CCR/3021/2000

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	I allow the Secretary of State’s appeal.  I set aside the decision of the Stoke-on-Trent appeal tribunal dated 9 March 2000 and I refer the case to a differently constituted tribunal for determination.  Subject to any further direction issued by a legally qualified panel member (i.e., a tribunal chairman), I direct the Secretary of State to make, within one month of this decision being issued, a written submission to the tribunal stating what benefits he now considers should have been included in the certificate of recoverable benefits, bearing in mind all the evidence that is now available, the judgement of Potts J given on 4 March 1998 in proceedings between the claimant and the compensator, the decisions of the Tribunal of Commissioners in R(CR) 1/02 and R(CR) 2/02 and my decision on this appeal.  That submission should be copied to the compensator’s solicitors.

REASONS

2.	The claimant was a part-time hairdresser.  She was injured in a road traffic accident on 29 April 1991 when the car she was driving was hit from behind by another vehicle while stationary at a pedestrian crossing.  She was off work for a few weeks after the accident and then worked with intermittent absences until September 1991 when she gave up work permanently.  She did not satisfy the conditions for entitlement to either statutory sick pay or sickness benefit but was awarded severe disablement allowance from 19 October 1992.  She had already been awarded mobility allowance from 12 February 1992 and that had transmuted into the mobility component of disability living allowance.  The lowest rate of the care component was awarded from 9 February 1994.  All those benefits remained in payment beyond the period with which I am concerned, which ends on 29 April 1996, five years after the accident.

3.	The claimant sued the other driver and his employers.  Liability was admitted in June 1994 but the parties were unable to settle the case and the question of quantum came on for trial before Potts J, sitting in the High Court in Birmingham, on 3 and 4 March 1998.  The claimant claimed to have suffered both physical and mental disablement as a result of the accident.  It was common ground that she had suffered soft tissue injuries of her neck and lower back and that those had been responsible for a period of genuine disability.  It was the claimant’s case that she suffered continuing disability due to clinical depression and illness behaviour brought about by her mental state.  The defendants submitted that the complaints after an initial period of about 18 months did not flow from the accident and were caused by deliberate malingering for financial gain.  In support of this submission, video evidence was made available which, it was submitted, showed that the claimant was not as disabled as she claimed.  Potts J also heard evidence from the claimant and her husband, an orthopaedic surgeon and a psychiatrist on behalf of the claimant and another orthopaedic surgeon and psychiatrist on behalf of the defendants.

4.	In his judgement, Potts J reviewed the evidence in respect of the claimed physical disablement and then said:

“…. I wish to emphasise that in analysing a video film I have no expertise.  I am no better off than a layman and I would not venture to reach a conclusion in this case as to the significance of the video film in isolation.  That can only be done in the context of the whole of the medical evidence, the findings of the doctors on examination, their opinions and, of course, the evidence of [the claimant] and her husband.  I have to say, in the latter connection, that the signs in the video films are wholly inconsistent with the picture painted in the oral evidence.

“The defendants have submitted that [the claimant] is deliberately exaggerating her condition.  I canvassed with counsel what it was that I had to find in this connection.  I understood them both to say that the essential issue for me was whether I was satisfied that [the claimant’s] complaints as to physical disabilities in the condition of her neck and back flowed from – that is to say, were caused by – the accident on 29th April 1991.  That being the case, I say no more than on the totality of the evidence that I have heard and seen I am not so satisfied.”

In exchanges with counsel, it was made clear that that related to the position after the initial period during which it was accepted by the defendants that there had been genuine physical disablement.

5.	 In respect of the mental disablement, Potts J found that the claimant had been suffering, and continued to suffer, from clinical depression.  In doing so, he preferred the evidence of Dr Thomas Galla MRCPsych, given on behalf of the claimant, to that of Dr N A Halstead FRCPsych, given on behalf of the defendants.  Dr Galla’s view, as expressed in oral evidence at the trial was that –

“Had it not been for the incident in April 1991, she would still be working.”

 He had said in a report dated 7 May 1996 –

“Psychiatric patients, whether or not they are claimants in an action of this kind, commonly overemphasise complaints that are nevertheless perfectly genuine – and no-one could say for sure that [the claimant] had not done so from time to time.  However I can see no justification for saying, as Dr Halstead does, ‘I am suggesting that she may be inventing or exaggerating these symptoms for the purposes of her claim.’”

In a further report, dated 11 February 1998, he said –

“She is completely without insight into the fact that her continuing physical disablement must be due, largely at any rate, to her mental state: she maintains that there must be something seriously the matter with her spine that the doctors have not been able to pinpoint.”

6.	In the light of the findings made by Potts J on the medical issues, the parties settled the case.  Under a consent order dated 11 March 1998, judgement was entered for the claimant in the sum of £11,869.98, made up of £10,000 general damages, £385.37 loss of earnings (inclusive of interest) and various other sums in respect of special damages.  For some reason that is not immediately obvious to me, only £10,733.33 of the sum standing in Court was ordered to be paid out to the claimant.  (There is no mention in the order of the compensation being reduced under section 8 of the Social Security (Recovery of Benefits) Act 1997 and such a reduction would, it seems to me, have been inappropriate, given the fact that benefits do not appear to have been paid in respect of the period to which I presume the claimant’s loss of earnings relates and that it is difficult to see how a reduction could have been justified in relation to the special damages in respect of the claimant’s husband’s lost earnings and in respect of gardening assistance.)  It was also ordered that the compensator pay to the Compensation Recovery Unit the sum of £16,738.26.  As that sum was the amount mentioned in the certificate of recoverable benefits that had been issued to the compensator, that order was unnecessary as it merely reiterated what was required by section 6 of the Social Security (Recovery of Benefits) Act 1997.

7.	The certificate of recoverable benefits issued under the 1997 Act included all the severe disablement allowance, mobility allowance and disability living allowance paid to the claimant within five years of the accident.  The compensator, having paid the £16,738.26 to the Secretary of State, appealed against the certificate.  On 9 March 2000, the case came before the tribunal.  Counsel for the compensator submitted that, on the findings of Potts J, none of the benefits had been paid in respect of the relevant accident.  He submitted that the 1997 Act requires a compensator to pay for the consequences of the negligence of a driver but not for misrepresentation.  Despite the amount of money at stake, the Secretary of State was not represented at the hearing before the tribunal.  However, it was argued in a written submission made on his behalf that those awarding the benefits had considered that the claimant was disabled to the extent she claimed in consequence of the relevant accident and that the tribunal could not go behind those awards.  The tribunal rejected the Secretary of State’s submission and accepted the compensator’s submission, saying –

“The totality of the evidence and the findings of Mr Justice Potts in the High Court proceedings suggest to us that it is more likely than not that [the claimant] deliberately exaggerated the physical effects of the accident in order to increase her entitlement to civil damages and to benefits.”

They also said –

“Any injuries persisting after 8 weeks are likely to have been minimal, and certainly insufficiently severe to justify an award of any of the listed benefits.” 

8.	The Secretary of State originally sought leave to appeal on the grounds that the tribunal had erred, firstly, in going behind the awards of benefit and, secondly, in finding that the claimant had suffered injury for 18 months but then limiting the period of recovery to 8 weeks.  Leave to appeal was refused by the chairman of the tribunal.  Consideration of the renewed application made to a Commissioner was deferred to await the decisions of the Tribunal of Commissioners that are now reported as R(CR) 1/02 and R(CR) 2/02.  In the light of those decisions, the Secretary of State abandoned his first ground of appeal but pursued the second and added another which is that the tribunal erred in failing to make any finding as to the psychiatric effects of the accident.  It was on that new ground that I granted leave to appeal on 16 October 2001.

9.	The compensator has now raised two preliminary points.  The first is based on the not very satisfactory information provided by the Appeals Service after a decision has been given.  One effect of the form in which the information has been given is that the compensator has not distinguished between a correction under regulation 56 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999, a setting aside under regulation 57 of those Regulations and an appeal under section 13 of the Social Security (Recovery of Benefits) Act 1997.  This is an appeal under section 13.  More importantly, the compensator cites the Appeals Service’s information for the proposition that there is no right of appeal in the present case at all.  The information stated:

“You cannot appeal to a commissioner if your appeal was against;
•	a vaccine damage payment
•	compensation recovery, or
•	a road traffic accident.”

Insofar as that referred to compensation recovery decisions, it was simply wrong because section 13 of the 1997 Act does allow such an appeal.  (This error has been corrected in information given more recently to parties to proceedings before appeal tribunals.)  Insofar as it referred to a road traffic accident, the information was meaningless – what does it mean to appeal against an accident? – and insofar as it referred to a vaccine damage payment it was incomplete – because no reference is made to decisions not to make any payment.  The true position, which the information was presumably intended to reflect, is that there is no provision for an appeal to a Commissioner against any decision of an appeal tribunal given under the Vaccine Damage Payments Act 1979 or under the Road Traffic (NHS Charges) Act 1999.  Although the present case arises out of a road traffic accident, the appeal tribunal were acting under the 1997 Act and not under the 1999 Act.  Therefore, I have jurisdiction to determine this appeal.

10.	The compensator’s second preliminary point is an objection to the Secretary of State being allowed to amend his grounds of appeal.  In my view, it is not generally in the interests of justice for appeals on points of law to be determined in accordance only with the points pleaded by the parties rather than on their true merits, particularly in this jurisdiction where many parties, including, in many cases (but not this one), the Secretary of State, are not represented by lawyers.  I accept that it may be right in some circumstances to refuse to allow a new point to be taken long after an application has been made.  However, in this case, the amendment was made before I granted leave to appeal and in response to a general direction inviting the Secretary of State to rethink his arguments in all the cases stayed to await the decisions of the Tribunal of Commissioners.  Furthermore, the new ground is related to the Secretary of State’s original grounds of appeal and is clearly within the broad scope of the original application, which was made within the time allowed.  I do not accept the compensator’s objection.

11.	I turn, therefore to the substantive issues arising on this appeal.  The tribunal rightly took into account the judgement of Potts J and they naturally placed great weight upon what they considered he had decided.  In view of Potts J’s comments on the video evidence as compared with the oral evidence of the claimant and her husband, the tribunal were entitled to find that the claimant had deliberately exaggerated her symptoms.  Contrary to the submission of the Secretary of State, they were also entitled to find that, although the claimant continued to experience symptoms for 18 months, the symptoms were not sufficiently serious to warrant the payment of benefits after 8 weeks.  (The design of the Appeals Service’s standard form of decision notice for these sorts of cases is unhelpful in that regard and was criticised in R(CR) 1/02.)  In some cases, such a finding might not lead to the conclusion that benefits had not been paid in respect of the accident causing the symptoms, because those symptoms might be a contributory cause of the payment of benefits, when taken with other factors.  However, in the present case, that has not been suggested and the implication of the tribunal’s finding is that they considered that the benefits ought not to have been paid at all.  In R(CR) 1/02 and R(CR) 2/02, it was held that a tribunal may reach a conclusion that carries such an implication.  In the context of the present case such a conclusion might readily be understandable because the only benefits paid within 18 months of the accident required there to have been quite severe disablement.

12.	However, I accept the Secretary of State’s submission that the tribunal appear to have overlooked Potts J’s finding that the claimant had been suffering from clinical depression and was still suffering from it at the date of the trial.  He plainly regarded that depression as disabling and it is at least arguable that he accepted Dr Galla’s view that it prevented her from working, even though it may have developed some time after the accident and may not have been the initial cause of her giving up work.  What Potts J does not appear to have done is make any finding as to the extent to which his observation as to the inconsistency between the claimant’s oral evidence and the video evidence had an impact on Dr Galla’s opinion.  Indeed, I can see nothing in the papers before me to suggest that the video evidence was ever mentioned to Dr Galla, either before the trial or at the trial.  Yet Dr Galla’s opinion as to the severity of the claimant’s mental disablement seems to have been based on an understanding that the claimant’s symptoms were genuine, albeit caused by her mental condition rather than the condition of her spine.  To the extent that her symptoms were not genuine, there was no disablement due either to physical causes or to her mental condition.  The video evidence was therefore capable of providing an answer to Dr Galla’s statement that there was no justification for Dr Halstead’s view that the claimant was inventing or exaggerating her symptoms.  On the other hand, I am unable to tell from the documents before me whether the video evidence effectively demonstrated that there was no genuine “illness behaviour” at all or whether it merely suggested that it was less serious than claimed.  Nor does it appear to have undermined Dr Galla’s diagnosis of clinical depression, even if that was demonstrated only in symptoms other than the “illness behaviour”.

13.	The compensator points out that the claimant’s claims for benefits were based on physical symptoms.  However, even if the claimant did not have physical disablement, a reliance by her on physical symptoms would have been consistent with “illness behaviour” arising out of mental disablement.  On the other hand, to the extent that the “illness behaviour” was not genuine, the claimed symptoms would have to be disregarded in considering whether any of the benefits was paid in respect of the relevant accident.  The compensator’s point therefore has force insofar as there is not a great deal of evidence to suggest that the depression would have given rise to entitlement to disability living allowance in the absence of any “illness behaviour”.  A further point might arise because entitlement to mobility allowance and, in the circumstances of this case, the mobility component of disability living allowance, required that the claimant’s virtual inability to walk be due to physical disablement (see sections 37A and 37ZC(i)(a) of the Social Security Act 1975 (as amended), section 73(1)(a) of the Social Security Contributions and Benefits Act 1992, regulation 3(1)(a)(ii) of the Mobility Allowance Regulations 1975 (as amended) and regulation 12(1)(a)(ii) of the Social Security (Disability Living Allowance) Regulations 1991).  The Secretary of State would be on stronger ground in relation to severe disablement allowance, the award of which in the present case seems largely to have been based on loss of mental faculty. 

14.	The tribunal appear not to have considered any of these issues.  They should have done so.  They stated that they had taken into account the approach of Potts J but there is no reference at all in the chairman’s statement of the tribunal’s reasons to Potts J’s finding that the claimant was suffering from clinical depression in consequence of the relevant accident.  In the circumstances, this demonstrates an error of law.  Either the tribunal failed to consider a material issue or else the chairman failed to record reasons for their conclusion as regards that issue and the Secretary of State is left in doubt as to whether the issue was considered.  In either event, the tribunal’s decision is rendered erroneous in point of law.  Therefore, I allow this appeal.

15.	It will be clear from what I have said that it is necessary for there to be findings made on issues on which no findings have previously been made by anyone and on which the evidence is not conclusive.  Those findings will be more appropriately made by a tribunal than by me and I therefore refer this case to a tribunal for determination.  Both parties may wish to consider whether further evidence should be obtained and the compensator may wish to consider whether the video evidence should be made available to the Secretary of State and the tribunal.  The parties may, however, be content with the evidence in the papers.  In any event, they should bear in mind that Potts J did not have available to him the evidence available to the benefit authorities and the benefit authorities did not have available to them the evidence that was before Potts J.  

16.	Section 11 of the 1997 Act places on the compensator the burden of showing that the benefits listed in the certificate were paid otherwise than in respect of the relevant accident.  The compensator’s position is reasonably clear from the submissions made on this appeal but, as the Secretary to State’s submission to the last tribunal was based on a misunderstanding as to the law, I direct the Secretary of State to make a new written submission to the tribunal stating what benefits he now considers should have been included in the certificate of recoverable benefits.  If either party wishes to produce further evidence, it may be necessary for the Secretary of State to apply to a tribunal chairman for an extension of the time in which to make the submission and the parties may need to ask the clerk to the tribunal to defer fixing a date for the hearing.  The compensator may make a written submission in response if so advised.  It is, of course, open to the parties to reach agreement as to what is recoverable and so obviate the necessity for a hearing.

17.	If there is to be a hearing and if the parties wish to call oral evidence, they should ensure that the clerk to the tribunal is informed as soon as practicable so that an appropriate amount of time may be set aside for the hearing.  The claimant herself is not a party to these proceedings but it is open to the parties or the tribunal to seek her attendance as a witness.

(signed)	M. ROWLAND
Commissioner
14 June 2002