IN THE UPPER TRIBUNAL	Case No.  CAF/517/2015
ADMINISTRATIVE APPEALS CHAMBER

Before Upper Tribunal Judge Rowland

Decision:  The claimant’s appeal is allowed.  The decision of the First-tier Tribunal dated 13 January 2015 is set aside and the case is remitted to the First-tier Tribunal for its reconsideration in the light of further submissions from the parties.

REASONS FOR DECISION

1.	This is an appeal against a decision of the First-tier Tribunal dated 20 November 2014, striking out the claimant’s appeal against a decision of the Secretary of State dated 25 August 2009 whereby he reviewed and revised an earlier decision notified to the claimant on 5 February 2008 and he decided that the claimant was entitled to an award on Tariff 11 under the Armed Forces and Reserve Forces (Compensation Scheme) Order 2005 (SI 2005/439), as amended, in respect of an injury suffered on 4 October 2006.  (The injury was considered to be best described by item 12 of Table 8 – equivalent to item 16 of Table 8 in the 2011 Scheme).  The appeal was struck out on the ground that the First-tier Tribunal had no jurisdiction to hear it because it was received more than 12 months after the normal time for appealing had expired.  It had not been lodged until 12 April 2014.

2.	Given the terms of rule 21 of the Tribunal Procedure (First-tier Tribunal) (War Pensions and Armed Forces Compensation Chamber) Rules 2008 (SI 2008/2696), that decision was undoubtedly correct under purely domestic law (see R(AF) 1/09). Even before rule 21(7) was added, there was no power to extend the absolute time limit in rule 21(4) (see LS v London Borough of Lambeth (HB) [2010] UKUT 461 (AAC); [2011] AACR 27 at [130]).

3.	However, I gave permission to appeal with the following explanation –

“[I]t is arguable that where the effect of that absolute time-limit would be so unfair as to be a breach of Article 6 of the European Convention on Human Rights, the First-tier Tribunal has the power to extend the time for appealing as far as is necessary to avoid the breach (see Adesina v Nursing and Midwifery Council [2013] EWCA Civ 818; [2013] 1 W.L.R. 3156).   Potentially, either a mental illness or non-receipt of the letter of 25 August 2009 could give rise to a breach of Article 6 but there are significant difficulties in the claimant’s way.  His mental illness appears not to have been totally incapacitating and if it had been one might have expected that someone would have been appointed to manage his affairs in which case that person’s failure to act might be material.  Even if the claimant did not receive the letter of 25 August 2009, he knew of the increase in the award, which he had attributed to the Boyce Review (see doc 17).”

4.	I also commented that –

“There is no evidence before me that, within one year of the date that his service ended, the claimant wrote any letter to the Service Personnel and Veterans Agency that might be taken to have been an application for a review under article 55.  If there was such a letter, the parties will know of it.”

Neither party has suggested that there was any such letter.

5.	As the Secretary of State points out in his helpful submission drafted by Mr Adam Heppinstall of counsel, the Court of Appeal in Adesina was following the decision of the Supreme Court in Pomiechowski v Poland [2012] UKSC 20; [2012] 1 WLR 1604.  The Court of Appeal said –

“The real difficulty is where to draw the line. Mr Pascall, on behalf of the appellants, does not contend for a general discretion to extend time. Parliament is used to providing such discretions, often circumscribed by conditions (see, for example Employment Rights Act 1996, section 111(2), in relation to unfair dismissal). The omission to do so on this occasion was no doubt deliberate. If Article 6 and section 3 of the Human Rights Act require Article 29(10) of the Order to be read down, it must be to the minimum extent necessary to secure ECHR compliance. In my judgment, this requires adoption of the same approach as that of Lord Mance in Pomiechowski. A discretion must only arise "in exceptional circumstances" and where the appellant "personally has done all he can to bring [the appeal] timeously" (paragraph 39). I do not believe that the discretion would arise save in a very small number of cases. Courts are experienced in exercising discretion on a basis of exceptionality. See, for example, the strictness with which the discretion is approached in relation to the 42 day time limit and the discretion to extend in connection with appeals from Employment Tribunals to the Employment Appeal Tribunal: United Arab Emirates v Abdelghafar [1995] ICR 65; Jurkowska v HLMAD Ltd [2008] EWCA Civ 231.”

The Secretary of State also refers to Heron Brothers Ltd v Central Bedfordshire Council [2015] UKHC 604 (TCC); [2015] PTSR 1146, in which the approach taken in Pomiechowski and Adesina was applied and the strictness of the approach was emphasised.

6.	Nonetheless, in the light of those authorities, the Secretary of State concedes that the First-tier Tribunal erred in law in the present case because it did not consider whether, in the light of the claimant’s mental illness, it would be a breach of Article 6 of the European Convention on Human Rights not to extend the time for appealing and determine his appeal.  I accept that concession, which I consider has been rightly made in view of the information that was before the First-tier Tribunal.

7.	The Secretary of State also invites the Upper Tribunal to remit the case to the First-tier Tribunal and to direct the claimant to make a submission addressing the test laid down in Pomiechowski and Adesina and the Secretary of State to respond to it.  I am not entirely sure why he considers that the case should be remitted rather than that the Upper Tribunal should re-make the decision under section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007 but I am content to accept the suggestion, on which the claimant has not commented.  However in those circumstances, I consider it preferable, and probably less confusing for the claimant, to leave the First-tier Tribunal to issue such directions as may be necessary.

8.	Finally, when giving permission to appeal, I said –

“I would also welcome the Secretary of State’s observations as to what course of action the claimant can take if his current condition would have warranted an award above tariff level 11 but his appeal is too late.  Article 56(6) of the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011 (SI 2011/517) provides that the Secretary of State “is to review an injury benefit decision under this article on one occasion only”.  That raises the question whether, when an award of injury benefit is revised under article 56(2)(b), a new “injury benefit decision” is made.  If a new “injury benefit decision” is made, then presumably article 56(6) does not prevent the claimant from seeking another review now.  If a new “injury benefit decision” is not made, the 10 year threshold for applying for a review under article 57 presumably runs from the date of the initial award so that the claimant in this case could apply for a review on or after 5 February 2018.  Which approach does the Secretary of State consider to be right?”

9.	The Secretary of State has indicated that his view is that the claimant would need to wait until 26 August 2019 before applying for a review under article 57, because the definition of “injury benefit decision” in article 55(10) must be read in the light of article 54(3)(c), so that, in his view, it “includes a decision revised on exceptional review under article 56” and the time for applying for a final review runs from the date of the decision made on review.  He thus does not accept either of the alternatives I suggested.  

10.	However, he correctly points out that this issue is not before me for determination and I will therefore merely observe that it seems to me that the language of articles 54(3), 55(10) and 56(6) currently leaves room for argument as to the correct approach.  The Secretary of State may wish to consider amending the legislation so as to make the position clearer.  He may anyway wish to consider whether the legislation in respect of reviews achieves the best balance between the desirability of finality and the desirability of achieving at as early a date as practicable what is objectively the “right” decision in cases where there have been complications, but that is a matter for him as legislator rather than for this or any other tribunal.  Meanwhile, if the claimant’s appeal to the First-tier Tribunal is held to be irredeemably out of time and he wishes to apply for a review, his advisors will no doubt advise him as to when, in their view, he may do so.  

Mark Rowland
23 November 2015