UK Social Security and Child Support Commissioners' Decisions

[2007] UKSSCSC CAF_3923_2006 (16 February 2007)

DECISION OF THE PENSIONS APPEAL COMMISSIONER

1. The appeal to the Commissioner by the Secretary of State for Defence is disallowed. The decision of the London pensions appeal tribunal dated 27 April 2006 is not one against which an appeal lies to a Commissioner under section 6A(1) of the Pensions Appeal Tribunals Act 1943. Accordingly, I have no jurisdiction to do more than disallow the purported appeal and declare the legal position to be as above.
2. There was an oral hearing of the appeal on 5 February 2007. The Secretary of State was represented by Mr Clive Lewis QC, instructed by the Treasury Solicitor. The claimant was represented by Mr Guy Opperman of counsel, acting pro bono and instructed by Moore & Blatch solicitors. In view of the unusual nature of the case and the submissions made at the oral hearing, amplified by brief subsequent written submissions, my decision goes into rather more detail that it might otherwise have done. I also take into account that the claimant was not able to attend the oral hearing and deserves an explanation of what is going on in his case.

The background

3. The claimant had the condition bilateral sensorineural hearing loss (noise induced) accepted as due to his service in the Fleet Air Arm from 1942 to 1946 by a decision dated 20 August 1992. The assessment of resulting disablement, on a final basis, was 6 - 14%. He received a lump sum gratuity. On 8 June 1999 a pensions appeal tribunal (PAT) sitting in London disallowed his appeal against a final assessment made on 20 February 1997 of the disablement due to that condition at 6 - 14%, on an application by the claimant on 9 September 1996 for review on the ground of deterioration. There was thus no increase of the claimant's existing assessment in that decision. The claimant wrote the Veterans Agency (VA) on 5 September 2005 applying for a further review and saying that his hearing had deteriorated considerably in the interim. The VA sent him an application for review form, which the claimant completed very clearly and signed on 16 October 2005. On 4 November 2005 the VA wrote to him as follows:

"I am writing in connection to your recent application for a deterioration claim of the condition Bilateral Sensorineural Hearing Loss (noise induced).

I am sorry but there are no grounds for reviewing the decision upheld by the Pensions Appeal Tribunal on 08/06/1999.

I am sorry if this is a disappointing response.

If you have any queries please do not hesitate to contact us."

There was nothing in the letter about rights of appeal.

4. The claimant consulted the Royal British Legion (RBL), who wrote to the VA saying that the claimant proposed to lodge an assessment appeal against the decision and asking them to send him the necessary forms. On 25 November 2005 the VA wrote to him saying that the Secretary of State's view was that "the law under which your claim and appeal was considered does not provide a further right of appeal" to the PAT, but that, as the PAT had the authority to consider and decide whether there was a right of appeal, the appeal forms were enclosed for completion if the claimant wished to pursue the matter. The claimant did appeal against the decision not to review the decision of the PAT of 8 June 1999.
5. In the statement of case prepared on behalf of the Secretary of State, the terms of reference to the PAT were put as follows (page 26D):

"The tribunal is asked to decide whether there is any statutory right of appeal against the decision of 4 November 2005 not to undertake a review. In the event that the tribunal considers that a right of appeal does exist, the Secretary of State may wish to place the matter before the courts for a ruling, and would request that the tribunal did not proceed beyond the jurisdiction issue which is the matter set before it."

The statement of case set out Article 67 of the Naval, Military and Air Force Etc (Disablement and Death) Service Pensions Order 1983 (the 1983 Service Pensions Order) on review, including paragraph (2A):

"(2A) Any assessment or decision made, given or upheld by the Pensions Appeal Tribunal ... may be reviewed by the Secretary of State at any time if the Secretary of State is satisfied that there has been a relevant change of circumstances since the assessment or decision was made, including any improvement or deterioration in the disablement in respect of which the assessment was made."

6. The section on the Secretary of State's comments included this:

"[I]t is the opinion of the Secretary of State that Noise Induced Hearing Loss does not deteriorate once exposure to excessive noise ceases. Any such deterioration in hearing in these cases will be due to non-service related factors such as ageing or post-service noise exposure, therefore does not accept that there are grounds to review that decision.

There is no statutory right of appeal against the decision of the Secretary of State not to undertake a review. Such a decision is not a Specified Decision as provided for under Article 5A of the Service Pensions Order 1983 as amended by the Child Support, Pensions and Social Security Act 2000 and accordingly, the Secretary of State is firmly of the opinion that this matter should fall outwith the jurisdiction of a Pensions Appeal Tribunal."

7. The reference above should have been to section 5A of the Pensions Appeal Tribunals Act 1943 (the 1943 Act), as inserted by the 2000 Act and subsequently amended by the Armed Forces (Pensions and Compensation) Act 2004. Subsection (1) provides that where the Minister makes a "specified decision" he must notify the claimant of the ground on which it is made and that an appeal against the decision lies to a PAT "on the issue whether the decision was rightly made on that ground". Under subsection (3) a "specified decision" is one not capable of being the subject of an appeal under some other provision of the 1943 Act and which is of a kind specified by the Minister in regulations. Regulation 3(1) of the Pensions Appeal Tribunals (Additional Rights of Appeal) Regulations 2001 specifies any decision made in exercise of any provision of the 1983 Service Pensions Order listed in Schedule 1 to the Regulations which refuses or discontinues an award, establishes or varies the amount of an award or establishes or varies the date from which an award has effect. Schedule 1 lists many Articles of the 1983 Service Pensions Order, but not Article 67 on review or Article 9 on determining the degree of disablement.
8. Section 5 of the 1943 Act provides that an appeal lies to a PAT from any interim or final assessment of the degree of disablement by the Minister and from a decision that there is no disablement. An appeal from a final assessment lies on the issues whether the circumstances of the case permit a final settlement and whether the Minister's assessment was right. The PAT's powers are in terms of upholding or setting aside the assessment or making either a higher or lower assessment.
9. Section 6A(1) of the 1943 Act provides:

"(1) Subject to the provisions of this section, an appeal shall lie to an appropriate Social Security Commissioner [known for this purpose as a Pensions Appeal Commissioner: Social Security Commissioners (Procedure) Regulations 1999, regulation 4(3)] from any decision of the Tribunal under section 1, 2, 3, 4 or 5A of this Act on the ground that the decision was erroneous in point of law."

The PAT's decision

10. The case was allocated a "specified decision" reference number by the PAT administration. The chairman of the PAT of 27 April 2006 recorded the reasons for its decision on a standard pro forma prepared for specified decision cases. The pre-printed text in paragraph 2 stated that the appeal was one under section 5A of the 1943 Act. The chairman crossed out the various pre-printed subjects of such an appeal and wrote in "review". The PAT's decision, as recorded on the formal decision notice and in the statement of reasons was to allow the claimant's appeal and to declare that the claimant had a right of appeal against the Secretary of State's refusal to review the PAT's decision of 8 June 1999.
11. I set out in full the chairman's carefully expressed reasoning, especially as the typed version later produced by the PAT administration failed to transcribe a continuation sheet of the handwritten original:

"The appeal was presented to us as an appeal against a refusal to review, the VA arguing before us today that as the PAT (Additional Rights of Appeal) Regs 2001 does not include `a decision not to review' as one of the specified decisions in respect of which a right of appeal is given, therefore there can be no right of appeal in this case.

The Tribunal drew that VA representative's attention to the fact that in other cases the VA has notified appellants that a review has been undertaken on application, but that the original decision is still appropriate and that there is a right of appeal against that decision.

The issue is bedevilled by the fact that in Art 67 the word `review' appears to be used to mean different things. It appears that at various points it is used to mean `re-view', ie look at again, or `to undertake a process' known to the VA as `review' or to mean `revise' (ie change).

In this appeal, [the claimant] provided evidence which in the Tribunal's decision must have led someone (possibly a lay person) in a decision on the existing file - namely that that evidence was insufficient to merit a change in the PAT decision and after which they defined their next step as being a decision not to review which in some way which is not made clear to the Tribunal differs from other cases in which they receive evidence but then notify an appellant that the original decision remains appropriate and that this gives him `a fresh right of appeal'.

There must be consistency in these matters and where there is doubt the individual entitled to the benefit of that doubt. The position cannot be construed one way in some cases and another way in others.

To arrive at the decision at which they did arrive, the VA must have reviewed the issue and therefore the two positions are homogenous.

For these reasons the appeal is allowed."

The PAT also added this comment after stating in paragraph 3 that the appeal was allowed:

"Whilst technically the Tribunal finds for the reasons given below that [the claimant] has a right of appeal against the decision `not to revise/review' (see below), we are of the opinion that any such appeal would have no merit although we accept that this is not a matter for this Tribunal today."

The appeal to the Commissioner

12. A closely reasoned application for leave to appeal to the Commissioner was made on behalf of the Secretary of State. The application submitted that the PAT had wrongly concluded that it had jurisdiction to hear an appeal in the light of the terms of the Additional Rights of Appeal Regulations and attacked the PAT's reasoning on the nature of review decisions. The President of PATs wrote to the representative of the Secretary of State on 20 June 2006 asking for views on a number of issues to do with review, plus whether the proper route for a remedy was to the Administrative Court on judicial review. There was then an exchange of detailed and technical arguments. The Secretary of State's first reply, dated 1 August 2006, gave the information that a protective application for judicial review had been lodged. The claimant became copied in to some of that correspondence and concluded that he needed to obtain legal advice of his own, so consulted solicitors, Moore & Blatch.
13. Eventually, on 4 October 2006, the President granted the Secretary of State leave to appeal to a Commissioner. He drew attention to what he saw as defects in the Secretary of State's arguments about review and to the range of contexts in which the outcome might be relevant. The Secretary of State's notice of appeal was lodged on 30 October 2006.
14. The papers were put before me to consider what case management directions to give. I immediately, on 17 November 2006, directed that there was to be an oral hearing to discuss whether I had jurisdiction to hear an appeal against the PAT's decision of 27 April 2006, without the need for an exchange of written submissions. I said that I specifically wanted to hear submissions on the following questions:

"3. The first question is whether, on the assumption for the purposes of argument that the decision of the PAT was under section 1, 2, 3, 4 or 5A of the Pensions Appeal Tribunals Act 1943, in accordance with section 6A(1), the nature of the decision made by the PAT brings it within section 6A(1). The issue referred to the PAT for decision (see page 26D) was whether there was a right of appeal to a PAT in the circumstances of the decision notified on 4 November 2005 that there were no grounds to review the claimant's assessment of disablement due to bilateral sensorineural hearing loss (noise-induced) at 6 - 14%. The PAT was specifically requested, if it were to conclude that there was a right of appeal, not to proceed to determine the appeal. The PAT of 27 April 2006 took that course. As I read its statement of reasons it clearly restricted its decision to the conclusion that there was a right of appeal. Is such a preliminary or interim decision, which does not bring an appeal to an end, appealable to a Commissioner under section 6A(1)? Looking for present purposes at sections 5 and 5A, the former empowers a PAT to confirm or alter assessments and decide whether decisions that there is no longer disablement are right and the latter empowers a PAT to decide whether the Secretary of State's decision on the claim of a type specified in the Pensions Appeal Tribunals (Additional Rights of Appeal) Regulations 2001 was rightly made. The PAT of 27 April 2006 did not do any of those things. Could it then be said to be a decision "under" any of the provisions listed in section 6A(1)?

4. I draw attention to the decisions of the Court of Appeal in Bland v Chief Supplementary Benefit Officer, R(SB) 12/83, and Carpenter v Secretary of State for Work and Pensions [2003] EWCA Civ 33, R(IB) 6/03 and to paragraphs 29 to 34 of the Social Security Commissioner's decision in CIS/1363/2005, CIS/2322/2005, CJSA/3742/2005 and CHR/3855/2005 (where an application by the Secretary of State for Work and Pensions for leave to appeal is pending before the Court of Appeal).

5. The second question is whether, on the assumption for the purposes of argument that there is no problem arising from the nature of the PAT's decision, the PAT's decision was given under section 5A of the 1943 Act, rather than section 5, which is not one of the provisions listed in section 6A(1). The case put before the PAT had been given a "specified decision" (ie section 5A) reference number and the PAT described the case in its statement of reasons as an appeal under section 5A. However, neither Article 67, as it was, on review or any provision as to rights of appeal is specified in Schedule 1 to the Additional Rights of Appeal Regulations so as to bring the case within regulation 3(1). The PAT did not base its decision on any interpretation of the Additional Rights of Appeal Regulations and of section 5A, but the logic of its statement of reasons was that a decision that there were no grounds of review should be treated in the same way as a decision that there was a ground of review, but the decision under review should not be revised. That is especially so when the final page of the handwritten statement (page 36), which was omitted from the typed version, is examined. A right of appeal was accepted as arising in the latter case, which it appears could only, in an assessment case, be under section 5. Accordingly, it appears to me that the PAT's decision, while in some ways purporting to have been made under section 5A, was in substance made under section 5. Does a Commissioner have jurisdiction to determine an appeal from such a decision? Or, alternatively, is a Commissioner's jurisdiction limited to a declaration that the PAT's decision purportedly under appeal was made under section 5, so that [there] is no jurisdiction to determine the substantive appeal?"

15. Unfortunately, a date for the oral hearing convenient to counsel on both sides could not be arranged until 5 February 2007. Helpful skeleton arguments were produced by both counsel.
16. Mr Lewis for the Secretary of State accepted, in the light of the decisions referred to in paragraph 4 of my directions and of other authorities that he mentioned, that the decision of the PAT of 27 April was an interlocutory rather than a final decision, as it did not dispose of the claimant's appeal against the Secretary of State decision of 4 November 2005. It was therefore not a decision against which an appeal could be made under section 6A of the 1943 Act and was challengeable only by way of judicial review. The Secretary of State did not, though, seek leave to withdraw the appeal to the Commissioner, as a reasoned ruling was sought for possible use in showing that the conditions for judicial review were met. Mr Opperman for the claimant did not disagree with those submissions, although he had submissions asking me to deal with other issues in addition.
17. In the circumstances, no detailed examination of authorities is needed. The decisions cited in paragraph 4 of my directions of 17 November 2006, and others, clearly establish for the purposes of the Commissioners' social security jurisdiction, that the general principle under the scheme of the Social Security Act 1998 and its subordinate legislation is that rights of appeal to a Social Security Commissioner do not lie from "a determination of any matter along the way leading to a decision" (see Laws LJ in Carpenter, R(IB) 6/03, paragraph 14, and Mr Commissioner Rowland in CIS/1363/2005 and others, especially paragraph 32), at least where the determination does not amount to a final disposal of the appeal. When section 6A of the 1943 Act, as in force from 6 April 2005, transferred appeals against certain PAT decisions to the Social Security Commissioners (under what could be called the nom de guerre of Pensions Appeal Commissioners), one would expect the same principle to apply. But that principle must, if necessary, yield to the particular terms of the legislation conferring the right of appeal, in the present case, section 6A of the 1943 Act. The word "decision" must be looked at in its particular context. For the reasons mentioned in paragraph 3 of my directions of 17 November 2006 I am quite satisfied that there is nothing in the context supplied by section 6A to point to any different result. The natural meaning of a decision by a PAT "under" one of the specified sections of the 1943 Act is of a decision which disposes of the issue on which the appeal to the PAT lies under the section in question. A decision such as that made by the PAT in the present case, determining that a right of appeal to a PAT existed, but consciously declining to go on and decide the claimant's appeal against the Secretary of State's decision of 4 November 2005, is not a decision within the meaning of section 6A of the 1943 Act. It can only be challenged by way of judicial review.
18. I record here that Mr Lewis referred me to two cases on whether magistrates or the Crown Court had a power to state a case to the High Court before they had reached a final determination on the matter before them (Streames v Copping [1985] 1 QB 920 and Loade v Director of Public Prosecutions [1990] 1 QB 1052) and R v Lands Tribunal, ex parte City of London Corporation [1982] 1 WLR 258 on whether the Lands Tribunal had a power in such circumstances. The answer in all three cases was in the negative. Those authorities were helpful, especially in showing that legislative provisions using the word "decision" without any express qualification could be construed as applying only to final decisions. But they were not in any way determinative in the particular context with which I am concerned.
19. My conclusion above is sufficient to require the further conclusion that I have no jurisdiction in the Secretary of State's purported appeal to the Commissioner to do more than declare that lack of jurisdiction. Mr Opperman urged me to express a reasoned conclusion on whether I lacked jurisdiction because the PAT's decision was given under section 5 of the 1943 Act and therefore fell outside section 6A(1). He submitted that it was of importance to the claimant to resolve the question of whether the PAT's decision was made under section 5 or section 5A, that if it was made under section 5 it produced a broader ground of lack of jurisdiction and that, as I had raised the issue in my directions of 17 November 2006, I ought to deal with it. Mr Lewis submitted that I should not express any reasoned conclusion and that if I wished to do so he would ask for the opportunity to make full submissions on the scope of section 5 and whether it extended to the sort of decision given by the Secretary of State in the present case on 4 November 2005. I am far from sure about that last point. However, I do not see why it is so vital that the issue be resolved now. In all the circumstances, including that the question of rights of appeal against decisions refusing to review or finding no grounds to review assessments of disablement appears likely now to be put to the Administrative Court, I should take this issue no further in the present decision. My preliminary and provisional view expressed in paragraph 5 of my directions of 17 November 2006 is already on the record.

Costs

20. Mr Opperman applied at the oral hearing, it having become clear that the Secretary of State accepted that his appeal to the Commissioner would have to be disallowed, for me to make an order for the claimant's legal costs to be paid by the Secretary of State, or at least to say that I would have made such an order if I had had power to do so. His submission, as refined in the further written submission that I allowed to be made, accepted that there is no power in the Social Security Commissioners (Procedure) Regulations 1999 or in any other legislation applying to the Commissioners for ordering one party to an appeal to pay the other's costs. The essential argument was that, as the avenue of appeal to the Commissioner had been hopeless from the outset and should have been recognised as such (and may actually have been so recognised: see the terms of reference to the PAT and the letter of 1 August 2006 from the representative of the Secretary of State), justice demanded that the claimant be reimbursed the modest legal costs that he had quite reasonably incurred in seeking to resist the Secretary of State's case on technical and complex questions of law. In the submission dated 8 February 2007 the costs incurred in the autumn of 2006 were put at £1057.50, reflecting that a large proportion of the work had been done pro bono.
21. That submission abandoned the suggestion that I could order the claimant's costs to be met out of central funds, that power applying only to courts. I think it also by implication abandoned reliance on C v Home Office and Criminal Injuries Compensation Authority [2004] EWCA Civ 234, which Mr Opperman had cited in support of a broad inherent power for administrative bodies or tribunals to pay the legal costs of a party. That abandonment was sound, as that case was, as shown by Mr Lewis at the oral hearing, based on the scope of a specific power under the Criminal Injuries Compensation Scheme 1995 for the Authority to meet certain reasonable costs of an applicant in connection with medical examination. What was left in the submission of 8 February 2007 was a request that I should recommend that the Ministry of Defence should make an ex gratia payment of the claimant's legal costs, coupled with a mention of a possible complaint to the Parliamentary Ombudsman of maladministration by the Ministry of Defence in launching an appeal which should never have been launched. Although Commissioners can recommend what they like, regardless of their legal powers, they pay particular regard to the danger of raising false hopes in relation to administrative systems for compensating those caused financial loss by administrative failures of government departments, when Commissioners are ignorant of the details of those systems and have no control over them. I agree with Mr Lewis in his reply dated 13 February 2007 that the present case is one in which it is not appropriate for me to make any recommendation, especially as there has been no in-depth investigation of all the circumstances and of the relative responsibilities of all concerned. That does not of course prevent the claimant and his representatives making whatever applications they think fit in relation to the legal costs incurred after the Secretary of State's application for leave to appeal to the Commissioner.

(Signed) J Mesher

Commissioner

Date: 16 February 2007