JA -T v Secretary of State for Defence (AFCS) [2011] UKUT 323 (AAC) (05 August 2011)

IN THE UPPER TRIBUNAL Case No. CAF/2281/2010

ADMINISTRATIVE APPEALS CHAMBER

Before Judge Nicholas Paines QC

Decision: The First-tier Tribunal reached the only conclusion that was open to them on a correct view of the law. Accordingly, although their decision involved an error of law in one respect, it would not be right to set it aside.

REASONS FOR DECISION

1. This is an appeal against a decision of the First-tier Tribunal (War Pensions and Armed Forces Compensation Chamber) dismissing the claimant’s appeal as being out of time. The claimant is the widow of a man to whom a War Pension was awarded in 2002 in respect of cancer contracted by him through exposure to radiation during his participation in nuclear weapons tests whilst in the Royal Air Force. The same firm of solicitors has represented the claimant’s late husband and subsequently the claimant in their dealings with the Veterans Agency and subsequently the Service Personnel and Veterans Agency (SPVA).

The facts

2. Following the claimant’s husband’s death in November 2006, the claimant, through her solicitors, claimed a war widow’s pension in February 2007. In June 2007 the SPVA rejected the claim, stating “our doctors have confirmed that your late husband’s death was not due to or hastened by or substantially hastened by the conditions we paid a pension for, the effects of their war service, the worsening of an injury caused by their service, the worsening, because of their service, of an injury which was there before or happened during their service”. The letter said nothing about rights of appeal, but referred to an enclosed leaflet explaining “what to do if you disagree with our decision”.

3. On 28 September 2007 the claimant’s solicitors wrote to the Agency referring to its decision and saying “Please accept this letter as our client’s notification that she intends to appeal the decision of the Veterans Agency refusing her widow’s pension. Please forward the necessary appeal forms directly to us and we will arrange for these to be completed on behalf of our client”. On 8 October the Agency acknowledged the letter and said it had been passed to the caseworker dealing with the claimant’s claim.

4. According to the Agency, appeal forms were issued to the solicitors on 17 October. The solicitors say that they did not receive them. They have asked for a copy of the letter sending the forms but the Agency has not produced one, saying that covering letters are not sent with appeal forms and copies of forms sent out are not kept on file. The Agency has produced a copy of its internal “Appeal action sheet”, which has a pre-printed line saying “Forms issued on [ ] by [ ]”. The boxes are completed with the date 17/10/07 and a not readily legible signature, which the Secretary of State says is that of the Agency official who conducted the subsequent correspondence. I see no reason to doubt either that the forms were sent out or that they did not reach the solicitors.

5. Nothing happened until the solicitors wrote again on 17 December 2008 enclosing copies of the letters of 28 September and 8 October 2007, saying that no appeal forms had been received and asking for them to be issued as a matter of urgency. The letter continued “In view of the fact that the failure to forward any appeal forms sooner appears to have been an oversight on your part we assume that you will take no issue in relation to the timing of our client’s appeal, but we would be grateful if you would confirm”. By this time, the non-extendible deadline for bringing appeals ad expired.

6. In the meantime, on 3 November 2008, the Pensions Appeal Tribunal (PAT) had been abolished and its functions transferred to the First-tier Tribunal (War Pensions and Armed Forces Compensation Chamber) by the Transfer of Tribunal Functions Order 2008; the procedural rules governing PAT proceedings in England Wales (the Pensions Appeal Tribunal (England and Wales) Rules 1980) had been replaced by the Tribunal Procedure (First-tier Tribunal) (War Pensions and Armed Forces Compensation Chamber) Rules 2008, which I shall call the “Chamber Rules”.

7. The SPVA replied to the letter of 17 December in a letter of 31 December 2008 enclosing further forms and saying that forms had originally been issued in October 2007, that the appeal would have to be treated as a late appeal and that the “late appeal part of the form would need to be completed”. The evidence of the Agency to the Administrative Court in R (Secretary of State for Defence) v Pensions Appeal Tribunal [2007] EWHC 1177 (Admin) was that appeal forms are sent out whether or not it appears that the appeal is out of time, since that is a matter for the tribunal (see paragraph 23 of the judgment); that seems to me to be a principled approach.

8. The solicitors submitted the appeal form under cover of a letter of 6 February 2009, saying that they had signed the form on the claimant’s behalf as she lived abroad. The letter asked the Agency to submit the appeal forms to the tribunal together with copies of an accompanying letter addressed to the Tribunal and of the previous correspondence between the solicitors and the Agency. The letter to the tribunal recounted the history of the appeal, contained an explanation of the failure to notice the non-arrival of the appeal forms in 2007, submitted that the case did not turn on oral evidence and would not be prejudiced by the delay, and asked the tribunal to allow it to proceed.

9. It appears that the Agency returned the forms to the solicitors because no written authority from the claimant had been supplied. The forms were sent in again, accompanied by written authority, in March 2009. On 20 March 2009 the Agency wrote to the solicitors saying that the matter had been passed to the case worker dealing with the appeal.

10. On 14 July 2009 the solicitors wrote again asking for an update. The Agency replied on 16 July, apologising for the delay and saying that it had been seeking advice from its Policy section regarding the case; it was currently preparing an appeal bundle that would be forwarded to all parties as soon as it was complete. The papers do not disclose precisely when this happened, but in their respective submissions to the First-tier or Upper Tribunal the solicitors said that the case was referred to the tribunal on or about 3 September 2009; the Secretary of State has said it was on 2 September.

11. On 30 November 2009 a tribunal judge directed the SPVA to respond to the assertions in the solicitors’ letter of 6 February 2009 about the apparent failure to supply appeal forms in 2007. The Agency replied on 7 December referring to the appeal action sheet that I have referred to in paragraph 4 above. The tribunal thereupon directed that the appeal be listed for the claimant to show cause why the appeal should not be struck out for non-compliance with rule 21(1) of the Chamber Rules. The claimant’s solicitor prepared a written submission and appeared before the tribunal at a hearing on 20 July 2010. His submission was that the tribunal should, in accordance with the over-riding objective, waive certain of the requirements of rule 21 so that the letter of 28 September 2007 could be treated as the notice of appeal.

12. The tribunal rejected the submission, holding that as at the date of the 2007 letter the PAT Rules required an appeal to be commenced by a notice of appeal on an appropriate form; although the letter might have qualified under the Chamber Rules, these could not be applied retrospectively to perfect an appeal that was invalidly made. At the same time, the tribunal gave permission to appeal to the Upper Tribunal on the questions:

(1) Are the new rules retrospective when considering “spanning cases” being appeals initiated under one set of rules but subsequently being processed under another set?

(2) To what extent (if at all) can some of the information required by rule 21 be dispensed with? Some of the details required are already held by the SPVA and are of an administrative nature only. Other requirements are more fundamental.

(3) Are there any grounds to allow this appeal to proceed in the interests of justice?

13. In November 2010 an Upper Tribunal judge directed the Secretary of State to provide a response to the appeal and permitted the claimant to reply to it. He extended the permission to appeal to cover any grounds that might be raised and directed the parties to indicate whether they wished for an oral hearing of the appeal. Both parties have indicated that they do not wish for an oral hearing.

The legislation

14. Before discussing the parties’ submissions, it is helpful to set out the legislative background.

15. Pension Appeals Tribunals were created by the Pensions Appeal Tribunals Act 1943, which also specified their jurisdiction and the manner of bringing appeals before them. Section 8 of the Act, as amended, provided in 2007 (i.e. at the time of the solicitors’ letter of 28 September 2007) that

(1) No appeal shall be brought under any provision of this Act except subsection (1) of section five unless notice of that appeal is given, in such manner as may be prescribed by rules made under the Schedule to this Act, not later than six months after the date on which the decision or assessment is notified to the claimant.

…..

(5) The Minister may by regulations made by statutory instrument provide that the Tribunal may, in circumstances prescribed in the regulations, allow an appeal to be brought not later than twelve months after the end of any period limited by this section.

Appeals under section 5(1) (against assessments of disability), for which a shorter time limit was provided, are not relevant to the present case.

16. The Pensions Appeal Tribunals (Late Appeals) Regulations 2001 were made under the powers in section 8(5) above. They allowed the tribunal to permit an appeal to be brought not later than 12 months after the section 8(1) time limit in certain prescribed circumstances.

17. Section 9 of the Act continued:

Any notice given by the Minister under this Act shall be in writing and may be sent by post to the last known or usual place of abode of the claimant or any person authorised to act on his behalf in relation to the claim and, in the case of a notice of a decision from which an appeal lies to the Tribunal, shall specify that fact and the time within which and the manner in which notice of such an appeal must be given.

18. Section 8 now only applies to Pensions Appeal Tribunals in Scotland or Northern Ireland (see paragraph 17 of schedule 3 to the Transfer of Tribunal Functions Order). Section 9 applies to the decisions appealable to the First-tier Tribunal: paragraph 18 of schedule 3 to the Transfer of Tribunal Functions Order replaces the reference to the “Tribunal” with a reference to the “appropriate tribunal”, which is defined by paragraph 20 of the schedule as including the First-tier Tribunal.

19. Rule 4 of the Pensions Appeal Tribunals (England and Wales) 1980, as it stood in 2007, provided

(1) An appeal to a tribunal shall be commenced by a notice of appeal to the Secretary of State on an appropriate form …..

(2) The appropriate form of notice of appeal shall be provided by the Secretary of State on request.

(3) A notice of appeal shall be signed by the appellant, or as the case may be, by the person acting on behalf of the appellant, and shall bear the date on which it was signed, and shall be sent by post addressed to the Secretary of State for Defence.

20. Rule 5 provided for the exchange of submissions and evidence, following which the Secretary of State was to send copies of the documents to the PAT Office. Rule 33(1), as amended, provided that

… the time appointed by these Rules for doing any act or taking any step in connection with an appeal may be extended by the President upon such terms as the justice of the case may require, and such extension may be ordered although the application therefore is not made until after the expiration of the time appointed.

21. Rule 37 provided:

Non-compliance with any of these Rules shall not render the proceedings on the appeal void unless the tribunal or the President shall so direct, but the tribunal or the President may give such directions for the purpose of mitigating the consequences of the irregularity as the justice of the case may require.

22. Rules 33 and 37 did not apply to the time limits for bringing proceedings, which were not in the Rules but in the Act.

23. The commencement of proceedings in the First-tier Tribunal (War Pensions and Armed forces Compensation Chamber) is now governed by rule 21 of the Chamber Rules, which provides so far as material:

(1) An appellant must start proceedings by sending or delivering a notice of appeal to the decision maker so that it is received—

(a) in proceedings under section 5(1) of the Pensions Appeal Tribunals Act 1943, within 3 months after the date on which written notice of the decision being challenged was sent to the appellant; or

(b) in other cases under the Pensions Appeal Tribunals Act 1943, within 6 months after the date on which written notice of the decision being challenged was sent to the appellant.

(2) If the appellant provides the notice of appeal to the decision maker later than the time required by paragraph (1) the notice of appeal must include the reason why the notice of appeal was not provided in time.

(3) Subject to paragraph (4), where an appeal is not made within the time specified in paragraph (1), it will be treated as having been made in time if the decision maker does not object.

(4) No appeal may be made more than 12 months after the time specified in paragraph (1).

(5) The notice of appeal must be in English or Welsh, must be signed by the appellant and must state—

(a) the name and address of the appellant;

(b) the name and address of the appellant’s representative (if any);

(d) details (including the full reference) of the decision being appealed; and

(e) the grounds on which the appellant relies.

(6) The decision maker must refer the case to the Tribunal immediately if—

(a) the appeal has been made after the time specified in paragraph (1) and the decision maker objects to it being treated as having been made in time; or

(b) the decision maker considers that the appeal has been made more than 12 months after the time specified in paragraph (1).

(7) Notwithstanding rule 5(3)(a) (case management powers) and rule 7(2) (failure to comply with rules etc.) the Tribunal must not extend the time limit in paragraph 4.

Paragraph 7 was added, with effect from 1 September 2009, by the Tribunal Procedure (Amendment No 2) Rules 2009.

24. Rule 23 requires the decision-maker to provide to the tribunal a response to the notice of appeal accompanied by inter alia a copy of the notice of appeal. This is to be done “as soon as reasonably practical”. As with the 1980 PAT Rules, the appeal is initiated by giving notice of appeal to the Secretary of State. It only reaches the tribunal either once submissions have been exchanged between the parties or in the circumstances envisaged by rule 22(6).

25. Rule 2 contains the tribunal’s over-riding objective of inter alia “ensuring, so far as practicable, that the parties are able to participate fully in the proceedings” and the parties’ duty to co-operate with the tribunal. Rule 7 provides that “an irregularity resulting from a failure to comply with any requirement in these Rules … does not of itself render void the proceedings or any step taken in the proceedings”. The tribunal may take any action that it considers just, including waiving the requirement.

26. Transitional provision for appeals pending before tribunals which were replaced by the First-tier Tribunal on 3 November 2008 was made in schedule 4 to the Transfer of Tribunal Functions Order. These are what the tribunal referred to as “spanning cases”; I shall call them “transitional cases”. The schedule provides that appeals which were pending before the replaced tribunal immediately before 3 November 2008 should continue as proceedings before the First-tier Tribunal and that

(3) The First-tier Tribunal or Upper Tribunal, as the case may be, may give any direction to ensure that proceedings are dealt with fairly and, in particular, may—

(a) apply any provision in procedural rules which applied to the proceedings before 3rd November 2008; or

(b) disapply provisions of Tribunal Procedure Rules.

(4) In sub-paragraph (3) “procedural rules” means provision (whether called rules or not) regulating practice or procedure before a tribunal.

The submissions

27. At the time I issued a direction in this case in April 20011, there had been an exchange of submissions which had not reached the judge’s file. I gave permission to the Secretary of State to file a further submission and the claimant to reply. There have been further exchanges since my direction, though these largely repeat earlier arguments. I have now considered all the submissions.

28. The Secretary of State, represented by Rob Williams of counsel, supports the tribunal’s reasoning, submitting that whether the letter of 28 September 2009 could stand as a valid notice of appeal had to be assessed by reference to the PAT Rules. He submits that the new rules could not apply unless there were proceedings pending before 3 November 2008, which there were not. It was clear that the letter was not a notice of appeal on an appropriate form, as required by PAT rule 4. He adds that, since nothing further was done prior to the expiry of the time limit in the Late Appeals Regulations, there could be no valid appeal under the PAT Rules. He goes on to say that the appeal forms were similarly out of time under the Chamber Rules.

29. As regards the application of the Chamber Rules to the letter of 28 September 2007, he submits that the first question is whether proceedings were pending before the PAT immediately before 3 November 2008 since, if not, there could be no proceedings before the First-tier Tribunal in existence on and after 3 November. That is a question to be determined by the old Rules and the answer is that there were not. The tribunal could not use its case management powers under the Chamber Rules in order to waive those of the new Rules’ requirements for a notice of appeal that were not met by the 28 September letter; that would amount to giving itself jurisdiction that it otherwise lacked. The Secretary of State adds that the claimant’s solicitors were at fault for not following up their request for appeal forms earlier; in my judgment that is, however, irrelevant at this stage: the issue is whether the First-tier Tribunal had a discretion to waive the requirements, not whether it should exercise it in the claimant’s favour.

30. The claimant has produced well-argued submissions prepared by counsel, Ms Rachel Kamm. She accepts that the appeal forms were served out of time and that the tribunal had no jurisdiction to accept them, but submits that the 28 September letter is capable of constituting a notice of appeal under the Chamber Rules by virtue of the Chamber’s power to waive its non-compliance with rule 21.

31. The claimant’s primary submission is that the validity of the notice had to be determined under the Chamber Rules: proceedings before the First-tier Tribunal did not commence until the papers were sent to it in September 2009, by which time the Chamber Rules were in force; even if proceedings had been commenced before the PAT, they continued from 3 November 2008 onwards as proceedings before the First-tier Tribunal, to which the Chamber Rules applied subject to the tribunal’s discretion under the Transfer of Functions Order to disapply them or to apply the old rules in order to ensure that the proceedings were dealt with fairly.

32. Applying the Chamber Rules to the 28 September letter, it is submitted (correctly) that there is no requirement in them of an “appropriate form”. It is submitted that the letter contained all the information required by rule 21 of the Chamber Rules apart from the grounds of appeal but, given the very general terms of the decision letter (which I have quoted in paragraph 2 above) the claimant could not be expected to draft detailed grounds of appeal; it was implicit in the letter that the claimant wished to appeal because she considered that the SPVA’s decision was wrong. The submission then refers to the Agency’s failure to send out the appeal forms; as I have indicated at paragraph 4 above, I find that the Agency did send the forms out, though they were not received.

33. Alternatively, the tribunal had power under Chamber rule 7(2) to waive the requirement of a statement of the grounds of appeal; it erred in law in not recognising that it had that power. The claimant asks the Upper Tribunal to exercise the power in this case. It is submitted that exercising the power would not amount to assuming a jurisdiction that the First-tier Tribunal or Upper Tribunal did not have: the question is whether non-compliance with that requirement of rule 21 rendered the putative notice of appeal a nullity; the consequences of the non-compliance have to be considered (R v Soneji [2006] 1 AC 340). The failure to state the grounds of appeal had not caused any prejudice. Moreover, the over-riding objective required the tribunal to ensure, so far as practical, that the claimant was able to participate fully in the proceedings; denying the claimant an opportunity to appeal was contrary to the over-riding objective given the importance of the case to her and the absence of evidence that the Agency sent out the forms when initially requested.

34. In the further alternative, the 28 September letter was a valid notice of appeal under the 1980 Rules: a letter could be an appropriate form within the meaning of rule 4(1); alternatively, under rule 37, any non-compliance with rule 4 did not render the proceedings void: the President could give directions for mitigating the consequence of the irregularity. Moreover, the apparent failure of the Secretary of State to supply the appropriate form on request (rule 4(2)) estopped the Secretary of State from relying on rule 4(1) or was a matter the tribunal should have taken into account in exercising its discretion under rule 37.

My decision

35. The claimant is right to accept that the appeal forms submitted in early 2009 could not bring into being a valid appeal, because they were on any view served on the Secretary of State after the expiry of the extended deadline which was by then contained in Chamber rule 21(4). I note in this context that the decision letter did not inform the claimant of her right to appeal, as required by section 9 of the 1943 Act (set out at paragraph 17 above). In R (Secretary of State for Defence) v Pensions Appeal Tribunal Stanley Burnton J held that all the information required by section 9 did not have to be included in the decision letter itself, but regarded a failure to refer in the letter to the right of appeal as non-compliance with the section (see paragraphs 72-73 of the judgment); this was because the leaflet did not itself inform the claimant whether his or her decision was appealable: see paragraph 39. However (referring, among other cases, to R v Soneji), he held that the consequence of failure to comply with section 9 was not that time for appealing did not begin to run against the claimant.

36. Though there was no reference in the decision letter in the present case to the right of appeal, the claimant’s solicitors were nevertheless aware of her right to appeal, as the 28 September letter shows. I do not consider that they could have argued successfully that time did not run against her.

37. Secondly, the terms of Chamber rule 21(4), that “no appeal may be made” more than 12 months after the primary deadline in rule 21(1), are in my judgment clear: the First-tier Tribunal has never had power to extend the second deadline or waive non-compliance. It is noteworthy that the Agency did not refer the case to the tribunal ‘immediately’ on receiving complete appeal forms in March 2009; the papers were not put before the tribunal until 2 September, by which time paragraph 7 had been added to rule 21. I do not, however, consider that the claimant’s position was prejudiced by that delay since I consider that the tribunal would have had to reject an appeal based on the March 2009 appeal forms even if it had been considering the matter before September 2009. Therefore (as the claimant accepts) she has to rely on the 28 September letter as the bringing of proceedings.

Which Rules apply?

38. There has been a sophisticated debate as to which rules apply. The Secretary of State’s latest submissions seem almost to reach the point of saying that no rules at all apply. That could not be right: the tribunal must always operate within a framework of rules. (The true force of the Secretary of State’s submission is that there would be an objectionable circularity in the tribunal using its power to waive irregularities in a notice of appeal so as to convert a document that was not a notice of appeal into such a notice. I expand on this below).

39. In my judgment the Chamber Rules apply to proceedings in the First-tier Tribunal whether the case is a transitional one or one commenced after 3 November 2008; in transitional cases their application is subject to a power to disapply the Chamber Rules and/or to apply the PAT Rules where it is just to do so. That power is not, in my judgment, subject to an inflexible rule that powers under the Chamber Rules cannot be used in respect of things done before 3 November 2008. However, where the issue is the legal consequences, at the time it was done, of something done before 3 November 1980 (and in particular whether there was compliance with rules or not), it would be irrational and therefore unfair to assess those consequences by reference to legal rules that were not in force at the time. Those consequences have to be determined by applying the PAT Rules.

40. Where the issue is whether an irregularity can be waived or cured is prima facie to be determined by the First-tier Tribunal under the Chamber Rules unless, in its judicial discretion, the tribunal decides under schedule 4 to the Transfer of Functions Order to apply the PAT Rules in the interests of fairness. Since it is the new Rules that now contain the procedural requirements judged appropriate to proceedings in the War Pensions and Armed Forces Chamber, it does not seem to me to be a wrong approach to applying the remedial powers in Chamber rule 7 to have regard for example, to the fact (if it is the case) that the degree of non-compliance with the standards set by the new Rules is less than with standards set under the old Rules. The guiding principles seem to me to be those of logic and the interests of justice.

41. In deciding whether an irregularity is curable, regard may be had, as appropriate, to the degree of non-compliance with the rules that existed at the time the irregularity occurred or the degree of non-compliance with the current rules. If the irregularity placed the other party at a disadvantage at the time it occurred, it may be inappropriate to waive it even though it would not have caused so much disadvantage if it had occurred under the new rules. If, on the other hand, some feature of the new rules mitigates the disadvantage to the other party, the irregularity may be more readily waived.

Compliance with the PAT Rules

42. In my judgment there plainly was non-compliance with the PAT Rules. I reject the claimant’s submission that the 28 September letter could be the “appropriate form” envisaged by rule 4 of the 1980 Rules; that is clearly a form produced by the Secretary of State.

43. I do not consider that PAT rule 4 intended to make mere non-use of the appropriate form fatal in itself. That issue is illuminated by the authorities discussed by Stanley Burnton J in R (Secretary of State) v Pensions Appeal Tribunal, in particular R v Immigration Appeal Tribunal ex p Jeyeanthan [2000] 1 WLR 354. In that case the Secretary of State had purported to appeal to the Immigration Appeal Tribunal but had not used the prescribed form. As to whether this invalidated the appeal, Lord Woolf MR posed three questions to be answered in a case where procedural rules had not been formally complied with: (1) had the procedural requirement nevertheless been substantially complied with? (2) if not, what did the author of the rule intend to be the procedural consequences of the non-compliance in the circumstances (the circumstances including what had in fact been done, albeit irregularly)? and (3) could any non-compliance be cured or waived? Questions (2) and (3) seem to me to have a degree of overlap, but question (3) directs attention, in particular, to any provision in the procedural rules in question that deals with irregularities.

44. In my judgment the 28 September letter did not substantially comply with rule 4: the requirement in PAT rule 4 to bring an appeal using a particular form cannot be said to be substantially complied with merely by a letter asking for the form.

45. Lord Woolf’s second question then involves asking whether the PAT Rules intended that a letter in the terms of the 28 September letter should be effective to bring an appeal despite its non-compliance with rule 4. I do not find it possible to ascribe that intention to the Rules. The main difficulty that the claimant faces is that the letter (the relevant parts of which I have quoted in paragraph 3 above) cannot be regarded as a document initiating proceedings but only as a document signifying an intention to initiate proceedings in the future – by completing the appeal forms. It has rightly not been suggested that the Agency could have been expected to respond to the letter by setting in train the procedure in PAT rule 5; as a matter of fact, this case (and the 28 September letter) only came before the tribunal by virtue of the appeal purportedly but, it is common ground, invalidly initiated by the March 2009 appeal form. Nobody has ever regarded the 28 September letter as a document intended to initiate proceedings.

Deficiency curable under the Rules?

46. Lord Woolf’s third question asks whether the deficiency (i.e. failure to supply the prescribed form) was capable of being cured either under rule 37 of the PAT Rules or rule 7 of the Chamber Rules, referred to at paragraphs 21 and 25 above.

47. It does not seem to me ultimately to make any difference in the present case whether old rule 37 or new rule 7 is applied.

The PAT Rules

48. Old rule 37 refers to non-compliance with the PAT Rules not rendering proceedings void unless the tribunal or President so directs. To apply the rule it is necessary to analyse the nature of the non-compliance in question. The 28 September letter did not of itself amount to any non-compliance with any of the PAT Rules; the non-compliance consisted in failure to follow it up with the appeal form within the time limit. That was not non-compliance with the PAT Rules but with the time limit in the primary legislation; it is not therefore curable under rule 37.

49. Moreover, even if the letter could be regarded as an irregular appeal form, I agree with the Secretary of State that it is impossible to regard it as having, albeit defectively, set in train proceedings within the meaning of PAT rule 37; that is for the reasons I gave in paragraph 45 above. Rule 37 assumes there are proceedings in existence, and cannot be used to turn a document that does not initiate proceedings into one that has done so.

Is it possible to regard the issue, after 3 November 2008, as one of compliance with Chamber rule 21?

50. The claimant’s primary contention is that the question for the First-tier Tribunal, sitting in July 2010, was whether the 28 September letter complied with Chamber rule 21 and/or any irregularity could be waived or cured under Chamber rule 7; the letter did comply with rule 21 or, to the extent that it failed to set out the claimant’s grounds of appeal, that deficiency could be waived or cured under rule 7.

51. I have already noted that the 28 September letter only came before the tribunal as a result of being part of the papers in the appeal purportedly but invalidly commenced by the 2009 Notice of Appeal. There is therefore a considerable degree of artificiality in treating it (as the claimant’s argument must) as the document that initiated the proceedings.

52. I reject the submission that the 28 September letter complied with rule 21 despite the omission of grounds of appeal. The terms of the decision letter were unhelpful (as well as ungrammatical) but did not prevent the claimant saying on what grounds she was entitled to a widow’s pension.

53. I do not accept that the tribunal had no power to apply any rules at all; it had before it proceedings that had been purportedly brought (albeit by the March notice of appeal that was plainly out of time) and it was required to ask itself whether it had the power to waive any irregularities in order to further the over-riding objective.

54. But in my judgment the claimant’s argument under rule 7 faces an insuperable difficulty: there is power to waive irregularities in a notice of appeal, but before the tribunal can embark upon the exercise of waiving irregularities, it must have before it a notice of appeal. The tribunal could not waive the lateness of the March 2009 notice; it follows that, before consideration could be given to waiving irregularities in the 28 September letter, that letter had to be capable of being regarded as an irregular notice of appeal.

55. The Secretary of State submits that questions of the legal effect of the letter are to be answered by reference to the old rules, in force at the time it was sent. The submission has a logical attraction, but in my view the flexibility afforded by the Chamber Rules did allow the tribunal, considering whether it could waive irregularities under rule 7, to consider the extent to which the letter met the requirements of rule 21. But that does not assist the claimant: rule 21 requires a document that, even if irregular, can be regarded as notice of appeal. In order to be regarded as a notice of appeal – which is by definition a document initiating proceedings under the Chamber Rules - the document must, even if it omits some of the content required by regulation 21 of the Chamber Rules, at the very least indicate to the reader that it is a document intended to set in train an appeal to the Tribunal. The 28 September letter failed to do that, for the reasons I have mentioned in paragraph 45 above. Again, the letter is not the sort of letter that the Agency could be expected to forward, with its response, to the tribunal under rule 23.

56. For these reasons I consider that the First-tier Tribunal was wrong to regard the fact that the 28 September letter was not the “appropriate form” as fatal in itself; it needed to consider whether it could and should use its power in rule 7, which involved consideration of the extent to which the letter met or did not meet the requirements of rule 21. However, if it had done so, the only conclusion that it could have come to is that the letter was not an irregular appeal form under PAT rule 4 and could not be viewed as an irregular notice of appeal within the meaning of the Chamber Rules.

57. I reach this conclusion without great enthusiasm since, while the solicitors were not blameless, the failure to give valid notice of appeal within the time limit was in my view the result of a chapter of accidents; it produces the consequence that the merits of the claimant’s claim will not be investigated. But time limits serve an important function in themselves; there is a clear policy choice, both in section 8 of the 1943 Act and in Chamber rule 21, that the time limits are absolute; and to circumvent the time limit by treating a document that plainly did not seek to initiate proceedings as one that did would in my judgment be unprincipled.

58. I turn finally to the questions posed in the First-tier Tribunal’s decision. It is always dangerous to attempt to decide issues in the abstract. I can only safely attempt answers at a fairly high level of generality.

59. As to whether the new Rules are “retrospective” in transitional cases, paragraph 3 of schedule 4 to the Transfer of Tribunal Functions Order (set out at paragraph 26 above) seems to me to envisage that the Chamber Rules apply save to the extent that they are “disapplied” in a particular case pursuant to that provision. There is accordingly no absolute bar on their “retrospective” application, but the tribunal has power to disapply particular Chamber Rules or (conceivably) those Rules as a whole in the interests of justice. It would almost certainly be unjust to fail to disapply a Chamber rule if the consequence was to penalise a party for non-compliance with a rule that did not exist at the time the action in question was taken. And as I have said above, the question of the legal effect of an act done (and in particular its compliance or otherwise with a rule) can only sensibly be considered by reference to the rule applicable at the time. Apart from those fairly obvious propositions, it is not appropriate to encrust paragraph 3 of the schedule with rigid rules; the tribunal should be guided by its sense of the justice of the case.

60. As regards the tribunal’s second question, it would be particularly dangerous for me to attempt to determine in the abstract the extent to which information required by Chamber rule 21 can be dispensed with. The guiding principles are in Chamber rule 7, which directs the tribunal to be guided by what it considers just, and in the over-riding objective. But there is a lower limit: the document must be capable of being viewed as an (irregular) notice of appeal. For the tribunal to confer jurisdiction upon itself by using the power to waive irregularities so as to convert something that was not a notice of appeal into a notice of appeal would, as the Secretary of State submits, be to assume a jurisdiction that the tribunal does not have.

61. If the third question is asking whether the tribunal could properly allow the appeal to proceed, the answer has to be ‘no’ for the reasons given above.

Nicholas Paines QC

5 August 2011

	[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	Upper Tribunal (Administrative Appeals Chamber)
You are here: BAILII >> Databases >> Upper Tribunal (Administrative Appeals Chamber) >> JA -T v Secretary of State for Defence (AFCS) [2011] UKUT 323 (AAC) (05 August 2011) URL: http://www.bailii.org/uk/cases/UKUT/AAC/2011/323.html Cite as: [2011] UKUT 323 (AAC)

Upper Tribunal (Administrative Appeals Chamber)