IN THE UPPER TRIBUNAL Case No: CAF/2196/2014

ADMINISTRATIVE APPEALS CHAMBER

 

 

 

DECISION BY THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

 

 

The DECISION of the Upper Tribunal is to allow the appeal.

 

The decision of the First-tier Tribunal (War Pensions and Armed Forces Compensation Chamber) dated 7 January 2014 under reference SD/00097/2013 involved the making of an error on a point of law.

 

The tribunal’s decision is set aside and the case remitted to the First-tier Tribunal for rehearing before a differently constituted tribunal in accordance with the directions set out at the conclusion of these Reasons.

 

 

REASONS

 

Introduction

 

1.        This appeal raises an important issue about the Constant Attendance Allowance [CAA] payable by reason of Article 8 of the Naval, Military and Air Forces Etc (Disablement and Death) Service Pensions Order 2006 (SI 2006/606) [“the SPO”]. How should the Respondent Secretary of State and the First-tier Tribunal [“the tribunal”] interpret and apply Article 8(4)(a)) of the SPO and, in particular, how should they interpret the words “attendance on two or more occasions per night”? I have concluded that this phrase means attendance on two or more occasions each night. I thus reject the Appellant’s case that he did not need to demonstrate that he consistently met the requirement of two or more attendances each night.

 

2.        However I allow the appeal on the basis that the tribunal’s reasons were inadequate to explain its decision. It failed in its inquisitorial function by not establishing what constituted “attendance” on this Appellant at night. It failed to address and resolve the complaints made by the Appellant about the medical examination conducted on behalf of the Respondent. Finally it failed to mention any of the medical evidence produced by the Appellant which was of relevance both as to the frequency and to the nature of attendance at night. In this case brevity of reasoning was not a virtue.

 

3.        I remit this matter to the First-tier Tribunal for rehearing by a differently constituted tribunal.

 

Background

 

4.        The Appellant is a former soldier who served in the Royal Engineers between 17 September 1969 and 31 October 1982. There is no dispute that his physical and mental health injuries are attributable to service and are such that he has an entitlement both to a war pension and to CAA at the full day rate.

 

5.        On 1 August 2012 the Appellant, assisted by his wife, claimed that his need for attendance had increased since he now needed significant attendance during the night. In his claim form dated 25  September 2012 the Appellant stated that help was needed (a) seven days a week, once or twice a night to change sheets or nightclothes; (b) four nights a week, once or twice a night, helping with incontinence; and (c) seven nights a week, once a night taking tablets/having injections or other treatment. The Appellant stated that he also needed watching over full-time seven nights a week for a combination of several reasons including the risk of hurting himself or someone else and the effect on him of nightmares.

 

6.        On 10 January 2013 a medical examination was carried out at the Appellant’s home. This concluded that attendance in connection with personal needs was required seven nights a week for about thirty minutes on one occasion per night and for two hours during the day. Attendance was also said to be required to supervise the Appellant for eight hours a day on account of his panic attacks, paranoia, delusions, self-harming and suicidal behaviour. Rather surprisingly given the Appellant’s mental health problems, no such supervision was required at night.

 

7.        The Respondent decided on 20 March 2013 that there should be no increase in the Appellant’s award of CAA as the Appellant’s needs did not fall within either of the two subsections of Article 8(4). The Appellant’s appeal against this decision was received on 26 April 2013.

 

8.        In September 2013 the Appellant’s wife wrote in support of his appeal and also sent medical evidence in the form of letters and reports from the doctors treating the Appellant.  Enclosed with her letter was a diary of the care she provided for her husband at night time which she had been advised to keep by the Royal British Legion in connection with the appeal. The diary was undated but covered a period of 15 days.

 

9.        On 10 October 2013 having considered the material supplied by the Appellant’s wife, the Respondent maintained his earlier decision of 20 March 2013 that there should be no increase in the Appellant’s CAA.

 

The Tribunal Decision

 

10.     The tribunal held an oral hearing of the appeal on 7 January 2014 which was attended by the Appellant and his wife. Both the Appellant and the Respondent were represented and the Appellant and his wife gave oral evidence. The tribunal confirmed the Respondent’s decision and dismissed the appeal.

 

11.      I reproduce the tribunal’s decision in full as it is very short:

 

“1. The Tribunal notes that the Appellant had been awarded a Service Pension under the SPO 2006 and that his level of disablement is currently assessed at 100%.

2. The Appellant attended the appeal hearing with his wife, Mrs [name omitted]. They both gave detailed oral testimony explaining the extent to which Mrs [ ] is obliged to attend upon and assist her husband in meeting his daily needs.

3. The tribunal notes that the Secretary of State accepts that Mrs [ ] does attend upon her husband for at least 8 hours during the daytime but does not accept that she attends upon him on two or more occasions per night. It was for that reason that the Secretary of State concluded that the provisions of Article 8(4)(a) of the SPO were not met and that no award for CAA at the Intermediate Rate can be made.

4. Mrs [ ], who the Tribunal found to be a reliable and truthful witness, explained that the diary which she had kept of night time attendances was not the complete picture of the assistance she is required to give her husband each night. However, when asked by the Tribunal the extent of night time assistance she gave her husband she said that in a four week period she was required to assist him on two occasions per night for only 80% of the time.

5. In order to be entitled to an award for CAA Intermediate Rate under Article 8(4)(a) of the SPO 2006, the Appellant must demonstrate that in addition to “frequent or regular attendance for periods during the daytime which total not less than 8 hours per day”, a fact which the Secretary of State accepts, he must also demonstrate “attendance on two or more occasions per night”. Based upon the reliable testimony of Mrs [ ] we find that the evidence does not disclose that she is always obliged to attend upon her husband on two or more occasions per night. We accept that there may be times when she is required to attend upon him on two or more occasions per night but this is only for 80% of the time and is not therefore a constant requirement.

6. Based upon the above findings we are satisfied that the Appellant has failed to discharge the burden of proof in establishing an entitlement to CAA at the Intermediate Rate under Article 8(4)(a) of the SPO 2006.

7. We are therefore obliged to dismiss the appeal.”

 

12.     The record of the tribunal includes the notes of evidence kept separately by each member of the tribunal. The note compiled by the judge has an uncompleted comment about percentages. Later there is a note which records “on other occasions I can be up twice a night – one cannot say it is every night this happens”. The note compiled by the medical member states starkly “no evidence for attendance twice a night”. The fullest note was kept by the service member who recorded “no pattern to night problems – could be 3/5 a week with no problems then 2-3 weeks every night. Sometimes twice a night no set pattern”.  That note records later “over month 80-85% twice a night. Nightmares change bed – night sweat – soiled bedding. Sometimes more than one nightmare”.

 

The Appeal to the Upper Tribunal

 

13.     The Appellant’s wife asked the First-tier Tribunal for permission to appeal. She produced further evidence about the Appellant’s distressed behaviour at night which was not before the tribunal. Permission to appeal was refused by the First-tier Tribunal on 12 March 2014 and an application for permission to appeal was made to the Upper Tribunal.

 

14.     Upper Tribunal Judge Williams granted permission to appeal on 29 May 2014, stating that “the picture that appears to have emerged here, as the tribunal saw it, is that the appellant requires and receives help from his wife every night but receives it on two or more occasions on 80 per cent of nights not 100 percent. In my view it is open to argument whether that is the correct approach in law to regulation 8”.

 

15.      On 16 December 2014 Upper Tribunal Judge Williams held an oral hearing of the appeal at Llangefni County Court. The Appellant and his wife attended and were represented by Mr Tucker from the Royal British Legion. Unusually the Respondent did not attend the hearing and was not represented though he had in fact requested that a hearing of the appeal take place. Upper Tribunal Judge Williams proceeded with the hearing in the Respondent’s absence. On 22 December 2014 a representative of the Treasury Solicitor rang the Upper Tribunal’s office to enquire when the hearing was to be held and was told that it had taken place. He wrote the same day drawing attention to the fact that no notice of the hearing had been received by the Respondent.

 

16.     In fact Upper Tribunal Judge Williams signed a decision on 18 December 2014 which, in these circumstances, was not issued. Upper Tribunal Judge Lloyd-Davies directed on 3 March 2015 that this decision should not be issued and that a new hearing should take place in North Wales.  Mr Tucker was given an opportunity to comment on the direction and, whilst expressing the distress of both the Appellant and his wife at the prospect of another hearing, he accepted that this was the correct course to take.

 

17.     Unfortunately it proved to be impossible to list this matter for hearing in North Wales. Instead I sat at Manchester Civil Justice Centre on 5 June 2015 to hear this appeal. The Appellant and his wife attended and, as before, Mr Tucker appeared on the Appellant’s behalf.  Mr Adam Fullwood of counsel represented the Respondent. I am very grateful to both representatives for their assistance.

 

18.     At the conclusion of the hearing, I gave directions for further written submissions from the parties to address, amongst other matters, the genesis of Article 8 of the SPO and the adequacy of the tribunal’s reasoning. I also asked for a complete copy of the Examining Medical Practitioner’s report of January 2013 as the report in the tribunal’s bundle was incomplete. Some delay then ensued but all submissions were complete by 21 September 2015. I regret that this decision has been somewhat delayed by a combination of my other judicial duties and leave.

 

The Relevant Legislation and Guidance

 

19.     The SPO came into force on 10 April 2006. Prior to that date Article 14 of the Service Pensions Order 1983 made provision for entitlement to CAA which was payable at two rates, the normal maximum payment rate and the exceptional payment rate. The level of attendance required to qualify for each of these rates was not defined in Article 14. Additionally, though only two rates for payment were set out in Article 14, the Respondent had, in his discretion, decided that CAA should be awarded at one of four rates, the precise choice being dependent on the level of constant attendance required in the individual case. The date on which the Respondent made discretionary provision for four rates of CAA is unclear to me. No statutory right of appeal existed against the Respondent’s decision either to reject a claim for CAA or against his decision as to the rate of CAA payable.

 

20.     In August 2000 the War Pensions Agency issued a consultation paper entitled “Proposals for Amendments to War Pensions Legislation – Discussion Paper 2”. The paper noted that two of the rates of CAA were discretionary and stated that it was proposed to formalise the position by incorporating these rates into the 1983 Service Pensions Order. Additionally clarity was to be brought to Article 14 by defining the level of care needed for each rate of CAA payable. A statutory right of appeal was also proposed in respect of decisions about entitlement to CAA. These proposed changes were brought into force by the Naval, Military and Air Forces Etc (Disablement and Death) Service Pensions Amendment Order 2001. 

 

21.     Article 8 of the SPO is entitled “Constant Attendance Allowance”. This allowance may be awarded to a war disablement pensioner whose pensioned disablement has been assessed at 80% or more and who, because of that disablement, requires a large measure of regular attendance of a personal nature. CAA is paid at one of four rates depending on the level of attendance required. Article 8(1) reads as follows:

“Subject to paragraph (6) and article 71(4), where –

(a)  a member of the armed forces is in receipt of retired pay or a pension in respect of disablement the degree of which is not less than 80%; and

(b)  it is shown to the satisfaction of the Secretary of State that constant attendance on the member is necessary on account of the disablement

the member shall be awarded an allowance in accordance with the following paragraphs of this article.”

 

22.     Article 8(4)(a) is the provision in issue in this appeal and concerns entitlement to the intermediate rate of CAA. Article 8(4) reads as follows:

“Where the necessary attendance consists of –

(a)  frequent or regular attendance for periods during the daytime which total not less than eight hours per day and attendance on two or more occasions per night; or

(b)  frequent or regular attendance for periods at night which total not less than eight hours and during the daytime for periods which total not less than four hours per day

the rate of the allowance shall be the intermediate rate specified in paragraph 1(a)(iii) of Part IV of Schedule 1.”

 

23.     The SPO does not define what is meant by “attendance” in Article 8(1)(b). A Guide to War Pensions Policy [“the Guide”] contains guidance on CAA for decision makers. The Guide was produced in accordance with my direction that I should receive the guidance relied on by the Respondent’s decision maker in reaching the decision made on 20 March 2013 not to award the Appellant the intermediate rate of CAA. As Mr Tucker observed in his supplemental written submissions, this part of the Guide - though dated December 2002 - has not been updated to take account of either the changes made in 2001 to Article 14 of the 1983 SPO or the consolidation of the 1983 SPO into the SPO 2006.

 

24.     Paragraph 13206 of the Guide sets out the Respondent’s interpretation of what “attendance” means. I reproduce the paragraph in full as follows:

“He interprets “attendance on him” as the help required from another person in connection with the personal [emphasis as in original text] functions a fit person would normally perform for himself such as dressing, eating, drinking, bathing or going to the toilet. Such help may also be needed where, for instance, bedclothes are regularly soiled through incontinence, or the pensioner has bed-sores, or is bedfast and cannot move without assistance. “Attendance on him” may also mean “supervision” ie someone to keep an eye on the pensioner to prevent him injuring himself or others. It does not include help of a purely domestic nature (eg shopping, housekeeping, getting meals etc). CAA is designed to give extra financial help where the pensioner is so severely handicapped by the nature of his pensioned disablement that he requires someone to assist him with the ordinary and personal requirements of everyday living – the necessities of life.”

 

25.     Paragraph 13215 of the Guide describes the level of attendance normally required to qualify for the intermediate rate as follows:

“Intermediate – where the pensioner is not completely helpless (eg because he has some use in his limbs – particularly the upper limbs) but requires a considerable degree of attendance day and night. Such attendance must be required either during most of the daytime (ie more than 8 hours) and regularly through the night (ie at least twice every night), or frequently through the night and part of the day. Occasional attendance at night will not normally qualify the pensioner for this rate.”

 

The Arguments of the Parties

 

26.     These can be summarised fairly succinctly. The Appellant appealed on a single ground, namely that the tribunal imposed too high a burden upon him in requiring him to demonstrate that he consistently met the requirement of two or more attendances per night so as to satisfy Article 8(4)(a). Mr Tucker submitted that the tribunal erred in law by treating the provisions of Article 8(4)(a) as a “constant requirement” [see paragraph 5 of the tribunal’s reasons]. He relied upon the conclusion of Upper Tribunal Judge Levenson in paragraph 23 of MC v Secretary of State for Defence (WP) [2009] UKUT 173 (AAC) that “the word ‘constant’ in article 8(1)(b) is not an independent condition or concept to be satisfied but is a reference to the more detailed provisions in the conditions of entitlement to each of the various rates of CAA”. Mr Tucker submitted that, when considering the variable attendance needs of the Appellant, the tribunal should have applied “the good sense and judgement” prescribed by the Commissioner in the analogous social security decision, R(A) 2/74. Finally Mr Tucker contended that it was implicit in the grounds of appeal that the tribunal’s reasons were inadequate.

 

27.     The Respondent submitted that the tribunal was correct to conclude as it did.  The Appellant had missed the requisite minimum twice nightly attendance requirement in Article 8(4)(a) by a substantial margin. Article 8 had to be considered as a whole but the meaning and effect of Article 8(4)(a) were clear. The words “attendance on two or more occasions per night” must be given their ordinary meaning applying the rules of statutory interpretation. The words “per night” meant and could only mean every night. Further, the authorities relied on by the Appellant did not assist. In MC v Secretary of State for Defence (WP) [2009] UKUT 173, Upper Tribunal Judge Levenson rejected the suggestion that the heading of Article 8 imported an additional requirement that attendance be non-stop or uninterrupted. In this case neither the Respondent nor the tribunal had interpreted Article 8 as requiring constant and uninterrupted attendance. Both had concluded that the provision of intermittent care could suffice provided that it met the minimum twice nightly requirement of Article 8(4)(a). Additionally R(A) 2/74 was not helpful as in this case the tribunal had heard oral evidence and perused the written evidence and thus, its overall conclusion that the Appellant had not demonstrated the requisite degree of consistency of nightly attendance needs was plainly open to it.

 

28.     Finally the Respondent submitted that the tribunal had provided adequate reasons for its decision. Its reasons identified the relevant legal provisions and reached a conclusion about these. The crucial evidence of the Appellant’s wife’s was identified along with an evaluation of her reliability and the veracity of her evidence. There was no challenge to the tribunal’s finding that the Appellant’s wife was required to assist him on two occasions per night only 80% of the time in a four week period.

 

Discussion

 

29.     I consider first the meaning of Article 8(4)(a) and then the adequacy of the tribunal’s reasoning in this case.

 

Article 8(4)(a)

 

30.     When an ordinary or familiar English word is used in a statutory test and is not defined in the legislation, the test should not be rewritten or paraphrased and the ordinary or familiar word should be construed and applied in its context, having regard to the underlying purposes of the legislation. In this case the ordinary or familiar word under scrutiny is “per” when used in the phrase “attendance on two or more occasions per night”.

 

31.     It is plain that the underlying purpose of Article 8 is to establish entitlement to CAA for the most severely disabled service pensioners by reference to the level of care the pensioner requires either in the day or at night or both in the day and at night. The four rates at which CAA is paid underscores the differentiation between the levels of care set out in Article 8.

 

32.     In that context Article 8(4) must be read as a whole with a particular focus on the provisions of Article 8(4)(a) since this is an appeal against a decision made under that sub-section. I do not need to reach a firm conclusion about the meaning of Article 8(4)(b) since I can look at the two elements of Article 8(4)(a), one of which is not in dispute.

 

33.     There is no dispute between the parties about the first element of Article 8(4)(a) which describes the requirement for “frequent or regular attendance for periods during the daytime which total not less than eight hours per day”. I find that the word “per” in the phrase “per day” is used to mean “every” or “each”. The Appellant clearly satisfied that first element.

 

34.     The second element of Article 8(4)(a) describes the requirement for “attendance on two or more occasions per night”. Consistency with the first element suggests that the word “per” in the phrase “per night” has the same meaning, namely “each” or “every”.

 

35.     Considering Article 8(4) overall, it is clear to me that the level of care required is significant. It might be argued that “attendance on two or more occasions per night” in Article 8(4)(a) could be satisfied by two attendances of short duration which bear little comparison to the care requirements set out in Article 8(4)(b) and thus that Article 8(4) as a whole lacks coherence.  I do not think this criticism is justified since the daytime attendance requirement of not less than 8 hours per day contained Article 8(4)(a) is significant and serves to redress any apparent inconsistency between the two parts of Article 8(4). Further, comparison with Article 8(3) suggests to me that there is a similar balancing between the provisions of Article 8(3)(a) and 8(3)(b).

 

36.     I agree with the Respondent that neither of the authorities relied on by the Appellant assist with the interpretation of Article 8(4)(a). MC v Secretary of State for Defence (WP) [2009] UKUT 173 AAC is irrelevant for the reasons set out in paragraph 26 above.

 

37.     In R(A) 2/74 the Commissioner was required to construe subsection 2(2) of the National Assistance Act 1972 that attendance allowance be payable for periods “throughout which” an applicant satisfied or was likely to satisfy the stipulated conditions of disablement. The Commissioner concluded that the requirement that a condition be satisfied “throughout” the relevant period did not mean that it needed to be satisfied on each and every night. A rigid arithmetical approach was not appropriate since an assessment of whether a condition was satisfied required an assessment of fact and degree. At each end of the scale there could be cases where the decision one way or another was perverse and thus wrong in law but there had to be a large neutral area where a decision either way could not be wrong in law.

 

38.     I remind myself that I must take care when considering principles developed in a case about one benefit in cases of other benefits. I am not persuaded that the “most of the time test” articulated in R(A) 2/74 is directly applicable to CAA given the precise manner in which Article 8(4)(a) is formulated. It seems to me that the “most of the time test” relates to the duration of the need for CAA (as it did for Attendance Allowance) rather than to the satisfaction of the specific care requirements contained in Article 8(4)(a).

 

39.     In conclusion I find that satisfaction of Article 8(4)(a) requires attendance on two or more occasions each night alongside frequent or regular attendance for periods during the daytime which total not less than 8 hours each day. I note that my conclusion accords with the Respondent’s guidance set out at paragraph 13215 of the Guide though I emphasise that I have not felt bound by the contents of the Guide in reaching my own conclusion on the meaning of Article 8(4)(a). 

 

40.     I thus dismiss this ground of appeal by the Appellant.

 

Adequacy of Reasoning

 

41.     I invited submissions on this matter from the parties following the hearing in June 2015 as this issue was not one of the explicit grounds of appeal. I have considered the parties’ written submissions on this issue carefully and have come to the conclusion that the tribunal’s reasoning was inadequate and amounted to a material error of law.

 

42.     First, though “attendance” is not defined in Article 8(1)(b) of the SPO, MC v Secretary of State for Defence (WP) [2009] UKUT 173 (AAC) is authority for the proposition that “attendance”  for the purposes of Article 8 can include supervision and supervision by way of emotional support [paragraph 28 of MC]. I note Upper Tribunal Judge Levenson approved paragraph 13206 of the Guide with the exception of the final four words namely, “the necessities of life” [paragraph 35 of MC]. That paragraph makes clear that attendance may also mean supervision in the sense that someone may need to keep an eye on the pensioner to prevent him injuring himself or others.

 

43.     Given this interpretation of “attendance”, it seems plain that decision makers and tribunals should consider explicitly not just attendance by way of help with personal functions but also attendance by way of supervision in the wide sense set out in MC. In a particular case, the failure to do so may render a decision maker’s reasoning inadequate.

 

44.     The written evidence in this case demonstrated that, at night, the Appellant required assistance with his bodily functions and also supervision by way, for example, of reassurance in order to calm what can only be described as the Appellant’s night terrors [see, for example, pages 31 and 32 of the Appellant’s wife’s diary]. The oral evidence did not distinguish clearly between assistance with bodily functions or supervision and the tribunal’s reasons refer to “night time attendances” and “night time assistance” without being clear what sort of help was required. Some detailed probing by an inquisitorial tribunal about the entries in the Appellant’s wife’s diary was required especially in the light of its finding that the diary which she had kept of night time attendance was not the complete picture of the assistance she was required to give her husband each night. Was some supervision or soothing necessary on occasion in order to forestall a violent outburst before the Appellant awoke? The picture is unclear even on examination of the notes of evidence. That evidence may have given a more rounded picture of the frequency and extent of night time attendance.

 

45.     Second, it is clear that the Appellant took issue with the conclusions of the medical examination conducted on 10 January 2013. The examination was described as “cursory” by the Appellant’s representative [notes of evidence, page 79] and the Appellant’s wife was noted to make “various complaints” about this examination [notes of evidence, page 85].  The tribunal made no reference to this report nor did it attempt to resolve the challenge to the report. Though it might be said that the tribunal did not need to address this issue since it relied on the Appellant wife’s oral evidence, that medical examination formed the principal basis of the Respondent’s case and must have been in the mind of the tribunal when making its decision.

 

46.     Finally, the tribunal was also provided with medical reports from doctors treating the Appellant which described in clear terms his serious problems at night – thrashing around and talking/swearing whilst asleep [page 54, Dr H] – as well as incontinence, severe night sweats and intense panic attacks following nightmares. One letter from Combat Stress, the well-known ex-services mental welfare charity, described its lengthy involvement with the Appellant and went on to record that the Appellant’s wife “had to be constantly alert because when suffering a nightmare Mr [  ] can and does cause her actual physical harm and he is unaware of his actions at the time. Mrs [ ] often has to cover up or disguise using make-up the bruises inflicted on her during these attacks” [page 68]. Though this letter is dated 23 August 2013 and thus post-dated the Respondent’s decision, it was evidence which the tribunal could consider as it related to the Appellant’s increasing need for care over the previous three years. No reference to any of this material was present in the tribunal’s reasons and it is wholly unclear what weight, if any, was placed on this material by the tribunal. I have already made the point in paragraph 44 above that, on the facts of this case, some supervision may have been necessary to avoid injury to others even before the Appellant was awake and requiring attendance with personal functions. The contents of the Combat Stress letter suggest this might have indeed been the case and highlight an area of the evidence relevant to the frequency of attendance at night which was simply not explored in the oral evidence and entirely omitted from the tribunal’s written reasons.

 

47.     In combination, all of the above has led me to the conclusion that the tribunal’s reasons for its decision were inadequate and thus amounted to a material error of law.

 

Conclusion

 

48.     I allow this appeal for the reasons set out above. Moreover I am satisfied that the appropriate order is the setting aside of the tribunal’s decision and the remittal of the Appellant’s case for fresh consideration by a differently constituted tribunal.

 

49.     In my judgment, it would not be in the interests of justice to restrict the scope of the remitted hearing, and so the Appellant is entitled to advance any and all points he wishes on their merits at the fresh hearing.

 

50.     Though the Appellant has succeeded in this appeal, this should not be taken as an indication that he will be successful at any rehearing.

 

51.     I am told by Mr Tucker that the Appellant made another application for an increase in his CAA which was refused by the Respondent on 18 March 2015 and which is now the subject of a separate appeal to the tribunal. Given my decision to remit this appeal for rehearing and given the Appellant’s recent move to live in France, it would be convenient and in the interests of justice for both appeals to be heard together.

 

 

DIRECTIONS

 

 

52.     The rehearing should be an oral hearing and should be arranged within a reasonable time at a venue convenient for the Appellant.

 

53.     This appeal should be listed together with the Appellant’s appeal against the decision of the Respondent dated 18 March 2015.

 

54.     The new First-tier Tribunal should not involve the tribunal judge and members who considered the appeal on 7 January 2014.

 

55.     If the Appellant has any further written evidence to put before the tribunal, it should be sent to the tribunal office at Fox Court, 14 Grays Inn Road, London, WC1X 8HN within one month of the issue of this direction. Any such evidence must relate to the circumstances as they were at the date of the original decision under appeal, namely March 2013.

 

56.     The new tribunal must deal with any procedural questions, as may arise, on their merits.

 

57.     The new tribunal must consider all aspects of the case, both fact and law, entirely afresh and is not bound in any way by the decision of the previous tribunal.

 

58.     These directions may be supplemented by further directions by a Tribunal Judge in the War Pensions and Armed Forces Compensation Chamber of the First-tier Tribunal.

 

 

 

 

 

 

Gwynneth Knowles QC

Judge of the Upper Tribunal

16 October 2015.

 

[signed on original as dated]