Secretary of State for Defence v President of the Pension Appeal Tribunals (England & Wales)

This is an application for Judicial Review bought by the Secretary of State for Defence concerning the decision of the President of Pensions Appeal Tribunals (England & Wales) dated 19^th June 2002 to set aside, pursuant to Rule 37 of the Pensions Appeal Tribunal (England & Wales) Rules (SI 1980/1120) (the Rules”), the decision of a Pensions Appeal Tribunal (“the PAT”) dated 27^th February 2002. The PAT had dismissed Mr Jones’ appeal from the Secretary of State’s decision, dated 20^th July 2001, to refuse him an allowance under Article 17 of the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order (SI 1983/883) (“Article 17”) in connection with his service pension. Mr Jones applied to the PAT for leave to appeal to the High Court and on the 19^th June 2003 the President issued a direction under Rule 37 of the Rules purporting to set aside the PAT’s decision and ordered a rehearing before a differently constituted PAT.

On 22^nd February 1962 Mr Jones was awarded a service pension for bronchial asthma and Colles fracture of the right wrist arising from his service as a private in the Army (ROAC) between 26^th November 1954 until 7^th July 1961. On 13^th July 1999 Mr Jones applied for a clothing allowance under Article 17. The Secretary of State refused his application. Mr Jones’ appeal to the Tribunal was refused on 27^th February 2002.

Thereafter, on 10^th March 2002, Mr Jones applied to the Tribunal under Rule 25 of the Rules for leave to appeal the Tribunal’s decision to the High Court. On 19^th June 2002 the President of the Tribunals, on his initiative, pursuant to Rule 37 of the Rules, made/gave a direction that the Tribunal’s decision be set aside on account of an irregularity under Rule 5 of the Rules. The irregularity was stated as being that the Secretary of State’s Statement of Case “did not really meet the claimant’s case about the link between his asthma and the soiling of his clothes…”. The President has produced a document setting out his observations attached to which are a number of earlier decisions in different cases reached pursuant to Rule 37.

Following a decision by the President not to be represented at the hearing of the claim by the Secretary of State for Defence, the Court requested and the Solicitor General agreed to the appointment of an Advocate to the Court. Mr Jones as the Interested Party and person directly affected by any decision of the Court has also been unrepresented. Another case (CO/4669/2002) where Major Lawson was the Interested Party and which the Court had ordered to be heard at the same time as the present case has been settled by Secretary of State for Defence withdrawing his claim.

The Pensions Appeal Tribunals Act 1943 ("the 1943 Act") makes provision, inter alia, for servicemen who have had claims in respect of disablement arising out of their military service rejected, and against other decisions by the relevant minister affecting awards in respect of such claims, to appeal to the PAT. Section 1 of the 1943 Act applies to the rejection of war pension claims made by members of the naval, military or air forces and provides that:-

Section 5A inserted into the 1943 Act by section 57(1) of the Child Support, Pensions and Social Security Act 2000 provides as follows:-

Pursuant to the Pensions Appeal Tribunals (Additional Rights of Appeal) Regulations 2001 SI 2001/1031 ("the 2001 Regs."), made in exercise of the power conferred on the Secretary of State for Social Security by section 5A(2) of the 1943 Act, a decision by the Secretary of State for Defence made in relation to a claim for an allowance for wear and tear of clothing under the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 1983 ("the SPO") is a "specified decision" for the purposes of section 5A of the 1943 Act (see Regulations 2 and 3(1)(a) and (b)(ii) of the 2001 Regs. and the reference in the Schedule to Article 17 of the SPO). Article 17 of the Service Pensions Order provides as follows:-

Section 6 of the 1943 Act makes provision for the constitution, jurisdiction and procedure of the PAT. A number of subsections have been inserted into section 6 by various Acts since the 1943 Act was given Royal Assent. It provides as follows:-

The Schedule to the 1943 Act makes further provision as to the constitution, jurisdiction and procedure of PATs and provides, inter alia, for the constitution of PATs, appointment of members and the appointment of a President of the PAT by the Lord Chancellor (see paras. 1, 2 & 2B). Paras. 3B, 3C and 5 of the Schedule provide as follows:-

The rules made under paragraph 5 of the Schedule to the 1943 Act are the Pensions Appeal Tribunals (England and Wales) Rules 1980 SI. 1980/1120 (i.e. the PAT Rules).

Rule 2 contains specific definitions including:

Rule 4 provides as follows:-

Rule 5, insofar as is relevant, provides as follows:-

Rule 11 relates to the representation of the appellant and Secretary of State at any appeal hearing and Rule 11(3) imposes a positive duty on the PAT to assist any appellant who appears to be unable to make the best of his case.

Rule 14 confers on the PAT extensive powers to adjourn the hearing of an appeal for further information or evidence and Rule 15 empowers the PAT to take specialist medical advice where difficult medical or technical questions arise.

Rules 18 and 19 relate to the announcement and recording of a PAT's decision and provide as follows:-

Rule 20 reflects paragraph 5(1)(a) of the Schedule to the 1943 Act and makes provision for the hearing of an appeal in the absence of the parties or their representatives. Rule 20 insofar as is material provides as follows:-

A similar power to set aside a determination on application by the appellant exists under Rule 21(2) where the President is satisfied that an appellant through prolonged physical or mental infirmity is unlikely to be able to attend the PAT and the appeal is determined in the appellant's absence. As with Rule 20, the power to set aside the decision under Rule 21(2) is subject to the President first affording each party a reasonable opportunity to make representations.

Rule 25 sets out the procedure for applying for leave to appeal to the High Court and Rule 28 makes provision for the payment of an appellant's expenses of appealing or defending a decision of the PAT in the High Court (including the costs of applying for or resisting leave to appeal). Rule 29 makes provision for the payment of an appellant's costs where a joint application is made by the appellant and the Secretary of State under section 6(2A) of the 1943 Act.

Rule 32 makes provision for the making of interlocutory applications for directions and states:-

Rule 33 makes provision for the PAT to extend time for the doing of any act or taking any step in connection with an appeal which power extends to the procedural requirements set out in Rule 5, but the power is given “in connection with an appeal” and cannot be exercised after a decision on the appeal has been reached. However, the decision includes the “reasons” (see Article 18) and Rule 33 would enable time to be extended for the reasons of the PAT to be given.

Rule 37, which is at the heart of the present claim, provides as follows:-

The PAT's original decision taken on 27^th February 2002 was to disallow Mr Jones' claim for clothing allowance. The reasons for the PAT’s decision are set out in the document headed "Mr David D Jones: NINO: ZP 45 16 12D" which states, insofar as is relevant, as follows:-

The PAT’s decision taken on 19^th June 2003 setting aside the Tribunal's original decision taken on 27^th February 2002 is contained in a document signed by HMC Concannon as Chairman and is headed "Directions". It states as follows:-

The PAT as a creature of statute derives its powers from the statute creating it.

Section 6(1) and paras. 3B and 3C(3) of the Schedule to the 1943 Act confers on the President of the PAT power to give directions as to the practice and procedure to be followed by the PAT including the power to vary or revoke directions previously given.

Section 6(2A) of the 1943 Act expressly provides for the PAT to be able to set aside a decision on an appeal on a joint application by the appellant and the Secretary of State where additional evidence comes to light or the PAT's decision is erroneous in point of law.

Section 6(1) and para. 5(1) of the Schedule to the 1943 Act together with Rules 20 and 21 of the PAT Rules expressly confer power on the President of the PAT to set aside a decision on an appeal determined in the absence of the appellant where the President considers that it is in the interests of justice to do so and arrange for the appeal to be re-heard before a differently constituted tribunal. But, whether the power is exercised under Rule 20 or 21, the President must give each party a reasonable opportunity to make representations.

Rule 37 of the PAT Rules gives the President power to give directions where there has been non-compliance with the PAT Rules for the purpose of mitigating the consequences of an irregularity but the limit in point of time of the power conferred by Rule 37 is the point at which a decision on the appeal is made by the PAT (see Akewushola v Secretary of State for the Home Department [2000] 1 WLR 2295 per Sedley LJ @ p.2301B).

Except in the circumstances provided for by section 6(2A) of the 1943 Act and Rules 20 and 21 of the PAT Rules, once the PAT has announced its decision it has no power to reconsider it or reopen the case subject to its decision being quashed by the High Court. SeeWade & Forsyth p. 916 and Akewushola v Secretary of State for the Home Department [2000] 1 WLR 2295 per Sedley LJ @ p. 2301E where he said:-

The relevant part of Sedley LJ's judgment in Akewushola was relied on by Scott-Baker J in Secretary of State for the Home Department v Immigration Appeal Tribunal [2001] QB 1224 who went on to sayat para. 67:-

Section 6(2) of the 1943 Act confers on the appellant or Secretary of State a right of appeal to the High Court (subject to leave being granted) against a decision of the PAT. But subject to that right and the provision for the appellant and Secretary of State to make a joint application where additional evidence has come to light or the PAT's decision is erroneous in law (see section 6(2A) of the 1943 Act), the PAT's decision on any issue on which an appeal is brought under the 1943 Act is final and conclusive (see section 6(3) of the 1943 Act).

The claim gives rise to the following issues:-

The 1943 Act and PAT Rules properly construed do not confer any power on the President to set aside a decision on an appeal except in the circumstances provided for by section 6(2A) of the 1943 Act and Rules 20 and 21 of the PAT Rules. A decision on an appeal is arguably made when it is announced by the PAT following the hearing of the appeal or is communicated in writing to the parties pursuant to Rule 18 of the PAT Rules. It is at the very latest made when the Chairman of the Tribunal signs the Form of Decision and the Form of Decision is certified by the President and copies sent to the appellant and the Secretary of State pursuant to Rule 19(2) -(3) because at that point it becomes conclusive evidence of the PAT's decision on the appeal to which it relates (see Rule 19(4) of the PAT Rules).

Such a construction does not create any procedural or substantive unfairness to a losing party as they have a statutory right of appeal (save in an assessment appeal), subject to leave being granted, to the High Court against any decision taken by the PAT. Moreover, if the Secretary of State and the appellant agree that additional evidence has come to light or the PAT's decision is erroneous in point of law there is also express provision for a joint application to be made by the Secretary of State and the appellant to the President which, if granted, allows the decision to be treated as having been set aside and to direct the re-determination of the appeal. Further, in those circumstances the Secretary of State within 2 months of any such direction can himself review the decision which led to the appeal being made in the first place and come to a different decision (see section 6(2C) and (3) of the 1943 Act. In other words, where the PAT has made a decision on an appeal which ordinarily must be treated as being final and conclusive in accordance with section 6(3) of the 1943 Act provision is nonetheless made for that decision to be revisited by the Secretary of State (as the original decision taker) and the PAT in the particular circumstances set out in section 6(2A). So, for example, if additional medical evidence not before the PAT when the appeal was heard became available which might cause an appeal against a refusal of clothing allowance to be allowed instead of refused, or if the PAT had made an accepted error of law it would be unnecessary to appeal to the High Court and have the decision quashed before it could be re-determined by the PAT because section 6(2A) provides a short-cut which allows the PAT to reconsider the appeal.

Further, Rules 20 and 21 of the PAT Rules also make provision for the President to set aside a decision where an appeal has been heard in the absence of an appellant. Consequently, a construction of the 1943 Act and Rule 37 of the PAT Rules which precludes any general power to set aside a decision is neither inconsistent with the statutory scheme nor the acknowledged width of the discretion given to the PAT in determining appeals.

The submission is further supported by the temporal limitation on the power to mitigate the consequences of any non-compliance with the PAT Rules which is the point at which the PAT reaches a decision on the appeal (see Akewushola).

Even if the 1943 Act and PAT Rules could properly be construed as conferring a power on the President of the PAT to set aside a decision of the PAT where there had been an irregularity, natural justice would require any party affected by such a decision to be given an opportunity to make representations to the PAT. This, it is submitted, is a self evident proposition but is supported by Rule 19(4) which provides that a copy of a Form of Decision is conclusive evidence of the PAT's decision because express provision is made for the public to rely on the decision.

Moreover, a requirement to give an affected party the opportunity to make representations where the PAT is minded to set aside a decision because of an irregularity would be entirely consistent with the express provisions for setting aside a decision where an appeal has been determined in the absence of the appellant (see Rules 20 and 21). In such cases the power to arrange for an appeal to be re-heard is subject to: (1) an application being made to the President without undue delay; and (2) the President affording each party a reasonable opportunity to make representations. It is difficult to conceive of a case where even if he had the power to do so the President could unilaterally and without any reference to either of the affected parties simply direct that a decision should be set aside and the appeal reheard.

The irregularity relied upon by the PAT as justifying the setting aside of the original decision was that the Statement of Case did not meet Mr Jones' claim that it was the medication he took for his asthma (an accepted disablement) that caused the sweats and nosebleeds which soiled his clothes and bedding (see PAT's decision 19^th June 2002).

Rule 5(1) of the PAT Rules requires the Secretary of State to prepare a document to be called a "Statement of Case" which is required to contain: (1) the relevant facts (including the appellant's relevant medical history) relating to the appellant's case as known to the Secretary of State; and (2) in the case of an entitlement appeal, the Secretary of State's reasons for making the decision against which an appeal is brought.

In the present case Mr Jones' application to the War Pensions Agency for clothing allowance was dated 5^th June 2001. His application was refused on 20^th July 2001. Mr Jones appealed to the PAT. The Secretary of State prepared a Statement of Case containing the relevant facts and it being an entitlement appeal, his reasons for making the decision Mr Jones answered the Secretary of State's Statement of Case attaching statements and documents. In his supplementary statement he said:-

In an undated response the Secretary of State commented on Mr Jones' answers presumably in accordance with Rule 5(5) in a document headed "Secretary of State's Further Reasons for Decision" in which he said as follows:-

In responding to the Secretary of State's Further Reasons for Decision Mr Jones said, inter alia:-

Consequently, the issue as to whether or not the treatment for Mr Jones' accepted disablement was or was not causative of sweats etc at night was not overlooked by the Secretary of State but was a matter of dispute between him and Mr Jones. Moreover, the issue was one which was before the PAT albeit that the tribunal hearing his appeal does not appear to have appreciated the point that Mr Jones was making (see the PAT's original decision).

In the circumstances, the issue of jurisdiction apart, the rationale for the PAT unilaterally setting aside its decision on the basis that the Secretary of State had failed in his Statement of Case to meet Mr Jones' claim about the link between his asthma and the soiling of his clothes is not supported by the facts.

It is apparent from the comments made by the President and the decisions attached to his comments that the Jones (and now settled Lawson) cases are not the first time the PAT has purported to use Rule 37 to set aside a decision reached on an appeal and remit it to a freshly constituted tribunal for re-hearing. Moreover, from those other decisions it is plain that: (1) the PAT has not always given the Secretary of State (discharging his duties through the War Pensions Agency) an opportunity to make representations; and (2) where the War Pensions Agency has been consulted it has on a number of occasions agreed to the original decision being set aside and the appeal being remitted to a fresh tribunal. There are nevertheless limits to the extent to which this Court should attempt to rule in connection with each of the other cases.

The following points can be seen to emerge. In the Lawson case (now settled), the Secretary of State at the fresh hearing had argued that the PAT had no jurisdiction to rehear the appeal for the same reasons advanced in the Skeleton Argument in the present case. However, the PAT rejected that submission on the following grounds relating to the construction of section 6(3) of the 1943 Act:-

It appears from the President's comments that the setting aside of decisions reached on appeals under Rule 37 of the PAT Rules is an established practice which has been assented to by the War Pensions Agency and, in some cases, suggested by the Secretary of State's representatives.

Further, and in relation to Mr Jones' case, it is apparent from the President's comments that the reason why the President set aside the decision reached by the PAT on 12^th February 2003 was that in the Chairman's view "… the Tribunal's Reasons for Decision were inadequate because they did not deal with the Appellant's main argument" and, therefore, there was an arguable case that "…the Tribunal's Decision was erroneous as a matter of law". Moreover, it was because the PAT perceived that it had made an error of law and because "… the Chairman suggested that there might be an appropriate alternative to giving permission to appeal to the High Court" that the President set aside the original decision under Rule 37. No indication has been given as to why the Secretary of State was not given an opportunity to make representations on that proposed course of action.

Firstly, it is not relevant to the proper construction of the Rules that the Secretary of State through the War Pensions Agency has in the past consented to a decision of the PAT being set aside under Rule 37 or even proposed that the President should set aside an appeal decision. Jurisdiction in this regard cannot be conferred by consent.

Secondly, there is no inconsistency between the ability of the Secretary of State to review a decision of the PAT pursuant to Article 67(2A) of the SPO and the 1943 Act and PAT Rules. The powers defined by the SPO are pursuant to an Order in Council made in the exercise of the royal prerogative pursuant to section 12(1) of the Social security (Miscellaneous Provisions) Act 1977 whereas the PAT Rules are made under the 1943 Act. Moreover, the ability of the Secretary of State to review a decision of the PAT under Article 67(2A) is only exercisable where he is satisfied that there has been a relevant change of circumstances since the decision was made, including any improvement or deterioration in the disablement. This reflects the Secretary of State's on-going obligation to make proper provision for servicemen and the inevitable changes that may occur in their disablements in respect of which they are entitled to assistance. By way of contrast, the PAT's function, important though it is, is to adjudicate between an appellant (whose application for assistance has been refused) and the Secretary of State (whose decision it was to refuse it) on the facts known at the time.

Thirdly, the power to set aside a decision on an appeal conferred by Rules 20 and 21 is expressly provided for by para. 5(1)(a) of the Schedule to the 1943 Act whereas the 1943 Act does not make any provisions for the making of rules for dealing with irregularities and more particularly for the setting aside of a decision where there has been non-compliance with the Rules. Although it could be argued that para. 5(1)(a) of the Schedule only gives the Lord Chancellor the power to make rules with respect to the manner of hearing appeals where an appellant is absent and does not extend to giving the President power to set aside a decision once it has been taken, the ability to set aside such a decision is a necessary safeguard against the effects of decisions which are taken in the absence of the appellants and can properly be read into the 1943 Act.

Fourthly, although the statutory right of appeal and the power of the PAT to set aside a decision on an appeal under section 6(2A) of the 1943 Act on a joint application by the appellant and the Secretary of State where there is new evidence or the PAT's decision is erroneous in point of law is restricted to entitlement appeals, that appears to have been the plain intention of Parliament. Indeed the anomaly created by a statutory right of appeal to the High Court against a decision of the PAT on an entitlement appeal and the necessity to challenge a decision on an assessment appeal by judicial review has always existed as the amendments to section 6(2) of the 1943 Act made by the Child Support, Pensions and Social Security Act 2000 only substituted the words "sections 1, 2, 3 or 5A" for the words originally enacted, namely "section one" to "four" (see section 57(2) of the Act).

As regards the PAT's practice of using Rule 37 to set aside decisions on appeals evidenced by the decisions attached to the President's comments, there appears to be no consistency as to when the War Pensions Agency is or is not given an opportunity to make representations. However, if the 1943 Act and Rule 37 do give the President power to set aside decisions reached by a Tribunal on an appeal where there has been an irregularity, it would be consistent with the principle of natural justice that a party affected by a decision to set aside an earlier PAT decision and remit the appeal to be reheard should be given an opportunity to make such representations as he might wish.

Further, it appears plain from the President's comments that the rationale for setting aside the PAT's decision in this case relates not to a failure by the Secretary of State to comply with Rule 5 of the PAT Rules but because the PAT recognised that its reasons for dismissing Mr Jones' appeal had not addressed Mr Jones' principal argument and there had therefore been an error of law which would have entitled Mr Jones to have permission to appeal to the High Court. In other words, the deficiency which caused the President to set aside the PAT's decision was not a failure by the Secretary of State in the preparation of the Rule 5 Statement of Case but a failure by the PAT to address Mr Jones' argument that it was the steroids which he was taking for his accepted condition which gave rise to the claim.

For the foregoing reasons, the President had no power to set aside the PAT's decision of 12^th February 2003 and/or that decision was taken in breach of natural justice and/or the reason given for exercising the power was irrational.

The case should be remitted to the PAT for directions in connection with Mr Jones’ application for leave to appeal to the High Court.