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Neutral Citation Number:	2012 UKUT 116 AAC
Reported Number:
File Number:	CAF 914 2008
Appellant:	Secretary of State for Defence
Respondent:	PY
Judge/Commissioner:	Judge A. Lloyd-Davies
Date Of Decision:	28/04/2009
Date Added:	16/05/2012
Main Category:	War pensions and armed forces compensation
Main Subcategory:	Procedure
Secondary Category:	War pensions and armed forces compensation
Secondary Subcategory:	Other
Notes:	Reported as [2012] AACR 44. Procedure – Pensions Appeal Tribunals – whether and when a tribunal can change its mind after giving an oral decision War disablement pension – meaning of “officer of the Secretary of State” in Service Pensions Order 2006, Schedule 3, paragraph 10 In October 1981 the claimant, who was serving in the Royal Navy, seriously injured his left leg in a road accident. He was granted premature voluntary release and discharged from the Royal Navy in December 1985. On 21 August 2006 he made a claim for war disablement pension. A decision was made accepting that the condition of his left leg was attributable to service and giving an assessment of 20 per cent with a commencement date of the award of 21 August 2006. The claimant appealed, inter alia on the ground that his award should have been backdated to the date of his discharge in 1985. The relevant provisions of the Naval, Military and Air Force Etc. (Disablement and Death) Service Pensions Order 2006 (the 2006 Order) require a claim to be made as a pre-condition of an award (article 34) except where the claimant has been discharged from service on medical grounds (article 35). Where a claim is not necessary an award takes effect from the day after the date of discharge (Schedule 3, paragraph 1(10)), otherwise it takes effect from the date of claim if later than the date of discharge (Schedule 3, paragraph 1). There is an exception: “Where a claimant satisfies the Secretary of State that he would have made a claim on an earlier date … but for an act or omission of the Secretary of State or any officer of his carrying out functions in connection with war pensions … which wrongly caused him to delay the claim … and that act or omission was the dominant cause of the delay, and … continued to be the dominant cause of the delay up to the moment the claim was made.” (Schedule 3, paragraph 10.) On 18 October 2007 a Pensions Appeal Tribunal gave an oral decision that the claimant’s appeal on backdating was disallowed. The following morning, 19 October, the tribunal had a change of mind and gave a short-form written decision, followed later by a written statement of reasons, deciding that backdating should be allowed from the date of the claimant’s discharge in 1985. The claimant had given evidence that he had been advised by a Chief Petty Officer not to take medical discharge as he would be labelled “disabled” and it would make subsequent employment difficult. In giving reasons for its amended decision the Pensions Appeal Tribunal found that the claimant regarded this advice, reinforced by a medical report from a Naval Surgeon Captain, as wholly authoritative and accepted it without question. It further found that the actions of the Chief Petty Officer (backed up by the authority of the Surgeon Captain) represented actions of an officer on behalf of the Secretary of State within paragraph 10 of Schedule 3 to the 2006 Order and that those acts or omissions wrongly caused the claimant to delay his claim and that these matters were, and remained, the dominant cause of the failure to claim. The Secretary of State for Defence appealed with the leave of the President of the Pensions Appeal Tribunal. Held, allowing the appeal, that: 1. the rules governing the giving of a decision by a Pensions Appeal Tribunal do not provide for the decision to be announced orally. The tribunal does not make its decision until that decision is recorded in writing and given or sent to the parties: Hanks v Ace High Productions Ltd [1978] ICR 1155, R v Special Adjudicator ex parte Bashir [2002] Imm AR 1 and SK (Sri Lanka) v SSHD EWCA Civ 495 followed (paragraph 9); 2. the failure by the tribunal to give any explanation of its radical change of position from the oral to the written decision rendered the tribunal decision given on 19 October in error of law (paragraph 12); 3. the phrase “officer of the Secretary of State” in paragraph 10 of Schedule 3 to the 2006 Order does not include armed forces officers acting as such (paragraphs 20 and 21). The Upper Tribunal judge substituted a decision that there were no grounds for backdating the claim to any earlier date than 21 August 2006. Editor’s note re paragraph 9: rule 31(1) of the Tribunal Procedure (First-tier Tribunal) (War Pensions and Armed Forces Compensation Chamber) Rules 2008 (SI 2008/2686) provides that a tribunal may give a decision orally at a hearing.
Decision(s) to Download:	CAF 0914 2008-00.doc [2012] AACR 44bv.doc