AL v Secretary of State for Defence (WP)

A Medical Adviser certifying entitlement under the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 2006 must consider the overall medical evidence. The Adviser is not confined to the diagnostic label used in the claim form. Where the evidence indicates a further service-related condition, it must not be ignored.

An error in medical certification amounts to official error only if, by the contemporary standards of a reasonably competent practitioner, it was a clear and obvious mistake which affected the decision. An appellate tribunal may decline to set aside a legally erroneous decision where the error could not have affected the outcome and the decision was the only rational one on the evidence.

The appellant, a former soldier, received a war pension for post-traumatic stress disorder. Schizophrenia was later accepted as attributable to service, and the assessment was ultimately increased to 100%. He sought review of the commencement date, relying in part on alleged official error in the December 2000 medical certificate.

The First-tier Tribunal dismissed the appeal. It found defects in the certificate but held that the Medical Adviser needed only to consider the condition expressly claimed. It also considered that an earlier assessment appeal prevented review of the commencement date unless the requirements of article 44(3) were met.

The central issues were the scope of the Medical Adviser’s duties, whether the defects established official error, and whether the identified legal errors required the First-tier Tribunal’s decision to be set aside.

1. Appeal dismissed. The First-tier Tribunal made errors of law, but the Upper Tribunal exercised its discretion under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007 not to set its decision aside.

2. Under articles 35(6) and 43 of the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 2006, a Medical Adviser has an active role. The Adviser must consider all conditions apparently raised by the claimed disablement and the available medical evidence, whether or not the claim form expressly identifies them. If the evidence suggests a further relevant condition requiring investigation, it must not be ignored. The First-tier Tribunal therefore erred in treating diagnosis as solely a treating clinician’s task and the Adviser as confined to the claimed condition.

3. The correct official-error inquiry was whether the December 2000 certification was clearly and obviously mistaken, judged by the standards of a reasonably competent practitioner and psychiatric knowledge at the time. Although Dr A had not considered some records and had incorrectly stated that there was no evidence of psychotic illness, the omitted material could not then have supported a diagnosis, or an enduring suspicion, of schizophrenia. The certificate was therefore not affected by official error.

4. The First-tier Tribunal also erred in treating an earlier assessment appeal as determining the commencement date of the award, and in treating article 44(3) as an impediment to the 2007 review. The earlier appeal concerned assessment only. That error did not affect the outcome because official error had not been established.

5. The decision that no official error existed was the only rational decision on the evidence. The First-tier Tribunal’s dismissal therefore survived its erroneous reasoning.

• Upper Tribunal (Administrative Appeals Chamber): dismissed the appeal and declined to set aside the First-tier Tribunal’s decision despite errors of law.
• First-tier Tribunal: dismissed the appeal on 11 November 2013, holding that the commencement dates were correct and that there was no official error.
• Upper Tribunal: on 30 January 2012, allowed an earlier appeal from the Pensions Appeal Tribunal and remitted the matter for rehearing because the earlier tribunal had failed to address whether the 2002 assessment should have been backdated.
• Pensions Appeal Tribunal: dismissed the appeal on 27 March 2009.