Upper Tribunal (Administrative Appeals Chamber)

DECISION OF THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

The claimant's appeal to the Upper Tribunal is allowed. The decision of the Taunton First-tier Tribunal sitting on 5 August 2010 involved an error on a point of law, for the reasons given below, and is set aside. It is appropriate for the Upper Tribunal to re-make the decision on the claimant’s appeal to the First-tier Tribunal (Tribunals, Courts and Enforcement Act 2007, section 12(2)(b)(ii)). That decision is set out in paragraph 13 below.

REASONS FOR DECISION

1. This case has been bedevilled by delays at several stages. First, the hearing of the claimant’s appeal to the First-Tier Tribunal, initially treated as against the revised decision under article 45 of the Armed Forces and Reserve Forces (Compensation Scheme) Order 2005 (the AFCS Order) given on 14 October 2008, was deferred to await the outcome of the appeal to the Court of Appeal in Secretary of State for Defence v Duncan and McWilliams [2009] EWCA Civ 1043, [2010] AACR 5, in which judgment was given on 12 October 2009. Before the hearing was re-listed, there was a further revision to the claimant’s advantage on 23 February 2010. I deal briefly below with the technical form of that revision. The appeal, then to be regarded as if it had been brought against the decision of 23 February 2010 (Tribunal Procedure (First-tier Tribunal) (War Pensions and Armed Forces Compensation Chamber) Rules 2008, rule 22), was heard on 5 August 2010. It looks to me from the documents on file that the decision notice with reasons was prepared by the chairman on the following day, but for some reason was not issued to the parties until 4 October 2010.

2. The President of the First-Tier Chamber gave the claimant permission to appeal to the Upper Tribunal on 16 November 2010. The appeal was lodged in December 2010. I gave directions for written submissions on 28 February 2011, but unfortunately they were not issued to the parties by the Upper Tribunal (AAC) office until 27 April 2011. Then the representative of the Secretary of State asked for an extension of time in order to incorporate in the submission discussion of the practical impact of the new AFCS Order 2011. The submission was received on 27 June 2011 and issued on 12 July 2011. Then the claimant’s solicitors received an extension of time because of the delayed receipt of the submission, but on 30 September 2011 the claimant wrote in to say that the solicitor concerned had left the practice and asked for documents to be sent to him until he found a new representative. On my instruction, the Upper Tribunal (AAC) office wrote to the claimant to ask if he was requesting an extension of time or wished a decision to be made on the documents already in the file, including several recent letters with medical documents from the claimant. Eventually, the claimant wrote on 13 December 2011 that he was to be represented by Mr Glyn Tucker of the Royal British Legion (RBL). A Registrar of the Upper Tribunal sent Mr Tucker a copy of the Secretary of State’s submission of 27 June 2011 and gave him a month to reply. The reply dated 27 January 2012 was to accept the suggestion in that submission as to how this case should be dealt with. Unfortunately, I seem to have misread the contents of that reply and wasted some more time by getting the Upper Tribunal (AAC) office to contact Mr Tucker to ask whether he was proposing to put in any further submission, which I now see it was plain that he was not intending to do.

3. At any rate, in the light of the agreement about the form of the decision that should be made by the Upper Tribunal, I can give relatively brief reasons. But I fear that a good deal of technical discussion cannot be avoided.

4. It is first necessary to clarify, with the very considerable help of the comprehensive submission of 27 June 2011 on behalf of the Secretary of State, exactly what the decision was that was under appeal to the tribunal of 5 August 2010. The printed statement of case described the decision under appeal as that of 14 October 2008, a revision on reconsideration under article 45(5) of the AFCS Order of the initial decision of 5 July 2008, against which the claimant had appealed. The October 2008 decision was to identify the following injuries as caused by service (I have added the references to the relevant item in the Tables in Schedule 4 to the AFCS Order as amended from 2006, with the tariff levels, with a correction to what I am sure was a typing errors and other points noted in square brackets):

(1) skull fracture Table 8, item 59, level 14

(2) traumatic brain injury Table 6, item 19, level 12

(3) left corneal shrapnel penetration Table 7, item 33, level 14

[in fact found as retinal damage in one eye]

(4) fracture of cervical spine C5 & C7 Table 9, item 11, level 14

(5) perforation of left tympanic membrane Table 7, item 28, level 14

[in fact found as blast injury to ears]

(6) non-displaced fracture of left radius Table 8, item 12, level 11

 [in fact found as fracture of left distal ulna]

(7)   extensive soft tissue injury left arm Table 2, item 39, level 12 (2008 Table)

(8)   left areola swelling below tariff level

(9)   right ATFL (ankle) injury Table 8, item 19, level 12

(10) psychological distress Table 3, item 5, level 13

(11) shrapnel wounds to head and neck Table 2, item 39, level 12 (2008 Table)

The uses of the 2008 Tables were apparently brought in through the mechanism of temporary awards under article 20. Because at the time the AFCS Order only allowed the three most serious injuries to be counted, 100% of the tariff amount for (6) was awarded and 30% and 15% for (9) and (2), in accordance with article 15(2). That resulted in a small extra payment to the claimant over what had originally been awarded and paid.

5. While the hearing of the appeal that was agreed to be continuing against the decision of 14 October 2008 was deferred, on 23 February 2010 the Secretary of State revised that decision after obtaining up-to-date medical records from Headley Court. The revised decision was to increase the classification of (9) to level 11 (Table 8, item 12, accepting permanent significant functional limitation and restriction) and of (10) to level 12 (Table 3, item 4, accepting functional limitation and restriction beyond two years). According to the submission of 27 June 2011 the revision followed a review relying on the powers in article 49 of the AFCS Order (ignorance of or mistake as to material fact or mistake of law). I shall come back to article 49 below. There would again have been an increase in the payment due to the claimant, because 30% of the full tariff amount for (9) was now to be calculated on a higher figure. The claimant was apparently informed of the conditions in rule 22 of the Tribunal Procedure (First-tier Tribunal) (War Pensions and Armed Forces Compensation Chamber) Rules 2008 about the lapsing of an appeal following a revision of the decision under appeal. The claimant replied on 1 March 2010 that he wished to appeal against the new award, so that in accordance with rule 22 the appeal was to proceed as if it had been brought against the decision of 23 February 2010.

6. The claimant attended the hearing on 5 August 2010 with a representative from the RBL and obviously gave quite extensive evidence. The tribunal allowed the appeal in one very important respect. It ruled that conditions (6) and (7) in the list above should properly be taken into account as one injury falling within item 12 of Table 2 (tariff level 8). To make sense, that must have been a reference to the 2008 Tables, although I suspect that that 2006 Tables were applicable, in which case the reference should have been to item 10 of Table 2:

“Injury covering all or most of the area from thigh to ankle or shoulder to wrist, causing permanent functional limitation and restriction.”

The tribunal described this as a complex injury case, echoing the use of language in paragraph 60 of the judgment of Elias LJ in Duncan and McWilliams, which it set out. However, I am satisfied that in both those places the word “complex” was being used in the ordinary sense of complicated and that the tribunal was not intending to indicate that the case came within one of categories using the specially defined meaning of “complex injury”. The descriptor chosen merely required an injury covering all or most of the area from shoulder to wrist of the left arm. Although the tribunal did not spell out in its statement of reasons how that condition was satisfied, that was a conclusion that was open to it on the evidence and the Secretary of State has taken no objection to the award or to any deficiency in the statement of reasons. Indeed payment of the greatly increased lump sum has been made and the Secretary of State has in the submission of 27 June 2011 submitted that the Upper Tribunal should give effect to that conclusion in a substituted decision.

7. The tribunal went on the reject the argument for the claimant that his traumatic brain injury should be placed in a higher category because of the risk of epilepsy, finding that there was no evidence of current epilepsy that would justify a higher category, and that the rest of the identification of injuries was not to be disturbed. I pause there to note that the grant of permission to appeal by the Chamber President appears to have been made on the mistaken assumption that the tribunal had made no award at all for the brain injury, so that the tribunal ought to have warned him of that possibility and given him the opportunity to obtain further medical evidence. That was plainly not the case. The tribunal merely made no change to the existing classification of the brain injury as item 19 of Table 6.

8. Unfortunately, however, when setting out the existing injuries accepted in the decision under appeal and which it then confirmed (apart from (6) and (7) the tribunal set out the classification as done on 14 October 2008, not as done on 23 February 2010. Thus the decision appeared to deprive the claimant of the benefit of the revision carried out on the latter date. The Secretary of State’s submission is that that was an error of law that justifies the setting aside of the tribunal’s decision. I agree.

9. Before going on to consider the decision to be substituted on the appeal against the decision of 23 February 2010 I should say a little about the nature of that decision. I find it hard to agree with the Secretary of State’s submission of 27 June 2011 that it was given under the power to review in article 49 of the AFCS Order. There was no mention in any of the documents at pages 398 to 407A of any material fact about which the Secretary of State was ignorant or mistaken as at 14 October 2008, let alone of the rather obscure further conditions in paragraphs (a) and (c) of article 49(2). By contrast, the emphasis was on the additional and up-to-date medical evidence received and on what that showed the claimant’s 2010 situation to be in terms of the likely permanency of limitations and restrictions from the ankle injury and of the length of time for which the claimant’s psychological distress had continued. All that points to a relevant change of circumstances subsequent to the decision of 14 October 2008, which is not a ground of review under article 49. The problem then is that relevant change of circumstances is not as such a ground of review under the AFCS Order at all, given that the case could not come within the exceptional circumstances in article 48. So the question arises whether the Secretary of State had the power to alter the decision of 14 October 2008 at all.

10. In my judgment, the answer must lie in the duty in article 45(5) to reconsider an “original decision” against which an appeal has been made, if no express application for reconsideration has been made. “Original decision” is defined in article 45(1) simply as a decision of the Secretary of State apart from one to make an interim or temporary award. Nor is there anything to state that a revised decision made on reconsideration, such as that of 14 October 2008, cannot itself be reconsidered where an existing appeal is to be treated, by virtue of rule 22(1)(a) of the Procedure Rules or possibly otherwise, as if it had been brought against the revised decision. Accordingly, the Secretary of State was obliged, once the claimant’s appeal against the initial decision of 5 July 2008 was acknowledged as proceeding as if it had been made against the decision of 14 October 2008, to reconsider the latter decision. Where there is an express application for reconsideration the Secretary of State must, under article 45(1), do so within three months. There is no period set under article 45(5) for action. In a sense, the Secretary of State must keep a decision which is under appeal under continual informal reconsideration down to the date of consideration by the First-tier Tribunal, with the appropriate action in terms of a formal decision to confirm or revise the original decision depending on the circumstances of the case and the nature of any new evidence (including evidence of changes of circumstance subsequent to the decision) that has emerged. Accordingly, I am satisfied that the decision of 14 October 2008 was properly revised on reconsideration under article 45(5) on 23 February 2010. By reason of the claimant’s letter of 1 March 2010 his appeal continued as if it had been made against the decision of 23 February 2010. Thus that was the appeal that was before the tribunal of 5 August 2010 and which would fall to be redetermined if the decision of that tribunal were set aside.

11. I now, for the reasons given above, set aside the decision of the tribunal of 5 August 2010 as involving an error on a point of law. In the circumstances, including the agreement of both parties, it is appropriate to re-make the decision on the appeal against the decision of 23 February 2010.

12. In doing so I do not need to make any further findings of fact, but adopt those made by the tribunal of 5 August 2010. The Secretary of State is content for the Upper Tribunal decision therefore to endorse that tribunal’s award under item 10 of Table 2 (2006 version) and otherwise to correct the errors in the other injuries identified. The submission of 27 June 2011 very helpfully and fully explains why it is important for the purposes of the application of the new 2011 Order to existing awards to identify correctly all the qualifying injuries, not just the three most serious. For his part, the claimant, with the skilled and experienced advice of Mr Tucker of the RBL, has expressed his willingness to accept a decision in that form, as the basis for the application of the 2011 Order. That entails not pursuing any challenge to the Secretary of State’s classification in the decision of 23 February 2010 of his traumatic brain injury in Table 6 at item 19.

13. Accordingly, the decision on the appeal against the decision of 23 February 2010, as remade by the Upper Tribunal, is this. The appeal is allowed and the decision is given that the claimed conditions are placed within the tariff as follows (I have retained the same numbering for the conditions as used by the Secretary of State in his decisions down to 23 February 2010, but substituted the First-tier Tribunal’s award under Table 2 for the original (6) and (7), so that there is no longer a condition (7),):

(1) skull fracture Table 8, item 59, level 14

(2) traumatic brain injury Table 6, item 19, level 12

(3) left corneal shrapnel penetration Table 7, item 33, level 14

[in fact found as retinal damage in one eye]

(4) fracture of cervical spine C5 & C7 Table 9, item 11, level 14

(5) perforation of left tympanic membrane Table 7, item 28, level 14

[in fact found as blast injury to ears]

(6) injury covering all or most of the area Table 2, item 10, level 8

from shoulder to wrist, causing

permanent functional limitation and

restriction

(8) left areola swelling below tariff level

(9) right ATFL (ankle) injury Table 8, item 12, level 11

(10) psychological distress Table 3, item 4, level 12

(11) shrapnel wounds to head and neck Table 2, item 39, level 12 (2008 Table).

(Signed on original):  J Mesher

  Judge of the Upper Tribunal  

Date: 20 March 2012