RB v Secretary of State for Defence

A decision maintaining an interim disablement assessment on review may give rise to both an entitlement appeal and an assessment appeal. The tribunal must identify the issues raised by the parties and apply the statutory framework appropriate to each issue. An assessment appeal requires consideration of deterioration and comparison of the claimant’s condition at the time of the award with the condition at review under Articles 42 and 44 of the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 2006. A tribunal cannot lose jurisdiction because the respondent presents the case too narrowly or omits relevant documents. It must use its inquisitorial powers to obtain material needed to determine the appeal, particularly where the appellant is unrepresented.

The appellant challenged a decision of the Secretary of State dated 20 June 2024 concerning accepted service-related back conditions, additional symptoms, and the maintenance of a 40 per cent interim disablement assessment. The Pensions Appeal Tribunal treated the case solely as an entitlement appeal under section 1 of the Pensions Appeal Tribunals Act 1943 and dismissed it.

On appeal, the appellant argued that he had also challenged deterioration and the degree of disablement following a review. The respondent ultimately accepted that the case should be remitted for consideration of both issues. The central question was whether the Pensions Appeal Tribunal had jurisdiction, and was required, to determine the assessment appeal.

1. The appeal was allowed. The decision of the Pensions Appeal Tribunal involved a material error of law and was set aside under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007.
2. The Secretary of State’s decision of 20 June 2024 was partly a decision on review maintaining an existing 40 per cent assessment. It therefore attracted both a section 1 entitlement appeal and a section 5 assessment appeal under the Pensions Appeal Tribunals Act 1943. The appellant’s notice of appeal and submissions clearly raised deterioration and the worsening disabling impact of already accepted conditions.
3. Jurisdiction arose from the statute, the claim made, the decision under challenge and the notice of appeal. It did not depend on the respondent’s characterisation of the issues or on the provision of assessment-review documents. Section 5B required the tribunal to determine the issues raised by the parties. Where relevant material was missing, the tribunal was required to use its inquisitorial powers to obtain it, especially because the appellant was unrepresented.
4. An entitlement analysis under Article 41 of the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 2006 could not replace the assessment-review inquiry required by Articles 42 and 44. That inquiry required comparison of the appellant’s condition at the time of the award with his condition at the time of review, in order to decide whether the existing degree of disablement remained correct.
5. The error was material because the tribunal made no findings on deterioration, the degree of disablement, or sexual dysfunction at review, and misstated relevant GP evidence. The case was remitted to a freshly constituted Pensions Appeal Tribunal for an oral hearing and complete rehearing, with no findings preserved. The tribunal was not limited to the evidence or submissions before the previous tribunal.
6. As an open-justice observation, the Upper Tribunal stated that the failure of the lower tribunal to identify its judge and panel members was inconsistent with the principle reaffirmed in Tickle v BBC [2025] EWCA Civ 42. The observation had no bearing on the substantive appeal.

• Pensions Appeal Tribunal: decision dated 4 February 2025 dismissed the appellant’s case after treating it solely as an entitlement appeal.
• Upper Tribunal (Administrative Appeals Chamber): appeal allowed. The decision was set aside for material error of law and remitted to a fresh tribunal for reconsideration.