CSCR/746/97

The Social Security and Child Support Commissioners
SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT 1992
SOCIAL SECURITY ADMINISTRATION ACT 1992
APPEAL FROM DECISION OF SOCIAL SECURITY APPEAL TRIBUNAL ON A QUESTION OF LAW
DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This claimant’s appeal fails. I find no error of law in the decision of the Glasgow social security appeal tribunal dated 6 February 1997 such as to require my interference. The appeal is, accordingly, dismissed.

2. This appeal was put out for oral hearing by reason of a Nominated Officer’s grant of a request to that effect made on behalf of the claimant, the Secretary of State resisting the appeal. At the hearing the claimant was represented by Mr E Toner, Welfare Rights Officer with the Shettleston Housing Association, Glasgow. The Secretary of State was represented by Mr I G Armstrong, Advocate, instructed by the Solicitor in Scotland to the Department of Social Security. I am grateful for their assistance.

3. This case has had a somewhat prolonged and unfortunate history. In June 1993 the claimant appealed against an apparent certificate of total benefit issued the month before and purporting to show the total amounts of benefit paid to him because of an injury in March 1989. The certificate was directed to a compensator for the purposes of recovery of that benefit in accordance with the Scheme set out in Part IV of the Social Security Administration Act 1992.

4. The claimant’s grounds of appeal challenged the extent of accident-related invalidity benefit in respect of arthritis which he claimed had nothing to do with the accident. That matter went before an appeal tribunal, the details of whose decision I need not rehearse. The Secretary of State appealed that decision and in April 1996 Mr Commissioner May QC set aside the tribunal decision and remitted the case for rehearing with directions. It is convenient to note that his decision followed an oral hearing and that throughout the appellate proceedings the compensator has made no appearance. It is the appeal tribunal’s determination following upon that rehearing that it is now brought before me by the claimant.

5. The tribunal decision refused the appeal and the grounds of appeal from it and upon which the chairman granted leave were two in number. The first challenged a holding by the tribunal that the claimant was personally barred from challenging the validity of the certificate. The second ground is that the Act of 1992 gave the appellant authority to challenge the validity of the certificate - unfortunately referred to as a "decision" in the grounds of appeal. It follows that by that stage, that is to say the hearing before the second appeal tribunal, no issues arose specifically pointing to amounts or periods of benefits, or the relevance of benefits to the accident.

6. Mr Toner’s submission was commendably succinct. His contention was that section 98 of the Administration Act conferred authority to challenge the validity of the certificate. The ground of challenge was that the certificate although provided with a place for signature, and so no doubt the conferring of proper authority, had no such signature recorded either in manuscript or typescript. The place for "signature" was blank. In that regard he was referring to the copy certificate appended as documents A1 and B to the original case papers before Mr Commissioner May. I accept that that is the only source now available for the form and terms of the certificate and I am prepared, for the purposes of this case at least, to accept that said documents A1 and B amount to a full and accurate copy of the certificate. Mr Toner pointed to the grounds of appeal in section 98(1) which are open at the instance of, what for this purpose must be regarded as the "victim", the present appellant, namely:-
"(a) that any amount, rate or period specified in the certificate is incorrect,
or
(b) that benefit paid or payable otherwise that in consequence of the accident, injury or disease in question has been brought into account."
Mr Toner’s point was that without some signature such burden of proof as there might be on the Secretary of State to establish the total benefit said to have been paid on account of the accident could not be discharged. Were it otherwise the victim would have no basis upon which to be sure, or even be able to check, that the amounts, rates, periods and benefits concerned were accurate. He pointed to the straight-forward overpayment of benefit case where the burden was on the adjudication officer to establish what relevant benefit had been paid and when.

7. In reply Mr Armstrong made three points. He commenced by setting out the mechanics of Part IV of the Act. He explained, although it was a digression into facts not before the tribunal, that prior to 1995 certificates such as the one at the heart of the present case would have had the principal alone signed and sent to the compensator and only a copy went to the victim. Since 1995 certificates have not been signed manuscript but do bear the name of the responsible officer. 

8. From that aside Mr Armstrong turned to section 82(1) of the Act which provides a prohibition against the payment of compensation by a compensator to a victim until the Secretary of State "has furnished [the compensator] with a certificate of total benefit". There are then detailed provisions as to what is to be done once there has been such a furnishing with a certificate. Section 95(ii) provides:-
"Where the Secretary of State furnishes any person with a certificate of total benefit, he shall also provide the information contained in that certificate to the person who appears to him to be the victim in relation to the compensation payment in question."
Accordingly, submitted Mr Armstrong, the Secretary of State is not obliged to furnish a victim with a certificate. Only the compensator is entitled to a certificate which is the signal for certain action by him. The victim is simply entitled to be given the details that are set out within the certificate. Section 84 provides that the compensator has to apply for a certificate and sub-section (2) sets out what is to be in the certificate - and so, of course, what is to be intimated to the victim. Mr Armstrong’s case was that thus the victim had no concern with the authenticity of the certificate but only with the accuracy of its contents and that was reflected in the scope for appeal under section 98(1).

9. Mr Armstrong next submitted that there was a fundamental distinction between a certificate furnished by the Secretary of State and the decision of an adjudication officer in cases, such as that suggested by Mr Toner, of overpayment. He referred, first, to the need for decision notices to be signed by the chairman of a tribunal in terms of the Social Security (Adjudication) Regulations 1995. That, he contended, was to provide for authenticity and to coupe authority thereon. That, however, would not apply at the time of this tribunal’s hearing since the provision about signing was only introduced to the 1995 Regulations in October 1996 and the 1995 Regulations themselves would not have applied at the date of the certificate in this case: the 1987 Regulations would have been applicable and in them it was only requisite for a medical appeal tribunal to have their decision signed. Nonetheless, I think that my decision CSIS/66/94 effectively provided that tribunal decisions should be signed, although whether there was an actual signature on a master copy, as it were, might only require to be considered where the accuracy of the tribunal decision was under question. But even yet, there is no requirement for an adjudication officer to sign this decision - compare regulation 18 with the current version of regulation 23 of the Social Security (Adjudication) Regulations 1995. But I am, in any event, of the view that this is a somewhat sterile point. Section 84(3), dealing again with the certificate of total benefit, provides that:-
"On issuing a certificate of total benefit, the Secretary of State shall be taken to have certified the total benefit as at every date for which it is possible to calculate an amount..."
Subsequent provisions allow for estimates, expiry dates, replacement certificates and the like. But that wording, to my mind, means that a document baring to be a certificate, once issued and there seems to be no dispute in this case about that, the Secretary of State is to be taken as having certified total benefit - a formulation of words which tends, usually, to preclude further enquiry into the subject certified. And had signature been of the essence of a valid certificate then as it seems to me, there would have been a provision to that effect, such as one finds, for example, in paragraph 8 of Schedule 2 to the Act where there is provision for certification of certain documents in these words:-
"A document bearing a certificate which -
(a) is signed by a person authorised in that behalf by the Secretary of State..."
If Parliament has provided in one piece of legislation for a Secretary of State’s authorised signature for certain certificates but not in the case of other certificates the normal presumption, following the brocard expressio unius est exclusio alterius, is that Parliament did not intend or require that there should be signatures in the latter situation.
10. Upon the basis of the foregoing I am persuaded, first, that only the compensator has a right to challenge the formal validity of a certificate of total benefit. I am further persuaded that, in any event, a signature is not a requirement without which such a document would be invalid for recoupment purposes. I so couch my view because I am further satisfied, having regard to the terms of section 98(1) compared with the much wider grounds of appeal contained in section 22 in respect of adjudication officer’s decisions, that issues of validity, quantum valeat, are not for the adjudication system. Mr Armstrong suggested that my decision R(IS) 3/92, approved by the Inner House, supported such a conclusion and I accept that submission. The analogy with the reported decision is emphasised when regard is had to section 98(7). That provides that where an appeal is taken under section 91(1) the Secretary of State is to refer the questions arising within the premise terms of said sub-section (1) to an appropriate tribunal. Subsequent provisions provide what the tribunals, social security and medical appeal tribunals, are to do and how, in the end of the day, it may be necessary, under sub-section (9) for the Secretary of State in conformity with their decisions to confirm or replace his certificate. There is then, at sub-section (11) provision for appeal to a Commissioner upon the ground that one of the lower tribunals has erred in point of law. For all these reasons I conclude that validity, properly so called, of a certificate is not a matter within the jurisdiction of a tribunal although it may be a matter proper, if an appropriate case should ever arise, for consideration by the Higher Courts.

11. Mr Armstrong’s final submission was that the tribunal, given the matters referred to them, had, by their finding of fact number 9, determined the correct details which should have been in the certificate in this case. That was something rather different from what had been in the actual certificate. As the tribunal had then refused the appeal it appeared, I suggested, that their decision was possibly erroneous and that some further action was required. Mr Armstrong, on instructions, indicated that he wished nothing done about that point and since, to be properly raised it would have required, in effect, a cross appeal by the Secretary of State, I was content to let he matter rest since it did not appeal to affect adversely the interests of the appellant. But, continued Mr Armstrong, the tribunal having determined the sole matter really before them had exhausted their jurisdiction and so in effect there was no scope for an invalidity question because the tribunal had determined what should have been in the certificate and in respect of which, if he had been so minded, the Secretary of State could have issued a replacement certificate. Accordingly, submitted Mr Armstrong, there was never a question before the appeal tribunal really to determine the validity of the certificate: what they had to determine was whether its content was correct or not and having determined that it was, strictly speaking, incorrect they had really answered the validity point.

12. Having dealt with matters thus far, Mr Armstrong declined to deal with any question of personal bar. I understood his position to be that he was not supporting the tribunal decision on that matter. Again, in the absence of a cross appeal, if his other submissions were correct then his position about personal bar again could not adversely affect the appellant. I am not entirely sure about that, but I am clear that what the tribunal were concerned about was the simple fact that after all the prolonged previous proceedings it had only been at the very last stage of this case that the validity point had been raised. If of any substance it was really a preliminary point and should have been so taken. But, since, upon the whole matter, I am satisfied for the foregoing reasons that validity was not for the tribunal at all then whether they regarded the claimant as being personally barred from raising it, or themselves barred from considering it, the result is necessarily the same. According to their finding number 8 they proceeded upon the basis, as in my judgment they were bound to do, that the document brought before them by the claimant contained the information to which in the circumstances he was entitled.

13. In response to Mr Armstrong’s submissions Mr Toner felt unable to make response, I have some sympathy for his position, but, having considered the matter, I am persuaded by Mr Armstrong to the extent indicated.

14. For the foregoing reasons this appeal is disallowed.

(Signed)
W. M. Walker QC
Commissioner 
3 July 1998