Entitlement to War Pension - General Principles

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Chapter 3

Entitlement to War Pension – General Principles

DISABLEMENT OR DEATH ‘DUE TO SERVICE’
3.1 In order to be entitled to any war pension benefits, a claimant must have suffered disablement or death which is ‘due to service’. Articles 40 and 41 of the SPO 2006 prescribe the conditions and burden and standard of proof for establishing entitlement, which depend on whether a claim has been made or death has occurred before (article 40) or after (article 41) the end of the period of 7 years from the termination of service.

3.2 Under both articles 40 and 41 of the SPO 2006, disablement must be accepted as ‘due to service’ if it is due to an injury which:

(i) is attributable to service; or
(ii) existed before, or arose during, service and has been and remains aggravated thereby.

Death must be accepted as ‘due to service’ if it was ‘due to or hastened by’ (article 40) or ‘due to or substantially hastened by’ (article 41):

(i) an injury which was attributable to service; or
(ii) the aggravation by service of an injury which existed before or arose during service.

Initial burden on the claimant – the Royston principle
3.3 In Royston v Minister of Pensions,¹it was held that under what is now article 40 of the SPO 2006, the burden of establishing the existence of the

¹[1948] 1 All ER 778 and (1947) 3 WPAR 773 (there are significant differences between the two reports; see Secretary of State for Social Security v Bennett, 17 October 1997, unreported).

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disablement that is claimed to have been caused by service lies on the claimant. Therefore, under both articles 40 and 41, the burden of establishing the existence of disablement or the fact of death lies on the claimant. However, under article 40 the onus is then on the Secretary of State to show beyond reasonable doubt that the disablement or death was not due to an injury that was either attributable to, or aggravated by, service: there is no legal burden on the claimant to provide reliable evidence supporting the link between the disablement and service. On the other hand, under article 41 the onus is on the claimant to provide reliable evidence supporting that link but, if the claimant does so, he or she is entitled to the benefit of any reasonable doubt. Subject to the Royston principle, under article 40 the onus is on the Secretary of State to show beyond reasonable doubt that injury was neither attributable to, nor aggravated by, service. Under article 41, there is an initial burden on the claimant to show that disablement or death was due to service, but article 41(5) provides that the claimant is entitled to the benefit of any reasonable doubt in deciding whether the conditions of entitlement are satisfied.

3.4 In Secretary of State for Defence v NM (WP),²the claimant fell from a window while attending a party in the course of his duties. There was no evidence indicating how the accident occurred. Judge Rowland explained (at [27]) the practical difference between article 40 and article 41 cases as follows:

The difference between article 40 and article 41 is therefore solely as to the burden of proof. Where article 40 applies, it is for the Secretary of State to exclude any reasonable doubt or, in other words, to prove that the only reasonable possibility is that the disablement is not due to service. Where article 41 applies, it is for the claimant to prove that there is a reasonable doubt, or in other words that there is a reasonable possibility that the disablement is due to service. In many cases, which of articles 40 and 41 applies may have little effect on the outcome. However, the burden of proof is particularly important where there is no, or insufficient reliable evidence on an issue despite the parties’ efforts to provide what they can. In such a case, it determines ‘who should bear the consequences of the collective ignorance’ (see Kerr at [66]^[3]).

‘DISABLEMENT’ AND ‘INJURY’
3.5 ‘Disablement’ is defined in paragraph 27 of Schedule 6 to the SPO 2006 as ‘physical or mental injury or damage or loss of physical or mental capacity’, and ‘injury’ is defined in paragraph 32 of Schedule 6 as ‘including wound or disease’ (subject to exclusions in cases involving the use of alcohol or tobacco).⁴

²[2017] UKUT 0223 (AAC).

³Kerr v Department for Social Development [2004] UKHL 23, [2004] 1 WLR 1372.

⁴See para 8.18.

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The term ‘disablement’ therefore covers virtually all forms of physical or mental impairment, including hysterical and neurotic conditions, even if the disablement has not caused any loss of capacity for work or the enjoyment of life, although in such a case a nil assessment of the degree of disablement will be appropriate (see Harris v Minister of Pensions⁵). In R(AF) 1/07, Mr Commissioner Mesher (as he then was) defined ‘disablement’ as ‘some impairment of the proper functioning of part of the body or mind’ and held that ‘disablement’ should be distinguished from what a person is prevented from or restricted in doing as a result of the disablement (which is taken into account in assessing a person’s degree of disablement), as well as from the mere symptoms of a condition. In CT v Secretary of State for Defence,⁶Judge Jacobs held that ‘disablement’ refers to the consequences of a condition or injury, so that in the case of a disfiguring injury the relevant disablement consists of the interference with the capacity to enjoy a normally occupied life, rather than to the disfigurement itself. In CAF/3198/2012,⁷Judge Levenson defined ‘disablement’ as ‘an impairment of proper functioning of mind or body (whether or not it currently involves any loss of capacity to do things), or a loss of capacity to do things’.

3.6 Articles 40 and 41 of the SPO 2006 refer to disablement which is ‘due to an injury’, but the definition of disablement in paragraph 27 of Schedule 6 also includes ‘physical or mental injury’ as one form of disablement. In R(AF) 1/07, Mr Commissioner Mesher (as he then was) held that it is necessary to separate the disablement on which a claim is based from the basic ‘injurious process’ underlying the disablement (often referred to as a claimant’s ‘condition’). ‘Injury’ is also to be distinguished from the incident in service that is said to have been the cause of injury. In CAF/3198/2012,⁸Judge Levenson summarised the stages which are necessary to establish entitlement as follows:

(i) there must be a disablement – an impairment of proper functioning of mind or body (whether or not it currently involves any loss of capacity to do things), or a loss of capacity to do things;

(ii) the disablement must be due to (caused by) an injury, which is any pathological process that could cause a disablement, but which is distinct from the incident or accident that caused the injury;

(iii) the injury must be attributable to service.

⁵[1948] 1 KB 422, [1948] 1 All ER 191.

⁶[2009] UKUT 167 (AAC).

⁷Unreported.

⁸Unreported.

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Diagnostic labelling
3.7 Since there is no obligation on a claimant to select a ‘diagnostic label’ for a claim and claims are often made in non-medical terms, for example, ‘bad back’, the decision-making process generally involves selecting a diagnosis or term that accurately denotes the basic injurious process encompassed by the claim, for example, ‘lumbar spondylosis’, in order to decide whether death or disablement is due to service.

3.8 In Secretary of State v Rusling,⁹the claimant asserted that his disablement was due to ‘Gulf War Syndrome’. The Secretary of State accepted the claim on the basis of a diagnostic label of ‘Symptoms and signs of Ill-Defined Conditions’, but the claimant appealed against the rejection of the diagnostic label of ‘Gulf War Syndrome’, on which he had based his claim. Section 1 of the Pensions Appeal Tribunals Act 1943 requires the Secretary of State to notify the claimant of the ground for rejecting a claim and gives a right of appeal on the issue of ‘whether the claim was rightly rejected on that ground’.¹⁰Newman J held that there is therefore a right of appeal against the choice of diagnostic label used by the Secretary of State in determining the claim, even though the claim has been accepted on some other basis. However, a different view was taken in JM v Secretary of State for Defence (AFCS)¹¹(see para 25.5).

‘ATTRIBUTABLE TO SERVICE’ Meaning of ‘attributable to service’
3.9 In JM v Secretary of State for Defence (AFCS),¹²a case concerned with liability for bullying under the Armed Forces Compensation Scheme,¹³a three-judge panel of the Upper Tribunal (Charles J, Judge Rowland and Judge Lane) accepted that the underlying purposes of the War Pensions Scheme and of the Armed Forces Compensation Scheme are the same, so that the...