PM v Secretary of State for Defence (AFCS) (Tribunal procedure and practice (including UT) : tribunal practice) [2015] UKUT 647 (AAC)
UKUT-AAC
PM v Secretary of State for Defence (AFCS) (Tribunal procedure and practice (including UT) : tribunal practice)
[2015] UKUT 647 (AAC) · 2015-11-23
[15]“The real difficulty is where to draw the line. Mr Pascall, on behalf of the appellants, does not contend for a general discretion to extend time. Parliament is used to providing such discretions, often circumscribed by conditions (see, for example Employment Rights Act 1996, section 111(2), in relation to unfair dismissal). The omission to do so on this occasion was no doubt deliberate. If Article 6 and section 3 of the Human Rights Act require Article 29(10) of the Order to be read down, it must be to the minimum extent necessary to secure ECHR compliance. In my judgment, this requires adoption of the same approach as that of Lord Mance in Pomiechowski . A discretion must only arise "in exceptional circumstances" and where the appellant "personally has done all he can to bring [the appeal] timeously" (paragraph 39). I do not believe that the discretion would arise save in a very small number of cases. Courts are experienced in exercising discretion on a basis of exceptionality. See, for example, the strictness with which the discretion is approached in relation to the 42 day time limit and the discretion to extend in connection with appeals from Employment Tribunals to the Employment Appeal Tribunal: United Arab Emirates v Abdelghafar [1995] ICR 65 ; Jurkowska v HLMAD Ltd [2008] EWCA Civ 231 .” The Secretary of State also refers to Heron Brothers Ltd v Central Bedfordshire Council [2015] UKHC 604 (TCC); [2015] PTSR 1146 , in which the approach taken in Pomiechowski and Adesina was applied and the strictness of the approach was emphasised. 6. Nonetheless, in the light of those authorities, the Secretary of State concedes that the First-tier Tribunal erred in law in the present case because it did not consider whether, in the light of the claimant’s mental illness, it would be a breach of Article 6 of the European Convention on Human Rights not to extend the time for appealing and determine his appeal. I accept that concession, which I consider has been rightly made in view of the information that was before the First-tier Tribunal. 7. The Secretary of State also invites the Upper Tribunal to remit the case to the First-tier Tribunal and to direct the claimant to make a submission addressing the test laid down in Pomiechowski and Adesina and the Secretary of State to respond to it. I am not entirely sure why he considers that the case should be remitted rather than that the Upper Tribunal should re-make the decision under section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007 but I am content to accept the suggestion, on which the claimant has not commented. However in those circumstances, I consider it preferable, and probably less confusing for the claimant, to leave the First-tier Tribunal to issue such directions as may be necessary. 8. Finally, when giving permission to appeal, I said – “I would also welcome the Secretary of State’s observations as to what course of action the claimant can take if his current condition would have warranted an award above tariff level 11 but his appeal is too late. Article 56(6) of the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011 (SI 2011/517) provides that the Secretary of State “is to review an injury benefit decision under this article on one occasion only”. That raises the question whether, when an award of injury benefit is revised under article 56(2)(b), a new “injury benefit decision” is made. If a new “injury benefit decision” is made, then presumably article 56(6) does not prevent the claimant from seeking another review now. If a new “injury benefit decision” is no t made, the 10 year threshold for applying for a review under article 57 presumably runs from the date of the initial award so that the claimant in this case could apply for a review on or after 5 February 2018. Which approach does the Secretary of State consider to be right?” 9. The Secretary of State has indicated that his view is that the claimant would need to wait until 26 August 2019 before applying for a review under article 57, because the definition of “injury benefit decision” in article 55(10) must be read in the light of article 54(3)(c), so that, in his view, it “includes a decision revised on exceptional review under article 56” and the time for applying for a final review runs from the date of the decision made on review. He thus does not accept either of the alternatives I suggested. 10. However, he correctly points out that this issue is not before me for determination and I will therefore merely observe that it seems to me that the language of articles 54(3), 55(10) and 56(6) currently leaves room for argument as to the correct approach. The Secretary of State may wish to consider amending the legislation so as to make the position clearer. He may anyway wish to consider whether the legislation in respect of reviews achieves the best balance between the desirability of finality and the desirability of achieving at as early a date as practicable what is objectively the “right” decision in cases where there have been complications, but that is a matter for him as legislator rather than for this or any other tribunal. Meanwhile, if the claimant’s appeal to the First-tier Tribunal is held to be irredeemably out of time and he wishes to apply for a review, his advisors will no doubt advise him as to when, in their view, he may do so. Mark Rowland 23 November 2015