Secretary of State for Defence, R (on the application of) v The Pensions Appeal Tribunal [2008] EWHC 2168 (Admin)

[2008] EWHC 2168 (Admin)Case No CO/5769/2006
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Monday, 14th July 2008
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE UNDERHILL
Between
THE QUEEN ON THE APPLICATION OF SECRETARY OF STATE FOR DEFENCEClaimantv
Between
THE PENSIONS APPEAL TRIBUNALDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr Clive Lewis QC (instructed by Treasury Solicitor) appeared for ClaimantMr Guy Opperman and Mr Mark Green (instructed by Moore and Blatch) appeared for Defendant
J U D G M E N T
[1]MR JUSTICE UNDERHILL: The issue in this application for judicial review is whether the Pensions Appeal Tribunal has power to entertain an appeal against a refusal by the Secretary of State for Defence to review the amount of a war pension or gratuity to a disabled serviceman. The parties are the Secretary of State, who is the claimant; the Tribunal, which is the defendant; and Mr Harry Hornsby, the individual in whose case the issue arises, who is an interested party. The claimant is represented before me by Mr Clive Lewis QC. The Tribunal is not represented and has made no submissions. Mr Hornsby has been represented by Mr Guy Opperman and Mr Mark Green of counsel, who, to their credit, have appeared pro bono. The Statutory Provisions[2]The procedures for the award of war pensions (in which term I include gratuities) were at the time material to these proceedings regulated by the Naval, Military and Air Forces Etc (Disablement and Death) Services Pensions Order 1983 (SI no 883 of 1983). The provisions with which I am concerned fall primarily under Parts II and III of the Order.[3]Part II is headed "General Principles of Awards" and deals with the question of whether a serviceman has suffered disablement or death "due to" his service in the armed forces. Article 3 provides as follows: "Subject to articles 3A and 3B, awards under this Order may be made where the disablement or death of a member of the armed forces is due to service before 6th April 2005." (The significance of the date of 6th April 2005 is that a new scheme came into effect from that date. That, however, can be ignored for present purposes.) Articles 3A to 3D deal with various procedural matters.[4]Articles 4 and 5 deal respectively with the case where a claim is made within or following the period of seven years from the termination of service. The essential difference between the two cases lies in the burden of proof.

(a) Article 6 provides for the Secretary of State to:

"... withhold, cancel or reduce any award ... in any case in which the injury in question ... was caused or contributed to by the serious negligence or misconduct of the member of the forces in question."
[5]Part III of the Order is headed "Awards in Respect of Disablement". As Mr Lewis points out, in a disablement case the final award is the product of essentially two decisions by the Secretary of State -- first, whether the claimant has suffered the disablement due to his service, which is the subject of Part II; and, secondly, an assessment by the Secretary of State of the extent or degree of such disablement, which is the subject of Part III.[6]Article 9 contains the primary provisions covering the assessment of the degree of disablement, which by paragraph 3 is to be expressed as a percentage. Paragraphs 4A to 4E make special provision for the case of disablement in the form of noise induced sensorineural hearing loss. They emphasise that only hearing loss due to service, not hearing loss due to age or other factors, will be taken into account. Provision is made for the forms of tests which may be relevant to that question. These particular provisions reflect the policy of the Secretary of State, based on his understanding of the medical evidence, that once a person is removed from the source of the noise which causes injury to the hearing any hearing loss suffered as at that date will not deteriorate as a result of that original exposure, although it may deteriorate as a result of other factors such as age or exposure to different sources of noise.[7]Article 11 provides that in the case of disablement of less than 20 per cent a claimant is to be awarded a gratuity.[8]I need not address the remaining parts of the 1983 Order, save, importantly, to note one provision of Part VI, namely article 67. This gives the Secretary of State a power to review decisions made under the substantive provisions of the Order, including a decision assessing the degree of disablement of a claimant.[9]Paragraphs (1) to (2A) of article 67 read as follows:
"(1) Subject to the provisions of paragraphs (2A), (3) and (4) and to the provisions of paragraph (8), any decision accepting or rejecting a claim for pension or any assessment of the degree of disablement of a member of the armed forces or any final decision that there is no disablement or that the disablement has come to an end many be reviewed by the Secretary of State at any time on any ground. (2) Subject to the provisions of paragraphs (3), (4), ... (7A) and (8), any award under this Order may be reviewed by the Secretary of State at any time if the Secretary of State is satisfied that -- (a) the award was made in consequence of ignorance of, or a mistake as to, a material fact, or of a mistake as to the law; (b) there has been any relevant change of circumstances sice the award was made; (c) the award was based on a decision or assessment ot which paragraph (1) of this article applies, and that decision or assessment has been revised. (2A) Any assessment or decision made, given or upheld by the Pensions Appeal Tribunal under section 8 of the War Pensions (Administrative Provisions) Act 1919 or the Pensions Appeal Tribunals Act 1943 and 1949 may be reviewed by the Secretary of State at any time if the Secretary of State is satisfied that there has been a relevant change of circumstances since the assessment or decision was made, including any improvement of deterioration in the disablement in respect of which the assessment was made."
[10]It is necessary to note the distinction between the form of paragraphs 1 and 2A. The general position as provided for in paragraph 1 is that a decision or assessment can be reviewed by the Secretary of State "at any time on any ground"; but that is qualified by paragraph 2A in the case where there has been an appeal to the Pensions Appeal Tribunal. In that case a review is only possible where the Secretary of State:
"... is satisfied that there has been a relevant change of circumstances."
I need not set out paragraphs 3 and 4 of article 67, but I should set out in full the terms of paragraph 5, which reads as follows:
"Subject to the provisions of paragraphs 3 and 4, on a review under this article the Secretary of State may maintain or continue, vary or cancel the decision, assessment or award and any revised decision, assessment or award shall be such as may be appropriate having regard to the provisions of this order."
[11]The Pensions Appeal Tribunal was established under the Pensions Appeal Tribunals Act 1943. It is important to appreciate the structure of the Act. Each of sections 1 to 5 gives a right of appeal to the Tribunal in a series of particular circumstances specified in the section in question.[12]Sections 1 to 3 give such a right in the case of the rejection by the Secretary of State of claims for war pensions on the ground (essentially) that they are not attributable to the relevant service or have not been aggravated by it: section 1 is concerned with members of the armed forces and sections 2 and 3 with civilians falling within the scope of the war pensions scheme.[13]Section 4 allows for an appeal where the Secretary of State has relied on his rights under Article 6 of the 1983 Order, which I have summarised above (or, no doubt, its predecessors).[14]Section 5 provides for appeals against both interim and final assessments made by the Secretary of State of the extent or degree of disablement, i.e (see para 5 above) the second of the two issues which go to the making of an award.[15]Section 5A was introduced by section 57(1) of the Child Support Pensions and Social Security Act 2000. It is entitled "Appeals in other cases" and reads, as amended, as follows:
"(1) Where, in the case of a claim to which this section applies, the Minister makes a specified decision -- (a) he shall notify the claimant of the decision, specifying the ground on which it is made, and. (b) thereupon an appeal against the decision shall lie to the Tribunal on the issue whether the decision was rightly made on that ground. (1A) This section applies to -- (a) any such claim as is referred to in section 1, 2 or 3 of this Act; (b) a claim under a scheme mentioned in section 1(2) of the Armed Forces (Pensions and Compensation) Act 2004 (compensation schemes for armed and reserve forces). (2) For the purposes of subsection (1), a 'specified decision' is a decision (other than a decision which is capable of being the subject of an appeal under any other provision of this Act) which is of a kind specified by the Minister in regulations ..."
The regulations referred to in subsection (2) are the Pensions Appeal Tribunals (Additional Rights of Appeal) Regulations 2001 (SI no 1031 of 2001). I will have to return to the details of their provisions in due course. The Facts[16]Mr Hornsby was born in 1924. He served with distinction in the Fleet Air Arm between 1942 and 1946. On 8th January 1992 he claimed a war pension for partial deafness and ringing in his ears arising out of his war service. On 20th August 1992 a final assessment was made of a 6-14% disability for bilateral noise-induced sensorineural hearing loss. On 9th September 1996 he sought a review of that assessment. The Secretary of State entertained that review but on 20th February 1997 issued a decision maintaining the final assessment already made. Mr Hornsby appealed against that decision and on 8th June 1999 the Pension Appeals Tribunal issued a decision confirming the original assessment. It accordingly remained an assessment of a 6-14% disablement, with the result that Mr Hornsby remained entitled only to a gratuity.[17]Some six years later, on 5th September 2005, Mr Hornsby wrote to the Veterans Agency (under its earlier name of the War Pensions Agency), which is the executive agency of the Ministry of Defence dealing with war pensions matters. He alleged that his hearing had deteriorated over the last few years and enclosed an audiogram and letter from his GP supporting that allegation. He asked for a "further contribution". That was in practice, though not in terms, an application for a review under article 67; and it appears to have been so understood by the Veterans Agency, because on 7th September 2005 they wrote to Mr Hornsby explaining the position about entitlement to a review. In particular the letter said this:
"Under the War Pensions scheme your assessment can only include hearing loss that is due to your service or war time experience. If you have hearing loss which is due to any other cause, we cannot include it in your assessment. It is a medical fact that once removed from a source of harmful noise your noise induced sensorineural hearing loss will not get any worse. If your hearing was damaged by noise during your service or during war time that hearing loss will stay the same. Overall hearing loss may worsen, but this will be because of other factors such as age and may be noise from work. Hearing can also get worse because of illnesses or other conditions that affect the ears."
That letter therefore expressed the same understanding of the medical position as underlies the provisions of article 9(4A) to (4E) of the 1983 Order to which I have referred at para 6 above. It is not for me on this application to express any view on whether the Secretary of State's medical understanding is correct, although it is right to record that it is disputed by Mr Hornsby.[18]Mr Hornsby was not deterred by that response, and on 16th September 2005 he wrote again to the Agency, this time asking explicitly for a review on the grounds of a deterioration in his hearing. On 4th November 2005 the Agency wrote to Mr Hornsby stating:
"I am writing in connection to your recent explanation for a deterioration claim of the condition bilateral sensorineural hearing loss (noise induced). I am sorry but there are no grounds for reviewing the decision upheld by the Pensions Appeal Tribunal on 08/06/1999."
[19]On 8th December 205 Mr Hornsby submitted an appeal against that decision. The appeal was initially lodged with the Veterans Agency but was forwarded by it to the Tribunal. The Secretary of State submitted to the Tribunal that it had no jurisdiction to entertain the appeal, on grounds which I shall have to review in due course. But on 27th April 2006 the Tribunal issued a decision rejecting that contention. The formal decision reads as follows:
"The tribunal finds that Mr Hornsby has the right to appeal against the Secretary of State's refusal to review the Pension Appeal Tribunal's decision of 8th June 1999. The tribunal allows the appeal."
[20]That decision was elaborated and summary reasons given on the following page of the form. Paragraphs 1 to 3 read as follows:
"1. The Decision of the Tribunal is to allow the Appeal. 2. This is an Appeal under Section 5A of the Pensions Appeal Tribunals Act 1943 (as amended) against a Specified Decision of the Secretary of State to reject a claim in respect of Review. 3. In allowing the appeal the Tribunal also decides that: Whilst technically the Tribunal finds for the reasons given below, that Mr Hornsby has a right of appeal against the decision not to revise/review (see below) we are of the opinion that any such appeal would have no merit, although we accept that this is not a matter for this Tribunal today."
I need not read paragraphs 4 to 6. Paragraphs 7 to 8 are headed "Reasons for Decision" and read as follows:
"7. We have applied the legal framework set out in the relevant Article(s) of the Naval, Military and Air Forces etc (Disablement and Death) Service Pensions Order 1983 (as amended). 8. Having assessed the evidence of the Tribunal's findings of facts material to the appeal are, in summary: The Appeal was presented to us as an appeal against a refusal to Review, the VA arguing before us today that as the PAT/Additional Rights of Appeal Regulations 2001 does not include a decision not to Review as one of the Specified Decisions in respect of which a right of appeal is given, therefore there can be no right of appeal in this case. The Tribunal drew the VA representative's attention to the fact that in other cases the VA has notified appellants that a Review has been undertaken on applications, but that the original decision is still appropriate 'and that' there is a right of appeal against that decision. The issue is bedevilled by the fact that in Article 67 the word 'Review' appears to be used to mean different things. It appears that at various points it is used to mean 're-view', i.e. look at again, or 'to undertake a process known to the VA as 'review' or to mean 'revise' (i.e. change). In this appeal, Mr Hornsby provided evidence which in the Tribunal's decision must have led someone (possibly a lay person) in a decision on the existing file -- namely, that that evidence was insufficient to merit a change in the PAT decision and after which they defined their next step as being a decision not to review which in some way which is not made clear to the Tribunal, differs from other cases in which they receive evidence but then notify an appellant that the original decision remains appropriate and that this gives him 'a fresh right of appeal'."
[21]It is that decision which is the subject of the present proceedings. The proceedings were commenced by the Secretary of State on 12th July 2006. The reason for the delay in their coming to a hearing is, at least in part, that the Secretary of State initially issued them on a precautionary basis, contending that the proper course was for him to appeal to the Pensions Appeal Commissioners. However, the Commissioners took the view that this matter was properly to be dealt with by way of judicial review. In the light of that response these proceedings, which had effectively lain dormant, were reactivated. Sullivan J gave permission on 17th May 2007. The delay since that date is the regrettable result of the pressure of business in this court. The Issue[22]The Secretary of State's case is very straightforward. He submits that the Pensions Appeal Tribunal only has power to entertain an appeal against decisions of a kind specified in the 1943 Act or in the 2001 Regulations. The decision which is the subject of the Tribunal's decision and which is challenged in these proceedings is characterised by the Tribunal itself, Mr Lewis says correctly, as a decision not to undertake a review pursuant to Article 67(2) of the Secretary of State's earlier decision of 20th February 1997 (as upheld by the Tribunal on 8th June 1999). That decision is not, he submits, a decision falling under sections 1 to 5 of the 1943 Act. If it is an appealable decision at all, it must be by virtue of section 5A, as indeed the Tribunal expressly recognised: see paragraph 2 of the decision which I have set out above. But a decision not to undertake a review is not a decision of a kind "specified in the 2001 Regulations". I did not when going through the statutory provisions set out the terms of those regulations. The relevant regulation is regulation 3. That reads as follows:
"New appeal rights: the Service Pensions Order. 3(1) Each decision -- (a) which is made in exercise of any provision of the Service Pensions Order listed in Schedule 1; and. (b) which -- (i) refuses or discontinues an award; (ii) establishes or varies the amount of an award; or (iii) establishes or varies the date from which an award has effect, shall be a specified decision. (2) Any decision as to the amount to be deducted from an award by virtue of any of the following provisions of the Service Pensions Order -- (a) article 55 (adjustment of awards in respect of other compensation); (b) article 59 (abatement of awards in respect of social security benefits); or (c) article 60 (payment of public claims out of pensions), shall be a specified decision."
Plainly the present case does not fall under subparagraph (2). As for subparagraph (1), Schedule 1 to the Regulations, as referred to under head (a), sets out a long list of articles from the 1983 Order but these do not include article 67.[23]Thus, submits Mr Lewis, the Secretary of State's decision not to carry out a review does not fall within head (a) of subparagraph (1) and cannot be a specified decision for the purpose of section 5A of the 1943 Act. Nor, he might have added, is it easy to see that it falls within head (b).[24]I can see no answer to that submission. I have considered carefully the points made by the Tribunal in its reasons and specifically in paragraph 8 as set out above. These appear to be threefold.[25]First, it is said that the Veterans Agency had in the past acknowledged that there was a right of appeal against decisions taken on a review. That, however, is by itself entirely consistent with the Secretary of State's position. As Mr Lewis submitted, it is necessary to distinguish between (a) "the decision whether to undertake a review" -- that is, in a case falling within article 67(2(a), the decision whether there has been a relevant change of circumstances -- and (b), if such a review is undertaken, the decision on that review. The latter would indeed be an appealable decision, but the former is not.[26]Secondly, it is said by the Tribunal that the term "review" is used inconsistently within article 67. With respect, I cannot agree. So far as I can see, whenever the article speaks of "review" it refers to the process of (re)considering the original decision, whether of the Secretary of State or the Tribunal. The decision at the end of that process is characterised as "maintaining, continuing, varying or cancelling" the original decision (depending on the outcome): see paragraph 5. The term "revised", which appears in paragraph 5 and also in paragraph 2(c) and to which the Tribunal refers, appears to be simply a compendious term to cover such a decision.[27]Thirdly, it is said by the Tribunal that someone must have made a decision -- described by it as a decision "that [Mr Hornsby's] evidence was insufficient to merit a change in the PAT decision" -- which underlay the purported decision not to undertake a review; and that decision is in practice indistinguishable from a substantive decision not to vary the original decision of June 1999. In other words, though the Tribunal is too polite to put it this way, the Secretary of State is playing with words. Again, I do not agree. I can see a clear and real distinction between, on the one hand, the decision whether a relevant change of circumstances has been shown triggering a power (and, no doubt, in practice a right) of review, and, on the other hand, a decision on such review whether to maintain, continue, vary or cancel the original decision. One example given by Mr Lewis was where changes in medical understanding suggested a different aetiology for a particular condition than had previously been recognised: such a change would be a sufficient reason to justify a review, but it would remain for consideration whether in any individual case the claimant could establish that the new medical understanding impacted on his particular circumstances. Another example would be where a claimant discovered potentially relevant fresh evidence: the Secretary of State might well decide that that evidence merited the carrying out of a review in order to enable the evidence in question to be assessed, but the eventual substantive decision would depend on an assessment of the actual relevance and the reliability of the evidence in question. I accept that in some cases, of which this may well be a good example, there might be a degree of overlap between the considerations relevant to the threshold question, and, if a review were granted, the considerations relevant to the ultimate decision. But that does not mean that the two exercises are identical. The Secretary of State was in the present case clearly and explicitly deciding only that, because of his understanding of the medical impossibility of subsequent deterioration in hearing caused by the original injury, the fact that Mr Hornsby's hearing had deteriorated did not amount to a relevant change of circumstances.[28]Mr Opperman and Mr Green in their skeleton argument on behalf of Mr Hornsby, succinctly and helpfully developed orally by Mr Opperman, made three broad submissions which are put as follows:
"(1) The Pensions Appeal Tribunal did in fact have jurisdiction under statute to allow the appeal. (2) Although the PAT's decision stated that the disablement entitlement would not be reviewed, it was in fact reviewed. (3) The right to appeal can be construed as being part of the PAT's system."
[29]As to (1), I have largely dealt with this point. Mr Opperman and Mr Green submit that a refusal to review can be treated as a "final assessment of the degree of the claimant's disablement" and so be appealable under section 5(2) of the 1943 Act. That was not, of course, the basis of the Tribunal's decision and, with respect, it seems to me unarguable.[30]As to (2), this is essentially the same point as that made by the Tribunal. Mr Opperman's submission was that the Secretary of State's letters were tantamount to a substantive fresh decision to maintain the original decision of the Pension Appeals Tribunal. I have already rejected that submission. He submitted that it was remarkable that no evidence had been adduced in the form of a witness statement from the author of those letters supporting the construction which the Secretary of State put on what had occurred. In my view, such evidence was wholly unnecessary; the letters in question speak for themselves.[31]As to (3), this is perhaps slightly oddly expressed, but Mr Opperman's point before me was that the decision whether to allow a review in circumstances such as Mr Hornsby's was an important decision and that it was most improbable that Parliament could have intended that claimants in his position should not have a right of appeal in relation to such a decision. I can, however, see nothing surprising in a construction of the statute which has the result contended for by Mr Lewis. It is easy to see why the draftsman might have wished to avoid a situation where a disappointed claimant could invoke an absolute right of appeal simply by seeking a review, or indeed (as it might be) by repeated requests for a review. There is nothing outlandish in a threshold being provided for of the applicability of which the Secretary of State is the only judge. That is indeed, as is well-known, the position with purported "fresh claims" under rule 353 of the Immigration Rules. The Secretary of State's decisions taken in that context must, of course, be fair and rational and they will be susceptible to judicial review if they are not. Mr Opperman says that it is unlikely that Parliament intended claimants to have to go to the trouble and expense of proceedings for judicial review when there was an obvious alternative route for challenging such decisions, namely by appeal to the Tribunal. But the plain fact is that that is precisely the effect of the provisions that Parliament has enacted. As I say, I can see nothing particularly surprising in that result.[32]Mr Opperman also drew my attention in his oral submissions to a statement from Mr Hornsby in his correspondence to the effect that he had been told, it is not quite clear by whom, at the time of the original decision that it could be reviewed after five years; and also to the terms of a standard-form letter from the Veterans Agency responding to an application for a review which includes the phrase "we can increase your war pension if your accepted condition has worsened". He said that it was clear from these materials that Mr Hornsby had been given the impression that a deterioration in his hearing would be a sufficient ground for a review. He accepted, however, that the statements in question, even if they had the meaning which Mr Hornsby asserted, could not alter the legal position as argued in the present case: he relied on them rather in support of his proposition that a review had in fact been carried out. I cannot see that they support that case in any way.[33]For all those reasons, I have reached the clear conclusion that the decision of the Pension Appeals Tribunal dated 27th April 2006 was wrong in law and must be quashed.

Cited in 1 later judgment