Deakin v Secretary of State for Defence

A restored surviving spouse’s pension remains an award under article 23 of the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 2006; article 33 identifies the circumstances in which an earlier award may be restored. The claim requirement in article 34 is subject to article 35. Article 35(3) removes that requirement where the service member died while serving and the requisite records were delivered to the Veterans Agency. The exemption applies to a restored pension following termination of a subsequent marriage under article 33(4). Under Schedule 3, paragraph 1(10), the claim is treated as made when entitlement first arose. Administrative difficulties, financial exposure and the later amendment did not justify departing from the provision’s natural and ordinary meaning.

Mrs Hilda Deakin’s first husband, a serviceman, was killed during service in 1942. Her war widow’s pension ceased on her remarriage in 1945. After her second husband died on 30 November 2000, supervening legislation entitled her to a restored pension, but she did not know of that entitlement and first notified the Secretary of State in November 2014. The pension was awarded from that date.

The First-tier Tribunal rejected arguments based on incapacity and inadequate dissemination of information. The Upper Tribunal allowed the appeal on the separate issue, holding that no claim was required and that entitlement ran from 2000. The Secretary of State appealed. The central question was whether article 35(3) exempted a restored pension from the claim requirement in article 34.

The Court of Appeal, with Lord Justice Baker and Lady Justice Rafferty agreeing with the judgment of Lord Justice Davis, dismissed the appeal.

1. Applicable restoration route. The respondent’s case fell under article 33(4), not article 33(2): the former concerns termination of a subsequent marriage, while the latter concerns the ending of a relationship of cohabitation. Article 33(4) in effect replicates section 168(1) of the Pensions Act 1995.
2. Nature of the award and claim requirement. A restored pension remains an award under article 23 of the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 2006; article 33 confers the right to seek restoration. It therefore falls within article 34(1), including the wording covering an award following an earlier award or a period in which an award would have ceased. Article 34(1) is expressly subject to article 35.
3. Effect of article 35(3). Article 35(3) exempts a claim for an article 23 surviving spouse’s pension where the service member died while serving and the relevant medical and service records were delivered to the Veterans Agency. Those conditions were satisfied. The present-tense wording in article 35(3)(b) was neutral and did not require redelivery of the records.
4. Commencement and order. Under Schedule 3, paragraph 1(10), a claim for which no claim is required is treated as made when the conditions of entitlement first became satisfied. The respondent was therefore entitled from the day after 30 November 2000. Concerns about notice, budgeting and arrears could not displace the natural and ordinary meaning of article 35(3). The 2018 amendment could not determine the meaning of the earlier wording and was of no real interpretive value. The Upper Tribunal’s consequential direction stood, with the matter remitted to the Secretary of State to calculate the award. There was no order as to costs.

1. Court of Appeal (Civil Division): In [2019] EWCA Civ 571, the Secretary of State’s appeal was dismissed. The Upper Tribunal’s direction was left standing and the matter was remitted for calculation of the award.
2. Upper Tribunal, Administrative Appeals Chamber: On 14 September 2017, allowed Mrs Deakin’s appeal and held that no claim was required for restoration, with entitlement running from the death of her second husband.
3. First-tier Tribunal (War Pensions and Armed Forces Compensation Chamber): On 28 April 2016, rejected the incapacity argument, found that reasonable efforts had been made to disseminate the relevant information, and rejected the challenge to the original cessation of the pension. It did not determine the no-claim argument.