CO/10543/2005 
Neutral Citation Number: [2007] EWHC 471 (Admin)
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION  
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2 

Wednesday, 31 January 2007
 
B E F O R E:

MR JUSTICE LANGSTAFF 

‑ ‑ ‑ ‑ ‑ ‑ ‑
THE QUEEN ON THE APPLICATION OF PATRICK BRENDON SCANLON
(CLAIMANT)

‑v‑ 

THE PRESIDENT OF THE PENSIONS APPEAL TRIBUNALS
(DEFENDANT)

THE SECRETARY OF STATE FOR DEFENCE 
(INTERESTED PARTY)

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MR CONOR GEARTY (instructed by Gamlins) appeared on behalf of the CLAIMANT
THE DEFENDANT DID NOT APPEAR AND WAS NOT REPRESENTED 

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J U D G M E N T 
1.	MR JUSTICE LANGSTAFF:  The Pensions Appeal Tribunal hears appeals for which provision is made by the Pensions Appeal Tribunals Act 1943.  Section 1(1) of that Act provides: 
"Where any claim in respect of the disablement of any person ... 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 a Pensions Appeal Tribunal constituted under this Act..."  
2.	It is provided by section 5(1): 
"Where, in the case of any such claim as is referred to in section one ... of this Act in respect of the disablement of any person, the Minister makes an interim assessment of the degree of the disablement, he shall notify the claimant thereof ... and an appeal shall lie to the Tribunal from the interim assessment ... and from any subsequent interim assessment, and the Tribunal on any such appeal may uphold the Minister's assessment or may [alter the assessment in one or both of the following ways, namely‑ 
 (a) by increasing or reducing the degree of disablement it specifies; and 
 (b) by reducing the period for which the assessment is to be in force.]"
3.	It is accepted for the purposes of the argument before me, so far as I can tell by all parties (only the claimant having been represented in open court, but the defendant having sent a letter to the court which has been both thoughtful and helpful, and the interested party having filed an acknowledgment of service but indicated an intention not to be present to take part in this appeal) that this statutory framework is, in practical terms, dealt with by a two‑level layer of decision‑making.  First, it is to be decided whether an applicant is entitled to a war pension.  Secondly, and separately, it is to be decided what the assessment of the pension should be.  If, as will very often be the case, no final assessment can be made, an interim assessment, or, as it may be, a series of interim assessments, is then made.  
4.	This application concerns a decision made by the Pension Appeals Tribunal of 16 August 2005.  The background to that decision, which it is said is such that no reasonable Tribunal could have reached it, is that it is suggested that the way in which it was reached was procedurally unfair, amongst other things; in breach of the Article 6 rights of the claimant, and, thirdly, irrational in that it took into account irrelevant considerations and failed to take into account relevant ones, is this.  The claimant was born on 12 February 1945.  He is therefore now 61 years old.  Between 1966 and 1970 when he was 21 to 25, he served as a gunner in the Royal Artillery.  In 1970 he was medically discharged from service.  He applied for a war pension.  He claimed to have suffered psychiatric consequences in part, he said, as a result of bullying to which he had been subject in the Forces.  At first, that application was rejected by the Secretary of State.  After appeal, however, to an Appeals Tribunal, he was awarded a war pension.  It was accepted by the Pensions Appeal Tribunal, sitting on 23 November 1971, that he suffered from what was called psychoneurosis and should be entitled to a war pension assessed on an interim basis at 20 per cent.  The percentage level is in accordance with Regulations.  Those Regulations provide that above 20 per cent up to complete disablement (which is 100 per cent) assessments should increase, if appropriate, in 10 per cent steps.  Below 20 per cent a different provision is made, which is immaterial for present purposes.  
5.	Psychoneurosis may be to modern ears an old fashioned phrase.  The best modern descriptor of it is recurrent depression.  The claimant said that his condition deteriorated.  He claimed also that he suffered not just psychoneurosis, but back pain, which was attributable to his service between 1966 and 1970.  This claim, it appears, was first made in the 1990s.  It thus involved a decision being made by the Secretary of State and, upon rejection, by a Tribunal in the 1990s whether or not that injury could be   attributable to the service which the claimant had earlier had.  That decision as to entitlement appears to have been made by a Tribunal on 7 May 1997, when the claimant was then 52.  
6.	The same Tribunal increased the interim assessment to 30 per cent with effect from 19 July 1995.  That took account of the two further conditions to which it had then been found the claimant was entitled.  That was back pain and lumbar spondylosis.  It cannot sensibly be disputed that lumbar spondylosis is a degenerative condition of the lower spinal column.  
7.	On 23 March 1999, the assessment was increased by a Tribunal to 40 per cent with effect from 29 June 1998.  By a Tribunal of 4 December 2001, that was further increased to 50 per cent with effect from 27 February 2000.  That decision became subject of an appeal, and the 50 per cent was reduced to 40 per cent by a Tribunal of 25 February 2004 with effect from 14 January 2003.  On 6 July 2004, 40 per cent was confirmed with effect from 26 February 2004.  
8.	The claimant appealed against that determination.  That appeal was heard by the Tribunal whose decision is subject of this application.  By its determination of 16 August 2005, the Tribunal reduced the assessment to nil per cent with effect from 26 February 2004 and to run to 15 August 2007.  The claimant was told of this decision on 28 September 2005.  
9.	The issues apparent from the grounds of appeal served with form 461 appear to be whether a Pension Appeals Tribunal was entitled, when considering the assessment of an award rather than entitlement to one, to reduce an assessment to nil per cent; and secondly, whether this particular Tribunal in any event applied an appropriate approach to its determination of its assessment.  
10.	Before me, for reasons which will become apparent, the suggestion that a Tribunal had no power when considering assessment yet accepting entitlement to reduce an assessment to nil was first not pursued by Mr Gearty, who has appeared for the claimant, and later in his submissions accepted as being an entitlement of a Tribunal.  Thus, before me, it has been accepted in an appropriate case that a Pension Appeal Tribunal may, whilst recognising that entitlement to assessment of a pension in respect of a disablement exists, nonetheless assess the amount of pension or the amount of disability at nil per cent.  For explanation, a simple example of a situation in which that might occur was provided in the letter from the Tribunals Service, to which I have already referred.  That letter of 22 January 2007 gives as one example the case of asthma.  If asthma were aggravated by service, and it was accepted that that was so such that the serviceman concerned would be entitled to a pension in respect of disability caused to him by the asthma, one could envisage a situation in which he might for a considerable period of time nonetheless suffer no asthmatic symptoms.  That might give rise to a situation in which an assessment for the time being was nil.  It would leave open the question whether, if there were a recurrence of the asthma, perhaps because of an underlying vulnerability to it aggravated by service, that recrudescence of the asthma would be subject to compensation.  
11.	It is similarly not difficult to see that constitutional conditions may be aggravated by service.  That aggravation may give rise to frank symptoms upon the date of discharge causing a disability which entitles the sufferer to compensation in terms of pension.  It may create an additional vulnerability to further disability.  It is not difficult to see, however, that such vulnerability may well continue to exist without there always being symptoms.  Providing it is once accepted that the vulnerability itself to further outbreaks of symptoms and consequent disablement has been aggravated by an event in service, it is always potentially the case that a subsequent outbreak of symptoms, and the disability resulting therefrom, will give rise to a justified further claim.  One can see that at one time in such a case the assessment might be nil per cent; at another time, it may be very substantially more.  
12.	Other examples are easy to envisage.  On that basis, therefore, it has been accepted before me, in my view properly, that a Tribunal has the power in an appropriate case to reduce an assessment to nil per cent whilst recognising that the entitlement remains.  
13.	The Naval, Military and Air Forces Etc (Disablement and Death) Service Pensions Order 1983 ("the Order") deals with the principles upon which awards are to be made.  Article 3 provides: 
"Awards under this Order may be may be made where the disablement or death of a member of the armed forces is due to service before 6 April 2005."
14.	Article 8 provides under the heading, "General conditions: 
"Under this Part of the Order [that is a reference to Part (iii), headed, 'Awards in respect of disablement' of which Article 8 is the first Article] awards may be made in respect of the disablement of a member of the armed forces which is due to service [before 6 April 2005], and may be made provisionally or upon any other basis [provided that, in cases where a claim for such an award is required under Article 3A], a claim has been made in accordance with that article]."
Those last words are irrelevant to the present case.  
15.	Article 9 provides for determination of the degree of disablement.  It provides: 
"(1) The following provisions of this article shall apply for the purposes of assessment of the degree of the disablement of a member of the armed forces due to service [before the commencement of the 1914 World War or after 13 September 1921][but before 6 April 2005]. 
 (2) Subject to the following provisions of this article‑ 
 (a) the degree of the disablement due to service of a member of the armed forces shall be assessed by making a comparison between the condition of the member as so disabled and the condition of a normal healthy person of the same age and sex, without taking into account the earning capacity of the member in his disabled condition in his own or any other specific trade or occupation, and without taking into account the effect of any individual factors or extraneous circumstances; 
 (b) for the purposes of assessing the degree of disablement due to an injury which existed before or arose during service and has been and remains aggravated thereby‑
 (i) in assessing the degree of disablement existing at the date of the determination the service of the member, account shall be taken of the total disablement due to that injury and existing at that date; and 
 (ii) in assessing the degree of disablement existing at any date subsequent to the date of the determination of his service, any increase in the degree of disablement which has occurred since the said date of termination shall only be taken into account insofar as that increase is due to the aggravation by service of that injury; 
 (c) ... 
 (d) ... the degree of disablement shall be assessed on an interim basis unless the member's condition permits a final assessment of the extent, if any, of that disablement.
...  
 (4) Where a disablement is due to an injury specified in Part V of Schedule 1 or is a disablement so specified, and, in either case, has reached a settled condition, the degree of that disablement shall, in the absence of any special features, be certified for the purposes of this article at the percentage specified in that Part as appropriate to that injury or that disablement.  
... 
 (6) The degree of disablement certified under this article shall be the degree of disablement for the purpose of any award in respect thereof under this order."  
16.	Article 67 provides for the review of decisions, assessments and awards.  Its material parts read as follows: 
"(1) Subject to the provisions of paragraphs [(2A)], (3) and (4) and to the provisions of [paragraph (8)], any decision accepting or rejecting a claim for pension or any assessment of the degree of disablement of a member of the armed forces or any final decision that there is no disablement or that the disablement has come to an end may be reviewed by the Secretary of State at any time on any ground. 
 (2) ... any award under this Order may be reviewed by the Secretary of State at any time if the Secretary of State is satisfied that‑
 (a) the award was made in consequence of ignorance of, or a mistake as to, a material fact, or of a mistake as to the law; 
 (b) there has been any relevant change in circumstances since the award was made; 
 (c) the award was based on a decision or assessment to which paragraph (1) of this article applies, and that decision or assessment has been revised."  
17.	Thus it is plain for the purposes of the hearing before me that a Tribunal will approach the question of the assessment of an interim award or, for that matter, a final assessment, upon the footing that the applicant for such an award is entitled to be awarded a percentage disability in respect of a specified condition.  That award may be nil; it may be a percentage higher than that, up to maximum of 100 per cent.  But the starting point is an acceptance by the Tribunal concerned of disablements which have been accepted as such.  Those disablements fall under two headings: those which are attributable to service on one hand; and those which are aggravated by service on the other.  The latter refers in general terms to conditions which pre‑exist the service, but which are exacerbated or aggravated by an event or events in service so as to come within the scope of the provisions I have outlined.  
18.	The relevant history in the present application before me I have partly outlined already.  Critical amongst the events is that of 7 May 1997.  It appears to have been on that occasion that it was accepted by the Secretary of State, or by the Tribunal on appeal from the Secretary of State's decision, that the back injury in 1969 attributable to service, and lumbar spondylosis attributable to service should be added to psychoneurosis (recurrent depression) which it was decided in 1971 had been aggravated by the service.  Those dates are of some importance.  The date of 1971 is important because it necessarily implies that, before that date, there may have been a dispute between the applicant and the Secretary of State as to whether or not his condition from which he claimed to suffer had been caused by, or aggravated by, his service.  It is likely, therefore, that documents originating at the time would reflect one view or the other and might well be documents preparatory to the appeal upon which the claimant was in fact successful.  
19.	The date of 1997 is important because if on that date a panel accepted that a back injury and lumbar spondylosis from which the claimant alleged at the time he suffered was in fact attributable to service, they must have thought that there was some incident in service capable of causing those consequences and they must have come to a conclusion, essentially a medical conclusion, that the condition of the lower spine was not one which was constitutional in its entirety, but was caused by something which had happened during service.  
20.	The provisions of Article 67 of the Order are such that it would have been open to the Secretary of State to review the decision as to entitlement.  That would have given rise to a series of appeals.  It would not, except in unusual circumstances, have brought the matter before this court.  However, it again appears to be common ground before me that the only judicial remedy in a case of an error of law in an assessment decision by a Pensions Appeal Tribunal is judicial review, and indeed in his letter Mr Concannon, President of the Pensions Appeal Tribunal indicates that such has been the case since 1919.  Accordingly, it is this Tribunal which finds itself dealing with a decision which, upon the face of it, represents itself as a decision on assessment.  
21.	The reasons for the Tribunal's decision are set out in two pages of close typing.  Under paragraph 4, the decision says, "It assesses War Pensions Disablements accepted by the Secretary of State under the following medical labels ..." and it sets out the three matters to which I have referred.  Accordingly, the express basis upon which the decision proceeded was that those disablements were accepted.  In the words used by Mr Gearty they were "entitlements".   
22.	In coming to its come conclusion that, in respect of those disablements, there should be a nil assessment, the Tribunal at paragraph 9 examined the circumstances in which the claimant had suffered the injury which gave rise to the back injury of 1969 and the lumbar spondylosis.  It noted that there was limited support in the service medical records for an injury arising as the claimant himself had described it.  His case was that he had slipped and fallen whilst dealing with camouflage on a Bofors gun such that he hit his back upon the spinning wheel of it.  The approach of the Tribunal was to examine the credibility of the claimant in respect of that account.  The conclusion which it came to after its recitation of that account was expressed in these words: 
"Given the above the Tribunal finds the appellant's evidence to lack a reliability and does not accept his account of the serious injury he describes slipping off the platform of an anti‑craft gun, as above.  Accordingly, the only back injury established in 1969 is a relatively minor soft tissue injury from which the appellant recovered completely fairly quickly and which led to no residual or consequential problems."  
If one were to pause there, there would appear to be an inconsistency in approach between this Tribunal and that in 1997, which could not, as I have pointed out, have accepted that the back injury (if it was a relatively minor soft tissue injury from which the appellant covered completely and fairly quickly) was the relevant injury, for it then proceeded to award an assessment based upon the claimant's back condition in 1997, which it attributed to service back in the late 1960s.  It seems plain on any view that the Tribunal which accepted the entitlement had in mind an injury of greater severity than that which the later Tribunal thought justified.  I read on: 
"He was, however, awarded entitlement for 'lumbar spondylosis' in [1997] which was said to be consequential to the back injury set out in the appellant's account concerning the anti‑aircraft gun incident of 1969 ...  There is no evidence supporting such a diagnosis aetiologically linked to any service injury.  There is, though, evidence showing the existence of a degenerative condition of the lower spine, a condition recognised much later and particularly in the mid 1990s.  That was, however, some 25 years after service and after about 20 years work as a chef up to 1994, where the National Insurance Records show a claim for Sickness Benefit in 1994 for back pain. 
While the lumbar spondylosis condition has, as a matter of fact and law, been awarded by the Veterans' Agency, the basis of its award is at best dubious.  So far as assessment is concerned the question before the Tribunal is not only whether there is a relevant accepted disablement (which is clearly the case) but also more particularly whether any disablement relating to the accepted disablement is due to any factor of service."  
23.	I pause there.  Lumbar spondylosis was a condition which it had been accepted arose as a result of service.  That has to be the meaning of the decision at paragraph 4.  It recognises the division between entitlement on the one hand and assessment on the other, which is inherent in the scheme, as I have noted.  The reasoning of the Tribunal, however correct it may have been, is not reasoning which seeks to assess the effects of lumbar spondylosis and to see how disabled the claimant was by it, but rather to ask whether the lumbar spondylosis was or was not attributable to service.  That is a decision as to entitlement.  It is not a decision as to assessment.  Accordingly, in my view, the Tribunal here was taking an approach to the issue of assessment which it was not entitled to take.  
24.	The matter may be demonstrated in this way when one considers the conclusion that a nil award should be made.  Whereas theoretically it is open to a Tribunal to make a nil award in the presence of an accepted condition, it is virtually impossible to envisage circumstances in which that will happen where the condition is one of progressive deterioration without remission, as lumbar spondylosis is understood to be.  In argument the example was used of a man who, in a relevant accident in service, had lost some toes of his foot.  If he suffered a disability consequent upon the loss of his toes, it would be impossible as a matter of fact to envisage that the loss could ever be remedied, and very difficult, if not impossible, to see how with increasing age the condition of his foot ‑‑ his disablement ‑‑ would get any better.  It may be that there are extreme circumstances in which it might be imagined that in such a case there could be a lessening of relevant disability, but it is highly unlikely and would require cogent reasons to support it.  
25.	Here, therefore, one looks for cogent reasons to see how a state of lumbar spondylosis justifies a conclusion that there is no disability resulting from it.  The only basis upon which the Tribunal appears to have come to that conclusion is not that there was no disability arising from the lumbar spondylosis, but that the lumbar spondylosis did not arise from the service.  That encapsulates the problem with the reasoning.  The reasoning is appropriate to a decision as to entitlement, but not as to assessment.  
26.	I read on in the decision: 
"This is, moreover, a judgment to be made in relation to the relevant date, ie the Secretary of State's decision of 6.7.2004 determining the relevant assessment of disablement on the commencing date 26.2.2004.  Given the nature of the 1969 back injury, the time gap before there was any reliable evidence of a complaint of back pain (which is shown to be about 1994) and the evidence of a degenerative back problem unrelated to any factor of service [that must be a reference to lumbar spondylosis], we do not consider that it is established that back problems at the relevant date of decision by the Secretary of State on 6.7.2004 are shown to be due to service.  The appropriate assessment for a War Pension for this condition from the commencing date of 26.2.2004 is therefore [my emphasis] nil %." 
27.	As I have indicated, this is to approach the assessment not upon the basis of seeing whether the condition has improved or worsened, but to approach it on the basis of whether it is attributable or not, a decision which had already been taken which was supposed to underpin the decision on assessment, and which this particular Tribunal had no right to interfere with ‑‑ however right or wrong their reasoning may otherwise have been.
28.	The decision went on to consider the question of psychoneurosis.  As to that, it is said: 
"... we note that entitlement has been accepted on the basis of aggravated by service.  The evidence shows that from discharge in 1970 to about 1994 the appellant was not troubled by problems related to this condition.  Having seen a Consultant Psychiatrist in 1970, he did not see the Consultant again until 1994.  The condition is constitutional, hence the aggravated basis on which it was accepted by the Agency, and the award was therefore made on the basis of aggravation by service.  Given that the appellant worked as a chef, including as a head chef, from 1970 to 1994 we consider that the effects of any service aggravation had worn off by 1994.  Any problems concerning the condition that the appellant experienced then and subsequently are not shown to be due, therefore, to service aggravation.  While we do not dispute the continuing nature of problems including depression, in our view such problems are part of the natural development of the underlying constitutional condition and not due to any service aggravation of the condition.  Given these conditions the appropriate assessment of disablement due to service is therefore nil% from 26.2.2004."  
29.	It should be noted that previous Tribunals had before them information which drew a link between the back problem and psychoneurosis.  The link was visualised from two perspectives.  One was to suggest that the psychoneurosis might have been made worse by the existence of back pain.  If therefore one accepted back pain and lumbar spondylosis as due to service, and if that aggravated depression, then the depression would inevitably be, to the extent that it was aggravated, a consequence of service.  
30.	The second approach was not to regard the depression as aggravated by the back injury, but the perception of pain and disability from the back injury as influenced by the existence of the psychoneurosis.  The link is similar, but the consequence in that latter case would be that any disability perceived and accepted by the Tribunal would be attributed by them to the back pain or spondylosis and not to the psychoneurosis as such.  
31.	Next, I should observe that the reasoning here does not accept or envisage the possibility of the vulnerability to which I have referred.  It may be, particularly in conditions which may fluctuate over time, that service in the armed forces creates an additional vulnerability to that which pre‑existed the armed service to developing such later bouts of depression as occur.  Again, that is a medical conclusion.  I cannot say that it necessarily applied to this case.  But it does seem to me that it shows that the reasoning by which the Tribunal considered that the effects of any service aggravation had worn off by 1994 may very well be flawed.  What is stated as a consequence does not necessarily follow as one.  
32.	Mr Gearty complains that hereto the approach of the Appeal Tribunal is to conclude that there is no longer any consequence or any potential consequence of the psychoneurosis, that the Tribunal took the approach of regarding that disability as being no longer a potential cause of future problems.  A nil per cent assessment is particularly appropriate, in my view, in a case in which the assessment is made in the light of there being no current symptoms, but where there is an entitlement which may yet give rise to future problems.  Otherwise the appropriate course is for the Secretary of State to review the decision as to entitlement which he is, as I have pointed out, able to do by exercise of the powers which Article 67 confers.  
33.	It follows from what I have said that the decision is flawed because it approaches the hearing as being one in which the Panel was entitled to query the entitlement to, as opposed to assess the effects of, a disablement. 
Further considerations 
34.	In his letter to the court, the President of the Tribunal suggested that the decision which the court might make could be one of general importance.  It welcomed the court's guidance upon the matters raised by the appellant.  It is plain from correspondence which I have been shown, passing between the defendant and the interested party, that that is one basis upon which the claim has been fought.  I am reluctant to give general guidance in this case beyond that which necessarily flows from the way in which I have considered the issues presented to me.  I suspect that the guidance would have been more important had the power of the Tribunal to make a nil assessment been in issue, but as I have pointed out, it is not, and in my view, rightly not.  
35.	I would, however, venture the following: it is plainly open to a Tribunal to make its own assessment of the degree of disablement which the claimant before it exhibits.  That is its job.  In doing so, it seems to me plain that a Tribunal is entitled to come to its own view as to the credibility of that which the claimant is saying.  It could not be otherwise.  Tribunals at various stages in the papers before me have formed such an assessment and it has not always or regularly, if at all, been adverse to the claimant.  Whereas it was entirely within the powers, as it seems to me, of the Tribunal in August 2005 to take the dim view it did of the claimant's credibility, it should be noted just for the sake of record that a Tribunal of 4 December 2001 found the appellant to be an honest and straightforward witness, whose description of his symptoms was accepted.  But this, as I say, is a matter for the Tribunal and not for this court on review.  
36.	Secondly, it seems to me that if a Tribunal begins upon the basis, as it has to do, that an entitlement is accepted, then it cannot properly take into account in its assessment of disablement any query which it may have over the entitlement.  I recognise that may in some circumstances create a very real practical difficulty for a Tribunal.  It may frequently have only the barest of labels to give it a focus for its deliberations.  "Back injury 1969" as a label is not very helpful.  The whole issue of labelling was, though in a slightly different context, examined by this court in the case of Secretary of State for Defence v Shaun Francis Rusling [2003] EWHC 1359.  I would not wish to say anything more than that that decision stands in respect of the appropriateness of labelling and its determination.  It may well be that the Tribunals would wish to consider whether when an entitlement is accepted on appeal to a Tribunal, that in the reasons given the circumstances which that Tribunal accepts as giving rise to the entitlement are clearly spelt out.  If so, it would be of considerable potential help to subsequent Tribunals approaching uninformative and broadly general labels of symptoms.  
37.	I should note that, in the present case, despite the best efforts of counsel, I do not have a copy of the 7 May 1997 determination in the present case to say whether that was so or not, and I should record that it was missing from the papers which were apparently before the Tribunal of August 2005.  It may be that the fact that they were so missing contributed to the approach which the Tribunal, as I have indicated in my view, erroneously took.  
38.	Beyond those few and, I hope, not unhelpful general remarks I do not feel it appropriate in this case to go.  
Conclusion 
39.	The conclusion to which I have come therefore is that the decision made by the Pensions Appeal Tribunal of 16 August 2005 cannot stand and must be set aside.  The consequence is that there is an outstanding appeal by the claimant to a Pensions Appeal Tribunal in which he seeks to challenge the determination at 40 per cent of his disabilities in respect of the accepted conditions which give rise to his right to pension.  That will have to be determined by another Tribunal.  It is again in correspondence apparently accepted by the defendant that that Tribunal will have to be differently constituted.
40.	MR GEARTY:  Thank you, my Lord.  I wonder whether we can just confirm for the benefit of everybody in the court that there will be a written judgment in due course.  
41.	MR JUSTICE LANGSTAFF:  Because it has been given orally, of course it will be transcribed, and in the usual way, once the transcript has been sent to me for appropriate revision, it will be available.
42.	MR GEARTY:  Thank you, my Lord.  Another consequence which is of concern to our client is that the 40 per cent assessment will be reinstated with effect from the date it was withdrawn.  That would flow also from the judgment.
43.	MR JUSTICE LANGSTAFF:  It seems to me to follow, does it not, that if the decision is to be treated as null and void, then whatever was the situation which predated that decision must continue to apply.
44.	MR GEARTY:  I am grateful.
45.	MR JUSTICE LANGSTAFF:  Now, you can tell me whether that was time dated.
46.	MR GEARTY:  I think, as your judgment said, the withdrawal occurred on 26 February 2004 and the implications of the set aside is presumably that the payments from that day will need to be made.
47.	MR JUSTICE LANGSTAFF:  I had not given detailed consideration to whether that would be the case, so what I shall say on that is this: if you have further submissions as to the form of order, they can be made in writing.  I would suggest that what you do is you discuss that with the Secretary of State for Defence as the interested party, and it may well be ‑‑ it is entirely a matter for him ‑‑ whether Mr Concannon wants to say anything to you or whether the Pensions Appeal Tribunal wishes to say anything to you about the consequence.  But otherwise it seems to me that the effect of my ruling is that the decision cannot stand and whatever was the pre‑existing position applies.  Now, what that was I have not looked at the papers to spell out.
48.	MR GEARTY:  Thank you, my Lord, and we will deal with costs in the context of that draft order as well, is that right? 
49.	MR JUSTICE LANGSTAFF:  Do you want to make an application for costs now? 
50.	MR GEARTY:  We would make an application that the defendant pay the costs, to be assessed if not agreed, and that there be a detailed assessment of the claimant's publicly funded costs.
51.	MR JUSTICE LANGSTAFF:  You are publicly funded? 
52.	MR GEARTY:  Yes.
53.	MR JUSTICE LANGSTAFF:  Again, I think it right that the defendant and the interested party should have the right to make any submissions they want to on paper as to that in principle, otherwise I shall make an order.  So the order will be that, in the absence of submissions made to me within seven days in writing, the costs of the claimant will be paid by the defendant, to be taxed if not agreed as publicly funded costs.  If there are such representations, then you will have leave to respond to them within seven days, and I shall then determine that on the papers.
54.	MR GEARTY:  Thank you very much.
55.	MR JUSTICE LANGSTAFF:  But in the absence of there being any resistance from the Pensions Appeal Tribunal, that is what will apply.
56.	MR GEARTY:  Thank you, my Lord.