FS v Secretary of State for Defence (WP) [2017] UKUT 194 (AAC) CAF/3122/2016 1 IN THE UPPER TRIBUNAL Case No. CAF/3122/2016 ADMINISTRATIVE APPEALS CHAMBER Before Upper Tribunal Judge Rowland Decision: The claimant’s appeal is allowed. The decision of the First-tier Tribunal dated 27 July 2016 is set aside and, by consent, there is substituted a decision maintaining a composite interim assessment of 70% from 20 August 2012 in respect of the following conditions – (a) prolapsed intervertebral disc (AD1); and (b) pain and numbness in left leg and pain in right hip (AD2). REASONS FOR DECISION 1. This is an appeal, brought by the claimant with permission granted by the First-tier Tribunal, against a decision of the First-tier Tribunal dated 27 July 2016, whereby, on his appeal from a decision of the Secretary of State notified on 21 July 2015 reviewing but maintaining an assessment of disablement at 70%, it reduced the assessment to 40% with effect from 20 August 2012. The Secretary of State supports the appeal and both parties are now agreed that the assessment should be restored to 70%. 2. A form of consent order in the style used in courts has been submitted Nevertheless, I will follow the Upper Tribunal’s usual practice of giving brief reasons for allowing the appeal, for the benefit of the First-tier Tribunal as much as for the benefit of the parties. 3. The claimant was born in 1930 and so is now in his mid-80s. He served in the Army from 1948 to 1950 and was then a member of the Territorial Army until 1969. The documents originally before the First-tier Tribunal did not give the full history of his claim for a war pension, but it managed to elicit further evidence sufficient for its purposes. The original award of a war disablement pension was made in 1969 in respect of a prolapsed intervertebral disc. The assessment was then 30%, increased to 40% in 1994 and to 50% by a Pensions Appeal Tribunal in 1998. In 2002, another Pensions Appeal Tribunal accepted a claim for a second condition – “pain and numbness in left leg and pain in right hip”, with effect from 2000, and a composite assessment of 60% was made. On 20 August 2010, the First-tier Tribunal (which had by then replaced the Pensions Appeal Tribunals in England and Wales) made an interim assessment of 70% in respect of the period from 19 June 2009 to 19 August 2012. As far as I can see, the fact that the assessment was for a limited period seems to have escaped the Secretary of State and he continued paying the pension after the period had ended. It was not until 28 January 2015 that another certificate, making a long-term interim assessment of 70%, was issued, together with a decision in which it was said – “The Generous assessment of 70% for AD1 and AD2 is maintained”. Nothing specific was said in the certificate or the decision as to the period for which the assessment was effective, but the First-tier Tribunal subsequently treated it as a FS v Secretary of State for Defence (WP) [2017] UKUT 194 (AAC) CAF/3122/2016 2 decision effective for an indefinite period from 20 August 2012, which seems consistent with what is usually meant by “Interim LTA” and with the duty – which has to be implied in the absence of any express provision in the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 2006 (SI 2006/606)) – to make a further assessment when a fixed-term interim assessment expires. 4. The claimant applied for a review of that assessment. That was correctly treated by the Secretary of State as an application for a review “on any ground” under article 44(1)(b) of the Order that, because it had been made within three months of the decision to be reviewed, could be effective from the date from which the decision being reviewed was effective (see paragraph 1(3) of Schedule 3 to the Order1 ). However, the previous assessment was maintained, in a decision apparently given on 17 July 2015 but notified to the claimant on 21 July 2015 and for which reasons were given only on 15 September 2015, after the claimant had appealed. 5. The claimant’s appeal came before the First-tier Tribunal on 27 July 2016. At the outset, the claimant was warned that the First-tier Tribunal could reduce the assessment of disablement but, having taken advice from his Royal British Legion representative, he indicated that he wished his appeal to proceed. The First-tier Tribunal had formed a preliminary view that the claimant had previously been over- 1 The Secretary of State actually purported (see doc 2 (reverse)) to rely on “Article 46.1(3)”, but article 46 is very short provision that merely introduces Schedule 3 and it is therefore clear that paragraph 1(3) of that Schedule is what he had in mind, presumably as read with paragraph 1(4)(b). In War Pensions and Armed Forces Compensation – Law and Practice (Wildy, Simmonds & Hill, 2016), Judge Andrew Bano says in a footnote on page 46 that the wording of paragraph 1(3), (4) and (5) of Schedule 3 “is very unclear”. That is, in my view, a gross understatement: one can interpret those subparagraphs only by imagining what the legislator might have wished to achieve, which is not an altogether satisfactory approach to statutory construction. Paragraph 1(1) to (5) provides – “1.—(1) Subject to the following provisions of this Schedule, an award or an adjustment of an award shall have effect from such date as may be specified in the award, being a date not earlier than the date specified in subparagraph (2) which is relevant in the claimant's case. (2) The date specified in this subparagraph is whichever date is the latest in time of the date— (a) following the date of termination of service or, in a case under Part III, following the date of death of the member; (b) of the claim; (c) of the last application for review; or (3) Where in a case to which subparagraph (1) applies, the claimant satisfies the requirements of subparagraph (4) the award shall have effect from the date the subparagraph is satisfied. (4) This paragraph is satisfied where the date of claim or application for review is made within 3 months of— (a) the date of termination of service, or the date of death where an award is made in respect of a member's death; or (b) except where paragraph (a) applies, the date of notification of a decision on the claim or review. (5) Where the requirements of subparagraph (4) are satisfied on more than one occasion and the occasions on which they are satisfied are consecutive, subparagraph (3) shall apply as from the first occasion on which subparagraph (4) is satisfied.” The surplus or misplaced “or” at the end of paragraph (2) is presumably the result of forgetfulness after the draftsman had decided that a draft head (d), whatever it was, was not a good idea and should be omitted, but the drafting of subparagraphs (3) and (5) is difficult to excuse. What is meant by the date on which, or the occasion from which, subparagraph (4) is satisfied? A sensible literal construction is not possible. FS v Secretary of State for Defence (WP) [2017] UKUT 194 (AAC) CAF/3122/2016 3 assessed and it did not alter that view in consequence of the hearing. In a detailed statement of reasons, it explained its thinking and also showed clearly that it had in mind the terms of article 44 of the 2006 Order, relating to reviews. 6. In relation to assessments of disablement, article 44(4) provides – “(4) Subject to the provisions of paragraph (9), following a review under paragraph (1) of … any assessment of the degree of disablement of a member of the armed forces, that … assessment may be revised by the Secretary of State to the detriment of a member of the armed forces only where the Secretary of State is satisfied that— (a) the … assessment was given or made in consequence of ignorance of, or a mistake as to, a material fact, or of a mistake as to the law; or (b) …; or (c) there has been a change in the degree of disablement due to service since the assessment was made.” As I said in JM v Secretary of State for Defence (WP) [2014] UKUT 358 (AAC) – “14. … These conditions ensure that a mere difference of opinion as to the proper level of the assessment cannot justify a reduction in the assessment or the consequent award (see Cooke v Secretary of State for Social Security [2001] EWCA Civ 734 (reported as R(DLA) 6/01)). …” 7. The First-tier Tribunal found that the claimant’s total disablement merited an assessment of 70% but that at least half of that was attributable to chronic obstructive pulmonary disease, asthma and a cardiac condition that were not due to service. Accordingly it considered that disablement due to service should be assessed at 35%, which it rounded up to 40% under article 42(5). As to the restrictions on revision of an assessment of disablement imposed by article 44(4), it said – “39. … We find that the review decision under appeal was made in consequence of ignorance of, or a mistake as to, a material fact. We find that on review the Respondent failed to take into account the very significant disabling nature of the non-accepted conditions namely COPD and cardiac condition.” In giving permission to appeal, the senior resident judge, who had not been the judge presiding at the hearing, pointed out that the reasons given on 15 September 2015 for the review decision that was under appeal had in fact referred to both COPD and the cardiac condition. When issuing case management directions, I suggested that, if the decision being reviewed was the decision of the First-tier Tribunal dated 20 August 2010, article 44(3) applied to impose further restrictions. 8. It is important when applying article 44 on an appeal to distinguish between the review decision against which the appeal has been brought and the decision that was under review (which may itself have been a review decision in relation to an even earlier decision). I accept the Secretary of State’s submission that it was not the decision of the First-tier Tribunal dated 20 August 2010 that was being reviewed here (at least in any material sense), because the assessment in that case had FS v Secretary of State for Defence (WP) [2017] UKUT 194 (AAC) CAF/3122/2016 4 expired. It was the Secretary of State’s assessment of 28 January 2015 that was reviewed in July 2015. Save perhaps to the extent that it could be regarded as a continuation of the review of the earlier 60% assessment, which was started by the 2010 decision of the First-tier Tribunal, the decision of 28 January 2015 had not itself been a review decision: it had merely been an assessment belatedly made following the expiry of the earlier interim assessment. 9. Thus, what mattered in this case was not whether the decision made in July 2015 had been made in consequence of ignorance of, or a mistake as to, a material fact but whether the decision of 28 January 2015 had been. It follows that the reasoning of both the panel sitting on 27 July 2016 (if it really meant to say what it did say) and that of the senior resident judge is flawed. On the other hand, the senior resident judge’s point holds good in respect of the earlier decision because the reasons given for that decision show clearly that the Secretary of State and his medical advisor were, unsurprisingly, even then well aware that much of the claimant’s disablement was due to non-accepted cardiac and respiratory conditions. 10. The Secretary of State submits, that the First-tier Tribunal appears to have taken a different view as to the extent to which disablement was caused by the nonaccepted conditions. It seems to me that it was in respect of the appropriate assessment of the overall disablement and the relative contributions of the accepted and non-accepted conditions where there were differences of view but, in any event, such differences of opinion are not enough to justify revising an assessment to the detriment of the claimant. Given that the Secretary of State had been well aware of the non-accepted conditions and had accepted that their contribution to the claimant’s overall disablement had to be ignored in the assessment of disablement for war pensions purposes, it is not obvious on what grounds it could be said that the assessment of 28 January 2015 was made in consequence of ignorance of, or a mistake as to, a material fact or of a mistake as to a law. In any event, the First-tier Tribunal’s statement of reasons did not provide an explanation. I therefore accept that the First-tier Tribunal’s decision is wrong in law. 11. Originally, the Secretary of State submitted that the case should be remitted to the First-tier Tribunal. However, both parties are now agreed that I should merely substitute a decision maintaining the previous assessment, thus reinstating the Secretary of State’s original decision. That seems to me to be a sensible approach in the circumstances of the case and I therefore give the decision set out above. Mark Rowland 10 May 2017 

Secretary of State for Defence v KR (WP) [2017] UKUT 0144 (AAC) CAF/1847/2016 1 IN THE UPPER TRIBUNAL Case No. CAF/1847/2016 ADMINISTRATIVE APPEALS CHAMBER Before E A L BANO Decision: My decision is that this appeal by the Secretary of State succeeds. I set aside the decision of the First-tier Tribunal and remit the case for re-hearing before a differently constituted tribunal. REASONS FOR DECISION 1. This is an appeal by the Secretary of State, brought with the permission of Judge Levenson, against the decision of the First-tier Tribunal given on 9 February 2016 allowing the claimant’s appeal against a decision made on 11 March 2015 refusing his claim for compensation under the Armed Forces Compensation Scheme 2011 (AFCS 2011). The claimant has now moved to Australia and has played no part in these proceedings. 2. The claimant was a Royal Marine who was deployed to Norway in January 2014 to take part in a cold winter warfare course. He returned to camp on 7 February 2014 in order to prepare his kit for the next phase of his training and, as he was walking back from the galley at about 18.30, he slipped on some ice. As a result of extending his arm while falling, the claimant injured his right shoulder and was subsequently repatriated and medically downgraded. 3. The claim for compensation was made on 16 June 2014. On 11 March 2015 a decision was made rejecting the claim, accompanied, as required by article 51 of AFCS 2011, by the reasons for the decision. The claimant appealed against the decision on 5 May 2015, but the decision rejecting the claim was maintained on reconsideration on 24 July 2015. At a hearing on 9 February 2016 at which the claimant was represented, but not present, the tribunal allowed the appeal for the following reasons: “It was accepted by the Appellant that he had slipped and it was not suggested by him that he was in a hazardous environment or participating in an activity of a hazardous nature. On the evidence before it, the Tribunal accepted that this was the case. His case was that he was training to improve or maintain the effectiveness of the forces. The Tribunal was aware from its own knowledge that such exercises for Marines involve going away for a period of time, during which period they are required to return to barracks to change/clean their kit before setting off on the next phase. They are under direction and not on operational stand down. The tribunal noted that this was corroborated by the EMIS records which referred to him as being “deployed” and being returned to his unit. It is therefore arguable that he was involved in training at the time of his injury. Secretary of State for Defence v KR (WP) [2017] UKUT 0144 (AAC) CAF/1847/2016 2 In any event the law only requires that he is participating in training to maintain or improve the effectiveness of the forces and does not specify that he must actually be training at the time. The Tribunal found that the Appellant was participating in a training exercise from which he had not been stood down. That was to improve or maintain the effectiveness of the forces and accordingly he is not precluded from receiving benefit. The exception in article 11(3) does not apply as a result of the operation of Article 11(4). Accordingly it allowed the appeal.” 4. In the grounds of appeal, settled by counsel, the Secretary of State contends that the claimant was not covered by the exception to the exclusion from entitlement under AFCS 2011 created by article 11(4)(c) because he was not actually participating in training when his injury occurred. The Secretary of State further submits that the tribunal’s decision was in error of law because it failed to consider whether the claimant’s injury was caused wholly or partly by service. 5. Entitlement to benefit for injury caused by service under AFCS 2011 is conferred by article 8, which provides: “(1) Subject to articles 11 and 12, benefit is payable to or in respect of a member or former member by reason of an injury which is caused (wholly or partly) by service where the cause of the injury occurred on or after 6th April 2005. (2) Where injury is partly caused by service, benefit is only payable if service is the predominant cause of the injury.” Article 11 provides for exclusions from entitlement in respect of injury caused by slipping, tripping or falling, with exceptions in certain cases, as follows: “(3) Except where paragraph (4) [or (9)] applies, benefit is not payable to or in respect of a person by reason of an injury sustained by a member, the worsening of an injury, or death which is caused (wholly or partly) by that member slipping, tripping or falling. (4) This paragraph applies where the member was participating in one of the following activities in pursuance of a service obligation— (a) activity of a hazardous nature; (b) activity in a hazardous environment; or (c) training to improve or maintain the effectiveness of the forces.” 6.. In support of the first ground of appeal, the Secretary of State relies on the decision of Judge Lloyd-Davies in CAF/2260/2014. The claimant in that case was guarding the perimeter of an exercise ground where physical training was taking place. After coming off duty, he went to his tent and while trying to get into bed he slipped against the metal bed frame and broke his wrist. Judge Lloyd-Davies allowed the Secretary of State’s appeal against the tribunal’s decision upholding the claim, for the following reasons: “It is clear that the applicant was not himself a trainee on the exercise…His was a supporting role of being on “maintenance duty”, which included guard Secretary of State for Defence v KR (WP) [2017] UKUT 0144 (AAC) CAF/1847/2016 3 duty. In my judgment it is clear that in order for Article 11(4)(c) to apply the applicant must be actually taking part in the programme to improve or maintain the effectiveness of the forces. Taken in the context of Articles 11(4)(a) and (b), it is clear that the exceptions provided for are where the applicant is participating in activity of a non-routine nature. It does not suffice if the applicant is part of a team which is facilitating the training activity to take place: active participation in the training is necessary.” 7. As the Secretary of State concedes, this case is not on all fours with CAF/2260/2014 because the claimant in that case was not in fact taking any part in the training which was being conducted at the location where the injury occurred. Nevertheless, I agree with the Secretary of State’s submission that the purpose of Article 11(4) is to provide an exception to the general principle that slipping, tripping and falling injuries are excluded from the scope of AFCS 2011 in cases where a claimant is put at increased risk as a result of requirements resulting from a ‘service obligation’ of a type specified by article 11(4). In the case of training, that will only be the case for so long as the person is subject to some form of direction, control or other constraint resulting from the training in which the claimant is participating. I do not consider that article 11(4)(c) applies to cases where there is no causal relationship between a claimant’s injury and training which the claimant is undergoing, and I therefore agree that paragraph 4(c) of article 11 does not apply to a claimant who suffers injury at a time when the requirements imposed on the claimant as part of the training have ceased to apply. In my judgment, in order to come within the scope of paragraph 4(c) of article 11, it is not enough if injury occurs during a deployment for the purpose of participating in training if there is no connection between the training which the claimant is undergoing and the injury which the claimant has received. That approach is also consistent with the approach of Judge Knowles in Secretary of State for Defence v A [2016] UKUT 0500 (AAC) at [50]. I therefore uphold the Secretary of State’s first ground of appeal. 8. In those circumstances, I do not consider it necessary to decide the second ground of appeal. However, I would like to make some observations about the procedure in this case. 9. The certificate rejecting the claim on 11 March 2015 stated that it was accepted “…that an exception to Article 11 applies as [the claimant] was on exercise in Norway whilst training to improve or maintain the effectiveness of the forces”, but then went on to find that service was not the predominant cause of the claimant’s injury because “he was not carrying out a task or activity that directly formed part of the training at the time of his injury”. The reconsideration decision notified to the claimant on 24 July 2015, stated that the original certificate had incorrectly informed him that an exception to article 11 applied in his case, but maintained the rejection of the claim on the basis that the ‘hazardous environment’ exception to the article 11 exclusion for slipping, tripping and falling in article 11(4)(b) was inapplicable. The ‘Opening Statement’ in the statement of case stated unhelpfully: “The appeal lies against the decision of the Secretary of State to reject the claimed condition: injury to right shoulder as not on the balance of probabilities, predominantly caused by service”. Secretary of State for Defence v KR (WP) [2017] UKUT 0144 (AAC) CAF/1847/2016 4 10. I reject the Secretary of State’s submission that: “it is plain from the terms of the first decision letter that it was not accepted that [the claimant’s] injury was caused by service, even if it was not excluded from compensation by article 11(3)”.. The stated reason for finding that service was not the predominant cause of the claimant’s injury related to whether the claimant fell within one of the article 11 exceptions. In so far as the rejection decision is intelligible at all, it suggests that the decision-maker committed the very error of which the Secretary of State now complains, namely, to treat the claimant’s injury as not having been caused by service because none of the exceptions to the article 11 exclusions applied. In my view the result of the erroneous and confusing decision of 11 March 2015 was to leave it wholly unclear whether there were any causation issues to be decided by the tribunal under article 8 of AFCS 2011, other than whether any of the exceptions to the exclusions in article 11 applied. 11. I consider that the position was made worse by the Secretary of State’s failure to comply with the requirements of rule 23(2)(e) of the Tribunal Procedure (First-tier Tribunal) (War Pensions and Armed Forces Compensation Chamber) Rules 2008, which requires the Secretary of State’s response to state “whether the decision maker opposes the appellant’s case and, if so, the grounds for such opposition”. Although the rule applies only to appeals in England and Wales, I consider that compliance with it is important for a number of reasons. Given the complexity of the legislation, it is inevitable that from time to time decisions notified to claimants will generate some degree of confusion and uncertainty with regard to the precise reasons for rejecting a claim, particularly where the exceptions to the exclusions in article 11 are involved. In such cases, rule 23(2)(e) of the Procedure Rules provides the submission writer with an opportunity to clear up any confusion and to clarify the legal and factual issues which need to be considered by all those involved in the appeal. In a jurisdiction such as this where many appellants live abroad or are prevented from attending hearings for other reasons, it is in my view particularly important for parties to have a clear understanding of the issues which the tribunal has to consider in order that they and their representatives can make effective preparations for the hearing of the appeal. 12. A further reason for compliance with rule 23(2)(e) is that section 5B of the Pensions Appeal Tribunals Act 1943 provides that a tribunal “need not consider any issue that is not raised by the appellant or the Minister in relation to the appeal”. The power to consider issues not raised by the parties is discretionary, but the tribunal must consciously consider whether to exercise the discretion and give reasons for its decision if asked to do so-see R(IB) 2/04. If the Secretary of State does not comply with the duty under rule 24(2)(e) to set out the grounds for opposing an appeal, it will in many cases be very much more difficult for the tribunal to identify the matters on which the Secretary of State relies in opposing the appeal and to exercise their powers under section 5B of the 1943 Act accordingly. 13. I am inclined to agree with Judge Wikeley in his determination of 20 May 2016 refusing permission to appeal that a finding hat the claimant’s injury was caused by service is implicit in the tribunal’s findings. However, as a result of the muddled and confusing decision letters and the Secretary of State’s failure to comply with rule 23(2)(e) of the Procedure Rules, it is not clear whether that was even an issue in the Secretary of State for Defence v KR (WP) [2017] UKUT 0144 (AAC) CAF/1847/2016 5 appeal, but since I am allowing the appeal for the reason given above, I do not have to decide that issue. 14. As the Secretary of State recognises, there may be a possible argument that the claimant was carrying out an activity in a ‘hazardous environment’, so as to bring him within the exception to the exclusion under article 11(3) created by article 11(4)(b) of AFCS 2011. This appeal was stayed pending determination of CAF/2213/2015. That appeal has now been decided by Judge Knowles as Secretary of State for Defence v A [2016] UKUT 0500 (AAC), but does not really assist in the present case. However, Judge Rowland is currently considering his decision in CAF/2693/2016, which also involves a fall in icy conditions. I am therefore remitting this case to the First-tier Tribunal to be reheard on the question of whether article 11(4)(b) applies in this case in the light of whatever Judge Rowland decides. E A L BANO 31 March 2017

JH v SSD (AFCS) [2017] UKUT 0140 (AAC) CAF/2622/2016 1 DECISION OF THE UPPER TRIBUNAL (ADMINISTRATIVE APPEALS CHAMBER) The DECISION of the Upper Tribunal is to dismiss the Appellant’s appeal. The decision of the First-tier Tribunal dated August 13, 2014 under file references AFCS/00260/2014 does not involve an error on a point of law. The decision of the First-tier Tribunal accordingly stands. This decision is given under section 11 of the Tribunals, Courts and Enforcement Act 2007. REASONS FOR DECISION The legal context of this appeal 1. This appeal is about the test for establishing whether there is a service cause to an injury sustained by a serviceman. I appreciate the outcome of this appeal will be a major disappointment to the Appellant. However, my conclusion is that the First-tier Tribunal properly applied the legal principles involved. Furthermore, even if the Tribunal’s reasoning might have been better expressed, it reached the only decision realistically open to it, applying those legal principles. The facts of this case 2. The facts are not in dispute. The Appellant, a former Flight Sergeant in the RAF, was the Convoy Imprest Officer for an exercise in North Africa in November 2010. He gave this account of what happened: ‘We were on the return leg of the convoy, travelling that day from Marrakesh in Morocco to Algeciras in Southern Spain. There had been a major delay in the port of Algeciras due to one of our vehicles breaking down on the ferry and the problems I encountered effecting a suitable repair to allow the vehicle to disembark. Unnecessary personnel had been transported to their accommodation. After this delay I had stopped for something to eat and was walking to my overnight accommodation on one of the major roads outside the port complex, it was dark and the area was lit with sodium lighting. I had crossed from one road to the next and was half way over a bridge/flyover, I was walking along a pedestrian pavement. This was the last thing I remember. I woke in an intensive care ward of the local Spanish hospital.’ 3. The Appellant, who was dressed in civilian clothes, had been struck from behind by a vehicle which did not stop and which knocked him over the parapet, dropping onto the road below. He suffered a broken pelvis and damage to his left hip and arm amongst other injuries. There is no dispute over the serious extent and ongoing effects of his injuries. The Appellant was medically discharged in March 2013. JH v SSD (AFCS) [2017] UKUT 0140 (AAC) CAF/2622/2016 2 The relevant legislation 4. Article 8 of the Armed Forces and Reserve Forces (Compensation Scheme) order 2011 (SI 2011/517; “the 2011 Order”) provides as follows: ‘Injury caused by service 8.—(1) Subject to articles 11 and 12, benefit is payable to or in respect of a member or former member by reason of an injury which is caused (wholly or partly) by service where the cause of the injury occurred on or after 6th April 2005. (2) Where injury is partly caused by service, benefit is only payable if service is the predominant cause of the injury.’ 5. It followed that the critical question was whether, for the purposes of the Armed Forces Compensation Scheme (AFCS), the Appellant’s injury was “caused (wholly or partly) by service” and, if the latter, whether service was “the predominant cause of the injury.” This is referred to below as “the two-stage test”. Article 2(1) further provides that “‘predominant’ means more than 50%.” The Secretary of State’s decision on the Appellant’s AFCS claim 6. On March 20, 2013, the Service Personnel and Veterans Agency (now Veterans UK; here simply “the Agency”) refused to make an award under the AFCS. Its reason was that “as the driver of the vehicle was the cause of the accident the Secretary of State does not accept on the balance of probabilities that your injuries were predominantly due to service”. The Appellant’s then legal representatives challenged that refusal. 7. On August 13, 2013 the Agency reconsidered the decision but refused to change it. The Agency’s letter explained its reasoning as follows: ‘It is true that you would not have been where you were when the accident occurred If you were not serving in the armed forces at the time, however this still does not mean that service was the predominant cause. These facts cannot be differentiated from many other background factors in the absence of which, you would not have been where you were at any particular time. These factors merely form part of the background setting.’ The Appellant’s appeal to the First-tier Tribunal 8. The Appellant appealed to the First-tier Tribunal. The Agency prepared a response to that appeal. This stated that the issue for determination was whether the Appellant’s injuries were “predominantly caused by or predominantly made worse by service” in accordance with the 2011 Order. The Agency’s response repeated the reasoning in its letter of August 11, 2013 and included the following “Comment by the Secretary of State”: ‘…The Secretary of State does not dispute that [the Appellant] was fulfilling an obligation of his service at the time of the accident, and does not dispute that the injuries for which [the Appellant] is seeking benefit arose from that accident. This is one of a multitude of factors leading to his injuries, not all of which are related to [the Appellant’s] service. The Secretary of State accordingly invites the Tribunal to JH v SSD (AFCS) [2017] UKUT 0140 (AAC) CAF/2622/2016 3 determine whether service was the predominant cause, or the predominant cause of any worsening.’ 9. The Agency’s response cited the relevant provisions of the 2011 Order but made no reference to any relevant case law. Fortunately a Judge of the First-tier Tribunal, on reviewing the file, directed the Agency to file a copy of Upper Tribunal Judge Mesher’s decision in EW v Secretary of State for Defence [2011] UKUT 186 (AAC), [2012] AACR 3 (“EW v SSD”). This in turn prompted the Agency also to file a “Further Comment by the Secretary of State”, which referred to various passages in EW v SSD and expanded a little on its reasons for resisting the appeal. The Agency reiterated its view that “Whilst it is accepted that service placed [the Appellant] in Algeciras, Southern Spain on that day, service provided what was no more than a background setting to the accident, an accident that could have befallen any other pedestrian on that particular day.” The Agency concluded that no payment was due under the AFCS as the Appellant’s injuries “were not predominantly due to service”. The First-tier Tribunal hearing and decision 10. The First-tier Tribunal (“the Tribunal”) heard the Appellant’s appeal at Southampton on August 13, 2014. The Appellant gave evidence and was assisted by the regional Royal British Legion representative. The Tribunal dismissed the appeal. In its summary reasons, prepared on the day on what was then the standard template in use in the Chamber, the Tribunal briefly set out the facts (as described above) and also found there was no evidence that the Appellant had been targeted as a member of the British armed forces. Paragraph 11 of its reasons is the nub of its decision (I have added the subparagraph notations (a), (b) and (c) for ease of reference): ‘11. Given the Tribunal’s findings of fact and the relevant law, the reasons for the Tribunal’s Decision are as follows: (a) The Tribunal has considered Article 8 and whether or not the injury was predominantly caused by service. (b) The Tribunal relies on the case of EW v Secretary of State for Defence (AFCS) [2011] UKUT 186 (AAC) which has very similar facts. In particular paragraph 27 which states: ‘The injury on the journey to work being a manifestation of a risk run by the general public using the streets of Lille, that injury could not properly be regarded as caused by his service, let alone being predominantly caused by service.’ (c) The Tribunal find that service was the setting and not the predominant cause of the injury. In making this finding we note that the appellant was in civilian clothing on a pedestrian pavement, in the dark and was hit by a hit and run driver. In the circumstances service cannot be the predominant cause. The driver of the vehicle was the cause of the accident and injuries. The Tribunal did not consider Article 11 which is relevant only if service is found to be the predominant cause of the injury.’ 11. The Appellant applied for permission to appeal to the Upper Tribunal. This was granted by then Chamber President, on the basis that it was arguable the Tribunal may have elided the two-stage Article 8 test, or failed to have provided an adequate explanation of its reasoning on that issue, given the subsequent decision of the threejudge panel of the Upper Tribunal in JM v Secretary of State for Defence (AFCS) [2015] UKUT 332 (AAC); [2016] AACR 3 (“JM v SSD”). JH v SSD (AFCS) [2017] UKUT 0140 (AAC) CAF/2622/2016 4 The Upper Tribunal proceedings 12. I held an oral hearing of the Appellant’s appeal on March 15, 2017. The Appellant attended, represented by Mr Glyn Tucker, Senior Pensions and Compensation Officer of the Royal British Legion, and Ms Galina Ward of Counsel appeared for the Secretary of State, instructed by the Government Legal Department. I am grateful to both representatives for their clear and well-argued oral submissions and for their earlier detailed and helpful skeleton arguments. Some common ground between the parties: a case of one process cause 13. In JM v SSD the Upper Tribunal three-judge panel made the following observations: ‘80. “Cause” is a word with many overtones. It may refer to an event that immediately brings about an outcome or one that leads to it more remotely. It can also be used to mean attribution, viz that something is capable of bringing about an outcome, or can be regarded as bringing it about, or can explain an outcome. Whether something is capable of, or regarded as bringing about a particular result involves a degree of judgment which is not generally required in straightforward cases of physical cause and effect; for example, where A punches B on the nose which then bleeds. 81. Also the language of the test identifies “service” as the cause or predominant cause. But, like “negligence” or “employment”, “service” is an abstract concept whilst “injury” is caused by one or more events or processes acting on the body or mind. 82. So in identifying the abstract cause of an injury it is necessary, as a matter of language and concept, to identify the events or processes – which we shall call the “process cause or causes” of the injury – and then to ask whether it is, or they are, sufficiently linked to service to satisfy the test that the injury due to each process cause is caused by service (or, using a shorthand, that that process cause is a service cause). Our use of the description “process cause or causes” is merely that and nothing else should be read into it.’ 14. The Upper Tribunal three-judge panel also referred to Judge Mesher’s decisions in EW v SSD and SV v Secretary of State for Defence (AFCS) [2013] UKUT 541 (AAC) (“SV v SSD”), further observing that “in both EW and SV there was only one cause of the claimant’s injury: – being struck by a car in one case and diving into a sandbank in the other – and the issue was simply whether that cause was a service cause” (at paragraph 123). Based on that analysis, Mr Tucker and Ms Ward agreed, as I consider that they were compelled to do, that this too was a case in which there was only one process cause of the injuries: being struck by a vehicle. The question then was one of attribution – was that process cause, or was it not, a service cause? 15. I return to that issue of attribution later. First, however, I must deal with the Appellant’s principal challenge to the reasoning of the First-tier Tribunal. The Appellant’s principal challenge to the First-tier Tribunal’s decision 16. The primary focus of Mr Tucker’s submission was the Tribunal’s treatment of EW v SSD, which he argued disclosed an error of law. Mr Tucker noted that in its reasons the Tribunal had cited directly from Judge Mesher’s decision in EW v SSD and in particular the very first sentence of paragraph 27 of that decision. However, as Mr Tucker correctly JH v SSD (AFCS) [2017] UKUT 0140 (AAC) CAF/2622/2016 5 pointed out, Judge Mesher had revisited that same passage in his later decision in SV v SSD in which he had described that single sentence as the “offending” words (at paragraph 35). In summary, Mr Tucker argued that the Tribunal had misread the import of the decision in EW v SSD. He contended that the Tribunal had treated the first sentence of paragraph 27 of that decision as a proposition of completely general application, with the result that it had not properly considered, or at the very least not given adequate reasons for finding, whether the Appellant’s injury was not sufficiently linked to service to be categorised as caused by service. Moreover, given there was only one process cause in this case, considerations of the predominancy test did not come into play. Mr Tucker further argued that the attribution question required further findings of fact, e.g. as to whether the Appellant was following the most direct route to his temporary accommodation, why he needed to buy food on the way, the state of the traffic, etc. All that, he submitted, pointed to a need to set aside the Tribunal’s decision for error of law and for the appeal to be remitted to be re-heard by a fresh panel. 17. Ms Ward acknowledged that the Tribunal’s reasoning relied heavily on EW v SSD, but resisted the suggestion the Tribunal had erred in law. In doing so she made three particular submissions. The first was that Judge Mesher’s decision in SV v SSD had subsequently been set aside by consent in the Court of Appeal, and so his reasoning revisiting EW v SSD fell too. The second was that whether or not the first sentence of paragraph 27 was properly seen as a general statement of principle, there was no principled distinction on the facts between EW v SSD and the present appeal. The third was that even as qualified in SV v SSD, Judge Mesher found that there were no countervailing factors in EW v SSD to suggest that there was a service cause in that case, and the same applied here too. The Upper Tribunal’s analysis 18. I must start with the observation that this was a case in which neither the Appellant nor the Tribunal was assisted by the Secretary of State’s written response to the appeal (nor indeed by the other explanations on file for the Agency’s decision). The Agency’s arguments prior to the Tribunal hearing never really properly engaged with the issue of attribution or with the two-stage nature of the test in Article 8. 19. However, the question for the Upper Tribunal is whether the Tribunal’s decision involves an error of law. If the Agency’s somewhat confused reasoning had infected the Tribunal’s approach, then it might well be arguable that the Tribunal erred in law. However, I do not find that to be the case. 20. The Tribunal’s reasoning is encapsulated in paragraph 11 of its summary reasons for the decision (see paragraph 10 above). This fell into three parts. 21. First, in paragraph 11(a) the Tribunal stated that it had “considered Article 8 and whether or not the injury was predominantly caused by service.” This undoubtedly compresses the statutory test. As noted above, there is a two-stage test under Article 8: first, was the injury caused wholly or partly by service and, if the latter, was service the predominant cause of the injury. So, strictly speaking, the question was whether or not the injury was solely or predominantly caused by service (see JM v SSD at paragraph 123). However, I do not regard this as a material error of law – I bear in mind that these are the reasons of a busy Tribunal, formulated under considerable pressures of time, and not some legislative text devised with the benefit of ample time for reflection. A compressed statement as to the statutory test does not mean that the Tribunal JH v SSD (AFCS) [2017] UKUT 0140 (AAC) CAF/2622/2016 6 necessarily elided the two-stage process. As Holman J. put it in B v B (Residence Order: Reasons for Decision) [1997] 2 F.L.R. 602 (at 606): ‘I cannot emphasise strongly enough that a judgment is not to be approached like a summing-up. It is not an assault course. Judges work under enormous time and other pressures, and it would be quite wrong for this court to interfere simply because an ex tempore judgment given at the end of a long day is not as polished or thorough as it might otherwise be.’ 22. Secondly, the nub of the Tribunal’s reasoning is to be found in paragraph 11(c). On the facts that the Tribunal found, its reasoning and conclusion there were eminently sustainable. It is true that it would have been better if the Tribunal had referred to “the sole or predominant case” or “the only or predominate cause” rather than simply “the predominant cause of the injury”. However, the same observations as to the realities of tribunal life as referred to in the previous paragraph apply equally here. As ever, it is important to focus on the substance and not the form of the Tribunal’s decision. With that focus on the substance, I am satisfied that the Tribunal in effect approached the twostage test in the proper manner. It found that the cause of the accident was the action of the hit-and-run driver and that service was only the setting, i.e. service was noncausative. As the Tribunal found there was a sole non-service process cause of the injury, it necessarily followed that service was neither the only nor the predominant cause of the injury. 23. That takes us thirdly to paragraph 11(b) of the Tribunal’s reasoning and its reference to EW v SSD, which was the main target of Mr Tucker’s attack. This passage formed part of the underpinning for the Tribunal’s central conclusions in paragraph 11(c). Notwithstanding the careful way in which Mr Tucker put his arguments, I am not persuaded that the Tribunal erred in law here. It is perfectly true that the very first sentence of paragraph 27 of EW v SSD was revisited and qualified by Judge Mesher in SV v SSD. Ms Ward advanced three reasons (see paragraph 17 above) to support her contention that the Tribunal had not erred in this regard. 24. The first of these was that Judge Mesher’s further reasoning in SV v SSD necessarily fell when that decision was set aside by consent in the Court of Appeal. I do not regard this as particularly compelling. There are undoubted complications where a decision of a Social Security Commissioner (or now the Upper Tribunal) is set aside by consent in the Court of Appeal (see e.g. R(FC) 1/97, discussing the fate of CFC 4/1991 in Kostanczwk v Chief Adjudication Officer (August 21, 1992) in the Court of Appeal). The decision in SV v SSD raised a number of discrete issues, and Judge Mesher’s general approach on causation was relied on in part by the three-judge panel in JM v SSD, albeit that was decided before the Court of Appeal’s consent order in SV v SSD. In any event, it is fair to say that Miss Ward did not press this argument with any great conviction at the oral hearing. I was, however, persuaded by her second and third arguments. 25. The second argument was that there were in any event no principled points of distinction between the facts in EW v SSD and in the present case. In both cases the victims were travelling between two places where they were required to be for service reasons; they were travelling on foot where that was either the only option or a reasonable choice; the hit-and-run drivers were never traced and there was no evidence as to motive, if any; road conditions were poor; and the victim was in a pedestrian space JH v SSD (AFCS) [2017] UKUT 0140 (AAC) CAF/2622/2016 7 (a pedestrian crossing and a pavement respectively). The fact that the serviceman in EW v SSD was in uniform was not a material consideration. Mr Tucker laid stress on the fact that the officer in EW v SSD was on his way to work, so it was effectively a commuting accident, whereas the Appellant here was still on duty as part of the convoy operation. However, as Ms Ward noted, the test is not whether or not the claimant was on or off duty (see EW v SSD at paragraph 25 and JM v SSD at paragraph 100(vi)). Given all that, I am satisfied the Tribunal was entitled to say that there were “very similar facts” as between the two cases and so the same outcome followed. 26. I find Ms Ward’s third reason to be equally persuasive. She argues that even as qualified by SV v SSD, Judge Mesher’s point was that his observation in the first sentence of paragraph 27 of EW v SSD presupposed that there were no other competing factors. As Judge Mesher explained at paragraph 36 of SV v SSD (emphasis added): ‘36. The first sentence of paragraph 27 of EW appears to set out a proposition of completely general application. However, it is in my judgment plain from the overall context and in particular what was said in paragraph 28 that the conclusion in the first sentence of paragraph 27 was limited to the particular circumstances of the case in EW, where there were not any countervailing factors of the kind mentioned in paragraph 28. There is a warning in that paragraph that each case must be considered on its merits, i.e. not regarded as conclusively determined according to the result reached on the facts in EW. Accordingly, in the present case, the factor that the claimant’s injury was a manifestation of a risk run by members of the general public using the same public beach was not conclusive against causation by service. There were other relevant factors also to be taken into account. Those circumstances leave the case short of the required degree of certainty that there was only one result that the tribunal of 15 June 2012 could legally and rationally have reached on the evidence if it had properly considered the issue of causation.’ 27. The “countervailing factors” to which Judge Mesher was referring to were, in the context of EW v SSD, those such as “a person being targeted because of their uniform or of carrying service equipment that is linked to the occurrence of the incident” (EW v SSD, paragraph 28). In the course of oral argument Ms Ward gave another hypothetical example which might potentially qualify, such as where a serviceman stationed in the middle of the road directing traffic round a broken down convoy vehicle was accidentally struck by a passing motorist. In the present case, however, there simply were no countervailing factors, the Tribunal having found as fact that there was no evidence to support the theory that the Appellant may have been targeted as British service personnel. This was, very simply, a tragic accident that could have happened to anyone, whether serviceman or civilian. I agree with Ms Ward that the various possible factual matters to which Mr Tucker referred – e.g. the route taken and the state of the traffic – were not matters which would have gone into the balance as potential countervailing factors. I note in any event that the Appellant was represented by RBL at the Tribunal hearing and it is clear from the members’ various records of proceedings that they carefully and fully explored the factual circumstances leading up to the incident itself. 28. In conclusion, I agree with Ms Ward’s comment that the Tribunal might have used more words, but there was not a great deal more that could be said. The Tribunal’s reasons were undoubtedly compressed, but they were just about adequate and did not disclose any material error of law. This was a case in which there was only ever one JH v SSD (AFCS) [2017] UKUT 0140 (AAC) CAF/2622/2016 8 process cause, so the Tribunal did not need to go through the series of four steps subsequently identified by the Upper Tribunal three-judge panel in JM v SSD (at paragraph 118), which was plainly a multi-factorial case. This was a case in which service was why the Appellant was where he was and when he was, but service was not a cause of the injuries he sustained. The Tribunal was also right not to address the arguments that had been put around Article 11, as that provision only came into play if the Appellant otherwise fell within the terms of Article 8. 29. I should add that I have considered in the alternative the position if I am wrong about the adequacy of the Tribunal’s reasoning. I am driven to the conclusion that this would have had no material bearing on the outcome of the appeal. This is a classic case where service is the setting rather than the only or predominant cause. The only link with service is that the accident took place at a time and in a place where he was only present due to his service. But in taking a pedestrian route along the streets of Algeciras outside the port he was exposed to the same risk of being struck by a hit-and-run driver as any member of the public. 30. As the three-judge panel of the Upper Tribunal held in JM v SSD, “deciding whether a process cause is a service cause is an exercise of attribution, and so, of categorisation” (at paragraph 83). Furthermore: ‘87. It was also common ground that the change in wording from “attributable” in the war pensions instruments to “caused by” in the AFCS did not mark a change in the attributive, and hence categorisation, exercise involved in causation in the latter. 88. We agree and we therefore consider that the principles in the old case law relating to “attributable to service” remain relevant because they give guidance on the link that is required between the process cause and service to make it a service cause and so to satisfy the test that the injury be caused wholly or partly by service. 89. It follows that they provide assistance in the exercise of categorisation of process causes that is involved.’ 31. In that context Ms Ward relied in particular on the dicta of Denning J in Minister of Pensions v Chennell [1947] KB 250 (cited by Judge Mesher in EW v SSD at paragraph 30) to the effect that “Persons may be more likely to be involved in an accident in a London street than in a country road, but the cause of an injury in any particular case is not the visit to London but the negligence of someone or other.” 32. Given the attribution principles developed in the war pensions case law, I therefore conclude in any event that this was a classic case of service as setting rather than cause, and for much the same reasons as Judge Knowles QC set out in Secretary of State for Defence v PA (AFCS) [2016] UKUT 500 (AAC) (at paragraphs 42-44). Conclusion 33. For the reasons explained above, the Tribunal’s decision involves no material error of law. I must therefore dismiss the appeal (Tribunals, Courts and Enforcement Act 2007, section 11). Signed on the original Nicholas Wikeley on 30 March 2017 Judge of the Upper Tribunal

JL v Secretary of State for Defence [2016] UKUT 0482 (AAC) CAF/2565/2015 1 IN THE UPPER TRIBUNAL Case No. CAF/2565/2015 ADMINISTRATIVE APPEALS CHAMBER Before: Mr E Mitchell, Judge of the Upper Tribunal Decision: The decision of the First-tier Tribunal (ref. AFCS/00103/2014) taken on 19 February 2014, involved no material error on a point of law. Its decision is not set aside and this appeal is DISMISSED. Hearing: 20 July 2016 at Field House, Bream’s Buildings, London Attendances: Mrs Langford represented herself (informally assisted by Mr Wright and Ms Bamford, law students). For the Respondent Secretary of State, Mr T Buley, of counsel, instructed by the Government Legal Department. Introduction 1. Despite my sympathy for Mrs Langford, not diminished in any way by her dignified conduct of these proceedings, I have to dismiss her appeal. Since she was married to another at the date on which Air Commodore Green died, she is not entitled to the benefits granted to a surviving adult dependant by the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011 (“2011 Order”). Background 2. Mrs Langford was the long-term partner of Air Commodore Green who died unexpectedly on 17 May 2011. Mrs Langford made a claim for benefits under the 2011 Order on 20 November 2013. The Secretary of State refused her claim on 8 th January 2014. Mrs Langford appealed to the First-tier Tribunal 3. The First-tier Tribunal dismissed Mrs Langford’s appeal on 19 September 2014. It found that, at the date of the Commodore’s death, she was married to Mr Langford but “they had been separated for many years”. Since Mrs Langford was married to someone else, she was prevented from marrying Air Commodore Green and could not therefore satisfy the 2011 Order’s definition of surviving adult dependant. 4. The First-tier Tribunal rejected Mrs Langford’s argument that the 2011 Order, as construed by the Secretary of State, resulted in discrimination contrary to Article 14 of the European Convention on Human Rights. She argued discrimination on two grounds, age and marital status. JL v Secretary of State for Defence [2016] UKUT 0482 (AAC) CAF/2565/2015 2 5. In relation to marital status, the Tribunal said Mrs Langford relied on the Court of Appeal’s decision in Ratcliffe v Secretary of State for Defence [2009] EWCA Civ 29 to argue marital status was a relevant status under Article 14. However, according to the Tribunal, Ratcliffe concerned pre-2005 rules and the compensation scheme was altered in response to the decision to provide for approximately equal treatment of married and unmarried partners. In Ratcliffe, Hooper LJ held “where alleged discrimination in the field of pensions is based on non-suspect grounds, courts will be very reluctant to find that discrimination is not justified”. Mrs Langford had not supplied any evidence of “suspect grounds” for the provision made for surviving adult dependants in the 2011 Order. 6. In relation to age, Mrs Langford had argued the provision made in the 2011 Order “discriminates indirectly against older couples because they are more likely to be in a relationship where there is a subsisting marriage in the background to be a person from whom one partner is estranged or separated”. Mrs Langford’s argument was rejected because she provided no “statistical evidence to support her contention nor to show that that the discrimination she complains of is ‘suspect’”. Legal Framework 7. Article 29(1) of the 2011 Order provides for benefits payable for the death of a member. These include: “(a) a survivor's guaranteed income payment payable until death to a surviving spouse, civil partner or surviving adult dependant; (b) a bereavement grant payable to a surviving spouse, civil partner, surviving adult dependant, or eligible child”. 8. Articles 29(2) gives the Secretary of State power to withhold benefit where the member and the surviving spouse married less than six months before the death of the deceased. There is a similar power in respect of civil partners in Article 29(3). 9. “Surviving adult dependant” is defined by Article 30: “A person is a surviving adult dependant in relation to a deceased member or former member if, at the time of the deceased's death— (a) the person and the deceased were cohabiting as partners in a substantial and exclusive relationship; (b) the deceased leaves no surviving spouse or civil partner; (c) the person and the deceased were not prevented from marrying or forming a civil partnership; and JL v Secretary of State for Defence [2016] UKUT 0482 (AAC) CAF/2565/2015 3 (d) either the person was financially dependent on the deceased or they were financially interdependent.” 10. Those are cumulative conditions (as shown by the use of “and” before the final condition) and so, where the person and the deceased were prevented from marrying, the person cannot be a surviving adult dependant for the purposes of the 2011 Order. 11. Part 2 of Schedule 1 to the 2011 Order provides that “a relationship is not an exclusive relationship if (a) one or both of the parties to the relationship is married to…someone other than the other party to the relationship…”. 12. Article 81 provides for a survivor’s additional guaranteed income payment, and Article 83 for an additional bereavement grant, but, again, a person must either be a surviving spouse, civil partner or “surviving adult dependant”. The High Court’s decision in Langford v Secretary of State for Defence [2015] EWHC 875 (Ch) 13. This case arose from Mrs Langford’s separate claim for a pension under the Armed Forces Pension Scheme Order 2005. Under the scheme rules in Schedule 1 to the Order, the Secretary of State had power to “award a surviving adult dependant a pension for life”. Rule E.2(3) provides that a person is a surviving adult dependant if the person satisfies the Secretary of State that, at the date of death, certain conditions were satisfied including that “the person and the member were not prevented from marrying”. 14. The Secretary of State decided that the rule E.2(3) conditions were not met and his decision was upheld by a Deputy Pensions Ombudsman. Mrs Langford appealed, on a point of law, to the High Court under section 151(4) of the Pension Schemes Act 1993. 15. The High Court (Mr Timothy Fancourt Q.C. sitting as a Deputy High Court Judge) rejected Mrs Langford’s argument that the phrase “prevented from marrying” did not refer to a person who was already married, being instead only concerned with impediments to marriage due to consanguinity or youth. The Judge found that the phrase applied whenever a person faced a legal impediment to marrying. Although not referred to by the Judge, he may well have had in mind, as I put to the parties at the hearing of this appeal, section 11(b) of the Matrimonial Causes Act 1973: “A marriage… shall be void on the following grounds only, that is to say – (b) that at the time of the marriage either party was already lawfully married…”. 16. So far as discrimination was concerned, it was common ground that “the Putative right to scheme benefits is property within A1 of ECHR” and “the Appellant has been subject to differential treatment within the ambit of the Convention right provided by A1P1”. JL v Secretary of State for Defence [2016] UKUT 0482 (AAC) CAF/2565/2015 4 17. The Judge found that Mrs Langford’s “status of living with one person as a life partner while remaining married to another could properly be described as a “personal characteristic” for Article 14 purposes. The Judge also pointed out that “whether the comparator is a true analogue” and “whether differential treatment is justified can merge into one another”. 18. The Judge observed that a “person who is married may be expected, in the majority of cases, to have some claim on their spouse…for financial support if needed”. And that difference “provides the justification for differential treatment” in Mrs Langford’s case which was categorised as a “non-suspect” ground where the test for justification is lower than in suspect ground cases such as race or sex. The arguments on this appeal and my conclusions 19. In granting permission to appeal, I did not impose restrictions. Therefore, all grounds relied on by Mrs Langford in her notice of appeal could be argued. In her skeleton argument she put forward arguably additional grounds. At the hearing, Mr Buley confirmed the Secretary of State did not object to that. I permitted Mrs Langford to rely on all the arguments in her skeleton argument. Whether the First-tier Tribunal misconstrued the 2011 Order 20. Mrs Langford argued that her extant marriage did not prevent her from being in a substantial and exclusive relationship with Air Commodore Green, i.e. limb (a) of the definition of “surviving adult dependant”, because, for the purposes of Part 2 of Schedule 1 to the Order, “the natural meaning of the word ‘married’ pertains to a social and not exclusively legal status”. 21. At the hearing, Mrs Langford drew attention to limb (c) of the definition of surviving adult dependant which refers to the deceased and the claimant not being prevented from marrying. If this is read with Part 2 of the Schedule, it shows, she argues, that limb (c) is not intended to catch a person whose ability to marry the deceased was restricted by the fact that the person was already married (only those unable to marry for reasons of consanguinity or youth). Otherwise, what would be the purpose of Part 2 of Schedule 1? So, on Mrs Langford’s argument, neither Part 2 of Schedule 1 nor limb (c) of the definition of “surviving adult dependant” prevented her from being Air Commodore Green’s surviving adult dependant. 22. Ingenious though Mrs Langford’s argument is, I agree with Mr Buley for the Secretary of State that it is wrong. 23. It stretches the statutory wording past breaking point to argue that, in Part 2 of Schedule 1, “married” encompasses a social status as well as the legal status of marriage. “Married” means exactly what it says. JL v Secretary of State for Defence [2016] UKUT 0482 (AAC) CAF/2565/2015 5 24. The Matrimonial Causes Act 1973 does not in terms prohibit the entering into of any type of marriage. Instead, it provides that certain purported marriages are void and others are voidable. The void categories in section 11 include that “at the time of the marriage either party was already lawfully married”. Where a purported marriage would be void, this must amount to the parties being prevented from marrying for the purposes of limb (c) of the definition of surviving adult dependant. 25. I accept that this interpretation means there is some duplication across the surviving adult dependant provisions. A person who is married is excluded by Part 2 of Schedule 1 as well as limb (c) of the definition. However, this does not indicate a legislative intention that the terms used should bear something other than their usual meaning. It is more likely simply to reflect a desire for legislative simplicity. Further, there will be cases where a claimant is excluded by limb (c) but not Part 2 of Schedule 1. But, in any event, if Part 2 of Schedule 1 does indicate a legislative intention to exclude from the ‘prevented from marrying’ category in limb (c) of the definition those who are already married that does not assist Mrs Langford. Part 2 of Schedule 1 would operate to deem her not to have been in an exclusive relationship with Air Commodore Green. At the hearing, I sensed that Mrs Langford might find this offensive but it is simply a reflection of the statutory scheme and not a comment on her actual commitment to the Commodore. 26. For the above reasons, I conclude that the Tribunal’s decision was in conformity with the 2011 Order, as interpreted according to purely domestic principles of statutory construction, and dismiss this ground of appeal. Whether the Commodore’s death was caused wholly or partly by service 27. It is true that the First-tier Tribunal did not address this question but it did not need to once it had decided that Mrs Langford’s extant marriage prevented her from satisfying the statutory definition of “surviving adult dependant”. I dismiss this ground of appeal. Whether Article 1 of the First Protocol to the European Convention on Human Rights calls for a different result 28. Article 1, headed “Protection of property”, provides: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” JL v Secretary of State for Defence [2016] UKUT 0482 (AAC) CAF/2565/2015 6 29. Section 3(1) of the Human Rights Act 1998 provides “so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights”. 30. Mrs Langford argues the benefits she sought were a possession for the purposes of Article 1 because she had a legitimate expectation of receiving them were the Commodore to die. She relies on the European Court of Human Rights’ (ECtHR) decision in Pine Valley Developments v Ireland [1992] 14 EHRR 319. Mrs Langford argues the following features of her case establish that legitimate expectation: (a) she was in a substantial relationship with the Commodore which was akin to marriage; (b) the Commodore made clear promises and representations that she would be “looked after” by the R.A.F; (c) the R.A.F. through its conduct accepted and acknowledged her substantial relationship with the Commodore; (d) she was allowed to join the Armed Forces Pension Society which rendered her expectation of benefits under the 2011 Order legitimate. 31. Mrs Langford further argued that, denying her benefits under the 2011 Order, would not be a proportionate response to a legitimate aim. In the circumstances of her case, it would “have no logical justification…and should therefore be considered both arbitrary and irrational”. Mrs Langford relied on the decision in R (Kelsall) v Secretary of State for the Environment [2003] EWHC Admin 459. 32. I agree with Mr Buley for the Secretary of State that this ground must fail. Mrs Langford’s expectation of benefits under the 2011 Order did not amount to a possession for the purposes of Article 1 of the First Protocol. Mr Buley relies on the decision in R (RJM) v Secretary of State for Work & Pensions [2008] All ER (D) 220 (Oct). 33. Pine Valley was an Irish case arising from nullification of a grant of outline planning permission. The ECtHR did, however, find that a legitimate expectation arose where, in reliance on the outline planning permission, a development company purchased land. As a result, the planning permission was “a component part of the applicant companies’ property”. 34. I do not accept that Pine Valley assists Mrs Langford’s free-standing Article 1 argument. The decision was an application of the principle that, for a claim of some sort to amount to a “possession”, an applicant must show a legal entitlement to the economic benefit in question, or a legitimate expectation that the entitlement will materialise. Even if I assume this encompasses state benefits, it is clear that the only legitimate expectation Mrs Langford had JL v Secretary of State for Defence [2016] UKUT 0482 (AAC) CAF/2565/2015 7 was for her claim to be decided in accordance with the 2011 Order. The Commodore was not in a position to give an undertaking that, were Mrs Langford to make a claim, she would be granted some kind of dispensation from the terms of the 2011 Order. And the evidence shows that the R.AF. / Secretary of State, while for many purposes acting as if the Commodore and Mrs Langford were a married couple, gave no undertaking that she would be entitled to those benefits that the 2011 Order grants to a surviving adult dependant as defined. 35. To conclude, Mrs Langford’s only legitimate expectation was for her claim to be determined in accordance with the 2011 Order. I reject Mrs Langford’s free-standing Article 1 of Protocol 1 argument (which arguably was not in fact advanced before the First-tier Tribunal). Whether Article 14 of the European Convention on Human Rights, taken with Article 1 to Protocol 1, calls for a different result 36. The argument advanced on this appeal was similar to that rejected by the High Court in Langford except Mrs Langford also argued she had been discriminated on the ground of age, which she said was a ‘suspect ground’, because “age directly relates to the likelihood of being separated but not divorced”. 37. The Secretary of State resisted by relying on the reasoning of the High Court in Langford. As in that case, the Secretary of State accepted that Mrs Langford’s treatment by the 2011 Order fell within the ‘ambit’ of Article 14 of the Convention, taken with Article 1 of Protocol 1, but that the differential treatment was justified. In relation to the age aspect of Mrs Langford’s argument the Secretary of State submits; “There is nothing to show there is in fact a differential effect in this regard, and there is no obvious reason why this should be so (i.e. no reason why older people are more likely to be disadvantaged by a rule requiring that they not be married to a person other than the member of the Armed Forces in respect of whose death they are making a claim)”. 38. I agree with the Secretary of State. 39. As Mr Fancourt Q.C. in Langford found, and with whose decision I agree, the differential treatment of a person who is married and a person who is not, under the 2011 Order, is justified because a “person who is married may be expected, in the majority of cases, to have some claim on their spouse…for financial support if needed”. In framing the 2011 Order, i.e. deciding how to distribute limited state funds, the Secretary of State was entitled for this reason to treated married partners who would otherwise satisfy the definition of “surviving adult dependant” differently from unmarried partners. JL v Secretary of State for Defence [2016] UKUT 0482 (AAC) CAF/2565/2015 8 40. I do not accept that Mrs Langford was discriminated against, directly or indirectly, on the ground of age. No evidence has been supplied to support the argument that older partners of service personnel are more likely than younger partners to be married to another, nor is that, in my view, inherently likely to be the case. Other grounds 41. Mrs Langford argues her treatment amounts to a breach of contract although she concedes it “may not be a formal contract”. There was no contract entered into between the Secretary of State and Mrs Langford that she would be entitled to death benefits analogous to those provided for by the 2011 Order. This is obvious and this ground must fail. 42. Mrs Langford argues a proprietary estoppel, arising by way of representation, prevents the Secretary of State from denying her those benefits granted to a surviving adult dependant by the 2011 Order. Mrs Langford argues the Commodore’s pension was a form of property, to which he had authority to nominate her as beneficiary, he made clear and unambiguous representations that she would be looked after, and provided with a pension, by the R.A.F. which she reasonably relied on to her detriment. 43. The first point to make in relation to the proprietary estoppel argument is that these proceedings are not concerned with who might benefit from the Commodore’s pension rights. They are concerned with benefits granted by the 2011 Order to a surviving adult dependant. But, in any event, the Commodore was not in a position to make any representation that the Secretary of State would depart from the terms of the 2011 Order for Mrs Langford’s benefit. This must have been obvious to Mrs Langford. The Secretary of State did not make any representation that is capable of founding a proprietary estoppel. I reject this ground. I do not need to decide whether, in principle, a proprietary estoppel could operate in the way contended for by Mrs Langford – so as effectively to modify legislative provisions setting out how state benefits are distributed – but I think it is doubtful. 44. Mrs Langford also argues she can rely on an estoppel by convention. Such as estoppel is made out because: she and the Commodore operated under the assumption that she would be entitled to R.A.F. benefits if he died in service; the assumption that she was an officer’s wife “arose under a convention which pervades society within the R.A.F; she relied on the assumption; it was unconscionable for the Secretary of State to deny her claim given the way in which the R.A.F. benefitted from her support of the Commodore in his work. 45. Without in any way wishing to diminish the importance of the support provided by Mrs Langford to the Commodore during his lifetime, I must reject the estoppel by convention argument. There was no shared assumption between the Secretary of State for Defence, or anyone authorised by him to make service benefit or compensation decisions, and Mrs Langford that she would be granted benefits outside the terms of the 2011 Order. JL v Secretary of State for Defence [2016] UKUT 0482 (AAC) CAF/2565/2015 9 46. Mrs Langford puts forward further grounds under the heading “The Exigencies of the Service and Circumstances of Chris’ Death”. Had the Commodore lived, they would have been married. Their plans to marry (and for her to obtain the divorce to which her husband would have consented) were de-railed by the demands of the Commodore’s military service. I do not doubt any of that but they provide no basis for departing from the terms of the 2011 Order. The same applies to Mrs Langford’s argument that the Secretary of State’s denial of benefits is morally unacceptable and against the public interest. These are not matters which the 2011 Order permits to be taken into account in deciding whether a person is entitled to benefits under the Order. 47. This decision has taken longer to complete than I anticipated, and indicated to the parties, at the hearing. I apologise for any frustration caused. (Signed on the Original) E Mitchell Judge of the Upper Tribunal 26 October 2016

RS v SoS for Defence [2016] UKUT 0474 (AAC) CAF/3235/2015 1 IN THE UPPER TRIBUNAL Upper Tribunal case No. CAF/3235/2015 ADMINISTRATIVE APPEALS CHAMBER Before: Mr. E Mitchell, Judge of the Upper Tribunal Decision: The appeal is allowed. The decision of the First-tier Tribunal (20th August 2014, First-tier file reference AFCS/00321/2014) involved the making of an error on a point of law. It is SET ASIDE under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007 and the case is REMITTED to the First-tier Tribunal for hearing. Directions for the rehearing are at the end of this decision. Mr Glyn Tucker, of the Royal British Legion, represented the Appellant Mr S. Ms Galina Ward, of counsel, represented the Respondent Secretary of State. REASONS FOR DECISION Introduction 1. In this case, the Upper Tribunal is asked to give guidance to the First-tier Tribunal as to the exercise of any power it may have in relation to the making of interim awards under the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011 (“the Order”). I am not comfortable about using this case to give such guidance since the Appellant does not, and never has, sought an interim award. I am asked to assume that the decision of a Tribunal of Northern Ireland Pensions Appeal Commissioners about a tribunal’s powers in relation to temporary awards can be read across to interim awards. However, the 2011 Order confers a duty on the Secretary of State to make temporary awards, if specified conditions are met, but only a power to make interim awards. In the light of that difference, which was not explored in the submissions on this appeal, I do not think this is the right case to use to give general guidance about a tribunal’s powers in relation to interim awards. Background 2. Mr S made a claim under the Order on 7th February 2012. On 9th August 2013, the Secretary of State decided that his injury caused by service satisfied the descriptor at item 5 in Table 4 in Schedule 3 to the Order: “Physical disorder causing permanent moderate functional limitation or restriction”. That is a tariff level 11 descriptor. 3. The Secretary of State’s decision entitled Mr S to a lump sum payment of £15,500 and a Guaranteed Income Payment (GIP). 4. On 30th September 2013, Mr S appealed to the First-tier Tribunal on the following grounds: RS v SoS for Defence [2016] UKUT 0474 (AAC) CAF/3235/2015 2 (a) the wrong descriptor was applied because his disability was severe, not moderate; (b) his award should have been backdated to the date of the injury; (c) he should have qualified for a supplementary payment for incontinence; (d) it was unfair that his GIP was abated against his retirement pension. 5. In response to Mr S’s appeal, on 6th June 2014 the Secretary of State reconsidered but did not change his decision. 6. Subsequently, by letter dated 25th July 2014, Mr S argued he had suffered two separate injuries, an anal fissure and faecal incontinence (caused by consuming dehydrated Army rations). He argued the former satisfied Table 2, item 19 (“injury to abdomen, including pelvis or perineum, or both, causing permanent significant functional limitation or restriction”) and the latter either Table 2, item 16 (“injury to abdomen, including pelvis or perineum, or both, with complications, causing permanent significant functional limitation or restriction”) or Table 2, item 17 (complex injury to abdomen, including pelvis or perineum, or both, causing permanent significant functional limitation or restriction”). In that letter, Mr S also argued that, if in fact there was a single injury, it satisfied Table 2, item 10 (“complex injury to abdomen, including pelvis or perineum, or both, with complications, causing permanent significant functional limitation or restriction”). 7. On 28th August 2014, the First-tier Tribunal gave a decision which it described as follows: “The unanimous decision of the Tribunal is to adjourn the appeal against the decision to place the appellant’s invaliding conditions on the following descriptor: faecal incontinence and anal fissure at Table 4, Item 5, Tariff Level 11.” 8. The Tribunal’s decision notice added: “The Tribunal considers that the award should be on the same tariff but made interim for a period of 2 years from today’s date”. 9. The Tribunal’s administration then supplied Mr S with standard information about how to appeal against the Tribunal’s decision. 10. Even though the Tribunal said it was adjourning the appeal, its statement of reasons made a finding of fact, namely that Mr S suffered a single injury of an anal fissure. It also stated it was too early to decide whether Mr S had a permanent functional limitation or restriction and whether it was moderate or severe (it may have meant moderate, significant or severe). 11. The Tribunal’s statement of reasons added: RS v SoS for Defence [2016] UKUT 0474 (AAC) CAF/3235/2015 3 “For these reasons, we consider that there should be an interim award for 2 years in order to establish the position at which it can more confidently be said that Mr S met the definitions…. The Secretary of State has exhausted his powers of review and is therefore unable, without the Tribunal’s direction, to make this award”. [I think the Tribunal must have meant to refer to powers of reconsideration since the powers of review were not exhausted: see below]. 12. Mr S applied to the First-tier Tribunal for permission to appeal to the Upper Tribunal against the Tribunal’s ‘decision’. In response, on 25th October 2014 a Tribunal official informed him that he had mistakenly been sent information about how to appeal. He was informed the tribunal adjourned in order for Veterans UK to consider making an interim award and he could appeal against such award once final but “there is no right of appeal against an interim award”. 13. In the meantime, on 9th October 2014 Veterans UK informed Mr S they had accepted the Tribunal’s recommendation and “his award had been made an interim award for review in two years” and he would have the right to appeal against the final award decision once made. 14. On 9th December 2014, the Chamber President invited the parties to agree to a consent order to give effect to the adjournment decision which would “keep you on the existing tariff but convert your final award to an interim award for 2 years”. If not, the adjourned hearing would have to be re-convened. 15. Mr S did not agree. He disputed the Tribunal’s apparent finding that he suffered a single injury and made further arguments about the substantive merits of his case. 16. On 30th December 2014, the Veterans Agency wrote to the Chamber President explaining they had misconstrued the Tribunal’s decision. They thought they had been directed, rather than merely recommended, to make an interim award. On the assumption that a direction was made, the Veterans Agency thought the appeal was closed because they did not accept the Tribunal could make an interim award of its own volition. The Agency went on to say they should have applied to the Tribunal for a consent order before making an interim award, which they then proceeded to do. If Mr S did not agree, “the appeal should be relisted and heard in full”. 17. Mr S did not agree and arrangements were made for a further hearing. Before that could be held, however, the acting Chamber President granted Mr S permission to appeal to the Upper Tribunal. The President observed Mr S was entitled to appeal against an adjournment decision and noted that the Tribunal had decided to make an interim award. The President referred to RS v SoS for Defence [2016] UKUT 0474 (AAC) CAF/3235/2015 4 the Veterans Agency’s view that the Tribunal had no power to make an interim award and that it would be useful to have the Upper Tribunal’s guidance on that point. Legislative framework 18. Article 52(1) of the Order empowers the Secretary of State to make an interim award where he is satisfied that a person is entitled to injury benefit but the prognosis is uncertain and it is not possible to determine the applicable descriptor. On making an interim award, the Secretary of State must select the descriptor that appears most appropriate “at the date of the decision” (article 52(2)). 19. On making an interim award the Secretary of State must specify the period for which it is to have effect but this “is to be a maximum of two years starting from the date the award was first made” (article 52(4)). Where the specified period is less than 2 years, the Secretary of State “may extend and further extend the award but, subject to paragraph (6), a final award must be made within the period of 2 years starting with the date on which an interim award was first made”. 20. Where the prognosis remains uncertain at the end of any initial two year period and the Secretary of State considers further extension “just and equitable”, an interim award may be extended and further extended for a period not exceeding 2 years. However, a final award must be made “within the period of 4 years starting with the date on which an interim award was first made” (article 52(6)). 21. Article 53(1) requires the Secretary of State to reconsider an original decision “if an application for a reconsideration, made in accordance with paragraph (4), is given or sent to the Service Personnel and Veterans Agency”. Article 53(4) includes the requirement that “an application for a reconsideration must be made within the period of 1 year starting with the date on which notice of the original decision is given or sent to the claimant”. 22. On reconsideration, the Secretary of State may revise the original decision so as to make an interim award (see article 53(7)). Where he does so, the claimant may again apply for reconsideration when that award is made final (article 53(8)). 23. In this case, the Secretary of State purported to make an interim award (on 9th October 2014) more than one year after notification of the original decision and without any application for reconsideration having been made. 24. Article 53(5) also requires the Secretary of State to reconsider an original decision where an appeal has been made. He did so in this case (on 6th June 2014). 25. Article 54(1) provides that a final decision awarding benefit may not be reviewed other than in accordance with articles 56 to 59. A decision becomes final where there has been no RS v SoS for Defence [2016] UKUT 0474 (AAC) CAF/3235/2015 5 application for reconsideration under article 53 or the time for applying for reconsideration has expired (article 54(4)). 26. Article 56, headed “Review – exceptional circumstances within 10 years”, requires the Secretary of State, on application, to review an injury benefit decision. On a review, the Secretary of State may revise a decision but only if: “within the period of 10 years, starting with the date of the injury benefit decision, the injury in respect of which the decision relates has (a) become worse or caused a further injury to develop; (b) the worsening or the development is unexpected and exceptional; and (c) the injury, or the injury and the further injury together is described by (i) a descriptor at a tariff level which is higher than that already awarded for the injury; or (ii) an additional descriptor for the injury or further injury” (article 56(3)). 27. On a review, the Secretary of State may revise the original decision 28. Article 57, headed “Review – final”, requires the Secretary of State in certain circumstances to review an injury benefit decision made “10 or more years” before an application for review. The conditions for revising under article 57 include that it would be “manifestly unjust” to maintain the effect of the original decision. 29. Article 58 permits the Secretary of State to review an award in response to an award of damages made to a claimant. Article 59 permits the Secretary of State to review a decision at any time if satisfied “the decision was given in ignorance of, or was based on, a mistake as to a material fact or of a mistake as to the law”. 30. Under section 5A of the Pensions Appeal Tribunals Act 1943, there is a right of appeal to the First-tier Tribunal against a specified decision of the Secretary of State. When the Secretary of State notifies a claimant of a specified decision, he must set out the ground on which it is made. The appeal lies “on the issue whether the decision was rightly made on that ground”. The original decision in this case was an appealable specified decision. The specified decisions include a decision which “determines whether a benefit is payable”. 31. However, a decision to make an interim award is not a specified decision. Regulation 3(2) of the Pensions Appeal Tribunals Act 1943 (Armed Forces and Reserve Forces Compensation Scheme) (Rights of Appeal) Regulations 2011 (S.I. 2011/1240) provides “the following decisions are not specified decisions, that is a decision which…(a) makes or arises from the making of an interim award under article 52(1) of the 2011 Order”. RS v SoS for Defence [2016] UKUT 0474 (AAC) CAF/3235/2015 6 32. Under section 5B of the 1943 Act, the tribunal “shall not take into account any circumstances not obtaining at the time when the decision appealed against was made”. Section 5B also provides the tribunal “need not consider any issue that is not raised by the appellant or the Minister in relation to the appeal”. Proceedings before the Upper Tribunal 33. In case management directions on this appeal, I made the following observations: “The First-tier Tribunal said it was adjourning Mr S’s appeal. If it did in fact adjourn, it cannot have decided Mr S’s appeal. I find it difficult to see how the Tribunal’s decision can properly be described as a decision to make an interim award. If it was making a decision on the appeal, it would not have adjourned. If the Tribunal did not itself purport to make an interim award, I find it difficult to see how the Upper Tribunal can properly give guidance on the Firsttier Tribunal’s powers, if any, to make interim awards. I am struggling to see on what basis the Veterans Agency made an interim award following the Tribunal’s adjournment. Mr S was too late to apply for reconsideration and the Secretary of State had already reconsidered in response to Mr S’s appeal… My initial impression is that the Tribunal probably adjourned in the hope that the Secretary of State would make an interim award in the same terms as the existing award (although the reference in the statement of reasons to a direction muddies the waters)… If the Secretary of State could not have validly reconsidered the original decision so as to make an interim award, it seems to me that Mr S’s appeal to the First-tier Tribunal remains live. It may be simplest to resolve this appeal by allowing it on the basis that the Tribunal decided to adjourn on a flawed understanding of the law. The matter would then go back to the First-tier Tribunal for it to complete the proceedings on Mr S’s appeal. In those circumstances, I do not see how the Tribunal would be bound by the apparent finding of fact in the present Tribunal’s statement of reasons.” 34. The Secretary of State’s response was drafted by Ms G Ward of counsel. The response: (a) relied on the decision of a Tribunal of Northern Ireland Pension Appeal Commissioners in Secretary of State for Defence v FA (AF) [2016] AACR [2015] NICom 17 to argue that a decision to make an interim award is not appealable and a tribunal on appeal has no power to make an interim award. FA concerned temporary awards but the Secretary of State submitted that the interim award provisions were in material respects identical. In FA the Commissioners decided a decision not to make a temporary award was a specified decision, that is a “decision which determines whether a benefit is payable”; (b) relied on FA to argue that a decision not to make an interim award is appealable in the same way as a decision not to make a temporary award. On such an appeal, the task for the RS v SoS for Defence [2016] UKUT 0474 (AAC) CAF/3235/2015 7 tribunal is to decide whether the conditions precedent in article 52(1) are made out (prognosis uncertain and not possible to determine the appropriate descriptor). If so, the tribunal should remit the matter to the Secretary of State to decide whether to make an interim award. That reflects the guidance given by the Commissioners in FA; (c) where, as in this case, the tribunal simply adjourns, the Secretary of State’s power to make an interim award does not arise but if “the appeal is allowed and remitted that has the effect that the original decision has to be remade by the Secretary of State, so that difficulty is avoided”; (d) it would be “extremely helpful” to have the Upper Tribunal’s guidance on how the Firsttier Tribunal should proceed where it considers an interim award might be appropriate. 35. The response also informed the Upper Tribunal that the Secretary of State supported the appeal. The First-tier Tribunal’s approach was flawed because it misunderstood the law, took a course that was not suggested by either party and on which neither were given the opportunity to comment and failed to determine the key issue on the appeal (the degree of Mr S’s functional limitation). The Secretary of State also submitted that any tribunal to which the appeal might be remitted would not be bound by the First-tier Tribunal’s findings of fact. 36. In reply, Mr S’s representative, Mr Tucker, pointed out that “[Mr S] does not seek and has never sought an interim award and has no direct interest in the request for guidance on the jurisdictional issue”. However, Mr Tucker did address the point. While he did not take issue with most of the Secretary of State’s response, he disputed the implication that the Secretary of State, in response to a tribunal remitting a case for him to consider an interim award, had a free hand to decide whether or not to make an interim award. He relied on the Upper Tribunal’s recent analysis of FA, in JB v Secretary of State for Defence (AFCS) [2016] UKUT 0248 (AAC) (in which Mr Tucker and Ms Ward both appeared). In JB, Upper Tribunal Judge Rowland said: “It is worth emphasising, however, that the changes to the appropriate tribunal’s powers in relation to temporary awards that have resulted from the 2011 Regulations as construed by the Northern Ireland Commissioners, require it to take a rigorous approach to an appeal against a refusal to make such an award. No longer is an appropriate tribunal confined to making a mere recommendation that can properly be rejected by the Secretary of State. Instead, if satisfied that all of the conditions for making a temporary award are satisfied, it must make findings to that effect that are presumably binding on the Secretary of State and may well, unless he appeals, have the effect of imposing on him a public law duty, enforceable through judicial review proceedings in the courts, to make a temporary award.” RS v SoS for Defence [2016] UKUT 0474 (AAC) CAF/3235/2015 8 Discussion 37. I am not comfortable about using this appeal as a vehicle to give guidance to the First-tier Tribunal about its powers in relation to interim awards. As Mr S’s representative says, he has never sought an interim award. And the specified ground against which the appeal lay in this case made no mention of interim awards (although I accept the tribunal has discretion under section 5B of the 1943 Act to consider issues not raised by the parties). 38. I do, however, accept the Secretary of State’s argument that the course taken by the present First-tier Tribunal – to give a recommendation to make an interim award – was flawed. That left the Secretary of State’s original decision in place. In the circumstances, the outcome sought could only have been achieved by the Secretary of State exercising his powers of reconsideration in article 53 (there being no suggestion that any of the powers of review might be available). However, the Secretary of State had already carried out the reconsideration required in response to Mr S’s appeal. In those circumstances, it seems to me that the Secretary of State could not have carried out an article 53 reconsideration. He would only have had that power if an application for reconsideration had been made within one year of notification of the original decision. There was no application at all in this case (Mr S’s submission on this appeal makes that very clear), let alone one made within one year of the original decision. 39. Like temporary awards, decisions to make interim awards are not specified decisions against which the 2011 Regulations confer a right of appeal. However, I do not agree with the Secretary of State that the interim award and temporary award provisions are materially identical. The Secretary is under a duty to make a temporary award if specified conditions are met. Article 26(2) of the Order provides “the Secretary of State is to make a temporary award in respect of that person relating to the level of the tariff which the Secretary of State considers appropriate for that injury”. By contrast article 52(1) confers power to make an interim award if specified conditions are met (“an interim award may be made”). The relevance, if any, of this difference was not explored in the submissions made on this appeal. 40. I accept that FA indicates, as does the plain wording of the 2011 Regulations, that there is no right of appeal against the making of an interim award. I am not certain whether FA also suggests that a tribunal has power to consider an appeal against a refusal to make a discretionary interim award. I am not, I am afraid, going to address that point on an appeal brought by an Appellant who has never sought an interim award and where I do not have the benefit of argument on the point. Conclusion 41. Mr S’s appeal is allowed. The First-tier Tribunal’s decision to adjourn was based on a flawed understanding of the law. It thought this would allow the Secretary of State to exercise RS v SoS for Defence [2016] UKUT 0474 (AAC) CAF/3235/2015 9 his reconsideration powers so as to make an interim award but, in the absence of a duly made application for reconsideration, those powers did not arise. 42. The First-tier Tribunal’s decision is set aside and Mr S’s appeal remitted to the First-tier Tribunal. The Tribunal is not bound by the previous Tribunal’s findings. In fact, the next Tribunal must carry out an entirely fresh consideration of the issues arising on this appeal. Directions Subject to any further direction by a judge of the First-tier Tribunal, I remit this appeal to the First-tier Tribunal and direct as follows: (1) A hearing of Mr S’s appeal must be held by the First-tier Tribunal. The Tribunal must not, in its reasoning, take into account the reasons or findings of the Tribunal whose decision I have set aside. (2) The Tribunal’s membership must not include any of the members of the Tribunal whose decision I have set aside. (3) If either party wishes to rely on further written evidence or arguments, these must be received by First-tier Tribunal within one month of the date this Decision is issued. (4) The Secretary of State must consider whether to send a representative to the rehearing. I strongly suggest he does send a representative. (Signed on the Original) E Mitchell Judge of the Upper Tribunal 19th October 2016

GT v Secretary of State for Defence (WP) [2016] UKUT 0309 (AAC) CAF/2582/2015 1 IN THE UPPER TRIBUNAL Upper Tribunal case No. CAF/2582/2015 ADMINISTRATIVE APPEALS CHAMBER Before: E Mitchell, Judge of the Upper Tribunal Decision: The appeal is allowed. The decision of the First-tier Tribunal (9 th April 2015, Firsttier file reference SD/00032/2015) involved the making of an error on a point of law. It is SET ASIDE under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007 and the case is REMITTED to the First-tier Tribunal for rehearing. Directions for the rehearing are at the end of this decision. Ms Galina Ward, of counsel, represented the Secretary of State. Mr T was unrepresented. REASONS FOR DECISION Introduction 1. This appeals concerns unemployability allowance (UA). In the Upper Tribunal, at any rate, this is a rarely encountered part of the Naval, Military and Air Forces etc (Disablement and Death) Service Pensions Order 2006 (S.I. 2006/606) (“the 2006 Order”). 2. The 2006 Order provides for a person to be treated as unemployable despite being “in receipt” of therapeutic earnings. This appeal raises the issue whether this type of work is to be disregarded in determining unemployability even if a person is not in receipt of therapeutic earnings. I decide that it is not. 3. The appeal also raises the question whether “unemployable” means permanently unemployable. I decide it does not. The 2006 Order is simply concerned with whether a person may fairly be considered unemployable at the date on which a claim for UA is determined. Factual background 4. Mr T was medically discharged from the Army on 4th November 2013. He was awarded a War Disablement Pension. For that purpose, the Secretary of State assessed Mr T as 60% disabled from osteoarthritis of the knees. Mr T’s knee condition was considered to be linked to high-impact stresses to his knees over a number of years as part of his Army service. 5. In assessing Mr T as 60% disabled the Secretary of State relied on a report of an examination carried out by a registered medical practitioner on 26th January 2014. The report: GT v Secretary of State for Defence (WP) [2016] UKUT 0309 (AAC) CAF/2582/2015 2 (a) states that Mr T had had three arthroscopies on his right knee and two on the left, as well as tibial osteotomies performed on both knees; (b) states that Mr T had had two courses of cortisone injections to his knees; (c) records Mr T’s opinion that none of these medical procedures had helped him; (d) records that Mr T had recently been discharged from hospital, on 22nd January 2014, having had surgery on 20th January 2014 to graft bone on the left knee and remove a metal plate from the right knee; (e) records Mr T’s statements that he had not driven for two years due to his knee problems and, after walking 15-20 metres, would need to stop due to pain; (f) records Mr T’s statement that, since he left the Army on 4th November 2013, he had not worked due to his knee problems; (g) expresses the opinion, in the light of the examination, that there were abnormalities in Mr T’s hip, knee and ankle joints and records reduced range of movement in those joints. The report also found significant reduction of muscle mass in the left quadriceps muscles and moderate reduction in the right; (h) expresses the opinion that Mr T “cannot walk more than a few steps without stopping or severe discomfort”; (i) ends with the following summary: “Severe disability noted due to both knees problem. He recently had operations on both knees. He uses crutches all the time. Severe disability likely with walking / standing / using stairs / squatting. His symptoms will improve with time in 12 months as currently he is recovering from surgery”. 6. The medical evidence also lists the pain relieving medication taken by Mr T, including Tramadol, Paracetomol, Ibuprofen, Codeine and Amityrptyline. 7. A report from Mr T’s consultant dated 24th January 2014 states that, when Mr T is old enough, he will need full replacements of both knees. The consultant’s report also states Mr T has “mood swings and bouts of depression”. 8. On 19th November 2014, a registered medical practitioner advised the Secretary of State that “although [Mr T] has restricted mobility and agility I feel that he would be able to manage sedentary, administrative type work”. The doctor also noted that Mr T had worked as an Army GT v Secretary of State for Defence (WP) [2016] UKUT 0309 (AAC) CAF/2582/2015 3 Career Adviser until the point at which he was medically discharged. The Secretary of State relied on this advice in rejecting Mr T’s claim for UA. 9. On his appeal to the First-tier Tribunal, Mr T argued: (a) the Secretary of State’s decision was unfair because he had been told he would be medically examined for the purposes of his UA claim but the examination had not materialised; (b) he wanted to work but was in too much pain to do so; (c) he had not been working as an Army Careers Adviser until the point at which he was medically discharge from the Army. He had been “off sick”; (d) the Secretary of State did not take into account his post-discharge surgical procedures. Moreover, those procedures had not been successful. 10. Following a hearing at which Mr T gave oral evidence, but was unrepresented, the Firsttier Tribunal dismissed his appeal. The Tribunal’s findings of fact included: (a) Mr T’s surgery “has not proved productive”; (b) Mr T’s painkillers take the edge off his pain but they make him feel “drowsy with a fuzzy head” and “unable to make snap decisions”. His medication regime had been unchanged for 2 to 3 years but the side effects “would not be a permanent effect and [Mr T] would gradually be able to get used to the side effects of the medication” (even though Mr T had had the same medication regime for two to three years); (c) Mr T’s “knee” is frequently locked for 30 seconds at a time; (d) Mr T mobilises using two crutches although “his mobility was reasonable on the basis that he managed to mobilise from New Street Station to the hearing today, admittedly slowly on crutches and with the help of his wife”; (e) Mr T was “off sick” for the last 18 months of his Army service; (f) Mr T was “IT literate and has man management organisational and training skills from his time in the Army”. 11. The Tribunal’s reasons for concluding that Mr T did not meet the criteria for UA were: “the Tribunal could not accept that Mr [T] was so disabled as to make him unemployable. Particularly we find that he could undertake works similar to what he GT v Secretary of State for Defence (WP) [2016] UKUT 0309 (AAC) CAF/2582/2015 4 had done before but specifically he could undertake training or lecturing type work, or work where he would be able to alternate between standing and sitting, such as possibly stores based work or packing or light assembly work which would allow him to alternate between standing and sitting. Although he has elected not to drive, the Tribunal consider that he could certainly drive short distances when he has taken his medication and again it was the evidence of the Medical Member that the taking of Tramadol would not result in advice being given to a patient not to drive”. 12. I granted Mr T permission to appeal to the Upper Tribunal on the grounds that arguably the First-tier Tribunal erred in law by: (a) making an irrational finding that Mr T’s mobility was “reasonable” since it appeared also to accept the finding in the 26th January 2014 medical report that Mr T was severely disabled by his knee condition; (b) failing to consider the therapeutic earnings rules for UA; (c) failing to consider whether to make a provisional award in the light of Mr T’s uncertain prognosis. Legal Framework Unemployability allowances (UA) 13. Part II of the 2006 Order provides for various awards in respect of disablement including, in Article 12, UA. 14. The principal entitlement condition for UA is found in article 12(1): “where a member of the armed forces is in receipt of retired pay or a pension in respect of disablement so serious as to make him unemployable, he shall be awarded unemployability allowances”. 15. Article 12(1) is subject to 12(2)(b), which disapplies article 12(1) where “where the degree of disablement is assessed at less than 60 per cent” (to recap, Mr T’s disablement had been assessed at 60%). There will be an existing disablement assessment given article 12(1)’s requirement for a member to be in receipt of retired pay or a pension. 16. Article 12(4) provides for a statutory fiction in that it permits a person, in certain cases, to be treated as unemployable even though the person is employed: “For the purposes of this article…a member may be treated as unemployable although in receipt of therapeutic earnings which are, in the opinion of the Secretary of State, unlikely to exceed per year the figure specified in paragraph 5(c) of Part IV of Schedule 1 [currently £5,590]”. GT v Secretary of State for Defence (WP) [2016] UKUT 0309 (AAC) CAF/2582/2015 5 17. The definition of “therapeutic earnings” can easily be overlooked because it is contained in item 60 of Part II of Schedule 6 to the Order. The definition is: “earnings from work for no more than 16 hours per week and which in the Secretary of State's view is not detrimental to the health of the member”. 18. Article 12(6) provides for additional allowances in respect of certain of a member’s dependants. That is not directly relevant in Mr T’s case but I note that article 12(9) makes the award of an additional allowance for a child living apart from the claimant entirely within the discretion of the Secretary of State: “For the purposes of paragraph (6)(b) and (c), an award, continuance and amount of an additional allowance under that paragraph in respect of a child who is living apart from the member shall be at the discretion of the Secretary of State”. 19. Mr T’s assessed disability of 60% is not in issue in these proceedings but I should mention the assessment rules. They show an assessment does not involve an assessment of the limitations likely to be faced by the disabled member in the workplace. Article 42(2)(a) enacts the general rule that “the degree of the disablement due to service of a member of the armed forces shall be assessed by making a comparison between the condition of the member as so disabled and the condition of a normal healthy person of the same age and sex, without taking into account the earning capacity of the member in his disabled condition in his own or any other specific trade or occupation, and without taking into account the effect of any individual factors or extraneous circumstances”. 20. Of itself, therefore, an assessment of disability says nothing about the disabled member’s earning capacity (which must be linked to employability). Altering awards 21. Article 2(5) of the Order contains the general rule that, where the conditions for an award cease to be fulfilled, the award itself ceases to have effect. It is in these terms: “Subject to article 44(7), any condition or requirement laid down in this Order for an award, or the continuance of an award…shall, except where the context otherwise requires, be construed as a continuing condition or requirement, and accordingly the award…shall cease to have effect if and when the condition or requirement ceases to be fulfilled”. 22. Article 44(7) is not relevant in this case. It permits the Secretary of State to continue an award even if he has revised it under the other provisions of article 44. 23. Article 5(1) provides that an award “may be made provisionally or on any other basis”. As Ms Ward for the Secretary of State points out, the 2006 Order says nothing further of relevance about provisional awards. GT v Secretary of State for Defence (WP) [2016] UKUT 0309 (AAC) CAF/2582/2015 6 24. Article 44 contains a framework for reviewing various decisions under the Order. Article 44(2) confers power on the Secretary of State to review an award made under the Order. The grounds on which the review power may be exercised include that “there has been any relevant change of circumstances since the award was made”. 25. Article 44 draws a distinction between reviewing and revising. Reviewing is used in the sense of looking again at an award. The distinction is seen most clearly in article 44(4): “…following a review under paragraph (1) of any decision accepting a claim for pension or any assessment of the degree of disablement of a member of the armed forces, that decision or assessment may be revised by the Secretary of State to the detriment of a member of the armed forces only where the Secretary of State is satisfied that— (a) the decision or assessment was given or made in consequence of ignorance of, or a mistake as to, a material fact, or of a mistake as to the law…” 26. Revision involves altering an award. Article 44(5) provides: “An award under this Order may be revised by the Secretary of State to the detriment of a member of the armed forces only where the Secretary of State is satisfied that— (a) the award was made in consequence of ignorance of, or a mistake as to, a material fact, or of a mistake as to the law; or (b) there has been any relevant change of circumstances since the award was made…”. 27. The output of revision is governed by article 44(6): “…any revised decision, assessment or award shall be such as may be appropriate having regard to the provisions of this Order”. 28. If the Secretary of State thinks a decision on an award “should be reviewed”, article 65(1) gives him power to require the pensioner to supply information or evidence which is reasonably required to determine whether the award should be revised, or to attend a medical examination. In default, the Secretary of State has power to suspend payment of the award. Continued default may result in cancellation of the award under article 66. Jurisdiction of the First-tier Tribunal 29. Section 5A of the Pensions Appeal Tribunal Act 1943 (as amended) applies to “any such claim as is referred to in section 1…of this Act” (war pension claims). This includes a claim under the 2006 Order. 30. By section 5A(1), where the Secretary of State makes a “specified decision” on a claim he is required to specify the ground on which it is made and “thereupon an appeal against the GT v Secretary of State for Defence (WP) [2016] UKUT 0309 (AAC) CAF/2582/2015 7 decision shall lie to the appropriate tribunal on the issue whether the decision was rightly made on that ground”. 31. Section 5B provides: “In deciding any appeal under any provision of this Act, the appropriate tribunal— (a) need not consider any issue that is not raised by the appellant or the Minister in relation to the appeal; and (b) shall not take into account any circumstances not obtaining at the time when the decision appealed against was made.” 32. “Specified decisions” are set out in regulations. For present purposes, these are the Pensions Appeal Tribunals (Additional Rights of Appeal) Regulations 2001. Regulation 3A(1) specifies a decision: “(a) which is made in exercise of any provision of the 2006 Service Pensions Order listed in Schedule 1A; and (b) which— (i) refuses or discontinues an award; (ii) establishes or varies the amount of an award; or (iii) establishes or varies the date from which an award has effect”. 33. Within Schedule 1A we find an entry for “Article 12 – unemployability allowance”. The arguments and my conclusions Ground 1 34. For the Secretary of State, Ms Ward’s argues the Tribunal’s finding that Mr T’s mobility was “reasonable” at the date of the First-tier Tribunal’s decision could not be considered irrational. This was because the Tribunal accepted the contents of the January 2014 medical report which included the opinion that Mr T would improve over the following twelve months. 35. The first point to make is that section 5B of the 1943 Act prevented the Tribunal from taking into account circumstances not obtaining when the decision under appeal was taken. The decision was taken on 27th November 2014 and the Tribunal decided the appeal in April 2015 although, of itself, that may not be significant given Mr T’s evidence that he did not improve. 36. The second point is that the Tribunal did not, in its statement of reasons, adopt all the findings of the January 2014 report. It said it accepted “that notice of disability” contained in the January 2014 report which it found to be consistent with Mr T’s oral evidence. The Tribunal also accepted Mr T’s evidence that he had not improved, in particular that his most GT v Secretary of State for Defence (WP) [2016] UKUT 0309 (AAC) CAF/2582/2015 8 recent surgery had not “proved productive”. So far as improvement was concerned, on the Tribunal’s findings that was still to come and not as a result of a lessening of his knee symptoms but solely from him becoming accustomed to his pain relief: “his pain is to some extent controlled by medication and the effects of drowsiness can be expected to improve”. At no point do the Tribunal’s reasons show that his case was approached on the footing that, judging matters as they stood at the date of the Secretary of State’s decision, Mr T would improve as a result of his January 2014 surgery. 36. For the above reasons, I do not accept that the apparent inconsistency in the Tribunal’s reasons is explained by the Tribunal having adopted the view that Mr T was likely to improve over the twelve months to January 2015. The Tribunal’s inconsistent findings amount to an error on a point of law because they mean inadequate reasons were given for its decision. 37. This cannot be considered an immaterial error and so I must set aside the Tribunal’s decision. The types of employment proposed for Mr T, such as packing and light assembly, would be likely involve him trying to perform anatomical operations that, on the 2014 report’s findings, would either be very difficult or impossible. Ground 2 38. I accept Ms Ward’s argument that the interpretation of “unemployable” is not influenced by the role played by therapeutic earnings in Article 12. In particular, I do not think the view on which I invited submissions – whether capacity to do work of a type envisaged by the therapeutic earnings provisions is always to be ignored – stands up to analysis. 39. The therapeutic earnings provisions do not include a typical deeming provision in that they are not declaratory. They confer a power to deem. Specifically, they confer a power to treat as unemployable a person who is in receipt of therapeutic earnings. Furthermore, the definition of “therapeutic earnings” is itself a moving target since it is dependent on the exercise of another power (an exercise of judgement). The decision maker must take the view that the work in question is not detrimental to the health of the member. All of this means the likely application of the therapeutic earnings exception is uncertain and may well vary from case to case. As a result, the legislative scheme cannot accommodate any assumption that certain types of work will always be disregarded. 40. To conclude, the therapeutic earnings provisions have no wider effect than that suggested by their literal meaning. They can only assist a person (a) who is “in receipt” of earnings within the specified limit; (b) whose work is considered by the decision maker not to be detrimental to their health; and (c) whom the decision maker decides to treat as unemployable. Ground 3 41. I think the question whether the Tribunal should have considered making a provisional award is in fact a red herring. Since I have decided to set aside the Tribunal’s decision on ground 1, I shall give only brief reasons why. GT v Secretary of State for Defence (WP) [2016] UKUT 0309 (AAC) CAF/2582/2015 9 42. The 2006 Order contains a mechanism for altering awards. These are the review and revision provisions. Whether they could adequately have catered for the uncertainty over Mr T’s prognosis depends on what “unemployable” means. 43. Ms Ward argues that, in Article 12 of the Order, unemployable means permanently unemployable simply because the Secretary of State has always interpreted the term in accordance with Schedule 7(2) to the Social Security Contributions and Benefits Act 1992. Schedule 7(2) provided for an “unemployability supplement” to industrial injury disablement pensions where a person was “incapable of work and likely to remain so permanently”. However, Article 12 does not refer to a person being permanently unemployable and I do not consider such a qualification must necessarily be implied. My attention has not been drawn to any provision which requires Article 12 to be interpreted in accordance with Schedule 7 to the 1992 Act. 44. Even if a disabled person’s health condition is not likely to change, the way in which different people adjust to their disabilities can be difficult to predict. And new assistive technologies continue to be developed. To require a person to be permanently unemployable asks the decision maker to make predictions about matters which are often inherently uncertain and is unlikely to have been intended by the legislator. 45. Further support for this view is found in the conditions for invalidity allowance under Article 13 of the 2006 Order. That allowance may only be paid to a person awarded UA under Article 12(1)(a). Article 13(4) of the invalidity allowance conditions assumes UA may be awarded during an interruption in employment: “If the unemployability in respect of which the allowance is awarded forms part of a period of interruption of employment for [specified statutory purposes] which has continued without a break from a date earlier than the date fixed under paragraphs (2) and (3), the relevant date shall be the first day of incapacity for work for those purposes in that period.” 46. UA takes the form of a weekly allowance, rather than a gratuity. And so the imperative to protect public funds is not undermined by construing Article 12 so that a person is unemployable if, at the decision date, the person can fairly be considered unemployable even if, at some point in the future, the person might not be. 47. For the above reasons, there was no need for the Tribunal to consider making a provisional award in order to cater for the possibility that Mr T’s circumstances might change. 48. I observe that if the circumstances of a person do change so that the person may no longer be unemployable, Article 44 of the Order permits the Secretary of State to look again at (review) the award and, if he thinks appropriate, exercise his power of revision so as to discontinue it. I do not however discount the possibility that the power to make a provisional award might be exercised in response to an uncertain prognosis. For example, it might be legitimate to make an award provisional on the disabled person submitting to a medical examination by some specified date. GT v Secretary of State for Defence (WP) [2016] UKUT 0309 (AAC) CAF/2582/2015 10 Disposal 49. I allow this appeal and remit the matter to the First-tier Tribunal for re-hearing in accordance with the following directions. Directions Subject to any later Directions by a Judge of the First-tier Tribunal, I remit this appeal to the First-tier Tribunal and direct as follows: (1) A rehearing of Mr T’s appeal must be held by the First-tier Tribunal. The Tribunal must not, in its reasoning, take into account the decision or findings of the Tribunal whose decision I have set aside. (2) The Tribunal’s membership must not include any of the members of the Tribunal whose decision I have set aside. (3) If Mr T has any further written evidence or submission upon which he wishes to rely, they must be received by First-tier Tribunal within one month of the date this Decision is issued. (Signed on the Original) E Mitchell Judge of the Upper Tribunal 2 nd August 2016

Secretary of State for Defence v BB (WP) [2016] UKUT 0353 (AAC) CAF/634/2016 1 IN THE UPPER TRIBUNAL Appeal No. CAF/634/2016 ADMINISTRATIVE APPEALS CHAMBER Before Judge S M Lane DECISION 1. The decision of the tribunal heard on 19 November 2015 under reference AFCS/00417/2015 is SET ASIDE because its making involved an error on a point of law. 2 The appeal is REMITTED to a fully reconstituted tribunal for a complete rehearing. 3 The Secretary of State for Defence shall provide the tribunal with evidence regarding any leave taken by the claimant between 24 August 2011 and 26 September 2011. If he was not on leave for some or all of this time, the Secretary of State shall provide evidence about his service duties during that time. REASONS FOR DECISION 1 The Secretary of State for Defence (the appellant) brings this appeal with my permission. The respondent to the appeal is the claimant, and that is how I shall refer to him. 2 The Secretary of State argues that, in making its decision, the F-tT either ignored significant medical evidence or failed to give any or any adequate reasons for rejecting that evidence. The F-tT refused permission to appeal on the basis that the F-tT considered the relevant evidence and gave a succinct reason for preferring it: it found the claimant a credible witness. 3 I accept the Secretary of State’s submissions and allow the appeal. 4 A Tribunal must analyse the evidence on which it bases its findings of fact, make the necessary findings and explain why it made those findings. This does not mean that a Tribunal must examine each and every item of evidence given by the parties, but it goes without saying that the Tribunal must explain why significant evidence was accepted or rejected. The decision must allow the parties to understand why the decision was made. 5 This appeal involved compensation for an injury to a serviceman during his duties. The circumstances in which the claimant sustained the injury were these: He was injured in a road traffic accident on 19 August 2011 when the vehicle in which he was a passenger hit a pot hole and turned over several times. The claimant said (p19 and 66 of the UT bundle) that he had to be pulled from the vehicle, tried to walk but collapsed. He was then taken by helicopter to Southampton hospital where he was diagnosed as having soft tissue injury to his neck and back. The claimant was nevertheless in great pain, said he could not feel his legs for awhile. He was in Secretary of State for Defence v BB (WP) [2016] UKUT 0353 (AAC) CAF/634/2016 2 hospital for a few days. He claimed that he continued to have serious back pain since that time. 6 The Secretary of State was prepared to accept that the back pain from which the appellant claimed to suffer was attributable to service, but concluded that the injury was not serious enough to attract any award under Armed Forces and Reserve Forces (compensation Scheme) order 2011 (‘the AFCS’). He produced a substantial body of objective medical evidence to support his case. 7 The F-tT found that the claimant was entitled to a significant level of compensation for back pain caused by a traumatic injury to his spinal cord in the accident. It found the relevant descriptor to be item 21 in Table 6 of the AFCS 2011. Traumatic spinal injury resulting in partial paresis of lower or upper limbs or both, with substantial recovery, restoration of lower and upper limb motor and sensory function, including a useful ability to walk. 8 The F-tT’s consideration of the evidence was described in two sentences. The first was a mere heading – ‘’Having considered and assessed the evidence before it, the Tribunal finds the following material facts”. [Tribunal’s emphasis] The second was - ‘The Secretary of State recalls that [the claimant] was involved in a serious road vehicle accident on Salisbury plain as evidenced by the service medical records all [sic] the reverse side of page 32’. It did not address the content of that evidence, nor any of the other evidence supplied by the Secretary of State. It went on to accept the claimant’s evidence because - ‘We found [the claimant] a credible and honest wiliness [sic] and accept his evidence’. It then decided that the back pain fell to be compensated under descriptor 21 at level 7 as - ‘a traumatic spinal cord injury as a result of the accident, leaving him unable to move his legs for a time from which he has substantially recovered by continues to experience lower back pain.’ This descriptor itself refers to ‘traumatic spinal injury’, a concept that the Tribunal did not address in the context of the other evidence. Discussion 9 It is almost impossible to see how this decision can meet the minimum standards of adequacy in decision writing. The essence of an acceptable decision lies in the explanation the Tribunal gives for what it has done and how it did it, not in reciting Secretary of State for Defence v BB (WP) [2016] UKUT 0353 (AAC) CAF/634/2016 3 mantras such as those used by the Tribunal in this case. Those phrases were meaningless without further explanation. 10There was nothing at all to show that the Tribunal had regard to the substance of the Secretary of State’s evidence on the nature and extent of the injury. The Tribunal manifestly failed to deal with the body of evidence which pointed only to soft tissue only. It made findings of credibility without making any effort to explain why it rejected evidence medical evidence pointing to a different conclusion. It failed to explain why parasthesia was accepted as paresis. What were the two sides of the story? 11The claimant maintains that on his release from hospital, he remained in great pain and was unable to leave bed independently. He said had to be assisted to walk to the toilet and had his meals brought to him by fellow soldiers. Thereafter, he said he resumed normal duties because he ‘did not want to let the side down’ by complaining. When he left the army in 2013, he still had back pain from the accident and says he still does. 12The hospital evidence included an x-ray and MRI which showed that there was no spine or spinal cord injury (p27). Page 27 and 28 recorded that the claimant had developed some left arm weakness. He was released without needing any follow up or rehabilitation and given co-codamol 30/500. Page 28 gives a diagnosis of sprain. It mentions that the claimant was tender over his spine with some subjective sensory changes. 13The army medical records note that the appellant suffered from right lower limb parasthesia (change of sensation, often described as ‘pins and needles’), neck, low back and right arm pain when he was admitted to hospital (p32). Page 32 also indicates that following the accident and his return to base (seemingly 22 August) the appellant was certified as unfit for work for only two days. He was scheduled to go on leave from 24 August 2011 to 26 September 2011. There is an indication that he was to be on light duties ‘until then’, but the meaning of this is not clear. A factual report from RMO Lt. Col Thorpe at pages 35 – 37 completed in on 30 January 2013 indicates that the claimant was last seen for the injury on 23 August 2011, was to do stretching exercises, that treatment had finished and he did not need to be seen again. He notes that there were no significant functional limitations or restrictions and no ongoing functional impairments or restrictions. 14There is no mention of physiotherapy in the medical notes during the material time. This is in contrast to a previous episode of injury noted at page 33 which specifically mentions physiotherapy. 15The army records also show that the claimant attended medical services at least monthly after 27 September 2011. None of the attendances were for back pain, neck pain or limb numbness. He attended for a wide variety of other ailments, including haemmorhoids (for which he was unfit for duty for 2 days and on light duties for a time), malaise (light duties), a cold (1 day of unfitness for duty), a flu like illness (light duties), ear ache , inguinal lymphadenopathy with associated leg pain and a genital Secretary of State for Defence v BB (WP) [2016] UKUT 0353 (AAC) CAF/634/2016 4 complaint, a sprained ankle (July 2012) caused by doing a jig after a concert, nonspecific chest pain, a facial rash which stopped him shaving and red eye. Assessing medical evidence 16It should not be necessary for the Upper Tribunal to tell the First-tier Tribunal, especially a Tribunal sitting with a doctor, how to go about this task but it is obvious from this case that it is a skill that needs to be reinforced. The Secretary of State’s evidence clearly raised important issues about the extent of the injuries and their effects on the claimant. The Tribunal had to decide which evidence was more likely to be accurate. 17.In order to reach a supportable conclusion, the Tribunal had to test the strengths and weaknesses of the evidence and compare it to the other evidence after it had been similarly tested. To do this, it had to consider a number of factors including (but not limited to) the reliability of the evidence in terms of, for example, its source, its internal consistency, and its relationship to the other evidence. 18There were two main sources of information: one was medical, the other was the claimant’s views. 19What might be said about the hospital evidence? It was from disinterested 3 rd party. The hospital was reporting the results of an MRI and x-ray. These showed no injury to the spine or spinal cord. It is, of course, possible for test results to be ambiguous or for results to be misinterpreted so the Tribunal had to ask itself whether or not either of those was likely. The hospital also mentioned that the claimant complained of two subjective symptoms of left arm weakness and change of sensation in his leg. The hospital notes do not suggest paresis (paralysis), which is a requirement of descriptor 21 of Table 6. If the claimant was paralysed or partially paralysed, would the claimant have been discharged after 3 days with no further treatment or follow up? 20What might be said about the army notes? The army medical services saw the claimant. Is what they report and their treatment of the claimant consistent with the hospital notes? For example, the army note of the claimant’s attendance on 23 August (p32) does not mention paralysis, and does not mention the use of walking aids or a lack of independent mobility. Both the hospital and the army notes do mention parasthesia and subjective loss of sensation. If there was paralysis, was it likely that the claimant would have been given no further treatment or follow up or have been considered fit for leave? 21The Tribunal then had to weigh the claimant’s evidence. A person may give evidence honestly without it being accurate. That is why identification evidence in criminal cases is treated with great circumspection by the law. Similarly, a person’s evidence may be plausible, but not credible after it has been tested against the other evidence. On the other hand, of course, an unlikely explanation may be the correct one. The problem is that the Tribunal in this case failed to carry out any such exercise. Secretary of State for Defence v BB (WP) [2016] UKUT 0353 (AAC) CAF/634/2016 5 22The claimant offered an explanation as to why he did not complain further about his back pain. He said he did not want to let the side down. The credibility of that explanation needed to be assessed in the light of the further medical records before the Tribunal. 23The end result is that this decision cannot stand. It fundamentally fails to meet the most minimal requirements of judicial decision writing. 24The claimant’s representative submitted that, if the Secretary of State’s appeal succeeded, the case should be remitted to a fresh Tribunal so that the claimant could be given the opportunity to adduce further evidence to support his case. I accept that submission. The claimant has been through hard times recently and has had a period of homelessness. He was new to the surgery which provided the medical evidence in the file and it knew little about the claimant. It may be that with further directed enquiries, evidence will emerge which justifies an award. [Signed on original] S M Lane Judge of the Upper Tribunal [Date] 22 July 2016

AL v Secretary of State for Defence (WP) [2016] UKUT 141 (AAC) CAF/4780/2014 1 IN THE UPPER TRIBUNAL Case No: CAF/4780/2014 ADMINISTRATIVE APPEALS CHAMBER DECISION BY THE UPPER TRIBUNAL (ADMINISTRATIVE APPEALS CHAMBER) The DECISION of the Upper Tribunal is to dismiss the appeal. Though there are errors of law in the reasons for the First-tier Tribunal’s decision, I am not satisfied that I should set the decision aside. REASONS Introduction 1. This appeal raises an important issue about the nature and extent of the Medical Adviser’s duties when providing a certificate of entitlement and assessment pursuant to Article 43 of The Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 2006 [“the SPO”], 2. I have concluded that the Medical Adviser’s duties go far wider than those supposed by the First-tier Tribunal [“the tribunal”] hearing this appeal. Rather than merely considering the claimed condition and the medical evidence in order to decide whether to certify that an award should be made, I find that the Medical Adviser is not restricted to consideration of the claimed conditions alone. All conditions that appear to be raised by the claimed disablement and all evidence should always be considered whether or not these conditions have been expressly referred to in the claim form. If that consideration gives a reason to believe there is a further condition relevant to the claimed disablement for which no claim has been made but which should be investigated further, the Medical Adviser must not ignore that fact. 3. Even though the tribunal found the certificate of entitlement to be defective in two respects, it decided that it was not the Medical Adviser’s role to do anything other than consider the claimed condition and the medical evidence before deciding whether to certify an award for the claimed condition. For that reason, it erroneously concluded that there had been no official error in the certificate. 4. There was a further error of law apparent in the tribunal’s decision. The appeal concerned itself with the Respondent’s decision on 12 September 2007 to refuse to review the commencement date of an award based upon a 100% assessment made by a tribunal on 31 March 2004. The 2004 tribunal’s decision was in respect of assessment alone and thus the AL v Secretary of State for Defence (WP) [2016] UKUT 141 (AAC) CAF/4780/2014 2 tribunal in the present case was wrong in law to conclude (a) that a review of the commencement date of the award could only be carried out if the requirements of Article 44(3) [a relevant change of circumstances] were satisfied and (b) that it was bound by a tribunal decision in April 2002. 5. Though there are clear errors of law in the tribunal’s decision, I have decided to exercise my discretion pursuant to section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007 not to set the tribunal’s decision aside. I have taken this course as the decision is the only one which a tribunal could rationally have reached on the evidence before it. Background 6. The background to this matter is somewhat convoluted and what follows is a summary pertinent to this appeal. 7. The Appellant is a former soldier who was discharged from service on 28 July 1999. His initial claim for a war pension was made on 7 February 2000 in respect of the disablement of Post Traumatic Stress Disorder [PTSD]. On 5 December 2000 the Appellant was awarded a war pension assessed at 6-14%. This was on the basis of a certificate of entitlement and assessment dated 1 December 2000 provided by Dr A which recorded that PTSD was attributable to service. The certificate recorded that “there is no evidence of psychotic illness”. 8. After a series of review applications and appeals, the award was increased such that disablement was assessed at 30% from immediately after discharge, that is, from 29 July 1999. Thereafter the award was increased to 40% with effect from 22 January 2001 [the 2002 decision] and 100% with effect from 12 November 2002 [the 2004 decision]. 9. The additional disablement of schizophrenia was determined as attributable to service in July 2002 and thus both the 2002 and 2004 decisions were based on combined assessments of both disablements. 10. On 28 August 2007 the Appellant applied for a review which challenged the commencement date for the 100% assessment, saying that this should have applied from 1998/1999. The Respondent disagreed and the Appellant appealed to a tribunal. This is the decision on review which was appealed to the Pensions Appeal Tribunal [“PAT”] in 2008 and then once more to the First-tier Tribunal, the Upper Tribunal having allowed the Appellant’s appeal against the decision of the PAT on 30 January 2012. 11. The PAT heard the appeal on 27 March 2009 and dismissed it, holding that there were no grounds made out under Schedule 3, Article 46 of the SPO 2006 for backdating the 100% assessment to a date earlier than 12 AL v Secretary of State for Defence (WP) [2016] UKUT 141 (AAC) CAF/4780/2014 3 November 2002. Unfortunately the PAT proceeded on the basis that the only decision under scrutiny was the 2004 decision and failed to rule on whether the Respondent ought to have backdated the earlier 40% assessment in the 2002 decision. 12. Since the time of the appeal to the Upper Tribunal, the Appellant has challenged the 2007 review decision on the basis that there was an “official error” in the certificate of entitlement and assessment dated 1 December 2000. Upper Tribunal Judge Pacey had identified this as the key issue in his direction order of 1 June 2011. He noted that the appeal turned on whether the original award in 2000 was based on erroneous medical advice in the certificate from Dr A. This had recorded that there was no evidence of psychotic illness though Upper Tribunal Judge Pacey noted that there was medical evidence within the file which referred to the Appellant suffering from delusions and which it appeared Dr A had not considered. 13. Permission to appeal to the Upper Tribunal was granted by Upper Tribunal Judge Pacey on 26 August 2010 and he allowed the appeal on 30 January 2012 on the basis that the PAT had erred in law in failing to consider whether the 2002 decision should have been backdated. The appeal was remitted to the First-tier Tribunal for re-hearing. The Tribunal Decision 14. The First-tier Tribunal considered the appeal on the papers alone as had been agreed by both parties. On 11 November 2013 it dismissed the appeal, determining that the commencement dates of both the 2002 and 2004 decisions were correct. 15. The tribunal also held that there had been no official error in the original decision by reason of the failure to award for schizophrenia based on the certificate of 1 December 2000. This was despite its findings that Dr A had been incorrect to state that there was no evidence of psychotic illness and that he had failed to consider some of the case notes relevant to the Appellant’s mental health when drawing up the certificate of entitlement. 16. The reason the tribunal found there was no official error was because the official error must relate to the claim which had been made. I set out the relevant parts of the tribunal’s reasoning in full: “25. We have reviewed all the evidence that the Veterans Agency had on 1 December 2000. There was sufficient evidence of PTSD to satisfy Dr A on the balance of probabilities that [the Appellant] was suffering from PTSD – the condition for which he had claimed. There was also some evidence to suggest that he might have suffered from personality traits and psychotic symptoms. There was no diagnosis of psychotic illness by a psychiatric specialist. AL v Secretary of State for Defence (WP) [2016] UKUT 141 (AAC) CAF/4780/2014 4 26. We find that Dr A was incorrect to say that there is no evidence of psychotic illness although we note that he did so in the paragraph in the certificate relating to assessment. We also find that some of the case notes received by the Veterans Agency from St Ann’s Hospital on 11 May 2000 were not taken into account by Dr A. We say this because they are not listed on the reverse of the Certificate dated 1 December 2000. 27. Article 34 of SPO 2006 provides that it is a condition precedent to making any award of any pension, allowance or supplement that a claim shall have been made. The exceptions in Article 34(4) and (5) and Article 35 do not apply in this case. 28. The Medical Adviser’s duty is to consider the claim that has been made. If he makes a clear and obvious mistake in relation to that then there would be an official error. Where, as in this case, a claim is made in respect of a well recognised condition the Medical Adviser needs to be satisfied on the balance of probabilities that the claimant has the claimed disablement before then considering whether it is attributable to or aggravated by service. 29. We have considered Hogan Lovells contentions in paragraph 4.3 about the argument that a claim had not been made. We do not consider the fact that the Appellant has subsequently been granted an award in respect of schizophrenia which dates from April 2001 is relevant. It arose out of an application for review lodged in January 2001. The difference between the January and April dates is the subject of the concession referred to in paragraph 17 above. 30. The second point made by Hogan Lovells in paragraph 4.3 concerns misdiagnosis. They rely on paragraph 23 of R(AF) 1/08. In view of our findings in paragraphs 25 and 28 above we do not consider that any question of misdiagnosis arises when considering whether there was an official error in the Certificate dated 1 December 2000. We also consider that it is for the treating physician to make the diagnosis. The Medical Adviser considers the claimed condition and the medical evidence to decide whether to certify that an award should be made for the claimed condition. 31. It is important to note that in R(AF) 1/08 PTSD was substituted for Generalised Anxiety Disorder. In this appeal there is no suggestion that [the Appellant] did not suffer from PTSD but the contention is that he also suffered from schizophrenia which he had not claimed. Schizophrenia is a very different mental condition from PTSD and is certainly an “additional impairment of his body or mind” – see paragraph 23 of R(AF) 1/08. 32… 33. Against the background of a claim for PTSD we find that there was no requirement to consider other psychiatric conditions and only limited evidence of a psychotic condition. Thus there was not a clear and obvious mistake which resulted in the decision refusing entitlement (see paragraph 20 of R(AF) 1/07).” AL v Secretary of State for Defence (WP) [2016] UKUT 141 (AAC) CAF/4780/2014 5 17. The tribunal also dismissed the Appellant’s contention that the commencement date of the assessment decision of July 2002 should be backdated. It did so because it held that the Respondent was bound by the decision of the assessment appeal in April 2002 which substituted the tribunal’s decision for that of the Respondent in circumstances where the tribunal was said to have taken account of all of the Appellant’s psychiatric disablement. The Appeal to the Upper Tribunal 18. The First-tier Tribunal refused permission to appeal on 1 April 2014. I granted permission to appeal on 3 December 2014. I identified the following arguable issues. 19. First, the tribunal may have erred in holding that there was no official error in the December 2000 certificate and in the original war pension award in circumstances where Dr A’s assessment was said to have been based on incomplete medical evidence. 20. Second, the tribunal may have also erred in holding that there was no onus on the Medical Adviser to consider other psychiatric conditions, taking into account the nature of the process followed when considering and determining an application for a war pension. I suggested that that process was consistent with a more active rather than reactive approach to the question of entitlement. 21. Third, the tribunal may have erred in finding that there was limited evidence of a psychotic condition, and hence no clear and obvious mistake on the part of Dr A, without actually addressing what evidence there was and why it was said to be limited and not significant. 22. Fourth, the tribunal had in its directions order dated 12 November 2012 raised the point that the commencement date of the 2002 decision had been set by a decision of the PAT on 12 April 2002. Accordingly the commencement date of the 2002 decision could only now be changed on review pursuant to Article 44(3). That would only be possible if there had been a relevant change of circumstances since the assessment of decision had been made. The tribunal commented that neither party had raised this issue at the hearing and accordingly decided that it did not need to determine this issue. I suggested that this was arguably not the correct way to proceed where the legal basis for resolving this appeal may be in doubt. 23. Finally, I suggested that the tribunal should have considered whether or not to hold an oral hearing even though both parties had agreed to the matter being determined on paper. AL v Secretary of State for Defence (WP) [2016] UKUT 141 (AAC) CAF/4780/2014 6 24. I held an oral hearing of this appeal on 23 February 2016. The Appellant did not attend, his presence having been excused. Mr Tucker from the Royal British Legion appeared on the Appellant’s behalf. Mr Adam Heppinstall of counsel represented the Respondent. I am very grateful to both representatives for their very helpful written and oral submissions. 25. Accompanying Mr Heppinstall’s submission was a document entitled “Medical Comment” on the medical issues in this case prepared by Anne Braidwood, medical adviser to the Secretary of State. I am grateful for the provision of this material. The Relevant Legislation and Caselaw 26. Part IV of the SPO is headed “Claims” and Article 34 therein is headed “Making of Claims”. Article 34(1) states that “it shall be a condition precedent to the making of any award of any pension, allowance or supplement mentioned in paragraph 2 … 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, allowance or supplement payable under this Order and (b) delivered that form to an appropriate office of the Secretary of state or to an office of an authorised agent”. However Article 35 provides for certain cases where claims are not required, for example, a claim for surviving spouse/civil partner’s pension where the service member died whilst serving in the armed forces. In this context Article 35(6) states the following: “Where a claim has been made for retired pay or a disablement pension under article 6 on the basis of a particular disablement which is alleged to have been due to an injury which is attributable to or aggravated by service, no separate claim shall be required in respect of any other disablement which appears, upon an examination which is conducted by a medical practitioner before the claim is determined, to have been so attributable or so aggravated whether due to that or another injury.” Thus, if Airman X claimed on the basis that he had one sort of injury attributable to service and, on examination by the doctor instructed for that purpose, he is also found to have another type of injury attributable to or aggravated by service, Airman X need not make a separate claim as normally required by Article 34(1). That interpretation is consistent with paragraph 55 of MF v Secretary of State for Defence (wP0 [2013] UKUT 491 (AAC). 27. Part V of the SPO is headed “Adjudication” and Article 43 therein is entitled “Certification”. This provides that: “Where any matter is required by this Order to be certified, that matter shall be determined – [a] where a Tribunal constituted under the War Pensions (Administrative Provisions) Act 1919 or the Pensions Appeal Tribunals Act 1943 or established under the Tribunals, Courts and Enforcement Act 2007 has given a decision on that matter under those Acts, in accordance with that AL v Secretary of State for Defence (WP) [2016] UKUT 141 (AAC) CAF/4780/2014 7 decision or, if an appeal from that decision is brought under those Acts, in accordance with the decision on that appeal; [b] where no such decision has been given and the matter involves a medical question – [i] in accordance with a certificate on that question of a medical officer or board of medical officers appointed or recognised by the Secretary of State, [ii] In a case where a pension or retired pay was payable in respect of disablement or death before the commencement of the 1914 World War or after 30 September 1921 but before 3 September 1939, if a certificate on that question has been given before 29 July 1996 by a medical officer or a board of medical officers appointed by the Secretary of State for Defence, in accordance with that certificate, [iii] where it appears to the Secretary of State that the medical question raises a serious doubt or difficulty and he so desires, in accordance with the opinion thereon obtained from one or more of a panel of independent medical experts nominated by the President of the Royal College of Physicians of London, the Royal College of Surgeons of England or the Royal College of Obstetricians and Gynaecologists.” 28. Article 43 makes plain that, absent a decision of a tribunal, a medical question may be determined in accordance with a certificate produced by a medical officer or a board of medical officers appointed by the Respondent. Thus medical advisers play a pivotal role on matters of entitlement and assessment under the SPO. 29. Article 46 in Part VI of the SPO is entitled “Commencing dates of awards” and provides that Schedule 3 has effect in this regard. Pursuant to paragraph 1(7) of that Schedule, where an award is reviewed as a result of a decision which arose from official error, the reviewed decision shall, as a consequence, take effect from the date of the original decision. Official error is defined in that paragraph as “an error made by the Secretary of State or any officer of his carrying out functions in connection with war pensions, defence or foreign or commonwealth affairs to which no other person materially contributed, including reliance on erroneous medical advice but excluding any error of law which is only shown to have been an error by virtue of a subsequent decision of a court”. 30. The case of R(AF) 5/07 provided guidance on what would constitute official error in the context of a certificate. Paragraph 20 reads as follows: “…The question of whether the refusal of an award in 1965 resulted from official error must be decided on the basis of medical knowledge as it was at that time. It will not be sufficient to show merely that there was a misdiagnosis of the appellant’s condition. Applying the standards to be expected of a reasonably competent medical practitioner in the light of psychiatric knowledge in 1965, it will be necessary to demonstrate some AL v Secretary of State for Defence (WP) [2016] UKUT 141 (AAC) CAF/4780/2014 8 clear and obvious mistake which resulted in the decision refusing entitlement…” 31. Finally, although Article 44(1) of the SPO permits review of a decision accepting or rejecting a claim for pension or the assessment of the degree of disablement at any time on any ground, Article 44(3) provides that any assessment or decision made by the Pensions Appeal Tribunal, or the First-tier Tribunal may be reviewed by the Secretary of State at any time if the Secretary of State is satisfied that there has been a relevant change of circumstances since the assessment or decision was made, including any improvement or deterioration in the disablement in respect of which the assessment was made. The Arguments of the Parties 32. These can be summarised fairly succinctly. Both parties were in agreement that the key issue to be considered in this appeal was the nature and extent of the Medical Adviser’s duties when providing a certificate of entitlement and assessment. Both agreed that the tribunal’s belief that diagnosis was a matter for a treating clinician whereas the Medical Adviser’s role was only to consider the claimed condition and the medical evidence to decide whether or not to certify that an award should be made was to misunderstand the nature of the Medical Adviser’s duties. 33. The Appellant argued that the tribunal’s findings underpinning its decision were sound, namely that Dr A’s assessment was based on incomplete papers together with a mistaken conclusion that there was no evidence of psychotic illness. Thus the tribunal’s conclusion that there was no official error in December 2000 certificate was unsound in the light of its own findings. He invited me to conclude that the error of law was material and to set aside the tribunal’s decision and either to remit the matter for re-hearing or to remake the decision myself. 34. The Respondent submitted that, despite the tribunal’s mistaken approach to the role of the Medical Adviser, it made the right decision for the wrong reasons. He questioned whether Dr A had not in fact seen all the papers but, in any event, he submitted that Dr A’s conclusions were not so obviously wrong as to amount to official error having regard to the test in R(AF) 1/07. He invited me to uphold the tribunal’s decision as the error was not material. If I decided that the error of law was material, I should remit this matter to the First-tier Tribunal rather than remake the decision myself. 35. At the hearing both parties agreed that the tribunal was wrong in law to conclude in paragraphs 38-40 that a review of the commencement date of the award could only be carried out if the requirements of Article 44(3) were satisfied. The Respondent’s 2007 decision refused to review the AL v Secretary of State for Defence (WP) [2016] UKUT 141 (AAC) CAF/4780/2014 9 commencement date of the Appellant’s award based on 100% assessment made by a tribunal on 31 March 2004. It is clear from the tribunal’s decision that this was an assessment appeal pursuant to section 5 of the Pensions Appeal Tribunals Act 1943. Jurisdiction to determine or confirm the commencement date of the award was never before the tribunal in either 2002 or 2004. Thus the Respondent was entitled to review the commencement date of the award in 2007 and was not bound by the requirements of Article 44(3). Discussion 36. I consider (a) the role of the Medical Adviser; (a) the tribunal’s reasoning about Dr A’s December 2000 certificate; and (c) whether any error of law on this issue requires me to set aside the tribunal’s decision. The Role of the Medical Adviser 37. Though the Secretary of State is the decision maker, Article 43 gives a prominent role to the Medical Adviser since medical questions requiring certification are determined by the Secretary of State in accordance with the Medical Adviser’s certificate. Certification is necessary to secure entitlement [see Articles 40 and 41] and to establish the degree of disablement [Article 42]. The basic condition for an award requires a connection between service and disablement or death. The mere fact that a condition develops in service does not signify that it is caused or worsened by service. 38. Thus the Medical Adviser asked to consider a claim is not restricted to the claimed condition alone. Article 35(6) underscores this as set out in paragraph 27 above. All conditions that appear to the Adviser to be raised by the claimed disablement and evidence – whether or not these conditions have been expressly referred to in the claim form should be considered. The Respondent made the valid point in this context, that Medical Advisers are well used to considering medical evidence against the context of claim forms which, for example, may refer to a condition which is not the correct diagnosis for the claimant’s condition or which may omit to refer to a medically recognised condition altogether. 39. The Respondent’s position is that a Medical Adviser asked to review a claimant’s case should – and in practice, does – always consider the totality of the medical evidence presented to him or her. If that evidence gives a reason to believe that there is a further condition relevant to the claimed disablement for which the claimant has not claimed but which should be investigated further, the Medical Adviser will not ignore that evidence. I find that this formulation accords with the manner in which claims are made under the Scheme and with good clinical practice. AL v Secretary of State for Defence (WP) [2016] UKUT 141 (AAC) CAF/4780/2014 10 40. What is the practical effect of that duty? The Medical Adviser’s responsibility is to consider the claim that has been made. In practice, where consent is given by a claimant to the Respondent for access to the claimant’s medical records under the Data Protection Act 1998, that consent extends only to the medical records required to be reviewed to determine the condition as claimed. 41. Thus, where a claim is made for one condition alone and the Medical Adviser takes the view that further closely related condition is also established on the evidence as existing and attributable to service, the claim is likely to be granted in respect of both those conditions. The Respondent submitted that, in such a scenario, it was easy to see how the original claim could be construed as impliedly including the closely related (but medically distinct) further condition and/or that the symptoms expressly complained of required the diagnostic label of that further condition. 42. However different considerations apply where a claim is made for one condition and the medical evidence indicates that there is a further condition likely to be attributable to service but which is completely unconnected to the claimed condition. The Respondent submitted that the Medical Adviser would not treat the claim as impliedly encompassing the second condition and would not consider the second condition as a matter of diagnostic labelling. Instead the certificate issued would relate to the claimed condition alone but the claimant would be separately informed that there was reason to believe s/he may have claim in respect of the second condition and would be advised to make such a claim. In any event, the Respondent stated that any medical evidence and records relating to that second condition would be sought with a further Data Protection consent to cover that material being obtained from the claimant. 43. In summary, the Respondent emphasised that the Medical Adviser does not take a purely reactive role on the basis of the content of the claim form alone. S/he carries out a full review of the overall medical evidence and the existence of other conditions which may be attributable to service is not ignored. The Appellant agreed with that formulation. 44. I accept the above description of the Medical Adviser’s role where certification is required by the SPO. The process of verifying a claim requires a claimant to submit him/herself to an examination by a doctor commissioned on behalf of the Respondent. This examination includes both a mental health and a physical health assessment. Its conclusions are written up and the examining doctor gives his/her opinion as to diagnosis and effect on function of all conditions identified. The Medical Adviser uses this examination together with the evidence (service records, medical records etc) in order to determine whether any claimed or closely related condition is attributable to service and if so, the degree AL v Secretary of State for Defence (WP) [2016] UKUT 141 (AAC) CAF/4780/2014 11 of disablement. Where there are two separate conditions which may be attributable to service but records are available only in relation to one condition, the Medical Adviser sets in train the process described in paragraph 42 above. 45. This entire process is entirely consistent with what I described in my grant of permission as a more active rather than passive approach to entitlement by the Respondent’s Medical Advisers. The Tribunal’s Reasoning 46. In this case, I find that the tribunal adopted a misguided approach to the role of the Medical Adviser. Though it quite properly concluded that the Medical Adviser’s duty was to consider the claim that had been made [paragraph 26, Statement of Reasons], its formulation of the Medical Adviser’s duties in paragraph 30 was overly narrow. Its conclusion in paragraph 33 that, against the background of a claim for PTSD, the Medical Adviser was not required to consider other psychiatric conditions flew in the face of not only the process adopted by the Respondent when verifying a claim but also the duty imposed on the Respondent by Article 35(6) to consider other disabling conditions where no claim had been made. 47. The tribunal’s approach was unarguably in error. It allowed it to overlook the effect of its own findings, namely that Dr A had not taken into account some of the case notes from St Ann’s Hospital and that he was incorrect to say that there was no evidence of psychotic illness. 48. Furthermore, the tribunal’s focus was not where Upper Tribunal Judge Pacey suggested it should have been. His directions order dated 1 June 2011 identified the correct route which the tribunal should have followed. The relevant part of that order reads as follows: “…In relation to the question of backdating, this turns upon whether the award in 2000 was based on “erroneous medical advice”. The advice concerned is the certificate given in December 2000 by Dr A. He found that there was an attributable condition of PTSD and said that “there is no evidence of psychotic illness”. It is not sufficient to say that, in the light of the subsequent diagnosis of schizophrenia, Dr A gave erroneous advice. The question is whether on the facts before him his advice was wrong. I remind myself that in R(AF) 5/07 it was said that “it will not be sufficient to show merely that there was a misdiagnosis of the claimant’s condition. Applying the standards to be expected of a reasonably competent medical practitioner in the light of psychiatric knowledge [at the time] it will be necessary to demonstrate some clear and obvious mistake…” Unfortunately at no stage did the tribunal apply this test to the material before it. The reason it found that there was no official error was because it held that the official error must relate to the claim which had been AL v Secretary of State for Defence (WP) [2016] UKUT 141 (AAC) CAF/4780/2014 12 made, namely PTSD. Other conditions unclaimed for but present which may have been attributable to service could thus, in the tribunal’s analysis, be disregarded when considering if there had been official error. 49. For all the above reasons, I find that the tribunal erred in law in its approach to this issue. Even if that is so, I must then consider whether that error is material to the outcome of this appeal. What Next 50. The Respondent submitted that, notwithstanding the above error of law, the decision reached by the tribunal was the only one which it could rationally have reached on the evidence before it, applying the test for official error set out in Upper Tribunal Judge Pacey’s directions. He invited me not to set the tribunal’s decision aside but to uphold it. 51. In contrast the Appellant said that the tribunal’s decision should be set aside and I was invited either to remake the decision or to remit the matter to the First-tier Tribunal for re-hearing. 52. Under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007 the Upper Tribunal may (but need not) set aside the decision of the First-tier Tribunal where the decision under appeal involved the making of an error on a point of law. This is a discretionary power as section 12(2)(a) makes clear. If the tribunal’s decision is set aside, section 12(2)(b) empowers me either to remit the matter to the First-tier Tribunal with direction for its reconsideration or to remake the decision myself. 53. I approach the exercise of my discretion whether or not to set aside the tribunal’s decision having regard to the well-established principle that it is the impact of an error of law on the outcome of the proceedings which is key. Errors of law which would have made no difference to the outcome would not justify setting aside the tribunal’s decision. Lord Neuberger in Holmes-Moorhouse v Richmond upon Thames London Borough Council [2009] UKHL 7 set out some of the ways in which a decision could survive an error in the tribunal’s reasoning: these include (a) where the decision is irrelevant to the outcome; (b) where there is more than one reason for the conclusion and error only undermines one of the reasons; and (c) where the decision is the only one could rationally have been reached [see paragraph 51 of that decision]. 54. After careful thought I have come to the conclusion that the tribunal’s decision that there was no official error on the certificate of entitlement was the only decision which a tribunal could rationally have reached. In coming to that view I have had in mind the test for official error which the tribunal should have applied but did not. AL v Secretary of State for Defence (WP) [2016] UKUT 141 (AAC) CAF/4780/2014 13 55. Was Dr A’s certification on the facts before him clearly and obviously mistaken, applying the standards of a reasonably competent medical practitioner in the light of psychiatric knowledge at the time? That might be so if he failed to consider relevant medical or other information. In this case the tribunal found that he had not taken into account some of the case notes from St Ann’s Hospital as they were not listed on the reverse of the certificate. It is unfortunate that the tribunal did not explain what was of relevance in that material in respect of other possible psychiatric conditions from which the Appellant might have been suffering at the time he left service. 56. I have considered what in that missing material was of relevance and the key relevant document is a letter from a chartered psychologist to the Appellant’s doctor dated 28 October 1999. It made reference to the Appellant hearing a voice persistently telling him to harm or kill someone. The psychologist suggested that a psychiatric referral made by the Appellant’s GP might be appropriate. The notes of the Appellant’s meeting with the psychologist on 28 October 1999 also make reference to a fear of schizophrenia and the Appellant “seeing black shapes out”. It is however noteworthy that the Appellant was discharged by the chartered psychologist on 11 February 2000 without there being any suggestion that the Appellant at that time continued to suffer from psychotic phenomena such as hearing voices. On the contrary, the Appellant - and to some extent the psychologist as the decision to discharge showed - perceived the severity of his mental health difficulties to be greatly reduced. The records from St Ann’s Hospital concluded on 11 February 2000. 57. Though this material was not before Dr A as it post-dated the certificate, the medical records after December 2000 show considerable uncertainty about the cause of the Appellant’s mental health problems. I note that in July 2001 there was no diagnosis of schizophrenia despite the Appellant having had low mood and psychotic symptoms and being under the care of the Community Mental Health Team [page 138]. A firm diagnosis of schizophrenic illness was not made until March 2002 [page 166]. 58. The Appellant had an undisputed diagnosis of Post Traumatic Stress Disorder which Dr A accepted as attributable to service. However Dr A concluded that there was no evidence of psychotic illness in December 2000. It is important to place that conclusion in the context of the analysis contained in the certificate which reads as follows: “The diagnostic label is based on the totality of the evidence. Notwithstanding the various psychiatric opinions, on balance of probabilities, the diagnosis is appropriate and sufficient diagnostic criteria are met. He may well have some abnormal personality traits but these make him vulnerable and are not the sole cause of his present problems. Service factors cannot be excluded from the aetiology hence attributable to service. Panic attacks and nightmares are part and parcel. The AL v Secretary of State for Defence (WP) [2016] UKUT 141 (AAC) CAF/4780/2014 14 evidence shows that he is coming to terms with his psychological problems and has good insight. There is no evidence pf psychotic illness. Subjective and objective distress is greatly diminished and he is functioning well in terms of work, social and personal matters…” 59. Dr Braidwood ‘s medical comment stated that she believed Dr A’s approach represented a reasoned and reasonable medical judgement and the evidence considered was adequate and properly used to inform the findings. Given the undoubted problems in accurately diagnosing mental health disorders, Dr Braidwood thought it highly unlikely that another doctor could have come to a different conclusion and accepted the presence of a psychotic disorder, far less schizophrenia specifically [page 659]. 60. Did Dr A discharge the duties of a Medical Adviser described earlier in this decision? Though the Respondent sought to argue that Dr A had in fact seen all the medical records including those from St Ann’s Hospital, I was not persuaded by that submission. Dr A carefully recorded on the reverse of his certificate the evidence on which it was based and it is clear to me that he had not seen the relevant St Ann’s Hospital records. I do not know why that was since his analysis of the Appellant’s mental health difficulties was otherwise insightful and comprehensive. I accept Dr Braidwood’s evidence that the fact that Dr A expressly discounted evidence of psychotic illness indicated that he had gone beyond the strict and narrow terms of the Appellant’s claim. The reference to psychotic illness was based on medical records in 1997 which recorded a GP opinion that the Appellant had “delusions” about a bomb under a car. I ntoe that the Appellant was seen within a week by a consultant psychiatrist who had previously assessed him. On examination the “delusions” were found to be not the Appellant’s beliefs but those of a girlfriend which the appellant had not sought to verify. There was no diagnosis of psychotic illness made at that time or indeed at any time whilst the Appellant remained in service. 61. Accepting the tribunal’s finding that Dr A did not take account of some medical records – records which may have been of relevance - I have concluded that the material contained in those records would have made no difference to Dr A’s assessment of the Appellant’s mental health problems. Nothing in the notes from St Ann’s Hospital could have supported a diagnosis of schizophrenia in December 2000 or earlier or indeed formed a basis to suspect the presence of an enduring psychotic illness at those times. Whilst the Appellant had clearly suffered some psychotic symptoms in the past, the presence of these symptoms was not diagnostic of a psychotic illness let alone schizophrenia as illustrated by the subsequent medical history in July 2001. 62. Applying the test set for official error set out in Upper Tribunal Judge Pacey’s directions, I have come to the conclusion that this was not made AL v Secretary of State for Defence (WP) [2016] UKUT 141 (AAC) CAF/4780/2014 15 out. The tribunal’s decision was correct. That decision was the only rational decision on all the evidence which a tribunal could have reached. 63. For all the above reasons, I have concluded that the tribunal’s decision on the issue of Dr A’s Certificate can survive despite the errors of reasoning which supported it and I exercise my discretion not to set aside the tribunal’s decision. Additional Issue: Article 44(3) 64. Both parties were in agreement at the hearing before me that the tribunal had erroneously concluded that a review of the commencement date of the award could only be carried out if there had been a relevant change of circumstances as required by Article 44(3). I accept that submission. 65. The appeal before the tribunal was against the decision of the Secretary of State dated 12 September 2007 which refused to review the commencement date of an award based on a 100% assessment made by a tribunal on 31 March 2004. That tribunal could not have either confirmed or determined the commencement date of the assessment as the appeal before them was confined to assessment issues pursuant to section 5 of the Pensions Appeal Tribunals Act 1943. 66. Jurisdiction to determine or confirm the commencement date of an award is conferred on tribunals by section 5A of the Pension Appeal Tribunals Act. Article 46 and Schedule 3 of the SPO make provisions for the commencement dates of awards. In paragraph 24 of R(AF) 1/08 Upper Tribunal Judge Bano stated that, in cases where entitlement to backdating depends on the valid review of an earlier decision, it may be necessary to consider whether there is any statutory impediment to the exercise of the review power such as that contained in Article 44(3) (namely a relevant change of circumstances which is necessary before there can be a review by the Secretary of State of a tribunal’s decision or assessment). 67. In its decision the tribunal concluded in paragraph 38 that there could be no backdating on the grounds of official error because of the assessment appeal heard on 12 April 2002. It stated that this was because the decision took into account all of the Appellant’s psychiatric problems “see the reference to the Secretary of State’s decision dated 26 October 2001, the certificate for which made clear that all psychiatric disablement had been accepted”. 68. I have come to the view that the tribunal erred in law in considering itself bound by this decision. First, the appeal was an assessment appeal [page 153] and thus confined to assessment issues alone. Second there is no reference in the tribunal’s reasons to a decision by the Secretary of State dated 26 October 2001 in which all psychiatric disablement was AL v Secretary of State for Defence (WP) [2016] UKUT 141 (AAC) CAF/4780/2014 16 accepted. Third, it is certainly not apparent from the short paragraph outlining the facts found by the tribunal that the tribunal took into account all of the Appellant’s psychiatric disablement. 69. In paragraph 39 the tribunal further held that the commencement date was set because of the April 2002 tribunal. That is incorrect for the reasons spelled out above. However the tribunal went on to state rather confusingly that, because neither party had raised the issue of whether Article 44(3) applied, the tribunal did not need to consider it. I find the tribunal’s reasoning difficult to follow. It found there was an impediment to backdating by reason of a tribunal decision dated 12 April 2002 but then seemed to suggest that it need not consider that aspect of this appeal as the parties had not done so. I note that the tribunal had itself raised the issue of backdating and the effect of Article 44(3) in its own directions order dated 20 November 2012. Whether or not the parties had addressed this issue, I consider that the tribunal had a responsibility to address it if it thought this issue of jurisdiction was significant. 70. In conclusion the tribunal erred by believing that earlier decisions inhibited it from backdating the commencement of the award for schizophrenia to 29 July 1999. Does this mean that I should set its decision aside? I have concluded that I should not as this error does not affect the outcome in the light of my conclusions about Dr A’s certificate. Paper versus Oral Hearing 71. I did not invite submissions on this issue at the hearing as it seemed to me to be relatively insignificant in comparison to the main ground of appeal. It is not necessary for me to express a view on this issue given my overall conclusions on this appeal. Conclusion 72. Though the tribunal erred in law on two issues, its decision survives this appeal for the reasons I have given. Gwynneth Knowles QC Judge of the Upper Tribunal 11 March 2016. [signed on original as dated]

DS v Secretary of State for Defence (WP) [2016] UKUT 0051 (AAC) CAF/1961/2015 and CAF/1962/2015 1 IN THE UPPER TRIBUNAL ADMINISTRATIVE APPEALS CHAMBER Case Nos. CAF/1961/2015 CAF/1962/2015 Before Upper Tribunal Judge Rowland Decision: The claimant’s appeals are dismissed. REASONS FOR DECISION 1. The claimant appeals, with my permission, against decisions of the First-tier Tribunal dated 19 March 2015 dismissing his appeals against decisions of the Secretary of State dated 1 February 2012 and 15 August 2014 making interim longterm assessments of the extent of the claimant’s disability in respect of a chronic knee condition – the conditions accepted as attributable to service were injury to right knee, chondromalacia right patella and menisectomies right knee – at 40% from, respectively, 8 August 2011 and 27 May 2014. Neither party has sought an oral hearing. 2. The claimant’s injuries were caused during his service as a regular soldier in the Army, which ended prematurely in 1969 when he was found permanently unfit for Army service. When he was discharged, he was awarded a disablement pension based on an assessment of disablement of 20%. The precise sequence of the early assessments and awards is not entirely clear from the documents before me but a long term interim assessment of 20% was made in 1972 and was maintained in 1998. The claimant applied for another review in 2011 and the assessment was increased to 40% by virtue of the decision of 1 February 2012 because there had been significant deterioration in his condition since 1998. The claimant appealed. The first two decisions of the First-tier Tribunal dismissing appeals from that decision were set aside by the Upper Tribunal (on files CAF/3077/2012 and CAF/2768/2014) and the case was remitted for hearing for a third time. Meanwhile, a further application for review in 2014 had resulted in the assessment of 40% being maintained on 15 August 2014. The claimant also appealed against that decision and that appeal was heard with the remitted appeal. 3. The claimant’s case before the First-tier Tribunal was that the assessments of 40% were too low. He contended that assessments of at least 60% would be more appropriate. The hearing took place on 19 March 2015 in the claimant’s absence, because he lived abroad. However, he was represented by the Royal British Legion and his son, who happened to be a student in England, appeared as a witness. The First-tier Tribunal dismissed his appeals and it is against those decisions that the present appeal is brought. 4. The claimant raised a very large number of grounds of appeal in his application to the First-tier Tribunal for permission to appeal, but he pursued only two in his application to the Upper Tribunal, perhaps because, in refusing the application to the First-tier Tribunal, the Chamber President of the War Pensions and Armed Forces Compensation Chamber gave a particularly detailed decision explaining why she considered that none of the grounds advanced in the application DS v Secretary of State for Defence (WP) [2016] UKUT 0051 (AAC) CAF/1961/2015 and CAF/1962/2015 2 raised an arguable point of law. Although I did not formally limit the scope of the appeal, I indicated when I granted permission to appeal that I was not satisfied that either of the claimant’s present grounds was made out. 5. First, he submitted that the proceedings before the First-tier Tribunal were unfairly conducted because of the number and nature of the questions put to his son. I reject that ground and simply adopt the reasons given by the Chamber President in paragraph 11 of her refusal of permission to appeal for finding that no error of law was raised by that ground. 6. Secondly, he argued that the presiding judge should not have heard his appeals. He had argued in his written submissions to the First-tier Tribunal that he, as a person with a damaged limb, was in a worse and more painful position than a person who had had such a limb amputated. It seems to have become apparent at the hearing that the presiding judge had herself had precisely the same operation as the claimant had been advised to have but it had not been a success and she had had to have the limb amputated. The claimant argues that, because she had had a limb amputated, she would be biased, or appear to be biased, because “she would normally be a 40% disabled person asked to judge somebody who is not an amputee but is asking for a higher award”. That argument is untenable. It might be thought that the judge would have had valuable experience upon which to base her consideration of the claimant’s argument. That might have been favourable to the claimant or it might not: a fair-minded and informed observer, having considered the facts, would not conclude that there was a real possibility of bias merely because the judge had relevant personal experience. 7. However, it is important that, if views are formed in the light of personal experience, the parties are given an opportunity to comment on them. It may well be that that is how it became apparent to the claimant’s representative and son how similar the judge’s experience was to the claimant’s. The claimant says that there are nonetheless some matters mentioned in the reasons for decision that were not mentioned at the hearing and he says that these contradict the opinion of the orthopaedic surgeon who examined him abroad. He refers to the First-tier Tribunal saying that he should swim for exercise whereas the surgeon had said that he could not do physical exercise and to the First-tier Tribunal saying that he could drive an adapted car in 2014, whereas the surgeon said in 2013 that he could not drive. These, the claimant submits, are examples of the judge making assumptions based on her own experience. 8. I do not accept this argument in the circumstances of this case. Firstly, the surgeon’s views and those of the claimant himself were before the First-tier Tribunal, which was not bound by them. (Indeed, the First-tier Tribunal expressed in paragraph 62 of the statement of reasons its general agreement with the surgeon’s reports and its decision did not necessarily involve disagreement it. The surgeon had not specifically commented on the claimant’s ability to swim and, in relation to driving, it was common ground that the claimant had been able to drive an automatic car in 2011 and the surgeon did not refer in his 2013 report specifically to the question whether the claimant could drive a car that was adapted and automatic.) Secondly, the decision was made by all three members of the panel and not just by DS v Secretary of State for Defence (WP) [2016] UKUT 0051 (AAC) CAF/1961/2015 and CAF/1962/2015 3 the presiding judge. One of the members of the panel was a doctor, albeit not an orthopaedic surgeon. Thirdly, it is quite clear both from the panel members’ notes of the hearing and from the statement of reasons itself that both the possibility of the claimant swimming and of him driving an automatic car were raised with the claimant’s son while he was giving evidence in the presence of the claimant’s representative. I accept that the claimant’s son’s ability to answer the questions might not have been as good as the claimant’s but, given that the claimant was not present at the hearing but had addressed the issues in written submissions, the First-tier Tribunal acted perfectly fairly. There was no breach of the rules of natural justice. 9. The claimant plainly disagrees with the First-tier Tribunal’s decisions. As is usual in assessment appeals, there were two broad issues to be considered by the First-tier Tribunal. The first was the question of fact as to what the practical effects of the accepted conditions actually were at the dates of the Secretary of State’s decisions. The second was the question of judgement as to what assessment, expressed in terms of a percentage, was appropriate for the purposes of the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 2006 (SI 2006/606) in the light of the practical disablement from which the claimant suffered at each date and the terms of the Order. The claimant’s disagreement encompasses both elements of the decisions. 10. However, such questions of fact and judgement are very much matters for the Secretary of State and, on appeal, the First-tier Tribunal. An appeal to the Upper Tribunal lies only on a point of law and so, in the absence of an error of law, the Upper Tribunal is not entitled to interfere with the findings of fact and exercise of judgement of the First-tier Tribunal. 11. In relation to the findings of fact as to the extent of the claimant’s practical disablement at each of the material dates, the First-tier Tribunal’s decision is, in my judgement, unassailable. I can see no error of law. The statement of reasons is more than adequate as a document showing that the First-tier Tribunal considered the relevant evidence, made clear findings that it was entitled to make in the light of that evidence and had good reasons for those findings. 12. It was in relation to the fixing of the percentage for the purposes of the 2006 Order that I granted permission to appeal. I said – “4. It seems to me that assessing disablement requires some consideration of the degrees of disablement prescribed in Part V of Schedule 1 to the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 2006 (SI 2006/616), whereas the First-tier Tribunal seems to have concentrated on the extent to which the claimant could manage the activities mentioned in paragraph 63 of the statement of reasons and has not mentioned the Schedule. Obviously, the extent to which the claimant can carry out such activities may be relevant to the assessment of disablement but a profoundly deaf person might be able to drive a car, travel by taxi, hold down employment, go shopping and go swimming and yet would be entitled to an assessment at 100% on the ground of “absolute deafness”. Thus, an DS v Secretary of State for Defence (WP) [2016] UKUT 0051 (AAC) CAF/1961/2015 and CAF/1962/2015 4 assessment at 100% does not require practical total disablement and it is arguable that, notwithstanding its experience, the First-tier Tribunal lost sight of the need to compare the claimant’s disability with those of people with prescribed degrees of disablement. Moreover, as the claimant has submitted, a person with a painful limb may be more disabled, at least in some respects, than a person who had had the limb amputated. 5. Given the history of this case and the relative detail of the First-tier Tribunal’s findings of fact, this may be a case where, if the claimant’s appeal were to be allowed and one or both of the decisions of the First-tier Tribunal were to be set aside, the Upper Tribunal would be able to substitute its own assessment(s) rather than remitting the case(s) to the First-tier Tribunal. It would therefore be helpful if both parties were to suggest what the appropriate degree of disablement is on the basis of those findings or, alternatively, to suggest in what respects the findings are not adequate for the purpose of making an assessment. 6. Both in considering whether the assessments are unreasonably low and in considering, if necessary, what assessment(s) should be substituted, I would be greatly assisted by any guidance or framework that is used by the Secretary of State’s medical advisors when certifying degrees of disablement in the light of findings recorded in an examination report in a case where no degree of disablement is prescribed. I therefore ask the Secretary of State to attach to his response to this appeal any such guidance, framework or similar document that exists.” 13. The appeal is resisted in a short submission on behalf of the Secretary of State, in which it is argued that, because the claimant is not an amputee with an injury within the scope of Part V of Schedule 1 to the 2006 Order, article 42(6) of the Order did not apply and it was unnecessary for the First-tier Tribunal to refer to Part V of the Schedule. It is further submitted that the First-tier Tribunal approached the case correctly in the light of article 42(2) – which I accept it accurately summarised in paragraph 12 of its statement of reasons – and there is appended to the submission a “Medical Comment” by Dr Anne Braidwood CBE, the medical adviser to the Deputy Chief of Defence Staff (Personnel), which is effectively a more detailed submission in support of the First-tier Tribunal’s decision. She, in turn, appends to her Medical Comment a desk aid for medical advisers (MPM200), updated in February 2015, and a report dated March 2015 by the Independent Medical Expert Group (established in 2010 to provide medical and scientific advice on the Armed Forces Compensation Scheme) of which she is a member. No further internal guidance was provided. 14. The claimant has replied to the Secretary of State’s submission and Dr Braidwood’s Medical Comment. In his reply, he said that he had been trying to obtain from the Ministry of Defence a document written by Dr Braidwood that had been before the Administrative Court in Secretary of State for Defence v Rusling [2003] EWHC 1359 (QB). He said that he had been advised that it was not available for the public to see. The relevant documents that were mentioned in paragraph [13] of Rusling are the War Pensions Medical Advisers Instructions and Procedures DS v Secretary of State for Defence (WP) [2016] UKUT 0051 (AAC) CAF/1961/2015 and CAF/1962/2015 5 Manual (2000) and a document known as MPM57A. After some rather odd correspondence in the course of which the Ministry of Defence appears to have said that the Manual was defunct and that it no longer had a copy, despite the fact that it had sent the claimant a hard copy two days earlier, electronic copies of both documents were eventually sent by the Ministry of Defence to the claimant together with an electronic copy of the Veterans Agency Medical Adjudication Guidance. MPM57A is the Veterans Agency Medical Handbook. These documents may now all be found on the Government website. 15. Neither party has drawn those documents to my attention but I have looked at them. Their contents are not terribly surprising, being similar to documents used for years in relation to the similar industrial injuries scheme: see for instance the Handbook for Industrial Injuries Medical Boards (HMSO, 1970), which included suggested assessments for ankyloses, deafness and defective vision that are identical to, or almost identical to, those on the desk aid produced in the present case. The desk aid also includes suggested assessments for psychiatric disorders. The documents that were sent to the claimant and are now on the website were published between 2000 and 2003 and are said to be no longer in use. Presumably there are some current equivalents in addition to the “Synopses of Causation” that are also on the website but I will assume that there is nothing in them that could be of any assistance in the present case. Why the Ministry of Defence considers that these types of documents should not be routinely published in the way that similar guidance to social security decision-makers is published by the Department for Work and Pensions I have no idea. Quite apart from the interests of claimants and their representatives, it does not seem to be in the Ministry’s own interests that the generally coherent background to its decision-making should not be understood by the world at large and, in particular, by tribunals who have to consider the correctness of individual decisions. Public scrutiny might encourage improvement where that is necessary but, for the most part, the guidance that has now been published is uncontroversial and awareness of it is likely to be helpful to all concerned, although I do not need to refer to the documents in detail in this case in the light of Dr Braidwood’s Medical Comment which addresses more directly the facts of this particular case. 16. The facts found by the First-tier Tribunal are set out at paragraphs 48 to 50 of the statement of reasons – “48. The Appellant was 65 years of age at the time of the hearing. He had served in the Army from 18th March 1966 to 3rd November 1969 when he was medically discharged as a consequence of a knee injury. He subsequently worked as a Textile Consultant which involved substantial amount of foreign travel. He stopped work in 2008 when he gave up work due to the problems with his right knee. 49. At the time of the decision in February 2012:  He could walk 200 metres before he needed to stop or suffered severe discomfort;  He sometimes used a stick when walking;  He did not need the assistance of another person to walk; DS v Secretary of State for Defence (WP) [2016] UKUT 0051 (AAC) CAF/1961/2015 and CAF/1962/2015 6  He found going up and down stairs difficult but managed to do this himself with the aid of a stick;  He found it difficult to put on shoes and socks on the right and needed to use a long handled shoe horn or assistance from his family;  He would have been able to drive an adapted automatic car, using his left foot;  He would have been able to carry out a sedentary office job as long as this did not involve significant walking or standing and allowed him the opportunity to move around from time to time;  He would have been able to swim and it is probable that this would have improved the condition of his right knee;  He had taken some anti-inflammatory medication prescribed by his GP but had not had any physiotherapy or hydrotherapy or other treatment and had not been referred to an Orthopaedic specialist;  He could not squat, run, cycle or take part in sport;  The muscle wasting in his right thigh had increased from 2cm in 1998 to 2.5cm in December 2011:  No abnormality was present in his left or right hip, left leg or back in December 2011 and the tone and power in both legs was normal;  The Appellant would have been able to travel around and to go shopping using suitable aids;  He was no longer able to play bowls or to go dancing with his wife and could not play sports, walk the dog or cut the lawn and look after the garden. 50. At the time of the decision on 15th August 2014:  The condition of his right knee had deteriorated with the flexion contracture now being 20 degrees;  He could walk 50 metres before he needed to stop or suffered severe discomfort;  He used a stick when walking;  He did not need the assistance of another person to walk;  He found going up and downstairs difficult but managed to do this himself with the aid of a stick;  He found it difficult to put on shoes and socks on the right and needed to have assistance from his family;  He would have been able to drive an adapted automatic car, using his left foot;  He would have been able to carry out a sedentary office job as long as this did not involve significant walking or standing and allowed him the opportunity to move around from time to time;  He would have been able to swim and it is probable that this would have improved the condition of his right knee;  He had occasionally taken some anti-inflammatory medication and Paracetamol . prescribed by his OP but had not had any physiotherapy or hydrotherapy or other treatment and had not 1 6 DS v Secretary of State for Defence (WP) [2016] UKUT 0051 (AAC) CAF/1961/2015 and CAF/1962/2015 7 been referred to an Orthopaedic specialist, only having seen an Orthopaedic Specialist in connection with the War Pension claims;  He could not squat, run, cycle or take part in sport;  The muscle wasting in his thigh had increased from 2.5cm in December 2011 to 3cm in November 2013;  No abnormality was present in his left or right hip, left leg or back in November 2013 and the tone and power in both legs was normal;  The Appellant would have been able to travel around and to go shopping using suitable aids;  He was no longer able to play bowls or to go dancing with his wife and could not play sports, walk the dog or cut the lawn and look after the garden.” 17. I need not set out all of the First-tier Tribunal’s reasons for making those findings and rejecting the arguments advanced by, and on behalf of, the claimant as to the practical extent of his disablement, but I should set out the last paragraph of those reasons (to which I referred in my Direction above) and also the reasons for rejecting the submission that 40% was too low an assessment – “63. The Tribunal noted the list of functional limitations referred to by the Appellant in his application for permission to appeal in July 2012. The Tribunal did not accept all the functional limitations set out by the Appellant at that time: a) Travelling around — the Tribunal concluded that the Appellant could walk 200 metres as at February 2012 for the reasons stated above. The Appellant: could drive an automatic vehicle in 2011 and would have been able to have an automatic car adapted to allow him to operate the foot pedals with his left leg. The Tribunal therefore considered that he had the ability to drive in February 2012, August 2014 and at the date of the hearing in March 2015. Furthermore the Tribunal noted the evidence from his son that the Appellant could get down the stairs and walk 40 metres to a taxi in February 2012 which would give another way of travelling to different places. In relation to travel to and from the UK and within the UK it would have been possible for the Appellant to arrange assistance when travelling by air and rail. The Tribunal therefore rejected the suggestion that the Appellant could not travel around; b) The Tribunal also considered this to be the case in August 2014 as the Appellant still retained the ability to travel by taxi, could walk 50 metres and in the view of the Tribunal could drive an automatic car; c) Work in a normal job — the Tribunal accepted that the Appellant would have difficulty in carrying out his previous employment. The Tribunal did not, however, consider that office based work would be precluded on the basis of a problem with one knee as long as the Appellant had the ability to get up on occasions and as long as the job did not involve substantial walking. The Tribunal therefore rejected the suggestion that the Appellant was totally precluded from employment in February 2012 or August 2014; d) Going Shopping — the Appellant retained the ability to walk 200 metres DS v Secretary of State for Defence (WP) [2016] UKUT 0051 (AAC) CAF/1961/2015 and CAF/1962/2015 8 with a stick in February 2012, could drive and use a taxi. The Tribunal considered that this would allow him to do some shopping. In addition if a wheelchair or mobility scooter was used for longer distances, this would allow the Appellant to do more extensive shopping. The Tribunal accepted that shopping would be more difficult in August 2014 as the Appellant's walking ability had reduced to 50 metres. The Tribunal, however, still considered that the Appellant would be able to do some limited shopping and more extensive shopping if appropriate aids were used; e) Driving — see comments above. The Tribunal concluded that the Appellant retained the ability to drive an automatic vehicle as there was no medical evidence confirming abnormality in his other leg; f) Swimming — no good reason was given as to why the Appellant would not be able to go swimming, particularly in 2012 when it was suggested that his need for assistance with dressing was much more limited. Indeed the Tribunal considered that swimming was likely to be beneficial for the Appellant as it would allow him to exercise without the need to weight bear. In view of the fact that the Appellant reported assistance with putting on socks and shoes in August 2014 the Tribunal considered it probable that he would have needed accompanying to go swimming by that date. The Tribunal, however, considered that it would still be beneficial to the Appellant to go swimming and that he retained the ability to exercise in water; the Tribunal considered the suggestion from the Appellant's son that he might drown to be without foundation; g) Socialising — the Tribunal accepted that the Appellant would not be able to take his wife dancing or to play sport as he did before. They did not, however, accept that this would prevent the Appellant socialising in February 2012 or August 2014 [in] view of their conclusions above about his ability to drive/ take a taxi. 64. Taking into account all the matters set out above the Tribunal considered that it was appropriate to increase the assessment from 20% in February 2012. They considered that 40% was a generous assessment but not outside the range of what would be a reasonable award. They therefore did not consider that there were grounds to reduce this assessment. For the reasons stated above they were not persuaded that an assessment of more than 40% was reasonable. 65. The Tribunal did take account of the fact that the Appellant's condition had deteriorated by August 2014 with slightly more restricted movement and a reduced walking ability. They did not, however accept that this greatly increased the functional limitations of the Appellant and noted that he continued to receive minimal treatment for his knee with less medication apparently being taken in November 2013 than in December 2011. Taking into account the points set out above they did not consider that the deterioration was sufficient to increase the assessment to 50%. They therefore concluded that a long term assessment of 40% remained reasonable.” DS v Secretary of State for Defence (WP) [2016] UKUT 0051 (AAC) CAF/1961/2015 and CAF/1962/2015 9 18. The statutory provisions relating to the assessment of disablement are to be found in article 42 of, and Schedule 1 to, the 2006 Order. So far as is material, article 42 provides – “42.—(1) The following provisions of this article shall apply for the purposes of the assessment of the degree of the disablement of a member of the armed forces due to service before 6th April 2005. (2) Subject to the following provisions of this article— (a) the degree of the disablement due to service of a member of the armed forces shall be assessed by making a comparison between the condition of the member as so disabled and the condition of a normal healthy person of the same age and sex, without taking into account the earning capacity of the member in his disabled condition in his own or any other specific trade or occupation, and without taking into account the effect of any individual factors or extraneous circumstances; (b) for the purpose of assessing the degree of disablement due to an injury which existed before or arose during service and has been and remains aggravated thereby— (i) in assessing the degree of disablement existing at the date of the termination of the service of the member, account shall be taken of the total disablement due to that injury and existing at that date, and (ii) in assessing the degree of disablement existing at any date subsequent to the date of the termination of his service, any increase in the degree of disablement which has occurred since the said date of termination shall only be taken into account in so far as that increase is due to the aggravation by service of that injury; (c) where such disablement is due to more than one injury, a composite assessment of the degree of disablement shall be made by reference to the combined effect of all such injuries; (d) the degree of disablement shall be assessed on an interim basis unless the member's condition permits a final assessment of the extent, if any, of that disablement. … (5) The degree of disablement assessed under the foregoing provisions of this article shall be certified by way of a percentage, total disablement being represented by 100 per cent (which shall be the maximum assessment) and a lesser degree being represented by such percentage as bears to 100 per cent the same proportion as the lesser degree of disablement bears to total disablement, so however that a degree of disablement of 20 per cent or more shall be certified at a percentage which is a multiple of 10, and a degree of disablement which is less than 20 per cent shall, except in a case to which Table 1 of Part III of Schedule 1 applies, be certified in a manner suitable for the purposes of Table 2 of Part III of that Schedule. (6) Where a disablement is due to an injury specified in Part V of Schedule 1 or is a disablement so specified, and, in either case, has reached a settled condition, the degree of that disablement shall, in the absence of any special DS v Secretary of State for Defence (WP) [2016] UKUT 0051 (AAC) CAF/1961/2015 and CAF/1962/2015 10 features, be certified for the purposes of this article at the percentage specified in that Part as appropriate to that injury or to that disablement. … (14) The degree of disablement certified under this article shall be the degree of disablement for the purposes of any award made under this Order.” 19. Part V of Schedule 1 is in the form of a table. DS v Secretary of State for Defence (WP) [2016] UKUT 0051 (AAC) CAF/1961/2015 and CAF/1962/2015 11 PART V ASSESSMENT OF DISABLEMENT CAUSED BY SPECIFIED INJURIES AND OF CERTAIN OTHER DISABLEMENTS Description of Injury Assessment Amputation Cases – Upper Limbs per cent Loss of both hands or amputation at higher sites 100 Forequarter amputation 100 Amputation through shoulder joint 90 Amputation below shoulder with stump less than 20.5 centimetres from tip of acromion 80 Amputation from 20.5 centimetres from tip of acromion to less than 11.5 centimetres below tip of olecranon 70 Amputation from 11.5 centimetres below tip of olecranon 60 Loss of thumb 30 Loss of thumb and its metacarpal bone 40 Loss of 4 fingers 50 Loss of 3 fingers 30 Loss of 2 fingers 20 Loss of terminal phalanx of thumb 20 Amputation Cases – Lower Limbs per cent Double amputation through thigh, or through thigh on one side and loss of other foot, or double amputation below thigh to 13 centimetres below knee 100 Double amputation through leg lower than 13 centimetres below knee 100 Amputation of one leg lower than 13 centimetres below knee and loss of other foot 100 Amputation of both feet resulting in endbearing stumps 90 Amputation through both feet proximal to the metatarso-phalangeal joint 80 Loss of all toes of both feet through the metatarso-phalangeal joint 40 Loss of all toes of both feet proximal interphalangeal joint 30 Loss of all toes of both feet distal to the 20 DS v Secretary of State for Defence (WP) [2016] UKUT 0051 (AAC) CAF/1961/2015 and CAF/1962/2015 12 proximal interphalangeal joint Hindquarter amputation 100 Amputation through hip joint 90 Amputation below hip with stump not exceeding 13 centimetres in length measured from tip of great trochanter 80 Amputation below hip and above knee with stump exceeding 13 centimetres in length measured from tip of great trochanter, or at knee not resulting in end-bearing stump 70 Amputation at knee resulting in end-bearing stump, or below knee with stump not exceeding 9 centimetres 60 Amputation below knee with stump exceeding 9 centimetres but not exceeding 13 centimetres 50 Amputation below knee with stump exceeding 13 centimetres 40 Amputation of one foot resulting in end-bearing stump 30 Amputation through one foot proximal to the metatarso-phalangeal joint 30 Loss of all toes of one foot proximal to the proximal interphalangeal joint, including amputations through the metatarso-phalangeal joint. 20 Other Specific Injuries per cent Loss of a hand and a foot 100 Loss of one eye, without complications, the other being normal 40 Loss of vision of one eye, without complications or disfigurement of the eyeball, the other being normal 30 Loss of sight 100 Other Disablements per cent Very severe facial disfigurement 100 Absolute deafness 100 Mesothelioma 100 ------------------------------------------------------------------------------------------------------ Note:– Where the scheduled assessment for a specified injury involving multiple losses differs from the sum of the assessments for the separate injuries, the former is the appropriate assessment. _____________________________________________________________________________________ 20. In her Medical Comment, Dr Braidwood explains how the legislation is applied by the Secretary of State. So far as is material, she says – DS v Secretary of State for Defence (WP) [2016] UKUT 0051 (AAC) CAF/1961/2015 and CAF/1962/2015 13 “3. The purpose of assessment in war pensions is to provide equitable and consistent outcomes in terms of compensation awards made and reflecting the very broad spectrum of injuries, including wounds and diseases, which the War Pensions Scheme is able to consider and accept. There is also a need in a public no fault jurisdiction to maintain vertical and horizontal equity. By vertical equity we mean that for a category such as hearing loss more severely disabling disorders will attract higher awards and similarly for horizontal equity disablements affecting the different body systems with very different disabling effects are treated equitably. … 6. The war pensions legislation also includes a list of statutory scheduled assessments (SSA). These are important for their own sake and must apply where a claimed disablement and underlying injury precisely meet the description. They are also important in acting as sign posts for all other assessments in the Scheme. These features reflect the antiquity of the Scheme and its early focus on combat related trauma. The statutory scheduled assessments were reviewed by the Hancock Committee in 1947 and the McCorquodale Committee in 1966. On both occasions they were found to be sound. 7. The medically certified level of assessment does not have a medical purpose in the sense of informing the need or extent of rehabilitation etc. but is a surrogate measure for award to be paid. The maximum assessment is 100% and this may derive from multiple accepted conditions where a combined assessment will be certified or from a single condition e.g. loss of sight. The clinical picture and disabling effects of 100% disabled pensioners are therefore very variable and at the individual level an assessment of 100% simply implies that as a result of accepted disorder/s the person meets the minimum disablement to attract the maximum award. 8. War pensions assessment is not an exact science, tightly regulated or rules based and there is no text book. It includes a large measure of judgment. To meet this, prior to joining, war pension medical advisers must have a proven clinical record and relevant experience. This enables them to be familiar with a range of disorders, their disabling effects and the likely average as well as range of pain and suffering associated with disorders. In line with the requirement not to take into account "...individual factors or extraneous circumstances", it is policy to assume that the claimant will seek appropriate diagnosis, investigation and treatment for disorders. This of course is subject to restriction on account of age or other non-attributable disablement which make operation hazardous or otherwise clinically inadvisable. While there is some flexibility, assessments cannot be certified based solely on claimant history. As far as possible the certifying doctor should seek other objectively verifiable evidence which supports the claimant's history i.e. is consistent with it and can take account of evidence which suggests either under-reporting or exaggeration, both of DS v Secretary of State for Defence (WP) [2016] UKUT 0051 (AAC) CAF/1961/2015 and CAF/1962/2015 14 which occur.” (My emphases.) 21. I do not consider that there is anything controversial in that analysis. It appears to be consistent with what Judge Jacobs said in CT v Secretary of State for Defence [2009] UKUT 167 (AAC) and what I said in AM v Secretary of State for Defence (WP) [2013] UKUT 97 (AAC). In any event, I agree with it. In particular, the sentences in paragraphs 3, 6 and 7 that I have emphasised explain why Part V of Schedule 1 was relevant in the present case, notwithstanding that the claimant had not incurred an injury mentioned in the Schedule and notwithstanding the lack of any express provision requiring regard to be had to the Schedule in such cases. There is such an express provision in the similar industrial injuries scheme (see regulation 11(8) of the Social Security (General Benefit) Regulations 1982 (SI 1982/1408)) but the lack of an equivalent provision in article 42 of the 2006 Order cannot reasonably be considered significant because it is inconceivable that the draftsman of the Order had in mind that there should not be the sort of horizontal equity described by Dr Braidwood. Such horizontal equity cannot be achieved other than by having regard to the Schedule in cases to which the Schedule does not actually apply, as Dr Braidwood recognises in paragraph 6 of her Medical Comment when she refers to using the assessments in the Schedule as “sign posts for all other assessments in the Scheme”. This is particularly important in light of the point that Dr Braidwood correctly makes in paragraph 7 of her Medical Comment that, notwithstanding the use of the phrase “total disablement” in article 42(5), it is clear from the Schedule that total disablement is not in fact required for an assessment of 100%. Horizontal equity requires that also to be borne in mind in cases where the Schedule does not apply. It follows that there is a risk of under-assessing a claimant if too much weight is placed on what the claimant can do, rather than on what he or she cannot do. This is the point I was making in paragraph 4 of my observations when granting permission to appeal. 22. So, did the First-tier Tribunal make that error in the present case? 23. Although it was bound to have regard to the Schedule in general terms, it did not necessarily err in law in not expressly referring to it. The assessment of disablement under the 2006 Order is an issue that arises in a significant proportion of cases before the War Pensions and Armed Forces Compensation Chamber of the First-tier Tribunal and it would be unrealistic to think that any judge or member of that Chamber would be ignorant of the Schedule. It might be slightly less unrealistic to think that they sometimes fail to appreciate all its implications, particularly as decisions on assessments of disablement seldom, if ever, contain much in the way of legal reasoning and the Secretary of State’s submissions in support of his assessments are usually equally devoid of legal reasoning. Dr Braidwood says – “9. In addition to the legislation, a desk aid (attached at Annex 1) is provided to war pensions medical advisers setting out the Statutory Scheduled Assessments (SSA) as well as assessment methods for visual acuity and noise induced hearing loss. Training involves supervised case consideration, discussion and mentoring by the Medical Training Officer as DS v Secretary of State for Defence (WP) [2016] UKUT 0051 (AAC) CAF/1961/2015 and CAF/1962/2015 15 well as monthly case discussion and group sessions where topics such as difficult cases and categories of case, recent UTT decisions are discussed with the medical advisers as a group.” Unfortunately, the learning and experience that lies behind assessments is not always conveyed to the claimant or the First-tier Tribunal through reasons for assessments, submissions in support of assessments, or, hitherto, the publication of guidance. 24. However, the First-tier Tribunal has its own expertise and the Upper Tribunal should be slow to interfere with its assessments provided it has made clear findings of fact and its decisions do not appear to be aberrant or its reasoning to suggest that it has misapplied the law. As Judge Jacobs said in CT when considering the adequacy of reasoning in an assessment case, “[i]n some cases, the facts will speak for themselves and it will not be necessary as a matter of law to say more”. That may in practice be true in most assessment cases, unless some specific argument about the appropriate assessment has been advanced and ought to have been addressed by the First-tier Tribunal. In this case, I do not consider that further reasoning was required. 25. Apart from arguing that he was more disabled than the First-tier Tribunal found him to be, the claimant’s principal argument in respect of the assessment was to the effect that a person with a painful limb is more disabled than a person who has had an amputation and does not suffer pain and is entitled to an assessment of 40%. It seems to me to be obvious that whether that is so or not depends on the circumstances of the particular cases and in particular the amount of pain from which either person suffers and the extent to which the person who has not had the amputation still has useful function in the limb. In this case, the claimant did still have some useful function in his right leg and could walk to the extent found by the First-tier Tribunal. I accept that some people who had had a leg partially amputated might, with a prosthesis, have been able to walk further and with less pain, but the complete loss of part of a limb and a need to wear a prosthesis cannot be regarded as negligible considerations. There is no general rule such as the claimant suggests. 26. Dr Braidwood submits that the assessments at 40% were reasonable in this case. She says – 15. Osteoarthritis (OA) knee is a common chronic disabling condition which may arise secondarily to injury or operative treatment including removal of menisci. This is especially at the dates relevant here where the less disruptive arthroscopic surgery was not yet established. OA is also found in a proportion of the UK population increasing with age and without any obvious trigger. There may be family history or perhaps exposure to heavy manual work over a lifetime. There is no direct relation between symptoms reported and radiographic appearance or joint damage and the disorder is usually investigated to confirm pathology and best practice management e.g. weight reduction, physiotherapy and maintenance of mobility as well as pain killers and anti-inflammatory drugs taken chronically. In time operative intervention, DS v Secretary of State for Defence (WP) [2016] UKUT 0051 (AAC) CAF/1961/2015 and CAF/1962/2015 16 notably partial or total knee replacement is the operation of choice. Advances in anaesthesiology and operative technique mean the operations are associated with high success rates, especially of pain reduction and increase in function. In the context of war pensions where the claimant has wide gateways to review the Secretary of State can also review and 18 months to two years post surgery the level of disablement is likely to have reduced. 16. Given the SSA and the fact that a below knee amputation is assessed at 40%, medical advisers commonly certify this level of disablement for the more severe levels of arthritis with mobility restriction and at a stage where clinically operative intervention would take place. An assessment above that level may be certified unusually, where operative treatment has been unsuccessful or given rise to complications e.g. infection. In most such cases entitlement will be extended to cover the unexpected occurrence. We note [the claimant’s] comments re amputation we are not able to agree that, especially as a person ages, the functional and symptomatic outcome is necessarily as he describes. We attach a copy of the Third IMEG Report March 2015 which looked at the evidence on the progress and consequences of amputations over time. This includes disabling pain of various types and origin as well as increased cardiovascular risk. 27. That the claimant may underestimate the frequency with which amputees suffer pain, as Dr Braidwood submits by reference to the IMEG report, does not seem to me to undermine his argument. The assessment of disablement of those suffering injuries specified in Part V of Schedule 1 is not completely inflexible, because article 42(6) permits a departure if there is a “special feature” and in any event applies the Schedule only if “disablement … has reached a settled condition”. In consequence, paragraph 225 of the Handbook stated that “When there are complications such as infection or pain the prescribed assessments no longer apply.” A higher assessment would apply instead. Thus, the claimant is entitled to argue that the correct comparator for an assessment of 40% is the person with a below-knee amputation and without significant disabling pain. 28. However, it does not follow that a person in his position whose mobility is impaired by pain is entitled to a higher assessment. Since it is pain that restricts his mobility, the fact that he suffered from pain was obviously accepted and factored in to the assessments of the First-tier Tribunal and Dr Braidwood’s arguments. 29. Some important guidance can be obtained from other provisions in the 2006 Order. Thus, it is the implication of article 20(1)(b)(ii) and (iii), relating to the mobility supplement, that a person with an injury “restricting his leg movements to such an extent that his ability to walk (with any prosthesis or artificial aid) without severe discomfort is of little or no practical use to him” or “restricting by physical pain or breathlessness his ability to walk to such an extent that it is of little or no practical use to him” might have his or her disablement assessed at only 40%, because that is the threshold for entitlement to the mobility supplement. Less compellingly perhaps, it may also be noted that the threshold for unemployability allowance under article 12 is now an assessment of disablement of 60% – except for those with transitional DS v Secretary of State for Defence (WP) [2016] UKUT 0051 (AAC) CAF/1961/2015 and CAF/1962/2015 17 protection – and the claimant was found by the First-tier Tribunal not to have been unemployable in either 2012 or 2014. 30. Ultimately, I am not persuaded that the assessments of 40% in this case were aberrant so as to justify inferring that the First-tier Tribunal misdirected itself as to the law. Dr Braidwood’s submission as to the appropriate assessment is made against the background of both her considerable practical experience and a correct understanding of the law and it does not appear to me to be unreasonable. That is not to say that the First-tier Tribunal could not have made a higher assessment, particularly in the appeal from the 2014 assessment. However, it considered whether the deterioration in the claimant’s condition between 2012 and 2014 justified increasing the assessment and it gave a rational reason for maintaining it at 40%. 31. Nor do I consider that the First-tier Tribunal’s reasoning in this case suggests that it misapplied the law. When it referred in paragraph 64 of its decision to “all the matters set out above”, it was clearly referring to its findings of fact and all its other reasoning from paragraph 48 onwards and not just to what it had said in paragraph 63. Although in its findings and in paragraph 63 it referred to a large number of activities that the claimant could carry out as well as those he could not, that was a necessary part of its reasoning in this case because the claimant had relied on not being able to carry out the activities mentioned in that paragraph as supporting his argument for a higher assessment. The fact that the First-tier Tribunal did not accept that the claimant’s life was curtailed to the extent he claimed was therefore an important reasons for rejecting his argument that he was entitled to an assessment of 60%. In the context of this case, that does not suggest that the First-tier Tribunal forgot that actual total disablement is not required for an assessment of 100%. This is supported by the fact that the assessment does not appear aberrant. 32. Accordingly, I am satisfied that the First-tier Tribunal did not err in law in this case. The reason that it rejected the claimant’s submission that he was entitled to an assessment of 60% was essentially because it did not accept that he was as disabled as he said he was. That was a finding of fact it was entitled to make and with which, in the absence of any error of law, the Upper Tribunal has no power to interfere. These appeals must therefore be dismissed. Mark Rowland 29 January 2016

LP v Secretary of State for Defence (AFCS) [2016] UKUT 0099 (AAC) CAF/1913/2015 1 IN THE UPPER TRIBUNAL Case No. CAF/1913/2015 ADMINISTRATIVE APPEALS CHAMBER Before Upper Tribunal Judge Rowland Decision: The claimant’s appeal is allowed. The decision of the First-tier Tribunal dated 24 September 2014 is set aside and the case is remitted to a differentlyconstituted panel of the First-tier Tribunal to be re-decided. REASONS FOR DECISION 1. This is an appeal, brought by the claimant with my permission, against a decision of the First-tier Tribunal dated 24 September 2014 whereby it dismissed the claimant’s appeal against a decision of the Secretary of State, dated 18 October 2012 and notified to the claimant on the next day, to the effect that the claimant was not entitled to a payment under the Armed Forces Compensation Scheme because the injury to his left shoulder in respect of which he had claimed was not caused wholly or predominantly by service. 2. The injury had occurred in April 2010 while the claimant, who had only recently enlisted in the Royal Marines, was climbing a rope in a gym. In essence, the First-tier Tribunal agreed with the Secretary of State, finding that “there was a pre-existing weakness to the Appellant’s left shoulder and that it was this preexisting weakness that was the predominant cause of his subsequent dislocation”. 3. The claimant sought leave to appeal on the ground that the service member of the First-tier Tribunal had questioned him in an unjust way. His representative from the Royal British Legion also described the questioning as “hostile” and “presented in an accusatory manner”. The First-tier Tribunal refused permission to appeal on the ground that, even if the questioning was improper, it had not resulted in any disadvantage to the claimant because the First-tier Tribunal did not make any adverse findings as regards his oral evidence. 4. When the claimant renewed his application to the Upper Tribunal, I granted permission on a different ground, saying – “I doubt that the allegation as to the manner of the questioning by a member of the First-tier Tribunal demonstrates an error of law. Even if the manner of the questioning can be criticised, it does not currently seem to me that the evidence is sufficient to show bias or other unfairness such as might undermine the First-tier Tribunal’s finding that the claimant had been suffering from a relevant pre-existing condition in the form of an atraumatic structural instability of the left shoulder joint. However, it is strongly arguable that the First-tier Tribunal erred in law in failing adequately to explain why it considered that the claimant had not suffered an injury that was predominantly caused by service. Its finding that he had a pre-existing condition is arguably not a sufficient explanation, given that the First-tier Tribunal appears to have accepted that he suffered a specific injury, a dislocation of the shoulder, while in service. The approach to the “predominant cause” test in cases LP v Secretary of State for Defence (AFCS) [2016] UKUT 0099 (AAC) CAF/1913/2015 2 where there is a pre-existing condition was recently considered, admittedly as obiter dicta, in JM v Secretary of State for Defence (AFCS) [2015] UKUT 332 (AAC) at [127] to [138]. Correctly identifying the injury actually caused most immediately by service may be important. Thus, it is arguable that, if a person has a pre-existing shoulder joint instability, he or she might not be eligible for a payment based on, say, item 17 or 59 of Table 8 in Schedule 3 to the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011 (SI 2011/517) but, even if that is so, it does not follow that he or she might not be eligible for an award in respect of a dislocation or subluxation or other injury of the shoulder that arises out of the instability but is more immediately caused by strain suffered on, say, a military exercise and that falls within the scope of, say, item 41 of Table 8 or perhaps an item in Table 9. Moreover, there might be a question whether there had been worsening of the preexisting condition within the scope of article 9. Thus, in this case, the First-tier Tribunal arguably should have asked itself whether the claimant had suffered any disablement from which he would not have suffered but for a service cause and, if so, whether that disablement was attributable to an injury, or the worsening of an injury, described in Schedule 3.” 5. The Secretary of State broadly agrees that the appeal should be allowed on the ground that I identified, although his representative quite rightly points out that, as the claimant is still a serving member of the Armed Forces, no question of a payment under article 9 of the Scheme in respect of worsening arises. (The injury also occurred within six months of his enlistment, which is another reason why an argument under article 9 could not get off the ground.) The claimant is content for the case to be decided on that basis. 6. In JM, the three-judge panel considered the old case of Marshall v Minister of Pensions [1948] 1 KB 106, in which under the claimant sustained a hernia, the immediate cause of which was coughing resulting from the conditions in which he had served. It was held that the claimant was entitled to a war disablement pension under the scheme then in existence notwithstanding that an underlying weakness in the claimant’s abdominal wall might have been the predominant cause of the hernia. The three-judge panel considered that the Armed Forces Compensation Scheme required a different approach to predominancy, saying – “133. We acknowledge that, in exercising the judgment between process causes that have been categorised into service and non-service causes of the injury, a literal approach to the language of the test in the 2005 and 2011 Orders could, in an equivalent case to Marshall, found the view expressed by Denning J with the result that the claimant would not get an award because the predominant cause of the injury was the constitutional weakness and the cough was a lesser cause. 134. But in our view the width of the language permits a more sophisticated approach to deciding whether, as the Secretary of State put it, conceptually the service cause contributes more than one half of the causative stimulus for the injury claimed, and thus whether service is the predominant cause in a case where (after the categorisation process) the only competing causes are service and constitutional or other pre-existing weaknesses. In such a case the decision maker generally should firstly consider whether, without the ‘service cause’, the injury would: have occurred at all, or LP v Secretary of State for Defence (AFCS) [2016] UKUT 0099 (AAC) CAF/1913/2015 3 have been less than half as serious. 135. If the answer to the first question is that the injury would not have occurred at all in the absence of the service cause, we consider that this can and generally should found a conclusion that the service cause is the predominant cause of the relevant injury. It seems likely that a claimant in Mr Marshall’s position would succeed on this basis. 136. If however that is not the answer to the first question, the second question will generally found the answer to whether the service cause is the predominant cause of the relevant injury. Thus the second question is likely to be determinative in the present case if it is found that the claimant’s depression was caused both by service and by pre-existing domestic factors. 137. We consider that this approach fits with and promotes the underlying intention of the AFCS to pay compensation for an injury that has more than one process cause that under the categorisation exercise we have described fall to be taken into account as respectively service and non-service causes. 138. We repeat that this is not intended to be prescriptive guidance and that it may need to be modified or abandoned in some cases. For example, we acknowledge that timing issues could cause complications that warrant a departure from it.” 7. I consider that that the Secretary of State is right to concede that the First-tier Tribunal has not recorded adequate reasoning for its finding that the claimant had not suffered an injury the predominant cause of which was service. However, it is understandable that the First-tier Tribunal should have erred, both because its decision was made before that of the three-judge panel and because the claimant’s case had been largely directed at arguing that he did not have any relevant preexisting condition. The result was that the First-tier Tribunal concentrated on giving reasons for finding that there was a relevant pre-existing condition and then did not adequately address the question which of the pre-existing condition and service had predominantly caused the condition in respect of which the claimant had made his claim, which required some analysis of both the nature of that injury and its immediate cause. In any event, the First-tier Tribunal’s decision is erroneous in point of law. 8. Accordingly, I allow the claimant’s appeal and remit the case to the First-tier Tribunal, as both parties have suggested that I should. All issues will be at large again before the First-tier Tribunal. The First-tier Tribunal may wish to direct the Secretary of State to make a further written submission to it in the light of JM and my observations above. Mark Rowland 22 February 2016