CAF 3326 2005
| Jurisdiction | UK Non-devolved |
| Judge | Judge J. Mesher |
| Judgment Date | 03 October 2006 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CAF 3326 2005 |
| Subject Matter | War pensions and armed forces compensation |
R(AF) 1/07
|
Mr J Mesher Commissioner 3 October 2006 |
CAF/3326/2005 |
War disablement pension – structure of the scheme – distinction between entitlement appeals and assessment appeals – burden of proof – precedential status of decisions of nominated judges
The claimant claimed that his assessment for war disablement pension should take account of new conditions rotator cuff syndrome and degeneration of his hip joints, which he submitted were consequential on conditions which had been accepted by a previous tribunal as attributable to service. The Secretary of State issued decisions that the conditions rotator cuff syndrome left shoulder and soft tissue injury low back (post-service) were not attributable to or aggravated by service and refused to increase the existing assessment of disablement on review. On appeal the tribunal found that the claimant’s “post service back injuries, if any, were not due to service factors” and did not mention his hips. The Secretary of State issued a subsequent decision in relation to hip problems, diagnosed as right trochanteric bursitis, which was the subject of a further appeal, pending at the time of the Commissioner’s decision. In his appeal to the Commissioner, the claimant argued that the tribunal had erred in failing to explain why it did not deal with the claim in relation to hip problems. The appeal also raised issues as to whether an appeal against a decision on attributability of a condition consequential on an accepted decision was an entitlement decision (against which an appeal lies to a Pensions Appeal Commissioner) or an assessment decision (against which there is no appeal). The Commissioner also set out the status in appeals to the Pensions Appeal Commissioners of decisions of the nominated judges of the High Court and the Court of Session in appeals under the Pensions Appeal Tribunals Act 1943 from decisions of Pensions Appeal Tribunals given before 6 April 2005
Held, allowing the appeal, that
1. Pensions Appeal Commissioners have taken over the statutory appeal that previously lay to the nominated judges of the High Court and, while decisions of the nominated judges remain binding on pensions appeal tribunals, as are decisions of the Commissioners, decisions of the nominated judges are not binding on the Commissioners, but will normally be followed in the absence of strong reason to the contrary (paragraphs 18 to 21);
2. a claimant must prove injury and resulting disablement and the causal connection between them on the balance of probabilities before the question of the relationship of the injury to service is decided on the basis of giving the claimant the benefit of any reasonable doubt (Royston v Minister of Pensions [1948] 1 All ER 778, 3 War Pension Appeal Reports 1593 and Secretary of State for Defence v Rusling [2003] EWHC 1359 (QB), 13 June 2003 followed) (paragraphs 22 to 32);
3. the tribunal had erred in law by failing to explain why the appeal failed in relation to the condition soft tissue injury low back (post-service) (paragraphs 33 to 35);
4. while it was not necessary to decide the issue, the Commissioner inclined to the view that the tribunal had erred in failing to deal with the claimant’s submission about hip problems, since those problems were included in his claim and Rusling was authority for the view that a claimant retained the right to continue to challenge on appeal a diagnostic label for a condition under which a claim was originally rejected, even though the Secretary of State had later accepted another condition as attributable to service and as a cause of all the symptoms complained of. It would also be consistent with the essential nature of an appeal as a rehearing of the issue before the person who made the decision under appeal (Barratt v Minister of Pensions (1948) 1 WPAR 1225 and R(IB) 2/04 cited) (paragraphs 36 to 39);
5. a contention that a claimant has a new disablement operates as a claim, as distinct from a contention that disablement already accepted has got worse, which operates as an application for review of the past award. It does not matter in principle that a new disablement is said to result from an injurious process that has already been accepted as connected to service, and where the existing disablement either as expressly identified or as assumed to result from a defined injury is in the impairment of a particular organ or part of the body or mind, a contention that some different organ or part of the body or mind is now impaired is a claim in respect of a new disablement (paragraphs 40 to 47).
The Commissioner remitted the case to a differently constituted tribunal for rehearing at the same time as the appeal against the Secretary of State’s decision in respect of the condition right trochanteric bursitis.
DECISION OF THE PENSIONS APPEAL COMMISSIONER
1. The claimant’s appeal to the Commissioner is allowed. The decision of the Birmingham pensions appeal tribunal dated 8 June 2005 in respect of the Secretary of State’s decision dated 14 April 2004 relating to the condition soft tissue injury low back (post-service) is erroneous in point of law, for the reasons given below, and I set it aside. The case is referred to a differently constituted pensions appeal tribunal for determination in accordance with the directions given in paragraph 52 below (Pensions Appeal Tribunals Act 1943, as amended, section 6A(4)(b)).
2. In this case the Treasury Solicitor, on behalf of the Secretary of State for Defence, supported the claimant’s appeal to the Commissioner. In the amended submission dated 28 February 2006, it was accepted that the pensions appeal tribunal (PAT) of 8 June 2005 had given inadequate reasons for rejecting the case made for the claimant about the Secretary of State’s decision on soft tissue injury low back (post-service). It was also accepted that the PAT’s separate decision on the same day, notified on a separate decision notice, in relation to the condition rotator cuff syndrome left shoulder, stood unaffected by the present appeal and any setting aside of the other decision. I confirm that that is the position. It was submitted for the Secretary of State that the claimant’s appeal against the decision of 14 April 2004 on the condition soft tissue injury low back (post-service) should be sent back to a new PAT for rehearing. Some other practical proposals were made (that I shall come back to below) for ensuring that the new PAT would be able to consider the full scope of the case being put forward for the claimant.
3. The claimant’s representative, Mr John Rowlands of Solihull Citizens Advice Bureau, was in general content with the effect of the submission for the Secretary of State. But in his submission dated 4 April 2006 he submitted that there might remain confusion about whether the case to be remitted should properly be considered as an entitlement appeal (ie an appeal under section 1(1) of the Pensions Appeal Tribunals Act 1943 (the 1943 Act)) or as an assessment appeal (ie an appeal under section 5 of the 1943 Act, where there is no further appeal to the Commissioner) and that a definitive ruling was necessary. He also queried the necessity for the proposals in the Secretary of State’s submission, especially that the Veterans Agency should issue a new decision. There was a request for an oral hearing to deal with those matters.
4. I granted that request because some issues identified in my ruling arose about the directions that would need to be given to the new PAT conducting the rehearing. The claimant did not attend the hearing on 23 August 2006, but was represented by Mr Rowlands. The Secretary of State was represented by Mr Steven Kovats of Counsel, instructed by the Treasury Solicitor on behalf of the Secretary of State. I am grateful to both representatives for their submissions, which did take matters forward, although without making the questions to be answered much less difficult.
The factual background
5. The claimant served in the Coldstream Guards from 1964 to 1974. On 16 May 1999 he made a claim, under article 5 of the Naval, Military and Air Forces Etc (Disablement and Death) Service Pensions Order 1983 (SI 1983/883) (the Service Pensions Order), in respect of disablement caused by lower back pain and by shrapnel wounds to arms, legs and shoulder. The shrapnel wounds were caused by a grenade incident while he was serving in Aden in 1965. That incident and his injuries were confirmed in service records. On 22 November 1999 the Secretary of State accepted that the condition multiple shrapnel wounds (1965) was attributable to service and assessed the percentage disablement at one to five per cent. The claimant had said that the low back pain was caused by an accident when he fell about three feet off the back of a lorry while serving...
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