[2007] NISSCSC C1_06_07(AF) (16 March 2007)

Decision No: C1/06-07(AF)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

NAVAL, MILITARY AND AIR FORCES ETC (DISABLEMENT AND DEATH)
SERVICE PENSIONS ORDER 1983

ARMED FORCES

Appeal to a Pensions Appeal Commissioner
on a question of law from a Pensions Appeal Tribunal's decision
dated 15 September 2005

DECISION OF THE PENSIONS APPEAL COMMISSIONER

1.	This is an appeal, leave having been granted by a Commissioner, by the appellant against a decision dated 15 September 2005 of a Pensions Appeal Tribunal (PAT) sitting at Belfast.  The PAT was dealing with an appeal against a decision of the Secretary of State refusing to award the appellant an allowance in respect of wear and tear on clothing under Article 17 of the Naval, Military and Air Forces Etc (Disablement and Death) Service Pensions Order 1983 (as amended) (SPO).  The tribunal disallowed the appeal.

2.	The appellant had claimed the said allowance on the basis that he suffered exceptional wear and tear of his clothing (which he submitted included handkerchiefs) because of the disablement of hay fever/respiratory tract infections and bladder problems.  Hay fever was a condition accepted as attributable to service as were acute upper respiratory tract infections (1977-2001).  The appellant had various other conditions accepted as either due to or aggravated by service.  Included as part and parcel of the accepted conditions were (amongst others) non-specific urinary symptoms and subjective breathing difficulties which were considered to be part and parcel of the accepted condition of post-traumatic stress disorder.  Allergic conjunctivitis was considered as part and parcel of hay fever.  Conditions which were formally rejected as being unconnected with service were, amongst others, vitreous floaters, bladder pathology and acute upper respiratory tract infections (post 2001).

3.	Article 17 of the SPO, so far as relevant to this case provides as follows:

“(1)	A member of the armed forces who is in receipt of retired pay or a pension may be awarded an allowance in respect of wear and tear of clothing at the rate specified in paragraph 5 of Part IV of Schedule 1, where either –

(a)	… [not relevant];

(b)	the Secretary of State is satisfied that as a result of the disablement which gives rise to an award under this Order there is exceptional wear and tear of the member’s clothing.”

4.	The Secretary of State had rejected the claim on the basis that the hay fever and respiratory tract infections were assessed at 1-5% and nil respectively.  He was of the opinion, in light of that, that those accepted conditions were not severe enough to cause wear and tear of handkerchiefs which in his opinion were not clothing in any event.  He also rejected the claimant’s evidence that he on occasions used his shirts and T shirts to wipe his nose.  As regards the bladder problem, bladder pathology was a non-accepted condition.  Non-specific urinary symptoms were accepted as part and parcel of post- traumatic stress disorder, the assessment of which remained at 6-14%.  The Secretary of State was still of the opinion that the condition was not severe enough to cause excessive wear and tear of the appellant’s underpants, trousers and shirts.  In the Secretary of State’s opinion there was no reason why the appellant’s accepted conditions should cause excessive wear and tear of his clothing.  His claim for clothing allowance was therefore disallowed.

5.	The appellant appealed to the PAT which disallowed the appeal, reasoning as follows:

“3(i)	Whilst the Veterans Agency agreed that handkerchiefs were not clothes, the Tribunal held that this was irrelevant on account of the assessment of 1-5% which constituted the hay fever element of the claim further to Article 17 of the Service Pensions Order indicating that the problem complained of is not excessive.  Therefore there is not exceptional wear and tear upon the Appellant’s clothing.

(ii)	The bladder problem is accepted as part and parcel of Post Traumatic Stress Disorder, assessed at 6-14%.  By the same reasoning set out at paragraph 3(i) above, the problem complained of is not excessive.  Therefore there is not exceptional wear and tear upon the underpants, trousers and shirts.”

6.	The appellant had not attended the tribunal hearing nor was he represented.  The tribunal had before it at hearing a bundle of documents including, amongst others, the claim form, the statement of case and the answer to same.  In the documents the appellant gave details of how the claimed extra wear and tear occurred.

7.	The appellant appealed to a Commissioner.  He had a variety of grounds:

(1)	He was prejudiced because various documents were not put before the PAT.  These were:

(i)	a report dated 17 November 2004 from Dr H… which he had requested be included as part of the supplementary statement of case;

(ii)	the decision letter of the Veterans Agency dated 2 September 2003 did not appear to have been included as part of the statement of case.
(2)	That the tribunal had erred in that it had not applied the test in Article 17 of the SPO.

(3)	That the tribunal had erred in not considering handkerchiefs to be clothing.

(4)	That the tribunal had erred in that it had used the assessment percentage figures for disablement as determinative of whether or not the requirements of Article 17 were met.

(5)	That the PAT was neither impartial nor independent.

(6)	That the reasons for the decision did not adequately explain it.  In particular they did not indicate what the tribunal had considered as his evidence and how it viewed that evidence.

(7)	The tribunal had not considered his request for direction made by his letter to the tribunal dated 4 September 2005.

8.	I granted leave, my reasons for so doing being that an arguable issue arose as to whether the tribunal dealt adequately with the claimant’s evidence as to wear and tear of his clothing due to the accepted disablement.

9.	The Secretary of State made observations which were received in the Commissioners’ Office on 22 August 2006.  Ms Audley, representing the Secretary of State, submitted that the PAT’s reasons were inadequate in that it appeared to have focused entirely on the assessments of the disablement when reaching the view that there was no excessive wear and tear on clothing, whereas it should have considered all the evidence.  She submitted further that the medical evidence of 17 November 2004 was “not obtaining” to the tribunal’s decision as it post-dated the decision under appeal to the tribunal (that of 2 September 2003) and therefore could not be included in the statement of case for the appeal heard on 15 September 2005.  She submitted that the appellant’s disability did not cause the exceptional wear and tear he was claiming and requested me to refer the matter to a new tribunal.

10.	The appellant disputed this last request by letter dated 21 September 2006.  He wishes me to decide the matter myself.

11.	I sought and received observations from both parties as to whether a handkerchief could be considered as an article of clothing for the purposes of Article 17.  The appellant contended that it should be, the Secretary of State that it should not.

Decision

12.	I do consider that the tribunal has erred in this matter in that it appears to have considered the assessment of the accepted disablements to be conclusively determinative of whether or not there was exceptional wear and tear on the appellant’s clothing within the meaning of Article 17. It has consequently given no indication of how it viewed the appellant’s written evidence in relation to the matter of exceptional wear and tear.  The tribunal is not, of course, bound to accept or to reject this evidence but it should give it consideration and indicate, albeit in general terms, its assessment of the said evidence.

13.	As regards the relationship between the assessed percentage of disablement and Article 17, the percentage attributed to the disablement does not determine whether or not that disablement produces “exceptional wear and tear” of clothing.  It must, however, be remembered that under Article 17(b) the only disablement which can be taken into account is:

		“the disablement which gives rise to an award under this Order.”

That is the accepted and assessed disablement.  No other disablement can be taken into consideration.  Moreover the percentage is not irrelevant.  It reflects the extent of disablement giving rise to the award and it is only that disablement that can be considered.  What the percentage does not do is conclusively determine whether or not there is exceptional wear and tear from that accepted disablement.   

14.	I am in agreement with Ms Audley that this matter should be remitted to a differently constituted tribunal for rehearing and re-determination.  That tribunal with its medical and Forces expertise will be better equipped than I am to make factual findings.  I therefore set aside the decision and remit the matter to a differently constituted tribunal for rehearing and re-determination.  It is to be hoped that the claimant will attend the rehearing.

15.	Certain issues remain.  These are whether or not handkerchiefs can be included as items of clothing, whether the medical report of 17 November 2004 can be considered by the tribunal, the direction issue, the issue of what is meant by wear and tear and the issue of what documentation should be in the statement of case.

16.	As regards the handkerchief question it is correct as the appellant submits that Article 17 does not have a prescribed list of items which can or cannot constitute clothing.  It is long term settled law (Brutus v Cozens (1973) AC 854 at 861) that the meaning of an ordinary word in common use is not a question of law.  However, the proper construction of a statute is a question of law.  As Lord Reid said in Brutus v Cozens: 

“The meaning of an ordinary word of the English language is not a question of law.  The proper construction of a statute is a question of law.  If the context shows that a word is used in an unusual sense the Court will determine in other words what that unusual sense is. … It is for the tribunal which decides the case to consider, not as law but as fact, whether in the whole circumstances the words of the statute do or do not as a matter of ordinary usage of the English language cover or apply to the facts which have been proved.  If it is alleged that the tribunal has reached a wrong decision then there can be a question of law but only of a limited character.  The question would normally be whether their decision was unreasonable in the sense that no tribunal acquainted with the ordinary use of language could reasonably reach that decision.”

The other Law Lords expressed similar views.

17.	In this case, clothing must be given its ordinary natural meaning, there being no indication that it is to be given any special or technical meaning in the legislation.  The word must be considered in context.  There is no definition of clothing in the SPO.  The context in this case is that of “exceptional wear and tear” of clothing.  Bearing in mind that context I cannot find any error in the tribunal concluding that handkerchiefs were not clothing.  Clothing is, in my view, used in the sense of apparel, of that which covers or is worn. One does not usually speak of wearing a handkerchief but of carrying one.  One does not need a handkerchief to be fully dressed.  The purpose of the handkerchief is not for attire but for wiping the nose.  It is of course possible (I do not reach any conclusion in relation to this case) for an accepted condition to cause extra wear and tear on handkerchiefs as could be the case with other items eg spectacles, false teeth or bedclothes.  However, the allowance covers only clothing as that is ordinarily understood.  That does not in my view include handkerchiefs.  The tribunal did not err in that respect.

18.	As regards the meaning of wear and tear, again these are ordinary English words the meaning of which is not a matter of law though the sense in which the phrase is used in the statute is.  Article 17 refers to “exceptional wear and tear” but “exceptional” qualifies “wear and tear” so there must be “wear and tear” and it must be “exceptional”. I note that the definition of “wear and tear” in Collins English Dictionary is “damage, depreciation, or loss resulting from ordinary use.” [my emphasis] This phrase as used in the legislation relates to exceptional damage or loss resulting from ordinary use ie use as clothing.  The use of shirts and T shirts to wipe the nose is not such ordinary use.  Such use is not wear and tear within the legislation.

19.	As regards the medical report of 17 November 2004 not being included in the statement of case or otherwise disclosed to the tribunal, the relevant legislation is contained in the Pensions Appeal Tribunals Act 1943 and Pensions Appeal Tribunals (Northern Ireland) Rules 1981.  Section 5B of the Act provides that:

		“In deciding any appeal, a Pensions Appeal Tribunal –

(a)	need not consider any issue that is not raised by the appellant or the Minister in relation to the appeal; and

(b)	shall not take into account any circumstances not obtaining at the time when the decision appealed against was made.”

20.	It does appear that the appellant requested the Secretary of State to include the said medical report of 17 November 2004 in its supplementary statement of case but the Secretary of State declined to do so, on the basis that that report was not “obtaining to the appeal”.  I am not altogether clear what is meant by this but proceed on the assumption that it is an oblique reference to section 5B(b) above.  A copy of the report is in the papers before me.  (I think by virtue of a direction of the PAT Chairman after the issue of the decision and to enable him to consider the application for leave).  The appellant wished same considered by the tribunal because he considered it relevant because Dr H… (who wrote the report) had questioned him as to his bladder problems.  It does appear that Dr H… in fact did so as he recites in the “history” section of his report that bladder investigations were carried out and in the diagnosis and effect section (at page 12) says as follows:

“Bladder
Urological investigation on-going.
A Prostatism confirmed.  Frequency ++ exists
Moderate dysfunction.”

The Secretary of State is correct that this information post-dates the decision under appeal to the tribunal which was dated 3 September 2003.  It appears, however, to pre-date the preparation of the statement of case. Rule 5 of the Pensions Appeal Tribunals (Northern Ireland) Rules 1981 provides that the statement of case is to contain:

“the relevant facts relating to the appellant’s case as known to the Secretary of State, including the relevant medical history of the appellant;”

I consider that the report was relevant to the appeal.

21.	As regards section 5B, this is a matter for the tribunal to apply.  The report does appear to be part of the relevant medical history and should have been included in the statement of case.  It was for the tribunal to decide whether or not the evidence included therein related to circumstances obtaining at 3 September 2003.  To the extent that it did not it could not be taken into consideration by the tribunal.  The mere fact that the report post-dates that decision does not necessarily mean that it or part of it cannot relate to circumstances obtaining at the date of decision.  If, for example, there was a condition in existence at the date of that decision which was covered by a report prepared some time later, that condition (to the extent that it existed at the date of decision) was a circumstance obtaining at the date of decision.  If the condition worsened or improved post the date of decision that, unless reasonably foreseeable at the date of decision, would be a circumstance not obtaining.  I therefore direct that this medical report be put before the tribunal as having relevance to the issues in the appeal.  

22.	As regards the matter of whether or not a direction should have been made for the production of Dr H…’s report to the tribunal, the legislation covering this is set out in rule 6 of the Pensions Appeal Tribunals (Northern Ireland) Rules 1981. That rule provides:

“6.-(1)  Where for the purposes of his appeal an appellant desires to have disclosed any document, or part of any document, which he has reason to believe is in the possession of a government department, he may, at any time not later than six weeks after the Statement of Case was sent to him, apply to the President for the disclosure of the document or part, and, if the President considers that the document or part is likely to be relevant to any issue to be determined on the appeal, he may give a direction to the department concerned requiring its disclosure (if in the possession of the department) in such manner and upon such terms and conditions as the President may think fit:

Provided that directions given under this Rule shall not require the disclosure of –

(i)	documents in the nature of departmental minutes or reports; or
(ii)	the name of any person in the service of Her Majesty who has given a report or medical certificate relating to the appellant or to the person in respect of whose death the appeal is brought.

For the purposes of this paragraph a certificate given by an officer of the government department concerned (being an officer authorized in that behalf by the Secretary of State or Minister in charge of the department) that a document or name is such a document or name as is described in sub-paragraph (i) or sub-paragraph (ii) shall be final and conclusive.

(2)	On receipt of a direction given by the President under this Rule, the Secretary of State or Minister in charge of the government department concerned, or any person authorized by him in that behalf, may certify to the President - 

(a)	that it would be contrary to the public interest for the whole or part of the document to which the direction relates to be disclosed publicly; or

(b)	that the whole or part of the document ought not, for reasons of security, to be disclosed in any manner whatsoever;

and where a certificate is given under sub-paragraph (a), the President shall give such directions to the Tribunal as may be requisite for prohibiting or restricting the disclosure in public of the document, or part thereof, as the case may be, and where a certificate is given under sub-paragraph (b) the President shall direct the Tribunal to consider whether the appellant’s case will be prejudiced if the appeal proceeds without such disclosure, and, where the Tribunal is of opinion that the appellant would be prejudiced if the appeal were to proceed without such disclosure, it shall adjourn the hearing of the appeal until such time as the necessity for non-disclosure on the ground of security no longer exists.

(3)	At the hearing the appellant may apply to the Tribunal for the disclosure of such a document as is mentioned in this Rule, and, where it appears to the Tribunal that the document is likely to be relevant to any issue to be determined on the appeal, and that the appellant has reasonable excuse for having failed to make an application for disclosure to the President before the hearing under paragraph (1) the Tribunal may, unless the document is produced by the Secretary of State’s representative, adjourn the case for an application to the President to be made by the appellant.

(4)	It shall be a sufficient compliance with a direction given for the disclosure of a document, or part of a document, under this Rule, if there is produced a copy of the document or the part thereof certified as a true copy by an officer of the department concerned authorized in that behalf by the Secretary of State or Minister in charge of the department.

(5)	References in this Rule to a government department and to the Secretary of State or Minister in charge of a government department shall be respectively construed as including references to a department of the Government of Northern Ireland and to a Minister appointed to administer such a department.”

23.	It does appear from the document dated 5 December 2004 headed, “Response to your Statement of Case (Clothing Allowance) Rejection”, which was, it appears, posted to the Veterans Agency that the claimant had requested that this document be furnished to the tribunal and therefore  by implication to him.  I can trace no mention of this having been considered either by the President, the Deputy President or the tribunal chairman who, by virtue of Rule 2A may have had a delegated power to carry out the functions of the President under Rule 6.  While it does not appear that there was an application to the President, the Deputy President or the chairman for such document to be disclosed, the application apparently being made to the Secretary of State, the papers before the tribunal did include the said document dated 5 December 2004.  The powers under Rule 6 are not exercisable by the tribunal but it should have given consideration to this request and its course of action under Rule 6(3).  As I have now directed production of Dr H…’s report the matter is not of importance for the new tribunal.

24.	The decision of the tribunal is set aside and the matter remitted to a differently constituted tribunal for rehearing and re-determination.  The Secretary of State should clearly identify the disablement as a result of which the award was made and should include as part of the statement of case, the medical report dated 17 November 2004.  The tribunal should bear in mind the views set out above and also that it is subject to the restrictions of section 5B.  The claimant wins this appeal but should not take this as indicative of the likely substantive outcome of the case.

	(Signed):  M F Brown

	COMMISSIONER

	16 March 2007