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Neutral Citation Number:	2014 UKUT 358 AAC
Reported Number:
File Number:	CAF 529 2014
Appellant:	JM
Respondent:	Secretary of State for Defence (WP)
Judge/Commissioner:	Judge M. Rowland
Date Of Decision:	05/08/2014
Date Added:	02/09/2014
Main Category:	War pensions and armed forces compensation
Main Subcategory:	War pensions - assessment
Secondary Category:	Tribunal procedure and practice (including UT)
Secondary Subcategory:	leave/permission to appeal
Notes:	Reported as [2015]AACR 7 War pension – tribunal revising an assessment of disablement to the detriment of the claimant – commencing date of revised award The claimant appealed to the First-tier Tribunal (F-tT) against a decision of the Secretary of State to maintain an assessment of disablement of 60 per cent. In the absence of the claimant, and despite his representative not having been able to obtain his instructions, the F-tT reduced the assessment to 30 per cent from the date of the claimant’s application for review. The claimant appealed to the Upper Tribunal (UT) with permission granted by the F-tT on the ground that it had arguably erred in law in failing to take account of article 44(4) and (5) of the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 2006 and to consider the possibility of an adverse revision properly before proceeding in the claimant’s absence. The UT also raised the question of the date from which the F-tT had revised the assessment. Held, allowing the appeal, that: 1. article 44(4) of the 2006 Order provided that an assessment may not be revised to the detriment of a claimant unless it “was given or made in consequence of ignorance of, or a mistake as to, a material fact, or of a mistake as to the law” or “there has been a change in the degree of disablement due to service since the assessment was made” and the F-tT had failed to make it clear whether one of those conditions was satisfied – it had made no reference to article 44(4) and its reasons did not imply a clear finding on this point (paragraphs 13 to 14); 2. the F-tT had failed to explain why it had considered it fair to reach its decision in the absence of the claimant and without his representative having been able to obtain proper instructions (paragraphs 18 to 20); 3. the correct approach to applying Schedule 3 to the 2006 Service Pensions Order (commencing dates of awards) was to regard any unfavourable review as having been instigated by the Secretary of State, even if prompted by a claimant’s application (paragraph 29); 4. but, in the present case, the appeal had been brought only against the assessment and it was not the F-tT’s function to review the award, or to fix the commencing date, but only to make such assessment as was necessary for the purposes of the consequent award. The review of the award only took place after the F-tT had made its decision and, consequently, the commencing date of the reviewed award was the date of that review. However, the F-tT making an assessment from an earlier date had no practical consequences and was therefore immaterial (paragraphs 32 to 33). The decision of the F-tT was set aside and the appeal remitted to a differently constituted tribunal to be decided.
Decision(s) to Download:	[2015] AACR 7ws.doc