Secretary of State for Defence CAF 800 2011
| Jurisdiction | UK Non-devolved |
| Judge | Three-Judge Panel / Tribunal of Commissioners |
| Judgment Date | 27 June 2012 |
| Neutral Citation | 2012 UKUT 229 AAC |
| Subject Matter | War pensions and armed forces compensation |
| Respondent | RC |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CAF 800 2011 |
| Appellant | Secretary of State for Defence |
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[2013] AACR 4 (Secretary of State for Defence v RC (WP) [2012] UKUT 229 (AAC)) Mr Justice Walker CAF/800/2011 Judge Rowland JR/3196/2011 Judge Mesher 27 June 2012 War disablement pension – refusal to review – whether right of appeal A former soldier claimed disablement pension under the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 1983, now replaced by the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 2006. It was accepted that his back condition was a pre-existing condition which had been aggravated during service. Disablement was assessed at between one to five per cent on an interim long-term basis and a disability gratuity of over £1,700 was awarded in lieu of a pension. Following an application for review of the assessment the claimant was notified in 2000 that it had been made final but not that a medical adviser for the Ministry of Defence had also signed a certificate of limitation. The adviser’s view was that the post-service deterioration was due to post-service factors. In 2009 the claimant sought a further review on the basis that his condition had deteriorated. The Secretary of State decided there were no grounds to review the case as it was impossible for any deterioration to be because of service. The claimant appealed. The Secretary of State applied for the appeal to be struck out on the ground that there was no right of appeal against a refusal to review. The First-tier Tribunal held that there was a right of appeal under section 5(2) of the Pensions Appeal Tribunals Act 1943. The Secretary of State appealed. The issues before the Upper Tribunal (UT) were whether the Secretary of State was entitled to refuse to review a decision and, if so, whether the claimant had a right of appeal against such a refusal or a decision that there are no grounds for review. In view of the wider importance of these issues a three-judge panel was constituted. The claimant also applied for judicial review of the Secretary of State’s decision which was transferred to the UT to be heard with the appeal. Held, dismissing the Secretary of State’s appeal and granting the claimant permission to apply for judicial review but dismissing his substantive application, that: 1. (per Judges Rowland and Mesher) the issuing of a medical certificate of limitation has no legal effect – it is only a device for drawing the attention of decision-makers and medical advisers to reasoning that is likely to be conclusive in future determinations (paragraph 34);
2. (per Judges Rowland and Mesher) where an award has been made under the Service Pensions Order 2006, following an assessment of disablement, an application for review must be treated as both an application for review of the assessment under article 44(1) and an application for review of the award under article 44(2)(c) (paragraph 40);
3. (per Judges Rowland and Mesher) an application for review under article 44(1) (on “any ground”) should always lead to a review and therefore a decision under article 44(6). The absence of an arguable ground for revision should lead to a decision to maintain the decision or assessment (not a decision that there are no grounds for a review) (paragraph 50);
4. (per Judges Rowland and Mesher) a decision under article 44(6) to maintain a previous decision, assessment or award is appealable even though that involves a strained construction of section 5(2) of the 1943 Act (paragraphs 58 and 59);
5. (per Judges Rowland and Mesher) alternatively and additionally, a refusal to review is also appealable; a claimant not only has a right of appeal against a decision under article 44(6) to maintain a final assessment, but also has a right of appeal against a decision that there are no grounds for review of such a final assessment, so that any decision under article 44 is appealable (paragraphs 75 and 76);
6. (per Mr Justice Walker) whether there is a right of appeal under section 5(2) depends on whether the substance of the decision meets the requirements of that section (paragraph130);
7. (per Mr Justice Walker) those requirements may be met by what is done when deciding not to review an earlier assessment and will be met where the application is considered under article 44(1) under the Secretary of State’s current policy (paragraph 131).
DECISION OF THE UPPER TRIBUNAL (ADMINISTRATIVE APPEALS CHAMBER) |
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Ms Samantha Broadfoot of counsel, instructed by the Treasury Solicitor, appeared on behalf of the Secretary of State.
Mr Hugh Lyons, barrister of Hogan Lovells International LLP, appeared on behalf of the claimant.
Decisions: The Secretary of State’s appeal against the decision of the First-tier Tribunal dated 7 October 2010, refusing to strike out the claimant’s appeal to the First-tier Tribunal, is dismissed.
The claimant is given permission to apply for judicial review of the Secretary of State’s decision dated 6 August 2009 but the substantive application is dismissed.
REASONS OF JUDGES ROWLAND AND MESHER
1. These proceedings, an appeal from a decision of the First-tier Tribunal, refusing to strike out an appeal to that tribunal from a decision of the Secretary of State for Defence, and an application for permission to apply for judicial review of the same decision of the Secretary of State, raise important questions concerning applications for reviews under the service pensions scheme. Is the Secretary of State entitled to refuse to review a decision when an application for review is made to him? If so, does the claimant have a right of appeal against a refusal to review or a decision that there are no grounds for review?
The facts and procedural history
2. The facts of the case are by no means atypical.
3. The claimant served in the Army from 31 October 1988 to 15 April 1997. Service medical records show that he had complained in 1996 of back pain in his lumbar region on flexion, saying that he had fallen into a pit when he was 16 and thought that was connected. He had been referred for an X-ray. The consequent report of 17 June 1996 said:
“Coverage from T.10 downwards. There is an unusual L.4 spondylolysis and it may even be bilateral. However, there is no forward slip of L.4 on L.5. The S.I. joints are normal.”
The records show that the claimant was advised to rest his back.
4. On 16 April 1997, the day after his discharge from the Army, he made a claim for a disablement pension under the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 1983 (SI 1983/883) on the ground that he had suffered a back injury as a result of his service. He attended a medical examination on 25 July 1997. In the course of the examination, he said that, after he had been posted to Hong Kong late in 1996, he was required to do training and perform other duties involving heavy lifting, which he had been told not to do by the medical officer. The examining doctor was of the opinion that the claimant could walk up to 2,000 metres without severe discomfort and he described the function of the claimant’s back as “some restriction of lumbar movements with pain”. On 26 August 1997, the condition “spondylolysis L4” was accepted as having been aggravated by service and disablement was assessed at one to five per cent for an indeterminate duration on an “interim” long-term assessment basis. It is clear from the certificate issued by the medical adviser that the reasoning behind the decision was that it was considered that there had been no significant back injury during the claimant’s service and that the “[b]asic injurious process must therefore be congenital and due to injury pre-service”. However, service aggravation could not be excluded and was accepted in view of the burden of proof in cases where a claim is made within seven years of service. The degree of disablement was regarded as low. The “interim” nature of the assessment shows that the possibility of future service-related deterioration was not excluded but the long-term nature of the assessment shows that it was not considered likely to manifest itself in the near future, if at all.
5. A disability gratuity of £1,706 was paid in lieu of a...
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