[2007] UKSSCSC CAF_656_2006 (30 January 2007) 

CAF/656/2006

DECISION OF THE PENSIONS APPEAL COMMISSIONER
  
1.  My decision  is that the decision of the tribunal is erroneous in point of law.  I set aside the decision and refer the case for rehearing before a differently constituted tribunal.

2.  This is an appeal from a decision of  a Pensions Appeals Tribunal made on 7 December 2005 upholding the Secretary of State’s refusal to award the appellant a clothing allowance under Article 17(1)(b) of the Naval, Military and Air Forces (Disablement and Death) Service Pensions Order 1983, which provides for a member of the armed forces who is in receipt of  a pension to be awarded an allowance in respect of wear and tear of clothing if the Secretary of State is satisfied “that as a result of the disablement which gives rise to an award under the Order there is exceptional wear and tear of the member’s clothing”.  I held an oral hearing of the appeal on 6 November 2006, at which the appellant was represented by her husband and the Secretary of State was represented by Mr Jonathan Auburn, of Counsel.

3.  The appellant was in receipt of war pension in respect of bilateral noise induced sensori-neural hearing loss 1980-1985, attributable to service, and fibromyalgia, also attributable to service, for the period from 20 April 1996.  Disablement in respect of the latter condition was originally assessed as 30%, but the assessment was increased to 70% on appeal on 21 July 2004 following a medical examination on 30 August 2003.  The appellant had first made a claim for clothing allowance on 6 December 2002 which had been rejected on 10 December 2002, but on 6 August 2004 she made a new claim, referring to the fact that the symptoms of fibromyalgia listed in the medical appendix produced in connection with the assessment appeal included irregular bowel action, dysmenorrhoea and urinary frequency.   The claimant stated that as a result of those problems she needed to replace her clothes more often than usual.  However, the claim for clothing allowance was rejected on 22 September 2004.

4.  Following the refusal of the claim, the appellant’s husband wrote a letter challenging the rejection of that and a number of other supplementary allowance claims.  In relation to clothing allowance, he asserted that the medical evidence which the assessment tribunal had accepted clearly indicated that double incontinence was a symptom of fibromyalgia.  It is relevant to mention that the claimant’s husband uses the title ‘Doctor’, although he told me that he possesses no medical qualifications.  It may well be that it was for that reason that the subsequent proceedings became dominated by the issue of double incontinence in the medical and technical sense of that term, that is, inability to control bowel or urinary function.

5.  On 1 October 2004 the appellant’s husband, acting as her representative, appealed on her behalf against the rejection of the claim for clothing allowance, specifically on the ground that double incontinence was part and parcel of the condition of fibromyalgia which had been accepted by the July 2004 assessment tribunal.  He also asserted that the claimant suffered damage to her clothing as a result of frequent falls, and because of damage to her clothing caused by the claimant falling asleep while smoking.  The medical advice obtained by the Veterans Agency accepted that the symptoms of fibromyalgia include urinary frequency and irregular bowel habit, but stated that fibromyalgia does not result in the involuntary loss of urine or faeces.  The Secretary of State’s stated reasons for rejection of the claim were based on that advice.

6.   The appellant’s husband submitted a large body of medical evidence to the tribunal, but the appellant herself did not attend and her husband gave evidence on her behalf.  Having considered the evidence, the tribunal dismissed the appeal for the following reasons:

“The Tribunal accepted the evidence given that the Appellant suffers from double incontinence.  The Tribunal considered the substantial amount of medical evidence provided in the Statement of Case and found no support for the contention made on behalf of the Appellant that double incontinence is a symptom of the accepted condition.  The principal reason put forward for the grant of a clothing allowance was the staining due to double incontinence and the Tribunal finds no evidence of causation by the accepted condition as required by Article 17.

Additional evidence was given of having to change clothes due to smoking and general instability. (The description of the damage to the clothing was pin-holes and minor snagging which did not require immediate replacement.)  The Tribunal found that the magnitude of the problem does not constitute exceptional wear within the meaning of the Article.”

In the reasons for refusing leave to appeal, the chairman added that the appellant’s husband had accepted at the hearing that none of the medical evidence supported his assertion that double incontinence was a symptom of fibromyalgia.

7.  The doctor who examined the appellant on 30 August 2003 reported that the claimant had “symptoms of irritable bowel syndrome which often accompany fibromyalgia.  It is possible that with her slow mobility she is occasionally incontinent of faeces.  She wears pads day and night because of urinary incontinence but she says she can cope with these.”  I gave leave to appeal on 16 March 2006 because I considered it arguable that the tribunal did not deal adequately with the evidence of loss of control of bowel and urinary function, but in a written submission dated 22 May 2006 the Secretary of State’s representative opposed the appeal on the ground that the only relevant issue was one of causation, namely, whether incontinence was part of the accepted condition.  At the oral hearing Mr Auburn maintained substantially the same position, submitting that on the basis of the medical evidence the tribunal dealt correctly with the only issue which it had to consider, namely, whether double incontinence was part and parcel of the of the accepted condition.  Mr Auburn further submitted that by virtue of  section 5B(a) of the Pensions Tribunals Act 1943, the tribunal did not have to consider any other issue.

8.  The appellant stated in her claim form that she suffered from irregular bowel action, dysmenorrhoea, urinary frequency and irritable bowel syndrome, and that, despite the use of incontinence pads, leakage caused staining of her inner and outer garments.  Although the medical examiner referred to the appellant being “incontinent of faeces”, he did so in the context of the appellant soiling her clothes because her fibromyalgia affected her ability to get to the lavatory in time.  The appellant did not state in the claim form that she suffered from double incontinence, and on that basis the relevant issue was whether the appellant’s fibromyalgia caused exceptional wear and tear of her clothing as a result of increased urgency of defecation or micturiton, combined with a reduced ability to respond sufficiently quickly to calls of nature.

9.  However, section 5B(a) of the Pensions Appeal Tribunals Act 1943, which was inserted by section 59 of the Child Support, Pensions and Social Security Act 2000, provides that in deciding any appeal a Pensions Appeal Tribunal “need not consider any issue that is not raised by the Appellant or the Minister in relation to the appeal”.  The appellant’s representative asserted in the reasons for appeal and in the protracted and belligerent correspondence which he has conducted on her behalf that the appellant suffered from double incontinence.  The tribunal dealt with the case on that basis, and the question therefore arises whether section 5B(a) of the 1943 Act excused the tribunal from considering whether regulation 17(1)(b) was satisfied on any other basis.

10.  Section 5B(a) of the 1943 Act is in similar but not identical terms to section 12(8)(a) of the Social Security Act 1998, which provides in relation to social security cases that an appeal tribunal “need not consider any issue not raised by the appeal.”  In CDLA/1000/2001 Mr Commissioner Jacobs held that the question of what issues were “raised by the appeal” was to be determined by reference to the substance of the appeal, rather than by just the wording of the appeal letter.  In a case where the claimant was in receipt of the mobility component of disability living allowance and sought care component on the basis of the disablement which caused his mobility difficulties, the tribunal could therefore consider the basis of the claimant’s entitlement to the mobility component.

11.  A refusal of a clothing allowance is a specified decision for the purposes of section 5A of the 1943 Act, which requires the Minister to notify the claimant of the making of such a decision, “specifying the ground on which it is made”. Section 5A(1)(b) then provides that “thereupon an appeal against the decision shall lie to the Tribunal on the issue whether the decision was rightly made on that ground.”  In my judgment, it is apparent from those words that it is the decision appealed against and the ground on which that decision was made which define the scope of the appeal, so that in order to decide whether an issue has been raised by the appellant or by the Minister “in relation to the appeal”, it is necessary to have regard not only to the specific contentions of the parties in the appeal itself, but also to the issues raised by the original claim.

12.  The terms of section 5A of the 1943 Act follow those of section 1, which confers a right of appeal in respect of a decision that an injury is neither attributable to nor aggravated by service.  The Minister must notify the claimant of the decision, specifying “that it is made on that ground”, and an appeal lies “on the issue whether the claim was rightly rejected on that ground”.  It seems to me to be clear that the “ground” of a decision under section 1 is a finding that the statutory grounds of entitlement are not satisfied, and  I would similarly hold in this particular statutory context that the ‘ground’ of a decision under section 5 is a finding that the statutory conditions of entitlement to an award are not satisfied, rather than the reasons for that conclusion.  In my view therefore, the principle in social security cases that the issues raised by an appeal are not limited to those set out in the notice of appeal applies equally to war pensions cases, although it may be necessary to give further consideration in a future case to any limitations on the scope of an appeal imposed by the words in sections 1 and 5 of the 1943 Act “..whether the decision was rightly made on that ground.”

13.  I am unable to trace the original notification of the decision rejecting the 2004 claim for clothing allowance, but in a letter to the appellant’s representative dated 26 April 2005 written on behalf of the Veterans Agency Chief Executive it was stated that the claim was rejected “on the grounds that (the appellant’s) accepted disablement of Fibromyaligia does not cause excessive wear and tear of her clothing”.  In my view, a decision in those terms adequately set out the grounds for rejecting the claim.  The article is concerned with whether as a result of  an accepted disablement there is wear and tear of the claimant’s clothing and, if so, whether that wear and tear is exceptional, and in my view it was the Secretary of State’s decision that the appellant did not satisfy that condition which formed the ground of his decision refusing an award of clothing allowance.  Article 17 does not require the Secretary of State to be satisfied that one condition is to, to use the time honoured formulation, ‘part and parcel’ of another condition, although it may be necessary to consider such an issue in a case where the causal connection between damage to clothing and an accepted condition is in dispute.  The tribunal should therefore have considered whether the appellant’s accepted disablement resulted in wear and tear of her clothing, irrespective of whether she had double incontinence, and if so whether that wear and tear was exceptional. The tribunal was not entitled to limit its consideration to the question of whether double incontinence was part and parcel of fibromyalgia and, for that reason, their decision was in my judgment erroneous in point of law.

14.  I therefore set aside the decision, although not without considerable sympathy for the tribunal, and, since I cannot determine the appellant’s entitlement to clothing allowance on the basis of the documentary evidence, I refer the case for rehearing before a differently constituted tribunal.  The new tribunal will have to re-hear the appeal in its entirety.

(signed on the original)	E A L Bano
Commissioner

30 January 2007