Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CAF/1450/2011

ADMINISTRATIVE APPEALS CHAMBER

 

Before Upper Tribunal Judge Rowland

 

 

The claimant appeared in person.

 

The Secretary of State was represented by Ms Galina Ward of counsel, instructed by the Treasury Solicitor.

 

 

Decision:  The claimant’s appeal is allowed.  The decision of the First-tier Tribunal dated 17 February 2011 to assess disablement at 40% from 12 March 2009 to 16 February 2013 is set aside and there is substituted an assessment of 50% from 8 December 2008 for an indefinite period, which may be taken to be a long-term interim assessment.

 

 

REASONS FOR DECISION

 

Background

 

1. A considerable measure of agreement has been reached on the issues arsing in this case and it is therefore not necessary to set out the facts or recite the evidence in great detail.  However, the procedural history of the case is important.

 

2. The claimant joined the Army as a boy soldier in 1964 and subsequently served in the Royal Artillery and then the Army Air Corps as a helicopter pilot, retiring in 1992 having attained the rank of Warrant Officer I.  Upon retirement, he claimed a disablement pension under the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 1983 (SI 1983/883), which has since been replaced by the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 2006 (SI 2006/606).  A pension was awarded with effect from 28 October 1992, initially based on a composite assessment of disablement of 20% in respect of three conditions and then from 1 January 1993 on a composite assessment of 40% in respect of five conditions.  On 17 January 2000, a further composite assessment of 40% was made with effect from 3 December 1998 in respect of six conditions.  These remain the six conditions accepted as attributable to service.  They are bilateral chondromalacia patellae, injury right ankle (1966), right tennis elbow, osteoarthritis of finger joints, injury right shoulder (1968) and arthralgia both hips.  Yet another composite assessment of 40% was made in respect of those conditions on 26 June 2006 with effect from 4 April 2006 and was upheld by a decision of a Pensions Appeal Tribunal on 7 December 2007, although it appears that the tribunal decided that the interim assessment should be made effective only until 6 December 2008.

 

3. On 11 March 2009, another long-term interim composite assessment of 40% was made by the Secretary of State with effect from 7 December 2008.  The claimant appealed.

 

4. Meanwhile, a change of label referring to Gulf War Syndrome on 11 May 2009 seems to have triggered yet another decision in which it was said that disablement was assessed at 40% from 7 December 2008.  I doubt that that was intended to be a new assessment decision rather then just a change of label and, indeed, I have some doubt as to whether a change of label in respect of disablement already accepted as due to service requires any formal decision.  In any event, if the decision of 11 May 2009 did include a new assessment decision, it was presumably made on a review of the decision of 11 March 2009 and merely maintained that decision.  Unfortunately it appears that, when the decision of 11 May 2009 was issued to the claimant, it was sent to the wrong address with the result that the claimant only discovered about it at the hearing before the First-tier Tribunal of his appeal against the decision of 11 March 2009.

 

5. That hearing took place on 21 October 2009.  The decision notice issued by the First-tier Tribunal on that day stated that the interim assessment made by the Secretary of State on 11 March 2009 was upheld “for the period 11/03/2009 until 11/03/2009”.  However the reasoned decision signed on 1 November 2009 stated that the First-tier Tribunal had made an interim assessment in respect of “the period starting 7 December 2008 and ending 7 December 2008”.  It explained that the First-tier Tribunal considered that the assessment of 40% was correct but, because the claimant had not had an opportunity to appeal against the decision of 11 May 2009, it had decided that the assessment decision it made “should start and finish on the same day”.  Plainly, therefore, the date on the decision notice was a mistake.  The decision was intended to be for only one day and it made no sense for that day to be the date on which the Secretary of State’s decision had been made.  The first day from which the decision had been effective was clearly more appropriate.  However, it appears that the Secretary of State did not notice the discrepancy between the dates.

 

The present proceedings

 

6. When, on 31 March 2010, the Secretary of State made yet a further long-term interim assessment of 40% in respect of the six accepted conditions, the assessment was made with effect from 12 March 2009.  The claimant again appealed.  The First-tier Tribunal dismissed the appeal on 17 February 2011, save insofar as it substituted an interim assessment expiring on 16 February 2013 for the long-term interim assessment.  At the same time, it dismissed an appeal against the rejection of a further claim for disablement pension in respect of osteoarthritis of the lower spine.  The claimant sought permission to appeal to the Upper Tribunal against both decisions of the First-tier Tribunal.  The First-tier Tribunal refused permission in both cases and, at an oral hearing on 2 May 2012, I, too, refused permission to appeal against the decision in respect of the new claim.

 

7. However, on consideration of the case on the papers on 1 November 2011, I granted permission to appeal against the assessment decision on the ground that it was arguable that the reasoning was either flawed or inadequate in the light of the evidence of deterioration of the claimant’s mobility, even having regard to the point that some of the claimant’s disability was due to non-service factors such as the osteoarthritis of the lower spine.  This is the appeal that is now before me.

 

8. On 22 November 2011, the Secretary of State’s representative wrote to the Upper Tribunal stating –

 

“Following receipt of the Judge’s Directions and having considered the tribunal’s reasons for decision, [the claimant’s] comments in his application, the report of the War Pensions Mobility Supplement examination and the consultant orthopaedic surgeon, [the claimant’s] assessment has been reviewed.”

 

There was enclosed with that letter a copy of a letter written to the claimant on 21 November 2011, purporting to award him a disablement pension based on a 50% long term interim assessment effective from 12 March 2009.  I was asked whether I “would agree that the fresh award disposes of the issue under appeal”.

 

9. I did not agree, because I doubted the Secretary of State’s power to make the decision notified to the claimant on 21 November 2011.  Since the Secretary of State maintained that the decision was valid, I acceded to his suggestion that there be an oral hearing at which I could hear argument as to the validity of the decision, the propriety of making long-term interim assessments and the way in which assessments in respect of minor disablement are expressed within composite assessments.  Meanwhile, I asked the claimant whether he was content with the new award so that, if I considered it necessary to do so, I could give a decision in the same terms.  He is content with the assessment but has argued that it should have been made from an earlier date.  His practical interest in the appeal is therefore fairly limited but the general issues raised were of wider significance and of greater practical interest to the Secretary of State.

 

Reviews and appeals to the Upper Tribunal

 

10. I do not doubt that, where an appeal is brought against a decision of the Secretary of State or of a tribunal and the decision under appeal is reviewed and revised, the appeal may lapse, at least in part.  Whether or not it does so depends on the terms of the statutory scheme in issue and the circumstances of the case.  Where a decision of the Secretary of State is revised while an appeal against it is pending before the First-tier Tribunal, the position is governed by rule 22 of the Tribunal Procedure (First-tier Tribunal) (War Pensions and Armed Forces Compensation Chamber) Rules 2008 (SI 2008/2686, as amended), the practical effect of which is that the appeal lapses unless the claimant objects to the revised decision, in which case the appeal proceeds as an appeal against the revised decision.  There is no equivalent provision in relation to appeals from the First-tier Tribunal to the Upper Tribunal but the conventional approach taken in all jurisdictions in the Administrative Appeals Chamber is broadly that an appeal lapses if a review makes the appeal pointless and that whether or not a particular appeal has lapsed is a matter to be determined judicially.

 

11. However, the question I raised was whether the Secretary of State’s power to review decisions of tribunals made under sections 1 or 5 of the Pensions Appeal Tribunals Act 1943 was so limited that he was seldom able to review a decision so as to make an appeal to the Upper Tribunal pointless.  In other words, did the Secretary of State have the power to make the decision purportedly made on 21 November 2011?

 

12. The Secretary of State’s power of review is to be found in article 44 of the 2006 Service Pensions Order, which provides, so far as is relevant –

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

  …”

 

13. Paragraphs (1) and (2) provide the Secretary of State with very wide powers to review his own decisions, subject to the limited restraints imposed by paragraphs (4) and (5), but paragraph (3) provides a much more limited power to review decisions “made, given or upheld” by tribunals.  Where there is an appeal pending before the Upper Tribunal, it is the decision that has been made, given or upheld by the Pensions Appeal Tribunal or First-tier Tribunal that must be reviewed if the appeal to the Upper Tribunal is to be rendered pointless.  By virtue of paragraph (3), the only ground for review of such a decision is “that there has been a relevant change of circumstances since the assessment or decision was made”.

 

14. I am prepared to accept that the words “since the assessment or decision was made” must now be read as “since the assessment or decision that was appealed to the tribunal was made by the Secretary of State”, even in a case where the assessment or decision was actually “made” or “given” by the tribunal rather than merely being “upheld” by the tribunal, because the legislation is presumably intended to work consistently in all three cases and the tribunal itself will have been precluded by section 5B(b) of the 1943 Act from taking account of any change of circumstances since the date of the Secretary of State’s decision.  If the legislation were not read in this way, there would be a most unsatisfactory lacuna in it.

 

15. However, the date on which a decision is made is not the same as the date from which it is effective.  In the present case, the commencing date of the decision under appeal to the First-tier Tribunal was 12 March 2009 but the decision was actually made by the Secretary of State on 31 March 2010. 

 

16. As a matter of simple logic, I fail to see how a review on the ground of a change of circumstances since 31 March 2010 can result in a higher assessment having effect from 12 March 2009.  When one compares article 44(3) with article 44(2), the distinction is obvious and throws light on the meaning of “relevant change of circumstances”.  A “relevant change of circumstances” is a ground upon which a decision may be reviewed because it has become wrong as a result of a change since the relevant date, whereas “ignorance of, or a mistake as to, a material fact” is a ground upon which a decision may be reviewed because it was wrong at the date it was made.  A decision of a tribunal may not be reviewed on the latter ground because the policy is clearly that the Secretary of State is bound by any decision of a tribunal on an issue of fact as well as of law and so may review a decision of a tribunal only where there has been a change of circumstances of which the tribunal had been unable to take account.  Thus, in the present case, a review on the ground of a change of circumstances could not have taken effect from any date before 1 April 2010.  A decision effective from any earlier date would imply either that the Secretary of State considered that the First-tier Tribunal’s decision was based on ignorance of, or a mistake as to, a material fact or simply that the Secretary of State disagreed with an opinion of the First-tier Tribunal.  Neither of those is a ground for review.

 

17. The Secretary of State now relies upon a medical assessment carried out in June 2011 for the purposes of a claim for a mobility supplement and a letter dated 24 November 2010 from the claimant’s consultant orthopaedic surgeon which was one of three medical reports written after the date of the Secretary of State’s decision that were submitted by the claimant to the First-tier Tribunal and considered by it.  Those, it is submitted, amount to a relevant changes of circumstances justifying the review.  I disagree.  Mere receipt of a change of a medical report is in one sense a change of circumstances but it is not a “relevant” change of circumstances because mere receipt of a report does not of itself have any bearing on entitlement to a disablement pension.  It is plain from R.(Rogerson) v Secretary of State for Defence [2012] EWHC 2131 (Admin)  (see, in particular, paragraphs 40 and 41), decided in the light of Cooke v Secretary of State for Social Security [2001] EWCA Civ 734 (reported as R(IS) 6/01), that the proper approach is to regard a medical report as evidence from which it might be inferred that there had been a relevant change of circumstances or from which it might be inferred that a decision was based on ignorance of, or a mistake as to, the facts as they stood at the date of the relevant decision. 

 

18. In any event, it is unnecessary to rely upon pure logic in this case.  The legislation makes explicit provision for commencing dates.  A review instigated by the Secretary of State generally takes effect only from the date of the review (see paragraph 1(6) of Schedule 3 to the 2006 Service Pensions Order), which in this case was 21 November 2011.  None of the other provisions of Schedule 3 applies in this case so as to permit any earlier commencing date.  As the Secretary of State now concedes, he therefore simply had no authority to make the decision of 21 November 2011 effective from 12 March 2009 or any other date earlier than 21 November 2011.

 

19. It is clearly the intention of the legislation that any decision of the First-tier Tribunal in respect of the period up to the date of the decision of the Secretary of State that is being challenged may be set aside only on limited grounds by the First-tier Tribunal itself or on a point of law by the Upper Tribunal.  Insofar as it relates to that period, it may not be reviewed by the Secretary of State.  If, when considering how to respond to an appeal to the Upper Tribunal brought by a claimant, the Secretary of State reaches the conclusion that the First-tier Tribunal’s decision was erroneous both in point of law and on an issue of fact, the correct approach will therefore usually be for the Secretary of State to support the claimant’s appeal and invite the Upper Tribunal to substitute the appropriate decision, rather than for the Secretary of State to review the First-tier Tribunal’s decision.  If the Secretary of State considers that the First-tier Tribunal’s decision was wrong on the facts but is not vitiated by error of law, there is unlikely to be anything that can currently be done to set aside the decision and remedy the error.

 

20. Formerly, a President of a Pensions Appeal Tribunal had a power under section 6(2A)(b)(i) of the 1943 Act to set aside a decision of such a tribunal “by reason of the availability of additional evidence”.  That  provision was repealed by the Armed Forces (Pensions and Compensation) Act 2004 and the rule-making power that replaced it (paragraph 5(3A)(b)(i) of the Schedule to the 1943 Act) has not been exercised and no longer applies in England and Wales.  Since the ability of tribunals (including the Upper Tribunal and appellate courts) to make findings of fact is very much dependent on the evidence available to them, it may be thought unsatisfactory that there should be no power to review or set aside their decisions on the ground of ignorance of, or a mistake as to, a material fact, at the very least where there is “fresh evidence” in the narrow technical legal sense of that term.  Nevertheless, that is clearly the current position and it appears to be intentionally so. 

 

The assessment of disablement

 

21. I turn then to the question whether there was an error of law in the First-tier Tribunal’s decision in this case so that I may substitute a decision for that of the First-tier Tribunal.  When I granted permission to appeal, I said –

 

“It is arguable that the First-tier Tribunal’s reasoning is either flawed or is inadequate.  Part of the explanation of its decision is no doubt to be found in the entitlement decision it made at the same time as the assessment decision.  It accepted that the claimant had osteoarthritis in his back and therefore some back pain but it did not accept that that was attributable to service.  It is therefore implicit that it found that his overall disablement was greater than 40% and to some extent the reason for it not increasing the war pension assessment was its view that part of the deterioration in the claimant’s condition was not attributable to service in the Army.  The First-tier Tribunal was also entitled to take the view that, as 62 year-olds have more aches and pains than 45 year-olds, some age-related deterioration need not be reflected in an increased assessment.  However, the claimant’s evidence, apparently accepted by the First-tier Tribunal, was that he could not walk more than 200 yards without stopping due to severe discomfort and his case was that that was due to a deterioration in the condition of his knees that had been accepted as attributable to service.  Such disablement would, in my current view, usually attract an assessment of more than the 6 to 14 per cent previously considered appropriate for that particular condition and it is therefore unclear to me why, if the claimant’s evidence was accepted, the deterioration in his condition did not justify an increase in the overall assessment of 40% in his case.

 

22. The Secretary of State’s composite assessment of 40% had been explained as comprising assessments of 6-14% in respect of bilateral chondromalacia patellae, 1-5% in respect of injury right ankle (1966), 1-5% in respect of right tennis elbow, 1-5% in respect of osteoarthritis of finger joints, 1-5% in respect of injury right shoulder (1968) and 1-5% in respect of arthralgia both hips.  As in MF v Secretary of State for Defence (WP) [2013] UKUT 491 (AAC), I raised the question whether explaining a composite assessment by using the ranges set out in Table 2 of Part III of Schedule 1 to the 2006 Service Pensions Order was appropriate.  The Secretary of State defended the practice and I certainly accept that it is generally permissible, but, as I have said in MF, there may be cases where using the bands in Table 2 is not the best way of explaining a composite assessment.  The First-tier Tribunal did not in fact use the bands and it seems fairly clear from its record of the claimant’s evidence, which it appears to have accepted, that it regarded the proportion of the overall disablement due to accepted conditions attributable to the bilateral chondromalacia patellae to be much greater than the three-eighths suggested by the Secretary of State’s assessment.  This case may be another illustration of a tendency to add together the higher ends of the bands.  I have the impression that, having decided that the overall assessment should be 40% and having decided that none of the other conditions warranted an assessment of more than 5%, the Secretary of State felt constrained by his desire to express all the percentages in the conventional bands to suggest that the assessment in respect of bilateral chondromalacia patellae should be 6-14% when that was a patently inadequate figure. 

 

23. The First-tier Tribunal took the opposite approach and did not explain the weight given to the different conditions at all.  It would have been helpful if it had at least suggested the degree of disablement it considered appropriate for the loss of mobility, caused by the bilateral chondromalacia patellae, the injury to the right ankle (which seems to have left little disablement save in cold weather), and the arthralgia in both hips, as opposed to the other conditions, the most serious effect of which appears to have been reduced manual dexterity in his dominant hand.  How much explanation need be given varies from case to case but the more surprising a decision appears, the more likely it is that the reasoning will be closely examined.  Without further explanation, an overall assessment of 40% appears at first sight to be absurdly low on the apparent facts of this case, especially given that it is clear from Part V of Schedule 1 to the 2006 Service Pensions Order that an assessment of 100% does not require that a claimant be totally disabled in a literal sense so that other assessments must presumably be calibrated accordingly.  The First-tier Tribunal placed a great deal of emphasis on its duty to compare the condition of the claimant with that of a normal healthy man of the same age (see article 42(2)(a)), but the claimant was only 62 at the material time and I do not consider that the reasons adequately explain what appears to me to have been a surprisingly low assessment on the evidence that was before the First-tier Tribunal.

 

24. I am therefore satisfied that the First-tier Tribunal’s decision is erroneous in point of law.  Both parties agree that an assessment of 50% is appropriate for the whole period from 12 March 2009.

 

The commencing date of the assessment

 

25. However, there is a question as whether 12 March 2009 was the correct commencing date for the assessment made by the Secretary of State on 31 March 2010 that is the subject of these proceedings.  That requires consideration of the nature of that decision, which is not immediately obvious, due to the obscurity of both the Secretary of State’s decision of 11 May 2009 and the First-tier Tribunal’s decision of 21 October 2009.

 

26. The First-tier Tribunal sitting on 21 October 2009 appears to have considered that the decision of 11 May 2009 included an assessment decision and it appears to have made its slightly odd one-day assessment on the basis that the assessment of 11 May 2009 would remain in force, save in respect of the one day covered by the First-tier Tribunal’s decision, until it was the subject of either an appeal or a review.  The First-tier Tribunal probably contemplated that there would be an appeal if the claimant remained dissatisfied with the 40% assessment, rather than a review.  In fact, as far as I can see, the claimant neither appealed nor applied for a review before the decision of 31 March 2010 was made.  That decision appears to have been made on the Secretary of State’s own initiative and the claimant then appealed against the new decision rather than the earlier one.

 

27. The explanation for there being a review and for the commencing date of the decision being 12 March 2009 appears in the following paragraph of the Secretary of State’s submission to the First-tier Tribunal –

 

“[The claimant] was informed on his previous assessment that his assessment would be reviewed following the end of the period 11.03.2009, a date set by the Tribunal.  Therefore the date of commencement of any award arising is 12 March 2009.”

 

Whether the “previous assessment” was that of the First-tier Tribunal made on 21 October 2009 or that of the Secretary of State made on 11 May 2009 is unclear, although it seems more probable that the former was intended, even if that was a misinterpretation of what the First-tier Tribunal actually contemplated.  Even less clear is how the commencing date can be reconciled with Schedule 3 to the 2006 Service Pensions Order when the review was not instigated until after 21 October 2009.  Given the First-tier Tribunal’s decision on 21 October 2009, it is obvious why it was regarded by the Secretary of State as fair that the new assessment should be effective from immediately after the assessment made by the First-tier Tribunal, but I have some difficulty in seeing how that could properly be achieved through a review rather than by way of an appeal. 

 

28. There are at least three ways out of this dilemma so as to achieve the desired aim of an assessment that is effective from the date immediately following the assessment made by the First-tier Tribunal on 21 October 2009.  First, the decision of 11 May 2009 might be considered not to have included a new assessment decision.  Secondly, if the decision of 11 May 2009 was an assessment decision, it is arguable that it lapsed when the decision of 11 March 2009 was replaced by the decision of the First-tier Tribunal of 21 October 2009 because it had merely maintained the decision of 11 March 2009 rather than revising it.  Thirdly, the claimant’s appeal against the decision of 31 March 2010, brought on 18 June 2010, might be taken as also having been a late appeal against the decision of 11 May 2009.  On the first and second approaches, the decision of 31 March 2010 would not have been a review decision at all but merely a new assessment following the First-tier Tribunal’s one-day interim assessment.  It was also unnecessary for the First-tier Tribunal sitting on 21 October 2009 to make the artificial decision it did.  On the third approach, the First-tier Tribunal sitting on 17 February 2011 would have had jurisdiction to make a decision in substitution for the whole of the assessment of 11 May 2009 to the extent that it had not been replaced by the decision of the First-tier Tribunal of 21 October 2009, even though the Secretary of State could not have done so on the review.

 

29. I need not choose between those approaches but I am satisfied that I am entitled to make an assessment that is effective from the day following the  end of the assessment made by the First-tier Tribunal on 21 October 2009, which is what the Secretary of State did.

 

30. Where I differ from the Secretary of State is as to the period of the assessment made by the First-tier Tribunal on 21 October 2009.  As I have explained above, it is clear that the assessment was in fact for the single day of 7 December 2008.  It is understandable that the Secretary of State should have relied on what was written on the decision notice and have taken the assessment to be in respect of 11 March 2009 but, in the light of the reasoned decision of the First-tier Tribunal, it is plain that the wrong date appeared on the decision notice. 

 

31. The claimant has argued for an even earlier commencing date on the basis of complaints about the medical examination upon which the assessment in 2006 was based.  However, the assessments made in 2006 and on 11 March 2009 were both the subject of appeals to tribunals.  The Secretary of State had no relevant power to review those decisions on 31 March 2010, with the result that I now have no power to interfere with them in this appeal.  The claimant also did not appeal against those tribunal decisions.  By 2011, when the present appeal was brought, he was well out of time for doing so.

 

32. For these reasons, I am satisfied that the assessment in this case should be effective from 8 December 2008.  I doubt that the degree of deterioration in the claimant’s condition was significant during the three months from then until 11 March 2009 and I am therefore satisfied that it is appropriate for the assessment to be at 50% from  8 December 2008.

 

Long-term interim assessments

 

33. The question then arises as to whether the period of assessment should be for a fixed term, as the First-tier Tribunal thought appropriate, or whether it should be for an indefinite period, as both parties consider is appropriate, and, if the latter, whether the assessment should be described as interim or final.

 

34. I invited argument on the propriety of making what are known as long-term interim assessments in respect of indefinite periods because the First-tier Tribunal seem frequently, if not invariably, to have substituted fixed-term interim assessments for long-term interim assessments made by the Secretary of State.  It did so in the present case.  It did not give any reason for doing so but I infer from the general practice that it did not regard long-term interim assessments to be entirely proper.  I also asked the Secretary of State whether there was in fact any practical difference between the long-term interim assessments made by the Secretary of State and a final assessment made for an indefinite period. 

 

35. Article 42(2)(d) of the 2006 Service Pensions Order provides that –

 

“the degree of disablement shall be assessed on an interim basis unless the member’s condition permits a final assessment of the extent, if any, of that disablement”.

 

The 2006 Service Pensions Order does not itself spell out the effect of a decision being interim or final.  However, it is plainly anticipated that, where an interim assessment is made for a fixed period, a further assessment should automatically be made with effect from the end of that fixed period.  That follows from the use of the word “interim”.  It is also plain that both interim assessments and final assessments may be reviewed under article 44, so that the finality of a final decision is subject to the power of review.

 

36. I am not certain of the precise history of the operation of article 42(2)(d) and its forerunners but I believe that in the mid-1940s the Minister did not in fact make interim assessments for periods longer than two years and it was only in the late 1940s or early 1950s that he started making interim assessments for periods as long as five years.  I understand open-ended interim assessments to be a more recent development.  In any event, they are made by the Secretary of State where a worsening of the degree of the claimant’s disablement due to the accepted conditions is expected but not for some considerable time.  As I understand it, the reason that fixed-term assessments are not made in such cases is that it is difficult to estimate when significant worsening might occur and it is not considered desirable from the point of view of either the Secretary of State or claimants for potentially unnecessary medical examinations to be scheduled.  Under an open-ended assessment, a further examination is arranged only when there is a review, whether on the claimant’s application or on the Secretary of State’s own initiative.  I can see the practical reasons for making open-ended assessments in such cases, but the legal question raised is whether the legislation provides only for either an interim assessment for a fixed term, automatically leading to a further assessment, or a final assessment which is not followed by a further assessment unless there is a review. 

 

37. The Secretary of State was unable to point to any practical distinction between the long-term interim assessments he makes and a final assessment for an indefinite period, other than suggesting that there was a linguistic advantage to claimants in having a “long-term interim assessment” rather than a “final assessment” because the latter was likely to mislead claimants into thinking that there was no power of review.  In particular, the Secretary of State did not suggest that there was any special internal procedure for considering from time to time whether long-term interim assessments should be reviewed.  If that is so, it is arguable that a long-term interim assessment is not permitted because it is not in any meaningful sense interim and that, therefore, any open-ended assessment should be made as a final assessment.

 

38. The Secretary of State however emphasises the requirement of article 42(2)(d) that an assessment must be on an interim basis unless the claimant’s condition permits a final assessment.  He also submits that an assessment must be on an interim basis unless it is “clear” that the claimant’s condition will not deteriorate or, I would add, improve further.  I see no reason why the threshold should be any more than the balance of probabilities and, in any event, the point does not by itself explain why it is thought there should be an open-ended assessment when an interim assessment is required.  Notwithstanding the difficulty in estimating when worsening due to the long-term effects of an injury might occur, the legislation does not exclude a long-term, but nevertheless fixed-term, interim assessment requiring there to be a further assessment at the time when the worsening might be expected.  Alternatively, it can be argued that, in the light of the broad power of review, a person’s condition permits a final assessment if any worsening or improvement is likely to be in what might be called the unforeseeable future as opposed to the foreseeable future.  Nonetheless, there is force in the Secretary of State’s submission on a literal approach to the legislation.

 

39. Ms Ward also raised the question of estoppel, suggesting that either a final assessment for an indefinite period or an interim assessment for a fixed period might limit the Secretary of State’s power to make decisions.  I do not find this argument compelling, given the express power of review in the 2006 Service Pensions Order.  I was not referred to any authority, but perhaps the Secretary of State is haunted by the ghost of Colonel Robertson.  In Robertson v Ministry of Pensions [1949] 1 K.B. 227, Denning J held that an assurance given to Colonel Robertson by the War Office in a letter dated 8 April 1941 stating that “your disability has been accepted as attributable to military service” was binding on the Minister of Pensions in relation to a claim for a disablement pension under a royal warrant that was a forerunner of the 2006 Service Pensions Order.  He famously said at page 231 –

 

“The Crown cannot escape by saying that estoppels do not bind the Crown, for that doctrine has long been exploded.”

 

40. However, Lord Denning MR, as he had by then become, himself subsequently said that a public body “cannot be estopped from doing its public duty” and he explained Robertson as a case where a public body had misused its powers through acting unfairly or unjustly towards a private citizen (see HTV Ltd v Price Commission [1976] I.C.R. 170 at page 185).  The relationship between duties and powers is not always straightforward.  In considering this explanation of Robertson, it is important to note two points.  First, it was accepted and regarded as significant that Colonel Robertson had acted on the assurance from the War Office by not obtaining a contemporaneous medical report that he would otherwise have obtained at a time when relevant X-rays, later lost or destroyed, were still available.  Secondly, Denning J observed at page 230 that –

 

“… the letter of April 8, 1941, is framed in the very words of the Royal Warrant of June [29,] 1940, which was then in force.  …  That was, on the face of it, an authoritative decision intended to be binding and intended to be acted on.  Even if the appellant had studied the Royal Warrant in every detail there would have been nothing to lead him to suppose that the decision was not authoritative.”

 

Significantly for the purposes of the present case, that royal warrant contained no power of review.  Robertson was considered by Lord Templeman in Regina v Inland Revenue Commissioners, ex parte Preston [1985] AC 835 at page 865 to be one of a number of cases in which “authorities acted in a manner for which, if the authorities had not been emanations of the Crown, the applicants would have enjoyed a remedy by way of damages or an injunction for breach of contract or breach of representations”.

 

41. In my judgment, making a decision that is subject to an express power of review cannot in itself amount to a representation that the power of review will not be exercised, particularly if the claimant is informed of the power of review.  Nor can making an interim assessment for a fixed period contain any representation as to the decision that will be made at the end of that period or that there will be no review before the end of the period.  I therefore do not accept that a possibility of estoppel is a good reason for making an open-ended interim assessment instead of an open-ended final assessment or a fixed-term interim assessment.  Indeed, if the effect of making the most appropriate decision were to limit the Secretary of State’s powers as regards future decision-making, it would be surprising if the Secretary of State could properly avoid the limitation by making a less appropriate decision.

 

42. The Secretary of State is on stronger ground relying on ML v Secretary of State for Defence [2011] UKUT 511 (AAC) in which it was held that an open-ended interim assessment was permissible simply because there was no express provision to the contrary. I observe that Judge Lloyd-Davies also drew attention to one issue that shows that, on an appeal, it would sometimes matter whether an open-ended assessment was described as interim or final.  Section 5(1) of the 1943 Act provides that, on an appeal against an interim assessment, the appropriate tribunal may reduce the period of the assessment, although it may neither increase the period nor make the assessment final.  Section 5(2) provides that, on an appeal against a final assessment, it may substitute an interim assessment but not so that the period of the assessment ends more than two years after the date of its decision.  The point that Judge Lloyd-Davies emphasised was that, when reducing the period of an interim assessment, a tribunal is not prohibited by subsection (1) from substituting an assessment that ends more than two years after the date of its decision, although, of course, the period cannot end later than the original assessment did in a case where the original assessment was for a fixed term.  Thus, on an appeal to a tribunal, it does matter whether an open-ended assessment made by the Secretary of State is interim or final.

 

43. Quite why a tribunal should be prohibited by section 5(2) of the 1943 Act from making an assessment that ends more than two years after its decision when it is substituting an interim assessment for a final assessment I am not entirely sure.  It may be an indication that the draftsman of section 23 of the Chronically Sick and Disabled Persons Act 1970, which amended the 1943 Act so as for the first time to empower a tribunal to substitute an interim assessment for a final assessment, did not contemplate there being open-ended interim decisions.  In any event, it was arguably consistent with section 5(1) of the 1943 Act which, until 1980, did not allow a tribunal to vary the length of an interim assessment and still does not allow a tribunal to make an interim assessment for a period longer than that considered appropriate by the Secretary of State.

 

44. I return then to the language of article 42(2)(d) and to the practicalities of making assessments in cases where a change in the degree of the claimant’s disablement is likely, but only in the very long term, unforeseeable, future.  There is plainly a strong pragmatic argument to be made for making open-ended assessments in such cases given the power of review and the fact that the length of a fixed-term assessment could be based on little more than speculation as to what might happen in the unforeseeable future.  It is unfortunate that article 42(2)(d) does not impose a limit on how far ahead one must look for the purpose of deciding whether a member’s condition permits a final assessment.  Or, to put matters another way, the concept of finality may have outlived its usefulness in relation to open-ended assessments, now that there is such a wide power of review.  It simply seems unnecessary for the Secretary of State to spend time deciding whether or not a claimant’s condition permits a final assessment to be made when any significant deterioration or improvement is likely to be so far in the future that it is impractical to say when it might occur.  The redundancy of the concept of finality in relation to open-ended decisions is also reflected in the point made as to the linguistic advantage of long-term interim assessments. (I appreciate, though, that an amendment to article 42(2)(d) to remove any reference to finality in respect of open-ended decisions would probably require a consequential amendment to section 5 of the 1943 Act.)

 

45. It seems to me that article 42(2)(d) must be construed in the light of the power of review.  Given the power to review assessments under article 44(1) and (3) and given that there is a right of appeal against any decision made on review or any refusal to review (see Secretary of State for Defence v RC (WP) [2012] UKUT 229 (AAC)), I am quite satisfied that it is appropriate for open-ended assessments to be made in the class of case in which long-term interim assessments are currently made.  I doubt that it was contemplated when the 1943 Act was passed that there might be such a thing as an open-ended interim decision and, in the absence of authority, I might be inclined to treat all open-ended decisions as final decisions (rather than insisting on fixed-term decisions in cases where there is no sound basis for fixing the term).  However, I am not satisfied that the view expressed in ML that long-term interim assessments are not impermissible is clearly wrong.  They have the advantage of giving a tribunal slightly more flexibility on an appeal if the tribunal is satisfied that there is likely to be a significant change in the degree of the claimant’s disablement within the foreseeable future.   I accordingly accept that it is not unlawful to make an interim assessment for an indefinite period.

 

46. In the present case, the First-tier Tribunal gave no reason at all for substituting a fixed-term assessment for the long-term interim assessment.  If, as I have suggested above, it considered long-term interim assessments to be improper, it erred in law in doing so; but the failure to give reasons was in itself an error of law.  I reiterate the point made in ML that, although a fixed-term interim assessment may often be advantageous to a claimant because it ensures that there will be a further assessment, there can also be distinct disadvantages for claimants in having fixed-term interim assessments as opposed to open-ended assessments and a reason must therefore be given for substituting a fixed-term assessment for an open-ended one.  The risk to a claimant of a lower assessment being made in the future may be significantly higher if there is a fixed-term assessment rather than an open-ended assessment.  ML was concerned with a possible difficulty arising from a change in the statutory method of assessing disablement in respect of noise-induced sensorineural hearing loss but there is, in any event, no guarantee that a further assessment made at the end of fixed term interim assessment will be at the same, or a higher, level than the earlier assessment.  The Secretary of State is relatively unlikely on his own initiative to review an open-ended assessment and, on a review, a claimant receives some protection by virtue of article 44(4).  These are not by themselves reasons for not making fixed-term assessments, but the possible disadvantage to claimants is why reasons are required and also why it is generally desirable to obtain a claimant’s view before substituting a fixed-term assessment for an open-ended one.  The Secretary of State is also entitled to have his view heard and taken into account, since he bears the cost of medical examinations.

 

47. There are, of course, difficulties where an appeal is being heard in a claimant’s absence and the question whether there should be a fixed term award has not been raised before the hearing.  A tribunal may be justified in substituting a fixed-term interim assessment for an open-ended assessment without the issue having first been raised with the claimant if, in the particular case, the claimant is unlikely to be disadvantaged and clear reasons are given for the decision.  In other cases where a claimant’s view cannot easily be obtained, it may be preferable merely to draw both parties’ attention to the Secretary of State’s powers of review.

 

48. Here, both the claimant and the Secretary of State consider that the degree of the claimant’s disablement due to the accepted conditions is likely to increase at some time in the future but they both agree that an open-ended assessment is appropriate at present.  I see no reason to take a different view.  Whether an open-ended assessment should be described as “interim” or final” is really immaterial when the assessment is made by a tribunal but I am content that this assessment be described as a long-term interim assessment.

 

Conclusion

 

49. For these reasons, I am satisfied that this appeal has not lapsed but that I should allow the appeal and substitute a decision that the extent of the claimant’s disablement be assessed at 50% from 8 December 2008 for an indefinite period.  I am content that that should be taken as being an interim assessment despite it being open-ended.

 

 

 

 

 

 

 

 

Mark Rowland

22 October 2013