ambit of the benefit authorities. However, it is hard to reconcile with the principle of R(CR) 1/02, to which the Chief Commissioner seems not to have been referred, his apparent suggestion that if the appeal tribunal had accepted evidence from the compensator that the claimant had been working prior to 28 April 2000 and consequently was not incapable of work been, it would have been right not to speculate on when he actually became capable of work, because benefits should only be stopped by due process.

 

18. Accordingly, if the tribunal of 20 June 2013 had accepted, on all the evidence that it had, that from some date prior to 10 May 2011, the accident of 8 July 2006 had ceased to be an effective cause of her loss of faculty and resulting disablement, any disablement benefit paid after that date should have been excluded from the certificate of recoverable benefits. The evidence before the tribunal was effectively the joint statement of the medical experts and the slightly inconsistent evidence of the basis of the settlement. The representative of the Secretary of State sought to argue on the basis of evidence coming to light after 20 June 2013 (in the main in documents produced by the injured person with her application to the Upper Tribunal for permission to appeal) that the only decision that could be reached, if the legal approach set out above were to be adopted, would be that the accident had not ceased to be an effective cause at any date before 10 May 2011. That is not a legitimate argument for the tribunal of 20 June 2013 not having made a material error of law, as it rests on evidence not before that tribunal. I come back to those arguments when considering my substituted decision on the injured person’s appeal against the certificate.

 

The Upper Tribunal’s conclusion on the appeal and substituted decision

19. For the reasons given above, the decision of the tribunal of 20 June 2013 involved an error of law and must be set aside. As explained in paragraph 2 above, it is appropriate for the Upper Tribunal to re-make the decision on the injured person’s appeal against the certificate of recoverable benefits.

 

20. In doing so, I can start with the joint statement of the medical experts dated 11 April 2011, the outcome of discussions between them and evidently involving some modification of views expressed earlier by each of them. The relevant parts of the joint statement are set out in paragraph 5 above. The influence of it on the settlement of the damages claim is not entirely clear. In the updated schedule of loss dated 18 April 2011 (see paragraph 4 above) it was said that the claim for loss of earnings was limited to the period down to 11 January 2011, representing four and a half years from the date of the accident as the mid-point of Mr Hashemi’s bracket for the accident being an effective cause of the injured person’s symptoms. That does not explain why only Mr Hashemi’s conclusion was adopted, although it would have been more favourable to the injured person in the calculation of damages than Professor Shearer’s and may have been adopted as the best that could then be put forward for her. However, when one gets to Blaser Mills’ letter of 1 November 2011 it was said that the period of three and a half years had been adopted as the mid-point of the two experts’ conclusions. It thus appears that what was claimed by way of damages may not have survived into the settlement. I wondered at one point whether the reference to three and a half years in that letter was a typing error, but I think not because of the reference to both experts and not just to Mr Hashemi. Whatever the answer is on that point is though secondary. For present purposes the primary focus is on the Upper Tribunal’s evaluation of the joint statement. On the basis that the best estimate is likely to be between the two opinions, the more realistic length of time would seem to be three and a half years, rather than three as the one point at which the conclusions intersected.

 

21. In the submission of 21 November 2014 the representative of the Secretary of State drew attention to the report from Mr Hashemi dated 21 March 2011 (pages 134 to 137) in which he gave the opinion that the accident of 8 July 2006 had accelerated the injured person’s symptoms by anywhere from five to ten years. It was suggested that that opinion should be adopted, with the result that the disablement benefit would be regarded as paid in respect of the accident for the whole of the period down to and past 10 May 2011. However, the representative wrongly described that report as supplementary to the joint statement. In fact, it was the other way round. The report of 21 March 2011, although supplementary to some earlier report or reports, preceded the joint statement, which was drafted following the opportunity for the two medical experts to benefit from a discussion of the evidence and an opportunity to reconsider their positions. What was said in that statement must therefore be regarded as overtaking Mr Hashemi’s report of 21 March 2011 and there is no warrant for adopting a period of acceleration of disablement as long as five to ten years.

 

22. The Secretary of State’s representative also drew attention to the advice for disablement benefit purposes dated 4 March 2012 from an approved disability analyst, Dr Penfold, on receipt of a copy of the joint statement, which said that the experts agreed that the accident of 8 July 2006 had brought forward the pre-existing problems’ severity by three to six years, so that it was not likely to cause an assessable loss of faculty after 8 July 2012 (page 128). She also provided the information that a decision was then made superseding the injured person’s award of disablement benefit and disallowing benefit with effect from 8 July 2012, but that a First-tier Tribunal of 14 May 2014 allowed an appeal against that decision, substituting an award based on an assessment of disablement at 20% from 8 July 2012 for life, after offsetting 15% for pre-existing degenerative changes in the wrist. It was said that:

 

“The tribunal relied on its medical expertise to conclude that all of the disablement suffered by the [injured person] was not as a result of the pre-existing condition and they placed particular regard to Mr Hashemi’s note that both wrists were x-rayed in 2006 and evidence of sclerosis of the distal lunate was seen on both but that the right wrist had not developed the problems that [the injured person] experienced on the left.”

 

Those matters must be taken into account as relevant evidence in re-making the decision on the injured person’s appeal, although without the benefit of seeing any actual statement of reasons from the tribunal of 14 May 2014.

 

23. The first difficulty with that evidence is that Dr Penfold misstated the effect of the joint statement. The experts did not agree on an acceleration of between three to six years. That was only Mr Hashemi’s conclusion. Professor Shearer still considered that the acceleration had been more rapid. Thus choosing the date of 8 July 2012 was taking the most generous view possible towards the injured person of the implications of the joint statement, from the point of view of disablement benefit entitlement, possibly based on some misreading of the evidence.

 

24. Then, while the medical expertise brought to bear in the decision of the tribunal of 14 May 2014 must be accorded considerable respect, there seem to me to be problems in relying on what Mr Hashemi had said (in his report of 21 March 2011) about the implications of sclerosis of the right wrist as well as the left being seen on x-ray in 2006. First, Mr Hashemi had not seen any x-rays and the x-ray reports he had seen did not include any from 2006. What he had seen was a report of 7 February 2011 from Professor Shearer referring to x-rays of both wrists on 13 September 2006 where he “implies that the image on the right side also shows evidence of sclerosis of the distal lunate although he admits that the x-rays are of poor quality”. Thus, Mr Hashemi’s conclusions about acceleration in that report were based on a second-hand and somewhat vague report of poor quality x-rays. Second, and perhaps more important, Mr Hashemi’s report of 21 March 2011 was overtaken by the joint statement of 11 April 2011. It seems significant that in that joint statement Professor Shearer made only a slight modification to the conclusion that he had apparently stated in his report of 7 February 2011 that the accident had brought forward the inevitable disability from the pre-existing condition by one to three years, but Mr Hashemi changed his opinion quite considerably from five to ten years to three to six. No specific reason was given for that change, but it is notable that there was no reference at all in the joint statement to any x-ray findings on the right wrist or their implications. In those circumstances, it is my judgment that little, if any, weight can be given to the implications drawn by Mr Hashemi in his report of 21 March 2011 from the possible existence of Keinbock’s disease in the right wrist as well as the left before 8 July 2006.

 

25. That judgment diminishes the weight to be given to the decision of the tribunal of 14 May 2014, as does the fact that I do not know if that tribunal was able itself to inspect x-rays and x-ray records. I must, though, still take account of its conclusion that the accident of 8 July 2012 continued to be an effective cause of the injured person’s disablement beyond 8 July 2012. Despite that, I consider that the most authoritative, objective and soundly based assessment of the case is that provided in Professor Shearer’s and Mr Hashemi’s joint statement of 11 April 2011, pointing towards a conclusion, as stated at the end of paragraph 20 above, that the accident of 8 July 2006 ceased to be an effective cause of the disablement on which the award of disablement benefit was founded after 8 January 2010, three and a half years after the date of the accident.

 

26. I conclude that the disablement benefit paid after that date was paid in circumstances in which the conditions for entitlement and payability of that benefit were not met. In that sense, the benefit was paid wrongly, although the present decision does not in itself alter the perfectly valid decisions under which benefit has been awarded to the injured person. Nor do I consider that those decisions were mistaken in the sense that no reasonable decision-maker or tribunal could possibly, on the evidence that they had augmented by the evidence that is before me, have reached a decision that there was entitlement to disablement benefit for any period after 8 January 2010. There is considerable room for reasonable differences of opinion, especially in the benefit context where there may be a legitimate leaning towards adopting the most generous view in terms of benefit entitlement for a claimant that can reasonably be supported. But it is not necessary for the Upper Tribunal to find that benefit was mistakenly paid in that sense. It is enough that the conclusion in the compensation recovery context is inconsistent with the awards under which benefit has been paid.

 

27. Accordingly, I conclude that disablement benefit paid to the injured person after 8 January 2010 was not paid “in respect of the accident, injury or disease in question” and must be excluded from the certificate of recoverable benefits. The injured person’s appeal against the certificate dated 23 September 2011 is therefore allowed under section 11(1)(b) of the Social Security (Recovery of Benefits) Act 2007 and the contents of that certificate cannot be confirmed. The fresh certificate to be issued under section 12(5)(b) must contain the necessary variations to exclude any disablement benefit paid after 8 January 2010.

 

28. For the reasons explained in detail in paragraph 11 above, neither the First-tier Tribunal nor the Upper Tribunal has any power in a section 11(1) appeal to make any ruling about whether or not section 8(3) has been applied correctly by the compensator in making the deduction from the compensation payment made to an injured person. Thus, the arguments of unfairness in relation to the amount of compensation for loss of earnings said to be included in the global settlement as compared with the deduction raised on behalf of the injured person in the present case cannot found any successful appeal under section 11(1)(a) or (d). I express no opinion about whether the discussion of the proper operation of section 8(3) in paragraphs 22 to 41 of Mr Commissioner Rowland’s decision in R(CR) 2/04 could be of any assistance to the injured person or whether there is any process under which she could now challenge the compensator’s action under section 8(3). Neither the Secretary of State nor the compensator took the opportunity offered to comment on those matters.

 

29. Following the issue of a fresh certificate of recoverable benefits as directed above and on the basis that the variations specified above will result in a reduction in the amount specified in the fresh certificate, the immediate consequence would appear to be that the Secretary of State would be required, under section 14(2) of the 1997 Act and regulation 11(1) of the Social Security (Recovery of Benefits) Regulations 1997, to refund the difference between the amount specified in the certificate of 23 September 2011 (and paid to the Secretary of State under section 6) and the amount specified in the fresh certificate to the compensator. The amount of that refund would then be required to be paid to the injured person by the compensator under regulation 11(4) and (5) (see R(CR) 3/03, paragraph 11).

 

 

 

 

(Signed on original):  J Mesher

Judge of the Upper Tribunal

 

Date: 22 June 2015