UK Social Security and Child Support Commissioners' Decisions

 


[2007] UKSSCSC CAF_3904_2006 (14 September 2007)

DECISION OF THE PENSIONS APPEAL COMMISSIONER

1. The Secretary of State for Defence's appeal to the Commissioner is allowed. The decision of the London pensions appeal tribunal dated 11 July 2006 is erroneous in point of law, for the reasons given below, and I set it aside. It is expedient for me to substitute the decision on the claimant's appeal against the Secretary of State's decision dated 19 August 2005, having made the necessary findings of fact (Pensions Appeal Tribunals Act 1943, as amended, section 6A(4)(a)(ii)). My decision is that that appeal is disallowed and that the condition amputation left little finger (1946 - 1947) is not attributable to or aggravated by service.

The background

2. The claimant has a fascinating history. Only the bare bones can be mentioned here, but I do wish to place on record the deep gratitude and respect due to him from all in this country for his service during the Second World War, as to many others from similar backgrounds. I understand from the recently published book by Helen Fry, The King's Most Loyal Enemy Aliens, Sutton Publishing 2007 (which has gained some publicity from a gathering of veterans a week or so ago at the Imperial War Museum), that around 10,000 Germans and Austrians joined the British armed forces in that time, out of a total of around 75,000 refugees from those territories who came to Britain between 1933 and 1939.
3. The claimant was born on 3 June 1923 in Vienna, then part of Austria-Hungary. He took Polish nationality from his father. The family was of Jewish extraction. After the German occupation of Austria in March 1938 the Polish government revoked the citizenship of all Jews who had been resident outside Poland itself for the previous five years. The claimant thus became stateless. Through the efforts of a British Quaker group, he was placed on one of the Kindertransport trains and on to England in 1939. The intention was that he would train in animal husbandry and go to work in Australia. He was not interned at the time of the fifth column scare in 1940, apparently because he was neither an Austrian nor a Polish citizen, and was not eligible for the Polish forces. He enlisted voluntarily in the Royal Air Force Volunteer Reserve (RAFVR) in 1943. The sequence as it now appears is that he enlisted in the RAFVR on 8 June 1943, but was not called out on active and full-time service until 23 August 1943. That is consistent with his record of service (pages 49 and 49A and in other places) and with the entries on his certificate of service and release and his release authorisation showing full-time service as beginning on 23 August 1943. He was a wireless operator and took part in operations with Bomber Command against Germany in 1944 and 1945 and also in the questioning of prisoners of war, rising to the rank of Flight Sergeant.
4. On 19 February 1946 the claimant was released from service under Class B and relegated to Class [something illegible] (ii) of the Reserve. He was, according to his certificate of discharge, having been released from the Royal Air Force on 19 February 1946, discharged from the Royal Air Force on 25 July 1949 by reason of enlistment into the RAFVR. It is now known that he signed on for a new five-year engagement in the RAFVR, which ended on 25 July 1954. I shall have to come back in considerable detail to the meaning and significance of those events, which are at the heart of this case.
5. The claimant was informed in his release authorisation in his service and release book (which he produced at the oral hearing and has been copied in full) that he had been released to take up employment as a general farm worker and was directed to report to the Employment Exchange in Newbury, Berkshire. The general conditions stated that if a person released under Class B discontinued the employment to which he had been directed (except for ill-health), the release would be revoked and the person recalled to service. The claimant did work on a farm at Bucklersbury where in 1947 or 1948 he had an accident in which he caught his left hand in a hay baler, causing injuries leading to the amputation of his left little finger. The claimant had a medical board under the aegis of the RAFVR on 23 August 1949 at which he apparently said that the amputation had occurred 2½ years ago.
6. On 3 February 2005 the claimant, who had many years before emigrated to Canada, signed a claim form for a disablement pension in respect of the amputation, under Article 5 of the Naval, Military and Air Force Etc (Disablement and Death) Service Pensions Order 1983 ("the Service Pensions Order"). For convenience I shall continue to refer to that Order despite its replacement by the 2006 Order. On the form the claimant accurately answered the questions asking for his dates of enlistment in and discharge from service as 23 August 1943 and 25 July 1949 and enclosed a copy of his certificate of discharge and his certificate of service and release. After sending the claimant for medical examination, the Secretary of State, through the Veterans Agency, rejected the claim on 19 August 2005.

The appeal to the PAT

7. The claimant appealed. He wrote this on the form signed on 4 October 2005:

"My release from active service was conditional to my entering agricultural work until the date of my discharge. Although released from active service I was still under control of the RAF."

After the initial statement of case was prepared by the Veterans Agency and issued to the claimant, his representative, Mr John Whitehead of Shiner Kent, Barristers and Solicitors, made the arguments in a letter dated 17 November 2005 that the claimant had been directed into agriculture by the Air Ministry and was still under their control when he was injured and that he was not properly demobbed and discharged as most were, but retained, probably because he was a highly skilled German-speaking wireless interception NCO. His transfer to agricultural work by the RAF was likened to the detached duty of a serving soldier.

8. A first hearing by a PAT was adjourned for various pieces of information to be provided. By the time of the hearing on 11 July 2006 the information included a record of service on form 543 (with the information that the claimant had married in April 1945 and at some point had take British nationality, and recording "d.p.e." against current engagement and that the effective date of release was 19 February 1946 and the date of discharge 25 July 1949), extracts from King's Regulations on release from the army to the reserve under Class B and from War Pensions Department guidance on February 1967, and a full copy of an undated booklet entitled Release and Resettlement.
9. The Secretary of State's case, as summarised in the reasons for maintaining decision at page 66, was that the claimant had, like many others (not just stateless persons), volunteered for service for the duration of the present emergency ("dpe"), but that there was no expectation that all such volunteers would be released on the same date or immediately after VJ day. It was said, by reference to the booklet, that Class B release was an option offered to personnel with the right skills to be released before they reached their turn under standard Class A release (a points system based on age and length of war service). It was not accepted that the claimant's release was in any way irregular.
10. The Secretary of State also relied on the judgment of Drake J in Secretary of State for Social Security v Muir (5 July 1991). The claimant there had begun service with the RAF in 1943 and started air crew training. For some reason that was not definitively identified that was interrupted and, according to his certificate of discharge, he volunteered for service in the coal mines and was released from service under the Armed Forces (Conditions of Service) Act 1939 ("the Conditions of Service Act") from 11 June 1944. On 10 March 1947 he was discharged from the RAF. He made an unsuccessful claim for a disablement pension under the Service Pensions Order in respect of bronchitis and asthma that arose from his work in the mines. A PAT on appeal decided that the Secretary of State had failed, under Article 4, to prove beyond reasonable doubt that the claimant was not a serving airman while working in the mines. Before Drake J the Secretary of State accepted that the burden was on him under Article 4 to show that the claimant's condition arose from a non-service occupation. The judge agreed that that burden had been discharged, even though there was some dispute as to the claimant's exact status between June 1944 and March 1947. Whatever that status (although it seemed that in that period he was on the reserve), he was on the PAT's findings of fact in a civilian occupation, not a service occupation, when working in the mines.
11. Mr Whitehead had added to the claimant's case, in his letter dated 18 May 2006, the argument that his release had been irregular and should not have been allowed, because British citizens domiciled overseas were immediately discharged in 1945, as were free Dutch, Poles etc who were returning home. The claimant may therefore have remained a serving member of the RAF, on detached duties at best. Muir was distinguished on the grounds that, as British citizen, he would have been subject to conscription and that he volunteered to work in the mines, so that his release was lawful. It was said that the claimant did not volunteer to return to farming or to be released.
12. The claimant and Mr Whitehead attended the hearing on 11 July 2006 and produced his service and release book. In the course of his evidence the claimant agreed that he had chosen to be released under Class B. The PAT allowed the appeal and found that the claimant had shown a reasonable doubt in his favour based on reliable evidence that the condition was attributable to service. Its reasons included the following:

"In addition the record indicates the current engagement is for the `Duration of the Present Emergency'. It was asserted and accepted on behalf of the appellant that all non-UK nationals were discharged in 1945 at the end of hostilities. This being so, he was compelled to continue in service against prevailing regulations. He then opted for release Class B and the injury was therefore due to factors of service.

Given the uncertainties as to the term of engagement and status of the Class B release, the Tribunal accepts that the legality of the compulsion to carry out agricultural work under Class B is called into question. The Tribunal consequently accepts the argument put forward on behalf of the Appellant that there was no real option for him to carry out farm work but forced to do so against regulations. In these circumstances the Tribunal accepts that the injury was due to service."

The appeal to the Commissioner

13. The Secretary of State now appeals against the PAT's decision with the leave of the President of PATs. After a round of written submissions, I granted the request on behalf of the claimant for an oral hearing. This took place on 6 June 2007. The claimant was present and was again represented by Mr Whitehead. The Secretary of State was represented by Mr Daniel Beard of counsel, instructed by the Treasury Solicitor. I am grateful to both representatives for interesting submissions. Time was allowed after the hearing for short written submissions to be made about the relevance, if any, of the Military and Air Forces (Prolongation of Service) Act 1939, which reached me at the beginning of July, although they had been put in more promptly. I am sorry that it has taken much longer than predicted for me to issue this decision.
14. I shall not set out all the submissions made at different stages of the case before me, but refer to them as necessary in explaining my conclusions.

Did the PAT go wrong in law?

15. I have no doubt that the PAT did err in law in at least two respects: (a) that it failed to say anything at all about the Secretary of State's submission that the decision in Muir was conclusive of the case; and (b) that it wrongly decided on the basis that the claimant only needed to show a reasonable doubt in his favour that he was serving as a member of the armed forces at the date of the accident in which his finger was injured.
16. In relation to Muir, there is not an exact equivalence in the facts of that case and of the present case, as the Secretary of State submitted. Mr Muir went to work in the mines before the scheme for releases in Classes A, B and C was adopted, as I understand it. His records indicated that he had volunteered to do that work, although his case was that he had been seconded to that work, but it was eventually after full investigation of the records confirmed that he had been released under the Conditions of Service Act.
17. Section 5 of that Act applied to airmen. Subsection (1) provided that, notwithstanding some existing legislation, a person:

"may, during the period of the present emergency, be enlisted to serve His Majesty as an airman of the regular air force or of the air force reserve until the end of that period."

Section 7(a) defined the period of the present emergency as the period from 1 September 1939 (the date the Act was passed) to the date on which an Order in Council declared the emergency to have come to an end (19 March 1946 as it turned out). Then section 5(2) and (3) provided (leaving out a final part of subsection (3):

"(2) At any time during the period of the present emergency an airman of the regular air force may, by order of the competent air force authority, be released from air force service; and, so long as the order remains in force, he shall be in the position in which he would be if no proclamation ordering the air force reserve to be called out on permanent service were in force, and he had, at the time of the making of the order, been duly transferred to that reserve.

(3) Any order under the last preceding subsection may be revoked by the competent air force authority; and on revoking such an order the said authority may, if the term of service of the person with respect to whom the order was made has not expired, give directions requiring him to re-enter upon air force service and to attend at the time and place fixed by those directions."

18. Thus, although I think that the Secretary of State was wrong to say that Mr Muir had volunteered for a Class B release, his release was on similar terms. He was, by virtue of section 5(3) of the Conditions of Service Act, liable to be recalled to service at any time prior to final discharge from service on the revocation of the release order. Nor do I think that the distinguishing features put forward by Mr Whitehead for the claimant or which could be inferred from the PAT's approach took away from the relevance of Muir. That relevance stemmed from the emphasis in Muir on the realities of what he was doing in the relevant period, rather than the legal niceties of his exact status. One of the Secretary of State's central submissions was that even if, which was not admitted, there was something irregular in the claimant's release, the fact was that he had been released from service and was working in a civilian occupation. If the PAT rejected that submission and rejected the relevance of Muir, it needed to say so expressly and to explain why. Its failure to do so was an error of law.
19. The second error of law relates to the burden of proof. In paragraph 22 of his judgment in Secretary of State for Defence v Rusling [2003] EWHC 1359 (QB), 13 June 2003, Newman J said this:

"Although specific provisions exist in connection with the onus of proof which falls upon a claimant they do not relieve a claimant of the duty to establish certain ingredients of the claim. A claimant must establish:

(i) military service; and

(ii) disablement.

These matters, if established on a balance of probabilities, shift the onus of proof in connection with attribution or causation to the Secretary of State."

The reference to shifting the burden of proof was appropriate in Rusling as it was a case arising under Article 4 of the Service Pensions Order (Article 40 of the 2006 Service Pensions Order). In a case like the present which falls within Article 5 (Article 41), as the claim was made more than seven years after the termination of service, the shift would be to the claimant merely having to show a reasonable doubt in his favour in connection with attribution or causation. I followed that ruling in decision CAF/3326/2005, reported as R(AF) 1/07, in relation to the burden on a claimant to establish a disablement due to a particular injurious process and tried to show how in that respect it stemmed from approach of Denning J in the famous case of Royston v Minister of Pensions [1948] 1 All ER 778, 3 War Pension Appeal Reports 1593.

20. Neither Rusling nor Royston nor R(AF) 1/07 involved any question about the period for which the claimant had served. However, in my judgment the essential principle established in those cases is that the favourable burden of proof, involving the allowance of the benefit of any reasonable doubt to a claimant, only applies in disablement cases to the question of whether the injury that is a cause of the claimed disablement is attributable to or aggravated by service. That principle affects the prior establishment of service as a member of the armed forces as well as the establishment of disablement and injury. Mr Beard for the Secretary of State submitted that that result was correct and to have a sensible content required proof of service for some period of time that is relevant to the claim in question.
21. In Muir, an Article 4 case, the Secretary of State had accepted that the burden was on him to show that Mr Muir's condition arose from a non-service occupation. The learned judge put his conclusion in terms of the Secretary of State having proved beyond reasonable doubt that Mr Muir was not entitled to a service pension. That could be interpreted as an acceptance that a claimant never has to do more than show a reasonable doubt that he was serving at any particular date or, at least, that the question of the period of service was to be decided as part of the general issue of connection to service, with its favourable burden of proof. Mr Beard submitted that, if Drake J had intended to endorse such an interpretation, he was wrong and in any event the question was not necessary to the decision in Muir, as the Secretary of State was found to have proved his case whatever the burden of proof. I agree that what was said in Muir is not to be taken as any kind of definitive statement on the particular question before me and does not stand in the way of following the ruling in Rusling, which I consider right in principle.
22. Accordingly, the PAT erred in law in explicitly giving the claimant the benefit of reasonable doubt about whether he was serving at the date of his injury.
23. I shall have to come back in more detail to the meaning of service, but there are a few more general points that can be outlined here. The first is that while I agree that it is for a claimant to establish service in the armed forces for any particular period and that in general that must be established on the balance of probabilities, there may be room for the application of principles analogous to those set out by the House of Lords in Kerr v Department for Social Development [2004] UKHL 23 [2004] 1 WLR 1372, also reported as part of R 1/04(SF). The context was rather different from that of claims under the Service Pensions Order, being of a claim for a social fund funeral payment, and some of the analysis is to do with the consequences of an absence of information relevant to an issue on which it was for the Department to show that an exception from entitlement applied. But there was a reaffirmation of the principle that the process of benefit adjudication is inquisitorial rather than adversarial and one in which claimant and Department should play their parts in a co-operative manner. In general, if there was ignorance about some issue, it should be determined against the party who had not done all they reasonably could to discover the information (subject to any express provisions about the burden of proof). Thus, I do not entirely accept Mr Beard's argument that it makes sense for the burden of proving service for Service Pensions Order purposes to be on the claimant, because it is the claimant who is likely to have the information and armed forces documents might be not available. On the contrary, one would expect the Ministry of Defence to have retained some detailed records that would not have routinely been issued to personnel during or on termination of service (subject to the possibilities of accidental damage or destruction and of weeding in the course of a reasonable policy on document retention). There might therefore be circumstances (for instance, where a claimant had plainly proved that he had entered service but was unable to provide documentary support for the date to which he asserted that his service continued) where a claimant might be found to have proved his assertion if the Ministry had not done all that it reasonably could to produce relevant evidence.
24. The second general point is merely a reminder that, while in some cases a decision about whether the claimant was serving in the armed forces as a particular date will in practice be conclusive, it other cases it will not be. As established early on in Horsfall v Minister of Pensions (1944) 1 WPAR 7 it is not the case that "everything that befalls a serving soldier in the course of his service at his place of duty" is necessarily attributable to service. A claimant may be doing something within the "personal sphere" or otherwise unconnected with service, although there is the benefit of favourable burden of proof on that issue. But if a person is on leave or off duty or has even ceased service, there can still, depending on the circumstances of the particular injury, be a connection with service, in relation to which a claimant is entitled to that favourable burden of proof. For instance, if service has caused a weakness of some kind, as a result of which a claimant who has left service falls and suffers injury, that could be attributable to service.
25. For the reasons given in paragraphs 18 and 22 above, the PAT's decision must be set aside as erroneous in point of law. I do not need to consider here the Secretary of State's other submissions about what he said were irrelevant considerations taken into account by the PAT. I mention them as necessary below. Both parties agreed that in that event there was no point in any further hearing by a PAT and that I should substitute a decision on the appeal against the decision of 19 August 2005. As the main dispute is over the legal effect of events, that is plainly right.

The Commissioner's decision on the appeal

Definitions of service in the Service Pensions Order

26. It is I think common ground that, if the claimant's service from 23 August 1943 ceased on 19 February 1946, there is no possible argument that the injury to his left hand was connected to that service. To succeed, he has in practice to show that the work he was doing at the time of the injury was service for the purposes of Article 5 of the Service Pensions Order. There is a chain of definitions in Schedule 4 to the Order as amended at the date of claim. All are subject to the context otherwise requiring. "Service" is defined as:

"service as a member of the armed forces and the word `served' shall be construed accordingly."

"Member of the armed forces" is defined as:

"a member of the naval forces, the military forces or, as the case may be, of the air forces."

"Member of the air forces" is defined as:

"(2) in relation to service after 30th September 1921, an officer holding a commission in, or an airman of, the Royal Air Force, excluding--

(a) a member of a local force raised abroad for service with the Royal Air Force;

(b) a person excluded by the terms of his service from the benefits of this Order, or whose conditions of service include other provisions of a like nature;

(c) a member of a category or class specifically excluded from the benefits of this Order;

(d) a member of the Polish Resettlement Corps (Royal Air Force)."

An airman is a member of the air forces who is not an officer. There is also a definition of "termination", which in my view is not directly relevant.

27. Those definitions might be thought to go round in circles leaving you much where you started. However, I take one important point from them: that service is not constituted merely by being a member of the armed forces. It is constituted by service as a member of the armed forces. The points briefly mentioned in paragraph 24 above are consistent with that general principle.

Evidence of the process of Class B release

28. It is helpful to set out in full the conditions of release and authorisation on RAF form 2520/25 from the claimant's service and release book, omitting paragraphs relating solely to Class A and Class C releases:

"Under the provisions of the Armed Forces (Conditions of Service) Act, 1939, YOU ARE HEREBY RELEASED FROM AIR FORCE SERVICE, or if you are a member of the Auxiliary Air Force, released from the obligations to which you are subject by reason of embodiment.

The release is subject to and on the following conditions:-

1. You are relegated to a Reserve of the Royal Air Force unless you are a member of the A.A.F in which case you remain in the A.A.F.

2. You have not by this release been discharged from the Service. You remain liable to recall to Air Force Service until the Emergency is declared ended by Order in Council, when you will be discharged unless you are on an engagement extending beyond that date.

3. If you are recalled by Special Notice full instructions will be given to you as to where and when you are to report. If any general notice or proclamation is issued revoking releases or recalling the reserve to which you belong, you must immediately follow the Remobilisation Instructions in this Book.

4. You must notify Air Officer i/c Records (K Division), Gloucester, of any change in your permanent address both for Service reasons and to ensure that any communications in regard to any medals reach you.

5. If you become medically unfit through any sickness, injury or other disability which renders you unfit for further service and which is not temporary only, you must write to the A.O. i/c Records (K Division), Gloucester, enclosing a medical certificate.

6. Until final discharge you may not enter or enlist in any other branch of H.M. Forces or the service of any other country, or depart from the U.K. without permission from the Air Officer i/c Records. If you desire to do so, write to him for his consent.

7. After the effective date of your release (i.e. at the expiration of any leave granted or if no leave is granted the day of departure from the Dispersal Centre) you may not wear uniform except on any specially authorised occasions, unless you are recalled for service.

8. You should preserve the uniform which you retain on your release in good condition in case of recall.

9. If you handed any Medals to your Commanding Officer for safe keeping apply to Air Officer i/c Records (C.I.M. Section), Gloucester, for their return, giving full particulars.

10. Your pay and allowances cease on the effective date of your release unless the release is revoked and you are recalled to service. No reserve pay is issuable in respect of the liability to recall referred to in para. 2 attaching to your release.

...

12. The following conditions apply to Class B (National Reconstruction) releases only.

You have been released at the request of the Ministry of Labour and National Service. You will be directed by that Ministry to your reconstruction employment for the purposes to which you have been released. Instructions setting out the Employment Exchange or Employer to which and the date by which you are to report are set out below. You must comply with these instructions. If at any time you discontinue such employment, save for reasons of ill-health, your release will be revoked and you will be recalled to Service."

29. Those conditions are in line with the description of the conditions of Class B release in the "Release and Resettlement" booklet. Page 9 of that booklet contains this further explanation:

"At the end of your leave you will be transferred to a special class of the Reserve from which you could be recalled in an emergency. You will be directed to the reconstruction employment for which you are being released. You will be liable to recall to the Forces if you give up the reconstruction employment without permission of the National Service Officer of the Ministry of Labour and National Service."

By way of contrast, someone released under Class A, on the basis of the score worked out by age and length of war service, would be liable to recall to service from the Reserve only in an extreme emergency. A person released under Class A who did not have a job to go back to under the Reinstatement in Civil Employment Act 1944 or some other job could be directed to work by the Ministry of Labour and National Service (page 8). The final paragraph of that section (page 11) was as follows:

"Final Discharge

All persons released will remain liable to recall during the period of the emergency. Final relinquishment of commission or discharge will take place after the emergency is formally declared ended by Order in Council."

30. The policy behind Class B release was described in this way on pages 5 and 6 of the booklet:

"Certain urgent work of reconstruction, mainly building houses, will have to begin at once and the general scheme for release by age and length of war service will not of itself provide for the return of men with the required skill and experience in sufficient numbers and quickly enough for this reconstruction work. A limited number of men will therefore be given the option of transfer to selected industries out of their age and war service order, subject to special conditions; this will be known as Class B Release.

The Government will decide which industries or occupations are to be classed as reconstruction employments for the purpose of transfer from the Forces under Class B, and the Minister of Labour and National Service will specify the occupational classes and the numbers to be transferred. Men who accept release in Class B may be sent to work anywhere in the United Kingdom though they will be employed near their homes whenever possible. The individuals who will have the option of transfer to industry under Class B will be selected by the Service Departments from their Central Records, from the release groups next after those released in Class A. Selection will be based, as far as possible, on the principle of age and length of war service.

The number of releases in Class B will be small in proportion to the numbers in Class A and releases in Class B will not begin until a start has been made with Class A. In order to increase the numbers in Class A and to compensate for the release in Class B, numbers of young men at present deferred, particularly in the munitions industry, will be called up to the Forces. Class B will also include a limited number of individual specialists for whose transfer application may be made through Government Departments in accordance with existing procedure.

If you are nominated for release in Class B, you will be so informed by your Commanding Officer. It will be open to you to refuse release in Class B and to await your turn for release in Class A. You should, therefore, study carefully the difference in treatment of men released in Class A in their turn and of men released in Class B out of their turn, as set out in Section II below."

31. The booklet did not say anything specifically about non-British nationals or stateless persons serving in the forces. A short section on overseas settlement was aimed at British nationals wanting to settle abroad. Air Ministry Order A1063 of 25 October 1945 (produced in the proceedings before the Commissioner) contained elaborate instructions for the classification of members of the air force for Class A purposes, including in paragraph 18 exclusion from classification of various categories, such as allied nationals who were members of their own national armed forces as well as of the RAF and personnel of other forces who were on the posted strength of units but not members of the RAF. Order A456 of 25 May 1946 (if I have read the rather fuzzy fax correctly) noted a decision that certain foreign nationals serving in the British forces could be released independently of their age and service groups if they wished. But that seems to have been restricted to those serving in the overseas country in which they wished to be released and did not in so many words apply to stateless persons.

The effect of Class B release in general

32. I start with the effect of what I can call an ordinary Class B release, one without the complications of the claimant's membership of the RAFVR or the terms of his engagement or his status as a stateless person.
33. It is clear from the conditions stated in the `Release and Resettlement' booklet and in RAF Form 2520/25 that on release under Class B a person remained under quite significant obligations relating to the armed forces. It was quite clear that a person had not been finally discharged from service and became a member of the reserve forces, on special terms specific to the class of release. In that sense, the person might be said still to be a member of the armed forces. But I have no doubt that, in the terms of the definition of service for Service Pensions Order purposes, the person was not serving as a member of the armed forces.
34. No statutory definitions of the terms "release" and "discharge" in relation to service have been cited to me and I have not been able to find any. However, I am satisfied from the terms used in the documents mentioned above that discharge from service means a final relinquishing of all obligations relating to the previous period of service, so that any further obligations could arise only from a new enlistment or, for example, some new legislation imposing obligations. The precise consequences of release from service would no doubt depend on the conditions imposed in particular cases, but the general meaning is that the person is relieved of the obligations and benefits of actual service. In the case of Class A and B releases, the person immediately ceased to be entitled to service pay and allowances or to wear uniform. By implication, the person ceased to be subject to service orders and to the chain of command, but had a continuing liability to be recalled to actual service and not to take steps that would significantly encroach on the ability to return to actual service (such as joining another force or leaving the country without permission or not notifying a change of address). The extent of those obligations falls well short of an indication that the person was continuing to serve as a member of the armed forces.
35. The special feature of Class B release was the direction to a particular type of reconstruction employment, or even it seems to a particular employer, with the sanction of revocation of release for leaving that employment. However, it was the Ministry of Labour and National Service that was in control of the process, in indicating the areas of employment where workers were needed and through the Employment Exchanges in detailed direction to specific employers. At the time "national service" had a much more general scope than the later scheme of conscription of young men into the armed forces and there was quite a degree of direction of civilian labour, with conditions and sanctions attached. I have tried to give some flavour of that by quoting extensively from relevant contemporary documents above. In those circumstances, the fact that the claimant here was directed to agricultural work as a condition of his release and was subject to the sanction of revocation of release if he left such work does not mean that he was still subject to the control and orders of the RAF in a way that meant that he was still serving as a member of the air force. His position was very different from that of a soldier on detached duty, the analogy put forward by Mr Whitehead on his behalf.
36. That conclusion is of course consistent with the decision of Drake J in Muir. I should follow and apply the legal principle for which that decision stands unless satisfied that that principle is wrong or not relevant to the case before me (see paragraph 20 of R(AF) 1/07). I have explained in paragraph 18 above why I consider that the decision is relevant to the present case although it did not involve a Class B release. Although the reasoning in Drake J's decision is fairly compressed, it seems to me that what he meant by saying that Mr Muir was working in a civilian occupation after being released from service under section 5(2) of the Conditions of Service Act was much the same as I have set out in the previous paragraph. Section 5(2) carried with it under section 5(3) a general right to revoke the release for any reason. There was thus a similar degree of control by the air force authorities and I do not think that the special feature of Class B release removes the relevance of Muir.
37. Nor does another of the points of distinction raised by Mr Whitehead. He said that Mr Muir had volunteered to work in the mines, but that the claimant had not volunteered for Class B release, regarding himself as having been instructed to return from Germany to go into farming. First, Mr Muir also regarded himself as seconded to the mines after a bottleneck developed in air crew training. Second, the claimant here agreed before the PAT (see the chairman's record of proceedings at page 80) that he chose to be released in Class B and, as appears from paragraph 30 above, it was no part of the scheme that individuals should put themselves forward for release. They would be nominated and then had the opportunity to opt out. But the differences do not matter. The important thing is not how the person came to be released from service, but that he was released and what the conditions of release were. I come back below to another point of distinction put forward by Mr Whitehead. In the present context I follow and apply Muir.

Membership of the RAFVR

38. It seems clear from the claimant's certificate of service and release that his service from 23 August 1943 was as a member of the RAFVR. Why could this make any difference? I quite accept Mr Beard's point that there were not parallel air forces operating during the Second World War. Once a person in the RAFVR was called up to active service, as the claimant was, he simply became a part of whatever RAF unit he was assigned to. The argument (although not prominent at the oral hearing, rather than in earlier submissions) is that it makes a difference to the applicability of section 5(2) of the Conditions of Service Act. That only authorises the release of an airman of the regular air force. The claimant's release in Class B was, according the conditions of release and authorisation in his service and release book, under the Conditions of Service Act or, for members of the auxiliary air force, by release from the obligations imposed by embodiment (which was in fact covered by section 6 of the Act). Thus, it was argued, if the claimant was not in the regular air force or the auxiliary air force, but, say, in the air force reserve or the RAFVR if separate, there was something irregular about his release from service and he should be regarded as still serving.
39. The further submissions of 22 February 2007 on behalf of the Secretary of State had attached a copy of Air Ministry Order A492, dated 23 November 1939, which set out the effect of section 5 of the Conditions of Service Act. A footnote stated that an "airman of the reserve (including the R.A.F. Volunteer Reserve) who has been called out for permanent service is an airman of the regular air force". That is highly persuasive of the legal position at the time, such that I have not engaged in any further research into the constitution of the auxiliary air force, the air force reserve and the RAFVR (which Mr Beard's further submission dated 19 June 2007 on behalf of the Secretary of State suggests was not formed until about 1937). On that basis, there appears to have been authorisation for the claimant's release in section 5(2) of the Conditions of Service Act. But even if there was not such authorisation, the fact remains that the claimant was released from service and the conditions of release under Class B were in fact applied to him. I do not see why, if for some reason the provisions of section 5(2) did not apply to the claimant's circumstances, the air force authorities would not have had the power to bring to an end the claimant's call up to active service from the RAFVR. On the conditions in fact applied to him, the claimant was not serving as a member of the armed forces at the date of his accident.

The terms of the claimant's engagement

40. As noted in paragraph 8 above, the claimant's form 543 noted that his engagement was "d.p.e.", ie during the present emergency. The origin of that phrase seems to lie in section 5(1) of the Conditions of Service Act and legislation in other fields passed at about the same time. I am not sure what change was being made by section 5(1). Possibly enlistments had previously had to be for some fixed term. Whatever the effect, such engagements were normal (and see the following paragraph). I cannot see how the engagement being on that basis alters the case at all. The emergency was declared by Order in Council to have ended on 19 March 1946. It seems clear that that declaration did not automatically bring engagements during the present emergency to an end. There had to be a discharge from service to bring all obligations to an end. And if the declaration had had an automatic effect it would have weakened whatever argument the claimant had that he was serving as a member of the armed forces at the date of his accident.
41. I can deal here with the point on which further written submissions were made after the oral hearing. I had raised the possible relevance of the Military and Air Forces (Prolongation of Service) Act 1939, which had only one substantive section:

"1.--(1) This section applies to every soldier of the regular forces, man belonging to the army reserve, man of the territorial army, airman of the regular air force, man belonging to the air force reserve or man of the auxiliary air force who, apart from this Act, would be entitled to be discharged at any time after the date of the passing of this Act [5 September 1939] and before the end of the emergency, but does not apply to any person serving in the Royal Marine forces.

(2) The term of service of any person to whom this section applies shall be deemed not to expire until the end of the emergency.

(3) In this section the expression `the end of the emergency' means the end of such day as His Majesty may by Order in Council declare to be the day on which the emergency that was the occasion of the passing of this Act came to an end; and for the purposes of this section a man shall be deemed to be a soldier of the regular forces or an airman of the regular air force notwithstanding that he is fore the time being released from army service or air force service by virtue of an order under subsection (4) of section three, or subsection (2) of section five, of the Armed Forces (Conditions of Service) Act, 1939."

42. Both parties submitted that, whatever the effect of section 1(2), this Act did not apply to the claimant, but for different reasons. I prefer one of the reasons put forward by Mr Beard on behalf of the Secretary of State. In brief, that was that the Act only applied to those whose engagements came to an end before the end of the emergency. The claimant's engagement was during the present emergency and so could not in its nature end before the end of the emergency. It was submitted that the Act operated to extend the term of engagement of someone signed on for a fixed term, but had no greater effect. Mr Whitehead submitted that the Act only applied to those who were in service on 5 September 1939. Given the principle that an Act of Parliament is "always speaking" from the date on which it comes into force, I do not see why the Prolongation of Service Act should not apply to those whose service started after that date if they were on a fixed term engagement, even though in practice the great majority of engagements were on the same terms as the claimant's.
43. I do not need to reach a final conclusion on the other reason put forward by Mr Beard for the non-application of the Prolongation of Service Act. It was submitted, by reference to Air Ministry Order 201/1936 (not copied with the submission) that the RAFVR was distinct from the regular air force and the air force reserve, so that the Act did not apply to members of the RAFVR. The submission did not mention the auxiliary air force, but as that force had existed well before 1936 I assume that it did not cover the RAFVR. Mr Beard said that it was believed that all RAF entrants during the emergency were enlisted into the RAFVR. That all sounds a bit odd and might not be consistent, for instance, with the footnote mentioned in paragraph 39 above or with there having after the outbreak of war in practice been one air force. However, fascinating as it might be to pursue the legislative history of the RAFVR further, I have concluded that I should not further delay this decision to do so. That is first because it is not necessary to do so to decide that the Prolongation of Service Act does not affect the outcome of the present case. And second, even if the RAFVR were legally distinct from the regular air force, so that section 5(2) of the Conditions of Service Act did not apply to a member of the RAFVR, it would not alter my ultimate conclusion in paragraph 39 above.

The claimant's status as a stateless person

44. This was the factor which, in conjunction with the claimant's engagement for the duration of the present emergency, caused the PAT to decide in his favour. It was also the factor relied on most strongly by Mr Whitehead. His argument put very simply was that the claimant was in an almost unique position as a stateless person, so that he did not fall within the ordinary schemes for release. He should have been offered discharge from service as soon as the emergency ended or should have been allowed to go home at the end of the war as was allowed to foreign nationals serving in the British forces. As the claimant's release was defective, it should, Mr Whitehead submitted, be treated as of no effect, so that he continued to serve as a member of the armed forces until his final discharge in 1949. The claimant should be treated as though he were on detached duty on the farm when he was injured.
45. There are many flaws in that submission for the claimant. Without going into the details of all the extracts from official documents relied on by Mr Whitehead, I find that the evidence fell a long way short of establishing that foreign nationals were discharged or released ahead of the schemes for release set out in the Release and Resettlement booklet. In particular, paragraph 18 of Air Ministry Order 1063/1945 setting out categories who were not to be classified for Class A release only excluded Allied nationals as such if they were members of their own national armed forces. And Order 456/1946 allowed release of certain foreign nationals irrespective of their age and service groups only if they had been accepted for repatriation to their country of ordinary residence or other country of choice or they were serving in the country in which they wished to be released. And that referred to release, not discharge. Although Mr Whitehead argued that the claimant had not wanted to come back to Britain from Germany/Austria (and leaving aside the doubt cast on that by the Veterans Agency's representative's notes of the hearing of 8 February 2006), it would seem that by 1946 he was ordinarily resident in Britain, if anywhere. So the basis of comparison by which it was said that the claimant had been wrongly treated by not being discharged was not established. I do not go into any further detail (including the many personal stories of German and Austrian refugees in the book referred to in paragraph 2 above that involved not being demobilised until 1947 or 1948) because there are further flaws of principle in Mr Whitehead's submission.
46. One such flaw is that the claimant was released before the declaration of the ending of the period of emergency, so that arguments based on what should have happened at the end of that period fall away. A second is that it is a funny sort of defect in a release from service that the person should instead have been finally discharged from service. That seems to be what Mr Whitehead says in essence was wrong with the claimant's Class B release. But if that defect were accepted (leaving aside the not very attractive arguments for the Secretary of State that neither the PAT nor a Commissioner could impugn the validity of a decision made on behalf of the Minister in 1946), why should it lead to the consequence that the claimant continued in service. If he should not merely have been released, but discharged, surely the natural consequence would be that he was at least validly released from service. Finally, there is the point that I have already accepted above. The fact is that, regardless of arguments about validity, the claimant was discharged in Class B and the air force authorities relinquished the ability to control or to give orders about his day to day activities or any obligation to pay him or otherwise provide for him. In practice the conditions set out in his service and release book were applied to him. The consequence was that he was not serving as a member of the armed forces after 19 February 1946.
47. That conclusion is not altered by the terms of 1967 guidance from the then War Pensions Department (page 52 of the papers):

"Generally, when a member of the forces was released from service in order to undertake duties of a civilian character, his service pay ceased and he was transferred to some section of the Reserve. His subsequent duties were in no sense service within the meaning of the war pensions Instruments. A claim cannot normally be entertained under the Service Instruments in respect of disablement or death referable to the period of release."

Mr Whitehead pointed out the use of the word "normally" in the last sentence and suggested that the claimant's almost unique circumstances took him out of the normal category. My analysis above has been based on the terms of the Service Pensions Order and their application to the claimant's particular circumstances. Mere guidance in general terms does not affect that analysis. Nor does the later suggestion in the guidance of an exception where members of the forces are loaned or seconded for special duties not connected with the forces. I have already explained why the claimant could not be regarded as on detached duties.

Conclusion

48. Accordingly, despite the tenacity and learning of Mr Whitehead's submissions, I must conclude that the claimant has not established on the balance of probabilities that he was serving as a member of the armed forces at any date which could possibly be relevant in relation to the connection to service of the injury to his left hand. Although I have no doubt that that is the correct burden of proof, if the claimant were only required to show a reasonable doubt in his favour about whether he was serving as a member of the armed forces at the date of the injury I would have decided that he had failed to do so. The condition amputation left little finger (1946 - 1947) therefore cannot possibly be attributable to or aggravated by the claimant's service prior to 20 February 1946. He has failed to show a reasonable doubt in his favour on that connection. The claimant's appeal against the Secretary of State's decision dated 19 August 2005 must be disallowed. My decision to that effect is set out in paragraph 1 above.

(Signed) J Mesher

Commissioner

Date: 14 September 2007