CAF 336 2006
| Jurisdiction | UK Non-devolved |
| Judge | Judge J. Mesher |
| Judgment Date | 30 June 2006 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CAF 336 2006 |
| Subject Matter | Tribunal procedure and practice (including UT) |
THE PENSIONS APPEAL COMMISSIONERS
Commissioner's Case No: CAF/336/2006
PENSIONS APPEAL TRIBUNALS ACT 1943
APPEAL FROM A DECISION OF A PENSIONS APPEAL TRIBUNAL
ON A QUESTION OF LAW
DECISION OF THE PENSIONS APPEAL COMMISSIONER
COMMISSIONER: MR J MESHER
DECISION OF THE PENSIONS APPEAL COMMISSIONER
1. The claimant's appeal to the Commissioner is allowed. The decision of the North Shields pensions appeal tribunal dated 2 December 2005 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 16 below (Pensions Appeal Tribunals Act 1943, as amended, section 6A(4)(b)).
2. In this case, the representative of the Secretary of State for Defence supported the claimant's appeal to the Commissioner, to the extent of agreeing that the pensions appeal tribunal (PAT) of 2 December 2005 had erred in law and expressing no objection to the case being sent back to a new PAT for rehearing. In the light of that support, I can give a relatively short decision, without going into the substance of the question that will be before the new PAT, whether the claimant qualifies for a mobility supplement under Article 26A of the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 1983. That is also one of the reasons why I refuse the claimant's request for an oral hearing of his appeal to the Commissioner. The other reasons are that the matters raised in his reply to the Secretary of State's observations are not relevant to the question of whether the PAT of 2 December 2005 erred in law and that he will have the chance to attend the rehearing before a new PAT to argue his case for the mobility supplement. I am satisfied that the appeal to the Commissioner can properly be determined without an oral hearing.
3. The PAT was concerned with the claimant's appeal against the Secretary of State's decision of 21 December 2004 disallowing his most recent claim for mobility supplement. The claimant had replied to the listing questionnaire sent out by the PAT Office to say that intended to be present at the hearing of the appeal and that he would be represented by the Royal British Legion (RBL). He was sent notice of the hearing of his appeal at 11.30 am on 2 December 2005 at North Shields. The premises used in North Shields were in Kings Court, which is a county court complex.
4. By the day of the hearing, the RBL had withdrawn from representing the claimant. The PAT knew this, because the claimant was described as unrepresented in the statement of reasons. The claimant has said that the RBL's withdrawal was only notified to him 48 hours in advance of the hearing, although it was on the ground of his history of violence, that had been known to the RBL for a long time. I have no legal power to make any rulings on the complaints of negligence that the claimant has made against the RBL.
5. What happened on 2 December 2005 was described as follows in the PAT's statement of reasons for disallowing the appeal (I have corrected some of the typing after looking at the chairman's handwritten original):
"[The claimant] did not attend. No word was received from him. The Tribunal waited until 11.45 am (15 minutes after the allotted starting time) and then proceeded to hear the appeal in [the claimant's] absence.
The Tribunal found that [the claimant's] accepted conditions, as set out in the Statement of Case, do not constitute a true cause of mobility problems. None of his conditions render him unable to walk or otherwise satisfy any of the requirements of Article 26A. Nothing written by [the claimant] in his claim affects that issue.
After the representations had been made, and as the Tribunal was reaching its decision, at noon, the Clerk announced that [the claimant] had just arrived. The Tribunal was not able to undo the proceedings and was not able to allow [the claimant] to have the Appeal reheard at that point."
It is plain from what the claimant wrote in a letter to the President of PATs dated 22 December 2005 that there was some disturbance when he was informed of the PAT's ruling by the clerk. It seems that he was not allowed into the hearing room. The claimant also said in that letter and the accompanying documents that he had arrived at the court building in time for the 11.30 hearing, but because of the particular effects of his conditions, was not able to get out of his car for 15 minutes and then had difficulties being frisked by the security personnel at the court entrance, taking up a further 10 minutes. His mother had gone ahead into the building to inform the PAT of his arrival and possible delay, but was not given proper directions and waited in the entrance hall to be called (which did not happen). I do not know how much of that was communicated to the PAT by the clerk when saying that the claimant had just arrived.
6. The claimant now appeals against the PAT's decision with the leave of Mr Commissioner Bano. When granting leave, the Commissioner said that he could "see no reason why the tribunal could not have re-commenced the hearing after the [claimant] arrived". As noted above, the representative of the Secretary of State supported the appeal in the observations dated 2 March 2006. The observations included the following:
"The Secretary of State notes that the tribunal did have power under Rule 20 [of the Pensions Appeal Tribunals (England and Wales) Rule 1980] to hear the appeal in [the claimant's] absence. However, he does not consider that by only waiting for half an hour, the tribunal was acting fairly to [the claimant], especially having regard to the fact that his mother was present although it would not appear that any court official had approached her.
[The claimant] remonstrated with the tribunal, but having made its decision, it did not have the power to set that decision aside on the day. There is a provision under Rule 20(5) of the PAT Rules for an application to be made to the President where an appellant considers that his appeal should not have...
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