MH v The Secretary of State for Defence

A tribunal must distinguish between an issue raised by an appeal and an issue which it chooses to introduce under its discretionary powers. Where it considers making an adverse award that was not otherwise in issue, it must consciously exercise that discretion, give reasons, identify the evidential basis, and secure procedural fairness. A short adjournment at the hearing will not ordinarily provide adequate notice of a proposed reduction.

Where an existing mobility-supplement award is reviewed adversely, the tribunal must determine the applicable statutory ground under Article 44 of the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 2006. It is insufficient merely to reconsider whether the current entitlement criteria are met.

The appellant brought two appeals from a combined decision of the First-tier Tribunal (War Pensions and Armed Forces Compensation Chamber) dated 2 March 2023. In one appeal, the First-tier Tribunal reduced an interim disablement assessment from 60% to 40% after warning the appellant at the hearing that the existing award might be at risk.

In the other, it upheld the cancellation of the appellant’s War Pensions Mobility Supplement by deciding that he did not meet the entitlement criteria in Article 20(1)(b) of the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 2006. The central issues were whether the First-tier Tribunal had lawfully introduced a lower assessment into the first appeal, and whether it had applied the statutory review grounds governing removal of an existing award in the second.

1. Both appeals were allowed. The First-tier Tribunal decisions involved material errors of law. They were set aside and remitted for fresh determination by a differently constituted First-tier Tribunal at an oral hearing.

2. On the assessment appeal, section 5 B(a) of the Pensions Appeal Tribunals Act 1943 required the tribunal first to decide whether the papers had made a lower assessment an issue in the appeal. If so, it had to determine that issue. If not, it had a judicial discretion to introduce it. The tribunal did not explain which route it had taken.

3. A tribunal exercising that discretion must do so consciously, give adequate reasons, and comply with Article 6 and natural justice. It had to identify the particular material suggesting a lower assessment and give the appellant sufficient notice and opportunity to respond. A short adjournment on the hearing day was inadequate without reasons showing that it placed the appellant in a sufficiently analogous position to one facing an advance appeal response seeking a reduced award.

4. On the mobility-supplement appeal, the relevant question was not simply whether the appellant met Article 20 entitlement conditions on 18 August 2020. Because he already held an award, an adverse review under Article 44 required satisfaction of a specified statutory ground. The First-tier Tribunal failed to identify whether it relied on ignorance or mistake, or a relevant change of circumstances.

5. Even if the decision could only have proceeded under Article 44(4)(c), the tribunal had to determine whether the appellant’s service-related degree of disablement had changed since the last assessment. It neither directed itself to that question nor addressed the appellant’s case that there had been no improvement. Its errors were material, but the Upper Tribunal made no finding on the eventual merits.

• Upper Tribunal (Administrative Appeals Chamber): Allowed both appeals in [2024] UKUT 241 (AAC), set aside the First-tier Tribunal decisions, and remitted them for fresh oral hearings before a differently constituted tribunal.
• First-tier Tribunal (War Pensions and Armed Forces Compensation Chamber): Made a combined decision dated 2 March 2023 under references ASS/241/2022 and SD/69/2021. It reduced the interim disablement assessment and dismissed the appeal against cancellation of War Pensions Mobility Supplement.