IN THE UPPER TRIBUNAL	Case No.  CAF/2819/2014
ADMINISTRATIVE APPEALS CHAMBER

Before Upper Tribunal Judge Rowland

Decision:  The claimant’s appeal is allowed.  The decision of the First-tier Tribunal dated 27 November 2013 is set aside and the case is remitted to a differently-constituted panel of the First-tier Tribunal to be re-decided.

REASONS FOR DECISION

1.	This is the second appeal to the Upper Tribunal in respect of a decision made by the Secretary of State for Defence on 6 August 2009.  I appreciate that the decision in his previous case (Secretary of State for Defence v RC (WP) [2012] UKUT 229 (AAC)) was very long, but it might have been helpful had the whole decision been included in the bundle prepared by the Secretary of State so that the First-tier Tribunal understood the background better when it came to deal with the case this time.  

2.	Originally, the decision of 6 August 2009 was issued in terms of a refusal to review the existing assessment of disablement made on 15 February 2000.  On the claimant’s appeal against that decision, the First-tier Tribunal held that there was a duty to make a decision under article 44(6) of the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 2006 (SI 2006/606) whenever a proper application for review was made and it also said that a refusal to review when a proper application for review had been made should be treated as a decision under article 44(6) maintaining the original decision.  Accordingly, it treated the claimant as having made a valid appeal and directed the Secretary of State to make a response.  

3.	On the Secretary of State’s appeal to the Upper Tribunal, the Upper Tribunal did not entirely agree with the First-tier Tribunal’s analysis but it did hold that “the Secretary of State is bound to make a decision under paragraph (6) whenever a claimant applies for a review under paragraph (1)”.  Since the claimant’s application for review in this case had been made under article 44(1)(b), it held that the First-tier Tribunal had been entitled to treat the Secretary of State as having made a decision in terms of maintaining the existing assessment.  The Secretary of State’s appeal was therefore dismissed and he duly submitted to the First-tier Tribunal his response to the claimant’s appeal against the decision of 6 August 2009.

4.	In the light of the Upper Tribunal’s decision, the Secretary of State naturally put his case on the basis that he had maintained the 2000 assessment.  However, in dismissing the claimant’s appeal on 27 November 2013, the First-tier Tribunal said –

“… we are satisfied that on the evidence available in August 2009, the Secretary of State was justified in concluding that there were no grounds to review.”

As Judge Bano pointed out when granting permission to appeal, it thereby showed that it had overlooked the fact that it was concerned merely with whether an earlier assessment had been correctly maintained.  

5.	Moreover and more importantly, as the Secretary of State concedes, the question for the First-tier Tribunal was not whether the Secretary of State had made a reasonable decision, or even the right decision, on the evidence available to him in 2009 but whether he had made the right decision in the light of the evidence available to the First-tier Tribunal in 2013.  The First-tier Tribunal was not entitled to take account of circumstances not obtaining at the date of the Secretary of State’s decision (see section 5B(b) of the Pensions Appeal Tribunals Act 1943), but it was entitled to consider new evidence insofar as it was relevant to the circumstances obtaining at or before the time of the Secretary of State’s decision.

6.	Accordingly, this appeal is allowed and the case is remitted to a differently-constituted panel of the First-tier Tribunal to be re-decided.

Mark Rowland
3 February 2015