Secretary of State for Defence, R (on the application of) v The Pensions Appeal Tribunial

Where a new increased assessment supersedes the assessment under appeal, Rule 9(3) of the Pensions Appeal Tribunals (England and Wales) Rules 1980 requires the Tribunal to strike out the existing assessment appeal once the required notice is given. The rule applies even though the claimant has not received the maximum possible assessment and wishes to continue the old appeal. The claimant remains entitled to appeal against the new assessment. The Tribunal does not determine the correctness of either assessment in the old proceedings. An assessment may cover the period under appeal even where it is interim, closed-period, or followed by a further assessment, provided that it supersedes the earlier arrangements for that period.

The Secretary of State sought judicial review of decisions by the Pensions Appeal Tribunal refusing to strike out a number of appeals under Rule 9(3) of the Pensions Appeal Tribunals (England and Wales) Rules 1980. Each interested party had received an increased reassessment of disablement after appealing against an earlier assessment. The Tribunal considered that the reassessment did not resolve every issue, lacked supporting evidence, and did not result from an independent judicial decision.

The central issues were whether Rule 9(3) imposed a mandatory duty to strike out the existing appeal and whether the later assessment was an assessment for the period under appeal. A further issue concerned the Tribunal’s power to reopen a decision not to strike out, but that issue became academic.

1. Judicial reviews allowed. The Tribunal was required to strike out each assessment appeal in the circumstances specified by Rule 9(3). The court granted the requested declaration.
2. Rule 9(3) is a deeming provision. An increased assessment for the period under appeal is treated as a decision in favour of the appellant for Rule 9(2), so the earlier appeal must be struck out when notice is given. It is immaterial that the reassessment does not provide the maximum assessment or deal with every aspiration advanced in the appeal.
3. The rule establishes an automatic procedural consequence. The Secretary of State need not provide the Tribunal with the evidence or background material supporting the new assessment. Nor is the Tribunal required to make an independent judicial assessment before striking out.
4. The statutory scheme supports that construction. Section 5B of the Pensions Appeal Tribunals Act 1943 prevents the Tribunal from taking account of circumstances arising after the decision under appeal. Continuing the old appeal after reassessment would therefore produce an unsatisfactory result. The appellant may instead bring a fresh appeal against the new assessment, in which the Tribunal may determine the proper assessment.
5. The expression “for the period under appeal” is satisfied where the new assessment supersedes the earlier arrangements, even if it is for a closed period and a further assessment will be required later. The new assessment may continue to affect payment and forms the basis for subsequent review.
6. The question whether the Tribunal could reopen an earlier refusal to strike out was not decided. In light of the ruling on Rule 9(3), no such power was necessary in these proceedings. Permission and the same relief were granted in four cases that had not previously received permission. The Grant case was withdrawn, with no order as to costs.

The judgment concerns first-instance applications for judicial review of decisions by the Pensions Appeal Tribunal. The court allowed the applications and granted a declaration requiring the relevant appeals to be struck out under Rule 9(3), subject to the withdrawal of the Grant case.