Upper Tribunal (Administrative Appeals Chamber)

[2009] UKUT 31 (AAC) (05 February 2009)
Main Category: War pensions and armed forces compensation

IN THE UPPER TRIBUNAL Appeal No. CAF/2916/2006

ADMINISTRATIVE APPEALS CHAMBER

Before: UPPER TRIBUNAL JUDGE ROWLAND

Attendances:

For the Appellant: Mr Keith Morton of counsel, instructed by the Treasury Solicitor

For the Respondent Mr Adam Baradon, barrister, of Lovells LLP

Decision: The decision of the Pensions Appeal Tribunal dated 11 May 2006 is set aside but there is substituted a decision to the same effect. The claimant is entitled to a child allowance on her claim made on 28 July 2005.

REASONS FOR DECISION

1. The claimant is a child, born in 2001. Her father served in the Royal Electrical and Mechanical Engineers from 1991 until he was discharged on 12 September 2004 on the ground that he was totally unfit for military service due to depressive illness. On 3 November 2004, he attended a medical board in connection with a claim for disablement pension under the Naval, Military and Air Forces Etc. (Disablement and Death) Service Order 1983 (S.I. 1983/883). The board found that he was suffering from grand mal epilepsy ("reasonably controlled with anticonvulsant therapy"), reactive depression and periodic overindulgence in alcohol. In the light of the board's findings, the Secretary of State decided on 18 January 2005 that the claimant's father was entitled to a gratuity on the ground that he had been suffering from a depressive disorder, aggravated by service and causing disablement assessed at 6-14%. However, by then, he was dead. His death, on 15 November 2004, was due to the effects of an epileptic fit but alcohol had played a role. The pathologist's supplementary report, sent to the coroner after tests had been carried out, said –

"The blood alcohol level at autopsy was 414 mg/100 ml. This is about five times the legal driving limit. Such levels can result in coma, severe respiratory depression and even death, especially in naïve drinkers. There is no indication of prescription or commonly abused drugs in this death."

This was further supplemented by an opinion to the following effect –

"It is likely that alcohol contributed to death, either by its direct toxic effects on the central nervous system or by precipitating one or more fits, a feature sometimes seen when levels are falling."

2. It was in the light of that that it was certified that the cause of death was epilepsy and that alcohol toxicity had led to it. It can be inferred that the coroner's view was that, as there was clear evidence that the claimant's father had actually had a fit and that he was not a naïve drinker, it was more likely that death had been caused by the fit than directly by the toxic effects of the alcohol he had consumed but that it was also probable, in the light of the alcohol level, that the fit had been precipitated by the alcohol and had not occurred spontaneously.
3. The claimant claimed a child allowance under the 1983 Order on 28 July 2005. The claim was rejected on 24 August 2005 and the claimant appealed. The Secretary of State's argument, as set out in his statement of case, was that the claimant's father's death "was caused by alcohol toxicity leading to an epileptic fit" and that "service played no part in the death". He referred to the relevant provisions in the 1983 Order (which has now replaced by the Naval, Military and Air Forces Etc. (Disablement and Death) Service Order 2006 (S.I. 2006/606)).
4. Under article 35 of the 1983 Order (now article 28 of the 2006 Order), a child allowance may be made "in respect of a child of a member of the armed forces whose death is due to service". By article 4(1)(b) and (2) (now article 40(1)(b) and (3) of the 2006 Order), which applies where death occurs within 7 years of the termination of service, –

"(1) … death … shall be accepted as due to service for the purposes of this Order provided it is certified that –

…

(b) the death was due to or hastened by –

(i) an injury which was attributable service; or

(ii) the aggravation by service of an injury which existed before or arose during service.

(2) … in no case shall there be any onus on the claimant under this article to prove the fulfilment of the conditions set out in paragraph (1) and the benefit of any reasonable doubt shall be given to the claimant."

5. By item 27 of Part II of Schedule 4 (now item 32 of Part II of Schedule 6 to the 2006 Order) –

"'injury' includes wound or disease but excludes any injury due to –

(a) the use or effects of tobacco; or

(b) the consumption of alcohol;

except that paragraph (a), in so far as it relates to the use of tobacco, and paragraph (b) above shall not apply where the person suffers from a mental condition which is attributable to service if –

(i) the degree of disablement in respect of that condition has been assessed at 50% or more; and

(ii) he started or continued to use tobacco or to consume or continue to consume alcohol due to that condition"

I observe that the words "or continue to consume" in head (ii) appear to be superfluous and to upset the grammar.

6. The tribunal did not accept the Secretary of State's submission and it allowed the appeal on 11 May 2006. I set out the chairman's statement of reasons in full.

"The burden of proof in this Appeal rests with the Secretary of State under Article 4 of the SPO 1983. We find that it has not been discharged. [The claimant's father], who had a distinguished service career, had been at home on sick leave since 8/10/02 following an overdose, which occurred in all probability as a result of his accepted disablement of depressive disorder. He was formally discharged from REME on 12.9.04 his death occurring some two months later on 15.11.04. His partner … gave compelling evidence, supported by the Statement of Case, that his accepted disablement remained a feature of his life, increasing in severity in the months prior to his untimely death. She gave evidence, supported by the Statement of Case that his 2^nd tour of duty in Bosnia had a profound effect upon him causing nightmares which became increasingly intrusive. Whilst it is clear from the Statement of Case that other factors also affected him e.g. family bereavements, the Tribunal found that his depressive disorder following his tour of duty in Bosnia was the causative trigger in the fatal injurious process. From [his partner's] evidence it is clear that as a direct result of his accepted disablement [the claimant's father] was incapable of managing his affairs and indeed would thwart attempts by [his partner] to ensure he took his prescribed medication. The Tribunal was unanimous in its view that taking an overall view of the evidence [the claimant's father's] accepted disablement was the causal link to the fatal injurious process leading him to a reckless disregard for his welfare. We found that the condition was caused by service and continued following his discharge from service. For these reasons we allow the Appeal. With regard to the Secretary of State's decision to accept the disablement but on aggravation only we have been mindful of the Appellant's [sic] state of health, his inability to manage his affairs and the proximity of the decision to his death. We find it disingenuous of the SOS to seek to hide behind this decision when the Appellant's [sic] capacity to understand the decisions being take was in question. Further we find no evidence of any attempts by the Secretary of State to ensure that [the claimant's father] knew of his rights to challenge the decision in the particular circumstances of this case."

7. The Secretary of State now appeals against the tribunal's decision with the leave of the chairman. It is submitted, first, that the proper application of the statutory provisions was bound to lead to the appeal being dismissed in the circumstances of this case and, in the alternative, that the tribunal made findings that it was not entitled to make, that it failed to give the Secretary of State an opportunity to deal with the grounds upon which it made its decision and that the chairman failed to record an adequate decision or adequate reasons for the decision. The claimant submits that the tribunal was entitled to give the decision that it did and that either it gave sufficient reasons for the decision or, in the alternative, that the evidence is sufficiently clear to enable me to substitute a decision to the same effect as the tribunal's.
8. Both Mr Morton and Mr Baradon relied upon the judgment of Lord Lane CJ in Regina v. Immigration Appeal Tribunal, ex parte Khan [1983] Q.B. 790, in which he said –

"The important matter which must be borne in mind by tribunals in the present type of circumstances is that it must be apparent from what they state by way of reasons first of all that they have considered the point which is at issue between the parties, and they should indicate the evidence on which they have come to their conclusions.

Where one gets a decision of a tribunal which either fails to set out the issue which the tribunal is determining either directly or by inference, or fails either directly or by inference to set out the basis on which it has reached its determination on that issue, then that is a matter which will be very closely regarded by this court, and in normal circumstances will result in the decision of the tribunal being quashed. The reason is this. A party appearing before a tribunal is entitled to know, either expressly stated by it or inferentially stated, what it is to which the tribunal is addressing its mind. In some cases it may be perfectly obvious without any express reference to it by the tribunal; in other cases it may not. Second, the appellant is entitled to know the basis of fact on which the conclusion has been reached. Once again in many cases it may be quite obvious without the necessity of expressly stating it, in other cases it may not."

Mr Morton emphasised the standard of reasoning required of a tribunal while Mr Baradon emphasised the point that a decision is not erroneous in point of law if adequate reasons may be inferred where they are not directly stated.

9. There can really be no doubt that the chairman's statement of reasons could have been clearer but I agree with Mr Baradon that, if the true reasoning can adequately be identified by reading the decision in its context, the decision should not be set aside merely because the reasoning is not as obvious as it ought to be.
10. Mr Morton focused largely on the last three sentences of the tribunal's decision, arguing that the tribunal had completely failed to consider the terms of the definition of "injury". He submitted that there had been no dispute before the tribunal that epilepsy had been the immediate cause of death, that the claimant's father had suffered from epilepsy since about May 2003 when he had been the victim of an assault while on leave, that that assault was not related to his service in the Armed Forces, that the particular fit that had led to the death had been caused by excessive consumption of alcohol, that that excessive consumption of alcohol was attributable to the depressive disorder and that, by the decision dated 18 January 2005, the depressive disorder had been found to be aggravated by, rather than attributable to, service and to have resulted in disablement assessed at only 6-14%. In those circumstances, he submitted death could not possibly have been the result of an "injury" because it was due to the consumption of alcohol and the statutory exception did not apply because the depressive disorder had not been found to be attributable to service and disablement had been assessed at less than 50%. If the tribunal's decision was to be read as including findings that the depressive disorder was attributable to service and that the resulting disablement was to be assessed at more than 50%, he submitted that the tribunal had acted without jurisdiction because there had been no appeal against the decision of 18 January 2005 before it.
11. In fact, since the tribunal's decision, there has been an appeal against the decision of 18 January 2005 and, on 12 June 2007, a differently constituted tribunal allowed the appeal and found that the depressive disorder was attributable to service. In those circumstances, Mr Morton was content not to take the point about the tribunal sitting on 11 May 2006 having apparently found the depressive disorder to be attributable to service – which, although an error, is no longer material – but there remains the issue whether it was entitled to find that the resulting disablement was to be assessed at more than 50%. The issue, of course, is whether that assessment decision made in the context of the claimant's father's claim for disablement benefit was conclusive for the purpose of the claimant's claim for a child allowance. Mr Morton accepted that no-one could have appealed against the decision of 18 January 2005 insofar as it was an assessment decision, because the claimant's father had died before the decision was issued and the Pensions Appeal Tribunals (Posthumous Appeals) Order 1980 (S.I. 1980/1082) does not permit a posthumous appeal against an assessment decision (see article 3(1), which refers to sections 1, 2, 3 and 5A of the Pensions Appeals Tribunals Act 1943 but deliberately omits any reference to sections 4 and 5). I have not investigated whether a posthumous application for review could have been made and whether, if unsuccessful, the claimant could have appealed against the resulting decision in her own right. It would be thoroughly unsatisfactory if no appeal could be brought in circumstances such as the present. However, I note that article 9(6) (now article 42(14) of the 2006 Order) appears to have made any extant assessment of disablement conclusive "for the purposes of any award made under this Order" and I am content to accept that the tribunal sitting on 11 May 2006 had no power to make a decision based on an assessment higher than 14%. In any event, as Mr Baradon accepted, if the tribunal did have power to make an assessment of 50% or more, the chairman failed to record a clear decision to that effect or adequate findings to support it.
12. However, Mr Baradon submitted that the last three sentences of the statement of reasons were expressed as they were because they were not a necessary part of the tribunal's decision. I accept this submission. The reasons for the decision must precede the sentence: "For these reasons we allow the appeal." The last three sentences of the statement appear to be additional comments. They may be regarded as surplusage, but it is unfortunate that they both mask the true reasoning of the tribunal and contain at least one error of law. Because this part of the statement is not an operative part of the tribunal's reasoning, the errors of law identified by Mr Morton are not material.
13. Mr Baradon's main submission was, nonetheless, a response to Mr Morton's submissions. He argued that the exclusion of injuries due to the consumption of alcohol simply could not apply in the present case because the claimant's father's depression was not due to alcohol consumption. If the depressive disorder were the relevant "injury", I could see the force in this submission. However, the relevant potential "injury" must be the immediate cause of death, which in this case was an epileptic fit. I agree with Mr Morton that the causative chain in which alcohol consumption was involved was: service in the Armed Forces, leading to depressive disorder, leading to alcohol consumption, leading to the fatal epileptic fit. The terms of the statutory definition make it plain that there is no "injury" in circumstances in which what would otherwise be an "injury" is caused by alcohol consumption caused by a mental condition assessed at less than 50%, caused by service.
14. Mr Baradon's alternative submission was that the tribunal's decision was based on a wholly different chain of causation from that suggested by Mr Morton. He submitted that the key finding of the tribunal was that "as a direct result of his accepted disablement [the claimant's father] was incapable of managing his affairs and indeed would thwart attempts by [his partner] to ensure he took his prescribed medication." The "accepted" condition was depressive illness and Mr Baradon is obviously right to point out that depression manifests itself in many ways and not just through drinking. In particular, it may lead to self-neglect. Thus, the tribunal's decision may be seen to be based on a chain of causation that may be expressed as: service in the Armed Forces, leading to depressive disorder, leading to failure to take medication, leading to the fatal epileptic fit. That chain does not involve the consumption of alcohol. I accept Mr Baradon's submission as to what the tribunal decided. However, that gives rise to a further difficulty.
15. I find it more than a little surprising that the draftsman of the legislation chose to deal with alcohol consumption in the context of the definition of "injury" in Schedule 4 to the 1983 Order rather than as a matter of causation in article 4. One consequence is that the legislation fails expressly to deal with the not uncommon situation of there being more than one cause of an injury. Where there is more than one cause, it may be that the injury would not have occurred in the absence of any single one of those causes. In the present case, there were arguably at least three causal chains. Apart from the two I have mentioned above, another possible chain is: the assault, leading to epilepsy, leading to the fatal epileptic fit. Plainly that is not relevant to the claimant's claim, because service in the Armed Forces is not part of the chain. (Moreover, the Secretary of State's medical advisor questions whether the fits were post-traumatic as she considers they were caused by alcohol and, I would add, the evidence that there was an assault at all is sketchy.) However, consideration of this third chain is useful inasmuch as it points to the material problem thrown up by the legislation. Suppose the claimant's father's epilepsy had developed as a result of a penetrating head wound on active service – a recognised cause of epilepsy (see paragraph 25 of the medical appendix (doc 61A)) – instead of an assault in the street, but, as was the case, the particular fit causing death was precipitated by alcohol. In such circumstances, it could properly be said that death had been caused both by the consumption of alcohol and by active service, especially if it would have been much less likely that the alcohol consumption would have caused the fit if the claimant's father had not already developed epilepsy. It would plainly be wrong to deny a person benefit on the ground that disablement or death was the result of the consumption of alcohol, if the consumption of alcohol would not have caused death but for an independent condition attributable to service.
16. When this was put to him, Mr Morton accepted that the legislator cannot have intended such a result and that item 27 of Part II of Schedule 4 had to be read so that, where a person suffered what would usually be regarded as an injury as a result both of alcohol consumption and as a result of another independent cause, it was not an "injury" to the extent that it was due to the consumption of alcohol (subject to the statutory exception) but could be an "injury" to the extent to which it was due to another cause.
17. On that approach, the tribunal's reasoning was not erroneous in point of law. As a matter of law, given that the burden of proof rested on the Secretary of State by virtue of article 4(2) of the 1983 Order, the tribunal was entitled to reason that the Secretary of State had not shown that the alcohol would have precipitated the fit had the claimant's father taken his medication and that the Secretary of State had not shown that the failure to take the medication was not a consequence of the depression that was attributable to service. In other words, it was entitled to find that the Secretary of State had not shown that the failure to take medication controlling the epilepsy did not "play a part" (see Freeman v Minister of Pensions and National Insurance [1966] 1 W.L.R. 456) in causing the particular epileptic fit that led to death, even though the consumption of alcohol was plainly another cause.
18. However, I accept Mr Morton's submission that the tribunal did err in not giving the Secretary of State any opportunity to answer that line of reasoning, which was an entirely new way of looking at the case. There was no medical evidence before the tribunal suggesting that a failure to take medication might have contributed to the claimant's father's death. The tribunal, which included among its members a medical practitioner, was entitled to rely on its own expertise but, if it was intending to do so, it was obliged to give the Secretary of State an opportunity of dealing with the new point that the tribunal had raised (see Evans v Secretary of State for Social Security (reported as R(I) 5/94) and Butterfield v Secretary of State for Defence [2002] EWHC (Admin)). The Secretary of State is just as entitled as a claimant to rely on the rules of natural justice, although he may have more difficulty than an unrepresented claimant in showing that he could not reasonably have been expected to anticipate a new point. In this case, I am satisfied that fairness required the Secretary of State to be given the opportunity to respond to the tribunal's approach and, if necessary, seek an adjournment for medical advice. On that ground, I set aside the tribunal's decision.
19. At the conclusion of the hearing, I indicated that, if I found the tribunal to have erred in law, I would be minded to refer the case to another tribunal that would have a medical practitioner among its members. However, upon reflection and bearing in mind the burden of proof and Mr Baradon's submission that the tribunal's approach appeared to be a perfectly reasonable one to which the medically-qualified member of the tribunal must have contributed, I decided to invite further submissions myself. Mr Morton made a further submission, attaching a report by Dr Anne Braidwood CBE, BSc (Hons), MB ChB (Hons), MRCP, MRCGP in which she considers the coroner's report, the claimant's father's evidence to the medical board and the board's findings. He also suggested that the case be referred to another tribunal. Mr Baradon has not replied to this further submission but, in the light of his submissions at the hearing, I am satisfied that I can properly decide this case myself.
20. Dr Braidwood concludes –

"… both on the general and case specific facts I find death due to a fit precipitated by alcohol withdrawal and reducing blood alcohol levels. The causal sequence of events listed above [i.e., service in the Armed Forces leading to depressive disorder leading to failure to take medication leading to the fatal epileptic fit] represent no more than an unsubstantiated hypothesis. Beyond reasonable doubt and based on the evidence I do not consider that service in the armed forces leading to depressive disorder leading to failure to take medication led to the fatal epileptic fit."

I do not for a moment doubt that death was due to a fit precipitated by alcohol withdrawal and reducing blood alcohol levels. However, it does not follow that death was not also due to a failure to take medication. I am further prepared to accept that the hypothesis that the depressive disorder, which it is accepted was due to service in the Armed Forces, led to the failure to take medication, which in turn led to the fatal epileptic fit is unsubstantiated in the sense that that chain of causation has not been proved on a balance of probabilities. However, an unsubstantiated hypothesis may nonetheless be reasonable and, if it is, it is sufficient to create a reasonable doubt, the benefit of which must be given to the claimant by virtue of article 4(2) of the 1983 Order (now article 40(3) of the 2006 Order).

21. It is not in issue in the present case that the claimant's father did suffer from a depressive disorder and that that was due to service in the Armed Forces. It has been proved that immediately before his death he did not take anti-epileptic medication that had been prescribed for him. That is clear both from the tribunal's acceptance of his partner's evidence and from the post-mortem report that did not detect any prescription, or other, drugs except diphenhydramine, which I understand to be an antihistamine. It is also accepted that he died as a result of an epileptic fit. What is in issue is whether there were causal connections between the depressive disorder and the failure to take the medication and between the failure to take the medication and the fit.
22. The Secretary of State has not satisfied me beyond reasonable doubt that there was no causal connection at either stage. As I have already indicated, I accept that a failure to take medication is quite likely to be a consequence of being depressed. It also seems to me to be obvious that a failure to take anti-epileptic medication must ordinarily increase the risk of having a fit and where, as in this case, the epilepsy was previously reasonably well controlled through medication (see the medical board's decision), it can sensibly be said that a failure to take medication can be a cause of a fit. The question to which Dr Braidwood effectively draws attention is whether the excessive consumption of alcohol undermines that approach in this particular case. She says –

"There is very little research about the efficacy of anti-epileptic medication in those who are heavy drinkers. These drugs are metabolised in the liver and there is at least the possibility that the induction of relevant enzymes which accompanies habitual heavy alcohol use will make epileptiform drugs less effective."

That clearly does not mean that it is proved beyond reasonable doubt that anti-epileptic medication ceases to be effective in heavy drinkers, which, if it were so, would have the consequence that a failure to take medication could not be said to cause a fit. Dr Braidwood places more emphasis on the amount the claimant's father had drunk on the night he had the fatal fit. There is no evidence that that amount of alcohol would have any effect on the effectiveness of anti-epileptic medication but Dr Braidwood's point is that it was enough to cause a fit by itself. I accept that it could well have done so but there is no evidence that it would inevitably have had that effect even if the claimant's father had taken his medication. The pathologist's opinion was that it was "likely that alcohol contributed to death" (my emphasis). I do not consider that there can be excluded the possibility that anti-epileptic medication might have made a difference to the outcome.

23. In those circumstances, while Dr Braidwood may well, on a balance of probabilities, be right in her view that the claimant's father's death is not attributable to his depressive disorder, I respectfully do not share her view that there is no reasonable doubt on the issue. In my judgment, there is a doubt that is not merely fanciful. The legislation requires the benefit of that doubt to be given to the claimant. Accordingly, while I must set aside the tribunal's decision because the tribunal did not give the Secretary of State the opportunity to comment on its hypothesis, I substitute a decision to the same effect as the decision I have set aside because, despite the further evidence and comment provided to me by the Secretary of State, I have reached the same conclusion as the tribunal.

MARK ROWLAND

6 February 2009