[2008] UKUT 1 (AAC) (19 March 2009)<BR>War pensions and armed forces compensation<BR>All

IN THE UPPER TRIBUNAL	Appeal No.  CAF/2752/2008
ADMINISTRATIVE APPEALS CHAMBER

Before E A L Bano

Decision:  My decision is that no valid permission has been given for this appeal.  I decline to waive the requirements of rule 21(2) of the Rules of Procedure (Upper Tribunal) Rules 2008 (SI 2008 No 2698), and because I consider that I therefore have no further jurisdiction in this case, I strike out these proceedings under rules 7(2)(c) and 8(2)(a) of those rules.

REASONS FOR DECISION

1.  The claimant, who now lives in the USA, served as a nurse in the Royal Air Force from February 1969 to January 1970.  Unfortunately she has come to suffer from a number of serious disabilities, which she attributes to lack of proper training and to a fall during icy weather while in service.

2.   On 7 June 2004 the claimant e-mailed the Veterans Agency to inquire about the possibility of a pension for herself and her husband, who had also served in the Royal Air Force.  Her inquiry was treated as notification of a claim in respect of the conditions mentioned in the e-mail, but on 7 February 2005 she was notified of the rejection of the conditions low back injury (1969), anterior wedging lower thoracic verterbral bodies, low back pain syndrome, prolapsed interverterbal disc, lumbar spondylosis, ulcerative colitis, cancer of the uterus, pulmonary embolus and mixed anxiety and depressive disorder as aggravated by or attributable to service.  The appellant appealed against that decision on 18 March 2005 and the appeal was heard in the her absence on 11 May 2006.

3.  The tribunal dismissed the appeal, except to the extent of accepting low back pain as having been aggravated by service.  The tribunal considered that the appellant had failed to discharge the Royston burden of proof in relation to her claimed low back injury in 1969 and, so far as the other conditions were concerned, the tribunal accepted the various medical opinions that those conditions were unconnected with service.  It has been confirmed that the decision and reasons were sent to the appellant on 9 June 2006.

4.   On 16 June 2008 the appellant wrote asking for leave to appeal against the tribunal’s decision, enclosing further evidence in support of her case.  On 6 July 2008 the tribunal chairman who had presided over the appeal purported to give permission to appeal, taking the view that since the hearing of the appeal it had become necessary for the tribunal to give more detailed reasons than previously. The appellant then made a purported appeal within the time of one month prescribed by regulation 13 of the Social Security Commissioners (Procedure) Regulations 1999, but in my observations on the appeal I queried whether the grant of leave to appeal by the chairman was valid in view of the absolute time limit for bringing an appeal imposed by rule 25(5) of the Pensions Appeal Tribunals (England and Wales) Rules 1980.  In written observations dated 9 October 2008 the Secretary of State’s representative submitted that the purported grant of leave to appeal by the tribunal chairman was a nullity, and that under rule 9(3) of the Social Security Commissioners (Procedure) Regulations 1999, which governed the appeal at the time when the submission was made, there was no power for a Social Security Commissioner to admit a late application for leave to appeal if no application for leave to appeal to the chairman had been made before the expiry of the absolute time limit.  The claimant responded to that submission in observations dated 3 November 2008. 

5.    In CAF/1133/2007  Mr Commissioner Jacobs held that a Pensions Appeal Tribunal did not have jurisdiction to consider an appeal to the tribunal brought after the expiry of the time limit imposed by section 8 of the Pensions Appeals Tribunals Act 1943, and a similar conclusion was reached by Stanley Burnton J (as he then was) in Secretary of State for Defence v The Pensions Appeal Tribunal (Lockyer-Evis and others interested parties) [2007] EWHC 1177 (Admin.) [2008] All ER 287.  Those cases were followed by Upper Tribunal Judge Levenson in CAF/1913/2008 [2008] UKUT 1 (AAC) (to be reported as R(AF) 1/09).  The absolute time limit for bringing an appeal against a tribunal decision of one year after the expiry of the normal six week period was imposed by Rule 25(5) of the Pensions Appeal Tribunals Rules 1980 (SI 1980 No. 1120), rather than section 8 of the 1943 Act, but neither those rules nor the former Social Security Commissioners (Procedure) Regulations 1999 conferred power to override the absolute time limit.  If the grant of a valid leave to appeal by the tribunal chairman was a pre-condition of my jurisdiction to consider this appeal, I would therefore have considered myself bound to have upheld the Secretary of State’s submission and to have declined jurisdiction to entertain the appeal further.

6.  However, the claimant’s reply to the Secretary of State’s submission was dated 3 November 2008, that is, the very day that the Upper Tribunal came into existence by virtue of the Transfer of Tribunal Functions Order 2008 (SI 2008 No. 2833), made under the Tribunals, Courts and Enforcement Act 2007.  Under paragraph 2 of Schedule 4 to the Order, which contains transitional provisions, this appeal, which began as an appeal to a Pensions Appeals Commissioner, continues as an appeal to the Upper Tribunal.  Paragraph 3(3) of Schedule 4 provides as follows:

“the First-tier Tribunal or Upper Tribunal, as the case may be, may give any direction to ensure that proceedings are dealt with fairly and, in particular, may-
(a)  apply any provision or procedural rules which applied to the proceedings before 3rd November 2008; or
(b) disapply provisions of Tribunal Procedure rules.”

The effect of that provision is to confer on the Upper Tribunal power to deal with a transitional appeal under either the old or new rules, or a combination of both.

7.  The new rules of procedure mark a fresh starting point for tribunals within the reformed tribunal structure.  They introduce for the first time an explicit overriding objective of dealing with cases fairly and justly, together with an obligation on the parties to co-operate with the tribunal to further that objective, and require tribunals to give effect to the objective when exercising any power under the rules, or when interpreting any rule or practice direction.  There are powers for tribunals to waive any failure to comply with any requirements of their own rules, or of any direction; conferred on the Upper Tribunal by rule 7 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008 No. 2698) in the following terms:

“(1)  An irregularity resulting from a failure to comply with any requirement in these Rules, a practice direction or a direction, does not of itself render void the proceedings or any step taken in the proceedings.
I
(2)  if a party has failed to comply with a requirement in these Rules, a practice direction or a direction, the Upper Tribunal may take such action as it considers just, which may include-
(a) waiving the requirement;
(b) requiring the failure to be remedied;
(c) exercising its power under rule 8 (striking out a party’s case); or
(d) except in mental health cases, restricting a party’s participation in the proceedings.”

     8.   In CSDLA/574/ 2008 [2009] UKUT 40 (AAC) Judge of the Upper Tribunal  Gamble held that the Upper Tribunal has no power to consider an application for permission to appeal to the Upper Tribunal if no application for such leave has been considered by the First-tier tribunal.  He held (at para.7(d):

“Section 11(3) of the Tribunals Courts and Enforcement Act 2007 states that the right of appeal to Upper Tribunal “may be exercised only  with permission (the judge’s italics).  Section 11(4) of that Act goes on to provide that “permission may be given by (a) the First-tier Tribunal or (b) the Upper Tribunal on an application”” from a party to a case.  However, rule 21(2) of the Tribunal procedure (Upper Tribunal) Rules 2008 allows an application to the Upper Tribunal “only if” (the judge’s italics) an application for such permission has been made to the First-tier Tribunal and that application was refused or not was not admitted.  An Upper Tribunal judge can only lawfully consider an application for permission to appeal to that tribunal if that rule has been complied with.  Therefore, I lack jurisdiction to decide the merits of the case because no permission to appeal to the Upper Tribunal has been given by the First-tier tribunal.  Further, I lack jurisdiction to consider giving the claimant permission to appeal to the Upper Tribunal myself because her application for such permission to the First-tier Tribunal has not yet been considered.  Certainly, it has no been either refused or not admitted.  Technically, the claimant’s appeal to the Upper tribunal is only a purported one.

9.  I respectfully agree that there is no power to waive the requirement that permission to appeal must have been granted either by the First-tier Tribunal or by the Upper Tribunal before an appeal can be determined by the Upper Tribunal.  The requirement is one which is imposed by primary legislation and therefore cannot be overridden by the Upper Tribunal’s power under rule  7(2) of the Rules of Procedure (Upper Tribunal) Rules 2008 to waive a requirement “…if a party has failed  to comply with any requirement in these Rules”.  But it seems to me that the requirement in rule 21(2) that a person may apply to the Upper Tribunal for permission to appeal only if an application has been made to the First-tier tribunal and the application has been refused or not admitted is a requirement of the rules of procedure, which does not arise under any primary legislation (unlike the requirement to apply for permission from the Upper Tribunal in order to apply for leave to appeal to the Court of Appeal or Court of Session-see section 13(4) of the Tribunals, Courts and Enforcement Act 2007).  I therefore see no jurisdictional bar on the Upper Tribunal waiving the requirement imposed by rule 21(2) and itself considering whether to grant permission to appeal, even though for some reason the First-tier Tribunal has neither refused nor not admitted such an application.

10.  In this case leave to appeal was purportedly granted under the former Pensions Appeal Tribunals Rules 1980, but the grant of leave must be considered a nullity for the reasons given above.  The effect of section 11(3) of the 2007 Act is that the appeal can only proceed if I give permission to appeal by waiving the requirements of rule 21(2) of the Rules of Procedure (Upper Tribunal) Rules 2008.  Although I do not agree with CSDLA/574/2008 that I have no power to grant permission to appeal at this stage, I have decided not to exercise my power under rule 7(2)(a) to waive the requirements of regulation 21(2), as would be necessary to enable me to proceed to consider whether to give permission to appeal.

11.     The appellant sought to explain the delay in seeking leave to appeal from the tribunal by saying that she was unaware that she had a further right of appeal, and on the basis of her medical condition.  However, her letter did not  say why she had not been aware of her right of appeal at the time she received the tribunal’s decision, and in my view the appellant’s explanation came nowhere near justifying waiting nearly two years before taking any steps to appeal against the tribunal’s decision.  The removal under the new rules of procedure of the former absolute time bar for appealing against tribunal decisions provides a remedy in some exceptional cases where the former provisions resulted in injustice, but should not be seen as an encouragement to delay.  The delay in this case was inordinate and very largely unexplained, and the Secretary of State would have had an indefeasible right to regard this appeal as time-barred but for the introduction of the new procedural rules consequent upon the creation of the new tribunal structure.  I therefore decline to exercise the power under rule 7(2(b) of the Rules of Procedure (Upper Tribunal) Rules 2008 to waive the requirements of rule 21(2) in order to consider whether I should give permission to appeal,  and it follows that section 11(3) of the 2007 Act deprives me of jurisdiction to consider the case further.  I therefore exercise the power conferred by rules 7(1)(c) and 8(2)(a) to strike out the claimant’s case and give the decision set out above.

12.  I should add that, despite the reasons for the chairman’s purported grant of leave to appeal, I do not consider that leave to appeal was merited.  Although commendably concise, the reasons for dismissing the appeal to the tribunal dealt clearly and thoroughly with each of the issues raised by the appeal.  They left the claimant in no doubt of the reasons for the tribunal’s decision and, if I had had to deal with the matter, I would therefore have refused leave to appeal. 

E A L Bano
Judge of the Upper Tribunal

16 March 2009