Mr Justice NEWMAN :
- This war pensions appeal raises an important issue of interpretation in connection with paragraph 10 of Schedule 3 to the Naval, Military and Air Forces Etc. (Disablement and Death) Services Pensions Order 1983 (SI 1983/883) (the SPO).
- Paragraph 10 provides:
"Except in a case to which paragraph 6, 7 or 9 applies, where a claimant satisfies the Secretary of State that-
(a) he would have made a claim or an application for a review on an earlier date than he actually did but for an act or omission of the Secretary of State or any officer of his carrying out functions in connection with war pensions, defence, or foreign and commonwealth affairs, which wrongly caused him to delay the claim or application and that act or omission was the dominant cause of the delay; and
(b) that act or omission continued to be the dominant cause of the delay up to the moment the claim or application was made,
any reference in this Schedule to the date of a claim or date of application for review or application for an appeal shall be treated as a reference to the earlier date referred to in this paragraph".
- Paragraph 10 in its current form, which I have set out above, came into effect from 9th April 2001, for the purpose of decisions made on or after 9th April 2001. Previous versions of Schedule 3, to which it will be relevant to refer, include those of 1983 and 1997. At this stage it is material to note that prior to 7th April 1997 the legislation in connection with the backdating of awards provided that the Secretary of State had an overriding discretionary power to depart from the normal rule, the discretion being stated in these terms:-
"Except in so far as the Secretary of State may otherwise direct with respect to any particular case or class of case, payment of a pension … shall not be made in respect of any period preceding …".
- The Secretary of State appeals against a decision of the Pensions Appeal Tribunal for England and Wales (the PAT) which by its decision dated 5th June 2003 applied paragraph 10 of Schedule 3 and concluded that the respondent, Mr Reid, would have made a claim on an earlier date than he actually did but for an omission of the Secretary of State, which wrongly caused him to delay the claim, and that the omission was the dominant and continuing cause of the delay up to the moment the claim was made. The relevant omission found by the PAT was that the Secretary of State had failed to take reasonable steps to make available war pensions information to ex-service personnel abroad. The PAT considered the evidence which was before it and concluded that there had been a breach of that duty and that, therefore, a relevant omission had occurred. Mr Kovats, counsel for the Secretary of State, submits that the decision is wrong in law in so far as it concludes that the Secretary of State was under a duty to take reasonable steps to make available war pensions information to ex-service personnel abroad. Mr Kovats alternatively submits that, if there were such a duty, the conclusion that the Secretary of State breached the duty was wrong in law.
The Facts
- William Reid was born on 14th November 1924 in Belfast, Northern Ireland. Shortly after his 18th birthday, on 15th December 1942 he enlisted into the Royal Armoured Corp and thus commenced his service in the armed forces. He remained enlisted until 18th February 1955, when he resigned his regular army commission. His rank at that time was captain (acting major) in the 14th/20th King's Hussars.
- In the course of the second world war he served in North Africa, Italy and South East Asia. After the war he served in Malaya, Norway and Canada. He was awarded the Military Cross for his services in the second world war.
- On 17th January 1945, when he was acting as tank troop leader leading a counter-attack on German troops, he was wounded from the blast and the fragments of an enemy shell which hit the tank. He was taken to the Forward Field Hospital, which served the troops taking part in the winter line of attack on the Adriatic Coast of Italy, south of Lake Commachio. He had some 30 shell fragments removed from his head. Others have worked their way out over the years. He was concussed, temporarily blinded and deafened and was suffering from lower back pain, having been thrown against the back of the tank turret by the blast. After removal of shell fragments from his head, face, mouth, ears and neck and several operations, he returned to his regiment within weeks, in February 1945, only to be shelled again whilst on reconnaissance, on this occasion losing a small piece of his left ear and again being blinded, deafened and concussed. He was able to persuade the regimental medical officer not to evacuate him and thus to avoid further worry for his parents, who would have just received the first "next of kin" notice in respect of his earlier injury, and who would, had he been evacuated, have then received a second such notice.
- After the war he continued in the armed services despite continuing difficulties with his left eye, his back and, from time to time, temporary deafness. In 1947, whilst still a serving officer, backache was diagnosed as due to a fracture in the lower vertebrae. He was not medically discharged. Had he been so, the question which now has to be decided would never have arisen for he would have been under no obligation to make a claim (Article 3B, SPO).
- Upon discharge from the army he immediately emigrated to Canada where he has remained to this date, now aged 80, and in retirement, having completed his service as a public servant in Canada. He married in December 1959.
- By a letter dated 8th November 1997, addressed to the War Pensions Agency, Mr Reid wrote stating:
"It has been brought to my attention that I may be entitled to a disability pension as a result of service in the British army".
- He then briefly set out an account of how he was injured in service. He then went on to point out:-
"Whether it was the first injury (which involved multiple shell fragments embedded in my neck, face and head) or the second, or a combination of both, I have – in the years since – had difficulty with my left eye, including one period of almost total blindness about twenty years ago. I have had a loss of hearing in my right ear since the war, for which I was forced to buy a hearing aid several years ago, and now I have been told that my left ear requires attention".
He also pointed out that in recent years the back pain had increased. He closed by stating:
"I would appreciate knowing what procedure I should follow in applying for whatever pension rights I may have".
- That letter led to him being in possession of a war disablement pension claim form, which he filled out and which was received by the War Pensions Agency on 16th January 1998.
- Unremarkably, having regard to the facts, his claim to entitlement was accepted and an award was made on 17th August 1999 which was backdated to 18th December 1997, namely the date of the claim. In November 1999 Mr Reid took up the question of backdating and stated he wished to appeal the assessment. In his letter dated 23rd November 1999 he stated:
"I have lived in Canada for over forty years, and did not realize until 1997, when a comrade who was wounded within days of myself in 1945, made contact with me and, inter alia, mentioned that he had been in receipt of a war pension as long as he could remember. This was the first inkling I had that such a pension was possible. While I have had twinges of envy about the generous treatment of Canadian veterans (whether or not they were wounded) I had accepted that wartime service in the much larger British army (even if wounded) was something one volunteered for, and afterwards got on with one's life. I have obviously paid a price for emigrating, and being out of touch. Somehow I do not think that is fair, since the injuries I sustained have been with me right through the years and if I had continued to live in Britain I would have become aware of my eligibility decades ago. My appeal, therefore, is that on grounds of fairness there should be a retroactive acknowledgement of that eligibility. I would suggest that a reasonable compromise might be to start the pension on the date I turned sixty-five, that is on 14th November 1989."
- By a letter dated 13th January 2000, the Secretary of State purported to exercise a discretion to refuse the request for backdating, which Mr Reid had sought by his letter dated 23rd November 1999. At that date, by reason of the change in the law to which I have already referred, namely the removal in 1997 of a general discretion on the part of the Secretary of State, Mr Reid's application for backdating should have been considered in the light of paragraph 10 to Schedule 3 as it then was. It can be observed that in the light of the facts which had been presented to the Secretary of State in Mr Reid's letter, had the exercise of discretion been intra vires and susceptible to challenge in this court, Mr Kovats might have been in some difficulty justifying it as a lawful exercise of discretion. That said, it only remains to refer to one paragraph in the letter which is relevant to the issues on this appeal. As part of the reasoning, the following was stated:-
"Information about War Pensions and how to claim is contained in documents which are issued under standard procedures to all servicemen on discharge from forces. This emphasises the fact that pension is normally payable from the date of claim. I am afraid that ignorance of possible entitlement or failure to associate disablement with service is therefore not accepted as constituting good reason for not claiming earlier".
- There was no question that Mr Reid had failed to associate his disablement with service. On the contrary, everything he had said made it plain that, from the outset, he was aware that he had suffered disablement due to service, but he had no knowledge that he was entitled to claim in respect of it. Whether ignorance of possible entitlement in the circumstances put forward was capable of constituting a good reason for a favourable exercise of discretion is not now relevant, but his ignorance of his entitlement for the reasons put forward by Mr Reid is at the heart of the issue arising for interpretation under paragraph 10 of Schedule 3.
- As a result of the error contained in the letter dated 13th January 2000, Mr Reid's request for backdating had at that date not been considered in accordance with law. Fortunately, by May 2001 Mr Reid had received the War Pensions Agency pamphlet, "Focus on War Pensioners" and from that was able to discern that he had a right of appeal in respect of backdating which could be exercised until 2nd April 2002. The right of appeal to which Mr Reid's attention had been drawn was introduced by amendment to the Pension Appeal Tribunals Act 1943 by section 5A which provides for a right of appeal against a specified decision. By Regulation 3(1)(a) of and Schedule 1 to the Pension Appeal Tribunals (Additional Rights of Appeal) Regulations 2001, a decision on a commencement date made on or after 9th April 2001 is a specified decision. The crux of the appeal advanced by Mr Reid in his letter dated 14th May 2001 was as follows:-
"….my left eye is giving me increasing trouble. Because of this, and because I have recently been diagnosed as having diabetes (as well as angina) I was examined by a prominent eye specialist to see if the diabetes had anything to do with the (eye) condition. The specialist indicated that this was not so. The singular problem is that I have an old scar in my eye which, in his words, is within a fraction of a millimetre of creating total blindness. I would point out that my left eye problem became acute in late 1961 and early 1962 when I underwent prolonged cortisone injections to treat a blurring in that eye similar to the condition that occurred when I was first wounded on 17th January 1945 in Italy. While this was reported in my application for a pension in 1997 I make the point again now to indicate that, if I had been living in the United Kingdom in 1962 and been aware of whatever legislation was in place, I would certainly have applied for help at that time. But since I was unaware of any such legislation either before or after 1962 - until 1997 - I obviously made no claim".
- So far as the suggestion in the letter of 13th January 2000 was concerned that information was provided to all servicemen, Mr Reid had this to say:-
"I have to tell you, honestly and categorically, that no such information was provided me when I resigned my Regular Army commission on 18th February 1955. In fact, other than a duplicate of Army Form B199A (Record of Service) and a London Gazette Second Supplement, there was absolutely no other instruction or information".
So far as his ignorance was concerned, he went on to state:-
"I was not in a position to be aware of possible entitlement until 1997, when a chance encounter with a wartime friend, alerted me. Coincidentally a brief article in the 1997 journal of the King's Royal Hussar's Association (which I had received occasionally over the years) made mention of pensions for war veterans who had suffered various degrees of hearing loss and gave your address. That was the first, and only, intimation I had ever had of the legislation, and I acted on it immediately. It would be of interest to me to know what regulations, or changes in regulations, in 1996/1997 prompted the article I have just mentioned. It would also be of interest, and critical, to know what information was supposed to have been provided me in 1955 when I left the Army voluntarily. I would also like to know how, except for the circumstances in 1997 I have described, I was supposed to go about erasing my ignorance over the years".
- Mr Reid further pointed out that in his view 'ignorance of the law' had little to do with the claim by a disabled veteran as opposed to its accepted relevance to a defendant charged with a criminal offence. He concluded by pointing out:-
"It seems obvious that if I had been aware of the possibilities in the sixties when my hearing started to fail, I would have applied for a war pension then. I would certainly have done so in 1962 when I went temporarily blind in my left eye. Through no fault of my own I was thus deprived of some level of compensation for war injuries for forty years or more".
- The Secretary of State in response to this letter maintained his decision. Prior to the issue of a formal Notice of Appeal, which is dated 26th October 2001, there was communication between the Parliamentary Under-Secretary of State for Defence and the Minister for Veterans' Affairs and the Reverend Martin Smyth MP who had written on behalf of Mr Reid.
- The response signed by Dr Lewis Moonie MP, on behalf of the Secretary of State, is noteworthy for two reasons. First, the response asserts:-
"The legislation under which Mr Reid's WDP has been awarded provides that where the claim was not made within three months of termination of service, payment of pension shall not be made for any period before the date of the claim, unless the Secretary of State otherwise directs".
Despite the fact that the letter was written on 19th July 2001, this had not been the position since 1997. In response to the contention that Mr Reid was unaware of his eligibility, Dr Moonie went on to state:-
"However, information about War Pensions and how to claim is contained in documents which are issued under standard procedures to all servicemen on discharge from the forces. The WPA and its predecessors have, over the years, taken reasonable measures to make information about war pensions available to members of the public including those living overseas.
Obviously there is no guarantee that the correct procedure was followed vigorously in all cases, but even if it was not, in any particular case the WPA would not regard such an omission as sufficient grounds to backdate an award. The responsibility for making a claim to a WDP rests with the individual and the Secretary of State cannot accept that lack of knowledge about the war pensions scheme constitutes good cause for not claiming a pension".
- The letter is significant in so far as it repeats that the standard procedure on discharge was for notice to be given of the right to claim but additionally asserts that over the years reasonable measures have been taken to make information about war pensions available to "members of the public" and, particularly relevantly, that reasonable measures have been taken to inform people living overseas.
- In a letter dated 8th September 2001 Mr Reid responded to the suggestion that measures had been taken to provide information to those overseas, as follows:-
"I would be obliged if I could be advised as to what those measures might have been. I think I should point out that, although I have been in Canada for over forty years, I remained throughout a member of the 14th/20th King's Hussars Regimental Association (now the Regimental Association of the King's Royal Hussars). My membership number is 0306. The Association publishes an annual journal of regimental and Old Comrades news. In the thirty odd copies I have checked over the last few days there is only one reference to war disablement pensions, and that had to do with eligibility related to percentages of loss of hearing. The note was published in 1997, the year I applied for a pension. I do not know how long the WPA has been in existence, and perhaps it was a predecessor organisation that somehow missed a ready means of contacting the line veterans who were most likely to have been wounded. With respect, therefore, I have to conclude that 'reasonable' measures were not taken, and I sincerely hope that the response is not going to be along the lines that even if reasonable measures were not taken to make information available 'in all cases', the onus is still on the uninformed".
- In his Notice of Appeal Mr Reid elaborated, stating, among other things:-
"I appeal under the provision related to unlimited backdating, because of administrative error by the staff of the Ministry of Defence in 1955 and subsequent omission by the staff".
In referring to 'administrative error' Mr Reid plainly had in mind that the governing provision was that which preceded the present terms of paragraph 10, which in its material part provided:-
"(a) he would have made a claim, an application for review or, as the case may be, an application for an appeal on an earlier date than he actually did but for an administrative error on the part of the Secretary of State, the Secretary of State for Defence or the Secretary of State for the Foreign and Commonwealth Office; …"
- He amplified his reasons for the appeal, which reasons closely reflect the matters I have already recited but, in addition, he recited the fact that he had double-checked the Association's journals which had been in his possession for the period up to 1997. He went on to add:-
"As another example, it would seem reasonable to provide such information to commonwealth ex-service organisations, such as the Royal Canadian Legion, which is allied to the Royal British Legion and welcomes local British veterans. I am informed by Pacific Command of the Royal Canadian Legion that, regrettably, they have no record of ever receiving official information about British war pensions".
- He summed up the matter as follows:-
"Surely officials cannot have it both ways; in fact four ways. First there is the statement that information was provided to me which should have prompted me to apply for a pension within three months of my leaving the Army. This information was not, in fact, provided. Then there is the admission that the delivery of such information might not, indeed, have happened – but the omission is of no real consequence. Then there is the assurance that efforts are being made to get pension information to veterans abroad, but without saying how. This is followed by the final rejoinder which infers that it does not matter anyway, because lack of this knowledge is irrelevant".
The Grounds of Appeal
- Mr Kovats submits that the PAT fell into error in concluding that the legislation imposed a duty upon the Secretary of State to take reasonable steps to make available war pensions information to ex-service personnel abroad. Their reasoning had involved taking account of two factors, namely the fact that information was provided to all servicemen on discharge and secondly by taking, as a parallel, the Secretary of State's provision of information in the field of social security benefits. He submitted that each of those steps was flawed. As to the first, it proceeded upon the basis that because information was provided it could be inferred, as a matter of law, that an obligation to do so existed. As to the second, it was similarly flawed. Further, backdating of the payment of social security benefits was specifically provided for by Regulations (SI 1987/1968 reg 19) and ignorance of the right to claim in the absence of the provision of information by the Secretary of State was not included. I have no difficulty in accepting that the mere fact that the Secretary of State provides information in relation to benefits, in whatever sphere of entitlement, cannot of itself give rise to any obligation upon him to do so, let alone a legal duty to do so. As Mr Kovats pointed out, were that to be so, it would inhibit the volume of information which in the public interest the Secretary of State should distribute. For reasons which will appear, I do not regard legislation covering the provision and payment of social security benefits to be an appropriate parallel.
- In my judgment the appeal falls to be determined according to the true meaning of the words in paragraph 10 Schedule 3, in particular, what is meant by:-
"… an act or omission of the Secretary of State or any officer of his carrying out functions in connection with war pensions, defence or foreign and commonwealth affairs, which wrongly" … [causes a serviceman or woman] … "to delay the claim or application……..".
- I propose to take as my starting point the statutory context and purpose of the legislation and then to examine the precise words falling for interpretation.
- The SPO is made under authority, contained in section 12(1) of the Social Security (Miscellaneous Provisions) Act 1977, which provides:
"Any power of Her Majesty, whether under an enactment or otherwise, to make provision about pensions or other benefits for or in respect of persons who have been disabled or have died in consequence of service as members of the armed forces of the Crown shall continue to be exercisable in any manner in which it may be exercised apart from this subsection and shall also be exercisable by Order in council in pursuance of this subsection; and such Order shall be made by statutory instrument and laid before Parliament after being made".
- In pursuance of this subsection, provision was made to revoke the Prerogative Instruments but their terms appear (unamended) in S1 1978/1525 – the first SPO. Prior to the introduction of article 3A and 3B, article 3 provided: "Under this Order awards may be made where the disablement or death of a member of the armed forces is due to service". After amendment in 1996 the basic condition was made "subject to article 3A and 3B …".
- Article 3A was introduced to take effect from 20th December 1996 and introduced a 'claim' as a condition precedent to the making of any award:
"(1) Subject to article 3B (cases where claims are not required), it shall be a condition precedent to the making of any award of any pension …. that the person making the claim shall have-
(a) completed and signed a form approved by the Secretary of State for the purpose of claiming that pension …;
and
(b) delivered that form either to an appropriate office of the Secretary of State or to an office of an authorised agent".
- Prior to this amendment the basic conditions for an award had remained unchanged from the terms of the Prerogative Instruments through the transfers of the power to various Ministries, as successors from time to time.
- Article 3B contains a list of cases where claims are not required. In summary only these are:-
(1) discharge on medical grounds;
(2) death whilst serving in the armed forces;
(3) certain allowances where pay or disablement is already being received.
Further, it is stipulated that separate claims are not required in various circumstances, the detail of which it is not necessary to recite.
- It seems plain, from the first SPO through to 1996 when the condition precedent was introduced, that, although there was no requirement for a claim in any particular form, the legislation proceeded upon the basis that there would be an identifiable claim. For example, the variation in the appropriate standard of proof applied according to whether "… a claim is made… not later than 7 years after the expiration of 7 years". Again the predecessors to Schedule 3, in various forms since the first SPO, and in the first SPO, provided, in terms, that the period in respect of which payment would be made would not precede "… the date of the claim , save where the Secretary of State otherwise directed" (Article 65 in the first SPO).
- In my judgment, the introduction of the claim as a condition precedent read with article 3B and the amendment to Schedule 10 should be seen as interrelated. Having regard to the multiple grounds upon which a claim can be based, the absence of a requirement in the legislation for a claim to be made and in due form, could (and no doubt did) give rise to procedural uncertainty in connection with the grounds upon which any claim might be progressing at any one time. Thus, I regard the introduction of the condition precedent to be driven, in part, by a need to achieve clarity in a case where a claim has already been made but a separate claim is, for clarity, required. Viewed against this purpose, the provision does not shed much light on the question in this appeal, which relates to the initiating of a claim where no claim at all has previously been made, but it sheds light on the circumstances in which "an act or omission" could occur so as wrongly to cause delay to the making of a claim, namely in the course of consideration of the claim that had already been made. That said, the real question remains to be answered, namely whether there can be an "omission" to act, within the meaning of paragraph 10 where no communication or inquiry has occurred in connection with a claim and the proximate factual circumstance is the period of service in the armed forces to which the claim relates.
- In the Secretary of State for Defence v Hopkins [2004] EWHC 299 (Admin) (transcript 20th February 2004), I concluded that the character of the benefit awarded under the SPO was not "contributory" but was a "form of welfare provision for injury or disablement". Further, I concluded that the Secretary of State did not act arbitrarily in requiring that, in order to qualify as a dependency within the scheme, the cohabitation of a dependant had to commence six months before service commenced. I observed:
"It can be seen as delineating the appellant's responsibility, which is to support a relationship which existed shortly before military service commenced, has continued through service, through disability attributable to service, to the time of the application. "
My conclusion resulted from my acceptance of the submission, advanced on behalf of the Secretary of State, that in considering the provisions for disablement it was relevant to pay regard to a factor in the originating context for the claim, namely that there was an acceptance by the Secretary of State of a measure of responsibility for service personnel from the commencement of service. In my judgment, it is an important facet of this legislation that its operating framework exists in a continuum commencing with service and continuing until death.
- Contrary to the PAT, I do not see this legislation as being within a category comparable to public general Acts of Parliament or subsidiary legislation made thereunder. The legislation is of limited application, being limited to a defined class of persons but significantly, unlike any section of or member of the public who might benefit under general legislation, only those (and any person who can claim under them) who have acted so as to acquire a basis for entitlement through service are affected by it. As a result, they have an established and direct relationship with the Crown. The terms of engagement of members of the armed forces do not constitute a contract of service in the strict sense (see Mitchell v R [1896] 1 QB 121n), but they establish a relationship, in many respects indistinguishable in its content from an employer/employee relationship, the existence of which is critical to the issue in this case.
- Mr Kovats drew my attention to the judgment of Carnwath J. in Coull v Secretary of State for Social Security (transcript 7th November 2000). In that case, which concerned Schedule 3 prior to the amendment removing the Secretary of State's discretion, it was suggested that the Secretary of State's policy in connection with backdating should be exercised so as to take into account the purpose of the scheme, "… namely the wish by the Crown to provide adequately for those injured in the service of the Crown in the armed services". I agree with this expression of the purpose of the scheme which, unlike the submission, I do not read as having been in issue before Carnwath J.
- Carnwath J. could find no error of law in the decision which had been taken not to backdate Mr Coull's pension to the date of the termination of his service. Mr Coull's evidence was that, contrary to what had been said to be standard practice, he had not been issued with any documents on his discharge informing him of his ability to claim a war pension. The Secretary of State, in his decision, referred to particular facts touching the claim by Mr Coull:-
"In view of Mr Coull's attendance at Pirbright, and the experience of the staff at that Depot, the Secretary of State is of the view on balance that documents relating to war pensions would have been handed to Mr Coull at Pirbright."
Further, the Secretary of State observed in connection with the provision of information on discharge:-
"... that information handed out at discharge is often not recognised by soldiers to be of significance at that time and... some soldiers may not in fact elect to read all the information."
- Mr Coull's challenge failed on the facts of his case and upon the conclusion of Carnwath J. that the reasoning was rational and clear by reference to the policy and facts of the case.
- Mr Kovats helpfully provided me with a copy of the "Policy Statement: Backdating" which governed pre 1997 cases. Many of the instances are not in point for they are specifically provided for under Schedule 3 (see, for example, 6A (official error on claim already made), 5 (mental or physical illness)). So far as it may be relevant, the general policy appears from Coull to have been that:-
(1) each case was viewed on its own facts; and
(2) the discretion to backdate was generally exercised where it was "reasonable to do so, for example where there has been departmental error or misdirection or where the claimant was prevented by illness from, or had other good reason for, not making a claim earlier".
It is plain that the amendment to withdraw the discretion and provide for particular circumstances excludes such a broad reach as would fall within any "good reason" and, so far as it was intended, that policy should be reflected, specific instances were included.
- The following points emerge from the above:-
(1) the purpose of the legislation is to secure, in accordance with law, provision for those injured in the service of the Crown in the armed forces;
(2) it is inherent in the nature of the provision for those injured that, if not medically discharged, the full circumstances capable of giving rise to an entitlement to claim may not arise for some time, perhaps years, after termination of service;
(3) the basis of a claim must be attributable to service;
(4) the risk of being injured in the service of the Crown is a function of service; personnel are placed in danger and are at risk of injury and death;
(5) the purpose of the legislation will be facilitated if those entitled to claim know of their right to make a claim.
- The legislation, interpreted in the context of the relationship between members of the armed services and the Crown, cannot have been passed with the intention that the fulfilment of its purpose would depend upon the chance (however strong) that injured ex-service personnel would, by a process of osmosis, come to learn of their entitlement to claim. The orderly and efficient administration of the scheme depends upon a balanced reciprocity between the Crown providing information and a claimant acting promptly in response. The balance is reflected in the legislation.
- The words in paragraph 10 contemplate "an act or omission" occurring to delay a claim, without any limit being expressed on the circumstances thereby contemplated. I see no reason to limit it to claims separate to one which has already been advanced. The words are wide enough to extend to a circumstance where no claim at all has been made. Whilst it is possible that an initial communication, short of being a claim in due form, might generate conduct causing wrongful delay (for example, delay in sending a claim form) the words are apt and broad enough to extend to a failure to take reasonable steps to inform someone who has not communicated in connection with making a claim.
Conclusion on Ground 1
- Mr Kovats did not submit that it would be unjust or unreasonable to hold that the duty found by the PAT existed. Mr Singh did not assert that there was a legally enforceable duty, but that a relevant duty or obligation rested on the Secretary of State to take some action, so that a failure to act constituted an "omission" under paragraph 10.
- I am satisfied that the relationship and proximity of ex-service personnel to the Crown places them in connection with the SPO in a different situation from that which exists in connection with general social welfare legislation. By their service, armed service personnel acquire a legitimate basis for being provided for in accordance with the legislation and the Secretary of State has a duty to take reasonable steps to inform them of the existence of the scheme under the SPO. The duty is not legally enforceable. There is nothing in the SPO to contradict the existence of a duty. Indeed, article 3A, which makes a claim a condition precedent to entitlement, heightens the need for a duty to exist in order to further the purpose of the legislation and to maintain the balance of responsibility resting upon personnel and the Crown.
- I regard the duty as being reasonably incidental to the Secretary of State's overall responsibility for the due and proper administration of the scheme. In practical terms, it is unlikely that the declaration by this judgment that a duty exists will affect the actions which are already taken by the Secretary of State. For example, if reasonable steps are taken to inform ex-service personnel abroad (see Dr Moonie's letter) no more will be required. Mere ignorance on the part of a claimant will not suffice. Where reasonable steps have been taken an assertion of ignorance will be subject to scrutiny. Even if ignorance is proved that will not, in itself, demonstrate that the steps which were taken were insufficient.
Ground 2
- The PAT concluded that Mr Reid had not received any information before 1997. Further, it was "impressed with the thorough nature of" the enquiries which he had made to ascertain whether any leaflets had been issued, press releases had been circulated or broadcasts made, or correspondence entered into by the Secretary of State or those acting on his behalf to inform the Royal Canadian Legion and Regimental Association of the existence of the scheme under the SPO.
- Against this evidence, the Secretary of State was on record as having stated that:
(1) service personnel are given notice on discharge of their entitlement; and
(2) that reasonable steps had been taken to inform personnel abroad (see Dr Moonie's letter).
- Having regard to the recognition, recorded in Coull, that at the time of discharge "soldiers may elect not to read the information", there may be a need to consider whether giving information at discharge is sufficient. That said, the fact that Mr Reid did not receive any information does not of itself establish that reasonable steps to provide him with it were not taken. But Mr Reid's case demonstrates how significant the passage of time can be between discharge and disability. The role played in the United Kingdom by Regimental Associations, combined with the greater potential for claims from within the United Kingdom, the frequency of publicity and the consideration to which the claims will be subjected, creates an environment quite unlike that which prevailed for Mr Reid in Canada from 1954 onwards. These factors are highly material.
- It was open to the Secretary of State to call evidence of the reasonable steps which had been taken to inform personnel abroad. He did not do so and the evidence of Mr Reid was uncontradicted. The PAT was entitled to regard it as "impressive" and to conclude that there had been a breach for there was no evidence to support a conclusion that any steps had been taken over a passage of time when it must have been known ex-service personnel living in Canada required information. The PAT was entitled to accept and adopt Mr Reid's evidence as to when he would have claimed. I can see no error in this part of the decision.
- Finally, I should observe that I reject the suggestion that this conclusion will lead to a "flood" of claims which will be difficult, by reason of the passage of time, to investigate. It was suggested that there will be an increase in the burden on public funds. I do not regard that as relevant. Every claimant will have to establish ignorance. That will require more than a bare assertion. Further, where reasonable steps have been taken, ignorance will not avail the claimant.
- For the above reasons, this appeal is dismissed.
