Department for Communities-v-PSNI (CRS) [2018] NICom 7

Decision No:  C1/17-18(CRS)

DEPARTMENT FOR COMMUNITIES v POLICE SERVICE OF NORTHERN IRELAND
INJURED PERSON: MRS G I

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

COMPENSATION RECOVERY SCHEME

Application by the Department for leave to appeal
and appeal to a Social Security Commissioner
on a question of law from a Tribunal’s decision
dated 14 July 2016

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is the Department’s application for leave to appeal from the decision of an appeal tribunal sitting at Belfast on 14 July 2016. 

2.	For the reasons I give below, I grant leave to appeal. I allow the appeal and I set aside the decision of the appeal tribunal.  I determine the appeal myself without making fresh findings of fact. I find that the amount of recoverable benefit is £21,931.84. 

	Background

3.	The injured person had claimed compensation from the Police Service of Northern Ireland (PSNI) in respect of psychiatric injury allegedly caused in the course of her employment.  Her claim was settled for a payment of damages amounting to £25,000.  The injured person had received incapacity benefit (IB) from the Department of Social Development (the Department) from 23 June 2002 to 22 June 2007.  The Compensation Recovery Unit (CRU) of the Department sought recovery of the sum of £21,931.84 in respect of the IB paid to the injured person during this period. The PSNI appealed. 

4.	The appeal was heard by a tribunal consisting of a legally qualified member (LQM) and a medically qualified member.  The tribunal allowed the appeal in part, reducing the amount of the recoverable benefit to 50% of £21,931.84, or £10,965.92.  The Department sought a statement of reasons for the tribunal’s decision, which was issued on 30 November 2016.  The Department sought leave to appeal from the tribunal’s decision, but by a decision issued on 7 February 2017 the LQM refused leave to appeal.  On 3 March 2017 the Department applied to a Social Security Commissioner for leave to appeal. 

	Grounds

5.	The Department submits that the tribunal has erred in law on the grounds that:

		(i) it had made an irrational decision in holding that the injured person had been paid IB other than in respect of the subject accident, injury or disease;

		(ii) it had failed to resolve contradictions in evidence;

		(iii) it misdirected itself in law by finding that only 50% of the amount of IB paid to the injured person was recoverable. 

6.	The PSNI was directed to make observations in response to the Department’s grounds.  The PSNI responded, represented by the Crown Solicitor.  The PSNI submitted that the tribunal had not erred in law as alleged and supported the decision of the tribunal. 

7.	The Department was invited to reply to the PSNI’s submissions.  The Department maintained that the tribunal had erred in law as alleged. 

	Relevant Legislation

8.	The Social Security (Recovery of Benefits) (NI) Order 1997 (“the 1997 Order”) provides the legal framework for the Department to recover the amount of specified benefits paid to a claimant arising from an accident, injury or disease, from any compensation payments made to the claimant in respect of the same accident, injury or disease.

9.	Article 3 of the Order provides:

‘3.—(1) This Order applies in cases where—

(a) a person makes a payment (whether on his own behalf or not) to or in respect of any other person in consequence of any accident, injury or disease suffered by the other, and

(b) any listed benefits have been, or are likely to be, paid to or for the other during the relevant period in respect of the accident, injury or disease.

(2) The reference in paragraph (1)(a) to a payment in consequence of any accident, injury or disease is to a payment made—

(a) by or on behalf of a person who is, or is alleged to be, liable to any extent in respect of the accident, injury or disease, …’

	By Article 6, the Order makes provision for the relevant amount of benefit to be certified in a certificate of recoverable benefit and makes provision for such a certificate to be issued.

‘6.—(1) Before a person (“the compensator”) makes a compensation payment he shall apply to the Department for a certificate of recoverable benefits.

(2) Where the compensator applies for a certificate of recoverable benefits, the Department shall—

(a) send to him a written acknowledgement of receipt of his application, and

(b) subject to paragraph (7), issue the certificate before the end of the following period.

(3) The period is—

(a) the prescribed period, or

(b) if there is no prescribed period, the period of four weeks, which begins with the day on which the application is received.
	…’

	By Articles 7 and 8 of the Order, the certificate is required to contain information regarding the amount of the recoverable benefit and the compensator is made liable to pay the Department an amount equal to the total amount of the recoverable benefits.

‘7.—(1) A certificate of recoverable benefits shall specify, for each recoverable benefit—

(a) the amount which has been or is likely to have been paid on or before a specified date, and

(b) if the benefit is paid or likely to be paid after the specified date, the rate and period for which, and the intervals at which, it is or is likely to be so paid.
…
8.—(1) A person who makes a compensation payment in any case is liable to pay to the Department an amount equal to the total amount of the recoverable benefits.’

By Article 13, the Order makes further provision for a right of appeal against a certificate on certain grounds. 

‘13.—(1) An appeal against a certificate of recoverable benefits may be made on the ground—

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

	(b) that listed benefits which have been, or are likely to be, paid otherwise than in respect of the accident, injury or disease in question have been brought into account,

	(c) that listed benefits which have not been, and are not likely to be, paid to the injured person during the relevant period have been brought into account, or

	(d) that the payment on the basis of which the certificate was issued is not a payment within Article 3(1)(a)’

	The tribunal’s decision

10.	The tribunal considered documentary evidence in the Department’s submission and heard oral submissions from counsel on behalf of the compensator.  The tribunal was told that a claim had been settled on the basis of work related stress at a specific workplace.  It was submitted that there had been two other factors raised in the evidence, namely post-natal depression and post-traumatic stress disorder.  It was submitted that the evidence in the case suggested that the injured person’s illness was 50% due to pre-existing vulnerabilities. 

11.	The tribunal noted that the Department submitted that the injured person claimed IB as a result of occupational stress, for which she successfully claimed compensation from the PSNI.  It noted that in a report of 26 September 2003, the injured person’s GP diagnosed post-traumatic stress disorder, exacerbated by anxiety-induced work related stress.  It noted that a consultant psychiatrist had considered that the injured person suffered from double depression – depressive episodes on top of an underlying neurosis that had been caused by exposure to trauma.  It noted that the Department submitted that the injured person’s time in the police was an effective cause of her successful claim to IB.  The tribunal noted that the PSNI submitted that there were a number of causes of the injured person’s mental disorder and observed the report of a second consultant psychiatrist concluding that 50% of her mental disorder was due to a pre-existing constitutional vulnerability. 

12.	The tribunal found that the evidence did not confirm that the extent of the injured person’s condition was a direct result of her time spent in the PSNI.  It particularly relied upon the report of the second consultant psychiatrist and found that “the pre-existing constitutional vulnerability is 50%”. It measured the recoverable benefits at 50% of £21931.84, i.e. £10,965.92 on this basis.  

	Hearing

13.	I held an oral hearing of the application. The Department was represented by Mr Smith of Decision Making Services (DMS).  The PSNI was represented by Ms Lunny of counsel, instructed by the Crown Solicitor. I am grateful to the representatives for their assistance. 

14.	At the outset of the application hearing, the parties confirmed their consent to me proceeding to treat the application as an appeal in the event that I might grant leave. 

15.	Mr Smith referred to the legal basis for liability of the PSNI to pay the Department an amount equal to the sum of the recoverable benefits paid to an injured party.  He submitted that the tribunal had made a perverse finding that benefit had been paid otherwise than in respect of the accident injury or disease for which the injured party had been compensated.  He observed that there had been evidence of post-natal depression in 1997 which had resolved. He observed that there had been evidence of traumatic events between 1990 and 1995 which had grounded a claim in respect of post-traumatic stress disorder.  He submitted that this had not been accepted by the PSNI and was not compensated. 

16.	He submitted that the tribunal accepted that the compensation was agreed on the basis of work-related stress at a particular work location from 1998 to 2002.  The injured party’s compensation claim had been for general damages in respect of her illness and special damages for loss of earnings.  She claimed IB on 16 July 2002, submitting sick lines which indicated stress and depression as the certified cause of incapacity for work.  He submitted that there was no evidence on which the tribunal could base its conclusion that the IB had been paid other than in respect of the accident, injury or disease for which the injured person was compensated. 

17.	Mr Smith referred to the decision of Commissioner Brown in R1/06(CRS). He submitted that the tribunal had failed to follow the correct interpretation of the law implied by that decision and thereby erred in law. 

18.	Mr Smith further submitted that the tribunal erred in law by placing weight on a report of Dr Best, consultant psychiatrist.  He submitted that while it may have had a bearing on the outcome of the claim for compensation, it had no part to play in determining entitlement to IB. 

19.	Ms Lunny relied on the written submission of the PSNI submitted in advance of the hearing in response to Mr Smith.  She sought to distinguish R1/06(CRS), and another case which I decided, C1/12-13(CRS), which had been relied upon by Mr Smith.  She relied on Eagle Star Insurance v Department for Social Development [2001] NICA 4. 

20.	It was submitted by the PSNI that the causes of the injured person’s condition were multi-factorial, referring to the medical evidence.  She relied on the report of Dr Best in showing that the IB paid was not entirely attributable to the injured party’s work.  It was submitted that the tribunal had made a safe and legally sound decision. 

	Assessment 

21.	The Department establishes an arguable case that the tribunal has erred in law and I grant leave to appeal.  With the consent of the parties, I proceed to treat and determine the application as if it were the appeal. 

22.	The question before me is whether the tribunal has correctly applied the principles of Article 3 and Article 8 of the 1997 Order to this case. Paraphrasing the legislation, this means that it had to decide:

(a)	whether the PSNI made a payment to the injured person in consequence of any accident, injury or disease suffered by the other; and

(b)	whether IB was paid to the injured person during the relevant period in respect of the accident, injury or disease. 

23.	If so, this meant that the person who made a compensation payment was liable to pay the Department an amount equal to the total amount of the IB.

24.	The evidence showed that the injured party claimed a total of £737,873.88 general damages and special damages (including loss of earnings) by reason of negligence and breach of statutory duty by the PSNI.  Her claim for general damages included a claim for compensation for personal injury arising from post-traumatic stress disorder arising from shootings, explosions, attendances at crime scenes, RTA scenes and the deaths of colleagues, occurring between 1990 and 1995.  The claim included compensation for further psychiatric injury for work related stress from excessive workload and lack of support in the Holmes Unit of Gough Barracks from 1998 to 2002.  The tribunal heard an oral submission from the representative of the PSNI at hearing that the PSNI settled the case for compensation of £25,000 in respect only of the work related stress from 1998 to 2002. 

25.	The tribunal considered the medical reports before it. Some of these were evidently prepared for the purposes of the civil proceedings.  The tribunal placed particular weight on the report of Dr Best, consultant psychiatrist on the injury party’s condition, dated 5 February 2014, where he said that:

“there was a constitutional vulnerability contributing to her development of mental disorder.  It is hard to put a figure on what percentage of her mental disorder is due to personal vulnerability and how much is due to the stress of her work as a police officer.  For what it is worth I would estimate that 50% of her mental disorder is due to vulnerability and 50% is due to the distressing work as a police officer and the distressing busy period in the Holmes Unit”. 

26.	The injured party, as stated by Mr Smith, claimed IB from July 2002 submitting a medical certificate from her GP which indicated “stress/depression” as the diagnosis of the disorder causing her absence from work. Subsequent certificates referred variously to “stress/depression”, “depression/stress”, “work-related stress” and “stress”. 

27.	The PSNI made payment of compensation to the injured party which was confined to personal injury arising from her working conditions in the Holmes Unit.  It may well be that the quantum of the damages was reduced by reason of the opinion of Dr Best that only 50% of her mental vulnerability was due to the injured party’s work as a police officer in the Holmes Unit. 

28.	The injured party then claimed IB, and on all the medical certificates before the tribunal, the cause of incapacity was certified as including stress.  The tribunal’s reasoning in reducing the amount of the recoverable benefits was that 50% of the condition was due to the “pre-existing constitutional vulnerability”.  However, I consider that it erred in adopting that approach. 

29.	The relevant question was whether the IB was paid in respect of “the accident, injury or disease” – i.e. that mental condition which arose from the injured party’s employment between 1998 and 2002 and led to the award of compensation.  The medical certificates establish prima facie that this was the case.  In order to hold that IB was not so paid, it would be necessary to make a finding that IB was paid otherwise than for that mental condition.  This is a black and white question which does not permit compromise.  The tribunal sought to introduce compromise by attributing 50% of the paid IB to the accident, injury or disease and 50% to her pre-existing constitutional vulnerability.  In order to ground a finding that IB was paid otherwise than in respect of the relevant “accident, injury or disease”, it would have been necessary to find that IB was paid only in respect of the pre-existing constitutional vulnerability. However, there was no evidence to suggest that the injured party was paid IB in respect of this vulnerability. Indeed, she was working from 1998 to 2002 despite the pre-existing vulnerability, leaving work only when the stress which arose from her employment between 1998 and 2002 became a factor. 

30.	The legislation, it appears to me, does not permit a tribunal to reduce the amount of recoverable benefit on the basis adopted by the tribunal. If work related stress was a factor leading to the injured party being paid IB, then IB was paid in respect of it.  I consider that, by finding that 50% of the IB was not paid in respect of the mental condition incurred from 1998 to 2002 for which compensation was paid, the tribunal has decided the case irrationally and has misdirected itself as to the law. I consider that I must allow the Department’s appeal. 

31.	I set aside the decision of the appeal tribunal. I make the decision which the tribunal should have made, namely that the amount of recoverable benefit in this case is £21,931.84. 

	(signed) O Stockman

	Commissioner

	20 March 2018