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

MR JUSTICE DAVIS: This is a claim for judicial review brought on behalf of the Secretary of State for Defence seeking to quash a decision of the Pensions Appeal Tribunal promulgated on 8th March 2004. Essentially, by that decision the Tribunal permitted Mr Lynch, the applicant, to pursue an appeal against a previous rejection of his application for a war disability pension, notwithstanding that his appeal was late.

The background can be relatively shortly stated. Mr Lynch, the applicant in question, had served in the army as a national serviceman in the Royal Artillery for around two years between 1950 and 1952. On 27th January 1992 the Veterans Agency received a request from Mr Lynch for a claim form for a pension and Mr Lynch signed that form on 12th February 1992, making a claim for deafness which he said was attributable to his service. Mr Lynch, it might be added, had been born in 1932.

On 2nd June 1992 Mr Lynch attended an audiologist for a hearing test. The upshot was that whilst it was accepted that he suffered a degree of deafness, it was concluded that that deafness was not attributable to his service, and on 27th October 1992 he was notified that his claim had been rejected. He also would have been notified of his right of appeal against that decision.

The then relevant statutory provision with regard to appeals was contained in the Pensions Appeal Tribunals Act 1943. In section 8 of that Act it was contemplated that the time for appealing should be not later than 12 months in respect of a decision made before such date as might be appointed by order of the minister. But in the event no order of the minister was ever made and in consequence, and as is common ground, there was, in the case of people like Mr Lynch, at the time no time limit with regard to appealing from a rejection of a claim for a war disability pension.

In the event Mr Lynch did not appeal in the immediate aftermath of the rejection of his claim. It is likely that he would at the time have been sent a booklet which accurately reflected the law as it then existed; and in that booklet it was stated expressly that he could make an appeal against a decision of the kind in question -- that is to say, what might be called an entitlement claim -- at any time: although it was pointed out that if he appealed more than three months after the date of the letter of rejection, then his pension, if he succeeded, would only run from the time on which he asked for an appeal.

Section 8 of the 1943 Act was amended by section 58 of the Child Support, Pensions and Social Security Act 2000, which came into force in the relevant respects on 9th April 2001. That Act introduced a time within which what might be called an entitlement appeal -- and that was the nature of Mr Lynch's appeal -- was to be made and the stipulated time limit was six months. However, the Act also had to deal with the position relating to decisions made before the Act came into force; and, in effect, the provisions of the Act were such that in respect of such decisions an appeal had to be brought not later than 12 months after that date; that is to say, by 9th April 2002. So in that way a time limit was introduced for the first time with regard to an entitlement appeal: although it can be said that section 8 of the Pensions Appeal Tribunal Act 1943 had itself always contemplated that there would be a time limit of some kind.

In addition, regulations were introduced with regard to late appeals. These regulations are entitled the Pensions Appeal Tribunals (Late Appeals) Regulations 2001. They came into force also on 9th April 2001. By Regulation 3 this is provided:

Regulation 4 states:

Some observations may be made about the ambit of those Regulations. First, it is a precondition for the exercise of any discretion by the Tribunal that the prescribed circumstances are satisfied in the relevant respects. Those circumstances so prescribed are, on one view, fairly tightly drawn. It connotes that one of the matters set out in subparagraph (a)(i), (ii), (iii) or (iv) must be satisfied; and further, that such matter so to be satisfied was "the main cause of the non-compliance with the time limit". In addition, the Tribunal has to be satisfied that the appeal was in any event brought as soon as was reasonably practicable in the circumstances of the case. If those circumstances are in play, then the Tribunal has a discretion to allow an appeal to be brought out of time: but there is a long stop of no later than 12 months after the expiry of the specified time limit.

Mr Lynch at this particular time still had not lodged any appeal against the rejection of his claim back in October 1992. Ultimately he did put in an appeal. That he did by claim form by a relevant notice of 23rd September 2002; that is to say, some five months after the period mentioned by the statute. Accordingly, his was a late appeal.

The matter came before the Pensions Appeal Tribunal, and by a decision given on 21st October 2002 the Tribunal decided to allow the appeal to be brought, notwithstanding the expiry of the initial time limit. The reason, given by reference to a pro forma form, was that the circumstances put in the application did establish a reasonable excuse for the whole period of delay.

That decision was challenged by a claim for judicial review brought by the Secretary of State and the matter came before Newman J on 4th November 2003. After a brief summary of the background and a very helpful review of the statutory provisions applicable, Newman J concluded that the test which the Tribunal had purported to apply, as set out in its reasons for extending time to appeal, was manifestly a different test to that stipulated by the 2001 Regulations. In such circumstances Newman J remitted the matter to the Pensions Appeal Tribunal for a further hearing on the question of whether this appeal should be allowed to be brought out of time.

By that stage the applicant, Mr Lynch, had put in, in his appeal form, his explanation for the delay. The explanation, such as it was -- and it is to be stressed that Mr Lynch, a man of relatively advanced years, was acting on his own behalf -- was put as follows:

That is all that he says and it is not in some respects entirely easy to follow as an explanation; although he does in terms say that his wife was bad in the year 2000. It is also not clear whether Mr Lynch was focusing on the lapse of time that had occurred from 1992 or whether he was focusing on the position in the light of the change in the law in 2001: although it is to be inferred that by this time he would have had some assistance from the Veterans Agency, and indeed the form submitted by him had -- presumably with the assistance of the Veterans Agency -- been completed in that it expressly stated that the time limit for his appeal ran out on 8th April 2002.

The standard form used by Mr Lynch in fact included in it a box relating to late appeals which provided that an explanation can be given for the late appeal; but that particular box is entirely blank and the only explanation, such as it was, given by Mr Lynch is as I have said.

As to that, Newman J commented in his judgment as follows:

The matter therefore was remitted back to the Tribunal for a further decision. There was, in the event, no oral hearing and the matter, as I understand it, was considered on the papers. The decision of the Tribunal on this particular occasion, as I have said, dated 8th March 2004, was to allow Mr Lynch to pursue his appeal. As I understand it, Mr Lynch had not himself taken any further steps after lodging his initial appeal as he did or after the decision of Newman J, and the Tribunal proceeded by reference to what he had previously said in his original appeal form. Indeed, so far as one can tell, Mr Lynch has not himself taken any steps to advance the matter of his appeal after lodging his appeal notice.

The decision of the chairman is detailed, running to seven pages. It summarises the facts and sets out an exposition of the relevant law at the time of the Secretary of State's initial rejection decision. It then sets out to summarise at length the changes to the law introduced by the Child Support, Pensions and Social Security Act 2000 and the 2001 Regulations. It goes on to summarise the nature of the right to appeal in 1992. It purports to summarise the effect of section 58 of the Child Support, Pensions and Social Security Act 2000 and refers to various authorities, and goes on to offer an interpretation of section 58 at some length, and then proceeds to a conclusion.

It is that decision which is challenged by the Secretary of State who has appeared before me today by Mr Morton of counsel. The Pensions Appeal Tribunal has lodged a very helpful written observations with regard to this matter. It is, of course, not the practice of the Pensions Appeal Tribunal to oppose such an application -- it takes a neutral stance -- but I perhaps might also record that I have had the pleasure of the attendance of Dr Concannon, the chairman, before me today and he has briefly addressed me. Mr Lynch has not appeared or been represented before me: and that seems consistent with his previous conduct in not having vigorously advanced his appeal once it had been put in, any more than he had taken any vigorous steps to appeal after the initial rejection back in 1992.

Mr Morton's submissions are essentially that the latest decision of the Tribunal is flawed. He submits that the detailed reasons adopt a wrong approach to the legal position, introduce concepts of fairness by reference to Article 6 of the European Convention on Human Rights in a way which is entirely inapposite in the present context, and in effect fail to focus on the clear wording and, therefore, effect of the 2001 Regulations themselves, which constitute Parliament's way of providing for how late appeals should be dealt with by tribunals in circumstances such as the present.

I have to say, considering the reasoning set out in the decision and considering the express provisions of the 2001 Regulations, that I think there is a very great deal of force indeed in Mr Morton's submissions: which for the most part I accept.

The first point is that the reasoning of the Tribunal seems to connote that the provisions introduced by the 2000 Act and the 2001 Regulations in some way constitute a repeal of the previous statutory provision. That is not entirely accurate, and moreover seems at various stages to proceed on the footing that limitation provisions involve a substantive benefit; that is to say, that it was a substantive benefit to Mr Lynch that there was no restriction on his time for appealing previously but now there is. That is not correct because the general position in point of law is that questions of time limits are ordinarily to be regarded as procedural. The substantive benefit that Mr Lynch had was to be able to apply for a war disability pension if he could satisfy the appropriate statutory criteria in that regard, and he then also of course had the right of appeal if his initial claim was rejected. But that is quite different from the question of time limits, and indeed there is ample authority in the European jurisprudence to show that states, ordinarily speaking, have the entitlement to impose limitation periods without infringing Article 6.

Moreover, as Mr Morton points out, the decision of the Tribunal is peppered with references to the concept of "fairness". Obviously, in one sense, fairness is the underpinning of positions such as the present; but the more relevant point is that for the purposes of late appeals Parliament itself has in effect stipulated what it considers as fair in deciding when an appeal out of time may or may not be brought; that is to say, the considerations for allowing an appeal to be brought out of time, if it is so allowed, are to be found in the 2001 Regulations which are expressly directed to that particular point. That, as it seems to me, does not confer some kind of residual concept of "fairness" available to the Tribunal in question so as to overcome the correct application of the Regulations: although of course the Regulations do confer a discretion on the Tribunal, provided always that the prescribed circumstances have first been satisfied, and provided always that the long stop of 12 months has not been exceeded.

It does seem to me that those provisions indicate that the Tribunal approached this case on the wrong footing in that the Tribunal took into account irrelevant considerations by reference to an erroneous appreciation of the law. The short question really was: applying the 2001 Regulations precisely in accordance with their terms, was it the case that the prescribed circumstances were satisfied; and, if they were, then was the Tribunal in its discretion prepared to allow the appeal to be brought out of time?

In paragraph 14 of the decision in question, which is the substantive concluding paragraph, this was said by the Tribunal chairman:

Taking that paragraph on its own, that indicates an attempt expressly to apply the circumstances to the provision of the 2001 Regulations. But those circumstances are held to be exceptional because of "the particular background described above". The background described above embraces all the legal observations and comments made by the Tribunal which, it has to be said, are to a very great extent, with all respect, either inapposite or plain wrong.

One of the points raised by the Tribunal at an earlier stage in the decision was this:

It is not actually clear where it comes from when it said that Mr Lynch had said that he first heard of the time limit in such circumstances, because Mr Lynch does not seem to have said expressly as much at all. It may be, however, that that is a fair inference to be drawn; that is to say, Mr Lynch would have been told of the problem at the time he, with the assistance of the Veterans Agency, filled in his appeal notice.

As it seems to me, that, on any footing, is a material consideration to be taken into account by the Tribunal. I think it may be queried whether that of itself is capable of amounting to an exceptional circumstance applying to the claimant within the meaning of Regulation 4, even if it is also accepted that that was the main cause of non-compliance with the time limit. But quite apart from that, it is plain from the wording and structure of the decision that other matters as well -- irrelevant as I would hold -- were taken into account in deciding whether or not Mr Lynch's circumstances were indeed exceptional.

I add that, notwithstanding Mr Lynch's previous referring to the fact, as it is put, that his wife had been bad in 2000, that seems not to have formed any part of the Tribunal's reasoning; and I am bound to say that does not altogether surprise me, given the brevity of what he said. So the Tribunal were clearly not finding that a prescribed circumstance existed by reference to a serious illness of Mr Lynch's spouse.

It seems to me that -- I hope it is the case -- I have said enough to explain why I consider that this decision cannot stand. It seems to me that it is flawed, in particular in that the decision involves taking into account irrelevant considerations and, on the face of it, being influenced by an assessment of the law which was either wrong or irrelevant. The law to be applied was simply that as set out in the 2000 Act and the 2001 Regulations by reference to the facts of the particular case.

Mr Morton said that if I took that view -- and I do take that view -- then I should dismiss the appeal without more, and that I should not remit the matter for further hearing before the Tribunal. It is of course the case that this particular matter has now a long history indeed. I have carefully considered Mr Morton's submissions in this particular regard but I have come to the conclusion that it would not be appropriate for me to dismiss this appeal, even though I quash the decision. I take the view that it is appropriate to remit the matter back to the Tribunal for a fresh hearing on the question of the late appeal. I say that because it may well be -- it is of course a matter for the Tribunal -- that the Tribunal may wish to seek from Mr Lynch any further explanations he may care to give to justify the lateness of his appeal and to seek to show that the prescribed circumstances are satisfied.

It seems to me that the Tribunal would have a discretion to ask him for further materials, and Dr Concannon has confirmed that to me this afternoon (although of course that will be a matter for the particular Tribunal): and it will also be a matter for the Tribunal as to whether or not to admit any further materials which Mr Lynch may seek to put in.

It seems to me that if Mr Lynch does seek to put in further materials, that may well impact upon the ultimate decision; and on any view, as Mr Morton himself has accepted, the fact -- assuming that it is a fact -- that he was at the time ignorant of the new time limit, applicable since 2001, relating to his case, will be material to the ultimate disposition of this case.

Accordingly, I propose to remit this matter for further hearing. I would only add this. If Mr Lynch chooses not to put in further materials, and chooses to rest simply on what he had previously said in his original appeal notice, then he should not be too surprised if the Tribunal were to take the view that he should not be allowed to pursue his appeal out of time.

One other point I would mention. The papers have raised some question as to the length of reasoning appropriate in cases of this kind. All I would say is this. Very often, I apprehend, applications in respect of appeals out of time can be dealt with by the Tribunal in question with relatively short reasoning. But such reasoning as is given must explain sufficiently why it is that the Tribunal is satisfied that the prescribed circumstances are made out and why, if it is so satisfied, it is prepared in its discretion to allow the appeal to be brought. In setting out those prescribed circumstances I think the Tribunal would in particular be well-advised to identify precisely which one or more of the circumstances contained in paragraph (a) are the ones which it has accepted as applying.

In result, however, this claim for judicial review succeeds.

MR MORTON: I am grateful. No further applications.

MR JUSTICE DAVIS: Dr Concannon, I think all I can do is leave it to the Tribunal concerned to decide whether it wishes to invite Mr Lynch to put in further materials and, if it does decide, to what extend to have regard to them. I do not think I can say more than that.