England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		27th July 2005

1. MR JUSTICE HUGHES: The Secretary of State for Defence moves for Judicial Review of a decision of the President of the Pensions Appeal Tribunals, by which he refused to strike out an appeal of an appellant called Heath pursuant to Rule 9 of the Pensions Appeal Tribunal (England and Wales) Rules 1980 SI 1980/1120. In form therefore, the application for Judicial Review appears to be a specific one. In fact it is not. The appeal of Mr Heath has now for some time been disposed of by Mr Heath's withdrawal being accepted by the relevant Pensions Appeal Tribunal. What is in issue is considerably more general.
2. The background to these proceedings is a most unhappy disagreement over the management of cases which are pending before the Pensions Appeal Tribunals. The issue relates to the management of appeals. The point in question comes down to the validity, and if valid the meaning, of Rule 9. Rule 9(1) provides that:

"An appellant may at any time before the hearing give notice to the Pensions Appeal Office that he desires to withdraw his appeal, and thereupon the appeal should be struck out."

Rule 9(2) provides:

"Where, after a notice of appeal has been given, the Secretary of State decides the issue arising on the appeal in favour of the appellant, the Secretary of State shall give notice of his decision to the Pensions Appeal Office and the appellant, and the appeal should be struck out."

Rule 9(3) provides:

"In an assessment appeal the making of a new increased assessment for the period under appeal (whether covering additional disabilities or not) shall be deemed to be a decision by the Secretary of State in favour of the appellant and, on notice given in accordance with paragraph (2), the appeal shall be struck out, without prejudice to any appeal against that decision."

3. As to Rule 9(1), the Pensions Appeal Tribunals, through their President, take this view. First, that Rule 9(1) requires a decision by the Tribunal whether there is a true withdrawal or not. Second, that, for the purpose of making that decision, the Secretary of State should prepare a statement of case of the kind that he would prepare for the substantive appeal.
4. In furtherance of those views, the President has issued two practice directions, numbers 2/2003 and 1/2004, echoed also in a training note of January 2004. Those directions, among other provisions, give effect to the views that I have set out. In addition, in written submissions made in these proceedings earlier, the Pensions Appeal Tribunals, through their President, have called into question the vires of Rule 9. Lastly, in such written submissions the tribunals have also put in issue the compatibility of Rule 9 with Article 6 of the European Convention on Human Rights.
5. The background to those contentions, so far as the Tribunals are concerned, appears to be the contention of the Tribunals that, something of the order of 20 per cent of cases in which some kind of apparent notice of withdrawal is received turn out, upon inspection, to be cases which the appellant does not wish to withdraw. The appellants are, of course, often very elderly, nearly always by definition disabled and often ill. Almost invariably they have no legal advice, though they may have the support of organisations such the Royal British Legion and equivalent organisations and although they are visited by officers of the Veterans Association, which exists under the auspices of the Ministry and fulfils, in effect, a dual role as adviser to the pensioners and administrator of the scheme on behalf of the Secretary of State.
6. The Secretary the State takes the view, helpfully expressed to me today by counsel on his behalf: first, that Rule 9 is intra vires and valid; second, that it is appropriate for the Tribunal to reach a decision as to whether a notice of withdrawal is a true withdrawal or not; third, that a current standard letter sent to such appellants, together with a questionnaire, could usefully be rephrased in some ways for that purpose; but fourth, that it is not open to the Tribunals for the purpose of making that decision to require of the Secretary of State the preparation of a statement of case.
7. Although the issue raised by the decision in the case of the appellant, Mr Heath, arose under Rule 9(1) (withdrawal), the submissions which the Secretary of State wishes to make about the Tribunals' general practice extends also, to some extent, to comparable disagreements arising under Rules 9(2) and 9(3).
8. It is to be observed that the effect of Rule 9(3) appears to be the rather surprising one that even a marginal adjustment by the Secretary of State in the favour of the appellant has the effect of causing the appeal to be struck out, even though there remains a substantial issue between the appellant and the Secretary as to the correct level assessment. In effect, the rule requires the appellant to start again.
9. This case has been before the court before. On 1st February of this year, Walker J adjourned it for further discussions to take place between the Secretary of State and the Tribunals and, whilst I do not probe into the details of them, I have been helpfully supplied with some subsequent correspondence and memoranda which indicate that discussions have proceeded. Although they have not reached conclusions, they have clearly achieved something. Today the Secretary of State is represented by counsel and is prepared for what is listed as a substantive hearing of the application for Judicial Review and would like the case heard. The difficulty is that there is no representation on the other side. Mr Beard very properly invites me to proceed nevertheless. He says that, although he could not contend the case is urgent, it needs deciding because the number of cases affected by it will increase with time. He draws attention to the fact that, until about a week ago, the Pensions Appeal Tribunals were represented by counsel who had been instructed, it would appear, by the Treasury Solicitor, who in turn had been instructed by the Department of Constitutional Affairs. Counsel, thus instructed, put in a skeleton argument and took in it quite fundamental and important points relating to the vires of Rule 9, its compatibility with Article 6 and its meaning. No-one, however, appears. Mr Beard asked me to conclude that that is because a considered decision has been arrived at by the Pensions Appeal Tribunals and/or the Department for Constitutional Affairs and that, if they have arrived at that conclusion and have decided not to be represented, the proper course for this court to take is to proceed in their absence. If that were so, that consequence might well be the correct conclusion. But it does not appear that it is so.
10. By a letter of 12th July 2005, the Department of Constitutional Affairs wrote for information to the Secretary of State saying, among other things, this:

"We do not consider ourselves able to represent the PAT or to replace it in some way as a defendant. It is an independent judicial body..."

"We will not seek to contest the remaining matters before the Court. We are not, however, in a position to agree to an order."

The Treasury Solicitor accordingly wrote to the chief clerk of the Administrative Court stating that he has now been disinstructed and could not represent the Pensions Appeal Tribunals from here on. Accordingly, counsel would not be appearing at this hearing. He added:

"We do not know what representation, if anything, the Pensions Appeal Tribunals will have at the hearing. They could suggest only that there would be direct correspondence with the President. There has been a letter from the President."

11. He is presently out of London and, in any event, the issues raised, whilst they may be informed by the practical experience of the President, are appropriate not for personal submission by him but for legal submission by counsel properly instructed.
12. This is accordingly a general point of significance for a large number of cases pending now and to be pending in future in front of the Tribunals. Whilst I sympathise with the Secretary of State and with Mr Beard, I do not consider it appropriate for that issue to be decided upon the hearing of one side of the argument only. What I propose to do is to adjourn the case and to ask, through the Administrative Court Office, for the Attorney General to consider providing the court with counsel to act as an amicus in order to present the arguments on either side. It may be in the end that the issue is a comparatively narrow one but it is nevertheless one of general application of some importance. It does not seem to me that, regrettable as the additional delay is, that the disadvantages of such delay outweigh the obvious advantages of a decision based upon proper argument on both sides.
13. There you are Mr Beard.
14. MR BEARD: I am most grateful my Lord. Are there any steps that might sensibly be taken to set in place a timetable for dealing with this as expeditiously as possible? I realise that, in appointing an amicus, the matter is being referred to the Attorney General but nonetheless, if your Lordship might give indications that, although this case is not urgent, because of the length of time and indeed, frankly, the manner in which matters have been dealt with, the Secretary of State is very keen that these matters should be dealt with as expeditiously as possible. One thought that the Secretary of State had would be whether it would be sensible at this juncture to pencil in a listing, perhaps back before your Lordship, for a substantive hearing since that might, at the very least, inform those considering appointment and how to go forward that these matters do need to be dealt with.
15. MR JUSTICE HUGHES: How long is it going to take? Half a day?
16. MR BEARD: No time estimate space to be longer than two hours.
17. MR JUSTICE HUGHES: Half a day plus judgment I should have thought.
18. MR BEARD: At most. If the issue was as narrow as vires 9(1) it may be a lot shorter.
19. MR JUSTICE HUGHES: Well, I do not think it is as narrow.
20. MR BEARD: I understand my Lord.
21. MR JUSTICE HUGHES: It seems to me that it clearly extends to the meaning of 9(1), if valid, but even there the issue is comparatively narrow. It boils down to the statement of case.
22. MR BEARD: It does, my Lord. Whilst one never wants to assume that barristers cannot separate the donkeys from their hind legs, even in relation to those two matters, two hours seems plenty or half a day at most.
23. MR JUSTICE HUGHES: Quite. From your point of view, you are ready now, although you would need to look at whatever submissions are advanced on the other side by the amicus, if he is appointed. In any event, it is not vacation business but there is no reason why it could not be tried at the beginning of October, is there?
24. MR BEARD: I see no reason at all. No, those behind me are pleased to have this matter resolved.
25. MR JUSTICE HUGHES: In that event, I shall not reserve it to myself because I shall be on circuit and it is more desirable that it is dealt with promptly than it is kept in one pair of hands. But I shall direct that it be listed on the first available date after the beginning of term, which is 2nd October, I think; that the listing office note that there has already been considerable delay; and that there are cases depending on this one. The first available date after the beginning of term, time estimate half a day. Is there anything that I can do for you?
26. MR BEARD: I do not believe so. I am most grateful to your Lordship.
27. MR JUSTICE HUGHES: Well, there it is Mr Beard. You will understand the reasons. Thank you very much indeed. The costs will have to be reserved, I suppose.
28. MR BEARD: Sadly, yes.
29. MR JUSTICE HUGHES: I think they must be. Costs reserved -- or in the cause?
30. MR BEARD: I think, given the nature of this particular case, reserved is perhaps the most appropriate.
31. MR JUSTICE HUGHES: Yes, I think you are right. Very well. It would be nice, Mr Beard, that, whatever else it came to, it did not come to an issue as to costs between publicly funded departments.
32. MR BEARD: I think that is undoubtedly not going to be the issue.
33. MR JUSTICE HUGHES: All right, thank you very much indeed.