War pensions – widow’s pension – whether constant attendance allowance or unemployability supplement can have been “payable” to the deceased if successful claim not made by him – whether appeal in respect of widow’s pension can be treated as a posthumous appeal in respect of constant attendance allowance
War pensions – constant attendance allowance – eligibility when a need for attendance arises both from accepted conditions and from another condition
In all three cases the claimant was the widow of a former member of the Armed Services who had been receiving payments of retired pay or pension under article 6 of the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 2006 based upon their having either 90 per cent or 100 per cent disablement. Each of the deceased had claimed constant attendance allowance (CAA) but the claims had been disallowed and they had not appealed. All three claimants applied for a war widow’s pension under article 23 of the Order but were unsuccessful. In each case the Secretary of State decided that the deceased’s death was not due to service. He also received advice that the deceased would not have satisfied the conditions for entitlement to CAA for at least 26 weeks before his death had he made another claim.
The claimants all appealed to the First-tier Tribunal (F-tT). In the first case, the claimant having referred to allowances that her husband had had, the Secretary of State said that the deceased had had an underlying entitlement to unemployability supplement but submitted that it was not “payable” for the purposes of article 22(4) so as to entitle his widow to a widow’s pension because he had had an allowance for lowered standard of occupation. The F tT awarded a widow’s pension on the ground that the deceased had satisfied the conditions for entitlement to CAA for at least 26 weeks before his death because his needs for attendance had arisen not only from lung cancer that was not attributable to service but also from conditions attributable to service. In the other two cases too, the F-tT considered whether the deceased had satisfied the conditions for entitlement to CAA for at least 26 weeks before his death, allowing one appeal on the ground that the deceased had done so and that therefore article 22(3) was satisfied but dismissing the other on the ground that the deceased had not done so.
The Secretary of State appealed to the Upper Tribunal (UT) in the first two cases and the claimant in the other. The UT allowed the claimant’s appeal in the third case on the ground that the F-tT had failed to give reasons for not finding that the deceased’s death had been due to service but deferred consideration of the question of the scope of the remitted appeal. In all three cases, the Secretary of State submitted that his practice of awarding a pension to a widow whose husband’s disablement had been assessed as at least 80 per cent if he would have satisfied the conditions for entitlement to CAA for at least 26 weeks before his death had he made a claim was a concession made under the dispensing instruments and that article 22(3) of the Order had not been satisfied in any of the cases because CAA was not “payable to [the deceased] in respect of a period ending with his death”.
Held, allowing the Secretary of State’s appeals and giving a further direction in the claimant’s appeal, that:
the right of appeal in section 1(3) or (3A) of the Pensions Appeal Tribunals Act 1943 against a decision that death was not due to service extended to a decision that death could not be treated as having been due to service (paragraph 13);
CAA could not be regarded as “payable” for the purposes of article 22(3) of the 2006 Order unless there had been a successful claim for the allowance (which could be determined posthumously) because article 34 required there to be a claim for CAA before an award could be made (paragraphs 18 to 22);
similarly, unemployability supplement was not “payable” to the first claimant’s husband for the purposes of articles 15(4) and 22(4) of the 2006 Order because there had been no claim for it, whereas “eligible” in articles 15(5) and 27(1)(b)(ii) meant “entitled but for having made a claim” (paragraphs 33 to 36);
an appeal against a rejection of a widow’s pension claim could be treated as having been also a posthumous appeal against the rejection of a claim for CAA, provided that the appeal had been made within the time limit for such a posthumous appeal, and the claimants in the first two cases would be treated as having brought such appeals, the third claimant having been irredeemably out of time for doing so (paragraphs 40 and 48 to 60);
there was no right of appeal under section 1(3) or (3A) of the Pensions Appeal Tribunals Act 1943 against a decision not to make a payment under a dispensing instrument, even if the decision was expressed in terms of the deceased’s death not being treated as having been due to service (paragraphs 77 and 78);
while article 8 of the 2006 Order did not directly address dual causation in relation to CAA, considering whether the “accepted disablement” was the main factor in the overall need for attendance was an approach capable of taking account of the extent to which different disabilities might interact with each other (paragraph 107);
in the first case, the F-tT had given inadequate reasons for finding that the deceased had been eligible for CAA before his death because it had not made a finding as to whether the contribution of his disablement due to the accepted conditions was sufficient to have qualified him for at least the part day rate of CAA (paragraph 108).
In the Secretary of State’s appeals, the judge set aside the decisions of the F-tT, remitting the first case to the F-tT and directing a further submission in the second case. In the third claimant’s appeal, the judge directed that the remitted case be decided in accordance with his reasoning, so that whether her husband had been eligible for CAA in the period before he died was irrelevant to her entitlement to a widow’s pension.