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

Time limits for appeals are ordinarily procedural. A tribunal dealing with a late appeal must apply the statutory scheme governing extensions of time and has no residual discretion to override it on general grounds of fairness. Under the Pensions Appeal Tribunals (Late Appeals) Regulations 2001, the prescribed circumstances must first be established, including that the relevant circumstance was the main cause of delay and that the appeal was brought as soon as reasonably practicable. Only then does a discretion arise. A decision based on irrelevant considerations or an erroneous understanding of the statutory scheme is unlawful. The tribunal must give sufficient reasons identifying the prescribed circumstance or circumstances relied upon and explaining the exercise of discretion.

The Secretary of State sought judicial review of a decision by the Pensions Appeal Tribunal allowing Thomas Lynch to pursue a late appeal against the rejection of his war disability pension claim. The claim had been rejected in 1992, when no effective time limit applied to this type of appeal. Legislative changes introduced a time limit for historic claims, with a further scheme for late appeals.

The Tribunal first allowed the late appeal using a reasonable-excuse test. Newman J quashed that decision and remitted the matter. On reconsideration, the Tribunal again allowed the appeal, relying on its interpretation of the statutory changes, general fairness, and the circumstances in which Mr Lynch learned of the new time limit. The central issue was whether that approach complied with the statutory late-appeal scheme.

1. Claim allowed. The Tribunal’s decision of 8 March 2004 was quashed and the matter was remitted for a fresh hearing.
2. The relevant statutory framework was contained in section 8 of the Pensions Appeal Tribunals Act 1943, as amended by section 58 of the Child Support, Pensions and Social Security Act 2000, together with regulations 3 and 4 of the Pensions Appeal Tribunals (Late Appeals) Regulations 2001. The amendments introduced a time limit for entitlement appeals, including a transitional limit for decisions made before commencement.
3. Regulation 3 permitted a late appeal only in the circumstances prescribed by regulation 4 and subject to the long-stop period. Regulation 4 required one of the specified circumstances to be established, that circumstance to have been the main cause of non-compliance, and the appeal to have been brought as soon as reasonably practicable.
4. The Tribunal had approached the matter unlawfully. It treated the legislative changes as substantially repealing the previous position, treated the former absence of a time limit as a substantive benefit, and relied on general concepts of fairness and other irrelevant legal considerations. Parliament had itself specified the relevant fairness criteria in the Regulations. Article 6 of the European Convention on Human Rights did not create a residual power to disapply the statutory scheme.
5. Ignorance of the new time limit could be a material consideration, but it was for the Tribunal to decide whether it amounted to an exceptional circumstance within regulation 4 and whether it was the main cause of the delay. The material before the Tribunal did not show that the wife’s illness had been relied on as the relevant prescribed circumstance.
6. The fresh decision should explain which prescribed circumstance or circumstances were accepted and why the discretion to admit the late appeal was exercised. The Tribunal could seek further material from Mr Lynch, although its admission and weight remained matters for it.

1. High Court (Administrative Court): the claim for judicial review succeeded. The Pensions Appeal Tribunal’s decision was quashed and the late-appeal issue was remitted for a fresh hearing.
2. Earlier High Court judicial review: Newman J had previously quashed the Tribunal’s first decision and remitted the matter for reconsideration. No citation for that decision was stated in the judgment.