[2007] NISSCSC A9_07_08(AF) (05 July 2007) 

Application Nos: A1/07-08(AF), A2/07-08 (AF), A3/07-08(AF)

 

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

NAVAL, MILITARY AND AIR FORCES ETC (DISABLEMENT AND DEATH) SERVICES PENSIONS ORDER 1983

ARMED FORCES

Application by the above-named claimant for
leave to appeal to a Pensions Appeal Commissioner
on a question of law from a tribunal’s decision
dated 25 January 2007

DETERMINATION OF THE PENSIONS APPEAL COMMISSIONER

These are applications to a Commissioner by the applicant on behalf of the claimant for leave to appeal on a question of law from the three decisions (under tribunal case reference numbers C1047, C1055 and C1059) each of the Appeal Tribunal dated 25 January 2007 (the tribunal).  

An oral hearing of these applications has been requested.  No reasons have been advanced for that request.

The request is refused, as I am satisfied, after considering all the circumstances of the case, including the lack of reasons for such a request, that the applications can properly be determined without a hearing.  There is copious documentation in the papers providing the factual background and the grounds of the applications raise no significant arguable error in law, as distinct from a disagreement with the factual conclusions of the tribunal, which justifies oral debate at the level of the Commissioner.  The applicant has already had a lengthy oral hearing, at which he was present and represented, when the factual issues were extensively explored; this followed, moreover, an earlier hearing on 18 January 2006 which resulted in a decision notice focusing the salient points, and requiring submissions from both parties with respect to them.  There was thus ample time also for relevant evidence to be garnered.

Having read the case papers, including all the submissions referable to these applications, it does not appear that there is any sufficiently arguable ground for holding that the decisions of the tribunal are or may be erroneous in point of law.  Leave to appeal is accordingly refused with respect to all three applications.
The tribunal provided one statement of reasons with respect to the three appeals to it, which was sensible because there is a common and determinative issue of backdating that applies in the same way to all three cases.  The applicant is correct that there are three separate claims, each with its own individual substantive criteria for entitlement, but the backdating rules are identical.  It is, therefore, likewise appropriate that this single determination from a Commissioner applies to all three applications.

REASONS

Evaluation of the evidence and determination of the merits is for the tribunal.  The Commissioner’s jurisdiction is limited to errors of law and none have been demonstrated by the applicant nor discerned from the documents.  Unless there is an irrational or improper approach or it is inadequately explained, a Commissioner cannot interfere.

Matters of judgment on the factual application of a statutory test are exclusively for the tribunal unless its exercise of judgment is such that no reasonable tribunal could make on the basis of the facts found and having regard to the evidence.  That has in no way been demonstrated in the present cases and therefore its conclusion cannot be disturbed.

The onus lies on the applicant to make out his grounds as arguable and he has failed to do so.  It is asserted that the tribunal’s findings in fact and reasons are inadequate, that evidence was either not considered or that conclusions were drawn against the weight of the evidence, that previous judicial rulings were ignored; but in no instance is specification given and it is in no way obvious from the voluminous papers where the tribunal erred. The tribunal’s reasoning is crystal clear as to the basis of its approach to the issues raised and there is no indication whatsoever that any relevant point was not addressed or was considered under the wrong legal tests or that there was any mistake of law (in particular, in interpretation, application or factfinding).

It is not disputed that the appellant suffered a cerebrovascular accident (CVA) in 1994.  He claimed constant attendance allowance (CAA) by a form dated 23 November 2001 (but accepted as from 15 November 2001), which was first awarded for the full day rate, but later increased to the intermediate rate following a decision of a Pensions Appeals Tribunal on 28 May 2004; he claimed war pensions mobility supplement (WPMS) on 20 June 2004, and for the further conditions of CVA and alcohol abuse disorder on 24 June 2004.  All these claims were ultimately accepted by the Secretary of State but each with a commencement date limited to 15 November 2001 (although for CAA at the intermediate not merely full day rate), as the Secretary of State accepted that it should have been picked up from the CAA claim form that the CVA was responsible for any attendance needs and could be linked to what had already been accepted as attributable to service.  It is the extent of the backdating which was the issue in all three claims and therefore taken to the tribunal.  At minimum, the contention before the tribunal was that there should be further backdating of all three claims to the date of claiming attendance allowance (AA), based on the needs arising from the CVA, which AA claim was in June 1996.  

The tribunal dealt exhaustively with the potentially applicable legal provisions.  The starting point is that one cannot be entitled to a pension or allowance prior to the date of a claim for it, subject to limited exceptions for backdating such a claim set out in Schedule 3 to the Service Pensions Order 1983.  (There is now a replacement consolidating 2006 Order, but the change makes no difference to the substance of the relevant provisions considered by the tribunal.)  The appellant, through his appointee, did not satisfy the tribunal on certain crucial factual issues, in particular what was the dominant cause of the claimant’s wife’s delay in claiming, and whether or not she received any advice from the Veterans Agency with respect to the relevant claims.  The burden of proof on all matters lay on the appellant.

The weight to be given to any evidence is completely a matter for the tribunal and is a matter of fact.  It can be disturbed by a Commissioner as an error of law only if the conclusion as to weight is one which no reasonable tribunal could have reached.  Having carefully considered all the evidence in the papers, I am not of the view that the way the tribunal assessed competing evidence is such as no reasonable tribunal could have so done, and it fully explained its process of reasoning.  

The tribunal has provided adequate facts to justify its decisions and fully explained its reasoning for the benefit of the applicant, with a clear indication in particular of why it took the view of the evidence it did.  There is no indication that the wrong statutory tests were applied and, from the evidence, the decisions reached were not ones which no tribunal, acting judicially and properly instructing itself on the law, could have reached.  There was a hearing which the applicant attended with his representative and his wife and where all the available evidence was fully considered and addressed.  The applicant now seeks to adduce new information, but the tribunal does not err by failing to take account of evidence not before it.  

(Signed):  L T Parker

NI DEPUTY COMMISSIONER
(GB COMMISSIONER)

5 July 2007