CCR/2320/2000

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	I allow the compensator’s appeal.  I set aside the decision of the Manchester appeal tribunal dated 7 January 2000 and I refer the case to a differently constituted tribunal for determination.

REASONS

2.	The claimant suffered an accident at work on 3 April 1992.  She sued her employer and the case was settled when the claimant accepted a compensation payment of £3,500 in 1998, by which time the Social Security (Recovery of Benefits) Act 1997 had come into force.  The Secretary of State recovered £18,366.26 from the compensator.  That represented 80% of the statutory sick pay and all the invalidity benefit, incapacity benefit, disablement benefit and disability living allowance (mobility component) paid to the claimant within five years of the accident.  The compensator appealed against the certificate of recoverable benefits, submitting that the accident had given rise only to minor injuries and that the benefits had not been paid in respect of those injuries.  The tribunal dismissed the appeal on the ground that the claimant was at least 1% disabled in consequence of the relevant accident throughout the relevant period.  The compensator sought leave to appeal, conceding that the tribunal’s approach appears to have been based on a concession made by counsel for the compensator but submitting that it was nonetheless wrong in law.  Leave to appeal was granted by a full-time chairman.  The appeal is supported by the Secretary of State who accepts that the tribunal’s approach was wrong.  It is common ground that the case should be referred to another tribunal.

3.	I accept that the tribunal’s decision was erroneous in point of law.  The question before them was not simply whether the claimant was disabled in consequence of the relevant accident throughout the relevant period.  That was a starting point but they had to go on and consider whether such disablement was an effective cause of the payment of benefits.  That required them to consider the significance of the relevant disablement in relation to the conditions of entitlement of the benefits.  In the course of doing so, they were entitled to conclude that benefits ought not to have been paid at all and that for that reason the relevant disablement was not a cause of the payment of the benefits (R(CR) 1/02 and R(CR) 2/02)).  If there were other causes of disablement apart from the relevant accident, the tribunal had to consider the relationship of the various causes, along the lines I suggested in R(CR) 1/01.

4.	In this case, the compensator’s primary argument was that the relevant accident had ceased to be a cause of any disablement long before the end of the relevant period.  That argument was rejected by the tribunal.  However, the tribunal appear to have considered that the disablement resulting from the relevant accident had not been sufficient to justify the award of disablement benefit.  If that was their view, they should have found disablement benefit not to be recoverable. In relation to the other benefits also, the tribunal had first to consider whether there was evidence showing that the claimant ought not to have been awarded the benefits.  In particular, the compensator had submitted evidence suggesting that the claimant was not sufficiently disabled to qualify for the mobility component of disability living allowance during the period when it was in payment.  The tribunal should have considered that issue.  If they were not satisfied that the benefits ought not to have been paid, they had to consider whether the relevant accident was an effective cause of the claimant satisfying the conditions of entitlement.  The tribunal to whom this case is now referred must consider all these issues.  They must bear in mind that the appeal can be allowed only to the extent that it is shown that benefits were paid otherwise than in respect of the relevant accident – the burden of making out a case being placed that way round by section 11(1)(b) of the 1997 Act – but all matters of fact will be at large before them.

5.	The claimant has been kept abreast of the progress of this appeal.  Technically she is not a party to these proceedings and will not be a party to the proceedings before the tribunal, although it will, of course, be open to the Secretary of State to ask her to give evidence to the tribunal.  Any decision made by the tribunal in the present case will not place any liability on her.  The Secretary of State’s case appears to be that the benefits were properly paid to the claimant.  If he changes his mind and decides to take any action, which seems unlikely after this length of time, the claimant will have the opportunity of challenging his decision then.  

(signed)	M. ROWLAND
Commissioner
12 April 2002