Secretary of State for Defence CAF 914 2008
| Jurisdiction | UK Non-devolved |
| Judge | Judge A. Lloyd-Davies |
| Judgment Date | 28 April 2009 |
| Neutral Citation | 2012 UKUT 116 AAC |
| Subject Matter | War pensions and armed forces compensation |
| Respondent | PY |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CAF 914 2008 |
| Appellant | Secretary of State for Defence |
[2012] AACR 44
(Secretary of State for Defence v PY (WP) [2012] UKUT 116 (AAC))
Judge Lloyd-Davies CAF/914/2008
28 April 2009
Procedure – Pensions Appeal Tribunals –whether and when a tribunal can change its mind after giving an oral decision
War disablement pension – meaning of “officer of the Secretary of State” in Service Pensions Order 2006, Schedule 3, paragraph 10
In October 1981 the claimant, who was serving in the Royal Navy, seriously injured his left leg in a road accident. He was granted premature voluntary release and discharged from the Royal Navy in December 1985. On 21 August 2006 he made a claim for war disablement pension. A decision was made accepting that the condition of his left leg was attributable to service and giving an assessment of 20 per cent with a commencement date of the award of 21 August 2006. The claimant appealed, inter alia on the ground that his award should have been backdated to the date of his discharge in 1985. The relevant provisions of the Naval, Military and Air Force Etc. (Disablement and Death) Service Pensions Order 2006 (the 2006 Order) require a claim to be made as a pre-condition of an award (article 34) except where the claimant has been discharged from service on medical grounds (article 35). Where a claim is not necessary an award takes effect from the day after the date of discharge (Schedule 3, paragraph 1(10)), otherwise it takes effect from the date of claim if later than the date of discharge (Schedule 3, paragraph 1). There is an exception: “Where a claimant satisfies the Secretary of State that he would have made a claim on an earlier date … but for an act or omission of the Secretary of State or any officer of his carrying out functions in connection with war pensions … which wrongly caused him to delay the claim … and that act or omission was the dominant cause of the delay, and … continued to be the dominant cause of the delay up to the moment the claim was made.” (Schedule 3, paragraph 10.) On 18 October 2007 a Pensions Appeal Tribunal gave an oral decision that the claimant’s appeal on backdating was disallowed. The following morning, 19 October, the tribunal had a change of mind and gave a short-form written decision, followed later by a written statement of reasons, deciding that backdating should be allowed from the date of the claimant’s discharge in 1985. The claimant had given evidence that he had been advised by a Chief Petty Officer not to take medical discharge as he would be labelled “disabled” and it would make subsequent employment difficult. In giving reasons for its amended decision the Pensions Appeal Tribunal found that the claimant regarded this advice, reinforced by a medical report from a Naval Surgeon Captain, as wholly authoritative and accepted it without question. It further found that the actions of the Chief Petty Officer (backed up by the authority of the Surgeon Captain) represented actions of an officer on behalf of the Secretary of State within paragraph 10 of Schedule 3 to the 2006 Order and that those acts or omissions wrongly caused the claimant to delay his claim and that these matters were, and remained, the dominant cause of the failure to claim. The Secretary of State for Defence appealed with the leave of the President of the Pensions Appeal Tribunal.
Held, allowing the appeal, that:
- the rules governing the giving of a decision by a Pensions Appeal Tribunal do not provide for the decision to be announced orally. The tribunal does not make its decision until that decision is recorded in writing and given or sent to the parties: Hanks v Ace High Productions Ltd [1978] ICR 1155, R v Special Adjudicator ex parte Bashir [2002] Imm AR 1 and SK (Sri Lanka) v SSHD EWCA Civ 495 followed (paragraph 9)
- the failure by the tribunal to give any explanation of its radical change of position from the oral to the written decision rendered the tribunal decision given on 19 October in error of law (paragraph 12)
- the phrase “officer of the Secretary of State” in paragraph 10 of Schedule 3 to the 2006 Order does not include armed forces officers acting as such (paragraphs 20 and 21)
The Upper Tribunal judge substituted a decision that there were no grounds for backdating the claim to any earlier date than 21 August 2006.
Editor’s note re paragraph 9: rule 31(1) of the Tribunal Procedure (First-tier Tribunal) (War Pensions and Armed Forces Compensation Chamber) Rules 2008 (SI 2008/2686) provides that a tribunal may give a decision orally at a hearing.
DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
DECISION
My decision is that the decision of the tribunal held on 18 and 19 October 2007 involved the making of an error of law. I set it aside. I give the decision that the tribunal ought to have given, namely, that the claimant’s appeal was disallowed and that there were no grounds for backdating his claim for war disablement pension to any earlier date than 21 August 2006.
REASONS
Summary of factual and procedural background
1. The claimant, who was born in October 1962, enlisted in the Royal Navy on 11 May 1981. Unfortunately, on 15 October 1982, while riding his motorcycle to his parents’ home on weekend leave, he was involved in a road traffic accident. He suffered a serious fracture of his left femur, tibia and fibula: he subsequently had a number of operations, but was left with a weakened left leg (which he broke on two further occasions, once while he was still in service). He was discharged from the Royal Navy on 26 December 1985, having been granted premature voluntary release (PVR). In 2006 he sought the advice of a service welfare organisation on unconnected matters; he was then told that he could make a claim in respect of his injured left leg. He made a claim for war disablement pension: this was treated as made on 21 August 2006. On 7 November 2006 a decision was made accepting the condition of “fracture of the left femur, tibia and fibula (1982)” as attributable to service and giving an assessment of 20 per cent with a commencement date for the award of 21 August 2006. The claimant appealed on 17 November 2006. The grounds for his appeal were that he wanted his award backdated to the date of his discharge in 1985, that the assessment was too low and that there were other symptoms which were attributable to his leg injury. His appeal on backdating came before a tribunal on 18 October 2007. The claimant attended and was represented by a representative from the Royal British Legion; the Veterans Agency was represented. The tribunal, after deliberating, gave an oral decision disallowing the claimant’s claim for backdating. The following morning (19 October 2007) the tribunal (which was due to hear other cases) had a change of mind: it decided that backdating should be allowed from the day after the date of the claimant’s discharge, namely 27 December 1985. (The same representative of the Veterans Agency was present on 19 October 2007 but the claimant’s representative was not, although she was informed by the tribunal clerk of the changed decision the same day by telephone.) The tribunal gave a short-form written decision allowing the claimant’s appeal on 19 October 2007, and subsequently a statement of reasons (the typewritten copy of which bears the date 3 November 2007) for so doing. The Secretary of State applied for leave to appeal, raising as one of the grounds of appeal the question whether the tribunal had jurisdiction to change its mind. The President of the Pensions Appeal Tribunal sought, and received, statements from the members of the tribunal as to what had happened. The President then granted leave to appeal.
2. I held an oral hearing of the appeal at the request of the Secretary of State. The Secretary of State was represented by Mr Sachdeva of counsel and the claimant was represented by Ms Holender of Lovells, instructed by the Royal British Legion. Since the time allotted for the oral hearing did not prove sufficient, I gave the parties the opportunity of making further written submissions on the issues which had not been dealt with at the oral hearing. This they did. I am grateful to those concerned for their comprehensive submissions, both written and oral.
Legislative background
3. Before I turn to the evidence before the tribunal and to its findings, I summarise the relevant legislative background to the issues the tribunal had to determine. So far as material to the present appeal, the legislation provides:
(a) With exceptions, a claim for war disablement pension is a precondition to any award: article 34 of The Naval, Military and Air...
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