CCR/3558/2000

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The Secretary of State’s appeal is unsuccessful.  Indeed, the decision I give is even less favourable to the Secretary of State than the tribunal’s.  I set aside the decision of the Leeds appeal tribunal dated 21 June 2000 and I substitute my own decision which is that the Secretary of State must issue a fresh certificate of recoverable benefits, specifying only £169.02 statutory sick pay paid in respect of the period from 6 August 1993 to 5 September 1993 (only 80% of that sum being recoverable by the Secretary of State).

REASONS

2.	I held an oral hearing of this appeal at which the Secretary of State was represented by Miss Deborah Heywood, of the Office of the Solicitor to the Department for Work and Pensions and the Department of Health, and the compensator was represented by Mr Stephen Turner of counsel, instructed by Praxis Partners, solicitors, of Leeds.  The claimant neither appeared nor was represented, in circumstances that I shall explain in more detail below.  I am grateful to both Miss Heywood and Mr Turner for their helpful submissions.

3.	The claimant had an industrial accident on 5 August 1993 when he was injured while lifting a heavy panel and suffered sudden severe pain in his lower back.  He was unable to return to work for a month, until 6 September 1993, and he received statutory sick pay during that month.  On 21 December 1993, he was digging a trench when his back “went” again and he was away from work and receiving statutory sick pay from 22 December 1993 until 6 February 1994.  He then returned to work but, on 10 March 1994, his back became painfu1 again and he was away from work for the rest of the month.  He returned to work again for a short period but has not worked since 13 May 1994.  Statutory sick pay was paid during those absences until the claimant became eligible for invalidity benefit, with some income support, and then incapacity benefit.  Disablement benefit was also paid with effect from 24 November 1993, following assessments of adjudicating medical authorities finding the claimant to have suffered a loss of faculty due to the accident on 5 August 1993.  Disablement was assessed at 25% for the first three years and at 30% thereafter.

4.	The claimant sued his employers in respect of the accident on 5 August 1993.  The case was not settled until 1999 when £7,500 compensation was paid in respect of general and special damages.  The Secretary of State had issued a certificate of recoverable benefits listing all statutory sick pay paid until 1 April 1994, and all invalidity benefit, incapacity benefit and disablement benefit paid during the five years following the accident.  The compensator duly paid £26,166 to the Secretary of State.  A review of the certificate resulted in no change and the compensator appealed to the tribunal.

5.	The compensator relied upon medical reports from Mr C J Tulloch FRCS, an othopaedic surgeon, Mr R Myles Gibson FRCS, a neurosurgeon and Mr A Smith FRCS, another orthopaedic surgeon.  Mr Tulloch and Mr Myles Gibson had been instructed by the compensator in the civil litigation and Mr Smith had been instructed by the claimant.  Mr Tulloch’s view on 24 February 1998 was:

“After reviewing this man’s medical records it is evident that he did not complain of pains of any significance prior to his incident on 5th August 1993.

He recovered from this relatively rapidly and then in December developed more serious problems and has had ongoing problems since then.

No anatomical cause has really been found for the severe symptoms and disability that this man describes.

It has been suggested that his problems are non-organic and I suspect this is true.

I little doubt that he sustained a strain of his back in August 1993 but I would have expected him to have made a full recovery from this and I cannot see any real orthopaedic reason why he has such significant ongoing problems.”

On 31 March 1998, Mr Myles Gibson wrote:

“The indexed accident would not have caused bulging of a normal healthy lumbar disc and it would be my view that the patient must have had pre-existing lumbar discogenic degenerative disease at the time of the indexed accident.  Nonetheless he was non-symptomatic up to that point in time and the accident precipitated his symptoms and his consequent complaints.  In addition to his continuing back ache and leg pain there is a significant functional or psychosomatic overlay present now in his case.”

He also expressed the view that, even if the accident had not occurred, the claimant (who was by then 37) would have experienced the same sort of symptoms when he had reached his mid-40s or late 40s.  By 4 December 1998, he had seen the claimant’s medical records which revealed that he had complained of lumbar pain in 1980 and 1990 and this caused him to write:

“... I think there is indeed a previous history here which [the claimant] had not made available to me when I took his history and examined him and that [sic] I think he had a more vulnerable back that [sic] he had given me in history.”

On 31 March 1999, Mr Tulloch wrote:

“This man, as witnessed by his MRI scan, has minor degenerative changes in his lumbar spine which would not have been expected to have caused any symptoms of significance, and certainly not to have presented a clinical picture that [the claimant] demonstrates.”

I don’t think you could say with certainty that these changes would necessarily have caused problems in his back.”

I think I would have expected recovery from the type of injury that he describes, without his overwhelming psychological problems to have occurred over a matter of probably some three or four months; to an extent, this is an obvious answer in that he was able to return to work following his initial injury and then strained his back again in December.” 

Mr Myles Gibson, however, remained of the view that the underlying degenerative condition would have produced symptoms in due course even if the accident had not occurred.  He agreed that,

“[I]n the absence of previous changes in his back and previous symptoms I would have expected his complaints to have settled within a matter of a few months”,

but he expressed no view as to the effects of the accident in the light of those previous changes and symptoms.  Mr Smith, who was unaware of the previous history but who had nonetheless formed the view that the claimant’s back was already abnormal before the accident, albeit asymptomatic, considered that the claimant would have had problems with his lumbar spine “within a few years probably 4 or 5”.

6.	The Secretary of State relied on the evidence gathered when considering the claimant’s claims for benefit.  The evidence in respect of the claims for invalidity benefit and incapacity benefit did not attribute a cause to the back pain and so is not of significance.  The claimant claimed disablement benefit in respect of the accident on 5 August 1993.  He mentioned to the adjudicating medical authority examining him on 13 October 1994 that his back had gone again when he was digging on 21 December 1993 but it does not appear to have been suggested to him that he seek an industrial accident declaration in respect of that incident and, as far as I am aware, he did not do so.  Neither that adjudicating medical authority nor those who examined the claimant on 9 October 1995, 24 October 1996 or 20 October 1997 referred to any previous history or to the subsequent incident on 21 December 1993.

7.	The compensator’s submission to the tribunal was that they should consider that any benefits awarded more than two years after that accident should not be regarded as having been paid in respect of the accident.  That was put forward as a compromise between the views of Mr Tulloch and Mr Smith.  The Secretary of State submitted that the tribunal were not entitled to go behind the decisions of the adjudicating medical authorities and that the claimant’s back pain was to be attributed to the accident on 5 August 1993 throughout the following five years.

8.	The tribunal accepted neither of those positions.  They said:

“Having considered all the medical evidence we accept Mr Tulloch’s opinion that within 2 or 3 months of the injury sustained on 5 August 1993 [the claimant] had made a full recovery.  Any symptoms which continued thereafter were because of pre-existing back condition aggravated by the subsequent events on 21 December 1993 and 10 March 1994.”

However, following the decision of the Northern Ireland Commissioner in C6/99(CRS), they accepted that they could not go behind the adjudicating medical authorities’ decisions insofar as they applied to disablement benefit but they held that there had been no decision as to causation in respect of statutory sick pay, invalidity benefit, income support and incapacity benefit.  Accordingly, they decided that a fresh certificate should be issued and should not list statutory sick pay paid after 21 December 1993 or any invalidity benefit, income support or incapacity benefit.  The Secretary of State now appeals with the leave of the tribunal chairman.

9.	The original grounds of appeal submitted firstly that the tribunal erred in law in considering that the decisions of the adjudicating medical authorities did not bind them as to the cause of the claimant’s back pain.  However, in the light of the decision of the Court of Appeal in Northern Ireland in Eagle Star Insurance v. Department for Social Development (reported as R1/01(CRS)), reversing C6/99(CRS), and of the decisions of the Tribunal of Commissioners in CCR/6524/99 et al and CCR/2312/00, it is now common ground that the tribunal erred in law in holding that they were bound by the decisions of the adjudicating medical authorities even in respect of disablement benefit.  This is a concession by the Secretary of State in favour of the compensator.  

10.	The second ground of appeal, which was developed before me by Miss Heywood, is that the tribunal failed to give adequate reasons for their decision.  There is no doubt that the tribunal could have explained themselves at greater length.  However, the extent to which a tribunal is obliged to give reasons depends on the way the case is put before them.  In this instance, the Secretary of State’s representative seems to have relied principally on submissions of law and did not develop arguments on the facts as far as she might have done.  She was hampered by the fact that no additional evidence had been obtained by the Secretary of State to answer the points made by Mr Tulloch, Mr Myles Gibson and Mr Smith.  That was arguably necessary because the adjudicating medical authorities had not been aware of, and had therefore not addressed, those points.  The Secretary of State, however, was made aware of them as soon as the appeal was lodged but did nothing to strengthen his case.  When a chairman is asked for a statement of reasons for a tribunal’s decision, he is obliged to give proper reasons for the decision and must deal with the principal submissions of the parties.  However, he is not obliged to deal with points that might have been made by the parties but were not, save where they are glaringly obvious.

11.	Here the tribunal were faced with alternative hypotheses.  Either the incident of 21 December 1993 merely represented an aggravation of a condition that was at least partly attributable to the accident of 5 August 1993 or else it represented an aggravation of a condition to which the accident of 5 August 1993 was no longer a contributory factor.  As Miss Heywood submitted, there is much to be said for the former hypothesis, and I am by no means certain that I would have reached the same conclusion as the tribunal.  However, the latter conclusion was supported by Mr Tulloch and it seems to me plainly to have been open to the tribunal to adopt it.  In adopting Mr Tulloch’s opinion, they adopted his reasoning.  In this regard, this case is distinguishable from R(A) 1/72, on which Miss Heywood relied, because in that case there appear to have been conflicting conclusions reached by medical practitioners, neither of whom supported his conclusion by reasoning.  It was therefore necessary for the delegated medical practitioner to explain the conclusion he adopted.  Here, it is implicit that the tribunal found Mr Tulloch’s reasoning compelling.  As it was clear what his reasoning was and as it was not undermined by the reasoning of any of the other evidence, albeit that contrary opinions had been expressed, the tribunal were not obliged to give further reasons for accepting his view.  His reasoning essentially was that the sort of injury that the claimant suffered on 5 August 1993 would not normally have had effects lasting more than three or four months – not two or three months as the tribunal stated, but nothing turns on that discrepancy – and the fact that the effects had not lasted longer in this case was shown by the fact that the claimant had returned to heavy work by 21 December 1993.  It is true that the claimant had said that he had returned to heavy work only because there was no light work and only with the aid of painkillers, but the Secretary of State had not adduced any evidence as to how severe any alleged problems were immediately before the incident on 21 December 1993.  It is also true that Mr Tulloch had reserved his position as regards the psychological factors, but it seems to me there was no evidence upon which the tribunal could have found that psychological factors present after 21 December 1993 arose out of the accident of 5 August 1993, once it was found that the physical factors present then all related to the later incident.

12.	I am therefore not satisfied that inadequate reasons have been given for the tribunal’s finding that the claimant’s disabilities from 21 December 1993 were not attributable to the accident of 5 August 1993.  It is, however, accepted that the tribunal erred in considering that they were bound to hold the disablement benefit to have been paid in respect of the accident of 5 August 1993.  I do not regard it as necessary to refer this case to another tribunal.  As the last tribunal were entitled to find that the claimant’s disabilities from 21 December 1993 did not arise out of the accident of 5 August 1993 and as adequate reasons have been given, I consider that I should adopt that finding.  It follows from that finding that the claimant should not have been awarded disablement benefit in respect of the relevant accident for any period from 21 December 1993.  As to the period from 24 November 1993 to 20 December 1993, it seems probable that, even if the tribunal had accepted that the claimant had some residual disablement during that period, which seems unlikely, they would have found the extent of his disablement to have been less than 14%, given his participation in heavy work, so that no disablement benefit would have been payable.  Accordingly, I accept Mr Turner’s submission that none of the disablement benefit paid to the claimant may be recovered from the compensator by the Secretary of State and I give the decision set out in paragraph 1 above.

13.	I return to the position of the claimant in these proceedings.  He was not a party to the proceedings before the tribunal but was kept informed of the proceedings and given notice of the oral hearing before me.  He applied for a postponement and a change of venue because he was now living in the Home Counties and the hearing was to be in the North of England.  I refused the application because I had doubts that the claimant was a party to the proceedings or would be affected by any decision in the proceedings but I indicated that if it appeared to me during the hearing that he might be affected, I would adjourn the hearing.  Both Miss Heywood and Mr Turner made submissions on the position of claimants in appeals brought under the Social Security (Recovery of Benefits) Act 1997.

14.	There can be no question of a claimant being a party to proceedings under the 1997 Act in a case where there has been no reduction under section 8 in the amount of compensation to be paid to the claimant.  I say that because it is only in such a case that a claimant has a right of appeal under section 11(2)(b) and I can see no reason why there should be a class of case where a claimant can be a respondent but not an appellant.  Essentially, the Act envisages three sets of bipartite proceedings: between the claimant and the compensator when the claimant sues for compensation, between the claimant and the Secretary of State when the claimant claims benefit and between the compensator and the Secretary of State in connection with the recovery of benefits.  None of those sets of proceedings can bind the person who is not a party to them (see section 12(3) and CCR/6524/99 et al.).  In particular, a claimant cannot be bound by a decision made on a compensator’s appeal that implies that he is not entitled to benefit.  If the Secretary of State chooses to act on such a finding, a tribunal hearing an appeal by a claimant is entitled to take a different view.  I therefore do not see how any claimant can have a direct interest in the result of any appeal to a tribunal where no reduction has been made under section 8.  

15.	A claimant is given a right of appeal against a certificate of recoverable benefits where there has been a reduction of compensation under section 8.  Such a right of appeal will be exercised where a claimant contends that benefit should not have been listed in a certificate of recoverable benefits and that there should therefore have been no section 8 reduction in respect of it.  To the extent that a claimant’s appeal may eliminate the section 8 reduction, the compensator will have no practical interest in it because, although a successful appeal notionally should result in a refund to the compensator of benefit recovered by the Secretary of State, the whole of the refund would be payable by the compensator to the claimant (see regulation 11(5) of the Social Security (Recovery of Benefits) Regulations 1997).  To the extent that the claimant’s appeal may result in a further reduction in the sum specified in a certificate of recoverable benefits, the compensator has a separate right of appeal and I do not see why he should be joined in the claimant’s appeal if he has not launched his own.

16.	Similarly, where there has been a reduction of compensation under section 8, a claimant may have a potential interest in an appeal to a tribunal brought by a compensator because a compensator may be obliged to pay to the claimant part of any sum recovered from the Secretary of State).  However, as the claimant has a separate right of appeal, it does not follow that he should be made a party to a compensator’s appeal.  There are cases where a claimant and a compensator have a common interest in challenging a certificate of recoverable benefits.  In such cases, they may both appeal.  Obviously, if they do, the two appeals should be heard together but, strictly, they will be separate bipartite appeals rather than a single tripartite appeal.  Alternatively, they may agree that only one party, usually the compensator who is likely to have the greater resources, will appeal and they may make an agreement as to what should happen in the event of the appeal being successful.  No such agreement can confer on the claimant a right to appear in the compensator’s appeal.  In other cases where only a compensator appeals, the claimant’s case is likely to be that the benefits were properly paid in respect of the accident and were properly recovered by the Secretary of State and that the compensator properly reduced the compensation. In such a case, I do not consider that the claimant has an interest in the outcome of a compensator’s appeal that is sufficient to justify him being made a party to the appeal. The fact that there may be allegations of malingering against the claimant is not relevant because, if the Secretary of State chooses to act on them, the claimant will have the opportunity of responding to them in proceedings connected with his claim to benefit. Of course, the Secretary of State might wish to consider asking a claimant to attend the hearing of a compensator’s appeal as a witness, but that is a separate matter from the question whether the claimant should be a party to the proceedings.

17.	I do not rule out the possibility of there being a case that I have not envisaged where justice demands that a claimant be made a party to a compensator’s appeal or vice versa but, as general rule, only the Secretary of State should be made a respondent to an appeal brought by a compensator or a claimant.  Equally, where the Secretary of State appeals to a Commissioner, the only respondent should be the party who was the appellant before the tribunal.

18.	In the present case, I cannot see any reason for the claimant being a party to the proceedings.  Indeed, the findings of the tribunal do not even carry the implication that any benefit might be recoverable from him in separate proceedings brought by the Secretary of State.  They merely imply that benefits paid after 21 December 1993 were attributable to the incident on that date, rather than the accident of 5 August 1993, and, while that implies an overpayment of about four months’ worth of disablement benefit, it is hard to see how that overpayment could be recoverable from the claimant, given what he told the adjudicating medical authority.  However, since he is aware of these proceedings, I direct that the claimant be sent a copy of this decision.  It will serve to explain the statement to be issued to him pursuant to regulation 11(3) of the 1997 Regulations.

M. ROWLAND
Commissioner
12 February 2002