Secretary of State for Defence v CAW
[2023] UKUT 246 (AAC)
MH v The Secretary of State for Defence
7 August 2024
[2024] UKUT 241 (AAC)
Upper Tribunal
A veteran appealed two decisions about his war pension. The judge ruled that the initial decisions were unfair because they didn't follow the rules properly, so the cases will be heard again by a different judge.
Key Facts
- •Appeal against two First-tier Tribunal (FTT) decisions (ASS/241/2022 and SD/69/2021) dated March 2, 2023.
- •ASS/425/2021: Appeal concerned a reduction of an interim disability assessment from 60% to 40%.
- •SD/69/2021: Appeal concerned the cancellation of a War Pensioners Mobility Supplement (WPMS).
- •Both appeals argued the FTT erred in law.
Legal Principles
FTTs have the power to increase, maintain, or reduce awards on appeal, but must exercise this power lawfully and fairly, providing adequate reasons and notice.
Pensions Appeal Tribunals Act 1943, section 5 B(a); Social Security Act 1998, section 12(8)(a); R(IB)2/04; Hooper –v- SSWP [2007] EWCA Civ 495; BTC –v- SSWP [2015] UKUT 155 (AAC); ET v SSWP (PIP) [2017] UKUT 478 (AAC); DT v SSWP (PIP) [2020] UKUT 156 (AAC)
When reviewing a decision to the detriment of an armed forces member, the FTT must identify and apply the correct statutory basis under Article 44 of the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 2006 (SPO), considering grounds for revision in Article 44(4) and (5).
Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 2006, Article 44; DS v SSWP [2016] UKUT 538 (AAC)
Outcomes
Both appeals allowed.
The FTT in both cases made errors of law; in ASS/425/2021, by failing to properly exercise its discretion to reduce the assessment and provide adequate notice; and in SD/69/2021, by failing to identify and apply the correct statutory basis for reviewing the WPMS cancellation.
Appeals referred to be redecided by a different FTT at an oral hearing.
The Upper Tribunal cannot re-decide the appeals.