Bunce, R (on the application of) v Pensions Appeal Tribunal & Anor

On an appeal under section 5(1) of the Pensions Appeal Tribunals Act 1943 against an interim assessment, the tribunal’s jurisdiction is confined to assessing the degree of disablement arising from disabilities already accepted as service-related.

The tribunal must proceed on that accepted basis. It cannot reopen the existence, causation, attribution or aggravation of the disabilities in order to reduce the assessment. Findings that effectively challenge the Secretary of State’s acceptance exceed jurisdiction and constitute errors of law. The assessment itself must be conducted under Article 42 of the Naval, Military and Air Forces etc (Disablement and Death) Service Pensions Order 2006.

The appellant, a former RAF national serviceman, claimed a disablement pension for injuries and disabilities said to arise from a 1951 motorcycle accident during service. The Secretary of State accepted seven medical conditions as service-related and made an interim assessment of 70 per cent.

On an appeal limited to assessment, the Pensions Appeal Tribunal reduced the assessment to 30 per cent. It did so after reconsidering whether several accepted conditions, including post-traumatic stress disorder and chronic pain personality syndrome, were caused by the accident. Owen J refused permission for judicial review on 5 March 2008. The central issue was whether the tribunal had exceeded its statutory jurisdiction.

Disposition. Aikens LJ delivered the judgment, with Wall and Laws LJJ agreeing. Permission was granted, the judicial review was allowed, and the Pensions Appeal Tribunal’s decision of 8 May 2006 was set aside. The matter was remitted to a differently constituted tribunal for a new hearing on assessment.

1. Statutory distinction. Section 1(1) of the Pensions Appeal Tribunals Act 1943 concerns appeals on entitlement, including whether an injury is attributable to relevant service or satisfies the statutory conditions. Section 5(1) creates a separate appeal from an interim assessment and permits the tribunal to increase or reduce the degree of disablement, or reduce the period of assessment.
2. Limits of an assessment appeal. Under Article 41 of the Naval, Military and Air Forces etc (Disablement and Death) Service Pensions Order 2006, the Secretary of State had accepted the relevant disabilities as service-related. The assessment appeal therefore had to proceed on that basis. Article 42 governed the assessment of degree of disablement, including comparison with a normal healthy person of the same age and sex.
3. Application of Scanlon. The court accepted Langstaff J’s analysis in Scanlon [2007] EWHC 471 (Admin): a tribunal hearing an assessment-only appeal cannot reconsider whether an accepted disability exists or whether it is attributable to, or aggravated by, service.
4. Error by the tribunal. The tribunal reconsidered the evidence concerning the accident and concluded that post-traumatic stress disorder, chronic pain personality syndrome, and neck-related conditions were not caused by the service accident. It used those conclusions to reduce the assessment. Its statement of task in paragraph 12(c) therefore misstated the statutory function and exceeded jurisdiction.
5. The court recognised that the boundary between causation and assessment may sometimes be difficult in long-standing cases. There was no such difficulty here: the tribunal’s approach directly challenged the factual basis of the Secretary of State’s acceptance. Its decision could not stand.

• Court of Appeal (Civil Division). In [2009] EWCA Civ 451, permission was granted and the judicial review was allowed. The Pensions Appeal Tribunal’s decision was set aside and the assessment issue was remitted to a different tribunal.
• High Court (Administrative Division). Owen J refused permission on 5 March 2008 and dismissed the applications concerning the tribunal’s decision. An earlier order discontinuing the claim did not prevent the substance of the challenge being considered by the Court of Appeal.