CCR/1251/2003

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	I allow the claimant’s appeal.  I set aside the decision of the Leeds appeal tribunal dated 17 February 2003 and I substitute my own decision which is that the Secretary of State must issue a fresh certificate of recoverable benefits, specifying as recoverable disablement pension and incapacity benefit paid up to 4 November 1998.

REASONS

2.	The claimant suffered an industrial accident on 4 May 1997.  He was subsequently awarded disablement pension in respect of that accident.  He was also awarded incapacity benefit from 25 October 1997 and disability living allowance, comprising the higher rate of the mobility component and the middle rate of the care component from 24 October 2001.  He sued his employers, who obtained a certificate of recoverable benefits, specifying as recoverable under the Social Security (Recovery of Benefits) Act 1997 all the above benefits in so far as they were paid up to 3 May 2002.  On 4 July 2002, the compensation case was settled at the doors of the Huddersfield county court and an order was made by consent.  Judgment was entered for the claimant in the sum of £33,774.30, including interest, and it was recorded “that the loss of earnings is limited to Eighteen month period following the accident”.  It was ordered that a payment into court of £7,500 should be paid to the claimant’s solicitors, with the balance of £26,274.30 being paid within three weeks.  The payment into court had been reduced from a gross sum of £26,913.68 by deducting from it the whole of the £18,354.32 specified in the certificate of recoverable benefits in respect of disablement pension and incapacity benefit.  It appears that a similar deduction was made from the compensation ordered to be paid by the court because it was the claimant, rather than the compensator, who challenged the certificate by appealing on the ground that it should not have included within it benefits paid more than eighteen months after the accident.  The Leeds appeal tribunal dismissed the claimant’s appeal.  He now appeals against the tribunal’s decision with my leave.

3.	When I granted leave to appeal, I said:

“It appears that there were three possible scenarios: (1) that the claimant was disabled throughout the relevant period but that the symptoms were attributable to the accident only during the first part of the period (the conclusion in the joint report by Mr Deacon and Mr Weighill), (2) that the claimant was disabled throughout the relevant period and that the symptoms were attributable to the accident throughout that period (the initial view of Mr Hamilton) or (3) that the claimant was disabled only during the initial part of the relevant period and that his symptoms during that part of the period were attributable to the relevant accident (the basis upon which the claim for compensation appears to have been settled).

The tribunal appear to have rejected scenario (1) because it was inconsistent with scenario (3).  They then appear to have rejected scenario (3) and appear to have assumed that it necessarily followed that scenario (2) was correct.  However, if they rejected scenario (3), it seems to me that they should have re-considered scenario (1) for which the claimant was implicitly arguing, even though that represented a change from his pre-trial position and was also inconsistent with continued entitlement to disablement benefit.  It is arguable that the tribunal thereby erred in law.

I observe that, had the compensator deducted under section 8 of the Social Security (Recovery of Benefits) Act 1997 only 18 months’ worth of benefit from the gross compensation, as it is arguable they should have done (see Williams v. Devon County Council [2003] EWCA Civ 365), the injured person would have been content and the burden of appealing would have fallen on the compensator who could have argued in the alternative for scenario (1) or scenario (3).  The Secretary of State succeeds in these proceedings only if scenario (2) is accepted.  The injured person will presumably wish to succeed on scenario (1) because scenario (3) appears inconsistent with the award of any benefits in the latter part of the relevant period.  Those advising him will no doubt have warned him of the possible implications of scenario (3) being accepted in these proceedings and thereafter adopted by the Secretary of State in relation to the claimant’s past and future entitlement to benefit.”

My reference to Williams v. Devon County Council was misconceived but I have today issued a decision (CCR/427/03) in which I have reached the conclusion I mistakenly attributed to the Court of Appeal.  I should also add that, although it seems fairly clear that the compensator had scenario (3) in mind when the case was settled, it does not necessarily follow that the claimant did as well and he may have had scenario (1) in mind.  Alternatively, he may have had in mind an entirely different scenario but also have taken into account the risks of litigation.

4.	The Secretary of State’s observations are brief.

“1.	This submission is made in accordance with section 14(8)(a)(i) of the Social Security Act 1998.  I agree with the grounds of appeal.

2.	I submit that the facts of the case are sufficiently well documented.  I therefore request that the Commissioner set aside the tribunal’s decision and substitute the decision that the tribunal should have made, namely that the period of benefit that is attributable to the accident was for a period of benefit that is attributable to the accident was for a period of not more than 18 months following the accident to the claimant on 4.5.97.

3.	I do not consent to a decision without reasons as provided by regulation 28(2) of the Commissioner’s Procedure Regulations 1999.

4.	An oral hearing is not required.”

5.	I set aside the tribunal’s decision because I am satisfied that it is erroneous in point of law for the reason I suggested when granting leave to appeal.  However, as far as substituting a decision is concerned, all three of the scenarios I identified were open to the tribunal and are open to me.  The Secretary of State has not advanced any reason for his submission that I should prefer either of scenarios (1) or (3) to scenario (2) and has not made any suggestion as to which of scenarios (1) and (3) should be preferred.  It may be implicit in the support of the claimant’s grounds of appeal that he supports scenario (1).  In any event, his position now is completely different from the position he took before the tribunal.  In the absence of any explanation at all for his concession I do not propose to examine in detail the medical evidence and video evidence in this case.  I give my decision on the simple grounds that it is consistent with the basis upon which the personal injuries action was settled and with both the claimant’s submission and the Secretary of State’s concession.  If the Secretary of State wants more detailed reasons on questions of fact in a case that he has conceded on its facts, it is necessary for him to provide a more detailed submission, explaining the basis of the concession.  Apart from anything else, only a more detailed submission gives a claimant a proper opportunity to comment on such issues as may arise.

	(Signed)	MARK ROWLAND
		Commissioner
		15 October 2003