CAF/1416/2006

DECISION OF THE PENSIONS APPEAL COMMISSIONER
  
1.	I allow the claimant’s appeal.  I set aside the decision of the Newport Pensions Appeal Tribunal dated 20 December 2005 and I refer the case to a differently constituted Pensions Appeal Tribunal for determination.

REASONS

2.	The claimant served in the Royal Navy from 1956 to 1965, being discharged as an able seaman upon completion of his engagement.  On a form dated 7 January 2004 and received by the Veterans Agency on 12 January 2004, he claimed a disablement pension under the Naval, Military and Air Forces (Disablement and Death) Service Pensions Order 1983 (S.I. 1983/883) in respect of a skin condition and problems with his left knee.  The Secretary of State accepted that the claimant was suffering from eczema and osteoarthritis in his left knee but found neither condition to be attributable to, or aggravated by, service.  The claimant appealed to the Pensions Appeal Tribunal.  The tribunal’s reasoning was terse –

“7.	…  The Appellant served in the Royal Navy from 1956 to 1965.  He described an incident on a ship’s deck when he was showered with a soot-like substance whilst he was sunbathing.  Since then he had markings on his skin which he sees as causation of his subsequent skin problems.  There was intermittent referral to doctors over the subsequent years but as far as the appellant is concerned he had daily skin problems.

“8.	There is an authoritative Specialist Opinion at page 43 dated 1/2/04 which states ‘He has had constitutional eczema for the last 40 years …’.  This view would be consistent with accepted medical practice.

“9.	Arthritis  The Appellant has had Osteoarthritis Left Knee but also widespread skeletal symptoms affecting almost all major joints.  It is evidentially impossible to attribute causation to any particular joint in the absence of trauma involving the joint itself.”

3.	The claimant applied to the chairman for leave to appeal, producing several documents showing that he had been seen to have a “slight confluent roseolar rash [on his] chest and arms” on examination on 10 August 1965, shortly before his discharge from the Royal Navy, with the comment “? sensitivity to nylon shirt” and that there had been references to “?fungus”, “contact eczema”, “allergic rash”, “urticaria” and so on in his medical notes in 1966 and then over many years from 1982.  The chairman granted leave to appeal but said –

“No error of law is noted but new evidence is possibly material.

“N.B. This may be an appropriate case for Set Aside on the basis of new evidence otherwise the Appellant could proceed to appeal.”

4.	It seems to me to be inappropriate for a chairman to grant leave to appeal unless there is some point of law that he considers to be at least arguable.  It may be unsatisfactory that the Secretary of State appears to have no power to review a decision of a Pensions Appeal Tribunal on the ground of mistake or ignorance of fact (in contrast to the position in ordinary social security cases) and at the same time the Lord Chancellor has not exercised his powers to make rules under paragraph 5(3A)(b)(i) of the Schedule to the Pensions Appeal Tribunals Act 1943 so that a Pensions Appeal Tribunal can itself set aside one of its decisions in the light of new evidence.  However, a Commissioner cannot set aside a tribunal’s decision either unless it is erroneous in point of law.

5.	As it happens, I am satisfied that, as the Secretary of State concedes, the decision of the Pensions Appeal tribunal in this case is erroneous in point of law because the tribunal’s reasoning is inadequate.  The claimant’s case was clearly that his skin condition should be found to be attributable to, or aggravated by, service because he started suffering from the condition the day after being covered in “soot” when H.M.S. Ausonia, in which he was returning to England from Malta in about 1964, “blew smoke” while he was sunbathing on the upper deck.  Apart from prickly heat, he said he had not previously had any remotely similar condition.  He also said that he had had problems with his knee since serving in the Royal Navy.  The claimant’s general practitioner said that the first reference to his skin condition in his medical notes (which ran from 1949) was in 1987 and this was a factor in the opinion of the Veteran Agency Medical Services in which it was said that “this time interval is far too long for naval factors to have played any part in the progress of [the claimant’s] ‘Eczema’”.  Similarly, the opinion in respect of the knee condition relied on the general practitioner having said that osteoarthritis had first become manifest in 1980 and that “this time interval is far too long for naval factors to have played any part in the progress of [the claimant’s] ‘Osteoarthritis Left Knee’”.  The claimant said that he had his discharge medical form referring to his skin condition but he did not produce a copy.  Although the tribunal’s decision records that the claimant did not attend the hearing and positively asserts that the claimant “said that he did not wish to be present”, that is contradicted by the claimant’s subsequent account of what happened at the hearing.  If document 74A represents a record of the proceedings by one of the members of the tribunal, it looks as though the claimant at least referred to the report of the examination on 10 August 1965 during the course of the hearing because the language of the report appears in the note.  Whether or not that is right, it is plain that the temporal relationship between the claimant’s naval service and the development of his conditions was in issue and was a key part of the claimant’s case.  The tribunal relied upon the consultant’s report but has not commented on the fact that the 40 years to which the consultant referred would have put the date of development of the skin condition at the very date claimed by the claimant.

6.	The tribunal erred because the reasons for its decision do not provide an answer to the most important point in the claimant’s case in relation to both his conditions.  The chairman has recorded neither a finding as to whether the development of each of the claimant’s conditions was contemporaneous with his naval service nor a finding as to the relevance of any such temporal link.  It is not even clear whether the tribunal accepted the claimant’s account of being covered in “soot”, which the Veterans Agency had described as “this unrecorded incident”.

7.	This case must therefore be considered by another Pensions Appeal Tribunal, who will be able to take account of the new evidence suggesting a much clearer temporal link between the claimant’s naval service and his skin condition.  If the Veterans Agency does not accept that the claimant has now proved his case in respect of the skin condition, it might consider obtaining the view of the Royal Navy as to whether the event described by the claimant is a recognisable phenomenon.  The claimant has suggested that it might have been partly due to the accumulation of material in the ship’s funnel because H.M.S. Ausonia had been a depot ship in Malta for some time and so had vary rarely put to sea.  (I believe she had seen grander days as a Cunard liner (launched in 1921) before being requisitioned in 1939 for service as an armed merchant cruiser and, later in the War, being converted to a repair ship and purchased outright.)  More importantly, it might be useful to obtain a view as to the likely content of the “soot” which may have some bearing on the likelihood of it having contributed to the claimant’s skin condition.  Again, the claimant suggests that, if there was an accumulation, that might have had some impact on the content of the material discharged from the funnel.  

	(signed on the original)	MARK ROWLAND
		Commissioner
		21 July 2006