Secretary of State for Defence v President of the Pension Appeal Tribunals (England & Wales)

A statutory tribunal has no general power to set aside or reopen a decision once made, unless that power is expressly conferred by legislation or rules. A procedural power to mitigate non-compliance ends when the tribunal reaches its decision. Any power to set aside a concluded decision must also comply with natural justice, including giving affected parties a reasonable opportunity to make representations. Where the stated procedural irregularity did not occur, or the real defect was the tribunal’s failure to address a material argument, the purported setting aside is unlawful.

The Secretary of State sought judicial review of the President of the Pensions Appeal Tribunals’ decision to set aside a tribunal’s dismissal of David Jones’s appeal against refusal of a clothing allowance under Article 17 of the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 1983.

The President relied on Rule 37 of the Pensions Appeal Tribunals (England and Wales) Rules 1980, considering that the Secretary of State’s Statement of Case had not met the appellant’s case concerning the link between his asthma treatment and soiling of clothing. The issues were whether Rule 37 conferred power to set aside a concluded appeal decision, whether natural justice required representations, and whether an irregularity justified the exercise of any such power.

1. The claim succeeded. The 1943 Act and the PAT Rules did not confer on the President any general power to set aside a decision after the tribunal had made it. A decision was made, at the latest, when the chairman signed the Form of Decision, it was certified and copies were sent to the parties, since it then became conclusive evidence under Rule 19(4).
2. The statutory scheme provided only defined routes for revisiting a concluded decision: section 6(2A) of the Pensions Appeal Tribunals Act 1943, where the appellant and Minister jointly applied because additional evidence had become available or the tribunal decision was erroneous in law, and Rules 20 and 21 where an appeal had been determined in the appellant’s absence. Rule 37 concerned mitigation of non-compliance with the Rules and its temporal limit was the point at which the tribunal reached its decision. The principle in Akewushola v Secretary of State for the Home Department [2000] 1 WLR 2295 supported that conclusion, as did Secretary of State for the Home Department v Immigration Appeal Tribunal [2001] QB 1224.
3. Even if a power existed, natural justice would require an affected party to have a reasonable opportunity to make representations before a concluded decision was set aside and the appeal remitted. The President had acted unilaterally.
4. The asserted Rule 5 irregularity was not established. The Secretary of State had addressed the alleged causal link in his further reasons, and the issue was before the tribunal. The tribunal’s actual deficiency was that it failed to appreciate and address Mr Jones’s principal argument. That did not justify the President’s purported action under Rule 37; the decision was also irrational on the stated basis.
5. The President had no power to set aside the tribunal decision, or alternatively had acted in breach of natural justice and for an irrational reason. The matter was remitted to the PAT for directions concerning Mr Jones’s application for leave to appeal to the High Court.

This was a first-instance judicial review claim in the Administrative Court. The judgment does not state a prior appellate decision.