Rogerson, R (On the Application Of) v Secretary of State for Defence

The threshold for reviewing a Pensions Appeal Tribunal decision is low, and “relevant change of circumstances” has a wide meaning. However, a later decision under a different statutory scheme, or a later medical opinion differing from an earlier opinion, is not by itself such a change. There must be new material or an actual change in circumstances capable of justifying the difference. A later opinion may be evidence of an actual change, but the facts remain decisive. Separate pension schemes do not require one decision-maker to follow another decision. The reasonable-doubt provision applies, at most, when a review has been ordered and a fresh decision is made; in any event, it cannot assist without reliable evidence establishing reasonable doubt.

The claimant sought judicial review of the Secretary of State’s refusal to review a 2004 Pensions Appeal Tribunal decision rejecting his claim for an enhanced war disablement pension. The proposed review relied on a later award of a reserved forces pension and medical advice that his cervical spine operation was a consequence of the same 1987 whiplash injury.

Permission was initially refused by Langstaff J and HHJ Belcher, but Arden LJ granted permission on appeal. The substantive issues were whether the later award, medical opinion or any medical examination constituted a relevant change of circumstances under Article 44(3) of the Naval, Military and Air Forces Etc (Disablement and Death) Service Pensions Order 2006, whether Article 41(5) assisted the claimant, and whether the Secretary of State acted unlawfully in declining to follow or explain his departure from the later award.

1. Claim dismissed. The Secretary of State’s decision was not shown to be irrational or otherwise unlawful. The claimant had identified no more than an assertion that the decision was plainly wrong.
2. The expression “relevant change of circumstances” is wide and the threshold for review is low. Nevertheless, a review requires something capable of amounting to a genuine change in circumstances. A later decision by a different body under a different pension scheme is only a conclusion reached by reference to a different statutory framework and the material placed before that body. It cannot, by itself, constitute a relevant change.
3. A later medical opinion differing from an earlier opinion is likewise insufficient in itself. It may be evidence of an actual change of circumstances, but there must be new material justifying the change. No new evidence was identified here. The Glasgow medical adviser’s opinion therefore did not satisfy Article 44(3), whether considered alone or with the later pension award or any possible medical examination.
4. Article 41(5), which gives the claimant the benefit of reasonable doubt upon reliable evidence, did not assist. The judge’s view was that it applied when a review had been ordered and a fresh decision was being made, rather than at the threshold stage under Article 44(3). Even if that view were wrong, the claimant had produced no reliable evidence establishing reasonable doubt about a relevant change of circumstances.
5. The two pension schemes were separate and had different conditions and standards of proof. The Secretary of State was not required to follow the reserved forces pension decision, had no duty to choose between the two decisions, and was not required to give reasons for preferring the earlier tribunal decision. If a relevant change had existed, however, it would have been impermissible simply to refuse a review on the ground that the later decision was considered wrong, since that would confuse the threshold question with the substantive review.
6. The disputed 1989 X-ray was part of the factual matrix, not an antecedent fact going to jurisdiction. The Secretary of State’s view concerning it was not irrational or unlawful, and there was no evidence of a relevant change in circumstances on that issue.

The claimant was ordered to pay the defendant’s costs, subject to enforcement and detailed assessment restrictions arising from public funding. His publicly funded legal costs were to be subject to detailed assessment. Permission to appeal was refused by the judge, without preventing an application directly to the Court of Appeal.

Permission to bring the judicial review claim was refused on paper by Langstaff J and refused on oral renewal by HHJ Belcher. Arden LJ subsequently granted permission on an appeal to the Court of Appeal. The claim was then heard substantively in the High Court (Administrative Court), which dismissed it.