Secretary of State for Defence, R (on the application of) v Pensions Appeal Tribunal & Anor

J U D G M E N T

1. MR JUSTICE NEWMAN: This is an application for judicial review pursuant to permission which I granted earlier this year.

2. The Secretary of State for Defence applies for judicial review in connection with a decision of the Pensions Appeal Tribunal, which granted an extension of time for permission to appeal to Mr Thomas Lynch, the interested party.

3. Mr Lynch served in the army as a national serviceman from 24th August 1950 until 7th September 1952. On 27th January 1992 the Veterans Agency, acting on behalf of the Ministry, received a request from the interested party for a claim form, which was sent to him. He signed the form on 12th February 1992 and he made a claim for deafness.

4. On 2nd June 1992 he attended an audiologist for a hearing test, and as a result there was a report. The conclusion of this report was:

"Hears better than pure tone Audiogram suggests.

Recommend Evoked Response Audiometry. In view of a pre-service history of significant levels of noise exposure and a medical board at service release showing that his hearing was then clinically normal, his claim was rejected under the label 'bilateral sensorineural hearing loss'."

5. Mr Lynch was advised by a letter dated 27th October that his claim had been rejected and also of his right of appeal against that decision.

6. As best the court can tell, he was sent a booklet which then reflected the law in this regard. Under the relevant section of the booklet, he would have read:

"You can make an entitlement appeal at any time, but:

• if you appeal within three months from the date on the letter which comes with this leaflet, we will pay any change in your pension from the date you first asked us to look at your claim.

• if you appeal after three months from the date on the letter we will only be able to pay any change in your pension from the date you wrote asking for an appeal."

7. This correctly reflected the law because, more precisely, section 8 of the Pensions Appeal Tribunals Act 1943 provided at that time that an appeal concerning an entitlement to a war pension under section 1 of the Act could not be made later than 12 months after the decision it was sought to challenge, if such decision was before a date as appointed by order of the Minister. The Minister had made no such order. This meant that there was no time limit for an entitlement appeal, although time limits did apply to other types of appeal.

8. Section 8 as originally drafted provided that the Tribunal had a discretion to allow an appeal out of time if there was a "reasonable excuse" for the delay, but that provision could not operate in respect of an entitlement appeal for the reason that I have stated.

9. Section 8 of the 1943 Act was amended by section 58 of the Child Support, Pensions and Social Security Act 2000. It introduced a time within which an entitlement appeal was to be made. This time limit was six months. However, in respect of an appeal against a decision on entitlement made before 9th April 2001, such as the decision in relation to Mr Lynch, the appeal had to be brought not later than 12 months after that date; that is, by 9th April 2002. Thus it was that a time limit was introduced for the first time for an entitlement appeal.

10. The Tribunal's decision in respect of which judicial review is sought was drawn up, as is common, on a pro forma and it recorded that the Tribunal's decision was to allow the appeal to be brought. Then in its material part the form had:

"The grounds of the Tribunal's decision are that:"

Then there was a box against which the words appear:

"The circumstances put in by the application do/do not establish a reasonable excuse for the whole period of delay"

and a second box simply with the word "Other" against it.

11. The decision made by the Tribunal was that the circumstances put in by Mr Lynch's application did establish a reasonable excuse for the whole period of delay. The whole period of delay was in this case the period of time between 9th April 2002, when the time limit expired, and 23rd September 2002 when he made his application.

12. In his application Mr Lynch stated:

"I think the decision is wrong for the following reasons [that is the original decision to refuse him entitlement]:

My hearing is getting worse, my wife says she has to shout at me to take any notice, the reason I am late at appealing is my wife was bad in the year 2000, the reason for my lateness was the time decision."

13. The effect of section 58 and section 85 of the Child Support, Pensions and Social Security Act 2000 which brought about a change was to remove the reasonable excuse test before determining whether time should be extended for late appeals and, as will be apparent from what I have already said, set a test for late appeals in connection with entitlement appeals. From 9th April 2001, late appeals, including entitlement appeals, were to be determined in accordance with the Pensions Appeal Tribunals (Late Appeals) Regulations 2001, SI 2001/1032. So far as is relevant these regulations provide:

"Provision for late appeals

3. The Tribunal may, in the circumstances prescribed in regulation 4, allow an appeal to be brought not later than twelve months after the expiry of the time limit.

Prescribed circumstances

4. The prescribed circumstances are as follows:

(a) where the main cause of non-compliance with the time limit was-

(i) the death or serious illness of the claimant or a spouse or dependant of the claimant;

(ii) the disruption of normal postal services;

(iii) failure on the part of the Secretary of State to notify the claimant of the decision; or

(iv) exceptional circumstances applying to the claimant which rendered it impracticable for the claimant to bring the appeal or to instruct another person to bring it;

and

(b) the appeal was in any event brought as soon as was reasonably practicable in the circumstances of the case."

14. That is manifestly a different test to the one which was applied by the Tribunal. It directs attention to a number of specific matters which the legislature has regarded as relevant to be taken into account when late appeals are brought and gives rise, as the Tribunal would no doubt recognise, to some detail or at least some facts being put forward to the Tribunal for it to assess what the decision should be.

15. As is of course common and familiar to the Tribunal, people like Mr Lynch, acting on their own, will no doubt from time to time require some form of drawing out as to the details of the matters that they might wish to place before the Tribunal. Of course, again as the Tribunal is well experienced in doing, it will be able at least to give an opportunity to individuals to explain the basis upon which they say they should be granted an extension of time.

16. In this instance, though entirely a matter for the Tribunal, it may be thought that Mr Lynch has something more to say than that which he has said, and that which he has said is plainly not much assistance to the Tribunal in applying the new test, if I may call it such.

17. Be that as it may, I am satisfied, on the review of the law which Mr Morton has very thoroughly and carefully drawn to the attention of the court, that this is a case in which the Tribunal did apply the wrong test. Therefore, this application for judicial review must succeed. In my judgment, the decision of the Tribunal must be quashed. The appropriate course is it should be remitted to the Tribunal for the Tribunal to hear Mr Lynch's application for an extension of time in accordance with the proper test.

18. MR MORTON: My Lord, we are grateful. There are no further applications.

19. MR JUSTICE NEWMAN: Thank you very much indeed for your help.

20. MR MORTON: Thank you.

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