UKSSCSC CCR_2231_2003  (30 June 2004)

CCR/2231/2003

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	I allow the claimant’s appeal.  I set aside the decisions of the Birmingham appeal tribunal dated 22 January 2003 on both file U/04/024/2002/07958 (the claimant’s appeal to the tribunal) and file U/04/033/2002/00628 (the compensator’s appeal to the tribunal) and I refer the cases to a differently constituted appeal tribunal for determination.  The bundle of papers before me derived from file U/04/024/2002/07958 now contains all the documents relevant to both appeals so that it should be possible to use the single file.  I direct the Secretary of State to make a further submission in the light of paragraph 18 below.

REASONS

2.	The claimant worked for Consignia, sorting mail.  On 26 June 1998, she was pulling packets from a frame and putting them into bags.  The frame was at waist height and was spring-loaded, so that, as packets were removed, those remaining rose up.  On the day of the accident the spring was not working and the claimant had to reach into the frame to pick up packets.  While doing that, she felt a pain in her back and had difficulty straightening up.  She was put on lighter duties and continued to work on such duties until 9 July 1998 when she visited her general practitioner.  She did not work again.  She claimed, and was awarded, disablement pension from 14 October 1998, incapacity benefit from 24 January 1999, disability living allowance from 16 June 1999 and income support from 2 September 1999.  The award of disablement pension was based on assessments of disablement of 14 per cent.  The award of disability living allowance consisted of the lowest rate of the care component and, for the first two years only, the higher rate of the mobility component.  Apart from the mobility component of disability living allowance, all the benefits were still in payment in October 2001 when Consignia paid compensation to the claimant.  She received £9,760.03, which represented £25,000 less all the disablement pension, incapacity benefit and income support listed on the certificate of recoverable benefits issued by the Secretary of State to Consignia.  I note that the claimant appears to have accepted that the whole of those benefits could be deducted from her compensation notwithstanding that the gross amount was reduced on the basis that she contributed to the injury to the extent of 15 per cent.  Consignia, of course, paid to the Secretary of State an amount equivalent to all the benefits listed in the certificate, including the disability living allowance.  

3.	Both the claimant and Consignia appealed against the certificate, the claimant’s appeal being dated 29 October 2001 and Consignia’s being dated 5 November 2001.  The two appeals were processed separately, even though the first 306 pages of evidence were common to the two appeals and very few documents were not.  On 4 September 2002, an appeal tribunal purported to make a decision on the compensator’s appeal at a paper hearing requested by the compensator without the claimant having had notice of the hearing.  That decision was set aside and the two appeals were then properly linked.

4.	In my view, the appeals should not have been processed separately in the first place.  Where two parties appeal against the same certificate of recoverable benefits, the appeals must be heard together because if they are heard separately the effect of the first decision may be to cause the second appeal to lapse because the decision under appeal in the second case will already have been replaced by the decision of the tribunal on the first appeal.  Similar situations can arise in child support cases (see R(CS) 4/98).  As appeals must be lodged with the Compensation Recovery Unit (see regulation 33(2)(a) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999), and as the Compensation Recovery unit are responsible for preparing the documents for the tribunal, it seems to me to be incumbent on the Compensation Recovery Unit to link related appeals or to ensure that the Appeals Service links them if papers have been sent to the Appeals Service before the second appeal is received.

5.	In any event, the two appeals came before the same tribunal on 22 January 2003.  Consignia’s appeal related to disability living allowance was allowed, the tribunal taking the view that the benefit should not have been paid.  The claimant’s appeal was based on medical evidence from Mr Rabi Khazim MD FRCS(C), a consultant orthopaedic and spinal surgeon originally instructed on behalf of Consignia, suggesting that the relevant accident had significantly exacerbated an underlying condition for a period of only 3 to 6 months and that none of the symptoms could be attributed to that accident at all after a period of one or two years.  She therefore submitted that payment of the benefits listed in the certificate of recoverable benefits was not attributable to the relevant accident throughout the “relevant period”.  The tribunal allowed the claimant’s appeal only to the extent of finding that the incapacity benefit and income support had not been paid in respect of the relevant accident from 1 January 2001, some two and a half years after the accident.

6.	The claimant now appeals with my leave and the support of the Secretary of State.  Both parties submit that the case should be referred to another tribunal.  Consignia have taken no part in the appeal but the Secretary of State’s representative submits that question decided in Consignia’s favour by the last tribunal should be remitted to another tribunal.  She does not suggest that the tribunal erred in their approach to Consignia’s appeal and so I presume the submission is made simply because she takes the view that, if the claimant’s appeal is allowed, all issues arising out of the certificate of recoverable benefits should be considered still to be at large and must be taken together.  

7.	The claimant’s solicitors, Messrs Simpson Millar of Birmingham, advance five grounds of appeal.  The first is that the tribunal’s reasoning for rejecting Mr Khazim’s view of the effects of the accident is flawed.  Mr Khazim’s estimate was given in a letter to Consignia’s solicitors, dated 5 February 2001, but was against the background of a report dated 18 December 2000 made following an examination of the claimant on 12 August 2000 and the obtaining of relevant records.  His opinion was:

“It is evident that [the claimant] had a long history of low back pain degenerative condition.  She has had regular symptoms and she has had regular times off work because of low back pain conditions since 1990.  The last sick absence before the reported accident was on 07/04/98, that is about less than 3 months before the reported accident.

“The MRI scan findings as well as the findings on the plain X–rays of disc degeneration at L5/S1 is likely to have pre-existed the accident reported on 26/06/98.

“I do not have objective evidence to support that the accident has occurred.  The evidence stems from her history.  She was having a regular low back pain condition and it is likely that she would have had similar low back pain within 1 years of the accident in any case whether or not she had done the activities on 26/06/98.  However, the mechanism of the accident as reported by [the claimant] can be consistent with exacerbating her pre-existent low back condition.

“It is difficult to judge whether the annular tear and the disc bulge at L5/S1 pre-existed the accident on 26/02/98.  I believe that on balance of probabilities, this annular tear is likely to have occurred in any case within 1 year of the date of the accident.

“The reported mechanism of accident indicates repetitive bending and lifting some weights off a frame.  I believe that this mechanism of repetitive bending is likely to exacerbate a pre-existent low back pain condition.  I believe that this exacerbation is likely to have been significant or severe for 3 or at most 6 months.  Thereafter there is likely to have been some mild exacerbation to one or at most two years following the accident.

“I do not believe that she had any acute bony injuries or fractures.  She did not have significant ligamentous injury.  She did not have acute disc herniation or nerve root impingement as a result of the accident.

“I do not believe that there has been, or will be in the future an increased risk of arthritis or degeneration as a result of the accident.

“I believe that there is significant functional overlay to her symptoms in that I do not believe that her symptoms can be solely explained on the basis or organic pathology.

“I believe that she should be able to perform light manual or clerical activities given that she does not do repetitive lifting or bending and she has the freedom of changing position frequently from a sitting to standing and walking position.”

8.	At the end of paragraph 4 of the chairman’s statement of reasons for the tribunal’s decision, the issue before the tribunal is correctly identified:

“The issue is when, were it not for the accident, [the claimant] would have become disabled to the extent that the various benefits in payment would otherwise have become payable.”

9.	The statement then continues:

“5.	Mr Khazim states that ‘the reported mechanism of the accident indicated repetitive bending and lifting some weights off a frame.  I believe this mechanism of repetitive bending is likely to exacerbate a pre-existing back pain condition.  I believe this exacerbation is likely to have been significant or severe for 3 or at most 6 months.  Thereafter there is likely to have been some mild exacerbation to one or at most two years following the accident.’.

	“However, this does not in fact describe the mechanism of the accident, as it leaves out the material fact that the mechanism designed to assist and retrieve parcels was not working that day, and therefore the actions undertaken that day were not the usual bending and lifting process which was generally assisted mechanically.  We think this an important qualification which puts in question his view that this lady would have been in this condition in at most one or two years following the accident.  Bearing in mind that in the four years pre-accident, she had only a total of 15 days off work with back pain, it can be only speculation that she would have been in this state in one or at most two years following the accident.  We believe that conclusion is flawed because it leaves out of account the actual mechanism of the accident.

“6.	This is not, however, to say that the tribunal otherwise does not accept Mr Khazim’s report.  In particular, we accept there were inappropriate signs and definite evidence of functional overlay.  This is also referred to, in a somewhat veiled manner, by Mr Shergill, consultant orthopaedic surgeon, who wrote to the claimant’s GP on 11th November 1999 stating:

	‘It is somewhat unusual that she is not a lot better than she is by now as the majority of patients in this situation should be able to get back to normal mobility with a proviso that they would be vulnerable to any heavy manual work from the point of view of back pain.’

“7.	Mr Shergill also mentions that although [the claimant] attributes all of her symptoms to the accident at work the appearances of the degenerate disc on the MRI scan are long-standing and would certainly significantly pre-date the time of the injury.

“8.	The clinical findings make it very clear that there is a very significant element of functional overlay.  The tribunal does not accept [the claimant’s] solicitor’s suggestion that the functional overlay “has not been caused by the accident”.  Given this lady’s enthusiastic participation in work pre-accident, there can in our view be no other explanation for it.  She did not previously present herself as a person who was disabled.  We do not believe there was any deliberate attempt at exaggeration, and believe this has been demonstrated by the fact that she continues as significantly disabled person long after the civil case has settled.  The overlay is in our view almost certainly attributable to a degree of depression at the loss of a previous life-style and the loss of work which she enjoyed.

“9.	Turning to the individual benefits which are at issue, the tribunal is satisfied that all of the Industrial Injuries Disablement Benefit which was paid was properly paid in respect to the relevant accident.  This is because the psychological component of the disablement can be taken into account when assessing a person for Industrial Injuries Disablement Benefit.  Whether a person is fit for some other type of work other than that which they were doing at the time of the relevant accident is not a factor which impacts on the assessment for Industrial Injuries Disablement Benefit.  We are satisfied that this lady’s psychological disablement, plus the continuing physical disablement is attributable to the relevant accident, and given the failure of Mr Khazim’s report to focus on the precise mechanism by which the accident took place, while we can agree that at some point in the future she would have become disabled to the extent she is now, we can place no reliance on his assertion that it would be within one or two years of the date of the relevant accident.  In the absence of such accident, the chances are that she would have been able to continue working for a number of years.  We are not sure that a lifetime assessment is appropriate, but that is not the issue before us.  During the periods covered by this appeal, we are satisfied that the Industrial Injuries Disablement Benefit was paid in respect of the effects of the relevant accident.

“10. That is not so, however, with the other benefits at issue.  We consider Incapacity Benefit and Income Support together, as one was (presumably) consequent on the other.  We accept that the benefit was properly paid to start with.  The question is from what time she ceased to be entitled to Incapacity Benefit (and therefore Income Support) as a consequence of the effects of the relevant accident.  Incapacity Benefit is paid regardless of causation, but the tribunal has to consider entitlement at this point.  We also had the benefit of seeing other reports which set out findings inconsistent with the degree of limitation set out in the initial Incapacity Benefit report having continued throughout the period for which the benefit was paid.  The initial claim to Incapacity Benefit resulted in a medical examination in 1999.  We accept the examination findings and accept that the limitations set out were attributable to the relevant accident.  However, thereafter, [the claimant] was not subject to re-examination during the course of the period covered by this appeal.  There is a process by which the IB50 questionnaire is produced to a doctor employed on behalf of the Benefits Agency to scrutinise and say whether he thinks that the limitations reported are consistent, and therefore whether a medical examination is needed.  No further medical examinations appear to have been carried out during the period under appeal.  Accordingly, the tribunal by transposing the findings set out in the other medical reports and considering whether [the claimant] was still likely to obtain at least 15 points from physical descriptors, has concluded that by a date some two years or so after the relevant accident would not have been likely to obtain this number of points, and certainly not as a consequence of the relevant accident.  Mr Khazim speculates that she would have been in this state one or two years after the accident even if it had not taken place.  We have pointed out in paragraph 5 above the flaw in his account of the mechanism by which the accident took place.  However, the findings elsewhere satisfy us that by 1st January 2001, she was no longer entitled to Incapacity Benefit as a consequence of the effects of the relevant accident.  Accordingly, the Secretary of State is entitled to recoup the Incapacity Benefit and Income Support paid up to and including 31st December 2000 but not thereafter.”

10.	The claimant’s solicitors point out that Mr Khazim had accurately recorded the claimant’s account of the problem that had arisen with the frame in the section of his report headed “history”, where he said:

“This is a spring hold loaded hold frame so that as packets are removed the packets rise up but at the time the spring was not working.  She reports that the packet weights varied but these could be up to 11 kg.  She was in a standing position.  She reports that on that day she had to bend down more and more to pull the packets out of the frame.”

They therefore submit that the tribunal erred in rejecting Mr Khazim’s opinion on the ground that he had misunderstood what had happened.  I agree.  It seems to me that Mr Khazim’s description of “repetitive bending” must be read in the light of his acceptance of the history he had recorded and, indeed, his report makes more sense on that footing because he clearly regarded the bending on the day of the accident as being out of the ordinary.

11.	It does not, of course, necessarily follow that the tribunal’s opinion that the accident would have caused incapacity for a longer period than Mr Khazim had thought was wrong.  However, it is at least possible that they would have been more inclined to defer to the view of a consultant who had examined the claimant had they not thought the consultant’s opinion was based on a mistake.  I therefore accept the submission made on behalf of the claimant and supported by the Secretary of State that the tribunal’s decision is undermined by their error.

12.	The second ground of appeal is that the tribunal wrongly referred to the fact that the claimant had had only 15 days off work in the four years prior to the accident when it might have been regarded as equally significant that 10 of those days had fallen within the seven months before the accident or that she had 47 days off work in the seven years before the accident.  I do not accept that that indicates an error of law.  The figure quoted by the tribunal was not inaccurate and it was for them to determine what was significant.

13.	The third ground of appeal is that the tribunal erred in recording at paragraph 8 of the statement of reasons that the claimant’s solicitor had suggested that functional overlay had not been caused by the accident.  I am told that the submission actually made to the tribunal was that the claimant’s representative could not say to what the functional overlay was attributable but that there was no evidence to suggest that it was attributable to the accident.  I do not accept that the tribunal erred in this regard.  The distinction drawn by the solicitors is too slight.  The claimant’s representative suggestion that there was no evidence that the functional overlay was attributable to the accident was an invitation to the tribunal to find that it was not so attributable and seems to me to amount, in practice, to a submission that, on the evidence available, it was not attributable to the accident.  I do not accept that the tribunal chairman’s language suggests that they misplaced the burden of proof, insofar as it is relevant to talk of a burden of proof at all in cases such as these.  I accept that, notwithstanding that section 11(1)(b) of the Social Security (Recovery of Benefits) Act 1997 requires a claimant or compensator to show that benefit was paid otherwise than in consequence of a relevant accident, they will inevitably succeed in doing so once they have provided details of the relevant accident and its effects unless the Secretary of State can point to a prima facie connection between the benefit and the accident so as to justify the inclusion of the benefit in the certificate of recoverable benefits.  That partly arises from the fact that the Secretary of State has all the relevant evidence about the awards of benefit and, once an appeal has been submitted, it is necessary for him to produce that evidence.  Plainly, the tribunal were satisfied that there was such a link in this case.

14.	The fourth ground of appeal is linked to the third.  It is submitted that the tribunal’s findings were inconsistent in that they found that functional overlay was attributable to the claimant’s loss of a previous lifestyle and work but then found that it was attributable to the relevant accident notwithstanding that they found that the claimant would have suffered the loss even if the accident had not occurred.  I do not accept this submission, which is based on a misunderstanding of the tribunal’s reasoning.  The tribunal considered that, in the absence of the relevant accident, the claimant would have gone on working “for a number of years”.  Their findings, which I have admittedly found to be flawed, were that the claimant had suffered significant physical disability as a result of the relevant accident and that the disability had been incapacitating for two and a half years.  On the basis of those findings, their approach to functional overlay was not inappropriate.  They were certainly entitled to find that it was attributable to the accident during the period when they had found her to be incapable of work due to the physical effects of the accident and they were also entitled to find that it was attributable to the accident thereafter, either on the basis that she had continuing, but not incapacitating, physical disability or on the basis that it was a continuing psychological effect of the previous disablement.  Therefore, although the underlying basis for the tribunal’s decision is flawed, I do not consider them to have been guilty of the additional error suggested by the claimant’s solicitors.

15.	The fifth ground of appeal is that the tribunal erred in selecting 31 December 2000 as the date up to which incapacity benefit and income support were recoverable without giving reasons.  I do not entirely accept this submission.  The precise date was plainly an estimate and the tribunal reached their decision in the light of the findings in medical reports on the basis of which they carried out a personal capability assessment and determined whether the claimant would have scored the necessary 15 points from physical descriptors.  However, it is not immediately obvious to me how the tribunal carried out the assessment and which findings in which reports they considered important.  Nor did they deal with the mental descriptors, although it may be arguable that, despite the presence of functional overlay, they were not really potentially in issue.  There is also another flaw in their decision because they “concluded that by a date some two years or so after the relevant accident [she] would not have been likely to obtain [15] points, and certainly not as a consequence of the relevant accident”.  The first part of that conclusion is a view they were entitled to take but the second part, which admittedly appears not to have been their actual conclusion, reveals an error of law.  Given that the tribunal had concluded that the claimant would not have been incapable of work due solely to causes unconnected with the accident, the tribunal appears to suggest that the payment of benefit would not have been attributable to the accident if, say, she had scored ten points in respect of causes other than the accident and five points attributable to the accident.  That is not correct.  Benefit would not have been paid but for the accident and, if the other causes were constitutional or predated the accident, the payment of benefit was therefore to be attributed to the accident (see my decisions in R(CR) 3/03 and R(CR) 2/04 for the reasons for this approach).  That, of course, is a point against the claimant rather than in her favour.

16.	It is common ground between the claimant and the Secretary of State that the tribunal’s decision should be set aside.  In view of the difference of opinion between Mr Khazim and the last tribunal, I consider that this case should be referred to another tribunal, who will have a medically qualified member, for determination.

17.	Although the decision on the compensator’s appeal has not been challenged by the claimant and the Secretary of State has not suggested it is erroneous in point of law, it seems to me that it must fall with the decision on the claimant’s appeal.  As I have already said, they were both appeals against the same certificate.  Effectively, there was one decision and the findings of fact necessary to determine the two appeals are too intimately linked for the appeals sensibly to be separated.  

18.	I direct the Secretary of State to make, within one month of the date of this decision, a further written submission to the tribunal, justifying the inclusion of the benefits in the certificate of recoverable benefits or else conceding the appeals.  The original submissions to the tribunal simply failed to respond to the appeals and the evidence adduced by the claimant and compensator in support of them.  The circumstances of these cases illustrate clearly why it  is not appropriate for the Secretary of State to sit on the fence as though this was merely a dispute between the claimant and the compensator.  The compensator is interested only in the disability living allowance, which was not deducted from the compensation paid to the claimant, and succeeded before the last tribunal on the basis that the benefit ought not to have been paid to the claimant.  The claimant has no interest in the tribunal’s decision in respect of disability living allowance but would presumably argue that it was properly paid to her and was paid in consequence of the relevant accident.  The Secretary of State presumably argues that the benefit was properly paid and that it was paid in consequence of the relevant accident.  Thus, his case is different from both the compensator’s and the claimant’s.  In his representative’s submission to me, he has responded in part to the compensator’s grounds of appeal by submitting that it is not relevant that the claimant did not claim compensation for mobility and care needs, but it is implicit in the compensator’s case that the reason there was no claim for compensation was because she did not have any relevant loss.  The answer may be that a claimant can have the requirements without having suffered any financial loss for which she could claim special damages but, in any event, the Secretary of State now needs to answer the last tribunal’s reasoning which, of course, supports the compensator’s case.  Similarly, in relation to the other benefits, the Secretary of State needs to respond to Mr Khazim’s opinion.  It is not good enough simply to summarise his findings.  The Secretary of State needs to explain why those findings either support his decision to include the benefits in the certificate of recoverable benefits or else should not be accepted.  The claimant accepts that her submissions call into question her entitlement to disablement benefit.  Therefore her case is distinguishable from the case advanced by the claimant in CCR/8023/95, to which reference was made in the original submission to the tribunal, and the Secretary of State needs to indicate whether he still regards disablement benefit as having been properly awarded.

	(Signed)	MARK ROWLAND
		Commissioner
		30 June 2004