Secretary of State for Defence v Shaun Francis Rusling [2003] EWHC 1359 (QB)

IN THE HIGH COURT OF JUSTICE

QUEENS BENCH DIVISION

[2003] EWHC 1359 (QB)

Case No Case No: QB/2002/APP/0735

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Between

Secretary of State for DefenceAppellant

Shaun Francis RuslingRespondent

President of the Pensions Appeal Tribunal (England and Wales)

IntervenorInterested Party

Before

Mr Justice Newman

Philip Havers QC, Steven Kovats (instructed by Treasury Solicitor) for the Appellant

Rabinder Singh QC, Conor Gearty(instructed by Linder Myers Solicitors) for the Respondent

Clive Lewis (instructed by the Treasury Solicitor) as Advocate to the Court

Daniel Stilitz (instructed by Treasury Solicitor) for Interested Party/Intervenor

Hearing dates : 14 & 15 April 2003

Date 13 June 2003

[1]Mr Justice Newman : This is an appeal by the Secretary of State for Defence. On 19 April 2002 the Pensions Appeal Tribunal ("the Tribunal") allowed an appeal by Shaun Francis Rusling ("the Respondent") against a decision of the Secretary of State dated 6 June 1994. The Secretary of State appeals pursuant to the leave of this court in accordance with section 6(2) Pensions Appeal Tribunals Act 1943 ("the 1943 Act"). This judgment is divided into the following parts: THE DECISIONS THE LEGAL FRAMEWORK THE ISSUES(i) The central issue

(ii) The relevance of diagnostic labelling

(iii) The interpretation of Section 1(1) of the 1943 Act

(iv) Whether notice was given under rule 9(2) of the 1980 Rules (v) Whether the Tribunal should have concluded it had been deprived of the jurisdiction or stayed its hand and declined to exercise its jurisdiction. The facts and circumstances of the appeal to the Tribunal Section 5B of the 1943 Act The carrying out of reviews under Article 67 of the SPO The relevance of the Royston principle What ought to have been regarded as arising on the appeal? Can the Tribunal's decision stand? WIDER CONSIDERATIONS THE DECISIONS

[2]The Tribunal found "that the injury, wound or disease on which the claim is based namely: Gulf War syndrome is attributable to service" The decision and the written reasons for it were issued by the Chairman (Mr Hugh Stubbs) on 20 May 2002.

[3]The Respondent has made various claims in connection with service in the army. The appeal in question concerned two decisions. This appeal is concerned with his allegation that he suffers from a condition called Gulf War syndrome, which condition is attributable to war service. The other, a claim in connection with vaccine damage was left over by the Tribunal in the following terms:

"We are aware that further research (in particular a marmoset study) is being conducted at DERA Porton Down. The research is due to be concluded in late 2003. We recommend that the Secretary of State should review under Article 67 SPO [The Naval, Military and Air Forces etc (Disablement and Death) Service Pensions Order 1983 (SI 1983/883)] the decision in relation to vaccine damage in early 2004 in the light of the results of that and any other concluded and published research."

[4]It is obvious that the Respondent's appeal was heard many years after the decision. The reasons for the delay are not relevant, save to the extent it demonstrates the impact which the simultaneous pursuit of appeals can create. The Formal Notice of the decision to reject the Respondent's claim is of critical importance to the resolution of the issues which arise on this appeal. It was in the following terms:

" DL225 (6/93) Formal Notice of decision on your claim for a War Pension Surname: RUSLING Other names: SHAUN FRANCIS Unit: R A M C Rank: SERGEANT War Pension reference number: M2/121822 Date of your claim: 07.12.93 Condition(s) for which you have made a claim: GULF SYNDROME Date of this decision: 06.06.94 Decision Your claim for a War Disablement Pension under the Naval, Military and Air Forces etc….(Disablement and Death) Service Pensions Order has been rejected on the grounds that your disablement is not due to a wound, injury or disease which a.Is attributable to service; or b.existed before or arose during service and has been, and remains, aggravated thereby. If you disagree with this decision If you disagree with this decision you have the right to appeal to an independent tribunal. This means three people, who are not from the War Pensions Directorate, will look at your claim again. How to Appeal If you want to appeal you should write to the address at the top of this notice. We will send you a form to fill in. Please write 'Entitlement Appeal' at the top of your letter. Also tell us your War Pension reference number which is shown above. When to Appeal There is no time limit for appealing, but, for the reasons we explain below, it is in your own interest to appeal as soon as possible if you want to do so. If you appeal within 3 months from the date of this decision, and your appeal is successful, we will pay your pension back to the date you originally claimed. If you appeal after 3 months and your appeal is successful, we will only be able to pay your pension from the date of your appeal. Mrs S Roskell "

[5]By a letter accompanying the Formal Notice, the Respondent was informed, in a little more detail, of the reasons for the decision to reject his claim:

"DL224/4/94 Mr S F Rusling 41 Tison Garth ANLABY Hull HU10 6US M2/1213822 06.06.94 0253 858858 Dear Mr Rusling, We are sorry if you are disappointed but your claim for a War Disablement Pension for Gulf syndrome has been turned down. Our doctors have looked very carefully at all the evidence, including the report of your recent medical examination. They have decided that Gulf syndrome, on which your claim is based, is not a condition caused by your service. The doctors have also decided that when you were discharged you were not suffering from Gulf syndrome on which your claim is based, and that you are not suffering from it now. Please read the 'Formal Notice of Decision' which we have sent you with this letter. We have to send you this notice by law. It tells you how to appeal if you disagree with the decision. Yours sincerely Mrs S Roskell"

[6]The record also shows that on 6 June 1994 an interim assessment at 40% was made for(1) Post-traumatic Stress Disorder

(2) Major Depression

(3) Crush Fracture Lumbar Vertebrae 1,2 (1989), as being attributable to service. The Secretary of State has extensive powers to review any claim under Article 67 of the SPO. At the centre of the dispute arising on the appeal is a question whether he reviewed the 1994 decision in connection with the Respondent's Gulf War syndrome claim in 1997, after an appeal against the 1994 decision had been lodged. It is submitted that on the review he accepted the claim as lodged in all respects save only that he rejected Gulf War syndrome as the condition on which the claim was based. He substituted as the relevant underlying condition "Symptoms and Signs of Ill Defined conditions ("SSIDC").

[7]The 1992 International Statistical Classification of Diseases and Related Health Problems, published by the World Health Organisation, Chapter XVIII, contains extensive categorisation of "symptoms and signs……. regarding which no diagnosis classifiable elsewhere is recorded". The explanatory text is significant because it brings within the International Classification of Diseases a range of conditions and symptoms for which no final diagnosis has been established. "This chapter includes symptoms, signs, abnormal results of clinical or other investigative procedures, and ill-defined conditions regarding which no diagnosis classifiable elsewhere is recorded. Signs and symptoms that point rather definitely to a given diagnosis have been assigned to a category in other chapters of the classification. In general, categories in this chapter include the less well-defined conditions and symptoms that, without the necessary study of the case to establish a final diagnosis, point perhaps equally to two or more diseases or to two or more systems of the body. Practically all categories in the chapter could be designated "not otherwise specified", "unknown etiology" or "transient". The Alphabetical Index should be consulted to determine which symptoms and signs are to be allocated here and which to other chapters. The residual subcategories, numbered .8, are generally provided for other relevant symptoms that cannot be allocated elsewhere in the classification. The conditions and signs or symptoms included in categories R00-R99 consist of:(a) cases for which no more specific diagnosis can be made even after all the facts bearing on the case have been investigated;

(b) signs or symptoms existing at the time of initial encounter that proved to be transient and whose causes could not be determined;

(d) cases referred elsewhere for investigation or treatment before the diagnosis was made;

(e) cases in which a more precise diagnosis was not available for any other reason;

(f) certain symptoms, for which supplementary information is provided, that represent important problems in medical care in their own right."

[8]The controversy which has ensued has given rise to a number of important issues in connection with the jurisdiction of the Tribunal, its rules and procedure and the principles which govern the resolution of disputes between service personnel and the Ministry of Defence.

[9]The letter from the War Pensions Agency informing the Respondent that "the previously rejected condition of Gulf War syndrome" had been replaced by the condition:

"Symptoms and Signs of Ill Defined Conditions" is dated 26 March 1997 and is in the following terms: "26.3.97 WAR PENSIONS AGENCY LETTER TO APPELLANT We are pleased to inform you that we can increase the amount of money that we can pay you. We have accepted the condition Symptoms and Signs of Ill-Defined Conditions as being caused by your service. This has been accepted with effect from 7.12.93 and replaced the previously rejected condition of Gulf War syndrome, The conditions rashes, numbness feet, pain in joints, frequency micturition, kidney infection, sweating/fever and chest infection are part and parcel of this accepted condition and any disablement caused by these conditions is included in the assessment. We have assessed your disablement from this condition together with your previously accepted conditions. Your assessment is 50 per cent from 7.12.93, 40 per cent from 1.10.94 and 80 per cent from 1.12.95. The above award disposes of your assessment appeal to the Pensions Appeal Tribunal. You cannot get War pension for benign neoplasm left conjunctiva and back injury (1993) because they were not caused or made worse by your service. The condition pains in hips is part and parcel of your rejected condition back injury (1993). You cannot get a War Pension for arthritis of hands because our doctors have advised us that there is nothing in the available evidence to show that you were suffering from it when you were discharged or that you are suffering from it now. We are continuing to process your entitlement appeal against the rejected conditions asthmas, folliculitis (claimed as boils), vaccine damage, lumbar spondylosis, mechanical low back pain syndrome and pes planus. Could you please inform us who you would like to represent you at this appeal. I have enclosed form WPA 732A and a return envelope for your use. "

THE LEGAL FRAMEWORK

[10]The fundamental contention advanced for the Secretary of State is that by his acceptance of the claim in connection with all the symptoms and conditions upon which the Respondent had based his claim for Gulf War syndrome, there was nothing left for the Respondent to appeal about and the appeal should have been struck out by the Tribunal.

[11]Section 12(1) of the Social Security (Miscellaneous Provisions) Act 1977 provides for the regulation and manner of providing for benefits connected with service in the armed forces as follows:

" 12 Exercise by Order in Council of existing powers relating to benefits for death or disablement through service in the armed forces " (1) Any power of Her Majesty, whether under an enactment or otherwise, to make provision about pensions or other benefits for or in respect of persons who have been disabled or have died in consequence of service as members of the armed forces of the Crown shall continue to be exercisable in any matter in which it may be exercised apart from this subsection and shall also be exercisable by Order in Council in pursuance of this subsection; and such an Order shall be made by statutory instrument and laid before Parliament after being made."

The scheme has been laid out and provided for by Order in Council, namely the SPO. It has been amended on a number of occasions but save for taking account of the amendments they call for no particular comment.

[12]The features of the scheme, which are noteworthy and of relevance to the issues to be resolved, are the following: i. The scheme is discretionary; Article 3 of SPO states:

"Under this Order awards may be made where the disablement or death of a member of the armed forces is due to service."

That said, the exercise of discretion is regulated by the SPO and the process is subject to appeal to the Tribunal and to the High Court. ii. There are no formal procedures laid down for the making of a claim. Claims do not have to be advanced in any particular form. In some instances no claim is required (See Article 3 B of the SPO). iii. It is for the Secretary of State to consider claims in accordance with the law and, for this purpose, methods and procedures have been established for considering claims. The function is performed by the War Pensions Agency ("WPA"), now the Veterans' Agency with the assistance of medical advisers. iv. The system, as material to this appeal, is grounded in a process of certification which ensues, after necessary verification of particulars, according to Articles 4 and 5 as follows. Article 4 governs claims made in respect of disablement or death occurring no later than 7 years after the termination of service. "4.-(1) Where, not later than 7 years after the termination of the service of a member of the armed forces, a claim is made in respect of a disablement of that member, or the death occurs of that member and a claim is made (at any time) in respect of that death, such disablement or death, as the case may be, shall be accepted as due to service for the purposes of this Order provided it is certified that – (a) the disablement is due to any injury which – (i) is attributable to service: or (ii) existed before or arose during service and has been and remains aggravated thereby; or (b) the death was due to or hastened by – (i) an injury which was attributable to service; or (ii) the aggravation by service of an injury which existed before or arose during service. (2) Subject to the following provision of this article, in no case shall there be an onus on any claimant under this article to prove the fulfilment of the conditions set out in paragraph (1) and the benefit of any reasonable doubt shall be given to the claimant. (3) Subject to the following provisions of this article, where an injury which has led to a member's discharge or death during service was not noted in a medical report made on that member on the commencement of his service, a certificate under paragraph (1) shall be given unless the evidence shows that the conditions set out in that paragraph are not fulfilled. (4) The provisions of paragraphs (2) and (3) shall not apply to a claim in respect of the disablement or death of a member of the Reserve or Auxiliary Forces where that disablement is due to, or that death is due to or hastened by, a disease other than a disease caused or aggravated by an accident but – (a) such disablement or death shall be certified in accordance with paragraph (1) if it is shown that the conditions set out in this article and applicable thereto are fulfilled; (b) 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. (5) Where there is no note in contemporary official records of a material fact on which the claim is based, other reliable corroborative evidence of that fact may be accepted. (6) For the purposes of this article "service" means service as a member of the armed forces after 2 nd September 1939." Article 5 governs like claims made more than 7 years after the termination of service. "5.-(1) where, after the expiration of the period of 7 years beginning with the termination of the service of a member of the armed forces, a claim is made in respect of a disablement of that member, or in respect of the death of that member (being a death occurring after the expiration of the said period), such disablement or death, as the case may be, shall be accepted as due to service for the purposes of this Order provided it is certified that – (a) the disablement is due to an injury which- (i) is attributable to service after 2 nd September 1939; or (ii) existed before or arose during such service and has been and remains aggravated thereby; or (b) the death was due to or substantially hastened by- (i) an injury which was attributable to service; or (ii) the aggravation by service of an injury which existed before or arose during service. (2) A disablement or death shall be certified in accordance with paragraph (1) if it is shown that the conditions set out in this article and applicable thereto are fulfilled. (3) The condition set out in paragraph(1)(a)(ii), namely, that the injury on which the claim is based remains aggravated by service after 2 nd September 1939, shall not be deemed to be fulfilled unless the injury remains so aggravated at the time when the claim is made, but this paragraph shall be without prejudice, in a case where an award is made, to the subsequent operation of article 1(8) in relation to that condition. (4) 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. (5) Where there is no note in contemporary official records of a material fact on which the claim is based, other reliable corroborative evidence of fact may be accepted. " v. The certification process is expressly provided for in Article 1(4) which specifies how and by whom a certificate will be issued. In summary either by the Tribunal or the High Court (see Article 1 (4)(a)) or "(b) where no such decision has been given and the matter involves a medical question – (i) in accordance with a certificate on that question of a medical officer or board of medical officers appointed or recognised by the Secretary of State, (ii) ………." vi. The SPO makes special provision with regard to the onus of proof. Where the claim is made not later than 7 years after the termination of service "….in no case shall there be an onus….to prove the fulfilment of the conditions set out in paragraph (1) and the benefit of any reasonable doubt shall be given to the claimant. (Article 4(2))" Where more than 7 years has elapsed: "where, upon reliable evidence, a reasonable doubt exists whether the conditions are set out in paragraph (1) are fulfilled, the benefit of that reasonable doubt shall be given to the claimant." vii. Disablement is defined as "physical or mental injury or damage, or loss of physical or mental capacity (and "disabled" shall be construed accordingly)" (Schedule 4 Part II). Injury "includes wound or disease". (Schedule 4 Part II) viii. Extensive powers of review are conferred on the Secretary of State enabling him to review " …..any decision accepting or rejecting a decision for a pension…….at any time on any ground". (Article 67)

[13]The Ministry has issued "A Guide to War Pensions Policy". (Edition January 1997, "the Guide"). It has also compiled a manual for Medical Advisers (WP Medical Advisers Instructions and Procedures Manual, hereafter "the Manual") which is to be read in conjunction with MPM 57A, Medical Adjudication Guidance and Policy Statements. It is clear from the Manual that the medical advisers are charged with a responsibility for making a diagnosis (where possible) in connection with each claim even where the claim has not been advanced by reference to one, thereby enabling a certificate to be issued stating the condition upon which a claim for entitlement has been based.

[14]Section 1(1) of the 1943 Act provides: "1(1) Where any claim in respect of the disablement of any person …….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 fulfil 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….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…..an appeal shall lie…..on the issue whether the injury was attributable to such service." (3)……. (3A)……. (4)………

[15]Section 5B stipulates that in connection with an appeal to a Tribunal, the Tribunal – "(a) need not consider any issue that is not raised by the appellant or the Minister in relation to the appeal; and (b) shall not take into account any circumstances not obtaining at the time when the decision appealed against was made."

[16]The instructions and procedures to the medical advisers contained in the Manual are consistent with the Pensions Appeal Tribunals (England and Wales) Rules 1980 SI.1980 No.1120 ("the 1980 Rules). The Rules envisage that a need could arise for a wide ranging inquiry into the decision of the Secretary of State. It should be remembered that the Secretary of State's decision is not made after a hearing but after he has enquired into the claim as lodged, supplemented as necessary by any answers to questions addressed to the claimant and when he has received the opinions and findings of the medical advisers. The Formal Notice of the rejection of a claim and an accompanying letter provide brief reasons for the decision. Under the Rules the Secretary of State must set out, for the purposes of an appeal, "the relevant facts relating to the appellant's case as known to the Secretary of State, including the relevant medical history of the appellant". (Rule 5(a), also the reasons for the decision made (Rule 5(1)(b)). The appellant may dispute any of the facts in the Statement of Case (Rule 5(3)) supplying "such documentary evidence in support of his case as is in his possession or as he can reasonably obtain" (Rule 5(3)). The Tribunal has power to require further information and/or to take the opinion of a medical specialist or other technical expert (Rule 5A(1)).

[17]If the Secretary of State, having received notice of an appeal, wishes to review his decision he has the power to do so under Article 67 of the SPO. If having done so he decides the issues arising on the appeal in favour of the appellant the Secretary of State shall give notice of his decision to the Pensions Appeal Office and to the appellant, and the appeal shall be struck out (Rule 9(2) of the 1980 Rules). THE ISSUES The central issue

[18]The central question raised on the appeal is whether the Tribunal should have continued to entertain it once it had been informed that the Respondent's entitlement to a pension, based upon disablement due to the condition Gulf War syndrome, had been accepted in all respects but for the condition, Gulf War syndrome. The Secretary of State submits that the Tribunal had no jurisdiction to hear the appeal once the Respondent's entitlement to a pension had been accepted, since the only issue which remained between the parties was a disagreement over the diagnostic label for the underlying injury upon which the claim was based.

[19]It has been common ground that the Tribunal became seized of the appeal when the notice of appeal was issued and the question therefore is whether anything occurred to deprive it of the jurisdiction which it had lawfully assumed. It was common ground that an appellant can withdraw an appeal (rule 9(1) of the 1980 Rules). The Respondent declined to do so. But it was submitted that the Secretary of State had decided the issue on the appeal in favour of the appellant and had given notice of his decision in accordance with rule 9(2) and accordingly the appeal should have been struck out. Alternatively it was submitted that even if no notice under rule 9(2) had been given it was plain that as a result of the review there was no issue for the Tribunal to decide and that it should have refused to accept any continuing jurisdiction to decide the appeal.

[20]These contentions gave rise to factual considerations and significant differences of view between the President of the Tribunal and the Secretary of State. The issues are likely to have a significance going well beyond the facts of the case and no appeal lies from this court's decision. As a result the court received assistance from counsel for the President as the Interested Party, as well as from counsel acting as advocate for the court, instructed by the Attorney General. The court is indebted to all counsel for their careful argument.

[21]The central issue and the sub-issues to which it gave rise can be examined under four headings: i)The relevance of diagnostic labelling. ii)The interpretation of Section 1(1) of the 1943 Act. iii)Whether notice was given under rule 9(2) of the Rules. iv)Whether the Tribunal should have concluded it had been deprived of its jurisdiction or stayed its hand and declined to exercise its jurisdiction. The relevance of the diagnostic labelling

[22]Although specific provisions exist in connection with the onus of proof which falls upon a claimant they do not relieve a claimant of the duty to establish certain ingredients of his claim. A claimant must establish: i)military service:- and ii) disablement. These matters, if established on a balance of probabilities, shift the onus of proof in connection with attribution or causation to the Secretary of State. Since disablement is defined as "physical or mental injury or damage, or loss of physical or mental capacity" and "injury includes wound or disease", a claimant must establish an "injury". Section 1(1) of the 1943 Act refers to this as the "injury upon which the claim is based". Put another way it is for the claimant to establish the injurious process upon which he bases his claim. Once he has done so the issue of attribution or causation will fall to be decided in connection with the injurious process upon which he founds his claim. The task of investigating these fundamental aspects of a claim fall to the medical advisers instructed by the WPA on behalf of the Secretary of State.

[23]Since there are no formal requirements in connection with a claim there is no obligation upon a claimant to select a diagnostic label for the disablement or injury upon which he relies. Many claimants make their claim by reference to a symptom or symptoms. But it cannot be disputed that the decision making process in connection with a claim will involve medical advisers selecting a diagnosis or term which accurately denotes the basic injurious process relied upon by a claimant, whether or not he has applied one to his claimed symptoms. The Respondent in this case filled out a form which identified both the condition (Gulf War syndrome) and the symptoms from which he alleged he was suffering.

[24]The Manual is emphatic about the need to identify the basic injurious process in all cases. For example it states:

"The routine to be followed can be summarised as follows:- i What is the man claiming? (symptoms and pathology) ii Has he got it? (pathology) iii If not, what has he got? (pathology)." (Para 50051) Again: "

If there is more than one pathological process underlying the claimed disablement then each pathology must be considered individually, and its relationship (or not) to service established."(500552)

[25]The Manual contains an account of the historical practice adopted in connection with labelling, but states the present position to be as follows:

"The label should be as precise as possible. The MA [medical adviser] should make every reasonable effort to identify the basic injurious process and select the correct label. It is helpful to select labels used in our appendices. This facilitates subsequent defence at appeal."(50100) "

If the basic injurious process is not identified correctly at the claiming stage, and the label is wrong (or a symptomatic label is used), problems may arise at the appeals stage. For example the man could be notified of a condition which he does not have but nonetheless, he has appeal rights in respect of that condition."(50101)

[26]Having regard to the principal submission advanced for the Secretary of State, a section in the Manual, headed "Change of label" is of particular significance. "50150 It must be remembered that once a certificate has been given, a change of label is an alteration to a certificate, a legal document upon which the Secretary of State must base his decision. Therefore, any change in the label when entitlement of attributability or aggravation has already been notified must be in accordance with Article 67 SPO 1983. If there is not notification of entitlement then Article 67 does not apply and the label can be changed." "50151 During the course of a review or an appeal there may be a sound reason to change the label. The appellant may however wish to continue the appeal under the original label. In such a case both labels can be presented to the PAT, provided both labels refer to the same injurious process or we can show that the label used by the appellant refers to a condition which does not exist. The Agency may not be able to accept a label used by an appellant for other reasons eg "partial gastrectomy". Entitlement cannot be considered under that label for the term refers to treatment for a peptic ulcer, not the basic injurious process itself. If the appellant insists on the use of the term "partial gastrectomy" the OMD must outline the reasons for the decision on the basic injurious process present, "peptic ulceration" and explain why the term "partial gastrectomy" cannot be used as a label." The paragraphs under the heading "Not found" are also relevant:

"50202 If a claim is made for an injury, wound or disease, and it is established that the injury, wound or disease does not exist now, and never has existed, then we can reject the claimed condition as "not found"

. Strenuous efforts should be made to establish whether the condition does, or ever has existed. "Not found" should never be used to reject a symptom or a non-specific label. A common scenario is, for example, a claim for "Injury to the left knee", which the man relates to an incident in, say, 1944." "50203 The Secretary of State does not accept the claimed incident, and there is nothing of relevance in the service medical documents. However, GP records reveal that the man presented in 1991 with a painful left knee, subsequently diagnosed as early osteoarthritis. In these circumstances, the correct approach is to reject:- "Injury to left knee 1944" – not found "Osteoarthritis left knee" – NANA" "50204 It is not sufficient to reject the claimed injury alone. The basic injurious process causing the current disablement must also be identified and its relationship to service (if any) must be determined." "50205 In the event of an appeal, the PAT is presented with both labels, and the man is thereby given the fullest possible rights of appeal. The PAT is able to pronounce upon both the claimed injury and the pathology giving rise to the current disablement." "50205 If, as a question of fact, the PAT decides that the injury did occur as claimed, and overturns our decision, then it is possible for us to certify an assessment of Nil in respect of the injury (dated). The PAT may well uphold the rejection of the osteoarthritis. If this label alone is put before the PAT, their options are restricted, and they may feel that their only choice is to overturn our decision, which would then result in our having to certify an assessment encompassing all the current disablement, which is non-service related."

[27]It is obvious that the issue of attribution depends upon the terms of the diagnostic label. In considering a claim the Secretary of State must examine the facts which support or disprove the relationship of the diagnosed pathology to the service of the claimant. A simple example will serve to illustrate the point. If an "injury" is said to be connected with an event (a fire or explosion at a base) then investigation of the event is part and parcel of the issue of attribution. As paragraph 50101 (see above) states, the purpose of labelling is to apply the correct label. If a claimant has grounds for maintaining the Secretary of State's diagnosis is wrong it seems obvious that he should have the right to challenge it. The Manual plainly recognises the relevance of correct diagnostic labelling and its relevance to an appeal to the Tribunal. In truth the Secretary of State did not submit otherwise. His contention is a very narrow one. It amounts to a proposition that diagnostic labelling is relevant and can be appealed but not if he accepts a claim according to a diagnostic label he regards as appropriate and rejects the one relied upon by a claimant

[28]The concept that an issue fundamental to the consideration of a claim, namely the correct basic injurious process, which it is common ground must properly be subject to an appeal, can cease to be within the jurisdiction of an appeal, even where there has been no agreement on it, seems odd. If "labelling" is fundamental to the process why should the claimant not have a right to be heard on it? The narrow refinement, which underpins the case for the Secretary of State, is whether an issue as to the diagnostic label can survive an acceptance of an entitlement to a pension where all the symptoms advanced in support of the claim have been accepted as giving rise to a disability. In my judgment the refinement does not alter the position. The Secretary of State cannot succeed in this appeal upon the basis that diagnostic labelling is not relevant in a case where he has accepted a diagnostic label upon which he is prepared to accept the claim, but where the claimant's case is based upon a different diagnosis. There has been an abundance of material and argument which establishes that diagnostic labelling is fundamental to the consideration given to a claim. I turn next to examine the 1943 Act to see whether Parliament has legislated so as to provide for the result for which the Secretary of State urges. The interpretation of Section 1(1) of the 1943 Act

[29]Section 1 of the 1943 Act is headed "Appeals against rejection of war pension claims made in respect of members of the naval, military or air forces." "1.-(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?or under a scheme made under section 1 of the Polish Resettlement Act 1947? 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 fulfil the following condition, 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 Pension 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. (3) Where any claim in respect of the death of any person made under any such Royal Warrant, Order in Council ?Order of her Majesty or scheme? as aforesaid is rejected by the Minister on the ground that neither of the following conditions is fulfilled, namely--- (a) that the death of that person was due to or hastened by an injury which was attributable to any relevant service; (b) that the death was due to or hastened by the aggravation by any relevant service of an injury which existed before or arose during any relevant service; the |Minister shall notify the claimant of his decision, specifying that it is made on that ground, and thereupon an appeal shall lie to the Tribunal on the issue whether the claim was rightly rejected on that ground. ?(3A) The last foregoing subsection shall not apply to any claim made under any such Royal Warrant, Order in Council?, Order of Her Majesty or scheme? as aforesaid in respect of the death of a person who dies after the expiration of the period of seven years beginning with the end of any relevant service of that person, but where ay such claim is rejected by the Minister on the ground that neither of the following conditions is fulfilled, namely (a) that the death of that person was due to or substantially hastened by an injury which was attributable to any relevant service; (b) that the death was due to or substantially hastened by the aggravation by any relevant service of an injury which existed before or arose during any relevant service; the Minister shall notify the claimant of his decision, specifying that it is made on that ground, and thereupon an appeal shall lie to the Tribunal on the issue whether the claim was rightly rejected on that ground?. (4) Where, in connection with the determination, for he purposes of any such claim as is referred to in the foregoing provisions of this section, of (i) the date by reference to which the rank of the disabled or deceased person is to be determined, or (ii) in the case of a claim by or in respect of a widow, widower, wife, husband or child, the date before which any marriage or any birth, legitimisation or adoption of a child must have taken place, it is contended that, as the result of a particular period of any relevant service, the disabled or deceased person suffering aggravation of the injury on which the claim is based, being aggravation which in the case of death persisted until death, the Minister shall, if he rejects the said contention, notify the claimant of his decision, and thereupon an appeal shall lie to the Tribunal on the issue whether, as a result of such service during that period, the disabled or deceased person suffered such aggravation." Section 1 has a formulaic quality because it requires notification of the rejection of a claim to follow the terms of the section, but where a claimant has failed to discharge the onus upon him to establish either military service or disablement, notification that the injury upon which the claim is based did not exist before or arise during any relevant service or remain aggravated thereby will be sufficient notice to give rise to a right of appeal on that issue. If a claimant has alleged he suffers from an injury but the Secretary of State has decided that he does not suffer from that injury, notification following the section will give rise to a right of appeal on that issue.

[30]The need for a claimant to establish the injury upon which his claim is based, namely disablement, has long been recognised. (See Royston v Minister of Pensions Denning, J 1948) The Secretary of State's right to reject on the ground a claimant has failed to establish disablement must follow. This position is not affected by the fact that a claimant may have raised disablement simply by reference to his symptoms. If he does, the Secretary of State will have considered the alleged symptoms and, where appropriate, attached a diagnostic label to the symptoms or rejected the existence of the symptoms as giving rise to any disablement.

[31]The Respondent was duly notified in accordance with Section 1(1) and informed that the doctors "…..have decided that Gulf syndrome, on which your claim is based, is not a condition caused by your service" and that "the doctors have also decided that when you were discharged you were not suffering from Gulf syndrome on which your claim is based, and that you are not suffering from it now." The Respondent was entitled, having received the rejection of his claim on those grounds to appeal to the Tribunal on the issue as to whether his claim had been rightly rejected on those grounds.

[32]The Respondent's case is, and has always been, that he was suffering from Gulf War syndrome at discharge and still suffers from it and that it was caused by his military service. The Secretary of State has not at any time withdrawn his rejection of the claim that the Respondent suffers from Gulf War syndrome. Indeed he has maintained this ground of rejection because he does not accept that the claimant (or for that matter any Gulf veterans) suffers from Gulf War syndrome. The rejection was tied to the condition on which the claim was based. It had to be, and in that regard his rejection stands. That said he has withdrawn his rejection of a claim for disablement caused by military service arising out of the symptoms complained of by the Respondent. The Secretary of State has therefore accepted the claim for disablement on the ground of an injury upon which the claim was not based and has maintained his rejection of the claimant's entitlement to disablement due to the injury upon which the claim was based.

[33]The words of the section require claims to be rejected on a specific ground. Thereafter an issue will remain for appeal as to whether it "was rightly rejected on that ground". The contrary argument, advanced for the Secretary of State, is that the substance of the claim for which a right of appeal is accorded is the rejection of the claim and not the ground upon which it has been rejected. If the claim has been met according to a level of financial entitlement to which it could properly give rise, then there will be no rejection within the meaning of section 1(1).

[34]Mr Lewis, advocate to the court, pointed out that section 1(1) must be taken to include an issue as to whether there has been an "injury", but that the section only implicitly encompasses that issue. He submitted that it was therefore appropriate to ask: why should the section be interpreted as implicitly extending to the description of the injury? Could the words "the injury on which the claim based" be regarded as words of description? As such, he submitted, could it be that the answer lies in drawing a distinction between whether a diagnostic label exists to cover the "symptoms" upon which the claim is based and a case where it is accepted one exists, but there is a dispute about which one is correct?

[35]The questions are helpful in resolving the dispute which has arisen. They fall to be answered as follows. In my judgment section 1(1) expressly contemplates an appeal as to whether there has been an "injury". The issue of attribution within section 1(1)(a) and (b) is whether "…..the injury on which the claim is based is attributable to any relevant service" and whether, "it….arose during any relevant service". The success or failure of a claim may depend upon the conclusion reached on attribution. For example a claim may be based on mustard gas poisoning in the course of service in a particular war zone. If the Secretary of State is satisfied beyond reasonable doubt that there was no exposure to mustard gas in that war zone, he would be entitled to reject the claim as not being attributable to any relevant service. If the medical advisers had advised that the symptoms arose from a condition other than mustard gas poisoning, for example over exposure to some industrial process when the claimant had been in civilian employment, the Secretary of State would by his decision accept an injury existed, but deny attribution. The words, "the injury on which the claim is based" are words of substance not description.

[36]But the example I have just given can be altered to highlight the facts of this case. Suppose mustard gas poisoning is rejected but another condition attributable to service in the same war zone is accepted as giving rise to an entitlement. Are the words of the section wide enough to confer a right of appeal in such a circumstance? In my judgment the words are plainly wide enough. Indeed the argument for the Secretary of State accepts the words themselves are wide enough and for that reason the substance of the argument has involved inviting the court to ignore some of them in order to support the suggested interpretation.

[37]In my judgment the argument advanced by the Secretary of State is plainly wrong. It invites the court to ignore the words "on that ground" on the particular facts of this case, but accepts the words have application and effect in other circumstances. The same words appear in sub-section (3), (3A) and section 2(1) and are reflected as the statutory approach to appeals under section 2(2). According to the argument it is only on the narrow facts of this case that the words "on the ground" have to be ignored. In other instances they can and will apply. In my judgment the legislative structure is clear and it requires the Secretary of State to notify the claimant of his decision to reject the claim and to specify the ground for rejection. The section intends that the decision and the ground upon which it is based should form the basis for an appeal. The Rules require the Statement of Case to contain the reasons for the decision. That this is necessary can hardly be doubted. Further it is plain the section must extend to and embrace consideration of the "injury upon which the claim is based" because those words are in the section.

[38]The following simple and uncontroversial points can be made. (a)A claimant may claim he is suffering from an injury but there may be an issue as to whether he is suffering from any injury;. (b)A claimant must show some injury. The injury upon which a claim is based may enable the Secretary of State to reject the claim because it could not have been caused in the manner alleged and is therefore not attributable to service. (See Royston v The Minister of Pensions) (c)It is important that the claimant should not be diagnosed as suffering from the wrong injury. (See the Manual, paragraph 50101)

[39]I am satisfied that no route to the result sought by the Secretary of State on this appeal can be found by a process of interpretation of the appeal provisions of the 1943 Act.

[40]As Mr Lewis submitted, the simple point underlying the argument may be that where the claimant's symptoms have been accepted as giving rise to an entitlement, there may not be any prejudice to the claimant. Why then should the Tribunal be concerned to determine an appeal? I agree that this question will arise and merits attention but such considerations are outside the questions of statutory interpretation.

[41]I shall turn therefore to the next basis upon which it has been submitted jurisdiction did not exist. Whether notice was given under rule 9(2) of the 1980 Rules

[42]The letter dated 26 March 1997 addressed to the Respondent was in the Statement of Case prepared for the appeal. The Statement of Case was prepared for the Tribunal which was to hear the appeal and the statement was dispatched to the Pensions Appeal Office. The Secretary of State submitted that as a result the Tribunal was obliged to strike out the appeal in accordance with rule 9(2).

[43]Rule 34 of the 1980 Rules provides, in so far as is relevant:

"(1) Any notice, document or other communication required or authorised by these Rules to be given or sent to the Pensions Appeal Office, shall be delivered, or sent by post addressed to, the Pensions Appeal Office. (2) …… (3)….. (4) Where under these Rules any notice, certificate, request, direction, application or communication is to be given or made, it shall be given or made in writing."

[44]Initially it was argued that notice to the Tribunal at the hearing in connection with the appeal was equivalent to notice to the Pensions Appeals Office. The argument was untenable and was not pursued. The Office is in Chancery Lane, London and Tribunals are convened in various parts of England and Wales. The Tribunal is not the Office. An underlying purpose of the rule is to achieve administrative efficiency to avoid costs and time and to enable short consideration to be given to whether the issue on the appeal has been accepted, so that the appeal can be struck out. The concept of a "notice" is that the recipients can consider its effect acting in the knowledge that it is a "notice" and not part and parcel of something else. "Notice" in the 1980 Rules is not used in the broad sense of simply acting in a way in which something is brought to the attention of someone. The initial argument not being pursued, the next argument was that the Statement of Case on the appeal contained the letter accepting the claim, notice had been given to the office because the statement was sent there.

The President of the Tribunal states in his evidence:

"by established practice, "notice" for the purpose of rule 9(2) is given by a formal written notice in the form of an application by the Secretary of State to the Tribunal Office to strike out the appeal"

. There is no prescribed form of notice and differing versions have been exhibited. They have one thing in common. Each purports to be a notice requesting a strike out and calls upon the Tribunal to grant the request to strike out the appeal. The letter dated 26 March 1997 gave no notice at all that the Secretary of State intended to apply to strike out the appeal. It did not purport to be a notice conveying any such intention on the part of the Secretary of State. It was not addressed to the Tribunal or the Office. Mr Pike, in his witness statement served on behalf of the Secretary of State explained that the letter was intended to convey the results of a review pursuant to Article 67 of the SPO, but he had to accept that even as a notification of that event it "could have been clearer".

[46]The explanation provided to the court for the absence of a formal, clear notice in respect of the Respondent's claim for disablement based on Gulf War syndrome is, that there were other claims made by the Respondent which had not been accepted (vaccine) and that on such occasions a formal notice is not employed, as a matter of practice by the WPA. It does represent best practice under the Rules. In future the WPA should use a form which is expressed as a notice in accordance with rule 9(2), which identifies clearly and precisely what has been accepted, and exactly what the Tribunal is being invited to strike out. I can accept that the contemporaneous pursuit of different appeals can give rise to difficulties but each must be separately considered.

[47]I am satisfied no notice was given under rule 9(2) and as a result the Tribunal was not required to consider an application to strike out the appeal. Having regard to my conclusion as to the interpretation of Section 1(1) of the 1943 Act it is difficult to envisage the terms of a notice which could have required the Tribunal to strike out the appeal in connection with the original decision. So long as the Secretary of State maintained his rejection of the injury on which the claim was based, there was issue for appeal. That brings me to other submission in connection with the Tribunal's power under rule 9(2).

[48]It was submitted on behalf of the Secretary of State that once a notice under rule 9(2) has been given, the Tribunal has no discretion in the matter, it was bound to strike out an appeal. It was submitted that it was doubtful that the Tribunal had any judicial role left to perform once notice had been given. For the President it was submitted that a decision whether to strike out is a judicial act.

[49]Rule 9(2) has three parts. The first contemplates a position "where….the Secretary of State decides the issue on the appeal in favour of the appellant". The second requires him to give notice of the decision to the appellant and to the Office. The third, provides that the appeal "shall be struck out". The power in the Tribunal to strike out the appeal can only arise if the issue on the appeal has been decided in favour of the appellant by the Secretary of State and he has given due notice of his decision. The Secretary of State has no power to strike out an appeal nor can he finally determine, so as to oust the jurisdiction of the Tribunal, whether the appeal has been decided in the appellant's favour. He has the right to give notice to that effect. Whether or not it should be struck out depends upon whether notice has been given and whether, in the judgment of the Tribunal, the issue on the appeal has been decided in favour of the appellant. To conclude otherwise would be, as the President states, to enable the Secretary of State to determine "an appeal by making a concession based solely on his view of what is required to satisfy the claim".

[50]The President has drawn the court's attention to the practice which has been adopted in cases where differences between the diagnostic label adopted by the Secretary of State and a claimant have arisen and where notice under rule 9(2) has been given. In his opinion "….the label given to a disablement is very important. This is why, when the Secretary of State has reviewed his previous decision, the Tribunal will not strike out an appeal under rule 9(2) without the appellant's consent in circumstances where the Secretary of State has accepted a different "label" to that originally put forward by the claim."

[51]For reasons which will be obvious from what I have already stated this approach is correct. I have no doubt that before an appeal can be struck out the Tribunal must be satisfied:(1) that due notice has been given; and

(2) that the issue on the appeal has been decided in favour of the appellant by the Secretary of State. In order to be satisfied under (2), all the relevant material as to what is to be regarded as the issue on the appeal and the full terms of the subsequent decision must be presented to the Tribunal. The forms which have been exhibited on this appeal appear sufficient to provide for such information to be available to the Tribunal. Whether the Tribunal should have concluded that it had been deprived of the jurisdiction or stayed its hand and declined to exercise its jurisdiction.

[52]There are particular facts in connection with the hearing of the Respondent's appeal which I must consider in order to resolve the issues which arise under this heading. As appears from the letter dated 26 March 1997 the Secretary of State acknowledged the existence of an entitlement appeal against some rejected conditions, namely asthma, folliculitis (claimed as boils), vaccine damage, lumbar spondylosis, mechanical low back pain syndrome and pes planus. The appeal in relation to these conditions was listed for hearing on 10 September 1999.

[53]At the outset of the hearing on 10 September 1999 the Respondent limited his appeal concerning the above category of conditions to lumbar spondylosis, mechanical low back pain syndrome and pes planus. He accepted that so far as vaccine damage was concerned this had been resolved by the acceptance of the condition Acute Vaccine Reaction, and he stated he did not wish to pursue his appeal in relation to asthma or folliculitis.

[54]I am satisfied, largely upon the basis of a contemporaneous manuscript note from Mr Andrew Frith, from the WPA, that the Respondent stated that he was not happy with the SSIDC label but desired to leave the claimed condition, along with the condition of chronic fatigue syndrome, on the file until such time as there was more evidence in favour of the existence of Gulf War syndrome. I am equally satisfied that in the discussion that took place as to what should happen, Mr Frith pointed out that, in the light of the terms of the letter of 26 March, containing an acceptance of the symptoms which had been claimed as derived from Gulf syndrome, there was "no condition to appeal". As I have already held, no notice under rule 9(2) had been given, nor did Mr Frith's submission purport to be a notice under rule 9(2) nor did he submit that there was no jurisdiction to entertain an appeal. The Chairman of the Tribunal was not requested to strike out the appeal either under rule 9(2) or otherwise.

[55]In the light of the evidence I have received from the President, and it was the President who presided that day, I am satisfied he would not have acceded to an application to strike out the appeal, had such an application been made, in the face of a disagreement as to the diagnostic label to be attached to the underlying condition. The issue therefore is whether,on the facts of this case, he was bound to do so. The hearing was adjourned for the purpose of evidence being called as to the existence of the Gulf War syndrome and for evidence of the fact that the Respondent was suffering from that condition. The terms of Mr Frith's note suggest that the Chairman took a strong line in relation to the suggestion that there was, "no condition to appeal". The response of the Chairman is said to explain how at the subsequent hearing, which took place on 18 January 2001 and at the substantive hearing which took place on 19 April 2002, no further application was made in connection with the point and why no attempt was made to advance further argument in connection with it. At this stage, and since the Tribunal's approach is plain on the evidence the court has received, I do not propose to examine the details of the factual differences which emerged. The issue is whether the clear position adopted by the Tribunal on diagnostic labelling, in the circumstances which arose in this case, was right or wrong.

[56]By the time the matter came before the Tribunal on 18 January 2001 section 5B(b) of the Pensions Appeal Tribunal Act 1943 had come into effect. It provided:

"A Pensions Appeal Tribunal …… shall not take into account any circumstances not obtaining at the time when the decision appealed against was made."

The provision came into effect in respect of any appeal before the Tribunal, regardless of when the appeal was made. The President of the Tribunal again presided on 18 January 2001. He was mindful of the change in the law and he treated the occasion as an opportunity for the parties to clarify live issues and to establish what was and what was not in dispute. The note of the decision produced by the President shows that the matter was adjourned for documentary evidence to be produced at the resumed hearing, which supported the existence of Gulf War syndrome as a proper medical diagnosis, and for oral evidence to be called from doctors. An estimate of 5 days was given for the case to be heard and the WPA was to include in a supplementary Statement of Case all the documentary evidence which had been produced by the appellant. It is plain that the Tribunal accepted jurisdiction in connection with a dispute as to whether the Respondent was suffering from Gulf War syndrome and recognised that the bone of contention was not whether he suffered from symptoms attributable to service, but simply whether Gulf War syndrome existed and could be certified as the condition upon which his claim was based. The facts and circumstances of the appeal to the Tribunal

[57]The essential facts in connection with the hearing of the appeal must be taken from the Case Stated, from the chairman, Mr Hugh Stubbs. The Case Stated records that the appeal was regarded as a fresh appeal, not being part-heard from the hearing in January 2001. No submission was made to the Tribunal challenging its jurisdiction to hear the issue laid down for the appeal and the Tribunal therefore considered the appeal by reference to all the documents in the Statement of Case.

[58]The findings, appearing from the Case Stated, were as follows:

"7.We found that the Secretary of State accepted that there was a disablement as required by Royston –v- The Minister of Pensions (ROSWPA Vol 3 1593) ("the Royston decision"). We reached this conclusion based on the following and what is set out in paragraphs 8-12 below. (a)It is the practice of the Secretary of State in making written submissions (usually in the Opinion of Medical Division) to Pensions Appeal Tribunals to refer specifically to the Royston Decision if he wants to argue that he does not accept that the Appellant is suffering or has ever suffered from a claimed disablement. In the substantial majority of entitlement appeals the only issue (whether under Article 4 or Article5) is whether a disablement is attributable to or aggravated by service. The Secretary of State's pragmatic approach therefore saves those involved with appeals a considerable amount of time. (b)In this joint appeal hearing the Secretary of State did specifically refer to the Royston Decision in the Vaccine Damage appeal (see page 665 of the Statement of Case) but did not do so in relation to the Gulf War syndrome appeal. In my opening remarks at the beginning of the hearing I drew attention to this. (c)We were precluded by Section 5B(b) of the Pensions Appeal Tribunals Act 1943 from taking into account any circumstances not obtaining at the time when the decision appealed against was made." 8.We found that at the date of decision Gulf War syndrome was a condition capable of being a disablement. We found that this was implicit from the wording of Mrs Roskell's letter of 6 June 1994 to Mr Rusling. (Annex 2 Page 23) 9.We decided that we were precluded from taking into account the award in 1997 to Mr Rusling for Signs, Symptoms and Ill Defined Conditions by virtue of Section 5B(b) of the Pensions Appeal Tribunals Act 1943. 11.(sic) No submission was made on behalf of the Secretary of State that Mr Rusling did not and never had suffered from a disablement. Mrs Ronson, the representative of the Secretary of State, relied on the two Opinions of Medical Division dated 12 January 2001 (page 491 in the Statement of Case) and 28 November 2001 (page 666 in the Statement of Case). We did not take these two Opinions into account because both were written over six years after the date of the decision appealed against and refer respectively to "current understanding" in paragraph 2 on page 491 and "at this date" in paragraph 4 of page 666. We did however note that in neither Opinion did the Secretary of State refer to the Royston Decision. 12.In relation to both the disablement issue and the Article 4 issue we had regard to the provisions of Section 5B(a) of the 1943 Act. 13.Under Article 4 of the Service Pension Order, the Secretary of State has to prove beyond reasonable doubt that the disablement was not attributable to or aggravated by service. We observed that the Secretary of State, having accepted that the 7 December 1993 claim (but labelled as Signs, Symptoms and Ill Defined Conditions) was attributable to service had put himself into a difficult position arguing that the same disablement (but described as Gulf War syndrome) was not attributable to service. In fact he failed to address the issue instead arguing by reference to the Opinions of Medical Division referred to in paragraph 11 above, that there was no such recognised condition as Gulf War syndrome and that Mr Rusling had been fully compensated by the 1997 award. 14.We considered the documents in the statement of Case and the submissions made on behalf of the Secretary of State and found that there was no evidence that showed beyond reasonable doubt that Mr Rusling's claimed disablement, described as Gulf War syndrome, was not attributable to or aggravated by service. 15.We found that the problem for the Secretary of State arose in this case because he changed the label and granted an entitlement based on the original claim after the appeal had been commenced. An appeal lies under Section 1 of the Pensions Appeal Tribunals Act 1943 against a rejected claim. By later granting an entitlement based on the original claim but using a different label he made it very difficult for him to argue that there was no disablement and that it was not attributable to service. 16.We made no findings of fact in relation to what Gulf War Syndrome is or what symptoms Mr Rusling had. We decided that it was unnecessary for us to do this because of our findings in relation to disablement and the failure of the Secretary of State to prove beyond reasonable doubt that Gulf War syndrome was not attributable to or aggravated by service. 17.We were concerned that in April 2002 we were hearing an appeal that had been commenced in December 1996. We could not understand how the Secretary of State could consider that he was entitled unilaterally to withdraw Mr Rusling's appeal. The only possible explanation seemed to us to lie in Article 67 Service Pension Order. We were aware of the reference to Article 67 at the topeof page 122 of the Statement of Case, albeit that this related to Mr Rusling's claim for Vaccine Damage. We asked Mrs Ronson to telephone the War Pensions Agency to enquire whether this was the explanation. She did so and told us that Signs, Symptoms and Ill Defined Conditions had been allowed and the appeal withdrawn because of a change of policy. We found that the appeal had not been withdrawn under Article 67. We found that the Secretary of state had no right to withdraw the appeal, that he had done so without Mr Rusling's consent and that Mr Rusling's appeal had thereby been considerably delayed. We did not consider whether this amounted to a breach of the European Convention on Human Rights."

[59]In commenting upon the terms of the Case Stated, Margaret Ronson of the Veterans' Agency, who attended that hearing, confirmed that she stated to the Tribunal that Mr Rusling's claim for Gulf syndrome had been rejected. "In other words, the Secretary of State was not satisfied at that time that Mr Rusling was suffering from a disablement which he described as Gulf syndrome." She explained to the Tribunal that Mr Rusling's case was reviewed in 1997 and as a result it was accepted that he suffered from a disablement, Signs and Symptoms of an Ill Defined Condition, which was accepted as being attributable to service. According to her evidence to this court she did not understand that by reason of the terms of the rejection of the claim in 1994 the Secretary of State was to be taken as having accepted that the Gulf War syndrome existed, and was now to be regarded as having changed his mind in 1997. More particularly she considered that in accepting the condition of SSIDC in 1997, rather than the claimed label of Gulf War syndrome, the Secretary of State had acted to take account of the fact that the use of the label Gulf War syndrome did not reflect contemporary medical understanding. From her account of the hearing she did not understand Section 5B(b) of the 1943 Act prevented the Tribunal from taking into the account the "Review" carried out by the Secretary of State in 1997.

[60]Finally, I should add that Mrs Ronson did not understand that a request made by the Chairman, Mr Stubbs, for a telephone call to be made to the WPA was in connection with a question whether a review under Article 67 had been carried out, but understood it as a request from the Chairman as to what legal authority the WPA had to change a label after an appeal had been lodged. Mrs Ronson nevertheless agrees that when she did return she did make a submission, having seen a loose minute to this effect, that it had been a medical policy decision not to use the label Gulf War syndrome in the light of more knowledge having been acquired regarding Gulf War affairs.

[61]I have set out enough to be able to identify a number of issues which must now be considered. i) Section 5B of the 1943 Act ii) The carrying out of reviews under Article 67 of the SPO. iii) The relevance of the Royston principle to the decision of the Tribunal. iv) What ought properly to have been regarded as in issue on the appeal. v) Can the Tribunal's decision stand ? Section 5B of the 1943 Act

[62]Both Mr Havers and Mr Stilitz advanced submissions in connection with the true meaning and effect of section 5B of the 1943 Act. Mr Havers submitted that the Tribunal's reliance upon the section was misconceived. If it was right, he submitted, it undermined the operation and effect of rule 9(2) of the 1980 Rules. Mr Stilitz advanced submissions to the contrary and sought the Court's guidance upon the current practice adopted by the Tribunal in connection with the section.

[63]There is no conflict between rule 9(2) of the 1980 Rules and section 5B(b). Where notice has been given in accordance with the rule, the Tribunal is required to consider whether the rule has been complied with, and to determine the application then being made for the appeal to be struck out (see above). Section 5B governs the hearing of an appeal, not an application to strike out an appeal under rule 9(2).

[64]The whole of section 5B must be read in order to understand its operation and effect. It creates an obligation upon the parties to an appeal to pay close attention to the need to identify the issues which arise in connection with an appeal. The statutory appeals process under the 1943 Act is directed and governed by the ground or grounds upon which a decision has been based and consideration as to whether the decision was rightly made on that ground or those grounds. (See sections 1,2,5 and 5A). The Tribunal is not concerned to determine an issue unless one of the parties has raised it and it follows that the terms of the decision must be carefully considered in order to identify the issues to which an appeal against the decision properly gives rise.

[65]The grounds for the decision to reject the claim, against which the Respondent, Mr Rusling, appealed, were that his "…disablement is not due to a wound, injury or disease which(a) is attributable to service; or

(b) existed before or arise during service and has been, and remains, aggravated thereby". Further in accordance with the brief reasons given in the letter accompanying the Formal Notice the claim was rejected because: (c)the doctors had "decided that Gulf syndrome, on which your claim is based, is not a condition caused by your service", and "(d) that "when discharged you were not suffering from Gulf syndrome on which your claim is based, and that you are not suffering from it now". In substance the letter did not go much further than the Formal Notice but the precise terms of the rejection are important.

[66]Once he had lodged his appeal it was for the Tribunal to determine whether his claim had been rightly rejected on those grounds. Had the decision been reached because the doctors had decided that Gulf War syndrome did not exist, the Formal Notice would have followed the words of section 1 and been in the same terms as the one he received, but the reasons given in the letter would have been different. The reasons for the decision to reject the claim would have been "you were not suffering from Gulf War syndrome on which your claim is based, and that you are not suffering from it now because Gulf War syndrome is not a recognised medical condition which in the doctors' opinion exists" (or words to such effect). The letter could not sensibly have contained the statements cited from the letter at (c) and (d) in paragraph 65 above if the reason was the condition did not exist.

[67]The subsequent "review" in 1997 and the conclusion reached are consistent with this analysis of the reasons for the 1994 decision. The reason given for the "review" and the conclusion reached was that current medical research supported the conclusion that Gulf War syndrome was not a recognised medical condition. Had that been the reason for rejection in the first place, there would have been no need to "review" the decision.

[68]It follows that by the date of the appeal in 2002 the Secretary of State had decided that he wished to maintain his rejection of the injury on which the claim was based, namely Gulf War syndrome, but on a ground upon which he had not originally rejected it. That course was not open to him in the context of the appeal which had been lodged. It does not matter, for this purpose, whether he is to be taken as having, as a matter of fact, accepted the existence of Gulf War syndrome as a medical condition or whether he is to be regarded as precluded from disputing it. It was capable of being an accepted disablement. According to procedural fairness, it was not open to him to take the point on the appeal and it was not an issue on the appeal. The Tribunal took into account the contents of the letter. Mr Havers criticised this approach. He labelled the decision and the reasons in the letter "ambiguous". Even if ambiguous for the purpose of being evidence of the existence of the condition, the letter unambiguously failed to take issue with its existence. In fairness to Margaret Ronson she sought to overcome the difficulty by reliance upon a review and thus the Tribunal were correct to inquire into whether there had been a review under Article 67 of the 1980 Rules.

[69]I have sympathy with the difficulties which confronted the Tribunal. It was faced with a change of position by the Secretary of State, confusion as to whether there had been a review and the recent introduction of section 5B of the 1943 Act. As a result the appeal against the 1994 decision had to proceed in circumstances where the case for the Secretary of State depended upon an argument which had not been advanced for the decision under appeal. Some consideration had to be given to the question whether there was evidence to support the existence of Gulf War syndrome because that was the only substantive argument which the Secretary of State raised.. But in my judgment no issue arose for the Tribunal to consider whether it existed or not. The claim not having been rejected on the ground that it did not exist and the reasons being given in terms which were consistent with an acceptance that it was capable of being a disablement meant the issue was not before the Tribunal.

[70]The section provides:

"In deciding any appeal, a Pensions Appeal Tribunal – (a) need not consider any issue that is not raised by the appellant or the Minister in relation to the appeal; and (b) shall not take into account any circumstances not obtaining at the time when the decision appealed against was made."

[71]The purpose of the section is to limit consideration on an appeal to an issue between the parties, which arises out of the decision appealed against, by reference to "circumstances obtaining" at the time when the decision was made. "Circumstances obtaining" means more than evidence which was in existence at the time when the decision was made. Circumstances obtain whether or not at the time of the decision there is evidence to establish their existence. The words do involve consideration of the state of affairs existing at the time of the decision. Therefore evidence on appeal should not be excluded if either: (1)it was in existence at the time of the original decision, but was not considered by the Secretary of State; or (2)it came into existence after the original decision, but relates to the state of affairs which existed at the date of that decision.

[72]The true nature of the disablement from which a claimant suffers at the date when the decision is made is a circumstance obtaining at the date of the decision. If medical reports written subsequent to a decision demonstrate that a claimant suffered from a disablement which had not been recognised in the reports available at the date of the decision, the subsequent reports relate to a circumstance "obtaining at the date the decision was made". The position would be different if the subsequent reports were based upon a change in the condition of the claimant, such change being subsequent to the date of the decision, because the change in condition would not have obtained at the date of the decision. This would be particularly relevant in an assessment appeal where changes in condition are likely to occur regularly.

[73]Where circumstances occur after the date of the decision appealed against, the new circumstances should be considered by way of a review under Article 67 of the SPO. The carrying out of reviews under Article 67 of the SPO

[74]Where a review has taken place, the decision should be notified and the ground upon which any part of the claim, as advanced, has been rejected, must be clear.

[75]I agree with the submission for the Secretary of State that where there is an appeal against a rejection of a claim, Article 67(1) of the SPO will be in play if he decides "the issue on the appeal in favour of the appellant". That decision having been made, the Secretary of State is bound to give notice under rule 9(2). But the position will be different if, for example, he has varied his decision (Article 67(5) of the SPO) so as to maintain his rejection of the condition upon which the claim is based for a reason other than the one he originally advanced but accepts the symptoms as disclosing a condition upon which the claim is not based which he accepts give rise to an entitlement. Such a decision should be made by way of review and will give rise to an entitlement on the part of the claimant to appeal so far as any part of his claim remains rejected. In my judgment, however, formulated, a decision by way of review to reject the Respondent's appeal on the ground upon which it had been based, namely Gulf War syndrome, would inevitably have left an issue upon which the Respondent would have been entitled to pursue an appeal. The Tribunal acted correctly in seeking to establish whether not a review under Article 67 of the SPO had taken place and in the light of the letter dated 26 March 1997 and what it was told by Mrs Ronson the Tribunal cannot, in my judgment, be criticised for having concluded that no review had taken place. As I have already stated, there being no appeal against the review decision, no doubt because it had not been recognised one had taken place, the Tribunal could only consider the issues on the original appeal. I am satisfied that the Secretary of State cannot complain about the conclusion which was reached as to whether there had been a review.

[76]Some general points were raised in connection with the exercise of power to review. In the light of the introduction of section 5B into the 1943 Act, recent changes in circumstances will generate a need for review. Where a decision has been reached by way of review of an earlier decision, it is the review decision which will be relevant. It will, for substantive purposes, supercede the original decision. It may even expressly cancel it. The President states:

"….the Tribunal has always taken the view that the Secretary of State must nevertheless establish the existence of proper grounds for the review that he has undertaken"

. I assume he means on an appeal against the review decision.

[77]I suggest a different formulation of the approach to be taken. According to the facts and the two decisions, the grounds for review are likely to be subjected to scrutiny on the appeal. If the review has led to a less favourable decision, an issue on the appeal is likely to be whether the original decision was correct. In that sense the grounds for review may fail to justify the fresh decision. But it is not so much a discrete exercise in examining the legitimacy of a review by reference to the ground upon which it has taken place. It is sufficient if it is regarded as the decision under appeal. The Statement of Case will contain both the original decision and the review decision to enable the issues on the appeal to be identified. The review may have narrowed the dispute whilst adding a fresh issue. For example, in this case, had the matter proceeded properly, attribution and causation in connection with the symptoms would not have been in issue and the appeal against the review would have been limited to the diagnostic label, SSIDC. The relevance of the Royston principle

[78]The use of shorthand references is convenient but can give rise to confusion. The Royston case can be taken to have decided (at least) two points: (1)the existence of a burden of proof on the claimant to establish disablement; and (2)the absence of a burden to establish attribution or causation. I am satisfied that where the Tribunal used the expression "Royston Decision" in its reasons for its decision on the appeal, it did so in the sense of(1) above. Paragraph 7(a) of the Case Stated so expresses it, by reference to the case where the burden is upon the claimant to establish that "he is suffering or has ever suffered from a claimed disablement". Mr Havers submitted that the Tribunal fell into error because it had concluded, "that the Secretary of State has failed to show beyond reasonable doubt that Gulf War Syndrome is not attributable to Mr Rusling's service." This was as a result of applying the "Royston Decision" in the sense of (1) above to the disablement and in the sense of

(2) above to the issue of attribution. In paragraph 8 of the Case Stated the Tribunal states how it reached its conclusion on the existence of Gulf War syndrome. It approached the question on the basis that it was for the appellant to establish the claimed disablement (see para 7(a)) and concluded that on the material before it, Gulf War syndrome was a condition capable of being a disablement. In paragraph 16 of the Case Stated the limits of the inquiry it conducted are clear.

[79]Paragraph 16 states:

"We made no findings of fact in relation to what Gulf War syndrome is or what symptoms Mr Rusling had."

On a proper analysis of the reasoning the Tribunal reached its decision by the following steps. (1) It found that Gulf War syndrome was a condition capable of being a disablement because Mrs Roskell's letter implicitly stated that it was. (2)It noted that the claim had not been rejected on the ground set out in the Further Medical Opinions (See Reserved Decision). (3)Although the Further Medical Opinions rejected Gulf War syndrome as a single disease entity they did not state the appellant was not suffering from a disablement ("the Royston Decision"). (4)It was precluded from taking into account the acceptance of SSIDC because of Section 5B(b) of the 1943 Act. (5)In the circumstances where the Secretary of State was accepting a disablement and attribution there was no reasonable doubt that Mr Rusling's claimed disablement, Gulf War syndrome, was attributable to service. The standard of proof was being applied to the issue of attribution not to the issue of disablement. What ought to have been regarded as arising on the appeal?

[80]For reasons which will be apparent from earlier paragraphs of this judgment the Tribunal was concerned with the appeal against the 1994 decision. The Tribunal were correct to conclude that there is no basis in law which entitles the Secretary of State to withdraw "the appeal by replacing a rejected condition with an accepted one" (See Reserved Decision of the Tribunal). The grounds for rejection of the claim which were in issue on the appeal were the original grounds and not the subsequent ground upon which the Secretary of State sought to maintain his continued rejection of Gulf War syndrome. Can the Tribunal's decision stand?

[81]Since the Secretary of State had not rejected the claim based on Gulf War syndrome on the ground that the overall medical evidence did not "support the existence of a single disease entity, Gulf War syndrome", there was no issue on the appeal in that regard. The Tribunal has been careful to express its conclusion as being that the condition "was capable of being an accepted disablement" (see Reserved Decision and the Case Stated). I cannot see any basis for the Secretary of State to complain about that since he had accepted it as capable of being a disablement by the terms of his own decision in 1994. The argument advanced for the Secretary of State no longer sought to uphold the rejection of the case for a disablement, nor its attribution to military service. As a result the claimant was entitled to succeed. That said, it is not a decision which determines the existence or non-existence of Gulf War syndrome as a "single disease entity". The conclusion arises by default, not as a result of consideration of the merits.

[82]It follows that no ground existed for the Tribunal to decline jurisdiction or to stay its hand and to refuse to continue with the appeal. In the particular circumstances of this case it would have been wrong for it to have done so. Nor can I find any basis upon which the Tribunal's decision can be legally impugned. WIDER CONSIDERATIONS

[83]Claimants for disablement arising from an injury attributable to service in the Gulf should receive a pension which is based upon a correct diagnosis of the injury. This court is not in a position to express any view on the merits of the dispute as to whether, according to current medical research, Gulf War syndrome is or is not a "single disease entity". It has not done so by this judgment. But a claimant who bases his claim for entitlement on the condition will carry the onus proving its existence on the balance of probabilities. That onus should not be undertaken lightly and without evidence to support it. It can be anticipated that a claim so made will be rejected by the Secretary of State and after notice of appeal, reviewed according to the symptoms which the claimant has manifested or disclosed. Those advising a claimant should weigh the advantages and disadvantages of becoming involved in an appeal. This consideration should be given by reference to the quality of the evidence which can be adduced and the interests of a claimant in seeking to establish the existence of Gulf War syndrome. Each case will depend upon its own facts. Each claimant should have his own opportunity of weighing what may be a short route to entitlement, assuming SSIDC to be accepted, and a longer route carrying with it uncertainty. The decision should be the claimant's, uninfluenced by pressure from others desirous of achieving a collateral purpose. The Tribunal exists to resolve disputes touching the interests of the parties, not wider interests.

[84]As I observed when stating my conclusions on the interpretation issue, Mr Lewis drew the court's attention to cases where it has been held that a court is not there to resolve a legal conundrum which cannot affect the position of the parties (See Sun Life Assurance Company of Canada v Jervis [ 1944] AC 111: Ainsbury v Millington [1987] (1 WLR 379). The point arose where there was a discretion as to whether to consider an appeal, not as here, a statutory right to appeal. Short of a plain abuse of the appeal process a right of appeal in connection with a diagnostic label exists because both parties have an interest in the diagnosis being correct. Certainly no question of abuse arises in connection with the claim by Mr Rusling. It is recorded that he would have preferred to have left the appeal on the file pending developments in medical research. Other claimants may take the same view when deciding the basis upon which their claims should be advanced.

Secretary of State for Defence v Shaun Francis Rusling [2003] EWHC 1359 (QB)

The President of the Tribunal states in his evidence:

Cited in 5 later judgments