Secretary of State for Defence v Reid
| Jurisdiction | England & Wales |
| Judge | Mr Justice NEWMAN |
| Judgment Date | 28 May 2004 |
| Neutral Citation | [2004] EWHC 1271 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: PA/16/2003 |
| Date | 28 May 2004 |
[2004] EWHC 1271 (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: PA/16/2003
Steven Kovats (instructed by Treasury Solicitor) for the Appellant
Rabinder Singh QC and Professor Conor Gearty (instructed by Linder-Myers) for the Respondent
This war pensions appeal raises an important issue of interpretation in connection with paragraph 10 of Schedule 3 to the Naval, Military and Air Forces Etc. (Disablement and Death) Services Pensions Order 1983 ( SI 1983/883) (the SPO).
Paragraph 10 provides:
"Except in a case to which paragraph 6, 7 or 9 applies, where a claimant satisfies the Secretary of State that-
(a) he would have made a claim or an application for a review on an earlier date than he actually did but for an act or omission of the Secretary of State or any officer of his carrying out functions in connection with war pensions, defence, or foreign and commonwealth affairs, which wrongly caused him to delay the claim or application and that act or omission was the dominant cause of the delay; and
(b) that act or omission continued to be the dominant cause of the delay up to the moment the claim or application was made,
any reference in this Schedule to the date of a claim or date of application for review or application for an appeal shall be treated as a reference to the earlier date referred to in this paragraph".
Paragraph 10 in its current form, which I have set out above, came into effect from 9 th April 2001, for the purpose of decisions made on or after 9 th April 2001. Previous versions of Schedule 3, to which it will be relevant to refer, include those of 1983 and 1997. At this stage it is material to note that prior to 7 th April 1997 the legislation in connection with the backdating of awards provided that the Secretary of State had an overriding discretionary power to depart from the normal rule, the discretion being stated in these terms:-
"Except in so far as the Secretary of State may otherwise direct with respect to any particular case or class of case, payment of a pension … shall not be made in respect of any period preceding …".
The Secretary of State appeals against a decision of the Pensions Appeal Tribunal for England and Wales (the PAT) which by its decision dated 5 th June 2003 applied paragraph 10 of Schedule 3 and concluded that the respondent, Mr Reid, would have made a claim on an earlier date than he actually did but for an omission of the Secretary of State, which wrongly caused him to delay the claim, and that the omission was the dominant and continuing cause of the delay up to the moment the claim was made. The relevant omission found by the PAT was that the Secretary of State had failed to take reasonable steps to make available war pensions information to ex-service personnel abroad. The PAT considered the evidence which was before it and concluded that there had been a breach of that duty and that, therefore, a relevant omission had occurred. Mr Kovats, counsel for the Secretary of State, submits that the decision is wrong in law in so far as it concludes that the Secretary of State was under a duty to take reasonable steps to make available war pensions information to ex-service personnel abroad. Mr Kovats alternatively submits that, if there were such a duty, the conclusion that the Secretary of State breached the duty was wrong in law.
The Facts
William Reid was born on 14 th November 1924 in Belfast, Northern Ireland. Shortly after his 18 th birthday, on 15 th December 1942 he enlisted into the Royal Armoured Corp and thus commenced his service in the armed forces. He remained enlisted until 18 th February 1955, when he resigned his regular army commission. His rank at that time was captain (acting major) in the 14 th/20 th King's Hussars.
In the course of the second world war he served in North Africa, Italy and South East Asia. After the war he served in Malaya, Norway and Canada. He was awarded the Military Cross for his services in the second world war.
On 17 th January 1945, when he was acting as tank troop leader leading a counter-attack on German troops, he was wounded from the blast and the fragments of an enemy shell which hit the tank. He was taken to the Forward Field Hospital, which served the troops taking part in the winter line of attack on the Adriatic Coast of Italy, south of Lake Commachio. He had some 30 shell fragments removed from his head. Others have worked their way out over the years. He was concussed, temporarily blinded and deafened and was suffering from lower back pain, having been thrown against the back of the tank turret by the blast. After removal of shell fragments from his head, face, mouth, ears and neck and several operations, he returned to his regiment within weeks, in February 1945, only to be shelled again whilst on reconnaissance, on this occasion losing a small piece of his left ear and again being blinded, deafened and concussed. He was able to persuade the regimental medical officer not to evacuate him and thus to avoid further worry for his parents, who would have just received the first "next of kin" notice in respect of his earlier injury, and who would, had he been evacuated, have then received a second such notice.
After the war he continued in the armed services despite continuing difficulties with his left eye, his back and, from time to time, temporary deafness. In 1947, whilst still a serving officer, backache was diagnosed as due to a fracture in the lower vertebrae. He was not medically discharged. Had he been so, the question which now has to be decided would never have arisen for he would have been under no obligation to make a claim (Article 3B, SPO).
Upon discharge from the army he immediately emigrated to Canada where he has remained to this date, now aged 80, and in retirement, having completed his service as a public servant in Canada. He married in December 1959.
By a letter dated 8 th November 1997, addressed to the War Pensions Agency, Mr Reid wrote stating:
"It has been brought to my attention that I may be entitled to a disability pension as a result of service in the British army".
He then briefly set out an account of how he was injured in service. He then went on to point out:-
"Whether it was the first injury (which involved multiple shell fragments embedded in my neck, face and head) or the second, or a combination of both, I have – in the years since – had difficulty with my left eye, including one period of almost total blindness about twenty years ago. I have had a loss of hearing in my right ear since the war, for which I was forced to buy a hearing aid several years ago, and now I have been told that my left ear requires attention".
He also pointed out that in recent years the back pain had increased. He closed by stating:
"I would appreciate knowing what procedure I should follow in applying for whatever pension rights I may have".
That letter led to him being in possession of a war disablement pension claim form, which he filled out and which was received by the War Pensions Agency on 16 th January 1998.
Unremarkably, having regard to the facts, his claim to entitlement was accepted and an award was made on 17 th August 1999 which was backdated to 18 th December 1997, namely the date of the claim. In November 1999 Mr Reid took up the question of backdating and stated he wished to appeal the assessment. In his letter dated 23 rd November 1999 he stated:
"I have lived in Canada for over forty years, and did not realize until 1997, when a comrade who was wounded within days of myself in 1945, made contact with me and, inter alia, mentioned that he had been in receipt of a war pension as long as he could remember. This was the first inkling I had that such a pension was possible. While I have had twinges of envy about the generous treatment of Canadian veterans (whether or not they were wounded) I had accepted that wartime service in the much larger British army (even if wounded) was something one volunteered for, and afterwards got on with one's life. I have obviously paid a price for emigrating, and being out of touch. Somehow I do not think that is fair, since the injuries I sustained have been with me right through the years and if I had continued to live in Britain I would have become aware of my eligibility decades ago. My appeal, therefore, is that on grounds of fairness there should be a retroactive acknowledgement of that eligibility. I would suggest that a reasonable compromise might be to start the pension on the date I turned sixty-five, that is on 14 th November 1989."
By a letter dated 13 th January 2000, the Secretary of State purported to exercise a discretion to refuse the request for backdating, which Mr Reid had sought by his letter dated 23 rd November 1999. At that date, by reason of the change in the law to which I have already referred, namely the removal in 1997 of a general discretion on the part of the Secretary of State, Mr Reid's application for backdating should have been considered in the light of paragraph 10 to Schedule 3 as it then was. It can be observed that in the light of the facts which had been presented to the Secretary of State in Mr Reid's letter, had the exercise of discretion been intra vires and susceptible to challenge in this court, Mr Kovats might have been in some difficulty justifying it as a lawful exercise of discretion. That said, it only remains to refer to one paragraph in the letter...
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