Viggers, R (on the application of) v Secretary of State for Defence

A specialist tribunal assessing disablement for an earlier period must consider a final assessment made for the immediately succeeding period where, in the absence of a significant change, it is plainly relevant to the earlier end point. The later assessment does not bind the tribunal or determine the earlier percentage. The tribunal may reach a different conclusion using its own expertise, but it must explain any material departure and reconcile the apparent discrepancy. Failure to consider that relevant assessment, or to give adequate reasons for departing from it, is an error of public law.

The appellant sought judicial review of a Pensions Appeal Tribunal decision maintaining a disablement assessment of 6–14% for 27 March 1976 to 22 May 1995. The tribunal had previously assessed him at 40% from 23 May 1995, following an assessment made in 1996 and backdated to that date.

The Administrative Court dismissed the judicial review, although recognising that the tribunal could have explained its reasoning more clearly. The issue before the Court of Appeal was whether the tribunal had properly considered the later 40% assessment and adequately explained the substantial difference between that assessment and the 6–14% assessment for the immediately preceding period.

1. Appeal allowed. The Pensions Appeal Tribunal’s decision was quashed and remitted for reconsideration.
2. The 40% assessment, made in 1996 and backdated to 23 May 1995, was plainly relevant to the assessment for the preceding period ending on 22 May 1995. In the absence of evidence of a significant change in circumstances between those dates, it could not rationally be dismissed as irrelevant. The tribunal was required to have regard to all relevant considerations.
3. The later assessment did not bind the tribunal in determining the earlier period. The tribunal remained entitled to use its own expertise, including its medical member’s expertise, and to conclude that the earlier assessment was 6–14%. It was not appropriate to adduce evidence seeking to undermine the 40% assessment, which was final under Article 42(14) of the Naval Military and Air Forces etc (Disablement and Death) Service Pensions Order 2006.
4. However, the tribunal had to explain any material departure from the 40% assessment, particularly in light of the need for consistency in administrative decision-making. The unexplained contrast between an average assessment of 6–14% over 19 years and an assessment of about 40% beginning the following day disclosed either a failure to take account of a material consideration or inadequate reasoning.
5. The court did not need to determine the appellant’s other grounds, which largely concerned evidence that the tribunal was entitled to accept or reject and to weigh as it considered appropriate.

• Court of Appeal (Civil Division) [2009] EWCA Civ 1321: allowed the appeal, quashed the Pensions Appeal Tribunal’s decision and remitted the matter for reconsideration.
• Administrative Court: HHJ Curran QC dismissed the application for judicial review of the tribunal’s decision.