UK Social Security and Child Support Commissioners' Decisions

[2008] UKSSCSC CAF_818_2008 (07 July 2008)

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

I SET ASIDE the decision of the Pensions Appeal Tribunal, held on 27 September 2007 under reference AFCS/00001/2006, because it is erroneous in point of law.

I REMIT the case to a differently constituted appeal tribunal and DIRECT that tribunal to conduct a complete rehearing of the issues that are raised by the appeal and, subject to the tribunal's discretion under section 5B(a) of the 1943 Act, any other issues that merit consideration, in accordance with the law as stated in this decision.

REASONS
2. As I shall shortly explain, there is no claimant in this case and I will refer to the person concerned as 'the soldier'.
3. This is an appeal by the Secretary of State brought with the leave of the deputy President of Pensions Appeal Tribunals, who chaired the tribunal. The Secretary of State has been represented by Ian Rogers of counsel. The soldier has been represented by James Bond of the Royal British Legion.
4. The soldier was born on 22 November 1987. After a short period as a bricklayer, he joined the army on 23 May 2005, but was discharged on medical grounds on 13 August 2005.

The decision under Article 37

5. Under the Armed Forces and Reserve Forces (Compensation Scheme) Order 2005, it is usually necessary to make a claim in order to be considered for an award: see article 35. However, regulation 37 provides for an exception that applies in this case:

'(1) It is not a condition of entitlement to benefit that a claim be made for it where-

(a) a member of the forces is discharged on medical grounds; …

(2) Paragraph (1)(a) only applies to injury benefit for the injury which caused the member of the forces to be discharged on medical grounds and any injuries arising from that injury or from the same incident that caused that injury.'

6. The effect of that article, although it is not explicitly stated, is that the Secretary of State must consider whether an award should be made. That is what happened in this case, but the Secretary of State decided not to make an award. The reasons given for that decision were that the soldier had a complex regional pain syndrome right leg, which had neither been caused by service nor made worse by service.
7. The Secretary of State attributed the soldier's symptoms to an injury to his right leg that occurred two-three years before he joined the army. This was based on medical records containing statements attributed to the soldier. He has denied making those statements and attributes his symptoms to twisting his leg during a training exercise.

The appeal to the tribunal

8. The soldier exercised his right of appeal and his case came before a Pensions Appeal Tribunal. The tribunal allowed his appeal. Its reasons, as provided by the chairman were:

'A. The Tribunal rejects the diagnosis of the invaliding condition (complex regional pain syndrome) for the following reasons.

1. There is no pre-service history in the preceding 18 months of the right leg pain or limitation. In particular, [the soldier] had:

(a) worked for 18 months as a builders labourer.

(b) completed the "look at life" course with an exemplary record and high fitness levels.

2. We accept the oral evidence today that the onset of the "condition" was a twisting injury to the right leg during the "tabbing" run.

3. No treatment (other than heat pads) was given prior to discharge on 13/8/07.

4. There has been no subsequent treatment or consultation since.

5. [The soldier] now works as a plumber and remains sportingly active.

B. Having found the above, we do not feel that we can substitute our own diagnosis, particularly because of the lack of post injury medical evidence. It would therefore be up to [the soldier] to submit a fresh claim which would ideally need to be supported by the above evidence.

C. We would observe that, since this injury appears to have resolved completely very soon after discharge, then any such claim is likely to be below Tariff level.'

9. The Secretary of State applied for leave to appeal to a Commissioner and this was given by the chairman.

The grounds of appeal

10. These were presented under a number of heads. In essence, they related to three matters: (i) the tribunal's decision on the facts; (ii) section 5B of the Pensions Appeal Tribunal Act 1943; and (iii) the procedure under article 37.

The tribunal's decision on the facts

11. Some of the grounds of appeal related to the tribunal's acceptance of the soldier's evidence of his pre-service medical history and the cause of his symptoms. If I were to consider only the tribunal's reasons as set out by the chairman, its decision would be wrong in law for inadequacy of reasons. The tribunal was entitled to accept the soldier's oral evidence and to do so in preference to the evidence of a number of contradictory statements in medical records. Doing so, though, required some explanation, which the chairman did not give.
12. However, there is more before me than simply the reasons given by the chairman. In addition to those, there are three matters that I take into account.
13. First, there are the records of proceedings made by the chairman and the service and medical members. They show that the inconsistencies in the account given by the soldier and the records of his statements to doctors were put to him and were discussed with the representatives at the hearing. I have to read the chairman's reasons in the context of what took place at the proceedings.
14. Second, the assessment of the evidence was connected to the medical view of the cause of the soldier's symptoms. The competing merits of the conflicting evidence had to be assessed in that context.
15. Third and least satisfactorily, there are the additional reasons provided by the chairman when she gave leave to appeal. I commented on this practice in CAF/2150 and 2151/2007. Those decisions are under appeal to the Court of Appeal, but the grounds of appeal do not relate to what I said on the practice of providing a further explanation on an application for leave to appeal:

'65. … A tribunal's reasons fulfil a number of functions. One is to provide the parties with information to decide whether there are grounds for an appeal. They cannot do that effectively if the tribunal does not given them its full reasons. The time to give those reasons is when the decision is made. When an application for leave to appeal is made, it may be appropriate to comment on the grounds. However, it is not the occasion to provide additional reasons that the tribunal had when it made the decision but did not disclose to the parties at the time. On those occasions when it is permissible and proper to provide additional reasons, they must be those of the tribunal as a whole and not those of the chairman.'

16. The present plan is for there to be changes to the tribunal structure under the Tribunals, Courts and Enforcement Act 2007, which are due to come into effect on 3 November 2008. I hope that, under the regime that will then be in place, a different practice will be adopted that is more in line with the practice of tribunals in the social security and child support jurisdictions. That will be to the benefit of all parties, who will be able to make an informed decision on whether there may be an error of law in a tribunal's decision.
17. However, working with the results of the current practice, the parties now know that the tribunal had some pertinent concerns about the qualified terms in which the doctors identified the soldier's medical condition. That, as I have said, formed part of the context in which the conflicting evidence had to be assessed.
18. Taking the chairman's reasons together with these other matters, I reject the Secretary of State's grounds of appeal in so far as they relate to the tribunal's findings of fact. There was a conflict in the evidence. The tribunal investigated it and discussed it at the hearing. It came to a conclusion of fact for reasons which now appear from the totality of the information before me. Those reasons are rational and I can find no error of law in them or in the process that led to them.
19. This is subject to the next issue.

Section 5B of the Pensions Appeal Tribunal Act 1943

20. This provides:

'In deciding any appeal, a Pensions Appeal Tribunal-

…

(b) shall not take into account any circumstances not obtaining at the time when the decision appealed against was made.'

21. In this case, the decision under appeal was taken as the original decision not to make an award, which was notified to the soldier on 19 September 2005, although that decision was later confirmed on reconsideration.
22. The Secretary of State has argued that the tribunal failed to comply with section 5B(b) in that it took account of what had and had not happened since 19 September 2005. Specifically, it took account of the facts that the soldier had had no further treatment or symptoms since discharge, was working as a plumber and was active in sport.
23. Section 5B(b) is not unique. Equivalent provisions apply to other jurisdictions: section 20(7)(b) of the Child Support Act 1991, section 12(8)(b) of the Social Security Act 1998, and paragraph 6(9) of Schedule 7 to the Child Support, Pensions and Social Security Act 2000. The provision has been repeatedly considered in the social security jurisdiction under the 1998 Act. I drew the parties' attention to my decisions in R(DLA) 2 and 3/01. Those decisions have, as far as I know, never been criticised in a Commissioner's decision and have been accepted without exception by representatives of the Secretary of State for Work and Pensions. I attempted to reconcile the statutory limitation with the use of evidence that was provided later and, perhaps, related to later circumstances in paragraph 9 of R(DLA) 2/01:

'9. … The effect is also to limit the evidence that is relevant to the appeal. The only evidence that is relevant is evidence that relates to the period over which the tribunal has jurisdiction. However, it is the time to which the evidence relates that is significant, not the date when the evidence was written or given. It does not limit the tribunal to the evidence that was before the officer who made the decision. It does not limit the tribunal to evidence that was in existence at that date. If evidence is written or given after the date of the decision under appeal, the tribunal must determine the time to which it relates. If it relates to the relevant period, it is admissible. If it relates to a later time, it is not admissible.'

The representative of the Secretary of State for Defence in this appeal has accepted that that reasoning applies to section 5B(b) and is consistent with the approach of Newman J in Secretary of State for Defence v Rusling [2003] EWHC 1359 QB Newman J said:

'71. The purpose of the section is to limit consideration on an appeal to an issue between the parties, which arises out of the decision appealed against, by reference to "circumstances obtaining" at the time when the decision was made. "Circumstances obtaining" means more than evidence which was in existence at the time when the decision was made. Circumstances obtain whether or not at the time of the decision there is evidence to establish their existence. The words do involve consideration of the state of affairs existing at the time of the decision. Therefore evidence on appeal should not be excluded if either:

(1) it was in existence at the time of the original decision, but was not considered by the Secretary of State; or

(2) it came into existence after the original decision, but relates to the state of affairs which existed at the date of that decision.

'72. The true nature of the disablement from which a claimant suffers at the date when the decision is made is a circumstance obtaining at the date of the decision. If medical reports written subsequent to a decision demonstrate that a claimant suffered from a disablement which had not been recognised in the reports available at the date of the decision, the subsequent reports relate to a circumstance "obtaining at the date the decision was made". The position would be different if the subsequent reports were based upon a change in the condition of the claimant, such change being subsequent to the date of the decision, because the change in condition would not have obtained at the date of the decision. This would be particularly relevant in an assessment appeal where changes in condition are likely to occur regularly.'

24. It is clear that the tribunal took account of circumstances that had occurred after 19 September 2005. However, the progress of a condition is indicative of what that condition actually is. There is nothing in the tribunal's reasoning to suggest that it took account of, or even considered, a new condition that arose after 19 September. The post-service history of the soldier's condition was relevant to what that condition had been during service and shortly thereafter.

Procedure under article 37

25. The issue is this. What should the tribunal have done once it decided that the Secretary of State had not correctly identified the medical cause of the soldier's discharge?
26. The tribunal's decision consisted of three elements: (i) the Secretary of State had made the wrong diagnosis; but (ii) it could not make the correct diagnosis on the evidence available; and (iii) the soldier had to make a claim and produce the necessary evidence to support it.
27. Element (i) in the tribunal's decision is significant. If it had decided that the soldier should not have been discharged on medical grounds, article 37 would not have applied. The tribunal would have had to decide to that effect and would have had no further jurisdiction. That would have left the soldier to make a claim under article 35 if he wished to pursue the matter.
28. However, that is not what the tribunal did. As far as I can tell from the whole of the information now available, the tribunal (which means in practice the medical member) was satisfied that there were grounds for a medical discharge. In those circumstances, the soldier was entitled to have his right to benefit considered under article 37 without a claim. The tribunal was not entitled to leave him to make a claim. So element (iii) in its decision was wrong in law for three reasons. First, it had the effect of subverting the legislative scheme. It required the soldier to make a claim when there were grounds for a medical discharge. Second, it did so because the soldier had exercised his right of appeal. It is self-evident from the terms of article 37 that a claim was not required for the Secretary of State to consider whether to make an award on discharge. How could the soldier's right to that procedure cease just because he had appealed to a tribunal? Third, the tribunal stood in the place of the original decision-maker: see paragraph 25 of the decision of the Tribunal of Commissioners in R(IB) 2/04. Having decided that the Secretary of State had wrongly diagnosed the invaliding condition, it should have correctly diagnosed that condition.
29. I am sure that the tribunal believed that the procedure it followed was for the soldier's benefit. It (and again this means in practice the medical member) did not have the evidence available to make a reliable diagnosis and considered that a MRI scan was required, which the tribunal could not order and the soldier's GP would not consider appropriate under the NHS. However, as the Secretary of State's representative has pointed out, the tribunal had power to take expert advice. That is a possibility that the tribunal may consider at the rehearing.
30. Ultimately, the soldier cannot have an award unless the evidence shows it is more likely than not that he satisfies the conditions for one to be made. If the evidence is not sufficient for that purpose, he is not entitled.

The chairman's other question

31. When she gave leave to appeal, the chairman set out three questions that she would like the Commissioner to resolve. I have dealt with two of them. The other question was:

'In circumstances where an appeal is made against the original decision, to what extent is the Tribunal empowered to consider evidence subsequently produced and considered by the Secretary of State at the Review stage?'

I have already dealt with that. However, the question continued:

'Are appellants to be required to lodge a second appeal against the Review decision simply to ensure that all evidence can be considered by the Tribunal? To do so would cause administrative complexities in effectively having two Appeals in respect of the same claim.'

32. I appreciate the difficulties and artificialities that section 5B can cause. They are not limited to the Pensions Appeal Tribunal jurisdiction. However, tribunals and Commissioners have to work with the legislation provided by Parliament. The issue of which decisions are appealable when there has been a reconsideration is likely to be considered by the Tribunal of Commissioners in CAF/1412 and 2162/2007. I will, therefore, not comment further.

Disposal

33. I allow the appeal and set aside the tribunal's decision, because the tribunal failed to give a decision on all the issues that arose before it. I have considered whether to remit the case to the same tribunal to complete its task, but have decided not to do so for these reasons. First, it may be difficult to assemble the members. Second, the medical member at least appears to have formed firm views. In the light of these factors in combination, I have directed a rehearing before a differently constituted tribunal. That tribunal will consider all issues afresh, including the correctness of the Secretary of State's diagnosis of complex regional pain syndrome.

Signed on original on 07 July 2008

Edward Jacobs Commissioner