Scanlon, R (on the application of) v Pensions Appeal Tribunals & Anor

A pensions appeal tribunal must distinguish entitlement to a war pension from assessment of the degree of disablement. Once entitlement to a specified service-attributable or service-aggravated condition has been accepted, the tribunal must assess the disabling effects of that condition. It cannot reopen entitlement or reassess whether the condition was caused or aggravated by service. A nil assessment remains legally possible where an accepted condition produces no current disablement, particularly where symptoms may recur. For a progressive condition, however, a nil assessment requires cogent reasons. A tribunal may assess credibility when determining disability, but that assessment must address the accepted condition and its effects. The decision was set aside because the tribunal had treated an assessment appeal as an entitlement inquiry.

The claimant held a war pension for psychoneurosis aggravated by service and for a back injury and lumbar spondylosis accepted as attributable to service. His interim assessment had reached 40 per cent. On 16 August 2005, the Pensions Appeal Tribunal reduced it to nil per cent from 26 February 2004.

The claimant sought judicial review, alleging errors of law, procedural unfairness, breach of Article 6 and irrationality. The central issue was whether the tribunal, when assessing the degree of disablement, had lawfully reconsidered the service connection and aggravation underlying the accepted entitlements.

1. The decision was set aside. The outstanding appeal was remitted to a differently constituted Pensions Appeal Tribunal. The pre-existing position was to continue pending the consequential order.
2. The statutory scheme creates two distinct decisions: entitlement to a pension and assessment of the degree of disablement. The assessment tribunal must proceed on the basis that the relevant service-attributable or service-aggravated disablement has already been accepted.
3. A tribunal may in an appropriate case make a nil assessment while recognising continuing entitlement. This may occur where an accepted condition produces no current symptoms but creates a continuing vulnerability to future disablement. The Secretary of State’s review powers under Article 67 provide the appropriate route for reconsidering entitlement itself.
4. The tribunal had nevertheless reconsidered whether the claimant’s lumbar spondylosis was attributable to service. Its conclusion that the back problems were not shown to be due to service addressed entitlement, not the degree of disablement. That was an error of law.
5. For a progressive condition such as lumbar spondylosis, a nil assessment is virtually impossible to justify without cogent reasons showing why the accepted condition caused no disability. The tribunal’s reasoning did not identify such reasons. Its reasoning concerning psychoneurosis also failed to account adequately for the possibility that service aggravation had created a continuing vulnerability despite periods without symptoms.
6. A tribunal is entitled to form its own view of a claimant’s credibility when assessing disablement. It must, however, avoid allowing doubts about entitlement to affect the assessment. The court also noted the practical importance of clear descriptions of the circumstances underlying accepted conditions, referring to Secretary of State for Defence v Shaun Francis Rusling [2003] EWHC 1359.

• Pensions Appeal Tribunal: On 16 August 2005, reduced the claimant’s assessment to nil per cent from 26 February 2004.
• High Court (Administrative Court): Set aside the tribunal’s decision and directed that the outstanding appeal be determined by another tribunal.