UK Social Security and Child Support Commissioners' Decisions

 
DECISION OF THE PENSIONS APPEAL COMMISSIONER
1. My decision is given under section 6A(4)(b) of the Pensions Appeal Tribunals Act 1943:

I SET ASIDE the decision of the Pensions Appeal Tribunal, held on 21 December 2006 under reference SD/00257/2006, because it is erroneous in point of law.

I REMIT the case to a differently constituted appeal tribunal and DIRECT that tribunal to conduct a complete rehearing of the issues that are raised by the appeal and, subject to the tribunal's discretion under section 5B(a) of the 1943 Act, any other issues that merit consideration. In particular, the tribunal must investigate and determine:

Are there grounds for review under regulation 44 of the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 2006?

If so, what are they?

If so, was there an official error? If there was, paragraph 1(7) of Schedule 3 to the 2006 Order applies.

If there was no official error, paragraph 1(1) and (2)(c) applies. What was the date of the application for a review?

I draw the Secretary of State's attention to my instruction in paragraph 11.

REASONS
2. This appeal is brought with my leave by the claimant, acting through his mother, against the decision of the tribunal, which dismissed his appeal in respect of the date of commencement of an award.
3. The relevant law is contained in the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 2006.

History and background

4. The claimant served in the army from 12 October 1989 to 14 February 1991 (as boy service) and from 15 February 1991 to 22 March 2002. He served in Germany, Yugoslavia and Northern Ireland. Within Great Britain he was engaged in the slaughter of animals during the foot and mouth outbreak.
5. According to the Secretary of State's statement of case, the history of awards is as follows:

•    Following his discharge, the claimant was awarded a war pension in respect of disablement identified as recurrent adjustment disorder. His disablement was assessed at 15-19% with effect from 22 March 2002.

•    Right anterior knee pain syndrome was added to the award with effect from 17 May 2002, but the percentage disablement remained the same.

•    With effect from 9 June 2004, two changes were made: (i) recurrent adjustment disorder was changed to mixed anxiety-depressive disorder; and (ii) the percentage disablement was increased to 20%.

6. On 14 February 2006, a Pensions Appeal Tribunal decided that the label of mixed anxiety-depressive disorder was correct.
7. The claimant appealed against both the 20% assessment and the commencement date. I am concerned only with the latter. His grounds of appeal were written on his behalf by his mother. She argued that there was no such condition as recurrent adjustment disorder and wrote:

'He was misdiagnosed by the army. This was confirmed by the tribunal panel in 2004 and they said that the 'label' should be reviewed and backdated to date of discharge.'

That slightly misrepresents what that tribunal had said in its reasons. It did express misgivings about the label and said that this should be looked at again, but it said nothing about any change dating from the claimant's discharge. (Perhaps the tribunal said something more on the day of the hearing.)

8. The tribunal dismissed the claimant's appeal for these reasons:

•    There was no dispute that the application for review was made on 9 June 2004.

•    The claimant sought the backdating of his 20% assessment to his discharge.

•    The date of claim dictated the commencement date of the award.

•    Even if the new label had been backdated to the claimant's discharge, his argument would not affect the percentage assessment from that date.

Some comments on terminology

9. As the Secretary of State accepts, the claimant applied for a review and did not make another claim. The difference was discussed by Mr Commissioner Mesher in CAF/3326/2005. In so far as the claimant was arguing that he had been given the wrong label, the Secretary of State is correct. However, as Mr Mesher pointed out, the difference is important. In this case, the presentation of the case has not been helped either by references to the date of 'claim' or by the citation of articles 34, 35 and 37 of the Order, which deal with claims. And the tribunal gave its decision in these terms: 'The Tribunal's decision is to dismiss the appeal against rejection of a claim for commencing date of award.' Accuracy of language and concepts is conducive, if not essential, to precision of analysis.
10. It may be that some confusion has arisen from the reference to 'claim' in section 5A of the Pensions Appeal Tribunals Act 1943. That section refers to specified decisions made 'in the case of a claim to which this section applies'. Those words may have created the impression that every action on a claimant's initiative has to be taken in response to a claim, even if it is in the form of a review. I can understand why that approach would be attractive, as it ensures that even applications for review are treated as claims for the purpose of the right of appeal. However, I do not consider that that is the correct interpretation. The claim, once made, survives through the course of the award and of any review. Consequently, any decision, including a decision on a review, is made on the claim. That would accord with the analysis of the Tribunal of Commissioners in R(S) 2/98. The reasoning and effect of that decision were reversed by section 8(2)(a) of the Social Security Act 1998, which provides that a claim does not subsist after it has been decided. I am not aware of any equivalent provision in the war pensions legislation. The reasoning in R(S) 2/08 could, therefore, apply. Alternatively or cumulatively, the reference to 'claim to which this section applies' is a convenient drafting device to identify the cases that are covered by the section.

The date of the application

11. The tribunal said that this was not in dispute. The claimant's mother now challenges the date. She says that she cannot remember any contact on 9 June 2004 and I have not been able to find any evidence relating to that date, although I may have missed it. She says that the relevant date may be her letter of 6 October 2003. This is relevant if the commencement date is fixed under paragraph 1(1) and (2) of Schedule 3, as the award will date from 'the date … of the last application for review'. I have directed the tribunal to resolve this issue if necessary. The Secretary of State should produce the evidence necessary for the tribunal to do so, preferably in advance of the rehearing.

Official error

12. In the appeal to the Commissioner, the claimant's mother has put her case expressly in terms of paragraph 1(7) of Schedule 3. She did not previously put it so plainly in any documents I have seen, but it was the substance of her challenge that the Secretary of State had used a label that did not exist. That raised the issue of paragraph 1(7). The tribunal did not deal with this argument in its reasons.
13. Reasons fulfil a number of functions. Two are relevant in this case. First, a tribunal's reasons show why the tribunal rejected the arguments put by the appellant (Flannery v Halifax Estate Agencies Ltd [2000] 1 All ER 373 at 377). Second, giving reasons helps to focus the tribunal's attention on the factors that are relevant to the issues raised for decision (Sogbetun v Hackney London Borough Council [1998] ICR 1264 at 1270).
14. In this case, the claimant's mother does not know why the tribunal rejected her argument on paragraph 1(7). Indeed, she does not even know if the tribunal paid it any attention at all. From the chairman's reasons, it could appear that the tribunal considered it irrelevant to the case before it. If that was so, it required an explanation. Moreover, if the tribunal had consciously addressed the application of paragraph 1(7), it would then surely have investigated the matters relevant to it.
15. In conclusion, the tribunal failed to deal with an issue that had been raised before it. That rendered its reasons inadequate and that in turn renders its decision wrong in law.

Paragraph 1(7)

16. This provides:

'Where an award is reviewed as a result of a decision ("the original decision") which arose from an official error, the reviewed decision shall take effect from the date of the original decision and for this purpose "official error" means an error made by the Secretary of State or any officer of his carrying out functions in connection with war pensions, defence, or foreign and commonwealth affairs, to which no other person materially contributed, including reliance on erroneous medical advice but excluding any error of law which is only shown to have been an error by virtue of a subsequent decision of a court.'

Analysis

17. That is not happily worded. At least, it is not so worded as to make its meaning immediately plain. My analysis is this.

•    Paragraph 1(7) deals with the consequences of the review of an award.

•    The review is a precondition for the application of paragraph 1(7).

•    Paragraph 1(7) does not provide a power to review or a ground for review.

•    An award is separate from the decision that makes it.

•    An award may be reviewed.

•    The only power to review an award that I have been able to find is in article 44(2). All the other powers I have found refer to the review of a decision or an assessment.

•    The grounds for review of an award under article 44(2) affect the award, not the decision that made it. In this case, the only relevant ground for review would be that 'the award was made in consequence of ignorance of, or a mistake as to, a material fact' under article 44(2)(a). The ignorance of mistake would be the correct diagnosis of the claimant's condition.

•    The official error must affect the decision that made the award. In this case, the official error would be the use of a label that was not medically recognised, which in turn arose from relying on erroneous medical advice.

•    The function of paragraph 1(7) and of official error is limited to the date from which the review takes effect.

•    If the grounds for review of the award reveal the decision making it arose from an official error, paragraph 1(7) applies.

•    The decision that made the award under review is the 'original decision'.

•    If the award is reviewed, the decision by which that review is effected is the 'reviewed decision'. It would have been more consistent with the language of article 44 to refer to this as the revising or revised decision.

•    The reviewed decision takes effect from the date of the original decision. That must mean the effective date of that decision; otherwise the result produced would be arbitrary depending on when the Secretary of State happened to make the decision.

18. That leaves the question whether the commencement date is part of the award. If it is not, paragraph 1(7) cannot apply. I consider that the commencement date must be part of the award. It is difficult to imagine how there could be an award without a commencement date.
19. Putting all that together produces this: if an official error causes a decision to be made that makes an award and that award is reviewed, the decision made on the review takes effect from the effective date of the decision that made the award.

Will the change of label have any practical effect?

20. The Secretary of State has submitted that the change of label would have no practical effect because (i) all the claimant's psychiatric disablement has been properly taken into account albeit under a wrong label and (ii) the increase to 20% was based on deterioration and could not be related back to the claimant's discharge. Both those reasons may be valid. However, from my limited acquaintance with war pension appeals, I have learnt that the labels attached to medical conditions can be of considerable importance to claimants, even if they do not affect the percentage assessment or the pension payable. Clearly, in this case at least the claimant's mother regards the correct label as important. From that point of view, the change would have a significance if not an effect.

Disposal

21. I allow the appeal and direct a rehearing.

Signed on original on 04 October 2007

Edward Jacobs Commissioner