PT v The Secretary of State for Defence

Section 5B(b) of the Pensions Appeal Tribunals Act 1943 restricts the circumstances a tribunal may consider, not the date on which evidence of those circumstances was created. Evidence prepared after the decision under appeal is admissible to the extent that it relates to the claimant’s condition at the decision date. The tribunal must determine the period to which the evidence, or particular passages, relates. It must then assess relevance, reliability and weight. It is an error of law to exclude post-decision evidence solely because it was created later.

The appellant, a former Royal Marine, appealed against a First-tier Tribunal decision reducing his composite war pension disablement assessment from 70% to 40%. The First-tier Tribunal had excluded two psychiatric documents because they post-dated the Secretary of State’s assessment of 15 October 2020.

Permission to appeal was granted on the arguable issue whether that self-direction was legally erroneous. The central question was how section 5B(b) of the Pensions Appeal Tribunals Act 1943 applied to evidence created after the decision under appeal.

1. The appeal was allowed. The First-tier Tribunal’s decision involved a material error of law and was set aside under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007.

2. Under Article 42 of the Naval, Military and Air Forces (Disablement and Death) Service Pensions Order 2006, disablement is assessed by comparison with a normal healthy person and, where more than one injury is involved, by reference to their combined effect. Section 5B(b) of the Pensions Appeal Tribunals Act 1943 requires the relevant circumstances to be those obtaining when the decision under appeal was made.

3. Following the reasoning in R (DLA) 3/01, the statutory restriction concerns the time to which evidence relates, rather than the date on which it was written or given. The same approach was applicable even though the war pensions scheme did not contain the forward-looking provision found in the armed forces compensation scheme.

4. The First-tier Tribunal confused a circumstance with evidence of that circumstance. It should have considered the post-decision psychiatric letter and report to the extent that they shed light on the appellant’s condition at 15 October 2020. Passages concerning later circumstances, such as later inability to work, had to be excluded, but earlier or temporally relevant passages required assessment for relevance, reliability and weight.

5. The error was material because consideration of the admissible parts of the evidence might have produced different factual findings and a different outcome. Further facts remained to be found, so the case was remitted under section 12(2)(b)(i) to a fresh First-tier Tribunal panel, which was not bound by the earlier findings.

• Upper Tribunal (Administrative Appeals Chamber): allowed the appeal and set aside the First-tier Tribunal’s decision.
• First-tier Tribunal (WPAFCC): dismissed the appellant’s appeal and reduced the composite assessment from 70% to 40%. The decision was issued on 26 August 2022.