Serviceman killed in accident off duty - Department of Social Security decision that widow entitled to war widow's pension - binding on Defence Council panel considering application for family pension entitlement

Secretary of State for Defence v Pensions Ombudsman: CA (Lords Justice Mummery and Sedley and Mr Justice Munby): 19 November 2003

H, a serving RAF sergeant, was killed in a mountaineering accident.

His widow, the second defendant, was granted a war widow's pension by the Department of Social Security (DSS) under the war pension scheme, but her application for a family pension was refused on the basis that H's death was not attributable to his service for the purposes of regulation 3090(1) of the Queen's Regulations for the Royal Air Force because he was not on duty at the time of the accident.

Mr Justice Neuberger, upholding the Pensions Ombudsman's determination, held that a decision by the DSS that the death of a serviceman was attributable to service for the purposes of a claim by his widow under the war pension scheme was binding on the Defence Council when considering whether the widow was entitled to an attributable family pension.

The secretary of state appealed.

Jonathan Crow (instructed by the Treasury Solicitor) for the secretary of state; Michael Fordham and Ben Jaffey (instructed by Leigh Day & Co) for the widow; the Pensions Ombudsman did not appear and was not represented.

Held, dismissing the appeal, that the acceptance by the DSS that H's death was attributable to service was a precondition to the exercise of the panel's discretion to award an attributable pension, but the natural and ordinary meaning of regulation 3090(1) was that the DSS would determine the issue whether the death was attributable to service; and that it would be neither necessary nor permissible for the panel to repeat the exercise; and that the panel should exercise its discretion on that footing.