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[2004] UKSSCSC CCR_4678_2003 (28 May 2004)

CCR/4678/2003

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. I allow the Secretary of State's appeal. I set aside the decision of the Birmingham appeal tribunal dated 6 March 2003 and I substitute my own decision, which is to confirm the amounts, rates and periods specified in the certificate of recoverable benefits.

REASONS

2. It is unnecessary to go into the details of this case because it is conceded by the claimant in a helpful submission by her representative that this appeal, which is brought with my leave, must be allowed. The simple fact is that the tribunal, misled by the standard form of decision notice used by the Appeals Service despite the criticism that has been levelled at it from time to time, completely failed to answer the statutory questions posed by the appeal before them.
3. The claimant had appealed against a certificate of recoverable benefits. The grounds upon which a person may challenge a certificate of recoverable benefits are set out in section 11(1) of the Social Security (Recovery of Benefits) Act 1997. There was no dispute that the compensation payment was one within the scope of the Act and therefore the possible grounds of appeal were under paragraphs (a), (b) and (c), which all seem to me to amount to different ways of describing challenges to the inclusion within the certificate of benefits paid otherwise than in consequence of the relevant accident, injury or disease. Section 12(4) of the 1997 Act provides:

"On an appeal under section 11, the tribunal may either –

(a) confirm the amounts, rates and periods specified in the certificate of recoverable benefits, or

(b) specify any variations which are made on the issue of a fresh certificate under subsection (5) or

(c) declare that the certificate of recoverable benefits is to be revoked."

4. However, the decision notice used by appeal tribunals merely invites the tribunal to specify whether, as a result of an "occurrence", the victim suffered an injury, sickness or disease and, if so, to specify what the injury, sickness or disease was and for what period it was suffered. Quite where the draftsman of that notice got the idea that it was necessary for there to be an "occurrence" at all I do not know, but it is patently obvious that the questions posed in the notice are not those posed by the legislation. The tribunal appear not to have read the legislation either. There is no reference to any statutory provision in the three and a bit pages of the statement of reasons. On the first page, the chairman recorded:

"The tribunal had by law had [sic] to consider whether as a result of the accident that [the claimant] suffered, she suffered injury, sickness or disease, these being the requirements of the decision notice which contents have by statutory provisions to be approved by the current President of the Appeals Service, being His Hon Judge Michael Harris."

It is true that a decision notice "shall be in such written form as shall have been approved by the President" (see regulation 53(2) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999) but the form of a decision notice does not justify a tribunal failing to give a decision in terms required by primary legislation.

5. The tribunal did not make the findings necessary to determine the statutory questions that they were required to answer and, in particular, whether any of the benefits listed in the certificate of recoverable benefits had not been paid in respect of the relevant accident. Indeed, such findings as they did make are inconsistent, as the Secretary of State submits. The tribunal purported to "allow" the appeal but stated in the decision notice that the claimant had suffered from impaired lower limb function and post-traumatic stress disability from 18 July 1996, as a result of an "occurrence" (the relevant accident being on that date) and that that was still ongoing. They did not consider whether the payment of benefits was attributable to the accident and so their decision to "allow" the appeal was unexplained and certainly not in terms that could be implemented. Despite this being drawn to the attention of the chairman on the Secretary of State's application for leave to appeal, he refused leave to appeal.
6. In fact, the claimant's grounds for appeal to the tribunal amounted to a complaint, which seems to me to have some merit in it, about the amount deducted from her compensation by her employers' insurance company who have since gone into liquidation. It would appear that her solicitors did not object to the deduction. Whether or not she still has a remedy, she needs to look elsewhere for it because that issue did not fall within the jurisdiction of the tribunal. She does not argue that the benefits were not paid in respect of the relevant accident. Consequently, the tribunal should have dismissed her appeal and she therefore concedes that the Secretary of State's appeal should be allowed in its entirety.

(Signed) MARK ROWLAND

Commissioner

28 May 2004