Decision No:  C1/99(CRS)

	SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

		SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

	COMPENSATION RECOVERY SCHEME

	Appeal by the Compensator to the Social Security Commissioner
	on a question of law from the decision of 
	Belfast Medical Appeal Tribunal
	dated 7 May 1998

	DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	In this case the Compensator appeals against the decision of the Appeal Tribunal which rejected the appeal against a "Certificate of total benefit" pursuant to which £10,086.87 was payable by the Compensator to the Department in respect of benefits paid to the injured person since 1 July 1993 until 3 April 1998.  Leave was granted to appeal by a Commissioner on 30 April 1999.  As there was an obvious error on the face of this determination a corrected determination was issued on 1 November 1999.

2.	I held a hearing on 3 November 1999 at which the Compensator was represented by Mr M… of Counsel, instructed by J Mc… and Son, Solicitors, while the Department was represented by Mrs Fitzpatrick of the Departmental Solicitor's Office.  The injured person neither was present nor was represented.

3.	The background facts are not in dispute.  The injured person was involved in a road traffic accident on 1 July 1993 in which he sustained injuries for which he subsequently claimed compensation.  Arising out of the accident the injured person sustained a fractured forearm and suffered back pain.  He made an application for Sickness Benefit on 6 August 1993 stating that he wished to claim benefit from 1 July 1993 due to "right arm broken".  In support of his claim to this benefit the injured person submitted medical doctor's statements setting out that he was incapable of work due to a broken ulna and back pain.  Sickness Benefit was subsequently awarded to the victim from 6 July 1993 until 13 January 1994, followed by Invalidity Benefit from 14 January 1994 to 12 April 1995 and Incapacity Benefit from 13 April 1995 until 3 January 1996.  On 20 October 1993 the compensator had notified the Compensation Recovery Unit that the injured person was involved in this traffic accident and was claiming compensation.  At the request of the compensator a certificate of the recoverable benefits was issued on 8 October 1997 and a copy sent to the injured person’s representatives.  The Department was subsequently notified on 3 December 1997 that final compensation had been paid to the injured person on 1 December 1997 and that a cheque for £10,086.87 was enclosed in accordance with the certificate.  On 16 December 1997 a letter of appeal was received from the compensator's solicitors.

4.	The Tribunal made the following findings of fact material to its decision:-

		"We adopt as findings the facts as set out at paragraph 5.1 to 5.4 headed "summary of facts" in the appeal papers.

		We find that in the accident of 1.7.93 [the injured person] suffered a soft tissue injury to his back, a fracture of the right ulna.  Cartusions to both knees and soft tissue injury to his chest and an injury to his nose.

		We find that [the injured person] experienced some back symptoms prior to the accident, but was not rendered unfit for work as a result, and a diagnosis of ankylosing spondylitis has been made in relation to the pre-accident condition of his back."

5.	The Tribunal gave the following reasons for its decision:-

		"We are satisfied that the benefits which [the injured person] received from 6.7.93 to 3.3.96 were not paid otherwise than in consequence of the relevant accident.  We reject the contention that he did not injure his back in the accident.  Although there is no specific reference to a back injury in the casualty notes, a reference to a back injury resulting from the accident appears in other histories given by [the injured person].  Notably in Mr W… report of 24.2.97.

		With regard to the contention that after a certain period the back problems could no longer be considered as resulting from the accident but rather from the pre-existing condition, we do not consider that this can be reasonably argued.  There is no clear evidence as to the onset of severity of symptoms associated with the pre-existing condition, such as to allow one to suggest with any degree of certainty when incapacity benefits might have become payable due to it.  Mr W... states that "as time progresses ongoing symptoms will relate to his ankylosing spondylitis rather than to the subject injury.  He also comments that  [the injured person] might have been expected to return to work earlier, even taking this condition into account.

		There is therefore no real evidence that the relevant benefits were not paid in consequence of the accident."

6.	The unanimous decision of the Tribunal was in the following terms:-

		"Appeal disallowed.  The amounts, rates and periods specified in the certificate of recoverable benefits dated 8.10.97 are correct and properly recoverable."

7.	The Chairman made the following record of proceedings:-

		"Copy of GP records produced.

		Miss J...: Advised that she had consent to produce them in connection with the claim road traffic accident 1993.

		Mr S...: First claim re broken right arm - subsequent claims refer to road traffic accident.

		Miss J...: AH 131 (b) - benefits paid otherwise than in respect of accident or injury.  6/7/93 - 7/2/94 - accept those benefits properly recoverable - fractured ulna - this corresponds to attendance at casualty following accident. 22/10/93 - 4 week certificate - no diagnosis.  Tribunal not concerned with incapacity for work.  

		11/4/94 - 1/3/96 - in dispute.  Refer to back pain, road traffic accident. General Practitioner notes - casualty admission note 1/7/93 - no mention of a back injury in casualty notes c/o chest pain - ankles.  GP hand written notes 29/9/93 "still pain in back? 	Whether back pain was related to accident at all? Stronger argument - during course of claim examined by Mr W... and Mr M... - pre-existing condition of Ankylosing Spondylitis.  Mr W... -refers to pre-existing condition - at very least it is clear in October 1995 he should have recovered 11/10/95 "back injury".

		30/1/96 - Rheumatism from the very least not result of accident.

		Mr S... - Certificate 17/2/94 - ran for 8 weeks - first certificate is 11/4/94 in relation to back condition.  No-one had anything to add."

	(The Miss J... referred to in the record of proceedings was the compensator's solicitor while the Mr S... referred to was the representative of the Compensation Recovery Unit.)

8.	At the hearing before me Mr M... confined his argument to one specific point and therefore, in the circumstances, I do not intend to deal with all the issues which were set out in writing in the application for leave to appeal and in the observations on the appeal.

9.	Mr M... submitted that the Tribunal erred in law in its reasons for decision in concluding as follows:-

		"With regard to the contention that after a certain period the back problems could no longer be considered as resulting from the accident but rather from the pre-existing condition, we do not consider that this can be reasonably argued."

	He submitted that the Tribunal erred by dismissing without proper reasons the compensator's argument that the injured person was suffering after a certain period from medical problems which did not arise from the accident.  He submitted that the injured person was properly compensated for his injuries for a year after the accident.  However he submitted that the period after this one year period was very much in dispute.

10.	The medical evidence from Mr M... and from Mr W... clearly states that the injured person is suffering from a pre-existing condition in his spine known as Ankylosing Spondylitis.  However this condition was not diagnosed until about 4 October 1995. After that date the plaintive of course still had a valid claim to benefits.  However the two consultant surgeons have agreed that the period of work as a result of the accident was in the region of 6 to 12 months (see Mr W...'s report dated 24 February 1997 at page 4 and Mr M...'s report dated 10 November 1997 at page 2.)  It is also noteworthy that the medical certificates provided by the injured person's General Practitioner refer to the diagnosis of the injured person’s disorder on 6 December 1995 for a period of eight weeks as "Ank. Spond." and that a similar certificate dated 30 January 1996 also for a period of eight weeks describes the diagnosis of the injured person's disorder as "Rheumatism".

11.	The Tribunal has, in its reasoning, drawn attention to the fact that it is very difficult to give a specific date when the pre-existing condition of Ankylosing Spondylitis becomes the reason for Incapacity Benefit to become payable (see the second sentence of the second paragraph of the Tribunal's reasons for decision set out at paragraph 5 set out herein).  However, because it is difficult to be exact in deciding when the incapacity is no longer related to the accident, that is no reason why the Tribunal should not do its best to ascertain an appropriate date.  As Mr M... pointed out, Courts and Tribunals on a daily basis have to make similar estimates.  In addition the Tribunal, exercising its inquisitorial function, is in a position to obtain further relevant evidence to assist it in deciding such an issue.

12.	In my view it is important to remember that the issue before the Tribunal was one of causation, not one of incapacity.  In light of the medical evidence it seems to me that whilst the injured person remained incapacitated for a considerable period, the reason for the incapacity gradually changed from being related to the accident to being related to the condition of Ankylosing Spondylitis.  It seems to me that the Tribunal has not considered this issue or, if it did consider it, it did not decide the issue because it found that it would be difficult to assign the change from one cause to another to a specific date.  In not so doing I find that the Tribunal has erred in point of law.  

13.	Mrs Fitzpatrick submitted that the reports of the two consultants, Mr M... and Mr W..., were clearly considered by the Tribunal.  The Tribunal had the complete medical history of the injured person.  The Tribunal also specifically considered Ankylosing Spondylitis.  In the circumstances Mrs Fitzpatrick submitted that the Tribunal was perfectly entitled to come to the conclusion that it came to.  In particular Mrs Fitzpatrick relied on the fact that the Tribunal particularly noted that Mr W... had stated that "as time progresses ongoing symptoms will relate to his Ankylosing Spondylitis rather than to the subject injury", which, in her submission, shows that the Tribunal was relying on Mr W...'s findings that only in the future will the injured person's symptoms relate to the Ankylosing Spondylitis.

14.	Mr M... submitted that this sentence must be read in the context that the rest of the report suggests that Mr W... was surprised that the injured person had not returned to work within 12 months of the accident.

15.	I conclude that these respective submissions are not conclusive one way or the other but it seems to me that the reasons given by the Tribunal do not deal with the issue that has arisen, namely, that at some stage the injured person's condition has not been caused by the accident but by the pre-existing condition of Ankylosing Spondylitis which has been gradually progressing over a period of years.  

16.	My conclusion is that the Tribunal has erred in law by not dealing with the issue that the injured person's present medical problems might no longer be due to the accident but rather to the pre-existing condition, and, in particular, by dismissing the contention as not being reasonably arguable.  I appreciate that it is difficult for a Tribunal to decide, in a case such as the present one, the specific date that medical problems could no longer be considered to result from an accident.  However, as stated earlier in this decision, the Tribunal has an inquisitorial role which can be assisted by further medical evidence.

17.	At one stage the Compensator’s solicitors also stated that they were taking the point that the Tribunal had misapplied the law in a significant fashion in deciding that at paragraph 1 of the Tribunal’s reasons for its decision that “we are satisfied that benefits which [the injured person] received from 6 July 1993 – 3 March 1996 were not paid otherwise than in consequence (my emphasis) of the relevant accident”.  In addition at paragraph 3 of the Tribunal’s reasons it stated that “there is therefore no real reason that the relevant benefits were not paid in consequence (my emphasis) of the accident”.  The legislation applicable at the time was set out in article 13(1)(b) of the Social Security (Recovery of Benefit) (Northern Ireland) Order 1997, which states that the appropriate test is whether listed benefits have been or are likely to be paid “otherwise than in respect (my emphasis) of the accident”.  Previous legislation, namely section 94(1) of the Social Security Administration (Northern Ireland) Act 1992, referred to the phrase “in consequence”.  There may be a difference in meeting between to the two phrases but Mr M... specifically did not rely on any such point at the hearing, presumably because he considered that it did not have any direct relevance to the circumstances of the present case.  Accordingly I do not propose to develop the point in this decision.  However, it is noteworthy that Mann CJ stated in Trustees Executors & Agency Co. Ltd v Reilly [1941] VLR 110 at 111 (quoted by Boreham J with approval in Paterson v Chadwick [1974] 1 WLR 890 at 893): -

	“The words ‘in respect of’ are difficult of definition, but they have the widest possible meaning of any expression intended to convey some connection or relation between the two subject matters to which the order refers.”  

18.	The apparent delay in producing a decision in the present case was occasioned by the fact that, with the parties’ representatives’ knowledge and without any objection, I awaited the decision of the Court of Appeal in Eagle Star Insurance v The Department for Social Development (on appeal from C6/99(CRS)) and also a Great Britain Tribunal of Commissioners’ case (CCR 6524/99, CCR 2539/00 and CCR 3012/00).  However, when the judgment of the Court and the decision of the Tribunal were made available in 2001, the parties’ representatives involved in the present case did not suggest that they had any direct relevance to the issues in the present case.

19.	For the reasons stated I conclude that the Tribunal decision was erroneous in point of law.  Therefore I allow this appeal.  In the circumstances I set the decision aside and refer the case back to another Tribunal to rehear the case.  By the time the appeal is re-heard there may be a decision of a Northern Ireland Commissioner available, made after full argument, on the meaning of the words “in respect of the accident” and the Tribunal should bear this in mind when coming to its decision.

(Signed) JOHN A H MARTIN QC
					
CHIEF COMMISSIONER

10 SEPTEMBER 2001