THE SOCIAL SECURITY COMMISSIONERS

Commissioner’s Case No: CCR/3396/2000

SOCIAL SECURITY (RECOVERY OF BENEFITS) ACT 1997
SOCIAL SECURITY ACT 1998

APPEAL FROM A DECISION OF AN APPEAL TRIBUNAL ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER
MR COMMISSIONER JACOBS

Decision:
1.	My decision is as follows. It is given under section 14(8)(a)(ii) of the Social Security Act 1998.
1.1.	The decision of the Birmingham appeal tribunal, held on 2nd March 2000, is erroneous in point of law.
1.2.	I set it aside, make findings of fact and give the decision appropriate in the light of them.
1.3.	I find these facts. The claimant suffered a road traffic accident on 1st October 1993. Following that accident and as result of it, she suffered giddy spells that reduced her mobility as set out in the opinion of the examining medical practitioner. Disability living allowance was paid on the basis of that disablement. 
1.4.	My decision is that I confirm the amounts, rates and periods specified in the certificate of recoverable benefits dated 17th June 1998 under section 12(4)(a) of the Social Security (Recovery of Benefits) Act 1997.
The appeal to the Commissioner
2.	This is an appeal to a Commissioner in a compensation recovery case. It is brought against the decision of the appeal tribunal with the leave of a district chairman. The first respondent is the insurance company compensator and the second respondent in the injured person. Neither respondent has participated in this appeal, although they have had the opportunity to do so. (As I did not hold an oral hearing, I am not sure that, under the Child Support Commissioners (Procedure) Regulations 1999, the injured person was a party to the proceedings before me.)
The history of the case
3.	The injured person suffered a road traffic accident on 1st October 1993, when she swerved and fell off her bicycle in order to avoid an oncoming car. She claimed and was awarded a disability living allowance consisting of both the care and mobility components. She claimed compensation from the car driver, who was insured by the first respondent. The claim was settled and the Secretary of State issued a certificate of recoverable benefits. It contained both components of the disability living allowance award. The first respondent appealed against the certificate. Its grounds were set out by its solicitor:
‘It is our submission, therefore, that there is insufficient evidence to confirm a direct link between the award of benefits to this Plaintiff and the injuries sustained for which compensation was awarded and that these [there?] should be a full or partial reduction. We would respectfully suggest that if there is any doubt in this matter the benefit of it should be resolved in favour of our clients …’
4.	The tribunal allowed the appeal. 
The benefit of the doubt
5.	There is no scope for the benefit of a doubt to be given to anyone. The standard of proof is the usual civil standard of the balance of probabilities.
The legislation
6.	This case is governed by the Social Security (Recovery of Benefits) Act 1997.
The tribunal’s jurisdiction 
7.	The tribunal had jurisdiction to determine the issue raised by the appeal under section 1(1)(b):
	‘An appeal against a certificate of recoverable benefits may be made on the ground-
(b)	that listed benefits which have been … paid otherwise than in respect of the accident … in question have been brought into account’.
8.	If the tribunal allowed the appeal, the order it could give was specified by section 12(4)(b):
	‘On an appeal under section 11 an appeal tribunal may …-
(b)	specify any variations which are to be made on the issue of a fresh certification [of recoverable benefits] …’
The structure of the legislation
9.	In simple terms, the structure of the legislation is this. A person (the compensator) who agrees to pay compensation to another (the injured person) for an accident, injury or disease has to apply to the Secretary of State for a certificate of recoverable benefit before making the payment: section 4(1). Usually that person will be an insurer. The certificate sets out the amounts and periods for which particular benefits have been paid in respect of the accident, injury or disease: section 5(1). 
10.	The legislation governs the relationship between the compensator and (a) the Secretary of State and (b) the payee. As against the Secretary of State, the compensator must pay the total amount of the recoverable benefit to the Secretary of State ‘in any case’: section 6(1). As against the injured person, the compensator may in certain circumstances reduce the amount of the payment: section 8. That only operates between specified heads of compensation and particular benefits or components of benefit as set out in Schedule 2. So, for example, the amount of the mobility component of disability living allowance can be deducted from the compensation for the loss of mobility. Depending on the circumstances, the compensator may have to pay more to the Secretary of State than can be recouped from the payment agreed with the injured person.
The tribunal’s jurisdiction 
11.	An appeal tribunal does not have jurisdiction over all these issues. In particular, it does not have jurisdiction over the relationship between the compensator and the injured party. The tribunal’s jurisdiction is limited by section 11 and 12 to the validity and content of the certificate. In other words, its jurisdiction is limited to the amount that the compensator has to pay to the Secretary of State. It has no jurisdiction to deal with the separate issue of how much the compensator has to pay to the injured person.
12.	In this case, the tribunal’s decision notice records:
	‘[The injured person] did not claim anything in her court action for loss of mobility. The operation of s.8 and Sch 2 to the Recovery of Benefits Act 1997 applies and so the mobility component of DLA is not recoverable.’
13.	In the full statement of the tribunal's decision, section 8 and Schedule 2 are not mentioned. The tribunal dealt with the issue whether the mobility component of disability living allowance was paid in respect of the injury sustained in the accident.
14.	That shows one of two errors of law. One possibility is that the tribunal exceeded its jurisdiction by dealing with issues between the compensator and the injured person under section 8. That would be an error of law.  The other possibility is that there is a contradiction between the decision notice and the statement of reasons. That contradiction would also be an error of law. 
Was the mobility component paid in respect of the injury sustained in the accident?
15.	If the injured person was entitled to the mobility component on the basis of disablement that was caused by the accident, it was paid in respect of the accident.
The basis of the award of the mobility component 
16.	The certificate of recoverable benefits shows that the mobility component of disability living allowance was awarded at the higher rate from and including 16th February 1994. That date was 4½ months after the date of the accident. However, the allowance could not be awarded before the date of claim. The date stamp that would show that date is on page 6. It is illegible. However, as the claim pack was signed as dated on 11th February 1994, it is reasonable to take the effective date of the award as the date of claim. 
17.	There is no direct evidence of the basis on which the award was made. I have commented elsewhere on the difficulties in identifying the basis of an award of a disability living allowance under the adjudication scheme that existed before the Social Security Act 1998. An initial decision on a claim contained no indication of the findings of fact on which the award was based. A review decision under section 30(1) of the Social Security Administration Act 1992 contained reasons, but adjudication officers were usually less specific on the reasons for making an award than on the reasons for refusing one. The reasons might do no more than record that the conditions of entitlement were satisfied. 
18.	In this case, the tribunal was not provided with the adjudication officers’ decisions on the claim and on review. 
19.	In those circumstances, the best that a tribunal can do is to draw inferences about the basis of an award from the evidence that was before the adjudication officer. The section 30(1) decision usually identified what evidence was taken into account. In compensation recovery cases, there will inevitably be a number of medical reports that may well give different opinions. It is important to know whether they were considered by the adjudication officer. In this case, the dates of those reports show that it was unlikely that even the earliest of the reports would have been available to the adjudication officer. If the matter had been less clear, the tribunal should have obtained the section 30(1) decision in order to clarify the point.
20.	In this case, the evidence consisted of two claim packs and a report from an examining medical practitioner.
20.1.	The injured person claimed a disability living allowance by completing a claim pack. The mobility section of the pack (pages 20 to 25) were left blank. 
20.2.	In April 1994, another claim pack was completed. I assume that this was in connection with a review under section 30(1). This time the mobility section was completed (pages 55 to 60). She dated her difficulties to 1st October 1993, the date of her accident. She attributed those difficulties to two causes. First, she referred to giddy spells that affected her balance. Second, she mentioned the pain in her upper body that caused her to tire quickly, to need support and to walk with a swaying movement. 
20.3.	In September 1994, a report was obtained from an examining medical practitioner. The doctor’s opinions (pages 71 to 72) were that: the injured person’s mobility was affected by giddiness causing her to fall; she could only walk with the support of her husband; mobility was limited to 50 yards; progress was very slow; her gait was normal. The doctor dated the level of difficulty to 1st October 1993.
21.	An adjudication officer faced with a conflict between an examining medical practitioner’s report and a claimant’s evidence is likely to have relied on the former. In this case, the doctor agreed with the injured person that giddiness limited mobility, but made no reference to the pain in her upper body that was mentioned in the second claim pack. The proper inference to draw is that the award was based on disablement that resulted from giddiness in accordance with the medical opinion of the examining medical practitioner.
The connection with the accident
22.	The full statement of the tribunal's decision identifies, sometimes with comments, the references to the injured person’s mobility in the evidence.
23.	There is the evidence from the disability living allowance claim. I have already set that out. It is puzzling that the mobility section of the first report was not completed. The tribunal noted this. But it is not clear what significance it attached to it.
24.	There are also references in the medical reports that were prepared for the civil claim, which the tribunal extracted, sometimes with comments. 
24.1.	The earliest report was obtained on behalf of the injured person from a Consultant Ophthalmic Surgeon in June 1994. He recorded that she was experiencing ‘troublesome giddy spells’ that were ‘now so severe that she finds it difficult to go out of doors on her own any more.’ The tribunal did not comment on this evidence.
24.2.	The next report was obtained on behalf of the injured person from a Consultant Orthopaedic Surgeon in July 1995. The report includes the injured person’s reports that: she had felt giddy ‘frequently’ ‘every day’ since the accident; she ‘now is unable to go out alone and unaccompanied’; and that ‘if she does walk more than about 100 yards at a time she is prevented from doing so because her neck becomes jarred and much more uncomfortable.’ The tribunal commented that: (a) the 100 yards distance would not attract an award of the mobility component; (b) no mention was made of needing support; and (c) although she was suffering from giddiness when she completed the first claim pack for disability living allowance, she did not mention a need for assistance with mobility.
24.3.	The other medical report was obtained on behalf of the defendant in the civil claim from a Consultant Orthopaedic Surgeon in November 1997. The tribunal noted the referral letter from the GP saying that the injured person had complained of giddy spells since the accident. The report also records that the claimant’s neck pain was increased by walking and exercise.
25.	The tribunal’s conclusion was:
	‘24.	We are satisfied that on the balance of probabilities the appellant [this is a mistake for injured person] suffered visual disturbance and giddy spells virtually straightaway after the accident, and there was no reason why she could not have put this in her original claim form for disability living allowance, which she did not do.
	25.	We consider therefore that the mobility component was not paid in respect of the accident …’
26.	I have difficulty in following the tribunal’s reasoning on this point. That uncertainty of reasoning is itself an error of law. 
27.	The best sense I can make of the tribunal’s reasoning is this. The injured person experienced problems with giddiness, but they were not sufficient to attract an award of disability living allowance. Of course, that is only speculation. But, even if I am right and even if that reasoning had been clearly explained, the decision is still erroneous in law.  The tribunal did not show that it had made allowance for the fact that the medical reports were written without regard to the conditions of entitlement to disability living allowance. Nor did it take any account of the examining medical practitioner’s evidence. 
Is a rehearing necessary?
28.	A rehearing is not necessary. The state of the evidence allows me to give my own decision. 
29.	There is ample evidence that the injured person had complained of giddy spells since the accident. The opinion of the examining medical practitioner was that they were limiting her mobility. The award was based on that opinion. The second claim pack dated the mobility difficulties to the date of the accident; so did the examining medical practitioner, although that was no doubt largely taken on trust from the injured person. Also, the effective date of the award presupposes that the qualifying period of three months was satisfied. That dates the disablement at the latest to 16th November 1993, which is only a few weeks after the accident. The medical reports for the civil claim were not compiled with disability living allowance in mind and allowance has to be made for that in assessing their relevance to disability living allowance. In particular, I prefer the examining medical practitioner’s evidence on the precise nature and extent of the claimant’s mobility difficulties, because it was given with the conditions of entitlement in mind.
30.	My conclusion on the evidence before me is that the injured person’s award of the mobility component was paid in respect of the accident. 
Summary
31.	I allow the appeal and confirm the contents of the certificate of recoverable benefits issued by the Secretary of State.

Signed on original	Edward Jacobs
Commissioner
17th September 2001