[2006] UKSSCSC CAF_1294_2006 (08 December 2006)

DECISION OF THE PENSIONS APPEAL COMMISSIONER

1.The claimant's appeal to the Commissioner is allowed. The decision of the Manchester pensions appeal tribunal dated 17 January 2006 is erroneous in point of law, for the reason given below, and I set it aside. The case is referred to a differently constituted pensions appeal tribunal for determination in accordance with the directions given in paragraph 16 below (Pensions Appeal Tribunals Act 1943, as amended, section 6A(4)(b)).

2.In this case, the representative of the Secretary of State for Defence supported the claimant's appeal to the Commissioner, to the extent of agreeing that the pensions appeal tribunal (PAT) of 17 January 2006 had erred in law and submitting that the case should be sent back to a new PAT for rehearing. In the light of that support, I can give a relatively short decision.

3.The case arose under Article 42A of the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 1983 on funeral expenses, as it was at the date of claim in September 2004. Payments of reasonable funeral expenses for someone who had been a member of the armed forces could be made, subject to some other rules, where one of the conditions in Article 42A(2) was met:

"(2) The conditions specified in this paragraph are--
 (a)the death of the member was due to service;
 (b)the death of the member occurred whilst, in respect of the disablement which gives rise to an award under this Order, he was receiving in-patient treatment in a hospital or similar institution, under the National Health Service Act 1977, the National Health Service (Scotland) Act 1978, the National Health Service and Community Care Act 1990, any corresponding enactment having effect in Northern Ireland, or in a hospital or similar institution maintained or administered by the Defence Council."

3.The claimant's husband (who I shall call Mr T) was born on 2 February 1916. He served in the Dorset Regiment from 15 August 1934 to 22 October 1942, including periods in India and Malta. He died on 9 September 2004, while he was an in-patient at the Royal Alexandra Hospital, Rhyl. At the date of his death he had two conditions accepted as attributable to service, attracting a combined assessment of disablement of 70%. Those were cysticerosis and basal cell carcinoma of the body, leg and shoulder. The first condition, which I understand to be a tropical tapeworm larva infection that has a range of neurological effects, was first diagnosed as epilepsy and rejected as a constitutional condition not connected with service, although it had led to his discharge. In 1946 it was accepted that the condition underlying the claimant's symptoms was in fact cysticerosis and attributability was awarded. The basal cell carcinoma was not claimed until shortly before Mr T's death.

4.I do not need here to go into the progress of Mr T's health, but briefly note the problems through 2004, so far as they appear from the records in the Statement of Case. In the early part of 2004 he had two sessions in Glan Clwyd Hospital to excise some superficial basal cell carcinomas. In May 2004 he was seen in the Urology Department on referral from his GP because of problems passing water. In June 2004 he had an operation for resection of a bladder tumour, circumcision and cystoscopy. Afterwards he had problems with an indwelling catheter. The biopsy of the prostate had revealed a cancer and a fistula was suspected. Hormone treatment was started for the prostate cancer and Mr T was discharged home, I think on about 2 July 2004. However, on 14 July 2004 he was admitted to the hospital again, with a chest infection, thought to be pneumonia (which he had had in 2003). He was discharged home on 20 July 2004 once symptomatically improved. There is in the Statement of Case a long list of his medication on discharge (see page 89 and also the top of page 88), including sodium valporate (epilim), I think to be taken once a day. That is as far as the hospital and GP records in the Statement of Case go. However, as appears from the claimant's letter dated 20 August 2004 (pages 90 to 91), Mr T was re-admitted to Glan Clwyd Hospital with a recurrence of his chest infection and it was then planned to transfer him to the Royal Alexandra Hospital to try to get his strength back. That is confirmed in the post mortem report where it is said that Mr T was transferred to that hospital on 31 August 2004 with "possible pneumonia, bowel problem (not fit for surgery), IHD, clostridium difficile + bladder infection, condition deteriorated and passed away". The report gives little clue (at least to me) as to the reasons for that process. The death was found to have been natural, I think meaning to exclude a causative effect from the conditions accepted as attributable to service, and the cause of death was certified as ischaemic heart disease, prostatic carcinoma and inflammatory entero vesical fistula.

5.The claimant made a claim for a widow's pension and for funeral expenses. Both claims were disallowed on 24 November 2004 and she appealed against both decisions. The PAT of 17 January 2006 disallowed the appeal against the decision on widow's pension (under the reference ENT/00703/2005), concluding that Mr T's death was not due to or substantially hastened by any condition attributable to or aggravated by service. I have refused the claimant leave to appeal to the Commissioner against that decision (under the reference CAF/1199/2006). I explained my reasons for doing so then and say no more about that case here.

6.So far as the claim for funeral expenses was concerned, the Secretary of State's reasons for decision (pages 132 and 133) referred only to Article 42A(2)(a) (although the whole of the Article was set out in an appendix at pages 147 and 147A). The reasons were that, as Mr T's death was unrelated to the disablement giving rise to an award of war pension, there was no entitlement to a payment for funeral expenses.

7.The claimant attended the hearing on 17 January 2006 with her representative, Mr Porter of the Royal British Legion (RBL). I do not have the chairman's record of proceedings in the papers before me, so I am not sure how much discussion there was of the funeral expenses case separately from the widow's pension case. In its statement of reasons the PAT said that the representatives of the parties had agreed that there were no separate issues. The funeral expenses appeal was disallowed for the same reasons as the widow's pension appeal was disallowed.

8.The claimant now appeals against the PAT's decision with my leave. When granting leave to appeal, I said that I found no arguable error of law in the PAT's conclusion that Mr T's death was not due to service, but drew attention to the alternative condition of entitlement in Article 42A(2)(b) and the failure of the Secretary of State, the RBL or the PAT to consider that condition. I continued:

"No case-notes had been obtained from the hospital to which [Mr T] had been transferred some 10 days before he died. The brief summary in the post mortem report at page 111 of the statement of case suggests that the reason that he had to be in hospital was not either of the disablements accepted as due to service, the cysticerosis or the basal cell carcinoma of the body, leg and shoulder. However, the test in Article 42A(2)(b) is whether the person is receiving treatment in respect of an accepted disablement while an in-patient. I note that in the discharge summary dated 27 July 2004 (pages 88 and 89), [Mr T's] medication on discharge included epilim (sodium valporate), which was presumably related to the effects of the cysticerosis, as may have been some other medication that I do not recognise. If he was being administered epilim or any other medication linked to either of his accepted conditions while in hospital as an in-patient from 31 August 2004 to his death on 9 September 2004, could it be argued that the test in Article 42A(2)(b) was met? I consider that the case is sufficiently arguable that it is also arguable that the PAT went wrong in law in failing to consider the alternative condition of entitlement, even though the point was not specifically raised by either party to the appeal."

9.As noted above, the representative of the Secretary of State supported the appeal in the observations dated 26 September 2006. It was submitted that the PAT had erred in law for the reason suggested above and that Veterans Agency procedure had not been correctly carried out in the consideration of the claim and the appeal, so that there should be a reference to a new PAT for a rehearing. The observations included the following:

"4. Article 42A(2)(b) states that a grant can be paid where the person is in hospital because he requires in-patient treatment for an accepted disablement and dies while in hospital, regardless of the cause of death. This retains an element of a causal link between Service and the death. If a person does die in hospital from an accepted disablement while receiving in-patient treatment for an unconnected condition, then Article 42A(2)(a) - death due to Service - will apply.

 5. As to the Commissioner's question of whether continuing medication for an accepted disablement, when a person is in hospital for another condition, constitutes `in-patient treatment' for the accepted disablement, it is the Secretary of State's view that it does not. The treatment is not dependent on the person being an in-patient and would take place regardless of location."

10.In the observations in reply dated 16 October 2006, Mr Derrick of the RBL simply said that he was content for the case to be remitted to a new PAT for rehearing.

11.In those circumstances, I now conclude that the PAT did err in law in the way suggested when I granted leave to appeal. It seems to me that, whenever a service member has died in hospital or in a similar institution (and thankfully I do not have to grapple here with the interpretation of those terms) and a claim for funeral expenses is made, there should at least be consideration of Article 42A(2)(b) of the Service Pensions Order (now Article 32 of the 2006 Order), if there is not already entitlement under Article 42A(2)(a). Sometimes the consideration can be very short, but the proper evidence must be there if at all possible. In the present case, that would at the least include the hospital case-notes for the period covering the date of death.

12.Before going on to refer the case to a new PAT I must comment on paragraphs 4 and 5 of the Secretary of State's submission of 26 September 2006. In my judgment the first two sentences of paragraph 4 are unsound. The words of Article 42A(2)(b) plainly do not impose a condition that the reason, or even a reason, for the person's presence in hospital as an in-patient is a need for treatment for an accepted disablement. Nor need there be any causal link between the death and the person's service. The condition of entitlement simply requires that the person's death occurs during a period in which ("whilst") he was receiving in-patient treatment in respect of an accepted disablement. That treatment does not have to been one of the reasons for admission. It is enough that the treatment happens and is not obviously over and done with when the person dies. That follows from the ordinary meaning of "whilst" in its context. And it plainly could not have been intended that the condition of entitlement would only be satisfied when the death occurred in the very course of the application of some specific medical procedure for the accepted disablement. That would involve a level of detailed investigation that could not have been intended, as well as the giving an artificially narrow meaning to "treatment" (see below). And the cause of death could be entirely unrelated to service or to the treatment being received (one could think of a gas explosion in the hospital or assault by a fellow-patient) without the scope of Article 42A(2)(b) being exceeded.

13.On paragraph 5 of the Secretary of State's submission, I do not wish to endorse the suggested rule that treatment that would take place regardless of location does not count, nor indeed a rule that it must count. The term "in-patient treatment" fundamentally uses ordinary English words, so that it is for the fact-finding authority, ie the PAT, to decide whether any particular circumstances fall within the scope of in-patient treatment. But there are a few general points that can be made.

14.The first is that I am satisfied that the term refers to treatment received while a person has the status of an in-patient in hospital rather than to treatment of a kind that can only be given to in-patients or is only typically given to in-patients. The term "in-patient treatment" is capable of both meanings, but the one that I prefer seems the more natural one, there being nothing particular in the context to point to the narrower meaning that would require the investigation of complicated and technical evidence. And the history of Article 42A suggests that the broader meaning was intended. On its introduction in April 1997, Article 42A(2)(b) referred to "receiving free in-patient treatment within the meaning of regulation 2(2) of the Social Security (Hospital In-Patients) Regulations 1975". At the time that regulation provided that a person was to be regarded as receiving free in-patient treatment:

"for any period for which he is or has been maintained free of charge while undergoing medical or other treatment as an in-patient [in a hospital or similar institution, under various legislative provisions]."

One part of that test was thus that the person was undergoing medical or other treatment "as an in-patient" and it was established (Commissioner's decision R(I) 27/59) that that meant while having the status of in-patient. The form of Article 42A(2)(b) to be applied in the present case was introduced by amendment with effect from 9 April 2001 (Naval, Military and Air Force Etc (Disablement and Death) Service Pensions Amendment Order 2001 (SI 2001/409)). I cannot think that, merely by moving from a condition linked to the Hospital In-Patients Regulations to an independent condition, the Amendment Order was intended to make a change in the nature of the treatments that would trigger an entitlement to a payment for funeral expenses.

15.The second point is that there is authority in the social security context that the phrase "medical or other treatment" is a wide one and that in the context the fact that a person is an in-patient in hospital is strong prima facie evidence that he is undergoing medical or other treatment (Commissioner's decision R(P) 1/67). Things cannot be quite so easy under Article 42A(2)(b), as it is necessary to ask whether a person is receiving treatment "in relation to" an accepted disablement. But the broad meaning suggested in the much-cited case of Minister of Health v General Committee of the Royal Midland Counties Home for Incurables at Leamington Spa [1954] 1 Ch 530 is of value. For instance there (page 541) Evershed MR said, about the meaning of "treatment" in the definition of hospital in section 79(1) of the National Health Service Act 1946 (the precursor of section 128 of the 1977 Act), that it:

"includes not only medical treatment ..., in the sense that the patient or subject is looked after and attended to by a doctor, but also nursing in the sense that the subject or patient is looked after and attended to by persons professionally trained to look after and attend to the sick."

That approach was followed by the Commissioner in decision R(IS) 7/92, where it was held that a mentally ill resident in a mental nursing home, looked after and attended to by nurses trained in psychiatry, was undergoing treatment, and by the Tribunal of Commissioners in decision R(DLA) 2/06. There, in paragraph 64, and by additional reference to Chief Adjudication Officer v White, R(IS) 18/94, and to Botchett v Chief Adjudication Officer, R(IS) 10/96, it was accepted that a person who has severe learning difficulties and is consequently receiving nursing care is undergoing medical or other treatment. Although the factual and legal contexts of those cases may be different, a comparison with the general approach in a related field could be helpful in Article 42A (now Article 32) cases. I do not wish to go any further than that in the present case. I am not to be taken as laying down any rule about the meaning of "treatment" that takes away from judgment to be exercised by PATs under paragraph 13 above.

16.The claimant's appeal against the Secretary of State's decision of 21 December 2004 is referred to a differently constituted PAT for determination in accordance with the following directions. There must be a complete rehearing by the new PAT, which will not be bound by any findings made or conclusions expressed by the PAT of 17 January 2006 in relation to the funeral expenses case. Before the rehearing the Veterans Agency on behalf of the Secretary of State will need to make efforts to obtain hospital case-notes from the Royal Alexandra Hospital covering the period from 31 August 2004 to 9 September 2004 and from Glan Clwyd Hospital covering the period of Mr T's admission in August 2004, as well as any other evidence considered necessary. A supplementary Statement of Case will need to be prepared dealing with the relevance and effect of that and the existing evidence and dealing specifically with the application of Article 42A(2)(b) on the approach I have set out above, not on the approach in paragraphs 4 and 5 of the submission of 26 September 2006. The claimant and the RBL will then have the opportunity after seeing the supplementary Statement of Case to put forward additional evidence in advance of the rehearing, as well as oral evidence on that occasion. The new PAT is to apply the approach to Article 42A of the 1983 Service Pensions Order set out in paragraphs 12 to 15 above. The evaluation of all the evidence will be entirely a matter for the judgment of the members of the new PAT. The decision on the facts in this case is still open.

(Signed)           J Mesher    
Commissioner

Date:  8 December 2006