Secretary of State for Defence v Reid

For the purposes of paragraph 10 of Schedule 3 to the Naval, Military and Air Forces Etc. (Disablement and Death) Services Pensions Order 1983, an omission may consist of failing to take reasonable steps to inform an ex-service claimant of the war pension scheme, even where the claimant has made no prior communication or claim.

The Crown’s relationship with armed forces personnel, and the scheme’s purpose of providing for service-related injury, justify a duty to take reasonable informational steps. The duty is not legally enforceable. Mere ignorance is insufficient: the claimant must establish the relevant ignorance and show that the omission wrongly caused the delay and remained its dominant cause until the claim was made.

The Secretary of State appealed against a decision of the Pensions Appeal Tribunal for England and Wales dated 5 June 2003. The Tribunal applied paragraph 10 of Schedule 3 to the Naval, Military and Air Forces Etc. (Disablement and Death) Services Pensions Order 1983 and held that Mr Reid’s claim could be treated as having been made earlier.

Mr Reid, a former army officer living in Canada, had sustained service-related injuries during the Second World War. He claimed a war disablement pension in 1997, having previously been unaware that he could claim. The Tribunal found that the Secretary of State had failed to take reasonable steps to make war pension information available to ex-service personnel abroad. The central issue was whether that failure could constitute an omission within paragraph 10 and, if so, whether the Tribunal was entitled to find a breach.

1. The appeal was dismissed. The Tribunal had correctly treated paragraph 10 of Schedule 3 to the Naval, Military and Air Forces Etc. (Disablement and Death) Services Pensions Order 1983 as capable of applying where no previous claim or communication had been made.
2. The statutory words “act or omission” are broad. They may include a failure to take reasonable steps to inform a person who has not communicated with the authorities about making a claim. The provision is not confined to conduct occurring during the consideration of an existing claim.
3. The scheme’s purpose is to provide, in accordance with law, for persons injured in the service of the Crown. Armed forces personnel acquire a direct relationship with the Crown through service. In that context, the Secretary of State has a duty to take reasonable steps to inform ex-service personnel of the existence of the war pension scheme. The duty is reasonably incidental to the proper administration of the scheme, but is not legally enforceable.
4. The introduction of a claim as a condition precedent under article 3A, read with article 3B, supports the existence of that informational duty. The statutory scheme depends on a balance between the Crown providing information and claimants acting promptly.
5. The duty does not make every uninformed claimant eligible for backdating. Mere ignorance is insufficient. A claimant must establish the relevant ignorance, and the evidence must show that the Secretary of State’s omission wrongly caused the delay and remained its dominant cause until the claim was made. If reasonable steps were taken, ignorance alone will not establish entitlement.
6. The Tribunal was entitled to find that Mr Reid had received no relevant information, to regard his enquiries as thorough and impressive, and to conclude that there was no evidence of reasonable steps having been taken over the relevant period to inform ex-service personnel living in Canada. Its factual conclusions disclosed no error of law.

• Pensions Appeal Tribunal for England and Wales: By decision dated 5 June 2003, applied paragraph 10 of Schedule 3 and found that the Secretary of State’s omission had wrongly caused and continued to cause the delay in Mr Reid’s claim.
• High Court (Administrative Court): The Secretary of State’s appeal was dismissed.