England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
ADMINISTRATIVE DIVISION
MR JUSTICE OWEN
CO/6701/2004

		Royal Courts of Justice Strand, London, WC2A 2LL
		07/04/2009

Lord Justice Aikens :

1. This is a renewed application for permission to apply for judicial review of decisions of the Pensions Appeal Tribunal ("PAT") which were given to the parties on 8 May 2006. Owen J refused permission on 5 March 2008. The matter then came before Mummery LJ on paper. By an order dated 20 November 2008 he directed that the renewed application should be heard by a court of three Lords Justices and that the principal respondent, the Secretary of State for Defence, ("SSD"), should be represented at the hearing. He also ordered that if this court decided to grant permission to appeal Owen J's refusal it should hear the substantive application for judicial review forthwith.
2. Mr Bunce is currently very unwell and he was not able to leave his house in Devon to attend the hearing of this application on Wednesday 18 February 2009. A telephone link with his house was set up in Court 75 and Mr Bunce was able to make oral submissions and assist the court by answering various questions through this link. The court was also greatly assisted by extensive written submissions that Mr Bunce had prepared before the hearing. Mr Steven Kovats, on behalf of the SSD, also made helpful submissions, both in writing and orally. We heard argument on both the issue of permission and the substantive issues in the case.
3. At the end of the hearing Laws LJ announced that the court would grant permission and that the judicial review would be allowed. He stated that the court would order that the decision of the PAT given on 8 May 2006 would be set aside; the matter would be remitted to a different PAT for a new hearing on the issue of assessment of the applicant's disabilities and that the reasons for the court's decision would be given at a later date. This we do now. I will refer to Mr Bunce either by name or as the appellant.

The origins of the case

4. This case has a very long history. I have taken what I believe to be the uncontested facts from the findings of the PAT. The appellant was born on 18 October 1932. Between 14 March 1951 and 6 April 1953 he did National Service in the RAF. In April 1951 he was stationed at RAF Driffield in East Yorkshire. He was given 36 hours leave. He took his motorcycle and rode south, intending to go to his home in Richmond on Thames. About 10 miles outside Northampton his motorbike left the road whilst negotiating a bend. Mr Bunce sustained some injuries in the ensuing crash. The nature and extent of those injuries and their consequences are still the subject of argument 58 years later.

Mr Bunce's injuries as noted contemporaneously

5. Mr Bunce was taken to Northampton General Hospital. The contemporary records of Northampton General Hospital, which the PAT accepted were reliable and constituted the main contemporary objective evidence of the hospital treatment that Mr Bunce received, set out the injuries treated. These were: (1) a chip fracture at the base of the proximal phalanx of the right thumb; (2) a fracture of the surgical neck of the left humerus with a backward dislocation; (3) concussion. The notes also record that Mr Bunce stated that he "..thinks that he had a black out for ½ minute – quite lucid on admission".
6. Whilst Mr Bunce was in hospital, X – rays were taken of his shoulder, skull and right thumb. Manipulation of the shoulder revealed nothing abnormal. The fracture dislocation was reduced under a general anaesthetic. Mr Bunce underwent an operation under general anaesthetic at the hospital on 28 April 1951 to reset the fracture of the humerus and reduce the dislocation of the left shoulder. The findings of the PAT record that he was discharged from hospital on 3 May 1951 and referred as an outpatient to Richmond Hospital.
7. Between 27 August 1951 and 11 February 1952 Mr Bunce was admitted to the RAF Headley Court Hospital for treatment of left deltoid palsy consequent upon the fracture to the neck of the left humerus. On 11 February 1952 Mr Bunce returned to duty after a Medical Board pronounced him fit for both ground and aerial duties "forthwith". The board noted Mr Bunce's disabilities as "fracture humerus left" and "deltoid palsy left" and that those disabilities were caused by the accident on 28 April 1951. No other injuries were noted. Mr Bunce had been examined by an orthopaedic specialist on 1 February 1952 but he did not note any other injuries either.
8. Whether the injuries I have described were the full scope of the injuries suffered as a result of the motorbike accident in April 1951 was in dispute at the hearing of the PAT. Mr Bunce asserted that as a result of the accident he had been in a coma for some hours; that he had injured his skull and neck; that he had suffered crushed vertebra and that he had also suffered a loss of hearing, quite independently from any noise related loss of hearing he had suffered during his RAF service.
9. After he was demobbed, Mr Bunce took various jobs as an engineer until 1988 when he ceased to work. He told us that he had not been able to sustain jobs for long because of his disabilities. He then lived in France for some time but returned to live in Devon with his wife.
10. In 1998 Mr Bunce was the victim of a serious physical assault whilst living in Devon. This caused an increase in the pain he was suffering and a serious rise in blood pressure.

Mr Bunce's claims for a disablement pension whilst on RAF service

11. On 26 October 1994 Mr Bunce claimed a disablement pension under the Naval, Military, and Air Forces etc (Disablement and Death) Service Pension Order 1983 (SI 1983/883) in respect of disabilities that were due to injuries suffered in the motorcycle accident, which he said had occurred during and as a result of his service in the RAF. He therefore claimed that the disabilities were attributable to that service. He claimed disability in respect of a broken upper arm, dislocated shoulder, concussion and nerve damage to the left shoulder.
12. Various decisions were made by the Secretary of State following this claim. A disablement pension was first made in which Mr Bunce was assessed as having disablement of 40%. That was increased to 70% on 26 November 1997. Both the 40% and 70% decisions constituted "interim" assessments, that is to say, not final assessments within the meaning of the Pensions Appeal Tribunals Act 1943.^[1] I will refer further to the terms of that Act below.
13. In a decision of 10 April 2003, the SSD also accepted that Mr Bunce was suffering from bilateral noise induced sensorineural hearing loss due to service in the RAF. However, the assessment in respect of that was less than 20% and so, by virtue of the statutory instrument then and now in force, that did not result in any overall increase in the percentage of assessment on which entitlement to benefit was based.

Mr Bunce's appeals to the Pension Appeals Tribunal and the court proceedings that have resulted from them

14. Mr Bunce then lodged three appeals to the PAT. These comprised: (i) an appeal challenging the scope of his entitlement to disablement pension concerning the crash in 1951. Mr Bunce sought a wider entitlement, because he asserted that he had suffered further injuries as a result of the accident. (ii) An appeal on the assessment percentage. Mr Bunce said that the 70% figure should be higher. (iii) An appeal concerning a decision that he was not entitled to a War Pensioners Mobility Supplement.
15. On 5 October 2004 the PAT struck out the first two appeals on the ground that Mr Bunce had withdrawn them. He denied this. However, those two decisions of the PAT have now become subsumed in the present dispute. This court is not concerned with the third appeal I have referred to above.
16. On 31 December 2004 Mr Bunce lodged a claim for judicial review of the PAT decisions of 5 October 2004. On 30 March 2005 Bean J ordered that the court proceedings be stayed for 3 months pending a review by the SSD of the issues of entitlement, percentage of assessment and the start date for any award. Bean J ordered that "the papers be thereafter placed before a judge for further consideration".
17. I will say straight away that, in my judgment, the order of Bean J was clearly not an order granting judicial review of the PAT decisions, despite Mr Bunce's assertion to the contrary in his written submissions to us. The order was intended to be and was simply an order that the matter of whether or not to grant judicial review would be considered by a judge after the 3 month adjournment and in the light of the decision of the SSD.

Further decisions of the Secretary of State for Defence and appeals

18. The review by the SSD took longer than three months. On 19 May 2005 the SSD issued a decision in which he reviewed earlier decisions about the scope disability and percentage of disablement of Mr Bunce and so the level of disability pension to be awarded to Mr Bunce. The SSD decided: first, that an earlier decision (in 2001) concerning the type of injury and consequent disablements attributable to the motorbike accident, in respect of which Mr Bunce was entitled to a pension, should not be altered. The injuries/disablements were thus identified as being: (1) fracture dislocation of the left shoulder; (2) left deltoid nerve palsy; (3) head and neck injury; (4) cervical spondylosis; (5) chronic pain personality syndrome; (6) post traumatic stress disorder: (7) bilateral noise induced sensori-neural hearing loss 1951 to 1953.
19. Secondly, the SSD decided not to alter a decision given on 10 April 2003 to the effect that the claimant was suffering from bilateral sensori-neural hearing loss that was not due to service noise, but which was neither attributable to nor aggravated by Mr Bunce's service in the RAF. Thirdly, the SSD decided not to review the 70% disability assessment. Fourth and lastly, the SSD decided that there were no grounds for reviewing the date from which the disablement benefit had been awarded.
20. Mr Bunce appealed again to the PAT in respect of the last three of those decisions. The appeals in respect of the hearing loss and the date of the claim were dismissed by a PAT decision of 16 March 2006. The Pensions Appeal Commissioner Rowlands granted leave to appeal both those decisions and he heard argument on those matters together. He allowed the appeal in respect of the hearing loss and remitted it to another tribunal for further evidence and decision. The tribunal had not met by the time of the hearing before us on 18 February 2009. As for the "date of the claim" appeal, we understand that it also had not been determined prior to 18 February 2009.

The appeal to the Pension Appeals Tribunal on the 70% assessment and its decision of 3/8 May 2006

21. The appeal against the assessment of disablement at 70% was heard by a PAT in April 2006. Its decision is dated 3 May 2006 but it was handed down on 8 May 2006. The PAT held as follows: (i) there was to be a reduction in the assessment from 70% to 30%, which was to be an "interim" assessment; (ii) this new assessment should run for the period from 30 June 2004 to 2 May 2005. Those decisions are the focus of the present application for judicial review. I will have to set out the PAT findings in some detail when I come to the substance of Mr Bunce's case.

The present application for judicial review

22. Following the PAT decisions, Mr Bunce filed an application form for urgent consideration seeking a stay of the reduction in assessment. On 15 June 2006, Kenneth Parker QC, sitting as a Deputy High Court Judge, refused the application. He also "discontinued" the whole claim for judicial review on the basis that the decisions of the PAT in 2004 had been overtaken by the review by the SSD and the subsequent decisions of the PAT. Although Mr Bunce has complained in his Outline Argument that this matter should not have been dealt with by a Deputy High Court judge, in my view that is an irrelevant argument. The substance of Mr Bunce's application is now before this court, whatever may have happened below.
23. On 24 July 2006 Mr Bunce filed a notice seeking renewal of the applications for permission to obtain judicial review. The SSD took no point on that being out of time. At the hearing on 18 February 2009, Mr Kovats reaffirmed that the SSD did not intend to take any of the technical objections that he might have done to the form or timing of Mr Bunce's current application for judicial review.
24. On 17 December 2007, Mr Bunce issued an application notice in the High Court in which he sought three orders in relation to the decision of the PAT dated 3 May 2006. First, he sought permission for judicial review of that decision. Secondly, he sought to set aside that decision. Thirdly, he sought an order for disclosure of documents in relation to it.
25. Those applications came before Owen J on a renewed oral application on 5 March 2008. He dismissed all three, holding that there was no merit in any of them. As I have already said, the present applications are the result of the order of Mummery LJ that the matter be heard by three Lord Justices with the respondents present.

The principal issue before this court

26. The principal issue before the court is whether the decision of the PAT issued on 8 May 2006 can be challenged as a matter of law. Mr Bunce relies on a decision of Langstaff J in The Queen on the application of Patrick Brendon Scanlon v The President of the Pensions Appeal Tribunal and the Secretary of State for Defence ("the Scanlon case").^[2] That decision concerned the extent of a PAT's jurisdiction to review findings of fact as to the entitlement to a war pension when the PAT had before it an appeal only on the assessment of the level of disabilities that had been accepted by the SSD as being due to injury attributable to war or other relevant service. Mr Bunce submits that the PAT in his case made exactly the same errors as were made by the PAT in the Scanlon case. He submits that this means that the PAT had committed errors of law and so its decision could not stand.

The statutory framework

27. The provisions concerning pensions and other grants in respect of disablement and death due to service in the naval, marine, military, air forces, nursing and auxiliary forces of the Crown are now set out in the Naval, Military and Air Forces etc (Disablement and Death) Service Pensions Order 2006 ("the 2006 Order").^[3] This order has replaced an equivalent SI of 1983 under which Mr Bunce's claims were first put forward.^[4] These Orders in Council were made pursuant to powers set out in section 12(1) of the Social Security (Miscellaneous Provisions) Act 1977, which it is not necessary to set out here. The relevant Articles of the 2006 Order are found in Part II, IV and V of the Order. They are Articles 5, 6, 34, 41, 42, and 44. I have set those out in an Annex to this judgment.
28. Appeals from decisions or the Secretary of State concerning war and other types of service disability pension are dealt with (so far as is relevant to the present case) by Sections 1 and 5 of the 1943 Act. I have also set out those sections in the Annex to this judgment, but I will attempt to summarise their effect.
29. Section 1(1) of the 1943 Act stipulates that if a claim in respect of a disablement of any person of the type referred to in the subsection is rejected "by the Minister on the ground that the injury on which the claim is based" is not attributable to any relevant service or does not fulfil the conditions set out in the subsection, then the Minister has to notify the claimant of his decision. The claimant then has a right of appeal to the PAT on whether the claim was rightly rejected. He can appeal on either the issue of attribution or the issue of fulfilment of the conditions stipulated in section 1(1).
30. Section 5(1) deals specifically with the situation when a Minister had made an "interim assessment" of a claimant's "degree of disablement". Once the Minister has done so he must thereupon notify the claimant. The subsection provides that there is then a right of appeal to the PAT from an interim assessment made by the Minister. The PAT may either uphold the minister's assessment or may "alter the assessment" in one or both of two ways, as set out in that section. The two ways are either "(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".

What was the scope of the reviewing power of the Pension Appeals Tribunal in this case?

31. Article 41 of the 2006 Order stipulates that a claim for disablement can be granted, provided that it is certified, by or on behalf of the SSD, that the disablement is due to an injury which is attributable to service, or existed or arose during service and has been and remains aggravated thereby. Article 42 of the 2006 Order stipulates how the degree of disablement will be assessed. The basic exercise is to make a comparison between the disabled person and a normal healthy person of the same age and sex. Article 42(2)(d) provides that the degree of disablement will be assessed on an "interim basis" unless a final assessment is possible.
32. It is clear that the decision of the SSD of 19 May 2005 was an "interim assessment" one within the meaning of Article 42(2)(d) of the 2006 Order and the 1943 Act. Therefore, by section 5(1) of the 1943 Act, Mr Bunce had a right of appeal to the PAT on the issue of assessment. But, in these circumstances, given the wording of section 5(1) of the 1943 Act, the limit of the jurisdiction of the PAT was to consider the assessment of the amount of disability due to the injury that was attributable to the relevant service, i.e. due to the motorbike accident on 28 April 1951. The PAT had no jurisdiction to consider the decision of the SSD which had identified the disabilities that the Secretary of State accepted were due to an injury which is attributable to service or which is due to an injury which existed before or arose during service and has been and remains aggravated by that service.
33. I therefore accept the analysis of Langstaff J in the Scanlon case that where there is an appeal to a PAT under section 5(1) of the 1943 Act, on the issue of assessment only, the PAT must start upon the basis of the Minister's acceptance that there is a disability (or there are disabilities) within the terms set out in Article 41(1) of the 2006 Order. The PAT cannot, for the purposes of its assessment of the level of the disablement, challenge the Secretary of State's decision on the existence of the disablement or whether the disablement is due to an injury that is attributable to service or whether the disablement is due to an injury which existed before or arose during service and has been and remains aggravated by that service.
34. Therefore, when the PAT is considering an assessment only appeal, if it makes findings either about the existence of the disablement or whether it is due to an injury attributable to service or an injury that existed before or arose during service and has been and remains aggravated by service, for the purpose of reducing the assessment of the disability, it exceeds its jurisdiction.^[5] To do so is to go beyond the jurisdiction granted by section 5(1) of the 1943 Act. I appreciate that in some cases there may be difficulty in defining the borderline between whether a disability exists and the assessment of the extent of the disability for the purposes of assessing the disability pension under the statutory provisions.^[6] But, for the reasons which I will give below, there is no such difficulty in this case.

Analysis of the Pensions Appeal Tribunal's Decision dated 3 May 2006.

35. Paragraph 5 of the PAT's decision issued on 8 May 2006 states:

"This Decision assesses War Pensions Disablement(s) accepted by the Secretary of State under the following medical labels:

1. Fracture dislocation of the left shoulder

2. Left deltoid nerve palsy

3. Head and neck injury

4. Cervical spondylosis

5. Chronic pain personality syndrome

6. Post traumatic stress disorder

7. Bilateral noise induced sensorineural hearing loss 1951 to 1953.

36. Paragraph 9 of the decision states, correctly, that it is an appeal under section 5 of the 1943 Act. It states "Accordingly, we have not taken into account circumstances that did not obtain at the date of the Secretary of State's decision under appeal".
37. Paragraph 11 of the Decision sets out the PAT's findings of fact. Paragraph 11 (a) to (f) set out the history of the accident and Mr Bunce's hospital treatment. Paragraph 11(g) refers to a further "pro – forma" record that Mr Bunce had obtained relating to the injuries and the hospital treatment. The PAT decision states, at the end of that sub – paragraph, that in the view of the PAT the pro – forma document is "not reliable evidence relating to the RTA of 1951 and we do not accept it as such".
38. Sub-paragraph (h) of paragraph 11 refers to further evidence that Mr Bunce had produced which had "emerged a long time after the event" but which, in his submission, demonstrated that in 1951 there was a "crushed vertebra problem". At the end of that paragraph the PAT states that it thought it "improbable that there is any connection between any crushed vertebra injury and the RTA in 1951. The explanation may well lie in other events such as mentioned below".
39. At paragraph 11(k), the Decision records:

"It is not in dispute that for the purposes of entitlement under the Service Pensions Order the only relevant injury sustained by the appellant in service was the RTA in 1951".

40. Paragraphs 11(l) to (n) of the PAT Decision record the further history of Mr Bunce. At paragraph 11(o) the PAT turns to the "specific disablements accepted by the Secretary of State".
41. The decision deals first with noise induced sensori-neural hearing loss disablement and confirms that the assessment cannot be taken into account because it is less than that required in each ear. This is not the subject of the present application.
42. At paragraphs 11 (q) and (r) the Decision considers post traumatic stress disorder, which was item 6 of the list it had set out at paragraph 5, being one of the seven War Pension Disablements accepted by the Secretary of State. Paragraphs 11 (q) to (e) review the evidence before the PAT, in particular a locum consultant's report of 28 August 2001 on which the SSD's award of a disablement pension for post traumatic stress disorder was, apparently, based. The PAT refers to its own analysis of the evidence concerning the accident and Mr Bunce's medical history. The Decision then continues, in the middle of paragraph 11(r):

"It is therefore probable that the diagnosis [of PTSD] was, although in good faith, therefore made on a basis of material mistake of fact. This is in our view such as to question the diagnosis at least in so far [as] it relates to the accident of 1951. That is not to say that a diagnosis of PTSD is wrong. That is not for us to say. But rather that in our view given the 50 years that separated the accident of 1951 and the diagnosis in 2001, we find it hard to see how any symptoms of PTSD causally related to service rather than some other events not related to service in the RAF 1951 – 1953 (such as the assault), actually affected the appellant at the material time for the purposes of this assessment".

43. Those statements clearly show that the PAT was drawing a different conclusion from the SSD on the question of whether the disability of post traumatic stress disorder was due to the motorbike accident in service on 28 April 1951. In argument, Mr Kovats very properly accepted that the wording of paragraph 11(r) appeared to show that it was the PAT's view that any post traumatic stress disorder noted in 2001 was not due to the accident in 1951. He therefore accepted that there was force in Mr Bunce's argument that it was illegitimate for the PAT to draw this conclusion, given the limited scope of review that it had, so that the PAT had erred in law in this respect.
44. The Decision then considers, at paragraph 11(s), the disablement due to Chronic Pain Personality Syndrome, which is item 5 of the list at paragraph 5 of the Decision. The PAT explains that the conclusion that this disablement is attributable to the motorbike accident is based on a medical officer's report of 12 November 2001. It is stated that this report in turn relied on the report of the locum consultant psychiatrist's report dated 28 August 2001, which referred to problems of serious pain largely related to the neck.
45. In paragraph 11(t) of its Decision, the PAT analyses the bases for these conclusions. Its own conclusion, on the evidence it has, is that there was no significant head or neck injury as a result of the 1951 accident such as could give rise to Chronic Pain Personality Syndrome. Its finding at the end of paragraph 11(t) is as follows:

"There was in our view no significant brain injury in 1951 such as to give rise to any long term consequences. That is not to say that Mr Bunce didn't develop neck problems at some later date unrelated to RAF service, but merely that the extent of the head or neck injury in 1951 was very limited, as above, and any consequential condition such as disability arising from chronic pain personality syndrome cannot in our view be satisfactorily understood as being related to the 1951 accident".

47. That conclusion also contradicts the SSD's decision that the Chronic Pain Personality Syndrome was due to the motorbike accident. It is clear that the PAT was going outside the limits of its jurisdiction and wrongly gave a view on whether that particular disablement was due to an injury attributable to service.
48. In paragraph 11 (u) the PAT states that the conditions relating to the left shoulder injury and the left deltoid nerve are "clearly referable to the RTA in 1951". The PAT then comments on the evidence concerning these injuries and what Mr Bunce has suffered since 1951 in relation to them.
49. In paragraph 12 of the Decision, the PAT sets out its reasons for its conclusion that the assessment of disablement must be reduced from 70% to 30%. Paragraph 12(c) of the Decision states:

"…while we have to proceed on the basis of the disablements as actually awarded by the Secretary of State, "due to service" means that it is also necessary for us to consider how far, if at all, any problems of disability are actually due to service – rather than to factors arising after the end of service in the RAF 1951 to 1953".

50. This paragraph misstates the function that the PAT has to perform on an assessment appeal. It is not entitled to challenge the Secretary of State's decision that a particular disability was due to an injury that was attributable to service or that a particular disability was due to an injury that existed before or during service and has been and remains aggravated by that service. All that the PAT can do on an assessment appeal is to consider the determination that has been made by the Secretary of State of the degree of disablement due to service, in accordance with the provisions of what is now Article 42 of the 2006 Order. Therefore, in my view the PAT erred in law in stating its task as it did in paragraph 12(c).
51. The PAT reviewed the facts and its own findings in paragraphs 12(g) to (j) of its Decision. The PAT's conclusions in those sub – paragraphs can be summarised as follows: (1) the fracture dislocation of the left shoulder and the left deltoid nerve palsy were the result of the 1951 accident. (2) There was no significant sensori-neural hearing loss that was not due to noise, which was due to the accident. (That was a summary of another appeal which has since been overturned by Pensions Appeal Commissioner Rowlands and remitted to another tribunal). (3) There was no significant hearing loss due to head injury caused by the 1951 accident. (4) There was no significant neck injury caused by the 1951 accident. (5) Any neck problems, spinal or otherwise cannot be due to the accident or to service. (6) Given the findings on PTSD and Chronic Pain Personality Change (set out in paragraph 11 to which I have referred above), "any relevant symptoms relating to the 1951 accident are minimal". Although they may exist, they are "little if at all due to service".
52. The effect of the PAT's conclusions in paragraph 12 is that it considered that the only operative injuries which call for assessment of disability are the shoulder and the deltoid nerve injuries. The overall conclusion of the PAT is stated at paragraph 12(m), as follows:

"In our view the assessment of 70% for the conditions listed in paragraph 5 above is significantly out of proportion to what can reasonably be said to be the disablement due to service. Our view of the appropriate assessment is given in paragraph 2 above, which is in our view generous. The assessment should be renewed in two years".

53. Overall, it is clear from the way that the PAT analysed the matter in paragraphs 11 and 12 of its decision that it effectively concluded, contrary to the decision of the SSD, that the neck injury, cervical spondylosis, Chronic Pain Personality Syndrome and Post Traumatic Stress Disorder from which Mr Bunce was currently suffering, were not due to the motorbike accident. In reaching these conclusions it stepped over the line between (1) assessment of the degree of disability and (2) whether a particular disability is due to an injury that is attributable to the relevant service. It used its conclusions on the issue of causation or attribution as the basis for reducing the assessment of disability from 70% to 30%. It thus exceeded the limited jurisdiction it had when considering an assessment appeal.
54. I well understand that in cases where the current disability on which the application for a pension under the 2006 Order is made is said to be due to an injury in service many years ago, it may sometimes be difficult to distinguish between the task of deciding the cause of the current disability and assessing the extent of it. But I am quite satisfied that the whole approach of the PAT in considering the issue of assessment of the level of disability was to challenge the basis of fact and evidence on which the Secretary of State had concluded that the seven medical conditions listed at paragraph 5 of its Decision were due to the motorbike accident.^[7] It even questioned the Secretary of State's decision that the accident was attributable to Mr Bunce's National Service.
55. Therefore the PAT erred in law and its Decision cannot stand. Thus the judicial review must be allowed.

Lord Justice Wall

56. I agree.

Lord Justice Laws

57. I also agree.
A N N E X

Pensions Appeal Tribunals Act 1943

……

"1. — (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 [^F1 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 [^F2 any relevant service]; and

(b) does not fulfil the following conditions, namely, that it existed before or arose during [^F2 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 [^F2 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.

……….

"5. — (1) 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, the Minister makes an interim assessment of the degree of the disablement, he shall notify the claimant thereof and . . . . . . ^F1 an appeal shall lie to the Tribunal from the interim assessment . . . ^F1 and from any subsequent interim assessment, and the Tribunal on any such appeal may uphold the Minister's assessment or may [^F2 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 [^F3 this section] the expression "interim assessment" means any assessment other than such a final assessment as is referred to in the next following subsection.

……….."

"The Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 2006

…………

"5. General conditions for Part II

(1) Under this Part, awards may be made in accordance with this Order in respect of the disablement of a member of the armed forces which is due to service before 6th April 2005 and may be made provisionally or upon any other basis.

……….

(3) Except where paragraph (4) applies, an award under this Part of this Order shall not be made in respect of—

(a) noise-induced sensorineural hearing loss; or

(b) a related condition or symptom if it is accompanied by noise-induced sensorineural hearing loss

unless the degree of disablement from that loss alone is assessed as being at least 20 per cent.

(4) Where the degree of the disablement in respect of noise-induced sensorineural hearing loss, or in respect of such hearing loss and a related condition or symptom, is assessed at less than 20 per cent, and a claim for an award in respect of that disablement was made prior to 7th January 1993, payment of any award resulting from that claim shall be made as though paragraph (3) were omitted.

…………

6. Retired pay or pension for disablement

A member of the armed forces the degree of whose disablement due to service before 6^th April 2005 is not less than 20 per cent may be awarded retired pay or a pension at whichever of the rates set out in the Table in Part II of Schedule 1 is appropriate to his rank or status and the degree of his disablement.

………….

PART IV

Claims

34. Making of claims

(1) Subject to paragraph (4) and article 35, it shall be a condition precedent to the making of any award of any pension, allowance or supplement mentioned in paragraph (2) (including any such award which follows an earlier award or which follows a period which, had there been an award for that period, would have ended in accordance with article 33(1)) that the person making the claim shall have—

(a) completed and signed a form approved by the Secretary of State for the purpose of claiming that pension, allowance or supplement payable under this Order; and

(b) delivered that form either to an appropriate office of the Secretary of State or to an office of an authorised agent.

(2) The pensions, allowances and supplement to which paragraph (1) applies are—

(a) retired pay or a pension payable under article 6;

…………

41. Entitlement where a claim is made in respect of a disablement, or death occurs, more than 7 years after the termination of service

1) Except where paragraph (2) applies, where, after the expiration of the period of 7 years beginning with the termination of the service of a member of the armed forces, a claim is made in respect of a disablement of that member, or in respect of the death of that member (being a death occurring after the expiration of the said period), such disablement or death, as the case may be, shall be accepted as due to service for the purpose of this Order provided it is certified that—

(a) the disablement is due to an injury which—

(i) is attributable to service before 6th April 2005, or

(ii) existed before or arose during such service and has been and remains aggravated thereby; or

……….

(3) A disablement or death shall be certified in accordance with paragraph (1) if it is shown that the conditions set out in this article and applicable thereto are fulfilled.

(4) The condition set out in paragraph (1)(a)(ii), namely, that the injury on which the claim is based remains aggravated by service before 6th April 2005 shall not be treated as fulfilled unless the injury remains so aggravated at the time when the claim is made, but this paragraph shall be without prejudice, in a case where an award is made, to the subsequent operation of article 2(5) in relation to that condition.

(5) Where, upon reliable evidence, a reasonable doubt exists whether the conditions set out in paragraph (1) are fulfilled, the benefit of that reasonable doubt shall be given to the claimant.

(6) Where there is no note in contemporary official records of a material fact on which the claim is based, other reliable corroborative evidence of that fact may be accepted.

…….

42. Determination of degree of disablement

(1) The following provisions of this article shall apply for the purposes of the assessment of the degree of the disablement of a member of the armed forces due to service before 6th April 2005.

(2) Subject to the following provisions of this article—

(a) the degree of the disablement due to service of a member of the armed forces shall be assessed by making a comparison between the condition of the member as so disabled and the condition of a normal healthy person of the same age and sex, without taking into account the earning capacity of the member in his disabled condition in his own or any other specific trade or occupation, and without taking into account the effect of any individual factors or extraneous circumstances;

(b) for the purpose of assessing the degree of disablement due to an injury which existed before or arose during service and has been and remains aggravated thereby—

(i) in assessing the degree of disablement existing at the date of the termination of the service of the member, account shall be taken of the total disablement due to that injury and existing at that date, and

(ii) in assessing the degree of disablement existing at any date subsequent to the date of the termination of his service, any increase in the degree of disablement which has occurred since the said date of termination shall only be taken into account in so far as that increase is due to the aggravation by service of that injury;

(c) where such disablement is due to more than one injury, a composite assessment of the degree of disablement shall be made by reference to the combined effect of all such injuries;

(d) the degree of disablement shall be assessed on an interim basis unless the member's condition permits a final assessment of the extent, if any, of that disablement.

(3) Where the average hearing loss at frequencies of 1, 2 and 3 kHz is not 50 dB or more in each ear, the degree of disablement in respect of that loss shall be assessed at less than 20 per cent.

(14) The degree of disablement certified under this article shall be the degree of disablement for the purposes of any award made under this Order.

………..

44. Review of decisions, assessments and awards

(1) Subject to the provisions of paragraphs (3), (4) and (5) and to the provisions of paragraph (8), any decision—

(a) 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.

(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.

(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 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.

(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—"

…….

(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.

(7) Notwithstanding the provisions of paragraph (4), (5) and (6), where a decision accepting a claim for pension is revised, the Secretary of State may, if in any case he sees fit, continue any award based on that decision at a rate not exceeding that which may from time to time be appropriate to the assessment of the degree of disablement existing immediately before the date of the revision.……….

71. Revocations, general and transitory provisions

………..

(5) 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.

………."

Note 1    See: section 5(1): “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”. Thus it does not matter whether the assessment is in respect of a long term or short term period or long or short standing injury or disablement.    [Back]

Note 2    [2007] EWHC 471 (Admin)    [Back]

Note 3    Statutory Instrument 606 of 2006.    [Back]

Note 4    Article 71(5) of the 2006 Order provides: “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”.    [Back]

Note 5    See para 36 of the judgment of Langstaff J. [2007] EWHC 471 (Admin);    [Back]

Note 6    See also the judgment of Langstaff J in the Scanlon case , [2007] EWHC 471 (Admin); at para 10.    [Back]

Note 7    See para 11(c) of its Decision.     [Back]