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Accident Compensation Cases

Thomas v Accident Compensation Corporation (DC, 10/09/07)

Judgment Text

DECISION OF JUDGE M J BEATTIE 
Judge M J Beattie
[1]
By Notice of Appeal dated 6 March 2006 the appellant lodged an appeal from a Review Decision dated 22 February 2006, identified as Review Number 41840. 
[2]
The two issues identified by the Reviewer were — 
(i)
whether the appellant was entitled to a “deemed” decision in respect of the decision dated 25 July 2005, on the basis that there had been a failure to set the matter down within the statutory time period; and 
(ii)
whether the respondent's decision of 25 July 2005, dealing with Home Help was correct. 
[3]
The issues in this appeal, being the same issues as were the subject of the Review, require a chronology, which I find to be as follows: 
On 25 July 2005, in response to the appellant's application, the respondent issued a decision determining the level of Home Help entitlement it would grant as being 1 hour and 45 minutes per week. 
On 1 September 2005, the appellant lodged an application to review that decision. 
The hearing of that appeal was convened for 31 October 2005. 
By letter dated 31 October 2005, the respondent advised the appellant that it had reconsidered its decision of 25 July 2005 and that it was arranging a further assessment to determine the level of the appellant's entitlement to Home Help. The letter therefore advised that its decision of 25 July was thereby revoked. 
The Review Hearing proceeded on 31 October 2005, the issue being whether a Reviewer still had jurisdiction to consider the respondent's decision of 25 July 2005 in the light of it being revoked. 
By decision dated 12 November 2005, the Reviewer determined that whilst the decision under review was purportedly revoked, it had not been replaced by a fresh decision, and she accordingly considered that there was jurisdiction to consider the merits of the respondent's decision of 25 July 2005. 
A Review Hearing to consider that matter and also the question of a “deemed” decision was convened on 25 January 2006 at which submissions were received from the appellant and from counsel representing the respondent. 
By decision dated 22 February 2006, the Reviewer determined that the appellant was not entitled to a “deemed” decision as the hearing of the review had been set within three months of the date of receipt of the application. Secondly, the Reviewer quashed the respondent's decision of 25 July 2005, and directed that the respondent conduct a new assessment for the appellant's social rehabilitation needs. 
[4]
Although not relevant to the above chronology, it is the case that the respondent did undertake a further assessment of the appellant's Home Help requirements and issued a fresh decision on 2 August 2006 advising that he was entitled to a maximum of seven hours Home Help per week. 
[5]
In terms of its appellate jurisdiction under the Act, this Court is bound only to consider the Review Decision appealed from, which in turn must determine the primary decision made by the respondent which was the subject of the review. 
[6]
In the present case, the primary decision was the respondent's decision of 25 July 2005, determining a particular level of weekly Home Help. That was certainly a reviewable decision and the appellant was quite within his rights to seek to review it. Equally I find that the Reviewer, in a decision of 12 November 2005, was correct to determine that there had not been an effective revocation of that decision by the subsequent letter of 31 October 2005, as there was no fresh decision substituted for the decision revoked. Accordingly, the Reviewer was correct to confirm that she had jurisdiction to consider the substance of the respondent's decision of 25 July 2005. 
[7]
When that substantive review came on for hearing the appellant had added a fresh claim, he contending that he was entitled to a deemed decision arising from that decision of 25 July 2005 by virtue of the Review Hearing not having taken place within the statutory time-frame provided as set out in Section 146 of the Act. Section 146 states: 
The Reviewer is deemed to have made a decision on the Review in favour of the applicant if— 
(a)
the date for the hearing has not been set within three months after the Review Application is received by the Corporation; and 
(b)
the applicant did not cause or contribute to the delay. ”
[8]
In this case, I take it that the appellant is contending that he lodged his Application for Review on 1 September 2005 and the date of hearing did not take place until 25 January 2006. 
[9]
This very point was of course considered by the Reviewer who held that the date of hearing had been set and advised within the three month period although the eventual date of hearing actually took place outside that three month period. 
[10]
I am in complete agreement with the Reviewer. The fact of the matter is that the hearing was set on a date prior to 1 December 2005 and indeed a hearing took place on 31 October 2005. It was a consequence of that hearing and the determination made by the Reviewer that a new date needed to be set once issues of jurisdiction had been resolved, as they were in the decision which followed that first hearing. 
[11]
The hearing which took place on 25 January 2006, was a continuation of the hearing which had been set within the three month period and in those circumstances there was no breach of the three month period provided for in Section 146. 
[12]
The second point raised by the appellant relates of course to the substantive matter contained in the respondent's primary decision of 25 July. It is the case that that substantive decision was revoked and has since been replaced by a fresh decision of 2 August 2006. In those circumstances, the decision in question is entirely moot and even if it were to be “alive” the extent to which the Court could address the issue would be to find that the level of Home Help was less than the appellant's entitlement and the Court would simply have directed a fresh assessment to be carried out. That procedure has in fact been carried out and subsequent events have entirely overtaken the point that may have been alive in this appeal back in March 2006 when it was lodged by the appellant. 
[13]
Accordingly, therefore, neither point raised in this appeal can be sustained and this appeal is dismissed. 

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