Upper Tribunal (Administrative Appeals Chamber)

 

 

IN THE UPPER TRIBUNAL Appeal No.  CAF/4845/2014

ADMINISTRATIVE APPEALS CHAMBER

 

 

DETERMINATION OF THE UPPER TRIBUNAL

ON AN APPLICATION FOR PERMISSION TO APPEAL

 

 

 

Applicant: Mr Roger Paul Viggers

 

Respondent: Secretary of State for Defence

 

 

 

 

 

 

Upper Tribunal Judge Nicholas Wikeley

 

 

 

 

Tribunal: First-tier Tribunal (War Pensions and Armed Forces

Compensation Chamber)

 

Tribunal case No:  ASS/00390/2010

 

Tribunal venue: London Fox Court

 

Date: 08 July 2014

 

 

 

 

 

 

 

 

DETERMINATION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

 

I refuse permission to appeal.

 

This determination is made under section 11 of the Tribunals, Courts and Enforcement Act 2007 and rules 21 and 22 of the Tribunal Procedure (Upper Tribunal) Rules 2008.

 

 

REASONS FOR DECISION

 

The issue arising on this application for permission to appeal

1. The narrow issue arising on this application can be posed fairly shortly: did the First-tier Tribunal (“the Tribunal”) adequately explain its decision? In particular, did the Tribunal adequately explain why Mr Viggers was only entitled to a war pension at an assessment of 15-19% for the period from 27 March 1976 to 22 May 1995 when he has an existing and unchallenged assessment of 40% with effect from 23 May 1995? For the reasons that follow, I find that the Tribunal did so adequately explain its decision.

 

The background to this application for permission to appeal

2. The wider background to this application for permission to appeal cannot be put quite so shortly. Indeed, there is the possibility that Viggers v Veterans UK might become the Jarndyce v Jarndyce of the War Pensions and Armed Forces Compensation Chamber (WPAFCC), at least as regards the length of time the litigation has taken to date, although the proceedings have not yet perhaps reached truly Bleak House proportions in terms of their longevity. There is a further difference in that, unlike in Bleak House, everyone in Viggers v Veterans UK knows what the issues are.

 

3. That said, the reasoning in two previous decisions of the Pensions Appeal Tribunal (or the PAT, the forerunner of the First-tier Tribunal in the WPAFCC) in relation to Mr Viggers’s case has been found wanting by the High Court and the Court of Appeal respectively: see R (On the application of Viggers) v Pensions Appeal Tribunal [2006] EWHC 1066 (Admin) and R (On the application of Viggers) v Ministry of Defence [2009] EWCA Civ 1321. The question I have to resolve is whether the Tribunal got it right at the third time of asking – or, putting it more accurately, whether there is an arguable error of law in the third tribunal’s decision.

 

The proceedings before the Upper Tribunal

4. I held an oral hearing of this application for permission to appeal at Field House in London on 2 March 2015. Mr Viggers attended, represented by Mr M. McGhee of Adelphi Legal. Veterans UK – as the arm of the Ministry of Defence that administers the war pensions scheme now calls itself – was represented by Mr D. Snape. Both gentlemen had appeared at the hearing of the Tribunal below. I am grateful to them both for their clear and well-focussed submissions.

 

The background to the appeal before the First-tier Tribunal

5. I will deal with the background to the appeal before the Tribunal as succinctly as I can, given that a full account can be found in the judgments of the High Court and the Court of Appeal (see above). Furthermore, Mr Viggers had himself set out clearly but narrowly defined grounds of appeal in his original application for permission, arguing that the Tribunal had not taken proper account of the Court of Appeal’s judgment and had not explained the “apparent jump from their figure of 15-19% overnight to 40%”. That application was refused on the papers by Judge McKenna CP on 17 September 2014. In addition, Mr McGhee trained his forensic fire at the oral hearing on one particular (albeit lengthy) paragraph in the Tribunal’s reasons for its decision. However, some account of the previous proceedings is necessary to understand the context of the current Tribunal’s decision.

 

6. Mr Viggers served in the army from 1971 to 1976. However, in 1973 he had the serious misfortune to be hit by a vehicle driven by a drunk fellow soldier, as a result of which he suffered various injuries leading to longer term disabilities. He applied for a war pension in 1995. The Veterans Agency assessed Mr Viggers as being 40% disabled as from 23 May 1995 (“the later period”) on the basic of four conditions: a head injury, fracture to left femur, arthritis to left knee and dysthymic disorder. The aggregate assessment of disablement for the period from 23 May 1995 was increased to 60% from 1999 and then again to 70% from 2004.

 

7. Meanwhile Mr Viggers was pressing the Veterans Agency to backdate his entitlement to the date of his discharge from the army. He argued that he had been mis-advised by a DSS official and so had not claimed earlier. On 31 March 2004 a PAT allowed his appeal against the Veterans Agency’s refusal to backdate. Following that ruling, on 17 June 2004 the Veterans Agency made a disablement assessment decision in relation to the period from 27 March 1976 to 22 May 1995 (“the earlier period”). This was the decision which was under appeal to the Tribunal in the present proceedings, albeit at the third time of asking:

 

"The correct assessment of your accepted conditions fractured left femur, osteoarthritis left knee, Dysthemic Disorder [sic], and head injury (1973) for the period from 27^th March 1976 to 22^nd May 1995 is 6-14 per cent. This takes account of the fact that the osteoarthritis left knee only became manifest in 1997 and the Dysthemic Disorder was not manifest until 1993."

 

8. At this juncture it is relevant to refer to Ward LJ’s helpful summary of the framework of the relevant legislation (then) in Articles 9-11 of the Naval, Military and Air Forces (Disablement and Death) Services Pension Order 1983 (SI 1983/883, also known as the SPO), as set out in the Court of Appeal’s judgment (at [4]):

 

“ ... In summary this provides that a degree of disablement due to service of a member of the armed forces shall be assessed by making a comparison between the condition of the member as so disabled and the condition of a normal healthy person of the same age and sex, without taking into account the earning capacity of the member in his disabled condition and without taking into account the effect of any individual factors or extraneous circumstances. The degree of disablement is certified by way of a percentage, total disablement being represented by 100% and lesser degrees of disablement being assessed in bands each reducing by 10%. Assessments at 20% or more are awarded retirement pay or a pension at rates set out in the SPO. If, however, the assessment of disablement is less than 20%, then the serviceman is only awarded a gratuity: that is to say a lump sum payment, depending upon whether his disablement falls within the bracket of 1-5% or 6-14% or 15-19%.”

 

9. Mr Viggers then appealed against both the 6-14% assessment for the earlier period and against the 70% assessment for that part of the later period that ran from 2004. On 18 March 2005 a PAT dismissed both those appeals, confirming the 6-14% assessment for the earlier period and in fact reducing the award from 2004 from 70% to 40%. At that time the only way to challenge a PAT decision was by way of judicial review. On 26 April 2006 Crane J quashed both decisions on the grounds of inadequate reasoning (see especially the High Court’s judgment at [24]-[28] as regards the earlier period). Crane J. also observed that “I do not necessarily conclude that given proper reasons either decision would be one that no rational tribunal could reach and I express no view on what the outcome of the further hearing should be” (at [30]).

 

10. Mr Viggers’s appeal against the decision of 17 June 2014 accordingly went back for re-hearing before a further PAT. On 12 April 2007 the new PAT, like its predecessor, confirmed the 6-14% assessment for the earlier period. On 18 December 2008 the High Court dismissed a further application for judicial review against the second PAT decision as regards the earlier period, but the Court of Appeal then allowed Mr Viggers’s appeal on 10 November 2009. The Court of Appeal accordingly quashed the second PAT’s decision and remitted the case back to the Pensions Appeal Tribunal or, in Ward LJ’s memorable turn of phrase, and highlighting the dangers of relying on automatic spellchecking corrections, “whatever level of tribunal now takes its place in the brave new world of Carwash LJ” (at [23], presumably a reference to Carnwath LJ, the then Senior President of Tribunals).

 

The First-tier Tribunal’s decision and reasoning

11. The PAT having been replaced by the First-tier Tribunal as a result of the Tribunals, Courts and Enforcement Act 2007, the Tribunal re-heard the appeal on 8 July 2014. The Tribunal’s unanimous decision was to allow the appeal to the extent of raising the percentage assessment of disablement from 6-14% to 15-19% for the earlier period. The Tribunal subsequently issued a detailed 5-page decision setting out its reasons. There were three pages of careful findings with supporting reasons for the four conditions in issue. The Tribunal found there was no remaining disability resulting from the head injury, which it accordingly rated at nil%. The fractured left femur and arthritis of the knee were assessed at 6-14% for the earlier period. The Tribunal took the view that 6-14% was also an “ample assessment for any disability relating to Dysthymic Disorder attributable to service” for the same period. Given its findings overall, and especially the latter “ample assessment”, the Tribunal concluded that so far as the earlier period was concerned “a reasonable and appropriate composite assessment for all of the accepted conditions is 15-19%”. There has been no direct challenge to those findings or the Tribunal’s reasoning along the way to those factual conclusions.

 

12. The Tribunal then, in its final substantive paragraph, dealt with the issue of the existing 40% assessment for the later period as follows:

 

“8. ... The appellant was granted a 40% assessment starting from the day after this assessment period, being 23^rd May 1995. The Tribunal was invited by the appellant’s representative to take the 40% assessment as the starting point in its consideration of this appeal and to explain the apparent significant increase in assessment. The Tribunal was provided with the Certificate of Assessment dated 8^th February 1996, which granted the 40% assessment and notes that the reasons given are brief in the extreme. The section at which reasons are normally given simply refers to other documents and the Certificate provides the Tribunal with no reasoned analysis of the decision whatsoever. This decision was not the subject of an appeal and is not before the Tribunal. The decision was made by the Secretary of State and has not been judicially reviewed. Had the 40% assessment been the subject of an appeal, the Tribunal may well have taken a different view. In coming to its conclusion, this Tribunal has had the advantage of submissions on behalf of the appellant, extensive medical records and oral evidence from the appellant as well as his witness. This Tribunal has carefully considered all of the evidence in this appeal and does not view that its starting point should be the apparent cursory and unreasoned certificate for the later period. In any event the appellant’s medical records show that he only started on Paroxetine (an antidepressant of the selective serotonin re‑uptake inhibitor ((SSRI)) class) at the very end of the relevant period. In 1997 he was prescribed Vanlafaxine (an antidepressant of the serotonin and noradrenaline re‑uptake inhibitor ((SNRI)) class) which the British National Formulary describes as more effective than SSRI for major depression of at least moderate severity. In addition, there is evidence of deterioration in the appellant’s physical condition in later medical reports which may have played a part in the Secretary of State’s decision making process. This Tribunal is satisfied on the evidence that 15‑19% is an appropriate and ample assessment for the period under appeal. Without attempting to undermine the decision of the Secretary of State in making a 40% assessment for the later period, this Tribunal finds no evidence of which to conclude that this appellant could be assessed at anywhere near 40% for the period under appeal.

 

9. The Tribunal considers that an assessment of 15-19% is reasonable for the above period.

 

10. The appeal is allowed.”

 

The submissions on behalf of the Appellant

13. In his written and oral submissions to the Tribunal below, Mr McGhee had emphasised several passages in the judgment of the Court of Appeal. In particular, he had stressed that the assessment of disablement at 40% as from 23 May 1996 was unchallenged, and so constituted the starting point (or, as Ward LJ put it in terms of the sequence of events, the end point; see at [22]) for the Tribunal’s decision-making process. Both of the previous PATs had singularly failed to explain the sudden leap from 14% to 40%. There was no intervening event that could cause such a “jump”. It was the Tribunal’s responsibility, Mr McGhee argued, to justify a rational assessment for the earlier period which was consistent with the 40% assessment from the start of the later period.

 

14. In the permission hearing, Mr McGhee nailed his colours even more firmly to the mast of the Court of Appeal’s judgment (or rather judgments, given that all three Lords Justice of Appeal delivered judgments). Mr McGhee argued the assessment of 40% as from 23 May 1996 had to be taken as the starting point for the previous 19 years. Both Ward LJ and Sullivan LJ had referred to the importance of consistency in public law administrative decision making (at [22] and [30] respectively). Yet the Tribunal at the re-hearing had expressly stated that it did “not view that its starting point should be” the assessment for the later period. So, he argued, the Tribunal’s assessment of 15-19% had effectively ignored the subsequent 40% assessment. Moreover, the previous PAT had failed to explain the “jump” from 14% to 40% (see Ward LJ at [23]), and the present Tribunal had fallen into the same trap. Furthermore, the Tribunal’s comments about the 40% assessment itself were impermissible, as they were in effect questioning an assessment that had been left unchallenged and indeed was, by law, a final assessment (see now Article 42(14) of the Naval, Military and Air Forces Etc (Disablement and Death) Service Pensions Order 2006 (SI 2006/606)); see further Etherton LJ in the Court of Appeal at [25] and [27]).

 

What actually did the Court of Appeal decide?

15. It is important in the context of this application to establish what the Court of Appeal actually decided in R (On the application of Viggers) v Ministry of Defence. It is just as important to be clear about what their Lordships did not decide.

 

16. So what did the Court of Appeal decide? The unanimous decision of the Court of Appeal was that the decision of the second PAT could not stand. Ward LJ expressed the basis for his decision in terms of a failure on the part of the PAT to provide proper reasoning (at [24]) but was very clear that the PAT’s inadequate treatment of the linkage with the start of the 40% assessment was a major aspect of this failure (at [22] and [23]). Etherton LJ referred to both a failure to take into account a material factor (the 40% assessment from the start of the later period) and an inadequacy in the PAT’s reasons (at [28]). Sullivan LJ likewise relied on the twin bases of a failure to have regard to a material consideration and/or a failure to give adequate reasons (at [32]).  

 

17. But what then did the Court of Appeal not decide? The Court of Appeal did not decide that the PAT should have arrived at an assessment of disablement ending on 22 May 1995 which aligned closely with the 40% assessment as from the following day.

 

18. Ward LJ explained it in the following way (at [23]):

 

“Thus, if the tribunal looking at the 1976 to 1995 period were conscientiously to conclude that the degree of disability would never have matched the 40%, or, bearing in mind that 40% is spread over a period, within a degree or two of 40 %, it was not precluded from saying so. But if it did come to such a conclusion it behoved it to spell out precisely why it was driven to disagree with the earlier assessment...”

 

19. Etherton LJ observed as follows:

 

“26. Accordingly, since an assessment of 6-14% for the earlier period appears to throw up a discrepancy or inconsistency with the assessment of 40% for 1995/1996, that was a matter to which the Tribunal should have had regard. If the Tribunal was satisfied that, notwithstanding that apparent discrepancy, its assessment of 6-14% should remain, it should have explained its view. The discrepancy does not mean that the Tribunal was plainly wrong in its assessment of the earlier period. If its members, which included a medical expert, remained of the view that the proper assessment in the light of all the evidence adduced before it was 6-14% for the period 1976 to 1995, then it would have been sufficient for the Tribunal to say that, having had regard to and having taken into account the 40% assessment, nonetheless in the light of all the evidence before it and its members' expertise it concluded that the assessment should be that of 6-14% for the earlier period.”

 

20. Likewise Sullivan LJ expressed the following view (at [29]):

 

“I say that the assessment of 40% was clearly relevant because, as a matter of common sense, an assessment of the extent of the appellant's disablement for the period beginning on the day after the end of the period in issue before the tribunal could not rationally have been dismissed as irrelevant in the absence of any evidence of a significant change of circumstances between 22 and 23 May 1995. That does not mean that the tribunal was bound to accept the 40% figure as the appropriate assessment immediately upon exploration of the period in question. The tribunal was required to use its own expertise, including that of the medical member, when determining the appropriate assessment for the period in question.”

 

21. In a nutshell, it seems to me that the unanimous guidance of the Court of Appeal to the new Tribunal was accordingly that (i) the 40% assessment in place as from the start of the later period was plainly a relevant consideration; (ii) the 40% assessment was not binding as regards the assessment of disablement for the earlier period; but (iii) if the Tribunal was going to reach an assessment which was on the face of it markedly inconsistent with the 40% finding as from 23 May 1995 then it needed to provide a proper explanation.

 

The Upper Tribunal’s decision

22. I bear in mind first that the Tribunal’s reasoning must be read as a whole. As already noted, the Tribunal provided several pages of detailed fact-finding and reasoning on the respective levels of disablement for the four certified conditions, covering the 19 year period from 1976 to 1995. Again, as previously noted, there has been no challenge to those findings (some of which I refer to further below), and understandably so. As Mr Snape argued, they demonstrate the thorough way in which the Tribunal went about its decision-making. On all the evidence that it had, the Tribunal had reached the conclusion that the appropriate aggregate assessment for the whole period was 15-19%.

 

23. The Tribunal then addressed the issue of the relevance of the 40% assessment, which was in place as from 23 May 1995 (see [12] above). In my view the Tribunal properly applied the guidance of the Court of Appeal. An assessment of 15-19% for the period ending on 22 May 1995 was plainly some way off the final assessment of 40% that was in place from 23 May 1995. So what was the explanation for this apparent inconsistency? Reading the paragraph as a whole, and against the background of the rest of the Tribunal’s reasoning, the Tribunal was essentially making two points.

 

24. The first point was that the Tribunal was singularly unimpressed by the 40% assessment in place from the start of the later period. The Certificate of Assessment in question was “brief in the extreme” and contained “no reasoned analysis”. It was “cursory and unreasoned”. Indeed, had the later period been part of the subject matter of the present appeal, the Tribunal sent a very clear signal that it regarded an assessment of 40% as from 23 May 1995 as over-generous (“the Tribunal may well have taken a different view”). It is axiomatic that the weight to be attached to any particular piece of evidence is a matter for the fact-finding tribunal. It was entirely open to the Tribunal to express its reservations about the quality and rigour of the decision resulting in the 40% assessment. Even so, the Tribunal recognised that it could not undermine the binding nature of the 40% assessment on the later period, and so respected the requirements of Article 42(14).

 

25. In truth this is a not uncommon situation in other analogous public law contexts. For example, in Social Security Commissioner’s reported decision R(M) 1/96 it was held that where a fixed term award of mobility allowance (now disability living allowance or personal independence payment) expires and is not renewed, and the renewal decision is then appealed unsuccessfully, a tribunal should explain why it is not renewing the previous award, unless it is obvious from its findings. Not infrequently, in deciding such appeals, tribunals in the Social Entitlement Chamber record their view that the original award was made in error, given all the evidence that has now come to light. Such an observation does not affect the legality of the original award, but it goes a long way to explaining why the tribunal has refused to make a renewal award. The context of the present appeal is the other way round, in that it is the later award, not the earlier award, which the Tribunal thinks may well be over-generous, but the principle remains the same. The principle is that the Tribunal needs to explain why it has taken a different view in relation to the proper level of assessment for a contiguous period of entitlement.

 

26. The second point was that following its detailed analysis of the evidence for the earlier period with which it was concerned, the Tribunal reaffirmed its conclusion that the 15-19% assessment was both “appropriate and ample”. In doing so, the Tribunal highlighted a number of its findings which assumed particular relevance in this context. First, as regards Dysthymic Disorder, a relevant anti-depressant had only been prescribed “at the very end” of the earlier period. Second, a stronger anti-depressant was prescribed in 1997, i.e. shortly after the start of the later period. Third, there was evidence of physical deterioration in medical reports for the later period which “may have played a part in the Secretary of State’s decision making process”. There were, therefore, different degrees of disablement before and after May 1995 which went to justify the apparently inconsistent assessments.

 

27. Mr McGhee, in his submissions, placed considerable emphasis on the “jump” between the two levels of assessment. It was irrational, he said, for the Tribunal to arrive at an assessment of 15-19% effective as at 23:59 hours on 22 May 1995 which then transmuted only one second later into a 40% assessment. He relied in particular on Ward LJ’s observations in the Court of Appeal’s judgment at [23]. However, with respect this focus on the “jump” is rather simplistic. I say that for two reasons.

 

28. First, the Tribunal’s assessment of 15-19% was an averaged assessment over a 19-year period. After the immediate effects of the road traffic accident and the consequential surgery had been weathered while in service, there was relatively little disablement from the accepted conditions at the outset of the earlier period. For example, in an earlier passage in its statement of reasons the Tribunal had recorded the Appellant’s acceptance that “there is no medical evidence regarding his left leg, either his femur or his knee, from the time that he left service until he made his claim in 1995”. Similarly, as regards the mental health condition, the Tribunal had expressly found that “the referral for medical assistance at the end of the relevant period was related to domestic problems and unemployment and not an indication of his underlying condition for the significant majority of the relevant period”. The obvious inference from these findings is that the Tribunal regarded the level of disablement as at the low end of the scale for much of the period, only rising towards the end of the earlier period. This was embodied in the individual averaged assessments of 6-14% for both the physical and mental health issues and the aggregate assessment of 15-19%.

29. Second, the Tribunal had in any event made it clear that it regarded the assessment of 40% as from 23 May 1995 as being on the high side. It had given its reasons for that view, which had involved the evaluation of the evidence as an expert tribunal (see [26] above).

 

30. It follows that the “jump” discrepancy is in any event arguably more apparent than real. Given those factors, I am satisfied that the Tribunal adequately explained how it reconciled its assessment of 15-19% for the earlier period with the extant 40% assessment for the later period starting immediately afterwards.

 

31. Thus the short answer to this application is that whereas both the first and the second PATs lamentably failed adequately to explain the reasoning behind their assessments, this Tribunal did not fall into the same error. There is, therefore, no basis to grant permission to appeal. I refuse the application accordingly.

 

A question of form

32. However, it would be remiss of me not to make a couple of observations about the format of the Tribunal’s decision in this case.

 

33. First, the Tribunal issued a very clear decision notice on the day of the hearing. This was on the standard WPAFCC decision template with the royal crest at the top of the page. However, the Tribunal’s 5-page statement of reasons was simply issued later as a typed document with the case details summarised by way of a heading, with no royal crest or indeed any other indication of official status. It could easily be mistaken for a working draft of the Tribunal’s reasons. Whilst obviously I recognise that tribunals are more informal than courts, the fact remains that the Tribunal’s statement of reasons for its decision is an important judicial document which defines the parties’ rights and obligations. Its provenance should be obvious at a glance – hence the need for the royal crest to make it clear this is a judicial act.

 

34. Secondly, the Tribunal’s 5-page statement of reasons comprised 10 numbered paragraphs. The first seven paragraphs were on the first page. Paragraph 8 ran from near the foot of the first page to near the end of the fifth page. It comprised 12 individual sub-paragraphs, which were not numbered internally. The extensive paragraph cited as paragraph 8 at [12] above was in fact the last of the 12 separate paragraphs set out under the number 8. The courts have from time to time had to remind tribunals of the need to organise long decisions appropriately (see e.g. Jasim v Secretary of State for the Home Department [2006] EWCA Civ 342). In addition the Senior President’s Practice Statement on the Form of Decisions and Neutral Citation requires that tribunal decisions “be prepared for delivery, or issued as approved decisions, with paragraph numbering” (at paragraph 2). I think it can be safely taken as read that this means sequential paragraph numbering with each paragraph separately numbered. This is not idle pedantry – proper paragraph numbering allows the parties (and appellate tribunals or courts) to find their way around a decision with ease, and is especially important if there is a need to identify particular passages on appeal.

 

35. However, both these points are ultimately matters of form not substance. They do not have any effect on my decision to refuse the application for permission to appeal.

 

Conclusion

36. I therefore dismiss the application for permission to appeal against the decision of the First-tier Tribunal (War Pensions and Armed Forces Compensation Chamber) dated 8 July 2014.

 

37. As noted above, this is a case which has been up and down the legal system. Mr McGhee confirmed on instructions, in answer to my direct question from the bench, that Mr Viggers had no wish for the case details to be anonymised in any way. That was helpful, given that there may be other parties who wish to track the way in which challenges to a tribunal’s adequacy of reasoning have been dealt with in the appellate system. This case may therefore be known simply as Viggers v Secretary of State for Defence, rather than just by its registered file number of CAF/4845/2014.

 

 

 

 

 

 

Signed on the original Nicholas Wikeley

on 12 March 2015 Judge of the Upper Tribunal