[2007] UKSSCSC CCR_1022_2006 (26 January 2007)
CCR/1022/2006

DECISION OF THE SOCIAL SECURITY COMMISSIONER
  
1.	I allow this appeal.  I set aside the decision of the Southampton appeal tribunal dated 29 November 2005 and I refer the case to a differently constituted appeal tribunal.  The tribunal should note that the second respondent, Portsmouth Hospitals NHS Trust, has no practical interest in the appeal and has indicated a desire not to be treated as a party to the proceedings.

REASONS

2.	On 19 May 2005, judgment was given by consent in Southampton county court against Portsmouth Hospitals NHS Trust on the appellant’s claim for damages for personal injury arising out of medical negligence.  Agreement had been reached by the parties on or before April 2005.  The gross damages awarded amounted to £100,000 but £16,799.45 was deducted under section 8 of the Social Security (Recovery of Benefits) Act 1997, pursuant to a certificate of recoverable benefits, dated 18 February 2005.

3.	The appellant had been admitted to hospital on 9 October 2000 on referral by his general practitioner.  He was experiencing back pain and weakness and loss of sensation in his legs.  On 11 October 2000, an urgent MRI scan was ordered.  However, the proposed scan was then reclassified as non-urgent and it did not take place until 21 October 2000.  It revealed a severe disc prolapse, compressing the cauda equina.  The appellant underwent surgery shortly thereafter.  There were then further complications, including infective discitis in 2002 and an episode of thoracic spinal cord compression in early 2003.  The second respondent accepted that it had been negligent in not arranging the scan earlier and that had there not been that delay the surgery would have been conducted sooner and the appellant would have suffered less disability.  It was on that basis that the compensation was paid.

4.	The appellant appealed against the certificate of recoverable benefits on the ground that he would have suffered a considerable amount of disability even if the hospital not been negligent so that the benefits included in the certificate had been “paid otherwise than in respect of the accident, injury or disease in question” (see section 11(1)(b) of the 1997 Act).  The tribunal dismissed the appeal.

5.	The statement of reasons says –

“The evidence does not support [the appellant’s] contention.  There is no history of pre-accident symptoms of condition or even asymptomatic illness.  The incident giving rise to the injury that led to the hospital admission in 2000 was serendipitous in the sense that a similar action could have been performed without ill effect or with uneventful recovery.

“… importantly the consensus of opinion is that after a period of recovery the appellant reverted to a situation similar to that preceding the symptoms attributable to the discitis etc and so attributable to the consequences of the medical accident.  Note in particular p218, 1.4, 4.4 and 4.6.  In 4.7, Mr Kerr specifically concludes that the progressive change in the function of his R leg is a consequence of the delay in investigation and treatment which gave rise to the litigation.  The opinions of the 2 medical experts are distilled in the joint report which supports the contention that the events of 2002 resulted in a temporary deterioration but that the functional loss remaining is due to the consequences of the delay which is the subject of the claim.”

6.	What Mr Kerr, a consultant neurosurgeon, had said in paragraph 4.7 of his report dated 27 November 2003 was –

“I do not, therefore, believe that the subsequent problems that [the appellant] has had, i.e., the presumed MRSA discitis and the episode of thoracic spinal cord compression, are in any way related to the delays in his original diagnosis.  Furthermore, and as I indicated in my first report, I think it is the progressive change in the function, particularly of his right leg, which resulted from the delay in his investigation and treatment, that had that been recognised earlier, on balance of probability, the function of his right leg would have been much improved.  If that had been the case I think, again on balance of probability, that [the appellant] would have been able to mobilise much more easily, perhaps with the use of one stick rather than two sticks.  He would, however, continue to suffer back pain in much the same way ….”

Thus, as the appellant’s solicitor pointed out in the letter of appeal to the tribunal, it appears to have been Mr Kerr’s view, accepted by both parties to the claim for damages, that, if there had been no delay in arranging the MRI scan, the appellant would still have suffered problems in his left leg and severe back pain and would have been so disabled that he would still have needed at least one stick to get about and that he might still have required two sticks.

7.	In my judgment, the tribunal erred in not drawing a distinction between the injury in respect of which the compensation was paid (i.e., the disablement arising out of the delay in arranging the MRI scan) and the injury that had led the appellant to be admitted to hospital in the first place.  Only benefits paid in respect of the former were recoverable.  To say that there was “no history of pre-accident symptoms” was plainly wrong.  Apart from the fact that this was not an “accident” case but was simply one of “injury”, it is obvious that the appellant had symptoms before the delay in arranging the MRI scan occurred.  It was because he had significant and unexplained disability at that stage that the scan was needed.  The tribunal appears entirely to have ignored the fact that the appellant had significant disabilities other than the loss of function in his right leg and that there was evidence that the main cause of his lack of mobility was his severe back pain.  The tribunal also appears to have accepted that the subsequent temporary worsening of his condition was not attributable to the delay in arranging the MRI scan but it did not then consider whether any benefits listed in the certificate of recoverable benefit were paid in respect of that worsening and were therefore not recoverable.

8.	In fact, the only benefits listed in the certificate of recoverable benefits were the care and mobility components of disability living allowance.  The question for the tribunal was whether, had there not been the delay in arranging the MRI scan and therefore a delay in surgery, the appellant would have qualified for disability living allowance at the rate at which it was awarded or at a lower rate.  If the answer was “yes”, the benefit was to that extent not recoverable.  The tribunal’s erroneous approach to this case led to it failing to make any finding as to the extent to which the appellant would have been disabled if the relevant injury had not occurred.  This case must therefore be referred to another tribunal.

9.	When I granted leave to appeal, I observed that paragraph 20 of the Secretary of State’s submission to the tribunal (which is inconsistent with what I have said in the last paragraph above) was plainly wrong.  The Secretary of State’s current representative has not disagreed.  Equally, the appellant has not disagreed with my observation that his second ground of appeal to the tribunal was misconceived.  I need say no more about either of those matters and I mention them only so that the new tribunal does not overlook them and, in the case of the Secretary of State’s error, in the hope that it will not be repeated in other cases in the future.

	(signed on the original)	MARK ROWLAND
		Commissioner
		26 January 2007