CCR 6524 1999
| Jurisdiction | UK Non-devolved |
| Judge | Three-Judge Panel / Tribunal of Commissioners |
| Judgment Date | 15 May 2001 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CCR 6524 1999 |
| Subject Matter | Compensation recovery |
R(CR) 1/02
Judge K. Machin QC CCR/6524/1999
Mr. W. M. Walker QC CCR/2539/2000
Mr. M. Rowland CCR/3012/2000
15.5.01
Recovery from compensation payments – industrial injuries benefits – whether necessarily “paid … in respect of” the relevant accident
In each case, compensation was paid to a claimant following an industrial accident. The Secretary of State issued certificates of recoverable benefits under the Social Security (Recovery of Benefits) Act 1997 and recovered from the compensators benefits paid to the claimants following the accidents. The compensators appealed against the certificates, under section 11(1)(b) of the 1997 Act, contending in each case that benefits listed in the certificates, including industrial injuries benefits, had been “paid otherwise than in respect of” the industrial accident. All three appeals were allowed by tribunals. The Secretary of State appealed to the Commissioners on the ground that the industrial injuries benefits had been expressly awarded on the basis that the claimants had suffered personal injury caused by the industrial accidents and that the benefits had therefore necessarily been paid in respect of the accidents, even if evidence showed that they ought not to have been paid at all
Held, dismissing the appeals, that
- in the context of the 1997 Act, benefits that had been paid but ought not to have been paid could not be said to have been “paid … in respect of” a relevant accident, injury or disease because it had not been the intention of Parliament that a compensator should be obliged to reimburse the Secretary of State for benefits mistakenly paid;
- therefore, the tribunals had been entitled to reach conclusions that were inconsistent with the awards of benefit and implied that benefit ought not to have been paid.
[Note: This case was determined at the same time as the case reported as R(CR) 2/02.]
DECISION OF A TRIBUNAL OF SOCIAL SECURITY COMMISSIONERS
Mr. Richard Drabble QC (instructed by the Solicitor to the Departments of Social Security and Health) appeared for the Secretary of State for Social Security.
Mr. Mark Turner QC and Mr. Peter Burns (instructed by Berrymans Lace Mawer of Manchester) appeared for Oldham Metropolitan Borough Council.
Mr. Jeremy Stuart-Smith QC and Mr. Christopher Kennedy (instructed by Keoghs of Bolton) appeared for Tarmac Roadstone Northwest.
Mr. Anthony Goldstaub QC (instructed by Whitfield Hallam Goodall of Batley) appeared for Trefoil Steel Co. Ltd.
The injured persons neither appeared nor were represented.
Decision
1. We heard these three appeals together (with a fourth case, CCR/2312/2000, in which we give a separate decision) because each raises the question whether, on an appeal under section 11 of the Social Security (Recovery of Benefits) Act 1997, a tribunal is entitled to reach a decision that implies that benefit was wrongly awarded to the victim of the relevant accident, injury or disease.
2. In these three cases, the benefits in issue are industrial injuries benefits expressly awarded on the basis that the claimants had each suffered personal injury caused by an industrial accident. The Secretary of State submits that the benefits were therefore necessarily “paid … in respect of” the accident or injury and, insofar as they were paid during the relevant period, they are recoverable under the 1997 Act even if evidence shows that they ought not to have been paid.
The facts and preliminary issues
Secretary of State for Social Security v. Oldham Metropolitan Borough Council
3. In this case, the compensator’s insurers, Zurich Municipal Insurance, settled in November 1997 a claim arising out of an industrial accident on 10 December 1990. The injured person had fallen down a sump hole about 51/2 feet deep, striking his back against a protruding valve casing and landing on a concrete floor. He claimed and was paid benefits in respect of incapacity for work throughout the relevant period of five years after the accident, being paid statutory sick pay, followed by invalidity benefit and then incapacity benefit. He was also paid disablement pension from 27 March 1991 and mobility allowance from 22 January 1992, followed by the mobility component of disability living allowance. The total amount of those benefits paid up to the end of the relevant period was £33,904.24 as shown on a certificate of recoverable benefits issued on 30 October 1997, although this figure was subsequently reduced by £840 and a new certificate was issued in the sum of £33,064.24.
4. The compensator, through its insurers, appealed against the certificate on the ground that the disability arising out of the accident would not have lasted longer than a year. The Manchester medical appeal tribunal allowed the appeal on 24 June 1999. It was not in issue that the injured person had remained disabled throughout the relevant period and that he was suffering from depression. However, the tribunal found that he had not suffered a fracture in the accident as at one time suspected and that a subsequent disc hernia was constitutional and, by implication, unrelated to the accident. They accepted that the accident had not been the cause of physical disability after a year and, to the extent that the depression arose out of his physical disabilities, they also concluded that the continuing depression could not be attributed to the accident after that period. The consequence was that the parties agreed that the amount of benefit recoverable from the compensator was only £4,569.54. That sum represented the statutory sick pay, invalidity benefit and disablement benefit paid up to 10 December 1991 and was less than the £5,478.43 deducted under section 8 of the 1997 Act from the damages payable to the injured person (who was therefore entitled to just over £900 out of almost £28,500 to be repaid to the compensator by the Secretary of State). The Secretary of State appeals on the ground that the tribunal erred in reaching a decision that implied that disablement pension had been improperly paid from 11 December 1991. Mr. Drabble did not pursue a second ground of appeal challenging the tribunal’s findings of fact.
5. Mr. Turner, for the compensator took a preliminary point arising out of the form of the tribunal’s decision, which was recorded on a standard form of decision notice that appears to have been designed without any regard to the legislation governing appeals. The form invites the tribunal to decide only whether the victim suffered “injury, sickness or disease” as a result of “the occurrence”, what the injury, sickness or disease was and for what period the victim suffered “any injury, sickness or disease” (our emphasis). In this case, the tribunal recorded that the injured person had suffered a soft tissue injury to the spine for one year “as a result of this accident”. It appears that, having obtained that ruling, the parties agreed that the amount of compensation recoverable on that basis was £4,569.54. The tribunal recorded that agreement on the decision notice in the space reserved for their summary of grounds. Mr. Turner argued that the conclusion as to the amount of benefits that was recoverable was one reached by the parties and not by the tribunal and that the Secretary of State was not in fact challenging the tribunal’s decision and was not entitled to challenge the parties’ agreement. He submitted that the agreement involved a review by the Secretary of State under section 10 of the 1997 Act, made in the light of the tribunal’s ruling on the preliminary point.
6. After he had made that submission, it became apparent that in fact, following the tribunal’s decision, the Compensation Recovery Unit had sent a revised certificate in the sum of only £4,288.94. This was because the parties’ representatives at the hearing had omitted one day’s invalidity benefit from their calculation and had forgotten that only 80% of the statutory sick pay was recoverable. The compensator naturally did not object to that variation of the agreement reached at the hearing. The covering letter began:
“Our previous correspondence refers.
“The Certificate of Recoverable Benefits dated 30.10.97 has been revised in accordance with the decision of the Medical Appeal Tribunal dated 24.06.99. A revised copy is enclosed for your retention.
“As a result of the review a refund amounting to £28,775.30 is due and a cheque to that value will be issued to your office within...
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