DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

 

The DECISION of the Upper Tribunal is to dismiss the Appellant’s appeals.

 

The decisions of the First-tier Tribunal dated 13 December 2012 under file references ENT/00132/2012 and AFCS/00111/2012 do not involve an error on a point of law.

 

The decisions of the First-tier Tribunal accordingly stand.

 

This decision is given under section 11 of the Tribunals, Courts and Enforcement Act 2007.

 

 

REASONS FOR DECISION

 

The background to this appeal

1.  The Appellant served as an officer in the Royal Navy from 1980, rising to the rank of Commander, until medically discharged in 2010. As a result of a medical condition which is not relevant to the present proceedings, he had been restricted to shore service after 1991. He undertook a number of high-level and demanding senior managerial onshore roles in the Navy thereafter. At the same time his late wife was diagnosed with breast cancer in 1992; she fought a long battle, with a number of ups and downs, before she died in 2007. The Appellant was diagnosed with adjustment reaction in November 2003; although various labels were used at different times, this mental health condition was the principal invaliding condition on his medical discharge.

 

2.  The Appellant’s service therefore bridged the period before and after April 6, 2005. He made claims under both the Naval, Military and Air Forces (Disablement and Death) Service Pensions Order 2006 (SI 2006/606; “the SPO”) and the Armed and Reserve Forces (Compensation Scheme) Order 2005 (SI 2005/349; “the AFCS”). As to the former, the Secretary of State decided that the Appellant’s adjustment reaction was neither attributable to nor aggravated by his SPO service. As to the latter, the Secretary of State decided that the disabling condition arose during SPO service and had not been made worse by AFCS service. The Appellant lodged appeals against both decisions.

 

3.  The First-tier Tribunal (“the Tribunal”) held a hearing in two parts. The first hearing was in Southampton in June 2012. The Tribunal adjourned part-heard to enable the Appellant to provide further medical evidence, having reached the provisional view that the Appellant’s condition was neither due to nor worsened by either SPO or AFCS service. It then held a final hearing in London on December 13, 2012. The Tribunal heard further evidence on the issue of the extent to which any of the stressors causing or worsening the adjustment reaction were service-related. In the event the Tribunal dismissed both appeals. The Tribunal issued a single composite statement of reasons covering both decisions. I am adopting the same course.

 

The Upper Tribunal proceedings and the decision in summary

4.  I held an oral hearing of the Appellant’s application for permission to appeal on 5 December 2013, as a result of which I gave permission to appeal on two grounds. The first ground was the Appellant’s contention that the Tribunal had reached a perverse conclusion as regards the absence of any link with service, a conclusion for which it had no or insufficient evidence. The second ground concerned an alleged breach of natural justice, in that the medical member of the Tribunal, a Senior Military Psychiatrist, was at the time of both hearings a serving RAF Group Captain.

 

5.  I subsequently held an oral hearing of the appeal on May 15, 2014. The Appellant attended, representing himself, and Mr Adam Heppinstall of Counsel appeared for the Secretary of State. I am grateful to them both for their clear and well-argued written and oral submissions. My conclusion is that the Tribunal’s decisions do not involve any error of law. I shall deal with the surviving two grounds of appeal in reverse order as the second ground is plainly the more fundamental, affecting both the SPO and the AFCS decisions in equal measure, and with implications for other appeals heard within this Chamber.

 

The apparent bias ground of appeal

The legal test

6.  The Appellant and Mr Heppinstall were in agreement as to the legal principles involved. As Mr Heppinstall reminded me, they were helpfully summarised by the Chancellor of the High Court, sitting in the Court of Appeal in Resolution Chemicals Ltd v H Lundbeck A/S [2013] EWCA Civ 1515 (at paragraph 35):

 

‘The following principles relevant to this application are clear. First, the test of apparent bias is whether the fair-minded and informed observer, having considered the facts, would conclude that there is a real possibility that the tribunal was biased: Porter v Magill [2001] UKHL 67, [2002] AC 357 at [103] (Lord Hope). There is no difference between the common law test of bias and the requirements of an independent and impartial tribunal under Article 6(1) of the European Convention of Human Rights ("the Convention"): Lawal at [14] (Lord Steyn). Secondly, underlying both Article 6 of the Convention and the common law principles is the fundamental consideration that justice should not only be done but should manifestly and undoubtedly be seen to be done: R (McCarthy) v Sussex Justices [1924] 1 KB 256, 259. Thirdly, the fair-minded and informed observer is not unduly sensitive or suspicious, but neither is he or she complacent: Helow v Secretary of State for the Home Department [2008] UKHL 62, [2008] 1 WLR 2416, at [2] (Lord Hope). Fourthly, the facts and context are critical. Each case turns on an intense focus on the essential facts of the case: Man O' War Station Ltd v Auckland City Council [2002] UKPC 28 at [11] (Lord Steyn). Fifthly, if the fair-minded and informed observer would conclude that there is a real possibility that the tribunal will be biased, the judge is automatically disqualified from hearing the case. The decision to recuse in those circumstances is not a discretionary case management decision reached by weighing various relevant factors in the balance. Considerations of inconvenience, cost and delay are irrelevant: AWG Group Ltd at [6] (Mummery LJ).’

 

The Appellant’s submissions

7.  The Appellant’s central submission was that the fair-minded and informed observer would conclude that there was indeed a real possibility that the Tribunal was biased in a situation where a member of that Tribunal is a serving member of the UK armed forces (here, as noted above, the medical member was a serving RAF Group Captain). The Appellant accepted that the presence of a retired Service member on the Tribunal was both proper and welcome, as it brings the requisite depth of relevant experience to the Tribunal. However, he argued that the position was different if a member of the Tribunal was a serving member of the armed forces. This created, he argued, the perception of impartiality and an obvious risk of bias.

 

8.  In this context the Appellant pointed out that in many contexts servicemen and servicewomen were now, in effect, employees of the Ministry of Defence (e.g. personal injuries claims, tax and health and safety). Thus, to take just one illustration, Moses LJ stated in Smith & Others v The Ministry of Defence [2012] EWCA Civ 1365 that “it is beyond dispute, and the MOD did not purport to dispute, that it owed a duty of care at common law to members of the armed forces as their employer” (at paragraph 38). Given these important developments, the Appellant submitted, the Secretary of State could not hide behind anachronistic constitutional niceties such as the principle that the RAF Group Captain was an Officer of the Crown rather than an employee of the MOD. This was, the Appellant suggested in a nice turn of phrase, a “Lord Chancellor’s men in tights” view of the British constitution that had no place in the modern world. Equally, he argued, deploying another sartorial metaphor, the Secretary of State could not “hide behind the skirts of the Royal Prerogative”.

 

9.  The Appellant also argued that the risk of bias was obvious. The RAF Group Captain was paid by an MOD agency (the SPVA, and the Respondent in this appeal), was treated as an MOD employee in many respects and after hearing any appeal would return to his normal duties in the RAF, subject to the well-known financial and other pressures which affect all public servants in this age of austerity. Accordingly, the fair-minded and informed observer would take the view that when a decision taken by the Secretary of State on an SPO or AFCS claim was being questioned in a judicial arena by a former Naval officer, it would not be reasonable to expect someone who “had a continuing link with an institution or organisation, which might appear to affect his impartiality” (Lawal v Northern Spirit [2002] EWCA Civ 1218 per Mummery LJ at paragraph 19) to adjudicate on that very dispute. The position of the RAF Group Captain was, he contended, directly analogous to the situation in Belilos v Switzerland (1988) 10 EHRR 466, where the only member of a Police Board tribunal was a civil service lawyer from police HQ, who was liable to return to other departmental duties. That arrangement gave rise to legitimate doubts about the independence and impartiality of the Police Board itself and conflicting loyalty to colleagues when dealing with a charge laid against the accused by the police.

 

The Upper Tribunal’s analysis

10.  For the most part I accept Mr Heppinstall’s submissions on this ground of appeal. His starting point is that, as a matter of law, military officers are Officers of the Crown and not employees of the MOD. Thus they are loyal to the Crown and not to the Secretary of State. Issues relating to an officer’s appointment, career progression and discipline are governed by the Chain of Command and the military court system, matters in which the Secretary of State has no influence. In Newell v Ministry of Defence [2002] EWHC 1006 (QB), Elias J (as he then was) explained the position as follows:

 

‘As an officer of the Army, the Claimant was commissioned to serve the Crown pursuant to the Royal Prerogative. Officers of Her Majesty's forces do not have any contractual relationship with the Crown. This is a very firmly established principle: see eg Leaman v R [1920] 3 KB 663 and the cases cited therein. Whatever the merits of that doctrine in the modern age, I have not been asked to depart from it, nor would it be appropriate for me to do so. Their rights conferred both pursuant to statue and the prerogative. They can in an appropriate case enforce those rights by public law proceedings: see R v Army Board, ex parte Anderson [1992] QB 169, [1991] 3 All ER 375.’

 

11.  I do not accept the Appellant’s argument that the position has changed radically over the past decade or so since that High Court decision, and so I decline his invitation to overrule what he described as this “Lord Chancellor’s men in tights” view of the British constitution. I say that for two reasons.

 

12.  The first is that the traditional understanding, as set out above by Elias J, was recently confirmed in the Upper Tribunal by Judge Lloyd-Davies in Secretary of State for Defence v PY (WP) [2012] AACR 44, where the Judge ruled that the phrase “officer of the Secretary of State” in paragraph 10 of Schedule 3 to the SPO does not include officers of the armed forces acting as such (at paragraphs 15-21). In particular, Judge Lloyd-Davies held as follows:

 

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

 

13.  The second reason is that, contrary to the Appellant’s submissions, even today the law does not say that serving officers are employees of the MOD. Rather, typically the law says that serving officers are treated as if they are employees of the MOD. So, for example, since the coming into force of section 1 the Crown Proceedings (Armed Forces) Act 1987, which repealed section 10 of the Crown Proceedings Act 1947, the MOD has owed service personnel a common law duty of care in like terms to that owed by an employer to an employee. Similarly, section 48(3) of the Health and Safety at Work Act 1974 provides as follows:

 

‘(3) For the purposes of this Part and regulations made thereunder persons in the service of the Crown shall be treated as employees of the Crown whether or not they would be so treated apart from this subsection.’

 

14.  It is this convenient shorthand of employer and employee that Moses LJ was referring to in Smith & Others v The Ministry of Defence [2012] EWCA Civ 1365. So for certain purposes the relationship between the MOD and a serving officer is akin to that of employer/employee, but it is not the same as that relationship. There is nothing in the judgments of the Court of Appeal in Smith or subsequently the Supreme Court ([2013] UKSC 41) to undermine the conventional understanding of the position as previously set out by Elias J in Newell v Ministry of Defence.

 

15.  Where I differ slightly from Mr Heppinstall is in the rather sweeping assertion in his skeleton argument that the general public are aware of constitutional principles such as the independence of the armed forces and the separation of powers between the executive and the judiciary. That, ultimately, is an empirical question and I do not necessarily share Mr Heppinstall’s confidence. In that context I accept the Appellant’s anecdotal evidence that friends with whom he had discussed the matter considered that there was a risk of impartiality in the composition of the present Tribunal (although, of course, their responses may well have been coloured by the terms in which the question was put). The Appellant contended that “the average Joe will look at the First-tier Tribunal and see one of its members as an employee of the MOD”. However, the average Joe is not the proper legal test. The test assumes the fair-minded and informed observer, alive to the considerations outlined above.

 

16.  Thus although the RAF Group Captain plainly had a continuing link with the armed forces, the fair-minded and informed observer would not regard that as a matter affecting his impartiality in participating in the adjudication of a war pensions appeal. That observer would understand that the Tribunal member in question was an officer of the Crown, not a MOD employee, that he had taken the judicial oath, and that he was adjudicating entitlement to a war pension in a no-fault statutory scheme.  The observer would know that this Tribunal member was free from political interference and direction, was used to exercising his independent judgment and that he or his colleagues may sit in judgment on their peers in the military courts. I agree with Mr Heppinstall that the present situation is a long way removed from the position in Belilos v Switzerland.

 

17.  These bias cases, of course, are all fact-specific. As the Court of Appeal observed in R (on the application of PD) v Merseyside Care NHS Trust [2004] EWCA Civ 311 (at paragraph 8):

 

‘...the search is for the reaction of the fair-minded and informed observer. The court has to apply an objective assessment as to how such a person would react to the material facts. There is a danger when applying such a test that citation of authorities may cloud rather than clarify perception.’

 

18.  Whilst bearing that qualification very much in mind, it is worth noting that on the facts of R (on the application of PD) v Merseyside Care NHS Trust itself the Court of Appeal was entirely satisfied that the fair-minded and informed observer would conclude that there was no question as to the independence and impartiality of Dr Izmeth, the consultant psychiatrist member of a mental health review tribunal. It so happened that this medical member was employed by the same health authority as the detained patient, but had no contact with the detaining hospital, its staff or the patient himself. The Court recorded its initial reaction to the facts of that case as being that “the suggestion that Dr Izmeth might have been biased was absurd ... the argument that there was apparent bias in this case was founded on an analysis of case precedent rather than the apprehension of the reasonable observer. It also made us wonder why these proceedings had ever been brought” (at paragraph 46).

 

19.  I also take into account that the fair-minded and informed observer would be aware that, since their constitution in 1919, war pensions tribunals have included members with experience of service in the armed forces (see the Schedule to the War Pensions (Administrative Provisions) Act 1919). The current constitution rules are set out in the Senior President’s Practice Statement Composition of Tribunals in relation to matters that fall to be decided by the War Pensions and Armed Forces Compensation Chamber on or after 3 November 2008 (dated 30 October 2008). This provides (at paragraph 3) that

 

‘A decision that disposes of proceedings or determines a preliminary issue (except a decision under Part 4 of the 2008 Rules) made at, or following, a hearing must be made by:-

 

         a.  One judge; and

b. One other member who has substantial experience of service in Her Majesty’s naval, military or air forces or who is a transferred-in other member from the Pensions Appeal Tribunal and is not a registered medical practitioner; and

  c. One other member who is a registered medical practitioner or, in a particular case, or class of case, where the Chamber President considers it appropriate in order for the Tribunal to decide the matter, two other members each of whom is a registered medical practitioner.’

 

20.  In that context I make three observations. First, the Tribunal member representing category (b) (usually called the “service member”) may in principle be either a serving or a retired member of the armed forces. As a matter of convention they may well usually be, or in fact always be, retired service personnel, but there is no such stipulation. They must have “substantial experience” but they may still be in service. Second, whilst the service member must not be a doctor, there is no parallel requirement that the medical member in category (c) should not be someone with current or past service experience. Indeed, there is nothing to prevent either the tribunal judge or the tribunal medical member from being serving or former service personnel. Third, as part of the overriding objective, the Tribunal is charged with “using any special expertise of the Tribunal effectively” (rule 2(2)(d) of the Tribunal Procedure (First-tier Tribunal) (War Pensions and Armed Forces Compensation Chamber) Rules 2008 (SI 2008/2686)). There is, moreover, an obvious argument that in applying such expertise it may be of greater benefit to the Tribunal to have current rather than previous service experience.

 

21.  For all these reasons I conclude that the ground of appeal based on apparent or perceived bias and hence a breach of natural justice is not made out.

 

The causation ground of appeal

22.  Given the very different legislative frameworks for the SPO and the AFCS respectively, and not least the differences in both the burden and standard of proof, the Tribunal had to consider the issue of causation separately with regard to each claim.

 

The SPO claim

23.  The question for the Tribunal, as it correctly directed itself, was whether the Secretary of State had shown beyond reasonable doubt, and giving the benefit of any reasonable doubt to the Appellant, that the adjustment reaction was not attributable to or aggravated by his SPO service before April 6, 2005 (statement of reasons at [13(a)]). As Mr Heppinstall rightly acknowledged, it will be a rare case in practice where the Secretary of State is able to discharge what is in effect a reverse criminal burden of proof. However, his submission was that the present case was just such a rare bird: the Tribunal had not only correctly identified the question it had to answer but had also analysed the relevant evidence and made sustainable findings of fact, which had been adequately explained. 

 

24.  The Appellant’s case on appeal to the Upper Tribunal, in a nutshell, was that no reasonable tribunal, on the evidence before it, could have reached the conclusion beyond reasonable doubt that his illness (originally treated in late 2003) was not caused, or made worse to some degree, by his SPO service. The Appellant did not seek to argue that work-related stress was the cause of the condition first diagnosed in November 2003, but he contended that it was a cause, and so satisfied the SPO causation test laid down in Marshall v Minister of Pensions [1948] I KB 106. His argument was that when he had first presented in November 2003, and when adjustment reaction was first diagnosed, he did so against a background of a great deal of stress at work against the background of his wife’s continuing ill-health.

 

25.  The Appellant further argued that the Tribunal had been wrong to find as a fact that his late wife’s condition had taken a turn for the worse in late 2003, as on the contrary her condition then was relatively stable. He pointed out that between 2003 and 2005 there were more Royal Navy personnel in Afghanistan than at sea, and that those carrying out onshore duties were required to work extraordinary hours under considerable pressure just to deliver the various jobs that needed to be done at home as well as overseas. He also argued that he had been unfairly disadvantaged because the original handwritten records of his consultations with the consultant psychiatrist between December 2003 and December 2005 were missing from his service records.

 

26.  It is not for me to engage in a complete review of the Tribunal’s findings of fact. Although the Upper Tribunal has the power to find facts for itself, that possibility only arises if an error of law has been shown in the First-tier Tribunal’s decision. For the reasons that Mr Heppinstall gave, I am not satisfied that this was the case here.

 

27.  There plainly was evidence before the Tribunal that the Appellant’s late wife’s condition had deteriorated again in late 2003. That may or may not have been correct, but it was a finding of fact which was certainly open to the tribunal to make on the material before it. It follows that it was not a perverse or unreasonable finding, even if, as it transpires, it may have been wrong. The Appellant’s arguments go principally to the weight to be attached to various records, medical and otherwise, but that is an issue for the judgment of the fact-finding first instance tribunal. The Appellant also argued that the Tribunal had not made it clear to him that they would attach so much significance to this matter. However, this was a question which stemmed from the tribunal’s deliberations and evaluation of all the evidence. The Tribunal had also adjourned and gone part-heard in order to give the Appellant a further opportunity to produce evidence to support his case. I am therefore satisfied that no procedural unfairness was involved.

 

28.  The loss of the handwritten notes of the consultations with the consultant psychiatrist was plainly most unsatisfactory and regrettable. However, I had refused permission to appeal on this matter as a separate ground based on a natural justice challenge. In doing so I bore in mind that the Tribunal had before it a range of other evidence from the same consultant psychiatrist, some of which was contemporary to the period in question, as well as other medical evidence. The Tribunal can only decide the case on the evidence before it. The Tribunal also expressly found that if those missing notes had included any significant work-related stress issues, then they would have expected to have seen reference to those in the consultant’s contemporary reports as well as in the EMIS records. However, as the Tribunal found, “they are not; instead the consistent picture is of genuine concern for the awful position in which the Appellant found himself due to his wife’s prolonged illness and active support for him in the form of monthly sessions” with the consultant psychiatrist (statement of reasons at [31]).

 

29.  I therefore agree with Mr Heppinstall that the Tribunal has found facts that were open to it to find, and has given adequate reasons for its decision. This was one of those relatively rare cases where the Secretary of State had discharged the demanding burden of proof placed upon him by Article 40 of the SPO. As Mr Heppinstall also observed, the Tribunal had found that during this period service was simply the setting for the Appellant’s adjustment reaction, and not a cause of it.  In short, the Tribunal’s conclusion was that the Appellant had been coping with his job up until December 2005 and, as Mr Heppinstall put it, “had not crossed that nebulous boundary where stress is a factor of service”.

 

30.  The causation ground of appeal accordingly does not succeed in relation to the SPO decision. I have to say that it is possible that on another day another tribunal might have come to a different decision on this issue. The chances of that happening might well have been increased if the consultant psychiatrist’s missing handwritten records had been retrieved. They might also have been increased if the medical records of his late wife’s treatment had been produced. The outcome might also have even different if the Appellant had given full details to the Tribunal below of the complaint of bullying which he mentioned in passing to me but had not raised previously. However, none of these “ifs” means that the present Tribunal’s decision was perverse or irrational or otherwise discloses any error of law.

 

The AFCS claim

31.  The position with regard to the AFCS claim was rather more straightforward. As the Tribunal correctly directed itself, the issue was whether the Appellant had shown on the balance of probabilities that his adjustment reaction was wholly or predominantly caused or worsened by his AFCS service after April 6, 2005 (statement of reasons at [13(b)]). The Tribunal dealt with this issue at paragraphs [34] to [43] of its statement of reasons, analysing the available evidence in some detail. Its conclusion was that the Appellant’s condition deteriorated from December 2005, when his late wife was given a reduced prognosis of her life expectancy. While acknowledging that during his AFCS service the Appellant faced a number of work-related stresses, the Tribunal decided that the predominant cause of this worsening was his reaction to his wife’s deteriorating condition, and not service factors.

 

32.  That conclusion was plainly one that was open to the Tribunal on the evidence before it. The letters from those medical practitioners who had treated the Appellant at the relevant time, and which had been obtained after the first adjourned hearing, were clear that work-related stress was a factor but did not provide any view as to the predominant cause. As the consultant psychiatrist wrote, the Appellant had been downgraded in December 2005 “as you were under considerable stress from both the work demands and the deterioration of your wife’s breast cancer”. The consultant psychologist was even more explicit: “It is difficult, and I would suggest impossible to separate out the relative contribution each of these two stressors played in relation to your difficulties during this period but I do consider both played a part”. On that evidence, and on the evidence as a whole, the Tribunal reached the only decision realistically open to it on the question of causation under the AFCS. Indeed, in fairness to the Appellant, he acknowledged as much at the oral hearing of the appeal, when he accepted that for the period of AFCS service the effects of his late wife’s illness was the predominant cause of his worsening condition. Entirely understandably, he referred to her illness as the “overwhelming factor”.

 

Conclusion

33.  For the reasons explained above, the Tribunal’s combined decision involves no error of law. I must therefore dismiss the appeal (Tribunals, Courts and Enforcement Act 2007, section 11).

 

 

 

 

Signed on the original                                               Nicholas Wikeley

on 18 June 2014                                                         Judge of the Upper Tribunal