TB CAF 3214 2013
| Jurisdiction | UK Non-devolved |
| Judge | Mr Justice Charles |
| Judgment Date | 22 October 2014 |
| Neutral Citation | 2014 UKUT 477 AAC |
| Subject Matter | War pensions and armed forces compensation |
| Respondent | Secretary of State for Defence (WP) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CAF 3214 2013 |
| Appellant | TB |
[2015] AACR 20
(LA and others v Secretary of State for Defence (WP)
[2014] UKUT 477 (AAC))
Mr Justice Charles CAF/3206/3211/3214/3217/3220/
22 October 2014 3226/3229/3232/3237/3242/2013
War disablement pension – Naval Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 2006 – whether article 41(5) test correctly applied
The appellants unsuccessfully claimed war pensions under article 41 of the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 2006 on the basis that their disablement (or their former partner’s death) was attributable to exposure to ionising radiation while serving during the nuclear testing programme in the 1950s and 1960s. Following a joint hearing the First-tier Tribunal (F-tT) rejected their appeals holding that it had not been shown that there was such exposure or that it had led to the claimed conditions. In assessing the claims the F-tT had to apply the article 41(5) test of the 2006 Order which required that where, upon reliable evidence, a reasonable doubt existed whether the relevant medical conditions was attributable to military service, then the benefit of that reasonable doubt should be given to the claimant. The appellants appealed against the decision of the F-tT to the Upper Tribunal (UT) and the issue before it was whether the F-tT had applied the article 41(5) test correctly or had adequately explained how it had done so.
Held, allowing the appeal, that:
- the article 41(5) test placed an onus on the claimant to establish by reliable evidence, which was neither fanciful nor worthless, possibilities which indicated that a reasonable doubt existed as to whether the conditions set out in article 41(1) were fulfilled (paragraphs 72 to 79)
- a principled approach based on the evidence was required in the application of the test and so the F-tT had to carry forward both (a) those matters about which it had no reasonable doubt, and (b) those matters which it regarded as possibilities (including its reasons for its assessment), into (c) the judgmental exercise where, by reference to (a) and (b), it should explain the reasons for its conclusion on whether the article 41(5) test had been satisfied (paragraphs 87 to 92)
- that judgmental exercise involved an evaluation of the respective cases of the parties by reference to all of the competing evidence and argument and on that basis (a) the relative strengths and weakness of those cases, (b) their ingredients and so the possibilities they advanced, and (c) the matters they relied upon (including those about which they assert the decision-maker can have no reasonable doubt) (paragraphs 98 to 103)
- that judgmental exercise may commence at the first stage of the process, as an evaluation of the evidence and arguments advanced by the respondent in determining what was a possibility to be carried forward or what matters the decision-maker had no reasonable doubt about. It was not a rigid approach but importantly it was based on the identification and evaluation of possibilities and effective certainties (not findings of fact made on the balance of probabilities or an approach based on what expert evidence was preferred (paragraphs 100 to 103);
- the F-tT erred in law as it failed to identify possibilities but instead made findings by applying the normal civil standard of proof (balance of probabilities) or a similar standard, including preferring the evidence of one expert to another, rather than determining whether the evidence so rejected raised a possibility that needed to be carried forward in the decision-making process (paragraphs 111 to 113);
- alternatively, and additionally, the F-tT failed to adequately explain how it reached its decisions on a proper application of the article 41(5) test (paragraph 199).
The judge set aside the decision of the F-tT and remitted the appeal to a differently constituted tribunal to be re-decided in accordance with his directions.
DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
DECISION:
- All the appeals are allowed.
- Directions as a consequence of that decision will be given at or after a further hearing on a date to be fixed before Charles J with a time estimate of a day.
- Two working days before the date fixed for that hearing the parties are to exchange statements setting out the directions they respectively seek together with skeleton arguments in support thereof.
SUMMARY OF REASONS
(1) These appeals were heard over ten days and involved the consideration of a large amount of documents, authorities and arguments. They relate to claims made under Article 41 of the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 2006 (SI 2006/606) (the SPO), based on the impact on the claimants of the British atomic tests carried out in the 1950s and early 1960s.
(2) Although the reasons for my decision that follow are lengthy their kernel can be stated shortly and I hope that such a statement will assist the reader to follow them.
(3) At the heart of the appeals are the issues whether the F-tT applied the test set by article 41(5) of the SPO correctly and further or alternatively adequately explained how they had done so.
(4) That test (the article 41(5) test) is:
“Where, upon reliable evidence, a reasonable doubt exists whether the conditions set out in paragraph (1) are fulfilled, the benefit of that reasonable doubt shall be given to the claimant.”
(5) In short I conclude that:
- this test places an onus on the claimant to establish by evidence that is not fanciful or worthless (and so reliable) possibilities that he asserts found the existence of that doubt,
- the decision-maker must carry forward:
(a) such possibilities, and
(b) matters about which he has no reasonable doubt,
and so the ingredients of the claimant’s case into the judgmental or weighing exercise of deciding whether the article 41(5) test is satisfied,
- that judgmental exercise involves an evaluation of the respective cases of the parties by reference to all of the competing evidence and argument and thus on that basis:
(a) the relative strengths and weakness of those cases,
(b) their ingredients and so the possibilities they advance, and the matters they rely on (including those about which they assert the decision-maker can have no reasonable doubt),
- that judgmental exercise may come into play at the first stage of the process as an evaluation of the evidence and arguments advanced by the respondent may at that stage be taken into account in determining what is or is not a possibility to be carried forward or what matters the decision-maker has no reasonable doubt about, and
- this is not a rigid approach but importantly it is based on the identification and evaluation of possibilities and effective certainties and it is not based on findings of fact made on the balance of probabilities that are thereafter treated as established facts (or effective...
To continue reading
Request your trial