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Neutral Citation Number:
Reported Number:	R(AF)1/08
File Number:	CAF 2867 2006
Appellant:
Respondent:
Judge/Commissioner:	Judge E. A. L. Bano
Date Of Decision:	25/06/2007
Date Added:	10/07/2007
Main Category:	War pensions and armed forces compensation
Main Subcategory:	War pensions - specified decisions
Secondary Category:
Secondary Subcategory:
Notes:	War disablement pension – commencement date of award on review – acceptance of additional condition as attributable to service – whether award made on new claim or review The claimant suffered gunshot wounds while serving in the Army in 1954. His discharge in 1957 was not on medical grounds, so there was no deemed claim for pension in 1954. He later went to live abroad and did not claim a war pension until 1997. The conditions “gunshot wound to chest and abdomen” and “generalised anxiety disorder” were accepted as attributable to service and on 24 September 1998 he was awarded a pension with effect from December 1996 on an assessment of 20 per cent. That award was increased to 40 per cent by an appeal tribunal on 17 August 2001. In July 2004 the claimant made a claim in respect of post-traumatic stress disorder (PTSD). The Veterans Agency accepted PTSD as an additional condition attributable to service and made an award on that basis with effect from 16 July 2004, but maintaining the assessment of disablement at 40 per cent. The claimant appealed against the commencement date of the award. It was argued on his behalf that the Secretary of State’s failure to take reasonable steps to make available war pensions information to ex-service personnel abroad had caused the claimant’s delay in claiming a pension, and that (following Secretary of State for Defence v Reid [2004] EWHC 1271) the award should therefore be backdated under paragraph 10 of Schedule 3 to the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 1983 (since replaced by the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 2006). The tribunal dismissed his appeal and he appealed to the Commissioner. Held, allowing the appeal, that: 1. paragraph 10 of Schedule 3 required that the act or omission of the Secretary of State was and continued to be the dominant cause of the delay up to the moment the claim or application was made, and since the appellant must have been aware of the war pensions scheme when he made his claim in 1997, any failure by the Secretary of State to make ex-servicemen living abroad aware of the scheme could not have caused the appellant’s failure to make a claim in respect of PTSD until July 2004 (paragraph 16); 2. however, the decision in 2004 must have been made in the exercise of the Secretary of State’s review powers rather than on a new claim, since the claimant was alleging a misdiagnosis or misdescription of his original disablement, rather than any new or additional impairment of body or mind (R(AF) 1/07 followed), and the award could therefore be backdated to the date of effect of the original decision on the ground of official error under the provisions now contained in paragraph 1(7) of Schedule 3 to the 2006 Service Pensions Order (paragraph 23); 3. the appeal tribunal of 17 August 2001 was concerned only with the assessment issue and therefore article 44(3) of the 2006 Service Pensions Order did not operate to limit the grounds for a subsequent review of the entitlement decision (paragraph 24); 4. the tribunal had therefore erred in law in failing to consider whether the decision of 24 September 1998 was, or should have been, reviewed on the ground of official error, so as to entitle the appellant to backdating of his award in respect of PTSD to the date of the original awarding decision (although that would not lead to an increase of pension) (paragraph 25). The Commissioner remitted the case to a differently constituted tribunal to decide the issue of whether the failure to diagnose the appellant as suffering from post-traumatic stress disorder arose from official error, in accordance with the principles set out in R(AF) 5/07.
Decision(s) to Download:	R(AF) 1-08.doc