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Neutral Citation Number:	2015 UKUT 557 AAC
Reported Number:
File Number:	CAF 2196 2014
Appellant:	WS
Respondent:	Secretary of State for Defence (WP)
Judge/Commissioner:	Judge G. Knowles QC
Date Of Decision:	16/10/2015
Date Added:	27/10/2015
Main Category:	War pensions and armed forces compensation
Main Subcategory:	War pensions - specified decisions
Secondary Category:
Secondary Subcategory:
Notes:	Reported as [2016] AACR 21 War pensions – constant attendance allowance - article 8(4) – meaning of phrase “attendance on two or more occasions per night” The appellant, a former soldier, had been awarded constant attendance allowance (CAA) at the full day rate. In 2012 he claimed an increase of CAA claiming that he now needed significant attendance once or twice during the night from his wife including, among other things, help in changing bed linen or nightclothes, medical treatment and watching over to avoid harming himself or others. A medical examination found that the appellant needed attendance in connection with personal needs for some thirty minutes on one occasion every night. The Secretary of State rejected the appellant’s claim as his needs did not meet article 8(4) of Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 2006 (SPO). The First-tier Tribunal (F tT) rejected the appellant’s appeal, accepting from the evidence submitted by the appellant’s wife that she might be required to attend upon him on two or more occasions per night for 80 per cent of the time (but not 100 per cent). The issue before the Upper Tribunal (UT) was the proper interpretation and application of article 8(4)(a) of the SPO and, in particular, how the words “attendance on two or more occasions per night” should be interpreted. Held, allowing the appeal, that: 1. when an ordinary or familiar English word was used in a statutory test, but not defined in the legislation, it should be construed and applied in its context, having regard to the underlying purposes of the legislation (paragraph 30); 2. the underlying purpose of article 8 was to establish entitlement to CAA for the most severely disabled service pensioners. The first element of article 8(4)(a) described the requirement for care “per day” where the word “per” meant “every” or “each”. The second element of article 8(4)(a) described the requirement for “attendance on two or more occasions per night”. The word “per” in the phrase “per night” had the same meaning as the first element, namely “every” or “each” (paragraphs 31 to 34); 3. satisfaction of article 8(4)(a) required attendance on two or more occasions each night alongside frequent or regular attendance for periods during the daytime which totalled not less than eight hours each day (paragraph 39); 4. the F-tT’s reasoning was inadequate and amounted to a material error of law (paragraphs 41 and 47). The judge set aside the decision of the F-tT and remitted the appeal to a differently constituted tribunal to be re-decided in accordance with her directions
Decision(s) to Download:	[2016] AACR 21ws.doc