Social security – Jurisdiction – Pensions appeal tribunals – Veterans – War disablement pension

R (on the application of Secretary of State for Defence) (claimant) v Pensions Appeal Tribunal (defendant) & Harry Hornsby (interested party) (2008): QBD (Admin) (Mr Justice Underhill): 14 July 2008

The claimant secretary of state applied for judicial review of a decision of the defendant tribunal that it had the jurisdiction to determine an appeal by the interested party (H) against a decision of the secretary of state to refuse to conduct a review of the amount of war pension payable to H.

H, a war veteran, had been assessed as having a 6-14% disablement due to bilateral sensorineural hearing loss sustained during his war service. As that disablement was less than 20%, H was only entitled to payment of a gratuity in addition to his war pension rather than a war disablement pension. The initial assessment was reviewed five years later but the secretary of state maintained the original assessment. H unsuccessfully appealed against that decision to the tribunal. Six years later, H wrote to the secretary of state claiming further entitlement for a deterioration in his condition. H was informed that it was a medical fact that his form of hearing loss could not worsen after removal from the source of harmful noise and that his complaint, being treated by the secretary as an application for review, was rejected on the basis that there were no grounds to conduct a review. In further correspondence the secretary of state reiterated that determination to H.

H appealed against that decision to the tribunal which held that it had the jurisdiction to hear H’s appeal to it. The secretary of state contended that the tribunal erred in deciding that it had the jurisdiction to entertain H’s appeal because the tribunal only had the power to hear an appeal if the decision being appealed was a specified ­decision under the Pensions Appeal Tribunals Act 1943 or the Pensions Appeal Tribunals (Additional Rights of Appeal) Regulations 2001, and that his decision not to conduct a review of H’s disablement was not a specified decision.

Held: The tribunal had no jurisdiction to hear an appeal of the secretary of state’s decision not to conduct a review of H’s disablement because the secretary of state’s decision was not a specified decision amenable to appeal. Moreover, it could not be said that the correspondence from the secretary of state amounted to a fresh decision capable of review.

Application granted.

Clive Lewis QC (instructed by Treasury Solicitor) for the claimant; no appearance or representation for the defendant; Guy Opperman (pro bono), Mark Green (pro bono) (instructed by Moore & Blatch) for the interested party.