[2025] UKUT 215 (AAC)

To properly frame the analysis of the above grounds, it is necessary to set out the relevant parts of the legislative scheme.

Section 2 of the Pensions Appeal Tribunals Act 1943 deals with appeals under the 1964 Scheme. It provides as follows:

“Appeals against rejection of war pension claims made in respect of mariners, pilots, etc.

2.

(1) Where any claim in respect of the disablement or death of any person made under any scheme made under section three, section four or section five of the Pensions (Navy, Army, Air Force and Mercantile Marine) Act 1939, as amended by the Pensions (Mercantile Marine) Act 1942, is rejected by the Minister on either or both of the following grounds, namely—

(a)

that the disablement or death of the said person is not directly attributable to a war injury, war risk injury or detention;

(b)

that the case is not one in which—

(i)

the said person is to be treated for the purpose of the said section three as having sustained the injury or suffered the detention by reason of his service as a mariner in a British ship; or

(ii)

the said person is to be treated for the purpose of the said section four as having sustained the injury or suffered the detention by reason of his service; or

(iii)

the injury was sustained in the circumstances specified in a scheme made under the said section five or the detention was caused by reason of his service in a ship forming part of His Majesty’s navy;

the Minister shall notify the claimant of his decision, specifying the ground or grounds of the rejection, and thereupon an appeal shall lie to the appropriate tribunal on the issue whether the claim was rightly rejected on that ground or those grounds.

(2)

Where the Minister rejects any such claim as aforesaid on one of the grounds specified in the last foregoing subsection and an appeal is brought from his decision,—

(a)

the Minister may notify the appellant before the hearing of the appeal that he also rejects the said claim on the other ground so specified, and thereupon the appropriate tribunal shall treat the appeal as an appeal on the issue whether the claim was rightly rejected on both the said grounds;

(b)

unless the Minister notifies the appellant as aforesaid, he shall not be entitled, if the appeal is allowed, subsequently to reject the said claim on the said other ground.”

The 1964 Scheme is made under the Pensions (Navy, Army, Air Force and Mercantile Marine) Act 1939, as amended by the Pensions (Mercantile Marine) Act 1942 (“the 1939 Act”).

Section 3(1) of the 1939 Act provides as follows:

“Awards to mariners in respect of war injuries and detention.

3.- (1)The Minister may, with the consent of the Treasury, make a scheme for—

(a)

applying the provisions of any Naval War Pensions Order to persons in cases where their death or disablement is directly attributable to their having sustained war injuries, or suffered detention, by reason of their service as mariners in British ships;

(b)

the payment of allowances to or for the benefit of persons who have suffered detention as aforesaid or to or for the benefit of their dependants.”

The relevant aspects of the 1964 Scheme are as follows.

Paragraph 1 and 2 of Schedule 1 to the 1964 Scheme provide, insofar as relevant, as follows:

“1.

A war injury is a physical injury—

(a)

caused by—

(i)

the discharge of any missile (including liquids and gas); or

(ii)

the use of any weapon, explosive or other noxious thing; or

(iii)

the doing of any other injurious act;

either by the enemy or in combating the enemy or in repelling an imagined attack by the enemy; or

(b)

caused by the impact on any person or property of any enemy aircraft, or any aircraft belonging to, or held by any person on behalf of or for the benefit of, Her Majesty or any allied power, or any part of, or anything dropped from, any such aircraft.

2.

A war risk injury is a physical injury sustained on or after 3rd September 1939 at sea or in any other tidal water or in the waters of any harbour and attributable to—

(a)

the taking of measures with a view to avoiding, preventing or hindering enemy action against ships, or as a precaution in anticipation of enemy action against ships, or for rescue or salvage purposes in consequence of enemy action against ships; or….

(d)

the existence on board ship of any other conditions arising out of any such war as aforesaid which would be abnormal in time of peace…”

Paragraphs 1 and 2 of Schedule 1 to the 1964 Scheme has to be read with paragraph 4(b) in the same Schedule as paragraph 4(b) sets out that:

“the expression “physical injury” includes tuberculosis and any other organic disease, and the aggravation thereof”.

Article 3(4) and (5) of the 1964 Scheme are in the following terms:

“3.(4) Where a claim under this Scheme other than one specified in the following paragraph of this Article is made, there shall be no onus on the claimant to prove that disablement or death is directly attributable to the relevant qualifying injury or detention and the benefit of any reasonable doubt on those questions shall be given to the claimant.

(5)

Where a claim under this Scheme—

(a)

in respect of disablement is made more than 7 years after the date of the relevant qualifying injury or end of detention; or

(b)

is made in respect of the death of a person, such death having occurred more than 7 years after the date of the relevant qualifying injury or end of detention;

and, upon reliable evidence, a reasonable doubt exists whether the disablement is, or the death was, directly attributable to the relevant qualifying injury or detention, the benefit of that reasonable doubt shall be given to the claimant.”

Lastly, article 17(1) extends the reach of the (naval) war pension scheme to members of the Merchant Navy (which includes the Royal Fleet Auxiliary) thus:

“Application of the Naval Order

17.-(1) Where the disablement or death of a member of the Merchant Navy is directly attributable to a qualifying injury sustained or detention suffered by reason of his service as a mariner in a British ship, the Naval Order shall apply to his case in accordance with the following provisions of this Article.”