PM v Secretary of State for Defence (AFCS) (Tribunal procedure and practice (including UT) : tribunal practice)

Factual and Procedural Background

This opinion concerns an appeal against a decision of the First-tier Tribunal dated 20 November 2014, which struck out the Appellant's appeal against a decision of the Secretary of State dated 25 August 2009. The Secretary of State had reviewed and revised an earlier decision from 5 February 2008, awarding the Appellant compensation under Tariff 11 of the Armed Forces and Reserve Forces (Compensation Scheme) Order 2005 for an injury sustained on 4 October 2006. The appeal was struck out on the basis that it was lodged on 12 April 2014, which was more than 12 months after the normal deadline for appealing had expired, thus the First-tier Tribunal held it had no jurisdiction to hear the appeal.

Legal Issues Presented

1. Whether the First-tier Tribunal had jurisdiction to hear an appeal lodged outside the statutory 12-month time limit.
2. Whether the absolute time limit for lodging an appeal could be extended to avoid a breach of Article 6 of the European Convention on Human Rights (ECHR) in circumstances involving the Appellant’s mental illness or non-receipt of the decision letter.
3. The proper interpretation and application of the discretion to extend time in light of the Human Rights Act 1998 and relevant case law, including the threshold for "exceptional circumstances."
4. The procedural approach for remitting the case for reconsideration by the First-tier Tribunal in light of further submissions addressing the Article 6 compliance issue.

Arguments of the Parties

Appellant's Arguments

• The Appellant’s mental illness and/or non-receipt of the decision letter might justify extending the time limit for appeal to comply with Article 6 ECHR rights.
• The Appellant contended that the absolute time limit should be read down to avoid unfairness and breach of ECHR rights.

Secretary of State's Arguments

• Under domestic law and rule 21 of the Tribunal Procedure Rules, the time limit for appeals is absolute and cannot be extended.
• Case law (notably Pomiechowski v Poland and Adesina v Nursing and Midwifery Council) establishes that any discretion to extend time must be limited to exceptional circumstances where the appellant has done all they can to bring the appeal timeously.
• The Secretary of State accepted that the First-tier Tribunal erred by not considering the Article 6 issue raised by the Appellant’s mental illness.
• The Secretary of State proposed remitting the case to the First-tier Tribunal for reconsideration and for the parties to make submissions addressing the test for extension of time.
• Regarding review rights under the Compensation Scheme, the Secretary of State maintains that the Appellant must wait until 26 August 2019 to apply for a further review under article 57, based on his interpretation of the relevant statutory provisions.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
LS v London Borough of Lambeth (HB) [2010] UKUT 461 (AAC)	No power to extend absolute time limit under Tribunal Procedure Rules prior to rule 21(7).	Confirmed that the First-tier Tribunal’s striking out for late appeal was correct under domestic law.
Adesina v Nursing and Midwifery Council [2013] EWCA Civ 818; [2013] 1 WLR 3156	Where absolute time limits cause unfairness breaching Article 6 ECHR, courts may extend time in exceptional circumstances.	Supported the argument that Article 6 may justify extending time limits, but only in very limited cases.
Pomiechowski v Poland [2012] UKSC 20; [2012] 1 WLR 1604	Discretion to extend time should only arise in exceptional circumstances where the appellant has done all they can to bring the appeal timeously.	Guided the strict approach to discretion on time extensions, emphasizing minimal interference with statutory limits.
United Arab Emirates v Abdelghafar [1995] ICR 65	Strict approach to discretion in extending time limits in employment appeals.	Illustrated the court’s experience and strictness in exercising discretion on time extensions.
Jurkowska v HLMAD Ltd [2008] EWCA Civ 231	Strict approach to discretion in extending time limits in employment appeals.	Reinforced the strict threshold for discretionary extensions.
Heron Brothers Ltd v Central Bedfordshire Council [2015] UKHC 604 (TCC)	Applied Pomiechowski and Adesina approach emphasizing strictness in time extension discretion.	Confirmed the narrow scope for extending time limits consistent with ECHR compliance.

Court's Reasoning and Analysis

The court acknowledged that under domestic law, the First-tier Tribunal was correct to strike out the appeal as it was lodged beyond the 12-month time limit. However, the court identified a potential conflict with Article 6 of the European Convention on Human Rights, which guarantees a fair hearing. The court reasoned that where the absolute time limit results in unfairness amounting to a breach of Article 6, a discretion to extend time could arise, but only in exceptional circumstances where the appellant has done all they could to bring the appeal promptly.

The court considered the Appellant’s mental illness and possible non-receipt of the decision letter as potential grounds for such an extension but noted significant difficulties, including the Appellant’s apparent partial capacity and awareness of the award increase. The court accepted the Secretary of State’s concession that the First-tier Tribunal erred by not considering the Article 6 issue.

Given this, the court decided to allow the appeal, set aside the First-tier Tribunal’s decision, and remit the case for reconsideration with directions for the parties to make submissions addressing the exceptional circumstances test established in Pomiechowski and Adesina.

The court also discussed, but did not decide, the issue of the timing for applying for further reviews under the Compensation Scheme, noting that the Secretary of State’s interpretation was arguable and that legislative clarification might be desirable.

Holding and Implications

The court’s final decision was to ALLOW the Appellant’s appeal, set aside the First-tier Tribunal’s decision dated 13 January 2015, and remit the case to the First-tier Tribunal for reconsideration in light of further submissions from the parties.

The direct effect is that the Appellant’s appeal will be reconsidered with proper regard to the potential breach of Article 6 ECHR and the applicable test for extending time limits. No new precedent was established beyond reaffirming the strict application of the exceptional circumstances test for time extensions under the Human Rights Act and relevant case law. The court also highlighted the need for legislative clarity regarding review rights under the Compensation Scheme but did not make any ruling on that issue.