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Neutral Citation Number:
Reported Number:	R(AF)1/07
File Number:	CAF 3326 2005
Appellant:
Respondent:
Judge/Commissioner:	Judge J. Mesher
Date Of Decision:	03/10/2006
Date Added:	08/11/2006
Main Category:	War pensions and armed forces compensation
Main Subcategory:	Procedure
Secondary Category:	Commissioners' procedure and practice
Secondary Subcategory:	precedence of decisions
Notes:	War disablement pension – structure of the scheme – distinction between entitlement appeals and assessment appeals – burden of proof – precedential status of decisions of nominated judges The claimant claimed that his assessment for war disablement pension should take account of new conditions rotator cuff syndrome and degeneration of his hip joints, which he submitted were consequential on conditions which had been accepted by a previous tribunal as attributable to service. The Secretary of State issued decisions that the conditions rotator cuff syndrome left shoulder and soft tissue injury low back (post-service) were not attributable to or aggravated by service and refused to increase the existing assessment of disablement on review. On appeal the tribunal found that the claimant’s “post service back injuries, if any, were not due to service factors” and did not mention his hips. The Secretary of State issued a subsequent decision in relation to hip problems, diagnosed as right trochanteric bursitis, which was the subject of a further appeal, pending at the time of the Commissioner’s decision. In his appeal to the Commissioner, the claimant argued that the tribunal had erred in failing to explain why it did not deal with the claim in relation to hip problems. The appeal also raised issues as to whether an appeal against a decision on attributability of a condition consequential on an accepted decision was an entitlement decision (against which an appeal lies to a Pensions Appeal Commissioner) or an assessment decision (against which there is no appeal). The Commissioner also set out the status in appeals to the Pensions Appeal Commissioners of decisions of the nominated judges of the High Court and the Court of Session in appeals under the Pensions Appeal Tribunals Act 1943 from decisions of Pensions Appeal Tribunals given before 6 April 2005. Held, allowing the appeal, that: 1. Pensions Appeal Commissioners have taken over the statutory appeal that previously lay to the nominated judges of the High Court and, while decisions of the nominated judges remain binding on pensions appeal tribunals, as are decisions of the Commissioners, decisions of the nominated judges are not binding on the Commissioners, but will normally be followed in the absence of strong reason to the contrary (paragraphs 18 to 21); 2. a claimant must prove injury and resulting disablement and the causal connection between them on the balance of probabilities before the question of the relationship of the injury to service is decided on the basis of giving the claimant the benefit of any reasonable doubt (Royston v Minister of Pensions [1948] 1 All ER 778, 3 War Pension Appeal Reports 1593 and Secretary of State for Defence v Rusling [2003] EWHC 1359 (QB), 13 June 2003 followed) (paragraphs 22 to 32); 3. the tribunal had erred in law by failing to explain why the appeal failed in relation to the condition soft tissue injury low back (post-service) (paragraphs 33 to 35); 4. while it was not necessary to decide the issue, the Commissioner inclined to the view that the tribunal had erred in failing to deal with the claimant’s submission about hip problems, since those problems were included in his claim and Rusling was authority for the view that a claimant retained the right to continue to challenge on appeal a diagnostic label for a condition under which a claim was originally rejected, even though the Secretary of State had later accepted another condition as attributable to service and as a cause of all the symptoms complained of. It would also be consistent with the essential nature of an appeal as a rehearing of the issue before the person who made the decision under appeal (Barratt v Minister of Pensions (1948) 1 WPAR 1225 and R(IB) 2/04 cited) (paragraphs 36 to 39); 5. a contention that a claimant has a new disablement operates as a claim, as distinct from a contention that disablement already accepted has got worse, which operates as an application for review of the past award. It does not matter in principle that a new disablement is said to result from an injurious process that has already been accepted as connected to service, and where the existing disablement either as expressly identified or as assumed to result from a defined injury is in the impairment of a particular organ or part of the body or mind, a contention that some different organ or part of the body or mind is now impaired is a claim in respect of a new disablement (paragraphs 40 to 47). The Commissioner remitted the case to a differently constituted tribunal for rehearing at the same time as the appeal against the Secretary of State’s decision in respect of the condition right trochanteric bursitis.
Decision(s) to Download:	R(AF)_1-07_bvam.doc