AH v Secretary of State for Defence

This appeal is supported by the Secretary of State.

I am satisfied on the arguments before me that that the Pensions Appeal Tribunals for Scotland (“PATS”) erred materially in law in the decision to which it came on 5 June 2024 and that its decision should be set aside as a result.

This is an appeal, with my permission, against the decision the decision made by the PATS on 5 June 2024. By that decision, the PATS dismissed the appellant’s appeal against the Secretary of State’s decision of 29 April 2022 that her late husband’s injuries of acute alcohol toxicity, alcoholic steatohepatitis, hypertensive heart disease and epilepsy were neither attributable to service nor had they been aggravated by service.

As that PATS and the PATS which had adjourned the hearing of the same appeal previously on 8 November 2023 both recognised, and as is accepted by the parties, the decision on the appellant’s appeal against the 29 April 2022 decision was in effect constrained by the earlier, and separate, decision of the Secretary of State which fixed the percentage assessment for the appellant’s late husband’s PTSD at 20% (and thus, importantly, at less than 50%).

The appellant was given permission by me to appeal on two discrete grounds. An important starting point for both grounds of appeal is that the appellant accepted before me that that there had in fact been no appeal made against the Secretary of State’s decision of 2014 assessing her late husband’s disability arising from PTSD at (only) 20%.

The first ground of appeal is based on the appellant having held a Power of Attorney for her husband. It is argued that as a result the appellant should have been notified of the 2014 20% PTSD decision by the Secretary of State. It appears, but this may need to be clarified in the PATS’s proceedings, that she was not notified of that decision. The argument proceeds that the failure to notify the appellant of that decision in 2014 means that the time for appealing that decision had (and perhaps still has) not begun to run: per R(Anufrijeva) v SSHD [2003] UKHL 36; [2004] 1 AC 604. In terms of the PATS’s decision of 5 June 2024, the first ground of appeal is that the PATS erred in law in failing to sufficiently investigate (i) whether the appellant’s late husband in fact had capacity at the time of that 2014 decision and (ii) if he did not, how his affairs were being managed at that time. Exhibits AH1, AH3, AH4 and AH6 to the appellant’s witness statement of 16 June 2024 may bear on this.

In my judgment, and for the reasons given by the Secretary of State (which I set out below), this ground succeeds. The PATS failed to investigate this issue. The success of this argument on the facts may ultimately turn on the precise legal effect of the Power of Attorney which the appellant says she held at the time of the decision in 2014 and whether, for example, it would have required the Secretary of State to issue that 2014 decision to someone other than her late husband.

The second ground of appeal is that the appellant had not had a sufficient opportunity to provide the PATS with evidence about whether her late husband had not had capacity between the date of the 2014 PTSD decision and his death, before the it made the 5 June 2024 decision. The PATS expressly noted in paragraph 14 of its decision that the appellant “was willing to look for [that] evidence”. She has since compiled at least some of that evidence, but it is not clear from the PATS’s decision of 5 June 2024 why the PATS did not afford the appellant with an opportunity to provide that evidence to it before it made its decision. The PATS’s unreasoned failure to afford the appellant with this opportunity was in my judgement unfair and an error of law.

The second ground of appeal is really an alternative to the first ground of appeal, as the second ground has as its focus the appellant’s late husband’s ability to bring an appeal against the 2014 PTSD decision, assuming it was properly notified to him, rather than on whether the appellant is still to be notified of it.

The time limits for bringing appeal are governed by section 8 of the Pensions Appeal Tribunals Act 1943 and the Pensions Appeal Tribunal (Late Appeals) Regulations 2001 (SI 2001 No. 1032). In effect those provisions set an absolute maximum period for bringing an appeal of two years. Here, that would have meant the appeal against the 2014 decision being brought by no later than by sometime in 2016.

However, if the appellant could have shown by evidence that her late husband was in fact incapable of managing his affairs throughout the period from the date of the 2014 PTSD decision until his death, case law such as Adesina v NMC [2013] EWCA Civ 818; [2013] 1 WLR 3156 and PM v SSD (AFCS) [2015] UKUT 647 might, despite the difficulties in waiving such absolute time limits (see for example GJ v SSWP (PIP) [2022] UKUT 340 (AAC)), enable the appellant, under the second ground of appeal, to make a case for a late appeal being allowed against the 2014 PTSD decision.

The Secretary of State’s support for the appeal being allowed by the Upper Tribunal reads as follows:

“2.

The respondent concedes this appeal, and submits that the matter ought to be remitted to a differently constituted PATS for determination of the following questions:

a.

Whether the assessment decision issued by the respondent to the [appellant’s late husband] in 2014 was interim or final;

b.

If interim, whether the appellant is entitled to appeal the assessment on Mr Harwood’s behalf, there being no statutory time limit to require that an appeal against an interim decision is brought within a certain period (s8(1) of the Pensions Appeal Tribunals Act 1943);

c.

If final, whether the appellant is entitled to appeal the assessment outside of the statutory time limit identified by Judge Wright…., and in particular, whether there are exceptional circumstances such that refusal to allow her to do so would effectively prohibit her access to court under the procedure provided by Parliament for the purposes of Article 6 ECHR, in effect, consideration of the Adesina v NMC [2013] EWCA Civ 818 line of authority;

i.

That will involve a determination of whether, as a matter of fact, the appellant has acted with every expedition to bring the challenge, and

ii.

Whether the circumstances of this case are exceptional on the evidence which is before the PATS.

d.

Whether, in either case, the assessment decision was ‘notified’ to [the appellant’s late husband] by the respondent;

i.

That will involve determination of whether, as a matter of fact, the appellant’s late husband] had capacity at the time at which the assessment decision was issued, and thereafter;

ii.

What the effect of any lack of capacity on the part of [the appellant’s late husband] at the time of the assessment decision is for the purposes of whether the decision was ‘notified’ to him, i.e. whether the R (Anufrijeva) v SSHD [2003] UKHL 36 line of authority is in point.

e.

If the PATS concludes that the appellant is entitled to challenge the assessment decision from 2014, it should thereafter determine any challenge to that decision on the merits;

f.

The PATS should thereafter proceed to consider the appeal under section 41 of the Naval, Military and Air Forces (Disablement and Death) Services Pensions Order 2006 (SPO), in light of its assessment of any challenge which is allowed to the 2014 assessment decision.

3.

For the avoidance of doubt, the respondent accepts that the appellant’s first and second grounds of appeal are well-founded and are likely to succeed. The respondent submits that the steps outlined above ought to have been considered by the PATS prior to reaching its decision of 5 June 2024, and in failing to do so, it erred in law…..”

One other issue arose in my grant of permission to appeal. This concerned a legal point the appellant remembered had been suggested by the PATS in the hearing on 5 June 2024. The point was that there may be a principle that time does not begin to run while a person is incapacitated. In giving permission to appeal I said that I was not familiar with this as a legal rule or principle, but if there was such a principle (in Scots Law or otherwise) it should be addressed in the submissions on the appeal. In his submission in response the Secretary of State said this about this rule or principle:

“…the only principle of Scots law which could explain the comments by the PATS is the limitation of personal injury actions, in terms of the Prescription and Limitation (Scotland) Act 1973. The respondent submits that reference to the principle of limitation of actions underscores the error of the PATS-the statutory limit for appeals against a decision of the respondent is determined not by the 1973 Act, but rather by the provisions of the statutory scheme.”

In her reply to the Secretary of State’s response, the appellant argues that the Mental Capacity Act 2005 and sections 28 and 38 of the Limitation Act 1980 may bear on this issue. Those are issues the new PATS may need to consider.

For the reasons set out in paragraphs 6-12 above, the appeal succeeds.

Despite the arguments of the appellant, I do not consider that the Upper Tribunal should re-decide the first instance appeal. Firstly, to redecide the above issues will involve consideration of some evidence which is not before me. Most notably, perhaps, evidence about whether the 2014 PTSD decision was an interim assessment or a final decision. Secondly, the evidence that may already be before me may need to be interrogated. For example, evidence (and argument) about the precise legal effect of the Power of Attorney which the appellant says she held at the time of the decision in 2014 and whether it would have required the Secretary of State to issue that 2014 decision to someone other than her late husband. The existing evidence was not the subject of any detailed consideration at the permission to appeal hearing before me and has not been considered in any detail by the Secretary of State in his submissions to the Upper Tribunal on the appeal. That step will therefore have to be taken and, once this stage has been reached, would be better undertaken by the expert fact-finding body, which is the PATS, at an oral hearing.

The appeal will therefore have to be re-decided afresh by a completely differently constituted PATS, after an oral hearing.

The appellant’s success on this appeal to the Upper Tribunal on error of law says nothing one way or the other about whether she will succeed on the facts before the new PATS.