[2024] UKUT 78 (AAC)

He argues that, although he did not claim for conditions subsequently accepted as attributable to service, the Secretary of State’s Medical Adviser should have discovered these and accepted them as attributable to service from the date of his original claim in 2007.

[The Appellant] does not have any appeal rights against the refusal to carry out a review of the 7 February 2008 Decision, as the refusal is not a “claim decision”. No formal decision has been issued, therefore, the Tribunal has no jurisdiction to hear the Appeal.

Discussion and Decision

The Appellant sought an anytime review of the Decision of 7 February 2008.

He argued that at the time of his original claim in 2007, the Secretary of State’s Medical Adviser (MA) ought to have identified the conditions subsequently accepted as attributable to service, and that and these conditions ought to have been accepted from the date of his original 2007 claim.

The scope of the MA’s duties and the merits of the review application were not matters for any detailed discussion at this hearing.

The Appellant maintains that he is entitled to an anytime review under Article 44(1) of the SPO.

In emails dated 7 & 13 February 2023, the Secretary of State refused to undertake an anytime review.

The Appellant seeks to appeal that refusal.

It is that refusal that is the central issue before the Tribunal.

Article 44 (1) of the SPO states:

“Subject to the provisions of paragraphs (3), (4) and (5) and to the provisions of paragraph (8): (a) any decision accepting or rejecting a claim for pension; or (b) any assessment of the degree of disablement of a member of the armed forces; or (c) any final decision that there is no disablement or that the disablement has come to an end may be reviewed by the Secretary of State at any time on any ground.”

On the face of it, therefore, the Appellant is entitled to an anytime review under subparagraph (1)(b).

The basis of the Secretary of State’s refusal to carry out a review is that the refusal was not a formal decision and, therefore, it does not carry a right of appeal.

It is argued that the Tribunal, therefore, has no jurisdiction in the matter.

The construction of Article 44 was discussed in the case of Secretary of State for Defence v RC (WP) [2012] UKUT 229 (AAC).

A right of appeal to the Tribunal can only arise by legislation.

The Pension Appeal Tribunals Act 1943 makes provision for appeals against decisions of the Secretary of State to be brought before the Tribunal.

Section 5(1) makes provision for appeals in respect of interim assessments of disablement, as follows:

“Where, in the case of any such claim as is referred to in section one, section two or section three of this Act in respect of the disablement of any person, the Minister makes an interim assessment of the degree of the disablement, he shall notify the claimant thereof and an appeal shall lie to the appropriate tribunal from the interim assessment and from any subsequent interim assessment…”

The 1943 Act does not make any reference to appeals against decisions made on an application for review.

In the case of RC, the majority on the Upper Tribunal determined that an application for review under Article 44(1) should always lead to a review and, therefore, a decision under Article 44(6). A decision under Article 44(6) to maintain a previous decision, assessment or award is appealable. The absence of an arguable ground for revision should lead to a decision to maintain the original assessment.

It was decided that “there is always a right of appeal against a decision that there are no grounds for review and, indeed, against any decision under Article 44.”

The refusal to carry out a review in this Appeal was not, of course, that there were no grounds for review – it was a simple refusal to carry out a review.

However, in the opinion of the Tribunal, the refusal to review is, in effect, also a decision to maintain the original 2008 decision and that was accepted by Mr Ferguson in the course of the hearing.

The Tribunal clearly does have jurisdiction in this matter and the Appeal is allowed.

The Secretary of State shall carry out a review of the decision of 7 February 2008 as soon as reasonably practicable.