AW v Secretary of State for Work and Pensions [08.06.11]
Appeal against a CRU certificate to be reheard where the tribunal failed properly to consider the impact of earlier injuries. This appeal to the Upper Tribunal concerned the vexed question of the "effective cause" doctrine which governs CRU appeals:
- The Claimant was a former British army serviceman from 1984 until 27 March 2000 when he was discharged on medical grounds with an apparent 40 percent disability. He then took up work as a driver/chauffeur.
- He was involved in a serious RTA on a motorbike on 18 June 2000, causing a head injury, injuries to his limbs and significant burns.
- Unfortunately, during his extensive hospital stay, he developed an MRSA infection due to hospital negligence, eventually requiring his left leg to be amputated above the knee on 1 December 2000. He was awarded Disability Living Allowance from 4 April 2001.
- In his claim against the hospital, he obtained a significant damages award, reduced by the amount of the DLA care component.
- The Claimant appealed against the CRU certificate, but the appeal failed as the Tribunal found that benefits were paid as a result of the amputation.
- The Claimant appealed to the Upper Tribunal, alleging that at least some of the benefits were paid for reasons other than the hospital’s negligence, such as the RTA or his army injuries.
The Upper Tribunal allowed the appeal and resubmitted the case for rehearing by a newly constituted lower tribunal. It criticised the first instance Tribunal for failing to insist on seeing the Claimant’s army medical records. Accordingly, it had failed to fully consider the effect of any army injuries and any head/brain injury on the award of DLA. This amounted to an error of law. The Upper Tribunal observed that had the Claimant been awarded DLA after the RTA, but before the MRSA and amputation, benefits would not be properly recoverable as a result of the hospital’s negligence.
This case is a good reminder of the operation of the "effective cause" doctrine and the need to thoroughly investigate the effect of a claimant’s prior medical history on the question of entitlement to benefits. Interestingly, the Upper Tribunal envisaged that if the amputation had merely increased (as opposed to causing in the first place) the entitlement to DLA, the amount of the previous entitlement should be deducted from benefits being recovered from the compensator. It is crucial to understand how benefits are awarded when undertaking CRU appeals in order to maximise any recovery.