Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CAF/1858/2012

ADMINISTRATIVE APPEALS CHAMBER

Before Upper Tribunal Judge Rowland

Decision:  The claimant’s appeal is allowed.  The assessment decision of the First-tier Tribunal dated 13 December 2011 is set aside and the case is remitted to a differently constituted panel of the First-tier Tribunal for rehearing.

REASONS FOR DECISION

1. This is an appeal, brought by the claimant with my permission, against a decision of the First-tier Tribunal dated 13 December 2011 dismissing his appeal against an interim assessment of disablement of 30% for an indefinite period from 22 June 2010 in respect of a fracture of his left wrist.

2. The claimant has asked for an oral hearing.  However, the appeal is supported by the Secretary of State and I am satisfied that I can properly decide this appeal in the claimant’s favour without a hearing.  The appeal lies only on points of law.  It would be inappropriate for me to assess his disablement without a hearing, but such an assessment would in any event be much better performed by the First-tier Tribunal, panels of which include a doctor and a former member of the Armed Forces as well as a judge, rather than by the Upper Tribunal composed of a single judge.  That is why, having allowed the appeal, I remit this case to the First-tier Tribunal instead of reaching a final conclusion on disablement myself.

3. The background to this appeal is not in dispute.  The claimant fractured his wrist in 2003 when he slipped while running.  Unfortunately, there were complications that appear to have arisen out of the way the injury was initially diagnosed and treated.  Nonetheless, the claimant remained in the Army until 2010 when he retired as a Lieutenant-Colonel at the age of 55.  He then claimed a disablement pension under the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 2006 (SI 2006/606).  The fracture was accepted as being due to service, with the label “fracture left wrist 2003”, and disablement was initially assessed at 20%.  The claimant disputed both the assessment and the label, on the ground that neither fully took into account the complications.  The Secretary of State reviewed the assessment, increasing it to 30%, but maintained the label on medical advice that it “reflects the primary injurious process and, as such, adequately addresses the claim for injury” and that “[a]ll associated disablement is included under the assessment”.

4. The claimant appealed against both the increased assessment and the label.  The First-tier Tribunal dismissed both appeals.  It did so in the absence of the claimant who lives abroad.

5. On file CAF/1860/2012, I have refused permission to appeal against the “entitlement decision” in respect of the label.  A “label” is a non-statutory concept.  What matters is whether all the disablement “due to service” is taken into account in determining entitlement to a disablement pension (see articles 6 and 42).  In this case, it is clear that all the consequences – “all associated disablement” – of the claimant’s wrist injury, including those resulting also from treatment, have been accepted by the Secretary of State and the First-tier Tribunal as attributable to service and should have been taken into account in the assessment of disablement.  In these circumstances, I refused permission on the ground there was nothing to be gained through arguing about the precise wording of the label.  I also observed that it was doubtful that any “claim” made by the claimant has been “rejected” so as to give rise to an appeal to the First-tier Tribunal under section 1 of the Pensions Appeal Tribunals Act 1943. 

6. The question that arises in the present appeal is whether all the material disablement has properly been taken into account in the assessment of disablement.  The claimant has raised a number of issues, three of which seem to me to show errors of law.

7. First, in his letter to the First-tier Tribunal seeking permission to appeal appeal, he submits that he has lost half the function of his left hand as a result of mistreated damage to his wrist.  That letter appears to suggest that that is why he seeks a 50% assessment, although his assessment of the loss of function in his hand was higher in 2009 (see page 32).  In any event, he challenges the First-tier Tribunal’s view that he “is currently generously assessed” and its comparison with 30% as the statutory assessment for the complete loss of three fingers.

8. The difficulty with that argument is that the 30% assessment does not represent a view that the loss of function in his hand is only 30%.  It is judged 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%.  Thus loss of both hands or loss of one hand and one foot both attract an assessment of 100%.  Loss of one hand – “[a]mputation from 11.5 centimetres below tip of olecranon” – attracts an assessment of 60%.  Accordingly, an assessment of 30% would generally be appropriate for loss of half of the function of a hand.  It therefore looks at first sight as though the claimant got what he sought.

9. I therefore do not accept the claimant’s argument that, in describing the assessment as “generous”, the First-tier Tribunal showed bias.  A tribunal is entitled to use its general experience of awards and an assessment of 30% is by no means negligible.  It is, as the First-tier Tribunal pointed out, the appropriate assessment for the total loss of three fingers and, on the evidence before it, the First-tier Tribunal was entitled to consider that such a loss would be likely to have at least a comparable effect on a person’s ability to use his or her hand as the claimant’s injury.  To put it in a wider context, it is also the appropriate assessment for the “[a]mputation of one foot resulting in an end-bearing stump”.  Moreover, as Dr Braidwood points out, there are a number of features in the written evidence suggesting that any greater assessment in this case might have been unwarranted.

10. However, in the correspondence before the First-tier Tribunal, the claimant had emphasised that he had a particularly dominant left hand.  The principal ground upon which I granted permission to appeal was that, where a claimant has a particularly dominant hand, the loss of function of that hand may need to be reflected in a higher assessment than would otherwise be the case, at least for a while, and that, given the claimant’s submissions to it, the First-tier Tribunal had arguably erred in law in making no reference to that point in its statement of reasons.  The Secretary of State accepts that there should be a rehearing before the First-tier Tribunal on this ground, which I take to be an acceptance that the decision being challenged was wrong in law.

11. Dr Anne Braidwood CBE, medical adviser to the Deputy Chief of Defence Staff (Personnel and Training), has provided a helpful note on this appeal, referring to the relevant history.  At one time the statutorily prescribed assessments for amputations of parts of the right arm were 10% higher than for the left arm, although the assessments were reversed in the case of a left-handed person certified as such.  However, in 1947, the Hancock Committee recommended that the assessments be equalised by levelling up the lower ones on the ground “that, after he has accustomed himself to the use of his left hand, a right-handed person who has lost a portion of his right hand is not so much more seriously disabled than a person who has suffered a similar injury to his left hand as to justify the existing difference of 10 per cent. in his assessment” (Report of the Inter-departmental Committee on the Assessment of Disablement due to Specified Injuries, Cmd 7076, paragraph 9).  This recommendation was duly adopted both in the war pensions schemes and in the industrial injuries scheme introduced in the following year.  The McCorquodale Committee, reporting in 1965, saw no reason to take a different approach.  They said –

“Many people who regard themselves as right-handed would probably be surprised to realise the extent to which they use their left hand and vice versa.  It is also very generally found that transition of function from one hand to the other is quite easily made when circumstances require it, and medical experience is that when one arm or hand is lost and the other has necessarily to develop an aptitude to meet this situation, adaptation readily occurs.  We do not therefore propose the reintroduction of any differential in the assessment for a dominant arm or hand.” (Report of the Committee on the Assessment of Disablement, Cmnd 2847, paragraph 29)

12. Nonetheless, even in a case where there is a prescribed assessment, article 42(6) of the 2006 Order permits a different assessment to be made where there are “special features” and it seems clear that any relatively increased disablement due to the loss of function in a dominant hand may be taken into account.  For the reasons given by the McCorquodale Committee, that will seldom be justified for more than a short period but there are no doubt cases where individual claimants have far more difficulty adjusting than is usual.  In the present case, the claim for a disablement pension was effective from a date approximately seven years after the injury occurred.  It may well be that the First-tier Tribunal would not have thought it right to increase the assessment on the ground that the injury had caused a loss of function in the claimant’s dominant hand.  However, it should have considered the issue and shown in its statement of reasons that it had done so, given the weight the claimant had put on it.  It erred in law in not doing so.

13. In relation to the assessment, the claimant has also correctly submitted in his reply that regard must be had to the extent to which disablement in one limb affects the functioning of the body as a whole.  The prescribed assessments no doubt take account of that consideration in the amputation cases to which they apply but it is necessary to bear it in mind when making other assessments so that the true level of disablement is properly reflected.

14. In the second relevant ground of appeal, the claimant submits that the First-tier Tribunal misread his evidence as to his ability to type.  It said –

“The appellant stated that he was still able to type 65 words per minute but could not use a keyboard or mouse for long periods.”

What the claimant had actually said, in a letter dated 15 March 2011, was –

“During my first 19 years in the Army, I was employed as a clerk from private to Warrant Officer Class 1.  As such, I became an extremely competent typist, capable of typing for extended periods at a speed of 80 words per minute, which translated directly into my rapid use of computers.  By the time of the mis-treated damage to my wrist, my typing speed had fallen to around 65 words per minute, as I did not use a computer quite as intensively, but I could still type for extended periods.  Due to the weakness in my wrist, I am now unable to maintain such a rapid typing speed, nor am I able to use either a keyboard or a mouse for anything other than short periods of time.”

Thus, he was saying that the fall in his typing speed from 80 words per minute to 65 words per minute occurred before his accident, apparently as a side-effect of his being commissioned, and that since the accident it had dropped further, by an unspecified amount.

15. The Secretary of State has not commented on this issue.  I have no doubt that the First-tier Tribunal did misread the evidence.  The mistake might have affected its conclusion and, although I cannot be sure that that is so, I am again satisfied that it erred in law in this respect.

16. Thirdly, the claimant had asked that his case be listed for hearing when he was in the United Kingdom.  This had not been done and the panel hearing the appeal was almost certainly unaware of the request.  The First-tier Tribunal was, of course, hampered in making an assessment by the fact that the claimant was not present.  Although he had not asked for a postponement when the case was listed, it is possible that the First-tier Tribunal would have considered adjourning and arranging a hearing when he would be in England or Wales had it known that he would have preferred that.  The failure to put his correspondence before the panel, despite him asking that it be informed of his position, might therefore have had a material impact on the proceedings. It renders the decision wrong in law because it was information required by the First-tier Tribunal for the purpose of deciding whether it was “in the interests of justice to proceed with the hearing” in the claimant’s absence (see rule 29(b) of the Tribunal Procedure (First-tier Tribunal) (War Pensions and Armed Forces Compensation Chamber) Rules 2008 (SI 2008/2686)).

17. I am satisfied that the Secretary of State is right to concede that this case should be remitted to the First-tier Tribunal for rehearing.  In his reply, the claimant has challenged the case-specific points made by Dr Braidwood and his arguments should be heard.  I cannot be certain that the errors made by the First-tier Tribunal might not have made a difference to the outcome, particularly if it had adjourned so that the claimant could be present at a hearing.  I therefore allow the appeal and, for the reasons given in paragraph 2 above, remit the case to the First-tier Tribunal.

18. I ought, finally, to refer to two points raised by the claimant in paragraphs 1 and 2 off his reply.  First, he comments on the statement in the Respondent’s submission that his assessment was increased on a “deterioration review”.  Review is the mechanism prescribed by article 44 of the 2006 Order for altering a decision and an assessment of disablement may be reviewed “at any time on any ground” under article 44(1), subject to various restrictions.  It was plainly an error to suggest that the assessment in this case was reviewed on the ground of “deterioration”.  Secondly, the 2006 Order does not prescribe the qualifications or experience to be held by medical officers who certify degrees of disablement in accordance with articles 42 and 43(b)(i) and (ii).  The description in the Secretary of State’s submission merely reflects the practice of recruiting doctors who have had experience in clinical practice and then receive relevant training.  It is generally unnecessary for a tribunal to consider what qualifications a medical officer certifying a degree of disablement had, since, where the assessment is challenged, its function is to make its own assessment. 

Mark Rowland

25 January 2013