Secretary of State for Defence v The Pensions Appeal Tribunal [2007] EWHC 1177 (Admin)

[2007] EWHC 1177 (Admin)Case Nos: CO/5285/2005 and others listed below
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 18/05/2007
Before
THE HONOURABLE MR JUSTICE STANLEY BURNTON
Between
THE SECRETARY OF STATE FOR DEFENCEClaimantTHE PENSIONS APPEAL TRIBUNALDefendantKATHRYN LOCKYER-EVIS (CO/5285/2005)Interested PartiesJOANNE CLEMENTS (CO/1542/2006)Interested PartyRUSSELL DENIS HOGGART (CO/6613/2006Interested PartyGARY BULLIVANT (CO/6583/2006)Interested PartyPAUL HUDSON (CO/5221/2006)Interested PartyRALPH STRATFORD (CO/5220/2006)Interested PartyDOUGLAS POWELL (CO/6155/2006)Interested PartyRICHARD GILDEA (CO/8387/2006)Interested Party
Keith Morton and Daniel Beard (instructed by the Treasury Solicitor) for Claimant. for The Defendant Tribunal did not appear and was not represented.Conor Gearty (instructed by Linder Myers) for Interested Parties Messrs Stratford, Hoggart and Gildea for The Interested Parties Kathryn Lockyer Evis, Joanne Clements, Gary Bullivant, Paul Hudson and Douglas Powell did not appear and were not represented.Hearing Hearing dates: 2 and 3 May 2007
Judgment

Introduction

[1]I have before me 8 claims for judicial review in which the Secretary of State for Defence seeks to quash decisions of the Pensions Appeal Tribunal to treat appeals by the Interested Parties as having been commenced in the time permitted by the applicable legislation and delegated legislation.The Secretary of State is the Minister responsible for the Armed Forces. His functions include deciding upon claims (termed ‘War Pension Claims’) for disability pensions made by members of the armed forces. War pensions are awarded pursuant to the provisions of the Naval, Military and Air Forces etc (Disablement and Death) Service Pensions Order 1983 (“the SPO”) and are administered by the Veterans Agency, an Executive Agency of the Ministry of Defence. Awards are now made pursuant to the 2006 SPO, but the 1983 SPO was the relevant SPO for the purposes of these cases.[2]The Defendant (“the Tribunal”) is the statutory tribunal established under the Pensions Appeal Tribunals Act 1943 (“the Act”) to hear appeals against decisions of the Secretary of State concerning pensions for former members of the armed forces.[3]The Interested Parties are former members of the armed forces who have brought appeals to the Tribunal against decisions of the Secretary of State concerning their pension entitlement.[4]The applications for judicial review relate to issues of principle as to the time within which an appeal may be brought to the Tribunal from a decision of the Secretary of State in respect of an entitlement to or assessment of war pensions under the SPO.[5]Permission to apply for judicial review in the case of Lockyer-Evis was granted by Walker J on 20 December 2005, and in the case of Powell by Munby J on 19 October 2006. In the remaining cases, Davis J directed that permission be determined at the hearing before me, with the substantive hearing to follow if appropriate. At the suggestion of Davis J, the solicitors acting for MessrsStratford, Hoggart and Gildea sought instructions from the other Interested Parties, but without success. They were therefore unrepresented, and indeed did not appear. Mr Gearty was good enough to summarise the arguments that might be put forward on their behalf.[6]As will be apparent, in each of those cases there is clearly at least an arguable claim for judicial review. I therefore grant permission in those cases also. There was originally an additional claim for judicial review, in which the Interested Party was Joanne Clements; it was resolved by a consent order following her withdrawal of her appeal to the Tribunal, and I need say no more about it.[7]I have been considerably assisted in the writing of this judgment by the submission to the Court in electronic form of the skeleton arguments of counsel and of the Claimant’s Statements of Facts relied upon, referenced to the paginated files used in the hearing. I am grateful to all counsel for this assistance, as well as their submissions during the hearing.

The administration of the War Pensions Scheme

[8]The procedures of the Veterans Agency (“the VA”) were summarised in the witness statement of Yvonne Sanderson, the manager of its Procedural and Legislative Guidance Team. The following account is taken from that helpful statement.[9]The VA is the single point of contact within the Ministry of Defence for providing information, help and advice on issues of concern to veterans and their families. It does this through its free help-line, welfare service and website. In addition to providing advice on a wide range of subjects the Agency’s core function is to administer the War Pensions Schemes and the Armed Forces Compensation Scheme (AFCS). These schemes provide compensation, for disablement arising from Service, in the form of one off lump payments and on-going regular payments.[10]The SPO provides for the payment of compensation for former members of the Armed Forces (the “Members”) who suffer injury, ill-health or death due to Service before 6 April 2005. There are no time limits in the SPO within which a Member must make a claim for a war disablement pension. As a consequence of that, a pension is normally paid from the date that a claim is made unless a Member has made an enquiry about claiming a pension within the previous 3 months. Where such an enquiry has been made, there is provision to award the pension from the date on which the enquiry was made. The onus is on the Member to make a claim, save where the Member is being invalided from Service on medical grounds.[11]Under the SPO the Member will be entitled to compensation if it is determined that the injury is attributable to or aggravated by service (the entitlement decision). The amount that they receive will depend (in part) on the assessment made as to the degree of disablement that has been suffered as a consequence of the injury (the assessment decision). The SPO requires that an assessment of the degree of a Member’s disablement is made on an interim basis, unless the circumstances are such that final assessment can be made. A final assessment is made when it is considered that the accepted disablement is stable.[12]On-going regular payments are made where the assessment of disablement is 20 per cent or more. Lump sum payments (gratuities) are usually made where the assessment is above Nil but less than 20 per cent, except in the case of Noise Induced Sensorineural Hearing Loss.[13]Unless the Member is discharged from service on medical grounds, it is a pre-requisite for compensation under the SPO that he submit a claim for such compensation. The claims process starts when a Member contacts the VA, either by phone or in writing, claiming disablement due to service and enquiring about claiming a War Disablement Pension (WDP). When a first claim to pension is made, a claim form (WPA0001) is issued with a leaflet that provides information about war pensions. A leaflet is also sent out with the claim form.[14]When a completed and signed claim form is received, the service medical documents and any other supporting evidence required to consider the claim are obtained by the VA. Where a Member is being invalided from service on medical grounds, no claim by the Member is required. The process of consideration starts when the service records and the member’s medical records are delivered to the VA. The documents should be sent to the VA automatically by the relevant military authorities as part of the discharge process.[15]The documents will be scrutinised by a caseworker (acting on behalf of the Secretary of State), to determine the facts. For example, the caseworker will determine whether the claimant was a member of HM Forces; whether a claim has been made and for what; the date on which the claim was made; whether the claimant has “shown disablement” and whether the claimant has suffered a service-related injurious incident. Once the caseworker has determined that the Member is eligible to claim, a form is submitted to the medical adviser recording whether the contentions made by the Member as to the circumstances of the claimed disability are accepted.[16]The medical adviser then determines what, if any, additional medical evidence will be required e.g. GP/hospital case notes, medical board report etc. When the additional medical evidence has been received, the medical adviser answers any medical questions relating to the claim. Where the medical adviser decides that there is a causal link between the claimed disablement(s) and service, he will provide a certificate to this effect, which will also state the degree of disablement suffered by the Member as compared with a normal healthy person of the same age and sex. This is expressed as a percentage figure.[17]The Member is then notified of the outcome of the claim, which will reflect the medical adviser’s advice. In the vast majority of first claims this notification will be effected by a computer-issued decision letter. However, if there is not an appropriate pro-forma decision letter, a letter will be issued manually, for example, in cases alleging Gulf War Syndrome. In the majority of subsequent claims the decision notification is issued clerically.[18]The standard form letter notifies the Member of a right to appeal from the decision and refers to an enclosed leaflet which provides further details as to the appeals process. The leaflet details what to do if the Member disagrees with the decision, how to make an appeal and the time limits for making an appeal. In addition, each decision letter carries the VA free phone Help-line number and recommends that, if the person has any queries, they telephone the VA for advice. The relevant text of the decision letters and leaflets in the present cases is referred to below.[19]If a Member disagrees with the decision made on the claim the Member may ask for a review of the decision under Article 67 of the SPO. If the Secretary of State decides that there are grounds to review the decision, a review is conducted and a fresh decision notification letter issued. The decision could be to vary or to maintain the previous decision, but in either scenario a fresh appeal right would apply in respect of that decision. The decision notification letter would again refer the Member to the enclosed leaflet, which would detail the manner and time limits for making an appeal.[20]If the Secretary of State determines that there are no grounds to review the original decision then a letter is sent reflecting this. This letter is usually manually issued as opposed to computer generated. If the time limit for appealing the original decision has not expired the Member is reminded of the right of appeal in respect of that decision.[21]Most decisions under the War Pension Scheme carry a right of appeal to the Tribunal, which is independent. Appeals are begun by the submission of a completed appeal form. The VA’s usual practice is to accept requests for appeal forms either in writing (by letter, e-mail, or fax) or by telephone. Such requests may be made by the Member, by the widow or widower of the Member or by a third party acting on the Member’s behalf e.g. an ex-Service organisation, War Pensioners’ Welfare Office, the Member’s solicitor or a commercial company.[22]Rule 4 of the of the Pensions Appeal Tribunals (England and Wales) Rules 1980 (“the PAT Rules”) provides that, in Assessment Appeals only, where an appellant has signified his desire to appeal by letter to the Secretary of State before the time for commencing the appeal has expired and the appropriate form of notice of appeal is sent to the Secretary of State within 6 weeks after the form was sent by the Secretary of State to the appellant, the appeal is deemed to have commenced on the date the letter was sent.[23]Once a request for appeal forms is received, the VA’s practice is to issue an appeal form (PAT1) irrespective of whether it appears that the appeal will be filed within the statutory time limit. It is for the Tribunal to decide whether an appeal has been filed within the statutory time limits or, if it has been filed late, whether the appeal meets the prescribed circumstances laid down under Regulation 4(a) and (b) of the Late Appeal Regulations (set out below) such that time can be extended by a further 12 months.[24]If the appeal is admitted by the Tribunal, at the hearing the VA is usually represented by a Departmental Representative.

The applicable statutory provisions

[25]The right to appeal from a decision of the Secretary of State to the Tribunal is established by section 1 (entitlement decisions) and section 5 (assessment decisions) of the Act. These sections provide: 1 Appeals against rejection of war pension claims made in respect of members of the naval, military or air forces(1) Where any claim in respect of the disablement of any person made under any such Royal Warrant, Order in Council or Order of His Majesty as is administered by the Minister … is rejected by the Minister on the ground that the injury on which the claim is based— (a) is not attributable to any relevant service; and (b) does not fulfill the following conditions, namely, that it existed before or arose during any relevant service and has been and remains aggravated thereby; the Minister shall notify the claimant of his decision, specifying that it is made on that ground, and thereupon an appeal shall lie to a Pensions Appeal Tribunal constituted under this Act (hereafter in this Act referred to as “the Tribunal”) on the issue whether the claim was rightly rejected on that ground.(2) Where, for the purposes of any such claim as aforesaid, the injury on which the claim is based is accepted by the Minister as fulfilling the conditions specified in paragraph (b) of the last foregoing subsection but not as attributable to any relevant service, the Minister shall notify the claimant of his decision, specifying that the injury is so accepted, and thereupon an appeal shall lie to the Tribunal on the issue whether the injury was attributable to such service. 5 Appeals against assessment of extent of disablement (1) Where, in the case of any such claim as is referred to in section one, section two or section three of this Act in respect of the disablement of any person, the Minister makes an interim assessment of the degree of the disablement, he shall notify the claimant thereof and an appeal shall lie to the Tribunal from the interim assessment and from any subsequent interim assessment, and the Tribunal on any such appeal may uphold the Minister's assessment or may alter the assessment in one or both of the following ways, namely— (a) by increasing or reducing the degree of disablement it specifies; and (b) by reducing the period for which the assessment is to be in force. In this section the expression “interim assessment” means any assessment other than such a final assessment as is referred to in the next following subsection. (a) is not attributable to any relevant service; and (b) does not fulfill the following conditions, namely, that it existed before or arose during any relevant service and has been and remains aggravated thereby; (a) by increasing or reducing the degree of disablement it specifies; and (b) by reducing the period for which the assessment is to be in force.[26]Section 8 of the Act concerns time limits for appeal. Section 8(1) of the Act originally provided: 8 Time limit for appeals (1) No appeal shall be brought under any provision of this Act except subsection (1) of section five unless notice of that appeal is given, in such manner as may be prescribed by rules made under the Schedule to this Act, not later than twelve months after – (a) in the case of a decision from which an appeal lies to the Tribunal under section one, section two, section three or section four of this Act, being a decision made before such date as may be appointed by order of the Minister, that date; … Provided that the Tribunal may allow an appeal to be brought after the expiration of the period limited by this subsection if they consider that there was a reasonable excuse for the delay. (a) in the case of a decision from which an appeal lies to the Tribunal under section one, section two, section three or section four of this Act, being a decision made before such date as may be appointed by order of the Minister, that date; …[27]Despite the Parliamentary authorisation for one, no order was made for the purposes of section 8(1)(a). Accordingly there was no time limit within which an entitlement appeal had to be brought.[28]The situation changed with effect from 9 April 2001, when section 58 of the Child Support, Pensions and Social Security Act 2000 (“the CSPSSA”) came into force. It amended Section 8 of the Act. In particular a time limit of 6 months was introduced within which an entitlement appeal had to be brought. As amended, section 8(1) provides: No appeal shall be brought to the Tribunal under any provision of this Act except subsection (1) of section five unless notice of that appeal is given, in such manner as may be prescribed by rules made under the Schedule to this Act, not later than six months after the date on which the decision or assessment is notified to the claimant.[29]However, transitional provisions were enacted in relation to appeals against entitlement decisions made before 9 April 2001. Section 58(3)(a) and 58(4) of the CSPSSA provided that in such cases an appeal had to be brought within 12 months of the date on which the amendment came into force (i.e. by 9 April 2002). In relation to such cases Section 8(1), as amended, is as follows: No appeal shall be brought under any provisions of this Act …unless notice of that appeal is given, in such manner as may be prescribed by rules made under the Schedule to this Act, not later than twelve months after [9 April 2001].[30]In respect of an appeal against an interim assessment decision made under section 5(1) of the Act, section 8(3) provides: No appeal shall be brought to the Tribunal under subsection (1) of section five of this Act unless notice of that appeal is given in such manner as may be prescribed by rules made under the Schedule to this Act not later than three months after … (c) the date on which the said assessment is notified …[31]The “reasonable excuse” test originally provided for by section 8(1) (and an identical test in respect of section 8(3)) for extending time was repealed by section 85 and Schedule 9 of the CSPSSA.In their place section 8(5) (inserted by section 58(2) of the CSPSSA) now provides: (5) The Minister may by regulations . . . provide that the Tribunal may, in circumstances prescribed in the regulations, allow an appeal to be brought not later than twelve months after the end of any period limited by this section. Pensions Appeal Tribunals (Late Appeals) Regulations 2001 (“the Late Appeals Regulations”) were made pursuant to this section.[32]It is clear from the wording of section 8 that the time limits it provides are strict (“No appeal shall be brought …”), and Mr Gearty did not suggest otherwise.[33]Section 9 of the Act provides: 9 Notices Any notice given by the Minister under this Act shall be in writing and may be sent by post to the last known or usual place of abode of the claimant or any person authorised to act on his behalf in relation to the claim and, in the case of a notice of a decision from which an appeal lies to the Tribunal, shall specify that fact and the time within which and the manner in which notice of such an appeal must be given.[34]Rule 4 of the PAT Rules specifies the method of appealing to the Tribunal, and provides, as amended: 4 Method of appealing(1) An appeal to a tribunal shall be commenced by a notice of appeal to the Secretary of State on an appropriate form. Provided that where a person who is desirous of commencing an assessment appeal has signified to the Secretary of State his intention to appeal by a prepaid letter sent to the Secretary of State before the time for commencing the appeal has expired, and the appropriate form of notice of appeal is sent to the Secretary of State within six weeks after the form was sent by the Secretary of State to the appellant for completion, the appeal shall be deemed to have been commenced on the date on which the letter was so sent.(2) The appropriate form of notice of appeal shall be supplied by the Secretary of State on request.(3) A notice of appeal shall be signed by the appellant, or as the case may be, by the person acting on behalf of the appellant, and shall bear the date on which it was signed, and shall be sent by post addressed to the Secretary of State for Defence.[35]The Late Appeal Regulations came into force on the 9 April 2001 and introduced new provisions for determining the circumstances in which late appeals might be considered out of time. In so far as is material they provide: Provisions for late appeals 3. The Tribunal may, in the circumstances prescribed in regulation 4, allow an appeal to be brought not later than twelve months after the expiry of the time limit. Prescribed circumstances 4. The prescribed circumstances are as follows:(a) where the main cause of the non-compliance with the time limit was – (i) the death or serious illness of the claimant or a spouse or dependant of the claimant; (ii) the disruption of normal postal services; (iii) failure on the part of the Secretary of State to notify the claimant of the decision; or (iv) exceptional circumstances applying to the claimant which rendered it impracticable for the claimant to bring the appeal or to instruct another person to bring it; and(b) the appeal was in any event brought as soon as was reasonably practicable in the circumstances of the case. Provisions for late appeals Prescribed circumstances (i) the death or serious illness of the claimant or a spouse or dependant of the claimant; (ii) the disruption of normal postal services; (iii) failure on the part of the Secretary of State to notify the claimant of the decision; or (iv) exceptional circumstances applying to the claimant which rendered it impracticable for the claimant to bring the appeal or to instruct another person to bring it;

Prescribed circumstances

[36]In argument before me, the time limit specified by section 8 apart from section 8(5) and the regulations made under it was conveniently referred to as “the primary time limit”, and the period expiring after the additional period of 12 months that may be permitted in the prescribed circumstances under the Late Appeal Regulations as “the secondary time limit”, and I shall do the same in this judgment.[37]The principal issues that arise in this connection are: i) What are the requirements of section 9? ii) Is full (or “strict”) compliance with those requirements a pre-requisite for the commencement of the time limited for appeal to the Tribunal?

The requirements of section 9

[38]As appears above, it is not the practice of the VA to state the time limit applicable to an appeal in the letter sent to the claimant. The standard form letter encloses a leaflet, to which it refers. Under the heading “If you disagree with our decision”, the letter states, among other things:
“You can appeal against this decision. Please read the enclosed leaflet carefully, it tells you how and when to appeal. It also gives more details about War Pensions.”
[39]The enclosed leaflet (VA-Leaflet-2) states under the same heading:
“For certain decisions you may also be able to appeal to an independent tribunal who can change the decision if they consider it as wrong. The letter telling you about the decision tells you if you have a right of appeal against it. There are time limits for appealing against a decision (see pages 25-27). ”
Those pages included the following texts:
“The letter we sent you about our decision will tell you if you have a right of appeal, you can appeal against certain decisions as follows; • Your entitlement is refused. • An award is refused or stopped. • The amount of the award is set or changed. • The date from which an award runs out is set or changed. You can appeal against initial decisions and decisions on reviews. If you appeal against our decision, your appeal will go to an independent tribunal. … How to appeal If the letter we sent you told you that you have a right of appeal and: • You think our decision is wrong; and • You want to appeal to an independent tribunal; Tell us. Contact us at the address on page 37. Remember to tell us your National Insurance number. We will let you know what happens next. When to appeal There are time limits for making appeals. You must appeal within: • Three months of the date shown on your decision letter if it was an interim (short-term) assessment; or • Six months of the date shown on your decision letter for all other decisions that carry a right of appeal. Late appeals. In exceptional cases, there is also a 12-month period after the normal time limits in which you can make an appeal. You should be able to show that the main reason for the delay in appealing within the normal time limits was because of: • Death or serious illness of the person which claimed, their husband, wife, partner (by partner we mean someone who lives with you as a husband or wife) or dependants; • Failure by the Secretary of State to let the person who claimed know about the appeal; • A disruption to the normal postal services; or • Exceptional circumstances which apply to the person who claimed. It is the responsibility of the Pensions Appeal Tribunal to decide whether a late appeal should be allowed to go ahead. If you are sending in a late appeal, you should explain the reasons why it is late. We will send this to the tribunal who will write to you. The tribunal will tell you if they can accept your appeal and will include the reason for their decision. The tribunal cannot accept appeals that are made more than: • 15 months after the date on our decision letter if it was an interim (short-term) assessment; or • 18 months after the date on our decision letter if it was any other decision that has a right of appeal.” • Your entitlement is refused. • An award is refused or stopped. • The amount of the award is set or changed. • The date from which an award runs out is set or changed. How to appeal • You think our decision is wrong; and • You want to appeal to an independent tribunal; When to appeal • Three months of the date shown on your decision letter if it was an interim (short-term) assessment; or • Six months of the date shown on your decision letter for all other decisions that carry a right of appeal. • Death or serious illness of the person which claimed, their husband, wife, partner (by partner we mean someone who lives with you as a husband or wife) or dependants; • Failure by the Secretary of State to let the person who claimed know about the appeal; • A disruption to the normal postal services; or • Exceptional circumstances which apply to the person who claimed. • 15 months after the date on our decision letter if it was an interim (short-term) assessment; or • 18 months after the date on our decision letter if it was any other decision that has a right of appeal.”

When to appeal

[40]It is not entirely clear how the Tribunal has construed section 9 in so far as it applies to decisions from which an appeal lies to the Tribunal. There are suggestions that the Tribunal has considered that all of its requirements must be satisfied in a single document, and that a notice under section 9 must specify the date by which notice of appeal must be given.[41]It is evident that in the Act the word “notice” is used to signify a communication giving a notification, so that that section 9 applies to the requirement in section 1 (for example) that the Minister notify the claimant of his decision. Section 9 would otherwise have no application.[42]In his skeleton argument, Mr Gearty submitted that the requirements of section 9 have to be satisfied in a single document. He pointed out that “The notice of this information is specifically required to be in the written notice sent to the claimant or authorised person. There is no reference to documentation supplied with the notice being sufficient, or to generalised forms or other forms of leaflets – the provision is about a written notice delivered directly to the claimant or his or her representative.”[43]The difficulty with this submission became apparent during the course of argument. Just what is “the written notice sent to the claimant”? If the information must be given in a single document, what is meant by “a single document”? What if the relevant information is contained in an appendix to the notifying letter? If that is sufficient, what if the appendix is not physically attached to the main body of the letter? And if that suffices, why not a printed leaflet enclosed with and referred to in the letter? In the light of these questions, Mr Gearty did not persist in this submission, in my judgment rightly. I have no doubt that there is no magic in the requisite information being contained in part of the letter giving notice of the Minister’s decision. The section contains no such requirement. It is sufficient if the information is contained in a leaflet that is referred to and enclosed with the letter.[44]Section 9 does not require the notice to specify the date by which notice of an appeal must be given, but “the time within which” it must be given: compare section 4 of the Landlord and Tenant Act 1954. A notice specifying that notice of appeal must be given within a specified period of a specified date suffices. The leaflet specifies the appeal period and by reference to the date of the letter specifies a date. Provided the information provided is reasonably clear, there is no failure to comply with the requirements of the section.[45]Mr Gearty submitted that the standard notification is defective because the leaflet gives two different time limits, one for interim decisions and the other for entitlement decisions, and requires the claimant to identify what kind of decision has been made in his case in order to understand what is his applicable time limit. In my judgment, there is nothing inconsistent with the statutory requirement in this procedure, provided the letter of notification is sufficiently clear as to the kind of decision that has been made. If the reader cannot reasonably ascertain from his letter or the enclosed leaflet what kind of decision has been made, and thus what is the time limit for appealing, section 9 has not been fully complied with.[46]The Act does not expressly prescribe the consequences of a failure to comply with all of the requirements of section 9. Mr Gearty submitted that any failure to comply with the requirements of section 9 precluded time for appealing from running against a claimant. Mr Morton submitted that the consequences of a failure have to be considered on a case-by-case basis. He referred to and relied upon the speech of Lord Steyn in R v Soneji [2006] 1 AC 340: 15 In London & Clydeside Estates Ltd v Aberdeen District Council [1980] 1 WLR 182, 189–190 Lord Hailsham of St Marylebone LC put forward a different legal analysis:
"When Parliament lays down a statutory requirement for the exercise of legal authority it expects its authority to be obeyed down to the minutest detail. But what the courts have to decide in a particular case is the legal consequence of non-compliance on the rights of the subject viewed in the light of a concrete state of facts and a continuing chain of events. It may be that what the courts are faced with is not so much a stark choice of alternatives but a spectrum of possibilities in which one compartment or description fades gradually into another. At one end of this spectrum there may be cases in which a fundamental obligation may have been so outrageously and flagrantly ignored or defied that the subject may safely ignore what has been done and treat it as having no legal consequences upon himself. In such a case if the defaulting authority seeks to rely on its action it may be that the subject is entitled to use the defect in procedure simply as a shield or defence without having taken any positive action of his own. At the other end of the spectrum the defect in procedure may be so nugatory or trivial that the authority can safely proceed without remedial action, confident that, if the subject is so misguided as to rely on the fault, the courts will decline to listen to his complaint. But in a very great number of cases, it may be in a majority of them, it may be necessary for a subject, in order to safeguard himself, to go to the court for declaration of his rights, the grant of which may well be discretionary, and by the like token it may be wise for an authority (as it certainly would have been here) to do everything in its power to remedy the fault in its procedure so as not to deprive the subject of his due or themselves of their power to act. In such cases, though language like 'mandatory,' 'directory,' 'void,' 'voidable,' 'nullity,' and so forth may be helpful in argument, it may be misleading in effect if relied on to show that the courts, in deciding the consequences of a defect in the exercise of power, are necessarily bound to fit the facts of a particular case and a developing chain of events into rigid legal categories or to stretch or cramp them on a bed of Procrustes invented by lawyers for the purposes of convenient exposition. As I have said, the case does not really arise here, since we are in the presence of total non-compliance with a requirement which I have held to be mandatory. Nevertheless I do not wish to be understood in the field of administrative law and in the domain where the courts apply a supervisory jurisdiction over the acts of subordinate authority purporting to exercise statutory powers, to encourage the use of rigid legal classifications. The jurisdiction is inherently discretionary and the court is frequently in the presence of differences of degree which merge almost imperceptibly into differences of kind."
This was an important and influential dictum. It led to the adoption of a more flexible approach of focusing intensely on the consequences of non-compliance, and posing the question, taking into account those consequences, whether Parliament intended the outcome to be total invalidity. In framing the question in this way it is necessary to have regard to the fact that Parliament ex hypothesi did not consider the point of the ultimate outcome. Inevitably one must be considering objectively what intention should be imputed to Parliament. "When Parliament lays down a statutory requirement for the exercise of legal authority it expects its authority to be obeyed down to the minutest detail. But what the courts have to decide in a particular case is the legal consequence of non-compliance on the rights of the subject viewed in the light of a concrete state of facts and a continuing chain of events. It may be that what the courts are faced with is not so much a stark choice of alternatives but a spectrum of possibilities in which one compartment or description fades gradually into another. At one end of this spectrum there may be cases in which a fundamental obligation may have been so outrageously and flagrantly ignored or defied that the subject may safely ignore what has been done and treat it as having no legal consequences upon himself. In such a case if the defaulting authority seeks to rely on its action it may be that the subject is entitled to use the defect in procedure simply as a shield or defence without having taken any positive action of his own. At the other end of the spectrum the defect in procedure may be so nugatory or trivial that the authority can safely proceed without remedial action, confident that, if the subject is so misguided as to rely on the fault, the courts will decline to listen to his complaint. But in a very great number of cases, it may be in a majority of them, it may be necessary for a subject, in order to safeguard himself, to go to the court for declaration of his rights, the grant of which may well be discretionary, and by the like token it may be wise for an authority (as it certainly would have been here) to do everything in its power to remedy the fault in its procedure so as not to deprive the subject of his due or themselves of their power to act. In such cases, though language like 'mandatory,' 'directory,' 'void,' 'voidable,' 'nullity,' and so forth may be helpful in argument, it may be misleading in effect if relied on to show that the courts, in deciding the consequences of a defect in the exercise of power, are necessarily bound to fit the facts of a particular case and a developing chain of events into rigid legal categories or to stretch or cramp them on a bed of Procrustes invented by lawyers for the purposes of convenient exposition. As I have said, the case does not really arise here, since we are in the presence of total non-compliance with a requirement which I have held to be mandatory. Nevertheless I do not wish to be understood in the field of administrative law and in the domain where the courts apply a supervisory jurisdiction over the acts of subordinate authority purporting to exercise statutory powers, to encourage the use of rigid legal classifications. The jurisdiction is inherently discretionary and the court is frequently in the presence of differences of degree which merge almost imperceptibly into differences of kind."[47]Lord Steyn adopted this approach, concluding: 23. Having reviewed the issue in some detail I am in respectful agreement with the Australian High Court that the rigid mandatory and directory distinction, and its many artificial refinements, have outlived their usefulness. Instead, as held in Attorney General's Reference (No 3 of 1999) [2001] 2 AC 91, the emphasis ought to be on the consequences of non-compliance, and posing the question whether Parliament can fairly be taken to have intended total invalidity. That is how I would approach what is ultimately a question of statutory construction. …[48]Mr Morton also referred me to the illuminating judgment of Lord Woolf LCJ in the Court of Appeal in R v Immigration Appeal Tribunal, ex parte Jeyeanthan [1999] 3 All ER 231. Special adjudicators had allowed applications for asylum by R and J. In both cases the Secretary of State sought to challenge the decision in the Immigration Appeal Tribunal (the IAT), but failed to submit the application form for leave to appeal prescribed by r 13(3)of Asylum Appeals (Procedure) Rules 1993. Instead, he applied for leave to appeal by letters which contained all the relevant information required by the prescribed form save for the declaration of truth. In R's case, no challenge was made to the Secretary of State's application for leave, and the IAT eventually allowed the appeal. In J's case, however, such a challenge was made, but was rejected by the IAT which went on to allow the Secretary of State's appeal. On J's application for judicial review of that decision, the judge held that the Secretary of State's application substantially failed to comply with the prescribed form and that accordingly the IAT's decision was a nullity. The Secretary of State appealed, contending that the non-compliance was not substantial and that, in any event, it was an irregularity which could be cured under r 38 of the Immigration Appeals (Procedure) Rules 1984. J and R, who appealed against the IAT's decision in his case, contended that rule 13(3) of the 1993 Rules should be strictly applied. The principle applied by the Court of Appeal is helpfully summarised in the head note as follows: In determining the consequences of a failure to comply with a procedural requirement, the court had to assess the intention of the legislator against the factual circumstances of non-compliance, and in most cases it would be of little if any assistance to inquire whether the requirement was mandatory or directory. That question was at most a first step, and normally there were other questions which were likely to be of greater assistance, namely:(i) whether the statutory requirement was fulfilled if there had been substantial compliance with it and, if so, whether there had been such compliance;(ii) whether the non-compliance was capable of being waived, and if so, whether it had been, could or should be waived; and(iii) what was the consequence of non-compliance if it was not capable of being waived or had not been waived. In the instant cases, there had been substantial non-compliance since a form containing a declaration of truth was a very different document from a form without such a declaration. However, that non-compliance was an irregularity which could be cured by the IAT under r 38 of the 1984 rules, and that rule had to be given a broad interpretation in order to avoid injustice to asylum seekers who were likely to make many procedural errors.[49]The issue before me differs significantly from those considered in Soneji and Jeyeanthan. In those cases, it was suggested that a failure to comply with the statutory requirements of the act in question rendered it a nullity. That is not suggested in the present cases. It is not suggested that a decision of the Secretary of State of which a claimant is informed is a nullity, at least where the claimant is notified in writing, albeit without complying with the other requirements of section 9. The claimant may, if he is aware of the availability of appeal to the Tribunal, appeal to it. What is suggested is that the time within which to appeal does not run against the claimant in such a case. Nonetheless, those authorities are helpful in expressing the principles applicable.[50]Given that the question is one of statutory interpretation, ultimately it seems to me to be: what must Parliament be taken to have intended? The applicable principle of interpretation is that Parliament is to be presumed to have intended a reasonable, rather than an unreasonable, result. The object of Parliament, in enacting section 9, was clearly to ensure that claimants were effectively informed of their right to appeal to the Tribunal.[51]I think it helpful to consider the Act in its original form, and to proceed to consider the consequences of its amendment. In my judgment, it would have been unreasonable to construe the Act as requiring strict compliance with section 9 before time for appealing to the Tribunal could run. This is because the Tribunal could protect the right of appeal of any claimant prejudiced by a failure to inform him of his right and the time limit for its exercise by applying the proviso to section 8: in such a case, there would be a reasonable excuse for the delay.[52]The question then arises whether the position changed when the Act was amended to its current form. There was no alteration to the wording of section 9. The proviso to section 8 was removed, but it was replaced by the power conferred on the Minister to make regulations under which appeals may be brought not later than 12 months after the expiration of the primary time limit. Parliament must, I think, be taken to have considered that if a claimant was sufficiently dissatisfied with a Ministerial decision he would be able to ascertain his rights and exercise them within the extended period. One would expect the regulations made under section 8(5) to address the consequences of a failure to inform a claimant of his rights.[53]In fact, the wording of regulation 4(a)(iii) of the Late Appeal Regulations is curious in the extreme. Since the time to appeal cannot start to run until a claimant has been notified of a decision: section 8(1) and (3), regulation 4(a)(iii) can have no effect if it is literally construed. Meaning can be given to it, however, if it is construed as applying to cases in which the Secretary of State has failed strictly to comply with the requirements of section 9. In other words, a failure to notify a claimant in writing of a decision means that his time to appeal does not begin to run. However, an omission to inform him of the time limit for appealing would not do so. A claimant who is misled or confused by a notification that gives two time limits, 3 months and 6 months, and does not state clearly which is applicable, and who as a result appeals after the expiration of his 3 month time limit but before the expiration of 6 months from his notification, should have his time extended under regulation 4(a)(iii). What would be the consequences of a total failure to refer to the right of appeal does not arise in the cases before me, and I express no view on it.[54]As I have already indicated, it is clear, given the wording of section 8, that the Tribunal has no power to hear an appeal that is submitted after the expiration of the secondary time limit, and it can only hear an appeal brought after the expiration of the primary time limit but before the expiration of the secondary time limit if the requirements of the Late Appeal Regulations are satisfied.

The transitional provisions

[55]As has been seen (see paragraph 29 above), these provisions impose a time limit (12 months from 9 April 2001 with the possibility of an extension under the Late Appeal Regulations) for appeals by claimants whose decisions were made under the unamended Act for whom there had previously been no applicable time limit within which to appeal. Mr Gearty submitted that the Act required the Secretary of State to notify such claimants before the new time limit imposed by section 58 of the CSPSSA could run. An alternative case was advanced that the Secretary of State was required to make reasonable efforts to notify the claimant of the new time limit.[56]I am unable to accept these submissions. On analysis, what Mr Gearty argues for is not a notification of a decision, which is required by the Act, but notification of the effect of the amending legislation. A notice complying with the requirements of the Act when given cannot become non-compliant as a result of the amendment to the Act. Nor is it surprising that Parliament did not impose an obligation on the Secretary of State to notify, or to make reasonable efforts to notify, all those whose decisions were affected by the new time limit of the change: they would include claimants whose cases had been decided and notified since 1943.[57]It follows that in my judgment the transitional provisions were effective to limit the time for appealing pre-9 April 2001 decisions which had not been subject to any such time limit, without notification to a claimant of that statutory change.[58]In fact, the VA notified claimants in receipt of pensions when the amendment came into force and those whose claims had been decided in the previous 12 months (i.e., between 9 April 2000 and 9 April 2001). In addition, representative organisations of ex-servicemen were informed of the change, and they were able to include information about it in their magazines.

The European Convention on Human Rights

[59]Mr Gearty prayed in aid Article 6 of the European Convention on Human Rights. He submitted that an inflexible time limit for an appeal is inconsistent with Article 6. In addition he relied on Article 6 as requiring fairness in the procedure, and specifically the time limits, applicable to the determination of appeals from the Secretary of State to the Tribunal. In Stubbings v UK (1996) EHRR 213, the European Court of Human Rights rejected a claim that the limitation period relating to child abuse was incompatible. At paragraph 56 of its judgment, the Court stated: … since the very essence of the applicants' right of access (to a court) was not impaired and the restrictions in question pursued a legitimate aim and were proportionate, it is not for the Court to substitute its own view for that of the State authorities as to what would be the most appropriate policy in this regard.[60]The limitation period considered in Stubbings was inflexible. The judgment of the Court is inconsistent with Mr Gearty’s first submission under this head. Furthermore, in my judgment, it cannot be said that the time limits for appealing in the Act as amended impair the very essence of a claimant’s right of access to the Tribunal, and Mr Gearty did not suggest so. That the time limits serve a legitimate aim is clear: there is a public interest in disputes being resolved timeously and while the evidence is relatively fresh and accessible. No material was put before me to suggest that the statutory time limits are disproportionate. It follows that the points raised under the Convention do not assist the Interested Parties.[61]I now turn to consider the individual claims for judicial review.

The appeal of Mr Stratford

[62]Mr Stratford’s is a transitional provisions case. He served in the forces from 1965 to 1974, in the Royal Electrical and Mechanical Engineers. The Secretary of State’s decision on his claim had been made under section 1 of the Act in 1989, on the ground that his disablement was not due to a wound, injury or disease which was attributable to service or existed before or arose during service and had been and remained aggravated by it. Accordingly, when that decision was made there was no applicable time limit for his appeal. As mentioned in paragraph 29 above, a time limit was introduced with effect from 9 April 2001.[63]Mr Stratford had been informed of the Secretary of State’s decision by letter dated 28 September 1989. It informed him of his right to appeal to the Tribunal, and how to obtain a form for giving notice of appeal, and correctly stated “There is no time limit at present for giving Notice of Appeal”. He was not informed of the legislation imposing a time limit for his appeal, although he still lived at the same address to which notice of the 1989 decision was sent.[64]On 28 October 2005 Mr Stratford sought to appeal against the 1989 decision. In preliminary correspondence with the Secretary of State, the point was taken that his appeal was outside both the primary and the secondary time limits imposed by the CSPSSA, as indeed it was.[65]In his skeleton argument, Mr Stratford accepted that the original letter he was sent in 1989 was a model of clarity and simplicity. He also acknowledged that it will sometimes be very difficult to reach the large numbers of ex-service personnel who may have appeal rights lying dormant: some will have moved away; others will have died; and so on. He relied on the fact that no effort whatsoever with regard to him as a rejected applicant for a pension was made. How the Secretary of State could have known that he might ever wish to appeal is not stated.[66]The Tribunal found that his appeal made on 28 October 2005 could be brought out of time. It gave the following reasons for its decision:
“The appeal is not made more than 12 months from the expiry of the time limit. At the time of the original decision, there was no time restriction on the Appellant’s right of appeal. For the reasons stated in the case of Hudson LA/00009/2006, with which this Tribunal dealt with immediately before this decision, we consider that on its true construction s.9 Pensions Appeal Tribunals Act 1943 requires that the appellant should be expressly notified of his specific appeal rights. When the Late Appeal Regulations 2001 came into effect, appellants were notified of the general effect on their rights as a matter of policy. However the agency cannot produce evidence that this Appellant was notified of the restrictions of his appeal rights by way of imposed strict time limits in respect of the agency’s entitlement decision of 28/9/1989. Therefore, we consider that as the requirements of s.9 have not been proved to have been met, that no valid notice has been given to the appellant and time has not started […] We observe that any notification to the Appellant consequently in the implementation of the Late Appeal Regulations, should have dealt with the specific time limit affecting him and not merely a general explanation of the new regulations.”
[67]For the reasons I have given above, the Tribunal erred in law. It had no power to accept Mr Stratford’s appeal after the expiration of the secondary time limit. I add that my conclusion is the same as that reached by the Tribunal under the chairmanship of Dr H M G Concannon in the similar case of Martin (PAT ref LA//01922/2004), which is accordingly inconsistent with the Tribunal’s decision on Mr Stratford’s appeal.[68]Mr Stratford also relied on the principle of legitimate expectation, said to arise from the statement in his decision notification letter:
“There is no time limit at present for giving Notice of Appeal”
(emphasis added). Mr Gearty submitted on his behalf that the words emphasised created in Mr Stratford an expectation that was in all the circumstances of the case legitimate that he would be informed of any change in the time limit.[69]Again, I cannot accept this submission. The letter contained no promise that Mr Stratford would be informed of any such change. To the contrary, the sentence in question warned that there might be a time limit at a later date.[70]The decision of the Tribunal in the case of Mr Stratford must be quashed.

The appeal of Mr Hoggart

[71]By letters dated 7 March 2005 Mr Hoggart was informed of the Secretary of State’s decisions on two claims he had made. The first was in the standard form referred to above, and related to injuries to his left ankle and back, and a complaint of deafness. It informed him that the injuries were caused by his service and that the assessment of his resulting disablement had been increased, but that his hearing loss had been assessed at less than 1 per cent, with the result that his disablement relating to that was nil. The letter stated that the VA’s doctors had made an interim assessment of his pensioned disablement. As indicated above, it stated:
“You can appeal against this decision. Please read the enclosed leaflet carefully, it tells you how and when to appeal. …”
[72]The second letter rejected his claim for so-called Gulf War Syndrome, on the basis that such a disorder does not exist. This letter was not in the standard form. Under the heading “If you disagree with our Decision” it stated:
“The leaflet we have sent you with this form tells you what to do if • You disagree with our decision, or • You do not understand our decision and want to know more about it, or • You want to tell us anything or send us any medical details that you think may affect our decision on your claim.” • You disagree with our decision, or • You do not understand our decision and want to know more about it, or • You want to tell us anything or send us any medical details that you think may affect our decision on your claim.”
[73]Thus the second letter did not inform Mr Hoggart that he had a right of appeal as required by section 9 of the Act, and as the Secretary of State accepts it should have done. The leaflet enclosed with the second letter was the same as that enclosed with the first letter.[74]Since the decision notified in the second letter was an entitlement decision, the primary time limit was six months from 7 March 2005, expiring on 7 September 2005. The secondary time limit expired 1 year later. The primary time limit for an appeal against the decision notified in the first letter was 3 months, expiring on 7 June 2005.[75]According to his witness statement, Mr Hoggart’s girlfriend put in an appeal soon after receiving the second decision letter. He telephoned the VA frequently to check how his appeal was proceeding, and was told that it was ongoing and that they could not give him any information. He was not told that the VA had not received his appeal. In September 2005 he received a letter stating that he had not appealed in time and had lost the right to appeal. He telephoned the VA and told them that his girlfriend had already appealed. He was told that the appeal had not been received, and so he asked for the appeal forms. He did then receive the forms and completed them and returned them to the VA. He adds that during a large part of 2005 he was upset as a result of the death of his grandmother in January of that year.[76]In fact, Mr Hoggart’s appeal forms relating to both decisions were received by the Secretary of State on 12 October 2005, outside both primary time limits but within the secondary time limit.[77]In its decision dated 9 May 2006, the Tribunal found that Mr Hoggart’s appeals against both of the decisions of 7 March 2005 could be brought as neither appeal was out of time. The Tribunal’s reasons were as follows:
“The decision notice is defective and does not comply with the mandatory requirements for a valid notice as set out in S 9 Pensions Appeals Tribunals Act 1943. Any notice given by the Minister under this Act shall be in writing and may be sent by post to the last known or usual place of abode of the claimant or any person authorised to act on his behalf in relation to the claim, and in the case of a notice of decision from which an appeal lies to the Tribunal, shall specify that fact and the time within which and the manner in which notice of such appeal must be given”
. In our opinion as the time and manner of appeal are not specified in the decision notice it is defective and time has not started to run. We are aware that Agency procedures are to send a leaflet to WPA-4 which at page 12 includes a general outline of methods and times of appeal but in our view this is insufficient to meet the requirements of the section. In our view the section requires the decision notice to specify precisely how the Claimant should appeal from that decision and the time applicable is the particular case. Furthermore, the Agency is unable to prove that the leaflet was enclosed on the particular occasion. Given the strict consequences of failing to appeal within time limits, it is incumbent upon the Agency to prove that the requirements of S9 have been complied with. We also have regard to the fact that the claimants are in general suffering from a degree of disability which might impair their ability to deal with paperwork (as was certainly the case in this instance, given the appellant’s accepted conditions and his prescribed medication). We feel that Parliament is enacting S9 of the Act had these disadvantages and disabilities in mind; the section is aimed at ensuring that the claimant’s rights are clearly spelt out on the face of the decision notice. We do not consider that, even where the leaflet can be proven to have been sent, that the mandatory requirements of the section are met. The leaflet is clearly not part of the decision notice. Given that the decision notice is so clearly a word-processed pro-forma we are at a loss to understand why the specific manner of appeal and applicable time limit relating to the decision specified in that notice of appeal cannot be included in the body of the decision notice.”[78]The Secretary of State contends that the Tribunal erred in law in treating the requirements of section 9 as mandatory, instead of considering whether the consequences of his failure to comply with its requirements justified the finding that time to appeal had not begun to run. There was no finding that Mr Hoggart had been misled by the failure to inform him of his right to appeal against the decision in the second letter; and since he was making enquiries about his appeal it seems he knew he had a right of appeal. In any event, his appeal forms were received on 12 October 2005, within the secondary time limit, and if the circumstances were appropriate his appeal could have been received by the application of regulation 4 of the Late Appeal Regulations. Furthermore, Mr Hoggart had not raised any issue as to the receipt of the leaflet, so that there was no basis for a finding that the Agency could not prove it had been enclosed: the question had not been raised. Lastly, the Tribunal erred in holding that the leaflet or letter had to specify the manner of appealing and the time applicable in the particular case, if by that it meant that the information as to the two primary time limits set out above was insufficient.[79]For Mr Hoggart, Mr Gearty sought to uphold the Tribunal’s decision on both appeals. The second letter failed to inform Mr Hoggart of his right to appeal; and the leaflet specified both primary time limits, that for an assessment decision and that for an entitlement decision, leaving it to the recipient to work out which was applicable; that did not comply with the statutory requirements. He also raised the generic issues I have considered above.[80]In my judgment, the Tribunal clearly erred in law in relation to the appeal against the decision notified in the first letter. That letter informed Mr Hoggart that he had a right of appeal; it was apparent from the letter that the decision was an interim assessment; and it was as a result reasonably clear from the enclosed leaflet what was the primary, and indeed the secondary, time limit, and it informed him what to do in order to appeal. It may be that the leaflet should have informed him specifically that he would require and would have to complete and to return an appeal form, but that is an insignificant omission. It was not necessary for the letter to specify the date by which an appeal had to be begun.[81]The position in relation to the second letter is less straightforward. It failed to inform Mr Hoggart of his right of appeal. That is indubitably a serious omission. However, the omission would have been apparent from the leaflet, assuming it was enclosed (and as mentioned above Mr Hoggart had not said that it had not been) from which he would have seen that the letter should have informed him whether he had a right of appeal, and he could then have made enquiry of the VA. In fact, it appears that he was not misled into believing that he had no right of appeal, since he sought to appeal and ultimately did so. Looking wholly therefore at the defect in the letter, given the terms of the leaflet I would not hold that it prevented time for appealing from running.[82]The finding of the Tribunal that the Secretary of State could not prove that the leaflet had been enclosed is to say the least curious, given the absence of any issue or, as I understand it, any evidence on the point. That finding was one the Tribunal could not lawfully or fairly have made.[83]In the circumstances, the Tribunal’s decision on both appeals will be quashed and the matter remitted to be determined by a Tribunal differently constituted, before whom Mr Hoggart will be able to put his reasons for his delay, which will be considered by it in accordance with the guidance as to the law contained in this judgment.

The appeal of Mr Gildea

[84]Following a claim by Mr Gildea for a war pension, by a letter dated 23 September 2004 the Secretary of State reached a decision that Mr Gildea suffered from nightmares which were attributable to service and made an interim assessment of his disablement at 6-14%.[85]The letter dated 23 September 2004 stated that there had been an interim assessment of Mr Gildea’s pensioned disablement and that that he could appeal against that decision. It referred Mr Gildea to an enclosed leaflet for information as to how and when to appeal. The leaflet was VA-Leaflet-2, entitled “Notes for People getting a War Pension living in the United Kingdom” referred to above.[86]Since this was an interim assessment decision, the primary time limit expired on 23 December 2004. The extended time limit under section 8(5) of the act and the Regulations expired on 23 December 2005.[87]Mr Gildea notified his intention to appeal in a letter dated 7 January 2006 (received 11 January 2006) and via the War Pensions Welfare Officer who telephoned on 9 January 2006. He returned the completed appeal form on 23 January 2006. Thus he did not bring his appeal until after the expiration of the secondary time limit, available if the requirements of the Late Appeal Regulations had been met.[88]The decision of the Tribunal is dated 13 July 2006. It found “that the Appeal made on 9 January 2006 against the Assessment (interim) of the Secretary of State dated 23 September 2004 may be brought out of time”. The Tribunal’s reasons were as follows:
“3. The time limit to appeal purported to expire on 23.12.04. the appeal was received on 23.01.06. 4. The reasons for the Tribunal’s decision on the application are: (a) The appeal is not made more than 12 months from the expiry of the time limit. (b) The main cause for lateness falls within the list of “prescribed circumstances” in the Regulations. (c) The appeal was brought as soon as reasonably practicable. (d) One or more of the “prescribed circumstances” applies, namely, paragraph 4(a)(iv) (exceptional circumstances). 5. Further explanation of the reasons for decision are: (a) The Decision relates to an interim assessment of 6-14% for nightmares resulting from an incident in Northern Ireland when he witnessed the death of a child (“the Incident”). (b) The appellant told us that he was misled by the Decision, because it told him that the time limit for appealing expired in December 2004 and that this was confirmed by the Veterans Agency and in his appeal form. (c) We accept his evidence, because (a) we found him credible, (b) the Veterans Agency has not been able to produce a copy of the Decision that was sent to him, which they admitted was unusual, and (c) the appeal form that was sent to the appellant which we have seen) advised him that the time limit for appealing would expire on 23.12.06. Clearly, the Veterans Agency made a mistake about the time limit for appeal and this mistake was perpetuated in the correspondence and relied upon by the appellant. (d) We find that the Decision therefore failed to comply with its mandatory obligation of informing the appellant of the time within which notice of appeal must be given: see section 9 of the Pensions Appeal Tribunals Act 1943. (e) We further find that the 3 month time limit for appealing, specified in section 8 (3)(c) of the Act, being 3 months from the date of notice of the Decision, was not engaged, since, for the reason above, there was no proper notice of the Decision. (f) Alternatively and if we are wrong in this, we find that the time limit for appealing should be treated as expiring on 23.12.05, which is what the Veterans Agency told the appellant in the Decision, by telephone and in the appeal form. Such an interpretation is compelled by section 3(1) of the Human Rights Act 1996 of the Human Rights Act 1996, which requires us to construe all legislation in a manner consistent with Article 6 of Schedule 1 to the Act. Article 6 guarantees the appellant a fair hearing and we consider that “no hearing” of his appeal, on account of breach of a misinformed time limit, would not be a “fair hearing.” (g) We note that in the appellant’s own case, his appeal should have been made by late December 2005, yet he only returned his appeal form on 23.01.06, which is one month after he believed that the time limit expired. Insofar as we need to, we consider that exceptional circumstances apply. These exceptional circumstances are a combination of: i. The intervening Christmas period, during which postal delays may have interfered with the ability to comply with the time limit in any event. ii. The fact that between September 2005 and January 2006, the appellant was waiting for a decision on a further claim, including a claim for post traumatic stress disorder arising from the Incident, and the apparent confusion by him that he could deal with both cases together, since they involved similar facts (i.e. the nature and extent of any psychological symptoms following the Incident). iii. The fact that the appellant suffers from blackouts and epilepsy, which may have compounded the difficulties described above.” i. The intervening Christmas period, during which postal delays may have interfered with the ability to comply with the time limit in any event. ii. The fact that between September 2005 and January 2006, the appellant was waiting for a decision on a further claim, including a claim for post traumatic stress disorder arising from the Incident, and the apparent confusion by him that he could deal with both cases together, since they involved similar facts (i.e. the nature and extent of any psychological symptoms following the Incident). iii. The fact that the appellant suffers from blackouts and epilepsy, which may have compounded the difficulties described above.”
[89]I think that the reference in paragraph 5(b) of the Tribunal’s reasons to December 2004 is an error and was intended to read December 2005. The Tribunal made no clear finding as to the contents of the letter received by Mr Gildea; however, it is common ground that the decision letter he received was in the common form referred to above and that a copy of VA-Leaflet-2 was enclosed. If the letter was indeed unavailable, the Tribunal could, and I think, should, have adjourned its hearing for a copy to be produced; they should not have proceeded on the assumption that it did not comply with section 9. Quite what facts were assumed by the Tribunal is somewhat puzzling, given that Mr Gildea accepts in his witness statement that he received the leaflet with the decision letter, and I have no doubt that he must have told the Tribunal that. Mr Gildea was present during the hearing before me, and impressed me with his candour in dealing with the factual issue that had arisen, namely whether his decision letter dated 23 September 2004 had been produced before the Tribunal. He said it had been.[90]In his witness statement in the present proceedings, Mr Gildea repeats that having read the leaflet he telephoned the VA and was told that his time for appealing expired in December 2005. That of course was the expiration of the secondary time limit: his being an assessment decision, the primary time limit expired in December 2004. Mr Gildea describes what happened to him during 2004, including his making an additional claim and his admission to hospital. He did not request appeal forms until about 9 January 2006, i.e., after the expiration of the secondary time limit, and after the date when he had been told the time for appealing expired.[91]If Mr Gildea had appealed by 23 December 2005 I should not have interfered with the Tribunal’s decision. But he did not do so. The letter and leaflet complied with the requirements of section 9; the leaflet informed him that his primary time limit expired 3 months after the date of the decision letter, with a possibility of an extension of 12 months. It seems to me that he should have understood that the information he was given on the telephone related to that secondary time limit. The Tribunal’s decision erred in law in that it considered the requirements of section 9 to be mandatory, and they wrongly concluded that time to appeal had not run. The reliance on Article 6 was mistaken: a limitation period is not inconsistent with Article 6, contrary to what the Tribunal seems to have believed. The exceptional circumstances referred to in paragraph (g) would, as I have indicated, been relevant if the appeal had been made by 23 December 2005; but it was not.[92]Mr Gearty on behalf of Mr Gildea had to submit that the Tribunal had a discretion to accept an appeal after the expiration of the secondary time limit. Such discretion is inconsistent with the statutory provisions.[93]I have every sympathy with Mr Gildea, but I have concluded that the Tribunal’s decision was based on a number of legal errors and it must be quashed. Since the Tribunal had no power to allow an appeal after the expiration of the secondary time limit, there is no point in remission for it to reconsider its decision. In view of his special circumstances, I hope that the Secretary of State will favourably consider exercising his power to review his decision.

The appeal of Mr Bullivant

[94]The decision letter in the case of Mr Bullivant is dated 12 October 2005 informed him that following a recent medical examination report, it was considered that his condition of left knee pain syndrome was attributable to service. The extent of disability from this condition together with his previously accepted condition was assessed at 20 per cent, and that that was an interim assessment of his pensioned disablement. The letter was in the standard form, and so included the statement:
“You can appeal against this decision. Please read the enclosed leaflet carefully, it tells you how and when to appeal. It also gives more detail about War Pensions.”
Leaflet VA-Leaflet-2 was enclosed.[95]On 2 November 2005 Mr Bullivant telephoned to request appeal forms. He wrote to request forms on 5 November 2005. Appeal forms were issued on 4 November 2005. On 12 January 2006 Mr Bullivant requested re-issue of the appeal forms and on that date they were reissued.[96]On 20 January 2006, the appeal forms were received from Mr Bullivant by the Secretary of State (the relevant recipient in accordance with rule 4(1) of the PAT Rules). Thus Mr Bullivant’s appeal was brought outside the 3-month primary time limit, which expired on 12 January 2006, but within the further 12-month extended time limit prescribed by regulation 3 of the Late Appeal Regulations (which expired on 12 January 2007).[97]On the forms, Mr Bullivant filled in the box which provides for the appellant to give reasons as to why the appeal is late. He stated that “I sent in a written appeal as directed on a previous telephone conversation. I was never informed that the form should also be completed.”[98]The Secretary of State referred the matter to the Tribunal on 2 February 2006. He submitted that Mr Bullivant had “not shown any prescribed circumstance capable of falling within Regulation 4(a)”. The Secretary of State further observed that Mr Bullivant had been issued with appeal forms on 4th November that were never returned; on the day the time limit ran out, he had called requesting further appeal forms.[99]In its decision dated 9 May 2006, the Tribunal held that Mr Bullivant’s appeal against the Interim Assessment Decision was not out of time because the decision notice was defective and as a result, time had not started to run. The basis for this finding was that the notice did not comply with section 9 of the Act which required that a notice of decision from which there is a right of appeal should specify that fact and the “time within which and the manner in which notice of such an appeal must be given.” The PAT concluded:
“The notice is therefore not a valid decision notice and the Appellant’s rights have not yet been triggered. The notice itself should comply with s 9 on its face. S 9 is a mandatory provision.”
[100]For the reasons already given, that reason was wrong in law. The Tribunal should have considered whether Mr Bullivant was entitled to an extension of time under the Late Appeal Regulations. It did not do so. It follows that the Tribunal’s decision must be quashed and the matter remitted to it for consideration in accordance with the law as explained in this judgment.

The appeal of Mr Powell

[101]On 1 April 1996 Mr Powell was granted a war pension in respect of a prolapsed intervertebral lumbar disc. By a claim form dated 15 December 1999 he applied to the Agency for a pension in respect of the further conditions, namely arthritis in both ankles, arthritis in the hips and capsulitis (restricted rotation) in the right shoulder. That application was rejected by the Agency on the basis that these conditions were not attributable to or aggravated by his period of service. The rejection was notified to Mr Powell on 21 January 2001. According to the Tribunal’s decision dated 24 April 2006, which is the subject of these judicial review proceedings, he agreed that he had received a decision letter together with a notice giving his rights of appeal.[102]By a letter dated 11 August 2005, Mr Powell indicated that he wished to appeal against that decision. The appeal form was completed by him and sent by him under cover of a letter dated 23 August 2005. It was received by the Agency on 24 August 2005.[103]As has been seen, at that date there was no time limit for appeals, but one was introduced by the CSPSSA. As a result, the primary time limit for an appeal by Mr Powell expired on 9 April 2002 and the secondary time limit one year later. His appeal was outside both these time limits.[104]The Secretary of State contended to the Tribunal that “this application has been brought outside all appeal time limits, and in the opinion of the Secretary of State cannot be permitted”.[105]By its decision dated 24 April 2006 the Tribunal allowed Mr Powell’s appeal against that decision and permitted the appeal to proceed. In its reasons, it stated that: The difficulty in this case was that the time limits for such appeals were altered by the Pensions Appeal Tribunals (Late Appeals) Regulations 2001 … By that statutory instrument the time limits were reduced. The commencement date was 9 April 2001 but it was not retrospective. Thus the application of a 12 month limitation period in this case could not be based on those regulations. … There are two ways of approaching this matter. Strictly, the Appellant’s right to appeal expired by 21 January 2002 and he chose not to appeal. However, that flies in the face of the transitional provisions which should have been notified to him and which the Tribunal have found were not so notified. … The VA sought to argue … that he was outside the 12 months long stop brought in by the new legislation. Whilst his appeal notice did fall outside the 12 months, that new legislation was not applicable to [Mr Powell’s] case and accordingly the VA’s argument on paper must also fail. The law to be applied is that prior to 9 April 2001”.[106]Thus the Tribunal applied the Act as it was prior to 9 April 2001 and proceeded on the basis that there was no time limit within which an entitlement appeal had to be brought. On that basis it has permitted the appeal to proceed.[107]For the reasons I have already given, the Tribunal erred in law. The Act was amended so as to impose a time limit on decisions made before 9 April 2001. The suggestion that unless the Secretary of State notified a claimant that there had been a change in the law the new statutory provisions had no effect, and he could not rely on them, is unfounded. It follows that the Tribunal’s decision must be quashed. Since the secondary time limit had expired before the appeal was commenced, remission would serve no useful purpose.

The appeal of Ms Lockyer-Evis

[108]On 7 December 1999, the Secretary of State accepted that Ms Lockyer-Evis’s condition of depressive disorder (‘DD’) was aggravated by service and assessed her disability at 20% (combined with another non-psychological condition). On 11 May 2002, Ms Lockyer-Evis lodged a late appeal (“the DD Entitlement Appeal”) against this decision, arguing that her DD was attributable to, and not merely aggravated by, service.[109]On 12 May 2002, Ms Lockyer-Evis lodged a further, separate claim for a pension for the condition of Post Traumatic Stress Disorder (‘the PTSD Claim’).[110]On 21 June 2002, the Tribunal allowed Ms Lockyer-Evis’s DD EntitlementAppeal to proceed although it was late, on the ground that there was a reasonable excuse for the whole period of delay. Its decision referred to the Secretary of State’s decision of 7.2.99, presumably a misreading of 7.12.99.[111]On 6 January 2003, the Veterans Agency wrote to Ms Lockyer-Evis a standard form letter. It informed her: We have looked at your claim and confirmed that the following diagnosed conditions have been made worse by your service. We call this aggravated by service. POST TRAUMATIC STRESS DISORDER

POST TRAUMATIC STRESS DISORDER

[112]The letter stated that the VA’s doctors had made an interim assessment of her pensioned disablement. It continued: Your condition Post Traumatic Stress Disorder Depressive Disorder has been accepted by the Agency on the basis that it was made worse by service, but not that it was entirely due to service.

Depressive Disorder

(s) ; Depressive Disorder Depressive Disorder

[113]The letter stated that Ms Lockyer-Evis could appeal against the decision and referred her to the enclosed leaflet. It included information as to how to appeal and informed her that she must appeal within three months of the date of her decision letter if it was an interim (short-term) assessment or six months of that date for all other decisions carrying a right of appeal. It also set out the circumstances in which a late appeal could be accepted.[114]At a hearing on 23 October 2003, the Tribunal adjourned the hearing of the DD Entitlement Appeal to allow for further medical evidence.[115]On 23 May 2004, Ms Lockyer-Evis sent correspondence to the VA relating to the DD Entitlement Appeal, which included material relating to PTSD. On 10 June 2004, she sent medical evidence “for the entitlement appeal”.[116]On 24 June 2004, Ms E Airnes of the Veterans Agency wrote to Ms Lockyer-Evis in relation to the material that she had sent regarding her war pension appeal. She noted that Ms Lockyer-Evis had referred in the material she had sent to sciatica. Ms Airnes indicated that it was unclear whether Ms Lockyer-Evis intended to claim in relation to sciatica as being caused or exacerbated by service and she had therefore arranged for a claim form to be sent to her. In addition, Ms Airnes confirmed to Ms Lockyer-Evis her that her DD Entitlement Appeal was continuing, but pointed out that the post traumatic stress disorder was not included in pending war pension (i.e. the DD entitlement) appeal.[117]By letter dated 2 July 2004, Ms Lockyer-Evis wrote to the Veterans Agency enquiring why the rejection of her PTSD Claim was not under appeal. By letters of 20 July 2004 and 2 August 2004, the Veterans Agency explained to Ms Lockyer-Evis that her claims in respect of DD and PTSD were the subject of separate decisions, that no appeal had been lodged against the decision rejecting her PTSD Claim, and that any appeal would now be late. An appeal form was enclosed with the second letter.[118]Ms Lockyer-Evis completed and returned the appeal form (‘the PTSD Entitlement Appeal’), which was received by the Veterans Agency on 16 August 2004. The VA passed it to the Tribunal on 17 August 2004. The VA observed that the PTSD Entitlement Appeal had been brought outside all appeal time limits and could not therefore be permitted; and that Ms Lockyer-Evis had been aware of the late appeal process when she made her first appeal, and therefore should have been aware of the need to request an appeal when she received the Rejection Decision.[119]On 28 April 2005, the Tribunal decided to allow the PTSD Entitlement Appeal to proceed. Using the “tick boxes” on the relevant pro forma, the Tribunal gave the following reasons for its decision: The PTSD Appeal was not made more than 12 months from the expiry of the time limit; The main cause for lateness fell within the prescribed circumstances in the Regulations (without indicating which of those circumstances applied); The PTSD Appeal was brought as soon as reasonably practical; and One or more of the prescribed circumstances set out in paragraph 4 of the Late Appeal Regulations 2001 applied.

The PTSD Appeal was brought as soon as reasonably practical; and

[120]The Tribunal further explained its reasons as follows: The decision of 6/1/2003 allows aggravation of PTSD but not entitlement and does not explain that the Appellant has time limit for any appeal. Confusingly the form described the rejected condition as also being POST TRAUMATIC STRESS DISORDER DEPRESSIVE DISORDER. When she appealed psychiatric issues were being dealt with in their entirety. She learnt of her error when attending her PAT hearing. The Appellant then, within 12 months from the expiry of the primary limit, was notified by letter from the VA dated 24/6/04 that her “entitlement appeal against the condition depressive disorder not being attributable to service is continuing, however I should point out that the condition post traumatic stress disorder was not included in that appeal.” Ms Lockyer-Evis responded to this on 2/7/04 , receiving a reply dated 20/7/04 that if she wished to appeal against aggravation for PTSD a late appeal form would be sent. The form was sent on 2/8/04, completed by Appellant on 9/8/04 and received back 16/8/04. In our opinion the Appellant acted as quickly as she could once notified that this aspect was not being dealt with. Had the VA sent the appeal forms out when they became aware of the confusion at the earlier PAT then the 12 month period from the original primary limit would again have been met. The Appellant clearly indicated her wish to appeal within that period. It would be contrary to natural justice and the equality of arms principles in the Human Rights Act to allow the Secretary of State to take advantage of such omissions namely the delay in dealing with correspondence and the error on the face of the original decision notice. The Appellant was also prevented by her severe illness from understanding and dealing with the situation initially.[121]The principal ground for judicial review is that the Tribunal had no discretion to allow Ms Lockyer-Evis’s appeal to proceed after the expiration of the secondary time limit. Moreover, the statement that the appeal was not made more than 12 months from the expiry of the (primary) time limit is plainly wrong. Both of these grounds are clearly well-founded. The terms of section 8 are clear.[122]I would add that the only lack of clarity in the correspondence was the reference to “Post Traumatic Stress Disorder Depressive Disorder” in the decision letter of 6 January 2003. But the letter contained a separate decision and informed Ms Lockyer-Evis that she could appeal against that decision. She did not do so within the primary or the secondary time limit.[123]In a letter to the Court, the President of the Tribunal stated that the decision letter did not refer to Ms Lockyer-Evis’s right of appeal. That is simply wrong.[124]This is another case in which I have sympathy with the Interested Party, but where I have no doubt that the Tribunal made a decision it had no power to make. Its decision must be quashed. I add that I was told that Ms Lockyer-Evis has not made any request to the Minister for him to review the decision on PTSD. She should do so, and I again express the hope that it will be favourably considered.

The appeal of Mr Hudson

[125]By the VA’s letter dated 20January 2004 Mr Hudson was notified that his claim for a pension based upon his condition of Bipolar Disorder had been accepted on the basis that it had been aggravated by service but that it was not entirely due to his service in the Army (“the Entitlement Decision”). It stated that the VA had assessed Mr Hudson’s disablement from Bipolar Disorder together with his previously accepted acute polymorphic psychotic episode, but confirmed that the level of the assessment was still to be 1-5 per cent. The letter was in standard form, and stated that he could appeal against the decision, and referred him to the enclosed leaflet. The relevant leaflet was VA-Leaflet-2.[126]On 14 November 2005 the relevant form for appeal against the Entitlement Decision was received from Mr Hudson. Thus Mr Hudson’s appeal was apparently brought outside the 6-month primary time limit for an entitlement appeal, which expired on 20July 2004, and outside the further 12-month secondary time limit. The Secretary of State referred the matter to the Tribunal on 16 December 2005[127]The Tribunal’s decision is dated 24 March 2006. It found “that the Appeal made on 14 Nov 2005 against the Entitlement [sic] of the Secretary of State dated 20.01.2004 may be brought out of time.” In its explanation of the reasons for its decision, it stated that the decision notice did not comply with the requirements of section 9 of the Act, and that accordingly time had not started to run for the purposes of section 8. The leaflet was not part of the decision notice. Furthermore it was not sufficient, in order to secure compliance with section 9, to specify appeal rights in general; instead, the decision notice must set out the applicable time limits and method for appeal in the particular case. In any event, that the Secretary of State was unable to prove that the Leaflet had been enclosed with the decision letter on this particular occasion.[128]In his witness statement in the present proceedings, Mr Hudson explains how it was that he appealed out of time. Some of the delay was clearly not his fault, but I do not think that can be said of the entirety of the 18-month period in question. He does not dispute receiving the leaflet referred to in his decision letter, and he did not suggest that it had been omitted in the documents he submitted to the Tribunal. He does not controvert the assertion in the Secretary of State’s Statement of Facts that he did not raise the issue before the Tribunal. In these circumstances, the Tribunal could not fairly or properly or indeed rationally have based their decision on the assumption that the Minister could not prove that the leaflet had been enclosed with the decision letter. There was no issue as to his receipt of the leaflet (which he could in any event have requested from the VA if it had been omitted).[129]In these circumstances, the Tribunal could not have found, consistent with the provisions of the Act as I have interpreted them, that it had power to hear Mr Hudson’s appeal, which had been submitted outside the secondary time limit. Its decision will be quashed.

Cited in 1 later judgment