[2006] UKSSCSC CAF_2803_2005 (06 June 2006)

CAF/2803/2005

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	My decision is that whilst there may have been an error of law in the decision of the Pensions Appeal Tribunal (the tribunal) given on 26 May 2005 under Registration No. SD/00283/2004, that did not affect the outcome of the case and accordingly as the appellant’s appeal cannot succeed, I dismiss it.

2.	At the request of the appellant, I directed an oral hearing.  This took place on 28 March 2006 in London and was noted as the first oral hearing of an appeal to a Pensions Appeal Commissioner under the appeal provisions introduced by the Armed Forces (Pensions and Compensation) Act 2004.  I am grateful to both Mr Jonathan Pennington Legh and Mr Steven Kovatz for their written submissions and observations prior to the hearing and their oral submissions at the hearing itself.  

3.	The appellant is a man born on 17 May 1936 who was called up for national service in the Army.  He served from 28 April 1955 to 13 August 1955, when he was discharged from service on medical grounds, on the basis that he was suffering from Psychopathic Personality Types I and II.  Although the appellant has stated that he contacted the War Pensions Agency, (as it then was), in 1984, no evidence confirming this has been found but it is accepted that on 14 September 1993 the appellant wrote to the War Pensions Agency referring to his discharge on medical grounds and that he had been told he “should have received an Army pension of some kind”.  He then completed a claim form for a War Disablement Pension on 24 September 1993 and was examined by a War Disablement Pension Medical Board on 5 September 1995.  With effect from 14 September 1993 his disabilities were assessed at 30% on the basis that in addition to the aggravation of his Personality Disorder, he was found to have Intermittent Explosive Disorder which was attributable to his time in service.  The combined assessment was subsequently increased to 50% by a tribunal held on 29 October 2003.  

4.	When he completed the claim form in 1993, the appellant made no mention of any deafness.  The report of the Medical Board carried out in 1993 after completion of the claim form, listed four “Other problems”, one of which was that the appellant said he was hard of hearing and had been prescribed a deaf aid but was “too vain to wear it”.  His bilateral hearing loss was recorded as “moderate” (page 54).  There was no suggestion either from the appellant or the medical practitioner that this was either attributable to, or aggravated by, service.  I note that in the psychiatric report prepared in 1994, (pages 59 to 61) no mention was made of difficulty in the appellant’s hearing, although hospital case notes record an entry for 7 May 1993 of “Long standing deafness. R better ear.2/52 – pain and fullness R ear. Deafness R side ++” (page 65)  

5.	On 15 October 2001, the appellant wrote again to the War Pensions Agency, seeking his war records, and concluding his letter:

	“I also want to know why my hearing was not taken into account when the award was made.”(page 64A)

This was treated as a claim for hearing loss and the tribunal of 29 October 2003 then assessed the appellant as having a 50% non‑noise induced sensorineural hearing loss, attributable to service, giving him a total assessment of 100%, from 22 October 2001.  The appellant appealed on the ground that both his pensions should be backdated to his discharge from service in 1955.  

6.	At page 42 of the file papers, the Secretary of State commented on the appeal to the tribunal:  

	“….The Service Medical Documents for [the appellant] were sent to us in 1955 and entitlement to War Pension was considered.  Unfortunately the documents pertaining to this period are no longer available.  According to [the appellant] his invaliding from service was in respect of Psychosis and therefore post invaliding consideration by the War Pensions Agency would have been in respect of that condition with there being no reason prior to the date of 22/10/2001 to consider the claimed Hearing Loss conditions.  [The appellant] has advised us that he has neither claimed or received any War Pension prior to his first claim to pension in 1993.  We can only conclude from this that an award of War Pension was rejected in 1955.  In those days rejections were not notified where there had been no representation made by the man.  However legislation which existed at that time provided that a claim shall be made within six months of invaliding in order that pension be made to the day following termination of service, even though consideration was normally made without such a claim.  [The appellant’s] first contact with the Agency in respect of a claim was 14/09/1993 therefore for the reasons set out at page 35-37 [which contained extracts from the Order referred to below] of the Statement of Case the Secretary of State remained satisfied that awards of War Pension have been made from appropriate dates.”

7.	A tribunal hearing on 11 February 2005 was adjourned to enable the Veterans Agency (which succeeded the War Pensions Agency as having responsibility in this area) to file and serve a full statement of case in relation to the appellant’s appeal for hearing loss and for matters in connection with the commencement date of the pension for his personality disorder.  Although it was directed that both appeals should be heard at the same time, in the event the tribunal hearing in connection with the appellant’s hearing loss was listed separately and it is that appeal only with which I am concerned. 

8.	The tribunal in connection with the appellant’s hearing loss was then held on 26 May 2005.  The appellant was represented then, as he has been throughout, by Mr Pennington Legh.  The appellant’s submission was that, as he was discharged from the armed forces on medical grounds, he fell within Article 3(B)(2)(a) and (b) of the Naval Military and Air Forces etc (Disablement and Death) Service Pensions Order 1983/883 (as amended) (the Order) in respect of his hearing loss.  The appellant submitted that as a consequence, a claim was not required in his case because his hearing loss related to service.  Article 3(B)(2) provides:

“3B (1)     A claim for the pensions, allowances and supplements mentioned in the following paragraphs of this article shall not be required if the conditions set out in that paragraph are satisfied.

(2)	A claim for retired pay or a disablement pension under article 10 is not required to be made by the former member of the armed forces if

(a)	 he is discharged from the armed forces on medical grounds; and
(b)	the Secretary of State for defence has delivered to the Secretary of State copies of the member’s medical and service records.”

This was notwithstanding that the date of his medical discharge was prior to the date Article 3(B) came into effect, 20 December 1996, as Article 72(6) of the Order provides that any relevant provision of the Order shall apply to any case where the disablement was due to service before the Order came into operation.

9.	The tribunal stated in its clear and detailed reasons for its decision (page 173):

“9(a)	The date of the claim

	  The basic conditions of awards under the Order are set out in Article 3 of the Order.  Article 3A sets out the condition precedent to the making of any award of pensions that the person making the claim shall have completed and signed the requisite form and delivered it as specified in the Article.  Article 3A is subject to Article 3B (cases where claims are not required).  We find as a matter of construction that Article 3B is therefore the exception to the general condition precedent set out in Article 3A.  

		The Appellant submits to us that: (i)	he was discharged from the Armed Forces on medical grounds for Psychopathic Personality – Types I and II and copies of his medical and service records were delivered by the Secretary of State for Defence to the Secretary of State (neither of which are disputed by the Agency and are duly accepted by us), and accordingly argues that the provisions of Article 3B(2)(a) and (b) of the Order are satisfied in his case; and (ii)	such Article applies in his case notwithstanding the date of his medical discharge prior to Article 3B(2) coming into effect by virtue of the provisions of Article 72[(6)] of the Order.  It is therefore submitted by the Appellant to us that a claim is not required in his case for his hearing loss disablement related to service.  We find that as a matter of interpretation it is appropriate to construe the provisions of Article 3B in the statutory context of the Scheme as a whole and with appropriate consideration to its purpose.  As indicated above, we find that the “deemed claim” provisions of Article 3B(2) are an exception to the general condition precedent for making a claim set out in Article 3A.  We accept the Agency’s statement at the hearing that those provisions are applied in practice solely in relation to the medical condition (and medical conditions relating to it) for which the former Member of the Armed Forces was discharged.  Whilst we note that Article 3(B)(2) does not expressly provide this, we find that such qualification is implicit.  To find otherwise would place former Members of the Armed Medical Forces discharged on medical grounds at a significant advantage in relation to claims for benefits under the Scheme / unrelated to their grounds of discharge, than those Members who left service for other reasons … [two alternative examples were then given].”
	
9(b)	Schedule 3 of the Order. Paragraph 5

	“Based on the psychiatric reports from 1994 onwards referred to in our findings above and the Appellant’s statement at paragraph 31 of his statement of 14.05.03, we determined that the Appellant was incapable of making a claim for hearing loss, or of instructing someone to act on his behalf in relation to this, until the moment the claim was actually made, effective from 22 10. 2001.  We find that such incapacity arose from the combined effects of the Appellant’s general memory impairment and diminished concentration and his prior mental difficulty in accessing the memories of service relevant to associating those events with the hearing loss experienced by him, until being visited by Combat Stress and [he] had seen Dr.[] and talking with solicitors with the result that “memories had returned”.  We find that but for such disability the Appellant would have made a claim in relation to his hearing loss prior to 22.10.01 and that the later of the date when such claim would have been made but for the fact of such disability and the date 3 years before the actual date of claim is, [sic] namely 23.10.98.”

10.	The appellant appealed with leave of the President of the Pensions Appeal Tribunals (England and Wales).  The grounds of appeal submitted by the appellant’s solicitors were, in summary: 

a) 	that the tribunal erred in law in its construction of Article 3B(2)(a) and (b) of the Order in finding that the provisions of the Article should be applied solely in relation to the medical condition (and medical conditions relating to it) for which the member of the armed services was discharged and in its finding that this latter finding was implicit in Article 3(B)(2), so that the tribunal’s construction of Articles 3B(2)(a) and (b) of the Order was wrong in law. Article 3(B)(2) does not refer to the cause of the medical discharge, but only to conditions being present;

b) 	the construction on behalf of the appellant did make practical and logical sense, because the claim is only made when the conditions of entitlement are present.  In the appellant’s case that was at the date of discharge; 

	(c)	that the appellant had suffered two injuries arising from the same incidents in the Army, which incidents led to his discharge.  It cannot be fair to the appellant that simply because one was not diagnosed by doctors at the time of discharge, which may have been due to their own incompetence, that he be denied a pension in respect of that injury; and 

	(d)	the appellant had been awarded a pension in respect of the condition which was not present on his discharge form (namely Explosive Personality Disorder) so that it could not be argued that the mere absence of hearing loss on the discharge form was sufficient or important in the proper construction of the provisions of the Order or in the application of those provisions to his case.  

11.	In his written response on behalf of the Veterans Agency Mr Kovats observed the point of law at issue to be essentially whether a serviceman who is medically discharged for disablement X is required to make a claim in order to be eligible for a pension for disablement Y.  He drew to my attention that when Articles 3A and 3B were introduced by the Naval, Military and Air Forces etc (Disablement and Death) Service Pensions Amendment (No.3) Order 1996 (SI 1996/2882), the Explanatory Note stated that it amended the Order “so as to make clear which pensions, allowances and supplements are required to be claimed expressly”.  The Explanatory Note was an admissible aid to construction, in his submission.  Prior to that amendment, which came into force on 20 December 1996, Article 3 of the Order had simply read:

	“Under this Order awards may be made where the disablement or death of a member of the Armed Forces is due to service.”

In 1955, at the time of the appellant’s discharge from the Army, the relevant provision was Article 3 of the 1949 Royal Warrant (CMND 7699) which provided:

	“Under this Our Warrant awards may be made where the disablement or death of a member of the military forces is due to service.”

12.	Mr Kovatz also pointed out:

	“10.	Although, prior to 20 December 1996, there was no explicit requirement to make a claim in order to obtain an award, a former serviceman needed to make a claim in order to come within Articles 4 and 5 of the [Order] …and its predecessors.  It was, and is, the practice of the Secretary of State and his statutory predecessors (the Minister of Pensions from 1953 to 1966, then the Minister of Social Security, then the Secretary of State for Social Services, then the Secretary of State for Social Security, then from 3 December 2001 to the Secretary of State for Defence: Transfer of Functions (War Pensions etc.) Order SI 2001/3506: Halsbury’s Laws of England Vol 2 (2003 re‑issue paragraph 265 n.6) where a member of the armed forces is discharged on medical grounds, to consider on his own initiative whether that person should be awarded a disablement pension for the condition in respect of which he was discharged …”

On his submission, the appellant’s literal reading of Article 3(B)(2)(a) of the Order that a claim is not required to be made - in any circumstances subsequently - by a former member of the armed forces if he has been discharged from the armed forces on medical grounds is wrong.  First, as a matter of logic, a medical discharge on ground X would expressly state that the serviceman suffered from disability X.  There was good reason not to require him to make a claim for a pension for disablement X.  This provided no reason to exempt him from making a claim for disablement Y.  

13.	Secondly, the requirement in Article 3B(2)(b) that the serviceman’s medical and service records be delivered to the Secretary of State links the reason for medical discharge with the exemption from the requirement to make a claim.  The ground of medical discharge would be apparent from the medical and service records.  Other disablements would not necessarily be apparent from these documents.  

14.	Thirdly, Article 3B(6) (which provides that no separate claim form is required in respect of any other disablement which appears upon an examination conducted by a medical practitioner before the determination of a claim for a pension made under Article 10) showed that each separate disablement must be the subject of a distinct claim, subject to the proviso in that paragraph.  Lastly, Mr Kovatz supported the tribunal’s view that the appellant’s construction would give an unwarranted advantage to medically discharged servicemen.

15.	Essentially, the points made in the written submissions were expanded at the oral hearing.  According to Mr Pennington Legh’s submission for the appellant, the very provision of Article 3B was an advantage so that Parliament must have intended to benefit a party who was medically discharged.  What was to be considered was that there had been incompetent record taking on the part of the medical staff.  This had been supported by a medical report from a consultant audiological physician and audioneurologist (pages 97 to 100).

16.	Although in his written observations, Mr Kovatz produced a statement from an employee of the Veterans Agency as to previous practice prior to the implementation of the 1996 Order, that employee had been unable to confirm whether such practice was in operation in 1955 and Mr Pennington Legh asked that it should therefore be treated with caution.  He emphasised his written submission that there were various other possibilities which had not been considered - such as if the medical discharge stated incorrectly that a serviceman was suffering from disability X and he was discharged for disability X but in fact was suffering from disability Z.  Alternatively, the discharge might state that the serviceman was suffering from disability X (whether rightly or wrongly) but fail in error to state that he was also suffering from disability Y.  If there were two or more disablements resulting from service, it was more than merely possible that only one of these disablements was referred to on the medical records. 

17.	In his submission there was, however, no suggestion in Article 3B(2) that delivery of the service records should be “linked to” the reason for medical discharge.  Whilst some disablements might not necessarily be apparent, some would be.  There was a similar requirement that medical and service records be delivered to the Secretary of State when a claim was made for a widow or widower’s pension in respect of a member of the armed forces who died while serving.  The delivery of the records was simply part of the trigger to begin the process of consideration of the discharged service member’s entitlement to a pension.  

18.	As noted in paragraph 6 above the appellant’s records were delivered to the Secretary of State at Norcross in 1955 following his discharge, and this is confirmed by paragraph 4 of witness statement by the employee of the Veterans Agency (page 271) (the witness statement).  There is no reason to treat the witness statement on this aspect with caution.  This is the basis of the appellant’s case, and was accepted by the tribunal (see paragraph 9 above).  The papers in this case, and others to which Article 3B(2) apply, are sent so that the service authorities may consider whether a service member who is being discharged from the armed forces on medical grounds might be entitled to a war pension.  The delivery of the member’s medical and service records, also required under Article 3(B)(2) forms the basis for consideration, and it may be described as a “notional claim” form, but initiated by the service authorities rather than by a claimant himself.  If it is to be treated as a “notional claim”, then it will be treated on the same basis as an actual claim in establishing that all the criteria exist before an award can be made.  

19.	Although, unfortunately but understandably, the papers no longer exist, it may be assumed that a decision was made in the appellant’s case, but that it was an unfavourable decision which did not award the appellant a pension.  We are told by the Secretary of State (paragraph 6 above) that the practice at that time was not to issue any formal decision if the serviceman had not made an actual claim.  That in itself would not affect the fact that a decision was made and the disposal of the “notional claim” under paragraph 3(B)(2), and on that basis, the subsequent claims made by the appellant in 1993 and 2001 would be new claims.  The commencement dates for the awards made in respect of them would be taken as being the dates of claim under Schedule 3 to the Order, subject to the tribunal’s findings set out above in respect of the claim made in 2001.  It is true that the Secretary of State’s evidence was more categoric at the stage of the submission to the tribunal than is the witness statement produced later, but in neither case is there any suggestion no decision was made, and I see no reason for treating that aspect with caution.

20.	If that were the case, then there would have been an error of law by the tribunal in not considering this point, and indeed it was not raised at the hearing before me, but the outcome would not have been different, the decision would be the same.  Even if I were wrong in concluding that the appellant’s “notional claim” under paragraph 3(B) was disposed of in 1955, leaving the matter entirely as raised before the tribunal, I also conclude that the tribunal’s reasoning on those points is correct.  In most circumstances, under Article 3A a claim is required before entitlement to an award can be established.  As Mr Kovatz submitted, although, prior to 20 December 1996, there was no explicit requirement to make a claim in order to obtain an award, a former serviceman needed to make a claim in order to come within Articles 4 and 5 of the Order and its predecessors.  The exception to this is when a claimant is discharged from the services for medical reasons, as set out in Article 3B(2)(a) and subject of the further provision in Article 3(2)(b) that “the Secretary of State for Defence has delivered to the Secretary of State copies of the member’s medical and service records” (or as the current legislation now provides “delivered to the Veterans’Agency”).  I can see no reason for those two provisos to have been included together in paragraph 3(B)(2) if they were not intended to be linked.  The details in the medical and service records together form the basis of what would otherwise be formalised by a claim – the “notional claim” referred to above.  

21.	Further, as noted by Mr Pennington Legh, under Article 3B(3) no claim form is required either in respect of a widow’s pension where a member of the armed forces has died whilst serving, provided there has been delivery of medical and service records.  This is consistent with the logic of Article 3B(2) and also with that of Article 3(B)(6) which provides that where a claim has been made, no separate claim shall be required in respect of any other disablement which appears upon an examination conducted by a medical practitioner before the determination of the claim, to have been attributable to or aggravated by service.  It is logical in al cases that the member’s medical and service records should be delivered to assist in the consideration of entitlement to a pension, as it is not simply the extent of disablement, (or death in the case of Article 3B(3)) which is to be considered, but whether, for instance, it is attributable to, or aggravated by, service.  

22.	I reject Mr Pennington Legh’s submission at the hearing that what is to be considered is that there had been incompetent record taking.  As trenchantly put by Mr Kovatz, the issue was whether a serviceman discharged on ground X is required to make a claim for disablement Y.  As indicated in paragraph 19 above, if we proceed on the basis that the “notional claim” arising under Article 3B would be disposed of by a decision at the time, it would be necessary to make a further claim in respect of any condition for which entitlement became an issue.  

23.	Further, as, in my judgement, there is nothing in the legislation which excludes the need for such a claim – the tribunal found that Article 3(B) is an exception to the general requirement for completion of a claim, which I accept– any member discharged on ground X who asserts he also has disablement Y would also need to make a claim in respect of disablement Y, (should that not be included in any award made following the medical examination on discharge).  Point d) of the grounds of appeal indicates that the appellant was awarded a pension in respect of a condition which was not present on his discharge form (Explosive Personality Disorder) – but apparently overlooks that this was awarded after the submission of his claim in 1993.  The evidence that the Veterans Agency and its predecessors have always proceeded on the basis that an award was considered only in respect of the condition or conditions related to the grounds of discharge is not of course conclusive, but is consistent with the construction of Article 3B(2) as I see it.

24.	I can see no indication that Parliament intended the legislation in the 1996 Order to give an overall and enduring benefit to the service person discharged on medical grounds.  The same circumstances might well be experienced by several service people at the same time.  Medical conditions might not develop subsequently in any or all of them or at the same time, or the extent of their disablement might vary.  In the meantime, one or more might have been medically discharged for different reasons.  There is no indication in the legislation that it was intended that by virtue of a medical discharge on ground X, the service person should then have the benefit of being “passported” thereafter under Article 3(B) in respect of any further disability which might subsequently manifest itself, without the need to make a separate claim.  

25.	Even had I interpreted the legislation in favour of the appellant, he would still have been left with the need to establish that he satisfied the criteria for the award of a pension.  An injury or the aggravation of an injury must be attributable to service before an award can be made, but the extent of the resulting disablement must also be of such severity that a claimant can establish entitlement to an award.  The assertion on behalf of the appellant in paragraph b) of the grounds of appeal that the conditions of entitlement were present in the appellant on the date of discharge would not be so simply established as is indicated there; there is no automatic entitlement even where a service member is medically discharged.  The conditions referred to at the beginning of Article 3B(1) is not a reference to a medical conditions but to the conditions set out in the Article which must be satisfied.

26.	If the appellant were to consider that the 1955 decision was made wrongly, for instance as the result of an inadequate medical examination at the time of his discharge, as submitted on his behalf by Mr Pennington Legh, in theory, the decision could be reviewed for ignorance of fact under Article 67(2), and if it were shown that the decision arose from an “official error” there could be full backdating under Schedule 3 paragraph 1(6A) of the Order.  However, I do accept that in view of the fact that the records are no longer in existence, the practicality of proceeding via this route would be doubtful.  

27.	At the end of the hearing I made a few brief enquiries of the claimant, in case I concluded the tribunal had erred in law, on which basis I might have been able to make further findings of fact without referring the matter to a new tribunal.  As it happens, this is not necessary.  

28.	Although there may have been an error of law by the tribunal, the appellant’s appeal cannot succeed and it is therefore dismissed. My decision is given in paragraph 1. 

					(Signed on the Original)	E A Jupp
									Commissioner

									6 June 2006