Secretary of State for Defence, R (on the application of) v Pensions Appeal Tribunal [2008] EWHC 3248 (Admin)

Case No C0/5206/2007[2008] EWHC 3248 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 21 st November 2008
Strand
London WC2A 2LL
Before
MR JUSTICE BLAIR
Between
THE QUEEN ON THE APPLICATION OF THE SECRETARY OF STATE FOR DEFENCEClaimantPENSIONS 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 Keith Morton (instructed by the Secretary of State) appeared for Claimant for THE DEFENDANT DID NOT APPEAR AND WAS NOT REPRESENTED
J U D G M E N T
[1]This claim for judicial review relates to time limits applicable in respect of appeals to the Pensions Appeal Tribunal, specifically being war pensions. The issue, in short, is whether the Pensions Appeal Tribunal, sitting on 23 March 2007 in Plymouth, reached a decision which it had no power to reach on the basis that the statutory time limits for an appeal had passed and there was no power to extend those rights of appeal. HHJ Hickinbottom, as he then was, gave permission to appeal on 18 January 2008.[2]The interested party, Mr Burrows, is the pensioner concerned. I should record that he has not been here for the hearing this morning. Mr Keith Morton, who has appeared for the claimant -- the Secretary of State for Defence -- has consequently sought to put before the court all available material that enables me to deal properly and fairly with the matter in Mr Burrows’ absence.[3]So far as the background facts are concerned, Mr Burrows was a member of the Parachute Regiment. He is a man now in his late sixties, having been born in 1940. He was medically discharged in 1962 from the army as a result of a condition which was unrelated to his service. In 1981 he claimed a war pension in respect of a collapsed right lung. Though rejected by the Secretary of State, the Pensions Appeal Tribunal allowed an appeal in 1984 against that decision, finding that the collapsed right lung was attributable to service. Following that decision, it is right to say that there have been a not inconsiderable number of other claims by Mr Burrows. I need only concern myself with a claim which led to a letter to him, dated 17 February 2005. That letter was to do with a different condition in respect of which Mr Burrows was making a claim for a war pension, namely noise-induced hearing loss. There were in fact two letters of 17 February 2005, both from the Veterans’ Agency. The other letter had to do with an interim assessment in relation to anxiety disorder, and I can leave that out of the account because there was a subsequent appeal in relation to that matter which was dismissed by the Pensions Appeal Tribunal.[4]However, so far as the hearing loss letter is concerned, in summary what the Veterans’ Agency -- which I should say is an executive agency of the Ministry of Defence -- said was that scientific understanding of the condition had changed. Mr Burrows was at the time being paid a level of pension that reflected the previous understanding that in his case the hearing loss was due to service; however, in the light of current scientific understanding, this letter informed him of the fact that it was now believed that the previous assessment would be too high. However reasonably, if I may say so, the Veterans’ Agency decided that it would not change the amount that Mr Burrows was receiving, and that amount was, as is clear from later letters, based on an assessment of 60%. So essentially what was being said was that the war pension that he was receiving would remain unchanged.[5]He was nevertheless dissatisfied, because what this letter did not do was to backdate his pension rights in relation to the collapsed right lung to 1962, when he was discharged from service. This was a matter which he had been pursuing for some time. It is plain from looking at the letter that there was no decision taken in that regard at all. However, Mr Burrows took up the backdating issue and received a reply from the Veterans’ Agency on 5 October 2006, as follows:
“As you point out in your letter, the issue of backdating your war pension has been considered and discussed many times. I am sorry but I am unable to offer any additional explanation regarding this. I am enclosing copies of two previous letters pertaining to an MP and the Ombudsman that fully explain the consideration given to this matter and the outcome. Our latest decision to you on 17.02.05 that notified your true assessment of 40% and an advisory of 60% did carry a right of appeal against the commencing date of award. There is a six month time limit in order to appeal against this decision, however you could submit a late appeal application. If you wish to make a later appeal application please let me know and I will issue the appropriate forms to you.”
Mr Burrows did wish to appeal, and the late appeal forms were duly sent to him by letter of 12 October 2006. That form notes that the time limit for the appeal ran out on 17 August 2005. Mr Burrows noted in the box that deals with reasons for lateness of appeals the following:
“In the first instance ignorance is the minor reason. My partner of 25 years has been seriously ill she required 24 hour care for the last three years, she has very sadly passed away. Whilst trying to come to terms with my loss I was diagnosed with cancer, which the treatment for still continues.”
[6]The matter then came before the Pensions Appeal Tribunal, as I indicated, on 23 March 2007. The tribunal treated the date of the appeal as being 17 October 2006 and there is no dispute in that regard. Its decision says that the appeal is against a “purported” decision of the Secretary of State dated 17 February 2005. It says that Mr Burrows wishes to appeal against the commencement date of his award for his right lung condition. It is clear from the form that the tribunal took the view that the time limits were not to be applied because the decision form specifically deals with time limits and the relevant paragraphs are crossed out. The reasons for decision state as follows:
“The decision of 17/02/05 does not deal with the commencing date of Mr Burrows’ award. In the scanty information before the Tribunal it is impossible to identify a ‘decision’ regarding this issue.”
Pausing there, the tribunal was correct. There was no decision about the commencing date of an award. The letter of 17 February 2005, as I have said, is not concerned with that issue at all. However, the tribunal goes on as follows:
“It is in the interests of justice for the appellant to be allowed to bring his case regarding backdating to an appeal tribunal. This appeal should be listed for hearing together with the assessment appeal which was allowed to proceed out of time by a tribunal in December 2006.”
This is a reference to the interim assessment in relation to anxiety disorder, which was the subject of the other letter of 17 February 2005.[7]Now, with that rather lengthy factual introduction, I can deal relatively shortly with the time limits as they apply to a war pension appeal of this kind. But before I do it may be convenient to point out that there are a number of different types of decision that an appeal lies against, and the time limits may not necessarily be the same in each. An entitlement decision determines whether or not the injury in question is attributable to, or aggravated by, war service. Then there is an assessment decision which determines the degree of disablement. In the present case, as I have indicated, the degree of disablement has been fixed at 60%. Then it will be necessary to determine the date from which the pension is payable; this is called a commencement date decision, and is the relevant class of decision for present purposes. Appeals in relation to commencement date decisions have been available since 2001 and there are time limits within which such appeals must be brought. In that respect the governing provision is Section 5A of the Pensions Appeal Tribunal Act 1943, which provides that, where the Minister makes a specified decision (of which a commencement date decision is one), he has to notify the claimant of it, specifying the ground upon which it is made, and thereupon an appeal against the decision shall lie to the tribunal on the issue whether the decision was rightly made. Thus, as Mr Morton points out, the starting point is that the Secretary of State has to notify the claimant of the commencement date decision and the ground upon which it was made.[8]Section 8 is the section that provides a time limit for appeals. In the form in which it was, at the time that the Pensions Appeal Tribunal reached its decision on 23 March 2007, this section read as follows:
“(1) No appeal shall be brought [to the Tribunal] under any provision of this Act […] unless notice of that appeal is given, in such a manner as may be prescribed by rules made under the Schedule to this Act, not later than [six months from] the date on which the decision for assessment is notified to the claimant.”
Thus a claimant has six months, beginning with the date of notification, in which to bring an appeal. However, Section 8(5) of the Act envisages an extension in certain circumstances. It provides that:
“The Minister may by regulations … provide that the Tribunal […] can allow an appeal to be brought not later than twelve months after the end of any period limited by this section.”
The period limited by the Section is, of course, six months, and therefore there is potentially by statute an eighteen month period of appeal.[9]Regulations have indeed been made in the form of the Pensions Appeal Tribunals (Late Appeals) Regulations 2001. Regulation 3 empowers the Pensions Appeal Tribunal to allow appeals to be brought up to twelve months after expiry of the primary time limit in the following terms:
“The tribunal may, in the circumstances prescribed of regulation 4, allow an appeal to be brought not later than twelve months after the expiry of the time limit.”
[10]The power arises when conditions laid down in Regulation 4 are fulfilled. Regulation 4 is quite specific. The extended twelve-month time limit applies in circumstances where a) the main cause of non-compliance with the time limit was 1) the death or serious illness of the claimant or a spouse or dependant of the claimant; 2) the disruption of normal postal services; 3) failure on the part of the Secretary of State to notify the claimant of the decision; or 4) exceptional circumstances applying to the claimant which rendered it impractical for the claimant to bring the appeal or to instruct another person to bring it; and the appeal was in any event brought as soon as was reasonably practicable in the circumstances of the case.[11]Against that background, one goes back to consider what the Pensions Appeal Tribunal did in the present case. The first point that is made by Mr Morton for the claimant is that there was in fact no commencement date notified in the decision of 17 February 2005 and therefore no decision from which there could be an appeal. As I have said, that indeed appears to have been the view of the tribunal itself; therefore it is a little difficult, with respect, to see upon what basis it proceeded to allow an appeal to go forward at all. However, I leave that entirely on one side. On the assumption that the letter of 17 February 2005 did indeed contain a commencement date decision, then that decision was subject to the statutory time limits that I have mentioned. In other words, Mr Burrows had six months from the date on which the decision was notified to him to appeal, subject to a possible further twelve-month extension in the prescribed circumstances that I have identified.[12]In this particular case, it follows that the primary six-month period expired on 17 August 2005, and any further secondary twelve-month extension would have expired twelve months after that, in other words on 17 August 2006. There might have been, in some circumstances, an issue as to whether the date of the letter was the date of notification, but that does not arise here because, as I have said, the appeal was well outside the eighteen month limit, on the basis (as the tribunal) found that the appeal was brought on 17 October 2006.[13]The operation of statutory time limits in cases of this kind has been the subject of what I would regard as authoritative guidance in the case of Secretary of State for Defence v Pensions Appeal Tribunal [2007] EWHC 1177 [Admin], a decision of Stanley Burnton J. In this case the judge provides a clear exposition of the statutory provisions and how they apply in the context of time limits. The judge says in paragraph 54 as follows:
“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.”
[14]This decision reflects the fact that the Pensions Appeal Tribunal is a creature of statute, in this case the 1943 statute. Unlike the High Court, for example, it has no inherent jurisdiction; its power to entertain cases is therefore circumscribed by the rules as to time limits and those rules must be observed. In this case it is plain that the appeal fell outside the primary time limit of six months, that it also fell outside the secondary time limit of a further twelve months, and in those circumstances the proper course for the Pensions Appeal Tribunal would have been not to allow the appeal to be brought.[15]There is a further matter to deal with upon the facts of this case. I have already indicated that on 5 October 2006 the Veterans’ Agency informed Mr Burrows that he did in fact have a right of appeal, and indeed shortly afterwards the appropriate forms were sent to him and shortly after that he appealed. As Mr Morton has put it to me, upon further consideration the Secretary of State now takes the view that the view set out in the letter of 5 October 2006 was an error. Indeed, his entire submissions have been premised on the basis that it was an error and, as I have held, it is indeed wrong. I think it is perhaps worth saying that no criticism is intended in those words. I do not doubt that the Veterans’ Agency seeks to give the benefit of the doubt on any occasion which it appropriately can to those within its field of responsibility; one is, after all, talking of men and women who have suffered disability in the service of their country.[16]Doubtless with those thoughts in mind, on 3 July 2007 the Agency wrote a further letter to Mr Burrows saying as follows:
“We wrote to you on 17 February 2005 informing you of the outcome of your claim for Anxiety Disorder and our review of the assessment for [noise-induced hearing loss]. Our letters omitted to inform you of the commencement dates for those decisions […] This letter is to inform you that (1) The commencement date for your claim for Anxiety Disorder is 27 October 1993. This is because that was the first date of your claim for Anxiety Disorder. (2) The commencement date of our review of your assessment for [noise-induced hearing loss] is 9 April 2002.”
It then went on to say:
“A fresh right of appeal lies against the commencement date notified in this letter. Should you wish to appeal the commencement date decisions notified in this letter you should read the enclosed leaflet and contact Service Personnel and Veterans Agency at the above address. You should be aware that there are time limits for bringing an appeal. The time limit to appeal this decision will expire on 3 January 2008.”
In other words, this letter does now clearly set a commencement date in relation to noise-induced hearing loss, which was the subject of the letter of 17 February 2005. It gives a fresh right of appeal and, taking the eighteen month period, basically that right of appeal will expire on 3 January 2008. It is plainly not an entirely satisfactory situation. Nevertheless, efforts have been made to put right the plain misunderstanding that the letter of 5 October 2006 must have given rise to. It would be wrong for Mr Burrows to be prejudiced by that letter, though, as it happens, by 5 October 2006 the right of appeal had gone in any event. However, so far as the letter of 17 February 2005 is concerned, it has now been crystallised to his advantage in the way that I have indicated.

This letter is to inform you that

[17]It follows, however, that the decision of the Pensions Appeal Tribunal of 23 March 2007 must be quashed.

Order

Appeal allowed