CCR/5336/1995

Social Security and Child Support Commissioners 
SOCIAL SECURITY ACTS 1975 TO 1990
SOCIAL SECURITY ADMINISTRATION ACT 1992
CLAIM FOR COMPENSATION RECOVERY
DECISION OF THE SOCIAL SECURITY COMMISSIONER
 
MR COMMISSIONER M ROWLAND
Tribunal : 
Tribunal Case No : 
 
1. This is an appeal, brought under section 98(11) of the Social Security Administration Act 1992 with the leave of the tribunal chairman by the "victim" of an industrial accident, against the decision of the Colchester social security appeal tribunal dated 13 April 1995 whereby they dismissed his appeal against a "certificate of total benefit" pursuant to which £33,840.93 was paid by the "compensator" to the Secretary of State in respect of benefits paid to the appellant before his claim for damages was settled five years after the accident. At the oral hearing before me, the appellant appeared in person and the Secretary of State was represented by Ms Joy Talbot of the Office of the Solicitor to the Departments of Social Security and Health.

2. Part IV of the Social Security Administration Act 1992 makes provision for the recovery of benefits from compensation payments. By virtue of section 82(1)(a), only benefit payable "in respect of" a relevant accident is recoverable and therefore section 98(1)(b) provides for a right of appeal to a tribunal on the ground "that benefit paid or payable otherwise than in consequence of the accident, injury or disease in question has been brought into account". As the only issue in the present case was the period specified in the "certificate of total benefit" in respect of invalidity benefit, the appeal fell to be determined by a social security appeal tribunal rather than a medical appeal tribunal.

3. It is common ground that the relevant accident caused an injury to the claimant's right shoulder and that he still suffers some disablement in consequence of it. It is also common ground that the claimant was for a while incapable of work as a result of the relevant accident and that he was retired from his former employment on medical grounds after some attempts at returning to work on light duties. It is therefore accepted by the appellant that statutory sick pay amounting to £1,517.30, disablement benefit amounting to £4,148.96 and reduced earnings allowance amounting to £8,297.92 were all properly recovered by the Secretary of State from the "compensator". However, it is the appellant's case that, from about May 1991, his shoulder injury no longer rendered him incapable of work and so, while he accepts that some of the £19,876.25 invalidity benefit paid to him during the relevant period was recoverable, he submits that most of it was paid "otherwise than in consequence of the accident", being paid in consequence of an unrelated stomach disorder known as dumping syndrome. He therefore argues that approximately £17,000 should not have been brought into account in the "certificate of total benefit".

4. Up until May 1991, the medical certificates the appellant had been submitting in support of his claim for invalidity benefit had mentioned only his shoulder injury. On 7 May 1991 the appellant was examined by a Benefits Agency Medical Service doctor who found that he was suffering from both the shoulder injury and dumping syndrome and expressed the opinion that he was incapable of work at his former occupation but was capable of work within limits. He noted that the appellant wanted to be retrained. On 14 May 1991, the Benefits Agency asked the appellant to return his invalidity benefit order book and on 22 May 1991 the adjudication officer wrote to the disablement resettlement officer asking for advice as to the types of work the claimant could perform. On 11 June 1991 the disablement resettlement officer replied, stating:-
"I interviewed [the appellant] on Wednesday June 5th 1991 and have not taken him onto my case load for the time being as I do not consider him to be fully fit for work as yet. The problem is that the Dumping Syndrome he suffers from is not under control as yet and he can be sick several times a week. He is currently being treated by diet therapy and I have agreed that once the condition is more under control he should make another appointment to see me and I will arrange an assessment through one of the ERCs or Asset.
He has actually had a private assessment by Don Pugh who was formerly Manager of Garston Manor ERC. I have not seen a copy of the assessment report but I understand that Don Pugh also advised that [the appellant] needs to wait until his Syndrome is more under control before attempting to go back to work."
The appellant's doctor continued to issue medical certificates, but from 16 May 1991 they referred both to the shoulder injury and to the dumping syndrome. Invalidity benefit remained in payment. It does not appear that there was ever a formal decision by the adjudication officer reviewing, but not revising, the award. However, on 17 June 1991, the adjudication officer wrote a minute saying:-
"Based on the reply from DRO I am prepared to accept the claimant's incapacity at present, however can you refer back to me in 3 months time as I will contact DRO again."
On 17 October 1991, he wrote:-
"I have spoken to DRO about this claimant. He was given an assessment by a re-hab manager and the conclusion was that until his dumping syndrome was controlled that it would be difficult to suggest even light work for him at present."
On 27 September 1993, the appellant was referred for examination by another Benefits Agency Medical Service doctor who found that the appellant had nil function for driving and reduced function in his right shoulder, right arm and right hand, for climbing ladders, for working at heights and for lifting and carrying in his right hand. Asked to comment on the grading of functions and their effect on the appellant's capability for work, he wrote:-
"Not applicable at present because of unpredictable fainting bouts. Should eventually be able to do work within limits imposed by impaired R arm function."

5. In addition to the evidence directly relevant to the appellant's claim for invalidity benefit, there was before the tribunal evidence in respect of his claim for reduced earnings allowance. That claim was initially made at a time when he was back at work with his former employers, but engaged only on light duties which involved a loss of overtime and therefore reduced earnings. Each year, an adjudicating medical authority examined the appellant and gave advice to the adjudication officer dealing with the claim for reduced earnings allowance. In 1989, 1990 and 1991 the adjudicating medical authority thought that the appellant was actually capable of remunerative employment - albeit not his former employment - which is not consistent with the award of invalidity benefit. However, in each of those years, only the shoulder injury was considered. In 1990, Dr Bennett was the adjudicating medical authority and he noted that "he is already investigating alternative employment". In 1992, Dr Bennett was again the adjudicating medical authority and on this occasion he considered that the appellant was not capable of remunerative employment but he also considered that the relevant accident did not materially contribute to that incapacity. He said:-
"Dumping syndrome causes faintness and excessive bowel actions daily. This appears to be a bar to work and re-training.
...
Apparently cannot obtain re-training through DRO until his abdominal condition improves"
In 1993 a different adjudicating medical authority considered that the appellant was not incapable of work but did not explain the way in which the appellant's abdominal pain and dumping syndrome, which he considered relevant, limited his capacity for employment. It seems therefore that that adjudicating medical authority did not have in mind the practical consequences of dumping syndrome.

6. On 12 January 1993, the appellant was examined by Mr Alan Richardson FRCS who gave a detailed report and concluded:-
"Currently, he has 2 disabilities, ie the shoulder pain and the dumping symptoms and I would feel that it is the latter which is more important in relation to the decision to regard him as unfit for work assessment or retraining."
On 22 June 1994, the appellant's general practitioner wrote:-
"This patient has asked me to write a letter to clarify the situation regarding the reasons why he has been off work. You have copies of all his previous sick certificate notes. He has suffered from a shoulder sprain which meant that he was unable to do his previous work with BT but this has not necessarily excluded him from seeking work or retraining and doing light duties. Following previous gastric surgery many years ago, he developed dumping syndrome. This first came to my attention in August 1990 and the patient said that the symptoms were really troublesome from April 1991. This has been perhaps the more significant reason why he has not worked over the past few years. He is under investigation in London for this syndrome."

7. All the evidence to which I have referred above was among the evidence before the tribunal. The tribunal's findings of fact referred firstly to the arithmetic in the case and then continued:-
"A medical examination by a Benefits Agency Medical Officer found the appellant fit for work within limits in May 1991. The appellant sought to be allowed to re-train but was rejected by the Disablement Resettlement Officer because of the appellant's continuing incapacity for work.
The reason for incapacity for work was identified by the appellant's doctor as injury to shoulder and dumping syndrome, of these the former related to the accident, the latter was a new and unrelated condition.
The appellant sought to have the reference to the shoulder injury removed from the certificate as it no longer prevented him from working. The principal reason he was incapable of work was because of the dumping syndrome from which he was and continues to be suffering. Nonetheless, benefit paid has continued throughout to have been paid for the same original reason albeit latterly for an additional reason.
The injury has continued to be one of the causes for payment of benefit throughout the whole period from 6 July 1989 to 4 July 1994 (both dates included).
The monies recovered in this matter by the Compensation Recovery Unit have been correctly recovered. All the benefits are required to be included for recovery within the scheme."
The tribunal's reasons for dismissing the appellant's appeal were:-
"The appellant has not disputed the amounts nor the nature of the benefits in respect of which the Certificate of Total Benefit was issued by the Compensation Recovery Unit and the Tribunal are satisfied that these are correct in both respects.
The appellant's appeal was on the basis that as from or about May 1991 the basis on which he was entitled to benefit was no longer because of incapacity by reason of shoulder injury but incapacity by reason of dumping syndrome. It is clear that incapacity throughout has continued to be in whole or part by reason of shoulder injury. On this basis and having regard to the decision of Mr Commissioner Skinner in CCR/001/93, particularly paragraph 11 which patently this Tribunal must follow, this appeal must be disallowed."

8. Although regulation 25 of the Social Security (Adjudication) Regulations 1986 did not apply to proceedings under section 98 of the Social Security Administration Act 1992, the tribunal were bound to give reasons for their decision by virtue of section 10(1) of the Tribunals and Inquiries Act 1992. As in other cases where an appeal from a tribunal lies only on a point of law, the standard of reasons required from the tribunal was that they should be sufficient to enable the parties to know whether or not the tribunal had erred in law. Failure to give such reasons amounts to a denial of justice because the parties are deprived of the opportunity of exercising their right of appeal and therefore is itself in error of law (Alexander Machinery (Dudley) Ltd -v- Crabtree [1974] ICR 120, 122, and Baron -v- Secretary of State for Social Services - reported as an Appendix to R(M) 6/86).

9. In the present case, the question for the tribunal was whether invalidity benefit paid from about May 1991 was paid "otherwise than in consequence of the accident". It is clear that it was not necessary that the relevant accident be the sole cause of the payment of benefit (see Hassall -v- Secretary of State for Social Security [1995] 1 WLR 812 in which the Court of Appeal upheld the decisions of the Commissioner in CCR/2/93 and in CCR/1/93 to which the tribunal referred). However, it was necessary that the relevant accident be an effective cause of the payment of benefit. Invalidity benefit is not payable merely because a claimant has a reduced capacity for work. It is payable only if a claimant is incapable of any work which it would be reasonable to expect him to do. Invalidity benefit is therefore recoverable under Part IV of the Social Security Administration Act 1992 only from a claimant who is incapable of any such work in consequence of the relevant accident. The effect of Hassall is that, if a claimant is rendered permanently incapable of work by an accident and then suffers from an unrelated illness which would have rendered him incapable of work even if the accident had not occurred, the claimant is still to be regarded as incapable of work in consequence of the accident. Similarly, a claimant is to be regarded as incapable of work in consequence of an accident if neither the accident not an unrelated illness would individually have rendered him incapable of work but where their combined effect does so. However, where, in consequence of an accident, a claimant suffers disablement which is not itself incapacitating and then suffers from an unrelated illness which would, by itself, have rendered him incapable of work, it cannot be said that the relevant accident is an effective cause of the incapacity. In such a case, the claimant's incapacity is solely due to the unrelated illness.

10. Did the tribunal err in law in this case? On the face of their decision, they asked themselves the right question because they decided that incapacity had continued to be in whole or in part by reason of the shoulder injury. However, their reasons for reaching that conclusion are extremely brief and leave me in substantial doubt as to whether they approached the case properly. In particular, they regarded it as "clear" that incapacity continued to be at least partly due to the shoulder injury when the evidence appears to me to be anything but clearly to that effect. That suggests that they took an oversimple view of the case.

11. Ms Talbot stoutly defended the tribunal's decision on the basis that most of the medical evidence - and particularly the medical certificates issued by the appellant's own doctor - referred to both the shoulder injury and the dumping syndrome. However, apart from the 1992 report of Dr Bennett and the medical certificates, none of the medical evidence makes it clear whether the shoulder injury was an effective cause of incapacity for work rather than merely being an effective cause of disablement. Dr Bennett expressly dealt with the question whether the shoulder injury was an effective cause of incapacity and he determined that issue very clearly in favour of the appellant. The tribunal did not mention his opinion at all.
12. They did refer to the doctor's certificates. I have no doubt that, where a person has claimed and been paid invalidity benefit on the basis of certificates referring only to one condition, it will seldom be appropriate to go behind those certificates on an appeal under section 98 of the Social Security Administration Act 1992 so as to find that the invalidity benefit was not paid in respect of that condition. However, where more than one condition is mentioned, the effect is somewhat different. An adjudication officer determining entitlement to invalidity benefit is not bound by a doctor's certificate and, where more than one condition has been mentioned, it cannot be assumed that the adjudication officer has accepted that the claimant is incapable of work by reason of all those conditions and therefore that benefit has been awarded in consequence of all those conditions. Indeed, it cannot be assumed that the adjudication officer has ever addressed his mind to the question precisely which conditions effectively cause the claimant's capacity for work, because in the vast majority of cases the cause of incapacity is irrelevant to a decision to award invalidity benefit. The fact that a doctor has written more than one diagnosis on the medical certificates may be some evidence that he is of the opinion that all those conditions effectively caused the claimant's incapacity for work but it is certainly capable of being outweighed by closely reasoned evidence to the contrary. A doctor knows that his certificates are not binding on an adjudication officer and, if he is satisfied that a claimant ought not to work, he is quite entitled to list all those conditions that might be thought by the adjudication officer to be relevant to determining a claimant's capacity for work, even though he is personally satisfied that only one of them is the effective cause. In any case, doctors not being lawyers, it is perhaps unwise to rely too heavily on their appreciating the fine distinction between factors contributing to disablement and factors that are truly effective causes of incapacity for work, unless they are asked specific questions in the way that adjudicating medical authorities are. In the present case, the appellant's general practitioner substantially qualified the certification in his letter of 22 June 1994 although the terms of that letter are still equivocal.

13. Ultimately, the question that had to be answered in the present case was whether, had the appellant not suffered the relevant accident, he would have been incapable of work by reason of the dumping syndrome alone, or whether his incapacity only arose because the effects of the dumping syndrome were combined with the effects of the shoulder injury. Except for Dr Bennett's 1992 report, all the medical evidence is equivocal on that issue. The decision reached by the tribunal was one that was open to them on the evidence but they were not entitled to reach it on the basis that the evidence all pointed in one direction and without recording their own findings as to the respective effects of the shoulder injury and the dumping syndrome and making it clear that they were really deciding that the dumping syndrome alone would not have rendered the appellant incapable of work.

14. It is possible that the tribunal were misled by paragraph 21 of the Secretary of State's submission to the tribunal. It read:-
"21. It is not disputed that the claimant was considered to be fit for work in May 1991 by the department's RMO. However, it is respectfully emphasised that the RMO considered the claimant to be fit for work within the limits imposed by the effects of the shoulder injury. The claimant was not considered fit or capable of his usual employment since he was medically retired in December 1990 by his employer."
It appears there to be suggested that, because the appellant remained incapable of following his former employment after May 1991, invalidity benefit continued to be paid in consequence of the relevant accident. However, it seems fairly clear that, but for the dumping syndrome, the benefit to which the appellant would have been entitled was unemployment benefit. Had unemployment benefit been paid to him, then, as he had lost his job due to the relevant accident, that would have been recoverable, but, there is no provision allowing the Secretary of State to recover the amount of unemployment benefit that would have been paid to a claimant had he or she not become entitled instead to invalidity benefit due to a supervening cause.
15. In any event, I am satisfied that the tribunal's decision is erroneous in point of law for want of adequate compliance with the duty to give reasons. I therefore set it aside. A very substantial amount of money is at stake in this case and I think it right that both parties should have the opportunity of adducing further evidence relevant to what I have identified as the crucial issue. In the light of such evidence the Secretary of State will be able to consider whether he still wishes to oppose the appeal. As the case cannot be determined immediately, I do not consider it expedient for me to give a final decision myself and I therefore refer the case to a differently constituted tribunal for determination.
 
M. Rowland
Commissioner 
29 March 1996