Secretary of State for Defence v The Pensions Appeal Tribunal

Section 9 of the Pensions Appeal Tribunals Act 1943 does not require every appeal-related detail to appear in the decision letter itself. Information may be supplied in a leaflet referred to and enclosed with the letter, provided it is reasonably clear.

Failure to comply with section 9 does not automatically prevent the statutory appeal period from running. The consequence depends on the proper construction of the legislation and the practical effect of the omission. The Tribunal may extend time only within the limits prescribed by section 8 and the Late Appeal Regulations. It has no power to admit an appeal after the secondary time limit has expired. Transitional time limits introduced for earlier decisions applied without individual notification of the statutory change.

The Secretary of State sought judicial review of decisions of the Pensions Appeal Tribunal in eight war-pension cases. The Tribunal had treated late appeals as admissible, principally because decision letters did not themselves specify the applicable appeal period and method, or because the Tribunal considered that transitional time limits had not been notified.

The cases concerned entitlement decisions and interim assessment decisions under the Naval, Military and Air Forces etc (Disablement and Death) Service Pensions Order 1983. The central issues were the requirements of sections 8 and 9 of the Pensions Appeal Tribunals Act 1943, the effect of non-compliance with section 9, the scope of the Late Appeal Regulations, transitional provisions introduced by the Child Support, Pensions and Social Security Act 2000, and compatibility with article 6 of the Convention.

1. General principles. The statutory time limits were strict. Section 9 required written notification of the right of appeal, the time within which, and the manner in which, notice of appeal had to be given. The information did not have to be contained in one document. A leaflet referred to and enclosed with the decision letter was sufficient. It was unnecessary to state the precise calendar date by which the appeal had to be brought.
2. Where a notification identified two possible time limits, it complied with section 9 if the claimant could reasonably ascertain which type of decision had been made and therefore which period applied. If the decision and accompanying information left that issue unclear, the omission could be addressed through the late-appeal provisions.
3. The approach to procedural non-compliance required attention to the consequences of the defect and whether Parliament intended total invalidity. Non-compliance did not automatically mean that time had never begun to run. The Tribunal could extend time after the primary period only where regulation 4 of the Late Appeal Regulations applied and the appeal was brought within the additional 12-month period. It had no power to admit an appeal after the secondary time limit.
4. The transitional provisions validly imposed a 12-month period for appeals against pre-9 April 2001 entitlement decisions. They did not require individual notification of the legislative change. A previous letter correctly stating that there was then no time limit created no legitimate expectation of future notification.
5. The statutory time limits did not impair the essence of access to a tribunal and were not shown to be disproportionate under article 6. The Tribunal’s decisions in the cases of Stratford, Hoggart, Gildea, Bullivant, Powell, Lockyer-Evis and Hudson were quashed. Hoggart’s and Bullivant’s cases were remitted for reconsideration under the correct legal approach. No useful remission was ordered in the cases where the secondary time limit had expired.

• High Court (Administrative Court) — The judicial review claims were heard after permission had been granted in some cases and directed to be considered at the substantive hearing in others. The Tribunal decisions were quashed under [2007] EWHC 1177 (Admin).