GAM v Secretary of State for Defence (No 3)

A tribunal determining an appeal against a refusal to conduct an anytime review must confine itself to that decision. It has no continuing supervisory function over the way in which the Secretary of State will conduct the review.

It is premature and inappropriate to direct the manner of a review before a review decision has been made. Any such decision carries its own appeal rights. The war-pensions adjudication system is decision-based: it determines particular decisions on entitlement and assessment, rather than an individual’s case as a whole.

The appellant sought an anytime review of a 2008 war-pensions assessment under Naval, Military and Air Forces Etc (Disablement and Death) Service Pensions Order 2006. He contended that the medical adviser should, in 2007, have identified further service-related conditions from his service medical records.

The Pensions Appeal Tribunal (Scotland) allowed his appeal against the Secretary of State’s refusal to conduct a review and directed that a review be carried out. The appellant appealed because the Tribunal did not also prescribe that the review must consider all potentially relevant conditions, rather than only those originally claimed.

The issue was whether the Tribunal erred by declining to direct the manner in which the future review should be conducted.

1. Appeal dismissed. The Pensions Appeal Tribunal made no material error of law in directing the Secretary of State to conduct an anytime review without prescribing how it must be conducted.
2. The decision under appeal before the Pensions Appeal Tribunal was the Secretary of State’s refusal to undertake a review. The scope of the medical adviser’s duties in 2008, and the merits and lawfulness of a review decision not yet made, were outside that appeal’s proper scope.
3. It would have been premature, and itself an error of law, for the Tribunal to assess the prospective lawfulness of the review or direct that it be conducted in a particular manner. Such a direction would pre-empt a future decision which would carry separate appeal rights.
4. The Tribunal’s function is to determine appeals against particular decisions of Veterans UK. It has no ongoing supervisory role over the Secretary of State’s statutory functions. The war-pensions scheme therefore operates by reference to identifiable decisions on entitlement and assessment, not the claimant’s case viewed as a whole.
5. Although the appellant had succeeded below, the Upper Tribunal considered the appeal because permission had been granted and the respondent had not raised the usual objection to a successful party appealing only against aspects of the reasoning.

• Upper Tribunal (Administrative Appeals Chamber): Appeal dismissed in [2024] UKUT 78 (AAC). The Tribunal’s decision was held to disclose no material error of law.
• Pensions Appeal Tribunal (Scotland): On 27 September 2023, in PATS/E/23/0025, allowed the appeal against the refusal to undertake an anytime review and directed the Secretary of State to carry out a review.