[2007] UKSSCSC CAF_1569_2007 (03 October 2007)

	DECISION OF THE PENSIONS APPEAL COMMISSIONER

1.	The claimant's appeal to the Commissioner is allowed. The decision of the London pensions appeal tribunal dated 31 January 2007 is erroneous in point of law, for the reasons given below, and I set it aside. The case is referred to a differently constituted pensions appeal tribunal for determination in accordance with the directions given in paragraphs 14 to 16 below (Pensions Appeal Tribunals Act 1943, as amended, section 6A(4)(b)). The claimant and his wife are referred to paragraph 15 in particular.

2.	In this case, the representative of the Secretary of State for Defence supported the claimant's appeal to the Commissioner, to the extent of agreeing that the pensions appeal tribunal (PAT) of 31 January 2007 had erred in law and suggesting that the case should be sent back to a new PAT for rehearing. In reply, the claimant did not specifically object to that suggestion, but repeated some of his arguments for an eventual decision in his favour. In the light of the Secretary of State's support, I can give a relatively short decision, without going into much of the detail.

3.	The PAT was concerned with the claimant's appeal against the Secretary of State's decision dated 7 October 2005, that the condition malaria (1953 - 1954) was not attributable to or aggravated by service. The letter of the same date notifying that decision made it clear that the ground was that the claimant had not shown that had suffered then or now from the condition. The claimant had served in the Royal Artillery from 5 June 1952 to 20 June 1954, during which time he was stationed in Hong Kong and Malaya for about 14 months. He made the claim in relation to malaria on a form signed on 11 May 2005. He said on that form that he developed malaria on the troopship Empire Clyde en route from Singapore to Hong Kong in December 1953, when anti-malaria tablets were not available on board. He said that he had suffered from malaria every year since. The service medical records obtained by the Veterans Agency were restricted to his entry and release medicals and a treatment card for ringworm from September 1953. The personal history of diseases, wounds or injuries in the release medical report mentioned only the ringworm. GP records from January 1962 did not mention malaria or any treatments for it.

4.	The claimant wrote in a letter received on 10 November 2005 that a few days after arriving in Hong Kong in December 1953 he suffered from malaria and was treated in a military hospital. He had had treatment from his doctors every year since. The Agency was unable to trace any records of treatment in Hong Kong.

5.	The claimant lodged an appeal form signed on 12 January 2006, written out for him by his wife. It was said that he had been very ill in Hong Kong and in the military hospital for 10 days. It was said that since then he had had to be off work for at least two weeks each year. His wife said that she nursed him during the bouts of malaria. His GP could only prescribe quinine. She asked for the army records to be re-checked. The opinion of medical services dated 3 February 2006, prepared for the statement of case on the appeal, maintained that the claimant had not shown on the balance of probabilities that had ever suffered from malaria. It referred to the absence of any record of treatment while in service or by his GP, to the absence of any mention of malaria at the release medical, and to the argument that even if anti-malarial drugs were not available on the troopship it was not inevitable that the claimant would develop malaria. In an answer dated 8 October 2006 the claimant and his wife reasserted that he had suffered from malaria and described the symptoms. They named as witnesses the GP who had first treated the claimant and someone who had served with the claimant (giving a name, address and telephone number). The Secretary of State merely noted by use of a rubber stamp that he did not wish to offer any comment.

7.	The claimant and his wife did not attend the hearing on 31 January 2007, as they lived in Spain. The PAT administration was not able to arrange a hearing during a period when the claimant's wife was to be in the country, as all available sessions in that period were already fully booked. The PAT of 31 January 2007 dismissed the claimant's appeal, saying that it could not be satisfied that the claimant had suffered from the claimed condition. It referred in particular to the release medical and the later medical records. It made no reference to the witness named by the claimant.

8.	The claimant now appeals to the Commissioner with my leave. When granting leave, I said this:

	"It is arguable that there was a breach of the principles of natural justice, in that the claimant and his wife (then representing him) were deprived of a fair opportunity of making their case. In the answer dated 8 October 2006 and in the accompanying letter received by the Veterans Agency on 12 October 2006 the claimant's wife gave the name and address of a person who had served with her husband as a witness to his having suffered malaria during service. The Secretary of State did not offer any comment. The documents appear to have been sent by the Veterans Agency to the PAT office as a supplementary statement, but there appears to have been no specific reply from the PAT office to the claimant's wife's suggestion. It is common for claimants and their representatives to assume that, if the Veterans Agency is not going to contact a person put forward as a witness (as I think was clear here), that the PAT will do so. In the circumstances of the present case it is arguable that the claimant and his representative were entitled to be informed in clear terms that neither organisation was going to contact the person named and that it was their responsibility to obtain and send in a statement from the person or arrange for him to attend the hearing of the appeal. In the absence of evidence of such information (I do not have evidence of what might have been contained in general leaflets about the appeal process that had been sent to the claimant), it is arguable that there was a breach of the principles of natural justice in the PAT's making a decision without the claimant and his representative having had that information. I refer to Social Security Commissioner's decision R(M) 2/80, especially paragraphs 5 to 8."

9.	As noted above, the representative of the Secretary of State in the submission dated 24 July 2007 supported the appeal to the Commissioner, effectively on the ground mentioned in my directions. It was said that in the interests of natural justice the claimant should have been allowed to produce a witness statement to the PAT. The claimant did not address the natural justice point in his reply.

10.	I now conclude that the PAT did err in law for the reason given in my directions, which are I think slightly more focused than the approach in the Secretary of State's submission of 24 July 2007.

11.	It may be helpful for future cases before PATs for me to set out what was said in R(M) 2/80, which in my judgment is a sound statement of general principle. That was a case of a claimant's appeal against a decision that her daughter of seven was not entitled to mobility allowance, as it then was. The consultant in paediatric neurology who had care of the daughter wrote to the Mobility Allowance Unit asking them to be in touch with him about the complex medical situation. The Unit did not contact him or tell the claimant that it was not doing so. The schedule of evidence provided for the medical appeal tribunal (MAT) included the consultant's letter. The MAT reached a decision without seeking evidence from the consultant. Paragraphs 7 and 8 of the Commissioner's decision were as follows:

	"7. In Decision R(I) 1/65, paragraph 15, claimants appealing to medical appeal tribunals were advised to examine the schedule of evidence relative to such appeals showing the evidence to be submitted to the tribunal and it was emphasised that it was for the claimant to put forward any further evidence he wished to have considered and that it would not suffice for a claimant merely to draw attention to a possible source of additional evidence. In a recent unreported decision of the Chief Commissioner (CA 3/78), however, a decision of the Attendance Allowance Board was set aside as erroneous in law on the ground of breach of natural justice where a claimant who had suggested that the evidence of a particular doctor be obtained was not informed that it was not intended to follow up his suggestion and that the responsibility for obtaining such evidence therefore remained with him. The Chief Commissioner said (in paragraph 9)--
		`No doubt the question whether action should have been taken on receipt of the claimant's letter concerning (the doctor's) evidence was for the authority - the Board, or their delegate (who accepted it as a request for a review) to decide. It may be the rule that it was for the claimant to secure the evidence upon which he proposed to rely, but having written as he had he was at least entitled to an acknowledgement, and a reply indicating what course it was proposed to take, so that he could act accordingly. I would not dissent from the proposition that the Board or its delegate was entitled to take no action to secure what may have been thought irrelevant to what the review would entail, but in my view the claimant was entitled to be told whether such action would be taken, or be told that the responsibility was his to secure the evidence upon which he wished to rely. He was told nothing.'

	8. No doubt it would have been possible for the claimant in the present case to ascertain by reference to the schedule of evidence that no further evidence had been obtained from the consultant, but that could equally well have been said of the claimant in CA 3/78 who received a list of the documents considered by the Board along with their provisional determination on the application for review. I note that in that case it was thought that the claimant might have misapprehended the situation. Equally in the present case the claimant may have been misled by the acknowledgement which she did receive of the receipt of the Mobility Allowance Unit of the consultant's letter. In any event, however, the claimant in the present case is in my opinion in a stronger position than the claimant in CA 3/78 since she was aware that the consultant was, on his own initiative, in direct contact with the Unit. I have no doubt that she was entitled to be informed in clear terms whether the consultant's suggestion had been followed up, and if it had not, that the responsibility for any further action would lie with her. She was not so informed and while I do not suggest that the medical appeal tribunal were not entitled to determine the appeal on the evidence before them, this prior defect in communication with the claimant (of which the tribunal may have been unaware) was in my opinion a defect in the proceedings leading to the decision which amounted to a breach of natural justice. Upon that ground I consider that the decision of the tribunal is erroneous in law and should be set aside."

12.	Translating those principles to the context of the requirement in the present case for the claimant to show on the balance of probabilities that he suffered from the condition on which his claim was based, the claimant was able to ascertain from the statement of case and the supplementary documents that the Veterans Agency had not and was not proposing to take up his suggestion of obtaining evidence from his fellow-serviceman. However, as he had made the request for information to obtained from that specific person, he was entitled at least to be told that it was his responsibility to secure and provide the evidence he wished to be before the PAT. A PAT has no power to obtain written evidence directly, rather than through the parties, except in the case of an expert opinion on a difficult medical or technical question under rule 15 of the Pensions Appeal Tribunals (England and Wales) Rules 1980 (the PAT Rules). In the absence of any evidence that the claimant was informed of that responsibility, either in relation to the specific evidence or in general terms that were clear enough, there was a breach of natural justice in the PAT of 31 January 2007 proceeding to make a decision without having given the claimant a further opportunity to produce evidence from his fellow-serviceman.

13.	For that reason, I set aside the PAT's decision as erroneous in point of law. The claimant must be given a fair opportunity to produce the evidence he wishes. That will best be done by reference of his appeal against the decision of 7 October 2005 to a new PAT for rehearing.

Directions to the new PAT
14.	The claimant's appeal against the Secretary of State's decision is referred to a differently constituted PAT for determination in accordance with the following directions. There must be a complete rehearing on the evidence produced and submissions made to the new PAT, which will not be bound by any findings made or conclusions expressed by the PAT of 31 January 2007.

15.	The claimant and his wife now know that evidence from his fellow-serviceman will not be obtained by the Service Personnel and Veterans Agency or by the PAT. If they wish that evidence to be considered their best course is follow the suggestion in paragraph 7 of the Secretary of State's submission of 24 July 2007 and either get the witness to send a statement direct to the Agency or obtain a statement from him and send it to the Agency. They might also wish to consider whether, even if they are not able to come from Spain to attend the rehearing, the witness could attend a hearing at a venue within a reasonable travelling distance of his home. That is something that would have to be pursued with the PAT office, who would also have information about whether travel and subsistence expenses would be available for such attendance. If he were not to attend in the capacity of a representative on behalf of the claimant, but simply as a witness, it appears that a certificate would have to be obtained from the President of PATs or from the chairman of the particular PAT that in exceptional circumstances the attendance of the witness is necessary (PAT Rules, rule 27(3)(e), (4) and (5)).

16.	The evaluation of all the evidence will be entirely a matter for the judgment of the members of the new PAT. The claimant must not assume that, just because he has been successful in this appeal to the Commissioner on a point of law, he will be successful on the merits of his appeal before the new PAT. My decision is entirely neutral on that. The decision on the facts in this case is still open.

	(Signed)        J Mesher    
	Commissioner

	Date:  3 October 2007