UK Social Security and Child Support Commissioners' Decisions

 


DECISION OF THE PENSIONS APPEAL COMMISSIONER

1. The claimant's appeal to the Commissioner is allowed. The decision of the Manchester pensions appeal tribunal dated 9 February 2006 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 12 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 9 February 2006 had erred in law for the reasons suggested when I granted leave to appeal and submitting that the case should be sent back to a new PAT for rehearing. In reply, the claimant's solicitors did not accept the submission that the case be referred back to a new PAT and stated the view that there should be an oral hearing having regard to the issues in dispute (mainly I think a reference to one of the rejected conditions being Gulf War syndrome and to a disputed issue of the effect of case's falling within Article 4 of the Naval, Military and Air Force Etc (Disablement and Death) Service Pensions Order 1983 (Article 40 of the 2006 Order). A legal officer wrote to the solicitors on 5 July 2007 to ask them to expand on those views before I determined whether there should be an oral hearing, in the light of what I had said when granting leave. The reply dated 2 August 2007 was as follows, after an apology for the small delay:

"We have carefully considered your comments and the previous documentation. Our view remains as previously stated.

We are not able because of time and funding constraints to set out our reasoning. This would take far too long. In the circumstances we would request an oral hearing."

3. I refuse the request for an oral hearing of the appeal to the Commissioner. There is no need for an oral hearing in order to conclude that the PAT of 9 February 2006 erred in law. I am further satisfied, for the reasons given when I granted leave to appeal (set out in paragraph 6 below), that there is no need for an oral hearing in order for me to give directions of law to the new PAT that will conduct a rehearing. The role of Pensions Appeal Commissioners is primarily to decide questions of law. This is not an appropriate case for a Commissioner to re-examine all the evidence (existing and potential new evidence) and make findings of fact. The appeal can properly be determined without an oral hearing (Social Security Commissioners (Procedure) Regulations 1999, regulation 23(3)). I am sorry that there has been a further delay before I have been able to issue this decision, especially as so much time was taken up in a legal officer's attempts to identify just what documents were before the PAT on 9 February 2006 (see his file note dated 23 January 2007 at page 325) and my grant of leave to appeal dated 25 January 2007 was not issued by the Commissioners' office until 2 March 2007.
4. The PAT was concerned with the claimant's appeals on the questions whether the conditions chronic fatigue syndrome and Gulf War syndrome were attributable to or aggravated by service. Although both conditions were included on one decision notice, there was a separate statement of reasons for Gulf War syndrome and it is the PAT's decision disallowing the claimant's appeal in relation to that condition that is the subject of the appeal to the Commissioner. I shall come back briefly below to the sequence of claims and decisions on Gulf War syndrome.
5. The PAT's reasons for decision, written on the standard form used in an Article 5 case (and thus including the standard statement that Article 5 applied to and governed the case), were as follows:

"It is a pre-condition of a claim that the Appellant can show the claimed disablement. The onus of proof is on the Appellant. The standard of proof is the balance of probabilities (see Royston v Minister of Pensions (1948) ROSWPA Vol 3 1593). `Disablement' is defined in the Order as `physical or mental injury or damage, or loss of physical or mental capacity' (Schedule 4, Part I). `Injury' is further defined as including `wound or disease'. The Appellant's claimed disablement is `Gulf War Syndrome'. We find that this term is essentially a reference to a geographical location and/or a historical event, which the addition of the word `syndrome' does not elevate into an identifiable injury, damage, wound or disease. It does not describe a discreet pathological entity. We find that `Gulf War Syndrome' is not a `disablement' within the meaning of the Service Pensions Order. The Appellant has failed therefore to show the claimed disablement."

6. This is what I said when granting the claimant leave to appeal on 25 January 2007:

"For the avoidance of any possible future doubt I confirm that the application to the Commissioner for leave to appeal was made within time and that the chairman of the pensions appeal tribunal (PAT) appears to have treated the application to him as within time from the date that a copy of the written statement of the PAT's reasons was sent to the claimant.

It is arguable that the PAT failed to give any adequate reasons to explain why it decided that gulf war syndrome was not a discrete pathological entity which could amount to an `injury' or `disablement' within the meaning of Articles 4 and 5 of the 1983 Service Pensions Order, rather than merely state that conclusion. The statement of reasons did not refer to the considerable volume of evidence and submissions relied on by the claimant, including the reasoning of the PAT in the Martin case, and say what it made of all that.

However, my preliminary and provisional view of the case is to agree with the comment of the chairman of the PAT when refusing the claimant leave to appeal that it did not matter to the PAT's decision whether the case was treated as falling within Article 4 or Article 5. Under both Articles, as decided in Royston v Minister of Pensions [1948] 1 All ER 778, 3 War Pension Appeal Reports 1593 and confirmed in Secretary of State for Defence v Rusling [2003] EWHC 1359, 13 June 2003 (see paragraphs 22, 30, 38 and 78 of Newman J's judgment), it is for a claimant to show that he is suffering from the injury claimed and some resulting disablement. The onus is on a claimant to prove that on the balance of probabilities. Only once that is proved is the burden put by Article 4 onto the Secretary of State to prove beyond reasonable doubt that the injury was not attributable to or aggravated by service. In the present case, the PAT decided against the claimant on the preliminary Royston question, so that it would have decided against him under Article 4 just as much as it did under Article 5. I attempted to explain some of those basic propositions in what I am afraid was a very long decision, CAF/3326/2005 [now reported as R(AF) 1/07]. Because of its length I am not attaching a copy to this ruling, but if the Secretary of State relies on it to any extent in the submission directed below, the claimant will be supplied with a copy. It is available on the Commissioners' website (www.osscsc.gov.uk).

Partly for the reason just explained, my preliminary and provisional opinion is that, if the decision of the PAT were to be set aside for the error of law identified above, the right outcome would be to refer the claimant's appeal against the decision of 23 March 2004 in relation to the rejection of gulf war syndrome to a new PAT for a rehearing, with directions to apply Royston as explained above and that the new PAT would only have to consider whether the case fell within Article 4 or Article 5 if the claimant proved that gulf war syndrome was capable of being an injury within the meaning of the Service Pensions Order and that he had suffered that injury and resulting disablement. Those questions seem to me pre-eminently questions that ought to be decided by a body with the expertise and experience of the members of a PAT, rather than by a Commissioner."

7. As mentioned above, the submission dated 2 April 2007 on behalf of the Secretary of State for Defence, while expressing the view that the PAT had been right to conclude that Gulf War syndrome is not a discrete pathological entity, accepted that its reasons were not adequately explained. In suggesting what directions should be given to a new PAT, in accordance with my directions of 25 January 2007, the Secretary of State accepted that the case should be considered in accordance with Article 4 of the 1983 Service Pensions Order, if the claimant discharged the initial burden of proving on the balance of probabilities that he suffered from the condition Gulf War syndrome, having appropriate regard to the decision of the PAT in the Martin case. The claimant's solicitors' reply dated 23 May 2007 did not agree with the Secretary of State's analysis or with the relevance of the Martin case where Article 4 applies.
8. I now conclude that the PAT erred in law by failing to explain its conclusion that Gulf War syndrome was not a discrete pathological entity and by failing to explain its view of the arguments and evidence put forward by the claimant. It did not even express agreement with the Opinion of Medical Services dated 20 October 2005, with its attachments, and the Secretary of State's reasons for the decision on entitlement. That might have gone some way towards an explanation, although those documents did not deal with the implications of the Martin case and the concession made on behalf of the Secretary of State and acted on by the PAT there. Thus the claimant was unable to understand why the PAT had rejected his case.
9. That is enough on its own to require the setting aside of the PAT's decision. I am satisfied that the PAT was also mistaken in describing the case as governed by Article 5 of the 1983 Service Pensions Order, rather than Article 4, although for the reasons given when I granted leave to appeal that error was not material to its decision (see, further, paragraph 10 below). It has been accepted in several places by the Secretary of State that this is an Article 4 case (apart from the submission dated 2 April 2007, see paragraph 2 of the Opinion of Medical Services dated 20 October 2005 (page 258) and the front page of the original statement of case on Gulf War syndrome (page 1C)). That appears to be correct from an examination of the documents before me. The letter dated 27 August 2004 to the claimant from the Head of Pensions at the Veterans Agency (pages 87A and 87B) accepted that the claimant had first claimed in respect of Gulf War syndrome on 23 December 1997, in conjunction with a claim in respect of post-traumatic stress disorder. As the claimant served until 4 October 1993, that claim was well within the seven years limit for Article 4. The letter of 27 August 2004 may have faintly suggested that the 1997 claim for Gulf War syndrome had been withdrawn, so that the only operative claim at the date of the rejecting decision (23 March 2004) was that lodged on 4 July 2003 (outside the seven years from termination of service). However, the basis for any withdrawal in the report of the claimant's telephone call of 8 January 1998 is fairly flimsy and, although the Veterans Agency's representative at a hearing on 5 November 2004 seems to have argued that the operative claim was made in 2003, that position has been overtaken by the other submissions mentioned above. It is clear that no decision in relation to Gulf War syndrome was made until 23 March 2004. The claim of 23 December 1997 is on the documents before me fairly to be regarded as still subsisting at that date.
10. However, the case being governed by Article 4 makes no difference to the initial burden on a claimant to show on the balance of probabilities that he suffers from the injury, wound or disease on which the relevant claim is based. Both Royston and Rusling were Article 4 cases. They constitute the essential authorities for the existence of that initial burden. Thus it would have made no difference to the PAT's conclusion if it had had it consciously in mind that it was dealing with an Article 4 case. The conclusion that it reached (although it failed to explain why) that Gulf War syndrome was not a discrete pathological entity, so that the claimant could not have been suffering from it, was fatal to the claimant's case under Article 4. For the same reason, the reasoning in the Martin case cannot be dismissed as irrelevant in Article 4 cases merely because it was an Article 5 case. Other PATs must of course make their own independent judgments of the merits or demerits of the reasoning used in that case, but that reasoning is equally relevant wherever the burden of proof lies on the connection to his service of whatever injury, wound or disease a claimant does show he has suffered from.
11. Accordingly, I set aside the decision of the PAT of 9 February 2006. The claimant's appeal against the decision of 23 March 2004 therefore remains outstanding and requires determination. There are fundamental differences between the parties on the existence of Gulf War syndrome and its use as a label for a condition on which a claim for a pension under the Service Pensions Order can be based, whether as an "umbrella term" or otherwise. However, the requirement for a rehearing will give the representatives of the Secretary of State the opportunity to make a further submission putting the present case into the context of what they understand to be the implications of the Martin decision, or possibly to take some further decision on review of the decision of 23 March 2004. I have no doubt that the evaluation of all the evidence and submissions should in the first instance be carried out by a body with the medical and service expertise and experience of a PAT, rather than by a Commissioner.

Directions to the new PAT

12. The claimant's appeal against the Secretary of State's decision dated 23 March 2004 is therefore referred to a differently constituted PAT for determination in accordance with the following directions. There must, in the absence of some further decision causing the appeal to lapse, be a complete rehearing on the evidence produced and submissions made to the new PAT, which will not be bound by any findings made or conclusions expressed by the PAT of 9 February 2006. The new PAT should, subject to any submission to the contrary, approach the case as governed by Article 4 of the 1983 Service Pensions Order, but must follow the legal approach to the initial burden on the claimant set out in paragraphs 6 and 10 above. I need give no directions of law about the conditions on which attributability to or aggravation by service can be found. 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: 8 October 2007