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You are here: BAILII >> Databases >> Northern Ireland - Social Security and Child Support Commissioners' Decisions >> [1999] NISSCSC C11/99-00(CRS) (19 October 2001) URL: http://www.bailii.org/nie/cases/NISSCSC/1999/C11_99-00(CRS).html Cite as: [1999] NISSCSC C11/99-(CRS), [1999] NISSCSC C11/99-00(CRS) |
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[1999] NISSCSC C11/99-00(CRS) (19 October 2001)
Decision No: C11/99-00(CRS)
"Having seen and heard [the injured person] today and considered all the available evidence and submission before us, we are of the opinion that Income Support paid to [the injured person] from 20 November 1995 to 1 September 1996 was paid otherwise than in respect of the accident in question and is therefore not recoverable from him.
The benefit paid from this time was paid, not in respect of any incapacity for work, as [the claimant] was fit for work at that stage or in respect of any continuing effects of the accident (Mr L... confirms he was an employable individual at that time). It was paid by virtue of the fact that he satisfied the various other conditions for receipt of Income Support.
Commissioner's decision R1/93(CRS) indicates that benefit may still be recoverable in these circumstances, but that it is on appeal for the . Tribunal to consider whether it could fairly be said that benefit was paid in consequence of the injury.
In this case, subsequent changes in the legislation require benefit to be paid in respect rather than in 'consequence' of the accident/injury (as was then the case before the Commissioner).
The implications of this change was in our opinion for reaching. An accident may have consequences lasting for many years including the loss of a job but the requirement that the benefit be paid in 'respect' of the accident/injury is a much more specific one, we feel and related more directly to the actual effect of the accident/injury. We cannot, on any of the evidence before us conclude that the Income Support paid from 20 November 1995 was paid in respect of the accident in question."
" The difference between the two expressions "in respect of" and "in consequence of" in sections 82(1)(a) and 98(1)(b) respectively has no legal significance but appears to have merely been a matter of drafting. "
Commissioner Goodman was there dealing with a situation where these two expressions were used in sections of the formerly applicable 1992 legislation. The Commissioner stated at paragraph 10 referring to that legislation:-
"It should be noted that words in section 98(1)(b) (dealing with appeals) are "otherwise than in consequence of the accident, injury or disease" (my underlining). The expression "in consequence of" is not the same as the expression in section 82(1)(a) of the 1992 Act permitting recoupment by the Secretary of State which speaks of "relevant benefits in respect of that accident, injury or disease." "
"The words 'in respect of' are difficult of definition, but they have the widest possible meaning of any expression intended to convey some connection or relation between the two subject matters to which the order refers."
Boreham J describes these words as providing helpful guidance at any rate as to the "ordinary meaning of the words "in respect of"".
"I consider, however, that he could be reassured that the ankle joint is normal and that the fracture has united solidly, even though there is a certain degree of stiffness in both the ankle and sub-taloid joint of the foot.
There is nothing on clinical examination to suggest that there is any fracture of the heel bone.
Whilst he may continue to have some symptoms in the ankle in the future, I do not [sic] any deterioration and he is an employable individual, this applies both to the short and the long term."
" In my view the acceptance by the Tribunal that Mr R was not working at his former job because of his dermatitis rendered it impossible for them also to hold that the disputed income support was paid otherwise than in consequence of the disease. The legislation does not require the disease in question to be the sole cause of the payment of benefit. The non availability of work may also be a factor; but that would not necessarily mean that the benefit received was paid otherwise than in consequence of the victim's disease ."
"11. The fact that Mr R had not fully recovered from his dermatitis, in the sense that he was only available for suitable alternative employment, could be said to strengthen the argument in favour of the proposition that the disputed income support was paid in consequence of the disease. In my view, however, that was in no sense a conclusive factor. As I read the legislation a victim who had made a complete recovery, for example from an injury such as a sprain or a fracture, might also find that benefit which he had received by way of income support or unemployment benefit after he had signed on for work was included in a certificate of total benefit. It would be for the Department in the first instance and, on appeal, the Social Security Appeal Tribunal, to consider whether in the circumstances of the case it could fairly be said that the benefit was paid or payable in consequence of the injury. The conclusion reached would depend upon the individual facts of the case; but the view I take is that, where it appeared that the victim lost his job because he was unfit through his injury, any income support or unemployment benefit which he received during the relevant period would fall to be included in the certificate of total benefit, unless there were evidence to suggest that, regardless of the injury, he would have lost his job in any event; for example. though redundancy or the bankruptcy of his former employers. No such matter arose for consideration in the present case, in which it has been accepted throughout that it was because of his dermatitis that Mr R was not working at this former job, and my comments on the point are merely included by way of possible guidance in future cases."
"13. By way of guidance in future cases I should perhaps point out that if, on the other hand, [the injured person] had come off sickness benefit at some earlier date within the relevant period, any income support which he subsequently received would not have been paid in consequence of the accident or injury in question and would not therefore have qualified for inclusion in the certificate of total benefit. Similarly, if [the injured person] had recovered fully from the injuries sustained in the accident and had developed some other complaint which rendered him unfit for work, income support received by him in such circumstances would not have been paid in consequence of the accident or injury in question."
(Signed):M F BROWN
COMMISSIONER
19 OCTOBER 2001