IN THE UPPER TRIBUNAL	Appeal No.  CAF/2868/2006
ADMINISTRATIVE APPEALS CHAMBER				   

Before: UPPER TRIBUNAL JUDGE ROWLAND

Attendances:

For the Appellant:	Mr Michael Reed and Ms Emma Baldwin of the Free Representation Unit.

For the Respondent:	Mr Steven Kovats of counsel, instructed by the Treasury Solicitor

Decision:	The claimant’s appeal is unsuccessful.  The decision of the Pensions Appeal Tribunal dated 9 March 2006 in respect of the commencement date of the award of disablement pension to the claimant is set aside.  However, I give a decision to the same effect:  no adjustment of the award can be made in respect of the period before 26 October 1994 because the relevant application for review was not made until 9 July 1999.

REASONS FOR DECISION

1.	This case began as an appeal to a Pensions Appeal Commissioner.  The proceedings before me have a lengthy history and I regret that the case has taken longer to reach a conclusion than it should have done.  While it has been pending, the functions of Pensions Appeal Commissioners (more strictly, Social Security Commissioners) have been transferred to the Upper Tribunal and the Commissioners have become judges, but those changes do not affect these proceedings.

The facts and procedural history

2.	On 26 October 1994, the claimant claimed a disablement pension under the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 1983 (S.I. 1983/883) (hereinafter “the 1983 Order”) in respect of injuries arising out of a motor cycle accident that occurred on 28 April 1951, while he was serving in the Royal Air Force on national service.  Various decisions were made following the claim and they resulted in the payment of a disablement pension on the basis of assessments of disablement that began at 40% from 26 October 1994 but were increased to 70% from 26 November 1997.  It had been accepted that the claimant was suffering from bilateral noise induced sensorineural hearing loss due to service but the assessment in respect of that was less than 20% and so did not contribute to the 70% assessment upon which entitlement to benefit was based.  The claimant contested the decisions on various grounds in a prolonged correspondence with the War Pensions Agency and, later, the Veterans Agency.

3.	The present case is concerned with the question whether the award of disablement should have been backdated to the date of his accident, instead of being payable only from the date of claim, and so it is the correspondence relating to that issue that needs most consideration here.

4.	When the claimant first claimed a disablement pension in 1994, he said that he had had “no idea I could claim for my accident till A the Citizens’ Advice suggested it and B there was a report in the Sunday Times”.  This was mentioned again in a letter dated 12 August 1996.

5.	In a letter dated 8 December 1997, he asked for more information about war pensions and said that the Royal Air Force Association had told him that he should apply for his pension to be backdated.  He emphasised that “this is not, at this stage, an application to backdate; this is merely a request for information, so that I may make this application”.  On 8 January 1998, he wrote –

“… it is fact that I am suffering from a degree of brain damage, have been for many years and my condition is getting steadily worse.  The details of my accident in 1951 were not in my memory until the War Pensions doctor told me, when I was granted a small war pension, that I was lucky to be alive, she had read my RAF medical records and that I had been very seriously injured”.

On 26 May 1998 he said that he was “misinformed when I was demobbed and never applied”.  

6.	It appears that, on 20 May 1999, a decision was made to the effect that the claimant had no grounds for having his award backdated.  A letter from the claimant’s wife, complaining in broad terms of the War Pensions Agency’s treatment of her husband, appears to have prompted that decision.   Regrettably, no copy of the decision appears in the voluminous papers before me.  However, the claimant complained about the decision having been made, in a letter dated 9 July 1999, in which he suggested that the decision had been made in order to block his ability to make his own claim for backdating (see doc 54).  In the same letter, he also wrote (see doc 53) –

“It was the Citizens’ Advice bureau that first told me that I should apply for a war pension, like any reasonable person I said: ‘Don’t be stupid, I was not involved in any war!’  They reassured me, and I telephoned the War Pensions Agency that day!  To the War Pensions Agency’s credit I was immediately awarded a 40% pension.”

7.	On 22 August 2000 (see doc 60), he wrote –

“Mr David Wright of the RAF Association has told me that, in his opinion, I was one of the few people with grounds and a legal reason to have my pension back-dated, because I had been misinformed when I was demobilised.  I understand that Mr Wright is a specialist in these matters and do not believe he would make this suggestion without foundation.

Following this conversation my wife wrote to the War Pensions Agency asking for details of how we might apply to have my pension backdated.

This letter, as usual, went unanswered until we received a notification that my case had been put before the ‘Secretary of State’, who had decided that I had no grounds to have my pension backdated.  I was never given the opportunity to make my case, but you put your version of events (that I have never seen) before the panel of civil servants, who I understand, you refer to as ‘Secretary of State’.  Your Mr Carter told me later on the telephone that he had initiated this action ‘to save me worry’!  It now seems more likely to me that he looked at my file, saw that Mr Wright was correct, and moved to block any application for backdating my pension.

It has been suggested to me that these sort of hidden bureaucratic decisions will now be subject to the rules of the new human rights legislation.”

8.	On 18 December 2000, the claimant was sent a letter by the Agency responding to that letter and others.  It referred to the advice given by Mr David Wright but did not accept that the claimant had been misinformed.  It then continued –

“The decision not to backdate is a matter for the Secretary of State to decide, and at present there is no right of appeal against the backdating decision, although there are proposals to change this in 2001.  Therefore, it is not appropriate for you to put your version of events before a panel of civil servants as you have suggested in your letter of 22 August 2000, although you can if you wish ask the War Pensions Committee to comment on this matter. …

I can assure you, however, that Mr ––  carefully considered your claim for backdating in May 1999, having regard to the provisions set out in the Service Pensions Order, and informed you on 20 May 1999 that there were no grounds for backdating your award.”

9.	The correspondence continued in like vein until, eventually, on 19 August 2002, the claimant made what he regarded as his “Formal Request that my War Pension be backdated” (doc 156).  In this he made the point that he had never been completely fit since the accident in 1951 and that, although he had been discharged from hospital as “fit to return to full duty”, he had at the same been downgraded from aircrew A1.G1 to A2.G2.U2.  This request for backdating was rejected on 11 September 2002 (doc 158).  It is not clear whether that letter was intended to be another decision or as merely a further explanation of an earlier, unidentified, decision.  It ought, in my view, to have been a decision but the letter itself did not mention any right of appeal or right to apply for a review although there may have been an accompanying document with such information.  In any event, on 14 September 2002 (doc 159), the claimant formally asked what had become the Veterans Agency to “look again” at the decision to refuse to backdate the award.  This elicited a further explanation, dated 29 October 2002 (doc 161), which was followed by yet further correspondence.  It appears from some of that correspondence (see, in particular, docs 198 and 294), that a further decision in respect of backdating was issued on 9 January 2003, but, again, no copy of that decision appears in the voluminous papers before me.  On 21 January 2003, the claimant asked that the Agency “look again at your erroneous decision”. 

10.	Again, the correspondence between the claimant and the Agency continued.  On 15 December 2003, the claimant applied for a review of a number of decisions, including the backdating of his award, on the ground that he was prevented by his injury from claiming earlier.  He relied in particular on a report from a consultant psychiatrist that followed a visit to the claimant on 28 August 2001 (docs 282 to 292).  This application was rejected on 26 January 2004 (doc 294), when the claimant was told that he could apply for permission to appeal out of time against the decision of 9 January 2003.  It is not clear whether he had previously been advised of a right of appeal.  The claimant indicated, in a letter dated 11 February 2004 (doc 302) that was not solely concerned with the backdating issue, that he regarded a request that the Agency formally “look again” at a case was “the first step in the appeal process” but, in the same letter, he queried whether there had been any formal review decisions “which should, of course, have offered me the right to appeal”.  In any event, further correspondence culminated in the issuing of judicial review proceedings, to end which the Agency proposed, among other things, “a review in respect of the commencement date of your award.”  On that basis, Bean J adjourned the judicial review proceedings in early 2005.

11.	On 19 May 2005, a letter headed “Review of commencing date of award of War Disablement Pension” was issued to the claimant.  I will set it out in full.

“All requests for backdating are considered on their individual merits and appropriate decisions are made in accordance with the relevant legislation laid down by Parliament.  In your case, the legislation provides that where a claim for war pension was not made within three months of termination of service, payment of pension shall not normally be made for any period before the date of claim.

We do have discretionary powers to backdate awards in exceptional circumstances where it is considered reasonable to do so.  Examples of these circumstances are departmental error or misdirection or where a claimant was prevented by illness from claiming earlier.

Information on War Pensions and how to claim are issued to all service personnel on their discharge from the Armed Forces and this Agency and its predecessors have, over the years made information on War Pensions available to the public.  The responsibility for claiming rests with each individual and we cannot accept that lack of knowledge constitutes exceptional circumstances for not claiming earlier.

Advice from our doctors has confirmed that there are no reasons, medically, why you should have been prevented from claiming earlier.

I am sorry for what will be a disappointing reply.  May I remind you that you have a right of appeal against this decision, along with your right of appeal against the other decisions also being notified to you.”

12.	On the same date, the Secretary of State decided not to alter a decision given on 10 April 2003 to the effect that the claimant was suffering from bilateral sensorineural hearing loss that was not due to service noise exposure but that that hearing loss was neither attributable to, nor aggravated by, the claimant’s service and the Secretary of State also refused to review the 70% assessment of disablement 

13.	The claimant appealed against all three decisions.  In respect of the commencement date appeal, the Secretary of State submitted (doc 771) –

“Facts

[The claimant] first contacted the Veterans Agency to claim a war disablement pension on 26th October 1994.  The completed claim form was returned to the Veterans Agency on 14th November 1994.  The Secretary of State (SoS) has decided that the commencement date of [the claimant’s] award is correct.  [The claimant] has appealed against this specified decision because he considers that the award should commence from an earlier date.  [The claimant] claims he was not aware that he had suffered any head injuries at the time and that his injuries were the cause of his disablement as claimed in 1994. 

The Secretary of State has reconsidered the commencing date of award, and maintained the decision to award from the date [the claimant] claimed, 26th June 1994.  [The claimant] has appealed against this specified decision because he considers that that award should commence from an earlier date. 

The Applicable Law

Section 5A of the Pensions Appeal Tribunal Act 1943 – provides a right of appeal against a specified decision. 

Regulation 3(1)(a) of and Schedule 1 to the Pensions Appeal Tribunals (Additional Rights of Appeal) Regulations 2001 confirms that a decision on a commencing date made on or after 9th April 2001 is a specified decision. 

Article 2(2) of The Naval, Military and Air Forces Etc (Disablement and Death) Service Pensions Amendment Order 2001 (Statutory Instrument (SI) 2001/409) confirms that the version of Article 65 – Schedule 3 introduced from 9th April 2001 applies to all decisions on commencing date made on or after that date.

Article 3 A/B and Article 3 D(1) & (2) of The Naval, Military and Air Forces Etc (Disablement and Death) Service Pensions Order (SI 1983/883) explains how a claim can be made and the date of the claim.  

Article 65 of, and Schedule 3 to The Naval, Military and Air Forces Etc (Disablement and Death) Service Pensions Order 1983 (Statutory Instrument 1983/883) as amended by SI 2001/409 – sets out the rules for commencing dates of award under that Order (See Annex A).

Reasons for Decision

The Secretary of State accepts that for the purposes of Article 3 A/B and Article 3 D(1) & (2) a valid claim to a war disablement pension has been made and that the date of the claim is 26th October 1994.

Article 65 of, and Schedule 3 to, The Naval, Military and Air Forces Etc (Disablement and Death) Service Pensions Order 1983 ((SI) 1983/883) as amended by SI 2001/409 applies because the decision on the commencing date of award was made on or after 9th April 2001.

The Secretary of State also considered whether any of the provision under the other paragraphs of Schedule 3 applied and decided that they did not.  

[The claimant’s] accepted disablement of Post traumatic stress disorder and Chronic pain personality syndrome are not psychotic mental conditions and would not be conditions that would impair one’s capacity, on a continuous basis, from making representations.

Brain damage has been accepted as part and parcel of the Head and Neck injury.  Our doctors are medically of the opinion that the symptoms [the claimant] claims as a result of the Head and Neck injury and brain damage would not have prevented [the claimant] on a continuous basis from making representations sooner that he did.  

[The claimant] reported in his representations dated 12th August 1996 that although he had had trouble with his arm, shoulder, neck and head ever since service, he was, with the help of osteopathic and chiropractic treatment, able to keep his pain under control and lead a “perfectly normal life” until 1988.  This letter appears on page 21 of the statement of case.  There is also evidence on file from [the claimant’s] GP; these records go back as far as 1950 and do not show incapacity of such a nature and severity on a continuous basis as to have prevented [the claimant] from making representations any earlier than he did.”

No reference was made to the “discretionary powers” mentioned in the decision of 19 May 2005 itself.

14.	The appeals in respect of the hearing loss and the commencement date of the award were dismissed by the Pensions Appeal Tribunal on 16 March 2006.  In respect of the commencement date of the award, the Pensions Appeal Tribunal said (doc 811) –

“The ground on which backdating of the award before the first date of claim was made is not within any of the prescribed circumstances of Schedule 3 of the Service Pensions Order.  The grounds given are that the Appellant had no idea that he had suffered head injuries and that these injuries were the cause of his disabilities until the time of the claim.   Such grounds do not fit any of the “gateways” in Schedule 3, including paragraph 5 relating to problems of incapacity and paragraph 10 relating to acts or omissions of the Secretary of State.  We have also considered Schedule 3 as a whole, but having done so do not consider that any of the provisions for backdating in the Schedule are applicable to the situation described by the Appellant.  So far as the Appellant’s grounds are concerned, if anything they indicate the absence of at least any significant “trouble” caused by the road traffic accident in 1951 until many years later, i.e. the time of the claim.  Such a situation is not supportive of backdating.”

15.	The appeal against the assessment of disablement was heard by a Pensions Appeal Tribunal on 8 May 2006 and resulted in a reduction in the assessment from 70% to 30% with effect from 30 June 2004 to 2 May 2008.  The judicial review proceedings that had been adjourned by Bean J were then “discontinued” by Mr Kenneth Parker QC, sitting as a deputy judge of the High Court, a decision that must, as Mr Kovats submitted in his first written submission in this case, be construed as a refusal of permission to apply for judicial review.

16.	On 15 November 2006, I granted leave to appeal against both of the decisions given by the Pensions Appeal Tribunal on 16 March 2006.  I refused permission to appeal against the assessment decision of 8 May 2006 on the ground that a Commissioner had no jurisdiction.  The claimant made a new claim to the High Court for judicial review of the decision of 8 May 2006 instead.  I held a hearing of the appeals in the cases where I had granted leave to appeal.  My decision in the hearing-loss appeal (on file CAF/2792/2006) was given on 12 February 2008.  I held a second hearing in the present case because the claimant wished to challenge the approach I had taken in R(AF) 3/08.  After that hearing, the claimant dispensed with the services of his representatives and asked me to defer giving my decision until the judicial review proceedings had been concluded.  The claimant has not replied to recent correspondence from the Upper Tribunal.  The new judicial review proceedings appear to have made their way to the Court of Appeal, where the claimant was successful (R.(Bunce) v Pensions Appeal Tribunal [2009] EWCA Civ 451).  That decision appears to have no relevance to the present case.  I therefore now give this decision.

R(AF) 3/08

17.	In R(AF) 3/08, I considered at some length the statutory provisions concerning the making of decisions in respect of the backdating of claims, which are to be found in Schedule 3 to the 1983 Order.  I observed that Schedule 3 had been amended in 1997 and again in 2001, that it also applied to the backdating of the effect of review decisions and that a decision in respect of backdating could be altered only on review under article 67(2) of the 1983 Order.  Therefore I decided that a person applying for a review of the commencement date of an award needed to show good grounds for backdating the effect of a review (under the law in force at the date of the application for review) as well as good grounds for backdating the claim (under the law in force at the date of the claim).

18.	Until 1997, there was a broad discretion to backdate claims or the effect of review decisions.  In R(AF) 3/08, I raised the question whether the Secretary of State should automatically have considered whether there were grounds for exercising the discretion to backdate an award whenever an award was made.  However, I took the view that, even if the Secretary of State should have done so, any further delay caused by that failure was unlikely to be prejudicial to the claimant’s case whether the claimant had to make a claim or an application for review in order to secure backdating.

The challenge to R(AF) 3/08

19.	Mr Reed submitted that I had had insufficient regard in R(AF) 3/08 to the principle that amendments to legislation should not be retrospective.  He submitted, correctly, that when a decision was reviewed under article 67(2) of the 1983 Order, the question on review was whether the decision being reviewed was the right one under the law that fell to be applied by the person making that earlier decision.  That is, as he submitted, the nature of a review and appears to have been overlooked in this case by the Secretary of State in his submission to the Pensions Appeal Tribunal and by the Pensions Appeal Tribunal itself.  However, it does not follow that the commencement date of an award made on review is governed solely by the law in force at the time relevant to the decision under review rather than at the time relevant to the review.  

20.	Mr Reed referred me to Yew Bon Tew v Kenderaan Bas Mara [1983] 1 A.C. 553 for the proposition that clear words are required if an acquired right is to be taken away retrospectively.  However, the Privy Council also referred to the common law proposition that no person has a vested right in any particular course of procedure and then went on to make the point that, while time limits are generally procedural, they may give rise to substantive rights so that, in that case, the defendants’ right to rely on a time bar was not removed retrospectively by a provision extending the time for bringing an action.

21.	The fixing of a commencement date of an award is essentially a procedural rule as it is another way of imposing a time limit for making a claim or application for review.  It happens that, in this case, the decision under review was itself concerned with the backdating of an award on the claimant’s original claim, but that is not usually the case.  It is implicit in article 67(2) that a decision is final until reviewed and I do not see how, where the commencement date is not the substantive issue, a claimant can be said to have acquired a right to have an award made on the review backdated under provisions that have been revoked before the review process was initiated.  It makes no difference in principle that the commencement date is the substantive issue.  I am not persuaded to resile from what I said in R(AF) 3/08.

22.	In any event, the more important aspect of R(AF) 3/08 to my mind is not so much what I said about the version of the legislation to be applied but is the point that regard must be had to delay in applying for a review and not just delay in making the original claim.  That was true even under the original version of Schedule 3 (see the last column of item (iv) in paragraph 1(b)).  Although, the application of the original version of the legislation arguably produces a more favourable outcome for the claimant in relation to the question whether he had good grounds for delay in making his original claim and therefore whether there are grounds for reviewing the original decision not to backdate the award, there is force in Mr Kovats’ submission that it does not matter in this case under which version of the legislation the case is decided when one comes to consider whether there are grounds for making an award on the review in respect of a period that was necessarily before the date of application for the review.

Grounds for backdating the original claim

23.	It was Ms Baldwin who argued this part of the claimant’s case.  Under the broad discretion that existed at the time of his original claim, the claimant certainly had an arguable case for having his award backdated.  It seems clear that he did not claim before 26 October 1994 because he did not realise that he could.  One question to be answered when considering whether to exercise the discretion in his favour would have been the question why he did not realise he could make a claim.  If one assumes that the claimant was given the usual information about war pensions when he was discharged from service, it does not necessarily follow, as the Secretary of State seems to have understood, that the claimant should have realised that he could make a claim in the circumstances of his case.  The claimant has raised two issues.  The first is whether he should have realised that such mental disablement as he suffered before his claim was attributable to his motor cycle accident because, he submits, he did not know that he had suffered lasting brain damage in that accident and had no reason to link his problems later in life (particularly from 1988) to the accident in 1951.  The second is whether he should have realised that the war pension scheme potentially applied to him at all.  Assuming that he was aware in broad terms that there was a pension scheme for those disabled due to service whether in conflicts or otherwise, he might still have believed that it did not apply to an airman injured in a motor-cycle accident while on leave a hundred miles from the Royal Air Force station where he was based and it would be arguable that such a belief was reasonable (and possibly even correct, although he would not wish to go that far).  In social security law, where the statutory test was whether a person had “good cause” for making a late claim, it was held by a Tribunal of National Insurance Commissioners in R(S) 2/63 that, although it was the general duty of a claimant to find out what his rights were, a person had good cause for failing to claim benefit if he reasonably believed there was nothing to enquire about, it being recognised that some parts of the social security system were obscure.  In that case, it was held that the claimant had good cause for not claiming sickness benefit while he reasonably believed that he would be paid his wages in full whilst sick and also believed, wrongly, that he would not be entitled to be paid sickness benefit if the wages were paid in full.  It is possible that a similar case might have been made out here.  Official information about the war pensions scheme is, understandably, expressed in broad terms and may not necessarily alert all those with potential entitlement of the need to make enquiries.

Grounds for backdating an award on review

24.	However the above considerations do not necessarily assist the claimant in the present case, which arises on an application for review.  Not only must consideration be given to a later version of Schedule 3 but also regard must be had to delay after the claimant made his claim in 1994, by which time he obviously did know that he was suffering from disablement attributable to the motor-cycle accident and did know that the war pensions scheme did apply to him.  

25.	The version of Schedule 3 to the 1983 Order that came into force on 7 April 1997 was amended with effect from 9 April 2001 and has now been re-enacted as Schedule 3 to the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 2006 (S.I. 2006/606) (hereinafter “the 2006 Order”), with only some minor renumbering of subparagraphs necessary due to the amendment to paragraph 1 mentioned below.  The effect of paragraph 1(1) has, since 1997, been that, following a review, an award cannot be made in respect of a day before the date of the last application for review, except in circumstances specified elsewhere in the Schedule.  Paragraph 1(6) provides that, in the case of a review instigated by the Secretary of State, the relevant date is the date of the review itself.

26.	Because the application for review in the present case was, on any view, made more than three years after the original date of claim in 1994, paragraph 5 can be of no assistance and the only potentially relevant provisions are paragraph 1(6A) (now paragraph 1(7) of Schedule 3 to the 2006 Order) and paragraph 10, which were respectively inserted and amended with effect from 9 April 2001.

27.	Paragraph 1(6A) provides –

“(6A)	Where an award is reviewed as a result of a decision (“the original decision”) which arose from official error, the reviewed decision shall take effect from the effective date of the original decision and for this purpose “official error” means an error made by the Secretary of State or any officer of his carrying out functions in connection with war pensions, defence, or foreign and commonwealth affairs, to which no other person materially contributed, including reliance on erroneous medical advice but excluding any error of law which is only shown to have been an error by virtue of a subsequent decision of a court.”

28.	The drafting of this paragraph is poor.  I presume the words “which arose” should be read as “having arisen” and I have already drawn attention, in R(AF) 3/08 (at paragraph 17), to the lack of any specific provision for cases where the effective date of the original decision was itself wrong due to official error.  I observe that, even in the 2006 Order, the reference to a “court” was not extended to include a Commissioner.  The coming of the Upper Tribunal has consequently also had no impact on this particular paragraph, although other paragraphs of the Schedule did refer to Commissioners and, now, the Upper Tribunal.

29.	From 7 April 1997 until 8 April 2001, paragraph 10 provided –

“10.	…, where a claimant satisfies the Secretary of State that –
    (a)	he would have made a claim, an application for a review or … on an earlier date than he actually did but for an administrative error on the part of the Secretary of State, the Secretary of State for Defence, or the Secretary of State for the Foreign and Commonwealth Office; and
    (b)	that error continued to be the dominant cause of the delay up to the moment the claim or application was made,
any reference in this Schedule to the date of a claim, date of application for review … shall be treated as a reference to the earlier date referred to in this paragraph.”

30.	From 9 April 2001, the scope of subparagraph (a) was widened so that it read –

    “(a)	he would have made a claim or an application for review on an earlier date than he actually did but for an act or omission of the Secretary of State or any officer of his carrying out functions in connection with war pensions, defence, or foreign and commonwealth affairs, which wrongly caused him to delay the claim or application and that act or omission was the dominant cause of the delay.”

31.	This provision is another one that is not as happily drafted as it might be.  It does not expressly contemplate a case where the Secretary of State reviews a decision on his own initiative in circumstances where an act or omission by a relevant person has caused the claimant not to make any application at all, although perhaps it should be read as covering such a case.  

32.	All this legislation requires that there be identified the various decisions that have been made and any applications for review.  There being no prescribed form for applying for review, identifying applications for review is not necessarily easy, although this may not matter a great deal if the Secretary of State’s failure to act on correspondence amounts to an official error within paragraph 1(6) or to an omission within paragraph 10.  Identifying decisions should be easier, but I find it astonishing that, although I have before me over a thousand pages of documents (for comments on which see paragraphs 17 to 20 of CAF/2792/2006), it appears that the Secretary of State has lost his copies of the decisions dated 20 May 1999 and 9 January 2003 and the status of the letter of 11 September 2002 is unclear when it should clearly have been a formal decision.  If the Secretary of State cannot retain a proper record of a decision he is likely to find that any doubt about the scope or effectiveness of the decision is determined against him.

33.	It is also unsatisfactory that the decision of 19 May 2005, which purported to be a review, completely failed to mention what decision was being reviewed and what grounds of review were relevant and then referred to “discretionary powers” for backdating an award, without identifying what the powers were, and gave a completely inadequate explanation for not exercising the powers in the claimant’s favour.  The Secretary of State’s submission to the Pensions Appeal Tribunal was little better.  It did refer to Schedule 3 but it completely failed to make any reference to the fact that the decision under appeal was either a review decision or a refusal to review and it made no mention whatsoever of the powers of review.  What is the point of the Secretary of State carefully prescribing limited powers of review if the agency instructed to act on his behalf and in his name totally ignores the legislation?

The Pensions Appeal Tribunal’s error

34.	Against this background, it is perhaps unsurprising that the Pensions Appeal Tribunal should have taken its lead from the Secretary of State’s submission and simply applied Schedule 3, in its most recent form, to the claimant’s original claim, without any consideration being given to the decision under appeal being a review decision.

35.	The Pensions Appeal Tribunal potentially had to consider a number of issues.  First, it had to identify the decision being reviewed.  Then it had to decide whether the review decision was made on the Secretary of State’s own initiative or on an application for review and the date of any such application.  Then it had to consider whether there were any grounds for reviewing the challenged decision.  If there were any such grounds, it had to consider whether the decision being reviewed should be revised, applying the law in force at the time of that decision.  Finally, it had to consider whether any award could have effect in the light of any delay in applying, or a complete failure to apply, for a review, applying the law in force at the time of the application for review or the review.  

36.	However, it did not necessarily have to consider those issues in any particular order and it did not need to decide all of them if the answer to one was determinative.  In effect, what the Pensions Appeal Tribunal did here was to go straight to the merits of the claimant’s first application for backdating.  Even on the sort of technical analysis suggested in the last paragraph, that was not an inappropriate approach.  The earliest decision on the issue of backdating – that of 20 May 1999 – was obviously decided on the merits of the case and deciding that that decision should not be revised on the merits would have been fatal to the claimant’s appeal against the review decision even if all other matters had been decided in his favour.

37.	Therefore, since the Pensions Appeal Tribunal did decide against the claimant on the merits, I would not allow this appeal were it not that it applied the wrong legal test.  It considered whether the original claim should have been backdated under the law as in force at the time of its decision rather than under the law in force at the time of the claim, which was very different.  It is for that reason that I set the Pensions Appeal Tribunals’ decision aside.

My decision

38.	However, I can substitute my own decision which is to the same ultimate effect although for very different reasons.  

39.	The decision of 19 May 2005 did not identify the decision being reviewed.  However, for the reasons given in paragraph 22 of R(AF) 2/08, I do not consider that there was power to review a review decision that did not revise an earlier decision or to review a refusal to review and therefore it is unnecessary to consider what decisions may have been made in 2002 and 2003.  I therefore accept Ms Baldwin’s submission that the decision under review in this case must be taken to have been the decision of 20 May 1999.

40.	Was the review instigated by the Secretary of State or did it follow an application by the claimant, made on 19 August 2002 at the latest or 9 July 1999 at the earliest?  I am again prepared to take the approach most favourable to the claimant, which is to assume that the review was made on his application made on 9 July 1999.

41.	The Secretary of State apparently considers that there is no right of appeal against a refusal to review – he has recently obtained permission to appeal from a decision of the First-tier Tribunal on this very issue – but Mr Kovats did not take that point in this appeal.  The Secretary of State’s approach may explain why the claimant was not informed of a right of appeal against what otherwise appear to be decisions in 2002 and 2003.  In any event, since the claimant was informed he had a right of appeal against the decision of 19 May 2005, which was described in the decision letter as a review, it can, I think, be presumed that the Secretary of State was satisfied that there were grounds for review but refused to revise the decision being reviewed, in which case an appeal does lie even on the Secretary of State’s approach.

42.	I am prepared to accept that there were grounds for review because the correspondence from the claimant since the decision of 20 May 1999 has included further information as to why he did not believe that he a had a right to claim a disablement pension, sufficient to show that the Secretary of State was ignorant of material facts on 20 May 1999 (see article 67(2)(a)).

43.	For the reasons I have already indicated above (paragraph 23), I would be inclined to revise the decision of 20 May 1999 on the merits and, for the reasons given in paragraphs 30 to 33 of R(AF) 3/08, would accept that that decision could have been effective as a backdating award had the decision been made at the time.

44.	However, that still leaves the question whether an effective award can now be made given that the decision is made on an application for review made on 9 July 1999.  This must be determined on the basis of Schedule 3 as it was in force in 1999 or, perhaps, in 2005.  The simple problem is that paragraph 1(1) prevents any award  or adjustment of an award being effective before the date of the application for review unless one of the other provisions of the Schedule applies.  If the application for review was on 9 July 1999, it would follow that an award in respect of a period before 26 October 1994 could not be made.

45.	I do not consider that paragraph 10 can assist the claimant.  He could not anyway have applied for a review before 20 May 1999 because the decision to be reviewed was not made until then.  Where an application for review is concerned, I doubt that paragraph 10 can ever lead to an award being made in respect of a period before the date of the decision being reviewed.  

46.	Paragraph 1(6A) is different and does allow backdating to the effective date of the decision under review.  It came into force only in 2001 but could have been relied upon in 2005 since the Secretary of State could have instigated a review himself.  However, it applies only where the decision being reviewed was the result of an official error.  In R(AF) 5/07, Mr Commissioner Bano held  that the term “official error” in the 1983 Order meant the same as the same term in social security legislation: i.e., a “clear and obvious mistake made by the officer of the Department on the facts disclosed to him or which he had reason to believe were relevant”.  Although I would be inclined to reach a different conclusion from the Secretary of State even on the facts then known to him, I cannot say that his decision of 20 May 1999 was based on a clear and obvious mistake.  His decision was not perverse or based on a misunderstanding or the result of a procedural defect.  It was one he could reasonably reach on the material before him and, although the claimant has complained that the decision was made prematurely, I am quite satisfied that the Secretary of State was entitled to make the decision when he did given the length of time that had elapsed since the claimant had first raised the question of backdating.

47.	Therefore, the claimant’s appeal must fail.  Once the decision of 20 May 1999 was made it was, in the absence of official error, effectively unchallengeable.  This may have been unjust (although, like the Pensions Appeal Tribunal, I doubt that the assessment of disablement in respect of most of the period before the date of claim would have been as high as the assessment after the claim) but was then the effect of legislation that failed to provide any right of appeal.  The legislation has been amended but this case shows why it is not always possible to reopen cases decided before the right of appeal was introduced.

MARK ROWLAND
25 March 2011