CF CAF 720 2009
| Jurisdiction | UK Non-devolved |
| Judge | Judge C. Turnbull |
| Judgment Date | 14 January 2010 |
| Neutral Citation | 2010 UKUT 9 AAC |
| Subject Matter | War pensions and armed forces compensation |
| Respondent | Secretary of State for Defence |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CAF 720 2009 |
| Appellant | CF |
IN THE UPPER TRIBUNAL Case No. CAF/720/2009
ADMINISTRATIVE APPEALS CHAMBER
1. This is an appeal by the Claimant against two decisions of a First-tier Tribunal sitting in London on 26 November 2008. For the reasons set out below those decisions were in my judgment wrong in law. I set aside the decisions and remit the matters for redetermination by an entirely differently constituted First-tier Tribunal in accordance with the directions referred to below. However, the Claimant has not won on the main point of his appeals, which relates to passive smoking.
2. The Claimant is a man now aged 74 who served in the RAF between 1952 and 1990. He is in receipt of a war disablement pension, based on a disablement totalling 60%, in respect of a number of conditions not directly relevant to this appeal.
3. On 27 September 2007 he made a claim in respect of osteoarthritis in his left knee and chronic obstructive pulmonary disease (COPD). He claimed that the COPD was due to “passive smoking”, and that he had been exposed to a great deal of that during his service. He also made a claim for a mobility supplement, contending that his lack of mobility was largely the result of the COPD. (In his later written submission to the Tribunal he stated (p.79) that “were it not for COPD I could still get around without too much aggravation).”
4. On 31 January 2008 a decision was made by the Secretary of State accepting that the osteoarthritis in his left knee was due to service (and increasing the assessment of disablement from 50% to 60% as a result), but not accepting that the COPD was caused or made worse by service.
5. On or about 8 February 2008 a decision was made refusing the claim for mobility supplement on the ground that the conditions which had been accepted as due to service did not cause the Claimant difficulty in walking to the required extent.
6. The Claimant appealed against both the COPD and the mobility supplement decision. His grounds of appeal contended that the COPD was caused not only by passive smoking but also by exposure to trichloroethylene, to which he claimed to have been exposed when servicing ejection seats between 1964 and 1967.
7. The Secretary of State’s submission to the First-tier Tribunal in relation to the COPD appeal stated that it was accepted that during his service the Claimant would have spent time in squadron crew rooms where other people would have been smoking. However, the submission went on to state that the rejection of the claim in respect of COPD was on the grounds (a) that item 32 of part 2 of Schedule 6 to the Naval, Military and Air Forces etc (Disablement and Death) Service Pensions Order 2006 was to the effect that “injury” in the crucial article 41(1) of the Order did not include an injury due to passive smoking and (b) that the evidence did not raise a reasonable doubt as to whether the COPD was caused by service because “there is at present no clear evidence that exposure to passive smoking in adulthood can cause COPD.”
8. The Tribunal dismissed both appeals. It produced a combined Statement of Reasons dealing with both appeals. As regards the COPD appeal, it accepted the Secretary of State’s contention that under the 2006 Order “injury” expressly did not include the effects of passive smoking. As regards the question whether the passive smoking in a service working environment had caused the Claimant’s COPD, the Tribunal said that “the evidence in support of that assertion was never tested”, owing to the Tribunal’s acceptance of the Secretary of State’s submission in relation to the meaning of “injury”. However, the Tribunal did not in its reasons go on to consider whether the COPD was due to exposure to trichloroethylene. As regards the mobility supplement appeal, by implication the Tribunal’s reasoning was that that appeal also had to fail because the COPD was not an “injury” for the purposes of the 2006 Order.
9. The Claimant requested permission to appeal to the Upper Tribunal. His letter of appeal mentioned only the reference number of the COPD appeal, but said that he wanted to appeal against “the decision to disallow my appeals.” The chairman, in a decision referring only to the reference number of the COPD appeal, gave permission to appeal, commenting:
“This was a case that many would feel resulted in an unjust decision. It is still incumbent upon the Appellant to link the passive smoking to his COPD but on the present authorities, such would still prevent him receiving justice. Leave is given to enable the Upper Tribunal Judge to consider this matter.”
10. The Claimant’s Notice of Appeal to the Upper Tribunal, on Form UT6, again mentioned only the reference number of the COPD appeal, but the detailed grounds of appeal appeared to proceed on the footing that he was also appealing in relation to the mobility supplement decision.
11. On 23 April 2009 the Upper Tribunal wrote to the Claimant saying that the First-tier Tribunal’s grant of permission to appeal related solely to the COPD appeal, and that if he wished to appeal against the mobility supplement decision he would need first to apply for permission from the First-tier Tribunal in relation to that decision. The Claimant did not reply to that letter or take any action to attempt to obtain permission to appeal from the First-tier Tribunal in respect of the mobility supplement decision.
12. Article 41 of the 2006 Order provides, so far as directly material, as follows:
“(1) ………. Where, after the expiration of 7 years beginning with the termination of the service of a member of the armed forces, a claim is made in respect of a disablement of that member, …….. such disablement ……. shall be accepted as due to service for the purpose of this Order provided it is certified that –
(a) the disablement is due to an injury which –
(i) is attributable to service before 6 April 2005, or
(ii) ………………………………………”
(3) A disablement …….. shall be certified in accordance with paragraph (1) if it is shown that the conditions set out in this article and applicable thereto are fulfilled
(5) Where, upon reliable evidence, a reasonable doubt exists whether the conditions set out in paragraph (1) are fulfilled, the benefit of that reasonable doubt shall be given to the claimant.”
13. Item 32 of Part II of Schedule 6 to the 2006 Order provides that “injury”
“includes wound or disease but excludes any injury due to –
(a) the use or effects of tobacco; or
(b) the consumption of alcohol;
except that paragraph (a) in so far as it relates to the use of tobacco, and paragraph (b) above shall not apply where the person suffers from a mental condition which is attributable to service if –
(i) the degree of disablement in respect of that condition has been assessed at 50% or more; and
(ii) he started or continued to use tobacco or to consume or continue to consume alcohol due to that condition.”
14. In R (Setter) v Secretary of State for Defence [2005] EWHC 3012 (Admin) at para. 48 Davis J, having set out the identical wording of the then applicable provision, said as follows:
“In my view the tribunal was clearly right to conclude that that, on its wording, operated to exclude a claim by reference to passive smoking. The definition is wide and, in particular, extends not simply to the use of tobacco but to the effects of tobacco. That clearly is deliberate. It is to be contrasted with a reference to the consumption of alcohol. It is also to be contrasted, so far as the exception is concerned, with deliberate use of the words “use of tobacco” without referring to the effects of tobacco. It may be at the time this definition was incorporated into the statutory provisions the risks, or possible risks, relating to passive smoking had not been clearly identified. But it seems to me that the language used here plainly operates to exclude such a claim.”
15. The Claimant submits that that view is wrong....
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