The Bano Companion
The most significant book relating to Armed Forces Compensation Scheme (AFCS) and War Pension Scheme (WPS) decisions is Bano (2021) War Pensions and Armed Forces Compensation: Law and Practice (2nd edition).
The book is the go-to guide for all those interested in the case law underlying AFCS and WPS decisions. Copies of the 2nd edition sometimes come up second-hand for £75 on Abebooks or Amazon
This page is here to help folks find cases referred to in the book:
- In plain text, judgment yet to be linked. Some cases are not online and will be uploaded in due course.
- Linked judgments are in bold . Whenever possible, the linked judgment will be on a gov.uk website. However, some cases have LexJustis or Casemine written after them, which may limit the text available and will be replaced with better links in due course. And quite a few cases are unpublished and very tough to find.
- A small collection of judgments below, and others, are available in this Google Drive folder
- Cases in purple have full judgment copied in at bottom of page (colouring to be removed on final version)
Table of Commissioners' and Upper Tribunal Decisions
Abdale and others v Secretary of State for Defence (WP) [2014] UKUT 0477 (AAC), [2015] AACR 20 gov.uk, judgment not copied to this page due to extreme length
AL v Secretary of State for Defence [2014] UKUT 0524 (AAC) Bailii, judgment
AL v Secretary of State for Defence [2016] UKUT 141 (AAC) gov.uk, judgment
AM v Secretary of State for Defence (WP) [2013] UKUT 097 (AAC) CAF/1279/2011 Bailii, judgment
AM v Secretary of State for Work and Pensions (ESA) [2013] UKUT 0563 (AAC) Bailii, judgment
AS v Secretary of State for Work and Pensions (ESA) [2011] UKUT 159 (AAC) Bailii, judgment
AW v Secretary of State for Defence [2014] UKUT 343 (AAC) CAF/329/2013 Bailii, judgment
C1/09-10(AF) (unreported) (NI) - also called KB-v-Secretary of State ((AF) [2010] NICom 103
CAF/656/2006 Bailii, judgment CAF/1759/2007(unreported)
CAF/2150/2007 (2008) 3 October (CA) Bailii, judgment
CAF 2151/2007 (linked to previous case)
CAF/2517/2010 (unreported)
CAF/1268/2011 (unreported)
CAF/3198/2012 (unreported)
CAF/962/2014 (unreported)
CAF/2260/2014 (unreported)
CAF/5182/2014 (unreported)
CAF/1653/2015 (unreported)
CAF/3934/2007, R(AF)4/09 is probably this case: [2009] AUKUT 51 (AAC) - war pension, ALSO, "External summary: An allowance for lowered standard of occupation (ALSO) can be reduced by any amount of service attributable pension (SAP) payable under Article 55 of the 1983 Service Pensions Order. This decision has now been reported as R(AF)4/09."
CDLA/393/2006 (unreported)
CDLA/884/2008 Rightsnet, judgment
CDLA/1000/2001 Bailii, judgment
CIS/2292/2000 Bailii, judgment
CIS/5321/1998
CSAF/493/2010 (unreported)
CSAF/834/13 (unreported)
CSDLA/288/2005 (unreported)
C1/06-07(AF) Bailii, judgment
CO v London Borough of Havering [2015] UKUT 28 (AAC) Bailii, judgment
CS v Secretary of State for Defence (WP) [2011] UKUT 514 (AAC) Bailii, judgment
CS v Secretary of State for Work and Pensions (ESA) [2013] UKUT 0508 (AAC)
CT v Secretary of State for Defence [2009] UKUT 167 (AAC) - casemine
DA v Secretary of State for Defence (AFCS) [2017] UKUT 0189 (AAC) Bailii, judgment
DAT v Secretary of State for Defence (WP) [2013] UKUT 533 (AAC) Bailii, judgment
DP v Secretary of State for Defence (WP) [2017] UKUT 434 (AAC) Bailii, judgment
DS v Secretary of State for Defence (WP) [2016] UKUT 51 (AAC) Bailii, judgment
DT v Secretary of State for Work and Pensions (DLA) [2015] UKUT 390 (AAC) Bailii, judgment
EP v Secretary of State for Defence (WP) [2016] UKUT 0329 (AAC) Bailii, judgment
EP v Secretary of State for Defence (AFCS) [2017] UKUT 129 (AAC), [2017] AACR 33 gov.uk, judgment
EW v Secretary of State for Defence (AFCS) [2011] UKUT 186 (AAC), [2012] AACR 3 Bailii, judgment
FI v Secretary of State for Work and Pensions (CSM) [2020] UKUT 173 (AAC) Bailii, judgment
FS v Secretary of State for Defence (WP) [2017] UKUT 0194 (AAC) Bailii, judgment
FY v Secretary of State for Work and Pensions [2018] UKUT 146 (AAC) Bailii, judgment
GT v Secretary of State for Defence [2016] UKUT 0309 (AAC) gov.uk, judgment
HD v Secretary of State for Defence (WP) [2017] UKUT 376 (AAC), [2017] 4 WLR 182 gov.uk, judgment
JC v Secretary of State for Work and Pensions (PIP) (2018) UKUT 110 (AAC)
JD v Secretary of State for Defence (WP) [2014] UKUT 379 (AAC)
JG v Secretary of State for Defence (AFCS) [2014] UKUT 0194 (AAC)
JM v Secretary of State for Defence (AFCS) [2015] UKUT 332 (AAC), [2016] AACR 3
JM v Secretary of State for Defence [2014] UKUT 358 (AAC), [2015] AACR 7, CAF/529/2014
JN v Secretary of State for Defence (AFCS) [2012] UKUT 479 (AAC)
JS v South London and Maudsley NHS Foundation Trust [2019] UKUT 172 (AAC), [2020] AACR 1
KF v Secretary of State for Defence (AFCS) [2019] UKUT 154 (AAC)
KO v Secretary of State for Work and Pensions (ESA) [2013] UKUT 544 (AAC)
LC v Secretary of State for Work and Pensions (DLA) [2015] UKUT 100 (AAC)
LJT v Secretary of State for Work and Pensions [2019] UKUT 21 (AAC)
LO v Secretary of State for Work and Pensions (ESA) [2016] AACR 31, [2016] UKUT 10 (AAC) Bailii, judgment
LS v London Borough of Lambeth (HB) [2010] UKUT 461 (AAC) [2010] UKUT 461 (AAC)
MC v Secretary of State for Defence [2009] UKUT 173 (AAC), [2010] AACR Bailii, judgment
MF v Secretary of State for Defence (WP) [2013] UKUT 0491 (AAC) Bailii, judgment
MG v Secretary of State for Defence (AFCS) [2015] UKUT 0372 (AAC) (incorrect title but correct case number is KA v SoS Defence)
MG v Secretary of State for Defence (WP) [2015] UKUT 704 (AAC)
MHA v Secretary of State for Work and Pensions [2009] UKUT 211 (AAC)
ML v Secretary of State for Defence (WP) [2011] UKUT 511 (AAC) CAF/474/2010
MG v Secretary of State for Defence (WP) [2015] UKUT 704 (AAC)
NH v Secretary of State for Defence (WP and AFCS) [2015] UKUT 35 (AAC) - Vlex has judgment, not found in public domain
NH v Secretary of State for Defence (No 2) (AFCS) [2018] UKUT 217 (AAC)
NJ v Secretary of State for Defence (AFCS) [2018] UKUT 211 (AAC)
PM v Secretary of State for Defence (AFCS) [2015] UKUT 0647 (AAC), CAF 517 2015
PR v Secretary of State for Defence [2013] UKUT 0397 (AAC)
R1/04(SF)
R(AF) 1/07
R(AF) 2/07, CAF/2803/2005, [2006] UKSSCSC CAF_2803_2005
R(AF) 3/07 - Vlex has judgment, not found in public domain
R(AF) 4/07 CAF 2858/2006
"Disability Rights UK summary - Allowance for lowered standard of occupation (ALSO) - consideration of London weighting earnings - This appeal is about the allowance for lowered standard of occupation (ALSO) under Article 15 of the Naval, Military and Air Forces Etc (Disablement and Death) Service Pensions Order 2006.
Article 15(1) provides that where a member of the armed forces is in receipt of retired pay or a pension in respect of disablement the degree of which is less than 100 per cent; and the disablement is such as to render him incapable, and likely to remain permanently incapable, of following his regular occupation and incapable of following any other occupation with equivalent gross income which is suitable in his case taking into account his education, training and experience he shall be awarded an allowance for lowered standard of occupation at the appropriate rate.
The claimant was subsequently employed by the British Legion and the calculation of his ALSO involved comparison of his earnings from this employment with that of his captain's pay. The tribunal was correct in considering his London weighting as part of his Legion earnings but erred in placing too much emphasis on whether this was taxable. It also failed to carry out a "like for like" comparison of the two occupations, including whether a similar allowance would have been payable to an officer of the claimant's rank stationed in central London on a long-term basis."
R(AF) 5/07 CAF 857/2006 - casemine
"Disability Rights UK summary - Misdiagnosis, The claimant was diagnosed as having "simple schizophrenia", a term which now refers to a form of depression rather than actual schizophrenia. The claimant claimed he was refused a pension based on misdiagnosis. The commissioner states that any official error regarding diagnosis should be decided on the basis of knowledge at the time of the decision."
R(AF) 1/08 - very difficult to find!
R(AF) 2/08
R(AF) 3/08 CAF 1071/2006 - "Disability Rights UK summary: Application for backdating - The tribunal was found to have erred in its decision but the commissioner substituted his own decision to the same effect, that the awards for disablement pension were reviewed but not revised. This decision discusses the rules for reviewing awards in some detail."
R(AF) 1/09
R(AF) 2/09
RAF) 4/09 CAF/3934/2007 [2009] UKUT 51 (AAC)
RDLA) 3/01
RDLA) 8/06
RI) 3/75
R(1) 81/51
RI) 42/59
RIB) 2/04
R(IB) 2/05
RIS) 11/92
R(SB) 11/86
R(SB) 19/83
RA v Secretary of State for Defence (WP) [2015] UKUT 201 (AAC)
RS v Secretary of State for Defence (AFCS) [2016] UKUT 0474 (AAC)
SA v Secretary of State for Defence (AFCS) [2017| UKUT 374 (AAC)
Saker v Secretary of State for Social Services R(I) 2/88
Salisbury Independent Living v Wirral MBC (HB) [2011] UKUT 44 (AAC)
Secretary of State for Defence v PA (AFCS) [2016] UKUT 500 (AAC), 2017] AACR 18
Secretary of State for Defence v CM (AFCS) [2014] UKUT 0018
Secretary of State for Defence v CM (WP) [2017] UKUT 8 (AAC), [2017] AACR 27
Secretary of State for Defence v FA (AFCS) [2015] NICom 17
Secretary of State for Defence v KR (WP) [2017] UKUT 0144 (AAC)
Secretary of State for Defence v LA (AFCS) [2011] UKUT 391 (AAC)
Secretary of State for Defence v MJ (AFCS) [2014] UKUT 0094 (AAC)
Secretary of State for Defence v NM (WP) [2017] UKUT 0223 (AAC)
Secretary of State for Defence v PQ (WP) [2014] UKUT 0399 (AAC)
Secretary of State for Defence v PY (AFCS) [2012] UKUT 116 (AAC), [2012] AACR 44
Secretary of State for Defence v RC (WP) [2012] UKUT 229 (AAC), [2013] AACR 4
Secretary of State for Defence v RC (WP) [2009] UKUT 297 (AAC) CAF/3350/2008
Secretary of State for Defence v TG (AFCS) [2019] UKUT 24 (AAC)
Secretary of State for Work and Pensions v SS (DLA) [2010] UKUT 384 (AAC), [2011] AACR 24
SM v Secretary of State for Defence (AFCS) [2017] UKUT 286 (AAC), [2018] AACR 4
SN v Secretary of State for Defence (AFCS) [2018] UKUT 263 (AAC)
SV v Secretary of State for Defence (AFCS) [2013] UKUT 201 (AAC)
SV v Secretary of State for Defence (AFCS) [2013] UKUT 541 (AAC)
SW v Secretary of State for Work and Pensions (DLA) [2015] UKUT 319 (AAC)
TB v Secretary of State for Defence (WP) [2014] UKUT 357 (AAC)
TH v Secretary of State for Defence (AFCS) [2017] UKUT 309 (AAC)
TL v Secretary of State for Defence (WP) [2013] UKUT 0522 (AAC) CAF/1450/2011
WM v Secretary of State for Work and Pensions (DLA) [2015] UKUT 0642 (AAC)
WS v Secretary of State for Defence (WP) [2015] UKUT 0557 (AAC) CAF/2196/2014
Table of Court and Nominated Judges' Decisions
Akram v Adam [2004] EWCA Civ 1601, [2005] 1 WLR 2762, [2005] 1 All ER 741
Baird v Minister of Pensions (1946) 1 WPAR 169
Blanchflower v Minister of Pensions (1950) 4 WPAR 887
Brain v Minister of Pensions [1947] KB 625, [1947] 1 All ER 892, [1947] LJR 1212, 63 TLR 294
Brown v Minister of Pensions (1946) 2 WPAR 461
Busmer v Secretary of State for Defence [2004] EWHC 29 (Admin), [2004] All ER (D) 143 (Jan)
Butterfield and Creasy v Secretary of State for Defence [2002] EWHC 2247 (Admin)
Buxton v Minister of Pensions (1948) 1 WAR 1121
Carltona Ltd v Commissioner of Works [1943] 2 All ER 560 (CA)
Charles v Hugh James Jones and Jenkins (a firm) [2000] 1 WLR 1278, [2000] 1 All ER 289, [2000] Lloyd's Rep PN 207 (CA)
Clarise Properties Ltd v Rees [2015] EWCA Civ 1118
Coe v Minister of Pensions and National Insurance [1967] 1 QB 238, [1966] 3 WLR 626, [1966] 3 All ER 172, 110 SJ 566
Cook v Minister of Pensions (1949) 4 WAR 625
Dickinson v Minister of Pensions [1953] 1 QB 228, [1952] 2 All ER 1031, [1952] 2 TLR 910
Docherty v Minister of Pensions (1948) 2 WPAR 655
Donovan v Minister of Pensions (1946) 1 WAR 609
Dore v Minister of Pensions (1947) 1 WAR 405
Duff v Minister of Pensions (1948) 2 WAR 753
Fenton v Thorley & Co Ltd [1903] AC 443, [1903] WN 149 (HL)
Freeman v Minister of Pensions and National Insurance [1966] 1 WLR 456, [1966] 2 All ER 40, 110 SJ 228 (QBD)
Fuller v Minister of Pensions (1948) 3 WPAR 1617
Gaffney v Minister of Pensions (1952) 5 WPAR 97
Giles v Minister of Pensions (1955) 5 WPAR 97
Giles v Minister of Pensions and National Insurance (1955) 4 WPAR 445
Gillan v Minister of Pensions (1953) 5 WAR 286
Hall v Minister of Pensions (1948) 3 WAR 1321
Harris v Minister of Pensions [1948] 1 KB 422, [1948] 1 All ER 191, [1948] LJR 463, 64 TLR 52, 92 SJ 85
Hinckley and South Leicestershire Building Society v Freeman [1941] Ch 32, [1940] 4 All ER 212, (1940) 164 LT 399, 57 TLR 71, 110 LJ Ch 36, 84 SJ 620
Hollorn v Minister of Pensions [1947] 1 All ER 124 (KBD)
Hornsby. See R (Secretary of State for Defence) v Pensions Appeal Tribunal ('Hornsby')
Horsfall v Minister of Pensions (1944) 1 WAR 7
Howard v Minister of Pensions and National Insurance (1955) 5 WAR 515
Irving v Minister of Pensions (1944) 2 WAR 401
Jacobs v Norsalta Ltd [1977] ICR 189, (1976) 11 ITR 206 (EAT)
Judd v Minister of Pensions and National Insurance [1966] 2 QB 580, [1966] 2 WLR 218, [1965] 3 All ER 642, 109 SJ 815
Kerr (AP) v Department for Social Development [2004] UKHL 23, [2004] 1 WLR 1372, [2004] 4 All ER 385
King v Minister of Pensions (1947) 1 WAR 809
Langford v Secretary of State for Defence [2019] EWCA Civ 1271, [2020] 1 WLR 537, [2019] Pens LR 21
Marshall v Minister of Pensions [1948] 1 KB 106, [1947] 2 All ER 706, [1948] LJR 289, 63 TLR 640, 91 SJ 40
Miers v Minister of Pensions (1964) 5 WAR 673
Miller v Minister of Pensions (1947) 1 WAR 615
Miller v Minister of Pensions [1947] 2 All ER 372, [1947] WN 241, [1948] LJR 203, 177 LT 536, 63 TLR 474, 91 SJ 484
Minister of Pensions v Chennel [1947] KB 250, [1946] 2 All ER 719, [1947] LJR 700, 176 LT 164 (KBD)
Minister of Pensions v Greer [1958] NI 156, [1959] CLY 2458 (NI High Ct)
Minister of Pensions v Griseti (1955) WPAR 457
Minister of Pensions v Horsey [1949] 2 KB 526, 65 TLR 430, 93 SJ 526
Minister of Social Security v Connolly 1967 SLT 121 (Ct of Sess IH 2 Div)
Monaghan v Ministry of Pensions (1947) 1 WAR 971, 91 SJ 692
O'Neill v Minister of Pensions (1947) 1 WAR 839
Ophelia, The [1916] 2 AC 206 (PC)
Pillbeam v Minister of Pensions (1948) 4 WAR 129
Pomiechowski v Poland [2012] UKSC 20, [2012] 1 WLR 1604, [2012] 4 All ER 667, [2013] Crim LR 147, [2012] HLR 22
R (Clancy) v Secretary of State for Defence [2006] EWHC 3333 (Admin)
R (Coull) v Secretary of State for Social Security 7 November 2000 [2000] All ER (D) 1723 (QBD Admin Ct)
R (Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982, [2005] INLR 633
R (Secretary of State for Defence) v Pensions Appeal Tribunal ('Hornsby") [2008] EWHC 2168 (Admin), (2008) 105(30) LSG 17
R v Barnet London Borough Council ex parte Nilish Shah [1983] 2 AC 309, [1983] 2 WLR 16, [1983] 1 All ER 226, (1983) 127 SJ 36, 1983) 81 LGR 305, 133 NLJ 61 (HL)
R v Department of Social Security ex parte Edwards 10 July 1992 (unreported) (DC)
R v Medical Appeal Tribunal (Midland Region) ex parte Carrarini [1966] 1 WLR 883, 110 SJ 509 (DC)
R v Medical Appeal Tribunal (North Midland Region) ex parte Hubble [1958] 2 QB 228, [1958] 3 WLR 24, [1958] 2 All ER 374, 102 SJ 471 (DC)
R v Secretary of State for Social Security ex parte Foe [1996] COD 505 (QBD)
Richards v The Minister of Pensions and National Insurance (1956) 5 WAR 631
Robertson v Minister of Pensions (1952) WAR 245
Royston v Minister of Pensions [1948] 1 All ER 778, [1948] LJR 1431, [1948] WN 188, 92 SJ 350, (1947) 3 WAPR 773
Sanders v Minister of Pensions (1948) 1 WAR 31
Scott v Minister of Pensions (1947) 2 WAR 589
Secretary of State for Defence v Hopkins [2004] EWHC 299 (Admin), [2004] ACD 58
Secretary of State for Social Security v Bennett 17 October 1997 (unreported) (QBD)
Secretary of State for Social Security v Fairey. See Cockburn v Chief Adjudication Officer; Secretary of State for Social Security v Halliday;
Secretary of State for Social Security v Fairey
Secretary of State for Social Security v KM [1998] ScotCS 67 (Ct of Sess (IH))
Secretary of State for Social Security v McLean (Northern Ireland) 17 November 2000 (unreported)
Secretary of State for Work and Pensions v Menary-Smith [2006] EWCA Civ 1751, [2006] All ER (D) 199 (Dec)
Senior President's Practice Statement 'Form of Decisions and Neutral Citation in the First-tier Tribunal and Upper Tribunal on or after 3 November 2008'
Shipp v Minister of Pensions [1946] KB 386, [1946] 1 All ER 417 (KBD)
South Bucks District Council v Porter (No 2) [2004] UKHL 33, [2004] 1 WLR 1953, [2004] 4 All ER 775, [2004] 28 EGCS 177, [2004] NPC 108
Starr v Minister of Pensions [1946] 1 KB 345, [1946] 1 All ER 400, (1945) 1 WAR 109 (KBD)
Wedderspoon v Minister of Pensions [1947] KB 652, [1948] LJR 5, 177 LT 8, 63 TLR 202
Whitehurst v Minister of Pensions (1947) 1 WAR 795
Williams v Minister of Pensions [1947] 2 All ER 564 (KBD)
Wood v Secretary of State for Work and Pensions R(DLA) 1/03 [2003] EWCA Civ 53, [2003] All ER (D) 330 (Jan), (2003) The Times, 11 February
Other possibly useful decisions (not referred to in Bano)
LA & Ors v Secretary of State for Defence (WP) [2014] UKUT 477 (AAC) - war pension, entitlement
Secretary of State for Defence v CAW [2023] UKUT 246 (AAC) - war pension, ALSO
Secretary of State for Defence v The Pensions Appeal Tribunal [2007] EWHC 1177 (Admin) [2008] 1 All ER 287 - War pension, Judicial Review, Pension Appeal Tribunal
Full judgments (formatting not considered!)
AL v Secretary of State for Defence [2014] UKUT 0524 (AAC)
AL v Secretary of State for Defence (WP) (War pensions and armed forces compensation : War pensions - specified decisions) [2014] UKUT 524 (AAC) (14 November 2014)
IN THE UPPER TRIBUNAL Case No. CAF/1433/2012
ADMINISTRATIVE APPEALS CHAMBER
Before Upper Tribunal Judge Rowland
The Appellant appeared in person.
The Respondent was represented by Mr Adam Heppinstall of Counsel, instructed by the Treasury Solicitor.
Decision: The claimant’s appeal is unsuccessful. I set aside the decision of the First-tier Tribunal dated 4 October 2011 and I substitute a decision that the claimant’s basic disablement pension payable under article 6 of the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 2006 (SI 2006/606) should be abated by £1,012.43 per annum and his unemployability supplement payable under article 12 shall be abated by an amount equal to the amount by which the rate of that allowance exceeds the rate of any analogous social security benefit to which he may be entitled (currently being contributory employment and support allowance with the support component) so that the abatement at the date of the Secretary of State’s decision on 12 July 2010 is £940.80 per annum. The total abatement of the claimant’s war pension at that date is therefore £1,953.23 per annum.
REASONS FOR DECISION
1. This is an appeal, brought by the claimant with the permission of the First-tier Tribunal, against a decision of that tribunal allowing in part his appeal against a decision of the Secretary of State dated 12 July 2010 that the claimant’s war pension be abated by £3,229 per annum in respect of £750,000 personal injuries compensation he had received. The First-tier Tribunal substituted a variable figure, amounting to £1,220.08 per annum at the date of the Secretary of State’s decision.
2. The background facts are not in dispute. The claimant served as an officer cadet and then commissioned officer in the Royal Air Force from 1989 until 2004. On 11 May 2000, he was a flying instructor with the rank of Flight Lieutenant when he was very seriously injured in a road traffic accident, which involved the car he was driving being hit from behind by a vehicle driven by an airman who had had late second thoughts about trying to overtake him on a country road. He sued the Ministry of Defence for damages in the High Court on the basis that his injuries had been caused by the negligence of the airman and, when he was invalided out of the Royal Air Force on 14 September 2004, he also made, or was deemed to have made, a claim for a war pension under the predecessor of the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 2006 (SI 2006/606).
3. The Secretary of State accepted that the claimant’s injuries were due to service. The reasons for that decision are not immediately apparent from the documents before me but are not material to this appeal. In due course, the claimant was awarded a pension, his retired pay being calculated initially on the basis of an assessment of disablement of 60%, presumably from 15 September 2004, which was increased after an appeal to 80% from 10 October 2005 and to 90% from 28 June 2007. However, these assessments all included assessments in respect of conditions other than those arising out of the relevant accident. The claimant’s disablement in respect of the conditions arising out of the relevant accident was, and it appears remains, assessed at only 40%. Apart from the basic disablement pension (or “retired pay”), his war pension included at one time an allowance for lowered standard of occupation and later an unemployability supplement, an invalidity allowance, a mobility supplement (which, if it was ever paid to the claimant, ceased to be paid to him when a Motability agreement was made), a constant attendance allowance and a comforts allowance. It is not recorded in the documents before me from what date or dates those allowances were paid.
4. Article 52 of the 2006 Order provides –
Adjustment of awards in respect of other compensation
52.–(1) Where the Secretary of State is satisfied that—
(a) compensation has been or will be paid to or in respect of a person to or in respect of whom a pension or gratuity is being or may be paid; or
(b) that any compensation which has been or will be paid will benefit such a person
the Secretary of State may take the compensation into account against the pension or gratuity in such manner and to such extent as he thinks fit and may withhold or reduce the pension or gratuity accordingly.
(2) …
(3) In this article “compensation” means—
(a) any periodical or lump sum payment in respect of the disablement or death of any person, or in respect of any injury, disease or incapacity sustained or suffered by any person, being a payment—
(i) for which provision is made by or under any enactment, Order in Council (including this Order), Warrant, Order, scheme, ordinance, regulation or other instrument; or
(ii) which is recoverable as damages at common law; or
(b) …; or
(c) any periodical or lump sum payment made in settlement or composition of, or to avoid the making of, any claim to any payment falling within subparagraph (a) or (b) of this paragraph, whether liability on any such claim is or is not admitted.”
5. On 7 July 2006, the Secretary of State decided that the claimant’s war pension should be abated under article 52 by £481.33 per month in the light of interim payments of £25,000 received by the claimant on 1 November 2004 and 23 December 2005 as a result of orders made by the High Court. The claimant appealed against that decision and, on 19 October 2007 a Pensions Appeal Tribunal, having noted that no explanation for the amount of the abatement had been given, allowed the appeal, broadly on the ground that abatement was premature. It is unnecessary for me either to set out the precise reasoning or to express any view on it. The immediate result of the decision of the Pensions Appeal tribunal was that arrears of war pension were paid and the abatement was stopped.
6. The claimant’s action against the Ministry of Defence was listed for hearing on 13 October 2008 but was settled on 2 September 2008 following mediation. Liability had already been accepted, subject to agreed contributory negligence of 5% on the part of the claimant. £100,000 had been paid into court, most of which had already been paid to the claimant in interim payments, and the balance of £650,000 was to be paid to the claimant’s solicitors by 24 September 2008.
7. It appears that the claimant first informed the Secretary of State of the receipt of the £650,000 on 14 March 2010, when he said that it had all been paid into a “disability trust” so that he did not have it himself. He also said that he had “agreed under duress to accept a low offer for only limited special damages … not including loss of earnings”. He subsequently sent a “schedule of special damage and future losses” submitted in the High Court proceedings, based on four options under which the claim was for £5,731,431.20, £4,448,985.42, £4,294,788.27 or £3,535,189.92, the differences reflecting different career scenarios and therefore different figures for lost earnings and pension rights. The Secretary of State did not appreciate that the total compensation awarded was £750,000 and proceeded to make a new abatement decision under article 52 on the basis that the award was of £650,000
8. On 12 July 2010, he decided that the amount of the award of war pension was to be abated by £3,229 per annum. The decision letter said –
“You were paid the sum of £650,000.00. We have disregarded £565,352.52 of this money and converted the balance of £84,647.48 into the terms of an annual income which could be received as a Life Annuity bought on the date of the compensation was paid and calculated in accordance with the Ogden Tables, as recommended by the Government Actuary’s Department.
The annual income has been worked out at £3,329.96. We are not able to abate by this full amount at the present time as we cannot abate by more than the current rate of 40% War Pensions as this is the percentage of War Pensions that relates to your accident and to what your compensation has been awarded for. We will therefore abate by the current 40% pension rate which is £3229.00 per annum. Your pension will be abated by this amount each year. It will be revised at each uprating.”
This was put into effect from 15 July 2010.
9. The claimant appealed, arguing again that the payment did not include loss of earnings and also referring to part of the reasoning of the Pensions Appeal Tribunal in his earlier appeal. The Secretary of State put in a hopelessly inadequate response to the appeal, which failed to explain how the amount of the abatement had been calculated beyond what had been said in the decision letter. The claimant also had not provided relevant documents. Accordingly, when the case first came before the First-tier Tribunal, to whom the functions of Pensions Appeal Tribunals in England and Wales had been transferred, the judge gave detailed directions for further evidence to be submitted.
10. This resulted in the number of documents in the bundle increasing from 37 to 646 (including documents supplied to the Secretary of State by the claimant), with further documents from the claimant in relation to his claim for loss of earnings taking it to 787. Among the documents provided by the Secretary of State were paragraphs 10000 to 10039 of A Guide to War Pensions Policy, dealing with abatement in respect of what is called in the guide “Third Party Compensation” (abbreviated as “TPC”) and the detailed calculation made in the present case. This part of the policy guide was written in January 1997 and appears not to have been amended since then. I have been unable to find it on the Internet and so set out here the most relevant paragraphs –
“General policy
Reasons for the provisions
10006 It is a fundamental principle of the War Pensions Scheme that compensation should not be paid twice for the same disablement. This principle is justified for the following reasons:
· but for the negligence of the third party, the State would not be paying a war pension or gratuity at all,
· a service man/woman disabled in a "peacetime" accident should not be treated more favourably than one disabled in action against an enemy (when the question of pursuing a claim for Third Party Compensation (TPC) would not arise in practice).
10007 The policy intention is therefore that awards of war pension or gratuity should, if appropriate, be abated to prevent duplication of payment for the same disablement.
Disregards applied to TPC
10008 In determining the amount of the TPC award to be taken into account, the following items are disregarded in whole or in part:
Totally disregarded
· any expenses incurred in pursuing the TPC claim which are not recovered from the third party;
· special damages, other than for loss of earnings (see separate heading - Special Damages);
· special damages paid for loss of earnings in respect of any period prior to the commencing date of war pension or notional commencing date of gratuity;
· interest paid on general or special damages;
Partially disregarded
· after disregarding the amounts at sub paragraphs Totally disregarded, 75% or £500, whichever is the greater, of the balance of general damages, and special damages for loss of earnings paid in respect of any period on or after the commencing date of war pension or the "notional" commencing date of gratuity.
10009 Very broadly, the disregard of 75% or £500 of the general damages - and special damages purports to treat war pensioners on a par with their civilian counterparts who sustain an industrial accident or disease for which a third party was to blame, and for which Industrial Injuries Disablement Benefit is payable. The disregard also serves:
· as an incentive to claim damages,
· to compensate for the notional time lapse in negotiating an annuity,
· to allow for income tax arising on the life annuity (or other from of the investment of the damages in whatever way the pensioner may choose), because the war pension is not "taxable income" for income tax purposes.
10010 The balance, representing 25% of the total sum paid as "general damages" plus 25% of any "special damages" paid for loss of earnings in respect of any period on or after the commencing date of the war pension,, or the notional commencing date of the gratuity or, if less, the amount in excess of £500, is normally taken into account against the war pension or gratuity as follows:
· Gratuity payable: the gratuity payable is reduced (or abated) by the resulting sum.
· Pension payable: since it is necessary to convert a lump sum TPC into a form that permits the equitable abatement of a continuing pension, the resulting sum is "translated" using tables supplied by the Government Actuary, into a life annuity, payable at a fixed weekly rate, which the resulting sum would be reckoned to purchase. This has regard to:,
o the pensioners age; and,
o the Price of 2½% Consols (undated Government Stock);
at the date of final settlement of the TPC claim.
10011 The weekly war pension payable is then reduced (or abated) by the amount of the weekly annuity from the time of settlement, or the commencing date of the war pension award if later.
10012 The concept underlying the annuitisation of the resulting sum taken into account is that for the rest of his or her life a continuing income could be available to the pensioner; an income which he or she would not have so acquired had it not been for the negligence of the third party, and but for which a war pension would not be payable.
Special damages
10013 Special damages are, broadly:
· damages for a particularised loss, the amount of which does not depend on future contingencies, but can be computed more or less exactly by reference to what has already been lost.
· made up of quantifiable sums and are not, in general, awarded for the actual disablement, death or incapacity of the injured person.
Special damages should not be taken into account against pension.
Examples of special damages
10014 This list is not exhaustive and there may be other instances.
· the value of personal items destroyed in the accident. "Personal items" refers to articles such as clothes, a motor car or cycle.
· the cost of repair of such personal items damaged in the accident.
· husband's or wife's expenses in visiting their partner While in hospital as a result of the accident.
· cost of extra nourishment during convalescence.
· extra costs incurred because of a funeral.
· loss of earnings, if any, between the date of the accident and the date on which the injured person returned to work.
Abatement of supplementary allowances
10015 If the weekly rate of the life annuity exceeds the amount of the basic war pension, the balance will reduce the amount of any supplementary allowances that may be payable.
10016 No supplementary allowance should be reduced below the amount of any alternative Social Security benefit to which there may be underlying entitlement, eg;
· CAA should not be reduced below the appropriate rate of AA/DLA Care Component;
· WPMS should not be reduced below the appropriate rate of DLA Mobility Component;
· UNSUPP should not be reduced below the rate of any overlapping Social Security benefit intended for "day to day" maintenance, eg Retirement Pension, Sickness/Invalidity Benefit or Severe Disablement Allowance, Unemployment Benefit, Invalid Care Allowance or, for disabled women, National Insurance Widows Pension.
Abatement in respect of interim payments
10017 If and when any interim payment of TPC is made, the amount of war pension payable will be reviewed in the light of the amount received.
The effect of future upratings on abated War Disablement Pensions
10018 To determine the increased rate of pension payable following a general uprating the amount of war pension payable before abatement is uprated in the normal way.
10019 The new increased amount is then abated by the same fixed amount previously determined. This ensures that the pensioner gets the full percentage increase in his pension appropriate to his degree of disability.”
11. Against the background of that policy and his understanding that the claimant had received only £650,000, the Secretary of State based his calculation on the claimant’s schedule of special damage and future losses, taking the lowest of the four options. As £650,000 is 18.39% of £3,535,189.92, he deducted 18.39% of the claimed losses other than loss of earnings and occupational pension rights (representing special damages to be totally disregarded) from the £650,000 and then deducted 75% of the balance. Thus the total amount disregarded (see paragraph 10008 of the policy guide) was £565,352.52. This produced the figure of £84,647.48, which was divided by 25.42 (the multiplier derived from Ogden Table 1 for a male aged 41, which was the claimant’s age when he received the compensation) to produce the figure of £3,329.96 per annum by which the war pension would have been abated had the relevant proportion of the basic disablement benefit not been lower than that figure. As the current rate of basic disablement pension in respect of a 40% assessment was only £3,229 per annum, the whole of that £3,229 was abated. However, there was no abatement of the unemployability supplement or the other allowances.
12. At the second hearing, the First-tier Tribunal considered that analysis but regarded it as “neither rational nor fair”. Apart from the fact that the claimant had received £750,000 rather than £650,000, it pointed out that the Secretary of State’s calculation had made no allowance for part of the compensation being in respect of general damages or for part of it being in respect of loss during the period between the date of the accident and the date when the claimant first became entitled to a war pension. It also considered that abatement should be on a “like-for-like” basis under which the basic disablement pension attributable to the relevant 40% assessment should be abated by an amount reflecting only the general damages but that the allowances should in principle be abated in respect of relevant elements of special damages and compensation for future losses. This led to calculations even more complicated than those made by the Secretary of State.
13. The First-tier Tribunal accepted the claimant’s evidence that he had been advised that the appropriate amount of general damages for the relevant injuries would be £30,000 and considered that, since liability had been admitted on a 95% basis and the mediation had been concerned primarily with the quantum of special damages, it was reasonable to take £28,500 of the £750,000 as having been notionally paid in respect of general damages. It then reduced that figure to £27,184 to reflect the fact it in part covered the period of over four years before the claimant became entitled to a war pension. It did that by dividing £28,500 by 28.15 (multiplier for life: Ogden Table 1, male 33 – the claimant’s age at the date of the accident) and multiplying the resulting figure of £1,012 by 26.85 (multiplier for life: Ogden Table 1, male 37 – the claimant’s age at the commencement of the award of war pension). It then divided £27,184 by 26.85 (multiplier for life: Ogden Table 1, male 37) and, unsurprisingly, reached the figure of £1,012 again as the amount to be abated annually from the basic disablement pension. (I observe that the same result would have been obtained more simply by holding that the appropriate multiplier to be used as a divisor in respect of general damages was that applicable at the date of the relevant injury rather than at the date of the commencement of the award of war pension or, as the Secretary of State had decided, the date the compensation was received.)
14. The First-tier Tribunal then considered to what extent there should be any abatement of the additional allowances by reference to damages notionally paid for the same purpose. In calculating the part of the £750,000 received that was to be treated as notionally paid in respect of each element of the claim, it made adjustments to take account of the facts that part of the award was for past loss during the period before the claim for war pension was made, that some elements of the claim were unlikely to have been reduced by much during the mediation process whereas others would have been very much in dispute, that one element was interest and that the overall claim included general damages.
15. It then decided that in principle the total amount of unemployability supplement and invalidity allowance, being income-replacement elements of the award, should be abated by an amount in respect of the damages notionally received for loss of earnings, but not so as to reduce them to a level below that of the equivalent social security benefit, which it considered to be contributory employment and support allowance with the support component. On this basis, it concluded that the annual abatement of unemployability supplement should be £207.65, with no abatement of the invalidity allowance.
16. It similarly decided that in principle the amount of the mobility supplement and constant attendance allowance should be abated by an amount in respect of damages notionally received in respect of, respectively, future transport costs and care needs, but not so as to reduce them below the amount of, respectively, the higher rate of the mobility component and the middle rate of the care component of disability living allowance. On this basis, it concluded that there should be no abatement of constant attendance allowance because the amount of the allowance was less than the middle rate of the care component of disability living allowance. In the case of the mobility supplement it decided that there should be no abatement because even a minor abatement would cause the claimant’s Motability Agreement to be cancelled.
17. It also decided that the comforts allowance was not comparable to any of the claimed heads of special damage and so should not be abated.
18. The overall effect of the First-tier Tribunal’s decision was therefore that the total abatement as at the date of the Secretary of State’s decision on 12 July 2010 should be only £1,220.08 p.a and it would have required a recalculation following each annual up-rating of war pensions.
19. The claimant sought permission to appeal on the grounds that the First-tier Tribunal had no power to consider an abatement of the allowances when the Secretary of State had decided to abate only the basic disablement pension, that it had directed abatement for a longer period than that for which ordinary social security benefits would have been recovered under the Social Security (Recovery of Benefits) Act 1997 and that there had been errors in the calculation. He was given permission to appeal on all three grounds. His appeal was late but the Secretary of State has not argued that it should not be admitted. In his response to the appeal, the Secretary of State opposes the first two grounds of appeal but accepts the third in part. I held an oral hearing, which I have found helpful. During the course of the hearing, I intimated that I might remit the case to the First-tier Tribunal but, on reflection, I have decided to substitute my own decision for that of the First-tier Tribunal
20. It is convenient to take the first and third grounds of appeal first and then consider the broader questions of policy raised by the third ground.
21. I reject the first ground of appeal. The claimant is, of course, correct in asserting that the scope of an appeal is, absent special provisions to the contrary, determined by the scope of the decision being challenged. However, identifying the scope of the decision being challenged needs to be done in a practical way that promotes justice for both parties. The issue for the Secretary of State was how article 52 should be applied to all the elements of war pension that had been awarded to the claimant and the fact that he chose to abate only the basic disablement pension does not imply that he did not, or should not, have considered whether other allowances should also be abated. Moreover, applying any sophisticated policy to abatement of the type argued for by the claimant or adopted by the First-tier Tribunal involves looking at all the elements of a war pension. That should clearly be done looking at all the elements at the same time because, if the First-tier Tribunal had made a decision only in respect of the basic disablement pension on the basis that only that element had been considered by the Secretary of State, it would remain open to the Secretary of State subsequently to make decisions in respect of the other allowances in the light of the First-tier Tribunal’s decision, in respect of which there would be a separate right of appeal and a risk of inconsistent approaches being taken. The claimant refers to section 5B(a) of the Pensions Appeal Tribunals Act 1943 but that merely has the effect that the First-tier Tribunal “need not” consider issues not raised by the parties, even though they are within the scope of the appeal. Unlike section 5B(b), it does not limit the powers of the First-tier Tribunal. What it does is limit the circumstances in which the Upper Tribunal may find the First-tier Tribunal to have erred in law by not addressing an issue because it means that the First-tier Tribunal cannot be criticised for not dealing with an issue that the parties have not raised unless the issue was “clearly apparent from the evidence” (Mongan v Department for Social Development [2005] NICA 16 (reported as R3/05 (DLA)) and Secretary of State for Work and Pensions v Hooper [2007] EWCACiv 495 (reported as R(IB) 4/07)).
22. As to the third ground of appeal, it is common ground that there were three errors in the First-tier Tribunal’s decision, even assuming that its overall approach was correct.
23. First, the parties agree that it had been wrong to work on the basis that he had received £750,000 in damages because he had in fact had to pay out of that sum two payments that ought to have been payable out of costs, due to an error by his solicitors. I am not entirely convinced that this is an error of law, given the evidence before the First-tier Tribunal, and I am also not entirely convinced that the sum has not been, or could not be recovered from the solicitors but I would be content to accept that any calculation necessary for the purpose of re-deciding this case should be based on the claimant having received damages amounting to £734,666.63.
24. Secondly, although the Secretary of State based his calculation on Option 4 in the claimant’s schedule of loss, the First-tier Tribunal expressed a preference for Option 2, for reasons it explained but then actually used the figures from Option 4 when it came to the calculation. Looking at its reasons and the options, I rather think it may simply have confused the option numbers. However, the claimant has brought an additional challenge relating to Option 1, which I shall address below.
25. Thirdly, there is a point that was not part of the claimant’s original ground of appeal but which he now accepts: the First-tier Tribunal made a simple, but serious, arithmetic error which, being irrational, is a clear error of law. Instead of dividing the various amounts under the various heads of special damage and future loss by 26.85 as it intended in order to annuitise them, it divided them by 1,012.43. Mr Heppinstall suggested that that was probably the result of the judge clicking on the wrong figure on an electronic spreadsheet and, looking at the layout of the Appendix to the First-tier Tribunal’s decision which may have been taken from such a spreadsheet, that does seem likely. In any event, it can easily be seen that the figures in the relevant column of the Appendix are too low by a factor of nearly 40. This resulted in too little abatement on the First-tier Tribunal’s general approach.
26. Indeed, this third error renders the first two academic because, even without doing the detailed arithmetic, it is obvious that using the correct figures would have led the First-tier Tribunal to conclude that there should be an annual abatement of unemployability supplement equal to the difference between the total amount of the unemploybability supplement and invalidity allowance less the amount of employment and support allowance and would not otherwise have affected its decision, whichever option had been applied. The abatement would have been £940.80 per annum at the date of the Secretary of State’s decision. Thus correcting the error would result in a decision less favourable to the claimant than that actually made by the First-tier Tribunal.
27. The claimant argues that there are further errors. First, he argues that the First-tier Tribunal ought to have taken Option 1 as the basis for calculation. The Secretary of State argues that, although the First-tier Tribunal could have taken Option 1, it did not err in law in not doing so. It considered Option 1 and simply considered Option 2 to be more likely, as it was entitled to do. However, it seems to me that it did not really give any reasons for its view on the relative likelihood of the two options and indeed, as I have said, may simply have mixed up the option numbers. On the other hand, as I have also said, it actually would not have made any difference which of the options was taken given the figures and the First-tier Tribunal’s general approach. I therefore do not accept that any error on the part of the First-tier Tribunal as regards the choice between the options was in itself material. Nevertheless, I would be content to take Option 1 as the basis of any calculation necessary in re-deciding the case, because I see no reason not to accept the claimant’s evidence that that was the scenario used as a starting point in the mediation and that his likely career prospects had not been substantially in dispute.
28. The parties agree that £30,000, being the value of the claim for general damages, would in any event have to be added to the relevant option to obtain the total value of the claim for compensation, but the First-tier Tribunal does not appear to have erred in that regard – see the deduction of general damages at paragraph 26(d) of the statement of reasons, which I think has the desired effect. However, the claimant argues that the amount of general damages should have been reduced so that the amount taken into account was that proportion of the £30,000 that the whole claim bore to £734,666.63. I reject the submission that the First-tier Tribunal erred in law in that regard. Although the whole claim may notionally have been within the scope of the mediation, the First-tier Tribunal gave cogent reasons for considering that there would have been little scope for argument about general damages of £30,000 and that it was the claim for special damages that should be assumed to have been reduced.
29. I turn, then, to the second ground of appeal, which is that there should have been abatement only of the war pension received within five years of the accident.
30. Both parties agree that article 52(1) confers a very broad discretion and that the First-tier Tribunal was not bound by the Secretary of State’s policy. The First-tier Tribunal referred to a passage in R(AF) 3/07 where I said –
While, on an appeal, a tribunal is not bound by the policy, it must exercise the discretion conferred by the legislation judicially which, again, means exercising it in a way that furthers the purpose of the legislation and is rational and, moreover, it should have regard to the Secretary of State’s policy and explain any departure from it.”
31. Indeed, the policy guide itself recognises at paragraph 10034 that there may be special circumstances that would justify not applying the general policy and, although the policy guide produced in this case dates from January 1997, the policy is in fact of sufficient antiquity to have been considered by the Court of Appeal in Payne v Railway Executive [1952] 1 K.B. 26, in which Singleton LJ, with whom Birkett LJ agreed, said –
“It is not suggested that the practice generally followed is binding, but no doubt it accords with justice and fairness in normal cases. There is no reason why the Minister should adhere to it in every case; he has the right and, as I think, the duty, to consider each case on its merits.”
32. The issue in Payne v Railway Executive had been whether the amount of a war pension paid in consequence of a railway accident should be deducted from damages payable because the accident had been caused by negligence on the part of those responsible for operating British Railways. The Court of Appeal decided that it should not and that approach continues generally to be taken in the courts. However, as noted in paragraph 10022 of the policy guide, the law on that question is not entirely free from doubt. Cohen LJ and Singleton LJ gave different and arguably not entirely consistent reasons for their concurrence in dismissing the defendants’ appeal and Birkett LJ merely agreed with both of them. In Browning v War Office [1963] 1 Q.B. 750, the Court of Appeal held by a majority that Payne v Railway Executive was no longer good law, being inconsistent with a later decision of the House of Lords, but in Parry v Cleaver [1970] 1 AC 1, the House of Lords criticised the reasoning of both decisions in another split decision in which the three judges in the majority made separate speeches, as did the two dissenting judges. Since neither Browning v War Office nor Parry v Cleaver was actually concerned with a war pension paid to a former member of the British armed forces, the latter decision has not made completely clear how common law damages are to be assessed in the light of entitlement to such a pension. Happily, it is unnecessary to carry out a detailed analysis of the speeches in Parry v Cleaver. It is recognised in paragraphs 10021 and 10024 of the policy guide that the general premise of the policy is that no account has been taken of the war pension in the assessment of damages and that a different approach would be necessary if the war pension had been taken into account. In the present case, it has not been suggested that the claimant’s war pension was taken into account in the assessment of damages by either party and so abatement must be considered on that basis.
33. The First-tier Tribunal’s view that the Secretary of State’s policy was nonetheless “neither rational nor fair” was clearly a sufficient reason for departing from it if that view was justified. While not necessarily agreeing with that description of his policy, the Secretary of State accepts that the First-tier Tribunal was entitled to consider that its approach was more rational and fairer than his and he does not challenge its general approach in this case. He is of course hampered in any defence of his policy by the fact that it is so old and has been the subject of so little thought since it was first introduced that no-one can now remember why the policy is as it is.
34. There are certainly difficulties with the policy. The rationale advanced at paragraphs 10006 and 10007 would, if taken to its logical extreme, require damages to be taken fully into account, which is not what is achieved by the partial disregard of general damages and special damages for loss of earnings described in paragraph 10008 and explained in paragraph 10009, where the rationale is said to be “to treat war pensioners on a par with their civilian counterparts who sustain an industrial accident or disease for which a third party was to blame and for which Industrial Injuries Disablement Benefit is payable”. There is a tension between the different rationales. Moreover, I am not sure how, either in January 1997 or in 1952, the partial disregard achieved the stated aim. The industrial injuries scheme, first introduced by the National Insurance (Industrial Injuries) Act 1946 with effect from 5 July 1948, is similar to the war pensions scheme, which is not surprising because it was based on it. The similarities were even more marked before the Social Security Act 1986 came into effect than they are now. The industrial injuries scheme then made provision for disablement benefit, in the form of either a gratuity or a pension, and what were technically increases of disablement benefit, including unemployability supplement and constant attendance allowance, equivalent to many of the allowances under the war pensions scheme. Section 2(1) of the Law Reform (Personal Injuries) Act 1948 provided that, in assessing damages for an injured person in respect of his injuries, there should be taken into account against any loss of earnings “one half of the value of any rights which have accrued or probably will accrue to him therefrom in respect of … industrial disablement benefit … for the five years beginning with the time when the cause of action accrued” and section 2(2) excluded constant attendance allowance altogether. It is not obvious to me how the Secretary of State’s policy was ever thought to achieve a similar result for war pensioners. The tax implications mentioned in paragraph 10009 of the policy guide cannot provide the answer because, like war pensions, industrial injuries benefits are not, and never have been, taxable and nor are many other social security benefits.
35. In any event, the approach to the assessment of damages for those injured in industrial or other accidents and entitled to civilian social security benefits has been radically changed as a result of legislation intended to ensure that the taxpayer does not bear the full cost of benefits paid to those injured through negligence or a breach of statutory duty. The relevant provisions of the 1948 Act have been repealed. Section 22 of, and Schedule 4 to, the Social Security Act 1989 first introduced a scheme under which the relevant Secretary of State recovered from tortfeasors the cost of benefits paid to the victims of torts. However, it was widely accepted that that scheme was flawed and it was replaced with effect from 6 October 1997 (subject to a transitional saving) by a scheme set out in the Social Security (Recovery of Benefits) Act 1997. Neither scheme seems to have resulted in any amendment to the Secretary of State’s approach to the abatement of war pensions.
36. Under the 1997 Act, a compensator making a payment to a person who has suffered an accident, injury or disease is required to pay to the Secretary of State an amount equal to the amount of social security benefits paid in consequence of the accident, injury of disease during the period before the payment is made or within five years of the accident, injury or disease, whichever is the shorter, but may deduct the amount of such benefits from compensation paid under the relevant head of damages (i.e., lost earnings, the cost of care or loss of mobility). See, in particular, sections 1, 3, 6 and 8 and Schedule 2. Under section 17, benefits are otherwise wholly disregarded in the assessment of damages. Thus, the 1997 Act attempts to balance the respective interests of tortfeasors, claimants and the Secretary of State in a way that is not too administratively complicated.
37. The disregarding of war pensions in the assessment of damages and abatement under article 52 of the 2006 Order or its forerunners have together always had the effect of allowing the Secretary of State to recover the amount of a war pension paid in respect of an accident, injury or disease indirectly from the tortfeasor. However, the claimant’s argument is essentially that parity with those injured in industrial accidents requires that the period of abatement of a war pension should be limited to five years – at least in his case where his claim was settled more than five years after the accident.
38. In resisting that argument, the Secretary of State points to a number of differences between war pensions and benefits paid under the industrial injuries scheme, not all of which are material or even accurate. I agree with the claimant that it is irrelevant that the link that the industrial injuries scheme requires between an accident and employment may be different from that required by the 2006 Order between an accident and service. I also reject the Secretary of State’s assertion that the 1997 Act requires industrial injuries disablement benefit to be recouped in its entirety and, because article 52 provides that the Secretary of State “may take the compensation into account against the pension or gratuity in such manner and to such extent as he thinks fit and may withhold or reduce the pension or gratuity accordingly”, the 2006 Order is, “ultimately, more generous in that it would never lead to the reduction of a head of damage to nil”. If the 2006 Order were necessarily more generous, the claimant would never have appealed to the First-tier Tribunal. As he points out, the Secretary of State does not take into account the limited period in respect of which the 1997 Act allows recovery of benefits. In any event, the 1997 Act does not necessarily require the basic industrial injuries disablement pension to be recovered in its entirety: it treats it as though it were compensation for loss of earnings, which is arguably anomalous but has the effect of protecting awards of general damages and ensuring that the basic disablement pension is recoverable only if compensation is calculated on the basis that the claimant has lost earnings and even then only in respect of a limited period.
39. On the other hand, I do accept that it is relevant that, whereas a person is not entitled to industrial injuries disablement benefit “until after the expiry of 90 days (disregarding Sundays) beginning with the day of the relevant accident” (section 103(6) of the Social Security Contributions and Benefits Act 1992), a war pension is payable only after service in the regular armed forces has come to an end. This has the effect that a war pension is likely to be payable in respect of only the latter part of the five years after the accident and, indeed, may not be payable until that period has elapsed. Civilian employers are less likely to retain in employment on full pay a person who is unable to work for as long as the services are often prepared to do and, anyway, civilian benefits are often payable while a person is still in employment. I also observe that the way in which the 1997 Act works has the effect that the amount of recoverable benefits to be taken into account when damages are assessed is always an already determined amount in respect of a past period, that recourse to the Ogden tables is unnecessary, and also that recovery of the benefits has no impact on future entitlement to any benefit.
40. Against that background, I will consider what approach I would have taken had I been in the First-tier Tribunal’s shoes, before considering whether, since an appeal to the Upper Tribunal lies only on a point of law, I should actually depart from the approach that the First-tier Tribunal took.
41. First, I would accept the claimant’s submission that it is unlikely that Parliament, who ultimately authorise the award of war pensions, would wish injured ex-servicemen who are able to obtain common law damages in respect of personal injuries to be treated less favourably than injured industrial workers or other civilians. Parity is a stated aim of the current policy and the Secretary of State has not explicitly argued for the abandonment of that aim.
42. Secondly, and in the light of that first consideration, I would accept that the amount of an abatement of war pension in respect of damages for personal injury should not be greater than the relevant elements of a war pension received in respect of the relevant injury over a period of five years. However, I do not consider that the relevant period of five years should necessarily be the five years since the date of the accident. The war pension scheme, unlike the social security system, has always allowed the Secretary of Secretary of State to retain through abatement the value of benefits that would otherwise be paid in order to avoid a duplication of payments and I am not persuaded that reasonable parity with those injured in industrial accidents requires the same five years to be taken when, as the Secretary of State has pointed out, awards of war pensions are much more likely to commence from a date substantially after the date of the accident. It is enough that the amount of abatement should be calculated by reference to benefits received only within a period of five years. Since the claimant’s case was settled over eight years after the relevant accident, it is unnecessary for me to consider whether the relevant period should be less than five years where compensation is paid within less than five years of the relevant accident. The policy reasons for taking that approach in the 1997 Act – principally encouraging both parties to settle cases early – are less strong in the war pensions’ context where the policy might exert pressure on the claimant but not the defendant.
43. Thirdly, the period over which the amount of abatement is calculated need not be the same as the period over which abatement is carried out. Provided that the total amount of war pension recovered does not exceed the relevant amount paid in five years, I would accept that the period over which the abatement takes place may be longer or, indeed, shorter and it may start later. Thus, in the present case, I would consider that the period of five years in respect of which the amount of the abatement would be calculated should be the five years from the date that the award commenced upon the claimant leaving the Royal Air Force, even though abatement could not have commenced until the compensation was paid.
44. Fourthly, I would consider that the amount of abatement should be calculated in the same way as the amount of recoverable benefits is calculated under section 8 of, and Schedule 2 to, the 1997 Act, that is to say by taking account of each element of war pension to the extent to which it is duplicated by the relevant part of the payment of compensation.
45. For these purposes, although I agree with the First-tier Tribunal that the basic disablement pension is akin to general damages, I would consider that it should be taken into account against compensation for loss of earnings – as under the 1997 Act and for the same reason: this approach protects awards of general damages when there is no award for loss of earnings. I agree with the parties that only the amount payable in respect of an assessment of 40% would be taken into account in this case. As the First-tier Tribunal decided, unemployability supplement and invalidity allowance would also be taken into account against compensation for loss of earnings, as would an allowance for lowered standard of occupation. Constant attendance allowance would be taken into account against damages in respect of care and a mobility supplement would be taken into account against damages in respect of loss of mobility. At this stage of the calculation, those elements would all be taken into account in full if they were exceeded by the amount paid under the relevant head of damages; there would be no need to protect any element equivalent to civilian social security benefit or a Motability agreement.
46. Calculation of the appropriate proportion of a payment of compensation to be allocated to each head of compensation is always likely to be difficult where a case has been settled without any agreement as to the precise basis of the settlement. However, as in this case, it will often be possible to obtain from a claimant documents sufficient to show whether the claim included elements in respect of loss of earnings, the cost of care and loss of mobility and to make an informed judgement as to whether the likely basis of any settlement can be determined or whether all heads of claim should be taken to have been reduced by the same proportion. Given the elements of estimation and assumption involved, I do not consider that it would usually be necessary to descend to the level of detail achieved by the First-tier Tribunal in this case. The calculation also has a different end in mind. It is to determine the amount of compensation under the relevant head that it is reasonable to attribute to the relevant period of five years.
47. Having done that calculation, it might be necessary to make adjustments to take account of, for instance, the recovery under the 1997 Act of civilian social security benefits awarded before the claim for war pension was made, if otherwise there would have been recovery of benefits over a period of more than five years or there would be some other unfairness to the claimant.
48. Finally, once the amount of abatement has been established, the war pension would be abated in order to recover that amount. However, the rate at which it would be abated would need to take account of the claimant’s current circumstances. It is at this stage that there might be a need, say, to leave a claimant entitled to constant attendance allowance or a mobility supplement if that might make a claim for personal independence payment unnecessary or would protect a Motability supplement. There is no virtue in abatement that saves expenditure by the Secretary of State for Defence money but requires additional expenditure by the Secretary of State for Work and Pensions. On the other hand, while it would be essential not to calculate the amount to be abated by reference to any part of the award not attributable to the relevant accident, it seems to me to be that it would be permissible to abate those other parts of the award where appropriate, particularly where, say, an allowance taken into account in calculating the amount of the abatement was not to be abated. Abatement would continue for as long as necessary to recover the sum calculated as above.
49. In this case, I would see no reason not to accept most of the First-tier Tribunal’s approach in calculating the amount of the total award of compensation to be attributed to the different heads of damage. In particular, I would adopt its finding that the claim for general damages was £30,000 and that the agreement on liability would have reduced that by 5% to £28,500 but that the mediation in respect of quantum would not have led to any further reduction. I would be prepared to take Option 1 as the basis of the calculation of the amount of special damages and compensation for future loss recovered but I would adopt the First-tier Tribunal’s finding that the claim for special damages in respect of past loss other than loss of earnings and loss of pension rights (worth £146,866.64) would have been reduced by only 20% in the course of mediation (to £117,493.31). I would further adopt its finding that the interest on that sum would have been £20,000. Taking the total sum received as £734,666.63 and deducting from it the amount of general damages and special damages for past loss (other than loss of earnings and loss of pension rights) and associated interest, would give a figure of £568,673.32, which would be the amount received in respect of past loss of earnings and loss of pension rights and all future losses. The amount claimed in respect of those losses under Option 1 had been £5,473,187.98. The amount received would therefore have been 10.39% of the amount claimed. Like the First-tier Tribunal, I would take as a starting point an assumption that all these heads of claim were reduced by the same proportion.
50. On this basis, the claim for past personal care would have been reduced to 80% of the amount claimed and therefore to £7,802. Past loss of earnings, future loss of earnings, and the cost of future care would have been reduced to 10.39% of the amount claimed and therefore to £50,380, £290,010 and £14,690 respectively. Past losses were attributable to the period from the date of the accident, 11 May 2000, to the date of the payment, 24 September 2008. However, the losses were not necessarily incurred evenly over that period. In particular, loss of earnings was relatively limited while the claimant continued to be paid as a serving officer in the Royal Air Force and would have been greater from 15 September 2004 (which, of course, is also the date from when the war pension was awarded) and even greater from early 2005 when, it was assumed in the calculation of the claim for compensation, the claimant would have retired from the Royal Air Force and have become a commercial airline pilot. It would be only the compensation paid for loss of earnings during the almost exactly four years immediately before the compensation was received that would have needed to be taken into account for abatement purposes. Similarly, in relation to future loss of earnings, it would have been only the compensation in respect of losses during the period of just under a year after the receipt of the payment that would have needed to be taken into account. Other things being equal, that annual sum would be ascertained by doing the calculation of lump sum compensation in reverse, i.e, dividing the sum received in respect of the relevant head by the multiplier that would have been used in the calculation of compensation. The multiplier in respect of loss of earnings incurred over the remainder of a person’s working life would, however, generally be lower than the multiplier for losses incurred over the remainder of that person’s natural life. Also, loss of future earnings includes loss of future promotion prospects, so that the loss of earnings in the initial years would be likely to be lower than those later.
51. I do not consider that it would be necessary to carry out any further detailed calculation in this case. Looking at the figures, including the detailed estimates for particular periods, it would be tolerably clear that the sum recovered in respect of loss of earnings for the five years from 14 September 2004 was of the order of £10,000 per annum or more, which comfortably exceeds the total amount of basic disablement pension applicable to a 40% assessment, allowance for lowered standard of occupation or unemployability supplement and invalidity benefit in any one of the relevant five years. This would seem reasonable both on the basis that something of the order of £40,000 of the £50,000 past loss of earnings could reasonably have been attributable to the post-service period before the compensation payment was made and also on the basis that the annual amount claimed to have been lost in the early years of the claimant’s assumed post-service career would have been about £100,000 per annum of which it would have been assumed that only 10.39% was recovered.
52. Since £10,000 per annum exceeds the total amount of basic disablement pension applicable to a 40% assessment, unemployability supplement and invalidity benefit in any one of the relevant five years, the total sum to be abated as a result of the compensation received for loss of earnings would simply be the amount of disablement pension payable in respect of a 40% assessment together with the actual amount of allowance for lowered standard of occupation, unemployability supplement and invalidity allowance paid to the claimant during that five-year period.
53. In respect of care costs, the claim in respect of past care was again based on higher costs during the post-service period before the accident and then increased costs later in life. The figures for past and future care calculated above would not be consistent with each other given the amounts claimed, suggesting that in this regard the claim for past care would have been inadequately discounted or the proportion of the claim for future care that was recovered would have been higher than calculated. Taking a broad brush approach, I would estimate the annual value of the sum recovered to be £800, making a total of £4,000 over the relevant five years. Since £800 per annum is less than any standard rate of constant attendance allowance, £4,000 would be the total amount that should be recovered through abatement if constant attendance allowance was paid throughout the five years. An appropriate adjustment would have to be made if constant attendance allowance was not paid during the whole of that period.
54. I would also have considered whether any part of the mobility supplement should be recovered through abatement. However, looking at the report on which the claim for transport costs was based, I would have considered it to be clear that the claimant claimed only for those transport costs he incurred after he had surrendered the mobility supplement under the Motability scheme, so there was not in fact any duplication of payments in this case. It follows that no abatement in respect of the mobility supplement would be appropriate.
55. Thus the total amount of the abatement would be equal to the amount of disablement pension payable in respect of a 40% assessment together with the actual amount of unemployability supplement and invalidity allowance paid to the claimant during the period from 15 September 2004 to 14 September 2009, plus £4,000 (or a reduced amount if constant attendance allowance was not payable throughout that period).
56. As to the rate at which I would consider that the claimant’s war pension should now be abated, the amount already abated would be deducted from the total amount of the abatement calculated above and I would consider that the balance should be recovered through abatement of the claimant’s basic disablement pension at a rate equal to the rate of disablement pension payable in respect of a 40% assessment. That would be roughly what the Secretary of State decided in the first place, but the decision would be more favourable to the claimant because the abatement would not continue for the whole of the claimant’s life as might be expected under the Secretary of State’s calculation. In other circumstances, I might have suggested abatement at a higher rate, which would of course have ended sooner.
57. However, on my approach, the overall effect of the claimant succeeding on his second ground of appeal would be less favourable to him than the First-tier Tribunal’s decision, even if the arithmetical error in the latter were to be corrected. Even my approach were more favourable to him, I ought not to substitute a decision based on my approach for that of the First-tier Tribunal unless I am satisfied that the First-tier Tribunal’s approach was wrong in law. If I consider that its only material error of law was arithmetical, I should do no more than correct that error.
58. As I have already said, the Secretary of State submits that the First-tier Tribunal’s approach was one that was open to it. Given my approach, that submission is actually favourable to the claimant. There are criticisms that I consider can be made of the First-tier Tribunal’s reasoning. For instance, it decided not to abate retrospectively, by which it meant that it decided not to calculate the amount of the abatement by reference to compensation received for past loss of earnings and, at the same time, it decided to restrict the abatement in respect of compensation for loss of earnings to the difference between, on the one hand, the two relevant allowances in the war pension (unemployability supplement and invalidity allowance) and, on the other hand, employment and support allowance so that, at 12 July 2010, the maximum annual abatement of those two allowances could be £940.80. It is arguable that that approach fails adequately to give effect to the purpose behind article 52 because the Secretary of State can never recover more than a fraction of the value of those allowances even if the amount of compensation received by the claimant in respect of loss of earnings greatly exceeds the amount of those allowances. On the other hand, it did decide to abate the basic disablement pension through a separate calculation and it also decided that the abatement should continue for as long as the relevant parts of the award continued. Thus, the overall effect is less unfavourable to the Secretary of State than might appear at first sight.
59. I consider that my approach would better balance the legitimate interests of both the claimant and the Secretary of State and that it would be simpler to administer than the First-tier Tribunal’s approach. However, given the breadth of the discretion conferred by article 52(1), I am not satisfied that the First-tier Tribunal’s approach was unlawful and I therefore confine myself to undoing the effect of the error identified in paragraphs 25 and 26 above.
60. Finally, I conclude by suggesting that, whatever approach the Secretary of State adopts in the future, he should in the event of an appeal provide in his response to the appeal a full explanation of his decision and a complete breakdown, with dates and amounts, of all the elements of war pension that have been paid to the appellant. If he were to adopt my approach, he would also need, before making his own decision, to obtain from the claimant information about the basis upon which the payment of compensation had been made and, if that were not practical, the basis upon which the claim for compensation had been made.
Mark Rowland
14 November 2014
AL v Secretary of State for Defence [2016] UKUT 141 (AAC)
AL v Secretary of State for Defence (WP)
[2016] UKUT 141 (AAC)
CAF/4780/2014
IN THE UPPER TRIBUNAL Case No: CAF/4780/2014
ADMINISTRATIVE APPEALS CHAMBER
DECISION BY THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
The DECISION of the Upper Tribunal is to dismiss the appeal. Though
there are errors of law in the reasons for the First-tier Tribunal’s
decision, I am not satisfied that I should set the decision aside.
REASONS
Introduction
1. This appeal raises an important issue about the nature and extent of the
Medical Adviser’s duties when providing a certificate of entitlement and
assessment pursuant to Article 43 of The Naval, Military and Air Forces
Etc. (Disablement and Death) Service Pensions Order 2006 [“the SPO”],
2. I have concluded that the Medical Adviser’s duties go far wider than
those supposed by the First-tier Tribunal [“the tribunal”] hearing this
appeal. Rather than merely considering the claimed condition and the
medical evidence in order to decide whether to certify that an award
should be made, I find that the Medical Adviser is not restricted to
consideration of the claimed conditions alone. All conditions that appear
to be raised by the claimed disablement and all evidence should always
be considered whether or not these conditions have been expressly
referred to in the claim form. If that consideration gives a reason to
believe there is a further condition relevant to the claimed disablement
for which no claim has been made but which should be investigated
further, the Medical Adviser must not ignore that fact.
3. Even though the tribunal found the certificate of entitlement to be
defective in two respects, it decided that it was not the Medical Adviser’s
role to do anything other than consider the claimed condition and the
medical evidence before deciding whether to certify an award for the
claimed condition. For that reason, it erroneously concluded that there
had been no official error in the certificate.
4. There was a further error of law apparent in the tribunal’s decision. The
appeal concerned itself with the Respondent’s decision on 12 September
2007 to refuse to review the commencement date of an award based
upon a 100% assessment made by a tribunal on 31 March 2004. The
2004 tribunal’s decision was in respect of assessment alone and thus the
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tribunal in the present case was wrong in law to conclude (a) that a
review of the commencement date of the award could only be carried out
if the requirements of Article 44(3) [a relevant change of circumstances]
were satisfied and (b) that it was bound by a tribunal decision in April
2002.
5. Though there are clear errors of law in the tribunal’s decision, I have
decided to exercise my discretion pursuant to section 12(2)(a) of the
Tribunals, Courts and Enforcement Act 2007 not to set the tribunal’s
decision aside. I have taken this course as the decision is the only one
which a tribunal could rationally have reached on the evidence before it.
Background
6. The background to this matter is somewhat convoluted and what follows
is a summary pertinent to this appeal.
7. The Appellant is a former soldier who was discharged from service on 28
July 1999. His initial claim for a war pension was made on 7 February
2000 in respect of the disablement of Post Traumatic Stress Disorder
[PTSD]. On 5 December 2000 the Appellant was awarded a war
pension assessed at 6-14%. This was on the basis of a certificate of
entitlement and assessment dated 1 December 2000 provided by Dr A
which recorded that PTSD was attributable to service. The certificate
recorded that “there is no evidence of psychotic illness”.
8. After a series of review applications and appeals, the award was
increased such that disablement was assessed at 30% from immediately
after discharge, that is, from 29 July 1999. Thereafter the award was
increased to 40% with effect from 22 January 2001 [the 2002 decision]
and 100% with effect from 12 November 2002 [the 2004 decision].
9. The additional disablement of schizophrenia was determined as
attributable to service in July 2002 and thus both the 2002 and 2004
decisions were based on combined assessments of both disablements.
10. On 28 August 2007 the Appellant applied for a review which challenged
the commencement date for the 100% assessment, saying that this
should have applied from 1998/1999. The Respondent disagreed and
the Appellant appealed to a tribunal. This is the decision on review which
was appealed to the Pensions Appeal Tribunal [“PAT”] in 2008 and then
once more to the First-tier Tribunal, the Upper Tribunal having allowed
the Appellant’s appeal against the decision of the PAT on 30 January
2012.
11. The PAT heard the appeal on 27 March 2009 and dismissed it, holding
that there were no grounds made out under Schedule 3, Article 46 of the
SPO 2006 for backdating the 100% assessment to a date earlier than 12
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November 2002. Unfortunately the PAT proceeded on the basis that the
only decision under scrutiny was the 2004 decision and failed to rule on
whether the Respondent ought to have backdated the earlier 40%
assessment in the 2002 decision.
12. Since the time of the appeal to the Upper Tribunal, the Appellant has
challenged the 2007 review decision on the basis that there was an
“official error” in the certificate of entitlement and assessment dated 1
December 2000. Upper Tribunal Judge Pacey had identified this as the
key issue in his direction order of 1 June 2011. He noted that the appeal
turned on whether the original award in 2000 was based on erroneous
medical advice in the certificate from Dr A. This had recorded that there
was no evidence of psychotic illness though Upper Tribunal Judge Pacey
noted that there was medical evidence within the file which referred to
the Appellant suffering from delusions and which it appeared Dr A had
not considered.
13. Permission to appeal to the Upper Tribunal was granted by Upper
Tribunal Judge Pacey on 26 August 2010 and he allowed the appeal on
30 January 2012 on the basis that the PAT had erred in law in failing to
consider whether the 2002 decision should have been backdated. The
appeal was remitted to the First-tier Tribunal for re-hearing.
The Tribunal Decision
14. The First-tier Tribunal considered the appeal on the papers alone as had
been agreed by both parties. On 11 November 2013 it dismissed the
appeal, determining that the commencement dates of both the 2002 and
2004 decisions were correct.
15. The tribunal also held that there had been no official error in the original
decision by reason of the failure to award for schizophrenia based on the
certificate of 1 December 2000. This was despite its findings that Dr A
had been incorrect to state that there was no evidence of psychotic
illness and that he had failed to consider some of the case notes relevant
to the Appellant’s mental health when drawing up the certificate of
entitlement.
16. The reason the tribunal found there was no official error was because the
official error must relate to the claim which had been made. I set out the
relevant parts of the tribunal’s reasoning in full:
“25. We have reviewed all the evidence that the Veterans Agency had on
1 December 2000. There was sufficient evidence of PTSD to satisfy Dr A
on the balance of probabilities that [the Appellant] was suffering from
PTSD – the condition for which he had claimed. There was also some
evidence to suggest that he might have suffered from personality traits
and psychotic symptoms. There was no diagnosis of psychotic illness by
a psychiatric specialist.
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26. We find that Dr A was incorrect to say that there is no evidence of
psychotic illness although we note that he did so in the paragraph in the
certificate relating to assessment. We also find that some of the case
notes received by the Veterans Agency from St Ann’s Hospital on 11
May 2000 were not taken into account by Dr A. We say this because
they are not listed on the reverse of the Certificate dated 1 December
2000.
27. Article 34 of SPO 2006 provides that it is a condition precedent to
making any award of any pension, allowance or supplement that a claim
shall have been made. The exceptions in Article 34(4) and (5) and Article
35 do not apply in this case.
28. The Medical Adviser’s duty is to consider the claim that has been
made. If he makes a clear and obvious mistake in relation to that then
there would be an official error. Where, as in this case, a claim is made
in respect of a well recognised condition the Medical Adviser needs to be
satisfied on the balance of probabilities that the claimant has the claimed
disablement before then considering whether it is attributable to or
aggravated by service.
29. We have considered Hogan Lovells contentions in paragraph 4.3
about the argument that a claim had not been made. We do not consider
the fact that the Appellant has subsequently been granted an award in
respect of schizophrenia which dates from April 2001 is relevant. It arose
out of an application for review lodged in January 2001. The difference
between the January and April dates is the subject of the concession
referred to in paragraph 17 above.
30. The second point made by Hogan Lovells in paragraph 4.3 concerns
misdiagnosis. They rely on paragraph 23 of R(AF) 1/08. In view of our
findings in paragraphs 25 and 28 above we do not consider that any
question of misdiagnosis arises when considering whether there was an
official error in the Certificate dated 1 December 2000. We also consider
that it is for the treating physician to make the diagnosis. The Medical
Adviser considers the claimed condition and the medical evidence to
decide whether to certify that an award should be made for the claimed
condition.
31. It is important to note that in R(AF) 1/08 PTSD was substituted for
Generalised Anxiety Disorder. In this appeal there is no suggestion that
[the Appellant] did not suffer from PTSD but the contention is that he also
suffered from schizophrenia which he had not claimed. Schizophrenia is
a very different mental condition from PTSD and is certainly an
“additional impairment of his body or mind” – see paragraph 23 of R(AF)
1/08.
32…
33. Against the background of a claim for PTSD we find that there was
no requirement to consider other psychiatric conditions and only limited
evidence of a psychotic condition. Thus there was not a clear and
obvious mistake which resulted in the decision refusing entitlement (see
paragraph 20 of R(AF) 1/07).”
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17. The tribunal also dismissed the Appellant’s contention that the
commencement date of the assessment decision of July 2002 should be
backdated. It did so because it held that the Respondent was bound by
the decision of the assessment appeal in April 2002 which substituted
the tribunal’s decision for that of the Respondent in circumstances where
the tribunal was said to have taken account of all of the Appellant’s
psychiatric disablement.
The Appeal to the Upper Tribunal
18. The First-tier Tribunal refused permission to appeal on 1 April 2014. I
granted permission to appeal on 3 December 2014. I identified the
following arguable issues.
19. First, the tribunal may have erred in holding that there was no official
error in the December 2000 certificate and in the original war pension
award in circumstances where Dr A’s assessment was said to have been
based on incomplete medical evidence.
20. Second, the tribunal may have also erred in holding that there was no
onus on the Medical Adviser to consider other psychiatric conditions,
taking into account the nature of the process followed when considering
and determining an application for a war pension. I suggested that that
process was consistent with a more active rather than reactive approach
to the question of entitlement.
21. Third, the tribunal may have erred in finding that there was limited
evidence of a psychotic condition, and hence no clear and obvious
mistake on the part of Dr A, without actually addressing what evidence
there was and why it was said to be limited and not significant.
22. Fourth, the tribunal had in its directions order dated 12 November 2012
raised the point that the commencement date of the 2002 decision had
been set by a decision of the PAT on 12 April 2002. Accordingly the
commencement date of the 2002 decision could only now be changed
on review pursuant to Article 44(3). That would only be possible if there
had been a relevant change of circumstances since the assessment of
decision had been made. The tribunal commented that neither party had
raised this issue at the hearing and accordingly decided that it did not
need to determine this issue. I suggested that this was arguably not the
correct way to proceed where the legal basis for resolving this appeal
may be in doubt.
23. Finally, I suggested that the tribunal should have considered whether or
not to hold an oral hearing even though both parties had agreed to the
matter being determined on paper.
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24. I held an oral hearing of this appeal on 23 February 2016. The Appellant
did not attend, his presence having been excused. Mr Tucker from the
Royal British Legion appeared on the Appellant’s behalf. Mr Adam
Heppinstall of counsel represented the Respondent. I am very grateful to
both representatives for their very helpful written and oral submissions.
25. Accompanying Mr Heppinstall’s submission was a document entitled
“Medical Comment” on the medical issues in this case prepared by Anne
Braidwood, medical adviser to the Secretary of State. I am grateful for
the provision of this material.
The Relevant Legislation and Caselaw
26. Part IV of the SPO is headed “Claims” and Article 34 therein is headed
“Making of Claims”. Article 34(1) states that “it shall be a condition
precedent to the making of any award of any pension, allowance or
supplement mentioned in paragraph 2 … that the person making the
claim shall have (a) completed and signed a form approved by the
Secretary of State for the purpose of claiming that pension, allowance or
supplement payable under this Order and (b) delivered that form to an
appropriate office of the Secretary of state or to an office of an
authorised agent”. However Article 35 provides for certain cases where
claims are not required, for example, a claim for surviving spouse/civil
partner’s pension where the service member died whilst serving in the
armed forces. In this context Article 35(6) states the following:
“Where a claim has been made for retired pay or a disablement pension
under article 6 on the basis of a particular disablement which is alleged
to have been due to an injury which is attributable to or aggravated by
service, no separate claim shall be required in respect of any other
disablement which appears, upon an examination which is conducted by
a medical practitioner before the claim is determined, to have been so
attributable or so aggravated whether due to that or another injury.”
Thus, if Airman X claimed on the basis that he had one sort of injury
attributable to service and, on examination by the doctor instructed for
that purpose, he is also found to have another type of injury attributable
to or aggravated by service, Airman X need not make a separate claim
as normally required by Article 34(1). That interpretation is consistent
with paragraph 55 of MF v Secretary of State for Defence (wP0 [2013]
UKUT 491 (AAC).
27. Part V of the SPO is headed “Adjudication” and Article 43 therein is
entitled “Certification”. This provides that:
“Where any matter is required by this Order to be certified, that matter
shall be determined –
[a] where a Tribunal constituted under the War Pensions (Administrative
Provisions) Act 1919 or the Pensions Appeal Tribunals Act 1943 or
established under the Tribunals, Courts and Enforcement Act 2007 has
given a decision on that matter under those Acts, in accordance with that
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decision or, if an appeal from that decision is brought under those Acts,
in accordance with the decision on that appeal;
[b] where no such decision has been given and the matter involves a
medical question –
[i] in accordance with a certificate on that question of a medical officer or
board of medical officers appointed or recognised by the Secretary of
State,
[ii] In a case where a pension or retired pay was payable in respect of
disablement or death before the commencement of the 1914 World War
or after 30 September 1921 but before 3 September 1939, if a certificate
on that question has been given before 29 July 1996 by a medical officer
or a board of medical officers appointed by the Secretary of State for
Defence, in accordance with that certificate,
[iii] where it appears to the Secretary of State that the medical question
raises a serious doubt or difficulty and he so desires, in accordance with
the opinion thereon obtained from one or more of a panel of independent
medical experts nominated by the President of the Royal College of
Physicians of London, the Royal College of Surgeons of England or the
Royal College of Obstetricians and Gynaecologists.”
28. Article 43 makes plain that, absent a decision of a tribunal, a medical
question may be determined in accordance with a certificate produced by
a medical officer or a board of medical officers appointed by the
Respondent. Thus medical advisers play a pivotal role on matters of
entitlement and assessment under the SPO.
29. Article 46 in Part VI of the SPO is entitled “Commencing dates of
awards” and provides that Schedule 3 has effect in this regard. Pursuant
to paragraph 1(7) of that Schedule, where an award is reviewed as a
result of a decision which arose from official error, the reviewed decision
shall, as a consequence, take effect from the date of the original
decision. Official error is defined in that paragraph as “an error made by
the Secretary of State or any officer of his carrying out functions in
connection with war pensions, defence or foreign or commonwealth
affairs to which no other person materially contributed, including reliance
on erroneous medical advice but excluding any error of law which is only
shown to have been an error by virtue of a subsequent decision of a
court”.
30. The case of R(AF) 5/07 provided guidance on what would constitute
official error in the context of a certificate. Paragraph 20 reads as follows:
“…The question of whether the refusal of an award in 1965 resulted from
official error must be decided on the basis of medical knowledge as it
was at that time. It will not be sufficient to show merely that there was a
misdiagnosis of the appellant’s condition. Applying the standards to be
expected of a reasonably competent medical practitioner in the light of
psychiatric knowledge in 1965, it will be necessary to demonstrate some
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clear and obvious mistake which resulted in the decision refusing
entitlement…”
31. Finally, although Article 44(1) of the SPO permits review of a decision
accepting or rejecting a claim for pension or the assessment of the
degree of disablement at any time on any ground, Article 44(3) provides
that any assessment or decision made by the Pensions Appeal Tribunal,
or the First-tier Tribunal may be reviewed by the Secretary of State at
any time if the Secretary of State is satisfied that there has been a
relevant change of circumstances since the assessment or decision was
made, including any improvement or deterioration in the disablement in
respect of which the assessment was made.
The Arguments of the Parties
32. These can be summarised fairly succinctly. Both parties were in
agreement that the key issue to be considered in this appeal was the
nature and extent of the Medical Adviser’s duties when providing a
certificate of entitlement and assessment. Both agreed that the tribunal’s
belief that diagnosis was a matter for a treating clinician whereas the
Medical Adviser’s role was only to consider the claimed condition and the
medical evidence to decide whether or not to certify that an award should
be made was to misunderstand the nature of the Medical Adviser’s
duties.
33. The Appellant argued that the tribunal’s findings underpinning its
decision were sound, namely that Dr A’s assessment was based on
incomplete papers together with a mistaken conclusion that there was no
evidence of psychotic illness. Thus the tribunal’s conclusion that there
was no official error in December 2000 certificate was unsound in the
light of its own findings. He invited me to conclude that the error of law
was material and to set aside the tribunal’s decision and either to remit
the matter for re-hearing or to remake the decision myself.
34. The Respondent submitted that, despite the tribunal’s mistaken
approach to the role of the Medical Adviser, it made the right decision for
the wrong reasons. He questioned whether Dr A had not in fact seen all
the papers but, in any event, he submitted that Dr A’s conclusions were
not so obviously wrong as to amount to official error having regard to the
test in R(AF) 1/07. He invited me to uphold the tribunal’s decision as the
error was not material. If I decided that the error of law was material, I
should remit this matter to the First-tier Tribunal rather than remake the
decision myself.
35. At the hearing both parties agreed that the tribunal was wrong in law to
conclude in paragraphs 38-40 that a review of the commencement date
of the award could only be carried out if the requirements of Article 44(3)
were satisfied. The Respondent’s 2007 decision refused to review the
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commencement date of the Appellant’s award based on 100%
assessment made by a tribunal on 31 March 2004. It is clear from the
tribunal’s decision that this was an assessment appeal pursuant to
section 5 of the Pensions Appeal Tribunals Act 1943. Jurisdiction to
determine or confirm the commencement date of the award was never
before the tribunal in either 2002 or 2004. Thus the Respondent was
entitled to review the commencement date of the award in 2007 and was
not bound by the requirements of Article 44(3).
Discussion
36. I consider (a) the role of the Medical Adviser; (a) the tribunal’s reasoning
about Dr A’s December 2000 certificate; and (c) whether any error of law
on this issue requires me to set aside the tribunal’s decision.
The Role of the Medical Adviser
37. Though the Secretary of State is the decision maker, Article 43 gives a
prominent role to the Medical Adviser since medical questions requiring
certification are determined by the Secretary of State in accordance with
the Medical Adviser’s certificate. Certification is necessary to secure
entitlement [see Articles 40 and 41] and to establish the degree of
disablement [Article 42]. The basic condition for an award requires a
connection between service and disablement or death. The mere fact
that a condition develops in service does not signify that it is caused or
worsened by service.
38. Thus the Medical Adviser asked to consider a claim is not restricted to
the claimed condition alone. Article 35(6) underscores this as set out in
paragraph 27 above. All conditions that appear to the Adviser to be
raised by the claimed disablement and evidence – whether or not these
conditions have been expressly referred to in the claim form should be
considered. The Respondent made the valid point in this context, that
Medical Advisers are well used to considering medical evidence against
the context of claim forms which, for example, may refer to a condition
which is not the correct diagnosis for the claimant’s condition or which
may omit to refer to a medically recognised condition altogether.
39. The Respondent’s position is that a Medical Adviser asked to review a
claimant’s case should – and in practice, does – always consider the
totality of the medical evidence presented to him or her. If that evidence
gives a reason to believe that there is a further condition relevant to the
claimed disablement for which the claimant has not claimed but which
should be investigated further, the Medical Adviser will not ignore that
evidence. I find that this formulation accords with the manner in which
claims are made under the Scheme and with good clinical practice.
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40. What is the practical effect of that duty? The Medical Adviser’s
responsibility is to consider the claim that has been made. In practice,
where consent is given by a claimant to the Respondent for access to
the claimant’s medical records under the Data Protection Act 1998, that
consent extends only to the medical records required to be reviewed to
determine the condition as claimed.
41. Thus, where a claim is made for one condition alone and the Medical
Adviser takes the view that further closely related condition is also
established on the evidence as existing and attributable to service, the
claim is likely to be granted in respect of both those conditions. The
Respondent submitted that, in such a scenario, it was easy to see how
the original claim could be construed as impliedly including the closely
related (but medically distinct) further condition and/or that the symptoms
expressly complained of required the diagnostic label of that further
condition.
42. However different considerations apply where a claim is made for one
condition and the medical evidence indicates that there is a further
condition likely to be attributable to service but which is completely
unconnected to the claimed condition. The Respondent submitted that
the Medical Adviser would not treat the claim as impliedly encompassing
the second condition and would not consider the second condition as a
matter of diagnostic labelling. Instead the certificate issued would relate
to the claimed condition alone but the claimant would be separately
informed that there was reason to believe s/he may have claim in respect
of the second condition and would be advised to make such a claim. In
any event, the Respondent stated that any medical evidence and records
relating to that second condition would be sought with a further Data
Protection consent to cover that material being obtained from the
claimant.
43. In summary, the Respondent emphasised that the Medical Adviser does
not take a purely reactive role on the basis of the content of the claim
form alone. S/he carries out a full review of the overall medical evidence
and the existence of other conditions which may be attributable to
service is not ignored. The Appellant agreed with that formulation.
44. I accept the above description of the Medical Adviser’s role where
certification is required by the SPO. The process of verifying a claim
requires a claimant to submit him/herself to an examination by a doctor
commissioned on behalf of the Respondent. This examination includes
both a mental health and a physical health assessment. Its conclusions
are written up and the examining doctor gives his/her opinion as to
diagnosis and effect on function of all conditions identified. The Medical
Adviser uses this examination together with the evidence (service
records, medical records etc) in order to determine whether any claimed
or closely related condition is attributable to service and if so, the degree
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of disablement. Where there are two separate conditions which may be
attributable to service but records are available only in relation to one
condition, the Medical Adviser sets in train the process described in
paragraph 42 above.
45. This entire process is entirely consistent with what I described in my
grant of permission as a more active rather than passive approach to
entitlement by the Respondent’s Medical Advisers.
The Tribunal’s Reasoning
46. In this case, I find that the tribunal adopted a misguided approach to the
role of the Medical Adviser. Though it quite properly concluded that the
Medical Adviser’s duty was to consider the claim that had been made
[paragraph 26, Statement of Reasons], its formulation of the Medical
Adviser’s duties in paragraph 30 was overly narrow. Its conclusion in
paragraph 33 that, against the background of a claim for PTSD, the
Medical Adviser was not required to consider other psychiatric conditions
flew in the face of not only the process adopted by the Respondent when
verifying a claim but also the duty imposed on the Respondent by Article
35(6) to consider other disabling conditions where no claim had been
made.
47. The tribunal’s approach was unarguably in error. It allowed it to overlook
the effect of its own findings, namely that Dr A had not taken into account
some of the case notes from St Ann’s Hospital and that he was incorrect
to say that there was no evidence of psychotic illness.
48. Furthermore, the tribunal’s focus was not where Upper Tribunal Judge
Pacey suggested it should have been. His directions order dated 1 June
2011 identified the correct route which the tribunal should have followed.
The relevant part of that order reads as follows:
“…In relation to the question of backdating, this turns upon whether the
award in 2000 was based on “erroneous medical advice”. The advice
concerned is the certificate given in December 2000 by Dr A. He found
that there was an attributable condition of PTSD and said that “there is
no evidence of psychotic illness”. It is not sufficient to say that, in the light
of the subsequent diagnosis of schizophrenia, Dr A gave erroneous
advice. The question is whether on the facts before him his advice was
wrong. I remind myself that in R(AF) 5/07 it was said that “it will not be
sufficient to show merely that there was a misdiagnosis of the claimant’s
condition. Applying the standards to be expected of a reasonably
competent medical practitioner in the light of psychiatric knowledge [at
the time] it will be necessary to demonstrate some clear and obvious
mistake…”
Unfortunately at no stage did the tribunal apply this test to the material
before it. The reason it found that there was no official error was because
it held that the official error must relate to the claim which had been
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made, namely PTSD. Other conditions unclaimed for but present which
may have been attributable to service could thus, in the tribunal’s
analysis, be disregarded when considering if there had been official
error.
49. For all the above reasons, I find that the tribunal erred in law in its
approach to this issue. Even if that is so, I must then consider whether
that error is material to the outcome of this appeal.
What Next
50. The Respondent submitted that, notwithstanding the above error of law,
the decision reached by the tribunal was the only one which it could
rationally have reached on the evidence before it, applying the test for
official error set out in Upper Tribunal Judge Pacey’s directions. He
invited me not to set the tribunal’s decision aside but to uphold it.
51. In contrast the Appellant said that the tribunal’s decision should be set
aside and I was invited either to remake the decision or to remit the
matter to the First-tier Tribunal for re-hearing.
52. Under section 12(2)(a) of the Tribunals, Courts and Enforcement Act
2007 the Upper Tribunal may (but need not) set aside the decision of the
First-tier Tribunal where the decision under appeal involved the making
of an error on a point of law. This is a discretionary power as section
12(2)(a) makes clear. If the tribunal’s decision is set aside, section 12(2)
(b) empowers me either to remit the matter to the First-tier Tribunal with
direction for its reconsideration or to remake the decision myself.
53. I approach the exercise of my discretion whether or not to set aside the
tribunal’s decision having regard to the well-established principle that it is
the impact of an error of law on the outcome of the proceedings which is
key. Errors of law which would have made no difference to the outcome
would not justify setting aside the tribunal’s decision. Lord Neuberger in
Holmes-Moorhouse v Richmond upon Thames London Borough Council
[2009] UKHL 7 set out some of the ways in which a decision could
survive an error in the tribunal’s reasoning: these include (a) where the
decision is irrelevant to the outcome; (b) where there is more than one
reason for the conclusion and error only undermines one of the reasons;
and (c) where the decision is the only one could rationally have been
reached [see paragraph 51 of that decision].
54. After careful thought I have come to the conclusion that the tribunal’s
decision that there was no official error on the certificate of entitlement
was the only decision which a tribunal could rationally have reached. In
coming to that view I have had in mind the test for official error which the
tribunal should have applied but did not.
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55. Was Dr A’s certification on the facts before him clearly and obviously
mistaken, applying the standards of a reasonably competent medical
practitioner in the light of psychiatric knowledge at the time? That might
be so if he failed to consider relevant medical or other information. In this
case the tribunal found that he had not taken into account some of the
case notes from St Ann’s Hospital as they were not listed on the reverse
of the certificate. It is unfortunate that the tribunal did not explain what
was of relevance in that material in respect of other possible psychiatric
conditions from which the Appellant might have been suffering at the
time he left service.
56. I have considered what in that missing material was of relevance and the
key relevant document is a letter from a chartered psychologist to the
Appellant’s doctor dated 28 October 1999. It made reference to the
Appellant hearing a voice persistently telling him to harm or kill someone.
The psychologist suggested that a psychiatric referral made by the
Appellant’s GP might be appropriate. The notes of the Appellant’s
meeting with the psychologist on 28 October 1999 also make reference
to a fear of schizophrenia and the Appellant “seeing black shapes out”. It
is however noteworthy that the Appellant was discharged by the
chartered psychologist on 11 February 2000 without there being any
suggestion that the Appellant at that time continued to suffer from
psychotic phenomena such as hearing voices. On the contrary, the
Appellant - and to some extent the psychologist as the decision to
discharge showed - perceived the severity of his mental health difficulties
to be greatly reduced. The records from St Ann’s Hospital concluded on
11 February 2000.
57. Though this material was not before Dr A as it post-dated the certificate,
the medical records after December 2000 show considerable uncertainty
about the cause of the Appellant’s mental health problems. I note that in
July 2001 there was no diagnosis of schizophrenia despite the Appellant
having had low mood and psychotic symptoms and being under the care
of the Community Mental Health Team [page 138]. A firm diagnosis of
schizophrenic illness was not made until March 2002 [page 166].
58. The Appellant had an undisputed diagnosis of Post Traumatic Stress
Disorder which Dr A accepted as attributable to service. However Dr A
concluded that there was no evidence of psychotic illness in December
2000. It is important to place that conclusion in the context of the
analysis contained in the certificate which reads as follows:
“The diagnostic label is based on the totality of the evidence.
Notwithstanding the various psychiatric opinions, on balance of
probabilities, the diagnosis is appropriate and sufficient diagnostic criteria
are met. He may well have some abnormal personality traits but these
make him vulnerable and are not the sole cause of his present problems.
Service factors cannot be excluded from the aetiology hence attributable
to service. Panic attacks and nightmares are part and parcel. The
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evidence shows that he is coming to terms with his psychological
problems and has good insight. There is no evidence pf psychotic illness.
Subjective and objective distress is greatly diminished and he is
functioning well in terms of work, social and personal matters…”
59. Dr Braidwood ‘s medical comment stated that she believed Dr A’s
approach represented a reasoned and reasonable medical judgement
and the evidence considered was adequate and properly used to inform
the findings. Given the undoubted problems in accurately diagnosing
mental health disorders, Dr Braidwood thought it highly unlikely that
another doctor could have come to a different conclusion and accepted
the presence of a psychotic disorder, far less schizophrenia specifically
[page 659].
60. Did Dr A discharge the duties of a Medical Adviser described earlier in
this decision? Though the Respondent sought to argue that Dr A had in
fact seen all the medical records including those from St Ann’s Hospital, I
was not persuaded by that submission. Dr A carefully recorded on the
reverse of his certificate the evidence on which it was based and it is
clear to me that he had not seen the relevant St Ann’s Hospital records. I
do not know why that was since his analysis of the Appellant’s mental
health difficulties was otherwise insightful and comprehensive. I accept
Dr Braidwood’s evidence that the fact that Dr A expressly discounted
evidence of psychotic illness indicated that he had gone beyond the strict
and narrow terms of the Appellant’s claim. The reference to psychotic
illness was based on medical records in 1997 which recorded a GP
opinion that the Appellant had “delusions” about a bomb under a car. I
ntoe that the Appellant was seen within a week by a consultant
psychiatrist who had previously assessed him. On examination the
“delusions” were found to be not the Appellant’s beliefs but those of a
girlfriend which the appellant had not sought to verify. There was no
diagnosis of psychotic illness made at that time or indeed at any time
whilst the Appellant remained in service.
61. Accepting the tribunal’s finding that Dr A did not take account of some
medical records – records which may have been of relevance - I have
concluded that the material contained in those records would have made
no difference to Dr A’s assessment of the Appellant’s mental health
problems. Nothing in the notes from St Ann’s Hospital could have
supported a diagnosis of schizophrenia in December 2000 or earlier or
indeed formed a basis to suspect the presence of an enduring psychotic
illness at those times. Whilst the Appellant had clearly suffered some
psychotic symptoms in the past, the presence of these symptoms was
not diagnostic of a psychotic illness let alone schizophrenia as illustrated
by the subsequent medical history in July 2001.
62. Applying the test set for official error set out in Upper Tribunal Judge
Pacey’s directions, I have come to the conclusion that this was not made
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out. The tribunal’s decision was correct. That decision was the only
rational decision on all the evidence which a tribunal could have reached.
63. For all the above reasons, I have concluded that the tribunal’s decision
on the issue of Dr A’s Certificate can survive despite the errors of
reasoning which supported it and I exercise my discretion not to set
aside the tribunal’s decision.
Additional Issue: Article 44(3)
64. Both parties were in agreement at the hearing before me that the tribunal
had erroneously concluded that a review of the commencement date of
the award could only be carried out if there had been a relevant change
of circumstances as required by Article 44(3). I accept that submission.
65. The appeal before the tribunal was against the decision of the Secretary
of State dated 12 September 2007 which refused to review the
commencement date of an award based on a 100% assessment made
by a tribunal on 31 March 2004. That tribunal could not have either
confirmed or determined the commencement date of the assessment as
the appeal before them was confined to assessment issues pursuant to
section 5 of the Pensions Appeal Tribunals Act 1943.
66. Jurisdiction to determine or confirm the commencement date of an award
is conferred on tribunals by section 5A of the Pension Appeal Tribunals
Act. Article 46 and Schedule 3 of the SPO make provisions for the
commencement dates of awards. In paragraph 24 of R(AF) 1/08 Upper
Tribunal Judge Bano stated that, in cases where entitlement to
backdating depends on the valid review of an earlier decision, it may be
necessary to consider whether there is any statutory impediment to the
exercise of the review power such as that contained in Article 44(3)
(namely a relevant change of circumstances which is necessary before
there can be a review by the Secretary of State of a tribunal’s decision or
assessment).
67. In its decision the tribunal concluded in paragraph 38 that there could be
no backdating on the grounds of official error because of the assessment
appeal heard on 12 April 2002. It stated that this was because the
decision took into account all of the Appellant’s psychiatric problems “see
the reference to the Secretary of State’s decision dated 26 October
2001, the certificate for which made clear that all psychiatric disablement
had been accepted”.
68. I have come to the view that the tribunal erred in law in considering itself
bound by this decision. First, the appeal was an assessment appeal
[page 153] and thus confined to assessment issues alone. Second there
is no reference in the tribunal’s reasons to a decision by the Secretary of
State dated 26 October 2001 in which all psychiatric disablement was
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accepted. Third, it is certainly not apparent from the short paragraph
outlining the facts found by the tribunal that the tribunal took into account
all of the Appellant’s psychiatric disablement.
69. In paragraph 39 the tribunal further held that the commencement date
was set because of the April 2002 tribunal. That is incorrect for the
reasons spelled out above. However the tribunal went on to state rather
confusingly that, because neither party had raised the issue of whether
Article 44(3) applied, the tribunal did not need to consider it. I find the
tribunal’s reasoning difficult to follow. It found there was an impediment
to backdating by reason of a tribunal decision dated 12 April 2002 but
then seemed to suggest that it need not consider that aspect of this
appeal as the parties had not done so. I note that the tribunal had itself
raised the issue of backdating and the effect of Article 44(3) in its own
directions order dated 20 November 2012. Whether or not the parties
had addressed this issue, I consider that the tribunal had a responsibility
to address it if it thought this issue of jurisdiction was significant.
70. In conclusion the tribunal erred by believing that earlier decisions
inhibited it from backdating the commencement of the award for
schizophrenia to 29 July 1999. Does this mean that I should set its
decision aside? I have concluded that I should not as this error does not
affect the outcome in the light of my conclusions about Dr A’s certificate.
Paper versus Oral Hearing
71. I did not invite submissions on this issue at the hearing as it seemed to
me to be relatively insignificant in comparison to the main ground of
appeal. It is not necessary for me to express a view on this issue given
my overall conclusions on this appeal.
Conclusion
72. Though the tribunal erred in law on two issues, its decision survives this
appeal for the reasons I have given.
Gwynneth Knowles QC
Judge of the Upper Tribunal
11 March 2016.
[signed on original as dated]
16
AM v Secretary of State for Defence (WP) [2013] UKUT 097 (AAC) CAF/1279/2011
AM v Secretary of State for Defence (WP) [2013] UKUT 97 (AAC) (21 February 2013)
War pensions and armed forces compensation
War pensions - assessment
IN THE UPPER TRIBUNAL Case No. CAF/1279/2011
ADMINISTRATIVE APPEALS CHAMBER
Before Upper Tribunal Judge Rowland
Decision: The claimant’s appeal is allowed. The decision of the First-tier Tribunal dated 16 March 2011 is set aside and the case is remitted to a differently constituted panel for determination.
REASONS FOR DECISION
1. This is an appeal brought by the claimant with the permission of the President of the War Pensions and Armed Forces Compensation Chamber of the First-tier Tribunal, against a decision of that tribunal whereby it reduced an interim assessment of 70% made by the Secretary of State in respect of bilateral chondromalacia patellae, lumbar spondylosis, injury left shoulder (1978) and left supraspinatus tendinitis and substituted an interim assessment of 50% in respect of those conditions.
2. The claimant served in the Army from 1970 to 1984 and subsequently claimed disablement benefit under the predecessor of the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 2006 (SI 2006/606). The claim seems to have been made in 1994.
3. It was accepted that the claimant suffered from bilateral noise induced hearing loss, attributable to service, but the resulting disablement was assessed at 1-5% from 20 June 1994 to 25 July 2005, at 6-14% from 26 July 2005 to 31 May 2007 and again at 6-14% from 1 June 2007 on a final assessment of indefinite duration, which meant that the condition was not tbe taken into account in assessing the claimant’s total degree of disablement (see article 42(4) of the 2006 Order).
4. However, it was also accepted in 1994 that the claimant suffered from bilateral chondromalacia patellae, attributable to service, disablement from which was assessed at 20% from 20 June 1994 to 25 July 2005 and from 26 July 2005 to 31 May 2007, the latter assessment being upheld by a pensions appeal tribunal. In 2007, it was accepted that he also suffered from lumbar spondylosis, aggravated by service, and an injury to his left shoulder (1978) and left supraspinatus tendinitis, both attributable to service. A composite assessment of disablement of 50% was made from 1 June 2007 to 1 July 2008, and composite assessments of 70% were made from 2 July 2008 to 27 April 2009, from 28 August 2009 to 23 February 2010. from 24 February 2010 to 18 May 2010 and, on 2 December 2010, from 19 May 2010 on an interim long term assessment. An award of mobility supplement was made following an examination on 24 May 2010, but I am not sure from what date.
5. It was against the assessment decision dated 2 December 2010 that the claimant appealed to the First-tier Tribunal.
6. He also appealed against a decision given at the same time to the effect that that “soft-tissue injury to lumbo-sacral spine (2010)” was neither attributable to, nor aggravated by, service. I need not consider whether that was properly regarded as a separate “entitlement” appeal. It was conceded during the course of the hearing before the First-tier Tribunal that “soft-tissue injury” should be regarded as “part and parcel” of lumbar spondylosis, but it was also asserted on behalf of the Secretary of State that all back disability had already been included in the existing assessment. On that basis, the “entitlement” appeal seems to have been unnecessary if it was not actually invalid.
7. In relation to the assessment, the First-tier Tribunal said –
“3. The Tribunal had before it the submission papers for the Assessment Appeal and the oral evidence of the appellant. The Tribunal thanks the appellant for the direct and clear oral evidence that he gave the Tribunal. The Tribunal relied on that oral evidence for reaching its decision recited at paragraph 12 below.
4. The appellant was warned by the Tribunal at the start of proceedings that the Tribunal is required to consider on an assessment appeal whether to maintain, increase, or reduce an assessment under appeal before the Tribunal. The appellant was not represented but he has himself the experience of previous appeals before Tribunals including an assessment appeal in which the assessment was reduced. The appellant confirmed that he understood and wished to continue with his appeal. The appeal proceeded as an entirely fresh hearing based only on the paper and oral evidence before it.
5. The appellant told the Tribunal that his worst problems were his lumbar spondylosis and his injury left shoulder attributed condition. The act of reaching with his left shoulder was painful. Lifting a weight was also painful. Few details were provided to the Tribunal of the limits to reaching and weight lifting experienced by the appellant and the Tribunal drew its conclusions from the over all totality of the paper and oral evidence together with its observations of the appellant during the hearing. These observations were put to the appellant during the hearing. The limit to the function of lifting put to the Tribunal was that he could not lift a bag of household table sugar. The appellant said that pain killers took away "the edge" of experienced pain. The appellant chooses not to take painkillers on a daily basis. The appellant has not taken up suggestions of a referral to a pain clinic. He is awaiting further medical advice about possible angina and the effects of any interaction between medication and pain management where angina is also present. He has had physiotherapy and a shoulder injection. The appellant said that his shoulder was "useless" but this is inconsistent with the observations of the Tribunal. The appellant demonstrated upper limb and torso facility and fluidity inconsistent with such a high level of incapacity. The appellant lifted and handled case papers. He handed a bundle of papers to his attending carer, (his niece), with forward and straight bilateral arm movements. The appellant extended his left arm forwards across the table at the venue and then diagonally across his chest with deft and fluid movements. He made rapid arm gestures and leant on his left arm on the table.
6. The appellant told the Tribunal that he has back pain that radiates to both legs. His G.P. refers to back problems at (37). The appellant told the Tribunal that his niece is on 24 hour call out in case he has problems with his back. On one occasion he became stuck on the bathroom floor with a back spasm. The appellant has started to use a walking stick from about a month before the hearing on 16.03.2011. He confirmed that his back problems remained about the same as at during or about the time of the decision appealed against. The Tribunal did take into account the reference in the War Pension — Review Consideration — Assessment at (2) to deterioration but clearly, in the light of what the appellant said to the Tribunal, such deterioration was insufficient to be material to the Tribunal decision.. The appellant told the Tribunal that he can walk 50 to 75 metres before he needs to stop because of pain. The appellant drives a vehicle himself for short journeys. He was driven to the venue on a 1.5 hour journey from Carlisle. He sat for this journey without a stop. The appellant sat during the hearing from 13.40 p.m. to 14.45 p.m. The appellant then stood up. He then sat from just after 14.45 until 15.35 p.m. He had walked about 75 metres from the car park to the venue reception, and then from there along a lengthy corridor to the hearing room. He said this was a slow and painful process however he was observed to walk smartly into the hearing room and to sit upright. He told the Tribunal that he does not use public transport because he is unsafe on his feet. The appellant finds stairs difficult. He has greater difficulty going downstairs than upstairs. He goes to a local shop about 150 metres away and stops once on the way. He supermarket -shops on a Wednesday each week together with his niece. He can deal with his own I laundry but his niece does the ironing. He can hoover with a cylinder hoover.
The appellant confirmed that he washes and shaves himself. He can shower with an over the bath shower and he can dry himself afterwards. He does not need help with getting over the bath for this purpose. He prepares adequate meals for himself short of preparing a full roast.
The appellant stated that his sleep was disturbed but particularly singled- out non-accepted COPD as being a cause.
The appellant did not display depressive features typical of many appellants with 70% assessed disability and depression was not claimed by the appellant to be contributory to disturbed sleep. The appellant rotated his torso whilst sitting and he leant back and forth with apparent ease. On occasion he put both arms behind his back and placed his hands on his waistline.
7. Other medical conditions referred to by the appellant included angina. However at the time of the hearing the only diagnosis as such was non specific chest pain. He referred to COPD but again there is not evidence of a confirmed diagnosis. Neither conditions are attributed conditions. The appellant said that he had been to A & E on 12 occasions during 2010 because of falls. There is no musculo/skeletal or neurological medical evidence before the Tribunal to explain why the appellant should be so prone to falls.
8. The appellant told the Tribunal that he does not go to work "because of all the problems that I have had". The observations of the appellant's movements and functioning recited above were put to the appellant to invite his comments. In response he told the Tribunal that he was having a good day on the occasion of the hearing and that his medication was working. He said that he had no choice but to sit for the duration of the hearing (and by implication for the journey to and from Carlisle). He said that he has a high tolerance to pain and that he can adapt. The Tribunal took into account that on other days the appellant might be less functional but it concluded that, on the basis of the totality of the evidence, the appellant would be unlikely on "bad days" to be materially less able to function than the level apparent on the day of the hearing.
10. In carrying out its duty to arrive at a fair and proportionate decision based on the evidence obtained within the context of an inquisitorial process the Tribunal also paid regard to the maxim of Carnwath L.J. in [2009] EWCA Civ 1043. He referred to the Armed Forces Compensation Scheme as "....a practical scheme intended to work broad justice". That maxim is equally applicable to the SPO even though the instant SPO assessment appeal is based on very different facts.
11. The Tribunal of three members is unanimous in concluding that the appellant is fully assessed at 50% as at the date of the decision appealed against by reference to the appellant's level of functionality and medical circumstances as applied to Article 42.
The Tribunal is aware that this will be a disappointment to the appellant however the interests of justice require a fair, evidence- based, correctly balanced decision to be made.
12. The decision is that the appellant is assessed at 50% from 02.12.2010 to 15.03.2013. The assessment of 50% is a composite assessment for all the attributed conditions. It is not necessary for the Tribunal to apportion assessments between the attributed conditions.”
8. The claimant sought permission to appeal on the grounds that the First-tier Tribunal had failed to refer to the medical boards’ findings and failed to record sufficient findings of fact. The President of the War Pensions and Armed Forces Compensation Chamber of the First-tier Tribunal granted permission to appeal –
“… because I consider it arguable that the tribunal did not attempt to carry out a sufficiently systematic assessment of disablement in accordance with article 42(2)(a) of the Service Pensions Order 2006.”
That seems to be much the same point. The question is whether the First-tier Tribunal has given adequate reasons for its decision.
9. The Secretary of State resists the appeal. It is submitted that the observations recorded by the First-tier Tribunal “do not concur with the various board reports”, which it is submitted “depended largely on his self reporting and performance on the day”. It is also submitted that “[t]he tribunal’s observations, radiological evidence, nature of the disablements and employment history (he drove coaches until 2005) cast some doubt as to whether there is significant overlap and double counting in terms of his back and lower limb function”. In particular, it is observed that there is no more specific diagnosis in respect of the claimant’s knees than chondromalacia patellae, which merely means “pain in the knees”.
10. In his reply, the claimant points out that, although a previous assessment (presumably that from 28 August 2009) had been reduced to 50% by the First-tier Tribunal on 28 January 2010, the decision of the First-tier Tribunal had itself been set aside on review under section 9 of the Tribunals, Courts and Enforcement Act 2007 and subsequently the Secretary of State had made it clear that he was defending an assessment of 70%, rather than 50%. The fresh hearing of that case had apparently not taken place by the time of the hearing in the current case. I am not sure what the current position is. It is not clear why the cases were not listed together. Now the Secretary of State appears to be taking a different approach and to support an assessment of 50%.
11. There is some force in the Secretary of State’s points.
12. However. it can be said that the First-tier Tribunal’s observations “depended largely on … performance on the day” in just the same way that the various medical officers’ – strictly speaking, a single medical officer does not constitute a “board” (see article 43(b)(i)) – observations and clinical findings would have done and, although the medical officers did record a considerable amount of what the claimant said, medical officers are also expected to record informally “observed activities” and take account of them in making their assessments. It is noteworthy that, although the First-tier Tribunal observed the claimant sitting without apparent discomfort for long periods, the medical officer who examined him on 17 June 2009 observed him sitting on a chair “with obvious discomfort” (doc 19A), although it is fair to say that no such discomfort was recorded as having been observed on 8 October 2010 (doc 47A). Moreover, the medical officers also recorded clinical findings made after physical examination, which might be expected to be reasonably objective.
13. In any event, the greater difficulty with the Secretary of State’s case is that the reasons now suggested by the Secretary of State in support of the First-tier Tribunal’s decision were not reasons either expressly given by the First-tier Tribunal or necessarily to be inferred from its decision. The first question that arises on an appeal to the Upper Tribunal is whether the decision of the First-tier Tribunal is wrong in law. A tribunal errs in law if it fails to give adequate reasons for its decision, even if the decision it gave may have been correct. Inadequate reasons may not matter if the tribunal reached the only decision open to it, but that cannot be said in this case. The Secretary of State’s arguments may be relevant to the question of what decision should be substituted for the First-tier Tribunal’s decision if it is set aside because it is wrong in law, but I do not consider them to be relevant to the question whether the decision is wrong in law.
14. The First-tier Tribunal has given ample reasons for not entirely accepting all that the claimant said. It found him able to do some things that he had suggested that he could not do. However, given that it accepted that the claimant’s abilities were limited, if it did not accept they were as limited as he said, they needed to make their own findings as to how limited they were. I appreciate that it is not possible to be precise about such matters. However, there were two obvious issues in this case. The first was the extent of the claimant’s ability to lift and carry things. The First-tier Tribunal rejected the suggestion that the claimant could not lift a bag of sugar. Interestingly, that suggestion appears only in the judge’s note of evidence. Both the other members record him as saying that he could not lift a carrier bag full of shopping. He may well have said both things, but the First-tier Tribunal made no finding as to his ability to lift a carrier bag full of shopping. The other similar issue is concerned with his ability to walk. It is not entirely clear whether the statement “He goes to a local shop about 150 metres away and stops once on the way.” Is a recitation of the evidence or a finding of fact. If the former, the First-tier Tribunal has not made any finding as to the limits of the claimant’s ability to walk. If the latter, which would not be inconsistent with its observations, the First-tier Tribunal’s assessment of disablement may have required more explanation.
15. As far as the 2006 Order goes, the First-tier Tribunal was right in saying that it is not necessary to apportion a composite assessment of disablement between the relevant conditions. However, it may be important to make assessments in respect of individual elements of a composite assessment in order adequately to explain the composite assessment. Quite a lot can be implied from the apportionment in any particular case and, by the same token, the exercise of apportioning the overall disablement between the relevant conditions can help to focus the medical officer’s or tribunal’s mind on the proper relationship between the conditions and the correctness of its overall assessment.
16. In assessing disablement, it is important to remember that 100% represents the degree of disablement necessary for receipt of the maximum amount of disablement pension, described in article 42(5) of the 2006 Order as “total disablement” but actually less than that because Part V of Schedule 1 to the Order makes it clear that very severe, but less than total, disablement attracts an assessment of 100%.
17. It is also important to remember that disabilities may interact or overlap with each other so that a composite assessment may be either greater than, or less than, the sum of the assessments that would be made in respect of the individual conditions were they to be assessed separately, as is recognised in Part V of Schedule 1. Thus, for instance, the loss of two eyes is obviously more than twice as disabling as the loss of one eye. On the other hand, the additional effect of a condition that affects a part of the body that has already been affected by another condition may be less than the effect of the first condition alone would be. Moreover, individual assessments of 20% or more must be certified as a percentage which is a multiple of 10 (article 42(5)) which may involve an element of rounding up and assessments of less than 20% are usually expressed as assessments of 1-5%, 6-14% or 15-19% and this practice is generally applied to the assessments of individual conditions in respect of which a composite assessment is made. Adding together assessments that might more precisely have been expressed at the lower end of the range covered by figures for the individual assessments may well produce a total assessment of less than the total of the figures for the individual assessments.
18. It is not compulsory to make an assessment in respect of disablement that is not due to service, but doing so may again help to explain a decision, because it will show what proportion of a claimant’s disablement has been accepted as due to service. Moreover, it is important to remember that, because a 100% assessment does not in fact represent total disablement, the fact that a claimant is suffering from a disabling condition that is not due to service does not necessarily have the effect that the assessment of disablement due to service must be less than 100%.
19. Part V of Schedule 1 also provides useful comparators, enabling medical officers and the First-tier Tribunal to carry out a quick reality check of an assessment by asking themselves whether, taken in the round, the claimant in any particular cases is more disabled or less disabled that a person suffering from one of the injuries in respect of which an assessment of the same percentage is prescribed.
20. In the present case, the Secretary of State’s composite assessment of 70% was based on assessments of 30% in respect of the chondromalacia patellae, 20% in respect of the lumbar spondylosis and 20% in respect of both the injury to the left shoulder and the left supraspinatus tendinitis, which were presumably considered broadly to affect the same part of the body. Doc 90, which appears to show the assessment made by the First-tier Tribunal on 28 January 2010 (mentioned in paragraph 10) shows a composite assessment of 50% where 30% was the assessment in respect of the chondromalacia patellae, 6-14% was the assessment in respect of the lumbar spondylosis (including pain in both hips regarded as part and parcel of that condition) and 20% was the assessment in respect of both the injury to the left shoulder and the left supraspinatus tendinitis. I do not know what the reasoning behind that assessment was, because a copy of the First-tier tribunal’s decision has not been included in the documents before me, but the composite assessment would be consistent with a view either that two or all three of the individual assessments were at the lower range covered by the figures for those individual assessments or that the assessment in respect of the lumbar spondylosis should be treated as substantially overlapping with the assessment in respect of chondromalacia patellae.
21. One can see from the First-tier Tribunal’s decision that it regarded the Secretary of State’s composite assessment as too high, but the lack of findings and the lack of any explanation of the weight attributed to the different conditions in reaching the First-tier Tribunal’s composite assessment makes it impossible to say whether or not it the composite assessment was reasonable and was reached in accordance with the law. It may well have been both reasonable and lawful, but that is by no means clear and the claimant is entitled to reasons that did make it clear. This is particularly the case where, as here, the First-tier Tribunal has made an assessment that is lower than that made by medical officers on four occasions.
22. I agree with the Chamber President that a systematic assessment was required in this case. It was important to make findings as to the claimant’s loss of mobility because very limited mobility itself justifies a substantial assessment, whether it was attributable in this case to the pain in the knees, the chondromalacia patellae, or to the pain in the hips due to the lumbar spondylosis. The lumbar spondylosis was said not merely to cause loss of mobility but also to cause discomfort when at rest and, unless that assertion was wholly rejected, would justify some additional assessment of disablement. The shoulder injury and tendinitis together give rise to entirely separate disablement. The rejection of the claimant’s assertion that he could not lift a bag of sugar is insufficient to explain how disabled the claimant was and it is impossible to tell from its decision whether the First-tier Tribunal thought the claimant had been over-assessed at 20% in respect of his inability to reach and lift or not.
23. I am therefore satisfied that the First-tier Tribunal’s decision is erroneous in point of law. The lack of findings makes it impossible for me to substitute my own assessment without an oral hearing and such an assessment would in any event be far more appropriately made by the First-tier Tribunal. Accordingly, I remit the case to the First-tier Tribunal. If there is still another outstanding assessment appeal before the First-tier Tribunal, consideration should be given to the cases being heard together.
Mark Rowland
21 February 2013
AM v Secretary of State for Work and Pensions (ESA) [2013] UKUT 0563 (AAC) Bailii, judgment
DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
The DECISION of the Upper Tribunal is to allow the appeal by the Appellant.
The decision of the Birmingham First-tier Tribunal dated 02 November 2012 under file reference SC024/12/05209 involves an error on a point of law. The First-tier Tribunal’s decision is set aside.
The Upper Tribunal is not in a position to re-make the decision under appeal. It therefore follows that the Appellant’s appeal against the Secretary of State’s decision dated 16 February 2012 is remitted to be re-heard by a different First-tier Tribunal, subject to the Directions below.
This decision is given under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007.
DIRECTIONS
The following directions apply to the hearing:
(1) The appeal should be considered at an oral hearing.
(2) The new First-tier Tribunal should not involve the tribunal judge or medical member who was previously been involved in considering this appeal on 02 November 2012.
(3) The Appellant is reminded that the tribunal can only deal with the appeal, including his health and other circumstances, as they were at the date of the original decision by the Secretary of State under appeal (namely 16 February 2012).
(4) If the Appellant has any further written evidence to put before the tribunal, in particular medical evidence, this should be sent to the tribunal office in Birmingham within one month of the issue of this decision. Any such further evidence will have to relate to the circumstances as they were at the date of the original decision of the Secretary of State under appeal (see Direction (3) above).
(5) The District Tribunal Judge responsible for re-listing may wish to consider making a request to the Appellant’s GP for copies of medical notes for the relevant period – see further paragraphs [13] & [14] below.
(6) The new First-tier Tribunal is not bound in any way by the decision of the previous tribunal. Depending on the findings of fact it makes, the new tribunal may reach the same or a different outcome to the previous tribunal.
These Directions may be supplemented by later directions by a Tribunal Judge in the Social Entitlement Chamber of the First-tier Tribunal.
REASONS FOR DECISION
The importance of dealing with cases fairly and justly
1. The First-tier Tribunal inevitably has to make case management decisions (e.g. whether to adjourn) “on the hoof”. The Upper Tribunal recognises that the First-tier Tribunal has a wide discretion in making such a decision. The First-tier Tribunal has the advantage of seeing, hearing or reading the evidence at first hand and in context. So it is only if the First-tier Tribunal’s case management decision is wholly unreasonable that the Upper Tribunal will intervene.
2. In making such case management decisions, the First-tier Tribunal must have regard to the overriding objective of dealing with cases fairly and justly (see rule 2(1) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Regulations 2008 (SI 2008/2685)). That consideration includes taking into account a range of factors, some of which are specified in rule 2(2), e.g. ensuring, so far as possible that the parties can participate and avoiding delay, so far as is compatible with proper consideration of the issues.
3. The present case, unfortunately, is one where the First-tier Tribunal lost sight of the overriding objective.
The incident at the oral hearing before the First-tier Tribunal
4. The incident in question is described in unpleasantly graphic detail at paragraph 4 of the tribunal’s extensive statement of reasons:
“4. At the hearing, the Appellant was retching and vomiting into a bin bag which had been provided by the staff at the tribunal venue. He indicated that he wished to be present to give evidence, and was able to do so, in a limited fashion, in between episodes of retching. However, after 10 minutes, it appeared that his episodes of retching and vomiting were not reducing, and the tribunal decided that it did not require to ask any further questions of the Appellant, and informed him of this. He left his papers on the table in the tribunal room and departed. The tribunal considered that it had sufficient information to make a decision.”
5. The tribunal’s record of proceedings confirms that the hearing lasted from 11.20 to 11.30. The tribunal judge’s single sheet of notes starts “Came in vomiting into a bin bag. Had been vomiting since arrival. Pale + slim. ‘I’ve been like this for a year’” and ended “We stopped after 10 mins – he was retching into bin bag. He sd he had to phone his brother to come and collect him.”
The First-tier Tribunal’s decision
6. The First-tier Tribunal dismissed the Appellant’s appeal against the refusal of his claim to employment and support allowance (ESA). The tribunal found that he scored nil points on the work capability assessment and did not satisfy regulation 29 (“exceptional circumstances”). In many respects there is much to commend the tribunal’s statement of reasons. It runs to over six pages of text and carefully analyses the evidence in relation to the various descriptors in the ESA Regulations in some detail (whether it dealt adequately with regulation 29 is a moot point, but need not be pursued here).
The reason why the First-tier Tribunal erred in law
7. The error of law in the first-tier Tribunal’s decision is that whether or not justice was actually done on the substantive merits of the appeal, it was certainly not seen to be done. Indeed, I am surprised that a District Tribunal Judge, rather than refusing permission to appeal, did not simply set aside the tribunal’s decision for a procedural irregularity and direct a re-hearing.
8. The Appellant’s then representative’s first ground of appeal was quite simple: there had been a breach of natural justice in that the Appellant “was forced through ill-health to leave the Tribunal after ten minutes and the Tribunal continued without him… The Appellant says that he had not finished giving his evidence.” On that basis I gave permission to appeal to the Upper Tribunal, noting that there was no indication on file that the tribunal had considered whether to adjourn the hearing.
9. Mrs Frances Gigg, for the Secretary of State, supports the Appellant’s appeal. I can do no better than quote the substance of her submission:
“I agree with the Upper Tribunal Judge’s suggestion that the tribunal should have recorded that they expressly considered an adjournment when the claimant left the hearing. They may have felt that they had sufficient evidence before them to continue without the claimant, but the fact is that the claimant had requested an oral hearing and had therefore clearly wished to participate in the proceedings. According to Rule 2 of the First-tier Tribunal Rules, the tribunal’s overall objective to deal with the case fairly and justly included a duty to ensure that the claimant was able to participate fully in the proceedings. In my view the tribunal at least needed to consider whether their overriding duty had been met in the circumstances or whether they should adjourn. Their failure to show in either the record of proceedings or statement of reasons that they considered the matter is, in my opinion, an error of law.”
The Upper Tribunal’s decision
10. I accordingly conclude that the tribunal’s decision involves an error of law. I therefore allow the Appellant’s appeal, set aside the tribunal’s decision and direct a re-hearing before a new tribunal.
11. The case now needs to be reheard by a new First-tier Tribunal. I cannot predict what will be the outcome of the re-hearing. The fact that this appeal to the Upper Tribunal has succeeded on a point of law is no guarantee that the re-hearing of the appeal before the new tribunal will succeed on the facts. So the new tribunal may reach the same, or a different, ultimate decision to that of the previous tribunal. It all depends on the findings that the new tribunal makes.
Directions to the new First-tier Tribunal
12. The new First-tier Tribunal must concentrate on the Appellant’s circumstances as they were in February 2012, and not the position as at the date of the new tribunal. This is because the new tribunal must apply the rule that a tribunal “shall not take into account any circumstances not obtaining at the time when the decision appealed against was made” (emphasis added; see section 12(8)(b) of the Social Security Act 1998).
13. I accept, of course, that it is difficult thinking that far back, to the position nearly two years ago. This may be a reason for the District Tribunal Judge (who makes directions for the re-hearing of this appeal) to consider making a request to the Appellant’s GP for copies of medical notes for the relevant period (e.g. say March 2011 to March 2012). This may provide further relevant information to supplement the rather limited evidence already available on file. However, the decision on whether such further evidence is required is best left to the good judgment of the District Tribunal Judge concerned.
14. I note that the Appellant had stated in his ESA50 that he suffered from extreme stomach pain and could not stop being sick. He had a medical examination by a registered nurse on 24 January 2012, but took issue with the findings of her report (which, of course, was precisely a reason why consideration should have been given to an adjournment to allow him to explain fully why that was the case). The nurse’s report was arguably not entirely consistent; she reported both that the Appellant’s breath smelled of alcohol and that “he appeared to be unable to walk in a straight line”; however, elsewhere she recorded that he “had no difficulty negotiating doorways and furniture within the examination centre”. The Appellant denied both at the time and subsequently that he had been drinking before the medical took place. I note that there was no suggestion that the Appellant was intoxicated at the tribunal hearing. Nor does the GP make any reference to any alcohol problem in his (admittedly fairly brief) letters of support. This is a further reason why the District Tribunal Judge may wish to direct production of the GP’s notes, in order to get a full picture.
Conclusion
15. I conclude that the decision of the First-tier Tribunal involves an error of law. I allow the appeal and set aside the decision of the tribunal (Tribunals, Courts and Enforcement Act 2007, section 12(2)(a)). The case must be remitted for re-hearing by a new tribunal subject to the directions above (section 12(2)(b)(i)). My decision is as set out above.
Signed on the original Nicholas Wikeley
on 13 November 2013 Judge of the Upper Tribunal
AS v Secretary of State for Work and Pensions (ESA) [2011] UKUT 159 (AAC)
Decision of the Upper Tribunal(Administrative Appeals Chamber)
This decision is given under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007:
Although the decision of the First-tier Tribunal under reference 230/09/00477, made on 2 March 2010 at Newcastle-upon-Tyne, involved the making of an error on a point of law, it is NOT SET ASIDE.
Reasons for Decision
1. This case raises important issues about the powers of the First-tier Tribunal to change its written reasons.
A. History and background
2. The claimant was awarded an employment and support allowance from 3 December 2008. The award was based on a GP’s certificate that the claimant had stress. When the claimant completed a self-assessment questionnaire in February 2008, he reported depression related to his stress as well as problems with his heart, tennis elbow and pain in his legs. The medical adviser identified a problem only with standing and sitting. On the basis of that report, the decision-maker decided that the claimant scored only six points and terminated his award. The claimant exercised his right of appeal to the First-tier Tribunal. In support, he produced a Psychiatric Report from Dr Tyrie. At the first hearing, the tribunal had not seen the report, through no fault of the claimant, so it adjourned the hearing. At the second hearing, the tribunal again adjourned, this time to obtain the GP’s records. At the third hearing, the tribunal found that the claimant satisfied two of the mental health descriptors, but removed the points for standing and sitting. The combined result was that the claimant did not have sufficient points to justify an award. The tribunal provided detailed written reasons for its decision, in twelve paragraphs over two pages. The presiding judge explained that the removal of the points for standing and sitting was based in part on Dr Tyrie’s report.
3. The claimant’s representative applied for permission to appeal on two grounds. First, the tribunal had failed to establish the type of chair on which Dr Tyrie has observed the claimant sitting. Second, the tribunal had not dealt with reasonable regularity in respect of sitting.
4. That application was referred to the presiding judge. She produced a new statement with additions that dealt in detail with the matters raised in the application for permission to appeal, an additional nine lines of type in total. At the end, she wrote:
The original statement omitted in error to refer to certain matters relating to sitting and also to the reasonable regularity test. They had been considered by the Tribunal but were not included in the Statement of Reasons as a result of a clerical mistake or accidental slip or omission. Consequently, using powers under rules 2, and 36, the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, the statement has been amended. This is subject to a district tribunal judge accepting this statement.
Documents on the tribunal’s file show that, apart from the words I have italicised, that passage was added at the suggestion of a salaried judge.
5. The salaried judge then issued this direction:
The Appellant has applied for permission to appeal to the Upper Tribunal against the decision of the Tribunal issued on 2.3.10.
Following receipt of the permission to appeal it is proposed to review the decision of the Tribunal under Rule 40 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008.
Pursuant to section 9(2)(b) of he Tribunals, Courts and Enforcement Act 2007 the Tribunal can review a decision when a party has asked for permission to appeal when it considers that the decision contains an error of law.
The Tribunal considered there might be an error of law in the decision as identified in the request for permission to appeal. The error of law appears to be that the Tribunal may not have considered all the matters raised.
The judge that prepared the Statement of Reasons has been asked to consider the issues raised in the request and has replied. It is proposed to amend the Statement of Reasons. The attached document is planned to be treated as an amendment of the above documents. The amendment is proposed under Rule 36 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008.
The appellant and any representative and any other party to the proceedings are invited to make comments in writing within 14 days of the date that this direction was sent to them, after which the tribunal will make a decision whether, and how, to review the decision of the Tribunal.
6. Subsequently, the salaried judge issued this decision:
The Appellant has applied for permission to appeal to the Upper Tribunal against the decision of the Tribunal on 2.3.10.
The Statement of Reasons as amended has been used to make the decision.
It is not appropriate to review the decision because the decision contains no error of law or procedure.
Permission to appeal is refused because
No error of law has been identified
Clear reasons have been given to explain the findings of fact.
The Tribunal has provided sufficient reason to explain why it came to the conclusion it did. The reasons are adequate in line with CIS/4022/2007 and Miss H v East Sussex County Council and Ors [2009] EWCA Civ 249 (Court of Appeal, 31.3.09).
7. The claimant’s representative then applied to the Upper Tribunal for permission to appeal on the following grounds. First, the revised reasons did not deal with whether the chair in which the claimant sat when with Dr Tyrie had arms. Second, the changes to the original reasons were a nullity and void for uncertainty. In support of the argument on uncertainty, the representative argued that: (i) the additional reasons were those of the presiding judge, not the doctor on the panel; (ii) the judge did not explain how she could recall the reasons after six months.
B. The legislation
8. There are two statutory powers that authorise a tribunal to alter its reasons.
9. One power is contained in rule 36 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (SI No 2685):
36 Clerical mistakes and accidental slips or omissions
The Tribunal may at any time correct any clerical mistake or other accidental slip or omission in a decision, direction or any document produced by it, by-
(a) sending notification of the amended decision or direction, or a copy of the amended document, to all parties; and
(b) making any necessary amendment to any information published in relation to the decision, direction or document.
10. The other power is provided by section 9 of the Tribunals, Courts and Enforcement Act 2007:
9 Review of decision of First-tier Tribunal
(1) The First-tier Tribunal may review a decision made by it on a matter in a case, other than a decision that is an excluded decision for the purposes of section 11(1) (but see subsection (9)).
…
(4) Where the First-tier Tribunal has under subsection (1) reviewed a decision, the First-tier Tribunal may in the light of the review do any of the following-
(a) correct accidental errors in the decision or in a record of the decision;
(b) amend reasons given for the decision;
(c) set the decision aside.
11. The power to review under section 9 is governed by rule 40:
40 Review of a decision
(1) This rule does not apply to asylum support cases or criminal injuries compensation cases.
(2) The Tribunal may only undertake a review of a decision-
(a) pursuant to rule 39(1) (review on an application for permission to appeal); and
(b) if it is satisfied that there was an error of law in the decision.
(3) The Tribunal must notify the parties in writing of the outcome of any review, and of any right of appeal in relation to the outcome.
(4) If the Tribunal takes any action in relation to a decision following a review without first giving every party an opportunity to make representations, the notice under paragraph (3) must state that any party that did not have an opportunity to make representations may apply for such action to be set aside and for the decision to be reviewed again.
12. Under the 2007 Act, all decisions are made by the tribunal. The composition of the tribunal is governed by the First-tier Tribunal and Upper Tribunal (Composition of Tribunal) Order 2008 (SI No 2835), which was made under the authority of paragraph 15 of Schedule 4 to the Act. The Order delegates the power to direct the composition of the tribunal for different purposes to the Senior President of Tribunals. He exercises this power through a series of Practice Statements. His Composition of tribunals in social security and child support cases in the Social Entitlement Chamber on or after 3 November 2008 provides:
10. A decision, including a decision to give a direction or make an order, made under, or in accordance with, rules 5 to 9, 11, 14 to 19, 25(3), 30, 32, 36, 37 or 41 of the 2008 Rules may be made by a Tribunal Judge, except that a decision made under, or in accordance, with rule 7(3) or rule 5(3)(b) to treat a case as a lead case (whether in accordance with rule 18 (lead cases) or otherwise) of the 2008 Rules must be made by the Chamber President.
11. The determination of an application for permission to appeal under rule 38 of the 2008 Rules and the exercise of the power of review under section 9 of the Tribunals, Courts and Enforcement Act 2007 must be carried out –
a. where the Judge who constituted or was a member of the Tribunal that made the decision was a fee-paid Judge, by a salaried Tribunal Judge; or
b. where the Judge who constituted or was a member of the Tribunal that made the decision was a salaried Judge, by that Judge or, if it would be impracticable or cause undue delay, by another salaried Tribunal Judge,
save that, where the decision is set aside under section 9(4)(c) of the Act, the matter may only be re-decided under section 9(5)(a) by a Tribunal composed in accordance with paragraph 4, 5 or 6 above.
C. the changes were not authorised
13. I have come to understand, and have a little more sympathy with, the salaried judge’s approach as these proceedings have progressed. I began by being puzzled by some of his directions. Why for example did he allow the parties a chance to comment within 14 days on the exercise of rule 36, which is usually a matter outside the knowledge of the parties? Following the Secretary of State’s response to the appeal, I realised that the judge was trying to do two things at once and this had caused him to give the directions that had puzzled me. His difficulty arose from the Senior President’s Practice Statement. The presiding judge had power to act under rule 36, but not on review. The salaried judge had power to act under rule 36 and on review, but would obviously have difficulty in knowing whether the conditions for the exercise of the rule 36 power were satisfied. This led him to include in one set of directions provisions that were appropriate for review but not for rule 36, such as a chance to make representations. That direction related to rule 40(4) and was obviously included to cater for the possibility that the salaried judge might review the decision. An opportunity to comment might be appropriate in some cases when rule 36 is in contemplation. For example: other parties may be affected by the correction. But in this case, as will often be so, that was not appropriate, as the need for the correction was uniquely known to the members of the panel that decided the case and to the judge who wrote the tribunal’s reasons. In the event, the provision was not necessary, as the salaried judge did not conduct a review.
14. Rule 36 and section 9(4) contain separate powers. It is not necessary to review a decision in order to operate rule 36. The powers in section 9(4) only apply once a decision has been reviewed. And a decision can only be reviewed if it contains an error of law. The power in section 9(4)(a) looks similar in its language and scope to rule 36. The power in section 9(4)(b) looks wider. The contrasting language of that latter (amend rather than correct) and its addition to section 9(4)(a) indicate that it is wider that the powers to correct.
15. Rule 36 operates outside the review power. The composition of the tribunal is governed by paragraph 10 of the Practice Statement. The power could have been exercised by either the presiding judge or the salaried judge. The changes to the reasons were written by the presiding judge. The comment that the changes were ‘subject to a [salaried] district tribunal judge accepting the amendment’ may suggest that the formal exercise of the power was left for the salaried judge, but there is nothing to show that he exercised the power under rule 36. His refusal of permission merely records that the reasons had been ‘amended’. That term is more appropriate to section 9(4)(b) than to rule 36, which uses the term ‘correct’. But there is no formal decision reviewing the tribunal’s decision and using the power under section 9. The only decision is the one refusing to review and refusing permission to appeal.
16. Rule 36 is by its contents a species of slip rule and should be interpreted in accordance with the nature of that type of provision. As such, it deals with matters that were in the judge’s mind when writing but for some reason did not find their way onto the page. Typical examples are the typing error that produces the wrong date or a momentary lapse of concentration that results in the word ‘not’ being omitted. The rule does not cover matters that the judge had planned to mention but forgot to include. Obviously, it is difficult for the Upper Tribunal to know what was in the judge’s mind, but the extent of the changes are an indication. It is difficult to classify the omission of a total of nine lines of explanation as in the same category of mistake as a typing error or a momentary lapse of concentration. For that reason, I decide that the changes made by the presiding judge were not authorised by rule 36.
17. The Secretary of State has submitted that it is possible to treat something that was invalidly done under one power as validly done under another. That may be possible in some cases. It would certainly be of no value to anyone for the case to be sent back to the First-tier Tribunal for the same result to be obtained under a different authority. (In practice, the Upper Tribunal could decline to set the decision aside under its discretion in section 12(2)(a) of the Act.) In this case, it is not possible to treat the changes as validly made under the review power. Not only was there no review under section 40, but the conditions for a review were not satisfied: the salaried judge merely said initially that there might be an error and then that there was no error on the new version of the reasons. In those circumstances, it is impossible to treat the changes as made under section 9(4)(b).
18. The claimant’s representative referred me to SE v Secretary of State for Work and Pensions [2009] UKUT 163 (AAC) and AM v Secretary of State for Work and Pensions [2009] UKUT 224 (AAC). Those decisions are distinguishable on the ground that in this case the tribunal expressly relied on rule 36. The tribunals in those cases expressly relied on rule 40.
19. There are authorities that allow a judge to add to reasons once they have been given. No one has argued that the changes to the reasons could have been valid under that power, which was not used. Whether those authorities apply in social security cases is a matter for another day.
D. The other arguments
20. I have yet to deal with the other arguments put by the claimant’s representative.
21. The first argument is that even the revised reasons did not deal with whether the chair that the claimant used with Dr Tyrie had arms. That is not correct. The judge included a statement that this was not stated by Dr Tyrie.
22. The other argument was based on uncertainty. This was put on two grounds. The first ground was that the presiding judge had added her own reasons, not those of the panel, as she had not consulted the doctor who sat with her. I reject this argument. For a start, there is no evidence that she did not consult the doctor. Nor was there necessarily any need for her to do so. A tribunal’s reasons are those of the whole panel and they should be apparent to them at the end of their deliberations. Consultation should not usually be necessary. The second ground is effectively that the judge could not recall the tribunal’s reasons six months later. I reject this argument. Judges can often recall the details of cases long after the hearing. They also take notes that they are able to consult. The judge has said that she meant to deal with the additional issues and there is no reason to doubt her integrity.
E. why i have not set the decision aside
23. The tribunal’s reasons as originally drafted did not deal with the two issues of sitting and reasonable regularity. The revised reasons included those, but I have decided that the additions were not valid. In those circumstances, the tribunal’s reasons were inadequate and I now have to decide on disposal. I have a power not to set aside a decision, despite an error of law, under section 12(2)(a) of the 2007 Act:
(2) The Upper Tribunal-
(a) may (but need not) set aside the decision of the First-tier Tribunal, …
I allowed the claimant’s representative a chance to comment on disposal, but he merely referred me to a statement in the Secretary of State’s response that supported a rehearing. I am not sure that is the effect of the response when it is read as a whole. Be that as it may, the issue is one for me to decide and the claimant’s representative has not commented on it.
24. The key issue is whether I can take account of the additional reasons that were given by the judge outside the authority of rule 36. There are two possible approaches. One is to ignore those reasons as they were given without authority. The other, which I favour, is not to direct a rehearing if the tribunal’s decision was sound on the facts and the law. In deciding whether it is sound, I see no reason why I cannot take into account the additional reasons that the judge gave. As I have said, there is no reason to doubt the judge’s integrity. I have know other judges to admit that they could not recall reasons, but she has said that she can. The reasons she has given are soundly based in the evidence and are the sort of reasons that I would have expected the tribunal to give. In summary, they are as follows. The tribunal took account of Dr Tyrie’s evidence as one part of the evidence as a whole, appreciating that the doctor did not specify the type of chair. It decided that the claimant did not have a significant back problem, sufficient to affect his ability to sit regularly, in view of the contents of the detailed medical records provided by his GP. Those are sound and rational reasons for rejecting the claimant’s case on sitting.
25. My decision is that technically the tribunal’s reasons were inadequate, but having read the evidence that was before the tribunal, and taken into account the tribunal’s reasons as disclosed by the judge, I consider that the decision itself was sound in fact and law. It is not appropriate to set it aside. I exercise my power under section 12(2)(a) accordingly.
Signed on original on 15 April 2011
Edward Jacobs Upper Tribunal Judge
AW v Secretary of State for Defence [2014] UKUT 343 (AAC) CAF/329/2013
AW v Secretary of State for Defence
(War pensions and armed forces compensation : War pensions - entitlement)
[2014] UKUT 343 (AAC) (21 July 2014)
IN THE UPPER TRIBUNAL Case No. CAF/329/2013
ADMINISTRATIVE APPEALS CHAMBER
Before: E A L BANO
Decision: My decision is that the decision of the First-tier Tribunal involved the making of an error on a point of law. I set aside the tribunal’s decision and remit the case for hearing before a differently constituted tribunal.
REASONS FOR DECISION
1. This is an appeal against the decision of the tribunal dismissing the claimant’s appeal against a decision made in May 2012 that the condition Meniere’s Disease was neither attributable to nor aggravated by service. The appeal, which has been brought with my permission, has been opposed by the Secretary of State in submissions dated 8 October 2013 and 26 February 2014.
2. The claimant was born in Coventry on 16 October 1929. His service records have unfortunately been lost or destroyed, but the Secretary of State accepts that the claimant must have served on board ships during service in the Royal Navy from 7 May 1947 to 28 May 1949. At a medical board carried out in the USA on 13 February 2012 the claimant described injuries which he sustained during the bombing of Coventry when he was a teenager, saying that the bombing was so loud that his ears bled and hurt.
3. On 20 April 2011 the claimant contacted the SPVA to request a claim form, which he returned on 6 June 2011. He claimed that while at sea he could not keep his balance and vomited blood, as a result of which he was repeatedly ill-treated and disciplined. He stated that he received medical treatment in Malta and was repatriated on the M.V. ‘Dunera’ before being medically discharged. He also made a claim in respect of osteoarthritis in his left knee, which he said resulted from a fall caused by losing his balance while at sea.
4. The claimant now lives in California, and on 13 February 2012 he underwent a medical board by a local ENT specialist. He was confined to a wheelchair and was found to have total hearing loss in his left ear, no useful hearing in his right ear and to be suffering from severe symptoms of Meniere’s disease three or four times a week. Although there were significant errors in the medical report with regard to the claimant’s service history, I agree with the Secretary of State’s submission of 26 February 2014 that they must have resulted from the extreme difficulty in taking a history from a person in the claimant’s condition and that they are not significant for the purposes of this decision.
5. On 24 April 2012 a certificate was issued rejecting Meniere’s disease as attributable to or aggravated by service, on the basis that the condition was consistent with the injuries which the claimant had received during the bombing of Coventry and because he had not given details of any injury during service which could have caused the condition. Although the knee condition was accepted as being attributable to the falls which the claimant had suffered on board ship, the claim for that condition was rejected on the basis that the imbalance causing the claimant to fall was not service related.
6. The claimant appealed against the rejection of his claim on 24 June 2012 and his appeal was heard in his absence on 14 November 2012. The tribunal expressed sympathy for the claimant, but dismissed the appeal because:
“…there is insufficient information on which unfortunately we can discern a link between [the claimant’s] experiences in service and those disablements from which he now suffers, Meniere’s disease, hearing loss and osteoarthritis in the left knee”.
7. I gave permission to appeal on 24 July 2013 for the following reasons:
“The tribunal’s reasons for dismissing the appeal arguably leave in doubt whether, on the one hand, they accepted the claimant’s account of the falls which he sustained on board ship but considered that they played no part in causing the claimed disablements, or whether, on the other hand, they did not accept what the claimant said. If the tribunal took the view that the sole cause of the claimant’s disablement was the bomb blast which he suffered as a teenager, there is no reason why they should not have said so.”
The Secretary of State’s representative accepts that the tribunal’s reasons for its decision are brief, but has submitted that the tribunal came to the only conclusion which was open to it on the evidence.
8. I have however come to the conclusion that the tribunal’s reasons were inadequate, and that a decision dismissing the appeal was not inevitable on the evidence. Although the matter may ultimately have to be determined by another tribunal, I regard it as extremely unlikely that the claimant was manifesting any signs or symptoms of Meniere’s disease when he joined the Royal Navy. Any hearing loss at that stage would have been readily discernable by means of a forced whisper test at the claimant’s entry medical and would almost certainly have made the claimant unfit for service at sea.
9. Although the medical appendix included in the case papers recognises physical or acoustic trauma as a cause of Meniere’s disease, paragraphs 16.2 and 16.3 of the Appendix state:
“16.2 Damage due to trauma is usually immediate and hearing loss first noticed 6 months or more after the injury cannot reasonably be attributed to that injury.
16.3 An injury insufficiently severe as to cause loss of consciousness is very unlikely to damage the hearing.”
On the assumption that the claimant was not manifesting signs or symptoms of Meniere’s disease when he joined up and in the absence of any evidence that the claimant was rendered unconscious during the bombing of Coventry, those paragraphs tend to exclude the acoustic trauma which the claimant experienced during the bombing as the likely cause of Meniere’s disease. In those circumstances, the tribunal ought in my view to have dealt with the question of whether the falls which the claimant alleged took place on board ship, or any other factors of service, were the cause, and not the result, of the claimant’s Meniere’s disease.
10. It is of course true, as the tribunal observed, that there was very little evidence available to them to help them answer that question. However, if the invaliding condition leading to the claimant’s discharge was Meniere’s disease, as seems likely if he was being treated for that condition prior to his discharge, there must have been a rejection of a deemed claim in respect of that condition under the predecessor provision of paragraph 35(2) of the 2006 SPO. The claimant cannot be expected to have known of his deemed claim in 1949 and, as the Secretary of State’s representative has helpfully explained, he would not have been informed of its rejection. The fact that the application made on 20 April 2011 was in the form of a new claim, rather than as an application for a review should therefore not have prevented it from being treated as a review application if it was in respect of the previously rejected condition.
11. Treating the April 2011 application as a review application rather than as a new claim would almost certainly not affect the commencement date of any award, but it could crucially affect the burden and standard of proof in a case in which there was a lack of evidence on the question of whether Meniere’s disease was linked to any factors of service. Since the deemed claim made in 1949 was made within 7 years of the termination of service, it would have been governed by Article 4 of the 1943 Royal Warrant. Article 4(3), which was in the same terms as Article 40 (4) of the 2006 Service Pensions Order, provided:
“Subject to the following provisions of this article, where an injury which has led to the a member’s discharge or death during service was not noted in a medical report on that member on the commencement of his service, a certificate under paragraph (1) shall be given unless the evidence shows that the conditions set out in that paragraph are not fulfilled.”
12. Since the service records are missing, it cannot now be shown conclusively that the claimant’s entry medical did not record the symptoms of Meniere’s disease. However, the destruction of the records should not operate to the claimant’s disadvantage, and in my view there is nothing to prevent a finding on the balance of probabilities that, for the reasons given above, Meniere’s disease was not noted at the entry medical. Similarly, the disabling condition which led to the claimant’s medical discharge cannot be conclusively established, but if Article 4(3) of the 1943 Warrant applied because the disabling condition which led to the claimant’s discharge was Meniere’s disease, the claimant is entitled to a finding of attributability unless the evidence establishes that Meniere’s disease was unrelated to service. It would follow from such a finding that the knee injury was also attributable to service.
13. In weighing the probabilities with regard to the cause of Meniere’s disease the tribunal did not have regard to the provisions of the Medical Appendix to which I have referred and (perhaps unsurprisingly) they did not consider whether the case was governed by what is not the Article 40 regime. For those reasons, I consider that the tribunal’s decision involved the making of an error on a point of law. I therefore set aside the decision and, since the determination of this claim requires medical expertise, I refer the case to the War Pensions and Armed Forces Compensation Chamber of the First-tier Tribunal for rehearing before a fresh tribunal.
14. Applying what I have said in paragraphs 11 and 12, the new tribunal should decide if this case is to be treated as a review application, in which case it will be governed by what is now the Article 40 burden and standard of proof, or a new claim, in which case it will be governed by the Article 41 regime. If the tribunal consider that it is governed by Article 40, they will need to decide if the evidence establishes that Meniere’s disease was not service related. If the tribunal decides that the case is governed by Article 41, the burden of proof will be on the claimant to establish that Meniere’s disease has a service connection, subject of course to the benefit of any reasonable doubt under Article 41(5).
14. Although I have remitted the case for rehearing, in view of the claimant’s age and serious medical condition I would be grateful if the SPVA could reconsider its decision in the light of what I have said about the possible application of the predecessor of Article 40 the 2006 SPO to this case.
(Signed)
E A L BANO
Judge of the Upper Tribunal
(Dated) 21 July 2014
[2007] UKSSCSC CAF_656_2006 (30 January 2007)
CAF/656/2006
DECISION OF THE PENSIONS APPEAL COMMISSIONER
1. My decision is that the decision of the tribunal is erroneous in point of law. I set aside the decision and refer the case for rehearing before a differently constituted tribunal.
2. This is an appeal from a decision of a Pensions Appeals Tribunal made on 7 December 2005 upholding the Secretary of State’s refusal to award the appellant a clothing allowance under Article 17(1)(b) of the Naval, Military and Air Forces (Disablement and Death) Service Pensions Order 1983, which provides for a member of the armed forces who is in receipt of a pension to be awarded an allowance in respect of wear and tear of clothing if the Secretary of State is satisfied “that as a result of the disablement which gives rise to an award under the Order there is exceptional wear and tear of the member’s clothing”. I held an oral hearing of the appeal on 6 November 2006, at which the appellant was represented by her husband and the Secretary of State was represented by Mr Jonathan Auburn, of Counsel.
3. The appellant was in receipt of war pension in respect of bilateral noise induced sensori-neural hearing loss 1980-1985, attributable to service, and fibromyalgia, also attributable to service, for the period from 20 April 1996. Disablement in respect of the latter condition was originally assessed as 30%, but the assessment was increased to 70% on appeal on 21 July 2004 following a medical examination on 30 August 2003. The appellant had first made a claim for clothing allowance on 6 December 2002 which had been rejected on 10 December 2002, but on 6 August 2004 she made a new claim, referring to the fact that the symptoms of fibromyalgia listed in the medical appendix produced in connection with the assessment appeal included irregular bowel action, dysmenorrhoea and urinary frequency. The claimant stated that as a result of those problems she needed to replace her clothes more often than usual. However, the claim for clothing allowance was rejected on 22 September 2004.
4. Following the refusal of the claim, the appellant’s husband wrote a letter challenging the rejection of that and a number of other supplementary allowance claims. In relation to clothing allowance, he asserted that the medical evidence which the assessment tribunal had accepted clearly indicated that double incontinence was a symptom of fibromyalgia. It is relevant to mention that the claimant’s husband uses the title ‘Doctor’, although he told me that he possesses no medical qualifications. It may well be that it was for that reason that the subsequent proceedings became dominated by the issue of double incontinence in the medical and technical sense of that term, that is, inability to control bowel or urinary function.
5. On 1 October 2004 the appellant’s husband, acting as her representative, appealed on her behalf against the rejection of the claim for clothing allowance, specifically on the ground that double incontinence was part and parcel of the condition of fibromyalgia which had been accepted by the July 2004 assessment tribunal. He also asserted that the claimant suffered damage to her clothing as a result of frequent falls, and because of damage to her clothing caused by the claimant falling asleep while smoking. The medical advice obtained by the Veterans Agency accepted that the symptoms of fibromyalgia include urinary frequency and irregular bowel habit, but stated that fibromyalgia does not result in the involuntary loss of urine or faeces. The Secretary of State’s stated reasons for rejection of the claim were based on that advice.
6. The appellant’s husband submitted a large body of medical evidence to the tribunal, but the appellant herself did not attend and her husband gave evidence on her behalf. Having considered the evidence, the tribunal dismissed the appeal for the following reasons:
“The Tribunal accepted the evidence given that the Appellant suffers from double incontinence. The Tribunal considered the substantial amount of medical evidence provided in the Statement of Case and found no support for the contention made on behalf of the Appellant that double incontinence is a symptom of the accepted condition. The principal reason put forward for the grant of a clothing allowance was the staining due to double incontinence and the Tribunal finds no evidence of causation by the accepted condition as required by Article 17.
Additional evidence was given of having to change clothes due to smoking and general instability. (The description of the damage to the clothing was pin-holes and minor snagging which did not require immediate replacement.) The Tribunal found that the magnitude of the problem does not constitute exceptional wear within the meaning of the Article.”
In the reasons for refusing leave to appeal, the chairman added that the appellant’s husband had accepted at the hearing that none of the medical evidence supported his assertion that double incontinence was a symptom of fibromyalgia.
7. The doctor who examined the appellant on 30 August 2003 reported that the claimant had “symptoms of irritable bowel syndrome which often accompany fibromyalgia. It is possible that with her slow mobility she is occasionally incontinent of faeces. She wears pads day and night because of urinary incontinence but she says she can cope with these.” I gave leave to appeal on 16 March 2006 because I considered it arguable that the tribunal did not deal adequately with the evidence of loss of control of bowel and urinary function, but in a written submission dated 22 May 2006 the Secretary of State’s representative opposed the appeal on the ground that the only relevant issue was one of causation, namely, whether incontinence was part of the accepted condition. At the oral hearing Mr Auburn maintained substantially the same position, submitting that on the basis of the medical evidence the tribunal dealt correctly with the only issue which it had to consider, namely, whether double incontinence was part and parcel of the of the accepted condition. Mr Auburn further submitted that by virtue of section 5B(a) of the Pensions Tribunals Act 1943, the tribunal did not have to consider any other issue.
8. The appellant stated in her claim form that she suffered from irregular bowel action, dysmenorrhoea, urinary frequency and irritable bowel syndrome, and that, despite the use of incontinence pads, leakage caused staining of her inner and outer garments. Although the medical examiner referred to the appellant being “incontinent of faeces”, he did so in the context of the appellant soiling her clothes because her fibromyalgia affected her ability to get to the lavatory in time. The appellant did not state in the claim form that she suffered from double incontinence, and on that basis the relevant issue was whether the appellant’s fibromyalgia caused exceptional wear and tear of her clothing as a result of increased urgency of defecation or micturiton, combined with a reduced ability to respond sufficiently quickly to calls of nature.
9. However, section 5B(a) of the Pensions Appeal Tribunals Act 1943, which was inserted by section 59 of the Child Support, Pensions and Social Security Act 2000, provides that in deciding any appeal a Pensions Appeal Tribunal “need not consider any issue that is not raised by the Appellant or the Minister in relation to the appeal”. The appellant’s representative asserted in the reasons for appeal and in the protracted and belligerent correspondence which he has conducted on her behalf that the appellant suffered from double incontinence. The tribunal dealt with the case on that basis, and the question therefore arises whether section 5B(a) of the 1943 Act excused the tribunal from considering whether regulation 17(1)(b) was satisfied on any other basis.
10. Section 5B(a) of the 1943 Act is in similar but not identical terms to section 12(8)(a) of the Social Security Act 1998, which provides in relation to social security cases that an appeal tribunal “need not consider any issue not raised by the appeal.” In CDLA/1000/2001 Mr Commissioner Jacobs held that the question of what issues were “raised by the appeal” was to be determined by reference to the substance of the appeal, rather than by just the wording of the appeal letter. In a case where the claimant was in receipt of the mobility component of disability living allowance and sought care component on the basis of the disablement which caused his mobility difficulties, the tribunal could therefore consider the basis of the claimant’s entitlement to the mobility component.
11. A refusal of a clothing allowance is a specified decision for the purposes of section 5A of the 1943 Act, which requires the Minister to notify the claimant of the making of such a decision, “specifying the ground on which it is made”. Section 5A(1)(b) then provides that “thereupon an appeal against the decision shall lie to the Tribunal on the issue whether the decision was rightly made on that ground.” In my judgment, it is apparent from those words that it is the decision appealed against and the ground on which that decision was made which define the scope of the appeal, so that in order to decide whether an issue has been raised by the appellant or by the Minister “in relation to the appeal”, it is necessary to have regard not only to the specific contentions of the parties in the appeal itself, but also to the issues raised by the original claim.
12. The terms of section 5A of the 1943 Act follow those of section 1, which confers a right of appeal in respect of a decision that an injury is neither attributable to nor aggravated by service. The Minister must notify the claimant of the decision, specifying “that it is made on that ground”, and an appeal lies “on the issue whether the claim was rightly rejected on that ground”. It seems to me to be clear that the “ground” of a decision under section 1 is a finding that the statutory grounds of entitlement are not satisfied, and I would similarly hold in this particular statutory context that the ‘ground’ of a decision under section 5 is a finding that the statutory conditions of entitlement to an award are not satisfied, rather than the reasons for that conclusion. In my view therefore, the principle in social security cases that the issues raised by an appeal are not limited to those set out in the notice of appeal applies equally to war pensions cases, although it may be necessary to give further consideration in a future case to any limitations on the scope of an appeal imposed by the words in sections 1 and 5 of the 1943 Act “..whether the decision was rightly made on that ground.”
13. I am unable to trace the original notification of the decision rejecting the 2004 claim for clothing allowance, but in a letter to the appellant’s representative dated 26 April 2005 written on behalf of the Veterans Agency Chief Executive it was stated that the claim was rejected “on the grounds that (the appellant’s) accepted disablement of Fibromyaligia does not cause excessive wear and tear of her clothing”. In my view, a decision in those terms adequately set out the grounds for rejecting the claim. The article is concerned with whether as a result of an accepted disablement there is wear and tear of the claimant’s clothing and, if so, whether that wear and tear is exceptional, and in my view it was the Secretary of State’s decision that the appellant did not satisfy that condition which formed the ground of his decision refusing an award of clothing allowance. Article 17 does not require the Secretary of State to be satisfied that one condition is to, to use the time honoured formulation, ‘part and parcel’ of another condition, although it may be necessary to consider such an issue in a case where the causal connection between damage to clothing and an accepted condition is in dispute. The tribunal should therefore have considered whether the appellant’s accepted disablement resulted in wear and tear of her clothing, irrespective of whether she had double incontinence, and if so whether that wear and tear was exceptional. The tribunal was not entitled to limit its consideration to the question of whether double incontinence was part and parcel of fibromyalgia and, for that reason, their decision was in my judgment erroneous in point of law.
14. I therefore set aside the decision, although not without considerable sympathy for the tribunal, and, since I cannot determine the appellant’s entitlement to clothing allowance on the basis of the documentary evidence, I refer the case for rehearing before a differently constituted tribunal. The new tribunal will have to re-hear the appeal in its entirety.
(signed on the original) E A L Bano
Commissioner
30 January 2007
[2007] UKSSCSC CAF_2150_2007_ (12 December 2007)
DECISIONS OF THE PENSIONS APPEAL COMMISSIONER
1. My decisions are given under section 6A(4)(a)(ii) of the Pensions Appeal Tribunals Act 1943:
I SET ASIDE these decisions of the Pensions Appeal Tribunals:
held in Birmingham under reference AFCS/00009/2006 on 20 December 2006;
held in Newport under reference AFCS/00008/2006 on 21 February 2007.
I make findings of fact and give the decision appropriate in the light of them.
I FIND these facts:
(i) Acting Sergeant T’s death occurred while he was in service, but service was not the predominant cause of his death;
(ii) at the time of his death, he was not on duty;
(iii) at that time, he was not responding to an emergency.
My DECISIONS are that the claimants are not entitled to benefit under the Armed Forces and Reserved Forces Compensation Scheme 2005 in respect of the death of Acting Sergeant Michael T.
REASONS
2. These cases raise a number of issues on the interpretation and interrelation of articles 9 and 10 of the Armed Forces and Reserved Forces (Compensation Scheme) Order 2005.
3. They arise from the sad death on 7 July 2005 of an Acting Sergeant; I shall call him Sergeant T. Following his death, two claims were made under the Armed Forces and Reserved Forces Compensation Scheme 2005. One was by his widow (CAF/2151/2007); the other was by his former wife on behalf of their son (CAF/2150/2007). The Veterans Agency did not make an award on either claim. On appeal, different Pensions Appeal Tribunals allowed the appeals. The Secretary of State appealed against those decisions with my leave.
4. In view of the nature of the issues, I held a hearing on 6 December 2007. The Secretary of State was represented by Mr Martin Chamberlain, of counsel, instructed by the Treasury Solicitor. The claimants were represented by Mr James Bond, of the Royal British Legion. I am grateful to them for their written arguments and for their presentations and discussions at the hearing.
History and background
5. Sergeant T was a chef. He was based in Cyprus at Dhekelia Garrison. He was promoted and transferred to another base on Cyprus, Ayios Nikolaos. Until married quarters became available there, he continued to live at Dhekelia Garrison, 15 miles away. He was paid a residence to place of duty allowance – a MOD RESPOD.
6. On the day of his death, Sergeant T was due to report to his base at 8.30 a.m.. He was concerned because the military chefs under him were unreliable and the civilian staff were under suspicion because stores had gone missing. At 6 a.m., he rang the base and spoke to the Head Chef. He learnt that the chefs under him had not reported for duty. He brought forward his journey to work and left at once. On the way, his motor cycle was in collision with a civilian truck. He died as a result of the accident.
The legislation
7. The armed and reserved forces compensation scheme was created under section 1(2) of the Armed Forces (Pensions and Compensation) Act 2004:
‘The Secretary of State may by order establish schemes which provide for benefits to be payable to or in respect of a person by reason of his illness or injury (whether physical or mental), or his death, which is attributable (wholly or partly) to his service in the armed forces or the reserved forces.
Such a scheme is referred to in this Act as an armed forces and reserved forces compensation scheme.’
8. The Scheme was created by the Armed Forces and Reserved Forces (Compensation Scheme) Order 2005.
9. Article 2(1) contains definitions. The only relevant definition is:
‘“service” means service as a member of the forces, except as provided in article 10’.
10. Articles 7 and 8 provide for injury that is caused or made worse by service. Article 9 deals with death caused by service. The following requirements are relevant in this case.
· the cause of the death must have occurred on or after 6 April 2005;
· the death must have occurred in service;
· service must be the sole or predominant cause of death.
11. Articles 10 and 11 then make detailed provisions relevant to articles 7, 8 and 9:
‘Injury and death - inclusions
10.-(1) Benefit is payable in accordance with this Order to or in respect of a person by reason of an injury sustained or death occurring, while participating in-
(a) sporting activities as a player, a referee, an organiser or a representative of a particular sport or sporting organisation where-
(i) the Secretary of State has approved the sport as being a sport which enhances the fitness, initiative and endurance of members of the forces, and
(ii) the relevant Service has recognised the particular event and the organisation and training for it;
(b) activities approved by the relevant Service which are undertaken for the purpose of meeting and maintaining the physical standards required of members of the forces; or
(c) adventurous training courses or adventurous expeditions approved by the relevant Service;
in each case where service is the predominant cause of the injury or death.
(2) For the purposes of paragraph (1)(a)(i), the Secretary of State may approve a single sporting activity or a class of such activities and may approve such activities unconditionally or subject to any specified condition.
(3) The activities referred to in paragraph (1) do not include social events or free time associated with those activities.
(4) Benefit is payable in accordance with this Order to or in respect of a person by reason of an injury sustained or a death occurring while travelling from-
(a) his home or his place of work to the place where an activity referred to in paragraph (1) is to happen or while travelling back again;
(b) his home or his regular place of work or while travelling back again in both cases where one of the circumstances specified in paragraph (5) applies and service is the predominant cause of the injury or death.
(5) The circumstances referred to in paragraph (4)(b) are where the member of the forces-
(a) is travelling from his home or his regular place of work to a place of work outside the United Kingdom or back again;
(b) is travelling from his home or his regular place of work to another place of work in the United Kingdom which is not his regular place of work or while travelling back again; or
(c) is required to reside in accommodation provided by the Ministry of Defence for families of members of the forces at a distance of over 50 miles from his regular place of work and is travelling by a reasonably direct route from that accommodation to that place of work or while travelling back again.
(6) Benefit is payable in accordance with this Order to or in respect of a person by reason of an injury sustained or a death occurring-
(a) as a result of acts of terrorism or other warlike activities in each case directed towards him as a member of the forces as such; or
(b) while called out to and travelling to an emergency
but only where service is the predominant cause of the injury or death.
(7) This article does not apply unless the cause of the injury, or the cause of the death, occurred on or after 6th April 2005.
(8) In this article, "the relevant Service" means the Army, the Navy, the Air Force or the Reserve Forces as the case may be.
‘Injury and death - exclusions
11. No benefit is payable under this Order to or in respect of a person by reason of -
(a) an injury which is predominantly caused or predominantly made worse by, or death which is predominantly caused by-
(i) the use or effect of tobacco,
(ii) the consumption of alcohol,
(iii) medical treatment of the injury except where the treatment is provided while the person sustaining the injury is on military operations outside the United Kingdom and in circumstances relating to service where medical facilities are limited,
(iv) the non-therapeutic use of drugs,
(v) consensual sexual activities,
(vi) except where article 8 applies, events, experiences, exposures and activities occurring before the member of the forces entered service;
(b) an illness which is-
(i) caused by a single gene defect or is predominantly hereditary in origin;
(ii) a personality disorder;
(iii) an endogenous infection;
(iv) an exogenous infection except where the infection is endemic to a tropical or a subtropical region and the person infected has been exposed to the infection in the course of his service or where, in a temperate region, there has been an outbreak of the infection in service accommodation or a workplace.
(c) a self-inflicted injury whether or not causing death except where the self-inflicting of injury is a result of a mental illness caused by service.’
What the tribunals decided
12. The tribunals were slightly differently constituted. The chairman and service member were the same, but they sat with a different medical member in each case. The tribunals allowed both appeals and decided: (i) service was the predominant cause of Sergeant T’s death (article (9); (ii) it did not matter that the circumstances were not covered by article 10(4)(b) and (5); and anyway (iii) he had been called out, and was travelling, to an emergency (article 10(6)(b)).
The relationship between articles 9 and 10
13. The tribunals decided that article 9 was not limited by article 10.
14. Mr Chamberlain began by arguing that article 10 made specific and exclusive provision for particular activities. Taking sport as an example, he argued that injury or death occurring in the course of a sporting activity was only within the scheme if it fell within article 10(1). In answer to my questions, he did not accept that article 10 only applied if the case did not otherwise fall within article 9. I believe it is fair to say that he later acknowledged that there might be cases in which a death was caused by service in the course of an activity covered by article 10 but outside the scope of its particular provision. However, he did not accept that that was the position in these cases.
15. Mr Bond argued that the first question was whether service was the predominant cause of Sergeant T’s death. In other words, he began with article 9 and only relied on article 10 if article 9 did not apply. I accept that that was the correct approach.
16. My analysis is this. I refer only to death, but the analysis applies also to injury.
17. Article 9 deals with cases in which death was caused by service. Article 10 deals with cases that do not fall within article 9, because the death was not caused by service. It deals with circumstances which would not normally be considered as part of service as a member of the forces. Article 11 excludes some causes of death from the scope of the scheme. For the most part, it seems to be merely declaratory. For example, it is difficult to envisage circumstances in which a death that was predominantly caused by the non-therapeutic use of drugs or by consensual sexual activities would also be predominantly caused by service.
18. The different subject matter of articles 10 and 11 explains why the definition of service in article 2(1) refers to article 10, but not to article 11. Service relates to activities undertaken by the forces. Article 10 deals with the circumstances in which death occurred by specifying particular activities. Article 11, however, deals with causes not circumstances. It does not deal with activities that are involved in service, but with particular causes of death. It does not relate to the scope of service and is, therefore, not mentioned in the definition.
19. My interpretation is consistent with the way in which ‘include’ is generally used in legislation to extend the usual meaning of a word. It is also consistent with the definition in article 2(1). Service means service as a member of the forces, except for those circumstances specified in article 10. In those circumstances, service includes activities that would otherwise be outside the scope of service in the forces.
20. There is nothing in article 10 to suggest that it is exhaustive of the circumstances in which the activities covered are treated as service. There are drafting techniques that can make that clear if appropriate. If Mr Chamberlain were correct, article 10(1)(a) could have read something like this: ‘Benefit is payable in respect of death occurring during participation in sporting activities if and only if …’
21. Finally, my interpretation explains why article 10 provides that death must be the predominant cause and article 10(7) provides that it must occur on or after 6 April 2005. If article 10 merely made specific provision for particular aspects of service, it would be unnecessary to repeat what was already provided by article 9(1)(b) and (2).
22. It is rational to read article 10 as I have. Looking at its contents, it deals with activities that would not usually be undertaken as part of service in the forces. However, they are activities that are closely related in some way to service and it makes sense that the scheme should be extended to cover them. However, the precise scope of some of the provisions is arbitrary. The 50 mile distance in article 10(5)(c) is the clearest instance. An arbitrary limit is understandable if it is applied to an extension. It is less understandable why there should be an arbitrary exclusion of an activity that would otherwise be part of service.
23. In contrast, it does not seem rational to exclude all possibility of death ever being caused by service in the course of activities covered by article 10. I am sure that will be rare, but it is possible. Take the examples discussed at the hearing. An SAS soldier might be engaged in a sporting activity while gathering intelligence undercover in a foreign country and be killed or injured when his cover was blown. Or a soldier might be asked to provide protection for someone on the way home. The death of soldiers in those circumstances could be caused by service. It would be arbitrary to exclude then from the scope of the scheme. To do so would require clearer wording.
24. My conclusion is that the tribunals were right to decide that the scope of article 9 was not limited by the terms of article 10.
Was service the predominant cause of Sergeant T’s death?
25. The tribunals’ answer to this question was: yes.
26. Causation is an issue of fact. I can only interfere with the tribunal’s conclusion if it went wrong in law. In the circumstances of this case, that means I must be satisfied that the tribunal was not entitled to decide as it did.
27. The tribunals considered whether Sergeant T was on duty at the time of the accident. I agree with them that that was relevant, but not decisive. There is no evidence that the Sergeant was ordered to go to the base immediately. However, I accept that in the military context and culture he was effectively obliged to go. But that does not mean that he was on duty while he travelled there. The more natural analysis is that he was travelling in order to report for duty, not that he was travelling on duty. I suspect, for what it is worth, that if stopped on the way, he would have been more likely to say ‘I can’t stop, I’ve got to get on duty’ rather than ‘I can’t stop, I’m on duty.’
28. However, I do not hold that against the claimants. What has to be shown is a causal link between death and service. As Mr Bond pointed out, the legislation does not use the concept of duty. That seems to me beneficial to claimants, because it broadens the scope of the scheme.
29. In order to decide if service was the predominant cause of death, it is useful to ask: what link is there between Sergeant T’s service and his death? The answer is this. His death occurred while he was in service. It occurred while he was travelling to his place of work. The journey took place when it did because a problem had arisen at work, to which he had to respond. It was preparatory to Sergeant T undertaking his duties. And it was necessary if he was to do that.
30. Looked at in that light, there was little difference between this journey into work and the journey into work on any other day. The only differences were the reason for, and timing of, the journey. In other words, service provided the circumstances in which the accident occurred. I am willing to accept that service was a contributory factor. But it was a minor factor and certainly not the predominant cause of death. The predominant cause of death was the accident.
31. (This is subject to the issue of whether Sergeant T had been called out to an emergency. I deal with that later.)
32. My conclusion is that the tribunals were wrong to decide that service was the predominant cause of Sergeant T’s death.
The meaning of article 10(5)(a)
33. Mr Chamberlain argued that article 10(5)(a) had to be interpreted to read: ‘is travelling from his home or his regular place of work to a place of work other than his regular place of work outside the United Kingdom or back again’.
34. Mr Bond argued that ‘Things should say what they mean and meanings should be taken from what they say.’ Taking that approach, Sergeant T was within article 10(5)(a). When he died, he was travelling from his home to a place of work and that place of work was outside the United Kingdom.
35. My analysis is this. As a convenient shorthand, I will speak of journeys ‘between home and work’.
36. Article 10(4)(b) provides that journeys between home and work are within the scheme if they come within one of the three circumstances in article 10(5). It is convenient to take them in reverse order.
37. Head (c) deals with journeys between the person’s home and regular place of work. It contains detailed conditions and a minimum distance. It contains no geographic limits. On its wording, it applies to journeys within the United Kingdom and outside the United Kingdom.
38. Head (b) deals with journeys between the person’s home and a place of work other than the regular place of work. It is limited to journeys within the United Kingdom. Otherwise, it contains no additional conditions.
39. Head (a) is less clear in its scope. Hence the argument in these cases.
40. Applying Mr Bond’s principle of interpretation, the circumstances of this case fall within head (a). However, to adapt Mr Bond’s terminology, the language has to be interpreted in a legal culture. That involves reading head (a) in its context. That context includes heads (b) and (c).
41. It is relevant to compare the wording of head (a) with head (b). Head (b) contains the limiting words ‘which is not his regular place of work’. It would be surprising if, as Mr Chamberlain argued, words that are express in head (b) had to be implied into head (a). Surprising, but not impossible.
42. It is also relevant to take account of head (c). This contains no geographical limit, in contrast to heads (a) and (b). That suggests that it applies anywhere in the world. If Mr Bond is correct, head (a) by implication confines head (c) to the United Kingdom. Again, that would be surprising, but not impossible.
43. There is a further point on head (c). It contains carefully delineated conditions including a distance of more than 50 miles. If Mr Bond is correct, head (a) bypasses those provisions and brings all journeys between home and work within the scheme, provided that they are not wholly within the United Kingdom. That may be just possible, but it would be very surprising. It introduces an irrational distinction and does not make sense of article 10(5) as a whole.
44. My conclusion is this. Head (c) did not apply to Sergeant T’s journey from home to work. If for no other reason, the distance did not exceed 50 miles. I cannot read head (a) in a way that in effect impliedly adds a geographical limit to the application of head (c). To do so would be inconsistent with the clear geographical limits set in the other heads and would draw an irrational distinction between journeys inside and outside the United Kingdom. Whatever its proper scope, head (a) does not include Sergeant T’s journeys from home to the base that was his regular place of work or back again.
Mr Chamberlain’s argument on article 10(5)(a)
45. For the record, I do not accept Mr Chamberlain’s suggested reading for these reasons. It involves reading in words that are expressed in head (b) and it is unnecessary given my interpretation of head (a). It may also give rise to problems in other cases, as the following examples show.
46. Example 1: A soldier is based in Wrexham, but is posted to Germany. The outward journey is from the soldier’s home or regular place of work. On departure, Wrexham will cease to be the soldier’s regular place of work. That will become the base in Germany. The soldier will be moving from one regular place of work to another. That seems to be a realistic analysis of what happens when a soldier is posted abroad. But reading in the words suggested by Mr Chamberlain could exclude it from head (a). It could be accommodated by other forms of wording. For example: ‘is travelling from his home or his regular place of work to a place of work other than his regular place of work or a new regular place of work outside the United Kingdom or back again’. But this is becoming very cumbersome and there is another problem.
47. Example 2: A soldier is posted to Germany. That is his new regular place of work. The whole family is housed in married quarters on the base. They return to the United Kingdom on leave. In doing so, they are in common parlance going back home. But what is a home for this purpose? The soldier’s family now lives in Germany. They no longer have married quarters in the United Kingdom. If article 10(5) covers journeys to and from the United Kingdom on leave, ‘home’ must be given a more general meaning than particular accommodation or perhaps even a particular locality. There is a further problem. The journey is now from the soldier’s regular place of work in German. It is not ‘back again’ from ‘a place of work other than his regular place of work’. On Mr Chamberlain’s wording, this is outside head (a).
48. I am not saying that it is impossible to overcome these problems with Mr Chamberlain’s suggested wording. I am saying that I prefer to avoid reading in words that are not necessary in these cases and might cause problems in other cases. (I note that article 10 had now been extensively amended from 30 June 2006, so any problems would only apply to the period before that date.)
The meaning of article 10(6)(b)
49. The tribunals decided that Sergeant T had been called out to and was travelling to an emergency.
50. Mr Chamberlain argued that Sergeant T was not called out; he had decided to go to the camp of his own volition. A staff shortage was not an emergency and the civilian staff were available to cook breakfast. Service was not the predominant cause of his death.
51. Mr Bond argued that this provision had to be interpreted and applied in the context of military culture. Breakfast was a parade that all soldiers had to attend. It set them up for the activities of the day. If breakfast was not provided, it would be a serious matter. Within a military culture, Sergeant T was faced with an emergency. He understood that. His discussion with the Head Chef had to be understood in that context. As a senior NCO, the sergeant was entitled to call himself out and onto duty to deal with an emergency.
52. My analysis is this.
53. I do not need to decide whether Sergeant T was ‘called out’, either by the Head Chef or exercising his own initiative. It is sufficient to deal with whether he was responding to an emergency.
54. Emergency is an ordinary English word. It does not have any special meaning in the context of article 10(6). I accept that the word may have shades of meaning according to the circumstances and one circumstance could be military culture. However, the provision is not limited to military emergencies. It could include emergencies affecting the civilian power, for example the recent floods or the earlier foot and mouth outbreak.
55. The tribunal found that Sergeant T was responding to an emergency. I can only disturb that finding if the tribunal went wrong in law. The correct approach to that issue was set out by Lord Hoffmann in Moyna v Secretary of State for Work and Pensions reported as R(DLA) 7/03:
‘24. … The meaning of an English word is not a question of law because it does not in itself have any legal significance. It is the meaning to be ascribed to the intention of the notional legislator in using that word which is a statement of law. It is because of the nature of language that, in trying to ascertain the legislator's meaning, it is seldom helpful to make additions or substitutions in the actual language he has used.’
‘25. … What this means in practice is that an appellate court with jurisdiction to entertain appeals only on questions of law will not hear an appeal against such a decision unless it falls outside the bounds of reasonable judgment.’
56. I have consulted a number of dictionaries to see how they define ‘emergency’. One common feature of the definitions is that an emergency arises from something unexpected. In these cases, the problem that led Sergeant T to bring forward his journey to work was not unexpected. He knew that the chefs under him were unreliable and that the civilian staff were under suspicion. He expected a problem; that was why he rang the base. He may have hoped that everything was going well, but he expected that it might not be.
57. Dictionary definitions are not determinative, because it is difficult to capture every nuance of usage in the varying contexts in which a word may be used. The context here is article 10 and its place in the scheme. It is one of a number of circumstances that are equated with service by a member of the forces for the purposes of payment of benefit on injury or death. That may suggest that the emergency involves an element of danger or requires the particular skills and resources of the military. It certainly suggests that there should be a degree of seriousness in the situation. The tribunals defined an emergency as ‘any sudden event that requires immediate action…’ That is in line with the dictionary definitions. But it is easy to think of circumstances that satisfy that definition without being emergencies, at least not emergencies in this context. Suppose that a button comes off a tunic before an important parade. That would be unexpected and would require immediate action. But that is not the kind of event with which article 10 is concerned. As Mr Chamberlain argued, the problem was essentially one of supervision. There were civilian staff to cook the breakfast. They were under suspicion and ideally required supervision, but they were able to cook. The soldiers on the base would not go hungry. The need for supervision lest stock should go missing was not sufficiently serious to amount to an emergency.
58. I have made such allowance as I can for the military culture. I am prepared to accept that the absence of the other chefs and the doubts about the honesty of the civilian staff were important. I am prepared to accept that for practical purposes Sergeant T had no choice other than to attend at the camp as soon as he could. But that is not enough to make it an emergency in any proper use of the word in this context. What happened was that Sergeant T brought forward his time of departure in order to cope with an urgent problem at the base.
59. My conclusion is that the tribunals were not entitled to find that Sergeant T was faced with an emergency. It was not within the ‘bounds of reasonable judgment’ for the tribunals to find as they did.
Reasons for decision
60. I raised this issue because of my experience of the way in which Pensions Appeal Tribunals have given their reasons in the cases that have come before me. There has been a tendency for chairmen to give fairly limited reasons when deciding the appeal and to supplement them with more detail if one of the parties applies for leave to appeal to a Commissioner.
61. Mr Chamberlain’s analysis of the cases was this. Judges of the High Court were not limited by procedural rules and could supplement their reasons under their inherent jurisdiction: English v Emery Reimbold & Strick Ltd [2002] 3 All ER 385. Tribunals could not supplement their reasons if their procedural rules did not provide for this: Hatungimana v Secretary of State for the Home Department [2006] EWCA Civ 231 at paragraphs 4 to 8. But they could do so if the procedural rules allowed: Barke v SEETEC Business Technology Centre Ltd [2005] EWCA Civ 578. In my jurisdiction, regulation 20(2) of the Social Security Commissioners (Procedure) Regulations 1999 gave me power to
‘direct the tribunal to submit a statement of such facts or other matters as he considers necessary for the proper determination of that application or appeal.’
However, the reasons had to be those of the tribunal and not of the chairman.
62. Mr Chamberlain applied this analysis in this way. I had not exercised my power under regulation 20(2). The chairman had presented the additional reasons given on refusing leave to appeal as his reasons. He did not claim that they were those of the tribunals he had chaired.
63. Mr Bond did not wish to address me on this. I asked him about his experience and he said that he found the tribunals were generally good at providing their reasons for deciding as they did. He added that if in the circumstances of a case the outcome was not in doubt, there was nothing to be served by having a rehearing.
64. My analysis is this. It relates to decisions generally and is not specifically directed at these cases. They had a special feature in that Mr Bond had drawn the chairman’s attention to a decision by the Veterans Agency in a similar case, which he commented on in detail.
65. I accept Mr Chamberlain’s argument. A tribunal’s reasons fulfil a number of functions. One is to provide the parties with information to decide whether there are grounds for an appeal. They cannot do that effectively if the tribunal does not given them its full reasons. The time to give those reasons is when the decision is made. When an application for leave to appeal is made, it may be appropriate to comment on the grounds. However, it is not the occasion to provide additional reasons that the tribunal had when it made the decision but did not disclose to the parties at the time. On those occasions when it is permissible and proper to provide additional reasons, they must be those of the tribunal as a whole and not those of the chairman.
66. Strictly speaking, therefore, additional reasons that are not properly given are not the tribunal’s reasons and cannot remedy any inadequacy in the reasons originally promulgated. However, I accept Mr Bond’s comment that rehearings are not appropriate if they serve no purpose. The Commissioner will have seen the additional reasons and may take them into account in deciding how to dispose of the appeal. The parties will also have seen them and may decide, in the light of them, not to pursue the case.
The other decision by the Veterans Agency
67. Mr Bond referred to a decision by the Veterans Agency in another case. The claimant had given her written consent for the particulars of her case to be disclosed and discussed. It is not relevant for me to deal with that case. My function is to interpret the law and decide how it should be applied. The way in which the decision-maker has interpreted and applied the law in a particular set of circumstances would not assist me in that.
68. I should record that Mr Chamberlain assured me that the circumstances in the other case were distinguishable. For the reasons I have given, it was not necessary for him to explain how.
Conclusion
69. Mr Bond began by saying that he was not a lawyer but a simple soldier. I was not deceived for long. He went on to construct an argument for the interpretation of articles 9 and 10 in the context of military culture, relying on the historical development of what is now called the Military Covenant. This is described on the Army’s website (www.army.mod.uk) as:
‘the mutual obligation between the Nation, the Army and each individual soldier; an unbreakable common bond of identity, loyalty and responsibility which has sustained the Army throughout its history.’
70. In general terms, it was a persuasive argument. But I have to give primacy to the language of the legislation. The drafting could have made clearer how the legislation applied to the circumstances of these cases. But that is not unusual. Applying ordinary principles of interpretation, the language is only open to one meaning. It is understandable that the tribunals would wish to bring the death of a conscientious soldier within the scheme for the benefit of his families. But with the best will in the world, the terms of the legislation do not allow that.
71. Finally, I should record that Mr Bond cited to me the case of Secretary of State for Defence v the Pensions Ombudsman and Cheryl Hulme [2003] EWHC 713 (Ch) and, on appeal, Secretary of State for Defence v Cheryl Hulme [2003] EWCA Civ 1611. I have read the judgments, but I have not found anything that leads to a different conclusion on the interpretation of articles 9 and 10.
Disposal
72. I allow the appeals and set aside the tribunals’ decisions. In that eventuality, both Mr Chamberlain and Mr Bond preferred that I should substitute the decisions that the tribunals should have given rather than direct rehearings. That is what I have done.
Signed on originalon 12 December 2007
Edward JacobsCommissioner
CDLA/884/2008
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. I allow the claimant’s appeal against the decision of the Southampton appeal tribunal dated 6 November 2007. I set aside that decision and substitute a decision to the effect that the decision of the tribunal dated 7 March 2007 is not superseded. Accordingly, the claimant remains entitled to the higher rate of the mobility component and the lowest rate of the care component of disability living allowance from 7 July 2006 to 6 July 2008. (The award is effective only until yesterday and so, if the claimant wishes payments to continue, he should make a new claim immediately. Equally, the Secretary of State may still consider superseding the decision of the tribunal dated 7 March 2007, if he wishes to do so in respect of the mobility component or the lowest rate of the care component entitlement to which I have not formally considered, before paying to the claimant the arrears otherwise due under my decision.)
REASONS
2. On 2 October 2006, the Secretary of State awarded the claimant the higher rate of the mobility component of disability living allowance for the period from 7 July 2006 to 6 July 2008 but refused to award the care component. After an unsuccessful application for revision, the claimant appealed and, on 7 March 2007, a tribunal awarded the lowest rate of the care component, in addition to the mobility component and for the same period.
3. On 29 March 2007, the claimant applied for supersession on the ground that his condition had deteriorated since, presumably, 2 October 2006 and that he qualified for the middle rate of the care component as well as the higher rate of the mobility component. On 29 May 2007, the Secretary of State refused to supersede the tribunal’s decision. The claimant appealed. This was not a success. Rather than increasing the award, the second tribunal took it away altogether, deciding on 6 November 2007 that the claimant was not entitled to either component with effect from 29 March 2007. The claimant now appeals against the tribunal’s decision with my leave.
4. The claimant’s grounds of appeal were to the effect that he had written to the Department for Work and Pensions on 2 September 2007, asking them to provide the tribunal with copies of earlier letters he had written on 8 August 2007 and 29 August 2007. The Secretary of State has not been able to find any copy of those letters and the claimant has neither supplied the recorded delivery reference numbers nor explained why either of the letters written in August might have made any difference to the tribunal’s decision. Accordingly, I do not accept this ground of appeal.
5. In an application for the setting aside of the tribunal’s decision, the claimant raised a number of other matters. However, insofar as they are challenges to the tribunal’s findings of fact, they are immaterial to this appeal, because an appeal to a Commissioner lies only on a point of law (see section 14(1) of the Social Security Act 1998). Insofar as they raise procedural issues, they are relevant to the grounds upon which I granted leave to appeal and which I shall consider below. I am satisfied that, insofar as the tribunal decided that the claimant was not entitled to the middle rate of the care component, it did not err in law. It simply did not accept the claimant’s evidence, for reasons it has given. It was entitled to take that view of the case.
6. I granted leave to appeal on two grounds. The Secretary of State accepts that the tribunal erred in both respects and his representative, Mr Wayne Spencer, has added some further points in his helpful submission.
7. I am satisfied that, among other errors to which I shall refer below, the tribunal erred in law in failing to explain why it decided to consider entitlement to the mobility component and to the lowest rate of the care component when such entitlement was not in issue between the parties (see paragraph 94 of R(IB) 2/04 and section 12(8)(a) of the Social Security Act 1998) and also in superseding the existing award on the ground of change of circumstances with effect from 29 March 2007, rather than either 29 May 2007 (see paragraph 97 of R(IB) 2/04 and section 10(5) of the 1998 Act) or some earlier date (if the condition of regulation 7(2)(c)(ii) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (S.I. 1999/991), which the tribunal failed to consider, was satisfied).
8. An increasing number of appeals before Commissioners seem to be cases where a tribunal has made a decision less favourable to the claimant than the one the claimant was challenging before the tribunal. It is not surprising that appeals should be brought before Commissioners in such cases, particularly as the consequence of any such decision is that there will have been an overpayment, the recoverability of which will have been left undetermined by the tribunal. Tribunals need to be aware of the dangers of being both prosecutor and judge, one of which is the risk of making errors unprompted by the parties. Such errors are too common and are contributing significantly to the caseload of Commissioners. It is particularly unfortunate that two of the several errors made by the tribunal in the present case were on points in respect of which a Tribunal of Commissioners had relatively recently given clear guidance.
9. There are other risks in being both prosecutor and judge. The most obvious is that there can be a perception that the tribunal has prejudged the case. Of course a tribunal has an inquisitorial or investigative role but here it is noteworthy that the tribunal, having apparently formed the (not unreasonable) view on the papers that the claimant’s entitlement to any disability living allowance was doubtful, started the proceedings by warning the claimant that his existing award was at risk and advising him that he could withdraw his appeal. The claimant having declined to withdraw his appeal, the tribunal then launched straight into the question of the claimant’s entitlement to the mobility component, by questioning him about how he had got to the hearing, without first listening to what the claimant had to say about his needs for care which was the issue upon which he had brought his appeal. It is little wonder that the claimant says, in effect, that he formed an early view that the tribunal was more interested in its own agenda than in what he had to say.
10. Mr Spencer also points out that it is not necessarily enough for a tribunal to warn a claimant that his existing award is at risk and give him the opportunity to withdraw his appeal. He refers me to paragraph 94 of the Tribunal of Commissioners’ decision, in which they said that it was necessary that “the claimant has sufficient notice of the tribunal’s intention to consider superseding adversely to him to enable him properly to prepare his case.” Here, the claimant had no advance notice of the possible case against him in respect of either the mobility component or the lowest rate of the care component and there is no indication that it was explained to him that the risk to his existing award was not merely theoretical. As the mobility component and the lowest rate of the care component had not been in issue, the grounds upon which they might be awarded were not mentioned in the Secretary of State’s submission to the tribunal. Nor was there any reason of which I am aware as to why the claimant should have thought that any ability to walk further than 50 to 100 yards might be regarded as fatal to his entitlement to the mobility component. Even if, as the tribunal found, he had exaggerated his disability in his claim form, it does not necessarily follow that he should have realised that he was not fully entitled to disability living allowance at the rate awarded. A tribunal is in a difficult position. If it gives the claimant too robust a warning at the beginning of a hearing, it runs the risk of giving the impression of having prejudged the case. If it does not give such a robust warning, the warning may not adequately convey to the claimant the case he or she needs to consider resisting with the consequence that a decision not to withdraw the appeal, or not to ask for an adjournment, is not fully informed. This is a powerful reason for tribunals refraining from making decisions less favourable to claimants than the decisions being challenged, except in the most obvious cases (e.g., where the evidence is overwhelming or the facts are not in dispute and no element of judgment is involved or where the law has been misapplied by the Secretary of State) or after an appropriate adjournment. In such obvious cases, a failure expressly to state why a tribunal has considered a point not in issue between the parties will not necessarily render the tribunal’s decision erroneous in point of law; in less obvious cases, the absence of a reason for considering the point may suggest that the discretion to do so has not been exercised properly.
11. If a tribunal does not consider the correctness of an award that is not directly in issue before it, it does not follow that it should do nothing if it has doubts about the award. The chairman is at liberty to draw the doubts to the Secretary of State’s attention in the decision notice and can arrange for the parties to be sent a copy of the record of proceedings (including his or her note of evidence) without them having to request it. That would enable the Secretary of State to consider a supersession or revision and, in disability living allowance cases, would often avoid the possibility of there having been an overpayment, which is often a consequence of a tribunal considering the issue and which often worries claimants more than the mere cessation of entitlement.
12. In the present case, Mr Spencer asks me to refer the case to another tribunal. However, I consider that I should give my own decision. As I am satisfied that the tribunal did not err in law in refusing to supersede the decision of 7 March 2007 in the claimant’s favour so as to award the middle rate of the care component of disability living allowance, I can easily give a decision adopting the tribunal’s conclusion on that issue. The real question is whether it is necessary to refer the case to another tribunal to consider whether the tribunal decision of 7 March 2007 should be superseded adversely to the claimant. (If the tribunal siting on 7 March 2007 did not consider entitlement to the mobility component, the decision that was the one that might be superseded in respect of the mobility component was presumably the Secretary of State’s decision of 2 October 2006, but nothing turns on the point and I refer only to the tribunal’s decision for the sake of simplicity.) Mr Spencer has not given any indication as to the Secretary of State’s current position as regards such a supersession but the Secretary of State has never sought a supersession in his own favour. I am satisfied that consideration should not be given in these proceedings to entitlement to either the mobility component or the lowest rate of the care component, for reasons I will now explain.
13. One consequence of the last tribunal having rushed to deal with issues upon which the Secretary of State had not made any submission was that it appears to have got the chronology hopelessly wrong and then failed to ask itself the right questions. Although the statement of reasons records, under the heading “History of the Claim”, that the lowest rate of the care component was awarded by a tribunal sitting on 7 March 2007, under the heading “The Law” it records that the case before the tribunal was an application for supersession of a decision of “the tribunal of 7th July 2006” and the reasoning is based upon a finding that “the appellant’s condition was considerably improved from that described in the original application”, which was made on 7 July 2006.
14. The chronology is important because, at least in relation to the lowest rate of the care component, the starting point had to be the decision of the tribunal of 7 March 2007. Although a decision of a tribunal may be superseded on the ground of a change of circumstances since it took effect (see regulation 6(2)(a)(i) of the 1999 Regulations), it has been held by a Tribunal of Commissioners in R(IS) 2/08 that there should be no supersession on this ground where the change took place before the date of the decision being superseded and the relevant decision-maker knew of the current circumstances and could have taken the change into account. Not only could the tribunal sitting on 7 March 2007 have taken account of changes of circumstances up to 2 October 2006 (see section 12(8)(b) of the 1998 Act), but also it could not properly have awarded the care component unless satisfied that at 2 October 2006 the claimant was likely to continue to satisfy the conditions of entitlement until at least 7 January 2007 (see section 72(2)(b)(i) of the Social Security Contributions and Benefits Act 1992). Therefore, the tribunal sitting on 6 November 2007 actually had to be satisfied that either there had been a material change of circumstances between 7 January 2007 and 29 May 2007 (not 29 March) or else there had been one before 7 January 2007 but to which the tribunal sitting on 7 March 2007 could not give effect because, at 2 October 2006, the change was not likely. Moreover, it would have been appropriate to consider whether, if the tribunal sitting on 7 March 2007 had thought that the claimant had ceased to satisfy the conditions at the date of its decision, it was probable that that tribunal would have made an award in the terms it did without mentioning on the decision notice that the conditions of entitlement were no longer satisfied. If supersession on the ground of change of circumstances was not appropriate, the tribunal sitting on 6 November 2007 could have considered whether the decision of the tribunal sitting on 7 March 2007 was given in ignorance of, or was based on a mistake as to, a material fact (see regulation 6(2)(c)(i)).
15. Had it asked itself the right questions, it would have adverted to the fact that it had neither the record of proceedings before the tribunal of 7 March 2007 nor a statement of reasons. It could have ascertained whether there had been an oral hearing before that tribunal and, if so, whether the file had been destroyed or whether the record of proceedings could still be obtained. But, in any event, it is likely to have concluded that supersession of the award in favour of the claimant on the ground of change of circumstances was probably unrealistic, given the true chronology, and that due deference to the decision of 7 March 2007 made supersession on the ground of ignorance or mistake difficult on the material available, unless the tribunal’s decision had been made on the papers. The reason why it might have been different if the decision had been made on the papers is that it seems likely that the decision would have been made on the basis of the assertions made by the claimant in his grounds of appeal to the tribunal sitting on 7 March 2007 and the tribunal sitting on 6 November 2007 would have been entitled to take the view that those assertions were not accurate in the light of its own findings.
16. Similar, but nonetheless slightly different, considerations apply in respect of the mobility component. Reference was made to the mobility component in the decision notice issued by the tribunal on 7 March 2007. It does not necessarily follow that the tribunal sitting on that date actually considered that component, which presumably was not in issue before it but, equally, it is quite possible that the tribunal did consider entitlement to the mobility component but decided nonetheless to confirm the Secretary of State’s decision. If it did consider entitlement to the mobility component, it again seems unrealistic to suggest supersesssion on the ground of a change of circumstances and, in the absence of the record of proceedings or a statement of reasons for the tribunal’s decision, there is certainly insufficient material to justify supersession on any other ground. If the tribunal did consider the mobility component but the decision was made on the papers, which seems unlikely, or if it did not consider the issue at all but accepted the decision the Secretary of State had made on 2 October 2006 on the papers, I am still doubtful as to whether there were really grounds for supersession. The finding made by the tribunal on 6 November 2007 that the claimant had walked 120 metres to the tribunal venue, with a stop after 100 metres and then some stumbling does not show that the claimant necessarily was not entitled to the mobility component at the higher rate. Had this been a new claim, the tribunal might have been quite entitled to take the view that the claimant was not entitled to the mobility component, but, whether or not supersession could be justified, this seems to be the sort of borderline case where the tribunal should not have embarked upon consideration of the existing award when it was not asked to do so. This is particularly so given that evidence from the claimant’s general practitioner, upon which the tribunal placed some weight, had been available to the Secretary of State before he had made his submission to the tribunal.
17. In declining to refer this case to another tribunal, I am mindful that, although the Secretary of State may still supersede the decision of the tribunal of 7 March 2007 in respect of the mobility component and the lowest rate of the care component, any such supersession will now have practical effect only if he can show that regulation 7(2)(c)(ii) or regulation 7(5)(b) of the 1999 Regulations applies. However, I am also mindful of the fact that, if I referred the case to another tribunal, the claimant could deprive the tribunal of jurisdiction through the simple expedient of withdrawing his appeal. As I am fairly firmly of the view that the last tribunal should not have interfered with the claimant’s award of the mobility component and should have considered the claimant’s entitlement to the care component only if the decision of 7 March 2007 had been made on the papers, in which case regulation 7(5)(b) of the 1999 Regulations may well apply if the Secretary of State wishes to pursue the issue, I do not consider that I am depriving the Secretary of State of anything valuable and I may be saving both him and the Tribunals Service a certain amount of trouble.
18. Accordingly, I simply restore the Secretary of State’s original decision of 29 May 2007 (although I correct the date mentioned in the decision, which I think probably refers to the date on which the tribunal’s decision of 7 March 2007 was implemented). Arrears will be due to the claimant unless the Secretary of State now supersedes the decision of 7 March 2007 in the light of the findings of the tribunal that sat on 6 November 2007 (which are not binding). I do not encourage him to do so in respect of the mobility component but he may well wish to consider doing so in respect of the lowest rate of the care component if the decision of 7 March 2007 was given on the papers, although he would have to consider section 72(1)(a)(i) of the 1992 Act as well as section 72(1)(a)(ii). The clerk to the tribunal would be able to use the GAPS computer records to tell him whether or not that hearing was on the papers. I express no view as to the decision that should be made if the claimant now makes another claim.
19. I make two final observations. The first is that, where a claimant applies for supersession shortly after a tribunal has made a decision following an oral hearing, the Secretary of State might find it useful to ask the clerk to the tribunal to send both parties a copy of the record of proceedings (which will contain a note of the evidence given to the tribunal and which the clerk is bound to keep for at least six months after the date of the decision (see regulation 55 of the 1999 Regulations)). If the application for supersession is received early enough (i.e., within a month of the tribunal’s decision notice being issued – see regulation 53(4) of the 1999 Regulations), he could also ask for a statement of the tribunal’s reasons.
20. Secondly, the Secretary of State has wide powers to supersede decisions of tribunals but exercises them with restraint, particularly as regards allegations of ignorance or mistake. He is right to do so because, while it is important not to perpetuate obvious injustice, it is also important that there be finality in decision-making. It is particularly important that he should not regularly reverse decisions of tribunals that have themselves reversed his decisions, because that would undermine the whole appeal system. In my judgment, tribunals should accord a similar degree of respect to each other’s decisions and should, in particular, be slow to supersede the decision of another tribunal given following an oral hearing when it has not been asked by any party to do so.
(signed on the original) MARK ROWLAND
Commissioner
7 July 2008
THE SOCIAL SECURITY COMMISSIONERS
Commissioner’s Case No: CDLA/1000/2001
SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT 1992
SOCIAL SECURITY ADMINISTRATION ACT 1992
SOCIAL SECURITY ACT 1998
APPEAL FROM A DECISION OF AN APPEAL TRIBUNAL ON A QUESTION OF LAW
DECISION OF THE SOCIAL SECURITY COMMISSIONER
MR COMMISSIONER JACOBS
Decision:
1. My decision is as follows. It is given under section 14(8)(b) of the Social Security Act 1998.
1.1. The decision of the North Shields appeal tribunal, held on 12th December 2000, is erroneous in point of law.
1.2. I set it aside and remit the case to a differently constituted appeal tribunal.
1.3. I direct that appeal tribunal to conduct a complete rehearing of the issues that arise for decision.
The appeal to the Commissioner
2. This is an appeal to a Commissioner against the decision of the appeal tribunal brought by the claimant with the leave of a district chairman. The Secretary of State supports the appeal.
The history of the case
3. The claimant was awarded a disability living allowance consisting of the mobility component at the higher rate from and including 7th March 1994.
4. In 1997, he applied for a review with a view to the care component being included in the award. A factual report was obtained from his GP and the care component was awarded at the lower rate from and including 21st September 1997.
5. In January 2000, the claimant hoped that the award of the care component might be increased to a higher rate. The review and revision procedures had by this time been repealed. So, he requested a supersession under the new adjudication procedures and completed a claim pack. A hospital report was obtained and the Secretary of State decided that the claimant was not entitled to the care component from and including 24th March 2000, the date of the hospital report.
6. The claimant appealed against that decision to an appeal tribunal. The first hearing of the appeal was adjourned for a report to be obtained from an examining medical practitioner. The claimant was warned that the mobility component might be removed by the appeal tribunal. At the resumed hearing on 12th December 2000, the tribunal reinstated the care component at the lowest rate until 23rd March 2003, but terminated the award of the mobility component from and including the date of the hearing.
Special protection for life awards
7. The award of the mobility component that was terminated by the appeal tribunal was made for life. Under the review and revision provisions in the Social Security Administration Act 1992, there was special protection for life awards: see sections 32(4) and 3(6). Those provisions were repealed by the Social Security Act 1998 and there is no equivalent in the revision and supersession provisions.
8. The claimant’s representative argues that the claimant remains entitled to the protection for his life award. I reject that argument. It can only be based on section 16(1)(c) of the Interpretation Act 1978. That provision gives way to a contrary intention. I find a contrary intention in the case of the special protection for life awards.
8.1. First, although it was additional to the need to show grounds for review, it was an integral part of the review and revision provisions: see the decision of Mr Commissioner Mesher in CDLA/7482/1999, paragraph 26. There can be no doubt that the review and revision provisions do not survive so as to apply in this case. So, it can hardly be that an integral part of them does survive.
8.2. Second, there is no reference to it in the transitional provisions that governed the change to the new adjudication procedures. It would be surprising if it were to survive, despite not being mentioned in those detailed provisions. This is especially so, given its close connection with the review and revision procedures, which clearly do not survive.
Section 12(8) of the Social Security Act
9. Section 12(8) contains two provisions that are relevant to this case.
‘In deciding an appeal under this section, an appeal tribunal-
(a) need not consider any issue that is not raised by the appeal; and
(b) shall not take into account any circumstances not obtaining at the time when the decision appealed against was made.’
Section 12(8)(a)
10. The mobility component had not been considered by the Secretary of State in the decision under appeal. Nor was it mentioned in the claimant’s letter of appeal. However, the tribunal dealt with it on its own initiative. That raises two questions. Was the claimant’s entitlement to the mobility component ‘raised by the appeal’? If it was, did the tribunal properly exercise its discretion to deal with it?
11. Was entitlement to the mobility component raised by the appeal? I refrain from attempting a comprehensive definition of ‘raised by the appeal’ beyond saying that this question is not determined just by the wording of the letter of appeal. It must be answered by reference to the substance of the appeal. The claimant had completed a claim pack in January 2000. In that pack, he attributed his difficulties to epilepsy, arthritis, peripheral neuropathy and pernicious anaemia. His account of his mobility difficulties showed that they were related to his arthritis and, possibly, also to his peripheral neuropathy. His account of his care needs showed that some, although not all, were also related to those conditions. So, it was impossible for the tribunal to consider the care component without also considering the basis of the award of the mobility component. The two were inseparable. In those circumstances, the claimant’s entitlement to the mobility component was raised by the appeal.
12. Did the tribunal exercise its discretion properly? I have dealt with this question in relation to this provision and its equivalent in the Child Support Act 1991 in two decisions: CI/531/2000, paragraphs 10 to 14 and CCS/463/2000, paragraphs 15 to 24. I made four points that are relevant to this case: (a) section 12(8)(a) conferred a discretion; (b) it had to be exercised judicially; (c) an exercise that was in breach of natural justice was not judicial; (d) natural justice required that a claimant have notice that a point was to be considered and a chance to deal with it.
13. In this case, the claimant was warned that his award of the mobility component might be at risk. At the resumed hearing, the claimant’s representative challenged the tribunal’s right and power to consider the mobility component. So, there was no breach of natural justice. The tribunal was entitled to exercise its discretion to consider entitlement to the mobility component.
Section 12(8)(b)
14. Under the adjudication scheme in the Social Security Administration Act 1992, tribunals often took a practical approach to the termination of awards. If there was no question of any overpayment being recoverable, it was common for a tribunal to base its decision on a supposed change of circumstances that occurred on the date of the hearing. That was, of course, a fiction, but it was a convenient approach. It saved the tribunal from investigating unnecessary details, especially as the claimant was unlikely to provide information to assist its inquiries.
15. That was obviously the approach that was taken by the tribunal in this case. I directed the Secretary of State to make observations on the question whether it could be reconciled with section 12(8)(b). the Secretary of State submits that it cannot. The claimant’s representative does not comment directly on the issue.
16. I accept the Secretary of State’s submission. If there really was a change of circumstances on the date of the hearing, it was a circumstance that was not obtaining at the date of the decision under appeal; it was outside the tribunal’s jurisdiction. If there was a circumstance obtaining at the date of the appeal over which the tribunal had jurisdiction, the effective date of the termination of the award had to be fixed under regulation 7 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999; it could not be the date of the hearing.
17. I regret this conclusion. The approach taken by the tribunal was a convenient one. Unfortunately, it cannot be reconciled with the limitations on the tribunal’s jurisdiction that is imposed by section 12(8)(b).
Summary
18. The decision of the appeal tribunal is wrong in law and must be set aside. Further investigation of the facts is needed and a rehearing is appropriate so that that can be undertaken by experienced panel members. I make no comment on the merits of the appeal; they are a matter for the tribunal to determine at the rehearing.
19. To avoid any misunderstanding, I make this final point. The whole of the claimant’s entitlement to a disability living allowance is open for consideration at the rehearing. That includes the award of the care component at the lowest rate that was made by the tribunal on 12th December 2000. That award is not ‘in the bank’ and may not be repeated at the rehearing.
Signed on original
Edward Jacobs
Commissioner
18th September 2001
DECISION OF THE SOCIAL SECURITY COMMISSIONER Commissioner’s Case No: CIS/2292/2000
1. My decision is that the decision of the tribunal is erroneous in point of law. I set aside the decision of the tribunal and, since it is not expedient for me to make the findings which are necessary to decide what decision the tribunal should have given, I refer the case for rehearing before a differently constituted tribunal.
2. This is an appeal from the decision of the tribunal given on 21 February 2000, dismissing the claimant’s appeal against the decision of the adjudication officer issued on 24 September 1998 that the claimant was liable to repay income support amounting to £1,368.69 paid during the period 1 December 1997 to 6 August 1998 because she had failed to disclose that she was living with a partner who was in full-time remunerative employment.
3. The claimant was in receipt of income support on the basis of a claim made on 1 December 1997, in which she stated that she was separated from her husband. The claimant also stated in a case check statement made on 29 January 1998 that she and her husband had separated six months previously, but on 16 April 1998 the Benefits Agency received information from the claimant’s husband’s employer that he was living at the claimant’s address. On 19 August 1998 a fraud investigation was carried out, as a result of which the claimant wrote stating that she did not wish to claim income support from 20 June 1998. However, on the basis of the information obtained during the fraud investigation, which included a raid on the claimant’s house, it was decided that the claimant and her partner had been living together as husband and wife from 1 December 1997 and that, accordingly, she was not entitled to income support from that date.
4. On the basis of the review decision, a further decision was made on 24 September 1998 that the sum of £1,368.69 paid in income support from 1 December 1997 to 6 August 1998 was recoverable from the claimant under section 71 of the Social Security Administration Act 1992, because the claimant had failed to disclose on 1 December 1997, or as soon as possible afterwards, that she was living with a partner in full-time remunerative employment. In her letter appealing against that decision, dated 21 October 1998, the claimant accepted that she was liable to repay part of that amount, but stated that her partner had only returned to the matrimonial home on a full-time basis on about 20 June 1998.
5. At the date of the appeal hearing the claimant was in prison, and the record of proceedings shows that her representative applied for an adjournment for that reason. The representative is recorded as stating that he could not get instructions, did not know when the claimant would be released, and that the claimant had been refused permission to attend the appeal hearing. The record of proceedings also indicates that the adjournment request was refused, although no reasons for the refusal are given either in the record of proceedings or in the statement of reasons. However, the statement of reasons does record that the claimant’s representative had not spoken to the claimant for over a year.
6. The documents seized in the raid in August 1998 included the claimant’s diary. On the basis of diary entries suggesting a continuing relationship between the claimant and her partner, the discovery of the claimant’s partner’s possessions in the master bedroom of the claimant’s house, and information supplied by the claimant’s daughter and her boyfriend, the tribunal found that the claimant and her partner had been living together as husband and wife throughout the period in respect of which the review and recoverability decisions had been made. The tribunal therefore dismissed the appeal, although they based their recoverability decision on misrepresentation, rather than on failure to disclose a material fact.
7. The claimant appealed against the tribunal’s decision on the ground that the tribunal had erred in law in refusing to adjourn the hearing to allow her to attend, and on the further ground that the tribunal had erred in finding that the claimant and her partner were living together in December 1997 on the basis of evidence of the situation as it was in August 1998. I granted leave to appeal on 12 March 2001 because I considered it to be arguable that the tribunal’s failure to adjourn the hearing was unfair in the circumstances of the case, and also because I considered it arguable that the tribunal’s findings with regard to the periods when the claimant’s husband was living away from the claimant were not sufficiently detailed. I also raised the question of whether the constitution of the tribunal was in accordance with regulation 36 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999, but I am satisfied, for the reasons given by the Secretary of State’s representative in his submission of 3 May 2001, that there is nothing in that last point.
8. The Secretary of State’s representative has submitted that the decision whether to adjourn the hearing was one which lay entirely within the discretion of the tribunal. It is clear that the tribunal considered the claimant’s representative’s application for an adjournment and, it is submitted that there is nothing to indicate that the discretion whether to grant or refuse an adjournment was exercised in an improper manner. The Secretary of State also submits that, if the claimant was refused permission by the prison authorities to attend the hearing, there was no unfairness because it was open to her to write to her representative in order to give him instructions in connection with the conduct of the appeal.
9. The power to adjourn an oral hearing conferred on a tribunal by regulation 51(4) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 is unfettered, and in Jacobs v. Norsalta Ltd [1977] ICR 189 the Employment Appeal Tribunal said of the equivalent power of industrial tribunals (as they were then called):
“We accept, of course, that the power…must not be used arbitrarily or capriciously. It must certainly not be used in order to defeat the general object of the legislation. But subject to that, it seems to us that the industrial tribunal has a complete discretion, so long as it exercises it judicially, to postpone or adjourn any case provided there is a good reasonable ground for so doing.”
In Bastick v. James Lane (Turf Accountants) Ltd [1979] ICR 778 the Employment Appeal Tribunal set out the circumstances in which a tribunal chairman’s decision refusing to postpone a hearing could be reversed:
“Either we must find, in order so to do, that the tribunal, or its chairman, has taken into account some matter which it was improper to take into account or has failed to take into account some matter which it was necessary to take into account in order that the discretion might be properly exercised; or, alternatively if we do not find that, that the decision which was made by the tribunal, or its chairman, in the exercise of its discretion was so far beyond what any reasonable tribunal chairman could have decided that we are entitled to rejected it as perverse.”
Those statements were approved by the Court of Appeal in Carter v. Credit Change Ltd [1980] 1ALL ER252., and I can see no reason why the same principles should not also apply to the equivalent power conferred on Appeal Tribunals by regulation 51 of the Decisions and Appeals Regulations. Accordingly, I propose to consider whether the tribunal in this case took into account an irrelevant matter, failed to take into account a relevant matter, or came to a conclusion which was perverse in refusing to adjourn the hearing at the request of the claimant's representative.
10. The difficulty in deciding that question is that the tribunal did not state its reasons for refusing the adjournment request, either in the record of proceedings, or in the statement of reasons. In CDLA/3680/1997 (*59/98) it was held that the record of proceedings should note any consideration of whether to grant an adjournment, and also the reasons for refusing it where a tribunal decides to proceed. In a case where no reason for refusing an adjournment is given by a tribunal, it may be more difficult for an appellate body to be satisfied that relevant considerations have been taken into consideration than in a case where the reasons for the refusal to adjourn have been given.
11. The substantive issue before the tribunal was whether the claimant and her partner had been living together as husband and wife for part or all of the period from 1 December 1997 to 6 August 1998. The claimant contended that her partner had moved back into the matrimonial home only in June 1998, and conceded her liability to repay income support paid to her after that date. There was admittedly strong evidence that cohabitation resumed at an earlier date, but that evidence was not conclusive and the inferences drawn from the evidence by the decision maker were specifically disputed.. The claimant’s oral evidence could therefore clearly be expected to play an important part in the proper determination of her appeal, and, whilst it was open to the tribunal in the exercise of its discretion to refuse the adjournment request, there would therefore need to be powerful considerations in favour of proceeding with the hearing in order to justify that course. The tribunal’s failure to identify any such considerations leads me to conclude that the tribunal did not properly take into account the risk of prejudice to the claimant resulting from the hearing proceeding in her absence and that, accordingly, the exercise of the tribunal’s discretion was vitiated by their failure to take into account a matter which it was necessary for them to take into account in deciding whether to grant the adjournment application. I am therefore satisfied that the tribunal’s decision was erroneous in point of law and that, accordingly, this appeal must be allowed. In those circumstances, I do not consider that it is necessary to consider the other ground of appeal raised by the claimant, or by me when granting leave.
12. It is clearly not possible for me to make the findings of fact which are necessary to determine whether the claimant and her husband were living together as husband and wife during the relevant period and, accordingly, I refer the case for rehearing before a differently constituted tribunal. For the reasons which I have given, it is extremely desirable that the claimant should attend at the rehearing of the appeal.
(Signed) E A L Bano
Commissioner
(Date) 22 March 2002
[2007] NISSCSC C1_06_07(AF) (16 March 2007)
Decision No: C1/06-07(AF)
SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992
SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998
NAVAL, MILITARY AND AIR FORCES ETC (DISABLEMENT AND DEATH)
SERVICE PENSIONS ORDER 1983
ARMED FORCES
Appeal to a Pensions Appeal Commissioner
on a question of law from a Pensions Appeal Tribunal's decision
dated 15 September 2005
DECISION OF THE PENSIONS APPEAL COMMISSIONER
1. This is an appeal, leave having been granted by a Commissioner, by the appellant against a decision dated 15 September 2005 of a Pensions Appeal Tribunal (PAT) sitting at Belfast. The PAT was dealing with an appeal against a decision of the Secretary of State refusing to award the appellant an allowance in respect of wear and tear on clothing under Article 17 of the Naval, Military and Air Forces Etc (Disablement and Death) Service Pensions Order 1983 (as amended) (SPO). The tribunal disallowed the appeal.
2. The appellant had claimed the said allowance on the basis that he suffered exceptional wear and tear of his clothing (which he submitted included handkerchiefs) because of the disablement of hay fever/respiratory tract infections and bladder problems. Hay fever was a condition accepted as attributable to service as were acute upper respiratory tract infections (1977-2001). The appellant had various other conditions accepted as either due to or aggravated by service. Included as part and parcel of the accepted conditions were (amongst others) non-specific urinary symptoms and subjective breathing difficulties which were considered to be part and parcel of the accepted condition of post-traumatic stress disorder. Allergic conjunctivitis was considered as part and parcel of hay fever. Conditions which were formally rejected as being unconnected with service were, amongst others, vitreous floaters, bladder pathology and acute upper respiratory tract infections (post 2001).
3. Article 17 of the SPO, so far as relevant to this case provides as follows:
“(1) A member of the armed forces who is in receipt of retired pay or a pension may be awarded an allowance in respect of wear and tear of clothing at the rate specified in paragraph 5 of Part IV of Schedule 1, where either –
(a) … [not relevant];
(b) the Secretary of State is satisfied that as a result of the disablement which gives rise to an award under this Order there is exceptional wear and tear of the member’s clothing.”
4. The Secretary of State had rejected the claim on the basis that the hay fever and respiratory tract infections were assessed at 1-5% and nil respectively. He was of the opinion, in light of that, that those accepted conditions were not severe enough to cause wear and tear of handkerchiefs which in his opinion were not clothing in any event. He also rejected the claimant’s evidence that he on occasions used his shirts and T shirts to wipe his nose. As regards the bladder problem, bladder pathology was a non-accepted condition. Non-specific urinary symptoms were accepted as part and parcel of post- traumatic stress disorder, the assessment of which remained at 6-14%. The Secretary of State was still of the opinion that the condition was not severe enough to cause excessive wear and tear of the appellant’s underpants, trousers and shirts. In the Secretary of State’s opinion there was no reason why the appellant’s accepted conditions should cause excessive wear and tear of his clothing. His claim for clothing allowance was therefore disallowed.
5. The appellant appealed to the PAT which disallowed the appeal, reasoning as follows:
“3(i) Whilst the Veterans Agency agreed that handkerchiefs were not clothes, the Tribunal held that this was irrelevant on account of the assessment of 1-5% which constituted the hay fever element of the claim further to Article 17 of the Service Pensions Order indicating that the problem complained of is not excessive. Therefore there is not exceptional wear and tear upon the Appellant’s clothing.
(ii) The bladder problem is accepted as part and parcel of Post Traumatic Stress Disorder, assessed at 6-14%. By the same reasoning set out at paragraph 3(i) above, the problem complained of is not excessive. Therefore there is not exceptional wear and tear upon the underpants, trousers and shirts.”
6. The appellant had not attended the tribunal hearing nor was he represented. The tribunal had before it at hearing a bundle of documents including, amongst others, the claim form, the statement of case and the answer to same. In the documents the appellant gave details of how the claimed extra wear and tear occurred.
7. The appellant appealed to a Commissioner. He had a variety of grounds:
(1) He was prejudiced because various documents were not put before the PAT. These were:
(i) a report dated 17 November 2004 from Dr H… which he had requested be included as part of the supplementary statement of case;
(ii) the decision letter of the Veterans Agency dated 2 September 2003 did not appear to have been included as part of the statement of case.
(2) That the tribunal had erred in that it had not applied the test in Article 17 of the SPO.
(3) That the tribunal had erred in not considering handkerchiefs to be clothing.
(4) That the tribunal had erred in that it had used the assessment percentage figures for disablement as determinative of whether or not the requirements of Article 17 were met.
(5) That the PAT was neither impartial nor independent.
(6) That the reasons for the decision did not adequately explain it. In particular they did not indicate what the tribunal had considered as his evidence and how it viewed that evidence.
(7) The tribunal had not considered his request for direction made by his letter to the tribunal dated 4 September 2005.
8. I granted leave, my reasons for so doing being that an arguable issue arose as to whether the tribunal dealt adequately with the claimant’s evidence as to wear and tear of his clothing due to the accepted disablement.
9. The Secretary of State made observations which were received in the Commissioners’ Office on 22 August 2006. Ms Audley, representing the Secretary of State, submitted that the PAT’s reasons were inadequate in that it appeared to have focused entirely on the assessments of the disablement when reaching the view that there was no excessive wear and tear on clothing, whereas it should have considered all the evidence. She submitted further that the medical evidence of 17 November 2004 was “not obtaining” to the tribunal’s decision as it post-dated the decision under appeal to the tribunal (that of 2 September 2003) and therefore could not be included in the statement of case for the appeal heard on 15 September 2005. She submitted that the appellant’s disability did not cause the exceptional wear and tear he was claiming and requested me to refer the matter to a new tribunal.
10. The appellant disputed this last request by letter dated 21 September 2006. He wishes me to decide the matter myself.
11. I sought and received observations from both parties as to whether a handkerchief could be considered as an article of clothing for the purposes of Article 17. The appellant contended that it should be, the Secretary of State that it should not.
Decision
12. I do consider that the tribunal has erred in this matter in that it appears to have considered the assessment of the accepted disablements to be conclusively determinative of whether or not there was exceptional wear and tear on the appellant’s clothing within the meaning of Article 17. It has consequently given no indication of how it viewed the appellant’s written evidence in relation to the matter of exceptional wear and tear. The tribunal is not, of course, bound to accept or to reject this evidence but it should give it consideration and indicate, albeit in general terms, its assessment of the said evidence.
13. As regards the relationship between the assessed percentage of disablement and Article 17, the percentage attributed to the disablement does not determine whether or not that disablement produces “exceptional wear and tear” of clothing. It must, however, be remembered that under Article 17(b) the only disablement which can be taken into account is:
“the disablement which gives rise to an award under this Order.”
That is the accepted and assessed disablement. No other disablement can be taken into consideration. Moreover the percentage is not irrelevant. It reflects the extent of disablement giving rise to the award and it is only that disablement that can be considered. What the percentage does not do is conclusively determine whether or not there is exceptional wear and tear from that accepted disablement.
14. I am in agreement with Ms Audley that this matter should be remitted to a differently constituted tribunal for rehearing and re-determination. That tribunal with its medical and Forces expertise will be better equipped than I am to make factual findings. I therefore set aside the decision and remit the matter to a differently constituted tribunal for rehearing and re-determination. It is to be hoped that the claimant will attend the rehearing.
15. Certain issues remain. These are whether or not handkerchiefs can be included as items of clothing, whether the medical report of 17 November 2004 can be considered by the tribunal, the direction issue, the issue of what is meant by wear and tear and the issue of what documentation should be in the statement of case.
16. As regards the handkerchief question it is correct as the appellant submits that Article 17 does not have a prescribed list of items which can or cannot constitute clothing. It is long term settled law (Brutus v Cozens (1973) AC 854 at 861) that the meaning of an ordinary word in common use is not a question of law. However, the proper construction of a statute is a question of law. As Lord Reid said in Brutus v Cozens:
“The meaning of an ordinary word of the English language is not a question of law. The proper construction of a statute is a question of law. If the context shows that a word is used in an unusual sense the Court will determine in other words what that unusual sense is. … It is for the tribunal which decides the case to consider, not as law but as fact, whether in the whole circumstances the words of the statute do or do not as a matter of ordinary usage of the English language cover or apply to the facts which have been proved. If it is alleged that the tribunal has reached a wrong decision then there can be a question of law but only of a limited character. The question would normally be whether their decision was unreasonable in the sense that no tribunal acquainted with the ordinary use of language could reasonably reach that decision.”
The other Law Lords expressed similar views.
17. In this case, clothing must be given its ordinary natural meaning, there being no indication that it is to be given any special or technical meaning in the legislation. The word must be considered in context. There is no definition of clothing in the SPO. The context in this case is that of “exceptional wear and tear” of clothing. Bearing in mind that context I cannot find any error in the tribunal concluding that handkerchiefs were not clothing. Clothing is, in my view, used in the sense of apparel, of that which covers or is worn. One does not usually speak of wearing a handkerchief but of carrying one. One does not need a handkerchief to be fully dressed. The purpose of the handkerchief is not for attire but for wiping the nose. It is of course possible (I do not reach any conclusion in relation to this case) for an accepted condition to cause extra wear and tear on handkerchiefs as could be the case with other items eg spectacles, false teeth or bedclothes. However, the allowance covers only clothing as that is ordinarily understood. That does not in my view include handkerchiefs. The tribunal did not err in that respect.
18. As regards the meaning of wear and tear, again these are ordinary English words the meaning of which is not a matter of law though the sense in which the phrase is used in the statute is. Article 17 refers to “exceptional wear and tear” but “exceptional” qualifies “wear and tear” so there must be “wear and tear” and it must be “exceptional”. I note that the definition of “wear and tear” in Collins English Dictionary is “damage, depreciation, or loss resulting from ordinary use.” [my emphasis] This phrase as used in the legislation relates to exceptional damage or loss resulting from ordinary use ie use as clothing. The use of shirts and T shirts to wipe the nose is not such ordinary use. Such use is not wear and tear within the legislation.
19. As regards the medical report of 17 November 2004 not being included in the statement of case or otherwise disclosed to the tribunal, the relevant legislation is contained in the Pensions Appeal Tribunals Act 1943 and Pensions Appeal Tribunals (Northern Ireland) Rules 1981. Section 5B of the Act provides that:
“In deciding any appeal, a Pensions Appeal Tribunal –
(a) need not consider any issue that is not raised by the appellant or the Minister in relation to the appeal; and
(b) shall not take into account any circumstances not obtaining at the time when the decision appealed against was made.”
20. It does appear that the appellant requested the Secretary of State to include the said medical report of 17 November 2004 in its supplementary statement of case but the Secretary of State declined to do so, on the basis that that report was not “obtaining to the appeal”. I am not altogether clear what is meant by this but proceed on the assumption that it is an oblique reference to section 5B(b) above. A copy of the report is in the papers before me. (I think by virtue of a direction of the PAT Chairman after the issue of the decision and to enable him to consider the application for leave). The appellant wished same considered by the tribunal because he considered it relevant because Dr H… (who wrote the report) had questioned him as to his bladder problems. It does appear that Dr H… in fact did so as he recites in the “history” section of his report that bladder investigations were carried out and in the diagnosis and effect section (at page 12) says as follows:
“Bladder
Urological investigation on-going.
A Prostatism confirmed. Frequency ++ exists
Moderate dysfunction.”
The Secretary of State is correct that this information post-dates the decision under appeal to the tribunal which was dated 3 September 2003. It appears, however, to pre-date the preparation of the statement of case. Rule 5 of the Pensions Appeal Tribunals (Northern Ireland) Rules 1981 provides that the statement of case is to contain:
“the relevant facts relating to the appellant’s case as known to the Secretary of State, including the relevant medical history of the appellant;”
I consider that the report was relevant to the appeal.
21. As regards section 5B, this is a matter for the tribunal to apply. The report does appear to be part of the relevant medical history and should have been included in the statement of case. It was for the tribunal to decide whether or not the evidence included therein related to circumstances obtaining at 3 September 2003. To the extent that it did not it could not be taken into consideration by the tribunal. The mere fact that the report post-dates that decision does not necessarily mean that it or part of it cannot relate to circumstances obtaining at the date of decision. If, for example, there was a condition in existence at the date of that decision which was covered by a report prepared some time later, that condition (to the extent that it existed at the date of decision) was a circumstance obtaining at the date of decision. If the condition worsened or improved post the date of decision that, unless reasonably foreseeable at the date of decision, would be a circumstance not obtaining. I therefore direct that this medical report be put before the tribunal as having relevance to the issues in the appeal.
22. As regards the matter of whether or not a direction should have been made for the production of Dr H…’s report to the tribunal, the legislation covering this is set out in rule 6 of the Pensions Appeal Tribunals (Northern Ireland) Rules 1981. That rule provides:
“6.-(1) Where for the purposes of his appeal an appellant desires to have disclosed any document, or part of any document, which he has reason to believe is in the possession of a government department, he may, at any time not later than six weeks after the Statement of Case was sent to him, apply to the President for the disclosure of the document or part, and, if the President considers that the document or part is likely to be relevant to any issue to be determined on the appeal, he may give a direction to the department concerned requiring its disclosure (if in the possession of the department) in such manner and upon such terms and conditions as the President may think fit:
Provided that directions given under this Rule shall not require the disclosure of –
(i) documents in the nature of departmental minutes or reports; or
(ii) the name of any person in the service of Her Majesty who has given a report or medical certificate relating to the appellant or to the person in respect of whose death the appeal is brought.
For the purposes of this paragraph a certificate given by an officer of the government department concerned (being an officer authorized in that behalf by the Secretary of State or Minister in charge of the department) that a document or name is such a document or name as is described in sub-paragraph (i) or sub-paragraph (ii) shall be final and conclusive.
(2) On receipt of a direction given by the President under this Rule, the Secretary of State or Minister in charge of the government department concerned, or any person authorized by him in that behalf, may certify to the President -
(a) that it would be contrary to the public interest for the whole or part of the document to which the direction relates to be disclosed publicly; or
(b) that the whole or part of the document ought not, for reasons of security, to be disclosed in any manner whatsoever;
and where a certificate is given under sub-paragraph (a), the President shall give such directions to the Tribunal as may be requisite for prohibiting or restricting the disclosure in public of the document, or part thereof, as the case may be, and where a certificate is given under sub-paragraph (b) the President shall direct the Tribunal to consider whether the appellant’s case will be prejudiced if the appeal proceeds without such disclosure, and, where the Tribunal is of opinion that the appellant would be prejudiced if the appeal were to proceed without such disclosure, it shall adjourn the hearing of the appeal until such time as the necessity for non-disclosure on the ground of security no longer exists.
(3) At the hearing the appellant may apply to the Tribunal for the disclosure of such a document as is mentioned in this Rule, and, where it appears to the Tribunal that the document is likely to be relevant to any issue to be determined on the appeal, and that the appellant has reasonable excuse for having failed to make an application for disclosure to the President before the hearing under paragraph (1) the Tribunal may, unless the document is produced by the Secretary of State’s representative, adjourn the case for an application to the President to be made by the appellant.
(4) It shall be a sufficient compliance with a direction given for the disclosure of a document, or part of a document, under this Rule, if there is produced a copy of the document or the part thereof certified as a true copy by an officer of the department concerned authorized in that behalf by the Secretary of State or Minister in charge of the department.
(5) References in this Rule to a government department and to the Secretary of State or Minister in charge of a government department shall be respectively construed as including references to a department of the Government of Northern Ireland and to a Minister appointed to administer such a department.”
23. It does appear from the document dated 5 December 2004 headed, “Response to your Statement of Case (Clothing Allowance) Rejection”, which was, it appears, posted to the Veterans Agency that the claimant had requested that this document be furnished to the tribunal and therefore by implication to him. I can trace no mention of this having been considered either by the President, the Deputy President or the tribunal chairman who, by virtue of Rule 2A may have had a delegated power to carry out the functions of the President under Rule 6. While it does not appear that there was an application to the President, the Deputy President or the chairman for such document to be disclosed, the application apparently being made to the Secretary of State, the papers before the tribunal did include the said document dated 5 December 2004. The powers under Rule 6 are not exercisable by the tribunal but it should have given consideration to this request and its course of action under Rule 6(3). As I have now directed production of Dr H…’s report the matter is not of importance for the new tribunal.
24. The decision of the tribunal is set aside and the matter remitted to a differently constituted tribunal for rehearing and re-determination. The Secretary of State should clearly identify the disablement as a result of which the award was made and should include as part of the statement of case, the medical report dated 17 November 2004. The tribunal should bear in mind the views set out above and also that it is subject to the restrictions of section 5B. The claimant wins this appeal but should not take this as indicative of the likely substantive outcome of the case.
(Signed): M F Brown
COMMISSIONER
16 March 2007
CO v London Borough of Havering [2015] UKUT 28 (AAC)
DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
The DECISION of the Upper Tribunal is to allow the claimant’s appeal.
The interlocutory decision of the Basildon First-tier Tribunal dated 11 February 2013 under file reference SC919/11/04702 involves an error on a point of law. The First-tier Tribunal's decision dated 11 February 2013 is therefore set aside. The Upper Tribunal remakes the decision in the following terms:
“The claimant’s appeal to the First-tier Tribunal against the local authority’s decision dated 11 May 2010 is not out of jurisdiction.
The claimant’s appeal dated 28 February 2011 and received by the local authority on 3 March 2011 was duly made within the terms of rule 23(6).
The claimant’s appeal was late but within the 13-month absolute time limit. Time is extended under rule 5(3)(a) so as to admit the appeal.
The local authority’s application for the appeal to be struck out is therefore dismissed.
The local authority is directed to prepare a submission on its substantive decision made on 11 May 2010 and to send a copy to the HMCTS Birmingham office within 6 weeks of the date that this decision is issued to the parties by the Upper Tribunal office.”
This decision is given under section 12(2)(a) and (b)(ii) of the Tribunals, Courts and Enforcement Act 2007.
These directions may be supplemented as appropriate by later directions by a District Tribunal Judge in the First-tier Tribunal (Social Entitlement Chamber).
REASONS FOR DECISION
The legal issue that arises on this appeal
1. The legal issue that arises in this case is whether the claimant’s original appeal was duly made. In particular, rule 23(6) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (SI 2008/2685; “the SEC Rules”) requires (amongst other matters) that a notice of appeal “must be signed by the appellant”.
2. In the present case the claimant’s solicitor had signed the letter of appeal. The local authority decided the appeal had not been properly made. By the time the local authority received the claimant’s personally signed letter of appeal, it was outside the maximum 13-month time limit for appeals. The First-tier Tribunal (“the Tribunal”) struck out the appeal as out of jurisdiction.
Summary of the Upper Tribunal’s decision
3. I allow the claimant’s appeal to the Upper Tribunal. This is because there are legal errors in the Tribunal’s decision. I therefore set aside the First-tier Tribunal’s decision. I substitute my own decision to the effect that the claimant’s appeal was not outside the 13 month absolute time limit. Although the solicitor’s letter of appeal was outside the standard 1 month time limit, I extend time so as to admit the late appeal. On the papers before me I am not able to decide the substantive appeal, and so a new Tribunal will need to do so.
The background to this appeal
4. The claimant was in receipt of income support (paid by the DWP) and housing benefit (paid by the local authority) as a lone parent. At some point in early 2010 the DWP decided she was living with her partner and they had more than £16,000 in capital. On 23 June 2010 the DWP decided that she was liable to repay a recoverable overpayment amounting to £7,859.15 for the period from 23 July 2007 to 5 January 2010.
5. The local authority took action in parallel. On 11 May 2010 the local authority decided that the claimant was not entitled to housing benefit for the period from 17 October 2008 to 16 November 2009 and was liable to repay £10,459.36 in housing benefit and £1,216.84 in council tax benefit.
6. The DWP and the local authority also took criminal proceedings against the claimant. However, on 29 October 2010 the prosecution withdrew the charges.
7. On 28 February 2011 the claimant’s solicitors sent a 2-page letter of appeal to the local authority. It began by stating “We refer to our above-named client who has instructed us in relation to her appeal against a decision on her entitlement to housing benefit and council tax benefit”. It then referred to a decision dated 16 April 2010. However, the local authority apparently made no decision on that date, and there is no dispute that the letter was in effect challenging the decision of 11 May 2010. The letter continued by setting out details of the grounds of appeal. It noted that the appeal was outside the 1-month time limit but within the absolute time limit. It concluded by stating “A copy of this letter has been sent to our client to sign and forward to your offices”.
8. The claimant says that she did exactly as requested by her solicitors. The local authority says that at that time it did not receive any such letter of appeal counter-signed by the claimant.
9. On 9 March 2011 the local authority wrote to the claimant’s solicitors stating that the appeal had not been duly made, explaining that it needed to be signed personally by the claimant.
10. On 25 August 2011 the claimant’s solicitors wrote to the local authority, reporting that the claimant had already returned her signed copy of the appeal letter.
11. On 1 September 2011 the local authority again wrote to the claimant’s solicitors, stating that it had still yet to receive the counter-signed appeal letter.
12. On 14 September 2011 the claimant herself wrote to the local authority, enclosing a signed copy, but explaining that she had already returned her signed copy of the appeal letter and asking for an extension of time as her earlier letter must have got lost in the post.
The claimant’s appeal to the First-tier Tribunal
13. On 19 October 2011 the local authority referred the claimant’s appeal to the Tribunal, arguing that the claimant’s signed appeal letter of 14 September 2011 was outside the absolute 13-month time limit for appeals (SEC Rules, rule 23(5), (8) and Schedule 1). The local authority’s written submission to the Tribunal, which dealt solely with the issue of the out-of-time appeal, asked that the appeal be struck out.
14. Nothing very much happened for the best part of a year. Of course, the Tribunal was at this time experiencing a very high volume of appeals.
15. On 7 January 2013 the Tribunal administration listed the case for a hearing to take place on 11 February 2013. The local authority representative but not the claimant attended. She says she received no notification of the hearing – and indeed there appears to be no record on the GAPS system that she was duly notified of the hearing date. This would, in itself, be a potential ground of appeal but I need not explore the issue further given my findings below. In its Decision Notice the Tribunal stated that it had decided not to adjourn, that the appeal had not been duly made under rule 23(6) and was struck out; in addition, the local authority’s decision of 11 May 2010 was confirmed. A request for a statement of reasons was refused as it was made late.
The proceedings in the Upper Tribunal
16. I gave the claimant permission to appeal for three reasons. First, it appeared that a letter the claimant had sent the Tribunal had not been copied to the main file and the parties (although it had been received and added to the Tribunal’s administrative file). Second, it was arguable the Tribunal had erred in law by “confirming” the local authority’s decision of 11 May 2010, given that it had already decided the appeal was out of jurisdiction and should be struck out. Third, it was arguable that the Tribunal had erred in law in its approach to rule 23(6) of the SEC Rules.
17. In the event I only need to deal with the third of these grounds.
18. The claimant’s case, quite simply, is that she did exactly as she had been asked to do by her solicitors and had returned the counter-signed copy of the appeal letter by first class mail in March 2011. She states that “there is no reason why I should lie about returning the letter because all it needed was my signature”.
19. The local authority’s position on this third ground is as follows:
“The Local Authority believes that the appeal was not duly made until it was signed by the appellant and this was not until 14th September 2011, there was no good reason that the appellant was unable to complete or sign an appeal form herself and provide it within a reasonable time limit. She was also in constant communication with her solicitors and would have known that we requested a signed form. There is also no reason to believe that any form has been lost. The Local Authority has never received signed notification of authority to discuss with solicitors and therefore feel we are unable to accept the appeal as duly made.”
The statutory requirements for a valid notice of appeal
20. Rule 23(6) of the SEC Rules provides as follows (for cases in which the notice of appeal is to be sent to the decision maker, as in this case):
“(6) The notice of appeal must be in English or Welsh, must be signed by the appellant and must state–
(a) the name and address of the appellant;
(b) the name and address of the appellant’s representative (if any);
(c) an address where documents for the appellant may be sent or delivered;
(d) details of the decision being appealed; and
(e) the grounds on which the appellant relies.”
21. The solicitor’s letter of 28 February 2011, received by the local authority on 3 March 2011, complied with all these requirements save that it was not signed by the claimant herself. Indeed, in terms of the level of detail about the factual arguments being advanced as grounds of appeal on behalf of the claimant, it was exemplary.
The relevant case law
22. The local authority’s argument that the appeal was not duly made is supported by the decision of Mr Nigel Macleod QC, sitting as a Deputy High Court Judge, in R v Lambeth LBC ex p. Crookes and Others [1998] 31 HLR 59 (“Crookes”).
23. One of the issues in Crookes was the proper meaning of regulation 79(2) of the Housing Benefit (General) Regulations 1987 (SI 1987/1971) (as amended). This provided that a “person affected” by a local authority’s housing benefit decision could institute the then review board procedure if he made “written representations signed by him” within the relevant time limit. In Crookes the review request had been signed by the appellant’s solicitor, but not by the appellant himself. The Deputy High Court Judge held that “the words of regulation 79(2) ‘signed by him’ are clear and explicit and are not complied with by a signed written request from a properly authorised Solicitor” (at 71). In finding so, the Judge placed considerable reliance on, and quoted extensively from, the Court of Appeal’s decision in Re Prince Blücher [1931] 2 Ch D 70. The issue in that case had been whether a proposal for a scheme of arrangement, which had been signed on behalf of a debtor by solicitors, was valid for the purpose of section 16 of the Bankruptcy Act 1914. The Court of Appeal held that the debtor’s personal signature was required.
24. However, as noted by the authors of CPAG’s Housing Benefit and Council Tax Benefit Legislation (27th edition 2014/15) at p.933, the Privy Council in General Legal Council ex parte Basil Whitter v Frankson [2006] UKPC 42 (“ex parte Whitter”) held that Re Prince Blücher had been wrongly decided. In ex parte Whitter itself, the Court of Appeal of Jamaica had held that a regulatory body had no jurisdiction to hear a complaint of professional misconduct made by a client against her former attorney. This was on the basis that the relevant rules required the aggrieved person to make a complaint by affidavit, but the complainant had authorised her son to do so on her behalf.
25. The Privy Council in ex parte Whitter advised that the appeal should be allowed. It re-asserted the general principle that “when a statute gives someone the right to invoke some legal procedure by giving a notice or taking some other formal step, he may either do so in person or authorise someone else to do it on his behalf” (at [4]). The Privy Council acknowledged that there were “statutes which, exceptionally, require a personal signature and exclude performance by an agent” (at [5]; see e.g. Hyde v Johnson (1836) 2 Bing NC 776). However, Re Prince Blücher, which had previously been regarded as falling into this exceptional category, was expressly disapproved as “wrongly decided”, at least for the reasons given by the Court of Appeal (at [7]). The fact that the complaint in ex parte Whitter had to be made by way of affidavit did not make it an exceptional case. Indeed, the fundamental principle was that “the hand and signature of the agent counts as the hand and signature of the principal. It therefore satisfies the requirements of the rules” (at [12]).
The Upper Tribunal’s analysis
26. There is no material difference in the wording between the respective statutory requirements that a review board application be “signed by him” and now that a notice of appeal be “signed by the appellant”. However, I decline to follow the decision of the Deputy High Court Judge, in R v Lambeth LBC ex p. Crookes and Others. Its unduly narrow approach to the interpretation of the legislation simply cannot stand with the principles set out by the Privy Council in General Legal Council ex parte Basil Whitter v Frankson. It follows that the requirement in rule 23(6) of the SEC Rules that a notice of appeal “must be signed by the appellant” is satisfied by a notice of appeal being signed by the appellant’s solicitor.
27. There are two further reasons, apart from the highly persuasive authority of ex parte Whitter, which support this reading of rule 23(6).
28. The first is that, given the code of professional responsibilities and ethics imposed on solicitors, one can assume that a solicitor sending in a letter of appeal on behalf of their client is properly authorised and acting on their instructions, and so is signing as agent for their client. The point was put neatly by Judge Rowland in Salisbury Independent Living v Wirral Metropolitan Borough Council [2011] UKUT 44 (AAC) (CH/3186/2009) at paragraph 11:
“11. Rule 23(6) of the Rules provides that a notice of appeal to the First-tier Tribunal ‘must be signed by the appellant’. Insofar as this is a matter of form, non-compliance may be waived under rule 7(2)(a). However, the signature provides proof that the appeal is brought by the person who is claimed to be the appellant. The requirement for the appellant’s signature is generally waived where the notice of appeal is signed by a representative who provides signed authority to bring the appeal or who is a solicitor and therefore presumed to act only on instructions. In this case, the lack of signature was considered important because it was the local authority’s case that the appeals had not been brought either by the claimed appellants or on their behalf and that therefore the appeals were not valid…”
29. The Court of Appeal subsequently reversed Judge Rowland’s decision on another ground (Wirral MBC v Salisbury Independent Living [2012] EWCA Civ 84 [2012] AACR 37), but there is nothing in the Court of Appeal’s judgment to cast any doubt on the general practice to which Judge Rowland referred. Indeed, in the light of
ex parte Whitter I would go further. According to the Privy Council, “the hand and signature of the agent counts as the hand and signature of the principal. It therefore satisfies the requirements of the rules”. It follows that where the notice of appeal is lodged by the claimant’s solicitor, there is no need to consider whether to waive the requirement under rule 7(2)(a), as that power arises only if there has in fact been an irregularity involving a failure to comply with any requirement in the SEC Rules (rule 7(1)).
30. As Judge Rowland notes, if a non-legally qualified representative, such as a welfare rights worker or CAB adviser provides a written authority from their client, then for the purposes of rule 26(3) they are, in practical terms, in the same position as a solicitor who writes on the instructions of their client. The position where a lay representative lodges an appeal but without providing such written authority is not so clear. By definition a lay representative is not bound by a professional code or subject to discipline by a professional regulatory body. It cannot necessarily always be assumed that such a representative is acting on their client’s instructions (see e.g. CSDLA/2/2001). However, that is not the situation in the present case.
31. The second reason that supports a broad and purposive reading of rule 23(6) is the policy underpinning the Leggatt Report (Tribunals for Users: One System, One Service, HMSO, 2001) and subsequently the Tribunals, Courts and Enforcement Act 2007 itself. A recurring theme of the Leggatt Report was that tribunals should be accessible and user-friendly. Tribunal procedures should ensure that cases are dealt with “economically, proportionately, expeditiously and fairly”. The overriding objective in rule 2 of the SEC Rules requires that cases are dealt with “fairly and justly”, which includes “avoiding unnecessary formality and seeking flexibility in the proceedings” (rule 2(2)(b)). An insistence on the claimant’s personal signature when a notice of appeal has been lodged by her solicitor represents a triumph of undue formalism over substance. For the reasons set out above, it is contrary to precedent, principle and policy.
The Upper Tribunal’s decision on this appeal to the Upper Tribunal
32. The First-tier Tribunal’s decision involves an error of law. The Tribunal found that the claimant’s appeal was (a) not duly made within rule 23(6); (b) was therefore outside the 13-month absolute time limit; and (c) accordingly should be struck out. However, as to (a), and for the reasons set out above, the notice of appeal was duly made within rule 23(6). As to (b), it was late (outside the standard 1-month time limit) but not so late as to breach the 13-month rule. As regards (c), it was therefore potentially within jurisdiction although the claimant’s request for an extension of time needed to be considered. It should not have been struck out on the basis that it was. I do not need to address the other grounds of appeal. The claimant’s appeal against the Tribunal’s interlocutory decision therefore succeeds. I set aside the decision of the Basildon First-tier Tribunal dated 11 February 2013 (Tribunals, Courts and Enforcement Act 2007, section 12(2)(a)).
33. It is not necessary, and it would be wholly disproportionate, to send this interlocutory matter back for a rehearing. No new information is going to emerge in relation to that issue. I am in a position to re-make the decision, or substitute my own decision, for the tribunal’s decision, and proceed to do so (Tribunals, Courts and Enforcement Act 2007, section 12(2)(b)(ii) and 12(4)).
The Upper Tribunal’s decision on the late appeal to the First-tier Tribunal
34. The local authority’s decision was made on 11 May 2010. The solicitor’s notice of appeal was received on 3 March 2011. It was therefore nearly 9 months late. The time limit is one month (rule 23(2) of, and Schedule 1 to, the SEC Rules). The local authority has objected to the late appeal being admitted, so rule 23(4) does not apply.
35. The one month time limit may be extended as a matter of discretion under rule 5(3)(a) (subject to the absolute 13-month rule, which does not arise on the facts of this case). The decision on whether to extend time must be taken in the light of the overriding objective under rule 2 of the SEC Rules. The starting point is that time limits are there for a purpose and the burden is on the claimant to show that time should be extended. All relevant factors must be taken into account, and especially (1) the length of delay; (2) the reasons for the delay; (3) the chances of the appeal succeeding if the application is granted; and (4) the degree of prejudice to the respondent if the application is granted.
36. As to (1), this is plainly a factor which weighs heavily against the claimant. This is not a delay of a few days or even a week or two. It is a substantial delay of nearly 9 months. On that basis alone the claimant will have to show very good reasons for exercising the discretion in her favour.
37. As to (2), the claimant explains that she understood that when the criminal charges were dropped it had been accepted that she was entitled to the benefits that she had been claiming. She had (mistakenly) understood that all issues relevant to her benefit claim would be dealt with as part of the criminal proceedings which involved both the DWP and the local authority. She was represented by other solicitors in relation to those proceedings, and it was only when she consulted her new solicitors after the withdrawal of the prosecution that she had been correctly advised about her civil appeal rights.
38. As to (3), and on the face of the evidence before me, I am satisfied that there is a realistic prospect that her appeal will succeed if the application is granted. It will be recalled that the DWP originally decided on 23 June 2010 that the claimant was liable for a recoverable overpayment amounting to £7,859.15 for the period from 23 July 2007 to 5 January 2010. The period of the alleged overpayment in respect of housing benefit and council tax benefit fell wholly within that period (17 October 2008 to 16 November 2009). On 26 October 2012 (so two years after the prosecution was dropped) the DWP Income Support Appeals office wrote to the claimant about its decision of 23 June 2010. That letter conveyed the decision “that there is no evidence held of a recoverable overpayment for the period in question”. It added that the papers were being returned to the debt management team “to confirm there is no recoverable overpayment of Income Support”.
39. There is no further information about the substance or detail of that decision. The letter certainly implies that the DWP decision was to the effect that, while the claimant was not entitled to income support for the period in issue, the resulting overpayment was itself not recoverable. However, the letter is short and loosely expressed and it may be that the Income Support decision maker had in fact decided that there was entitlement during the period in question, and so as a result there was simply no question of any recoverable overpayment arising. Whatever the answer, the DWP decision of 26 October 2012 casts a serious question mark over the local authority’s decision.
40. As to (4), if the application is granted there is clearly some degree of prejudice to the local authority given that the case will have to be re-opened and a new submission prepared for the Tribunal.
41. Looking at the overall picture, the length of the delay (1) weighs substantially against the claimant, and there is a degree of prejudice (4) to the local authority if time is extended. The latter is relatively slight in the overall scheme of things. The reasons for the delay (2) are perhaps understandable, and it would not be right to penalise the claimant for the failure of the first firm of solicitors to advise her as to her civil appeal rights. In my view the chances of success (4) are certainly at least reasonable. Indeed, in the light of the DWP’s later decision, there is a real risk of a considerable injustice being done to the claimant if time is not extended and this appeal is not heard on its merits. I take the view that the chances of success, given the DWP change of position, outweigh the factors which otherwise militate against extending time (in particular the length of the delay).
42. Does it matter that the local authority decision under appeal was taken in May 2010, the claimant’s appeal was lodged in March 2011 but the DWP’s revised decision was not taken until October 2012? The law states that the Tribunal “shall not take into account any circumstances not obtaining at the time when the decision appealed against was made” (see paragraph 6(9) of Schedule 7 to the Child Support, Pensions and Social Security Act 2000, echoing section 12(8)(b) of the Social Security Act 1998). However, that provision only applies to the Tribunal’s decision on a substantive appeal against a local authority’s decision on a housing benefit claim (paragraph 6(1) of Schedule 7). It does not apply in the context of the Tribunal’s decision on an interlocutory issue as to whether it had jurisdiction to hear the appeal at all and, if so, whether to extend time, which is ultimately governed by rule 2. If I am wrong about that, plainly the DWP’s decision, although later, is simply evidence that refers back to the actual factual circumstances at the relevant time (see Commissioners’ decisions R(DLA) 2/01 and R(DLA) 3/01).
43. I therefore re-make the Tribunal’s decision so as to extend time to admit the late appeal received on 3 March 2011.
44. The claimant’s appeal against the local authority’s decision of 11 May 2010 was accordingly not out of time. It should not have been struck out. Time has been extended to admit the appeal. The case is accordingly remitted to the First-tier Tribunal for the substantive appeal to be decided. My re-made decision is therefore as follows:
“The claimant’s appeal to the First-tier Tribunal against the local authority’s decision dated 11 May 2010 is not out of jurisdiction.
The claimant’s appeal dated 28 February 2011 and received by the local authority on 3 March 2011 was duly made within the terms of rule 23(6).
The claimant’s appeal was late but within the 13-month absolute time limit. Time is extended under rule 5(3)(a) so as to admit the appeal.
The local authority’s application for the appeal to be struck out is therefore dismissed.
The local authority is directed to prepare a submission on its substantive decision made on 11 May 2010 and to send a copy to the HMCTS Birmingham office within 6 weeks of the date that this decision is issued to the parties by the Upper Tribunal office.”
45. As a first step the local authority should therefore prepare a written submission for the Tribunal which deals with the legal, factual and evidential basis for the decision of 11 May 2010. As part of that process the local authority would be well advised to seek further information from the DWP about the decision notified on 26 October 2012 to the claimant about her income support claim. It may be, of course, that on receipt of such information the local authority may decide to reconsider its decision of 11 May 2010 in any event.
46. In the absence of detailed information about the income support decision, it is difficult to be precise about its impact in the housing benefit context. In general terms, however, if the DWP decision was that the claimant was entitled to income support throughout the relevant period then it is not easy to envisage circumstances in which she was also not entitled to housing benefit for the same period, at least where the issue decided in her favour is the same (e.g. as to status as a lone parent or ownership of capital). If the DWP decision is that that the claimant was not entitled to income support, but the resulting overpayment is not recoverable, the position may well be different. This is because of the differences between the income support and housing benefit schemes as to the basis for any recoverable overpayment.
Conclusion47. For the reasons explained above, the Tribunal’s decision involves an error of law. The Upper Tribunal therefore allows the claimant’s appeal against the decision of the First-tier Tribunal dated 11 February 2013 and sets that decision aside (Tribunals, Courts and Enforcement Act 2007, section 12(2)(a)). The Upper Tribunal re-makes the decision in the terms as set out above (Tribunals, Courts and Enforcement Act 2007, section 12(2)(b)(ii)).
Signed on the original Nicholas Wikeley
on 19 January 2015 Judge of the Upper Tribunal
CS v Secretary of State for Defence (WP) [2011] UKUT 514 (AAC)
IN THE UPPER TRIBUNAL Appeal No: CAF/550/2010
ADMINISTRATIVE APPEALS CHAMBER
Before: J.P. Powell
DECISION
The decision of the appeal tribunal sitting at London on 11 November 2009, is not erroneous in point of law.
The appeal against that decision is dismissed.
REASONS
1. This is an appeal, with my permission, against the decision of the appeal tribunal sitting at London on 11 November 2009.
2. For simplicity I shall call the appellant the “claimant”. The respondent is the Secretary of State for Defence. I shall call him the “Secretary of State”. I shall refer to the tribunal which sat on 11 November 2000, as the “appeal tribunal”.
3. The issue in this appeal is whether the claimant satisfies article 20(1)(b)(iv) of the Naval, Military and Air Forces etc (Disablement and Death) Service Pensions Order 2006 (as amended) (“the 2006 Order”). If he does he is entitled to a mobility supplement. The Secretary of State made a decision rejecting a claim which the claimant had made to such supplement. On 11 November 2009, the appeal tribunal dismissed his appeal against that decision.
4. The basic facts are as follows. The claimant was born on 9 July 1935. He served in the Royal Air Force for many years. He is, and has for some time been, in receipt of a war pension. The pension relates to the following disablements.
1. Chronic Suppurative Otitis Media right with mixed hearing loss
2. Bilateral otitis externa
The total assessment is 50%. The conditions included as part and parcel of the accepted conditions are:
Positional vertigo is part and parcel of the chronic suppurative otitis media right with mixed hearing loss.
5. The claimant has been trying to obtain the mobility supplement for nearly 10 years. He made unsuccessful applications in March 2001 and May 2005. He appealed against the rejection of the latter claim but his appeal was dismissed by a Pensions Appeals Tribunal. An application for permission to appeal to a Pensions Appeal Commissioner was refused by the tribunal and, on renewal, by a Commissioner. In November 2008, he made a third attempt to obtain a mobility supplement. He underwent a medical examination on 26 February 2009. In March 2009, the Secretary of State rejected the claim. His appeal against that rejection was, as indicated, unsuccessful.
6. Entitlement to the mobility supplement is governed by article 20 of the 2006 Order. The present appeal relies on article 20(1)(b)(iv). I shall set out the relevant provision and then turn to the evidence on which the claimant relies.
20.(1) Subject to the provisions of this Article a mobility supplement may be awarded at the rate specified in paragraph 11 of Part IV of Schedule 1 to a member of the armed forces who is in receipt of retired pay or a pension in respect of –
(a) ...
(b) disablement, where the degree of disablement is assessed at 40 per cent or more, due to any other injury which is, and is likely to remain for at least 6 months from the date on which the question of eligibility for a supplement under this article is considered by the Secretary of State (either at first instance or on review), wholly or mainly responsible for –
(i) ...
(iv) rendering the exertion required to walk a danger to his life or a likely cause of serious deterioration in his health;
It is convenient to set out, first, the claimant’s own evidence, together with a letter from his general practitioner on which he places reliance, and then the remaining medical evidence.
7. On 14 October 2008, the claimant wrote the letter which appears at page 8 of the case papers. The relevant passages read as follows.
“Please bear with me for I find this latest development difficult to accurately describe.
In July of this year I was just in front of my house on the country road. I had the usual warning of a vertigo attack as my head began to tighten. Which meant slow down, go back into the garden, and sit down until I was settled.
Unfortunately I could not take a step in any direction at all.
For a minute or so I stood with my arms outstretched as if on a tightrope.
I saw a car coming a half mile or more down the road, so I had to move. My wife was close by in the garden, I called her, and she helped me back into the garden. There I sat on the ground with my head and back supported on the drive gate until i could be moved into the house.
The same thing happened several times since then. Always when walking.
I tell my wife “I’m going down”. Straight down, no matter where I am, wet or dry I have no options. Walking risks a fall and injury. I have to be careful when my wife helps me in that situation because I have pulled her down as well.
Supporting my back and head in a sitting position is the only way I can regain my balance enough to move once more.”
8. On page 17A of the papers, part of the WPSM and review claim forms which he completed on 18 November 2008, he said this:
“Since my operation (ENT) in 1976 my condition has deteriorated to a point last July where I found that whilst walking suddenly an attack of vertigo left me in a position so that I could not move in any direction, except down to the floor. Then I have to sit until my equilibrium returns once more. Not fully, but enough to move once again, with help. Without help I have barely any control of my walking ability, until further rest restores my equilibrium and to change my wet trousers (ruined).”
On page 25 A, which is part of the same form, the claimant said:
“The intensity of my vertigo directly affects my ability to walk. This intensity also can depend on the circumstances of where e.g. easier in open space with no people, than in a crowd.
If this intensity is allowed to build up (sometimes I have no control, eg can’t sit down) it culminates in my total inability to move in any direction except down to the floor. This comes about swiftly and without warning but up to now only when I am on my feet.
When have an intense episodal period, e.g. I found myself in the middle of a country road (outside my house) but could not move one step in any direction Down to the floor and crawl out of the way on my bum (It took a while to get down) luckily there was nothing coming. Therefore the danger lies in my inability to get out of harms way when I need to or that the vertigo puts me in harms way.”
9. The claimant relies strongly on a letter which his general practitioner wrote on 13 November 2008. There are a number of copies of this letter in the papers. The earliest will be found at page 21. The doctor wrote as follows.
“I can confirm that this man suffers from benign paroxysmal positional vertigo which is by definition paroxysmal and unpredictable. He has an element of this at all times but at times it gets particularly bad. Certain types of motion precipitate episodes of acute disabling vertigo and he is without doubt unable to travel on public transport because of the nature of the motion of these types of vehicles. I would be grateful if you would take this into account. Thanks for your attention.”
It should, perhaps, be mentioned that when the claimant sent a copy of that letter, his own, accompanying letter, included the following comments – see page 22.
“Please note that from my major vertigo event in December 2000 I have been unable to travel on public transport.
My nearest available access to public transport is a bus stop some 2 kilometres from my house. Which from December 2000, has been beyond my ability to reach on foot.”
I do not, however, consider that the distance between the claimant’s home and the nearest bus stop was what his general practitioner had in mind when he spoke of the claimant’s inability to use public transport. It is clear that this inability arose “because of the nature of the motion of these types of vehicles ...”.
10. I turn to the other medical evidence. The claimant was medically examined on 26 February 2009 and the resulting report will be found at pages 28A to 29A of the papers. The examiner considered that the claimant walked with “wobbly gait – mild/moderate balance impairment”. However, he was of the view that the claimant could walk “200 metres and more” without severe discomfort. Further, that he was not restricted by physical pain or breathlessness to such an extent that the ability to walk was of little or no practical use. He answered “no” to the questions “Does the exertion needed to walk present a danger to the pensioner’s life” and “Would the exertion needed to walk be likely to cause serious deterioration to the pensioner’s health”. He answered “yes” to the question “Are the difficulties and restrictions in the pensioner’s walking ability wholly or mainly due to the disablement caused by the accepted conditions” (my italics). In his concluding comments the examiner said that the claimant suffered from “overall mildly impaired mobility”. Finally, he recorded the following.
“ ... Vertigo started in about 2000. Now learnt to live with the problem. Cannot walk normally – balance affected. Falls rarely – able to keep himself steady. Sometimes has to sit on pavement due to severe dizzy spell – twice last year. Walks with a stick due to balance problem. Hates walking around the shops due to poor balance – tends to stay in car. He goes for short walk at times – couple of minutes. Tells me able to walk up to 30 yards. Stairs – holds on to the rail. Walks downstairs – sideways. Able to walk around garden - ok to walk slowly on the flat. He drives – ok. Drives to caravan club at times. Has no significant musculoskeletal problems with back or legs. ...”
The examiner also recorded “Romberg’s sign positive (suggests impaired balance)”.
11. The claimant also lodged three short letters from consultant ENT surgeons responsible for his care. The first is dated 23 January 2008, and records:
“This gentleman is able to control his symptoms of imbalance, providing he keeps his head very still and there are no sudden or unusual movements of it, and he finds that microscopic suction [a procedure performed in the hospital clinic] makes his imbalance severe.”
The consultant ends by saying that she has suggested that “we see him in the clinic in one year”. The second letter is dated 15 April 2009. On this occasion it is recorded:
“At the moment he has no problems with the ear itself but the dizziness and the balance problem is getting worse.
...
Since he has had very little previous medication for his imbalance, we have decided to try him on Serc ... and we will follow him up in one month to see if this has made any difference to his quality of life.”
The third letter is written a month later (20 May 2009). The claimant had had flu and, because of this, he could not say if the new medicine had improved matters. He was advised to continue taking it. The letter ended by saying that he “will be reviewed in the clinic in one year”.
12. The claimant’s appealed to the appeal tribunal stating, in his appeal form, “Put life at risk because of the effort to walk”. His appeal was heard by the appeal tribunal on 11 November 2009. The claimant did not attend the hearing. Subsequently, in a letter dated 7 May 2010 (at page 57 of the papers) he explained that “I said that I could not travel to the appeal. Made available to the tribunal was the [letter from his general practitioner dated 13 November 2008, to which reference has already been made] confirming that I was unfit to travel”. The claimant did not seek a domiciliary hearing. The appeal tribunal heard, and dismissed, the appeal in his absence. It set out the reasons for its decision in the following terms.
7. Having assessed all the evidence the Tribunal’s findings of facts material to the appeal are, in summary:
The evidence of the “Mobility” Board dated 26/2/09 (pp 28 – 29 rev SOC) is accepted by us. The evidence is quite clear that Art 20(1)(b)(i)-(iii) are not applicable in this case.
The Appellant’s main contention is in relation to the dizzy spells that he experiences and which he contends brings his case within Art 20(1)(b)(iv). However, it is clear both from the hospital letters in the SPC as well as the Board, that these have only occurred twice in the last year as at the date of the Board and that he is otherwise able to control his symptoms of imbalance. He has a degree of pre-warning, and on the occasions referred to has been able to sit on the pavement.
8. The Tribunal’s considerations in deciding this Appeal, having regard to its findings of fact, to the relevant law and to the contentions put by the parties are, in summary, as follows;-
The Appellant is for the reasons at para 8 not entitled to Mobility Supplement.
13. The claimant sought permission to appeal to the Upper Tribunal on the basis of the grounds set out in his letter of 28 January 2010 (page 46 of the papers) to which he appended another copy of his general practitioner’s letter of 13 November 2008. Permission to appeal was refused by the President of the War Pensions and Armed Forces Compensation Chamber who considered that the appeal tribunal had reached the correct decision in law on the basis of the evidence before it and on the construction of article 20(1)(b)(iv). The application was renewed and came before me. I granted permission so that it might be considered whether the appeal tribunal had applied the correct legal test and I referred, by analogy, to discussion in volume 1 of Sweet and Maxwell’s Social Security Legislation 2009/10. See, now, page 670 of the current, 2010/11) edition. In response to the directions which I gave the Secretary of State has lodged closely reasoned submissions which will be found at pages 63 to 70 of the papers. The claimant has been given the opportunity to respond and his response will be found at pages 71 and 72. It is accompanied by a letter dated 5 October 2010, from the ENT consultant surgeon principally concerned with his care. The letter was written after she had seen him in her clinic on 23 September 2010.
14. The Secretary of State’s submissions satisfy me that the appeal tribunal did approach the appeal correctly. Article 20(1)(b)(iv) is concerned with disablement that renders the exertion required to walk a danger to a person’s life or a likely cause of serious deterioration in his health. It is not in issue that the claimant’s vertigo has got worse. However, beyond that the appeal tribunal was faced with a conflict of evidence. The claimant described his problems in graphic terms in his letters and claim form and said that the severe episodes of vertigo were brought on by walking. The letter from his general practitioner was in more measured terms and referred to certain types of motion precipitating episodes of acute disabling vertigo and went on to say that the claimant was unable to travel on public transport because of the nature of the motion of these types of vehicles. The letters from the consultants were even more low key – i.e. “the dizziness and the balance problem is getting worse”. There was no medical evidence before the appeal tribunal that the exertion of walking is a likely cause of serious deterioration in the claimant’s health. However unpleasant the severe episodes of vertigo are, the claimant does recover from them. The claimant referred to the incident in the road outside his house and submitted that such an incident could amount to a danger to his life. Nevertheless, he is not supported in this by the medical evidence. The claimant deliberately chose, for whatever reason, not to attend the hearing of his appeal. Consequently, the members of the appeal tribunal were unable to question him about this incident and the possibility of a recurrence. In such circumstances the appeal tribunal dealt with the evidence in a permissible manner and reached conclusions which it was entitled to reach.
15. The Secretary of State goes on to submit that article 20(1)(b)(iv) is concerned with “the exertion required to walk” and that it is clear that these words are not satisfied in the present case. Although the claimant says that the severe episodes come on when he walks, the medical evidence is to the effect that it is not the exertion of walking that is responsible but that certain types of motion precipitate these episodes. I accept the Secretary of State’s submission and note that this is a point to which the Chamber President referred when he refused permission to appeal.
16. The claimant’s response at pages 71 and 72 relies on the recent letter from his ENT consultant. I stress that that letter was not before the appeal tribunal which cannot, therefore, be criticised for not taking it into account. I have, however, read it carefully. Quite frankly, to the extent that it supports anyone it appears to me to support the Secretary of State. The consultant says that the claimant “is coping with his balance symptoms but does have to think about what he is doing or about to do in order to keep his balance”. Later she says that his “imbalance can affect him walking down the street and on walking through door[s] he sometimes has a tendency to walk into a doorpost”. She ends by saying that he is to be reviewed in the outpatient clinic in a year. The claimant himself says “I recently lost my balance on exiting my motor home” and that he could have injured himself badly. However, this fall did not come about as a consequence of the exertion required to walk.
17. For these reasons I conclude that the appeal tribunal reached the right decision and I therefore dismiss the appeal.
Signed: J.P. Powell
Judge - Upper Tribunal
Dated: 2nd February 2011
DA v Secretary of State for Defence (AFCS) [2017] UKUT 0189 (AAC)
DA v Secretary of State for Defence (AFCS) [2017] UKUT 189 (AAC)
CAF/1897/2016
IN THE UPPER TRIBUNAL Case No. CAF/1897/2016
ADMINISTRATIVE APPEALS CHAMBER
Before Upper Tribunal Judge Rowland
Decision: The claimant’s appeal is allowed. By consent, the decision of the Firsttier Tribunal dated 15 March 2016 is set aside and there is substituted a decision
that the claimant is entitled to a lump sum award under the Armed Forces and
Reserve Forces (Compensation Scheme) Order 2011 (SI 2011/517) at 180% of a
tariff level 13 award.
REASONS FOR DECISION
1. This is an appeal, brought by the claimant with permission granted by the
First-tier Tribunal, against a decision of the First-tier Tribunal dated 15 March 2016,
whereby it allowed the claimant’s appeal against a decision of the Secretary of State
refusing to make any award under the Armed Forces and Reserve Forces
(Compensation Scheme) Order 2011 (SI 2011/517) but, having found that the
claimant satisfied the terms of the descriptor for item 55 in Table 2 in Schedule 3 in
respect of both his hands and his feet, made a single award at tariff level 13.
2. At the material time, item 55 was in the following terms –
“Non-freezing cold injury which has caused or is expected to cause neuropathic pain
and significant functional limitation or restriction at 26 weeks, with substantial
recovery beyond that date”
An award in respect of an injury described by that descriptor is made at tariff level
13. However, a footnote to the descriptor provided –
“A descriptor for a non-freezing cold injury refers to either unilateral or bilateral
damage to the upper or lower extremities”
It is common ground that the First-tier Tribunal erred in law in making one award at
tariff level 13, given the word “either” in that footnote.
3. It was originally submitted to the Upper Tribunal by both parties that the Firsttier Tribunal should have made two awards at tariff level 13, one in respect of the
injuries to the claimant’s hands and one in respect of the injuries to his feet, on the
basis that the terms of the descriptor for item 55 were satisfied twice. However, it is
now accepted by both parties that, in those circumstances, article 22 applies. Article
22 provides –
“22.—(1) This article applies where either paragraph (2) or (3) is satisfied.
(2) This paragraph applies where—
(a) one injury or more which is described by more than one descriptor is
sustained in or arises from one incident;
(b) the descriptors of the injury or injuries relate to one or more body zones;
(c) the relevant percentage for the purpose of calculating the amount of a
guaranteed income payment is less than 100%; and
DA v Secretary of State for Defence (AFCS) [2017] UKUT 189 (AAC)
CAF/1897/2016
(d) the descriptor or descriptors which give rise to an entitlement within tariff
levels 1 to 11 are in a single body zone.
(3) This paragraph applies where there are no injuries described by a descriptor
which give rise to an entitlement within tariff levels 1 to 11.
(4) Subject to article 17(2) the amount payable is to be calculated as follows—
(a) for the first descriptor, 100% of the relevant amount applicable to that
descriptor;
(b) for the second descriptor, 80% of the relevant amount applicable to that
descriptor;
(c) for the third descriptor, 60% of the relevant amount applicable to that
descriptor;
(d) for the fourth descriptor, 40% of the relevant amount applicable to that
descriptor;
(e) for the fifth and subsequent descriptors, 20% of the relevant amount
applicable to each descriptor.
(5) In this article—
(a) “first descriptor” means the descriptor in relation to which the highest relevant
amount would, but for this article, be payable,
(b) where the same amount is payable for each of two descriptors one is the
“first descriptor” and the other is to be the “second descriptor”,
and references to the second, third, fourth, fifth descriptor and subsequent
descriptors are to be construed accordingly.”
4. Paragraph (3) is very poorly drafted but it seems reasonably plain from its
context that it is intended to apply where paragraph (2)(a) – one injury or more which
is described by more than one descriptor is sustained in or arises from one incident
– is satisfied and none of those descriptors is within tariff levels 1 to 11.
5. In those circumstances, it is now common ground that the proper decision in
this case is one award at 180% of a tariff level 13 award. I agree.
6. The 2011 Order has been amended with effect from 31 May 2016 by the
Armed Forces and Reserve Forces (Compensation Scheme) (Amendment) Order
2016 (SI 2016/557), article 3(d) of which substituted a new item 55 of Table 2 in
Schedule 3. I express no view as to the effect of that amendment.
7. When granting permission to appeal, the Temporary Chamber President said
that the Upper Tribunal’s guidance on the extent to which (if at all) it is appropriate
when interpreting descriptors to have regard to IMEG recommendations and suchlike
would be helpful. However, as neither party has addressed that issue in their
submissions in this case, I do not consider that I should express a view on it either.
Mark Rowland
5 May 2017
DAT v Secretary of State for Defence (WP) [2013] UKUT 533 (AAC)
DAT v Secretary of State for Defence (WP)
[2013] UKUT 0533 (AAC) CAF/225/2012
DECISION OF THE UPPER TRIBUNAL
ADMINISTRATIVE APPEALS CHAMBER
The claimant’s appeal to the Upper Tribunal is allowed. The decision of the Plymouth First-tier Tribunal dated 13 October 2011 involved an error on a point of law, for the reasons given below, and is set aside. It is appropriate for the Upper Tribunal to re-make the decision on the preliminary issue that was before the First-tier Tribunal (Tribunals, Courts and Enforcement Act 2007, section 12(2)(b)(ii)). That decision as re-made is the claimant has a right of appeal against the decision notified in the letter dated 4 May 2010 to him from the Service Personnel & Veterans Agency, so that his case is not to be struck out as out of jurisdiction and the appeal against that decision is now to proceed to be determined.
REASONS
1. There has unfortunately been some delay since the final round of written submissions in the Upper Tribunal was completed. It was thought that the decision of Judge Rowland in appeals CAF/1238/2011 – CAF/1244/2011 might potentially contain something relevant to the present case on which further comments would be needed. That decision was signed on 26 September 2013 and in the event does not contain anything contrary to what is now common ground between the parties.
The background
2. The claimant served in the Royal Marines from 11 February 1980 to 10 February 1989. He was awarded a disablement pension under the Naval, Military and Air Forces Etc (Disablement and Death) Service Pensions Order 1983 for a number of conditions on claims made from 1989 to 2001. Crucially for the present case, on 21 January 2002 he made a claim for the conditions osteoarthritis left knee and osteoarthritis right knee. On 30 September 2002 the Secretary of State notified the claimant of the rejection of those claims, it having been decided that the conditions were neither attributable nor aggravated by service. The claimant appealed and the appeal was listed for hearing by what was then the Pensions Appeal Tribunal (PAT) on 26 November 2003. As described in paragraph 5 of the decision of the First-tier Tribunal of 13 October 2011, the claimant suffered a heart attack (apparently on 15 November 2003: page 29 of the Upper Tribunal papers) and was in hospital as an in-patient. He got someone to send a fax to the London office of the PATs (on 20 November 2003) to say that he could not attend for those reasons and asking for an adjournment. I agree with the tribunal of 13 October 2011 that that message could not have been transmitted to the PAT in Plymouth because it is inconceivable that any PAT could, in the face of that information, have done as the PAT of 26 November 2003 did and proceeded in the absence of the claimant to disallow his appeal.
3. The claimant applied for the PAT’s decision to be “overturned” on the ground of his having been unable to attend. The then President of PATs replied to the claimant on 10 February 2004, after confirming that the fax mentioned above had been received and that the file indicated that neither the fax nor any message about its contents was forwarded to the PAT in Plymouth, that he regretted that he had no power to overturn the PAT’s decision because the Pensions Appeal Tribunals Act 1943 gave no power to the Lord Chancellor to make a rule authorising the President to set aside a PAT decision. That was a reference to the Pensions Appeal Tribunals (England and Wales) Rules 1980 as then in force. The President suggested that the claimant had the alternatives of asking the Secretary of State to join in a joint application to set aside (under s.6(2A) of the 1943 Act) or of applying for permission to appeal to the High Court. The claimant evidently contacted the Veterans Agency who replied on 22 March 2004 (page 34) to say that the President appeared to have overlooked rule 20(5) of the 1980 Rules and that the claimant might like to bring that to his attention.
4. Rule 20(2)(a) authorised a PAT to decide an appeal in the absence of a claimant or representative unless satisfied that there was a sufficient reason for the absence. Then paragraph (5) provided:
“(5) Where an appeal has been determined under paragraph (2)(a) and the appellant applies to the President, without undue delay, for the decision to be set aside, the President may, if after affording each party a reasonable opportunity to make representations he considers that the interests of justice so require, grant the application and arrange for the appeal to be re-heard before a differently constituted tribunal; and he may make such further order as he thinks fit.”
5. The claimant wrote to the President again, in a letter that is not copied in the papers. The President replied in a letter dated 30 March 2004 (of which only the first page is copied in the papers) that in his view rule 20(5) was not validly made under the 1943 Act, relying on the decision of the High Court in Secretary of State for Defence v President of the Pensions Appeal Tribunals (England and Wales), David Donald Jones (interested party) [2004] EWHC 141 (Admin). I agree again with the tribunal of 13 October 2011 that the President’s view was misguided and that in fact the Jones case is clear authority that rule 20(5) was validly made under paragraph 5(1)(a) of the Schedule to the 1943 Act. I shall come back when discussing the decision of the tribunal of 13 October 2011 to the question whether there was anything that that tribunal or anyone else could have done about the President’s failure to use rule 20(5).
6. The claimant appears to have taken no further formal steps at the time to challenge the decision of the PAT of 26 November 2003. That was the factual basis on which the tribunal of 13 October 2011 proceeded. The first formal challenge was on the review application form signed by the claimant on 24 March 2010 and treated as made on 5 February 2010 as the date of first contact with the Veterans Welfare Service (now copied at pages 109 to 122 of the papers). He stated that the arthritis in his knees had worsened severely since 2002 and explained why he traced the source of those problems back to his service. He also mentioned a change in his medication. In relation to that review application the letter dated 4 May 2010 from the Service Personnel & Veterans Agency was as follows:
“The conditions Osteoarthritis Left Knee + Osteoarthritis Right Knee were rejected as being neither attributable to nor aggravated by service and these conditions were upheld by the Pension Appeal Tribunal on 26/11/2003. The Secretary of State considers there are no grounds to review the entitlement decision.”
7. The claimant lodged an appeal against that decision. It is not entirely clear to me on what date that intention was first communicated to the Secretary of State, but no point is taken on time limits. The case was eventually sent to the First-tier Tribunal for consideration and a hearing was directed. The Secretary of State’s submission was, relying on the decision of Underhill J in R (on the application of Secretary of State for Defence) v Pension Appeal Tribunal [2008] EWHC 2168 (Admin), commonly known as Hornsby, that a decision that there are no grounds to undertake a review is not appealable under the 1943 Act.
The decision of the First-tier Tribunal of 13 October 2011
8. The claimant attended the hearing on 13 October 2011 with a representative from the Royal British Legion (RBL). In the best traditions of the PATs as carried on in the War Pensions and Armed Forces Compensation Chamber, the tribunal gave the most careful consideration to whether there were any arguments that could possibly assist the claimant. The reserved decision issued on 10 November 2011 and rejecting the claimant’s appeal was long and detailed. It identified three possible routes: (i) setting aside the decision of the PAT of 23 November 2003 under the PAT Rules applying at the time; (ii) setting aside that decision under the Tribunal Procedure (First-tier Tribunal) (War Pensions and Armed Forces Compensation Chamber) Rules 2008; and (iii) allowing the appeal against the refusal to review under the powers in article 44(3) of the Naval, Military and Air Forces Etc (Disablement and Death) Service Pensions Order 2006 (the SPO). The tribunal found none of those three routes open to the claimant. In brief, on (i) it held that the powers given to the President under the 1980 Rules no longer existed on the revocation of those Rules on 3 November 2008 as part of the transition to the new system of First-tier Tribunals and that there were no proceedings pending on 3 November 2008 so as possibly to bring any transitional provisions in Schedule 4 to the Transfer of Tribunal Functions Order 2008 into play. On (ii), it held that the powers to set aside under the Tribunal Procedure Rules could only be exercised in relation to a decision of a First-tier Tribunal and not a PAT. On (iii), it held that, following Hornsby, there was no right of appeal against a refusal to review under article 44(3) and, in any case, even if grounds for review could be examined, there had been no relevant change of circumstances since 26 November 2003. Accordingly, at least by implication, it was ruled that there was no substantive appeal before the tribunal for decision.
9. Article 44(1) and (3) of the SPO provide:
“44. – (1) Subject to the provisions of paragraphs (3), (4) and (5) and to the provisions of paragraph (8) –
(a) any decision accepting or rejecting a claim for pension; or
(b) any assessment of the degree of disablement of a member of the armed forces; or
(c) any final decision that there is no disablement or that the disablement has come to an end
may be reviewed by the Secretary of State at any time on any ground.
(3) Any assessment or decision made, given or upheld by the Pensions Appeal Tribunal under … the Pensions Appeal Tribunals Act 1943 or the First-tier Tribunal may be reviewed by the Secretary of State at any time if the Secretary of State is satisfied that there has been a relevant change of circumstances since the assessment or decision was made, including any improvement or deterioration in the disablement in respect of which the assessment was made.”
The appeal to the Upper Tribunal
10. The claimant was given permission to appeal against the decision of the tribunal of 13 October 2011 by the then President of the War Pensions and Armed Forces Compensation Chamber, Judge Bano. I gave directions that the Secretary of State’s submission on the appeal was to deal with the decision of a three-judge panel of the Upper Tribunal in Secretary of State for Defence v RC (WP) [2012] UKUT 229 (AAC), now to be reported as [2013] AACR 4, issued after Judge Bano’s grant of permission. There, both the majority and the minority declined to follow Hornsby. The majority (Judge Rowland and myself) held that a refusal to review under any part of article 44, including paragraph (3), is appealable under the appropriate section of the 1943 Act.
11. In the submission dated 19 September 2012 from Gillian Jackson of the Treasury Solicitor’s Department on behalf of the Secretary of State it was accepted that in consequence the tribunal of 13 October 2011 went wrong in law in so far as it based its decision on the claimant’s having no right of appeal against the decision notified in the letter of 4 May 2010. However, it was submitted that, since the tribunal had in the alternative concluded that there had been no relevant change of circumstances, that error of law was not material to the outcome. It was further argued in paragraph 14 that any worsening of the condition of the claimant’s knees after 26 November 2003 could not have been a relevant change of circumstances on the question of entitlement (attribution to or aggravation by service), as opposed to any review on assessment of an accepted entitlement condition. It was said that the main emphasis of the claimant’s case had throughout been on his having been unfairly deprived of the opportunity to put his case to a PAT in 2003 and that he had put forward scarcely any argument as to how any subsequent worsening could impact on the connection of his knee conditions with service. Rather, he reiterated his arguments based on events during service. It was submitted that the appeal should have been struck out for having no reasonable prospect of success under the principles put forward in paragraph 79 of RC:
“79. Secondly, where an appeal in England and Wales against a decision that there are no grounds of review appears hopeless, it is open to the Secretary of State to apply to the First-tier Tribunal to have the appeal struck out under rule 8(3)(c) of the 2008 Rules on the ground that there is no reasonable prospect of the appeal succeeding. Since a decision whether or not to strike out a case is made by a judge sitting alone, such an application may not be appropriate if it turns on medical issues. An application might, however, be made where, for instance, an appeal is brought against a decision that there are no grounds for a review under article 44(3) and it is clear that the claimant does not allege any change of circumstances since the material decision of the First-tier Tribunal but merely asserts its decision was wrong”
12. In his reply dated 14 December 2012 on behalf of the claimant, Mr Glyn Tucker of the RBL drew attention to paragraph 4 of the decision of the tribunal of 13 October 2011:
“The Tribunal, with the consent of the Appellant, adopted the submission made at page 1 of the Response that it should treat the question of whether the Appellant had any right of appeal as a preliminary issue rather than hearing the appeal in full before determining that issue. Accordingly, the Response contained fewer materials than would normally be the case and in particular the Tribunal had no details of:
either the Appellant’s service in the Royal Marines
or his claimed disablements
or the reasons why they had not been accepted by the Respondent.”
He submitted in paragraph 10 in explaining why the final suggestion for the Secretary of State was not accepted that:
“[h]aving decided that they were bound by the Hornsby decision the tribunal were not required to make any findings regarding a relevant change of circumstances and their remarks were in that sense `obiter’. They were in any event not in a position to make such findings because, as noted in paragraph 4 above, they had none of the details required to make them. Whether the osteoarthritis of one or both of the knees was due to service or to constitutional or other factors requires, it is submitted, consideration of the progress of the disease. In his application for a review the Appellant reported a severe worsening of the condition. The Appellant’s grounds of appeal are only partly focused on the past injustice of the PAT decision in 2003. Paragraph 79 of [RC] states that since a decision whether or not to strike out a case is made by a judge sitting alone, such an application may not be appropriate if it turns on medical issues.”
13. Following that round of submissions I issued a direction asking for the parties’ views on, first, whether an application such as made by the claimant in February 2010 could be regarded as a new claim for the conditions identified, rather than merely as an application to review the decision of the PAT of 26 November 2003, and, second, if not, what was the meaning of “relevant” in the context of review of a decision rejecting a condition as not connected with service, especially in the light of the much wider powers of review that would have been available if the claimant had not exercised his right of appeal in 2002.
14. In their replies, the representatives were agreed, in answer to the first question, that following a rejection of a condition as not connected to service there could not under the SPO be a new claim made for the same condition. The effect of the rejection could only be altered through the process of review. In answer to the point that there was no express prohibition of such new claims in the SPO, Ms Jackson for the Secretary of State pointed out that there was no express provision allowing them either. Indeed, she drew attention to the provision in article 36(3) for the withdrawal of a claim not to prejudice the making of a further claim, which made the absence of anything similar in relation to rejected claims more pointed. The main basis for the submission was, though, that to allow new claims following rejection would undermine the finality of a rejection decision in a way that was incompatible with the structure of the SPO as a whole.
15. As to the meaning of “relevant”, the submission for the Secretary of State continued to be that a deterioration of a condition cannot of itself ever be a relevant change of circumstances in relation to a decision whether the condition is attributable to or aggravated by service. Paragraph 8 of the reply continued:
“It may be that when considering the facts of a particular case a change in scientific or medical understanding of the cause of a specific condition [a question raised in my direction] may amount to a `relevant’ change of circumstances on the facts of a case. It would be anticipated that this would be of a more general development in medical research rather than a review of the progression of a disease in a specific individual. However, and in any event, the Secretary of State does not read the suggestion in the Appellant’s submission that progression of a disease is a relevant consideration to whether a condition is attributable to or aggravated by service in the narrower way suggested in the directions. It is however difficult to assess this in the abstract and without any medical evidence at all in support of a suggestion that the cause of osteoarthritis in the knee(s) can be identified or assessed by progression of the disease. At present there is simply no basis for this submission and no grounds on which the Appellant can show that there has been a relevant change of circumstances such that article 44(3) is applicable.”
16. Mr Tucker’s submission in reply was that:
“A relevant change of circumstances for the purposes of article 44(3) is … any change of circumstances that shows the decision under review to be incorrect. Osteoarthritis in the knee(s) can affect susceptible individuals over time through normal wear and tear but such individuals are likely to be more severely affected where their knees have been damaged through injury or overuse. The progression of the Appellant’s osteoarthritis would clearly be relevant to any medical judgment of the part his accepted knee injuries and 9 years service in the Royal marines has played.”
Discussion – setting aside of the decision of the PAT of 26 November 2003
17. I am satisfied that the tribunal of 13 October 2011 reached the only conclusion legally open to it in concluding that it had no power under which it could set aside the decision of the PAT of 26 November 2003. Indeed, I think that it underestimated the legal obstacles in the way of such a course. Since this issue has not been pursued on behalf of the claimant before the Upper Tribunal I will be very brief.
18. First, if the then President of PATs is to be regarded as having made a decision in 2004 declining to set aside the PAT’s decision under rule 20(5) or any other provision of the 1980 Rules, there was simply no power given either under the 1980 Rules or the 2008 Rules for a tribunal as such to set aside such a decision of the President or regard it as a nullity or void. Such a decision could only be challenged by judicial review. However, it could possibly be considered that, as the then President had not carried out the procedure under rule 20(5) of the 1980 Rules of affording each party the opportunity to make representations and had rather stated that he had no power to embark on the procedure at all, that there was in existence an outstanding application by the claimant for setting aside that had never been adjudicated on. On that basis there would though still have been nothing that the tribunal of 13 October 2011 could have done on such an application. As it rightly pointed out, the 1980 Rules ceased to have any effect from 3 November 2008 as did the office of President of the PATs, so that even the incoming President of the new War Pensions and Armed Forces Compensation Chamber could not from then onwards have determined such an outstanding application unless some express transitional provision conferred such a power. The only piece of legislation containing powers of that type in relation to the 3 November 2008 changes is the Transfer of Tribunal Functions Order 2008. Schedule 4 (Transitional provisions) applies only where proceedings were pending immediately before 3 November 2008 before a tribunal listed in Schedule 1. The PAT in England and Wales is listed, but not the President of PATs. Thus, no functions of the President of PATs were transferred under article 3(1) of the Order to the President of the War Pensions and Armed Forces Chamber, nor were any pending proceedings to continue under Schedule 4. By the same token, no such functions of the President of PATs were transferred to the First-tier Tribunal and proceedings before the President could continue as proceedings before the First-tier Tribunal, so that the tribunal of 13 October 2011 could not exercise any of its powers under rule 35 of the 2008 Rules in relation to the decision of the PAT of 26 November 2003. Nor would there have been anything to be gained by an adjournment to enable the President of the War Pensions and Armed Forces Chamber to act because he had no powers determine any outstanding application to set aside either.
Discussion – review
19. It is now common ground that the tribunal of 13 October 2011 erred in law in concluding that there was no right of appeal from the Secretary of State’s decision notified in the letter of 4 May 2010. So far as the Secretary of State’s substantive powers of review are concerned, it is also common ground that the wide powers in article 44(1) of the SPO, allowing review of any decision rejecting a claim for pension on any ground, cannot apply either to the initial decision or a tribunal’s decision when the rejection has been confirmed by the tribunal. That is right because article 44(1) is expressly subject to paragraph (3) among others and the conditions in paragraph (3) must therefore operate when applicable in place of the powers in article 44(1). That was also the approach in Hornsby to the essentially identical terms of the SPO 1983, not differed from in RC.
20. It can also now be confirmed that the common position of the parties that, in the circumstances of the present case, no new claim for the conditions rejected in 2003 could be made in 2010 is correct, so that his only remedy is through review under article 44(3) of the SPO 2006. In one of the several inter-linked cases before Judge Rowland in CAF/1238/2011 and others a claim for an injury to the left ankle in 1982 was rejected by the Secretary of State in 1997. In 2007 the claimant made what he described as a “new claim” in respect of the 1982 incident and the left ankle. That was treated as an application for review. In the event, the Secretary of State did review the 1997 in the claimant’s favour, having accepted that there had been an inadequate investigation of the circumstances in 1997. Therefore, the claimant was probably better off through the process of review than if he was regarded as making a new claim, but Judge Rowland expressed no doubt about the propriety of treating what the claimant did in 2007 as an application for review. There is therefore nothing in that decision to displace the common position of the parties in the present case, which I consider to be in line with basic principle.
21. Since article 44(3) of the SPO 2006 expressly refers to PATs and First-tier Tribunals there is no obstacle to a review in 2010 of a PAT decision from 2003. Thus the crucial question in present case is whether there could be a “relevant” change of circumstances such as to meet the conditions of article 44(3). I do not have to decide whether Underwood J was right in paragraph 27 of Hornsby to accept the suggestion of leading counsel for the Secretary of State that a change in medical understanding suggesting a different aetiology for a particular condition could count, or the discovery of potentially relevant fresh evidence (although it is not clear whether that example came from counsel for the Secretary of State). For anyone familiar with review, and now revision and supersession, provisions in the area of social security, the question is immediately raised whether those examples indicate a change of circumstances, in the sense of the primary facts relevant to the case. The change of medical opinion would not indicate that anything had changed in the claimant’s condition, but could indicate that the original decision was now known to be wrong, just as would the issue of a decision by the Upper Tribunal or the courts indicating that the original decision was made on a legal basis now shown to be wrong. The emergence of new evidence in itself could equally indicate that the original decision was made on a mistaken factual basis without showing that anything had subsequently changed in the claimant’s condition. But such an approach from the social security angle would be in the context of the existence of other powers to correct decisions, including decisions of tribunals, made in ignorance of or under a mistake as to a material fact (cf paragraphs (2), (4) and (5) of article 44) and to correct original decisions made in error of law (although not necessarily in either case from the original effective date). In relation to article 44(3) there are no such other powers of correction available. It is therefore possible that a somewhat wider approach to what is a change of circumstances, to enable correction of tribunal decisions made on a mistaken factual basis, is appropriate. I do not have to decide whether that is so because in the present case the claimant relies on what I can call a “classic” change of circumstances. He says that since 2003 his knees have got worse and he has had to change his medication.
22. Assuming for the moment that that is so, the issue then is whether that change is “relevant” to the decision of the PAT of 26 November 2003. I think that Mr Tucker for the claimant is right in principle that the basic test is whether the change shows, or could show, that the decision under review was incorrect. However, Ms Jackson for the Secretary of State submits that it is medically and scientifically (and perhaps conceptually) impossible for a change in the condition of the claimant’s knees to show that the decision in 2003 about the connection of that condition with service was incorrect and that there was no medical evidence to the contrary. Mr Tucker for the claimant makes the contrary submission as in paragraph 16 above, that the progress of the condition (and I add perhaps how the osteoarthritis has progressed in the knees as compared with other parts of the body) could throw light on the causes of the condition. And he says that there is no medical evidence to support the Secretary of State’s view, so that the expert medical assessment of the position can only come from a new First-tier Tribunal.
23. On balance, I prefer Mr Tucker’s submission. As a judge with no medical qualifications or expertise I find myself unable to exclude the possibility that the way in which a disease such as osteoarthritis progresses in the knees as compared with its presence or progress in the rest of the body might throw some light on how far the condition could be said to be related to some factor of service. In the particular context of a decision rejecting a claim on the ground of the condition not being attributable to or aggravated by service, where as decided above the claimant does not have the protection that is common for most ordinary social security benefits of being able to make a new claim for a benefit denied in the past and have the conditions of entitlement re-examined, there is justification for giving “relevant change of circumstances” a fairly wide construction. This does not open the doors to in effect admitting appeals against rejection decisions long after time-limits for appeal have expired, because the rules in Schedule 3 to the SPO 2006 on the commencing dates of awards would in general limit any new award on a successful review to the date of the application for review, subject to the possibility of an earlier date if incapacity delayed the application (paragraph 5 of Schedule 3) or if the new award is based on a change in medical opinion (paragraph 6 of Schedule 3).
24. Accordingly, I do not need to explore whether, if I had accepted the submission for the Secretary of State, it would have been proper in a case like the present, where the tribunal had dealt only with the right of appeal as a preliminary issue and did not consider any evidence directly related to the grounds of review under article 44(3), either to find section 12(1) of the Tribunals, Courts and Enforcement Act 2007 not satisfied, because the error of law was not material, or to exercise the discretion in section 12(2)(a) not to set the tribunal’s decision aside. I suspect that the answer would have been no. I acknowledge that in EW v Secretary of State for Defence (AFCS) [2011] UKUT 186 (AAC), reported as [2012] AACR 3 I declined to find section 12(1) satisfied on the basis that, despite erring in law, the tribunal had come to the only decision open to it in law on the undisputed facts and said in effect that it did not much matter whether that conclusion was implemented through section 12(1) or 12(2)(a). On reflection, I should have made it clearer that those statements were related to the particular circumstances of EW. Care should be taken in considering the consequences of allowing a decision made on some false legal basis to remain in place before using either section 12(1) or 12(2)(a) not to set aside a tribunal’s decision.
Conclusion
25. The decision of the tribunal of 13 October 2011 is set aside as involving an error on a point of law for the reasons agreed on behalf of the Secretary of State. Since the case was put before that tribunal as one limited to the preliminary issue of jurisdiction I consider it more appropriate to substitute the decision that the tribunal should have made in accordance with the legal situation as subsequently decided in RC. That means that the appeal against the decision notified in the letter of 4 May 2010 must proceed before the First-tier Tribunal in the ordinary way, which will involve the preparation of a full statement of case. In view of the length of time that has elapsed, not least I am afraid in the Upper Tribunal, the President of the War Pensions and Armed Forces Compensation Chamber may wish to give some directions as to a timetable for the progress of the appeal.
(Signed on original): J Mesher
Judge of the Upper Tribunal
Date: 25 October 2013
DP v Secretary of State for Defence (WP) [2017] UKUT 434 (AAC)
DP v Secretary of State for Defence (WP) [2017] UKUT 434 (AAC)
CAF/2789/2016 1
IN THE UPPER TRIBUNAL Appeal No. CAF/2789/2016
ADMINISTRATIVE APPEALS CHAMBER
Before Judge S M Lane
DECISION
The appeal is dismissed.
The decision of the First-tier Tribunal (‘F-tT) heard on 3 June 2016 under reference
ASS/00035/2016 did not involve the making of any, or any material, error on a point of
law.
The decision reducing the assessment of disablement from 40%
to 30% in respect of accepted conditions (‘AC’) 1, 2 and 3 is
accordingly confirmed.
AC1 and 3 (the back conditions) are assessed at 20% and AC2
(the knee conditions) is assessed at the lower end of 6 – 14%
REASONS FOR DECISION
1 I apologise for the delay in issuing this decision, which follows an oral hearing on 13
July 2017. Mr Glyn Tucker, Senior Pensions and compensation Officer of the Royal
British Legion, represented the appellant. The Secretary of State was represented by
Mr Jonathan Lewis, of counsel. The appellant lives in Australia and did not attend the
hearing.
2 This is one of a number of recent cases in which the F-tT decided, on a review of an
assessment of disablement under the Naval, Military and Air Forces Etc. (Disablement
and Death) Service Pension Order 2006 (‘SPO 2006’), to revise the assessment to the
claimant’s detriment by reducing the existing percentage of disablement. In doing so,
the F-tT failed to refer to Article 44(4) of that Order. This is the ground upon which the
appellant was granted permission to appeal by a judge of the First-tier.
3 Article 44(4) imposes important limitations on the powers of the Secretary of State
(or tribunal on appeal) when exercising its power to revise an assessment to the
detriment of a claimant. In this case, it decided to reduce the percentage of
assessment from 40% to 30%.
4 Article 44 provides, as relevant to this decision, as follows:
Review of decisions, assessments and awards
44(4) Subject to the provisions of paragraph (9), following a review under paragraph (1)
of any decision accepting a claim for pension or any assessment of the degree of
disablement of a member of the armed forces, that decision or assessment may be
revised by the Secretary of State to the detriment of a member of the armed forces
only where the Secretary of State is satisfied that—
DP v Secretary of State for Defence (WP) [2017] UKUT 434 (AAC)
CAF/2789/2016 2
(a) the decision or assessment was given or made in consequence of
ignorance of, or a mistake as to, a material fact, or of a mistake as to the
law; or
(b) …; or
(c) there has been a change in the degree of disablement due to service since
the assessment was made.
5 The purpose of these conditions is to ‘ensure that a mere difference of opinion as to
the proper level of the assessment cannot justify a reduction in the assessment or the
consequent award’. It provides protection for claimants and it is incumbent on Firsttier Tribunals to make it clear which condition in article 44(4) is satisfied, and if so, why
- JM v Secretary of State for Defence (WP) [2014] UKUT 358 (AAC) at [14], Upper
Tribunal Judge Rowland. This is not to say that a failure to refer to the article explicitly
is inevitably fatal. That would amount to the triumph of form over substance. It may
be possible to infer from the decision that a condition was fulfilled, but it is dangerously
easy to go astray.
6 The conditions that need to be explored for the purposes of this decision are in
Article 44(4)(a) - ignorance of, or mistake as to material fact. These can be very
difficult to identify and generally require close analysis.
7 If a tribunal is relying on ignorance of material fact in order to revise an assessment,
it needs to work out the fact of which the Secretary of State was said to be ignorant.
The F-tT needs to identify the evidence that was before the Secretary of State and
what it contained. If, for example, at the date of decision the Secretary of State
actually possessed all of the medical reports said to be relevant, it would be difficult to
find that he was ignorant of their contents. He may have underestimated or
overestimated the significance of the evidence, but that does not mean he was
ignorant of facts. Equally, he may simply have made a controversial judgement call in
a difficult situation. That does not display ignorance of fact, either.
8 Where a tribunal seeks to rely on a mistake of fact, it must take care to distinguish
between fact and opinion. An opinion is a belief which may, or may not, be based on
rational analysis or objective facts. Where it is based on matters that are objectively
provable, so much the better. Sometimes, however, the basis of an opinion will not be
easy to discern. In this case, as will be seen, a medical report indicated that the
appellant would not be able to walk more than 50 metres, but it was difficult to see how
the GP arrived at that figure.
9 In order to classify what otherwise appears to be a mere opinion as a statement of
fact, it would be necessary to find that the person putting the opinion forward was
impliedly stating that he had reasonable grounds for believing his opinion to be correct.
So, if a tribunal is dealing with an expert opinion, or the opinion of someone who
claims to have particular knowledge of a matter in issue, that person may be making
an implied statement that he has reason grounds on which to base that opinion. An
expert opinion from, say, Dr A, which is devoid of clinical findings to support his
opinion, or sparse on how he arrived at his opinion, may be little better than an
assertion. Even though Dr A is a professional, his opinion may be rejected where
DP v Secretary of State for Defence (WP) [2017] UKUT 434 (AAC)
CAF/2789/2016 3
another doctor, Dr B, has set out how and why he has arrived at a different conclusion
for the patient.
10There are some matters, such as judging distances, that are usually treated as no
more than statements of opinion. This is because distance is notoriously difficult for
laymen to judge and it may well be that by saying ‘I can only walk x metres’ the
individual is just saying ‘I can’t walk very far’. The tribunal may, however, be able to
give ‘not very far’ some content by asking the right questions.
11More complex facts may also provide a basis for finding a mistake under article 44.
An adverse credibility finding that ‘the witness’s evidence was not reliable’ or ‘the
witness was not credible’ is generally based on instances in the evidence where the
tribunal finds that, for example, the witness’s memory was faulty or his evidence
contains inconsistencies that lead it to find that the witness is not telling the truth.
Flawed memory and/or inconsistency may taint the witness’s evidence on one or more
issues. In extreme cases, the witness’s credibility may be entirely undermined, but
that is unusual. In each instance, the tribunal has to explain why the evidence was
rejected. In so doing, it may need to find that, whilst x did not happen, y did happen.
Failure to refer to the Article 44
12 Given the protective nature of the provision and its complexity, it is plainly wise for
a First-tier Tribunal to refer expressly to Article 44(4) when it wishes to reduce an
assessment. That way, it can keep the conditions clear in its Statement of Reasons
and make sure that it has dealt with them fully.
13 An F-tT undoubtedly had the power to increase, decrease or maintain the
assessment subject to establishing that one or more of the conditions in Article
44 were satisfied.
14 In this appeal, the Records of Proceedings of all three members show that
the F-tT informed the appellant and his previous representative that the
assessment could increase, decrease or stay the same. It properly offered the
them the opportunity (which they declined) to take a break to discuss whether
they wished to proceed.
15 It was not, however, clear from this ‘warning’ whether the F-tT had anything
other than natural justice or fairness in mind. The appellant has rightly not
argued that there was any procedural fairness in the proceedings. But it did not
show, on the face of it, that the F-tT had Article 44(4) in mind, and this is the
problem.
16 So can it be inferred that the F-tT had Article 44(4) in mind? Alternatively, if
it cannot be inferred, did the F-tT nevertheless make all the findings necessary
for Article 44(4) and come to the only conclusion it could have come to on the
evidence before it?
Brief background of the appeal
DP v Secretary of State for Defence (WP) [2017] UKUT 434 (AAC)
CAF/2789/2016 4
17 The appellant was a private in the Army from 1986 – 89, serving in the ACC
(Army Catering Corp) as a chef. He would have had to participate in fitness
training. He was discharged from the Army in 1989 as medically unfit for any
service. He made a claim for a war pension in or around 1990 on the basis of
one injury, thoraco-lumbar rotational scoliosis (‘AC1’). The injury was assessed
at 6 – 14%. In 1999, the appellant requested a review. The Secretary of State
accepted that a second condition of ‘left knee syndrome’ (AC2). This did not
result in any increase in the assessment. 6 – 14% for given in composite.
18 In 2009 the appellant requested a review. His lower back was painful. He blamed
this on his period of service 20 years earlier. His back surgeon, Dr Parkinson, did not
consider AC1 (rotational scoliosis) to have anything to do with his lower back pain
(106, 22 November 2014). Medical reports carried out for the Secretary of State in
Australia, and for the appellant by various specialists indicate degenerative changes.
18 In 2010 the assessment was increased to 15 – 19% for the composite of both
conditions. He blamed this condition, as well as osteoarthritis in other parts of his
body, to his 3 years in service 24 years earlier. In November 2013, the appellant had
anterior lumbar interbody fusion surgery at L4/5 and L5/S1.
19 The assessment of 2010 was upheld by a tribunal which heard the case on
17/3/15. The percentage was rounded up to 20% (p107), effective from 13/06/13.
20 On 18/9/15, another tribunal accepted a third injury, severe lower back injury
(p108). From the evidence in the present bundle, it is not possible to see service basis
of that condition. There is no Statement of Reasons for the decision and the Secretary
of State did not appeal the decision.
21 On 30/9/15, the Secretary of State reassessed all 3 injuries at 40% from 13/06/13.
The two back injuries (AC1 and AC3) were combined for assessment purposes. The
appellant appealed because he considered that the assessment did not
adequately reflect his lost career, employment prospects, and lost earnings, nor
his constant pain, suffering and disability.
22 There was a large body of medical evidence. It indicated very little by way of
clinical signs to account for the levels of disablement and pain asserted by the
appellant. The thoraco-lumbar scoliosis was generally considered by practitioners to
be of minimal, or no significance. Indeed, until 2013 the appellant continued his career
as an HGV driver/instructor, driving heavy vehicles with manual gears and clutch
despite complaining of severe upper back and neck, and knee pain. He was reported
to have no problem walking at that time and to be exercising regularly in a medical
report from Western Australia.
23 The appellant had also begun to complain of pain in both of his knees. However,
his orthopaedic surgeon in Australia, Mr Baddeley, reported that the appellant’s right
knee was completely normal and his left was normal apart from an old slightly
attenuated ACL injury which on clinical examination resulted in no instability. His
conclusions were based on physical examination and MRIs carried out at the time.
DP v Secretary of State for Defence (WP) [2017] UKUT 434 (AAC)
CAF/2789/2016 5
What the Secretary of State argued
24 Mr Lewis argued that the Secretary of State was either ignorant of material
facts or made a mistake of fact in reaching his conclusion on the level of
assessment.
Ignorance of material fact
25 I do not consider that the Secretary of State can be said to be ignorant of
material facts. He appears to have had all of the medical reports in the bundle
before him at the material decision-making times and the medical practitioner
acting on the Secretary of State’s behalf referred to them in making his
decision. The medical advisers who reviewed the reports did not have the
advantage of the appellant’s oral evidence and, unsurprisingly, did not consider
the reports in the same detail as the F-tT, but I cannot see any ignorance of
material fact.
26 It is notable that, by the time that the third injury was accepted by the F-tT,
the appellant was asserting that the training he undertook included far more
than the Secretary of State had accepted, including frequent parachute jumps
and two jumps from walls of 12 feet and 15 metres to hard surfaces. Yet the
only jump documented in the medical records took place some 2 ½ years after
his discharge from service, from a 6 foot wall (p23 – 25). But these claims were
made in documents available to the Secretary of State and his medical
advisers, so ignorance of them is out of the question.
27 It might be said that the Secretary of State was ignorant of the fact that the
appellant was not being candid, or was not reporting his disability reliably. But
those were inferences that could have been made from evidence openly
available to the Secretary of State. Ignorance of fact
Mistake of material fact
28 Mr Lewis referred to the exposition of evidence and its analysis by the F-tT,
which led them to make a number of findings of fact on the basis of which (i) it
found the appellant an unreliable witness and (ii) considered it necessary to
reduce the award.
29 The F-tT’s analysis of the evidence was thorough. It made findings of fact
on troubling inconsistencies in the appellant’s evidence, amongst them
inconsistencies between what it observed during the hearing and the appellant’s
claims. These properly put to the appellant, who was unable to answer them
satisfactorily. provide an y or any satisfactory answer. They are in paragraphs
14 – 19 of the Statement of Reasons, which cover three closely typed pages.
DP v Secretary of State for Defence (WP) [2017] UKUT 434 (AAC)
CAF/2789/2016 6
30 On the evidence before it, the F-tT was certainly entitled to reject the
appellant’s claim that his disability had worsened. But this still does not answer
the important question of whether the F-tT had referred inferentially to Article 14
in their fact finding and reasoning.
31 I am satisfied by the closeness of the analysis of the evidence that the F-tT
must have had Article 44(4) in mind. There would have been no reason to go to
the trouble the F-tT went to in dissecting the evidence in the way it did, had it
not been considering its power under Article 44(4).
32 A War Pensions tribunal is, of course, also an expert or, at the very least a highly
specialist, tribunal. Its decisions should be respected unless
‘… it is quite clear that they have misdirected themselves in law.’ –
AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49 at [30] per
Baroness Hale of Richmond.
33 I consider it unlikely that a F-tT that dealt with this complex evidence so
skilfully and took such procedural care, would overlook such a fundamental
Article of the SPO.
34 It follows that I accept that it is implicit in the F-tT’s decision that the
Secretary of State made a mistake of fact in reaching the assessment that he
did. I agree with Mr Lewis that it is possible to work out how the F-tT reached
its conclusions, which cumulatively imply a mistake of fact.
35 Had I not come to this conclusion, I would have found that despite its error, the FtT came to the only conclusion that it could have come to on the evidence.
36 I do not accept that F-tTs should necessarily draw back from exercising their
power under Article 44(4) by remitting the matter to the Secretary of State. Certainly in
cases where the appellant attends an oral hearing, the specialist F-tT is uniquely
placed to explore the evidence in a way that the Secretary of State simply cannot.
[Signed on original] S M Lane
Judge of the Upper Tribunal
[Date] 31 October 2017
DS v Secretary of State for Defence (WP) [2016] UKUT 51 (AAC)
IN THE UPPER TRIBUNAL
ADMINISTRATIVE APPEALS CHAMBER
Case Nos. CAF/1961/2015
CAF/1962/2015
Before Upper Tribunal Judge Rowland
Decision: The claimant’s appeals are dismissed.
REASONS FOR DECISION
1. The claimant appeals, with my permission, against decisions of the First-tier Tribunal dated 19 March 2015 dismissing his appeals against decisions of the Secretary of State dated 1 February 2012 and 15 August 2014 making interim long-term assessments of the extent of the claimant’s disability in respect of a chronic knee condition – the conditions accepted as attributable to service were injury to right knee, chondromalacia right patella and menisectomies right knee – at 40% from, respectively, 8 August 2011 and 27 May 2014. Neither party has sought an oral hearing.
2. The claimant’s injuries were caused during his service as a regular soldier in the Army, which ended prematurely in 1969 when he was found permanently unfit for Army service. When he was discharged, he was awarded a disablement pension based on an assessment of disablement of 20%. The precise sequence of the early assessments and awards is not entirely clear from the documents before me but a long term interim assessment of 20% was made in 1972 and was maintained in 1998. The claimant applied for another review in 2011 and the assessment was increased to 40% by virtue of the decision of 1 February 2012 because there had been significant deterioration in his condition since 1998. The claimant appealed. The first two decisions of the First-tier Tribunal dismissing appeals from that decision were set aside by the Upper Tribunal (on files CAF/3077/2012 and CAF/2768/2014) and the case was remitted for hearing for a third time. Meanwhile, a further application for review in 2014 had resulted in the assessment of 40% being maintained on 15 August 2014. The claimant also appealed against that decision and that appeal was heard with the remitted appeal.
3. The claimant’s case before the First-tier Tribunal was that the assessments of 40% were too low. He contended that assessments of at least 60% would be more appropriate. The hearing took place on 19 March 2015 in the claimant’s absence, because he lived abroad. However, he was represented by the Royal British Legion and his son, who happened to be a student in England, appeared as a witness. The First-tier Tribunal dismissed his appeals and it is against those decisions that the present appeal is brought.
4. The claimant raised a very large number of grounds of appeal in his application to the First-tier Tribunal for permission to appeal, but he pursued only two in his application to the Upper Tribunal, perhaps because, in refusing the application to the First-tier Tribunal, the Chamber President of the War Pensions and Armed Forces Compensation Chamber gave a particularly detailed decision explaining why she considered that none of the grounds advanced in the application raised an arguable point of law. Although I did not formally limit the scope of the appeal, I indicated when I granted permission to appeal that I was not satisfied that either of the claimant’s present grounds was made out.
5. First, he submitted that the proceedings before the First-tier Tribunal were unfairly conducted because of the number and nature of the questions put to his son. I reject that ground and simply adopt the reasons given by the Chamber President in paragraph 11 of her refusal of permission to appeal for finding that no error of law was raised by that ground.
6. Secondly, he argued that the presiding judge should not have heard his appeals. He had argued in his written submissions to the First-tier Tribunal that he, as a person with a damaged limb, was in a worse and more painful position than a person who had had such a limb amputated. It seems to have become apparent at the hearing that the presiding judge had herself had precisely the same operation as the claimant had been advised to have but it had not been a success and she had had to have the limb amputated. The claimant argues that, because she had had a limb amputated, she would be biased, or appear to be biased, because “she would normally be a 40% disabled person asked to judge somebody who is not an amputee but is asking for a higher award”. That argument is untenable. It might be thought that the judge would have had valuable experience upon which to base her consideration of the claimant’s argument. That might have been favourable to the claimant or it might not: a fair-minded and informed observer, having considered the facts, would not conclude that there was a real possibility of bias merely because the judge had relevant personal experience.
7. However, it is important that, if views are formed in the light of personal experience, the parties are given an opportunity to comment on them. It may well be that that is how it became apparent to the claimant’s representative and son how similar the judge’s experience was to the claimant’s. The claimant says that there are nonetheless some matters mentioned in the reasons for decision that were not mentioned at the hearing and he says that these contradict the opinion of the orthopaedic surgeon who examined him abroad. He refers to the First-tier Tribunal saying that he should swim for exercise whereas the surgeon had said that he could not do physical exercise and to the First-tier Tribunal saying that he could drive an adapted car in 2014, whereas the surgeon said in 2013 that he could not drive. These, the claimant submits, are examples of the judge making assumptions based on her own experience.
8. I do not accept this argument in the circumstances of this case. Firstly, the surgeon’s views and those of the claimant himself were before the First-tier Tribunal, which was not bound by them. (Indeed, the First-tier Tribunal expressed in paragraph 62 of the statement of reasons its general agreement with the surgeon’s reports and its decision did not necessarily involve disagreement it. The surgeon had not specifically commented on the claimant’s ability to swim and, in relation to driving, it was common ground that the claimant had been able to drive an automatic car in 2011 and the surgeon did not refer in his 2013 report specifically to the question whether the claimant could drive a car that was adapted and automatic.) Secondly, the decision was made by all three members of the panel and not just by the presiding judge. One of the members of the panel was a doctor, albeit not an orthopaedic surgeon. Thirdly, it is quite clear both from the panel members’ notes of the hearing and from the statement of reasons itself that both the possibility of the claimant swimming and of him driving an automatic car were raised with the claimant’s son while he was giving evidence in the presence of the claimant’s representative. I accept that the claimant’s son’s ability to answer the questions might not have been as good as the claimant’s but, given that the claimant was not present at the hearing but had addressed the issues in written submissions, the First-tier Tribunal acted perfectly fairly. There was no breach of the rules of natural justice.
9. The claimant plainly disagrees with the First-tier Tribunal’s decisions. As is usual in assessment appeals, there were two broad issues to be considered by the First-tier Tribunal. The first was the question of fact as to what the practical effects of the accepted conditions actually were at the dates of the Secretary of State’s decisions. The second was the question of judgement as to what assessment, expressed in terms of a percentage, was appropriate for the purposes of the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 2006 (SI 2006/606) in the light of the practical disablement from which the claimant suffered at each date and the terms of the Order. The claimant’s disagreement encompasses both elements of the decisions.
10. However, such questions of fact and judgement are very much matters for the Secretary of State and, on appeal, the First-tier Tribunal. An appeal to the Upper Tribunal lies only on a point of law and so, in the absence of an error of law, the Upper Tribunal is not entitled to interfere with the findings of fact and exercise of judgement of the First-tier Tribunal.
11. In relation to the findings of fact as to the extent of the claimant’s practical disablement at each of the material dates, the First-tier Tribunal’s decision is, in my judgement, unassailable. I can see no error of law. The statement of reasons is more than adequate as a document showing that the First-tier Tribunal considered the relevant evidence, made clear findings that it was entitled to make in the light of that evidence and had good reasons for those findings.
12. It was in relation to the fixing of the percentage for the purposes of the 2006 Order that I granted permission to appeal. I said –
“4. It seems to me that assessing disablement requires some consideration of the degrees of disablement prescribed in Part V of Schedule 1 to the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 2006 (SI 2006/616), whereas the First-tier Tribunal seems to have concentrated on the extent to which the claimant could manage the activities mentioned in paragraph 63 of the statement of reasons and has not mentioned the Schedule. Obviously, the extent to which the claimant can carry out such activities may be relevant to the assessment of disablement but a profoundly deaf person might be able to drive a car, travel by taxi, hold down employment, go shopping and go swimming and yet would be entitled to an assessment at 100% on the ground of “absolute deafness”. Thus, an assessment at 100% does not require practical total disablement and it is arguable that, notwithstanding its experience, the First-tier Tribunal lost sight of the need to compare the claimant’s disability with those of people with prescribed degrees of disablement. Moreover, as the claimant has submitted, a person with a painful limb may be more disabled, at least in some respects, than a person who had had the limb amputated.
5. Given the history of this case and the relative detail of the First-tier Tribunal’s findings of fact, this may be a case where, if the claimant’s appeal were to be allowed and one or both of the decisions of the First-tier Tribunal were to be set aside, the Upper Tribunal would be able to substitute its own assessment(s) rather than remitting the case(s) to the First-tier Tribunal. It would therefore be helpful if both parties were to suggest what the appropriate degree of disablement is on the basis of those findings or, alternatively, to suggest in what respects the findings are not adequate for the purpose of making an assessment.
6. Both in considering whether the assessments are unreasonably low and in considering, if necessary, what assessment(s) should be substituted, I would be greatly assisted by any guidance or framework that is used by the Secretary of State’s medical advisors when certifying degrees of disablement in the light of findings recorded in an examination report in a case where no degree of disablement is prescribed. I therefore ask the Secretary of State to attach to his response to this appeal any such guidance, framework or similar document that exists.”
13. The appeal is resisted in a short submission on behalf of the Secretary of State, in which it is argued that, because the claimant is not an amputee with an injury within the scope of Part V of Schedule 1 to the 2006 Order, article 42(6) of the Order did not apply and it was unnecessary for the First-tier Tribunal to refer to Part V of the Schedule. It is further submitted that the First-tier Tribunal approached the case correctly in the light of article 42(2) – which I accept it accurately summarised in paragraph 12 of its statement of reasons – and there is appended to the submission a “Medical Comment” by Dr Anne Braidwood CBE, the medical adviser to the Deputy Chief of Defence Staff (Personnel), which is effectively a more detailed submission in support of the First-tier Tribunal’s decision. She, in turn, appends to her Medical Comment a desk aid for medical advisers (MPM200), updated in February 2015, and a report dated March 2015 by the Independent Medical Expert Group (established in 2010 to provide medical and scientific advice on the Armed Forces Compensation Scheme) of which she is a member. No further internal guidance was provided.
14. The claimant has replied to the Secretary of State’s submission and Dr Braidwood’s Medical Comment. In his reply, he said that he had been trying to obtain from the Ministry of Defence a document written by Dr Braidwood that had been before the Administrative Court in Secretary of State for Defence v Rusling [2003] EWHC 1359 (QB). He said that he had been advised that it was not available for the public to see. The relevant documents that were mentioned in paragraph [13] of Rusling are the War Pensions Medical Advisers Instructions and Procedures Manual (2000) and a document known as MPM57A. After some rather odd correspondence in the course of which the Ministry of Defence appears to have said that the Manual was defunct and that it no longer had a copy, despite the fact that it had sent the claimant a hard copy two days earlier, electronic copies of both documents were eventually sent by the Ministry of Defence to the claimant together with an electronic copy of the Veterans Agency Medical Adjudication Guidance. MPM57A is the Veterans Agency Medical Handbook. These documents may now all be found on the Government website.
15. Neither party has drawn those documents to my attention but I have looked at them. Their contents are not terribly surprising, being similar to documents used for years in relation to the similar industrial injuries scheme: see for instance the Handbook for Industrial Injuries Medical Boards (HMSO, 1970), which included suggested assessments for ankyloses, deafness and defective vision that are identical to, or almost identical to, those on the desk aid produced in the present case. The desk aid also includes suggested assessments for psychiatric disorders. The documents that were sent to the claimant and are now on the website were published between 2000 and 2003 and are said to be no longer in use. Presumably there are some current equivalents in addition to the “Synopses of Causation” that are also on the website but I will assume that there is nothing in them that could be of any assistance in the present case. Why the Ministry of Defence considers that these types of documents should not be routinely published in the way that similar guidance to social security decision-makers is published by the Department for Work and Pensions I have no idea. Quite apart from the interests of claimants and their representatives, it does not seem to be in the Ministry’s own interests that the generally coherent background to its decision-making should not be understood by the world at large and, in particular, by tribunals who have to consider the correctness of individual decisions. Public scrutiny might encourage improvement where that is necessary but, for the most part, the guidance that has now been published is uncontroversial and awareness of it is likely to be helpful to all concerned, although I do not need to refer to the documents in detail in this case in the light of Dr Braidwood’s Medical Comment which addresses more directly the facts of this particular case.
16. The facts found by the First-tier Tribunal are set out at paragraphs 48 to 50 of the statement of reasons –
“48. The Appellant was 65 years of age at the time of the hearing. He had served in the Army from 18th March 1966 to 3rd November 1969 when he was medically discharged as a consequence of a knee injury. He subsequently worked as a Textile Consultant which involved substantial amount of foreign travel. He stopped work in 2008 when he gave up work due to the problems with his right knee.
49. At the time of the decision in February 2012:
· He could walk 200 metres before he needed to stop or suffered severe discomfort;
· He sometimes used a stick when walking;
· He did not need the assistance of another person to walk;
· He found going up and down stairs difficult but managed to do this himself with the aid of a stick;
· He found it difficult to put on shoes and socks on the right and needed to use a long handled shoe horn or assistance from his family;
· He would have been able to drive an adapted automatic car, using his left foot;
· He would have been able to carry out a sedentary office job as long as this did not involve significant walking or standing and allowed him the opportunity to move around from time to time;
· He would have been able to swim and it is probable that this would have improved the condition of his right knee;
· He had taken some anti-inflammatory medication prescribed by his GP but had not had any physiotherapy or hydrotherapy or other treatment and had not been referred to an Orthopaedic specialist;
· He could not squat, run, cycle or take part in sport;
· The muscle wasting in his right thigh had increased from 2cm in 1998 to 2.5cm in December 2011:
· No abnormality was present in his left or right hip, left leg or back in December 2011 and the tone and power in both legs was normal;
· The Appellant would have been able to travel around and to go shopping using suitable aids;
· He was no longer able to play bowls or to go dancing with his wife and could not play sports, walk the dog or cut the lawn and look after the garden.
50. At the time of the decision on 15th August 2014:
· The condition of his right knee had deteriorated with the flexion contracture now being 20 degrees;
· He could walk 50 metres before he needed to stop or suffered severe discomfort;
· He used a stick when walking;
· He did not need the assistance of another person to walk;
· He found going up and downstairs difficult but managed to do this himself with the aid of a stick;
· He found it difficult to put on shoes and socks on the right and needed to have assistance from his family;
· He would have been able to drive an adapted automatic car, using his left foot;
· He would have been able to carry out a sedentary office job as long as this did not involve significant walking or standing and allowed him the opportunity to move around from time to time;
· He would have been able to swim and it is probable that this would have improved the condition of his right knee;
· He had occasionally taken some anti-inflammatory medication and Paracetamol .prescribed by his OP but had not had any physiotherapy or hydrotherapy or other treatment and had not been referred to an Orthopaedic specialist, only having seen an Orthopaedic Specialist in connection with the War Pension claims;
· He could not squat, run, cycle or take part in sport;
· The muscle wasting in his thigh had increased from 2.5cm in December 2011 to 3cm in November 2013;
· No abnormality was present in his left or right hip, left leg or back in November 2013 and the tone and power in both legs was normal;
· The Appellant would have been able to travel around and to go shopping using suitable aids;
· He was no longer able to play bowls or to go dancing with his wife and could not play sports, walk the dog or cut the lawn and look after the garden.”
17. I need not set out all of the First-tier Tribunal’s reasons for making those findings and rejecting the arguments advanced by, and on behalf of, the claimant as to the practical extent of his disablement, but I should set out the last paragraph of those reasons (to which I referred in my Direction above) and also the reasons for rejecting the submission that 40% was too low an assessment –
“63. The Tribunal noted the list of functional limitations referred to by the Appellant in his application for permission to appeal in July 2012. The Tribunal did not accept all the functional limitations set out by the Appellant at that time:
a) Travelling around — the Tribunal concluded that the Appellant could walk 200 metres as at February 2012 for the reasons stated above. The Appellant: could drive an automatic vehicle in 2011 and would have been able to have an automatic car adapted to allow him to operate the foot pedals with his left leg. The Tribunal therefore considered that he had the ability to drive in February 2012, August 2014 and at the date of the hearing in March 2015. Furthermore the Tribunal noted the evidence from his son that the Appellant could get down the stairs and walk 40 metres to a taxi in February 2012 which would give another way of travelling to different places. In relation to travel to and from the UK and within the UK it would have been possible for the Appellant to arrange assistance when travelling by air and rail. The Tribunal therefore rejected the suggestion that the Appellant could not travel around;
b) The Tribunal also considered this to be the case in August 2014 as the Appellant still retained the ability to travel by taxi, could walk 50 metres and in the view of the Tribunal could drive an automatic car;
c) Work in a normal job — the Tribunal accepted that the Appellant would have difficulty in carrying out his previous employment. The Tribunal did not, however, consider that office based work would be precluded on the basis of a problem with one knee as long as the Appellant had the ability to get up on occasions and as long as the job did not involve substantial walking. The Tribunal therefore rejected the suggestion that the Appellant was totally precluded from employment in February 2012 or August 2014;
d) Going Shopping — the Appellant retained the ability to walk 200 metres with a stick in February 2012, could drive and use a taxi. The Tribunal considered that this would allow him to do some shopping. In addition if a wheelchair or mobility scooter was used for longer distances, this would allow the Appellant to do more extensive shopping. The Tribunal accepted that shopping would be more difficult in August 2014 as the Appellant's walking ability had reduced to 50 metres. The Tribunal, however, still considered that the Appellant would be able to do some limited shopping and more extensive shopping if appropriate aids were used;
e) Driving — see comments above. The Tribunal concluded that the Appellant retained the ability to drive an automatic vehicle as there was no medical evidence confirming abnormality in his other leg;
f) Swimming — no good reason was given as to why the Appellant would not be able to go swimming, particularly in 2012 when it was suggested that his need for assistance with dressing was much more limited. Indeed the Tribunal considered that swimming was likely to be beneficial for the Appellant as it would allow him to exercise without the need to weight bear. In view of the fact that the Appellant reported assistance with putting on socks and shoes in August 2014 the Tribunal considered it probable that he would have needed accompanying to go swimming by that date. The Tribunal, however, considered that it would still be beneficial to the Appellant to go swimming and that he retained the ability to exercise in water; the Tribunal considered the suggestion from the Appellant's son that he might drown to be without foundation;
g) Socialising — the Tribunal accepted that the Appellant would not be able to take his wife dancing or to play sport as he did before. They did not, however, accept that this would prevent the Appellant socialising in February 2012 or August 2014 [in] view of their conclusions above about his ability to drive/ take a taxi.
64. Taking into account all the matters set out above the Tribunal considered that it was appropriate to increase the assessment from 20% in February 2012. They considered that 40% was a generous assessment but not outside the range of what would be a reasonable award. They therefore did not consider that there were grounds to reduce this assessment. For the reasons stated above they were not persuaded that an assessment of more than 40% was reasonable.
65. The Tribunal did take account of the fact that the Appellant's condition had deteriorated by August 2014 with slightly more restricted movement and a reduced walking ability. They did not, however accept that this greatly increased the functional limitations of the Appellant and noted that he continued to receive minimal treatment for his knee with less medication apparently being taken in November 2013 than in December 2011. Taking into account the points set out above they did not consider that the deterioration was sufficient to increase the assessment to 50%. They therefore concluded that a long term assessment of 40% remained reasonable.”
18. The statutory provisions relating to the assessment of disablement are to be found in article 42 of, and Schedule 1 to, the 2006 Order. So far as is material, article 42 provides –
“42.—(1) The following provisions of this article shall apply for the purposes of the assessment of the degree of the disablement of a member of the armed forces due to service before 6th April 2005.
(2) Subject to the following provisions of this article—
(a) the degree of the disablement due to service of a member of the armed forces shall be assessed by making a comparison between the condition of the member as so disabled and the condition of a normal healthy person of the same age and sex, without taking into account the earning capacity of the member in his disabled condition in his own or any other specific trade or occupation, and without taking into account the effect of any individual factors or extraneous circumstances;
(b) for the purpose of assessing the degree of disablement due to an injury which existed before or arose during service and has been and remains aggravated thereby—
(i) in assessing the degree of disablement existing at the date of the termination of the service of the member, account shall be taken of the total disablement due to that injury and existing at that date, and
(ii) in assessing the degree of disablement existing at any date subsequent to the date of the termination of his service, any increase in the degree of disablement which has occurred since the said date of termination shall only be taken into account in so far as that increase is due to the aggravation by service of that injury;
(c) where such disablement is due to more than one injury, a composite assessment of the degree of disablement shall be made by reference to the combined effect of all such injuries;
(d) the degree of disablement shall be assessed on an interim basis unless the member's condition permits a final assessment of the extent, if any, of that disablement.
…
(5) The degree of disablement assessed under the foregoing provisions of this article shall be certified by way of a percentage, total disablement being represented by 100 per cent (which shall be the maximum assessment) and a lesser degree being represented by such percentage as bears to 100 per cent the same proportion as the lesser degree of disablement bears to total disablement, so however that a degree of disablement of 20 per cent or more shall be certified at a percentage which is a multiple of 10, and a degree of disablement which is less than 20 per cent shall, except in a case to which Table 1 of Part III of Schedule 1 applies, be certified in a manner suitable for the purposes of Table 2 of Part III of that Schedule.
(6) Where a disablement is due to an injury specified in Part V of Schedule 1 or is a disablement so specified, and, in either case, has reached a settled condition, the degree of that disablement shall, in the absence of any special features, be certified for the purposes of this article at the percentage specified in that Part as appropriate to that injury or to that disablement.
…
(14) The degree of disablement certified under this article shall be the degree of disablement for the purposes of any award made under this Order.”
19. Part V of Schedule 1 is in the form of a table.
PART V
ASSESSMENT OF DISABLEMENT CAUSED BY SPECIFIED
INJURIES AND OF CERTAIN OTHER DISABLEMENTS
Description of Injury
Assessment
Amputation Cases – Upper Limbs
per cent
Loss of both hands or amputation at higher sites
100
Forequarter amputation
100
Amputation through shoulder joint
90
Amputation below shoulder with stump less than 20.5 centimetres from tip of acromion
80
Amputation from 20.5 centimetres from tip of acromion to less than 11.5 centimetres below tip of olecranon
70
Amputation from 11.5 centimetres below tip of olecranon
60
Loss of thumb
30
Loss of thumb and its metacarpal bone
40
Loss of 4 fingers
50
Loss of 3 fingers
30
Loss of 2 fingers
20
Loss of terminal phalanx of thumb
20
Amputation Cases – Lower Limbs
per cent
Double amputation through thigh, or through thigh on one side and loss of other foot, or double amputation below thigh to 13 centimetres below knee
100
Double amputation through leg lower than 13 centimetres below knee
100
Amputation of one leg lower than 13 centimetres below knee and loss of other foot
100
Amputation of both feet resulting in endbearing stumps
90
Amputation through both feet proximal to the metatarso-phalangeal joint
80
Loss of all toes of both feet through the metatarso-phalangeal joint
40
Loss of all toes of both feet proximal interphalangeal joint
30
Loss of all toes of both feet distal to the proximal interphalangeal joint
20
Hindquarter amputation
100
Amputation through hip joint
90
Amputation below hip with stump not exceeding 13 centimetres in length measured from tip of great trochanter
80
Amputation below hip and above knee with stump exceeding 13 centimetres in length measured from tip of great trochanter, or at knee not resulting in end-bearing stump
70
Amputation at knee resulting in end-bearing stump, or below knee with stump not exceeding 9 centimetres
60
Amputation below knee with stump exceeding 9 centimetres but not exceeding 13 centimetres
50
Amputation below knee with stump exceeding 13 centimetres
40
Amputation of one foot resulting in end-bearing stump
30
Amputation through one foot proximal to the metatarso-phalangeal joint
30
Loss of all toes of one foot proximal to the proximal interphalangeal joint, including amputations through the metatarso-phalangeal joint.
20
Other Specific Injuries
per cent
Loss of a hand and a foot
100
Loss of one eye, without complications, the other being normal
40
Loss of vision of one eye, without complications or disfigurement of the eyeball, the other being normal
30
Loss of sight
100
Other Disablements
per cent
Very severe facial disfigurement
100
Absolute deafness
100
Mesothelioma
100
------------------------------------------------------------------------------------------------------
Note:– Where the scheduled assessment for a specified injury involving multiple losses differs from the sum of the assessments for the separate injuries, the former is the appropriate assessment.
_____________________________________________________________________________________
20. In her Medical Comment, Dr Braidwood explains how the legislation is applied by the Secretary of State. So far as is material, she says –
“3. The purpose of assessment in war pensions is to provide equitable and consistent outcomes in terms of compensation awards made and reflecting the very broad spectrum of injuries, including wounds and diseases, which the War Pensions Scheme is able to consider and accept. There is also a need in a public no fault jurisdiction to maintain vertical and horizontal equity. By vertical equity we mean that for a category such as hearing loss more severely disabling disorders will attract higher awards and similarly for horizontal equity disablements affecting the different body systems with very different disabling effects are treated equitably.
…
6. The war pensions legislation also includes a list of statutory scheduled assessments (SSA). These are important for their own sake and must apply where a claimed disablement and underlying injury precisely meet the description. They are also important in acting as sign posts for all other assessments in the Scheme. These features reflect the antiquity of the Scheme and its early focus on combat related trauma. The statutory scheduled assessments were reviewed by the Hancock Committee in 1947 and the McCorquodale Committee in 1966. On both occasions they were found to be sound.
7. The medically certified level of assessment does not have a medical purpose in the sense of informing the need or extent of rehabilitation etc. but is a surrogate measure for award to be paid. The maximum assessment is 100% and this may derive from multiple accepted conditions where a combined assessment will be certified or from a single condition e.g. loss of sight. The clinical picture and disabling effects of 100% disabled pensioners are therefore very variable and at the individual level an assessment of 100% simply implies that as a result of accepted disorder/s the person meets the minimum disablement to attract the maximum award.
8. War pensions assessment is not an exact science, tightly regulated or rules based and there is no text book. It includes a large measure of judgment. To meet this, prior to joining, war pension medical advisers must have a proven clinical record and relevant experience. This enables them to be familiar with a range of disorders, their disabling effects and the likely average as well as range of pain and suffering associated with disorders. In line with the requirement not to take into account "...individual factors or extraneous circumstances", it is policy to assume that the claimant will seek appropriate diagnosis, investigation and treatment for disorders. This of course is subject to restriction on account of age or other non-attributable disablement which make operation hazardous or otherwise clinically inadvisable. While there is some flexibility, assessments cannot be certified based solely on claimant history. As far as possible the certifying doctor should seek other objectively verifiable evidence which supports the claimant's history i.e. is consistent with it and can take account of evidence which suggests either under-reporting or exaggeration, both of which occur.”
(My emphases.)
21. I do not consider that there is anything controversial in that analysis. It appears to be consistent with what Judge Jacobs said in CT v Secretary of State for Defence [2009] UKUT 167 (AAC) and what I said in AM v Secretary of State for Defence (WP) [2013] UKUT 97 (AAC). In any event, I agree with it. In particular, the sentences in paragraphs 3, 6 and 7 that I have emphasised explain why Part V of Schedule 1 was relevant in the present case, notwithstanding that the claimant had not incurred an injury mentioned in the Schedule and notwithstanding the lack of any express provision requiring regard to be had to the Schedule in such cases. There is such an express provision in the similar industrial injuries scheme (see regulation 11(8) of the Social Security (General Benefit) Regulations 1982 (SI 1982/1408)) but the lack of an equivalent provision in article 42 of the 2006 Order cannot reasonably be considered significant because it is inconceivable that the draftsman of the Order had in mind that there should not be the sort of horizontal equity described by Dr Braidwood. Such horizontal equity cannot be achieved other than by having regard to the Schedule in cases to which the Schedule does not actually apply, as Dr Braidwood recognises in paragraph 6 of her Medical Comment when she refers to using the assessments in the Schedule as “sign posts for all other assessments in the Scheme”. This is particularly important in light of the point that Dr Braidwood correctly makes in paragraph 7 of her Medical Comment that, notwithstanding the use of the phrase “total disablement” in article 42(5), it is clear from the Schedule that total disablement is not in fact required for an assessment of 100%. Horizontal equity requires that also to be borne in mind in cases where the Schedule does not apply. It follows that there is a risk of under-assessing a claimant if too much weight is placed on what the claimant can do, rather than on what he or she cannot do. This is the point I was making in paragraph 4 of my observations when granting permission to appeal.
22. So, did the First-tier Tribunal make that error in the present case?
23. Although it was bound to have regard to the Schedule in general terms, it did not necessarily err in law in not expressly referring to it. The assessment of disablement under the 2006 Order is an issue that arises in a significant proportion of cases before the War Pensions and Armed Forces Compensation Chamber of the First-tier Tribunal and it would be unrealistic to think that any judge or member of that Chamber would be ignorant of the Schedule. It might be slightly less unrealistic to think that they sometimes fail to appreciate all its implications, particularly as decisions on assessments of disablement seldom, if ever, contain much in the way of legal reasoning and the Secretary of State’s submissions in support of his assessments are usually equally devoid of legal reasoning. Dr Braidwood says –
“9. In addition to the legislation, a desk aid (attached at Annex 1) is provided to war pensions medical advisers setting out the Statutory Scheduled Assessments (SSA) as well as assessment methods for visual acuity and noise induced hearing loss. Training involves supervised case consideration, discussion and mentoring by the Medical Training Officer as well as monthly case discussion and group sessions where topics such as difficult cases and categories of case, recent UTT decisions are discussed with the medical advisers as a group.”
Unfortunately, the learning and experience that lies behind assessments is not always conveyed to the claimant or the First-tier Tribunal through reasons for assessments, submissions in support of assessments, or, hitherto, the publication of guidance.
24. However, the First-tier Tribunal has its own expertise and the Upper Tribunal should be slow to interfere with its assessments provided it has made clear findings of fact and its decisions do not appear to be aberrant or its reasoning to suggest that it has misapplied the law. As Judge Jacobs said in CT when considering the adequacy of reasoning in an assessment case, “[i]n some cases, the facts will speak for themselves and it will not be necessary as a matter of law to say more”. That may in practice be true in most assessment cases, unless some specific argument about the appropriate assessment has been advanced and ought to have been addressed by the First-tier Tribunal. In this case, I do not consider that further reasoning was required.
25. Apart from arguing that he was more disabled than the First-tier Tribunal found him to be, the claimant’s principal argument in respect of the assessment was to the effect that a person with a painful limb is more disabled than a person who has had an amputation and does not suffer pain and is entitled to an assessment of 40%. It seems to me to be obvious that whether that is so or not depends on the circumstances of the particular cases and in particular the amount of pain from which either person suffers and the extent to which the person who has not had the amputation still has useful function in the limb. In this case, the claimant did still have some useful function in his right leg and could walk to the extent found by the First-tier Tribunal. I accept that some people who had had a leg partially amputated might, with a prosthesis, have been able to walk further and with less pain, but the complete loss of part of a limb and a need to wear a prosthesis cannot be regarded as negligible considerations. There is no general rule such as the claimant suggests.
26. Dr Braidwood submits that the assessments at 40% were reasonable in this case. She says –
15. Osteoarthritis (OA) knee is a common chronic disabling condition which may arise secondarily to injury or operative treatment including removal of menisci. This is especially at the dates relevant here where the less disruptive arthroscopic surgery was not yet established. OA is also found in a proportion of the UK population increasing with age and without any obvious trigger. There may be family history or perhaps exposure to heavy manual work over a lifetime. There is no direct relation between symptoms reported and radiographic appearance or joint damage and the disorder is usually investigated to confirm pathology and best practice management e.g. weight reduction, physiotherapy and maintenance of mobility as well as pain killers and anti-inflammatory drugs taken chronically. In time operative intervention, notably partial or total knee replacement is the operation of choice. Advances in anaesthesiology and operative technique mean the operations are associated with high success rates, especially of pain reduction and increase in function. In the context of war pensions where the claimant has wide gateways to review the Secretary of State can also review and 18 months to two years post surgery the level of disablement is likely to have reduced.
16. Given the SSA and the fact that a below knee amputation is assessed at 40%, medical advisers commonly certify this level of disablement for the more severe levels of arthritis with mobility restriction and at a stage where clinically operative intervention would take place. An assessment above that level may be certified unusually, where operative treatment has been unsuccessful or given rise to complications e.g. infection. In most such cases entitlement will be extended to cover the unexpected occurrence. We note [the claimant’s] comments re amputation we are not able to agree that, especially as a person ages, the functional and symptomatic outcome is necessarily as he describes. We attach a copy of the Third IMEG Report March 2015 which looked at the evidence on the progress and consequences of amputations over time. This includes disabling pain of various types and origin as well as increased cardiovascular risk.
27. That the claimant may underestimate the frequency with which amputees suffer pain, as Dr Braidwood submits by reference to the IMEG report, does not seem to me to undermine his argument. The assessment of disablement of those suffering injuries specified in Part V of Schedule 1 is not completely inflexible, because article 42(6) permits a departure if there is a “special feature” and in any event applies the Schedule only if “disablement … has reached a settled condition”. In consequence, paragraph 225 of the Handbook stated that “When there are complications such as infection or pain the prescribed assessments no longer apply.” A higher assessment would apply instead. Thus, the claimant is entitled to argue that the correct comparator for an assessment of 40% is the person with a below-knee amputation and without significant disabling pain.
28. However, it does not follow that a person in his position whose mobility is impaired by pain is entitled to a higher assessment. Since it is pain that restricts his mobility, the fact that he suffered from pain was obviously accepted and factored in to the assessments of the First-tier Tribunal and Dr Braidwood’s arguments.
29. Some important guidance can be obtained from other provisions in the 2006 Order. Thus, it is the implication of article 20(1)(b)(ii) and (iii), relating to the mobility supplement, that a person with an injury “restricting his leg movements to such an extent that his ability to walk (with any prosthesis or artificial aid) without severe discomfort is of little or no practical use to him” or “restricting by physical pain or breathlessness his ability to walk to such an extent that it is of little or no practical use to him” might have his or her disablement assessed at only 40%, because that is the threshold for entitlement to the mobility supplement. Less compellingly perhaps, it may also be noted that the threshold for unemployability allowance under article 12 is now an assessment of disablement of 60% – except for those with transitional protection – and the claimant was found by the First-tier Tribunal not to have been unemployable in either 2012 or 2014.
30. Ultimately, I am not persuaded that the assessments of 40% in this case were aberrant so as to justify inferring that the First-tier Tribunal misdirected itself as to the law. Dr Braidwood’s submission as to the appropriate assessment is made against the background of both her considerable practical experience and a correct understanding of the law and it does not appear to me to be unreasonable. That is not to say that the First-tier Tribunal could not have made a higher assessment, particularly in the appeal from the 2014 assessment. However, it considered whether the deterioration in the claimant’s condition between 2012 and 2014 justified increasing the assessment and it gave a rational reason for maintaining it at 40%.
31. Nor do I consider that the First-tier Tribunal’s reasoning in this case suggests that it misapplied the law. When it referred in paragraph 64 of its decision to “all the matters set out above”, it was clearly referring to its findings of fact and all its other reasoning from paragraph 48 onwards and not just to what it had said in paragraph 63. Although in its findings and in paragraph 63 it referred to a large number of activities that the claimant could carry out as well as those he could not, that was a necessary part of its reasoning in this case because the claimant had relied on not being able to carry out the activities mentioned in that paragraph as supporting his argument for a higher assessment. The fact that the First-tier Tribunal did not accept that the claimant’s life was curtailed to the extent he claimed was therefore an important reasons for rejecting his argument that he was entitled to an assessment of 60%. In the context of this case, that does not suggest that the First-tier Tribunal forgot that actual total disablement is not required for an assessment of 100%. This is supported by the fact that the assessment does not appear aberrant.
32. Accordingly, I am satisfied that the First-tier Tribunal did not err in law in this case. The reason that it rejected the claimant’s submission that he was entitled to an assessment of 60% was essentially because it did not accept that he was as disabled as he said he was. That was a finding of fact it was entitled to make and with which, in the absence of any error of law, the Upper Tribunal has no power to interfere. These appeals must therefore be dismissed.
Mark Rowland
29 January 2016
DT v Secretary of State for Work and Pensions (DLA) [2015] UKUT 390 (AAC)
IN THE UPPER TRIBUNAL Case No. CDLA/5300/2014
ADMINISTRATIVE APPEALS CHAMBER
Before: M R Hemingway: Judge of the Upper Tribunal
Decision: The decision of the First‑tier Tribunal sitting at Bradford on 10 July 2014 under reference SC950/14/00470 involved an error of law and is set aside.
The appeal is remitted for determination at an oral hearing before a completely differently constituted tribunal.
This decision is made under section 12(1), 12(2)(a) and 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007.
DIRECTIONS
Subject to any later directions by a district tribunal judge of the First‑tier Tribunal, the Upper Tribunal directs as follows:
(1) The new hearing shall be an oral hearing. It shall take place before a completely differently constituted tribunal to that which considered the appeal on 10 July 2014.
(2) The hearing shall be one in relation to which the appellant has been given a reasonable opportunity of fully participating in. That might involve, for example and where appropriate, consideration of the holding of a domiciliary hearing or a hearing at a particular location familiar to the appellant (perhaps a community building or a doctor’s surgery close to her home) or a hearing in which she is able to attend by telephone.
(3) If the parties have further written evidence, in particular medical evidence, to put before the new tribunal, this should be sent to the appropriate HMCTS office within one month of the issue of this decision. Any further evidence, to be relevant, will have to relate to the circumstances as they were as at the date of the original decision of the Secretary of State under appeal (10 December 2013).
(4) The differently constituted tribunal must conduct a complete rehearing of the issues raised by the appeal and, subject to its discretion under section 12(8)(a) of the Social Security Act 1998, any other issues that merit consideration.
(5) The new tribunal must consider all aspects of the case, both fact and law, entirely afresh.
(6) The tribunal must not take into account any circumstances that were not obtaining at the date of the decision appealed against – see section 12(8)(b) of the 1998 Act – but may take into account evidence that came into existence after the decision was made and evidence of events after the decision was made, insofar as it is relevant to the circumstances obtaining at the date of the decision.
REASONS FOR DECISION
The issue raised by this appeal
1. The issue raised by this appeal is whether the appellant is entitled to have her previous award of disability living allowance renewed from 7 March 2014, and, if so, in respect of which components, at what rate or rates and for what period of time.
The background
2. The appellant was born on 19 May 1966. She has health difficulties which include agoraphobia, asthma, depression, hypertension, anxiety and angina. She made a previous claim for disability living allowance which, ultimately, and after a successful appeal, led to an award of the lower rate of the mobility component and the middle rate of the care component of disability living allowance from 7 March 2012 to 6 March 2014. The award of the middle rate of the care component was on the basis of night‑time needs. The appellant, within the currency of the previous award, applied for her award to be renewed.
3. The respondent obtained a medical report from the appellant’s GP which indicated that she had the above health problems, that she would experience panic attacks and that her agoraphobia was severe and had been so since 2003. The report is dated 26 November 2013. The respondent decided, on 10 December 2013, to renew the award but on the basis that she was entitled to the lower rate of the mobility component only from 7 March 2014 to 6 March 2019. The appellant sought to challenge the award but it was confirmed on mandatory reconsideration and she appealed to the First‑tier Tribunal (F‑tT).
The tribunal’s decision
4. The appellant, whom it seems did not have a professional representative at that stage, indicated that she wanted her appeal to be decided “on the papers”. In a short explanatory letter she stated that she did not feel she could attend the hearing in person because she has panic attacks in such situations and does not like going to strange places. In this context it is to be noted that the GP report of 26 November 2013 did contain the observation that her severe agoraphobia caused her great difficulty in attending appointments and did say that “if you need to see her then a visit may be better”. That remark appeared to be directed towards the respondent rather than to any tribunal but it was before the F‑tT.
5. The F‑tT decided it would be appropriate to determine the appeal without a hearing. By way of explanation it said this:
“ 2. The Appellant opted to have her appeal heard on the papers i.e. without an oral hearing; she indicated that she would be unable to attend an oral hearing.
The Tribunal considered all the available evidence and decided that there was sufficient evidence to make a reasoned decision without the need for any adjournment and without the need for any further evidence, medical or otherwise.
In deciding to proceed on the papers the Tribunal considered both the overriding objective in rule 2 and the provisions of rule 27(1) of the Tribunal Procedure Rules 2008.”
6. The F‑tT then went on, in its statement of reasons for decision (statement of reasons), to consider the evidence and to explain its view that there was only entitlement to the lower rate of the mobility component. In so doing it observed that the agoraphobia was clearly the appellant’s main problem and reminded itself that her GP had described the condition as being severe.
The proceedings before the Upper Tribunal
7. I granted the appellant permission to appeal to the Upper Tribunal because I thought it arguable that the F‑tT had erred in failing to consider other possible options before deciding the appeal on the papers and in failing to adequately explain why it was making an award, on renewal, which differed from the previous award (see R(M) 1/96).
8. Ms A Woods, who now acts on behalf of the Secretary of State in connection with this appeal to the Upper Tribunal, supports the appeal. She says it was clear that the appellant would have liked an opportunity to take part in the proceedings but that she felt unable to do so because of her mental health difficulties. Against that background she submits that the F‑tT did err in law by not considering an adjournment (presumably with a view to making some different arrangement for the appellant’s participation at a future hearing) and in failing to consider the content of the Senior President of Tribunals Practice Direction of 30/10/08 (Practice Direction (First‑tier And Upper Tribunals; Child Vulnerable Adult And Sensitive Witnesses)). She draws attention to the fact that the Practice Direction defines a “sensitive witness” as an adult witness where the quality of evidence given by the witness is likely to be diminished by reason of fear or distress on the part of the witness in connection with giving evidence in the case and points out that it requires a tribunal to consider how to facilitate the giving of any evidence by a sensitive witness. She says that the Practice Direction was simply not considered by the F‑tT.
9. In the above circumstances Ms Woods invites me to set aside the F‑tT’s decision and remit for rehearing by a differently constituted F‑tT with appropriate directions for its determination. She does not request an oral hearing before the Upper Tribunal.
10. It is evident that the appellant has, since the hearing before the F‑tT, been able to obtain professional representation. She is now represented by Mr S Hodgson of an organisation known as Hull Advice. He has, on her behalf, welcomed the respondent’s support for the appeal, said that he has no further comments to make other than that and has indicated he does not seek an oral hearing before the Upper Tribunal.
11. It is against the above background that I must now decide this appeal.
Discussion
12. It is right that the appellant had asked for her appeal to be decided on the papers. It is also true, though, that she had, in her letter accompanying her request, demonstrated that she would have liked to have participated in the hearing but felt, as a result of her mental health difficulties, she could not do so. It is also right to say that the F‑tT had evidence which it appeared to accept which indicated she suffered from severe agoraphobia and that it had a medical report from her GP suggesting, that if she had to attend appointments, this would be better achieved by way of a visit to her home.
13. In considering whether or not to proceed to determine the appeal on the papers, the F‑tT was required to consider the content of rules 2 and 27 of the Tribunal Procedure (First‑tier Tribunal) (SEC) Rules 2008. It certainly made reference to both of those rules but did not explain, in any real detail, the thought processes which led it to conclude that, in light of what is stated in those rules, proceeding was the right course of action. From what it said it appeared to base its decision to proceed largely if not exclusively on the basis that it had what it considered to be “sufficient evidence to make a reasoned decision”.
14. I accept it will sometimes be the case that a brief explanation as to why a tribunal is proceeding to decide an appeal on the papers will suffice. However, in my view, this was not such a case and more was required of the tribunal. Indeed, I consider that it made a number of errors in this regard. Firstly, it did not factor into its considerations the appellant’s wish to participate in the proceedings but for her illness. It did not take into account, in considering the reasonableness of its chosen course of action, the medical evidence that she suffered from severe agoraphobia or the GP’s view that, in relation to appointments, home visits would be better. It did not appear to give any consideration to alternative ways of approaching matters such as, for example, a domiciliary hearing or a hearing at a location familiar to the appellant (by which I mean a place other than an established hearing centre) or an adjournment to facilitate the appellant’s participation by telephone. Such was, on the face of it, possible given that the appellant had provided both a landline and a mobile telephone number when completing her appeal form. Further, the F‑tT did not consider the possibility (as Ms Woods very helpfully points out) that the appellant might fall within the definition of a “sensitive witness” such that it would be appropriate to consider possibilities such as evidence being given by telephone or by video link or other alternative means. Finally, and importantly in my view, it gave undue prominence to its view that it had sufficient evidence to make a reasoned decision. That sort of formulation is often offered by tribunals by way of an explanation for proceeding without a hearing but it does, certainly if it appears to have been the sole or prominent consideration, suggest that other factors of relevance as contained in rule 2, such as the duty to ensure, so far as practicable that the parties are able to participate fully in the proceedings may have been lost sight of. In any event, the presence of sufficient evidence to enable a reasoned decision to be made does not mean, of itself, that proceeding on the papers is fair and just. I conclude, therefore, that the F‑tT did err in law.
15. I do consider the error to be material. This is because it seems to me that the F‑tT’s ability to properly assess the strength of the appellant’s case was significantly compromised by its inability, as a result of the stance it took, to take oral evidence from her. In this context she had provided quite limited information, particularly with respect to her care needs, in her completed renewal claim pack. Nevertheless, there was medical evidence indicating she suffered from a range of different medical problems as outlined above. It may be that the F‑tT would have been able to glean much relevant material from her had it had an opportunity to ask her questions and receive her answers. In light of all of that it is, in my judgment, appropriate to set aside the F‑tT’s decision. I also consider it to be appropriate for me to remit to a new and differently constituted F‑tT. That is the course of action the respondent urges upon me and the appellant, through her representative, does not demur. In the circumstances I need not say anything more about the further basis upon which I granted permission.
16. There will, therefore, have to be a new hearing before a new and entirely differently constituted F‑tT. That hearing will take place in accordance with the directions I have set out above. If the appellant remains keen to participate at a hearing then I hope one of the above options canvassed in my directions or some other appropriate means of achieving this may be found. The appellant’s current representative may be able to assist in this regard by liaising with the tribunal.
17. The appeal, to the extent explained above and for the reasons set out above is allowed.
(Signed on the original)
M R Hemingway
Judge of the Upper Tribunal
Dated: 9 July 2015
EP v Secretary of State for Defence (WP) [2016] UKUT 0329 (AAC)
IN THE UPPER TRIBUNAL Case No. CAF/3472/2015
ADMINISTRATIVE APPEALS CHAMBER
Before E A L BANO
Decision: My decision is that the decision of the First-tier Tribunal involved the making of an error on a point of law. I set aside the tribunal’s decision and remit the case for hearing before a differently constituted tribunal.
REASONS FOR DECISION
1. This is an appeal brought with the permission of Judge Lane against the decision of a tribunal sitting on 25 September 2015 upholding an interim assessment of disablement of 6-14% in respect of post traumatic stress disorder, accepted as being due to service. In a submission dated 26 May 2016, the Secretary of State’s representative has accepted that the decision of the tribunal was wrong in law for the reason I discuss in paragraphs 9 and 10 below, but has submitted that the tribunal’s decision was nevertheless supported by the evidence for the reasons which the tribunal gave.
2. The claimant was an airframe fitter in the Royal Air Force between 9 July 1979 and 4 March 1993, when he was discharged as being below required medical standards. He served in the Falklands during the conflict in 1984 and claims to have been a witness to the immediate aftermath of an accident in which a person whom he had known at university was killed and horrifically mutilated after coming into contact with the blades of a Chinook helicopter. In 1987 and again in 1988 the claimant fortuitously escaped being a passenger on helicopters which crashed with fatal consequences.
3. The claimant was visited by Combat Stress Community Outreach team members on 29 February 2012, 17 February 2012 and 17 April 2012 and underwent an intensive treatment programme for PTSD between February and April 2013. On 15 February 2013 the claimant made a war pension claim in respect of post traumatic stress disorder, which was treated as effective from 15 January 2013. The Falklands incident was initially disputed, but was later accepted after the submission by the claimant of further evidence.
4. The claimant was referred to a regional consultant, who examined him on 16 January 2015. The claimant has encephalitis, Guillain Barre Syndrome and diabetes, which affect his mobility, but in relation to the claimant’s mental state the regional consultant reported as follows:
“His sleep is disturbed at least once a week. He becomes restless when dreaming, so much that he has fallen out of bed several times. His girlfriend will wake him, this startles him and he has grabbed her arm. He can go 3 nights without going to bed he stays up drinking tea and watching TV in order to not have nightmares.
His dreams are about the incidents with the Chinook helicopter and he will wake experiencing the smell of burnt flesh. When he wakes he is dazed and anxious. It takes him a while to relax and become familiar with his surroundings. He thinks he is back in a difficult situation.
He startles easily when there is an unexpected sound or a flash of light. He is over vigilant and perceives danger when there is none.
He usually avoids talking about his experiences although he has become better at this since being at Tyrwhitt House.
There were no psychotic features. There were some slight memory disturbances possibly due to the encephalitis.
The diagnosis is Post Traumatic Stress Disorder. (DSM(1V) 309.81)
The differential diagnosis could include depression and personality change related to encephalitis.
The symptoms are disturbed sleep and nightmares. He is anxious and over vigilant.
He has had PTSD since 1984. The same symptoms have been present for some time.
These symptoms have decreased with time and the psychotherapy he received at Tyrwhitt House.
His functioning at present is impaired more by his diabetes and difficult walking than his PTSD. However he still has frequent disturbed nights due to the PTSD. In the past his PTSD has contributed to his marriage breakdown and other relationship problems.”
5. On 10 February 2015 the claimant was assessed as being 6-14% disabled, on the basis of the regional consultant’s report as showing symptoms of disturbed sleep with nightmares, anxiety and hypervigilance. The claimant was notified of that decision on 18 March 2015 and appealed against it on 22 March 2015. A related entitlement appeal lapsed as a result of a more favourable decision, so that the only issue with which the tribunal was concerned was the assessment.
6. In their reasons for dismissing the appeal, the tribunal held:
“8. The Tribunal also has to have regard to other parts of the SPO Regulations. There is no table for the disabling condition that [the claimant] suffers from but, foe example, elsewhere it is said that the loss of an index finger should be assessed at 14% and the loss of a whole foot at 30%. It might be thought that the loss of a whole foot is a very serious matter-and, in terms, that the degree of disablement that [the claimant] was claiming. In crude terms, was the extent of [the claimant’s] mental health disability comparable to the loss of an index finger (which has all sorts of implications for pinch grip, fine motor movements etc) or the loss of a whole foot?
9. [The claimant] was claiming under the ‘SPO’ provisions. New regulations are in place for later claims, The Armed Forces and Reserve Forces (Compensation Scheme) Order 2011 (‘AFCS’). The ‘AFCS’ regulations set out an extensive set of tables covering a wide range of physical and mental disabilities. For example under ‘AFCS’ the loss of an index finger is, under Table 5 set at Item 32, level 12. Table 3 of the ‘AFCS’ says that a ‘Mental disorder, which has caused or is expected to cause functional limitation or restriction at 2 years, from which the claimant has made, or is expected to make, a substantial recovery within 5 years’ is also set at level 12. The regulations go on to refer to a much higher award of moderate loss of function as meaning an inability to engage in work appropriate to experience. So for ‘AFCS’ purposes there is a clear comparison between what, in mental health terms, a disability is ‘worth’ as compared with a mental disability.
10. Of course any Tribunal must be careful not to compare ‘apples and pears’ and must apply the correct regulations. However it is reasonable to say that Parliament intended that service personnel with similar injuries to be treated broadly the same in compensation terms under the different regulations. There is authority R (I) 2/06 and CI/2553/2001, CI 3758 and 3759/2003 for looking to other sources for guidance when assessing degrees of disability but clearly this must be done with caution.
The facts of this case
11. [The claimant] was born on 25.02.1961. He served in the RAF from 1977 to 1999 when he was invalided out as being below medical standards.
12. [The claimant] served in the Falklands in 1984 when a colleague was killed – giving rise to his current diagnosis.
13. [The claimant] claimed for the present matter on 15.01.13. The decision under appeal was made on 18.03.15. The appeal was made on 25.03.15.
14. The Tribunal adopts the findings of the regional consultant’s report dated 19.01.15 found at page 31‑32. They are detailed and comprehensive and need not be repeated here. Indeed, having tested the evidence, the Tribunal found that, if anything the report painted a bleaker picture than was actually the case. [The claimant’s] mental health is much better than he is prepared to admit to.
Reasons
15. When preferring the evidence of the regional consultant to that of [the claimant] the Tribunal had regard to the following factors.
16. [The claimant’s] initial oral evidence was that he could never recall having had a good night’s sleep; he watches television but it is only on as a distraction and he cannot concentrate to follow a television programme; he avoids meeting people; cannot handle a telephone conversation and cannot go shopping because it is too stressful. He said he avoids public places and finds public transport difficult and does not drive. While [the claimant] was giving this evidence he became tearful on occasions.
17. On the other hand he last had treatment from Combat Stress some 18 months ago and although he can always contact them should he need to, he has not.
18. [The claimant] became quite animated when asked about matters by the Tribunal and indeed became cheerful. [The claimant] spoke about enjoying a foreign holiday; he does a lot of voluntary work for the RAF Benevolent Association; he organises collections and makes telephone calls; he attends a regular fortnightly get together at his local village hall where guest speakers attend, which he described as ‘fantastic’. [The claimant] said that he liked to spend a lot of time learning and undertaking research. [The claimant] said he loved reading and could ‘proof read all day’.
19. [The claimant] applied to the Haberdashers’ Aske’s school in Elstree as an IT technician and had attended for interview. He had not been successful only because he lacked just one piece of knowledge about a particular software programme. However he had been put on the school’s list to invigilate exams. [The claimant] agreed that the school was a large one and was not on a public transport route. [The claimant] said that if Haberdashers’ rang today he would ‘go for it’.
20. Frankly, which was it? Either [the claimant] could not concentrate to follow a television programme and could not travel on public transport – or he could work and travel by public transport to one of the country’s most prestigious public schools. The Tribunal was quite sure that [the claimant] was not fantasising or being unduly optimistic about his prospects for work. He was being entirely realistic.
21. The Tribunal concluded that [the claimant], on his own evidence, could and did do much more than he at first claimed to do. If [the claimant] was not misleading the Tribunal then, at the very least, he had a distorted perception of his own obvious capabilities.
22. This is why the Tribunal preferred the findings of the regional consultant, contemporaneous as they were with the date of decision under appeal. If anything, as has been said, [the claimant], at the date of decision, was functioning at a better level. [The claimant] is able to work and in an intellectually demanding job.
23. On that basis, when taking into account the legal tests set out above, the Tribunal concluded that [the claimant] had been correctly assessed. If the Tribunal had to express a view it would say that he was in the low to mid range of 6‑14% assessment.
24. This is why the appeal was unsuccessful.”
7. Article 42(2) of the Service Pensions Order 2006 (‘SPO 2006’) requires a comparison to be made of the condition of the claimant and the condition of a normal person of the same age and sex. In CAF/3198/2012 Judge Levenson defined ‘disablement’ as an ‘impairment of proper functioning of mind or body (whether or not it currently involves any loss of capacity to do things), or a loss of capacity to do things.’ In CT v Secretary of State for Defence [2009] UKUT 167 (AAC) Judge Jacobs held (at [19]) that the tribunal must assess the claimant’s disablement, not the condition or injury. The war pensions scheme does not compensate for pain or suffering as such, and in the case of mental conditions, just as in the case of physical conditions, the decision maker is limited to considering the extent of the impairment of the claimant’s mental functions, and any consequent loss of the claimant’s ability to perform activities in the way in which they are normally carried out.
8. In carrying out that assessment, the tribunal can and in appropriate cases should have regard to the prescribed assessments in Part V of Schedule 1 to SPO 2006-see the decision of Judge Rowland in NH v Secretary of State for Defence (WP) and (AFCS) [2015] UKUT 35 (AAC), of Judge Jacobs in CT v Secretary of State for Defence at [23], and the decision of Judge Rowland in AM v Secretary of State for Defence [2013] UKUT 097 (AAC) at [23]; and no doubt the same principle applies to the prescribed gratuities for minor injuries in Part III of the Schedule. However, since the conditions listed in Part V of Schedule 1 do not include any mental health conditions; it may be that reference to the prescribed assessments will be of limited value when impaired mental function is in issue.
9. On the other hand, I regard the tribunal’s reference to the armed forces compensation scheme as misconceived. The tribunal relied on the similar tariff levels for the AFCS Table 5 Item 32 and Table 3 Item 4 descriptors as justifying an assessment of the claimant’s disablement under SPO 2006 at the same level as the prescribed assessment in Part III of Schedule 2 for the loss of an index finger. The tribunal did not make the findings of fact on the extent and likely duration of the loss of the claimant’s loss of function needed to decide which descriptor would have applied if the claim had been governed by AFCS 2011, but since the claimant’s PTSD had lasted for longer than five years it seems likely that the appropriate descriptor in his case would have been Table 3 Item 3, which is a Level 10 descriptor carrying an award of £27,000.00, or possibly even Table 3 Item 2, which is a Level 8 descriptor carrying an award of £60,000.00.
10. However, I doubt whether it is ever permissible to have regard to the Armed Forces Compensation Scheme tariff when making an assessment of disablement under the war pensions scheme. The war pensions scheme embodies a system of interim awards and review powers which enable the assessment of a claimant’s disablement to be changed upwards or downwards to reflect changes in the claimant’s condition throughout his or her lifetime, which is one of the reasons why the war pensions scheme was so expensive to administer. The armed forces compensation scheme was intended to mark a completely fresh start and, although the Scheme contains limited review powers, an AFCS award is generally speaking a ‘once and for all’ award’ which takes into account the expected future development of the claimant’s condition. Since the AFCS tariff levels are based on the Judicial Studies Board Guidelines for the Assessment of General Damages in Personal Injury Cases-see the MoD policy statement of 15 September 2003-the AFCS tariff levels also take into account pain and suffering and other matters which are not directly related to a claimant’s disablement. In company with the Secretary of State’s representative, I therefore agree with the Secretary of State’s representative that the tribunal erred in law in taking the AFCS 2011 tariff into account in a war pensions assessment case, but unlike the representative I am not confident that this error did not affect the outcome of the appeal. I would therefore allow the appeal for that reason alone.
11. The assessment of disablement in cases where a claimant’s mental health is impaired is likely to present greater conceptual and practical challenges than in cases involving physical injury alone. The former Veterans’ Agency guidance for Medical Advisers advised doctors to make an assessment of a claimant’s highest level of adaptive functioning for at least a few months in the previous year. It divided ‘adaptive functioning’ into three main areas:
Social relations, including all relations with people, with particular emphasis on family and friends, taking into account the breadth and quality of interpersonal relationships;
Occupational functioning as a worker, student or homemaker; taking into account the amount complexity and quality of work accomplished.
Use of leisure time, taking into account the range and depth of pleasure derived.
In the case of PTSD, the guidance advised that doctors should take account of the fact that PTSD is often amenable to treatment, as appears to have happened in this case.
12. It is of course for the tribunal, as the sole judges of fact, to decide how to analyse the evidence in any particular case, but the guidance summarised above may provide a useful checklist where disablement caused by mental illness is in issue. How does the illness affect the claimant’s relations with family and friends? How does it affect the claimant’s work as a wage earner or homemaker? How does it affect the claimant’s use and enjoyment of his her or her leisure time and hobbies? Those or similar questions may provide a framework for making findings of fact in accordance with the guidance of Judge Jacobs in CT v Secretary of State for Defence:
“The tribunal must make findings of fact on the claimant’s disablement that are sufficient to to apply [the article 42(2)(a) test]. It must identify the different types of disablement and make findings on their nature, severity and extent. If there is variation, it must make findings on frequency and range of the variation. If there is medication or other treatment, the tribunal must find what affect it has.”
13. The basis of the assessment of disablement which was under appeal in this case was the claimant’s disturbed sleep with nightmares, anxiety and hypervigilance. The claimant’s PTSD originally came under investigation because he was observed by hospital staff to call out in his sleep and to fall out of bed when he was being treated for another condition-see the regional consultant’s report, at page 31. Although the Community Outreach team considered that the claimant was possibly in denial with regard to his mental health problems (see page 21), the tribunal considered that the claimant was exaggerating his sleep problems and regarded the claimant’s evidence as in conflict with the regional consultant’s report (which the tribunal considered itself overstated the severity of the claimant’s symptoms). The regional consultant appears to have accepted the claimant’s account of his sleep problems without reservation and it is far from clear from the statement of reasons why the tribunal considered that the claimant’s evidence was in conflict with the regional consultant’s report. However, the tribunal made no explicit finding on the nature and extent of the claimant’s sleep problems. The claimant’s depression and hypervigilance, which were the other symptoms on which the assessment was based, might be expected to affect the claimant’s functioning in a number of ways, but are not mentioned in the statement of reasons. The tribunal may have come to the view that the claimant’s enthusiasm for work and for the other activities which he undertakes were not consistent with the level of disability which he claimed, but that came nowhere near to providing a sufficient factual basis for the assessment which the tribunal made.
14. Finally, I am concerned by the observation at paragraph 23 of the statement of reasons because it may have given the impression that the tribunal was reviewing the decision under appeal, rather than considering the matter afresh.
15. For those reasons, I allow the appeal and give the decision set out above.
E A L BANO
1 July 2016
EP v Secretary of State for Defence (AFCS) [2017] UKUT 129 (AAC), [2017] AACR 33
[2017] AACR 33
(EP v SSD)
1
[2017] AACR 33
(EP v Secretary of State for Defence (AFCS)
[2017] UKUT 129 (AAC))
Judge Knowles QC CAF/3551/2015
17 March 2017
Armed Forces Compensation Scheme – correct approach to definition of “downgraded” in
article 2(1) of the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011
Tribunal procedure and practice – evidence – need to consider everything
Following her enlistment in the Army in 2004 the appellant was found to have bilateral pes cavus in both feet and
dysplasia in her right hip. In 2008 she claimed compensation under the Armed Forces Compensation Scheme
(AFCS) which was rejected on the basis that both conditions were due to developmental abnormalities not service.
The appellant was found to be fit only for limited duties on a number of occasions and in September 2009 a Medical
Board examined the appellant and graded her P3 on a PULHHEEMS assessment by reason of bilateral foot pain and
right hip impingement and her Medical Employment Standard (MES) was downgraded to L3, which meant that she
was fit for limited duties but retained rank and pay. (PULHHEEMS is a functional assessment to determine an
individual’s fitness for service within the Army and their subsequent grading for duty.) The appellant’s downgrading
continued for the reminder of her service, except for a period in 2010 of less than two months when she was
temporally upgraded. In 2010 the appellant’s claim for compensation for the pain in her feet was rejected by a
First-tier Tribunal (F-tT), holding that her first claim concerned the same matter and any appeal was out of time. In
2013 the appellant left the service and in April 2014 she claimed compensation a third time for the pain in her hip.
That claim was rejected by the Secretary of State who concluded that the appellant did not qualify for compensation
under article 9 of the AFCS. The F-tT upheld that decision, holding that the worsening of the hip injury in 2012 had
not been the cause of the downgrading as required under article 9(3)(d) and had not been the cause of being
downgraded on all occasions. The appellant applied for permission to appeal on the grounds that she had a
permanent P3 PULHHEEMS grading from 8 September 2009 until her service ended on 17 December 2013.
Held, allowing the appeal, that:
1. the definition of “downgraded” focuses not simply on whether a person has been downgraded but more
specifically on the result of the downgrading, namely whether a person did, as a matter of fact, undertake a reduced
range of duties. Additionally downgrading could not be determined by reference to the duties which a person might
be called upon to undertake but which are not part of the ordinary duties of their role (paragraphs 43, and 48 to 49);
2. the F-tT’s approach was in error of law because it failed to consider the medical evidence in detail,
specifically (a) the restrictions on the appellant’s duties put in place following a PULHHEEMS assessment and (b)
the restrictions set out in her MES. The tribunal determining the appeal had none of the detailed records about the
various Medical Boards which considered the appellant’s fitness available to it and erred by failing to adjourn to
obtain them, as all of this material should have been scrutinised alongside the appellant’s own evidence about what
she thought her duties were (paragraphs 50 to 54);
3. the UT provided guidance as to how a tribunal should approach the question of whether the appellant was
continually downgraded within article 9(3)(c): JN v Secretary of State for Defence (AFCS) [2012] UKUT 479
(AAC) followed (paragraphs 58 to 59).
The judge set aside the decision of the F-tT and remitted the appeal to a differently constituted tribunal to be redecided in accordance with her directions.
DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
The DECISION of the Upper Tribunal is to allow the appeal by the appellant.
The decision of the First-tier Tribunal on 17 September 2015 under reference
AFCS/00325/2015 involved an error on a material point of law and is accordingly set aside.
[2017] AACR 33
(EP v SSD)
2
The appeal is remitted for re-hearing by a differently constituted First-tier Tribunal before
a differently constituted tribunal in accordance with the directions set out at the conclusion
of these Reasons.
This decision is given under section 12(2)(a) and 12(2)(b)(i) of the Tribunals, Courts and
Enforcement Act 2007.
REASONS
Introduction
1. This appeal considers the correct approach to the definition of “downgraded” in article
2(1) of the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011
(SI 2011/517) (“AFCS”) which should be taken by the First-tier Tribunal [“the tribunal”]. It also
addresses the information about that issue which should properly be before the tribunal at a
hearing.
2. I have concluded that the definition of “downgraded” focuses not simply on whether a
person has been downgraded but more specifically on the result of the downgrading, namely
whether a person did, as a matter of fact, undertake a reduced range of duties. Additionally
downgrading cannot be determined by reference to the duties which a person might be called
upon to undertake but which are not part of the ordinary duties of their role.
3. The tribunal’s approach was in error of law because it failed to consider the medical
evidence in detail, specifically (a) the restrictions on a person’s duties put in place following a
PULHHEEMS assessment and (b) the restrictions set out in a person’s MES (“Medical
Employment Standard”). The tribunal determining the appeal had none of the detailed records
about the various Medical Boards considering the appellant’s fitness available to it and erred by
failing to adjourn to obtain these. All of this material should have been scrutinised alongside the
appellant’s own evidence about what she thought her duties were.
4. I provide some guidance as to how the tribunal should approach the question of whether
the appellant was continually downgraded within article 9(3)(c) and rely on the analysis of
Upper Tribunal Judge Mesher in JN v Secretary of State for Defence (AFCS) [2012] UKUT 479
(AAC) which imports a degree of flexibility into that factual assessment.
5. I set the tribunal’s decision aside and remitted it for re-hearing by a freshly constituted
tribunal. I rejected the submission by the respondent Secretary of State that the tribunal’s error of
law was not material because the appellant could not meet the requirements of article 9 in
relation to her hip condition. I did so because that submission rested both on facts found by the
tribunal as the result of an erroneous process and on a view of the medical evidence uninformed
by the input of the specialist members of the tribunal
Background
6. The factual background pertinent to this appeal is summarised as follows. The appellant
before the Upper Tribunal was a former member of the King’s Troop and the respondent was the
Secretary of State for Defence. I will refer to the parties as “the appellant” and “the respondent”
respectively.
[2017] AACR 33
(EP v SSD)
3
7. The appellant enlisted in the Army on 9 December 2004 and joined the King’s Troop, a
ceremonial troop based in London. Her trade within the King’s Troop was that of a specialist
horsewoman. She left the Army on 17 December 2013 having taken voluntary redundancy.
8. The appellant has developmental abnormalities in both her feet (bilateral pes cavus) and
her right hip (dysplasia). She first reported pain in her feet during initial training and this was
found to be due to the abnormalities in her feet. At one stage it was suggested that her hip pain
might be linked to that in her feet but it was subsequently found to be due to a separate
condition.
9. There were a number of occasions between 2005 and 2013 when the appellant was found
to be fit for limited rather than full duties. The first occasion on which this was attributed to hip
pain was on 3 July 2008 when she was certified as unfit for work for 21 days. On 8 January 2009
she was found to be unfit due to hip pain for 11 days. On 7 November 2012 she was found to be
fit for limited duties for 21 days thereafter. She was also found to be unfit for duty for a day on
6 February 2013.
10. The appellant’s MES was the key indicator of her fitness for duty within the requirements
of her trade as a soldier. On 8 September 2009 a Medical Board examined the appellant and
graded her P3 on a PULHHEEMS assessment. The reason for that grade was bilateral foot pain
following a foot operation in June 2009 and right hip impingement following a right hip
arthroscopy in December 2008 (page 265). The Board said that she was restricted in carrying out
her general military duties and the duties of her trade. Specific restrictions were noted, namely
that she was unfit for combat field training, battlefield training, field exercises, all runs, and
heavy lifting. She was permitted to wear trainers. Her MES was grade L3 which meant that she
was fit for limited duties as specified by the Board. Her P3 and L3 grading was described as
permanent with a review after 12 months (reverse of page 153).
11. Subsequently the appellant remained downgraded at P3 and L3 (apparently permanently)
until 4 October 2012. The cause of this continued downgrading was recorded to be foot pain. On
4 October 2012 the appellant was upgraded to P2 and L1 in order to go on a leadership course
with the aim of being promoted. The appellant reported that she was told she would be
temporarily upgraded but would be downgraded if things did not work out on the leadership
course (page 130). There is some support for the appellant’s account in the medical records. On
15 October 2012 the medical records revealed the appellant to be suffering from hip pain which
had been aggravated by her leadership course (reverse of page 177). On 22 November 2012, on
account of hip pain, the appellant was regraded P3 and L3. She was found not to be fit for
mucking out, sweeping or guard duty and was unable to stand for more than 30 minutes without
a ten minute break. She remained downgraded for the rest of her time in service.
12. The appellant made two claims for compensation under the AFCS during her period of
service. The first was made in September 2008 and concerned both foot and hip pain. It was
rejected on 1 December 2008 on the grounds that the problems were due to underlying
developmental abnormalities and so were not caused by service.
13. The second claim was made in February 2010 and limited to the appellant’s problems
with her feet. This was rejected in 6 May 2010 because it related to the same problems which
had previously been the subject of the first claim. The tribunal determined that it had no
jurisdiction to hear the appellant’s appeal as this was, in substance, an appeal against the decision
dated 1 December 2008 and was therefore outside the absolute 12 month time limit provided for
[2017] AACR 33
(EP v SSD)
4
in rule 21(4) of the Tribunal Procedure (First-tier Tribunal) (War Pensions and Armed Forces
Compensation Chamber) Rules 2008 (SI 2008/2686).
14. The third and current claim was made in April 2014 and related to the appellant’s hip
pain only. The respondent considered whether the appellant qualified for compensation under
article 9 of the AFCS due to worsening of her hip condition but concluded that any worsening
was not due to service. The claim was rejected on 8 July 2014 and that decision was maintained
on reconsideration.
The tribunal decision
15. The hearing took place on 17 September 2015 and the appellant gave oral evidence. The
tribunal upheld the respondent’s conclusion that the worsening of the appellant’s hip injury was
not made worse by service.
16. The tribunal noted that both parties accepted that service did not cause the condition for
which the appellant had made a claim. That position was grounded in the medical evidence
which showed that her hip condition (dysplasia) was a developmental structural abnormality of
the appellant’s hip which had been present before service started. The appeal would only succeed
if the appellant could show that this condition was made worse by service.
17. The tribunal analysed article 9 of the AFCS and excluded articles 9(1)(a) and 9(1)(c) as
applying to the appellant’s circumstances. It found that article 9(1)(b) applied, as the appellant’s
hip condition was present before the appellant entered service but she was not aware that she had
such a condition and it was not revealed at the entry medical examination.
18. The tribunal referred to the definition of “downgraded” in article 2(1) and went on to
consider the appellant’s service record. That scrutiny encompassed both the duties undertaken by
a member of the King’s Troop and the periods during which the appellant had been downgraded
for various reasons (paragraphs 13–18). In summary the tribunal found that the appellant had
long periods of many months when she undertook full duties.
19. It concluded in paragraph 19 as follows:
“The worsening of the hip injury in 2012 was not the problem that was the cause of the
previous downgradings as is required to be shown by article 9(3)(d) because her hip
condition was not the cause of being downgraded on all occasions. She was mostly
downgraded because of treatment and operations to her feet. In 2008 she had an
arthroscopy of her right hip and some shaving done for the dysplasia. She was therefore
downgraded for the period of the operation and recovery but returned to full duties
thereafter. Most of the downgrading was because of the feet problem. In 2012 [the
appellant] sought advice regarding her right hip as it had starting aching again especially
when lying on it at night and after runs. She was still doing full duties as at 4 October
2012. After October 2012 she was downgraded and stayed downgraded until discharge
from the service. This was because of her hip. She was not therefore downgraded for her
hip condition within five years of starting service.”
20. Thus the tribunal decided that the appellant did not satisfy article 9 on a number of
grounds and it dismissed her appeal.
[2017] AACR 33
(EP v SSD)
5
The appeal to the Upper Tribunal
21. The appellant applied for permission to appeal on the grounds that she had a permanent
P3 PULHHEEMS grading from 8 September 2009 until her service ended on 17 December
2013. Thus the tribunal had been in error in deciding that she did not fulfil the definition of
downgraded throughout this period as, in addition to their ceremonial duties, King’s Troop men
and women were trained and required to be medically fully deployable as fighting soldiers and,
in order to be medically deployable as such, they required a P2 PULHHEEMS grading.
22. Permission to appeal was refused by the tribunal on the basis that the tribunal had been
correct to treat downgrading as a question of fact not determined by PULHHEEMS grading. I
granted permission to appeal on 5 February 2016, noting that, given the wording of article 2(1), a
PULHHEEMS grading could not be determinative of whether and for how long the appellant
was downgraded. However I sought submissions on the following matters:
a) the correct approach to the definition of “downgraded” in article 2(1) of the AFCS;
b) the relevance of the duties for which the appellant was found to be fit or unfit;
c) the adequacy of the tribunal’s findings of fact in relation to whether the appellant’s
downgrading was “continual”;
d) the adequacy of the tribunal’s findings of fact about whether the appellant’s hip
condition was the predominant cause of her downgrading; and
e) the appropriate disposal of the appeal.
23. I held an oral hearing of this appeal on 28 October 2016. At the hearing the appellant was
represented by Mr Glynn Tucker of the Royal British Legion and the respondent by Miss Galina
Ward of counsel. During the course of the hearing it became apparent that further submissions
were required to address (a) how the tribunal should approach its task when considering the
question of downgrading and (b) the adequacy of the information before the tribunal hearing this
appeal. Both parties made further written submissions on these issues following the hearing.
24. As a result of the additional submissions made, it has not been necessary for me to
undertake an individual analysis of each of the matters set out in [22] above. With one exception,
all are subsumed in what I have to say both about the tribunal’s approach to downgrading and
about the disposal of this appeal.
25. I am very grateful to both representatives for their very helpful written and oral
submissions.
The relevant legal framework
26. The AFCS came into force on 9 May 2011, replacing an earlier version of the Scheme.
Article 9 is entitled “Injury made worse by service” and reads as follows:
“(1) Subject to articles 11 and 12, benefit is payable to or in respect of former member of
the forces by reason of an injury made worse by service if the injury –
(a) was sustained before the member entered service and was recorded in the
report of the medical examination when the member entered service,
[2017] AACR 33
(EP v SSD)
6
(b) was sustained before the member entered service but without the member’s
knowledge and the injury was not found at that examination, or
(c) arose during service but was not caused by service
and in each case service on or after 6th April 2005 was the predominant cause of the
worsening of the injury.
(2) Benefit is only payable under paragraph (1) if the injury has been worsened by service
and remains worsened by service on –
(i) the day on which the member’s service ends; or
(ii) the date of claim if that date is later.
(3) Subject to paragraph (4), in the case of paragraph (1)(a) and (b), benefit is only
payable if –
(a) the member or former member was downgraded within the period of five
years starting on the day which the member entered service;
(b) the downgrading lasted for a period of at least 6 months (except where the
member was discharged on medical grounds within that period);
(c) the member or former member remains continually downgraded until service
ends; and
(d) the worsening was the predominant cause of the downgrading.
(4) In the case of paragraph (1)(a) or (1)(b), benefit is not payable if the injury is
worsened –
(a) within 6 months of the day service commenced; or
(b) 5 years or more after that day.
(5) In the case of paragraph (1)(c), benefit is only payable if the member –
(a) was downgraded within the period of 5 years starting on the day on which the
member sustained the injury and remains continually downgraded until service
ends; and
(b) the worsening was the predominant cause of the downgrading.”
27. “Downgraded” is defined in Article 2(1) as meaning “downgraded for medical reasons as
a result of which the person downgraded undertakes a reduced range of duties but retains rank
and pay”.
Other relevant matters
28. The MES is associated with the PULHHEEMS system of assessment used within the
Army to determine fitness for service. I have been provided with the PULHHEEMS
[2017] AACR 33
(EP v SSD)
7
Administrative Pamphlet 2010 (“the Pamphlet”) which gives details of the system. As paragraph
0104 of the Pamphlet makes plain, this system is designed to:
“a) Provide a functional assessment of the individual’s capacity for work;
b) Assist in expressing the physical and mental attributes appropriate to the individual’s
employment and fitness for deployment on operations within the Army;
c) Assist in assigning people to the employment for which they are most suited in light of
their physical, intellectual and emotional make-up allowing efficient use of manpower;
and
d) Provide a system which is administratively simple to apply.”
29. Medical classification under the PULHHEEMS system is considered and recorded under
the following categories:
Physical capacity (P)
Upper Limbs (U)
Locomotion (L)
Hearing (HH)
Eyesight (EE)
Mental Capacity (M) and
Stability (S).
30. Following a PULHHEEMS assessment, a service man or woman is graded as follows:
P2: medically fit for unrestricted service worldwide;
P3: medically fit for duty with minor employment limitations;
P4: medically fit for duty within the limitations of pregnancy;
P7: medically fit for duty with major employment limitations;
P8: medically unfit for service; and
P0: medically unfit for duty and under medical care.
Grades P5 and P6 are no longer in use. It should be noted that an individual’s P grade may be
either permanent or temporary, the latter being annotated by a T suffix.
31. The P3 grade is described as being used for an individual who has a medical condition
that prevents him/her from undertaking the full range of military duties. Such individuals are
able to perform useful duties in barracks but may not be able to carry out all aspects of their
employment and may require medication or medical follow-up. A P2 grade by contrast denotes
the absence of a medical condition or physical limitation that would prevent the soldier
undertaking all aspects of his/her military duties (paragraphs 0107–0108, the Pamphlet).
32. Associated with the PULHHEEMS assessment is the award of a Joint Medical
Employment Standard (“JMES”) grading in order to inform commanders and career managers
about the employability and deployability of service personnel. Paragraph 0123 of the Pamphlet
sets out the Medical Deployment Standard which consists of three categories as follows:
a) MFD: medically fully deployable, awarded when the P category is P2;
[2017] AACR 33
(EP v SSD)
8
b) MLD: medically limited deployable, awarded when P category is P3 or exceptionally
P7;
c) MND: medically not deployable, awarded when P category is P0, P4, P7 and P8.
33. The Medical Deployment Standard is complemented by the MES which relates an
individual’s PULHHEEMS profile to the requirements of their branch/trade in the air, land and
maritime environments. The appellant was a specialist equestrian soldier and as such fell to be
categorised in the Land (“L”) environment. This has five grades as follows:
L1: fit for unrestricted duty; equating to P2;
L2: fit for unrestricted duties but with a medical risk marker, equating to P2;
L3: fit for limited duties but with some restriction subject to medical risk assessment,
equating to P3 or P7;
L4: fit for specific limited duties within branch/trade, equating to P4 or P7;
L5: unfit for service in the land environment, equating to P0 or P8.
34. The allocation of a PULHHEEMS assessment is a medical responsibility and a change of
MES will usually be determined by a Medical Board (see paragraph 0201 of the Pamphlet).
35. In this case the appellant was, at all times during her service in the Army, graded as either
P2 or P3. A grading of P3 is not an automatic bar to deployment but will depend on an
assessment of the individual’s circumstances at the time of deployment (see paragraphs 0511–
0512 of the Pamphlet).
Summary of the parties’ positions
36. The appellant submitted that the primary duty of all soldiers was to be deployable for
world-wide posting at any time and relied on paragraph 9.260 of the Queen’s Regulations for the
Army 1975 which states that:
“The assignment of soldiers is based on the principle that a soldier must be available for
world-wide posting at any time, this being one of the conditions of service he accepted on
enlistment. If circumstances are such that a soldier cannot comply with this condition he
will normally be terminated or transferred to the Reserve no matter how good a soldier he
may be in other respects.”
She submitted that the tribunal erred by failing to take account the primary duty to be available
for world-wide posting at any time.
37. She also criticised the adequacy of the tribunal’s fact finding in circumstances where the
tribunal did not have available to it a complete set of records relating to the appellant’s
PULHHEEMS grading. She maintained that she had been continually downgraded from
8 September 2009 to the end of service.
38. Finally she maintained that, in circumstances where the respondent accepted that the
tribunal had adopted an incorrect approach to the question of downgrading, the correct disposal
should be to remit the appeal to the tribunal for re-hearing based on the correct approach to that
issue.
[2017] AACR 33
(EP v SSD)
9
39. Initially, the respondent maintained that the tribunal had adopted the correct approach to
the issue of downgrading. The appellant did not meet that definition by reason of her hip injury
save during very limited periods of time. There was no material difference between the terms
“continual” and “continuous” for these purposes. The tribunal made no finding that the
worsening of the appellant’s hip condition was the predominant cause of her downgrading
because it determined she was not entitled to benefit under article 9 in any event.
40. At the hearing I queried whether the tribunal’s assessment was sufficiently holistic
because it was based on the appellant’s oral evidence and had not involved a detailed
examination of her medical records, the reasons for her grading of P3 or what duties she had
been medically assessed as being fit to undertake. In his final written submissions, the Secretary
of State accepted that the tribunal had failed to take into account all of the material relevant to
the question of downgrading.
41. However he maintained that the failure to do so was not a material error of law because
the appellant was not downgraded predominantly because of her hip condition until November
2012 and thus could not satisfy the entitlement condition in article 9(3)(a) (downgrading within
five years of the date she entered service).
The tribunal’s approach to downgrading
42. This engages two distinct matters: first, the definition of “downgraded” in Article 2(1);
and second, the scope of the tribunal’s enquiry in order to establish whether a person has actually
been downgraded so as to meet the entitlement criteria in article 9.
(a) Definition
43. The wording of article 2(1) – “downgraded for medical reasons as a result of which the
person downgraded undertakes a reduced range of duties but retains rank and pay” – focuses
not simply on whether a person has been downgraded but more specifically on the result of the
downgrading: does the person as a matter of fact undertake a reduced range of duties? Further,
the definition refers to the duties that the person undertakes and not the duties for which the
person is fit.
44. The appellant submitted that downgrading should be determined by reference to the
duties which a person might theoretically be called upon to carry out such as being deployed
world-wide at any time. It was in that context she relied on paragraph 9.260 of the Queen’s
Regulations 1975. The respondent, in contrast, submitted that, if downgrading were to be
determined by reference to duties a person might theoretically be called upon to do but which
were not part of the ordinary duties of their role, then the definition would be deprived of
practical meaning.
45. In the appellant’s later submissions Mr Tucker refined his argument in the following
manner. He accepted the Secretary of State’s submissions that downgrading must consider the
duties a person undertakes during the period of downgrading compared to the duties ordinarily
expected of a person of the same rank in the same troop. However, he submitted that this must
also include the duty of all serving soldiers to maintain the required levels of fitness to allow
deployment at any time.
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46. I do not find reliance on the Queen’s Regulations persuasive. Those Regulations “lay
down the policy and procedure to be observed in the command and administration of the Army”
and “provide commanding officers with direction on the command and administration of their
units” (paragraph 1, Queen’s Regulations 1975). These Regulations, which I have perused, are
largely concerned with organisational matters and matters of discipline. Moreover, the
Regulations do not address procedures for medical grading and downgrading. The paragraph
relied upon by Mr Tucker is located within Part 5: Assignment of Soldiers which concerns
itself with where soldiers may be posted either at home or abroad. In that context, I doubt
whether paragraph 9.260 can be relied upon to support Mr Tucker’s argument about
downgrading. I am of the opinion that it means simply that a soldier cannot as a matter of
discipline make himself/herself unavailable for a particular posting – whether a person will be
allocated to a particular posting will depend on a person’s MES.
47. Mr Tucker’s refined submission – that the duty of serving soldiers to maintain required
levels of fitness to allow for deployment is a matter to which the tribunal should have had regard
in this case – is one which carries some weight. The tribunal focussed on the ceremonial duties
carried out by the appellant and not on other ordinary duties, one of which might well have been
for the appellant to maintain basic fitness or even combat fitness. In this context I note that the
September 2009 Medical Board Notice included restrictions applying to the appellant’s basic
fitness and combat fitness. Unfortunately the tribunal could not examine this aspect of the
appellant’s functioning and related duties properly since it lacked the material generated by the
various Medical Boards which would have explained if and how the appellant’s duties were
restricted.
48. Though the medical records shed some light on this issue, I consider it possible that the
tribunal may have been misled by the phrase which regularly appeared in the appellant’s records
– “Fit for full duties within current MES”. In fact the appellant’s MES was restricted following
the Medical Board in September 2009 in the manner described in [10] above but the tribunal did
not have available to it the MES generated by that Board and indeed subsequent Boards in order
that it could make well-reasoned findings about what duties the appellant undertook at any given
time whilst downgraded.
49. Taking into account the matters set out in [41] above, I find that this approach to the
definition of downgrading is also consistent with the structure of PULHHEEMS. A person
graded P3 may be deployed but this would depend on an assessment at the time of the proposed
deployment. I agree with the respondent that the potential result of that hypothetical future
assessment cannot determine whether a person is or is not downgraded for the purposes of the
AFCS at any given time. It is furthermore important that a tribunal considers the broad range of
duties – such as maintaining basic fitness – which a person has to carry out whilst downgraded
rather than just those relevant to a person’s trade within service. A clear, well-reasoned
determination about what those duties actually were is a vital aspect of the tribunal’s approach
to the issue of downgrading.
(b) Scope of the tribunal’s enquiry into downgrading
50. This enquiry has at its heart a factual assessment of the range of duties undertaken by a
person during the period of downgrading. These duties are then to be compared to the duties
ordinarily expected of a person of the same rank in the same troop. I find that the term
“downgrading” self-evidently means that a person’s PULHHEEMS grade and indeed their MES
will be of key importance to that exercise.
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51. In this case however, the tribunal’s enquiry was flawed for a number of reasons as both
parties now accept. Its enquiry was based largely on the appellant’s oral evidence and some
scrutiny of the medical records. Though the tribunal made reference to the PULHHEEMS
gradings, what was not available to it was medical evidence relating to each and every occasion
that the appellant had been downgraded – the details of all the PULHHEEMS assessments prior
to November 2012 were missing as were the Medical Board records. Those records would have
contained details of the restrictions on a person’s ability to perform general military duties and
their ability to perform the duties specific to their trade. I note that the form for notifying the
outcome of a Medical Board to a person’s unit made specific reference to limitations for Physical
Training as well as for functional activities, suggesting that the maintenance of physical fitness is
or may be an important aspect of a person’s duties.
52. Examination of medical records containing details of occasions when the appellant had
been downgraded; the reasons for that downgrading; and the duties from which a person was
either restricted or which a person was assessed as medically fit to undertake were all matters
which, I find, were relevant to the tribunal’s enquiry into downgrading. If the duties for which a
person had been found to be unfit at the time of the assessment of their MES formed part of their
ordinary duties, that person would be downgraded within article 2 of the AFCS if they continued
in the same employment with retained rank and pay but subject to the new MES.
53. Evidence relating to earlier periods of downgrading was not submitted to the tribunal by
the respondent as it was asserted by him that the reason for downgrading prior to November
2012 was the appellant’s foot condition and not her hip. It was, however, the case that the
appellant remained graded at P3 following the surgery to relieve her foot pain and, in fact but not
known to the tribunal because of the medical records missing from the bundle, the appellant was
downgraded in 2009 in part because of hip pain. Despite this, the tribunal found that the
appellant had not been downgraded for the purposes of the AFCS based on her oral evidence that
she returned to full duties prior to November 2012. Mr Tucker submitted that, in these
circumstances, the tribunal should have adjourned for the medical evidence about downgrading
prior to November 2012 to be placed before it. I agree particularly as that material was necessary
to establish the extent of the duties which the appellant was required to undertake within her
MES.
54. In conclusion I find that the tribunal’s enquiry into the facts surrounding the appellant’s
downgrading during service was materially inadequate for the reasons I have explained. I find it
really surprising that it should have undertaken that enquiry in the absence of medical evidence
(a) detailing the PULHHEEMS assessments and (b) providing the details of the restrictions
placed upon the appellant’s duties by the various Medical Boards. In particular its conclusion
that, despite her P3 grade, the appellant had not been downgraded prior to November 2012
required reasoning based on the contents of the medical records to which I have referred. Its
failure to adjourn to obtain those records was baffling.
The meaning of “continual” in article 9(3)(c) and 9(5)(a)
55. The appellant contended that I should hold that “continual” did not mean literally nonstop or uninterrupted, applying [28] of MC v Secretary of State for Defence (WP) [2009] UKUT
173 (AAC); [2010] AACR 20. This was a case which considered the meaning of the word
“continual” contained in Article 8(5) of the Naval, Military and Air Forces Etc. (Disablement
and Death) Service Pensions Order 2006 (SI 2006/606). With the agreement of the parties in that
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case, Upper Tribunal Judge Levenson held that, for the purpose of article 8 which concerned
itself with entitlement to constant attendance allowance, “constant” and “continual” did not
mean literally non-stop or uninterrupted.
56. In contrast the respondent argued that “continual” should be given its ordinary dictionary
meaning which was “without interruption”. At the hearing Ms Ward argued that the meaning of
“continual” in MC did not apply because (a) that meaning was specific to a care situation and
(b) its meaning was heavily influenced by the meaning given to it in the entitlement criteria for
disability living allowance and attendance allowance, namely something more like “frequently
recurring”. It will be apparent from what follows that I accept Ms Ward’s submission that MC
was situation specific and thus not widely applicable.
57. In my grant of permission I posed the question of whether there was any difference
between “continual” as opposed to “continuous”, the latter word being the one used by the
tribunal when stating that the appellant had not been downgraded “continuously” from the point
at which she was first found unfit to undertake full duties in December 2006 (paragraph 17,
statement of reasons). The respondent provided two extracts from the Oxford Dictionary in
relation to each word which identified that both words can mean “without interruption”.
However “continuous” was more prominent in that respect than “continual” which typically
meant “happening frequently with intervals between” (page 310).
58. I must not read “continual” as it appears in article 9(3)(c) in isolation. That provision –
“the member or former member remains continually downgraded until service ends” – appears to
describe, a continuing state of affairs, hence the use of the word “remains”. However, as an aid
to interpretation, I adopt the analysis of Upper Tribunal Judge Mesher contained in [38] of JN v
Secretary of State for Defence (AFCS) [2012] UKUT 479 (AAC) where he considered the
meaning of article 8(5) of the AFCS 2005. I note that article 8(5) in that Scheme is mirrored by
article 9(5) in the 2011 AFCS. Both articles require downgrading within the period of five years
starting on the day on which the member sustained the injury and (my emphasis) remaining
continually downgraded until service ends. There is thus a direct comparison with the wording
in article 9(3)(c) in the AFCS 2011 applicable to the appellant.
59. Applying the analysis of Upper Tribunal Judge Mesher, there seems no reason why the
test of remaining continually downgraded should be satisfied only when the level of
downgrading remains constant either in the sense of being unchanging or becoming more severe.
It could lead to perverse or arbitrary results if a person were to be excluded from entitlement just
because there were subsequent periods when the downgrading was less severe providing that
some degree of downgrading remains continually in force until the end of service. What Upper
Tribunal Judge Mesher’s analysis helpfully does is to incorporate a degree of flexibility into the
enquiry required by the tribunal. Whether downgrading was continual or not is a matter of fact
for the tribunal – what in fact were the duties undertaken by the person and were they reduced in
comparison to those undertaken by a person of the same rank in the same troop? The tribunal
will be astute to examine what lies beneath fluctuations in grading; to grapple with exactly what
duties the person actually performed; and to guard against the potentially perverse outcome
outlined above.
The impact on the tribunal’s decision
60. What impact does the tribunal’s erroneous approach to downgrading have on its decision
in this appeal? The respondent submitted that the error was not material because, first, the
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evidence showed that the downgrading had not been continual and, second, the appellant was not
downgraded predominantly because of her hip condition until November 2012. In those
circumstances the appeal should be dismissed. The appellant took issue with both of these
submissions and invited me to remit the matter to the tribunal for a complete re-hearing.
61. In response to my direction at the conclusion of the oral hearing, the respondent produced
documents detailing some but not all of the various PULHHEEMS gradings applied to the
appellant during her service career and also the outcome of various Medical Boards. The
assessment leading to a P3 grading dated 28 September 2011 cannot be found within the
appellant’s service records. This material was not before the tribunal.
62. Both the matters relied upon by the respondent are classic matters of fact ordinarily
requiring a determination by the tribunal following an assessment of all the evidence in this
appeal. In circumstances where the tribunal adopted an erroneous approach to downgrading
based on incomplete oral and documentary evidence, I cannot see how I am in a position to rely
on any of the facts found by the tribunal or indeed, without the benefit of sitting with a medical
and a service member, to maintain the tribunal’s decision and dismiss this appeal.
63. The respondent submitted that the appellant had not been continually downgraded
because the evidence showed she had been assessed as P2 on 4 October 2012 until 22 November
2012. The appellant pointed out that the P2 grade had been given in order to allow the appellant
to attempt to pass a combat fitness test and was thus nothing more than a temporary grading. The
attempt failed within two weeks of 4 October 2012 (page 144). The status of the P2 grade within
the context of the appellant’s lengthy history of being downgraded and its effect on whether the
appellant remained continually downgraded within the meaning of article 2(1) are matters of fact
for the tribunal to determine, taking into account all of the evidence before it and in the light of
my analysis of the meaning of the words “continually downgraded” in article 9(3)(b). I am in no
position sitting alone to come to a conclusion on these issues of fact.
64. Likewise I find myself in difficulty in relying on the tribunal’s finding that the appellant
was not downgraded because of her hip condition but predominantly because of her foot
condition. Those were findings it came to following a flawed approach to the issue of
downgrading as I have already said. There is material in the medical records which indicates
ongoing hip problems following the Medical Board in 2009 (see for example, the entry at
28 June 2011 which makes reference to deep hip joint discomfort and that of 29 September 2011
which gives a diagnosis of hip dysfunction with associated biomechanical involvement and
associated weakness). It seems to me that the predominant cause of downgrading remains a
matter for a tribunal re-hearing this matter to determine.
65. For all these reasons, I have come to the clear conclusion that the tribunal’s erroneous
approach to the issue of downgrading was a material error of law. It follows that I allow this
appeal, set the tribunal’s decision aside and remit the appeal for a complete re-hearing by a
freshly constituted tribunal.
Conclusion
66. For the reasons explained above, I allow the appellant’s appeal against the tribunal’s
decision and I set that decision aside. The appeal is remitted to a freshly constituted tribunal for a
complete re-hearing.
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DIRECTIONS
1. The re-hearing should be an oral hearing and should be arranged within a
reasonable time scale.
2. The new First-tier Tribunal should not involve the tribunal judge and members who
considered the appeal on 17 September 2015.
3. If the appellant has any further written evidence, particularly any evidence relevant
to her medical condition whilst in service, to put before the tribunal, it should be sent to the
tribunal office at Fox Court, 14 Grays Inn Road, London, WC1X 8HN within one month of
the issue of this direction.
4. The new tribunal must deal with any procedural questions, as may arise, on their
merits.
5. The tribunal must consider all aspects of the case, both fact and law, entirely afresh
and is not bound in any way by the decision of the previous tribunal.
6. These directions may be supplemented by further directions by a Tribunal Judge in
the War Pensions and Armed Forces Compensation Chamber of the First-tier Tribunal.
EW v Secretary of State for Defence (AFCS) [2011] UKUT 186 (AAC), [2012] AACR 3
CAF/316/2010
DECISION OF THE UPPER TRIBUNAL
ADMINISTRATIVE APPEALS CHAMBER
The claimant's appeal to the Upper Tribunal is dismissed. The decision of the London First-tier Tribunal dated 22 October 2009 involved no material error on a point of law and is not to be set aside under section 12(1) of the Tribunals, Courts and Enforcement Act 2007.
REASONS FOR DECISION
1. This case raises an important point of principle about the meaning and effect of article 10 of the Armed Forces and Reserve Forces (Compensation Scheme) Order 2005, as amended ("the AFCS Order"). An oral hearing was held at the claimant's request on 15 March 2011. There had been some delay in the arranging of the date, because of the non-availability in different periods of people concerned. The claimant was as it turned out not able to attend the hearing, but was represented by Alastair Shaw of counsel, of Hogan Lovells International LLP, acting pro bono through an arrangement with the Royal British Legion (RBL). The Secretary of State for Defence was represented by David Blundell of counsel, instructed by the Treasury Solicitor. I am grateful to both representatives for their submissions at the hearing. I gave the opportunity for further written submissions within a short timescale on the question of how the case should be disposed of on one possible outcome of the legal arguments about causation. The representatives appear to have kept in substance to that timescale, but an unexplained combination of unfortunate glitches has meant that a copy of Mr Blundell’s reply (originally dated 5 April 2011) to Mr Shaw’s submissions dated 28 March 2011 only reached me today. In the end, on the view I have taken as to the legal outcome, I do not have to consider the difficult questions about the scope and nature of an appeal to the First-tier Tribunal against a decision like that in the present case that were the subject of those submissions.
The factual background
2. The facts are deceptively simple and were clearly and carefully set out by the tribunal in its decision. It noted that the claimant had served in the Army since 27 May 1981 and was at the time of its hearing a Warrant Officer 2 (SQMS). In July 2005 he was transferred to be part of a small British element at a multinational HQ Rapid Reaction Corps in Lille in France. The decision continued:
"[The claimant] was provided with accommodation where he was required to live near the Citadel in Lille where the HQ was based. Only French military personnel were permitted to park at the Citadel and therefore the only feasible way to travel from his accommodation was on foot. We find that the Citadel in Lille was his regular place of work.
At about 0716 on 17 January 2006 [the claimant] was the victim of a hit and run incident when on a pedestrian crossing whilst walking to work. He was in uniform which he had been authorised to wear by his Commanding Officer when walking to and from work. He was also wearing a high visibility Bergen. The weather was wet and dark and he considered the street lighting poor. The incident was investigated by a French Gendarme Major, who was the Provost Marshall at the HQ, but his enquiries were not conclusive as neither the driver nor the vehicle were ever traced.
We agree with and make as findings the replies as set out by Brigadier Hewitt on the reverse of page 15 of the response.
Initially [the claimant's] injuries were considered to be fairly minor (severe bruising to right arm and leg) but paralysis has occurred in his right arm for which he has had surgical interventions. He told us, and we accept, that he now has only 22% strength in the right arm.
He was downgraded to P7 at the date of the decision (7 April 2008). Neither the [Service Personnel and Veterans Agency] nor we have expressed any views about the appropriate descriptor. The hearing has been solely concerned with whether he is precluded from receiving benefit because of the provisions of Article 10.
We find that he was on duty at the time of the accident. He was wearing uniform and was on an authorised journey at the time of the accident. He told us, and we accept, that if an incident had happened on the way to work he would be expected to attend and assist provided he was in uniform. He asked his Colonel whether he was on duty and was told that the Colonel would regard himself as on duty when travelling to work in uniform. Understandably, [the claimant] considers that his position is no different."
3. The response of Brigadier Hewitt, the claimant's commanding officer at the time, was in reply to a letter dated 19 January 2008 asking specific questions. It included that the claimant was walking between his place of residence (a service hiring) and his normal place of duty at the time of the accident, that he was not travelling to a separate duty station and was not on detached duty, that he had not been called out for an emergency and was on an authorised duty in that he was expected each day to make his way from his service-provided residence to his service place of duty, the location of the accident being on the most direct and logical route.
4. The claim under the AFCS for injury to arm and leg was received on 27 December 2007. The decision that the claimant was not entitled to an award was notified in a letter dated 7 April 2008. The reason given was that, because he was travelling from his normal place of residence to his normal place of work, he was not covered by article 10 inclusions. That decision and the reason were maintained on review after the claimant had lodged an appeal.
The relevant legislation
5. From the outset article 7 of the AFCS Order has provided:
"7.--(1) Benefit is payable in accordance with this Order to or in respect of a member or former member of the forces by reason of an injury which is caused (wholly or partly) by service where the cause of the injury occurred on or after 6th April 2005.
(2) Where injury is not wholly caused by service, benefit is only payable if service is the predominant cause of the injury."
In article 2(1) "service" is defined as:
"service as a member of the forces, except as provided in article 10;"
6. As amended with effect from 26 July 2006, article 10, headed "Injury and death - inclusions", provides:
"10.--(1) Benefit is payable in accordance with the Order to or in respect of a person by reason of an injury sustained or worsened or death occurring, while participating in--
(a) [approved sporting activities];
(b) [approved activities for maintaining physical standards];
(c) [approved adventure courses and expeditions].
(2) [approval by the Secretary of State].
(3) [exclusion of social events and free time from paragraph (1)].
(4) Benefit is payable in accordance with this Order to or in respect of a person by reason of an injury sustained, or worsened, or a death occurring--
(a) while travelling from his home or his place of work to the place where an activity referred to in paragraph (1) is to happen or while travelling back again;
(b) where one of the circumstances specified in paragraph (5) applies and where service is the predominant cause of the injury, or the worsening of the injury or death.
(5) The circumstances referred to in paragraph (4)(b) are where the member of the forces--
(a) is travelling from his home or his regular place of work to a place of work which is not his regular place of work or while travelling back again except where the travel is during a period of leave;
(b) is travelling from a place of work which is not his regular place of work to another place of work which is not his regular place of work;
(c) is changing from one regular place of work to another and is travelling from his home or what was his regular place of work to a place of work outside the United Kingdom which is to become his regular place of work or is travelling from what was his regular place of work outside the United Kingdom to his home or to a place of work which is to become his regular place of work; or
(d) is required to reside in accommodation provided by the Ministry of Defence for families of members of the forces at a distance of over 50 miles from his regular place of work and is travelling by a reasonably direct route from that accommodation to that place of work or while travelling back again.
(6) Benefit is payable in accordance with this Order to or in respect of a person by reason of an injury sustained, or worsened, or a death occurring--
(a) as a result of acts of terrorism or other warlike activities in each case directed towards him as a member of the forces as such; or
(b) while called out to and travelling to an emergency but only where service is the predominant case of the injury, the worsening of the injury, or death.
(7) This article does not apply unless the cause of the injury, the worsening of the injury, or the cause of the death, occurred on or after 6th April 2005.
(8) [definition for paragraph (1)(b)]."
7. Some parts of article 11, headed "Injury and death - exclusions" have also been referred to, in particular paragraph (b)(iv):
"11. No benefit is payable under this Order to or in respect of a person by reason of--
...
(b) an illness or any associated condition caused by an illness which is--
...
(iv) an exogenous infection except where the infection is a zoonosis, or is endemic to a tropical or a subtropical region and the person infected has been exposed to the infection in the course of his service or where, in a temperate region, there has been an outbreak of the infection in service accommodation or a workplace,"
The tribunal's decision
8. The argument for the claimant made to the tribunal by his representative from the RBL appears to have been first that service provided the setting or circumstances in which the injury to the claimant occurred, so that it was a contributory factor and that a factor of service was a predominant cause of the injury within article 7(2). It was argued second that article 10 was irrelevant as it provided only a list of inclusions and could not remove an entitlement established under article 7(2).
9. The tribunal dismissed the claimant's appeal. It concluded that none of the four circumstances set out in article 10(5) applied and that:
"We disagree with [the RBL representative]. In a claim involving travelling it is not sufficient to show merely that service was the predominant cause of the injury. It is also necessary to satisfy the test in Article 10(5).
We find that it is sufficient for the lay decision maker to reject the claim on the basis that it does not fall within Article 10(5). Our responsibility as a Tribunal is to decide whether the decision was rightly made on that ground. We find that it was.
Since the lay decision maker did not consider whether service was the predominant cause of the injury and we have concluded that it was not necessary to do so in order to make a decision in this claim we make no findings about this."
The appeal to the Upper Tribunal
10. The claimant now appeals against the tribunal's decision with the permission of the President of the War Pensions and Armed Forces Compensation Chamber of the First-tier Tribunal.
Is article 10 a complete and exhaustive code for travelling cases?
11. In his written skeleton argument Mr Shaw for the claimant submitted that article 10 should not be the starting point in travelling cases, as had been submitted for the Secretary of State in his written reply. He pointed first to the manifold circumstances in which the obvious carrying out of the duties of service would involve travel, such as in a tank or lorry or some other service vehicle or aircraft on an exercise or in combat or simply moving on foot. It could not possibly be suggested that article 10(4) and (5) prevented an injury sustained in such circumstances from qualifying for compensation under the AFCS. He submitted that those provisions only had an (inclusive) application when a person was not already working, but otherwise if the person was already on duty they had no application and it was the test of causation under article 7 that was decisive. I come back to that test below and to Mr Shaw's submission that the tribunal's finding of fact that the claimant was on duty when knocked down was unassailable in law and decisive that the injury was predominantly caused by service.
12. At the oral hearing Mr Shaw expanded his submissions to include some points of construction of the AFCS Order. He stressed that the heading of article 10 referred merely to inclusions and that there were no provisions stating expressly that it was to be exhaustive or to constitute a complete code. In view of the difficulties in identifying the scope of article 10 on travelling, if the Secretary of State was right the interaction with article 7 would not be compatible with the principle of simplicity put forward, for example, in Section 2 of the March 2001 Joint Compensation Review Consultation Document. And if the Secretary of State was correct, there would, he said, be a large and unfair gap in the scheme through the exclusion of compensation for service members injured as a result of their work as such.
13. The case to the contrary was set out as follows in Mr Blundell's skeleton argument for the Secretary of State, after he had relied on Elias LJ having said in paragraph 8 of Secretary of State for Defence v Duncan and McWilliams [2009] EWCA Civ 1043, [2010] AACR 5 that article 10 "defines certain activities which will be deemed to have occurred while the person is in service". The skeleton continued:
"20. Article 10 thus deems certain activities to have occurred during service. The `deeming' effect of article 10(5) is necessary because of the test of service being the `predominant cause of injury' in article 10(4) which must then be applied. Article 10(5) thus deems the activities in question to have occurred in service; article 10(4) applies a test of predominant causation by service to them. Without the deeming the reference to `service' in subparagraph (4) would make no sense.
21. This reading of article 10 is further supported by the terms of the definition of `service' in article 2(1), which defines `service' to mean `service as a member of the forces, except as provided in article 10' (emphasis added). Thus the activities in article 10 must fall outside the scope of article 7 because they are only brought within the definition of `service' by the effect of article 10. Were it not for article 10, such activities would not amount to `service' at all and so could not fall within article 7.
...
24. Thus the effect of article 10 is to bring within the scope of eligibility for payment of benefit activities which would not otherwise qualify under [article] 7. This means that article 10 has to be the starting point, not article 7. That is the usual effect of a deeming provision. In the case of the AFCS, the statutory deeming will occur only where the qualifications in the relevant part of article 10 (here, subparagraph (5)) have been met. It is for this reason that `service' is defined in article 2(1) as meaning `service as a member of the forces, except as provided in article 10'.
25. Where those requirements are met, there is no need to look back to article 7. Article 10 contains the complete code for determining the payment of benefit in these circumstances. That this is so is evident from a structural comparison of articles 7 and 10. ...
...
27. The structure of the provisions is identical. They both begin by stating that benefit shall be payable in accordance with the AFCS [Order] in particular cases. This is followed by a specification of the cases which the provision covers. Article 7 covers injuries caused by service; article 10(4) and (5) cover certain limited types of travel activity. There is then a requirement in both provisions that where the injury is not wholly caused by service or travel respectively, that service or travel must have been the predominant cause.
28. Accordingly, article 10 contains a complete code for determining whether the injury in question creates an entitlement to benefit. It mirrors the structure of article 7 but extends its scope to include activities which would not normally be considered to be part of service. It extends the scope of article 7 in that it includes certain activities which, on a reading of article 7 alone, would not do so. ...
29. Precisely because it mirrors the structure of article 7, including the test of predominant cause, there is no need to look back to article 7 from article 10. Article 10(5) contains the same test of causation as article 7 and so referring back to article 7 is not necessary. The word `inclusions' in the heading to article 10 thus refers to `inclusions' in the scheme of entitlement to benefit within the AFCS as a whole. It does not specifically refer to inclusion within article 7. The scheme of entitlement to benefit in the AFCS has at its core the notion that only injury or death caused predominantly by service creates an entitlement to benefit; without the inclusion in that scheme created by article 10, sporting activities and travel between home and the place of work or different places of work would not create any entitlement."
14. Mr Blundell maintained that position in essence at the oral hearing in submitting that the tribunal had not gone wrong in law. He accepted that article 10 did not use the classic language of deeming, by providing that a person was to be treated as in service in certain circumstances, but submitted that the combination of the exception to the definition of service in article 2(1) and the heading to article 10 had, in the context of the AFCS Order as a whole, to have that effect. Mr Blundell did, however, qualify or clarify what was being put forward in paragraph 27 of the skeleton argument. He submitted that, despite the deeming effect just identified, paragraph (4)(b) of article 10 (like paragraphs (1) on sporting activities etc and (6) on terrorism etc and emergencies) required the asking of the question of whether service not as expanded by article 10 was the predominant cause of the injury. The question then arose of how article 10 could provide any practical assistance to anyone if, even though the circumstances fell within an identified category, the claimant was subject to exactly the same test as under article 7. Mr Blundell's answer was that the question had to be asked, even if it would result in a very narrow scope of application for article 10, but that the question of whether service had an effect on the claimant's location at the time in question could be relevant.
15. Mr Blundell defined the scope of application of article 10(4)(b) and (5) as covering travel to and from a place of work, so that such travel that did not fall within one of the categories in paragraph (5) could not attract payment of benefit for an injury sustained while doing so. He accepted that there would be grey areas and difficulties, for instance, in defining when a claimant had reached a place of work, so that the ordinary test in article 7 took over. By defining the scope in that way, the sorts of travel mentioned by Mr Shaw while on exercise or in combat would not be caught by the preclusive effect of article 10, but again Mr Blundell recognised that there would be difficulties in identifying when a person was travelling as part of his or work rather than to or from it. I pressed him on a number of examples, some less well-chosen than others. One instance was if the claimant had had to have some heavy equipment or books at his apartment in Lille and had been carrying them to the Citadelle when at exactly the same location and time he had strained a muscle or tripped because of the weight of the load and injured himself in falling. Mr Blundell's reaction was that that would fall outside the normal travel to work situation (possibly by treating the apartment as a temporary place of work), so that article 10 would not apply at all and benefit could potentially be awarded. A further example was more difficult. If the claimant had been attacked by someone with an irrational hostility to military uniforms or British uniforms (or, I now add, he had gone to the aid of a British hit and run victim who had appealed to him for help on seeing his uniform and been injured by another car), would entitlement to benefit be excluded just because he was on the way to work at the time? Mr Blundell again thought not, but did I think struggle to explain why, apart from suggesting the possibility of the application of article 10(6)(a) on terrorism etc if the uniform had been targeted.
16. I do not accept the Secretary of State's submissions on this issue. The interaction of articles 7 and 10 is far from easy to work out. In my view the key lies in the essential test of entitlement being in terms of causation by service, with service being the predominant cause. The test is not whether the claimant was to be regarded as in service (whatever that might mean) at the time of the incident causing the injury or as on or off duty. Then that must be related to the particular drafting technique adopted in article 10.
17. The starting point is the definition of service in article 2(1). It is important that that definition is in general terms, not limited to service on or after 6 April 2005. The condition as to the date comes in in the separate provision in articles 7, 8 and 9 in relation to the cause of the injury, worsening or death. I come back below to why there therefore needs to be an additional provision in article 10(7). Then there is a potential expansion or contraction of the ordinary meaning of service (depending on what article 10 provides). Given the heading "inclusions" to article 10, it must prima facie operate as an expansion of the ordinary meaning. I do not object to the use of the word "deeming" to describe the practical effect of that, but stress that too much weight must not be given to the particular words used by Elias LJ in paragraph 8 of Duncan and McWilliams when doing no more than setting out a general introductory description of the AFCS structure. But it is important to note that a deeming provision or one with similar effect can and often does operate not only where the circumstances would definitely not have fallen within some condition, but also where it is thought desirable to provide some more hard-edged criteria for identifying satisfaction of a general condition. The mere use of positive deeming language ("shall be treated as X if A and B", rather than "shall be treated as X if and only if A and B") does not mean that the general condition cannot be satisfied if a case falls outside the deeming. For a recent example in the social security context see Secretary of State for Work and Pensions v Deane [2010] EWCA Civ 699, [2010] AACR 42, [2011] PTSR 289.
18. I can also clear away here Mr Blundell's second thoughts at the oral hearing about the effect of the condition in article 10(4)(b) that service is the predominant cause of the injury, worsening or death (paragraph 14 above). In my judgment those second thoughts cannot be right and his first thoughts as expressed in the written skeleton argument were correct. That follows from the context of the expansion of the article 2(1) definition of "service" and the general effect of article 10. If the meaning of service has been expanded, then when there is a reference to service it must be to that extended meaning, ie including the circumstances specified in article 10. If that were not the case, article 10 would not add anything to articles 7, 8 and 9, because the test of predominant causation by service in its unexpanded meaning would remain. It could not bring into qualification for benefit cases that would not already qualify under those articles. Article 10 would then only serve the function, if Mr Blundell is right in general, of excluding from qualification for benefit cases within its general field of application (eg travel to and from work). Such a result could not possibly have been intended to follow from a provision headed "inclusions".
19. Therefore, in the ordinary use of language one would not expect article 10 either to carve out an area from the ordinary meaning of "service" or to prevent entitlement arising in certain circumstances even though article 7, 8 or 9 would otherwise apply unless there were clear words to produce that result. Articles 7, 8 and 9 are not expressly made subject to article 10. That perhaps does not take one much further forward, as they are not expressly made subject to article 11 (exclusions) either, although that must by implication be the result. One must then consider the words of article 10 to see if they indicate that they are to have an exhaustive effect within their field of application.
20. The first difficulty is to determine just what the field of application is of article 10(4) and (5) in particular. It requires some work of interpretation and implication even to confine it to situations of travel to and from work. Then Mr Blundell's struggles when examples were put to him to differentiate such cases from others where entitlement should be allowed on the ordinary article 7 test demonstrate that that is by no means an easily identifiable category. Not all of his solutions would work. For instance, if the claimant's apartment in Lille were treated as a not regular place of work or even as a regular place of work in particular circumstances, the journey from there to the Citadelle would not have fallen within any of the categories within article 10(5). It would then require giving a highly sophisticated and complicated meaning to travel to and from work as the general field of application of article 10(4) and (5) to find a way to exclude the carrying of equipment or books example mentioned in paragraph 15 above or, say, a diversion on orders from the claimant's normal morning route to meet a visiting officer at the Lille Eurostar/TGV station. In my view it would be highly undesirable, if article 10 were to have the preclusive effect given to it by the First-tier Tribunal, for the field of application of that effect to be so loosely identified. One need only refer to the dreadful convolutions into which the courts have got in trying to lay down principles within the social security industrial injuries scheme for identifying when a claimant is in the course of employment in travelling cases, leading to differences in outcome in particular cases that seem to have no rational basis. It would therefore need the clearest of words to produce that result when it would be so much simpler if article 7 just retained a residual role if the claimant was not able to get within one of the article 10(5) categories.
21. The second difficulty is that in my judgment the provisions in article 10 said by Mr Blundell to demonstrate that it operates in a preclusive way as well as an inclusive way do not have that effect. I agree that the article does operate as a complete code, but do not agree that that has the consequences put forward for the Secretary of State. That operation is a necessary consequence of the drafting technique adopted and therefore does not carry any further implications. As already noted, paragraphs (1), (4) and (6) of article 10 do not use the classic language of deeming circumstances to fall within article 7, 8 or 9, but simply declare that benefit is payable in the circumstances prescribed. Those paragraphs contain no condition about the date of occurrence of the cause of the injury. Thus, the specific provision in article 10(7) is necessary to restrict the inclusive effect of article 10 to injuries etc caused on or after 6 April 2005. Similarly, paragraphs (1), (4) and (6) need to contain an express condition restricting the inclusive effect to cases where service (in its expanded meaning) is the predominant cause, because there would not otherwise be anything requiring that link. Article 10 in that sense provides a complete code for the cases which it brings within the scope of benefit, because it is has to. But in those circumstances I can see no implication that it was intended to provide a complete code for any wider category of cases, such as “travelling” or “travelling to or from work”, in the sense of excluding such cases from the scope of benefit unless the conditions of paragraph (1), (4) or (6) were met.
22. The words of article 10 accordingly fall a long way short of a clear indication that it was intended to be anything more than an inclusive provision for the cases prescribed, leaving cases falling outside that prescription to be decided according to the ordinary tests in article 7, 8 or 9. It may therefore be right in practice to make article 10 the starting point in a travelling case, because if one of its tests is satisfied the article may provide a straightforward answer that the claimant qualifies under the AFCS, subject to the further determination that an injury within the Tables in Schedule 4 or within the terms of article 20 has been sustained. But article 10 can be no more than a starting point in a case where one of its tests is not satisfied. In that circumstance, it is necessary to go on and consider the relevant ordinary test. Accordingly, the tribunal of 22 October 2009 erred in law in dismissing the claimant’s appeal for the reason it did.
23. I add a few words here about the decision of Mr Commissioner Jacobs, as he then was, in CAF/2150/2007 and CAF/2151/2007, set aside by consent in the Court of Appeal on 3 October 2008, when the decisions of the Pensions Appeal Tribunals were restored. There was no discussion of that at the oral hearing of 15 March 2011, although it had featured in written submissions. The decision of the Court of Appeal, having been given by consent, was binding on the parties to the case before it, but the reasons attached to the consent order cannot be regarded as carrying any authoritative weight in any other cases (Commissioner’s decision R(FC) 1/97). And in any event, as has been pointed out by Mr Blundell, the reason why the Secretary of State consented to the allowance of the widows’ appeals was doubt about the meaning of article 10(5)(a) as it was originally enacted (under which it was considered arguable that travel to and from work outside the United Kingdom was covered). By the time of the claim in the present case, but after the date of the incident, the AFCS Order had been amended by the substitution of new forms of article 10(4) and (5) which did not contain the previous ambiguity. No challenge has been made to the application of the general principle that the legislation to be applied should be that in force at the date of the claim under consideration. I agree with the parties that, since Mr Commissioner Jacobs’ decision was set aside by the Court of Appeal, it cannot be regarded as carrying any authoritative weight in any other cases either. However, the decision is still publicly available and his reasoning can be considered in other cases on its merits by way of comparison or instruction. I am comforted by the fact that Mr Commissioner Jacobs reached the same conclusion on the inclusive and not exhaustive nature of article 10, although our processes of reasoning differ slightly at some points.
Could the claimant have succeeded under article 7?
24. It must then be asked whether, if the tribunal had not made the error of law about article 10, it would nevertheless have been compelled to dismiss the claimant’s appeal. Mr Shaw of course submitted that, on the contrary, once the tribunal had made the unassailable finding of fact that the claimant had been on duty when he was knocked down, it had to follow that service was the predominant cause of the resulting injuries. I have some doubt whether the evidence before the tribunal did in fact support that finding (a report of what the claimant’s Colonel considered the case does not seem to me to have anything near decisive weight) and exactly what the tribunal thought was entailed by the finding. But I have decided that I do not need to pursue those matters in detail because I tend to agree with Mr Blundell for the Secretary of State that the focus under the AFCS Order must be on the test in terms of causation by service, rather than on the concept of being on or off duty, which does not expressly appear in the Order.
25. There is some assistance to be gained from considering the time-honoured formula of “personal injury by accident arising out of and in the course of employment”, dating from the Workmen’s Compensation Act 1897 and still current in the Social Security Contributions and Benefits Act 1992 in relation to industrial injuries disablement benefit. To be entitled to disablement benefit the claimant must not merely be in the course of employment at the time of the accident, but the accident must also arise from employment. The test under the AFCS Order of service being the predominant cause of injury corresponds to the “arising out of employment” part of that formula (although creating a considerably higher hurdle), but there is no equivalent of “in the course of employment”. That leaves a great deal of work to be done by the test of causation, and without the assistance of the many presumptions and rules within the industrial injuries legislation about when an accident is to be treated as arising out of employment. There is also the very significant condition that it is not enough, as it for disablement benefit, that service is a cause, of a substantial non-trivial kind; it must be the predominant cause. In the industrial injuries context, as mentioned above, there have been great problems raised by travel, some of which have been dealt with by specific legislative rules. For the moment, I merely note the acceptance in this context (as in others, such as income tax law and the rules as to vicarious liability for the acts of employees) of a fundamental distinction between travel to and from work and travel as part of work.
26. In my judgment, in the circumstances of the present case, the claimant could not be regarded as doing his job as member of the armed forces while walking from his apartment in Lille to the Citadelle. He was doing something which was necessary for him to carry out that job, but he was not yet doing it. I do not have to decide at what point before entering his office or work-building that would change. I suspect that it might be said to be at the point at which he entered an area where he was entitled to be only as a member of the armed forces and not as a member of the general public. However, the precise identification may not always matter because not everything that happens to a person while doing their service job can be accepted as caused by service, let alone as having service as the predominant cause. And some things that happen while the person is not doing their service job can be accepted as being caused by service. It does not affect my conclusions so far that the claimant was under a duty, in a sense, to get to the Citadelle to do his job (as are all employees) or regarded himself as (or even was in fact) on duty when doing so or when wearing his uniform or whether he was subject to military discipline. He was still not doing his job.
27. The injury on the journey to work being a manifestation of a risk run by the general public using the streets of Lille, that injury could not properly be regarded as caused by his service, let alone being predominantly caused by service. Nor was the nature of that risk in any way restricted to Lille as compared with any other place, including within the United Kingdom, where he might have been posted and had to live in non-service accommodation. I think that his RBL representative at the hearing on 28 October 2009 had it right when she said that service provided the setting for the incident. Where she went wrong was in the submission that that meant that service was the predominant cause. It is of course true that the claimant would not have been where he was on the pedestrian crossing in Lille if he had not been serving in the armed forces at the time. However, that factor cannot be differentiated from the great morass of other background factors in the absence of which he would not have been where he was at the particular time. Such factors cannot as a matter of common sense and common experience be regarded as a cause of the claimant’s injury. They merely form part of the background setting.
28. There may of course in other circumstances be factors that mean that service is a cause, and potentially the predominant cause, of an injury suffered while a person is travelling to and from work. The examples mentioned above of a person being targeted because of their uniform or of carrying service equipment that is linked to the occurrence of the incident might qualify. It would be wrong in the present decision to seek to set out any more defined principles by which such circumstances can be identified. Each case must be considered on its merits. I do add this word of caution, linked to the hypothetical example of the claimant here having been ordered to divert from his normal morning route to meet a visiting officer at the Lille Eurostar/TGV station and, say, being knocked down on the same pedestrian crossing at the same time on the way to the Citadelle. In such circumstances, service might be regarded as differentiated from the overall background setting so as to be at least a cause, but the incident would still have been a manifestation of a risk run by the general public using the streets of Lille. There would then be a serious question to be answered whether service could be determined to be the predominant cause. I come back to the identification of predominant cause in paragraph 31 below when discussing some of the authorities relied on by Mr Shaw.
29. I have reached those conclusions by a general consideration of the terms of the AFCS Order and of the meaning ordinarily to be given to the words “cause” and “predominant cause” in the light of the submissions made. They are in my judgment supported by the authorities cited by Mr Shaw in support of the claimant’s case, including one decided under a predecessor to the Naval, Military and Air Forces Etc (Disablement and Death) Service Pensions Order 2006. Article 6(2) and (3) of the AFCS Order provides that its rules are to be construed without reference to any other scheme applicable to the armed forces, except where expressly mentioned. I agree with Mr Blundell that this means that whatever might be the proper approach or the actual approach in practice under the 2006 Service Pensions Order and its predecessors to incidents occurring while a service member is travelling to or from work cannot be relevant to the proper approach under the AFCS Order. However, I do not agree with him that this prevents reference to cases before the nominated judge or the Pensions Appeal Commissioners or the Upper Tribunal under that legislation for assistance on the general meaning of concepts such as causation.
30. One case mentioned by Mr Shaw was Minister of Pensions v Chennell [1947] 1 KB 250, a well-known decision of Denning J on appeal from a Pensions Appeal Tribunal (PAT). The case arose under the Personal Injuries (Emergency Provisions) Act 1939 and its scheme for making payments to civilians for war injuries. The scheme therefore does not fall within the scope of article 6(2) of the AFCS Order because it was not, I think, applicable to the armed forces. A boy had picked up an unexploded bomb dropped by an enemy aircraft two days before. When he tampered with it in the road it exploded, injuring the claimant, a girl who happened also to be in the road at the time. The PAT decided that that was a “war injury”, ie a physical injury caused by the discharge of the bomb by the enemy. Denning J dismissed the Minister’s appeal. He began by noting that the best approach was to start with the injury and to ask what were the causes of it, rather than to start with the discharge and ask what its consequences were. The discharge did not need to be the cause of the injury in the sense of being the sole or effective and predominant cause; it only had to be a cause. At page 254 he made the important observation that it had to be recognised that causes are different from the circumstances in or on which they operate, the line between the two depending on the facts of each case. He then gave four illustrations. The first was where the discharge etc was the immediate or precipitating cause of the injury, when the test was met even though there was some other antecedent or precipitating cause, as where a bomb fell on someone who had disobeyed instructions to take shelter or where an accident in service caused a hernia only because of an inherent weakness. The second and third were where some other cause intervened between the discharge and injury. That would not prevent the discharge remaining a cause, even if it involved a negligent or wrongful act by a third party, unless the discharge were so remote as not to be a cause at all. Denning J gave examples of the test being satisfied. The fourth category was where “the intervening or extraneous event is so powerful a cause that the dropping of the bomb ceases to a cause at all but is only part of the circumstances in or on which the cause operates”, where there would not be a war injury. The examples at page 256 included the following:
“[W]hen, whilst a soldier is on service, his wife goes off with another man and in consequence the soldier is reduced to a chronic anxiety state. The disease is then attributable not to war service but to the wife’s personality and conduct: (W v Minister of Pensions [1946] 2 All ER 501). It may be that if the soldier had not been separated from his wife by war service, she would not have been unfaithful and he would not have suffered, but that does not mean that the war service is a `cause’ of the disease, and that is so, even though on an average wives are more likely to be unfaithful when they are separated from their husbands than when they are not. Persons may be more likely to be involved in an accident in a London street than in a country road, but the cause of an injury in any particular case is not the visit to London but the negligence of someone or other.”
31. What Mr Shaw sought to draw from Chennell in the claimant’s favour was I think in the end limited to the submission that it would be simplistic to regard the causative effect of service in putting the claimant on the pedestrian crossing in Lille as overtaken by an intervening event of such power (ie the negligent and irresponsible actions of the French driver) as to put the case into Denning J’s fourth category. I do not agree. The line between service being merely part of the circumstances or being a cause of injury can be a very fine one and ultimately a matter of impression, as is shown by the many other decisions of the nominated judges on the Service Pensions Order and its predecessors that I shall not cite individually. The statement of the outcome by the authority responsible for the decision may therefore appear simplistic on the surface, but that in no way diminishes the validity of the general principle. Under the AFCS Order the difficulty is likely to be transferred to the line between service being merely one of several causes of the injury and it being the predominant cause. Where I do agree with Mr Shaw is in the proposition that in identifying the predominant cause it would be wrong to look only at the immediate or precipitating cause. As he pointed out, to do that in a rigid way would exclude from the scope of compensation what might be thought to be the archetype of a service injury – being shot by the enemy on active service. That deliberate and targeted act of the enemy cannot possibly in this context be regarded as the predominant cause of the resulting injury so as to exclude service as the predominant cause. Thus a somewhat more sophisticated approach must be taken, though its working out must await future cases where the point is material to the outcome.
32. Marshall v Minister of Pensions [1948] 1 KB 106 was for present purposes merely an application of the same principles as in Chennell to a claim for a war service injury. The difference between attribution and aggravation discussed there is not relevant here. Mr Shaw referred in particular to this passage of Denning J’s judgment at page 109:
“The task of the Minister and of the tribunal is to ascertain what are the causes of the arising of the disease [in that case a hernia], not to assess their relative potency. If one of the causes is war service the disease is attributable to war service, even though there may be other causes and, it may be, more powerful causes, operating, and to which it is also attributable.”
However, that in my judgment merely points up one of the definitive differences between the Service Pensions Order and the AFCS Order. Under the latter it is precisely the task to assess the relative potency of causes in order to decide whether service is the predominant cause.
33. Mr Shaw relied perhaps most strongly on the decision of the House of Lords in Environment Agency v Empress Car Co (Abertillery) Ltd [1999] 2 AC 22 and in particular on the speech of Lord Hoffmann. The question before the House of Lords was whether the company had been rightly convicted of causing polluting matter (diesel oil) to enter controlled waters contrary to section 85(1) of the Water Resources Act 1991 when an unlocked outlet tap to its diesel tank was opened by a person unknown. It is difficult to summarise Lord Hoffmann’s characteristically penetrating speech. I do not find it necessary to refer to all the passages cited by Mr Shaw, as they do not in my view help him. The most important general statement was at page 31E:
“[O]ne cannot give a common sense answer to a question of causation for the purpose of attributing responsibility under some rule without knowing the purpose or scope of the rule. Does the rule impose a duty which requires one to guard against, or makes one responsible for, the deliberate acts of third persons? If so, it will be correct to say, when loss is caused by the act of such a third person, that it was caused by the breach of duty.”
As a matter of statutory construction it was then held that section 85(1) imposed a strict liability, covering liability for certain deliberate acts of third parties and natural events. It was in that context that Lord Hoffmann made the statement particularly relied on by Mr Shaw, as summarised at page 36B:
“If the defendant did something which produced a situation in which polluting matter could escape but a necessary condition of the actual escape which happened was also the act of a third party or a natural event, the justices should consider whether that act or event should be regarded as a normal fact of life or something extraordinary. If it was in the general run of things a matter of ordinary occurrence, it will not negative the causal effect of the defendant’s acts, even if it was not foreseeable that it would happen to that particular defendant or take that particular form. If it can be regarded as something extraordinary, it will be open to the justices to hold that the defendant did not cause the pollution.”
34. What Mr Shaw said was that the Ministry of Defence, with a responsibility for the claimant’s welfare and wellbeing, had done something that produced a situation in which he could have been injured on busy city roads in the dark and the wet by posting him to Lille in circumstances in which he had no service accommodation and no service transport to and from work. What happened was then a normal fact of life and a long way from something extraordinary.
35. That of course is in a sense undeniable, but it does not show in the context of the AFCS Order that service was a cause of the claimant’s injury. That context is not the same as that being considered by Lord Hoffmann. Although the AFCS operates on a strict liability basis in the sense that entitlement to compensation does not depend on the injury having been intended or foreseen by the Ministry of Defence, neither does it depend on any breach of duty. There is simply a public law entitlement to compensation when the terms of the ASCS Order are met. The injury having been predominantly caused by service is one of those tests. One is not then looking at a question of causation for the purpose of attributing responsibility under some rule, but looking at the meaning of causation as part of the rule as to entitlement to and responsibility for the payment of compensation. There is not the special factor that led Lord Hoffmann to his particular analysis. As he put it at page 32C in relation to the facts of National Rivers Authority v Yorkshire Water Services Ltd [1995] 1 AC 444 (third party discharged solvent into a sewer which then passed through the defendant’s sewage works and into a river), those facts were:
“a striking example of a case in which, in the context of a rule which did not apply strict liability, it would have been said that the defendant’s operation of the sewage plant did not cause the pollution but merely provided the occasion for pollution to be caused by the third party who discharged the [solvent].”
36. Perhaps another way of expressing much the same point is that Mr Shaw’s approach was, in the terms used by Denning J in Chennell, to start with the claimant’s service and ask what its consequences were, rather than, as is preferable, to start with the claimant’s injury and ask what the causes of it were and what was the predominant cause.
37. Accordingly, I conclude that, in the different context of the AFCS Order, the Empress Car case provides no indication that the fact that hit and run accidents on pedestrian crossings in poor visibility can be said to be in general a normal and familiar fact of life, not something abnormal and extraordinary, makes service a cause of the claimant’s injury. Even if it did have that effect, it would not have helped the claimant to show that service was the predominant cause. Lord Hoffmann, just like Denning J in the cases discussed above, was concerned only with whether a particular person or factor counted as one amongst possibly many causes of injury or damage. He was not concerned with the identification of the predominant cause.
Conclusion
38. For those reasons, the only possible result in law on the (essentially undisputed) facts found by the tribunal of 28 October 2009 was that service was not the predominant cause of the claimant’s injury so as to satisfy the condition of entitlement in article 7 of the AFCS Order. Whether the analysis is that the tribunal’s error of law in the interpretation of article 10 was
therefore not material to the result or that it does not justify the exercise of the discretion under section 12(1) of the Tribunals, Courts and Enforcement Act 2007 to set aside its decision involving an error of law, the claimant’s appeal must be dismissed.
(Signed on original): J Mesher
Judge of the Upper Tribunal
Date: 12 May 2011
FI v Secretary of State for Work and Pensions (CSM) [2020] UKUT 173 (AAC)
FI v (1) SSWP (2) MC (CSM) [2020] UKUT 173 (AAC)
CCS/94/2019
CCS/95/2019
1
IN THE UPPER TRIBUNAL Appeal No. CCS/94/2019
(ADMINISTRATIVE APPEALS CHAMBER) CCS/95/2019
BEFORE JUDGE WEST
DECISION
The decision of the First-tier Tribunal dated 17 September 2018 under file reference SC228/13/00552 & SC228/13/02650 involves an error on a point of law. The appeal against that decision is allowed.
The matter is remitted to a differently constituted tribunal for a complete rehearing.
The new tribunal must consider and make relevant findings as to the correctness of the departure decision dated 27 March 2013 and the effective date of any such departure.
The new tribunal is not bound in any way by the decision of the previous Tribunal.
These directions may be supplemented as appropriate by later directions by a Tribunal Judge of the First-tier Tribunal (Social Entitlement Chamber).
This determination is made under section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007.
REASONS
Introduction
1. The application by the Second Respondent for permission to appeal against the decision of the First-tier Tribunal sitting at Newcastle-Upon-Tyne on 17 September 2018 under file references SC228/13/00952 & SC228/13/02650 has already been granted by District Tribunal Judge Jacques on 9 November 2018.
FI v (1) SSWP (2) MC (CSM) [2020] UKUT 173 (AAC)
CCS/94/2019
CCS/95/2019
2
2. An appeal to the Upper Tribunal lies only on “any point of law arising from a decision” (section 11(1) of the Tribunals, Courts and Enforcement Act 2007), not on the facts of the case. Permission to appeal will be granted if there is a realistic prospect that the First-tier Tribunal’s decision was erroneous in law or if there is some other good reason to do so (Lord Woolf MR in Smith v. Cosworth Casting Processes Ltd [1997] 1 WLR 1538). In the exercise of its discretion the First-tier Tribunal may take into account whether any arguable error of law was material to the Tribunal’s decision.
3. The appeal against the departure decision of 27 March 2013 appeal was originally withdrawn by the Appellant with effect from 24 November 2015 and was then reinstated at the suit of the Second Respondent on 10 February 2017.
4. At the hearing on 17 September 2018 the Appellant indicated that she still wanted to withdraw the appeal. The Tribunal acceded to that request. The Second Respondent objected and sought permission to appeal.
5. In granting permission to appeal to the Second Respondent, the Tribunal considered that the following issues arose and needed to be clarified:
(1) where an appeal is reinstated, as here, who becomes the Appellant? The Tribunal considered that it could not convert the Second Respondent into the Appellant.
(2) where an appeal is reinstated, as here, can the appeal be withdrawn again? The Tribunal considered that there was nothing in the legislation to prevent that.
(3) if the appeal is correctly withdrawn, is there a right of appeal to the Upper Tribunal available to the other parties?
6. For the purposes of this decision, I have adopted the current nomenclature of the proceedings in which the Appellant is the Parent With Care (“PWC”) and the Second Respondent is the Non-Resident Parent (“NRP”). That does not imply, and should not be taken to imply, any prejudgment concerning the first issue in the appeal, with which I deal below.
FI v (1) SSWP (2) MC (CSM) [2020] UKUT 173 (AAC)
CCS/94/2019
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7. On 22 March 2019 I made directions for further sequential submissions by each of the parties to the appeal in turn, beginning with the First Respondent (the Secretary of State), then the Appellant and finally the Second Respondent. There was some delay in issuing the directions and they were not issued to the parties until 15 May 2019.
8. The Secretary of State replied on 5 June 2019 and supported the appeal (pages 1205 to 1208).
9. On 6 July 2019 the clerk to the Upper Tribunal sent those submissions to the other parties and asked for the submission of the Second Respondent. That letter should in fact have referred to the submission of the Appellant, in accordance with my earlier directions.
10. On 9 July 2019 the Appellant asked for clarification of the order in which the further submissions should in fact be made and asked for an extension of time for her own submission on the basis that her employment required overseas travel on a continual basis, for example being out of the country (in varying blocks) for about 16 days per month and 14 days at home. Due to the volume of the papers and the fear of losing them, she could not take the papers abroad with her. She was also representing herself since she could not afford a representative.
11. By way of clarification, I confirmed that it was indeed the Appellant who was to make the next submission.
12. In the interests of justice I also was satisfied that it was proper to extend the Appellant’s time for making her submission and made a direction to that effect on 17 July 2019.
13. She duly made her submissions on 7 October 2019 (pages 1225 to 1231A with attachments to page 1248). The Second Respondent replied with his submissions on 26 November 2019 (pages 1250 to 1252). The matter has now been referred back to me for decision.
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14. None of the parties sought an oral hearing and I am satisfied that it is not necessary to hold one in order to determine the matter. The Appellant indicated that she would attend an oral hearing if required to do so, but I do not consider that that is necessary in order to resolve the appeal before me.
The History of the Matter
15. The case has been a long-running and intractable one. The twins whose support is at the heart of the matter are now 23. The case has also been bedevilled by virtue of the fact that a number of papers have been destroyed and their content has had to be recreated by references in other documents, that there are three First-tier Tribunal files
(SC228/13/00952: the Formula Case, SC228/13/02650: the Departure Case and SC068/02074: the Reinstated/Combined Case), that there are three sets of different numberings on the pages and that the parties have been reversed so that the Appellant had become the Second Respondent and the Second Respondent had become the Appellant.
16. In order to concentrate on the points actually in issue in the body of this decision, I have summarised the chronology of the matter in an Appendix which sets out the main steps taken in the each of the First-tier files, although it should be understood that most of them are set out by way of background only and that the compass of this appeal is a relatively narrow one.
17. In summary, both parents disagreed with the decision made by the Child Support Agency (“the CSA”) relating to maintenance which was effective from 17 July 2012 (page 372) and the decision relating to departure (or variation as it would now be called), which was made on 27 March 2013, which was effective from 25 December 2012 (pages 167 to 171). The effect of that latter decision, which is the one currently under appeal, was that
“The effect of this is that the amount of the payments to [the Appellant] for child maintenance will be changed from £39.63 to £396.35 from 25/12/12. However, I have decided that it would not be just and equitable to allow the departure award in full and have restricted the effect of the Departure to £149.18 per week from 25/12/2012”.
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18. The Appellant appealed against that decision on 25 April 2013 (page 177). The Appellant’s appeal in respect thereof was heard on 12 June 2015. The Tribunal Judge held that the appellant’s appeal was to be allowed in part (the decision notice is no longer extant), but on grounds disadvantageous to her in that it was found that the Second Respondent’s income was considerably below the amount used by the CSA in its decision-making process which led to the appeal. The Appellant appealed against that decision. The Judge set aside his decision on 11 August 2015 and ordered a retrial (pages 987 to 989). The Appellant then applied to withdraw her appeal on 6 November 2015. That application was granted and the appeal was withdrawn on 24 November 2015 (again the decision notice is no longer extant).
19. Belatedly the Second Respondent sought professional advice and was subsequently represented. On 19 October 2016 his representative put forward a submission and lodged an application that the Appellant’s appeal should be reinstated under rule 17(4) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (as amended) (“the 2008 Rules”). That letter is not in the bundle either, but the Appellant’s response of 25 November 2016 makes it reasonably clear what he had said. The application was late since it should have been made within one month under rule 17(5), but rule 5(3)(a) gives the Tribunal a general discretion to extend time (up to a limit of 13 months, within which the application had just been made).
The Reinstatement of the Appeal
20. On 10 February 2017 Tribunal Judge Broughton ordered that the appeal be reinstated (pages 1053 to 1055):
“The Appeal under reference numbers [00952] and [02650] are reinstated under this Appeal number [02074]. The Tribunal notes the [Second] Respondent’s submission regarding this but is bound to consider the overriding objective of dealing with all cases fairly and justly. The Appellant in this application, [C], did not apply within one month to reinstate the Appeal after it was withdrawn by the [Second] Respondent but time can be extended under the Tribunal rules and that request was made within the 13 month [time limit]. The Tribunal extends the time as considering all the factors in these cases and its complexity and the amount of
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money involved from both parties it is in the interests of justice that a decision is made relating to the dispute.”
21. That was the salient part of the decision, but he went on to say that
“The Appellant’s representative has left with the Tribunal today a full copy of the papers for ref number [00952 and 02650] and copies are to be forwarded to the Appellant and both Respondents and put with the file for onward transmission to Newcastle SSCSS.
The File is transferred to the Newcastle venue for hearing in accordance with the [Second] Respondent’s request. It should be referred to a Judge for urgent consideration for the appointment of a financial member to sit on the hearing.
The [Second] Respondent should file a further response to the appeals within 6 weeks.
The issues before the Tribunal will be the same as before the last tribunal and deals with a decision made in 2013. It is therefore more likely that all the information will be in the bundle. [F] will be seeking a departure direction at the higher figure she sought and [C] will be opposing that and the effective date is in dispute. However if either party wishes to add to any further submissions they should do so within 6 weeks so as to enable listing directions to be given from Newcastle to ensure that there is no further delay and a decision can be made noting the age of the children and need to attain finality.”
The Appellant’s Email
22. In advance of the hearing of the reinstated appeal on 4 September 2018, the Appellant sent to SSCSA in Newcastle an email (page 1171) which read
“Re the above appeal reference. This was my appeal withdrawn by myself and requested to be struck out by [C]. [C] then approached the Liverpool Tribunal Service under the 13 month rule to reinstate my appeal (after a failed attempt to get the CSA to revise their decision. [C] had no right of appeal as confirmed by the CSA (see p.1114 of these case papers) and Judge Grace concurred.
The Liverpool Tribunal Service stated [C] could reinstate my appeal only as he was out of time – i.e. as myself being the appellant – [C] being the Second Respondent.
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[C] appears to be still the appellant regarding the above refence which I believe to be incorrect. I am still the appellant. Please review”.
The Decision Notice and Statement of Reasons
23. After the hearing of the reinstated appeal on 17 September 2018 the Tribunal Judge produced what amounted to a combined decision notice and statement of reasons (pages 1180 to 1182) which stated as follows:
“1. This was an appeal brought by the appellant against a variation decision of 27 March 2013 which resulted in the increase in the maintenance to be paid by the second respondent.
2. The history of the matter in brief is that there ha[ve] been previous hearings which had been adjourned and following an adjournment on the 12 March 2014 [the] appellant had withdrawn her appeal. That left the variation decision in situ and ultimately the amount to be paid by way of child maintenance unchanged.
3. The Second Respondent then applied for the appeal to be reinstated.
4. The Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 as amended allow any party, i.e. including a respondent, to reinstate an appeal.
5. That reinstatement request had been granted and resulted in the appeal listed for hearing today.
6. At the hearing the question was posed to the parties – “who is the appellant?”
7. As it was agreed between the parties that the matter before the Tribunal was in fact the question of the variation decision made on 2[7] March 2013 which had an effective date of 25 December 2012, the Tribunal concluded that [F] was the appellant. Case law indicates that the Tribunal could not turn the Second Respondent into an appellant.
8. It was conceded by the Second Respondent that the matters relating to his representative’s request for a mandatory reconsideration of issues occurring after the date of decision under appeal and circa 2015 were not before the Tribunal.
9. The appellant indicated the desire to withdraw the appeal.
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10. The Second Respondent’s representative argued that if the appellant were allowed to withdraw her appeal, this would negate the effect of Parliament amending the Rules to allow any party, and especially the second respondent, to reinstate the appeal.
11. The amended Rules as written do not prevent the appellant withdrawing the appeal.
12. It was suggested by the Second Respondent’s representative that the appellant was estopped from withdrawing her appeal.
13. The Tribunal considered the Rules and noted that, although Parliament had decreed that any party could reinstate the appeal, it had not amended the Rules such that where the appellant had not reinstated the appeal, the appellant was estopped from withdrawing it again.
14. The Tribunal considered that had Parliament intended that to be the case it could have made provision for that to be the case when they amended the Rules allowing reinstatement by any party.
15. The second respondent’s representative was unable to cite any authority to show that the appellant was estopped.
16. There were other matters discussed in the course of the consideration of whether or not the appellant was entitled to withdraw the appeal.
17. It was noted from the papers that it would appear that the Second Respondent had failed in an attempt at raising [an] appeal of his own. The Tribunal considered this was irrelevant to the decision as to whether or not the appeal could be withdrawn by the appellant because the appeal before the Tribunal was that of the appellant and not the second respondent.
18. That fact that the Second Respondent had a failed attempt at appealing is something between him and the First Respondent on the facts contained in the papers (namely that his letter of appeal had to be signed for[,] which went somewhat against the second respondent’s assertion that [he] had not received the appeal).
19. The Tribunal also discussed with the parties whether the second respondent’s reinstatement of the appeal was an attempt to process the second respondent’s appeal which the
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First Respondent had indicated had not been received. This was again an irrelevant point.
20. The Tribunal used the phrase “failed appeal” because there is evidence of an appeal being sent by the second respondent to the First Respondent which appears not to have been acted upon even though it appears that the letter of appeal had to be signed for.
21. The fact that the Second Respondent had reinstated the appeal in the circumstance also gave rise to a question of whether the principle of coming to law with clean hands was relevant. It was decided it was not relevant.
22. The main reasons the Tribunal had considered that these discussions were not relevant was firstly because the way the Rules are worded which do not prevent the appellant from withdrawing the appeal as the rules are presently constituted. The second reason was the decision in WM v. SSWP (DLA) [2015] UKUT 642 (AAC). That case indicates the appellant’s desire to withdraw binding on the Tribunal in terms of jurisdiction. The Tribunal has no jurisdiction in the appeal if it is withdrawn where there is no restriction imposed by a Tribunal on the appellant’s ability to withdraw the appeal.
23. In this particular case there had been no restriction placed upon the appellant by any Tribunal in dealing with the appeal in the past.
24. The Tribunal accept that the effect [of] withdrawal of the appeal, which [it] had felt it could not refuse in the circumstances because of the way the Rules are written and the case of WM would be that perhaps a vicious circle of withdrawal and reinstatement would be created.
25. This gave rise to the possibility that there is a lacuna in the Rules when a tribunal is required to deal with a reinstated appeal where the party reinstating is not the appellant.”
The Grant of Permission to Appeal
24. On 9 November 2018 District Tribunal Judge Jacques gave permission to appeal (pages 1188 to 1189) on the following basis:
“1. This appeal was originally withdrawn by the Appellant. It was then reinstated by the Second Respondent.
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2. At the hearing on 17.09.18 the Appellant indicated that she still wanted to withdraw the appeal. The Tribunal acceded to that. The Second Respondent objects.
3. It occurs to the Tribunal that the following issues arise and need to be clarified:
(i) where an appeal is reinstated as here, who then becomes the Appellant? The Tribunal considered that it could not convert the Second Respondent into the Appellant.
(ii) where an appeal is reinstated as here, can the appeal be withdrawn again? The Tribunal considered that there was nothing in the legislation to prevent that.
(iii) if the appeal is correctly withdrawn, is there a right of appeal to the Upper Tribunal available to the other parties?
4. Perhaps 3(iii) is the first issue but if it were to stop there the first two points would be unanswered.”
25. That decision notice was issued to the parties on 14 November 2018. The Second Respondent gave notice to the Upper Tribunal of the grant of permission to appeal on 13 December 2018 (pages 1190 to 1196).
The Rules on Withdrawal
26. The 2008 Rules provide that
“17(1) Subject to paragraph (2), a party may give notice of the withdrawal of its case, or any part of it–
(a) … by sending or delivering to the Tribunal a written
notice of withdrawal; or
(b) orally at a hearing.
(2) In the circumstances described in paragraph (3), a notice of withdrawal will not take effect unless the Tribunal consents to the withdrawal.
(3) The circumstances referred to in paragraph (2) are where a party gives notice of withdrawal–
(a) … in a criminal injuries compensation case …
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(b) in a social security and child support case where the Tribunal has directed that notice of withdrawal shall take effect only with the Tribunal’s consent; or
(c) at a hearing.
(4) An application for a withdrawn case to be reinstated may be made by-
(a)the party who withdrew the case
(b) where an appeal in a social security and child support case has been withdrawn, a respondent.
(5) An application under paragraph (4) must be made in writing and be received by the Tribunal within 1 month after–
(a) the date on which the applicant was sent notice under paragraph (6); or
(b) if the applicant was present at the hearing when the case was withdrawn orally under paragraph (1)(b), the date of that hearing.
(6) The Tribunal must notify each party in writing that a withdrawal has taken effect under this rule.”
27. Rule 17 was amended with effect from 8 April 2013 by virtue of the Tribunal Procedure (Amendment) Rules 2013 (“the 2013 Rules”). The Explanatory Note to the 2013 Rules stated that the amendments to Rule 17 extended the power “to withdraw the case to circumstances in which a case has been adjourned part-heard”. Rule 17(1)(a) was amended to remove from sub-paragraph (1)(a) the words “at any time before a hearing to consider the disposal of the proceedings (or if the Tribunal disposes of the proceedings without a hearing, before that disposal)”. Additionally rule 17(3) was amended to include a new sub-paragraph (3)(b) which had formed no part of the rule prior to 8 April 2013.
28. Sub-paragraphs (4) and (5) in the form in which they currently exist were introduced by the Tribunal Procedure (Amendment) Rules 2015 with effect from 21
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August 2015 and were therefore applicable to this case. Prior to that date the relevant rules stated that
“(4) A party who has withdrawn their case may apply to the Tribunal for the case to be reinstated.
(5) An application under paragraph (4) must be made in writing and be received by the Tribunal within 1 month after—
(a) the date on which the Tribunal received the notice under paragraph (1)(a); or
(b) the date of the hearing at which the case was withdrawn orally under paragraph (1)(b).”
The Decision in WM v. Secretary of State for Work and Pensions (DLA)
29. In WM the proceedings were adjourned part-heard for some months, but the Tribunal made no direction in accordance with rule 17(3)(b) (which had come into force on 8 April 2013) before adjourning. Shortly before the hearing was to resume, the appellant sent a written notice of withdrawal to the Tribunal. Instead of accepting the withdrawal, the Tribunal wrongly proceeded as if its consent to the withdrawal was required. It refused to accept the withdrawal and proceeded to make a decision on the appeal in the absence of the parties. It decided that the appellant was not entitled to an award of either component of disability living allowance.
30. The appellant’s appeal was first listed for hearing on 4 December 2013. The decision notice recorded that the appeal had been adjourned part heard and that the hearing would resume on 20 February 2014. She sought advice from two separate welfare rights organisations and was told that, on withdrawal of the appeal, the award of benefit would remain in place unchanged. Accordingly, on 14 February 2014 she gave written notice that she was withdrawing her appeal. That notice was received by the Tribunal on 18 February 2014. She made it plain in her written notice that neither she nor her husband would be in attendance on 20 February 2014 because she could not afford the funds for a carer to accompany her to the Tribunal. On 20 February 2014 (and in her absence) the Tribunal proceeded to refuse consent to the withdrawal of the appeal. The Tribunal determined that she had no entitlement to benefit with
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effect from 10 February 2012, that being the date of her application for supersession. It held that rule 17(3)(c) applied as the application made by the appellant “was at a hearing”. Such an interpretation meant that the Tribunal’s consent to the withdrawal was required under rule 17(2). The Tribunal found that the absolute right to withdraw an appeal or part of a party’s case was before a hearing. It stated that:
“as the hearing commenced on 4 December 2013 and was adjourned part heard until 20 February 2014 the application made on 18 February 2014 was made ‘at a hearing’.”
31. Upper Tribunal Judge Knowles QC overturned that decision and remade it. She held that
“35. Rule 17(1)(a) – unless qualified by a direction pursuant to Rule 17(3)(b) – gives a party the absolute right to withdraw its case by sending or delivering a written notice of withdrawal. This will be the case even if a hearing to consider the disposal of proceedings has commenced and has been subsequently adjourned as happened in this case and in the case of LJ. The language bears no other interpretation and is, in my view, quite clear.
36. Here, the tribunal strained to interpret the phrase ‘at the hearing’ in rule 17(3)(c) so that it would apply at the time the notice of withdrawal was received whenever that was. Not only did this interpretation ignore the effect of the 2013 changes to Rule 17 but it was inconsistent with the definition of ‘hearing’ in Rule 1(3), namely “an oral hearing and includes a hearing conducted in whole or part by video link, telephone or another means of instantaneous two-way electronic communication”. There was no oral hearing taking place on 18 February 2014 and thus the notice of withdrawal took immediate effect on that date. The tribunal sitting on 20 February 2014 was without jurisdiction to make any change to the Appellant’s award of DLA.
37. My interpretation is reinforced by the addition of Rule 17(2)(b) to Rule 17 with effect from 8 April 2013. I observed, when giving permission to appeal that, if the tribunal was correct that its consent to a withdrawal during an adjournment of the proceedings was required, there was no possible justification for the inclusion of Rule 17(3)(b) in the revised Rules. It seems to me that this Rule operates as an invitation on an adjournment of proceedings – whether part heard or not - for a tribunal to direct in a social security or child support
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case that any written notice of withdrawal received thereafter should not have effect unless the tribunal consents to it. It is quite obvious that the tribunal in this case was contemplating the validity of the Appellant’s entitlement to her current award of DLA. It would have been a prudent and straightforward matter both to have warned the Appellant of this fact and to have guarded against a withdrawal of the proceedings by making a direction in the terms of Rule 17(3)(b). Unfortunately and I suspect through oversight, the tribunal did not take the course which was legitimately open to it.
38. The tribunal in this case was most exercised at the
prospect that a party might seek to withdraw its case or part of
it during a break in the proceedings on the day of the hearing
itself when, for example, the tribunal might have risen to eat
lunch. Rising to eat lunch does not, in my view, constitute a
formal adjournment of the proceedings which might trigger
the possibility of a withdrawal pursuant to Rule 17(1)(a).
Adjournment of proceedings – whether from one day to the
next or from one month to another - is marked by a decision
notice stating that fact and, alongside any other necessary
directions, making provision for when the proceedings might
conclude. No hearing within the meaning of Rule 1(3) is
taking place once an adjournment as I have described it takes
effect.
39. When a tribunal rises to eat lunch, it is plain to me that an
oral hearing is ongoing and that, pursuant to Rule 17(3)(c), the
tribunal’s consent to any application for withdrawal made at a
hearing is necessary. If a tribunal has concerns about the
possibility of withdrawal during the course of the proceedings,
it may wish to make the Rule 17(3)(b) direction either as part
of its case management directions or at the start of the hearing.
Likewise, if the case has to be formally adjourned either to the
next day, the following week or to some later date, a tribunal
may wish to consider whether to make the Rule 17(3)(b)
direction if it has not already done so. However all of these
issues are matters of judgment for a tribunal seised of a
particular case and I make it plain that my comments are not
intended to set a precedent for how tribunals should case
manage the proceedings in each and every social security or
child support appeal.
40. Finally and contrary to the views expressed by the
tribunal, the case of BP preceded the changes to Rule 17 and
is no longer good authority on the interpretation of Rule 17
since it relies on the very wording which was excised from
Rule 17(1)(a) with effect from 8 April 2013. Instead, I align
myself with the reasoning set out in the case of LJ which drew
attention to the intention behind the amendments to Rule 17
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set out in the Explanatory Note. The case of AE does not
detract from either the reasoning in LJ or in this decision since
it did not consider in detail the timing and consequential effect
of any notice of withdrawal.
41. Given the analysis set out above, I conclude that the
written notice of withdrawal received by the tribunal on 18
February 2014 had immediate effect and brought the
proceedings to a conclusion. The tribunal erred in law by not
accepting the notice on that date and by soliciting submissions
about it from the Respondent. Given the effect of this valid
notice, the tribunal was without jurisdiction to determine any
matter relating to the Appellant’s entitlement to DLA on 20
February 2014 and erred in law by so doing.”
32. She summarised her conclusion as follows:
“2. I have decided that a notice of withdrawal given by a party in accordance with Rule 17(1)(a) has immediate effect. There is thus no need for a tribunal to make a decision about whether to consent to the withdrawal. A withdrawal in accordance with Rule 17(1)(a) has that effect even if, for example, proceedings before a tribunal are adjourned partheard. However the immediate effect of Rule 17(1)(a) may be qualified in a social security or child support case if a tribunal has directed, pursuant to Rule 17(3)(b), that notice of withdrawal shall only take effect with the consent of the tribunal. In those circumstances notice given under Rule 17(1)(a) will not take effect without the consent of the tribunal.”
33. It is apparent from this explanation that the Tribunal in that case was not concerned with the question of the reinstatement of an appeal or the purported withdrawal of a reinstated appeal.
The First Question
34. Where an appeal is reinstated as here, who then becomes the appellant?
35. The short answer is that the identity of the appellant remains unchanged; there is nothing in the 2008 Rules to provide otherwise. The respondent seeks to reinstate the appeal not to take it over, but to compel the appellant to carry on with it until the end.
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That does not, however, make him the appellant. The Tribunal cannot convert the respondent into the appellant.
36. The Tribunal was therefore correct to decide that the Appellant remained the Appellant and that the reinstatement of the appeal did not turn the Second Respondent into the Appellant.
The Second Question
37. Where an appeal is reinstated, as here, can the appeal be withdrawn again?
38. The Tribunal found for the appellant and allowed her to withdraw the appeal for two reasons:
(i) although Parliament had decreed that any party could reinstate the appeal, it had not amended the Rules such that where the appellant had not reinstated the appeal, the appellant was estopped from withdrawing it again. Had Parliament intended that to be the case it could have made provision for that to be so when it amended the Rules allowing reinstatement by any party.
(ii) it was bound by the decision in WM v. SSWP (DLA) which indicated that the appellant’s desire to withdraw was binding on the Tribunal in terms of jurisdiction.
39. The obvious problem with the Tribunal’s decision, as the Tribunal itself accepted, is that it creates a vicious circle of withdrawal and reinstatement. If an appeal can be first withdrawn and then reinstated and then withdrawn again, why should it not be reinstated again and so on ad infinitum?
40. The answer is that the rule only allows one bite of the cherry to each party. The appellant may withdraw the appeal once; the respondent may apply for the withdrawn appeal to be reinstated once. Thereafter the ability to seek withdrawal or reinstatement is exhausted. Rule 17 does not on its true construction permit a second bite of the
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cherry to either party.1 Any other open-ended construction of the legislation would lead to the absurdity mentioned in the last paragraph and recognised by the Tribunal itself.
41. It is not therefore the case that the Rules are so worded that they do not prevent the appellant from withdrawing a reinstated appeal. The Tribunal was wrong so to decide. Once a withdrawn appeal has been reinstated it must be adjudicated upon on its merits.
42. There is therefore no lacuna in rule 17 when a Tribunal is required to deal with a reinstated appeal where the party who sought and obtained the reinstatement is the respondent. The ability to seek withdrawal and reinstatement have been exhausted and the appeal must be adjudicated upon on its merits. If the appellant seeks to challenge the decision on the merits, the proper course is to ask for a statement of reasons and to seek permission to appeal that substantive decision, not to seek an impermissible withdrawal of the appeal for a second time.
43. The one argument which the Appellant has raised in her submissions which might have had some traction if made in time was in relation to an alleged procedural irregularity in the making of the order for reinstatement. She sets out the story at page 1228. There is no doubt that she was aware that there had been an application for reinstatement and indeed made lengthy (but frankly unfocussed) submissions opposing it. However, she says that when she spoke to the Tribunal Office she was told that the application would be dealt with without a hearing. She also insists that she had not received any notice of the hearing when it actually took place. She suggests that this was because the Tribunal Judge had decided to hold an ex parte hearing, but there can be no conceivable reason why he would have done so and the CSA was certainly notified of the hearing. There might, however, have been an argument that notification to her had gone astray.
1 In one limited sense an appellant may have two bites of the cherry by withdrawing the appeal and then applying to reinstate it under rule 17(4)(a), but he is not asking for the same thing twice over: he can withdraw it once and can apply to reinstate it once.
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44. The problem for the Appellant, however, is that the order for reinstatement was made on 10 February 2017 and she did not appeal against that order nor did she seek to set it aside for more than 18 months.
45. I am bound to say that I do not see how an application to set aside the decision would have succeeded since the power to set aside under rule 37 of the 2008 Rules only applies in the case of a decision “which disposes of proceedings” and the reinstatement of the appeal did not dispose of the proceedings - far from it. She did make a complaint against the making of the decision. That was adjudicated upon and her complaint was rejected (page 1229), but she did not seek to appeal against it.
46. So far as permission to appeal is concerned, rule 38 of the 2008 Rules, so far as material, provides that
“Application for permission to appeal
38(1) This rule does not apply to asylum support cases or criminal injuries compensation cases.
(2) A person seeking permission to appeal must make a written application to the Tribunal for permission to appeal.
(3) An application under paragraph (2) must be sent or delivered to the Tribunal so that it is received no later than 1 month after the latest of the dates that the Tribunal sends to the person making the application—
(za) the relevant decision notice …
…
(5) If the person seeking permission to appeal sends or delivers the application to the Tribunal later than the time required by paragraph (3) or by any extension of time under rule 5(3)(a) (power to extend time)—
(a) the application must include a request for an extension of time and the reason why the application was not provided in time; and
(b) unless the Tribunal extends time for the application under rule 5(3)(a) (power to extend time) the Tribunal must not admit the application.
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(6) An application under paragraph (2) must—
(a) identify the decision of the Tribunal to which it relates;
(b) identify the alleged error or errors of law in the decision; and
(c) state the result the party making the application is seeking”.
47. Whilst there is no longer an absolute time limit on applications (previously an application could not be accepted if it was more than a year late), the Tribunal would have to exercise its discretion and make use of its power to extend time under rule 5(3)(a) to accept an application out of time. The power in rule 5(3)(a) is subject to the overriding objective set out in rule 2. As to that Judge Jacobs explained in R(KS) v. First-tier Tribunal & CICA [2012] UKUT 281 (AAC); [2013] AACR 9:
“11. The tribunal had power to extend that time under rule 5(3)(a). The power is unfettered: R (CD) v First-tier Tribunal (CIC) [2010] UKUT 181 (AAC); [2011] AACR 1 at [26]. As such, it has to be exercised judicially and in accordance with the overriding objective in rule 2. Within that framework, the tribunal is required to take account of any factor that is rationally related to the proper judicial exercise of the power to extend time. Those factors were conveniently classified in relation to permission to appeal by McCowan LJ in Norwich and Peterborough Building Society v Steed [1991] 1 WLR 449 at 450:
“The matters which this court takes into account in deciding whether to grant an extension of time are first, the length of the delay; secondly, the reasons for the delay; thirdly, the chances of the appeal succeeding if the application is granted; and fourthly the degree of prejudice to the respondent if the application is granted.”
It may be that other factors have to be taken into account under the overriding objective. The impact on other users of the tribunal system may be an example.”
48. The delay in this case would now have been more than 3 years since the decision to reinstate the appeal. Moreover, it seems to me that the chances of success of any
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appeal would be speculative given that the Tribunal had said in the very broadest terms when reinstating the appeal
“The Tribunal notes the [Second] Respondent’s submission regarding this but is bound to consider the overriding objective of dealing with all cases fairly and justly ... The Tribunal extends the time as considering all the factors in these cases and its complexity and the amount of money involved from both parties it is in the interests of justice that a decision is made relating to the dispute.”
Given the breadth of that decision, it is difficult to see that it was wrong in law.
49. Moreover, the sum at stake was not inconsiderable. Under the variation decision which the respondent sought to challenge after the reinstatement of the appeal, the effect was that the amount of the payments to the Appellant for child maintenance would have been changed from £39.63 to £149.18 from 25 December 2012. In addition, a further factor militating against the grant of permission to appeal out of time is that, once the time for appealing has elapsed, the respondent who was successful in the Tribunal below is entitled to regard the decision in his favour as being final. In my judgment the factors against the grant of permission to appeal out of time far outweigh any factors weighing in its favour.
50. I am therefore satisfied that the First-tier Tribunal would not admit an out of time application for permission to appeal against the reinstatement decision of 10 February 2017, which would now be more than 3 years out of time, and I have no reason to believe that any further application to the Upper Tribunal for permission to appeal out of time would be treated any differently. The reinstatement decision must therefore stand.
51. So far as the second reason adduced by the Tribunal is concerned, as is apparent from what I have set out above the decision in WM does not govern the present circumstances.
52. It was not concerned with reinstatement by a respondent under rule 17(4)(b), not least because the amendments to rule 17(4) and (5) did not come into effect until 21
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August 2015, whereas the decision in WM was concerned with a decision which was made on 20 February 2014. What it concerned was that a notice of withdrawal given by a party in accordance with rule 17(1)(a) had immediate effect so that there was no need for a tribunal to make a decision about whether to consent to the withdrawal. A withdrawal in accordance with Rule 17(1)(a) had that immediate effect even if proceedings before a tribunal were adjourned part-heard. The immediate effect of rule 17(1)(a) could be qualified in a social security or child support case if the tribunal directed pursuant to rule 17(3)(b) that notice of withdrawal should only take effect with the consent of the tribunal. In those circumstances notice given under rule 17(1)(a) would not take effect without the consent of the tribunal.
53. I am therefore satisfied that the Tribunal fell into error when it allowed the Appellant to withdraw for a second time the appeal which had already been reinstated when she had not appealed that reinstatement decision within time. Neither the Rules as drafted nor any authority binding on the Tribunal required it to reach that conclusion.
54. It is not therefore necessary to make a direction under rule 17(3)(b) that notice of withdrawal shall take effect only with the Tribunal’s consent, as the Second Respondent has argued. It is not open to the Appellant to seek to withdraw the now reinstated appeal.
The Third Question
55. If the appeal is correctly withdrawn, is there a right of appeal to the Upper Tribunal available to the other parties?
56. In the light of the conclusions which I have reached in relation to the second question, the third question does not arise. The appeal was not correctly rewithdrawn and it is now too late to appeal the decision to reinstate it.
57. If an appellant has exercised a right to withdraw without the need for permission under rule 17(1)(a), which gives a party the absolute right to withdraw its case by sending or delivering a written notice of withdrawal, there can be no appeal since there has been no decision by the First-tier Tribunal. That would be the case even if a
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hearing to consider the disposal of proceedings had commenced and had been subsequently adjourned as happened in WM. An appeal by another party would only be available in the event that the Tribunal had to give consent to a withdrawal in the three circumstances set out in rule 17(3), although it would also be open to a respondent to apply for reinstatement under rule 17(4)(b) where an appeal has been withdrawn in a social security and child support case.
Conclusion
58. For the reasons set out above I am satisfied that the Tribunal made an error of law which was material to its decision and for that reason the decision of the Tribunal should be set aside.
59. I therefore allow the appeal and set aside the decision of the Tribunal. I remit the matter to a new tribunal which should conduct a complete rehearing of the matter.
60. I am not, however, determining the merits of any such rehearing. I note, but specifically do not determine, the questions as to the merits which the Second Respondent raised in Section F of his notification of appeal in the last three paragraphs (page 1193).
61. It is for the new tribunal itself to decide what decision to make on the facts as found by it, depending on the view it takes of the facts and providing it makes proper findings of fact and gives adequate reasons. It would not be appropriate for me to express any opinion either way on the merits of the reheard case.
Directions
62. Any more detailed directions for the rehearing before the new tribunal should be left to a Tribunal Judge of the First-tier Tribunal (Social Entitlement Chamber), having considered any further submissions which the parties may wish to make on such practical matters.
63. The following directions apply to the hearing before the new tribunal:
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(1) The new tribunal should not involve any member who was a member of the Tribunal involved in the hearing of the original appeal.
(2) The new tribunal must consider and make relevant findings as to the correctness of the departure decision dated 27 March 2013 and the effective date of any such departure.
(3) The new tribunal is not bound in any way by the decision of the previous Tribunal.
(4) These directions may be supplemented as appropriate by later directions by a Tribunal Judge of the First-tier Tribunal (Social Entitlement Chamber).
Coda
64. I am bound to say that this is a decision which I reach with no enthusiasm. This litigation has dragged on for far too long. (I do not seek to apportion blame for that situation since it will only inflame matters further and will not contribute to the all too necessary ultimate resolution of the case.) The twins whose support as children lay at heart of it are now 23. It will involve consideration of a decision made as long ago as 27 March 2013. It may even involve a further appeal to this Chamber against any further decision of the First-tier Tribunal. In the present circumstances that First-tier decision may perforce be delayed for some considerable time. Any onward appeal would be even more protracted. I would very strongly urge the parties to reconcile their differences and reach a mutually acceptable accommodation to bring this matter to an end.
Signed Mark West
Judge of the Upper Tribunal
Dated 22 May 2020
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APPENDIX
Chronology
In each case F is the Appellant, the Secretary of State is the First Respondent and C the Second Respondent
SC228/13/00952 (the Formula Case)
25 March 2011 Decision on child support maintenance
C liable to pay child support maintenance of £0 per week from the effective date of 22 March 2011
Page 365
2 July 2011 F applies for review of decision of 25 March 2011
F applies to commissioner for maintenance assessment made on 25 March 2011 to be reviewed due to change in circumstances, namely a change in housing costs
Page 365
10 July 2012 Commissioner’s decision superseding decision of 25 March 2011
C liable to pay £38.63 per week with an effective date of 17 July 2012
Page 372
12 December 2012 Refusal to revise notification issue
F disputed the decision, but decision maker unable to revise the decision
Page 365, 465-466
28 December 2012 F lodged appeal against the decision of 10 October 2012 in 00952
F argued that since 2002 that income was inconsistent with lifestyle. She disagreed with C’s income declaration and stated that he had a lifestyle which exceeded his ability to pay
Page 365, 380-386
16 February 2013 Decision maker unable to revise decision of 10 July 2012; appeal continued
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F asked for the decision to be revised as the income used did not reflect the circumstances. After lengthy investigation was unsuccessful in identifying any other source of income and it was decided to refuse to revise the decision
Page 365
12 June 2015 Decision notice issued
Appeal allowed in part and decision made on 10 July 2012 set aside. From the effective date of 10 October 2111 C was liable to pay child support maintenance of £32.46 per week and from the effective date of 12 July 2012 C was liable to pay £38.63 per week. The appeal was allowed in respect of the change in the effective date.
Not extant
11 August 2015 Decision notice issued
Decision of Tribunal set aside. The Tribunal misdirected itself as to the effective date of the interim maintenance assessment
6 November 2015 Request for withdrawal
Granted and appeal withdrawn on 24 November 2015
Pages 987 - 989
SC228/13/02650 (the Departure Case)
27 August 2002 Letter from F to CSA
Referred to C’s lifestyle outweighing the salary stated
9 October 2002 Request for departure application form
Request made by the complaints resolution team for a departure application form to be issued to F
9 October 2002 CSA issued application departure form to F
Allows CSA to take into account other things it would not normally look at when making a calculation
No return received
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13 December 2002 2002 CSA issued application departure form to F
Allows CSA to take into account other things it would not normally look at when making a calculation
No return received
10 July 2012 Current maintenance assessment calculated (subject of appeal)
£38.63 per week calculated on 10 July 2012 and effective from 17 July 2012
C had a partner living with him and the information regarding his partner’s income was not provided
Interim maintenance assessment was imposed
Page 372
18 July 2012 CSA issued application departure form to F
Allows CSA to take into account other things it would not normally look at when making a calculation
No return received
28 December 2012 CSA accepted F’s application for departure
This is the date on which the CSA states that it received an effective application for a departure direction from F in respect of lifestyle inconsistent with declared income. Decided effective date for departure direction would be 25 December 2012
Pages 380-386
21 February 2013 Further information received from F
Page 115 to 116
27 February 2013 CSA gave notice of application to C
CSA gave notice of application to C; he was invited to make representations, but no response reived
Pages 141 to 143
30 March 2013 Decision notified (made 27 March 2013)
Departure direction from 25 December 2012 increased C’s child support maintenance liability from £38.63 per week to £149.18 per week
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Pages 155 to 157
25 April 2013 F lodged appeal against decision notified on 30 March 2013
Ground lifestyle inconsistent with declared income
Disagrees with effective date – been trying for years to request CSA investigate C’s financial circumstances as always had lifestyle inconsistent with his declared income
Information provided by C in response to the appeal is dated 13 March 2013 and predates the date of the departure decision made on 27 March 2013. The CSA submits that it was possible that C’s intention was that the information should be considered in relation to F’s departure application
Pages 177, 178 to 179
12 June 2015 Decision notice issued
Appeal allowed. Decision made on 27 March 2013 set aside
DWP to calculate C’s liability to pay child support maintenance from the effective date of 25 December 2012 based on a weekly income of £205.15. This is his declared net income of £148.26 per week plus a departure direction award of £52.89 per week
Not extant
11 August 2015 Decision notice issued
Decision issued on 12 June 2015 set aside. Linked to other decision dated 12 June 2015 which was set aside
Pages 987 to 989
6 November 2015 Request for withdrawal
Granted and appeal withdrawn 24 November 2015
Not extant
SC068/02074 (the Reinstated/Combined Case)
24 November 2015 Appeals 02650 and 00952 withdrawn
Appeals withdrawn
Decisions of CSA stand
Not extant
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18 December 2015 C’s advisors notified CSA that departure decision was incorrect
Did not apply for reinstatement of 02650
Pages 1031 to 1033
3 February 2016 Decision on maintenance assessment
Decision to confirm interim maintenance assessment effective from 1 October 2011 and to impose a departure decision effective from 25 December 2015 (subject of 02650)
Page 1116
11 February 2016 Letter from CSA Departure decision review of maintenance assessment
Departure decision effective rom 25 December 2012 at a reduced rate of £142.11
Page 1116
16 May 2016 Refusal to conduct a mandatory reconsideration
Letters issued on 11 February 2016 and 1 April 2016 advised decision did not carry right of appeal
27 May 2016 Appeal to Tribunal
Following the refusal to conduct a mandatory reconsideration
Decision subject to earlier appeal by F (03650). The earlier appeal was allowed, set aside and withdrawn. C did not apply for the appeal to be reinstated
8 July 2016 Directions Notice issued (dated 5 July 2016)
Case to be listed for a directions hearing to consider whether the appeal can be admitted
26 August 2016 Adjourned
SoS had not received Directions notice dated 5 July 2016. SoS to file submission as to why letter of 11 February 2016 did not amount to a decision which carries appeal rights together with comments on F’s submission
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28 September 2016 Directions Notice issued
F added as a party to the proceedings. All parties directed to file any further submissions as to whether appeal 02650 should be reinstated
FS v Secretary of State for Defence (WP) [2017] UKUT 0194 (AAC)
FS v Secretary of State for Defence (WP) [2017] UKUT 194 (AAC)
CAF/3122/2016 1
IN THE UPPER TRIBUNAL Case No. CAF/3122/2016
ADMINISTRATIVE APPEALS CHAMBER
Before Upper Tribunal Judge Rowland
Decision: The claimant’s appeal is allowed. The decision of the First-tier Tribunal
dated 27 July 2016 is set aside and, by consent, there is substituted a decision
maintaining a composite interim assessment of 70% from 20 August 2012 in respect
of the following conditions –
(a) prolapsed intervertebral disc (AD1); and
(b) pain and numbness in left leg and pain in right hip (AD2).
REASONS FOR DECISION
1. This is an appeal, brought by the claimant with permission granted by the
First-tier Tribunal, against a decision of the First-tier Tribunal dated 27 July 2016,
whereby, on his appeal from a decision of the Secretary of State notified on 21 July
2015 reviewing but maintaining an assessment of disablement at 70%, it reduced the
assessment to 40% with effect from 20 August 2012. The Secretary of State
supports the appeal and both parties are now agreed that the assessment should be
restored to 70%.
2. A form of consent order in the style used in courts has been submitted
Nevertheless, I will follow the Upper Tribunal’s usual practice of giving brief reasons
for allowing the appeal, for the benefit of the First-tier Tribunal as much as for the
benefit of the parties.
3. The claimant was born in 1930 and so is now in his mid-80s. He served in the
Army from 1948 to 1950 and was then a member of the Territorial Army until 1969.
The documents originally before the First-tier Tribunal did not give the full history of
his claim for a war pension, but it managed to elicit further evidence sufficient for its
purposes. The original award of a war disablement pension was made in 1969 in
respect of a prolapsed intervertebral disc. The assessment was then 30%,
increased to 40% in 1994 and to 50% by a Pensions Appeal Tribunal in 1998. In
2002, another Pensions Appeal Tribunal accepted a claim for a second condition –
“pain and numbness in left leg and pain in right hip”, with effect from 2000, and a
composite assessment of 60% was made. On 20 August 2010, the First-tier Tribunal
(which had by then replaced the Pensions Appeal Tribunals in England and Wales)
made an interim assessment of 70% in respect of the period from 19 June 2009 to
19 August 2012. As far as I can see, the fact that the assessment was for a limited
period seems to have escaped the Secretary of State and he continued paying the
pension after the period had ended. It was not until 28 January 2015 that another
certificate, making a long-term interim assessment of 70%, was issued, together with
a decision in which it was said –
“The Generous assessment of 70% for AD1 and AD2 is maintained”.
Nothing specific was said in the certificate or the decision as to the period for which
the assessment was effective, but the First-tier Tribunal subsequently treated it as a
FS v Secretary of State for Defence (WP) [2017] UKUT 194 (AAC)
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decision effective for an indefinite period from 20 August 2012, which seems
consistent with what is usually meant by “Interim LTA” and with the duty – which has
to be implied in the absence of any express provision in the Naval, Military and Air
Forces Etc. (Disablement and Death) Service Pensions Order 2006 (SI 2006/606)) –
to make a further assessment when a fixed-term interim assessment expires.
4. The claimant applied for a review of that assessment. That was correctly
treated by the Secretary of State as an application for a review “on any ground”
under article 44(1)(b) of the Order that, because it had been made within three
months of the decision to be reviewed, could be effective from the date from which
the decision being reviewed was effective (see paragraph 1(3) of Schedule 3 to the
Order1). However, the previous assessment was maintained, in a decision
apparently given on 17 July 2015 but notified to the claimant on 21 July 2015 and for
which reasons were given only on 15 September 2015, after the claimant had
appealed.
5. The claimant’s appeal came before the First-tier Tribunal on 27 July 2016. At
the outset, the claimant was warned that the First-tier Tribunal could reduce the
assessment of disablement but, having taken advice from his Royal British Legion
representative, he indicated that he wished his appeal to proceed. The First-tier
Tribunal had formed a preliminary view that the claimant had previously been over-
1
The Secretary of State actually purported (see doc 2 (reverse)) to rely on “Article 46.1(3)”, but article
46 is very short provision that merely introduces Schedule 3 and it is therefore clear that paragraph
1(3) of that Schedule is what he had in mind, presumably as read with paragraph 1(4)(b). In War
Pensions and Armed Forces Compensation – Law and Practice (Wildy, Simmonds & Hill, 2016),
Judge Andrew Bano says in a footnote on page 46 that the wording of paragraph 1(3), (4) and (5) of
Schedule 3 “is very unclear”. That is, in my view, a gross understatement: one can interpret those
subparagraphs only by imagining what the legislator might have wished to achieve, which is not an
altogether satisfactory approach to statutory construction. Paragraph 1(1) to (5) provides –
“1.—(1) Subject to the following provisions of this Schedule, an award or an adjustment of an award
shall have effect from such date as may be specified in the award, being a date not earlier than the
date specified in subparagraph (2) which is relevant in the claimant's case.
(2) The date specified in this subparagraph is whichever date is the latest in time of the date—
(a) following the date of termination of service or, in a case under Part III, following the date of
death of the member;
(b) of the claim;
(c) of the last application for review; or
(3) Where in a case to which subparagraph (1) applies, the claimant satisfies the requirements of
subparagraph (4) the award shall have effect from the date the subparagraph is satisfied.
(4) This paragraph is satisfied where the date of claim or application for review is made within 3
months of—
(a) the date of termination of service, or the date of death where an award is made in respect of a
member's death; or
(b) except where paragraph (a) applies, the date of notification of a decision on the claim or
review.
(5) Where the requirements of subparagraph (4) are satisfied on more than one occasion and the
occasions on which they are satisfied are consecutive, subparagraph (3) shall apply as from the first
occasion on which subparagraph (4) is satisfied.”
The surplus or misplaced “or” at the end of paragraph (2) is presumably the result of forgetfulness
after the draftsman had decided that a draft head (d), whatever it was, was not a good idea and
should be omitted, but the drafting of subparagraphs (3) and (5) is difficult to excuse. What is meant
by the date on which, or the occasion from which, subparagraph (4) is satisfied? A sensible literal
construction is not possible.
FS v Secretary of State for Defence (WP) [2017] UKUT 194 (AAC)
CAF/3122/2016 3
assessed and it did not alter that view in consequence of the hearing. In a detailed
statement of reasons, it explained its thinking and also showed clearly that it had in
mind the terms of article 44 of the 2006 Order, relating to reviews.
6. In relation to assessments of disablement, article 44(4) provides –
“(4) Subject to the provisions of paragraph (9), following a review under paragraph
(1) of … any assessment of the degree of disablement of a member of the armed
forces, that … assessment may be revised by the Secretary of State to the detriment
of a member of the armed forces only where the Secretary of State is satisfied
that—
(a) the … assessment was given or made in consequence of ignorance of, or a
mistake as to, a material fact, or of a mistake as to the law; or
(b) …; or
(c) there has been a change in the degree of disablement due to service since
the assessment was made.”
As I said in JM v Secretary of State for Defence (WP) [2014] UKUT 358 (AAC) –
“14. … These conditions ensure that a mere difference of opinion as to the
proper level of the assessment cannot justify a reduction in the assessment or the
consequent award (see Cooke v Secretary of State for Social Security [2001] EWCA
Civ 734 (reported as R(DLA) 6/01)). …”
7. The First-tier Tribunal found that the claimant’s total disablement merited an
assessment of 70% but that at least half of that was attributable to chronic
obstructive pulmonary disease, asthma and a cardiac condition that were not due to
service. Accordingly it considered that disablement due to service should be
assessed at 35%, which it rounded up to 40% under article 42(5). As to the
restrictions on revision of an assessment of disablement imposed by article 44(4), it
said –
“39. … We find that the review decision under appeal was made in consequence
of ignorance of, or a mistake as to, a material fact. We find that on review the
Respondent failed to take into account the very significant disabling nature of the
non-accepted conditions namely COPD and cardiac condition.”
In giving permission to appeal, the senior resident judge, who had not been the
judge presiding at the hearing, pointed out that the reasons given on 15 September
2015 for the review decision that was under appeal had in fact referred to both
COPD and the cardiac condition. When issuing case management directions, I
suggested that, if the decision being reviewed was the decision of the First-tier
Tribunal dated 20 August 2010, article 44(3) applied to impose further restrictions.
8. It is important when applying article 44 on an appeal to distinguish between
the review decision against which the appeal has been brought and the decision that
was under review (which may itself have been a review decision in relation to an
even earlier decision). I accept the Secretary of State’s submission that it was not
the decision of the First-tier Tribunal dated 20 August 2010 that was being reviewed
here (at least in any material sense), because the assessment in that case had
FS v Secretary of State for Defence (WP) [2017] UKUT 194 (AAC)
CAF/3122/2016 4
expired. It was the Secretary of State’s assessment of 28 January 2015 that was
reviewed in July 2015. Save perhaps to the extent that it could be regarded as a
continuation of the review of the earlier 60% assessment, which was started by the
2010 decision of the First-tier Tribunal, the decision of 28 January 2015 had not
itself been a review decision: it had merely been an assessment belatedly made
following the expiry of the earlier interim assessment.
9. Thus, what mattered in this case was not whether the decision made in July
2015 had been made in consequence of ignorance of, or a mistake as to, a material
fact but whether the decision of 28 January 2015 had been. It follows that the
reasoning of both the panel sitting on 27 July 2016 (if it really meant to say what it
did say) and that of the senior resident judge is flawed. On the other hand, the
senior resident judge’s point holds good in respect of the earlier decision because
the reasons given for that decision show clearly that the Secretary of State and his
medical advisor were, unsurprisingly, even then well aware that much of the
claimant’s disablement was due to non-accepted cardiac and respiratory conditions.
10. The Secretary of State submits, that the First-tier Tribunal appears to have
taken a different view as to the extent to which disablement was caused by the nonaccepted conditions. It seems to me that it was in respect of the appropriate
assessment of the overall disablement and the relative contributions of the accepted
and non-accepted conditions where there were differences of view but, in any event,
such differences of opinion are not enough to justify revising an assessment to the
detriment of the claimant. Given that the Secretary of State had been well aware of
the non-accepted conditions and had accepted that their contribution to the
claimant’s overall disablement had to be ignored in the assessment of disablement
for war pensions purposes, it is not obvious on what grounds it could be said that the
assessment of 28 January 2015 was made in consequence of ignorance of, or a
mistake as to, a material fact or of a mistake as to a law. In any event, the First-tier
Tribunal’s statement of reasons did not provide an explanation. I therefore accept
that the First-tier Tribunal’s decision is wrong in law.
11. Originally, the Secretary of State submitted that the case should be remitted
to the First-tier Tribunal. However, both parties are now agreed that I should merely
substitute a decision maintaining the previous assessment, thus reinstating the
Secretary of State’s original decision. That seems to me to be a sensible approach
in the circumstances of the case and I therefore give the decision set out above.
Mark Rowland
10 May 2017
FY v Secretary of State for Work and Pensions [2018] UKUT 146 (AAC)
FY v SSWP (RP) [2018] UKUT 146 (AAC)
CP/1710/2017 1
DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
The DECISION of the Upper Tribunal is to dismiss the appeal by the Appellant.
The decision of the Liverpool First-tier Tribunal dated 28 February 2017 under file reference SC068/16/01947 involves no material error on a point of law. The First-tier Tribunal’s decision accordingly stands.
This decision is given under section 11 of the Tribunals, Courts and Enforcement Act 2007.
REASONS FOR DECISION
The issues raised by this appeal to the Upper Tribunal
1. The important issues raised by this appeal to the Upper Tribunal are twofold.
2. The first issue (“Ground 1”) concerns rule 27(1) of the Tribunal Procedure (Firsttier Tribunal) (Social Entitlement Chamber) Rules 2008 (SI 2008/2685; hereafter “the SEC Procedure Rules”). The Appellant’s submission is that rule 27(1) vests the Secretary of State with an automatic right to an oral hearing of an appeal before the First-tier Tribunal, irrespective of the Appellant’s own wish for a hearing on the papers. Perhaps counterintuitively, the Appellant asserts this amounts to a contravention of the principle of equality of arms and hence a breach of Article 6(1) of the European Convention on Human Rights (or ‘ECHR’; in this decision I also refer to the European Court of Human Rights as either the ‘ECtHR’ or the ‘Strasbourg court’). The Appellant’s principal argument is that rule 27(1) is only ECHR-compliant if it is construed so as to vest the First-tier Tribunal with a discretion to decide not to hold an oral hearing in circumstances where a claimant argues that there should be a hearing on the papers.
3. The second, and potentially even more significant issue (“Ground 2”), concerns the consequences of the effective abolition of the Category B retirement pension for new claims, as implemented by section 23 of, and paragraph 60 of Schedule 12 to, the Pensions Act 2014. In short, the Appellant’s submission was that the elimination of the prospect of a Category B pension payable to his spouse based on his national insurance contributions, and without the introduction of any transitional rules to protect his wife, himself and his family, was unlawful both as regards ECHR and European Union law.
The Upper Tribunal’s decision in summary
4. The Appellant’s appeal to the Upper Tribunal is dismissed. The decision of the Liverpool First-tier Tribunal (“the Tribunal”), dated 28 February 2017, does not involve any material error of law. The Tribunal’s decision accordingly stands.
The background: some key facts
5. The Appellant, who now lives in Canada, was born in the United Kingdom on 21 April 1951. He worked in the telecoms industry in Lancashire from leaving school in 1967 until 1972, when he emigrated to Canada. Throughout his working life there he paid voluntary Class 3 national insurance contributions into the British scheme. Such Class 3 contributions only give rise to entitlement to retirement pensions and bereavement benefits. The Appellant’s wife, LK, is a Canadian national who has
FY v SSWP (RP) [2018] UKUT 146 (AAC)
CP/1710/2017 2
never lived or worked in the United Kingdom; she was born on 11 January 1955 and they married in Canada on 20 May 1995.
6. The Appellant therefore reached state pension age on 21 April 2016 at the age of 65 (Pensions Act 1995, Schedule 4, paragraph 1(1)). LK herself will not attain state pension age until 11 January 2021, on her 66th birthday (Pensions Act 1995, Schedule 4, paragraph 1(6), as amended by the Pensions Acts 2011 and 2014).
7. The Pensions Act 2014, which radically overhauled (and in broad terms simplified) the scheme for the provision of state retirement pensions, came into force (at least for all present purposes) on 6 April 2016, about a fortnight before the Appellant reached the age of 65.
The Pensions Act 2014: some key features
8. According to the Summary in the Explanatory Notes to the Pensions Act 2014 (at paragraph 18):
“18. The legislation creates a new state pension for people reaching pensionable age on or after implementation on 6 April 2016. A person entitled to the full state pension will be paid a single weekly rate to be set out in regulations. This replaces the existing state pension, which has two components: a basic pension and an additional pension. The Act contains special provisions for people who have made National Insurance contributions before implementation to ensure that all their National Insurance contributions are taken into account (subject to a minimum qualifying years requirement).
9. The commentary to section 1 of the Pensions Act 2014 in the Explanatory Notes continues as follows:
“45. Although the term ‘state pension’ has been commonly used to refer to Category A to Category D contributory and non-contributory pensions paid since the 1970s (and now payable under the SSCBA 1992), in legislation these are referred to as ‘retirement pensions’. For ease of reference this commentary therefore refers to the new benefit as the ‘new state pension’ and the current retirement pension as the ‘old retirement pension’.
46. Those reaching pensionable age on or after the start date for the new state pension will not be eligible for the old retirement pension. This start date is to be 6 April 2016. The old retirement pension arrangements will continue for people who reach pensionable age before 6 April 2016.”
10. The Explanatory Notes also explained that a further change included the abolition of the former Category B pension (subject to two narrowly drawn exceptions, both of which are immaterial for present purposes: see Pensions Act 2014, sections 7, 11 and 12):
“65. Under the old retirement pension rules, a person who is, or who has been, married or in a civil partnership may be entitled to a pension based on the National Insurance record of their spouse or civil partner (usually by way of a ‘Category B’ pension). This will not be the case for those reaching pensionable age after the start date of the new state pension.”
11. On the face of it the Appellant and his wife LK will obviously be affected by this change. The question, however, is whether they can challenge that change through
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the current proceedings. For the reasons that follow (in relation to Ground 2) I decide that they cannot.
The earlier correspondence with the British national insurance authorities
12. Meanwhile, over the years that he has been living in Canada, the Appellant has been in correspondence with the British authorities from time to time with regard to both his prospective retirement pension entitlement and that of LK’s. For example, on 28 July 2000 the Inland Revenue NI Contributions Office wrote to the Appellant, in response to his enquiry, explaining that “when you make your claim to Retirement Pension, your wife (if over age 60) would be entitled to a pension based on your National Insurance record. If she is under 60 you may be entitled to an increase in your Retirement Pension for a dependant wife, providing her earnings are not over a certain amount”. Similarly, on 11 December 2010 the Appellant e-mailed the International Pension Centre, asking if LK would qualify for a Category B retirement pension based on his NI record when she reached the appropriate retirement age. The official’s response was “provided you are in receipt of United Kingdom State Pension … when your wife reaches her entitlement date, she will be able to make a claim for UK state pension based on your contributions” (14 December 2010).
The Department’s decision on the Appellant’s state pension claim
13. On 8 January 2016 the Appellant made an advance claim for a state pension. On 8 February 2016 the decision-maker concluded the Appellant was entitled to a state pension of £155.65 a week payable from 21 April 2016. On 4 March 2016 the Appellant wrote challenging the decision on two grounds. The first, a ground which has not since been pursued, related to the absence of any graduated retirement benefit in the pension calculation. The second, which has become Ground 2 in these proceedings, was that there was no mention in the decision of any retirement pension for LK. The Department reviewed its decision but did not make any change. The mandatory reconsideration notice of 28 April 2016 explained how the Appellant’s new state pension had been calculated and added:
“Also under Schedule 12 part 2 para. 57 to 60 of the Pensions Act 2014 a married woman will only be entitle to Cat B Retirement Pension if the married woman and her spouse reached minimum pension age before 6 April 2016.
In any event LK does not reach minimum pension age until age 66; currently she is 61. Therefore this issue cannot be decided upon by HM Courts and Tribunal Service. LK will need to reach minimum pension age, submit a claim to Cat B Retirement Pension and receive a formal decision before she can submit an appeal.”
14. I simply make the observation that HM Courts and Tribunals Service (HMCTS) does not decide issues of entitlement to social security benefits on appeal from decisions of the Department. HMCTS is simply the operational or administrative arm of the Ministry of Justice that supports the First-tier Tribunal. So it is the Tribunal, an independent judicial body, and not HMCTS that decides such issues.
The Appellant’s appeal to the First-tier Tribunal
15. The Appellant appealed to the First-tier Tribunal. His main ground of appeal was framed as follows:
“It is suggested that the complete elimination of a Category B pension payable to the spouse of a NI contributor where that pension was based on my national insurance contributions, without the introduction of any transitional rules to protect my wife, myself and my family situation is unlawful.”
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16. The Appellant further developed his arguments on this ground of appeal as follows:
“The national insurance contributions that I paid over many years contained two elements, namely:
• a Category A pension for myself
• a Category B pension for my spouse
However, legislation in the Pensions Act 2014, virtually overnight, has completely eliminated the Category B pension. I am not contending that the UK Government does not have a right to eliminate a pension if it decides to do so. However, the elimination of a pension must be done in a lawful manner. It is my contention that the manner in which the UK Government eliminated the Category B pension in situations that involved myself and my family and as it pertained to my own family is unlawful. Category B pensions concern family situations and fall to be considered within the ambit of Article 8 – Right to family life of the ECHR and HRA 1998. Please refer to the case of AY v Secretary of State for Work and Pensions (RP) [2011] UKUT 324 (AAC).
I was provided with written assurance from the DWP that we would receive a Category B Pension, after I had fully paid my national insurance up to 100%. I also changed my position financially in life by accepting a lower amount of superannuation based on the expectation of my family receiving a Category B pension. My family and I are now affected detrimentally as a result of the elimination of the Category B pension without putting in place transitional rules to make provision for those families and individuals who were relatively close to receiving a Category B pension. I believe the actions of the UK Government were disproportional and as such resulted in a breach of:
• Article 1 of Protocol 1 ECHR and HRA 1998
• Article 1 of Protocol No.1 ECHR in conjunction with Article 14 ECHR
and HRA 1998
• Article 8 ECHR and HRA 1998
• Article 8 ECHR in conjunction with Art 14 ECHR and HRA 1998.”
17. At this stage I make the observation that, actuarially speaking, there is no direct connection between national insurance contributions made and national insurance benefits received. The National Insurance Fund operates on a ‘pay as you go’ basis such that the benefits payable at any given time are financed by current, and not by historic or individualised, contributions. As the Appellant acknowledges, the terms of entitlement to benefit are defined by legislation.
The First-tier Tribunal’s decision
18. On 28 February 2017 the Tribunal, following an oral hearing, dismissed the Appellant’s appeal and confirmed the Secretary of State’s decision dated 8 February 2016. In its corrected Decision Notice, the Tribunal explained its reasoning in summary in these terms:
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“The appellant is entitled to retirement pension of £155.65 per week from 21 April 2016. This is because the appellant attained pensionable age on that date and his entitlement is governed by the new rules set out in the Pensions Act 2014.
The said entitlement is a higher amount than that to which he would have been entitled under the former statutory regime even if with the addition of acquired graduated benefits. The 2014 regime does not permit the addition of any acquired graduated retirement benefits.
The appellant however had abandoned this aspect of his appeal in any event.
The appellant also wished his wife to be added as a party to this appeal on the basis that she would not be entitled to a category B pension to which the appellant had contributed. This was the only ground of appeal before the tribunal at today’s hearing. However the decision under appeal makes no reference to the entitlement or otherwise, potential or real, to any entitlement of the appellant’s wife to a category B pension. In any event the 2014 statutory regime does not encompass any entitlement to a category B pension under any circumstances. However the appellant’s wife is not of pensionable age but if she were to make a claim upon reaching pensionable age it is difficult to see how such claim could succeed in light of the provisions of the 2014 statutory regime.
A Tribunal on 27.10.16 had directed, in any event, that the appellant’s application to have his wife joined as a party to these proceedings was refused, together with the appellant’s application to have the question of a category B pension referred to the European Court of Justice.
The decision under appeal solely concerned the appellant’s entitlement to retirement pension and the appellant’s appeal against the entitlement referred to in that decision was abandoned by the appellant.”
19. The Tribunal then issued a full statement of reasons; however, the essence of the Tribunal’s decision and its reasoning is more than adequately captured by the summary on the Decision Notice.
The proceedings before the Upper Tribunal
20. I subsequently gave the Appellant permission to appeal to the Upper Tribunal. The first ground on which permission was given was the procedural ground relating to rule 27(1) of the SEC Procedure Rules. In summary, it was argued that the Tribunal had acted unfairly and/or failed to give adequate reasons for proceeding with an oral hearing in breach of the equality of arms principle. The second ground related to the abolition of the Category B retirement pension by the Pensions Act 2014 and its impact on the Appellant (and on LK) in this case.
21. Mr Kevin McClure, who now acts for the Secretary of State in these proceedings before the Upper Tribunal, supports this appeal on the first of those grounds, albeit only to a narrow extent. I deal with each of the two grounds of appeal in turn. To start with, the procedural ground of appeal relating to rule 27(1) can only properly be understood against the sequence of events that led up to the Tribunal’s oral hearing on 28 February 2017.
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Ground 1 – rule 27(1) of the SEC Procedure Rules and Article 6(1) ECHR
Ground 1: the sequence of events
22. On 26 May 2016 the Appellant filed his notice of appeal against the Department’s decision on his claim to retirement pension. In answer to the question “About your choice of hearing” he ticked the box for “I want my appeal decided on the papers”. He repeated that request in his covering letter.
23. On 6 July 2016 the Department filed its written response to the appeal. On the accompanying AT38 proforma (‘Notification of response’) the Appeals Officer ticked the ‘Yes’ box in response to the question “Does the Appeals officer request an Oral hearing even if the appellant chooses a paper?”.
24. On 12 July 2016 HMCTS wrote to the Appellant advising him that “your appeal will proceed as a Oral hearing” (spelling and emphasis as in the original).
25. On 13 August 2016 the Appellant made an application that his appeal be conducted “on the papers”. He pointed out that the underlying facts of the case were not in dispute and the issues raised were purely ones of law. He claimed that as he could not attend a hearing he would be unable to respond to any arguments advanced by the Respondent at such a hearing. He further argued that in any event there should not be an automatic right to an oral hearing for the party requesting such a hearing. In particular, he contended that rule 27(1) conferred such a right on the Respondent, irrespective of his own representations. This outcome, he argued, deprived him of procedural fairness and equality of arms within the meaning of Article 6(1) of the ECHR. He cited a number of authorities from the Strasbourg court in support of his detailed submissions.
26. On 1 September 2016 a Tribunal clerk telephoned the Department, recording on the file that “they are happy for it to be heard as a paper case if the appellant is not attending”.
27. On 15 September 2016 the District Tribunal Judge (DTJ) noted his understanding, which was that (a) the Appellant objected to an oral hearing and (b) the Department only wanted a hearing if it could be arranged via video-link. He instructed the clerk to see if the Department did still want a hearing and if so to arrange a video-link hearing with the Appellant to attend by telephone. If the Department no longer wanted a hearing, he directed the case was to be listed before a DTJ as a paper case.
28. On 23 September 2016 the Department’s Appeals Officer replied to the effect that “If a hearing is still to go ahead then a video link would be preferred”.
29. On 16 October 2016 the Appellant repeated his application for the case to be dealt with on the papers. He stated that that a telephone hearing was “not a consideration for me” as the combination of his working full-time and the time difference between the United Kingdom and the west coast of Canada (8 hours) meant a telephone hearing was “simply not practical”.
30. On 21 October 2016 a clerk referred the matter back to a Judge, reporting that “I have rung the DWP again to make sure they still want an oral hearing, they said they do.” She added that it was not logistically practicable to have a video-link for one party combined with a telephone hearing for the other; in such situations a three-way conference call was all that could be offered.
31. On 27 October 2016 the District Tribunal Judge ruled as follows:
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“(1) …. If a party requests a hearing the tribunal has no power to deny that request. There will, therefore, be a hearing. The Appellant has been offered the opportunity to attend via telephone but has declined that offer. His position will be respected.”
32. On 13 November 2016 the Appellant made an application by e-mail to have Direction 1 of 27 October 2016 amended, suspended or set aside.
33. On 17 November 2016 a District Tribunal Judge ruled on that application. It is unclear whether that ruling was ever sent to, or even notified to, the Appellant. The appeal file itself includes no copy of that ruling. However, the Tribunal office’s backup administrative file includes a copy in these terms:
(1) The tribunal gives all parties an opportunity to attend an oral hearing.
(2) If one party wishes to attend an oral hearing this will be arranged.
(3) The other party will be invited to attend.
(4) The Department for Work and Pensions have stated they wish to have an
oral hearing, therefore, an oral hearing will be arranged.
34. I assume for present purposes this ruling was not copied to the Appellant. It has only now come to light. I considered whether I should invite his comments. I have decided not, as the ruling in effect simply repeats points already made in other interlocutory rulings. In any event I place no reliance on this particular ruling but include it simply for completeness in terms of the narrative.
35. On 28 February 2017 the Tribunal held an oral hearing of the appeal. The District Tribunal Judge’s record of proceedings noted by way of introduction that the “PO appeared by video link. A [Appellant] has declined the opportunity of a telephone hearing. Appeal proceeded”.
36. So, in short, the Appellant was consistent throughout. He was adamant that he wanted his appeal to be decided on the papers. He objected to the view that the Department had, in effect, an automatic right to an oral hearing. The Department, meanwhile, appeared to be sending mixed messages. At times it stated it wanted an oral hearing (see paragraphs 23 and 30). At other times its response was more ambiguous (see paragraphs 26 and 28). However, its last known position was that it wanted an oral hearing (see paragraph 30 above).
Ground 1: the First-tier Tribunal’s decision
37. In its statement of reasons (expanding slightly on the explanation given on the Decision Notice) the Tribunal dealt with the procedural point as follows:
“The Appellant, who lives in Canada, did not attend the hearing in person and declined the offer to participate in the hearing by way of a telephone link. The appeal was listed as an oral hearing (rather than an appeal to be determined on the papers) as an oral hearing had been requested by the Respondent. A Presenting Officer for the Respondent appeared via video link and made oral submissions. The Appellant had sought a direction from the Tribunal that his appeal be determined on the papers. However, in an interlocutory decision made on 27.20.2016, this application was refused since a party to the appeal, the Respondent, had requested an oral hearing. The requirements of a fair hearing, as envisaged in the European Convention on Human Rights (‘ECHR’), as transmuted into domestic UK law by the Human Rights Act 1998, was not offended by this decision.”
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Ground 1: the legislative framework
38. The starting point is of course the ECHR. Article 6(1), dealing with the right to a fair trial, provides as follows:
“(1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”
39. Rule 1(3) of the SEC Procedure Rules provides that “‘hearing’ means an oral hearing and includes a hearing conducted in whole or in part by video link, telephone or other means of instantaneous two-way electronic communication”. Rule 2(1) enshrines the overriding objective of the SEC Procedure Rules as being “to enable the Tribunal to deal with cases fairly and justly”. In that context rule 2(2) further provides that:
“(2) Dealing with a case fairly and justly includes—
(a) dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties;
(b) avoiding unnecessary formality and seeking flexibility in the proceedings;
(c) ensuring, so far as practicable, that the parties are able to participate fully in the proceedings;
(d) using any special expertise of the Tribunal effectively; and
(e) avoiding delay, so far as compatible with proper consideration of the issues.”
40. Rule 2(4) stipulates that the parties must “help the Tribunal to further the overriding objective” and “co-operate with the Tribunal generally”.
41. Rule 27(1) along with rules 28 and 31 are also all in point:
Decision with or without a hearing
27.—(1) Subject to the following paragraphs, the Tribunal must hold a hearing before making a decision which disposes of proceedings unless—
(a) each party has consented to, or has not objected to, the matter being
decided without a hearing; and
(b) the Tribunal considers that it is able to decide the matter without a hearing.
Entitlement to attend a hearing
28. Subject to rule 30(5) (exclusion of a person from a hearing), each party to proceedings is entitled to attend a hearing.
Hearings in a party’s absence
31. If a party fails to attend a hearing the Tribunal may proceed with the hearing if the Tribunal—
(a) is satisfied that the party has been notified of the hearing or that reasonable steps have been taken to notify the party of the hearing; and
(b) considers that it is in the interests of justice to proceed with the hearing.
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Ground 1: the Secretary of State’s submissions
42. Mr McClure has made a written submission on behalf of the Secretary of State. He argues that the tribunal system itself, with its inquisitorial ethos and methods, means that the application of the equality of arms principle under Article 6(1) of the ECHR is likely to be necessary at best only in marginal cases. Mr McClure adds that he has been unable to identify any Strasbourg court case law that has permitted the restriction of a party’s legitimate right of access to a hearing so as to match a parallel restriction chosen by the other party. He submits that in this case the Tribunal was correct to direct an oral hearing. However, he also contends that the Tribunal should have adjourned until further efforts had been made to arrange a convenient time for both parties to participate in a telephone hearing. On that basis, and on that basis only, Mr McClure supports the Appellant’s appeal.
Ground 1: the Upper Tribunal’s analysis
43. The Appellant’s own submissions on this appeal are far more detailed and extensive than those of Mr McClure. They were first set out in his application of 13 August 2016 and have been elaborated upon since in further applications and also in written submissions both to the Tribunal below and to the Upper Tribunal. I deal with each of the Appellant’s principal arguments in turn.
44. The Appellant’s main submission is that rule 27(1), the effect of which is to permit the Respondent the automatic right to an oral hearing, without further consideration and/or the exercise of any discretion by the Tribunal, is contrary to Article 6(1) of the ECHR. The contravention, in the Appellant’s submission, is because rule 27(1) deprives him of procedural fairness and equality of arms. The right to a fair trial must mean that “a litigant is not denied the opportunity to present his or her case effectively before the court” (Steel and Morris v United Kingdom, Application No.68416/01 (2005) 41 EHRR 403 at paragraph 59). Moreover, the test for equality of arms “requires each party to be given a reasonable opportunity to present his or her case under conditions that do not place the litigant at a substantial disadvantage vis-à-vis the opponent” (Švenčionienė v Lithuania, Application No.37259/04, at paragraph 23).
45. The Appellant’s position is that there is an inherent unfairness in the Tribunal proceedings in that, whether the hearing took place in person, by video link or by telephone, he is a lay person up against the armoury of the State with all its experience, expertise and ready access to legal resources. Thus, the Appellant, who in any event was unable to attend a hearing and so unable to respond to arguments made at the hearing by the Department’s representative, was placed at an immediate disadvantage by rule 27(1) when compared to the Respondent. The solution, the Appellant submits, is to read rule 27(1) as if it stood without sub-paragraph (a) (“each party has consented to, or has not objected to, the matter being decided without a hearing”). So, in a case in which one party asked for an oral hearing and the other has not, then the SEC Procedure Rules would only be ECHR-compliant if the Tribunal was vested with a discretion as to whether either to hold an oral hearing or alternatively to determine the case ‘on the papers’.
46. There are a number of difficulties with this submission. Most obviously, the fundamental point, as the ECtHR held in Göç v Turkey, Application no.36590/97, (2002) 35 EHRR 134 (at paragraph 47), is as follows:
“According to the Court's established case-law, in proceedings before a court of first and only instance the right to a ‘public hearing’ in the sense of Article 6 § 1 entails an entitlement to an ‘oral hearing’ unless there are exceptional circumstances that justify dispensing with such a hearing …”
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47. The ECHR general or default rule, accordingly, is for a public oral hearing in first instance proceedings. The rule of law itself is reflected in the principle of open justice – indeed, the maintenance of public confidence in the administration of justice necessitates a fundamental guarantee of a citizen’s right to such a public oral hearing. Granting a first instance tribunal an unbridled discretion, having considered both parties’ representations, to determine whether or not to hold an oral hearing would be wholly inconsistent with the Strasbourg jurisprudence’s emphasis on the need for “exceptional circumstances” to justify a departure from that norm of public oral hearings. I have no doubt but that the Appellant genuinely believes that his interests were best served by having a paper hearing. However, there will be very many claimants who would be rightly alarmed at the prospect that they had no guaranteed right to an oral hearing, but rather that their ‘day in court’ was purely at the discretion of a Tribunal Judge.
48. The Appellant cites several examples of Strasbourg case law in support of his submissions. However, on closer examination none of them goes so far as he suggests or stands as authority for the proposition that rule 27(1) involves a contravention of Article 6(1) ECHR. In particular, the authorities demonstrate that the assessment of whether there is true equality of arms, and whether or not an applicant is put “at a substantial disadvantage vis-à-vis the opponent”, is necessarily factsensitive.
49. For example, the circumstances of Steel and Morris v UK were, on any reckoning, quite exceptional - the applicants, in the absence of legal aid provision for defendants in defamation proceedings, had to represent themselves in a 313-day High Court trial with 40,000 pages of documentary evidence, whilst McDonalds was represented by a large and highly experienced and expert legal team. The ECtHR concluded in that case that the inequality of arms which had arisen was not remedied by the combination of the applicants’ articulacy and the limited pro bono assistance they received along with the extensive judicial assistance provided during the course of the hearing (at paragraphs 68 and 69). Steel and Morris v UK is thus far removed from the typical Tribunal appeal about entitlement to a social security benefit. Such hearings last typically no more than an hour, are often shorter still, and are before an inquisitorial tribunal which actively seeks to test both sides’ cases. In particular, tribunals in the Social Entitlement Chamber have a long tradition of exploring points that an unrepresented claimant might not appreciate to be relevant but which might assist their case.
50. The Appellant also relies on Švenčionienė v Lithuania; however, this was a case in which notice of the hearing had been sent by the court administration to the wrong address for the applicant. The Strasbourg court’s finding that there had been an infringement of the applicant’s right to equality of arms has to be seen in that particular context. As the ECtHR held (at paragraph 25):
“the right to equality of arms would be devoid of substance if a party to the case were not apprised of the hearing in such a way as to have an opportunity to attend it, should he or she decide to exercise the rights established by domestic law, while the other party had effectively exercised such rights.”
51. Again, that scenario is a long way removed from the circumstances of the present case. Furthermore Fretté v France, Application no.36515/97, (2002) 38 EHRR 438; (2003) 2 FLR 9, also relied on by the Appellant, is another case in which the court administration failed to notify the applicant of the hearing. With respect, the finding of a breach of the right to a fair trial under Article 6(1) was inevitable in those circumstances. The Appellant further cites Dombo Beheer BV v The Netherlands,
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Application no.14448/88, (1993) 18 EHRR 213. This is undoubtedly authority for the proposition that “each party shall have a reasonable opportunity of presenting his case to the Court under conditions which do not place him at a substantial disadvantage vis-à-vis his opponent” (at paragraph 35). However, it remains the case that what is a “reasonable opportunity” and what is a “substantial disadvantage” requires a context-specific evaluation of the proceedings in question.
52. I am not persuaded that the imbalance of power in the Tribunal setting is such that there is necessarily an inequality of arms for the purposes of Article 6(1) ECHR. I do not doubt that in general terms the State may start with an institutional advantage in many types of tribunal proceedings. Using Galanter’s typology, the Department’s presenting officer is typically a ‘repeat player’, whereas the individual appellant is usually a ‘one shotter’ (M. Galanter, ‘Why the “Haves” Come Out Ahead; Speculations on the Limits to Legal Change’ (1974) 9 Law and Society Review 95). Empirical research has also shown the very real difficulties that many unrepresented appellants face in tribunal proceedings (see notably H. Genn et al, Tribunals for Diverse Users, DCA Research Series 1/06, January 2006).
53. However, the working out of the principle of equality of arms means that one must consider both the general and the particular context. At the general level, the Tribunal’s inquisitorial ethos and enabling role, already noted, has been specifically developed to act as a counterweight to the State’s institutional advantage. At the level of the particular, there is simply no evidence in this case that the Appellant was put at any material disadvantage whatsoever. The Tribunal’s record of proceedings shows that the hearing lasted for approximately 15 minutes. There is no suggestion that the Department’s representative made any new points at the oral hearing. Rather, the record of proceedings simply notes the presenting officer’s submission as being as follows:
PO: Only matter still before Tribunal was, it seemed, the Appellant’s request to have his wife joined as a party and the question of the Cat B pension, he having abandoned the [appeal against the] decision of the Dept concerning the Appellant’s own ent. [entitlement] to SRP from 21.04.16 omitting any addition for graduated pension. The Appellant, by reason of the decision was entitled to greater pension than that to which he would have been entitled – even if graduated pension had been added. The decision under appeal did not include any decision concerning the Appellant’s wife: she was not of pensionable age. If, however, she were to make acclaim when she reached pensionable age, the law no longer provided for ent. to a Cat B pension.
54. This submission was no more than a resumé of the Department’s much more extensive written response on the Appellant’s appeal. The reality was that this was a case which, although it led to an oral hearing, was effectively decided on the basis of the parties’ detailed written submissions – as in fact the Appellant had wanted.
55. In his further arguments in his reply to the Secretary of State’s response, the Appellant seeks to place weight on the decision of the United States Supreme Court in Mathews v Eldridge 424 US 319 (1976). He argues that applying the three factors identified by the Supreme Court in that case – the nature of the private interest affected, the risk of error and the State’s interest in minimizing costs – leads to the conclusion that a hearing on the papers is preferable to an oral hearing. This argument is unpersuasive. Mathews v Eldridge was decided against a very different constitutional backdrop – the issue there was one of due process, as that term is understood in US administrative law. The particular issue in that case was whether a social security claimant was entitled to a pre-termination hearing before the agency
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cancelled his entitlement to benefits and when he had not exhausted his administrative remedies. The US Supreme Court held that in those circumstances a pre-termination hearing was not required under due process principles. The situation here is very different – the Appellant has a decision from the Department he wishes to appeal and the presumption – in both ECHR jurisprudence and in domestic law – is that such an appeal is heard by way of an oral hearing.
56. Finally, the Appellant points to the contrast between rule 27(1) of the SEC Procedure Rules and rule 34 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698). Rule 34(1) (entitled “Decision with or without a hearing”) expressly stipulates that (subject to certain exceptions, which are immaterial for present purposes) “the Upper Tribunal may make any decision without a hearing”. Subject again to those immaterial exceptions, the only constraint is that the Upper Tribunal “must have regard to any view expressed by a party when deciding whether to hold a hearing”. The Appellant argues that rule 34 is ECHR-compliant and that rule 27 of the SEC Procedure Rules should likewise vest the Tribunal with a discretion as to the format of the hearing. The Appellant’s submission is misconceived. The reason why rule 34(1) is ECHR-compliant is that the Convention does not require an appellate body such as the Upper Tribunal to hold an oral hearing where there has been an opportunity to have an oral hearing before the First-tier Tribunal (see Hoppe v Germany, Application No.28422/95, (2002) 38 EHRR 285; [2003] 1 FLR 384 at paragraphs 61-65).
57. For all the above reasons I reject the Appellant’s primary submission that rule 27(1) of the SEC Procedure Rules involves a breach of Article 6(1) ECHR on the basis that it fails to ensure equality of arms.
58. Turning to the specifics of the case, the fact remains that Mr McClure supports the Appellant’s appeal on a different procedural point relating to the fair hearing requirement. On a proper analysis two questions need to be addressed in this context. First, was the Tribunal right to direct an oral hearing? Secondly, and assuming it was, was it right to proceed on the day? Mr McClure’s (brief) submission is that the answer to the first question was in the affirmative but the answer to the second question was negative.
59. As to the first question, I agree that the Tribunal was entitled to direct an oral hearing. The Appellant had made his position absolutely clear. As noted above, the Department’s position had vacillated but its last known position was that it was requesting an oral hearing. On that basis, given rule 27(1)(a), the Tribunal was not only entitled but bound to direct an oral hearing.
60. As to the second question, the Tribunal was required to apply rule 31 (see paragraph 41 above). There has been no suggestion that the Appellant was not notified of the hearing. The question then was whether the Tribunal considered that it was “in the interests of justice to proceed with the hearing” within rule 31(b). It is true that the Tribunal did not in express terms refer to rule 31. However, it is clear from its reasons, as stated in both the Decision Notice and the statement of reasons, that it took into account all relevant considerations, notably that the Appellant had declined the offer of a telephone hearing and that the Tribunal had detailed written submissions from both parties, canvassing all relevant issues.
61. I acknowledge, however, that Mr McClure supports the appeal. He argues that the Tribunal “should have adjourned the hearing itself until efforts had been made to arrange a convenient time for all parties to take part in a telephone hearing” (Secretary of State’s response dated 22 September 2017 at §12). In my view, with
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respect, this represents an unrealistic counsel of perfection. There had plainly been a series of communications between the Appellant and the Tribunal administration, both in writing and by telephone, over some months. The Appellant had made it plain that he did not wish to have an oral hearing at any time and in whatever medium. I regret to say his arguments about the impracticality of a telephone hearing are not persuasive. As I noted when giving permission to appeal, in other cases I have held a telephone hearing with an unrepresented appellant in Brisbane and another long hearing, relying on a mobile phone connection, with a veteran living in Mexico. As Mr McClure rightly observes, appellants living in the United Kingdom may well need to take time off work to attend a hearing so as to prosecute their appeals. The Appellant showed no sign of being accommodating in this regard. Another Tribunal might have adjourned for another attempt to set up a telephone hearing. However, that does not mean the present Tribunal erred in law. In my assessment the Tribunal was entitled to proceed with the oral hearing under rule 31.
Ground 1: conclusion
62. It follows my conclusion is that the procedural ground of appeal, however it is put, does not succeed.
Ground 2
Ground 2: the legislative framework
63. It will be recalled that the Appellant made his own claim for state pension in January 2016, in advance of his 65th birthday on 21 April 2016, which date fell after the Pensions Act 2014 came into force. Under the previous regime the two main types of retirement pension were a Category A pension, based on the claimant’s own contributions record, and a Category B pension, based on the record of a spouse or civil partner, whether alive or deceased. Whichever category of pension was claimed, attaining pension age was a condition of entitlement. Thus, as at the date of claim, section 48A(1) and (2) of the Social Security Contributions and Benefits Act 1992 (as amended by the Pensions Act 2007) provided as follows:
“48A.— Category B retirement pension for married person
(1) A person who—
(a) has attained pensionable age, and
(b) on attaining that age was a married person or marries after attaining that age,
shall be entitled to a Category B retirement pension by virtue of the contributions of the other party to the marriage (“the spouse”) if the following requirement is met.
(2) The requirement is that the spouse—
(a) has attained pensionable age [...], and
(b) satisfies the relevant conditions or condition.”
64. I call this “the pre-April 2016 section 48A”. The expression “the relevant conditions or condition” was defined by section 48A(2ZA), but need not detain us here. However, as from 6 April 2016, the new section 48A(1) and (2) (or “the postApril 2016 section 48A”), as inserted by section 23 of, and paragraph 60 of Part 2 of Schedule 12 to, the Pensions Act 2014, provided as follows:
“48A.— Category B retirement pension for married person or civil partner
(1) A married person is entitled to a Category B retirement pension by virtue of the contributions of his or her spouse if—
(a) the person attained pensionable age before 6 April 2016, and
(b) the spouse—
(i) has attained pensionable age, and
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CP/1710/2017 14
(ii) satisfies the relevant contribution condition.
(2) But subsection (1) does not confer a right to a Category B retirement pension on—
(a) a man whose spouse was born before 6 April 1950, or
(b) a woman whose wife was born before 6 April 1950.”
65. The problem for the Appellant’s wife LK is stark. On the face of the legislation she did not qualify for a Category B retirement pension at the date of the Appellant’s claim as she had not attained pensionable age, as required by subsection (1)(a) of the pre-April 2016 section 48A. Furthermore, at the time the Appellant attained pensionable age, some three months later, she could not qualify for a Category B retirement pension either but this time because she had not attained pensionable age before 6 April 2016, as required by subsection (1)(a) of the post-April 2016 section 48A. Truly, this would seem to be a statutory Catch-22.
Ground 2: the Appellant’s submissions
66. The gist of the Appellant’s submissions on Ground 2 is set out above at paragraphs 15 and 16. That summary can only give a flavour of the detailed and carefully researched arguments that he mounts, based on both ECHR and EU case law. However, for reasons that will become evident I conclude that I do not need to address those more detailed submissions (for example as regards the alleged discrimination involved).
Ground 2: the Secretary of State’s submissions
67. Mr McClure’s submissions are short and to the point. His primary argument is that there was no decision under appeal to the Tribunal in respect of LK’s entitlement to a Category B pension based on the Appellant’s national insurance contributions. There was, therefore, no basis for any appeal. Mr McClure further observes that while the Appellant seeks to rely on principles drawn from ECHR and EU jurisprudence to support his argument that LK should benefit from transitional protection, he does not explain for what period, or on what conditions, such transitional rules should apply. According to Mr McClure, “the Appellant does not make any case for the addition of ‘transitional protection’ to the relevant provisions of the Act, but rather for those provisions to be frozen until his wife has been awarded Category B Pension on the basis of legislation that, in fact, no longer exists” (Secretary of State’s response dated 22 September 2017 at §18).
Ground 2: the Upper Tribunal’s analysis
Introduction
68. A logically prior question to the Appellant’s sustained challenge to the abolition of the Category B pension for individuals in the position of LK is whether there is in fact an entitlement decision in respect of that benefit. It is for the Tribunal to determine whether it has jurisdiction to hear a case (see the Tribunal of Social Security Commissioners’ decision R(I) 7/94 at paragraph 27). The Appellant seeks to argue that both he and LK each have the right of appeal.
69. In the first instance it is for the Secretary of State “to decide any claim for a relevant benefit”, which includes any claim for a retirement pension (Social Security Act 1998, section 8(1)(a) and 8(3)(a)). Section 12(1)(a) then provides for a right of appeal to the Tribunal against any decision made by the Secretary of State under section 8 “on a claim for, or on an award of, a relevant benefit”. That right of appeal vests in “the claimant and such other person as may be prescribed” (Social Security Act 1998, section 12(2)”. For these purposes a “claimant” is “a person who has claimed benefit” and includes “in relation to an award or decision a beneficiary under
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CP/1710/2017 15
the award or affected by the decision” (Social Security Administration Act 1992, section 191, applied by Social Security Act 1998, section 39(2)).
The Appellant’s position
70. The Appellant was obviously a claimant under the definitions cited above. He therefore had the right of appeal to the Tribunal. But what had he claimed and what did the Secretary of State decide? Rather unsatisfactorily, the original claim form was not included in the appeal papers before the Tribunal. The only record was a screen print showing that a “MAIN (RP)” claim had been made on 8 January 2016. A claim for a state pension can be made up to four months in advance (Social Security (Claims and Payments) Regulations 1987 (SI 1987/1968), regulation 15(1)). Given the date of the Appellant’s 65th birthday and the impending abolition of the Category A pension, his claim had to be a claim for a new state pension under the Pensions Act 2014. I accept the Appellant’s argument that he also included details of his wife on (or with) that claim form. However, the Department’s decision letter (dated 8 February 2016) referred to “your claim to a UK State Pension”, reported that it was payable “at the full amount” (£155.65 a week) and was a “new State pension … for people who reached State Pension age on or after 6 April 2016”.
71. So the Appellant had plainly made a claim for, and received a decision about, his entitlement to the new-style state pension under the Pensions Act 2014. But had he made a claim for, and received a decision about, LK’s entitlement to a Category B pension? In the Appellant’s request for a mandatory reconsideration (dated 4 March 2016) he wrote:
“… in the decision letter there is no mention of a UK retirement pension in respect of my wife, LK. In my application for a retirement pension I included details about my wife. LK is presently 61 years old and included in this decision I would like to know her particular situation in respect of her entitlement to a UK retirement pension at the relevant age. The UK National Insurance contributions were paid towards a UK retirement pension for both myself and my wife.”
72. The Appellant’s contention is that the determination he received from the Department included two further decisions appealable under section 12 of the Social Security Act 1998, namely the decisions (i) to ‘eliminate’ his national insurance contributions for the purpose of subsequent potential spousal or family benefits and (ii) to refuse LK a Category B retirement pension. This argument cannot stand with the facts. The original claim was fundamentally his claim for a state pension. Whatever the precise terms of the claim as made, the decision notified on 8 February 2016 was undoubtedly confined to his entitlement to a new Pensions Act 2014 state pension. The Appellant places great reliance on the references in the mandatory reconsideration notice to the provisions implementing the post-April 2016 section 48A as evidence that an appealable decision on Category B entitlement was made. However, the appeals officer was not making any decision on a Category B claim there – rather she was responding to the query raised by the Appellant in his mandatory reconsideration request. In any event, any argument about LK’s entitlement to a Category B retirement pension was entirely contingent and indeed hypothetical at that stage as the Appellant’s wife had yet to attain pension age (and will not do so until 2021).
73. It follows that I do not accept that there is any decision relating to Category B entitlement (or indeed as to the treatment of the Appellant’s national insurance contributions) that the Appellant can challenge before the Tribunal in the present proceedings.
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74. Is LK in any better position? The formal position is that she is not and never has been a party to these proceedings. The Appellant has made a number of applications with a view to having LK joined in the proceedings. The Tribunal rejected such an application on 27 October 2016 on the basis that joinder was not “necessary”. The Tribunal’s reasoning is undoubtedly sparse, but there is no statutory requirement to provide reasons for interlocutory rulings and such reasons as are given may well be concise (see rule 34 of the SEC procedural rules and KP v Hertfordshire County Council (SEN) [2010] UKUT 233 (AAC) at paragraph 28). The Tribunal’s decision to refuse joinder was clearly right given (a) there had been no decision on Category B entitlement; and (b) LK was not a “claimant” or “such other person as may be prescribed” within the meaning of section 12(2) of the Social Security Act 1998. The Appellant also argues that LK has standing as she “is, or would be, a victim of that [unlawful] act” within the meaning of section 7(3) of the Human Rights Act 1998. However, that only applies in the context of proceedings for judicial review.
75. It follows that LK is in no better position than the Appellant as she is not a party to these proceedings and in any event is also not a claimant who has an appealable decision for the purposes of section 12 of the Social Security Act 1998.
76. I recognise the Appellant has set out detailed and carefully researched objections to the Government’s decision, subsequently endorsed by Parliament, to abolish the Category B retirement pension. However, his own claim for a state pension is not an appropriate juristic vehicle by which to pursue those objections. Of course, in principle LK can make her own claim for a Category B pension in 2021 when she attains pension age. However, barring any radical change in the law, any such claim would appear to be doomed to fail on the basis of the post-April 2016 section 48A statutory criteria. Meantime the only avenue theoretically (if unrealistically) open to LK is to seek to bring proceedings for judicial review (and, of course, the Upper Tribunal lacks the power to make a declaration of incompatibility under the Human Rights Act 1998).
77. I also recognise that the Appellant has over the years received information from Departmental officials about LK’s prospective pension entitlement based on his contributions. I just make two observations in that regard. The first is that those officials’ replies were accurate at the time they were made. The second is that while the Appellant may well have taken those replies as assurances, the case law shows that there are “numerous authorities holding similarly that estoppel cannot prevent a statutory duty from being carried out: see R(CS)2/97, R(P)1/80, R(SB)1/83, R(SB) 4/91 and R(JSA)4/04” (PS v Secretary of State for Work and Pensions and LM (CSM) [2016] UKUT 437 (AAC) at paragraph 58).
Ground 2: conclusion
78. Accordingly I find that Ground 2 is not made out.
Overall conclusion
79. The decision of the First-tier Tribunal does not involve any material error of law. I therefore dismiss the appeal (Tribunals, Courts and Enforcement Act 2007, section 11).
Signed on the original Nicholas Wikeley
on 25 April 2018 Judge of the Upper Tribunal
GT v Secretary of State for Defence [2016] UKUT 0309 (AAC)
GT v Secretary of State for Defence (WP)
[2016] UKUT 0309 (AAC)
CAF/2582/2015 1
IN THE UPPER TRIBUNAL Upper Tribunal case No. CAF/2582/2015
ADMINISTRATIVE APPEALS CHAMBER
Before: E Mitchell, Judge of the Upper Tribunal
Decision: The appeal is allowed. The decision of the First-tier Tribunal (9th April 2015, Firsttier file reference SD/00032/2015) involved the making of an error on a point of law. It is SET
ASIDE under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007
and the case is REMITTED to the First-tier Tribunal for rehearing. Directions for the
rehearing are at the end of this decision.
Ms Galina Ward, of counsel, represented the Secretary of State.
Mr T was unrepresented.
REASONS FOR DECISION
Introduction
1. This appeals concerns unemployability allowance (UA). In the Upper Tribunal, at any rate,
this is a rarely encountered part of the Naval, Military and Air Forces etc (Disablement and
Death) Service Pensions Order 2006 (S.I. 2006/606) (“the 2006 Order”).
2. The 2006 Order provides for a person to be treated as unemployable despite being “in
receipt” of therapeutic earnings. This appeal raises the issue whether this type of work is to be
disregarded in determining unemployability even if a person is not in receipt of therapeutic
earnings. I decide that it is not.
3. The appeal also raises the question whether “unemployable” means permanently
unemployable. I decide it does not. The 2006 Order is simply concerned with whether a person
may fairly be considered unemployable at the date on which a claim for UA is determined.
Factual background
4. Mr T was medically discharged from the Army on 4th November 2013. He was awarded a
War Disablement Pension. For that purpose, the Secretary of State assessed Mr T as 60%
disabled from osteoarthritis of the knees. Mr T’s knee condition was considered to be linked to
high-impact stresses to his knees over a number of years as part of his Army service.
5. In assessing Mr T as 60% disabled the Secretary of State relied on a report of an
examination carried out by a registered medical practitioner on 26th January 2014. The report:
GT v Secretary of State for Defence (WP)
[2016] UKUT 0309 (AAC)
CAF/2582/2015 2
(a) states that Mr T had had three arthroscopies on his right knee and two on the left,
as well as tibial osteotomies performed on both knees;
(b) states that Mr T had had two courses of cortisone injections to his knees;
(c) records Mr T’s opinion that none of these medical procedures had helped him;
(d) records that Mr T had recently been discharged from hospital, on 22nd January
2014, having had surgery on 20th January 2014 to graft bone on the left knee and
remove a metal plate from the right knee;
(e) records Mr T’s statements that he had not driven for two years due to his knee
problems and, after walking 15-20 metres, would need to stop due to pain;
(f) records Mr T’s statement that, since he left the Army on 4th November 2013, he had
not worked due to his knee problems;
(g) expresses the opinion, in the light of the examination, that there were abnormalities
in Mr T’s hip, knee and ankle joints and records reduced range of movement in those
joints. The report also found significant reduction of muscle mass in the left quadriceps
muscles and moderate reduction in the right;
(h) expresses the opinion that Mr T “cannot walk more than a few steps without
stopping or severe discomfort”;
(i) ends with the following summary:
“Severe disability noted due to both knees problem. He recently had operations
on both knees. He uses crutches all the time. Severe disability likely with
walking / standing / using stairs / squatting. His symptoms will improve with
time in 12 months as currently he is recovering from surgery”.
6. The medical evidence also lists the pain relieving medication taken by Mr T,
including Tramadol, Paracetomol, Ibuprofen, Codeine and Amityrptyline.
7. A report from Mr T’s consultant dated 24th January 2014 states that, when Mr T is old
enough, he will need full replacements of both knees. The consultant’s report also states Mr T
has “mood swings and bouts of depression”.
8. On 19th November 2014, a registered medical practitioner advised the Secretary of State
that “although [Mr T] has restricted mobility and agility I feel that he would be able to manage
sedentary, administrative type work”. The doctor also noted that Mr T had worked as an Army
GT v Secretary of State for Defence (WP)
[2016] UKUT 0309 (AAC)
CAF/2582/2015 3
Career Adviser until the point at which he was medically discharged. The Secretary of State
relied on this advice in rejecting Mr T’s claim for UA.
9. On his appeal to the First-tier Tribunal, Mr T argued:
(a) the Secretary of State’s decision was unfair because he had been told he would be
medically examined for the purposes of his UA claim but the examination had not
materialised;
(b) he wanted to work but was in too much pain to do so;
(c) he had not been working as an Army Careers Adviser until the point at which he
was medically discharge from the Army. He had been “off sick”;
(d) the Secretary of State did not take into account his post-discharge surgical
procedures. Moreover, those procedures had not been successful.
10. Following a hearing at which Mr T gave oral evidence, but was unrepresented, the Firsttier Tribunal dismissed his appeal. The Tribunal’s findings of fact included:
(a) Mr T’s surgery “has not proved productive”;
(b) Mr T’s painkillers take the edge off his pain but they make him feel “drowsy with a
fuzzy head” and “unable to make snap decisions”. His medication regime had been
unchanged for 2 to 3 years but the side effects “would not be a permanent effect and
[Mr T] would gradually be able to get used to the side effects of the medication” (even
though Mr T had had the same medication regime for two to three years);
(c) Mr T’s “knee” is frequently locked for 30 seconds at a time;
(d) Mr T mobilises using two crutches although “his mobility was reasonable on the
basis that he managed to mobilise from New Street Station to the hearing today,
admittedly slowly on crutches and with the help of his wife”;
(e) Mr T was “off sick” for the last 18 months of his Army service;
(f) Mr T was “IT literate and has man management organisational and training skills
from his time in the Army”.
11. The Tribunal’s reasons for concluding that Mr T did not meet the criteria for UA were:
“the Tribunal could not accept that Mr [T] was so disabled as to make him
unemployable. Particularly we find that he could undertake works similar to what he
GT v Secretary of State for Defence (WP)
[2016] UKUT 0309 (AAC)
CAF/2582/2015 4
had done before but specifically he could undertake training or lecturing type work, or
work where he would be able to alternate between standing and sitting, such as
possibly stores based work or packing or light assembly work which would allow him
to alternate between standing and sitting. Although he has elected not to drive, the
Tribunal consider that he could certainly drive short distances when he has taken his
medication and again it was the evidence of the Medical Member that the taking of
Tramadol would not result in advice being given to a patient not to drive”.
12. I granted Mr T permission to appeal to the Upper Tribunal on the grounds that arguably
the First-tier Tribunal erred in law by:
(a) making an irrational finding that Mr T’s mobility was “reasonable” since it appeared
also to accept the finding in the 26th January 2014 medical report that Mr T was
severely disabled by his knee condition;
(b) failing to consider the therapeutic earnings rules for UA;
(c) failing to consider whether to make a provisional award in the light of Mr T’s
uncertain prognosis.
Legal Framework
Unemployability allowances (UA)
13. Part II of the 2006 Order provides for various awards in respect of disablement including,
in Article 12, UA.
14. The principal entitlement condition for UA is found in article 12(1):
“where a member of the armed forces is in receipt of retired pay or a pension in respect
of disablement so serious as to make him unemployable, he shall be awarded
unemployability allowances”.
15. Article 12(1) is subject to 12(2)(b), which disapplies article 12(1) where “where the degree
of disablement is assessed at less than 60 per cent” (to recap, Mr T’s disablement had been
assessed at 60%). There will be an existing disablement assessment given article 12(1)’s
requirement for a member to be in receipt of retired pay or a pension.
16. Article 12(4) provides for a statutory fiction in that it permits a person, in certain cases, to
be treated as unemployable even though the person is employed:
“For the purposes of this article…a member may be treated as unemployable although
in receipt of therapeutic earnings which are, in the opinion of the Secretary of State,
unlikely to exceed per year the figure specified in paragraph 5(c) of Part IV of Schedule
1 [currently £5,590]”.
GT v Secretary of State for Defence (WP)
[2016] UKUT 0309 (AAC)
CAF/2582/2015 5
17. The definition of “therapeutic earnings” can easily be overlooked because it is contained in
item 60 of Part II of Schedule 6 to the Order. The definition is:
“earnings from work for no more than 16 hours per week and which in the Secretary of
State's view is not detrimental to the health of the member”.
18. Article 12(6) provides for additional allowances in respect of certain of a member’s
dependants. That is not directly relevant in Mr T’s case but I note that article 12(9) makes the
award of an additional allowance for a child living apart from the claimant entirely within the
discretion of the Secretary of State:
“For the purposes of paragraph (6)(b) and (c), an award, continuance and amount of an
additional allowance under that paragraph in respect of a child who is living apart from
the member shall be at the discretion of the Secretary of State”.
19. Mr T’s assessed disability of 60% is not in issue in these proceedings but I should mention
the assessment rules. They show an assessment does not involve an assessment of the
limitations likely to be faced by the disabled member in the workplace. Article 42(2)(a) enacts
the general rule that
“the degree of the disablement due to service of a member of the armed forces shall be
assessed by making a comparison between the condition of the member as so disabled
and the condition of a normal healthy person of the same age and sex, without taking
into account the earning capacity of the member in his disabled condition in his own or
any other specific trade or occupation, and without taking into account the effect of
any individual factors or extraneous circumstances”.
20. Of itself, therefore, an assessment of disability says nothing about the disabled member’s
earning capacity (which must be linked to employability).
Altering awards
21. Article 2(5) of the Order contains the general rule that, where the conditions for an award
cease to be fulfilled, the award itself ceases to have effect. It is in these terms:
“Subject to article 44(7), any condition or requirement laid down in this Order for an
award, or the continuance of an award…shall, except where the context otherwise
requires, be construed as a continuing condition or requirement, and accordingly the
award…shall cease to have effect if and when the condition or requirement ceases to be
fulfilled”.
22. Article 44(7) is not relevant in this case. It permits the Secretary of State to continue an
award even if he has revised it under the other provisions of article 44.
23. Article 5(1) provides that an award “may be made provisionally or on any other basis”. As
Ms Ward for the Secretary of State points out, the 2006 Order says nothing further of
relevance about provisional awards.
GT v Secretary of State for Defence (WP)
[2016] UKUT 0309 (AAC)
CAF/2582/2015 6
24. Article 44 contains a framework for reviewing various decisions under the Order. Article
44(2) confers power on the Secretary of State to review an award made under the Order. The
grounds on which the review power may be exercised include that “there has been any relevant
change of circumstances since the award was made”.
25. Article 44 draws a distinction between reviewing and revising. Reviewing is used in the
sense of looking again at an award. The distinction is seen most clearly in article 44(4):
“…following a review under paragraph (1) of any decision accepting a claim for
pension or any assessment of the degree of disablement of a member of the armed
forces, that decision or assessment may be revised by the Secretary of State to the
detriment of a member of the armed forces only where the Secretary of State is
satisfied that—
(a) the decision or assessment was given or made in consequence of ignorance of, or
a mistake as to, a material fact, or of a mistake as to the law…”
26. Revision involves altering an award. Article 44(5) provides:
“An award under this Order may be revised by the Secretary of State to the detriment
of a member of the armed forces only where the Secretary of State is satisfied that—
(a) the award was made in consequence of ignorance of, or a mistake as to, a
material fact, or of a mistake as to the law; or
(b) there has been any relevant change of circumstances since the award was
made…”.
27. The output of revision is governed by article 44(6):
“…any revised decision, assessment or award shall be such as may be appropriate
having regard to the provisions of this Order”.
28. If the Secretary of State thinks a decision on an award “should be reviewed”, article 65(1)
gives him power to require the pensioner to supply information or evidence which is
reasonably required to determine whether the award should be revised, or to attend a medical
examination. In default, the Secretary of State has power to suspend payment of the award.
Continued default may result in cancellation of the award under article 66.
Jurisdiction of the First-tier Tribunal
29. Section 5A of the Pensions Appeal Tribunal Act 1943 (as amended) applies to “any such
claim as is referred to in section 1…of this Act” (war pension claims). This includes a claim
under the 2006 Order.
30. By section 5A(1), where the Secretary of State makes a “specified decision” on a claim he
is required to specify the ground on which it is made and “thereupon an appeal against the
GT v Secretary of State for Defence (WP)
[2016] UKUT 0309 (AAC)
CAF/2582/2015 7
decision shall lie to the appropriate tribunal on the issue whether the decision was rightly made
on that ground”.
31. Section 5B provides:
“In deciding any appeal under any provision of this Act, the appropriate tribunal—
(a) need not consider any issue that is not raised by the appellant or the Minister in
relation to the appeal; and
(b) shall not take into account any circumstances not obtaining at the time when the
decision appealed against was made.”
32. “Specified decisions” are set out in regulations. For present purposes, these are the
Pensions Appeal Tribunals (Additional Rights of Appeal) Regulations 2001. Regulation 3A(1)
specifies a decision:
“(a) which is made in exercise of any provision of the 2006 Service Pensions Order
listed in Schedule 1A; and
(b) which—
(i) refuses or discontinues an award;
(ii) establishes or varies the amount of an award; or
(iii) establishes or varies the date from which an award has effect”.
33. Within Schedule 1A we find an entry for “Article 12 – unemployability allowance”.
The arguments and my conclusions
Ground 1
34. For the Secretary of State, Ms Ward’s argues the Tribunal’s finding that Mr T’s mobility
was “reasonable” at the date of the First-tier Tribunal’s decision could not be considered
irrational. This was because the Tribunal accepted the contents of the January 2014 medical
report which included the opinion that Mr T would improve over the following twelve months.
35. The first point to make is that section 5B of the 1943 Act prevented the Tribunal from
taking into account circumstances not obtaining when the decision under appeal was taken.
The decision was taken on 27th November 2014 and the Tribunal decided the appeal in April
2015 although, of itself, that may not be significant given Mr T’s evidence that he did not
improve.
36. The second point is that the Tribunal did not, in its statement of reasons, adopt all the
findings of the January 2014 report. It said it accepted “that notice of disability” contained in
the January 2014 report which it found to be consistent with Mr T’s oral evidence. The
Tribunal also accepted Mr T’s evidence that he had not improved, in particular that his most
GT v Secretary of State for Defence (WP)
[2016] UKUT 0309 (AAC)
CAF/2582/2015 8
recent surgery had not “proved productive”. So far as improvement was concerned, on the
Tribunal’s findings that was still to come and not as a result of a lessening of his knee
symptoms but solely from him becoming accustomed to his pain relief: “his pain is to some
extent controlled by medication and the effects of drowsiness can be expected to improve”. At
no point do the Tribunal’s reasons show that his case was approached on the footing that,
judging matters as they stood at the date of the Secretary of State’s decision, Mr T would
improve as a result of his January 2014 surgery.
36. For the above reasons, I do not accept that the apparent inconsistency in the Tribunal’s
reasons is explained by the Tribunal having adopted the view that Mr T was likely to improve
over the twelve months to January 2015. The Tribunal’s inconsistent findings amount to an
error on a point of law because they mean inadequate reasons were given for its decision.
37. This cannot be considered an immaterial error and so I must set aside the Tribunal’s
decision. The types of employment proposed for Mr T, such as packing and light assembly,
would be likely involve him trying to perform anatomical operations that, on the 2014 report’s
findings, would either be very difficult or impossible.
Ground 2
38. I accept Ms Ward’s argument that the interpretation of “unemployable” is not influenced
by the role played by therapeutic earnings in Article 12. In particular, I do not think the view
on which I invited submissions – whether capacity to do work of a type envisaged by the
therapeutic earnings provisions is always to be ignored – stands up to analysis.
39. The therapeutic earnings provisions do not include a typical deeming provision in that they
are not declaratory. They confer a power to deem. Specifically, they confer a power to treat as
unemployable a person who is in receipt of therapeutic earnings. Furthermore, the definition of
“therapeutic earnings” is itself a moving target since it is dependent on the exercise of another
power (an exercise of judgement). The decision maker must take the view that the work in
question is not detrimental to the health of the member. All of this means the likely application
of the therapeutic earnings exception is uncertain and may well vary from case to case. As a
result, the legislative scheme cannot accommodate any assumption that certain types of work
will always be disregarded.
40. To conclude, the therapeutic earnings provisions have no wider effect than that suggested
by their literal meaning. They can only assist a person (a) who is “in receipt” of earnings within
the specified limit; (b) whose work is considered by the decision maker not to be detrimental to
their health; and (c) whom the decision maker decides to treat as unemployable.
Ground 3
41. I think the question whether the Tribunal should have considered making a provisional
award is in fact a red herring. Since I have decided to set aside the Tribunal’s decision on
ground 1, I shall give only brief reasons why.
GT v Secretary of State for Defence (WP)
[2016] UKUT 0309 (AAC)
CAF/2582/2015 9
42. The 2006 Order contains a mechanism for altering awards. These are the review and
revision provisions. Whether they could adequately have catered for the uncertainty over Mr
T’s prognosis depends on what “unemployable” means.
43. Ms Ward argues that, in Article 12 of the Order, unemployable means permanently
unemployable simply because the Secretary of State has always interpreted the term in
accordance with Schedule 7(2) to the Social Security Contributions and Benefits Act 1992.
Schedule 7(2) provided for an “unemployability supplement” to industrial injury disablement
pensions where a person was “incapable of work and likely to remain so permanently”.
However, Article 12 does not refer to a person being permanently unemployable and I do not
consider such a qualification must necessarily be implied. My attention has not been drawn to
any provision which requires Article 12 to be interpreted in accordance with Schedule 7 to the
1992 Act.
44. Even if a disabled person’s health condition is not likely to change, the way in which
different people adjust to their disabilities can be difficult to predict. And new assistive
technologies continue to be developed. To require a person to be permanently unemployable
asks the decision maker to make predictions about matters which are often inherently uncertain
and is unlikely to have been intended by the legislator.
45. Further support for this view is found in the conditions for invalidity allowance under
Article 13 of the 2006 Order. That allowance may only be paid to a person awarded UA under
Article 12(1)(a). Article 13(4) of the invalidity allowance conditions assumes UA may be
awarded during an interruption in employment:
“If the unemployability in respect of which the allowance is awarded forms part of a
period of interruption of employment for [specified statutory purposes] which has
continued without a break from a date earlier than the date fixed under paragraphs (2)
and (3), the relevant date shall be the first day of incapacity for work for those
purposes in that period.”
46. UA takes the form of a weekly allowance, rather than a gratuity. And so the imperative to
protect public funds is not undermined by construing Article 12 so that a person is
unemployable if, at the decision date, the person can fairly be considered unemployable even if,
at some point in the future, the person might not be.
47. For the above reasons, there was no need for the Tribunal to consider making a provisional
award in order to cater for the possibility that Mr T’s circumstances might change.
48. I observe that if the circumstances of a person do change so that the person may no longer
be unemployable, Article 44 of the Order permits the Secretary of State to look again at
(review) the award and, if he thinks appropriate, exercise his power of revision so as to
discontinue it. I do not however discount the possibility that the power to make a provisional
award might be exercised in response to an uncertain prognosis. For example, it might be
legitimate to make an award provisional on the disabled person submitting to a medical
examination by some specified date.
GT v Secretary of State for Defence (WP)
[2016] UKUT 0309 (AAC)
CAF/2582/2015 10
Disposal
49. I allow this appeal and remit the matter to the First-tier Tribunal for re-hearing in
accordance with the following directions.
Directions
Subject to any later Directions by a Judge of the First-tier Tribunal, I remit this appeal
to the First-tier Tribunal and direct as follows:
(1) A rehearing of Mr T’s appeal must be held by the First-tier Tribunal. The Tribunal must
not, in its reasoning, take into account the decision or findings of the Tribunal whose
decision I have set aside.
(2) The Tribunal’s membership must not include any of the members of the Tribunal whose
decision I have set aside.
(3) If Mr T has any further written evidence or submission upon which he wishes to rely,
they must be received by First-tier Tribunal within one month of the date this Decision
is issued.
(Signed on the Original)
E Mitchell
Judge of the Upper Tribunal
2nd August 2016
HD v Secretary of State for Defence (WP) [2017] UKUT 376 (AAC), [2017] 4 WLR 182
HD v SS(D) (WP) [2017] UKUT 376 (AAC)
2
CAF/1819/2016
DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
Decision and Hearing
1. This appeal by the appellant succeeds. Permission to appeal having been given
(in respect of various grounds) by a judge of the First-tier Tribunal on 3rd June 2016
and (on other grounds) by me on 17th May 2017 and in this decision, and in
accordance with the provisions of section 12(2)(b)(ii) of the Tribunals, Courts and
Enforcement Act 2007 I set aside the decision of the First-tier Tribunal (WPAFC
Chamber) sitting at Fox Court (London) on 24th November 2015 made under
reference SD/00133/2015. I substitute my own decision. This is to the effect that
appellant did not have to make a claim for (restored) widows pension following the
death of her second husband. I refer the matter to the Secretary of State to proceed
with the consideration of the matter on this basis.
2. I held an oral hearing of this appeal at Field House (London) on 10th July 2017.
Neither the appellant nor her appointee daughter attended in person but they were
represented by Glyn Tucker of the Royal British Legion. The Secretary of State was
represented by Saul Margo of counsel. I am grateful to them for their assistance in
both written and oral argument.
The Legal Framework
3. The legal position is governed by articles of The Naval, Military and Air Forces Etc
(Disablement and Death) Service Pensions Order 2006 (“the SPO” or “the Order”),
which, so far as is relevant, provides as follows (references are to article numbers):
23(1) The surviving spouse or surviving civil partner of a member of the
armed forces whose death is due to service may be awarded a pension [at the
appropriate rate as specified in Schedule 2] …
33(1) Subject to the following provisions of this article, any pension or
allowance awarded under this Part of this Order or under Part II of a 1919 to
1921 instrument to a person other than a parent shall cease if that person
marries or lives with another person as the spouse of that person or forms a
civil partnership or lives with another person as the civil partner of that person.
(2) Where-
(a) in accordance with paragraph (1) an award ceased because the
person had another person living with her or, as the case may be,
him as a spouse or formed a civil partnership or had another
person living with her, or as the case may be, him as a civil
partner; and
HD v SS(D) (WP) [2017] UKUT 376 (AAC)
3
(b) the person claims an award under this part in respect of a
period which begins after the end of that relationship
The claim shall be determined as though the relationship had never ended.
(3) …
(4) In determining whether a pension is payable to a person as a surviving
spouse in respect of any period beginning on or after 19th July 1995, no
account may be taken of the fact that the widow has married another if, before
the beginning of that period, the marriage has been terminated or the parties
have been judicially separated.
…
(7) For the purposes of paragraph (4)-
(a) The reference to the termination of a marriage is to the termination
of the marriage by death, dissolution or annulment …
34(1) Subject to paragraph (4) and article 35, it shall be a condition precedent
to the making of any award of any pension, allowance or supplement
mentioned in paragraph (2) (including any such award which follows an
earlier award or which follows a period which, had there been an award for
that period, would have ended in accordance with article 33(1)) that the person
making the claim shall have-
(a) completed and signed a form approved by the Secretary of State for
the purpose of claiming that pension, allowance or supplement payable
under this Order; and
(b) delivered that form either to an appropriate office of the Secretary
of State or to the office of an authorised agent.
(2) The pensions, allowances and supplement to which paragraph (1) applies
are-
…
(k) a surviving spouse’s or surviving civil partner’s pension payable
under article 23;
35(1) A claim for the pensions, allowances and supplements mentioned in the
following paragraphs of this article shall not be required if the conditions set
out in the relevant paragraphs are satisfied.
(2) …
HD v SS(D) (WP) [2017] UKUT 376 (AAC)
4
(3) A claim for a surviving spouse’s or surviving civil partner’s pension under
article 23 is not required if-
(a) the member of the armed forces by reference to whose death the
pension would be payable died whilst serving in the armed forces; and
(b) copies of that member’s medical and service records are delivered
to the Veterans Agency.
…
4. Paragraph 62 of Schedule 6 to the Order defines “Veterans Agency” as “an office
designated by the Secretary of State for the purpose of receiving and determining
applications for a pension, allowance or supplement”.
5. Article 46 of the Order provides that Schedule 3 has effect with respect to
commencement dates of awards under the Order. Paragraph 1 of Schedule 3 provides
that, subject to other provisions of the Schedule, an award shall have effect from the
date (not earlier that the latest of) the date of death or the date of claim.
6. So far as is relevant paragraph 5 of Schedule 3 provides as follows:
5. Where a claimant satisfies the Secretary of State that-
(a) he would have made a claim … on a date (“the earlier date”) earlier
than that (“the actual date”) on which he actually did so but for the fact
that he was incapable of doing so or instructing someone to act on his
behalf by reason of illness or disability; and
(b) that illness or disability continued to be the cause of the delay up to
the moment the claim or application was made
any reference in this Schedule to the date of claim … shall be treated as a
reference to the later of-
(i) the earlier date; and
(ii) the date three years before the actual date.
7. Subject to exceptions which are not relevant in the present case, the relevant parts
of paragraph 10 of Schedule 3 to the Order provide as follows:
10. … where a claimant satisfies the Secretary of State that-
(a) he would have made a claim … on an earlier date than he actually
did but for an act or omission of the Secretary of State or any officer of
his carrying out functions in connection with war pensions … which
HD v SS(D) (WP) [2017] UKUT 376 (AAC)
5
wrongly caused him to delay the claim or application and the act or
omission was the dominant cause of the delay; and
(b) that act or omission continued to be the dominant cause of the
delay up to the moment the claim or application was made
any reference in this Schedule to the date of claim … shall be treated as a
reference to the earlier date referred to in this paragraph.
8. On an appeal the reference in paragraph 5 and the first reference in paragraph 10 to
the Secretary of State are to be read as references to the tribunal.
Background and Procedure
9. The appellant is a woman who was born on 14th September 1920. On 5th September
1942 she married for the first time. Sadly, her husband was killed on active service on
6th December 1942. She was awarded a war widow’s pension. She remarried on 1st
December 1945 and, in accordance with the law and rules prevailing at the time, her
entitlement to war widow’s pension ceased. Her second husband died on 30th
November 2000. She did not at the time make any relevant claim for war widow’s
pension or similar payment.
10. With effect from 19th July 1995 the legislation changed so that (using the language
applicable to the present case) if a claimant’s first husband had died before 31st March
1973 the pension could be retained on remarriage on or after 6th April 2005. Where
the pension had been surrendered prior to 6th April 2005 it could be restored at the end
of the second marriage.
11. The appellant and her daughter (who is her appointee) became aware of the then
current position in 2014 and made enquiries of Veterans UK in November 2014. A
claim was made on 15th November 2014. On 23rd February 2015 the Secretary of
State awarded the appellant “Restored War Widow’s Pension” from 15th November
2014 – the date of the new “claim”. The amount of pension and age allowance
awarded as at the date of claim was £266.29 weekly. As this appeal is about the
correct commencement date, clearly there is a significant amount of money at stake.
12. On 1st May 2015 the appellant, who was by then living in Australia, appealed to
the First-tier Tribunal against the decision of the Secretary of State in relation to the
commencement date. The First-tier Tribunal considered the matter in London on 24th
November 2015 in the absence of the appellant or any representative. The Secretary
of State was represented by an official from the Veterans Agency. The tribunal
confirmed the decision of the Secretary of State, although it seems that its written
reasons were not issued until 28th April 2016. The appellant’s daughter applied for
permission to appeal to the Upper Tribunal on two grounds. The first related to the
matters in paragraph 10 of Schedule 3 to the Order (act or omission of Secretary of
State etc). The second related to the claimant’s medical condition. On 3rd June 2016
Upper Tribunal Judge Wikeley, sitting as the Chamber President (Temporary) of the
HD v SS(D) (WP) [2017] UKUT 376 (AAC)
6
First-tier Tribunal, gave the appellant permission to appeal to the Upper Tribunal. In
relation to the first ground he commented “I am not persuaded there is an arguable
error of law”. In relation to the second ground he commented that “it may be
questionable whether the Tribunal either made sufficient findings of fact or gave
adequate reasons”. His permission was given “principally on the second point, but not
limited to that”. On 17th May 2017 I directed that the appellant could raise any point
of law on which she had hitherto relied. However, she had not received any legal
advice before the First-tier Tribunal hearing and, to the extent necessary, I now give
permission to appeal on any relevant point of law. I am satisfied that the Secretary of
State has had due warning of, and an opportunity to consider, all the points that were
raised. I also directed that there be an oral hearing of the substantive appeal, and that
took place on 11th July 2017.
13. The Secretary of State opposes the appeal and supports the decision of the Firsttier Tribunal. Mr Tucker put forward three grounds of appeal.
Incapacity to Claim
14. The relevant medical evidence is that relating to the appellant during the period
between the death of her second husband (30th November 2000) and the date taken by
the Secretary of State as the date of claim (15th November 2014). Paragraph 5 of
Schedule 3 to the Order effectively allows backdating for three years prior to the date
of claim if throughout the period the claimant was incapable of claiming by reason of
illness or disability. There is a certain amount of medical evidence on the file but
attempts to obtain full GP records were unsuccessful, partly because of the appellant’s
move from the United Kingdom to Australia.
15. On 10th November 2005 a General Hospital in North Shields (UK) reported that
the appellant had had a right partial anterior circulation stroke in April 2005 and
diagnoses included ischaemic heart disease, hypertension, previous TIAs (no dates
given), hiatus hernia, diverticular disease, hysterectomy and paroxysmal atrial
fibrillation. A long list of medication was supplied. Problems identified in the stroke
review clinic on that day included tingling pain in the right hand, reduced sensation in
the left arm, and poor eyesight due to cataracts. The staff nurse commented:
“She is independent with all activities of daily living. She does not however
feel she has made a full recovery from the stroke. She still has lack of
sensation in her left arm and leg”.
16. An occupational therapy home visit report, written on 29th July 2008 in respect of
a visit on 25th July reported falls inside and outside and the need to use a range of
mobility aids but no problems with communication and no psychological problems in
respect of eg orientation, memory, mood or mental state – although the value of this
report should not be overstated as it does not report the opinion of a psychologist or
psychiatrist or specialist mental health worker.
HD v SS(D) (WP) [2017] UKUT 376 (AAC)
7
17. There was a hospital admission on 17th January 2012 with persistent bleeding, and
it was noted that the appellant was “usually self caring” and could make all her needs
known with no problem communicating.
18. On 29th May 2014 the appellant saw a consultant physician (also in the UK) who
reported that she understood why it was necessary to carry out certain investigations
and provided verbal consent.
19. A letter of 27th February 2015 from what appears to be a GP practice in Australia
referred to additional problems with retinal haemorrhages, chronic kidney disease and
lumbar spinal stenosis as well as “significant impairment” shown on MMSE (mini
mental state examination).
20. On 11th September 2015 Dr P Kearney, the medical adviser to the Secretary of
State concluded that there was no evidence that the appellant had been prevented from
2000 from making a claim through illness. I observe that this was on the basis of the
written evidence rather than any physical examination or discussion with those who
had attended the appellant.
21. The appellant’s daughter (who is her appointee) made written representations to
the effect that the appellant had been suffering from long term dementia and
Alzheimer’s disease and would always tell the relevant professionals that she was fit
and well and could look after herself even while being quite aggressive in her verbal
response to family members. She would not remember going for medical assessments
and “defiantly deny” that she had been out that day. It was only while seeing David
Cameron on the TV in 2014 talking about war widows’ pensions that she suddenly
said “I used to get one of those”, having not been capable of remembering that until
that particular prompt.
22. The First-tier Tribunal found as follows (references are to paragraph numbers of
its written decision and reasons):
3(e) … The tribunal did not identify any additional evidence in the available
evidence to show that the appellant was mentally incapable of understanding
what her entitlement might be …
5. Although the response contains details of ill-health, the nature of that ill
health did not disable this appellant from telling her family that she once had a
war pension during 2014 when widows war pensions were referred to [on TV]
…
23. Mr Tucker made the same point as made by Judge Wikeley (when giving
permission to appeal) about the inadequacy of the tribunal’s reasoning on this matter.
Mr Margo pointed the lack of medical evidence to support a finding that could bring
the appellant within paragraph 5 of Schedule 3 to the Order. However, he overstated
his case by suggesting that the First-tier Tribunal had dealt with this matter adequately
and that the appointee daughter’s evidence could never be sufficient to support a
HD v SS(D) (WP) [2017] UKUT 376 (AAC)
8
contrary finding. I agree both that the First-tier Tribunal’s reasoning on this point was
inadequate, and that the evidence before the First-tier Tribunal could not bring the
claimant within paragraph 5. It is possible that, with the resources of the Royal British
Legion (which were not utilised for the First-tier Tribunal hearing) further relevant
medical evidence could be obtained, and if this were the only matter in issue, I would
have referred the matter back to the First-tier Tribunal for a fresh hearing and
decision.
Act or Omission of Secretary of State
25. Paragraph 5 of Schedule 3 to the Order relates to the situation where, to put it
crudely, the Secretary of State can be blamed for the appellant’s failure to make the
claim earlier than it was made. There was evidence before the tribunal that when the
1995 legislation was going through parliament the Secretary of State took steps to
notify 78 organisations and publications of the changes, including very large charities
and advice agencies and many relevant ex-Services organisations (pages 11 to 16 of
the Upper Tribunal file). At that time it was estimated that 16,500 war widows would
benefit, and that the War Pensions Agency had already received 8620 enquiries.
26. The First-tier Tribunal stated:
3(e) to (f) … [The appellant] did not know about her entitlement despite
reasonable efforts by the Secretary of State to widely disseminate knowledge
of this development in the law. On the evidence … the tribunal concluded that
reasonable steps were taken by the Secretary of State to disseminate
knowledge of entitlement to war widows pension. It would have solved the
current problem were the appellant to have been written to directly but it is
highly likely that the record of a young war widow of 1942, who ceased to
have a war widows pension in 1945, would have been lost in the mist of time
that had passed by the time of the change of the law in 1995.
4. Unfortunately the appellant did not know about her entitlement in 2000 on
the death of her second husband. This is despite reasonable and documented
efforts by the Secretary of State to disseminate this information. She did not
know about her entitlement until 2014.
27. Mr Tucker argued that potential beneficiaries should have been notified directly of
the possible restoration of pension. An obvious initial enquiry that could have been
made, but was not, was whether there was an extant record of the cessation of the
claimants’ pension. The First-tier Tribunal was in error in not considering this. There
was a small group of those whose pensions had been removed and the Secretary of
State could have written to them all.
28. In written submissions to the Upper Tribunal, under the guise of legal argument,
the Secretary of State tried to smuggle in further evidence on this point. I disregard
such evidence, but note the argument that the fact that the appellant and her daughter
were not aware of the publicity given to the change in the legislation “does not negate
HD v SS(D) (WP) [2017] UKUT 376 (AAC)
9
that more than reasonable steps were taken by the Secretary of State to make widows
aware of the revision to the Scheme” (written observations of 2nd September 2016).
29. I do not know whether the Secretary of State or the various government agencies
responsible for these matters did maintain records of war widows whose pensions had
been withdrawn, although they may well have done, but to expect them to have kept
track of their whereabouts and addresses or contact details until 1995 (a period of half
a century for this appellant) would be expecting too much.
30. Reference was made to the decision of Mr Justice Newman in the Administrative
Court in Secretary of State for Defence v William Reid [2004] EWHC 1271 (Admin).
Although that decision deals with the same provisions as this one, it does not help me
to reach a decision. In that decision Mr Justice Newman observed that it was open to
the Secretary of State to call evidence (before the Pensions Appeal Tribunal, which
has now been replaced by the First-tier Tribunal) of the reasonable steps that had been
taken to inform personnel abroad, but he had not done so. Accordingly the judge
upheld the decision of the tribunal to backdate an award in that case. In the present
case the Secretary of State did present such evidence (to the First-tier Tribunal) and
that tribunal was entitled to accept the evidence and find that there was no relevant act
or omission.
The Need for a Claim
31. The issue here is whether the circumstances come within the provisions of article
35(3) of the Order. This is set out above and applies when the death occurred while
serving in the armed forces (which is not in doubt here) and copies of the deceased’s
medical and service records are delivered to the Veterans Agency (as defined above).
32. The Secretary of State argued that article 35(3) should not be interpreted as
applying where the restoration of war widows pension is sought. This is because
article 33(2)(b) uses the words “that person claims an award” in relation to such
restoration, followed by the words “the claim shall be determined” (my underlining).
Article 33 does not state that there are circumstances in which there is no need to
make a claim, and does not refer to article 35(3). Generally the Order makes express
provision that claims or applications need to be made in all circumstances other than
those set out in article 35(3) and imposes strict time limits. In article 35(3) cases the
Secretary of State is already in possession of all the necessary information and
therefore there is no need for a claim. In paragraphs 7 and 8 of his written
observations of 2nd March 2017 Mr Margo expressed it in this way:
“7. … it would make no practical or policy sense if this exception to the need
to make a claim applied to cases where a surviving spouse is seeking the
restoration of a pension on the grounds that a subsequent spouse had died …
The Secretary of State would need to know that the death had taken place. In
the vast majority of cases there would be no way that the Secretary of State
could know such a thing without being informed as the result of a claim being
HD v SS(D) (WP) [2017] UKUT 376 (AAC)
10
made. It follows that a purposive reading of [the Order] favours the Secretary
of State’s interpretation.
8. … if a person in [the claimant]’s position did not need to make a claim, the
Secretary of State could be liable for making up missed pension payments
going back many years in circumstances where there was no possible way for
the Secretary of State to have known that an entitlement to a (restored)
pension had arisen. This would be contrary to the effective administration of
the War Pensions Scheme.”
33. I am not sure that this last point makes a great deal of sense. The amount of
pension the Secretary of State would liable to pay would be the same whether a claim
were made on the day after the death of the second husband or whether a claim was
made or notification given many years later, and if the records required by article
35(3)(b) have been provided there would be very little effect on administration.
34. Mr Tucker pointed to an amendment to the Order made with effect from 6th April
2015 (by SI 2015 No 208). Article 33(2)(b) now reads:
33(2)(b) that person applies to restore the award in respect of a period which
begins after the end of the relationship that led to the cessation of the award.
He suggested that the use of the word “claim” in the previous version of 33(2)(b)
meant no more than the phrase “applies to restore the award” in the new version. It is
article 34(1) that requires a formal claim, and that is expressly subject to article 35.
This is an explicit exception to the general approach to claims and time limits taken in
the Order. This exception indicates that it was intended to place a greater onus on the
war pensions scheme in such cases.
35. I agree with Mr Tucker that the use of the word “claim” (which is not defined in
article 2 of or Schedule to the Order) in the unamended version of 33(2)(b) is
effectively a shorthand term for applying or notifying or requesting, or supplying
information. It does not carry the same import as the requirement for a formal claim
under article 34.
36. I note that article 23 refers to a deceased “whose death was due to service”. The
death does not have to have taken place whilst serving. The general rule is that a
claim must be made under article 34. However, there is an exception in article 35(3)
to the general rule in article 34 if the deceased “died whilst serving”. This must be
because the Secretary of State cannot be expected to know what happens to a former
member but can be expected to know what has happened to a serving member.
Subject to the satisfaction of the condition in article 35(3)(b) a formal claim by the
present appellant would not be required and she would be entitled to a restored
pension as and when she satisfied the other conditions. Presumably this was on the
death of her second husband.
HD v SS(D) (WP) [2017] UKUT 376 (AAC)
11
37. Mr Margo argued that there is no evidence that article 35(3)(b) was satisfied in
1942 and it has not been suggested that it was satisfied at any subsequent stage. I find
this suggestion strange. It is not disputed that a widows pension was awarded to the
appellant in 1942 or that her first husband’s death was due to and whilst in service.
The Secretary of State’s predecessor must have been satisfied at the time, on medical
evidence, that he had died. The fact of the award at the time is in itself evidence in the
present case. Accordingly it can be taken that whoever was designated to do so at the
time received the relevant medical and service records, unless there is any evidence to
the contrary (which, in this case, there is not).
38. On this basis I allow the appeal and make the decision and order indicated above.
H. Levenson
Judge of the Upper Tribunal
14th September 2017