Bringing an Appeal

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Chapter 26

Bringing an Appeal

PROCEDURE
26.1 The procedure for bringing an appeal under the Pensions Appeal Tribunals Act 1943 is governed by the separate rules of procedure in each of the three UK jurisdictions. Appeals brought by persons resident in England and Wales or abroad are dealt with by the War Pensions and Armed Forces Compensation Chamber of the First-tier Tribunal, and appeals brought by those resident in Scotland or Northern Ireland are dealt with by the Pensions Appeal Tribunals in those jurisdictions.¹Proceedings can be transferred from one tribunal to another if the appellant changes address.²An appeal can also be transferred from England and Wales to Scotland or Northern Ireland if the appellant resided abroad when the proceedings were started and if the appellant has a closer connection with Scotland or Northern Ireland than with England and Wales, or if there is some other good reason for the appeal to be heard in Scotland or Northern Ireland. If the tribunal refuses such a request, it must send the appellant written reasons for the refusal.³

26.2 In England and Wales and in Northern Ireland an appeal is brought by sending or delivering a notice of appeal to DBS Veterans UK,⁴although in England and Wales the appeal can also be brought by letter containing the information required by rule 21(1) of the England and Wales Procedure Rules. In Scotland appeals are now brought⁵by sending the completed notice of appeal to

¹Pensions Appeal Tribunals Act 1943, Sch 1, para 6.

²Under powers conferred by Pensions Appeal Tribunals Act 1943, Sch 1, para 6B.

³England and Wales Procedure Rules, r 19.

⁴The form can be downloaded from the DBS Veterans UK website at www.gov.uk/government/ collections/armed-forces-compensation.

⁵As a result of amendments to the Scotland Procedure Rules made by Pensions Appeal Tribunals

(Scotland) (Amendment) Rules 2017 (SI 2017/367) (Scottish SI), r 2(3).

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the Scottish Pensions Appeal Office.⁶Rule 21(1) of the England and Wales Procedure Rules provides that an appellant must start proceedings by sending or delivering a notice of appeal to the decision-maker so that it is received within 12 months after the date on which written notice of the decision being challenged was sent to the appellant. Rule 3 of the Scotland and Northern Ireland Procedure Rules allows for appeals to be brought by a person on behalf of persons under the age of 16 and claimants under a disability, without the need for the formal appointment of a representative.

26.3 The procedure whereby in England and Wales and in Northern Ireland a notice of appeal is sent to the body responsible for the decision under appeal, rather than to the tribunal, is unsatisfactory. As well as being inefficient, it results in the decision-maker having a significant measure of control over the initial stages of an appeal against one of its own decisions, and is therefore inconsistent with the principle underlying the Leggatt reforms in England and Wales⁷that tribunals should be seen to be independent of government. The Armed Forces Covenant Annual Report 2014 commented:

Members of the Armed Forces community are unique in the judicial process in that they have to lodge an appeal with the defendant organisation rather than appeal directly to the tribunal. While the implications of this process might only be with respect to the timing of the hearing of an appeal, they have an impact on perceptions.⁸

Agreement in principle has now been reached for appeals to be brought directly to tribunals, rather than to the decision-maker, in the remaining jurisdictions at some future date.

Form of notice of appeal
26.4 Rule 21(5) of the England and Wales Procedure Rules provides that the notice of appeal must be in English or Welsh and must be signed by the appellant. It 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 (including the full reference) of the decision being appealed;
(e) the grounds on which the appellant relies.

⁶The address of the Office is 126 George Street, Edinburgh, EH2 4HH.

⁷See Chapter 24, n 5.

⁸Ministry of Defence, The Armed Forces Covenant Annual Report 2014 (Ministry of Defence,
2014), p 16.

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Although the rule provides that the notice of appeal must be signed by the appellant, in CO v London Borough of Havering,⁹Judge Wikeley held that the identical requirement in rule 23(6) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008¹⁰was satisfied if the notice of appeal was signed on the appellant’s behalf by the appellant’s solicitor. Rule 7(2) of the England and Wales Procedure Rules allows the tribunal to waive any failure to comply with a requirement of the Rules, and in Salisbury Independent Living v Wirral MBC (HB),¹¹Judge Rowland stated that the requirement for a notice of appeal to be ‘signed by the appellant’ would generally be waived if the notice of appeal is signed by a representative, such as a welfare rights worker or Citizens Advice representative, who provides signed authority to bring the appeal. Rule 4 of the Scotland and Northern Ireland Procedure Rules expressly provides that the notice of appeal can be signed on behalf of the appellant, but requires the date of signature to be stated and the document to be sent by post addressed to the Secretary of State for Defence. In England and Wales the form of notice of appeal is not prescribed, but does have to include the information prescribed by rule 21(5) of the England and Wales Procedure Rules. In Scotland and Northern Ireland, the notice of appeal must be in the approved form. However, the form used for making an appeal is the same throughout the United Kingdom.¹²

Time limits for appeals
26.5 Section 8 of the Pensions Appeal Tribunals Act 1943 originally provided for a time limit of 3 months for bringing appeals against interim assessment decisions and of 12 months for appealing against other decisions from the date of notification of the decision, with a discretion to extend time if there was a reasonable excuse for a delay in bringing the appeal. The 12-month time limit was reduced to 6 months in 2001 by section 58 of the Child Support, Pensions and Social Security Act 2000, but a 12-month time limit, applicable to all war pensions and armed forces compensation appeals, was introduced in 2011. In England and Wales, this is in rule 21(1) of the England and Wales Procedure Rules, as amended by the Tribunal Procedure (Amendment) Rules 2011.¹³The time limits for appealing in Scotland and Northern Ireland remain in section 8 of the 1943 Act, as amended by the Pensions Appeal Tribunals Act 1943 (Time

⁹[2015] UKUT 28 (AAC).

¹⁰SI 2008/2685.

¹¹[2011] UKUT 44 (AAC).

¹²War Pension and Armed Forces Compensation Scheme Notice of Appeal (appeal form), which can be obtained from DBS Veterans UK, Ministry of Defence, Norcross, Thornton Cleveleys, Lancashire FY5 3WP; or downloaded from the website at www.gov.uk/guidance/appeal-awarpension-or-armed-forces-compensation-decision#appeal-form.

¹³SI 2011/651.

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Limit for Appeals) (Amendment) Regulations 2011.¹⁴In Northern Ireland, rule 4 of the Northern Ireland Procedure Rules allows an assessment appeal to be treated as in time if an appellant sends the Secretary of State a letter notifying him of his or her intention to appeal within the permitted appeal period and then submits an appeal form within 6 weeks, but otherwise the time limits for appealing in England and Wales are now the same as the time limits for appealing in Scotland and Northern Ireland.

26.6 However, the position with regard to extending time for appealing is different in England and Wales. The Pensions Appeal Tribunals (Late Appeals) Regulations 2001,¹⁵which continue to apply to appeals in Scotland and Northern Ireland, provide for the time limit for bringing an appeal to be extended by up to 12 months if the appeal is brought as soon as reasonably practicable in the circumstances of the case and the main cause of non-compliance with the time limit was:

(i) the death or serious illness of the claimant or a spouse or dependant of the claimant;

(ii) the disruption of normal postal services;
(iii) failure on the part of the Secretary of State to notify the claimant of the decision; or

(iv) exceptional circumstances applying to the...