The senior president of tribunals and I are today issuing the following joint statement:
We are making this joint statement in recognition of the concerns expressed by members of the armed forces community about the possible impact on the service which the Pensions Appeal Tribunal (PAT) (England and Wales) provides for them as a result of implementing the Act.
To reflect the special nature of a jurisdiction serving those who alone in this country contract with the state to lay down their lives in its service and in recognition of the special relationship between service personnel and the Government as characterised by Command Paper (CM 7424—“The Nation’s Commitment: Cross-Government support to our armed forces, their families and veterans”), it has been decided to establish a ‘War Pensions and Armed Forces Compensation Chamber’ within the first-tier tribunal to ensure that service personnel can benefit from the advantages of being within the new tribunal structure, whilst ensuring that the unique nature of the jurisdiction is not compromised or diluted.
The implementation of the Act will bring benefits to this jurisdiction, including extended rights of appeal, a guarantee of continued judicial independence, the ability readily to draw upon suitably qualified judges and medical experts within the wider tribunal system if required, greater judicial support and influence; a more efficient administrative support; and access to the entire Tribunals Services’ hearing venue network. None of this will be at the expense of the level of service now provided by the Pensions Appeal Tribunal (England and Wales). Our aim in making this statement is to ensure that the armed forces community are reassured that the valued features of the PAT are preserved and protected in the new system.
This joint statement explains the basis on which the work of the PAT (England and Wales) will transfer into the first-tier tribunal under section 30 of the Tribunals, Courts and Enforcement Act 2007, if Parliament approves the draft Transfer of Tribunal Functions Order 2008.
That order transfers the functions of the PAT (England and Wales) into the first-tier tribunal. That tribunal enjoys a statutory guarantee of continued judicial independence under section 3 of the Constitutional Reform Act 2005, as amended by section 1 of the Tribunals, Courts and Enforcement Act 2007. The present PATs do not have such a guarantee although in practice they are independent of Government. The transfer also makes it possible for there to be a further appeal on a question of law against assessment decisions by claimants in all parts of the United Kingdom, something which is not possible under the existing statutory framework.
The first-tier tribunal will be divided into a number of chambers by an order made under section 7 of the 2007 Act. The First-Tier Tribunal and Upper Tribunal (Chambers) Order 2008 provides for the first-tier tribunal to be organised into chambers, including a separate war pensions and armed forces compensation chamber. The order assigns all of the functions of the current PAT (England and Wales) to that chamber. The order has the concurrence of the Lord Chancellor and the Senior President and has been laid before Parliament.
Procedural rules specific to the war pensions and armed forces compensation chamber have been drafted and signed by the Tribunal Procedure Committee, following consultation with ex-service organisations, their advisers and the President of PAT (England and Wales) The rules have been submitted to the Lord Chancellor and have been laid before Parliament. In establishing rules that are specific to this chamber those who currently use PAT (England and Wales) will have the same level of procedural protection as users of the PATs in Scotland and Northern Ireland, as rules will be made with the specific needs of this jurisdiction only in mind. Members of the armed forces community were concerned that this protection would not be provided if the chamber shared rules with other chambers in the first-tier tribunal.
In further recognition of the special relationship, other measures have been taken to ensure that appeal panels must include those who understand the particular nature of service in the armed forces, and for the jurisprudence in Scotland, Northern Ireland and England and Wales to remain consistent.
The Senior President of Tribunals has produced a draft practice statement on composition of tribunals. The President and Deputy President of the PAT have been consulted on the draft and are in agreement with it. The draft practice statement requires the continued use of service members on hearing panels within the war pensions and armed forces compensation chamber and maintains their present role without diminution or alteration. The Qualifications for Appointment of Members to the First-Tier Tribunal and Upper Tribunal Order, as laid before Parliament, requires that service members have considerable experience of service in Her Majesty’s naval, military or air forces.
A decision made at a hearing of an appeal in this chamber will normally be dealt with by a three member panel of one judge, one service member and one medical member. Alternatively, but only where the chamber President considers it appropriate, a decision at a hearing may be dealt with by a four member panel of one judge, one service member and two medical members. Panels are expected to strive to reach a unanimous decision.
Appeals from the war pensions and armed forces compensation chamber and from the PATs in Scotland will lie to the upper tribunal created by the 2007 Act, which will take over the jurisdiction of the Pension Appeal Commissioners. Assessment appeals from the PATs in Northern Ireland will also lie to the upper tribunal and entitlement appeals will continue to go to the Pension Appeal Commissioners in Northern Ireland who are themselves judges of the upper tribunal. We therefore expect that the jurisprudence will develop in a common and coherent way across the United Kingdom.
The Lord Chancellor will in addition establish within three months an advisory steering group for armed services work with an independent chair. Representatives of charities who represent appellants at appeal hearings and proposed by COBSEO will be invited to join this group, as will representatives of the judiciary and administration for the PATs in Scotland and Northern Ireland. The remit of the group will include consideration of the implementation of existing procedures, changes the Government or tribunal proposes to make to the procedures, and the applicability of any such changes across the jurisdictions.
The Lord Chancellor will ensure that staff deployed on armed services’ work will be staff who understand armed services’ requirements and who will work in effective liaison with the organisations who represent users.
Branding will continue to be distinct so that users understand they are dealing with a specialist armed forces jurisdiction.
The aim of making this statement is to set out how the valued features of the PAT are preserved and protected in the new system in recognition of the unique role of the armed forces community, and in acknowledgement of the concerns that were raised in response to the consultation on implementation of Part 1 of the Tribunals, Courts and Enforcement Act.