R(CR) 1/03

Mr. M. Rowland	CCR/4030/2000
8.4.02
Compensation recovery – benefit payable at different rates – whether part of benefit may be found to have been paid “otherwise than in respect of” the relevant accident
Compensation was paid to the claimant in respect of a head injury, which he claimed caused epilepsy. The Secretary of State issued a certificate of recoverable benefits, listing benefits claimed in respect of epilepsy. The compensator appealed against the certificate of recoverable benefits, arguing that the injury was minor, that the claimant was not suffering from epilepsy and that such symptoms as he had were not caused by, or were not solely caused by, the relevant accident. The Secretary of State argued that the tribunal could not go behind the awards of benefits which were plainly made on the basis that the claimant was suffering from epilepsy and, at least in the case of disablement benefit, that the epilepsy had been caused by the relevant accident. The tribunal dismissed the compensator’s appeal. The compensator appealed to the Commissioner. The Secretary of State conceded in the light of R(CR) 1/02 and R(CR) 2/02, that the submission to the tribunal had been flawed but raised the question whether a tribunal was entitled to determine that part only of a benefit was recoverable. Held, allowing the appeal, that:
1.	the tribunal’s decision was erroneous in point of law because they had either accepted the Secretary of State’s submission to them or had failed to give adequate reasons for rejecting the compensator’s arguments on the facts (paragraph 3);
2.	if benefit had been paid at the wrong rate, only that part of the benefit that ought to have been paid was recoverable from the compensator (paragraph 4);
3.	it is open to a compensator to argue that disablement benefit had been paid at the wrong rate because the degree of disablement had been wrongly assessed (paragraph 5).

The Commissioner set aside the decision of the tribunal and referred to a differently constituted tribunal for determination. 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	I allow the compensator’s appeal. I set aside the decision of the Liverpool appeal tribunal dated 24 July 2000 and I refer the case to a differently constituted tribunal for determination.

REASONS

2.	This case arises out of an accident the claimant suffered at work on 21 October 1991. The claimant claimed to have suffered a serious head injury causing epilepsy. He sued his employers on that basis but the case was eventually settled in 1998 on payment to the claimant of £10,000. The compensator had argued that the claimant’s injury was minor, that he was not suffering from epilepsy and that such symptoms as he did have were not caused, or were not solely caused, by the relevant accident. The Secretary of State recovered from the compensator statutory sick pay, invalidity benefit, incapacity benefit, disablement benefit and disability living allowance paid to the claimant within five years of the accident, totalling £42,059.24. The compensator appealed against the certificate of recoverable benefits. The Secretary of State argued that the tribunal could not go behind the awards of benefits which were plainly made on the basis that the claimant was suffering from epilepsy and, at least in the case of disablement benefit, that the epilepsy had been caused by the relevant accident. The tribunal dismissed the compensator’s appeal and the compensator now appeals against that decision with the leave of the tribunal chairman.

3.	The Secretary of State rightly concedes that, in the light of the decisions of the Tribunal of Commissioners to be reported as R(CR) 1/02 and R(CR) 2/02, the Secretary of State’s submission to the tribunal was misconceived and that the tribunal’s decision is erroneous in point of law and should be set aside. The tribunal either accepted the Secretary of State’s submission to them (which seems probable) or failed to give adequate reasons for rejecting the compensator’s arguments on the facts. 

4.	It is quite clear from the decisions of the Tribunal of Commissioners that a tribunal is entitled to determine that benefits were paid otherwise than in respect of an accident for part only of a period covered by a certificate of recoverable benefits. However, the Secretary of State points out that this case raises the question whether a tribunal is entitled to determine that part of the benefit paid is recoverable but not all of it. Section 11(1)(a) and (b) of the Social Security (Recovery of Benefits) Act 1997 provides:

“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, or

(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, or …. ”

The Secretary of State suggests that the Tribunal of Commissioners were concerned with section 11(1)(b) and that any decision that part of a benefit had been wrongly paid to a claimant would have to be made under section 11(1)(a), to which different considerations might apply. I do not agree. It seems to me that section 11(1)(a) is concerned with appeals on the ground that the certificate does not accurately reflect the benefit that was actually paid to the claimant. Any appeal on the basis that the benefit was wrongly paid to the claimant is an appeal on the ground that the benefit was paid “otherwise than in respect of” the relevant accident. Given its context, I do not see why section 11(1)(b) cannot be read as allowing an appeal on the ground that a benefit has been partly paid in respect of some other cause. That is not to say that there can be apportionment where benefit payable only at one rate has been paid at the proper rate but entitlement is due to both the relevant accident and some other cause. In such a case, the approach I took in CCR/5336/95 and R(CR) 1/01, upon which the compensator has relied, must be followed. However, if benefit is paid at the wrong rate because, say, the Secretary of State made a mistake as to the claimant’s age, only that part of the benefit that ought to have been paid will be recoverable from the compensator. That sort of mistake is, of course, rare.

5.	The more serious practical issue arising in the present case is how awards of disablement benefit should be approached. The rate at which disablement benefit is payable depends on an assessment of the level of disablement. Disablement from different accidents may be aggregated under section 103(2) of the Social Security Contributions and Benefits Act 1992. Plainly, in such a case, only the benefit attributable to the assessment made in respect of the relevant accident will be recoverable, although that may give rise to difficult questions, depending on the order in which the accidents took place. More importantly, regulation 11 of the Social Security (General Benefit) Regulations 1982 makes provision for the assessment of disablement where disablement is due both to the relevant accident and some other cause. If a compensator can show that an assessment was made in ignorance of the fact that the claimant was suffering from a constitutional condition that should have been taken into account in making the assessment, it seems to me that the compensator must be entitled to invite a tribunal to consider what assessment should have been made in the light of the new information and what benefit would have been paid had that assessment been made. It must then follow that it is open to a compensator to show that an assessment was wrong on other grounds. For instance, it may be accepted that the claimant had some disablement due to the relevant accident but there may be evidence of some deliberate exaggeration of symptoms which was plainly not taken into account by the assessor. In such a case, the a tribunal would be entitled to give a decision to the effect that part only of the disablement benefit had properly been paid in respect of the relevant accident. I stress, however, that the burden is on the compensator to show that benefit was paid “otherwise than in respect of” the relevant accident. In the absence of some compelling new evidence, a tribunal will no doubt be slow to substitute their own judgement for that of an assessor who has had the advantage of examining the claimant.

Dated: 8 April 2002						(signed) M. ROWLAND
     Commissioner