[2024] UKUT 78 (AAC)

I start with an observation about an unusual feature of this appeal. This is a case in which the Appellant succeeded before the PAT. As Mr Blair noted, the Appellant succeeded on both points – first, that the Tribunal had jurisdiction to hear his appeal and, secondly, that it directed the Secretary of State to conduct an anytime review. The general rule is that because an appeal only lies against a judgment or order, a successful party may not appeal in order to challenge particular findings or aspects of the court or tribunal’s reasoning (Lake v Lake [1955] P 336). At first sight the Appellant’s case does not fall within any of the recognised exceptions to that principle, unless possibly it is one of those exceptional cases that goes to jurisdiction (cf Secretary of State for Work and Pensions v Morina [2007] 1 WLR 3033). However, we are where we are. The PAT has given permission to appeal. Mr Blair for the Respondent has not taken the point that I have belatedly raised and it was not canvassed during the oral hearing. As such, it is only fair and just to consider the appeal as having been properly made.

Having done so, however, I am satisfied that the PAT’s decision does not disclose any material error of law. The Tribunal correctly identified the narrow issue raised by the appeal as being the Secretary of State’s refusal (dated 9 and 13 February 2023) to undertake an anytime review of the original decision of 7 February 2008 (reasons at [23]; see also [41]). As such, the Tribunal ruled that the scope of the MA’s duties (in 2008) and the merits of the anytime review application (in 2023) “were not matters for any detailed discussion at this hearing” (reasons at [37]). I agree with Mr Blair that the Tribunal was accordingly not concerned with how that review was to be carried out and/or its lawfulness. It was both inappropriate and premature for the PAT to have undertaken any assessment of the potential lawfulness of a review decision which had yet to be taken. Indeed, it would have been an error of law for the PAT to have proceeded in that manner. As Mr Blair put it, the prolonged procedural history of this case could not justify the PAT dealing with matters ahead of the Secretary of State – for the Tribunal to make an order directing that the review be conducted in a particular way would be to pre-empt a decision that would carry its own appeal rights.

The fundamental point is that the PAT determines appeals against particular decisions by Veterans UK, no more and no less. In the present case that was a decision refusing to conduct an anytime review. The Tribunal does not have an ongoing supervisory function in relation to the way that the Secretary of State discharges his statutory functions. The primary focus of the PAT is therefore on the particular decision under appeal, and not the individual’s case in the round. It follows that the war pensions adjudication and appeals machinery is concerned with specific decisions on entitlement and assessment, rather than on the individual veterans whose cases are the subject of those decisions. The same distinction is evident in the wider civilian benefits system. As I have explained in a social security decision (GJ v Secretary of State for Work and Pensions (PIP) [2022] UKUT 334):

The PAT in the present appeal did precisely that and its decision discloses no material error of law.