GAM v Secretary of State for Defence (No 3)

The Appellant’s appeal against the decision of the Pensions Appeal Tribunal (Scotland) dated 27 September 2023 is refused.

I held a remote oral hearing of this appeal on 22 February 2024, using the CVP platform. I am satisfied it was a fair and just way of proceeding. There were no technical hiccups or glitches. The Appellant ably represented himself. Mr David Blair, Advocate, appeared for the Respondent, the Secretary of State for Defence (in practice Veterans UK). I am grateful to both the Appellant and Mr Blair for their helpful and well-focussed submissions.

The Appellant has had two other recent appeals to the Upper Tribunal on other issues (GAM v Secretary of State for Defence (WP) [2024] UKUT 10 (AAC) and GM v Secretary of State for Defence (WP) [2024] UKUT 45 (AAC). Accordingly, and to avoid confusion, I direct that this decision is to be known as GAM v Secretary of State for Defence (No.3).

The Pensions Appeal Tribunal (Scotland) (referred to in this decision as ‘the PAT’ or ‘the Tribunal’) (i) allowed the Appellant’s appeal against the Secretary of State’s refusal to undertake an any time review of an earlier decision; and (ii) directed the Secretary of State to carry out such a review. The issue raised by this further appeal to the Upper Tribunal is whether the PAT erred in law by not directing the Secretary of State to conduct that anytime review in a specific manner.

On 17 July 2007, the Appellant submitted a claim (dated 26 June 2007) under the war pensions scheme for two conditions, namely lower back pain and rectal polyp. On 7 February 2008, the Secretary of State accepted that both conditions were attributable to service and assessed the accepted conditions at 1-5%. The Appellant did not appeal that assessment at the time.

Since then, the Appellant has submitted further claims for other conditions he claims were caused by service. Several of these, but not all of them, have been accepted as attributable to service. The conditions accepted are listed in the Table below. The effective dates of acceptance are noted, so far as they are evident from the papers.

The Appellant’s (current) aggregate interim assessment for all these accepted conditions is 70%. There have also been two further accepted conditions accepted as attributable to service, namely degeneration right knee and bilateral osteoarthritis hips.

On 31 October 2022, the Appellant asked Veterans UK to review the original decision made on 7 February 2008 (in effect under article 44(1) of the Naval, Military and Air Forces Etc (Disablement and Death) Service Pensions Order 2006 (SI 2006/606) [‘the SPO’]). In an e-mail he wrote:

Veterans UK refused to carry out a review as requested and informed the Appellant of this by emails dated 9 and 13 February 2023. The latter e-mail asserted that “we can only consider conditions from the time they are actually claimed; we are not able to consider any condition before the date it was formally claimed… I regret you do not have any appeal rights against this as it is not a claim decision”. Undeterred, the Appellant lodged an appeal with the Tribunal. Before the PAT the Secretary of State then submitted that the Appellant was out of time to appeal the 2008 decision and had no right of appeal against the e-mail dated 13 February 2023. The Secretary of State accordingly applied for the appeal to be struck out.

On 20 April 2023 the PAT ruled that a refusal to review under Article 44(1) and a decision to maintain an earlier decision under Article 44(6) carried appeal rights, citing Secretary of State for Defence v RC (WP) [2012] UUT 229 (AAC); [2013] AACR 4. The Tribunal therefore refused the Secretary of State’s strike out application.

The Tribunal held a video-hearing of the Appellant’s appeal on 27 September 2023.

The Tribunal summarised the Appellant’s case as follows:

The Tribunal summarised the Secretary of State’s case in the following terms:

Having made a series of uncontroversial findings of fact about the chronology, the Tribunal went on to allow the Appellant’s appeal against the Secretary of State’s refusal to undertake an anytime review of the decision dated 7 February 2008 to assess the accepted conditions of lower back pain and rectal polyp at 1-5%. The Tribunal proceeded to explain its reasoning in the following terms (with a footnote omitted):

I should add, by way of explanation, that Mr Ferguson (who is referred to in paragraph [54] of the Tribunal’s decision), represented Veterans UK at the PAT hearing.

Judge Caldwell KC, the President of the Pensions Appeal Tribunals for Scotland, summarised the Appellant’s grounds of appeal in the following terms:

Granting permission to appeal, the President also observed as follows:

I hope I do both parties’ no disrespect when I say I need only summarise their respective submissions before the Upper Tribunal. I have, of course, taken all their arguments into consideration.

The principal thrust of the Appellant’s case was his submission that there was sufficient evidence on his service medical file in 2007 to support findings at the time that he suffered from other conditions in addition to the two specific conditions in respect of which he had made his original war pensions claim. The Appellant emphasised that it had been the duty of the Veterans UK Medical Adviser (MA) to look at all the conditions which he could potentially claim for on the basis of the medical evidence on file (see AL v Secretary of State for Defence (WP) [2016] UKUT 141 (AAC)). He argued, in short, that if “the MA had done his job properly in 2007 we wouldn’t have needed to have this conversation now”. As such, the Appellant contended, the Tribunal should have had regard to the wider issues. Accordingly, the PAT should have directed the Secretary of State on review to consider all the potential conditions disclosed by the available evidence in 2007, and not just the two conditions claimed for.

Mr Blair, for the Respondent, adopted a much narrower approach. Building on the Secretary of State’s written response to the appeal, he submitted that there were essentially just two issues before the PAT, namely (1) whether it had jurisdiction to hear the appeal; and (2) if it did, whether the Secretary of State was entitled to refuse to carry out a review in terms of Article 44 of the SPO. The Tribunal answered both of those questions in the Appellant’s favour and directed the Secretary of State to carry out a review of the decision of 7 February 2008 under Article 44. Having taken that step, that exhausted the appellate function of the Tribunal. Mr Blair submitted it was not within the scope of the Tribunal’s powers to make orders as to the manner of any review which ought to take place. If the Secretary of State duly carries out a review and the Appellant considers that his approach was unlawful, that is a matter which can be raised by way of fresh appeal to the Tribunal at that stage. It is not the role of the PAT to enter into the regulation or choreography of procedure before the Secretary of State.

In reply, the Appellant questioned why the Secretary of State’s consideration of the 2007 claim had ignored evidence on his service file of other medical conditions. He argued that Mr Blair’s submission was a recipe for further dithering and delay, with the inevitable result that we would be back in the Upper Tribunal in three years’ time arguing about the same issues, given the likely outcome of the Secretary of State’s review and any subsequent appeal to the PAT.

I start with an observation about an unusual feature of this appeal. This is a case in which the Appellant succeeded before the PAT. As Mr Blair noted, the Appellant succeeded on both points – first, that the Tribunal had jurisdiction to hear his appeal and, secondly, that it directed the Secretary of State to conduct an anytime review. The general rule is that because an appeal only lies against a judgment or order, a successful party may not appeal in order to challenge particular findings or aspects of the court or tribunal’s reasoning (Lake v Lake [1955] P 336). At first sight the Appellant’s case does not fall within any of the recognised exceptions to that principle, unless possibly it is one of those exceptional cases that goes to jurisdiction (cf Secretary of State for Work and Pensions v Morina [2007] 1 WLR 3033). However, we are where we are. The PAT has given permission to appeal. Mr Blair for the Respondent has not taken the point that I have belatedly raised and it was not canvassed during the oral hearing. As such, it is only fair and just to consider the appeal as having been properly made.

Having done so, however, I am satisfied that the PAT’s decision does not disclose any material error of law. The Tribunal correctly identified the narrow issue raised by the appeal as being the Secretary of State’s refusal (dated 9 and 13 February 2023) to undertake an anytime review of the original decision of 7 February 2008 (reasons at [23]; see also [41]). As such, the Tribunal ruled that the scope of the MA’s duties (in 2008) and the merits of the anytime review application (in 2023) “were not matters for any detailed discussion at this hearing” (reasons at [37]). I agree with Mr Blair that the Tribunal was accordingly not concerned with how that review was to be carried out and/or its lawfulness. It was both inappropriate and premature for the PAT to have undertaken any assessment of the potential lawfulness of a review decision which had yet to be taken. Indeed, it would have been an error of law for the PAT to have proceeded in that manner. As Mr Blair put it, the prolonged procedural history of this case could not justify the PAT dealing with matters ahead of the Secretary of State – for the Tribunal to make an order directing that the review be conducted in a particular way would be to pre-empt a decision that would carry its own appeal rights.

The fundamental point is that the PAT determines appeals against particular decisions by Veterans UK, no more and no less. In the present case that was a decision refusing to conduct an anytime review. The Tribunal does not have an ongoing supervisory function in relation to the way that the Secretary of State discharges his statutory functions. The primary focus of the PAT is therefore on the particular decision under appeal, and not the individual’s case in the round. It follows that the war pensions adjudication and appeals machinery is concerned with specific decisions on entitlement and assessment, rather than on the individual veterans whose cases are the subject of those decisions. The same distinction is evident in the wider civilian benefits system. As I have explained in a social security decision (GJ v Secretary of State for Work and Pensions (PIP) [2022] UKUT 334):

The PAT in the present appeal did precisely that and its decision discloses no material error of law.

I therefore dismiss the Appellant’s appeal.