Hodder v Pensions Appeal Tribunal

This is a rolled up application for permission to apply for judicial review of a decision of the Pensions Appeal Tribunal (“the Tribunal”) given on 3 April 2007, whereby they increased the assessment of disability suffered by the claimant on account of service related Post Traumatic Stress Disorder (“PTSD”) from 20% (as made by the Service Personnel and Veterans Agency of the Ministry of Defence) to 30%. The Tribunal has taken no part in the proceedings. The Secretary of State for Defence, as interested party, served summary grounds of resistance to the claim. Neither filed any evidence in response to that served on them by the Claimant, and neither appeared at the hearing.

The Claimant contends that the decision was irrational, alternatively that the reasons given for it were inadequate.

The Claimant was born on 22 June 1958. He joined the Royal Navy from school in November 1974. He was medically discharged from the Royal Navy on 13 June 1977. The reason for his discharge was stated to be ‘psychoneurosis’. Whilst in the Royal Navy, the Claimant says that he was subjected to a sustained campaign of bullying which led to his psychiatric problems. It was many years later that the Claimant first pursued a claim for a pension on the basis that his illness was attributable to his service. Such a pension is known as a War Pension. The Secretary of State for Defence is responsible for deciding such claims, which are awarded under the Naval, Military and Air Force etc (Disablement and Death) Service Pensions Order 1983. They are administered by the Service Personnel and Veterans Agency, an executive agency of the Ministry of Defence (“the Agency”).

There are two stages to the award of a War Pension. First, the Secretary of State decides whether or not there is an entitlement to a pension. A pension is only payable if a medical condition is attributable to service or was aggravated by service. That is known as an ‘entitlement decision’. If the Secretary of State concludes that a serviceman is entitled to a War Pension, at the second stage he decides the degree of disability caused by the condition or aggravation. That is done in percentage terms. The percentage so determined then dictates the nature and quantum of War Pension which the serviceman receives. The second stage is known as the ‘assessment decision’.

The Tribunal was established by the Pensions Appeal Tribunal Act 1943 [“the Act”]. Section 1 of the Act provides for a right of appeal against an entitlement decision and section 5 against an assessment decision.

The procedural background to this claim is long and complex. In summary, the Secretary of State originally determined that the Claimant suffered from three psychiatric conditions:

Depressive Disorder;

Personality Disorder;

PTSD.

On that occasion, the Tribunal allowed his entitlement appeal in respect of PTSD but dismissed it in respect of Personality Disorder and Depressive Disorder. It followed that as at 16 February 2005 the Claimant was entitled to a War Pension in respect of PTSD only. However, the Claimant launched judicial review proceedings against the Tribunal in respect of those aspects of the appeals that he lost. The Secretary of State agreed that the Tribunal had fallen into legal error in the way it had conducted the appeal. The Judicial Review proceedings were compromised in a consent order dated 11 May 2006. Among the orders made were:

In the meantime, and consequent upon the acceptance by the Tribunal that the Claimant’s PTSD was attributable to service, the Agency had made an assessment decision of 20%. The context in which that assessment was reached was that the evidence available to the Agency suggested to it that the overall disability suffered by the Claimant from what it considered to be a constellation of psychiatric problems was 60%. Following the appeal, an opinion of the Agency’s medical service was provided by Dr U. A. Finucane which concluded that “Mr Hodder’s total level of psychiatric disablement is of the order of 60%”. He then explained in considerable detail why he concluded that PTSD accounted for only 20%. The Claimant was dissatisfied with that assessment and exercised his right of appeal under section 5 of the Act. Additionally, there was an issue about the backdating of whatever pension was payable.

When the matter went back before the Tribunal there were thus three distinct issues before it. First, whether the War Pension should be backdated. Secondly, the appeal under section 1 of the Act concerning entitlement in respect of Depressive and Personality Disorders. Thirdly, the appeal in respect of assessment of disability caused by the PTSD. It remained the Claimant’s goal to establish that he suffered substantial disability all of which was the result of his service, and all of which should be labelled as PTSD. He continued utterly to reject the other diagnostic labels or any suggestion that any of his problems was constitutional in origin. The Claimant was represented at the hearing by Mark McGhee, a partner of Messrs Linder Myers, Solicitors. The Agency was represented by one of its officials. The initial stance of the Agency was plainly to uphold its entitlement decision regarding Depressive and Personality Disorders and maintain its assessment regarding PTSD of 20%.

In circumstances to which I shall return, the Claimant withdrew his appeal against the entitlement decision and the Tribunal struck them out under paragraph 9(1) of the Pension Appeal Tribunals (England and Wales) Rules 1980 [“the Rules”]. There was a very large body of written material before the Tribunal which its members considered. Additionally they heard oral evidence from the Claimant and submissions from the representative of the Agency and Mr McGhee. Mr McGhee suggested to the Tribunal that as the Agency itself considered that the disability stemming from psychiatric conditions was 60% that figure (at least) should be applied to the PTSD which was the only one left for consideration at the hearing. Unfortunately, Mr McGhee’s witness statement does not indicate the nature of submissions made by the representative of the Agency. The Tribunal made a decision which was reduced to writing. It increased the assessment from 20% to 30%. The written decision was as follows:

The use of the words ‘as a covert’ towards the end of the decision is obviously an error. It may be that it should read “carer”. The critical findings are in paragraph 9 of that decision. There has been particular focus on these:

The evidence put forward on behalf of the Agency had suggested, at least until the hearing of the appeal on 3 April 2007, that Mr Hodder suffered from 3 psychiatric conditions only one of which (PTSD) was attributable to his service. It had been its position that the assessment should reflect only the disability caused by PTSD and not the other conditions. It was in those circumstances that the award of 20% was arrived at. Thus, the Acknowledgment of Service filed on behalf of the Secretary of State contends that the Agency maintained its position throughout the hearing and that the Tribunal accepted that position, but appropriately discounted the figure of 60%, which the Agency had concluded was the correct figure if all three conditions were attributable, to 30% for PTSD alone. The sentence from paragraph 9 just quoted was said to reflect that position. Conversely, the Claimant suggests the same sentence confirms that the Agency recognised that the Claimant suffered from neither of the other conditions.

The Claimant has filed a very detailed witness statement dealing with what happened at the hearing on 3 April 2007. At a number of points in the course of that statement he emphasised the emotional turmoil and confusion from which he was suffering that day. There are parts of his statement which appear to confuse the chronology of what happened and it is clear that everything he says is infused with a profound mistrust of the Ministry of Defence and all its emanations, and also of the Tribunal itself. For these reasons I prefer to collect a description of what occurred from the statements of Mr McGhee, David Allison (who is the Cognitive Behavioural Therapist based at Addenbrooke’s Hospital, Cambridge, treating the Claimant) and Alan Blacker, the Legal Adviser to the Royal British Legion, who was an observer with Mr McGhee at the hearing.

Mr McGhee’s evidence is contained in a witness statement dated 2 July 2007. In his statement he uses the shorthand ‘appeals (b) and (c)’ to describe the entitlement appeal regarding Personality and Depressive Disorder on the one hand and the assessment appeal for PTSD on the other. In paragraph 11 of his statement he describes the way in which the Tribunal determined the backdating aspect of the appeal in the Claimant’s favour. He then sets out how the remaining aspects were dealt with. Mr McGhee says that he made no notes during the hearing and so the description committed to writing 3 months later was his best recollection. It is contained in paragraphs 12 to 15 of the statement which state as follows:

From this description, it appears that the initiative for withdrawing the entitlement appeal came from the Chairman of the Tribunal herself and was not commented upon by the representative of the Agency. Mr McGhee understood the approach being suggested by the Chairman as having the consequence of attributing all psychiatric problems to PTSD and to service, in other words effectively rejecting the central contention of the Agency without hearing any argument upon it. It is for that reason especially unsatisfactory that the submissions subsequently made by that Agency’s representative are nowhere described in the evidence served on behalf of the Claimant nor in evidence from the Tribunal or the Secretary of State. Nonetheless, Mr McGhee’s recollection is confirmed by both Mr Allison and Mr Blacker. In a short statement dated 2 July 2007 Mr Allison said:

The essence of the evidence before me lodged by the Claimant is that the Tribunal effectively secured the tacit agreement of the representative of the Agency to abandon its central case without hearing oral evidence or argument. There is no evidence of explicit agreement and unless the representative of the Agency was given a proper opportunity to make representations, to proceed as the Claimant suggests that the Tribunal did would have been manifestly unfair.

Following the determination of the appeal a new Certificate of Entitlement and Assessment was issued by the Agency. It is dated 24 April 2007. It is signed by a doctor but for no apparent reason the signature, both handwritten and typed, has been redacted in the version before the Court. The Certificate noted that the award had been backdated to 14 June 1977 and related only to PTSD. The Certificate contained an assessment in the following terms:

So it seems that the anonymised author of that document understood the reasons given by the Tribunal in the way urged by the Claimant rather than by the Secretary of State in his Acknowledgement of Service.

There are two alternative interpretations of the decision of the Tribunal.

That it approached its task as described by the Claimant and recognised that all his psychiatric difficulties were attributable to his service but concluded that his overall disability was very much less than recognised in the expert evidence in the paperwork before it.

That it approached its task on the basis of the original stance of the Agency that the Claimant suffered from 3 conditions, only one of which called for recognition for War Pension purposes, but increased the assessment for PTSD because it considered that condition was responsible for a greater part of the Claimant’s difficulties that has been recognised by the Agency.

The Claimant submits that if the Tribunal approached its task in the first way, then its decision was irrational in the face of the evidence or at the least is unexplained. In so far as there is any explanation, it is found in paragraph 9 of the decision and especially the last part with the confusing reference to ‘as a covert’. It might be thought that the Tribunal was suggesting that the Claimant’s disability, even allocating all his problems to his service, was less serious than had been contended. But, submits the Claimant, that is far from clear and the reasoning is inadequate to explain why the Tribunal came to a conclusion so different from that expressed by the Agency’s medical services. If, on the other hand, the Tribunal approached its task on the alternative basis as the Secretary of State suggests it did, then its reasoning is completely opaque.

The Claimant recognises that reasons given by the Tribunal need not be elaborate and must be read with the eye of a participant in the proceedings who can be taken to understand the background and appreciate much that has been left unsaid. Nonetheless, the Claimant submits that the reasons must be sufficient to enable those who participated in the proceedings to understand why they won or lost and must deal, albeit shortly, with the principal bones of contention. Those principals are not controversial and can be collected from many authorities dealing with adequacy of reasons. The Claimant suggests that he has no idea why the Tribunal came to 30% as opposed to 60% or thereabouts, assuming that they were approaching their task on the first basis. If they were approaching it on the second, which would suggest a fundamental misunderstanding on the part of the Claimant of the basis on which he withdrew his entitlement appeals, they have not said so. In particular, the sentence from paragraph 9 of the reasons on which the Secretary of State relies in his Acknowledgment of Service as supporting that position, can be read as suggesting the opposite.

On the basis of the information available to me, including the Secretary of State’s Acknowledgement of Service, I have concluded that the short reasons given by the Tribunal on 3 April 2007 do not sufficiently set out the basis for the conclusion that the Claimant’s qualifying disability amounts to 30%. If it approached the task on the first basis, then in my judgment the Claimant was entitled to know why the assessment of his total disability amounted to 30%, when his own medical evidence and that from the Agency suggested it was much greater. The reasons need not have been elaborate and might have been articulated sufficiently in a few sentences. Nonetheless, something needed to be said. If contrary to his understanding, the Tribunal was approaching its task on the second basis then that needed to be clear. It is striking that both the Claimant and the Secretary of State each suggest that the sentence from paragraph 9 of the reasons to which I have referred supports the contradictory stances they have adopted. On this basis, I grant permission to apply for judicial review and quash the decision of the Tribunal of 3 April 2007. The assessment appeal will be remitted to the Tribunal for reconsideration. Since I quash the decision on grounds of insufficiency of reasoning it is not, in my judgment, necessary for the matter to be determined by a differently constituted Tribunal. Indeed, there is much to be said for the same constitution hearing the matter again since its members will be familiar with the enormous volume of material that the parties have amassed.

It is, however, extremely important that the parties and Tribunal understand the task which must now be undertaken.

As I have indicated, the Claimant withdrew his entitlement appeal against the Agency’s attribution of most of his problems to Depressive Disorder and Personality Disorder. The consequence was that the entitlement appeal was struck out. The striking out of that appeal has not been challenged. In terms, the Claimant submitted that there was no circumstance in which he wished that appeal to be restored as part of any reconsideration. As Mr Gearty, who appeared for the Claimant, put it ‘he would take his chance’ on whatever outcome flowed from a reconsideration. The Claimant does not want to carry the burden of the other labels and would rather achieve less by way of War Pension than he is entitled to than do so on either of those bases.

Mr Gearty drew to my attention the decision of Mr Kenneth Parker QC, sitting as a Deputy High Court Judge in R(Secretary of State) v Pensions Appeal Tribunal [2007] EWHC 1451(Admin). It concerned the interpretation of Rule 9(3) of the Rules and in particular whether the Tribunal was invested with any discretion whether to strike out an appeal if criterion set out in that Rule was satisfied. He concluded that there was no discretion. The President of the Tribunal thereafter issued a Practice Direction in which the decision of the learned Deputy Judge was interpreted as having the consequence that every aspect of Rule 9 being read literally. Rule 9(1) provides:

The Practice Direction noted that many appeals are withdrawn at the hearing of an appeal. That practice is inconsistent with the literal words of the sub-rule and so would no longer be countenanced. Mr Gearty was concerned on behalf of the Claimant that his withdrawal of the entitlement appeal would be treated as a nullity. Whether the President’s interpretation of Rule 9 as set forth in his Practice Direction is correct is not a matter for decision before me. The fact that one part of a rule is interpreted literally does not necessarily lead to the conclusion that every part of it will be applied in the same way. The Courts have developed a pragmatic approach to deciding whether strict compliance with a rule or regulation is what its maker intended, with invalidity being the consequence of failure to comply. However that may be, the decision of the Tribunal to strike out the entitlement claim has not been challenged. So it must be respected unless it is quashed by a court of competent jurisdiction in a challenge brought according to the procedures established by Rules of Court by someone with standing to do so. For all practical purposes it is now far too late for that to happen.

It follows that the reconsideration before the Tribunal will entail the following stages:

The Tribunal must decide whether PTSD is in fact the only psychiatric condition from which the Claimant suffers.

If PTSD is the only such condition, the Tribunal must then assess the level of disability suffered by the Claimant on account of PTSD.

If the Tribunal concludes that there are psychiatric conditions in play other than PTSD, it must assess the overall disability suffered by the Claimant on account of all psychiatric conditions and then determine how much of that global level is attributable to PTSD.