LA and Others v Secretary of State for Defence (WP) (War Pensions and Armed Forces Compensation : War Pensions – Entitlement): UTAA 22 Oct 2014

UTAA War Pensions and Armed Forces Compensation : War Pensions – Entitlement
(1) These appeals were heard over 10 days and involved the consideration of a large amount of documents, authorities and arguments. They relate to claims made under Article 41 of the Naval Military and Air Forces etc (Disablement and Death) Service Pensions Order 2006 (the SPO) based on the impact on the claimants of the British atomic tests carried out in the 1950s and early 1960s
(2) Although the reasons for my decision that follow are lengthy their kernel can be stated shortly and I hope that such a statement will assist the reader to follow them.
(3) At the heart of the appeals are the issues whether the FTT applied the test set by Article 41(5) of the SPO correctly and further or alternatively adequately explained how they had done so.
(4) That test (the Article 41(5) test) is:
Where, upon reliable evidence, a reasonable doubt exists whether the conditions set out in paragraph (1) are fulfilled, the benefit of that reasonable doubt shall be given to the claimant.
(5) In short I conclude that:
i. this test places an onus on the claimant to establish by evidence that is not fanciful or worthless (and so reliable) possibilities that he asserts found the existence of that doubt,
ii. the decision maker must carry forward:
(a) such possibilities, and
(b) matters about which he has no reasonable doubt,
and so the ingredients of the claimant’s case into the judgmental or weighing exercise of deciding whether the Article 41(5) test is satisfied,
iii. that judgmental exercise involves an evaluation of the respective cases of the parties by reference to all of the competing evidence and argument and thus on that basis:
(a) the relative strengths and weakness of those cases,
(b) their ingredients and so the possibilities they advance, and the matters they rely on (including those about which they assert the decision maker can have no reasonable doubt),
iv. that judgmental exercise may come into play at the first stage of the process as an evaluation of the evidence and arguments advanced by the Respondent may at that stage be taken into account in determining what is or is not a possibility to be carried forward or what matters the decision maker has no reasonable doubt about, and
v. this is not a rigid approach but importantly it is based on the identification and evaluation of possibilities and effective certainties and it is not based on findings of fact made on the balance of probabilities that are thereafter treated as established facts (or effective certainties) or an approach based on which expert evidence is preferred.
(6) I conclude that the FTT erred in law by not applying that approach because they did not so identify possibilities but applied an approach to the ingredients of the claimants’ cases that was based on findings made applying the normal civil standard of proof (balance of probabilities) or a similar standard for example by preferring the evidence of one expert to another as opposed to determining whether the evidence they so rejected raised a possibility that needed to be carried forward in the decision making process.
(7) If contrary to my view the FTT did not so err in law I conclude that on a generous reading of their decision they have erred in law by failing to adequately explain how they reached their decisions on a proper application of the Article 41(5) test.

Charles J CP
[2014] UKUT 477 (AAC)
England and Wales


Updated: 23 December 2021; Ref: scu.539090