[2024] UKUT 78 (AAC)

I hope I do both parties’ no disrespect when I say I need only summarise their respective submissions before the Upper Tribunal. I have, of course, taken all their arguments into consideration.

The principal thrust of the Appellant’s case was his submission that there was sufficient evidence on his service medical file in 2007 to support findings at the time that he suffered from other conditions in addition to the two specific conditions in respect of which he had made his original war pensions claim. The Appellant emphasised that it had been the duty of the Veterans UK Medical Adviser (MA) to look at all the conditions which he could potentially claim for on the basis of the medical evidence on file (see AL v Secretary of State for Defence (WP) [2016] UKUT 141 (AAC)). He argued, in short, that if “the MA had done his job properly in 2007 we wouldn’t have needed to have this conversation now”. As such, the Appellant contended, the Tribunal should have had regard to the wider issues. Accordingly, the PAT should have directed the Secretary of State on review to consider all the potential conditions disclosed by the available evidence in 2007, and not just the two conditions claimed for.

Mr Blair, for the Respondent, adopted a much narrower approach. Building on the Secretary of State’s written response to the appeal, he submitted that there were essentially just two issues before the PAT, namely (1) whether it had jurisdiction to hear the appeal; and (2) if it did, whether the Secretary of State was entitled to refuse to carry out a review in terms of Article 44 of the SPO. The Tribunal answered both of those questions in the Appellant’s favour and directed the Secretary of State to carry out a review of the decision of 7 February 2008 under Article 44. Having taken that step, that exhausted the appellate function of the Tribunal. Mr Blair submitted it was not within the scope of the Tribunal’s powers to make orders as to the manner of any review which ought to take place. If the Secretary of State duly carries out a review and the Appellant considers that his approach was unlawful, that is a matter which can be raised by way of fresh appeal to the Tribunal at that stage. It is not the role of the PAT to enter into the regulation or choreography of procedure before the Secretary of State.

In reply, the Appellant questioned why the Secretary of State’s consideration of the 2007 claim had ignored evidence on his service file of other medical conditions. He argued that Mr Blair’s submission was a recipe for further dithering and delay, with the inevitable result that we would be back in the Upper Tribunal in three years’ time arguing about the same issues, given the likely outcome of the Secretary of State’s review and any subsequent appeal to the PAT.