Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL                                                        Appeal No.  CAF/554/2009

ADMINISTRATIVE APPEALS CHAMBER

Before            Upper Tribunal Judge A Lloyd-Davies

DECISION

I allow the claimant’s appeal and by consent give the decision that the tribunal ought to have given, namely, that the case should be remitted to the Secretary of State to make a separate award for the claimant’s condition of tinnitus (such award to be assessed separately from any award for the claimant’s hearing loss).

REASONS

1.         The tribunal decided that the claimant’s attributable condition of tinnitus was a related condition to the attributable condition of noise-induced sensory neural hearing loss within Article 42(4) of the Service Pensions Order 2006 and hence did not fall to be separately assessed.  The claimant appealed.  I granted permission to appeal on the footing that it was arguable that the claimant’s tinnitus, if it occurred before the hearing loss, should not be treated as a related condition given the way in which the relevant definition in Schedule 6 to the 2006 Order was worded.

2.         The Secretary of State, having reviewed the claimant’s case has, on the particular facts, decided to proceed to make a separate award for the condition of tinnitus (such award to be assessed separately from the claimant’s hearing loss) following the conclusion of the present proceedings.  The Secretary of State has produced a consent order (signed by both parties):  this recites the terms of my grant of permission to appeal, the review that has taken place and that there is no remaining appealable issue, and orders that the appeal should be dismissed by consent.

3.         I accept that the parties have agreed what the effective outcome of these proceedings should be.  In my judgment, however, the consent order signed by the parties is juridically unsound.   If the appeal is dismissed, the decision of the tribunal stands.  There is no power to review the decision of a tribunal except where there has been a relevant change of circumstances – see Article 44(3) of the 2006 Order.  There has been no relevant change of circumstances since the decision of the tribunal.  In any event any review (even if such a review was otherwise permissible) could only take effect from the date of the application for, or initiation of, the review, rather than from the date of the original claim.  In my judgment the appropriate course is to allow the appeal and give the decision which it is agreed that the tribunal should have given.  This is the course I have adopted.  Since the parties are agreed on the outcome of this case, I have not considered it necessary to give any further
reasons for this decision:  indeed it would be inappropriate for me to do so since I have had no full (or indeed any) submissions on the point of law I raised when I granted permission to appeal.

                                               (Signed)                   

                                                                                A Lloyd-Davies

                                                                                Upper Tribunal Judge

                                               (Date)                      23 July 2009