Upper Tribunal (Administrative Appeals Chamber), May 18, 2016, [2016] UKUT 248 (AAC)

Resolution Date:May 18, 2016
Issuing Organization:Upper Tribunal (Administrative Appeals Chamber)
Actores:JB v Secretary of State for Defence (AFCS) (War pensions and armed forces compensation : Armed Forces Compensation Scheme)
 
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JB v SSD (AFCS)

[2016] UKUT 0248 (AAC)

19

CAF/1647/2013 and CAF/1681/2013

Before Upper Tribunal Judge Rowland

For the Appellants: Mr Glyn Tucker of the Royal British Legion

For the Secretary of State: Ms Galina Ward of counsel, instructed by the Government Legal Department

Decisions: The claimants' appeals are unsuccessful.

In the case on file CAF/1647/2013, the First-tier Tribunal's decision dated 29 October 2012 is set aside and there is substituted a decision that -

(a) insofar as the claimant's appeal to the First-tier Tribunal was against the decision of the Secretary of State not to make an award under the tariff, the appeal is dismissed;

(b) insofar, as the claimant's appeal to the First-tier Tribunal was against the decision not to make a temporary award, the appeal is struck out because the First-tier Tribunal did not have jurisdiction to consider it.

In the case on file CAF/1681/2013, the First-tier Tribunal's decision dated 28 August 2012 is set aside and there is substituted a decision that -

(a) insofar as the claimant's appeal to the First-tier Tribunal against the decision of the Secretary of State notified on 3 May 2012 was against the decision to revise the decision dated 30 June 2010 and make an award at level 12 under item 16A of Table 9, the appeal is dismissed;

(b) the appeal to the First-tier Tribunal against the decision of the Secretary of State notified on 30 June 2010 is therefore academic and is treated as having lapsed;

(c) insofar as the claimant's appeal to the First-tier Tribunal against the decision of the Secretary of State notified on 3 May 2012 was against the decision not to make a temporary award, the appeal is dismissed because the conditions for the making of a temporary award are not all satisfied.

REASONS FOR DECISIONS

1. These cases both raise questions about the First-tier Tribunal's power to make decisions in respect of temporary awards under the Armed Forces Compensation Scheme. Permission to appeal to the Upper Tribunal was granted in both cases by the late Judge Hugh Stubbs, President of the War Pensions and Armed Forces Compensation Chamber of the First-tier Tribunal, as long ago as 18 March 2013 ``so that the Upper Tribunal can give guidance on the correct approach for the Tribunal to take when the Secretary of State refuses to make a temporary award under AFCS 2005''. The cases were stayed by the Upper Tribunal on 29 October 2013 to await the decision of a Tribunal of Pensions Appeal Commissioners in Northern Ireland on a similar issue. That decision, Secretary of State for Defence v FA (AFCS) [2015] NICom 17, was handed down on 26 May 2015 and considered the approach to be taken by the Pensions Appeal Tribunal in Northern Ireland under the 2011 Scheme. None of the parties has invited me to consider afresh the issues determined in that case, but the parties have not agreed as to the relevance of that decision or, in one of the cases before me, the effect of following it. There was therefore an oral hearing before me.

The legislation

2. Section 1(2) of the Armed Forces (Pensions and Compensation) Act 2004 enables the Secretary of State to make schemes that provide for benefits to be payable to a person by reason of an injury which is attributable to service in the armed forces or the reserve forces. The Armed Forces and Reserve Forces (Compensation Scheme) Order 2005 (SI 2005/439) (``the 2005 Order'') and the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011 (SI 2011/517) (``the 2011 Order''), which replaced the earlier Order with effect from 9 May 2011, both provide for compensation to be calculated under a tariff in which the level of the award depends on which ``descriptor'' in the relevant schedule best describes the claimant's injury.

3. Both Orders also recognise that the tariff needs to be developed in the light of experience and so they make provision for cases where the tariff does not currently include a descriptor appropriately describing the particular injury sustained by the claimant. In such a case, a temporary award may be made and, if the tariff is subsequently amended, the award is then made permanent. Article 26 of the 2011 Order provides -

``26.--(1) This article applies where the Secretary of State considers that--

(a) a person has sustained an injury of a description for which no provision is made in the tariff in force on the date--

(i) on which the claim for benefit was made; or

(ii) of an application for a review under articles 55, 56, 57 or 59;

(b) that the injury is sufficiently serious to warrant an award of injury benefit; and

(c) that injury is listed in the International Statistical Classification of Diseases and Related Health Problems or in the Diagnostic and Statistical Manual of Mental Disorders.

(2) The Secretary of State is to make a temporary award in respect of that person relating to the level of the tariff which the Secretary of State considers appropriate for that injury.

(3) The amount of the lump sum payable under a temporary award is the amount which would have been payable had a descriptor been included in the tariff at the tariff level which the Secretary of State considers appropriate for the injury.

(4) Where guaranteed income payment is payable under a temporary award, the amount payable is that which would have been payable had the descriptor been included in the tariff at the tariff level which the Secretary of State considers appropriate for the injury.

(5) The making of a temporary award does not give rise to a right to--

(a) a reconsideration of the decision under article 53; or

(b) a review of the decision under article 55, 56 or 57.

(6) Except where paragraph (7) applies, if the Secretary of State--

(a) does, within the period of 1 year starting with the date on which the temporary award is given or sent to the claimant, amend this Order by including a descriptor which describes the injury and is at the same tariff level for which the temporary award is made--

(i) a decision is to be issued making a permanent award in favour of the claimant, which takes effect on the day on which the amending Order comes into force; and

(ii) guaranteed income payment is to continue to be paid in accordance with this Order; or

(b) does not within the period of 1 year so amend this Order--

(i) a decision is to be issued refusing to make a permanent award in favour of the claimant; and

(ii) guaranteed income payment ceases to be payable under the temporary award at the end of the period but no amount of benefit paid in accordance with that award is recoverable.

(7) This paragraph applies where, after the date of a claim or application for review (referred to in paragraph (1)(a)(ii)) but before the determination of that claim or application, the Secretary of State has amended this Order, by including a descriptor in the tariff which describes the injury at the tariff level which the Secretary of State considers appropriate for that injury.

(8) Where paragraph (7) applies the Secretary of State is to make a temporary award and immediately issue a decision making the temporary award permanent.''

Article 20 of the 2005 Order was in similar terms and need not be set out in full because the differences are not material to these cases. It is sufficient to record that paragraph (1) of article 20 of the 2005 Order, as in force from 16 September 2008, provided -

``20.--(1) Where the Secretary of State considers that--

(a) a person has sustained an injury of a description for which no provision is made in the tariff in force on the date on which the claim for benefit was made; and

(b) that injury is sufficiently serious to warrant an award of injury benefit or of an additional multiple injury lump sum; and

(c) that injury is listed in the International Statistical Classification of Diseases and Related Health Problems or in the Diagnostic and Statistical Manual of Mental Disorders

he shall make a temporary award in respect of that person relating to the level of the tariff which he considers appropriate for that injury.''

4. Both Orders make provision for the determination of questions arising under them by the Secretary of State and for the reconsideration of decisions and the review of decisions. Under article 45(1) of the 2005 Order and article 53(1) of the 2011 Order, there is a power to reconsider most decisions, provided the claimant makes a request within the time allowed, and, if an appeal is lodged against a decision without the decision having first been reconsidered, the Secretary of State is required, under article 45(5) and article 53(5) or the respective Orders, to reconsider the decision before the appeal is heard. Article 53(7) of the 2011 Order precludes a further reconsideration of a decision made on reconsideration (save where the decision is to make a temporary award or interim award in which case a right to apply for reconsideration arises when the award is made final). Among the various types of review, article 49 of the 2005 Order and article 59 of the 2011 Order provide for a review on the ground of ignorance of, or a mistake as to, a material fact.

5. The transitional provisions in Part 12 of the 2011 Order broadly have the effect that outstanding decisions by the Secretary of State under the 2005 Order - i.e., where the Secretary of State was required to make a decision because a claimant has made a claim or an application for reconsideration or review (or had appealed without having previously applied for a reconsideration) before 9 May 2011 but the Secretary of State had not made a decision by that date - are to be made in accordance with the 2011 Order (see article 85) and any reconsideration or review under the 2011 Order of a decision made under the 2005 Order must also be determined in accordance with the 2011 Order (see article 86). These provisions are, however, subject to article 88, which permits certain provisions of the 2005 Order to be applied...

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