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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Secretary of State for Defence v President of the Pension Appeal Tribunals (England & Wales) [2004] EWHC 141 (Admin) (04 February 2004) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2004/141.html Cite as: [2004] EWHC 141 (Admin), [2004] 2 All ER 159 |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
SECRETARY OF STATE FOR DEFENCE |
Claimant |
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- and - |
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PRESIDENT OF THE PENSION APPEAL TRIBUNALS (ENGLAND & WALES) |
Defendant |
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- and - |
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DAVID DONALD JONES |
Interested Party |
____________________
John Litton, Friend to the Court
Hearing date : 15th December 2003
____________________
Crown Copyright ©
Mr Justice Newman :
"(1) Where any claim in respect of the disablement of any person made under any such Royal Warrant, Order in Council or Order of his Majesty as is administered by the Minister… is rejected by the Minister on the ground that the injury on which the claim is based-
(a) is not attributable to any relevant service; and
(b) does not fulfil the following conditions, namely, that it existed before or arose during any relevant service and has been and remains aggravated thereby;
the Minister shall notify the claimant of his decision, specifying that it is made on that ground, and thereupon an appeal shall lie to the Pensions Appeal Tribunal constituted under this Act… on the issue whether the claim was rightly rejected on that ground.
(2) Where, for the purposes of any such claim as aforesaid, the injury on which the claim is based is accepted by the Minister as fulfilling the conditions specified in paragraph (b) of the last foregoing subsection but not as attributable to any relevant service, the Minister shall notify the claimant of his decision, specifying that the injury is so accepted, and thereupon an appeal shall lie to the Tribunal on the issue whether injury was attributable to such service."
"(1) Where, in the case of any such claim as is referred to in section 1, 2 or 3 of this Act, the Minister makes a specified decision-
(a) he shall notify the claimant of the decision, specifying the ground on which it is made, and
(b) thereupon an appeal against the decision shall lie to the Tribunal on the issue whether the decision was rightly made on that ground.
(2) For the purposes of subsection (1), a "specified decision" is a decision (other than a decision which is capable of being the subject of an appeal under any other provision of this Act) which is of a kind specified by the Minister in regulations made by statutory instrument.
(3) Regulations under this section shall not be made unless a draft of the regulations has been laid before, and approved by a resolution of, each House of Parliament."
"17(1). A member of the armed forces who is in receipt of retired pay or a pension may be awarded an allowance in respect of wear and tear of clothing at the rate specified in paragraph 5 of Part IV…, where either-
(a) …; or
(b) the Secretary of State is satisfied that as a result of the disablement which gives rise to an award under this Order there is exceptional wear and tear of the member's clothing."
"(1) The provisions of the Schedule to this Act shall have effect with respect to the constitution, jurisdiction and procedure of Pensions Appeal Tribunals.
(2) Where, in the case of an appeal to the Tribunal under sections 1, 2, 3, 4 or 5A of this Act, the appellant or the Minister is dissatisfied with the decision of the Tribunal as being erroneous in point of law, he may, with the leave of the Tribunal or of a judge of the High Court nominated for the purpose by the Lord Chancellor appeal therefrom, within such time as may be limited by rules of court to the judge so nominated and the decision of that judge shall be final and conclusive…
(2A) Where, in the case of such a claim as is referred to in section 1, 2, 3, 4 or 5A of this Act-
(a) an appeal has been made under that section to the Tribunal and that appeal has been decided (whether with or without an appeal under subsection (2) of this section from the Tribunal's decision); but
(b) subsequently, on an application for the purpose made (in like manner as an application for leave to appeal under the said subsection (2)) jointly by the appellant and the Minister, it appears to the appropriate authority (that is to say, the person to whom under rules made under the Schedule to this Act any application for directions on any matter arising in connection with the appeal to the Tribunal fell to be made) to be proper so to do-
(i) by reason of the availability of additional evidence; or
(ii) (except where an appeal from the Tribunal's decision has been made under the said subsection (2)), on the ground of the Tribunal's decision being erroneous in point of law,
the appropriate authority may, if he thinks fit, direct that the decision on the appeal to the Tribunal be treated as set aside and the appeal from the Minister's decision (the "original decision") be heard again by the Tribunal.
(2B) …
(2C) Where a direction for a rehearing is given under subsection (2A) above, the Minister may, before the expiry of two months beginning with the date of the direction, review the original decision.
(2D) …
(3) Subject to subsections (2) and (2A) of this subsection, the decision of the Tribunal on any issue on which an appeal is brought under this Act shall be final and conclusive."
"3B The President of Pensions Appeal Tribunals for any part of the United Kingdom may give directions as to the practice and procedure to be followed by such Tribunals in that part of the United Kingdom.
3C(1) The power to give directions under paragraph… 3B shall be exercisable in relation to a particular appeal, to a category of appeal to appeals generally…
(2) …
(3) The power to give directions under paragraph… 3B above includes power to revoke directions previously given.
5(1). Subject as aforesaid, the Lord Chancellor may make rules with respect to-
(a) the manner of hearing of appeals by Pensions Appeal Tribunals and in particular appeals in cases where the appellant owing to illness or other cause is not present at the hearing;
(b) the mode of proof and admissibility of evidence;
(c) the representation of the appellant and the Minister at the hearing;
(d) the recording and proof of the decisions of the Tribunals;
and such other matters relating to the practice and procedure of the Tribunals as the Lord Chancellor thinks fit."
"(b) "appeal" includes an entitlement appeal, an assessment appeal and an appeal against a specified decision.
(jj) "specified decision" has the meaning given in section 5A of the [1943] Act."
"4(1) An appeal to a tribunal shall be commenced by a notice of appeal to the Secretary of State on an appropriate form…
(2) The appropriate form of notice of appeal shall be supplied by the Secretary of State on request.
(3) A notice of appeal shall be signed by the appellant, or as the case may be, by the person acting on behalf of the appellant, and shall bear the date on which it was signed, and shall be sent by post addressed to the Secretary of State for Defence."
"5(1) Subject to the provisions of rules 6, 9 and 22, the Secretary of State shall, on receipt by him of a notice of appeal, prepare a document (to be called a "Statement of Case") containing the following information-
(a) the relevant facts relating to the appellant's case as known to the Secretary of State, including the relevant medical history of the appellant; and
(b) in the case of an entitlement appeal, the Secretary of State's reasons for making the decision against which the appeal is brought.
(2) When the Statement of Case has been prepared, the Secretary of State shall send two copies to the appellant and shall inform him that he may, if he so desires, submit (on a form to be supplied by the Secretary of State) an answer to the statement indicating-
(a) Whether, and in what respect, the facts in the Statement of Case are disputed;
(b) Any further facts which, in his opinion, are relevant to the appeal; and
(c) His reasons for thinking that the decision of the Secretary of State was wrong.
(3) Where the appellant submits an answer disputing any of the facts in the Statement of Case or putting forward further facts, he shall attach to his answer such documentary evidence in support of his case as is in his possession or as he can reasonably obtain.
(4) Except where the appellant is resident outside the United Kingdom, he shall send his answer, and any documents submitted therewith, to the Secretary of State within 28 days from the date on which the Statement of Case was sent to him.
(5) The Secretary of State may, if he so desires, comment in writing on the appellant's answer and, if he does so, the Secretary of State shall send a copy of his comments to the appellant.
(6) As soon as may be after receipt of the answer or, if the appellant does not send an answer, on the expiration of the said 28 days… the Secretary of State shall, subject to the provisions of rule 9, send to the Pensions Appeal Office-
(a) Three copies of the Statement of Case;
(b) Three copies of the appellant's answer (if any);
(c) Any documents submitted by the appellant; and
(d) Three copies of any comments made by the Secretary of State on the appellant's answer."
"18. The decision of the tribunal may, at the discretion of the tribunal, be announced by the chairman immediately after the hearing of the case, or may be communicated in writing to the appellant and the Secretary of State within seven days after the tribunal has reached its decision, and in either case the chairman shall indicate the tribunal's reasons for its decision.
19(1) The clerk of the tribunal shall enter, in a book to be kept by him for the purpose, a minute of every decision of the tribunal.
(2) The chairman of the tribunal shall sign a document (to be called a "Form of Decision") recording the decision on the appeal and it shall be the duty of the clerk to the tribunal to transmit the Form of Decision to the Pensions Appeal Office.
(3) Copies of the Form of Decision shall be prepared in the Pensions Appeal Office, and shall be certified under the hand of an officer authorised in that behalf by the President, and a copy so certified shall be sent to the appellant and to the Secretary of State.
(4) A copy of a Form of Decision purporting to have been certified as aforesaid shall be conclusive evidence of the decision of the tribunal on the appeal to which that Form of Decision relates and shall be available for public inspection."
"20(2) If a party fails to attend or be represented at a hearing of which he has been duly notified, the tribunal may-
(a) unless it is satisfied that there is sufficient reason for such absence, hear and determine the appeal in the party's absence; or
(b) adjourn the hearing, giving written reasons for the adjournment.
(5) Where an appeal has been determined under paragraph (2)(a) and the appellant applies to the President, without undue delay, for the decision to be set aside, the President may, if after affording each party a reasonable opportunity to make representations he considers that the interests of justice so require, grant the application and arrange for the appeal to be reheard before a differently constituted tribunal; and he may make such further order as he thinks fit."
"32(1) The appellant or the Secretary of State may at any time apply to the President for directions on any matter arising in connection with the appeal, or with an application to the tribunal for leave to appeal to the judge of the High Court.
(2) An application for directions shall state the matter on which the directions are required.
(3) The President shall communicate the nature of the application to the Secretary of State or, as the case may be, to the appellant together with a statement that the Secretary of State or the appellant may comment thereon in writing, if he so desires, and before giving his directions the President shall consider any comments furnished to him.
(4) Any directions given by the President under this rule shall be communicated to the appellant and to the Secretary of State.
(5) If an appellant fails to comply with a direction given to him by the President under this rule, the President may direct the case to be placed in the deferred list."
"37. Non-compliance with any of these Rules shall not render the proceedings on the appeal void unless the tribunal or the President shall so direct, but the tribunal or the President may give such directions for the purpose of mitigating the consequences of the irregularity as the justice of the case may require."
PAT's Decision 27th February 2002
"In the case of David Donald Jones… The Appellant was represented by the Royal British Legion. The Appeal was heard in his absence.
The War Pensions Agency relied on the statements by the Secretary of State. They contend that any worsening of the aggravated condition since service release cannot relate to service.
The Royal British Legion on behalf of Mr Jones, drew attention to the argument he has put forward.
The Tribunal understands, particularly from the notes of meeting on 23.2.2000 (Page 25 of one of the supplements) that Mr Jones complaints that his clothes are soiled because of sweats, nose bleeds, and vomiting not incontinence.
Mr Jones has a current assessment for his Asthma of 20% - aggravated by service. He suffers from a number of other conditions. There is no medical record to believe that any of the other conditions (listed by the Orthopaedic Specialist at Page 32) could have caused the sweating, vomiting, or nose bleeds, other than the possibility of the aspirin taken for thrombosis could contribute to the nose bleeding. The Tribunal notes that the Appellant states he wears thermal underwear. This factor, though unrelated to treatment for Asthma, could certainly contribute to his sweating.
There is no medical support for the argument that Asthma causes sweating, or vomiting, or nose bleeds, though in this last matter such could be contributed to by the wearing of oxygen masks.
The Tribunal sees no reason to dissent from the Secretary of State's rejection.
The claim for Clothing Allowance is disallowed."
PAT's Decision 19th June 2003 (setting aside its original decision)
"1. Mr Jones' Appeal against the Secretary of State's decision refusing Clothing Allowance came before a Tribunal on 27th February 2002. The Tribunal's Decision was to disallow the Appeal.
2. Mr Jones subsequently made an application for leave to appeal to the nominated Judge against the Tribunal's Decision on the grounds of error of law.
3. I am satisfied that the Statement of Case in question did not really meet the claimant's case about the link between his asthma and the soiling of clothes - steroids and medicine to clear his lungs led to excessive sweating and heavy coughing and nose bleeding. I am accordingly satisfied that there is an irregularity for the purposes of Rule 5 of the Tribunal's Rules.
4. I consider it to be in the interests of justice to set aside the Tribunal's Decision under Rule 37 of the Tribunal's Rules.
5. In doing so I give the following Directions…"
The Statutory Context
"… I do not think that, slips apart, a statutory tribunal - in contrast to a superior court - ordinarily possesses any inherent power to rescind or review its own decisions. Except where the High Court's jurisdiction is unequivocally excluded by privative legislation, it is there that the power of correction resides)."
and at p. 2301H:-
"If something has gone procedurally wrong which is capable of having affected the outcome, it is to the High Court if necessary on a consensual application that recourse must be had."
"The relevant rules expressly provide for self-correction by the tribunal at any time before it reaches a decision. It matters not whether the decision was taken at a preliminary hearing or before a single chairman. Where a legislative scheme provides express powers of self-correction one does not expect to find an implied power to revoke decisions. In my judgment the law is as stated by Sedley LJ in Akewushola's case. What is critical is that the decision to remit the appeal to an adjudicator for adjudication is a decision which disposes of the appeal to the tribunal, after which the power to cure irregularities given by the rules can no longer be exercised."
Issues
Issue 1 - Whether the PAT Rules properly construed give the PAT power to set aside a decision on an appeal reached by the tribunal.
Issue 2 - If so, whether or not in setting aside the decision reached by the PAT on Mr Jones' appeal the PAT acted in breach of natural justice.
Issue 3 - If there was power to set aside the decision and the PAT did not act in breach of natural justice, whether there was an irregularity which entitled the PAT to set aside the decision.
Issue 1
Issue 2
Issue 3
"I suffer from a great deal of bed wetting and clothing wetting at regular periods when my carer cannot react quick enough to my needs - this wetting is brought on because of the treatment I have to take for my war disability of Bronchial Asthma (damaged lungs) which leaves a continuous build up of fluids in the lungs - to disperse this fluid I have to take BUMETANIDE for the rest of my life…
On medical advice I was advised to bring this point to your attention as this is another main reason for damage to my clothing etc. which soils and also relates to wear and tear."
"Mr Jones is now contending that the steroid treatment for his accepted disablement of bronchial asthma could be aggravating his non accepted disablement of diabetes and causing bad sweats and bed wetting; also that his lack of mobility due to his accepted disablements is resulting in additional wear and tear of his clothing. Mr Jones is also disputing the 'aggravated' label in respect of his bronchial asthma.
In response to these contentions, War Pensions Agency Medical Services have confirmed that the 'aggravated' label of Mr Jones' bronchial asthma and the assessment of 20% remain appropriate. This level of assessment is not responsible for exceptional wear and tear of his clothing. Any subsequent deterioration in his chest condition is due to non service factors and the need for steroids does not relate to that percentage accepted for war pension purposes. Bed wetting is not accepted as part of Mr Jones' accepted disablement and again therefore is a non accepted disablement and unrelated to any wear and tear. Finally, Mr Jones' lack of mobility would not be responsible for abnormal wear and tear of clothing and in any case cannot be related to his accepted disablements."
"…I have always stated the effect steroids have on my conditions. I have informed the WPA to contact my GP and consultants plus make enquiries of independent medical specialists and they will find that the following can/does have the following effects
A/ Bed sweats - change of moods and anxiety…"
The President's Position, as it appears from the documents presented to the Court
Conclusions
Conclusion