PR v SSD  UKFTT 642 (WPAFCC) (21 December 2010)
IN THE FIRST-TIER TRIBUNAL
WAR PENSIONS AND ARMED FORCES COMPENSATION CHAMBER
The decision of the tribunal is to:
(1) Dismiss the application by the Secretary of State to strike out appeal SD/00377/2009 under rules 8(2)(a) and 8(3)(c) of the Tribunal Procedure (First-tier Tribunal) (War Pensions and Armed Forces Compensation Chamber) Rules 2008, on the withdrawal of the application by the Secretary of State;
(2) Dismiss the application by the Secretary of State to strike out appeal SD/00290/2009 under rule 8(2)(a) of the Tribunal Procedure (First-tier Tribunal) (War Pensions and Armed Forces Compensation) Chamber Rules 2008.
"(1) Subject to the provisions of paragraphs (3), (4) and (5) and to the provisions of paragraph (8)—
(a) any decision accepting or rejecting a claim for pension; or
(b) any assessment of the degree of disablement of a member of the armed forces; or
(c) any final decision that there is no disablement or that the disablement has come to an end
may be reviewed by the Secretary of State at any time on any ground."
Article 44(6) provides:
"(6) Subject to the provisions of paragraphs (4) and (5), on a review under this article, the Secretary of State may maintain or continue, vary or cancel the decision, assessment or award and any revised decision, assessment or award shall be such as may be appropriate having regard to the provisions of this Order."
"(2) Subject to the provisions of paragraphs (4), (5), (8) and (9), any award under this Order may be reviewed by the Secretary of State at any time if the Secretary of State is satisfied that—
(a) the award was made in consequence of ignorance of, or a mistake as to, a material fact, or of a mistake as to the law;
(b) there has been any relevant change of circumstances since the award was made;
(c) the award was based on a decision or assessment to which paragraph (1) of this article applies, and that decision or assessment has been revised."
Importantly, where an assessment or a decision has been made, given or upheld by a tribunal, paragraph (3) limits the Secretary of State's powers of review to the single ground of a change of circumstances:
"(3) Any assessment or decision made, given or upheld by the Pensions Appeal Tribunal under section 8 of the War Pensions (Administrative Provisions Act 1919 or the Pensions Appeal Tribunals Act 1943 or the First-tier Tribunal may be reviewed by the Secretary of State at any time if the Secretary of State is satisfied that there has been a relevant change of circumstances since the assessment or decision was made, including any improvement or deterioration in the disablement in respect of which the assessment was made."
Finally, paragraphs (4), (5) and (9) limit the Secretary of State's powers to revise (as opposed to review) decisions, assessments or awards if the revision would be to the claimant's detriment, as follows:
"(4) Subject to the provisions of paragraph (9), following a review under paragraph (1) of any decision accepting a claim for pension or any assessment of the degree of disablement of a member of the armed forces, that decision or assessment may be revised by the Secretary of State to the detriment of a member of the armed forces only where the Secretary of State is satisfied that-
(a) the decision or assessment was given or made in consequence of ignorance of, or a mistake as to, a material fact, or of a mistake as to the law; or
(b) in the case of a decision accepting a claim for pension—
(i) the decision was given after it had been certified pursuant to article 43(b)(i) that the member of the armed forces was suffering from a specified disablement ("the certified condition") which was attributable to, or aggravated by, his service, and
(ii) since the date of the decision it has been further certified, pursuant to article 43 (b)(i), that the claimant was not, at the date of the earlier certification, suffering from the certified condition; or
(c) there has been a change in the degree of disablement due to service since the assessment was made.
"(5) An award under this Order may be revised by the Secretary of State to the detriment of a member of the armed forces only where the Secretary of State is satisfied that—
(a) the award was made in consequence of ignorance of, or a mistake as to, a material fact, or of a mistake as to the law; or
(b) there has been any relevant change of circumstances since the award was made; or
(c) the decision or assessment upon which the award was based has been revised under paragraph (4)."
(9) Subject to paragraphs (10), (11) and (12), paragraphs (1) to (7) shall not apply to any decision, assessment or award made in respect of or relating to the rate of pension or retired pay for the disablement or death of a member which is due to service before or during the 1914 World War."
"(1) Where any claim in respect of the disablement of any person made under any such Royal Warrant, Order in Council or Order of His Majesty as is administered by the Minister or under a scheme made under section 1 of the Polish Resettlement Act 1947 is rejected by the Minister on the ground that the injury on which the claim is based—
(a) is not attributable to any relevant service; and
(b) does not fulfil the following conditions, namely, that it existed before or arose during any relevant service and has been and remains aggravated thereby;
the Minister shall notify the claimant of his decision, specifying that it is made on that ground, and thereupon an appeal shall lie to a Pensions Appeal Tribunal constituted under this Act (hereafter in this Act referred to as "the Tribunal") on the issue whether the claim was rightly rejected on that ground.
(2) Where, for the purposes of any such claim as aforesaid, the injury on which the claim is based is accepted by the Minister as fulfilling the conditions specified in paragraph (b) of the last foregoing subsection but not as attributable to [any relevant service, the Minister shall notify the claimant of his decision, specifying that the injury is so accepted, and thereupon an appeal shall lie to the Tribunal on the issue whether the injury was attributable to such service.
(3) Where any claim in respect of the death of any person made under any such Royal Warrant, Order in Council [F3, Order of Her Majesty or scheme] as aforesaid is rejected by the Minister on the ground that neither of the following conditions is fulfilled, namely—
(a) that the death of that person was due to or hastened by an injury which was attributable to any relevant service;
(b) that the death was due to or hastened by the aggravation by any relevant service] of an injury which existed before or arose during any relevant service];
the Minister shall notify the claimant of his decision, specifying that it is made on that ground, and thereupon an appeal shall lie to the Tribunal on the issue whether the claim was rightly rejected on that ground.
(3A)The last foregoing subsection shall not apply to any claim made under any such Royal Warrant, Order in Council Order of Her Majesty or scheme as aforesaid in respect of the death of a person who dies after the expiration of the period of seven years beginning with the end of the any relevant service of that person, but where any such claim is rejected by the Minister on the ground that neither of the following conditions is fulfilled, namely—
(a) that the death of that person was due to or substantially hastened by an injury which was attributable to any relevant service];
(b) that the death was due to or substantially hastened by the aggravation by any relevant service of an injury which existed before or arose during any relevant service;
the Minister shall notify the claimant of his decision, specifying that it is made on that ground, and thereupon an appeal shall lie to the Tribunal on the issue whether the claim was rightly rejected on that ground.
(4) Where, in connection with the determination, for the purposes of any such claim as if referred to in the foregoing provisions of this section, of—
(i) the date by reference to which the rank of the disabled or deceased person is to be determined, or
(ii) in the case of a claim by or in respect of a widow, widower, wife, husband or child, the date before which any marriage or any birth, legitimation or adoption of a child must have taken place,
it is contended that, as the result of a particular period of any relevant service, the disabled or deceased person suffered aggravation of the injury on which the claim is based, being aggravation which in the case of death persisted until death, the Minister shall, if he rejects the said contention, notify the claimant of his decision, and thereupon an appeal shall lie to the Tribunal on the issue whether, as a result of such service during that period, the disabled or deceased person suffered such aggravation.
Sections 2-4 are not relevant in this case. Section 5 was amended by the addition of a section 5A by the Child Support, Pensions and Social Security Act 2000, so that it now provides:
"(1) Where, in the case of any such claim as is referred to in section 1, section 2 or section 3 of this Act in respect of the disablement of any person, the Minister makes an interim assessment of the degree of the disablement, he shall notify the claimant thereof and . . . . . . an appeal shall lie to the Tribunal from the interim assessment . . . and from any subsequent interim assessment, and the Tribunal on any such appeal may uphold the Minister's assessment or may alter the assessment in one or both of the following ways, namely—
(a) by increasing or reducing the degree of disablement it specifies; and
(b) by reducing the period for which the assessment is to be in force.
In this section the expression "interim assessment" means any assessment other than such a final assessment as is referred to in the next following subsection.
(2) Where, in the case of any such claim as is referred to in section one, section two or section three of this Act in respect of the disablement of any person, it appears to the Minister that the circumstances of the case permit a final settlement of the question to what extent, if any, the said person is disabled, and accordingly—
(a) he decides that there is no disablement or that the disablement has come to an end or, in the case of any such claim as is referred to in section three of this Act, that the disablement is not or is no longer serious and prolonged; or
(b) he makes a final assessment of the degree or nature of the disablement;
he shall notify the claimant of the decision or assessment, stating that it is a final one, and thereupon an appeal shall lie to the Tribunal on the following issues, namely—
(i) whether the circumstances of the case permit a final settlement of the question aforesaid;
(ii) whether the Minister's decision referred to in paragraph (a) hereof or, as the case may be, the final assessment of the degree or nature of the disablement, was right;
and the Tribunal on any such appeal may set aside the said decision or assessment on the ground that the circumstances of the case do not permit of such a final settlement, or may uphold that decision or assessment, or may make such final assessment of the degree or nature of the disablement as they think proper, which may be either higher or lower than the Minister's assessment, if any and if the Tribunal so set aside the Minister's decision or assessment they may, if they think fit, make such interim assessment of the degree or nature of the disablement, to be in force until such date not later than two years after the making of the Tribunal's assessment, as they think proper.
(3) . . .
5A.(1) Where, in the case of any such claim as is referred to in section 1, 2 or 3 of this Act, the Minister makes a specified decision—
(a) he shall notify the claimant of the decision, specifying the ground on which it is made, and
(b) thereupon an appeal against the decision shall lie to the Tribunal on the issue whether the decision was rightly made on that ground.
(2) For the purposes of subsection (1), a "specified decision" is a decision (other than a decision which is capable of being the subject of an appeal under any other provision of this Act) which is of a kind specified by the Minister in regulations made by statutory instrument.
(3) Regulations under this section shall not be made unless a draft of the regulations has been laid before, and approved by a resolution of, each House of Parliament."
The types of decision which have been specified as carrying appeal rights are set out in Schedule 1A of the Pensions Appeal Tribunals (Additional Rights of Appeal) Regulations 2001, but they do not include decisions made under Article 44.
"24. I can see no answer to that submission. I have considered carefully the points made by the Tribunal in its reasons and specifically in paragraph 8 as set out above. These appear to be threefold.
25. First, it is said that the Veterans Agency had in the past acknowledged that there was a right of appeal against decisions taken on a review. That, however, is by itself entirely consistent with the Secretary of State's position. As Mr Lewis [counsel for the Secretary of State] submitted, it is necessary to distinguish between (a) "the decision whether to undertake a review" -- that is, in a case falling within article 67(2(a), the decision whether there has been a relevant change of circumstances -- and (b), if such a review is undertaken, the decision on that review. The latter would indeed be an appealable decision, but the former is not.
26. Secondly, it is said by the Tribunal that the term "review" is used inconsistently within article 67. With respect, I cannot agree. So far as I can see, whenever the article speaks of "review" it refers to the process of (re)considering the original decision, whether of the Secretary of State or the Tribunal. The decision at the end of that process is characterised as "maintaining, continuing, varying or cancelling" the original decision (depending on the outcome): see paragraph 5. The term "revised", which appears in paragraph 5 and also in paragraph 2(c) and to which the Tribunal refers, appears to be simply a compendious term to cover such a decision.
27. Thirdly, it is said by the Tribunal that someone must have made a decision -- described by it as a decision "that [Mr Hornsby's] evidence was insufficient to merit a change in the PAT decision" -- which underlay the purported decision not to undertake a review; and that decision is in practice indistinguishable from a substantive decision not to vary the original decision of June 1999. In other words, though the Tribunal is too polite to put it this way, the Secretary of State is playing with words. Again, I do not agree. I can see a clear and real distinction between, on the one hand, the decision whether a relevant change of circumstances has been shown triggering a power (and, no doubt, in practice a right) of review, and, on the other hand, a decision on such review whether to maintain, continue, vary or cancel the original decision. One example given by Mr Lewis was where changes in medical understanding suggested a different aetiology for a particular condition than had previously been recognised: such a change would be a sufficient reason to justify a review, but it would remain for consideration whether in any individual case the claimant could establish that the new medical understanding impacted on his particular circumstances. Another example would be where a claimant discovered potentially relevant fresh evidence: the Secretary of State might well decide that that evidence merited the carrying out of a review in order to enable the evidence in question to be assessed, but the eventual substantive decision would depend on an assessment of the actual relevance and the reliability of the evidence in question. I accept that in some cases, of which this may well be a good example, there might be a degree of overlap between the considerations relevant to the threshold question, and, if a review were granted, the considerations relevant to the ultimate decision. But that does not mean that the two exercises are identical. The Secretary of State was in the present case clearly and explicitly deciding only that, because of his understanding of the medical impossibility of subsequent deterioration in hearing caused by the original injury, the fact that Mr Hornsby's hearing had deteriorated did not amount to a relevant change of circumstances.
28. Mr Opperman and Mr Green [counsel for the claimant] in their skeleton argument on behalf of Mr Hornsby, succinctly and helpfully developed orally by Mr Opperman, made three broad submissions which are put as follows:
"(1) The Pensions Appeal Tribunal did in fact have jurisdiction under statute to allow the appeal. (2) Although the PAT's decision stated that the disablement entitlement would not be reviewed, it was in fact reviewed. (3) The right to appeal can be construed as being part of the PAT's system."
29. As to (1), I have largely dealt with this point. Mr Opperman and Mr Green submit that a refusal to review can be treated as a "final assessment of the degree of the claimant's disablement" and so be appealable under section 5(2) of the 1943 Act. That was not, of course, the basis of the Tribunal's decision and, with respect, it seems to me unarguable.
30. As to (2), this is essentially the same point as that made by the Tribunal. Mr Opperman's submission was that the Secretary of State's letters were tantamount to a substantive fresh decision to maintain the original decision of the Pension Appeals Tribunal. I have already rejected that submission. He submitted that it was remarkable that no evidence had been adduced in the form of a witness statement from the author of those letters supporting the construction which the Secretary of State put on what had occurred. In my view, such evidence was wholly unnecessary; the letters in question speak for themselves.
31. As to (3), this is perhaps slightly oddly expressed, but Mr Opperman's point before me was that the decision whether to allow a review in circumstances such as Mr Hornsby's was an important decision and that it was most improbable that Parliament could have intended that claimants in his position should not have a right of appeal in relation to such a decision. I can, however, see nothing surprising in a construction of the statute which has the result contended for by Mr Lewis. It is easy to see why the draftsman might have wished to avoid a situation where a disappointed claimant could invoke an absolute right of appeal simply by seeking a review, or indeed (as it might be) by repeated requests for a review. There is nothing outlandish in a threshold being provided for of the applicability of which the Secretary of State is the only judge. That is indeed, as is well- known, the position with purported "fresh claims" under rule 353 of the Immigration Rules. The Secretary of State's decisions taken in that context must, of course, be fair and rational and they will be susceptible to judicial review if they are not. Mr Opperman says that it is unlikely that Parliament intended claimants to have to go to the trouble and expense of proceedings for judicial review when there was an obvious alternative route for challenging such decisions, namely by appeal to the Tribunal. But the plain fact is that that is precisely the effect of the provisions that Parliament has enacted. As I say, I can see nothing particularly surprising in that result.
32. Mr Opperman also drew my attention in his oral submissions to a statement from Mr Hornsby in his correspondence to the effect that he had been told, it is not quite clear by whom, at the time of the original decision that it could be reviewed after five years; and also to the terms of a standard-form letter from the Veterans Agency responding to an application for a review which includes the phrase "we can increase your war pension if your accepted condition has worsened". He said that it was clear from these materials that Mr Hornsby had been given the impression that a deterioration in his hearing would be a sufficient ground for a review. He accepted, however, that the statements in question, even if they had the meaning which Mr Hornsby asserted, could not alter the legal position as argued in the present case: he relied on them rather in support of his proposition that a review had in fact been carried out. I cannot see that they support that case in any way.
33. For all those reasons, I have reached the clear conclusion that the decision of the Pension Appeals Tribunal dated 27th April 2006 was wrong in law and must be quashed."
"(1) This section applies to any decision of the Secretary of State under section 8 or 10 above (whether as originally made or as revised under section 9 above) which-
(a) is made on a claim for, or an award of, a relevant benefit, and does not fall within Schedule 2 to this Act; or
(b) is made otherwise than on such a claim or award, and falls within Schedule 3 to this Act;
(9) The reference in subsection (1) above to a decision under section 10 above is a reference to a decision superseding any such decision as is mentioned in paragraph (a) or (b) of subsection (1) of that section."
"The kernel of the dispute is to be found in section 12 of the Act. That provides for a "right to appeal to an appeal tribunal" from decisions of the Secretary of State (section 12(2)) but in the case of a decision under section 10 that right appears to be limited by the terms of section 12(9) to a right to appeal only from "a decision superseding" an earlier decision. That provision immediately raises the question: What if a claimant applies under section 10 for a decision superseding an earlier decision, but the Secretary rejects the application on the ground that none of the criteria for making a decision under section 10 had been fulfilled, for instance that there had been no relevant change of circumstances? Would that be "a decision superseding" an earlier decision? Unless every decision in response to the invocation of section 10 amounts to a "decision superseding" an earlier decision, it is not easy to see that that is so. Nevertheless, the Secretary of State accepts that there is, and by reason of article 6(1) of the European Convention of Human Rights, must be a right to appeal before an independent tribunal from the Secretary of State's decisions properly so called. Excepted from that concession lies what Ms Lieven describes as hopeless applications, viz those which do not even invoke any of regulation 6(2)'s criteria for the making of a decision under section 10: in rejecting such hopeless applications the Secretary of State is not making a "decision" at all. He is merely responding to what I suppose might be said to be something which does not amount to an application properly so called .
"In sum, it seems to me that Ms Lieven's submissions and the 6/02 decision analysis have taken a false turning. Prima facie, as the citation from Mr Commissioner Rowland's decision itself indicates, a decision under section 10 based on a finding of one of the relevant criteria is a decision to alter an earlier decision; an earlier decision that has been superseded is a decision which has been altered. That is the natural meaning of the terms "superseding" (the heading of section 10: "Decisions superseding earlier decisions"), "superseded" (section 10(1): "any decision…may be superseded"), and "supersession" (the heading of regulation 6) in this context. The alternative, which is to construe "superseded" as merely meaning "replaced", irrespective of whether the earlier decision is altered or not, would be inconsistent with regulation 6 and the concept that an earlier decision is superseded "on the basis of" something like a change of circumstances, or an error of fact or law in the earlier decision. Moreover, if "superseded" does not mean "altered" or "altered and thus replaced", then there is no word used to express what to my mind is the essential focus of a section 10 decision. The meaning I would ascribe is also consistent with the concept of revision and of revised decisions (section 9). A revised decision is a decision which has not merely been reviewed but altered. That is why the effective date of a revised decision normally goes back retrospectively to the date of the original decision. There is a close affinity between superseded and revised decisions, since, subject to the one month time limit prima facie in place for the concept of revision, both revision and supersession may be grounded on an error of law or mistake of fact. "
"I agree that section 12(9) must be construed so as to give a right of appeal from the rejection by the Secretary of State of a properly constituted application for a decision under section 10. This is required by Article 6(1) of the European Convention on Human Rights, and/or because it cannot have been rationally intended by parliament to give a right of appeal where a properly constituted application results in a decision to alter an earlier decision (where the applicant wishes to challenge the extent of the alteration), but not to confer a right of appeal where the Secretary of State refuses to alter an earlier decision altogether."
EA L BANO CP
(Dated) 21 December 2010