[2024] UKUT 241 (AAC)

This appeal concerned the Secretary of State’s decision to cancel the appellant’s award of a War Pensions Mobility Supplement (“WPMS”). The FTT (and the Secretary of State in his written appeal response to the FTT) did not address the exact basis under Article 44 of the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 2006 (“the SPO”) for removing the award.

In my judgement, the FTT failed properly and fully to address the nature of the statutory questions which were before it and which it had to determine under Article 44 of the SPO.

As the Secretary of State’s decision was one which was “to the detriment of a member of the armed forces” the review powers in Article 44(1)(b) and 44(6), which are the only parts of Article 44 to which the FTT referred, are expressly subject to Article 44(4) and (5). Each of the provisions in Article 44(4) and (5) set out two substantive grounds for reviewing an award to the detriment of a member of the armed services. The first is that the awarding decision was made in consequence of ignorance of, or a mistake as to, a material fact, or of a mistake as to the law. The second is that there had been a relevant change of circumstances since the award was made. The FTT failed to identify which of these review powers was being used or why it was satisfied. Moreover, on the basis of what the FTT said in paragraph 5 of its reasons, it failed in my judgement to direct itself properly that the issue before it was whether one of the conditions in either Article 44(4) or 44(5) was satisfied. Those failures amounted to an error of law: see DS v SSWP [2016] UKUT 538 (AAC); [2017] AACR 19. What the FTT said in paragraph 5 (and paragraph 37) of its reasons was:

“5….the issue for the Tribunal was whether as at the date of the decision, namely 18 August 2020, the appellant satisfied the criteria in article 20(1)(b) of the [SPO].

37.

Given the appellant’s evidence, including the appellant’s own description of his walking ability that was contained in the bundle, the Tribunal did not consider that his accepted service disablements rendered him “unable to walk”, or restricted his leg movements to such an extent that his ability to walk (with any such prothesis or artificial aid) without severe discomfort is of little or no practical use to him”, or that his ability to walk to walk was “of little or no practical use to him” due to physical pain or breathlessness (or that there was a danger to his life or a likely cause of serious deterioration in his health). In those circumstances, the Tribunal unanimously decided that the article 20 criteria had not been satisfied and therefore the Tribunal was bound to dismiss the appeal.”

Describing the relevant issue is this way would have been correct if the appeal before the FTT was from the initial decision made by the Secretary of State that the appellant was not entitled to an award of the WPMS. But that was not the decision under appeal. The appellant already had an award of the WPMS and the decision under appeal was one seeking, on review, to remove that award. In my judgment it was incumbent on the FTT to identify the ground for removal and then satisfy itself that that ground was made out.

The Secretary of State opposes the appeal and argues that “it can easily be assumed from the context that the relevant criteria is found in Article 44(4)(c) and therefore it was not necessary for the Tribunal to make explicit reference to Article 44(4)”. Article 44(4)(c) of the SPO provides that the awarding decision may be revised to the detriment of the armed services member (only) where “there has been a change in the degree of disablement due to service since the assessment was made”.

Part of that context, as the Secretary of State rightly points out, is that the Secretary of State in terms of reference for this appeal to the FTT stated:

“The appeal lies against the Secretary of State’s decision of 18/8/20 that War Pensioners Mobility Supplement (WPMS) is no longer merited” (emphasis added)

Although the Secretary of State does not take this point, it can also be said that the FTT in paragraph 5 of its reasons, having set out that the specified decision under appeal was one to cancel an award of the WPMS, identified that the issue for it was “whether as at the date of the decision, namely 18 August 2020, the appellant satisfied the criteria in article 20(1)(b) of [the SPO]”. Article 20 of the SPO contains the entitlement conditions for an award of the WPMS.

I am not persuaded by these arguments. The reasons why I consider the FTT did nevertheless err in law are threefold and are all related. They are as follows.

First, this should not be a matter of assumption. It was for the FTT to set out the correct statutory basis adequately and clearly for its decision. Article 44(1)(b) is expressly made subject to Article 44(4) and it is only the later which deals with what occurs “following a review”. As I have set out above, the issue before the FTT was whether the statutory condition for removing or cancelling the WPMS award were made out. Moreover, a key aspect of the statutory provisions in Article 44(4) (and 44(5)) is that the award may be revised to the detriment of the member of the armed services only if the Secretary of state (or on appeal the First-tier Tribunal) is satisfied that one of the specified grounds for revision is made out. This is an important and deliberate statutory protection for armed service members against having awards removed. It is not available simply where the decision maker (be that the Secretary of State or FTT) considers the award is no longer merited. It was an issue which therefore needed to be addressed, but was not.

Second, section 44(4) does not itself provide that an award may be “cancelled”. It provides a number of grounds on which the decision being reviewed may be revised to the detriment of the member of the armed forces, including (per article 44(4)(a)) where the decision was wrongly made at the time it was made. It is Article 44(6) of the SPO which speak about, inter alia, ‘cancelling’ the “decision, assessment or award”, though it also provides relevantly for the decision, assessment or award to be varied. However, the word “cancel” is ambiguous and could cover either removing the award from when it was first made or stopping it from the date of the review decision. Indeed, it seems in my judgement that ‘cancel’ is the only Article 44(6) outcome which can cover removing the award from when it was first made. To “maintain”, “continue” or “vary” the “decision, assessment or award” is not to remove the award or the assessment from the outset. In circumstances where to ‘cancel’ the assessment or award can cover either removing the award from when it was first made or removing it from the date of the review decision, it was incumbent on the FTT to show it had applied the correct statutory test.

I recognise that the FTT did identify in paragraph 5 of its reasons that it was only concerned on this particular appeal before it with a decision removing the WPMS award from date of the 18 August 2020. There is therefore force in the Secretary of State’s argument that that decision can only have been made under Article 44(4)(c), as it was not a decision removing the WPMS award from any earlier date or the date it was first awarded (albeit the terms of Article 44 may not compel this result). However, even if this is accepted, this still left the key statutory question before the FTT not whether Article 20 of the SPO was satisfied, as the FTT directed itself, but whether there had been a change in the appellant’s degree of disablement due to service since the last assessment had been made. The FTT’s self-direction in paragraph 5 of its reasons did not contain this crucial statutory test.

Third, and particularly related to the second point I have made immediately above, as the appellant sets out, an argument was made to the FTT along the lines that the appellant’s degree of disablement due to service had not changed (at least for the better) since he was initially awarded the WPMS. That in my judgement required the FTT to show it had addressed its mind to that issue and the Article 44(4)(c) question. The effect of the appellant’s argument was that if he had not changed and he did not satisfy the conditions of entitlement to the WPMS on 18 August 2020, that may have given rise to an issue on the appeal as to whether the award had been correctly made in the first place. That argument showed even more so why the FTT had to answer what it was that had changed by 18 August 2020, and it failed to do so in paragraph 37 of its reasons or more generally.