Decision No: C2/96(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
	Dungannon Social Security Appeal Tribunal
	dated 8 August 1996

	DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	In this case the Department of Health & Social Security for Northern Ireland (the Department), appeals against the decision of the Appeal Tribunal, whereby it allowed an appeal from a decision of the Adjudication Officer and directed that the Agency issue a fresh Certificate of total benefit in respect of the period 16 October 1990 to 14 April 1991.  

2.	Leave to appeal was granted by a Chairman on 19 November 1996.  

3.	I held an oral hearing at which Mr D... , who was present, was represented by Mr R…, Solicitor and the Department was represented by Miss Finlay, instructed by Mrs Fitzpatrick of the Departmental Solicitor's Office.

4.	This case concerns the recovery of a sum of money equivalent to benefit from a compensation payment in respect of an accident or injury.  The background facts are not in dispute.  At this stage it is appropriate to record the findings of fact material to the Tribunal's decision and its reasons for its decision:-

		"Findings of Fact Material to the Decision:

		The claimant was involved in a road traffic accident on 15 October
		1990 as a result of which he sustained injury.  The appeal lies
		against the revised certificate of total benefit dated 27 November
		1995.  The Agency and claimant's representative are in agreement
		that the issue in this appeal is whether the benefit which the 
		claimant received from 16 October 1990 to 2 August 1995 was paid
		in consequence of the road traffic accident which occurred on
		15 October 1990.  The Agency referred the claimant's appeal to a 
		Medical Appeal Tribunal under the provisions of Section 94(S) (sic) 
		of the Social Security Administration (Northern Ireland) Act 1992
		and said Medical Appeal Tribunal were requested to,

		(a)	confirm that the condition which gave rise to the award of
			benefits listed on the revised certificate of total benefit
			occurred in consequence of the accident on 15 October 1990; and

		(b)	to determine the period for which the claimant suffered the
			effects of the relevant accident injury.

			The Medical Appeal Tribunal concluded that (a) the injuries
			suffered by the claimant in the accident which occurred on
			15 October 1990 were responsible for part of the period of the
			benefits listed in the revised certificate dated 27 November
			1995 and (b) that the period from which the claimant suffered
			the effects of the injuries which he received in the accident
			was from 16 October 1990 to 14 April 1991.

		The decision of the Medical Appeal Tribunal is binding on the Social
		Security Appeal Tribunal.

		The Social Security Appeal Tribunal who dealt with the claimant's
		invalidity appeal on 13 December 1993 dealt with the issue relating
		to the claimant's capacity for work in respect of the period 
		26 November 1991 to 11 January 1992.

		The hearing by the Social Security Appeal Tribunal related to the
		capacity of the claimant for work and not a hearing in relation
		to whether or not benefit paid/payable to the claimant was in
		consequence of his injury."

	The reference to Section 94(S) is obviously a typing error as the appropriate reference should be to Section 94(5) of the Social Security Administration (Northern Ireland) Act 1992.

		"Reasons for decision

		The appeal in this case lies against the revised certificate of
		total benefit dated 27 November 1995.  The issue in the appeal is
		whether or not the benefit which the claimant received from 
		16 October 1990 to 2 August 1995 was paid in consequence of the
		road traffic accident which occurred on 15 October 1990.  The
		Social Security Appeal Tribunal is required to determine whether
		any benefit paid or payable otherwise than in consequence of the
		accident or injury in question has been included in the certificate
		of total benefit.  Recoupable benefits only relate to the period 
		when the claimant is suffering from the consequences attributable
		to the accident.  A Medical Appeal Tribunal to whom the claimant's
		case was initially referred by the Agency for determination of the 
		medical question decided on 29 March 1996 that the injuries suffered
		by the claimant in the said accident were responsible for part
		of the period of the benefits listed in the revised certificate
		dated 27 November 1995.  They determined the period from which the
		claimant suffered the effects of the injuries sustained in the
		said accident as being from 16 October 1990 to 14 April 1991.  The
		determination of the Medical Appeal Tribunal is binding on us.

		We find that the benefits paid during the said period 16 October
		1990 to 14 April 1991 were benefits paid or payable in consequence
		of the accident or injury and that any other benefits included
		in the certificate of total benefit were benefits paid otherwise
		than in consequence of the accident/injury.  It is our conclusion
		therefore that the period for which the Department are entitled
		to recoup benefit in this case is limited to the period from
		16 October 1990 to 14 April 1991 and we therefore direct the issue
		of a fresh certificate in respect of said period."

5.	It is noteworthy also that Mr D... 's claim for compensation was heard before a High Court Judge (Mr Justice Girvan) on 13, 14 and 15 June 1995.  In a reserved judgment, the Judge dealt with all the medical evidence and the other issues and, in particular, came to the following conclusion:-

		"In the period after the accident I find on the facts that it would
		be reasonable to assume that he should have been fit for work six
		months from the date of the accident and that after six months he
		could no longer claim benefits related to the consequences of the
		accident."

6.	Before the case was submitted to a Social Security Appeal Tribunal for decision, the Medical Appeal Tribunal was requested by the Department to consider the evidence and -

		"(a)	confirm that the condition which gave rise to the award of 
			benefits listed on the revised certificate of total benefit
			occurred in consequence of the accident on 15.10.90; 

		 (b)	determine the period for which Mr D...  suffered the 
			effects of the relevant accident/injury."

7.	At the oral hearing Miss Finlay submitted that the Social Security Appeal Tribunal was not bound by the finding of the Medical Appeal Tribunal that the injuries suffered by the victim were responsible only for part of the period set out in the revised certificate of total benefit dated 27 November 1995, as it was the responsibility of the Social Security Appeal Tribunal to decide whether or not benefit was paid in consequence of the accident.  Mr R...  submitted that the Social Security Appeal Tribunal was correct to hold that the Medical Appeal Tribunal was binding on the Social Security Appeal Tribunal in light of the wording of Section 94(5) and (12), and in light of the specific wording of the issues put to the Medical Appeal Tribunal.  In addition he submitted that it was relevant that the Medical Appeal Tribunal's decision was also entirely consistent with the decision of Mr Justice Girvan to the same effect.

8.	The Medical Appeal Tribunal's jurisdiction is to determine "medical questions" and these are defined in section 94(12) of the Social Security Administration (Northern Ireland) Act 1992 in the following terms:-

		"(12)  In this section "the medical questions" means -

		(a)	any question whether, as the result of a particular occurrence,
			the victim suffered an injury, sickness or disease; 

		(b)	any question as to the period for which the victim suffered any
			injury, sickness or disease."

	It is noteworthy that the words "in consequence" do not appear in section 94(12).

9.	The Medical Appeal Tribunal was obliged to take into account the decision of Mr Justice Girvan (see Section 94(6)) and, quite clearly from its decision, the Medical Appeal Tribunal did take it into account.

10.	The Social Security Appeal Tribunal took the view that the determination of the Medical Appeal Tribunal was binding on it.  The obvious authority for this is section 94(5) which states:-

		"(5)	If any of the medical questions arises for determination on an
			appeal under this section, the Department shall refer that 
			question to a medical appeal tribunal, whose determination shall
			be binding, for the purposes of the appeal, on any social 
			security appeal tribunal to whom a question is referred under
			subsection (7) below."

11.	However, it is important to look at other legislation which is relevant to this case.  Section 78(1) of the Act states as follows:-

		"78-(1)	A person ("the compensator") making a compensation payment,
				whether on behalf of himself or another, in consequence of
				an accident, injury or disease suffered by any other person
				("the victim") shall not do so until the Department has
				furnished him with a certificate of total benefit and shall
				then -

				(a)	deduct from the payment of an amount, determined in accordance with the certificate of total benefit,
					equal to the gross amount of any relevant benefits
					paid or likely to be paid to or for the victim 
					during the relevant period in respect of that 
					accident, injury or disease;

				(b)	pay to the Department an amount equal to that which is required to be so deducted; and

				(c)	furnish the person to whom the compensation payment is or, apart from this Section, would have been made ("the intended recipient") with a certificate of deduction."

12.	In addition Section 94(1) states as follows:-

		"94-(1)	An appeal shall lie in accordance with this section against
			any certificate of total benefit at the instance of the 
			compensator, the victim or the intended recipient, on the
			ground -

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

				(b)	that benefit paid or payable otherwise than in 
					consequence of the accident, injury of disease in
					question has been brought into account."

13.	Therefore the question to be determined by the Social Security Appeal Tribunal was whether any benefit paid otherwise than in consequence of the accident in question had been brought into account.  The decision of the Medical Appeal Tribunal was that the victim, B… D... , was fully recovered in six months.  The Social Security Appeal Tribunal was not bound by the decision of the Medical Appeal Tribunal in the sense that it was obliged to hold that only such benefit was paid during the period for which the victim suffered injury was paid in consequence of the accident.  That is a legal question to be decided on legal principles in light of the medical and other evidence. 

14.	This distinction between the binding effect of the decision of a Medical Appeal Tribunal to which a medical question arising for determination on an appeal has been referred under the equivalent in Great Britain of section 94(5), and other Medical Appeal Tribunal decisions relating to the same person and injuries, is explained by Mrs Commissioner Heggs in CCR/002/1994 at paragraphs 15 and 16.  In that case benefit paid from 4 March 1989 to 24 July 1991 was held to have been paid in consequence of the accident, even though a Medical Appeal Tribunal had decided that recovery had been complete by 1 January 1991.  In her decision Mrs Commissioner Heggs stated at paragraph 19 as follows:- 

		"It was not for the (Social Security Appeal) tribunal to decide the 
		question of the victim's capacity or otherwise for work but whether 
		benefit paid had been paid in consequence of the accident."  

	The Commissioner decided that benefit paid up to the date 24 July 1991 was paid in consequence of the injury or accident and properly included in the relevant certificate of benefits even though a Medical Appeal Tribunal had decided that the victim was fit for work from 1 January 1991.

15.	The Social Security Appeal Tribunal in this case seems to have assumed, perhaps not surprisingly, in the circumstances, that the decision of the Medical Appeal Tribunal had decided the issue which it should have been deciding.  However it is clear from the decision of CCR/002/1994 that the determination of the Medical Appeal Tribunal does not bind the Social Security Appeal Tribunal when it makes its decision on appeal under section 94(1).  A Social Security Appeal Tribunal has to take into account all relevant facts, including the fact that the victim has at all times claimed that his incapacity is due to the injuries sustained, and that he may have suffered other injuries in 1991, 1992 and 1993 (see the decision of the Medical Appeal Tribunal where there were allegations that the victim was injured in three assaults and one additional road traffic accident).  I would emphasise that it is not for the victim to show that the benefit sought to be recouped was not paid in respect of the accident or in consequence of it.  The burden of proof is neutral and the question simply has to be determined in the light of all the evidence on the relevant issues: see the decision of Mr Commissioner Goodman in CCR/003/1993.

16.	In the circumstances it is inappropriate for me to decide these factual matters.  In light of my findings I conclude that the Social Security Appeal Tribunal decision was erroneous in point of law, I set it aside and I refer the case to another Tribunal to decide the case in accordance with the legal principles set out in this decision.

	(Signed):  J A H Martin
							
	CHIEF COMMISSIONER

	20 February 1998