Upper Tribunal (Administrative Appeals Chamber)

 

DECISION OF THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

 

The claimant’s appeal to the Upper Tribunal is allowed. The decision of the Plymouth First-tier Tribunal dated 13 October 2011 involved an error on a point of law, for the reasons given below, and is set aside. It is appropriate for the Upper Tribunal to re-make the decision on the preliminary issue that was before the First-tier Tribunal (Tribunals, Courts and Enforcement Act 2007, section 12(2)(b)(ii)). That decision as re-made is the claimant has a right of appeal against the decision notified in the letter dated 4 May 2010 to him from the Service Personnel & Veterans Agency, so that his case is not to be struck out as out of jurisdiction and the appeal against that decision is now to proceed to be determined.

 

 

REASONS

 

1. There has unfortunately been some delay since the final round of written submissions in the Upper Tribunal was completed. It was thought that the decision of Judge Rowland in appeals CAF/1238/2011 – CAF/1244/2011 might potentially contain something relevant to the present case on which further comments would be needed. That decision was signed on 26 September 2013 and in the event does not contain anything contrary to what is now common ground between the parties.

 

The background

2. The claimant served in the Royal Marines from 11 February 1980 to 10 February 1989. He was awarded a disablement pension under the Naval, Military and Air Forces Etc (Disablement and Death) Service Pensions Order 1983 for a number of conditions on claims made from 1989 to 2001. Crucially for the present case, on 21 January 2002 he made a claim for the conditions osteoarthritis left knee and osteoarthritis right knee. On 30 September 2002 the Secretary of State notified the claimant of the rejection of those claims, it having been decided that the conditions were neither attributable nor aggravated by service. The claimant appealed and the appeal was listed for hearing by what was then the Pensions Appeal Tribunal (PAT) on 26 November 2003. As described in paragraph 5 of the decision of the First-tier Tribunal of 13 October 2011, the claimant suffered a heart attack (apparently on 15 November 2003: page 29 of the Upper Tribunal papers) and was in hospital as an in-patient. He got someone to send a fax to the London office of the PATs (on 20 November 2003) to say that he could not attend for those reasons and asking for an adjournment. I agree with the tribunal of 13 October 2011 that that message could not have been transmitted to the PAT in Plymouth because it is inconceivable that any PAT could, in the face of that information, have done as the PAT of 26 November 2003 did and proceeded in the absence of the claimant to disallow his appeal.

 

3. The claimant applied for the PAT’s decision to be “overturned” on the ground of his having been unable to attend. The then President of PATs replied to the claimant on 10 February 2004, after confirming that the fax mentioned above had been received and that the file indicated that neither the fax nor any message about its contents was forwarded to the PAT in Plymouth, that he regretted that he had no power to overturn the PAT’s decision because the Pensions Appeal Tribunals Act 1943 gave no power to the Lord Chancellor to make a rule authorising the President to set aside a PAT decision. That was a reference to the Pensions Appeal Tribunals (England and Wales) Rules 1980 as then in force. The President suggested that the claimant had the alternatives of asking the Secretary of State to join in a joint application to set aside (under s.6(2A) of the 1943 Act) or of applying for permission to appeal to the High Court. The claimant evidently contacted the Veterans Agency who replied on 22 March 2004 (page 34) to say that the President appeared to have overlooked rule 20(5) of the 1980 Rules and that the claimant might like to bring that to his attention.

 

4. Rule 20(2)(a) authorised a PAT to decide an appeal in the absence of a claimant or representative unless satisfied that there was a sufficient reason for the absence. Then paragraph (5) provided:

 

“(5) Where an appeal has been determined under paragraph (2)(a) and the appellant applies to the President, without undue delay, for the decision to be set aside, the President may, if after affording each party a reasonable opportunity to make representations he considers that the interests of justice so require, grant the application and arrange for the appeal to be re-heard before a differently constituted tribunal; and he may make such further order as he thinks fit.”

 

5. The claimant wrote to the President again, in a letter that is not copied in the papers. The President replied in a letter dated 30 March 2004 (of which only the first page is copied in the papers) that in his view rule 20(5) was not validly made under the 1943 Act, relying on the decision of the High Court in Secretary of State for Defence v President of the Pensions Appeal Tribunals (England and Wales), David Donald Jones (interested party) [2004] EWHC 141 (Admin). I agree again with the tribunal of 13 October 2011 that the President’s view was misguided and that in fact the Jones case is clear authority that rule 20(5) was validly made under paragraph 5(1)(a) of the Schedule to the 1943 Act. I shall come back when discussing the decision of the tribunal of 13 October 2011 to the question whether there was anything that that tribunal or anyone else could have done about the President’s failure to use rule 20(5).

 

6. The claimant appears to have taken no further formal steps at the time to challenge the decision of the PAT of 26 November 2003. That was the factual basis on which the tribunal of 13 October 2011 proceeded. The first formal challenge was on the review application form signed by the claimant on 24 March 2010 and treated as made on 5 February 2010 as the date of first contact with the Veterans Welfare Service (now copied at pages 109 to 122 of the papers). He stated that the arthritis in his knees had worsened severely since 2002 and explained why he traced the source of those problems back to his service. He also mentioned a change in his medication. In relation to that review application the letter dated 4 May 2010 from the Service Personnel & Veterans Agency was as follows:

 

“The conditions Osteoarthritis Left Knee + Osteoarthritis Right Knee were rejected as being neither attributable to nor aggravated by service and these conditions were upheld by the Pension Appeal Tribunal on 26/11/2003. The Secretary of State considers there are no grounds to review the entitlement decision.”

 

7. The claimant lodged an appeal against that decision. It is not entirely clear to me on what date that intention was first communicated to the Secretary of State, but no point is taken on time limits. The case was eventually sent to the First-tier Tribunal for consideration and a hearing was directed. The Secretary of State’s submission was, relying on the decision of Underhill J in R (on the application of Secretary of State for Defence) v Pension Appeal Tribunal [2008] EWHC 2168 (Admin), commonly known as Hornsby, that a decision that there are no grounds to undertake a review is not appealable under the 1943 Act.

 

The decision of the First-tier Tribunal of 13 October 2011

8. The claimant attended the hearing on 13 October 2011 with a representative from the Royal British Legion (RBL). In the best traditions of the PATs as carried on in the War Pensions and Armed Forces Compensation Chamber, the tribunal gave the most careful consideration to whether there were any arguments that could possibly assist the claimant. The reserved decision issued on 10 November 2011 and rejecting the claimant’s appeal was long and detailed. It identified three possible routes: (i) setting aside the decision of the PAT of 23 November 2003 under the PAT Rules applying at the time; (ii) setting aside that decision under the Tribunal Procedure (First-tier Tribunal) (War Pensions and Armed Forces Compensation Chamber) Rules 2008; and (iii) allowing the appeal against the refusal to review under the powers in article 44(3) of the Naval, Military and Air Forces Etc (Disablement and Death) Service Pensions Order 2006 (the SPO). The tribunal found none of those three routes open to the claimant. In brief, on (i) it held that the powers given to the President under the 1980 Rules no longer existed on the revocation of those Rules on 3 November 2008 as part of the transition to the new system of First-tier Tribunals and that there were no proceedings pending on 3 November 2008 so as possibly to bring any transitional provisions in Schedule 4 to the Transfer of Tribunal Functions Order 2008 into play. On (ii), it held that the powers to set aside under the Tribunal Procedure Rules could only be exercised in relation to a decision of a First-tier Tribunal and not a PAT. On (iii), it held that, following Hornsby, there was no right of appeal against a refusal to review under article 44(3) and, in any case, even if grounds for review could be examined, there had been no relevant change of circumstances since 26 November 2003. Accordingly, at least by implication, it was ruled that there was no substantive appeal before the tribunal for decision.

 

9. Article 44(1) and (3) of the SPO provide:

 

“44. – (1) Subject to the provisions of paragraphs (3), (4) and (5) and to the provisions of paragraph (8) –

 (a) any decision accepting or rejecting a claim for pension; or

 (b) any assessment of the degree of disablement of a member of the armed forces; or

 (c) any final decision that there is no disablement or that the disablement has come to an end

may be reviewed by the Secretary of State at any time on any ground.

 

(3) Any assessment or decision made, given or upheld by the Pensions Appeal Tribunal under … the Pensions Appeal Tribunals Act 1943 or the First-tier Tribunal may be reviewed by the Secretary of State at any time if the Secretary of State is satisfied that there has been a relevant change of circumstances since the assessment or decision was made, including any improvement or deterioration in the disablement in respect of which the assessment was made.”

 

The appeal to the Upper Tribunal

10. The claimant was given permission to appeal against the decision of the tribunal of 13 October 2011 by the then President of the War Pensions and Armed Forces Compensation Chamber, Judge Bano. I gave directions that the Secretary of State’s submission on the appeal was to deal with the decision of a three-judge panel of the Upper Tribunal in Secretary of State for Defence v RC (WP) [2012] UKUT 229 (AAC), now to be reported as [2013] AACR 4, issued after Judge Bano’s grant of permission. There, both the majority and the minority declined to follow Hornsby. The majority (Judge Rowland and myself) held that a refusal to review under any part of article 44, including paragraph (3), is appealable under the appropriate section of the 1943 Act.

 

11. In the submission dated 19 September 2012 from Gillian Jackson of the Treasury Solicitor’s Department on behalf of the Secretary of State it was accepted that in consequence the tribunal of 13 October 2011 went wrong in law in so far as it based its decision on the claimant’s having no right of appeal against the decision notified in the letter of 4 May 2010. However, it was submitted that, since the tribunal had in the alternative concluded that there had been no relevant change of circumstances, that error of law was not material to the outcome. It was further argued in paragraph 14 that any worsening of the condition of the claimant’s knees after 26 November 2003 could not have been a relevant change of circumstances on the question of entitlement (attribution to or aggravation by service), as opposed to any review on assessment of an accepted entitlement condition. It was said that the main emphasis of the claimant’s case had throughout been on his having been unfairly deprived of the opportunity to put his case to a PAT in 2003 and that he had put forward scarcely any argument as to how any subsequent worsening could impact on the connection of his knee conditions with service. Rather, he reiterated his arguments based on events during service. It was submitted that the appeal should have been struck out for having no reasonable prospect of success under the principles put forward in paragraph 79 of RC:

 

“79. Secondly, where an appeal in England and Wales against a decision that there are no grounds of review appears hopeless, it is open to the Secretary of State to apply to the First-tier Tribunal to have the appeal struck out under rule 8(3)(c) of the 2008 Rules on the ground that there is no reasonable prospect of the appeal succeeding. Since a decision whether or not to strike out a case is made by a judge sitting alone, such an application may not be appropriate if it turns on medical issues. An application might, however, be made where, for instance, an appeal is brought against a decision that there are no grounds for a review under article 44(3) and it is clear that the claimant does not allege any change of circumstances since the material decision of the First-tier Tribunal but merely asserts its decision was wrong”

 

12. In his reply dated 14 December 2012 on behalf of the claimant, Mr Glyn Tucker of the RBL drew attention to paragraph 4 of the decision of the tribunal of 13 October 2011:

 

“The Tribunal, with the consent of the Appellant, adopted the submission made at page 1 of the Response that it should treat the question of whether the Appellant had any right of appeal as a preliminary issue rather than hearing the appeal in full before determining that issue. Accordingly, the Response contained fewer materials than would normally be the case and in particular the Tribunal had no details of:

either the Appellant’s service in the Royal Marines

or his claimed disablements

or the reasons why they had not been accepted by the Respondent.”

 

He submitted in paragraph 10 in explaining why the final suggestion for the Secretary of State was not accepted that:

 

“[h]aving decided that they were bound by the Hornsby decision the tribunal were not required to make any findings regarding a relevant change of circumstances and their remarks were in that sense `obiter’. They were in any event not in a position to make such findings because, as noted in paragraph 4 above, they had none of the details required to make them. Whether the osteoarthritis of one or both of the knees was due to service or to constitutional or other factors requires, it is submitted, consideration of the progress of the disease. In his application for a review the Appellant reported a severe worsening of the condition. The Appellant’s grounds of appeal are only partly focused on the past injustice of the PAT decision in 2003. Paragraph 79 of [RC] states that since a decision whether or not to strike out a case is made by a judge sitting alone, such an application may not be appropriate if it turns on medical issues.”

 

13. Following that round of submissions I issued a direction asking for the parties’ views on, first, whether an application such as made by the claimant in February 2010 could be regarded as a new claim for the conditions identified, rather than merely as an application to review the decision of the PAT of 26 November 2003, and, second, if not, what was the meaning of “relevant” in the context of review of a decision rejecting a condition as not connected with service, especially in the light of the much wider powers of review that would have been available if the claimant had not exercised his right of appeal in 2002.

 

14. In their replies, the representatives were agreed, in answer to the first question, that following a rejection of a condition as not connected to service there could not under the SPO be a new claim made for the same condition. The effect of the rejection could only be altered through the process of review. In answer to the point that there was no express prohibition of such new claims in the SPO, Ms Jackson for the Secretary of State pointed out that there was no express provision allowing them either. Indeed, she drew attention to the provision in article 36(3) for the withdrawal of a claim not to prejudice the making of a further claim, which made the absence of anything similar in relation to rejected claims more pointed. The main basis for the submission was, though, that to allow new claims following rejection would undermine the finality of a rejection decision in a way that was incompatible with the structure of the SPO as a whole.

 

15. As to the meaning of “relevant”, the submission for the Secretary of State continued to be that a deterioration of a condition cannot of itself ever be a relevant change of circumstances in relation to a decision whether the condition is attributable to or aggravated by service. Paragraph 8 of the reply continued:

 

“It may be that when considering the facts of a particular case a change in scientific or medical understanding of the cause of a specific condition [a question raised in my direction] may amount to a `relevant’ change of circumstances on the facts of a case. It would be anticipated that this would be of a more general development in medical research rather than a review of the progression of a disease in a specific individual. However, and in any event, the Secretary of State does not read the suggestion in the Appellant’s submission that progression of a disease is a relevant consideration to whether a condition is attributable to or aggravated by service in the narrower way suggested in the directions. It is however difficult to assess this in the abstract and without any medical evidence at all in support of a suggestion that the cause of osteoarthritis in the knee(s) can be identified or assessed by progression of the disease. At present there is simply no basis for this submission and no grounds on which the Appellant can show that there has been a relevant change of circumstances such that article 44(3) is applicable.”

 

16. Mr Tucker’s submission in reply was that:

 

“A relevant change of circumstances for the purposes of article 44(3) is … any change of circumstances that shows the decision under review to be incorrect. Osteoarthritis in the knee(s) can affect susceptible individuals over time through normal wear and tear but such individuals are likely to be more severely affected where their knees have been damaged through injury or overuse. The progression of the Appellant’s osteoarthritis would clearly be relevant to any medical judgment of the part his accepted knee injuries and 9 years service in the Royal marines has played.”

 

Discussion – setting aside of the decision of the PAT of 26 November 2003

17. I am satisfied that the tribunal of 13 October 2011 reached the only conclusion legally open to it in concluding that it had no power under which it could set aside the decision of the PAT of 26 November 2003. Indeed, I think that it underestimated the legal obstacles in the way of such a course. Since this issue has not been pursued on behalf of the claimant before the Upper Tribunal I will be very brief.

 

18. First, if the then President of PATs is to be regarded as having made a decision in 2004 declining to set aside the PAT’s decision under rule 20(5) or any other provision of the 1980 Rules, there was simply no power given either under the 1980 Rules or the 2008 Rules for a tribunal as such to set aside such a decision of the President or regard it as a nullity or void. Such a decision could only be challenged by judicial review. However, it could possibly be considered that, as the then President had not carried out the procedure under rule 20(5) of the 1980 Rules of affording each party the opportunity to make representations and had rather stated that he had no power to embark on the procedure at all, that there was in existence an outstanding application by the claimant for setting aside that had never been adjudicated on. On that basis there would though still have been nothing that the tribunal of 13 October 2011 could have done on such an application. As it rightly pointed out, the 1980 Rules ceased to have any effect from 3 November 2008 as did the office of President of the PATs, so that even the incoming President of the new War Pensions and Armed Forces Compensation Chamber could not from then onwards have determined such an outstanding application unless some express transitional provision conferred such a power. The only piece of legislation containing powers of that type in relation to the 3 November 2008 changes is the Transfer of Tribunal Functions Order 2008. Schedule 4 (Transitional provisions) applies only where proceedings were pending immediately before 3 November 2008 before a tribunal listed in Schedule 1. The PAT in England and Wales is listed, but not the President of PATs. Thus, no functions of the President of PATs were transferred under article 3(1) of the Order to the President of the War Pensions and Armed Forces Chamber, nor were any pending proceedings to continue under Schedule 4. By the same token, no such functions of the President of PATs were transferred to the First-tier Tribunal and proceedings before the President could continue as proceedings before the First-tier Tribunal, so that the tribunal of 13 October 2011 could not exercise any of its powers under rule 35 of the 2008 Rules in relation to the decision of the PAT of 26 November 2003. Nor would there have been anything to be gained by an adjournment to enable the President of the War Pensions and Armed Forces Chamber to act because he had no powers determine any outstanding application to set aside either.

 

Discussion – review

19. It is now common ground that the tribunal of 13 October 2011 erred in law in concluding that there was no right of appeal from the Secretary of State’s decision notified in the letter of 4 May 2010. So far as the Secretary of State’s substantive powers of review are concerned, it is also common ground that the wide powers in article 44(1) of the SPO, allowing review of any decision rejecting a claim for pension on any ground, cannot apply either to the initial decision or a tribunal’s decision when the rejection has been confirmed by the tribunal. That is right because article 44(1) is expressly subject to paragraph (3) among others and the conditions in paragraph (3) must therefore operate when applicable in place of the powers in article 44(1). That was also the approach in Hornsby to the essentially identical terms of the SPO 1983, not differed from in RC.

 

20. It can also now be confirmed that the common position of the parties that, in the circumstances of the present case, no new claim for the conditions rejected in 2003 could be made in 2010 is correct, so that his only remedy is through review under article 44(3) of the SPO 2006. In one of the several inter-linked cases before Judge Rowland in CAF/1238/2011 and others a claim for an injury to the left ankle in 1982 was rejected by the Secretary of State in 1997. In 2007 the claimant made what he described as a “new claim” in respect of the 1982 incident and the left ankle. That was treated as an application for review. In the event, the Secretary of State did review the 1997 in the claimant’s favour, having accepted that there had been an inadequate investigation of the circumstances in 1997. Therefore, the claimant was probably better off through the process of review than if he was regarded as making a new claim, but Judge Rowland expressed no doubt about the propriety of treating what the claimant did in 2007 as an application for review. There is therefore nothing in that decision to displace the common position of the parties in the present case, which I consider to be in line with basic principle.

 

21. Since article 44(3) of the SPO 2006 expressly refers to PATs and First-tier Tribunals there is no obstacle to a review in 2010 of a PAT decision from 2003. Thus the crucial question in present case is whether there could be a “relevant” change of circumstances such as to meet the conditions of article 44(3). I do not have to decide whether Underwood J was right in paragraph 27 of Hornsby to accept the suggestion of leading counsel for the Secretary of State that a change in medical understanding suggesting a different aetiology for a particular condition could count, or the discovery of potentially relevant fresh evidence (although it is not clear whether that example came from counsel for the Secretary of State). For anyone familiar with review, and now revision and supersession, provisions in the area of social security, the question is immediately raised whether those examples indicate a change of circumstances, in the sense of the primary facts relevant to the case. The change of medical opinion would not indicate that anything had changed in the claimant’s condition, but could indicate that the original decision was now known to be wrong, just as would the issue of a decision by the Upper Tribunal or the courts indicating that the original decision was made on a legal basis now shown to be wrong. The emergence of new evidence in itself could equally indicate that the original decision was made on a mistaken factual basis without showing that anything had subsequently changed in the claimant’s condition. But such an approach from the social security angle would be in the context of the existence of other powers to correct decisions, including decisions of tribunals, made in ignorance of or under a mistake as to a material fact (cf  paragraphs (2), (4) and (5) of article 44) and to correct original decisions made in error of law (although not necessarily in either case from the original effective date). In relation to article 44(3) there are no such other powers of correction available. It is therefore possible that a somewhat wider approach to what is a change of circumstances, to enable correction of tribunal decisions made on a mistaken factual basis, is appropriate. I do not have to decide whether that is so because in the present case the claimant relies on what I can call a “classic” change of circumstances. He says that since 2003 his knees have got worse and he has had to change his medication.

 

22. Assuming for the moment that that is so, the issue then is whether that change is “relevant” to the decision of the PAT of 26 November 2003. I think that Mr Tucker for the claimant is right in principle that the basic test is whether the change shows, or could show, that the decision under review was incorrect. However, Ms Jackson for the Secretary of State submits that it is medically and scientifically (and perhaps conceptually) impossible for a change in the condition of the claimant’s knees to show that the decision in 2003 about the connection of that condition with service was incorrect and that there was no medical evidence to the contrary. Mr Tucker for the claimant makes the contrary submission as in paragraph 16 above, that the progress of the condition (and I add perhaps how the osteoarthritis has progressed in the knees as compared with other parts of the body) could throw light on the causes of the condition. And he says that there is no medical evidence to support the Secretary of State’s view, so that the expert medical assessment of the position can only come from a new First-tier Tribunal.

 

23. On balance, I prefer Mr Tucker’s submission. As a judge with no medical qualifications or expertise I find myself unable to exclude the possibility that the way in which a disease such as osteoarthritis progresses in the knees as compared with its presence or progress in the rest of the body might throw some light on how far the condition could be said to be related to some factor of service. In the particular context of a decision rejecting a claim on the ground of the condition not being attributable to or aggravated by service, where as decided above the claimant does not have the protection that is common for most ordinary social security benefits of being able to make a new claim for a benefit denied in the past and have the conditions of entitlement re-examined, there is justification for giving “relevant change of circumstances” a fairly wide construction. This does not open the doors to in effect admitting appeals against rejection decisions long after time-limits for appeal have expired, because the rules in Schedule 3 to the SPO 2006 on the commencing dates of awards would in general limit any new award on a successful review to the date of the application for review, subject to the possibility of an earlier date if incapacity delayed the application (paragraph 5 of Schedule 3) or if the new award is based on a change in medical opinion (paragraph 6 of Schedule 3).

 

24. Accordingly, I do not need to explore whether, if I had accepted the submission for the Secretary of State, it would have been proper in a case like the present, where the tribunal had dealt only with the right of appeal as a preliminary issue and did not consider any evidence directly related to the grounds of review under article 44(3), either to find section 12(1) of the Tribunals, Courts and Enforcement Act 2007 not satisfied, because the error of law was not material, or to exercise the discretion in section 12(2)(a) not to set the tribunal’s decision aside. I suspect that the answer would have been no. I acknowledge that in EW v Secretary of State for Defence (AFCS) [2011] UKUT 186 (AAC), reported as [2012] AACR 3 I declined to find section 12(1) satisfied on the basis that, despite erring in law, the tribunal had come to the only decision open to it in law on the undisputed facts and said in effect that it did not much matter whether that conclusion was implemented through section 12(1) or 12(2)(a). On reflection, I should have made it clearer that those statements were related to the particular circumstances of EW. Care should be taken in considering the consequences of allowing a decision made on some false legal basis to remain in place before using either section 12(1) or 12(2)(a) not to set aside a tribunal’s decision.

 

Conclusion

25. The decision of the tribunal of 13 October 2011 is set aside as involving an error on a point of law for the reasons agreed on behalf of the Secretary of State. Since the case was put before that tribunal as one limited to the preliminary issue of jurisdiction I consider it more appropriate to substitute the decision that the tribunal should have made in accordance with the legal situation as subsequently decided in RC. That means that the appeal against the decision notified in the letter of 4 May 2010 must proceed before the First-tier Tribunal in the ordinary way, which will involve the preparation of a full statement of case. In view of the length of time that has elapsed, not least I am afraid in the Upper Tribunal, the President of the War Pensions and Armed Forces Compensation Chamber may wish to give some directions as to a timetable for the progress of the appeal.

 

 

 

 

(Signed on original):  J Mesher

  Judge of the Upper Tribunal  

 

Date: 25 October 2013