Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Appeal No.  CAF/914/2008

ADMINISTRATIVE APPEALS CHAMBER

 

Before Upper Tribunal Judge A Lloyd-Davies

 

 

DECISION

 

 

My decision is that the decision of the tribunal held on 18 and 19 October 2007 involved the making of an error of law. I set it aside.  I give the decision that the tribunal ought to have given, namely, that the claimant’s appeal was disallowed and that there were no grounds for back-dating his claim for war disablement pension to any earlier date than 21 August 2006.

 

REASONS

 

Summary of factual and procedural background

 

1. The claimant, who was born in October 1962, enlisted in the Royal Navy on 11 May 1981.  Unfortunately, on 15 October 1982, while riding his motorcycle to his parents’ home on week-end leave, he was involved in a road traffic accident.  He suffered a serious fracture of his left femur, tibia and fibula: he subsequently had a number of operations, but was left with a weakened left leg (which he broke on two further occasions, once while he was still in service).  He was discharged from the Royal Navy on 26 December 1985, having been granted premature voluntary release (“PVR”).  In 2006 he sought the advice of a service welfare organisation on unconnected matters; he was then told that he could make a claim in respect of his injured left leg.  He made a claim for war disablement pension: this was treated as made on 21 August 2006.  On 7 November 2006 a decision was made accepting the condition of “fracture of the left femur, tibia and fibula (1982)” as attributable to service and giving an assessment of 20% with a commencement date for the award of 21 August 2006. The claimant appealed on 17 November 2006.  The grounds for his appeal were that he wanted his award back-dated to the date of his discharge in 1985, that the assessment was too low and that there were other symptoms which were attributable to his leg injury.  His appeal on back‑dating came before a tribunal on 18 October 2007.  The claimant attended and was represented by a representative from the Royal British Legion; the Veterans Agency was represented.  The tribunal, after deliberating, gave an oral decision disallowing the claimant’s claim for back-dating.  The following morning (19 October 2007) the tribunal (which was due to hear other cases) had a change of mind: it decided that back-dating should be allowed from the day after the date of the claimant’s discharge, namely 27 December 1985. (The same representative of the Veterans Agency was present on 19 October 2007 but the claimant’s representative was not, although she was informed by the tribunal clerk of the changed decision the same day by telephone.)  The tribunal gave a short-form written decision allowing the claimant’s appeal on 19 October 2007, and subsequently a statement of reasons (the typewritten copy of which bears the date 3 November 2007) for so doing.  The Secretary of State applied for leave to appeal, raising as one of the grounds of appeal the question whether the tribunal had jurisdiction to change its mind.  The President of the Pensions Appeal Tribunal sought,. and received, statements from the members of the tribunal as to what had happened.  The President then granted leave to appeal.

 

2. I held an oral hearing of the appeal at the request of the Secretary of State.  The Secretary of State was represented by Mr Sachdeva of Counsel and the claimant was represented by Ms Holender of Lovells, instructed by the Royal British Legion.  Since the time allotted for the oral hearing did not prove sufficient, I gave the parties the opportunity of making further written submissions on the issues which had not been dealt with at the oral hearing.  This they did. I am grateful to those concerned for their comprehensive submissions, both written and oral.

 

Legislative Background

 

3. Before I turn to the evidence before the tribunal and to its findings, I summarise the relevant legislative background to the issues the tribunal had to determine.  So far as material to the present appeal, the legislation provides:-

 

(a) With exceptions, a claim for war disablement pension is a precondition to any award: article 34 of The Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 2006 (“the 2006 Order”).

 

(b) In certain cases a claim is not necessary. Relevantly, one such case is where the claimant has been discharged from service on medical grounds (and copies of his medical and service records have been delivered to the Veterans Agency): article 35 of the 2006 Order.

 

(c) The “date of claim” is the date on which a claim is received by the Secretary of State (or, if an enquiry about a claim has been made and the subsequent claim is made within three months of the enquiry, the date of the enquiry): article 37 of the 2006 Order.

 

(d) An award of war disablement pension, in cases where a claim is a precondition, takes effect from the later of the date of claim and the day after the date of discharge: paragraph 1 of Schedule 3 to the 2006 Order.

 

(e) Where a claim is not necessary (for instance, on the grounds of medical discharge), an award takes effect from the day after the date of discharge: paragraphs 1(10) of Schedule 3.

 

One exception to the “date of claim” rule (see sub-paragraph (d) above) is contained in paragraph 10 of Schedule 3 to the 2006 Order.  This provides:-

 

“10. Where a claimant satisfies the Secretary of State that -

 

(a) he would have made a claim…on an earlier date than he actually did but for an act or omission of the Secretary of State or any officer of his carrying out functions in connection with war pensions, defence or foreign and commonwealth affairs, which wrongly caused him to delay the claim… and that act or omission was the dominant cause of the delay; and

 

(b) that act or omission continued to be the dominant cause of the delay up to the moment the claim … made

 

any reference in this Schedule to the date of a claim…shall be treated as a reference to the earlier date referred to in this paragraph.”

 

[The form of the legislation cited above came into force in April 2001; from April 1997 until the 2001 amendment, there was no reference to “any officer [etc]” but a reference to “an administrative error” on the part of the relevant Secretary of State; and prior to April 1997 there was a discretion on the part of the Secretary of State to allow backdating].

 

It was common ground between the parties that any back-dating of the claimant’s claim (and hence his award) to any date earlier than 21 August 2006 depended on the claimant showing that the conditions of  paragraph 10 (in its post-April 2001 form quoted above) were satisfied: there was no submission that the earlier versions fell to be considered.

 

The evidence before the tribunal

 

4. In his claim form dated 22 August 2006 the claimant had stated in answer to a question relating to his reason for leaving service:

 

“Free discharge. Advised by CPO Gale not to take medical discharge as it would always hang over me and make employment v. difficult.”

 

In his appeal to the tribunal dated 17 November 2006 the claimant further stated:

 

“Maybe I could have taken medical discharge but was advised by a CPO Gale, I believe, from the Pay Office that this would not be a good idea as I would always be labelled “disabled” and my leg would get better anyway.  I did not know that it was unacceptably fragile and short by two centimetres.  I did not know that I would get knee and ankle pain and I thought that my limp would gradually disappear – it did not as my leg is two centimetres short.”

 

In addition to referring the tribunal to the above, the claimant’s representative referred the tribunal to three documents taken from the claimant’s service medical records (these documents were not in the statement of case relating to the backdating appeal but came from the papers relating to the claimant’s assessment appeal which also appears to have been before the tribunal).  The first document was dated 26 July 1984 and was written by a surgeon commander (based at the medical centre on HMS Nelson, where the claimant was then serving) to the Royal Naval Hospital Haslar, requesting a review at a fracture clinic.  It was in the following terms:

 

“Thank you for seeing this patient [i.e. the claimant] for review as arranged.  He does not feel he has made progress yet, despite physiotherapy, and has pain around lower ⅓ of leg.”

 

The next document was dated 1 August 1984, was headed “Report” and was from a surgeon captain at the hospital, who was a consultant in orthopaedics (the report was presumably written in response to the previous request for a review).  It stated:

 

“This patient was reviewed today following a long struggle to get his left tibia which was very nastily fractured back into line and provide him with a decent limb.  This bone has now healed and he has only minimal angulation.  Left knee however remains stiff as does his ankle and foot.  I cannot see this man fully P2 within a reasonable time and recommend that he be brought before a Medical Board of Survey with a view to invaliding, or retain him in P7 L7 Permanent until release in due course at the end of his engagement.”  [The abbreviations refer, I understand, to the PULHEEMS system of armed forces medical assessment: relevantly “7” is one stage above the lowest category “8” (“8” indicates medically unfit for service.)]

 

The third document was dated 17 August 1984, was also headed “Report” and was from the same surgeon captain.  It stated:

 

“Since my F.Med. 7 dated 1 August 1984 [quoted above] I have learned that this man has made arrangements to leave the Service by PVR. 

 

Since this precludes S and I in the normal course of events I have given the matter due consideration and feel that as he was not injured while on duty that the matter of Survey and Invaliding should not be pursued and recommend that he be retained until the end of his engagement in category P7R and may leave the Service in this category.”

 

(There is nothing in the records of proceedings made by the tribunal members to show that the claimant gave evidence on, or was asked questions about, these documents, although there are notes of his answers about the extent of his disablement).

 

The tribunal’s decisions and reasons

 

5. After deliberation on the late afternoon of the 18 October, the chairman delivered the oral decision of the tribunal.  Although the representative of the Royal British Legion was present at the time, there is no contemporaneous record from her of what the chairman said, beyond that the appeal was disallowed..  There is, however, a contemporaneous record made by the representative of the Veterans Agency.  His note is in the following terms:

 

“Decision – Disallowed.  Consider that the MO/CPO were not officers of the SOS for War Pension purposes as defined in para 10 of Schedule 3 nor did the decision to allow him [i.e. the claimant] to leave PVR constitute any act or omission as defined.  Even if that had been the case they do not feel that the evidence shows that these are shown to have been the dominant cause of the delay from 1984 to 2006 (21 years)”

 

In the absence of any contemporaneous record by the then Royal British Legion representative, the representative of the claimant appearing before me did not feel able either to accept or deny that the record made by the representative of the Veterans Agency on 18 October 2007 was correct.  Since, however, that record is clearly contemporaneous and there is no reason why that representative should not accurately state what was said, I accept the record.

 

6. The following day, after further deliberation, the tribunal announced that it would allow the claimant’s appeal and grant back-dating until 27 December 1985.  The representative of the Veterans Agency’s record is in the following terms:

 

“19/10/07 – Next morning the tribunal resumed talking about the decision given verbally the afternoon before.  After further discussion the tribunal changed its view of the evidence and decided that the advice given by CPO  & MO did constitute an act by an officer of the Secretary of State that had caused him [i.e. the claimant] to delay making a claim and was the dominant cause of delay up until the claim was made.  In announcing this on Friday morning the Chairman explained that they were applying a principle known in Crown Courts as the “Slip Rule” and that although they had announced yesterday that they were disallowing the appeal they had not completed the written reasons and felt that the decision had not been fully formalised until now.  RBL were not present today (no cases of theirs listed today) and their representative was informed by the PAT Clerk by telephone.  RBL representative is to phone appellant and advise him of the revised decision.

 

Decision – back-dated to 27/12/85.  Allowed.”

 

7. The relevant part of the tribunal’s written reasons for decision is as follows:

 

“6(i) The Appellant suffered a serious fracture to his lower leg in 1982; this has now been accepted as an attributable service injury.  A subsequent fracture of the tibia in 1983 was a minor injury by comparison and had no aggravating effect on the consequences of the original injury.  By August 1984 the Appellant was about to be recommended for a medical board for invaliding (see report 1/8/84).  But two weeks later the Surgeon Captain reviewed the case and his report (dated 17/8/84) records that the appellant is now to leave service voluntarily.  The consultant records the injury was not “on duty”.  This turned out to be an erroneous view.  When the appellant eventually claimed (in 2006) it was accepted as a service injury.

 

(ii) The appellant told us, and we accept his evidence, that about this time he was seen by the “Chief Writer” (Chief Petty Officer Gale) who advised him to take voluntary release rather than a medical discharge.  In our view this “advice” was probably reinforced by the view of the Captain Surgeon whose report we have referred to above.  Our finding is that given the appellant’s then age, his rank and all the surrounding circumstances he regarded this “advice” as wholly authoritative and he accepted it without question.  As a result, although the accepted service injury could have (and before the change of view noted above, would have) led to a Medical Discharge, the Appellant left service in 1985 and made no claim for a pension for over 20 years. 

 

(iii) The appellant told us, and we accept, that he first realised he could challenge the view that the 1982 injury was not a service injury when he saw a representative of S.A.F.A. in 2006.  The Appellant sought advice from this organisation not in relation to a pension but in relation to his domestic arrangements.  Through a representative of this organisation the Appellant realised he could make a claim, and he did so on 21/8/06.

 

(iv) We are satisfied, and we so find, that the actions of the Chief Petty Officer (backed up by the authority of the Surgeon Captain) in 1984 represent actions of an “officer” on behalf of the Secretary of State within the meaning of Schedule 3 Paragraph 10 of the Order.  We further find that these “acts or omissions” wrongly caused the Appellant to delay his claim.  Furthermore we find these matters were at the time the dominant (indeed the sole) cause of the failure to claim.  They remained the dominant cause of the delay until the moment the claim was made in 2006.”

 

The tribunal then concluded as follows:`

 

“7. We therefore find that the circumstances of this case fall within the provisions of paragraph 10 of schedule 3 of the Service Pensions Order 2006.  The commencement date of the claim is therefore the date on which the Appellant would have made the claim had it not been for the act or omission of the Secretary of State, namely the date of discharge from service, that is to say, 27/12/1985.

 

8. The appeal is therefore allowed.” 

 

The grounds of appeal

 

8. The grounds of appeal on behalf of the Secretary of State may be summarised as follows:-

 

(1) The tribunal had no jurisdiction, after it had pronounced its oral decision on 18 October 2007, to recall that decision and to replace it with the decision it gave on 19 October 2007.

 

(2) Alternatively to (1), if the tribunal had jurisdiction to recall its oral decision of 18 October 2007, it exercised that jurisdiction unlawfully or improperly.

 

(3) In any event, the tribunal erred in law in finding (i) that the acts or omissions of the CPO and surgeon captain wrongly caused the claimant to delay making his claim and (2) that such acts or omissions were the dominant and continuing cause of the delay until the claim was made.

 

(4) Further and in any event, the acts or omissions allegedly found to have wrongly caused the claimant to delay making his claim were not acts or omissions of an officer of the Secretary of State.

 

Ground of appeal (1) – the tribunal had no jurisdiction to remake its decision.

 

9. Counsel on behalf of the Secretary of State submitted that the tribunal did not have jurisdiction to re-visit its decision on 19 October 2007.  I was referred to Akewshola v. Home Secretary [2000] 1WLR 2295 and to R v. Immigration Appeal Tribunal, ex parte W1 Wanyoike [2000] Imm. AR 389, and also to Wade and Forsyth, Administrative Law (9^th Edition 2004) at page 938 for the proposition that a statutory tribunal has no inherent power to rescind or review its own decisions.  I accept that proposition.  However that proposition does not answer the prior question, namely, when does a statutory tribunal give its decision.  Before amendment in 2005, rule 18 of the Pensions Appeal Tribunals Rules 1980 provided that the decision of the tribunal might either be announced immediately after the hearing of the case or communicated in writing within seven days after the tribunal reached its decision.  Following an amendment in 2005, however, rule 18 provided:

 

“ (1) The chairman shall record –

 

(a) a summary of every decision of the tribunal; and

 

(b) a statement of the reasons for the tribunal’s decision.

 

(2) The decision notice and the statement of reasons specified in paragraph (1) shall be in such written form as shall have been approved by the President and shall be signed by the chairman.”

 

There is no reference in this amended version to the possibility of there being any “announcement” of the tribunal’s decision immediately after the hearing; further in rule 25 (as amended in 2005) the time limit for applying for leave to appeal runs from the date that the written statement of reasons has been given or sent to the applicant.  In my judgment, on the rules as amended in 2005, it is clear that the tribunal does not make its decision until that decision is recorded in writing and given or sent to the parties.  Prior to such giving or sending the tribunal technically has jurisdiction to amend, recall or revisit any oral decision that it may previously have given.  I use the word “technically” since I would not wish it to be thought that the jurisdiction could, or should, be used other than in the most exceptional case: the difficulties that can otherwise arise are exemplified by the present case.  I add that the conclusion I have reached is in accordance with the decision in Hanks v. Ace High Productions Limited [1978] ICR 1155 (where the EAT held that there was jurisdiction in an industrial tribunal to diverge in a written decision from an oral decision previously given) and with the judgments in R. v. Special Adjudicator ex p. Bashir [2002] Imm A.R.1 and SK (Sri Lanka) v. SSHD [2008] EWCA Civ 495 (where similar conclusions were reached in relation to tribunal decisions in the immigration field):  as in the present case, those decisions turned upon the procedural rules applying in the relevant jurisdiction. 

 

Ground of appeal (2) – the tribunal exercised its jurisdiction to change its oral decision wrongly

 

10. Given that I find that the tribunal technically had power to change its oral decision given on 18 October 2007, I now turn to consider whether or not it exercised that power properly.  It is clear, on any footing, that although the chairman of the tribunal referred, on the morning of 19 October 2007, to a “slip” rule, what the tribunal did went far beyond what is contemplated by a “slip” rule, which encompasses an accidental error or omission.  In my judgment, however, the fact that the chairman erroneously prayed in aid a “slip” rule does not mean that for that reason alone the recalling of the previous oral decision was in error of law.  If the tribunal otherwise did have jurisdiction and exercised it properly, then the substituted decision can and should stand notwithstanding that it was expressed to have been given in exercise of an inapposite power.  I therefore consider whether or not the tribunal exercised such jurisdiction as it had properly.

 

11. In each of Hanks and Bashir it was indicated that if a tribunal was about to change its mind from an oral decision previously given, then the parties should normally be invited to make further representations.  On behalf of the Secretary of State it was submitted that the representative of the Veterans Agency was not given any such opportunity.  On behalf of the claimant it was submitted that the representative of the Veterans Agency was present at the hearing on 19 October 2007 and could have made further submissions if he had so wished.  I rather doubt that the representative of the Veterans Agency was given an opportunity of making further representations: the chairman of the tribunal in his letter to the President of the Pensions Appeal Tribunal describing what had happened stated:

 

“We therefore re-assembled (as far as we could) the parties and gave our new decision and reasons.  The same VA representative (Mr Frith) from the day before was still present and he was brought back into the hearing room for the formal announcement of our new decision.”

 

From that statement it would appear that the representative of the Veterans Agency was presented with a new decision, rather than given any opportunity of making further representations.  On the other hand, given (i) that it appears from the records of proceedings of the tribunal members that the thrust of the argument on behalf of the Veterans Agency was on the question of whether the CPO and the surgeon captain were “officers” of the Secretary of State, rather than on the questions of act or omission or of dominant cause and (ii) that the effect of the oral decision was being undone within such a short space of time, it might well be argued that  it was not necessary in this particular case for the tribunal to hear further argument on what was essentially a pure point of law: I note the authorities referred to at the beginning of this paragraph state that it is “normally” preferable that a further hearing should be held, rather than essential.  I therefore consider that if the representative of the Veterans Agency was not offered the opportunity of making further representations before the tribunal announced its revised decision and if the revised decision had turned solely on the “officer” of the Secretary of State question, then any failure to give the representative of the Veterans Agency an opportunity to make further representations would not necessarily have been fatal to the tribunal’s revised decision.

 

12. In its oral decision of 18 October 2007, however, the tribunal not only decided

 

(a) that the CPO and surgeon captain were not “officers” of the Secretary of State;

 

but also

 

(b) that the decision to allow the claimant to leave on PVR did not constitute any act or omission as defined in paragraph 3 of Schedule 10 and

 

(c) that even if there had been such an act or omission the tribunal did not feel the evidence showed that such act or omission was the dominant cause of the delay between 1985 and 2006.

 

However, in paragraph 6(iv) of its reasons for its decision (quoted at paragraph 7 above) the tribunal wholly reversed its conclusions not only the “officer” of the Secretary of State question but also on the two essential findings of fact (see (b) and (c) above) made the previous day.  In changing its mind on these two issues the tribunal did not explain why it had done so.  In my judgment the failure to give any explanation of such a radical change of position renders the tribunal’s decision of 19 October 2007 erroneous in law (whether or not the representative of the Veterans Agency was given the opportunity of making further representations).  At the very least the Secretary of State was entitled to an explanation why the tribunal had changed its mind.  None was provided:  indeed the statement of reasons does not even record that there had been a change of mind.  (If the roles had been reversed and the claimant’s appeal had first been orally allowed, and then, on the following day, dismissed without any explanation of the change of heart, there can be no doubt that the decision would have to have been set aside: in my judgment the Secretary of State should be in no worse position).

 

Ground of appeal (3) – that the tribunal was wrong to find (i) that anything said or done by the CPO or surgeon captain was an act or omission which wrongly caused the claimant to delay making his claim and (ii) that any such act or omission was and remained the dominant cause of the claimant’s delay in making a claim.

 

13. On behalf of the Secretary of State it was submitted that the advice of the CPO, to the effect that the claimant should take voluntary, rather than medical, discharge on the grounds that a medical discharge might make future employment difficult, was not advice that could clearly be said to be wrong and did not of itself cause the claimant to delay any claim.  As regards the surgeon captain, the submission on behalf of the Secretary of State was that the report of 18 August 1984 was not made until after the claimant had already elected for PVR.  Finally it was submitted that the tribunal had not given an adequate explanation for its findings on the relevant issues.  In response, on behalf of the claimant, it was submitted that the tribunal’s findings were findings of fact which were justified on the evidence before the tribunal, that no error of law in those findings was to be found and that the tribunal’s reasons were adequate.

 

14. I recognise that a tribunal’s statement of reasons for a decision is not required to be an elaborate formalistic product of refined legal draftsmanship, to be subjected to a detailed analysis.  That said, however, I consider that the tribunal failed adequately to consider the following points.

 

(a) In both his original claim form and in his subsequent appeal, the claimant referred only to the advice of the CPO to the effect that taking a medical discharge might affect his future employment.  The claimant did not then mention either (i) the surgeon captain, or the contents of the surgeon captain’s report of 17 August 1984, or, in particular, (ii) that he had been told by the surgeon captain that his injury was not a service injury: it might have been expected that, if the surgeon captain’s report had been communicated to the claimant and was indeed a dominant and continuing cause of the claimant’s delay in making a claim, the claimant would have made earlier reference to it.  There is nothing in the tribunal members’ records of proceedings to show that the claimant himself in oral evidence confirmed the tribunal’s conclusions on the effect on the claimant of the surgeon captain’s report: those records indicate that the points were raised by the representative of the Royal British Legion by way of submission.  It is not self‑evident that the surgeon captain’s report of 17 August 1984 (which appears to have been addressed to the medical officer on HMS Nelson) was shown to the claimant or that its contents would otherwise have become known to him. These points should have been put to the claimant; there is nothing to show that they were.

 

(b) On page 18 of the statement of case relating to the backdating appeal is the claimant’s certificate of service.  There is an entry bearing the date 5 June 1984; alongside it there is a further entry headed “commencement of time” bearing the date 25 June 1984 against which there is written “Notice given – TX date 24 December 1985”.  The next entry is an entry for 2 January 1986 stating “not medically fit for discharge”. New DISC. 26 December 1985”.  The tribunal did not refer to this document which, at first sight, suggests that the claimant had given notice in June 1984 of his intention to take release on 24 December 1985 and that that release was in fact deferred until 26 December 1985, the claimant’s actual date of discharge.  If the entries in this document bear the meaning which I consider they may well bear, it calls into question whether anything reported by the surgeon captain in August 1984, even if communicated to the claimant, did in fact affect the claimant’s decision or could have affected it:  the tribunal did not deal with this point.

 

(c) I accept for the purposes of this appeal that the CPO gave the claimant the advice that he should avoid taking a medical discharge since this might affect his employment prospects outside the service and that the claimant took this advice.  That advice, however, did not, in my judgment, wrongly cause the claimant to delay making is claim:  according to the claimant’s own account in his claim form and letter of appeal he delayed making his claim because he had taken voluntary discharge, implying that he thought that, without a medical discharge, he could not make a claim.  Putting it at its highest, it seems to me that the CPO’s advice could only be categorised as wrongly causing the claimant to delay making his claim if additionally either the claimant was positively told by the CPO that he could not make a claim under the war pensions scheme or the tribunal found that he was not told that he could and that this omission was a wrongful omission.  The tribunal made no findings on this issue; nor did it investigate what information, if any, the claimant was given on discharge in December 1985,  well over a year after the events of June‑August 1984. 

 

(d) Even if the tribunal had not changed its mind and recalled its oral decision of 18 October 2007, in my judgment its findings in paragraph 6(iv) and paragraph 7 of its statement of reasons to the effect that the conditions of paragraph 10 of Schedule 3 to the 1986 Order had been shown to be satisfied, were no more than a statement of conclusions and required some further explanation of how those conclusions were reached, especially on the question of dominant and continuing cause.  The inadequacy of the reasoning renders the tribunal’s decision in error of law, even apart from the failure to explain the change of mind.

 

Ground of appeal (4) – the tribunal was wrong to find that the acts or omissions of the CPO or the surgeon captain were acts or omissions of an “officer” of the Secretary of State

 

15. I now consider the position on the footing that my conclusions on grounds of appeal (2) and (3) are wrong.  On behalf of the Secretary of State it was submitted that, in the phrase “act or omission of the Secretary of State or any officer of his carrying out functions in connection with war pensions, defence or foreign and commonwealth affairs” in paragraph 10(a) of Schedule 3 to the 2006 Order, the word “officer” encompassed only civil servants belonging to a relevant government department, and did not include members of the armed forces.  On behalf of the claimant it was submitted that the word “officer” could and did include members of the armed forces.  (Neither party, in my judgment correctly, referred me to the definition of “officer” in Schedule 6 to the 2006 Order, which defines the word in purely service-related terms.  This definition only applies “unless the context otherwise requires” – see Article 1(2) – and the context of paragraph 10 of Schedule 3 clearly “otherwise requires” since on any footing civilian officials of the relevant Secretary of State are to be included.)

 

16. The following points were, I believe, common ground between the parties.

 

(a) In 1984/5 the Government department responsible for the administration of war pensions was the then Department of Health and Social Security.  (My understanding is that the relevant functions were transferred to the Ministry of Defence in 2001). 

 

(b) Civil servants are servants or officers of the Crown.

 

(c) Members of the armed forces are officers or servants of the Crown.

 

(d) The phrase “Secretary of State” encompasses any Secretary of State.

 

(e) A Secretary of State is a member or aspect of the Crown. 

 

(f) The functions of a Secretary of State can be delegated to officers of the Secretary of State.

 

(g) The government, command and disposition of the armed forces is vested in the Crown by prerogative right, save and insofar as expressly divested or delegated.

 

17. The current governance of the armed forces derives from the Defence (Transfer of Functions) Act 1964 and letters patent, which created the current tri-service Ministry of Defence and Defence Council in place of the previous separate ministries and of the previous Admiralty Commissioners, Army Council and Air Council. Section 1 of  the 1964 Act provides:-

 

“If Her Majesty is pleased to make arrangements –

 

(a) for one of Her principal Secretaries of State to be charged with general responsibility for defence; and

 

(b) for the establishment of a Defence Council having powers of command in administration over Her Majesty’s Armed Forces and of an Admiralty Board, an Army Board and a Air Force Board to be charged (under the Defence Council) with the administration of matters relating to the Naval, Military and Air Force respectively, then on such day as Her Majesty may by Order in Council appoint those arrangements to take effect … the statutory functions below mentioned shall be transferred to a Secretary of State or to the Defence Council as provided by this section”.

 

By letters patent dated 16 March 1964 the Crown

 

(a) gave general responsibility for the defence of the realm to the Secretary of State;

 

(b) established a Defence Council (consisting of the Secretary of State, the Ministers of Defence, the four most senior members of the armed forces and the two most senior civil servants in the Ministry of Defence) which was to be chaired by the Secretary of State and to act under his direction;

 

(c) directed the Defence Council to have command under the Crown of all officers and ratings,  soldiers and airmen of the naval, military and air forces;

 

(d) directed the Defence Council to establish an Admiralty Board, an Army Board and an Air Force Board to be charged with the administration of such matters relating to the armed forces as the Defence Council should direct;

 

(e) directed that the Boards should have command under the Crown and the Defence Council of the members of the armed forces placed by the Defence Council under their command;

 

(f) gave the Defence Council authority to give and dispose of offices, places and employments in the armed forces which should become vacant; and

 

(g) enjoined the members of the armed forces and all others whom it might concern to be obedient to the Defence Council and to the Boards established by the Defence Council.

 

18. It was urged on me by the claimant’s representative that since the Secretary of State for Defence had “a general responsibility for” defence and that the Defence Council acted “by his direction”, it followed that members of the armed forces were indeed “officers” of the Secretary of State.  I cannot accept that argument.  It is clear from the terms of Section 1 of the 1964 Act and of the letters patent that there is a division of function between (i) the Secretary of State on the one hand and (ii) the Defence Council (and the three service Boards acting as delegates of the Defence Council) on the other hand.  The functions of command and administration of the members of the armed forces are vested in the Defence Council and the service Boards, and the concomitant duty of obedience on those members is to the Defence Council and the service Boards.  The fact that the Secretary of State has a general responsibility for defence and that he has power to direct the Defence Council does not, in my judgment, make the functions of command of the armed forces those of the Secretary of State or transfer the duties of obedience of the members of the armed forces to the Secretary of State.  The members of the armed forces accordingly do not become “officers” of the Secretary of State.

 

19. The claimant’s representative referred me to the Ministry of Defence Departmental Framework, the Defence Framework and documentation relating to the 2005 Armed Forces Compensation Scheme and the Armed Forces Pension Scheme 1975 as demonstrating the way in which the responsibilities of the Ministry of Defence and of the armed forces became commingled and how unit administrations (staffed by members of the armed forces) had involvement in matters related to service‑related pensions and other benefits.  I was further referred to the Military Covenant and to the judgment in Secretary of State for Defence v. Read [2004] EWHC 1271 (Admin) as showing the obligations of the Crown to provide information to members of the armed forces on service‑related benefits available to them.  It was submitted that if “officers” of the Secretary of State excluded members of the armed forces, then it was unrealistic, given what actually happened in the service context, where advice might well be given by persons in authority to members of lower ranks, arbitrarily to exclude such advice as potentially being a relevant wrongful “act or omission”.  In my judgment, however, these considerations should not be prayed in aid if the meaning of the phrase “officer” of the Secretary of State is otherwise clear.  In any event I consider that the argument goes too far.  If it is correct, then “act or omission of the Secretary of State or any officer of his carrying out functions in connection with … defence …” would encompass any act or omission of any member of the armed forces which wrongly caused a claimant to delay his claim.  This, in my judgment, is casting the potential liability for acts or omissions far too wide.  If in fact the wording of the legislation does not fit past or current administrative realities, then in my judgment that is a matter for a change in the legislation, rather than to be dealt with as a matter of construction.

 

20. I therefore conclude that the word “officer” has the limited construction contended for by the Secretary of State.  I add that in my view the word “officer” in paragraph 10 was intended to mean no more or less than “an official” of the Secretary of State

 

21. Finally I turn to the argument that the surgeon captain and the CPO had ostensible authority to carry out functions on behalf of the Secretary of State.  I was referred to the decision (in the social security field) in CIS/610/1998 where the Commissioner held, in remitting a case for further findings, that it might be arguable that a sub‑contracted security guard who was wearing a Benefits Agency jacket, handing out leaflets and directing claimants where to go in a benefit office could be found to have ostensible authority on behalf of the Secretary of State.  In my judgment that decision is very far from the present case.  There is no suggestion that either the surgeon captain or the CPO were acting or purporting to act otherwise than as members of the Royal Navy.  It is not sufficient simply to say that the alleged acts or omissions wrongly caused the claimant to delay making the claim and therefore the persons responsible had ostensible authority; in order to succeed on this point the claimant would have to establish that the surgeon captain or the CPO were holding themselves out as, or could have been mistaken for, civil servants from the DHSS (which was then charged with the administration of war pensions); there is nothing to suggest that they were.  This argument cannot succeed.

 

 

 

 

Conclusion

 

22. Had I allowed this appeal solely on grounds (2) and (3), I would have been minded to remit the case for rehearing by a differently constituted First‑tier Tribunal.  However, since I have found for the Secretary of State not only on grounds of appeal (2) and (3), but also on ground (4) I conclude that I may properly substitute my own decision: the parties agreed in response to a direction from me that, if I should so conclude, this would be an appropriate course for me to take.  Accordingly my decision is as given above.

 

 

 

 

 

(Signed on the Original)

 

A Lloyd-Davies

Judge of the Upper Tribunal

 

(Date) 28 April 2009