Decision Summary Information

Back to Results | Search Again | Most Recent Decisions

Neutral Citation Number:
Reported Number:	R(AF)3/08
File Number:	CAF 1071 2006
Appellant:
Respondent:
Judge/Commissioner:	Judge M. Rowland
Date Of Decision:	05/02/2008
Date Added:	04/03/2008
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 – application for backdating – whether application for review for which grounds for delay must be shown The claimant was discharged from the Army for misconduct on 26 May 1974. On 17 October 1994 he was awarded a war disablement pension based on an interim assessment of 30 per cent for manic depressive psychosis aggravated by his service. The award was made effective from 20 November 1991, the date when he had first indicated he wished to claim. On 20 February 1995 the assessment was increased to 50 per cent with effect from 4 November 1994. On 13 June 1996 the Royal British Legion requested backdating of the award to the date of discharge, but there was no evidence of a decision on backdating until 12 September 2002, when the Secretary of State made a decision that payment on the assessment of 50 per cent could not be made for any period before 4 November 1994. The claimant appealed against that decision. The tribunal dismissed the appeal on the ground that the claimant did not fall within the scope of either paragraph 5 or paragraph 10 of Schedule 3 to the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 1983, as amended, which governed the commencement date of awards. As originally enacted, Schedule 3 gave the Secretary of State a broad discretion to backdate an award. A new version was substituted in 1997 (and further amended in 2001) which, so far as relevant, allowed backdating only if the delay was due to a medical condition or (on a review request) an error or omission on the part of the Secretary of State. The claimant appealed to the Commissioner. Held, allowing the appeal but substituting his own decision to the same effect, that: 1. it had been necessary to consider the nature of the 2002 decision under appeal to the tribunal (paragraphs 23 and 24); 2. the 2002 decision was a review decision under article 67(2)(a) of the Service Pensions Order reviewing (but not revising) the awards made on 17 October 1994 and 20 February 1995 on the grounds of ignorance of material fact and, on the balance of probabilities, was a decision on the request for a review made in 1996 (paragraphs 25 to 29); 3. a claimant applying for a review of the commencement date of an award needed to show good grounds for the delay in making the application for the review as well as for the delay in making the claim (paragraphs 30 and 31); 4. under the new, non-discretionary version of Schedule 3, a failure by the Secretary of State to investigate whether backdating might be appropriate coupled with a failure to provide the claimant with sufficiently detailed information to enable him to realise he must raise it himself with appropriate evidence before the award was given amounted to an error or omission falling within paragraph 10 from 1997 and also paragraph 1(6A) from 2001, giving grounds for backdating an award made on a first application for review made with reasonable promptness (paragraphs 32 and 33); 5. the tribunal had erred in not determining whether the decision under appeal was a review decision or whether there had been a previous review decision and in not considering the law as it was in force in 1991 when considering whether the award should have taken effect before the date of claim (paragraph 36); 6. the claimant may have had good grounds for delay in applying for the review, but he had not shown good grounds for delay in his original claim, since his medical condition had been variable and there were periods up to the date of claim when he could reasonably have been expected to claim (paragraphs 37 to 41); 7. the tribunal had also erred in not considering whether an award based on an assessment of 50 per cent should have been made before 4 November 1994, but there had been no relevant grounds for review of the award of 17 October 1994 (paragraph 42).
Decision(s) to Download:	R(AF) 3-08 ws.doc