Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CAF/1289/2013

ADMINISTRATIVE APPEALS CHAMBER

Before Upper Tribunal Judge Rowland

Decision:  The Secretary of State’ appeal is allowed.  The decision of he First-tier Tribunal dated 21 November 2012 is set aside and the case is remitted to a differently-constituted panel of the First-tier Tribunal to be re-decided.  The Secretary of State is directed to make a short written submission to the First-tier Tribunal, within one month of this decision being sent to him, setting out and explaining his current stance in this case.

REASONS FOR DECISION

1. This is an appeal, brought by the Secretary of State with my permission, against a decision of the First-tier Tribunal given on 21 November 2012, whereby it allowed an appeal by the claimant and decided that the claimant was entitled to an award under the Armed Forces and Reserve Forces (Compensation Scheme) Order 2005 (SI 2005/439), as amended and as in force from 15 December 2008, at tariff level 8, based on item 1 of Table 3 in Schedule 4 to the Order, instead of at tariff level 12, based on item 4 of Table 3, which is what the Secretary of State had decided was appropriate.  The practical distinction is significant.  The Secretary of State awarded £9,075 but an award at level 8 would then have been £48,875.

2. At the material time, Table 3 was in these terms –

“Table 3 - Mental disorders(*)

(*) When applied to any disorder, the expression “functional limitation and restriction” means difficulty in executing an activity or requirement to avoid an activity because of the risk of recurrence, or of delayed recovery or of injury to self or others as a direct result of the disorder itself.

(*) In assessing functional limitation and restriction for mental disorders account shall be taken of psychological, social and occupational function.

(*) Functional limitation and restriction is likely to be severe where symptoms or behaviours include mania, delusions, hallucinations, severe depression with suicidal preoccupations or abnormal rituals.

(*) Mental disorders must be diagnosed by a relevant accredited medical specialist.

(*) Any references to duration of effects in column (b) are from date of injury or onset of illness.”

3. The claimant had served for early twelve years in the Army before he was discharged in November 2008.  He had been an infantryman and his service had included tours in Northern Ireland, Iraq and Afghanistan.  He made a claim for a war disablement pension in April 2009 but, at least insofar as it related to the claimant’s mental health, the Secretary of State treated it as also a claim under the 2005 Armed Forces Compensation Scheme.  The Secretary of State accepted that the claimant was suffering from post-traumatic stress disorder as a result of service in the Army in Afghanistan in 2007 and 2008 and made his initial decision to make an award at level 12 on the basis of existing medical records. 

4. When the claimant’s appeal first came before the First-tier Tribunal on 24 August 2011, the Secretary of State was directed to obtain a report from a consultant psychiatrist.  Such a report was duly obtained from Dr Martin Eales FRCPsych and the claimant took the opportunity to obtain a second opinion from Dr David Roger Thomas FRCPsych although, in the event, there was a substantial amount of agreement between the psychiatrists.  In particular, both thought that the claimant’s symptoms would continue for some time.  However, the reports also raised a question as to the date of onset of the claimant’s mental heath condition, which resulted in the next hearing before the First-tier Tribunal, on 19 April 2012, being adjourned.

5. When the case came back before a third differently-constituted panel of the First-tier Tribunal on 21 November 2012, the claimant conceded for the purpose of his claim that the condition had not been the result of his tours of duty in Northern Ireland and Iraq before the 2005 Scheme came into force.  Regrettably, the Secretary of State had not made a written submission to the First-tier Tribunal as to which item in Table 3 he considered best described the claimant’s condition in the light of the new psychiatric evidence.  However, his representative, Mr Frith, conceded at the hearing that the claimant’s condition was likely to last for at least 5 years and so conceded that an award based on item 4 was inappropriate.  Instead, he submitted that item 3 would be appropriate.

6. The First-tier Tribunal, having considered the evidence and dictionary definitions of the word “permanent”, considered that the claimant’s condition was permanent and so potentially within the scope of items 1 or 2.  It then considered whether the condition caused “severe” or “moderate” functional limitation and restriction, saying –

“Mr Frith stated in his submissions that the question of whether the impairment was severe or moderate was a medical one.  Dr Thomas calls the symptoms both ‘severe’ and ‘significant’, whereas Dr Eales (the Regional Psychiatrist) refers to ‘prominent symptoms’.  Prominent is defined in Collins as being something ‘standing out from its surroundings; noticeable’ which is closer to the notion of severe, than of moderate which may be defined as ‘average’ (per the OED) and ‘mild’ or ‘of average quality and extent’ (per Collins).  Taking account of these definitions, we find that Dr Eales was also of the opinion that his symptoms were severe.

The appellant and his father described nightmares, hyper-vigilance, restrictions in driving, socialising and working.  Indeed, he is able to work as a carpenter for only 2 weeks out of 7 on average.  The work is offered to him by friends, who make allowances and adaptations on site to accommodate his PTSD.  In effect his working capacity is hugely restricted. 

7. The Secretary of State now appeals on the ground that the First-tier Tribunal erred in law in resorting to dictionary definitions, rather than considering the structure of the Scheme. 

8. In relation to whether the claimant’s condition was “permanent”, he concedes that the First-tier Tribunal reached the right conclusion but he argues that “Table 3 has a clear hierarchy of levels which demonstrate that any condition which lasts beyond 5 years is to be considered as permanent”.

9. In relation to whether the claimant’s condition was “severe”, rather than either “moderate” or, possibly, less than “moderate”, the Secretary of State in effect argues that the First-tier Tribunal’s statement of reasons fails to show whether it considered the third of the notes to Table 3, which provides that “Functional limitation and restriction is likely to be severe where symptoms or behaviours include mania, delusions, hallucinations, severe depression with suicidal preoccupations or abnormal rituals”.  He submits that, as the claimant did not have any of those symptoms, the implication of the note is that functional limitation and restriction is unlikely to be severe. However, in paragraph 17 of his submission, he submits that the case should be remitted to the First-tier Tribunal and that “there should be directions for the obtaining of up-to-date psychiatric treatment records and an updating report from Dr Thomas (instructed jointly) specifically considering the Third Note to Table 3”.

10. I granted permission to appeal because I accepted that it was arguable that the First-tier Tribunal had erred in not having regard to the relevant note to Table 3.  However, I added –

“On the other hand, as the claimant’s father has pointed out in his submission to the First-tier Tribunal Chamber President, the key words in that note are “is likely to be” and the note does not purport to be exhaustive.  The Secretary of State does not submit that the evidence in the papers is such that the Upper Tribunal should substitute an award at either level 9 or level 10 if I accept that the wrong test was applied.  Is the implication of paragraph 17 of the Secretary of State’s submission that the Secretary of State had failed to obtain sufficient evidence to allow the First-tier Tribunal to make a decision as to whether the functional limitation was moderate, severe or less than moderate?  If there was sufficient evidence, was the decision the First-tier Tribunal reached one that was open to it and, if so, why should the Upper Tribunal disturb it even if the First-tier Tribunal ought to have made a reference to the relevant note to Table 3?  I observe that the equivalent note in the 2011 Scheme is very different and the tariff levels in the equivalent table are higher.  Might a generous approach to the 2005 Scheme be appropriate?

I am not currently convinced that the First-tier Tribunal erred in considering the ordinary meaning of “permanent” or that the Scheme shows that any condition lasting more than 5 years is to be considered permanent.  That is not the necessary implication of the Table, given the terms of the third item, which could include mental disorder of any level of functional limitation and restriction lasting at least 5 years but not permanent, so as to cover permanent minor functional limitation and restriction and long-term, but not permanent, moderate or severe functional limitation and restriction.  That would be a less generous interpretation but it is more literal and seems to have been the one considered by the First-tier Tribunal to be correct.  The point is not strictly relevant on this appeal in the light of the Secretary of State’s concession that the claimant’s condition in this case is permanent, but it might be desirable for the Secretary of State further to amend the 2005 Scheme so as to make it explicit that the first two items in Table 3 apply in any case where the functional limitation and restriction is likely to be severe or moderate for more than five years, if that is what is intended.”

11. Mr Glyn Tucker of the Royal British Legion submits on behalf of the claimant that the First-tier Tribunal did not err in law in not referring to the third note of Table 3.  He argues, first, that it is reasonable to assume that the note was in fact considered because the First-tier Tribunal had referred to the second note when directing the psychiatric reports and, secondly, that the First-tier Tribunal did not apply the third note to the facts of the claimant’s case because it was not applicable.  He does not accept that there is any implication that the functional limitation and restriction in a person who does not suffer from the types of symptoms mentioned in the note is unlikely to be severe.  He submits that the decision of the First-tier Tribunal was one it was entitled to make and that has been adequately explained. He refers to observations of Sir John Dyson SCJ delivering the judgement of the Supreme Court in MA (Somalia) v Secretary of State of the Home Department [2010] UKSC 49 and, as I understands it, implicitly argues that the Upper Tribunal should show the same caution before interfering with a decision of the First-tier Tribunal as the Court of Appeal has been urged to show before interfering with a decision of an expert tribunal.

12. The Secretary of State has decided not to reply, on the ground that no new issue has been raised by the claimant.  That means that no answer has been made to the questions I raised when I granted permission to appeal.  However, I have decided not to pursue answers at this level because doing so would cause further delay and might in the end not be particularly helpful.

13. I largely accept the claimant’s arguments as to the meaning of the third note to Table 3.  In particular, I do not accept the Secretary of State’s submission to the extent that he appears to argue that it is necessarily the implication of the note that a person who does not suffer from the symptoms is unlikely to have severe functional limitation and restriction.  The note might carry that implication but, read by itself, it might equally well be intended merely to make clear to decision-makers that those with those symptoms will nearly always be within the scope of item 1 whereas whether those with others are is an open question.  Which implication the note carries depends on a judgement as to where the dividing line is between items 1 and 2.  That involves consideration of the extent to which other symptoms of mental disorder are, or can be, as serious as the symptoms mentioned in the note but also consideration of the relationship of the levels of awards made in respect of those items and item 3.  The word “severe” is apt to take its colour from its context and, for that reason, I agree with the Secretary of State that its meaning cannot be ascertained by reference to dictionary definitions alone without reference to its place in Table 3 and to the third note to that Table.  Therefore, the fact that the claimant did not have any of the symptoms mentioned in that note was not by itself a good enough reason for not mentioning the note; the note was still potentially relevant to the determination of the meaning of “severe”.

14. I do not accept the claimant’s submission to the contrary.  Nor do I accept that the fact that a differently-constituted panel of the First-tier Tribunal plainly had the notes to Table 3 in mind when issuing directions over a year before the final hearing in November 2012 throws any light on whether the panel sitting on the later occasion took the third note into account in construing the word “severe”.

15. I have, on the other hand, considered whether it is right to assume that the First-tier Tribunal had regard to the note due to its experience in these matters.  MA (Somalia) v Secretary of State of the Home Department [2010] UKSC 49 is not directly in point, because the Upper Tribunal is at least as much an expert tribunal as the First-tier Tribunal on issues of law arising out of the Armed Forces Compensation Schemes.  On the other hand, there is the more general point that the Upper Tribunal ought not too readily to assume that the First-tier Tribunal has overlooked something merely because it has not mentioned it in its statement of reasons, particularly when it is a matter that must be familiar to it.  Moreover, the Secretary of State has not submitted that the decision reached by the First-tier Tribunal in this case was one that it could not properly have reached. 

16. However, in this particular case, it seems most unlikely that the First-tier Tribunal would not have included a reference to the third note in its statement of reasons had it properly had regard to it.  Its reasoning shows a clear analysis of the dictionary definitions but is silent as to the note to the table.  It was entitled to have regard to dictionary definitions but only if also having regard to the structure of the scheme and the notes to the Table.  I accept that I cannot be certain that it did have regard to the note but, since it was of the utmost importance that it should have done so and since one purpose of a statement of reasons is to enable the losing party and the Upper Tribunal to see whether or not a tribunal has erred in law by, inter alia, failing to have regard to material considerations, I am satisfied that this appeal should be allowed on the ground that the statement of reasons is inadequate.  I accept the Secretary of State’s submission that the case should be remitted to the First-tier Tribunal because the question whether the claimant’s functional limitation and restriction is severe or moderate is substantially a medical issue, albeit to be determined on the basis of a correct understanding of the law.

17. It seems to me that the Secretary of State must bear some responsibility for the First-tier Tribunal’s error.  Where new evidence is provided in the course of an appeal, the Secretary of State needs to consider at an early stage whether it affects his view as to the merits of the appeal.  If he considers that a different award is appropriate but that he has no appropriate power to review the decision being challenged, he should make a short submission to that effect to the First-tier Tribunal so that both the First-tier Tribunal and the claimant know what the Secretary of State’s position is and that the appeal is, at least in part, supported.  This might have two other advantages.  First, if the claimant were content with the new proposal, it might then be possible for the First-tier Tribunal to make a decision by consent without any need for the parties to attend a hearing.  Secondly, attempting to draft such a submission would have the effect of drawing to the Secretary of State’s attention any remaining deficiency in the evidence.  In any event, a submission to the First-tier Tribunal in support of an award under an Armed Forces Compensation Scheme should generally explain why, in the Secretary of State’s view of the circumstances of the case, the most nearly relevant alternative descriptors that would lead to an award at a higher level do not apply.  That is because that is likely to be the area of dispute at the hearing.  Had such a submission been made in this case, the Secretary of State would no doubt have drawn attention to the third note to Table 3 and the First-tier Tribunal would probably have taken it into account and recorded that it had done so.

18. I would also add that, where the Secretary of State has changed his stance since his last written submission to the First-tier Tribunal, it would be helpful if, in any application for permission to appeal to the Upper Tribunal, he were to state what he currently considers the appropriate award to be.  Doing so has the effect that, if permission to appeal is granted, the claimant can express either agreement or disagreement with the Secretary of State’s new stance when replying and it may be possible, even in some cases where there is disagreement, for the Upper Tribunal to give a final decision on the issue rather than remitting the case to the First-tier Tribunal.  Where a decision of the First-tier Tribunal is set aside on a statutory appeal to the Upper Tribunal, the Upper Tribunal has far greater powers to substitute its own decision for that of the First-tier Tribunal than either it or the Administrative Court would have in judicial review proceedings.  Even if it is not appropriate for it to exercise those powers, its guidance to the First-tier Tribunal is likely to be more focused if it knows what the respective contentions of the parties will be when the case is remitted.  In the present case, I am still unclear as to which item in Table 3 the Secretary of State now considers is appropriate in this case or whether he has come to the view that the current evidence is wholly insufficient to allow him to express a proper view.

19. I have not enquired further into these issues because Lord Boyce’s review of the 2005 Scheme has led to major changes in the material area and it may not now be to anyone’s advantage to explore in too much depth the inadequacies of the old scheme.  For the same reason and given the Secretary of State’s concession, I do not consider that I need say any more about the meaning of “permanent” in Table 3 than I did when I granted permission to appeal, save to draw attention to paragraph 93 of Elias LJ’s judgment in Secretary of State for Defence v Duncan [2009] EWCA Civ 1043; [2010]  AACR 5, which I had previously overlooked.

20. Finally, while the Secretary of State’s proposed direction for further evidence appears sensible, I consider that I should leave it to the First-tier Tribunal to consider what directions should be issued, not least because I am not entirely sure whether the Secretary of State envisages the claimant bearing part of the cost of jointly instructing Dr Thomas to make a further report and, if so, whether the claimant agrees.  However, the First-tier Tribunal needs to know where the Secretary of State now stands on the question of the level of award appropriate in this case.  Accordingly, I direct him to make a short submission to the First-tier Tribunal addressing that issue.

Mark Rowland

21 February 2014