UK Social Security and Child Support Commissioners' Decisions

 


[2007] UKSSCSC CAF_2150_2007_ (12 December 2007)

DECISIONS OF THE PENSIONS APPEAL COMMISSIONER
1. My decisions are given under section 6A(4)(a)(ii) of the Pensions Appeal Tribunals Act 1943:

I SET ASIDE these decisions of the Pensions Appeal Tribunals:

held in Birmingham under reference AFCS/00009/2006 on 20 December 2006;

held in Newport under reference AFCS/00008/2006 on 21 February 2007.

I make findings of fact and give the decision appropriate in the light of them.

I FIND these facts:

(i) Acting Sergeant T's death occurred while he was in service, but service was not the predominant cause of his death;

(ii) at the time of his death, he was not on duty;

(iii) at that time, he was not responding to an emergency.

My DECISIONS are that the claimants are not entitled to benefit under the Armed Forces and Reserved Forces Compensation Scheme 2005 in respect of the death of Acting Sergeant Michael T.

REASONS
2. These cases raise a number of issues on the interpretation and interrelation of articles 9 and 10 of the Armed Forces and Reserved Forces (Compensation Scheme) Order 2005.
3. They arise from the sad death on 7 July 2005 of an Acting Sergeant; I shall call him Sergeant T. Following his death, two claims were made under the Armed Forces and Reserved Forces Compensation Scheme 2005. One was by his widow (CAF/2151/2007); the other was by his former wife on behalf of their son (CAF/2150/2007). The Veterans Agency did not make an award on either claim. On appeal, different Pensions Appeal Tribunals allowed the appeals. The Secretary of State appealed against those decisions with my leave.
4. In view of the nature of the issues, I held a hearing on 6 December 2007. The Secretary of State was represented by Mr Martin Chamberlain, of counsel, instructed by the Treasury Solicitor. The claimants were represented by Mr James Bond, of the Royal British Legion. I am grateful to them for their written arguments and for their presentations and discussions at the hearing.

History and background

5. Sergeant T was a chef. He was based in Cyprus at Dhekelia Garrison. He was promoted and transferred to another base on Cyprus, Ayios Nikolaos. Until married quarters became available there, he continued to live at Dhekelia Garrison, 15 miles away. He was paid a residence to place of duty allowance – a MOD RESPOD.
6. On the day of his death, Sergeant T was due to report to his base at 8.30 a.m.. He was concerned because the military chefs under him were unreliable and the civilian staff were under suspicion because stores had gone missing. At 6 a.m., he rang the base and spoke to the Head Chef. He learnt that the chefs under him had not reported for duty. He brought forward his journey to work and left at once. On the way, his motor cycle was in collision with a civilian truck. He died as a result of the accident.

The legislation

7. The armed and reserved forces compensation scheme was created under section 1(2) of the Armed Forces (Pensions and Compensation) Act 2004:

'The Secretary of State may by order establish schemes which provide for benefits to be payable to or in respect of a person by reason of his illness or injury (whether physical or mental), or his death, which is attributable (wholly or partly) to his service in the armed forces or the reserved forces.

Such a scheme is referred to in this Act as an armed forces and reserved forces compensation scheme.'

8. The Scheme was created by the Armed Forces and Reserved Forces (Compensation Scheme) Order 2005.
9. Article 2(1) contains definitions. The only relevant definition is:

'"service" means service as a member of the forces, except as provided in article 10'.

10. Articles 7 and 8 provide for injury that is caused or made worse by service. Article 9 deals with death caused by service. The following requirements are relevant in this case.

•    the cause of the death must have occurred on or after 6 April 2005;

•    the death must have occurred in service;

•    service must be the sole or predominant cause of death.

11. Articles 10 and 11 then make detailed provisions relevant to articles 7, 8 and 9:

'Injury and death - inclusions

10.-(1) Benefit is payable in accordance with this Order to or in respect of a person by reason of an injury sustained or death occurring, while participating in-

(a) sporting activities as a player, a referee, an organiser or a representative of a particular sport or sporting organisation where-

(i) the Secretary of State has approved the sport as being a sport which enhances the fitness, initiative and endurance of members of the forces, and

(ii) the relevant Service has recognised the particular event and the organisation and training for it;

(b) activities approved by the relevant Service which are undertaken for the purpose of meeting and maintaining the physical standards required of members of the forces; or

(c) adventurous training courses or adventurous expeditions approved by the relevant Service;

in each case where service is the predominant cause of the injury or death.

(2) For the purposes of paragraph (1)(a)(i), the Secretary of State may approve a single sporting activity or a class of such activities and may approve such activities unconditionally or subject to any specified condition.

(3) The activities referred to in paragraph (1) do not include social events or free time associated with those activities.

(4) Benefit is payable in accordance with this Order to or in respect of a person by reason of an injury sustained or a death occurring while travelling from-

(a) his home or his place of work to the place where an activity referred to in paragraph (1) is to happen or while travelling back again;

(b) his home or his regular place of work or while travelling back again in both cases where one of the circumstances specified in paragraph (5) applies and service is the predominant cause of the injury or death.

(5) The circumstances referred to in paragraph (4)(b) are where the member of the forces-

(a) is travelling from his home or his regular place of work to a place of work outside the United Kingdom or back again;

(b) is travelling from his home or his regular place of work to another place of work in the United Kingdom which is not his regular place of work or while travelling back again; or

(c) is required to reside in accommodation provided by the Ministry of Defence for families of members of the forces at a distance of over 50 miles from his regular place of work and is travelling by a reasonably direct route from that accommodation to that place of work or while travelling back again.

(6) Benefit is payable in accordance with this Order to or in respect of a person by reason of an injury sustained or a death occurring-

(a) as a result of acts of terrorism or other warlike activities in each case directed towards him as a member of the forces as such; or

(b) while called out to and travelling to an emergency

but only where service is the predominant cause of the injury or death.

(7) This article does not apply unless the cause of the injury, or the cause of the death, occurred on or after 6th April 2005.

(8) In this article, "the relevant Service" means the Army, the Navy, the Air Force or the Reserve Forces as the case may be.

'Injury and death - exclusions

11. No benefit is payable under this Order to or in respect of a person by reason of -

(a) an injury which is predominantly caused or predominantly made worse by, or death which is predominantly caused by-

(i) the use or effect of tobacco,

(ii) the consumption of alcohol,

(iii) medical treatment of the injury except where the treatment is provided while the person sustaining the injury is on military operations outside the United Kingdom and in circumstances relating to service where medical facilities are limited,

(iv) the non-therapeutic use of drugs,

(v) consensual sexual activities,

(vi) except where article 8 applies, events, experiences, exposures and activities occurring before the member of the forces entered service;

(b) an illness which is-

(i) caused by a single gene defect or is predominantly hereditary in origin;

(ii) a personality disorder;

(iii) an endogenous infection;

(iv) an exogenous infection except where the infection is endemic to a tropical or a subtropical region and the person infected has been exposed to the infection in the course of his service or where, in a temperate region, there has been an outbreak of the infection in service accommodation or a workplace.

(c) a self-inflicted injury whether or not causing death except where the self-inflicting of injury is a result of a mental illness caused by service.'

What the tribunals decided

12. The tribunals were slightly differently constituted. The chairman and service member were the same, but they sat with a different medical member in each case. The tribunals allowed both appeals and decided: (i) service was the predominant cause of Sergeant T's death (article (9); (ii) it did not matter that the circumstances were not covered by article 10(4)(b) and (5); and anyway (iii) he had been called out, and was travelling, to an emergency (article 10(6)(b)).

The relationship between articles 9 and 10

13. The tribunals decided that article 9 was not limited by article 10.
14. Mr Chamberlain began by arguing that article 10 made specific and exclusive provision for particular activities. Taking sport as an example, he argued that injury or death occurring in the course of a sporting activity was only within the scheme if it fell within article 10(1). In answer to my questions, he did not accept that article 10 only applied if the case did not otherwise fall within article 9. I believe it is fair to say that he later acknowledged that there might be cases in which a death was caused by service in the course of an activity covered by article 10 but outside the scope of its particular provision. However, he did not accept that that was the position in these cases.
15. Mr Bond argued that the first question was whether service was the predominant cause of Sergeant T's death. In other words, he began with article 9 and only relied on article 10 if article 9 did not apply. I accept that that was the correct approach.
16. My analysis is this. I refer only to death, but the analysis applies also to injury.
17. Article 9 deals with cases in which death was caused by service. Article 10 deals with cases that do not fall within article 9, because the death was not caused by service. It deals with circumstances which would not normally be considered as part of service as a member of the forces. Article 11 excludes some causes of death from the scope of the scheme. For the most part, it seems to be merely declaratory. For example, it is difficult to envisage circumstances in which a death that was predominantly caused by the non-therapeutic use of drugs or by consensual sexual activities would also be predominantly caused by service.
18. The different subject matter of articles 10 and 11 explains why the definition of service in article 2(1) refers to article 10, but not to article 11. Service relates to activities undertaken by the forces. Article 10 deals with the circumstances in which death occurred by specifying particular activities. Article 11, however, deals with causes not circumstances. It does not deal with activities that are involved in service, but with particular causes of death. It does not relate to the scope of service and is, therefore, not mentioned in the definition.
19. My interpretation is consistent with the way in which 'include' is generally used in legislation to extend the usual meaning of a word. It is also consistent with the definition in article 2(1). Service means service as a member of the forces, except for those circumstances specified in article 10. In those circumstances, service includes activities that would otherwise be outside the scope of service in the forces.
20. There is nothing in article 10 to suggest that it is exhaustive of the circumstances in which the activities covered are treated as service. There are drafting techniques that can make that clear if appropriate. If Mr Chamberlain were correct, article 10(1)(a) could have read something like this: 'Benefit is payable in respect of death occurring during participation in sporting activities if and only if …'
21. Finally, my interpretation explains why article 10 provides that death must be the predominant cause and article 10(7) provides that it must occur on or after 6 April 2005. If article 10 merely made specific provision for particular aspects of service, it would be unnecessary to repeat what was already provided by article 9(1)(b) and (2).
22. It is rational to read article 10 as I have. Looking at its contents, it deals with activities that would not usually be undertaken as part of service in the forces. However, they are activities that are closely related in some way to service and it makes sense that the scheme should be extended to cover them. However, the precise scope of some of the provisions is arbitrary. The 50 mile distance in article 10(5)(c) is the clearest instance. An arbitrary limit is understandable if it is applied to an extension. It is less understandable why there should be an arbitrary exclusion of an activity that would otherwise be part of service.
23. In contrast, it does not seem rational to exclude all possibility of death ever being caused by service in the course of activities covered by article 10. I am sure that will be rare, but it is possible. Take the examples discussed at the hearing. An SAS soldier might be engaged in a sporting activity while gathering intelligence undercover in a foreign country and be killed or injured when his cover was blown. Or a soldier might be asked to provide protection for someone on the way home. The death of soldiers in those circumstances could be caused by service. It would be arbitrary to exclude then from the scope of the scheme. To do so would require clearer wording.
24. My conclusion is that the tribunals were right to decide that the scope of article 9 was not limited by the terms of article 10.

Was service the predominant cause of Sergeant T's death?

25. The tribunals' answer to this question was: yes.
26. Causation is an issue of fact. I can only interfere with the tribunal's conclusion if it went wrong in law. In the circumstances of this case, that means I must be satisfied that the tribunal was not entitled to decide as it did.
27. The tribunals considered whether Sergeant T was on duty at the time of the accident. I agree with them that that was relevant, but not decisive. There is no evidence that the Sergeant was ordered to go to the base immediately. However, I accept that in the military context and culture he was effectively obliged to go. But that does not mean that he was on duty while he travelled there. The more natural analysis is that he was travelling in order to report for duty, not that he was travelling on duty. I suspect, for what it is worth, that if stopped on the way, he would have been more likely to say 'I can't stop, I've got to get on duty' rather than 'I can't stop, I'm on duty.'
28. However, I do not hold that against the claimants. What has to be shown is a causal link between death and service. As Mr Bond pointed out, the legislation does not use the concept of duty. That seems to me beneficial to claimants, because it broadens the scope of the scheme.
29. In order to decide if service was the predominant cause of death, it is useful to ask: what link is there between Sergeant T's service and his death? The answer is this. His death occurred while he was in service. It occurred while he was travelling to his place of work. The journey took place when it did because a problem had arisen at work, to which he had to respond. It was preparatory to Sergeant T undertaking his duties. And it was necessary if he was to do that.
30. Looked at in that light, there was little difference between this journey into work and the journey into work on any other day. The only differences were the reason for, and timing of, the journey. In other words, service provided the circumstances in which the accident occurred. I am willing to accept that service was a contributory factor. But it was a minor factor and certainly not the predominant cause of death. The predominant cause of death was the accident.
31. (This is subject to the issue of whether Sergeant T had been called out to an emergency. I deal with that later.)
32. My conclusion is that the tribunals were wrong to decide that service was the predominant cause of Sergeant T's death.

The meaning of article 10(5)(a)

33. Mr Chamberlain argued that article 10(5)(a) had to be interpreted to read: 'is travelling from his home or his regular place of work to a place of work other than his regular place of work outside the United Kingdom or back again'.
34. Mr Bond argued that 'Things should say what they mean and meanings should be taken from what they say.' Taking that approach, Sergeant T was within article 10(5)(a). When he died, he was travelling from his home to a place of work and that place of work was outside the United Kingdom.
35. My analysis is this. As a convenient shorthand, I will speak of journeys 'between home and work'.
36. Article 10(4)(b) provides that journeys between home and work are within the scheme if they come within one of the three circumstances in article 10(5). It is convenient to take them in reverse order.
37. Head (c) deals with journeys between the person's home and regular place of work. It contains detailed conditions and a minimum distance. It contains no geographic limits. On its wording, it applies to journeys within the United Kingdom and outside the United Kingdom.
38. Head (b) deals with journeys between the person's home and a place of work other than the regular place of work. It is limited to journeys within the United Kingdom. Otherwise, it contains no additional conditions.
39. Head (a) is less clear in its scope. Hence the argument in these cases.
40. Applying Mr Bond's principle of interpretation, the circumstances of this case fall within head (a). However, to adapt Mr Bond's terminology, the language has to be interpreted in a legal culture. That involves reading head (a) in its context. That context includes heads (b) and (c).
41. It is relevant to compare the wording of head (a) with head (b). Head (b) contains the limiting words 'which is not his regular place of work'. It would be surprising if, as Mr Chamberlain argued, words that are express in head (b) had to be implied into head (a). Surprising, but not impossible.
42. It is also relevant to take account of head (c). This contains no geographical limit, in contrast to heads (a) and (b). That suggests that it applies anywhere in the world. If Mr Bond is correct, head (a) by implication confines head (c) to the United Kingdom. Again, that would be surprising, but not impossible.
43. There is a further point on head (c). It contains carefully delineated conditions including a distance of more than 50 miles. If Mr Bond is correct, head (a) bypasses those provisions and brings all journeys between home and work within the scheme, provided that they are not wholly within the United Kingdom. That may be just possible, but it would be very surprising. It introduces an irrational distinction and does not make sense of article 10(5) as a whole.
44. My conclusion is this. Head (c) did not apply to Sergeant T's journey from home to work. If for no other reason, the distance did not exceed 50 miles. I cannot read head (a) in a way that in effect impliedly adds a geographical limit to the application of head (c). To do so would be inconsistent with the clear geographical limits set in the other heads and would draw an irrational distinction between journeys inside and outside the United Kingdom. Whatever its proper scope, head (a) does not include Sergeant T's journeys from home to the base that was his regular place of work or back again.

Mr Chamberlain's argument on article 10(5)(a)

45. For the record, I do not accept Mr Chamberlain's suggested reading for these reasons. It involves reading in words that are expressed in head (b) and it is unnecessary given my interpretation of head (a). It may also give rise to problems in other cases, as the following examples show.
46. Example 1: A soldier is based in Wrexham, but is posted to Germany. The outward journey is from the soldier's home or regular place of work. On departure, Wrexham will cease to be the soldier's regular place of work. That will become the base in Germany. The soldier will be moving from one regular place of work to another. That seems to be a realistic analysis of what happens when a soldier is posted abroad. But reading in the words suggested by Mr Chamberlain could exclude it from head (a). It could be accommodated by other forms of wording. For example: 'is travelling from his home or his regular place of work to a place of work other than his regular place of work or a new regular place of work outside the United Kingdom or back again'. But this is becoming very cumbersome and there is another problem.
47. Example 2: A soldier is posted to Germany. That is his new regular place of work. The whole family is housed in married quarters on the base. They return to the United Kingdom on leave. In doing so, they are in common parlance going back home. But what is a home for this purpose? The soldier's family now lives in Germany. They no longer have married quarters in the United Kingdom. If article 10(5) covers journeys to and from the United Kingdom on leave, 'home' must be given a more general meaning than particular accommodation or perhaps even a particular locality. There is a further problem. The journey is now from the soldier's regular place of work in German. It is not 'back again' from 'a place of work other than his regular place of work'. On Mr Chamberlain's wording, this is outside head (a).
48. I am not saying that it is impossible to overcome these problems with Mr Chamberlain's suggested wording. I am saying that I prefer to avoid reading in words that are not necessary in these cases and might cause problems in other cases. (I note that article 10 had now been extensively amended from 30 June 2006, so any problems would only apply to the period before that date.)

The meaning of article 10(6)(b)

49. The tribunals decided that Sergeant T had been called out to and was travelling to an emergency.
50. Mr Chamberlain argued that Sergeant T was not called out; he had decided to go to the camp of his own volition. A staff shortage was not an emergency and the civilian staff were available to cook breakfast. Service was not the predominant cause of his death.
51. Mr Bond argued that this provision had to be interpreted and applied in the context of military culture. Breakfast was a parade that all soldiers had to attend. It set them up for the activities of the day. If breakfast was not provided, it would be a serious matter. Within a military culture, Sergeant T was faced with an emergency. He understood that. His discussion with the Head Chef had to be understood in that context. As a senior NCO, the sergeant was entitled to call himself out and onto duty to deal with an emergency.
52. My analysis is this.
53. I do not need to decide whether Sergeant T was 'called out', either by the Head Chef or exercising his own initiative. It is sufficient to deal with whether he was responding to an emergency.
54. Emergency is an ordinary English word. It does not have any special meaning in the context of article 10(6). I accept that the word may have shades of meaning according to the circumstances and one circumstance could be military culture. However, the provision is not limited to military emergencies. It could include emergencies affecting the civilian power, for example the recent floods or the earlier foot and mouth outbreak.
55. The tribunal found that Sergeant T was responding to an emergency. I can only disturb that finding if the tribunal went wrong in law. The correct approach to that issue was set out by Lord Hoffmann in Moyna v Secretary of State for Work and Pensions reported as R(DLA) 7/03:

'24. … The meaning of an English word is not a question of law because it does not in itself have any legal significance. It is the meaning to be ascribed to the intention of the notional legislator in using that word which is a statement of law. It is because of the nature of language that, in trying to ascertain the legislator's meaning, it is seldom helpful to make additions or substitutions in the actual language he has used.'

'25. … What this means in practice is that an appellate court with jurisdiction to entertain appeals only on questions of law will not hear an appeal against such a decision unless it falls outside the bounds of reasonable judgment.'

56. I have consulted a number of dictionaries to see how they define 'emergency'. One common feature of the definitions is that an emergency arises from something unexpected. In these cases, the problem that led Sergeant T to bring forward his journey to work was not unexpected. He knew that the chefs under him were unreliable and that the civilian staff were under suspicion. He expected a problem; that was why he rang the base. He may have hoped that everything was going well, but he expected that it might not be.
57. Dictionary definitions are not determinative, because it is difficult to capture every nuance of usage in the varying contexts in which a word may be used. The context here is article 10 and its place in the scheme. It is one of a number of circumstances that are equated with service by a member of the forces for the purposes of payment of benefit on injury or death. That may suggest that the emergency involves an element of danger or requires the particular skills and resources of the military. It certainly suggests that there should be a degree of seriousness in the situation. The tribunals defined an emergency as 'any sudden event that requires immediate action…' That is in line with the dictionary definitions. But it is easy to think of circumstances that satisfy that definition without being emergencies, at least not emergencies in this context. Suppose that a button comes off a tunic before an important parade. That would be unexpected and would require immediate action. But that is not the kind of event with which article 10 is concerned. As Mr Chamberlain argued, the problem was essentially one of supervision. There were civilian staff to cook the breakfast. They were under suspicion and ideally required supervision, but they were able to cook. The soldiers on the base would not go hungry. The need for supervision lest stock should go missing was not sufficiently serious to amount to an emergency.
58. I have made such allowance as I can for the military culture. I am prepared to accept that the absence of the other chefs and the doubts about the honesty of the civilian staff were important. I am prepared to accept that for practical purposes Sergeant T had no choice other than to attend at the camp as soon as he could. But that is not enough to make it an emergency in any proper use of the word in this context. What happened was that Sergeant T brought forward his time of departure in order to cope with an urgent problem at the base.
59. My conclusion is that the tribunals were not entitled to find that Sergeant T was faced with an emergency. It was not within the 'bounds of reasonable judgment' for the tribunals to find as they did.

Reasons for decision

60. I raised this issue because of my experience of the way in which Pensions Appeal Tribunals have given their reasons in the cases that have come before me. There has been a tendency for chairmen to give fairly limited reasons when deciding the appeal and to supplement them with more detail if one of the parties applies for leave to appeal to a Commissioner.
61. Mr Chamberlain's analysis of the cases was this. Judges of the High Court were not limited by procedural rules and could supplement their reasons under their inherent jurisdiction: English v Emery Reimbold & Strick Ltd [2002] 3 All ER 385. Tribunals could not supplement their reasons if their procedural rules did not provide for this: Hatungimana v Secretary of State for the Home Department [2006] EWCA Civ 231 at paragraphs 4 to 8. But they could do so if the procedural rules allowed: Barke v SEETEC Business Technology Centre Ltd [2005] EWCA Civ 578. In my jurisdiction, regulation 20(2) of the Social Security Commissioners (Procedure) Regulations 1999 gave me power to

'direct the tribunal to submit a statement of such facts or other matters as he considers necessary for the proper determination of that application or appeal.'

However, the reasons had to be those of the tribunal and not of the chairman.

62. Mr Chamberlain applied this analysis in this way. I had not exercised my power under regulation 20(2). The chairman had presented the additional reasons given on refusing leave to appeal as his reasons. He did not claim that they were those of the tribunals he had chaired.
63. Mr Bond did not wish to address me on this. I asked him about his experience and he said that he found the tribunals were generally good at providing their reasons for deciding as they did. He added that if in the circumstances of a case the outcome was not in doubt, there was nothing to be served by having a rehearing.
64. My analysis is this. It relates to decisions generally and is not specifically directed at these cases. They had a special feature in that Mr Bond had drawn the chairman's attention to a decision by the Veterans Agency in a similar case, which he commented on in detail.
65. I accept Mr Chamberlain's argument. A tribunal's reasons fulfil a number of functions. One is to provide the parties with information to decide whether there are grounds for an appeal. They cannot do that effectively if the tribunal does not given them its full reasons. The time to give those reasons is when the decision is made. When an application for leave to appeal is made, it may be appropriate to comment on the grounds. However, it is not the occasion to provide additional reasons that the tribunal had when it made the decision but did not disclose to the parties at the time. On those occasions when it is permissible and proper to provide additional reasons, they must be those of the tribunal as a whole and not those of the chairman.
66. Strictly speaking, therefore, additional reasons that are not properly given are not the tribunal's reasons and cannot remedy any inadequacy in the reasons originally promulgated. However, I accept Mr Bond's comment that rehearings are not appropriate if they serve no purpose. The Commissioner will have seen the additional reasons and may take them into account in deciding how to dispose of the appeal. The parties will also have seen them and may decide, in the light of them, not to pursue the case.

The other decision by the Veterans Agency

67. Mr Bond referred to a decision by the Veterans Agency in another case. The claimant had given her written consent for the particulars of her case to be disclosed and discussed. It is not relevant for me to deal with that case. My function is to interpret the law and decide how it should be applied. The way in which the decision-maker has interpreted and applied the law in a particular set of circumstances would not assist me in that.
68. I should record that Mr Chamberlain assured me that the circumstances in the other case were distinguishable. For the reasons I have given, it was not necessary for him to explain how.

Conclusion

69. Mr Bond began by saying that he was not a lawyer but a simple soldier. I was not deceived for long. He went on to construct an argument for the interpretation of articles 9 and 10 in the context of military culture, relying on the historical development of what is now called the Military Covenant. This is described on the Army's website (www.army.mod.uk) as:

'the mutual obligation between the Nation, the Army and each individual soldier; an unbreakable common bond of identity, loyalty and responsibility which has sustained the Army throughout its history.'

70. In general terms, it was a persuasive argument. But I have to give primacy to the language of the legislation. The drafting could have made clearer how the legislation applied to the circumstances of these cases. But that is not unusual. Applying ordinary principles of interpretation, the language is only open to one meaning. It is understandable that the tribunals would wish to bring the death of a conscientious soldier within the scheme for the benefit of his families. But with the best will in the world, the terms of the legislation do not allow that.
71. Finally, I should record that Mr Bond cited to me the case of Secretary of State for Defence v the Pensions Ombudsman and Cheryl Hulme [2003] EWHC 713 (Ch) and, on appeal, Secretary of State for Defence v Cheryl Hulme [2003] EWCA Civ 1611. I have read the judgments, but I have not found anything that leads to a different conclusion on the interpretation of articles 9 and 10.

Disposal

72. I allow the appeals and set aside the tribunals' decisions. In that eventuality, both Mr Chamberlain and Mr Bond preferred that I should substitute the decisions that the tribunals should have given rather than direct rehearings. That is what I have done.

Signed on original on 12 December 2007

Edward Jacobs Commissioner