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

A statutory appeal lies to the Pensions Appeal Tribunal only where the decision falls within the appeal rights created by the governing legislation and regulations. A decision whether the threshold for reviewing an earlier tribunal assessment has been met is distinct from the substantive decision made after a review. Where the regulations do not specify such a threshold decision as appealable, it cannot be converted into an appealable assessment merely because the same evidence may bear on both questions. The decision remains subject to judicial review for legality, fairness and rationality.

Mr Hornsby had received a war-pension assessment for noise-induced hearing loss. After a Pensions Appeal Tribunal had confirmed the assessment, he sought a further review on the ground that his hearing had deteriorated. The Secretary of State decided that no relevant change of circumstances had been shown and refused to undertake a review.

The Tribunal held that Mr Hornsby could appeal against that refusal under section 5A of the Pensions Appeal Tribunals Act 1943. The Secretary of State sought judicial review, arguing that a refusal to undertake a review was not a specified decision under the Naval, Military and Air Forces Etc (Disablement and Death) Services Pensions Order 1983 or the Pensions Appeal Tribunals (Additional Rights of Appeal) Regulations 2001. The central issue was whether the Tribunal had jurisdiction.

1. Claim allowed. The Tribunal’s decision of 27 April 2006 was wrong in law and was quashed.
2. The statutory appeal rights under sections 1 to 5 and 5A of the Pensions Appeal Tribunals Act 1943 are limited to the decisions identified by those provisions and, for section 5A, by the 2001 Regulations. Regulation 3 of the Regulations makes specified certain decisions under listed provisions of the 1983 Order, but Article 67 is not included in Schedule 1.
3. Article 67 distinguishes between the threshold decision whether a relevant change of circumstances has been shown so as to trigger a review of a tribunal assessment, and the later decision made on the review. Under article 67(2A), the former is required where the earlier assessment was made or upheld by the Tribunal. The latter may maintain, continue, vary or cancel the original assessment under article 67(5).
4. A refusal to undertake a review is therefore not a final assessment of the degree of disablement appealable under section 5 of the 1943 Act. Nor can the fact that the evidence considered at the threshold stage may overlap with evidence relevant to the substantive review make the two decisions identical.
5. The Secretary of State had decided only that the alleged deterioration did not amount to a relevant change of circumstances, because of the stated medical understanding concerning noise-induced hearing loss. That was a threshold decision, not a substantive decision maintaining the earlier assessment. The absence of an appeal right did not produce an implausible statutory result; the decision could instead be challenged by judicial review if unlawful.

The claim was a first-instance application for judicial review of the Pensions Appeal Tribunal’s decision dated 27 April 2006. The High Court quashed that decision.