UK Social Security and Child Support Commissioners' Decisions

 


[2006] UKSSCSC CAF_336_2006 (30 June 2006)

THE PENSIONS APPEAL COMMISSIONERS

Commissioner's Case No: CAF/336/2006

PENSIONS APPEAL TRIBUNALS ACT 1943

APPEAL FROM A DECISION OF A PENSIONS APPEAL TRIBUNAL

ON A QUESTION OF LAW

DECISION OF THE PENSIONS APPEAL COMMISSIONER

COMMISSIONER: MR J MESHER

DECISION OF THE PENSIONS APPEAL COMMISSIONER

1. The claimant's appeal to the Commissioner is allowed. The decision of the North Shields pensions appeal tribunal dated 2 December 2005 is erroneous in point of law, for the reasons given below, and I set it aside. The case is referred to a differently constituted pensions appeal tribunal for determination in accordance with the directions given in paragraph 16 below (Pensions Appeal Tribunals Act 1943, as amended, section 6A(4)(b)).
2. In this case, the representative of the Secretary of State for Defence supported the claimant's appeal to the Commissioner, to the extent of agreeing that the pensions appeal tribunal (PAT) of 2 December 2005 had erred in law and expressing no objection to the case being sent back to a new PAT for rehearing. In the light of that support, I can give a relatively short decision, without going into the substance of the question that will be before the new PAT, whether the claimant qualifies for a mobility supplement under Article 26A of the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 1983. That is also one of the reasons why I refuse the claimant's request for an oral hearing of his appeal to the Commissioner. The other reasons are that the matters raised in his reply to the Secretary of State's observations are not relevant to the question of whether the PAT of 2 December 2005 erred in law and that he will have the chance to attend the rehearing before a new PAT to argue his case for the mobility supplement. I am satisfied that the appeal to the Commissioner can properly be determined without an oral hearing.
3. The PAT was concerned with the claimant's appeal against the Secretary of State's decision of 21 December 2004 disallowing his most recent claim for mobility supplement. The claimant had replied to the listing questionnaire sent out by the PAT Office to say that intended to be present at the hearing of the appeal and that he would be represented by the Royal British Legion (RBL). He was sent notice of the hearing of his appeal at 11.30 am on 2 December 2005 at North Shields. The premises used in North Shields were in Kings Court, which is a county court complex.
4. By the day of the hearing, the RBL had withdrawn from representing the claimant. The PAT knew this, because the claimant was described as unrepresented in the statement of reasons. The claimant has said that the RBL's withdrawal was only notified to him 48 hours in advance of the hearing, although it was on the ground of his history of violence, that had been known to the RBL for a long time. I have no legal power to make any rulings on the complaints of negligence that the claimant has made against the RBL.
5. What happened on 2 December 2005 was described as follows in the PAT's statement of reasons for disallowing the appeal (I have corrected some of the typing after looking at the chairman's handwritten original):

"[The claimant] did not attend. No word was received from him. The Tribunal waited until 11.45 am (15 minutes after the allotted starting time) and then proceeded to hear the appeal in [the claimant's] absence.

The Tribunal found that [the claimant's] accepted conditions, as set out in the Statement of Case, do not constitute a true cause of mobility problems. None of his conditions render him unable to walk or otherwise satisfy any of the requirements of Article 26A. Nothing written by [the claimant] in his claim affects that issue.

After the representations had been made, and as the Tribunal was reaching its decision, at noon, the Clerk announced that [the claimant] had just arrived. The Tribunal was not able to undo the proceedings and was not able to allow [the claimant] to have the Appeal reheard at that point."

It is plain from what the claimant wrote in a letter to the President of PATs dated 22 December 2005 that there was some disturbance when he was informed of the PAT's ruling by the clerk. It seems that he was not allowed into the hearing room. The claimant also said in that letter and the accompanying documents that he had arrived at the court building in time for the 11.30 hearing, but because of the particular effects of his conditions, was not able to get out of his car for 15 minutes and then had difficulties being frisked by the security personnel at the court entrance, taking up a further 10 minutes. His mother had gone ahead into the building to inform the PAT of his arrival and possible delay, but was not given proper directions and waited in the entrance hall to be called (which did not happen). I do not know how much of that was communicated to the PAT by the clerk when saying that the claimant had just arrived.

6. The claimant now appeals against the PAT's decision with the leave of Mr Commissioner Bano. When granting leave, the Commissioner said that he could "see no reason why the tribunal could not have re-commenced the hearing after the [claimant] arrived". As noted above, the representative of the Secretary of State supported the appeal in the observations dated 2 March 2006. The observations included the following:

"The Secretary of State notes that the tribunal did have power under Rule 20 [of the Pensions Appeal Tribunals (England and Wales) Rule 1980] to hear the appeal in [the claimant's] absence. However, he does not consider that by only waiting for half an hour, the tribunal was acting fairly to [the claimant], especially having regard to the fact that his mother was present although it would not appear that any court official had approached her.

[The claimant] remonstrated with the tribunal, but having made its decision, it did not have the power to set that decision aside on the day. There is a provision under Rule 20(5) of the PAT Rules for an application to be made to the President where an appellant considers that his appeal should not have proceeded in his absence.

a) Rule 20(5) of the PAT Rules provides for the re-hearing of an appeal where certain circumstances are met. [The claimant], on his arrival, immediately registered his disagreement that the tribunal had determined the appeal in his absence and sought a re-hearing. He was not advised of the provisions which Rule 20(5) afforded.

Accordingly, the Secretary of State would have no objection to this case being remitted to a fresh tribunal."

7. The claimant has replied in observations dated 5 March 2006. The case has now been transferred to me for decision.
8. I shall come back below to the issue of setting aside under Rule 20(5) of the PAT Rules. On the question of whether the PAT erred in law in proceeding to make a decision without having heard the claimant, it seems to me that the Secretary of State's observations of 2 March 2006 do not describe the circumstances accurately. According to the PAT's own statement of reasons, the claimant did not arrive at the hearing room after the PAT had reached its decision, but as it was reaching its decision. I take that at face value to mean either that the members of the PAT were still discussing the decision to make or had agreed on the decision, but the chairman had not yet completed the statement of reasons or decision notice or announced the decision orally to the Secretary of State's representative.
9. There is authority in old decisions of the Social Security Commissioners that a decision is not effective until it is promulgated (decision R(I) 14/74, paragraph 14) and that a decision that has been announced orally can be recalled if a serious mistake has been made (decisions CSB/226/1981 and CI/141/1987). In Compagnie Noga D'Importation et D'Exportation SA v Abacha [2001] 3 All ER 513 Rix LJ discusses, by reference to much case-law, the circumstances in which a judge in the ordinary courts may, before the order of the court has been perfected, reconsider a final judgment that has been issued to the parties. There was also reference to the powers of tribunals before a decision has been made in paragraphs 30, 31 and 34 of Newman J's judgment in Secretary of State for Defence v President of the Pensions Appeal Tribunals (England and Wales), Jones (interested party), [2004] EWHC Admin 141, 4 February 2004, with some suggestions about when a decision might be "made" in the PAT context (although the PAT Rules have been amended since then). But I do not need to go into just what principles might apply in the PAT context if, say, a PAT had reached a decision and the chairman had completed the statement of reasons or announced the result orally before a claimant arrived. Here, the PAT had not reached either of those stages. It was therefore free as a matter of law (subject to the principles of natural justice: see below) to go back to the beginning again and conduct a hearing. And the claimant was only 30 minutes after the time listed for the starting of his hearing.
10. In those circumstances, I have no doubt that there was a breach of the principles of natural justice and of the right to a fair trial in accordance with Article 6(1) of the European Convention on Human Rights for the PAT not to allow the claimant the opportunity to be heard in person on his appeal. The PAT was wrong in law to say that it was not able to undo the proceedings and was not able to allow the claimant to have the appeal reheard. I appreciate that the delay might have caused difficulty in fitting the hearing in with the other hearings listed for the day, that the whole situation might have become so fraught that a tolerably calm hearing was impossible or that the members of the PAT might have felt that, because of the conclusions they had reached in discussion or of what they had already heard from the representative of the Secretary of State, they were unable to bring an open mind to a rehearing. But all those difficulties could be dealt with by an adjournment for a rehearing by another PAT with a completely different membership. And in any event, to comply with the rules of natural justice it would have been necessary for there to be a frank explanation to the claimant of the stage that the PAT had reached before it stopped on his arrival and for there to be an offer to the claimant of the choice of an adjournment for a hearing by a new PAT or a fresh hearing by the PAT of 2 December 2005 (unless that PAT considered that a fair hearing could not be provided on that day). That was the procedure suggested by the Social Security Commissioner in CSB/226/1981 in a case where the tribunal had actually reached a decision in the claimant's absence, but not promulgated it.
11. The over-riding duty to give claimants a fair opportunity to state their case leads to those conclusions in the present case. The discretion given by Article 20(2) of the PAT Rules to hear and determine an appeal in a claimant's absence, unless satisfied that there is a sufficient reason for the absence, is subject to that over-riding duty. It would be wrong for me to attempt to set out any comprehensive rules. There may be circumstances where the degree of lateness and the reasons for it lead to the conclusion that the claimant has not been deprived of a fair opportunity to state his case, but has merely failed to take up the fair opportunity provided to him. The particular circumstances of each case must be considered. But it seems to me that in all cases of a late arrival at the tribunal venue on the right day the PAT must properly investigate what the claimant has to say about the reasons for the lateness, which I suspect did not happen in the present case because of the PAT's misunderstanding of its powers.
12. Accordingly, the PAT erred in law by proceeding to reach and promulgate its decision disallowing the claimant's appeal. That requires me to set its decision aside. In the circumstances, there must be a rehearing by a new PAT.
13. On the question of the power to set aside under Article 20(5) of the PAT Rules, I agree with the Secretary of State that the PAT could helpfully, having wrongly proceeded to decide the claimant's appeal without hearing him, have advised him of his right to make an application to the President under Article 20(5). That could have been done through the clerk on the day as well as in the statement of reasons. The existence of the power to set aside is sometimes a factor, and legitimately so, in the exercise of the discretion under Article 20(2) to proceed in a claimant's absence. If it is a factor, it should be mentioned. But otherwise a mere failure to mention it when there has been a hearing in the absence of the claimant would not be an error of law, rather than possibly a lapse from best practice.
14. A peculiarity in the present case is that the claimant did, it seems to me, apply to the President for a setting aside under Article 20(5) in his letter of 22 December 2005. He referred to his view that it had been wrong for the PAT to proceed in his absence, particularly given the late withdrawal of his representatives, and continued:

"Could I please appeal the judgment, or have it reviewed, or set aside ..."

The President treated that as merely an application for leave to appeal to the Pensions Appeal Commissioner and referred it as such to the chairman of the PAT of 2 December 2005. However, there was an express request for setting aside when the claimant's main complaint was of a hearing in his absence. In my judgment, the President should have treated the letter as including an application under Article 20(5), which he could conveniently have ruled on before the alternative application for leave to appeal was dealt with. That might have led to this case reaching a rehearing much more quickly.

15. Finally, in his observations of 5 March 2006 the claimant requested the Commissioner to order a full investigation into what he said were fraudulent tamperings with his service medical records. That request is based on a misunderstanding of the Pensions Appeal Commissioner's powers. Commissioners only have powers to decide whether or not particular decisions of PATs are erroneous in point of law and to give directions about the particular case to any new PAT. They have no power to conduct investigations into other cases or other aspects of a service-member's relationship with the Ministry of Defence.
16. The claimant's appeal against the Secretary of State's decision of 21 December 2004 is referred to a differently constituted PAT for determination in accordance with the following directions. There must be a complete rehearing by the new PAT, which will not be bound by any findings made or conclusions expressed by the PAT of 2 December 2005. I need give no directions of law about the meaning of Article 26A of the Service Pensions Order. The evaluation of all the evidence will be entirely a matter for the judgment of the members of the new PAT. The claimant must not assume that, just because he has been successful in this appeal to the Commissioner on a point of law, he will be successful on the merits of his appeal before the new PAT. My decision is entirely neutral on that. The decision on the facts in this case is still open.

(Signed) J Mesher

Commissioner

Date: 30 June 2006