Iles v Service Personnel and Veterans Agency & Anor

This is my extemporary judgment in an appeal by Mr Mark Graham Iles against Service Personnel and Veterans Agency and the Ministry of Defence, appeal number CH/2012/6673. This is the hearing of an appeal from a written decision of the Deputy Pensions Ombudsman, Mrs Jane Irvine, dated 7 December 2012.

By way of background the appellant, Mr Iles, is a former serviceman. He had a distinguished military career. He enlisted for service in the army on 8 September 1970 and he was discharged on 30 June 1992 in the rank of Staff Sergeant, having served for almost 22 years. During his time in the army he served not only in Great Britain but also in Germany, Greece, Northern Ireland, Norway, Gibraltar, Italy, Portugal and Zimbabwe. But his military career did not end with his discharge from the army in 1992. He enlisted into section D of the Regular Army Reserve on 6 August 1999, and his engagement continued without break until 7 May 2009. As such he was liable for call-out for permanent service under the Reserve Forces Act 1996. That Act contains provisions (in Part 6, sections 50 to 64) for call-out for permanent service and (in Part 7, sections 65 to 77) for re-call for service. In fact it was under Part 6, relating to call-out for permanent service, that the appellant was called out and mobilised for service on no less than five separate occasions. Three of those took place before 6 April 2005. The most recent of those three occasions involved the appellant in serving in Bosnia, from August 2002 until June 2003.

Following his demobilisation from Bosnia, the Armed Forces Personnel Administration Agency wrote to Mr Iles on 21 November 2003. The writer advised Mr Iles that his Armed Forces Pension Scheme service pension, which at the time was under the 1975 Armed Forces Pension Scheme, had been subject to revision following his recent period of re-employed service within the armed forces. The writer stated that under the terms of section 28 of the Army Pensions Warrant 1977, Mr Iles's service pension had been enhanced, and would be paid at a revised rate of £10,563.36 per year from an effective date of 11 June 2003. All other terms and conditions of Mr Iles's service pension were said to remain unchanged.

The appellant was next called out for permanent service with effect from 5 September 2005. He was called out under section 56 of the Reserve Forces Act 1996 for service in Afghanistan. He served there from 5 September 2005 until 15 May 2006. At the end of that period of further service Mr Iles received a similar letter from the Armed Forces Personnel Administration Agency, dated on this occasion 6 June 2006. That letter read as follows:

The appellant was called out for permanent service for a final time on 2 October 2006. On this occasion his call-out was under section 54 of the Reserve Forces Act 1996. On this occasion the appellant served in Iraq from October 2006 until 22 June 2007. Before Mr Iles was accepted for service on this occasion he was informed that his further period of service would not count towards an enhanced pension under the 1975 Armed Forces Pension Scheme. Rather, he had the option of securing a much less favourable pension under the terms of the Reserve Forces Pension Scheme. This was a new scheme which had come into existence under and by virtue of the Reserve Forces Pension Scheme Regulations 2005 with effect from 6 April 2005. Very reluctantly, Mr Iles says, and because he had already geared himself up for his fifth period of further service in Iraq, Mr Iles submitted to this.

The only other relevant event is that, having been forewarned of this in about June 2007, in October 2007 the Service Personnel and Veterans Agency, which operates the armed forces pension schemes as an executive agency of the Ministry of Defence, stopped the additional payments under the 1975 Armed Forces Pension Scheme which Mr Iles had been receiving with effect from 16 May 2006 as a result of his further period of service in Afghanistan between September 2005 and May 2006. It is that decision which formed the subject matter of Mr Iles's complaint to the Pensions Ombudsman.

In her determination, dated 7 December 2012, Mrs Irvine identified the subject of Mr Iles's complaint in the following terms:

The Deputy Pensions Ombudsman's determination was that Mr Iles's complaint should be upheld in part against the Ministry of Defence and the Service Personnel and Veterans Agency because they had failed adequately to notify Mr Iles of the changes to his pension arrangements. In her detailed determination, the Deputy Pensions Ombudsman related the material facts of the case at paragraphs 1 through to 25. They included the fact that, although a complaint had been made to the Pensions Ombudsman, the determination of that complaint had been deferred pending the exhaustion by Mr Iles of the internal disputes resolution procedure within the Service Personnel and Veterans Agency. When that complaint had been resolved against Mr Iles, his complaint to the Pensions Ombudsman was processed, and resulted in the Deputy Pensions Ombudsman's detailed determination.

At paragraph 26 of that determination, the Deputy Pensions Ombudsman summarised the key points raised by Mr Iles. At paragraph 27 she summarised the response from the Service Personnel and Veterans Agency. At paragraph 28 the Deputy Pensions Ombudsman referred to a request by Mr Iles for her to hold an oral hearing, and the reasons why she had determined that the case could be adequately considered on the basis of written evidence, and why she did not find that there would be anything to be gained by holding an oral hearing in the instant case. At paragraphs 29 through to 60 the Deputy Pensions Ombudsman set out her conclusions. At paragraph 60 she indicated that she was upholding Mr Iles's complaint against the Ministry of Defence and the Service Personnel and Veterans Agency to the extent of holding that there was maladministration in the way that changes to his pension arrangements had been communicated to him. Her direction at paragraph 61 was that the Ministry of Defence and the Service Personnel and Veterans Agency should jointly pay Mr Iles the sum of £1,000 in recognition of the considerable distress he had suffered as a consequence of the maladministration which she had identified earlier in her detailed determination.

Mr Iles filed an appellant's notice seeking to challenge that decision. The appellant's notice was filed at the High Court on 20 December 2012. At section 5 of the appellant's notice, Mr Iles indicated that he advanced his appeal under two separate grounds. The first related to paragraphs 31 to 33 of the determination. He said that in paragraph 31 the Deputy Pensions Ombudsman had found that article 19F of the Army Pensions Warrant 1977 (as amended with effect from 6 April 2005) had closed the 1975 Armed Forces Pensions Scheme to Mr Iles. He claimed that it did not, and he wished to appeal against that part of the decision.

The second ground of appeal related to paragraph 53 of the detailed determination. He recorded that in that paragraph the Deputy Pensions Ombudsman had found that the necessary elements for a contract to exist were not there. He claimed that they were, and he wished to appeal against that decision. This decision was said to encompass to some extent the points made at paragraph 47, that used the ‘balance of probabilities’ and ‘more likely than not’ approach, and in paragraph 50, the ‘on-balance’ method. To that end, Mr Iles said that he had included them in his second skeleton argument. In section 8 of the appellant's notice Mr Iles said that he was inviting the appeal court to vary the Deputy Pensions Ombudsman's order and substitute the following: First, in relation to paragraph 31, he wished for the determination to be varied to provide that:

The appellant's notice was accompanied by detailed grounds of appeal. The first grounds related to the closure of the 1975 Scheme to Mr Iles. His claim was said to be that the Service Personnel and Veterans Agency had unlawfully denied Mr Iles from accruing further benefits under the 1975 Scheme for his mobilised service in Afghanistan and in Iraq. Mr Iles contended that article 19F(a) of the prerogative instrument closure amendment had not closed the scheme to him and, as such, the Service Personnel and Veterans Agency had not acted in accordance with the Army Pensions Warrant 1977 Scheme rules. The Deputy Pensions Ombudsman had found that article 19F(a) did close the 1975 Scheme to Mr Iles. That was said to be a wrong decision for the five reasons that followed. Mr Iles said that he expanded upon that ground of appeal in his skeleton argument number 1. Mr Iles has since supplemented his skeleton argument number 1 on both 8 May and 17 June 2013.

The second ground of appeal related to the stopping of Mr Iles's 1975 Scheme payments. He said that the Service Personnel and Veterans Agency had stopped his accrued 1975 Scheme benefits that were in payment from his period of mobilised service in Afghanistan some 18 months after he had served there. Irrespective of any earlier error by the Service Personnel and Veterans Agency, this was said to amount to a breach of a legally binding contract. The Deputy Pensions Ombudsman had found that the required elements of a contract were not present. That was said to be a wrong decision. Mr Iles set out four brief grounds in support of that contention, contending that the Deputy Pensions Ombudsman had not recognised the contractual relevance of those four matters.

Mr Iles expanded upon his second ground of appeal in his skeleton argument 2. That skeleton argument has also been supplemented by later additions on 8 and 22 May this year. The skeleton arguments are quite lengthy and are to be found at dividers 6 and 7 of file 1 served in support of Mr Iles's appeal.

In his appellant's notice, Mr Iles had wrongly indicated that permission to appeal from the decision of the Deputy Pensions Ombudsman was required. The appellant's notice was therefore referred to Morgan J who undertook the case management of the appeal. In an order made on 18 February 2013 Morgan J indicated that the appeal was one pursuant to section 151(4) of the Pension Schemes Act 1993. He indicated that, since the respondents to the original decision of the Deputy Pensions Ombudsman had been the Ministry of Defence and the Service Personnel and Veterans Agency, it was appropriate in the appeal against that decision to refer to the same respondents. His order of 18 February 2013 also indicated that the appellant must, in addition, serve the appellant's notice on the Deputy Pensions Ombudsman if he had not already done so. That, I understand, has been done, but, as is customary on these appeals, there has been no appearance or attendance by a representative of the Pensions Ombudsman. Morgan J expressed a provisional view that, since this was a statutory appeal, permission to appeal was not required, citing Colley v Council for Licensed Conveyancers [2002] 1 WLR 160. He gave a direction that the respondents should write to the court stating whether they accepted that the appellant did not require permission to appeal or whether they contended that he did require permission to appeal, and, in the latter event, giving detailed reasons for that contention.

The papers came before Morgan J again on 25 March 2013. In his order of that day Morgan J ordered that, as permission to appeal was not required in this case, the substantive appeal should be listed before a High Court judge on the first open date, with a time estimate of one day. This is the hearing of that appeal.

The appellant, Mr Mark Graham Iles, appears before the court as a litigant in person, with the assistance of his father, Mr Raymond Iles, as his McKenzie friend. The respondents are represented by Mr Simon Murray of counsel. Mr Murray has produced a written skeleton argument dated 28 June 2013. Mr Iles says that he has only received that skeleton this morning. In the event, I am satisfied that that has occasioned no injustice to Mr Iles. Mr Iles addressed me for two and a half hours, from just after 10.30 until just after 1 o'clock, when the court adjourned for lunch. During the course of his oral address, Mr Iles handed up a four-page précis of his oral submissions. He addressed me by reference to that and other documents which he handed up during the course of his oral submissions; and he took me in detail through his written skeleton arguments which I had, in any event, pre-read. After the short adjournment, I indicated to Mr Iles that, if he wished, he could address me further; but he indicated that he had said all that he needed to do. I did not find it necessary to call upon Mr Murray for the respondent to the appeal.

In his written skeleton argument Mr Murray had submitted that the appeal brought by Mr Iles did not in fact fall within the ambit of section 151(4) of the Act, and consequently the Chancery Division had no jurisdiction to consider the factual challenges raised by the appellant. Although I have not heard from Mr Murray because, in the event, my decision on the substantive appeal made it unnecessary for me to do so, I should record that I would not have accepted that submission by Mr Murray.

In his written skeleton Mr Murray had correctly identified that the appellant relied upon two grounds of appeal, which could be characterised as ‘the article 19F ground’ and ‘the contract ground’. Mr Murray submitted that both points were, on any analysis, appeals against factual findings by the court, and not on a point of law. He submitted that, although couched in the language of an error of law, the claimant attacked the Deputy Pensions Ombudsman's decision as being wrong on the facts by finding (i) that the appellant was closed out of the 1975 Scheme by reason of his post-6 April 2005 service and (ii) that the letter of July (it says 2009 but in fact I think it is a reference to the letter of June 2006) was not a contract. Mr Murray says that those are determinations made by the Deputy Pensions Ombudsman on the facts. I would reject that submission.

As regards ground 1, the article 19F ground, what Mr Iles is saying is that the Deputy Pensions Ombudsman misdirected herself as to the true meaning and effect of article 19F. That, in my judgment, raises a short point of construction which is effectively a matter of law and, as such, founds jurisdiction in the court to consider an appeal.

In relation to the contract ground, again what it seems to me Mr Iles is doing is to challenge the Deputy Pensions Ombudsman's conclusion that, on the facts, as found by her, which I accept are not subject to an appeal, there was no contract between the parties. It seems to me that Mr Iles's complaint relates to the legal consequences of the Deputy Pensions Ombudsman's findings of fact, and therefore the appeal is one on a point of law which the Chancery Division has jurisdiction to entertain. As I say, I have not heard Mr Murray's oral submissions on those points; but it does not seem to me that there is force in those points that he makes.

Mr Murray also submits, in relation to the article 19F ground, that the challenge to the Deputy Pensions Ombudsman is effectively identical to the challenge advanced by Mr Iles in the internal disputes resolution procedure. He says that the article 19F ground in the appeal is less of a challenge to the Deputy Pensions Ombudsman's decision than a challenge to the decision taken by the Ministry of Defence to close the 1975 Scheme to him. Founding upon that submission, Mr Murray further contends that what the appellant is doing is attempting to seek an out of time judicial review of the underlying decision of the Ministry of Defence to exclude him from the 1975 Scheme in relation to his further service in Afghanistan, and then in Iraq, by using the mechanism of the statutory appeal against the Pensions Ombudsman. That, it is said by Mr Murray, is not permissible. The court is said to have only the jurisdiction granted to it by the statute in this regard.

Again I would reject that submission. Mr Iles is challenging a determination of the Pensions Ombudsman. The Pensions Ombudsman had declined to entertain his complaint until the full internal complaints procedures within the Ministry of Defence and the Service Personnel and Veterans Agency had been exhausted. The fact that Mr Iles had exhausted those procedures, and has not challenged the result by way of judicial review, did not prevent him then from pursuing his complaint to the Pensions Ombudsman; and, when it was not determined in the way he would have wished, he was entitled to bring an appeal, admittedly limited to a point of law, against the resulting determination of the Pensions Ombudsman under section 151(4) of the Pension Schemes Act 1993.

Mr Murray has a further point. He says that by upholding his complaint in part, the appellant had won in front of the Deputy Pensions Ombudsman. She had ordered the respondents to pay £1,000 to Mr Iles in recognition of the distress he had suffered. His complaint was therefore upheld. The appeal is not against that order, and is therefore said to be outwith the ambit of section 151(4) of the 1993 Act. Mr Murray supports that submission by pointing to section 5 of the appellant's notice, where Mr Iles is required to indicate the parts of the order against which he wishes to appeal. Mr Murray says that Mr Iles's response was to refer to the two factual findings that the 1975 Scheme was closed to Mr Iles, and that the June 2006 letter from the Service Personnel and Veterans Agency did not amount to a contract. Those were said not to be determinations or directions, and the appeal cannot therefore be sustained in the circumstances.

Again I would have rejected that submission had it been necessary for me to do so. As the Deputy Pensions Ombudsman made clear in her description of the subject of the complaint by Mr Iles, his complaint was that he had not been allowed to increase his entitlement under the 1975 Scheme, but had been required to join the Reserve Forces Pension Scheme instead. Mr Iles had also complained that he was originally told that a period of service he gave in 2005 to 2006 would be used to increase his pension under the 1975 Scheme, though that had been transferred to the Reserve Forces Pension Scheme. The Deputy Pensions Ombudsman found that there had been maladministration on the part of the Ministry of Defence and its executive agency because they had failed adequately to notify Mr Iles of the changes to his pension arrangements; but she declined to uphold the principal subject matter of Mr Iles's complaint.

In my judgment, Mr Iles is clearly entitled, if there is a point of law to be taken, to appeal against those parts of the determination which went against him. The mere fact that he had succeeded in obtaining relatively modest compensation of £1,000 in recognition of the considerable distress he had suffered as a consequence of the maladministration identified by the Deputy Pensions Ombudsman was by no means sufficient redress for the loss of the enhanced pension available under the 1975 Scheme. In his written documentation in support of the appeal, Mr Iles has indicated that, assuming he were to live to the age of 90, his total loss would be in the order, potentially, of some £190,000. The figures themselves indicate that, although partially successful, it was a very minor partial success. Mr Iles must be entitled, if there is a point of law to be taken, to appeal against those parts of the determination that went against him.

It is because I am not with Mr Murray on those principal parts of his written skeleton argument that it seemed to me that the late receipt of that document by Mr Iles had occasioned him no prejudice whatsoever. But at the very end of his skeleton, at paragraph 10, Mr Murray indicates that, notwithstanding the above matters, the respondents accept the decision of the Deputy Pensions Ombudsman, and concur with her findings in respect of both the article 19F ground, and the contract ground, for the reasons that she gives. Mr Iles had anticipated that that would be the attitude of the respondents to this appeal. He had advanced his written and oral submissions on that basis. I do accept Mr Murray's submission that on both the article 19F ground, and the contract ground, the Deputy Pensions Ombudsman was correct, and for substantially the reasons that she gave in her detailed written determination.

I turn then to Mr Iles's two grounds of appeal. First, the article 19F ground. In an attempt to reduce the pensions liability on the armed forces, in 2005 the Ministry of Defence had closed the existing 1975 Armed Service Pensions Scheme to certain officers and soldiers. Mr Iles's submissions, in the light of the way in which the Deputy Pensions Ombudsman's determination was expressed, have naturally focused upon article 19F of the amended Army Pensions Warrant 1977. But, in my judgment it is necessary to start first with article 19E. This provides that, subject to article 19H, the pension arrangements set out in the warrant apply to officers and soldiers whose service ends before 6 April 2005, and who did not opt out of the arrangements, or who are in service on 6 April 2005 and who have not opted out of the arrangements.

Mr Iles was asked by me whether it was his contention that he was still in service on 6 April 2005. His answer was that he accepted that he was not in pensionable service because one had to be drawing a salary in order to accrue future benefits under the 1975 Pension Scheme; but, although not in pensionable service, he was an enlisted soldier. As I have indicated, Mr Iles had enlisted in section D of the regular reserve on 6 August 1999, and his engagement continued, without interruption, until 7 May 2009.

It seems to me that the real issue raised by the first of Mr Iles's grounds of appeal, the article 19F ground, is whether, as he expresses it at paragraph 28 of his skeleton argument 1, article 19F only closed the 1975 Scheme to those taking up employment for the first time in the army, and also to regular soldiers re-enlisting after 6 April 2005. Mr Iles's submission is that that is the effect of article 19F, and that he did neither of those things. He did not begin service in the army on or after 6 April 2005 because he had been in service for many years before that. He had been in permanent service in the regular army until discharged on 30 June 1992; and he had been enlisted, and remained enlisted, in section D of the army reserve until 7 May 2009.

Article 19F provides that the pension arrangements set out in the 1977 Warrant are closed to (a) officers and soldiers whose service in the army begins on or after 6 April 2005 or, subject to article 19G, whose service given as a result of re-enlisting begins on or after 6 April 2005. Mr Iles submits that he does not fall within the ambit of article 19F. He says that his service in the army began before 6 April 2005. He also says, and this seems to me to be the case, that his re-enlisting did not begin on or after 6 April 2005.

As I read paragraph 31 of the Deputy Pensions Ombudsman's detailed determination, she accepted that Mr Iles had not re-enlisted on or after 6 April 2005; but she was of the view that “service” was a separate matter from “enlisting” or “re-enlisting”. She said that eligibility for membership of the 1975 Scheme was tied to the date on which service was given, not when the individual enlisted or re-enlisted. She recorded Mr Iles's explanation that he had not been required to re-enlist when he was called out; but she said that she was afraid that that was not relevant. Equally, the fact that Mr Iles's engagement was unbroken between 1999 and 2009 was not relevant in the present context. He had not given unbroken “service” in that period, and it was the timing of his periods of service that was said to be critical to his entitlement. She rejected Mr Iles's contention to the contrary. She said that, as it stands, article 19F made it clear that there was a differentiation between enlisting and giving service. No more was necessary. I accept that analysis of article 19F.

Mr Iles says that what article 19F(a) does not do is refer to officers and soldiers whose further service in the army begins on or after 6 April 2005. In that respect he contrasts the wording of article 19F(a) of the 1977 Warrant with the wording of article B1.6 of the 2010 Warrant. That states that where a member gives further service (and I stress “further”) on or after 6 April 2005, after a break in service of more than one month, the member is not eligible to be a member of the Scheme in respect of that further service. I acknowledge that article 19F(a) might have been clearer had it included the word "further" as qualifying the word "service"; but, in my judgment, when reading article 19F in conjunction with, and in the context of, articles 19E and 19G, it is implicit in article 19F(a) that each period of service is being taken separately. A period of service in the army begins each time a reserve solder is “accepted” into service. That seems to me to follow from the provisions of section 59 of the Reserve Forces Act 1996.

Section 59 is headed "Acceptance into Service under Call-out Order". Subsection (1) provides that a person served with a call-out notice who (a) presents himself for service to an authorised officer at the time and place specified in the notice under section 58(3)(c), (b) presents himself for service to an authorised officer at any other time or place, or (c) is brought before an authorised officer after the time so specified, may be “accepted into service” by that officer. By subsection (2), where such a person is accepted into service, he should be informed by the authorised officer in the prescribed manner that he has been accepted into service by virtue of subsection (1).

Included within the appeal bundle file 2 at divider 11, item 8, is the notice of call-out dated 7 September 2006 which related to Mr Iles's last tour of duty in Iraq under section 54 of the Reserve Forces Act. Paragraph 2 of that notice of call-out gave notice to Mr Iles that he was called out for personal service, and was required to present himself for service at a specified location, on a specified date, and at a specified time, and to remain there until he was either accepted into service or informed that he was not to be accepted into service. It seems to me that it is quite clear that in relation both to his call-out to serve in Afghanistan, and also in relation to his later, and final, call-out to serve in Iraq, in September 2005 and October 2006 respectively, on each occasion Mr Iles was separately “accepted into service”. He was accepted into service upon mobilisation until he was demobilised. In my judgment, and in agreement with the Deputy Pensions Ombudsman, that constituted service in the army “beginning” on or after 6 April 2005 on each occasion.

At paragraph 47 of his skeleton argument number 1, Mr Iles makes the point that no credible explanation has been given by the Ministry of Defence as to why 1975 Scheme members, in the event of being re-called for service under Part 7, can accrue further 1975 Scheme benefits, whilst those called out for permanent service under Part 6 of the Reserve Forces Act, as was the case with Mr Iles, cannot so accrue further 1975 Scheme benefits. It may be that the explanation is the compulsory nature of re-call for service under Part 7, in contrast with call-out for permanent service under Part 6; but, whatever the explanation, as the Deputy Pensions Ombudsman rightly recorded at paragraph 29 of her detailed determination, it was not within her remit to consider whether the terms of the Reserve Forces Pension Scheme were fair, or whether there should be parity between the regular army and reservists in their pension provisions. Those are matters of government policy. The Deputy Pensions Ombudsman's role was, as she rightly said, to determine whether Mr Iles was receiving his entitlement under the existing terms of the relevant pension schemes, and in accordance with the legal framework surrounding those pension arrangements.

In my judgment, the Deputy Pensions Ombudsman correctly identified the task she had to undertake, and she correctly answered the question that was before her. For the reasons I have given, in my judgment she correctly construed article 19F of the 1977 Warrant as amended. I can find no error of law in her approach or decision.

I can deal with the second ground of appeal, the contract ground, more shortly. The focus of this ground of appeal is upon paragraph 53 of the determination. Mr Iles was said to have raised the argument that he had, in effect, a contract permitting the increase to his 1975 Scheme pension. He was said to have relied on the June 2006 letter from the Service Personnel and Veterans Agency. I think it is fair to say that Mr Iles also relies upon the earlier 2003 letter, written after the completion of his period of service in Bosnia. So far as the earlier 21 November 2003 letter is concerned, that letter was correct at the time it was written. That is because the period of service that Mr Iles had accrued in Bosnia was, in accordance with the then warrant, correctly added to his 1975 Scheme pension. That was accurately recorded in the letter of 21 November 2003. The letter concluded: "All other terms and conditions of your service pension remain unchanged." That was a correct statement as of 21 November 2003. It could not, however, amount to any form of agreement, or representation, that the other terms and conditions of Mr Iles's service pension would remain unchanged for the future.

So far as the letter of 6 June 2006 is concerned, that letter was written just a few days before Mr Iles's fourth period of mobilisation in Afghanistan was due to come to an end on 15 May 2006. It was inaccurate at the time it was written because the 1977 Warrant had, by then, been amended so as to close the 1975 Scheme to those reservists whose period of service had begun on or after 6 April 2005. I cannot read the letter of 6 June as amounting to any form of contract. In any event, as the Deputy Pensions Ombudsman said, Mr Iles had, apart from nine days, already completed his fourth period of service in Afghanistan. I cannot see this letter as capable of giving rise to any contractual entitlement on the part of Mr Iles to have his period of service in Afghanistan added to his existing periods of service for the purpose of calculating his pension entitlement under the 1975 Scheme.

There is other documentation that Mr Iles says that he saw before entering into his further period of service in Afghanistan that indicated that his period of service there would be taken into account when calculating his pension entitlement in accordance with the 1975 Scheme. The Deputy Pensions Ombudsman found that there had been maladministration in that regard, and she awarded compensation accordingly. Any appeal is limited to points of law, and it is not open to Mr Iles to challenge the award of compensation, which was a matter for the Deputy Pensions Ombudsman; and his grounds of appeal do not seek to do so.

What Mr Iles can submit is that the Deputy Pensions Ombudsman was wrong, on the facts that she found, in refusing to find a contract; but, in my judgment, she was entirely right in the approach that she adopted. The reality is that there was no contract between Mr Iles and the Ministry of Defence or the Service Personnel and Veterans Agency, as the Ministry of Defence's executive agency, regulating his pension entitlement. That was a matter governed entirely by quasi-legislation, promulgated under the royal prerogative. There was no separate contract entitling Mr Iles to have his period of service in Afghanistan aggregated for the purposes of the 1975 Scheme pension to which he was already entitled.

It may be that had the Ministry of Defence, or its executive agency, sought to claw back the pension which it had wrongly overpaid Mr Iles between June 2006 and October 2007, it would have been estopped from doing so, but it has never sought to do so; and, therefore, even apart from the fact that there is no challenge to the Deputy Pensions Ombudsman's decision on estoppel, no grounds for an estoppel of that kind arose on the facts. Having made a mistake, the Ministry of Defence, and its executive agency, have sought to do the best they can, consistently with the terms of the new prerogative pensions scheme. They have not sought to claw back past payments, and they have treated Mr Iles's period of service in Afghanistan as counting for the purposes of the new Reserve Forces Pension Scheme.

In summary therefore, and for the reasons that I have given, I can find no error of law in either of the two respects advanced by Mr Iles, and therefore the present appeal falls to be dismissed. So my decision is that the appeal is dismissed.