Shipp v The Minister of Pensions

 Shipp v The Minister of Pensions

The Minister of Pensions v Pretty

CONSTITUTIONAL; Armed Forces: PENSIONS: ADMINISTRATION OF JUSTICE; Courts

KING’S BENCH DIVISION

DENNING J

29, 30 JANUARY 1946

Royal Forces – Pension – Disability existing before or arising during war service aggravated by and remaining aggravated by war service – Appeal –

Jurisdiction – Pensions Appeal Tribunals Act, 1943 (c 39), s 1, 5 – Royal Warrant concerning Retired Pay, Pensions, etc, 1943 (Cmd 1943, No 6489), arts

2(3), 4.

The appellant, Shipp, was discharged from the army on 5 December 1940, on account of defective vision, which had admittedly originated in infancy. A

claim to a pension, made on 4 December 1940, was rejected by the Minister of Pensions. A further claim made on 1 June 1944, was also rejected by the

Minister, and on this occasion an appeal was made to a Pensions Appeal Tribunal. The terms of reference were (a) whether the appellant’s disability,

defective vision, was attributable to war service, and, if not (b) whether it existed before or arose during war service and had been and remained aggravated

thereby. The tribunal found as a fact that the disability had been aggravated by, and had remained aggravated by, war service until December 1943, and

allowed the appeal in respect of the earlier part of the period covered by the claim in respect of which the claim had been wrongly rejected by the Minister.

The respondent, Pretty, was discharged from the army on 28 September 1943, the disease which led to his discharge being duodenal ulcer, which was not

noted in the medical report made on him at the commencement of his war service. On 22 September 1944, a Pensions Appeal Tribunal decided that the

respondent’s duodenal ulcer was not attributable to war service, but existed before or arose during war service and had been aggravated by such service, and,

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on 28 September 1943, the date of the respondent’s discharge, remained aggravated thereby. The Minister of Pensions thereupon awarded a pension to the

respondent with effect from 29 September 1943, to 21 September 1944. The Minister refused to make any further award and the respondent again appealed to

a Pensions Appeal Tribunal. The Tribunal was asked to decide whether the respondent’s disability, duodenal ulcer, remained aggravated on 22 September

1944, or any later date. The Tribunal decided that they had no jurisdiction to decide whether or not the respondent’s disability remained aggravated on 22

September 1944, or any later date. The appeals raised a question as to the true interpretation and application of the words of the Pensions Appeal Tribunals

Act, 1943, s 1, and art 4 of the Royal Warrant concerning Retired Pay, Pensions, etc, of 4 December 1943, with regard 􀂭 417􀀉 to cases where the disablement

was due to disease which existed before or arose during war service “and has been and remains aggravated thereby”:—

Held – (i) on a true interpretation of the section and the article, the Minister, and on appeal, the Pensions Appeal Tribunal, could deal not only with existing

disablement and aggravation, but also past disablement, and past aggravation.

(ii) in the case of the appellant, Shipp, having regard to the claim which was made in December 1940, the only matter before the Minister and before the

Tribunal was whether his bad eyesight was aggravated at that time by his war service, and the Tribunal ought not to have gone on to limit their award to any

particular period; the Tribunal had therefore exceeded its jurisdiction and the appeal should be allowed.

(iii) in the case of the respondent Pretty, the Tribunal were wrong in point of law in holding that they had no jurisdiction to deal with his claim that from

22 September 1944, onwards his disease had been aggravated by war service; they had jurisdiction to deal with it and the appeal should therefore be allowed.

Notes

It is inequitable that a right to a pension should be lost because the aggravation of a disablement has ceased before the time for adjudication by the Minister. It

is held, therefore, that the Minister has to that extent jurisdiction to adjudicate upon a past disablement or aggravation. An award once given extends into the

future and may be the foundation of an appeal to the Pensions Appeal Tribunal against a decision of the Minister that the disablement has ceased.

For the Pensions Appeal Tribunal Act, 1943, s 1, see Halsbury’s Statutes Vol 36, p 482.

Appeals

Appeals by way of case stated from the decisions of Pensions Appeals Tribunals. The facts are sufficiently set out in the judgment.

Rt Hon H U Willink KC and H V Lloyd-Jones for the appellant Shipp.

C L Henderson KC and Hon H L Parker for the Minister of Pensions.

G H Crispin for the respondent Pretty.

30 January 1946. The following judgment was delivered.

DENNING J. These two cases raise a question as to the true interpretation and application of the words of sect 1 of the Pensions Appeal Tribunals Act, 1943,

and art 4 of the Royal Warrant of 4 December 1943, with regard to cases where the disablement is due to disease which existed before or arose during war

service “and has been and remains aggravated thereby.” A good deal of confusion seems to have arisen on the true interpretation of those words, particularly

the words “and remains,” and the case stated asks for a decision as to which of the various interpretations which are submitted are correct in law, or what other

interpretation is correct; and before I deal with the particular cases I shall endeavour to answer that question.

The aggravation of disease owing to war service may exist on a man’s discharge from the army, but the aggravation may end before a claim is made; or it

may end after the claim is made, but before the Minister gives his decision certifying it or rejecting it. A literal interpretation of sect 1 of the 1943 Act and art

4 of the Royal Warrant appears to indicate that aggravation must remain at the date of the Minister’s decision; but that is an interpretation which I reject,

because it cannot have been intended. It is a general principle that a man who makes a claim is not to be prejudiced by any delay of the adjudicating authority,

and it is impossible to take the date of the Minister’s decision as the material date. The suggestion has been made that it should be the date of the claim itself,

so that the aggravation must remain at that date, but there is no justification for that suggestion in the language of the Warrant. It also produces injustice,

because there is no reason why a man who may be delayed in making his claim should be deprived of his rights. The key to the right interpretation, in my

view, is to be found in art 2(3) of the Royal Warrant, which says:

‘Any condition or requirement laid down in this our warrant for an award, or the continuance of an award, shall, except where the context otherwise

requires, be construed as a continuing condition or requirement.’

It follows that the conditions or requirements in art 4 are to be construed as continuing conditions or requirements, and “continuing” relates both to the

past and to the present. Art 4 deals with what, no doubt, was considered to be the usual case, where the aggravation is in fact continuing at the time when

􀂭 418􀀉 the Minister gives his certificate. But, having regard to art 2(3), I think it must be applied in a continuing sense, by making it applicable, not only to

existing disablement and existing aggravation, but also to past disablement and past aggravation. So, in my view, not only does it read, in relation to the

present, as it stands,

‘Provided it is certified that the disablement is due to a wound, injury or disease which (i) is attributable to war service; or (ii) existed before or arose

during war service and has been and remains aggravated thereby.’

But it also must be read in relation to the past, in this way:

‘Provided it is certified that the disablement was due to a wound, injury or disease which (i) was attributable to war service; or (ii) existed before or

arose during war service and had been and remained aggravated thereby.’

That is, remained during the period of disablement.

I think the section must be read in the same way as the Warrant. It follows that not only existing disablement and aggravation can be dealt with by the

Minister, and on appeal by the Tribunal, but also past disablement and past aggravation. The Minister cannot give a certificate as to future aggravation or

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future disablement, because it is not possible to deal in advance with that matter; but once a certificate of existing disablement and aggravation is given, an

award can be made which will continue in the future. If the Minister should stop payment on the ground that aggravation has ceased, the man can make a

fresh claim, saying that the aggravation remains, and, if it is rejected, he can appeal to the Tribunal.

So I find that it is possible on the wording of the Warrant and the Act for a certificate to be given in respect of a past period, as, for instance, where

disablement is not claimed to be continuing, or where it is claimed to be continuing but found not to be so. The matter, of course, has to be dealt with in

relation to the claim. Sect 1 of the Act shows that the issue before the Minister is whether to grant or reject the “claim,” and the issue before the Tribunal is

whether the “claim” was rightly rejected. If a man puts in his claim at the time of his discharge, as in Shipp’s case, saying that he is disabled, and that it is due

to disease which existed before war service and has been and remains aggravated thereby at the date of his claim, which in his case was 4 or 5 December 1940,

then that is the matter to be determined, and upon which the Minister has to certify or reject, or on appeal the Tribunal has to decide; and in Shipp’s case that

was all the Minister or the Tribunal should have dealt with. If the claim had been only made by him in June of 1944, and made then for the first time, the man

would probably have made his claim then that the disease had been aggravated by war service, and remained at that date aggravated by war service. If that

was the matter before the Minister and before the Tribunal, a decision could be given as to whether it remained aggravated at that date, and if it had ceased, the

proper period could be assessed in respect of which the aggravation had continued.

In Pretty’s case the Tribunal on 22 September 1944, determined that his disease had been aggravated by war service as on 28 September 1943, the date of

his discharge from the army; they did not determine anything as to any period, and the Minister eventually refused to pay any pension after 22 September

1944, because he thought that the aggravation had passed away. The decision of the Tribunal was on 22 September 1944. They had no jurisdiction to deal

with the future, and, as I have said, they only dealt with the matter as at 28 September 1943. But when the Minister, as from 22 September 1944, declined to

pay the pension, on the ground that the aggravation had ceased, Pretty made a fresh claim, on which he could require the Minister to adjudicate, and on appeal

he could go again to the Tribunal. In that way the Tribunal had jurisdiction to determine whether the aggravation continued after 22 September 1944.

It has been suggested in the course of argument that some of these appeals should be to a Tribunal constituted under sect 5 of the Pensions Appeal

Tribunals Act, 1943, when that section is brought into operation. But I would point out that there is a difference between the question of aggravation (which

involves the question whether the aggravation is due to war service) and the question of disablement. 5 September is only dealing with the question of

disablement, which, as the definition in the Warrant shows, is really a medical matter; whereas aggravation by war service is not solely a medical matter,

because it involves the 􀂭 419􀀉 question of causation. When the matter gives rise to any question whether a disease remains aggravated by war service, that is

a matter in which the appeal is properly to a Tribunal under sect 1 of the Act, and not under sect 5. I visualise that most cases arising under sect 5 would be

cases where the man’s disablement was not merely an aggravated disease, but a disease attributable to war service, and in such a case, when the question arose

as to whether disablement had come to an end, it would not be a question of causation due to war service, but it would be a medical question, and that question

would come under sect 5 of the Act.

I think that covers the points which have been raised before me. My decision in Pretty’s case is that I hold that the Tribunal were wrong in point of law

in holding that they had no jurisdiction to deal with Pretty’s claim that from 22 September 1944, onwards his disease had been aggravated by war service.

They had jurisdiction to deal with it, and I allow the appeal.

In Shipp’s case I have already answered the question, saying what, in my view, is the correct interpretation of sect 1 of the Act and of the Royal Warrant.

On the facts of that case, having regard to the claim which was made by Shipp in December 1940, the only matter before the Minister and before the Tribunal

was whether his bad eyesight was aggravated at that time by his war service, and the Tribunal in the circumstances ought not to have gone on to limit their

award to a particular period. That was not before them; and, indeed, it has been pointed out to me that the surgeon who gave an opinion on behalf of Shipp,

did not deal with the period at all, he only dealt with the question of aggravation by war service. It would be contrary to justice to limit the period, when Shipp

had no notice that that point was to be considered, and no opportunity of dealing with it. This means that the Tribunal exceeded its jurisdiction, and on that

ground I allow the appeal.

Appeals allowed.

Solicitors: Ranger, Burton & Frost (for the appellant Shipp); Culross & Co (for the respondent Pretty); Treasury Solicitor (for the Minister of Pensions).

R Boswell Esq Barrister.

[1946] 1 All ER 420