JD v Secretary of State for Defence (WP)

The claimant enlisted in the Royal Navy on 4 December 1989 on a 22 year open engagement but was discharged on 17 November 1992 on the basis described at the time as “shore – medical reasons”. She claimed disablement benefit under the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 2006 (SI 2006/606) on the ground that she suffered from “depression, anxiety and high levels of distress” due to service. The claim was rejected by the Secretary of State and the claimant appealed to the First-tier Tribunal.

Her appeal was dismissed. The First-tier Tribunal accepted that, during service, the claimant had been “interrogated” in an intrusive way about her sexuality and had found that distressing. However, it found that the mental illness had developed some years later and was not due to her experiences during service. The length of time that elapsed between the claimant’s discharge from service and the onset of her illness was clearly an important factor in the First-tier tribunal’s view that the

The claimant applied to the First-tier Tribunal for permission to appeal, which was granted by the Chamber President on the grounds principally that the statement of reasons made no reference to evidence that the claimant had been suffering from mental illness since at least 1993 and that the service member’s note suggested that he had dissented notwithstanding that the decision was recorded as being unanimous. He specifically indicated that one reason for giving permission was to enable the Upper Tribunal to give guidance about majority decisions. The Secretary of State concedes that the reasoning of the First-tier Tribunal was inadequate but submits that it is unnecessary for the Upper Tribunal to given any guidance about majority decisions because it has already done so in Secretary of State for Work and Pensions v SS (DLA) [2010] UKUT 384 (AAC); [2011] AACR 24.

I am satisfied that the First-tier Tribunal’s reasoning is either inadequate or reveals a failure to have regard to all the material evidence. The claimant’s case was that she had received treatment for depression during, or very shortly after, her service and there was an explanation for the lack of corroborative medical evidence. Her general practitioner had said –

“… our records show there is a significant history of depression since 2000 however the patient advises me it goes back to 1993. Unfortunately some of her medical records are held on a non-accessible disk so I cannot confirm the exact date.”

The First-tier Tribunal made no mention of any of that evidence and so it is not clear whether it overlooked it or rejected it and, if the latter, why it rejected it. The claimant was entitled to reasons that explained how the First-tier Tribunal had reached its decision. This was important evidence on a key factual issue in the case and so how the First-tier Tribunal had dealt with the evidence should have been explained.

I will also to say something about majority decisions, notwithstanding the Secretary of State’s suggestion that it is not necessary to do so, because the Chamber President has raised the issue and they are a relative novelty in the War Pensions and Armed Forces Compensation Chamber of the First-tier Tribunal, to which the functions of the Pensions Appeal Tribunals in England and Wales were transferred in 2008.

In Brain v Minister of Pensions [1947] KB 625 and Minister of Pensions v Horsey [1949] 2 KB 526, it had been held that decisions of the Pensions Appeal Tribunal in England and Wales had to be unanimous. That approach became increasingly out of step with the approach taken in most tribunals and it was not followed in Scotland, where it was held by the Court of Session in Secretary of State for Social Security v KM [1998] ScotCS 67 that majority decisions were permissible. The Scottish decision was followed by a Social Security Commissioner in C1/09-10(AF) in an appeal from a Pensions Appeal Tribunal in Northern Ireland. By then, the position in England and Wales had been also brought into line with that in Scotland, because it is clearly provided by article 8 of the First-tier Tribunal and Upper Tribunal (Composition of Tribunal) Order 2008 (SI 2008/2835) that the First-tier Tribunal may make a decision by a majority.

Article 8 provides –

“If the decision of the tribunal is not unanimous, the decision of the majority is the decision of the tribunal; and the presiding member has a casting vote if the votes are equally divided.”

A panel hearing a case in the War Pensions and Armed Forces Chamber generally consists of a judge, a service member and a medical member, by virtue of paragraph 3 of the Senior President of Tribunals’ Practice Statement on the Composition of Tribunals in relation to matters that fall to be decided by the War Pensions and Armed Forces Compensation Chamber on or after 3 November 2008 which was made to explain his practice under article 2 of the Order. Therefore, there will be no question of the presiding member, who by virtue of paragraph 4 of the Practice Statement is the judge, having a casting vote except where the parties agree under paragraph 15(6) of Schedule 4 to the Tribunals, Courts and Enforcement Act 2007 to a matter being decided in the absence of a member.

Usually decisions are unanimous, and in my judgment it is desirable that they should be, even if that involves what Denning J described in Brain as “some give and take”. Nonetheless, article 8 makes it unnecessary for there to be a rehearing if a member cannot, consistently with his or her judicial oath, honestly bring himself or herself to concur with the majority.

However, although decisions may be reached by a majority, nothing in Tribunal Procedure Rules or in any practice direction or guidance states whether the parties to a case should be informed whether a decision has been reached unanimously or by a majority and, if so, whether the dissenting judge or member should be identified or whether the dissentient’s reasons need to be provided in any statement of reasons for the decision. Practice in the First-tier Tribunal varies enormously, even within Chambers. In some instances parties are not informed whether a decision was by a majority or not; in others, they are. The differing practices sometimes appear to owe more to history than principle, often merely being the continuation of practices developed for the myriad tribunals whose functions have been transferred to the First-tier Tribunal, but the different contexts in which decisions are made may justify some of the variations of practice. In any event, the statutory background has not always remained unchanged. Thus, in social security and child support cases, there was a statutory duty on appeal tribunals constituted under the Social Security Act 1998 to state whether or not a decision had been reached by a majority and to provide reasons for the any dissent. By contrast, as I have said, the Pensions Appeal Tribunals in England and Wales were not even permitted to reach a decision by a majority.

In Secretary of State for Work and Pensions v SS (DLA) [2010] UKUT 384 (AAC); [2011] AACR 24, Upper Tribunal Judge Mesher considered the change in the legislation regarding social security cases and held that the First-tier Tribunal had no obligation to inform parties whether a decision was unanimous or not, although it could do so. He said –

“It is legitimate and not inconsistent with any fundamental principles of natural justice or a fair trial for the judgment to be made that the interests of having a final conclusion on the issues in dispute outweigh the arguments for disclosure of more information. However, it is important to note that the absence of a legal obligation to state whether a decision is unanimous or by a majority does not prevent either a particular tribunal or a Chamber of the First-tier Tribunal or some constituent part of such a Chamber deciding that such information will be given.”

Judge Mesher then went on to hold that, if a party was told that a decision had been reached only by a majority, any reasons for the decision should record the reasons for the dissent. I respectfully agree, because there is no point in informing a person that a decision has been reached by a majority if no indication of the reasons for dissent is to be given when a statement of reasons is requested. There is also value in giving reasons for a dissent because, as Judge Mesher said, providing such reasons –

“… can sometimes point up and clarify where the majority found the losing party’s case wanting. Sometimes it can expose a potential flaw in the majority’s reasoning.”

He also held that it followed that, if a decision had in fact been reached by a majority but the parties were erroneously told in the decision notice that the decision had been reached unanimously, any subsequent statement of reasons should correct the mistake and include the reasons of the dissenting member. Again, I respectfully agree.

The present case is indistinguishable from SS. As in SS, the parties were informed in the decision notice that the decision was unanimous, but a note of the proceedings made by a member of the panel shows that it was in fact made by a majority. Also as in SS, the statement of reasons in this case failed to correct the error in the decision notice or to record the reasons for dissent. Perhaps the comparative rarity of majority decisions explains why panels sometimes forget to identify them and unthinkingly describe them as unanimous. In any event, clearly the parties ought not to have been told that the decision was unanimous when in fact it was not and, equally clearly, the First-tier Tribunal ought to have provided reasons for the dissent when it had purported to inform the parties whether or not the decision was unanimous.

However, although Judge Mesher decided that the failure to give reasons for the dissent in SS amounted to a material error of law, I consider that the point is not free from doubt. I held in CDLA/572/2001 that a breach of the former statutory duty to provide reasons for dissent in a social security case was a material error of law, but it is arguable that a failure to give reasons for a dissent where the First-tier Tribunal has informed the parties that a decision was made by a majority, without having been under any legal duty – whether imposed by legislation or a formal practice direction or, perhaps, by published guidance – to do so, is merely at worst a breach of good practice rather than an error of law.

In the present case, therefore, I prefer not to express a view as to whether there was an error of law in the First-tier Tribunal not correcting the error it had made in stating on the decision notice that the decision was unanimous and in not providing reasons for the dissent. It is unnecessary for me to do so because I have accepted that there was an error of law on other grounds.

It is common ground that the case should be remitted to the First-tier Tribunal. If the Secretary of State intended to suggest that the mere point that findings of fact need to be made necessarily requires the Upper Tribunal to remit a case to the First-tier Tribunal, I do not agree. It depends on what sort of facts are in dispute and what is more convenient for the parties. However, where fairness requires there to be an oral hearing and the Upper Tribunal is not proposing to hold one or where the dispute of fact is one in respect of which the expertise of the First-tier Tribunal will be relevant, remittal will almost inevitably be appropriate. That was the approach suggested by Upper Tribunal Judge Ward in MW v Halton Borough Council [2010] UKUT 34 (AAC), to which the Secretary of State referred. Usually, of course, both of those considerations are present and that is the position here. It is for that reason that I agree that the case should be remitted.