Rogerson, R (On the Application Of) v Secretary of State for Defence [2012] EWHC 2131 (Admin)

Case No CO/5069/2011[2012] EWHC 2131 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Sitting at:
Venue Manchester Civil Justice Centre
1 Bridge Street West
Venue ManchesterDate Friday 29 th June 2012
M60 9DJ
Before
HIS HONOUR JUDGE STEPHEN DAVIESSITTING AS A HIGH COURT JUDGE
Between
THE QUEENClaimant(on the application of KEVIN Rogerson)Secretary of State for  DefenceDefendant
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424Official Shorthand Writers to the Court)
Mr Philip Engelman (instructed by Ben Hoare Bell) appeared for Claimant.Mr Denis Edwards (instructed by the Treasury Solicitor) appeared for Defendant.
Judgment

HHJ Stephen Davies:

[1]In this case the claimant, Mr Kevin Rogerson, challenges the refusal by the defendant, the Secretary of State for Defence, communicated in a decision in August 2010 and confirmed in March 2011, to conduct a review of a decision by the Pensions Appeal Tribunal made in November 2004 concerning the claimant’s claim for additional war disablement pension. Mr Rogerson had claimed before the Pensions Appeal Tribunal that a condition from which he was then suffering, a prolapsed disc in his cervical spine, was caused by a whiplash injury to his cervical spine which he had suffered in a road traffic accident whilst serving with the reserved forces in 1987. That claim had been rejected by the Pensions Appeal Tribunal.[2]The basis for his request for a review was that subsequently, in 2006, the agency responsible for administering a separate benefit scheme for the reserved forces had awarded him a reserved forces attributable pension, also known as an armed forces pension and to which I shall refer in this judgment as a “reserved forces pension”, by reason of the fact that the medical adviser dealing with that claim had accepted that an operation which had been carried out to his neck to relieve the symptoms of the prolapsed disc was a direct consequence of the earlier whiplash injury. In short the claimant contended and contends before me today that the decision in relation to the reserved forces pension and the medical evidence underpinning that decision were both plainly inconsistent with the earlier decision of the Pensions Appeal Tribunal, and that the earlier decision should therefore be reviewed.[3]It is common ground that under the relevant statutory scheme the threshold condition for there to be a review of a tribunal decision in such a case is that there has been a relevant change of circumstances since the decision in question. The stance taken by the Secretary of State is that the subsequent decision in relation to the reserved forces pension does not amount to a relevant change of circumstances.[4]Permission to bring this claim was refused on paper by Langstaff J on the basis that he accepted the defendant’s stance as being plainly correct and that the contrary was simply unarguable. That decision was upheld by HHJ Belcher on oral renewal after a lengthy hearing on the same basis, and on the further basis that the claimant had no real prospect of showing that the defendant's decision to treat the subsequent decision in respect of reserved forces pension as wrongly decided could not be impugned on public law grounds. However, Arden LJ subsequently granted permission to the claimant to bring this claim on an appeal to the Court of Appeal, and it is in those circumstances that the case has come on before me for a substantive hearing.[5]The claimant has been represented before me today by Mr Engelman of counsel and the defendant by Mr Edwards of counsel, both of whom also appeared before HHJ Belcher. Both have lodged written skeleton arguments and have made extensive oral submissions to me today, for which I am grateful.[6]There are five grounds of challenge to the defendant's decision. The first, the most substantial in my view, is that the decision of the agency in respect of the reserved forces pension and the medical evidence underpinning that decision amount, individually or cumulatively, to a relevant change of circumstances and that the defendant's decision to the contrary is plainly wrong. The second is that since there is, putting it at its lowest, a reasonable doubt on the question, then under the relevant scheme rules the requirement of a relevant change of circumstances should be treated as having been fulfilled. The third is that the defendant was not entitled to depart from the decision in relation to the reserved forces pension either at all or at least in the absence of a reasoned decision to explain why he was so doing. The fourth is it would be unfair to allow the defendant to depart from that decision. The fifth is that the defendant was not entitled to make a factual finding that there had been an X-ray taken of the claimant's cervical spine in 1989 which showed no abnormality.

The relevant schemes

[7]The starting point is to refer to the relevant statutory schemes. Entitlement to war disablement pension is governed by the provisions of the Naval, Military and Air Forces Etc (Disablement and Death) Service Pensions Order 2006 (“the 2006 order”). The general conditions of entitlement are to be found in Articles 5 and 6 of the 2006 order. Article 6 provides for a member of the armed forces who is disabled due to service before 6 April 2005 to be awarded pension.[8]The relevant part of the 2006 order for present purposes is Part V, entitled Adjudication. As is permitted by Article 39 the administration of the scheme has been delegated by the Secretary of State to a governmental agency which is now known as the Service Personnel and Veterans Agency, previously known simply as the Veterans Agency. War disablement pensions are administered by the Veterans Agency from offices in Norcross, Lancashire, which is why one sees reference in the documents to “SPVA (N)”. Reserved forces pensions are administered by the Veterans Agency from offices in Glasgow, which is why one sees reference in the documents to “SPVA (G)”.[9]The general basis for entitlement is that where a claim is made for war disablement pension it should be accepted as being due to service in the armed forces so long as it is certified that it is due to an injury attributable to service. The process of certification is provided for by Article 43, which makes provision for medical questions to be determined by medical officers and for appeals to be determined by the Pensions Appeal Tribunal.[10]There is a distinction drawn in the 2006 order between claims made within seven years from termination of service and claims made outside that period. The difference is that in the first category there is no onus on the claimant to prove the fulfilment of the conditions to entitlement and the benefit of any reasonable doubt is to be given to the claimant, whereas in the second category with which this case is concerned, Article 41(5) provides that:
"Where, upon reliable evidence, a reasonable doubt exists whether the conditions set out in paragraph (1) are fulfilled, the benefit of that reasonable doubt shall be given to the claimant."
The effect of this provision is that the onus in such a case lies upon the claimant to provide reliable evidence. If he does so, and there is a reasonable doubt, then he still receives the benefit of the doubt.[11]At the heart of this case is Article 44, which makes provision for the circumstances in which decisions may be subjected to review. The general position, as provided for by sub-paragraph 44(1), is that the Secretary of State may review any decision at any time on any ground, but that general position is restricted in cases where the decision sought to be reviewed is that of the Pensions Appeal Tribunal. As relevant to this case sub-paragraph 44(3) provides that any assessment or decision made, given or upheld by the Pensions Appeal Tribunal may be reviewed by the Secretary of State at any time if he is satisfied that there has been a relevant change of circumstances since the assessment or decision was made, including any improvement or deterioration in the disablement in respect of which the assessment was made. By Article 44(6), if the Secretary of State determines that there should be a review, then on such a review the Secretary of State is empowered to maintain or continue, vary or cancel the decision or assessment, although by Article 44(4) he can only do so to the detriment of the claimant if certain further conditions are satisfied.[12]It follows, therefore, that there is a two-stage process. Where any question of review of a Pensions Appeal Tribunal decision arises, the first stage which is a pre-condition to conducting a review is that the Secretary of State must be satisfied that there has been a relevant change of circumstances. As the claimant accepts, in so doing the Secretary of State is undertaking a public law function. The second stage is that, if he is so satisfied, a review takes place and a decision will be issued.[13]That then is the procedure in relation to war disablement pension. So far as the reserved forces pension is concerned, that is a separate scheme applicable only to members of the reserved forces, which is governed by the Reserved Forces (Attributable Benefits) Regulations 2001. Paragraph 3 of those regulations provides for a pension to be awarded if six specified conditions are satisfied. I need only observe that the fifth of those conditions requires that an assessment has been carried out under which the degree of disablement due to the injury or condition has been assessed as being 20 per cent or more.[14]I have been referred to a summary of the two pension schemes, provided in a booklet promulgated by the Secretary of State for Defence, which both parties accept is an accurate summary of the two schemes. It can be seen from that summary and from my own perusal of the 2006 order and the 2001 regulations that although the schemes are broadly similar they are not the same. There are different conditions of entitlement and a different standards of proof; thus the note on page 28 of the booklet states, accurately in my judgment, that since the reserved forces pension scheme has a different standard of proof from the war disablement pension scheme, in some instances this could lead to a war disablement pension being paid where a reserved forces pension would not be payable.

The relevant facts

[15]Having referred to the scheme, I now turn to the relevant facts. I should say at this stage that there is some difficulty in reaching clear conclusions as to what may have happened at certain stages in this case, both because some events happened some time ago but also – and regrettably - because the defendant appears to have lost or misplaced a number of potentially relevant documents. It should also be said however that some at least of those documents must also at least at some stage have been in the hands of the claimant, who has been at various stages in this case been represented by solicitors, who has also been unable to produce these documents.[16]The background facts are not in dispute. Between 1977 and 1982 the claimant served in the Royal Navy and between 1986 and 1989 he served as a reservist in the Territorial Army. In October 1987 he was involved in a road traffic accident whilst on active service in Germany, in the course of which he suffered a whiplash type cervical spine injury.[17]In May 1989 his general practitioner referred him to hospital for further investigation, and I have seen the referral letter to that effect. I have also been referred in the course of this hearing to a number of documents dating from 1989, which are relevant to a factual issue between the parties, which is whether or not the claimant underwent an X-ray examination of his spine in 1989. There are a number of items of documentary evidence which strongly suggest that he did. In particular there is a record dating from May 1989, apparently evidencing a review of an X-ray taken at that time, although the Secretary of State has been unable to produce the X ray itself. Secondly, there is a note written by a Dr Robson to the general practitioner in September 1989 following his referral, which makes reference to the claimant's spine having been X-rayed and found normal. However, the claimant observes that there are some discrepancies in relation to dates in May 1989, and there is also a letter which confirms, although it is undated, that the claimant failed to attend an appointment for an X-ray. The claimant himself has produced a witness statement for these proceedings, disputing that his spine was X-rayed in 1989, and suggesting that the explanation must be that what Dr Robson was referring to was an earlier X-ray in 1983. Whilst I shall refer to this point subsequently, for present purposes I simply observe that there is a real issue about it.[18]What is not in issue is that in March 1993 the claimant made a claim for war disablement pension on the basis of the whiplash injury to his neck suffered in the road traffic accident. It appears that the Veterans Agency accepted that he had suffered a whiplash injury attributable to his service, but assessed his disablement as nil. Mr Rogerson appealed that decision and the appeal was compromised, it appears in April 1994 or thereabouts, on the basis that it was accepted that the claimant suffered from three matters attributable to his service, namely a whiplash injury to his neck, arthralgia to his right wrist and low back pain syndrome. Collectively a 30% disablement was assessed, and he was paid pension by reference to that assessment.[19]In April 2001 the claimant presented to the orthopaedic surgeon at his local hospital in Newcastle complaining of a worsening of pain in his neck and tingling in both hands. I take the subsequent medical history from the detailed report of Dr Mitchell, an honorary consultant neurosurgeon, dated 6 August 2004 and produced on the instructions of the claimant's then solicitors. It is clear that subsequent investigations, including MRI scans, revealed that he was suffering from two disc protrusions in his cervical spine and that in June 2002 he underwent an operation described as a cervical discectomy in order to deal with those problems, but that unfortunately there was no improvement and there was an indication of impingement upon and injury to his spinal cord as a result of those disc prolapses.[20]When the claimant was seen by Dr Mitchell, who was responsible for his care from 2003 onwards, he referred to the claimant suffering from a range of continuing symptoms leading to what he described as a moderate degree of disability. On the issue of causation he suggested that the 1987 road accident may have been a relevant causative factor in the development of the cervical disc prolapses, but that the timing of the progressive symptoms suggested that there was a substantial degenerative component as well. He estimated that there was around a 50% contribution of each mechanism to the damage to the spinal cord, but he went on to confirm that although the MRI scans did demonstrate damage to the spinal cord, it was more difficult to ascertain the relationship between that injury and the symptoms of which the claimant was complaining. Fortunately, I do not need to deal with that particular part of his opinion for the purposes of this case.[21]At some time in or around 2003 the claimant sought a reassessment of his disability for the purposes of obtaining an enhanced war disablement pension. That was refused and he appealed to the Pensions Appeal Tribunal which, as I have said, dismissed his appeal in November 2004. In addition to the decision itself I have been provided with the handwritten report made by the departmental representative who presented the case before the Appeals Tribunal, from which it is apparent that the claimant gave evidence and maintained that:(i) he had suffered continuing pain to his neck, arms and shoulders since the road traffic accident in 1987;(ii) the cervical disc prolapse had been missed over the intervening period;(iii) the medical advisers appeared to have been looking at the wrong things and not taking any notice of his neck problem. This was in the context of it having been put to him that several of the entries in the medical information which was before the tribunal reported the neck to be normal. The claimant was recorded as having denied this and, when questioned about the accuracy of the reports, he reportedly asserted that his GP notes were incorrect.[22]It is not entirely clear from the report whether or not the evidence relating to the 1989 disputed X-ray was specifically placed before the Pensions Appeal Tribunal. It appears likely that it was since they clearly had the medical notes before them, but there is no positive evidence that it was. What, however, is clear is that the report of Dr Mitchell to which I have made reference was before the tribunal, and the claimant's then solicitor made submissions in relation to that report in support of the claimant's case. Having listened to the evidence and considered the submissions, the tribunal rejected the claim and the claimant, it appears on advice from his then lawyers, did not pursue an appeal against that decision as he would have been entitled to do.[23]Instead he turned his attention to making a claim under the reserved forces pension scheme. In order to do that, he made an application to be retrospectively treated as having been medically discharged from the Territorial Army and it appears that he was granted retrospective medical discharge in May 2006 and that in December 2006 he was given a reserved forces pension, which was backdated to January 1989.[24]It is not entirely clear whether or not the claimant underwent any medical examination by a medical adviser in the course of that process. It is possible that he did, although there is no record of it, or it is possible that the medical adviser simply assessed the case on the basis of the documentary evidence. There is, as I have said, no evidence either way produced by the defendant, nor has the claimant assisted either by producing documentary evidence which he may have retained or providing a witness statement confirming, one way or another, what happened. But what is clear is that in January 2009 the claimant made a request for information of the Veterans Agency as to what conditions had been taken into account in awarding him a reserved forces pension. I have before me a letter in response dated 20 February 2009 where the writer confirms that the case had been referred to the medical adviser who has advised that the neck operation was a direct consequence of the principal invaliding condition, namely a whiplash injury to the neck. He also confirmed that additional conditions for which attributable benefits had been awarded included pain to the right wrist and low back pain, although they were not regarded as being consequential on the principal invaliding condition.[25]The claimant places reliance on that letter as evidencing, as it clearly does in my judgment, that in February 2009 the medical adviser requested to consider the matter by the Veterans Agency did reach and communicate a clear opinion that there was a direct consequential connection between the whiplash injury to the neck and the subsequent difficulties with the cervical spine, namely the disc prolapse leading to the neck operation. However, in the same way as in relation to whatever happened in 2006 there is no evidence, documentary or otherwise, as to the thinking or reasoning process of the medical adviser, so that one simply does not know what was before him or what he took into account when reaching that decision. What is clear that this information led the claimant to query whether or not in those circumstances the decision of the Pensions Appeal Tribunal should be reviewed.[26]It is clear that this was the subject of some internal discussion within the Veterans Agency, in respect of which the defendant has disclosed documentation. In particular, the claimant relies upon an internal background note in which the writer, who is unidentified, considered the question as to whether or not that amounted to a relevant change of circumstances. The writer wrote, correctly in my judgment, “I have no doubt that it is for the Secretary of State to determine what constitutes a relevant change of circumstances”, but went on to express his opinion that he thought it likely that a tribunal would view the comments from the medical adviser to the Glasgow Veterans Agency about the neck operation being a consequence of the whiplash injury to the neck as a relevant change in circumstances. But he went on to express his opinion that, on review, they could probably still defend the rejection of the prolapsed cervical inter-vertebral disc, that being a reference to the decision of the Pensions Appeal Tribunal, although they would need to seek medical opinion on this point.[27]Although the claimant invites me to place weight on this expression of opinion, it is clear that this was an internal document written for internal purposes and there is no suggestion that either the note or its substance was communicated to the claimant. Therefore I do not place any particular weight on that note.[28]Subsequently the issue was referred to a medical adviser within the Norcross Veterans Agency and the opinion of that adviser was that: "In this case the [Glasgow Veterans Agency] decision has been made in error. The evidence that this erroneous decision was made on was before the War Pensions Tribunal. All the evidence was available before the Tribunal. There has been no new evidence and there has not been a change of circumstances. My advice is that there are no grounds for review.”[29]That resulted in a letter dated 13 August 2010 being sent to the claimant saying:
"No new evidence has been submitted since [the date of the Pensions Appeal Tribunal] that would provide grounds for us to review the tribunal decision. In the absence of evidence of a relevant change of circumstances no further action can be taken. Should any new evidence relating to your prolapsed cervical intervertebral disc be submitted we will of course consider if it constitutes a relevant change of circumstances since the tribunal decision."
[30]There was then an exchange of correspondence between the solicitors then instructed by the claimant and the defendant, resulting finally in March 2011 when the defendant restated his decision that he was not prepared to agree to a review. The view expressed was that the evidence showed that an X-ray had been taken in 1989 and that the defendant considered that the decision of the Glasgow Veterans Agency had been made in error. Precisely what was written in that regard was this:
"With regard to the retrospective invaliding Mr Rogerson was able to persuade an examining doctor who did not have the benefit or sight of all the medical evidence. Had this doctor had all the evidence before him it is very questionable indeed that he would have come to the same conclusion. The Secretary of State is satisfied that the armed forces pension decision was made in error. It has already been explained that armed forces pensions and the war disablement pensions are not awarded on the same criteria."
[31]I should observe that, given the absence of any evidence in front of me at least as to what evidence the examining doctor was provided with, it does not seem to me that the point made in that paragraph, namely that that doctor did not have the benefit or sight of all the medical evidence, has been substantiated.

Ground 1

[32]That concludes my review of the factual circumstances, and I must now turn to the arguments. So far as ground 1 is concerned, which as I say is the principal ground in this case, three relevant changes in circumstances are relied upon: firstly the decision by the Glasgow Veterans Agency itself to grant reserved forces pension; secondly the opinion of the medical assessor to the effect referred to in the letter of 2009 to which I have referred, namely the connection between the whiplash injury and the subsequent neck operation problems; and thirdly the evidence that the claimant submits must have emerged from the examination which he submits must have been carried out by the medical adviser in order for that opinion to be produced.[33]So far as the law is concerned, I have been referred to a number of relevant authorities and arguments.

(b) of the Social Security Act 1985 said:

"The words ‘relevant change of circumstances’ are very wide words."
[34]Although that is a view expressed by reference to words appearing in a different statute, nonetheless that is in my view a statement of general application which, with respect, appears to me to be obviously correct.[35]Building on that foundation Mr Engleman has reminded me that in the case of Article 44(3) the words “relevant change of circumstances”are stated specifically to include any improvement or deterioration in the disablement in respect of which the assessment was made. He makes the point, which again seems to me to be obviously right, that those words show that relevant changes of circumstances are not limited to subsequent improvement or deterioration.[36]I have also been referred to the decision of the Northern Ireland Court of Appeal in Minister of Pensions v Greer [1958] NI 156, which concerned words similar if not identical to those currently appearing in Article 41 of the 2006 order. In that case Black LJ referred in his judgment to evidence which had been before the tribunal from a medic of his opinion as to the proper interpretation of a series of X-ray plates. Black LJ stated that he was satisfied that the tribunal was right to regard that as evidence upon which they were entitled to rely and to proceed. Mr Engleman submits to me, therefore, that if medical opinion can amount to relevant evidence, then it can also amount to a relevant change of circumstances, and I agree.[37]Mr Edwards has referred me to a decision of the Court of Appeal, Cooke v Secretary of State for Social Security [2001] EWCA Civ 734, which was concerned with s.30(2) of the Social Security Administration Act 1992, under which an adjudication officer was given jurisdiction to review a case in certain defined circumstances, one of which (sub-subsection (b)) was where there has been any relevant change of circumstances since the original decision was given. Hale LJ, as she then was, gave the principal judgment. She noted in paragraph 8 that it was common ground between the parties that it was well established in social security law that the threshold to establish the jurisdiction to review was a low one. I pause there to record that it was common ground before me that this principle applies as much in this case as it did to that.[38]However Mr Edwards drew my attention to a point which was also common ground in that case, which was that it was not enough to demonstrate a change in circumstances that a later doctor had formed a different opinion from one formed earlier. He referred me to paragraph 9 of the judgment where Hale LJ stated that that this was established in a decision of Lightman J in the case of R v Social Security Commission ex parte Chamberlain [2000] TLR 586, approving the approach taken by Social Security Commissioner Mesher in an earlier case, where he had referred to the "well-established principle that the existence of a medical opinion which differs from some previous opinion does not in itself constitute a relevant change of circumstances”. I should record that Mr Engleman did not dispute this, but emphasised the words "in itself".[39]Social Security Commissioner Mesher went on to observe that the existence of a subsequent medical report did not of itself amount to a relevant change of circumstances. That would be to confuse the outcome of a review with the establishment of grounds for carrying out a review. By that I understand he meant that there are two separate questions to be considered at two separate stages. The first is whether or not what was in the report amounted to a relevant change of circumstances. The second is whether or not, if there is a review, the opinions expressed in that subsequent report might be preferred by the subsequent decision-maker to those expressed in the earlier one.[40]Finally he went on to say, a point which Mr Engleman emphasised:
"The principle comes into play that the expression of a new medical opinion is not in itself a relevant change of circumstances but may be evidence of an actual change of circumstances."
[41]Mr Edwards submitted, in my judgment rightly, that this is a statement of general principle which applies as much to this case as to the social security legislation. It is also the acse, of course, that the actual decision in any particular case will be fact-sensitive.[42]With these legal principles in mind I consider each of the three matters relied upon by the claimant. First, the decision itself. I am satisfied that this cannot be viewed as a relevant change in circumstances. It is clearly a decision made by a different body, namely the Veterans Agency in Glasgow as opposed to the Pensions Appeal Tribunal, in relation to a different claim made under a different scheme. I accept, of course, that the matters which were being considered by both decision-makers were, if not precisely the same, substantially similar, namely the question of the connection between the original whiplash injury and the subsequent damage to the cervical spine, but it does not seem to me that the fact that there was a subsequent different, even if inconsistent, decision by a subsequent decision maker can of itself amount to a change in relevant circumstances. A decision is no more than a conclusion reached by a decision maker by reference to the relevant statutory or other framework and the facts as found by him on the basis of the information put before him. Indeed I accept Mr Edwards’ submission that it would be unsatisfactory in general terms if a decision in itself could be regarded as a relevant change in circumstances. It must be borne in mind, as he submits, that where there is a review the decision might be adverse to the claimant as well as being favourable to him. As he submits, what if the Glasgow Veterans Agency had reached decision which was more unfavourable to the claimant that the Pensions Appeal Tribunal? Would the defendant have been justified in invoking that as a reason to revisit the assessment for war disablement pension? I very much doubt that such an argument would even have occurred to the defendant, let alone have had any prospect of being accepted by any tribunal or court. I am quite satisfied that it is not in itself a relevant change in circumstances.[43]What then about the opinion of the medical adviser? Having regard to the guidance given in Cooke I am satisfied that this cannot be a relevant change in circumstances. It is quite clear in my judgment that the mere expression of a different opinion by a medical man cannot in itself amount to a relevant change in circumstances. There has in my judgment to be something which justifies the change in the opinion which in itself amounts to a relevant change in circumstances. For example one can well understand, to go back to the example given in the Greer case, that if in this case a doctor had subsequently located an X-ray which had not previously been considered and had, on inspecting that X-ray, reached an opinion about what was revealed by that X-ray which led him to reach an opinion different to that previously reached and more favourable to the claimant's case, that could amount to new material capable of amounting to a relevant change in circumstances. But there is absolutely no evidence in this case that there was anything before the medical officer in Glasgow which was not before the Pensions Appeal Tribunal. There is no evidence that there was anything before him which amounted to new evidence, and in saying that I bear in mind the claimant's complaint that the defendant has failed to provide all relevant information. The reality I am satisfied is that the claimant must known if anything new was provided to the medical officer in 2006 and 2009, and he has not suggested that there was. Nor is there any indication in any of the documentation before me that any new material was provided.[44]The third category is some new material arising from a medical examination in 2006 or 2009. I am prepared to accept that it is possible that there was a further examination at some point in this process, but again I am satisfied that there is absolutely no evidence that any new evidence was obtained as a result of any such further examination. Again, there has been no identification of any new evidence or new material which explains the decision reached by the medical officer in Glasgow. Furthermore, standing back, it is difficult to see how there could have been. What any examining doctor would have been concerned with in 2006 and 2009 was essentially a historic question, namely the connection between a whiplash injury in 1987 and disc prolapses which occurred in or around 2001, leading to an operation in 2002. On the face of it, it is difficult to see what new material could have been obtained from an examination in 2006 and 2009 especially in the context of the earlier substantial medical treatment and history and the careful and comprehensive report from Dr Mitchell. It appears at least as likely to me, if not far more likely, that what happened was that the assessing officer in Glasgow had regard to the Mitchell report and derived a conclusion from it which was different to the conclusions drawn by the Pensions Appeal Tribunal who, of course, in addition to the Mitchell report had the benefit of hearing from the claimants and looking at the detailed medical evidence.[45]In conclusion, whilst I accept the words have a very wide meaning, and whilst I also accept that there is a low threshold requirement, nonetheless I am quite satisfied that nothing new has emerged as a result of the process whereby the claimant successfully applied for a reserved forces pension which amounts to a relevant change in circumstances.[46]I should also observe that in dealing with the matter in this way I have, if anything, applied an overly generous approach to the claimant. That is because if, as is common ground, the Secretary of State was acting under a public law duty when considering whether or not he was satisfied as to a relevant change in circumstances, it would be necessary for the claimant to go further and establish that the decision which the Secretary of State reached the subject of this challenge was susceptible to challenge on public law grounds, such as irrationality or Wednesbury unreasonableness, but nothing other than the allegation that the defendant was simply plainly wrong to reach the decision which he did has been identified.[47]At this stage I have not considered specifically the separate argument as to whether or not Article 41(5) is relevant to this point. My own view is that the Article 41(5) reasonable doubt proviso cannot apply when one is considering the question of a review and the question of a relevant change in circumstances under Article 44(3). That is not least because, so far as I can see, Article 41(5) applies as much to claims under Article 40 as well as to the process of review under Article 44, so that it seems to me that the question of proof and reasonable doubt and reliable evidence only come into play where a review has been ordered and a fresh decision is being made. But, even if I am wrong on that, it does not seem to me that the claimant can derive any benefit from Article 41(5) and the issue of reliable evidence or reasonable doubt. It does not seem to me that the claimant has identified any reliable evidence from which he can demonstrate that there is a reasonable doubt as to whether or not there has been a relevant change of circumstances.

Ground 2

[48]Ground 2, as I have said, relates to Article 41(5) and, for reasons which I have just given, it does not seem to me that this can assist the claimant in any way, even if I am wrong about the application of Article 41(5) to the decision whether or not to hold a review under Article 44(3). I am not concerned at this stage with the rightness or otherwise of the decision which was made in 2006 and/or 2009 in relation to the reserved forces pension, nor am I being asked to nor could I properly make a decision as to whether or not, if there was a review, the entitlement for a changed pension would be made out having regard to the Article 41(5) burden and standard of proof.

Grounds 3 and 4

[49]I turn to grounds 3 and 4, which are inter-connected at least to some extent. It is said, as I have already identified, that it is unfair of the defendant not to follow the decision of the Veterans Agency in Glasgow in relation to the reserved forces pension, but I do not myself consider that this is so. The position, as I have already said and accepted, is that these are different decisions made by different decision-makers in relation to different statutory schemes. There was never, it is clear, any indication or promise engendering any legitimate expectation on the part of the claimant that the agency responsible for administering the war disablement pension would follow any decision made in relation to the reserved forces pension. Nor is there any obvious or compelling reason why they should do so. In my judgment the Secretary of State was perfectly free not to do so.[50]It also does not seem to me, so far as ground 3 is concerned, that there can be any question of the Secretary of State being obliged either to choose between those decisions or to give reasons why he has chosen to prefer the earlier decision of the Pensions Appeal Tribunal. Again, for the reasons I have stated, it seems to me there is no obligation to choose between the two, since they are separate decisions reached in respect of separate schemes. I consider that the defendant has caused himself unnecessary difficulty by referring in the subsequent decision letter of March 2011 to the second decision as having been erroneous. It does not seem to me that it is necessary for the Secretary of State to establish that proposition. What the Secretary of State did in the first substantive decision letter was simply to state that there was no new evidence and no relevant change in circumstances and if he was, as I have held he is, right about that then that was really the end of the matter. If, contrary to the view I have taken, I was satisfied that the Glasgow process, to use that shorthand, did amount to a relevant change in circumstances then I would not have been prepared to accept that the Secretary of State would have been entitled at that point to say in effect:
“I do not accept the Glasgow decision. I regard it as wrong. Therefore I am not satisfied that there are grounds to review.”
That in my judgment would be to confuse the initial decision whether or not to review with the substantive question as to whether or not to make a fresh decision. If that had been the issue then I would have been against the defendant, but that is not the position in my judgment.[51]For the same reasons, I do not consider that it was necessary for the defendant to give any, let alone adequate, reasons for preferring the earlier decision. It is simply an irrelevant consideration on the view I have taken of the case.

Ground 5

[52]Finally I can deal briefly with ground 5, the 1989 X-ray argument. I simply do not accept, as Mr Engelman submitted, that the existence or otherwise of this X-ray is an issue of antecedent fact which goes to jurisdiction. It is simply one part of the factual matrix. It appears likely that it was before the Pensions Appeal Tribunal, although that has not been conclusively shown. It may also have been considered by the Glasgow medical adviser -- I know not. It does not seem to me that this is a case where it can be said that the Secretary of State was acting in any irrationally or unlawfully in taking the view which he did in relation to the 1989 X-ray certificate. Insofar as it is relevant the fundamental point here is that there is no evidence of a relevant change in circumstances in relation to the issue about the 1989 X-ray.[53]For all of those reasons, therefore, I am satisfied that this claim for judicial review does not succeed and must be dismissed. Mr Edwards: Well, my Lord, I am instructed to seek our costs. I understand that the claimant is legally aided, so it will be just the usual order JUDGE DAVIES: I order 1) claim dismissed 2) the claimant shall pay the defendant's costs, but the claimant being in receipt of community legal funding such order shall not be enforced nor shall there be any detailed assessment without further order of the court. There shall be a detailed assessment of the claimant's publicly funded legal costs. MR EDWARDS: Thank you. JUDGE DAVIES: Thank you both very much for your extremely helpful and impressive arguments. MR ENGELMAN: I have one more matter. Could your Lordship please note in your order, if the claimant could have seven days in which to make application to the court in writing for leave to appeal if so advised. JUDGE DAVIES: I will not give permission to appeal. You will have to apply for permission to appeal to the Court of Appeal. There is no obligation on you to seek permission from me first. If you get instructions to apply for permission you can just go direct to the Court of Appeal. If you need to do so you can state on the appeal form that I made that decision at the end of the hearing.