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 WC2A 2LL
		5th March 2008

1. MR JUSTICE OWEN: There are three applications before the court. The first is a renewed application for permission to apply for judicial review, an application originally lodged as long ago as 31st December 2004 but now relating to a decision of the Pensions Appeal Tribunal at a hearing on 3rd May 2006 issued to the parties on 8th May 2006, permission having been refused by Mr Kenneth Parker QC sitting as a judge of the High Court on 15th June 2006. Secondly, there is an application that the order made by Mr Kenneth Parker QC be set aside, and thirdly an application for an order for disclosure of a large amount of documentary material; documents that I understand relate to the substantive application for permission to apply for judicial review.
2. It is necessary shortly to summarise the background to the applications. The claimant, Mr Bunce, was born in October 1932. He served his national service in the RAF from 14th March 1951 to 6th April 1953. On 28th April 1951 he sustained injury in a road traffic accident when his motorcycle left the road whilst turning a bend and crashed. Many years later, on 26th October 1994, he claimed a disablement pension under the Naval, Military and Air Forces (Disablement and Death) Service Pensions Order 1983 in respect of injuries arising out of the crash.
3. Various decisions were made following the claim and they resulted in the payment of a disablement pension on the basis of assessments of disablement that began at 40 per cent but were increased to 70 per cent from 26th October 1997. It had also been accepted that the claimant was suffering from bilateral noise induced sensorineural hearing loss due to service, but the assessment in respect of that was less than 20 per cent and so did not contribute to the 70 per cent assessment on which the entitlement to benefit was based.
4. There have been proceedings relating to that bilateral hearing loss, and for these purposes I gratefully adopt the summary in the decision of the Pensions Appeal Commissioner dated 12th February 2008 and from the following passage from its paragraph 3:

"On 19th May 2005 the Secretary of State decided not to alter a decision given on 10th April 2003 to the effect that the claimant was suffering from bilateral sensorineural hearing loss but that was not due to service noise exposure and that the hearing loss was neither attributable to nor aggravated by the claimant's service. On the same day the Secretary of State refused to review the 70 per cent assessment of disablement and also decided that there were no grounds for reviewing the date from which the disablement benefit be awarded. The claimant appealed against all three decisions. The appeals in respect of the hearing loss and the date of claim were dismissed by the Pensions Appeal Tribunal on 16th March 2006. I subsequently granted leave to appeal against both of those decisions and I heard the two appeals together. My decision in the date of claim appeal (file CAF/2868/2006) will be given in due course when I have received further submissions.

The appeal against the assessment of disablement was heard by a Pensions Appeal Tribunal on 8th May 2006 and resulted in the reduction in the assessment from 70 per cent to 30 per cent with effect from 30th June 2004 to 2nd May 2008. I need say no more about the decision of 8th May 2006 because no appeal lies to a Commissioner from it, save that I will record that judicial review proceedings are pending."

5. The issue before the Pensions Appeal Commissioner is relevant in the sense that his decision is relied upon by Mr Bunce to support the first of the applications that he makes. The Commissioner's decision was in the following terms:

"In those circumstances I am satisfied that the Tribunal's decision is erroneous in point of law because it did not give the claimant the opportunity to comment on the significance of the hearing loss not being through oral frequencies. This makes it unnecessary for me to deal with the other grounds of appeal which were that the Tribunal missed the standard of proof in that it failed to take material matters into consideration and that the statement of reasons for the decision was inadequate, all of which are linked to the first two grounds of appeal to a greater or lesser extent. I refer the case to another Tribunal because there are medical issues to be considered."

I am, however, not concerned with that aspect of the claimant's case, nor does it appear to me that the decision made by the Commissioner is of any relevance or assistance to me in resolving the issues now before me.

6. The issue to which the first application gives rise is whether there is an arguable ground of challenge to the decision of the Pensions Appeal Tribunal of 8th May 2006. The preliminary point taken by the second defendant is that the matters upon which the claimant now seeks to rely post-dated the application before the court by a substantial period of time. That is correct, but I propose nevertheless to treat the application on its merits.
7. Mr Bunce contends that the decision was one to which no reasonable Tribunal could have arrived, was procedurally unfair, and was in breach of Articles 3 and 6 of the Convention.
8. I have carefully considered the points made by Mr Bunce, most importantly in the written material before me but supplemented to some degree by his oral submissions today. In my judgment, the Tribunal directed itself correctly as to the law and its findings of fact were clearly open to it on the evidence before it. I can find no arguable ground of challenge to the decision. In my judgment, there is no identifiable error of law on the part of the Tribunal. It therefore follows that the permission application in relation to the first application must be refused.
9. The second application is simply another way of expressing the first and it too must fail. The third application is an application for disclosure, itself related to the first application. Given my decision in relation to the first, it must also follow that the third application must fail. It therefore follows that all three applications are dismissed.
10. MR BUNCE: Thanks, my Lord. I believe there is no appeal beyond this stage.
11. MR JUSTICE OWEN: Well, you can certainly ask for permission to appeal but I regret that there is no further appeal from this decision.
12. MR BUNCE: I can go to the European Court?
13. MR JUSTICE OWEN: That is not a matter on which I can give you any advice, Mr Bunce. You have to take stock yourself as to that. Thank you.