QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| NIGEL PAUL HODDER
|- and -
|PENSIONS APPEAL TRIBUNAL
Hearing dates: 4 July 2008
Crown Copyright ©
The Hon. Mr Justice Burnett :
- Depressive Disorder;
- Personality Disorder;
The Claimant himself has long believed that he suffers only from PTSD, all attributable to his service. Be that as it may, the Secretary of State initially took the view that none of these conditions was attributable to the Claimant's service or aggravated by it. The Claimant appealed that entitlement decision to the Tribunal under section 1 of the Act and contended that all his psychiatric problems were attributable to the bullying he sustained whilst in the Royal Navy. His intention was to argue that the only condition from which he suffered was PTSD. That appeal came before the Tribunal on 16 February 2005.
"2. That the decision of the Pensions Appeal Tribunal dated 16 February 2005 to disallow appeals brought in respect of Personality and Depressive Disorder be quashed.
3. That the appeal be remitted to a differently constituted Tribunal of the Pensions Appeal Tribunal … for fresh consideration."
The Hearing Before the Tribunal on 3 April 2007
"1. The Decision of the Tribunal is that the Secretary of State's Assessment is revised as below.
2. This Decision determines the following level of disablement 30% which having regard to its findings and other considerations (as below) the Tribunal considers to be reasonable.
For the period starting 23/07/02 and ending 02/04/09
3. This Assessment is interim.
4. This Decision assesses War Pensions Disablement(s) accepted by the Secretary of State under the following medical label:
POST TRAUMATIC STRESS DISORDER
5. The appellant appeared at the hearing.
6. The appellant was represented at the hearing.
7. The Tribunal considered the Statement of Case, evidence given by the appellant and proceedings at the hearing.
Reasons for the Tribunal's Decision
8. This appeal arises under Section 5 of the Pensions Appeal Tribunals Act 1943 (as amended). We have applied the legal framework set out in that Act and in Articles 8 and 9 of the Naval, Military and Air Forces etc (Disablement and Death) Service Pensions Order 1983 (as amended). Accordingly we have not taken into account circumstances that did not obtain at the date of the Secretary of State's decision under appeal.
9. Having assessed all the evidence the Tribunal's findings of facts material to the appeal are, in summary:
Mr Hodder's evidence to the Tribunal is that the condition PTSD has taken over his life to such an extent that he has become totally isolated and Mr Hodder feels that he has been seriously ill for a very long period. Mr Hodder said that he has violent outbursts; road rage has in the past prevented him from driving and that he has no social life or any leisure or pleasure interests. Mr Hodder does however drive to ………. Adderbrooks (sic) hospital once a month to see his therapist, his parents are unwell due to a stroke (his mother) and Alzheimers (his father) and Mr Hodder told the tribunal that to some extent the roles are reversed as previously his mother cared for him but now he helps his mother. Mr Hodder told the Tribunal he is intelligent. This is reflected in Mr Hodder's presentation and grasp of the evidence in support of his war pensions claim. Mr Hodder was not sure what he would do to fill the gap left by the amount of time he had hitherto devoted to his claims. The evidence of the Veterans Agency Board is that Mr Hodder only suffers from PTSD and his assessment is confined to that condition.
Having heard Mr Hodder's evidence the Tribunal takes the view that the proper level of assessment for the disability is 30% until April 2009 given that Mr Hodder is functioning as a covert (sic) to a limited degree, driving, keeping in touch with world events and despite his condition he is able to conduct and produce well argued research."
"The evidence of the Veterans Agency Board is that Mr Hodder only suffers from PTSD and his assessment is confined to that condition."
The Evidence on Behalf of the Claimant
"12. There were then more detailed and technical discussions about appeals (b) and (c) and in particular, appeal (b) relating to the two labels, "personality disorder" and "depressive disorder". During the course of those discussions the Chairman set out to both me and the VA representative the Panel's view as to how matters could and probably should proceed. The Chairman drew my attention to Rule 9(1) of the Tribunal's Rules. Rule 9(1) relates to circumstances where an Appellant will be permitted to withdraw his or her appeal. Within the context of Rule 9(1) the Chairman invited me to consider what would happen in the event that Mr Hodder withdrew his appeal (b). If Mr Hodder did this then the point made by the Chairman was that the Panel, when considering appeal (c) would have to proceed solely on the basis that the only psychiatric condition or label causing Mr Hodder's disability was the recognised label of PTSD.
13. After setting out the views of the Panel to both the VA representative and me, the Chairman invited comment from both of us. The VA representative made no comment on the Chairman's analysis as to how matters would have to proceed if Mr Hodder dropped appeal (b). I then obtained clarification from the Chairman of the Panel's views. Once again the Chairman confirmed both to me, the VA representative and Mr Hodder that in the event that Mr Hodder withdrew appeal (b), the Panel could not take into account any conditions or symptomology other than Mr Hodder's PTSD when assessing the percentage level of his disability under appeal (c). I understood this to mean that Mr Hodder would therefore be assessed as someone suffering from PTSD but with no other conditions of the type referred to in appeal (b), in other words his situation would be viewed in the round as one derived from PTSD alone and not any other condition in tandem with that.
14. I took lengthy instructions from Mr Hodder. It took some time for me to explain to Mr Hodder the discussions we had had with the Panel. At first Mr Hodder was reluctant to agree to the Chairman's suggestion that he withdrew his appeal (b). This was because from a personal perspective, Mr Hodder felt that it was and would be important for him to prove in a judicial setting first of all the fact that he has at no time suffered from a "personality disorder" and secondly, that any description of his psychiatric condition as a "depressive disorder" by the VA or anyone else was really part and parcel of his PTSD. After some time, however, and in particular, after lengthy discussions with Mr Hodder's mother, Mr Hodder instructed me to seek the Tribunal's permission to withdraw appeal (b). These instructions were of course on the basis that by so doing, the Tribunal when assessing Mr Hodder's level of disability under appeal (c), would only take into account the accepted label, namely PTSD.
15. We appeared back before the Tribunal. I formally sought permission from the Chairman to withdraw Mr Hodder's appeal (b) on the basis that by so doing, the Tribunal would only be able to consider Mr Hodder's level of disability over the period 23.7.02 to 2.4.09 having regard solely to Mr Hodder's PTSD. On that basis the Chairman on behalf of the Tribunal consented to the withdrawal of that appeal.
"4. On the day of the hearing, Mr McGhee, who was representing Mr Hodder, introduced me to the Tribunal panel and explained what evidence I would be giving. In the event, I was not given an opportunity to speak because the chairwoman of the Tribunal indicated that they already accepted that Mr Hodder did not have a personality disorder and that there was therefore no issue on which for me (sic) to give evidence. I understood from the chairwoman's comments that the Tribunal had accepted that the only psychiatric disorder Mr Hodder had was PTSD and that they would therefore go on to assess him on that basis.
5. Following this, I left the hearing room and went outside and told Mr Hodder that the Tribunal had accepted that he only had PTSD."
Mr Blacker, who also made a statement of the same date, confirms Mr McGhee's account. He made notes of what occurred, albeit that those notes were not attached to his statement. His account is in the following terms:
"4. On the day of the hearing I offered to take notes for Mr McGhee and he accepted my offer. In the event I took some nine pages of notes. I have now had the opportunity to read Mr McGhee's statement of 2 July 2007 and I can confirm that Mr McGhee's account of the events at the hearing of 3 April 2007 is accurate and reflects the contents of the notes I took that day.
5. In particular, my notes of the proceedings record that on several occasions the Tribunal stated that they accept that the two labels of personality disorder and depressive disorder are invalid and that Mr Hodder only has Post Traumatic Stress Disorder."
Post hearing Evidence of the Understanding of the Agency
"Assessment: As above the Pensions Appeal Tribunal has already ruled in respect of the assessment from 2002 to 2009. On 3.4.07 the remit entitlement appeals in respect of depressive disorder and personality disorder were withdrawn and struck out. The PAT's Reasons for Assessment Decision dated 3.4.07 indicate that the Tribunal included all psychiatric disablement in the 30% assessment. In line with that decision we note from the evidence listed overleaf that although there have been some periods of relatively good function e.g. in the mid 1980's the psychiatric disablement has essentially been of an enduring nature and that even when relatively well Pensioner had significant difficulties with such factors as interpersonal relationships. Having regard to all the above points and all the medical evidence over the years from 1977 onwards we are of the opinion that an assessment of 30% is also warranted for the period prior to 2002. This takes into account relative fluctuations over that time."
(a) That it approached its task as described by the Claimant and recognised that all his psychiatric difficulties were attributable to his service but concluded that his overall disability was very much less than recognised in the expert evidence in the paperwork before it.
(b) That it approached its task on the basis of the original stance of the Agency that the Claimant suffered from 3 conditions, only one of which called for recognition for War Pension purposes, but increased the assessment for PTSD because it considered that condition was responsible for a greater part of the Claimant's difficulties that has been recognised by the Agency.
"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 shall be struck out."
(a) The Tribunal must decide whether PTSD is in fact the only psychiatric condition from which the Claimant suffers.
(b) If PTSD is the only such condition, the Tribunal must then assess the level of disability suffered by the Claimant on account of PTSD.
(c) If the Tribunal concludes that there are psychiatric conditions in play other than PTSD, it must assess the overall disability suffered by the Claimant on account of all psychiatric conditions and then determine how much of that global level is attributable to PTSD.
A short explanation of its approach is called for in the reasons it gives for its decision.