MA CCR 236 2014
| Jurisdiction | UK Non-devolved |
| Judge | Judge J. Mesher |
| Judgment Date | 22 June 2015 |
| Neutral Citation | 2015 UKUT 349 AAC |
| Subject Matter | Compensation recovery |
| Respondent | Secretary of State for Work and Pensions and Litigation Authority (CR) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CCR 236 2014 |
| Appellant | MA |
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 65th 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 8th 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 8th 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...
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