CT [2009] UKUT 167 (AAC)

UKUT-AAC
CT
[2009] UKUT 167 (AAC) · 2009-09-01
[1]Decision of the Upper Tribunal (Administrative Appeals Chamber) This decision is given under section 11 of the Tribunals, Courts and Enforcement Act 2007: The decision of the First-tier Tribunal under reference ASS/00667/2008, held on 12 November 2008, did not involve the making of an error on a point of law. Reasons for Decision This was the first appeal to come before the Upper Tribunal in respect of an assessment of disablement under the , Military and Air Forces etc. (Disablement and Death) Service Pensions Order 2006 (SI No 606), which I will call the 2006 Order. It specifically concerns the adequacy of reasons for an assessment, but that cannot be entirely separated from the nature of disablement and the process of assessment. A. History and background[2]The claimant was born on 13 October 1946 and served in the RAF from 1967 to 1993. He claimed a pension under the 2006 Order in 1996. The following conditions have been accepted as due to his service:(1) head injury;(2) polyarthralgia;(3) left tennis elbow;(4) hay fever;(5) asthma;(6) nasopharyngeal cyst;(7) benign positional vertigo;(8) left inguinal hernia; and(9) lumbar spondylosis. I have adopted the tribunal's numbering for ease of reference later.[3]This case arises from the acceptance of the left inguinal hernia as due to service. The claimant applied for this condition to be accepted in 1997, but it was not accepted until 2008. I do not need to explain why it took that long. By that time, the claimant's disablement for the other conditions had been assessed at 30%. The Secretary of State then had to assess the claimant's disablement. A doctor was asked to examine the claimant and advise on the disablement attributable to this condition only. The advice was that no functional impairment was expected. Accordingly, no change was made to the existing assessment of 30%.[4]The claimant exercised his right of appeal. By the time his appeal was heard, the jurisdiction in war pensions appeals had been transferred from the Pensions Appeal Tribunal to the First-tier Tribunal and assigned to the War Pensions and Armed Forces Compensation Chamber. At the same time, onward appeals in respect of assessment decisions were transferred from the High Court to the Upper Tribunal and assigned to the Administrative Appeals Chamber. None of that has affected the principles that apply in this case. B. The appeal to the First-tier Tribunal[5]As the claimant's assessment was an interim one, his appeal lay under section 5(1) of the Pensions Appeal Tribunal Act 1943 and the tribunal's powers were limited by paragraphs (a) and (b) of that subsection. The current version provides:
'5 Appeals against assessment of extent of disablement (1) Where, in the case of any such claim as is referred to in section one, section two or section three of this Act in respect of the disablement of any person, the Minister makes an interim assessment of the degree of the disablement, he shall notify the claimant thereof and an appeal shall lie to the appropriate tribunal from the interim assessment and from any subsequent interim assessment, and the appropriate tribunal on any such appeal may uphold the Minister's assessment or may alter the assessment in one or both of the following ways, namely- (a) by increasing or reducing the degree of disablement it specifies; and (b) by reducing the period for which the assessment is to be in force. In this section the expression "interim assessment" means any assessment other than such a final assessment as is referred to in the next following subsection.'
[6]The claimant was represented at the hearing by the Royal British Legion. His representative accepted that there had been no significant change to conditions 2, 6 and 9, so that the tribunal could rely for these conditions on the report of the medical board in 2001. The record of proceedings shows that the tribunal then took the claimant methodically through the other conditions, during which he was questioned by members of the tribunal and his representative.[7]The tribunal confirmed the 30% assessment. The reasons provided by the presiding judge follow the pattern of the hearing. The main findings were:• The head injury causes headaches of 3 or 4 hours duration, 4 or 5 times a week, and are relieved by over-the-counter medication. The tribunal included blurring of vision in its assessment, although it suspected that this was not due to service.[8]The left tennis elbow affects the claimant's non-dominant arm and restricts his ability to lift, carry, type, and hold paper when writing. He uses anti-inflammatory cream.[9]Hay fever lasts for 4 or 5 months, causing breathless. This requires medication and the claimant has to stay inside with the windows shut.[10]Asthma is triggered by stress. In winter, he has 4 or 5 attacks, each lasting between 30 minutes and an hour. In summer, he feels chesty every day. He requires antibiotics for a chest infection once a year.[11]Vertigo makes the claimant feel unsteady and as if he is going to fall, although he does not actually fall. It occurs especially when he moves his head suddenly. He uses a stick or other support. The attacks occur every week or so and never last more than an hour. There is no medication for this.[12]The hernia occurs 4 or 5 times a day when using the toilet and on lifting and bending. He is able to massage it back into place, but is left with an ache in the groin. He cannot lift his grandchildren, but can lift a couple of light bags. The claimant assessed the headaches as the worst condition, followed by the hernia and the vertigo. C. The appeal to the Upper Tribunal[13]I gave the claimant permission to appeal to the Upper Tribunal under section 11 of the Tribunals, Courts and Enforcement Act 2007. directed an oral hearing of the appeal, which took place on 25 August 2009 at the Upper Tribunal's court in London. The claimant attended and was represented by Glyn Tucker of the Royal British Legion. The Secretary of State was represented by Steven Kovats of counsel, instructed by the Treasury Solicitor. I am grateful to both representatives for their written and oral argument. I am also grateful, as I told them at the hearing, for the economical way in which they presented relevant statutory material and authorities. All too often the Upper Tribunal is presented with a large bundle of material and authorities, to be referred only to a few pages. That is wasteful of both time and resources. The way that Mr Tucker and Mr Kovats presented their cases shows what can be done with selective quotations in written argument and discriminating selection of material and authorities. D. Legislation on disablement[14]The assessment of disablement and the significance of that assessment is determined by the 2006 Order.[15]A claimant's award depends on the degree of disablement due to service. If it is less than 20%, a gratuity is payable (article 7). If it is 20% or more, retired pay or pension is payable according to the degree of disablement (article 6).[16]The degree of assessment is determined under article . I have omitted the provisions relating to noise-induced hearing loss:
'42 Determination of degree of disablement (1) The following provisions of this article shall apply for the purposes of the assessment of the degree of the disablement of a member of the armed forces due to service before 6th April 2005. (2) Subject to the following provisions of this article- (a) the degree of the disablement due to service of a member of the armed forces shall be assessed by making a comparison between the condition of the member as so disabled and the condition of a normal healthy person of the same age and sex, without taking into account the earning capacity of the member in his disabled condition in his own or any other specific trade or occupation, and without taking into account the effect of any individual factors or extraneous circumstances; (b) for the purpose of assessing the degree of disablement due to an injury which existed before or arose during service and has been and remains aggravated thereby- (i) in assessing the degree of disablement existing at the date of the termination of the service of the member, account shall be taken of the total disablement due to that injury and existing at that date, and (ii) in assessing the degree of disablement existing at any date subsequent to the date of the termination of his service, any increase in the degree of disablement which has occurred since the said date of termination shall only be taken into account in so far as that increase is due to the aggravation by service of that injury; (c) where such disablement is due to more than one injury, a composite assessment of the degree of disablement shall be made by reference to the combined effect of all such injuries; (d) the degree of disablement shall be assessed on an interim basis unless the member's condition permits a final assessment of the extent, if any, of that disablement. (5) The degree of disablement assessed under the foregoing provisions of this article shall be certified by way of a percentage, total disablement being represented by 100 per cent (which shall be the maximum assessment) and a lesser degree being represented by such percentage as bears to 100 per cent the same proportion as the lesser degree of disablement bears to total disablement, so however that a degree of disablement of 20 per cent or more shall be certified at a percentage which is a multiple of 10, and a degree of disablement which is less than 20 per cent shall, except in a case to which Table 1 of Part III of Schedule 1 applies, be certified in a manner suitable for the purposes of Table 2 of Part III of that Schedule. (6) Where a disablement is due to an injury specified in Part V of Schedule 1 or is a disablement so specified, and, in either case, has reached a settled condition, the degree of that disablement shall, in the absence of any special features, be certified for the purposes of this article at the percentage specified in that Part as appropriate to that injury or to that disablement. (13) Where- (a) a member has sustained a minor injury specified in Table 1 of Part III of Schedule 1 as well as some other disablement due to service the degree of which is less than 100 per cent; and (b) a composite assessment of the degree of the disablement from both causes is no higher than the assessment for the other disablement alone this article shall have effect so as to authorise an award under article 7 in respect of the minor injury as well as an award under article 6 or 7 in respect of the other disablement. (14) The degree of disablement certified under this article shall be the degree of disablement for the purposes of any award made under this Order.'
[17]It will be helpful to my analysis if I quote some of the assessments in Part V of Schedule 1 to the 2006[18]Before coming to the standard of reasons that a tribunal must give to explain an assessment of disablement, it is necessary to look at what disablement means and how a percentage assessment is made. The identification of the disablement is essential to an assessment of the disablement and both must be embodied in the reasons.[19]The tribunal must identify the claimant's disablement, not just the condition or the injury.[20]The 2006 Order does not contain a definition of disablement. I am not going to provide one. Any attempt at a definition will inevitably be affected by the facts of a particular case and the formulation will probably then cause problems for other cases with very different facts. I will limit myself to what is necessary for this case.[21]Article 42 distinguishes between the condition or injury and its consequences. The latter is the disablement. In some cases, the distinction is easy to draw: the loss of a leg is a condition or injury and the restriction on the claimant's ability to stand, walk and climb are disablements. In other cases, it is less easy to draw. Disfigurement is a condition or injury. It gives rise to a disablement – see Schedule 1. But is it also of itself a disablement? If not, what is the disablement? The Committee on the Assessment of Disablement, which reported in 1964, identified the disablement in the interference 'with the capacity to enjoy a normally occupied life to a very serious extent' (paragraph 44).[22]Schedule 1 gives some useful indications on the nature and scope of disablement. It is not limited to cases in which the claimant is completely unable to function in a particular respect. It includes as well cases in which the claimant's ability to function in a particular respect is limited or restricted. For example: the claimant may be able to walk, but only short distances or at a reduced speed.[23]Disablement may also include cases in which the claimant remains able to function without restriction or limitation, but not in the way that a 'normal healthy person of the same age and sex' would. This is not limited to the impact of a condition or injury on the claimant's ability to perform the normal activities of everyday life, but can include their feelings and reactions to domestic, social and leisure situations. Schedule 1 again provides a useful illustration. It distinguishes between loss of an eye (40%) and loss of vision in one eye without disfigurement (30%). That shows that loss of function is not the sole criterion. The loss of the eye even without disfigurement is, or gives rise to, a disablement in addition to the functional loss. Pain is another example: a claimant may be able to walk at a normal speed for normal distances, but only while experiencing discomfort or pain. That may be a disablement, depending on matters such as the frequency, duration and severity of the pain. This is particularly relevant in this case, because the claimant's disablement in part involves the experience of pain (headaches) as a result of his head injury and aches as a result of his hernia. Remember that he assessed the headaches as his worst condition. F. Assessing disablement[24]The tribunal must assess the claimant's disablement, not the condition or the injury.[25]If there is more than one injury, it must make a composite assessment (article 42(2)(c)). In doing so, it may find it useful, even perhaps necessary, to make individual assessments of different disablements as part of the process of determining the claimant's overall disablement. That will depend in part on the nature of the disablement. For example: if all the claimant's injuries affect his mobility, it would be pointless to try to identify the contribution of each injury. But if the claimant has a variety of disablements affecting various aspects of physical and mental functioning, it may be helpful to consider them separately before making a composite assessment. The way in which the tribunal has approached the assessment will affect the reasons that it is able to give.[26]Disablement can only be identified by comparison with 'the condition of a normal healthy person of the same age and sex' (article 42(2)(a)). The tribunal must make findings of fact on the claimant's disablement that are sufficient to allow it to apply that test. It must identify the different types of disablement and make findings on their nature, severity and extent. If there is variation, it must make findings on frequency and range of the variation. If there is medication or other treatment, the tribunal must find what effect that has. Treatment may be relevant in three ways. It may alleviate the disablement. It may produce side-effects. And it may itself be a disablement. For example: the need to rely on regular medication may have a mental effect.[27]Having made its findings its findings on disablement and undertaken the comparison, the tribunal has to translate the comparison into a percentage. Article 42(5) provides that 100% represents total disablement. However, that does not mean that 100% is the assessment only for a claimant who is wholly unable to function in any respect whatsoever. The assessments in Schedule 5 show that that is not correct. An assessment of 100% is appropriate for someone who may have a considerable degree of function. The result is that the assessment is based on a conventional scale that can only be fixed by reference in general terms to the assessments given in the Schedule. They give an indication of the level of disablement appropriate for different percentages.[28]It may also be helpful, at least as a check on the assessment that is made, to have regard to particular assessments in Schedule 1. In this case, the claimant has complained of a remark by the tribunal judge about 40% being for an amputation. I do not have a transcript of what was said, but I am sure that the judge was attempting to make such a comparison.[29]The making of an assessment cannot be done with precision and does not have to be. For assessments over 20%, it is only necessary to assess within 10% bands (article 42(5)). Even choosing between those bands involves deciding in relatively broad terms. And the assessment may involve an element of impression. However, the tribunal must avoid the temptation to decide solely on its impression without appropriate findings of fact and analysis of all relevant aspects of the claimant's disablement. It must approach its task methodically and in a structured way. If it does not, the presiding judge will not be able to provide adequate reasons to explain how and why the tribunal made its decision. G. Adequacy of reasons[30]An assessment of disablement is a judicial decision. As such, a tribunal must have reasons for making the assessment. If it does not, its decision is arbitrary, which is contrary to the nature of a judicial decision. Since the reasons are integral to the decision-making, it should be easy to give adequate reasons, provided that the tribunal made its decision correctly. The presiding judge then need only record what has been done. That is why I have devoted some time to dealing with the nature of disablement and its assessment.[31]The giving of reasons is not governed by the Tribunal Procedure (War Pensions and Armed Forces Compensation Chamber) Rules 2008 (SI No 2686). Rule 32 provides the manner in which the power to give reasons may be exercised and when a tribunal is under a duty to give reasons. It neither imposes a duty to give reasons in every case nor restricts the tribunal's power to give reasons whenever it wishes to do so. And it does not stipulate the standard that they must attain when they are given. That standard is set by the general public law.[32]The law could not, and does not, require that the reasons given by a tribunal must be perfect. That would be impossible to attain. But nor can it be left to the individual tribunal to decide for itself what reasons it will give. That would prevent any challenge. The law has inevitably adopted a course between these two extremes and imposed a test of adequacy. That is a functional test, because adequacy presupposes some purpose or purposes against which the adequacy may be judged.[33]Reasons are for the benefit of the parties, so that they may know why the tribunal decided as it did and whether it acted properly within the law, and for benefit of the Upper Tribunal, so that it may decide on appeal whether the tribunal's decision involved the making of an error on a point of law for the purposes of section 12 of the Tribunals, Courts and Enforcement Act 2007. The reference to the benefit of the parties must not be interpreted literally. Tribunals must make assumptions about the parties' knowledge and understanding. Otherwise, they would for example have to explain everything about legal reasoning and the status of legislation and precedent for the benefits of any party who was not familiar these matters.[34]The law may be summed up in this single proposition: the reasons must be sufficient to show how and why the tribunal made the decision that it did and that, in doing so, it acted within the law. Anything else concerns the application of the standard in a particular case. Representatives may attempt to present particular features as requirements in a particular case. They may well be able to cite authority in support of their argument. But on analysis the authority will always involve merely an application of the basic proposition in the circumstances of a particular case. For example: it is often said that a tribunal must deal with the arguments put by the parties. However, in practice that is only required as part of the tribunal's explanation for making the decision it did rather than the one sought. H. Adequacy of reasons in an assessment appeal[35]The tribunal must show, by its words or its actions, that it has applied the correct legal criteria, specifically article 42(2)(a). There is no need to set it out verbatim. Nor is it sufficient merely to rely on this, or any other, formula. The reasons as a whole must show that the tribunal directed itself correctly on the law.[36]The reasons must record must findings on all relevant matters in dispute. They must be sufficient to identify the full nature of the disablement that the tribunal has taken into account. If the tribunal has rejected evidence, it must be clear why. It may be self-evident that particular evidence was irrelevant or unreliable, but it is always good practice to deal with it expressly. Failure to do so all too often leaves the claimant dissatisfied and generates unnecessary applications for permission.[37]Mr Kovats argued that the tribunal had only to make findings on the claimant's disablement. It is correct that it must do that, but I do not understand how in practice it can do that without identifying the component parts. Still less do I understand how it can give reasons to show that it has properly applied article 42 without doing so.[38]It is impossible to explain percentage assessments with precision. They involve, as I have said, a degree of impression. But it will usually be possible to give some explanation, albeit in general terms. In some cases, the facts will speak for themselves and it will not be necessary as a matter of law to say more. For example: a claimant who experiences only occasional and very mild symptoms of stress that have no impact whatever on everyday life cannot expect an assessment of more than a few percent. It may, though, be helpful to the claimant, and avoid an application for permission to appeal, to point out the significant feature of the disablement that it has only a very limited impact on the claimant's ability to function. In other cases, it may be helpful to balance the claimant's disablement against the positive aspects of the claimant's life, pointing out the aspects that are close or equivalent to those of 'a normal healthy person'. And in other cases, it may be appropriate to draw attention to the limitations or restrictions that even 'a normal healthy person' would be likely to experience at the claimant's age.[39]Consistency is obviously desirable. But each assessment must be made on the basis of the tribunal's assessment of the evidence before it. That may lead to reductions in assessments when the claimant believes that nothing has changed or only for the worse. The tribunal has to explain why it has made that decision. The explanation must meet the arguments put to the tribunal. If the claimant has argued that the disablement has not changed, the tribunal's reasons must be sufficient to justify its assessment. That may require some explanation of why the assessment has changed: R(M) 1/96 at [15]. However, the scope for this is limited. Given the 10% bands in which assessments over 20% are made, a tribunal will not know with precision what the previous assessment was. It is only in the clearest cases, such as a reduction from 60% to 20% without any change in the relevant facts (to take an obvious example), that the sort of explanation envisaged by R(M) 1/96 will be possible. I. Were the tribunal's reasons adequate?[40]Yes.[41]It is clear from the record of proceedings and the reasons, whether taken individually or collectively, that the tribunal approached the case in a methodical and structured way. That structure shows that the tribunal correctly directed itself on the law. It made findings of fact on all matters relevant to the conditions that were in dispute. It was entitled to accept the concessions that the disablement attributable to three conditions remained as in the report of the medical board. The presiding judge did not attempt any explanation, however broad, of the 30%. However, the clear findings speak for themselves. All of the disablements are relatively mild, some are only intermittent, and most are more of a nuisance that a major impact on the claimant's life. Even taking their cumulative effect into account, an assessment of 30% was the maximum that could be justified. The tribunal also had the benefit of the claimant's own evidence that the disablement from the head injury was the worst. That provided a scale for the assessment of the other disablement. The head injury only causes a short-term headache on most days of the week that is susceptible to over-the-counter medication and some blurred vision. With those relatively mild disablements as the worst, the addition of the others would not allow a higher assessment than 30%. The judge could have commented on the disablements, as I have done, but that was not necessary as a matter of law. All I have done is to spell out what is in the findings anyway.[42]With those reasons, I can explain briefly why I did not accept Mr Tucker's arguments and accepted Mr Kovats'.• As to the three conditions on which the tribunal did not make findings, the representative at the hearing had conceded that they were as in the 2001 report. The tribunal did not need to repeat the contents of that report. Mr Tucker argued that it was not possible to identify disablement from that report. I do not agree. The report contains detailed questions on specific relevant disablements.[43]As to whether the claimant was aware that all the conditions were being considered and not just the hernia, the tribunal had to make a composite assessment and could not have dealt just with the hernia. The Royal British Legion is a specialist representative organisation in war pension cases and must surely have known that. Nor do I understand how either the claimant or his representative could have believed that the tribunal was only considering his hernia in view of the way that the hearing was conducted. It would be helpful, if the Secretary of State were to include a statement in the standard submission to the First-tier Tribunal in an assessment appeal to the effect that all conditions will be considered and that assessments may be increased or reduced. That would be helpful to claimants who are not represented and avoid any need for misunderstanding in the future.[44]As to the reference to amputations and 40%, this was a comment at the hearing and did not form part of the tribunal's reasons. Even if it had, it was a permissible comparison. J. Supplementing reasons[45]There is a well established jurisprudence on the power to provide supplementary reasons. Courts and tribunals have power to ask for these ( English v Emery Reimbold & Strick Ltd [2002] 1 WLR 2409 at [25]) and parties have been encouraged to do so before applying for permission to appeal ( In re A (a child) (Duty to seek reasons) The Times October 16, 2007). Rule 5(3)(n) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI No 2698) also contains an express power:
'(3) In particular, and without restricting the general powers in paragraphs (1) and (2), the Upper Tribunal may- … (n) require any other tribunal whose decision is the subject of proceedings before the Upper Tribunal to provide reasons for the decision, or other information or documents in relation to the decision or the proceedings in that tribunal.'
[46]As I have decided that the tribunal's reasons are adequate, this matter does not arise. However, I will comment briefly on Mr Kovats' argument.[47]Mr Kovats argued that if the reasons were inadequate, the proper course was to invite the tribunal to supplement its reasons rather than to direct a rehearing. He argued that this would be appropriate in order to allow a tribunal to complete its reasons, but not for it to correct them.[48]That is within the literal scope of rule 5(3)(n), but it is further than the caselaw has gone. The power may be appropriate at the application stage in order to avoid the need for an appeal. However, the passage of time that will have occurred before the Upper Tribunal decides that the reasons are inadequate as they stand would make it difficult for the First-tier Tribunal to provide further reasons. If the tribunal's recollection would not be reliable, supplementary reasons should not be sought: Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377 at 383. K. Disposal[49]I dismiss the appeal. Signed on original on 1 September 2009 Edward Jacobs Upper Tribunal Judge

Order

Loss of both hands or amputation at higher sites 100% Amputation below knee with stump exceeding 13 centimetres 40% Loss of one eye, without complications, the other being normal 40% Loss of vision of one eye, without complications or disfigurement of the eye-ball, the other being normal 30% Very severe facial disfigurement 100% E. The nature of disablement

Cited in 5 later judgments