Secretary of State for Defence v Hulme

Approved Judgment

Hearing date: 24 th February 2003

Mr. Justice Neuberger

This is an appeal from a decision of the Pensions Ombudsman given on 14 ^th November 2002. It concerns the proper interpretation of Regulation 3090 of the Queen's Regulations for the Royal Air Force ("the Queen's Regulations RAF"). The point raised on the appeal is a short one, but, I am told by counsel, it is one of some significance

The facts

Sergeant T G Hulme was killed in a mountaineering accident on Mont Blanc, on 6 ^th June 1996. At the time, he was on leave from his base at RAF Laarbruch, but he was preparing for an approved Joint Forces Expedition to Greenland the following year. His widow, Mrs Cheryl Hulme, applied for a War Widow's Pension under the War Pensions Scheme ("the WPS") That application was considered by the War Pensions Agency which, until June 2001, was part of the Department of Social Security, but is now part of the Ministry of Defence, and has been renamed the Veterans Agency. The Department of Social Security is now part of the Department for Work and Pensions. Like the Pensions Ombudsman in his decision, I will refer to the War Pensions Agency and its successor as "the DSS".

Mrs Hulme's application for a War Widow's Pension under the WPS was initially refused on the basis that her husband's death was not "due to service". However, her application succeeded on appeal, to the War Pensions Agency —i.e. the DSS. It accepted that Sergeant Hulme's death was "due to service". The RAF Pensions Awarding Branch was informed of this decision on 2 ^nd December 1999.

Mrs Hulme was then considered for a so-called "Attributable Pension" under the Armed Forces Pension Scheme ("AFPS"). An "Attributable Pension" is a pension which is payable under the AFPS to certain surviving relatives of a deceased serving person whose death was "attributable to service". This application was referred to the so-called Discretionary Awards Panel ("the Panel"), which acts on behalf of the Defence Council in respect of the AFPS. The Panel concluded that Sergeant Hulme had died on a privately arranged trip, and was not on duty at the time, and that accordingly Mrs Hulme was not entitled to an Attributable Pension. Mrs Hulme appealed that decision to a differently constituted Panel, which upheld that decision, refusing Mrs Hulme an Attributable Pension under the AFPS, on the ground that Sergeant Hulme's death was not "attributable to service".

Mrs Hulme complained about the decision of the Panel to the Pensions Ombudsman. Her case was that, as it had been determined that her husband's death was "due to service" for the purposes of the WPS, that decision was effectively binding for the purposes of deciding whether she was entitled to an Attributable Pension under the AFPS. That issue turns on the proper construction of Regulation 3090 of the Queen's Regulations RAF, and while those Regulations apply only to those serving in the Air Force, there are Regulations which are in effectively identical terms applicable to the other branches of the Armed Forces.

In his determination, the Pensions Ombudsman concluded that the determination by the DSS for the purposes of the WPS that Sergeant Hulme's death was due or attributable to service was effectively determinative of that issue for the purposes of Regulation 3090 of the Queen's Regulations RAF. The Secretary of State now appeals that decision.

The two schemes

There are two separate pension schemes for members of the Armed Forces, namely the War Pension Scheme, the WPS, and the Armed Forces Pension Scheme, the AFPS.

The WPS is a State Pension, administered pursuant to the Naval, Military and Air Forces etc. (Disablement and Death) Service Pensions Order 1983 ( S.I .1983/883) ("the 1983 Order"). As I have mentioned, it is now administered by the Veterans Agency, part of the Ministry of Defence, but, until June 2001, the Veterans Agency was known as the War Pensions Agency and was part of the DSS, now itself part of the Department of Work and Pensions. The 1983 Order has been varied from time to time, and I quote from it in the form that it was at the time of Mrs Hulme's application under the WPS, but amendments made subsequently do not appear to impinge on the issue I have to determine. All references to Articles hereafter are to Articles of the 1983 Order.

Article 3 provides:

"Subject to Articles 3A and 3B, awards under this Order may be made where the disablement or death of a member of the Armed Forces is due to service."

It is clear from Article 3A(2)(j) and 29 that, not surprisingly, one of the categories of person who may claim such an award is (albeit subject to certain immaterial qualifications) the widow of a member of the Armed Forces whose death was due to service.

Article 4, according to its title, is concerned with "Entitlement where a claim is made in respect of a disablement, or death occurs, not later than seven years after the termination of service". The provisions of Article 4(1) in so far as they relate to death, are in the following terms:

"4(1) Where, not later than seven years after the termination of the service of a member of the armed forces, ….the death occurs of that member and a claim is made (at any time) in respect of that death, such… death… shall be accepted as due to service for the purposes of this Order provided it is certified that –"

(a) ….

(b) the death was due to or hastened by —

(i) an injury which was attributable to service…"

The machinery pursuant to which a "matter… required by [the 1983] Order [is] to be certified" is set out in Article 1(4). It is by "a tribunal constituted under the War Pensions (Administrative Provisions) Act 1919 or the Pensions Appeal Tribunals Act 1943 and 1949" (albeit that there is an alternative procedure where "the matter involves a medical question").

Article 4(2) is in these terms:

"Subject to the following provisions of this Article, in no case shall there be an onus on any claimant under this Article to prove the fulfilment of the condition set out in paragraph (1) and the benefit of any reasonable doubt shall be given to the claimant."

The effect of Article 4(2) is that, where a member of the Armed Forces dies in service, it is to be presumed that his death was "due to service", unless the contrary is proved, and, in order for the contrary to be proved, it has to be established beyond reasonable doubt (i.e. the criminal onus applies). In this connection, see Starr -v—Minister of Pensions [1946] KB 345 at 350–351 and Judd -v—Minister ofPensions and National Insurance [1966] 2 QB 580, at 588 and 591–592. As is clear from the opening words of Article 4(2), there are provisions, set out in Article 4(3) to (5), which qualify the effect of Article 4(2) in certain circumstances, for instance where the death was attributable to an injury not noted in a medical report.

I should also refer to Article 6. It entitles the DSS to "withhold, cancel or reduce any award" of a pension otherwise payable under the WPS, where "the injury or death… was caused or contributed to by the serious negligence or misconduct" of the relevant deceased member of the Armed Forces.

Mr Jonathan Crow, who appears on behalf of the Ministry of Defence, rightly points out that the provisions of the 1983 Order in relation to pensions under the WPS are generous when compared with normal pension schemes, and understandably so. Unlike virtually all civilian pension schemes, neither the entitlement to, nor the level of, a pension under the WPS is linked to any period of service, and the unusual and beneficial effect of a provision such as Article 4(2) also speaks for itself. On the other hand, the AFPS, to which I now turn, can fairly be described as a more familiar type of pension scheme; in particular, its provisions are not confined to the making of awards in cases of attributable disablement or death. Further, whereas the present burden and onus of proof under the WPS was first introduced in 1943 during the Second World War, the AFPS was not established during a major war.

The Queen's Regulations RAF constitute a very substantial document, and they form part of the AFPS, and include provision for payment of pensions under the AFPS. Chapter 41 is concerned with "Family Pensions and Gratuities to Widows and Widowers and Children of Officers and Airmen". All references to Regulations are to regulations in that Chapter (in force at the relevant time). Section 1 of Chapter 41 is entitled "Family Pensions and Gratuities —General Conditions". These general conditions include Regulation 3065 which is in the following terms, so far as relevant:

"(1) …. a pension cannot be claimed as a right nor will it be granted unless, in the opinion of the Defence Council, the service given by the deceased has been such as to justify the award.

(2) If the death of an officer or airman was due wholly or in part to his own negligence or misconduct or to any cause within his own control, the award and amount of any family pension payable will be at the discretion of the Defence Council."

Section 5 of Chapter 41 of the Queen's Regulations is entitled "Attributable Long Term Family Pensions Payable to Eligible...