Upper Tribunal (Administrative Appeals Chamber)

[2013] AACR 4 (Secretary of State for Defence v RC (WP) [2012] UKUT 229 (AAC) ) Mr Justice Walker CAF/800/2011 Judge Rowland JR/3196/2011 Judge Mesher 27 June 2012 War disablement pension - refusal to review - whether right of appeal A former soldier claimed disablement pension under the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 1983, now replaced by the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 2006. It was accepted that his back condition was a pre-existing condition which had been aggravated during service. Disablement was assessed at between one to five per cent on an interim long-term basis and a disability gratuity of over £1,700 was awarded in lieu of a pension. Following an application for review of the assessment the claimant was notified in 2000 that it had been made final but not that a medical adviser for the Ministry of Defence had also signed a certificate of limitation. The adviser's view was that the post-service deterioration was due to post-service factors. In 2009 the claimant sought a further review on the basis that his condition had deteriorated. The Secretary of State decided there were no grounds to review the case as it was impossible for any deterioration to be because of service. The claimant appealed. The Secretary of State applied for the appeal to be struck out on the ground that there was no right of appeal against a refusal to review. The First-tier Tribunal held that there was a right of appeal under section 5(2) of the Pensions Appeal Tribunals Act 1943. The Secretary of State appealed. The issues before the Upper Tribunal (UT) were whether the Secretary of State was entitled to refuse to review a decision and, if so, whether the claimant had a right of appeal against such a refusal or a decision that there are no grounds for review. In view of the wider importance of these issues a three-judge panel was constituted. The claimant also applied for judicial review of the Secretary of State's decision which was transferred to the UT to be heard with the appeal. Held, dismissing the Secretary of State's appeal and granting the claimant permission to apply for judicial review but dismissing his substantive application, that: 1. ( per Judges Rowland and Mesher) the issuing of a medical certificate of limitation has no legal effect - it is only a device for drawing the attention of decision-makers and medical advisers to reasoning that is likely to be conclusive in future determinations (paragraph 34);   2. ( per Judges Rowland and Mesher) where an award has been made under the Service Pensions Order 2006, following an assessment of disablement, an application for review must be treated as both an application for review of the assessment under article 44(1) and an application for review of the award under article 44(2)(c) (paragraph 40);   3. ( per Judges Rowland and Mesher) an application for review under article 44(1) (on "any ground") should always lead to a review and therefore a decision under article 44(6). The absence of an arguable ground for revision should lead to a decision to maintain the decision or assessment (not a decision that there are no grounds for a review) (paragraph 50);   4. ( per Judges Rowland and Mesher) a decision under article 44(6) to maintain a previous decision, assessment or award is appealable even though that involves a strained construction of section 5(2) of the 1943 Act (paragraphs 58 and 59);   5. ( per Judges Rowland and Mesher) alternatively and additionally, a refusal to review is also appealable; a claimant not only has a right of appeal against a decision under article 44(6) to maintain a final assessment, but also has a right of appeal against a decision that there are no grounds for review of such a final assessment, so that any decision under article 44 is appealable (paragraphs 75 and 76);   6. ( per Mr Justice Walker) whether there is a right of appeal under section 5(2) depends on whether the substance of the decision meets the requirements of that section (paragraph130);   7. ( per Mr Justice Walker) those requirements may be met by what is done when deciding not to review an earlier assessment and will be met where the application is considered under article 44(1) under the Secretary of State's current policy (paragraph 131).     DECISION OF THE UPPER TRIBUNAL (ADMINISTRATIVE APPEALS CHAMBER)

 

Ms Samantha Broadfoot of counsel, instructed by the Treasury Solicitor, appeared on behalf of the Secretary of State.

 

Mr Hugh Lyons, barrister of Hogan Lovells International LLP, appeared on behalf of the claimant.

 

Decisions: The Secretary of State's appeal against the decision of the First-tier Tribunal dated 7 October 2010, refusing to strike out the claimant's appeal to the First-tier Tribunal, is dismissed.

 

The claimant is given permission to apply for judicial review of the Secretary of State's decision dated 6 August 2009 but the substantive application is dismissed.

 

REASONS OF JUDGES ROWLAND AND MESHER

 

1. These proceedings, an appeal from a decision of the First-tier Tribunal, refusing to strike out an appeal to that tribunal from a decision of the Secretary of State for Defence, and an application for permission to apply for judicial review of the same decision of the Secretary of State, raise important questions concerning applications for reviews under the service pensions scheme. Is the Secretary of State entitled to refuse to review a decision when an application for review is made to him? If so, does the claimant have a right of appeal against a refusal to review or a decision that there are no grounds for review?

 

The facts and procedural history

 

2. The facts of the case are by no means atypical.

 

3. The claimant served in the Army from 31 October 1988 to 15 April 1997. Service medical records show that he had complained in 1996 of back pain in his lumbar region on flexion, saying that he had fallen into a pit when he was 16 and thought that was connected. He had been referred for an X-ray. The consequent report of 17 June 1996 said:

 

"Coverage from T.10 downwards. There is an unusual L.4 spondylolysis and it may even be bilateral. However, there is no forward slip of L.4 on L.5. The S.I. joints are normal."

 

The records show that the claimant was advised to rest his back.

 

4. On 16 April 1997, the day after his discharge from the Army, he made a claim for a disablement pension under the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 1983 (SI 1983/883) on the ground that he had suffered a back injury as a result of his service. He attended a medical examination on 25 July 1997. In the course of the examination, he said that, after he had been posted to Hong Kong late in 1996, he was required to do training and perform other duties involving heavy lifting, which he had been told not to do by the medical officer. The examining doctor was of the opinion that the claimant could walk up to 2,000 metres without severe discomfort and he described the function of the claimant's back as "some restriction of lumbar movements with pain". On 26 August 1997, the condition "spondylolysis L4" was accepted as having been aggravated by service and disablement was assessed at one to five per cent for an indeterminate duration on an "interim" long-term assessment basis. It is clear from the certificate issued by the medical adviser that the reasoning behind the decision was that it was considered that there had been no significant back injury during the claimant's service and that the "[b]asic injurious process must therefore be congenital and due to injury pre-service". However, service aggravation could not be excluded and was accepted in view of the burden of proof in cases where a claim is made within seven years of service. The degree of disablement was regarded as low. The "interim" nature of the assessment shows that the possibility of future service-related deterioration was not excluded but the long-term nature of the assessment shows that it was not considered likely to manifest itself in the near future, if at all.

 

5. A disability gratuity of £1,706 was paid in lieu of a pension, although no copy of the decision letter survives. (We asked why this and the other decision letters sent to the claimant in the past were not in the file originally before us and we were told that for some years the Ministry of Defence took those letters out of claimants' files with a view to keeping them separately. The consequence is that some decisions have been lost and others are often not immediately available to those who construct files for the First-tier Tribunal and are consequently omitted. This is unfortunate, because the procedural history of a case is often important. We hope that, as was eventually done in this case, copies of decisions will in the future always be obtained where possible and inserted into the papers prepared for tribunals.)

 

6. By a letter dated 28 March 1999, the claimant sought a review on the ground that there had been a deterioration in his condition. Further medical evidence was obtained and the claimant was examined on 9 December 1999, the examining doctor finding:

 

"1. Severe lumbar spondylolysis.

2. Bilateral sciatic type pain.

3. Pain at rest/inhibition of all back movements and mobility."

 

This time, the examining doctor was of the opinion that the claimant could walk up to about 55 metres without severe discomfort and he described the function of the claimant's back as "severe restriction of all movements".

 

7. On 10 February 2000, two certificates were issued by a medical adviser. One was a "Certificate of Entitlement and Assessment" and the other was a "Medical Certification of Limitation". Neither was sent to the claimant and, indeed, the second materialised only in the course of the proceedings before us. The first certificate certified that spondylolysis L4 was aggravated by service and that the disablement was assessed at one to five per cent for an indeterminate period on a final basis. In his reasoning, the medical adviser referred to the evidence and concluded:

 

"In my medical opinion, the evidence indicates that the post service deterioration is due to post-service factors, possibly related to his occupation. The evidence does not suggest that the deterioration is due to further aggravation by service.

 

The current assessment is, therefore, maintained, limited and made final."

 

8. The claimant was notified of the consequent decision by a letter sent on 15 February 2000. The letter was in a standard form, with tick boxes, and it was accompanied by an information leaflet and a six-page form with yet more tick boxes. The tick boxes and the spaces for the addition of handwritten details enabled the decision-maker to communicate the precise terms of the decision. Computer macros would now achieve the same result in a more user-friendly format. The letter informed the claimant that he would not be paid any more money and it referred him to the six-page form for details of the decision and to the information leaflet for information as to what he could do if he disagreed with the decision or did not understand it and as to changes he needed to report. We are told that the information leaflet told the claimant of the right of appeal that, it is common ground, he had. The letter itself also said:

 

"If you disagree with our decision you can ask us to look at your case again. Tell us why you disagree. If you delay you may lose some money."

 

9. The effect of the ticks and insertion of details on the six-page form was that notice of the decision read:

 

"We have looked at your recent medical examination report.

 

We have looked at how your condition affects you.

 

We have looked at your case again but we cannot pay you more money. This is because we have looked at all the medical evidence and confirmed that our assessment is still correct at 1-5%.

 

We have already paid you a lump sum payment for this amount of disablement. We call this lump sum payment a gratuity.

 

Because the degree of disablement due to your accepted conditions is most unlikely to change our doctors have made a final assessment. If, exceptionally, you think your level of disablement from your accepted conditions has changed you can ask us to look at it again. We call this a review. We will normally require you to provide evidence to show there are grounds for us to review your assessment if you want us to look at it again.

 

Your condition spondylolysis L4 has been accepted by the Agency on the basis that it was made worse by service, but not that it was entirely due to service.

 

The assessment takes into account the disablement you had when your service ended on 15/04/1997 including any disablement you had before your service.

 

If, at a later date, there has been further worsening due, not to the continuing effects of service, but to the natural progress of the condition or other things which have happened since your service ended, the terms of the Service Pensions Order cannot take it into account.

 

Our doctors have informed us that since your discharge from service there has been worsening because of the natural progress of your condition.

 

The assessment correctly represents the amount of disablement due to service."

 

10. There matters rested for another four years but, on 7 October 2004, the Secretary of State received another application for review, in which the claimant said that his back condition had deteriorated to the extent that he had had to give up work and that he now had sciatica as well as spondylolysis. However, the Secretary of State's medical adviser said:

 

"The medical evidence at doc 42 refers to sciatic type pain. Sciatica was therefore a recognised feature of this condition at the time of imitation and finality.

 

There are no grounds to review the decision @ doc 48."

 

11. The decision made in consequence of that advice was sent to the claimant in a letter dated 5 February 2005, which said:

 

"I am writing about your further claim in respect of sciatica.

 

Our doctors have confirmed that this condition is a recognised feature of the accepted condition Spondylolysis L4 and has therefore been taken into account when deciding your original claim.

 

I am sorry to tell you that there are no grounds to review this decision and the assessment remains appropriate."

 

12. A further four years later, on 22 July 2009, the Secretary of State received the application for review that has led directly to these proceedings. Again it was based on the claimant's condition having deteriorated, he attributing his current condition to service. He also enclosed a hospital letter informing him that an appointment had been made for him in an orthopaedic outpatients clinic. The sequence of events was much the same as in 2005. On 28 July 2009, the operational caseworker referred the case to a medical adviser who replied on 5 August 2009:

 

"As you point out the assessment is limited and final. It is appreciated that [the claimant's] condition may get worse. For the reasons given however any worsening cannot be due to service. The reasons for limitation and finality are as explained. There are no grounds to review this final limited assessment."

 

13. On 6 August 2009, the operational caseworker sent a decision letter to the claimant in the following terms:

 

"I am writing to you regarding your Application for a Review claim form which was received on the 22 ^nd July 2009.

 

As you are aware, we notified you on the 15 ^th February 2000 that you had been awarded an assessment of 1-5% for Spondylolysis L4 which had been accepted as aggravated by service. This means that your condition had been accepted on the basis that it was made worse by service, but not that it was entirely due to service. The assessment took into account the disablement you had when your service ended on 15/04/1997 including any disablement you had before your service. You were also informed that 'If, at a later date, there has been further worsening due, not to the continuing effects of service, but to the natural progress of the condition or other things which have happened since your service ended, the terms of the Service Pensions Order cannot take it into account. Our doctors have informed us that since your discharge from service there has been [no] worsening because of the natural progress of your condition.'

 

The Secretary of State considers there are no grounds to review this assessment.

 

Please do not hesitate to contact our office if you require any further information."

 

We observe that the word "no", which we have put in square brackets, did not in fact appear in the notice of decision sent on 15 February 2000 (see [9] above).

 

14. Although, consistently with the Secretary of State's case before us, the claimant had not been told he had a right of appeal, he did lodge an informal appeal, received on 13 August 2009, quickly followed by a formal appeal, received on 21 August 2009.

 

15. On 14 September 2009, the Secretary of State made a written application to the First-tier Tribunal, asking it to strike the appeal out under rule 8(2)(a) of the Tribunal Procedure (First-tier Tribunal) (War Pensions and Armed Forces Compensation Chamber) Rules 2008 (SI 2008/2686) on the ground that the tribunal had no jurisdiction to hear it because there was no right of appeal against a decision of the Secretary of State refusing to review an earlier decision. The case was listed for hearing before the Chamber President, Judge Bano, with another case that was subsequently withdrawn. Having heard legal argument on both sides - Ms Broadfoot and Mr Lyons being the advocates as they were before us - Judge Bano dismissed the application on 21 December 2010 and subsequently, on 15 March 2011, granted the Secretary of State permission to appeal to the Upper Tribunal.

 

16. The President of the Administrative Appeals Chamber of the Upper Tribunal, Walker J, directed that the appeal be heard by a panel of three judges and a hearing took place on 1 August 2011. It was not possible to conclude the hearing on that day but, in the light of what the Upper Tribunal was told about the Secretary of State's reasoning on the merits of the case, it was suggested that the claimant might consider making an application for judicial review of the decision of 6 August 2009, which could then be transferred from the High Court to the Upper Tribunal to be heard with the appeal, in case the appeal was successful and judicial review was held to be the only way of challenging the Secretary of State's decision. That suggestion was adopted but unfortunately made it impossible to continue the hearing of the appeal on 13 October 2011, as had been planned. The judicial review claim form was lodged on 11 November 2011 and, on 21 November 2011, Walker J ordered that the case be transferred to the Upper Tribunal. Unfortunately, the next date fixed for the hearing had to be vacated due to illness. The hearing before us continued on 6 March 2012. We regret the delay that there has been since then.

 

The legislation

 

17. The 1983 Order in force when the claimant made his initial claim has been replaced by the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 2006 (SI 2006/606) with effect from 10 April 2006. Because the provisions of the two Orders relevant to this case are not materially different and because article 71(5) of the 2006 Order provides that "[a]nything done or begun under a provision of the Service Pensions Order 1983 which has been re-enacted under this Order shall be treated as having been done or begun under the corresponding provision of this Order", it is necessary to consider only the later Order. As was the 1983 Order, it is made in the form of an Order in Council, pursuant to section 12(1) of the Social Security (Miscellaneous Provisions) Act 1977, under prerogative powers exercised, in relation to those who have served in the Army, under section 2 of the Pensions and Yeomanry Pay Act 1884. Before 1978, when the 1977 Act came into force, provision for service pensions in respect of those who had formerly served in the Army had been made in royal warrants issued under those prerogative powers.

 

18. Articles 6 and 7, within Part II of the 2006 Order, make provision for the award of a disablement pension or disablement gratuity at rates that depend on the degree of disablement. Part IV of the Order provides for the making of claims and Part V provides for adjudication. Within Part V, the provisions most relevant to the present case are in the following terms:

 

" Entitlement where a claim is made in respect of a disablement, or death occurs, not later than 7 years after the termination of service

 

40. - (1) Except where paragraph (2) applies, where, not later than 7 years after 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 purposes of this Order provided it is certified that -

 

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

 

(i) is attributable to service, or

 

(ii) existed before or arose during service and has been and remains aggravated thereby; or

 

(b) ....

...

 

Determination of degree of disablement

 

42. - (1) ...

 

(2) Subject to the following provisions of this article -

 

(a) the degree of the disablement due to service of a member of the armed forces shall be assessed by making a comparison between the condition of the member as so disabled and the condition of a normal healthy person of the same age and sex, without taking into account the earning capacity of the member in his disabled condition in his own or any other specific trade or occupation, and without taking into account the effect of any individual factors or extraneous circumstances;

 

(b) for the purpose of assessing the degree of disablement due to an injury which existed before or arose during service and has been and remains aggravated thereby -

 

(i) in assessing the degree of disablement existing at the date of the termination of the service of the member, account shall be taken of the total disablement due to that injury and existing at that date, and

 

(ii) in assessing the degree of disablement existing at any date subsequent to the date of the termination of his service, any increase in the degree of disablement which has occurred since the said date of termination shall only be taken into account in so far as that increase is due to the aggravation by service of that injury;

 

(c) where such disablement is due to more than one injury, a composite assessment of the degree of disablement shall be made by reference to the combined effect of all such injuries;

 

(d) the degree of disablement shall be assessed on an interim basis unless the member's condition permits a final assessment of the extent, if any, of that disablement.

....

 

(14) The degree of disablement certified under this article shall be the degree of disablement for the purposes of any award made under this Order.

 

Certification

 

43. Where any matter is required by this Order to be certified, that matter shall be determined -

 

(a) where a Tribunal constituted under ... the Pensions Appeal Tribunals Act 1943 has given a decision on that matter under those Acts, in accordance with that decision, or, if an appeal from that decision is brought under those Acts, in accordance with the decision on that appeal;

 

(b) where no such decision has been given and the matter involves a medical question -

 

(i) in accordance with a certificate on that question of a medical officer or board of medical officers appointed or recognised by the Secretary of State,

 

(ii) ..., or

 

(iii) where it appears to the Secretary of State that the medical question raises a serious doubt or difficulty and he so desires, in accordance with the opinion thereon obtained from one or more of a panel of independent medical experts nominated by the President of the Royal College of Physicians of London, the Royal College of Surgeons of England or the Royal College of Obstetricians and Gynaecologists.

 

Review of decisions, assessments and awards

 

44. - (1) Subject to the provisions of paragraphs (3), (4) and (5) and to the provisions of paragraph (8) -

 

(a) any decision accepting or rejecting a claim for pension; or

 

(b) any assessment of the degree of disablement of a member of the armed forces; or

 

(c) any final decision that there is no disablement or that the disablement has come to an end

 

may be reviewed by the Secretary of State at any time on any ground.

 

(2) Subject to the provisions of paragraphs (4), (5), (8) and (9), any award under this Order may be reviewed by the Secretary of State at any time if the Secretary of State is satisfied that -

 

(a) the award was made in consequence of ignorance of, or a mistake as to, a material fact, or of a mistake as to the law;

 

(b) there has been any relevant change of circumstances since the award was made;

 

(c) the award was based on a decision or assessment to which paragraph (1) of this article applies, and that decision or assessment has been revised.

 

(3) Any assessment or decision made, given or upheld by the Pensions Appeal Tribunal under ... the Pensions Appeal Tribunals Act 1943 may be reviewed by the Secretary of State at any time if the Secretary of State is satisfied that there has been a relevant change of circumstances since the assessment or decision was made, including any improvement or deterioration in the disablement in respect of which the assessment was made.

 

(4) Subject to the provisions of paragraph (9), following a review under paragraph (1) of any decision accepting a claim for pension or any assessment of the degree of disablement of a member of the armed forces, that decision or assessment may be revised by the Secretary of State to the detriment of a member of the armed forces only where the Secretary of State is satisfied that -

 

(a) the decision or assessment was given or made in consequence of ignorance of, or a mistake as to, a material fact, or of a mistake as to the law; or

 

(b) in the case of a decision accepting a claim for pension -

 

(i) the decision was given after it had been certified pursuant to article 43(b)(i) that the member of the armed forces was suffering from a specified disablement ('the certified condition') which was attributable to, or aggravated by, his service, and

 

(ii) since the date of the decision it has been further certified, pursuant to article 43(b)(i), that the claimant was not, at the date of the earlier certification, suffering from the certified condition; or

 

(c) there has been a change in the degree of disablement due to service since the assessment was made.

 

(5) An award under this Order may be revised by the Secretary of State to the detriment of a member of the armed forces only where the Secretary of State is satisfied that -

 

(a) the award was made in consequence of ignorance of, or a mistake as to, a material fact, or of a mistake as to the law; or

 

(b) there has been any relevant change of circumstances since the award was made; or

 

(c) the decision or assessment upon which the award was based has been revised under paragraph (4).

 

(6) Subject to the provisions of paragraphs (4) and (5), on a review under this article, the Secretary of State may maintain or continue, vary or cancel the decision, assessment or award and any revised decision, assessment or award shall be such as may be appropriate having regard to the provisions of this Order.

 

..."

 

19. The Pensions Appeal Tribunals Act 1943 makes provision for appeals against decisions of the Secretary of State to be brought before the "appropriate tribunal", which is now the First-tier Tribunal in England and Wales and a Pensions Appeal Tribunal in Scotland or Northern Ireland. Sections 1, 4, 5 and 5A of the Act confer rights of appeal in respect of various types of decision made under the 2006 Order.

 

20. Section 1 makes provision for what are known as "entitlement" appeals. Section 4 provides for appeals against decisions to withhold or reduce awards on the ground of serious negligence or misconduct. Section 5(1) makes provision for appeals in respect of interim assessments of disablement. Section 5(2) makes provision for appeals in respect of final assessments of disablement and decisions that there is no disablement or disablement has come to an end. Section 5A provides for appeals against types of decision specified in regulations.

 

21. Section 5(2) is the provision relevant to this case, which involves a final assessment of disablement. It provides:

 

"(2) Where, in the case of any such claim as is referred to in section one, section two or section three of this Act in respect of the disablement of any person, it appears to the Minister that the circumstances of the case permit a final settlement of the question to what extent, if any, the said person is disabled, and accordingly -

 

(a) he decides that there is no disablement or that the disablement has come to an end or, in the case of any such claim as is referred to in section three of this Act, that the disablement is not or is no longer serious and prolonged ; or

 

(b) he makes a final assessment of the degree or nature of the disablement ;

 

he shall notify the claimant of the decision or assessment, stating that it is a final one, and thereupon an appeal shall lie to the appropriate tribunal on the following issues, namely -

 

(i) whether the circumstances of the case permit a final settlement of the question aforesaid;

 

(ii) whether the Minister's decision referred to in paragraph (a) hereof or, as the case may be, the final assessment of the degree or nature of the disablement, was right;

 

and the appropriate tribunal on any such appeal may set aside the said decision or assessment on the ground that the circumstances of the case do not permit of such a final settlement, or may uphold that decision or assessment, or may make such final assessment of the degree or nature of the disablement as they think proper, which may be either higher or lower than the Minister's assessment, if any and if the appropriate tribunal so set aside the Minister's decision or assessment they may, if they think fit, make such interim assessment of the degree or nature of the disablement, to be in force until such date not more than two years after the making of the appropriate tribunal's assessment, as they think proper."

 

22. Rule 8(2) and (3)(c) of the Tribunal Procedure (First-tier Tribunal) (War Pensions and Armed Forces Compensation Chamber) Rules 2008 (SI 2008/2686) provides:

 

"(2) The Tribunal must strike out the whole or a part of the proceedings if the Tribunal -

(a) does not have jurisdiction in relation to the proceedings or that part of them; and

 

(b) does not exercise its power under rule 5(3)(k)(i) (transfer to another court or tribunal) in relation to the proceedings or that part of them.

 

(3) The Tribunal may strike out the whole or a part of the proceedings if -

 

(a) ...;

(b) ...; or

(c) the Tribunal considers there is no reasonable prospect of the appellant's case, or part of it, succeeding."

 

23. Section 11 of the Tribunals, Courts and Enforcement Act 2007 provides that an appeal on a point of law to the Upper Tribunal lies against a decision of the First-tier Tribunal, including, as is now common ground before us, a decision as to whether or not to strike out an appeal brought before it (see LS v London Borough of Lambeth (HB) [2010] UKUT 461 (AAC); [2011] AACR 27).

 

The High Court decision in Hornsby

 

24. Both before the First-tier Tribunal and before us, Ms Broadfoot, for the Secretary of State, has relied on R (Secretary of State for Defence) v Pensions Appeal Tribunal [2008] EWHC 2168 (Admin), in which Underhill J found that there was no right of appeal against a decision refusing to review, under the predecessor of article 44(3) on the ground of change of circumstances, a final assessment of the degree of disablement resulting from bilateral noise-induced sensorineural hearing loss that had been upheld by a Pensions Appeal Tribunal.

 

25. The case was quite similar to the present one in that the claimant, Mr Hornsby, argued that further deterioration in his hearing was due to service, whereas the Secretary of State maintained that any post-service deterioration in hearing could not be due to service because exposure to the relevant harmful noise encountered in service had ended. The Secretary of State issued a decision that there were no grounds for reviewing the decision of the Pensions Appeal Tribunal. The claimant appealed and, as in the present case, the Secretary of State asked the Pensions Appeal Tribunal to find that it had no jurisdiction to hear the appeal, specifically arguing that a decision not to carry out a review was not a specified decision and so no right of appeal arose under section 5A of the 1943 Act.

 

26. The Pensions Appeal Tribunal held that it did have jurisdiction. It pointed out that it was not in dispute that there was a right of appeal (under section 5, although it did not refer to that provision) where there was a review but the decision being reviewed was maintained and it suggested that the word "review" was used inconsistently in the predecessor of article 44. It said that there needed to "be consistency in these matters", by which it appears to have meant in the way cases were determined and whether there was a right of appeal, and it concluded that "the VA must have reviewed the issue" in that case.

 

27. The Secretary of State challenged the Pensions Appeal Tribunal's decision, both by way of an appeal to a Social Security Commissioner under section 6A of the 1943 Act and then by way of an application for judicial review. The application for judicial review was necessary because, when the point was raised, the Secretary of State conceded that the right of appeal under section 6A was limited to final decisions and not decisions of the type made by the Pensions Appeal Tribunal. Mr Commissioner Mesher, as he then was, accepted that concession and held that he had no jurisdiction to entertain the appeal from the Pensions Appeal Tribunal (CAF/3923/2006). However, he raised, but did not determine, the question whether the Pensions Appeal Tribunal's decision had been to the effect that there had been a right of appeal to it under section 5 of the 1943 Act, rather than under section 5A.

 

28. On the application for judicial review, Underhill J had no difficulty in finding that there had been no right of appeal to the Pensions Appeal Tribunal under section 5A and, in doing so, he dealt with the Pensions Appeal Tribunal's reasoning and the points that had led Mr Commissioner Mesher to raise the question whether there had been a right of appeal under section 5. He said:

 

"25. First, it is said that the Veterans Agency had in the past acknowledged that there was a right of appeal against decisions taken on a review. That, however, is by itself entirely consistent with the Secretary of State's position. As Mr Lewis [counsel for the Secretary of State] submitted, it is necessary to distinguish between (a) 'the decision whether to undertake a review' - that is, in a case falling within article 67(2)(a), the decision whether there has been a relevant change of circumstances - and (b), if such a review is undertaken, the decision on that review. The latter would indeed be an appealable decision, but the former is not.

26. Secondly, it is said by the Tribunal that the term 'review' is used inconsistently within article 67. With respect, I cannot agree. So far as I can see, whenever the article speaks of 'review' it refers to the process of (re)considering the original decision, whether of the Secretary of State or the Tribunal. The decision at the end of that process is characterised as 'maintaining, continuing, varying or cancelling' the original decision (depending on the outcome): see paragraph 5. The term 'revised', which appears in paragraph 5 and also in paragraph 2(c) and to which the Tribunal refers, appears to be simply a compendious term to cover such a decision.

27. Thirdly, it is said by the Tribunal that someone must have made a decision - described by it as a decision 'that [Mr Hornsby's] evidence was insufficient to merit a change in the PAT decision' - which underlay the purported decision not to undertake a review; and that decision is in practice indistinguishable from a substantive decision not to vary the original decision of June 1999. In other words, though the Tribunal is too polite to put it this way, the Secretary of State is playing with words. Again, I do not agree. I can see a clear and real distinction between, on the one hand, the decision whether a relevant change of circumstances has been shown triggering a power (and, no doubt, in practice a right) of review, and, on the other hand, a decision on such review whether to maintain, continue, vary or cancel the original decision. One example given by Mr Lewis was where changes in medical understanding suggested a different aetiology for a particular condition than had previously been recognised: such a change would be a sufficient reason to justify a review, but it would remain for consideration whether in any individual case the claimant could establish that the new medical understanding impacted on his particular circumstances. Another example would be where a claimant discovered potentially relevant fresh evidence: the Secretary of State might well decide that that evidence merited the carrying out of a review in order to enable the evidence in question to be assessed, but the eventual substantive decision would depend on an assessment of the actual relevance and the reliability of the evidence in question. I accept that in some cases, of which this may well be a good example, there might be a degree of overlap between the considerations relevant to the threshold question, and, if a review were granted, the considerations relevant to the ultimate decision. But that does not mean that the two exercises are identical. The Secretary of State was in the present case clearly and explicitly deciding only that, because of his understanding of the medical impossibility of subsequent deterioration in hearing caused by the original injury, the fact that Mr Hornsby's hearing had deteriorated did not amount to a relevant change of circumstances.

28. Mr Opperman and Mr Green [counsel for the claimant] in their skeleton argument on behalf of Mr Hornsby, succinctly and helpfully developed orally by Mr Opperman, made three broad submissions which are put as follows:

'(1) The Pensions Appeal Tribunal did in fact have jurisdiction under statute to allow the appeal. (2) Although the PAT's decision stated that the disablement entitlement would not be reviewed, it was in fact reviewed. (3) The right to appeal can be construed as being part of the PAT's system.'

29. As to (1), I have largely dealt with this point. Mr Opperman and Mr Green submit that a refusal to review can be treated as a 'final assessment of the degree of the claimant's disablement' and so be appealable under section 5(2) of the 1943 Act. That was not, of course, the basis of the Tribunal's decision and, with respect, it seems to me unarguable.

30. As to (2), this is essentially the same point as that made by the Tribunal. Mr Opperman's submission was that the Secretary of State's letters were tantamount to a substantive fresh decision to maintain the original decision of the Pensions Appeal Tribunal. I have already rejected that submission. He submitted that it was remarkable that no evidence had been adduced in the form of a witness statement from the author of those letters supporting the construction which the Secretary of State put on what had occurred. In my view, such evidence was wholly unnecessary; the letters in question speak for themselves.

31. As to (3), this is perhaps slightly oddly expressed, but Mr Opperman's point before me was that the decision whether to allow a review in circumstances such as Mr Hornsby's was an important decision and that it was most improbable that Parliament could have intended that claimants in his position should not have a right of appeal in relation to such a decision. I can, however, see nothing surprising in a construction of the statute which has the result contended for by Mr Lewis. It is easy to see why the draftsman might have wished to avoid a situation where a disappointed claimant could invoke an absolute right of appeal simply by seeking a review, or indeed (as it might be) by repeated requests for a review. There is nothing outlandish in a threshold being provided for of the applicability of which the Secretary of State is the only judge. That is indeed, as is well‑known, the position with purported 'fresh claims' under rule 353 of the Immigration Rules. The Secretary of State's decisions taken in that context must, of course, be fair and rational and they will be susceptible to judicial review if they are not. Mr Opperman says that it is unlikely that Parliament intended claimants to have to go to the trouble and expense of proceedings for judicial review when there was an obvious alternative route for challenging such decisions, namely by appeal to the Tribunal. But the plain fact is that that is precisely the effect of the provisions that Parliament has enacted. As I say, I can see nothing particularly surprising in that result."

 

The reasoning of the First-tier Tribunal in this case

 

29. At an early stage in the proceedings before the First-tier Tribunal, Judge Bano raised the question whether Underhill J's reasoning in Hornsby was consistent with the decision of the Court of Appeal in Wood v Secretary of State for Work and Pensions [2003] EWCA Civ 53 (reported as R(DLA) 1/03), to which Underhill J was apparently not referred. The practical issue that arose in Wood was the same as in Hornsby and the present case. Under section 10 of the Social Security Act 1998, the Secretary of State has a power to "supersede" decisions in prescribed cases and circumstances. Section 12 provides for appeals against certain decisions, including "a decision [under section 10] superseding" any such decision. The question that was considered in Wood was whether a decision that the prescribed criteria for making a decision under section 10 were not satisfied was "a decision superseding" an earlier decision, so that there was a right of appeal against it. The Secretary of State for Work and Pensions accepted that there was a right of appeal in such cases, except where an application for supersession did not even invoke any of the prescribed criteria for the making of a decision under section 10 and, indeed, that by reason of Article 6(1) of the European Convention on Human Rights, there had to be a right of appeal to an independent tribunal. The Court of Appeal agreed that there was a right of appeal in such cases but the judges were divided in their reasoning. Dyson LJ said, at [75] :

 

"75. I agree that section 12(9) must be construed so as to give a right of appeal from the rejection by the Secretary of State of a properly constituted application for a decision under section 10. This is required by Article 6(1) of the European Convention on Human Rights, and/or because it cannot have been rationally intended by Parliament to give a right of appeal where a properly constituted application results in a decision to alter an earlier decision (where the applicant wishes to challenge the extent of the alteration), but not to confer a right of appeal where the Secretary of State refuses to alter an earlier decision altogether."

 

30. In his decision, Judge Bano recognised that the statutory context in which Wood was decided was different from that in the service pensions scheme, but he nonetheless considered the Court of Appeal's decision important because the Court was unanimous in holding that all refusals to supersede an earlier decision should carry appeal rights, even though the judges differed with regard to the way in which that result was to be achieved. He rejected the submission by Ms Broadfoot that judicial review would be an adequate remedy for the purposes of Article 6 of the European Convention on Human Rights if there were no right of appeal. He then accepted the argument advanced by Mr Lyons that the obiter dicta in Hornsby at [31] , to the effect that there is nothing outlandish in a threshold being provided for of which the Secretary of State is the only judge, could not be reconciled with what Dyson LJ had said in Wood. Judge Bano said:

 

"33. Once a decision has been made in accordance with Article 44(6) of the 2006 Order, there seems to me to be no reason why it should not carry appeal rights under section 1 or section 5 of the 1943 Act, according to whether it is an entitlement or an assessment decision. ...

 

34. Article 44(6) applies to both the review powers which require a review ground to be established (Articles 44(2) and (3)), and to Article 44(1), where there is no such requirement. Consistently with the approach taken by all the members of the court in Wood, it seems to me therefore that the words 'maintain or continue...the decision, assessment or award...' must cover any refusal to alter a previous decision, whether the reason for the refusal is because any necessary review grounds have not been established, or because the Secretary of State considers that the original decision remains correct. In Wood Dyson LJ considered that it cannot have been rationally intended to give a right of appeal where a properly constituted application results in a decision to alter a previous decision, but not to confer a right of appeal where the Secretary of State refuses to alter the earlier decision. That observation seems to me to apply with even greater force where the distinction which is sought to be maintained is the even narrower one between on the one hand a refusal to undertake a review, and on the other hand a decision not to alter a previous decision after a review has been carried out. In Mr C's case the Secretary of State expressed his decision as a refusal to undertake a review, even though the review application was actually referred to a medical adviser and rejected on medical grounds. I cannot accept that Mr C's appeal rights should depend on a distinction which I consider not only to be contrary to Article 6 of the Convention and irrational for the reasons which I have given, but which is also elusive to the point that it is unworkable in practice.

 

35. The conclusion which I have therefore reached is that, subject to a possible exception in respect of hopeless applications, the Secretary of State is bound to make a decision in accordance with the terms of Article 44(6) of the 2006 Order in every case where a properly constituted application for a review has been made under Article 44(1) or (2). I do not consider that it makes any practical difference whether the review grounds in Article 44 are threshold or outcome criteria, since in either case a refusal to undertake a review on the basis that the review grounds have not been made out will result in a decision under Article 44(6) to maintain or continue the previous decision, assessment or award. If, as in these cases, the Secretary of State refuses to carry out a review, his decision must be treated as a decision maintaining or continuing the original decision, and will accordingly carry rights of appeal under section 1 or 5 of the 1943 Act, as the case may be. I therefore decline to strike out the appeal in Mr C's case."

 

31. Judge Bano therefore found that there was a duty to make a decision under article 44(6), which it was common ground would be appealable, whenever a proper application for review was made. He avoided the need for the claimant to apply for judicial review of what would necessarily have been a wrongful failure to review on that analysis by holding that a refusal to review when a proper application for review had been made should be treated as a decision maintaining the original decision.

 

The issues arising in these proceedings

 

32. The case as first argued in the First-tier Tribunal raised simply the question whether there was a right of appeal against a refusal to review. The Secretary of State submits that there is not, whereas the claimant submits that there is. Judge Bano's decision raises the additional question whether, on a claimant's application for a review, the Secretary of State is entitled to refuse to review the challenged decision. However, the primary argument advanced on behalf of the claimant does not rely on Judge' Bano's analysis; rather, it is accepted that the Secretary of State is entitled to refuse to review a decision. It is accepted by both parties that we are not bound by Hornsby, although we should follow it if not satisfied that it was wrongly decided ( Secretary of State for Justice v RB [2010] UKUT 454 (AAC); [2012] AACR 31, subsequently reversed by the Court of Appeal but without reference to this point). Ultimately, therefore, this case turns simply on the construction of article 44 of the 2006 Order, concerned with reviews, and sections 1, 4, 5 and 5A of the 1943 Act, concerned with appeals, and the relationship between those provisions. However, we first consider arguments addressed to us about the Secretary of State's decision-making process.

 

The Secretary of State's decision-making process in this case

33. Setting aside for the moment challenges based on the scope of the power of review, the 2009 decision not to review the final assessment made in 2000 was criticised by Mr Lyons because the medical adviser referred to reasons given in the 2000 certificate when there were no reasons that expressly addressed the question whether any further deterioration might be due to service. On a literal reading, we accept that the reasoning in that certificate - or, at any rate, contemporaneous with the certificate - applied to the deterioration then in issue and not to any future deterioration. However, the certifying doctor then went on to make, or to advise making, the assessment final and "limited" and in our judgement it is clearly implicit that he considered that the reasoning that applied to the deterioration there had been before the certificate was issued would also apply to any further deterioration.

 

34. Mr Lyons also submitted that the medical adviser placed too much weight on the limitation certificate. Unlike finality, which is a statutory concept under article 42(2)(d) of the 2006 Order that is recognised in section 5(2) of the 1943 Act, "limitation" is a non-statutory concept. It is used in "aggravation" cases where it is expected that any future post-service deterioration will not be due to the accepted aggravation, so that it will not fall within article 42(2)(b)(ii) and will not lead to an increase in the assessment. Where the relevant condition is the only condition in respect of which the assessment is made, it seems therefore to add nothing to finality. However, it applies to a specific condition and it may be applied to that condition where there is a composite interim assessment that includes other conditions. Importantly, it cannot act as a bar or fetter to any review and, indeed, the question whether the previous assessment should have been limited is open for reconsideration on a review as much as any other part of the assessment. We therefore agree with Ms Broadfoot that limitation is only a prediction and as such is not unlawful. It is useful merely as a device for drawing the attention of decision-makers and medical advisers to reasoning that is likely to be conclusive in future determinations. However, issuing a certificate of limitation has no legal effect.

 

35. In view of our decision on other issues, it is unnecessary for us to decide whether, in giving advice in 2009, the adviser simply applied the limitation certificate without thought or whether he did, properly, consider whether the reasoning behind it was still correct and still relevant. Moreover, Dr Anne Braidwood CBE, medical adviser to the Deputy Chief of Defence Staff (Personnel and Training), has made a witness statement in the judicial review proceedings, explaining why, in her view, post-service deterioration could not be a result of the service aggravation of the spondylolysis. It is therefore clear that, even after considering the matter more deeply, the Secretary of State does not wish to alter the 2009 decision.

 

36. However, it is important to note that the 2009 decision was made on medical grounds: the claimed medical impossibility of the post-service deterioration in the claimant's condition being due to the service aggravation of the spondylolysis.

 

37. It is also plain, as Mr Lyons submitted, that much of the reasoning behind the final assessment made in 2000 and the 2009 decision was not disclosed to the claimant at the time, although it is also true that he did not ask for fuller explanations of the decisions. The Secretary of State may wish to give some thought as to whether reasons given for decisions might not encourage acceptance of the decisions if they were more clearly related to the facts of the individual case and addressed the points raised by the claimant. We have noted above that the sentence, "Our doctors have informed us that since your discharge from service there has been worsening because of the natural progress of your condition", was used in 2000 and quoted in 2009 with the word "no" added. We are not aware of there having in fact been any medical advice about "worsening because of the natural progress of [the claimant's] condition", one way or the other. It was accepted in 2000 that there had been worsening but there was no definite medical advice that it was either due to the natural progress of the condition or was not due to it. It was merely suggested that it might have been due to post-service employment.

 

38. We accept Ms Broadfoot's submission that the mere fact that medical advice was taken in this case in 2009 does not necessarily lead to the conclusion that the Secretary of State did in fact review the assessment made in 2000. Whether he ought to have reviewed that assessment and whether it is necessary to treat him as having done so are matters we will consider below.

 

The construction of article 44

39. We turn then to the parties' arguments on the construction of article 44.

 

40. As to the relationship between article 44(1) and article 44(2), we accept Ms Broadfoot's submission that the application in the present case fell to be determined under article 44(1), rather than under article 44(2)(b) as Mr Lyons submitted. It is true that there was an existing award in this case and we accept Mr Lyons' submission that paragraph (2) was therefore in play. However, paragraph (2) only authorises the review of an "award", not any other form of decision. It is clear from the language of paragraph (2)(c) that, on an application for review of an award based on a decision or assessment within the scope of paragraph (1), the proper approach is for the Secretary of State first to review the underlying decision or assessment under paragraph (1) and then, if that decision or assessment is revised, to review, and if appropriate to revise, the award under paragraph (2)(c). In other words, the application for review must be treated as an application under both article 44(1) and under article 44(2)(c).

 

41. This approach is actually more favourable to claimants in most cases than is the approach suggested by Mr Lyons because, whereas paragraphs (2) and (3) require specific grounds to be shown if there is to be a review, paragraph (1) provides that a decision or assessment may be reviewed on "any ground", so that no specific ground need be shown. This assists claimants seeking reviews in their favour and, where the Secretary of State is contemplating making an adverse decision, paragraph (4)(a) and (c) gives claimants protection equivalent to that provided by paragraph (2)(a) and (b), except in the case of those entitlement decisions to which paragraph (4)(b) applies.

 

42. As to the relationship between paragraphs (1) to (3) and paragraph (6), neither party supported Judge Bano's view that the Secretary of State is bound to make a decision under article 44(6) even if there are no grounds for review. That is not the natural meaning of the legislation and we do not agree with Judge Bano's construction. Paragraph (6) applies only "on review" and we do not consider that, where grounds for review are specified under paragraphs (2) or (3) and are not met in a particular case, a decision in that case can properly be made "on review". Only where the conditions for a review are satisfied may there be a decision under paragraph (6) to maintain or to revise (ie, to "continue [for a longer period], vary or cancel") the original decision or assessment.

 

43. On the other hand, we consider that the Secretary of State is bound to make a decision under paragraph (6) whenever a claimant applies for a review under paragraph (1).

 

44. The Secretary of State's approach to what amounts to a ground of review under article 44 is revealed in the witness statement of the Officer in Charge of the Procedural and Legislative Guidance Team of the Service Personnel and Veterans Agency, submitted in the judicial review proceedings before us. She says:

 

"9. While Art 44 sets out the Secretary of State's powers on review, it does not define what constitutes 'grounds for review'. It is necessary for the WPS to have a policy about what will constitute 'grounds for review'. In the late 1990s the volume of reviews was enormous often resulting in the repeated re-adjudication of what were often essentially the same contentions as had originally been presented at the time of first claim. It was therefore decided that the Secretary of State's usual policy would be that claimants should produce some kind of independent evidence when requesting a review (although of course the Secretary of State retained the discretion to depart from that policy in any given case). That policy was published in 1998 .... Following advice initially given in 2000 that it would be wrong for a caseworker to refuse to review solely on the basis that no evidence had been provided, the policy was changed in 2003/4. Accordingly the 1998 policy was not the operative policy at the time of the decision that there were no grounds for a review in this case and nor have I seen any evidence that this was the approach taken in this case.

 

10. From the policy change in 2003/4 the intended policy of the Secretary of State was that a review would be conducted where something had been raised by the claimant which had the potential to change an existing decision even if the claimant had not produced any evidence at the time he made his application for review. The focus was (and remains) on whether the claimant has raised something which has the potential to change a previous decision. It is right to record that the new policy has not been formalised in a final policy statement (though draft versions were in circulation from 2003) and, also, that there was a period after the introduction of the new policy when the change of policy was still bedding down with staff. ..."

 

45. We observe that the 1998 policy can be seen in the decision issued on 15 February 2000 in the present case, which included the following sentence:

 

"We will normally require you to provide evidence to show there are grounds for us to review your assessment if you want us to look at it again."

 

46. In our judgement, the whole approach revealed in that witness statement is misconceived. It is not for the Secretary of State, or any Agency through whom he works, "to have a policy about what will constitute 'grounds for review'". What can constitute a ground for review is a question of law which, contrary to what is asserted in paragraph 9 of the witness statement, is to be answered through interpretation of article 44(1) to (3).

 

47. Ms Broadfoot, of course, advanced a proper legal argument. She submitted that there is implicit in the apparent requirement that there be a ground, albeit "any ground", for a review under paragraph (1), that the ground must be one which, as it is put in the witness statement, has "the potential to change [the] existing decision". Indeed, it could perhaps be argued that there is a similar additional threshold under paragraphs (2)(a) and (b) and (3). In Hornsby, it was held that the Secretary of State was entitled to find that there was no "relevant" change of circumstances justifying a review if he was satisfied that it was medically impossible that post-service deterioration in the claimant's loss of hearing was due to service. In Saker v Secretary of State for Social Services (reported as an appendix to R(I) 2/88), which was not cited to us but which concerned a review of an assessment of disablement in an industrial injuries case on the ground of ignorance of a material fact, it was held that a fact was "material" if it "would have influenced the judgment of the medical board", although not necessarily affecting the result, ( per Lloyd LJ) or "would have called for serious consideration by the board and might well have affected its decision" ( per Nicholls LJ).

 

48. It may be that the Secretary of State does not review decisions when acting of his own motion unless he is minded to revise them or has new material calling for serious consideration. However, paragraphs (1) to (3) do not merely prescribe circumstances in which a broad prerogative power of review may be exercised. They confer statutory powers of review and prescribe the grounds upon which they may be exercised, implicitly excluding any other power of review. Moreover, although cast in terms of powers to review, they must, as Underhill J recognised in Hornsby at [27], in practice confer rights on claimants, with concomitant duties on the Secretary of State. Unless the purpose of the legislation is to be frustrated, the Secretary of State must, in our judgment, review a decision if a claimant has applied for a review and the statutory grounds for a review to the claimant's advantage are met. If any authority for this proposition is required, it may be found in Julius v Lord Bishop of Oxford (1880) 5 App Cas 214.

 

49. In these circumstances, we do not consider it right to read into article 44(1) to (3) any thresholds not explicitly identified. In Hornsby, the threshold identified by Underhill J was the simple condition that there be "a relevant change of circumstances", imposed by the predecessor of article 44(3). He did not suggest that there was any additional threshold - merely that the phrase was to be construed so that there was no "relevant" change of circumstances where the change of circumstances could not possibly lead to a revision. Similarly, Saker was concerned with the construction of an explicit threshold. It follows from our reading of the legislation that, if a claimant seeks a review to his or her advantage and any of the statutory grounds in paragraph (2) or, as the case may be, paragraph (3) is satisfied, there is an obligation on the Secretary of State to review the decision and decide whether to maintain or revise it under paragraph (6).

 

50. But, in relation to paragraph (1), which we observe is concerned with the types of decision or assessment in respect of which there have always been rights of appeal under sections 1 or 5 of the 1943 Act, no such grounds of review are required. In our judgement "any ground" (the term used since 1981 - see article 5 of the Naval, Military and Air Forces etc. (Disablement and Death) Service Pensions Amendment (No.2) Order 1981 (SI 1981/1672)) is used in contrast to specific grounds precisely so that the Secretary of State is not inhibited from giving the "right" decision by there being limited grounds for review. We do not consider that it implies any threshold. The Secretary of State need merely consider what decision it is "appropriate" to make under paragraph (6). It is therefore not necessary for a claimant seeking a review under paragraph (1) to do any more than articulate a view that the existing decision or assessment should be changed. Whether or not there is a good ground for changing the decision or assessment, or even an arguable ground, is material only to the question whether the decision or assessment should be maintained, rather than revised, under paragraph (6). Obviously a claimant can reasonably be expected to advance grounds for a revision of the decision or assessment if he or she wishes to persuade the Secretary of State to make a favourable decision, but the absence of an arguable ground for revision should lead to a decision to maintain the decision or assessment rather than a decision that there are no grounds for a review.

 

51. It does not seem to us that this approach to article 44(1) should cause any practical difficulties to the Secretary of State. If, as is said in this case, the ground upon which a claimant seeks a revised decision is hopeless, the review process can be correspondingly simple. Review does not involve any prescribed process. It is no more than looking again at a decision. How thorough that process must be depends on the circumstances. There is no statutory requirement for a claimant to be referred for a medical examination for the purposes of a review and if such an examination is plainly not necessary then there need be no examination. If a decision to maintain an assessment must be based on a new medical certificate, there is no reason why advice such as was given in the present case should not be issued in the form of a certificate. Thus, our approach does not require any more complicated procedure to be adopted than was in fact taken in the present case.

 

52. Ms Broadfoot submitted that the effect of such an approach was that there would be a right of appeal against any decision given on an application for review, which would drastically reduce the importance of time limits for appealing because a person could simply ask for a review under article 44(1) and trigger a new appealable decision. However, the power of review is there precisely to enable issues to be raised again so that errors are not perpetuated and account can be taken of changes of circumstances.

 

53. Moreover, it has to be remembered that, although the claimant in this case was awarded a gratuity, an assessment of the extent of disablement of 20 per cent or more results in a pension, paid by way of periodical payments, rather than a larger lump sum. Any award, or adjustment of an award, of a pension following a successful application for review is generally effective only from the date of the application for review (see paragraph 1 of Schedule 3 to the 2006 Order). This applies to the practical effect of reviews under article 44(1), through the operation of article 44(2)(c), and preserves the effect of an earlier decision until the date of the application for review.

 

54. Nor, for reasons we will now explain, does the approach we have taken to article 44(1) in fact make any difference to claimants' rights of appeal.

The relationship between article 44(6) and the 1943 Act

 

55. Sections 1, 4, 5 and 5A of the 1943 Act all provide for appeals. We focus on section 5(2) because the decision that the claimant wishes to have reviewed and revised in this case is a final assessment of the degree of disablement. Stripped of words not immediately relevant, section 5(2) provides:

 

"(2) Where, in the case of any such claim as is referred to in section one ... in respect of the disablement of any person, it appears to the Minister that the circumstances of the case permit a final settlement of the question to what extent, if any, the said person is disabled, and accordingly -

 

(a) ...; or

 

(b) he makes a final assessment of the degree ... of the disablement;

 

... an appeal shall lie to the appropriate tribunal on the following issues, namely -

 

(i) whether the circumstances of the case permit a final settlement of the question aforesaid;

 

(ii) whether ... the final assessment of the degree ... of the disablement, was right;

...."

 

56. There is no reference in the 1943 Act to appeals against decisions made on applications for review. Our researches suggest that this is probably because the only power of review mentioned in the royal warrant in force at the time the Act was passed was a power to make a review decision adverse to the claimant (compare article 3A of the Royal Warrant of 12 January 1943 (Cmd 6419) with article 67 of the Royal Warrant of 4 December 1943 (Cmd 6489)). In any event, it is necessary to construe the Act without the aid of any provision expressly referring to reviews.

 

57. It is common ground that any decision to revise under article 44(6) a decision, assessment or award that could have been the subject of an appeal under the 1943 Act must result in a new decision, assessment or award that is also appealable under the 1943 Act. This is clearly right both on a literal reading of the 1943 Act and because it accords with common sense. It would be very odd if there were a right of appeal against an original decision but not against a revised decision.

 

58. It is also common ground between the parties that any decision to "maintain" under article 44(6) such a decision, assessment or award is also appealable. This requires that article 44(6) or the 1943 Act be given a strained reading, because it requires a maintained decision, assessment or award to be treated as a new decision, assessment or award. It could be regarded as not strictly accurate, for instance, to say that the Secretary of State "makes a final assessment" when merely maintaining an earlier final assessment. However, that is how article 44(6) and section 5(2) must be read together if the Secretary of State's concession on this point is to be accepted, because a decision to maintain a final assessment is no more a specified decision appealable under section 5A than is a decision that there are no grounds for review and so the right of appeal can arise only under section 5(2). The element of strain involved in that reading is slight.

 

59. We accept that the provisions must be read as the parties suggest because, as Dyson LJ said in Wood, it is not rational to make provision for a system of adjudication that confers a right of appeal where a properly constituted application results in a decision to alter an earlier decision to a limited extent, but not to confer a right of appeal where the Secretary of State refuses to alter an earlier decision at all. Therefore, for the purposes of section 5(2), the Secretary of State must be taken to make a final assessment when he maintains one. A similarly strained construction of the relevant provisions is required for there to be rights of appeal against decisions to maintain decisions within the scope of sections 1, 4, 5(1) and 5A. (We note that it has been found necessary to give the 1943 Act a strained construction in at least one other context: see Commissioner's decision R(AF) 1/07 at paragraph 32 and the decisions of the nominated judges referred to there. The need to construe those apparently precisely drafted provisions so as not to exclude cases plainly falling within their purpose has been recognised, if not always explicitly, almost from the outset.)

 

60. It then follows from our construction of article 44 that there is a right of appeal against any decision properly given on an application for review under article 44(1), since we have decided that any such application must always lead to a decision under article 44(6). This provides one ground for dismissing the present appeal. Although the decision of 6 August 2009 was put in terms of there being no ground for reviewing the assessment made in 2000, it can be treated as a decision under article 44(6) to maintain the assessment. That is what Judge Bano did in the present case and Ms Broadfoot accepted that that was a legitimate pragmatic approach in the context of this particular case if, contrary to her submissions, the Secretary of State should have reviewed the assessment.

 

The relationship between article 44(1) to (3) and the 1943 Act

 

61. But Mr Lyons' principal submission was that it was unnecessary for us to take that route. We consider that, in case we are wrong about article 44(1) and in order to give practical guidance for the future, we should deal with the wider issue argued before us as to whether there is a right of appeal against a decision that there are no grounds for review. The Secretary of State needs to know whether, when he makes a decision in those terms, he should inform the claimant that he or she has a right of appeal.

 

62. Mr Lyons submitted that Judge Bano was right to hold that there is no practical difference between the maintenance of an assessment on review and a decision that there are no grounds for review and he further submitted that the strained construction necessary even on what the Secretary of State concedes is the right approach is just as apt to include a decision that there are no grounds for review as it is to include the maintenance of an assessment on review. In other words, the Secretary of State should be taken to make a final assessment not only when he maintains such an assessment but also when he decides that there are no grounds for a review of such an assessment.

 

63. Ms Broadfoot, on the other hand, submitted that there is a great deal of difference between the maintenance of an assessment on review and a decision that there are no grounds for review. She relied on the reasoning of Underhill J in Hornsby and submitted that Judge Bano erred in holding that distinguishing between a decision whether to undertake a review and a decision on a review was irrational and in holding that the distinction between a decision whether to review and a decision on a review was elusive to the point of being unworkable.

 

64. We respectfully consider that, at [29] and [30] of his judgment, Underhill J too quickly rejected the arguments that a right of appeal lay under section 5 and that it was significant that there was a substantial amount of overlap between the issues arising on the question whether the threshold was met and the question what decision it is appropriate to make under paragraph (6). (It appears that he may have been looking only at the incomplete typed version of the Pensions Appeal Tribunal's decision, whereas the manuscript version showed that it had relied on section 5 (albeit without mentioning that section by number) despite having been provided with a printed form referring to section 5A on which to record its reasons.)

 

65. We acknowledge that, as Underhill J observed at [31] of his judgment, rule 353 of the Immigration Rules provides an example of a threshold where it is for the relevant Secretary of State to judge whether it is necessary for her to make an appealable decision. However, as we pointed out in the course of argument, an analogy closer to article 44 lies in the similar provisions for review in the main social security system, including the industrial injuries scheme which was closely modelled on the service pensions scheme. There, in every relevant statute from the National Insurance Acts of 1946 to the Social Security Administration Act 1992, Part II of which was replaced by the 1998 Act in issue in Wood, it was expressly provided that there was the same right of appeal against a refusal to review as there was against a decision given on review. This may partly explain why, in Wood, it was unthinkable to the Secretary of State that there should be no right of appeal in respect of refusals to supersede. In any event, the precedent of the social security system is sufficient to show that the mere fact that article 44 makes provision for what may be regarded as threshold conditions for reviews, at least for cases determined under paragraphs (2) or (3), is not a conclusive sign of an intention that there should be no right of appeal against a decision that there are no grounds for review. In some contexts, there is no right of appeal against a decision that a threshold decision is not met and, in others, there is a right of appeal.

 

66. It follows that there is nothing in the language of article 44 to suggest that a decision that there were no grounds for review was intended to be unappealable. Thus, while it may in principle be rational to draw a distinction between a decision whether to review and a decision on review, the question in the present case is simply whether there is any reason to do so in this particular context and in particular in the light of the terms of section 5 of the 1943 Act.

 

67. From the point of view of a claimant, the distinction is certainly not important. A claimant only seeks a review because he or she also seeks a revision. An application for review is thus equally unsuccessful from the claimant's point of view whether it is decided that there are no grounds for review or whether the original decision is reviewed but maintained.

 

68. Moreover, while the distinction for which the Secretary of State contends is conceptually clear, we agree with Judge Bano that it is often elusive in practice in the present context. There are many cases where it is difficult to decide whether a fact is material in the Saker sense or whether a change of circumstances is relevant in the Hornsby sense and where the Secretary of State could equally reasonably decide either that there were no grounds for review on the basis of ignorance or mistake of material fact or relevant change of circumstances or that there were grounds for review on such a basis but that the relevant decision should be maintained. Even if the distinction is workable, it seems thoroughly undesirable that a right of appeal should turn on the form in which the Secretary of State chooses to make a decision in such borderline cases. The truth is that any case that turns on whether a fact is possibly material or a circumstance is possibly relevant involves an element of looking again at the existing decision and confirming that it is correct, even if, in the light of Saker and Hornsby, it may not require a review.

 

69. The social security system recognised that difficulty because the effect of there being a right of appeal against a refusal to review was that the question whether a decision should be reviewed and, if so, whether it should be revised was treated as a single composite question. The distinction between a refusal to review and maintaining a decision on review was of no practical consequence save in the way a decision, and any reasons for it, were expressed. In Saker itself, the point about the scope of review, which was taken by the Court of Appeal in the course of argument, was not important to the result of the case. The claimant succeeded only because the medical appeal tribunal's reasoning was inadequate in that it failed to explain why fresh evidence had not led to an increased assessment.

 

70. Ms Broadfoot stressed that judicial review would be available to correct errors if there were no right of appeal, but we do not consider that to be an appropriate mechanism for correcting all types of errors. Both the present case and Hornsby are cases where the decision that there were no grounds for review was based on medical considerations. Medical issues can arise in all sorts of cases, not just in assessment cases, which is why there is always a medically-qualified member of an appropriate tribunal. Even if, as Ms Broadfoot argued it would in order to comply with the European Convention on Human Rights, the Administrative Court were prepared to descend to determining issues of medical opinion as well as points of law, the claimant would have to obtain expert medical evidence to contradict the Secretary of State's evidence, since the Court does not usually have its own medical expertise. However, that would be tantamount to requiring the claimant to produce evidence in order to satisfy a threshold condition, which, it appears from the witness statement from which we have quoted in [44] above, the Secretary of State rightly accepts is unlawful.

 

71. The whole scheme of adjudication under the 2006 Order is predicated upon the idea that the claimant merely has to make a claim and explain his circumstances and it is for the Secretary of State to arrange any necessary examination and obtain any necessary medical evidence under article 43(b). A claimant may, if he or she wishes, provide further evidence but, in the absence of a statutory requirement to produce fresh evidence - which there has been in the past in both the industrial injuries scheme and the service pensions scheme - there is no obligation to do so. Moreover, the whole point of having a medically-qualified member on the appropriate tribunal is that it makes it unnecessary for the claimant to produce medical evidence in opposition to the Secretary of State if he or she wishes to challenge a decision. He or she can simply obtain a second opinion from the tribunal. That proceedings before the appropriate tribunal are intended to be investigatory rather than adversarial and that the tribunal may use its own expertise is clear from Diplock J's well-known dictum in R v Medical Appeal Tribunal (North Midland Region), ex parte Hubble [1958] 2 QB 228 at 240-1, explaining the role of medical appeal tribunals in the industrial injuries scheme. Indeed, rule 24 of the 2008 Rules makes express provision for the First-tier Tribunal to arrange its own medical examination or obtain its own expert evidence.

 

72. In the present case, the claimant does not accept the Secretary of State's medical evidence and wishes the medically-qualified member of the tribunal to consider whether he is substantially more disabled now than he would have been had he not served in the Army. By itself, Dr Braidwood's evidence makes out a cogent case that any disablement not taken into account in the assessment made in 2000 cannot be due to the accepted aggravation, but we are not medically qualified and it is impossible for us, as it would be for the Administrative Court, to say whether or not another doctor, having taken a detailed history of the development of the condition and the claimant's activities both in service and after discharge from the Army, might take a different view. Could it be arguable that the claimant's post-service deterioration would not have been as great, or have occurred so soon, had there not been aggravation of the underlying condition while in service? Or could it be arguable that an increased assessment is justified because the impact of the disablement due to the service aggravation has become greater by reason of interaction with the deterioration falling outside article 42(2)(b)(ii)? The suggestion that the Secretary of State may make on medical grounds some decisions in respect of assessments that can be challenged only in the Administrative Court and not by an appeal to an appropriate tribunal seems to us to be completely inconsistent with the general scheme of adjudication.

 

73. All these points militate against drawing a distinction for the purpose of section 5(2) of the 1943 Act between decisions under article 44(6) to maintain an assessment and decisions that there are no grounds for review.

 

74. The only real argument of policy in favour of drawing the distinction that Ms Broadfoot has been able to advance is the argument to which we have already referred that allowing a claimant to trigger another appealable decision simply by applying for a review undermines the time limit for appeals. We have already pointed out that reviews are designed precisely to correct errors in earlier decisions and take account of changes of circumstances and that the limits to the power to backdate adjustments made on review provides appropriate protection for decisions. We also observe that the general social security system seems to survive notwithstanding that there is always a right of appeal against a refusal to supersede a decision.

 

75. Given the practical difficulties with the Secretary of State's position in the present context, we would require a very clear indication in the language of the legislation before accepting it. In the absence of any such indication, we accept Mr Lyons' submission that the legislation is to be construed so that a claimant not only has a right of appeal against a decision under article 44(6) to maintain a final assessment of the extent of disablement but also has a right of appeal against a decision that there are no grounds for review of such a final assessment. Such a decision can properly be regarded as amounting to the making of an assessment for the purpose of section 5(2) of the 1943 Act. The reasoning would also apply where it is decided that there are no grounds for the review of decisions within the scope of sections 1, 4, 5(1) or 5A of the 1943 Act. That does not involve any reading of the legislation that is substantially more strained than that identified in [58] to [60] above. Indeed, it does not involve any additional strain at all in those cases where, in the light of Saker or Hornsby, there are considered to be no grounds of review because a fact could not possibly be material or a change of circumstances could not possibly be relevant.

 

76. The limited additional strain that there is in other cases - where the issue is whether there was ignorance of, or a mistake as to, a fact or whether there has been any change of circumstances - seems to us to be justified because it avoids what we respectfully consider to be a difficulty inherent in Mr Justice Walker's approach, which is that it would not always be immediately obvious whether there was a right of appeal against a decision that there were no grounds for a review under article 44(2) or (3) and that the existence of a right of appeal might turn on aspects of the decision-making process of which the claimant was unaware. We do not consider that that can have been intended. Accepting Mr Lyons' submission has the effect that there is always a right of appeal against a decision that there are no grounds for review and, indeed, against any decision under article 44. That is a simple rule to apply.

 

77. Insofar as it decided the contrary, we respectfully conclude that Hornsby was wrongly decided and, since this is a decision of a three-judge panel, should no longer be followed. We make two further observations as to the effect of our approach.

 

78. First, just as a decision to make an assessment final is not a separate decision but is part of the assessment, so too the decisions whether to review an earlier decision or assessment and, if so, whether to revise it should be regarded as a single composite decision, as is the position in the general social security system. The appropriate tribunal stands in the shoes of the Secretary of State on any appeal and so has before it the same composite decision. As we have explained above, a decision that there are no grounds for review should not be made on an application under article 44(1) so that the possibility of an appeal against a decision that there are no grounds for review should arise only on an application for a review under article 44(2) or (3). On such an appeal, the appropriate tribunal may, if it is satisfied that there are grounds for review, go straight on to decide what decision to give under article 44(6). Moreover, where the Secretary of State has reviewed a decision under article 44(2) or (3) and the claimant has appealed against the decision on review, the appropriate tribunal must consider whether, on its findings, the grounds for review were in fact made out. If they are not, it should issue a decision in terms of a refusal to review rather than a decision under article 44(6). The appropriate tribunal has no more power to revise a decision when statutory grounds for review have not been shown than has the Secretary of State.

 

79. Secondly, where an appeal in England and Wales against a decision that there are no grounds of review appears hopeless, it is open to the Secretary of State to apply to the First-tier Tribunal to have the appeal struck out under rule 8(3)(c) of the 2008 Rules on the ground that there is no reasonable prospect of the appeal succeeding. Since a decision whether or not to strike out a case is made by a judge sitting alone, such an application may not be appropriate if it turns on medical issues. An application might, however, be made where, for instance, an appeal is brought against a decision that there are no grounds for a review under article 44(3) and it is clear that the claimant does not allege any change of circumstances since the material decision of the First-tier Tribunal but merely asserts its decision was wrong. Regrettably, it appears currently not to be possible to make such an application in Scotland or Northern Ireland.

 

Article 6(1) of the European Convention on Human Rights

 

80. Among the grounds of appeal, it was submitted that Judge Bano erred in relying on Article 6(1) of the European Convention on Human Rights. We ourselves gain no assistance from Article 6(1).

 

81. Ms Broadfoot argued that a right of appeal against a refusal to review was not necessary, because judicial review provided an adequate remedy for Article 6(1) purposes. Mr Lyons pointed out that judicial review had been held not to provide an adequate remedy where there were straightforward issues of fact, because it was confined to points of law ( Tsfayo v United Kingdom (2009) 48 EHRR 18), but Ms Broadfoot countered by submitting that the Administrative Court would in fact adapt itself so as to determine issues of fact within judicial review proceedings where that was necessary for compliance with Article 6(1) ( Secretary of State for the Home Department v MB [2006] EWCA Civ 1140; [2007] QB 415). Ms Broadfoot's argument comes close to suggesting that a lack of a right of appeal in public law cases can never be a breach of Article 6(1).

 

82. We need not consider these issues because, in the present case, the absurdity of inviting the Administrative Court to determine issues of medical opinion when there is a better qualified tribunal that could do so contributes to a construction argument under ordinary domestic law that removes any need to rely on Article 6(1). Indeed, a close reading of [75] of his judgment in Wood suggests that Dyson LJ may have thought that irrationality might have been a better basis for deciding that case than Article 6(1).

 

83. However, we observe that the lack of a right of appeal to an independent tribunal on issues of fact in housing benefit and council tax benefit cases, which was found unlawful in Tsfayo, had already been cured by provision made by section 68 of, and paragraph 6 of Schedule 7 to, the Child Support, Pensions and Social Security Act 2000, the same statute as had, through section 57, inserted section 5A into the 1943 Act. It seems unlikely that the draftsman of the 2000 Act deliberately left a lacuna in the 1943 Act that could be filled only if the Administrative Court were prepared to determine issues of fact.

 

Conclusion

84. Accordingly, in our judgment, the Secretary of State's appeal fails on two grounds.

 

85. First, although our reasoning is different from his, we are satisfied that Judge Bano did not err in holding that the Secretary of State was bound to make a decision under article 44(6) once the claimant had made the application for a review in this case and in therefore treating the Secretary of State's decision that there were no grounds for review as a decision to maintain the 2000 assessment. In those circumstances, the claimant had a right of appeal to the First-tier Tribunal even on the Secretary of State's construction of section 5(2) of the 1943 Act.

 

86. Secondly, we also find that an appeal lies against a decision that there are no grounds for review, so that that the First-tier Tribunal had jurisdiction in this case in any event. (It was therefore strictly unnecessary to treat the Secretary of State as having made a decision to maintain the 2000 assessment, because the First-tier Tribunal could simply have substituted a decision to that effect at the conclusion of the appeal if minded otherwise to reject the appeal on its merits.)

 

87. For both these reasons, we would dismiss the Secretary of State's appeal against Judge Bano's refusal to strike out the appeal before him. That appeal therefore remains to be determined by the First-tier Tribunal. It is, of course, open to the Secretary of State to have another look at the merits of the claimant's case, and even to arrange for him to be examined, while the appeal before the First-tier Tribunal is pending.

 

88. We would grant the claimant permission to apply for judicial review of the Secretary of State's decision, but we would dismiss his claim for judicial review because a better alternative method of challenge lies in the appeal to the First-tier Tribunal.

 

REASONS OF MR JUSTICE WALKER

 

89. My conclusion is that this appeal by the Secretary of State must be dismissed. This is the same conclusion as that of Judges Rowland and Mesher, but my reasoning is in some respects different. In my view there has been an inappropriate focus in this case and in Hornsby on whether there was a "review" or not. The concept of "review" is not something which the 1943 Act seeks to engage with.

 

90. I agree with Underhill J's observation in Hornsby to the effect that there is nothing outlandish in there being a power or right of review which is subject to a threshold, with the Secretary of State being the judge of whether that threshold has been reached. Similarly there is nothing outlandish in the concept of a right of appeal which is subject to a threshold, with the Secretary of State being the judge of whether that threshold has been reached. Judges nominated to sit in the Administrative Court are particularly familiar with this concept in the area of immigration and asylum. There, however, the relevant legislative provisions are expressly designed to limit the right of appeal and to spell out the circumstances when it does not arise, or may only be exercised outside the United Kingdom. By contrast, the 1943 Act aims to confer, rather than limit, rights of appeal. The question in the present case is not whether a provision designed to limit rights of appeal has effect. It is simply whether what has been done by the Secretary of State is something which met the requirements for a right of appeal to arise.

 

91. In my view the examination by the Secretary of State in 2009 of the claimant's circumstances involved doing things which, although the Secretary of State did not regard them as a "review", met the requirements for a right of appeal to arise under section 5(2) of the 1943 Act. In order to explain my reasons for this conclusion I start with some observations about appeal rights generally before turning to appeal rights in war pensions cases.

 

Appeal rights generally

 

92. Miss Broadfoot rightly reminds us of authorities in which judges have stressed that a right of appeal is not a creature of the common law. It can only arise by legislation. Some of the authorities have taken a narrow approach to legislation conferring rights of appeal to tribunals. It is important to observe, however, that tribunal justice now has achieved a recognition which is very different from what it was in the past. Dr Mark Elliott and Professor Robert Thomas in Cambridge University Legal Studies Research Paper 8/2012 ( Tribunal Justice, Cart and Proportionate Dispute Resolution April 2012), point out that it was recognised in the Report of the Review of Tribunals chaired by Sir Andrew Leggatt in 2001 that:

 

"... tribunals develop their expertise in both the complex legal rules they apply and also in the broader policy context and the fact-finding challenges involved in adjudication."

 

93. It may be added in this regard that the Tribunals, Courts and Enforcement Act 2007, enacted to give effect to the proposals in the Leggatt review for a coherent structure for tribunal justice, has swept away as regards second level appeals old distinctions between appealable "decisions" and non-appealable "determinations along the way": see LS v London Borough of Lambeth (HB) [2010] UKUT 461 (AAC); [2011] AACR 27. In the context of modern tribunal justice authorities which take a narrow view of rights of appeal may merit reconsideration by the Court of Appeal.

 

94. As regards the present case, however, it suffices to note that even before the 2007 Act judges had stressed that the true meaning of a right of appeal must always be a question of construction: see, for example, the judgment of Sir Anthony Clarke MR in Secretary of State for Work and Pensions v Morina [2007] EWCA Civ 749; [2007] 1 WLR 3033 (also reported as R(IS) 6/07) .

 

Appeals in war pension cases

 

95. The appeal that comes before the Upper Tribunal in this case concerns compensation by way of the award of a war pension. A war pension is awarded in respect of disablement or death of members of the armed forces which is due to service before 6 April 2005.

 

96. In particular this appeal concerns the legislation as to rights of appeal to the First-tier Tribunal (formerly to the Pensions Appeal Tribunal) in England and Wales, and to the Pensions Appeal Tribunal in each of Scotland and Northern Ireland.

 

97. Legislation frequently provides appeal rights to claimants adversely affected by decisions of public bodies in certain circumstances. I use the word "decision" here, and on occasion elsewhere, in a general sense which may encompass all kinds of action by public bodies. In the past such appeals lay, and to a diminishing extent they lie today, to specially created tribunals. Under the Tribunals, Courts and Enforcement Act 2007 a uniform structure is created for appeals, usually on both fact and law, to the First‑tier Tribunal, and for further appeals, usually only on a point of law, to the Upper Tribunal.

 

98. In the First-tier Tribunal in England and Wales first-level appeals in war pensions cases will be dealt with by specialist judges and members - including medical members - assigned to the War Pensions and Armed Forces Chamber for that purpose. In Scotland and Northern Ireland first level appeals come before specialist judges and members - including medical members - of the Pensions Appeal Tribunal in each of those countries.

 

99. The 1943 Act was amended so that a second appeal on a point of law formerly lay to the Pensions Appeal Commissioners in each of England and Wales, Scotland and Northern Ireland. Such an appeal now lies from the First-tier Tribunal in England and Wales, and from the Pensions Appeal Tribunal in Scotland, to the Upper Tribunal. In Northern Ireland such an appeal lies to the Upper Tribunal in assessment cases, and to the Pensions Appeal Commissioners in other cases. Where appropriate criteria are met, onward appeals lie to the Court of Appeal in England and Wales, the Inner House of the Court of Session in Scotland, and the Court of Appeal in Northern Ireland as the case may be, and thence to the Supreme Court of the United Kingdom.

 

100. Specialist judges who may be based, or may sit, in London, Cardiff, Edinburgh and Belfast - or indeed elsewhere in the United Kingdom as the need arises - are assigned to the Administrative Appeals Chamber of the Upper Tribunal in order to deal with second-level war pensions appeals in England, Wales and Scotland, and in Northern Ireland as regards assessment. They include judges who have considerable experience of dealing with first-level appeals in war pensions cases. Among them are the Pensions Appeal Commissioners in Northern Ireland who are thus able to deal at a single hearing with cases which involve both assessment and other matters. Second-level appeals judges in war pensions cases regularly attend judicial studies events with first-level appeal judges and members.

 

101. Thus the current arrangements for war pensions appeals continue, as regards Northern Irish cases which do not involve assessment, to be the arrangements set up by the 1943 Act as amended for both first and second level appeals. As regards Scottish cases, and Northern Irish cases concerning assessment, they continue to be the 1943 Act arrangements as regards first-level appeals, and have been transferred in to the 2007 Act structures as regards second-level appeals. In England & Wales they have been transferred in to the 2007 Act structures at both levels. The hallmark of these appeals is that at both first and second level there are specialist judges and that in addition at the first level there are specialist members, including medical members. That hallmark is safeguarded because it is an inherent part of the structures devised by the 1943 Act as amended and because the 2007 Act involves structures which are designed and have been implemented to preserve and enhance the specialist nature of tribunals.

 

The aims of the 1943 Act

 

102. I said earlier that the 1943 Act aims to confer, rather than limit, rights of appeal. This can be seen from sections 1 to 5 of the Act. Sections 1 to 3 identify various types of claim, and confer an appeal right if they are rejected on certain grounds. Sections 4 and 5 are engaged, and confer a right of appeal, where such a claim is not rejected on those grounds, but a particular type of decision is made. In section 4 the type of decision is one where in such a claim the Minister withholds or reduces an award on certain grounds. In section 5 the type of decision is one where in such a claim the Minister makes an assessment of the extent of disablement.

 

103. Within section 5 it is recognised that the Minister - and the tribunal on appeal - may make an "interim assessment". Section 5(1) both confers a right of appeal from an interim assessment and identifies what the tribunal can do on such an appeal. It can uphold the assessment. If the tribunal does not uphold the assessment then it can increase or reduce the degree of disablement specified, or reduce the period for which it is to be in force. Thus the tribunal cannot on such an appeal increase the period for which the assessment is to be in force or make the assessment final.

 

104. Section 5(2) confers a right of appeal from a "final assessment" in particular circumstances and on two particular issues. It, too, identifies what the tribunal can do on such an appeal. This includes setting the "final assessment" aside and replacing it with an "interim assessment".

 

105. Section 5(1) defines "interim assessment" to mean any assessment other than such a "final assessment" as is referred to in section 5(2). It is clear from the section as a whole that a "final assessment" is one which the decision-maker does not plan to reconsider, and that any other assessment of disablement is an "interim assessment".

 

106. The rights of appeal conferred by sections 1 to 5 were supplemented by provision in section 5A for further rights of appeal. As noted in [83] above, this section was inserted by Parliament in conjunction with the provision of a right of appeal to an independent tribunal on issues of fact in housing benefit and council tax benefit cases, thereby remedying an omission which was to be found in Tsfayo to be contrary to Article 6.

 

107. Section 5A recognises that in claims of the type mentioned in sections 1 to 3 (as regards which appeal rights were conferred by those sections and by sections 4 and 5) some decisions of the Minister would not be appealable under the 1943 Act as it then stood. The purpose of the new section, prompted at least in part by concerns about compliance with article 6, is to provide a relatively simple mechanism by which additional appeal rights can be conferred. The new section, however, says nothing about the actual extent of appeal rights as they stood under sections 1 to 5 at that time.

Fulfilment of the aims of the 1943 Act: events in 2000

 

108. In the present case RC has asked that the Secretary of State for Defence reconsider a decision notified in a six-page form dated 15 February 2000. Both sides agree that if RC had wished at that time to say that the Secretary of State's final assessment of the degree or nature of his disablement was wrong, RC would have been able to appeal against the decision of 15 February 2000, because this is one of the issues on which an appeal lies under section 5(2) of the 1943 Act.

 

109. I also agree. Section 5(2) is set out in [21] above. On its face, it appears from section 5(2) that an appeal on a relevant issue lies under this subsection if four requirements are met:

 

First requirement: the claim is such a claim as is referred to in section one, section two or section three of the 1943 Act in respect of the disablement of any person;

 

Second requirement: it appears to the Minister that the circumstances of the case permit a final settlement of the question to what extent, if any, that person is disabled;

 

Third requirement: the Minister accordingly either

 

(a) decides that there is no disablement or that the disablement has come to an end or, in the case of any such claim as is referred to in section three of the 1943 Act, that the disablement is not or is no longer serious and prolonged; or

 

(b) makes a final assessment of the degree or nature of the disablement;

 

Fourth requirement: the Minister notifies the claimant of the decision or assessment, stating that it is a final one.

 

110. This statutory provision looks to the substance rather than the form. On the first requirement, the test is not what the Minister thinks but whether in fact the claim is of a kind referred to in the relevant sections. On each of the second, third and fourth requirements, the test is whether the Minister has done something. It is not whether what has been done has been described by using particular words.

 

111. Thus on the second requirement, the question to be asked is, has the Minister concluded that the circumstances of the case permit a final settlement of the question to what extent, if any, the claimant is disabled? On the third requirement, the question to be asked is, has the Minister done either of the things at (a) or (b)? On the fourth requirement, the question to be asked is, has the Minister notified the claimant of the decision or assessment, stating that it is a final one?

 

112. The second and fourth requirements, and alternative (b) in the third requirement, all involve an examination of the extent to which what the Minister has done, or in the case of the second requirement what the Minster envisages, amounts in substance to a "final assessment". Of course, if those performing the Minister's task say that what they have done is a final assessment, that will be strong evidence that what was done did indeed amount to a final assessment. However a statement that something is a final assessment may not be conclusive: one often comes across documents which say they are final but are not. Similarly, a document may use the words "final" or "assessment" in a sense which is different from that contemplated by the legislation. By the same token, there may be assertions by the Minister that there has not been an assessment, or that it is not final, or that the notification to the claimant did not state that there had been a final assessment. Again, as it seems to me, these assertions are not conclusive. What matters is the substance of what was done.

 

113. The principle of looking to the substance rather than the form can be seen in operation in relation to the decision of 15 February 2000. It concerned a claim in respect of the disablement of a person made under an Order in Council administered by the Minister (which is defined in section 12 to mean, in the circumstances of the present case, the Secretary of State). The claim was thus such a claim as is referred to in section one of the 1943 Act, and the first requirement was met.

 

114. As explained in [9] above, notification of the decision was achieved by using a six-page form with ticks and insertions. As regards the second, third and fourth requirements, section 5(2) looks to whether the Minister has done various things, but the form as filled in by the person responsible for the notification did not expressly say the precise things set out in section 5(2).

 

115. Thus as regards the second requirement, nowhere on the form did it state that it appeared to the Minister that the circumstances of the case permitted a final settlement of the question to what extent, if any, RC was disabled. The closest that the notification came to doing this was that on the form a box, which I shall call the "doctors' view box", was ticked. The doctors' view box said:

 

"Because the degree of disablement due to your accepted conditions is most unlikely to change our doctors have made a final assessment. ..."

 

116. Nor, as regards the third requirement, did the form expressly state that the Minister was making a final assessment. As with the second requirement, however, the form came close to making such an express statement in the doctors' view box.

 

117. In order to satisfy the second and third requirements it is not necessary that the matters in question be stated in the notification. The position may be different, however, as regards the fourth requirement. Here the question is, has the Minister notified the claimant of the decision or assessment, stating that it is a final one? Where it is an assessment that is notified, the fourth requirement contemplates notification that:

 

"the Minister ... [has made an] assessment of the degree or nature of the disablement ... stating that it is a final one."

 

118. While there was no specific reference in the six-page form to the Minister or the Secretary of State, those responsible for producing it were plainly acting as, or on behalf of, the Secretary of State. The form clearly described an assessment. What was needed in order to state that the assessment was final? Again it seems to me that there is no requirement to use particular words. A "final" assessment is one which the decision-maker does not plan to reconsider. What needs to be conveyed is that the assessment falls into the latter category.

 

119. In substantial compliance with the fourth requirement, the doctors' view box, along with other information on the form, conveyed that information. The form did not say expressly that the decision-maker had made a final assessment. In my view it sufficed that (1) the doctors' view box stated that "our doctors" had made such an assessment, (2) while the form stated that if RC thought his level of his level of disablement from the accepted conditions had changed he would be able to ask for it to be looked at again, the form nowhere suggested that the decision-maker planned to look at it again.

 

120. Accordingly each of the first, second, third and fourth requirements was met, and RC would have been able to appeal the decision of 15 February 2000. For that purpose he would have to act within relevant time limits, in circumstances where the ability to extend time was limited.

 

Reconsideration of a decision

121. Legislation sometimes provides that once a public body has taken a decision it may look again at that decision. Various terms are used for this process. I shall use "reconsideration" as a general term for any such statutory process. Where reconsideration results in the claimant being worse off, legislation may confer a similar right of appeal to that which was available in respect of the original decision. It may also do so where reconsideration produces a result which is not as favourable as the claimant would have wished.

 

122. As observed above, the notification of 15 February 2000, even though it referred to "our doctors" having made a "final assessment", contemplated that RC might ask for his level of disablement to be looked at again. This was no doubt because in the 1983 Order in Council article 67 made provision for review. It did so in terms which were in material respects identical to those now found in article 44 of the 2006 Order (see [18] above).

 

123. As explained in [10] and [11] above, RC made a request in October 2004 that his claim be looked at again, and was told in a letter dated 5 February 2005 that "there are no grounds to review this decision [ie the decision of 15 February 2000]." A further request in July 2009 led to a similar response in a letter dated 6 August 2009. It is the decision in that letter which is said to be subject to a right of appeal.

 

Fulfilment of the aims of the 1943 Act: events in 2009

 

124. There is no suggestion that the right of appeal in the present case arises under the 1983 or 2006 Orders. The only legislation said to give rise to such a right of appeal is section 5(2) of the 1943 Act. Section 5(2), however, makes no express mention of a decision of any kind in relation to a power of review.

 

125. I do not think that those who drafted section 5(2) with such precision can have contemplated not only that there would be supposedly "final" decisions but also that questions would arise in relation to powers to review supposedly "final decisions". Had they contemplated this, and that it might be appropriate for appeals to arise in that regard, then I am sure that they would have made further precise provision for the circumstances when such appeals would be available.

 

126. That said, it is of course possible that a decision in relation to powers of review may be encompassed within a legislative provision which was not drafted with such powers in mind. Indeed it is common ground that appeal provisions in the 1943 Act, including section 5(2), although not drafted with "review" in mind, do encompass certain decisions in relation to powers of review. The decisions in question are those which are made when under article 44(6) of the 2006 Order the Secretary of State on review maintains, continues, varies or cancels a decision, assessment or award or makes a revised decision, assessment or award. It is, I think, highly relevant that the Secretary of State concedes that relevant decisions of this kind fall within section 5(2), for this underlines the point made earlier about the importance of looking at the substance.

 

127. In the present case, however, the Secretary of State says that no decision was taken "on review", for no review under article 44 took place. The only decision, in effect, was a decision not to exercise the power of review under article 44. That, as it seems to me, is an analysis of the wrong legislative provision. What needs to be considered is whether in substance the requirements of section 5(2) have been met.

 

128. [12] and [13] above describe what was done in July and August 2009. An operational caseworker assembled papers and referred them to a doctor. The doctor considered the papers and said that any worsening could not be due to service. On that basis RC was sent the letter of 6 August 2009. It did not accurately record the doctor's advice. However it seems to me that (1) the doctor considered that it was possible to form a view about the current degree of disability attributable to service, (2) the doctor's view was that in fact the current degree of such disability was the same as it had been previously, (3) the letter conveyed that there had been an assessment by "our doctors" of the current position (albeit inaccurately described) which was implicitly adopted by the Secretary of State, and (4) it was not planned to reconsider the assessment now made by "our doctors". Thus in substance all four requirements of section 5(2) were met.

 

129. This outcome is not one which a court should strain to avoid. On the contrary, it appears to me to be a pre-eminently sensible outcome, given that the question whether additional disablement is due to service is pre-eminently a medical question on which the medical member of the tribunal may well take a different view from that of the Secretary of State's medical adviser.

 

130. The analysis that I have set out above differs from Underhill J's analysis in Hornsby. It is not unlike the analysis of the Pensions Appeal Tribunal in that case as described by Underhill J in [27] and [30] of his judgment. Underhill J rejected that analysis on principle. It is not clear that he in fact had the underlying material before him in the way that we have had on this appeal. Moreover, the principle is one which, to my mind, is not contemplated by section 5(2). Nothing in that provision attaches any significance to whether a power of review has been triggered or not. In other areas of tribunal justice there are legislative provisions which grant appeal rights where a particular type of reconsideration has taken place and decline to grant them where that has not happened. Section 5(2) is not a provision of this kind. It has not been drafted with reconsideration in mind. What has to be to be done, as regards appeal rights when there has been a request for reconsideration, is simply to examine the substance of what happened and ask whether it satisfies the requirements of section 5(2).

 

131. I stress that the analysis which I have conducted does not accuse the Secretary of State of "playing with words". I do not embark on any consideration of whether the Secretary of State has conducted a "review" despite denying doing exactly that. It is conceded that the requirements of section 5(2) will be met if after a review it is decided to maintain or alter an earlier assessment. What is important for the present case is that those requirements may be met by what is done when deciding not to review an earlier assessment. [44] above sets out what we have been told is the Secretary of State's current policy. As I understand it, consideration in all cases falling within article 44(1) is given to whether the claimant has raised something which has the potential to change a previous decision. If the answer to that is "no", then it seems to me that (1) the Secretary of State will have concluded that it is possible to form a view about the current degree of disability attributable to service, and (2) that view will be that the current degree of such disability is the same as it was previously. If the refusal letter conveys that this is the view of the Secretary of State, and that it is not planned to reconsider it, then the requirements of section 5(2) would be met.

 

132. My conclusion in the present case is supported by, but is not dependent upon, a further consideration. This is that a decision to maintain the assessment on review could have involved the taking of steps which were in substance identical to those which were in fact taken in this case. If they will suffice when they constitute what is done "on review", then it seems to me that they must suffice when they are done otherwise than by way of "review".

 

133. My conclusion in the present case is also supported by a consideration of what was promised in 2000. Here is what RC was told:

 

"If, exceptionally, you think your level of disablement from your accepted conditions has changed you can ask us to look at it again. We call this a review. We will normally require you to provide evidence to show there are grounds for us to review your assessment if you want us to look at it again."

 

134. In 2009 RC asked that the level of disablement be looked at again. He supplied evidence for that purpose. It was looked at again. When objectively read by an untutored claimant, there was a promise in 2000 that, if given evidence in that regard, on request the Secretary of State would take steps which are no different in substance from those contemplated by section 5(2). This makes it all the more likely that the Secretary of State did indeed take such steps when RC provided evidence in 2009.

 

135. On a careful reading of Underhill J's decision in Hornsby it can be seen that the distinct analysis advanced above was not put to him. I therefore have less hesitation than would otherwise be the case in reaching a different conclusion from that arrived at in Hornsby. If I am wrong, and the analysis above was put to Underhill J in Hornsby, then I consider that the intrinsic force of the analysis above is so great that to the extent that the decision in Hornsby is inconsistent with the analysis above, I decline to follow that decision.

 

Conclusion

136. My conclusion that there is a right of appeal in the present case depends upon an analysis of what was done. That analysis involves an examination of whether the substance of what was done satisfies specific requirements in section 5(2) of the 1943 Act.

 

137. It was argued for RC that section 5(2) must in law always, or in relation to a "properly constituted" application, be construed as conferring a right of appeal from a decision not to review. In reaching the conclusion that this must be the case, the First-tier Tribunal and Judges Rowland and Mesher rely upon the Court of Appeal decision in Wood, discussed at [29] above. The decision in Wood, however, concerned a different statute, particular wording in that statute which bears no similarity to the words used in section 5(2) of the 1943 Act, and different underlying circumstances.

 

138. The 2006 Order sets a framework for "review". As explained above, I do not think it matters for the purposes of section 5(2) whether there was a "review". If I were wrong, and it did matter, I would have difficulty both with Judge Bano's analysis in paragraph 35 of his decision, and with the principles which Judges Rowland and Mesher derive from Wood. As it seems to me, the Secretary of State is bound to make a decision in accordance with the terms of Article 44(6) of the 2006 Order only where principles of public law require this. I do not think that the Court of Appeal in Wood was saying that every reconsideration procedure carries with it the consequences which arose in that case. Moreover, a conclusion that the Secretary of State was under an obligation to do something does not ordinarily entitle a tribunal to proceed on the basis that it has been done in circumstances where it is clear that it has not been done.

 

139. The First-tier Tribunal considered that Article 6 of the European Convention on Human Rights was relevant here, and rejected the Secretary of State's contention that the ability to seek judicial review would satisfy Article 6. Judges Rowland and Mesher summarise the arguments on the appeal in this regard, but have not found it necessary to consider them. The decision that I have reached means that I, too, do not find it necessary to consider these arguments.

 

140. In the light of my conclusion that there is a right of appeal the judicial review claim becomes unnecessary. I agree with the course proposed by Judges Rowland and Mesher in relation to that claim. I add that if the Secretary of State's appeal had been allowed then I consider that on the alternative claim by RC for judicial review there would have been strong grounds for holding that the decision not to review was unlawful, particularly in the light of the promise that was made in 2000.