A Social Security commissioner recently decided two cases of great importance to personal injury practitioners.

The litigation concerned the recovery from damages for such injury of the amount of benefit paid to the victim/plaintiff in consequence of an accident.Recovery of benefit was introduced by the Social Security Act 1989 with effect from September 1990, catching accidents occurring after 1989 but settled after that date in 1991.

By contrast with the previous combination of statute, Law Re form (Personal Injuries) Act 1948 and later case law, the defendant must now find out how much benefit has been paid and refund it to the Department of Social Security when the case is finished.It does not matter whether the case is concluded by a settlement or by a judgment.

The defendant is no longer entitled to a mixture of set off and credit for either half of certain specified benefits paid for five years from the accident - s.2 of the 1948 Act - or the whole of certain benefits not so specified.Curiously, the pre-1989 law threw no light on the question of the criteria for establishing that benefit had been paid in consequence of the accident.

The new law is now contained in ss.81 to 104 of the consolidating measure, which is the Social Security (Administration) Act 1992.

The benefit that is recoverable is that which has been paid 'in consequence of an accident, injury or disease...' (s.82(1)).By s.95 onwards provision is made for the amount of benefit claimed as recoverable to be certified by the secretary of state and for this amount to be paid to him by the compensator within 14 days of a payment of the balance of the damages to the victim.

Provision is made by s.98(1) for an appeal against the certificate partly on the grounds, that the benefit certified is not attributable to the accident, injury or disease in question.

Such an appeal lies with a social security appeal tribunal - with a further right of appeal, on law only and with leave, to a social security commissioner.This is now the usual pattern of appellate rights in social security decision making.

An appeal can only be lodged after the certificate has been honoured by repayment to the secretary of state.

He or she must, in turn, repay any money found not to be due.

That said, the Compensation Recovery Unit will always consider arguments put to it about attributability of the benefit paid to the victim before a final certificate is issued.In a decision to be reported as C(CR)/1/92 - TCRU is a new series of reported commissioners' cases, and stands for 'compensation recovery' - the question arose as to repayment when the victim was already receiving benefit at the date of the accident.The victim was involved in a road traffic accident in August 1990.

He broke his ankle and remained in hospital for a few days.

Before the accident he was unemployed - but available for work and signing on regularly as unemployed - and claiming income support.It is a cardinal principle of means-tested benefits such as income support that the claimant is required to be available for, and to take active steps to seek, employment.

However, this requirement does not apply where the claimant is unwell, looking after children - or, in some cases, other relatives - or is in some other special category.After the accident the victim continued to claim and receive income support but with one crucial difference: from the date of discharge from hospital he declared that he was unfit for work because of his broken ankle.

He continued to receive benefit until February 1991 on each occasion of payment declaring that he was sick thus, rightly, excusing himself from the obligation to seek work.Before the commissioner he argued that the benefit he had received had not been paid in consequence of the accident.

Had he not been injured he would have continued to receive benefit.

For how long he would have been so paid was speculative, but he argued that during the relatively short period of time for which he declared himself to be sick the probability was that he would not have found work an d would, therefore, have continued to receive benefit in any event.

He submitted that for recovery to take place the benefit paid had to be paid as a direct consequence of the accident.Mr Commissioner Skinner rejected this argument.

He held that the basis of the payment of income support had changed after the accident.

In essence it was the same benefit that was paid later as well as before the accident, but the vital difference was that he was no longer required to be available for, and actively seeking, work.

His condition meant that he need not fulfil this condition.

That was a consequence of the accident and the benefit he received was therefore paid in consequence of the accident.This reasoning does not mean that all that is necessary is to look at what was paid after the accident and hold that it must have been so paid in consequence of the accident.

If the victim was previously claiming benefit because of sickness, it is arguable that once the effect of the accident has ceased to operate - a question of medical evidence - any benefit later paid is not received in consequence of the accident.The benefit paid during the operative period of the injury is, it is submitted, paid in consequence of the accident.

The cause for payment is two concurrent external factors, and the Act does not say that the payment of benefit must be solely because of the accident.

The commissioner expressly made this point part of his decision.Another instance is where the benefit paid is attributable to pre-accident unemployment, and the injury then operates to make the victim sufficiently unwell to be exempted from the requirement of being available for work.

After a while the effect of the accident wears off, but no work is available.

Later benefit would not have been paid in consequence of the accident provided, of course, that the victim no longer claims by reason of sickness but reverts to an unemployment- based claim.A more difficult case is where the victim is claiming benefit based on illness and is the victim of medical negligence as a result of treatment for that condition.

It may be necessary to obtain expert evidence on when the effect of the medical negligence has ceased to operate where the underlying condition continues to be the basis of any claim for benefit.Two other arguments put by the victim were also rejected.

First, it was said that benefit was only recoverable from such element of the award of damages as represented loss of earnings whether past or future.

This was held not to be sustainable on the wording of s.81(1) of the 1992 Act.

For various reasons the compensation received only covered pain and suffering and did not contain any element for loss of income.Secondly, the victim argued that the only amount recoverable, if any sum was due at all, was the benefit paid to the victim himself and not any additional sums paid to take account of his family responsibilities eg an addition for dependants.

The argument was that s.82(1)(a) referred to benefit paid to or for the victim..., making no mention of additional allowances.

The commissioner did not agree.

He held that this was not the position and that the words were wide enough to cover all sums paid to the victim whether for himself or for dependants.A warning to practitioners is implicit in the decision.

It is vital that the implications of benefit recovery are considered immediately a solicitor is instructed to act for the victim of an accident.

This is so even if the claim is eventually settled for less than the current 'small claims' limit of £2500 in which c ase benefit recovery does not apply with full force but, instead, a modified version of the 1948 Act regime comes into operation.In the second case - to be reported as C(CR)2/93 - the facts were very similar, and concerned a victim of a motor accident who was unemployed at the date of the accident and whose claim for benefit was based on his injuries.

The commissioner followed his first decision and held that the benefit was recoverable.

He also commented obiter on the question of who had the burden of proof.

Was it for the victim to show that the benefit was not paid in consequence of the accident, or for the secretary of state to show that it was? As no point arose on this issue, the commissioner reached no final view but did suggest that the burden would fall on the secretary of state.

In most cases the facts will be plain and it will not matter who has the burden of proof.These decisions are now on their way to the Court of Appeal.

The reasoning of the commissioner seems to be impeccable, although the court will have the last word.

For the moment at any rate, all personal injury practitioners ought to be aware of the current law.