HH-T v Secretary of State for Defence (WP)

In an assessment appeal under the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 2006, the tribunal must determine the degree of disablement existing at the date of the decision appealed against. It must make adequate findings on whether the disablement was due to service before 6 April 2005.

An accepted entitlement to pension does not prevent a nil assessment. The statutory definition of disablement includes a past injury or damage that is presently asymptomatic. A later award under the armed-forces compensation scheme cannot be considered if entitlement to that award had not arisen by the relevant decision date.

The appellant had served in the Army both before and after 6 April 2005. He had back symptoms before that date and suffered a significant further back incident in Poland in late 2006. On discharge, the Secretary of State accepted a pre-2005 back condition for service-pension purposes but assessed it at nil. A separate decision the following day made an award under the Armed Forces Compensation Scheme.

The First-tier Tribunal increased the overall service-pension assessment for the appellant’s knees but disregarded his back. It reasoned that the later injury fell under the compensation scheme and had extinguished the earlier condition. The appellant appealed on a point of law.

The central questions were whether the tribunal had made sufficient findings about the cause of the disablement present in June 2010, and whether it could take account of the later compensation-scheme award.

1. Appeal allowed. The First-tier Tribunal’s decision involved material errors of law. It was set aside and remitted for a fresh hearing before a differently constituted tribunal.

2. The tribunal had to decide the service-pension appeal by reference to circumstances obtaining on 3 June 2010, the date of the decision under appeal. It could not take account of a subsequent circumstance: see section 5B(b) of the Pension Appeal Tribunals Act 1943.

3. The tribunal failed to make sufficient findings on the essential factual issue. It had to determine whether the back disablement present in June 2010 was due to service before 6 April 2005, including whether earlier disablement had resolved or had been extinguished by the Poland incident. Disablement, injury and the cause of an injury are analytically distinct. The tribunal’s reasons did not identify the medical and factual basis for treating all current back disablement as due to the later incident.

4. If the Armed Forces Compensation Scheme decision was made on 4 June 2010, the appellant was not then entitled to its benefit on 3 June 2010. The First-tier Tribunal was therefore required to ignore that later award. Article 40(2) of the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 2006 did not preclude consideration of the back condition at the earlier date.

5. The appeal before the First-tier Tribunal was an assessment appeal only. The Secretary of State had accepted entitlement in respect of the pre-2005 back injury, and the tribunal could not reopen that entitlement decision. However, the wide definition of disablement in Item 27 of Part II of Schedule 6 permits an injury to be accepted for entitlement while assessed at nil where it is presently asymptomatic. The fresh tribunal must assess the degree of qualifying back disablement on the evidence.

• Upper Tribunal (Administrative Appeals Chamber): Allowed the appeal, set aside the First-tier Tribunal’s decision and remitted the case for a fresh hearing.

• First-tier Tribunal: On 21 September 2011, under reference ASS/00765/2010, increased the service-pension assessment in respect of the knees but dismissed the compensation-scheme appeal and disregarded the appellant’s back condition for service-pension assessment.