CCR/004/1993

Social Security and Child Support Commissioners 
SOCIAL SECURITY ADMINISTRATION ACTS 1975 TO 1990
SOCIAL SECURITY ADMINISTRATION ACT 1992
CLAIM FOR COMPENSATION RECOVERY
DECISION OF THE SOCIAL SECURITY COMMISSIONER
 
MR COMMISSIONER M J GOODMAN
Tribunal :
Tribunal Case No :
 
1. I allow the Secretary of State's appeal against the decision of the social security appeal tribunal dated 17 December 1992 as that decision is erroneous in law and I set it aside. I remit the case for rehearsing and re-determination, in accordance with the directions in this decision, to an entirely differently constituted social security appeal tribunal: Social Security Administration Act 1992, section 98(11).

2. This is an appeal by the Secretary of State against the unanimous decision of a social security appeal tribunal dated 17 December 1992, as follows:
"1. The amounts of Statutory Sick Pay, Invalidity Benefit and Reduced Earnings Allowance paid to [the victim of an accident on 9 January 1990] during the relevant period 10 January 1990 to 19 June 1992 are recoupable from his compensation [payment] as follows:
(a) Statutory Sick Pay for the period 10 January 1990 to 17 July 1990 of £1,470. 
(b) Invalidity Benefit for the period 18 July 1990 to 17 April 1991, the actual amount to be re-calculated by the Adjudication Officer.
(c) 2% of Invalidity Benefit for period 18 April 1991 to 19 June 1992.
(d) Reduced Earnings Allowance for the period 28 July 1990 to 19 June 1992".

3. The appeal was the subject of an oral hearing before me on 3 August 1995 at which the Secretary of State was represented by Mr C Blake of the Office of the Solicitor to the Departments of Health and Social Security. The victim (a man born on 11 December 1928) was present and was represented by Mr R Ascough of the GMB Trade Union. I am indebted to all of those persons for their assistance to me at the hearing.

4. The Secretary of State's appeal is on the ground that the tribunal erred in law in sub-paragraph (c) of their decision where they purported to make part of the recoupable benefit payable to the Secretary of State "2% of Invalidity Benefit for the period 18 April 1991 to 19 June 1992". They did this because a medical board had found that, because of the claimant's pre-existing pre-accident condition (problems with his knees), only 2% disability was from 24 April 1990 attributable to the accident. The Secretary of State's grounds of appeal are contained in a letter dated 1 February 1993 reading as follows:
"The relevant legislation [Part IV (sections 88-104) of the Social Security Administration Act 1992 - "the 1992 Act"] provides that the benefit recoverable is that paid 'in respect of' or 'in consequence of' the accident but does not provide expressly or by implication for a proportion of the whole of the benefit so paid to be recovered. (Sections 82 and 98(1) Social Security Administration Act 1992). The legislation does provide for the 'Certificate of Total Benefit' to specify the 'amount which has been...... paid....... by way of any relevant benefit......'. This strongly suggests that it is the whole of the amount paid for the period in question that is recoverable or is not and that no apportionment is lawfully possible (section 84(2)(a) of the above Act)".
5. It was common ground at the hearing before me that the Secretary of State's ground of appeal was correct and I so hold. There is no provision in the legislation for apportionment of this kind. Either all of the relevant benefit is recoupable or none of it, depending on whether or not it is "...... paid or likely to be paid to or for the victim during the relevant period in respect of [the] accident, injury or disease" (section 82(1)(a)) - my underlining.

6. The tribunal had given as one of their reasons for decision, "After 9 months from the accident we accept that it was [the victim's] arthritic condition which prevented his working". If in fact that is the position (and the new tribunal will need to take all the medical and other evidence into account on this point) then no benefit would recoupable for any date after nine months from the accident unless there was still some contribution by the accident to the circumstances on which was based the continuance of invalidity benefit. Those are matters which are entirely for the new tribunal to decide being essentially questions of fact and not "medical questions" referable to a medical appeal tribunal (see section 98(5)(12) of the 1992 Act and a "starred" decision on Commissioner's file CCR/002/94).

7. I should record at this point that Mr Blake was prepared to take me through all the medical evidence including the doctor's statements but I indicated that I thought that it was not appropriate for the Commissioner to deal with this particular matter and that it should be dealt with by a new social security appeal tribunal. That tribunal is in no way bound by the finding of the original tribunal as to the limitation of the results of the accident to nine months. I should record that Mr Blake would have wished to argue before me that in fact it was doubtful whether the totality of the medical evidence in fact showed that result. But no doubt the victim and his representative will wish to develop these matters fully before the new tribunal and to attempt to sustain their contention that on the medical evidence all the results of the accident, so far as relevant benefit is concerned, had terminated once nine months had elapsed from the date of the accident. As I have already indicated I regard these as factual matters which are pre-eminently for the new tribunal to decide. When dealing with the actual calculations the new tribunal will wish to note that £1,470 statutory sick pay was taken into account. I note that regulation 2(3) of the Social Security (Recoupment) Regulations 1990, SI 1990 No 322 contains detailed provisions as to the calculation of statutory sick pay for recoupment purposes. The new tribunal will wish to ensure that these provisions have been properly applied. See also the Statutory Sick Pay Act 1994 (Consequential) Regulations 1994, SI 1994 No 730.

8. I now turn to the other matter that was in issue at the hearing before me on 3 August 1995, ie the fact that, only after the victim had made his appeal to the social security appeal tribunal, did the Department ascertain that as well as the invalidity benefit and statutory sick pay which was included in the Certificate of Total Benefit dated 10 June 1992 the claimant had also been in receipt of £3,255.22 reduced earnings allowance (because his accident arose out of and in the course of his employment). It was submitted by the presenting officer to the original tribunal that this additional sum should also be taken into consideration as being potentially recoupable. The tribunal directed that there should be taken into account "reduced earnings allowance for the period 28 July 1990 to 19 June 1992. At the hearing before me, I queried whether in fact it was possible for the Secretary of State, on an appeal to a tribunal by the victim, to increase the demand for recoupment in respect of a different benefit not covered by the Certificate of Total Benefit. This matter was not dealt with in detail by the original tribunal, as it appears that this particular matter was conceded.

9. However, at the hearing before me I drew attention to section 97 of the 1992 Act dealing with "Review of Certificates of Total Benefit", which provides as follows:
"97. (1) The Secretary of State may review any Certificate of Total Benefit if he 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 Secretary of State may either:
(a) confirm the certificate, or
(b) issue a fresh certificate containing such variations as he considers appropriate,
but he shall not so vary the certificate so as to increase the total benefit". (My underlining).

10. The question is, therefore, whether the Secretary of State can add items to the recoupable sum at the stage when a victim appeals to a social security appeal tribunal. Can the Secretary of State 'impose' an increase which he could not impose on a review? Mr Blake submitted that the Secretary of State could bring this matter to the attention of the social security appeal tribunal and that the tribunal must take it into account. Mr Ascough submitted that this was not possible nor fair because the compensation will have paid the net compensation to the victim in reliance on the original Certificate of Total Benefit and there should therefore be a form of 'estoppel' in such a case. The Secretary of State should not, he contended, be permitted to add to the Certificate of Total Benefit on an appeal by the victim.

11. Mr Blake drew attention to the fact that a Certificate of Total Benefit lasts only for a limited time (see section 84(5) of the 1992 Act) after which time the Secretary of State can issue a fresh Certificate which could include the omitted benefit or sum. That may well be so but it is not what occurred here. There was only the one Certificate of Total Benefit issues on 10 June 1992 which stated that it was valid for eight weeks until 31 July 1992, ie it had expired before the tribunal's hearing on 17 December 1992. However no fresh Certificate of Total Benefit was issued and the matter therefore proceeded to the tribunal on the basis of the appeal against the original Certificate of Total Benefit, which did not include the reduced earnings allowance.
12. Mr Blake also drew attention to the provisions, as to appeals and recovery in consequence of an appeal, of sections 98 and 99 of the 1992 Act. Section 98(1) of the Act provides as follows:
"98. (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 or disease in question has been brought into account".
It is also provided by section 98(2) that no appeal can be brought until the compensation payment has actually been made.

13. Section 99 of the 1992 Act, of which the marginal note is "Recovery in consequence of an appeal" reads as follows:
"99. (1) Where it appears, in consequence of an appeal under section 98 above, that the aggregate amount of the relevant payment or payments actually made exceeds the amount that ought to have been paid, the Secretary of State shall pay the intended recipient an amount equal to that excess.
(2) Where it appears, in consequence of such an appeal, that the aggregate amount of the relevant payment or payments actually made is less than the amount that ought to have been paid, the intended recipient should pay the Secretary of State an amount equal to the deficiency.
(3) With prejudice to any other method of enforcement, an amount payable under subsection (2) above may be recovered by deduction from any benefits which are prescribed benefits for the purposes of section 71 [recovery of overpayments] above".

14. Subsections (2) and (3) of section 99 clearly therefore contemplate that if, even after the compensation payment has been made to the intended recipient (ie the victim in this case - see section 82(1)(c), it appears on the victim's appeal that too little has been paid by way of recoupment to the Secretary of State, the Secretary of State can recover the deficiency eg by deduction from other benefits payable to the victim. This is a somewhat strict provision because (i) the compensator and the victim will have settled the matter in good faith on the basis of the Certificate of Total Benefit and (ii) the Secretary of State could not review the Certificate so as to increase the total benefit payable (section 97).

15. After the hearing was concluded, I issued a Direction requiring written submissions from the parties on the following point:
".... is the tribunal's power (under sections 98(8) and 99(2) of the Social Security Administration Act) to hold a greater sum to be recoupable, confined to the matters under appeal (see section 98(1), ie whether the benefits specified in the Certificate of Total Benefit are correct in amount etc (s 98(1)(a)) or are "in consequence of "the accident etc (s 98(1)(b))? If this is so, can the tribunal be asked to take into account a benefit not specified in the Certificate of Total Benefit"?

16. In response to that Direction, written submissions were put in by the parties, which unfortunately due to an administrative error, have been put before me only very recently. A submission dated 25 September 1995 was put in by M Blake, on behalf of the Secretary of State, contending that the answer to the question in the final sentence of my Direction (para 15 above) was in the affirmative, giving as reasons:
"(a) It would anomalous if the amount of, say, income support claimed could be increased by any sum at all appropriate.... but not even one penny of some other benefit could.... be so claimed at the appellate stage.
(b) The wording of section 98, when read as a whole, supports [the].... view that there is no distinction between an appeal against a certificate of total benefit that specifies one Benefit only and one that specifies several. The matter is at large before the tribunal. This follows from the grant to the tribunal of the power to reopen the certificate on any ground by which it might be incorrect as specified in sub-section 1(a) and (b)".

17. Also in response to my direction, Mr Ascough, on behalf of the "victim" made a detailed written submission (dated 26 September 1995) stressing (i) that section 98(1) of the 1992 Act gives no right of appeal to the Secretary of State (ii) that section 98(7) refers to a question that the Secretary of State must refer to a tribunal as ".... Concerning any rate, amount, or periods specified in the Certificate of Total Benefit....". (My underlining). The submission also contends that "... The appeal is not an opportunity for the Secretary of State to revisit the matters set out in the Certificate de novo".
18. I have ultimately concluded that Mr Blake's submission [para 16 above] is correct and that there applies the general principle that all matters can be reopened on an appeal to a social security appeal tribunal. "Benefit" is defined by section 81(1) of the 1992 Act as "any benefit under the Contributions and Benefits Act except child benefit....". I consider it artificial to regard in isolation the reduced earnings allowance in this case. It was simply part of the overall total of social security benefit paid to the claimant and it was within the tribunal's power to take it into account as relating to the "amount" (s 98(1) and (7)) specified in the Certificate of Total Benefit. In principle, therefore, it must be taken into account by the new tribunal, subject only to any question as to its calculation. Clearly, it was paid "in consequence of "the accident (s 98(1)(b).
 
M.J. Goodman
Commissioner 
5 February 1996