Secretary of State for Defence, R (on the application of) v Pensions Appeal Tribunal & Anor

Where legislation introduces a specific regime for late appeals, the tribunal must apply that statutory test rather than an earlier, more general reasonable-excuse test. Under the Pensions Appeal Tribunals (Late Appeals) Regulations 2001, the tribunal must consider whether the main cause of delay fell within a prescribed circumstance and whether the appeal was brought as soon as reasonably practicable. A decision applying the wrong test is unlawful and must be quashed. The matter should ordinarily be remitted for reconsideration under the correct statutory criteria.

The Secretary of State for Defence sought judicial review of a decision by the Pensions Appeal Tribunal granting Thomas Lynch an extension of time to appeal against the refusal of his war-pension entitlement claim.

Mr Lynch’s entitlement decision pre-dated the statutory changes introduced by the Child Support, Pensions and Social Security Act 2000. His appeal was made after the transitional time limit had expired. The Tribunal allowed the late appeal because it considered that the circumstances established a reasonable excuse for the whole period of delay. The issue was whether that was the correct legal test.

1. Application for judicial review allowed. The Pensions Appeal Tribunal’s decision was quashed and the matter was remitted to the Tribunal to determine Mr Lynch’s application for an extension of time according to the proper statutory test.
2. Before the amendments made by section 58 of the Child Support, Pensions and Social Security Act 2000, section 8 of the Pensions Appeal Tribunals Act 1943 imposed no time limit on an entitlement appeal because the Minister had made no relevant order. The former reasonable-excuse provision could not operate in relation to such an appeal.
3. The 2000 Act introduced a time limit for entitlement appeals. For decisions made before 9 April 2001, the transitional period expired on 9 April 2002. From 9 April 2001, late appeals were governed by the Pensions Appeal Tribunals (Late Appeals) Regulations 2001, made under section 85 of the 2000 Act.
4. Regulation 3 permitted an appeal to be brought up to twelve months after expiry of the applicable time limit only in the circumstances prescribed by regulation 4. Those circumstances included specified death or serious illness, disruption of postal services, failure to notify the claimant, or exceptional circumstances making an appeal or instruction of another person impracticable. The appeal also had to be brought as soon as reasonably practicable.
5. The Tribunal had applied the former reasonable-excuse test. That was manifestly different from the statutory test then in force and amounted to an error of law. The Tribunal should assess the prescribed circumstances and the promptness of the appeal, while giving an unrepresented applicant a fair opportunity to explain relevant facts where necessary.

The judgment itself records the decision under review:

• Pensions Appeal Tribunal: granted an extension of time, finding that the circumstances established a reasonable excuse for the whole period of delay.
• High Court (Administrative Court): quashed the Tribunal’s decision and remitted the application for reconsideration under the correct statutory test.