IN THE UPPER TRIBUNAL	Case No.  CAF/474/2010
ADMINISTRATIVE APPEALS CHAMBER

Before 	A Lloyd-Davies Judge of the Upper Tribunal

DECISION

The decision of the tribunal held on 27 October 2009 involved the making of an error of law.  I set that decision aside.  I give the decision which the tribunal ought to have given, namely, that the veteran’s appeal was disallowed and that the decision of the Secretary of State made on 3 March 2009 was confirmed.

REASONS

1.	The veteran, a man born in 1934, served in the Royal Artillery from 1952 until 1975.  He first applied for war pension in 1984 for disablement arising from noise-induced hearing loss.  Following the results of an audiogram the veteran was assessed as having disablement of 6–14% due to bilateral noise-induced sensorineural hearing loss with effect from 5 August 1984.  In 1986 the veteran applied for a review of his assessment due to pain in his back consequent upon a road traffic accident which had occurred whilst he was in service.  He was assessed at 6–14% in respect of this injury and his degree of disablement was assessed, by way of a composite assessment, cumulatively at 20% with effect from 4 December 1986.  He applied for a review by a review request treated as received on 21 January 2009: this review was requested on the grounds that his hearing loss had become worse.    A decision maker decided that the assessment could not be reviewed and confirmed the composite assessment of 20% as an “interim long term assessment”.  (According to internal, but publicly available,  guidance given to departmental  medical advisers such an assessment is used when worsening is not expected for a considerable time: the assessment does not have an end date).

2.	  The veteran appealed; initially he sought to withdraw his appeal but then stated that he wished to continue.  The tribunal (which the veteran attended, accompanied by his wife, but at which the veteran was unrepresented) found that the veteran’s deterioration in hearing was not service-related and upheld the interim assessment made by the Secretary of State but decided that it should only subsist for the period from 21 January 2009 until 26 October 2011 (the day before the second anniversary of the hearing).  The claimant appealed.  His principal grounds of appeal were that there was no other reason for his hearing loss to have deteriorated than the fact of his exposure to noise during his period of service.  I granted leave to appeal, not on the grounds put forward by the veteran, but on the grounds that it was arguable the tribunal did not sufficiently explain to the veteran (1) that it had power to substitute a time-limited award or (2) why it substituted such a time-limited award.  The veteran requested an oral hearing, which request I granted.  The AAC Office referred the veteran to the representation service that FRU provides, and the veteran took the opportunity of using this service.  At the oral hearing  the veteran was represented by Mr Clifford of Counsel (instructed pro bono by Miss Baldwin of FRU) and the Secretary of State was represented by Miss Ward of Counsel (instructed by Mr Rossiter of the Treasury Solicitor’s Department).   I am grateful to Mr Clifford and Miss Ward for their submissions, both written and oral, and to Mr Rossiter for arranging to supply after the hearing certain documentation of which I requested sight.  

3.	One of the reasons why I granted leave to appeal was that I was concerned that by substituting a time-limited award (which would mean that the veteran would automatically be re-assessed at the end of the time-limitation) the claimant might be caught by Article 42(4) of the Service Pensions Order 2006 (“the 2006 Order”) which provides that noise-induced sensorineural hearing loss should not be taken into account in determining a veteran’s total degree of disablement if the degree of disablement in respect of that loss alone was less than 20% (a provision originally introduced as an amendment to the Naval, Military and Air Forces etc (Disablement & Death) Service Pensions Order 1983 for claims made after January 1993).  Mr Clifford, however, satisfied me that the transitional provisions contained in Article 71 of the 2006 Order meant that the veteran’s award could not be re-assessed to his disadvantage only by virtue of the introduction of Article 42(4) of the 2006 Order.

4.	Mr Clifford, however, pointed out that the veteran might suffer a different prejudice if there was an automatic review at the end of his time-limited award.  The point arises as follows.  Until January 1993 assessments (such as that made in 1985 on the veteran in this case) were based on the whole hearing loss present at the date of claim, however long this was after service: in the view of the Secretary of State, however, this was unreasonable in the light of the medical knowledge (apparently available since 1981) that hearing loss due to noise did not deteriorate after removal from that noise.  Although practice was brought into line with current medical understanding from October 1996, the failure to reflect medical understanding which had been available since 1981 meant that there were awards in payment for noise-induced sensorineural hearing loss,, which, if reviewed, would require special action to determine the true level of assessment.  There was a ministerial decision that there would be no attempt specifically to seek out these cases for review but that they would be considered when they otherwise presented themselves for review.  Two ministerial commitments were given, one of which is relevant to the present case, namely that no pensioner already in receipt of an award would suffer reduction in pension or have that pension taken away following the correction of the erroneous decision.  (That commitment is evidenced by two written ministerial parliamentary answers, copies of which were produced after the hearing by the Secretary of State and which are to be found at pages 106 and 110 of the case papers). In submissions  I was referred to Article 44(7) of the 2006 Order which empowers the Secretary of State, in any cases he sees fit, to continue any award based on a revised decision “at a rate not exceeding that which may from time to time be appropriate to the assessment of the degree of disablement existing immediately before the date of decision”: it was submitted that the ministerial commitment referred to above was given effect by the exercise of the power conferred by Article 44(7).  

5.	Notwithstanding the above, Mr Clifford identified the potential prejudice to the veteran that arose from the tribunal’s decision to impose an end date as follows.

	(a)	Prior to the tribunal’s decision the veteran’s assessment was very unlikely to be reviewed unless the veteran himself applied for review:  under the terms of the tribunal’s award the assessment would automatically be reviewed after 28 October 2011.

	(b)	On any such review the veteran was dependant on the Secretary of State continuing the policy referred to above and not reducing the veteran’s assessment.

	(c)	If the Secretary of State’s policy was ever to be reversed in the future and the assessment of the veteran’s hearing loss was reduced below 16-14%, the veteran’s composite assessment could potentially be reduced to below 20% and, if that were to happen, the veteran would lose his current pension.

Mr Clifford therefore submitted that there was potential prejudice to the claimant by virtue of the tribunal’s decision and that its decision could not be described as necessarily beneficial to the veteran.  I return to this topic after I consider whether or not the tribunal erred in law.

6.	It is clear, from the terms of the tribunal’s notes of proceeding and its statement of reasons for its decision, that the tribunal did not either inform the veteran of its power to substitute a time-limited award or that it was intending to exercise any such power in the manner that it did.  Indeed the tribunal did not identify the power under which it made its time-limited award.  

7.	Section 5(1) of the Pensions Appeal Tribunals Act 1943 permits a tribunal on an appeal to reduce the period for which an interim assessment is in force.  In my judgment, however, if a tribunal is going to exercise this power it must first explain to the appellant that it is contemplating doing so (and, if appropriate, give the appellant the opportunity to withdraw his or her appeal) and, in the event of it exercising its power to reduce the term of an assessment, to explain why it has done so.  The tribunal failed to do any of this and, accordingly, in my judgment it fell into error of law.  (It would seem likely, although this is a matter of inference and not necessary to my decision, that the tribunal did not consider section 5(1) at all.  Section 5(2) provides that in the case of a final assessment a tribunal on an appeal may substitute an interim assessment “to be in force until such date not later than 2 years after the making of the [tribunal’s] assessment”.  The tribunal’s substituted interim assessment 	was until the day before the second anniversary of the date of the hearing, which strongly suggests that the power it purported to exercise was under section 5(2): in fact it had no such power since it was considering an interim, rather than a final, assessment).

8.	The question next arises as to what remedy, if any, the veteran is entitled to by virtue of the tribunal having made a decision which involved the making of an error of law.  Miss Ward initially submitted on behalf of the Secretary of State that although it was accepted the tribunal had made a procedural error, this did not justify the setting aside of the tribunal’s decision.  Mr Clifford, on behalf of the veteran, indicated that, if I was minded to set the decision of the tribunal aside, he did not wish me to remit the case to a further tribunal but to substitute a decision reinstating the original decision made on behalf of the Secretary of State, namely the decision awarding the claimant an interim long term assessment of 20%.   He did not wish the veteran to run the risk which he had identified and to which I have referred in paragraph 5 above.  It is not for me to decide whether Mr Clifford’s perception of the prejudice that his client might suffer is justified or is no more than a chimaera, since this is a future question.  It does, however, seem to me that the veteran is entitled to be put back in the position that he was in prior to the tribunal’s erroneous decision.  I did not understand that Miss Ward, on behalf of the Secretary of State, had any real objection to this course.  I accordingly set the decision of the tribunal aside and give the decision which the tribunal should have given namely that the veteran’s appeal was disallowed and the decision of the Secretary of State made on 3 March 2009 was confirmed.

9.	There is one matter on which I should make observations.  There is at least one other case before the Upper Tribunal where the First-tier Tribunal has, without warning, substituted a time-limited decision for a long-term interim assessment.  As I have indicated above, the First-tier Tribunal has power under Section 5(1) of the 1943 Act to do so.  That power, however, must be exercised judicially.  It is possible that a view has gained currency in the First-tier Tribunal that an “interim” assessment for the purposes of the war pensions scheme is to be treated as analogous to a “provisional” assessment under the industrial injuries disablement benefit scheme.  Under the latter scheme it is clear from the wording of the legislation (see paragraph 6(2) of Schedule 6 to the Social Security Contributions and Benefits Act 1992) that a provisional assessment has to be made for a specified, time-limited, period.  There is no such specific provision in the war pensions scheme.  The practice, if it exists, of automatically, and without express justification, substituting a time-limited assessment for a long term interim assessment cannot in my judgment be supported.

			(Signed)

				A Lloyd-Davies
				Judge of the Upper Tribunal

			(Date)	27 May 2011