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Neutral Citation Number:	2012 UKUT 229 AAC
Reported Number:
File Number:	CAF 800 2011
Appellant:	Secretary of State for Defence
Respondent:	RC
Judge/Commissioner:	Three-Judge Panel / Tribunal of Commissioners
Date Of Decision:	27/06/2012
Date Added:	25/07/2012
Main Category:	War pensions and armed forces compensation
Main Subcategory:	Procedure
Secondary Category:
Secondary Subcategory:
Notes:	Reported as [2013] AACR 4 War disablement pension – refusal to review – whether right of appeal A former soldier claimed disablement pension under the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 1983, now replaced by the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 2006. It was accepted that his back condition was a pre-existing condition which had been aggravated during service. Disablement was assessed at between one to five per cent on an interim long-term basis and a disability gratuity of over £1,700 was awarded in lieu of a pension. Following an application for review of the assessment the claimant was notified in 2000 that it had been made final but not that a medical adviser for the Ministry of Defence had also signed a certificate of limitation. The adviser’s view was that the post-service deterioration was due to post-service factors. In 2009 the claimant sought a further review on the basis that his condition had deteriorated. The Secretary of State decided there were no grounds to review the case as it was impossible for any deterioration to be because of service. The claimant appealed. The Secretary of State applied for the appeal to be struck out on the ground that there was no right of appeal against a refusal to review. The First-tier Tribunal held that there was a right of appeal under section 5(2) of the Pensions Appeal Tribunals Act 1943. The Secretary of State appealed. The issues before the Upper Tribunal (UT) were whether the Secretary of State was entitled to refuse to review a decision and, if so, whether the claimant had a right of appeal against such a refusal or a decision that there are no grounds for review. In view of the wider importance of these issues a three-judge panel was constituted. The claimant also applied for judicial review of the Secretary of State’s decision which was transferred to the UT to be heard with the appeal. Held, dismissing the Secretary of State’s appeal and granting the claimant permission to apply for judicial review, but dismissing his substantive application, that: 1. (per Judges Rowland and Mesher) the issuing of a medical certificate of limitation has no legal effect - it is only a device for drawing the attention of decision-makers and medical advisers to reasoning that is likely to be conclusive in future determinations (paragraph 34); 2. (per Judges Rowland and Mesher) where an award has been made under the Service Pensions Order 2006, following an assessment of disablement, an application for review must be treated as both an application for review of the assessment under article 44(1) and an application for review of the award under article 44(2)(c) (paragraph 40); 3. (per Judges Rowland and Mesher) an application for review under article 44(1) (on “any ground”) should always lead to a review and therefore a decision under article 44(6). The absence of an arguable ground for revision should lead to a decision to maintain the decision or assessment (not a decision that there are no grounds for a review) (paragraph 50); 4. (per Judges Rowland and Mesher) a decision under article 44(6) to maintain a previous decision, assessment or award is appealable even though that involves a strained construction of section 5(2) of the 1943 Act (paragraphs 58 and 59); 5. (per Judges Rowland and Mesher) alternatively and additionally, a refusal to review is also appealable; a claimant not only has a right of appeal against a decision under article 44(6) to maintain a final assessment, but also has a right of appeal against a decision that there are no grounds for review of such a final assessment, so that any decision under article 44 is appealable (paragraphs 75 and 76); 6. (per Mr Justice Walker) whether there is a right of appeal under section 5(2) depends on whether the substance of the decision meets the requirements of that section (paragraph130); 7. (per Mr Justice Walker) those requirements may be met by what is done when deciding not to review an earlier assessment and will be met where the application is considered under article 44(1) under the Secretary of State’s current policy (paragraph 131).
Decision(s) to Download:	CAF 0800 2011-00.doc [2013] AACR 4ws.doc