Secretary of State for Defence v President of the Pension Appeal Tribunals (England & Wales) [2004] EWHC 141 (Admin) (04 February 2004)

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England and Wales High Court (Administrative Court) Decisions

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: http://www.bailii.org/ew/cases/EWHC/Admin/2004/141.html
Cite as: [2004] 2 All ER 159, [2004] EWHC 141 (Admin)

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		Neutral Citation Number: [2004] EWHC 141 (Admin)
		Case No: CO/4310/2002

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

4th February 2004

B e f o r e :

THE HONOURABLE MR JUSTICE NEWMAN
____________________

Between:

	SECRETARY OF STATE FOR DEFENCE	Claimant
	- and -
	PRESIDENT OF THE PENSION APPEAL TRIBUNALS (ENGLAND & WALES)	Defendant
	- and -
	DAVID DONALD JONES	Interested Party

____________________

Steven Kovats (instructed by Treasury Solicitor) for the Claimant
John Litton, Friend to the Court
Hearing date : 15th December 2003
____________________

HTML VERSION OF JUDGMENT
____________________

Mr Justice Newman :

This is an application for Judicial Review bought by the Secretary of State for Defence concerning the decision of the President of Pensions Appeal Tribunals (England & Wales) dated 19^th June 2002 to set aside, pursuant to Rule 37 of the Pensions Appeal Tribunal (England & Wales) Rules (SI 1980/1120) (the Rules"), the decision of a Pensions Appeal Tribunal ("the PAT") dated 27^th February 2002. The PAT had dismissed Mr Jones' appeal from the Secretary of State's decision, dated 20^th July 2001, to refuse him an allowance under Article 17 of the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order (SI 1983/883) ("Article 17") in connection with his service pension. Mr Jones applied to the PAT for leave to appeal to the High Court and on the 19^th June 2003 the President issued a direction under Rule 37 of the Rules purporting to set aside the PAT's decision and ordered a rehearing before a differently constituted PAT.

On 22^nd February 1962 Mr Jones was awarded a service pension for bronchial asthma and Colles fracture of the right wrist arising from his service as a private in the Army (ROAC) between 26^th November 1954 until 7^th July 1961. On 13^th July 1999 Mr Jones applied for a clothing allowance under Article 17. The Secretary of State refused his application. Mr Jones' appeal to the Tribunal was refused on 27^th February 2002.

Thereafter, on 10^th March 2002, Mr Jones applied to the Tribunal under Rule 25 of the Rules for leave to appeal the Tribunal's decision to the High Court. On 19^th June 2002 the President of the Tribunals, on his initiative, pursuant to Rule 37 of the Rules, made/gave a direction that the Tribunal's decision be set aside on account of an irregularity under Rule 5 of the Rules. The irregularity was stated as being that the Secretary of State's Statement of Case "did not really meet the claimant's case about the link between his asthma and the soiling of his clothes…". The President has produced a document setting out his observations attached to which are a number of earlier decisions in different cases reached pursuant to Rule 37.

Following a decision by the President not to be represented at the hearing of the claim by the Secretary of State for Defence, the Court requested and the Solicitor General agreed to the appointment of an Advocate to the Court. Mr Jones as the Interested Party and person directly affected by any decision of the Court has also been unrepresented. Another case (CO/4669/2002) where Major Lawson was the Interested Party and which the Court had ordered to be heard at the same time as the present case has been settled by Secretary of State for Defence withdrawing his claim.

The Pensions Appeal Tribunals Act 1943 ("the 1943 Act") makes provision, inter alia, for servicemen who have had claims in respect of disablement arising out of their military service rejected, and against other decisions by the relevant minister affecting awards in respect of such claims, to appeal to the PAT. Section 1 of the 1943 Act applies to the rejection of war pension claims made by members of the naval, military or air forces and provides that:-

"(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."

Section 5A inserted into the 1943 Act by section 57(1) of the Child Support, Pensions and Social Security Act 2000 provides as follows:-

"(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."

Pursuant to the Pensions Appeal Tribunals (Additional Rights of Appeal) Regulations 2001 SI 2001/1031 ("the 2001 Regs."), made in exercise of the power conferred on the Secretary of State for Social Security by section 5A(2) of the 1943 Act, a decision by the Secretary of State for Defence made in relation to a claim for an allowance for wear and tear of clothing under the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 1983 ("the SPO") is a "specified decision" for the purposes of section 5A of the 1943 Act (see Regulations 2 and 3(1)(a) and (b)(ii) of the 2001 Regs. and the reference in the Schedule to Article 17 of the SPO). Article 17 of the Service Pensions Order provides as follows:-

"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."

Section 6 of the 1943 Act makes provision for the constitution, jurisdiction and procedure of the PAT. A number of subsections have been inserted into section 6 by various Acts since the 1943 Act was given Royal Assent. It provides as follows:-

"(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."

The Schedule to the 1943 Act makes further provision as to the constitution, jurisdiction and procedure of PATs and provides, inter alia, for the constitution of PATs, appointment of members and the appointment of a President of the PAT by the Lord Chancellor (see paras. 1, 2 & 2B). Paras. 3B, 3C and 5 of the Schedule provide as follows:-

"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."

The rules made under paragraph 5 of the Schedule to the 1943 Act are the Pensions Appeal Tribunals (England and Wales) Rules 1980 SI. 1980/1120 (i.e. the PAT Rules).

Rule 2 contains specific definitions including:

"(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."

Rule 4 provides as follows:-

"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."

Rule 5, insofar as is relevant, provides as follows:-

"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."

Rule 11 relates to the representation of the appellant and Secretary of State at any appeal hearing and Rule 11(3) imposes a positive duty on the PAT to assist any appellant who appears to be unable to make the best of his case.

Rule 14 confers on the PAT extensive powers to adjourn the hearing of an appeal for further information or evidence and Rule 15 empowers the PAT to take specialist medical advice where difficult medical or technical questions arise.

Rules 18 and 19 relate to the announcement and recording of a PAT's decision and provide as follows:-

"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."

Rule 20 reflects paragraph 5(1)(a) of the Schedule to the 1943 Act and makes provision for the hearing of an appeal in the absence of the parties or their representatives. Rule 20 insofar as is material provides as follows:-

"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."

A similar power to set aside a determination on application by the appellant exists under Rule 21(2) where the President is satisfied that an appellant through prolonged physical or mental infirmity is unlikely to be able to attend the PAT and the appeal is determined in the appellant's absence. As with Rule 20, the power to set aside the decision under Rule 21(2) is subject to the President first affording each party a reasonable opportunity to make representations.

Rule 25 sets out the procedure for applying for leave to appeal to the High Court and Rule 28 makes provision for the payment of an appellant's expenses of appealing or defending a decision of the PAT in the High Court (including the costs of applying for or resisting leave to appeal). Rule 29 makes provision for the payment of an appellant's costs where a joint application is made by the appellant and the Secretary of State under section 6(2A) of the 1943 Act.

Rule 32 makes provision for the making of interlocutory applications for directions and states:-

"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."

Rule 33 makes provision for the PAT to extend time for the doing of any act or taking any step in connection with an appeal which power extends to the procedural requirements set out in Rule 5, but the power is given "in connection with an appeal" and cannot be exercised after a decision on the appeal has been reached. However, the decision includes the "reasons" (see Article 18) and Rule 33 would enable time to be extended for the reasons of the PAT to be given.

Rule 37, which is at the heart of the present claim, provides as follows:-

"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 27^th February 2002

The PAT's original decision taken on 27^th February 2002 was to disallow Mr Jones' claim for clothing allowance. The reasons for the PAT's decision are set out in the document headed "Mr David D Jones: NINO: ZP 45 16 12D" which states, insofar as is relevant, as follows:-

"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 19^th June 2003 (setting aside its original decision)

The PAT's decision taken on 19^th June 2003 setting aside the Tribunal's original decision taken on 27^th February 2002 is contained in a document signed by HMC Concannon as Chairman and is headed "Directions". It states as follows:-

"1. Mr Jones' Appeal against the Secretary of State's decision refusing Clothing Allowance came before a Tribunal on 27^th 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

The PAT as a creature of statute derives its powers from the statute creating it.

Section 6(1) and paras. 3B and 3C(3) of the Schedule to the 1943 Act confers on the President of the PAT power to give directions as to the practice and procedure to be followed by the PAT including the power to vary or revoke directions previously given.

Section 6(2A) of the 1943 Act expressly provides for the PAT to be able to set aside a decision on an appeal on a joint application by the appellant and the Secretary of State where additional evidence comes to light or the PAT's decision is erroneous in point of law.

Section 6(1) and para. 5(1) of the Schedule to the 1943 Act together with Rules 20 and 21 of the PAT Rules expressly confer power on the President of the PAT to set aside a decision on an appeal determined in the absence of the appellant where the President considers that it is in the interests of justice to do so and arrange for the appeal to be re-heard before a differently constituted tribunal. But, whether the power is exercised under Rule 20 or 21, the President must give each party a reasonable opportunity to make representations.

Rule 37 of the PAT Rules gives the President power to give directions where there has been non-compliance with the PAT Rules for the purpose of mitigating the consequences of an irregularity but the limit in point of time of the power conferred by Rule 37 is the point at which a decision on the appeal is made by the PAT (see Akewushola v Secretary of State for the Home Department [2000] 1 WLR 2295 per Sedley LJ @ p.2301B).

Except in the circumstances provided for by section 6(2A) of the 1943 Act and Rules 20 and 21 of the PAT Rules, once the PAT has announced its decision it has no power to reconsider it or reopen the case subject to its decision being quashed by the High Court. See Wade & Forsyth p. 916 and Akewushola v Secretary of State for the Home Department [2000] 1 WLR 2295 per Sedley LJ @ p. 2301E where he said:-

"… 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 part of Sedley LJ's judgment in Akewushola was relied on by Scott-Baker J in Secretary of State for the Home Department v Immigration Appeal Tribunal [2001] QB 1224 who went on to say at para. 67:-

"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."

Section 6(2) of the 1943 Act confers on the appellant or Secretary of State a right of appeal to the High Court (subject to leave being granted) against a decision of the PAT. But subject to that right and the provision for the appellant and Secretary of State to make a joint application where additional evidence has come to light or the PAT's decision is erroneous in law (see section 6(2A) of the 1943 Act), the PAT's decision on any issue on which an appeal is brought under the 1943 Act is final and conclusive (see section 6(3) of the 1943 Act).

Issues

The claim gives rise to the following 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

The 1943 Act and PAT Rules properly construed do not confer any power on the President to set aside a decision on an appeal except in the circumstances provided for by section 6(2A) of the 1943 Act and Rules 20 and 21 of the PAT Rules. A decision on an appeal is arguably made when it is announced by the PAT following the hearing of the appeal or is communicated in writing to the parties pursuant to Rule 18 of the PAT Rules. It is at the very latest made when the Chairman of the Tribunal signs the Form of Decision and the Form of Decision is certified by the President and copies sent to the appellant and the Secretary of State pursuant to Rule 19(2) -(3) because at that point it becomes conclusive evidence of the PAT's decision on the appeal to which it relates (see Rule 19(4) of the PAT Rules).

Such a construction does not create any procedural or substantive unfairness to a losing party as they have a statutory right of appeal (save in an assessment appeal), subject to leave being granted, to the High Court against any decision taken by the PAT. Moreover, if the Secretary of State and the appellant agree that additional evidence has come to light or the PAT's decision is erroneous in point of law there is also express provision for a joint application to be made by the Secretary of State and the appellant to the President which, if granted, allows the decision to be treated as having been set aside and to direct the re-determination of the appeal. Further, in those circumstances the Secretary of State within 2 months of any such direction can himself review the decision which led to the appeal being made in the first place and come to a different decision (see section 6(2C) and (3) of the 1943 Act. In other words, where the PAT has made a decision on an appeal which ordinarily must be treated as being final and conclusive in accordance with section 6(3) of the 1943 Act provision is nonetheless made for that decision to be revisited by the Secretary of State (as the original decision taker) and the PAT in the particular circumstances set out in section 6(2A). So, for example, if additional medical evidence not before the PAT when the appeal was heard became available which might cause an appeal against a refusal of clothing allowance to be allowed instead of refused, or if the PAT had made an accepted error of law it would be unnecessary to appeal to the High Court and have the decision quashed before it could be re-determined by the PAT because section 6(2A) provides a short-cut which allows the PAT to reconsider the appeal.

Further, Rules 20 and 21 of the PAT Rules also make provision for the President to set aside a decision where an appeal has been heard in the absence of an appellant. Consequently, a construction of the 1943 Act and Rule 37 of the PAT Rules which precludes any general power to set aside a decision is neither inconsistent with the statutory scheme nor the acknowledged width of the discretion given to the PAT in determining appeals.

The submission is further supported by the temporal limitation on the power to mitigate the consequences of any non-compliance with the PAT Rules which is the point at which the PAT reaches a decision on the appeal (see Akewushola).

Issue 2

Even if the 1943 Act and PAT Rules could properly be construed as conferring a power on the President of the PAT to set aside a decision of the PAT where there had been an irregularity, natural justice would require any party affected by such a decision to be given an opportunity to make representations to the PAT. This, it is submitted, is a self evident proposition but is supported by Rule 19(4) which provides that a copy of a Form of Decision is conclusive evidence of the PAT's decision because express provision is made for the public to rely on the decision.

Moreover, a requirement to give an affected party the opportunity to make representations where the PAT is minded to set aside a decision because of an irregularity would be entirely consistent with the express provisions for setting aside a decision where an appeal has been determined in the absence of the appellant (see Rules 20 and 21). In such cases the power to arrange for an appeal to be re-heard is subject to: (1) an application being made to the President without undue delay; and (2) the President affording each party a reasonable opportunity to make representations. It is difficult to conceive of a case where even if he had the power to do so the President could unilaterally and without any reference to either of the affected parties simply direct that a decision should be set aside and the appeal reheard.

Issue 3

The irregularity relied upon by the PAT as justifying the setting aside of the original decision was that the Statement of Case did not meet Mr Jones' claim that it was the medication he took for his asthma (an accepted disablement) that caused the sweats and nosebleeds which soiled his clothes and bedding (see PAT's decision 19^th June 2002).

Rule 5(1) of the PAT Rules requires the Secretary of State to prepare a document to be called a "Statement of Case" which is required to contain: (1) the relevant facts (including the appellant's relevant medical history) relating to the appellant's case as known to the Secretary of State; and (2) in the case of an entitlement appeal, the Secretary of State's reasons for making the decision against which an appeal is brought.

In the present case Mr Jones' application to the War Pensions Agency for clothing allowance was dated 5^th June 2001. His application was refused on 20^th July 2001. Mr Jones appealed to the PAT. The Secretary of State prepared a Statement of Case containing the relevant facts and it being an entitlement appeal, his reasons for making the decision Mr Jones answered the Secretary of State's Statement of Case attaching statements and documents. In his supplementary statement he said:-

"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."

In an undated response the Secretary of State commented on Mr Jones' answers presumably in accordance with Rule 5(5) in a document headed "Secretary of State's Further Reasons for Decision" in which he said as follows:-

"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."

In responding to the Secretary of State's Further Reasons for Decision Mr Jones said, inter alia:-

"…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…"

Consequently, the issue as to whether or not the treatment for Mr Jones' accepted disablement was or was not causative of sweats etc at night was not overlooked by the Secretary of State but was a matter of dispute between him and Mr Jones. Moreover, the issue was one which was before the PAT albeit that the tribunal hearing his appeal does not appear to have appreciated the point that Mr Jones was making (see the PAT's original decision).

In the circumstances, the issue of jurisdiction apart, the rationale for the PAT unilaterally setting aside its decision on the basis that the Secretary of State had failed in his Statement of Case to meet Mr Jones' claim about the link between his asthma and the soiling of his clothes is not supported by the facts.

The President's Position, as it appears from the documents presented to the Court

It is apparent from the comments made by the President and the decisions attached to his comments that the Jones (and now settled Lawson) cases are not the first time the PAT has purported to use Rule 37 to set aside a decision reached on an appeal and remit it to a freshly constituted tribunal for re-hearing. Moreover, from those other decisions it is plain that: (1) the PAT has not always given the Secretary of State (discharging his duties through the War Pensions Agency) an opportunity to make representations; and (2) where the War Pensions Agency has been consulted it has on a number of occasions agreed to the original decision being set aside and the appeal being remitted to a fresh tribunal. There are nevertheless limits to the extent to which this Court should attempt to rule in connection with each of the other cases.

The following points can be seen to emerge. In the Lawson case (now settled), the Secretary of State at the fresh hearing had argued that the PAT had no jurisdiction to rehear the appeal for the same reasons advanced in the Skeleton Argument in the present case. However, the PAT rejected that submission on the following grounds relating to the construction of section 6(3) of the 1943 Act:-

It would be inconsistent to construe section 6(3) of the 1943 Act as prohibiting the PAT from setting aside a decision under rule 37 of the PAT Rules where Article 67(2A) of the SPO allows an assessment decision made by the PAT to be in reviewed by the Secretary of State and it cannot have been Parliament's intention to prevent the PAT from reviewing its own decision but allow the Secretary of State to do so (see para. 8);

If section 6(3) of the 1943 Act should be read with a qualifying implication which saves the power given to the Secretary of State by Article 67(2A) of the SPO to review a PAT decision such an implication should be read so as to allow Rule 37 to be used to set aside PAT decisions that have been reached in breach of the rules (see para. 9).

The words of Rule 37 which permit the President to direct that the proceedings on an appeal are "void" where there has been non-compliance with the PAT Rules do not limit the exercise of that power only to the breach of any rule but to the proceedings as a whole. Moreover, in practical terms, the President is only likely to be considering a remedy under Rule 37 of the PAT Rules after a Tribunal has reached a decision (see para. 10).

The PAT was established to provide a relatively informal, expeditious, accessible and economic means of appeal for claimants. This is reflected in the PAT Rules which provide for the costs of a claimant on an appeal to the High Court against a PAT's decision to be met by the Lord Chancellor. Given this context it would be extraordinary if the only remedy available to the claimant where the PAT had failed to give reasons for its decision was by way of Judicial Review in an assessment appeal which is not an appeal on the merits and which may be costly to make (see para. 11).

If the Secretary of State's argument as to the construction of section 6(3) of the 1943 Act is correct then logically Rule 20(5) of the PAT Rules which gives the PAT power to set aside a decision reached in the absence of the parties is also ultra vires and Parliament cannot have intended when amending the 1943 Act to insert section 6(2A) to make the power under Rule 20(5) of the PAT Rules to set aside a decision reached in the appellant's absence given also ultra vires.

It appears from the President's comments that the setting aside of decisions reached on appeals under Rule 37 of the PAT Rules is an established practice which has been assented to by the War Pensions Agency and, in some cases, suggested by the Secretary of State's representatives.

Further, and in relation to Mr Jones' case, it is apparent from the President's comments that the reason why the President set aside the decision reached by the PAT on 12^th February 2003 was that in the Chairman's view "… the Tribunal's Reasons for Decision were inadequate because they did not deal with the Appellant's main argument" and, therefore, there was an arguable case that "…the Tribunal's Decision was erroneous as a matter of law". Moreover, it was because the PAT perceived that it had made an error of law and because "… the Chairman suggested that there might be an appropriate alternative to giving permission to appeal to the High Court" that the President set aside the original decision under Rule 37. No indication has been given as to why the Secretary of State was not given an opportunity to make representations on that proposed course of action.

Conclusions

Firstly, it is not relevant to the proper construction of the Rules that the Secretary of State through the War Pensions Agency has in the past consented to a decision of the PAT being set aside under Rule 37 or even proposed that the President should set aside an appeal decision. Jurisdiction in this regard cannot be conferred by consent.

Secondly, there is no inconsistency between the ability of the Secretary of State to review a decision of the PAT pursuant to Article 67(2A) of the SPO and the 1943 Act and PAT Rules. The powers defined by the SPO are pursuant to an Order in Council made in the exercise of the royal prerogative pursuant to section 12(1) of the Social security (Miscellaneous Provisions) Act 1977 whereas the PAT Rules are made under the 1943 Act. Moreover, the ability of the Secretary of State to review a decision of the PAT under Article 67(2A) is only exercisable where he is satisfied that there has been a relevant change of circumstances since the decision was made, including any improvement or deterioration in the disablement. This reflects the Secretary of State's on-going obligation to make proper provision for servicemen and the inevitable changes that may occur in their disablements in respect of which they are entitled to assistance. By way of contrast, the PAT's function, important though it is, is to adjudicate between an appellant (whose application for assistance has been refused) and the Secretary of State (whose decision it was to refuse it) on the facts known at the time.

Thirdly, the power to set aside a decision on an appeal conferred by Rules 20 and 21 is expressly provided for by para. 5(1)(a) of the Schedule to the 1943 Act whereas the 1943 Act does not make any provisions for the making of rules for dealing with irregularities and more particularly for the setting aside of a decision where there has been non-compliance with the Rules. Although it could be argued that para. 5(1)(a) of the Schedule only gives the Lord Chancellor the power to make rules with respect to the manner of hearing appeals where an appellant is absent and does not extend to giving the President power to set aside a decision once it has been taken, the ability to set aside such a decision is a necessary safeguard against the effects of decisions which are taken in the absence of the appellants and can properly be read into the 1943 Act.

Fourthly, although the statutory right of appeal and the power of the PAT to set aside a decision on an appeal under section 6(2A) of the 1943 Act on a joint application by the appellant and the Secretary of State where there is new evidence or the PAT's decision is erroneous in point of law is restricted to entitlement appeals, that appears to have been the plain intention of Parliament. Indeed the anomaly created by a statutory right of appeal to the High Court against a decision of the PAT on an entitlement appeal and the necessity to challenge a decision on an assessment appeal by judicial review has always existed as the amendments to section 6(2) of the 1943 Act made by the Child Support, Pensions and Social Security Act 2000 only substituted the words "sections 1, 2, 3 or 5A" for the words originally enacted, namely "section one" to "four" (see section 57(2) of the Act).

As regards the PAT's practice of using Rule 37 to set aside decisions on appeals evidenced by the decisions attached to the President's comments, there appears to be no consistency as to when the War Pensions Agency is or is not given an opportunity to make representations. However, if the 1943 Act and Rule 37 do give the President power to set aside decisions reached by a Tribunal on an appeal where there has been an irregularity, it would be consistent with the principle of natural justice that a party affected by a decision to set aside an earlier PAT decision and remit the appeal to be reheard should be given an opportunity to make such representations as he might wish.

Further, it appears plain from the President's comments that the rationale for setting aside the PAT's decision in this case relates not to a failure by the Secretary of State to comply with Rule 5 of the PAT Rules but because the PAT recognised that its reasons for dismissing Mr Jones' appeal had not addressed Mr Jones' principal argument and there had therefore been an error of law which would have entitled Mr Jones to have permission to appeal to the High Court. In other words, the deficiency which caused the President to set aside the PAT's decision was not a failure by the Secretary of State in the preparation of the Rule 5 Statement of Case but a failure by the PAT to address Mr Jones' argument that it was the steroids which he was taking for his accepted condition which gave rise to the claim.

Conclusion

For the foregoing reasons, the President had no power to set aside the PAT's decision of 12^th February 2003 and/or that decision was taken in breach of natural justice and/or the reason given for exercising the power was irrational.

The case should be remitted to the PAT for directions in connection with Mr Jones' application for leave to appeal to the High Court.

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	England and Wales High Court (Administrative Court) Decisions
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: http://www.bailii.org/ew/cases/EWHC/Admin/2004/141.html Cite as: [2004] 2 All ER 159, [2004] EWHC 141 (Admin)

		Royal Courts of Justice Strand, London, WC2A 2LL
		4th February 2004