England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MR JUSTICE
NEUBERGER

		Royal Courts of Justice Strand, London, WC2A 2LL
		19th November 2003

Lord Justice Mummery :

The Appeal

1. This is an appeal by the Secretary of State for Defence (the Secretary of State) against the order of Neuberger J dated 4 April 2003. He dismissed the Secretary of State's appeal against a determination dated 14 November 2002 by the Pensions Ombudsman under Part X of the Pension Schemes Act 1993 in favour of the respondent, Mrs Cheryl Hulme.
2. The dispute arises from the treatment of a claim by Mrs Cheryl Hulme, a service widow, for an Attributable Family Pension under the Armed Forces Pension Scheme (the AFPS). Over a lengthy period the AFPS has evolved as an occupational pension scheme for the benefit of the armed forces generally. It contains provisions for age-related retirement pensions, as well as for attributable and non-attributable invaliding and death benefits.
3. This case turns on the interpretation of the relevant provisions of a prerogative instrument, the Queen's Regulations for the Royal Air Force (the QR-RAF), which relate to the determination of the issue whether the death or injury, in respect of which a pension is claimed, was "attributable to service." Similar provisions are contained in other prerogative instruments for each of the other two branches of the armed forces.
4. The short, but important, point of principle and practice affects other cases where injuries and conditions, as well as deaths, have occurred and have given rise to claims under the AFPS.
5. The outcome of the appeal potentially affects the future administration of the AFPS with regard to all branches of the armed forces and the rights of those who have been refused attributable benefits in the past. The possible implications of the decisions below and on this appeal and of government proposals to amend the AFPS in respect of deaths, conditions and injuries occurring in the future have generated correspondence between the Minister for Veterans and interested organisations, such as the Royal British Legion and the War Widows Association of Great Britain.

The Factual Background

6. Mrs Hulme is the widow of Sergeant TG Hulme. He served with the RAF. On 6 June 1996 he was killed in a mountaineering accident on Mont Blanc. He was on leave at that time. He was due to take part in an approved Joint Forces Expedition to Greenland in July/August 1997. In preparation for the Greenland expedition he went on the training expedition to the Alps. It was privately planned. The participants had taken leave and they funded their own travelling expenses.
7. Mrs Hulme received Short Term and Long Term Forces Family Pensions and Children's Pensions for her two daughters. She applied for an Attributable War Widow's Pension under the War Pensions Scheme (the WPS), a state compensation scheme covering cases of disablement or death due to service in the armed forces.
8. At the material time the WPS was administered by the War Pensions Agency on behalf of the Department of Social Security (the DSS). (The WPS is now administered by the Veterans Agency as part of the Ministry of Defence.) The WPS is one of two entirely separate pension schemes for the armed forces, the other being the AFPS. They are administered by different bodies operating under different procedures. It is, however, a requirement of each of them that the death or injury of the serviceman was attributable to service. The point at issue is that, although Mrs Hulme satisfied that requirement under the WPS, she was refused a pension under the AFPS on the ground that her husband's death was not attributable to service. This must appear to be a startling state of affairs to a person in Mrs Hulme's situation. It is necessary to examine how it has come about.

The Attributable Pension Schemes

9. The Defence Council, acting through the Discretionary Awards Panel (the Panel), administers the AFPS. Mrs Hulme applied to the Defence Council for a Long Term Attributable Family Pension under the AFPS. The relevant provisions, which are contained in Chapter 41,Section 5 paragraph 3090 (1) of the QR-RAF, provided:

"Detailed Provisions

(1) Irrespective of the spouse's length of service or type of engagement (i.e. pensionable or otherwise), where an officer or airman dies from causes accepted by the Department of Social Security as attributable to or aggravated by service, his eligible survivors may be awarded an attributable family pension at the discretion of the Defence Council as follows:

(a) If death occurs in service, at the rates set out in….;or

(b) If death occurs in retirement or after discharge, and he was attributably invalided from the service, at the rates of….

(c) Where the marriage took place after retirement or discharge, the rate of attributable pensions will be…"

10. After an initial refusal of her claim under the WPS, Mrs Hulme succeeded on appeal. The DSS accepted that Sergeant Hulme's death was due to an injury attributable to service. That fact was certified by the DSS in accordance with the provisions of Articles 1 and 4 of the Naval, Military & Air Forces etc (Disablement and Death) Service Pensions Order 1983 (SI 1983/883), as amended, (the 1983 Order), which governed applications under the WPS. That decision was reached by applying Article 4(2), which eased the evidential burden on claimants by providing that there shall be no onus on any claimant to prove the fulfilment of the requirement that the death was due to an injury which was attributable to service and that "the benefit of any reasonable doubt shall be given to the claimant."
11. When, however, Mrs Hulme's claim under the AFPS was considered by the Panel on behalf of the Defence Council her application was refused on 8 March 2000 on the ground that her husband's death was not attributable to service, as he was not on duty at the time of his death. On 8 December 2000 her appeal against that decision to a differently constituted Panel was dismissed.
12. Mrs Hulme complained of maladministration to the Pensions Ombudsman. It was in substance a complaint of misinterpretation of the relevant provisions of the QR-RAF. He accepted her contention that the Panel had no power to depart from the decision of the DSS on the issue of attributability. He held that the decision regarding attributability was to be made by the DSS. If it was intended to leave that issue to the Defence Council, there would have been no need to refer to the DSS in Section 5 of the QR-RAF. The Panel was bound, in the exercise of its discretion, to consider all relevant matters and to disregard all irrelevant matters, but it was not entitled to substitute its judgment for that of the DSS on the question whether the cause of death was "attributable to service." On that point it must accept the decision made by the DSS. He remitted the matter for reconsideration.
13. Neuberger J agreed with that conclusion. In addition to the detailed points on the construction of the language of paragraph 3090 he made general observations in the course of his judgment, with which I agree.

"34. I also consider that the conclusion reached by the Pensions Ombudsman accords better with common sense. I readily accept that there is no legal or logical reason why a relevant death should be held to be "due to service" for the purpose of one pension scheme for the Armed Forces, but not "attributable to…service" for the purpose of another pension scheme for the Armed Forces. However, particularly where one scheme, the WPS, specifies the machinery for determining the issue, and the other scheme, the AFPS, specifically incorporates the determination resulting from that machinery, one would not expect different determinations on the issue under the two schemes. One should also bear in mind that the relevant aspect of both schemes involves the dependants of men and women who have been killed when serving in the Armed Forces. To put it at its lowest, it does not seem to me unlikely that those responsible for drafting the Queen's Regulations, and the AFPS in particular, would have shied away from the notion of explaining to such a person that the death of her late husband (or wife or parent) was attributable to service for the purpose of one pension but was not for the purpose of another pension."

Submissions of the Secretary of State

14. The Secretary of State, for whom Mr Crow appears, asserts that the decision of the DSS on attributability is no more than a pre-condition of the exercise of discretionary power by the Panel to award an attributable pension. The decision of the DSS on that issue is only a triggering provision. It is not a final, conclusive or binding determination on the issue of attributability. It does not bind the Panel, which has a discretionary power. In particular, the Panel has power to decide whether there is a proper factual basis for the exercise of its discretion to award a pension. That power is not circumscribed by regulation 3090. If the Panel concludes that the death was not attributable to service, then it would not have any discretion to award an attributable pension. Notwithstanding the reference to the DSS, the Panel retains the power to determine whether a particular death is attributable to service as part of an unfettered discretion to award an attributable pension whenever it considers it fit to do so.

Conclusion

15. In my judgment, the Secretary of State's appeal should be dismissed.
16. The position quite simply is that the Panel misinterpreted paragraph 3090 of the QR-RAF as entitling it to determine afresh whether Sergeant Hulme's death was attributable to service.
17. I agree with Mr Crow that under paragraph 3090(1) the acceptance by the DSS that Sergeant Hulme's death was attributable to service was at least a pre-condition to the exercise of the Panel's discretion to award a pension under the AFPS. If that fact were not accepted and certified by the DSS, there would be no discretion to grant Mrs Hulme's application under the AFPS. The critical question, however, is whether the certified decision of the DSS on attributability is more than a pre-condition, threshold requirement or filter mechanism and also serves the function of concluding that issue, so that the Panel is prevented from substituting a different decision, namely that Sergeant Hulme's death was not attributable to service.
18. In my view, the natural and ordinary meaning of the language used in paragraph 3090(1) is that the DSS would determine the issue whether the death was attributable to service and that it would neither be necessary nor permissible for the Panel to repeat the exercise. The Panel would exercise its discretion under the AFPS on that footing.
19. It was common ground that, if the DSS determined that the death of the serviceman was not attributable to service, that would conclude the issue for the Panel. It would have no discretion to award a pension in such a case. It would not be entitled to exercise its discretion in order to re-visit the issue and arrive at a different conclusion from the DSS.
20. It was pointed out that the decision of the DSS under the 1983 Order was reached by the application of an unusual reverse burden of proof, which only applied to a decision made "for the purposes of this Order." It was contended that it should not therefore have conclusive effect for the purposes of an entirely different scheme, such as AFPS, fulfilling distinct and different functions. That contention does not, however, answer the point that a reference to the DSS's acceptance of attributability to service is expressly included in paragraph 3090(1) of QR-RAF. The reference naturally carries across to the AFPS and links into it the decision already made by the DSS under the WPS. The decision of the DSS would not have been mentioned in the QR-RAF at all unless it was to have some effect for the purposes of the AFPS.
21. I return to the key question: what is the effect of the cross reference? It is pointed out by Mr Crow that paragraph 3090 does not expressly state that the DSS determination is final and conclusive or that it is binding on the Panel.
22. Equally, however, it does not expressly state that the DSS determination is only provisional and that it is necessary for the Panel to investigate again the issue which has already been officially investigated and certified by the DSS and satisfy itself on the material before it that the death was attributable to service.
23. If, as I have indicated, the Panel is prevented by paragraph 3090 from satisfying itself whether the DSS was correct in its determination that the death was not due to an injury attributable to service, it is difficult to discern the policy considerations which would entitle it to re-visit a DSS determination to the contrary effect. The language and scheme of the paragraph suggest that the determination of the DSS on the issue of attributable service is binding on the Panel. Indeed, it would be surprising if the Panel could use its discretion to question the correctness of a fact, which has been certified under statute as the case, and the very existence of its discretion was expressly conditioned on that fact.
24. Mr Crow submitted that there were indications supporting a contrary interpretation. He drew attention to (a) the width of the discretion conferred on the Defence Council in its decisions on pensions claims; (b) the general right and duty of a public authority to determine for itself whether there is a proper factual basis for exercising discretion in a particular case, without being bound by the decision of another public body, which may be erroneous; (c) the fact that the DSS determined the attributability issue by applying the unusual reverse onus of proof, whereas the Defence Council is free to decide other issues for themselves on applying the lesser standard of the balance of probabilities (e.g. the contributory negligence or misconduct of the serviceman, who has been killed or injured) and without being bound by a decision of the DSS on those other issues. I see the force of those general factors, but, in my judgment, when read in the context of the attributable pension schemes, the natural and ordinary meaning of the language in paragraph 3090 must prevail. On the issue whether an injury or death was attributable to service there was only one official decision-maker. That was the DSS. Its decision on that question necessarily preceded an AFPS application to the Panel and was meant to be binding on it.

Result

25. I would dismiss the appeal.

Mr Justice Munby

26. I agree.

Lord Justice Sedley

27. I also agree.
Order: the appeal to be dismissed; the appellant pay the respondent's costs of the appeal to be subject to detailed assessment if not agreed. (Order does not form part of the approved judgment)