Secretary of State for Defence v President of the Pension Appeals Tribunals (England & Wales)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Newman |
| Judgment Date | 04 February 2004 |
| Neutral Citation | [2004] EWHC 141 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4310/2002 |
| Date | 04 February 2004 |
[2004] EWHC 141 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Newman
Case No: CO/4310/2002
Steven Kovats (instructed by Treasury Solicitor) for the Claimant
John Litton, Friend to the Court
Crown Copyright ©
This is an application for Judicial Review bought by the Secretary of State for Defence concerning the decision of the President of Pensions Appeal Tribunals (England & Wales) dated 19 th June 2002 to set aside, pursuant to Rule 37 of the Pensions Appeal Tribunal (England & Wales) Rules ( SI 1980/1120) (the Rules"), the decision of a Pensions Appeal Tribunal ("the PAT") dated 27 th February 2002. The PAT had dismissed Mr Jones' appeal from the Secretary of State's decision, dated 20 th July 2001, to refuse him an allowance under Article 17 of the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order ( SI 1983/883) ("Article 17") in connection with his service pension. Mr Jones applied to the PAT for leave to appeal to the High Court and on the 19 th June 2003 the President issued a direction under Rule 37 of the Rules purporting to set aside the PAT's decision and ordered a rehearing before a differently constituted PAT.
On 22 nd February 1962 Mr Jones was awarded a service pension for bronchial asthma and Colles fracture of the right wrist arising from his service as a private in the Army (ROAC) between 26 th November 1954 until 7 th July 1961. On 13 th July 1999 Mr Jones applied for a clothing allowance under Article 17. The Secretary of State refused his application. Mr Jones' appeal to the Tribunal was refused on 27 th February 2002.
Thereafter, on 10 th March 2002, Mr Jones applied to the Tribunal under Rule 25 of the Rules for leave to appeal the Tribunal's decision to the High Court. On 19 th June 2002 the President of the Tribunals, on his initiative, pursuant to Rule 37 of the Rules, made/gave a direction that the Tribunal's decision be set aside on account of an irregularity under Rule 5 of the Rules. The irregularity was stated as being that the Secretary of State's Statement of Case "did not really meet the claimant's case about the link between his asthma and the soiling of his clothes…". The President has produced a document setting out his observations attached to which are a number of earlier decisions in different cases reached pursuant to Rule 37.
Following a decision by the President not to be represented at the hearing of the claim by the Secretary of State for Defence, the Court requested and the Solicitor General agreed to the appointment of an Advocate to the Court. Mr Jones as the Interested Party and person directly affected by any decision of the Court has also been unrepresented. Another case (CO/4669/2002) where Major Lawson was the Interested Party and which the Court had ordered to be heard at the same time as the present case has been settled by Secretary of State for Defence withdrawing his claim.
The Pensions Appeal Tribunals Act 1943 ("the 1943 Act") makes provision, inter alia, for servicemen who have had claims in respect of disablement arising out of their military service rejected, and against other decisions by the relevant minister affecting awards in respect of such claims, to appeal to the PAT. Section 1 of the 1943 Act applies to the rejection of war pension claims made by members of the naval, military or air forces and provides that:-
"(1) Where any claim in respect of the disablement of any person made under any such Royal Warrant, Order in Council or Order of his Majesty as is administered by the Minister… is rejected by the Minister on the ground that the injury on which the claim is based-
(a) is not attributable to any relevant service; and
(b) does not fulfil the following conditions, namely, that it existed before or arose during any relevant service and has been and remains aggravated thereby;
the Minister shall notify the claimant of his decision, specifying that it is made on that ground, and thereupon an appeal shall lie to the Pensions Appeal Tribunal constituted under this Act… on the issue whether the claim was rightly rejected on that ground.
(2) Where, for the purposes of any such claim as aforesaid, the injury on which the claim is based is accepted by the Minister as fulfilling the conditions specified in paragraph (b) of the last foregoing subsection but not as attributable to any relevant service, the Minister shall notify the claimant of his decision, specifying that the injury is so accepted, and thereupon an appeal shall lie to the Tribunal on the issue whether injury was attributable to such service."
Section 5A inserted into the 1943 Act by section 57(1) of the Child Support, Pensions and Social Security Act 2000 provides as follows:-
"(1) Where, in the case of any such claim as is referred to in section 1, 2 or 3 of this Act, the Minister makes a specified decision-
(a) he shall notify the claimant of the decision, specifying the ground on which it is made, and
(b) thereupon an appeal against the decision shall lie to the Tribunal on the issue whether the decision was rightly made on that ground.
(2) For the purposes of subsection (1), a "specified decision" is a decision (other than a decision which is capable of being the subject of an appeal under any other provision of this Act) which is of a kind specified by the Minister in regulations made by statutory instrument.
(3) Regulations under this section shall not be made unless a draft of the regulations has been laid before, and approved by a resolution of, each House of Parliament."
Pursuant to the Pensions Appeal Tribunals (Additional Rights of Appeal) Regulations 2001 SI 2001/1031 ("the 2001 Regs."), made in exercise of the power conferred on the Secretary of State for Social Security by section 5A(2) of the 1943 Act, a decision by the Secretary of State for Defence made in relation to a claim for an allowance for wear and tear of clothing under the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 1983 ("the SPO") is a "specified decision" for the purposes of section 5A of the 1943 Act (see Regulations 2 and 3(1)(a) and (b)(ii) of the 2001 Regs. and the reference in the Schedule to Article 17 of the SPO). Article 17 of the Service Pensions Order provides as follows:-
"17(1). A member of the armed forces who is in receipt of retired pay or a pension may be awarded an allowance in respect of wear and tear of clothing at the rate specified in paragraph 5 of Part IV…, where either-
(a) …; or
(b) the Secretary of State is satisfied that as a result of the disablement which gives rise to an award under this Order there is exceptional wear and tear of the member's clothing."
Section 6 of the 1943 Act makes provision for the constitution, jurisdiction and procedure of the PAT. A number of subsections have been inserted into section 6 by various Acts since the 1943 Act was given Royal Assent. It provides as follows:-
"(1) The provisions of the Schedule to this Act shall have effect with respect to the constitution, jurisdiction and procedure of Pensions Appeal Tribunals.
(2) Where, in the case of an appeal to the Tribunal under sections 1, 2, 3, 4 or 5A of this Act, the appellant or the Minister is dissatisfied with the decision of the Tribunal as being erroneous in point of law, he may, with the leave of the Tribunal or of a judge of the High Court nominated for the purpose by the Lord Chancellor appeal therefrom, within such time as may be limited by rules of court to the judge so nominated and the decision of that judge shall be final and conclusive…
(2A) Where, in the case of such a claim as is referred to in section 1, 2, 3, 4 or 5A of this Act-
(a) an appeal has been made under that section to the Tribunal and that appeal has been decided (whether with or without an appeal under subsection (2) of this section from the Tribunal's decision); but
(b) subsequently, on an application for the purpose made (in like manner as an application for leave to appeal under the said subsection (2)) jointly by the appellant and the Minister, it appears to the appropriate authority (that is to say, the person to whom under rules made under the Schedule to this Act any application for directions on any matter arising in connection with the appeal to the Tribunal fell to be made) to be proper so to do-
(i) by reason of the availability of additional evidence; or
(ii) (except where an appeal from the Tribunal's decision has been made under the said subsection (2)), on the ground of the Tribunal's decision being erroneous in point of law,
the appropriate authority may, if he thinks fit, direct that the decision on the appeal to the Tribunal be treated as set aside and the appeal from the Minister's decision (the "original decision") be heard again by the Tribunal.
(2B) …
(2C) Where a direction for a rehearing is given under subsection (2A) above, the Minister may, before the expiry of two months beginning with the date of the direction, review the original decision.
(2D) …
(3) Subject to subsections (2) and (2A) of this subsection, the decision of the Tribunal on any issue on which an appeal is brought under this Act shall be final and conclusive."
The Schedule to the 1943 Act makes further provision as to the constitution, jurisdiction and procedure of PATs and provides, inter alia, for the constitution of PATs, appointment of members and the...
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CAF 336 2006
...in Secretary of State for Defence v President of the Pensions Appeal Tribunals (England and Wales), Jones (interested party), [2004] EWHC Admin 141, 4 February 2004, with some suggestions about when a decision might be "made" in the PAT context (although the PAT Rules have been amended sinc......