Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No. CAF/720/2009

ADMINISTRATIVE APPEALS CHAMBER

1. This is an appeal by the Claimant against two decisions of a First-tier Tribunal sitting in London on 26 November 2008. For the reasons set out below those decisions were in my judgment wrong in law. I set aside the decisions and remit the matters for redetermination by an entirely differently constituted First-tier Tribunal in accordance with the directions referred to below. However, the Claimant has not won on the main point of his appeals, which relates to passive smoking.

2. The Claimant is a man now aged 74 who served in the RAF between 1952 and 1990. He is in receipt of a war disablement pension, based on a disablement totalling 60%, in respect of a number of conditions not directly relevant to this appeal.

3. On 27 September 2007 he made a claim in respect of osteoarthritis in his left knee and chronic obstructive pulmonary disease (COPD). He claimed that the COPD was due to “passive smoking”, and that he had been exposed to a great deal of that during his service. He also made a claim for a mobility supplement, contending that his lack of mobility was largely the result of the COPD. (In his later written submission to the Tribunal he stated (p.79) that “were it not for COPD I could still get around without too much aggravation).”

4. On 31 January 2008 a decision was made by the Secretary of State accepting that the osteoarthritis in his left knee was due to service (and increasing the assessment of disablement from 50% to 60% as a result), but not accepting that the COPD was caused or made worse by service.

5. On or about 8 February 2008 a decision was made refusing the claim for mobility supplement on the ground that the conditions which had been accepted as due to service did not cause the Claimant difficulty in walking to the required extent.

6. The Claimant appealed against both the COPD and the mobility supplement decision. His grounds of appeal contended that the COPD was caused not only by passive smoking but also by exposure to trichloroethylene, to which he claimed to have been exposed when servicing ejection seats between 1964 and 1967.

7. The Secretary of State’s submission to the First-tier Tribunal in relation to the COPD appeal stated that it was accepted that during his service the Claimant would have spent time in squadron crew rooms where other people would have been smoking. However, the submission went on to state that the rejection of the claim in respect of COPD was on the grounds (a) that item 32 of part 2 of Schedule 6 to the Naval, Military and Air Forces etc (Disablement and Death) Service Pensions Order 2006 was to the effect that “injury” in the crucial article 41(1) of the Order did not include an injury due to passive smoking and (b) that the evidence did not raise a reasonable doubt as to whether the COPD was caused by service because “there is at present no clear evidence that exposure to passive smoking in adulthood can cause COPD.”

8. The Tribunal dismissed both appeals. It produced a combined Statement of Reasons dealing with both appeals. As regards the COPD appeal, it accepted the Secretary of State’s contention that under the 2006 Order “injury” expressly did not include the effects of passive smoking. As regards the question whether the passive smoking in a service working environment had caused the Claimant’s COPD, the Tribunal said that “the evidence in support of that assertion was never tested”, owing to the Tribunal’s acceptance of the Secretary of State’s submission in relation to the meaning of “injury”. However, the Tribunal did not in its reasons go on to consider whether the COPD was due to exposure to trichloroethylene. As regards the mobility supplement appeal, by implication the Tribunal’s reasoning was that that appeal also had to fail because the COPD was not an “injury” for the purposes of the 2006 Order.

9. The Claimant requested permission to appeal to the Upper Tribunal. His letter of appeal mentioned only the reference number of the COPD appeal, but said that he wanted to appeal against “the decision to disallow my appeals.” The chairman, in a decision referring only to the reference number of the COPD appeal, gave permission to appeal, commenting:

“This was a case that many would feel resulted in an unjust decision. It is still incumbent upon the Appellant to link the passive smoking to his COPD but on the present authorities, such would still prevent him receiving justice. Leave is given to enable the Upper Tribunal Judge to consider this matter.”

10. The Claimant’s Notice of Appeal to the Upper Tribunal, on Form UT6, again mentioned only the reference number of the COPD appeal, but the detailed grounds of appeal appeared to proceed on the footing that he was also appealing in relation to the mobility supplement decision.

11. On 23 April 2009 the Upper Tribunal wrote to the Claimant saying that the First-tier Tribunal’s grant of permission to appeal related solely to the COPD appeal, and that if he wished to appeal against the mobility supplement decision he would need first to apply for permission from the First-tier Tribunal in relation to that decision. The Claimant did not reply to that letter or take any action to attempt to obtain permission to appeal from the First-tier Tribunal in respect of the mobility supplement decision.

12. Article 41 of the 2006 Order provides, so far as directly material, as follows:

“(1) ………. Where, after the expiration of 7 years beginning with the termination of the service of a member of the armed forces, a claim is made in respect of a disablement of that member, …….. such disablement ……. shall be accepted as due to service for the purpose of this Order provided it is certified that –

(a) the disablement is due to an injury which –

(i) is attributable to service before 6 April 2005, or

(ii) ………………………………………”

(3) A disablement …….. shall be certified in accordance with paragraph (1) if it is shown that the conditions set out in this article and applicable thereto are fulfilled

(5) Where, upon reliable evidence, a reasonable doubt exists whether the conditions set out in paragraph (1) are fulfilled, the benefit of that reasonable doubt shall be given to the claimant.”

13. Item 32 of Part II of Schedule 6 to the 2006 Order provides that “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.”

14. In R (Setter) v Secretary of State for Defence [2005] EWHC 3012 (Admin) at para. 48 Davis J, having set out the identical wording of the then applicable provision, said as follows:

“In my view the tribunal was clearly right to conclude that that, on its wording, operated to exclude a claim by reference to passive smoking. The definition is wide and, in particular, extends not simply to the use of tobacco but to the effects of tobacco. That clearly is deliberate. It is to be contrasted with a reference to the consumption of alcohol. It is also to be contrasted, so far as the exception is concerned, with deliberate use of the words “use of tobacco” without referring to the effects of tobacco. It may be at the time this definition was incorporated into the statutory provisions the risks, or possible risks, relating to passive smoking had not been clearly identified. But it seems to me that the language used here plainly operates to exclude such a claim.”

15. The Claimant submits that that view is wrong. I would follow that decision, which was that of a High Court Judge sitting in the Administrative Court, unless I was satisfied that it is plainly wrong. Far from being so satisfied, I am of the view that it is plainly right. The amendment to exclude injury caused by the use or effects of tobacco, and the consumption of alcohol, was made to the 1983 Order (the predecessor of the 2006 Service Pensions Order) in 1994. The Claimant says that the exclusion cannot have been intended to exclude injury caused by passive smoking because the dangers caused by passive smoking had not been recognised by 1994. That was a point which was specifically considered by Davis J, and I respectfully agree with what he said. Indeed, it seems to me that the exclusion in respect of injury due to the “use of tobacco” must cover every type of disease or illness which is caused by the claimant’s own use of tobacco. Had the intention been to exclude only disablement resulting from a claimant’s own use of tobacco, there would have been no need to refer to the “effects” of tobacco. The words “use of tobacco” would have sufficed, as do the equivalent words “consumption of alcohol” in relation to alcohol. It seems to me that the only purpose of the reference to the “effects” of tobacco can have been to exclude also disablement which results from the use by someone else of tobacco. The exclusion of disablement due to the consumption of alcohol is not extended to cover the “effects” of alcohol, presumably because it was not intended to exclude, for example, a case where someone else’s intoxication results in injury to the claimant.

16. The above points are reinforced by the fact that by the time when the 2006 Order was made, consolidating the previous provisions, the decision of Davis J in the Setter case had been given. The making of the 2006 Order, incorporating without alteration the amendment to the 1983 Order which had been made in 1994, in my judgment therefore confirmed the meaning which had been given by Davis J: see Bennion, Statutory Interpretation, Section 235. In that Section of the textbook the author cites, by way of example, the case of Phillips v Mobil Oil [1989] 1 WLR 888, in which it was argued before the Court of Appeal that a decision that a renewal covenant in a lease falls within the definition of “estate contract” in s.10 of the Land Charges Act 1925, and is therefore registrable as a Class C(iv) land charge, was wrong. The Court of Appeal rejected that argument, partly on the ground that on two occasions since the decision Parliament had made amendments to the 1925 Act without taking the opportunity to reverse it.

17. The Claimant refers in his submissions to his rights under the European Convention on Human Rights, but without attempting to formulate any precise basis on which those rights might assist him.

18. If he could establish that the exclusion of injury resulting from passive smoking constituted a breach of one or more of his rights under the Convention, it might well be possible, pursuant to the obligation in s.3 of the Human Rights Act 1998 to read primary and subordinate legislation in a way which is compatible with those rights, to construe the words “the use or effects of tobacco” as not comprising the effects on the claimant of the use by others of tobacco. I have therefore given some consideration to whether the exclusion of injury caused by the effects of tobacco was in breach of any of the Claimant’s rights under the Convention.

19. An entitlement to a pension under the 2006 Order which has actually arisen is clearly a “possession” within the meaning of Article 1 of the First Protocol (“A1P1”) to the Convention. However, it is not in my judgment possible to argue that the Claimant has been “deprived of his possessions”, in breach of A1P1, because of course he did not ever obtain an entitlement to a pension calculated by reference to disablement caused by passive smoking. It is true that, by 1994, when the amendment so as to exclude the effects of tobacco was made, the Claimant’s service in the RAF had ceased, and he had therefore been subjected to the passive smoking. However, he had not yet begun to suffer from COPD, and had not therefore become entitled to claim, yet alone actually claimed, a pension. All that he then had (if one makes all the necessary factual and legal assumptions in his favour) was a right to claim a pension in the event of his beginning to suffer COPD as a result of his previous exposure to passive smoking. That was not in my judgment a “possession” which he was entitled to say he could not be deprived of except in the public interest and in accordance with law. There can therefore in my judgment be no objection, founded on A1P1, to the amendment which was made in 1994 being interpreted in the manner which it was interpreted by Davis J.

20. I have next considered whether the Claimant could pray in aid Article 14 of the Schedule to the Convention, in conjunction with A1P1. However, it is now settled by House of Lords authority (see, in particular, R (RJM) v Secretary of State for Work and Pensions [2008] UKHL 63; [2009] 2 All ER 556) that the discriminatory treatment relied on under Article 14 must be by reason of a “personal characteristic” of the claimant. The Claimant’s argument would have to be that he has been treated less favourably than people who have suffered from COPD by reason of substances other than tobacco smoke to which they were exposed in the forces. In other words, people who suffer from COPD (or any other disease – e.g. cancer) as a result of passive smoking are treated less favourably than people who suffer from a disease as a result of some other substance or event which they encountered during service. The ground of discrimination is therefore that of being subjected to passive smoking, as opposed to being subjected to something else which was harmful. It is not in my judgment possible to argue that the feature of having been subjected to passive smoking, or suffering COPD as a result of subjection to passive smoking, is a “personal characteristic”, within the meaning of the decided cases. I do not therefore think that one gets to the stage, under Article 14, where it is necessary to consider whether the difference in treatment can be justified.

21. In my view, therefore, the Tribunal was right to hold that the Claimant could not succeed in relation to COPD, based on a contention that the COPD was caused by passive smoking.

22. The Secretary of State, in the clear and helpful written submission of Mr Colin Thomann of counsel on his behalf, accepts, in my judgment rightly, that the Tribunal did err in law in not dealing in its Statement of Reasons with the Claimant’s additional contention that the COPD was also caused by exposure to trichloroethylene. I further accept the Secretary of State’s submission that the matter should be remitted to a new tribunal so that that issue can be dealt with. It is pointed out in that submission that there was very little evidence before the Tribunal of the extent and duration of the alleged exposure, and “nor does the Secretary of State understand there to be any empirical evidence for such a link.” The Secretary of State has, however, chosen not to submit that I should substitute a decision that the COPD was not caused by trichloroethylene exposure because there was insufficient evidence to enable the Tribunal so to find. The Secretary of State considers it preferable that this causation issue should be determined by a new tribunal “with the benefit of appropriate evidence”, and as I have said I accept that. The Claimant will need to consider whether there is any additional evidence which he can put forward in relation to this.

23. As regards the Tribunal’s decision in relation to the mobility supplement, the Secretary of State’s submission is that (i) there is at present no appeal to the Upper Tribunal on foot in relation to it, but that he would not oppose my now granting permission out of time; but (ii) that the appeal must fail because (a) the Claimant has not succeeded in relation to the passive smoking point and in any event (b) he does not suffer from the required degree of restriction in his walking ability.

24. I propose to treat the chairman as having granted permission to appeal in relation to the mobility supplement appeal. Alternatively, if he did not intend to grant permission in relation to that appeal, he must in my judgment be treated as having refused permission, and I now extend the time for applying for permission and grant permission.

25. Had the Tribunal found that the COPD was caused by exposure to trichloroethylene, it would then have been necessary for it, in the mobility supplement appeal, to go on to consider whether the Claimant, as a result of the COPD and other conditions accepted as being due to service, suffered from a restriction of mobility to the required extent. The fact that the Tribunal did not, at least in so far as appears from the Statement of Reasons, consider whether the COPD was caused by trichloroethylene exposure therefore means, in my judgment, that its decision was also wrong in law in respect of the mobility supplement appeal. The Secretary of State’s submission proceeds on the basis that the mobility supplement appeal could only have succeeded if the Claimant’s contention in relation to passive smoking had succeeded. However, it does not seem to me that that necessarily follows, as a matter of law.

26. Both appeals must therefore be remitted to a new tribunal. For the avoidance of doubt, the new tribunal will proceed on the footing that, in so far as the Claimant’s COPD was caused by the effects of passive smoking, it was not an “injury” for the purposes of the 2006 Order. It will therefore be concerned to decide (i) (in the COPD appeal) whether the COPD was caused by trichloroethylene exposure and (ii) if so (in the mobility supplement appeal) whether the Claimant has suffered from the required degree of restriction on his mobility. It will be concerned with the effects of passive smoking only in so far as that might be relevant to whether the COPD was caused by trichloroethylene exposure.

27. I should also make clear, for the assistance of the First-tier Tribunal, that its file in relation to the mobility supplement appeal has not been before me, it never having been obtained from the First-tier Tribunal.

Charles Turnbull

Judge of the Upper Tribunal

14 January 2010