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[2007] UKSSCSC CAF_882_2007 (05 November 2007)

DECISION OF THE PENSIONS APPEAL COMMISSIONER

1. The claimant's appeal to the Commissioner is allowed. The decision of the Newport pensions appeal tribunal sitting on 17 October 2006 is erroneous in point of law, for the reasons given below, and I set it aside. The case is referred to a differently constituted pensions appeal tribunal for determination in accordance with the directions given in paragraphs 23 to 26 below (Pensions Appeal Tribunals Act 1943, as amended, section 6A(4)(b)).
2. In this case, the representative of the Secretary of State for Defence supported the claimant's appeal to the Commissioner, to the extent of agreeing that the pensions appeal tribunal (PAT) of 17 October 2006 had erred in law and suggesting that the case should be sent back to a new PAT for rehearing. In reply, the claimant gave some brief answers to points made for the Secretary of State and also requested an oral hearing before the Commissioner. But her reasons for the request were that written evidence has been ignored or taken out of context in previous PAT hearings. I interpret that more as a request for me to substitute a decision on the appeal that had been before the PAT of 17 October 2006, rather than referring it to a new PAT, and to hold an oral hearing for that purpose. However, for reasons that will emerge more fully below, I have concluded that the complicated issues of fact and evidence in this case should be determined by a body with the expertise and experience of a PAT, with the input of medical and service member as well as a legally qualified chairman. Accordingly, I refuse the request for an oral hearing as I am satisfied that the appeal to me (in the sense of answering the question whether the PAT of 17 October 2006 erred in law) can properly be determined without a hearing.
3. I apologise for the delay since the claimant made her reply. I am afraid that, in addition to the time taken while I considered whether or not to hold an oral hearing, the case has had to wait in a long queue before I have been free to produce this decision.
4. The PAT was concerned with the claimant's appeals against the Secretary of State's decision rejecting entitlement to disablement pension in respect of five conditions: (a) vaccine damage; (b) systematic lupus erythematosus; (c) antibodies to squalene; (d) bruising; and (e) skin rashes. The Secretary of State's initial rejection of conditions (a) and (b) was on the ground that the claimant had not shown that she was suffering from those conditions. The rejection of condition (c) was on the ground that she had not shown any disablement as a result of the condition. The rejection of conditions (d) and (e) was on the ground that they were not attributable to or aggravated by service. As the claim for antibodies to squalene as a result of vaccine damage, with some associated symptoms, had been made on 24 November 2004, more than seven years after the termination of the claimant's service in the Royal Air Force on 27 May 1992, it fell within Article 5 of the Naval, Military and Air Force Etc (Disablement and Death) Service Pensions Order 1983 (the 1983 SPO), now Article 41 of the 2006 SPO.
5. The papers were very extensive, running to well over 1,000 pages. Following an earlier adjournment, notice was given to the claimant and to her brother, who was acting as her representative, in letters dated 21 August 2006 of a hearing before the PAT sitting in Newport at 10 am on 17 October 2006. The claimant sent back a reply form ticking that she would be attending. Her brother had written on 26 August 2006 querying the time-slot given for the hearing and whether there would be enough time for the viewing of audio-visual material as directed by an earlier PAT. A reply was sent from the PAT office explaining why the appeal had been listed for three hours in the morning, rather than in an afternoon, and that a DVD player would be available.
6. On 2 October 2006, the Veterans Agency (VA), on behalf of the Secretary of State, sent out a supplementary Statement of Case. That seems to have consisted of the claimant's responses to the Secretary of State's reasons for maintaining his decision (on the disclosure of the identity of doctors) and to the further Opinions of Medical Services dated 16 March 2006 and 4 July 2006 (sent in on 26 August 2006), plus a statement that the Secretary of State did not wish to make any further comment. Thus the supplementary Statement of Case did not add any material of which the claimant and her representative would not already have been aware, but for present purposes what matters is the terms of the covering letters sent by the VA.
7. The letter to the claimant (now copied at page 1124) after saying that the supplementary Statement of Case was enclosed and that a copy had been sent to her representative, continued under the heading "What happens next":

"Copies of the Supplementary Statement will be sent to the Pensions Appeal Tribunal. The Tribunal office secretary will contact you regarding the appeal hearing."

The equivalent paragraph in the letter to the claimant's brother (now copied at page 1128) was as follows:

"Copies of the Supplementary Statement will be sent to the Pensions Appeal Tribunal. They will contact you at least 10 days before the date of the hearing to inform you when the appeal will be."

8. The was no communication by the PAT office to the claimant or her brother before 17 October 2006 or by either of them to the PAT office. The hearing took place on that date. Neither the claimant nor her brother attended. After watching the DVDs, the PAT heard from the VA representative at 12 o'clock. The PAT did come to a formal decision on 17 October 2006, but reserved its decision. In the event, the decision signed by all three members, which dismissed the claimant's appeal, was issued to the parties of 24 November 2006. The decision said this about proceeding on 17 October 2006, after noting that there had been no appearance from the claimant or message as to any problem by 12 o'clock:

"In the Opinion of the Tribunal, considerable latitude had been exercised in this delay to the hearing and it was in the interests of justice to proceed. The Tribunal took into consideration that the Appeal had been listed for half a day and had already been adjourned once. It would be a waste of Judicial resources to further adjourn when there is no guarantee that on a third occasion the Appellant would appear, or her Representative attend. Finally, there was a wealth of evidence from the Appellant (the Statement of Case ran to over 1,200 pages) and, particularly, numerous written submissions. The Tribunal had watched the DVDs as requested and took the view that oral evidence from the Appellant was unlikely to contribute very much more to the proceedings."

9. In the interim the claimant had written to the PAT office on 18 October 2006 as follows, also enclosing a copy of the VA's letter to her of 2 October 2006:

"Whilst browsing your website I was shocked to see that my appeal had been listed for hearing yesterday.

Although I was aware from your letter dated 21st August that the appeal had been originally listed for 17th October, I received a further letter from the Veterans Agency on October 2nd which stated that the appeal had been postponed and that your office secretary would contact me to give a new date.

As my brother and I have put a lot of work into preparing for this appeal I will be extremely annoyed if I find that the case has been heard in my absence due to an administrative error.

I would appreciate an urgent response from you explaining the present status of my appeal."

10. A clerk replied to her on 23 October 2006, with copies to her brother and the VA, to say that the appeal had been heard on 17 October 2006 and the decision reserved and ended:

"The Notice of Hearing was sent to you on 21 August 2006 and we received the Confirmation Form confirming that you would be attending on 11 September 2006. I should remind you that if an appellant fails to attend the hearing, the tribunal may treat this as a request to proceed in absence unless informed otherwise."

11. The claimant replied to the clerk on 26 October 2006, saying that he had failed to address the points in her letter of 18 October 2006 and enclosing a copy of the VA's letter of 2 October 2006 to her brother. She stated that she and her brother had concluded from the VA's letter, as any reasonable person would, that the hearing on 17 October 2006 would not be going ahead and she had been dep[rived of her absolute right to attend the hearing to present her case. Someone has written on that letter "26/10/06 RD to issue", but records in the PAT's administrative file indicate that the chairman's draft decision was not sent to the other members for agreement or amendment until mid-November 2006.
12. The Tribunal Manager wrote to the claimant on 31 October 2006 saying that the VA should not have contacted her informing her that the hearing of 17 October 2006 had been adjourned and that the Manager could find no record of such a communication. The PAT office had contacted the claimant and her brother well in advance of the VA letters with the date of the hearing and had not contacted them to inform them of any change.
13. The PAT's decision contained a detailed analysis of some very complicated medical, scientific and other evidence that I shall not attempt to summarise. Its conclusion was that the claimant had failed to show that she was suffering or had suffered from any of the five conditions. The PAT appeared to consider that the claimant was only required to show a reasonable doubt in her favour based on reliable evidence, as the case fell within Article 5 of the 1983 Service Pensions Order. It accepted that the claimant had had a cholera vaccination in October/November 1990 in preparation for deployment in the Gulf and probably a top-up of normal immunisations such as polio and tetanus, but not an anthrax vaccination. In addition, it found that the claimant had not shown that an anthrax vaccination at that time would have contained squalene or that she had tested positive for antibodies to squalene by comparison to any meaningful standard of normality.
14. The claimant now appeals to the Commissioner with my leave, leave having been refused by the chairman of the PAT on 13 February 2007. When granting leave on 11 May 2007, I said this:

"1. It is arguable that there was a breach of the principles of natural justice and possibly of Rule 20(2) of the Pensions Appeal Tribunal (England and Wales) Rules 1980 (the PAT Rules).

2. On the question of natural justice, it is arguable that the effect of the letters sent to the claimant and her representative (her brother) on 2 October 2006 by the Veterans Agency (enclosing a Supplementary Statement of Case) was that she was deprived of a fair opportunity of stating her case. Those letters were sent only two weeks before the date that had been fixed for the hearing, in relation to which the claimant had already given notice that she would be attending. The letters appear to have been in a standard form that was appropriate where no date for a hearing had yet been fixed. The letter to the claimant said that copies of the Supplementary Statement would be sent to the pensions appeal tribunal (PAT) and that the `Tribunal office secretary will contact you regarding the appeal hearing'. The letter to the representative said that the PAT `will contact you at least 10 days before the date of the hearing to inform you when the appeal will be'. It is arguable that it was not unreasonable for the claimant and her representative to assume, as they did, that the sending of such documents so close to the date of the hearing and the terms of the letters meant that the hearing on 17 October 2006 would not be going ahead and that a new date would be fixed. Others in the same circumstances might well have contacted the PAT office to check on the situation, but the case is arguable that the claimant was deprived of a fair opportunity to state her case when the hearing took place on 17 October 2006. That point does not depend on any finding that the members of the PAT of 17 October 2006 were at fault in any way in proceeding with the hearing in the absence of the claimant and her representative on that date (but see below).

3. A second arguable point on natural justice is this. The ground on which the claim in relation to the condition `antibodies to squalene' had been rejected by the Secretary of State was that the claimant had not shown the existence of any disablement due to that condition (see the letter of 1 April 2005, page 61, and paragraph 15 of the Further Opinion of Veterans Agency Medical Services, page 197). That would be in accordance with the principle derived from the Royston case that it is for a claimant to show on the balance of probabilities that she suffers from the injury claimed and some disablement (in the sense of an effect on some organ of the body) before a question of a more favourable burden of proof arises. The PAT's primary reason for disallowing the claimant's appeal in relation to that condition appears to have been that she had not shown that she did have antibodies to squalene (see the paragraphs of the statement under the headings `the positive test for antibodies to squalene' and immediately prior to the heading `systemic lupus erythmatosis'). It is arguable that if the PAT was minded to rely on that primary ground rather than the ground relied on by the Secretary of State, the principles of natural justice required that the claimant and her representative be given a fair opportunity to meet that new point and, if necessary, to seek additional evidence and advice. The claimant and her representative were not present at the hearing on 17 October 2006 and no steps were taken by the PAT to bring the point to the attention of the claimant and her representative before the decision was issued on 24 November 2006.

4. It is further arguable that the circumstances, including the circumstance that the PAT reserved its decision on 17 October 2006 and did not finalise its decision until shortly before 24 November 2006, may have involved a breach of Rule 20(2) of the PAT Rules. Rule 20(2) provides that if a party to an appeal fails to attend or be represented at a hearing of which he has been duly notified, the tribunal may, unless it is satisfied that there is sufficient reason for such absence, `hear and determine the appeal in the party's absence'. If the decision had been given on 17 October 2006, I probably would not have mentioned Article 20(2) in addition to the natural justice points already mentioned. It might have been good practice, especially in view of the vigour and tenacity with which the claimant had been pursuing her case, for the chairman to have asked the clerk to make some telephone enquiries when she did not turn up to a hearing she had said she would attend. However, the balance of Rule 20(2) appears to be in favour of proceeding in a claimant's absence, unless some reason for absence has been put forward, and Commissioners would be slow to second-guess the judgment of PATs in the exercise of the discretion to proceed. But in the present case the PAT did not determine the appeal until shortly before 24 November 2006. By that date the claimant had made it clear in her letters from that dated 18 October 2006 onwards why she and her representative had not attended on 17 October 2006 and why she objected to the hearing having proceeded in their absence on that date. She had replies dated 23 October 2006 and 31 October 2006 from officers of the PAT office in London. I do not know whether the chairman of the PAT of 17 October 2006 or the other members were informed of that correspondence. No mention was made of it in the statement of reasons when the PAT was explaining why it proceeded with the hearing on 17 October 2006. It is arguable that, as the discretion under Rule 20(2) is vested in the PAT as a whole, rather than the chairman alone, and the PAT administration had been informed of the reasons for the absence of the claimant and her representative on 17 October 2006, there was a breach of Rule 20(2) in the failure of the PAT as a whole to take into account those reasons (and deal with them in its statement) before proceeding to determine the appeal shortly before 24 November 2006."

15. As noted above, the representative of the Secretary of State in the submission dated 20 June 2007 supported the appeal to the Commissioner, agreeing that the letters sent by the VA on 2 October 2006 could have led the claimant to believe that the hearing had been postponed, thereby causing her not to attend the hearing on 17 October 2006. The error of law was put in terms of "not applying" rule 20(2) of the PAT Rules, but I take that as also an agreement that there had been a breach of the principles of natural justice. The Secretary of State's submission also made a further point about the burden of proof with which the claimant has disagreed in her reply of 31 July 2007. I shall come back to that separately.
16. In relation to breach of the principles of natural justice I now conclude, without the need for further analysis in the light of the support from the Secretary of State, that the PAT did err in law for the reason suggested in paragraph 2 of my reasons for granting leave to appeal. I also consider that there was probably a breach of rule 20(2) of the PAT Rules, or at least of the obligation to give adequate reasons in relation to the exercise of the discretion given by that provision, as suggested in paragraph 4 of my reasons for granting leave to appeal. Although the members of the PAT will almost certainly have reached agreement on the outcome of the appeal and on their essential reasons, the appeal would seem not to have been determined until the terms of the chairman's decision and reasons were agreed by all members, so as to authorise its promulgation. So, while the PAT may not, in the light of what it knew on 17 October 2006, have breached rule 20(2) by hearing the appeal, there would appear to have been a breach in its determining the appeal without having expressly considered the reasons given by the claimant for her and her brother's non-attendance. However, I do not need to reach a final conclusion on the point, as there are other errors of law established and it may be that more extended submissions on the complications of PAT procedure would be desirable before an authoritative view is expressed.
17. In relation to the possible breach of the principles of natural justice suggested in paragraph 3 of my reasons for granting leave to appeal, I now see that I managed to leave out a significant element of the history there, making my point very difficult to follow.
18. What should have been at the heart of the point is this. The VA's initial rejection of the claim in respect of antibodies to squalene was on the basis that the claimant had not shown any disablement relating to that claim (see the notification letter of 1 April 2005 transcribed at page 61). The Opinion of Medical Services of 14 October 2005 identified the reason for that conclusion as there being considerable doubts whether the claimant had antibodies to squalene in her blood at all, relying on criticisms of the research methodology of the expert relied on by the claimant. However, the Further Opinion of Medical Services of 16 March 2006 (pages 196 to 197) took a somewhat different line, accepting from more recent research that a test for detecting antibodies to squalene had been validated. The Further Opinion was perhaps not as clear it might have been, but appeared to proceed on the basis that the claimant did have antibodies to squalene in her blood, but that that did not imply that she had received an anthrax vaccination and that she had not shown that she suffered any disablement (ie an impairment of the proper functioning of some part of the body or mind, or damage to some part of the body or mind) as a result. The claimant might therefore have legitimately thought that the argument in the case was proceeding on the basis that it had been established that she did have antibodies to squalene in her blood. The PAT appeared not to accept that, or at least to throw considerable doubt on that basis, partly relying on criticisms of the expert's methodology and of her statement of the results of the test in the claimant's particular case. In my judgment, if the PAT were minded to make reasoning of that kind a significant factor in its decision (about the merits of which I am in no position to express any opinion), natural justice required the giving of a fair opportunity to the claimant to deal with that altered case. She might have been able to produce further evidence or submissions to support what had appeared to be accepted in the Further Opinion of Medical Services of 16 March 2006 and might have needed to take advice before doing so. I have discussed the general principle in decision CAF/2798/2006 (available on the Commissioners' website www.osscsc.gov.uk), especially at paragraphs 10 and 11.
19. It could be said that as there were other reasons expressed by the PAT for disallowing the claimant's appeal in relation to the condition antibodies to squalene and to other conditions even if she had been accepted to have those antibodies, it was not necessary to give her the opportunity to respond. There is force in that argument, especially in view of the further delay that would inevitably have been entailed. On the other hand, the PAT's reasoning rather hangs together as a whole and the primary conclusion stated in relation to the conditions vaccine damage and antibodies to squalene was that the claimant had failed to show that she had "such vaccine damage in the form of antibodies to squalene". In that context, I consider that the claimant was deprived of a fair opportunity of stating her case on that issue.
20. I now conclude that the PAT sitting on 17 October 2006 did err in law for the reasons given above and I set aside its decision as erroneous in point of law.
21. I return briefly to the issue of the burden of proof. It is clear that the claims with which the PAT was concerned fell under Article 5 of the 1983 SPO. Under that Article a claimant does not have to show more than a reasonable doubt in her favour about the connection with service of an injury (ie a condition) that has resulted in disablement. However, there is an initial burden on a claimant to show on the balance of probabilities both that she is suffering or has suffered from the condition claimed and that it has resulted in disablement. That principle has been firmly established since the end of the Second World War in decisions of the nominated judges of the High Court. I gave more details in a long and complicated decision, CAF/3326/2005 (now reported as R(AF) 1/07), in particular in paragraphs 29 to 32. It was by reference to those principles that the VA rejected the claims for conditions (a) to (c). Thus, the PAT of 17 October 2006 may have gone wrong in law in applying the reasonable doubt test to a question of whether the claimant had shown disablement resulting from the condition antibodies to squalene, but that would not have been a good reason for allowing the claimant's appeal to the Commissioner if no other errors of law existed. However, a new PAT will have to apply the correct principles on the burden of proof.
22. It will be apparent from what I have said above that the factual disputes in this case concern difficult, complicated and in some respects controversial medical and scientific evidence and arguments. I have no doubt that the proper body to decide those factual disputes is not a Commissioner with mere legal qualifications, but a PAT with its unique blend of expertise and experience. A hearing involving the assessment of much evidence can also be arranged much more effectively and economically within reasonable distance of a claimant's home before a PAT. Accordingly, there should be a rehearing by a new PAT and I should not substitute a decision myself.

Directions to the new PAT

23. The claimant's appeal against the Secretary of State's decision of 1 April 2005 is referred to a differently constituted PAT for determination in accordance with the following directions. There must be a complete rehearing on the submissions made and evidence presented to the new PAT, which will not be bound by any findings made or conclusions expressed by the PAT sitting on 17 October 2006, or any PAT that previously considered the appeal against the decision of 1 April 2005.
24. I do not make any direction that a copy of the decision of the PAT of 17 October 2006 is to be excluded from the papers put before the new PAT. I have no doubt that the members of that new PAT will fully understand their judicial obligation to make their own entirely independent evaluation of the evidence and submissions. And it is necessary to refer to that decision to understand that the claimant now knows that a possible view of the evidence, which she must now be prepared to meet, is that she has failed to prove on the balance of probabilities that she suffers from the condition antibodies to squalene (apart from the question of whether she suffers from resulting disablement).
25. The claimant has asked that any rehearing should not take place at Newport. I am not sure of the reasons for that request. As I understand it, the chairmen and members of PATs in England and Wales routinely sit at venues all around those countries. A hearing in Newport would not be conducted by a chairman or members who had any particular connection with the area or with those who had sat on previous PATs there. Therefore, I do not make a direction on the lines requested by the claimant. Of course, she may make representations to the PAT office or, if necessary, to the President of PATs about the venue for the rehearing, especially if there are any practical reasons why another venue would be more convenient for her.
26. I need give no directions of law about the interpretation of the Service Pensions Order beyond the reminder to apply the burden of proof as explained in paragraph 21 above. The evaluation of all the evidence will be entirely a matter for the judgment of the members of the new PAT. The claimant must not assume that, just because she has been successful in this appeal to the Commissioner on a point of law, she will be successful on the merits of his appeal before the new PAT. My decision is entirely neutral on that. The decision on the facts in this case is still open.

(Signed) J Mesher

Commissioner

Date: 5 November 2007