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[2008] UKUT 1 (AAC) (06 November 2008)

 


CAF/1913/2008

[2008] UKUT 1 (AAC)

DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

Decision and Hearing

1. I grant leave to appeal. In accordance with the provisions of regulation 11(3) of the Social Security Commissioners (Procedure) Regulations 1999 (which was in force at the time of the hearing) I treat this application as an appeal. The representative of the late claimant and the Secretary of State have each agreed to this course of action. However, this appeal by the claimant does not succeed. I confirm the decision of the Pensions Appeal Tribunal sitting in London on 6^th March 2008 (reference ENT/254/2007) to the effect that the tribunal had no jurisdiction to consider the matter.
2. As explained further below, there appears to be an outstanding appeal in respect of deep vein thrombosis (DVT), claimed as a condition on 17^th June 2002 and notified as rejected by the Secretary of State on 20^th March 2003, with an appeal lodged on 25^th May 2003. I Direct that this matter be referred to the Acting President of the War Pensions and Armed Forces Compensation Chamber of the First-tier Tribunal for further Directions.
3. On 22^nd October 2008 (as a Social Security Commissioner) I held an oral hearing of the application in this case. The late claimant was represented by Mr Ellis, his nephew and executor. The Secretary of State was represented by Rob Williams of counsel, instructed by the Treasury Solicitor.

Background and Procedure

4. The late claimant was born on 16^th February 1916 and on 16^th May 1940 he enlisted in the King's Royal Rifle Corps. His entry medical had shown nothing of particular relevance to the current appeal. While serving in Libya in 1942 he received a shrapnel wound to his right leg. The report of his release medical, which took place on 21^st March 1946, referred to a 1" to 2" wound on his right buttock and stated that "a piece of shrapnel can be felt superficially under the scar". There was a slight effect on function with the degree of disablement assessed at less than 20% and he was found to be fit for further service in medial category A1. On 15^th July 1946 he was demobilised. He subsequently worked as a chauffer and as a supplier of medical goods.
5. From about 1983 the late claimant complained of vertigo, nausea and vomiting, and hearing loss. He was eventually diagnosed as having Meniere's disease, the effects of which appeared to improve with treatment.
6. In 1989 he was seen by a hospital senior consultant orthopaedic surgeon after he complained about the effects of an old injury to his right ankle The consultant found "considerable tilting of the talus in the ankle mortice" and was "not surprised" that the claimant was getting discomfort and pain at the tip of the lateral malleolus.
7. On 27^th January 1992 the late claimant made a claim for disablement pension in respect of his injuries. When interviewed in connection with this claim he stated that he thought that he had sprained his ankle when jumping off a truck in North Africa in 1942, and that he had had to stop driving in about the middle of 1991 because he could not control the pedals.
8. On 1^st March 1993 a decision was made on behalf of the Secretary of State accepting the shrapnel wound as being attributable to service, but finding that the trouble with the right ankle was neither attributable to nor aggravated by service. For some reason, this was not notified to the claimant until 18^th February 1994. The disablement from the accepted condition was assessed at 6% to 14% and a lump sum payment (or gratuity) of £3241 was awarded and paid.
9. In a letter dated 28^th February 1994 but marked as received on 25^th April 1994 the late claimant responded to this notification expressing his disappointment, repeating some of his factual arguments and referring to his Meniere's disease. This letter raised no issue of law and did not indicate that he wished to appeal. On 15^th September 1994 he was notified that the Secretary of State had decided that the Meniere's disease was neither attributable to nor aggravated by service.
10. Matters seem to have rested there for nearly five years until, on 20^th July 1999, a letter was received from the late claimant requesting a review of the decision about the Meniere's disease. The Secretary of State maintains that the claimant was informed that the decision on this was unchanged and that on 27^th September 1999 appeal forms were sent to him. On 20^th May 2002 a letter was received from the late claimant querying the Secretary of State's decisions as to the rejected conditions and also asking to make a further claim in respect of deep vein thrombosis (DVT), in respect of which he completed a claim form on 17^th June 2002. On 20^th March 2003 he was notified that the Secretary of State had decided that the DVT was neither attributable to nor aggravated by service.
11. On 25^th May 2003, after further correspondence, the late claimant confirmed that he wished to appeal against the decisions in relation to DVT, Meniere's disease, and his right ankle (in respect of both injury and arthritis), and also against the assessment in respect of the shrapnel wound. I observe that in respect of the DVT this appeal was made very shortly after the notification of the decision. At this point the parties seem to have stopped referring to the DVT issue and, for example, on the form signed by the late claimant on 13^th June 2003, on which he nominated a representative, he referred to other conditions but not to the DVT. Without deciding the issue (because it is not before me) it seems to me that it is certainly arguable that there is an outstanding appeal against the DVT decision, which is why I have made the Direction in paragraph 2 above.
12. However, in respect of the other matters the appeal was, on the face of it, out of time. On 3^rd September 2003, the tribunal considered whether to admit the appeal and allow it to be brought. The Decision Notice, signed by the chairman, refers to a Secretary of State decision notified on 1^st March 1993 with an appeal received on 10^th June 2003. As is so often the case with appeals that I see in this jurisdiction, it is difficult to reconcile the dates, but neither party has suggested that this tribunal decision is not part of the appeal before me. The tribunal decision recited the following paragraph (pre-printed on the Notice):

"4. The application relates to an entitlement decision made before 9 April 2001. The law allows a claimant until 8 April 2002 to lodge an appeal against the decision. The law also enables time to be extended, so that a late appeal can be brought, if a reasonable excuse for the period of delay is shown."

13. The tribunal went on to find that the circumstances did establish a reasonable excuse for the whole period of the delay, and decided to allow the appeal to be brought. Perhaps this demonstrates the dangers of using pre-printed forms which do not indicate the whole of the relevant rule or prompt all of the necessary findings.
14. Sadly, before his substantive appeal was heard, the claimant died on 11^th May 2007 at the age of 91.
15. The appeal was finally listed on 6^th March 2008. Mr Ellis attended the hearing but the tribunal decided that it had no jurisdiction to consider the appeal because it was out of time. Mr Ellis subsequently complained that the Secretary of State's representative had produced and referred to documents that he had not previously seen. In a reply to Mr Ellis dated 26^th March 2008 the President of the tribunal indicated that he shared Mr Ellis's concern and suggested that he may wish to consider making an application for leave to appeal to the Commissioner. Given the basis of the tribunal's decision, this might not have been the wisest advice. When he did apply for leave to appeal, this was refused by the chairman on 28^th April 2008, who observed that in light of the basis of the tribunal's decision, Mr Ellis could not possibly have been prejudiced or reasonably have believed that he was prejudiced by the fact that the tribunal proceeded to a decision without adjourning. I am inclined to agree with that comment.
16. Mr Ellis renewed his application to the Commissioner (who, at that stage, had jurisdiction over such appeals) and on 6^th August 2008 I directed that there be an oral hearing of the application. In the event, I grant leave so that Mr Ellis can have no complaint that the matter has not proceeded to a full hearing.

The Relevant Provisions on Time Limits

17. By virtue of section 1 of the Pensions Appeal Tribunals Act 1943 there is a right of appeal to the tribunal against a decision that a condition was not attributable to or aggravated by relevant service.
18. Section 8 of the Act provided for time limits on appeals if the Minister made certain Orders. For many years no such Order was made and in effect there was no time limit. However, section 8 was amended as from 9^th April 2001 to the effect that where the relevant Secretary of State's decision had been made before that date (as is the case with all the relevant decisions in the appeal before me) an appeal could only be brought if notice of appeal were given not later than twelve months after that date (that is, by 9^th April 2002).
19. Section 8(5) states as follows:

8(5) The Minister may by regulations provide that the Tribunal may, in circumstances prescribed in the regulations, allow an appeal to be brought not later than twelve months after the end of any period limited by this section.

20. The Minister did make such regulations and the effective provisions are in regulations 3 and 4 of the Pensions Appeal Tribunal (Late Appeal) Regulations 2001. These extend the time limit for bringing an appeal in respect of a decision made before 9^th April 2001 for up to twelve months (that is, to 9^th April 2003) in prescribed circumstances. Prescribed circumstances include serious illness of the claimant and exceptional circumstances making it impracticable for the claimant to bring the appeal or to arrange for it to be brought.
21. I am prepared to assume for the purposes of my decision that the appeal(s) came within the prescribed circumstances list but that does not help. Except in the case of the DVT (see above) the relevant decisions were made by the Secretary of State before 9^th April 2001 but the earliest date on which one could say that the appeals had been notified was 25^th May 2003 (and the Secretary of State argues that it was in fact 13^th June 2003).

The Grounds of Appeal

22. Although he does not put it in quite these terms, Mr Ellis complains of the unfairness of the tribunal of 6^th March 2008 refusing to accept jurisdiction when the tribunal of 3^rd September 2003 had admitted the appeal.
23. He also refers to the many errors made by the Veterans Agency and the Secretary of State's officials in dealing with these claims over the years, missing documents and the unreliability of their records, and argues that it is impossible to be sure that any document that they say was sent to or received by the late claimant was in fact sent or received. (However, he does not assert that any particular notification that the Secretary of State states was actually sent was sent was not in fact received).
24. Be that as it may, it is clear (and not disputed by Mr Ellis) that the claimant received the cheque to which I have referred above, and it would be unreasonable to assume that he did not receive the correspondence which the Secretary of State says was accompanied by the cheque. It is also clear that on those occasions when the late claimant queried decisions, by telephone or in writing, he must first have been made aware of those decisions. Notwithstanding the various procedural, administrative and other errors, I am satisfied that the late claimant received notification of the relevant decisions and his appeal rights in time to exercise those appeal rights.

The Jurisdiction Question

25. In CAF/1133/2007, a case with very similar fats to those of the case before me, Mr Commissioner Jacobs reviewed a number of cases before the Commissioners and the higher courts in which a similar issue had been raised as to whether a decision wrongly made without jurisdiction at an earlier stage can confer jurisdiction on the court deciding the issue at a later stage. I agree with his conclusion, at least in relation to absolute time limits for appeals to the Pensions Appeal Tribunal, that it cannot do so. To decide otherwise in this case would be to subvert the very clearly expressed intention of parliament.
26. I am fortified in this view by the decision of Stanley Burnton J in the Administrative Court of the Queen's Bench Division of the High Court in a group of cases relating to the application of time limits in the Pensions Appeal Tribunal (PAT) in the case of R (on the application of the Secretary of State for Defence) v PAT (Lockyer-Evans and others, interested parties) [2007] EWHC 1177 (Admin); [2008] All ER 287. He decided quite unambiguously that the tribunal had no power to hear an appeal brought after the expiry of the final time limit (in the present case, 9^th April 2003).
27. For the above reasons this appeal by the late claimant does not succeed.

H. Levenson

Judge of the Upper Tribunal

6^th November 2008