CAF/3569/2008

DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

Decision

1. This appeal by the Secretary of State succeeds. In accordance with the provisions of section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007 I set aside the decision of the Pensions Appeal Tribunal sitting at Truro on 17^th July 2008 made under reference SD/00088/2008. I restore the decision of the Secretary of State that the claimant’s diabetes mellitus is attributable to service from 1^st April 1995.

2. In this decision, except where the context requires otherwise, I refer to a non-tribunal decision maker as “the Secretary of State” irrespective of the name or designation of the person or body actually making the official decision on entitlement.

Legal Provisions

3. So far as is relevant, section 1 of the Pensions Appeal Tribunals Act 1943 provides as follows:

1(1) Where any claim in respect of the disablement of any person … is rejected by the Minister on the ground that the injury on which the claim is based –

(a) is not attributable to any service …

The Minister shall notify the claimant of his decision, specifying that it is made on that ground, and thereupon an appeal shall lie to a Pensions Appeal Tribunal … on the issue whether the claim was rightly rejected on that ground.

4. Section 5B of the Act was inserted with effect from 1^st January 2001 (by SI 2000/2994) and provides as follows:

5B In deciding any appeal, a Pensions Appeal Tribunal –

(a) need not consider any issue that is not raised by the appellant or the Minister in relation to the appeal; and

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

5. As from 29^th August 1970 section 6(2A) of the 1943 Act (inserted by section 23 of the Chronically Sick and Disabled Persons Act 1970) gave the Secretary of State power to set aside a tribunal decision.

6. Sections 6(2C) and 6(2D) of the 1943 Act were inserted by section 43(1) of the Social Security and Housing Benefits Act 1982 with effect from 20^th August 1982. Section 6(2C) provided that where a direction for a rehearing had been given, the Secretary of State could review the original decision within two months of the date of that direction.

7. Section 6(2D) provided that:

6(2D) If, on any such review, the Minister is of the opinion that there are grounds for revising the original decision he shall –

(a) notify the [claimant] of his opinion and of the revision which he proposes to make; and

(b) if the [claimant] withdraws his appeal against the original decision, revise it accordingly.

8. Rule 9 of the Pensions Appeal Tribunals (England and Wales) Rules 1980:

9(1) An appellant may at any time before the hearing give notice to the Pensions Appeal Office that he desires to withdraw his appeal, and thereupon the appeal shall be struck out.

9(2) Where, after a notice of appeal has been given, the Secretary of State decides the issue arising on the appeal in favour of the [claimant] the Secretary of State shall give notice of is decision to the Pensions Appeal Office and to the [claimant], and the appeal shall be struck out.

9(3) In an assessment appeal the making of a new increased assessment for the period under appeal (whether covering additional disabilities or not) shall be deemed to be a decision by the Secretary of State in favour of the appellant and, on notice given in accordance with paragraph (2), the appeal shall be struck out, without prejudice to any appeal against that decision.

The Relevant Review Provisions

9. At the relevant time these provisions were in The Naval, Military and Air Forces Etc (Disablement and Death) Service Pensions Order 1983 (“the Order”). I note that from 10^th April 2006 this was replaced by The Naval, Military and Air Forces Etc (Disablement and Death) Service Pensions Order 2006 but that the 2006 Order does not change the law that applies in the present case but consolidates it and rearranges the sequence of provisions. However, references below are to the 1983 Order.

10. The general rule in article 67(1) of the Order is that any decision accepting or rejecting a claim for pension, or any assessment of the degree of disablement, or any final decision that there is no disablement or that it has come to an end may be reviewed by the Secretary of State “at any time on any ground”.

11. The commencing date of awards is governed by schedule 3 to the Order. So far as is relevant paragraph 1(1) of the schedule provides that, subject to other provisions in the schedule, an award or an adjustment of an award shall have effect from the date specified in the award, being not earlier than the date specified in paragraph 1(2). Paragraph 1(2) specifies whichever date is the latest time of (a) the date following the date of termination of service or death, or (b) the date of the claim or (c) the date of the last application for review. There are provisions for backdating where the application is made within 3 months of notification of a previous decision. These do not apply in the present case.

12. Paragraph 1(6A) creates an exception to the rule in paragraph 1(1) and, so far as is relevant, provides that:

1(6A) Where an award is reviewed as the result of a decision (“the original decision”) which arose from an official error, the reviewed decision shall take effect from the date of the original decision and for this purpose “official error” means an error by the Secretary of State or any officer of his … to which no other person materially contributed, including reliance on erroneous medical advice …

13. Literally, this provision does not apply where no award has been made, but as I explained in paragraph 26 of CAF/0602/2007, it cannot really mean that.

14. In one sense any medical advice is always provisional because the state of medical (or any scientific) knowledge and understanding is always changing and developing but for the purposes of paragraph 1(6A) medical advice is not erroneous if it is based on “medical knowledge at the time when the original decision was made” (Paragraph 18 of CAF 0857/2006 (reported as R(AF) 5/07) decided by Upper Tribunal Judge Bano, now the President of the relevant chamber of the First-tier tribunal but then sitting as a Pensions Appeal Commissioner).

15. Paragraph 6 of the schedule concerns the situation where a claim had been rejected but there has been a change in medical opinion:

6(1) Where, upon a review of a decision rejecting a claim for pension, the Secretary of State makes an award on the basis that medical opinion has developed since the date of the decision which is the subject of the review, no payment shall be made in respect of any period preceding whichever is the later of –

(a) the date on which the Secretary of State considers that medical opinion had developed to the extent that an award in the claimant’s case was justified; and

(b) the date three years before the date of application for review or, where the review is instigated by the Secretary of State, the date three years before the date of the Secretary of State’s review decision..

16. As I explained in paragraph 20 of CAF/0602/2007 the relationship between paragraph 1 and paragraph 6(1) is not obvious from the wording. Paragraph 6(1) makes no positive provision for a commencing date earlier than that provided by paragraph 1 – it is a provision limiting the power of the Secretary of State. However, these provisions only makes sense, especially in the context of the historical development of the scheme (see eg paragraph 18 of R (AF) 5/07), if paragraph 6(1) is read as an exception to paragraph 1 and as implicitly authorising or recognising the authority of the Secretary of State to backdate the payment. This is how the Secretary of State understands and operates the provision and it would not be to the claimant’s advantage to take any other approach.

17. Reference has also been made in the file to paragraph 10 of the schedule. This contains a further exception to the general rule in paragraph 1(1) where the claimant would have applied for review on an earlier date but for an act or omission of the Secretary of State “which wrongly caused him to delay the claim or application and that act or omission was the dominant cause of the delay”. However, this is itself subject to an exception in that it does not apply “in a case to which paragraph 6,7 or 9 applies”. Thus, if paragraph 6 does apply (because the original claim was rejected but medical opinion has developed) then the claimant cannot rely on paragraph 10.

Background and Procedure

18. The claimant was born on 22^nd July 1941. From 6^th May 1957 to 8^th August 1963 he served in the Royal Navy. On 29^th March 1963 he was admitted to a Royal Navy hospital with various symptoms and a diagnosis was made of insulin dependent diabetes mellitus of classical onset. On 12^th June 1963 a Medical Board found him to be permanently unfit for further duty. On 8^th July 1963 his claim for disablement pension under the relevant Service Pensions Order was rejected on the grounds that his condition was hereditary (as the claimant puts it) or constitutional (more likely) and not attributable to service. The claimant appealed to the Pensions Appeal Tribunal which, on 20^th May 1964, upheld that decision.

19. I cite the following from paragraph 7 of my decision in CAF/0602/2007 (given as a Pensions Appeal Commissioner):

“Meanwhile, in May 1985 the Department of Health and Social Security accepted that there had been a change in the consensus of medical opinion regarding the aetiology of diabetes mellitus and the following year this was brought to the attention of a number of interested organisations and relevant publications … although not specifically or personally to the attention of [individual claimants]. The new view was that insulin dependent diabetes must have a precipitating factor, which could be a viral illness. Thenceforth, when the condition arose soon after service, the Department’s doctors would be considering the possibility of it being due to a viral illness acquired during service. Various dates have been given as to the date from which this change of opinion “became effective”.”

20. In the present case the date given for the effect of the new opinion on war pensions is 1^st December 1985 (see page 16 of the file).

21. It seems that on 1^st April 1998 the claimant asked for the war pensions decision to be reconsidered, ostensibly on grounds of deterioration, in view of the change in medical opinion (page 16). There was no power to review the decision made by the tribunal on 20^th May 1964 and the matter proceeded by way of a joint application by the claimant and the Secretary of State which resulted on 6^th October 1998 in the President of the Pensions Appeal Tribunal setting aside the decision of 20^th May 1964 (page 142). This enabled the Secretary of State to consider afresh the original claim, which in some of the paperwork (see page 1) is treated as having been made on 1^st April 1995 (three years before the date of the claimant’s letter of 1^st April 1998). I accept the claimant’s point that the Secretary of State had the discretion but not an obligation to reconsider the matter at this stage.

22. On 23^rd March 1999 the War Pensions Agency sent the claimant a Certificate of Entitlement/Assessment (page 144) stating that diabetes mellitus was accepted as being attributable to service and there was an interim assessment of 40% disablement from 1^st April 1995 taking account of all disablement due to diabetes from the date. This was accompanied by a form (pages 145 to 147) asking the claimant whether he wanted to carry on with his appeal. On 31^st March 1999 the claimant ticked a box on the form stating “I do not want to carry on with my appeal” and said that this was the appeal made on “1^st April 1998 (a little unsure about the date)”. Under his signature he added the words “without prejudice”. I discuss below whether this amounted to a withdrawal of the relevant appeal and the significance of this.

23. On 7^th April 1999 the Secretary of State sent a section 9(2) notice to the PAT (pages 148 to 151) although I observe that it was not fully completed. The PAT office returned it on 27^th May 1999 with a letter asking whether or not a statement of case had been sent to the PAT (page 152). There seems to have been no reply to this.

24. Also on 7^th April 1999 the War Pensions Agency informed the claimant that the Secretary of State had awarded him a pension in respect of diabetes mellitus, taking account of retinopathy and peripheral neuropathy and that this was accepted as being attributable to service. There was an interim assessment of 40% disablement. A payable order for £8934.13 was sent to the claimant in respect of the period 1^st April 1995 to 13^th April 1999 (pages 7 to 14). The claimant appealed against the assessment and on 16^th July 1999 the assessment was increased by the Secretary of State to 50% with effect from 1^st April 1995. The appeal in relation to the assessment then lapsed.

25. On 16^th November 2006 the claimant wrote to the Veterans Agency requesting further compensation. The reply of 6^th December 2006 (pages 16 to 16A) referred to a “Further condition application received on 4^th September 2006” (which I have not seen) and stated that there would be a “review of your accepted conditions”. This seems to have resulted in a decision on 3^rd January 2007 (see page 3) accepting Reynauds Disease as attributable to service, in addition to diabetes mellitus, and atherosclerosis as aggravated by service, with an overall long term assessment of 70% with effect from 4^th September 2006. The assessment took account of the effects of retinopathy, peripheral neuropathy, impotence, ischaemic heart disease, angina and peripheral vascular disease.

26. On 28^th January 2007 (in a form received by the Veterans Agency on 30^th January) the claimant appealed against the decision which had awarded a pension with effect from 1^st April 1995, on the basis that it should have been further backdated because no effort had been made to inform him medical opinion had changed in relation to the causes of diabetes mellitus.

27. The Secretary of State (page 23) treated this as an appeal against “the contents” of the letter of 6^th December 2006 (pages 16 to 16A). On the face of it this is difficult to understand because an appeal lies against a decision, and the letter of 6^th December 2006 does not contain a decision (but see below). The Secretary of State also took the view that the tribunal had no jurisdiction to consider this appeal, but the matter was referred to the President of the Pensions Appeal Tribunal.

28. On 5^th March 2007 the President directed that the appeal of 28^th/30^th January 2007 should be treated as an application to review the decision of 7^th April 1999 not to backdate the award beyond 1^st April 1995. The Service Personnel & Veterans Agency (“SPVA”) asked for clarification of the power under which this Direction had been given. The President pointed out that although there was no statutory right of appeal against the commencement date of an award for a decision notified before 9^th April 2001, the Secretary of State had a duty to deal fairly with claims and applications. The Secretary of State had a power to review decisions and that was what the claimant was effectively asking for in his letter of 16^th November 2006. Should the Secretary of State “decide to maintain the view that he is presently taking” the President would list the appeal for an oral hearing. The Secretary of State did not change his position and the President listed the matter for a hearing.

29. The tribunal (not including the President) considered the matter on 5^th February 2008 and decided that it had jurisdiction “to entertain this appeal” although it did not specify the precise decision against which it thought that appeal was being brought (pages 25 and 157 to 158). It adjourned the substantive hearing to allow the parties to prepare their cases.

30. The Secretary of State now accepts for the purposes of the present case that, in order to give the claimant a right of appeal, the letter of 6^th December 2007 embodied a refusal to vary the commencement date and this was a specified decision carrying a right to appeal. I have no dispute with this approach per se, and it is intended to be helpful to the claimant because in 1999 there was no right of appeal against the commencement date, such a right not being introduced until 9^th April 2001 in respect of commencement date decisions made from that date. The commencement date had been calculated by reference to the provisions of paragraph 3 of schedule 6 to the 1983 Order.

31. The tribunal (chaired by the President) considered the matter on 17^th July 2008. It allowed the appeal and decided that the correct commencement date was the date of medical discharge, 8^th August 1963. On 20^th October 2008 the President gave the Secretary of State permission to appeal to the Pensions Appeal Commissioner against that decision of the tribunal. On 3^rd November 2008 the matter was transferred to the Upper Tribunal. On 19^th November 2008 the appeal was received by the Upper Tribunal. I am aware of the length of time that it has taken to make this decision, but it is fair to point out that final written submissions were not received until early November 2009.

The Tribunal Decision of 17^th July 2008

32. The tribunal commented that the relevant SPVA file contained no information as to the relevant date of the change in medical opinion, and that the statement that the change “took effect” on 1^st December 1985 was ambiguous.

33. The tribunal took the view that the decision notified to the claimant on 7^th April 1999 was a review decision under the provisions of paragraph 6 of schedule 3 to the Service Pensions Order. Such a review did not, at that time, carry a right of appeal to the tribunal (which was only introduced with effect from April 2001) and could not result in an award backdated more than three years prior to the date of the application for review. Thus it was not capable of giving the claimant all that was at stake in the original decision and “could not have the effect of superseding the original appeal against rejection of the claim” (paragraph 8 of the tribunal’s statement of reasons). Had the original appeal been reheard by a tribunal, instead of the matter being treated as a review of that kind, there would have been a right of appeal to the High Court and the paragraph 6 limit on backdating would not have applied.

34. The tribunal stated that as the tribunal decision of 20^th May 1964 had been set aside, there was an outstanding appeal against the original 1963 decision. This appeal had not been withdrawn by the claimant and had not been superseded.

35. Further, according to the tribunal, the Secretary of State failed to consider paragraph 10 of schedule 3. The claimant’s case was that his delay in applying for review was caused by the omissions of the Secretary of State in failing to bring to his attention that a change of medical opinion had been accepted. (As I have explained above, this argument cannot succeed if paragraph 6 applies). The Secretary of State argued that he did this by informing various organisations of the change and placing various advertisements. The tribunal was of the opinion that the steps taken were inadequate, and that the placing of the advertisements was “strange” (paragraph 14). What was done fell far short of what could be regarded as taking reasonable steps. The tribunal concluded that it was these omissions that led the claimant to delay raising the question again until 1998. These are findings of fact that were open to the tribunal and I would not interfere with them. The tribunal decided that for the purposes of paragraph 10 the claimant should be treated as having raised the issue on the date on which the change of medical opinion was said to have taken effect, 1^st December 1985. Had the tribunal not decided that the correct way to proceed was as an appeal against the 1963 decision, this would have been its “fall-back” position.

36. According to the tribunal, because the Secretary of State had wrongly proceeded by considering a review under the provisions of paragraph 6, the appeal against the 1963 decision (which had been outstanding since the setting aside decision of 6^th October 1998) had not been heard, and it was appropriate that this be done by the tribunal.

37. In relation to the outstanding appeal, the tribunal found that (in accordance with article 4 of the Service Pensions Order) the burden of proof was against the Secretary of State to establish facts relied on beyond reasonable doubt, that in the present case the change of medical opinion was in fact declaratory of what should be taken as the true medical understanding at all times, and that the commencing date should therefore be the date of medical discharge.

The Submissions

38. There is much discussion in the submissions of the parties about what would or might have happened if certain courses of action had or had not been taken, but I do not find much of that discussion to be particularly helpful and I do not propose to comment except in so far as is necessary to explain my decision.

39. The Secretary of State argues that in light of medical knowledge at the time diabetes mellitus was understood to be organic in origin and not capable of being attributed to service. Following the decision to set aside the tribunal decision of 20^th May 1964, which was made under the provisions of section 6(2A) of the Pensions Appeal Tribunals Act 1943, there was to be a new hearing of the 1964 entitlement appeal. However, the Secretary of State treated the form signed by the claimant on 31^st March 1999 (see above) as a withdrawal of the appeal and, in accordance with sections 6(2)(A), 6(2)(C) and 6(2D) of the 1943 Act revised the original decision and made the award notified to the claimant on 7^th April 1999.

40. As stated above, rule 9(2) of the Pensions Appeal Tribunals (England and Wales) Rules 1980 provides that if, the Secretary of State decides an issue arising on an appeal in favour of the claimant, the appeal shall be struck out. I noted above that the section 9(2) notice sent by the Secretary of State to the PAT on 7^th April 1999 was returned by the PAT office on 27^th May 1999 and no further action seems to have been taken on this.

41. I raised the question of whether the appeal is automatically struck out by operation of law or whether the tribunal is under a duty to strike out. The Secretary of State refers to the decision of the High Court in R (Secretary of State for Defence v PAT and Corrie and others [2007] EWHC 1451 (Admin) where the Court held that it is irrelevant that rule 9 does not require independent judicial consideration of whether to strike out (presumably because rule 9(3) in part protects the claimant’s position), and argues that the appeal is automatically struck out and no further order is required. The claimant agrees with this analysis. I note that this does not seem to deal with the questions of whether the Secretary of State has in fact decided the issue arising on the appeal in favour of the appellant, or whether a proper rule 9(2) notice has been sent. These questions might have to be answered at a subsequent stage.

42. The Secretary of State then suggests that rule 9(1) and (2) provides the mechanism for the withdrawal referred to in section 6(2D)(b). The claimant points out that section 6(2D) deals with any grounds for revising the original decision and with any revision. Rule 9(2) refers to “the issue arising on the appeal” and this must mean that rule 9(2) only operates when all the issues arising are decided in favour of the claimant, that is to say when the revised decision gives the claimant all that he is asking for. (In the present case it is also argued that there was, in any event, no effective withdrawal.)

43. It seems to me that on the basis both of the wording of rule 9(2) and the overall structure of the scheme, the claimant’s analysis is correct on this point. Otherwise the Secretary of State could make a very minor revision to the decision, which could deprive the claimant of rights of appeal.

44. The Secretary of State suggests that in the present case matters in fact proceeded as though the appeal had been withdrawn and struck out, there being three manifestations of this: the Secretary of State paid the pension to the claimant; the claimant proceeded to appeal against the assessment but did not pursue the entitlement issue; the tribunal did not list the entitlement appeal for hearing.

45. The claimant argues that had the Secretary of State not chosen to exercise the above powers, the matter would have proceeded to a tribunal hearing and the tribunal would have awarded the claimant a pension on the basis of his diabetes, and this would have been backdated to the date of his medical discharge and automatic claim, 8^th August 1963. By deciding to exercise the power, which was limited by the provisions of paragraph 6 of schedule 3, the Secretary of State denied the claimant of access to the fully backdated award that would otherwise have been available. However, I agree with the Secretary of State that the tribunal had no power to “review” the decision of the Secretary of State to exercise this power. It was a power that the Secretary of State undoubtedly had and there was no provision for an appeal to the tribunal against its exercise.

What Was the Appeal Against?

46. The essence of the Secretary of State’s case is that the tribunal wrongly proceeded on the basis that it was hearing an appeal against the 1963 entitlement decision which was outstanding following the decision of 6^th October 1998 setting aside the earlier tribunal decision of 20^th May 1964. In fact, argues the Secretary of State, the tribunal was not hearing an entitlement appeal under section 1 of the Act but should have proceeded on the basis that it was hearing an appeal against the refusal to review the decision to backdate the award beyond 1^st April 1995. This would have been an appeal against a specified decision under section 5A of the Act. Section 5B of the Act did not confer any extra jurisdiction on the tribunal.

47. In support of this argument the Secretary of State makes the following points. First, that the review of the 1963 entitlement decision was carried out pursuant to section 6(2C), which clearly empowered him to do this, and that his decision determined the issue on the entitlement appeal in favour of the claimant. Second, that the claimant had in fact withdrawn his appeal against the 1963 decision notwithstanding his confusion about the date and that as an appeal cannot be withdrawn “without prejudice”, the latter phrase is meaningless in the context.

Had The Appeal Been Withdrawn?

48. The claimant argues that the form signed on 31^st March 1999 was equivocal. It made no express reference to the 1999 decision and by marking it “without prejudice” the claimant was indicating that he did not accept the 1999 decision. This was not a genuine withdrawal and in any event the appeal had not been struck out.

49. It seems to me that after the tribunal decision of 20^th May 1964 had been set aside on 6^th October 1998 the claimant had in fact withdrawn what was now an outstanding appeal by his actions on 31^st March 1999 in ticking the box stating “I do not want to carry on with my appeal”. His uncertainty about the date was not really relevant as it is clear that he completed the form in response to Certificate that had been sent to him on 23^rd March 1999. His addition of the words “without prejudice” cannot with nothing further be given the meaning now suggested on behalf. They could just as easily (and probably more likely) have been referring to his entitlement to payment pursuant to the Certificate sent to him on 23^rd March 1999.

50. Even if this appeal had not been withdrawn, a rehearing could not have changed the commencement date of the award, as the tribunal did not at that stage have the jurisdiction to do this.

Had The Appeal Been Struck Out?

51. It seems to me that on the wording of rule 9(1) the appeal is struck out by operation of law once the office of the Pensions Appeal Tribunal receives notice that the claimant wishes to withdraw his appeal. No judicial or administrative act is necessary. As I understand it, the parties are agreed that this is the case.

52. I am not so sure about the operation of rule 9(2), which raises questions about what the issue arising in the appeal is, whether the Secretary of State has in fact decided it in favour of the claimant, and whether notice has been given in a proper fashion or at all. I do not need to decide these matters for the purposes of the present case, as I am satisfied that the appeal was withdrawn in accordance with rule 9(1).

The Commencement Date

53. The Secretary of State argues that even if the tribunal correctly treated the appeal as being against the 1963 decision, it had no jurisdiction to vary the commencement date, because the 1964 tribunal decision was on an entitlement appeal and a rehearing of this appeal could not consider the commencement date. The commencement date was governed by paragraph 6 of schedule 3 to the Order and paragraph 10 cannot apply where paragraph 6 applies. Further, the Secretary of State argues that he had done all that was reasonably required for the purposes of paragraph 10. (I observe that in a relevant case this would be a question of fact for the tribunal to determine.)

54. The claimant argues in effect that it is inherent in the determination of an entitlement appeal that a commencement date will be specified. Further, the Secretary of State’s terms of reference for the hearing on 17^th July 2008 expressly asked the tribunal to determine the commencement date. Also, the limit imposed by paragraph 6 of schedule 3 is placed on review by the Secretary of State whereas the 2008 hearing was a de novo appeal against the 1963 decision.

55 It is trite law that the parties cannot confer by agreement a jurisdiction on a statutory body that it has not been given by statute or regulations. Neither, do I accept that within the structure of the war pensions scheme it is inherent in the determination of an entitlement appeal that a commencement date will be specified (desirable though such a rule might have been). Otherwise it would not have been necessary to introduce a right of appeal against commencement dates from 9^th April 2001.

What State of Knowledge Can Be Taken Into Account?

56. The tribunal took the view that the change in medical opinion about the aetiology of diabetes should be taken as the state of knowledge in respect of what it regarded as the rehearing of the 1964 tribunal. The Secretary of State argues that a change in medical opinion cannot in its very nature be declaratory of the previous state of medical opinion. He also relies on section 5B of the 1943 Act (see above).

57. I disagree with this approach of the Secretary of State in so far as it is intended to apply if the tribunal was rehearing the 1964 appeal. First, section 5B does not apply because it was not introduced until 1^st January 2001 and does not apply to appeals lodged before that date so could not impinge on the tribunal’s decision. Second, it is a question of fact whether the claimant’s diabetes was attributable to service. If it is, which is agreed, that is a point of fact which was also true in 1963. Third, the aetiology is indeed a circumstance obtaining at the time when the decision under appeal. Medical opinion has changed but in this context that is later evidence (and evidence is not a circumstance) of what was the case at the relevant time. This is consistent with approach taken by Upper Tribunal Judge Jacobs (sitting as a Social Security Commissioner) in R(DLA) 2/01 and R(DLA) 3/01 in respect of similar wording in social security legislation, which has been approved and applied on numerous occasions by Commissioners and by the Upper Tribunal.

Conclusions

58. The tribunal decision of 20^th May 1964 was set aside on 6^th October 1998. This left an unresolved appeal on the issue of attribution/entitlement. On 23^rd March 1999 and 7^th April 1999 the Secretary of State decided that issue in favour of the claimant. On 31^st March 1999 the claimant withdrew the appeal. That resolved the matter as far as the appeal that was originally decided on 20^th May 1964.

59. Towards the end of 2006 there was an exchange of correspondence between the parties which has now been treated (properly so in my opinion) as an application to backdate the award beyond 1^st April 1995, a refusal to do so, and a valid appeal to the tribunal against that refusal. This was the appeal that was properly before the tribunal of 17^th July 2008.

60. That tribunal should have considered and applied the provisions of schedule 3 to the Naval, Military and Air Forces Etc (Disablement and Death) Service Pensions Order 1983, as I have explained above. Paragraph 1(6A) might have authorised backdating back to July 1963 when the original claim was rejected if this were not a case of a change in medical opinion, but it is such a case. Therefore, paragraph 6(1) limits backdating to the date three years before the date of application for review. The Secretary of State took the date of application for review as 1^st April 1998 and backdated the award to 1^st April 1995. I can see nothing in the papers that demonstrates that anything happened on any earlier date than 1^st April 1995 that could be construed as amounting to an application for review. This is the decision that the tribunal should have made.

61. I appreciate that the claimant will consider that he has been unfairly treated because medical opinion was not developed at the time of his original discharge and claim. However, there was a deliberate policy decision, endorsed by parliament, to limit backdating in all such cases to the extent that I have indicated. The Pensions Appeal Tribunal tried to find a way round this, but I am afraid that in legal terms it just does not work.

62. For the above reasons this appeal by the Secretary of State succeeds.

H. Levenson

Judge of the Upper Tribunal

22^nd January 2010