CAF 3923 2006
| Jurisdiction | UK Non-devolved |
| Judge | Judge J. Mesher |
| Judgment Date | 16 February 2007 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CAF 3923 2006 |
| Subject Matter | Commissioners' procedure and practice |
DECISION OF THE PENSIONS APPEAL COMMISSIONER
1. The appeal to the Commissioner by the Secretary of State for Defence is disallowed. The decision of the London pensions appeal tribunal dated 27 April 2006 is not one against which an appeal lies to a Commissioner under section 6A(1) of the Pensions Appeal Tribunals Act 1943. Accordingly, I have no jurisdiction to do more than disallow the purported appeal and declare the legal position to be as above.
2. There was an oral hearing of the appeal on 5 February 2007. The Secretary of State was represented by Mr Clive Lewis QC, instructed by the Treasury Solicitor. The claimant was represented by Mr Guy Opperman of counsel, acting pro bono and instructed by Moore & Blatch solicitors. In view of the unusual nature of the case and the submissions made at the oral hearing, amplified by brief subsequent written submissions, my decision goes into rather more detail that it might otherwise have done. I also take into account that the claimant was not able to attend the oral hearing and deserves an explanation of what is going on in his case.
The background
3. The claimant had the condition bilateral sensorineural hearing loss (noise induced) accepted as due to his service in the Fleet Air Arm from 1942 to 1946 by a decision dated 20 August 1992. The assessment of resulting disablement, on a final basis, was 6 - 14%. He received a lump sum gratuity. On 8 June 1999 a pensions appeal tribunal (PAT) sitting in London disallowed his appeal against a final assessment made on 20 February 1997 of the disablement due to that condition at 6 - 14%, on an application by the claimant on 9 September 1996 for review on the ground of deterioration. There was thus no increase of the claimant's existing assessment in that decision. The claimant wrote the Veterans Agency (VA) on 5 September 2005 applying for a further review and saying that his hearing had deteriorated considerably in the interim. The VA sent him an application for review form, which the claimant completed very clearly and signed on 16 October 2005. On 4 November 2005 the VA wrote to him as follows:
"I am writing in connection to your recent application for a deterioration claim of the condition Bilateral Sensorineural Hearing Loss (noise induced).
I am sorry but there are no grounds for reviewing the decision upheld by the Pensions Appeal Tribunal on 08/06/1999.
I am sorry if this is a disappointing response.
If you have any queries please do not hesitate to contact us."
There was nothing in the letter about rights of appeal.
4. The claimant consulted the Royal British Legion (RBL), who wrote to the VA saying that the claimant proposed to lodge an assessment appeal against the decision and asking them to send him the necessary forms. On 25 November 2005 the VA wrote to him saying that the Secretary of State's view was that "the law under which your claim and appeal was considered does not provide a further right of appeal" to the PAT, but that, as the PAT had the authority to consider and decide whether there was a right of appeal, the appeal forms were enclosed for completion if the claimant wished to pursue the matter. The claimant did appeal against the decision not to review the decision of the PAT of 8 June 1999.
5. In the statement of case prepared on behalf of the Secretary of State, the terms of reference to the PAT were put as follows (page 26D):
"The tribunal is asked to decide whether there is any statutory right of appeal against the decision of 4 November 2005 not to undertake a review. In the event that the tribunal considers that a right of appeal does exist, the Secretary of State may wish to place the matter before the courts for a ruling, and would request that the tribunal did not proceed beyond the jurisdiction issue which is the matter set before it."
The statement of case set out Article 67 of the Naval, Military and Air Force Etc (Disablement and Death) Service Pensions Order 1983 (the 1983 Service Pensions Order) on review, including paragraph (2A):
"(2A) Any assessment or decision made, given or upheld by the Pensions Appeal 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."
6. The section on the Secretary of State's comments included this:
"[I]t is the opinion of the Secretary of State that Noise Induced Hearing Loss does not deteriorate once exposure to excessive noise ceases. Any such deterioration in hearing in these cases will be due to non-service related factors such as ageing or post-service noise exposure, therefore does not accept that there are grounds to review that decision.
There is no statutory right of appeal against the decision of the Secretary of State not to undertake a review. Such a decision is not a Specified Decision as provided for under Article 5A of the Service Pensions Order 1983 as amended by the Child Support, Pensions and Social Security Act 2000 and accordingly, the Secretary of State is firmly of the opinion that this matter should fall outwith the jurisdiction of a Pensions Appeal Tribunal."
7. The reference above should have been to section 5A of the Pensions Appeal Tribunals Act 1943 (the 1943 Act), as inserted by the 2000 Act and subsequently amended by the Armed Forces (Pensions and Compensation) Act 2004. Subsection (1) provides that where the Minister makes a "specified decision" he must notify the claimant of the ground on which it is made and that an appeal against the decision lies to a PAT "on the issue whether the decision was rightly made on that ground". Under subsection (3) a "specified decision" is one not capable of being the subject of an appeal under some other provision of the 1943 Act and which is of a kind specified by the Minister in regulations. Regulation 3(1) of the Pensions Appeal Tribunals (Additional Rights of Appeal) Regulations 2001 specifies any decision made in exercise of any provision of the 1983 Service Pensions Order listed in Schedule 1 to the Regulations which refuses or discontinues an award, establishes or varies the amount of an award or establishes or varies the date from which an award has effect. Schedule 1 lists many Articles of the 1983 Service Pensions Order, but not Article 67 on review or Article 9 on determining the degree of disablement.
8. Section 5 of the 1943 Act provides that an appeal lies to a PAT from any interim or final assessment of the degree of disablement by the Minister and from a decision that there is no disablement. An appeal from a final assessment lies on the issues whether the circumstances of the case permit a final settlement and whether the Minister's assessment was right. The PAT's powers are in terms of upholding or setting aside the assessment or making either a higher or lower assessment.
9. Section 6A(1) of the 1943 Act provides:
"(1) Subject to the provisions of this section, an appeal shall lie to an appropriate Social Security Commissioner [known for this purpose as a Pensions Appeal Commissioner: Social Security Commissioners (Procedure) Regulations 1999, regulation 4(3)] from any decision of the Tribunal under section 1, 2, 3, 4 or 5A of this Act on the ground that the decision was erroneous in point of law."
The PAT's decision
10. The case was allocated a "specified decision" reference number by the PAT administration. The chairman of the PAT of 27 April 2006 recorded the reasons for its decision on a standard pro forma prepared for specified decision cases. The pre-printed text in paragraph 2 stated that the appeal was one under section 5A of the 1943 Act. The chairman crossed out the various pre-printed subjects of such an appeal and wrote in "review". The PAT's decision, as recorded on the formal decision notice and in the statement of reasons was to allow the claimant's appeal and to declare that the claimant had a right of appeal against the Secretary of State's refusal to review the PAT's decision of 8 June 1999.
11. I set out in full the chairman's carefully expressed reasoning, especially as the typed version later produced by the PAT administration failed to transcribe a continuation sheet of the handwritten original:
"The appeal was presented to us as an appeal against a refusal to review, the VA arguing before us today that as the PAT (Additional Rights of Appeal) Regs 2001 does not include `a decision not to review' as one of the specified decisions in respect of which a right of appeal is given, therefore there can be no right of appeal in this case.
The Tribunal drew that VA representative's attention to the fact that in other cases the VA has notified appellants that a review has been undertaken on application, but that the original decision is still appropriate and that there is a...
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