Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL ADMINISTRATIVE APPEALS CHAMBER

Appeal Nos.  CAF/1238/2011 CAF/1239/2011 CAF/1240/2011 CAF/1243/2011 CAF/1244/2011

 

Before Upper Tribunal Judge Rowland

 

 

Ms Isabel McArdle of counsel, instructed by the Free Representation Unit, appeared for the claimant.

 

Mr Tim Buley of counsel, instructed by the Treasury Solicitor, appeared for the Secretary of State for Defence.

 

 

Decision:  I allow the claimant’s appeals on files CAF/1238/2011, CAF/1239/2011, CAF/1240/2011 and CAF/1244/2011.  I set aside the decisions of the First-tier Tribunal dated 18 and 19 January 2011 and numbered SD/00264/2010, ASS/00387/2010, ASS/00807/2010 and SD/00265/2010 and I remit the cases to the First-tier Tribunal for redetermination in accordance with this decision.

 

I dismiss the claimant’s appeal on file CAF/1243/2011 from the decision of the First-tier Tribunal dated 19 January 2011 and numbered SD/00252/2010.

 

 

REASONS FOR DECISION

 

1. The claimant served in the Royal Army Ordnance Corps from 1981 to 1989, attaining the rank of lance-corporal and ultimately being discharged at his own request on payment.  It is not now in dispute that, while serving in the Army, he was injured in two separate incidents.  First, while on a training exercise on Dartmoor in 1982, he injured his left ankle.  Secondly, while on another exercise near Aldershot in 1983, he suffered injuries to his eyes.  The five appeals before me are concerned with the claimant’s entitlement to a disablement pension and an unemployability allowance in respect of the injuries he suffered as a result of those incidents.

 

The decisions of the Secretary of State

 

2. On 30 April 1996, the claimant 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 14 May 1997, the Secretary of State decided that the claimant was not entitled to a disablement pension or, perhaps more accurately, decided that his entitlement to a disablement pension or gratuity was nil.  In respect of the 1982 incident, there had been identified at a medical examination on 17 December 1996 “old injury to left ankle – minimal functional effect” but the Secretary of State was not satisfied that the 1982 incident described by the claimant had ever occurred and on that ground did not accept the injury of the left ankle as due to service.  Although he considered arthralgia in the left ankle as an alternative and separate condition, he not satisfied that it was due to service in view of the lack of reference to it in the available medical records.  In respect of the 1983 incident, he accepted that the claimant had suffered a left corneal abrasion attributable to service but assessed disablement as nil and, although he treated migraine as a separate condition, he was not satisfied that it was attributable to service or aggravated by service because he considered it to be a constitutional condition unrelated to the eye injury.

 

3. The claimant immediately applied for a review of the decision not to accept the fracture of the left ankle, the arthralgia in the left ankle and migraine as due to service but the decision was maintained on 30 June 1997.  A further application for review on 30 July 1997 was no more successful, but it is not clear whether any formal decision was issued in addition to a letter dated 8 September 1997.

 

4. There matters rested until 2007.  By that time, the 1983 Service Pensions Order had been consolidated into the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 2006 (SI 2006/606), relevant provisions of which are set out in the Appendix to this decision.  In June 2007, having returned to the United Kingdom after living and working in Canada for seven years and having consulted the Royal British Legion, the claimant made a new “claim” in respect of the 1982 incident, which was treated as another application for review.  On 28 June 2007, the Secretary of State refused to review the decision that the injury to the left ankle was not due to service.

 

5. There was then further correspondence, in the course of which the claimant mentioned in a letter dated 18 December 2007 that he had “scarring … in both eyes” and that his left leg injury “is also now affecting my right leg as I have altered my gait drastically due to the constant pain in my left leg and ankle”.  That letter appears not to have been received by the Service Personnel and Veterans Agency until 5 January 2009 and it appears from its contents that it was actually written in December 2008.  (The earlier part of the letter is identical to a letter dated 12 December 2007 and it seems likely that the claimant simply forgot to alter the year when he changed the date while “editing” the earlier letter on his computer.)

 

6. Apparently by coincidence, it was also on 5 January 2009 that the claimant contacted the Royal British Legion again.  They wrote to the Service Personnel and Veterans Agency on 19 January 2009 stating that the claimant “requests a review of a worsening condition” and that the “date of the first approach was 5^th January 2009”.  The claimant was asked to complete an “application for a review”, which was received by the Secretary of State on 4 February 2009.  In it, the claimant referred both to the injuries due to the 1982 incident and to migraine.  Shortly afterwards, the claimant submitted a “Further Condition Claim Form” dated 16 April 2009, in respect of “scarring and injury to both left and right eyes that were misdiagnosed by military and have caused migraines and dizziness only since the injury occurred” as well as “severe ankle problems and associated problems”.  Later in the form he referred to “ankles (sic) problems” and it is clear from docs 503 and 727 that the Secretary of State understood the claimant to be suggesting that he was suffering from disability in his right ankle and both hips in consequence of the injury to the left ankle.

 

7. This time, the claimant had some success.  He was told in September 2009 that it had been accepted that there were grounds for review of the decision of 14 May 1997 and the decision on the review was issued on 10 December 2010.  The Secretary of State decided that the original claim in respect of the first incident had been inadequately investigated and, after further investigation and a medical examination of the claimant, he accepted that the 1982 incident had occurred and, moreover, that the injury to the claimant’s left ankle had worsened by the time he had contacted the Royal British Legion on 5 January 2009 and had led to arthralgia in the claimant’s right knee and in his right hip.  It was also accepted that the claimant had a corneal abrasion in his right eye as well as in his left eye as a result of the 1983 incident.  Disablement was assessed at 6-14% in respect of the period from 30 April 1996 (although 23 April 1996 seems subsequently to have been accepted as the correct date) to 4 January 2009 (based on nil in respect of the corneal abrasion to the left eye and 6-14% in respect of the injury to the left ankle) and at 50% from 5 January 2009 (as a long-term interim assessment based on 1-5% for left corneal abrasion (1983), 1-5% for right corneal abrasion (1983), 30% for injury to left ankle (1982), 1-5% for arthralgia right knee and 1-5% for arthralgia right hip).  The decision was completely silent as to the right ankle, in respect of which the examining medical practitioner had said that there “is no evidence of right ankle impairment”, and also the left hip and the migraines, about which the examining medical practitioner had said nothing.  It resulted in the payment of a gratuity of £5,387 (which I observe was the rate in force at the time of the decision) in respect of the period from 30 April 1996 to 4 January 2009 and a pension from 5 January 2009 at the rate of £72.55 pw to 7 April 2009 and 76.20 pw from 8 April 2009 (with annual up-ratings to be expected thereafter). 

 

8. On 25 February 2010, the claimant submitted another “Further Condition Claim Form” – this time in respect of “resulting injury to right foot due to unnatural gait from left ankle injury”.  After a further medical examination, the Secretary of State decided on 14 June 2010, first, that arthralgia in the right ankle and foot was due to service and that an assessment of 1-5% was appropriate, secondly, that an increased assessment of 6-14% in respect of arthralgia right knee was appropriate and, thirdly, that an composite assessment of 60% was appropriate with effect from 25 February 2010.

 

9. The claimant had also claimed an allowance for lowered standard of occupation and a mobility supplement, both of which were awarded with effect from 25 February 2010.  Claims for a clothing allowance and a treatment allowance were refused on 18 February 2010 and 14 July 2010 respectively.  It appears that the claimant also claimed constant attendance allowance but I am not aware of the outcome of that claim.  Following the decision of 14 June 2010, he claimed an unemployability allowance but this claim was refused on 19 July 2010.

 

The decisions of the First-Tier Tribunal

 

10. On various dates, the claimant lodged appeals under the Pensions Appeal Tribunals Act 1943 against the decision of 10 December 2009, the decision of 14 June 2010, the refusal of a treatment allowance, the refusal of an unemployability allowance and, apparently on the basis that no appealable decision had been made on 10 December 2009 in respect of migraine, the decision of 14 May 1997 as subsequently maintained in that year.  Because separate aspects of the decisions of 10 December 2009 and 14 June 2010 were challenged and bore rights of appeal under different provisions, the claimant was treated by the Service Personnel and Veterans Agency as having made eight appeals altogether.  The First-tier Tribunal heard these appeals over two days, on 18 and 19 January 2011, and issued eight separate decisions.

 

11. In relation to the dates from which various disablements should be taken into account, the First-tier Tribunal decided that the condition arthralgia right ankle should have been taken into account from 5 January 2009, rather than from 25 February 2010, but it did not accept that either that condition or the conditions right corneal abrasion, arthralgia right knee or arthralgia right hip should be taken into account earlier than 5 January 2009 or that the condition arthralgia right foot should be taken into account earlier than 25 February 2010.  It also refused to accept arthralgia left ankle as a separate condition to be taken into account because it had taken the relevant disablement into account in considering the disablement resulting from the injury to left ankle.

 

12. As to the assessments, it refused to vary the assessment of 6-14% from 23 April 1996 to 4 January 2009 and 50% from 5 January 2009 to 24 February 2010 but it reduced the indefinite long-term interim assessment of 60% from 25 February 2010 to an interim assessment of 50% in respect of the period from 25 February 2010 to 18 January 2012.  It did not attribute separate percentages to the various conditions.

 

13. It dismissed the claimant’s appeals in respect of treatment allowance and unemployability allowance.

 

14. Finally, the First-tier Tribunal held that it had no jurisdiction to consider the appeal against the decision of 14 May 1997, as maintained, because the appeal had been brought more than a year late.  However, it pointed out that the Secretary of State appeared not to have addressed in the decision of 10 December 2009 the question whether migraine should be accepted as a condition attributable to, or aggravated by, service and suggested that the claimant was still within time for bringing an appeal in respect of that issue.

 

Permission to appeal to the Upper Tribunal

 

15. The claimant applied for permission to appeal to the Upper Tribunal under section 11 of the Tribunals, Courts and Enforcement Act 2007 in respect of all eight decisions.

 

16. I refused permission to appeal in respect of the decision not to treat arthralgia left ankle as a separate condition because the point was academic and I had some difficulty in seeing why the Secretary of State had felt obliged to make a decision on this issue at all, rather than simply informing the claimant that the relevant disablement had already been taken into account in his assessment in respect of the injury to the left ankle and that the question whether the assessment adequately reflected the arthralgia would be looked at in the assessment appeal.  I also refused permission to appeal against the decision in respect of the treatment allowance and against the decision that the First-tier Tribunal had no jurisdiction to consider the late appeal against the decision of 14 May 1997, as maintained.  In respect of the latter case, it is arguable that the First-tier Tribunal could have considered the question of migraine within the existing appeal against the decision of 10 December 2009 but I took the view that, because the claimant had by then lodged another appeal to the First-tier Tribunal in which the Secretary of State accepted that the First-tier Tribunal could determine the question whether the claimant was suffering from migraine, the claimant had already got all he could have achieved on an appeal to the Upper Tribunal.

 

17. I granted permission to appeal against the other five decisions, two being concerned with the dates from which different conditions could be taken into account, two being in respect of the overall assessments and the final one being the decision in respect of unemployability allowance.

 

The date from which accepted conditions may be taken into account

 

18. The principal issue in these appeals is whether the First-tier Tribunal erred in law in deciding that the accepted conditions of condition arthralgia right ankle, right corneal abrasion, arthralgia right knee or arthralgia right hip should be taken into account no earlier than 5 January 2009 and that the condition arthralgia right foot should be taken into account no earlier than 25 February 2010.

 

19. The claimant’s case before the First-tier Tribunal was that he had been suffering from these conditions ever since his first claim in 1996 and that he should be assessed accordingly.  The Secretary of State’s case was that claims in respect of those conditions had been made only on 5 January 2009 or 25 February 2010 and there were no grounds upon which the commencing dates of the consequences award could be earlier than the date of claim.  He presented the issue to the First-tier Tribunal as arising on “an appeal against the Secretary of State’s decision of 10^th December 2009 that the commencing date of 5^th January 2009 is appropriate for the acceptance of the further conditions of 1. Right corneal abrasion (1983), 2. Arthralgia right knee and 3. Arthralgia right hip as attributable to service” (SD/00265/2010) and on an appeal “against the Secretary of State’s decision of 14^th June 2010 that the commencing date of 25^th February 2010 is appropriate for the acceptance of the further conditions of Arthralgia right ankle and foot as attributable to service” (SD/00264/2010).  Thus these appeals were each seen as an aspect of the claimant’s challenges against the decisions of 10 December 2009 and 14 June 2010, the challenges to the overall levels of assessment being treated as separate appeals (ASS/00387/2010 and ASS/00807/2010).

 

20. The Secretary of State referred the First-tier Tribunal to article 46 of, and Schedule 3 to, the 2006 Service Pensions Order.  

 

21. What the Secretary of State did not spell out in his submission to the First-tier Tribunal is why, in view of the approach he took to the other conditions, he considered that the award in respect of the left ankle injury could be effective from 1996.  However, the reason seems fairly clear.  A revised award was made under article 44(6) in consequence of a review.  There may be different ways of analysing article 44, but I think there would technically have been a series of reviews, under article 44(1)(a), then article 44(1)(b) and finally article 44(2)(c).  In any event, although ordinarily paragraph 1(1) and (2)(c) of Schedule 3 would have the effect that a revised award would be effective only from the date of the application for review, it is plain that the Secretary of State accepted that the failure properly to investigate the claim in 1997 or thereafter amounted to an official error so that paragraph 1(7) applied.

 

22. I say this because, although I can find no reference to paragraph 1(7) in the Secretary of State’s submission to the First-tier Tribunal or in the records of his decision, “error/omission” is mentioned on doc 784.  Paragraph 10 of Schedule 3, which applies where there has been a failure to claim or apply for a review due to an act or omission by the Secretary of State, would plainly have been inappropriate because the claimant had made a claim in 1996 in respect of the injury to his left ankle.  Paragraph 1(7) is therefore the only possibly relevant provision.  It is not clear whether the Secretary of State reads “an award” in paragraph 1(7) as including “a decision rejecting a claim for pension” or whether he considers that there was an award in 1997 in this case albeit that disablement in respect of a different condition was assessed at nil.  It is however clear that he reads “the date of the original decision” as “the same date as the original decision (or the date from which the original decision should have been effective)” in order to overcome clearly defective drafting.  I also suggest that, if the subparagraph is to make any sense, “which arose” needs to be read as “having been found to have arisen”.

 

23. The question then arises as to why paragraph 1(7) does not apply in respect of the other conditions or, at any rate, the conditions other than the right corneal abrasion which is unrelated to injury left ankle and is therefore unrelated to the official error. The Secretary of State’s answer is first that paragraph 1(7) applies only in relation to applications for review, as opposed to new claims, secondly that, subject to article 35(6), there has to be separate claim in respect of each condition, thirdly that such claims were made only on 5 January 2009 and 25 February 2010 and fourthly that none of paragraphs 2 to 11 of Schedule 3 applies so as to allow the commencing dates of awards made on those claims to be any earlier than the relevant date of claim.

 

24. The first of those points is so uncontroversial that it has not even been articulated by the Secretary of State, although it is implicit in his approach.

 

25. The second has been the main point of controversy and I will consider it in more detail below.

 

26. The third point is not controversial on this appeal although it is submitted by the claimant that no formal claim for the further conditions was required, whereas the Secretary of State submits that formal claims were required by virtue of article 34.  However, the issue merits consideration because, while it is obvious that 25 February 2010 was considered as a date of claim because it was a date on which a Further Condition Claim Form was submitted, the Secretary of State and the First-tier Tribunal differed as to why 5 January 2009 was a date of claim and I am not sure that either of them was entirely correct. 

 

27. 5 January 2009 was a date on which the claimant contacted the Royal British Legion and it seems to me that the implication of the documents mentioned in paragraph 6 above and the Secretary of State’s submission to the First-tier Tribunal is that that organisation was regarded as an authorised agent for the purposes of article 37(2)(a) and that either the application for review received on 4 February 2009 or the “Further Condition Claim Form” dated 16 April 2009 was, or both were, treated by the Secretary of State as a claim for the purposes of article 34(1) that was to be treated under article 37 as made on 5 January 2009.  I observe, however, that 16 April 2009 was more than three months after 5 January 2009 and that there was no mention of any of the conditions other than the injury to the left ankle in the application for review received on 4 February 2009.  Understandably given its purpose, the form for an application for review did not ask the claimant to identify the disablement.  It is therefore not entirely clear to me how the Secretary of State’s analysis leads to 5 January 2009 being the date of claim in respect of the further conditions, given the terms of article 37(2) and the fact that the length of time that elapsed between the first contact with the British Legion and the submission of the Further Condition Claim Form was more than three months.

 

28. The First-tier Tribunal understood the case differently.  It said –

 

“In a letter dated 5/1/09, [the claimant] made a claim for a number of conditions including ‘problems right ankle’. …  Although [the claimant] does not appear to have specifically completed a claim form in early 2009 for this condition, the SPVA have accepted the letter of 5/1/09 to initiate his other claims and should, therefore, do likewise in respect of the claim for Right ankle.  …  So far as Right foot is concerned, this is first mentioned in a claim form dated 25/2/10 which is therefore the relevant commencing date under Service Pensions Order Schedule 3(2)(b) [sic – presumably a reference to paragraph 1(2)(b) of Schedule 3]”

 

29. This approach seems to have been based on an understandable mistake.  The letter from the Royal British Legion dated 19 January 2009 was not included in the relevant bundle of documents before the First-tier Tribunal but what was included was a copy of the letter dated 18 December 2007, bearing a date stamp that appears to show it to have been received by the Service Personnel and Veterans Agency on 5 January 2009.  The version of that letter at doc 459 of the bundle before me does not bear the date stamp.  I do not think that the Secretary of State had treated that letter as being a claim, although he might have treated it as an application for review, but it is easy to see why the First-tier Tribunal did so.

 

30. But the First-tier Tribunal’s approach seems to me to be flawed. Until 1996, when the forerunner of articles 34 to 37 were introduced (see article 3 of the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Amendment (No. 3) Order 1996 (SI 1996/2882)), there were no provisions in the 1983 Service Pensions Order as to what amounted to a claim and the Secretary of State was no doubt entitled to treat any document as amounting to a claim.  The prescriptive scheme that now exists implies an exclusion of such an approach.  Article 34(1) clearly requires the completion of an approved claim form and admits to no exception.  It seems unfortunate that there is no residual power to treat any other written document as sufficient in the circumstances of any particular case to amount to a claim.  Compare the power to do so in regulation 4(1)(a) of the Social Security (Claims and Payments) Regulations 1987 (SI 1987/1968).

 

31. Nonetheless, if a formal claim is required, I would not interfere with the acceptance by the First-tier Tribunal of 5 January 2009 as a date of claim for not only the conditions mentioned in the Further Condition Claim Form submitted on 16 April 2009 but also the injury to right ankle accepted as due to service when the claim submitted on 25 February 2010.  It seems to me that the choice of that date is justifiable on the basis that the Secretary of State should have sent the claimant a claim form upon receipt on 5 January 2009 of the letter dated 18 December 2007 and that the claimant can rely on paragraph 10 of Schedule 3 on the basis that he cannot be expected to have realised that he needed to fill in a particular form when the Secretary of State had failed to give him that information.  I also observe that, if (as I think the Secretary of State argues) articles 34 and 37 apply only to claims and not to applications for review, 5 January 2009 would be the date of the application for review in respect of the injury left ankle simply by virtue of the letter received on that date being treated as such an application.

 

32. The fourth of the points identified in paragraph 23 above – that, if formal claims were required for the new conditions, none of the provisions of Schedule 3 applies so as to allow the commencing dates of awards made on claims treated as made on 5 January 2009 and 25 February 2010 – has also not been controversial on this appeal, but I have some doubt about the First-tier Tribunal’s reasoning in respect of the commencing date for the assessments of arthralgia right knee and arthralgia right hip, for which, together with the right corneal abrasion, the date of claim was treated by the First-tier Tribunal as being 5 January 2009.

 

33. The First-tier Tribunal, having rightly considered that paragraphs 1(7) and 5 were not relevant, considered paragraph 10 of Schedule 3.  It was not disputed that the claimant had an abrasion in his right eye in 1997 and that that was not picked up in the medical examination then.  The claimant’s case was that he had also been suffering from problems with his right hip and right knee in 1997 and that he had been prevented from appealing or making a further claim by advice given to him over the telephone by the War Pensions Agency at that time. 

 

34. The First-tier Tribunal rejected the claimant’s evidence.  Crucially, it found that the claimant had not been suffering from any disablement in his right hip or knee in 1997.  There was evidence that the claimant’s gait was abnormal at the time, but that merely suggests a risk of future disablement in the right leg and does not show that he was already suffering any such disablement.  The First-tier Tribunal’s finding was, in my view, helpful to the claimant because it shows that he was not at fault in not including such disablement in his 1996 claim or 1997 application for review and in not drawing the medical practitioners’ attention to any such disablement at that time.  It also, of course, shows that there was no official error in not making a decision in respect of such disablement.  The First-tier Tribunal further found that advice from the War Pensions Agency had not prevented the claimant from appealing or making a further claim and it found no official error by the Secretary of State.  On the issues it considered, those were findings it was entitled to make. 

 

35. However, it seems to me that it overlooked – possibly because it was not drawn to its attention by the Secretary of State – the official error in relation to the claim in respect of the injury to the claimant’s left ankle and it did not consider the implication that that must have had for any claim in respect of arthralgia in the claimant’s right hip and right knee.  The claimant correctly understood that any disablement in respect of his right leg could be found to be due to service only if it was accepted both that it arose in consequence of the injury to his left ankle and that the injury to his left ankle was due to service.  He had no reason to suppose that it would not be accepted that disablement in his right hip and knee was the result of the injury to his left ankle but his case that the latter disablement was due to service had not only been rejected three times in 1997 but it had also been rejected in 2007. 

 

36. It is true that, if he was suffering from problems in his right leg at the time, the claimant could have referred expressly to those problems in his application for review in 2007.  However, the claim form he completed by way of an application on 10 June 2007 did not warn the claimant that he might be prejudiced if he was not precise enough in referring to every part of the body affected.  Questions 51 and following of Part 3 of the form asked him to identify “the wound or injury you want to claim for” and then to describe the incident leading to it, and it is not surprising that he referred only to breaking his left ankle on Dartmoor in 1982.  Question 65 asked him to identify any “illness, disease or other condition(s)” and he referred again to the problems with his ankle, saying that they had got progressively worse and that he could not walk very far, which he repeated when asked in question 69 how the “disablement(s) that you are claiming affect(s) you”.  He did not explain further why he could not walk very far.  The application was rejected without any medical examination and, due to the Secretary of State’s then understanding of the law, without the claimant being informed that he had a right of appeal.  Referring to the problems in his right leg would presumably not have made any difference to the outcome if he had said they arose out of the injury to his left ankle.

 

37. Two points arise out of this.  First, one possible implication of the claimant not having mentioned disablement in his right knee and hip was that he was actually not suffering from such disablement to any significant extent in June 2007 and the problem developed between then and his writing in December 2008 the letter dated 18 December 2007.  If that is so, it is difficult to see why paragraph 10 of Schedule 3 should not have applied to enable the claim to be backdated and an award made from the date(s) when the conditions did develop.  The development of the new condition could not reasonably have been expected to prompt the claimant into making a claim when he knew that claim was dependent on another condition being accepted as due to service and claims in respect of that other condition had wrongly been rejected four times.

 

38. Secondly, even if the claimant was suffering from disablement in his right knee and hip in June 2007, it is arguable that the errors in 1996 and 1997 in determining the claim in respect of the injury to his left knee had a bearing on the way he completed the claim form in 2007 and that there was a further “act or omission” in 2007 when the Secretary of State once again not did not investigate the 1982 incident and instead rejected the 2007 application out of hand without a medical examination at which the claimant might have been expected to draw attention to all the disablement from which he was suffering.  There is at least the beginning of an argument under paragraph 10 there but the First-tier Tribunal in any event erred in not making a finding as to whether the claimant was suffering disablement in his right knee and hip in June 2007.

 

39. However, it is unnecessary to consider paragraph 10 further for reasons I will now explain.

 

40. As I have said, the principal issues of controversy on this appeal is whether, subject to article 35(6), a separate claim is required in respect of each disablement claimed to be due to service.  But there is also a question as to how article 35(6) operates in the context of a review.

 

41. Articles 34 to 37 make provisions for claims and it is article 34 that appears to state when a claim is necessary.  It is implicit in article 34(2) that, subject to article 35, separate claims have to be made in respect of each of the pensions, allowances or supplements mentioned in subparagraphs (a) to (p).  (In practice a claim for retired pay or pension payable under article 6 is always taken to include a claim in the alternative for a gratuity under article 7 because which is paid depends on the assessment of disablement.  This is presumably the explanation for there being no reference in article 44(1)(a) to a claim for a gratuity.)  However, there is nothing in article 34 itself to suggest that a separate claim is required in respect of each injury or each element of consequential disablement.  Separate pensions or gratuities are not usually paid in respect of each injury.  On the contrary, article 42(2)(c) provides that –

 

“where … 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”.

 

It is clearly intended that a single award of a pension or gratuity should be made on the basis of such a composite assessment (although there can be exceptions where gratuities are concerned – see for example article 42(13)).  There is no express provision to that effect but the language of articles 6 and 7 seems also to contemplate a single claim in respect of all the disablements from which a claimant might be suffering.

 

42. Thus, looking only at articles 34 and 44, it is possible to argue, as the claimant does, that a formal claim as required by regulation 34 is necessary only for an initial claim for a disablement pension and that, once one has been awarded (even if the assessment of disablement is nil so that no payment is made), any adjustment to the award is by way of a review, even if the ground of adjustment is that the claimant has become disabled due to a new injury having developed as a result of service.  Such an increase of disablement would, at first sight, appear to be a material change of circumstances justifying a review under article 44(2)(b).  

 

43. The Secretary of State, on the other hand, places a great deal of weight on article 35(6), which provides –

 

  “(6) Where a claim has been made for retired pay or a disablement pension under article 6 on the basis of a particular disablement which is alleged to have been due to an injury which is attributable to or aggravated by service, no separate claim shall be required in respect of any other disablement which appears, upon an examination which is conducted by a medical practitioner before the claim is determined, to have been so attributable or so aggravated, whether due to that or another injury.”

 

44. He submits that the implication of article 35(6) is that a claim is ordinarily required in respect of each “particular disablement which is alleged to have been due to an injury which is attributable to or aggravated by service” and that this is made unnecessary only where a medical practitioner identifies another condition before a claim is determined.  He further points to the words “upon an examination which is conducted by a medical practitioner before the claim is determined” and submits that, in the present case, the claim in respect of the injury to the claimant’s left ankle was “determined” in 1997 and it was too late in 2009 to identify new disablement within that claim.  Article 35(6), he submits, does not apply on an application for review under article 44 so that, although there was an application for review on 5 January 2009 in respect of the left ankle injury and there were grounds for backdating the award made on that application, a fresh claim was required in respect of other conditions arising out of that injury and, insofar as such a claim was made on 5 January 2009, there were no grounds for backdating the award made on that claim. 

 

45. If this submission is correct, it seems to me to produce an unfortunate anomaly.  The assessment of disablement made on 10 December 2009 in respect of the injury to the left ankle was the first such assessment, because the injury had originally not been accepted as attributable to, or aggravated by, service.  In principle, if the Secretary of State had accepted that the disablement arising from the injury to the left ankle had increased substantially in, say, 2006, he could have made a stepped assessment of, say, 6-14% from 23 April 1996 to 31 December 2005 and 20% from 1 January 2006 to 4 January 2009 if he considered that that better reflected the disablement than a single figure in respect of the whole period. 

 

46. Why, then, should it be different if increased disablement is not simply an increase in existing disablement but is a new disablement that is consequential upon the original disablement?  That was the position here, where the claimant’s case, now accepted by the Secretary of State, is that he was suffering from disablement in his right hip, knee, ankle and foot as a result of the disablement in his left ankle, the disablement in the right hip and knee having been accepted by the Secretary of State as due to service at the same time that the assessment of disablement was made in 2009.

 

47. Moreover, it seems very odd indeed to find a requirement to make a claim in the article that identifies those cases where claims are not required, when there is no such requirement in the article that does make a claim a condition precedent to the making of an award.  One should, I suggest, be slow to find an important restriction on entitlement hidden in a provision that appears on its surface entirely benevolent to claimants.  I am not persuaded that article 35(6) is as central to the determination of this case as has been suggested.  Nonetheless, I do accept the Secretary of State’s argument up to a point.

 

48. In my judgment, the explanation for article 35(6) lies in the language of articles 40 and 41, both of which echo the language of articles 6 and 7 and refer to a “claim” being made “in respect of a disablement” and provide that “such disablement” is to be accepted as due to service if it is certified as due to an injury which is attributable to, or aggravated by, service.  (Confusingly, disablement is defined in Schedule 6 as “physical or mental injury or damage or loss of physical or mental capacity” but, in R(AF) 1/07, Mr Commissioner Mesher, as he then was, made the point that the legislation nonetheless requires disablement to be distinguished analytically both from “what the person is prevented from or restricted in doing as a result” and from the “injury” (which, it is provided in Schedule 6, “includes wound or disease”) that must be the cause of the disablement, even though the “disablement” and the “injury” may be described in the same terms.)  The use of the indefinite article in the phrase “in respect of a disablement” suggests that articles 40 and 41 do contemplate a separate claim being made in respect of each disablement alleged to be due to service.

 

49. On the other hand, it has always been accepted that a number of claims in that sense can be made in one claim for a disablement pension and that the Secretary of State is entitled to award a pension in respect of a different disablement from that actually claimed, either additionally or instead of the one claimed.  Nowhere in articles 34 to 37 except in article 35(6) is there any reference to a claim for retired pay or a disablement pension in respect of a particular disablement.  It is, I consider, important to bear in mind that the forerunners of articles 34 to 37 did not replace other provisions when they were introduced in 1996.  As I have already mentioned, before their introduction the 1983 Service Pensions Order did not make any provision as to the form in which claims were to be made and, until 1997 (see Schedule 7 to the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Amendment Order 1997 (SI 1997/286)), the Secretary of State had a broad discretionary power to depart from the general rule that the commencing date of an award should be the date of the relevant claim or application for review.  Obviously a claim in the ordinary sense of the word had to be made before a pension could be awarded.  Equally obviously, the claimant was expected to identify the disablement in respect of which the disablement pension was claimed but there is nothing in the 1983 Service Pensions Order to suggest that failing to do so prevented the disablement from being taken into account if the claimant failed to identify it accurately or at all, provided it was nonetheless identified before or during the medical examination carried out before the Secretary of State made his decision, but that was all left to be implied.  There were forms for making claims, but the legislation did not require their use.

 

50. The reason that the date of the medical examination was important can be seen by looking at current provisions that are not materially different from those in force before 1996.  Articles 40 and 41 require it to be “certified” that disablement is due to an injury which is attributable to, or aggravated by, service, just as the forerunner of article 42(5) requires the degree of disablement to be “certified”.  Article 43(2) requires that such certificates be given by one or more medical practitioners.  In practice, there is invariably a medical examination except where there is a refusal to review (or possibly, since Secretary of State for Defence v RC (WP) [2012] UKUT 229 (AAC); [2013] AACR 4 was decided, where it appears obvious that a previous decision should be maintained on review), in which case there will have been a previous examination.  Disablement is not in practice accepted as being due to service without there being a medical examination and, therefore, as a matter of practicality, if a disablement is not identified by the end of the medical examination, it will not be taken into account when the claim is determined.  The certificate is not necessarily issued by the doctor who carries out the examination (particularly, for example, where the claimant is abroad) but, if not, will be based on the report of the examination.

 

51. Moreover, unless the question whether a particular disablement is or is not due to service is addressed at the medical examination so that the Secretary of State makes a decision in respect of it, a tribunal considering an appeal against the Secretary of State’s decision is not entitled to find that that particular disablement was due to service.  This is a consequence of the language of section 1(1) of the Pensions Appeal Tribunals Act 1943 – the only possibly relevant provision of that Act – which provides –

 

“Where any claim in respect of the disablement of any person made under any such Royal Warrant, Order in Council or Order of His Majesty as is administered by the Minister or under a scheme made under section 1 of the Polish Resettlement Act 1947 is rejected by the Minister on the ground that the injury on which the claim is based—

(a)  is not attributable to any relevant service; and

(b)  does not fulfil the following conditions, namely, that it existed before or arose during any relevant service and has been and remains aggravated thereby;

the Minister shall notify the claimant of his decision, specifying that it is made on that ground, and thereupon an appeal shall lie to the appropriate tribunal on the issue whether the claim was rightly rejected on that ground.”

 

52. The only issue before the tribunal on an appeal under that provision is the question whether “the injury on which the claim is based” (which presumably includes injuries identified at the relevant medical examination) was rightly found not to be due to service.  This has been held to include the question whether the claimant is suffering at all from “the injury on which the claim is based” (Secretary of State for Defence v Rusling [2003] EWHC 1359 (QB)), but the tribunal has no power to consider whether the claimant is suffering from some other disablement that is due to service.  (Since certificates are required where it is found that disablement is due to service but not where it is not, there is a question as to whether the Secretary of State can be taken to have refused to accept that a disablement is due to service in a case where, as in this case in relation to migraine, he accepts that the issue ought to have been considered by a medical practitioner but it was overlooked or, as in this case in relation to the injury to the right ankle, where the issue was considered by the medical practitioner but the Secretary of State failed to make a decision on it in the light of the medical practitioner’s report.  It appears that the Secretary of State does accept that a right of appeal lies in the first of those situations, as he accepts that the claimant could have appealed in respect of the migraine.  On the facts of this case, I need not decide whether an appeal lies in the second of those situations because the Further Condition Claim Form submitted on 25 February 2010 can be treated as an application for review of the decision of 10 December 2009 and the problem resolved that way.) 

 

53. What then if, having been awarded a disablement pension, the claimant seeks an increase in the award on the basis that a disablement not identified in the original claim is due to service?  As I have said, although the legislation fails to make explicit whether the claimant should make a new claim or should apply for a review, the language of articles 40(1) and 41(1) and their forerunners suggests that generally a new claim is required and that that has always been the position.  Against that background, it seems clear that the forerunner of article 35(6) was not intended to create a new duty on claimants to make a formal claim in respect of each disablement.  On the contrary, it was to ensure that the forerunner of article 34(1) did not have that effect.

 

54. As had previously been the case, article 35(6) anticipates that a claimant making a claim will identify the disablement in respect of which the claim is made, presumably now within the “form approved by the Secretary of State” mentioned in article 34(1).  It was rightly argued on behalf of the claimant that there is a limit to what can reasonably be expected from a claimant.  However, while a claimant cannot be expected to identify disablement in technical terms, it does not seem obviously unreasonable to expect a claimant to be able to identify those parts of the body that do not function properly or which hurt or to describe impairment in non-technical terms sufficient to alert the Secretary of State to the nature of the medical examination that will need to be carried out.

 

55. I agree with the Secretary of State that a practical effect of article 35(6) is that a claimant may add to disablement identified in a claim by drawing attention to it at the medical examination because, although the draftsman may have had in mind a medical practitioner adding a disablement of his or her own motion, there is nothing to prevent a claimant from drawing a medical practitioner’s attention to disablement not mentioned on a claim form.  This mitigates the effect of any defects in forms or of any difficulties a claimant has in completing forms.  Moreover, there is nothing in articles 34 to 37 that prevents a claim form being amended before a medical examination takes place to include other disablements.  Otherwise, a claimant would be obliged to make a new claim that would be effective only from a later date than the one already under consideration, which would place a claimant at a disadvantage by comparison with one who did not make another claim but mentioned the matter to the medical practitioner at the examination.  Therefore, presumably, a claimant may simply inform the Secretary of State of further disablement, provided he or she does so with sufficient clarity to ensure that the Secretary of State alerts the medical practitioner to the claimed existence of the disablement. 

 

56. None of this, however, explains what happens when there is a review of a decision made on a claim, the review being on grounds other than the existence of a new disablement.  Articles 34 to 37 make no reference at all to applications for review.  This may be deliberate, although it may be due to an oversight as it is not obvious why, for instance, article 37 should not apply to applications for review.  In any event, I accept that the word “claim” in those provisions cannot be interpreted as including an application for review. But it does not follow that article 35(6) has no relevance on an application for review.  If, before the forerunners of articles 34 to 37 were enacted, a medical practitioner was entitled to certify on a medical examination carried out for the purposes of a claim that disablement other than that identified by the claimant was due to service, I can see no reason whatsoever why he or she should not equally have done so on a medical examination carried out for the purposes of an application for review of a decision as to whether or not disablement was due to service.  The lapse of time since the original claim would have been neither here nor there, because the commencing date of the award in so far as it was attributable to that disablement would still have been subject to the general rule that an award made on an application for review was effective only from the date of the application for review unless there were circumstances justifying the Secretary of State making the award effective from an earlier commencing date.  Moreover, on that construction, the anomaly to which I have drawn attention in paragraphs 45 and 46 above would have been avoided.

 

57. I do not consider that the forerunner of article 35(6) was intended to alter that position.  I accept the Secretary of State’s argument that there still has to be a claim for a disablement pension and that, under article 34(1), the claim has to be on a form approved for that purpose.  I also accept that, in relation to the review in this case, the relevant claim was that made in 1996.  (It was actually made before the forerunner of article 34 came into force and it may be arguable that article 34, and therefore article 35(6), do not strictly apply to this part of this case.  However, in fact the claimant did complete an approved form and I will determine this case on the basis that article 35(6) does apply.)

 

58. Where I part company from the Secretary of State is his submission that article 35(6) cannot assist the claimant because the relevant claim was determined in 1997.  It was, of course determined then, but when a decision as to whether disablement is due to service is reviewed, the claim is in effect determined again.  I am satisfied that article 35(6) must be applied on that basis, both because I do not consider that article 35(6) was intended to alter the effect of what I consider the previous position to have been and because taking that approach avoids creating the anomaly to which I have already referred.  Different considerations would, of course, apply if the decision being reviewed was only the assessment of disablement due to an already accepted condition.  It is at best doubtful that such a review involves the redetermination of a claim, at any rate where the ground of review is a change in the degree of disablement since the original claim was determined.

 

59. In any event, I am satisfied that article 35(6) has the effect that, where a claim made for a disablement pension on the basis of a particular disablement is rejected on the ground that the disablement is not due to an injury which is attributable to or aggravated by service and that decision is reviewed, no separate claim is required in respect of any other disablement which appears, upon an examination which is conducted by a medical practitioner before the review is determined, to have been so attributable or so aggravated, whether due to that or another injury.

 

60. It follows that it has turned out to have been strictly unnecessary for the claimant to have submitted the Further Condition Claim Form on 16 April 2009.  That is not to say that there not good reasons for the claimant completing the form.  First, it protected the claimant’s position in respect of the right corneal abrasion in the event of the Secretary of State refusing to review the 1997 decision in respect of the injury to the left ankle.  Secondly, there are no doubt good administrative reasons for inviting a claimant who has suggested in correspondence that he is suffering from further disablement to complete a form which will elicit the relevant details in relatively unambiguous terms that can be submitted to the medical practitioner.  My attention was drawn to Davis J’s remarks in R.(Clancy) v Secretary of State for Defence [2006] EWHC 3333 (Admin) where he said –

 

“26. …  I simply do not see how it can be legitimate to make that [2000] claim backdate itself to 1997 by dredging around in the text of the 1997 application, with a view to trying find some kind of wording which would be capable of supporting a claim for further condition entitlement.  That is not what happened here.  Indeed, if that were a legitimate approach, it would give rise to the greatest possible uncertainty.  The date of claim is central to the operation of Articles 4 and 5 [of the 1983 Service pensions Order, equivalent to articles 40 and 41 of the 2006 Service Pensions Order] (and other Articles).  Would it be the obligation of Appeal Tribunals to rummage around in the original files of every single case to see if, in previous papers, what might or might not be said to have been a further condition entitlement claim had been made?  Would it vary depending on the practice of different Appeal Tribunals?  Would it vary on the extent to which Appeal Tribunals were prepared to make such inquiry?

 

27. It seems to me eminent good sense that forms should be used as approved and prescribed by the Secretary of State with the view to there being certainty as to what was being sought, and thereafter certainty as to approach of the Tribunal addressing that particular claim.”

 

There is obviously force in those observations.  But where the question whether a disablement is due to service has in fact been considered by a medical practitioner on an application for review, it is not obvious that the consequence of not having submitted a form referring to that disablement should be ineligibility for any disablement pension in respect of that disablement.  If the Secretary of State wishes that to be the consequence, and therefore to have a different approach to applications for review from the approach taken in respect of initial claims, the Service Pensions Order should make that clear. 

 

61. However, it does not follow from my approach to article 35(6) that, under the legislation as it now stands, the commencing date of assessments of disablement made on the application for review must be the same in respect of every disablement.  It is implicit that, where, for instance, a decision is found to have been flawed by official error, paragraph 1(7) of Schedule 3 applies so as to allow the revised award made on the review to be backdated only to the extent that the review is related to the official error.  Otherwise a claimant would be given an unwarranted advantage by comparison with other claimants in relation to other parts of the decision.  Thus, in the present case where the official error vitiated only the decision that the claimant’s left ankle injury and arthralgia in his left ankle were not due to service, paragraph 1(7) operates to enable a revised award to be backdated insofar as it was based on an assessment of other disablement arising out of those conditions but does not operate so as to enable a revised award to be backdated insofar as it was based on a revised assessment of disablement or a new assessment of disablement in respect of unrelated conditions. 

 

62. In the present case, disablement due to arthralgia in the claimant’s right knee and arthralgia in his right hip had been accepted by the Secretary of State as having arisen out of the injury to the left ankle and so was related to the official error, just as increased disablement in the left ankle would have been.  Entitlement in respect of those two conditions depended entirely on acceptance of the claimant’s case in respect of his left ankle.  Accordingly, the Secretary of State and the First-tier Tribunal erred in deciding that disablement arising from each of those conditions could not be taken into account in the revised award and therefore erred in not making assessments of disablement in respect of those two conditions for any period before 5 January 2009.  There is no point in making nil assessments retrospectively (because they cannot affect the amount of a revised award) so that the material date from which an assessment should have been made in respect of each of those disablements was the date from which disablement in respect of the condition was to be assessed at at least 1%.

 

63. On the other hand, the assessments in respect of the corneal abrasions were unrelated to the official error. It is argued on behalf of the claimant that it ought to have been found that there was an official error in respect of the right corneal abrasion because the claimant had referred in his claim to “sore eyes” in the plural when stating in his 1996 claim form what conditions had been treated at hospitals.  However, while the fact that he had received treatment in respect of both eyes might have indicated that both eyes had been injured in the 1983 incident, it did not follow that there was still any injury or disablement present at the date of claim. I am therefore satisfied that both the revised assessment in respect of the left corneal abrasion and the new assessment in respect of the right corneal abrasion were rightly made only from 5 January 2009. 

 

64. Turning to the arthralgia in the claimant’s right ankle and foot, accepted as due to service following consideration of the Further Condition Claim Form submitted on 25 February 2010 (in which the claimant had referred to his right foot without separately mentioning the right ankle), I have already suggested that the First-tier Tribunal’s decision that a claim (or application for review) had been made for arthralgia in his right ankle on 5 January 2009 was based on a misunderstanding but that, if a claim was required, there were grounds for applying paragraph 10 of Schedule 3 and taking a commencing date of 5 January 2009 even though the claim was not made until 25 February 2010.  However, since a claim was not required and since the question whether the claimant was suffering disablement in his right ankle due to service was in fact considered by the medical practitioner in the medical examination in 2009 (when he found there was no disablement at all in the right ankle), the Secretary of State erred in not making a decision in respect of that condition on 10 December 2009.  It is unnecessary to consider whether he should be taken on the appeal against that decision to have decided that the claimant was not suffering from arthralgia in his right ankle because the claim made on 25 February 2010 can be treated as an application for review of the decision made on 10 December 2009 and the appropriate decision made on the appeal from the later decision.  If, as the Secretary of State appears to accept, paragraph 1(7) of Schedule 3 enables the commencing date of an award on review to be made from the date that should have been the commencing date of the decision being reviewed, the commencing date of the assessment of disablement in respect of the injury to right ankle would have been the date from which the extent of disablement was at least 1%.

 

65. It is also arguable that the distinction the First-tier Tribunal drew between the arthralgia in the right ankle and the arthralgia in the right foot was too fine.  I leave the panel to whom this case is remitted to consider that question.  If it is not the case that arthralgia in the right foot must have been considered by the medical practitioner in 2009 as part of his consideration of arthralgia in the right ankle, then the assessment of disablement was rightly made from 25 February 2010, which is the first time that the issue was raised by the claimant.

 

66. These last two points may be fairly academic because, even if the First-tier Tribunal accepts that the claimant was suffering from some disablement in both his right ankle and right foot at the time of the medical examination in late 2009, despite what the medical practitioner said in the report, it seems unlikely that the assessment of disablement in respect of such disablement would be significant and it might even be nil.  Indeed, I accept that it may be unrealistic to expect the Secretary of state or the First-tier Tribunal to make very precise findings as to the date of onset of disablement of disablement in different parts of the body, just as it is unrealistic to expect there to be very precise assessments of disablement.  The precision required is no greater than is necessary to make a fair assessment that is an adequate basis for an award of a disablement pension.  Thus, in a case like the present, it might be sufficient for a tribunal to say: “We accept that over a period from x to y the claimant developed arthralgia in his right hip, knee, ankle and foot as a consequence of his left ankle injury and we assess the overall percentage in respect of that disablement as z per cent.”, provided there was some explanation for the dates and figure.  The practical point in the present case is that the First-tier Tribunal was not, as it believed, barred by any technicality from taking account of disablement form those conditions (other than possibly arthralgia in the right foot) from the date disablement developed.  Although an assessment of disablement in respect of those conditions might not have been high, it is not unrealistic to think that it might have led to an increase in the composite assessment of only 6-14% in at least the later part of the period before 5 January 2009.

 

67. Finally, I should add that I do not consider my approach to be inconsistent with the decision of Davis J in Clancy.  In that case, Mr Clancy had served in the armed forces until 1992.  Upon discharge, he made an immediate claim for a disablement pension under the 1983 Service Pensions Order in respect of lower back pain.  In 1997, he applied for a review, mentioning headaches and numbness in his fingers, which he attributed to the same cause as his lower back pain.  However, the Secretary of State did not make any finding as to whether the headaches or the numbness in his fingers were due to service and Mr Clancy’s application for review was not only unsuccessful but led to a reduction in the assessment being made in June 2000.  In September 2000, the claimant made a formal “claim” in respect of the headaches and numbness in his fingers.  That was rejected in December 2000.  Mr Clancy appealed against both the decisions but the two appeals were considered separately, as would then have been usual if one appeal was concerned with assessment and the other was concerned with entitlement (because the constitutions of the respective pensions appeal tribunals would have been different).  The claimant was unsuccessful in both appeals.  There was no right of appeal to the High Court in respect of assessment decisions but Mr Clancy appealed to the High Court against the dismissal of the appeal from the December 2000 decision on the ground that the tribunal had wrongly decided the case under the forerunner of article 41 of the 2006 Service Pensions Order, rather than the forerunner of article 40.  Since the second claim was brought more than 7 years after the termination of Mr Clancy’s service, this may seem surprising, but the Secretary of State appears to have accepted that he ought to have made a decision in 1997 as to whether the headaches and numbness of the fingers were due to service and that would have been within 7 years of the termination of service.  In other words, there had been what would now be found to be an official error, although, in the passage quoted above, Davis J queried whether that was really so on the facts of the case.  In any event, the argument was that there had been a claim within the 7 years, albeit on a form for applying for a review.  Davis J did not decide whether or not that was so.  He decided the case on the basis that, whether or not the relevance of the headaches and numbness of the fingers had been raised within the 1997 application for review, that application had been disposed of in the June 2000 decision and subsequent appeal whereas the case before him arose out of the claim made in September 2000.

 

68. It seems to me that the first difficulty facing Mr Clancy was that the 1997 application for review appears formally to have been concerned only with assessment.  As I have suggested above, it is doubtful whether further conditions could have been taken into account on that application but, in any event, if it was claimed that they should have been, judicial review proceedings against either the tribunal or the Secretary of State or both would have been necessary to bring the issue before the Court. The second difficulty is that to succeed in having the 2000 claim backdated, Mr Clancy had to satisfy one of the conditions of the forerunner of Schedule 3 to the 2006 Service Pensions Order.  There is no mention of those provisions in the judgment but it may be that the remarks of Davis J that I set out above were made in the context of a discussion as to whether the forerunner of paragraph 10 might have assisted Mr Clancy.  It is to be noted that the equivalent of paragraph 10(a) was in different terms before 2001 – there was also no equivalent of paragraph 1(7).  There was also no appeal to a tribunal in respect of commencing dates until 2001 so that, if as appears to have been the case the Secretary of State was not prepared to accept that the forerunner of paragraph 10 of Schedule 3 applied, judicial review proceedings would have had to have been brought.  In the absence of such proceedings, Davis J was bound to accept that the date of claim was in September 2000 and was too late to enable Mr Clancy to rely on the forerunner of article 40.  The issue that arises in the present case simply did not arise on Mr Clancy’s appeal to the High Court.

 

69. In any event, in relation to the commencing dates in this case, I am satisfied that the First-tier Tribunal erred in law.  I set aside its decision and remit the case to the First-tier Tribunal to determine the commencing dates in accordance with this decision.  The assessments of disablement in respect of each condition must run from the date from which the revised award should take account of that disablement.  I appreciate that determining the date from which a disablement became significant is not easy.  The burden of proof is on the claimant.  There is no rule that a claimant’s oral evidence must be corroborated by documentary evidence but, on the other hand, not mentioning disablement when given an opportunity to do so in a document may be an indication that the disablement either does not exist or is insignificant.  Moreover, where disablement is fairly minor, a broad brush can be taken.  Precision is not required where the commencing date can make no difference to the amount of the pension to be awarded. 

 

Assessments

 

70. In relation to the assessments of disablement, I indicated when I granted permission to appeal that I was doing so because there would need to be further assessments if the claimant succeeded in relation to the commencing dates of the assessments but I did not identify any other possible error of law in the assessments.  It is argued on the claimant’s behalf that there were other errors. 

 

71. First, it is submitted that the First-tier Tribunal has not explained the large leap from 6-14% to 50% in January 2009.  It is accepted that some of the difference is attributable to the inclusion of the effects of the disablement arising from arthralgia of the right knee, hip and ankle and from the right corneal abrasion, but it is submitted that in other respects there is a discrepancy.  By itself, I am not persuaded by this point.  First, for the reasons I have given above, the review of the assessment of disablement in respect of the claimant’s left eye could not be backdated, so that the change was solely in the assessment in respect of the injury to the left ankle, which (if the Secretary of State’s assessment was accepted) was only from 6-14% to 30%.  Secondly, article 42(5) requires assessments of 20% or more to be certified as a percentage which is a multiple of 10 and, since the First-tier Tribunal considered the claimant to be “generously” assessed from 6 January 2009, it may well have thought that the true assessment was slightly less than 30%.  Thirdly, the assessment of 6-14% was made in respect of a long period and it is clear that something of a broad brush was taken, since the precise history of the development of the condition was not clear from the documentary evidence.  The condition was clearly developing and it seems probable that the overall assessment reflected a slightly lower assessment at the beginning of the period and a slightly higher one at the end.  My attention was drawn to R. (Viggers) v Secretary of State for Defence [2009] EWCA Civ 1321, where a decision of a tribunal was quashed because it had failed to explain why an assessment of 6-14% was appropriate for a period from 1976 to 1995 when an assessment of 40% had been made by the Secretary of State in respect of the immediately following period from 1995.  In my judgement, that case is distinguishable because the Pensions Appeal Tribunal did not make any reference to the assessment of 40% at all and because the difference between the assessments in that case was greater.  At least at first sight, the assessments in that case did not appear to be consistent with each other, whereas I do not consider that to be so in the present case.

 

72. Secondly, it is submitted that the First-tier Tribunal’ has not adequately explained the 6-14% assessment and, in particular, that it was wrong to rely on the claimant’s discharge medical when that was in 1989 and the period of assessment did not start until 1996 and when the medical was clearly inaccurate in some respects.  However, it seems to me that, in broad terms, the assessment is explained by the tribunal’s reference to the claimant’s work history in Canada, which it clearly considered implied that the extent of his disablement then was not vey high.  It was entitled to consider that the extent of his disablement had not increased sufficiently between his leaving Canada in 2007 and January 2009 to justify making a stepped assessment  in respect of the period from 1996 to 6 January 2009 or assessing disablement at 30% from an earlier date, either of which it could properly have done.

 

73. Thirdly, it is submitted that a stepped assessment in respect of the period from January 2009 to February 2010 would have been appropriate to reflect increasing disablement.  However, the First-tier Tribunal was entitled to adopt a figure for the whole period, particularly when it regarded the figure as “generous”.

 

74. Fourthly, it is submitted that the First-tier Tribunal erred in failing to have proper regard to the deterioration in the claimant’s condition revealed by comparing the reports of the medical examination in November 2009 and that in May 2010.  In particular, reference is made to the finding that visual acuity had reduced from 6/12 to 6/24 in both eyes and that the distance the claimant could walk had apparently been reduced from 200 metres to 50 metres.  The First-tier Tribunal did not mention the apparent deterioration in the eyesight, but it seems to me that the explanation for that lies in the First-tier Tribunal’s findings that the right corneal abrasion “did not impinge on his visual acuity in that eye” and that the left corneal abrasion “minimally affected” his visual acuity in his left eye.  Moreover, it found that “[t]he dry eyes for which he receives medication is not related to his accepted injury”.  In relation to the deterioration in his mobility, the First-tier Tribunal plainly did accept that there was some deterioration and the reason that it did not increase the assessment was that it considered the earlier assessment had been too high.

 

75. However, it seems to me that there is force in the submission made on behalf of the claimant that the First-tier Tribunal has not recorded adequate findings of fact as to the claimant’s mobility and it is not clear, for instance, whether it actually accepted the estimates of the claimant’s ability to walk made by the two medical practitioners or whether it accepted the claimant’s oral evidence (although it does not appear to have asked the claimant for a very detailed description of his ability to get about).  No specific mention had been made of the Secretary of State’s finding that the arthralgia in the right knee had increased substantially – the First-tier Tribunal referred only to the right ankle and right foot as new conditions (although it had in fact decided that the right ankle should have been taken into account in the earlier assessment).  It is true that the First-tier Tribunal did rely on the detailed clinical findings of the medical examiners and recorded both that the claimant wore a rigid left ankle brace and used two walking sticks and that he still drove a car and had, during part of the relevant period, been seeking work as an HGV driver.  However, the second medical practitioner had recorded in respect of the left ankle –

 

“this has worsened, and he awaits fusion/reconstruction, and possible amputation.  It is causing considerable walking restriction and pain, and the problem is clearly severe.  The progress depends on the type of surgery performed later this year, and the outcome of that.”

 

It is submitted on behalf of the claimant that, if the examiner’s estimate of an ability to walk only 50 metres was accepted, the assessment of disablement at 50% was too low and simply inconsistent with the findings.

 

76. In this regard, the First-tier Tribunal said that –

 

“He has useful walking ability …  His upper body function is unimpaired as is his cognitive function and communication ability.”

 

Disablement is assessed on a scale whereby 100% represents the degree of disablement necessary for receipt of the maximum amount of disablement pension.  In article 42(5) of the 2006 Order, that is described as “total disablement”, but it is actually less than that because Part V of Schedule 1 to the Order makes it clear that very severe, but less than total, disablement attracts an assessment of 100% and it seems obvious that other assessments should not be inconsistent with the prescribed assessments of disablement caused by specified injuries.  Materially, for instance, “double amputation through lower leg lower than 13 centimetres below knee” is assessed at 100% and “amputation of both feet resulting in end bearing stumps is assessed at 90%”.  In both cases, the claimant might have unimpaired upper body function and cognitive function and communication ability.  Thus, severe loss of mobility might be thought to justify a fairly high award, notwithstanding that only lower limb functions are impaired.  I have no reason to suppose that the First-tier Tribunal was not well aware of that point.  But one is left with the question as to how much useful walking ability the First-tier Tribunal did consider him to have at, say, 1 January 2007 and 1 January 2008 as well as at 5 January 2009 and 25 February 2010.  There are, of course, limits to the detail of findings that can be expected (see for instance Baron v Secretary of State for Social Services, reported as an appendix to R(M) 6/86), especially retrospectively, and complete accuracy may be unattainable; but the broad factual basis upon which a decision is made ought to be clear.

 

77. The relative vagueness of the findings in this case is all the more unsatisfactory because the First-tier Tribunal said –

 

“We cannot ignore the fact that [the claimant] is grossly obese at approximately 18 stones and it must contribute to the load on its joints.”

 

It then did not explain what, if any, effect not ignoring the obesity had on its assessment.  If it discounted the assessment on that ground, it should have indicated by how much and on what precise factual and legal basis. 

 

78. Finally, there is a further issue relating to assessment upon which I invited argument.  This is as to the form in which the degree of disablement is expressed.  By virtue of article 42(5), degrees of disablement of 20% or more must be certified as a multiple of 10% and lower degrees must “except in a case to which Table 1 of Part III of Schedule 1 applies be certified in a manner suitable for the purposes of Table 2 of Part III of [Schedule 1]”.  Table 2 of Part III of Schedule 1 specifies the gratuities to be awarded where disablement is assessed at, respectively, 1-5%, 6-14% or 15-19%.

 

79. It is the usual practice of the Secretary of State to express assessments of disablement of less than 20% in those bands except where the injury being assessed is listed in Table 1.  This is so even where the assessment is part of a composite assessment.   In fact, the legislation does not expressly require assessments of the individual elements of a composite assessment to be expressed separately at all and the First-tier Tribunal did not do so in its decisions in this case.

 

80. It was common ground before me that the Secretary of State’s approach was permissible but not the only legitimate approach.  In principle, the assessment could be expressed as for instance, 3% or 9%, as in Table 1.  The assessment of disablement is not an exact science and, particularly where assessment is assessed in respect of a single disablement, there is merit in certifying the assessment as falling within a range.  However, it seems to me that there are potential difficulties where there is a composite assessment and this case perhaps provides an illustration.

 

81. Arithmetically, an assessment of 30% for one condition and 1-5% for each of four other conditions is capable of amounting, with rounding, to any of 30%, 40% or 50%.  There seems to be a tendency to add the higher ends of the bands together, which may lead to overassesment and it was the First-tier Tribunal’s description of the assessment of 50% as generous that led me to invite submissions on this issue.  If there is overassessment and a claimant’s condition subsequently deteriorates, he or she may find that the new assessment is no higher than the earlier one which, as here, may lead to an appeal on the ground that the Secretary of State or, as in this case, the tribunal failed to take account of the deterioration.  Moreover, expressing the assessments as single figures or smaller bands indicates the relative importance of smaller disablements more accurately.  I suggest, therefore, that there may be value in sometimes expressing the assessments in that way. I do not wish to be prescriptive.  I merely suggest that there may be cases where using the bands in Table 2 is not the best way of explaining a composite assessment.

 

82. There are of course, as the Secretary of State reminds me, other complications with composite assessments, such as the extent to which assessments overlap or interact with each other, so that a composite assessment may not necessarily be the simple sum of its parts.  Using bands may avoid the need for the Secretary of State to descend into too much detail in those cases.  On the other hand, a tribunal that has a duty to provide reasons for its assessment if asked to do so may at least sometimes be required to explain how it has taken overlapping or interacting conditions into account.  The duty to provide reasons may also sometimes require it to explain the individual elements of an assessment.  Thus, in the present case, where the First-tier Tribunal was expressing reservations about the Secretary of State’s assessment, it would have been desirable for it to indicate whether it had reservations about all the elements of the Secretary of State’s composite assessment or just some of them.  It also seems to me that the First-tier Tribunal ought at least to have indicated separately the degree of disablement in respect of the corneal abrasions on one hand and the degree of disablement due to the left ankle injury and the consequent arthralgia in his right hip, knee, ankle and foot on the other hand.

 

83. In any event, on balance, I am satisfied that the reasons given by the First-tier Tribunal for the assessments in this case were inadequate and I set aside those decisions on that ground as well as on the ground that certain conditions.  I stress, however, that it by no means clear that the First-tier Tribunal’s assessment of disablement at 50% from 5 January 2009 to 18 January 2012 was in fact too low.  (I should mention for completeness that neither party criticised the decision to make a fixed term assessment in view of the proposed surgery.)

 

84. The panel of the First-tier Tribunal to whom this case is now referred will doubtless have regard to the issues that have been raised on this appeal.  In particular, consideration should expressly be given as to whether 6-14% adequately assesses disablement due to the claimant’s left ankle injury in respect of the latter part of the period before 5 January 2009 and, to the extent possible, the assessment of disablement should be based on findings as to the extent to which the claimant’s mobility has been affected. 

 

Unemployability allowance

 

85. The First-tier Tribunal’s decision that the claimant was not entitled to an unemployability allowance (generally known as an “unemployability supplement”) was obviously correct because, by virtue of article 12(2)(b) entitlement depends on the assessment of disablement being at least 60% and the First-tier Tribunal had reduced the 60% assessment made by the Secretary of State to 50%.  However, the First-tier Tribunal did not confine itself to dismissing the claimant’s appeal in respect of an unemployability allowance on that ground and, indeed, it did not rely on that ground at all.  It only addressed the question whether the claimant was “unemployable” within the meaning of article 12(1).

 

86. I granted permission to appeal because the question of entitlement to an unemployability allowance might become a live issue again if the claimant succeeded on his other appeals and there seemed two arguable points of law arsing from the First-tier Tribunal’s reasoning, which I identified as follows –

 

“Firstly, the First-tier Tribunal referred to activities which the claimant carried out with the help of his carer and it is arguable that it ought to have made clearer findings as to what the claimant could do without such help.  Secondly, it is arguable that the First-tier Tribunal erred in excluding all consideration of the effects of conditions other than those accepted as attributable to service, because it is arguable that a person is entitled to unemployability supplement if the combined effect of two disabilities, one due to service and the other not, is to make a person unemployable even if neither would by itself.”

 

The claimant adopted those grounds on this appeal. 

 

87. The first arises because the First-tier Tribunal, having reiterated that the claimant had no upper limb disability or cognitive or communication impairment and that his visual disability was not such as to prevent him from driving, said –

 

“[The claimant] told the tribunal that he would be unable to undertake even sedentary employment due to his accepted conditions preventing him from sitting for any useful period, or to deal with paperwork or information displayed via IT equipment in any practical way.

 

[The claimant] also told the tribunal that he was only able to read large print material for short periods, and could only interact with written material using IT equipment with the assistance of a carer.

 

The Tribunal noted that, with the assistance of his carer, [the claimant] had been able to assimilate a large amount of information and had himself prepared the relevant paperwork for his numerous appeals and communications with, for example, the SPVA.  We therefore accept the SPVA’s submissions that [the claimant] would be able to cope with sedentary work as long as he could move around regularly.  We do not accept [the claimant’s] contentions that his accepted eye conditions restrict his ability to read, write and use a computer.  His visual acuity is 6/12 in both eye and the corneal scarring of the R. eye is outside the visual axis allowing normal sight in that eye.  Other problems with his eyes (dry, sore, itchy) are not due to his accepted conditions and are adequately treated with medication.

 

“The Tribunal accepted that [the claimant’s] accepted conditions would prevent him from undertaking work of a physical nature such as his previous employment as HGV driver and on construction sites.  However, the Tribunal noted that [the claimant] has gained a wide range of useful skills throughout his working career, during and after his Military Service, which could still be deployed by [the claimant] in sedentary employment, given the appropriate workplace environment, adaptations and opportunities for breaks.”

 

88. In relation to the first ground of appeal, the Secretary of State submits that the reference to a carer was recording the fact that the claimant was assisted by his carer.  In reply, the claimant argues that that ignores the prominent position that the reference to a carer takes.

 

89. Just reading the first two sentences of the third paragraph that I have set out, I would accept the claimant’s argument.  In particular, the use of the word “therefore” in the second sentence would tend to suggest that the First-tier Tribunal had reached its conclusion solely on the basis of the observation recorded in the first sentence without first considering whether the claimant could perform a useful proportion of the relevant tasks without a carer.  However, when one then reads the rest of the reasoning, including the findings that the claimant’s cognitive and communication functions were unimpaired, that his accepted conditions did not prevent him from reading, writing and using a computer and that he had gained a wide range of useful skills, it is plain that the First-tier Tribunal did consider that the claimant could carry out the necessary tasks without a carer.  I therefore accept the Secretary of State’s submission.

 

90. In relation to the second ground of appeal, the claimant’s own letters and grounds of appeal have stressed the effects of his migraine as a reason for his not being able to work for realistic periods.  Migraine, of course, is not currently an accepted condition and I must therefore decide this case on that basis even though the claimant attributes migraine to his eye injuries.  The First-tier Tribunal has not mentioned migraine at all and nor has it made a finding as to whether the claimant was in fact unemployable, albeit not as a result of disablement due to service..  It seems to me that, if a person suffers from disablement from two causes, neither of which would by themselves make him or her unemployable but both of which do when combined, it is not right to say that neither of the causes of disablement makes the person unemployable.  One may have to consider which comes first as well as which is the greater cause.  This may not be an issue that arises very often in this context but, it might arise when there is a post-service development of a constitutional condition and a late development of disablement due to service.  Therefore, it may not be adequate reasoning to say that the disablement due to the accepted conditions is not such as, by itself, to make the claimant unemployable.

 

91. However, on the facts of this case, the claimant faces the difficulty that if his migraines are so severe as to make him incapable of doing sedentary work (which need not necessarily be clerical work), they must inevitably also be sufficiently severe to prevent him from doing the type of work that the First-tier Tribunal accepted that he was unable to do as a result of his disablement due to service.  This is therefore not a case where disablement due to accepted conditions makes unemployable a person who would otherwise be employable.  Therefore, even if there is a gap in the First-tier Tribunal’s reasoning, it is not material.

 

92. Accordingly, I dismiss the claimant’s appeal in respect of unemployability allowance.  This does not, of course, prevent the claimant from making a new claim if migraine is accepted as due to service and if the degree of his disablement is again assessed at at least 60%.

 

Conclusion

 

93. The claimant’s appeal in respect of unemployability allowance is dismissed but the other appeals are allowed.  The First-tier Tribunal must therefore re-determine the appeals in respect of the commencing dates and the assessments.  The assessments of disablement must run from the dates from which an award should be made in respect of that disablement, which are as follows –

 

Injury	Commencing date of assessment or review of assessment
Injury left ankle	23 April 1996
Left corneal abrasion Right corneal abrasion	5 January 2009
Arthralgia right knee Arthralgia right hip Arthralgia right ankle	the later of 23 April 1996 and the date from which disablement was at least 1%
Arthralgia right foot	either the later of 23 April 1996 and the date from which disablement was at least 1% or 25 February 2010   (see paragraph 65)
Any increase in disablement between 10 December 2009 and 14 June 2010	the later of 25 February 2010 and the date of the increase

 

 

 

 

Mark Rowland

26 September 2013

 

 

APPENDIX

 

EXTRACTS FROM ARTICLES 6, 7, 34, 35, 37, 40, 41, 42, 43, 44, 46 OF, AND SCHEDULE 3 TO, THE NAVAL, MILITARY AND AIR FORCES ETC. (DISABLEMENT AND DEATH) SERVICE PENSIONS ORDER 2006 (SI 2006/606)

 

“Retired pay or pension for disablement

6. A member of the armed forces the degree of whose disablement due to service before 6th April 2005 is not less than 20 per cent may be awarded retired pay or a pension at whichever of the rates set out in the Table in Part II of Schedule 1 is appropriate to his rank or status and the degree of his disablement.

 

Gratuity for minor disablement

7. A member of the armed forces the degree of whose disablement due to service before 6th April 2005 is less than 20 per cent may be awarded a gratuity in accordance with the appropriate table in Part III of Schedule 1 in force at the time of the award.”

 

“Making of claims

34.—(1) Subject to paragraphs (2A), (4) and article 35, it shall be a condition precedent to the making of any award of any pension, allowance or supplement mentioned in paragraph (2) (including any such award which follows an earlier award or which follows a period which, had there been an award for that period, would have ended in accordance with article 33(1)) that the person making the claim shall have—

(a) completed and signed a form approved by the Secretary of State for the purpose of claiming that pension, allowance or supplement payable under this Order; and

(b) delivered that form either to an appropriate office of the Secretary of State or to an office of an authorised agent.

  (2) The pensions, allowances and supplement to which paragraph (1) applies are—

(a) retired pay or a pension payable under article 6;

(b) a gratuity under article 7;

(c) a constant attendance allowance payable under article 8;

(d) a clothing allowance payable under article 11;

(e) an unemployability allowance payable under article 12;

(f)   an allowance for lowered standard of occupation payable under article 15;

(g) a treatment allowance payable under article 17;

(h) an allowance where abstention from work is necessary following treatment in a hospital or similar institution under article 18;

(i)   an allowance for part-time treatment under article 19;

(j)   a mobility supplement payable under article 20;

(k) a surviving spouse's or surviving civil partner's pension payable under article 23;

(l)   a pension payable to a dependant who lived as a spouse or a dependant who lived as a civil partner under article 24;

(m) a rent allowance payable to a surviving spouse, surviving civil partner, dependant who lived as a spouse or dependant who lived as a civil partner under article 25;

(n) a children's allowance payable under article 28;

(o) a children's allowance or an orphan's pension payable under article 30;

(p) an award of funeral expenses under article 32.”

 

“Cases where claims are not required

35.—(1) A claim for the pensions, allowances and supplements mentioned in the following paragraphs of this article shall not be required if the conditions set out in the relevant paragraph are satisfied.”

 

  “(6) Where a claim has been made for retired pay or a disablement pension under article 6 on the basis of a particular disablement which is alleged to have been due to an injury which is attributable to or aggravated by service, no separate claim shall be required in respect of any other disablement which appears, upon an examination which is conducted by a medical practitioner before the claim is determined, to have been so attributable or so aggravated, whether due to that or another injury.”

 

“Date of claim

37.—(1) In this Order “date of claim” means, subject to the following paragraphs of this article, the date on which a claim is received by the Secretary of State or by an authorised agent.

  (2) Where—

(a) not more than 3 months earlier than the date referred to in paragraph (1), an enquiry is made in person, in writing or orally to the Secretary of State or to an authorised agent about claiming any pension, retired pay, allowance or supplement for a named person; and

(b) that enquiry is made by the person who subsequently makes the claim or by a relative of his or by a representative of a charitable organisation

then “date of claim” means the date on which the enquiry is received by the Secretary of State or, as the case may be, the authorised agent.

  (3) Where—

(a) a person is awarded a disablement pension or retired pay under article 6; and

(b) within three months of the notification of that award being given or sent to him;

(c) he makes a claim for an allowance specified in article 34 or a mobility supplement under article 20

then “date of claim” for the purposes of determining entitlement to that allowance or supplement, means the date of claim for the disablement pension or retired pay.

  (4) Where—

(a) a person is awarded a disablement pension or retired pay under article 6; and

(b) subsequently he makes a claim for an allowance under article 34 or a mobility supplement under article 20;

(c) but not within three months of the notification of that award being given or sent to him

then “date of claim” for the purpose of determining entitlement to that allowance or supplement means, subject to paragraph (5), the date on which the claim for the allowance or supplement is received by the Secretary of State or, as the case may be, the authorised agent.

  (5) Where—

(a) not more than 3 months earlier than the date referred to in paragraph (4), an enquiry is made in person, in writing or orally to the Secretary of State or to an authorised agent about claiming an allowance specified in article 34 or a mobility supplement under article 20; and

(b) that enquiry is made by the person who subsequently makes the claim or by a relative of his or by a representative of a charitable organisation

then “date of claim” means the date on which the enquiry is received by the Secretary of State or, as the case may be, the authorised agent.

  (6) Where a claim or an enquiry referred to in this article is made by post in the United Kingdom and the arrival of that claim or enquiry at the appropriate office of the Secretary of State or the authorised agent is delayed by postal disruption caused by industrial action, whether within the postal service or elsewhere, the claim shall be treated as having been received on the day on which it would have been received if it has been delivered in the ordinary course of the post.

  (7) In this article “charitable organisation” includes a company limited by guarantee with charitable objects.”

 

“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, or the death occurs of that member and a claim is made (at any time) in respect of that death, such disablement or death, as the case may be, 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) the death was due to or hastened by—

(i)   an injury which was attributable to service, or

(ii) the aggravation by service of an injury which existed before or arose during service.”

 

“Entitlement where a claim is made in respect of a disablement, or death occurs, more than 7 years after the termination of service

41.—(1) Except where paragraph (2) applies, where, after the expiration of the period of 7 years beginning with the termination of the service of a member of the armed forces, a claim is made in respect of a disablement of that member, or in respect of the death of that member (being a death occurring after the expiration of the said period), such disablement or death, as the case may be, shall be accepted as due to service for the purpose of this Order provided it is certified that—

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

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

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

(b) the death was due to or substantially hastened by

(i)   an injury which was attributable to service, or

(ii) the aggravation by service of an injury which existed before or arose during service.”

 

“Determination of degree of disablement

42.—(1) The following provisions of this article shall apply for the purposes of the assessment of the degree of the disablement of a member of the armed forces due to service before 6th April 2005.”

 

 “(5) The degree of disablement assessed under the foregoing provisions of this article shall be certified by way of a percentage, total disablement being represented by 100 per cent (which shall be the maximum assessment) and a lesser degree being represented by such percentage as bears to 100 per cent the same proportion as the lesser degree of disablement bears to total disablement, so however that a degree of disablement of 20 per cent or more shall be certified at a percentage which is a multiple of 10, and a degree of disablement which is less than 20 per cent shall, except in a case to which Table 1 of Part III of Schedule 1 applies, be certified in a manner suitable for the purposes of Table 2 of Part III of that Schedule.”

 

 “(13) Where—

(a) a member has sustained a minor injury specified in Table 1 of Part III of Schedule 1 as well as some other disablement due to service the degree of which is less than 100 per cent; and

(b) a composite assessment of the degree of the disablement from both causes is no higher than the assessment for the other disablement alone

this article shall have effect so as to authorise an award under article 7 in respect of the minor injury as well as an award under article 6 or 7 in respect of the other 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 War Pensions (Administrative Provisions) Act 1919 or the Pensions Appeal Tribunals Act 1943 or established under the Tribunals, Courts and Enforcement Act 2007 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.”

 

  “(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.”

 

“Commencing dates of awards

46. Schedule 3 has effect with respect to commencing dates of awards under this Order.”

 

“SCHEDULE 3

 

COMMENCING DATES OF AWARDS

 

1.—(1) Subject to the following provisions of this Schedule, an award or an adjustment of an award shall have effect from such date as may be specified in the award, being a date not earlier than the date specified in subparagraph (2) which is relevant in the claimant's case.

  (2) The date specified in this subparagraph is whichever date is the latest in time of the date—

(a) following the date of termination of service or, in a case under Part III, following the date of death of the member;

(b) of the claim;

(c) of the last application for review; or

  (3) Where in a case to which subparagraph (1) applies, the claimant satisfies the requirements of subparagraph (4) the award shall have effect from the date the subparagraph is satisfied.

  (4) This paragraph is satisfied where the date of claim or application for review is made within 3 months of—

(a) the date of termination of service, or the date of death where an award is made in respect of a member's death; or

(b) except where paragraph (a) applies, the date of notification of a decision on the claim or review.

  (5) Where the requirements of subparagraph (4) are satisfied on more than one occasion and the occasions on which they are satisfied are consecutive, subparagraph (3) shall apply as from the first occasion on which subparagraph (4) is satisfied.

  (6) Subject to subparagraphs (7), (8) and (9), where an award is adjusted upon review instigated by the Secretary of State, the adjustment shall take effect from the date of the review.

  (7) Where an award is reviewed as a result of a decision (“the original decision”) which arose from an official error, the reviewed decision shall take effect from the date of the original decision and for this purpose “official error” means an error made by Secretary of State or any officer of his carrying out functions in connection with war pensions, defence, or foreign and commonwealth affairs, to which no other person materially contributed, including reliance on erroneous medical advice but excluding any error of law which is only shown to have been an error by virtue of a subsequent decision of a court.

  (8) Where an award is suspended pursuant to Article 65(3) but, on one of the conditions specified in article 65(5) being satisfied, the Secretary of State reviews the award, the Secretary of State shall adjust the award in accordance with subparagraph 6 and shall make a backdating payment in respect of the award, which payment shall—

(a) apply in respect of the period between the date on which the suspension took effect and the date of the review, and

(b) be calculated by reference to the rate at which the award was in payment prior to its suspension.

  (9) Where, a pensioner's award has been cancelled (pursuant to Article 66(1) but, following submission of a further claim (in accordance with Article 66(2) the Secretary of State has made a further award in the pensioner's favour, such award shall take effect and payment shall be made—

(a) from the date on which the suspension took effect,

(b) at such rate as the Secretary of State determines to be appropriate when making the further award.

  (10) For the purposes of this paragraph, a claim shall be treated as made for a pension or allowance for which a claim is not required by virtue of article 35 on the date on which the relevant conditions of entitlement to the pension or allowance first became satisfied.”

 

“10. Except in a case to which paragraph 6, 7 or 9 applies, where a claimant satisfies the Secretary of State that—

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

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

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

 

(Something seems to have gone wrong with the brackets in paragraph 1(9) OF Schedule 3 in the Queen’s Printer’s version of the statutory instrument.)