Decision No: C1/96(CRS)

	SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

	SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS
	(NORTHERN IRELAND) ACT 1992

	SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS)
	(NORTHERN IRELAND) ACT 1992

	COMPENSATION RECOVERY SCHEME

	Appeal to the Social Security Commissioner
	on a question of law from the decision of the
	Downpatrick Social Security Appeal Tribunal
	dated 17 October 1995

	DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant against the decision of a Social Security Appeal Tribunal and it relates to a certificate in respect of compensation recovery.  I arranged an oral hearing of the Appeal at which claimant was represented by Mr S… of T…, Solicitors and the Department was represented by their Solicitor, Mrs Fitzpatrick.

2.	The claimant settled a claim for damages for industrial injury out of court and received compensation of £25,000 to include any amount recoverable by the Compensation Recovery Agency.  As required under the Compensation Recovery Scheme the compensator requested and received a certificate of total benefits dated 20 January 1995.  As a result of that certificate £10,703.02 from the total award of damages was forwarded to the Compensation Recovery Agency.

3.	Claimant was advised by his legal advisor at the time of the settlement that the certificate was wrong as it included benefits which were paid otherwise than in consequence of the industrial disease and was further advised that the amount of overstated benefits would be recoverable from the Department on appeal.  On that advice he settled the action.  

4.	In February 1995 claimant's representatives wrote a letter of appeal against the certificate on the grounds that the amount was wrong.  This appeal was treated in the first instance as a request for review.  The law relating to a review of a certificate is found in sections 93 and 94 of the Social Security Administration (Northern Ireland) Act 1992.

5.	As a result of the review the Department issued a fresh certificate on 11 May 1995 which confirmed that statutory sick pay, invalidity benefit and income support which claimant had received with effect from 15 March 1993 were now not considered to have been awarded in consequence of the relevant disease, and that the Certificate would be adjusted accordingly.  However, the Department then went on to say that claimant had received disablement benefit and reduced earnings allowance which were both paid in consequence of his occupational asthma but which were not taken into account in the certificate of 20 January 1995.  Taking them into account the result was that claimant was entitled to a refund of £112.03.

6.	The Department made a third attempt to get the matter right and on 31 May 1995 issued a further certificate.  In a letter to claimant's solicitors on 6 June the Department said that the income support details which were shown on the certificate issued on 11 May 1995 were incorrect and that the total refund now due was £692.58.  In the letter of 6 June it was recorded that "The case will now be referred to an Independent Tribunal for determination".  

7.	The Appeal Tribunal first sat in August 1995 and heard evidence relating to the settlement.  It recorded its decision as:-

		"Claimant is entitled to recover an additional amount from the
		Department.

		Adjourned at request of the parties to afford opportunity to consider
		and discuss figure."

	The Tribunal gave reasons for its decision:-

		"Department is estopped from subsequently introducing matters
		which should have been but were not taken into account in the
		certificate of total benefit issued on 20 January 1995 on which
		Mr J… and his advisors relied."

8.	Unfortunately that Tribunal created an additional problem because it is not very clear what it decided.  Was the decision that it would adjourn or was the decision that claimant was entitled to recover an additional amount and adjourned to find the proper figure?  Did it estop the Department from reducing the amount claimed in respect of the benefits which should not have been included?.

9.	In any event the Tribunal reconvened in October and its unanimous decision at that date was:-

		"A fresh certificate should issue showing the same dates and amounts
		in respect of each benefit as in the certificate of 31 May 1995."

	and gave reasons for that decision as:-

		"It was not in dispute that the certificate of 31 May 1995 is
		factually accurate.  The Tribunal was sympathetic to the
		estoppel argument put forward by Mr H… and so indicated at
		the initial hearing, but on further consideration concludes
		that it is not empowered to direct what it would consider
		equitable in the circumstances of the case.  Under Section 94
		Social Security Administration (Northern Ireland) 1992 Department
		can treat appeal as application for review, and on review can
		correct mistakes in the certificate appealed.  Its powers on
		review are limited not by estoppel but by the terms of Section
		93(2).  Having regard to definition of 'total benefit' (Social
		Security 77(1) and 78(1)(a)) the Tribunal considers the certificate
		of 31 May 1995 is in breach of Section 93(2).  The Tribunal 
		however has to establish as a matter of fact the amounts of 
		benefit paid in consequence of the disease and is not limited 
		by Section 93(2), nor can estoppel operate to prevent the Tribunal
		from so doing [Section 95(2) and CCR/001/1993].

		The only options open to the Tribunal appear to be those set out
		in Section 94(8), (although the Section does say 'may' rather
		than 'shall').  The first alternative i.e., to confirm the
		certificate is inappropriate as the certificate of 31 January
		1995 is incorrect and the certificate of 31 May 1995 although
		factually correct is ultra vires.  The only option open is thus to 
		direct issue of a fresh certificate, which can only be in the
		same terms as the certificate of 31 May 1995 as Tribunal has
		no powers to direct that any part of benefits actually paid in
		consequence of the disease be excluded."

10.	Against that decision claimant now appeals.  The relevant law is to be found in the Social Security Administration (Northern Ireland) Act 1992.  Section 93 reads:-

		"93.-(1)  The Department may review any certificate of total benefit
		if the Department is satisfied that it was issued in ignorance of,
		or was based on a mistake as to, some material fact or that a mistake
		(whether in computation or otherwise) has occurred in its 
		preparation.
		(2)  On any such review the Department may either -

		(a)  confirm the certificate, or

		(b)  issue a fresh certificate containing such variations as
			  the Department considers appropriate,

		but the Department shall not so vary the certificate as to increase
		the total benefit.

		(3)  In any case where -

		(a)  one or more relevant payments have been made, and
			
	(b)  in consequence of a review under this section, it appears that the                aggregate amount so paid exceeds the amount that ought to have been  paid,

		the Department shall pay the intended recipient an amount equal to 
		the excess."

		Section 94 as far as relevant reads:-

		   (7)  If any question concerning any amount, rate or period
		specified in the certificate of total benefit arises for 
		determination on an appeal under this section, the Department
		shall refer that question to a social security appeal tribunal -
		
		(a)	[not relevant]

		(b)	[not relevant]"
	Section 94(8) referred to as far as is relevant reads as follows:-

		"94(8)  On a reference under subsection (7) above a social security
		appeal tribunal may either -

		(a)	confirm the amounts, rates and periods specified in the 
			certificate of total benefit; or

		(b)	specify any increases, reductions or other variations which 
			are to be made on the issue of the fresh certificate under
			subsection (9) below.

		   (9)  When the Department has received the determinations of the
		tribunals on the questions referred to them under subsections (5)
		and (7) above, it shall in accordance with those determinations
		either -

		(a)	confirm the certificate against which the appeal was brought, or

		(b)	issue a fresh certificate."

11.	At the hearing before me Mr S… said that the settlement was based on the medical evidence that part of the benefits were not paid in respect of the injury which was the subject of the claim.  He said that there were special damages claimed but that the amount of compensation recovery was not specifically pleaded as a special damage.  At that time both Senior Counsel knew that the Certificate was wrong and that there would be a refund.  It was on that basis that claimant accepted a settlement of £25,000 and was advised that he would be successful in an appeal against the Certificate.  He said that the first Tribunal found that claimant was entitled to a refund and adjourned to have that amount assessed, and argued that the second Tribunal was estopped from attempting to claim additional benefits and argued that in fact while the Department reduced the amount of the Certificate by benefits which were wrongly included increased the amount of benefit by increasing the certificate contrary to Section 93(1)(2) of the Social Security Administration (Northern Ireland) Act 1992 because it varied the Certificate to increase it.

12.	Mrs Fitzpatrick said that the first Tribunal adjourned to consider the figures and it seemed to base its argument on estoppel. She accepted that it was not very clear and that it was ambiguous, but in any event argued that where a statute enacted for the benefit of a section of the public imposed a duty of a positive kind that person charged with the performance of the duty cannot by estoppel be prevented from exercising his statutory duty.  Her authority for that proposition was found in paragraph 962. of Hallsbury's Volume 16.  She said that the claimant had asked for the appeal.  This request was treated as an application for a review and argued that the Certificate did not increase the amount of benefit and that at the end of the day claimant got a refund, although it was less than he expected.

13.	In a further written submission on behalf of the claimant Mr S… argued that the first Tribunal found for the appellant and adjourned to enable the parties to agree figures of benefit to be refunded.  He said the first decision was correct in accordance with the statutory provisions and that the only issue to be resolved was the calculation of the exact amount and that the adjournment was made solely for the purpose of calculating the figure due and not for any other reason.  At the second hearing the appellant and his advisors were taken completely by surprise because the Tribunal in effect reheard the initial submissions.  He argued that this was contrary to section 3 of the Social Security (Adjudication) Regulations (Northern Ireland) 1987.

14.	Mrs Fitzpatrick reduced the argument to simple terms.  She said that at the end of the day the Certificate did not increase the total benefit and that the second Tribunal was not estopped from considering the matter.

15.	I have read the file and all the submissions and have carefully considered the arguments put forward.  It is quite clear that claimant was mislead and is now disappointed with the amount of refund but it has not been disputed that the figures are wrong.  The figures are in fact correct in the final certificate of 31 May 1995 as claimant in fact got all this benefit and it was paid as a result and consequence of his injuries.  The only points to be considered therefore are whether or not the second Tribunal or, more correctly, the reconvened Tribunal correctly considered the estoppel question.  Clearly it formed a different opinion than it had formed at the first hearing.  I am quite satisfied that Mrs Fitzpatrick's argument is correct and the Department has a statutory duty of a positive kind and that it cannot be estopped from performing that statutory duty.  The next question is whether the Department erred in the certificate of May 1995 by increasing the amount of total benefit.  The Tribunal seemed to think that it had when it found that that certificate was ultra vires and then went on to confirm the amount in that certificate.

16.	I am satisfied that the Tribunal had power to increase the total benefit in a certificate by virtue of the referral to it under section 94(8)(a) and (b), but in any event I am quite satisfied that the total benefit was not increased because initially the total benefit exceeded the amount of the certificate of May 1995 which everyone agrees contains the correct figures.  In that event the Tribunal came to the right decision I think for the wrong reasons.  I think it took the view that the total benefit had been increased but that it was not restricted by that provision.  Whichever is right the certificate of 31 May 1995 contains the correct figure, the Tribunal so found and I am satisfied that it did not err in law in so finding.  I have every sympathy for the claimant and he took the advice which was offered to him but it may well be that these certificates being issued by the Department should be looked at with greater suspicion, because in this case it took the Department three certificates before it got it right and in view of the fact that the money must be paid before the certificate can be questioned, those whose responsibility it is to advise claimants in this type of situation should bear in mind that no settlement should take place until they satisfy themselves as to the correctness of the figures.  

17.	It is with great reluctance therefore that I dismiss this appeal.

	(Signed):  C C G McNally
							
	COMMISSIONER

	29 December 1997