IN THE FIRST-TIER TRIBUNAL				      SD/00377/2009, SD/00290/2009
WAR PENSIONS AND ARMED FORCES COMPENSATION CHAMBER

DECISION

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.

REASONS

 1.  In both these cases the Secretary of State applied to strike out the appeals under rule 8(2)(a) of the Tribunal Procedure (First-tier Tribunal) (War Pensions and Armed Forces Compensation Chamber) Rules 2008 (the ‘Procedure Rules’),  which provides that the Tribunal must strike out proceedings which are outside the tribunal’s jurisdiction.  In each case the basis of the application under rule 8(2)(a) was that a refusal to exercise the powers of review of earlier decisions, currently conferred by Article 44 of the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 2006 (the "2006 Order")  could not be the subject of an appeal. I shall call the claimant in SD/00377/2009 Mr R and the claimant in SD/00290/2009 Mr C.

2.   Mr R’s claim is in respect of alcohol abuse, but paragraph 32 of Part II of Schedule 6 to the 2006 SPO excludes “consumption of alcohol” from the definition of “injury” for which awards can be made under the 2006 Order. In Mr R’s case the Secretary of State therefore also applied to strike out the proceedings under rule 8(3)(c) of the rules, which provides that the Tribunal may strike out the proceedings if it considers that there is no reasonable prospect of the  appellant’s case succeeding.

3.  The proceedings in Mr R’s case have however taken a somewhat unusual course.   At the hearing of these applications I directed written submissions on the alcohol abuse issue.    I was later informed by Mr R's legal representatives that they had ceased to act for him and that Mr R's mother, who had conducted these proceedings on the claimant's behalf prior to the hearing, would again act as his representative. Following receipt of written submissions by Mrs R in response to my direction at the hearing, the Treasury Solicitor wrote on 4 November stating that the Secretary of State had decided that Mrs R’s further submissions raised issues that merited further consideration, and that the criteria for triggering a further review were therefore satisfied.  The letter also stated that the Secretary of State no longer relied on the additional ground for striking out the application.

4.  In a letter dated 8 November, Mrs R nevertheless asked me to rule on the submissions made on Mr R’s behalf at the hearing because Mr R might be disadvantaged in relation to future decisions stemming from any review decision if I did not do so. However, any such decisions will carry appeal rights.  Because the Secretary of State has withdrawn the application to strike out Mr R's appeal under both limbs of the application, I consider that I should dismiss the application in response to that withdrawal, but since the arguments in Mr R's case have informed the conclusions which I have reached on the construction of the relevant statutory provisions as a whole, it will still be necessary to refer to the facts of Mr R’s case.  My decision will, in effect, therefore deal with the submissions on the jurisdiction issue in Mr R’s case, even though the application to strike out his appeal has been withdrawn.

5.   The facts which are relevant to these applications can be stated quite shortly.  Mr R served in the Royal Artillery from 13 February until he was discharged on medical grounds on 22 March 2002.  The principal invaliding conditions were 1) recurrent adjustment disorder with mixed anxiety and depressive symptoms and 2) alcohol abuse.  On 16 May 2002 Mr R was notified that the condition recurrent adjustment disorder was accepted as caused by service.  Mixed anxiety and depressive symptoms were accepted as part and parcel of recurrent adjustment disorder, but the condition alcohol abuse was not accepted as either caused or made worse by service.  Disablement in respect of the accepted conditions was assessed at 6-14%, which was later increased to 15-19% on appeal.

6.  On 22 May 2006 Mr R made a late appeal against the decision rejecting alcohol abuse as having been caused or made worse by service.  On 21 December 2006 the Pensions Appeal Tribunal refused to extend the time for bringing the appeal and subsequently refused permission to appeal against that refusal to the Pensions Appeal Commissioner.  On 4 May 2007 Mr R applied for a review of the 16 May 2002 decision in respect of alcohol abuse, but on 17 May 2007 he was notified that there were no grounds to review the decision.   On 25 October 2008 Mr R made a fresh review application in respect of the rejection of alcohol abuse as having been caused or made worse by service.  On 27 November 2008 he was again notified that there were no grounds to review that decision and appealed against the most recent refusal to review on 24 July 2009.  The Secretary of State applied for the appeal to be struck out, stating that he was "of the opinion that there has not been a relevant change of circumstances in Mr R's case and therefore there are no grounds to undertake a review".  At the oral hearing of that application on 15 April 2010, I adjourned the hearing, together with the application in Mr C's case, for detailed legal argument.

7.  Mr C served in the Army from 31 October 1988 until 15 April 1997.  On the day after his discharge he made a claim for war disablement pension in respect of back injury caused by running while weight bearing.  On 26 August 1997 the condition spondylosis L4 was accepted as having been aggravated by service and disablement was assessed as 1-5%.  Following an unsuccessful attempt to have the assessment reviewed on the ground of deterioration, a further review claim was made on 7 October 2004, on the basis that Mr C was now suffering from sciatica.  That application was refused on the ground that sciatica had been taken into account when deciding the original claim.  On 22 July 2009 Mr C made a further review application, in which he again said that he was suffering from sciatica in addition to spondylosis.  The application was referred for medical advice, which was to the effect that any worsening could not be due to service, and (since his condition was aggravated rather than attributable to service) Mr C was notified that there were no grounds to review his assessment of disablement.  Mr C having appealed against that decision on 21 August 2009, the Secretary of State applied to strike out his appeal also.

8.  Although the decisions in these cases were taken under the 1983 Service Pensions Order, there are no material differences between the relevant provisions of that Order and those of the 2006 Order, and Article 71(5) of the 2006 Order provides that "anything done or begun under a provision of the Service Pensions Order 1983 which has been re-enacted under this Order shall be treated as having been done or begun under the corresponding provision of this Order.  It will therefore be convenient to refer to the review powers in the form in which they appear in the 2006 Order.  

9.  The starting point is the very wide review powers conferred by Article 44(1):

	"(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."

10.  The Secretary of State's review powers are however circumscribed in certain circumstances.   If an award has previously been made, it can be reviewed only in the circumstances specified in Article 44(2): 
	
	"(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."

11.  Rights of appeal against decisions of the Secretary of State are conferred by sections 1 to 5 of the Pensions Appeal Tribunals Act 1943.  Section 1 provides:

“(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. 

12.  In R (Secretary of State) v Pensions Appeal Tribunal  [2008] EWHC 2168 (the ‘Hornsby’ case) it was accepted that a decision reviewing or refusing to review an earlier decision was appealable, but the Administrative Court held that there was no right of appeal against a decision by the Secretary of State not to undertake a review.  However, in Hornsby there was no reference to the provisions of section 3 of the Human Rights Act and Article 6 of the Convention, to which the Court of Appeal had regard in Wood v Secretary of State for Work and Pensions [2003] EWCA Civ 53 when reaching a different conclusion in relation to parallel provisions in the social security legislation.  By section 6(3) of the Human Rights Act 1998 it is of course unlawful for the First-tier Tribunal to act in a way which is incompatible with a Convention right, and I directed this hearing in order to consider whether there is any conflict between the decisions in Wood and Hornsby.

13.  In Hornsby the claimant had appealed unsuccessfully to the Pensions Appeal Tribunal against a decision by the Secretary of State to maintain an earlier assessment of disablement in respect of bilateral noise induced sensorineural hearing loss, so that any further review of the assessment could only be carried out under what is now Article 44(3) of the 2006 Order on the ground of a change of circumstances.  The claimant applied for a new review of his assessment because of a further deterioration in his hearing, but the Secretary of State’s consistent position has been that deterioration in hearing loss cannot be due to service once exposure to a source of harmful noise has ended.  The Secretary of State therefore notified the claimant that there were no grounds for carrying out a review, and the claimant sought to appeal against that decision.

14.  The tribunal decided that it had jurisdiction to entertain the appeal, but In judicial review proceedings brought by the Secretary of State to quash the tribunal’s decision Counsel on behalf of the Secretary of State submitted that, since the decision not to carry out a review was not a specified decision, it could not carry a right of appeal.  Underhill J. held:

	“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.” 
15.  In Wood the Court of Appeal was concerned with the provisions for superseding social security benefit decisions which were introduced by the Social Security Act 1998.   Prior to that Act, sections 25 and 30 of the Social Security Administration Act 1992 conferred on decision makers powers of review on specified grounds, but those powers were replaced by new powers of revision and supersession under sections 9 and 10 of the 1998 Act.  The circumstances in which a decision can be superseded are prescribed by the Social Security and Child Support (Decisions and Appeals) Regulations 1999, and by regulation 6(2)(a)(i) of those regulations a decision can be superseded if the decision “is one in respect of which there has been a relevant change of circumstances since the decision had effect…”.  

16.  The claimant in Wood was in receipt of an indefinite award of the higher rate of mobility component of disability living allowance.  On 13 December 2000 an application was made on his behalf for a supersession of the awarding decision under section 10 of the 1998 Act, on the basis that the claimant’s care needs had changed.  On 9 March 2001 the Secretary of State made a supersession decision not only refusing the care component of disability living allowance, but also removing the mobility component.  A tribunal dismissed the claimant’s appeal against that decision, but the Social Security Commissioner allowed the claimant’s appeal against that decision because the tribunal had failed to make adequate findings of fact with regard to the claimant’s walking ability.

17.  The direction of the Commissioner remitting the appeal for rehearing by a fresh tribunal made no reference to any need for the new tribunal to make a finding of a change of circumstances with regard to entitlement to the mobility component of disability living allowance, but stated that “the tribunal must accept that the threshold criterion in regulation 6(2)(a)(i) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 is satisfied.”  That direction was in accordance with the decision of a Tribunal of Social Security Commissioners in R(DLA) 6/02, in which it was held that regulation 6 of the Decisions and Appeals Regulations prescribes threshold, and not outcome, criteria for supersession.

18.  The Court of Appeal held that the Commissioner had erred in law in failing to direct the new tribunal to consider whether there had in fact been a change of circumstances relevant to entitlement to higher rate mobility component.  However, the court went on to consider whether section 12 of the 1998 Act confers a right of appeal against a refusal of to carry out a supersession under section 10.  Sections 12(1) and 12(9), in the form in which they were at the relevant time provided:

“(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.”

19.  Rix LJ summarised the issue as follows:

“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 [24].

20.  Although the court was unanimous in holding that there was a right of appeal against a refusal to supersede, there was a division of opinion as to how, as a matter of statutory interpretation, that result was to be achieved.  The majority (Rix and Dyson LJJ) considered that regulation 6 of the Decisions and Appeals Regulations specified outcome, rather than threshold, criteria for superseding a decision, and that a decision only superseded an earlier decision if it was one which effected an alteration of the earlier decision.  However, the majority considered that the words “a decision superseding” in section 12(9) of the 1998 Act covered any decision taken pursuant to the power to supersede.  Arden LJ took the view that that the supersession grounds specified by the 1999 Regulations were threshold rather than outcome criteria, but that a decision could supersede an earlier decision even if it left the earlier decision unaltered.  On that basis, it was not necessary to read words into section 12(9) for it to cover a decision which refused to supersede a decision which had been taken previously.

21.  It is clear from paragraph 31 of the judgment in Hornsby that the decision in that case rests on an assumption that the review ground in Article 44(3) provides for a threshold which must be surmounted before a review can take place, rather than an outcome on the basis of which  a review decision is made. However, for the reasons given below, I have reached the conclusion that the question of whether there is a right of appeal against refusals to review does not depend on whether the review grounds in Article 44 are threshold or outcome criteria.  The significance of Wood for these applications is that the Court of Appeal was unanimous in holding that all refusals to supersede an earlier decision should carry appeal rights, even though they differed with regard to the way in which that result was to be achieved.   I therefore do not consider it necessary to analyse in detail the reasoning of the Court of Appeal on the question of whether the supersession grounds provided for by the 1999 Decisions and Appeals Regulations are threshold or outcome criteria. 

22.  However, the Secretary of State’s submissions in this case in relation to the review powers conferred by Article 44 of the 2006 Order closely mirror the reasoning of the Tribunal of Commissioners in relation to supersession in R(DLA) 6/02, in which it was held that the supersession grounds under the 1999 Decisions and Appeals Regulations were threshold criteria, and that the availability of judicial review  as a means of challenging a refusal to undertake a review was an adequate remedy for the purposes of Article 6 of the Convention.  It is therefore worth noting that Rix LJ, with whom Dyson LJ agreed, rejected that approach [42]:
“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. “
23.  The view of the majority in Wood that a decision is only a supersession decision if it alters a previous decision created considerable difficulty in bringing refusals to supersede into the ambit of section 12(9) of the 2008 Act, so as to give a right of appeal against such a decision.  However, it is evident that the majority regarded it as necessary to give section 12(9) a strained construction in order to achieve that result.  Although the Secretary of State conceded that section 12 of the 1998 should be construed so as to give a right of appeal against a refusal to supersede, Dyson LJ expressed his agreement with that concession as follows:
“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.” 
24.  Ms. Broadfoot, counsel instructed by the Treasury Solicitor on behalf of the Secretary of State, submitted that the authority of Hornsby is unaffected by Wood.  She submitted that ‘review’ in Article 44 of the 2006 Order is a process whereby an earlier decision is looked at again, which is triggered in different circumstances depending on what is to be reviewed, and that once a review has been triggered the earlier decision can be continued, varied or set aside.  Article 44 reflects a distinction between a decision whether to carry out a review and the outcome of the review, and a triggering event must occur before a review can take place.  The structure of the provision makes it clear that the Secretary of State may legitimately inquire whether there is a reason for a review to take place, particularly since any decision which can be reviewed will have carried rights of appeal.   The review grounds in Article 44 should therefore be construed as threshold criteria.
25.  So far as Wood is concerned, Ms. Broadfoot submitted that that case was concerned with a different statutory scheme.  Under the 2006 Order there is no difference between revision and review, since a review under Article 44 can effectively encompass both.  Again, unlike the war pensions scheme, in the social security scheme a claim is not treated as subsisting once a decision on the claim has been made.  In Wood the Court of Appeal had to resolve a tension between the broad appeal rights conferred by section 12(1) of the 1998 Act and the apparent restrictions imposed by section 12(9) and, although both parties agreed that there should be a right of appeal against a refusal to supersede, the court was not unanimous on the route by which that result was to be achieved.   By contrast, section 5A of the 1943 Act makes express provision for decisions to be specified as carrying appeal rights and regulations 3 and 3A of the regulations made pursuant to that power both refer to a decision “which is made in exercise of the relevant Order”.  As Ms. Broadfoot pointed out, in Wood there was agreement between the parties that Article 6 of the Convention required there to be a right of appeal against a refusal to supersede, and in any event the decision of the Court of Appeal on that point was obiter   Ms. Broadfoot indicated that the Secretary of State was content to proceed on the basis that the rights in question in this case fell within Article 6 of the Convention, but she submitted that a claimant’s right to challenge refusals by way of judicial review to carry out a supersession satisfied the requirements of that Article.
26.  Mr Hugh Lyons, of Hogans Lovell International LLP, acting pro bono, submitted that Hornsby was wrongly decided.  The court in that case had not been referred to Wood, and there was no conceivable reason why Article 6 should require a right of appeal against a refusal to supersede a social security decision, but not against a refusal to review a decision under the War Pensions Scheme.  Mr Lyons submitted that the dicta  in Hornsby, that there is nothing outlandish in a threshold being provided for, of which the Secretary of State is the only judge, cannot be reconciled with what Dyson LJ said in Wood, and submitted that there are sufficient similarities between the supersession provisions of the social security legislation and the review provisions of the war pensions scheme for the reasoning in Wood to apply to both schemes.
27.  The basis of Ms. Broadfoot’s submission that  judicial review was an adequate remedy for refusals to review for Article 6 purposes was the decision of the House of Lords in Begum v London Borough of Tower Hamlets [2003] 2 AC 430, in which judgment was given only thirteen days after the judgment in Wood.
28.  I do not consider that Begum assists Ms. Broadfoot.   That case was not concerned with the judicial review powers of the High Court as such, but with similar powers conferred on the county court under section 204 of the Housing 1996 on appeals on points of law against homelessness decisions taken by housing authorities.  The House of Lords held that the quality of the review provided for by section 204 was sufficient to meet the requirements of Article 6(1) of the Convention.
29.  The House of Lords reached that conclusion in the context of a statutory scheme in which the county court’s appellate jurisdiction only comes into play once the original decision maker has made the factual determinations which are necessary to decide its statutory obligations to an applicant for housing.  However, if the Secretary of State declines to undertake a review under Article 44 of the 2006 Order, he is thereby necessarily refusing to carry out an investigation into the facts in order to determine whether a claimant is entitled to any variation in or cancellation of a previous decision.  Any challenge to such a refusal could presumably only succeed on Wednesbury grounds, so that on the basis of Ms. Broadfoot’s submission an applicant for a review under Article 44, unlike an applicant for housing under the Housing Act 1996, would not be entitled as of right to a determination of the facts relevant to the application.  That difference seems to me to be a far more likely explanation of why the Court of Appeal in Wood did not consider the availability of judicial review as satisfying the requirements of Article 6 than the reason suggested by Ms. Broadfoot, that is, that the Court of Appeal in Wood was unaware of the Begum line of authority.  I regard that explanation as particularly unlikely in view of the fact that Lord Justice Dyson (as he then was) was a member of the Court of Appeal in both cases.
30.  The basis of the decision in Hornsby is that the specified decisions in Schedule 1A to the Pensions Appeal Tribunals (Additional Rights of Appeal) Regulations 2001 do not include a decision refusing to undertake a review under Article 44.  However, Schedule 1A does not include any reference to Article 44, so that if there is a right of appeal against any decision made under Article 44, as both parties agree that there is, its source must be found elsewhere.
31.  As Ms. Broadfoot pointed out, there is no provision in the war pensions scheme equivalent to section 8(2)(a) of the Social Security Act 1998, which brings a claim to an end once a decision on the claim has been made.  There therefore appears to be nothing in the war pensions scheme to prevent the Secretary of State from making more than one decision on a claim, subject to the provisions of Article 44 of the 2006 Order.  If there has been no previous award on the claim, as in Mr R’s case, there is no requirement under Article 44(1) of the 2006 Order to establish any review ground in order for the Secretary of State to exercise his powers to vary or cancel the previous decision.   If an award has previously been made, as in Mr C’s case, it will be necessary for one of the review grounds in Article 44(2) to be satisfied for any alteration of the earlier award to take place.
32.  Irrespective of whether the relevant review power in any particular case is Article 44(1), (2) or (3) of the 2006 Order, the outcome of a review application which refuses to alter an earlier decision is a decision under Article 44(6) to “maintain or continue” the decision, assessment or award.  I agree with Ms. Broadfoot that the term ‘revise’ is used in Article 44 in a different sense to that in which it is used in section 8 of the Social Security Act 1998, under which revision is in effect in most cases a process for changing decisions shortly after they have been made.  I consider that in Article 44 “revise” bears a meaning much closer to its meaning in the former social security legislation, that is, a decision which changes a previous decision, assessment or award.
33.  Once a decision has been made in accordance with Article 44(6) of the 2006 Order, there seems to me to be no reason why it should not carry appeal rights under section 1 or section 5 of the 1943 Act, according to whether it is an entitlement or an assessment decision.  Section 1 confers a right of appeal in prescribed circumstances “where any claim is made in respect of the disablement of any person”, made under any of the specified schemes.  Section 5 confers a right of appeal against an interim or a final assessment in “…the case of any such claim as is referred to in section 1”.  Since under the war pensions legislation a claim remains in existence even after the initial decision on the claim has been made, sections 1 and 5 seem to me to be apt to encompass both the initial decision on a claim and any later decisions on the same claim taken pursuant to the Secretary of State’s review powers.  I consider that it is for that reason that the war pensions legislation creates no appeal rights against review decisions as such, unlike the position in the social security scheme where appeal rights are needed against supersession decisions because the original claim will have been extinguished once the decision which it is sought to supersede has been made.
34.  Article 44(6) applies to both the review powers which require a review ground to be established (Articles 44(2) and (3)), and to Article 44(1), where there is no such requirement.  Consistently with the approach taken by all the members of the court in Wood, it seems to me therefore that the words “maintain or continue…the decision, assessment or award…” must cover any refusal to alter a previous decision, whether the reason for the refusal is because any necessary review grounds have not been established, or because the Secretary of State considers that the original decision remains correct.  In Wood Dyson LJ considered that it cannot have been rationally intended to give a right of appeal where a properly constituted application results in a decision to alter a previous decision, but not to confer a right of appeal where the Secretary of State refuses to alter the earlier decision.  That observation seems to me to apply with even greater force where the distinction which is sought to be maintained is the even narrower one between on the one hand a refusal to undertake a review, and on the other hand a decision not to alter a previous decision after a review has been carried out.  In Mr C’s case the Secretary of State expressed his decision as a refusal to undertake a review, even though the review application was actually referred to a medical adviser and rejected on medical grounds.  I cannot accept that Mr C’s appeal rights should depend on a distinction which I consider not only to be contrary to Article 6 of the Convention and irrational for the reasons which I have given, but which is also elusive to the point that it is unworkable in practice.
35.  The conclusion which I have therefore reached is that, subject to a possible exception in respect of hopeless applications, the Secretary of State is bound to make a decision in accordance with the terms of Article 44(6) of the 2006 Order in every case where a properly constituted application for a review has been made under Article 44(1) or (2).  I do not consider that it makes any practical difference whether the review grounds in Article 44 are threshold or outcome criteria, since in either case a refusal to undertake a review on the basis that the review grounds have not been made out will result in a decision under article 44(6) to maintain or continue the previous decision, assessment or award.  If, as in these cases, the Secretary of State refuses to carry out a review, his decision must be treated as a decision maintaining or continuing the original decision, and will accordingly carry rights of appeal under section 1 or 5 of the 1943 Act, as the case may be.  I therefore decline to strike out the appeal in Mr C’s case.
36.  Although it may be open to debate whether a first instance court or tribunal is bound by a decision of the Administrative Court, I consider myself bound by the decision in Hornsby in relation to the provisions with which the case was actually concerned.  It may well be that the court would have reached a different conclusion if the human rights arguments which were fully explored in Wood had been brought to the court’s attention, but the decision was given in the exercise of the Administrative Court’s supervisory jurisdiction over this tribunal.  The actual decision can in any case be supported on the basis that it was concerned with a hopeless application, of the kind which Rix LJ had in mind in Wood-see paragraph 44 of the decision.  However, Hornsby was a decision on Article 44(3).  These cases have been concerned with Articles 44(1) and (2), and I do not regard myself as bound by Hornsby in relation to those provisions.
37.  I am extremely grateful to both advocates for their assistance.
38.  For those reasons, my decision is as set out above.

						(Signed)	
									EA L BANO CP  
   						 (Dated)		21 December 2010