Upper Tribunal (Administrative Appeals Chamber) decisions
The HM Courts & Tribunals Service's page Administrative appeals tribunal decisions (category, "War pensions and armed forces compensation") states that between 2016-July 2025, there were 48 Upper Tribunal (UT) decisions related to War Pensions and Armed Forces Compensation Chamber decisions.
Below are those 48 cases, their summaries (where provided and as written by HM Courts & Tribunal Service) and links to download the full decisions. The page can be searched through the search box on the right.
Our current aim is to help people identify particular words in cases (e.g. "PTSD" or "paralysis"). In time, we hope to provide legal analysis on key cases.
We've been informed that at least one WPS UT case wasn't included in the above website. We've added that case below (see CSAF/3/2019) and are investigating other UT decisions that may be missing.
2016-2025 Upper Tribunal decisions
Case:
Judicial Summary:
Decision date:
Judge:
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Case: WJ v Secretary of State for Defence (WP): [2025] UKUT 215 (AAC), UA-2024-SCO-000019-WP
Judicial Summary: The PATS’s (Pension Appeals Tribunal Scotland’s) decision on the evidence before it that Gulf War Illness (also known as Gulf War Syndrome) is not a physical injury/an organic disease was not in error of law.
Decision date: 25 June 2025
Judge: Wright
Tags: War Pension, PAT, Scotland, Gulf War Illness, Gulf War Syndrome, Royal Fleet Auxiliary, 1991 Gulf War, FTT issues of fact vs UTT error of law jurisdiction
Case: CRP v Secretary of State for Defence (AFCS): [2025] UKUT 140 (AAC), UA-2023-001520-AFCS
Judicial Summary: The Upper Tribunal rejects the Secretary of State for Defence’s argument that the interpretation of item 2 of Table 9, in Schedule 3 to the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011, given by the Upper Tribunal in MD v Secretary of State for Defence (AFCS) [2015] UKUT 0298 (AAC), should not be followed. MD’s interpretation was not objectionable due to unfairness nor was it liable to lead to absurd consequences. However, the appeal succeeded because the First-tier Tribunal failed to give adequate reasons for its decision. The Tribunal should have explained why it found that osteoarthritis was not a qualifying injury under item 2, as interpreted in MD.
Decision date: 24 April 2025
Judge: Mitchell
Tags: AFCS, FTT error of law, arthritis, osteoarthritis, arthrodesis
Case: MJU -v- Secretary of State for Defence (AFCS): [2025] UKUT 033 (AAC), UA-2024-001243-AFCS
Judicial Summary: The First-tier Tribunal erred in law in failing to give adequate reasons for rejecting the appellant’s case that he had been “ordered” to have the dental treatment that had been one of the causes of his myofascial/atypical facial pain. A conclusion that the appellant had not been given an enforceable order to have the treatment would in any event not be sufficient to determine whether the appellant’s consenting to the treatment was ‘caused by service’ or not for the purposes of Article 8 of the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011 (SI 2011/517) (“the AFCS Order”). The assessment of whether or not something is ‘caused by service’ is more nuanced than simply whether the thing that causes the injury is a result of someone following an enforceable order or not. In this case, it required, first, adequate findings of fact to be made about what happened between the appellant and his officer in advance of that appointment. Secondly, taking full account of the guidance in JM v Secretary of State for Defence (AFCS) [2015] UKUT 332 (AAC), [2016] AACR 3, the Tribunal needed to consider whether or not the appellant’s consenting to undergo the treatment in the light of whatever happened between him and his officer was “caused by service”.
The Tribunal also erred in law in perversely concluding that there was “no evidence” that the stress that had contributed to the appellant’s pain was work-related. There was ample evidence in principle as to that causal link. The Tribunal needed to consider that evidence and provide adequate reasons for the conclusions it reached on the issue in the light of the evidence. The Tribunal would need when making that assessment at the remitted hearing to apply the guidance in JM that the AFCS Order provides for a no-fault scheme and there is no “thin skull” exclusionary rule, so that stress may be “caused by service” even if there has been no breach of duty by the forces or the injury is not one that would be suffered by someone of ordinary fortitude.
Decision date: 29 January 2025
Judge: Stout
Tags: AFCS, FTT error of law, evidence, caused by service
Case: AK v The Secretary of State for Defence: [2025] UKUT 032 (AAC), UA-2023-001282-AFCS
Judicial Summary: AK was a soldier with autism. He claimed compensation for mental health problems that he said were caused by his experiences serving in the British Army.
While it found that AK had been subjected to “inappropriate”, unprofessional” and offensive” behaviour from colleagues that had caused him stress, the First-tier Tribunal decided that AK’s autism was the predominant cause of his mental health problems, rather than the treatment to which he was subjected.
AK’s appeal was allowed. The Tribunal had erred in its approach to assessing causation.
It may be that AK was particularly sensitive to anxiety and stress, and it may be that this was because of his autism. It may be that he experienced as persecution incidents that others might have interpreted as “horseplay”. However, for the purposes of the Armed Forces Compensation Scheme, the “thin skull” approach means AK shouldn’t be denied compensation just because another soldier, who did not have autism and who experienced the same events as AK, might not have developed the same mental health condition or symptoms that he did, or experienced the same intensity of degree.
Decision date: 28 January 2025
Judge: Church
Tags: AFCS, autism, mental health, FTT error of law, anxiety, depression
Case: MW -v- Secretary of State for Defence: [2025] UKUT 037 (AAC), UA-2024-SCO-000007-AFCS
Judicial Summary: The Appellant, who suffered from PTSD as a result of his service in the RAF, made a claim for compensation under the Armed Forces Compensation Scheme (AFCS). The Secretary of State made an award at Table 3, Item 3, Level 10. This was confirmed on appeal by the Pensions Appeal Tribunal for Scotland (PAT(S)). The Appellant appealed to the Upper Tribunal, arguing that the award should be at least at Table 3, Item 2, Level 8. The Upper Tribunal dismissed the further appeal, finding that the PAT(S) had correctly interpreted and applied the test for assessing whether a mental disorder was “permanent” for the purposes of the Table 3 descriptors.
Decision date: 31 January 2025
Judge: Wikeley
Tags: AFCS, PTSD, PAT, Scotland
Case: Secretary of State for Defence v HM: [2024] UKUT 395 (AAC)
Judicial Summary: This decision considers the proper interpretation of, and approach to, Article 11 of the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011.
In particular, it considers:
- when Article 11 must be considered by a tribunal
- where an injury was sustained or worsened by participation in sporting activity, what is required to fall within the exceptions in Article 11(6) to the exclusion of benefit in Article 11(5)
It decides that the sport of rugby has been “approved” by the Defence Council for the purposes of Article 11(6)(a) but subject to conditions, including that involvement in civilian rugby is at the participant’s own risk and must be done in the participant’s own time. Therefore, while participation in civilian rugby is not prohibited, the Defence Council’s approval of the sport of rugby for the purposes of Article 11(6)(a) of the AFCS Order does not extend to civilian (including civilian charity) rugby.
It decides that the requirement in Article 11(6)(a) that a sporting event and the organisation and training for it be “recognised” by the relevant Service prior to the event requires more than simply an acknowledgement of the awareness by someone in the chain of command that the event will occur and may require training, and that clinical advice on injury management given by a medical officer in the course of medical appointments is incapable of amounting to recognition by the Service for the purposes of Article 11(6)(a).
It decides that while a one-off civilian charity rugby match may provide some benefit in terms of maintaining physical fitness, such a benefit is merely incidental: its purpose is to raise funds for charity and to raise the charity’s profile, rather than to meet or maintain physical standards required of members of the forces, and it does not satisfy the requirements for the exception in Article 11(6)(b) to apply. SM v SSD [2018] AACR 4 followed.
Decision date: 3 December 2024
Tags:
Full decision - Secretary of State for Defence v HM: [2024] UKUT 395 (AAC)
Case: MH v Secretary of State for Defence (WP) : [2024] UKUT 241 (AAC), UA-2023-001356-WP, UA-2023-001353-WP
Judicial Summary:
War Pensions – interim assessment of disablement decision and removal of war pensions mobility supplement (WPMS) decision - the Upper Tribunal holds that the FTT erred in law (in the first appeal before it) in reducing an assessment of disablement from 60% to 40% on an appeal by the armed services member when it was no part of the service member’s or the Secretary of State’s case on the appeal that a lower assessment was merited – section 5B(a) of the Pensions Appeal Tribunals Act 1943 considered and when an issue arises on the appeal - the Upper Tribunal further holds that the FTT erred in law (in the second appeal before it) by not identifying and applying the correct ground for revision under Article 44 of the Service Pensions Order 2006 of a decision that had awarded the appellant the WPMS
Decision date: 7 August 2024
Tags: war pension, interim assessment
Case: DN v Secretary of State for Defence: [2024] UKUT 238 (AAC), UA-2023-000969-AFCS
Judicial Summary:
Armed Forces Compensation Scheme - first First-tier Tribunal (FTT) decides that appellant has hearing loss which was caused by service. In deciding that the appellant has hearing loss, first FTT relies on medical report, the contents of which indicate hearing loss that would qualify for a tariff award. First FTT not deciding extending of hearing loss (i.e., level, if any, of tariff award). Second FTT in deciding the extent of the appellant’s hearing loss finds it is less than any qualifying level and so, in effect, disagrees with the report the first FTT had found the most reliable. The issue on the appellant’s further appeal to the Upper Tribunal was whether the second FTT could lawfully decide the appeal in a way that found the report before the first FTT was not reliable. Whether relitigating a finding of fact or issue which had already been decided. Consideration of the application of the guidance in BK Afghanistan [2019] EWCA Civ 1358 and related case law. Appeal dismissed. Second FTT was not bound or not otherwise unable to depart from the report before the first FTT.
Decision date: 31 July 2024
Tags: AFCS, hearing loss
Full decision - DN v Secretary of State for Defence: [2024] UKUT 238 (AAC), UA-2023-000969-AFCS
Case: JH v Secretary of State for Defence (Armed Forces Compensation Scheme): [2024] UKUT 191 (AAC), UA-2023-000866-AFCS
Judicial Summary: Appellant made claim under Armed Forces Compensation Scheme (AFCS) for Post Traumatic Stress Disorder (PTSD) - Whether “permanent mental disorder” for purposes of AFCS Order 2011 Table 3
Decision date: 1 July 2024
Tags: AFCS, PTSD
Case: NC (dec'd) by JC v Secretary of State for Defence (Armed Forces Compensation Scheme): [2024] UKUT 170 (AAC), UA-2021-000742-AFCS
Judicial Summary: Claim made under Armed Forces Compensation Scheme (AFCS) in respect of fatal melanoma - Serviceman exposed to intense sun exposure both before and after April 2005 - Claimant argued that post-April 2005 sun exposure was predominant cause of cancer - Veterans UK decision to refuse award confirmed by First-tier Tribunal - Whether FTT relied on impermissible methods to find facts (including reliance on own knowledge) - Whether FTT misapplied causation test - Effect of latency - JM v SSD [2016] AACR 3 considered - Further appeal to Upper Tribunal dismissed.
Decision date: 6 June 2024
Tags: AFCS, melanoma
Case: MA v Secretary of State for Defence: [2024] UKUT 124 (AAC), UA-2023-000017-AFCS
Judicial Summary: Judicial Summary: academic appeals – article 47(1) of Armed Forces Compensation Scheme (AFCS) Order 2011 – whether any power for Secretary of State to review First Tier Tribunal decisions under Part 7 of the AFCS Order 2011.
Decision date:
Tags:
Full decision: MA v Secretary of State for Defence: [2024] UKUT 124 (AAC), UA-2023-000017-AFCS
Case: GAM v Secretary of State for Defence (No.3): [2024] UKUT 78 (AAC), UA-2023-SCO-000139-WP
Judicial Summary: Secretary of State refused claimant’s application for an any time review of original decision on war pensions claim - whether right of appeal to Pensions Appeal Tribunal (Scotland) - scope of any such appeal.
Decision date: 19 March 2024
Tags:
Case: GE v The Secretary of State for Defence (AFCS): [2024] UKUT 92 (AAC), UA-2021-000795-AFCS
Judicial Summary: Guaranteed Income Payment under Armed Forces Compensation Scheme (AFCS) Order 2011- Articles 16(10) and 64(2)(b) of AFCS Order 2011 – the Guaranteed Income Payment is only payable when service in the Armed Forces ends – this is the case irrespective of whether the service was in the regular forces or the reserve forces.
Decision date: 28 March 2024
Tags:
Case: GM v The Secretary of State for Defence (WP): [2024] UKUT 45 (AAC), UA-2023-000075-WP, UA-2023-000076-WP
Judicial Summary: This decision emphasises the need for First-tier Tribunals (here the Pensions Appeal Tribunals for Scotland), where there have been and remain multiple assessment review decisions under appeal, to identify with care the scope and period of the decisions under appeal to it (particularly where, as here, the appellant says he has got worse since the last decision), and to take account of all relevant issues arising on the appeal: per section 5B(a) of the Pensions Appeal Tribunals Act 1943.
Decision date: 7 February 2024
Tags:
Case: GAM v Secretary of State for Defence: [2024] UKUT 10 (AAC), UA-2023-000090-WP
Judicial Summary: Payment of unemployability supplement (“UnSupp”) and receipt of limited capability for work-related activity (“LCWRA”) element of universal credit (“UC”) – whether Secretary of State entitled to abate UnSupp by virtue of receipt of LCWRA element of UC - Articles 12, 52 and 56 of the Naval, Military and Air Forces (Disablement and Death) Service Pensions Order 2006 – abatement under Article 52, but not Article 12(10) - appeal dismissed.
Decision date: 3 January 2024
Tags:
Full decision - GAM v Secretary of State for Defence: [2024] UKUT 10 (AAC), UA-2023-000090-WP
Case: Secretary of State for Defence v CAW (WP): [2023] UKUT 246 (AAC)
Judicial Summary: Claim under war pensions scheme for Allowance for Lowered Standard of Occupation (ALSO) - Article 15 of the Service Pension Order 2006 - whether the claimant’s “disablement is such as to render him incapable, and likely to remain permanently incapable, of following his regular occupation and incapable of following any other occupation with equivalent gross income which is suitable in his case taking into account his education, training and experience” - focus of Article 15 is on the individual war pensioner and their attributes, and not wider externalities such as the labour market situation.
Decision date: 5 October 2023
Tags: war pension, Allowance for Lowered Standard of Occupation, ALSO
Case: EM v Secretary of State for Defence: [2023] UKUT 222 (AAC)
Judicial Summary: War widow’s pension payable after death of first husband – pension no longer payable after widow marries a second time - section 168 of Pensions Act 1995, in effect from 19 July 1995 - whether war widow’s pension may be restored for any period before 19 July 1995 where second marriage had ended before 19 July 1995 – whether claim is required to restore the war widow’s pension for any period after 19 July 1995 if the first husband did not die during service.
Decision date: 5 September 2023
Tags: war pension, widow, marriage, restore
Full decision - [2023] UKUT 222 (AAC); UA-2023-SCO-002105-GIA
Case: CRP v Secretary of State for Defence: [2022] UKUT 232 (AAC)
Judicial Summary: Armed Forces and Reserve Forces (Compensation Scheme) Order 2011 Schedule 3 Table 3 Item 2 – whether footnotes (a) and (b) are mutually exclusive – the correct approach to footnote (b): meaning of “able to work regularly” and date at which the conditions in the relevant descriptor must be met in order for that descriptor to apply.
Decision date: 12 August 2022
Tags: AFCS
Case: JOC v Secretary of State for Defence (Armed Forced Compensation Scheme): [2022] UKUT 208 (AAC)
Judicial Summary: Armed forces compensation – “spanning” case where service both predated and postdated 6 April 2005 – whether compensation for hearing loss under Naval, Military and Air Forces etc. (Disablement and Death) Service Pensions Order (SPO) or under Armed Forces Compensation Scheme (AFCS) – Tribunal practice when dealing with spanning claims - whether valid grounds for review under Article 44 SPO – correct interpretation of Articles 5 and 42 SPO - for the purposes of article 42(8) and 42(9) “termination of service” means end of service as member of armed forces before 6 April 2005 rather than having general meaning ascribed to that phrase in paragraph 59 of Part II of Schedule 6 SPO.
Decision date: 18 July 2022
Tags: war pension, AFCS, spanning, hearing loss
Case: TC v Secretary of State for Defence (WP): [2019] UKUT 409 (AAC)
Judicial Summary: Review of allowance for lowered standard of occupation – Article 44 of the Naval, Military and Air Forces etc (Disablement and Death) Service Pensions Order 2006 – The rate of recalculation to be used in any review depends on the ground on which the review proceeds.
Decision date: 3 December 2019
Tags: war pension, review, Allowance for Lowered Standard of Occupation, ALSO
Case: KF v Secretary of State for Defence (AFCS): [2019] UKUT 154 (AAC)
Judicial Summary: Admissibility of expert evidence – the tribunal should apply its own consideration of the admissibility of expert evidence in the particular circumstances of the case before it, given the general rule in relation to the admission of evidence.
Decision date: 11 April 2019
Tags: war pension, expert evidence
Case: RD v Secretary of State for Defence (WP) (Tribunal procedure and practice - other) [2019] UKUT 206 (AAC)
Judicial Summary:
Decision date: 27 June 2019
Tags: war pension, mental health problems, abscess to the left leg leaving muscle damage
Case: Secretary of State for Defence v TG (AFCS): [2019] UKUT 24 (AAC)
Judicial Summary: Armed Forces Compensation Scheme - road traffic accident on public road in serviceman’s free time - whether injury caused by service
Decision date: 21 January 2019
Tags: AFCS, RTA, duty time
Case: SM v Secretary of State for Defence (AFCS): [2017] UKUT 286 (AAC); [2018] AACR 4
Judicial Summary: Armed Forces Compensation Scheme – claimant slipped on icy steps to building where he worked – whether injury due to travel – whether injury due to slipping, tripping or falling while participating in pursuance of a service obligation in an activity in a hazardous environment – whether injury caused by service
The claimant was a colonel who worked in the HQ building of the Army Air Corps which was located inside a secure compound within an Army base. He fell while ascending steps up to the HQ building, because of a loose step combined with icy conditions and was injured. His claim under the Armed Forces and Reserve Forces (Compensation Scheme) 2011 was rejected by the Secretary of State on the ground that the claimed injury was not caused by service for the purposes of article 8 of the Scheme as climbing the steps was an activity everyone was required to do. The Secretary of State also argued that article 11(3), which provides an exclusion under the Scheme for those claims where injury is caused by slipping, tripping or falling, applied and that the claimant was not assisted by article 11(4)(a) or (b), because walking is not a hazardous activity and the HQ building was not a hazardous environment. Before the First-tier Tribunal the Secretary of State’s representative also argued that the claim should be excluded under article 11(1) as the claimant was travelling. The First-tier Tribunal rejected the claimant’s appeal finding that the cause of the injury was the icy loose steps and there was nothing service related about the icy weather conditions; it did not find it necessary to consider article 11. The claimant appealed to the Upper Tribunal where the Secretary of State accepted that the First-tier Tribunal had erred in law but submitted that the Upper Tribunal was the wrong forum for making findings of fact on whether an injury was caused by service or whether an environment was hazardous for the purposes of the Scheme.
Held, allowing the appeal, that: 1. the Upper Tribunal had a broad discretion either to remit the case to the First-tier Tribunal or to re-make the decision itself. All the necessary facts relating to the accident suffered by the claimant had been found, the circumstances were not peculiar to service so as to require the expertise of the First-tier Tribunal and the Upper Tribunal’s functions include giving guidance to promote consistency in decision-making and so a final decision would be given in this case (paragraphs 11 to 13);
- as was common ground, the First-tier Tribunal had erred in law in holding that, because the immediate causes of the fall were the weather and the loose step, the fall could not be categorised as a service cause of the claimant’s injury (paragraphs 14 to 16);
- once the claimant had entered the secure compound and was going up the entrance steps he was no longer travelling to work but had arrived and so payment of benefit was not excluded by article 11(1) (paragraph 20);
- when he fell while climbing the icy and uneven steps the claimant was participating, in pursuance of a service obligation, in an activity in a hazardous environment for the purposes of article 11(4)(b) and so payment of benefit was not to be excluded by article 11(3): Secretary of State for Defence v PA [2016] UKUT 500 (AAC); [2017] AACR 18 considered (paragraphs 21 to 28);
- the claimant’s injury was caused by the hazardous environment to which a service obligation exposed him and so, subject to the question of whether there was another cause for the injury (which was for the Secretary of State), it was caused wholly by service for the purposes of article 8 (paragraphs 46 to 52).
Decision date: 10 July 2017
Tags: AFCS
Full decision - [2017] UKUT 286 (AAC); [2018] AACR 4; [2018] AACR 4ws
Case: SN v Secretary of State for Defence (AFCS): [2018] UKUT 263 (AAC)
Judicial Summary: Armed Forces Compensation Scheme - mental illness arising during service - overraction to instructions given at work - whether injury caused or worsened by service
Decision date: 30 July 2018
Tags: AFCS, mental illness, causation, worsening
Case: NH v Secretary of State for Defence (AFCS): [2018] UKUT 217 (AAC)
Judicial Summary: Armed Forces Compensation Scheme - procedure - power of tribunal to leave matters to be decided by the Secretary of State - jurisdiction of tribunal - whether decision awarding guaranteed income payment was an interim award.
Decision date: 29 June 2018
Tags: AFCS, GIP
Case: NJ v Secretary of State for Defence (AFCS): [2018] UKUT 211 (AAC)
Judicial Summary: A member of the forces was deployed as head ski coach at the Army Medical Services Ski Championships. While she was coaching from the side of the piste, a civilian skier on a parallel piste lost control and collided with her, causing injuries. The issue was whether benefit was payable to her under Article 8 of the Armed Foces and Compensation Scheme Order 2011, which turned on the issue of whether there was a service cause for her injuries. The tribunal was found to have erred in law in (i) failing to give adequate reasons, due to inconsistency between the decision notice and the statement of reasons (ii) applying the law to the facts found by the tribunal. The decision was remade that the injuries were caused by service.
Decision date: 26 June 2018
Tags: AFCS, duty
Case: EP v Secretary of State for Defence (AFCS): [2017] UKUT 129 (AAC): [2017] AACR 33
Judicial Summary:
Armed Forces Compensation Scheme – correct approach to definition of “downgraded” in article 2(1) of the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011
Tribunal procedure and practice – evidence – need to consider everything
Following her enlistment in the Army in 2004 the appellant was found to have bilateral pes cavus in both feet and dysplasia in her right hip. In 2008 she claimed compensation under the Armed Forces Compensation Scheme (AFCS) which was rejected on the basis that both conditions were due to developmental abnormalities not service. The appellant was found to be fit only for limited duties on a number of occasions and in September 2009 a Medical Board examined the appellant and graded her P3 on a PULHHEEMS assessment by reason of bilateral foot pain and right hip impingement and her Medical Employment Standard (MES) was downgraded to L3, which meant that she was fit for limited duties but retained rank and pay. (PULHHEEMS is a functional assessment to determine an individual’s fitness for service within the Army and their subsequent grading for duty.) The appellant’s downgrading continued for the reminder of her service, except for a period in 2010 of less than two months when she was temporally upgraded. In 2010 the appellant’s claim for compensation for the pain in her feet was rejected by a First tier Tribunal (F-tT), holding that her first claim concerned the same matter and any appeal was out of time. In 2013 the appellant left the service and in April 2014 she claimed compensation a third time for the pain in her hip. That claim was rejected by the Secretary of State who concluded that the appellant did not qualify for compensation under article 9 of the AFCS. The F-tT upheld that decision, holding that the worsening of the hip injury in 2012 had not been the cause of the downgrading as required under article 9(3)(d) and had not been the cause of being downgraded on all occasions. The appellant applied for permission to appeal on the grounds that she had a permanent P3 PULHHEEMS grading from 8 September 2009 until her service ended on 17 December 2013.
Held, allowing the appeal, that:
- the definition of “downgraded” focuses not simply on whether a person has been downgraded but more specifically on the result of the downgrading, namely whether a person did, as a matter of fact, undertake a reduced range of duties. Additionally downgrading could not be determined by reference to the duties which a person might be called upon to undertake but which are not part of the ordinary duties of their role (paragraphs 43, and 48 to 49);
- the F-tT’s approach was in error of law because it failed to consider the medical evidence in detail, specifically (a) the restrictions on the appellant’s duties put in place following a PULHHEEMS assessment and (b) the restrictions set out in her MES. The tribunal determining the appeal had none of the detailed records about the various Medical Boards which considered the appellant’s fitness available to it and erred by failing to adjourn to obtain them, as all of this material should have been scrutinised alongside the appellant’s own evidence about what she thought her duties were (paragraphs 50 to 54);
- the UT provided guidance as to how a tribunal should approach the question of whether the appellant was continually downgraded within article 9(3)(c): JN v Secretary of State for Defence (AFCS) [2012] UKUT 479 (AAC) followed (paragraphs 58 to 59). The judge set aside the decision of the F-tT and remitted the appeal to a differently constituted tribunal to be re-decided in accordance with her directions.
Decision date: 17 March 2017
Tags: AFCS, evidence
Full decision - [2017] UKUT 129 (AAC): [2017] AACR 33; [2017] AACR 33ws
Case: Secretary of State for Defence v CM (WP): [2017] UKUT 8 (AAC); [2017] AACR 27
Judicial Summary:
War pensions – widow’s pension – whether constant attendance allowance or unemployability supplement can have been “payable” to the deceased if successful claim not made by him – whether appeal in respect of widow’s pension can be treated as a posthumous appeal in respect of constant attendance allowance
War pensions – constant attendance allowance – eligibility when a need for attendance arises both from accepted conditions and from another condition
In all three cases the claimant was the widow of a former member of the Armed Services who had been receiving payments of retired pay or pension under article 6 of the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 2006 based upon their having either 90 per cent or 100 per cent disablement. Each of the deceased had claimed constant attendance allowance (CAA) but the claims had been disallowed and they had not appealed. All three claimants applied for a war widow’s pension under article 23 of the Order but were unsuccessful. In each case the Secretary of State decided that the deceased’s death was not due to service. He also received advice that the deceased would not have satisfied the conditions for entitlement to CAA for at least 26 weeks before his death had he made another claim.
The claimants all appealed to the First-tier Tribunal (F-tT). In the first case, the claimant having referred to allowances that her husband had had, the Secretary of State said that the deceased had had an underlying entitlement to unemployability supplement but submitted that it was not “payable” for the purposes of article 22(4) so as to entitle his widow to a widow’s pension because he had had an allowance for lowered standard of occupation. The F tT awarded a widow’s pension on the ground that the deceased had satisfied the conditions for entitlement to CAA for at least 26 weeks before his death because his needs for attendance had arisen not only from lung cancer that was not attributable to service but also from conditions attributable to service. In the other two cases too, the F-tT considered whether the deceased had satisfied the conditions for entitlement to CAA for at least 26 weeks before his death, allowing one appeal on the ground that the deceased had done so and that therefore article 22(3) was satisfied but dismissing the other on the ground that the deceased had not done so.
The Secretary of State appealed to the Upper Tribunal (UT) in the first two cases and the claimant in the other. The UT allowed the claimant’s appeal in the third case on the ground that the F-tT had failed to give reasons for not finding that the deceased’s death had been due to service but deferred consideration of the question of the scope of the remitted appeal. In all three cases, the Secretary of State submitted that his practice of awarding a pension to a widow whose husband’s disablement had been assessed as at least 80 per cent if he would have satisfied the conditions for entitlement to CAA for at least 26 weeks before his death had he made a claim was a concession made under the dispensing instruments and that article 22(3) of the Order had not been satisfied in any of the cases because CAA was not “payable to [the deceased] in respect of a period ending with his death”.
Held, allowing the Secretary of State’s appeals and giving a further direction in the claimant’s appeal, that:
- the right of appeal in section 1(3) or (3A) of the Pensions Appeal Tribunals Act 1943 against a decision that death was not due to service extended to a decision that death could not be treated as having been due to service (paragraph 13);
- CAA could not be regarded as “payable” for the purposes of article 22(3) of the 2006 Order unless there had been a successful claim for the allowance (which could be determined posthumously) because article 34 required there to be a claim for CAA before an award could be made (paragraphs 18 to 22);
- similarly, unemployability supplement was not “payable” to the first claimant’s husband for the purposes of articles 15(4) and 22(4) of the 2006 Order because there had been no claim for it, whereas “eligible” in articles 15(5) and 27(1)(b)(ii) meant “entitled but for having made a claim” (paragraphs 33 to 36);
- an appeal against a rejection of a widow’s pension claim could be treated as having been also a posthumous appeal against the rejection of a claim for CAA, provided that the appeal had been made within the time limit for such a posthumous appeal, and the claimants in the first two cases would be treated as having brought such appeals, the third claimant having been irredeemably out of time for doing so (paragraphs 40 and 48 to 60);
- there was no right of appeal under section 1(3) or (3A) of the Pensions Appeal Tribunals Act 1943 against a decision not to make a payment under a dispensing instrument, even if the decision was expressed in terms of the deceased’s death not being treated as having been due to service (paragraphs 77 and 78);
- while article 8 of the 2006 Order did not directly address dual causation in relation to CAA, considering whether the “accepted disablement” was the main factor in the overall need for attendance was an approach capable of taking account of the extent to which different disabilities might interact with each other (paragraph 107);
- in the first case, the F-tT had given inadequate reasons for finding that the deceased had been eligible for CAA before his death because it had not made a finding as to whether the contribution of his disablement due to the accepted conditions was sufficient to have qualified him for at least the part day rate of CAA (paragraph 108).
In the Secretary of State’s appeals, the judge set aside the decisions of the F-tT, remitting the first case to the F-tT and directing a further submission in the second case. In the third claimant’s appeal, the judge directed that the remitted case be decided in accordance with his reasoning, so that whether her husband had been eligible for CAA in the period before he died was irrelevant to her entitlement to a widow’s pension.
Decision date: 6 January 2017
Tags: war pension, widow, constant attendance allowance, unemployability supplement
Full decision - [2017] UKUT 8 (AAC); [2017] AACR 27; [2017] AACR 27ws
Case: DP v Secretary of State for Defence (WP): [2017] UKUT 434 (AAC)
Judicial Summary: In this appeal, the F-tT decided to reduce an assessment on review. It did not, however, refer to Article 44(4) expressly, nor state explicitly the condition it relied upon when reducing the assessment from 40% to 30%. It did ‘warn’ the appellant and his representative of its power to increase, reduce or maintain the assessment at its present rate and gave them the opportunity to adjourn to discuss whether they wished to proceed. They declined. The warning did not, of course, show that the F-tT adverted to Article 44(4). However, the F-tT’s careful analysis of evidence over the course of nearly 30 years, including a large body of medical evidence, led me to the conclusion that it must have had Article 44(4) in mind when hearing the case and making its decision, and its findings were more than adequate to show it relied on mistake of material facts. I explain in very basic terms aspects of ignorance of material facts and mistake as to material facts. I also discuss fact vs opinion, and how an opinion may imply that the person giving the opinion had reasonable grounds for holding it. That could amount to a fact.
Decision date: 31 October 2017
Tags: war pension
Case: HD v Secretary of State for Defence (WP): [2017] UKUT 376 (AAC)
Judicial Summary: When there is a need to make a claim for a “restored” war widows pension
Decision date: 14 September 2017
Tags: war pension, widow
Case: SA v Secretary of State for Defence (AFCS): [2017] UKUT 374 (AAC)
Judicial Summary: Armed Forces Compensation Scheme 2011 - article 9 - claimant downgraded due to injury not caused by service - whether exacerbation of injury such that the claimant does not recover from the injury to the extent that he otherwise would have done can amount to a “worsening”
Decision date: 14 September 2017
Tags: AFCS, worsening
Case: TH v Secretary of State for Defence (AFCS): [2017] UKUT 309 (AAC)
Judicial Summary: Outbreak can include a single case of meningitis for the purposes of entitlement to compensation under the 2011 Scheme
Decision date: 24 July 2017
Case: Secretary of State for Defence v PA (AFCS): [2016] UKUT 500 (AAC); [2017] AACR 18
Judicial Summary:
Armed Forces Compensation Scheme 2011 – article 11 – meaning of hazardous environment
The claimant, a soldier, sustained injuries after he went to sit on a wall, lost his balance and fell whilst waiting for a bus to take him to a training destination in Israel. His claim for benefit under the Armed Forces Compensation Scheme (AFCS) was rejected, initially on the basis that his injuries had not been caused by service and on review that the exclusion in article 11(3) of the AFCS, for injuries sustained by slipping, tripping and falling applied, and as the activity was not of a hazardous nature or in a hazardous environment the exceptions in article 11(4) were not engaged. The First-tier Tribunal (F-tT) upheld the claimant’s appeal holding, amongst other things, that the exceptions in article 11(4) did apply as the claimant had been engaged in a sensitive service activity within Israel which was therefore a hazardous environment, given the nature of the operation. The Secretary of State for Defence appealed against that decision arguing that the F-tT had erred in law in deciding that the whole of Israel was a hazardous environment and also by failing to give reasons for its conclusion that the claimant’s injuries were caused by service in accordance with article 8 of the AFCS.
Held, allowing the appeal, that:
- the underlying purpose and intention of the AFCS as a whole was to establish an entitlement to benefit based on a service cause, as opposed to breach of duty or fault, and the exceptions in article 11(4) to the general exclusion of slipping, tripping and falling accidents were intended to capture “non-routine” activities: JM v Secretary of State for Defence (AFCS) [2015] UKUT 332 (AAC); [2016] AACR 3 (paragraph 33);
- the F-tT erred in interpreting article 11(4)(b) so as to conclude that the whole of Israel was a hazardous environment for the claimant. The environment in which the respondent came to be injured could not, on any sensible interpretation of the 2011 AFCS, be classified as “hazardous”, there being nothing about the activity of a soldier waiting for a bus more likely to lead to a slip, trip or fall than if a civilian had been participating in the same activity in ordinary, or non-service, circumstances (paragraph 34);
- the F-tT failed to support with adequate reasoning its conclusion that the respondent’s injuries were predominantly caused by service. It should have followed the steps set out in JM before considering whether the exclusions in article 11(3) and 11(4) applied in this case (paragraph 38);
- the test under article 8(1) and (2) was not whether the claimant was in service or was on duty at the time of his fall but whether his injury was caused and predominantly caused by service. The claimant failed to satisfy that test because at the time of the accident he was doing something necessary for him to carry out his job but he was not yet doing it. The fact that he was in Israel on a training exercise as a member of the Armed Forces could not be regarded as anything other than the setting for what occurred – not the cause of his injury (paragraph 44 to 45);
- even if the claimant’s injuries had been caused by service, his claim for benefit would still have failed because none of the exclusions in article 11(4) applied: he was not engaged in an activity of a hazardous nature, in a hazardous environment or actually taking part in training (paragraphs 46 to 47).
The judge set aside the decision of the F-tT and re-made it to the effect that the claimant’s appeal against the decision of the Secretary of State for Defence was dismissed
Decision date: 4 November 2016
Tags: AFCS
Full decision - [2016] UKUT 500 (AAC); [2017] AACR 18; AACR 18ws
Case: Secretary of State for Defence v NM (WP): [2017] UKUT 223 (AAC)
Judicial Summary: reasonable doubt under article 40(3)
Decision date: 23 May 2017
Case: Secretary of State for Defence v KR (WP): [2017] UKUT 144 (AAC)
Judicial Summary: Article 11(4)(c) “Participating in training”
Decision date: 31 March 2017
Case: JH v Secretary of State for Defence (AFCS): [2017] UKUT 140 (AAC)
Judicial Summary: Serviceman victim of hit-and-run driver in Spain; service the setting but not a cause of injuries sustained
Decision date: 30 March 2017
Case: HH-T v Secretary of State for Defence (WP): [2016] UKUT 418 (AAC)
Judicial Summary: Spanning case - article 40(2) of SPO 2006 only applies once SofS has decided entitled to AFCS award - distinction between ‘entitlement’ and ‘assessment’ appeals - entitlement under article 40(1) of SPO 2006 is concerned with disablement presenting on claim after end of service and whether that disablement is attributable injury due to service before 06.04.05 - where entitlement accepted, percentage assessment of disablement can, however, be nil.
Decision date: 15 September 2016
Case: Secretary of State for Defence v BB (WP): [2016] UKUT 353 (AAC)
Judicial Summary: Decision wrong. Failure to deal with relevant evidence, failure to give adequate reasons, failure to assess credibility in relation to other evidence.
Decision date: 22 July 2016
Case: AL v Secretary of State for Defence (WP): [2016] UKUT 141 (AAC)
Judicial Summary: None provided
Decision date: 11 March 2016
Case: JB v Secretary of State for Defence (AFCS): [2016] UKUT 248 (AAC)
Judicial Summary: Whether right of appeal against refusal to make a temporary award.
Decision date: 18 May 2016
Case: DS v Secretary of State for Defence (WP): [2016] UKUT 51 (AAC)
Judicial Summary: Adequacy of reasons.
Decision date: 29 January 2016
Tags: war pension
Case: LP v Secretary of State for Defence (AFCS): [2016] UKUT 99 (AAC)
Judicial Summary: Predominant cause.
Decision date: 22 February 2016
2006-2016 Upper Tribunal decisions
107 cases to add
Case:
Judicial Summary:
Decision date:
Tags:
Case: 2016 UKUT 500 AAC, [2017] AACR 18 (Secretary of State for Defence v A (AFCS), CAF/2213/2015, [2017] AACR 18 (SSD v PA)
Judicial Summary: Reported as [2017] AACR 18 Armed Forces Compensation Scheme 2011 – article 11 – meaning of hazardous environment The claimant, a soldier, sustained injuries after he went to sit on a wall, lost his balance and fell whilst waiting for a bus to take him to a training destination in Israel. His claim for benefit under the Armed Forces Compensation Scheme (AFCS) was rejected, initially on the basis that his injuries had not been caused by service and on review that the exclusion in article 11(3) of the AFCS, for injuries sustained by slipping, tripping and falling applied, and as the activity was not of a hazardous nature or in a hazardous environment the exceptions in article 11(4) were not engaged. The First-tier Tribunal (F-tT) upheld the claimant’s appeal holding, amongst other things, that the exceptions in article 11(4) did apply as the claimant had been engaged in a sensitive service activity within Israel which was therefore a hazardous environment, given the nature of the operation. The Secretary of State for Defence appealed against that decision arguing that the F-tT had erred in law in deciding that the whole of Israel was a hazardous environment and also by failing to give reasons for its conclusion that the claimant’s injuries were caused by service in accordance with article 8 of the AFCS. Held, allowing the appeal, that: 1. the underlying purpose and intention of the AFCS as a whole was to establish an entitlement to benefit based on a service cause, as opposed to breach of duty or fault, and the exceptions in article 11(4) to the general exclusion of slipping, tripping and falling accidents were intended to capture “non-routine” activities: JM v Secretary of State for Defence (AFCS) [2015] UKUT 332 (AAC); [2016] AACR 3 (paragraph 33); 2. the F-tT erred in interpreting article 11(4)(b) so as to conclude that the whole of Israel was a hazardous environment for the claimant. The environment in which the respondent came to be injured could not, on any sensible interpretation of the 2011 AFCS, be classified as “hazardous”, there being nothing about the activity of a soldier waiting for a bus more likely to lead to a slip, trip or fall than if a civilian had been participating in the same activity in ordinary, or non-service, circumstances (paragraph 34); 3. the F-tT failed to support with adequate reasoning its conclusion that the respondent’s injuries were predominantly caused by service. It should have followed the steps set out in JM before considering whether the exclusions in article 11(3) and 11(4) applied in this case (paragraph 38); 4. the test under article 8(1) and (2) was not whether the claimant was in service or was on duty at the time of his fall but whether his injury was caused and predominantly caused by service. The claimant failed to satisfy that test because at the time of the accident he was doing something necessary for him to carry out his job but he was not yet doing it. The fact that he was in Israel on a training exercise as a member of the Armed Forces could not be regarded as anything other than the setting for what occurred – not the cause of his injury (paragraph 44 to 45); 5. even if the claimant’s injuries had been caused by service, his claim for benefit would still have failed because none of the exclusions in article 11(4) applied: he was not engaged in an activity of a hazardous nature, in a hazardous environment or actually taking part in training (paragraphs 46 to 47). The judge set aside the decision of the F-tT and re-made it to the effect that the claimant’s appeal against the decision of the Secretary of State for Defence was dismissed.
Decision date: 04/11/2016
Tags: AFCS
[2025] UKUT 215 (AAC)
Appeal No. UA-2024-SCO-000019-WP
IN THE UPPER TRIBUNAL
ADMINISTRATIVE APPEALS CHAMBER
Between:
WJ
Appellant
- v -
Secretary of State for Defence
Respondent
Before: Upper Tribunal Judge Wright
Decided after an oral hearing on 11 February 2025
Representation:
Appellant: Tim Haddow, Advocate
Respondent: Megan Dewart, Advocate
On appeal from:
Tribunal: Pensions Appeal Tribunals for Scotland
Tribunal Case No: PATS/E/19/0018
Tribunal Venue: George House, Edinburgh
Decision Date: 13 October 2023
SUMMARY OF DECISION
The PATS's decision on the evidence before it that Gulf War Illness (aka Gulf War Syndrome) is not a physical injury/an organic disease was not in error of law.
KEYWORD NAME (Keyword Number) 56 (war pensions); 56.1 (entitlement)
Please note the Summary of Decision is included for the convenience of readers. It does not form part of the decision. The Decision and Reasons of the judges follow.
DECISION
The decision of the Upper Tribunal is to dismiss the appeal.
The decision of the Pensions Appeal Tribunals for Scotland made on 13 October 2023 under case number PATS/E/19/0018 did not involve the making of any material error of law.
REASONS FOR DECISION
Introduction
1. The key issue on this appeal is whether the Pensions Appeal Tribunals for Scotland ("the PATS") correctly approached whether Gulf War Illness ("GWI") affected the appellant's claim to be entitled to a war disablement pension.
2. I apologise for the time it has taken me to make this decision after the oral hearing in February of this year. The delay arose due to pressure of other work. The appellant's claim for a war pension was made as long ago as 2008 and I am sorry I have added to the delay in him having that claim decided.
Relevant background
The appellant's service and claim for a war disablement pension
3. The appellant is a former member of the Royal Fleet Auxiliary who saw active service at sea during the 1991 Gulf War.
4. On 7 October 2008 the appellant made a claim for a war disablement pension under the War Pensions (Mercantile Marine Scheme) 1964 ("the 1964 Scheme). In his claim, the appellant stated that the illness, disease or other condition for which he was claiming was "Gulf War Syndrome". He then described four ways in which he was affected by this condition: (i) lack of sex drive and impotence, (ii) severe joint and muscle pains, (iii) chronic fatigue, and (iv) depression and memory loss. The appellant attributed his condition and what he described as its effects to his service during the 1991 Gulf War. The appellant's claim set out three possible causes of the condition: (i) multiple vaccinations; (ii) administration of nerve agent pre-treatment tablets ("NAPs"); and (iii) frequent exposure to thick black smoke whilst on the upper deck of his vessel.
5. The Secretary of State refused the claim in 2009. However, after appeals against that decision which extended over many years, the Secretary of State issued a fresh decision on the claim on 11 December 2018. This decision on entitlement also refused the claim. It is this 11 December 2018 decision which the appellant appealed to the PATS.
6. It would seem that the Secretary of State's decision neither accepted or rejected the appellant's claim to suffer from Gulf War Syndrome. (Gulf War Syndrome has also been referred to as Gulf War Illness (GWI) in these proceedings, and I will refer to it as the latter. Nothing turns on the nomenclature). It was the appellant's case that the Secretary of State took this position because of his view that GWI "is not a syndrome in medical terms but may be used as an umbrella term to cover other conditions".
The PATS's proceedings and decision
7. The PATS heard the appeal on 10 October 2023. By its decision of 13 October 2023 it dismissed the appeal. Both the Secretary of State and the PATS proceeded on the basis that appellant's claim for a war disablement pension was based on the following "injuries, wounds or diseases": (i) lack of sex drive and impotence, (ii) severe joint and muscle pains, (iii) chronic fatigue, and (iv) depression and memory loss" ("the injuries"). Both the Secretary of State (in dismissing the claim) and the PATS (in dismissing the appeal) found that none of these injuries were attributable to service or had been aggravated by service.
8. An aspect of the claim and the appeal concerned whether GWI should be recognised as a discrete medical condition. On 23 April 2023 the PATS had directed that the appellant's appeal to it should be subject of a one day hearing. Those directions also included that the following issues were to be determined by the PATS on the entitlement appeal:
1. is GWI a qualifying injury under the War Pensions (Mercantile Marine Scheme) 1964?;
2. if so, does the appellant have GWI?;
3. if so, is there a reasonable doubt that his GWI is related to service?; and
4. in particular, is there a reasonable doubt that his GWI is caused by (i) exposure to smoke; and/or (ii) the administration of vaccines?
9. The issue about the administration of vaccines arose on a separate appeal against another decision of the Secretary of State, which is dated 14 March 2019. That appeal was not before the PATS in this appeal, it having been sisted pending the outcome of the PATS's decision on this appeal. I therefore say no more about it or vaccines.
10. The appellant's case before the PATS, as summarised by the PATS, was as follows. First, GWI was a single diagnostic entity, he had GWI and he had raised a reasonable doubt that his GWI related to his service. He argued that recent research had established that GWI is a single entity medical condition, and he satisfied the relevant diagnostic criteria. And he contended that there was a valid analogy between GWI and chronic fatigue syndrome ("CFS") as CFS is also a diagnosis of exclusion and covers a wide range of symptoms with unknown aetiology.
11. The PATS commented that although the appellant relied on the notion that GWI is a single diagnostic injury:
"it is clear that this is neither a necessary or sufficient condition for succeeding in the appeal. What matters is whether the individual symptoms complained of are related to service."
12. The Secretary of State's case before the PATS, again as summarised by the PATS, was that GWI did not qualify as a physical injury under 1964 Scheme. This was because it was an umbrella term for a number of different symptoms with a number of different causes, no underlying pathological process had been identified despite a huge amount of research, and as such GWI did not meet the generally accepted definition of a medical syndrome. The qualifying injuries were therefore the four individual symptoms on which the claim had been based (as identified in paragraph 7 above). Further, as the claim had been made more than seven years after the termination of the appellant's service, the onus was on the appellant to raise a reasonable doubt that his symptoms were related to service. As to this last point, the Secretary of State's case to the PATS was that there were numerous co-existing medical conditions which better explained the appellant's symptoms and there was no medical evidence to support a causal connection with service. The appellant had therefore failed to raise a reasonable doubt that any of his four symptoms were related to service.
13. The PATS's heard evidence from the appellant. It found him to be a credible witness, but it considered his reliability had clearly been affected by the passage of time. For this reason, the PATS relied more on contemporaneous documentary evidence. The appellant's evidence to the PATS was that he had joined a ship in Bahrain in February 1991 and had remained on board that ship until August 1991. The appellant had been exposed to smoke when it was anchored off Kuwait for a period, when the was on the ship's upper deck. When the appellant was exposed to smoke, he would have been wearing chemical warfare protection suits and a smoke mask. The appellant remembered chemical warfare alarms going off, but not how often this occurred save for it perhaps being twice a week. In his normal work on board the ship, he was below deck for most of his deployment. The appellant did not notice any problems during this deployment.
14. The PATS also had before it written and oral medical evidence from a jointly instructed expert, Dr Madhok, a consultant physician and rheumatologist. He had been instructed to provide an opinion on the medical issue in the case. Dr Madhok accepted he was not an expert in GWI, but he was an expert in chronic fatigue syndrome. The PATS summarised the rest of Dr Madhok's evidence as follows in its decision:
"24. [Dr Madhok] demonstrated a full understanding of the Kansas or Centre for Disease Control criteria. In particular, he made the important distinction between diagnostic criteria and classification or case criteria. Diagnostic criteria are a set of signs, symptoms and tests for use in routine clinical care to guide the care of the individual patient. Classification criteria are simply standardised definitions to define homogenous cohorts for clinical research. Importantly, there are no accepted diagnostic criteria for GWI. Even more importantly, classification criteria cannot be used as diagnostic criteria.
25. He also recognised the important distinction between establishing a relationship and establishing causality. Neither the Kansas nor the Centre for Disease Control established a causal connection between service in the Gulf war and symptoms, merely an association.
26. Turning to the facts of this appeal, Dr Madhok noted the appellant's extensive co-morbidities. He did not identify any inflammatory arthritis, unexplained chronic regional pain syndrome or peripheral neuropathy.
27. In his oral testimony, Dr Madhok explained that CFS is a psychosocial disorder of unknown aetiology where the underlying biology was not fully understood. It was a diagnosis of exclusion. NICE and SIGN have both produced guidelines for the management of CFS.
28. The appellant's severe osteoarthritis and in particular his cervical spondylosis was an obvious explanation of his symptoms. If Dr Madhok saw the appellant in his clinic, that is what he would attribute the symptoms to. There were no features of fibromyalgia. Dr Madhok was not qualified to speak to psychological or psychiatric features of the presentation. However, he had not noted any reference to such features in the medical records.
29. Dr Madhok could not identify any factors in service that might have contributed to the appellant's symptoms. In a clinical setting, he would not have entertained service in the Gulf War as a contributory feature."
15. The PATs then addressed in its decision the medical literature which had been put before it, and did so as follows:
"30. The appellant placed great emphasis in the appeal on whether GWI is a single diagnostic entity. As noted above, this is something of an academic question as the answer is not determinative of the appeal. However, the question has been posed and has to be answered.
31. The first article is Gulf War Illness: Lessons from medically unexplained symptoms (Iverson et al, Clinical Psychology Review 27 (2007) 842-854). This report notes that although service in the Gulf War is associated with increased reporting of symptoms and distress, research has failed to generate a plausible aetiological mechanism for veterans' ill-health.
32. The appellant placed particular reliance on the US Institute of Medicine reviews in 2006, 2010 and 2016. The history of these reviews shows a change from the position that there were a number of Gulf War illnesses (plural) - the position of the UK Medical Research Council in 2003 - to a position that there is a single Gulf War illness, albeit with a multitude of symptoms and no underlying pathological cause. Although it is easy to see why the appellant would attach importance to this significant change in terminology, the fact remains that this is only relevant to research, not diagnostic, purposes.
33. The appellant also referred to an article by Chen et al (2017) Role of mitochondrial DNA damage and dysfunction in veterans with Gulf War Illness (PLoS One 12(9):e0184832), which explores the hypothesis that veterans with GWI exhibit greater mtDNA damage which is consistent with mitochondrial dysfunction. A number of caveats need to be given to this article. The most obvious is that it had a tiny study sample of only 21 patients. As such it is not statistically significant. This can be seen from the underlying hypothesis that such dysfunction was caused by exposure to agents such as carbamates and organophosphates..... There is no suggestion of such exposure here. Equally, there is no evidence that the appellant has mtDNA damage. Finally, it should be noted that the article recognises that "GWI is a chronic multi-symptom illness not currently diagnosed by standard medical or laboratory test..."
34. The appellant also referred to an article by Fukuda et al Chronic Multisymptom Illness Affecting Air Force Veterans of the Gulf War (JAMA 1998; 280:981-988) as defining diagnostic criteria for GWI. However, the objective of the article was "To organize symptoms reported by US Air Force GW veterans into a case definition, to characterize clinical features, and to evaluate risk factors". In other words, it was designed to provide case or classification criteria, not diagnostic criteria. Indeed, the introduction to the article notes that "no specific disorder has been identified, and the etiological basis and clinical significance of their symptoms remain unclear".
35. The most recent article relied on is Haley R et al (2022) Evaluation of a Gene-Environment Interaction of PON1 and Low-Level Nerve Agent Exposure with Gulf War Illness: A Prevalance Case-Control Study Drawn from the US Military Health Survey's National Population Sample Environmental health perspectives, 130(5), 57001. Dr Anne Braidwood provides a number of criticisms of this research at page 966 of the bundle, but the most obvious problem for the appellant is the absence of any evidence that he was exposed to nerve agent during his brief time in theatre. Although the appellant did give evidence that he heard chemical alarms, he did not suggest that there was ever any exposure to agents such as organophosphates.
36. In summary, the literature raises the reasonable possibility that a number of unrelated symptoms are related to service in the Gulf war. However, the possible causes of those symptoms are diverse and no unifying underlying pathology has been identified.
37. The main problem with the appellant's approach is that it treats the classification criteria of the Kansas and CDC studies as diagnostic criteria (see paras 44-48 of the Answers to the Statement of Case). As explained above, this is inappropriate. In the absence of diagnostic criteria, it is difficult for a tribunal, in the absence of any medical diagnosis, to make the finding the appellant has GWI.
38. Furthermore, GWI is a diagnosis of exclusion, and there are co-existing medical conditions that explain the condition.
39. Finally, even if it was accepted that the appellant has GWI, it would still be necessary to go on and demonstrate that the individual symptoms claimed are related to service. Accordingly, the medical literature is of little more than academic interest in this appeal."
16. Based on the evidence before it, the PATS made the following relevant findings in fact:
(i) the appellant had been administered with NAPS and there was no contemporaneous report of any adverse reaction;
(ii) he had been exposed to smoke on a handful of occasions. On each occasion he was wearing full chemical warfare protection including a mask, and he had not noticed or reported any problems following those exposures;
(iii) the appellant was not exposed to any chemicals or nerve agents whilst in theatre; and
(iv) on the balance of probabilities, the appellant did not suffer from chronic fatigue syndrome or depression or memory loss, but he did suffer from impotence and loss of libido, and generalised joint and muscle pains.
17. The PATS then went on to set out what it termed its considerations in deciding the appeal. That involved it answering two questions.
18. The first question to be answered was whether the appellant had the conditions for which he had claimed. The PATS directed itself that it was for the appellant to prove on the balance of probabilities that he had the disablement for which he was claiming. In relation to GWI the PATS concluded the answer was 'no'. This was because GWI is a diagnosis of exclusion and there were several co-existing medical conditions that could explain the appellant's symptoms. The PATS stated that this answer, however, was not determinative of the appeal as each of the symptoms claimed for had to be considered in turn.
19. Turning to those symptoms, the PATS's view was that in respect of both the lack of sex drive and impotence, and severe generalised joint and muscle pain, there was clear evidence that the appellant had suffered from these symptoms. However, the PATS considered that the same was not true for chronic fatigue syndrome ("CFS") or depression and memory loss. Dr Madhok did not consider that the diagnosis of CFS applied and, as a diagnosis of exclusion, there were other co-existing morbidities which explained the appellant's symptoms. As for depression and memory loss, the PATS's view was that there was no evidence of any recognised psychiatric illness, including depression, and indeed the appellant's GP had confirmed the same. Nor had the appellant reported memory loss to his GP, which was to be contrasted with the action the appellant had taken in respect of sexual dysfunction. In any event, the appellant had accepted that he could not raise a reasonable doubt that any depression and memory, as a standalone condition, had been caused by a war injury or war risk injury.
20. The second question the PATS had to address was whether the symptoms which it accepted the appellant had were related to service. Having set out relevant case law, the PATS set out its conclusions on this second question as follows.
"78. Turning first to the question of loss of libido and impotence, there is a clear alternative explanation in the letter from Dr Shennan at pages 208-210. That explanation has nothing to do with service but instead relates to his cervical surgery in 1995. Given that the appellant did not suffer any acute symptoms in relation to any of the claimed stressors (smoke exposure, administration of vaccine and NAPs), there is no plausible biological explanation of how those stressors could have caused the symptoms many years later. Accordingly, there is no reasonable doubt that the symptoms are attributable to service.
79. The position is not quite so clear cut in relation to the last remaining symptom, severe joint and muscle pain. However, there is again a far more likely explanation, in the form of the severe osteoarthritis which is - quite properly - accepted as unrelated to service.... Again there is no plausible biological explanation for how service could have caused these symptoms. Accordingly, we find that there is no reasonable doubt that the symptoms are attributable to service."
The grant of permission to appeal
21. The then President of the PATS, Judge Caldwell KC, gave the appellant permission to appeal to the Upper Tribunal. Judge Caldwell said she could see no obvious error of law in the PATS's decision, but she nevertheless considered that the grounds of appeal were arguable and worthy of consideration by the Upper Tribunal. Why the grounds were worthy of consideration by the Upper Tribunal was not explained.
The grounds of appeal
22. The appellant brings this appeal to the Upper Tribunal on six grounds. I take the six grounds from the appellant's Notice of Appeal. The six grounds a set out in the Notice of Appeal are:
(i) Ground 1: whether GWI is a qualifying injury?;
(ii) Ground 2: whether the status of GWI as a diagnostic entity is academic?
(iii) Ground 3: does the appellant meet the criteria for GWI?
(iv) Ground 4: findings relating to cognitive difficulties;
(v) Ground 5: findings related to loss of libido; and
(vi) Ground 6: causation.
23. At the hearing, Mr Haddow for the appellant took grounds 1, 2 and 6 together, followed by ground 3 and then grounds 4 and 5 (which he described as covering conditions other than GWI).
24. Although the above are only the headings for each of the grounds, on their face none of them raise any argument that the PATS erred in law in its decision. Taken at face value the questions about whether GWI is a qualifying injury and whether the appellant met the criteria for having GWI are issues of fact which it is not for the Upper Tribunal to decide in the exercise of its error of law jurisdiction. However, as will become apparent, at least to an extent the grounds when unpacked further did raise what were said by the appellant to be errors of law in the PATS's approach to his appeal.
The legislative scheme
25. To properly frame the analysis of the above grounds, it is necessary to set out the relevant parts of the legislative scheme.
26. Section 2 of the Pensions Appeal Tribunals Act 1943 deals with appeals under the 1964 Scheme. It provides as follows:
"Appeals against rejection of war pension claims made in respect of mariners, pilots, etc.
2. (1) Where any claim in respect of the disablement or death of any person made under any scheme made under section three, section four or section five of the Pensions (Navy, Army, Air Force and Mercantile Marine) Act 1939, as amended by the Pensions (Mercantile Marine) Act 1942, is rejected by the Minister on either or both of the following grounds, namely—
(a) that the disablement or death of the said person is not directly attributable to a war injury, war risk injury or detention;
(b) that the case is not one in which—
(i) the said person is to be treated for the purpose of the said section three as having sustained the injury or suffered the detention by reason of his service as a mariner in a British ship; or
(ii) the said person is to be treated for the purpose of the said section four as having sustained the injury or suffered the detention by reason of his service; or
(iii) the injury was sustained in the circumstances specified in a scheme made under the said section five or the detention was caused by reason of his service in a ship forming part of His Majesty's navy;
the Minister shall notify the claimant of his decision, specifying the ground or grounds of the rejection, and thereupon an appeal shall lie to the appropriate tribunal on the issue whether the claim was rightly rejected on that ground or those grounds.
(2) Where the Minister rejects any such claim as aforesaid on one of the grounds specified in the last foregoing subsection and an appeal is brought from his decision,—
(a) the Minister may notify the appellant before the hearing of the appeal that he also rejects the said claim on the other ground so specified, and thereupon the appropriate tribunal shall treat the appeal as an appeal on the issue whether the claim was rightly rejected on both the said grounds;
(b) unless the Minister notifies the appellant as aforesaid, he shall not be entitled, if the appeal is allowed, subsequently to reject the said claim on the said other ground."
27. The 1964 Scheme is made under the Pensions (Navy, Army, Air Force and Mercantile Marine) Act 1939, as amended by the Pensions (Mercantile Marine) Act 1942 ("the 1939 Act").
28. Section 3(1) of the 1939 Act provides as follows:
"Awards to mariners in respect of war injuries and detention.
3.- (1)The Minister may, with the consent of the Treasury, make a scheme for—
(a) applying the provisions of any Naval War Pensions Order to persons in cases where their death or disablement is directly attributable to their having sustained war injuries, or suffered detention, by reason of their service as mariners in British ships;
(b) the payment of allowances to or for the benefit of persons who have suffered detention as aforesaid or to or for the benefit of their dependants."
29. The relevant aspects of the 1964 Scheme are as follows.
30. Paragraph 1 and 2 of Schedule 1 to the 1964 Scheme provide, insofar as relevant, as follows:
"1. A war injury is a physical injury—
(a) caused by—
(i) the discharge of any missile (including liquids and gas); or
(ii) the use of any weapon, explosive or other noxious thing; or
(iii) the doing of any other injurious act;
either by the enemy or in combating the enemy or in repelling an imagined attack by the enemy; or
(b) caused by the impact on any person or property of any enemy aircraft, or any aircraft belonging to, or held by any person on behalf of or for the benefit of, Her Majesty or any allied power, or any part of, or anything dropped from, any such aircraft.
2. A war risk injury is a physical injury sustained on or after 3rd September 1939 at sea or in any other tidal water or in the waters of any harbour and attributable to—
(a) the taking of measures with a view to avoiding, preventing or hindering enemy action against ships, or as a precaution in anticipation of enemy action against ships, or for rescue or salvage purposes in consequence of enemy action against ships; or....
(d) the existence on board ship of any other conditions arising out of any such war as aforesaid which would be abnormal in time of peace..."
31. Paragraphs 1 and 2 of Schedule 1 to the 1964 Scheme has to be read with paragraph 4(b) in the same Schedule as paragraph 4(b) sets out that:
"the expression "physical injury" includes tuberculosis and any other organic disease, and the aggravation thereof".
32. Article 3(4) and (5) of the 1964 Scheme are in the following terms:
"3.(4) Where a claim under this Scheme other than one specified in the following paragraph of this Article is made, there shall be no onus on the claimant to prove that disablement or death is directly attributable to the relevant qualifying injury or detention and the benefit of any reasonable doubt on those questions shall be given to the claimant.
(5) Where a claim under this Scheme—
(a) in respect of disablement is made more than 7 years after the date of the relevant qualifying injury or end of detention; or
(b) is made in respect of the death of a person, such death having occurred more than 7 years after the date of the relevant qualifying injury or end of detention;
and, upon reliable evidence, a reasonable doubt exists whether the disablement is, or the death was, directly attributable to the relevant qualifying injury or detention, the benefit of that reasonable doubt shall be given to the claimant."
33. Lastly, article 17(1) extends the reach of the (naval) war pension scheme to members of the Merchant Navy (which includes the Royal Fleet Auxiliary) thus:
"Application of the Naval Order
17.-(1) Where the disablement or death of a member of the Merchant Navy is directly attributable to a qualifying injury sustained or detention suffered by reason of his service as a mariner in a British ship, the Naval Order shall apply to his case in accordance with the following provisions of this Article."
Discussion and conclusion
34. Before turning to discuss in more detail the particulars of the grounds of appeal, I start by setting out my overall view and making some more general observations on the appeal.
35. Overall, I consider that when the PATS's decision is read as whole, as it must be, it provides the parties to the appeal and the appellant in particular with an adequate explanation for why the appeal did not succeed; and reading the reasons as a whole includes the PATS's acceptance of the evidence of Dr Madhok. The PATS's explanation for why the appeal did not succeed, in short, was either that the appellant did not have the conditions for which he claimed (including GWI), or, for those conditions which the PATS found he did have, they were not related to service. The appellant may disagree with these conclusions, but, in the absence of the PATS having material erred in law in coming to those conclusions, it is not for the Upper Tribunal to set aside the PATS's decision on the basis that GWI should have been treated as an organic disease or that the PATS was wrong to place weight on the evidence of Dr Madhok. The evaluation of the evidence and the weight to be attached to the evidence was a matter for the expert membership of the PATS.
36. The first general observation concerns what was said by the appellant to be the PATS's wrong reference to "Article 41 of the SPO", at paragraph 62 of its decision. It was argued that the PATS should instead have referred to article 3 of the 1964 Scheme. However, even assuming this was a mistake by the PATS, it was not argued before me that this error had had any material effect on the PATS's application of the law to the evidence and arguments before it.
37. Whether under article 41 of the SPO (i.e., the Naval, Military and Air Forces ETC (Disablement and Death) Service Pensions Order 2006) or under the 1964 Scheme, it was common ground before the PATS and accepted before me that it was for the appellant to establish, on the balance of probabilities, that he had the disablement for which he had claimed: see Royston v The Minister of Pensions 1948 1 All ER 778. That, as the PATS said at paragraph 61 of its decision, was the first question it had to address and answer. The second question, which the PATS asked itself at paragraph 69 of its decision, is whether the conditions it accepted the appellant had were related to service (i.e., causation). It was not disputed before me that the PATS correctly directed itself by way of reference to, amongst other cases, Abdale and others v SSD (WP) [2014] UKUT 477 (AAC); [2015] AACR 20, when addressing that second question. Moreover, where a condition is of unknown aetiology, Coe v Minister of Pensions [1967] 1 QB 238 establishes that if there is evidence that, although the aetiology is unknown, the disease is one which arises and progresses independently of service factors and the fact-finding tribunal is convinced thereby and accordingly refuses a pension, the court should not interfere. The PATS also correctly directed itself as to the effect of Coe, and there is no challenge to it decision in this respect.
38. The second general observation is, accordingly, that the appeal does not challenge the law which the PATS directed itself to apply. Rather, the appeal challenges the PATS's application of that law to the evidence it had before it. The key challenge advanced on the appeal is to the PATS's consideration of the various medical papers it had before it about whether GWI was a qualifying injury (i.e., an organic disease) under the 1964 scheme and whether the appellant was suffering from GWI. That evidential consideration arose under the first question, and it did not proceed to the second question because of the answer the PATS gave to the first question in relation to GWI (and, relatedly, whether the appellant had GWI).
39. The third general observation concerns the change in focus of the appellant's case as it proceeded before the PATS and the Upper Tribunal . The first argument before me, as I have indicated above, covered the first, second and sixth grounds of appeal. In making that argument the appellant through Mr Haddow accepted that there was no error of law in the PATS approach of addressing GWI first before it addressed the symptoms of, for example, depression and memory loss. However, in then arguing about whether the PATS had erred in law in its view (including as set out in paragraph 39 of its decision) that whether GWI exists and whether the appellant had GWI was academic, the appellant accepted before me that if GWI was an injury/organic disease then it was not necessary to consider the individual symptoms (e.g., depression and memory loss). Given what I have said above about it being the PATS, and not the Upper Tribunal, having the fact -finding role, this must mean 'acceptance' and 'consideration' by the PATS. When I then asked Mr Haddow whether this therefore meant it would not have been necessary for the PATS to consider the individual symptoms at all, I understood him to accept this. However, he then qualified this by submitting that the PATS had to consider the individual symptoms as part of whether the appellant had GWI or anything that could be called GWI.
40. As Ms Dewart for the Secretary of State (rightly) pointed out to me, this is a different argument to the one the appellant put before the PATS. The appellant's position before me appeared to be that the only issues the PATS had to decide was whether GWI is an organic disease and whether the appellant had it. At paragraphs 16 and 17 of the appellant's Answer to the Statement of Case to the PATS, his arguments, relevantly, were as follows:
"16......the issues for appeal are:
16.1. Was the Respondent right to decide that the Appellant does not suffer from Gulf War Syndrome, in so far as this is a medical syndrome which can be a qualifying injury under the 1964 Scheme? If the Respondent is wrong about this, does the Appellant suffer from such an illness and is there a causal link to the Respondent's service?
16.2. Was the Respondent right to decide that causation was not established in the case of each of the four conditions suffered by the Appellant?....
17. The Appellant contends that:
17.1. The scientific consensus is now that Gulf War illness ("GWI") is now recognised as a single diagnostic entity whose association with various service factors has been subject to significant and meaningful amounts of medical and scientific research. The tribunal should find that the Appellant has GWI and that he has raised a reasonable doubt that this is attributable to his service in the 1991 Gulf War.
17.2. That the tribunal should find that, in the case of two of the conditions recognised by the Respondent, the Appellant has raised a reasonable doubt that these are attributable to his service in the 1991 Gulf War..."
41. The arguments the appellant made before the PATS therefore separated out the individual symptoms from GWI, rather than subsuming them within GWI. It is not surprising in these circumstances that the PATS structured its decision in the way that it did. Moreover, its decision at paragraph 39 of the decision has to be read in the light of the case or issues the appellant had put before it to decide.
42. Staying with paragraph 39 of the PATS's decision, I cannot identify any material misdirection by the PATS in the counterfactual which it addressed in that paragraph. In circumstances where the PATS was to find (at paragraph 64 of its decision) that the appellant did not have GWI, on the appellant's own case to the PATS the tribunal had to go and decide whether the appellant had the four individual symptoms which he claimed and, if he did, whether they were related to service.
43. With these important observations, I turn to address the grounds of appeal, though what I have said in the immediately preceding paragraph may in large part answer the second ground of appeal.
Whether GWI is an organic disease, was GWI academic and causation (of GWI)
44. As I have indicated above, the appellant took his first, second and sixth grounds of appeal together.
45. The appellant argued under his first ground of appeal that the PATS ought to have treated GWI as an organic disease. Absent a pure perversity challenge, which is not made, that is not an issue of law.
46. The appellant's argument under his first ground of appeal involved a quite detailed consideration of the medical literature which was before the PATS and an argument that the PATs had misunderstood this evidence. There are various flaws and problems with this argument, not the least of which might be said to be the basis on which an error of law tribunal judges whether the expert fact-finding tribunal "misunderstood" the evidence.
47. The key flaw, however, is the failure to locate the PATS's consideration of this medical literature in the context of its acceptance of Dr Madhok's evidence. I will return to this once I have addressed the flaws in the arguments the appellant made about the PAT's approach to the medical literature.
48. The first flaw in the argument is that the PATS plainly did not misunderstand the Fukuda report. That report, as the PATS stated in paragraph 34 of its decision, was designed to provide case or classification criteria not diagnostic criteria. Moreover, the PATS was also right in noting that the introduction to the Fukuda report stated that, in terms of GWI, no specific disorder had been identified and the etiological basis and clinical significance of the symptoms remain unclear. Nor is it open to any reasonable argument that the PATS failed to take into account that the article was from 1998. Paragraph 34 of the PATS's decision expressly stated that the report was published in 1998. The PATS were on the face of it aware that this report was from 1998 and it was rationally entitled to take it into account as part of the history of understanding relating to GWI.
49. The second argument the appellant made about the medical literature concerned how the PATS dealt with the Chen article at paragraph 33 of its decision. The PATS said it had a number of caveats about this report. The most obvious caveat was that the report had a tiny study sample of only 21 patients and as such it was not statistically significant. The PATS considered this could be seen from the underlying hypothesis that such dysfunction was caused by exposure to agents such as carbamates and organophosphates, whereas there was no suggestion of such exposure in the appellant's case and equally there was no evidence the appellant had mitochondrial DNA damage. The PATS finally noted that the Chen article recognised that:
"GWI is a chronic multi-symptom illness not currently diagnosed by standard medical or laboratory test..."
50. The appellant took me to the Chen article and argued by reference to the "(p)" in it that this showed that it did contain statistically significant information. This was another instance of the argument seeming perhaps to move into evidential reargument. Moreover, the PATS may have been using 'statistically significant' in a way different from the statistical sign of (p). Be all of this as it may, I am satisfied that PATS committed no material error of law in its understanding of the Chen article. The PATS in my judgement was entitled to take the view that the report was not relevant evidence in respect of the appellant because, even outwith its small sample of patients (and the statistical significance (or not) of the same), its underlying hypothesis was that mtDNA damage was caused by exposure to carbamates and organophosphates, and there was no evidence of that the appellant had mtDNA damage. Even if, as the appellant argued, the PATS was wrong about him not having been exposed to carbamates and organophosphates, because his evidence was that taking the NAPS tables was equivalent to taking carbamates and organophosphates, that still leaves the article lacking relevance for the appellant because there was no evidence that he had mtDNA damage.
51. In addition, these criticisms by the appellant of the PATS's understanding of the Chen article leaves undisturbed the quotation set out at the end of paragraph 49 above. And the PATS was entitled to take that view expressed in the Chen article into account in deciding whether GWI is an organic disease.
52. The last piece of the medical literature in respect of which the appellant criticised the PATS's approach is the Haley article, which the PATS addressed at paragraph 35 of its decision. As set out above, the PATS found this article lacked relevance to the appellant because of:
"the absence of any evidence that he was exposed to nerve agent during his brief time in theatre. Although the appellant did give evidence that he heard chemical alarms, he did not suggest that there was ever any exposure to agents such as organophosphates."
53. The main criticism the appellant highlighted before about the PATS here is that it was wrong to consider there was no evidence of low level exposure as there may have been a sufficiently low level of exposure which could not be detected alarms. There is nothing in this point, even if it is not just evidential argument. If no alarm could detect the nerve agent then there simply was no positive evidence that the appellant had been exposed to nerve agents. As I understood it, Mr Haddow accepted this, but he argued that this argument and criticism was relevant for the causation, and the 'reasonable doubt' stage of the analysis. This cannot help the appellant either as the PATS having found that GWI is not an organic disease, and that therefore the appellant did not (and could not) have GWI, never got to that stage of the analysis. Putting this another way, the criticism the appellant makes of paragraph 35 in the PATS's decision does not assist him in his arguments about the PATS's approach to whether GWI is an organic disease.
54. These arguments therefore take the appellant no further. However, as I have said above, a crucial omission is the failure to see the PATS's approach to the medical literature in the context of Dr Madhok's evidence.
55. I accept the Secretary of State's argument that the PATS accepted, and was entitled to accept, Dr Madhok's evidence of the importance of having accepted diagnostic criteria in terms of identifying whether something is an organic disease. It was also entitled to take from Dr Madhok's evidence (i) that it was important to distinguish between diagnostic criteria and classification or case criteria, (ii) that there were no accepted diagnostic criteria for GWI, and (ii) that classification criteria cannot be used as diagnostic criteria. It is worth remembering that it was the appellant case to the PATS (see paragraph 40 above) that "GWI is now recognised as a single diagnostic entity". Dr Madhok's evidence plainly stood contrary to that case. Moreover, the medical literature did not stand against this evidence of Dr Madhok.
56. In addition, and focussing on what I have said is the omission in the appellant's argument about the PATS's approach to the medical literature, PATS's approach to that literature has to read in the light of its acceptance of Dr Madhok's evidence. It is in this sense, in my judgement, that the PATS then found that the overall problem with the medical literature was: that no unifying underlying pathology had been identified (paragraph 36 of the PATS's decision); it was wrong to treat classification criteria as diagnostic criteria (para. 37); in the absence of diagnostic criteria, it was difficult for the PATS, in the absence of a medical diagnosis, to find the appellant had GWI (para. 37); and GWI was a diagnosis of exclusion and there were co-existing medical conditions which explained the condition (para. 38). Those were findings the PATS was entitled to take on the totality of the evidence before it.
57. There was an attempt by the appellant to argue in his reply that the PATS ought not to have relied on Dr Madhok's evidence. As far as I could see, these were either arguments that were made to the PATS or should have been made to it. For example, Mr Haddow told me that the appellant had argued before the PATS that Dr Madhok's evidence should be excluded in its entirety but the PATS did not accept this. That was a matter for the PATS to decide. Mr Haddow accepted that he had not made a submission to the PATS that Dr Madhok was giving evidence outside his instructions, but he had argued to the PATS that Dr Madhok was not an expert in GWI. This last point takes the appellant nowhere as paragraph 23 of the PATS's decision shows Dr Madhok accepted that he was not an expert in GWI. In any event, there is no ground of appeal before the Upper Tribunal which argues that the PATS was wrong to allow Dr Madhok to give evidence.
58. I have dealt to some extent with the appellant's second ground of appeal (was the status of GWI academic) at paragraphs 41 and 42 above. I should add to those paragraphs that the appellant's Notice of Appeal to the Upper Tribunal argued, contrary to this case before the PATS, that the PATS was wrong to direct itself as it did in paragraph 39 of its decision. However, in so doing he argued as follows (at paragraph 26 of his Notice of Appeal):
"If GWI is an organic disease and the Appellant demonstrates on the balance of probabilities that he has that condition (which, in the absence of any definitive diagnostic scientific test, will necessarily require consideration of his symptoms), then he need not demonstrate that each individual symptom is caused by his service. The only further necessary step is for the tribunal to consider causation; that is: whether there is a reasonable doubt GWI may be related to his service."
59. I make two observations about this. First, and as I have said before, as the PATS found GWI is not an organic disease, and it therefore must follow that whatever medical conditions or symptoms the appellant had he did not have (indeed could not have) GWI, the issue of whether GWI was related to service did not arise. Second, on the appellant's own argument in the brackets in paragraph 26 of the Notice of Appeal, it is accepted that absent a diagnostic test for GWI, the appellant's individual symptoms would need to be considered. That was the position the PATS reached, and was entitled to reach for the reasons I have given above, and in proceeding as it did it was also answering the case the appellant had expressly asked it to address. In so doing, and in these circumstance, it did not materially err in law in what it set out in paragraph 39 of its decision.
60. Another way of looking at paragraph 39, which comes to the same result, is that having accepted Dr Madhok's evidence, and so accepted that there were no diagnostic criteria for GWI, the PATS had to consider the individual symptoms claimed (e.g., depression and memory loss).
61. As for the sixth ground of appeal and causation, save for the conditional argument made in paragraph 26 of his Notice of Appeal which does not arise and the point I have addressed in paragraph 53 above, the arguments made by the appellant are about the PATS's approach to causation in relation to the individual symptoms which it accepted the appellant had. I will therefore deal with causation in that context later.
Did the appellant meet the criteria for GWI?
62. This is the heading to the third ground of appeal. Again, read alone it asks a question of evidence or fact and is not about whether the PATS erred in law. Furthermore, I struggle to see why this is not simply the reverse of the same coin about whether GWI is an organic disease, to which the PATS answered 'No'. If there is no physical injury or organic disease of GWI for the purposes of the 1964 Scheme, I do not see (error of law arguments apart) on what basis the appellant could have GWI or separately meet the criteria for GWI. This perspective accords with the questions the PATS had directed itself to consider (see paragraph 8 above). There was and is not challenge to those directions. However, point (2) in those directions - 'does the appellant have GWI' - only arose if, under point (1) in the directions - GWI was a physical injury/organic disease under the 1964 Scheme. Having answered that first question with a 'No', on the basis of the directions the question at (2) in those directions simply did not arise. None of the appellant's arguments persuaded me that addressing (and answering) the question whether the appellant had GWI could have any useful content or application if, as the PATS found, GWI was not a qualifying injury under the 1964 Scheme.
63. The appellant argued under the third ground of appeal that the PATS had been wrong to place such weight on the distinction case or classification criteria and diagnostic criteria and that the PATS had misdirected itself that there needed to be diagnostic criteria. For the appellant, case criteria were the best practical definition of GWI. This is no more than a rerun of the arguments I have addressed under the first ground of appeal and, moreover, is no more than evidential reargument. It was for the PATS as the expert fact-finding body (and not the Upper Tribunal) to decide what was needed to decide if something was a physical injury/organic disease, and it was entitled on the basis of Dr Madhok's evidence to decide that diagnostic criteria were needed (but were not in place) to identify a symptom or collection of symptoms as GWI.
64. Another focus of the appellant's argument under the third ground of appeal was on paragraph 37 of the PATS's decision and its statement that "[i]n the absence of diagnostic criteria, it is difficult for a tribunal, in the absence of any medical diagnosis, to make the finding the appellant has GWI". The appellant argued that this was a circular argument as without diagnostic criteria there can be no medical diagnosis. This is not, with respect, a misdirection of the law. As the Secretary of State argued, it is no more than a statement of the obvious.
65. The final argument the appellant made under his third ground of appeal is an argument that the PATS's reliance on a need for diagnostic criteria, and not case criteria, for GWI was, so the appellant argued, fatally undermined by the evidence before it relating to CFS. As I understood the argument, it is that CFS is recognised as an organic disease but identifying whether someone has CFS depended on applying case, and not diagnostic, criteria. Again, this has all the flavour of evidential reargument, and one which may well be based on a misunderstanding of the role the "synopsis of causation" plays in the Secretary of State's determination of war pension claims, including those with CFS.
66. Evidential reargument concerns apart, the PATS had Dr Madhok's evidence before it, he was an expert in CFS, and his evidence was that CFS is a "psychosocial disorder" (paragraph 26 of the PATS's decision) and that there is a diagnosis for it which did not apply in the appellant's case (paragraph 67). On that evidence the PATS was entitled to proceed on the basis that there was not an analogy between GWI and CFS.
67. The argument of the appellant here depends on reading paragraph 38 of the PATS's decision in isolation and as the sole determinant for its finding that GWI is not an organic disease (and that the appellant did not have GWI). That approach is not correct. It ignores paragraph 37 of the decision and the preceding paragraphs and most particularly Dr Madhok's evidence in 24 that there are no accepted diagnostic criteria for GWI and that classification (or case) criteria cannot be used as diagnostic criteria. Nothing in Dr Madhok's evidence, moreover, was to the effect that case criteria are used for identifying if someone has CFS.
The PATS's findings relating to cognitive difficulties and loss of libido
68. I approach the fourth and fifth grounds of appeal with some circumspection because Mr Haddow accepted before me that if I was to decide against the appellant on the GWI grounds of appeal, as I have, the fourth and fifth grounds of appeal were not separate material errors of law grounds. Given this, I will address them somewhat briefly.
69. I also bear in mind in relation to these grounds, and the sixth ground of appeal, the appellant's stance that the individual symptoms he claimed were (only) relevant to deciding whether he had GWI. If that remained his position, and given I have found the PATS was entitled to find the appellant did not have GWI (as there is no such organic disease), the relevance of these grounds may at least be questionable.
70. The appellant uses the term 'cognitive difficulties' to cover memory loss and depression. He argued that the PATS's reasoning was not adequate to explain why it had found he did not suffer from depression or memory loss. The key to appellant's argument is paragraph 55 of the PATS's decision, in which it found that in 2009 the appellant's GP noted that there was no record of depression or memory loss. It is said that what was found in paragraph 55 also applied to loss of libido, but the PATS did accept the appellant as having loss of libido. It is argued that this was contradictory and needed further explanation. The short answer to this is that the PATS's finding that the appellant had loss of libido was not just based on the medical records (see paragraph 65 of the PATS's decision). In any event, the premise for this argument is not sound as the PATS found that the loss of libido (i.e., the lack of sex drive) was evidenced in the GP records and the investigation at the urology department (see again paragraph 65 of the PATS's decision). Given this, in my judgement the reasons the PATS gave at paragraphs 55, 56 and 68 adequately explained why it did not accept the appellant had memory loss or depression. Even if this was not the case, no material error of law would have arisen given the appellant's acceptance before the PATS that he could not raise a reasonable doubt that any depression and memory loss had been caused by a war injury or war risk injury.
71. The fifth ground of appeal is about loss of libido and impotence and is really an argument about causation. The PATS accepted that the appellant had the physical injuries of loss of libido and impotence. However, as set out in paragraph 20 above, it concluded that there was a clear alternative cause for these set out in Dr Shennan's letter, which had nothing to do with service and related to the appellant having had cervical surgery in 1995. Moreover, given the appellant had not had any acute symptoms in relation to any of the claimed stressors (such as smoke exposure) in service (see further paragraph 20 of the PATS's decision), there was no plausible explanation of how those stressors could have caused the loss of libido and impotence many years later. As such, the PATS found there was no reasonable doubt that the loss of libido and impotence were attributable to service.
72. The appellant argues that in coming to this conclusion the PATS left out of account evidence that would have passed the reasonable doubt threshold and that in consequence the reasoning of the PATS did not add up. There is no merit in my judgement in this argument. The reasoning of the PATS is clear in paragraph 78: the obvious cause was the cervical surgery in 1995 and nothing in the appellant's service raised a reasonable doubt against this.
Causation and smoke exposure
73. The sixth ground of appeal concerns the seventh question the PATS had been directed to consider by the directions of 23 April 2023. I did not set out the fifth to seventh questions of those directions in paragraph 8 above. Those questions read:
"5. Does the appellant have Chronic Fatigue Syndrome and/or loss of libido and/or impotence?
6. If so, is there a reasonable doubt that all or any of those conditions is related to service?
7. In particular, is there a reasonable doubt that those conditions are caused by (i) exposure to smoke; and/or (ii) the administration of vaccines?"
74. Having found that the appellant did not have GWI, CFS, or depression and memory loss, the issue of whether these claimed for conditions were caused by service did not arise, and so the question of whether they were caused by smoke exposure in service likewise did not arise. Nor was the administration of vaccines in issue on this appeal at all, as it remains to be decided on the other appeal which has been sisted.
75. The appellant's argument in his Notice of Appeal is that the PATS should have limited itself to asking itself the questions at points 3 and 6 in the 23 April 2023 directions. If that is the argument, then the PATS asked (and answered) question 6 in relation to loss of libido, and I have decided that it did not err in law in so doing. On the appellant's case it ought not to have also asked itself question 7 in relation to loss of libido, but I do not identify any material error of law in its having done so. The PATS's analysis in paragraph 78 of its decision on the face of it wrapped questions 6 and 7 together and looked at service factors outside of smoke exposure. The directions did not ask the same question(s) in relation to severe muscle and joint pain, but there is no ground of appeal before me concerning that claimed for condition. In any event the PATS also addressed the reasonable doubt issue in relation the muscle and joint pain and whether they were related to service. And the PATS did not answer questions 3 and 4 in relation to GWI, but that is because it decided the appellant did not have GWI, and so those questions did not apply.
76. This then left an argument, as I understood it, about whether the PATS had been limited by directions (at page 954 of the PATS bundle) not to consider wider service related factors. This seemed a somewhat arid argument. The PATS directed itself on the directions dated 23 April 2023. No error of law challenge was or is made about those directions. On their face those directions only gave smoke exposure as one particular potential service cause (at questions 4 and 7) and did not restrict consideration to service causes more generally (see questions 3 and 6). And, as I have said above, no material error of law arose from the PATS looking at smoke exposure as part of all potential service related causes more generally.
Conclusion
77. For the reasons given above, the PATS made no material error of law in its decision of 13 October 2023 and the appeal is, accordingly, dismissed.
Stewart Wright
Judge of the Upper Tribunal
Authorised for issue on 25 June 2025
[2025] UKUT 140 (AAC)
Appeal No. UA-2023-001520-AFCS
IN THE UPPER TRIBUNAL
ADMINISTRATIVE APPEALS CHAMBER
Between:
CRP
Appellant
-v-
Secretary of State for Defence
Respondent
Before: Upper Tribunal Judge Mitchell
Decided on consideration of the papers
Representation:
Appellant: Peter Collins (Royal British Legion case adviser)
Respondent: Veterans UK in-house advisory team
On appeal from:
Tribunal: First-tier Tribunal (War Pensions and Armed Forces Compensation Chamber)
Tribunal Case No: AFCS/00825/2022
Tribunal Venue: London (Fox Court), remote hearing via video-link
Decision Date: 31 January 2023
SUMMARY OF DECISION
56 war pensions and armed forces compensation
56.1 war pensions - entitlement
Judicial summary
The Upper Tribunal rejects the Secretary of State for Defence’s argument that the interpretation of item 2 of Table 9, in Schedule 3 to the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011, given by the Upper Tribunal in MD v Secretary of State for Defence (AFCS) [2015] UKUT 298 (AAC), should not be followed. MD’s interpretation was not objectionable due to unfairness nor was it liable to lead to absurd consequences. However, the appeal succeeded because the First-tier Tribunal failed to give adequate reasons for its decision. The Tribunal should have explained why it found that osteoarthritis was not a qualifying injury under item 2, as interpreted in MD.
Please note the Summary of Decision is included for the convenience of readers. It does not form part of the decision. The Decision and Reasons of the judge follow.
DECISION
The decision of the Upper Tribunal is to allow the appeal.
(1) The decision of the First-tier Tribunal, taken on 31 January 2023 under case reference AFCS/00825/2022, involved an error on a point of law. Under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007, the Upper Tribunal sets aside the First-tier Tribunal’s decision.
(2) Subject to paragraph (3) below, under section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007, the Upper Tribunal re-makes the First-tier Tribunal’s decision as follows:
(a) CRP’s appeal against the Secretary of State for Defence’s decision of 9 March 2022 succeeds, and the Secretary of State’s decision is set aside;
(b) The Secretary of State’s decision is replaced by a decision that CRP satisfies item 2B of Table 9, in Schedule 3 to the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011, and is entitled to a Level 9 tariff award in accordance with the terms of that Order.
(3) Paragraph (2) above is disapplied if, within one month of the date on which this decision is issued, the Upper Tribunal receives the Secretary of State for Defence’s written, reasoned objections to the Upper Tribunal re-making the First-tier Tribunal’s decision as set out in paragraph (2).
(4) If the Upper Tribunal receives the Secretary of State’s written objections in accordance with paragraph (3) above, this case is to be referred back to Upper Tribunal Judge Mitchell.
REASONS FOR DECISION
Introduction
Terminology
1. These reasons refer to various medical terms that appear in the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011. Article 62(3) of the Order provides that, “where any decision required to be made under this Order is, or includes, a decision involving a medical issue” the decision is to be made “in accordance with generally accepted medical and scientific knowledge prevailing at the time the decision is made”. My understanding is that prevailing, generally accepted medical and scientific opinion ascribes the following meanings to the following medical terms:
- arthrodesis: “the fusion of bones across a joint space by surgical means, which eliminates movement” (Oxford Concise Medical Dictionary, 8th edition);
- osteoarthritis: “osteoarthritis (OA) is a syndrome of joint pain associated with structural deterioration of synovial joints that over time involves the whole joint organ. It is the most common form of arthritis” (Oxford Textbook of Medicine, 6th edition);
- “osteotomy”: “a surgical operation to cut a bone in two parts, followed by realignment of the ends to allow healing” (Oxford Concise Medical Dictionary, 8th edition);
- septic arthritis: “Septic arthritis (or infective arthritis) is the most serious cause of one or more hot swollen joints. A causative organism can be identified in about 80% of cases, with Staphylococcus aureus the most common, followed by Streptococcus and gram-negative organisms.” (Oxford Textbook of Medicine, 6th edition).
2. The word “pathology” also features in the 2011 Order. The current Oxford Dictionary of English defines “pathology”, as used in medicine, as “pathological features considered collectively; the typical behaviour of a disease”, and “pathological”, as used in medicine, as “involving or caused by a physical or mental disease”.
3. In these reasons:
- “2011 Order” means the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011;
- “CRP” refers to the Appellant.
Factual Background
CRP’s claim
4. CRP’s claim form described his injury as “left and right hip…Femoroacetabular impingement syndrome…medium level arthritis”, “medium level arthritis” in both hips and “Rectus Femoris Tear on left hip”. It seems that CRP subsequently withdrew the claim, or appeal, relating to his right hip. The claim form described the incident giving rise to the first described injury as “8 years of infantry training and service” and the second injury as having that cause as well as “injury whilst training in 2014 created long term imbalance in hips”.
5. CRP’s claim form stated that he was awaiting treatment, described as “for left hip arthroscopy, labral repair/debridement, and femoral neck osteoplasty”.
6. The Secretary of State initially refused to make any award on CRP’s claim. On 9 March 2022, however, Veterans UK informed CRP that he was entitled to a lump sum payment of £6,180 because he satisfied the descriptor in item 27, Table 9 in Schedule 3 to the 2011 Order (“hip…strain, sprain or overuse injury, which has required, or is expected to require, operative treatment”).
Medical and other evidence
7. The medical evidence within the First-tier Tribunal bundle included:
(a) 20 September 2021, MRI imaging report: “CONCLUSION / RECOMMENDATION: 1. On the left there are early OA [osteoarthritis] changes secondary to a CAM type of femoral acetublar impingement”;
(b) 23 September 2021, orthopaedic registrar letter: “an image guided steroid injection into the left hip to confirm this is the source of his pain prior to an arthroscopy with osteoplasty would be a good starting point”;
(c) 8 October 2021, consultant orthopaedic surgeon letter: “radiographically he certainly does have evidence of osteoarthritis with rather significant osteophyte formation in the left hip. I have explained the significance of the diagnosis in a man of his age in his career”;
(d) 13 October 2021, consultant orthopaedic surgeon letter: “Management plan: 1. For left hip arthroscopy, labral repair/debridement, and femoral neck osteoplasty…it is reasonable to consider arthroscopic hip surgery…the goals of surgery would be assessment and repair/debridement of the labrum, assessment and management of any unstable chondral injuries and reshaping of the femoral head/neck junction to improve the cam morphology…surgery is primarily performed to try to improve his symptoms now rather than to prevent future degenerate change in the hip…[CRP] feels he cannot carry on how he is and is keen to try anything to avoid having a hip replacement at the moment”;
(e) 9 December 2021, post-operative note: “Findings. Significant acetabular chondral injury with extensive delamination with exposed bone zone 1 and 2 - one third to two thirds distance from acetabular rim to cotyloid fossa. Unstable labrum zone 1. Massive cam and osteophyte postero-lateral, lateral and anterolateral femoral head neck junction”;
(f) 28 March 2022, entry in medical notes: “Has had consult with surgeon - concerning comments like expecting ‘lifelong problems’ and ‘shouldn’t run / TAB for a year post op’”;
(g) 5 April 2022, consultant orthopaedic surgeon letter: “discussion about the longer term picture for his hip and he does understand he is at a significantly increased risk of needing a hip replacement at some point. I did explain that it might take as long as 6 months to a year after keyhole surgery to really see how much recovery the hip is going to have and what it is going to allow him to do”
(h) 9 May 2022, entry in medical notes: “Hip arthroscopy on 09.12.21…: Rim exposed. Prominent rim section recessed with high speed burr. Two Speedlock anchors to stabilise labrum. Chondroplasty to most unstable parts of cartilage. T capsulotomy to expose femoral neck…Has had minimal recent rehab due to stopping exercises whilst on a career course (sedentary). Worse with this rest. Currently desk bound…Struggles with driving, baby changing and other ADLs - shoes and socks etc. Pain and restless legs affecting sleep. Takes codeine ON PRN but not seen MO regarding any other analgesia”;
(i) 22 July 2022, consultant orthopaedic surgeon letter: “long discussion today about his hip and his options moving forward. He is awaiting an intra-articular injection at DMRC which I think is an entirely appropriate next step. Hopefully this will allow him to engage further with his rehabilitation exercises…We did also talk about arthroplasty today. He does understand that both radiologically and intraoperatively he had significant chondral injury, and that this may well be the cause of his ongoing symptoms”;
(j) 24 September 2022, Army doctor’s letter: “now listed for a total hip replacement”;
(k) 26 September 2022, radiology report: “Left hip: Marked femoroacetabular cartilage damage which is full-thickness superolaterally and anteriorly with associated superior and anterior subchondral oedema and cystic change. There is left CAM morphology with subcortical oedema and cystic change and acetabular over coverage, suggestive of femoroacetabular impingement. The femoral head contour and subchondral bone is otherwise preserved. The anterior and anterosuperior labrum is degenerate with chondrolabral separation and a further radial tear within the body of the labrum. There is adjacent encysted fluid with septations measuring up to 3.8 cm, more in keeping with an intra-articular paralabral cyst rather than joint effusion. The posterior labrum is also mildly degenerate. Mild iliopsoas tendinopathy with fluid distension of the iliopsoas bursa suggestive of bursitis”.
8. On 21 September 2022, CRP emailed Veterans UK as follows:
“Since my last correspondence 2 surgeons…have agreed that my previous surgery was not hugely successful and that the next step is a full hip replacement of my left hip. The exact date of which is being organised”.
9. According to the First-tier Tribunal’s reasons for its decision, CRP had a total left hip replacement in December 2022.
First-tier Tribunal’s decision
10. By notice of appeal dated 17 March 2022, CRP appealed to the First-tier Tribunal against the Secretary of State’s decision. CRP’s notice of appeal mainly described the professional and financial consequences of his injury and associated treatment, but also wrote that a diagnosis of arthritis for a person in his circumstances was “extremely abnormal and life changing”. CRP’s appeal was really about the classification of his injury under the tariff in Schedule 3 to the 2011 Order.
11. The First-tier Tribunal:
(a) rejected CRP’s argument that the descriptor in item 2 of Table 8 applied. That descriptor required fracture or dislocation of a hip, but the Tribunal found that CRP suffered no (or no relevant) fracture or dislocation (paragraph 4 of the Tribunal’s reasons);
(b) instructed itself that, under Upper Tribunal authority, the term “other pathology” in item 2 of Table 9, was “defined as “an infection or disease akin to septic arthritis”” (paragraph 5);
(c) recorded CRP’s representative’s concession that he did not have an infection or disease akin to septic arthritis;
(d) allowed CRP’s appeal to the extent that the correct tariff entry was that in Table 9, item 16D, level 12, which refers to “Hip…strain, sprain or overuse injury with confirmed significant osteochondral defect, and which has required or is expected to require operative treatment”. The tariff amount for a level 12 injury is £10,300.
Legal framework
Armed Forces and Reserve Forces (Compensation Scheme) Order 2011
12. Article 2(1) of the 2011 Order defines “tariff” as “the tables of injuries and amounts set out in Part 1 of Schedule 3”, and “tariff level” as “the level of the tariff specified in column (a) of Tables 1 to 10 of Part 1 of Schedule 3”. Article 2(1) defines a “descriptor” as “a description of injury in column (b) of Tables 1 to 9 of the tariff. Article 16(2) provides that “the descriptors give rise to entitlement at the corresponding tariff level”.
13. Article 5 of the 2011 Order contains rules for the interpretation of the descriptors in Schedule 3 to the Order:
(1)…a descriptor is to be construed as encompassing the expected effects of the primary injury and its appropriate clinical management, short of a discrete diagnosable disorder, including, but not limited to—
(a) pain and suffering due to the primary injury;
(b) the effect of operative intervention, including pain, discomfort and scarring;
(c) the effect of therapeutic drug treatment;
(d) the use of appropriate aids and appliances;
(e) associated psychological effects short of a discrete diagnosable disorder.
[…]
(8) The term “operative treatment” means surgical intervention intended to investigate or treat but excludes insertion of sutures under local anaesthetic, acupuncture, facet or other joint injection or minor dental procedure.”
14. The benefits payable for injury, set out in article 15(1) of the 2011 Order, include “a lump sum”. Schedule 3 has effect for the purposes of determining “the descriptor”, “the tariff level” and “the amount of a lump sum” (article 15(2)I).
15. Article 60(1) of the 2011 Order provides that, subject to the following provisions of that article, “the burden of proving any issue is on the claimant”. The exception to this general rule concerns cases where a contemporary official record relating to a material fact is missing.
16. Article 62(3) of the 2011 Order provides as follows:
“(3) Where any decision required to be made under this Order is, or includes, a decision involving a medical issue, that decision is to be made in accordance with generally accepted medical and scientific knowledge prevailing at the time the decision is made.”
17. Table 8 in Schedule 3 to the 2011 Order is headed “Fractures and dislocations”, and includes the following entry:
Item
Column (a)
Level
Column (b)
Description of injury and its effects (“descriptor”)
2
9
[the Level 9 tariff amount is currently £41,200]
Fracture or dislocation of one hip…which has required, or is expected to require, osteotomy or total joint replacement
18. Table 9 in Schedule 3 to the 2011 Order is headed “Musculoskeletal disorders”, and includes the following entries:
Item
Column (a)
Level
Column (b)
Description of injury and its effects (“descriptor”)
2
9
[the Level 9 tariff amount is currently £41,200]
Septic arthritis or other pathology requiring arthrodesis, osteotomy or partial or total joint replacement.
2B
9
Septic, rheumatoid or post traumatic arthritis requiring arthrodesis, osteotomy or total joint replacement.
[“post traumatic arthritis” is defined as “arthritis which is secondary to a significant traumatic injury which was documented in the medical records at the time it occurred”]
16D
12
[the Level 12 tariff amount is currently £10,300]
Hip…strain or overuse injury with confirmed significant osteochondral defect, and which has required or is expected to require operative treatment.
25
13
[the Level 13 tariff amount is currently £6,180]
Radiologically confirmed osteoarthritis of hip…(caused by repetitive or attrition injury) causing permanent significant functional limitation or restriction.
27
13
Hip…strain, sprain or overuse injury, which has required, or is expected to require, operative treatment.
Pensions Appeal Tribunals Act 1943
19. Section 5B of the Pensions Appeal Tribunals Act 1943 provides as follows:
“In deciding any appeal under any provision of this Act, the appropriate tribunal—
…(b) shall not take into account any circumstances not obtaining at the time when the decision appealed against was made.”
MD v Secretary of State for Defence (AFCS) [2015] UKUT 298 (AAC)
20. There were two Appellants in MD, both with back injuries. One Appellant sustained lower back injuries in two separate IED explosions while serving in Afghanistan, which required spinal fusion surgery. The other suffered a disc prolapse while serving in Iraq, and also required spinal fusion surgery.
21. MD was decided by Upper Tribunal Judge Wikeley following a hearing at which all parties were represented, in the Secretary of State’s case by counsel. The legal issue was the correct interpretation of the descriptor in item 2 of Table 9. Judge Wikeley:
(a) recorded counsel’s concession that item 2 was “unhappily worded in that it lacked clarity and precision, especially as regards the use of the word ‘pathology’” (paragraph 13 of the judge’s reasons);
(b) said that the definition of pathology in Black’s Medical Dictionary - “the science which deals with the causes of, and changes produced in the body by, disease” - was “indeed the primary meaning of the word” but it could not bear that meaning in item 2. A ‘science of knowledge’ cannot itself require joint replacement (paragraph 13);
(c) the secondary meaning of ‘pathology’, referred to by counsel, denotes “the process or pathways of a given disease”. Again, this made “no real sense” if applied to item 2 (paragraph 13);
(d) found that item 2 must use ‘pathology’ in its third sense “as a deviation from an otherwise healthy or normal condition, and so meaning (putting it neutrally) some abnormality” (paragraph 13);
(e) described the issue as whether, in item 2, ‘other pathology’ bore a broad or narrow meaning (paragraph 14). The broader meaning, advanced by the Appellants, was that item 2 should be construed to mean ‘septic arthritis or any other pathology requiring arthrodesis [etc]’. The Secretary of State argued that item 2 should be construed as if it read ‘septic arthritis or any similar or related pathology requiring arthrodesis [etc]’;
(f) found that the language used to describe item 2 was “undoubtedly ambiguous” and “on a literal reading it could be read either way”. Hence, it was necessary to have regard “both to the context and the purpose of the statutory drafting” (paragraph 17);
(g) considered that the context involved particular and general aspects. A particular consideration was that “or other pathology” immediately follows “septic arthritis” and “so take their colour from and are qualified by that medical condition”. The purpose of ‘other’ “is to make the link between septic arthritis and what follows”. The Appellants’ construction was objectionable because it effectively involved ignoring the word ‘other’ (paragraph 18);
(h) found that the general context “requires consideration of the Tariff as a whole”. It is a very detailed code which makes specific provision elsewhere for traumatic back injuries (paragraph 19). A further relevant general consideration was the “underlying purpose of the Scheme”:
“20…The complex matrix of Tables, Items and related levels in Schedule 3 is intended to ensure that the most serious injuries receive the higher levels of compensation. The descriptors are said to represent a ‘Description of injury and its effects’. If “or other pathology” is read to mean “or any pathology”, whether or not it is related to or similar to septic arthritis, then the reference to septic arthritis itself loses any real purchase. The descriptor for Item 2 of Table 9 might just as well say simply “Any pathology requiring arthrodesis, osteotomy or total joint replacement.” On that basis “septic arthritis” is mere surplusage. In that event, the nature of the underlying condition becomes irrelevant, and the sole focus is on the nature of the treatment required, which in turn may be a very poor guide as to the severity of the effects of the condition in question. As [counsel for the Secretary of State] argued, that cannot be consistent with the purpose of the Scheme.”
22. In conclusion, the Upper Tribunal accepted the Secretary of State’s submissions as to the construction of item 2. That is, item 2 was to be construed as if it referred to ‘septic arthritis or any similar or related pathology requiring arthrodesis [etc]’.
Grounds of appeal and the parties’ submissions
Grounds of appeal
23. The Upper Tribunal granted CRP permission to appeal against the First-tier Tribunal’s decision on the following grounds:
(1) arguably the Tribunal misdirected itself in law because it thought that the interpretation of item 2 in Table 9 was addressed by the Upper Tribunal in TH v Secretary of State for Defence (AFCS) [2017] UKUT 309 (AAC). However, TH concerned a claim brought by a service member who contracted meningitis while based at the Catterick Garrison, and had nothing to do with item 2;
(2) the Upper Tribunal’s decision in MD v Secretary of State for Defence (AFCS) [2015] UKUT 298 (AAC), which the Tribunal had probably meant to cite, and which did concern item 2, was arguably ambiguous. Iin paragraph 3 of the Upper Tribunal’s reasons it said, for reasons that would follow, it agreed with the Secretary of State’s argument that item 2 was to be construed as “some other infection or disease such as septic arthritis”. However, in paragraph 21 the Upper Tribunal again agreed with the Secretary of State, but, here, the argument was described as being that item 2 should be construed as “septic arthritis or any other similar or related pathology”;
(3) arguably MD could be distinguished because it involved Appellants whose injury was a traumatic back/spinal injury rather than any form of arthritis;
(4) arguably, the purposes of the 2011 Order might not be served by a construction of item 2 that applies to one type of service-related arthritis (septic arthritis) leading to joint replacement but excludes another type (osteoarthritis) when both conditions will, of necessity, be related to service and have exactly the same effect on the service member namely partial or total joint replacement;
(5) despite CRP having been professionally represented before the Tribunal, arguably the Tribunal’s acceptance of CRP’s representative’s concession in relation to item 2 involved legal misdirection. This point was described as follows in the Upper Tribunal’s permission determination:
“I was initially minded to refuse [CRP] permission to appeal because he was represented before the First-tier Tribunal by a representative who, quite clearly, accepted that Table 9, item 2 did not apply to the Appellant. Normally, a party must accept the consequences of a concession made by his legal representative and the question whether the concession was well-advised or ill-advised is immaterial…it is just possible that [CRP’s] representative was misled by the Tribunal’s incorrect case reference so that it was unfair to rely on the resultant concession, but I reject that possibility. I shall take the First-tier Tribunal’s reasons at face value and proceed on the basis that it asked [CRP’s] representative whether his case was that [CRP] had an infection or disease akin to septic arthritis. Arguably, this was a more restrictive formulation than either of those approved by the Upper Tribunal in MD. On that basis, arguably the First-tier Tribunal misdirected itself in law which led it to ask [CRP’s] representative the wrong question and thereby elicit a flawed concession. I grant permission to appeal on that ground.”
(6) the First-tier Tribunal judge who refused the Appellant permission to appeal to the Upper Tribunal recorded that the First-tier Tribunal found that osteoarthritis was not a pathology similar to septic arthritis. Arguably, the First-tier Tribunal gave inadequate reasons for its decision because it failed to explain why osteoarthritis was not a pathology similar to septic arthritis.
Secretary of State for Defence’s submissions
24. The Secretary of State supports this appeal. His representative argues that the ratio (dispositive finding of law) of MD is unclear, and “would also suggest that there is a further need for clarity on this issue in light of legislative amendments having altered the statutory context in which the descriptor is to be interpreted since the decision in MD”.
25. In an apparent departure from the case advanced in MD, the Secretary of State now argues that ‘other pathology’, in item 2 of Table 9, should be “widely interpreted, without importing any requirement for infection, and the focus when determining the most appropriate descriptor should be on the consequences of the claimed injury (i.e. whether it has required arthrodesis, osteotomy, partial or total joint replacement)”.
26. In 2019, item 2B was added to Table 9 and, like item 2, also attracts a Level 9 award, but, according to the Secretary of State’s representative, “unfortunately, the addition of Item 2B compounded the lack of clarity highlighted in MD v SSD surrounding the Table 9 descriptors by creating inconsistencies between descriptors that attract the same level of award. For example, one descriptor equates partial and total joint replacement [item 2], whereas another at the same level [item 2B] excludes partial joint replacement.”
27. The Secretary of State also agrees with the provisional observation made in the Upper Tribunal’s permission determination that “it is not immediately obvious…why one type of service-related arthritis (septic arthritis) leading to joint replacement should satisfy the tariff entry, but another (osteoarthritis) should not. Both conditions are caused by service and have exactly the same consequence for the service member namely partial or total joint replacement.”
28. The Secretary of State’s proposed solution to the apparent exclusion of osteoarthritis as a qualifying item 2 injury is to “adopt a purposive approach to the interpretation of these descriptors to find that the correct construction of the Item 2 descriptor is the one which produces the fairest outcomes, even if this requires deviation from the analysis and decision in MD”. This is consistent with the presumption that Parliament does not intend to legislate for absurdity (Edison First Power Ltd v Central Valuation Officer [2003] UKHL 20, [2003] 4 All ER 209). It also accords with “the scheme’s underlying principles, the first of which is fairness” and so, in order to achieve a fair outcome, the term ‘pathology’ should be widely interpreted, without importing any requirement for infection, and the focus should be on the consequences of the injury. This approach would also be consistent with the interpretative rules in article 5 of the 2011 Order.
29. The Secretary of State invites the Upper Tribunal to allow this appeal, set aside the First-tier Tribunal’s decision and replace it with a decision that “the most appropriate tariff descriptor for the appellant’s condition is Table 9, Item 2, level 9”.
Appellant’s submissions
30. In reply to the Secretary of State’s written submissions, CRP’s representative informs the Upper Tribunal that “we have nothing to add to the Secretary of State’s position”.
Hearing
31. Neither party requests a hearing of this appeal, and I am satisfied that I am able fairly to decide the appeal on the parties’ written submissions.
Analysis
What was decided by MD?
32. I shall first identify the ratio (dispositive finding of law) of the Upper Tribunal’s decision in MD. At paragraph 3 of the judge’s reasons, he said that he agreed with the Secretary of State’s interpretation of item 2 of Table 9, which had just been described in paragraph 2 as construing ‘other pathology’, in item 2, as if it read “some other infection or disease such as septic arthritis”. That initial agreement was given “for the reasons that follow”. The reasons that followed were in paragraphs 18 to 20 in a section headed ‘The Upper Tribunal’s conclusions’. Here, the Secretary of State’s argument was said, in paragraph 17, to be that, in item 2, the words “septic arthritis or other pathology requiring arthrodesis [etc]” were to be read as “septic arthritis or any other similar or related pathology requiring arthrodesis [etc]”. In paragraphs 18 to 20, the judge explained why he preferred the Secretary of State’s argument to that of the Appellants.
33. Since reasoning provides the foundation for the ratio of a judicial decision, the Upper Tribunal’s ratio in MD must be that which emerged from the analysis in paragraphs 18 to 20 of the judge’s reasons. While paragraph 3 of the reasons was not styled as a summary, that was its effective purpose. It was not itself the ratio for the judge’s decision. To the extent that the summary was inconsistent with the ratio (or the reasoning from which the ratio emerged), it is ineffective as a proposition of law. The ratio of MD was that item 2 in Table 9 is to be read as ‘septic arthritis or any similar or related pathology requiring arthrodesis [etc]”. The ratio was not that, in item 2, ‘other pathology’ is to be read as ‘some other infection or disease such as septic arthritis’
Interpretation of item 2
34. Column (b) of Table 9, in Schedule 3 to the 2011 Order, is headed “description of injury and its effects (“descriptor”)”. In other words, a descriptor is a combination of two things - a specified injury (or injuries) and the injury’s specified effects. In the case of item 2, the specified injuries are “septic arthritis or other pathology”. The specified effects are “requiring arthrodesis, osteotomy or partial or total joint replacement”.
35. Osteoarthritis is the most common form of arthritis (see the medical definition in paragraph 1 of these reasons). And I do not think one needs to be a doctor to say with confidence that a significant part of the UK’s population suffers from osteoarthritis. Septic arthritis, by contrast, is rare with a reported incidence of between four to twenty-nine cases per 100,000 patient years (McBride S, Mowbray J, Caughey W, et al. Epidemiology, management, and outcomes of large and small native joint septic arthritis in adults. Clin Infect Dis. 2020; 70(2):271-279). Why, then, did the legislator decide, when framing item 2 in Table 9, to refer to only one type of arthritis, being one that is rarely encountered and normally associated with a causative organism? It was either a conscious legislative decision or a mistake. Given the prevalence of forms of arthritis, in particular osteoarthritis, other than septic arthritis, I do not think it could have been a mistake.
36. The ejusdem generis principle of statutory interpretation is described as follows, at p.1231 of the fifth edition of Bennion on Statutory Interpretation:
“The Latin words ejusdem generis (of the same kind or nature), have been attached to a principle of construction whereby wide words associated in the text with more limited words are taken to be restricted by implication to matters of the same limited character. The principle may apply whatever the form of the association, but the most usual form is a list or string of genus-describing words followed by wider residuary or sweeping-up words.”
37. According to Bennion, at p.1238, “a rule that two or more genus-describing words are always required would be too rigid. The question is invariably one of the intention conveyed by the entirety of the passage…the ejusdem principle should be applied in the one-word case in recognition of the fact that the drafter must have specified the word for some purpose”. For instance, in Parkes v Secretary of State for the Environment [1978] 1 WLR 1308, the Court of Appeal held that, in the phrase ‘building or other operations’ in the Town and Country Planning Act 1971, the other operations must be read as akin to building.
38. In my judgment, the legislator enacted the words “septic arthritis or other pathology” with the intent of limiting the category of other qualifying pathologies by reference to septic arthritis’ particular characteristics. I see no other logical reason for beginning the description of the relevant injury with a reference to a form of arthritis that is rarely encountered. The legislator could have described the relevant injury by reference to the very common form of arthritis, osteoarthritis, instead of septic arthritis but chose not to do so. To use Bennion’s words, the choice made by the legislator shows that it intended to limit the scope of ‘other pathology’ by reference to ‘matters of the same limited character’. In other words, I agree with Upper Tribunal Judge Wikeley’s construction of item 2 in MD.
39. The Secretary of State now invites the Upper Tribunal, by reference to 'fairness’, to ignore the choice made by the legislator when framing item 2, depart from MD, and interpret item 2 in Table 9 by focussing on ‘the consequences of the injury” (i.e. whether the service member requires arthrodesis etc). That stretches the statutory wording beyond the range of reasonable interpretations that they are capable of bearing notwithstanding the overall aims and purpose of the compensation scheme provided for by the 2011 Order. The Secretary of State’s interpretation effectively ignores Table 9’s definition of a descriptor (a specified injury with specified effects). Under this interpretation, if a service member requires arthrodesis etc. for a service-related reason, it is to be assumed, in the interests of fairness (as that concept is understood by the Secretary of State), that the member has a qualifying injury and therefore satisfies item 2. This is a back-to-front way of dealing with what is really a policy issue. Statutory interpretation seeks to identify the legislator’s intention and, if that intention is clear, there is no room for recourse to some general conception of fairness. If, as a matter of policy, the Secretary of State considers that the 2011 Order, construed according to established principles of statutory interpretation, produces an outcome considered unfair, the answer is not to ask the Upper Tribunal to ignore those principles but to bring forward an amendment to the 2011 Order in order to cure the perceived unfairness.
40. The Secretary of State also argues that Judge Wikeley’s interpretation in MD gives rise to an absurdity. It is unusual for a Government Department to argue that legislation promoted by itself is absurd, but it is nevertheless open to the Secretary of State to make the argument which, in the present context, is an argument that it is absurd for a compensation scheme to treat service members differently according to the reason why they require arthrodesis etc. In Edison First Power Ltd, Lord Millet, at [117] said:
“The courts will presume that Parliament did not intend a statute to have consequences which are objectionable or undesirable; or absurd; or unworkable or impracticable; or merely inconvenient; or anomalous or illogical; or futile or pointless. But the strength of these presumptions depends on the degree to which a particular construction produces an unreasonable result. The more unreasonable a result, the less likely it is that Parliament intended it…”.
41. A legislator is entitled to enact absurd legislation but, when an enactment falls to be construed, it is to be assumed to be unlikely that the legislator intended to enact an absurdity. So, does MD’s construction of item 2, in Table 9, give rise to absurd consequences? It is a construction that restricts the ambit of item 2 by linking it with a rare form of arthritis. That might possibly be considered harsh by the general public, and almost certainly would be by a service member who has a joint replacement but not an injury that qualifies under item 2, but that is not the same as absurdity. By framing the item 2 descriptor by reference to a rare, and possibly unusual, type of injury/condition, the legislator may have prioritised the public purse over an expansive set of beneficiaries. That is not absurd. It is a common feature of government policy making. I do not accept that Judge Wikeley’s construction of item 2 in MD gives rise to absurd consequences.
42. For the above reasons, those grounds of appeal that argue that the Upper Tribunal should depart from MD’s construction of item 2 are not made out.
Why the First-tier Tribunal erred in law
43. In my judgment, the First-tier Tribunal’s reasons for its decision were inadequate. On my reading of the Tribunal’s reasons, it found that osteoarthritis could not be an ‘other pathology’, as that term was construed in MD. This conclusion did not speak for itself and the requirement to give adequate reasons for a decision called for some explanation as to why osteoarthritis was not considered to be a similar or related pathology to septic arthritis. The Tribunal’s decision involved an error on a point of law, and it is set aside.
The Secretary of State’s suggested disposal of this appeal
44. The Secretary of State’s suggested disposal of this appeal invites me to hold that osteoarthritis constitutes a relevant injury for the purposes of item 2. I have already explained why I cannot take this course by reference to some general conception of fairness or to avoid a supposed absurdity.
45. The Secretary of State’s suggested disposal would not necessarily be inconsistent with MD’s ruling that, in item 2, ‘other pathology’ means ‘septic arthritis or any similar or related pathology requiring arthrodesis [etc]’. The Appellants in MD did not suffer from osteoarthritis so there was obviously no need for Judge Wikeley to consider whether osteoarthritis fell within his construction of ‘other pathology’. However, I do not consider myself competent, on the evidence before me, to answer the question whether osteoarthritis is a condition with a similar or related pathology to septic arthritis. My impression is that osteoarthritis is probably not a similar or related pathology to septic arthritis, given the very different aetiology, but it would be wrong for me to rule on the point without expert medical evidence which I do not have.
What about item 2B?
46. This is a case in which both the Appellant and Secretary of State agree that the Appellant is entitled to a Level 9 tariff award. I have explained why I cannot give effect to that agreement with reference to item 2 in Table 9. But there is also item 2B, which also carries with it a Level 9 award.
47. Item 2B has none of the arthritic uncertainty arguably attached to item 2. It specifies three kinds of arthritis including “post traumatic arthritis”. The specified ‘effects’ differ from those in item 2 in that item 2B requires total joint replacement as opposed to item 2’s partial or total joint replacement. However, that should not disadvantage CRP on his left hip claim because it seems that he has undergone a procedure for total replacement of the left hip.
48. CRP did not have septic or rheumatoid arthritis, but the medical evidence disclosed a clear diagnosis of osteoarthritis. The Secretary of State obviously accepts that CRP’s osteoarthritis is related to his service and there is reference in the First-tier Tribunal’s papers to CRP suffering training injuries. I have therefore provisionally decided to re-make the First-tier Tribunal’s decision by allowing CRP’s decision against the Secretary of State’s decision and replacing it with a decision that CRP satisfies the descriptor in item 2B of Table 9 on the basis that he has post traumatic arthritis (in the form of osteoarthritis) requiring a total replacement of the left hip joint. I recognise that the Secretary of State has not had the opportunity to make submissions on the applicability of item 2B and therefore direct that my decision comes into effect one month after it is issued unless, within that period, the Upper Tribunal receives the Secretary of State’s written, reasoned objection to a decision that CRP satisfies item 2B in Table 9. This is reflected in the formal decision set out before these reasons begin.
Conclusion
49. This appeal succeeds. Unless the Secretary of State objects, proceedings will be disposed of by the Upper Tribunal re-making the First-tier Tribunal’s decision, rather than remitting to that tribunal, and deciding that CRP satisfies item 2B of Table 9, in Schedule 3 to the 2011 Order.
Upper Tribunal Judge Mitchell
Authorised for issue on 24 April 2025
Anonymity: There having been no objection from the parties, the appellant in this case is anonymised in accordance with the practice of the Upper Tribunal described in Adams v Secretary of State for Work and Pensions and Green (CSM) [2017] UKUT 9 (AAC), [2017] AACR 28. The practice does not prevent publication by a party or anyone else of the identities of the individuals involved in the case. Anyone who wishes to be informed of the identity of the parties may make an application to the Upper Tribunal, and the parties will be given notice and an opportunity to object if such an application is made.
NCN. [2025] UKUT 33 (AAC)
Appeal No. UA-2024-001243-AFCS
IN THE UPPER TRIBUNAL
ADMINISTRATIVE APPEALS CHAMBER
Between:
MJU
Appellant
- v -
SECRETARY OF STATE FOR DEFENCE
Respondent
Before: Upper Tribunal Judge Stout
Decided on consideration of the papers
Representation:
Appellant: In person
Respondent: Paul Carolan, Veterans UK
On appeal from:
Tribunal: First-Tier Tribunal (War Pensions and Armed Forces Compensation Chamber)
Tribunal Case No: AFCS/00461/2023
Tribunal Venue: Birmingham (in person)
Decision Date: 28 January 2025
SUMMARY OF DECISION
WAR PENSIONS AND ARMED FORCES COMPENSATION (56)
56.5 Armed Forces Compensation Scheme
The First-tier Tribunal erred in law in failing to give adequate reasons for rejecting the appellant's case that he had been "ordered" to have the dental treatment that had been one of the causes of his myofascial/atypical facial pain. A conclusion that the appellant had not been given an enforceable order to have the treatment would in any event not be sufficient to determine whether the appellant's consenting to the treatment was 'caused by service' or not for the purposes of Article 8 of the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011 (SI 2011/517) ("the AFCS Order"). The assessment of whether or not something is 'caused by service' is more nuanced than simply whether the thing that causes the injury is a result of someone following an enforceable order or not. In this case, it required, first, adequate findings of fact to be made about what happened between the appellant and his officer in advance of that appointment. Secondly, taking full account of the guidance in JM v Secretary of State for Defence (AFCS) [2015] UKUT 332 (AAC), [2016] AACR 3, the Tribunal needed to consider whether or not the appellant's consenting to undergo the treatment in the light of whatever happened between him and his officer was "caused by service".
The Tribunal also erred in law in perversely concluding that there was "no evidence" that the stress that had contributed to the appellant's pain was work-related. There was ample evidence in principle as to that causal link. The Tribunal needed to consider that evidence and provide adequate reasons for the conclusions it reached on the issue in the light of the evidence. The Tribunal would need when making that assessment at the remitted hearing to apply the guidance in JM that the AFCS Order provides for a no-fault scheme and there is no "thin skull" exclusionary rule, so that stress may be "caused by service" even if there has been no breach of duty by the forces or the injury is not one that would be suffered by someone of ordinary fortitude.
Please note the Summary of Decision is included for the convenience of readers. It does not form part of the decision. The Decision and Reasons of the judge follow.
DECISION
The decision of the Upper Tribunal is to allow the appeal. The decision of the First-tier Tribunal involved an error of law. Under section 12(2)(a), (b)(i) and (3) of the Tribunals, Courts and Enforcement Act 2007, I set that decision aside and remit the case to be reconsidered by a fresh tribunal in the light of this decision.
REASONS FOR DECISION
Introduction
1. The appellant appeals against the decision of the First-tier Tribunal of 13 March 2024, in which the Tribunal upheld the Secretary of State's decision that the appellant is not entitled to compensation under the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011 (SI 2011/517) ("the AFCS Order") because his condition of myofascial/atypical facial pain was not predominantly caused by service.
2. A Statement of Reasons (SoR) was issued on 24 April 2024. Permission to appeal was refused by the First-tier Tribunal on 8 August 2024, but granted by me on 26 September 2024.
3. In his appeal form, the appellant identified five numbered grounds of appeal. I granted permission on all grounds, but observed in doing so that the appellant's grounds 2 and 3 did not really raise separate arguable errors to that identified by ground 1, but were further arguments in support of ground 1, while ground 4 added nothing material to the appeal. The grounds of substance, and the only grounds that I have needed to deal with in order to resolve this appeal, are therefore grounds 1 and 5, which are in summary:-
Ground 1 – That the Tribunal gave inadequate reasons for concluding that the appellant's filling repair on 1 February 2021 was not 'caused by service'; and,
Ground 5 – That the Tribunal reached a perverse conclusion that there was "no evidence" that any stress which contributed to the facial pain was service-related.
4. In response to the order I made when granting permission to appeal, the appellant provided further information/submissions identifying the medical evidence he relied on before the First-tier Tribunal in relation to ground 5 (together with more recent medical evidence that was not before the First-tier Tribunal). The Secretary of State then filed submissions responding to, and resisting, the appeal, to which the appellant has replied. Both parties have consented to my determining the appeal on the papers and I am satisfied that it is in accordance with the overriding objective to do so and that further oral submissions would not assist.
Legal framework
5. Article 8 of the AFCS Order provides:
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.
6. Article 2(1) provides that "'predominant' means more than 50%".
7. Article 60 makes provision in relation to burden of proof as follows:-
Burden of proof
1.-(1) Subject to the provisions of this article, the burden of proving any issue is on the claimant.
(2) Where paragraph (3) applies there is a presumption in favour of the claimant unless the Secretary of State proves to the contrary.
(3) This paragraph applies where-
(a) a contemporary official record relating to a material fact which is relevant to deciding a condition for payment of benefit under Part 2 is missing; and
(b) there is other reliable evidence to determine the material fact.
(4) For the purposes of paragraph (3)-
(a) "a contemporary official record" means a record, including an electronic record, held by the Secretary of State for Defence or the Defence Council;
(b) "a material fact" need not be a decisive fact for the purpose of determining a claim under Part 2;
(c) a record is missing where it has been-
(i) lost and cannot be found after a diligent search; or
(ii) destroyed.
8. By Article 61, the standard of proof is the balance of probabilities.
The First-tier Tribunal's decision
9. The appellant is still serving in the RAF and accordingly there was no dispute that his case had to be considered under Article 8 (set out above) only and not also under Article 9 (injury made worse by service) as Article 9 only applies to former members of the forces.
10. The appellant's case was that he developed myofascial/atypical facial pain as a result of dental treatment that he was obliged by his commanding officer to have against his wishes, and that the pain was also in part caused by work-related stress. His case was thus put on the basis that both the treatment and the exacerbation of the pain by stress were 'caused by service' so that, taken together, his injury was 'predominantly' caused by service.
11. The Tribunal directed itself by reference to the decision of the three-judge panel of the Upper Tribunal in JM v Secretary of State for Defence (AFCS) [2015] UKUT 332 (AAC), [2016] AACR 3 to apply a four-stage test of: (i) identify all potential causes; (ii) discount causes that are too remote or uncertain; (iii) categorise remaining causes as Service and non-Service; (iv) if not all remaining causes are Service-related, apply the predominance test. It reminded itself of the guidance in that case at [86] that breach of duty and fault are not relevant to the AFCS scheme, only the question of whether the injury is caused by service.
12. Regarding the dental treatment, the Tribunal concluded this was not caused by service as follows:-
42. The medical evidence demonstrates that the appellant consented to both
procedures. We find no compulsion of service made the appellant undertake
the dental treatment. The consent obtained for the two procedures was in line with civilian dental procedure.
43. The documentary evidence does not support a finding that the appellant was ordered to undertake the treatment.
44. We considered the appellant's perception that he had to have the treatment to remain dentally fit. The appellant's evidence was that he had lived with the chipped filling for 3-4 years and had remained fit for work. We find that although the appellant was required to attend an appointment, he was under no compulsion to have the treatment. Using the expertise available to it we found that if the appellant had not consented to the treatment and he remained fit for work then no action would have been taken.
45. We therefore found that a) the filling repair was not a service related cause.
13. Regarding the stress, the Tribunal concluded that although part of the injury was caused by stress, the appellant's stress was not caused by service:
46. We find that the medical evidence refers to stress being related to the
condition. At page 127 in the letter which found that the pain was partly due to stress, the consultant stated that the appellant was not under undue stress at work but has had a very difficult year with facial pain and also some personal relations issues which are now better. He has been having CBT therapy at his base and this has been helpful. There is no evidence that any stress which contributed to the facial pain is service related.
14. The Tribunal thus concluded that as none of the causes of the injury were service-related, the appellant's claim must fail.
Ground 1 - That the Tribunal gave inadequate reasons for concluding that the appellant's filling repair on 1 February 2021 was not 'caused by service'
15. In granting permission to appeal on Ground 1 I observed as follows:-
10. ... It is arguable that the First-tier Tribunal has erred in law in its consideration of whether the appellant's filling repair on 1 February 2021 was caused by service.
11. The appellant's case as set out in his claim (p 16 of the First-tier Tribunal bundle) and in other earlier documents (e.g letter of 10 November 2022, pp 138-139 and record of complaint report of 19 February 2021, pp 139-140) was that he was not in pain prior to the filling repair and had (on advice from previous dentists) opted not to have it repaired previously. His case was that he was ordered by his Senior Dental Officer to have a replacement filling and the appointment was booked for that purpose.
12. The Tribunal records the appellant's oral evidence to that effect at [18] of the SoR. The Tribunal rejects the appellant's case in that respect at [43] because "The documentary evidence does not support a finding that the appellant was ordered to undertake the treatment". It is arguable that the First-tier Tribunal's reasons in this respect are inadequate as it has not explained why it would have expected documentary evidence of the alleged "order" to exist or why it has rejected the appellant's evidence that he was "ordered", despite the consistency of his position in this respect since very shortly after the treatment in question.
13. If the appellant's evidence that he was "ordered" was accepted, then it is arguable that would have materially affected the Tribunal's conclusion that the replacement filling and consequent injury were not "caused by" service. The guidance from the Upper Tribunal in McCabe [2016] AACR 3 at [98]-[102] would need to be considered in this regard.
14. I add that the Tribunal's reasons at [44] do not seem to me to assist on this issue as they deal with the separate question of "the appellant's perception that he had to have the treatment to remain dentally fit".
16. In response to this ground of appeal, the Secretary of State submitted as follows:
With regards to the issue of whether [MJU] was unable to refuse dental treatment and therefore "ordered" to undergo the procedure in question. The Secretary of State would agree with the FTT that there is adequate evidence to demonstrate that [MJU] has refused medical treatment whilst in service in the past. Prior to his dental treatment, in 2015 [MJU] had refused physiotherapy being aware that treatment is not mandatory and is that of personal choice. The records also indicate that [MJU] consented to both dental procedures with the risks explained prior. The Secretary of State would agree with the FTT that the filling repair was not a service-related cause.
17. The Secretary of State's response is thus, in short, that the Secretary of State remains of the view that as a matter of fact the First-tier Tribunal's decision was correct.
18. That is no answer, however, to an appeal to the Upper Tribunal, whose jurisdiction under section 11 of the Tribunals, Courts and Enforcement Act 2007 is concerned with whether the First-tier Tribunal's decision involved an error of law.
19. The arguable error I identified when granting permission was that the Tribunal had failed to give adequate reasons for why it had rejected the appellant's case that he was not "ordered" to undertake the treatment.
20. It is well established that a failure to give adequate reasons is an error of law. A tribunal's reasons will not be inadequate merely because they fail to set out every step in their reasoning or even to deal with every point raised by the parties; but to be adequate reasons must deal with the substantial points in the case and be sufficient to enable the parties to understand why they have won or lost and any appellate tribunal to see there has been no error of law: see, eg. R (Jones) v First-tier Tribunal (Social Entitlement Chamber) [2013] UKSC 19, [2013] 2 AC 48 per Lord Hope at [25] and R (Iran) v SSHD [2005] EWCA Civ 982 at [13]-[16] per Brooke LJ.
21. In this case, the only specific reason that the Tribunal gave for rejecting the appellant's evidence that he was "ordered" to have the dental treatment was that "The documentary evidence does not support a finding that the appellant was ordered to undertake the treatment". However, given that there is no reason to suppose that there would be documentary evidence of such an order (the Secretary of State having identified none despite my raising this point in the grant of permission), this is in my judgment inadequate as a reason why the appellant's evidence on the issue has been rejected. While I can understand why the Secretary of State and the Tribunal are sceptical that any officer would have "ordered" the appellant to undergo dental treatment, the appellant's evidence on this was clear and consistent and if it was to be rejected adequate reasons needed to be given.
22. The other factual matters on which the Secretary of State relies (i.e. that the appellant had both consented and refused medical treatment on other occasions) also do not help one way or another. It does not follow from what happened on other occasions that the appellant was not "ordered" on this occasion.
23. The Tribunal in its reasons at [42] places weight on the appellant having consented to the treatment on this occasion, but it does not follow from that that he was not "ordered" to have the treatment (and thus, implicitly, required to give his consent to it).
24. Although the Secretary of State has not referred to [44] of the Tribunal's reasons in response to this ground of appeal, it seems to me on revisiting this case that this paragraph (which deals with what to me at the permission stage seemed an unhelpful digression as to the appellant's "perception") does provide some further insight into the Tribunal's reasoning. The Tribunal states that it has used its expertise to find "that if the appellant had not consented to the treatment and he remained fit for work then no action would have been taken". As I read this now, it seems to me that this sentence is the Tribunal explaining that it has found the appellant was not "ordered" because, even if he was given an order in so many words, it would not have been treated by the RAF as a failure to follow orders. If that is what is meant by this paragraph, however, then there would in my judgment be a further error here as follows.
25. The issue for the Tribunal was whether the treatment that caused the injury was predominantly caused by service. The guidance in JM at [98]-[103] about when something is caused by service and when it is not does not turn simply on the question of whether the thing that has caused the injury was the result of someone following orders or not; that is merely one possible indicator of whether something is caused by service or not: see the Secretary of State's own policy guidance cited at [103] of JM. Nor, it follows, does it turn on the question of an order that has been made would have been enforced by the RAF as such. The exercise required of the Tribunal is much more nuanced than that. Not every communication from an officer as part of service life will be an order, but following or responding to that communication may still be "compliance with the general ... obligations of service" or "reasonably incidental to these obligations", to use the language of Tucker J in the Horsfall case cited at [98(i)] of JM. The complexities of the analysis required in order to decide whether something is 'caused by service' or not become even more difficult where what is in issue, or potentially in issue, is bullying, or bullying-type, conduct, as the three-judge panel in JM explore at [103]-[115]. That guidance may be relevant here, depending on what the facts are as to the appellant's interaction with his officer regarding having this treatment. In making that observation, I emphasise that I am not suggesting that the appellant is alleging that he was 'bullied' into having the treatment, merely that the guidance given in JM about when bullying behaviour may be regarded as being part of service and when it is not will also be relevant to deciding whether, if the officer did in fact order the appellant to undergo the treatment, the appellant's following of that order is to be regarded as part of his service life or not.
26. In short, the Tribunal's conclusion that the appellant was not given an enforceable order to undertake the treatment would not by itself answer the issue that the Tribunal had to determine. The issue of whether the treatment the appellant received was "caused by service" required the Tribunal, first, to make careful findings of fact about what happened between the appellant and his officer in advance of that appointment, providing adequate reasons for any part of the appellant's account it rejected (in particular his evidence that he was "ordered"). Then the Tribunal had to consider, taking full account of the guidance in JM, whether or not the appellant's consent to undergo the treatment in the light of whatever happened between him and his officer was "caused by service".
Ground 5 - That the Tribunal reached a perverse conclusion that there was "no evidence" that any stress which contributed to the facial pain was service-related
27. In granting permission on this ground, I directed that in order for the appellant to establish on this appeal that the Tribunal reached a perverse conclusion that there was "no evidence that any stress which contributed to the facial pain is service related", he would have to identify precisely which medical evidence he was relying on in this respect.
28. In response to this direction, the appellant provided a list of 14 bundle references. Some of those deal with the evidence that the Tribunal accepted did exist as to the link between stress and the myofascial pain. However, some of the references do in my judgment clearly constitute evidence that the stress was in turn related to work or, at least, evidence that needed to be addressed by the Tribunal in its reasons if it was to provide adequate reasons for why it concluded that there was "no evidence" of work-related stress. Those references in the appellant's medical notes are as follows:-
a. 3/3/22 - "Future stressors: return to work ..."
b. 18/2/22, 10:00 - Diagnoses of Depressive episode and Anxiety disorder; 16:05 - "Recurrent depression. Occ downgrade for the last 10 yrs. Recent struggles over lack of perceived support for training at JSSU - refusing to return there but is adamant that he wants to return to work. Would be willing to go to another position at Digby but none seemingly available. RAF Addington would be an acceptable alternative for him. If the Welfare route to another position is unsuitable/unavailable then, assuming the SP is willing to accept the risks inherent in this, we would be willing to support Geographical Assignment"
c. 16/2/22, 13:34 - "MDT DISCUSSION: remains off work/keen to return/no clear way forward with occupational recommendations causing greater stress ... "
d. 19/1/22, 09:11 - "Anxiety continues but has improved from initial period of sick leave... Home life is good ... Worked JSSU at Digby prior to TNE and this was a very difficult posting. Has support from Welfare and looking into a non blame-worthy posting, hopefully within Lincolnshire..."
e. 12/1/22, 15:51 - "... DCMH assess as unfit to return to previous role/location"
f. 16/12/21, 12:31 - "Drivers for low mood include homelife issues, working pattern and teeth issues"
g. 3/12/21, 09:15 - "still not ready to go back to work yet given work was the main trigger for the recent increase in anxiety"
h. 25/11/21, 08:35 - "main source of unhappiness is work ..."
i. 11/11/21, 14:34 - "Due back in work next week and cannot realistically see himself doing this at present. Had 'breakdown' in work and feels current anxiety and panic symptoms mean could not function in work".
j. 9/11/21, 10:07 - "discussed that as work is part of the trigger for increase in anxiety would be beneficial to start talking ..."
k. 16/4/21, 09:29 - "dental issues (treatment awaited) and stressors at work ..."
29. In responding to the appeal, the Secretary of State has dealt with each of these entries and sought to explain why the Tribunal was right to conclude that these did not provide evidence of a causal link between work and stress.
30. Again, I am afraid the Secretary of State's response is no answer to an appeal on a point of law. The Tribunal's conclusion that there was "no evidence" of a link between work and stress was perverse, even applying the high threshold required before such a conclusion is reached: see R (Iran) v SSHD ibid at [11]. There was in fact ample evidence of a link; it was not open to a Tribunal, properly directing itself on the evidence, to find that there was no such evidence. Of course, the Tribunal may nonetheless be able to conclude that the causal link is not made out for some or all of the reasons identified by the Secretary of State. However, in an appeal on a point of law, it does not assist for the Secretary of State to provide the evidence and reasons missing from the Tribunal's analysis. The Tribunal's role was to consider that evidence and explain what it made of it; it has not done that.
31. It follows that this ground of appeal succeeds. However, given some of the arguments raised by the Secretary of State regarding the evidence of work-related stress, and the appellant's response to those arguments, I need to say a little more about the task that will face the Tribunal when this case is remitted.
32. In the Secretary of State's submissions, it is argued (among other things) that the medical records "do not give any information as to the cause or nature of the stress", that "service proactively removed [the appellant] from any potential workplace stressors by preventatively signing him off" and that a reference "lack of 'perceived' support isn't a specific indication of any service exacerbation, and would potentially suggest [the appellant] has a different view point relating to required support".
33. The difficulty with these submissions is that they suggest that fault and breach of duty are relevant to the question of whether the injury was caused by service. However, as Judge Rowland neatly summarised the law in the light of JM in SN v SSD (AFCS) [2018] UKUT 263 (AAC), "this is a no-fault scheme ... a mental disorder caused by stresses at work in the Armed Forces may be caused by service even if no-one behaved improperly towards the claimant".
34. The Secretary of State's submissions also suggest that weaknesses, or the appellant's subjective perception of matters at work, may be the cause of the stress rather than work. That is an issue that the Tribunal will need to consider on remission. In doing so, the Tribunal will need again to take account of the guidance in JM that having a "thin skull", and thus being more susceptible to work-place stressors, does not remove the causal connection between the work and the stress. In JM the Upper Tribunal held as follows:-
132 In this context we do not see any sign that the intention behind the AFCS is to deprive those with constitutional weaknesses from the protection usually regarded as appropriate in other compensation schemes, that is to say the "thin skull" approach.
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:
(a) have occurred at all, or
(b) 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.
35. This Tribunal will need to apply this guidance when considering the appellant's case at the remitted hearing.
Conclusion
36. I have found that the decision of the First-tier Tribunal involved errors of law and I set the decision aside and remit it for rehearing before a fresh panel. I emphasise that it does not follow that because this appeal has been successful that the appellant will ultimately succeed in his claim to benefit. The Tribunal needs to consider all the evidence afresh, make the necessary findings of fact and apply the law correctly taking account of the guidance in this decision. In addition to the matters that have been considered by me in this appeal, the Tribunal will of course also need to consider, if it concludes that at least some of the appellant's injury was caused by service, whether it was predominantly so caused. As this Tribunal did not need to address this question, I have not addressed it on this appeal, but the new Tribunal will need to do so if it reaches that stage in the analysis. The other matters of fact and evidence raised by both parties in this appeal will be matters that they will need to place before the First-tier Tribunal at the remitted hearing (including the appellant's new medical evidence obtained since the First-tier Tribunal hearing). It will be for the First-tier Tribunal to evaluate that evidence and the parties' arguments in the light of the guidance in this judgment.
Holly Stout
Judge of the Upper Tribunal
Authorised by the Judge for issue on 29 January 2025
Neutral Citation Number [2025] UKUT 32 (AAC)
Appeal No. UA-2023-001282-AFCS
IN THE UPPER TRIBUNAL
ADMINISTRATIVE APPEALS CHAMBER
Between:
AK
Appellant
- v -
The Secretary of State for Defence
Respondent
Before: Upper Tribunal Judge Church
Decided on consideration of the papers
Representation:
Appellant: Not represented
Respondent: Daisy Beck and David Snape of Veterans UK
On [appeal from]/[judicial review of]:
Tribunal: First-tier Tribunal (WPAFCC)
Tribunal Case No: AFCS/00457/2022
Tribunal Venue: Manchester Piccadilly, Exchange Plaza
Decision Date: 9 May 2023 (issued 15 May 2023)
SUMMARY OF DECISION
WAR PENSIONS AND ARMED FORCES COMPENSATION (56)
56.5 Armed Forces Compensation Scheme
Judicial summary - AK was a soldier with autism. He claimed compensation for mental health problems that he said were caused by his experiences serving in the British Army.
While it found that AK had been subjected to "inappropriate", unprofessional" and offensive" behaviour from colleagues that had caused him stress, the First-tier Tribunal decided that AK's autism was the predominant cause of his mental health problems, rather than the treatment to which he was subjected.
AK's appeal was allowed. The Tribunal had erred in its approach to assessing causation.
It may be that AK was particularly sensitive to anxiety and stress, and it may be that this was because of his autism. It may be that he experienced as persecution incidents that others might have interpreted as "horseplay". However, for the purposes of the Armed Forces Compensation Scheme, the "thin skull" approach means AK shouldn't be denied compensation just because another soldier, who did not have autism and who experienced the same events as AK, might not have developed the same mental health condition or symptoms that he did, or experienced the same intensity of degree.
Please note the Summary of Decision is included for the convenience of readers. It does not form part of the decision. The Decision and Reasons of the judge follow.
DECISION
The decision of the Upper Tribunal is to allow the appeal. The decision of the First-tier Tribunal involved an error of law. Under section 12(2)(a), (b)(i) and (3) of the Tribunals, Courts and Enforcement Act 2007, I set that decision aside and remit the case to be reconsidered by a fresh tribunal in accordance with this.
REASONS FOR DECISION
Introduction
1. This appeal is about the Appellant (to whom I shall refer as the "AK") who joined the British Army in 2014, at the age of 19, and served until his discharge almost five years later. AK has autism, although this was only identified recently in adulthood.
2. During his service the claimant made several service complaints about unfair treatment, bullying, harassment, discrimination, biased behaviour, less favourable treatment and assault. These complaints were not upheld for the most part. It was accepted by the Respondent (to whom I shall refer as the "Secretary of State") that AK had been subjected to "inappropriate behaviour within his unit", although the Respondent didn't accept that this behaviour constituted bullying or harassment.
3. AK experienced mental health difficulties. On 11 July 2019 he made a claim for compensation under the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011 (the "2011 Order") on the basis that his claimed condition of 'Mental Health Issues' had been worsened since 2014 by service. In particular, he wrote in his claim form:
"I was assaulted by a military Police Officer at Catterick Garrison. This triggered my mental health issues. In Canada 2016 I was made to sleep on an active tank track, I was made to drive over a mine field. I was also injured when the driver deliberately slammed on the brakes again in Canada. This was part of me being bullied."
4. His claim was refused by the Secretary of State on 23 September 2020 (the "SoS Decision"), and the SoS Decision was confirmed on reconsideration on 4 March 2022. AK disagreed with this outcome and appealed to the First-tier Tribunal.
5. A panel of the First-tier Tribunal convened in Manchester to hear the appeal on 9 May 2023 (the "Tribunal"). The Tribunal dismissed the appeal and confirmed the SoS Decision because it found that the claimant's military service "provided the setting for [his] symptoms of the condition of Autism...to be amplified" and "the condition of Autism was the predominant cause for the development and deterioration in the [claimant]'s symptoms of Mental Health issues" (see the Tribunal's brief reasons given on the day of the hearing) (the "FtT Decision").
6. AK applied to the First-tier Tribunal for permission to appeal. On 8 August 2023 District Tribunal Judge Siddique of the First-tier Tribunal granted permission to appeal to the Upper Tribunal.
Legal framework
7. The scheme for compensating members or former members of the armed forces is operated according to the terms of the 2011 Order. To the extent relevant to the issues in this appeal, the 2011 Order provides:
"Article 2 - Interpretation
In this Order-
"predominant" means more than 50%
...
Article 8 - Injury caused by service
1.-(1) Subject to articles 11 and 12, benefit is payable to or in respect of a member or former member of the forces 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 9 - Injury made worse by service
1.-(1) Subject to articles 11 and 12, benefit is payable to or in respect of a former member of the forces by reason of an injury made worse by service if the injury-
(a) was sustained before the member entered service and was recorded in the report of the medical examination when the member entered service,
(b) was sustained before the member entered service but without the member's knowledge and the injury was not found at that examination, or
(c) arose during service but was not caused by service,
and in each case service on or after 6th April 2005 was the predominant cause of the worsening of the injury.
(2) Benefit is only payable under paragraph (1) if the injury has been worsened by service and remains worsened by service on-
(i) the day on which the member of the forces' service ends; or
(ii) the date of claim if that date is later.
(3) Subject to paragraph (4), in the case of paragraph (1)(a) and (b), benefit is only payable if-
(a) the member of the forces or former member of the forces was downgraded within the period of 5 years starting on the day on which the member entered service;
(b) the downgrading lasted for a period of at least 6 months (except where the member of the forces was discharged on medical grounds within that period);
(c) the member or former member of the forces remains continually downgraded until service ends; and
(d) the worsening was the predominant cause of the downgrading.
(4) In the case of paragraph 1(a) or 1(b), benefit is not payable if the injurt is worsened –
(a) within 6 months of the day service commenced; or
(b) 5 years or more after that day.
(5) In the case of paragraph (1)(c), benefit is only payable if the member of the forces-
(a) was downgraded within the period of 5 years starting on the day on which the member sustained the injury and remains continually downgraded until service ends; and
(b) the worsening was the predominant cause of the downgrading.
Article 60 - Burden of proof
1.-(1) Subject to the provisions of this article, the burden of proving any issue is on the claimant.
(2) Where paragraph (3) applies there is a presumption in favour of the claimant unless the Secretary of State proves to the contrary.
(3) This paragraph applies where-
(a) a contemporary official record relating to a material fact which is relevant to deciding a condition for payment of benefit under Part 2 is missing; and
(b) there is other reliable evidence to determine the material fact.
(4) For the purposes of paragraph (3)-
(a) "a contemporary official record" means a record, including an electronic record, held by the Secretary of State for Defence or the Defence Council;
(b) "a material fact" need not be a decisive fact for the purpose of determining a claim under Part 2;
(c) a record is missing where it has been-
(i) lost and cannot be found after a diligent search; or
(ii) destroyed.
...
Article 61 - Standard of proof
The standard of proof applicable in any decision which is required to be made under this Order is the balance of probabilities."
The First-tier Tribunal's decision
8. The Tribunal identified the task before it as "to decide whether the claimed condition of Mental Health Issues was predominantly caused by or predominantly made worse by service in accordance with the AFCS."
9. AK's case was that his mental health issues were due to service because he had no issues before he enlisted and because the issues arose after a sustained period of bullying during his service. He had lodged service complaints but was told that the behaviour did not amount to bullying.
10. The Secretary of State maintained that AK's mental health issues were partly but not predominantly caused or worsened by his service. He accepted that AK was subjected to inappropriate behaviour during the course of his service but did not accept that there was any bullying, harassment or assault that was service caused.
11. The Tribunal said that in approaching its task of assessing whether AK's mental health issues were predominantly caused by or predominantly worsened by service it followed the guidance given by the Upper Tribunal in JM v SSD (AFCS) [2015] UKUT 332 (AAC), and it quoted extensively from that decision as to the steps that should be taken when assessing this issue:
"The steps to be taken in the application of the AFCS test
118. The analysis we have set out founds the conclusion that the correct approach to the issues of cause and predominant cause under the AFCS is:
i) First identify the potential process cause or causes (i.e. the events or processes operating on the body or mind that have caused the injury);
ii) Secondly, discount potential process causes that are too remote or uncertain to be regarded as a relevant process cause;
iii) Thirdly, categorise the relevant process cause or causes by deciding whether the circumstances in which each process cause operated were service or non-service causes. It is at this stage that a consideration of those circumstances comes into play and the old cases on the identification of a service cause applying the old attributability test provide guidance.
iv) Fourthly, if all of the relevant process causes are not categorised as service causes, apply the predominancy test."
12. The Tribunal went on to cite the Upper Tribunal's discussion of how a claimant's 'constitutional weakness' should be accounted for:
"132 In this context we do not see any sign that the intention behind the AFCS is to deprive those with constitutional weaknesses from the protection usually regarded as appropriate in other compensation schemes, that is to say the "thin skull" approach.
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:
(a) have occurred at all, or
(b) 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."
13. The Tribunal said that it adopted this approach and also the rather leaner formulation in NJ v SSD [2018] UKUT 211 (AAC) that:
"The question has to be asked, but for an event or process, would the injury have happened? If the answer is that the injury would not have happened without a particular event, then the event is a cause" (see NJ v SSD at [22]).
14. The Tribunal found that AK has autism (see paragraphs [14]-[15] of its statement of reasons). It also accepts that AK has diagnoses of dyslexia, anxiety and depression (see paragraph [16] of its statement of reasons). It doesn't appear to have accepted that he has post-traumatic stress disorder. While the Tribunal found that service was not a cause of AK's Autism, it found that:
"exposure to military service provided the setting for ... [AK's] symptoms of the condition of Autism, now diagnosed, to be amplified. The tribunal found that the condition of Autism was the predominant cause for the development and deterioration in [AK]'s symptoms of Mental Health issues" (see paragraph 18 of the statement of reasons).
15. The Tribunal explained its reasons for these conclusions as follows:
"In reaching its decision the tribunal has borne in mind that it is not uncommon for people to be diagnosed with Autism later in life following stressful events which trigger anxiety and demonstrably autistic behaviour. The tribunal accepts that some of the events and incidents of service would have caused stress for [AK] which in turn lead to him showing autistic behaviour. However those incidents did not cause the Autism and did not make the Autism worse. Those incidents were the triggers for the symptoms to become more apparent and obvious leading to ultimate diagnosis. It is the view of the tribunal that the symptoms would have become apparent in any event without service at some time in [AK]'s life at any point when he experienced some event out of the ordinary which was challenging" (paragraph 22 of the statement of reasons).
16. The Tribunal said that it "attached weight to" the Appeal Body Determination of [AK]'s service complaints of 17 July 2020 and "found it significant that after extensive enquiries and investigations the Appeal Body Determination found that [AK]'s service complaints of unfair treatment, bullying, harassment, discrimination, biased behaviour, less favourable treatment, and assault were not upheld".
17. The Tribunal said it was medically accepted that difficulty in interpreting social situations and understanding the body language and communications of others and understanding normal social interactions is a common feature of Autism (see paragraph 21 of the statement of reasons) and found it "more likely than not" that AK's autism
"meant that the events that occurred were interpreted by him in a way which led him to believe he was being unfairly treated, bullied, harassed discriminated against and treated less favourably [sic]. It was the condition of Autism and his reaction to events as a consequence of that condition which were the predominant cause in precipitating the Mental Health Issues and not the service events in themselves."
The grounds of appeal and the parties' submissions
18. Permission was granted by the First-tier Tribunal on four grounds:
a. the concept of "worsening" under the scheme encompasses the term "amplified", as used by the Tribunal,
b. the Tribunal's approach in respect of a claimant's "constitutional weakness" was wrong in law,
c. the Tribunal's conclusion that the claimant was subjected to "usual", "minor" or "expected" events is arguably irrational given its findings that the claimant was subjected to "inappropriate and unprofessional behaviour", "offensive behaviour" and "maladministration",
d. the Tribunal erred by failing to recognise the "no fault" nature of the armed forces compensation scheme.
19. I made Case Management Directions for the Secretary of State to make submissions on the appeal.
20. The Secretary of State made submissions resisting the appeal, arguing that the Tribunal made no error of law, and inviting me to dismiss the appeal.
21. AK responded to say that he had nothing further to say and he relied on the arguments he had made in his application for permission and on the grounds identified by Judge Siddique in the grant of permission to appeal.
Analysis
22. The first thing I observe about the Tribunal's reasons for its decision is that they don't explain clearly what facts the Tribunal found in relation to AK's allegations about his experiences during his service in the British Army.
23. The Tribunal makes clear that it gave substantial weight to the Appeal Body Determination, which largely dismissed AK's claims but accepted that there was maladministration. It is unclear whether the Tribunal accepted only what the Appeal Body accepted, and it is unclear whether it carried out its own assessment of the allegations. These important omissions make it very difficult for a reader of its reasons to understand whether the Tribunal was entitled to make the decision it did.
24. The Tribunal found that AK's autism wasn't caused by his treatment during his service in the British Army. This is an uncontroversial conclusion, given that autism is a neurological and developmental condition which is believed to be present from birth, but while AK did raise his autism in his appeal, he wasn't arguing that his autism was caused by service.
Ground a: "worsening" encompasses "amplified"?
25. I turn now to the first ground for which Judge Siddique gave permission: whether the word "worsening" as it appears in the 2011 Order encompasses the term "amplified", which the Tribunal used in its reasons.
26. The Tribunal accepted that "some of the events and incidents of service" would have caused AK stress. It is unhelpful that the Tribunal didn't set out expressly which "events and incidents" it found to have occurred. The Tribunal said the experience of these stressful events and incidents would have resulted in AK "showing autistic behaviour", or his autistic behaviours being "amplified", but they didn't actually worsen AK's autism.
27. Aside from the lack of clarity as to what "events and incidents" the Tribunal was talking about, I have no difficulty with this conclusion either. However, the main thrust of AK's case for compensation was neither that his experience of service caused his autism, nor that it "worsened" his autism. Rather, AK was arguing that his experiences in service caused him to experience mental health problems including stress and anxiety.
28. To the extent that the Tribunal was seeking to distinguish between a "worsening" of AK's autism and the "amplification" of the symptoms of that condition, I am not clear what its intention was. The term used in the 2011 Order is "worsening". In the context of a mental health or neurological condition the meaning of that word must be something like "deterioration" or perhaps "intensification". It is difficult to see how an "amplification" of symptoms would not also amount to a "worsening", except perhaps to the extent that the symptoms in question are not undesirable ones. That would not appear to be the case here.
29. In the circumstances, I am satisfied that the Tribunal did err to the extent that its reference to AK's symptoms being "amplified" instead of "worsening" was intended to indicate that such amplification didn't amount to a worsening, but this error wasn't a material one because the findings about "amplification" were made in relation to AK's autistic behaviours, and not the symptoms of his accepted anxiety and depression or his claimed post-traumatic stress disorder, which should have been the Tribunal's focus as it was those conditions that was the real basis of his claim for compensation under the scheme.
Ground b: Tribunal's approach to "constitutional weakness" was wrong in law
30. While the Tribunal cited JM v SSD and NJ v SSD, and indeed it quoted at some length from JM v SSD, it doesn't appear to have followed either the "four step" approach that the Upper Tribunal said was the correct approach in JM v SSD, or the approach that the Upper Tribunal took to assessing causation in respect of a claimant with a "constitutional weakness".
31. Rather, having found that AK has autism (paragraph [15] of its statement of reasons) and that his autism was not caused by his service (paragraph 17] of its statement of reasons), in paragraph [18] it appears to have short-circuited the process, going straight to a finding that "the condition of Autism was the predominant cause for the development and deterioration in [AK]'s symptoms of Mental Health Issues".
32. While it considered the possibility that AK's military service was a process cause of AK's autism it doesn't appear to have considered whether it was a process cause of AK's anxiety or depression.
33. In paragraph [16] of its reasons the Tribunal had observed that it was "medically accepted" that autism "affects how people interact with others, communicate, learn and behave", that undiagnosed autism in adults "can lead to them finding it hard to hold down employment and cope with friendships and relationships" and that "it is often the case that ... people with Autism have dyslexia, anxiety and depression".
34. It would have been helpful had the Tribunal made findings of fact rather than observations of what it considered to be "medically accepted", but more importantly, an apparent correlation between the incidence of autism and other mental health conditions doesn't necessarily establish that one caused the other.
35. The Tribunal's explanation for its striking finding that AK's autism was the predominant process cause of his other mental health problems can be found in paragraph [25] of its statement of reasons:
"The Tribunal found it more likely than not that [AK]'s condition of Autism meant that the events that occurred were interpreted by him in a way which led him to believe he was being unfairly treated, bullied, harassed, discriminated against, and treated less favourable [sic]. It was the condition of Autism and his reaction to events as a consequence of that condition which were the predominant cause in precipitating the Mental Health Issues and not the service events in themselves."
36. The Tribunal found that AK misinterpreted events due to a difficulty in understanding social interactions and social cues that was symptomatic of his autism. It decided that it was this misinterpretation on his part that caused his mental health issues to "precipitate", rather than the behaviour to which he was subjected. I find this to be an erroneous approach, and one that is inconsistent with the approach taken by the Upper Tribunal in the cases to which the Tribunal referred.
37. Given the events that AK described, it is difficult to see how his experiencing stress and his developing mental health problems could be said to be due to his having "misinterpreted" the events and actions in question. Perhaps if the Tribunal had made clearer findings on what had actually occurred, that might explain it. But it didn't. The Tribunal's decision making in this regard sits uncomfortably with the Secretary of State's admission that AK was "subjected to inappropriate behaviour" (see paragraph [8] of the statement of reasons) and with its own findings that AK was subjected to "inappropriate and unprofessional behaviour" (paragraph [29] of its statement of reasons) and "offensive behaviour" (see paragraph [29]) during service.
38. AK was a soldier with autism. It may be that he was particularly sensitive to anxiety and stress, and it may be that this was because of his autism. It may be that he experienced as persecution incidents that others might have interpreted as "horseplay". However, for the purposes of the scheme, the "thin skull" approach adopted in JM v SSD means that AK shouldn't be denied compensation just because another soldier, who did not have autism and who experienced the same events as AK, might not have developed the same mental health condition or symptoms that he did, or experienced the same intensity of degree.
39. To borrow a phrase from the Tribunal's reasons, it appears more likely that AK's autism "provided the setting" for the development of anxiety and depression (and possibly post-traumatic stress disorder), rather than causing it. It was his experience of incidents during his service that gave rise to the stress that he experienced. The Tribunal's job was to assess whether that was the sole or predominant process cause of AK's mental health issues.
40. For these reasons I am satisfied that the Tribunal took the wrong approach to causation and in doing so it erred materially in law
Ground c: Tribunal's conclusion that AK was subjected to "usual", "minor" or "expected" events is irrational given its findings that the claimant was subjected to "inappropriate and unprofessional behaviour", "offensive behaviour" and "maladministration",
41. As touched upon above in relation to Ground b, I find the Tribunal's findings about the events that AK experienced during his service to be contradictory. Had the Tribunal been clearer as to what it found had happened, perhaps it would be apparent how inappropriate, unprofessional and offensive behaviour and maladministration could properly be described as "usual", "minor" or "expected". Without such an explanation these descriptions read as inconsistent and irrational. As such, I am persuaded that the Tribunal erred in law in this regard too.
Ground d: Tribunal erred by failing to recognise "no fault" nature of the scheme
42. The Tribunal's reasons focus on the fact that AK didn't succeed in establishing that the treatment he experienced during service amounted to bullying, harassment, discrimination or less favourable treatment. However, they acknowledge that the incidents described "were not pleasant and would have caused some stress". It found that these were "minor events which are to be expected in service and communal life in the British Army". These passages raise the possibility that the Tribunal may have been under the misapprehension that AK needed to demonstrate that the British Army, or its soldiers, were at fault.
43. However, while the Tribunal's reasons could certainly have been clearer, I am not persuaded on the balance of probabilities that the Tribunal was under such a misapprehension. The absence of an express statement about no fault being required to succeed in a claim under the scheme does not establish that the panel wasn't aware of that fact. This ground therefore fails.
44. However, because I have decided that the Tribunal erred materially in the other ways explained above, the appeal is allowed.
Conclusion
45. I conclude that the decision of the First-tier Tribunal involves material errors of law. I allow the appeal and set aside the decision under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007.
46. Further facts need to be found. The First-tier Tribunal, with its expert members, is best placed to carry out that fact finding.
47. The case must (under section 12(2)(b)(i)) be remitted for re-hearing by a new tribunal.
Thomas Church
Judge of the Upper Tribunal
Authorised by the Judge for issue on 28 January 2025
Neutral Citation Number: [2025] UKUT 37 (AAC)
Appeal No. UA-2024-SCO-000007-AFCS
IN THE UPPER TRIBUNAL
ADMINISTRATIVE APPEALS CHAMBER
Between:
MW
Appellant
- v -
Secretary of State for Defence
Respondent
Before: Upper Tribunal Judge Wikeley
Hearing date: 15 January 2025
Representation:
Appellant: In person
Respondent: Ms Megan Dewart, advocate, instructed by Morton Fraser MacRoberts LLP
On appeal from:
Tribunal: Pensions Appeal Tribunal (Scotland)
Tribunal Case No: PATS/CS/22/0116
Tribunal Venue: Edinburgh
Hearing Date: 27 July 2023
Decision Date: 8 August 2023
Anonymity: The appellant in this case is anonymised in accordance with the practice of the Upper Tribunal approved in Adams v Secretary of State for Work and Pensions and Green (CSM) [2017] UKUT 9 (AAC), [2017] AACR 28.
SUMMARY OF DECISION
Armed Forces Compensation Scheme (56.5)
Judicial summary
The Appellant, who suffered from PTSD as a result of his service in the RAF, made a claim for compensation under the Armed Forces Compensation Scheme (AFCS). The Secretary of State made an award at Table 3, Item 3, Level 10. This was confirmed on appeal by the Pensions Appeal Tribunal for Scotland (PAT(S)). The Appellant appealed to the Upper Tribunal, arguing that the award should be at least at Table 3, Item 2, Level 8. The Upper Tribunal dismissed the further appeal, finding that the PAT(S) had correctly interpreted and applied the test for assessing whether a mental disorder was "permanent" for the purposes of the Table 3 descriptors.
Please note the Summary of Decision is included for the convenience of readers. It does not form part of the decision. The Decision and Reasons of the judge follow.
DECISION
The decision of the Upper Tribunal is to dismiss the appeal. The decision of the First-tier Tribunal did not involve an error of law.
REASONS FOR DECISION
Introduction
1. This appeal concerns a claim for compensation made under the Armed Forces Compensation Scheme ('AFCS') for Post-Traumatic Stress Disorder ('PTSD').
The Upper Tribunal oral hearing of the appeal
2. I held an oral hearing of this appeal in Edinburgh on 15 January 2025. The Appellant appeared in person, ably representing himself. The Respondent, the Secretary of State for Defence, was represented by Ms Megan Dewart, advocate, instructed by Morton Fraser MacRoberts LLP on behalf of Veterans UK. I am grateful to both the Appellant and Ms Dewart for their clear and helpful oral and written submissions.
A summary of the Upper Tribunal's decision
3. I dismiss the claimant's further appeal to the Upper Tribunal. This is because the decision of the Pensions Appeal Tribunal does not involve any material legal error.
4. To protect the Appellant's privacy, I refer to him in this decision in those terms, rather than by name. To avoid the risk of 'jigsaw identification', I also provide only the barest information about the factual background to the appeal.
The factual background to this appeal
5. The Appellant is now aged 45. He served in the Royal Air Force between 1979 and 2017. He had deployed to Afghanistan and also as a Reaper pilot working out of Las Vegas, USA. His rank on discharge was Flight Lieutenant and he had served as a fast jet pilot, instructor and examiner. The Veterans UK decision-maker, acting on behalf of the Secretary of State for Defence, decided that the Appellant was entitled to an AFCS award on the basis of his PTSD at Table 3, Item 3, Level 10 of the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011 (SI 2011/517, 'the 2011 Order'). The Appellant, arguing that he qualified for an award for PTSD at either Table 3, Item 2, Level 8 or Table 3, Item 1, Level 6, appealed to the Pensions Appeal Tribunal, which refused his appeal. The Appellant now appeals to the Upper Tribunal against the decision of the Pensions Appeal Tribunal ('the Tribunal').
The legal framework
6. Schedule 3 to the 2011 Order includes nine Tables which list the categories of injury for which compensation may be awarded under the AFCS, from Table 1 (Burns) through to Table 9 (Musculoskeletal disorders). The Tables identify different levels of severity of category of injury, in descending order (so a Level 8 injury is more serious than a Level 10 injury). For each level, the Table relies upon a short "Description of injury and its effects" (known as the "descriptor"). Each level then provides for a tariff lump sum payment for that descriptor or "Item", the amount of which varies significantly between different levels of injury (as set out in Table 10 of Schedule 4; see also Article 16(2)). Thus, Table 3 of Schedule 3 to the 2011 Order, together with its footnotes, provides as follows for the purpose of compensation for mental disorders:
Table 3 - Mental disorders(*)
Item
Column (a)
Column (b)
Level
Description of injury and its effects ("descriptor")
A1
4
Permanent mental disorder causing very severe functional limitation or restriction(aa)
1
6
Permanent mental disorder, causing severe functional limitation or restriction(a)
2
8
Permanent mental disorder, causing moderate functional limitation or restriction(b)
3
10
Mental disorder, causing functional limitation or restriction, which has continued, or is expected to continue for 5 years
4
12
Mental disorder, which has caused, or is expected to cause functional limitation or restriction at 2 years, from which the claimant has made, or is expected to make, a substantial recovery within 5 years
5
13
Mental disorder, which has caused, or is expected to cause, functional limitation or restriction at 26 weeks, from which the claimant has made, or is expected to make, a substantial recovery within 2 years
6
14
Mental disorder, which has caused or is expected to cause, functional limitation or restriction at 6 weeks, from which the claimant has made, or is expected to make, a substantial recovery within 26 weeks
(*) In assessing functional limitation or restriction in accordance with article 5(6) account is to be taken of the claimant's psychological, social and occupational function.
(*) Mental disorders must be diagnosed by a clinical psychologist or psychiatrist at consultant grade.
(aa) Functional limitation or restriction is very severe where the claimant's residual functional impairment after undertaking adequate courses of best practice treatment, including specialist tertiary interventions, is judged by the senior treating consultant psychiatrist to remain incompatible with any paid employment until state pension age.
(a) Functional limitation or restriction is severe where the claimant is unable to undertake work appropriate to experience, qualifications and skills at the time of onset of the illness and over time able to work only in less demanding.jobs.
(b) Functional limitation or restriction is moderate where the claimant is unable to undertake work appropriate to experience, qualifications and skills at the time of onset of the illness but able to work regularly in a less demanding job.
7. There are several other provisions of particular note in the 2011 Order. Article 16(1) provides as follows:
16.—(1) Subject to articles 25 and 26—
(a) benefit for injury is payable only in respect of an injury for which there is a descriptor;
(b) where an injury may be described by more than one descriptor, the descriptor is that which best describes the injury and its effects for which benefit has been claimed; and
(c) more than one injury may be described by one descriptor.
8. The proper application of Article 16 was considered by the Court of Appeal in Secretary of State for Defence v Duncan and McWilliams [2009] EWCA Civ 1043 (especially at [56] and [57]). As the Court stated, it "requires a careful analysis of the facts and then a consideration of which descriptor is the most appropriate".
9. In addition, Table 3 must be read in the context of Article 5, which provides further interpretative provisions for descriptors. Thus, Article 5(3) provides that:
(3) The term " functional limitation or restriction" in relation to a descriptor means that, as a result of an impairment arising from the primary injury or its effects, a person—
(a) has difficulty in executing a task or action; or
(b) is required to avoid a task or action because of the risk of recurrence, delayed recovery, or injury to self or others.
10. Furthermore, Article 5(6) specifies that:
(6) Functional limitation or restriction is to be assessed by—
(a) taking account of the primary injury and its effects; and
(b) making a comparison between the limitation and restriction of the claimant and the capacity of a healthy person of the same age and sex who is not injured or suffering a health condition.
11. Finally, and most relevantly, Article 5(7)(a) provides as follows:
(7) Functional limitation or restriction is —
(a) "permanent" where following appropriate clinical management of adequate duration—
(i) an injury has reached steady or stable state at maximum medical improvement; and
(ii) no further improvement is expected.
12. It will be noted that Article 5(7)(a) defines "permanent" where it is used in the context of a "functional limitation or restriction" being permanent rather than in the context of a "permanent mental disorder". That said, there is undoubtedly a degree of overlap in the respective meanings, as identified in JH v Secretary of State for Defence (AFCS) [2024] UKUT 191 (AAC):
23. Both counsel confirmed in the course of the Upper Tribunal proceedings that neither party sought to challenge the Tribunal's approach to the meaning of "permanent" for the purpose of Table 3. This agreed approach is relevant to understanding the context of the appeal. The Tribunal declined to adopt a prescriptive definition of the term "permanent" (as in "permanent mental disorder", in effect the gateway to an award at levels 4, 6 or 8, namely Items A1, 1 and 2) but expressed the following views.
24. First, the dictionary definition of "permanent" implied something that lasted indefinitely without change, whereas mental disorders "commonly change as people respond to treatment and medication". The dictionary definition, applied in isolation, was therefore too "simplistic" (paragraph 54).
25. Second, the definition of "permanent" in Article 5(7)(a) of the 2011 Order was not directly applicable, because that definition governed the meaning of "permanent functional limitation or restriction" in Table 3 and not the permanence or otherwise of the mental disorder itself (paragraph 50).
26. Third, however, the Tribunal considered that the Article 5(7)(a) definition provided a "useful guide", noting that "It stands to reason that if there has not been appropriate clinical management of the mental disorder, maximum medical improvement has [not] been reached, and that common treatment options are available but have not been undertaken, then those are relevant factors in deciding if a mental disorder is permanent or not" (paragraph 54).
The Pensions Appeal Tribunal's decision in this case
13. In the reasons for its decision in the instant case, the Pensions Appeal Tribunal set out the Appellant's case and his evidence in some detail (paras 4-6). I would only note in passing that paragraph 5 of the Tribunal's reasons is over one page in length, making it somewhat dense and rather difficult to follow. The observation by Sedley LJ in Jasim v Secretary of State for the Home Department [2006] EWCA Civ 342 at [4], namely that a tribunal's reasons need to be set out in "manageable paragraphs" is very much in point here. However, I recognise this is a question of presentation rather than substance. The Tribunal then briskly summarised the case as made by the Secretary of State (paras 7-8) before setting out its findings of fact in admirably concise terms (paras 9-20). Having also set out the relevant and central legislative provisions (para 21), as also noted above, the Tribunal then explained the reasoning for its decision as follows:
22. The tribunal considered the evidence and the submissions having regard to the requirements of tariff Table 3. The tribunal was satisfied on the evidence that the appellant has functional limitation due to the accepted condition. He left service in 2017 and continued to have treatment for PTSD post service with V1P [Veterans First Point]. The tribunal accepted that there was evidence contained in the SOC [Statement of Case] that entitled it to reach the view that the due to treatment both in service and after service the appellant's condition has improved however the condition has continued for five years and fluctuates. The tribunal noted that the appellant has continued with the same antidepressant treatment for several years which reduces his symptoms. The appellant said that he was waiting for a psychiatric referral which he suggested had been outstanding for a couple of years. At his most recent G.P. appointment, the patient did not ask for the referral to be followed up and his G.P. did not refer to any outstanding referral in her most recent report which had been added to the SOC. In his evidence the appellant was unclear about how the psychiatric assessment might be progressed and had taken no steps to chase it up. The appellant had previously disengaged with treatment and said that with hindsight he might have benefitted further treatment. The appellant ruled out changing his current medication even though that might enable him to be considered for a flying role. The tribunal was not satisfied that the evidence supported a finding that the appellant has a permanent mental disorder.
23. It was clear from listening to the appellant that he is very proud of his military achievements and not being able to fly has been a source of sadness and disappointment for him. The appellant referred broadly to some previous military colleagues' progress post service and he compares his civilian role less favourably to theirs. Such comparisons cannot be considered by the tribunal reaching a decision which must be decided on the evidence.
24. In considering the submissions from Ms Gale that the appellant had a permanent mental disorder (either severe or moderate), the tribunal decided that the test of permanence had not been met on the evidence. There was an initial course of EMDR in service with a CPN with reported benefit. The second planned trauma focused treatment in 2020 did not take place and in the view of the therapist at the time was necessary to address symptoms of PTSD and functioning (SOC 128). The appellant has been referred by his GP to an NHS consultant psychiatrist for assessment around any further requirement for treatment but this has not taken place. For these reasons the tribunal did not find that appropriate clinical management of adequate duration had taken place thus far or that no further improvement is expected.
25.The degree of functional limitation or restriction is not such to bring the appellant into items 1 or 2 on Table 3. The appellant gave evidence that he is working in a management role. The tribunal noted that the appellant has been employed by the Civil Aviation Board since 2020. He gave evidence about the nature of his employment which the tribunal decided was one with a significant degree of responsibility and oversight.
26. For the above reasons, the tribunal decided that the appellant's condition is correctly placed on table 3 item 4 level 10.
The Appellant's grounds of appeal
14. In his original application to the Pensions Appeal Tribunal for permission to appeal, the Appellant advanced two principal grounds of appeal. The first was that the Tribunal had failed to have proper regard to the first footnote to Table 3, namely the need to consider the claimant's psychological, social and occupational function in assessing functional limitation or restriction for the purposes of Article 5(6). The second was that the Tribunal had incorrectly applied Article 5(7) with respect to both the permanent nature of his mental health condition and also his functional limitation. In the light of those grounds of appeal the President of Pensions Appeal Tribunals for Scotland granted permission to appeal to the Upper Tribunal.
15. In the course of the Upper Tribunal proceedings, the Appellant further developed his grounds of appeal. As set out in his skeleton argument for the oral hearing, his refined grounds of appeal were four-fold. Ground 1 focussed on what was contended to be the Tribunal's misapplication of Article 5(7) and the issue of permanence. Ground 2 alleged a failure to correctly apply the Table 3 descriptors and in particular footnotes (a) and (b). Ground 3 argued that insufficient weight had been given by the Tribunal to the Appellant's psychological, social and occupational functioning, while Ground 4 submitted that the Tribunal had failed to provide adequate reasons for its decision. The Appellant expanded on these grounds of appeal in his carefully argued and eloquent oral submissions. The Appellant gave a very clear account of his PTSD symptoms and explained why, so far as he (and, he sought to emphasise, his treating physicians) was concerned, he suffered from a permanent mental disorder.
The Respondent's submissions in outline
16. The Respondent's core submission was that the Tribunal had correctly identified the question which it was required to answer, namely which single descriptor was the most appropriate for the Appellant's condition. In doing so, Ms Dewart submitted, it had carried out a detailed and careful analysis of the facts and had correctly directed itself on the legal test for permanence of mental disorder, which it was required to consider for the purposes of the descriptor in Item 2. Once the Tribunal had determined that the appellant's mental disorder was not permanent, on the basis of the evidence which was before it, and having regard to whether there had been appropriate clinical management and whether common treatment options were available but had not been undertaken, the appropriate descriptor could not be Item 2 of Table 3 but was at best Item 3, as awarded.
Analysis
17. Realistically the key descriptors potentially at issue in this appeal before the Pensions Appeal Tribunal were Item 2 and Item 3 from Table 3. The distinguishing feature between those two descriptors is the issue of the permanence (or otherwise) of the mental disorder. The requirement for a "permanent mental disorder" thus acts as a gateway for entitlement to Item 2 (and above) in Table 3. If permanence cannot be established, the award must be at Item 3 (or lower, depending on the satisfaction of further criteria). It follows that the central question on this further appeal is whether there was any error of law in the Pensions Appeal Tribunal's decision which concluded that the Appellant's mental disorder was not "permanent". A disagreement over the facts is insufficient. It also follows that the fate of Ground 1 will be decisive for this further appeal - the question of the permanence of the mental disorder is the crux of the case. If Ground 1 cannot be made out, the other grounds of appeal necessarily fall away as they will not be material to the outcome of the appeal.
18. In practice, as Ms Dewart submitted, there may be two ways of approaching the question as to whether a case falls on the Item 2 or Item 3 side of the line, which may be conveniently referred to as a 'bottom up' approach and a 'top down' approach. The 'bottom up' method is to ask first whether there is a mental disorder causing a functional limitation or restriction and then secondly to assess whether that mental disorder is permanent. The 'top down' approach is to determine first whether there is a permanent mental disorder and, if not, to decide whether the mental disorder "has continued, or is expected to continue for 5 years". Ms Dewart suggested that the first method, as adopted by the Tribunal in this case, was arguably the more appropriate approach. I am not sure that will necessarily be right in every case, as much must depend on the factual matrix. It may be that on the facts of any given case it is clear from the outset that the mental disorder cannot be characterised as permanent, in which event it may be simplest to adopt the top down approach. However, I do agree with Ms Dewart that nothing turns on the order of enquiry that is adopted. What matters is that the relevant decision-maker (be that the Veterans UK officer or the tribunal) ask themselves whatever are the relevant questions which then go to justify their selection of the appropriate descriptor as per Article 16(1).
19. So what then was the approach of the Tribunal in this case? As already noted, the Tribunal recorded a comprehensive narrative account of the Appellant's evidence (at para 5). The Tribunal went on to make findings of fact in relation to the permanency of his medical condition and the treatment he had undergone (paras 9-20). These were helpfully summarised by Ms Dewart in her skeleton argument as follows:
(i) The appellant was first referred to DCMH Cranwell in 2015. He was referred for CBT. He completed EMDR with a CPN (para 11);
(ii) The appellant is prescribed an anti-depressant (Venlafaxine) which stabilises his symptoms. He does not wish to change to another medication which may allow him to return to flying while treating the symptoms of his illness (para 12);
(iii) the appellant had ongoing symptoms of low self-esteem, anxiety, disturbed sleep and avoidance (para 13);
(iv) the appellant had been referred to V1P and a further course of EMDR was planned but did not happen (para 14);
(v) The V1P counsellor considered that the aim of the EMDR was to "address current PTSD symptomology related to past military events which are currently impairing the client within work, social and general functioning." The planned treatment did not take place due to the relocation of the therapist (para 15);
(vi) His treatment was interrupted due to the Covid-19 pandemic restrictions; his new therapist did not think that he required further EMDR sessions as he had the tools to deal with ongoing symptoms. The appellant was offered ongoing support for low self-esteem and anxiety. The appellant disengaged with further treatment through V1P (para 16);
(vii) The appellant is prohibited from flying due to the medication he is receiving. He does not wish to change to another medication which may allow him to return to flying while treating the symptoms of his illness (para 18).
20. At paragraph 22 the Tribunal then set out its reasoning on the appropriate descriptor under Table 3 for the Appellant's mental disorder. As Ms Dewart submitted, paragraph 22 of the Tribunal's reasons did five things. In short, it decided that the Appellant's functional limitation was due to his PTSD, it decided that his condition had lasted for more than 5 years and fluctuated, it considered the clinical management of his condition, it considered the treatment options he had had, and it identified the key evidence in relation to both the clinical management and treatment options. The Tribunal provided further reasoning on its decision that the Appellant's mental disorder was not permanent at paragraph 24. It relied upon the evidence that there had been an initial course of EMDR with a reported benefit; that a second planned trauma focussed treatment in 2020 had not taken place and in the view of the therapist at the time was necessary to address symptoms of PTSD and functioning, and that his GP had referred him to an NHS consultant psychiatrist for an assessment for further treatment but this had not taken place. The Tribunal concluded that "for these reasons the tribunal did not find that appropriate clinical management of adequate duration had taken place thus far or that no further improvement is expected".
21. As such, I am satisfied the Tribunal applied the correct legal test for assessing whether the Appellant's mental disorder was permanent. The findings that it made - both in terms of primary fact and in terms of evaluative judgement - were ones that were reasonably open to the Tribunal on the evidence before it. At their heart the Appellant's arguments in support of Ground 1 boiled down to a disagreement with the findings of fact made by the Tribunal and the conclusions it drew from the evidence. As Ms Dewart observed, it is possible, given the multi-factorial nature of the exercise, that a different tribunal might (and I put it no higher than that) have reached a different conclusion on the central question as to the permanence of the Appellant's mental disorder. However, that is not the test that is to be applied in an error of law jurisdiction. As Lord Hoffmann observed in Moyna v Secretary of State for Work and Pensions [2003] UKHL 44; [2003] 1 WLR 1929 at [20], "In any case in which a tribunal has to apply a standard with a greater or lesser degree of imprecision and to take a number of factors into account, there are bound to be cases in which it will be impossible for a reviewing court to say that the tribunal must have erred in law in deciding the case either way: see George Mitchell (Chesterhall) Ltd v Finney Lock Seeds Ltd [1983] 2 AC 803, 815-816." Thus, in o rder to succeed on Ground 1, the Appellant would need to show that no reasonable tribunal, properly directing itself as to the relevant law, could have reached the same conclusion on the evidence before it. However, the Appellant does not come close to surmounting that demanding hurdle.
22. That being so, Ground 1 fails and so the appeal must be refused. In those circumstances the remaining three grounds of appeal fall away and need not be addressed in any detail. Grounds 2 and 3 are both concerned with the Tribunal's assessment of the degree of functional limitation or restriction. The Tribunal concluded this was not 'severe' or 'moderate' for the purposes of Items 1 and 2 of Table 3, giving brief reasons at paragraph 25. However, given its conclusion on the issue of permanence, there was in practice no need for the Tribunal to have considered this issue. Nor does the reasons challenge in Ground 4 assist. The test for adequacy of reasons is well-established and is the same on both sides of the border. Thus, in Scotland, as Lord President Emslie explained in Wordie Property Co Limited v Secretary of State for Scotland 1983 SLT 345 (at 348), "The decision must, in short, leave the informed reader and the court in no real and substantial doubt as to what the reasons for it were and what were the material considerations which were taken into account in reaching it." There is ample authority to support the proposition that reasons have to be adequate, not perfect or optimal, and the Tribunal's reasons in this case meet that standard.
Conclusion
23. I therefore conclude that the decision of the First-tier Tribunal does not involve any error of law. I accordingly must dismiss the appeal.
Nicholas Wikeley
Judge of the Upper Tribunal
Authorised by the Judge for issue on 31 January 2025
NCN: [2024] UKUT 395 (AAC)
Appeal No. UA-2023-000558-AFCS
IN THE UPPER TRIBUNAL
ADMINISTRATIVE APPEALS CHAMBER
Between:
Secretary of State for Defence
Appellant
- v -
HM
Respondent
Before: Upper Tribunal Judge Church
Hearing date(s): 05 September 2024
Mode of hearing: Remote video hearing by CVP
Representation:
Appellant: Ms Jennifer Seaman of counsel, instructed by the Government Legal Department
Respondent: Mr Thomas Banks of counsel, instructed by Hilary Meredith Solicitors
On appeal from:
Tribunal: First-tier Tribunal (War Pensions and Armed Forces Compensation Chamber)
Tribunal Case No: AFCS/00498/2021
Tribunal Venue: Arnhem House, Leicester (remote hearing by video)
Decision Date: 10 January 2023
RULE 14 Order
Pursuant to rule 14(1) of the Tribunal Procedure (Upper Tribunal) Rules 2008, it is prohibited for any person to disclose or publish any matter likely to lead members of the public to identify the respondent in these proceedings. This order does not apply to: (a) the respondent; (b) any person to whom the respondent discloses such a matter or who learns of it through publication by the appellant; or (c) any person exercising statutory (including judicial) functions where knowledge of the matter is reasonably necessary for the proper exercise of the functions.
SUMMARY OF DECISION
WAR PENSIONS AND ARMED FORCES COMPENSATION (56)
56.5 Armed Forces Compensation Scheme
This decision considers the proper interpretation of, and approach to, Article 11 of the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011.
In particular, it considers:
· when Article 11 must be considered by a tribunal, and
· where an injury was sustained or worsened by participation in sporting activity, what is required to fall within the exceptions in Article 11(6) to the exclusion of benefit in Article 11(5).
It decides that the sport of rugby has been "approved" by the Defence Council for the purposes of Article 11(6)(a) but subject to conditions, including that involvement in civilian rugby is at the participant's own risk and must be done in the participant's own time. Therefore, while participation in civilian rugby is not prohibited, the Defence Council's approval of the sport of rugby for the purposes of Article 11(6)(a) of the AFCS Order does not extend to civilian (including civilian charity) rugby.
It decides that the requirement in Article 11(6)(a) that a sporting event and the organisation and training for it be "recognised" by the relevant Service prior to the event requires more than simply an acknowledgement of the awareness by someone in the chain of command that the event will occur and may require training, and that clinical advice on injury management given by a medical officer in the course of medical appointments is incapable of amounting to recognition by the Service for the purposes of Article 11(6)(a).
It decides that while a one-off civilian charity rugby match may provide some benefit in terms of maintaining physical fitness, such a benefit is merely incidental: its purpose is to raise funds for charity and to raise the charity's profile, rather than to meet or maintain physical standards required of members of the forces, and it does not satisfy the requirements for the exception in Article 11(6)(b) to apply.
SM v SSD [2018] AACR 4 followed.
Please note the Summary of Decision is included for the convenience of readers. It does not form part of the decision. The Decision and Reasons of the judge follow.
DECISION
The decision of the Upper Tribunal is to allow the appeal. The decision of the First-tier Tribunal involved an error of law. Under section 12(2)(a), b(ii) and (4) of the Tribunals, Courts and Enforcement Act 2007, I set the decision aside and remake the decision as follows:
"The appeal is dismissed. The claimant is not entitled to an award of compensation in relation to his left knee injury. The Secretary of State's disallowance decision of 30 January 2018 is confirmed."
REASONS FOR DECISION
Introduction
1. This appeal is about the scheme established by the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011, SI 2011/517 (the "AFCS Order") to compensate people for illness or injury attributable (wholly or partly) to their service in the armed forces or reserve forces (the "AFCS"). The AFCS is administered by Veterans UK on behalf of the Secretary of State.
2. This appeal raises the issue of when Article 11 of the AFCS Order is relevant, and how that Article should be interpreted and applied.
The agreed factual and procedural background
3. The Respondent (to whom I shall refer in this judgment as "the claimant") served with the Royal Navy from 16 September 2011 until 8 February 2018, when he was medically discharged.
4. This appeal is brought by the Secretary of State with the permission of the First-tier Tribunal.
5. The claimant injured his right knee playing rugby for the Royal Navy. He underwent reconstructive surgery in July 2012 and on 12 August 2013 was graded "P2" (see page 243 of the appeal bundle). This signified that the claimant was fit for a return to full duties, but it did not amount to a clinical assessment that he was either injury-free or symptom-free.
6. On or around 24 July 2014 the claimant sought medical advice from Dr Iddles, a medical officer at HMS Nelson, regarding pain in his right knee. He was referred to physical rehabilitation (see page 125 of the appeal bundle).
7. On 27 July 2014 the claimant played in a civilian charity rugby match (the "Fixture").
8. The Fixture was not organised by the Royal Navy (see §30 of the claimant's witness statement at page 53 of the UT bundle), although the claimant was not forbidden to play in it.
9. In the course of the Fixture, the claimant injured his left knee. He had reconstructive surgery on his left knee in February 2015.
10. On or around 23 May 2015 the claimant twisted his left knee going down the stairs at his service accommodation at HMS Drake.
11. On or around 8 December 2017 the claimant made a claim under the AFCS for compensation in respect of his left knee injury.
12. On 30 January 2018 the Secretary of State disallowed the claimant's claim for compensation in respect of his left knee injury. In the disallowance decision, which was addressed to the claimant, it was explained that the Secretary of State:
"does not accept that your left knee injury is wholly or predominantly caused by service. The evidence shows that you sustained an injury to your left knee whilst playing charity/civilian rugby in 2014. You were not carrying out a service obligation at the time of your injury and you had not presented with your left knee prior to this incident."
13. The claimant applied for reconsideration of the disallowance decision. When this was unsuccessful, he appealed to the First-tier Tribunal (War Pensions and Armed Forces Compensation Chamber) on the basis that his previous service-related injury to his right knee was a partial cause of the injury to his left knee, and therefore his left knee injury was partly caused by service.
Factual issues in dispute
14. There is some dispute in relation to the process cause of the claimant's left knee injury as well as whether that injury was predominantly caused by service. However, because of what I have decided in relation to Article 11, I do not need to decide these matters in this appeal.
15. What the claimant was told by Service physiotherapists and by Dr Iddles at appointments regarding his left knee injury in the days leading up to the Fixture is disputed. For the purposes of this appeal, I have taken the claimant's evidence at face value, and proceeded on the basis that he was "given the green light" by Dr Iddles to play rugby (as the three-member panel of the First-tier Tribunal which heard his appeal on 9 January 2023 (the "Tribunal") found to be the case).
16. There is also a factual dispute as to whether the Defence Council has "approved" the sport of rugby generally for the purposes of Article 11(6)(a) of the AFCS Order and whether Dr Iddles or the Service physiotherapists who treated the claimant had authority to "recognise" the Fixture, or the organisation and training for it, on behalf of the Royal Navy, and whether they in fact did so.
17. I discuss these matters below in the context of my analysis of Article 11 and its proper application.
Legal framework
18. Section 1(2) of the Armed Forces (Pensions and Compensation) Act 2004 (the "2004 Act") permitted the Secretary of State by Order to "establish schemes which provide for benefits to be payable to or in respect of a person by reason of his illness or injury (whether physical or mental), or his death, which is attributable (wholly or partly) to his service in the armed forces or the reserve forces". The Secretary of State established the AFCS pursuant to the 2004 Act by way of the AFCS Order.
19. The articles of the AFCS Order that are most relevant for the purposes of this appeal are Articles 8 and 11. They provide (so far as applicable):
"Article 8 - Injury caused by service:
"(1) Subject to articles 11 and 12, benefit is payable to or in respect of a member of former member by reason of any 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 - Injury and death - exclusions relating to travel, sport and slipping and tripping
"... (5) Except where paragraph (6) or (9) apply, 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 participation in sporting activity, as –
(a) a player;
(b) a referee;
(c) an organiser or a representative of a particular sport or sporting organisation."
"(6) This paragraph applies where -
(a) the Defence Council have approved the sport or sporting activity as being a sport which enhances the fitness, initiative and endurance of members of the forces, and prior to the event, the relevant Service has recognised the particular sporting event and the organisation and training for it; or
(b) the sporting activity is approved by the Defence Council which is undertaken for the purpose of meeting and maintaining the physical standards required of members of the armed forces.
(7) For the purposes of paragraph 6(a), the Defence Council may approve a single sport or sporting activity or a class of such activities and may approve such activities unconditionally or subject to any specified condition.
...
(10) In this article –
...
(c) "sporting activity" includes an adventurous course or an adventurous expedition approved by the Defence Council."
The First-tier Tribunal's decision
20. The Tribunal allowed the claimant's appeal on the basis that his left knee injury was predominantly caused by service within the meaning of Article 8 of the AFCS (the "FtT Decision"). The FtT Decision is set out in the decision notice signed on 10 January (the "FtT Decision Notice"), as supplemented by the full written reasons issued on 22 February 2023 ("Full Reasons").
21. The Tribunal's route to the FtT Decision was somewhat involved. It made the following findings:
a. the injury to the claimant's right knee in 2011 (some years before the charity Fixture) was a "service cause", but while the right knee injury was a "substantial" cause of the left ACL injury it was not the "predominant" cause;
b. the medical advice given to the claimant on or around 24 July 2014 was "given by service medical officers" and was a service cause (see §10.2 of the FtT Decision Notice);
c. the medical advice given to the claimant on or around 24 July 2014 led the claimant to believe that he was "given the green light to play the game", and the claimant would not have returned to playing rugby in the Fixture had he been advised not to play by the medical team (see §11.2 of the FtT Decision Notice);
d. the claimant's decision to play in the Fixture was a non-service cause (see §10.2 of the FtT Decision Notice);
e. the playing of the Fixture (during which the left ACL injury was sustained) was a non-service cause (see §10.3 of the FtT Decision Notice); and
f. the claimant sustained the left ACL injury "when side stepping in the course of the game" and was "not caused by any collision, hard tackle or other trauma" (see §11.2 of the FtT Decision Notice).
22. The Tribunal said it "could not usefully distinguish the causal weight of the decision to play the charity match from that of actually playing the game, since they amount to the same thing" and so it proceeded to make a "composite assessment" of both. It decided that "deciding to play and playing the game" was a "major factor" contributing to the left knee ACL injury on 27 July 2014 about half of which was due to the medical advice ([Service Cause]) and half was due to [the claimant] wanting to play ([Non-Service Cause])" (see §11.2 of the FtT Decision Notice).
23. Ultimately, the Tribunal decided that "it was more likely than not that the contribution to causation of the previous right knee injury and the medical advice, taken together, was more than 50% of the cause of the left knee injury", so service causes preponderated and the claimant's appeal should be allowed (see §11.3 of the FtT Decision Notice).
24. In its Full Reasons the Tribunal referred to Article 11 of the AFCS and said:
"... we thought it likely the [Secretary of State for Defence] was right not to rely on it. It was within the knowledge and experience of the Tribunal that rugby had been approved by the Defence Council as being a sport which enhances the fitness, initiative and endurance of members of the forces. Further, as explained above, the Service physiotherapists had sanctioned [the claimant]'s return to rugby training and the service medical officer had been consulted on 24 July 2014 about the charitable rugby match on 27 July 2014. Accordingly, the Tribunal thought it likely the exception under Article 11(6) would have applied to any exclusion that might have been advanced by the [Secretary of State for Defence] under Article 11(5)."
The grounds of appeal and the parties' submissions
25. Permission to appeal was granted by Judge Siddique of the First-tier Tribunal. I later gave the Secretary of State permission to rely on amended grounds of appeal. The amended grounds are summarised below.
26. Ground 1: the First-tier Tribunal misapplied Article 11 of the AFCS because it mistakenly decided that the facts of this case brought the claimant within Article 11(6). It should instead have decided that the circumstances of this case did not fall within Article 11(6) of the AFCS because:
a. the Defence Council had not approved charitable rugby games as a sporting activity "which enhances the fitness, initiative and endurance of members of the forces" and the Royal Navy did not, prior to the event, recognise the Fixture or the organisation and training for it;
b. only the UK Armed Forces Sports Board, Single Service Sports Boards or unit commanders (and not service physiotherapists or service medical officers) have authority to recognise a sporting event and the organisation and training for it, and they did not do so in respect of the Fixture;
c. the sporting activities approved by the Defence Council which are undertaken for the purpose of meeting and maintaining the physical standards required of members of the forces are running, cycling, circuit training, weight training and other fitness activities, which are a separate category to sporting events, and do not include charity/civilian rugby matches.
d. due to the operation of Article 11(5), therefore, the claimant was not entitled to compensation for his injuries.
27. Ground 2: the First-tier Tribunal erred in law by failing to take into account relevant material facts, and consequently made an irrational finding that service was the predominant cause of his left knee injury.
28. The Secretary of State asks that the FtT Decision be set aside and asks me to remake the decision confirming the Secretary of State's disallowance of the claim in respect of the claimant's left knee injury.
29. The claimant resists the appeal. It was argued by Mr Banks on his behalf that Article 11 wasn't in issue in the appeal before the Tribunal, and what the Tribunal said about Article 11 was therefore obiter only. He argued that the appeal before the Upper Tribunal should be determined solely in relation to the Tribunal's decision making in relation to Article 8 of the AFCS Order, on which the FtT Decision was based.
30. He argued further that even if Article 11 was relevant to the appeal, the claimant's circumstances fell within the exceptions in both Article 11(6)(a) and Article 11(6)(b).
31. Mr Banks also argued that the Tribunal's findings of fact were open to it on the evidence as it assessed it, and there was nothing irrational about them.
32. The claimant maintains that the FtT Decision involved no material error of law, and should be confirmed.
Analysis
Was Article 11 of the AFCS Order in issue in the appeal before the Tribunal?
33. It appears that the arguments and evidence at the hearing before the Tribunal focused on the issue of whether the claimant's left knee injury was predominantly caused by service.
34. The relationship between Articles 8 and 11 of the AFCS Order was considered by the Upper Tribunal in SM v SSD [2018] AACR 4. At §17 Judge Rowland said:
"At first sight, there is no connection at all between articles 8 and 11 of the [AFCS Order], but article 11 in fact addresses a number of issues that have caused difficulty when considering the scope of both the civilian industrial injuries scheme and the war pensions scheme (which preceded the Armed Forces Compensation Scheme and where the issues was whether disablement is "attributable to service") and might otherwise cause difficulty when considering whether an injury was caused by service for the purposes of article 8. The object of article 11 therefore appears to be to introduce an element of clarity in those areas."
35. Judge Rowland expressed some doubt as to how successful this venture had been, and noted that there was an "untidy overlap" between the questions arising under articles 8 and 11. He went on (at §18) to say:
"Nonetheless, it will usually be unprofitable to consider whether injuries caused by travel, sport or slipping, tripping or falling might have been caused by service without considering at the same time whether the circumstances fall within an exclusion under article 11; if they do, that will be the end of the case. On the other hand, the fact that a claimant's case falls within one of the exceptions to the exclusions in article 11 is likely considerably to assist the claimant in showing that the relevant injury was caused by service..."
36. In SM v SSD Judge Rowland went on to say (at §18) that "some cases will effectively be determined under article 11, whereas others will effectively be determined under article 8".
37. In Stoddart v SSD UA-2020-000010-CAF Judge Hemingway said that the AFCS Order sets out a "structured approach" that a decision-maker, including a First-tier Tribunal, must follow. He said the first step was to consider whether the relevant injury has been caused wholly by service and on or after 6 April 2005. If the answer to that is "no" it must then consider whether service was the "predominant cause" of the injury. If the answer to that second question is also "no", that is "the end of the analytical process" (at §7). If, however, the answer to either of those questions is "yes" it is then necessary to consider whether an exclusion applies which would prevent benefit being payable. A finding that the injury had a cause that fell within one of the categories in article 11 (such as participation in sport) requires the decision maker to go on to consider whether one of the exceptions applies. He referred to SM v SSD, which he described as offering "what might be, at least in some cases, a helpful shortcut" (see §7).
38. The Tribunal explained in §21-24 of its Full Reasons why it didn't fully investigate matters relevant to Article 11. It acknowledged Judge Hemingway's statement in Stoddart v SSD that a tribunal which found an injury had been caused predominantly by service was obliged to go on to consider whether an exclusion, which would prevent benefit from being payable, applies. However, it inferred from what Judge Hemingway said in Stoddart v SSD that this applied only in an appeal in which the Secretary of State had advanced a case that Article 11 excluded the payment of benefit.
39. It "noted" that the Secretary of State had "not raised an issue under Article 11 in this appeal" (see §23 of its Full Reasons) and said that "[t]o the extent that the Tribunal considered Article 11, we thought it likely the [Secretary of State] was right not to rely on it" (§24 of its Full Reasons).
40. I find these statements puzzling because the Secretary of State made specific reference to Article 11 in his response to the claimant's appeal (see page 3 of the appeal bundle). He said:
"Article 8 provides that 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.
The Secretary of State notes the comments made by the Consultant Surgeon. However, the Secretary of State does not accept that your left knee injury is wholly or predominantly caused by service. The evidence shows that you sustained an injury to your left knee whilst playing charity/civilian rugby in 2014. You were not carrying out a service obligation at the time of your injury and you had not presented with your left knee prior to this incident."
41. I find that this response put Article 11 in issue in the appeal.
42. The Tribunal's comment on non-reliance suggests that a concession was made by the Secretary of State at the hearing, but this too would be puzzling, given the way that the AFCS Order is structured.
43. It doesn't matter whether one starts, as Judge Hemingway suggests, with the Article 8 questions, and then proceeds to the Article 11 questions if the answer to at least one of the Article 8 questions is answered in the affirmative, or whether one takes Judge Rowland's "short cut" of considering whether an exception within Article 11 applies from the start.
44. A case will only "effectively be determined" under Article 8 (without considering whether Article 11 applied) if it is decided that no benefit is payable under Article 8 because the injury is not wholly or predominantly attributable to service. Any decision that benefit is payable under Article 8 requires a second stage of consideration of Article 11 and its exceptions.
45. I don't see how the Tribunal can have considered Article 11 not to be relevant to the appeal, and not to be an issue that it needed to determine, given that it found that the injury to the claimant's knee was predominantly attributable to service. Article 8 is subject to Article 11, so a decision to award benefit under Article 8 cannot properly be made without considering the applicability of Article 11. As such, the Tribunal fell into error of law in deciding the appeal under Article 8 without making findings in relation to those matters identified in Article 11.
Was the Tribunal mistaken in its analysis of Article 11?
46. Although the Tribunal said it decided the appeal only on Article 8, it did provide a brief explanation of its thinking on Article 11, indicating that had the applicability of that provision been in issue it would still have allowed the claimant's appeal.
47. To decide whether the error of law I have identified was material it is therefore necessary for me to consider the Tribunal's analysis of Article 11. This is what it said (in §24 of its Full Reasons):
"It was within the knowledge and experience of the Tribunal that rugby has been approved by the Defence Council as being a sport which enhances the fitness, initiative and endurance of members of the forces. Further, as explained above, the Service physiotherapists had sanctioned the [claimant's] return to rugby training and the service medical officer had been consulted on 24 July 2014 about the charitable rugby match on 27 July 2014. Accordingly, the Tribunal thought it likely the exception under Article 11(6) would have applied to any exclusion that might have been advanced by the [Secretary of State] under Article 11(5)."
48. The Tribunal was an expert tribunal, and it was entitled to draw upon the expertise and experience of its members. However, its explanation doesn't address the fact that the Fixture was in relation to a civilian charity match, rather than a fixture organised by the Royal Navy or another service. Further, while the Tribunal made a finding (presumably based on the claimant's oral evidence at the hearing, which it found compelling) that the service physiotherapists had "sanctioned" his return to rugby training and the service medical officer had been consulted about the Fixture, it didn't explain how it decided based on those findings that the conditions in either Article 11(6)(a) or (b) were satisfied. In particular, it did not explain how it was satisfied that the "sanctioning" of a return to rugby training by the service physiotherapists and the consultation with the medical officer together amounted to "recognition" by the relevant Service of the Fixture and the organisation and training for it. As such, it is not adequately clear from the Tribunal's reasons that its error of law in failing to determine the issues outlined above in relation to Article 11 was not material.
How should the Tribunal have approached Article 11 and what did it need to say about it?
49. Rather than simply saying that the Tribunal didn't explain its decision making in relation to the Article 11 issues with adequate clarity, I think it appropriate to set out my analysis of Article 11 and how the Tribunal should have interpreted and applied it, and to give guidance on what a tribunal needs to say about it in its reasons for its reasons clear the hurdle of 'adequacy'.
50. Statutory interpretation requires the reader to identify the meaning of the words of the statute in their context. Part of that context is the legislative scheme of which the provision in question is a part, and an important part of understanding a provision's context is to understand the legislative purpose of the scheme as a whole. See R (PACCAR Inc and others) v Competition Appeal Tribunal [2023] UKSC 28, 1 WLR 2594 at [40]-[41] per Lord Sales JSC).
51. The same principles apply to the interpretation of secondary legislation such as the AFCS Order, with the added consideration that delegated legislation must be interpreted in the light of the enabling Act (in this case the 2004 Act), the legislative purpose of delegated legislation being assumed to be the purpose of the primary legislation from which it derives (see 'Bennion, Bailey and Norbury on Statutory Interpretation', 8th edition, at §3.17 and Virgin Media v NTL Pension Trustees II Ltd and ors [2024] EWCA Civ 843 at §63-68).
52. The legislative purpose of the 2004 Act and the AFCS is to provide state compensation to members of the armed (and reserved) forces where members suffer an injury of which service was the predominant cause. However, Article 8 is expressly stated to be subject to Articles 11 and 12 (see Article 8(1), as set out in §19 above).
53. Certain injuries are expressly excluded if they are not deemed to be attributable to service, such as injuries caused by, or occurring during, social events (Article 11(8)), or slipping or tripping (Article 11(3)), or home to duty travel (Article 11(1)), unless the injuries occur in specified circumstances linking them to service. Injuries caused by smoking, alcohol, drugs or sexual activity, events before service, certain hereditary illnesses or self-inflicted injuries are also excluded (Article 12(1)).
54. Article 11(5) is of particular relevance to this appeal. U nder Article 11(5) benefit is not payable in respect of an injury sustained, or worsened, wholly or partly by participation in sporting activity (whether as a player, referee or as an organiser or representative of a sport or sporting organisation). A clear finding as to whether the claimant's injury was sustained or worsened wholly or partly by participation in sporting activity in any of the relevant capacities is therefore required. In this case it was common ground that the left knee injury was sustained or worsened wholly or partly by the claimant's participation in the Fixture as a player.
55. Article 11(5) is itself subject to the exceptions in Article 11(6), and (not relevant to this appeal) Article 11(9)).
56. Article 11(6)(a) excepts from the Article 11(5) exclusion of entitlement, injuries sustained or worsened by participation in sport or sporting activities where (i) those sports or sporting activities have been "approved by the Defence Council as being a sport which enhances the fitness, initiative, and endurance of members of the forces" and (ii) the relevant Service has, prior to the event, "recognised the particular sporting event and the organisation and training for it".
57. Article 11(6)(b) provides a further exception where the injury is sustained in the course of sporting activities "approved by the Defence Council and undertaken for the purpose of meeting and maintaining the physical standards required of members of the forces".
58. So, in order to determine the applicability of Article 11(6)(a) to the claimant's situation, the Tribunal was required to answer the following questions:
a. was the sport of rugby union "approved" by the Defence Council as being a sport which "enhances the fitness, initiative and endurance of members of the forces"?
b. had the relevant Service "recognised" the Fixture and the organisation and training for it?
Has civilian/charity rugby been "approved" by the Defence Council?
59. The Tribunal said that it was "within the knowledge and experience of the Tribunal that rugby has been approved by the Defence Council as being a sport which enhances the fitness, initiative and endurance of members of the forces" (see §24 of the Tribunal's detailed written reasons). However, it didn't explain the evidential basis for that position. It should have done.
60. The AFCS Order doesn't specify how sports or sporting activity may be approved by the Defence Council. Miss Bara, a senior executive in the 'Defence People, Armed Forces People Support Compensation and Insurance team', provided a witness statement which sought to shed light on this. In it she referred to two policy documents published by the Ministry of Defence: document JSP 765, entitled 'Armed Forces Compensation Scheme Statement of Policy' ("JSP 765"), and document JSP 660 entitled 'Sport in the UK Armed Services' ("JSP 660"). She pointed the Upper Tribunal to §2.32 of JSP 765, which states that JSP 660 "sets out the types of sporting activities that are approved on behalf of the Defence Council by the UK Armed Forces Sports Board, Single Services Sports Boards or unit commanders" (emphasis added).
61. JSP 765 and JSP 660 are simply policy documents. They are not legislation. The operation of the AFCS is governed by the AFCS Order, not by policy documents. Nothing said in the policy documents can change how the AFCS operates, but these documents are helpful because they show how the Secretary of State seeks to implement the AFCS Order.
62. While JSP 660 refers to "approval" in the context of the approval by the Sports Council of national governing bodies (§11 a. of Chapter 1 of Pt 1), the approval of the constitution and articles of association of UKAF sports associations and amendments to them (§5 a. (3) and (4) and 6 a. of Annex A to Chapter 1 of Pt 1 of JSP 660), as well as approving grants and other funding to sports associations (see §11 of Annex A to Chapter 1 of Pt 1), it does not use the language of "approval" in relation to sports or sporting activities themselves as the AFCS Order does.
63. Neither does JSP 660 refer in terms to "enhancing the fitness, initiative and endurance" of members of the forces (as contemplated by Article 11(6)(a) of the AFCS Order). It does, however, refer to various benefits of service personnel engaging in sport such as contributing "to both mental and physical fitness, teamwork, leadership, self-discipline, determination, co-ordination, courage, competitive spirit, individual and collective resilience, and consequently military ethos" and it says that competitive sport plays a key role in operational capability, making "a significant contribution to operational effectiveness, fighting spirit and personal and collective development" .
64. JSP 660 also sets out categorisations of sports by reference to their eligibility for public funding (§11 et seq. of Chapter 1 of Pt 1). In Annexe E to Chapter 1 of Pt 1 of JSP 660 the sport of rugby (both union and league) is listed as a "Cat 1" sport for all services, and indeed Ms Seaman's submissions at the hearing proceeded on the basis that service rugby was approved, but that the approval did not extend to charity or civilian rugby.
65. Pt 2 of JSP 660 provides "practical guidance" for the organisation, administration and conduct of sporting activity in the UK armed forces. While the focus of that document is principally on participation in sports playing for UK armed forces teams in UK armed forces fixtures, it also deals with the circumstances in which service personnel may participate in civilian sport (see §10 of Chapter 1 of Pt 2) and charity sporting events (see §17 of Chapter 1 of Pt 2) as well as participation in international and elite events (see §22 of Chapter 1 of Pt 2).
66. Article 11(7) permits the Defence Council to approve sports subject to conditions, and §10 of Chapter 1 of Pt 2 of JSP 660 states:
"Service personnel participating in civilian sport at all levels, including national representation, have no duty status and do so at their own risk and in their own time. The MOD accepts no liability either for personal or third party accident. It is therefore essential that Service personnel involved in civilian sport take out the necessary insurance cover. At national level, athletes should make insurance arrangements with their appropriate [National Governing Body]."
67. Considering the matter in the round, I find that the sport of rugby has been approved by the Defence Council, but its approval is subject to conditions, including that involvement in civilian rugby is at the participant's own risk and must be done in the participant's own time. Therefore, while participation in civilian rugby is not prohibited, the Defence Council's approval of the sport of rugby for the purposes of Article 11(6)(a) of the AFCS Order does not extend to civilian (including civilian charity) rugby.
Was the Fixture, and the organisation and training for it, "recognised" by the relevant Service?
68. Even if I am wrong about the "approval" of the sport of rugby not extending to civilian rugby for the purposes of Article 11(6)(a), for the exception to apply the sporting event (i.e. the Fixture), and the organisation and training for it, must have been "recognised" by "the relevant Service" (which I'll call the "recognition requirement"). It is not in dispute that the "relevant Service" in this case is the Royal Navy.
69. The claimant's evidence was that he was seen by Service physiotherapists who "sanctioned" his return to rugby training, and he sought medical advice from Dr Iddles, a medical officer at HMS Nelson, who gave him "the green light" to play rugby in a few days' time (see §8 of the claimant's witness statement at page 45 of the appeal bundle).
70. The Tribunal accepted this evidence and, as I have explained above, I have taken this evidence at face value for the purposes of analysing the application of Article 11 to this appeal. The Tribunal said that it "thought it likely the exception under Article 11(6) would have applied to any exclusion that might have been advanced" under Article 11(5) (see §66 of the Tribunal's written reasons).
71. The recognition requirement in the second limb of Article 11(6)(a) gives rise to two issues:
a. what does "recognise" mean?
b. who may "recognise" an event, and the organisation and training for it, and how?
72. "Recognise" is not defined in the AFCS Order. Mr Banks, for the claimant, argued that because there was no requirement that the relevant Service permits, authorises or approves an event, the recognition requirement can be "no more than acknowledgement that the sporting event is happening (and where necessary that it may require training and organisation not done by the Navy)" (see §17(b)(ii) of Mr Banks's Skeleton Argument). Ms Seaman, for the Secretary of State, argued that a more formal process was required.
73. Reading the AFCS Order as a whole, and in the context of its legislative purpose, it is apparent that the requirement must be for more than a mere indication that the relevant Service is aware that the event is taking place. The word "recognise" is capable of bearing several different meanings. It is difficult to see why a requirement for "recognition" would be included if the word were to bear the meaning proposed by Mr Banks. The much more apposite meaning of "recognise" in the context in which it appears in the AFCS Order is the bestowing on the event of a formal status in the nature of an approval or sanction. The reason for such a requirement is the underlying policy that participation in civilian sporting events over which the Service has no control is at the risk of the individual and not of the Service/the AFCS.
74. The next issue is who may recognise a sporting event and the organisation and training for it, and how. Mr Banks argued that anyone in a position of authority in the naval chain of command was capable of satisfying the recognition requirement by acknowledging the existence of the Fixture, and that Dr Iddles, as a medical officer with responsibility for decisions affecting what the claimant could do in the course of his employment, had authority to provide recognition on behalf of the Service for these purposes.
75. Relying on the evidence of Miss Bara, Ms Seaman argued that it was not open to the Tribunal to find that the Fixture and the organisation and training for it was recognised by the Service physiotherapists or Dr Iddles, because only Armed Forces Sports Boards, Single Service Sports Boards or unit commanders were capable of providing such recognition. Miss Bara noted there was no record of any of those entities having recognised the Fixture or the organisation and training for it (see §5-6 of Miss Bara's witness statement) at page 22 of the appeal bundle, and the claimant didn't rely on anything other than the conversations with the physiotherapists and Dr Iddles.
76. As Mr Banks pointed out, Miss Bara used the words "authorise" and "approve" rather than "recognise" when discussing sporting events, and neither "authorisation" nor "approval" is required by Article 11(6)(a) (only "recognition"). However, given what I have said about the proper meaning of "recognition" in this context, that inconsistency is not material.
77. Returning to the circumstances of this appeal, taking the claimant's evidence as to what he was told at his appointments with the Service physiotherapists and Dr Iddles at face value, what is described amounts to clinical advice about the management of the claimant's injury and, at its highest, the giving of permission to train for and play in, the Fixture. It does not amount to "recognition" (properly understood) by the Service of the Fixture itself, or of the organisation and training for it. As such, it was incapable of satisfying the requirements of Article 11(6)(a).
Article 11(6)(b)
78. Mr Banks argued that even if the exception in Article 11(6)(a) wasn't satisfied, the exception in Article 11(6)(b) was made out because "sporting activity" includes rugby union, and rugby union is approved by the Defence Council, and Article 11(6)(b) does not require the sporting event to be "recognised".
79. While "sporting activity" is defined in the AFCS Order, rather unhelpfully it is given an inclusive, rather than an exclusive, definition: it states that it "includes an adventurous course or an adventurous expedition approved by the Defence Council", but it doesn't say what is excluded.
80. While Article 11(6)(a) refers to "sport or sporting activity", it is clear from the words that follow ("as being a sport which enhances the fitness, initiative and endurance of members of the forces...") that something being a "sporting activity" does not necessarily exclude it from being "sport".
81. However, for Article 11(6)(b) to apply, the sporting activity must be "undertaken for the purpose of meeting and maintaining the physical standards required of members of the forces".
82. While a one-off civilian charity rugby match may provide some benefit in terms of maintaining physical fitness, such a benefit is merely incidental: its purpose is to raise funds for charity and to raise the charity's profile, rather than to meet or maintain physical standards required of members of the forces.
83. For all these reasons I am satisfied that the Tribunal erred materially in law in its approach to, and interpretation of, Article 11(6) of the AFCS Order.
84. On its proper interpretation, the exclusion in Article 11(5) applies to the claimant's circumstances and neither exception in Article 11(6) applies. This is, therefore, a case in which consideration of Article 11 is "the end of the case", as Judge Rowland put it in SM v SSD.
85. It is not necessary for me to decide the matters raised by Ground 2 of the Secretary of State's grounds of appeal.
Disposal
86. While the making of findings about the process of the injury to the claimant's left knee and whether it was predominantly caused by service are matters that would tend to engage the expertise of the specialist members on the panel and would make a remittal appropriate, because I have decided that Article 11, properly applied, is "the end of the case" as far as eligibility for compensation under the AFCS is concerned, there is no need for such findings, and it is therefore appropriate for me to exercise my discretion in favour of remaking the FtT Decision myself.
Conclusion
87. The decision of the First-tier Tribunal involved an error of law. Under section 12(2)(a), b(ii) and (4) of the Tribunals, Courts and Enforcement Act 2007, I set the decision aside and remake the decision as set out at the beginning of this judgment.
Thomas Church
Judge of the Upper Tribunal
Authorised by the Judge for issue on 3 December 2024
Neutral Citation Number: [2024] UKUT 241 (AAC)
UT refs: UA-2023-001353-WP, UA-2023-001356-WP
IN THE UPPER TRIBUNAL
ADMINISTRATIVE APPEALS CHAMBER
On appeal from First-tier Tribunal (War Pensions and Armed Forces Compensation Chamber)
Between:
MH
Appellant
- v –
The Secretary of State for Defence
Respondent
Before: Upper Tribunal Judge Wright
Decision date: 7 August 2024
Decided on consideration of the papers
DECISION
The decision of the Upper Tribunal is to allow both appeals. The decisions of the First-tier Tribunal made on 2 March 2023 under references ASS/241/2022 and SD/69/2021 both involved an error on a material point of law and are set aside.
The Upper Tribunal is not able to re-decide the appeals. It therefore refers the two appeals to be redecided afresh by a completely differently constituted First-tier Tribunal, at an oral hearing.
This decision is made under section 12(1), 12 (2)(a) and 12(2)(b)(i) of the Tribunals Courts and Enforcement Act 2007
REASONS FOR DECISION
Introduction
1. This is an appeal against two decisions of the First-tier Tribunal made in a combined decision dated 2 March 2023 ("the FTT"). It is convenient to take each decision of the FTT separately.
ASS/425/2021 decision
2. The decision made by the FTT in this appeal was on an assessment appeal under section 5(1) of the Pensions Appeal Tribunals Act 1943 against the Secretary of State's decision to award an interim 60% assessment to the appellant. This interim assessment of 60% disablement was in respect of two conditions found to be attributable to service: shrapnel wounds abdomen, right arm, left leg and right thigh; and post-traumatic stress disorder.
3. The crucial aspect of this decision of the FTT was to reduce the interim assessment to 40%. The critical reasons for the FTT making this reduction on the appellant's appeal are set out in paragraph 40 of its reasons for decision.
"40. This was not a decision which the Tribunal had taken lightly. Further, at the outset of the hearing, the appellant and his representative, Mr Goff of counsel, were informed that the Tribunal had the power to increase an award, to leave the award as it is, or to remove it altogether. It was explained that whilst no decision had been made and would only be made after all the evidence had been heard, the papers indicated that the existing 60% award may be at risk if the appellant went ahead with the appeal. A short adjournment was allowed for the appellant to speak with his legal representative, following which it was confirmed that he did wish to proceed."
4. In my judgement, the FTT erred in law at the outset of the hearing by failing to show that it acted lawfully in its decision to bring into issue on the appeal whether a lower percentage assessment of disablement may be awarded on the appeal.
5. The provision in section 5B(a) of the Pensions Appeal Tribunals Act 1943 applied on this appeal to the FTT. In all material particulars, it is an identical provision to that found in section 12(8)(a) of the Social Security Act 1998. One of the leading social security cases on the exercise of the power found in section 12(8)(a) of the Social Security Act 1998 is R(IB)2/04 (I take it that it is R(IB)2/04 to which the FTT intended to refer as R(IB)2/05 is not on section 12(8)(a).) Although R(IB)2/04 does set out, as the FTT noted, that the First-tier Tribunal on an appeal can make any decision that it was open to the Secretary of State to take in the decision under appeal, the FTT failed to take account, and so direct itself properly, on what was said in R(IB)2/04 about the proper and fair exercise of the power to decide an issue the Secretary of State could have decided but did not decide (that is, reducing the percentage assessment).
6. In addressing the discretion to consider an issue not raised by the appeal, the Tribunal of Commissioners said the following in paragraph [94] of R(IB)2/04:
"94. There must, however, be a conscious exercise of this discretion and (if a statement of reasons is requested) some explanation in the statement as to the reasons why it was exercised in the manner it was. In exercising the discretion, the appeal tribunal must of course have in mind, in particular, two factors. First, it must bear in mind the need to comply with Article 6 of the Convention and the rules of natural justice. This will involve, at the very least, ensuring that the claimant has had sufficient notice of the tribunal's intention to consider superseding adversely to him to enable him properly to prepare his case. The fact that the claimant is entitled to withdraw his appeal any time before the appeal tribunal's decision may also be material to what Article 6 and the rules of natural justice demand. Second, the appeal tribunal may consider it more appropriate to leave the question whether the original decision should be superseded adversely to the claimant to be decided subsequently by the Secretary of State. This might be so if, for example, deciding that question would involve factual issues which do not overlap those raised by the appeal, or if it would necessitate an adjournment of the hearing."
7. On the face of the FTTs reasoning at paragraph 40 of its reasons for its decision, its concern to 'warn' the appellant at the outset of the hearing about its powers was not a general one that after consideration of the oral evidence an issue might arise about making a lower percentage assessment than 60% for disablement. Rather, the FTT's concern was more concrete and based on the paper evidence indicating that the existing 60% award may be at risk if the appellant went ahead with the appeal. What the paper evidence indicated is not explained. Nor has the FTT made clear that an explanation was given to the appellant and his representative of what it was in the paper evidence that perhaps stood in favour of a lower percentage assessment than 60%.
8. Following case law such as Hooper –v- SSWP [2007] EWCA Civ 495 (R(IB) 4/07), BTC –v- SSWP [2015] UKUT 155 (AAC) and ET v SSWP (PIP) [2017] UKUT 478 (AAC), the FTT's analysis should have started with whether the evidence in the papers brought into issue on the appeal whether a lower percentage award may be merited. On the face of it, neither the appellant nor the Secretary of State was making a lower award an issue on the appeal: the Secretary of State was supporting his 60% decision and the appellant was seeking a higher award. As the appellant has pointed out, in the decision letter to the appellant of 9 December 2019, the Secretary of State said that the appellant's current assessment of 60% "has been maintained" and was "still correct". If a lower award arose obviously from the paper evidence and so was an issue on the appeal, the FTT was obliged by section 5B(a) to consider it, if the appeal continued. Moreover, in order to make any 'warning' effective, following BTC the FTT ought to have pointed out to the appellant at the outset of the hearing what specifically it was in the paper evidence that brought the making of a lower award into issue on the appeal.
9. If, on the other hand, the evidence at the outset of the hearing did not obviously raise entitlement to a lower percentage award as an issue on the appeal, this left the FTT with a discretion whether to bring a lower award into issue on the appeal. Following R(IB)2/04, that is a judicial discretion and proper reasons had to be given for exercising it. If this was the First-tier Tribunal's analysis at the outset of the hearing of this assessment appeal, in my judgement it did not give adequate reasons for why it was exercising this discretion. Again, in order to make any 'warning' effective, following BTC the FTT ought to have pointed out to the appellant at the outset of the hearing what specifically in the evidence had led it to exercise its power to bring a lower percentage assessment into issue on the appeal.
10. It is unclear from the FTT's reasoning which of these two alternatives under section 5B(a) it was taking.
11. Further, in my judgement the effectiveness of any 'warning' and the time given to the appellant and his representative to digest it, has to be gauge in the context, as BTC discusses, that if it had been the Secretary of State's position on the appeal that the appellant should qualify for a lower percentage assessment of disablement, he would have needed to set out his reasons why that was so on the evidence and in advance of any hearing in his appeal response. Therefore, contrary to the above, even if the FTT by its reasoning had (or has) shown it properly thought through its approach to the appeal under section 5B(a) of the Pensions Appeal Tribunals Act 1943 and acted lawfully under that subsection, it erred in law in my judgement in failing to consider the need to give the appellant adequate time to consider the implications of continuing with his appeal. Following BTC, in my judgement, even if the FTT had made clear (which its reasoning does not) what either did or may give rise to a lower percentage assessment potentially arising on the evidence, a short adjournment on the day of the hearing was not sufficient. Or at least the FTT had to explain why a short adjournment was adequate and placed the appellant in a position sufficiently analogous to the position he would have been had the Secretary of State's decision reduced the interim assessment to 40%.
12. I have referred a number of times above to the 'outset of the hearing. That is not simply an observation about what the FTT did. A mere description at the outset of a hearing of a First-tier Tribunal's powers (e.g., that it can make a lesser award than that under appeal) may not in and of itself engage the duties and powers (per paragraph 94 of R(IB)2/04) under section 5B(a) of the Pensions Appeal Tribunals Act 1943 and may be quite anodyne. However, if the oral evidence then heard by a First-tier Tribunal brought into question whether a lower award might result on the appeal, the powers and duties in section 5B(a) would arise on the appeal at that stage in the appeal proceedings and require the First-tier Tribunal to consciously address the exercise of the power in section 5B(a). In this appeal, however, what occurred at the outset of the hearing was not the mere description of the FTT's possible powers and duties but a more focussed concern based on the written evidence which at least suggested that a lower award might result on the appeal. That required the FTT to engage properly with its duties and powers under section 5B(a) of the Pensions Appeal Tribunals Act 1943, and its failure to do so was a material error of law.
13. The Secretary of State opposes the appeal and argues, first, that the FTT's "task...was to determine the appropriate assessment for the appellant's disablement at the date of the Secretary of State's decision". This submission ignores the effect of section 5B(a) of the Pensions Appeal Tribunals Act 1943. By analogy with paragraph [16] of DT v SSWP (PIP) [2020] UKUT 156 (AAC), the law did not require the FTT to decide all and any issues that may arise on the evidence. Under section 5B(a) the FTT was only required to decide issues that were raised by the appeal and it had a discretionary power to decide other issues.
14. The Secretary of State further argues:
"8. Furthermore, the terms of reference state (emphasis added):
"The appeal lies against the Secretary of State's decision to award an interim assessment of 60% for the conditions Shrapnel Wounds Abdomen, Right Arm, Left Leg & Right Thigh (1982) and Post Traumatic Stress Disorder accepted as being caused by service.
The Tribunal is asked to decide if this assessment is correct and if not to substitute its own assessment for the period under appeal."
9. For these reasons, the Secretary of State does not consider that potential reduction of the assessment was a new issue that needed to be raised because it was already encompassed within the general powers of the Tribunal and the terms of reference for the appeal.
15. I am not persuaded by this submission either. As I explained in DT v SSWP (PIP) [2020] UKUT 156 (AAC), describing what a First-tier Tribunal's powers are is different from the First-tier Tribunal actually exercising those powers, which must be done by all the members of the FTT convened to hear and decide the appeal.
SD/69/2021 decision
16. This appeal concerned the Secretary of State's decision to cancel the appellant's award of a War Pensions Mobility Supplement ("WPMS"). The FTT (and the Secretary of State in his written appeal response to the FTT) did not address the exact basis under Article 44 of the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 2006 ("the SPO") for removing the award.
17. In my judgement, the FTT failed properly and fully to address the nature of the statutory questions which were before it and which it had to determine under Article 44 of the SPO.
18. As the Secretary of State's decision was one which was "to the detriment of a member of the armed forces" the review powers in Article 44(1)(b) and 44(6), which are the only parts of Article 44 to which the FTT referred, are expressly subject to Article 44(4) and (5). Each of the provisions in Article 44(4) and (5) set out two substantive grounds for reviewing an award to the detriment of a member of the armed services. The first is that the awarding decision was made in consequence of ignorance of, or a mistake as to, a material fact, or of a mistake as to the law. The second is that there had been a relevant change of circumstances since the award was made. The FTT failed to identify which of these review powers was being used or why it was satisfied. Moreover, on the basis of what the FTT said in paragraph 5 of its reasons, it failed in my judgement to direct itself properly that the issue before it was whether one of the conditions in either Article 44(4) or 44(5) was satisfied. Those failures amounted to an error of law: see DS v SSWP [2016] UKUT 538 (AAC); [2017] AACR 19. What the FTT said in paragraph 5 (and paragraph 37) of its reasons was:
"5....the issue for the Tribunal was whether as at the date of the decision, namely 18 August 2020, the appellant satisfied the criteria in article 20(1)(b) of the [SPO].
37. Given the appellant's evidence, including the appellant's own description of his walking ability that was contained in the bundle, the Tribunal did not consider that his accepted service disablements rendered him "unable to walk", or restricted his leg movements to such an extent that his ability to walk (with any such prothesis or artificial aid) without severe discomfort is of little or no practical use to him", or that his ability to walk to walk was "of little or no practical use to him" due to physical pain or breathlessness (or that there was a danger to his life or a likely cause of serious deterioration in his health). In those circumstances, the Tribunal unanimously decided that the article 20 criteria had not been satisfied and therefore the Tribunal was bound to dismiss the appeal."
19. Describing the relevant issue is this way would have been correct if the appeal before the FTT was from the initial decision made by the Secretary of State that the appellant was not entitled to an award of the WPMS. But that was not the decision under appeal. The appellant already had an award of the WPMS and the decision under appeal was one seeking, on review, to remove that award. In my judgment it was incumbent on the FTT to identify the ground for removal and then satisfy itself that that ground was made out.
20. The Secretary of State opposes the appeal and argues that "it can easily be assumed from the context that the relevant criteria is found in Article 44(4)(c) and therefore it was not necessary for the Tribunal to make explicit reference to Article 44(4)". Article 44(4)(c) of the SPO provides that the awarding decision may be revised to the detriment of the armed services member (only) where "there has been a change in the degree of disablement due to service since the assessment was made".
21. Part of that context, as the Secretary of State rightly points out, is that the Secretary of State in terms of reference for this appeal to the FTT stated:
"The appeal lies against the Secretary of State's decision of 18/8/20 that War Pensioners Mobility Supplement (WPMS) is no longer merited" (emphasis added)
22. Although the Secretary of State does not take this point, it can also be said that the FTT in paragraph 5 of its reasons, having set out that the specified decision under appeal was one to cancel an award of the WPMS, identified that the issue for it was "whether as at the date of the decision, namely 18 August 2020, the appellant satisfied the criteria in article 20(1)(b) of [the SPO]". Article 20 of the SPO contains the entitlement conditions for an award of the WPMS.
23. I am not persuaded by these arguments. The reasons why I consider the FTT did nevertheless err in law are threefold and are all related. They are as follows.
24. First, this should not be a matter of assumption. It was for the FTT to set out the correct statutory basis adequately and clearly for its decision. Article 44(1)(b) is expressly made subject to Article 44(4) and it is only the later which deals with what occurs "following a review". As I have set out above, the issue before the FTT was whether the statutory condition for removing or cancelling the WPMS award were made out. Moreover, a key aspect of the statutory provisions in Article 44(4) (and 44(5)) is that the award may be revised to the detriment of the member of the armed services only if the Secretary of state (or on appeal the First-tier Tribunal) is satisfied that one of the specified grounds for revision is made out. This is an important and deliberate statutory protection for armed service members against having awards removed. It is not available simply where the decision maker (be that the Secretary of State or FTT) considers the award is no longer merited. It was an issue which therefore needed to be addressed, but was not.
25. Second, section 44(4) does not itself provide that an award may be "cancelled". It provides a number of grounds on which the decision being reviewed may be revised to the detriment of the member of the armed forces, including (per article 44(4)(a)) where the decision was wrongly made at the time it was made. It is Article 44(6) of the SPO which speak about, inter alia, 'cancelling' the "decision, assessment or award", though it also provides relevantly for the decision, assessment or award to be varied. However, the word "cancel" is ambiguous and could cover either removing the award from when it was first made or stopping it from the date of the review decision. Indeed, it seems in my judgement that 'cancel' is the only Article 44(6) outcome which can cover removing the award from when it was first made. To "maintain", "continue" or "vary" the "decision, assessment or award" is not to remove the award or the assessment from the outset. In circumstances where to 'cancel' the assessment or award can cover either removing the award from when it was first made or removing it from the date of the review decision, it was incumbent on the FTT to show it had applied the correct statutory test.
26. I recognise that the FTT did identify in paragraph 5 of its reasons that it was only concerned on this particular appeal before it with a decision removing the WPMS award from date of the 18 August 2020. There is therefore force in the Secretary of State's argument that that decision can only have been made under Article 44(4)(c), as it was not a decision removing the WPMS award from any earlier date or the date it was first awarded (albeit the terms of Article 44 may not compel this result). However, even if this is accepted, this still left the key statutory question before the FTT not whether Article 20 of the SPO was satisfied, as the FTT directed itself, but whether there had been a change in the appellant's degree of disablement due to service since the last assessment had been made. The FTT's self-direction in paragraph 5 of its reasons did not contain this crucial statutory test.
27. Third, and particularly related to the second point I have made immediately above, as the appellant sets out, an argument was made to the FTT along the lines that the appellant's degree of disablement due to service had not changed (at least for the better) since he was initially awarded the WPMS. That in my judgement required the FTT to show it had addressed its mind to that issue and the Article 44(4)(c) question. The effect of the appellant's argument was that if he had not changed and he did not satisfy the conditions of entitlement to the WPMS on 18 August 2020, that may have given rise to an issue on the appeal as to whether the award had been correctly made in the first place. That argument showed even more so why the FTT had to answer what it was that had changed by 18 August 2020, and it failed to do so in paragraph 37 of its reasons or more generally.
Conclusion
28. Given the two appeals succeed on the grounds set out above, I do not need to address any other grounds of appeal.
29. For the reasons given above, both appeals succeed. The Upper Tribunal is not able to re-decide the first instance appeals. The two appeals will therefore have to be re-decided afresh by a completely differently constituted First-tier Tribunal (War Pensions and Armed Forces Compensation Chamber), at a hearing.
30. The appellant's success on these appeals to the Upper Tribunal on error of law says nothing one way or the other about whether his appeals will succeed on the facts before the new First-tier Tribunal, as that will be for that tribunal to assess in accordance with the law and once it has properly considered all the relevant evidence.
Approved for issue by Stewart Wright
Judge of the Upper Tribunal
On 7th August 2024
DN v Secretary of State for Defence: [2024] UKUT 238 (AAC)
1 IN THE UPPER TRIBUNAL UT ref: UA-2023-000969-AFCS ADMINISTRATIVE APPEALS CHAMBER [2024] UKUT 238 (AAC) On appeal from First-tier Tribunal (War Pensions and Armed Forces Compensation Chamber) Between: DN Appellant - v – The Secretary of State for Defence Respondent Before: Upper Tribunal Judge Wright Decision date: 31 July 2024 Decided after and oral hearing on 6 March 2024 Representation: Nathan Searle, solicitor advocate, for the appellant David Mankell of counsel for the respondent DECISION The decision of the Upper Tribunal is to dismiss the appeal. REASONS FOR DECISION Introduction 1. This is an appeal against the decision of the First-tier Tribunal of 14 February 2023 (“the FTT”). By that decision, the FTT dismissed the appellant’s appeal from the decision of the Secretary of State for Defence dated 14 October 2021. That decision was to the effect that the appellant’s hearing loss (the accepted condition) fell below tariff level, and so no award could be made under the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011 (“the AFCS”). 2. The essence of the appellant’s challenge to the FTT’s decision is an argument that the FTT, in deciding the correct tariff level for his hearing loss, was bound by the findings of fact made by the previous First-tier Tribunal which had decided that the appellant’s hearing loss was caused by service. 3. Although estoppel arguments had been relied on at one stage by the appellant, no such arguments were made before me. Instead, the appellant’s primary ground of DN -v- SSD [2024] UKUT 238 (AAC) Case no: UA-2023-000969-AFCS 2 appeal focuses on what he argues are the applicable principles arising from case law such as paragraphs [32]-[39] of SSHD v BK (Afghanistan) [2019] EWCA Civ 1358. The legislative scheme 4. Section 5A of the Pensions Appeal Tribunals Act 1943 deals with appeals in AFCS cases. It provides as follows: “5A:-(1) Where, in the case of a claim to which this section applies, the Minister makes a specified decision— (a) he shall notify the claimant of the decision, specifying the ground on which it is made, and (b) thereupon an appeal against the decision shall lie to the appropriate tribunal on the issue whether the decision was rightly made on that ground. (1A) This section applies to— (a) any such claim as is referred to in section 1, 2 or 3 of this Act; (b) a claim under a scheme mentioned in section 1(2) of the Armed Forces (Pensions and Compensation) Act 2004 (compensation schemes for armed and reserve forces). (2) For the purposes of subsection (1), a “specified decision” is a decision (other than a decision which is capable of being the subject of an appeal under any other provision of this Act) which is of a kind specified by the Minister in regulations.” 5. Regulation 3 of the Pensions Appeals Tribunals Act 1943 (Armed Forces and Reserve Forces Compensation Scheme) (Rights of Appeal) Regulation 2011s (“the Specified Decisions Regs”) is made pursuant to section 5A(2) of the Pensions Appeal Tribunals Act 1943. That regulation provides that a decision is a specified decision (and therefore is appealable), as follows: “3(1)….the following decisions are specified for the purposes of section 5A(2) of the Pensions Appeal Tribunals Act 1943, that is a decision which— (a) determines whether a benefit is payable; (b) determines the amount payable under an award of benefit; and (c) is issued under article 26(6) (refusal to make a temporary award permanent etc.) or 26(8) (addition of new descriptor) of the 2011 Order, relating to the making of a permanent award. 6. Section 5B of Pensions Appeal Tribunals Act 1943 further provides that: “5B:- 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. DN -v- SSD [2024] UKUT 238 (AAC) Case no: UA-2023-000969-AFCS 3 7. Section 1 of the Armed Forces (Pensions and Compensation) Act 2004 empowers the making of the AFCS. It provides, relevantly, as follows: “Pension and compensation schemes: armed and reserve forces 1:- (1) The Secretary of State may by order establish schemes which, in respect of a person’s service in the armed forces, provide— (a) for benefits, in the form of pensions or otherwise, to be payable to or in respect of him on termination of service or on death or retirement, or (b) for payments to be made towards the provision of such benefits. Such a scheme is referred to in this Act as an armed forces pension scheme. (2) The Secretary of State may by order establish schemes which provide for benefits to be payable to or in respect of a person by reason of his illness or injury (whether physical or mental), or his death, which is attributable (wholly or partly) to his service in the armed forces or the reserve forces. Such a scheme is referred to in this Act as an armed and reserve forces compensation scheme.” 8. Under article 8 of the AFCS it is provided that: "Injury caused by service 8.—(1) ….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. 9. Article 9 of the AFCS deals with the different situation of an injury not caused by service but worsened by service. It sets out, insofar as is material: “Injury made worse by service 9.—(1) …..benefit is payable to or in respect of a former member of the forces by reason of an injury made worse by service if the injury…. (c) arose during service but was not caused by service, And…service on or after 6th April 2005 was the predominant cause of the worsening of the injury. (2) Benefit is only payable under paragraph (1) if the injury has been worsened by service and remains worsened by service on— (i) the day on which the member's service ends; or (ii) the date of claim if that date is later. DN -v- SSD [2024] UKUT 238 (AAC) Case no: UA-2023-000969-AFCS 4 10. Article 15 of the AFCS is concerned with the benefits payable for an injury if, for example, an injury has been caused by service on or after 6 April 2005, and provides: “Description of benefits - injury 15.—(1) Benefits payable for injury are— (a) a lump sum; (b) a supplementary award; (c) a guaranteed income payment payable until death; (ca) armed forces independence payment; (d) a fast payment; and (e) medical expenses. (2) Schedule 3 has effect for the purpose of determining— (a) the descriptor; (b) the tariff level; (c) the amount of a lump sum; (d) the conditions relating to payment of a supplementary award; and (e) the amount of a supplementary award.” 11. Part 1 of Schedule 3 to the AFCS sets out what it describes as DESCRIPTORS, TARIFF LEVELS AND AMOUNTS – “THE TARIFF”. There are then listed under Part 1 various Tables dealing with different types of injury or illness. For example Table 1 is about “Burns”, Table 2 concerns “Injury, Wounds and Scarring”, Table 3 is about “Mental Disorders” and Table 7 deals with the “Senses”. Each Table is structured so that it covers “Item”, “Column Level” and “Description of injury and its effects (“descriptor”)”. What falls below in each Table are injuries graded in terms of their seriousness, from most serious down to least serious. So, under “Table 1 – Burns” the most serious injury is one which has left the person with “Burns, with partial, deep or full thickness burns affecting 70% or more of whole body surface area”, whereas the least serious type of ‘Burn’ is “Burns, with superficial burns affecting 1 to 4.4% of whole body surface area”. 12. In addition, certain of the descriptors in Schedule 3 deal with the effects of the injury. Thus under ‘Table 2 – Injury, Wounds and Scarring’ the injury may be a “Complex injury covering all or most of the area from thigh to ankle or shoulder to wrist, causing permanent significant functional limitation or restriction”. And under “Table 3 – Mental Disorders” includes a “Mental Disorder, causing functional limitation or restriction, which has continued, or is expected to continue for 5 years”. For completeness, under “Table 7 – Senses”, bilateral deafness and bilateral hearing loss DN -v- SSD [2024] UKUT 238 (AAC) Case no: UA-2023-000969-AFCS 5 extends from “Total deafness in both ears” to “Bilateral permanent hearing loss of 50- 75dB averaged over 1, 2 and 3kHz”. 13. It is important to note that on the face of it the AFCS does not set down a definitive, single stage at which the extent to which an injury has been caused (or made worse) by service is to be determined. No bright lines are drawn in the AFCS, demarcating where and when that issue (if it arises) must be decided. Putting this point another way, there is no express preclusion against determining that issue at the ‘regulation 3(1)(b) of the Specified Decisions Regs stage’ of deciding the correct amount of the award, if it has not already and clearly been decided. 14. In terms of claiming and adjudication under the AFCS, article 43 makes it a condition of entitlement that a claim is made for most benefits. Adjudication is dealt with in Part 7 of the AFCS. Under article 51 of the AFCS: “Decisions 51.—(1) The Secretary of State is to determine any claim for benefit and any question arising out of the claim. (2) The Secretary of State is to give reasons for the decision. (3) The decision and the reasons for the decision must— (a) be in writing; (b) be given or sent to the claimant; and (c) inform the claimant of any right that the claimant may have— (i) to a reconsideration of the decision under article 53; and (ii) to appeal that decision to the appropriate tribunal under section 5A(1) of the Pensions Appeal Tribunals Act 1943.” 15. Article 54 deals with finality in relation to the decision-making of the Secretary of State, and provides: “Finality of decisions 54.—(1) Where the Secretary of State has made a final decision awarding benefit, there is to be no review of that decision except in the circumstances specified in articles 55, 56, 57, 58 and 59. (2) Where the Secretary of State has made a final decision which makes no award of benefit, there is to be no review of that decision except in the circumstances specified in article 59. (3) In this article, and subject to paragraph (4), a final decision is— (a) a decision under article 51; (b) a decision making a final award under article 52; (c) a decision revised by the Secretary of State under article 55, 56, 57, 58 or 59; (d) a decision made under article 55, 56, 57 or 59 which maintains the decision under review; (e) a decision revised by the Secretary of State following a reconsideration under article 53; or DN -v- SSD [2024] UKUT 238 (AAC) Case no: UA-2023-000969-AFCS 6 (f) a new decision which maintains the original decision following a reconsideration under article 53. (4) The decisions referred to in sub-paragraphs (a) to (d) are final decisions where there has been no application for reconsideration under article 53, or the time for such an application has expired. 16. Therefore, when the Secretary of State decided (see further below) that the appellant’s hearing loss was not caused by service, that was a final decision on that issue, subject to that decision being appealed. However, nothing in Part 7 of the AFCS mandated any necessary content or scope to that decision under article 8, such that it was required to determine the extent to which the injury had been caused by service. Moreover, Part 7 of the AFCS says, and can say, nothing about finality of decisions made by the First-tier Tribunal on appeal. Relevant factual background 17. The appellant served in the Army from March 2011 to November 2018. Whilst still in the Army, on 10 April 2018 he submitted a claim under the AFCS. It was treated as being a claim for bilateral noise induced sensorineural hearing loss (”BNISH” or “hearing loss”). Understandably, this is not what the appellant said in his claim form. What he claimed for, under “Condition/Injury/Illness you are claiming”, was “Loss of hearing on both left and right ears”. The appellant went on in the same claim form to explain why he thought his loss of hearing had been caused by his service in the Army. That claim was rejected by the Secretary of State on 19 February 2019. 18. The decision of 19 February 2019 accurately set out the claimed injury as “Loss of hearing on both left and right ears”. Under “Incident/Exposure/Behaviour” the decision form set out the appellant’s case that the incident/exposure was in 2016. The decision form then narrated what the appellant had said on his claim form about losing his hearing gradually during his service in the Army, particularly after an exercise in Canada. The appellant had described in his claim form how he had felt some hearing loss as a drummer in his company, but the hearing loss had got worse after the Canada exercise. That exercise, as described by the appellant in his claim form, involved him driving a Warrior fighting vehicle and there had been lots of shooting and other vehicle noise exposure. 19. The reasons for the decision given in the 19 February 2019 decision form were that there was no evidence in the appellant’s electronic medical records of unprotected noise exposure due to service, and the Secretary of State (therefore) did not accept, per article 8(1) of the AFCS, that the appellant’s hearing loss was wholly or partly caused by service. The Secretary of State decision maker expressly relied on “the reason provided by the Medical Advisor on page 3&4 [of the decision form]”. The request for medical advice referred the medical advisor to the “potential process causes” (e.g., the appellant driving the Warrior vehicle), said that the hearing tests had been inconsistent, and asked for advice as to whether “service is the predominant cause of hearing loss”. The medical advice considered eight medical results from between 2016 and 2018 concerning the appellant’s hearing. It concluded that: “The results of the objective and subjective tests of hearing are inconsistent and conflicting. There is some evidence to support a diagnosis of bilateral sensorineural hearing loss. However, there is no evidence of unprotected noise exposure due to service. The Control of Noise at Work Regulations 2005….came into force for all industry sectors in Great Britain on 6 April DN -v- SSD [2024] UKUT 238 (AAC) Case no: UA-2023-000969-AFCS 7 2006 and therefore [the appellant] would be sufficiently protected against any excessive noise in the workplace. On the balance of probabilities, the hearing loss is not wholly or partly caused by service and can be rejected under AFCS.” 20. Pausing at this point, it seems clear, in my judgement, that this decision was rejecting the claim on the ground that the claimed injury had not been caused by service. It was not a decision that the appellant did not have an injury. It was a ‘no service causation’ decision. Whether that lack of causation was in respect of the whole or any of the appellant’s hearing loss as it presented at the time of the 2018 claim was irrelevant to the decision. The decision was not, as it could have been, that only part of the hearing loss was caused by service (because some of the hearing loss presenting in 2018 had another, non-service, cause.) In the language of section 5A(1)(a) of the Pensions Appeal Tribunals Act 1943 and regulation 3(1)(a) of the Specified Decisions Regs, (the lack of service) causation was the ground on which the claim was rejected. 21. As the appellant had left the Army by the time of the decision, for completeness the decision also considered whether article 9(1)(c) of the AFCS was met, but this was also rejected. It did so because “[f]ollowing the audiogram in March 2016, there is no medical evidence of noise exposure due to service. [The appellant was] downgraded to protect you from any noise exposure. [S]ervice is not the predominant cause of worsening of the hearing loss.” The medical advice also addressed worsening and article 9(1)(c), though that advice was not expressly incorporated into the Secretary of State’s decision or the reasons for it (albeit the advice is in almost identical terms to the decision and the reason for it). The relevant part of the medical advice on ‘worsening’ reads: “Following the audiogram in March 2016, there is no medical evidence of noise exposure due to service. [The appellant] was downgraded to protect him from any noise exposure. [T]herefore service is not the predominant cause of worsening of the hearing loss. Worsening can be rejected under Article 9[(1)](c).” 22. This decision was challenged by the appellant. In this (first) appeal the appellant argued: “[t[he hearing test are inconsistent and hearing loss is [definitely] severe and caused by noise from service. I had low concentration at times and confusion with the noises to respond to I had to arrange a hearing test in Germany on my own and there it was confirmed that there is a hearing problem”. On its face, this appeal was arguing that the hearing loss was caused by a service rather than that it was made worse by service. 23. The Secretary of State reconsidered the decision post this appeal but maintained it. In that reconsideration it was said that the Secretary of State remained content on the balance of probabilities that the appellant’s hearing loss was not wholly or partly caused by service. This was because: “Whilst it is agreed that the objective and subjective hearing tests are inconsistent and conflicting with some evidence to support a diagnosis of DN -v- SSD [2024] UKUT 238 (AAC) Case no: UA-2023-000969-AFCS 8 bilateral sensorineural hearing loss, there remains no evidence within your medical records of unprotected noise exposure during your Army service.” 24. In the appeal response to what I will term the (first) First-tier Tribunal, the Secretary of State referred to the decision under appeal as being a specified decision that “the condition hearing loss is not due to, or made worse by, service” and asked the tribunal to: “decide if the claimed condition Hearing loss is either predominantly caused by, or predominantly made worse by, service in accordance with the rules of the [AFCS].” I would note, again, that no part of this ‘section 5A(1)(b) of the Pensions Appeal Tribunals Act 1943’ question to the (first) First-tier Tribunal was about the extent of the appellant’s hearing loss. Nor was the question being asked whether the appellant had any hearing loss. The Secretary of State was only asking the (first) First-tier Tribunal to decide whether the claimed condition was caused (or made worse) by service. 25. On 15 June 2021, the (first) First-tier Tribunal allowed the appeal. Its decision reads: “The unanimous decision of the Tribunal was to allow the appeal against the decision of the respondent that his hearing loss was not predominantly caused by service. The tribunal found that the appellant suffered from bilateral sensorineural hearing loss and that it was predominantly caused by service.” In making the first finding – that the appellant suffered from bilateral sensorineural hearing loss – the (first) First-tier Tribunal in my judgement answered a question it had not been asked. 26. In its reasons for the decision this (first) First-tier Tribunal took the view that the claim had been refused on the basis that “the appellant’s hearing tests were inconclusive as to whether he had suffered hearing loss and that, if he had done so, he had not shown that any such hearing loss was caused by service”. The (first) Firsttier Tribunal then proceeded to address both issues. It found on the balance of probabilities that the appellant suffered from bilateral sensorineural hearing loss. In so doing, the (first) First-tier Tribunal founded particularly on the Institute of Naval Medicine’s report of 16 October 2018, which it found was the most reliable and objective report. It was also the most recent. Given the main ground of appeal concerns what the (first) First-tier Tribunal decided or found as a fact about the appellant’s hearing loss, I set out the most relevant parts of its reasoning around the Institute of Naval Medicine report. “3. The claim was refused on 19 February 2019…on the basis that the appellant’s hearing tests were inconclusive as to whether he had suffered hearing loss and that, if he had done so, he had not shown any such hearing loss was caused by service….. 14. On 16 October 2018, tests were conducted by the Institute of Naval Medicine (INM) in Gosport. These test used Auditory Steady State Response (ASSR), which is a way to assess hearing loss by objectively evaluating the electrophysiological thresholds in a subject. The INM test result…and the report based thereon indicated that the appellant had DN -v- SSD [2024] UKUT 238 (AAC) Case no: UA-2023-000969-AFCS 9 bilateral hearing loss of 65dB across the four frequencies measured, with the exception of at 500Hz in his right ear, which was normal. 15. As noted above the tribunal was presented with conflicting audiometric evidence, which included conflicting results between objective tests in Swindon, Paderborn and by the INM in Gosport. Of this evidence, however, the tribunal found the INM report, which was also the most recent, was the most reliable. The tribunal found that the Defence Audiology Service at INM is a centre of excellence and used a modern and reliable method to assess the appellant’s hearing loss, which, whilst yielding results which were inconsistent with those from Swindon, were supported by those from Paderborn. 16. The findings of the INM were also supported by the appellant’s subjective account of hearing loss and the fact that he continued to wear, and apparently benefit from, the hearing aids prescribed in Paderborn. 17. The tribunal therefore found that, on the balance of probabilities, the appellant suffered from bilateral sensorineural hearing loss…. 19. The tribunal could find no evidence of noise exposure outside service and found that, in the absence of another cause, the most likely cause of the appellant’s hearing loss was noise exposure in service. 20. Accordingly, the tribunal found that the appellant’s hearing loss was predominantly caused by service and the appeal was allowed to this extent.” 27. This (first) First-tier Tribunal’s decision was not challenged by either party. 28. The appellant having succeeded in establishing under article 8 of the AFCS that he had an injury (the hearing loss) which had been caused by service, the Secretary of State then had to decide under article 15 of the AFCS the benefit payable for that injury (that is, the hearing loss). Importantly, it is not disputed that that (second) decision remained to be made. In other words, the appellant accepts that the Secretary of State (and, if that second decision was disputed, the First-tier Tribunal on appeal) still as a matter of law had to decide the extent of the appellant’s hearing loss. 29. In a decision dated 14 October 2021 the Secretary of State decided that the appellant’s injury of hearing loss did not merit any award under the tariff scheme in the AFCS. The decision of 14 October 2021 stated that there was no evidence of “blast injury to ears of acute acoustic trauma due to impulse noise”, and accordingly in order for an award to be made there had to be evidence that the appellant had bilateral permanent hearing loss of 50-75dB averaged over 1, 2 and 3kHz (per Table 7 in Schedule 3 to the AFCS at Item 13, level 8). The 14 October 2021 decision said that on receipt of the First-tier Tribunal’s decision the appellant’s case had been referred to Veterans UK Medical Services. Those Services had observed that an audiogram performed in an audiology clinic on 15 March 2016 had (a) shown (only) high frequency hearing loss, with the appellant being advised to wear increased hearing protection, and (b) confirmed an average hearing loss over 1, 2 and 3kHz of (only) 25dB on the left and 26dB on the right. In other words, the hearing loss was not as severe as 50- 75dB, and therefore no tariff award could be made. 30. In seeking medical advice before making the above decision, the Secretary of State’s decision maker said that it seemed it had been accepted that the appellant had been a drummer in service, had driven a Warrior vehicle and had been on firing ranges, DN -v- SSD [2024] UKUT 238 (AAC) Case no: UA-2023-000969-AFCS 10 but at the time he would have been provided with hearing protection. However, the (first) First-tier Tribunal had ruled that the most likely cause of the appellant’s hearing loss was noise exposure in service. The decision maker drew the Medical Advisor’s attention to the Institute of Naval Medicine’s report of 16 October 2018. 31. The Medical Advisor’s advice referred to an audiogram of 15 September 2016 which had shown severely abnormal hearing thresholds across all frequencies despite no further exposure noise. An ENT assessment in Germany in November 2016 had produced broadly similar results to those in March 2016. The medical advice continued by saying that the accepted noise exposure due to service had been prior to the audiogram in March 2016 and there was no evidence of noise exposure after March 2016. It further stated that it was medically accepted that once an individual was removed from the source (of the noise), no further damage could arise from it. Any further hearing loss the appellant suffered after March 2016 could not, therefore, be attributable to service. (This was seemingly the basis for distinguishing the Institute of Naval Medicine’s report of 16 October 2018.) And the audiogram of 15 March 2016 showed only hearing loss over 1, 2 and 3kHz of 25dB on the left and 26dB on the right. 32. It was this decision that the appellant appealed to the FTT and which the FTT upheld. Adopting the wording used by the FTT in its decision notice, the question before the FTT under section 5A(1)(b) of the Pensions Appeal Tribunals Act 1943 and regulation 3(1)(b) of the Specified Decisions Regs was where to place the accepted condition (i.e., the hearing loss) in the tariff in Part 1 of Schedule 3 to the AFCS. 33. The FTT’s decision was to: “dismiss the appellant’s appeal against a decision by the respondent to place his accepted condition: Bilateral noise induced sensorineural hearing loss: at or below tariff level.” 34. In its reasons for decision the FTT recorded as the “Background of the appeal” that the appellant’s claim had initially been rejected as it was not accepted that the appellant’s hearing loss was caused by noise exposure in service, but on appeal the (first) First-tier Tribunal had allowed the appeal and found the appellant suffered from BNISHL which was predominantly caused by service. As for the decision under appeal to the FTT, the FTT described it as a decision that the appellant had not reached the required level of hearing loss for an award under the AFCS, and therefore the accepted condition of BNISHL fell below tariff level. The FTT said that the respondent had considered that the accepted noise exposure was prior to 2016 and that the most appropriate hearing test was an audiogram dated 2016, after which the appellant had been advised to wear increased hearing protection. 35. The appellant was represented by Mr Searle before the FTT. His argument did not rely on an analysis of the many and differing hearing test results in the FTT’s bundle. The appellant argued, instead, that the FTT was bound by the findings of the (first) First-tier Tribunal and, in particular, was bound by the finding that the Institute of Naval Medicine’s report of 16 October 2018 was the most reliable and most accurate record of the appellant’s hearing loss. At that stage, the appellant’s argument was founded on (issue or cause of action) estoppel to the effect that where an issue had been determined between the parties in earlier proceedings, it was binding on them in DN -v- SSD [2024] UKUT 238 (AAC) Case no: UA-2023-000969-AFCS 11 subsequent proceedings: per Virgin Atlantic Airways Ltd v Zodiac Seats Ltd [2013] UKSC 46; [2014] 1 A.C. 160. 36. In rejecting these arguments, the FTT stated that it was not satisfied that the (first) First-tier Tribunal had addressed its mind to the matter of quantum or tariff selection when it gave its reasons for its entitlement decision. Moreover, the FTT was satisfied that the (first) First-tier Tribunal had no intention of binding the FTT in deciding the correct tariff selection. In the FTT’s view, the main finding of the (first) First-tier Tribunal was that the appellant had suffered hearing loss due to service, rather than the quantum of that loss. Looking afresh at the hearing tests before it, the FTT said that it had before it a very clear trail of evidence from cortical evoked response audiometry (CERA) tests. These in the view of the FTT were more reliable than the audiogram tests. The audiogram tests had given inconsistent and unreliable results. Given the very clear thread of evidence of CERA tests between February 2017 and November 2018 showing normal hearing, the FTT said that it could not consider itself bound by the (first) First-tier Tribunal, which the FTT said was dealing with a different appeal. The FTT concluded its reasons for dismissing the appeal as follows: “The Tribunal is satisfied that, at most, the appellant’s hearing loss due to service can be shown to be as recorded in the March 2016 audiogram, and there is a strong argument that he has no reliably verified hearing loss. The [Institute of Naval Medicine] was not asked to comment on the flat line hearing loss across all frequencies, which is not consistent with noise induced hearing loss. The Tribunal finds that the decision that the hearing loss is below tariff is correct.” Grounds of appeal 37. Pursuant to permission granted by the First-tier Tribunal, the appellant appeals to the Upper Tribunal on three main grounds. 38. Ground 1 is that the FTT erred in law by allowing the respondent to relitigate factual matters finally decided by the (first) First-tier Tribunal. In essence, this contains the key argument that the Secretary of State on the tariff decision, and on appeal the FTT, was bound by the issues of fact finally determined by the (first) First-tier Tribunal which were common to both the entitlement decision and the tariff selection decision. 39. As I have indicated earlier, this main ground of the appeal is not based on any estoppel argument but the argument that the FTT erred in not following the approach set down in paragraphs [32]-[39] of SSHD v BK (Afghanistan) [2019] EWCA Civ 1358; [2019] 4 WLR 111, and factor 6 within para. [32] of BK (Afghanistan) in particular, which says: “(6) If before the second adjudicator the appellant relies on facts that are not materially different from those put to the first adjudicator, the second adjudicator should regard the issues as settled by the first adjudicator's determination and make his findings in line with that determination rather than allowing the matter to be re-litigated.” 40. Reliance was also placed on TK (Consideration of Prior Determination, Directions) Georgia [2004] UKIAT 149 under the first ground of appeal, and the statement in paragraph [19] of TK that : ….Unless some very good reason was advanced to the contrary, for example, compelling new evidence to show that X's evidence (which DN -v- SSD [2024] UKUT 238 (AAC) Case no: UA-2023-000969-AFCS 12 originally had been disbelieved) was mistakenly appraised by the original Adjudicator, a future Adjudicator is, in the Tribunal's view, not merely entitled to read the Determination in X's case but also to treat it as determinative as to X's account.” 41. The first ground of appeal argues that as a result of this case law, the FTT erred by permitting the Secretary of State to re-litigate the same arguments he had made before the (first) First-tier Tribunal, namely the Secretary of State’s argument that the March 2016 audiogram was the most reliable measure of the appellant’s hearing loss and that it should be preferred to the Institute of Naval Medicine’s report of 16 October 2018 because any hearing loss after March 2016 was not attributable to service. In the hearing before me the point was put slightly differently. It was argued that the FTT had erred in law by allowing the issue of causation (that is, whether all of the appellant’s hearing loss presenting in 2018 was caused by service) to be relitigated 42. Ground 2 is that the FTT erred in law by failing to give the parties a reasonable opportunity to address relevant matters. It is argued under this ground that the parties ought to have been afforded the opportunity to address the FTT’s view that the flat line hearing loss in the Institute of Naval Medicine’s report was not consistent with typical noise induced hearing loss. 43. Ground 3 is that the FTT erred in law by reaching a decision that no reasonable First-tier Tribunal could have reached. It is said under this ground that no reasonable First-tier Tribunal could have concluded that the Institute of Naval Medicine’s report was not consistent with noise induced hearing loss given (it is argued) “there was a total absence of medical opinion before the [FTT] to support such a finding”. The Secretary of State’s submissions on the appeal 44. In opposing this appeal to the Upper Tribunal the Secretary of State for Defence argues as follows. 45. First, the sole issue for the (first) First-tier Tribunal was whether the appellant’s injury was caused by service. That tribunal was not deciding the extent of any injury caused by service. It had qualified its finding that the appellant’s hearing loss was predominantly caused by service, and the appeal before it was allowed, to this extent. Nor had the (first) First-tier Tribunal made any finding as to the extent of the appellant’s hearing loss. The extent of the appellant’s hearing loss remained to be decided, and that is what had occurred, leading to the FTTs decision. 46. As for the appellant’s first ground of appeal, the Secretary of State argued that BK (Afghanistan) is only authority for the proposition that the earlier finding or decision is a starting point, rather than being determinative. This was plain from paragraph [43] of BK (Afghanistan) where the Court of Appeal said: “… That …raised the question of the appropriate response to [the Adjudicator’s] earlier findings of fact. [Counsel for the SSHD] …accepted that as a matter of practice, the tribunal must address its mind to the reasons put forward by the party which is seeking to depart from the previous findings as to why that finding is unreliable so that it should in effect be carried forward into the determination of the appeal now before it. That must be right given what the UT said in the Mubu case about the earlier decision being a starting point, rather than determinative of the issue. DN -v- SSD [2024] UKUT 238 (AAC) Case no: UA-2023-000969-AFCS 13 47. Moreover, in this context SSHD v Patel [2022] EWCA Civ 36 (at paragraph [31]) makes it clear that estoppel does not apply, but that the overarching consideration is one of fairness: “…the proper approach to be taken by a FTT judge faced with a decision made in an earlier appeal was set out fully at [45] to [50] of [Sultana v SSHD [2021] EWCA Civ 1876]. It would not be helpful to repeat the analysis other than in the following very summary form. The essential position is that the second FTT judge cannot be subject to any principles of estoppel in relation to an earlier finding. Rather, the judge must conscientiously decide the case in front of them applying principles of fairness. Those principles include the potential unfairness of requiring a party to re-litigate a point on which they have previously succeeded. These propositions were drawn from Devaseelan, Djebbar v SSHD [2004] EWCA Civ 804 and BK (Afghanistan).” 48. The Secretary of State’s primary argument opposing the first ground of appeal is that there was no necessary overlap between the matters decided, or findings made, by the (first) First-tier Tribunal and that which was decided/found by the FTT, and therefore the BK (Afghanistan) line of case law did not apply. 49. In the alternative, the Secretary of State argued that if the FTT’s findings had overlapped with those made by the (first) First-tier Tribunal, the FTT had, per para. [43] of BK (Afghanistan), sufficiently and conscientiously addressed its mind to whether it should depart from any findings said by the appellant to have been made by the (first) First-tier Tribunal. 50. Turning to grounds 2 and 3, the Secretary of State argued that the expert FTT had addressed all the relevant medical evidence in detail, the consideration that flat line hearing loss is not consistent with noise induced hearing loss is matter of general medical knowledge which it was appropriate for the FTT to apply, and in any event was only one part of the FTT’s analysis. In these circumstances, the FTT did not need to raise the point with the parties, and it had arrived at a decision that was rationally open to it. Oral argument on ground 1 51. One focus of the oral argument of the parties before me concerned what the (first) First-tier Tribunal had decided on 15 June 2021. 52. The appellant argued that the (first) First-tier Tribunal had decided that all of his hearing loss had been (predominantly) caused by service. Accordingly, albeit on the basis of the BK (Afghanistan) line of case law, it had been wrong for the FTT to have trespassed on this and redecide the extent to which his hearing loss had been caused by service. 53. The respondent argued that the issue before the (first) First-tier Tribunal was limited to whether the appellant had any hearing loss that had been caused by service. In overturning the Secretary of State’s negative decision on this issue all the (first) Firsttier Tribunal had been deciding was that the appellant had an injury (hearing loss) which had been caused by service. But that tribunal was not in so doing assessing the extent of the appellant’s hearing loss. Further, and in the alternative, all the FTT had done was to assess the extent of the appellant’s hearing loss on the basis of all the evidence before it and found it fell below the minimum tariff in the AFCS, and it was not in so doing deciding the extent of the hearing loss caused by service. DN -v- SSD [2024] UKUT 238 (AAC) Case no: UA-2023-000969-AFCS 14 54. As will become apparent in the discussion below, in my judgement the correct approach to identifying what the (first) First-tier Tribunal had decided is (i) to consider what question or issue was before it, and (ii) in that context consider what it had decided. BK (Afghanistan) and related case law 55. It is convenient at this stage to consider BK (Afghanistan), and related case law, in a little more detail before turning to discuss the grounds of appeal. It was not argued before the FTT and so has not been subject of any consideration by that tribunal, but the broad considerations arising under it are similar to those that arose under the estoppel argument which was made to the FTT. 56. As I have said above, the estoppel argument was not pursued before me. This was on the basis that estoppel not applying in or between First-tier Tribunals is the binding legal effect of BK (Afghanistan) (at paragraphs [37], [39] and [44]) Sultana v SSHD [2021] EWCA Civ 1876 (at [35] and [49]-50]) and SSHD v Patel [2022] EWCA Civ 36 (at 31]). I proceed on that basis in deciding this appeal. 57. All of the above three decisions of the Court of Appeal arose in the context of adjudication on immigration claims, latterly in the First-tier Tribunal (Immigration and Asylum Chamber). The important foundational basis of all three decisions of the Court of Appeal is that the first adjudicator or First-tier Tribunal had made a material finding of fact in deciding the appeal before them and that issue of fact then became relevant in later and separate appeal proceedings (possibly involving different parties, though the Secretary of State would be the same respondent) before a second adjudicator or First-tier Tribunal. The issue of law that arose was the extent to which the second adjudicator or First-tier Tribunal was bound to accept the finding of fact. 58. The eight factors set out in BK (Afghanistan) are derived from Deveseelan v SSHD [2002] UKIAT 702, and are as follows: “(1) The first adjudicator's determination should always be the starting-point. It is the authoritative assessment of the appellant's status at the time it was made. In principle issues such as whether the appellant was properly represented, or whether he gave evidence, are irrelevant to this. (2) Facts happening since the first adjudicator's determination can always be taken into account by the second adjudicator. (3) Facts happening before the first adjudicator's determination but having no relevance to the issues before him can always be taken into account by the second adjudicator. (4) Facts personal to the appellant that were not brought to the attention of the first adjudicator, although they were relevant to the issues before him, should be treated by the second adjudicator with the greatest circumspection. (5) Evidence of other facts, for example country evidence, may not suffer from the same concerns as to credibility, but should be treated with caution. (6) If before the second adjudicator the appellant relies on facts that are not materially different from those put to the first adjudicator, the second adjudicator should regard the issues as settled by the first adjudicator's DN -v- SSD [2024] UKUT 238 (AAC) Case no: UA-2023-000969-AFCS 15 determination and make his findings in line with that determination rather than allowing the matter to be re-litigated. (7) The force of the reasoning underlying guidelines (4) and (6) is greatly reduced if there is some very good reason why the appellant's failure to adduce relevant evidence before the first adjudicator should not be, as it were, held against him. Such reasons will be rare. (8) The foregoing does not cover every possibility. By covering the major categories into which second appeals fall, the guidance is intended to indicate the principles for dealing with such appeals. It will be for the second adjudicator to decide which of them is or are appropriate in any given case.” 59. It is important to stress a number of points about the eight Devaseelan factors summarised in paragraph [32] of BK (Afghanistan). 60. First, they were preceded, in para. [31], with a discussion of the case in Devaseelan. That context was: “31….. The proper approach of the second tribunal should reflect the fact that the first adjudicator's determination stands as an assessment of the claim that the appellant was then making at the time of that determination. It is not binding on the second adjudicator but on the other hand the second adjudicator is not hearing an appeal against it. It is not the second adjudicator's role to consider arguments intended to undermine the first adjudicator's determination but the second adjudicator must be careful to recognise that the issue before him is not the issue that was before the first adjudicator: "38. … In particular, time has passed; and the situation at the time of the second adjudicator's determination may be shown to be different from that which obtained previously."” 61. Second, they are dependent on, here, the (first) First-tier Tribunal having made a finding of fact in its decision on the appeal before it which the FTT may have needed to reconsider in deciding the appeal which was before it. (Given estoppel is not in play, the appellant accepts that as a matter of law the FTT was not bound by any finding of fact made by the (first) First-tier Tribunal.) 62. Third, the factors are guidelines. They are not laying down any strict legal code that must be followed. 63. Fourth, the guidelines seek to ensure consistency of approach by decision makers and respect finality of litigation. However, finality of litigation is subject always to the discretion of the tribunal (or court) if wider interests of justice so require. And, per paragraph [30] of Djebbar v SSHD [2004] EWCA Civ 804, “perhaps the most important feature of the guidance is that the fundamental obligation of every [First-tier Tribunal] independently to decide each new application on its own individual merits was preserved”: per paragraphs [34]-[39] of BK Afghanistan. 64. Fifth, the first decision or finding of fact is a starting point, it is not determinative: para. [43] of BK Afghanistan. This in my judgement very significantly waters down what was said in TK (see paragraph 40 above). However, the case law still emphasises that the “second FTT judge necessarily will look for a very good reason to depart from the earlier findings. Whether the evidence could have been adduced at the previous hearing may be relevant to that issue. Equally, a very good reason may be that the DN -v- SSD [2024] UKUT 238 (AAC) Case no: UA-2023-000969-AFCS 16 new evidence is so cogent and compelling as to justify a different finding”: per paragraph [37] of Patel. 65. Sixth, the key consideration is fairness. This is made clear from paragraph [44] in BK (Afghanistan) where the Court of Appeal said that it did not: “44…accept that in addressing the question of whether the finding of fact should be carried forward in that way, the tribunal is only entitled to look at material which either post-dates the earlier tribunal's decision or which was not relevant to the earlier tribunal's determination. To restrict the second tribunal in that way would be inconsistent with the recognition in the case law that every tribunal must conscientiously decide the case in front of them. The basis for the guidance is not estoppel or res judicata but fairness. A tribunal must be alive to the unfairness to the opposing party of having to relitigate a point on which they have previously succeeded particularly where the point was not then challenged on appeal. (The underlining is mine and has been added for emphasis.) See further, Sultana at paragraph [50] and (as set out in paragraph 47 above) Patel at paragraph [31]. 66. I need to make one final observation about this BK Afghanistan line of case law. The Secretary of State accepted for the purposes of this appeal that that line of case law applies to equal effect in the War Pensions and Armed Forces Compensation Chamber of the First-tier Tribunal. I have, accordingly, not heard any argument to the contrary, and I proceed on that same assumed basis. However, I am mindful that the same policy considerations that led to the BK Afghanistan line of case law (e.g., per paragraph [27] of Ocampo v SSHD [2006], as well as fairness, the “maintenance of proper immigration control”) may not have an analogue in armed forces compensation appeals. The approach of the Court of Appeal in the Duncan and McWilliams case which I discuss immediately below, as well as the possible application of a similar rule to that set out by Baroness Hale in paragraph [41] of Gillies v SSWP [2006] UKHL 2 (that the system tries to ensure that the claimant receives the correct award of benefit), might suggest a different approach may apply in AFCS (and War Pensions) appeals. Discussion and conclusion Ground 1 67. The decision of the Court of Appeal in Secretary of State for Defence v Duncan and McWilliams [2009] EWCA Civ 1043; [2010] AACR 5 provides general (and binding) authority for the proposition that the relevant date for assessing the injury is the date of the decision on the claim (or that aspect of the claim) and not the date of the injury itself, and that the task of the decision maker is to identify the descriptor most accurately describing the injury: see paragraphs [47]-[55] and [110] of that decision. As the Court of Appeal made plain (at para. [50]) “all relevant evidence before the tribunal should be considered when assessing which injuries were caused by service, and what their actual and likely trajectories were”. 68. Duncan and McWilliams also explains that the intention behind the immediate predecessor to the AFCS (with which it was concerned, though the same must in my view apply to the AFCS) “was to provide a fair system, easy to administer” (at paragraph [2]) and, as the initial decisions on claims is taken by lay persons appointed by the Secretary of State, it was important that “the scheme should be relatively simple” DN -v- SSD [2024] UKUT 238 (AAC) Case no: UA-2023-000969-AFCS 17 (para. [3]). The Court of Appeal later refers to decision making under the AFCS being “a practical kind of jurisprudence” and the AFCS being “a practical scheme intended to work broad justice” (para. [93]). 69. As I have foreshadowed in paragraph 54 above, the identification of what the (first) First-tier Tribunal was deciding must begin with the statutory basis under which the appeal came before it and on which it was to be decided. That is covered primarily by section 5A of the Pensions Appeal Tribunals Act 1943. 70. Section 5A of the Pensions Appeal Tribunals Act 1943 deals with appeals against specified decisions made under the AFCS. Under section 5A(1)(b) the (only) question for the (first) First-tier Tribunal was “whether the [Secretary of State’s decision of 19 February 2019] was rightly made on that [specified] ground”. As was confirmed by the three-judge panel of the Upper Tribunal in paragraph [25] of JM v SSD [2015] UKUT 332 (AAC); [2016] AACR 3, the ground of the Secretary of State’s decision is that the statutory condition of entitlement was not satisfied. JM was confirming what was said in paragraph 12 of CAF/656/2006. Paragraph 11 of CAF/656/2006 (further) sets out that the wording of section 5A(1)(B) makes apparent that it is the decision appealed against and the ground on which that decision was made which define the scope of the appeal. 71. What then was the specified ground of the 19 February 2019 decision of the Secretary of State? In my judgement, the ground was, as the Secretary of State contends, (only) that the appellant‘s hearing loss was not wholly or partly caused by service. The key reason for that decision (which as CAF/656/2006 and JM confirm is not the ground on which the Secretary of State’s decision was made) was that the appellant would have been sufficiently protected against excessive noise in the workplace (reasoning with which the (first) First-tier Tribunal very arguably did not grapple, though that is not a matter for me as that tribunal decision was never challenged and is not under appeal before me). 72. No part of the Secretary of State’s decision of 19 February 2019 purported to determine the extent of the appellant’s hearing loss or the extent to which it was caused by service. That this was the ground of the Secretary of State’s decision is, moreover, consistent with terms of article 8(1) of the AFCS and the critical entitlement provision that the appellant had an injury which was caused by service. Bearing in mind that the appellant’s claim was (understandably) put on a fairly general basis about the loss of his hearing in both ears and that the hearing loss had been caused by service, and bearing further in mind (per Duncan and McWilliams) the need for a non-technical approach to adjudication by the Secretary of State’s decision makers, it seems to me that what the (first) First-tier Tribunal was limited by section 5A(1)(b) of the Pensions Appeal Tribunals Act 1943 to deciding was whether the Secretary of State had been right to decide that none of whatever hearing loss the appellant may have had had been caused by service. That specified decision of the Secretary of State on its own determined, per regulation 3(1)(a) of the Specified Decisions Regs, whether a benefit was payable. And that decision, following JM and CAF/656/2006, was a decision that the statutory condition of entitlement in article 8 of the AFCS was not met. In these circumstances, it was not necessary, indeed it would have been illogical, for the Secretary of State to have made a further specified decision, under regulation 3(1)(b) of the Specified Decisions Regs, about the amount payable under an award of benefit. And it was at that regulation ‘3(1)(b) stage’ of specified decision making in this case DN -v- SSD [2024] UKUT 238 (AAC) Case no: UA-2023-000969-AFCS 18 that the extent of the hearing loss, and potentially the extent of the hearing loss caused by service, came into issue. 73. I am mindful that section 5A of the Pensions Appeal Tribunals Act 1943 may not be the end of the matter as it can be supplemented by section 5B of the same Act. Section 5B(a) mirrors section 12(8)(a) of the Social Security Act 1998 and required the FTT in this case to consider any issue raised by the appellant (or the Secretary of State) in relation to deciding whether the Secretary of State’s specified decision as to satisfaction of article 8 of the AFCS was rightly made. It seems to me unlikely that that section 5B(a) consideration could extend to deciding the entirely separate and distinct issue, under regulation 3(1)(b) of the Specified Decisions Regs, of the level of any award to be made to the appellant for his bilateral hearing loss. That would seem to run contrary to the need for the issue raised in the first appeal to be in relation to whether article 8 of the AFCS was satisfied. Moreover, it is plain the (first) First-tier Tribunal did not take this step and, as I have noted above, it is no part of the appellant’s case that a decision on the correct tariff level was not required after the (first) First-tier Tribunal’s decision. 74. However, even if it is arguable that section 5B(a) of the Pensions Appeal Tribunals Act 1943 enabled the appellant to raise an issue about the extent to which his hearing loss had been caused by service on his appeal about satisfaction of article 8 of the AFCS, and even assuming he was raising such an issue in his appeal when he said the “hearing loss is [definitely] severe”, I can find nothing in the (first) First-tier Tribunal’s decision that gives any clear consideration to this raised issue, let alone a clear decision by that tribunal on that issue. That, I have to say, is unsurprising. At this stage in the decision-making process, no decision had been made as to the severity of the appellant’s bilateral hearing loss. The (first) First-tier Tribunal would have known this and have known that its decision would have led to a tariff decision being made by the Secretary of State (i.e., a decision as to the extent of the hearing loss). Moreover, the appellant’s argument about the severity of his hearing loss was not directly or obviously about how much of that loss had been caused by service, and nothing in the Secretary of State’s decision-making on whether article 8 was satisfied was in terms of it only being some of the hearing loss that was caused by service. In any event, even if the (first) First-tier Tribunal ought to have considered this issue under section 5B(a), there is nothing showing it clearly made a decision on this issue, and its decision is not under appeal. 75. It is the case, however, that as a matter of fact the (first) First-tier Tribunal considered that two issues arose on the appeal before it: first, whether the appellant had any bilateral hearing loss and, second, if he did, whether the hearing loss was caused by service. For the reasons I have given above, I consider the (first) First-tier Tribunal was wrong to consider, per section 5A(1) of the Pensions Appeal Tribunals Act 1943, that an issue before it was whether the Secretary of State had rightly rejected the claim on the ground that the appellant had no injury/hearing loss. But the (first) First-tier Tribunal did decide both that the appellant suffered from bilateral sensorineural hearing loss and that that injury had been caused by service. It may be that its consideration and decision on the first issue arose under section 5B(a) of the Pensions Appeal Tribunals Act 1943, though its decision and reasoning is silent on this if this was its reasoning. 76. It was in the context of deciding whether the appellant had any hearing loss that the (first) First-tier Tribunal relied on the Institute of Naval Medicine’s (INM’s) report DN -v- SSD [2024] UKUT 238 (AAC) Case no: UA-2023-000969-AFCS 19 and, per paragraph 17 of its reasons, “therefore found that….the appellant suffered from bilateral sensorineural hearing loss”. 77. However, even assuming that whether the appellant had bilateral hearing loss was an issue on that appeal, this was the sole context for the (first) First-tier Tribunal decision and its reliance on the INM report. It was satisfied that the appellant had hearing loss because of its acceptance of the cogency of the evidence in the INM report, and the (first) First-tier Tribunal then further decided that the hearing loss had been caused by service. But, as I have already said, it did not purport to decide the level of the hearing loss (i.e., and per Duncan and McWilliams, identifying the descriptor most accurately describing the injury). 78. The more difficult issue is whether the (first) First-tier Tribunal decided that the whole of the appellant’s 2018 presenting hearing loss was caused by service. It did not expressly make this decision. Moreover, as I have indicated above, it did not really grapple with the Secretary of State’s case on causation that the appellant would have been sufficiently protected in the workplace and so any hearing loss the appellant had could not have been caused by service. Additionally, it was not, for the reasons I have endeavoured to give above, an issue which the (first) First-tier Tribunal was legally bound to decide. Furthermore, its use of “to this extent” indicates that it considered its decision was limited. On the other hand, the (first) First-tier Tribunal rejected the Secretary of State’s reliance on causation (albeit it may not have adequately explained why it did so), and as it was assessing matters at the date of the decision on the claim, it may be argued that it was deciding that all of the hearing loss it decided the appellant had had been caused by service. 79. In the end, I have decided it is not necessary for me to decide this point. I say this because the appellant, having abandoned his estoppel argument, accepts that the FTT was entitled as a matter of law in deciding the tariff decision (which he accepts it was required to do on his appeal) to redecide matters which the (first) First-tier Tribunal had decided. The appellant’s argument is that in so doing the FTT had to act in accordance with the guidance stemming from BK Afghanistan and it had failed to do so. 80. I would simply add, in terms of a general perspective that the extent to which an injury was caused by service can lawfully come into play at the stage of determining the amount payable under an award of benefit, finds support in consideration of some of the other injuries covered by Schedule 3 to the AFCS and the Duncan and McWilliams approach to how claims should be decided, as well as by the fact that article 8 of the AFCS does not necessarily require that issue to be decided at that stage. One particular injury I have in mind is the Mental Disorder descriptor set out in paragraph 12 above. It requires that the mental disorder caused by service causes functional limitation or restriction which…..is expected to continue for five years. There may be no dispute in such a case that the service person’s initiating mental disorder was caused by service. However, on its face this descriptor would seem to allow for consideration to be given to other non-service causes which might instead be said to be the cause of the functional limitation or restriction being expected to continue for five years, and that particular consideration may only arise at the stage of the identifying the most appropriate descriptor. As for Duncan and McWilliams, it identified a need for flexibility in decision making (see for example paragraphs [50] and [55] of the Court of Appeal’s decision) and seemingly did not discount reassessing which injuries were caused by service even at the tariff selection stage of decision-making: para [50]. DN -v- SSD [2024] UKUT 238 (AAC) Case no: UA-2023-000969-AFCS 20 81. Turning back to the first ground of appeal and whether the FTT erred in law in not following BK (Afghanistan), it is no answer to that ground to say that this argument was not made to the FTT. The FTT has to be judged on whether it erred in law in coming to its decision and such an error can arise independently of the actual arguments made to the FTT. 82. Further, reliance on estoppel having been abandoned, it is not clear to me that the issue estoppel principle - that an issue which was necessarily common in both proceedings and which was decided in the earlier proceedings is binding in the second proceedings – necessarily reads across into the BK Afghanistan line of case law. BK Afghanistan itself makes plain (at para. [44]) that the basis for the guidance it endorses has nothing to do with estoppel. I am not sure, therefore, that it can be a complete answer to the appellant’s first ground of appeal to show that there was no necessarily common issue in both appeal proceedings before the (first) First-tier Tribunal and the FTT, and therefore the BK (Afghanistan) line of authority does not apply. 83. This perspective would seem to be supported by the fact that in each of BK Afghanistan, Sultana and Patel it was a core finding of fact that was directly common in both sets of proceedings. In BK Afghanistan the common factual issue was whether the appellant had committed terrorist acts; in Sultana the common factual issue was whether the appellant had relied on false documents; and in Patel the common issue in both sets of proceedings was whether the appellant had committed deception, albeit the first finding that she had not committed a deception had been made in her husband’s appeal. Moreover, paragraph [31] of BK Afghanistan identifies the key point as being the approach to be taken by the second tribunal to findings of fact made by the first tribunal. And it may be observed that in each of these three Court of Appeal cases the legal issues may be said to have been different: e.g., in BK Afghanistan the legal issue on the first appeal concerned BK’s claim for asylum, the issue on the second appeal was the cancellation of the indefinite leave to remain BK had been granted five years after his claim for asylum had been decided against him. Additionally, the appellant’s core argument under the first ground of appeal relies on the sixth guideline in paragraph [32] of BK (Afghanistan) which is concerned with findings of fact. Furthermore, his argument, based on BK Afghanistan, is that the FTT should have regarded as settled the (first) First-tier Tribunal’s ‘finding of fact’ that the “INM report was the most reliable” report. 84. Where the lack of commonality between the statutory issues being decided by the two different tribunals may have some relevance is as a relevant factor bearing on that which it is that the second tribunal has to conscientiously decide when applying the BK (Afghanistan) guidance. The (first) First-tier Tribunal was, as is accepted, not deciding the level of the hearing loss. It decided, and only decided, whether the appellant had bilateral hearing loss and whether that injury was caused by service. The FTT had to decide, and per paragraph [44] of BK Afghanistan, conscientiously decide, the extent of the appellant’s hearing loss. 85. However, I can put the observation in the immediately preceding paragraph to one side. This is because the crucial issue in this case, in my judgement, is the ‘finding of fact’ on which the appellant seeks to base his BK Afghanistan argument. That finding is that the “INM report was the most reliable” report. I have to say I have doubts about whether an assessment as to the reliability of evidence constitutes a finding of fact as opposed to being an evaluative judgement (see the discission on this in paragraph [55] of Disclosure and Barring Service v AB [2021] EWCA Civ 1575; [2022] 1 WLR 1002). DN -v- SSD [2024] UKUT 238 (AAC) Case no: UA-2023-000969-AFCS 21 86. More importantly, however, based on the (first) First-tier Tribunal’s reasoning that finding (if it was a finding of fact) was made only in the context of the (first) First-tier Tribunal deciding whether the appellant had (any) bilateral hearing loss. It was not made in the context of the (first) First-tier Tribunal deciding whether the hearing loss had been caused by service. Nor, it must follow, was it made in any adjudication the (first) First-tier Tribunal may have made as to the extent to which the hearing loss was caused by service. Even less so was it made in the context of that tribunal deciding the extent of the appellant’s hearing loss. As is agreed, that separate statutory question remained to be addressed and answered only after the (first) First-tier Tribunal had made its decision. It was not therefore a finding by the (first) First-tier Tribunal that the extent of the appellant’s hearing loss was, per what the INM report indicated, bilateral hearing loss of 65dB in each ear. The FTT in its decision did not either trespass on or subvert the (first) First-tier Tribunal’s decision that the appellant had hearing loss or that the hearing loss had been caused by service. It was not therefore allowing either of those issues to be relitigated. 87. Translating this into the language of the Devaseelan guidance as set out in paragraph [32] of BK Afghanistan: (i) per guidance factor (1), the (first) First-tier Tribunal’s decision was taken as the (necessary) starting point by the FTT, and that decision was an authoritative assessment of the appellant’s status at that time on the basis of the issues before the (first) First-tier Tribunal at that time (namely, but limited to, whether the appellant had hearing loss which was caused by service); (ii) per guidance factor (6), although there was no new evidence before the FTT and the appellant was relying on the INM report, and even though the FTT accepted “the issues as settled by the [first First-tier Tribunal’s] decision”, the FTT in deciding the separate statutory question before it could not make its decision “in line” with the two issues decided by the (first) First-tier Tribunal. This is because it had to decide the separate statutory issue before it (the extent of the hearing loss) and that issue had not been settled by the (first) First-tier Tribunal; and (iii) per guidance factor (8), the first seven guidance factors did not cover the appeal to the FTT. 88. Accordingly, as factor (6) in the Devaseelan/BK Afghanistan guidance does not apply, and the first ground of appeal is founded on that factor (6) alone, the first ground of appeal must fail. 89. However, even if this is to read the Devaseelan/BK Afghanistan guidance too narrowly and too literally, and more broadly speaking the starting point for the FTT under that guidance was that the INM report had been found to be the most reliable evidence generally about the appellant’s hearing loss, in my judgement the FTT did not offend against the more general guidance in BK (Afghanistan) (as endorsed in Sultana and Patel). I agree with the Secretary of State that, per paragraph [43] of BK Afghanistan, what the FTT had to do was “address its mind to the reasons put forward by the party [the Secretary of State] who was seeking to depart from the previous finding as to why that finding is unreliable”. The FTT did this. The extent of the appellant’s hearing loss had not been in issue before the (first) First-tier Tribunal and the FTT was “not satisfied that the previous Tribunal had addressed its mind to the matter of quantum or tariff selection when giving reasons for the entitlement decision, DN -v- SSD [2024] UKUT 238 (AAC) Case no: UA-2023-000969-AFCS 22 and was satisfied that it certainly had no intention of biding any future Tribunal in deciding a tariff selection”. Furthermore, the FTT set out why it did not consider the INM report to be the most reliable. And, in the proceedings before it, the FTT, in fairly and conscientiously deciding the appeal as to the extent of the appellant’s hearing loss, gave the appellant adequate notice that it wished to consider the reliability of the INM report: see further on this under the second ground of appeal below. 90. For all these reasons, the first ground of appeal fails. I can take the remaining two grounds much more quickly. Ground 2 91. The FTT in my judgment did not err in law in not giving the appellant an opportunity to address it on its view that the flat line hearing loss in the INM report was not consistent with typical noise induced hearing loss. I have concluded this for two reasons. First, the appellant’s arguments through Mr Searle before the FTT were not concerned with cogency of the findings in the INM Report. The appellant’s argument to the FTT was simply that it was bound by that report. Second, and in any event, I was taken through the transcript of the FTT’s hearing and it is apparent that, notwithstanding the appellant’s stance, the FTT did seek to raise with the appellant and Mr Searle concerns about the INM’s report. The appellant did not seek an adjournment to address the concerns there might have been about that report. In these circumstances, I do not consider the FTT acted unfairly or otherwise erred in law when it relied in its reasoning (a) on the fact that the INM Report had not been asked to comment on flat line hearing loss across all frequencies, and (b) in finding that such flat line hearing loss was not consistent with noise induced hearing loss. In the circumstances of the appeal to the FTT and how it was argued, it seems to me that the FTT did its best to raise with the appellant, through Mr Searle, its concerns about the INM’s report. Ground 3 92. In the absence of any evidence showing the FTT was plainly and obviously wrong in its view about the Institute of Naval Medicine’s report, and bearing in mind the specialist membership of the FTT and the need for it to bring that specialist expertise (medical as well as legal and military) to the evidence before it, the FTT did not make a legal perverse decision about that report. Approved for issue by Stewart Wright Judge of the Upper Tribunal On 31st July 2024
[2024] UKUT 191 (AAC)
Appeal No. UA-2023-000866-AFCS
IN THE UPPER TRIBUNAL
ADMINISTRATIVE APPEALS CHAMBER
On appeal from the First-tier Tribunal (War Pensions and Armed Forces Compensation Chamber)
Between:
J.H.
Appellant
- v -
Secretary of State for Defence
Respondent
Before: Upper Tribunal Judge Wikeley
Hearing date: 20 June 2024
Decision date: 1 July 2024
Representation:
Appellant: Ms Jasmine Skander of Counsel, instructed by Irwin Mitchell LLP
Respondent: Mr Will Hays of Counsel, instructed by the Government Legal Department
DECISION
The decision of the Upper Tribunal is to dismiss the appeal. The decision of the First-tier Tribunal made on 25 April 2023 under case number AFCS/00735/2020 does not involve any material error of law (section 11 of the Tribunals, Courts and Enforcement Act 2007).
REASONS FOR DECISION
The subject matter of this appeal to the Upper Tribunal
1. This appeal is about a claim for compensation for Post-Traumatic Stress Disorder (PTSD) made under the Armed Forces Compensation Scheme (AFCS).
A bare outline of the course of the appeal
2. The Veterans UK decision-maker, acting on behalf of the Secretary of State for Defence, decided that the claimant was entitled to an AFCS award on the basis of his PTSD at Table 3, Item 4, Level 12. The claimant appealed to the First-tier Tribunal, which allowed his appeal in part, ruling that the appropriate descriptor was a step higher at Table 3, Item 3, Level 10. The claimant now appeals to the Upper Tribunal against the decision of the First-tier Tribunal, having argued that the proper descriptor to be applied was in fact at the still higher rate of Table 3, Item 1, Level 6.
The Upper Tribunal oral hearing of the appeal
3. I held an oral hearing of this appeal at the Manchester Civil Justice Centre on 20 June 2024. The Appellant was represented by Ms J Skander of Counsel, instructed by Irwin Mitchell, Solicitors. The Respondent, the Secretary of State for Defence, was represented by Mr W Hays of Counsel, instructed by the Government Legal Department on behalf of Veterans UK. I am grateful to both counsel for their oral and written submissions.
A summary of the Upper Tribunal's decision
4. I dismiss the claimant's further appeal to the Upper Tribunal. This is because the decision of the First-tier Tribunal does not involve any material legal error.
5. To protect the claimant's privacy, I refer to the claimant in this decision as simply 'the Appellant' or as 'Mr H' rather than by name. To avoid the risk of 'jigsaw identification', I also provide only the barest information about the factual background to the appeal. However, the limited details that are supplied are sufficient to understand the context of the case.
The factual background to this appeal
6. The Appellant served as an infantry private in the Army from 2003 until 2009. He witnessed distressing incidents while on tours of duty in both Northern Ireland and Iraq. In 2017 a consultant psychiatrist (Dr Cahill) diagnosed the Appellant as suffering from PTSD. In the same year Veterans UK accepted that AFCS service was the predominant cause of the Appellant's PTSD and accordingly made an interim award of compensation under the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011 (SI 2011/517, 'the 2011 Order'). In 2019 Veterans UK finalised that interim award by placing the Appellant's PTSD at Table 3, Item 4, Level 12 of Schedule 3 to the 2011 Order. That final award was confirmed following reconsideration in January 2020.
The legal background to this appeal
7. Table 3 of Schedule 3 to the 2011 Order provides as follows:
Table 3 - Mental disorders(*)
Item
Column (a)
Column (b)
Level
Description of injury and its effects ("descriptor")
A1
4
Permanent mental disorder causing very severe functional limitation or restriction(aa)
1
6
Permanent mental disorder, causing severe functional limitation or restriction(a)
2
8
Permanent mental disorder, causing moderate functional limitation or restriction(b)
3
10
Mental disorder, causing functional limitation or restriction, which has continued, or is expected to continue for 5 years
4
12
Mental disorder, which has caused, or is expected to cause functional limitation or restriction at 2 years, from which the claimant has made, or is expected to make, a substantial recovery within 5 years
5
13
Mental disorder, which has caused, or is expected to cause, functional limitation or restriction at 26 weeks, from which the claimant has made, or is expected to make, a substantial recovery within 2 years
6
14
Mental disorder, which has caused or is expected to cause, functional limitation or restriction at 6 weeks, from which the claimant has made, or is expected to make, a substantial recovery within 26 weeks
(*) In assessing functional limitation or restriction in accordance with article 5(6) account is to be taken of the claimant's psychological, social and occupational function.
(*) Mental disorders must be diagnosed by a clinical psychologist or psychiatrist at consultant grade.
(aa) Functional limitation or restriction is very severe where the claimant's residual functional impairment after undertaking adequate courses of best practice treatment, including specialist tertiary interventions, is judged by the senior treating consultant psychiatrist to remain incompatible with any paid employment until state pension age.
(a) Functional limitation or restriction is severe where the claimant is unable to undertake work appropriate to experience, qualifications and skills at the time of onset of the illness and over time able to work only in less demanding.jobs.
(b) Functional limitation or restriction is moderate where the claimant is unable to undertake work appropriate to experience, qualifications and skills at the time of onset of the illness but able to work regularly in a less demanding job.
8. Accordingly, this case has involved consideration of three different descriptors. The Secretary of State's decision was that the appropriate descriptor was "Mental disorder, which has caused, or is expected to cause functional limitation or restriction at 2 years, from which the claimant has made, or is expected to make, a substantial recovery within 5 years" (Item 4, Level 12). The First-tier Tribunal, however, decided that the proper descriptor was "Mental disorder, causing functional limitation or restriction, which has continued, or is expected to continue for 5 years" (Item 3, Level 10). The Appellant, on the other hand, contended that " Permanent mental disorder, causing severe functional limitation or restriction" was the applicable descriptor (Item 1, Level 6).
9. By way of comparison, these descriptors translate into amounts of £10,300 (Level 12), £27,810 (Level 10) and £144,200 (Level 6) respectively (see Table 10 'Tariff amounts' of Schedule 3 to the 2011 Order). The double step change from Item 3 (Level 10) to Item 1 (Level 6) is therefore marked.
10. There is one other provision of note in the 2011 Order. Article 5(7)(a) provides as follows:
(7) Functional limitation or restriction is —
(a) "permanent" where following appropriate clinical management of adequate duration—
(i) an injury has reached steady or stable state at maximum medical improvement; and
(ii) no further improvement is expected.
The consultant psychiatrist's 2017 report
11. The consultant psychiatrist's 2017 report (by Dr Cahill), which made the original diagnosis of the Appellant's PTSD, included the following passage (now suitably anonymised and with bold emphasis as in the original) under the heading 'Treatment':
[Mr H] has not received any formal psychological treatment to date. He has had a number of assessments, and at one point was offered group therapy or Eye-Movement Desensitisation and Reprocessing (EMDR), but these never reached fruition.
He has tried pharmacological treatment in the form of two SSRIs (Selective Serotonin Reuptake Inhibitors Antidepressants), with some reduction of symptoms.
The treatment requirement for PTSD is trauma-focussed therapy in the form of either Trauma Focussed Cognitive Behavioural Therapy or Eye-Movement Desensitisation and Reprocessing (EMDR).
However, in my opinion, [Mr H] needs a lot of 'psychological preparation' before embarking on a structured form of therapy. He needs to build up a therapeutic, trusting relationship with a professional to work on some low-grade coping strategies, and anxiety management in the form of relaxation, mindfulness and graded exposure, prior to discrete work on the trauma.
If [Mr H] can embark on some form of therapy, for example the EMDR which is in the pipeline, I envisage this will take a lot longer than the standard 18-24 sessions normally prescribed.
12. As will become evident, much of the debate in the present appellate proceedings has revolved around the meaning of the expression "formal psychological treatment" (as it appears in the first paragraph of this passage in Dr Cahill's report). This passage is especially relevant to the first three of the four primary grounds of appeal.
13. In the next passage of his report, Dr Cahill addressed the prognosis for Mr H as it appeared in 2017:
Evidence suggests that 2 in 3 people with PTSD eventually get better without treatment. 1 in 3 may have more lasting effects, which can last for years and can be very severe. Outcome will depend on length and severity of trauma but the majority of those with severe cases respond well to highly specific trauma focused therapies. The trauma aspect of the illness is relatively uncomplicated to treat but associated factors such as alcohol, illicit drug use, relationship breakdown, financial difficulties, poor self-esteem and social withdrawal are harder to tackle.
Positive factors include, but not limited to, a robust premorbid personality, above average cognitive ability, good social skills, optimism, social and environmental stability and strong social support, less severe trauma, early intervention, minimal duration of trauma, trauma not experienced up close, and absence of alcohol and illicit drug use. Males have better overall prognosis.
Taking these factors into account, in my opinion, [Mr H]'s prognosis is poor. There is a predisposition to anxiety and evidence of poor coping mechanisms. He joined the Army at a young age, when his personality was still forming, and there is evidence that he struggled to cope, as well as forming solid relationships and it is likely there were elements of his personality which were not robust.
There is evidence of poor self-esteem, pessimism and social withdrawal. However, he has a strong family support network.
He has suffered for many years without being able to engage in the support or treatment he has required. There appears to be a barrier to accessing treatment which he first must overcome.
14. This passage on prognosis is particularly relevant to the fourth and final ground of appeal.
The Secretary of State's decision
15. The Appellant made a claim under the AFCS in respect of his PTSD in August 2017. On 5 October 2017 the Veterans UK decision-maker placed the Appellant's PTSD as an interim award at Table 3, Item 4, Level 12. On 4 April 2019 that award was finalised on the same basis, the decision-maker accepting medical advice to the effect that Mr H did "not appear to be engaging with specialist services and is not receiving any specialist mental health input". That decision was maintained following reconsideration on 6 January 2020. On 13 February 2020 the Appellant lodged an appeal.
The First-tier Tribunal's decision
16. The First-tier Tribunal (from now on, simply 'the Tribunal') held a remote CVP hearing of the appeal on 14 March 2023. It issued its decision notice a few days later on 20 March 2023, giving the following summary reasons:
(1) The Tribunal was satisfied that, at the date of the decision, [the Appellant's] mental disorder caused a functional limitation or restriction which was expected to continue for 5 years.
(2) The Tribunal was not satisfied that [the Appellant's] mental disorder is permanent for the purposes of the descriptors in items 1 and 2 of Table 3.
(3) In reaching our decision, the Tribunal carefully considered the legal submissions on the meaning of the word "permanent" in this context.
17. This decision notice was followed by the Tribunal's full written reasons (signed off on 23 April 2023, issued on 25 April 2023).
18. Having set out its findings about the process leading up to the Appellant's diagnosis by Dr Cahill, the Tribunal made the following findings of fact (here suitably anonymised):
33. The first diagnosis of PTSD was made by a consultant psychiatrist - Dr Cahill - on 5 June 2017. This was in a report requested by Veterans UK.
34. Mr H currently spends most of his time at home, sitting in one room. He is unable to be left alone. His partner is his carer. His children are home schooled. He avoids social situations. His family are unable to go on days out. He constantly fears that something will happen to his children.
35. Mr H has not received any formal psychological treatment. He has had a number of assessments and at one point was offered group therapy or Eye-movement Desensitisation and Reprocessing. However, these have not been completed (page 64 reverse in the bundle.)
36. Mr H has completed 12 sessions of Cognitive Behavioural Therapy ["CBT"]. These were mostly online, so he did them from home where his partner was able to support him. The sessions did not result in an improvement of his symptoms. Mr H did learn some coping mechanisms from the CBT.
37. The opinion of Dr Cahill is that Mr H "needs a lot of 'psychological preparation' before embarking on a structured form of therapy. He needs to build up a therapeutic, trusting relationship with a professional to work on some low-grade coping strategies, and anxiety management in the form of relaxation, mindfulness and graded exposure, prior to the discrete work on the trauma....If [he] can embark on some form of therapy, for example the EMDR which is in the pipeline, I envisage this will take a lot longer than the standard 18-24 sessions normally prescribed."
38. Mr H has been unable to engage in the support or treatment he requires and there is a barrier to accessing treatment that he must overcome (page 65 in the bundle). However, Mr H's evidence is that he thought he had responded well to Dr Cahill. He explored the possibility of private treatment with Dr Cahill, but the cost was prohibitive.
39. There is medical evidence that the prognosis for Mr H is poor. Dr Cahill says that "there is a predisposition to anxiety and evidence of poor coping mechanisms. [Mr H] joined that Army at a young age, when his personality was still forming, and there is evidence that he struggled to cope, as well as forming solid relationships, and it is likely that there were elements of his personality which were not robust." (See page 65 in the bundle.)
40. Mr H has a strong family support network, which is positive.
41. Mr H has had many medication changes, which is managed by his GP.
42. Mr H has not been in paid work since he left service. At some point, he worked for his father on his father's market stall, but this was unpaid. His evidence to us was that, when he was discharged, that he was thinking of being a vehicle mechanic. He started a college course relating to vehicle mechanics, but was not successful. This was in part due to loud noises that he found difficult to cope with. He also attempted sports fitness coaching course but it was too much for him to deal with. Mr H has considered working in mental health, and found a course that interested him, but could not complete all of the necessary assessments.
43. During service, Mr H underwent a silver service course, a signalling course, a medics course and he re-took his maths and English exams (as he said that his grades from school were not good). He had a driving licence, but no longer uses it. Currently he has a provisional driving licence. Mr H reported being good at working in a team, being reasonably organised and that he could deal with noisy places.
44. Mr H is of the opinion that he is unable to cope with trauma therapy. He feels that the online therapy sessions he has been able to do have provided him with coping tools. He strongly believes his PTSD will remain indefinitely.
19. In the final section of its decision, headed 'Conclusions', the Tribunal then reasoned as follows:
45. We are satisfied that, at the date of the decision, Mr H's mental disorder caused a functional limitation or restriction which was expected to continue for 5 years.
46. We are not satisfied that Mr H's mental disorder, at the date of the decision, was permanent for the purposes of the descriptors in items 1 and 2 of Table 3.
47. In reaching our decision, we carefully considered the legal submissions on the meaning of the word "permanent" in this context.
48. In respect of whether Article 5(7)(a) should be used to define permanence for the purposes of the descriptors in items 1 and 2 of Table 3 (and indeed item A1, but that was not a part of this case), we were not satisfied that it should, at least on an absolute basis. That is because the descriptors for items A1, 1 and 2 are written in a different way to those in items 3, 4 5 and 6. In items 3, 4, 5 and 6 the reference is to a mental disorder with a functional limitation that is tied to a specified duration. Therefore, it can be seen (as set out in the case of PQ (see paragraph 18 above) that the duration is relevant to the functional limitation or restriction.
49. In items A1, 1 and 2, the word "permanent" is directly before the word "disorder". There is then a specific definition of functional limitation or restriction ("very severe", "severe" and "moderate") to be applied and defined in the footnotes. As such, an ordinary reading would suggest that the mental disorder, rather than the functional limitation or restriction, must be permanent.
50. In addition, there is use of the phrase "permanent significant functional limitation or restriction" in other tables (for example Table 8, item 1). This suggests that where government intended the functional limitation or restriction to be permanent, it said so and provided the legal definition to be applied (in Article 5(7)(a)).
51. However, we do think that Article 5(7)(a) provides a useful guide to the approach to permanence in the 2011 Order in respect of Table 3.
52. The Oxford English Dictionary defines 'permanent' as follows: "Continuing or designed to continue or last indefinitely without change; abiding, enduring, lasting; persistent. Opposed to temporary."
53. In our view, it is not as clear cut as entirely relying on either Article 5(7)(a) or a straightforward dictionary definition of the word permanent in the context of items A1, 1 and 2 in Table 3. Cases where such an award is possible are, by definition, likely to be medically complicated. Applying only a dictionary definition is too simplistic - mental disorders commonly change as people respond to treatment and medication. It stands to reason that if there has not been appropriate clinical management of the mental disorder, maximum medical improvement has been reached, and that common treatment options are available but have not been undertaken, then those are relevant factors in deciding if a mental disorder is permanent or not.
54. Mr H has not yet carried out a course of EMDR treatment. Dr Cahill's evidence did not rule out future therapy. He said that significant preparatory work will be needed, and that a longer than normal course of treatment of EMDR is likely to be required. Mr H is clearly capable of developing a trusting relationship with doctors. He has done so with his GP and, in our view, with Dr Cahill. We appreciate that Mr H does not believe he will be able to undertake trauma related therapy. However, in our view, as we have highlighted, the evidence is that if he has a relationship with a doctor that he trusts then there may be an improvement in his condition and the impact it has on his life.
55. We therefore do not find that Mr H's mental disorder is permanent because we are not satisfied that it will last indefinitely without change (to use the dictionary definition) or that he has is at a point where it can be said that he has reached maximum medical improvement. However, we do find that - at the date of the decision - it was expected continue for at least five years and has caused functional limitation or restriction during that time. Mr H has been unable to work in paid employment, is unable to leave the house, takes medication regularly and is unable to fully participate in family life. He is reliant on his partner to support him, including enabling him to attend medical appointments.
20. On 21 June 2023 Judge Monk, the Chamber President, refused the Appellant's application for permission to appeal to the Upper Tribunal. She gave the following reasons:
4. In detailed grounds of appeal, the appellant only really seeks to challenge one aspect of the Tribunal's conclusion that the appellant's mental health disorder was permanent. That is around whether he could be said to have reached a state of maximum medical improvement if he had not exhausted certain possible therapy options.
5. The application for permission to appeal suggests that the Tribunal fell into error by an over reliance on a comment in the report from a Dr Cahill who stated that [the Appellant] had not received 'any formal psychological treatment'. As Dr Cahill had recommended EMDR or Trauma focussed CBT [64r of the bundle] and [the Appellant] accepted he had not undertaken any EMDR the Tribunal concluded he could not be said to have reached maximum medical improvement.
6. The appellant's [representative] rightly points out that, since Dr Cahill's report was written in 2017, the Tribunal had evidence from [the Appellant] that he had undergone some CBT which had ended in February 2020. It is suggested that the Tribunal have disregarded the CBT and have concluded, without adequate reasoning, that the CBT was not 'formal psychological treatment'. It is clear from the Tribunal's findings of facts [paragraphs 35 and 36] that they concluded that CBT could not be the formal psychological treatment envisaged as needed by Dr Cahill with good reason. Dr Cahill said in his report at paragraph 6 that [the Appellant] 'needs a lot of 'psychological preparation' before embarking on a structured form of therapy'. [The Appellant's] evidence to the Tribunal was that he had had 12 sessions of CBT, mostly online, and they had not resulted in an improvement. His own witness statement from February 2022 described the sessions as not being much therapy but giving him 'very low-level coping tools' and he talked about having asked for a re-referral for further sessions.
7. On the basis of that evidence the Tribunal's conclusion that the appellant had not received any formal psychological treatment cannot be said to be an error of law or procedurally wrong. The Tribunal clearly considered carefully whether [the Appellant's] condition, as at 2020, satisfied a wide definition of permanence based on all the evidence before them. They explained clearly and cogently why they could not conclude that [the Appellant's] PTSD was permanent. That was because he had not exhausted recommended course of treatment by Dr Cahill of either more structured CBT or EMDR. They concluded therefore that he had not completed all recommended treatment and it could not be said that he had reached a steady state of maximum medical improvement. In the circumstances the panel's decision that he had not achieved maximum medical improvement nor would the condition last indefinitely without change could not be said to be irrational or perverse.
8. The test for permanence for mental health conditions is a complex one, as the panel acknowledged. They took a broad approach to the definition of permanence and it was open to them on the evidence before them to conclude as they did that the condition had not reached a state of permanence and determine that therefore Level 10 was the most appropriate descriptor. Their conclusions are reasoned and based on the evidence before them; I do not therefore consider that there is any arguable error of law.
21. The application for permission to appeal was then renewed before the Upper Tribunal.
The Upper Tribunal's grant of permission to appeal
22. On 23 August 2023 I gave the Appellant permission to appeal, making the following observations:
I am persuaded on balance that the application for permission to appeal is arguable. I am not at this stage persuaded that the appeal is more likely than not to succeed, but that is not the appropriate test at the permission stage. I note that there is no challenge by the Appellant to the FTT's approach to the meaning of the term "permanent". The challenge, as I understand it, is more to the way in which the FTT applied that test to the evidence. There is, therefore, the risk that this appeal is really an attempt to re-argue the case on its factual merits but dressed up as an appeal on a point of law. If so, then the appeal will not succeed, not least for the reasons identified by Judge Monk CP when she refused permission to appeal on behalf of the FTT. In granting permission to appeal I also bear in mind that the determination of such PTSD cases poses several definitional problems for FTT panels in applying the tariff.
The test for permanence
23. Both counsel confirmed in the course of the Upper Tribunal proceedings that neither party sought to challenge the Tribunal's approach to the meaning of "permanent" for the purpose of Table 3. This agreed approach is relevant to understanding the context of the appeal. The Tribunal declined to adopt a prescriptive definition of the term "permanent" (as in "permanent mental disorder", in effect the gateway to an award at levels 4, 6 or 8, namely Items A1, 1 and 2) but expressed the following views.
24. First, the dictionary definition of "permanent" implied something that lasted indefinitely without change, whereas mental disorders "commonly change as people respond to treatment and medication". The dictionary definition, applied in isolation, was therefore too "simplistic" (paragraph 54).
25. Second, the definition of "permanent" in Article 5(7)(a) of the 2011 Order was not directly applicable, because that definition governed the meaning of "permanent functional limitation or restriction" in Table 3 and not the permanence or otherwise of the mental disorder itself (paragraph 50).
26. Third, however, the Tribunal considered that the Article 5(7)(a) definition provided a "useful guide", noting that "It stands to reason that if there has not been appropriate clinical management of the mental disorder, maximum medical improvement has [not] been reached, and that common treatment options are available but have not been undertaken, then those are relevant factors in deciding if a mental disorder is permanent or not" (paragraph 54).
27. It followed that the Tribunal considered that when deciding whether a mental disorder was "permanent", two factors would be relevant. The first was whether there has been "appropriate clinical management". The second was whether "common treatment options are available but have not been undertaken".
The Appellant's grounds of appeal
28. Ms Skander, on behalf of the Appellant, submitted that the Tribunal's decision discloses four manifest errors of law.
29. The first is that the Tribunal allegedly made a material mistake as to fact. In particular, Ms Skander alighted on the distinction between Dr Cahill's report -which had recorded that the Appellant had "not received any formal psychological treatment to date" (emphasis added) - and the Tribunal's decision which, having found that the Appellant had "not received any formal psychological treatment" (without the qualifier "to date"), went on to find as a fact that he had undergone a course of CBT. Ms Skander submitted that the Tribunal had misunderstood Dr Cahill's evidence - in doing so, it had erroneously adopted evidence that was correct when it had been stated in 2017 as still being correct six years later in 2023.
30. The second is a submission, in the alternative, that if there was no mistake then there must have been a procedural irregularity. Ms Skander contended that if the Tribunal was using "formal psychological treatment" in a technical sense, for example, as excluding CBT, then as a matter of fairness the point should have been put to the Appellant for comment (who may have wished to adduce further evidence by way of reply). In this context counsel prayed in aid the principle in Butterfield and Creasy v Secretary of State for Defence [2002] EWHC 2247 (Admin).
31. The third is that the reasons for the Tribunal's decision are said to be inadequate, applying the well-known test adumbrated in South Bucks District Council v Porter (No.2) [2004] UKHL 33. Ms Skander's submission was that the question of the permanence of the Appellant's mental disorder was central to the appeal before the Tribunal, and as such the Appellant needed to understand how the panel had resolved the question of treatment. As it was, she argued, the Appellant and his advisers were at a loss to understand what was meant by the expression "formal psychological treatment" as deployed by the Tribunal.
32. The fourth avers that the Tribunal gave weight to immaterial matters. In particular, it is submitted that the Tribunal "rearranged the sentences and words of Dr Cahill's report, thereby changing the meaning of what was conveyed in his evidence and in doing so gave weight to matters that were immaterial" (skeleton argument at paragraph 38). As such, Ms Skander submitted the present case was effectively on all fours with the Upper Tribunal's decision in LM v Secretary of State for Defence (CAF/2760/2019), where it was found that the FTT had misunderstood the expert medical evidence.
The Respondent's response
33. Mr Hays, for the Secretary of State, argued that the appeal invited consideration of an immaterial question, namely whether certain therapy that the Appellant had undergone counted as "formal psychological treatment". His core submission was that the Tribunal's decision did not depend on the answer to that question at all. Rather, as he put it in his skeleton argument (at paragraph 16):
The FTT's central reasoning had nothing to do with whether or not CBT is a "formal" type of psychological treatment. In paragraph 55 of its judgment, the FTT identified the treatment which remained for the Appellant to complete, as recommended by Dr Cahill, and that if the right doctor could be found there may be an improvement in the Appellant's condition. It was that consideration which led the FTT to conclude (Judgment, 56) that the condition was not permanent. None of this reasoning is affected by the question of whether or not CBT is properly to be defined as "formal psychological treatment".
34. The Respondent therefore argues that the Appellant's focus on the expression "formal psychological treatment" is entirely misplaced. It is immaterial because the Tribunal's conclusion was based on the psychological therapy that remained to be done, and did not depend on the adjective used to describe the therapy or other treatment that the Appellant had already completed.
Analysis
Introduction
35. The Appellant's skeleton argument asserted that "the grounds of appeal go to the FtT finding of fact that at the time of the hearing '[Mr H] has not received any formal psychological treatment' at §35" (paragraph 7). In her oral submissions Ms Skander sought to argue that the materiality of this finding of fact was in effect self-evident, contending that there were two ways of viewing its relevance. The first was by way of what she described as a broad analysis, namely that a finding of fact that there had been no formal psychological treatment was plainly material to the question of permanency. The second was what she termed as a more forensic approach. In particular, she submitted that one cannot safely answer the question as to what remans to be done and whether it was clinically indicated without safe findings of fact as to what treatment had already been undertaken.
36. However, I am satisfied that the Tribunal's finding that the Appellant had not received any formal psychological treatment was, as Mr Hays submitted, immaterial to the outcome of the appeal. The Tribunal applied the correct and agreed legal test for permanence, which took into account both the dictionary definition and the Article 5(7)(a) definition. In applying that more holistic test, the Tribunal was plainly aware both that Dr Cahill's report dated from 2017 and that its own task was to consider the Appellant's current state (namely, as at the date of the decision under appeal). At paragraphs 35 and 36 of its decision, the Tribunal had summarised the treatment that the Appellant had already received. There is, moreover, no suggestion that in doing so the Tribunal had overlooked any relevant treatment in its summary. In its conclusions, at paragraph 55, the Tribunal focussed on EMDR treatment as therapy which had been recommended as being of potential benefit to the Appellant but which had not as yet been accessed. Applying the appropriate legal test, the Tribunal accordingly found that the Appellant's mental disorder was not permanent. In reaching that conclusion the Tribunal's reasons had properly considered the treatment that had already been undertaken. The label or adjective used to describe that previous treatment was in no way determinative of the appeal. Indeed, the Appellant might have had the treatment summarised at paragraphs 35 and 36, or might (hypothetically) have had no relevant treatment at all, but either way the findings at paragraphs 55 and 56 explained adequately, and independently, why the Tribunal concluded that his mental disorder was not "permanent" such that he might qualify for a higher level Table 3 descriptor in respect of his PTSD.
37. Furthermore, and in any event, the Appellant's four more specific grounds of appeal are not persuasive for the following reasons.
Ground 1
38. The first ground of appeal asserts that paragraph 35 of the Tribunal's reasons discloses a material mistake of fact. The Appellant's submission is that there is a flat contradiction between the Tribunal's findings respectively that the Appellant (a) "has not received any formal psychological treatment" (paragraph 35) and yet (b) "has completed 12 sessions of Cognitive Behavioural Therapy ['CBT']" (paragraph 36).
39. This contradiction is at best superficially apparent and is certainly not for real. I am entirely satisfied that the expression "formal psychological treatment" is not being used in any highly technical sense. This much is clear both from the ordinary meaning of the words and from the context of Dr Cahill's report.
40. So far as the ordinary meaning of the words is concerned, there has been no suggestion that the substantive phrase "psychological treatment" requires unpacking or further elucidation. Rather, it is the qualifying adjective "formal" which Ms Skander takes issue with. The dictionary definition of "formal" includes "officially sanctioned or recognised" and "done in accordance with convention". So, on the face of it at least, "formal psychological treatment" simply means no more and no less than e.g. "relevant approved psychological treatment".
41. As regards the context of Dr Cahill's report, and on a fair reading of the passage discussing the Appellant's treatment (see paragraph 11 above), it is tolerably clear that Dr Cahill was referring to PTSD-specific treatment. In the first two paragraphs of that passage the consultant summarised the Appellant's limited treatment to date (including assessments and pharmacological intervention). This stands in stark contrast to what Dr Cahill describes (in the third paragraph), namely that " The treatment requirement for PTSD is trauma-focussed therapy in the form of either Trauma Focussed Cognitive Behavioural Therapy or Eye-Movement Desensitisation and Reprocessing (EMDR)" (emphasis as in the original). Dr Cahill then referred to the preparatory psychological work that would be needed before engaging in such specialist treatment.
42. It is plain from its reasons that the Tribunal was adopting the same approach as Dr Cahill. As such it was drawing a distinction between non-formal types of psychological treatment (e.g. psychological preparation, help with coping strategies and other limited interventions) and formal treatment (being the trauma-focussed CBT or EMDR highlighted by Dr Cahill. Given that broad categorisation, and given the evidence the FTT received as to the low-level nature of the CBT sessions attended by the Appellant, it is both reasonable and entirely understandable that the Tribunal did not regard the CBT sessions that the Appellant completed as meriting the description of being "formal psychological treatment". In a nutshell, it was not trauma-focussed therapy. At best it could be described as a form of psychological preparation for such advanced therapy.
43. I should add that there was some debate at the Upper Tribunal oral hearing as to whether it was appropriate to have regard to the NICE guidelines on treatment for PTSD. I simply observe that in the event I have not needed to consider those guidelines. I am satisfied that the Tribunal's findings were open to the panel on the basis of Dr Cahill's report and the other evidence it received.
Ground 2
44. This second ground of appeal posits that the Tribunal's failure to invite submissions from the Appellant on whether the CBT sessions he had undertaken amounted to "formal psychological treatment" constituted procedural unfairness. However, this assumes that the phrase in question carries some technical meaning that needed to be explored. For the reasons discussed above, that is a false premise. In addition, the appropriate adjective to be attributed to the CBT sessions was immaterial, given that the Tribunal's primary focus had to be on what type(s) of future treatment remained relevant to assessing the question of permanence.
Ground 3
45. The reasons challenge fares no better. On one reading it must surely stand or fall with the first two grounds of appeal. Insofar as it is a freestanding ground of appeal, t he relevant standard for adequacy of reasons is not in dispute and was helpfully described by Upper Tribunal Judge Poole QC (as she then was) in DS v SSWP (ESA) [2019] UKUT 347 (AAC). There, she said that the question is whether the first instance tribunal "deal with the substantial questions in an intelligible way, leaving the informed reader in no real and substantial doubt as to the reasons for the decision and what material considerations were taken into account" (at paragraph [9]). On any fair reading the Tribunal's reasons in this case comfortably meet that threshold. In short, and in summary, the Tribunal found that the previous treatment undergone by the Appellant was insufficient to show permanence. Instead, the Tribunal concluded there were further treatment options reasonably open to the Appellant before it could be said that he had achieved a state of "maximum medical improvement" as envisaged by the test for permanence.
Ground 4
46. The final ground of appeal concerns the way in which parts of Dr Cahill's report were taken in a different order by the Tribunal and thereby (so it is said) changing its meaning. I reject this submission. The key finding in Dr Cahill's report was that the Appellant's prognosis was "poor". The Tribunal was well aware of that assessment and indeed quoted directly from it. As such, the present case is far removed from the circumstances obtaining in LM v Secretary of State for Defence. That was a case in which the first instance tribunal misunderstood the expert medical evidence whereas in the present case the Tribunal both understood and reiterated the central point being made by the expert witness. It is plain from the Tribunal's judgment that it was well aware of the difficulties faced by the Appellant. However, the fact that the prognosis was poor (both when Dr Cahill was reporting in 2017 and indeed when the Tribunal was sitting in 2023) did not necessarily mean that the Appellant's condition was "permanent" as that term was properly understood.
Conclusion
47. I therefore conclude that the decision of the First-tier Tribunal does not involve any material error of law. I therefore dismiss the appeal (Tribunals, Courts and Enforcement Act 2007, section 11).
Nicholas Wikeley
Judge of the Upper Tribunal
Authorised for issue on 1 July 2024
NC (dec'd) by JC v Secretary of State for Defence (Armed Forces Compensation Scheme): [2024] UKUT 170 (AAC)
1 IN THE UPPER TRIBUNAL Appeal No. UA-2021-000742-AFCS ADMINISTRATIVE APPEALS CHAMBER [2024] UKUT 170 (AAC) On appeal from the First-tier Tribunal (WPAFCC) Between: N.C. (deceased) Appellant by J.C. Executrix - v – Secretary of State for Defence Respondent Before: Upper Tribunal Judge Wikeley Hearing date: 25 April 2024 Decision date: 6 June 2024 Representation: Appellant: Mr Michael Rawlinson KC and Ms Jasmine Skander of Counsel instructed by Irwin Mitchell LLP Respondent: Mr Will Hays of Counsel, instructed by the Government Legal Department DECISION The decision of the Upper Tribunal is to dismiss the Appellant’s appeal. The decision of the First-tier Tribunal issued on 4 January 2021, following the hearing on 21 December 2020 under file number AFCS/00654/2020, was not made in error of law (section 11 of the Tribunals, Courts and Enforcement Act 2007). N.C. (dec’d) by J.C. -v- SSD (AFCS) Case no: UA-2021-000742-AFCS [2024] UKUT 170 (AAC) 2 REASONS FOR DECISION Introduction 1. There are two principal statutory schemes providing financial compensation for armed forces personnel who suffer injury or death caused by service. The war pensions scheme applies to disablement or death which is due to service before 6 April 2005. The Armed Forces Compensation Scheme (AFCS) covers injury or death due to service on or after 6 April 2005. This appeal concerns the latter scheme. 2. The Appellant, the late Colonel C, brought a claim for compensation under the AFCS (he was still in service, thus precluding a claim under the war pensions scheme). His argument, in essence, was that the condition of malignant melanoma on the left shoulder and right calf, which resulted in a fatal cancer, was predominantly caused by service after 6 April 2005. The Secretary of State for Defence, acting through the agency of Veterans UK, refused that AFCS claim. The First-tier Tribunal (the FTT) in the War Pensions and Armed Forces Compensation Chamber (WPAFCC) dismissed the Appellant’s subsequent appeal. For the reasons that follow I dismiss the further appeal to the Upper Tribunal. 3. I held a remote oral hearing of this Upper Tribunal appeal on 25 April 2024. The Appellant was represented by Mr M Rawlinson KC and Ms J Skander of Counsel, instructed by Irwin Mitchell LLP, while the Respondent was represented by Mr W Hays of Counsel, instructed by the Government Legal Department. I am indebted to all three counsel for their various written and oral submissions in the course of these proceedings. 4. Rather late in the day, it has become apparent that the Upper Tribunal office had first registered this appeal under the incorrect file reference UA-2021-000742- WP. This was on the mistaken assumption that the case was brought under the war pensions scheme (hence the ‘WP’ suffix). The file reference has now been corrected with the change of the appropriate suffix to UA-2021-000742-AFCS. Nothing of any substance turns on this administrative misclassification. 5. For convenience the following abbreviations are used in this decision: ABBREVIATIONS AFCS Armed Forces Compensation Scheme AK Actinic keratosis BCC Basal cell carcinoma CMM Cutaneous malignant melanoma FOB Forward Operating Base FTT (or F-tT) First-tier Tribunal IMEG Independent Medical Expert Group JM JM v Secretary of State for Defence (AFCS) [2015] UKUT 332 (AAC); [2016] AACR 3 MOB Main Operating Base N.C. (dec’d) by J.C. -v- SSD (AFCS) Case no: UA-2021-000742-AFCS [2024] UKUT 170 (AAC) 3 MoD Ministry of Defence NMSC Non-melanoma skin cancer SCC Squamous cell carcinoma TFH Task Force Helmand UVR Ultraviolet radiation WP War Pensions WPAFCC War Pensions and Armed Forces Compensation Chamber A very brief outline of the factual background to the appeal 6. The Appellant had two periods of service in the armed forces. He first joined the regular army for officer training in 1988, but left in 1997 to pursue a civilian career. He then joined the reserve forces in 2002 and rejoined the regular army again in 2004. 7. The Appellant’s army service naturally took him abroad on multiple occasions, sometimes for prolonged periods, during both the pre-April 2005 and post-April 2005 periods. During nearly all these deployments he experienced various degrees of exposure to the sun and suffered sunburn. Before April 2005 he served in Canada (1988 and 1991), Bosnia (1994), the USA (1996) and Afghanistan (2004/05). After April 2005 he was posted to Kenya (2006), Oman (2007/08) and Afghanistan again (2009, 2010 and 2017/18). 8. Colonel C’s case before the FTT was that his melanoma had been predominantly caused by exposure to sunlight during his AFCS service, i.e. his service after 6 April 2005. Sadly, he died of the resulting cancer on 8 March 2021. The Appellant’s AFCS claim 9. On 14 February 2019 the Appellant made a claim under the AFCS in respect of melanoma on his left shoulder and right calf, giving the date of onset as June 2018. In the box on the claim form marked ‘Extra Information’ he made the following points: Throughout my service I have regularly served in environments exposed to intense sunlight for prolonged periods… Repeated lengthy exposure to intense sunlight and hot environments throughout my career, including five tours of Afghanistan, have been major causative factors in the disease. I have always taken precautions against sunburn, as advised, but it is the long periods spent in these environments with all of the variables of exposure to sunshine and other factors that have led to this disease. I do not take beach holidays and do not sunbathe, and use sunscreen during summer months – therefore the greatest exposure I have had to UV light and causative factors for malignant melanoma has been whilst I have been on duty. The Secretary of State’s decision on the Appellant’s AFCS claim 10. On 9 April 2019 Veterans UK wrote to the Appellant to notify him of their decision that “you are not entitled to compensation under the Scheme as your injury/illness N.C. (dec’d) by J.C. -v- SSD (AFCS) Case no: UA-2021-000742-AFCS [2024] UKUT 170 (AAC) 4 is not due to Service”. The very brief reason for the rejection of the claim, as recorded on the contemporaneous lay certificate, was as follows: [Col C] has been diagnosed with melanoma on his upper back and right calf. Although he may have been exposed to increased UV radiation through service, the areas affected would not have been exposed during military service etc. It is noted that he had excessive sun exposure as a child. As such this claim falls for rejection. 11. It is perhaps only right at this stage to note that the FTT subsequently discounted the effects of UVR exposure as a child as a potentially causative factor. The Appellant’s appeal to the First-tier Tribunal 12. On 27 March 2020 the Appellant lodged an appeal, arguing that “in the view of specialists in dermatology …. my service has in fact contributed to my illness. My consultant notes that the fast growing lesion on my shoulder developed over the course of my operational tour in 17/18 when I was exposed to intense sunlight … I therefore appeal this decision on the grounds that medical evidence supports my case that my illness was wholly or partly caused by my service and I restate my claim.” The Appellant included, for example, a letter from his consultant dermatologist dated 20 February 2020, which included the following passage: He has informed me that that there has been a question as to the role of his military service in the aetiology of his skin cancer. I have explained that it is very well established that ultraviolet light exposure is one of the major risk factors for the development of melanoma. He has been stationed overseas for five tours in Afghanistan and Iraq between 2004 and 2017, all of these postings were between 6-12 months. Although a definitive causal link cannot be proven, in my view it is entirely plausible that this extensive sunlight exposure has contributed to the development of his melanoma. 13. Following the Appellant’s appeal, the adverse decision was confirmed on reconsideration in a decision by Veterans UK dated 18 August 2020. In a supplementary comment, following the Appellant’s submission of his consultant reports, the Secretary of State noted that “it is not in dispute that [Col C] has not had extensive exposure during his service … what is up for determination is whether his service after April 2005 is the predominant cause of his condition”. In that context the Secretary of State noted the following evidence from the Appellant’s personal statement: • BATUS (Canada) 10 weeks in summer 1988 “was over exposed to the sun and did have reddening of my skin, arms, legs and face.” • BATUS (Canada) summer 1991 “again ended up with sun exposure, with reddening to my skin.” • Bosnia 1994 “The temperatures here were known to reach in excess of 30+ degrees and from August to October 1994 the conditions were hot and sunny, and we operated extensively outdoors.” • South Carolina 1996 “We spent an average of 12-14 hours each day in the sun … We lived on the beach during this exercise which lasted about 10 weeks. The temperatures were in excess of 33+ degrees. Many of the unit suffered sunburn whilst on this tour, including myself.” N.C. (dec’d) by J.C. -v- SSD (AFCS) Case no: UA-2021-000742-AFCS [2024] UKUT 170 (AAC) 5 • Afghanistan October 2004-April 2005 “Again during this tour a significant number of soldiers suffered from sunburn, me included.” 14. The lay certificate accordingly asked the FTT to decide “if the claimed condition melanoma on left shoulder and right calf is predominantly caused by [AFCS] service in accordance with the rules of the Order”. 15. Shortly before the hearing, the Appellant’s solicitors filed further evidence in the form of letters from the Appellant’s consultant dermatologist and consultant oncologist. Copies of the solicitors’ instructing letters requesting these reports were not provided to the FTT, but from the way the solicitors’ questions were framed (which were cited in the consultants’ replies) it does not appear that the consultants were asked to distinguish between the respective causative effects of service before and after April 2005. 16. The consultant dermatologist’s letter (dated 27 October 2020) included the following responses: It is my opinion that, on the balance of probabilities, the sun exposure that Col C received whilst in the military was responsible for the development of his melanoma … Having read Col C’s witness statement it seems to me that the extent of sun exposure that he sustained whilst a child was insignificant compared to the prolonged episodes of intense sun exposure with burning that occurred whilst in military service. In view of this it is my opinion that, on the balance of probabilities, the sun exposure whilst in the military is the predominant cause of the melanoma from which he now suffers, 17. The consultant oncologist’s letter (dated 28 October 2020) was in similar terms: Reading the account of your client’s history, suggesting multiple episodes of sun burn while on deployment, then my view would be that on balance of probabilities it is likely that the episodes of sun burn represented the UV exposure that led to his subsequently developing melanoma … Reading the account of your client’s history of sun exposure in childhood, compared with the multiple episodes of sun burn he experienced whilst on deployment, then my view is that on a balance of probabilities it is the periodic episodes of high intensity sun exposure and subsequent sunburn in adult life that was the predominant cause of his condition. 18. It bears repeating that neither of the consultants’ reports drew a distinction between service before and after April 2005. 19. In terms of medical evidence the Secretary of State relied (in part at least) on the December 2017 report of the Independent Medical Expert Group (IMEG). Topic 7 of that report dealt with UV light and skin cancers and made the following ‘key points’: 1. For a disorder to be a Recognised Disease in the AFCS, we look for evidence that service is consistently associated with an increase in its frequency and whether there are circumstances where the frequency is more than doubled, making it more likely than not in the individual case that the disease was attributable to a cause in service. 2. Skin cancers, the most common cancers in white skinned populations are usually divided into nonmelanoma skin cancers (NMSC) and cutaneous N.C. (dec’d) by J.C. -v- SSD (AFCS) Case no: UA-2021-000742-AFCS [2024] UKUT 170 (AAC) 6 malignant melanoma (CMM). The most important types of NMSC are basal cell carcinoma (BCC) and squamous cell carcinoma (SCC). NMSC Basal cell carcinoma (BCC) is commonly called rodent ulcer. The mortality rate is low and they rarely metastasize but they may invade surrounding tissues including cartilage and bone causing significant destruction. Squamous cell carcinomas (SCC) may arise in scar tissue but the majority arise on sun damaged exposed skin, and most commonly in actinic keratosis (AK). Cutaneous malignant melanoma. Cutaneous malignant melanoma (CMM) accounts for less than 5% total skin cancers, although the incidence is rising in all parts of the world for which data are available and it leads to 75% of all deaths from skin cancers. 3. By April 2005 public health education on the dangers of sun exposure were well developed including in the UK amongst the military medical services, the chain of command and Service personnel. The avoidance of direct UVR exposure and sunburn, use of suitable protective clothing, sunglasses, and sunscreens, were standard practice. 4. While total cumulative lifetime sun exposure is casually associated with AK and SCC, the evidence is that BCCs are more related to short intermittent burning episodes. Sun exposure plays a primary role and supporting role in most cases of CMM with the pattern of exposure in the sub-types varying. The risk for CMM in older people, developing over many years and of generally lower mortality is as for SCC, i.e. chronic long term excess UV exposure. Superficial spreading melanomas, the most common type in working age adults are related to short sharp episodes of burning exposure especially in youth and adolescence. 5. We conclude that in general none of these circumstances is likely to be met at this date due to AFCS service and so most cases of NMSC and CMM claimed under AFCS will be for rejection. However each case should be considered on its facts. 20. I recognise, as Mr Rawlinson submitted, that the findings of the IMEG report are based on an overall epidemiological assessment and are subject to the important proviso that, as the final ‘key point’ stipulates at paragraph (5), “each case should be considered on its facts”. The decision of the First-tier Tribunal 21. The First-tier Tribunal held an initial hearing of the appeal on 18 November 2020. That hearing had to be adjourned for reasons which need not now concern us. It was followed by a further hearing on 21 December 2020. The Appellant’s solicitors helpfully prepared a full printed transcript of the latter hearing based on the digital record of proceedings. Although technically an unofficial transcript – it has not been approved by the FTT panel and contains some gaps where comments were not audible – there is no suggestion that it is other than the ‘best available evidence’ of what took place. 22. The hearing on 21 December 2020 was not just a hearing of the Appellant’s substantive appeal. Rather, it was also a hearing of the Appellant’s application that the FTT recuse itself, or more particularly that the FTT Judge recuse herself, N.C. (dec’d) by J.C. -v- SSD (AFCS) Case no: UA-2021-000742-AFCS [2024] UKUT 170 (AAC) 7 in the light of certain exchanges that had taken place at the initial hearing on 18 November 2020. The FTT dismissed the recusal application in a detailed oral ruling delivered by the FTT Judge on 21 December 2020. The FTT further expanded on these detailed reasons in a statement of reasons for the decision not to recuse that was signed off on 29 September 2021 and issued on 7 October 2021. In the meantime, on 4 January 2021, the FTT promulgated its unanimous decision dismissing the Appellant’s substantive appeal. This was followed by a full statement of reasons on 4 March 2021. 23. At this stage it may be helpful to sketch out the structure of the FTT’s statement of reasons. The first three paragraphs outlined the background. Paragraphs 4 to 9 summarised the AFCS legislative framework and (in some detail) the decision of the three-judge panel of the Upper Tribunal in JM v Secretary of State for Defence (AFCS) [2015] UKUT 332 (AAC); [2016] AACR 3. Paragraphs 10, 11 and 12 dealt with (a) the IMEG report of December 2017, (b) the Secretary of State’s Synopses of Causation (which were essentially the MoD’s literaturereview based summaries of the present state of medical knowledge for various conditions) and (c) the issue of heat exposure versus sun exposure respectively. 24. The FTT then addressed the evidence relating to the Appellant’s sun exposure both before and after 2005 in some detail in paragraphs 13 and 14: 13 The evidence relating to the Appellant’s sun exposure Pre 2005 13.1 Whilst a child, Mr C’s parents were posted by the RAF to Melbourne, Australia for 2 years. During that time Mr C was at boarding school in England and travelled to Australia for school holidays. He has very clear memories of the recognised need to use copious sun protection from the dangerous Australian sun. 13.2 In 1988 Mr C joined the regular Army for Officer training, and on commissioning, served in the Life Guards. In 1988, as an officer cadet aged 20, he deployed to BATUS in Canada on a 10 week training exercise. His statement (P 58 of the Response) records that the temperatures were over 30 deg, he was outside a lot of the time and got ‘over exposed to the sun and did have reddening of my skin, arms, legs and face’. In his oral evidence, he diluted this statement to some extent, explaining that he spent a lot of the time inside armoured vehicles so sun exposure was episodic. Nevertheless there is a clear history of sunburn and as a very junior officer, he would have had little control over his role. 13.3 Again, after commissioning and as a Lt. he returned to BATUS in the summer of 1991 as part of a similar exercise and in similar conditions. He again recalls sunburn. 13.4 In 1994 Mr C was deployed to Bosnia for 7 months, again in high temperatures (although reducing from November onwards), in sunny weather. Although operating extensively outdoors, he told us that again he spent a lot of the time in armoured vehicles. 13.5 In 1996 Mr C deployed to South Carolina USA on exercise with the US military for 10 weeks. He states, at Para 15 of his statement that he spent on average 12-14 hours a day in the sun, on the beach and the sea, and N.C. (dec’d) by J.C. -v- SSD (AFCS) Case no: UA-2021-000742-AFCS [2024] UKUT 170 (AAC) 8 suffered sunburn. In his oral evidence he explained that they were living tactically outside most of the time and recalled being sunburned. 13.6 In October 1997 Mr C left the regular army, rejoining in November 2003. In the intervening period he pursued a career in publishing. He took holidays in the UK, particularly hill walking and cycling, and joined the Army Reserve in 2002. He confirmed that even when outside in the UK, he used sunscreen and carried spare bottles with him. 13.6 On re-joining the regular Army in August 2004 as a captain aged 36, he deployed to Afghanistan from October 2004 to April 2005 in a role supporting civil aid work. Although much of the time was over the Afghan winter, he was also exposed to the sun and suffered sunburn: in his statement, he explains ‘Again during this tour a significant number of soldiers suffered from sunburn, me included’. 14. Post April 2005 14.1 In February 2006 he took part in Exercise GRAND PRIX in one of the usual training areas in Kenya, for 10 weeks. This consists mainly of open grassland peppered with small trees, and Mr C explained that they spent a lot of the time out on the ground in a light infantry role, but lay down in the shade during the midday sun. 14.2 From October 2007 to January 2008 Mr C was posted to Oman as the Army Liaison Officer with the RAF. His primary role was flying with the aircraft to co-ordinate communication with troops on the ground which took up 2-3 days a week. The remainder of the time he was generally helping out around the base as required. He recalls suffering from sunburn from working outside and we accept that in this non-operational theatre he would have had the flexibility to wear service issued shorts and T-shirts or long sleeved shirts rolled up to the elbow. However, there would have been no imperative to work outside during the heat of the day, and there was ample available shelter from the sun. 14.3 From March to November 2009 Mr C deployed to Afghanistan as a Major working in the Planning Cell at Task Force Helmand (TFH) in Lashkar Gah. This role in planning future operations requires considerable coordination with other co-located disciplines including Intelligence, Personnel, current operations, Logistics communications, etc to pull the plan together. His role was based in the Main Operating Base (MOB), a large community with a mix of former Afghan buildings, rigid tents and shipping containers housing TFH personnel, a large canteen, small gym, chapel and shop, together with a helicopter landing site, all surrounded by a perimeter wall. 14.4 We accept Mr C’s evidence that as part of his role, he would travel out to the Forward Operating Bases (a smaller and more rudimentary replica of the MOB) in order to liaise with the troops on regular patrol, to better understand the situation on the ground. We also accept that on occasions, he would go out on patrol with the troops, sometimes from Patrol Bases, an even more rudimentary replica of a FOB. However, what we do not accept is, as his Counsel encouraged us to find, that he was out in the heat and N.C. (dec’d) by J.C. -v- SSD (AFCS) Case no: UA-2021-000742-AFCS [2024] UKUT 170 (AAC) 9 sun for 10-12 hours a day during his entire tour and that during this time he was wearing mainly shorts and T-shirts. 14.5 This was an exceptionally kinetic time for UK troops in Helmand with considerable casualties and deaths. It attracted significant media attention with many reports in the press and documentaries from the front line from reporters embedded with units. From our collective knowledge from such media exposure, descriptions from other appellants deployed to Afghanistan, and relevant personal experience we know that the threat was so great that troops on patrol did so in full combat dress, with body armour, and with legs and arms fully covered. We also accept that in periods of ‘downtime’ soldiers would wear their issued shorts and t-shirts, but had the flexibility to shelter in the shade and only exercise in the cooler/less sunny times of the day which would also protect from the dangers of heat exhaustion. 14.6 Mr C returned to Afghanistan from May to August 2010 in a role with Joint Force Logistics with a similar pattern of work as in the previous year. As a senior Major, he would not ordinarily be expected to routinely patrol on the ground. 14.7 His final tour of Afghanistan was from October 2017 to May 2018 based in Kabul and in the rank of Lieutenant Colonel. This winter deployment was primarily office based indoors. 25. Paragraph 15 considered in some detail the Appellant’s own medical history (which was not in dispute) while paragraph 16 reviewed the state of medical opinion on the aetiology of melanoma, including summaries of both “what we don’t know” (paragraph 16.5) and “what we do know” (paragraph 16.6). These were itemised as a series of bullet points under the respective headings: 16.5 What we don’t know • What degree of sunburn is required (e.g. from slightly pink to severe peeling/blisters) to be implicated • How protective is a ‘gentle tan’ as in careful exposure during a Mediterranean beach holiday. • Is only one exposure enough to cause a danger • What is the timeline between exposure and onset; the latency period. BCC’s are said to emerge in older age (see Para 4.7 of the UVR Synopsis), but CMM describe the ‘working age population’. We note Para 4.11 above of the UVR Synopsis which states that ‘childhood sunburns …have been linked to melanoma in later life’ implying a long latency period. • What were the degrees of Mr C’s sunburn, what areas of his body, and how often he ‘re-burned’ during his tours. 16.6 What we do know • Exposure as a child/young adult is a potent risk factor • Intermittent or short sharp episodes of burning is a significant risk factor. N.C. (dec’d) by J.C. -v- SSD (AFCS) Case no: UA-2021-000742-AFCS [2024] UKUT 170 (AAC) 10 • Mr C’s age profile is consistent with a ‘peak incidence in the fifth decade’. 26. In paragraph 17 the FTT asked whether the services were responsible for providing sunscreen (and I return to this issue later). Finally, paragraph 18 set out the FTT’s key findings while paragraph 19 provided the FTT’s core reasoning under the heading “applying the law”. These final two sections of the decision read as follows (with emphasis as in the original): 18 Our findings 18.1 Mr C suffered multiple episodes of sun exposure of short duration and unknown intensity from early adulthood until around 2017. All of this was in a military, not civilian setting. 18.2 When out on patrol in Afghanistan, Mr C would be substantially covered up and protected against the sun. Sun exposure during his other post 2005 tours would have been of shorter duration and intensity. 18.3 It was his responsibility to equip with and use sunscreen when necessary. 18.4 Mr C has had possibly 3 moles, the first being discovered in 2013 on his inner thigh. A further mole appears on his left back the following year and which he describes as having had ‘for years’. He also had a mole on his right calf. 18.5 We accept that CMM may arise on areas of skin not previously exposed to the sun. 18.6 None of his treating consultants have sought to differentiate a causal link between pre and post 2005 sun exposure. They have all used cautious language which does not meet the burden and standard of proof. 18.7 Nor do the Synopses or the IMEG report try to define a latency period which would identify which episodes of sunburn relate to the onset of any skin cancers other than vague ‘in older age’ for BCC’s and ‘in the working age population’ in the case of CMM. This is unsurprising given the current level of medical thinking. 19. Applying the Law We have largely followed the guidelines helpfully set out in JM vs SoS and quoted at Para 9 above but with the fundamental distinction that this is not only a question of whether service was the predominant cause, but whether service after 6th April 2005 was the predominant cause. We have first considered whether, without a ‘service cause’ the injury would have occurred at all. We conclude that sun exposure post April 2005 might have led to some form of melanoma, but not for many more years. The first mole was noticed by Mr C in 2013, only 8 years post the start of AFCS service, and there is no evidence at all that such a short latency period (even up to malignancy in 2018) would be causative. This is presumably why the IMEG report concludes at Para 14 that in general, none of these circumstances is likely to be met due to service after 6 April 2005 and so most cases of NMSC and CMM claimed under AFCS will be liable to rejection. However, each case will be considered on its facts. (NMSC stands N.C. (dec’d) by J.C. -v- SSD (AFCS) Case no: UA-2021-000742-AFCS [2024] UKUT 170 (AAC) 11 for non-melanoma skin cancers). Clearly as time goes on, this conclusion will carry less weight as the period between exposure and onset becomes more stretched. The second question is (applying the test in JM above) whether without the ‘service cause’ the injury would have been less than half as serious. In our view, the basic injurious process started pre 2005. It would be wholly speculative, unsupported by the medical evidence and certainly not meet the standard of proof or the predominancy test for us to conclude that the onset of Mr C’s CMM would have been less than half as serious if he had not had post 2005 sun exposure. In the specific case of CMM it is difficult to envisage what ‘half as serious’ might look like, and the Medical Opinions to which we have referred above do not even discuss such a concept. JM was a case about mental health conditions where it is somewhat easier to tease out the effects of service and non-service factors. We have also noted the IMEG conclusion that each case should be considered on its facts. Had there been no pre 2005 sun exposure at all (not only in service), and Mr C were very much younger then there might be an argument for a service cause but bearing in mind the medical evidence that UVR is not the only factor. On the evidence in this appeal, this is not such a special case. 27. The Appellant sought permission to appeal from the FTT to the Upper Tribunal in respect of both the FTT’s decision not to recuse itself and its decision on the substantive appeal. On 29 November 2021 Judge Monk, the WPAFCC Chamber President, refused permission to appeal in respect of both matters. The Upper Tribunal appeal 28. On 10 December 2021 the Appellant renewed the application for permission to appeal direct to the Upper Tribunal. The application comprised three grounds of appeal. Ground 1, in summary, was that the FTT had erred in law by utilising impermissible methods to find facts. Ground 2 was that the FTT had misdirected itself in law by failing to recuse itself. Ground 3 was that the FTT had misdirected itself in law by failing to have regard to the fact that the AFCS is a no-fault scheme and by its erroneous application of the legal test for causation. 29. On 5 June 2023 Upper Tribunal Judge Hemingway held an oral hearing of the application for permission to appeal. In a ruling dated 18 July 2023 (but not issued until 30 August 2023) Judge Hemingway gave limited permission to appeal, granting permission on Grounds 1 and 3 but refusing leave in respect of Ground 2. I therefore need say no more about the recusal ground of appeal. Conduct of the appeal was subsequently transferred to myself on the retirement of Judge Hemingway. The AFCS legislative framework 30. The relevant legislative framework is established by the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011 (SI 2011/517; ‘the 2011 Order). 31. Article 2(1) of the 2011 Order defines “injury” for all relevant purposes as including “illness”, which in turn is defined as meaning “a physical or mental disorder included either in the International Statistical Classification of Diseases and N.C. (dec’d) by J.C. -v- SSD (AFCS) Case no: UA-2021-000742-AFCS [2024] UKUT 170 (AAC) 12 Related Health Problems or in the Diagnostic and Statistical Manual of Mental Disorders”. There is accordingly no dispute but that Colonel C’s melanoma constituted an “injury”. Article 2(1) also, and unsurprisingly in both respects, defines “service” as meaning “service as a member of the forces” and defines “forces” as meaning “the armed forces and the reserve forces”. 32. Article 8 of 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. 33. Reverting for a moment to Article 2(1), this further provides that “predominant” means “more than 50%”. 34. Article 60 of the 2011 Order further provides that the default position and so the general rule – subject to an exception which does not arise in the present case – is that “the burden of proving any issue is on the claimant”. This stands in stark contrast to the position under the war pensions scheme, with its more complex but more claimant-friendly provisions on the burden of proof. Moreover, under the AFCS, as stipulated by Article 61 of the 2011 Order, “The standard of proof applicable in any decision which is required to be made under this Order is the balance of probabilities.” More generally, so far as evidence in AFCS cases is concerned, Article 62 provides as follows: Evidence 62.—(1) For the purposes of determining any issue under this Order, the Secretary of State is to produce such medical or other records of a member or a former member (whether living or deceased), as are held by the Secretary of State for Defence or the Defence Council and are relevant to the issues to be decided. (2) The Secretary of State is to consider any evidence which appears to be relevant to the issues which are to be decided and is to determine those issues on that evidence. (3) Where any decision required to be made under this Order is, or includes, a decision involving a medical issue, that decision is to be made in accordance with generally accepted medical and scientific knowledge prevailing at the time the decision is made. 35. Mr Rawlinson, for the Appellant, did not take issue with the FTT’s own exposition of these material statutory provisions. Indeed, he described the relevant passage in the FTT’s statement of reasons, which set out the key provisions of the 2011 Order, as “an impeccable statement of the law”. Rather he submitted that it was in the application of the law to the facts and in its handling of the facts that the FTT had fallen into error. He further acknowledged that he had to show an error of law in the FTT’s approach and not simply a different view as to the facts. In N.C. (dec’d) by J.C. -v- SSD (AFCS) Case no: UA-2021-000742-AFCS [2024] UKUT 170 (AAC) 13 this context it is important not to lose sight of the role of appellate review in deciding appeals from a specialist first instance jurisdiction. The role of appellate review in appeals from a specialist first instance jurisdiction 36. The jurisprudence on the standard of appellate review exercisable in an error of law jurisdiction demonstrates that any challenge which turns on a specialist tribunal’s treatment of the facts needs to be approached with a degree of circumspection. Three interlocking themes or principles are evident in this jurisprudence. The first is that appropriate recognition must be accorded to the first instance tribunal as the primary fact-finder. The second is that due note should be taken of the expertise of a specialist tribunal. The third is that the tribunal’s reasons for its fact-finding need to be at least adequate, but not necessarily optimal. 37. The significance of the first of this trilogy of principles is captured in the following passage from the judgment of Carr LJ (as she then was) in Clin v Walter Lilly & Co Ltd [2021] EWCA Civ 136, dealing with grounds of appeal that amounted to challenges to the trial judge’s findings of fact and/or evaluative findings: 83. Appellate courts have been warned repeatedly, including by recent statements at the highest level, not to interfere with findings of fact by trial judges, unless compelled to do so. This applies not only to findings of primary fact, but also to the evaluation of those facts and to inferences to be drawn from them. The reasons for this approach are many. They include: i) The expertise of a trial judge is in determining what facts are relevant to the legal issues to be decided, and what those facts are if they are disputed; ii) The trial is not a dress rehearsal. It is the first and last night of the show; iii) Duplication of the trial judge's role on appeal is a disproportionate use of the limited resources of an appellate court, and will seldom lead to a different outcome in an individual case; iv) In making his decisions the trial judge will have regard to the whole of the sea of evidence presented to him, whereas an appellate court will only be island hopping; v) The atmosphere of the courtroom cannot, in any event, be recreated by reference to documents (including transcripts of evidence); vi) Thus, even if it were possible to duplicate the role of the trial judge, it cannot in practice be done. … 85. In essence the finding of fact must be plainly wrong if it is to be overturned. A simple distillation of the circumstances in which appellate interference may be justified, so far as material for present purposes, can be set out uncontroversially as follows: i) Where the trial judge fundamentally misunderstood the issue or the evidence, plainly failed to take evidence in account, or arrived at a conclusion which the evidence could not on any view support; N.C. (dec’d) by J.C. -v- SSD (AFCS) Case no: UA-2021-000742-AFCS [2024] UKUT 170 (AAC) 14 ii) Where the finding is infected by some identifiable error, such as a material error of law; iii) Where the finding lies outside the bounds within which reasonable disagreement is possible. 86. An evaluation of the facts is often a matter of degree upon which different judges can legitimately differ. Such cases may be closely analogous to the exercise of a discretion and appellate courts should approach them in a similar way. The appeal court does not carry out a balancing task afresh but must ask whether the decision of the judge was wrong by reason of some identifiable flaw in the trial judge's treatment of the question to be decided, such as a gap in logic, a lack of consistency, or a failure to take account of some material factor, which undermines the cogency of the conclusion. 87. The degree to which appellate restraint should be exercised in an individual case may be influenced by the nature of the conclusion and the extent to which it depended upon an advantage possessed by the trial judge, whether from a thorough immersion in all angles of the case, or from first-hand experience of the testing of the evidence, or because of particular relevant specialist expertise. 38. The second principled theme, picking up on that final observation, is exemplified by Lady Hale’s judgment in Secretary of State for the Home Department v AH (Sudan) [2007] UKHL 49. Giving guidance in the context of specialist tribunals (that was an asylum case, but the same principle applies here too in an appeal from the WPAFCC), Lady Hale held as follows: This is an expert tribunal charged with administering a complex area of law in challenging circumstances. To paraphrase a view I have expressed about such expert tribunals in another context, the ordinary courts should approach appeals from them with an appropriate degree of caution; it is probable that in understanding and applying the law in their specialised field the tribunal will have got it right: see Cooke v Secretary of State for Social Security [2001] EWCA Civ 734, [2002] 3 All ER 279, para 16. They and they alone are the judges of the facts. It is not enough that their decision on those facts may seem harsh to people who have not heard and read the evidence and arguments which they have heard and read. Their decisions should be respected unless it is quite clear that they have misdirected themselves in law. Appellate courts should not rush to find such misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently. 39. The third theme concerns the standard required for the adequacy of reasons. The relevant authorities were reviewed recently by a three-judge panel of this Chamber, of which I was a member, in Information Commissioner v Experian Ltd [2024] UKUT 105 (AAC): 63. There are many appellate authorities on the adequacy of reasons in a judicial decision. In this chamber of the Upper Tribunal, the principles were summarised in, for example, Oxford Phoenix Innovation Ltd v Information Commissioner & Medicines and Healthcare Regulatory Agency [2018] UKUT 192 (AAC) at [50-54]. At its most succinct, the duty to give reasons N.C. (dec’d) by J.C. -v- SSD (AFCS) Case no: UA-2021-000742-AFCS [2024] UKUT 170 (AAC) 15 was encapsulated at [22] in Re F (Children) [2016] EWCA Civ 546 (one of the authorities cited there), as follows: ‘Essentially, the judicial task is twofold: to enable the parties to understand why they have won or lost; and to provide sufficient detail and analysis to enable an appellate court to decide whether or not the judgment is sustainable.’ 64. As is well-known, the authorities counsel judicial “restraint” when the reasons that a tribunal gives for its decision are being examined. In R (Jones) v FTT (Social Entitlement Chamber) [2013] UKSC 19 at [25] Lord Hope observed that the appellate court should not assume too readily that the tribunal below misdirected itself just because it had not fully set out every step in its reasoning. Similarly, “the concern of the court ought to be substance not semantics”: per Sir James Munby P in Re F (Children) at [23]. Lord Hope said this of an industrial tribunal’s reasoning in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11 at [59]: ‘ … It has also been recognised that a generous interpretation ought to be given to a tribunal’s reasoning. It is to be expected, of course, that the decision will set out the facts. That is the raw material on which any review of its decision must be based. But the quality which is to be expected of its reasoning is not that to be expected of a High Court judge. Its reasoning ought to be explained, but the circumstances in which a tribunal works should be respected. The reasoning ought not to be subjected to an unduly critical analysis.’ 65. The reasons of the tribunal below must be considered as a whole. Furthermore, the appellate court should not limit itself to what is explicitly shown on the face of the decision; it should also have regard to that which is implicit in the decision. R v Immigration Appeal Tribunal, ex parte Khan [1983] QB 790 (per Lord Lane CJ at page 794) was cited by Floyd LJ in UT (Sri Lanka) v SSHD [2019] EWCA Civ 1095 at [27] as explaining that the issues which a tribunal decides and the basis on which the tribunal reaches its decision may be set out directly or by inference. 66. The following was said in English v Emery Reimbold & Strick Ltd [2002] 1 WLR 2409 (a classic authority on the adequacy of reasons), on the question of the context in which apparently inadequate reasons of a trial judge are to be read: ‘26. Where permission is granted to appeal on the grounds that the judgment does not contain adequate reasons, the appellate court should first review the judgment, in the context of the material evidence and submissions at the trial, in order to determine whether, when all of these are considered, it is apparent why the judge reached the decision that he did. If satisfied that the reason is apparent and that it is a valid basis for the judgment, the appeal will be dismissed. … If despite this exercise the reason for the decision is not apparent, then the appeal court will have to decide whether itself to proceed to a rehearing or to direct a new trial. …. N.C. (dec’d) by J.C. -v- SSD (AFCS) Case no: UA-2021-000742-AFCS [2024] UKUT 170 (AAC) 16 118. ... There are two lessons to be drawn from these appeals. The first is that, while it is perfectly acceptable for reasons to be set out briefly in a judgment, it is the duty of the judge to produce a judgment that gives a clear explanation for his or her order. The second is that an unsuccessful party should not seek to upset a judgment on the ground of inadequacy of reasons unless, despite the advantage of considering the judgment with knowledge of the evidence given and submissions made at the trial, that party is unable to understand why it is that the judge has reached an adverse decision.’ 40. The Appellant’s two extant grounds of appeal in the present case need to be viewed through the prism of those three principles. Ground 1 Introduction 41. Ground 1 amounts to a composite assertion that the FTT erred in law through finding facts without the evidence enabling it to do so; through finding facts on the basis of extraneous information; and through wrongly and contrary to the principles of natural justice relying on its own knowledge for certain of its findings. 42. Judge Hemingway had this to say in respect of Ground 1 when granting permission to appeal: There are some elements of that ground, as set out in the written grounds prepared by Ms Skander, which I find unpersuasive. But the threshold for the giving of permission is not a high one and upon hearing oral argument I do think the F-tT might have erred through, at least, not giving a sufficiently clear signal as to the nature of the findings it was contemplating making on the basis of its own knowledge (see paragraph 14.5 of the written reasons issued on 4 March 2021) though it did send something of a signal (see page 50 of the transcript of the hearing of 21 December 2021); or through failing to adequately explain the basis for or the detail of the “collective knowledge” it applied to the fact-finding process. Although I have said there are aspects of what is argued in support of ground 1 which I find unpersuasive (even in the context of what is arguable) it would be a difficult and probably unhelpful exercise to sever parts of the ground. So, ground 1 may be argued in full. I would add, though, that whilst the written grounds criticised the F-tT for attaching weight to a document referred to as the “IMEG report”, Mr Rawlinson accepted it was perfectly proper for the F-tT to have regard to it. I agree. So, I would not anticipate there will be any complaint about the FtT having regard to that report in the appeal to the Upper Tribunal which will now follow. 43. Given that clear judicial steer, it was understandable that at the oral hearing of the appeal Mr Rawlinson primarily focussed his forensic fire on what he submitted was the FTT’s erroneous approach to making findings on the basis of its own knowledge and the use of its “collective knowledge” as applied to the fact-finding process. Mr Rawlinson highlighted several passages in the transcript of the FTT hearing in an attempt to make good this aspect of the first ground of appeal. In the next section I discuss the most significant of these passages. N.C. (dec’d) by J.C. -v- SSD (AFCS) Case no: UA-2021-000742-AFCS [2024] UKUT 170 (AAC) 17 The First-tier Tribunal’s approach to making findings on the basis of its own knowledge 44. Mr Rawlinson’s core submission, in effect, was that the FTT had put its own experience ahead of the Appellant’s evidence in circumstances where the Appellant’s evidence about conditions in Afghanistan properly outweighed the panel’s experience and knowledge, some of which was based on what had been seen on TV. This approach involved an error of law, he argued, as like was not being fairly compared with like – the evidential basis for the experience of the FTT panel, and in particular of the Judge, who had also served in Afghanistan, was not the same as the evidential basis for the Appellant’s experience. In this respect particular objection was taken to the following exchange, as recorded in the FTT hearing transcript (at p.49), which dealt with the type of clothing worn by service personnel in Afghanistan and their ability to seek shelter from the intense sunlight: JUDGE: Just a few questions from me Colonel C. I think it is fair to let you know that I was deployed to Afghanistan in August 2009 for a six month tour and I spent two months in Lashkar Gah and the rest of the time in Kandahar. Obviously I was not as active out on the ground as you were but did helicopter submitting so out to some of the FOBs and to Kabul and in fact spent a week in [inaudible]. So probably was issued with very much the same kit as you were. Certainly I was issued with two pairs of shorts, I never wore them. They have only been worn when I have been gardening here at home. And in fact everywhere I never saw anyone else wearing shorts. Certain not in Lashkar Gah when soldiers were having their downtime. So I will just make that comment. Also I went to all the daily briefings where I saw lots of photographs of what was happening out in the FOBs and the PD. So absolutely understand what you are talking about. So a few comments from me is that a lot of people were being moved around in helicopters when there were any available and vehicles such as and so forth. As you said Helmand is a green zone and a green zone for a reason although I appreciate that a lot of the FOBs would be sort of out in the desert area, places like [inaudible] and Kabul and Kajaki. But when we did go out on patrol obviously they were wearing full kit. Your statement in one place said that you didn’t have any long sleeved shirts issued to you but I am sure that is not correct. I am looking at paragraph 42, we didn’t have these in place [inaudible]. So you would be wearing full kit, long trousers, long sleeves, body armour, helmets and so forth. So very much when you were out on patrol the only part of you that was exposed was your face. Entirely accept having seen all the photos of soldiers firing water and things at handles and sorts and so I accept all that. So I accept all that. Just another comment that whilst I was out there night vision goggles had come in and quite a lot of soldiers went out at night not only because it was cooler but because there was not the opportunity … APPELLANT: If I may interrupt ma’am I mean all I would say is that many of us, thousands of us served in Helmand and passed through it. My experience and yours have much in common and also much in diversions with each other. And you know we served at the same time in many of the same places but I recognise what you are describing but all I would say that is not necessarily my experience. JUDGE: OK well just to comment on the FOBs that I did go to as you say they were compounds and they threw the hospo barriers around them and created a FOB and helicopter landing strips and all the rest of it. But my recollection is that they did actually have buildings there in the FOBs, I don’t know about TB. APPELLANT: Of course there were buildings there. You know I have sort of made that clear and we used cover wherever possible. My point is that we conducted significant mobile operations over large periods of time operating with things like N.C. (dec’d) by J.C. -v- SSD (AFCS) Case no: UA-2021-000742-AFCS [2024] UKUT 170 (AAC) 18 the brigade, reconnaissance, force and others and lived tactically in the desert in order to avoid contact with the enemy. That was part of a reconnaissance process. 45. In the course of his oral submissions Mr Rawlinson acknowledged that it was perfectly proper for the Judge to set out her own experience when posted to Afghanistan and to invite the Appellant’s comments. However, he submitted that the FTT had both failed to analyse the partly overlapping but still substantially differing experiences of the Judge and the Appellant on their respective tours of duty and had also failed to give the Appellant a proper opportunity to comment on other matters on which the panel had relied in making its findings (e.g. social media and TV coverage). This submission is unpersuasive for two main reasons, both of which were identified by Mr Hays. 46. The first reason, and the starting point, is that a specialist tribunal such as the FTT in the WPAFCC is entitled to take into account its own experience in reaching findings of fact. There are, however, safeguards, as recognised by the Lands Tribunal in Arrowdell Ltd v Coniston Court (North) Hove Ltd [2007] RVR 39 at [23]: … It is entirely appropriate that, as an expert tribunal, an LVT should use its knowledge and experience to test, and if necessary to reject, evidence that is before it. But there are three inescapable requirements. Firstly, as a tribunal deciding issues between the parties, it must reach its decision on the basis of evidence that is before it. Secondly, it must not reach a conclusion on the basis of evidence that has not been exposed to the parties for comment. Thirdly, it must give reasons for its decision. 47. Those requirements were set out in the context of the leasehold valuation tribunal, but they apply across the board to specialist tribunals and indeed are echoed in the war pensions case law. Thus, it follows that what the tribunal cannot do is to rely on its own specialist knowledge without putting the point to the affected party (Butterfield and Creasy v Secretary of State for Defence [2002] EWHC 2247 (Admin)). Likewise, the FTT cannot undertake its own research about an issue that is material to the outcome of the appeal without giving the parties the opportunity to comment (see Busmer v Secretary of State for Defence [2004] EWHC 29 (Admin)). The FTT in the present case was plainly alive to the importance of this principle, as illustrated by the following comment made by the Judge in the course of the FTT hearing (transcript at p.50): JUDGE: Right Miss Skander the position is this when the panel retires we consider the matter, they will bring their expertise as we are required to do because that is why this panel has been constituted with a service member, a medical member and a legal member. And if because of my own experience and expertise I know that certain facts exist then it would be entirely wrong for me to use that knowledge, expertise and experience in discussion with my panel members without giving Colonel C the opportunity to comment on it. So it would be even worse if in our discussions as a panel I said to my colleague that I know for certain X, Y and Z because that is what my experiences are. If I haven’t explained that to Colonel C that would be an even greater transgression. 48. The second reason is that it is important to distinguish between (a) what took place at the FTT hearing (in terms of the panel testing the evidence) and (b) what subsequently appeared in the FTT’s reasoned decision (in terms of the panel’s fact-finding). As Mr Hays submitted, it is only the latter that ultimately matters, N.C. (dec’d) by J.C. -v- SSD (AFCS) Case no: UA-2021-000742-AFCS [2024] UKUT 170 (AAC) 19 whereas Mr Rawlinson’s submissions were principally directed towards the former. It can only be said that the FTT erred in law if its reasoned decision demonstrates that it improperly relied, in making its findings of fact, on its own undisclosed specialist experience and knowledge rather than on the evidence before it. The reality, however, was that the FTT broadly accepted the Appellant’s own evidence as to both service clothing and the ability to seek shelter in Afghanistan: 14.4 We accept Mr C’s evidence that as part of his role, he would travel out to the Forward Operating Bases (a smaller and more rudimentary replica of the MOB) in order to liaise with the troops on regular patrol, to better understand the situation on the ground. We also accept that on occasions, he would go out on patrol with the troops, sometimes from Patrol Bases, an even more rudimentary replica of a FOB. However, what we do not accept is, as his Counsel encouraged us to find, that he was out in the heat and sun for 10-12 hours a day during his entire tour and that during this time he was wearing mainly shorts and T-shirts. 14.5 This was an exceptionally kinetic time for UK troops in Helmand with considerable casualties and deaths. It attracted significant media attention with many reports in the press and documentaries from the front line from reporters embedded with units. From our collective knowledge from such media exposure, descriptions from other appellants deployed to Afghanistan, and relevant personal experience we know that the threat was so great that troops on patrol did so in full combat dress, with body armour, and with legs and arms fully covered. We also accept that in periods of ‘downtime’ soldiers would wear their issued shorts and t-shirts, but had the flexibility to shelter in the shade and only exercise in the cooler/less sunny times of the day which would also protect from the dangers of heat exhaustion. 49. The fact of the matter is that these findings by the FTT broadly reflected the Appellant’s own evidence. For example, the Appellant agreed with the service member’s observation that “you wouldn’t be wearing [shorts] when you went out on the recces with the patrols”. Likewise, the Appellant himself acknowledged that “I would emphasise nobody would be foolish enough to go on patrol wearing shorts” (hearing transcript p.39). Thus, the FTT’s finding that “From our collective knowledge from such media exposure, descriptions from other appellants deployed to Afghanistan, and relevant personal experience we know that the threat was so great that troops on patrol did so in full combat dress” was in accord with the Appellant’s own evidence, so resort to the FTT’s wider knowledge cannot properly be characterised as unfair in any material way. Furthermore, the FTT’s acceptance that shorts were sometimes worn off-duty (contrary to the Judge’s comment that she had herself never seen anyone in shorts during her tour) fundamentally undermines the argument that the Judge (and by extension the panel) rejected the Appellant’s evidence on the basis of her own experience. The Appellant’s other main written submissions in the context of Ground 1 50. As originally drafted, Ground 1 alleged that the FTT fell into error by utilising impermissible methods to find facts. This proposition was supported by three discrete sub-grounds, namely that the FTT made findings (i) on the basis of no evidence (‘the nil evidence issue’), (ii) on the basis of material that was not part N.C. (dec’d) by J.C. -v- SSD (AFCS) Case no: UA-2021-000742-AFCS [2024] UKUT 170 (AAC) 20 of the case (‘the immaterial matters issue’), and (iii) on the basis of the Judge’s misunderstanding of her role (‘the controversial recollections issue’). 51. As to the first of these, the exemplar for the nil evidence issue appears to be the following passage at paragraph 14.3 of the FTT’s decision: His role was based in the Main Operating Base (MOB), a large community with a mix of former Afghan buildings, rigid tents and shipping containers housing TFH [Task Force Helmand] personnel, a large canteen, small gym, chapel and shop, together with a helicopter landing site, all surrounded by a perimeter wall. 52. Objection was taken to this passage on the basis that “there is no evidence to support any of the above” (grounds of appeal at §34). This submission goes nowhere. This extract simply contains a description of the conditions at the main base, doubtless informed by the panel’s own knowledge. There is no suggestion it is in any way inaccurate or misleading. Moreover, it was not material to the way in which the case was actually decided. In the final analysis, as we shall see in relation to Ground 3, the FTT was not persuaded that the Appellant’s melanoma was caused by sun exposure after April 2005 – and the description of the MOB environment was not instrumental to that conclusion. 53. Secondly, the immaterial matters issue concerns a challenge to paragraph 14.5 of the FTT’s decision and in particular the reference to “our collective knowledge from such media exposure”. This objection has already been addressed in the preceding section of this judgment. The short answer is that the FTT was responding to an ambitious submission by counsel that the Appellant “was out in the heat and sun for 10-12 hours a day during his entire tour and that during this time he was wearing mainly shorts and T-shirts” (paragraph 14.4). The FTT’s finding that he would have been wearing full combat dress when out on patrol was, as we have seen, entirely consistent with the Appellant’s own evidence. 54. Thirdly, the controversial recollections issue turned on the Judge’s comment that while posted to Afghanistan she had not seen army personnel in shorts. This point is also subsumed in the discussion above and has no merit. The Appellant’s other main oral submissions in the context of Ground 1 55. Finally, as regards Ground 1, Mr Rawlinson contended at the oral hearing that there were several contradictory findings in the FTT’s decision which amounted to errors of law. The following two examples will suffice to show why this submission lacked traction. First, the FTT found that the Appellant experienced sunburn during his 2004/05 tour of Afghanistan, despite much of the period being in the Afghan winter (paragraph 13.6). It was suggested that the panel took a contradictory approach in paragraph 14.7 dealing with his last 2017/18 tour. On any fair reading there is no inconsistency in terms of the effect of winter sun exposure; rather, the panel was pointing to the very different nature of the Appellant’s roles during these two respective periods. Secondly, Mr Rawlinson argued there was a contradiction between the fourth bullet point under ‘What we do not know’, relating to latency (paragraph 16.5), taken with the panel’s finding about latency at paragraph 18.7, and the positive finding of latency in paragraph 19. This critique is akin to counting the number of angels on the head of a pin and is addressed more fully below in the context of Ground 3. N.C. (dec’d) by J.C. -v- SSD (AFCS) Case no: UA-2021-000742-AFCS [2024] UKUT 170 (AAC) 21 56. Mr Rawlinson’s remaining submissions on Ground 1 in large part comprised a commentary on specific passages in the FTT hearing transcript. On closer analysis these observations typically amounted to a thinly disguised invitation to the Upper Tribunal to take a different view of the factual evidence and in particular to accord different weight to particular items of evidence as compared with the FTT’s approach. However, to do so would involve the Upper Tribunal impermissibly trespassing on the fact-finding function of the specialist first instance tribunal. Ground 3 Introduction 57. Ground 3 involves two discrete submissions. The first is the contention that the FTT misdirected itself in law in respect of the non-fault based nature of the AFCS. The second, in summary, is the argument that the FTT erred in law through misapplying JM v Secretary of State for Defence (AFCS) [2015] UKUT 332 (AAC); [2016] AACR 3 in the light of the circumstances obtaining in this case. 58. Judge Hemingway had this to say in respect of Ground 3 when granting permission to appeal (emphasis as in the original): Having reminded myself of the relatively low threshold applicable when considering a permission application, I do give permission on this ground. It may be the case that the F-tT, whilst correctly identifying the relevance of what had been said in JM, did not then apply it correctly. 59. I do not read Judge Hemingway’s grant of permission to appeal as limiting Ground 3 to the JM point and so proceed accordingly. The non-fault based nature of the AFCS 60. The argument that the FTT overlooked the non-fault based nature of the AFCS represented a challenge to paragraph 17 of the FTT’s decision: 17. Were the Services responsible for providing sunscreen As noted above, Mr C was well aware from his holidays in Australia of the dangers of sun exposure and the need for sunscreen. He put this knowledge into practice when engaging in activities in his private life, (hill walking and cycling) outdoors. He described his family as being particularly fair skinned (he considered himself to be a Type 3 skin type; i.e. tans fairly easily) and therefore particularly careful in the sun. In these circumstances we find it extraordinary that he failed to pack sunscreen when posted to a known hot and sunny location, especially after he had learned lessons about sunburn from previous postings. We do not accept his assertion that this would make his baggage ’too heavy’; a bottle of sunscreen would be insignificant in relation to the considerable other ‘kit’ he would be taking, and, during his longer tours, supplies could be replenished during mid-tour breaks back home, or in local shops where appropriate. We accept that service is primarily responsible for providing protection against specific risks in operational areas and malaria is the most common example with medication, nets and appropriate clothing being routinely supplied. However, we find that sunshine is a global phenomenon and N.C. (dec’d) by J.C. -v- SSD (AFCS) Case no: UA-2021-000742-AFCS [2024] UKUT 170 (AAC) 22 individuals would be expected to source their own, depending on preferred brands, SPF factor etc. for use both on and off duty. We note that sunburn to the extent that it prevents a service person from carrying out their duties is a disciplinary offence in the military. We therefore consider that sunscreen should be viewed in the same light as personal toiletries such as shampoo/soap/toothpaste and there is no ‘factor of service’ in the non-standard provision of sunscreen. Notwithstanding the above it is clear that there is no consensus about whether sunscreen is effective, with protective clothing and avoidance of exposure either side of midday also being important. 61. Counsel for the Appellant also drew attention to paragraph 18.3 of the FTT’s decision, namely the finding that “It was his responsibility to equip with and use sunscreen when necessary”. As such, so it was argued, the FTT was identifying an alleged failure on the part of the Appellant as being causative, and this finding was in complete disregard of the non-fault based nature of the AFCS. 62. This submission is unpersuasive for three reasons. 63. First, the FTT was entitled to consider who bore the responsibility for the provision of sunscreen, not least because the issue had been raised at the hearing. This was ultimately an issue of fact, not law. If armed forces personnel bear that responsibility, then to the extent that injury was caused by lack of sunscreen it is hard to see how such injury could be said to have been caused by service. As Mr Hays observed in his skeleton argument (at §29), nobody could seriously suggest that rotten teeth caused by a soldier’s failure to use toothpaste would be an injury caused by service. 64. Secondly, and crucially in any event, it so happened that the issue of the responsibility for providing sunscreen turned out not to be determinative in any significant respect. It is not as though the FTT found that post-2005 sun exposure was causative but then ruled out that factor as a service cause on the basis that the Appellant had neglected to apply sunscreen. As the FTT had noted at paragraph 16.3, “Para 4.16 [of the UVR Synopsis] states that studies into the relationship between sunscreen and melanoma are inconsistent. The consensus is that properly applied they help to reduce solar damage but protection against melanoma is less certain.” This led to the FTT’s observation in paragraph 17 that “it is clear that there is no consensus about whether sunscreen is effective”. In short, the FTT’s conclusion was that it was not satisfied that post-2005 sun exposure was the cause of the melanoma, whether or not the extent of exposure might have been alleviated by sunscreen. 65. Thirdly, it is axiomatic that tribunals need not refer to well-known principles of law – they are assumed to know them unless their reasons demonstrate otherwise. As Burnett LJ (as he then was) remarked in EJA v Secretary of State for the Home Department [2017] EWCA Civ 10 (at [27]) “some principles are so firmly embedded in judicial thinking that they do not need to be recited”. By the same token, a principle as elementary as the no-fault basis of the AFCS (and indeed of its predecessor war pensions scheme) is part of the daily currency of a FTT sitting in the WPAFCC. One would need compelling evidence before making a finding that a tribunal had failed to observe such a fundamental tenet of the statutory scheme. No such warrant applies in the present case. N.C. (dec’d) by J.C. -v- SSD (AFCS) Case no: UA-2021-000742-AFCS [2024] UKUT 170 (AAC) 23 The causation test and JM v Secretary of State for Defence Introduction 66. Mr Rawlinson and Ms Skander, in their oral and written submissions respectively, placed rather more emphasis on the second aspect of Ground 3, namely their critique of the way in which the FTT had interpreted JM v SSD and thereafter applied the causation test. Key points from the three-judge panel’s decision in JM v Secretary of State for Defence 67. The appellant in JM was a soldier who made a claim under the AFCS for depression, allegedly caused by bullying while in service. The Secretary of State rejected the claim. A tribunal dismissed the soldier’s appeal, holding that his depression was caused by multiple factors including personal, domestic and marital problems. His further appeal to the Upper Tribunal was allowed by a strong three-judge panel (Charles J, UTJ Rowland and UTJ (Shelley) Lane and the case remitted for rehearing by a fresh FTT. 68. At paragraph 118 of its judgment in JM the Upper Tribunal set out the following four-staged process as the correct approach to issues of causation and predominant cause under the AFCS: The steps to be taken in the application of the AFCS test 118. The analysis we have set out founds the conclusion that the correct approach to the issues of cause and predominant cause under the AFCS is: i) First identify the potential process cause or causes (i.e. the events or processes operating on the body or mind that have caused the injury); ii) Secondly, discount potential process causes that are too remote or uncertain to be regarded as a relevant process cause; iii) Thirdly, categorise the relevant process cause or causes by deciding whether the circumstances in which each process cause operated were service or non-service causes. It is at this stage that a consideration of those circumstances comes into play and the old cases on the identification of a service cause applying the old attributability test provide guidance. iv) Fourthly, if all of the relevant process causes are not categorised as service causes, apply the predominancy test. 69. The Upper Tribunal in JM then provided further analysis of what was meant by the notion of a predominant cause before giving the following more ‘high level’ guidance (the reference to Mr Marshall is to Marshall v Minister of Pensions [1948] 1 KB 106): 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 N.C. (dec’d) by J.C. -v- SSD (AFCS) Case no: UA-2021-000742-AFCS [2024] UKUT 170 (AAC) 24 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: (a) have occurred at all, or (b) 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 nonservice 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. 70. For the avoidance of doubt I start from the premise that JM was correctly decided as to the application of the predominancy test in the context of the assessment of causation under the AFCS. Indeed, as JM is a decision of a three-judge panel it is binding on me as a single judge of this Chamber (Dorset Healthcare NHS Foundation Trust v MH [2009] UKUT 4 (AAC)) just as it is binding on the FTT. The First-tier Tribunal’s approach to the decision in JM v SSD 71. The FTT cited paragraphs 134-136 of JM at paragraph 9 of its own decision as well as setting out paragraph 145 (which is in the form of a direction to the remitted tribunal, effectively in identical terms to paragraph 118 of the three-judge panel’s judgment). It therefore cannot seriously be suggested that it misdirected itself as to the law, and Mr Rawlinson did not suggest as much – rather, his submission was that the FTT had erred in the application of the relevant legal tests to the facts. The FTT then sought to apply that template to the circumstances of the present case in the final paragraph 19 of its own decision, which I replicate here for convenience: 19. Applying the Law We have largely followed the guidelines helpfully set out in JM vs SoS and quoted at Para 9 above but with the fundamental distinction that this is not N.C. (dec’d) by J.C. -v- SSD (AFCS) Case no: UA-2021-000742-AFCS [2024] UKUT 170 (AAC) 25 only a question of whether service was the predominant cause, but whether service after 6th April 2005 was the predominant cause. We have first considered whether, without a ‘service cause’ the injury would have occurred at all. We conclude that sun exposure post April 2005 might have led to some form of melanoma, but not for many more years. The first mole was noticed by Mr C in 2013, only 8 years post the start of AFCS service, and there is no evidence at all that such a short latency period (even up to malignancy in 2018) would be causative. This is presumably why the IMEG report concludes at Para 14 that in general, none of these circumstances is likely to be met due to service after 6 April 2005 and so most cases of NMSC and CMM claimed under AFCS will be liable to rejection. However, each case will be considered on its facts. (NMSC stands for non-melanoma skin cancers). Clearly as time goes on, this conclusion will carry less weight as the period between exposure and onset becomes more stretched. The second question is (applying the test in JM above) whether without the ‘service cause’ the injury would have been less than half as serious. In our view, the basic injurious process started pre 2005. It would be wholly speculative, unsupported by the medical evidence and certainly not meet the standard of proof or the predominancy test for us to conclude that the onset of Mr C’s CMM would have been less than half as serious if he had not had post 2005 sun exposure. In the specific case of CMM it is difficult to envisage what ‘half as serious’ might look like, and the Medical Opinions to which we have referred above do not even discuss such a concept. JM was a case about mental health conditions where it is somewhat easier to tease out the effects of service and non-service factors. We have also noted the IMEG conclusion that each case should be considered on its facts. Had there been no pre 2005 sun exposure at all (not only in service), and Mr C were very much younger then there might be an argument for a service cause but bearing in mind the medical evidence that UVR is not the only factor. On the evidence in this appeal, this is not such a special case. The Appellant’s challenge to the FTT’s approach to the decision in JM v SSD 72. It has to be said at the outset that the basis on which this third ground of appeal has been advanced by counsel on behalf of the Appellant has shifted somewhat over time. 73. First, the Appellant’s original grounds of appeal accepted that the approach to causation as set out in JM was correct, but sought to argue that the FTT had misdirected itself in the application of that test to the facts of the case. For example, it was argued that there was an inherent contradiction between the FTT’s finding that the IMEG report did not try to define a latency period (paragraph 18.7) and its conclusion a few sentences later that “sun exposure post April 2005 might have led to some form of melanoma, but not for many more years” (paragraph 19). 74. Secondly, however, the Appellant’s skeleton argument then raised the possibility (at §16) that JM had no application in the case of a ‘long-tail’ condition (“It is difficult to conceive of how the application of a predominancy test would apply to N.C. (dec’d) by J.C. -v- SSD (AFCS) Case no: UA-2021-000742-AFCS [2024] UKUT 170 (AAC) 26 an ‘all or nothing’ (and hence indivisible) condition”). On this basis, the Appellant’s “primary case” was then put rather differently – namely “if JM is found not to be applicable”. By analogy with Holmes v Poeton Holdings Ltd [2023] EWCA Civ 1377; [2024] 2 WLR 1029, it was argued that the AFCS causation test should be whether service has made a “material contribution in fact” to the outcome. Failing that, and as it was put, “even if” JM remained good law, the Appellant’s case in the alternative was that his appeal should have succeeded by reference to factors such as genetic susceptibility and current medical knowledge. 75. Thirdly, and finally, Mr Rawlinson’s oral submissions at the Upper Tribunal hearing involved a further change of tack. He reverted to the position that the approach to causation as set out in JM was correct and accordingly eschewed any suggestion that the common law test of a “material contribution in fact” was sufficient to meet the predominancy test. In concluding, he argued that the application of the four-fold staged process in paragraph 118 of JM only admitted of two possible outcomes. The first was to accept that there was nothing to do but throw one’s hands in the air as a long-tail cancer case would never satisfy the predominancy test. The second was to acknowledge that the predominancy test was satisfied in this case by reliance on the majority of periods of intense sun exposure having taken place in the post-2005 period. Mr Rawlinson averred that the latter was both the correct and the just approach. 76. As I understood them, Mr Rawlinson’s submissions necessarily proceeded on the following basis. As to the first element of the four-stage test in paragraph 118(i), both pre-2005 UVR exposure in service and post-2005 UVR exposure in service were potential process causes. As to paragraph 118(ii), there were no other possible process causes in play as intense exposure to the sun during service (at whatever date) was the only operative process cause (childhood exposure having by now been discounted). As to paragraph 118(iii), this likewise posed no problem as there was no relevant non-service cause. As to paragraph 118(iv), Mr Rawlinson submitted that here the FTT had misapplied the predominancy test. Thus, as it had been framed in the grounds of appeal, it was argued that “the evidence demonstrated that the overwhelming balance of the exposure postdated 2005” (at §69). This comes perilously close to a perversity challenge. 77. In support of the proposition that the overwhelming balance of the Appellant’s UVR exposure post-dated 2005, Mr Rawlinson provided (at the Upper Tribunal oral hearing) a document entitled ‘Tables of Exposure’. This sought to tabulate the respective periods of sun exposure during the Appellant’s first and second periods of service. It purported to show 14 months of UVR exposure in the 1988- 1997 period and 32 months of sun exposure in the second period of service (namely after 2004). Quite properly Mr Rawlinson acknowledged that this was not a document that had been agreed by Mr Hays, but, in any event, he argued that it was simply collating the evidence as it was before the FTT and presenting it in a compendious manner. For present purposes I leave to one side the facts that (i) no formal application was made to admit this document in the Upper Tribunal; (ii) the Respondent has not agreed it (and so Mr Hays has not made submissions on it); and (iii) self-evidently it was not put before the FTT, at least in the present form. A superficial reading of the ‘Tables of Exposure’ document might indeed appear to support the argument that “the overwhelming balance of the exposure post- N.C. (dec’d) by J.C. -v- SSD (AFCS) Case no: UA-2021-000742-AFCS [2024] UKUT 170 (AAC) 27 dated 2005”. On the face of it at least, 32 months of exposure far outweighs 14 months. TABLES OF EXPOSURE First Period in the army from 1988 to 1997 Year(s) Location Evidence Total exposure Grand total 1988 Canada UT 122 2 months 1991 Canada UT 122 2 months Summer 1994 Bosnia UT 122 2 months 1996 South Carolina UT 122 8 months 14 months Second Period in the army Month/Years(s) From: Location Evidence Total Exposure Grand total October 2004 to April 2015 Afghanistan UT 124 6 months February 2006 Kenya (grand prix) FTT 73R UT 125 2.5 months October 2007 Oman UT 124 2.5 months 16 March 2009 to November 2009 Afghanistan UT 126 FTT 91-92 8 months 26 October to 15 May 2010 Afghanistan FTT 95 3 months September 2017 to June 2018 Afghanistan UT128 10 months 32 months N.C. (dec’d) by J.C. -v- SSD (AFCS) Case no: UA-2021-000742-AFCS [2024] UKUT 170 (AAC) 28 78. The reality, however, is that on closer scrutiny the document does not prove what it seeks to assert. In particular, the second period of the Appellant’s service is not congruent with post-2005 service, as the first entry for the second period (6 months in Afghanistan, October 2004-April 2005) properly counts as pre-AFCS service. Furthermore, the last entry for the second period of service (10 months in Afghanistan, September 2017-June 2018) cannot realistically be included as relevant causative sun exposure, given both (a) the FTT’s factual finding about this period (“This winter deployment was primarily office based indoors”: paragraph 14.7) and (b) what is known about latency (an issue to which I also return below). It follows that providing an aggregate duration of sun exposure of 14 months (for the first period of service) and 32 months (covering the second period of service) is of no relevance and is potentially misleading. The self-same data can be more accurately recategorized respectively as 20 months’ exposure (being the original 14 months + 6 months from 2004/05) for pre-April 2005 service and 16 months’ exposure (32 – 16 (6 + 10)) for post-April 2005 AFCS service. Looked at in this more nuanced way, the evidential case for post-April 2005 exposure as being predominant in comparison to the pre-April 2005 exposure is not at all obvious. 79. Be all that as it may, it is not the Upper Tribunal’s role to review and redecide the facts where the right of appeal is confined to an error of law jurisdiction. As rehearsed above, the FTT here made detailed findings of fact as to the Appellant’s UVR exposure both before and after April 2005 in the section of its decision headed ‘The evidence relating to the Appellant’s sun exposure’ (which actually contains a combination of a narrative of some of the key evidence together with the FTT’s factual findings) – see paragraph 24 above. Those findings amply supported the FTT’s overarching and determinative findings of fact as neatly summarised at paragraphs 18.1 and 18.2 of its decision: 18.1 Mr C suffered multiple episodes of sun exposure of short duration and unknown intensity from early adulthood until around 2017. All of this was in a military, not civilian setting. 18.2 When out on patrol in Afghanistan, Mr C would be substantially covered up and protected against the sun. Sun exposure during his other post 2005 tours would have been of shorter duration and intensity. 80. All this notwithstanding, the outcome of the application of the causation test cannot be determined by a somewhat arid arithmetical exercise of counting the respective numbers of years and months of UVR exposure both pre- and postApril 2005 (and even putting to one side the obvious point that the intensity of exposure at any given time and at any given location will vary according to both geographic and climatological factors). Instead, the assessment of causation is a complex multi-factorial exercise, taking into account ‘What we do know’ (paragraph 16.6) and bearing in mind ‘What we don’t know’ (paragraph 16.5). The question of latency is part of this wider process of multi-factorial assessment. In this context two principal submissions were made on behalf of the Appellant as regards the FTT’s approach to latency. 81. The first, as outlined above, was the submission that there was a contradiction between the FTT’s finding that the medical evidence did not “define a latency period” (paragraph 18.7) and its conclusion just several sentences later that sun N.C. (dec’d) by J.C. -v- SSD (AFCS) Case no: UA-2021-000742-AFCS [2024] UKUT 170 (AAC) 29 exposure in the Appellant’s AFCS service “might have led to some form of melanoma, but not for many more years” (paragraph 19). This argument goes nowhere. In stating that the medical evidence did not “define a latency period”, the FTT was simply observing that the medical evidence did not specify a set number of years (or a range of years) for latency. Rather, the UVR Synopsis stated in more guarded terms that “‘childhood sunburns … have been linked to melanoma in later life’ implying a long latency period” (paragraph 16.5, 4th bullet point). This understanding was reinforced by the acknowledgement that exposure as a child or young adult “is a potent risk factor” (‘What we do know’, paragraph 16.6, 1st bullet point). In short, the FTT was recognising that a trigger event may occur in youth or early adulthood but not manifest itself until much later in life and indeed it noted that “Mr C’s age profile is consistent with a ‘peak incidence in the fifth decade’” (‘What we do know’, paragraph 16.6, 3rd bullet point). It follows that there is no inconsistency between the FTT finding there is no defined (in the sense of definitively specified) latency period and its conclusion that e.g. the mole first identified in 2013 was unlikely to be attributable to (relatively recent) exposure to UVR after April 2005. 82. The second main submission on latency was that the FTT had failed to define what it meant by the “basic injurious process” (paragraph 16) and failed to distinguish between what Mr Rawlinson referred to as latency type 1 and latency type 2. By latency type 1, he meant the time lag after the exposure to the harmful agent and the period during which no changes to the body took place. By latency type 2 he referred to the later period that elapsed after the affected cells begin to mutate and the cancer spreads. There are at least two reasons why this submission is unpersuasive. The first is that this was not how the case was run before the FTT, so the tribunal can hardly be properly criticised for failing to make this distinction. The second is that on any fair reading of the FTT’s decision as a whole it is perfectly clear what it meant by the “basic injurious process”. It was referring to the entirety of the period from the time of the relevant causative exposure to the time that the melanoma manifested itself, namely, as the FTT put it, “the timeline between exposure and onset” (paragraph 16.5, 3rd bullet point), in other words the latency period as that term is commonly understood. 83. I therefore conclude that the FTT did not err in law in its approach either to the issue of latency nor to the application of the JM predominancy test. Pulling the threads together 84. I agree with Mr Hays’s submission that the final paragraph of the FTT’s decision is telling: We have also noted the IMEG conclusion that each case should be considered on its facts. Had there been no pre 2005 sun exposure at all (not only in service), and Mr C were very much younger then there might be an argument for a service cause but bearing in mind the medical evidence that UVR is not the only factor. On the evidence in this appeal, this is not such a special case. 85. In summary, the FTT was postulating that even if there had been no pre-2005 sun exposure then the Appellant would not necessarily have succeeded in an AFCS claim. This passage, and a fair reading of the decision as a whole, confirms that the FTT was influenced in reaching its conclusion as to causation by three N.C. (dec’d) by J.C. -v- SSD (AFCS) Case no: UA-2021-000742-AFCS [2024] UKUT 170 (AAC) 30 factors in particular. The first was that the Appellant’s age was important – in particular, the exposure during AFCS service took place when he was in his late 30s (or older) and not when he was a young adult. The second was the significance of latency, with diagnosis in the fifth decade of life being the period of peak incidence. The third was that UVR is by no means the only factor in causing melanoma. Strictly speaking, and given the finding that post-2005 exposure was not causative, the FTT did not need to delve into the predominancy test – the Appellant’s case (and, of course, the burden of proof was on him) fell at the first hurdle in paragraph 118 of the decision in JM. Conclusion 86. For all the reasons above, I dismiss this appeal as neither of the two grounds of appeal on which permission was granted is made out. Nicholas Wikeley Judge of the Upper Tribunal Approved for issue on 6 June 2024
Neutral Citation Number: [2022] UKUT 232 (AAC)
UA-2021-001017-WP (Formerly Case No. CAF/1097/2021)
IN THE UPPER TRIBUNAL
ADMINISTRATIVE APPEALS CHAMBER
On appeal from the First-tier Tribunal (War Pensions and Armed Forces Compensation Chamber)
Between:
CRP
Appellant
- v -
SECRETARY OF STATE FOR DEFENCE
Respondent
Before: His Honour Judge Najib sitting as a Deputy Upper Tribunal Judge
Decision date: 12 August 2022
Decided on consideration of the papers
Representation:
Appellant: In person
Respondent: Ms Daisy Beck
DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
The DECISION of the Upper Tribunal is to dismiss the appeal by the Appellant.
The decision of the First-tier Tribunal dated 22 March 2021 under file reference AFCS/00201/2020 does not involve any error of law. The First-tier Tribunal’s decision stands.
This decision is given under section 11 of the Tribunals, Courts and Enforcement Act 2007.
REASONS FOR DECISION
Introduction
1. This is an appeal against the decision of the First-tier Tribunal (War Pensions and Armed Forces Compensation Chamber) (‘the FtT’) dated 22 March 2021 dismissing the Appellant’s appeal against the Secretary of State for Defence’s decision dated 7 July 2018 under the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011 (‘AFCS’) to place the Appellant’s mental health condition at Table 3 - Item 2.
Factual Background
2. The Appellant was born on 04 January 1959. He was a Surgeon Commander in the Navy and worked full time as an ENT consultant. He also undertook research, was a Defence Consultant Advisor and sat on various committees at senior levels. He began to suffer from intermittent episodes of work related stress from 2006. By October 2009 his mental health had deteriorated. He then sought specialist advice and was formally diagnosed as suffering from recurrent depressive adjustment disorder.
3. Thereafter, the Appellant undertook gradually more limited private work, NHS locum work and an occupational clinic at the Institute of Naval Medicine. In 2014 the Appellant was advised to cease NHS work because of his mental health problems. He ceased NHS work in 2015 but continued with his clinical work at the Institute of Naval Medicine. In 2016 the Appellant was appointed as a fee-paid medical member in the First-tier Tribunal (Social Entitlement Chamber). The Appellant made two unsuccessful attempts to ‘gradually return to work’ under the GROW scheme. Eventually, he was medically discharged from the Navy in 2017. The Appellant, however, continued (and continues) to sit as a fee paid medical member in the First-tier Tribunal. Full details of the Appellant’s work history post 2009 are set out in his helpful chronology at [179].
4. In August 2018 the Appellant was referred to Occupational Health because he found that “exposure to confrontation and complaints as a tribunal member has triggered deterioration in his mental health. These experiences resonate with health problems he developed after similar exposure in the Navy and NHS”. He was advised to take a period of 3 months off work, but he did not do so. He continued to sit in the fee paid role but made various adjustments to reduce stress levels.
5. The Appellant is required to sit a minimum of 15 days per year. However, in his evidence to the FtT, he stated that he routinely sits 1 day per week and that in 2019 and 2020 he sat for circa 48 days per year. He said that he finds this level of commitment sustainable and that he had not had to cancel any sittings or taken any periods off, other than holidays. He also stated that when the opportunity arises, he will take on additional days when other fee paid medical members have had to cancel.
The Claim Under the AFCS and the Appeal to the FtT
6. On 14 June 2016, the Appellant made a claim for compensation under the AFCS. On 3 July 2017 an interim award was made in the sum of £10,000, reviewable after 18 months.
7. By a decision dated 07 July 2018, the Secretary of State reviewed the interim award and placed the Appellant’s mental health condition at Table 3 - Item 2, namely that it was a “permanent mental disorder, causing moderate functional limitation or restriction” (emphasis added). This meant that the applicable tariff amount was £61,800.00. Taking into account the interim award of £10,000, the Appellant was entitled to a further payment of £51,800. The Secretary of State also determined that the Appellant was entitled to a Guaranteed Income Payment (‘GIP”) but that the GIP was calculated at £nil. The GIP was later increased on 22 January 2019 to £4,266.72 per annum.
8. The Appellant appealed the decision to place his mental health condition at Table 3 - Item 2 to the FtT. He asserted that his mental health condition properly fell within Table 3 - Item 1, namely that it was a “permanent mental disorder, causing severe functional limitation or restriction” (emphasis added).
9. There was no dispute before the FtT that the Appellant’s mental health condition was ‘permanent’. The issue for the FtT was whether the Appellant’s mental health condition caused ‘severe’ rather than ‘moderate’ functional limitation or restriction. The footnotes to Table 3 provide the following definitions:
“(a) Functional limitation or restriction is severe where the claimant is unable to undertake work appropriate to experience, qualifications and skills at the time of onset of the illness and over time able to work only in less demanding jobs.
(b) Functional limitation or restriction is moderate where the claimant is unable to undertake work appropriate to experience, qualifications and skills at the time of onset of the illness but able to work regularly in a less demanding job.” (emphasis added).
10. Having considered the footnotes to Table 3, and there being no dispute that the Appellant’s role as a fee-paid medical member in the First-tier Tribunal was a ‘less demanding job’ than his previous job(s), the FtT concluded that the Appellant’s ability to routinely sit one day per week as a fee-paid medical member in the First-tier Tribunal meant that he was able to ‘work regularly in a less demanding job’ and so his mental health condition properly fell within Table 3 - Item 2. The FtT, therefore, dismissed the Appellant’s appeal.
The Appeal to the Upper Tribunal
11. The Appellant sought permission to appeal to the Upper Tribunal. He set out his grounds in detailed written submissions. In summary, the Appellant asserted that the FtT had erred in (i) its interpretation of Item 1 in that Item 1 does not preclude the possibility that a claimant is able to work with some degree of ‘regularity’ and does not require that he only be able to work ‘intermittently’; (ii) limiting its consideration only to the period after his discharge from the Navy when it ought to have considered the whole period from “the time of the onset of the illness”; (iii) finding that working one day per week as a fee paid medical member in the First-tier Tribunal amounts to working ‘regularly’; and (iv) failing to take account of the fact that since the onset of his mental health condition in 2009, he has only been able to work over time in a series of less and less demanding jobs and so falls within Item 1.
12. By an order dated 7 June 2021, Deputy Upper Tribunal Judge Mark Rowland sitting as a judge of the FtT refused permission to appeal. He concluded that (i) the FtT correctly identified that the key issue was whether the Appellant “was able to work regularly in a less demanding job”; (ii) the FtT was entitled to find on the evidence that the Appellant was in fact able to work ‘regularly’ in such a less demanding job, namely as a fee paid medical member in the First-tier Tribunal; (iii) the terms of the footnotes to Table 3, read with section 5B(b) of the Pensions Appeals Tribunals Act 1943, require the capacity of a claimant to work to be considered as at the date of the Secretary of State’s decision but that whilst there may be an “element of looking back at what a claimant has actually done since the onset of the illness, because that may be relevant to assessing his or her ability to work”, that cannot be determinative of what a claimant is ‘capable of doing’ as at the date of the Secretary of State’s decision; (iv) despite the manner in which the FtT expressed itself, on a proper construction and application, Items and 1 and 2 are mutually exclusive - footnote (a) (Item 1) must be read as not including jobs that might fall within footnote (b) (Item 2) which covers jobs that a claimant can do ‘regularly’; (v) the FtT was entitled to disregard the jobs that the Appellant had done between the onset of his mental health condition and his discharge from the Navy, because it was clear that he could no longer do those jobs ‘regularly’ - they did not, therefore, assist with the question of whether he was able to work ‘regularly’ as at the date of the Secretary of State’s decision; and (vi) the Appellant’s work as a fee paid medical member in the First-tier Tribunal, even if only one day per week, did not fall to be disregarded.
13. The Appellant then applied to the Upper Tribunal for permission to appeal. He set out of his grounds in a very detailed document running to some 11 pages. The core of the Appellants’ grounds of appeal and arguments remained as previously, however, he set out further detailed submission in support. He also added additional grounds of appeal, namely (i) that the hearing was procedurally unfair because he was not permitted to cross-examine the Secretary of State’s representative (Mr Newman) at the hearing, the FtT had already formed a settled view on the interpretation of footnote (b), the FtT did not give any indication that “it would rule out Item 1 on the basis that [he] was not working intermittently” or that it would exclude from consideration the “steady decline in [his] capacity for work whilst [he] was still serving” and so was he not able to address those points in submissions; (ii) the FtT failed to give reasons for why it rejected his evidence as to his alleged discussions with Ms Janet Gregory who is a decision maker on behalf of the Secretary of State; and (iii) the FtT failed to ascertain the Secretary of State’s interpretation of Items 1 and 2 and footnotes (a) and (b) and so failed to establish the extent of the conflict of opinion.
14. By an order dated 4 February 2022, Upper Tribunal Judge Wright gave permission to appeal. Upper Tribunal Judge Wright noted that he tended to the view that the FtT came to the correct decision on the law and evidence, essentially for the reasons given by Deputy Upper Tribunal Judge Mark Rowland, but that he was prepared to grant permission because clear authority from the Upper Tribunal on the relevant legal provisions might be of assistance.
15. The Secretary of State lodged detailed written submissions opposing the appeal. The Appellant lodged further detailed written submissions in response.
Discussion
The FtT’s task when determining which descriptor applies
16. Article 16(1)(b) AFCS provides as follows:
16.—(1) Subject to articles 25 and 26—...
(b)where an injury may be described by more than one descriptor, the descriptor is that which best describes the injury and its effects for which benefit has been claimed;
17. In Secretary of State for Defence v Duncan and McWilliams [2009] EWCA Civ 1043 the Court of Appeal accepted as correct, the Upper Tribunal’s statement that the objective was to identify “the single descriptor most accurately describing [the injury]” and stated that “[t]his requires a careful analysis of the facts and then a consideration of which descriptor is the most appropriate” (§56).
18. The Court of Appeal also stressed that the compensation scheme under AFCS was designed to be “easy to administer”, that as decisions would, in the first instance, be made by lay persons, it was important that the “scheme should be relatively simple” (§§2-3) and that “[t]he whole purpose of the scheme is to fix sums by quite detailed and precise rules which can be readily interpreted at the first stage by laymen. The appropriate descriptor will in many cases be relatively easy to determine and where that is so there will be no purpose, and indeed no justification, in looking further” (e.g. by cross referring to other parts of the scheme) (§57).
19. Article 16(1)(b) clearly allows for the possibility that a claimant’s circumstances may be described by more than one descriptor. There is nothing surprising in that. Determining whether a permanent mental disorder has caused ‘moderate’ or ‘severe’ functional limitation or restriction is a matter of evidence and judgment. The answer may not be clear and arguments may be made either way. However, bearing in mind that the purpose of the descriptors in Table 3 is to provide a hierarchy of descriptors providing different levels of disability, the functional limitation or restriction cannot be both ‘moderate’ and ‘severe’ at the same time. It is one or the other - and it is the task of the decision maker or tribunal to determine which it is. It does so by considering all relevant evidence and then determining which of the two most accurately describes the functional limitation or restriction and is, therefore, most appropriate.
20. In the present case, there were only two descriptors which could potentially apply, namely Item 1 (severe functional limitation or restriction) or Item 2 (moderate functional limitation or restriction). As such, the task of the FtT was simply to determine which of two was most appropriate.
21. I am more than satisfied that the FtT approached the task in that manner and did not err. At §23 of its Statement of Reasons (‘SoR’) the FtT clearly noted that it had to determine which of Items 1 and 2 was more appropriate and at §27 asked itself the correct question, namely “which is the descriptor that best describes [the Appellant’s] limitations”.
The distinction between Items 1 and 2
22. As set out at §9 above, ‘severe’ and ‘moderate’ functional limitation or restriction are defined in footnotes (a) and (b) to Table 3.
23. Functional limitation or restriction is ‘severe’ where the claimant is unable to undertake work appropriate to experience, qualifications and skills at the time of onset of the illness “and [is] over time able to work only in less demanding jobs”.
24. Functional limitation or restriction is ‘moderate’ where the claimant is unable to undertake work appropriate to experience, qualifications and skills at the time of onset of the illness “but [is] able to work regularly in a less demanding job.”
25. The gist of the Appellant’s argument is the FtT erred in approaching the matter by focusing solely on whether his work as a fee paid medical member in the First-tier Tribunal could be described as ‘regular’ and that if it could, that meant he fell within Item 2. He says that although the word ‘regularly’ is not used in footnote (a) when defining ‘severe’ functional limitation or restriction, footnote (a) does not preclude the possibility that a claimant is able to work with some degree of ‘regularity’ and it does not require that he only be able to work ‘intermittently’. He argues that there is a distinction between the concept of a ‘work’ and a ‘job’, the latter implying a reliable source of income and a steady commitment and that all jobs have some degree of regularity. It follows, he says, that as the word ‘job’ is used in footnote (a), some degree of ‘regularity’ is to be read into the same. He further says that to exclude any degree of ‘regularity’ from Item 1 frustrates the intention of Parliament to compensate claimants for their loss of earning capacity. It follows, he says, that even if his work as a fee paid medical member in the First-tier Tribunal could be described as ‘regular’ that did not mean Item 1 was not the appropriate descriptor.
26. As stated above, the purpose of the descriptors in Table 3 is to provide a hierarchy of descriptors providing different levels of disability which are simple to interpret and apply. This means that functional limitation or restriction which is ‘moderate’ is distinct from that which is ‘severe’ and footnotes (a) and (b) must be read as such. Footnote (b) uses the word ‘regularly’ to describe or qualify a claimant’s ability to work in less demanding jobs, whereas footnote (a) does not. The use of the work ‘regularly’ in footnote (b) must be taken to have been deliberate and intentional. Footnote (a) must, therefore, be read as not including jobs that might fall within footnote (b) as being ones that a claimant is able to do ‘regularly’. To read it otherwise is to ignore Parliament’s deliberate use of the word ‘regularly’ in footnote (b) and to omit it in footnote (a).
27. As to the argument that all jobs have some degree of regularity, the Appellant is conflating two separate issues, namely (i) the proper construction of footnotes (a) and (b); and (ii) whether the work that a claimant is able to do can properly be described as being done ‘regularly’. For the reasons set out in the preceding paragraph, upon a proper construction of footnotes (a) and (b), if a claimant is able to work ‘regularly’, he does not fall within Item 1. As to whether the work he is able to do can properly be described as being done ‘regularly’, that is a different question. The word ‘regularly’ is, as described by Upper Tribunal Judge Wikeley in Secretary of State for Work and Pensions v MG (DLA) [2012] UKUT 429 (AAC), a “protean one, so taking its meaning from its context”. So, by way of example, if a claimant is only able to work 1 day in each year and works, say, on the first day of each January, despite there being some element of a regular pattern, it could hardly be said that he is able to work ‘regularly’. That, however, does not alter the proper construction of footnotes (a) and (b).
28. As to the argument that this frustrates the intention of Parliament to compensate claimants for their loss of earning capacity, once again, the Appellant is conflating the same two issues. As stated above, the scheme was designed to be simple to administer and to “fix sums by quite detailed and precise rules which can be readily interpreted at the first stage by laymen”. This is done by setting out a hierarchy of descriptors providing different levels of disability and, in the context of the present case, by drawing a clear distinction between Items 1 and 2. Contrary to the Appellant’s argument, to read footnote (a) as including the ability to work with some degree of ‘regularity’ would deprive footnote (b) of any practical meaning. That is clearly not what Parliament intended. The Appellant’s concerns as to whether a particular claimant is compensated for his loss of loss of earning is addressed by the fact that issue of a claimant’s ability to work ‘regularly’ is fact specific and each case must be decided on its own particular facts. Again, if a claimant is only able to work one day in each year and works on the first day of each January, Parliament’s intention to compensate the claimant for his loss of earning capacity is addressed by the simple conclusion that, despite there being some degree of a regular pattern, he is clearly not able to work ‘regularly’ and so would fall within Item 1. That conclusion is reached not by construing Item 1 as including some degree of ‘regularity’ but rather by simply concluding on the facts of the case that an ability to only work one day per year, cannot properly be described as ‘regularly’. Of course, as the Court of Appeal later highlighted at §55 of Duncan and McWilliams (albeit in the context of the date at which descriptors are to be assessed - but which, in my view, also applies in the present context), there will always be some difficult cases and arbitrary results which will result in such a scheme and that this “is a consequence of adopting a scheme which enables service men and women to pursue their claim quickly, and whilst they are still in service”. In any scheme that provides for compensation by reference to fixed sums and detailed and precise rules, there is always some degree of trade-off between certainty/predictability and full compensation for all losses. That is not contrary to and does not frustrate Parliament’s intention. Indeed, as the Court Appeal went on to explain “[a]ny stark injustice can be avoided because in an exceptional case even the final award can be reopened where further injuries unexpectedly develop”.
29. I am, therefore, satisfied that the FtT did not err in its approach. Once the FtT determined that the Appellant’s work as a fee paid medical member in the First-tier Tribunal was ‘regular’ (as to which see further below), it was not only entitled, but was compelled to conclude that Item 2 applied.
30. As to the Appellant’s argument that the FtT erred in importing a requirement that Item 1 only applies if a claimant is only able to work ‘intermittently’, as footnote (a) uses the plural ‘jobs’, it clearly allows for the possibility that a claimant might be capable of working intermittently in successive jobs over time but is not able to work ‘regularly’ in one job (or, as the singular generally includes the plural, in more than one job ‘regularly’). This does not mean that the word ‘intermittent’ is to be read into footnote (a) or that Item 1 only applies if a claimant is able to work ‘intermittently’. It simply means that one scenario in which a claimant can be said to not be able to work ‘regularly’ is if he is only able to work ‘intermittently’. Item 1, therefore, might apply where a claimant is able to work ‘intermittently’ but is unable to do so ‘regularly’. As Deputy Upper Tribunal Judge Mark Rowland pointed out, although it is possible for a claimant to be able to do less demanding jobs only ‘intermittently’ but also to be able to do an even less demanding job ‘regularly’, the legislation must clearly be construed so that in such a case the claimant falls within the scope of Item 2, rather than item 1. It cannot have been intended that where two different claimants are able to work regularly in some form of less demanding job but one is also able to work intermittently in a more demanding job (but still less demanding than he could have before the onset of the illness), that claimant should be treated as falling within Item 1 rather than Item 2. The Appellant’s reliance on the words of other descriptors in Table 4 takes the matter no further.
31. I am satisfied that the FtT adopted this approach, and so did not err, when it said at §29 of the SoR that “[b]ased on the evidence before us we conclude that the work is regular in the sense that it is not intermittent” and that Item 1 implies that the “work will not be regular and there may be a series of intermittent roles” (emphasis added). The use of the word ‘may’ makes it clear that the FtT was not importing a requirement that Item 1 only applies if a claimant is able to work ‘intermittently - it was simply highlighting that as one possibility.
Ability to work ‘regularly’
32. The Appellant argues that working one day per week as a fee paid medical member in the First-tier Tribunal does not amount to working ‘regularly’. He further argues that the word ‘regularly’ is context specific and that in the context of work it suggests something akin to five days per week and that if one incrementally reduces from five days per week (which is ‘regular’) to no work at all, there comes a point at which a claimant who works part time can no longer be described as working ‘regularly’. The Appellant says that working three to five days per week could properly be regarded as ‘regular’ but working one to two days per week would no longer be ‘regular’. He further says that Parliament cannot have intended that the ability to work ‘regularly’ is to be determined solely by the frequency of a claimant’s work or the duration of a claimant’s spells of work and he relies on the example of a claimant who works 50 days per year by working one day per week and a claimant who works say 50 days per year by working in blocks of one week or a month. He says that Parliament could not have intended that they be treated differently. Conversely, he argues that Parliament could not have intended to treat a claimant who is only able to work one day per week in the same manner as a claimant who is able to work 5 days a week (the latter being less disabled than the former). In short, he submits that the FtT failed to draw any distinction between full-time and part-time work.
33. There is a good reason why the FtT did not draw a distinction between full-time and part-time work - no such distinction falls to be drawn. No one could properly suggest that a person who works on a part-time basis, say a few hours per day for, say 3-4 days each week, as a shop assistant, waiter or cleaner etc does not have a ‘regular’ job. This not only goes against, the common English linguistic meaning and usage of the word ‘regularly’ (the English Oxford Dictionary defines it as ‘in a steady, predictable, or uniform manner’ and ‘at fixed times or uniform intervals; repeatedly, without interruption; frequently; often) but also goes againt simple common sense. As Deputy Upper Tribunal Judge Mark Rowland pointed out, working for fewer hours is one conventional way of making work less demanding. A person may no longer be able to do a job full time but may well still be able to do the same job or a lesser job ‘regularly’ on a part-time basis (e.g. a few hours per day each week, a few hours per day for a few days each week, or 1 full day each week). Each case would have to be decided on its own facts to determine if such work could, in fact, be described as work that was done ‘regularly’. The Appellant has fallen into the trap of on the one hand saying that the ability to work ‘regularly’ is not to be determined solely by the frequency of a claimant’s work or the duration of a claimant’s spells of work and on the other arguing precisely the opposite, namely that ‘regularly’ can only mean something akin to ‘substantially full-time work’ or only work which is done 3 to 5 days per week. There is nothing advanced by the Appellant to justify such a prescriptive and rigid approach.
34. There is no ‘one size fits all’ definition or test that can be applied and a rigid approach is to be avoided. ‘Regularly’ is a common English word and understood by most. In my view the approach taken by the FtT is correct in that ‘regularly’ generally denotes something other than intermittent, something which is steady and reasonably frequent and tends to be at reasonably uniform intervals. This is not a strict definition. Rather, these are simply relevant factors to be taken into account in the overall assessment. ‘Regularity’ is not to be determined solely by the frequency of a claimant’s work or the duration of a claimant’s spells of work but these are important and relevant factors. The decision maker or tribunal must consider the above factors together with any other relevant factors and by reference to the particular facts and context of the case in order to determine whether a claimant is able to work ‘regularly’. This approach will allow decision makers and tribunals to make fair decisions on a case by case and fact specific basis.
35. This approach would allow decision makers and tribunals to easily conclude in the case of the claimant who is only able to work one day in each year, that he is not able to work ‘regularly’ as it would be entitled to conclude that one day per year was not sufficiently frequent. Alternatively, as Deputy Upper Tribunal Judge Mark Rowland pointed out, some very limited capacity for part-time work only might perhaps simply be disregarded as de minimis.
36. Similary, this approach would leave it to the decision maker or tribunal on a case by case basis to determine (using the Appellant’s example) if a claimant who works, say 50 days per year by working in blocks of one week or a month, can properly be described as being able to work ‘regularly’.
37. As to the Appellant’s argument that Parliament could not have intended to treat a claimant who is only able to work one day per week in the same manner as a claimant who is able to work 5 days a week, there is no proper basis for so concluding. Parliament did not define ‘regularly’ - it could easily have done so. There is nothing in AFCS to exclude part-time work from the ability to work ‘regularly’, conversely there is nothing in AFCS to limit it to only work which is akin to ‘substantially full-time’ work or for a majority of the days per week etc. Quite the opposite, as stated above, working for fewer hours is one conventional way of making work less demanding and so it is fair to conclude that Parliament must have intended that part-time work be included.
38. I am, therefore, satisfied that the FtT did not err in its approach. I am also satisfied that the FtT did not err in concluding on the particulars facts of the case that the Appellant’s ability to work one day per week as a fee paid medical member in the First-tier Tribunal meant that he was able to work ‘regularly’. It was clearly open on the facts and the law for the FtT to conclude that the Appellant working one day per week as a fee paid medical member in the First-tier Tribunal was sufficiently steady, reasonably frequent and at reasonably uniform intervals that it amounted to working ‘regularly’. Again, as Deputy Upper Tribunal Judge Mark Rowland pointed out, it is not relevant that the Appellant was not obliged to commit himself to working as often as he did. Having the ability to reduce his commitment may have itself reduced the stress involved in making the commitment in the first place, but nonetheless the FtT was entitled to find that, as long as he had that right, he was in fact able to work ‘regularly’.
Period to be considered
39. The Appellant asserts that the FtT erred in limiting its consideration only to the period after his discharge from the Navy when it ought to have considered the whole period from “the time of the onset of the illness”. He makes various arguments in support at §§3-16 of his grounds of appeal by reference to an analysis of the grammar and choice of words in footnotes (a) and (b) and the requirement in Duncan and McWilliams to consider the ‘trajectory’ of a claimant’s illness.
40. The Appellant is once again conflating two separate issues, namely (i) the point in time at which the conditions in the relevant descriptor must be met in order for that descriptor to apply; and (ii) the evidence that may be considered in determining whether the conditions in the relevant descriptor have been met.
41. Section 5B(b) of the Pensions Appeals Tribunals Act 1943 provides as follows:
Matters relevant on appeal.
In deciding any appeal under any provision of this Act, the appropriate tribunal—...
(b) shall not take into account any circumstances not obtaining at the time when the decision appealed against was made.
42. Read together with footnotes (a) and (b), the effect of section 5B(b) is that a decision maker or tribunal must assess and determine a claimant’s ability to work as at the date of the Secretary of State’s decision. In Duncan and McWilliams the Court of Appeal confirmed that “the Upper Tribunal was correct in concluding that the relevant date for assessing the injuries and their likely trajectory is the date of the decision and not the date of the initiating injury” (§110) (emphasis added).
43. This is to be contrasted with the evidence that may be considered in determining whether the conditions in the relevant descriptor have been met as at the date of the Secretary of State’s decision. In that respect, the Court of Appeal confirmed that “the decision maker must take account of all the evidence available to him or her when determining the nature and gravity of the injury” (§§47-48). It is axiomatic that ‘all the evidence’ means ‘all relevant evidence’ as there is no obligation to consider evidence which is irrelevant.
44. The FtT can and should take account of all evidence from the date of the onset of the illness to the date of Secretary of State’s decision and indeed, in some cases, evidence which postdates the Secretary of State’s decision if such evidence assists in determining the nature and gravity of the injury as at the date of Secretary of State’s decision - provided the evidence is relevant. By way of example, in a case where ‘permanence’ is in issue, there will be an element of looking forward to the trajectory of the claimant’s illness and consequential limitation and restriction to determine whether any material improvement in his capacity for work is, or was, expected at the date of the Secretary of State’s decision. Even in a case where ‘permanence’ is not in issue, there may be an element of looking at what has happened since the date of the onset of the illness as that may be relevant to assessing the claimant’s ability to work at the date of the Secretary of State’s decision. However, that cannot be determinative of what work a claimant is able to do as at that date. As Deputy Upper Tribunal Judge Mark Rowland pointed out, that is because a claimant may have done more or less work that he was able to do and/or because a state of ‘permanence’ may not have been reached in the earlier part of that period.
45. The FtT’s task in the present case was simple, namely, to determine which of Items 1 or 2 was most appropriate. As there was no dispute that the Appellant’s role as a fee-paid medical member in the First-tier Tribunal was a ‘less demanding job’ than his previous job(s), the FtT correctly identified that the key issue was whether that meant that the Appellant was able to work ‘regularly’. As the Appellant, on his own case, was unable to do his previous job(s) (‘regularly’ or at all) and had ceased doing them at the date of his discharge from the Navy, the various jobs he did between the date of the onset of his illness in 2009 to his discharge in 2017 were irrelevant. On his own case, the only job that the Appellant was in fact doing as at the date of the Secretary of State’s decision was sitting as a fee-paid medical member in the First-tier Tribunal. That was the best evidence of his ability to work ‘regularly’ as at that date. The fact that he could not do his previous job(s) was only relevant to the extent that it meant that he was only able to do a less demanding job’ than his previous job(s). It did not assist him in showing that he did not have the ability to work ‘regularly’ in a ‘less demanding job’.
46. Once the FtT determined that the Appellant’s ability to work one day per week as a fee-paid medical member in the First-tier Tribunal meant that he was able to work ‘regularly’ in a ‘less demanding job’, it was entitled, and as previously stated, was compelled to conclude that the Item 2 applied. Once it had determined that Item 2 applied, that was the end of the matter. As long as Item 2 applied, Item 1 could not apply.
47. It follows that the FtT did not err in its approach to the relevant period and/or evidence to be considered.
48. I should add that the Appellant’s repeated reliance on the concept of ‘trajectory’ is, in my view, misplaced. Duncan and McWilliams concerned cases in which there was more than one injury and the future trajectory of the injury and consequential limitation and restriction was relevant. That was not an issue in the present case.
Remaining Grounds of Appeal
49. I am satisfied that the Appellant’s remaining grounds of appeal are without merit.
50. The Appellant had no right to cross-examine the Secretary of State’s representative (Mr Newman). Mr Newman was not a witness on behalf of the Secretary of State and had not provided any evidence upon which he could be cross-examined. He was there merely to represent the Secretary of State as advocate.
51. It is clear that the FtT had not formed any settled view as to the interpretation of footnote (b). At §27 of the SoR, the FtT expressly states that it did not find the footnotes to Table 3 to be ‘very easy to interpret’ and the analysis at §§27-29 demonstrates that the FtT tried its best to grapple with the proper interpretation of the footnotes. Even if the FtT had formed a preliminary view as to the interpretation of footnote (b), there is in principle nothing wrong with that. A tribunal is entitled to form a preliminary view on the papers provided that it is open to hearing submissions to the contrary and to then make a final determination. The SoR clearly demonstrates that the FtT only made its final determination once it had taken account of the Appellant’s submissions.
52. For the reasons set out at §§30-31 above, there is no merit in the argument that the FtT did not give any indication that “it would rule out Item 1 on the basis that [he] was not working intermittently”. It did not rule out Item 1 on the basis that the Appellant’s work as a fee-paid medical member in the First-tier Tribunal was not intermittent, rather it determined that Item 2 applied because that work demonstrated that the Appellant was able to work ‘regularly’ in a ‘less demanding job’.
53. Similarly for the reason set out at §45 above, there is no merit in the argument that FtT did not give any indication that it would exclude from consideration the Appellant’s “steady decline in [his] capacity for work whilst [he] was still serving”. His decline and inability to do his previous job(s) was irrelevant to determining his ability to work ‘regularly’ in a ‘less demanding job’ as at the date of the Secretary of State’s decision.
54. The Appellant’s alleged discussions with Ms Janet Gregory were irrelevant as (i) the Secretary of State’s position was before the FtT by way of written submissions and oral submissions from Mr Newman; and (ii) Ms Janet Gregory’s subjective view of what ‘regularly’ meant was of little or no relevance to the FtT’s determination as to what it meant as a matter of statutory construction and law. For the same reasons, the argument that the FtT failed to ascertain the Secretary of State’s position as to how he interpreted Items 1 and 2 and footnotes (a) and (b) and so failed to establish the extent of the conflict of opinion, is without merit.
Conclusion
55. For the reasons set out above, I am satisfied that the FtT reached a decision which it was entitled to do on the evidence before it. It directed itself properly on the relevant law, made appropriate findings of fact and gave adequate (and indeed comprehensive and cogent) reasons for its decision.
56. I, therefore, conclude that the decision of the FtT does not involve any material error of law and I dismiss the appeal.
Signed on the original His Honour Judge Najib
On 12 August 2022 Sitting as a Deputy Upper Tribunal Judge
Neutral Citation Number: [2024] UKUT 124 (AAC)
UT Ref: UA-2023-000017-AFCS
IN THE UPPER TRIBUNALADMINISTRATIVE APPEALS CHAMBEROn appeal from First-tier Tribunal (War Pensions and Armed Forces Compensation Chamber)
Decided After And Oral Hearing On 6 December 2023
Decision date: 18 April 2024
B e f o r e :
Upper Tribunal Judge Wright____________________
Between:
MA
Appellant
- v -
The Secretary of State for Defence
Respondent
____________________
Representation: Glyn Tucker of the Royal British Legion for the appellantScarlett Milligan and Chiara Cordone, both of counsel, instructed by Kara Young of GLD for the respondent____________________
HTML VERSION OF DECISION ____________________
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- This is an appeal against the decision of the First-tier Tribunal of 16 September 2022 ("the FTT"). By that decision, the FTT dismissed the appellant's appeal from the specified decision of the Secretary of State for Defence, dated 20 September 2020, that the appellant's neck and back pain was not predominantly caused by service. dated. The FTT decided that the appellant's claim to the respondent was made out of time under article 47 of the Armed Forces and Reserve Forces Compensation Scheme Order 2011 ("the AFCS Order").
- The appeal is dismissed because the appeal is now academic as far as the appellant is concerned and I have been persuaded that the Upper Tribunal should not decide the legal issue on which I gave permission to appeal where the appeal is academic.
- The appeal before the FTT was against the Secretary of State's decision that the appellant's back and neck pain was not caused by service.
- Although time limits for claiming had not been raised by either party as an issue on the appeal, at the outset of the hearing before it the FTT gave notice to the parties that whether the appellant had made his claim in time was a live issue on the appeal: per section 5B(a) of the Pensions Appeal Tribunals Act 1943. No challenge was or is made to this part of the FTT's decision bringing time limits into issue on the appeal.
- It was the appellant's case before the FTT that there was no objective evidence of the appellant having a degenerative/spinal condition until about 2015, which meant that the claim he made in respect of this condition on 31 January 2020 was made in time.
- Having taken evidence from the appellant, the FTT accepted that the appellant had developed cervical disc problems by March 2014. It found that this type of pathology would not be expected in an otherwise healthy 34 year old man and that it was predominantly caused by prolonged or overuse by the appellant of night vision goggles during operational tours flying helicopters.
- However, the FTT "judged that the 2014 condition would likely have been caused before this date and by prolonged/overuse of the [night vision goggles] from [the appellant's] 2008 to 2011 Chinook tours". The FTT therefore decided under article 47 of the AFCS Order that the claim submitted on 31 January 2020 was made out of time as it was made more than 7 years after the condition/injury was caused.
- The FTT recorded that no argument was made to it about a different time limit applying under either article 47(3) or article 48 of the AFCS Order. However, in the FTT's view neither provision could assist the appellant "given his diagnosis pertaining to his cervical disc degeneration was apparent by the 24 March 2014 entry that referred to "C8" and the results of the 2015 MRI". No point was taken on this further appeal about either article 47(3) or article 48.
- I gave the appellant permission to appeal against the FTT's decision on the grounds of appeal made on his behalf. In essence, those grounds argued that the FTT had erred in law in applying article 47(1)(a) of the AFCS Order, which fixes the time limit for claiming from the day the injury occurs, when it should, in the alternative, have applied article 47(1)(d), which runs the time for claiming from the day the service member first seeks medical advice in relation to an illness. The grounds of appeal argued that article 47(1)(d) contemplates an 'injury' that develops or occurs over a period of time, even if initially it was caused by, for example, an infection or trauma on a particular date. Were that not so, it was argued, sub-paragraph (d) would be otiose, as an illness must be caused and develop before medical treatment is sought in respect of it. It was said on behalf of the appellant that one purpose of article 47(1)(d) is to fix a date from which time runs in cases where there would otherwise be no identifiable date and it does so on the premise that it will generally be unreasonable to expect a person to make a claim in respect of a physical or mental disorder before that person realises that he or she is suffering from a problem that justifies seeking medical advice.
- The FTT had rejected these arguments and refused permission to appeal. In holding the grounds to be unarguable, the FTT said that even if the appellant's condition could properly be classified as an illness, the grounds failed to appreciate that the sub-paragraphs in article 47(1) had to be considered together because article 47(1) expressly provides that the 7 year time limit begins "with whichever is the earlier" of the events identified in sub-paragraphs (a) to (d). Article 47(1)(d) was not therefore a separate and stand-alone provision that could apply even if article 47(1)(a) applied and showed an earlier start date for the time for claiming beginning to run. The FTT's reading of article 47 was further supported, it said, by article 2 of the AFCS Order's provision that "'injury' includes illness except in relation to determining eligibility for a fast payment in article 27(1)(a) ".
- In response to this, and in his grounds of appeal made to the Upper Tribunal, the appellant relied on the reasoning in a decision of another First-tier Tribunal. That reasoning, largely set out here in summary, was as follows. (I have placed in bold what seems to me to be the key part of that tribunal's analysis for this appeal.) Logically the first question is whether the condition claimed for is an "illness". Although article 2 of the AFCS Order makes clear that "illness" is a smaller category than "injury", neither of those terms is exhaustively defined within article 2, and it is therefore necessary to look elsewhere in the AFCS Order for other aids to interpretation. A better indication of the difference between "illness" and "injury" is to be found in article 47(1) of the AFCS Order. Subparagraphs (a), (b) and (d) of that article are intended to be mutually exclusive. Whereas subparagraph (a) and (b) contemplate an injury or a worsening of an injury that "occurs" on a particular day (even if it is not always possible precisely to identify that day), paragraph (d) contemplates an injury that develops or occurs over a period of time. Were that not so, subparagraph (d) would be otiose, since an illness must be caused and develop before medical treatment is sought for it.
- In giving permission to appeal, I said (inter alia):
- In his first response to the appeal the Secretary of State argued that the appeal was academic and should be withdrawn as he had "remade the decision and awarded compensation". The Upper Tribunal was invited to direct the appellant to withdraw his appeal, "failing which it should be struck out/dismissed". The Secretary of State's response added that for the avoidance of any doubt, he reserved his position in respect of the substantive issue on the appeal. The response revealed that on 3 April 2023 the Secretary of State had reconsidered the appellant's case afresh and decided it would be appropriate to make an award of compensation to him for his claimed condition of 'back and neck' pain. This was made at Table 9, Item 25, Level 13 of the tariff descriptors in Schedule 3 to the AFCS Order. The response then went on to set out argument for why the legal issue on which I had given permission to appeal need not be determined because the appeal was academic.
- The appellant did not withdraw the appeal and he opposed the Secretary of State's argument that the legal issue for which permission had been given did not need to be decided.
- As a result of this turn of events, I gave further directions on the appeal and for there to be an oral hearing on the appeal. Insofar as is material, those directions stated:
- In his skeleton argument for the hearing of the appeal, the Secretary of State made three central points, as well as setting out further argument for why the appeal was academic.
- First, there had been no appeal by the appellant against the awarding decision of 3 April 2023.
- Second, that awarding decision had been made by the Secretary of State reviewing his decision of 20 September 2020 under article 59 of the AFCS Order.
- Third, and as to article 47(1) of the AFCS Order, he argued as follows:
- The appellant did not make any written response to these arguments. At the hearing of the appeal he maintained the argument that the correct construction of article 47(1) was properly before the Upper Tribunal on this appeal and should be addressed.
- Article 2(1) of the AFCS Order is a provision which sets out how terms in the Order are to be interpreted. It includes:
- Article 47 of the AFCS Order provides, insofar as relevant, as follows:
- Article 48 of the same Order sets out that:
- What is termed "adjudication" is dealt with in Part 7 of the AFCS Order. By article 51 it is for the Secretary of State to determine any claim for benefit and any question arising out of the claim, and that article also provides that reasons must be given for such a decision and claimants informed, inter alia, of the right of appeal conferred by section 5A(1) of the Pensions Appeal Tribunals Act 1943.
- Article 54 of the AFCS Order deals with the finality of decisions. It sets out:
- Article 59 of the AFCS Order is in the following terms:
- Two observations may be apposite in relation to this statutory scheme.
- First, it would appear that the original decision of the Secretary of State not to make an award to the appellant for his 'back and neck pain', dated 20 September 2020, could only be reviewed under article 59: see article 54(2).
- Second, and perhaps more importantly, there would appear to be no provision in either the AFCS Order or the Pensions Appeal Tribunals Act 1943 which deals with (a) the status of First-tier Tribunal decisions in terms of how they affect the Secretary of State's decision under appeal and, (b) relatedly, review of First-tier Tribunal decisions. Therefore case law from social security adjudication which holds that the First-tier Tribunal's decision replaces the Secretary of State's decision under appeal, such as VW v London Borough of Hackney (HB) [2014] UKUT 277 (AAC) (at paragraphs [23]-[25]), may have no application in the field of armed forces compensation adjudication and appeals from decisions made under the AFCS Order. (In war pensions cases, specific provision is made for reviewing a First-tier Tribunal decision: see article 44(3) of the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 2006.)
- There is no doubt that this appeal is academic. By reason of the Secretary of State's decision of 3 April 2023 and the fact the appellant has not appealed against that decision, the appellant has now obtained all he could have obtained had the FTT's decision on his claim being out of time been set aside as being wrong in law on this appeal and the appeal then redecided on the basis that his claim was made in time and his 'back and neck' pain had been caused by service.
- In the circumstances where there is no appeal against the review decision of 3 April 2023, that decision is not before the Upper Tribunal and it is a final decision by virtue of article 54(1) of the AFCS Order. As that decision is not before me and neither party is challenging that awarding decision, and the effect of that awarding decision is to render this appeal academic, I need not address the potentially interesting point, prefaced in the second observation in paragraph 29 above, about the lawfulness of the Secretary of State's ability to review either the First-tier Tribunal's decision or his earlier decision of 20 September 2020 (assuming it survives the FTT's decision). The Secretary of State's position before me was that his decision of 20 September 2020 remained a legally valid and extant decision notwithstanding the FTT's decision, and it was the 20 September 2020 decision (at least) which he reviewed under article 59 of the AFCS Order on 3 April 2023.
- It was further submitted on the Secretary of State's behalf at the oral hearing before me that it was "sufficient for [the Upper Tribunal] to be satisfied that the Secretary of State was lawfully entitled to review his earlier decision, after the 'out of time' decision of the FTT, and decide on the basis of article 59 that both decisions were mistaken and that the claim was made in time and that the 'neck and back pain' injury was caused by service." I am not at all clear that the Secretary of State was legally empowered to review the FTT's decision for ignorance or mistake of material fact. However, as I have already said, the 3 April 2023 decision is not before me, and I am prepared to assume that the Secretary of State was empowered under article 59 of the AFCS Order to review his earlier decision of 20 September 2020. If he was not, because the FTT's decision had replaced that decision, that would leave a deficit in the statutory scheme as the AFCS Order's review powers would seem to contain no power to review a First-tier Tribunal decision.
- As for the correct construction of article 47(1) of the AFCS Order, I decline for the reasons the Secretary of State gives, to decide that issue on this academic appeal. I recognise that this may be an unfortunate consequence in one sense given both parties were represented on this appeal and able to address the competing arguments about the construction of article 47(1). However, this decision may highlight those arguments and, in my judgement, they are better addressed in a case where the resolution of those arguments would make a material difference to whether the claim was made in time or not. I may add that a difficulty with the other First-tier Tribunal's construction of article 47(1) may be how the 'mutually exclusive' construction sits with the "whichever is the earlier of the following days" wording in article 47(1), which would appear to cover all of sub-paragraphs (a) to (d) in that article.
Neutral Citation Number: [2024] UKUT 78 (AAC)
Appeal No. UA-2023-SCO-000139-WP
IN THE UPPER TRIBUNALADMINISTRATIVE APPEALS CHAMBEROn appeal from Pensions Appeal Tribunal (Scotland)
Hearing Date: 22 February 2024Decision Date: 19 March 2024
B e f o r e :
Upper Tribunal Judge Wikeley____________________
Between:
G.A.M.
Appellant
- v -
Secretary of State for Defence
Respondent
____________________
Representation:Applicant: In personRespondent: Mr David Blair of Axiom Advocates, instructed by Morton Fraser MacRoberts LLP____________________
HTML VERSION OF DECISION ____________________
Crown Copyright ©
- The Appellant's appeal against the decision of the Pensions Appeal Tribunal (Scotland) dated 27 September 2023 is refused.
- I held a remote oral hearing of this appeal on 22 February 2024, using the CVP platform. I am satisfied it was a fair and just way of proceeding. There were no technical hiccups or glitches. The Appellant ably represented himself. Mr David Blair, Advocate, appeared for the Respondent, the Secretary of State for Defence (in practice Veterans UK). I am grateful to both the Appellant and Mr Blair for their helpful and well-focussed submissions.
- The Appellant has had two other recent appeals to the Upper Tribunal on other issues (GAM v Secretary of State for Defence (WP) [2024] UKUT 10 (AAC) and GM v Secretary of State for Defence (WP) [2024] UKUT 45 (AAC). Accordingly, and to avoid confusion, I direct that this decision is to be known as GAM v Secretary of State for Defence (No.3).
- The Pensions Appeal Tribunal (Scotland) (referred to in this decision as 'the PAT' or 'the Tribunal') (i) allowed the Appellant's appeal against the Secretary of State's refusal to undertake an any time review of an earlier decision; and (ii) directed the Secretary of State to carry out such a review. The issue raised by this further appeal to the Upper Tribunal is whether the PAT erred in law by not directing the Secretary of State to conduct that anytime review in a specific manner.
- On 17 July 2007, the Appellant submitted a claim (dated 26 June 2007) under the war pensions scheme for two conditions, namely lower back pain and rectal polyp. On 7 February 2008, the Secretary of State accepted that both conditions were attributable to service and assessed the accepted conditions at 1-5%. The Appellant did not appeal that assessment at the time.
- Since then, the Appellant has submitted further claims for other conditions he claims were caused by service. Several of these, but not all of them, have been accepted as attributable to service. The conditions accepted are listed in the Table below. The effective dates of acceptance are noted, so far as they are evident from the papers.
- The Appellant's (current) aggregate interim assessment for all these accepted conditions is 70%. There have also been two further accepted conditions accepted as attributable to service, namely degeneration right knee and bilateral osteoarthritis hips.
- On 31 October 2022, the Appellant asked Veterans UK to review the original decision made on 7 February 2008 (in effect under article 44(1) of the Naval, Military and Air Forces Etc (Disablement and Death) Service Pensions Order 2006 (SI 2006/606) ['the SPO']). In an e-mail he wrote:
- Veterans UK refused to carry out a review as requested and informed the Appellant of this by emails dated 9 and 13 February 2023. The latter e-mail asserted that "we can only consider conditions from the time they are actually claimed; we are not able to consider any condition before the date it was formally claimed… I regret you do not have any appeal rights against this as it is not a claim decision". Undeterred, the Appellant lodged an appeal with the Tribunal. Before the PAT the Secretary of State then submitted that the Appellant was out of time to appeal the 2008 decision and had no right of appeal against the e-mail dated 13 February 2023. The Secretary of State accordingly applied for the appeal to be struck out.
- On 20 April 2023 the PAT ruled that a refusal to review under Article 44(1) and a decision to maintain an earlier decision under Article 44(6) carried appeal rights, citing Secretary of State for Defence v RC (WP) [2012] UUT 229 (AAC); [2013] AACR 4. The Tribunal therefore refused the Secretary of State's strike out application.
- The Tribunal held a video-hearing of the Appellant's appeal on 27 September 2023.
- The Tribunal summarised the Appellant's case as follows:
- The Tribunal summarised the Secretary of State's case in the following terms:
- Having made a series of uncontroversial findings of fact about the chronology, the Tribunal went on to allow the Appellant's appeal against the Secretary of State's refusal to undertake an anytime review of the decision dated 7 February 2008 to assess the accepted conditions of lower back pain and rectal polyp at 1-5%. The Tribunal proceeded to explain its reasoning in the following terms (with a footnote omitted):
- I should add, by way of explanation, that Mr Ferguson (who is referred to in paragraph [54] of the Tribunal's decision), represented Veterans UK at the PAT hearing.
- Judge Caldwell KC, the President of the Pensions Appeal Tribunals for Scotland, summarised the Appellant's grounds of appeal in the following terms:
- Granting permission to appeal, the President also observed as follows:
- I hope I do both parties' no disrespect when I say I need only summarise their respective submissions before the Upper Tribunal. I have, of course, taken all their arguments into consideration.
- The principal thrust of the Appellant's case was his submission that there was sufficient evidence on his service medical file in 2007 to support findings at the time that he suffered from other conditions in addition to the two specific conditions in respect of which he had made his original war pensions claim. The Appellant emphasised that it had been the duty of the Veterans UK Medical Adviser (MA) to look at all the conditions which he could potentially claim for on the basis of the medical evidence on file (see AL v Secretary of State for Defence (WP) [2016] UKUT 141 (AAC)). He argued, in short, that if "the MA had done his job properly in 2007 we wouldn't have needed to have this conversation now". As such, the Appellant contended, the Tribunal should have had regard to the wider issues. Accordingly, the PAT should have directed the Secretary of State on review to consider all the potential conditions disclosed by the available evidence in 2007, and not just the two conditions claimed for.
- Mr Blair, for the Respondent, adopted a much narrower approach. Building on the Secretary of State's written response to the appeal, he submitted that there were essentially just two issues before the PAT, namely (1) whether it had jurisdiction to hear the appeal; and (2) if it did, whether the Secretary of State was entitled to refuse to carry out a review in terms of Article 44 of the SPO. The Tribunal answered both of those questions in the Appellant's favour and directed the Secretary of State to carry out a review of the decision of 7 February 2008 under Article 44. Having taken that step, that exhausted the appellate function of the Tribunal. Mr Blair submitted it was not within the scope of the Tribunal's powers to make orders as to the manner of any review which ought to take place. If the Secretary of State duly carries out a review and the Appellant considers that his approach was unlawful, that is a matter which can be raised by way of fresh appeal to the Tribunal at that stage. It is not the role of the PAT to enter into the regulation or choreography of procedure before the Secretary of State.
- In reply, the Appellant questioned why the Secretary of State's consideration of the 2007 claim had ignored evidence on his service file of other medical conditions. He argued that Mr Blair's submission was a recipe for further dithering and delay, with the inevitable result that we would be back in the Upper Tribunal in three years' time arguing about the same issues, given the likely outcome of the Secretary of State's review and any subsequent appeal to the PAT.
- I start with an observation about an unusual feature of this appeal. This is a case in which the Appellant succeeded before the PAT. As Mr Blair noted, the Appellant succeeded on both points – first, that the Tribunal had jurisdiction to hear his appeal and, secondly, that it directed the Secretary of State to conduct an anytime review. The general rule is that because an appeal only lies against a judgment or order, a successful party may not appeal in order to challenge particular findings or aspects of the court or tribunal's reasoning (Lake v Lake [1955] P 336). At first sight the Appellant's case does not fall within any of the recognised exceptions to that principle, unless possibly it is one of those exceptional cases that goes to jurisdiction (cf Secretary of State for Work and Pensions v Morina [2007] 1 WLR 3033). However, we are where we are. The PAT has given permission to appeal. Mr Blair for the Respondent has not taken the point that I have belatedly raised and it was not canvassed during the oral hearing. As such, it is only fair and just to consider the appeal as having been properly made.
- Having done so, however, I am satisfied that the PAT's decision does not disclose any material error of law. The Tribunal correctly identified the narrow issue raised by the appeal as being the Secretary of State's refusal (dated 9 and 13 February 2023) to undertake an anytime review of the original decision of 7 February 2008 (reasons at [23]; see also [41]). As such, the Tribunal ruled that the scope of the MA's duties (in 2008) and the merits of the anytime review application (in 2023) "were not matters for any detailed discussion at this hearing" (reasons at [37]). I agree with Mr Blair that the Tribunal was accordingly not concerned with how that review was to be carried out and/or its lawfulness. It was both inappropriate and premature for the PAT to have undertaken any assessment of the potential lawfulness of a review decision which had yet to be taken. Indeed, it would have been an error of law for the PAT to have proceeded in that manner. As Mr Blair put it, the prolonged procedural history of this case could not justify the PAT dealing with matters ahead of the Secretary of State – for the Tribunal to make an order directing that the review be conducted in a particular way would be to pre-empt a decision that would carry its own appeal rights.
- The fundamental point is that the PAT determines appeals against particular decisions by Veterans UK, no more and no less. In the present case that was a decision refusing to conduct an anytime review. The Tribunal does not have an ongoing supervisory function in relation to the way that the Secretary of State discharges his statutory functions. The primary focus of the PAT is therefore on the particular decision under appeal, and not the individual's case in the round. It follows that the war pensions adjudication and appeals machinery is concerned with specific decisions on entitlement and assessment, rather than on the individual veterans whose cases are the subject of those decisions. The same distinction is evident in the wider civilian benefits system. As I have explained in a social security decision (GJ v Secretary of State for Work and Pensions (PIP) [2022] UKUT 334):
- The PAT in the present appeal did precisely that and its decision discloses no material error of law.
- I therefore dismiss the Appellant's appeal.
[2024] UKUT 92 (AAC)
UT ref: UA-2021-000795-AFCS
IN THE UPPER TRIBUNAL
ADMINISTRATIVE APPEALS CHAMBER
On appeal from First-tier Tribunal (Social Entitlement Chamber)
Between:
GE
Appellant
- v –
The Secretary of State for Defence
Respondent
Before: Upper Tribunal Judge Wright
Decision date: 28 March 2024
Decided after an oral hearing on 6 October 2023
Representation: Simon Cheetham KC of counsel for the appellant
Jennifer Seaman of counsel for the respondent
DECISION
The decision of the Upper Tribunal is to dismiss the appeal.
REASONS FOR DECISION
Introduction
1. This is an appeal against the decision of the First-tier Tribunal of 19 July 2021 ("the FTT"). By that decision, the FTT dismissed the appellant's appeal from two specified decisions of the Secretary of State for Defence dated 11 February 2020. Those decisions were stated to be that: (i) the appellant's Guaranteed Income Payment was put into payment with effect from 13 July 2019, and (ii) the criteria to carry out an article 59 review were not met.
2. The essence of the appellant's case to the FTT, as it summarised in its decision, was that he should have been granted the Guaranteed Income Payment from the date of his claim in July 2015 as he had not been earning his full salary as reservist since that date. The appellant's argument was, and remains, that it was unfair that a regular member of the armed services who would have been discharged due to ill health was able to qualify for the Guaranteed Income Payment on discharge, whereas the appellant was not able to do so when his ill health had reduced his ability to earn his full salary as a reservist and as a civilian.
3. The FTT rejected the appellant's argument that he ought to have qualified for the Guaranteed Income Payment from July 2015. It relied on articles 16(10) and 64 of the Armed Forces and Reserve Forces Compensation Scheme Order 2011 ("the AFCS Order") and found in essence, that entitlement to the Guaranteed Income Payment could only arise after a service member's service in the armed forces had ended. As the appellant's service had not ended until 12 July 2019, he could not qualify for the Guaranteed Income Payment on or before that date and so he could not have qualified for that payment at the July 2015 date of claim. In so concluding, the FTT rejected the appellant's argument that article 64(1)(c) of the AFCS Order should be interpreted to mean that the appellant could receive the Guaranteed Income Payment.
4. I can identify no error of law in the FTT's construction of the relevant law. Indeed, in my judgment the construction the FTT adopted of the wording in the statutory scheme was the only correct one.
5. The Chamber President of the War Pensions and Armed Forces Compensation Chamber of the First-tier Tribunal, Judge Monk, when giving the appellant permission to appeal in order to obtain guidance from the Upper Tribunal "on the proper approach to Article 64 for appellants who have been members of the Reserve Forces", stated that she did not think the FTT had erred in law as it applied the provisions of article 64. I agree.
6. Arguments about whether the grounds for carrying out a review under article 59 of the AFCS Order as to the correct start date for payment of the Guaranteed Income Payment add nothing, as Mr Cheetham fairly accepted before me, and the ground relating to whether the FTT had erred in law in its decision on article 59 were not pursued at the hearing before me.
Relevant factual background
7. The appellant served as a regular member of the Army from around 1993 to 1998. He then joined the Army Reserve as a member of the reserve forces. At the same time as serving in the Amy Reserve, he worked as an anaesthetist in the NHS. The appellant rose to the rank of Colonel as a reservist doctor in the Defence Medical Services.
8. It is not disputed that appellant retired from the Armed Services on 12 July 2019.
9. On 15 February 2016, the appellant submitted a claim under the Armed Forces Compensation Scheme for Post Traumatic Stress Disorder ("PTSD"). An interim award was made to him for PTSD under the AFCS Order, at table 3, item 4, level 12, for two years. On 15 January 2019, the appellant was accepted as having a permanent mental disorder and was made a final award under the AFCS Order at table 3, item 2, level 8, which meant an increased award. This entitled the appellant to a lump sum of £61,800.
10. Under article 16(7) of the AFCS Order, an award at level 8 also entitled the appellant to a Guaranteed Income Payment, calculated under article 24 of the same Order. However, relying on article 64 of the AFCS Order, the respondent wrote to the appellant on 12 March 2019 and informed him that he was no yet eligible to receive a Guaranteed Income Payment because he was still serving and had not been discharged from service. On the ending of the appellant's service on 12 July 2019, the respondent wrote to the appellant on 14 August 2019 to confirm that a Guaranteed Income Payment of £54,751.61 would be payable with effect from 13 July 2019. It is that decision, and the failure of the respondent to review it, which the appellant appealed to the FTT.
11. The appellant's case before the FTT was that he had been a reservist for 19 years with 2 Medical Brigade until he retired on 12 July 2019. He was 'called up' for service in 2013 and was released from his call out notice on 5 August 2014. The appellant continued as Commissioned Officer in the Army Reserve working as a consultant anaesthetist. He was then deployed to Afghanistan where he was diagnosed with PTSD. He do not earn a military salary between January 2017 and January 2018. The appellant returned to military service as a reservist in January 2018, but in a lower commitment role, until he retired from service some 18 months later on 12 July 2019.
12. The appellant's argument to the FTT was that the intention of the Guaranteed Income Payment was income replacement and that withholding that payment to him when his earning capacity (both military and civilian) had been reduced due to his ill-health defeated that intention. Article 64(2)(c) of the AFCS Order applied to him and allowed the Guaranteed Income Payment to be paid to him from the date of his claim in July 2015, even though he had remained in service after that date. The appellant further argued that not to make the Guaranteed Income Payment to him from July 2015 was unfair as, compared to his peers in the regular Armed Forces, his earnings fluctuated after that date whereas the equivalent regular member of the Armed Forces would have their (military) earnings preserved until they were discharged from service. So to treat him was contrary to the express terms of the policy found in the Armed Forces Covenant of establishing parity between the reserve and regular forces. In the alternative, the appellant argued that article 64(2)(b) of the AFCS Order should be construed to cover his service ending when he was released from call out for service on 5 August 2014.
13. The FTT rejected these arguments. It was article 64(2)(b) which applied to the appellant and that meant that Guaranteed Income Payment was only payable from when his service ended, which was on 12 July 2019. This, moreover, was reinforced by the terms of article 16(10) of the AFCES Order which did not allow the Guaranteed Income Payment to be payable before the end of service.
Relevant law
14. Section 1(1) of the Armed Forces and Pensions Act 2004 provides that:
"The Secretary of State may by order establish schemes which, in respect of a person's service in the armed forces, provide-
(a) for benefits, in the form of pensions or otherwise, to be payable to or in respect of him on termination of service or on death or retirement, or
(b) for payments to be made towards the provision of such benefits.
Such a scheme is referred to in this Act as an armed forces pension scheme."
15. Under Article 15(1)(c) of the AFCS Order a benefits payment for injury includes "a guaranteed income payment payable until death."
16. Crucially, however, Article 16(10) of the AFCS Order sets out that a:
"Guaranteed income payment is not payable until the day after the day on which the service of the member to whom it was awarded ends, and no such payment is payable in respect of any period before that day."
17. Under Article 2(1) of the 2011 Order:
"service" is defined as "service as a member of the forces".
"member" means "a member of the forces"
"forces" means "the armed forces and the reserve forces" (the underlining is mine and has bene added for emphasis).
"guaranteed income payment" "is the payment referred to in article 15(1)(c) and determined in accordance with article 24.
18. Article 24 of the AFCS Order deals with how the amount of the Guaranteed Income Payment is to be calculated. The amount includes a calculation of the "relevant salary". Under Article 24(6)(b), the "relevant salary" is:
"......the salary of a member on the day on which the member's service ends or in the case of a former member, the salary on that day up-rated for inflation to the date of claim." (again the underling is mine for emphasis)
19. Article 4(1) of the AFCIS Order, as modified for members of the reserve forces by Schedule 2, paragraph 2, defines 'salary' as (the underlining has again been added by me for emphasis):
"(a) the basic pay payable at the rate of a regular member of the forces who is of equivalent substantive rank, or acting rank, as the case may be, and seniority;
(b) an amount which represents any reservist's award to which the member is entitled on the day the member leaves the service by virtue of being in relevant service on that day;
(c) where the member is not in relevant service on the day the member leaves service, an amount which represents any reservist's award to which there would have been an entitlement had the member been in relevant service on that day; and
(d) any other amount if and to the extent that the Defence Council have determined that it is to be treated as salary."
20. Under Article 2 of the AFCS Order, as modified by Schedule 2, paragraph 1 for members of the reserve forces "relevant service" has the same meaning as in regulations made under sections 83 and 84 of the Reserve Forces Act 1996.
21. By regulation 2 of the Reserve Forces (Call-out and Recall) (Financial Assistance) Regulations 2005,, "relevant service" is defined as:
"permanent service on or after 14th April 2005-
(a) Under Part IV of the 1996 Act [Special agreements for call out];
(b) Under a call-out or recall order;
(c) By a person called out or recalled under the Reserve Forces Act 1980 or under any other call-out or recall obligations of an officer;
But shall not include any period in which the reservist is serving a term of imprisonment or detention under the sentence of a court-martial or a court of law in the British Islands or any colony."
22. Along with Article 16(10), Article 64 of the AFCS Order is of central importance. It governs the date on which awards of benefit become payable, and provides insofar as relevant as follows (again, I have underlined parts for emphasis):
"...(2) Subject to paragraphs (5) and (6) an award of guaranteed income payment becomes payable -
(a) where a member is discharged from the forces on medical grounds and the award is for the injury which caused the member to be discharged on medical grounds, on the day after the discharge;
(b) where a member is awarded injury benefit which includes an award of guaranteed income payment, on the day after the day on which the member's service ends;
(c) in any case where sub-paragraph (a) or (b) does not apply, on the date of claim."
...(5) Subject to article 16(10), an award—
(a) revised under article 53 becomes payable on the date of claim;
(b) revised under article 55 becomes payable on the day after the member's service ends;
(c) revised under article 56 or 57 becomes payable on the date the application for review is sent to the Secretary of State;
(d) subject to paragraph (6), revised under 59 becomes payable—
(i) on the date the application for review is sent to the Secretary of State; or
(ii) where no application for review has been made, the date on which the decision in relation to the revised award is made."
23. I was also shown the Explanatory Notes to the AFCS Order. I am mindful of the limited value that such Explanatory Notes may have in interpreting the meaning of statutory provisions: per paragraph [30] of R(O) v SSHD [2022] UKSC 3; [2023] AC 255. As Lord Hodge pointed out at paragraphs [29] to [31]:
"29. The courts in conducting statutory interpretation are "seeking the meaning of the words which Parliament used": Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591, 613 per Lord Reid of Drem. More recently, Lord Nicholls of Birkenhead stated:
"Statutory interpretation is an exercise which requires the court to identify the meaning borne by the words in question in the particular context."
(R v Secretary of State for the Environment, Transport and the Regions, Ex p Spath Holme Ltd [2001] AC 349, 396).
Words and passages in a statute derive their meaning from their context. A phrase or passage must be read in the context of the section as a whole and in the wider context of a relevant group of sections. Other provisions in a statute and the statute as a whole may provide the relevant context. They are the words which Parliament has chosen to enact as an expression of the purpose of the legislation and are therefore the primary source by which meaning is ascertained. There is an important constitutional reason for having regard primarily to the statutory context as Lord Nicholls explained in Spath Holme, 397:
"Citizens, with the assistance of their advisers, are intended to be able to understand parliamentary enactments, so that they can regulate their conduct accordingly. They should be able to rely upon what they read in an Act of Parliament."
30. External aids to interpretation therefore must play a secondary role. Explanatory notes, prepared under the authority of Parliament, may cast light on the meaning of particular statutory provisions. Other sources, such as Law Commission reports, reports of Royal Commissions and advisory committees, and Government White Papers may disclose the background to a statute and assist the court to identify not only the mischief which it addresses but also the purpose of the legislation, thereby assisting a purposive interpretation of a particular statutory provision. The context disclosed by such materials is relevant to assist the court to ascertain the meaning of the statute, whether or not there is ambiguity and uncertainty, and indeed may reveal ambiguity or uncertainty: Bennion, Bailey and Norbury on Statutory Interpretation, 8th ed (2020), para 11.2. But none of these external aids displace the meanings conveyed by the words of a statute that, after consideration of that context, are clear and unambiguous and which do not produce absurdity. In this appeal the Page 11 parties did not refer the court to external aids, other than explanatory statements in statutory instruments, and statements in Parliament which I discuss below. Sir James Eadie QC for the Secretary of State submitted that the statutory scheme contained in the 1981 Act and the 2014 Act should be read as a whole.
31. Statutory interpretation involves an objective assessment of the meaning which a reasonable legislature as a body would be seeking to convey in using the statutory words which are being considered. Lord Nicholls, again in Spath Holme, 396, in an important passage stated:
"The task of the court is often said to be to ascertain the intention of Parliament expressed in the language under consideration. This is correct and may be helpful, so long as it is remembered that the 'intention of Parliament' is an objective concept, not subjective. The phrase is a shorthand reference to the intention which the court reasonably imputes to Parliament in respect of the language used. It is not the subjective intention of the minister or other persons who promoted the legislation. Nor is it the subjective intention of the draftsman, or of individual members or even of a majority of individual members of either House. ... Thus, when courts say that such-and-such a meaning 'cannot be what Parliament intended', they are saying only that the words under consideration cannot reasonably be taken as used by Parliament with that meaning."
24. The Explanatory Notes to the AFCS Order state as follows:
"...The Scheme provides for benefits to be payable to or in respect of a person by reason of illness or injury (whether physical or mental), or death, which is caused (wholly or partly) by service in the armed forces or the reserve forces. ....Guaranteed income payment is payable for more serious injuries. There are four bands - 100%, 75%, 50% and 30%. The payment commences when service ends, or from the date of claim, if later, and is payable for life. The amount of guaranteed income payment is calculated by means of a formula based on the age of the member of the forces when service ends or at the date of claim, if later." (underling once more added for emphasis)
Discussion and conclusion
25. The answer on this appeal, with respect, is obvious and can be stated quite shortly. It is the one the FTT gave.
26. The wording of the statutory scheme plainly and clearly provides that a Guaranteed Income Payment is only payable once service ends. That is what the words of article 16(10) of the AFCS Order say. To have awarded the appellant (that is, made payable to him) the Guaranteed Income Payment for the period before his service in the Armed Forces ended on 12 July 2019 would be contrary to article 16(10) and, accordingly, unlawful as having no statutory basis. No recourse is needed to the Explanatory Notes because, per R(O), when considered on its own and in the context of the statutory scheme as a whole, the wording of article 16(10) is clear and unambiguous and does not create any statutory absurdity. For all members of the Armed Forces - regular as well as reserve members, see article 2(1)(c) of the AFCS Order - if they qualify for a Guaranteed Income Payment it can only become payable from when their service ends. All the Explanatory Notes do is to confirm the plain meaning of the statutory text.
27. Moreover, the context provided by the rest of the relevant provisions in the AFCS Order reinforce, and are obviously consistent with, the direction in which article 16(10) clearly points. No distinction is drawn by the AFCS Order in terms of 'service' between service as a regular member of the Armed Forces and service in the reserve forces: article 2(1)(c). Further, the calculation of the Guaranteed Income Payment is based on the service member's salary on the day when their service ends. If the Guaranteed Income Payment were to be payable before the end of service, it is unclear what the statutory basis would be for calculating the Guaranteed Income Payment for the period before the service in fact ends.
28. Nor does article 64(2)(c) of the AFCS Order point persuasively against the Guaranteed Income Payment only becoming payable from the point service in the Armed Forces ends. Firstly, the appellant's case came within article 64(2)(b) and, as a result, and for that reason alone, article 64(2)(c)'s opening words of "in any case where sub-paragraph (a)m or (b) does not apply", precluded sub-paragraph (c) from applying. Secondly, Article 64 must be read consistently with the rest of the provisions in the AFCS. So read, article 64(2)(c) cannot confer a right to be paid the Guaranteed Income Payment from a date of claim where that claim was made before the end of service as such a reading would plainly be inconsistent with article 16(10). What article 64(2)(c) is therefore addressing is cases not covered by sub-paragraphs (a) or (b), but this benign fact alone cannot mandate a reading of sub-paragraph (c) to confer payment of a Guaranteed Income Payment which is expressly precluded by the rest of the statutory scheme. In fairness, Mr Cheetham accepted before me that the appellant's reliance on article 64(2)(c) was not sustainable given the terms of article 16(10) of the AFCS Order.
29. I may add, though I heard little or no argument on this, that it may be difficult to read the language of section 1(1)(a) of the Armed Forces and Pensions Act 2004 as providing the vires for an AFCS Order conferring a benefit to be payable in respect of a period before termination of service or retirement. However, it may be said that all section 1(1)(a) is concerned with is the point at which the benefit may be payable rather than from when it is payable.
30. Given the clear meaning of the wording in the statutory scheme, I do not consider general arguments about fairness assist in construing that wording. In any event, it may be thought fair that both regular and reserve members of the Armed Forces are treated in the same way in terms of when a Guaranteed Income Payment becomes payable.
31. Nor do I find the argument around the Guaranteed Income Payment being an 'income replacement' benefit of any great help in construing the statutory words of the AFCS Order. The intention as to how that income replacement was to be effected still has to depend on construing the words in their relevant statutory context. And the income replacement 'purpose' or 'intendment' is rationally consistent with the Guaranteed Income Payment being (i) calculated based on the service member's income, and (ii) compensating for the loss of income once that person has left, or had to leave, service.
32. Lastly, I do not consider the appellant's argument based on his being released from call out for service on 5 August 2014 assist him as he returned to service (including serving in Afghanistan) after this date. I pressed Mr Cheetham on this point at the hearing and about what 'service ends' means in the context of being released from call out. He (rightly) accepted it could not just mean when the call up ends, as the reservist may continue (and continue to be able to continue) to be in service as a reserve member of the Armed Forces long after this release date. The appellant's argument was that the release from call up would have to coincide with the reserve service member no longer being capable of carrying out their functions as a reserve forces member. However, that circumstance is covered by article 64(2)(a) of the AFCS Order and so removes the need to read article 64(2)(b) as also covering this situation. Given this, article 64(2)(b) of the AFCS Order must be covering a different situation, and that situation is where the (reserve) service member ends their service in the Armed Forces, here by the appellant retiring. Moreover, if the appellant's 'release from call up' situation was intended to allow the Guaranteed Income Payment to become payable the AFCS Order (i) could have said so, (ii) would need to be modified so as to explain how the Guaranteed Income Payment was to be calculated in such a circumstance.
Approved for issue by Stewart Wright
Judge of the Upper Tribunal
On 28 March 2024
GM v SSD (WP)
[2024] UKUT 45 (AAC)
UT Refs: UA-2023-SCO-000075+76-WP
IN THE UPPER TRIBUNAL
ADMINISTRATIVE APPEALS CHAMBER
On appeal from Pensions Appeal Tribunals for Scotland
Between:
GM
Appellant
- and –
The Secretary of State for Defence
Respondent
Before: Upper Tribunal Judge Wright
Decision date: 7 February 2024
Decided after a remote oral hearing on 22 November 2023.
Representation: The appellant represented himself
Mr Blair, advocate, represented the respondent
DECISION
The decision of the Upper Tribunal is to allow the appeal. The decision of the Pensions Appeal Tribunals for Scotland made on 12 June 2023 under case numbers PATS/A/20/0209 and PATS/A/22/0047 involved making of material errors of law. Under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007, I set that decision aside and remit the appeals to be reconsidered by a completely freshly constituted tribunal, at an oral hearing.
REASONS FOR DECISION
1. These are two appeals from a combined decision of the Pensions Appeal Tribunals for Scotland ("PATS") dated 12 June 2023, following a hearing on 15 May 2023, from decisions of the Secretary of State for Defence. By its decision, the PATS refused the appeals and upheld, as the PATS described it, the Secretary of State's decision of 12 November 2020 as revised on 26 July 2022. The effect of those Secretary of State decisions, again as described by the PATS, was:
- a final assessment of nil % for the condition Bilateral Noise Induced Sensorineural Hearing Loss (1998-2003) accepted as attributable to service for the periods from 3 August 2020, and
- an interim assessment of 70% for the conditions Lumbar Disc Disease, Rectal Polyp, Post Traumatic Stress Disorder, Bilateral Knee Pain, Injury to Ribs (2000) and Inversion Injury Right Ankle (1999) and Non-Freezing Cold Injury Foot - Bilateral, accepted as attributable to service for the period 3 August 2020 to 30 August 2021.
It was noted by the PATS that a separate assessment appeal was lodged for the period 31 August 2021.
2. The PATS recorded in paragraph 4 of its decision that the matters the appellant took issue with "were the level of assessment awarded did not properly reflect the degree of disability for PTSD and Bilateral Knee Pain". For the reasons which follow, I am satisfied that was material misdescription of the issues the appellant was raising on the two appeals. It is trite law that a PATS must deal with all issues raised by the appeal: see section 5B(a) of the Pensions Appeal Tribunals Act 1943.
3. The PATS noted, under the "Service and Claims Record" part of its decision, that the appellant had separate outstanding appeals before the PATS concerning (i) a War Pensions Mobility Supplement, (ii) Abatement of Unemployed Supplement, and (iii) entitlement in respect of rejected conditions including, by way of example, weak left ankle and osteoarthritis to both hips. Care therefore needed to be taken to make sure that what was under appeal in the two appeals before the PATS in these proceedings was properly identified and kept clearly in focus. My essential reason for allowing these two appeals is the failure of the PATS to do this.
4. The structure of the PATS combined decision then set out the appellant's case, as described by the PATS. This covered the appellant's arguments and evidence about his bilateral knee pain and his PTSD. I need not set out all of this evidence as recorded by the PATS. Excerpts from it will suffice. The appellant told the PATS he was no longer able to do straight line exercises in the gym and had not been able to do so "at the time of the Secretary of State's determination and revised decision". In July 2021 he had moved to a house which had fewer stairs than the flat he had lived in before. At the time of the decision he had driven a manual car, but had since sold it. He had sleep disturbance caused by his PTSD and was still taking 2 tramadol and 2 quetiapine tablets to help his sleep. The appellant "did not have and does not have a coping strategy". Reference was made by the appellant to a letter from a consultant psychiatrist dated 28 January 2021 which described the appellant's complaint of sleep disturbance related to nightmares about his time in service and that he slept for about an hour and he would become very agitated in bed. The letter went on to say that the appellant struggled to get back to sleep and would spend much of the day feeling exhausted from the lack of sleep. The letter asked the GP to prescribe quetiapine. A further letter, of 30 June 2021, repeated the problems caused by PTSD but said that the appellant was feeling great relief from the nocturnal symptoms of PTSD, seemingly because quetiapine had been prescribed. The appellant accepted there had been a temporary relief "but that was no longer the case". He told the PATS he experienced daily flashbacks.
5. The PATS next set out its description of the Secretary of State's case. The Secretary of State's representative had no questions for the appellant. He submitted that the 70% assessment was the correct assessment and of the two main conditions principally discussed (knees and PTSD), PTSD accounted for the lion's share at 40%. The Secretary of State's representative submitted that the appellant's "condition had not improved nor was there any significant increase in symptoms since the Secretary of State's decision on revisal".
6. The PATS consideration in deciding the appeal (i.e. its central reasoning) was, insofar as immediately relevant, as follows:
"55. The appellant had more than one injury and we made a composite assessment of the degree of disablement by reference to the combined effect of his injuries as required by Article 42(2)(c) of the SPO 2006.
56. We followed the guidance... in [NH v SSD [2015] UKUT 35 (AAC)] taking into account the prescribed degrees of disablement in Part V of Schedule I of the SPO 2006.
57. We also followed the guidance provided....in [AM v SSD (WP) [2013] UKUT 97 (AAC)] on the assessment of disablement in cases where there are interacting or overlapping disablements.....
59. We applied the degree of disablement as at 22 July 2022 being the date of the last review by the Secretary of State.
60. Disablement is defined in para 27 of Schedule 6 to the SPO 2006 as "physical or mental injury or damage or loss of physical or mental capacity".
61. We assessed the appellant's disablement not on conditions or injuries.
62. As [the appellant] suffers from a number of injuries we assessed the degree of disability as a composite assessment as required by Article 42(2)(c).
63. We recognised that disabilities may interact or overlap with each other so the composite assessment reflects our finding and may be greater or less than the assessments that would have been made if we had assessed each condition or injury separately.
64. We believe there was some exaggeration on the part of [the appellant], for example, his daily water consumption, but were of the view that this flowed from his keenness to communicate his level of suffering in relation to PTSD and knee problems and no other reason. When asked about his other conditions he indicated they were not causing him any particular problems. We accordingly formed the view that [the appellant] was a credible and reliable witness.
65. Mr Ferguson for Veterans UK maintained that the 70% composite assessment was the appropriate assessment and no attempt was made to suggest a lower assessment should be awarded.
66. We took into account the interaction between the accepted conditions and the unaccepted condition Hip injury problems.
67. We considered the 70% assessment to more than adequately reflect the level of [the appellant's] disability when the Secretary of Stater made the decision to award that assessment."
7. This is largely about the 'how' of the PATS's approach to the making of its decision and says very little, if anything, of 'why' the PATS concluded that the 70% assessments were correct on the evidence before it at the time of the two decisions before it.
8. This is reflected in Upper Tribunal Judge Hemingway's grant of permission to appeal of 31 July 2023, where he said the following of relevance:
"3. In seeking permission from the F-tT the applicant set out his contentions in various e-mails. But the bulk of what he had to say amounted to and did not go beyond factual assertion and re-argument with the F-tT's conclusions. Such material, of itself, is not capable of showing legal error on the part of the F-tT. In his renewed application to the Upper Tribunal, the appellant asserted the F-tT had erred through failing to give adequate reasons; through failing to resolve conflicts "of fact or opinion"; and through attaching weight to immaterial matters. made its decision.
4. I cannot see any arguable basis for thinking the F-tT might have attached weight to immaterial matters and the appellant does not, in his grounds to the Upper Tribunal, identify the matters he has in mind. Nor can I see any unresolved conflicts with respect to the F-tT's findings or conclusions and, again, the appellant does not specify any. But with respect to the F-tT's conclusion that the interim assessment of 70% was correct, I consider it arguably erred through failing to adequately explain how its findings (set out from paragraph 45 to 52 of the written reasons) and its understanding of how the law was to be applied and its explanation of the evaluative processes it went through (paragraphs 53 to 63) led to that conclusion. On one view, what was said from paragraph 64 to 67 amounted to a statement of a conclusion but not an explanation for it."
9. Despite the arguments of the Secretary of State, I consider the PATS did err in law in failing to provide any adequate reasons for its decision(s) upholding the Secretary of State's decisions of, what were said to be, 12 November 2020 and 22 July 2022.
10. The essence of the Secretary of State's argument that the PATS reasoning is adequate is an argument based on DS v SSD (WP) [2016] UKUT 51 (AAC) (at paragraph [23]) and CT v SSD [2009] UKUT 167 (AAC) (at paragraphs [33] and [36]). It is an argument that the PATS is an expert tribunal in whose expert judgment the Upper Tribunal should be slow to interfere and that it may not be possible to explain percentage assessments with any precision.
11. The relevant passage in DS reads as follows:
"24.... 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.
(The underlining is mine and has been added for emphasis.)
12. It is worth putting the passages relied on by the Secretary of State in CT in the slightly wider context of what was said in that decision.
"24. The making of an assessment cannot be done with precision and does not have to be. For assessments over 20%, it is only necessary to assess within 10% bands (article 42(5)). Even choosing between those bands involves deciding in relatively broad terms. And the assessment may involve an element of impression. However, the tribunal must avoid the temptation to decide solely on its impression without appropriate findings of fact and analysis of all relevant aspects of the claimant's disablement. It must approach its task methodically and in a structured way. If it does not, the presiding judge will not be able to provide adequate reasons to explain how and why the tribunal made its decision.
25. An assessment of disablement is a judicial decision. As such, a tribunal must have reasons for making the assessment. If it does not, its decision is arbitrary, which is contrary to the nature of a judicial decision. Since the reasons are integral to the decision-making, it should be easy to give adequate reasons, provided that the tribunal made its decision correctly. The presiding judge then need only record what has been done. That is why I have devoted some time to dealing with the nature of disablement and its assessment......
29. The law may be summed up in this single proposition: the reasons must be sufficient to show how and why the tribunal made the decision that it did and that, in doing so, it acted within the law. Anything else concerns the application of the standard in a particular case.......
31. The reasons must record must findings on all relevant matters in dispute. They must be sufficient to identify the full nature of the disablement that the tribunal has taken into account. If the tribunal has rejected evidence, it must be clear why. It may be self-evident that particular evidence was irrelevant or unreliable, but it is always good practice to deal with it expressly. Failure to do so all too often leaves the claimant dissatisfied and generates unnecessary applications for permission.
32. [Counsel for the Secretary of State] argued that the tribunal had only to make findings on the claimant's disablement. It is correct that it must do that, but I do not understand how in practice it can do that without identifying the component parts. Still less do I understand how it can give reasons to show that it has properly applied article 42 without doing so.
33. It is impossible to explain percentage assessments with precision. They involve, as I have said, a degree of impression. But it will usually be possible to give some explanation, albeit in general terms. In some cases, the facts will speak for themselves and it will not be necessary as a matter of law to say more. For example: a claimant who experiences only occasional and very mild symptoms of stress that have no impact whatever on everyday life cannot expect an assessment of more than a few percent. It may, though, be helpful to the claimant, and avoid an application for permission to appeal, to point out the significant feature of the disablement that it has only a very limited impact on the claimant's ability to function. In other cases, it may be helpful to balance the claimant's disablement against the positive aspects of the claimant's life, pointing out the aspects that are close or equivalent to those of 'a normal healthy person'. And in other cases, it may be appropriate to draw attention to the limitations or restrictions that even 'a normal healthy person' would be likely to experience at the claimant's age.
34. Consistency is obviously desirable. But each assessment must be made on the basis of the tribunal's assessment of the evidence before it. That may lead to reductions in assessments when the claimant believes that nothing has changed or only for the worse. The tribunal has to explain why it has made that decision. The explanation must meet the arguments put to the tribunal. If the claimant has argued that the disablement has not changed, the tribunal's reasons must be sufficient to justify its assessment. That may require some explanation of why the assessment has changed: R(M) 1/96 at [15]. However, the scope for this is limited. Given the 10% bands in which assessments over 20% are made, a tribunal will not know with precision what the previous assessment was. It is only in the clearest cases, such as a reduction from 60% to 20% without any change in the relevant facts (to take an obvious example), that the sort of explanation envisaged by R(M) 1/96 will be possible.....
36. It is clear from the record of proceedings and the reasons, whether taken individually or collectively, that the tribunal approached the case in a methodical and structured way. That structure shows that the tribunal correctly directed itself on the law. It made findings of fact on all matters relevant to the conditions that were in dispute. It was entitled to accept the concessions that the disablement attributable to three conditions remained as in the report of the medical board. The presiding judge did not attempt any explanation, however broad, of the 30%. However, the clear findings speak for themselves. All of the disablements are relatively mild, some are only intermittent, and most are more of a nuisance that a major impact on the claimant's life. Even taking their cumulative effect into account, an assessment of 30% was the maximum that could be justified. The tribunal also had the benefit of the claimant's own evidence that the disablement from the head injury was the worst. That provided a scale for the assessment of the other disablement. The head injury only causes a short-term headache on most days of the week that is susceptible to over-the-counter medication and some blurred vision. With those relatively mild disablements as the worst, the addition of the others would not allow a higher assessment than 30%. The judge could have commented on the disablements, as I have done, but that was not necessary as a matter of law. All I have done is to spell out what is in the findings anyway."
(Again, the underling is mine and has been added for emphasis.)
13. Based on this case law, the Secretary of State argues that read with the PATS factual findings, the reasons were adequate. I do not accept this. This is for the following reasons.
14. First, taking the appellant's PTSD as the key focus, as it was in the oral hearing before me, I find little or nothing in the findings and reasons as a whole which, per CT, shows a structured approach which addressed the PTSD as one 'component part' to the overall percentage assessment and explains why the 40% remained the correct percentage assessment at both decision dates. The PATS findings of fact relevant to PTSD, at least as I read them, were that (i) the appellant had moved [in July 2021] to a house with an additional bedroom which provided him with a safe space for his PTSD symptoms, (ii) he has a small dog which he found helped him with his mental state, (iii) he has no obvious coping strategy for his PTSD symptoms, (iv) he had not had any high level therapy, and (v) he suffered flashbacks, nightmares and associated sleep disturbance. These findings are not then related to why 40% was a correct percentage assessment on the two decision dates the PATS considered it had before it. Most obviously, the move to the house in July 2021 falls after the decision date of 12 November 2020 but before 22 July 2022. Even ignoring what the appellant's case may have been on his appeals, this finding raises an (unaddressed) possible issue of whether the appellant's PTSD symptoms were different before the move.
15. Second, the Secretary of State relies on what he characterises as 'findings' - namely, (i) at the time of the decision the appellant said he drove a manual car and (ii) he was feeling great relief from the nocturnal symptoms of PTSD - but which on the face of it were no more than aspects of the appellant's evidence as recorded by the PATS under "the appellant's case". In circumstances where neither of these pieces of evidence appeared in the PATS 'findings of material facts' and where the PATS had found aspects of appellant's evidence to be exaggerated (exaggeration which was not limited to what he had said about his daily water consumption), I cannot find any secure basis for reading these two pieces of evidence as amounting to findings made by the PATS.
16. However, even if these were findings made by the PATS, I struggle to understand what they say about the correct percentage assessment for PTSD at the time of both decisions under appeal to the PATS, given (a) that the relief from the nocturnal symptoms of PTSD seemingly only came about after 28 January 2021 (even ignoring the appellant's argument that the relief was only fleeting), and (b) the lack of clarity about at which of the two decisions the appellant had been driving a manual car. If the appellant had been driving a manual car on 12 November 2020 but not by 22 July 2022, that might have suggested (though I would have expected some reasoning to explain this) that the PTSD symptom were less acute and of less functional effect in November 2020. On the other hand, the relief (if it was such) from the nocturnal PTSD symptoms would seem only to have occurred sometime after 28 January 2021, and so would not have been in place in 12 November 2020.
17. This last point leads on to the third reason I consider the reasons are inadequate: because they fail to give any focused consideration to the dates of the two decisions under appeal and the appellant's circumstances on both of those dates.
18. The PATS in my judgment failed to adequately address what the content of the two decisions under appeal was and what the appellant's grounds for appealing each of those decisions were. It is perhaps a matter of regret that Mr Blair was unable to help me with these two areas of interest at the hearing before me because he had not been provided with the either of the PATS appeal bundles for the two appeals. I have since the oral hearing gone through each of the (large) PATS appeal bundles to ascertain, as best I can, what the two decisions are that were (and by this decision remain) under appeal to the PATS.
19. This last concern about the approach of the PATS to the two appeals before it obtained a particular focus at the oral hearing before me. This is because it became apparent at the hearing that a key aspect of the appellant's concern about the adequacy of the PATS's reasoning was that he had previous percentage assessments within which his PTSD had been assessed as being at 30%, but the PTSD had then increased to 40%. Moreover, and more importantly, the appellant told me that at least part of his grounds of appeal to the PATS in these two appeals had been that since his PTSD had first been assessed at 40%, his circumstances had changed for the worse in that he had become no longer able to work, he had been put on new medication, and he was having increasing numbers of flashbacks and was up all night due to his PTSD. In addition, the appellant told me that he had made a specific argument to the PATS in these two appeals about drawing an analogy with guidance of the Secretary of State about percentage assessments for psychiatric disorders. Nowhere is either the 'I've got worse' or 'guidance analogy' argument addressed in the PATS's reasoning. Mr Blair (rightly) accepted that if either such argument had been made by the appellant to the PATS, its reasons were inadequate for failing to address the argument(s). If any authority is needed for this legal proposition see the underlined sentences in paragraph 24 of DS and paragraph 34 of CT above and also section 5B(a) of the Pensions Appeal Tribunals Act 1943. As I have said above, Mr Blair was not able to help me any further given he did not have the PATS's appeal papers in these appeals.
20. A related issue on the above two arguments said to have been made by the appellant to the PATS is whether they were made on these two appeals (as noted above the appellant has a number of other appeals to the PATS) and, if they were made on these two appeals, whether the 'worsening' argument was relevant to the two decisions under appeal to the PATS in these cases.
21. In trying to answer these points I have sought to make sense of the two PATS appeal bundles for these two appeals. That has not been an altogether easy task given the extent of both bundles and given that the PATS appeal bundle in PATS/A/20/0209 is described as a "Master Copy" and contains papers and evidence which may be relevant to other decisions and appeals made by the appellant
22. The PATS appeal bundle for PATS/A/22/0047 appears from digital page five, handwritten page 1, of that bundle to be against the Secretary of State's decision of 12 November 2020 (see the middle of that page 5/1). However, confusingly, the date of claim is written higher up that page as being 31 August 2021 with a date of decision of 9 March 2022, which seemingly (but even more confusingly) led to an appeal received on 17 March 2021. None of these last three dates bear any relationship to the dates the PATS considered it was concerned with. Handwritten page 2/digital page 7 of this '0047 bundle' is for an "Event type" called "Review of Entitlement and Assessment" and is about, inter alia, an interim percentage assessment of 70% which includes 40% for PTSD. Handwritten page 3/digital page 7 of this bundle refers to a claim form received on 31 August 2021 in which, in respect of PTSD, the appellant is said to have raised that he has had "changes since the last tribunal", including being deemed a danger in the work place, being signed off for life by the GP, being on quetiapine for life, and that the PTSD had not got better since 2011 and had got worse. Digital page 10 (typed page 4 of the WPS1669 form) then records the Secretary of State as accepting there are grounds to review the assessment dated 12/11/20, and the assessment is to be reviewed from 17 February 2021. It appears from the Medical Advisor's certificate further down typed page 4 of WPS1669, of 7 March 2022, that an assessment was made as to whether the appellant's PTSD had worsened, but they advised it had not and that the percentage assessment at 40% for the PTSD should be maintained. See further handwritten page 5/digital page 13 of the 0047 bundle. It is possible that this led to the decision said to have been made on 9 March 2022 not to review the 40% for PTSD from, it would appear, 17 February 2021. The index to the 0047 bundle also shows (digital page 3) a decision of 9 March 2022. This is said to be on page 119 of the statement of case. Quite how this relates to the interim of assessment of 70% from 3 August 2020 to 30 August 2021, which the PATS considered it was addressing, is unclear (and unexplained).
23. Page 119 (digital page 241) shows a decision letter dated 9 March 2022. It appears to cover two decisions. The first is a separate decision that the appellant is not entitled to an award for degeneration of the left knee. The second decision is that the interim assessment of 70% is maintained. From when it is maintained is not stated. However, the decision letter does show that the appellant was seeking a change in the assessment because his "accepted disablements had got worse". The decision must be a rejection of the appellant's argument that he had got worse. The appellant appealed against this decision on 16 March 2022 (pages 140-144 of the 0047 bundle). It appears (the documents are difficult to read) that he may also have sought a review of this decision (see (handwritten) pages 133-139 of the 0047 bundle). However, the index to the 0047 bundles provides these review request documents 'for information only', which at least suggests the Secretary of State did not think they were relevant to the appeal.
24. Pages 221-224 of the 0047 bundle then show two decision letters. The first is dated 21 July 2022 and is about an earlier appeal made by the appellant against a decision that he was not entitled to any award in respect of non-freezing cold injury to both feet. The decision letter of 21 July 2022 explains that in the light of further evidence the Secretary of State has reviewed and changed that decision and accepted that the non-freezing cold injury is attributable to service, however including it does not change the assessment of 70%. The letter goes on to tell the appellant that he does not need to do anything to appeal this new decision on the non-freezing cold injury because he already has an appeal against the 70% assessment, which will now cover whether the non-freezing cold injury has been accurately assessed. Interestingly, the 70% assessment is said in this letter to be from 3 August 2020 and not 17 February 2021. Quite why that is so is not explained. It appears from page 222 of the 00047 bundle that a decision was then formally made on 22 July 2022 not to increase the percentage assessment from 70%, (even) with the non-freezing cold injury to both feet added in to the accepted disabling conditions.
25. None of this history relevant to the 9 March 2022 and 22 July 2022 decisions is grappled with or explained by the PATS. More importantly, the PATS fails to reason out what it made of the appellant's argument that his conditions, and particularly his PTSD, had worsened since he had last been assessed at 40% for the PTSD. I cannot with any confidence tell from the papers before me when that last assessment of 40% for PTSD was made and what that assessment took into account, and therefore whether matters had got worse for the appellant since then. Nor can I tell what relevance this argument had to the period 3 August 2020 to 30 August 2021. However, this was the job of the PATS, given the evidence shows the appellant had raised as an issue on the appeal that his PTSD had worsened (seemingly) since the assessment decision of 12 November 2020, and its failure to 'do its job' and explain (as it must have found) that the appellant's PTSD had not worsened, or if it had it was not worsening which could be relevant to the decisions and periods in issue before the PATS, was a material error of law.
26. The PATS appeal bundle in the other, PATS/A/20/0209, bundle is much longer than the 0047 bundle, at 4,161 digital pages. Given the date of appeal is identified on (digital) page 1 of the 0209 bundle as being 12 November 2020, it would appear on first impression to be the bundle for the 12 November 2020 assessment decision. However, this is contradicted by handwritten page 1 (digital page 21) of the 0209 bundle, which records that the appeal is against the decision of 9 March 2022 as revised on 22 August 2022. Importantly, what is said on that page about the 9 March 2022 and 22 August 2022 decisions may answer the queries I have raised above when discussing the 0047 bundle about from when and until the 2022 decisions took effect. The handwritten page 1 of the 0209 PATS appeal bundle states that the interim assessment of 70% is for the period 31 August 2021 to 13 March 2022. This period on the face of it is nowhere addressed by the PATS. It seemingly considered that the two appeals before it were limited to the period 3 August 2020 to 30 August 2021. In so doing, the PATS therefore (further) erred in law in failing to properly satisfy itself as to the periods which were in issue before it on the two appeals; and, if appropriate, in failing to explain why the period from 31 August 2021 to 13 March 2022 was not in issue on either appeal notwithstanding the scope of the revisal decision described on (handwritten) page 1 of the 0209 bundle.
27. Moreover, the scope of the two appeals covering a combined period of 3 August 2020 to 13 March 2022 has an obvious relevance to the appellant's argument that his PTSD had worsened if only because of the greater period over which that worsening argument stood to be judged, albeit in respect of each discrete period covered by the decisions under appeal.
28. The above is sufficient to dispose of these two appeals to the Upper Tribunal. However, having considered the PATS appeal bundle in 0209 in some detail, I highlight the following (i) insofar as it may assist the new PATS faced with dealing with these two appeals and (ii) as possibly being relevant to the appellant's case before me that he had raised his PTSD having worsened and the guidance analogy on both of these PATS appeals. I then, and lastly, identify a further area where the PATS erred in law (concerning the appellant's argument by analogy).
29. The second page of handwritten page 989 (digital page 2005) of the PATS bundle 0209 may show that the appellant made a further claim/request for review on 16 March 2022 in respect of deterioration of his PTSD. Such a claim/request may fall outwith the scope of these two appeals and may explain why the (second?) interim assessment of 70% ended on 13 March 2022.
30. Handwritten pages 7-8 (digital pages 35-37) of bundle 0209 would appear to show that on 18 July 2017 the appellant had an interim assessment of 60% which included 30% for PTSD. Handwritten page 4 (digital page 29) of the same bundle indicates that this assessment had increased to 70% overall, with 40% attributable to PTSD, by 3 August 2020, and this may not have been changed by 6 November 2020 (handwritten second page 5, digital page 32).
31. Further, it may be important to establish the awarding decision to which the appellant was referring when he said in an email of 5 April 2022, following a PATS hearing the previous day, (see handwritten page 956, digital page 1938 of the 0209 bundle), that he was happy with the award of 40% for PTSD but since that award had been made his PTSD had deteriorated (sometime) in 2021. The awarding decision referred to here may be the awarding decision of 12 November 2020, given what the PATS of 4 April 2022 sets out in paragraph 39-42 of its adjournment decision, which begins on handwritten page 907. It is perhaps noteworthy that the PATS on 4 April 2002 did not have before it the appeal PATS/A/22/0047: see handwritten page 907. This might be explained by (handwritten) page 906 (digital page 1034) stating that the appeal against the 9 March 2022 decision was a separate appeal. On the face of it, the most likely explanation, despite how the PATS appeals bundles have been constructed, is that the appeal against the 9 March 2022/22 July 2022 decision is the one with the PATS reference PATS/A/22/0047, and concerns the 70% assessment for the period from 31 August 2021 to 13 March 2022: see, relatedly, paragraph 8 of the PATS's adjournment decision on (handwritten) page 1137 of the 0209 bundle, given that that PATS was not then dealing with PATS/A/22/0047. (The decision of 22 July 2022 appears at (handwritten) page 1077 (digital page 2206) of the 0209 PATS bundle.)
32. It may be of importance, in terms of the periods in issue before the PATS on these two appeals, that (handwritten) page 1104 (digital page 2260) of the 0209 bundle refers to a further deterioration claim made by the appellant which had still to be decided on 8 August 2022 (i.e. after any of the decisions under appeal in these two appeals): see further section 5B(b) of the Pensions Appeal Tribunals Act 1943. (And see in addition on further deterioration claims made by the appellant, (handwritten) pages 2037 and 2039 in 0209 dealing with, respectively, 70% assessment decisions dated 30 November 2022 (and from 14 March 2022) and 7 December 2022 (from 7 November 2022), with perhaps a yet further decision made on 10 February 2023 (2041).
33. The only other page to which I consider I should refer is page 2047 (digital 4154) which on its face supports the appellant's argument that he raised with the PATS on (at least one of) these appeals an argument by analogy with guidance on percentage assessments for psychiatric disorders. The email on the second page of handwritten page 2049 (digital page 4159) indicates this 'analogy' submission was put before the PATS on 15 May 2023. It is therefore a matter it should have addressed in reasoning out why 40% remained the appropriate assessment for PTSD at the effective dates of the decisions under appeal to it. The PATS's failure to do so amounted to a material error of law.
34. It is for all these reasons that these two appeals are allowed. My reasons, in summary, are that the PATS failed to grapple at all (as least as far as its reasons show) with the complicated history of the claims and decisions before it and, therefore, the scope of the arguments and periods in issue on the appeals before it. The PATS decision reads as if it was dealing with an appeal against a one-off assessment decision without any history of previous decisions and where the only argument made by the appellant was a very general one that a 70% assessment was not correct, when that was far from the case.
35. The Upper Tribunal is not able to re-decide the first instance appeals. The appeals will therefore have to be re-decided afresh by a completely differently constituted PATS.
36. The appellant's success on these appeals to the Upper Tribunal on error of law says nothing one way or the other about whether his two appeals will succeed on the facts before the PATS. That will be for that tribunal to assess in accordance with the law and once it has properly considered all the relevant evidence which properly bears on the two decisions under appeal to the PATS and the issues and periods with which those two decisions are concerned.
37. Given the complicated history within which these two assessment appeals are placed and given that it would seem there are later assessment decisions under appeal, as well as entitlement appeals which, if successful, may have a bearing on the correct overall percentage assessment, it may be appropriate for case management directions to be made to ensure all relevant appeals are heard together or at least in an appropriate sequence. That, however, is a matter for the President of the PATS.
Approved for issue by Stewart Wright
Judge of the Upper Tribunal
On 7 February 2024
GAM v Secretary of State for Defence
[2024] UKUT 10 (AAC)
IN THE UPPER TRIBUNAL
Appeal No. UA-2023-SCO-00090-WP
(ADMINISTRATIVE APPEALS CHAMBER)
On Appeal from the First-tier Tribunal (War Pensions and Armed Forces Compensation Chamber) PATS/S/22/0025
BETWEEN
GAM
Claimant
and
THE SECRETARY OF STATE FOR DEFENCE
Respondent
BEFORE UPPER TRIBUNAL JUDGE WEST
Decided after an oral hearing: 3 January 2024
DECISION
The decision of the First-tier Tribunal sitting at Edinburgh dated 11 July 2023 under file reference PATS/S/22/0025 does not involve a material error on a point of law. The appeal against that decision is dismissed.
This decision is made under section 11 of the Tribunals, Courts and Enforcement Act 2007.
REASONS
Introduction
1. This is an appeal, with the permission of the President of the Pensions Appeals Tribunal for Scotland, against the decision of the First-tier Tribunal sitting at Edinburgh on 11 July 2023.
2. I shall refer to the claimant hereafter as "the claimant". The respondent is the Secretary of State for Defence. I shall refer to him hereafter as "the Secretary of State". I shall refer to the tribunal which sat on 11 July 2023 as "the Tribunal".
3. The claimant appealed against the decision of 20 January 2022 that his unemployability supplement ("UnSupp") be abated in respect of his award of universal credit ("UC") with effect from 9 February 2022. As set out in the decision letter, the effect of the abatement was that the UnSupp was reduced by £79.03 per week from £119.90 to £56.37 per week. His war disablement pension and his comfort allowance were not reduced and remained payable at £135.80 and £15.75 per week respectively. Thus, with effect from 9 February 2022 he was to receive £207.92 per week, comprising the war disablement pension of £135.80, the abated UnSupp of £56.37 and the comforts allowance of £15.75.
4. The matter came before the Tribunal on 11 July 2023 when the claimant appeared by video and gave oral evidence. A presenting officer (Mr Ferguson) also appeared by video on behalf of the Secretary of State. The appeal was refused and the decision of the Secretary of State upheld.
The Statement of Reasons
5. In its statement of reasons dated 21 July 2023 the Tribunal stated that
"6. Article 41 of the Naval, Military and Air Forces (Disablement and Death) SPO 2006 applies and governs this Appeal. The effect of that Article is to place the burden of proof on the claimant at least to the extent of him requiring to raise a reasonable doubt in [his] favour based upon reliable evidence.
7. [The claimant] advised that he was in receipt of State benefit of Universal Credit and part of that award was a component for limited capability for work related activity (LCWRA). He indicated he was also in receipt of State benefit Personal Independence Payment (PIP). He indicated that he was not in receipt of the State benefit Employment Supplement Allowance (ESA).
8. [He] advised that the Benefits Agency had confirmed to him that they would not take into account any of the unemployability supplement payment being paid under the SPO when assessing eligibility for the amount of payment of Universal Credit benefits. As far as the Benefits Agency were concerned there was no overlap of benefit when assessing Universal Credit.
9. [He] said he was not attempting to claim double compensation for the same injury. He advised that the Benefits Agency had accepted all of his stated injuries under the War Pension Scheme. [He] accepted that an award of ESA would be an overlapping benefit. We have considered the case by the Secretary of State.
10. Mr. Ferguson referred to page 3 of the Statement of Case which was the written reasons for the Secretary of State's reason for the decision under review. It is stated in that that [the claimant] was initially awarded Unemployability Supplement on 18 March 2019 and there was a review on 15 March 2021.
11. On the claim form [the claimant] had stated that he was receiving Universal Credit and an e-mail enquiry from the Department of Work and Pensions (DWP) dated 29 October 2021 confirmed that [his] Universal Credit included a component for limited capability for work and work-related activity (LCWRA). The DWP confirmed this had been in payment since 7 August 2018 and included a health allowance component at the rate of £343.63 per month.
12. It was stated that upon claiming Universal Credit, an individual's ability to work will be assessed via a Work Capability Assessment. Those who are considered unable to work and are not expected to be able to prepare for work in the future are placed in the limited capability for work-related activity group and receive a monthly health allowance component.
13. It is also stated that Universal Credit currently disregard the War Disablement Pension (WDP) and supplementary allowances in their consideration of Universal Credit, and there is no provision within the overlapping benefit regulations which can prevent an award of allowances under both schemes.
14. There is reference to Article 52 of the Naval, Military and Air Forces (Disablement and Death) Service Pensions Order and that the provisions of Article 52 had been applied in the current case namely that individuals should not be compensated twice for the same purpose from public funds.
15. It goes on to say under Article 52 the Secretary of State may take compensation into account against a pension or gratuity in such a manner and to such an extent as he thinks fit and may withhold or reduce the pension or gratuity accordingly.
16. The position is summarised on reverse of page 3 and it is stated that the Secretary of State considers the claimant's unemployability supplement should be abated in respect of the health allowance component of Universal Credit under Article 52 of the Naval, Military and Air Force Etc (Disablement and Death) Service Pensions Order 2006. The Tribunal finds the following material facts.
17. [The claimant] was initially awarded unemployability supplement on 18 March 2019.
18. A review claim form was received on 15 March 2021.
19. The claimant was and is in receipt of Universal Credit and [his] Universal Credit included a component for limited capability for work and work-related activity (LCWRA). Universal Credit had been paid to the claimant since 7 August 2018 and included a health allowance component at the rate of £343.63 per month.
20. [The claimant] is in receipt of Personal Independence Payment (PIP).
21. The Benefits Agency do not consider unemployability supplement as an overlapping benefit when assessing eligibility for Universal Credit. The State benefit ESA could be taken into account by the Secretary of State when assessing Unemployability Supplement payments. The Tribunal's consideration in deciding this Appeal are:
22. We considered Article 12 of the SPO 2006 which is found on page 4 of the Statement of Case and comprises of awards in respect of disablement.
23. Under the heading Unemployability Allowances in Article 12 which article provides that 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.
24. Article 12(10)(b) provides that where a personal allowance or additional allowance has been awarded under the law of any place outside the United Kingdom being a benefit which, in the opinion of the Secretary of State, is analogous to benefits under Chapters 1 or 2 of part 2 of the Social Security Act 1975, the Secretary of State may take into account any pension referred to and may make any adjustment which would be made if the person were eligible for analogous benefits under Chapters 1 or 2 of part 2 of the Social Security Act 1975. Taking this Article along with Article 52 we came to the view that if any element of Universal Credit contained a component analogous to one of the 1975 listed benefits then we believe it would be appropriate to make adjustment to the unemployability supplement.
25. The benefits listed under the 1975 Social Security Act are as follows. The Chapter II non-contributory benefits listed are:-
Descriptions of non-contributory benefits.
1. Attendance allowance
2. Non-contributory invalidity pension
3. Invalid care allowance
4. Guardians allowance
5. Retirement benefits for the aged
6. Age addition.
26. We considered the fact that [the] LWRCA is paid due to a health condition or disability a person's condition is such that they are not capable of preparing for work.
27. We have considered that sickness benefit as listed in the 1975 Act was paid when a person was unable to work for reasons of ill health and that benefit would be paid for a period of 168 days and thereafter would convert to invalidity benefit both of which were listed in the 1975 Act. We came to the view that the health component and LWRCA payment within the Universal Credit payments were analogous benefits to those found in the 1975 Act and therefore the Secretary of State was entitled to abate.
28. We considered the UK Government guidance entitled War Pension Scheme: Unemployability Supplement (UnSUPP) published on 21 February 2020.
29. That guidance contains eligibility rules for claiming UnSUPP one of which is that the applicant for UnSUPP must have a War Pension disability assessment of 60% or higher. [The claimant] has an award of 70% so he meets this eligibility criteria.
30. The guidance also states that UnSUPP cannot be claimed when in receipt of Employment and Support Allowance (ESA).
31. Universal Credit replaced a number of benefits one of which was ESA and [the claimant] accepted ESA could be offset against UnSUPP."
Permission To Appeal
6. On 2 August 2023 the President, Judge Caldwell KC, acceded to the claimant's application and granted him permission to appeal. It seemed to her that there was an arguable case that the Tribunal erred in point of law on the basis that
"7. Essentially, the applicant argues that the legislation does not permit the abatement of UnSupp in respect of UC because UC is not named in Article 12(10) of the SPO as one of the benefits that the Secretary of State can take into account when adjusting an award of UnSupp to take account of other benefits.
8. The Secretary of State does not support the appeal. The gravamen of the SSD's argument is as follows:-
The Secretary of State considers that the Tribunal has given a clear and detailed explanation of its process of reasoning. It explains that it considered Articles 12 and 52 together to find that the Secretary of State has the power to adjust UnSupp in respect of other benefits equivalent to those specified in Article 12, which refers to the Social Security Act 1975. It then explains that sickness benefit as listed in the 1975 Act is equivalent to the health and LCWRA components of UC. Consequently, it reached the only logical conclusion: that UnSupp can be adjusted in respect of the health and LCWRA components of UC. This reasoning is cogent and easy to understand and the Secretary of State therefore considers that the Tribunal has fulfilled its obligation to provide adequate reasons for its decision.
Discussion and Decision
9. Article 12 of the SPO provides for the payment of UnSupp and for those entitled to receive it. Art. 12(10) gives the SSD a discretion to take into account certain state pension benefits and equivalent non-UK benefits and set them off against the UnSupp allowance.
10. Part VII of the SPO (articles 51 to 66) makes provision for reduction and cancellation of awards. Article 52 gives the SSD discretion to adjust awards in respect of other "compensation". Compensation is defined in article 52(3). The purpose of this article is to prevent duplication of payments. Article 56 provides for abatement of awards in respect of social security benefits paid under certain Acts. This includes Part I of the Welfare Reform Act 2012. Part I of the 2012 Act makes provision for the payment of UC. The tribunal dealt with the abatement in this case by reference to article 52. To my mind, it is arguable that it should have been considered in terms of article 56. I am therefore concerned that the tribunal may have been in error of law.
11. For the reasons given in the preceding paragraph, I grant leave to appeal."
The Secretary of State's Submission
7. On 21 September 2023 the Secretary of State provided submissions, but did not support the appeal. He submitted that
"4. For the purposes of this Response, the Secretary of State proceeds on the basis that the claimant's fundamental concern is as set out at para. 7 of the President of the PAT's decision granting leave to appeal dated 2 August 2023:
Essentially, the applicant argues that the legislation does not permit the abatement of UnSupp in respect of UC because UC is not named in Article 12(10) of the SPO as one of the benefits that the Secretary of State can take into account when adjusting an award of UnSupp to take account of other benefits.
5. Assuming that is the claimant's central complaint, it is misconceived.
6. Of note, the claimant also seems to argue that his current conditions merit a higher assessment than the 70% he currently receives. That is the subject of a different appeal (UA-2023-SCO-000076). Accordingly, the Secretary of State does not address that issue in this response. The claimant also appears to challenge the finding that his NCFI is not severe enough to prevent him working. Given the Secretary of State has agreed that Unemployment Supplement should be paid, any such challenge is irrelevant.
The Secretary of State was entitled to abate in terms of Art 52
Abatement under Art. 52
7. Art. 52 (1) of the Naval, Military and Air Forces etc. (Disablement and Death) Service Pension Order 2006 provides:
"(1) Where the Secretary of State is satisfied that—
(a) compensation has been or will be paid to or in respect of a person to or in respect of whom a pension or gratuity is being or may be paid; or ...
the Secretary of State may take the compensation into account against the pension or gratuity in such manner and to such extent as he thinks fit and may withhold or reduce the pension or gratuity accordingly".
8. "Compensation" is defined in Art. 52(3) and includes:
"any periodical ... payment in respect of the disablement ... of any person ... being a payment for which provision is made by or under any enactment".
9. The clear policy basis of this rule is to prevent double-compensation. If the recipient of a pension is compensated from another source, it is not appropriate for the state to also make an analogous payment via a war pension. That policy can be ascertained having regard to the whole scheme of the 2006 Order, including Arts. 52, 56 and 12(10). Accordingly, the Secretary of State is afforded a discretionary power to withhold or abate pension payments "as he thinks fit".
Universal credit payment
10. The claimant is in receipt of Universal Credit with a LCWRA component. Of note, it is the LCWRA component which has been the reason for abatement of the claimant's pension payments.
11. Universal Credit is provided for in terms of Part 1 of the Welfare Reform Act 2012 and replaced various previous social security benefits. The definition of limited capability for work related activity is set out at s. 37(2) of the 2012 Act:
"(2) For the purposes of this Part a claimant has limited capability for work-related activity if—
(a) the claimant's capability for work-related activity is limited by their physical or mental condition, and
(b) the limitation is such that it is not reasonable to require the claimant to undertake work-related activity".
12. Accordingly, a LCWRA payment shall only be made in circumstances where a physical or mental condition renders it unreasonable for the individual to undertake work-related activity. Whilst expressed with different language, that is plainly analogous to "disablement" in terms of Art. 52(3) of the 2006 Order.
Justification for abatement
13. Having regard to the above, it is clear that the Secretary of State was entitled to abate the claimant's pension. Each of the three ingredients in the definition of "compensation" for the purposes of Reg. 52(3) have been met:
I. The pursuer receives a periodical payment: the LCWRA component of Universal Credit;
II. It is "in respect of disablement" as a result of a physical or mental condition which renders it unreasonable for him to undertake work-related activities: s. 37(2) of the 2012 Act; and
III. It is a payment for which provision is made under an enactment: the 2012 Act.
14. Those elements having been met, the decision to abate was one for the Secretary of State to consider "as he thinks fit". The Secretary of State had regard to the policy justification of avoiding double-compensation. His decision was rational. He had a reasonable basis to conclude that the claimant ought not to receive overlapping payments from both the Department for Work and Pensions and the Ministry of Defence in respect of his unemployability, as a result of his physical conditions. The Secretary of State was entitled to abate the claimant's pension by reference to Art. 52 of the 2006 Order. The appeal ought to be refused.
Art 12(10) of the Order
15. Having regard to the above reasoning, it was not necessary for the PAT to engage in the analysis of Art. 12(10) of the 2006 Order which it did. Abatement for the LCWRA component of Universal Credit clearly falls within the scope of the statutory language in Art. 52, without having to read any principles across from Art. 12(10). Nonetheless, the PAT's analysis is consistent with the conclusion that Art. 52 allows for abatement in these circumstances.
Art 56 of the Order
16. In her decision granting permission to appeal, the President of the PAT suggests that Art. 56 of the Order may be the correct vehicle through which to abate the claimant's pension. The Secretary of State submits, respectfully, that such an analysis is misconceived.
17. Art. 56 provides:
"(1) Where a pension is awarded to or in respect of a person for any past period for which benefit under an Act referred to in paragraph (3) has also been paid to or in respect of that person ("the relevant period"), the amount of pension awarded may be abated by an amount calculated in accordance with paragraph (2)".
18. As noted by the President, Universal Credit falls within the scope of para. 3 of Art. 56. However, Art. 56 is directed at a separate, distinct context. Art. 56 bites "where a pension is awarded for any past period". The decision subject to appeal related to a decision as to abatement of pension payments going forward. In such circumstances, for the reasons set out above, Art. 52 provides the correct vehicle for abatement of pension payments.
19. Esto Art. 56 is the correct vehicle for abatement, any error of law on the part of the PAT has been immaterial. Art. 56(2) prescribes the method of abatement:
"(2) The amount referred to in paragraph (1) is the amount by which the amount of benefit paid during the relevant period exceeds the amount of benefit which would have been payable if the pension had been paid at the same time as the benefit".
20. That is substantively the approach which was adopted by the Secretary of State. Any error was immaterial.
Conclusions
21. For the reasons set out above, the Secretary of State invites the Upper Tribunal to refuse the appeal."
The Claimant's Submission
8. Although the claimant was acting in person, he had the benefit of a submission written on his behalf by Mr Glyn Tucker of the Royal British Legion, which was before me at the hearing. The claimant in essence submitted that the Tribunal erred in considering Article 52 and not Article 56. Under Article 56 the Department for Work and Pensions determined whether there had been any duplication and abated awards of social security benefits accordingly. Where that was not done because, for example, war pension was awarded for a past period, the Secretary of State for Defence (in the form of Veterans UK) could abate the award, but only to the extent that it exceeded the amount which would otherwise have been paid. In the present case there would be no abatement in respect of the UnSupp because the Department for Work and Pensions had determined that it did not overlap with UC. The question then arose whether Article 56 provided the only route to the abatement of awards of social security benefits. A similar question arose in relation to the recovery of overpayments of social security benefits in the attached case of CPAG v SSWP [2010] UKSC 54 regarding s.71 of the Social Security Benefits Act 1992. Could recovery be made under the common law if it could not be under s.71? The Supreme Court confirmed that it could not be because s.71 provided an exclusive code for recovery. As Lord Dyson SCJ stated in paragraph 35 "the co-existence of two systems, overlapping but varying in matters of detail ... would be a recipe for chaos". It could not have been intended by Parliament that Veterans UK could revisit recovery under Article 52 where Article 56, specifically applying to social security benefits, did not allow it.
The Hearing of the Appeal
9. On 17 August 2023 I directed an oral hearing of the appeal, which I heard by video on the morning of 19 December 2023. The claimant appeared in person. The Secretary of State was represented by Mr David Blair of Axiom Advocates.
10. I reserved my judgment until the New Year.
Discussion
Article 12(10)
11. Article 12(10) of the SPO 2006 provides that
"Where—
(a) a person to whom a personal allowance may be or has been awarded under the foregoing provisions of this article is eligible for—
(i) a category A or B retirement pension, as provided for by regulation 18 of the Social Security (Widow's Benefit, Retirement Pensions and Other Benefits) Transitional Regulations 1979, or by corresponding regulations made in Northern Ireland, or
(ii) a widow's pension under Part II of the Social Security Contributions and Benefits Act 1992, or the corresponding provisions of the Social Security (Northern Ireland) Contributions and Benefits Act 1992; or
(iii) a state pension under Part 1 of the Pensions Act 2014; or
(b) a person to or in respect of whom a personal allowance or an additional allowance may be or has been so awarded is eligible for benefit payable out of public funds under the law of any place outside the United Kingdom being benefit which, in the opinion of the Secretary of State, is analogous to benefit under Chapters I or II of Part II of the Social Security Act 1975
the Secretary of State may take into account any pension referred to in subparagraph (a) against the personal allowance and any benefit referred to in subparagraph (b) against the personal allowance and the additional allowance in such manner and to such extent as he may think appropriate having regard, in the case of such benefit, to any adjustment which would be made if the person were eligible for the analogous benefit under Chapters I or II of Part II of the Social Security Act 1975".
12. Sub-paragraph (a) is obviously inapplicable to the present situation. The Tribunal sought to rely on Article 12(10(b), but that provision is equally obviously inapplicable because it only applies where a claimant "is eligible for benefit payable out of public funds under the law of any place outside the United Kingdom". The claimant in this case, however, was not eligible for payment of benefit out of public funds under the law of any place outside the UK. The question of whether the UK benefit which he was being paid was or was not analogous to benefit under Chapters I or II of Part II of the Social Security Act 1975 did not therefore arise. To the extent that the Tribunal relied on the terms of Article 12(10)(b) its decision was erroneous and the Secretary of State rightly did not seek to uphold its decision on that basis. (I should add that it was never part of the Secretary of State's case before the Tribunal that Article 12(10)(b) applied to the case in any event.)
Article 52
13. In addition, the Tribunal reached its decision of the basis of Article 52 and in my judgment it was right to rely on that provision.
14. Article 52, so far as material, provides that
"(1) Where the Secretary of State is satisfied that—
(a) compensation has been or will be paid to or in respect of a person to or in respect of whom a pension or gratuity is being or may be paid; or ...
the Secretary of State may take the compensation into account against the pension or gratuity in such manner and to such extent as he thinks fit and may withhold or reduce the pension or gratuity accordingly"
and "compensation" is defined in Article 52(3) to include:
"any periodical ... payment in respect of the disablement ... of any person, ... or in respect of any incapacity sustained or suffered by any person, being a payment for which provision is made by or under any enactment".
15. It Is not in dispute that the claimant is in receipt of UC with a LCWRA component. It is the LCWRA component which was the reason for abatement of the claimant's UnSupp payments.
16. UC is provided for in terms of Part 1 of the 2012 Act. The definition of limited capability for work-related activity is set out in s. 37(2) of the 2012 Act:
"(2) For the purposes of this Part a claimant has limited capability for work-related activity if—
(a) the claimant's capability for work-related activity is limited by their physical or mental condition, and
(b) the limitation is such that it is not reasonable to require the claimant to undertake work-related activity".
17. It follows from this definition that a LCWRA payment is only made in circumstances where a physical or mental condition renders it unreasonable for the claimant to undertake work-related activity. Although expressed in different language, I am satisfied that such a payment is one made in respect of the claimant's "disablement" in the terms of Article 52(3) of the SPO. Although the Secretary of State did not make this point, it seems to me that it could equally be said that such a payment is made in respect of the claimant's "incapacity" within the terms of Article 52(3).
18. In that event, each of the three elements of the definition of "compensation" for the purposes of Article 52(3) has been made out. In the first place the claimant receives a periodical payment, namely the LCWRA component of UC. Secondly, that payment is "in respect of disablement" (or "incapacity") as a result of a physical or mental condition which renders it unreasonable for him to undertake work-related activities by virtue of s. 37(2) of the 2012 Act. Thirdly, it is a payment for which provision is made under an enactment, namely the 2012 Act. Accordingly, the Secretary of State was afforded a discretionary power to withhold or abate the UnSupp payment "as he thinks fit".
19. That result accords with the underlying policy of preventing double-compensation. If the claimant is compensated for his inability to engage in work-related activity from another source (in this case the LCWRA element of UC), it is not appropriate for the state also to make a further payment via a war pension payment in the form of UnSupp.
20. That is because a payment of an unemployability allowance in the form of UnSupp under Article 12(1) of the SPO 2006 is paid in respect of disablement so serious as to render the claimant unemployable:
"Subject to the provisions of this article, 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, being—
(a) a personal unemployability allowance at the appropriate rate specified in paragraph 5(a) of Part IV of Schedule 1 ...".
21. There is a clear overlap between a payment in respect of disablement so serious as to render the claimant unemployable and a payment made because the capability for work-related activity is limited by a claimant's physical or mental condition and the limitation is such that it is not reasonable to require the claimant to undertake work-related activity.
22. The claimant sought to rely on his conversation with the Department of Work and Pensions on or about 3 February 202 to the effect that "you will see that he has called UC explaining his WP and they have said there is no cross over with UC except ESA and he is not on ESA". What may or may not have been said in a telephone conversation cannot override the correct interpretation of the statutory scheme.
23. What the Department in fact said in his UC journal entry for that date was that war disablement pension did not affect his UC, but that under war pension rules the LCWRA element of UC did overlap with war pension UnSupp:
"I am answering your email because I think I need to try to explain about Universal Credit and War Pension Unemployability Supplement.
Under Universal Credit rules, War Pension Unemployability Supplement does not overlap.
However, under War Pension rules, the health allowance component of Universal Credit (LCWRA) overlaps with War Pension Unemployability Supplement.
This is why we have had to reduce your UnSupp by the amount you received for UC LCWRA".
24. The Secretary of State repeated his position in a statement dated 7 February 2023:
"... War Pension Payments are not taken into account when calculating eligibility to Universal Credit.
However, under the War Pension Scheme, the Secretary of State considers that the health allowance component of Universal Credit overlaps with Unemployability Supplement because it is paid for thew same contingency i.e. financial support for people unable to work on the grounds of incapacity.
As there is no provision within the overlapping benefit regulations which can prevent an award of allowances under both schemes, Article 52 of the SPO is used to abate the award of Unemployability Supplement".
25. It seems to me that what was said in those paragraphs was an accurate statement of the position, as was the ministerial statement of 14 September 2020 by Baroness Stedman-Scott on which the claimant also sought to rely, that payments under the war pension scheme were not taken into consideration as income for the purposes of UC. In short, war pension payments are not taken into account when calculating eligibility to UC. However, under the SPO 2006, where the Secretary of State considers that the health allowance component (whether LCW or LCWRA) of UC overlaps with UnSupp because it is paid for the same contingency (i.e. financial support for people unable to work on the grounds of disablement or incapacity incapacity), he is entitled to use Article 52 to abate the award of UnSupp.
26. The claimant sought to rely on the details of a "Benefits Factsheet" produced by the Armed Services Advice Project ("ASAP") in conjunction with CPAG in August 2022 which set out in tabular form any particular allowance and the corresponding benefit overlap. In that table the UnSupp allowance is shown only as correspondingly overlapping with contributory ESA and category A or B retirement pension or state pension.
27. He also sought to rely on a statement of the gov.uk website that UnSupp could not be paid when ESA was in payment. He therefore argued that, since he was not in receipt of ESA, his UnSupp could not be abated by virtue of his receipt of UC.
28. However, in the first place statements in a benefits factsheet or on a website cannot override the applicable statutory provisions and do not assist the claimant. In the second place, the statement on the gov.uk website is not incompatible with the present situation. What it says is that UnSupp cannot be paid when ESA is in payment. It does not say that UnSupp cannot be abated when UC is in payment.
29. Thus I am satisfied the Tribunal was right to conclude that the Secretary of State was entitled to abate the award of UnSupp by virtue of Article 52 and therefore any reliance on Article 12(10)(b) was not material to the Tribunal's decision.
30. If the reliance on Article 12(10)(b) amounted to an error of law which was material to the decision, I would have remade the decision to the effect that the Secretary of State was entitled to abate the UnSupp payment in respect of the award of UC by virtue of Article 52 of the SPO alone and thereby have reached the same result.
Article 56
31. It is unfortunate that the President in granting permission to appeal, did not explain why she considered that it was Article 56 which applied rather than Article 52 nor how it would affect the outcome of the analysis to apply one provision rather than the other.
32. There is in fact no conflict between Article 52 and Article 56 which apply to two different situations.
33. Article 52 applies, in order to prevent duplication of benefits for the same injury, to give the Secretary of state power to take into account against any pension or gratuity "in such manner and to such extent as [he] thinks fit" any compensation (as defined in Article 52(3)) which has been or will be paid to a war pension beneficiary so as to extinguish or reduce the war pension benefits which would otherwise be payable. By contrast, Article 56 provides that where an award of a war pension is made for any past period during which social security benefits (i.e. contributory benefits, non-contributory benefits, increases for dependants, industrial injuries benefits, income-related benefits, jobseeker's allowance and employment and support allowance in Great Britain and Norther Ireland) have been paid, the amount of the pension may be abated by the amount by which the total of benefit paid during the period exceeds the amount which would have been paid if the social security benefit and the war pension had both been paid at the same time.
34. I therefore agree with the Secretary of State's submission that, whilst UC falls within the scope of Article 56(3), Article 56 is however directed at a separate, distinct context and that it bites "where a pension is awarded for any past period". The decision which is the subject of the appeal in this case relates to a decision as to abatement of pension payments going forward. In those circumstances, for the reasons set out above, it is Article 52 which provides the correct vehicle for abatement of UnSupp payments.
35. It follows from this that the reliance on the CPAG decision does not assist the claimant. The situation is not one where a common law remedy was said to exist alongside the statutory regime or whether a common law remedy would be incompatible with the statutory scheme and could not therefore have been intended to co-exist with it. By contrast, this is a case where the statutory regime provides two different provisions for abatement, but they do not overlap because they deal with different situations and there is no room for any recipe for chaos as there potentially was in CPAG.
Conclusion
36. For these reasons I am satisfied that the Tribunal did not make any error of law which was material to the decision and for that reason the decision of the Tribunal should be upheld and the appeal dismissed.
Mark West
Judge of the Upper Tribunal
Signed on the original on 3 January 2024
Secretary of State for Defence v CAW (WP): [2023] UKUT 246 (AAC)
1 SSD v CAW (WP) [2023] UKUT 246 (AAC) IN THE UPPER TRIBUNAL Appeal No. UA-2023-000242-WP ADMINISTRATIVE APPEALS CHAMBER On appeal from the First-tier Tribunal (War Pensions and Armed Forces Compensation Chamber) Between: Secretary of State for Defence Appellant - v - C.A.W. Respondent Before: Upper Tribunal Judge Wikeley Decision date: 5 October 2023 Decided on consideration of the papers Representation: Appellant: Ms Jennifer Seaman of Counsel, instructed by the Government Legal Department Respondent: Mr Glyn Tucker, Royal British Legion DECISION The decision of the Upper Tribunal is to allow the Secretary of State’s appeal. The decision of the First-tier Tribunal made on 26 October 2022 under case number SD/00065/2022 was made in error of law. Under section 12(2)(a) and (b)(ii) of the Tribunals, Courts and Enforcement Act 2007, I set that decision aside and re-make the decision that the First-tier Tribunal should have made as follows: The Appellant’s appeal is dismissed. The Secretary of State’s specified decision dated 28 January 2022 is confirmed. The Appellant’s claim for an Allowance for Lowered Standard of Occupation under Article 15 of the Service Pension Order is not allowed with effect from 23 December 2020 (nor is it allowed with effect from 1 November 2021). This is because the Appellant was not incapable of following an occupation with equivalent gross income to that of his regular service occupation. SSD v CAW (WP) [2023] UKUT 246 (AAC) Case no: UA-2023-000242-WP 2 REASONS FOR DECISION The subject matter of this appeal to the Upper Tribunal 1. This appeal is about the rules governing entitlement to ALSO (Allowance for Lowered Standard of Occupation), which is a financial supplement payable in the war pensions scheme to certain claimants with reduced earning capacity. An outline of the course of the appeal 2. The Veterans UK decision-maker, acting on behalf of the Secretary of State for Defence, decided that the claimant was not entitled to ALSO. This was on the basis that the claimant was not incapable of following an occupation with equivalent gross income to that of his regular service occupation. The claimant appealed to the First-tier Tribunal, which allowed his appeal in part. The Secretary of State, in the form of Veterans UK, now appeals to the Upper Tribunal against the decision of the First-tier Tribunal. A summary of the Upper Tribunal’s decision 3. I allow the Secretary of State’s further appeal to the Upper Tribunal. This is because the decision of the First-tier Tribunal involves a legal error. For that reason, I set aside the Tribunal’s decision. I re-make the decision that the Tribunal should have made. This is that the claimant’s appeal against the Secretary of State’s decision dated 28 January 2022 is refused. This is because the claimant is not entitled to ALSO with effect from the date of claim (23 December 2020) or from any later date (e.g. 1 November 2021) before the date of decision. 4. In this decision I refer to the Appellant as the Secretary of State to avoid any confusion. I refer to the Respondent as the claimant for the same reason. To protect the claimant’s privacy, and to avoid the risk of ‘jigsaw identification’, I refer to the claimant’s former employer in those terms rather than by their name. The legal background to ALSO 5. The legislative basis for entitlement to ALSO is to be found in Article 15 of the Naval, Military and Air Forces etc. (Disablement and Death) Service Pensions Order 2006 (SI 2006/606, referred to below by its acronym as ‘the SPO’). As amended, this provides as follows: Allowance for lowered standard of occupation 15.—(1) Subject to paragraph (2), where a member of the armed forces is— (a) in receipt of retired pay or a pension in respect of disablement the degree of which is less than 100 per cent; and (b) the disablement is such as to render him incapable, and likely to remain permanently incapable, of following his regular occupation and incapable of following any other occupation with equivalent gross income which is suitable in his case taking into account his education, training and experience SSD v CAW (WP) [2023] UKUT 246 (AAC) Case no: UA-2023-000242-WP 3 he shall, subject to paragraph (3), be awarded an allowance for lowered standard of occupation at a rate not exceeding the appropriate rate specified in paragraph 8 of Part IV of Schedule 1. (2) No award of an allowance under this article shall be made where subparagraphs (a) or (b) or both apply— (a) this subparagraph applies where a member submits a new claim (as defined in article 4(b))— (i) on or after the date he attained the age of 65, or (ii) where the degree of disablement is assessed at less than 40 per cent; (b) this subparagraph applies where— (i) a member submits a claim on or after 6th April 2009, (ii) on the day which immediately precedes the date of claim the member or, where the member has died, the person by or in respect of whom a claim is made does not have an award of the allowance, and (iii) the member is in receipt of— (aa) incapacity benefit under Part II of the Social Security Contributions and Benefits Act 1992 or the corresponding provisions of the Social Security Contributions and Benefits Act (Northern Ireland) 1992, (bb) employment and support allowance under Part 1 of the Welfare Reform Act 2007 or the corresponding provisions of the Welfare Reform Act (Northern Ireland) 2007, which includes a work-related activity component or a support component (within the meaning of the applicable Act) (cc) any benefit or allowance under the law of any place outside the United Kingdom which in the opinion of the Secretary of State is analogous to incapacity benefit or employment and support allowance, or (dd) an award of universal credit under Part 1 of the Welfare Reform Act 2012, the calculation of which includes an amount under regulation 27(1) of the Universal Credit Regulations 2013 in respect of the fact that the member has limited capability for work or limited capability for work and work-related activity, or would include such an amount but for regulation 27(4) or 29(4) of those Regulations or (ee) an award of universal credit under Part 2 of the Welfare Reform (Northern Ireland) Order 2015, the calculation of which includes an amount under regulation 28(1) of the Universal Credit Regulations (Northern Ireland) 2016 in respect of the fact that the member has limited capability for work or limited capability for work and work-related activity, or would include such an amount but for regulation 28(4) or 30(4) of those Regulations. SSD v CAW (WP) [2023] UKUT 246 (AAC) Case no: UA-2023-000242-WP 4 (3) The aggregate rate of the member's retired pay or pension together with the allowance under this article shall not exceed the rate of retired pay or pension which would have been appropriate in his case if the degree of his disablement had been 100 per cent. (4) Subject to the provisions of paragraph (5), an allowance under this article shall not be payable to a member for any period in respect of which an allowance under article 12(1)(a) or article 17 is payable to him. (5) Where a member is in receipt of an allowance under this article he may continue to receive such allowance if he becomes eligible subsequently for an allowance under article 12(1)(a). (6) In this article “regular occupation” means— (a) where the member's disablement is due to service between 2nd September 1939 and 1st August 1973, the occupation which was his regular occupation before his service; or (b) where there was no such regular occupation, or where the member's disablement is due to service after 31st July 1973, his trade or profession as a member of the armed forces on the date that he sustained the wound or injury, or was first removed from duty on account of the disease on which his award is based, or if there was no such occurrence, the date of the termination of his service. 6. The claimant in the present case is “in receipt of retired pay or a pension in respect of disablement the degree of which is less than 100 per cent” and so satisfies the condition in Article 15(1)(a). The question that arises on this appeal is whether at the material time his “disablement is such as to render him incapable, and likely to remain permanently incapable, of following his regular occupation and incapable of following any other occupation with equivalent gross income which is suitable in his case taking into account his education, training and experience” (Article 15(1)(b)). The factual background to this appeal 7. The claimant was born in 1969 and so is now aged 54. He served as a (Gunner) Private from 1987 to 1994. He is entitled to a war pension with an aggregate assessment of 50%, based on a total of 9 accepted conditions (mostly of a musculoskeletal nature). He therefore satisfied both the age condition (being aged under 65: Article 15(2)(a)(i)) and the assessment of disablement condition (being assessed as at least 40 per cent but less than 100 per cent: Article 15(1)(a) and 15(2)(a)(ii)) for a claim to ALSO. In addition, as his service post-dated 31 July 1973, his “regular occupation” was as a (Gunner) Private (Field Guns), being “his trade or profession as a member of the armed forces on the date that he sustained the wound or injury, or was first removed from duty on account of the disease on which his award is based, or if there was no such occurrence, the date of the termination of his service” (Article 15(6)(b)). 8. The claimant was first awarded ALSO following an application he made in 2002. He worked for his former employer from 2005 until 2020 as a Concierge and then (from 2009) as a Concierge Team Leader. His ALSO award was cancelled in 2013 on review, as his then current earnings from his civilian employment exceeded the earnings he would have received had he remained in his “regular SSD v CAW (WP) [2023] UKUT 246 (AAC) Case no: UA-2023-000242-WP 5 [service] occupation”. However, in December 2020 the claimant took voluntary redundancy from his position as a Concierge Team Leader. He was then unemployed for nearly a year until he took up an appointment as a Concierge with a different employer in November 2021. 9. It is not in dispute that at all material times (i) the salary for a Concierge Team Leader was greater than the pay for a (Gunner) Private but (ii) the salary for a Concierge was less than the pay for a (Gunner) Private. The actual figures do not matter for present purposes. The Secretary of State’s decision on the new claim for ALSO 10. Thus, on 23 December 2020 the claimant made a fresh application for ALSO. On 28 January 2022 – and it is unclear from the appeal file quite why the decisionmaking process took more than a year – Veterans UK wrote to the claimant refusing his application in the following terms: We have considered your claim and confirmed that you are not entitled to an Allowance for Lowered Standard of Occupation. We have only been able to take into account the effect of your accepted conditions have on your working ability. We have confirmed you are earning more in your present job of Concierge Team Leader than you would if you were still in your service occupation of Private. 11. This reasoning was not strictly accurate in that the claimant’s “present job” by that time was as a Concierge, not a Concierge Team Leader. The letter added that the claimant’s civilian occupation (in the latter capacity) provided earnings of £690.88 a week whereas the pay for his regular service occupation was £535.86. He was also advised of his appeal rights. The claimant’s appeal to the First-tier Tribunal 12. On 3 February 2022 the claimant lodged an appeal against the ALSO disallowance decision, stating as follows: I disagree with your decision because on 2nd of December 2020 I was made redundant by [my former employer]. 4th December 2020 I applied for lower standard of occupation. From 2nd December 2020 until 1 November 2021 I have been unemployed with no income, because I had a ongoing claim for lower standard of occupation I was unable to claim Universal Credit. The letter I receive from you dated 28th January 2022 it seems that you have not taken any of these details into account that I was no longer employed by [my former employer] as a Concierge Team Leader and that I was actually unemployed for 11 months. I have just started a new job on 1st November 2021 and I am still on probation period at the moment. 13. In the response to the appeal, the Secretary of State’s appeal writer explained the decision under appeal as follows: The Secretary of State notes that on his appeal form dated 3/2/22, the Appellant states that he was made redundant in December 2020. On the claim form received on 23/12/20 the Appellant stated that he was still employed. However, it is noted that the Appellant did not leave his former job as a result of his accepted disabilities, but because he was made SSD v CAW (WP) [2023] UKUT 246 (AAC) Case no: UA-2023-000242-WP 6 redundant. The Secretary of State considers that the Appellant remains capable of following an occupation with equivalent gross income to that of his Regular Service Occupation, and the decision not to make an award of ALSO remains appropriate. The First-tier Tribunal’s decision 14. The First-tier Tribunal (from now on, simply ‘the Tribunal’) held a remote CVP hearing of the appeal on 26 October 2022. It issued its decision notice (but with extensive summary reasons) a few days later on 31 October 2022. This was followed by the Tribunal’s full written reasons (signed on 3 December 2022, issued on 12 December 2022). 15. I start by making one observation about the content and the formatting of the Tribunal’s decision notice and its full written reasons. Under the heading “DECISION”, both documents record that the decision of the Tribunal was to “ALLOW IN PART” the claimant’s appeal against the Secretary of State’s decision of 28 January 2022. However, neither document actually explains in the text under the heading “DECISION” the extent to which the appeal had indeed been allowed in part. It is only towards the end of the 6th (unnumbered) paragraph on the decision notice that we are told that the Tribunal “find that from 1/11/2021 he was entitled to ALSO. [The claimant] was not capable of following an occupation with equivalent gross income to that of his regular service occupation from 1/11/2021.” Likewise in the full written reasons the Tribunal stated it was satisfied that the claimant’s employment as a Concierge from November 2021 “was at a lower rate of pay than his service equivalent … and therefore find that from 1/11/21 he was entitled to ALSO” (paragraph 8). 16. Leaving aside the substantive issues that arise on this appeal, the Tribunal’s decision notice and full written reasons are therefore less than clear in two respects. First, the documents do not actually spell out in terms that the Tribunal found that the claimant was not entitled to ALSO from 23 December 2020 to 31 October 2021, although that proposition can be inferred or deduced from the Tribunal’s reasons. Second, neither document allows the reader to understand at a glance the extent to which the appeal had subsequently been allowed (namely with effect from 1 November 2021). The reader may be e.g. a busy Veterans UK officer charged with implementing the Tribunal’s decision or an equally busy reviewing or appellate judge who is considering an application for permission to appeal. Either way the reader needs to be able to grasp readily the core features of the decision. However, in the present case a key part of the Tribunal’s decision was buried in the text of the Tribunal’s reasons. 17. Turning to the substantive issues, the Tribunal’s full written reasons to a large extent incorporated its summary reasons (subject to one matter referred to below) and ran to 11 paragraphs in total. Paragraphs 1-3 inclusive set out undisputed factual matters. The reasons then recorded the claimant’s acceptance that as at April 2020 his salary as a Concierge Team Leader with his former employer (£36,050) was greater than his service equivalent salary (£27,961). It also noted that his former employer had made him redundant with effect from 2 December 2020 (paragraph 4). The Tribunal recorded the component elements of the claimant’s redundancy package (paragraph 5). Paragraph 6 is central to the Tribunal’s decision, as it set out the background to the redundancy: SSD v CAW (WP) [2023] UKUT 246 (AAC) Case no: UA-2023-000242-WP 7 6. [The claimant] told us that he was targeted for redundancy because as a team leader, with his seniority, he was on a better salary than other concierges and they wanted to offload him. He had just lost his mother, and felt cornered to either take a salary cut as a senior concierge or take voluntary redundancy which he agreed to do in the end. We agree with Vets UK that he was not made redundant because he was incapable of following his occupation, as his company would have retained him with a salary cut of some £10,000 at a lower grade – they were looking to control their wage bill. 18. Pausing there, and referring back to the lack of clarity mentioned above, the only possible inference from paragraph 6 is that the Tribunal found that the claimant was not entitled to ALSO as at the point he was made redundant (an inference supported by the Tribunal’s observation in paragraph 10 of its full reasons, referred to below). At paragraph 7 the Tribunal noted that after being made redundant, the claimant sought another Team Leader or Head Concierge role but had to settle for a Concierge post with effect from 1 November 2021. As mentioned above, at paragraph 8 the Tribunal found as a fact that this role was remunerated (as is not in dispute) at a lower rate of pay than his regular service occupation. On that basis alone the Tribunal ruled the claimant was entitled to ALSO with effect from 1 November 2021. Paragraph 9 gave directions for implementation of the Tribunal’s decision, while paragraph 10 commented on the claimant’s feeling “that he had lost out on ALSO for the period from 2/12/2020 to 1/11/2021.” In paragraph 11 the Tribunal made some explanatory observations on the inter-relationship between ALSO and Universal Credit. 19. There is just one paragraph of note in the summary reasons which did not find its way into the Tribunal’s full reasons. This was the Tribunal’s observation about the claimant’s decision to take a Concierge post in November 2021: We accept that with the impact of the pandemic, and that senior posts are less numerous, accepting the post of concierge at a lower income was an appropriate and pragmatic decision for [the claimant] and note that he had unsuccessfully attempted for nearly a year to obtain employment at a greater gross income. The employment is appropriate taking into account his education, training and experience given the current economic climate and the period of time he attempted to find employment at his previous grade and remuneration. 20. On 2 February 2023 Tribunal Judge Siddique (who had not sat on the Tribunal which heard the claimant’s appeal) refused the Secretary of State’s application (drafted in-house by Veterans UK) for permission to appeal to the Upper Tribunal. The proceedings before the Upper Tribunal 21. The Secretary of State subsequently filed an expanded and fully reasoned notice of appeal (settled by counsel) directly with the Upper Tribunal. Judge Hemingway granted the Secretary of State permission to appeal. Ms Jennifer Seaman of Counsel (on behalf of the Secretary of State) and Mr Glyn Tucker of the Royal British Legion (on behalf of the claimant) have each provided helpful written submissions on the appeal. Both parties have indicated a wish to have an oral hearing, but then immediately qualified that rather lukewarm preference by stating that this was only if the Upper Tribunal wished to hear further legal arguments. However, I am satisfied that the issues have been well ventilated in SSD v CAW (WP) [2023] UKUT 246 (AAC) Case no: UA-2023-000242-WP 8 the parties’ written submissions. I am not persuaded that an oral hearing of the appeal is necessary or proportionate. I am therefore proceeding to determine the appeal on the papers. The Secretary of State’s grounds of appeal 22. The Secretary of State advances three grounds of appeal. 23. The first is that the Tribunal failed properly to apply Article 15(1) to the facts as they were found, in that it should have taken into account that the occupation of Concierge Team Leader was still suitable for the claimant for the purposes of Article 15(1)(b). 24. The second ground of appeal is that the Tribunal failed properly to apply Article 15(1) to the facts as they were found, in that it should not have taken into account the claimant’s new job as a Concierge and its (lower) salary. 25. The third ground of appeal is that no person or tribunal acting judicially and properly instructed as to the law could have come to the decision the Tribunal reached. 26. This last ground of appeal adds nothing to the first two grounds so I propose to say no more about it. Analysis 27. This appeal concerns the proper interpretation and application of Article 15(1)(b) of the SPO. The question is therefore whether the claimant’s “disablement is such as to render him incapable, and likely to remain permanently incapable, of following his regular occupation and incapable of following any other occupation with equivalent gross income which is suitable in his case taking into account his education, training and experience”. 28. The test under Article 15(1)(b) needs to be taken in stages. First, and indisputably, the claimant’s “disablement is such as to render him incapable, and likely to remain permanently incapable, of following his regular occupation” as a (Gunner) Private. 29. The question then is secondly whether, in the alternative, he is “incapable of following any other occupation with equivalent gross income which is suitable in his case taking into account his education, training and experience”. However, this is not a stand-alone requirement which can be applied in isolation. The qualifying test is governed by the opening phrase in Article 15(1)(b), namely that the individual’s “disablement is such as to render him incapable … (etc).” This requirement falls to be considered at two points in time, given the way the Tribunal approached the case. The first was at the date of claim in December 2020, when the claimant was being made redundant from his position as Concierge Team Leader. The second was in November 2021, when he took up his appointment as a Concierge with his new employer. 30. In the former instance the Tribunal found as a fact that the claimant was not made redundant from his previous position as Concierge Team Leader because of his accepted conditions (i.e. his disablement). Rather, he was made redundant as part of a cost-cutting exercise by his former employer. The claimant therefore ceased to be employed as a Concierge Team Leader for reasons not related to his disablement and the accepted conditions. The Tribunal was therefore correct SSD v CAW (WP) [2023] UKUT 246 (AAC) Case no: UA-2023-000242-WP 9 to find (albeit it did so only by inference) that the claimant was not entitled to ALSO as from the date of claim in December 2020. At that point in time his “disablement was not such as to render him … incapable of following any other occupation with equivalent gross income which is suitable in his case taking into account his education, training and experience.” He could still do that job as a Concierge Team Leader – it was just that his former employer had decided to take steps to rein in its wage bill and so to dispense with his service. 31. What then of the latter point in time, namely in November 2021 when the claimant took up the job as Concierge with the new employer? Had anything changed? Clearly the claimant had spent nearly a year being unemployed and searching for a Concierge Team Leader role but unfortunately without any success. Clearly after such a period of time the claimant had taken the pragmatic and understandable decision to accept a post as a Concierge. Clearly his new salary in that role was less than the pay he would have received both as a Concierge Team Leader and as in his regular (service) occupation. However, equally clearly, nothing had changed in terms of the application of Article 15(1)(b) of the SPO. His disablement was not such as to render him incapable of following the occupation of Concierge Team Leader. He could still do that more senior job and would no doubt have snapped up such an appointment had a suitable vacancy arisen. It was the wider state of the labour market that rendered him incapable of following his preferred occupation, and not his disablement. Accordingly, the occupation of Concierge Team Leader remained “suitable in his case taking into account his education, training and experience”. 32. Thus, the focus of the language of Article 15(1)(b) is very much on the individual war pensioner and not on wider externalities. This is evident in at least two respects. First, as noted, under the SPO it is the disablement, the accepted conditions, which must render the claimant incapable of following a relevant occupation, and not the state of the labour market. Secondly, the test for such a relevant (civilian) occupation is whether it is “suitable in his case taking into account his education, training and experience”. Those latter three attributes are uniquely personal characteristics and cannot be extended to cover the state of the wider labour market. The test is therefore one which focusses on the individual’s reduced earning capacity as a result of service (see e.g. Secretary of State for Defence v DK [2009] UKUT 51 reported as R(AF) 4/09 at paragraph 24). 33. It follows that the Tribunal misdirected itself by posing the test in terms of whether the claimant had made a sensible and pragmatic decision to take up the Concierge appointment in November 2021 in the light of the prevailing labour market conditions. In its summary reasons, the Tribunal reasoned as follows: “The employment is appropriate [sic: what the Tribunal meant to say was ‘suitable’] taking into account his education, training and experience given the current economic climate and the period of time he attempted to find employment at his previous grade and remuneration.” The Tribunal should have ended that passage with “education, training and experience”. There was no warrant under the SPO for introducing the qualifying phrase starting with “given”. Those givens were obviously important in the real world, but they do not form part of the assessment process under Article 15(1) of the SPO. 34. It follows that the Tribunal erred in law in the two respects identified by the Secretary of State. First, it should have taken into account that the occupation of Concierge Team Leader was suitable for the purposes of Article 15(1)((b) of the SSD v CAW (WP) [2023] UKUT 246 (AAC) Case no: UA-2023-000242-WP 10 SPO for the whole period in question. Second, the Tribunal was wrong to take into account the claimant’s new job as Concierge and its salary with effect from November 2021. 35. Finally, the Secretary of State has made reference at various stages in these proceedings to the Ministry of Defence’s policy and operational guidance to decision-makers on dealing with claims for ALSO. I have not relied on, or referred to, such guidance in this decision for the simple reason that it is just that, guidance. This appeal must be determined by reference to the law and not to the Secretary of State’s internal guidance, however helpful that is intended to be. 36. In conclusion, I am satisfied that the First-tier Tribunal erred in law for the reasons set out above. I therefore allow the Secretary of State’s appeal to the Upper Tribunal and set aside the Tribunal’s decision. This is not a case in which it is necessary to remit the appeal for re-hearing before a fresh Tribunal, as the material facts are not in dispute and the appeal does not require the specialist input of the medical member or service member who would sit on a first instance new panel. The re-made decision is that the claimant’s appeal to the First-tier Tribunal against the Secretary of State’s decision of 28 January 2022 is refused. This is because the claimant was not incapable of following an occupation with equivalent gross income to that of his regular service occupation. Accordingly, the claimant is not entitled to ALSO with effect from the date of claim on 23 December 2020 (or from 1 November 2021). 37. Although I do not need to rely on the point for my decision, I note that the construction of Article 15(1) of the SPO advanced above is consistent with the approach taken in relation to the equivalent allowance under the civilian industrial injuries scheme. That scheme used to have a special hardship allowance for individuals with reduced earning capacity (later replaced by reduced earnings allowance, itself since abolished for new claims). The case law of the Industrial Injuries Commissioners showed that special hardship allowance was not payable where a claimant’s failure to obtain employment was due to causes other than their loss of faculty, e.g. to “slackness of trade” (reported decision R(I) 29/53 at paragraph 7). Conclusion 38. I therefore conclude that the decision of the First-tier Tribunal involves an error of law. I allow the appeal and set aside the decision of the Tribunal (Tribunals, Courts and Enforcement Act (TCEA) 2007, section 12(2)(a)). I re-make the decision under appeal (TCEA 2007, section 12(2)(b)(ii)). I substitute the following decision for the decision of the Tribunal, namely that the claimant’s appeal against the Secretary of State’s decision of 28 January 2022 is refused. This is because the claimant is not entitled to ALSO with effect from the date of claim on 23 December 2020 (or from 1 November 2021). This, in turn, is because the claimant was not incapable of following an occupation with equivalent gross income to that of his regular service occupation. My decision is also as set out above. Nicholas Wikeley Judge of the Upper Tribunal Authorised for issue on 5 October 2023
EM v Secretary of State for Defence [2023] UKUT 222 (AAC)
UT Ref: UA-2023-SCO-000033-WP
IN THE UPPER TRIBUNAL
ADMINISTRATIVE APPEALS CHAMBER
On appeal from Pensions Appeal Tribunals for Scotland
Between:
EM
Appellant
- and –
The Secretary of State for Defence
Respondent
Before: Upper Tribunal Judge Wright
Decision date: 5 September 2023
Decided on the papers.
DECISION
The decision of the Upper Tribunal is to dismiss the appeal. The decision of the Pensions Appeal Tribunals for Scotland made on 14 December 2022 under case number PATS/E/22/0121 did not involve the making of any material error of law.
REASONS FOR DECISION
1. This is an appeal from a decision of the Pensions Appeal Tribunals for Scotland dated 14 December 2022 (“the PATS”), following a hearing on 14 December 2022. By that decision the PATS refused the appeal and upheld the Secretary of State’s decision of 8 October 2021. The Secretary of State had rejected a retrospective claim, made by the deceased appellant’s daughter on 15 March 2021, for restoration of a war widow’s pension for the period 1 October 1977 to 31 July 1995 to the appellant (or strictly speaking to her estate as the appellant had died on 9 August 2015).
2. Leave to appeal to the Upper Tribunal was granted by the President of the Pensions Appeal Tribunals for Scotland, Judge Caldwell KC on 20 March 2023 on the short basis that the appellant had stated an arguable case that was worthy of consideration by the Upper Tribunal.
3. It is necessary for the understanding of this appeal to first sketch in the factual background to it.
4. The appellant was born in October 1915. She married in July 1938 and her husband went on to serve in the RAF from August 1940 until he was medically discharged in August of 1944 because by then he, sadly, had pulmonary tuberculosis. It was accepted that the tuberculosis had been aggravated [1] by service and, because of this, when the appellant’s then husband died on 12 December 1948 she became entitled to a war widow’s pension. The appellant remarried in 1973, as a result of which the war widow’s pension ceased to be payable to her. That marriage ended on the death of the appellant’s second husband on 1 October 1977. No claim to have the war widow’s pension was made by the appellant at that point in time. However, the appellant made a claim for restoration of her war widow’s pension on 1 August 1995 and it was paid to her from that date of claim until she died on 9 August 2015. After the appellant’s death, her daughter was responsible for the ingathering and winding up of her late mother’s estate and it would seem it was in that capacity that the daughter made a claim, on 15 March 2021, for the war widow’s pension to be restored in respect of her late mother for the period 1 October 1977 to 31 July 1995. It was that 15 March 2021 claim which was rejected by the Secretary of State for Defence in his decision of 8 October 2021.
5. I will continue to refer to the person on whose behalf it is being argued her war widow’s pension ought to have been restored from 1 October 1977 to 31 July 1995 as ‘the appellant’ even though she died in August 2015. No discourtesy is intended
6. The issue on the appeal, as it was before the PATS, is whether under the applicable law the appellant was entitled to have a war widow’s pension restored for the period 1 October 1977 to 31 July 1995 in circumstances where, as is accepted, no in-time claim was made by the appellant for that period.
7. The Royal Warrant concerning Retired Pay, Pensions etc dated December 1943 (Cmd. 6489) was the legislation that applied to the appellant up to and including the time of the death of her second husband on 1 October 1977. It was that legislation which provided that entitlement to the war widow’s pension ceased when the widow remarried. Moreover, and for the purposes of this appeal more importantly, that legislation made no provision for restoration of the war widow’s pension on the ending (for whatever reason) of the subsequent marriage. Accordingly, as a matter of the then applicable law, there was no legal basis for a war widow’s pension being restored in October 1977 when the appellant’s second husband died.
8. Nothing changed in this respect when the above Royal Warrant was replaced with the Naval, Military and Air Forces Etc (Disablement and Death) Service Pensions Order 1983 (“the SPO 1983”). Article 42(1) of the SPO 1983 contained an identical general provision that a war widow’s pension ceased to be payable if she married or lived with a man as his wife, but nothing in the rest of the SPO 1983 provided that the war widow’s pension would be restored (with or without a claim) if that subsequent marriage ended.
9. This legislative picture did change, however, with the enactment of the Pensions Act 1995 with effect from 19 July 1995. Section 168 of the Pensions Act 1995 provided on its enactment as follows (so far as is relevant to this appeal):
“War pensions for widows: effect of remarriage
168:-(1) In determining whether a pension is payable to a person as a widow under any of the enactments mentioned in subsection (3) in respect of any period beginning on or after the commencement of this section, no account may be taken of the fact that the widow has married another if, before the beginning of that period, the marriage has been terminated or the parties have been judicially separated.
(2) For the purposes of this section—
(a) the reference to the termination of a marriage is to the termination of the marriage by death, dissolution or annulment,….
(3) The enactments referred to in subsection (1) are—
(a) The Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 1983, and any order re-enacting the provisions of that order….”
(The underlining is mine and has been added for emphasis.)
10. I have underlined the words in section 168(1) of the Pensions Act 1995 because they show that the lifting of the statutory rule, that marriage by the war widow to a second husband ended entitlement to her war widow’s pension, only applied from 19 July 1995 onwards. Putting this another way, nothing in section 168 of the Pensions Act 1995 changed the law before 19 July 1995 or provided any lawful basis for a war widow’s pension being restored on the war widow’s second or subsequent marriage ending for any period before 19 July 1995.
11. This then leaves the period from 19 July 1995 to 31 July 1995. It is important to note in this respect that section 168(1) did not provide in its enacted form that from 19 July 1995 a war widow’s pension would be restored simply on the widow’s second or subsequent marriage having ended. Where section 168(1) benefitted the appellant, but only from 19 July 1995, was in laying down that her second marriage should be ignored for the purposes of deciding whether the war widow’s pension could be made payable to her again (i.e. restored), because that marriage had terminated before 19 July 1995. However, the opening words read, “[i]n determining whether a pension is payable” (my emphasis), and this makes it clear that whether a widow may have her war widow’s pension restored will depend upon her satisfying any other relevant rules in the governing statutory scheme.
12. At the time of the appellant’s claim for restoration of her war widow’s pension on 1 August 1995 the governing legislation in respect of war pensions, including a war widow’s pension, was the SPO 1983. At that time the SPO 1983 made no provision for an award to be made in the absence of a claim being made for that award: see Article 4 of the SPO 1983. The amendments made to the SPO 1983 with effect from 20 December 2006 under the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Amendment (No. 3) Order 1996 were to make clear that a claim was required on a particular form under the SPO 1983 for entitlement to any pension under the SPO 1983 to arise, rather than to set out a (new) requirement for a claim to be made. The only relevant exception in respect of entitlement to a war widow’s pension was in Article 3B(3)(a) of the SPO 1983, as inserted by the No.3 Amendment Order of 1986, which provided that a claim for a war widow’s pension was not required if the service member in respect of whom such a widow’s pension was payable had died in service. That rule could not have assisted the appellant as her first husband died after his service had ended.
13. I should add that it is not clear to me that the Secretary of State’s decision which was under appeal in this case was concerned with a reconsideration of the decision made by him sometime on or about 1 August 1995 to restore the appellant’s war widow’s pension from 1 August 1995. The appeal to the PATS concerned the claim made by the appellant’s daughter on 15 March 2021 for restoration of a war widow’s pension to the appellant’s estate for the period 1 October 1977 to 31 July 1995. If that was the correct claim under consideration by the Secretary of State in his decision of 8 October 2021, the governing statutory code is the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 2006 (“the SPO 2006”). However the same result applies on either analysis as Article 35(3)(a) of the SPO 2006 (also) sets out that a claim for a war widow’s pension (now called a “surviving spouse’s or surviving civil partner’s pension”) is not required only where the member of the armed forces by reference to whose death the pension would be payable “died whilst serving in the armed forces”.
14. Nothing said by the Court of Appeal in Deakin v Secretary of State for Defence [2019] EWCA Civ 571; [2019] 4 WLR 61, runs contrary to this analysis, which is largely how the PATS decided the appeal.
15. None of the appellant’s grounds of appeal provide any persuasive legal basis for departing from the above analysis. The only exception to the general rule that a claim must be made in order to be entitled to a widow’s pension is where (here) the husband of the widow died during or whilst in service. That exception did not apply in the appellant’s case and therefore it was correctly decided that the war widow’s pension only arose from the date of her claim on 1 August 1995. The fact that the appellant’s first husband’s death was due to or aggravated by, or as it is put “as a direct result of”, his service does not alter this. The link between service and the tuberculosis gave rise to the appellant being entitled to a war widow’s pension but only if, and from when, she made a claim for it.
16. It is for all these reasons that the appeal is dismissed.
Approved for issue by Stewart Wright
Judge of the Upper Tribunal
On 5 September 2023
[1] The appellant’s family object to this characterisation of the role of the RAF in the appellant’s first husband’s tuberculosis. They seek a finding that his tuberculosis was caused by his service. However, that was not an issue which arose on the appeal before the PATS, nor did it need to arise, and as this appeal is being dismissed it is not for the Upper Tribunal to make findings as to the cause of the first husband’s tuberculosis.
[2022] UKUT 208 (AAC)
Appeal No. CAF/1362/2020
IN THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
UA-2020-001264-CAF
On Appeal from the First-tier Tribunal (War Pensions and Armed Forces Compensation ASS/00427/2019
BETWEEN
Appellant JOC
and
Respondent THE SECRETARY OF STATE FOR DEFENCE
BEFORE UPPER TRIBUNAL JUDGE WEST
Hearing date: 26 April 2022
Decision date: 18 July 2022
Representation: Mr Glyn Tucker (for the Appellant)
(instructed by the Royal British Legion)
Mr Adam Heppinstall QC, counsel (for the Respondent)
(instructed by the Government Legal Department)
DECISION
The decision of the First-tier Tribunal sitting at Birmingham on 25 February 2020 under file reference ASS/00427/2019 does not involve an error of law. The appeal against that decision is dismissed.
This decision is made under section 11 of the Tribunals, Courts and Enforcement Act 2007.
REASONS
Introduction
1. This decision concerns hearing disablement in a “spanning” case, where the claimant’s military service both predated and postdated 6 April 2005 and how to deal with hearing disablement arising due to his different periods of service, which are governed by separate statutory codes of compensation.
2. This is an appeal, with my permission, against the decision of the First-tier Tribunal sitting at Birmingham on 25 February 2020.
3. I shall refer to the appellant hereafter as “the claimant”. The respondent is the Secretary of State for Defence. I shall refer to him hereafter as “the Secretary of State”. I shall refer to the tribunal which sat on 25 February 2020 as “the Tribunal”.
4. The claimant was discharged from Territorial Army service on medical grounds on 23 November 2017. The effect of article 35(2) of the Naval, Military and Air Forces etc. (Disablement and Death) Service Pensions Order (SI 20067/606) (“the 2006 Order”) was that the Secretary of State was required to consider whether a war pension was payable under the 2006 Order without a claim being made by the claimant.
5. In his original decision dated 19 June 2018 the Secretary of State accepted that the claimant’s hearing loss was due to his military service between 1984 and 6 April 2005 for the purpose of article 40 of the 2006 Order and assessed the hearing loss as 53dB (right ear) 62 dB (left ear) at 30% final.
6. However, on 10 December 2018 the Secretary of State purported to exercise his power to carry out a review of that decision pursuant to article 44 of the 2006 Order and produced a further certificate which changed the assessment of the hearing loss to Nil. In summary, the ground for the review was expressed to be “a change in the climate of medical opinion” and “further clarification of policy and instruction to take account of the first available audiogram after 06 04 2005”, namely an audiogram dated 26 February 2009. That is a reference to an audiogram of that date which showed that the level of hearing loss at that date in the left and right ears at 1, 2 and 3 kHz was significantly less than 50 dB in each ear. The original assessment was therefore overturned. The revision continued:
“In this spanning case, it is appropriate to separate hearing disablement arising due to his SPO and AFCS periods of service.
The assessment is based upon the audiogram dated 26.2.09, which equates to a nil assessment. Under these circumstances, consideration under the Armed Forces Compensation Scheme for the post-6.4.2005 service period, is advised”.
7. The claimant appealed against that decision. The matter came before the Tribunal on 25 February 2020 when the claimant appeared with his wife and his representative, Mrs Green of the Royal British Legion, and gave oral evidence. The Secretary of State’s representative, Mr Frith, appeared by telephone.
The Decision Notice
8. The Tribunal dismissed the appeal by a majority. In its decision notice dated 26 February 2020 the decision of the majority was to uphold the Secretary of State’s assessment on review as notified on 14 December 2018 of nil% (final) in respect of bilateral noise induced sensorineural hearing loss (1984-2005).
9. The service member’s dissenting decision was to allow the appeal against the assessment as the grounds given for the decision to carry out the review and the decision to review the award to the detriment of the claimant (a change in medical opinion) were flawed and unsubstantiated and in any event the basis for assessment entailed an incorrect reading of article 42(8) of the 2006 Order as it failed to assess his hearing loss at termination of his complete service.
The Statement Of Reasons
10. In its statement of reasons, so far as material, the Tribunal stated that
“The hearing
3. The Appellant attended the hearing accompanied by his wife and was represented by Mrs Green of the Royal British Legion. The Secretary of State was represented by Mr A Frith, who attended the hearing by telephone.
The proceedings
4. The Appellant suffers from Bilateral noise induced sensorineural hearing loss and associated tinnitus. This significantly impairs his ability to participate in ordinary conversations even with the assistance of hearing aids. In order to accommodate the participation of Mr Frith in the hearing, the telephone speaker was moved closer to the area in the hearing room where the Tribunal was sitting.
5. The hearing commenced initially at 10.04 am and after the Tribunal Judge’s introduction, Mr Frith was asked to introduce the Secretary of State’s case.
6. It became clear within seconds that the Appellant was struggling to hear Mr Frith and (with his agreement) the Appellant moved to an area in the hearing room within some 10 feet of the telephone and the Tribunal. The Tribunal Judge checked throughout the hearing that the Appellant was able to participate in the proceedings and he was invited to draw attention to any parts of the proceedings that he could not hear properly so they could be repeated.
7. The Tribunal also adjourned for some 6 minutes shortly after the commencement of the Appellant’s evidence, when the Appellant became distressed. During each adjournment, the telephone connection with Mr Frith at Veterans UK was disconnected. The connection was made again when the Appellant and his representative had entered the hearing room.
Decision
8. The majority decision of the Tribunal is to uphold the assessment of the Secretary of State upon review as notified on 14th December 2018 of Nil% (Final) in respect of the following condition: Bilateral noise induced sensorineural hearing loss including tinnitus (1984-2005) (“the hearing loss”).
9. In these reasons references to the page numbers in the Response are in [].
The nature of the appeal
10. The Appellant was discharged from Territorial Army service on medical grounds on 23 November 2017. The effect of article 35(2) of the Naval, Military and Air Forces etc. (Disablement and Death) Service Pensions Order (SI 20067/606) (“the 2006 Order”) is that Veterans UK were required to consider whether a War Pension was payable under the 2006 Order without a claim being made by the Appellant in such circumstances.
11. The Secretary of State by a decision evidenced by a certificate of entitlement and assessment dated 19th Judge 2018 [5-7] accepted the hearing loss was due to the Appellant’s service between 1984 and 6th April 2005, for the purpose of article 40 of the 2006 Order and assessed the hearing loss as 53dB (right easer [sic]) 62 dB (left ear) at 30% final.
12. On 10th December 2018 the Secretary of State purported to exercise his power to carry out a review of that decision pursuant to article 44 of the 2006 Order (see the record of the decision at [10] and produced a further certificate of 10th December 2018 which changed the assessment of the hearing loss to Nil. In summary, the ground for the review was expressed to be “a change in the climate of medical opinion”: see [7] and “further clarification of policy and instruction to take account of the first available audiogram after 06 04 2005” namely the audiogram dated 26 02 2009: see [7] (reverse] [sic]. This is a reference to an audiogram contained on the reverse of a page [32] being part of a Medical Board of the same date which showed that the level of hearing loss at that date in the left and right ears at 1, 2 and 3 kHz was significantly less than 50 dB in each ear.
Scope of this appeal
13. On about 8th March 2019 the Appellant sought a review of his hearing loss: see application at pages [84-90]. According to the terms of reference, the decision made on that review was not the subject of this appeal and any decision upon that review application is not the subject of the decision considered in these reasons or the decision under appeal”.
Statutory framework for this appeal
14. This appeal arises under section 5 of the Pensions Appeal Tribunals Act 1943 (as amended) (“the Act”). The Tribunal applied the legal framework set out in the Act and in Articles 1, 5, 42 and 44 of the 2006 Order. Accordingly, the Tribunal has not taken into account circumstances that did not obtain at the date of the decision.
The effect of the relevant statutory provisions
15. The Tribunal’s task is to look at the decision under articles 42 and 44 of the 2006 Order and decide whether it was rightly made for the grounds stated, given the circumstances that obtained on that date.
…
“Proceedings at the hearing
19. The Tribunal considered the Response (114 pages), the evidence of the Appellant and submissions by Mrs Green and Mr Frith, both very experienced representatives.
20. In summary the Tribunal finds as follows in relation to the Appellant’s hearing loss:
a. The Appellant was born in 1963. He served between 1984 and November 2017 with a number of cap badges including The Infantry, the Royal Artillery and towards the end of his service the Royal Logistics Corps he achieved the rank of Major, a very responsible role.
b. The Secretary of State accepted the description of his duties in the report of Lt Col Banfield Consultant ENT Surgeon, in the clinic letter of 16 January 2015 at [39-40] where it was said the Appellant had done a lot of work on the ranges likely to have exposed him to potentially damaging loud noise. At that stage, hearing loss was described as severe across the frequency range but most marked in the high tone frequencies.
c. The Appellant gave a history of extensive in service shooting running ranges and competition ranges. He organised competitions and took part in the competitions. From about 1984 -1996 he was involved in duties of a gun position officer.
d. Despite extensive questioning the Appellant did not appear to have been exposed to explosions or other acoustic trauma giving rise to the hearing loss.
e. The audiogram dated 26 02 2009 was found on the reverse of page [32] being part of a Medical Board of the same date which showed that the level of the hearing loss at that date in the left and right ears at 1, 2 and 3 kHz were significantly less than 50dB in each ear.
f. There are later audiograms of 17 04 2009 at [33] and 26 03 2010 at [34] which showed that the level of the hearing loss at that date in the left and right ears at 1, 2 and 3 kHz were significantly less than 50dB in each ear.
g. There were other audiograms in the Response in 1998 [30] and 2002 [31] which showed a similar but not identical pattern of hearing loss in the left and right ears at 1, 2 and 3 kHz at levels significantly less than 50dB in each ear.
h. As far as can be ascertained from the audiograms in the response thereafter undertaken in 2011 [35], 2012 at [36] and 2013 at [37], the first time the average of hearing loss in the left and right ears at 1, 2 and 3kHz exceeded 50 dB appears to have been in 2013: see the audiogram at [37] dated 16 08 2013.
i. The Tribunal was informed by the Appellant that he had been considered for an award for hearing loss under the Armed Forces Compensation Scheme (“the AFCS”) after he left service but no award had been made. The Appellant was uncertain but Mrs Green thought that award had been rejected because it had not been shown that the requisite level of hearing loss was caused by service after 6th April 2005 (the period that is covered by the AFCS). None of the AFCS papers were available to the Tribunal, which was accordingly unable to reach a concluded view about this issue.”
The Majority Decision
11. The Tribunal was, however, split as to the correct disposal of the appeal. The analysis of the majority was that
“Analysis - majority decision
21. The Tribunal’s task is to make an assessment of disablement at the date of the decision in accordance with articles 5, 42 and 44 of the 2006 Order.
22. The award under the 2006 Order can only relate to service before 6th April 2005: see article 5 of the 2006 Order read with item 54 of part II of Schedule 6 to the 2006 Order applied by article 1(2) of the 2006 Order.
23. Article 42(8), 42(10) and part VI of Schedule 1 to the 2006 Order are drafted on the assumption that that [sic] average hearing loss for each ear at 1, 2 and 3 kHz is 50 dB or more at termination of service. Those provisions were however all drafted when the War Pension Scheme was the only scheme in force and the AFCS did not apply to hearing loss due to service after 6th April 2005.
24. Article 42(9) of the 2006 Order contemplates that earliest available evidence of the degree of disablement due to service whether in terms of audiometric test or other evidence relevant to level of hearing loss at termination of service. These provisions are directed to assessing disablement due to “service” as defined by the 2006 Order, that is to say service before 6th April 2005.
25. The ground given by the Secretary of State for the review of the June 2018 decision “change in climate of medical opinion” is inaccurate and less than frank. No such change is hinted at or referred to in the evidence. Whether the review took place under article 44(1) and/ or 44(2) or article 44(4) of the 2006 Act, the real reason for the change in the Secretary of State’s approach is that the June 2018 decision was made as the result of a mistake [as to] a material fact or as to the law, namely that the 2017 audiogram was good evidence of hearing loss caused by (i.e. due to) service before 6th April 2005.
26. The Majority of the Tribunal disagree with the service member’s approach to interpretation of article 42 of the 2006 Order which places emphasis upon assessing the hearing loss at termination of service, partly because under article 5(2) no claim for War Pension can be made or take effect until termination of service. In the majority’s view the provisions of the 2006 Order cannot be properly read as to enable or require hearing loss due to service before 6th April 2005 to be assessed by audiograms or other evidence at termination of service many years after that date where there is available evidence much closer to 6th April 2005.
27. The Tribunal Judge and Medical member would dismiss the appeal but encourage the Appellant to seek urgent advice about whether an appeal against the refusal of an award under the relevant AFCS Scheme might succeed.”
The Minority Decision
12. The service member dissented:
“28. Grounds for carrying out a review. The reasons given for carrying out the review are on page [7] of the Response. At paragraph 4 the box has been ticked for “a change in the climate of medical opinion” not a change in the interpretation of the law. At the hearing, Mr Frith the Vets (UK) rep was given the opportunity to explain further why the review had been carried out but was not able to provide any fuller explanation. The narrative on the reverse of Page [7] indicates that it was a “clarification of policy” by the Vets (UK) Medical Advisors. RBL submitted that this reflected a change in the interpretation of the law, not the law itself. My view is that neither a change in the climate of medical opinion, nor a change in interpretation of the law meets the criteria under Article 44(4) for a revision of the assessment to the detriment of the appellant. Therefore, the appeal should succeed and the original assessment of 30% should stand.
Date used for “termination of Service”
29. Whilst the above reason is a technical ground as to why the Appellant’s assessment should not be reduced, there is a more substantive issue in this appeal which is likely to affect many more Servicemen. That is the date at which hearing loss is measured, both for this Appellant and for others in a similar position who have served under both the SPO and AFCS. It is clear from the evidence before us that the Appellant has been subjected to loud noise throughout his service and that this has given rise to hearing loss. This fact is not disputed.
30. The original award was based on his level of disability from hearing loss at the date nearest to his actual release from his Service in the armed forces. This is recorded in the medical board of 17 [April] 2017, which led to his medical discharge. At this time, the average hearing loss at 1, 2 & 3 kHz was recorded at 53dB in the right ear and 62dB in the left ear. This gave rise to an award of 30% under the 2006 Order and includes all the hearing loss caused by the whole of his service in the armed forces.
31. When the award was revised, under current Vets UK policy, only the hearing loss at the date nearest to April 2005 when the SPO was replaced by the AFCS was measured. In the Appellant’s case this was from an audiogram in 2009 recorded on page [33] of the Response. At this time his average hearing loss in the left ear was 28dB, and in the right 33dB. This is below the threshold for an award under the 2006 Order.
32. The Vets UK case is that after 2005 the Appellant’s hearing was not damaged further by Service “under the SPO”. The reason for my dissenting opinion is that I believe that his hearing was damaged due to serv[ic]e up to his medical discharge in 2017, and the current Vets UK policy of dividing hearing loss into separate periods of Service when neither the SPO or the AFCS was in force is wrong.
33. My reasoning is supported by the fact that no Serviceman’s claims under the SPO are accepted until the termination of their complete period of Service not just their SPO Service - otherwise all Servicemen would immediately have been entitled to SPO awards from April 2005. Similarly, the period for which Article 40 is replaced by Article 41 for consideration of entitlement is 7 years after “the termination of Service” - not the termination of “SPO Service” in 2005.
34. So, for these legal purposes, termination of Service means termination of all Service. The Vets UK use of the date of April 2005 as “termination of Service” for the measurement of hearing loss in the Appellant’s case (and in other cases) is inconsistent with its other legal interpretation of termination of Service. Because of the specific high levels of hearing loss required for an award under either the SPO or the AFCS this inconsistency works to the disadvantage of the claimant. In the Appellant’s case very significantly to his disadvantage.
35. We considered this claim under the 2006 Order alone, in accordance with the Terms of Reference for the Appeal on page [1] of the response. We did not consider the Appellant’s hearing loss under the AFCS, although we noted that at page [82] Vets UK informed him that they would advise their colleagues to consider his hearing loss under the AFCS, and that at page [114] they noted that his hearing loss had been disallowed under the AFCS. It became apparent at the hearing that the Appellant had not yet appealed the AFCS decision, but he was still in time to do so. Because there was no appeal yet under the AFCS we decided to carry on with this appeal, although if there had been an AFCS appeal we would have adjourned the case to have both matters heard together.
36. At the end of his Service, the Appellant has been left with a significant hearing loss, caused by exposure to high levels of noise in Service. The hearing loss would attract a significant award if it was considered under the SPO - as it was in the original award. If it was all considered under the AFCS it would also be assessed at level 8 - a substantial award. The way that only part of [his] hearing loss due to Service is being considered in this case by Vets UK is unjust and wrong, and that is why I would allow the appeal.”
The Appeal
13. The claimant sought permission to appeal, which was refused by the senior judge of the Chamber on 3 July 2020. That decision was issued to the parties on 23 July 2020. The claimant applied to the Upper Tribunal for permission to appeal on 21 August 2020, essentially on the basis of the service member’s dissenting decision. On 21 October 2020 I acceded to that application and granted him permission to appeal.
14. The matter was originally due to be heard in Birmingham on 11 October 2021, but had to be adjourned because of the sad death of the Secretary of State’s representative shortly before the hearing. I eventually heard the appeal in Birmingham on the morning of 26 April 2022. The claimant was represented by Mr Glyn Tucker of the Royal British Legion. The Secretary of State was represented by Mr Adam Heppinstall QC of counsel. I am obliged to both of them for their clear and economical submissions.
The Legislation
15. The appeal arises under the Pensions Appeal Tribunals Act 1943 (“the Act”).
16. So far as is material, the 2006 Order provides (with emphasis added for ease of reference) that
“General conditions for Part II
5(1) Under this Part, awards may be made in accordance with this Order in respect of the disablement of a member of the armed forces which is due to service before 6th April 2005 and may be made provisionally or upon any other basis.
(2) An award in respect of the disablement of a member shall not be made to take effect before the termination of his service or, in the case of an officer, while he is an officer on the Active List.
(3) Except where paragraph (4) applies, an award under this Part of this Order shall not be made in respect of—
(a) noise-induced sensorineural hearing loss; or
(b) a related condition or symptom if it is accompanied by noise-induced sensorineural hearing loss
unless the degree of disablement from that loss alone is assessed as being at least 20 per cent. [1]
(4) Where the degree of the disablement in respect of noise-induced sensorineural hearing loss, or in respect of such hearing loss and a related condition or symptom, is assessed at less than 20 per cent, and a claim for an award in respect of that disablement was made prior to 7th January 1993, payment of any award resulting from that claim shall be made as though paragraph (3) were omitted.
…
Determination of degree of disablement
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;
…
(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.
(3) Where the average hearing loss at frequencies of 1, 2 and 3 kHz is not 50 dB or more in each ear, the degree of disablement in respect of that loss shall be assessed at less than 20 per cent.
(4) Neither noise-induced sensorineural hearing loss nor a related condition or symptom shall be taken into account in determining a member's total degree of disablement if the degree of disablement in respect of that loss alone is less than 20 per cent.
(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 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.
(7) An assessment of the degree of disablement due to service in respect of noise-induced sensorineural hearing loss shall be based solely on hearing loss due to service and shall not include any hearing loss due to age or other factors which are not related to service as a member of the armed forces and which arise after service.
(8) Noise-induced sensorineural hearing loss shall be measured by reference to audiometric tests, where available, conducted at or about the termination of the member's service and the degree of disablement due to service shall be assessed in accordance with paragraph (10).
(9) Where no such tests were conducted or are available, the assessment of the degree of disablement due to service shall be informed by the earliest available evidence, whether in terms of audiometric tests or other evidence relevant to the level of hearing loss that existed at termination of service and the assessment shall have regard to the relative percentages of degrees of disablement and measured hearing loss specified in Table 1 of Part VI of Schedule 1 but any hearing loss arising after termination of service shall not be included in the assessment.
(10) Subject to paragraphs (7), (8), (9) and (11), the degree of disablement in respect of noise-induced sensorineural hearing loss which is due to service shall be assessed by—
(a) determining the average total hearing loss for each ear at 1, 2 and 3kHz frequencies; and then by
(b) determining the percentage degree of disablement for each ear in accordance with Table 1 of Part VI of Schedule 1; and then by
(c) determining the average percentage degree of binaural disablement in accordance with the following formula: ((degree of disablement of better ear x 4) + (degree of disablement of worst [2] ear)) divided by 5; and
(d) in subparagraph (c) “better ear” means that ear in which the claimant's hearing loss is the less and “worse ear” means that ear in which the claimant's hearing loss is the more.
(11) Paragraphs (8), (9) and (10) shall not be applied so as to reduce any award made prior to 12th April 2004.
(12) For the purpose of determining the percentage degree of disablement in Table 1 of Part VI of Schedule 1, any fraction of an average hearing loss shall, where the average hearing loss is over 50dB, be rounded down to the next whole figure.
…
Review of decisions, assessments and awards
44(1) Subject to the provisions of paragraphs (3), (4) and (5) and to the provisions of paragraph (8)—
(a) any decision accepting or rejecting a claim for pension; or
(b) any assessment of the degree of disablement of a member of the armed forces; or
(c) any final decision that there is no disablement or that the disablement has come to an end
may be reviewed by the Secretary of State at any time on any ground.
(2) Subject to the provisions of paragraphs (4), (5), (8) and (9), any award under this Order may be reviewed by the Secretary of State at any time if 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;
(b) there has been any relevant change of circumstances since the award was made;
(c) the award was based on a decision or assessment to which paragraph (1) of this article applies, and that decision or assessment has been revised.
…
(4) Subject to the provisions of paragraph (9), 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; or
(b) …
(c) there has been a change in the degree of disablement due to service since the assessment was made.
(5) 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; or
(c) the decision or assessment upon which the award was based has been revised under paragraph (4).
(6) Subject to the provisions of paragraphs (4) and (5), on a review under this article, the Secretary of State may maintain or continue, vary or cancel the decision, assessment or award and any revised decision, assessment or award shall be such as may be appropriate having regard to the provisions of this Order”.
The AFCS Appeal
17. As mentioned above, the claimant had also mounted an appeal under the Armed Forces Compensation Scheme (“AFCS”) under reference AFCS/00643/2021, which was heard in Birmingham on 2 March 2022 (when the claimant was again represented by Mr Tucker; the Secretary of State was represented by Mr Ferguson). That appeal was resolved in his favour. The unanimous decision of that tribunal was to allow the claimant’s appeal. The Tribunal found that his bilateral noise induced sensorineural hearing loss was predominantly caused by his service after 6 April 2005.
18. In its statement of reasons of 4 March 2022 it stated that
“1. The appellant, who was born on 11 November 1963, served in Territorial Army and Reserves between 1984 and 2017. His service therefore spanned periods during which first the Service Pensions Order (SPO) and subsequently the Armed Forces Compensation Scheme (AFCS) were in force.
2. The appellant had hearing problems and, as he approached the termination of his service, an audiogram on 14 April 2017 revealed an average hearing loss at frequencies of 1, 2 and 3 kHz of 50dB and 70dB in each ear [101].
3. The tribunal was asked to determine whether this hearing loss, which was sensorineural in nature, was predominantly caused by his service after 06 April 2005, the period during which the AFCS was in force.
4. The tribunal, in determining this issue, had regard to the fact that the respondent had already accepted that the appellant had experienced hearing loss during his period of service covered by the SPO and that this was attributable to service. After an initial error, his disablement from this condition had been assessed at 0% in accordance with the rules for hearing loss assessment in Article 42 of the scheme.
5. The tribunal heard oral evidence from the appellant, who gave a detailed account of serving as a Range Conducting Officer, a role in which he would run military firing ranges for his own and other units. These ranges would often run for several continuous days at a time and he estimated that between 2,000 and 3,000 rounds would typically be fired each day.
6. As the officer responsible for both instruction and safety, although the appellant was issued with ear protection, he felt unable to perform his role without removing it. This was because of a need to remain aware of what was happening on the range and to be vigilant of possible dangers, and because of the need to answer questions and give instructions. He stated he needed to keep one ear open at all times to ensure the safety of others on the range. As a consequence, during his service he had prolonged exposure to loud high frequency noise.
7. The appellant further explained that, although there was reference in the Response to him shooting recreationally, this was incorrect. The appellant had been involved in competition shooting, but this had always been in a service environment.
8. The tribunal was careful to establish the dates of the appellant’s noise exposure. He explained that between 2005 and 2009 he had continued to organise and conduct ranges on a regular basis and that, even after problems with his hearing had been identified in 2009, this continued. He explained that the frequency of this activity only began to decrease in 2014 and that in his final training year 2015-16 he only did 8 to 10 days shooting. The tribunal also noted that the appellant was not exposed to excessive noise in his civilian occupation.
9. The appellant’s oral evidence was not challenged by Mr Ferguson and the tribunal found him to be an honest witness who gave a clear and cogent account of his experiences. The tribunal consequently found that during his AFCS service he was exposed to noise that was likely to lead to sensorineural hearing loss.
10. The appeal, however, was complicated by the fact that the appellant also served during the currency of the SPO. The tribunal therefore sought to determine the level of his hearing loss in or around 2005, when this scheme was replaced with the AFCS.
11. The closest audiogram to the end of SPO service was from 2003 and showed hearing loss averaged over 1, 2 and 3 kHz of 15dB in each ear [87].
12. By 2009, 4 years into the appellant’s AFCS service, a period during which the tribunal accepted there was significant noise exposure, an audiogram showed his hearing had deteriorated, with readings over the same frequencies averaging over 30 dB per ear [76].
13. By the time the noise exposure was eradicated, an audiogram dated 17 November 2016 indicated an average hearing loss at 1, 2 and 3 kHz of approximately 60 and 50dB [106] and, as stated above, an audiogram on 14 April 2017 showed 50 and 70dB.
14. In these circumstances, the tribunal was of no doubt that the majority of the appellant’s hearing loss had occurred during his AFCS service and that, having regard to his level of noise exposure, that this hearing loss was noise induced.
15. Having regard to the findings above, the tribunal concluded on a balance of probabilities that the appellant’s noise induced sensorineural hearing loss was predominantly caused by service during the period covered by the AFCS.
16. Consequently, the appeal was allowed.”
19. The Secretary of State did not appeal that decision. Instead on 7 April 2022 he implemented the decision by making a lump sum payment to the claimant. He was also to receive a monthly guaranteed income payment which would be paid monthly, but which needed to be calculated separately.
20. As the Secretary of State explained, following his successful appeal, the case had been referred to a medical adviser who recommended that the most appropriate award for his hearing loss was Level 7 on Table 7 Item 11 - blast injury to ears or acoustic trauma due to impulse noise with permanent bilateral sensorineural hearing loss of 50-75dB averaged over 1, 2 and 3 kHz.
21. Under the tariff that descriptor merited an award of £92,700.00, from which there was a civil compensation deduction of £11,103.30. The claimant’s award under the AFCS was therefore £81,596.70.
The Secretary Of State’s Original Submission
22. The Secretary of State submitted that the claimant had long Territorial Army (TA) service from June 1988 until November 2017. In terms of no-fault compensation the period 1988 until 5 April 2005 (i.e. the end date of the War Pensions Scheme (“WPS”)) was covered by the WPS and amounted to 17 years out of his total 29 years’ service. During the 1988-2005 period it was accepted that he was exposed to service noise with 5 years’ service in the Royal Artillery (RA) and 5 years in the Royal Armoured Corps (RAC), exposing him to noise from weapons and tanks. He was also a participant in military shooting including competitions on behalf of the Army. In addition, he enjoyed regular recreational sports e.g. shooting. He was not operationally deployed. From 2002 he was medically non-deployable on account of diabetes mellitus. It was also accepted that at the WPS service dates, especially during the earlier years, hearing protection was inadequate. The Secretary of State accepted service-related noise exposure. The service medical records documented declining hearing over the period, with the development of moderate/severe sensorineural hearing loss, accepted as bilateral noise induced sensorineural hearing loss (BNISNHL) and attributable to military service.
23. The assessment of noise induced sensorineural hearing loss for WPS in the 2006 Order followed the rules set out in Article 44. Those reflected expert understanding of the disorder. An expert Independent review of the scientific basis of the assessment of noise induced hearing loss was held in November 1997, chaired by the then Chief Medical Officer, Sir Kenneth Calman. That formed the basis of a War Pensions Policy statement dated 1999. A further review of Hearing Loss was carried out by the MOD-sponsored Non-Departmental Public Body, the Independent Medical Expert Group (IMEG), in the Second (2013) Report. Copies of those documents were attached to the submission.
24. The claimant’s service covered both SPO and AFCS service and as such was referred to as a “spanning” case. The 6 April 2005 date had no military significance other than being the date of introduction of the AFCS.
25. Claims to war pension could only be made at or beyond service termination and there were no time limits to claims. Claims under AFCS could be made while still serving. Where there was “spanning” service, an award under each scheme might be appropriate. However, such outcomes were complex due to the different nature of the schemes, standards of proof, form of awards, time limits and review provisions. As a result, departmental policy was that, where case facts allowed, there should be acceptance (where appropriate) of all service causally-related disablements under one or other of the schemes, but not both.
26. However, because of the nature of BNISNHL, and as discussed in the attached documents, assessment and award of the disorder did not follow that general rule. Noise induced sensorineural hearing loss accepted under SPO resulted from a series of discrete noise injuries to the cochlea. When exposure by the individual injury ceased, the damage caused by all previous discrete noise injuries did not increase further and so the SPO assessment, and hence award, were made according to the article 44 rules, made final at the SPO scheme closure date.
27. The expert documents attached also discussed the assessment of noise induced hearing loss due to service and, in particular, why, as in the UK civil courts, audiometric readings at 1, 2 and 3 kHz were used. At WPS service termination/scheme closure date, audiometric loss due to constitution and ageing was also included and awarded. In the instant case the nearest audiometry to 5 April 2005 was in 2009 when assessment was Nil according to article 44 rules. The claimant reported the associated symptom, tinnitus. Its assessment was also discussed in the War Pension Policy Statement. The legislation provided that an increase in assessment of hearing loss could only be made when the noise induced hearing loss itself was assessed at 20% or more. That was not met in the claimant’s case.
28. The claimant continued to service after 6 April 2005 until medical discharge on 23 November 2017. He remained in the TA, but owing to his medical fitness limitations from diabetes and later (in 2009), bilateral sensorineural hearing loss, he served the remaining 12 years in the Royal Logistics Corps (RLC). Hearing protection was much improved over that period, Health and Safety law/regulations changed and, with them employer responsibility/liability. While no longer exposed to heavy weapons noise and with, from 2009, clear limitation on noise exposure, including minimised exposure to noisy environments, double ear protection, minimised weapons firing and mandatory annual audiometry, the claimant was no longer exposed to heavy weapon noise and was not deployed, but did continue regular military competitive and recreational shooting.
29. The claimant had now claimed hearing loss due to or worsened by AFCS service. Both were rejected and were at the time of writing (on 16 March 2021) under AFCS appeal. In 2019 a civil claim which he made against the MOD in respect of Noise Induced Deafness was settled for a sum in excess of £75,000.
30. In conclusion, the evidence supported SPO service as the index cause of hearing loss and the Secretary of State maintained that the percentage assessment awarded remained appropriate for the reasons given above.
31. For thoroughness and to ensure a robust accurate lawful decision, full reconsideration of the AFCS rejection would be undertaken as part of the appeal process.
32. The Secretary of State submitted that the claimant had not shown an error on a point of law and that the appeal should be dismissed.
Mr Heppinstall QC’s Submission
33. It is apparent that some of the Secretary of State’s original submission (which had been produced in March 2021) had been overtaken by events, not least the claimant’s successful AFC appeal in March 2022. Although he did not abandon the original submission of his late predecessor, Mr Heppinstall QC took matters rather more succinctly.
34. War Pensions were only awarded “in respect of the disablement of a member of the armed forces which is due to service before 6th April 2005 and may be made provisionally or upon any other basis” (article 5(1) of the 2006 Order). Article 42(8) was to be construed as relating to termination of service before 6 April 2005, as could also be seen from article 42(1). Therefore the majority of the Tribunal below was entirely correct to refuse the appeal. The appeal should be dismissed.
35. In his own words, the claimant stated that his quality of hearing deteriorated in 2009 and that reduction in capacity became evident to him in 2014 [54]. Indeed, that was consistent with him being found H3H3 in 2009 [32]. A 50dB loss in each ear (the article 42 threshold) was not observed until 2013 [37]. His hearing loss therefore fell to be compensated under the AFCS and not the 2006 Order. This is what the Tribunal below decided on 2 March 2022, viz. that his hearing loss was predominantly caused by service after 6 April 2005. The Secretary of State had not appealed that determination and had informed the claimant that it had made a Level 7 award (£90,000) as well as a Guaranteed Income Payment (which was being calculated). The claimant would also receive an Armed Forces Independence Payment (£156.90 per week). A reduction had been applied to those awards under article 58 of the AFCS 2011 to reflect the common law damages payment for the same injury. Fresh rights of appeal arose in relation to all of those determinations.
36. As was made clear by the policy expressed at article 12(2) of the AFCS, if this appeal resulted in any payment of a war pension, it would need to be reduced back to nil under article 52 of the 2006 Order to take into account of both the AFCS and the common law compensation.
37. Therefore, even if this appeal had any merit, which it did not, prosecuting it would not advance the claimant’s position. The Secretary of State had therefore invited the claimant to withdraw his appeal by letter dated 21 April 2022, which was declined by him by email dated 22 April 2022, which stated:
“[The Appellant] does not wish to challenge the FTT’s recent decision either and fully accepts that he cannot receive compensation for the same injury under both the AFCS and War Pension schemes. He does not however wish to withdraw his appeal to the Upper Tribunal.
[The Appellant], who was medically discharged because of his service attributable hearing loss, was not required to make a claim for the condition to be considered under the compensation schemes and did not do so under any particular scheme. The confusion that followed was entirely due to the administrators of the schemes.
Due to the uncertainty about how his spanning service should be treated under the schemes, it has taken four years to get this far in establishing his entitlement to compensation. [He] has found this uncertainty and delay, coming on top of having to come to terms with his deafness and the loss of his career, to be extremely stressful and would not want any other service veteran to have to go through what he has been through.
The Upper Tribunal has a discretion to give permission to appeal if there is a realistic prospect that the FTT’s decision was erroneous in law or there is some other good reason to do so. [He] has instructed me to put it to the Upper Tribunal Judge that clarifying the law regarding overlapping service is a very good reason to continue with this appeal”.
38. The Secretary of State acknowledged the claimant’s sentiments and that the state of affairs obtaining had not come about by reason of anything which he had done or not done.
39. The Secretary of State nevertheless invited the Tribunal to dismiss the appeal.
The Claimant’s Submission
40. Mr Tucker’s original written submission dated back to May 2021 and had again been overtaken by events. He submitted that the claimant served in the Territorial Army from 20 January 1984 to 23 November 2017 when he was discharged on medical grounds and automatically considered for a War Pension. An award was made on 19 June 2018 in respect of bilateral noise induced sensorineural hearing loss with disablement assessed at 30%.
41. That decision was reviewed and revised by the Secretary of State on 12 December 2018. The revised decision notified to the claimant on 14 December 2018 was to withdraw his War Pension because “our doctors have confirmed that you are not suffering from any assessable degree of disablement”.
42. The claimant appealed against the revised decision on 29 April 2019 and his appeal was heard on 25 February 2020. The majority decision of the Tribunal was “to uphold the Secretary of State’s assessment upon review as notified on 14 December 2018 of Nil% (final) in respect of the following condition: bilateral noise induced sensorineural hearing loss (1984 - 2005)”.
43. The statement of reasons included a minority judgement by the service member which the claimant had adopted as grounds for his application for permission to appeal to the Upper Tribunal. The first ground concerned the carrying out of a review.
44. As noted by the service member in paragraph 28, the reasons given for carrying out the review were on page 7 of the appeal documents. At paragraph 4 the box had been ticked for “a change in the climate of medical opinion”, not a change in the interpretation of the law and the narrative on the reverse of page 7 indicated that it was a “clarification of policy”.
45. In the view of the service member, which the claimant adopted, neither met the criteria under a revision of the assessment to his detriment. That important protection for War Pensioners against the reduction of their assessments based upon a mere difference of opinion was considered by the Upper Tribunal in JM v Secretary of State for Defence (WP) [2014] UKUT 358 (AAC).
46. In paragraph 14 of his decision in JM, Upper Tribunal Judge Rowland stated
“The conditions in article 44(4) material to the present case are that the original assessment ‘was … made in consequence of ignorance of, or a mistake as to, a material fact, or a mistake as to the law’ or that ‘there has been a change in the degree of disablement due to service since the assessment was made’.”
“These conditions” the Upper Tribunal Judge confirms “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.” “It is therefore” he continues “incumbent on the First-tier Tribunal to make it clear when revising an assessment to the detriment of a claimant, whether a condition in article 44(4) is satisfied and, if so, why.”
47. In this case the decision before the Tribunal was a decision on a review by the Secretary of State. It was therefore incumbent on the Tribunal to determine at the outset whether the Secretary of State had valid grounds for revising the previous award to the detriment of the claimant. If the Secretary of State did not have valid grounds for doing so when conducting the review, the Tribunal was, it was submitted, obliged to set aside the review decision reinstating the previous award.
48. In the minority judgement adopted by the claimant as grounds for his appeal, the service member argued that there was a more substantive issue in the appeal which was likely to affect many more Servicemen, which was the date at which hearing loss was measured. The original award was based on the claimant’s level of disability from hearing loss at the date nearest to his actual release from service.
49. When the award was revised, only the hearing loss at the date nearest to April 2005, when the 2006 Order was replaced by the AFCS, was measured and the claimant’s War Pension withdrawn. That approach was upheld by the majority decision of the Tribunal with the result that, at the end of his service, the Appellant had no award for significant hearing loss caused by exposure to high levels of noise in service.
50. The service member noted that the claimant’s hearing loss would attract a significant award if it were all considered under the 2006 Order - as it was in the original award. If it were all considered under the AFCS, it would also be assessed at level 8 - a substantial award. He stated that he would allow the appeal because the way that only part of the claimant’s hearing loss was being considered was unjust and wrong.
51. That issue was addressed by the MoD’s Assistant Head, Armed Forces Compensation & Insurance in a letter to the claimant’s representative dated 5 December 2013. Under the heading ‘Definition of “service” under the Service Pensions Order (SPO)’ the writer acknowledged that in Schedule 6 “service” was given the meaning ‘service as a member of the armed forces before 6 April 2005 and the word “served” shall be construed accordingly’.
52. However, as the writer pointed out, the 2006 Order specifically provided in Article 1(2) that the definitions applied, ‘unless the context otherwise requires and except where otherwise provided in the Order’. In the Secretary of State’s view, given the clear direction given in article 1(2) of the 2006 Order that terms must be read in context, the Secretary of State did not consider that the interpretation of “service” used in one article should necessarily inform another. The writer hoped that that would provide some reassurance that the Department was adopting a sensible and fair approach to this complicated matter.
53. That flexible approach was endorsed by the Independent Medical Expert Group (IMEG) in their fourth report dated December 2017 concerning ‘spanning cases’. In ‘Example 4’ where the facts were similar to those of the claimant, all sensorial hearing loss was to be accepted under AFCS because “Apportionment of loss between the two schemes would result in no award under either scheme and would be manifestly unfair.”
54. The Tribunal in the present case could not have made such an award because no appeal against the refusal of an award under AFCS was before it. The claimant had since lodged an appeal and was awaiting the Secretary of State’s response to that. Should the Upper Tribunal find the majority decision was erroneous in law it might wish to consider remitting this appeal to a fresh Tribunal with a direction that it be reheard with the pending AFCS appeal.
Discussion
Spanning Cases
55. In cases where there is a claim for compensation arising out of service covering periods governed by both the 2006 Order and the AFCS, the claims should ordinarily be heard together as a matter of best practice. That is not to criticise the Tribunal which decided to proceed with the appeal on 25 February 2020. Given the state of affairs likely to result at that time from the impending pandemic, the Tribunal was clearly (and rightly) concerned not to leave matters in limbo and to reach a determination of the claim under the 2006 Order before it. Moreover, as the service member noted in his dissent, the claimant had not yet appealed the Secretary of State’s adverse AFCS decision. If he had, the Tribunal would have adjourned the case for both matters to be heard together. As a result of the disruption caused by the pandemic, the AFCS appeal was not in fact determined until 2 March 2022, almost 2 years later.
56. However, as a result of the two claims not being heard together, the claimant was faced with a situation for almost 2 years where his appeal under the 2006 Order had been dismissed and his unsuccessful claim under the AFCS had not been the subject of an appeal, with the result that he was left in the unfortunate position, through no fault of his own, of not being entitled to compensation for his undoubted hearing loss due to his military service under either scheme, at least until his AFCS appeal was resolved in his favour on 2 March 2022.
The Grounds For Review
57. The ground given for the review by the Secretary of State on 10 December 2018 was “a change in the climate of medical opinion” and on the reverse of the page “further clarification of policy”. Both of those statements are inaccurate, but what is clear is that there had been a mistake on the part of the Secretary of State, namely that the 2017 audiogram was good evidence of hearing loss due to service before 6 April 2005. Whether that mistake was one of fact or law matters not for present purposes. Nevertheless it is apparent that the original decision had been made in consequence or ignorance of, or a mistake as to a material fact or a mistake as to the law. Whether the review arose under article 44(2), (4) or (5), there was therefore a valid basis on which the Secretary of State could revise the original decision of 19 June 2018.
58. The view of the service member, that neither a change in the climate of medical opinion, nor a change in interpretation of the law met the criteria under article 44(4) for a revision of the assessment to the detriment of the claimant, does not take account of the power to revise in consequence or ignorance of, or a mistake as to a material fact or a mistake as to the law.
59. The problem was caused by virtue of the fact that the form WPS0375 does not accurately mirror the terms of articles 44(2), (4) and (5), but what governs the Secretary of State’s power of review is the terms of the article. Effect must be given to the terms of the article and the inaccurate terms of the form do not preclude a review on valid grounds if they exist, even though the compiler of the form ticks boxes which do not mirror the terms of the article.
60. I am therefore satisfied that, albeit not correctly stated in the form WPS0375 (which does not accurately mirror the terms of article 44(2), (4) and (5)), the Secretary of State did have the power to revise the original decision of 19 June 2018 and that the majority was correct so to hold.
61. Nevertheless I do take the opportunity to reiterate what Upper Tribunal Judge Rowland said in JM at [14] about the limitations of the power of revision to the detriment of a claimant:
“The conditions in article 44(4) material to the present case are that the original assessment “was … made in consequence of ignorance of, or a mistake as to, a material fact, or a mistake as to the law” or that “there has been a change in the degree of disablement due to service since the assessment was made”. 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)). It is therefore incumbent on the First-tier Tribunal to make it clear when revising an assessment to the detriment of a claimant, whether a condition in article 44(4) is satisfied and, if so, why. In the present case, the First-tier Tribunal made no mention of article 44(4). Sometimes the First-tier Tribunal’s reasons for making a lower assessment imply a clear finding that one of the conditions of article 44(4) is satisfied …”
62. It is also important that First-tier Tribunals bear in mind the guidance of Upper Tribunal Judge Lane in DP v Secretary of State for Defence (WP) [2017] UKUT 434 (AAC)
“5. … This is not to say that a failure to refer to the article explicitly is inevitably fatal. That would amount to the triumph of form over substance. It may be possible to infer from the decision that a condition was fulfilled, but it is dangerously easy to go astray.
…
12. Given the protective nature of the provision and its complexity, it is plainly wise for a First-tier Tribunal to refer expressly to Article 44(4) when it wishes to reduce an assessment. That way, it can keep the conditions clear in its Statement of Reasons and make sure that it has dealt with them fully.”
The Interpretation of Article 42
63. It is clear from article 5(1) that an award under the 2006 Order can only be made in respect of the disablement of a member of the armed forces which is due to service before 6 April 2005. It is also clear from article 5(2) that an award under the 2006 Order can only take effect after the termination of the member’s service. Thereafter a claim for compensation due to service arising on or after 6 April 2005 is governed by the AFCS. I can well understand the concerns of the service member as at 25 February 2020 when the claimant was faced with the potentially grotesque position of not being entitled to any compensation under either scheme, but I do not therefore accept his criticism in paragraphs 32 and 36 of the statement of reasons that the division of hearing loss into two separate periods is wrong. On the contrary, it is fully in accord with, and is required by, the legislation. The potential problem with having two statutory schemes and a period of spanning service should be obviated in most cases by ensuring that appeals under the different statutory codes are heard and decided together.
64. The article 42 threshold for an award is an average of 50dB or more in each ear at 1kHz, 2kHz and 3kHz.
65. The closest audiogram to the end of pre-6 April 2005 service was from 2003 and showed hearing loss averaged over 1, 2 and 3 kHz of 15dB in each ear. That was below the threshold.
66. The audiogram of 26 February 2009 showed that the hearing loss in the left ear was 20dB over 1kHz, 35dB over 2 kHz and 35dB over 3kHz and 30dB over 1kHz, 30dB over 2 kHz and 30dB over 3kHz in the right ear. That was below the threshold. That was 4 years into the claimant’s AFCS service. During that period the Tribunal accepted there was significant noise exposure and that his hearing had deteriorated, with readings over the same frequencies now averaging over 30 dB per ear.
67. The audiogram of 17 April 2009 showed that the hearing loss in the left ear was 30dB over 1kHz, 25dB over 2 kHz and 30dB over 3kHz and 20dB over 1kHz, 40dB over 2 kHz and 40dB over 3kHz in the right ear. That was below the threshold.
68. The audiogram of 26 March 2010 showed that the hearing loss in the left ear was 35dB over 1kHz, 30dB over 2 kHz and 35dB over 3kHz and 25dB over 1kHz, 40dB over 2 kHz and 50dB over 3kHz in the right ear. That was below the threshold.
69. The audiogram of 19 September 2011 showed that the hearing loss in the left ear was 40dB over 1kHz, 35dB over 2 kHz and 45dB over 3kHz and 25dB over 1kHz, 45dB over 2 kHz and 45dB over 3kHz in the right ear. That was below the threshold.
70. The audiogram of 21 September 2012 showed that the hearing loss in the left ear was 40dB over 1kHz, 45 dB over 2 kHz and 50dB over 3kHz and 35dB over 1kHz, 50dB over 2 kHz and 55dB over 3kHz in the right ear. That was below the threshold.
71. The first time at which the article 42 threshold was reached was in the audiogram of 16 April 2013 which showed that the hearing loss in the left ear was 45dB over 1kHz, 50dB over 2 kHz and 55dB over 3kHz and 40dB over 1kHz, 50dB over 2 kHz and 50dB over 3kHz in the right ear.
72. The audiogram of 4 April 2017 showed that the hearing loss in the left ear was 60dB over 1kHz, 60dB over 2 kHz and 65dB over 3kHz and 45dB over 1kHz, 55dB over 2 kHz and 60dB over 3kHz in the right ear.
73. As a matter of common sense one would have thought that an assessment of hearing loss as at 6 April 2005 would more accurately be reflected by an audiogram at 26 February 2009 than one at 17 April 2017.
74. Mr Tucker, however, said that the terms of article 42(8) and (9) require the later test results to be used because they were conducted at or about the termination of the claimant’s service which took place on 23 November 2017 and that that result is mandated by the terms of article 42(8) and (9) which provide (with emphasis added) that
“(8) Noise-induced sensorineural hearing loss shall be measured by reference to audiometric tests, where available, conducted at or about the termination of the member's service and the degree of disablement due to service shall be assessed in accordance with paragraph (10).
(9) Where no such tests were conducted or are available, the assessment of the degree of disablement due to service shall be informed by the earliest available evidence, whether in terms of audiometric tests or other evidence relevant to the level of hearing loss that existed at termination of service and the assessment shall have regard to the relative percentages of degrees of disablement and measured hearing loss specified in Table 1 of Part VI of Schedule 1 but any hearing loss arising after termination of service shall not be included in the assessment”.
75. So, said Mr Tucker, the use of an audiometric test conducted at or about the termination of the claimant’s service had to be used. It was only if there were no such test that it would be permissible to assess the degree of hearing loss by reference to the earliest available evidence
76. Termination of service meant 23 November 2017, not 6 April 2005. In that regard Mr Tucker relied on the terms of the interpretation provisions in Schedule 6 Part II of the 2006 Order which provide the following definitions:
“54. “service” service as a member of the
armed forces before 6th April
2005 and the word “served” shall
be construed accordingly
…
59. “termination” in relation to service as a
member of the armed forces—
(a) subject to the provisions of
paragraph (b) below, termination of
service as such a member by
reason of—
(i) retirement
(ii) discharge
(iii) demobilisation
(iv) transfer to the Emergency List
or Reserve;
or in any other manner;
(b) where the member renders
service during more than one
period, the date, having regard to
the foregoing provisions of this
item, of the end of the period which
is relevant in his case; (and the
word “terminated” shall be
construed accordingly)”.
These provisions did not say that termination occurs on 6 April 2005; termination in this context must mean termination of all service (as at 23 November 2017).
77. By contrast, Mr Heppinstall QC said that the matter was ultimately decided by the terms of article 40(1)(a) which provide that
“Except where paragraph (2) applies, where, not later than 7 years after the termination of the service of a member of the armed forces, a claim is made in respect of a disablement of that member, or the death occurs of that member and a claim is made (at any time) in respect of that death, such disablement or death, as the case may be, shall be accepted as due to service for the purposes of this Order provided it is certified that—
(a) the disablement is due to an injury which—
(i) is attributable to service, or
(ii) existed before or arose during service and has been and remains aggravated thereby”.
78. In the context that must mean service before 6 April 2005. If the disablement was not attributable to service before 6 April 2005, one never got as far as article 42. If the claimant could not show, as he could not, hearing loss above the threshold prior to 6 April 2005, that was an end of the matter. The Tribunal could not rely on article 42(8) to import compensation for an injury suffered after 6 April 2005. The simple fact was that attribution of the injury to the time prior to 6 April 2005 was not made out.
79. I am satisfied that Mr Heppinstall QC is correct, at least insofar as the construction of article 42 is concerned, and that the majority of the Tribunal was correct to hold as it did.
80. The fact that article 5(2) provides that an award under the 2006 Order can only take effect after the termination of the member’s service (as at 23 November 2017 rather than 6 April 2005) does not support the service member’s conclusion as set out in paragraph 32 of the statement of reasons. The fact that no award can take effect until termination of service does not mean that article 5(1) can be construed as applying to disablement due to service on or after 6 April 2005 nor that the claimant was entitled to an award under the 2006 Order for “all the hearing loss caused by the whole of his service in the armed forces”.
81. Accordingly, for the purposes of article 42(8) and 42(9) the words “termination of service” mean the end of service as a member of the armed forces before 6 April 2005 rather than having the general meaning ascribed to that phrase in paragraph 59 of Part II of Schedule 6 of the 2006 Order. That is not inconsistent with the definition in paragraph 59 since article 1(2) of the 2006 Order provides that
“In this Order, unless the context otherwise requires and except where otherwise provided in the Order, an expression for which there is an entry in the second column of Schedule 6 shall have the meaning given against it in the third column of that Schedule or, as the case may be, shall be construed in accordance with the instructions given against it in that column”.
82. Thus the articles in question should be construed as reading
“(8) Noise-induced sensorineural hearing loss shall be measured by reference to audiometric tests, where available, conducted at or about 6 April 2005 and the degree of disablement due to service before 6 April 2005 shall be assessed in accordance with paragraph (10).
(9) Where no such tests were conducted or are available, the assessment of the degree of disablement due to service before 6 April 2005 shall be informed by the earliest available evidence, whether in terms of audiometric tests or other evidence relevant to the level of hearing loss that existed at 6 April 2005 and the assessment shall have regard to the relative percentages of degrees of disablement and measured hearing loss specified in Table 1 of Part VI of Schedule 1 but any hearing loss arising after 6 April 2005 shall not be included in the assessment”.
83. That interpretation is also consistent with article 42(7) which, read in conjunction with the definition in paragraph 54 of Part II of Schedule 6, provides that
“An assessment of the degree of disablement due to service [as a member of the armed forces before 6 April 2005] in respect of noise-induced sensorineural hearing loss shall be based solely on hearing loss due to service [as a member of the armed forces before 6 April 2005] and shall not include any hearing loss due to age or other factors which are not related to service as a member of the armed forces [before 6 April 2005] and which arise after service [as a member of the armed forces before 6 April 2005]”.
84. It is also consistent with the provisions of article 42(10).
85. Moreover, what article 42(8) requires is that, whilst the hearing loss is to be measured by reference to the relevant tests, the degree or disablement due to service (before 6 April 2005) must be assessed in accordance with paragraph (10). What paragraph 42(1) requires is the assessment of the degree of disablement which is due to service before 6 April 2005.
86. Correctly interpreted therefore, the 2006 Order does not have the effect of mandating that an assessment of hearing loss as at 6 April 2005 must be decided by reference to an audiogram at 17 April 2017 rather than one at 26 February 2009.
87. The service member was therefore wrong to conclude that the claimant was entitled to an award under the 2006 Order for “all the hearing loss caused by the whole of his service in the armed forces” (paragraph 30) and that the hearing loss would attract a significant award if considered under the 2006 Order (paragraph 36). That would be contrary to article 5(1) of the 2006 Order. The majority was correct to hold that the provisions of the 2006 Order cannot be properly read as to enable or require hearing loss due to service before 6 April 2005 to be assessed by audiograms or other evidence at termination of service many years after that date where there is available evidence much closer to 6 April 2005.
88. To have held otherwise and to have allowed the appeal and remitted the matter for rehearing would have done the claimant no favours. If the appeal under the 2006 Order had been remitted for rehearing, and on the assumption that it had been successful, any award would have been subject to reduction under article 52 to take account of the AFCS compensation and the common law award of damages. The Tribunal would also have had to grapple with the potential problems of the different natures of the two statutory schemes, the different tests of liability and burden of proof and other matters. Those potential problems do not arise in the event that the majority was correct to have dismissed the appeal.
Conclusion
89. The claimant decided that he wished to maintain his appeal, notwithstanding that his AFCS appeal had been successful, because he did not wish other service veterans to have to go through what he had been through and he wished to clarify the law regarding overlapping or spanning service. I have now done so.
90. For the reasons set out above I am satisfied that the decision of the First-tier Tribunal sitting at Birmingham on 25 February 2020 under file reference ASS/00427/2019 does not involve an error of law.
91. The appeal against that decision is therefore dismissed.
Mark West
Judge of the Upper Tribunal
Signed on the original 18 July 2022
[1] For the reasons behind this provision, see War Pensions and Armed Forces Compensation: Law and Practice (Andrew Bano, 2nd ed., 2022) at 8.10.
[2] This is a typographical error. The word should be the comparative adjective “worse” as the next sub-paragraph makes clear.
TC v Secretary of State for Defence (WP): [2019] UKUT 409 (AAC)
TC v SSD (WP) [2019] UKUT 409 (AAC) Case No: CSAF/211/2019 1 THE UPPER TRIBUNAL ADMINISTRATIVE APPEALS CHAMBER Hearing at George House, Edinburgh on 20 November 2019 For the appellant: party No appearance for the Secretary of State for Defence DECISION OF THE JUDGE OF THE UPPER TRIBUNAL The appeal is allowed. The decision of the Pensions Appeal Tribunal for Scotland dated 22 February 2019 following a hearing on 6 February 2019 is set aside. The case is referred to the Pensions Appeal Tribunal for Scotland for rehearing before a differently constituted tribunal in accordance with the directions set out at the end of this decision. REASONS FOR DECISION Background 1. This is a case about the correct rate of payment to the appellant (the “claimant”) of an allowance for lowered standard of occupation (“ALSO”). ALSO is a type of award available to claimants who meet the necessary criteria for entitlement under Article 15 of the Naval, Military and Air Forces etc (Disablement and Death) Service Pensions Order 2006 (“SPO”). Veterans may be eligible for ALSO where the effects of certain service related disablements cause them to settle for a lower paid civilian job. It is paid to narrow the gap in earnings between the civilian job and what the veteran would have earned if still in the service occupation. The central question in this appeal is whether, on a review by the Secretary of State for Defence (“SSD”) of an award of ALSO, pay rates at the date of original award or the date of review should be used in any recalculation. The answer to this question is that it depends on the ground on which the review proceeds. In this case, because there was official error, under the terms of the SPO the SSD should have used pay rates in force at the time of the original award. 2. The factual background is that the claimant served in the Army between 1981 and 1993. His rank was Sapper. He worked as a combat engineer, crane driver and driver. He was injured while in service and suffers from back problems. Since leaving the Army, the claimant has worked as a mobile crane operator and LGV driver. 3. On 4 July 2007 the claimant was awarded ALSO at the maximum rate, of £52.68 per week. The award was based on a comparison of earnings of a combat TC v SSD (WP) [2019] UKUT 409 (AAC) 2 engineer in service in the Army, and the actual earnings of the claimant as a civilian LGV driver. 4. On 12 January 2018, on a review carried out under Article 44 of the SPO, the SSD decided to reduce payment of the claimant’s award. The SSD had discovered a mistake in the initial calculation of the award when carrying out the review. The SSD had used the earnings of a Level 9 salary in the Army when calculating the award in 2007. A lower rate should have been used for the service earnings, because the claimant as Sapper was entitled to a maximum salary at Level 7 and not Level 9. Using this lower rate of service pay reduced the differential between potential service earnings and actual civilian earnings, and therefore the level of the ALSO award. 5. The claimant appealed to the Pensions Appeal Tribunal (the “tribunal”). The tribunal disallowed the appeal after a hearing on 6 February 2019. The tribunal found that the SSD was entitled to review the decision and base the revised decision on actual pay rates in 2017/2018 for service and current employment. The claimant appealed to the Upper Tribunal, and permission to appeal was granted on 1 August 2019. An oral hearing was held on 20 November 2019. The claimant appeared in person. The SSD elected not to attend, instead relying on a written submission provided to the Upper Tribunal, and a further email response in relation to additional matters in respect of which the Upper Tribunal had requested further submissions. Grounds 6. I summarise the claimant’s grounds of appeal as follows: 6.1The tribunal wrongly found in Section 3 of its decision that the original award was made under Article 44 of the SPO, but it was made under Article 15 of the SPO. 6.2The tribunal erred by finding the SSD was entitled to use 2017/18 pay rates when re-calculating the award. The recalculation should have been based on the 2007 service pay rates applicable at the time of the original award. 6.3Given that 2007 pay rates should have been used, the tribunal also erred in failing to take into account a mistake by the SSD in the calculation of the claimant’s civilian pay rates in 2007. Because the actual civilian earnings were lower than the figure initially used by the SSD, even though the comparison service earnings had reduced from Level 9 to Level 7, there was still a sufficient differential for entitlement to the maximum award. 7. I summarise the SSD’s response to these grounds, contained in a written submission dated 5 September 2019, as follows: 7.1Although the original award was made under Article 15 of the SPO, the SSD was entitled to review it at any time on any ground under Article 44. The TC v SSD (WP) [2019] UKUT 409 (AAC) 3 SSD did so in pursuance of a policy to review every ten years. Read in context, the tribunal was referring to the review of the decision which was under Article 44. The rest of its decision shows that the tribunal clearly understood and applied the law. 7.2Reviews under Article 44 are carried out on remunerative values as current at the time of execution of the review, not the time of the original award. The SPO makes provision for calculating ALSO on current rates (the SSD does not specify which particular provisions of the SPO are relied on to support this submission). The service occupation used in the calculation is the trade and rank on the date of injury. 7.3Even if that was wrong, there was no error in calculation of the claimant’s civilian pay. Remuneration for the purposes of calculating ALSO is in respect of gross earnings including bonus, overtime and shift pay. 8. On 18 November 2019, after previewing the papers, I requested submissions on Article 2(5), Article 44(7) and Schedule 3 paragraph 1(7) of the SPO, which it seemed to me might have a bearing on the appeal. The claimant, who is not legally trained, made no submissions directly on these provisions at the hearing. The SSD provided a written response by email to my request. This did little more than quote the terms of those provisions, and reiterated the SSD’s reliance on the written submission of 5 September 2019. Governing law 9. The key legal issue in this case is whether reviews of ALSO awards under the SPO are carried out on the basis of rates of remuneration at the time of review, or on rates of remuneration at the time the initial award was made. The SPO does not address this issue directly, and so the answer must be found from a construction of its provisions. 10.Under the SPO, there are various provisions under which claimants may be entitled to awards in respect of disablement. One of those is Article 15, which makes provision for ALSO. It provides, insofar as relevant: “(1) ...where a member of the armed forces is – (a) in receipt of retired pay or a pension in respect of disablement the degree of which is less than 100 per cent; and (b) the disablement is such as to render him incapable, and likely to remain permanently incapable, of following his regular occupation and incapable of following any other occupation with equivalent gross income which is suitable in his case taking into account his education, training and experience he shall, subject to paragraph (3), be awarded an allowance for lowered standard of occupation at a rate not exceeding the appropriate rate specified in paragraph 8 of Part IV of Schedule 1…. (3) The aggregate rate of the member’s retired pay or pension together with the allowance under this article shall not exceed the rate of retired pay or pension which TC v SSD (WP) [2019] UKUT 409 (AAC) 4 would have been appropriate in his case if the degree of his disablement had been 100 per cent…. (6) In this article “regular occupation” means…. (b) …his trade or profession as a member of the armed forces on the date that he sustained the wound or injury, or was first removed from duty on account of the disease on which his award is based, or if there was not such occurrence, the date of termination of his service”. Paragraph 8 of Part IV of Schedule 1 (referred to in Article 44(1)) provides for a maximum amount payable as follows: “Allowance for lowered standard of occupation under Article 15: Groups 1-9 £3736 per annum Groups 10-15 £71.60 per week” Article 15 gives sparse detail about how the allowance is to be calculated, other than providing ceilings in Article 15(3) and Schedule 1 Part IV paragraph 8. From Article 15(1)(b), it can be gleaned that a comparison is made of gross income in the civilian and services occupations; and in R(AF) 4/07 it was held that meant actual income (so in that case a London weighting was taken into account). From Article 15(6), the trade to be used for the comparison is one the claimant was doing in the forces at the time the injury was sustained, or first removal from duty because of it, or if no such occurrence then the date of termination of service. 11.Article 44(2) of the SPO provides: “….(2) Subject to the provisions of paragraphs (4), (5), (8) and (9), any award under this Order may be reviewed by the Secretary of State at any time if 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; (b) there has been any relevant change of circumstances since the award was made; (c) the award was based on a decision or assessment to which paragraph (1) of this article applies, and that decision or assessment has been revised”. Article 44(5) provides: “(5) 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; or (c) the decision or assessment upon which the award was based has been revised under paragraph (4)”. The circumstances in which a decision can be revised to the detriment of the claimant are therefore restricted: a mere difference in opinion will not be a ground for revision (FS v SSD [2017] UKUT 194). In this case the SSD relies on the TC v SSD (WP) [2019] UKUT 409 (AAC) 5 ground of mistake as to material fact under Article 44(5)(a) (the use of a Level 9 rate of pay rather than a Level 7 rate of pay). 12.Various provisions of the SPO have a bearing on the question of whether rates of remuneration at the time of the original award or at the time of review should be used on a review. 12.1 First of all, there are three grounds of intervention under Articles 44(2) and 44(5), as set out above. There is mistake of fact, relied on in this case. But there is also a change of circumstances since the award was made, or a revision of assessment such as the level of disability. In cases relying on the second ground, and often the third ground, the basis of intervention is something which has happened after the original award, which has changed the picture. It would not make sense to go back to rates at the time when the initial award was made if the review is based on a later change of circumstances or change in level of disability. This suggests that the general position is that a recalculation will ordinarily be based on rates and circumstances at a time later than the original award, which may be the date of the review. 12.2 This interpretation is given support by provisions in Schedule 3 paragraph 1, given effect by Article 46. Schedule 3 is headed up “Commencing dates of Awards”. Paragraph 1 contains the following provisions: “(6) Subject to subparagraph (7) ….. where an award is adjusted upon review instigated by the SSD, the adjustment shall take effect from the date of the review. (7) Where an award is reviewed as a result of a decision (the “original decision”) which arose from an official error, the reviewed decision shall take effect from the date of the original decision and for this purpose “official error” means an error made by SSD or any officer of his carrying out functions in connection with war pensions, defence, or foreign and 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”. Paragraph 1(7) effectively “carves out” official error decisions from a general position that adjustments of awards take effect from the date of review. Where the original decision involved official error, there is an exception to the rule that adjustment takes effect from the date of the review. If the mistake of fact is based on official error, under the SPO the change is retrospective, and takes effect from the date of the original decision. 12.3 Article 44(7) of the SPO also suggests that the general position on review is that a revised award is not calculated on the basis of circumstances at the time of the original decision. It provides: TC v SSD (WP) [2019] UKUT 409 (AAC) 6 “…where a decision accepting a claim for pension is revised, the SSD may, if in any case he sees fit, continue any award based on that decision at a rate not exceeding that which may from time to time be appropriate to the assessment of the degree of disablement existing immediately before the date of the revision”. Article 44(7) is interpreted in Andrew Bano’s War Pensions and Armed Forces Compensation Law and Practice as giving the SSD “a discretion to continue any award based on the decision at the rate in payment immediately prior to the date of the revision even if a decision accepting a claim for pension is revised to a claimant’s detriment” (page 43). The need for such a discretion, allowing the SSD effectively to go back in time, is predicated on reviewed awards being based on new considerations, not those pertaining at the time of the original decision. Article 44(7) is referred to in Article 2(5) of the SPO which provides: “Subject to Article 44(7), any condition or requirement laid down in this Order for an award, or the continuance of an award, or relating to the rate or amount of an award, shall, except where the context otherwise requires, be construed as a continuing condition or requirement, and accordingly the award, rate or amount shall cease to have effect if and when the condition or requirement ceases to be fulfilled”. This has the effect that rates or amounts are construed as continuing conditions or requirements. Once again this suggests that rates are not approached as if fixed for all time when the original award is made, and so if they have changed new rates would be applied on review. 13.Finally, it is relevant to notice that, although there was no argument on this specific matter, R(AF) 4/07 concerned a review of an award of ALSO initially made in 1991 carried out in 2005. The reason for the review was a change of circumstances, in that the claimant was now earning more in his civilian occupation than he would have been in his service regular occupation. The case directs a like for like comparison of the claimant’s earnings capacity from his service regular occupation and from his occupation with his civilian occupation as at September 2005, which was the time of the review and not the original award. Ground 1 – Did the tribunal materially err in law because it stated in Section 3 of its decision that the original award was made under Article 44 of the SPO? 14.In the tribunal’s statement of reasons, paragraph 3, headed up “Background Facts”, the tribunal stated that the claimant was awarded ALSO at the maximum rate on 4 July 2007 “under Article 44 of the SPO”. 15.This was a technical error by the tribunal, because it was the review in 2017/18 which was carried out under Article 44, but awards of ALSO are made under TC v SSD (WP) [2019] UKUT 409 (AAC) 7 Article 15 of the SPO. However, I do not find this to be a material error in law, and would not have set aside the tribunal’s decision on this ground alone. This technical error made no difference to the outcome, because the tribunal was clearly aware of Article 15 and applied its terms in making its decision. The discussion in paragraph 7 shows this. The tribunal correctly refers to the basis on which ALSO is calculated under Article 15, and the statutory definition of regular occupation found in Article 15(6). Ground 2 – was the SSD entitled to use rates in force at the time of the review rather than the time of the original decision when re-calculating the award? 16.There is no dispute in this case that the SSD made a mistake as to a material fact when initially calculating the claimant’s ALSO award in 2007. The claimant, given his rank as Sapper at the time of his injury and when his service was terminated (Article 15(6)), should have been assessed on Level 7 salary. By error of officials acting on behalf of the SSD, he was assessed on the basis of a Level 9 salary. In my opinion this resulted in the award being made in consequence of a mistake as to a material fact, entitling the SSD both to review the award of ALSO under Article 44(2)(a), and to revise the award to the claimant’s detriment under Article 44(4)(a). 17.However, in my opinion the SSD’s mistake of fact in 2007 also amounted to an official error. It was an error carried out by the SSD’s officials when carrying out functions in connection with war pensions. It is not suggested that any other person materially contributed to this error. This is therefore a case which falls within paragraph 1(7) of Schedule 3 of the SPO, set out above. This provision creates an exception to the general position about the dates to be used for applicable pay rates on reviews. Paragraph 1(7) provides that the reviewed decision “shall take effect from the date of the original decision”. The intention of paragraph 1(7) is to provide an opportunity to correct the original error. The implication of the provision is that a recalculation will be carried out having corrected that information, rather than using erroneous information. In my view, because the change is to take effect from the date of the original decision, the recalculation on review should be made using the correct rates at the time of the original decision. It should not be carried out using current rates in 2017. 18.The tribunal’s attention does not appear to have been drawn to paragraph 1(7) of Schedule 3 of the SPO, and it failed to apply it to the claimant’s case. The outcome of the case is likely to have been different, had the tribunal applied this provision. I therefore find that the tribunal materially erred in law. I do not need to deal with additional interesting arguments of the claimant about there being unjustified discrimination between people still in service and veterans, if pay rates were not protected as a result of using revised 2017/18 pay rates. In this particular case, where the SSD relies on a mistake of fact as to pay rates, in the TC v SSD (WP) [2019] UKUT 409 (AAC) 8 recalculation the SSD should have used 2007 pay rates because of paragraph 1(7) of Schedule 3. Ground 3 – Did the tribunal err by failing to deal with an alleged error in the rates used in 2007 for the claimant’s civilian pay? 19.At paragraph 4 of its decision, the tribunal notes that on the day of the appeal, further salary documentation from March, April and May 2007 was produced by the claimant. That information was not added to the tribunal papers which came to the Upper Tribunal, but the claimant provided a further copy. On the basis of this information, the claimant submitted to both the tribunal and the Upper Tribunal that the rates for his civilian pay in 2007 used by the SSD were incorrect. He submitted to the Upper Tribunal that, because his actual rates of civilian pay were lower than the SSD had calculated in 2007, there was still a differential between them and service pay at Level 7 of about £60 a week. This meant he should still have qualified for the maximum rate of ALSO. 20.The tribunal did not deal directly with this argument in its decision, merely noting at paragraph 5 that in 2007 the SSD had used a current earnings figure of £422.11 per week. The tribunal did not consider whether that figure was wrong in the light of the information provided by the claimant. This is perhaps unsurprising. The tribunal had found elsewhere that current rates at the time of the review could be used by the SSD in recalculating the award. If that had been correct, the argument by the claimant about his 2007 civilian earnings would have been irrelevant. 21.However, given that I have found the effect of paragraph 1(7) of Schedule 3 is that the SSD should have corrected its error by using the pay rates for Level 7 in 2007, the tribunal erred in law by not dealing with the claimant’s argument about civilian pay. Under Article 44, the SSD was entitled to review and recalculate the award using the correct pay rates for the regular service occupation in 2007. But it is intrinsic to awards of ALSO under Article 15 that there is a comparison between the rates for the regular service occupation and the civilian occupation. It has been found in the context of ALSO that, as a matter of fairness and equity, there is a requirement to compare like with like; R v Deputy Industrial Injuries Commissioner, ex parte Humphreys [1966] 2 QB 1, followed in R(AF) 4/07 in the context of ALSO at paragraph 27. As a matter of fairness and equity, in my opinion, if revisiting the award the SSD should also have taken into account whether there were mistakes in fact in the correct rates for the civilian occupation in 2007. It follows that it was an error of law for the tribunal to fail to consider the claimant’s argument and decide whether there had been an error in the SSD’s calculation of civilian pay in 2007. Disposal TC v SSD (WP) [2019] UKUT 409 (AAC) 9 22.This appeal before the Upper Tribunal is brought under Section 6A of the Pensions Appeal Tribunals Act 1943. By virtue of Section 6A(4A), the powers of the Upper Tribunal in this appeal are as set out in Section 12 of the Tribunals, Courts and Enforcement Act 2007. Because of the errors in law I allow the appeal and set aside the tribunal’s decision. Thereafter I have decided to remit the case for reconsideration by a differently constituted tribunal. I make the directions at the end of this decision in connection with the rehearing of this case. 23.The claimant asked me, if allowing the appeal, to remake the decision and find him entitled to ALSO at the maximum rate. I have sympathy for the claimant, who has been challenging the decision of the SSD and the tribunal for some time, and would like closure. However, the jurisdiction of the Upper Tribunal is by statute limited to errors in point of law. Remaking the decision would involve a degree of fact finding on my part which is inappropriate, particularly without the benefit of submissions from the SSD on the correct figure to take for the 2007 civilian earnings. The actual gross civilian pay received by the claimant in 2007 prior to the award is in essence a question of fact. It is not for me to choose whether to take the figures from the claimant’s payslips produced to the tribunal and Upper Tribunal relating to April and May 2007, or the payslips previously used by the SSD at pages 24 to 26 of the bundle relating to June and July 2007. Indeed, there may now with the passage of time be more accurate ways to determine the claimant’s gross income at the time of the original decision in 2007, for example if he has P60s or if there are HMRC records relating to the relevant periods. I have therefore decided to remit the case rather than remake the decision. Directions 1. Within one month of the date of issue of this decision, the claimant is to produce to the Pensions Appeal Tribunal for Scotland all pay information he retains relating to the period of six months prior to 4 July 2007, together with any P60s he retains relating to that period. That information should be copied to the SSD by the tribunal. 2. Within one month of receipt of any information provided under the previous direction, the SSD is to lodge with the Pensions Appeal Tribunal for Scotland a recalculation of the claimant’s entitlement to ALSO. That recalculation should be based on the correct figures applicable at the time of the initial decision of 4 July 2007. The SSD should apply the law as set out in paragraphs 10, 12.2, 17 and 21 above when carrying out the recalculation. 3. If the claimant is not content with that recalculation, the case should be reconsidered at an oral hearing. The members of the tribunal who are chosen to reconsider the case are not to be the same as those who made the decision which has been set aside. The new tribunal will not be bound in any TC v SSD (WP) [2019] UKUT 409 (AAC) 10 way by the decision of the previous tribunal. It will not be limited to the evidence and submissions before the previous tribunal. It will consider all aspects of the case entirely afresh and it may reach the same or a different conclusion to the previous tribunal. These Directions may be supplemented by later directions by a judge in the Pensions Appeal Tribunal for Scotland. A I Poole QC (Signed on original) Judge of the Upper Tribunal Date: 3 December 2019
KF v Secretary of State for Defence (AFCS): [2019] UKUT 154 (AAC)
KF v SSD [2019] UKUT 154 (AAC) Case No: CSAF/135/2018 1 THE UPPER TRIBUNAL ADMINISTRATIVE APPEALS CHAMBER DECISION OF THE UPPER TRIBUNAL JUDGE The appeal is allowed. The decision of the tribunal given at Edinburgh on 5 August 2015 is set aside. The case is referred to the Pensions Appeal Tribunal (Scotland) for rehearing before a differently constituted tribunal in accordance with the directions set out below. REASONS FOR DECISION 1. The claimant, who is the widow of a deceased former serviceman, appealed against a decision of a pensions appeal tribunal disallowing an entitlement appeal on an appeal decision of the Secretary of State dated 10 August 2013. The tribunal were not satisfied that the claimant’s deceased husband’s condition of Follicular Lymphoma was attributable to service. The decision of the tribunal is set out at pages 456 to 462. 2. The claimant is represented by Dr Busby, who had also provided evidence in the appeal which the tribunal refused to admit. The tribunal refused to admit Dr Busby’s evidence on two grounds. These grounds were as follows: “In Forbes’ case the alleged exposure occurred during the 1980s, and he first presented with symptoms of lymphoma in 2009. The (claimant) commented that although he had been treated for other medical conditions in the period during which she had known him (1996 onwards) he had no recognised lymphoma symptoms prior to 2009. This would suggest that if his lymphoma could be related to previous radiation exposure, it would have to have been during service more than 20 years before it presented. Lymphoma is not known to be present but asymptomatic over such a long period. The Appellant was unable to provide evidence to the contrary, although reference was made to material which we were unable to consider as a result of the Upper Tribunal Decision of Abdale and others [2014] UKUT 0477 (from page 244 onwards within Statement of Case) and a Directive from the President of PATS (at page 238 of Statement of Case). Accordingly whilst this material was available to both the Appellant and the Veterans UK the Tribunal was not able to consider same in our deliberations.” 3. The claimant sought permission to appeal against this decision and on 13 December 2018 I granted permission to appeal on a restricted basis. In doing so I said: “However permission is restricted to the issue set out in the tribunal’s statement in the second paragraph at page 459 in which the tribunal determined that they were unable to consider the material referred to in that paragraph by reason of the case of dale & Others cited therein.” 4. Attached to my determination was the following direction: KF v SSD [2019] UKUT 154 (AAC) 2 CSAF/135/2018 “The Respondent will have one month in which to make a short submission, with reference to authority, the tribunal rules and the Scots Law of evidence as to whether it erred in law in refusing to hear the evidence of Dr Busby. The respondent is also directed to make a submission in the light of paragraph 238 of the decision in Abdale as to (1) whether Abdale was binding on the tribunal given that it appears to be obiter, (2) whether the comments in Abdale from paragraph 237 related to admissibility of evidence from him or the assessment of it, (3) if it was related to admissibility what was the legal basis for excluding his evidence, (4) whether the authority at page 525 has any bearing on this case standing the basis upon which it was decided in paragraph 7 of the judgement, (5) whether the exclusion of the evidence breached the principles of fairness, (6) whether if the tribunal erred in law that breach was material and (7) how I should dispose of the case. The appellant will then have one month to reply.” 5. The Secretary of State responded with a submission at pages 698 to 705. The claimant’s representative responded with a submission at pages 936 to 949. Neither party sought an oral hearing of the appeal. 6. The direction of the President of the Pensions Appeal Tribunal Scotland referred to in the Reasons of the tribunal is set out at pages 238 and is in the following terms: “I refer to the application dated 14 November 2014 by the Secretary of State for a direction regarding the opinion evidence of Dr Busby and the appellant’s response dated 5 December 2014. In light of the decision of the Chamber President, Mr Justice Charles in Abdale & Ors. v. Secretary of State for Defence [2014] UKUT 0477 (AAC) and, in particular, his comments at paragraphs 237 to 249, I direct that Dr Busby’s opinion evidence is not admissible as expert evidence in this appeal. Accordingly, his documentary evidence should now be removed from the statement of case.” 7. The Secretary of State in responding to my direction sought to set out the effect of the decision in Abdale by Charles J. The Secretary of State submitted that the directions given by Charles J in paragraphs 237 to 249 of his decision were neither obiter nor binding. The Secretary of State went on to say: “5. Having decided in paragraph 236 that the appeals in Abdale should be allowed, Charles J next had to decide under section 12(2)(b) of the Tribunals, Courts and Enforcement Act 2007 whether to remit the cases to the FTT with directions for reconsideration or re-make the FTT’s decision. He decided to remit with the direction 1(x) recorded in paragraph of Ouseley J’s decision in Dr Busby’s application for judicial review (p.525): “Dr Busby may not give expert evidence (whether in writing, orally or otherwise) at the remitted hearing”. The appellants had opposed that direction. As Charles J stated in paragraph 237 of Abdale, “I must deal with this issue [of Dr Busby’s suitability to give expert evidence in cases of this type] because it is relevant to the directions I will give concerning the re-hearing of these appeals”. The relevant parts of Abdale are not obiter because they were necessary for Charles J’s decision about what directions to give. 6. The PATS is bound by a decision of the UT on a question of legal principle: Dorset Healthcare NHS Foundation Trust v MH [2009] PTSR 1112 at KF v SSD [2019] UKUT 154 (AAC) 3 CSAF/135/2018 paragraph 37. A single judge of the UT will normally follow a decision of another judge of the UT on a question of legal principle in the interests of comity and to avoid confusion: ibid. The relevant parts of Abdale are not a decision on a question of legal principle. (The relevance of Abdale to these appeals is described in paragraphs 13 – 14 below.) He then went on to submit: “7. The comments in paragraphs 237 – 249 in Abdale related to the assessment of Dr Busby’s evidence rather than its admissibility. The Secretary of State admitted in paragraph 8 of the submission that Charles J was not asked to decide whether Dr Busby’s evidence was inadmissible. The submission made to him was that the First-tier Tribunal should give it no weight. I also accept that submission and note that as is set out in paragraph 5 of the Secretary of State’s submission the instruction given about Dr Busby’s evidence quoted therein was a specific direction to the tribunal which was to rehear the case that Charles J was deciding. 8. The Secretary of State then sought to deal with the relevance of Abdale to Pensions Appeal Tribunals in different cases. In his submission he said: “13. Abdale was relevant to the appellant’s appeal to the PATS in two ways. First, it is evidence of what Charles J decided about Dr Busby’s suitability to give expert evidence, to which the PATS is entitled to give weight: Sinclair Gardens Investments (Kensington) Ltd v Ray [2015] EWCA Civ 1246 at paragraphs 1 and 26. 14. Secondly, Charles J’s judgment was intended as guidance to tribunals presented with evidence from Dr Busby about the existence and effect of ionising radiation. That is clear from: (a) his rejection of the submission that the “impact on future cases” should stop him from dealing with Dr Busby’s suitability because “it would be wrong not to do so given the time, cost and effort expended in this case which would have to be repeated if it was left to other courts or tribunals” (paragraphs 237); and (b) his statements that Dr Busby was not a suitable expert witness “in cases of this type” (paragraphs 239 and 240). Having heard him give extensive oral evidence, it was lawful and desirable for Charles J to give guidance about Dr Busby’s suitability as an expert witness: MN v Secretary of State for the Home Department 2014 SC (UKSC) 183 at paragraphs 26 – 27, 34 and 37. The guidance is persuasive; not binding MN at paragraphs 28, 30, 46 and 50 and 60.” It is to be noted that the Secretary of State’s position, which I accept, is that the guidance given by Charles J is persuasive and not binding. 9. In paragraph 15 of his submission the Secretary of State conceded that the tribunal erred in law but that the error was not material. 10. The Secretary of State submitted: 15. The PATS gave two reasons why it was “unable to consider” Dr Busby’s report (p. 459). The first was the decision in Abdale. It erred in law in thinking that Abdale prevented it from reaching its own view about whether the report should be considered. That error does not matter if the second reason can KF v SSD [2019] UKUT 154 (AAC) 4 CSAF/135/2018 stand. It was that the President of the PATS (“the President”) had given a case management direction that Dr Busby’s report “is not admissible as expert evidence in this appeal”. It was procedurally fair for the PATS to refuse to consider Dr Busby’s report on that ground.”. 11. I accept the Secretary of State’s submission in relation to the error in law identified by him in respect of the tribunal’s view that Abdale prevented it from reaching its own view about whether the report of Dr Busby should be considered. 12. The second part of his submission involves the tribunal’s reasoning in respect of the direction given by the President of the Pensions Appeal Tribunal Scotland. It is to be noted from paragraph 16 of the Secretary of State’s submission that in making the direction the tribunal acted within the rules and that the direction made by the President was not challenged by the means available to the claimant. However it is accepted in paragraph 18 of the Secretary of State’s submission that if the President’s direction was unlawful the Secretary of State is content for me to determine that the decision appealed against to me was unlawful also. However it is the Secretary of State’s clear submission that the tribunal did not err in law in giving that direction. The Secretary of State sets out the reasons for this at paragraphs 19 and 20 of his submission. It is said there: “19. Paragraph 5(1)(b) of schedule 1 to the 1943 Act provides for rules to be made about the admissibility of evidence in the PATS. Rule 12(5) of the 1981 Rules provides that the PATS shall not refuse evidence tendered to them on the ground only that such evidence would be inadmissible in a court of law”. Thus the PATS may refuse evidence tendered on other grounds: see too rule 15(1) in relation to evidence of difficult medical and technical questions. It should decide whether to admit or refuse evidence in accordance with the presumption that all relevant evidence should be admitted unless there is a compelling reason to the contrary: Atlantic Electronics Ltd v The Commissioners for Her Majesty’s Revenue and Customs [2013] EWCA Civ 651 at paragraphs 30 – 31. Compelling reasons why evidence should be refused include: (a) the evidence is weak: LN v Surrey NHS Primary Care Trust [2011] UKUT 76 (AAC) at paragraphs 22 – 24; and (b) the burden that dealing with the evidence would put on the opposing party: O’Brien v Chief Constable of South Wales Police [2005] 2 AC 534 at paragraph 6. 20. For the reasons given in paragraphs 16 – 17 above, the President followed a fair procedure when she gave her direction. The SSD’s application for the direction was based on Charles J’s finding in Abdale that Dr Busby is not a suitable witness to give expert evidence in this type of case because he is not impartial (p.236). The material before the President when she considered the application included: (a) A copy of Abdale, which shows: (i) The serious criticism that Charles J made of Dr Busby’s objectivity after having had the benefit of hearing him give evidence. The President was entitled to give weight to Charles J’s decision and be persuaded by his guidance. (ii) The burden that dealing with Dr Busby’s evidence put on the SSD. The issue of Dr Busby’s suitability to give expert evidence took oral evidence spread over three days (paragraph KF v SSD [2019] UKUT 154 (AAC) 5 CSAF/135/2018 238) and two cross-examination bundles that included evidence from other (expert) witnesses (paragraphs 231, 243, 247 and 249). Dr Busby’s evidence conflicts with the established scientific view (paragraphs 231 and 239(iv)). Therefore if the PATS were to consider his evidence, the SSD would have to lead expert evidence to answer it (p.233). (b) The appellant’s submission about the SSD’s application, which does not address the problem of Dr Busby’s lack of impartiality (p.239). (c) Dr Busby’s report for the appellant, which includes more advocacy.” 2 13. In paragraph 19 of his submission the Secretary of State makes reference to the Pensions Appeal Tribunal (Scotland) Rules 1981. The rules insofar as pertinent to this appeal are contained in rules 12(1), (5) and (6). These rules are in the following terms: 12 - (1) The appellant may give evidence in support of his appeal and the appellant and the Secretary of State may, subject to the provision of the next following paragraph, call a doctor or any other witness, and may produce at the hearing any further documentary evidence not already in the possession of the tribunal. …… (5) The tribunal shall not refuse evidence tendered to them on the ground only that such evidence would be inadmissible in a court of law. (6) Subject to rule 22 and to any direction given by the President under rule 6 or by the Chairman under rule 15, every document tendered in evidence or considered by the tribunal for the purposes of the appeal shall be made available to the appellant or his representative (if any) and to the Secretary of State or his representative in such manner as the tribunal may direct. 14. Thus on the face of the rule the claimant was both entitled to submit the evidence of Dr Busby and have it considered. There is nothing in rule 15 which is headed “power of tribunal to take expert evidence” which deals with the exclusion of evidence tendered by the claimant. It is simply a power given to the tribunal to obtain expert evidence at its own volition. Thus the Secretary of State is dependent upon finding support from authority for the proposition that the evidence of Dr Busby should be not admitted for some compelling reason notwithstanding that all relevant evidence should be admitted unless there is a compelling reason to the contrary. The reason given by the President in this case was that in light of the decision in Abdale and in particular the comments of Charles J at paragraphs 237 to 249 Dr Busby’s opinion evidence is not admissible as expert evidence in this appeal. The Secretary of State has given examples of cases in which such compelling evidence is said to exist. The question for me if the authorities support the proposition is whether there was such a compelling reason in this case, which on the face of it runs contrary to the rules. 15. I am not persuaded that in this case they do. There is no doubt that Charles J’s criticism of Dr Busby’s evidence given in Abdale is both trenchant and severe. It goes beyond whether Dr Busby’s evidence should be admitted or excluded. It extends to the issue as to whether Dr Busby should be excluded as a witness. He set out a persuasive narrative as to why this is so. However, I do not consider that the President was entitled simply to make a decision on the admissibility of Dr Busby’s evidence in the form a direction, based solely on the directions given by Charles J upon his own assessment of Dr Busby’s suitability as an expert witness and his evidence itself in another case. She required to apply KF v SSD [2019] UKUT 154 (AAC) 6 CSAF/135/2018 her own consideration of the admissibility of evidence by Dr Busby tendered in the case which was before her, given the general rule in relation to the admission of evidence. Accordingly her direction erred in law. In the circumstances as the tribunal followed the direction of the President I hold its decision errs in law and must be set aside. 16. The case will be remitted to a freshly constituted tribunal for a rehearing. Whilst the Upper Tribunal and the Pensions Appeal Tribunal have no power to direct the claimant as to which representative she chooses to act for her in her appeal I consider that I am entitled to express my reservations about Dr Busby both representing the claimant and providing evidence which is crucial to the case which she wishes to make. There is a substantial difference between giving evidence and making submissions and if the same person is acting both as representative and witness there is a concern that evidence and submission could be confused. Quite clearly the evidence of Dr Busby will require to be assessed along with the other evidence in the case. I can see no reason why in making that assessment the tribunal cannot have regard to the guidance as to the quality and nature of Dr Busby’s evidence as set out in Abdale. If that were to be the subject of submission before the new tribunal it is a further indication as to the desirability of the claimant separating her representation from the evidence she may wish to lead. (Signed) D J MAY QC Judge of the Upper Tribunal Date: 11 April 2019
Secretary of State for Defence v TG (AFCS): [2019] UKUT 24 (AAC)
Secretary of State for Defence v TG (AFCS) [2019] UKUT 24 (AAC) CAF/22/2017 1 IN THE UPPER TRIBUNAL Case No. CAF/22/2017 ADMINISTRATIVE APPEALS CHAMBER Before Upper Tribunal Judge Rowland The Appellant was represented by Ms Galina Ward of counsel, instructed by the Government Legal Department. The Respondent was represented by Mr Glyn Tucker of the Royal British Legion. Decision: The Secretary of State’s appeal is allowed. The decision of the First-tier Tribunal dated 25 August 2016 is set aside and there is substituted a decision that the injury suffered by the claimant on 2 December 2009 was not caused by service. REASONS FOR DECISION 1. This is an appeal, brought by the Secretary of State with permission given by the First-tier Tribunal, against a decision of the First-tier Tribunal dated 25 August 2016 whereby it allowed the claimant’s appeal against a decision of the Secretary of State dated 23 January 2013, refusing the claimant’s claim under the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011 (SI 2011/517) on the ground that the claimant’s injury was not caused by service. The First-tier Tribunal decided that the injury was caused by service. 2. Articles 8, 11 and 12 of the 2011 Order provided at the material time – “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.” “Injury and death – exclusions relating to travel, sport and slipping and tripping 11.—(1) Except where paragraph (2) or (9) apply, 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 travel from home to place of work or during travel back again. (2) This paragraph applies where the travel referred to in paragraph (1) is— (a) from the member's home or place of work to the place where an activity referred to in paragraph (6) is happening or during travel back again; or (b) from home or place of work where a member is changing a place of work in the United Kingdom to a place of work outside the United Kingdom or during travel back again. (3) Except where paragraph (4) and (9) apply, 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. Secretary of State for Defence v TG (AFCS) [2019] UKUT 24 (AAC) CAF/22/2017 2 (5) Except where paragraph (6) or (9) apply, 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 participation in sporting activity as— (a) a player; (b) a referee; (c) an organiser or a representative of a particular sport or sporting organisation. (6) This paragraph applies where— (a) the Defence Council have approved the sport or sporting activity as being a sport which enhances the fitness, initiative and endurance of members of the forces, and prior to the event, the relevant Service has recognised the particular sporting event and the organisation and training for it; or (b) the sporting activity is approved by the Defence Council which is undertaken for the purpose of meeting and maintaining the physical standards required of members of the forces. (7) For the purposes of paragraph (6)(a), the Defence Council may approve a single sport or sporting activity or a class of such activities and may approve such activities unconditionally or subject to any specified condition. (8) Except where paragraph (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 reason of— (a) attendance at a social event unless attendance was required by an order; or (b) free time or a social event associated with the activities specified in paragraph (5). (9) This paragraph applies where the injury, the worsening of the injury or death was caused (wholly or partly) by reason of— (a) acts of terrorism or other warlike activities in each case directed towards the person as a member of the forces as such; or (b) the member being called out to and travelling to an emergency. (10) In this article— (a) “home” means accommodation, including service accommodation, in which a member has lived or is expected to live for 3 or more months, and a member may have more than one home; (b) “place of work” means the place of work to which a member is assigned or temporarily attached; (c) “sporting activity” includes an adventurous course or an adventurous expedition approved by the Defence Council. Injury and death – other exclusions 12.—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— (a) the use or effect of tobacco; (b) the consumption of alcohol; (c) the non-therapeutic use of drugs; (d) consensual sexual activity; (e) except where article 9 applies, events, experiences, exposures and activities occurring before the member or former member entered service; (f) an illness which is— (i) caused by a single gene defect or is predominantly hereditary in origin; (ii) a personality disorder; (iii) an endogenous infection; or (iv) an exogenous infection except where the infection is acquired in a non-temperate region and the person infected has been exposed to the infection in the course of service or where, in a temperate region, Secretary of State for Defence v TG (AFCS) [2019] UKUT 24 (AAC) CAF/22/2017 3 there has been an outbreak of the infection in service accommodation or a workplace; or (g) a self-inflicted injury whether or not causing death except where the selfinflicting of injury is a result of a mental illness caused by service.” (Since the time material to this case, drafting errors in article 11(3) and (9)(b) have been corrected and, in article 12 (which has now become article 12(1), “predominantly” has replaced “partly” – although it may be noted that a similar amendment has not been made in article 11(1), (3), (5) and (8) – and paragraph (f)(iv) has been amended.) 3. The underlying facts of the case may be shortly stated. The claimant joined the Royal Navy when aged 16. Having completed his basic training in HMS Raleigh, he joined HMS Collingwood at Fareham for Phase 2 training as a specialist in communications information systems. By then he was aged 17. On 2 December 2009, he attended a “gig” at the Royal Sovereign Sports Pavilion, which was located near playing fields across a public road from the rest of the establishment. The gig was organised by one of the physical training instructors and it was expected that the trainees would attend. A minibus was laid on to take them to the gig. There was a bar but, being under the age of 18, the claimant was not allowed to drink alcohol. Last orders were called at 23.00. Because he was under the age of 18, the claimant was required to be in bed by 23.59. 4. There was before the First-tier Tribunal a witness statement (doc 130-132) taken by the police from a fellow trainee who was also aged 17. He said that he had consumed two cans of Foster’s Lager during the evening and had seen the claimant drinking, although he only saw him drink one can. He said that, at about 23.00, he had asked the claimant if he wanted to go with him to McDonald’s (which was on the same side of the road as the Sports Pavilion) and the claimant had said he wanted to finish his drink first. They went outside for a cigarette but the claimant had still not finished his drink after they had smoked their cigarettes and so they agreed to meet at McDonald’s and the other trainee went on ahead, leaving the claimant at the pavilion. 5. At about 23.20, the claimant was hit by a car while crossing the road between the Sports Pavilion and the main gate. He suffered a catastrophic head injury, as a result of which he still requires 24-hour care and is confined to a wheelchair during the day. He does not remember what happened. The car’s driver told a police officer at the scene that the claimant had run into the road. His wife, who had been a passenger in his car, made a more detailed witness statement to the police but to the same general effect. She said that the car had just passed a Pelican crossing when the claimant darted out in front of the car from the nearside. That would have been consistent with him coming from the exit from the Sports Pavilion or from near that point. No other witness to the accident itself has been identified. It was thought at one time by some of the other trainees (doc 53 reverse) that “Rating J” might have been with the claimant when the accident happened but that appears not to have been so (see doc 112)). 6. On 26 April 2011, the claimant’s mother signed a claim form for benefit under the Armed Forces Compensation Scheme, which was received by the Service Personnel and Veterans Agency Veterans Welfare Centre in Gosport on the following Secretary of State for Defence v TG (AFCS) [2019] UKUT 24 (AAC) CAF/22/2017 4 day. The 2011 Order came into force on 9 May 2011 and, as no decision had yet been made, the claim fell to be determined under the provisions of that Order rather than its predecessor (see article 85(2)(a)). On 3 August 2011, the Agency wrote to the claimant to state that he was not entitled to compensation under the Scheme because his injury was not due to service. The reason given was that “the road traffic accident was caused by a third party”. Reference was made to article 8 but not to article 11 or 12. 7. The claimant appealed, his father signing the appeal form as the claimant’s “official appointee” and nominating Mr Coyle of the Royal British Legion as his representative. On 23 January 2013, the Agency wrote to inform the claimant that the Secretary of State had reconsidered his decision under article 53(5) of the Order but had not altered it. This time, it was mentioned that article 8 was subject to articles 11 and 12 and the reasons at least addressed article 11(8) as well as article 8 even if the particular paragraph was not expressly mentioned. “You were travelling back from a gig to your barracks when the accident that resulted in your claimed injury occurred. You were not under any service obligation to attend the gig and did so in your own free time, the provision of transportation or not is immaterial, it was not compulsory to attend by order and as such an exception under article 11 does not apply. The predominant cause of the road traffic accident that resulted in your claimed injury was the actions of a third party i.e. the driver of the car that hit you. That you were a minor under a curfew to return to your bunk by 23.55 is merely a background factor and does not constitute service causation of the accident.” However, the Decision Lay Certificate that was dated 21 January 2013 and presumably represents the actual decision that was notified two days later referred not just to articles 8 and 11(8) but also article 11(1) and (2). It was said – “[The claimant] was travelling back from a gig to his barracks when the accident that resulted in his claimed injury occurred and as such an exception under article 11(2), 11(6) or 11(9) do not apply.” On 21 August 2013, the claimant was discharged from the Royal Navy. 8. His appeal was dismissed by the First-tier Tribunal on 1 October 2013. He had produced at the hearing a large number of documents recently obtained from the Royal Navy, relating to the Ship’s Learning Account, or internal investigation, into the service circumstances leading up to the accident on 2 December 2009. Both parties had requested an adjournment, the Secretary of State so that he could consider the documents and the claimant so that he could obtain witness statements from some of those mentioned in the documents, but the First-tier Tribunal had refused those requests. The claimant appealed and, on 30 April 2014, I set aside the First-tier Tribunal’s decision (JG v Secretary of State for Defence (AFCS) [2014] UKUT 194 (AAC)) and remitted the case to the First-tier Tribunal. 9. When issuing case management directions in the Upper Tribunal, I had raised a number of questions as to the meaning of article 11 of the 2011 Order. The Secretary of State did not answer them but conceded that the appeal should be Secretary of State for Defence v TG (AFCS) [2019] UKUT 24 (AAC) CAF/22/2017 5 allowed. Against that background, I explained why I gave the following explanation for remitting the case rather than deciding it – “5. The Secretary of State concedes that the refusal to adjourn was irrational and does not seek to defend it. He wishes the case to be remitted to the First-tier Tribunal because he still wishes to seek advice on the meaning of article 11 and to investigate the facts. It is submitted that “[s]uch investigations could have the potential to effect the negating of the appeal.” Mr Coyle agrees that the case should be remitted. 6. I am satisfied that the expressed ground for refusing the adjournment was irrational and that the final decision was therefore wrong in law. I am also prepared to remit the case without giving any further consideration to the meaning of article 11, but only because such consideration would best take place against the background of clear findings of fact and I accept the parties’ contention that it is at least possible that some of the material in the new documents merits further investigation, the consequence of which might conceivably be the Secretary of State reviewing his decision under article 59 of the 2011 Order.” 10. There was a hearing in connection with the remitted appeal before the Firsttier Tribunal on 29 January 2015 when the First-tier Tribunal issued a number of case management directions, which included a direction requiring the Royal British Legion to file and serve witness statements but did not require the Secretary of State to make a submission as to the application of article 11. Uncharacteristically, the Royal British Legion failed to respond to those directions or to subsequent contact by the First-tier Tribunal. Eventually, it became apparent that the Royal British Legion had not been able to make contact with the relevant witnesses and, after further case management directions had been issued, the case was heard by the First-tier Tribunal on 25 August 2016. Despite what he had said to me, the Secretary of State did not make any written submission as to the law and, in particular, as to the meaning of article 11 and its relevance to this case. 11. Surprisingly, the Secretary of State was not represented at the hearing on 25 August 2016. The claimant was represented by Mr Nixon of the Royal British Legion. The First-tier Tribunal allowed the appeal. First, it decided that neither of paragraphs (2) or (6) of article 11 applied. Secondly, it decided that it was more likely than not that the claimant’s awareness of the danger of fast moving traffic would have been reduced by his exposure over a sustained period to traffic conditions within naval training establishments, so that it was more likely than not that he was at greater risk than any ordinary member of the public. Thirdly, it decided that the claimant’s attendance at the gig had been “required by an order” for the purpose of paragraph (8)(a) of article 11, so that he was not excluded from entitlement to benefit by virtue of paragraph (8). Fourthly, it considered article 8 and decided that service was the predominant cause of the accident. 12. The Secretary of State now appeals against the First-tier Tribunal’s decision. He accepts that payment of compensation is not excluded by article 11 but he submits that the First-tier Tribunal failed to give adequate reasons for finding that the claimant’s injury was caused by service and in any event failed to apply the correct test. The claimant submits that the First-tier Tribunal did not err on either of those grounds. Secretary of State for Defence v TG (AFCS) [2019] UKUT 24 (AAC) CAF/22/2017 6 13. Although article 11 is not now in issue, it may be helpful if I first explain why that is so, because neither the Secretary of State’s decision-maker on the reconsideration decision nor the First-tier Tribunal correctly analysed the legislation. In SM v Secretary of State for Defence (AFCS) [2017] UKUT 286 (AAC); [2018] AACR 4, I considered the relationship between articles 8 and 11 and said – “17. … At first sight, there is no connection at all between articles 8 and 11 of the 2011 Order, but article 11 in fact addresses a number of issues that have caused difficulty when considering the scope of both the civilian industrial injuries scheme and the war pensions scheme (which preceded the Armed Forces Compensation Scheme and where the issue is whether disablement is “attributable to service”) and might otherwise cause difficulty when considering whether an injury was caused by service for the purposes of article 8. The object of article 11 therefore appears to be to introduce an element of clarity in those areas, although whether it does so to the extent that it could have done may be debateable, even though some of the difficulties arising from the terms of articles 7 and 10 of the 2005 Order have been removed. In particular, it might have been conceptually neater if article 11 had been drafted so as to make provision for circumstances in which injuries would not be regarded as caused by service, rather than merely making provision for circumstances in which benefit would not be payable. As it is, there is an untidy overlap between the questions arising under article 8 and those arising under article 11. 18. Nonetheless, it will usually be unprofitable to consider whether injuries caused by travel, sport or slipping, tripping or falling might have been caused by service without considering at the same time whether the circumstances fall within an exclusion under article 11; if they do, that will be an end of the case. On the other hand, the fact that a claimant’s case falls within one of the exceptions to the exclusions in article 11 is likely considerably to assist the claimant in showing that the relevant injury was caused by service, particularly when, as is the case with article 11(4), the exception applies only where the claimant is carrying out a relevant activity “in pursuance of a service obligation”. As Ms Ward submitted, some cases will effectively be determined under article 11, whereas others will effectively be determined under article 8. …” 14. The structure of article 11 is relatively straightforward even if its interpretation is not. Paragraphs (1), (3), (5) and (8) provide that benefit is not payable in four, largely unrelated, circumstances. Paragraphs (2), (4), (6) and (9) provide for exceptions to those exclusions from benefit, paragraphs (2), (4) and (6) each only providing exceptions to the exclusion imposed by the immediately preceding paragraph and paragraph (9) providing for exceptions to all of the exclusions. Paragraphs (7) and (10) are merely supplementary. 15. In his initial decision in the present case, the Secretary of State relied on paragraphs (1) and (8), saying in relation to paragraph (1) that none of the exceptions in paragraphs (2), (6) or (9) applied even though the exceptions in paragraph (6) are not relevant to paragraph (1) save insofar as there is a reference to them in paragraph (2)(a). On reconsideration, he appears to have relied only on paragraph (8), although he did not refer to any particular paragraph by number in his decision letter. In the comment he submitted by way of a response to the appeal, he made it clear that he was still relying only on paragraph (8). However, he did not expressly state that he was no longer relying on paragraph (1) and the First-tier Secretary of State for Defence v TG (AFCS) [2019] UKUT 24 (AAC) CAF/22/2017 7 Tribunal may have thought that he was because his reconsideration letter mentioned travel. It said that the claimant was “travelling back from a gig to your barracks when the accident that resulted in your claimed injury occurred”. 16. In any event, the First-tier Tribunal said – 11. The Tribunal came to the view that Article 11 subparagraph (2) which deals with travel to and from a place of work did not apply to the particular facts of this case. The Appellant was both living and working on base for the whole of his Part II training. The fact that the base unit was in fact bisected by one single lane public road was immaterial. Subparagraph (2) appeared to cater for the situation where service personnel were living off base in either private or service accommodation and were on their way to or from their place of work. Furthermore, subparagraph (6) did not apply as the Appellant was not travelling to a Defence approved organised sporting event nor was he changing a place of work.” As the Secretary of State points out, the logic of the First-tier Tribunal’s reasoning should have led it to finding that paragraph (1) did not apply and that therefore the exceptions in paragraph (2) were not relevant, rather than merely that the exceptions in paragraphs (2) and (6) did not apply, because that in theory left open the question whether the exclusion in paragraph (1) applied. However, as I have said, the Secretary of State now accepts that paragraph (1) does not apply. The definition of “place of work” in paragraph (10)(b) supports the First-tier Tribunal’s view that paragraph (1) was not brought into play in the circumstances of this case and I accept that that is so. (That definition also makes the purpose of paragraph (2)(a) unclear because a journey “from the member's home or place of work to the place where an activity referred to in paragraph (6) is happening” is not a journey “from home to place of work or … back again” so as to be within the scope of paragraph (1), unless the activity is taking place at the person’s home or place of work as defined in paragraph (10) and he or she is travelling from or to the other of those places, which I doubt was the scenario envisaged by the draftsman.) 17. The exclusions in paragraphs (3) and (5) clearly did not apply on the facts of this case and the contrary has never been suggested. 18. As to paragraph (8), the Secretary of State does not challenge the First-tier Tribunal’s finding that the claimant’s attendance at the gig was “required by an order” so as to fall within the exception within paragraph (8)(a). Standing Orders said that events, including sporting and musical events, would be arranged by staff and physical training instructors and that information about them would be on Daily Orders. Some such events would be compulsory. The First-tier Tribunal considered it likely that the gig attended by the claimant would have been published in Daily Orders, that it had all the characteristics of a compulsory event described in the Standing Orders and that the claimant “would have quite properly taken this as an order to attend”. However, the Secretary of State’s primary position is that paragraph (8) did not apply simply because the claimant was no longer at the social event at the time of the accident, but had left and was on his way back to the main part of the establishment. This suggests a narrow reading of the exclusion, since, on a broader view, attendance at a social event can make it necessary to travel home and so can be a cause of an accident occurring on such journey. Secretary of State for Defence v TG (AFCS) [2019] UKUT 24 (AAC) CAF/22/2017 8 19. That broader view seems to have been the approach adopted by the First-tier Tribunal because when, having decided that payment was not excluded by article 11, it turned to article 8, it said – “15. Was the accident caused (in whole or in part) by service under Article 8 and if caused in part by service was service the predominant cause? The Tribunal takes the view that the Appellant attended the event as required to do by an order. He was then required to return to his accommodation by another order (the curfew) the only reason he was crossing the road was following compliance with one order and in the process of complying with another order.” 20. The Secretary of State submits that that shows an impermissible approach to article 8 because the fact that a person would not have been in the place where the accident occurred but for service is not determinative of the question whether the accident was caused by service. The claimant, on the other hand, submits that regard must be had to the First-tier Tribunal’s finding that the claimant’s awareness of the danger of fast moving traffic would have been reduced by his exposure over a sustained period to traffic conditions within HMS Collingwood. The Secretary of State concedes that that finding might be relevant but submits that it was based on inadequate reasoning. 21. The First-tier Tribunal said – “12. The Tribunal also considered whether the Appellant was at any greater risk than any member of the public in crossing the road between the two parts of the base. The Tribunal took into account that the Appellant would have spent the great majority of the previous seven months living and working inside naval training establishments. From its own expertise, the Tribunal was aware that traffic is very limited within these establishments. It is generally restricted to vehicles arriving, departing and making their way to allocated parking areas. Trainees in these establishments have right of way over vehicles and traffic speed is limited to 20 mph. The Tribunal took the view that it is more likely than not that the Appellant’s awareness of the danger of fast moving traffic would have been reduced by this exposure over a sustained period, and therefore it is more likely than not that he was at greater risk than any ordinary member of the public.” The First-tier Tribunal did not explain the relevance of that finding to the legislation but I accept that it was potentially relevant to the question posed by article 8 as to whether service was the predominant cause of the injury suffered by the claimant. 22. I agree with the Secretary of State that the First-tier Tribunal erred in its approach to article 8 but not for quite the reason suggested by him. 23. It is common ground that, where there is only one process cause of an injury, in this case the road traffic accident, the question whether that is a service cause is essentially one of attribution (see JM v Secretary of State for Defence (AFCS) [2015] UKUT 332 (AAC); [2016] AACR 3). It is also common ground that neither the question whether the claimant was on or off duty nor the question whether he or she was only where the accident took place due to service commitments is determinative. However, it does not follow that those factors are irrelevant and in my view both are potentially relevant. Secretary of State for Defence v TG (AFCS) [2019] UKUT 24 (AAC) CAF/22/2017 9 24. Insofar as the Secretary of State’s approach implies that an accident befalling a serviceman when travelling from one place where he is under a duty to be to another place where he is under a duty to be can never be caused by service for the purposes of article 8, I do not agree. Indeed, an accident while travelling from home to a place where he is under a duty to be or vice versa may in some circumstances be caused by service and payment will not be excluded by article 11(1) if the latter place is not a “place of work” as defined in article 11(10)(b). However, that is not necessarily so. One significant factor in “travelling” cases in the civilian industrial injuries scheme is whether an employee is travelling in his employer’s time (see R(I) 1/91) and, although the service context is obviously different, what seems to me to be important in the present case is that the accident occurred during a period that was free time for the claimant. That he had earlier had to attend the gig and that ultimately he had to return on time to barracks did not in my view have the effect that the accident was caused by service, because the claimant was, at the material time, “on his own business” (see Gaffney v Minister of Pensions (1952) 5 WPA 97, considered in JM at paragraph 98(v), although I accept in that case the claimant had not had a service reason for being away from his barracks in the first place). In the absence of any other consideration, I would accept that the First-tier Tribunal erred in paragraph 15 of its decision. 25. However, if service was nonetheless a cause of the claimant being at a greater risk than a civilian, the accident could still have been caused by service for the purposes of article 8 (see Giles v Minister of Pensions and National Insurance (1955) 5 WPA 445, considered in JM at paragraph 98(vi)) and I therefore agree with the parties that the First-tier Tribunal’s finding at paragraph 12 of its decision was potentially relevant. 26. The Secretary of State criticises that finding because, it is submitted, it does not follow from the fact that a person has limited traffic awareness that he or she would be likely to run out in front of the only car in the vicinity in the way described by the driver’s wife and, if her evidence was not accepted, the First-tier Tribunal did not say so and has not explained why. I doubt that the First-tier Tribunal did reject her evidence in any material respect. Even if the car was going faster than she said, it is difficult to see how the accident could have occurred if the claimant had not walked or run out in front of it in circumstances where a careful pedestrian would have stopped and seen it in good time. The road was lit (although it was drizzling and there is some evidence that the lighting was not particularly effective in the area from which the claimant emerged) and anyway the car presumably had its headlights on. I imagine that the First-tier Tribunal simply reasoned that the claimant must have failed to look and that the reason for that was probably a lack of recent experience of roads due to service. That was not an argument that had been advanced on the claimant’s behalf. The First-tier Tribunal was unable to put that argument to the Secretary of State because he was not represented. I am told that that was due to a lack of resources although I am surprised that this case was not prioritised given the amount that may have been at stake and that no request was made for a postponement if representation on that day really could not be arranged. 27. I do not entirely accept the Secretary of State’s argument because it seems to me that the First-tier Tribunal did not reason that a lack of road awareness was likely to make people run in front of cars but only that, where a person had run in front of a Secretary of State for Defence v TG (AFCS) [2019] UKUT 24 (AAC) CAF/22/2017 10 car, the probable cause was a lack of road awareness and that the probable cause of a lack of road awareness was living and working in a naval establishment. However, if generally accepted, its reasoning would have the effect that there was a presumption that any road traffic accident due to a naval trainee walking or running in front of a car was due to service, wherever the accident occurred. It seems to me that the First-tier Tribunal failed to have regard to the possibility that there might have been other causes of the accident apart from a lack of road awareness induced by service in naval training establishments. For instance, any pre-service lack of experience of roads might have been at least as relevant but, in any case, not all carelessness on roads is due to a lack of experience of them. Moreover, in the present case, the First-tier Tribunal ought to have considered whether the consumption of alcohol might have been at least as important a factor. 28. There is clear evidence that the claimant had consumed some alcohol at the Sports Pavilion notwithstanding that he was not allowed to do so. I have already referred to a statement by a fellow trainee that was given to the police. The Ship’s Learning Account was not concerned with establishing exactly what had happened on the evening of 2 December 2009 but it was concerned with drawing lessons from what might have happened and a considerable number of its recommendations were in relation to the supervision of trainees under the age of 18, particularly at events in the Sports Pavilion where alcohol was available, although it also recommended carrying out a risk assessment of the pedestrian route from the main establishment to the Sports Pavilion and raising the question of signage with the local authority. 29. No doubt because of its focus, most of the other trainees were interviewed together by an officer, with another officer and two senior ratings present, rather than individually, and they do not appear to have been closely questioned about what the claimant had drunk and exactly how he had obtained the drink. But the record of the interview (doc 52, reverse) stated that the trainees said – “6. … it was apparent that by the end of the evening he was under the influence of alcohol, although at no time was he considered unfit to carry out a duty that he may be reasonably expected to perform. 7. At approximately 2315 [the claimant] stated that he had to return to his accommodation (as he was required to be in bed no later than 2359 because he was Under 18 years of age). 8. He was seen walking down the steps at the Sports pavilion with his hands in his pockets, he negotiated the steps with ease and at no time did he appear unsteady on his feet or in an unfit state to make his way back to his accommodation.” The officer who had been Officer of the Day on 2 December 2009 recalled that one of those trainees was “particularly upset and commented that he had bought [the claimant] one or two beers that evening” (doc 86, reverse). A physical training instructor who had been at the gig and said that he had seen the claimant with a nonalcoholic drink but not an alcoholic one, later saw the claimant outside shortly before the accident and “was under the impression that [the claimant] had been drinking” (doc 107). The trainees and bar staff disagreed as to whether bar staff checked ID cards (on which there should have been a sticker identifying those under 18, although it was not unknown for such stickers to come adrift) but there was evidence Secretary of State for Defence v TG (AFCS) [2019] UKUT 24 (AAC) CAF/22/2017 11 that it was possible for those over 18 to buy drinks for those under that age and that the ratings tasked with clearing glasses were phase 2 trainees at the start of their course who were too junior themselves to enforce in practice the regulations against under-age drinking. 30. That evidence required consideration. It seems fairly clear that no-one who saw the claimant shortly before the accident thought that he was drunk as that term was defined in Standing Orders – “he is unfit to be entrusted with his duty or with any other duty he is likely to be called upon to perform, or acts in a disorderly manner or manner likely to bring discredit on Her Majesty’s Service” (doc 82) – or so as to need escorting back to his accommodation, but, quite apart from the possibility of them having underestimated the extent to which he had been affected, the evidence at least raises the question whether his judgment might have been impaired as a result of the consumption of alcohol. 31. In any event, the First-tier Tribunal either failed to consider other possible reasons why the claimant might have been involved in the accident or, as the Secretary of State submits, it failed to give adequate reasons for its decision. In either event, it erred in law and its decision must be set aside. 32. The Secretary of State has invited me to substitute my own decision rather than remitting the case to the First-tier Tribunal and Mr Tucker for the claimant did not object to me doing so if, contrary to his submission, I found the First-tier Tribunal to have erred in law. This seems appropriate, since it does not appear that any more evidence would be elicited at another hearing. 33. I have already explained that the facts that the claimant had been required to attend the gig and had to cross the road in order to return to his accommodation where he was required to be by midnight do not by themselves lead to the conclusion that the claimant’s injury was caused by service because he was on a public road in his free time. 34. As to the question whether service placed him at any particular risk, I accept the First-tier Tribunal’s finding that there is little traffic within naval training establishments but I do not accept that any consequent lack of recent experience of traffic is a sufficient explanation for the claimant making a misjudgement of the enormity that it seems likely that he made in this case so that the accident can properly be attributed to service even though it took place on a public road in the claimant’s free time. There is no evidence that a lack of traffic in HMS Collingwood actually had the effect of making the claimant careless on roads. Frankly, I consider it more likely that alcohol played a part and, if it did not, it is simply unclear why the claimant walked or ran in front of the car as he appears to have done. One can speculate as to the mistake he made but it would be no more than speculation. In these circumstances, I cannot find that the claimant’s injury was caused by service 35. It has rightly not been argued on behalf of the claimant that, if the claimant’s judgment was impaired by alcohol, his injury was caused by service given the finding that he was obliged to attend the gig and what might be said to be deficiencies in the supervision of those under the age of 18. Setting on one side article 12(b) – because it is arguable, given the other paragraphs of article 12, that article 12(b) applies only Secretary of State for Defence v TG (AFCS) [2019] UKUT 24 (AAC) CAF/22/2017 12 where alcohol consumption directly causes physical or mental illness and not where it merely leads to a lack of judgment that leads to an accident – it seems to me that it cannot be said that drinking alcohol was caused by service when the claimant was under express orders not to drink. Service was merely the setting. See Monaghan v Minister of Pensions (1947) 1 WPA 971, considered in JM at paragraph 98(iv), where a serviceman on active service died as a result of inhaling his own vomit after drinking, with other servicemen, raw spirit abandoned by the enemy. Denning J held that, although war service gave the opportunity for the drinking, the real cause of the death was entirely the personal action of the serviceman. I do not consider that it matters that the claimant in the present case was under 18. He was subject to naval discipline. It was his personal choice not to obey orders and even if, which I do not decide, the supervision was inadequate and it is not particularly surprising that he drank while at a gig he was required to attend with fellow trainees who were allowed to drink, the consumption of alcohol to the extent that his judgement was impaired was not a service obligation or part of a service obligation and therefore an injury caused by the impairment could not be said to be caused by service. 36. One cannot but have sympathy for the claimant and his parents. However, not all injuries lead to payments of compensation and, for the reasons I have given, I am satisfied that the terms of the Armed Forces Compensation Scheme, as set out in the 2011 Order, are not satisfied in this case. Mark Rowland 21 January 2019
SM v Secretary of State for Defence (AFCS): [2017] UKUT 286 (AAC); [2018] AACR 4
SM v Secretary of State for Defence (AFCS) [2017] UKUT 286 (AAC) CAF/2693/2016 1 IN THE UPPER TRIBUNAL Case No. CAF/2693/2016 ADMINISTRATIVE APPEALS CHAMBER Before Upper Tribunal Judge Rowland The Appellant was represented by Mr Glyn Tucker of the Royal British Legion. The Respondent was represented by Ms Galina Ward of counsel, instructed by the Government Legal Department. Decision: The claimant’s appeal is allowed. The decision of the First-tier Tribunal dated 12 August 2014 is set aside and there is substituted a decision as follows – Insofar as the injury to his hips and lower back suffered by the claimant on 21 January 2013 was caused by him slipping and falling, it was caused by service and none of the provisions of Article 11 of the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011 (SI 2011/517) that make benefit not payable applies. Other issues arising on the claimant’s claim for benefit under the 2011 Order must be determined by the Secretary of State. REASONS FOR DECISION 1. This is an appeal, brought by the claimant with my permission, against a decision of the First-tier Tribunal dated 12 August 2014, dismissing his appeal against a reconsideration decision of the Secretary of State dated 17 October 2013 confirming his earlier decision of 14 September 2013 to the effect that the claimant was not entitled to an award of compensation under the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011 (SI 2011/517) because the relevant claimed injury to his hips and lower back was not caused by service. Background – the facts, the legislation and the procedural history 2. The basic facts of the case were not in dispute before the First-tier Tribunal. The claimant was a colonel in the Army and worked in the headquarters building of the Army Air Corps, which was inside a secure compound within the Army base at Middle Wallop. The circumstances in which he was injured were succinctly summarised by the First-tier Tribunal in its findings at paragraph 10 of its decision – “On 21/1/13 at 7:45 am the appellant parked his car, walked and entered the army compound using his chip and PIN identity. The appellant ascended the steps to the HQ building and fell. The appellant fell due to a combination of a loose step and icy conditions. Immediately after the accident the ice was cleared and the steps were replaced two days later.” In the MOD Accident Reporting Form that the claimant had completed, a copy of which he provided (together with photographs of the scene of the accident, before SM v Secretary of State for Defence (AFCS) [2017] UKUT 286 (AAC) CAF/2693/2016 2 and after the ice was cleared) with his claim under the Armed Forces Compensation Scheme, he described the steps as having been “covered with sheet ice and snow” and his oral evidence to the First-tier Tribunal was to the same effect. 3. Article 8 of the 2011 Order provides – “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.” 4. Article 11 provides – “Injury and death – exclusions relating to travel, sport and slipping and tripping 11.—(1) Except where paragraph (2) or (9) apply, 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 travel from home to place of work or during travel back again. (2) …. (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. (5) …. (6) …. (7) …. (8) …. (9) This paragraph applies where the injury, the worsening of the injury or death was caused (wholly or partly) by reason of— (a) acts of terrorism or other warlike activities in each case directed towards the person as a member of the forces as such; or (b) the member being called out to and travelling to or from an emergency. (10) In this article— (a) “home” means accommodation, including service accommodation, in which a member has lived or is expected to live for 3 or more months, and a member may have more than one home; (b) “place of work” means the place of work to which a member is assigned or temporarily attached; (c) ….” 5. The Secretary of State put his case in slightly different ways in his initial decision refusing the claim, his reconsideration decision and a “comment” in response to the claimant’s appeal, but in essence he argued that the claimed injury was not caused by service for the purposes of article 8 because the claimant was not SM v Secretary of State for Defence (AFCS) [2017] UKUT 286 (AAC) CAF/2693/2016 3 “doing his job” when he was climbing the steps, which was “an activity that everyone is required to do”. He further argued that article 11(3) applied because the claimant was not assisted by article 11(4)(a) and (b), because “[w]alking is not classified as a hazardous activity and HQ AAC, Middle Wallop is not a hazardous environment”. The claimant argued that going up the steps was the only way of getting to the place where he worked and that the activity of going up the steps was made hazardous by the conditions and that the conditions also made the environment hazardous. At the hearing itself, the Secretary of State’s representative appears also to have relied on article 11(1), but the claimant argued that he was already at work when the injury was incurred. 6. In the event, the First-tier Tribunal found it unnecessary to consider article 11 at all. It decided the case under article 8, stating – “The cause of the injury was icy, loose steps. The icy conditions were widespread across the region. There is nothing service related about the icy weather conditions. The tribunal does not find that service was the predominant cause of the injury.” 7. The claimant applied for permission to appeal. The First-tier Tribunal appears informally to have stayed the application to await the Upper Tribunal’s decision in JM v Secretary of State for Defence (AFCS) [2015] UKUT 332 (AAC); [2016] AACR 3 but there was then further delay because the First-tier Tribunal’s administration were expecting a submission from the Secretary of State for which no request had been made in this case because the appeal had already been determined. In any event, on 3 June 2016, the First-tier Tribunal refused permission to appeal. The application was renewed to the Upper Tribunal on the ground that the First-tier Tribunal’s decision was not consistent with JM. When I gave permission to appeal, I said – “The ground of appeal merits consideration. It might be argued that there would be no need for much of article 11 of the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011 (SI 2011/517) if the First-tier Tribunal’s analysis is correct. On the other hand, even if that analysis is not correct, it is arguable that walking up the icy and loose steps of an entrance to a permanent building does not amount to either “activity of a hazardous nature” or “activity in a hazardous environment” for the purposes of article 11(4). I currently consider that that issue ought to be addressed by the Upper Tribunal on this appeal. Are there any published consultation or other documents explaining the intended scope of the Armed Forces Compensation Scheme that might be both admissible and useful for the purpose of construing articles 8 and 11 of the 2011 Order?” 8. The Secretary of State’s response was brief. In response to my question and the possible need to consider article 11, reference was made to Secretary of State for Defence v PA [2016] UKUT 500 (AAC); [2017] AACR 18, which I shall consider further below. However, in paragraph 9 of the response, the First-tier Tribunal’s reasoning was defended– “9. There was only one predominant cause of the injury in this case and that was the weather conditions, service merely providing the setting. As there was a Health and Safety issue the Appellant has been advised to claim for civil damages.” SM v Secretary of State for Defence (AFCS) [2017] UKUT 286 (AAC) CAF/2693/2016 4 The Secretary of State did not seek an oral hearing, but Mr Tucker did if the Upper Tribunal still considered that it ought to consider the effect of article 11(4). I granted that request. 9. Less than 48 hours before the hearing, the Government Legal Department, which was by then representing the Secretary of State, sent to the Upper Tribunal an email conceding that the First-tier Tribunal’s decision was wrong in law in the light of JM and submitting that the Upper Tribunal was “self-evidently the wrong forum” for making a final decision because “it would require the Upper Tribunal to make farreaching findings of fact as to whether service was the predominant cause of injury, as well as requiring the Upper Tribunal to make findings on complex factual issues that have not yet been assessed by the First-tier Tribunal: such as whether any of the exceptions – under article 11 of the Armed Forces Compensation Scheme – for trips, slips and falls (and the carve out to those sections) apply”. It was submitted that the Upper Tribunal lacked the relevant experience and the necessary time to make proper assessments of those issues. I refused to revoke the direction for an oral hearing, saying that the outstanding issues appeared to be principally issues of law, rather than of fact. 10. At the hearing, Ms Ward maintained the position that the First-tier Tribunal had erred and that the case should be remitted. She argued that the question whether an injury was caused by service was a question of judgment that ought to be determined by the First-tier Tribunal which would have the advantage of the expertise of a member who has substantial experience of service in Her Majesty's naval, military, or air forces and, similarly, that the question whether an environment was hazardous required evaluation of the risk by reference to the standards of service life so that, again, the expertise of the service member of the First-tier Tribunal would be invaluable. To remit or not to remit? 11. When it has set aside a decision of the First-tier Tribunal, the Upper Tribunal has a broad discretion either to remit the case to the First-tier Tribunal or to re-make the decision itself (see section 12(2)(b) of the Tribunals, Courts and Enforcement Act 2007). One consideration is simply convenience, both for the Upper Tribunal and for the parties, but another is the expertise that the First-tier Tribunal has and the Upper Tribunal does not. I do not doubt that there are many cases where it would be desirable for the question whether an injury was caused by service to be considered by the First-tier Tribunal due to the particular expertise of the members, whether it is because having the expertise is relevant when facts are being found or whether it is relevant in the process of evaluation required to determine whether an injury has been caused by service. However, here all the necessary facts relating to the accident suffered by the claimant have been found – or, at least, the evidence is reasonably clear and has not been contradicted or challenged – and the circumstances in which the injury was suffered were not peculiar to service. The nature of the evaluation required to determine whether the injury was caused by service is therefore no different from the type of evaluation that would be required to SM v Secretary of State for Defence (AFCS) [2017] UKUT 286 (AAC) CAF/2693/2016 5 determine whether a similar injury suffered by a civilian employee going up the steps of his place of work was “caused by accident arising out of and in the course of his employment” for the purposes of the civilian industrial injuries scheme (see now section 94 of the Social Security Contributions and Benefits Act 1992) or whether an employee was “in the course of his employment” for the purpose of determining whether an employer is vicariously liable for the acts of the employee. The result of the evaluation may be different, because the questions to be determined are different, but the nature of the exercise is the same and is not inherently beyond the capacity of a judge. 12. Moreover, the functions of the Upper Tribunal include determining points of law – which include points as to the construction of legislation – and also the giving of guidance more generally to the First-tier Tribunal and to the Secretary of State’s decision-makers in order to promote consistency in decision-making and to make it unnecessary to decide every case from first principles (see R.(Jones) v First-tier Tribunal [2013] UKSC 19; [2013] 2 A.C. 48; [2013] AACR 25 at [41] to [48]) and, when the facts are clear and uncomplicated, it can be positively unhelpful to remit a case if it suggests that more than one decision is possible on the facts when really there is only one possible outcome. There are, of course, cases where different people may reasonably ascribe different weight to the various factors that have to be taken into account when determining whether an injury was caused by service and so different conclusions can reasonably be reached (see JM at [53] to [59]), but this is not such a case and I consider that the Upper Tribunal would be failing in its duty to provide guidance if it did not determine this case itself. 13. The need for guidance as to the construction of the legislation and its application can be particularly acute in cases under the 2011 Order because there are several provisions in the Order that are expressed in language that potentially admits to more than one construction and it is not always easy to discern the purpose of its provisions either from the Order itself or from extra-statutory material. Indeed, there is very little extra-statutory material that might indicate the purpose of particular provisions of the Order, there not having been any public consultation before the Order was made and the Order not having been the subject of any detailed Parliamentary scrutiny. Such publicly available materials as there are, such as the guidance published by the Ministry of Defence as JSP 765 Armed Forces Compensation Scheme: Statement of Policy, mentioned in JM at [85] and [103], and the Armed Forces Covenant on which Mr Tucker relied, to both of which I shall refer further below, tend to be pitched at a high level of abstraction and so are often of little practical help in individual cases. Moreover, statements of policy made after legislation has been enacted need to be treated with some caution. Ms Ward argued that the Upper Tribunal had already given sufficient guidance in JM and PA on the issues arising in this case but the latter case was decided in a rather different context from the present case and it is plain that the parties are not agreed as to its significance. The agreed error of law SM v Secretary of State for Defence (AFCS) [2017] UKUT 286 (AAC) CAF/2693/2016 6 14. As I have said, it is now common ground that the First-tier Tribunal erred in law in this case. The First-tier Tribunal’s decision was made before JM was decided and so it did not have the advantage of the analysis of causation at [80] to [83] of that decision, where it was said – “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. 83. Deciding whether a process cause is a service cause is an exercise of attribution, and so, of categorisation.” 15. After other issues had been considered, it was said – “118. The analysis we have set out founds the conclusion that the correct approach to the issues of cause and predominant cause under the AFCS is: i) First identify the potential process cause or causes (i.e. the events or processes operating on the body or mind that have caused the injury); ii) Secondly, discount potential process causes that are too remote or uncertain to be regarded as a relevant process cause; iii) Thirdly, categorise the relevant process cause or causes by deciding whether the circumstances in which each process cause operated were service or non-service causes. It is at this stage that a consideration of those circumstances comes into play and the old cases on the identification of a service cause applying the old attributability test provide guidance. iv) Fourthly, if all of the relevant process causes are not categorised as service causes, apply the predominancy test.” 16. In the present case, the relevant process cause of the injury was the effect of the claimant’s body coming into contact with the ground when he fell. There might also have been some twisting before the claimant hit the ground but the precise mechanisms by which the injury or injuries were incurred are not material because they were all the consequence of the slip and fall and can be treated as a single process cause even though there may have been more than one injury for the SM v Secretary of State for Defence (AFCS) [2017] UKUT 286 (AAC) CAF/2693/2016 7 purposes of Schedule 3 to the 2011 Order. The question that arises on this appeal is whether the consequences of the slip and fall were “sufficiently linked to service to satisfy the test that the injury due to [that] process cause is caused by service”. That the immediate causes of the fall were the weather and the loose step does not mean that there was no sufficient link to service. I agree with the parties that the First-tier Tribunal erred in failing to consider whether the claimed link to service – that the claimant was arriving at his place of work as an Army officer when he slipped and fell – was sufficient to justify categorising that process cause as a service cause. It is on that ground that I set aside the First-tier Tribunal’s decision. The relationship between article 8 and article 11 17. I turn, then, to the construction of the legislation and, in particular, the relationship between article 8 and article 11. A similar issue as to the relationship between articles 7 and 10 of the Armed Forces and Reserve Forces (Compensation Scheme) Order 2005 (SI 2005/439) was considered in EW v Secretary of State for Defence (AFCS) [2011] UKUT 186 (AAC); [2012] AACR 3. At first sight, there is no connection at all between articles 8 and 11 of the 2011 Order, but article 11 in fact addresses a number of issues that have caused difficulty when considering the scope of both the civilian industrial injuries scheme and the war pensions scheme (which preceded the Armed Forces Compensation Scheme and where the issue is whether disablement is “attributable to service”) and might otherwise cause difficulty when considering whether an injury was caused by service for the purposes of article 8. The object of article 11 therefore appears to be to introduce an element of clarity in those areas, although whether it does so to the extent that it could have done may be debateable, even though some of the difficulties arising from the terms of articles 7 and 10 of the 2005 Order have been removed. In particular, it might have been conceptually neater if article 11 had been drafted so as to make provision for circumstances in which injuries would not be regarded as caused by service, rather than merely making provision for circumstances in which benefit would not be payable. As it is, there is an untidy overlap between the questions arising under article 8 and those arising under article 11. 18. Nonetheless, it will usually be unprofitable to consider whether injuries caused by travel, sport or slipping, tripping or falling might have been caused by service without considering at the same time whether the circumstances fall within an exclusion under article 11; if they do, that will be an end of the case. On the other hand, the fact that a claimant’s case falls within one of the exceptions to the exclusions in article 11 is likely considerably to assist the claimant in showing that the relevant injury was caused by service, particularly when, as is the case with article 11(4), the exception applies only where the claimant is carrying out a relevant activity “in pursuance of a service obligation”. As Ms Ward submitted, some cases will effectively be determined under article 11, whereas others will effectively be determined under article 8. In the present case, there are issues under both article 8 and article 11, but it is convenient to consider article 11 first. Article 11 - travelling SM v Secretary of State for Defence (AFCS) [2017] UKUT 286 (AAC) CAF/2693/2016 8 19. Injuries caused by travel are one matter addressed in article 11. Even without article 11(1), I would not usually have considered an injury sustained while a claimant was travelling from home to his or her usual place of work to have been caused by service, for much the same reasons as Upper Tribunal Judge Mesher gave in EW when reaching a similar conclusion. It is to be noted that a civilian claiming industrial injuries benefit would not generally be regarded as being in the course of his employment during such a journey (Smith v Stages [1989] A.C. 928, applied in R(I) 1/91), unless travelling in his or her employer’s transport (section 99 of the 1992 Act), and, while that is not determinative, I would see no reason to take a different approach in the circumstances of the present case. 20. However article 11(1) raises a question as to when the journey ends and the person has arrived at, or left, work. In the present case, it is not difficult to answer that question. I do not have to consider what the answer would have been had the claimant been injured on a road within the Army base but before he had reached the car park or, indeed, what the answer would have been had he slipped in the car park. In my judgment, once the claimant had entered the secure compound and was going up the entrance steps to the building where he worked, he was no longer travelling but had arrived. I am fortified in that view both by the fact that the service member of the First-tier Tribunal recorded the thinking of the First-tier Tribunal at the end of his record of the proceedings and it is apparent that it would have reached the same conclusion had it considered it necessary to do so (see doc 44A, although the notes of the deliberations should have been kept separate from the record of proceedings and not left in the First-tier Tribunal’s file to be revealed to the parties and to me – see R.(AW) v First-tier Tribunal (CIC) [2013] UKUT 350 (AAC)) and also by the fact that I have no doubt that the same approach would have been taken under the civilian industrial injuries scheme (see, for example, R(I) 3/72 and R 2/75(II), the latter case a decision of a Tribunal of National Insurance Commissioners in Northern Ireland). Thus, article 11(1) does not apply in this case and it is unnecessary for me to consider the significance, if any, of the use of the words “by travel”, rather than “while travelling”. Article 11 – slipping, tripping and falling 21. Injuries caused by slipping, tripping or falling are also addressed in article 11. As the First-tier Tribunal found the claimant to have fallen, article 11(3) has the effect that no benefit will be payable unless one of the exceptions identified in article 11(4) and (9) applies. It is not suggested that article 11(4)(c) or (9) is relevant to the present case; the question is whether article 11(4)(a) or (b) applies. Article 11(4)(a) or (b) applies if the claimant, in pursuance of a service obligation, was participating in activity of a hazardous nature or activity in a hazardous environment. (I have not heard argument as to the scope of article 11(4)(c) but it seems fairly obvious that that subparagraph exists because it is recognised that training in pursuance of a service obligation may contribute to a person slipping, tripping or falling and so should be within the scope of the scheme, even if the training is not inherently hazardous or carried out in a hazardous environment; otherwise there would be no need for specific provision to be made for it.) SM v Secretary of State for Defence (AFCS) [2017] UKUT 286 (AAC) CAF/2693/2016 9 22. I do not consider there to be any particular significance in the use of the words “participating” or “activity”, which seem to have been used due to the structure of the paragraph. Where subparagraphs (a) or (b) are concerned, the issue is simply whether the claimant was doing something hazardous or was doing something in a hazardous environment. 23. However, the Secretary of State relied on an unpublished decision of the Upper Tribunal on file CAF/2260/2014 and on PA, which happen both to be cases in which Ms Ward appeared for the Secretary of State and Mr Tucker appeared for the claimant, for the proposition that participating in routine activities does not fall within the scope of article 11(4). I am not satisfied that those authorities support that proposition and, if they did, I would respectfully disagree with them on that point. 24. The case on file CAF/2260/2014 concerned a soldier who had slipped while trying to get into a camp bed in a tent. He had been on duty guarding the perimeter of an exercise ground and the main issue was whether he fell within the scope of article 11(4)(c), as the First-tier Tribunal had found. Upper Tribunal Judge LloydDavies said – “5. It is clear that the applicant was not himself a trainee on the exercise – see sub-paragraphs (a) and (d) of the tribunal’s decision. His was a supporting role of being on ‘maintenance duty’, which included guard duty. In my judgment it is clear that in order for Article 11(4)(c) to apply the applicant must actually be taking part in the training 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 an 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.” 25. Reference was made to that decision in PA. In particular, when pointing out that her interpretation of article 11(4)(b) was consistent with previous Upper Tribunal case law, Upper Tribunal Judge Knowles QC said – “33. … the exceptions in Article 11(4) to the general exclusion of slipping tripping and falling accidents were intended to capture “non-routine” activities (see paragraph 5 of [CAF/2260/2014]).” 26. The Secretary of State argues that climbing the steps in the present case was a routine activity, as indeed it was. It is, however, to be noted that Judge LloydDavies remitted the case before him for the First-tier Tribunal to consider article 11(4)(b), rejecting the written submission of the Secretary of State that there could be no basis for a decision in the claimant’s favour under that subparagaph, although he did record that Ms Ward did not resist the possibility of remittal at the hearing. In any event, I do not consider that Judge Lloyd-Davies can be taken to have intended to add a gloss to article 11(4) by using the word “non-routine”. It seems to me that he was simply making the point that the claimant had to be participating in one of the specified activities if he was to fall within the scope of the article and that he considered that the fact that subparagraphs (a) and (b) required there to be an element of hazard for the claimant indicated that subparagraph (c) did not extend to SM v Secretary of State for Defence (AFCS) [2017] UKUT 286 (AAC) CAF/2693/2016 10 those merely facilitating training. In particular, I do not consider that he intended to suggest that article 11(4)(b) could not apply in a case where there was a service obligation to carry out a routine activity in a hazardous environment. 27. Such a construction could not be supported either on the wording of the legislation or on any likely policy grounds. If, as is presumably the case, the purpose of article 11(4) is to ensure that those servicemen who have been sufficiently seriously injured to qualify for an award under the 2011 Order are eligible for such an award if they have been injured as a result of being exposed to a hazard by a service obligation, I cannot see any justification for refusing an award on the ground that the activity the serviceman was obliged to do was routine. The only issue should be whether the activity was hazardous or carried out in a hazardous environment or was training of the specified kind. That, indeed, was the approach taken by Judge Knowles in PA. Her decision did not depend on the activity in which the claimant was participating being routine, which arguably it was not, and I do not consider that she can be taken to have endorsed the Secretary of State’s reading of Judge Lloyd-Davies’ decision. 28. The next question that arises is whether the claimant was acting in pursuance of a service obligation when he ascended the steps to the headquarters building. In my judgment, he clearly was. The claimant had finished travelling and had arrived at work. He was climbing those steps at this particular time because he had to do so to reach the office where he was required to work. There are no complicating issues. I do not, for instance, have to consider what the position would have been had the claimant been acting in breach of an instruction to use another entrance when the conditions were icy, because there has been no suggestion of any such instruction and the claimant’s oral evidence to the First-tier Tribunal was that the front entrance was the only way in. Nor do I have to consider what the position would have been had the claimant arrived early so as, say, to fit in before he started work a game of squash with a colleague – or, if it would make a difference in a service context, a game of chess or poker – because, again, there has been no such suggestion (although he had earlier made a detour to collect some items before entering the secure compound). This is a straightforward case. By seeking remittal of the case, the Secretary of State concedes that the claimant could be found by the First-tier Tribunal to have been acting under a service obligation. I cannot see any reason whatsoever for finding that he was not. 29. Was the claimant participating in activity of a hazardous nature so as fall within article 11(4)(a)? Plainly, climbing a flight of steps would not usually be described as a hazardous activity. Can it become one if the steps are loose or icy? In the absence of article 11(4)(b), I might accept that it could. However, it seems to me that, if article 11(4) applies at all, this is a case where the claimant was doing something that was not of a hazardous nature but was being done in a hazardous environment. That, indeed, is how Mr Tucker puts the claimant’s case. 30. Was the claimant participating in an activity in a hazardous environment so as fall within article 11(4)(b)? A flight of steps is not normally hazardous; the question is whether it may become so if steps are loose or icy with the result that climbing the SM v Secretary of State for Defence (AFCS) [2017] UKUT 286 (AAC) CAF/2693/2016 11 steps is an activity in a hazardous environment. Again, in arguing for remittal, the Secretary of State implicitly accepts that it could be found that article 11(4)(b) applied in this case, but it is his submission that it should not be found to apply and he again relies on PA. 31. In PA, the claimant had overbalanced when going to sit on a wall outside a hotel in Israel while waiting for a bus to take him and other soldiers in his unit to a place where a training exercise was to take place. The First-tier Tribunal held that the whole of the territory of Israel was a hazardous environment for British Army personnel. Judge Knowles QC allowed the Secretary of State’s appeal, beginning her summary of her conclusions as follows – “2. I have concluded that a “hazardous environment” is one where the risk of slipping, tripping or falling during activity performed in pursuance of a service obligation is likely to be increased. The focus is not solely on whether the environment could in general terms be described as “hazardous” but on whether the activity being carried out by the member in pursuance of a service obligation was rendered more hazardous due to the nature of the environment. …” 32. Having set out the facts and the law, she explained the background to article 11 at [19] to [21] and concluded that – “22. … the slipping and tripping provisions in the 2011 AFCS introduced greater clarity as to when such accidents qualified for an award of compensation. The current provisions of the AFCS are aimed at identifying those trips, slips and falls that are likely to have been caused (or at least predominantly caused) by service, because a service obligation has increased the risk of slipping, tripping or falling to the extent that it can be regarded as the predominant cause of the accident.” I would be inclined to add that article 11(4)(b) is also concerned with identifying circumstances in which the environment increases the risk of injury if the claimant does slip, trip or fall even if it does not increase the risk of slipping, tripping or falling in the first place. I have in mind a person working in close proximity to dangerous machinery. However, that point does not arise in the present case. 33. Judge Knowles QC then put her conclusion in two different ways, having considered the case by reference to two activities, waiting for a bus and going to sit on a wall – “34. … The environment in which the Respondent came to be injured could not, on any sensible interpretation of the 2011 AFCS, be classified as “hazardous”. There was nothing about the activity of a soldier waiting for a bus outside a hotel more likely to lead to a slip, trip or fall than if a civilian had been participating in the same activity in ordinary – that is non-service – circumstances.” “47. … Going to sit on a wall outside a hotel was not an activity of a hazardous nature in that it did not of itself increase the risk of a fall occurring. Equally it was not an activity in a hazardous environment because there was nothing about the physical environment outside the hotel which made it more likely that the Respondent – or indeed any other person present outside the hotel – would fall. …” SM v Secretary of State for Defence (AFCS) [2017] UKUT 286 (AAC) CAF/2693/2016 12 34. This shows that there are different ways of analysing a case of this nature and that it may be important to consider more than one of them. Indeed, in the light of the way that Judge Knowles QC identified the issues at [2] and [22], it may well be the best approach in most cases to consider first whether there was a potentially relevant hazard and then, if so, whether it was either due to the nature of the activity or was environmental. It is neither necessary nor helpful to identify in the abstract a geographical area for the purpose of considering whether it is a hazardous environment. 35. Weather conditions are plainly environmental and a loose step is equally obviously part of the physical environment. Therefore, in this case, if either the ice or the loose step was properly to be described as a hazard, so that the environment was hazardous, the present case falls within article 11(4)(b). 36. In submitting that this case should be remitted, Ms Ward argued that it was necessary to judge hazards by the standards of service life. However, she denied that it was the Secretary of State’s case that, because servicemen are required to take more risks than most civilians, there was a correspondingly higher threshold for judging whether an activity or environment was hazardous than there would otherwise be. In my judgment, it is irrelevant whether there is a greater likelihood of a serviceman slipping, tripping or falling than there would have been of someone participating in the same activity in non-service circumstances; the question is simply whether the environment would have significantly increased the likelihood of any person slipping, tripping or falling or suffering injury if they did so. If an environment is hazardous to a serviceman, it is likely to be equally hazardous to anyone else and vice versa. It is plain that Judge Knowles QC did not mean to suggest a different test in paragraph [34] of her decision from that in paragraph [47] and that, in comparing the position of a serviceman to that of a civilian in paragraph [34], it was implicit that the environment would not be hazardous to a civilian and the judge was merely explaining that the environment was not hazardous to the claimant because it was obviously not hazardous for a civilian and, contrary to the claimant’s case, there was no reason to distinguish between the two. 37. Were the steps hazardous in the present case? The mere fact that someone slips or trips does not necessarily imply a hazard, and I accept that a minor degree of slipperiness or unevenness in a surface might not lead to the surface being described as hazardous. Thus, this question is fact specific and there may be room for different opinions in some cases. But, where slipperiness or unevenness creates a significant risk of people injuring themselves, participating in an activity on the surface should be regarded as participating in an activity in a hazardous environment. 38. Ice on pavements and roads is generally regarded as creating a hazard, which is why people responsible for such surfaces are often, although not invariably, expected to do something about it. Ice on steps creates an even more obvious risk. I do not have much in the way of detail about the hazard created by the loose step, but it seems to me significant that not only was the ice cleared promptly but the SM v Secretary of State for Defence (AFCS) [2017] UKUT 286 (AAC) CAF/2693/2016 13 defect in the step was repaired two days later (a point that the First-tier Tribunal thought important enough to mention in its very short decision). It is irrelevant whether anyone was at fault in not clearing the steps of ice or repairing the loose step earlier. I am satisfied that the ice and loose step had the effect that article 11(4)(b) applied in this case, so that article 11(3) did not have the effect of preventing benefit from being paid. 39. Insofar as extra-statutory materials provide any assistance, they tend to support this approach to article 11(4). In PA, Judge Knowles QC recorded that Ms Ward had told her that, prior to the implementation of the 2011 Order, the services had been asked for examples of hazardous environments likely to make slipping, tripping or falling more likely and that only the Royal Navy had come up with an example – being on board ship – that had been used in the Statement of Policy which, at the time that PA was decided, said – “2.29 Being on board ship is considered to be a hazardous environment due to the presence of hatchways, ladders and doors with sills for sealing etc. Subject to meeting the balance of probabilities test, slips and trips which occur on board ship are more likely to be considered to be predominantly due to service relative to other circumstances. All other claims will be considered on the facts of the case.” 40. However, the reference to a ship was removed shortly after her decision was given and paragraph 2.29 of the December 2016 version of the Statement of Policy (V4.0) says – “2.29 Being in a hazardous environment, refers to the immediate environment for example having to carry out essential duties in unfamiliar or unlighted environment, or extreme weather conditions, such as a severe storm or in a flood. It is not about duties in an operational or deployed zone as such. Subject to meeting the balance of probabilities test, slips and trips which occur in extreme weather conditions or unfamiliar environments are more likely to be considered to be predominantly due to service relative to other circumstances. All other claims will be considered on the facts of the case.” 41. Ms Ward had not been made aware of that change until I drew it to her attention during the hearing of this appeal and it seems to me that it rather undermines some of her arguments. The first two sentences of the paragraph are expressed in more general terms than before which, in this context, is more useful. Had she been aware of the change, she might not have submitted that the term “environment” suggests that a wide area must be considered (although in this case the First-tier Tribunal in fact found that the icy conditions had affected a wide area). In any event, the Statement of Policy is, unsurprisingly, consistent with the approach taken in PA when it states that article 11(4)(b) is concerned only with the immediate environment in which the relevant activity is being carried out. The examples given – particularly the “unlighted environment” – support the view that it was wrong in the present case to consider, as the Secretary of State originally did, whether the whole of the headquarters building was hazardous. In the circumstances of this case, the focus needed to be on the steps. SM v Secretary of State for Defence (AFCS) [2017] UKUT 286 (AAC) CAF/2693/2016 14 42. Ms Ward submitted more generally that the 2011 Order should not be construed so as to place a duty on the Secretary of State to pay compensation in respect of accidents like the one in the present case and that a person who was not eligible for compensation under the 2011 Order could bring a civil claim for damages. She told me that the claimant in this case had in fact brought such a claim, which had been settled. That in my judgment is neither here nor there. The 2011 Order is clearly intended to provide a reasonably comprehensive no-fault scheme for those injured due to service. There are many cases in which a person slips, trips or falls due to hazards in respect of which no-one is liable to pay damages and it cannot be assumed that awards of damages will be more generous than awards under the 2011 Order. There are provisions to avoid double payment. The common law allows the amount of damages to be reduced if an award under the 2011 Order is made first and an award under the 2011 Order will be reduced under article 40 if an award of damages is made first. It is immaterial that there may in many cases have been no fault on the part of the Secretary of State or anyone else. 43. It is relevant that, by virtue of section 115(3) of the Social Security Contributions and Benefits Act 1992, members of the Armed Forces are expressly excluded from the civilian industrial injuries scheme which provides a no-fault scheme for those injured in the course of employment and it would, in my view, be surprising if the equivalent scheme for members of the Armed Forces were not to provide compensation in broadly similar circumstances to those covered by the civilian scheme although, of course, the benefits under the 2011 Order are very different to reflect the differences in the terms and conditions of service of servicemen. 44. I would take that view even without regard to the Armed Forces Covenant, but, in reply to Ms Ward’s argument, Mr Tucker referred to Part C of the Covenant, which “describes the expectations and aspirations implicit in the Armed Forces Covenant, but not the specific actions being taken to achieve them”, and of which Section 5 provides – “5. Benefits and Tax Members of the Armed Forces Community should have the same access to benefits as any UK citizen, except where tailored alternative schemes are in place. …” That seems to me to imply that any tailored alternative scheme will not be significantly disadvantageous by comparison to a civilian scheme without a good reason for the difference and so supports the approach that I have taken. As the Statement of Policy recognises, article 11(4) is not concerned only with the sort of hazards encountered in an operational or deployed zone. The 2011 Order has to do duty as an occupational injuries scheme, covering more mundane incidents such as the one in the present case. 45. In any event, even without having regard to these extra-statutory materials, I am satisfied that article 11(4)(b) applied in this case, so that article 11(3) did not have the effect of preventing benefit from being paid. SM v Secretary of State for Defence (AFCS) [2017] UKUT 286 (AAC) CAF/2693/2016 15 Article 8 46. It does not automatically follow from the fact that article 11(4) is satisfied that an injury can be regarded as caused by service for the purposes of article 8 although, as I have indicated and as Ms Ward accepted, that will often be the case because key considerations that are relevant under article 8 in a case involving slipping, tripping or falling are the same as those arising under article 11(4). I need not consider whether the exceptions to the other exclusions carry the same sort of implication. 47. Ms Ward pointed to the lengthy consideration in EW of article 7 of the 2005 Order, the precursor of article 8 of the 2011 Order, when arguing that this case ought to be remitted. However, the need to consider article 7 at length in that case arose partly because article 10 of the 2005 Order, the precursor of article 11 of the 2011 Order, was expressed in terms of inclusion, rather than exclusion, and partly because Judge Mesher considered it necessary to consider predominancy, which aspect of his decision was held to be wrong in JM at [123]. Unless there is something in the point that I mentioned above about the use of the words “by travel” rather than “while travelling”, it seems to me that a claimant in the same position as the claimant in EW would now find himself excluded from payment under article 11(1) and it would be unnecessary to consider article 8 at all in such a case. 48. However, while an injury caused by slipping and falling in circumstances within the scope of article 11(4) will normally be found to be due to service, article 8 raises at least two additional questions. 49. The first arises because article 11(4) applies if a person is participating in a relevant activity even if the relevant slip, trip or fall is not caused by that activity. If, although a claimant was exposed to a hazard in pursuance of a service obligation, a slip, trip or fall is not caused by that hazard, it may well be that any resulting injury will not be found to have been called by service for the purposes of article 8. However, this is not such a case. Here, the First-tier Tribunal found that the slip and fall were caused by the ice and the loose step. In those circumstances, the claimant’s injury was caused by the hazardous environment to which a service obligation exposed him and I can see no reason why, under article 8, service should not be regarded as a cause of the injury. 50. Secondly, there may be cases where there is another cause of the injury in addition to the service cause and so there will arise the question under article 8(2) whether the service cause is the predominant cause. In the light of JM, this will only arise if there is another process cause in the sense in which that phrase is used in that decision. In the absence of such another process cause, the injury should be found to have been wholly caused by service. There has been no suggestion so far of another cause of the injury in this case – e.g., something giving rise to a predisposition to injury – and, even if there were, it is unlikely to have been the predominant cause in the light of JM at [127] to [138]. However, I word my decision so as formally to leave this issue open, because I am not sure whether the Secretary SM v Secretary of State for Defence (AFCS) [2017] UKUT 286 (AAC) CAF/2693/2016 16 of State has yet looked at the medical evidence in the case and I have certainly not seen it. Conclusion 51. Subject to the point considered in paragraph 50 above, I am satisfied that the claimant’s injury in this case was wholly caused by service. 52. Thus, I am satisfied that, not only was the First-tier Tribunal’s decision wrong in law but also that the Secretary of State’s decision was wrong on the only issues that he decided and I re-make the decision on those issues. None of the other issues potentially arising on the claimant’s claim has yet been considered by either the Secretary of State or the First-tier Tribunal because, on their view of the law, it was unnecessary for them to do so. The Secretary of State must now consider those issues and the claimant will be able to bring another appeal to the First-tier Tribunal in the event of a disagreement. I accordingly give the decision set out above. Mark Rowland 10 July 2017
SN v Secretary of State for Defence (AFCS): [2018] UKUT 263 (AAC).
SN v Secretary of State for Defence (AFCS) [2018] UKUT 263 (AAC) CAF/1618/2017 1 IN THE UPPER TRIBUNAL Case No. CAF/1618/2017 ADMINISTRATIVE APPEALS CHAMBER Before Upper Tribunal Judge Rowland Decision: The claimant’s appeal is allowed. The decision of the First-tier Tribunal dated 28 February 2017 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 28 February 2017, whereby it confirmed the decision of the Secretary of State dated 15 June 2015 to the effect that the claimant was not entitled to benefit under the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011 (SI 2011/517) in respect of mental illness from which he was suffering. The legislation 2. Articles 8 and 9 of the 2011 Order provide – “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. Injury made worse by service 9.—(1) Subject to articles 11 and 12, benefit is payable to or in respect of a former member of the forces by reason of an injury made worse by service if the injury— (a) was sustained before the member entered service and was recorded in the report of the medical examination when the member entered service, (b) was sustained before the member entered service but without the member's knowledge and the injury was not found at that examination, or (c) arose during service but was not caused by service, and in each case service on or after 6th April 2005 was the predominant cause of the worsening of the injury. (2) Benefit is only payable under paragraph (1) if the injury has been worsened by service and remains worsened by service on— (i) the day on which the member's service ends; or (ii) the date of claim if that date is later. (3) Subject to paragraph (4), in the case of paragraph (1)(a) and (b), benefit is only payable if— (a) the member or former member was downgraded within the period of 5 years starting on the day on which the member entered service; (b) the downgrading lasted for a period of at least 6 months (except where the member was discharged on medical grounds within that period); (c) the member or former member remains continually downgraded until service ends; and (d) the worsening was the predominant cause of the downgrading. SN v Secretary of State for Defence (AFCS) [2018] UKUT 263 (AAC) CAF/1618/2017 2 (4) In the case of paragraph (1)(a) or (1)(b), benefit is not payable if the injury is worsened— (a) within 6 months of the day service commenced; or (b) 5 years or more after that day. (5) In the case of paragraph (1)(c), benefit is only payable if the member— (a) was downgraded within the period of 5 years starting on the day on which the member sustained the injury and remains continually downgraded until service ends; and (b) the worsening was the predominant cause of the downgrading.” Article 2(1) provides that “‘predominant’ means more than 50%”. The facts and the proceedings before the First-tier Tribunal 3. The Appellant joined the Army in May 2008. Initially, he served in the Scots Dragoon Guards but, in 2012, he transferred to Queen Alexandra’s Royal Army Nursing Corps. (He told me at the hearing of his application for permission to appeal that he had had experience as a care assistant before he joined the Army.) He showed signs of mental illness in 2013 and was admitted to hospital in Peterborough from 24 October to 12 December 2013, being subsequently admitted later in December 2013 to a hospital in Basingstoke and then to one in Staffordshire from where he was discharged to the care of community mental health services in February 2014. On 12 December 2013 he was downgraded by an Army medical board due to his mental health and, on 21 March 2014, another medical board recommended that he be discharged from the Army on medical grounds. On 21 May 2014, he claimed compensation under the 2011 Order on the ground that his mental illness had been caused by bullying in the Army. On 24 June 2014, the claim was rejected on the simple ground that the Appellant’s illness was not caused wholly or partly by service because “bullying and harassment is due to the actions of individuals rather than a factor of service life”. The appellant promptly appealed. He was medically discharged from the Army in November 2014. 4. On 15 June 2015, the Secretary of State reconsidered the original decision under article 53(5) of the 2011 Order but maintained it (doc 97-98). By then, the Secretary of State had decided that the approach he had been taking to bullying cases had been wrong. In relation to article 8 of the 2011 Order, he now said – “You have said that your depression and psychosis is caused by bullying. You say that the evidence of this bullying is well documented but you have not presented any of this evidence. You state you received treatment in three different hospitals; none of the three have any records relating to your attendance. There are a number of factors which may have caused or contributed to depression; you have longstanding back pain; you have been in dispute with your ex-wife, you have had financial problems and are separated from your children. On the balance of probabilities service is not the predominant cause.” In relation to article 9, he referred specifically to article 9(5)(b) and said – “You were downgraded on account of his mental health on 12 December 2013. You remained downgraded until discharge. You were downgraded because of the presence and nature of his [sic] condition. You were prevented from having access SN v Secretary of State for Defence (AFCS) [2018] UKUT 263 (AAC) CAF/1618/2017 3 to firearms for your own safety and that of others. You were not downgraded because service had made the condition worse.” 5. Unsurprisingly, the claimant protested about the statement that none of the hospitals had any record of him and he provided further details of each of his admissions. (It is not entirely clear what the Secretary of State had meant by his statement. It is true that two of the hospitals had replied to requests for medical notes made in April 2015 by saying that they had no record of the claimant, perhaps partly because the Secretary of State had given no indication as to when the claimant had been admitted to the hospitals and had provided the claimant’s current address without making it clear that his address when he was admitted was different. However, he had the claimant’s service medical records for the relevant period which had referred to each of the admissions and so the fact of the admissions cannot really have been in doubt.) The claimant also denied that there had been a nonservice cause of his mental illness, stating that he had had no financial problems, that the issues between him and his ex-wife and children “were already mutually resolved” and that back pain had not been an issue as he had been attending regular physiotherapy sessions for the six years of his career and the pain was managed by NSAIDs. 6. Four days before the reconsideration decision, the Upper Tribunal signed its decision in JM v Secretary of State for Defence (AFCS) [2015] UKUT 332 (AAC); [2016] AACR 3 (docs 100-117A in the present case file). In the light of that decision, the Secretary of State sought from the claimant further details of the allegations bullying, which he provided by first completing a form on 6 October 2015 and then replying on 6 November 2015 to some more specific questions (see docs 145 to 149). 7. The Secretary of State then purported to carry out a review under article 59 of the Order whereby he decided that the original decision should be maintained. However, with the consent of the First-tier Tribunal, he did not issue a formal decision which would have generated a separate right of appeal. That approach did not cause any injustice in this case and so I need not consider whether it was technically either permissible or necessary. In effect, the “Decision Lay Certificate” dated 11 March 2016 (doc 153) became the Secretary of State’s submission responding to the appeal. 8. In relation to Article 8 of the 2011 Order, it was now argued – “[The claimant] contends that his mental health problems are due to service, notably to harassing and bullying behaviour by a number of his peers. While the service medical records confirm a concern and a willingness to investigate the complaint [the claimant’s] condition has been such that only limited opportunity to investigate during his time in service was available. The fixation with the allegations – which are high level and non-specific – have been described by the Consultant Psychiatrist as delusional. Mental health disorders are always multifactorial. [The claimant] gives no pre-service history, but the service medical records confirm that from early in his service, he had many interactions with health professionals for mental health symptoms. Within these interactions there is a very clear relationship with domestic issues. These SN v Secretary of State for Defence (AFCS) [2018] UKUT 263 (AAC) CAF/1618/2017 4 include several wives/partners by whom he has had children, on-going issues with access and paternity, child protection issues and debt problems. As the synopses of causation for depression and schizophrenia show, depression has different types. These disorders are multifactorial with genetics important and possible both biochemical and anatomical change in the brain. In the case of schizophrenia it is really a disorder of unknown aetiology and not predominantly due to external stressors. The Secretary of State considers that there are clearly multiple stressors in his personal life as well as the alleged bullying and harassment in service. In paragraph 110 of [JM] the Judge recognised that ‘personal characteristics and factors that are not directly connected to service (such as … problems relating to his wife and child) may lead to banter and teasing amongst individuals living communally in close and regulated circumstances. It will be a question of fact and degree whether the teasing has crossed the line between servicemen having to learn to live with people who rub them the wrong way and bullying’. The evidence suggests that what [the claimant] describes as harassment, if in fact it did occur, would be more accurately described as banter by his peers with whom he was having to learn to live with. When pressed for specifics, [the claimant] displays a significant over reaction to what at most is a bit of simple verbal criticism. Therefore on a balance of probabilities the Secretary of State considers that [the claimant’s] depression and psychosis are not predominantly caused by service.” 9. The argument in respect of Article 9 remained the same, it being said – “[The claimant] was downgraded on account of his mental health on 12 Dec 13 and remained downgraded until his discharge. The reason for the downgrading was because of the innate nature of his illness and to prevent him having access to firearms, for his own safety and that of others. Therefore no benefit is payable by reason of worsening Article 9(4)(b).” I am not sure whether the reference to article 9(4)(b) was a mistake or not. It is possible that a reference to article 9(5)(b), to which specific reference had been made in the reconsideration decision, was intended. However, both provisions were potentially relevant. Article 9(4)(b) could be relied upon for the proposition that the claimant could not rely on worsening of a pre-service condition because he became ill more than 5 years after enlisting (although it seems an unnecessary provision given the combined effect of article 9(3)(a) and (d)) but article 9(5)(b) was the provision that required that service be the predominant cause of any worsening of a non-service condition arising in service. 10. In any event, the claimant provided comments on the documents supplied to the First-tier Tribunal by the Secretary of State and, in particular, provided a list of witnesses of the abuse and harassment that he alleged he had suffered (doc 163) and, in yet a further letter dated 6 November 2015 (docs 225, 227 and 228), some details of the allegations in which he said that named senior non-commissioned officers gave him no opportunity to progress and criticised him unfairly and he made it clear that his complaints were limited to what had been said in his workplace. SN v Secretary of State for Defence (AFCS) [2018] UKUT 263 (AAC) CAF/1618/2017 5 11. On 25 October 2016, the case came before the First-tier Tribunal. The claimant attended the hearing and was represented by the Royal British Legion. The Secretary of State was also represented. Both representatives sought an adjournment. However, it is clear from the record of the proceedings made by the members of the panel that the claimant himself did not want an adjournment. The First-tier Tribunal decided to adjourn saying – “The response is materially incomplete. Having regard to paragraph 39 and 142 of [JM] in particular, it is in the interests of justice that the appeal is adjourned to allow production of further evidence relating to the bullying and harassment allegations by the appellant.” The First-tier Tribunal also issued directions, requiring the Respondent to trace the witnesses identified by the claimant and to forward to them any requests from the claimant for witness statements, to obtain medical records from the three hospitals to which the claimant had been admitted, to apply for the claimant’s “P file”, to submit a supplementary response by 24 January 2017 to include the documents that it had obtained, including some that the claimant was to provide, and to submit a medical advisor’s opinion by 24 February 2017. (I observe that paragraphs [39] to [45] and [142] of JM might be thought to suggest that what was required first was a witness statement, or oral evidence, from the claimant himself, rather than the tracing of other potential witnesses.) 12. Unfortunately, but perhaps not surprisingly given what had happened at the hearing, the claimant then decided to dispense with the services of the Royal British Legion and he demanded that a decision in his case be made by the end of the year (docs 603 to 604). The First-tier Tribunal told him that he could ask for the case to be decided on the papers but there would inevitably be some delay while the Secretary of State obtained the relevant evidence. It also told him to send to it his requests for witness statements (doc 605). There was then a series of email exchanges between the First-tier Tribunal and the claimant in the course of which the claimant said that he was “terminating” his case but demanded a “verdict” (doc 614). He did not provide the Secretary of State with the requests for witness statements or the other documents that he had been asked to provide and he also did not send them to the First-tier Tribunal. The First-tier Tribunal interpreted the claimant’s email correspondence as an indication that he did not wish to attend a hearing but, for reasons that are not entirely clear, appears to have decided before it had received the Secretary of State’s response to its directions that the case should be decided on the papers unless the Secretary of State particularly wanted a hearing, which he did not. Having somewhat belatedly received from the Secretary of State the documents that it had directed him to provide, amounting to some 250 pages, but being satisfied that the claimant had received those documents earlier, the First-tier Tribunal proceeded to determine the appeal on the papers and dismissed it. 13. It did so on the basis that there was no substance in the claimant’s allegations of bullying and that his perception that there had been bullying was the result of paranoia. It found that his “mental health problems had a number of causes”, none of which was connected with service although, having considered the medical evidence in some detail, it had identified one stressor as being his feeling that he had been victimised at work and that seniors had been overcritical. It said – SN v Secretary of State for Defence (AFCS) [2018] UKUT 263 (AAC) CAF/1618/2017 6 “16. The Tribunal assessed whether this expression of victimisation was in fact bullying or was a disordered perception of reasonable behaviour by those he worked with including his superiors. The Tribunal concluded that the feeling that he had been victimised at work was part of his paranoia. That [the claimant] had completely overreacted to instructions given to him at work is shown by his various references to how he would hurt, torture and kill these three female colleagues. … All of these assessments conclude that [the claimant’s] expressions of feeling victimised by his work and the colleagues he worked with as a Health Care Assistant were based on paranoia and had no factual basis. …”. 14. At the end of its very full statement of reasons, it explained its decision as follows – “19 The reason the Respondent decided to refuse [the claimant’s] claim is that the Respondent determined that his illnesses were not caused, or not predominantly caused by service in accordance with Article 8 of the AFCS. The Tribunal considered this Article and agreed with the Respondent. There was no cause or causes including causes acting as a process which led to [the claimant’s] mental health condition. 20. Under Article 8(2) of the AFCS where injury is partly caused by service benefit is payable if service is the predominant cause of the injury. The Tribunal followed the staged approach set out below as summarised at paragraph 145 of the decision of the Upper Tribunal (Administrative Appeals Chamber) [2016] AACR 3 (JM v SSD) (Three-judge Panel) in coming to this conclusion. The Tribunal found that none of the causes were service causes so the predominance test did not apply. [The claimant’s} mental health problems had a number of causes. These were not connected with service. 21. [The claimant’s] mental health problems were not made worse by service. He was downgraded on account of his mental health on 12 December 2013 and remained downgraded until his discharge on 30 November 2014. During this period whilst he was downgraded he continued to receive appropriate and caring treatment given by the Army for his mental health. He was given necessary support and help. He was downgraded to protect not only him, but to protect work colleagues. He was not able to work in any capacity as he was a risk to himself and others. 22. [The claimant’s] service did not cause psychosis with depression. It was caused by maltreatment during childhood, relationship breakdown with his wife which had led to personal debt and dispute over access to his children, an ongoing dispute regarding paternity, reliance on alcohol to deal with the stressors, an inability to accept female leadership when in a changed role and possibly other cultural influences as noted by Dr Perry. Further the allegations of victimisation in themselves are a result of paranoia. He directed his paranoia in other directions, including to the ward staff who were caring for him following his admission to hospital who he claimed victimised him. There is no evidence that he reported that he was being victimised or bullied either in his medical records or at his appraisal or to other vehicles of reporting which are available in the Army. …” The proceedings before the Upper Tribunal 15. The First-tier Tribunal having refused the claimant permission to appeal, the claimant applied to the Upper Tribunal for permission to appeal and I granted his request for an oral hearing of the application. He appeared before me in person. SN v Secretary of State for Defence (AFCS) [2018] UKUT 263 (AAC) CAF/1618/2017 7 The Secretary of State, quite properly, neither attended the hearing nor was represented. I did not accept all of the claimant’s arguments but I decided to give permission to appeal. 16. I recorded that the claimant had told me he was unwell and was receiving treatment at the time of the First-tier Tribunal’s decision and during the period leading up to it when he was representing himself but pointed out that he had not produced any evidence from those treating him that he had not been capable of conducting his case and that there was a difference between, on one hand, merely being unwell and acting unwisely and, on the other hand, lacking the capacity to conduct litigation. I also explained why I did not consider JSP 763, The MOD Bullying and Harassment Complaints Procedures, on which the claimant placed a great deal of weight, to be of significant relevance. I adhere to that view and need not repeat here my reasons. However, I gave permission to appeal on the ground that it was arguable that the First-tier Tribunal had failed adequately to analyse the evidence before it in the light of the legislation. I said – “6. As regards article 8 of the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011 (SI 2011/517), the First-tier Tribunal found that there were a number of causes of the claimant’s mental health problems, including, first, his childhood experiences, secondly, what were clearly non-service triggers during service but related to his personal life and, thirdly and most importantly, his perception of being bullied or victimised at work by female non-commissioned officers. It found that he had not in fact been bullied or victimised but it appears to have accepted that he felt that he had been. What it did not do, but arguably ought to have done, was make a finding as to whether he had over-reacted to actual criticism and the imposition of punishments by non-commissioned officers exercising their authority over him when he was working or whether there had been no criticisms or punishments at all and the claimant had merely imagined them. If, which currently seems to me to be more likely, it was the former, then it is arguable that the criticisms and punishments were a service cause of his mental illness even if they were reasonable, in which case the real question for the First-tier Tribunal was whether they were the predominant cause. However, notwithstanding that the Scheme is a “no-fault” scheme, it may be arguable that whether any criticisms and punishments were reasonable or amounted to bullying or victimisation might be a relevant issue when considering the predominancy test. 7. As to worsening under article 9, the Secretary of State’s submissions to the First-tier Tribunal were arguably misconceived and the question whether article 9 applied, rather than article 8, depended on how the claimant’s “mental health problems” were analysed. If a condition arises due to several causes and is not then worsened by another cause, it seems to me that only article 8 applies. If a condition arises due predominantly to non-service causes and then is worsened by predominantly service causes, it seems to me that only article 9 applies. 8. Although the claimant might have had a personality disorder before he joined the Army, there does not appear to be any evidence of it giving rise to mental illness until late 2013. It seems to me that it was the illness that materialised in late 2013 that was the “injury” in respect of which benefit was claimed in this case. This analysis is arguably reinforced by article 9(4)(b) which has the effect in this case that worsening in late 2013 of a pre-service injury within the scope of article 9(1)(a) or (b) could not give rise to entitlement to benefit because it would have been arisen more than 5 years after the day service commenced. The explanation for that provision SN v Secretary of State for Defence (AFCS) [2018] UKUT 263 (AAC) CAF/1618/2017 8 appears to be that “[w]here an individual has an existing injury when they enter service, it is considered medically reasonable that if there is no further injury and clinically the injury does not worsen within five years of starting service, then any subsequent worsening cannot be considered to be caused by service” (paragraph 2.18 of JSP 765). Article 9(4)(b) was mentioned on doc 583, but in connection with the reasons for downgrading, which I would suggest are irrelevant. 9. Article 9(1)(c) would appear to have applied only if a mental illness developed during service from non-service causes and then was made worse by service. Neither party argued that that was the position here and it could arise only if the Firsttier Tribunal made the necessary findings of fact in relation to the claimant’s mental health problems. The explanation for the downgrading given in paragraph 21 of the First-tier Tribunal’s decision seems totally irrelevant to the question whether there was worsening. Only the first sentence of that paragraph seems necessary and arguably that would have been sufficient if the First-tier Tribunal was entitled to find that none of the causes of the claimant’s mental health problems was a service cause.” 17. The Secretary of State’s response to the appeal summarised the background, the First-tier Tribunal’s decision and my observations and concluded – “16. The Respondent considers, having regard to the Application, the Tribunal’s Reasons for Decision and Judge Rowland’s Judgements and case management Directions that this matter should be remitted to a fresh tribunal which could be instructed to provide full reasoning for its decision.” I take that to be an expression of broad agreement with my observations and an acceptance that the First-tier Tribunal erred in law for the reasons I had suggested. The claimant has not replied to the response. Neither party has asked for an oral hearing. General observations on the law 18. In these circumstances, I can be fairly brief in this decision but I ought to enlarge slightly on the observations I made when giving permission to appeal in order to make them clearer. I will do so by making four general observations on the law, suggesting the implications they have for this case. 19. First, because “benefit for injury is payable only in respect of an injury for which there is a descriptor” (article 16(1)(a)), the injury in respect of which benefit is claimed when mental illness is the basis of the claim must be an injury within Table 3 of Schedule 3 to the 2011 Order, which lists “mental disorders”, each of which is described in terms of the extent to which, and time for which, it causes “functional limitation or restriction”. (The term “descriptor” is defined in article 2(1) and provision is made in article 5 for the interpretation of descriptors, including a definition of “functional limitation or restriction”.) 20. Secondly, any injury sustained more than five years after the commencement of service cannot be regarded as a worsening of a pre-service injury and so must be regarded as a separate injury. This follows from the terms of article 9, under which a pre-service injury cannot be said to have been worsened more than five years after the commencement of service. The Secretary of State’s explanation for the drafting SN v Secretary of State for Defence (AFCS) [2018] UKUT 263 (AAC) CAF/1618/2017 9 of article 9 is that, “[w]here an individual has an existing injury when they enter service, it is considered medically reasonable that if there is no further injury and clinically the injury does not worsen within five years of starting service, then any subsequent worsening cannot be considered to be caused by service” (JSP 765, Armed Forces Compensation Scheme Statement of Policy, para.2.18). For a similar reason, an injury occurring more than five years after a non-service injury sustained during service must be regarded as a separate injury and not the result of a worsening of the non-service injury. I do not consider that it matters whether or not this analysis is the one that doctors would normally accept in a particular case; it is workable and it is required as a matter of law in order to avoid a gap in the scheme of compensation that cannot possibly have been intended. 21. It does not follow that the earlier injury is irrelevant when considering a claim in respect of the later injury, because the earlier one may be regarded as a cause of the later one when the case is considered under article 8. Indeed, it may be unnecessary in practice to decide which of articles 8 and 9 applies in a particular case. This is because, in many cases where both non-service causes and service causes contribute to a mental disorder causing functional limitation or restriction, the same result may be reached whether the non-service causes and service cause combined to cause the condition or whether the non-service causes caused the condition and service worsened it. In the former case, benefit will be payable only if the service cause was the predominant cause of the injury (article 8(2)). In the latter case, benefit will be payable only if service was the predominant cause of worsening (article 9(1)) and that in turn was the predominant cause of downgrading (article 9(3)(d) or (5)(b)). Thus, where a service contribution to an injury is found to be predominant or if it is found that service is not a contributor at all, the result will inevitably be the same on either analysis. But it is possible to envisage a case where service is not the predominant contributor to an injury and so could not be the predominant cause but could be the predominant cause of worsening that has been the predominant cause of downgrading. In such a case, article 9 acts to mitigate the effect of the predominancy test in article 8(2). 22. Thirdly, although an underlying condition or previous injury may be a cause of a later injury, in a case where there is a more proximate service cause it will be necessary to determine which is the predominant cause for the purpose of article 8(2) and so the causative potency of each cause will have to be considered. Some consideration was given to this issue in JM at [132], where the three-judge panel said that it did not see “any sign that the intention behind the AFCS is to deprive those with constitutional weakness from the protection usually regarded as appropriate in other compensation schemes, that is to say the ‘thin skull’ approach”. 23. Fourthly, because this is a no-fault scheme (as to which, see SM v Secretary of State for Defence (AFCS) [2017] UKUT 286 (AAC) at [42] to [44]), a mental disorder caused by stresses at work in the Armed Forces may be caused by service even if no-one behaved improperly towards the claimant. Service may, of course, merely be the setting in which an injury occurs, but the question whether a person has been subjected to inappropriate behaviour is not determinative of that issue. The only reason that, when giving permission to appeal, I suggested that it was arguable that it might matter whether any criticisms and punishments were reasonable or amounted to bullying or victimisation when considering the SN v Secretary of State for Defence (AFCS) [2018] UKUT 263 (AAC) CAF/1618/2017 10 predominancy test is that the nature of the criticisms and punishments might, as a matter of fact rather than as a matter of law, have a bearing on the degree of stress suffered by the claimant and so might be a factor to be taken into account when assessing the relative causative potency of service and non-service causes (and, indeed, it might be a factor in determining whether service caused any stress at all). Applying the law in this case 24. It follows from the first two of those observations that the “injury” in respect of which the claim was made in this case was the mental disorder that manifested itself while the claimant was in the Army, rather than any underlying condition or preexisting disorder. 25. There was potentially a question whether any underlying personality defect or the effect of abuse suffered in childhood could be regarded as a cause of the mental disorder manifesting itself in 2013 and if so, the potency of its causative effect by comparison with more contemporaneous causes. Whether it was necessary to answer that question depended on whether any of the more contemporaneous causes was a service cause. The First-tier Tribunal found that none of them was. 26. Plainly it was right about most of the causes it identified but, in paragraph 22 of its decision, the First-tier Tribunal included “an inability to accept female leadership when in a changed role” as one cause of the claimant’s mental illness and in paragraph 16, it had referred to an over-reaction to instructions (a point I appear not fully to have appreciated when I gave permission to appeal and suggested that it had not made a finding on the issue). Non-commissioned officers exercised authority over the claimant in this case because the claimant was a private soldier and, to the extent that the exercise of that authority may have been a relevant stressor leading to the development of the injury, it seems to me that service must have been a cause of the injury since those interactions with colleagues were made necessary by the claimant’s service in the Army. 27. On the other hand, there was clearly an issue, given the other near contemporaneous causes identified, as to whether service was the predominant cause of the injury (if the case required consideration under article 8 – see article 8(2)) or of a worsening of an injury (if the case required consideration under article 9 – see the closing words of article 9(1)). If it was the predominant cause of a worsening, there was the further question whether that worsening was the predominant cause of the downgrading (see article 9(5)(b)). These issues of predominancy were, in my judgment, really the central area of dispute in this case. Clearly, there was not a great deal of evidence as to exactly what had been said to whom and in what context and I certainly accept that, there being obvious nonservice causes of the injury, the First-tier Tribunal might have been entitled to find that any service cause was not the predominant cause of the injury without necessarily being precise about what exactly had occurred. But that is not how the First-tier Tribunal reasoned. It expressly said that predominancy was not in issue because it did not regard any of the causes as being a service cause. 28. That, in my judgment was wrong. This case was, in some respects, like JM, where the claimant suffered depression that he said was due to service but where SN v Secretary of State for Defence (AFCS) [2018] UKUT 263 (AAC) CAF/1618/2017 11 there was also evidence of non-service causes and so, if it was accepted that there were both service and non-service causes, it would have been necessary for the First-tier Tribunal to consider the relative potency of those causes. The same weighing of the various causes was required in this case. 29. It is for that reason that I find that the First-tier Tribunal erred in law. 30. I also consider that the First-tier Tribunal erred in at least partly adopting, in paragraph 21 of its statement of reasons, the Secretary of State’s faulty reasoning in his various submissions in relation to article 9. The fact that the claimant was downgraded for the safety of himself or others would not prevent the claimant from succeeding under article 9 if the reason for the concern about safety was a worsening of a non-service injury. However, because the first sentence of paragraph 21 of the statement of reasons would have been sufficient against the background of the finding that there was no service contribution to the injury, I do not regard the error in the rest of the paragraph to be a material error of law in itself. On the other hand, the error in the reasoning for finding there to be no service cause obviously affects the First-tier Tribunal’s decision in relation to article 9 as it does in relation to article 8. 31. As I suggested in paragraph 7 of my reasons for giving permission to appeal, articles 8 and 9 are alternatives. If a condition arises due to several causes and is not then worsened by another cause, only article 8 applies. If a condition arises due predominantly to non-service causes but is worsened by predominantly service causes and that worsening is then the predominant cause of downgrading within the relevant period of five years, only article 9 applies. Often, it will be obvious under which article a case should be determined, but sometimes it will depend on what findings of fact are made. Thus, in the present case, article 9(1)(a) and (b) clearly could not apply because the claimant was not downgraded until he had been in the Army for more than five years (see article 9(3)(a)). However, this case would fall to be determined under article 9(1)(c), rather than article 8, if it were found that the claimant had been suffering from a mental disorder causing functional limitation or restriction due to non-service causes while in service and that service had worsened it. That is neither party’s primary case but, if there were more detailed findings of fact than were probably possible on the evidence before the First-tier Tribunal when deciding the case on the papers, the timing of non-service and service causes of a mental disorder and the timing and pattern of the development of symptoms might have suggested such a conclusion. On the other hand, for reasons I have given in paragraph 21 above, it is unnecessary in practice for the Secretary of State or the First-tier Tribunal to consider a case in such detail for the purpose of deciding which of articles 8 and 9 applies if he or it is confident that the same result would be obtained on either analysis. Conclusion 32. Because I have found the First-tier Tribunal to have erred in law, I set its decision aside. I do not consider that I ought to remake this decision myself on the basis of the findings made by the First-tier Tribunal, particularly as the Secretary of State’s submission that the case should be remitted may have contributed to the claimant’s lack of response to this appeal. Medical expertise may be desirable, SN v Secretary of State for Defence (AFCS) [2018] UKUT 263 (AAC) CAF/1618/2017 12 given the nature of the issues in the case and the analysis of causation that is required, and I also bear in mind the claimant’s apparent health when he decided in late 2016 and early 2017 that he did not wish to appear before the First-tier Tribunal. As I observed when giving permission to appeal, the tone of his emails between 14 November 2016 and 5 December 2017 might be thought to be very different from those both before and after that period. However, the claimant should not assume that, because he has been successful on this appeal, he will necessarily be successful when the First-tier Tribunal reconsiders his case. He may therefore wish to seek assistance from the Royal British Legion again, or from a similar organisation, in preparing and presenting his case. Mark Rowland 30 July 2018
NH v Secretary of State for Defence (AFCS): [2018] UKUT 217 (AAC)
NH v Secretary of State for Defence (No.2) (AFCS) [2018] UKUT 217 (AAC) CAF/942/2017 1 IN THE UPPER TRIBUNAL Case No. CAF/942/2017 ADMINISTRATIVE APPEALS CHAMBER Before Upper Tribunal Judge Rowland Attendances: The Appellant was represented by her husband. The Respondent was represented by Mr Adam Heppinstall of counsel, instructed by the Government Legal Department. Decision: The claimant’s appeal is dismissed. REASONS FOR DECISION 1. This is an appeal, brought by the claimant with my permission, against a decision of the First-tier Tribunal dated 25 January 2017, whereby it struck out her appeal against a decision of the Secretary of State in respect of awards under the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011 (SI 2011/517) (“the 2011 Order”) of a lump sum of £15,500 and a guaranteed income payment (“GIP”) of £1,250.20 per year from 21 January 2016. The facts and procedural history 2. The claimant was an officer in the Army from 2000 until she was medically discharged on 2 May 2012. She had then been ill for some time, suffering from various conditions including chronic fatigue syndrome, and had been off work altogether from May 2009 until her discharge. It is not necessary to set out the underlying facts in more detail than that but it is necessary to set out the procedural history of her claim under the 2011 Order and, later in this decision, I will also mention related decisions made under the Naval, Military and Air Forces etc (Disablement and Death) Service Pensions Order 2006 (SI 2006/606) (“the 2006 Order”). 3. The claimant’s claim for benefit under the 2011 Order was received by the Secretary of State on 5 July 2011. It was initially rejected by the Secretary of State on the ground that service since 6 April 2005 was neither the predominant cause of any of her conditions so as to make benefit payable under article 8 nor the predominant cause of any worsening of a condition so as to make benefit payable under article 9. The claimant’s appeal was at first dismissed by the First-tier Tribunal but I set that decision aside and remitted the case to the First-tier Tribunal (NH v Secretary of State for Defence (WP & AFCS) [2015] UKUT 35 (AAC)). It heard the appeal on 20 and 21 January 2016. In a reserved decision dated 7 March 2016, the First-tier Tribunal decided (a) that the claimant’s chronic fatigue syndrome had developed in late 2007, (b) that, although it was not predominantly caused by service so as to make benefit payable under article 8, service had been the predominant cause of a worsening of that condition from about the end of January 2009 and (c) NH v Secretary of State for Defence (No.2) (AFCS) [2018] UKUT 217 (AAC) CAF/942/2017 2 that, although the claimant had already been downgraded before then, the worsening had in turn been the predominant cause of the claimant being further downgraded from October 2009 until her discharge. 4. On 28 July 2016, the claimant’s husband wrote to Sir Michael Fallon MP, then the Secretary of State for Defence, complaining that the decision of the First-tier Tribunal had not been implemented. He copied his letter to his Member of Parliament (who was, of course, also the claimant’s Member of Parliament) and the Head of Veterans UK, who administer the Armed Forces Compensation Scheme on behalf of the Secretary of State. His Member of Parliament wrote a letter to the Secretary of State on the following day. 5. On 1 August 2016, Veterans UK informed the claimant that it had been decided that she would “receive a lump sum payment of £15,500 as an interim award which will be reviewed in 18 months” and a GIP from 21 January 2016 at the rate of £1,250.20 per year. 6. Provision for interim awards is made by article 52 of the 2011 Order, which provides – “52.—(1) An interim award may be made where the Secretary of State is satisfied that a person is entitled to injury benefit but— (a) the prognosis for the injury in that particular case is uncertain; and (b) it is not possible to determine which descriptor is applicable to it. (2) The Secretary of State is to select the descriptor considered to be the most appropriate descriptor at the date of the decision. (3) The Secretary of State must specify the period which the interim award has effect in accordance with paragraphs (4) and (5). (4) The period referred to in paragraph (3) is to be a maximum of 2 years starting from the date the award was first made. (5) Where the period specified 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. (6) Where paragraph (7) applies— (a) the interim award may be extended and further extended for a period not exceeding 2 years; and (b) a final award must be made within the period of 4 years starting with the date on which an interim award was first made. (7) This paragraph applies where— (a) the prognosis remains uncertain at the end of the initial 2 year period; and (b) the Secretary of State considers the extension just and equitable having regard to all the circumstances of the case. (8) Where the final decision is to award a descriptor at a tariff level which is— (a) at the same level or higher than the tariff level awarded in the interim award, account is to be taken of the amount of benefit paid in accordance with the interim award and only the difference between the amount of benefit paid in accordance with the interim award and the amount of the final decision is payable; (b) lower than the tariff level of the tariff awarded in the interim award, no further amount of benefit will be paid in accordance with the final decision, and no amount of benefit paid in accordance with the interim award is recoverable.” NH v Secretary of State for Defence (No.2) (AFCS) [2018] UKUT 217 (AAC) CAF/942/2017 3 By virtue of article 2(1), “injury benefit” means “a lump sum, a supplementary award and guaranteed income payment”. 7. The lump sum awarded was at tariff level 11 (see Table 10 of Schedule 3 as in force at the date of claim) and so the claimant was eligible for GIP under article 24. She was told that she did not have a right of appeal against the decision to make an interim award of a lump sum but that she did have a right of appeal against the decision awarding GIP. 8. On 7 August 2016, the claimant’s husband wrote again to Sir Michael Fallon MP, saying that his wife had now been notified of the decision and arguing that the decision was wrong insofar as the lump sum award was made at tariff level 11, the GIP was awarded only from 21 January 2016 and the award was only interim. His letter was headed “Application for Review …”. Again, he copied his letter to his Member of Parliament and to the head of Veterans UK. 9. On 12 September 2016, the Parliamentary Under Secretary of State and Minister for Defence Veterans, Reserves and Personnel wrote to the claimant’s Member of Parliament in reply to her letter to the Secretary of State, saying that he was also taking into account the points raised in the claimant’s husband’s second letter. In his letter, the Minister explained the decision given on 1 August 2016 and the delay in making it and he also addressed some other points that the claimant’s husband had made. 10. Meanwhile the claimant’s husband’s first letter of 28 July 2016 had been forwarded to Defence Business Services who wrote to him by email on 27 September 2016, sending him a copy of the Minister’s letter of 12 September 2016 and telling him that his “formal complaint” had been referred to the Veterans UK Customer Services Team. 11. On the following day, 28 September 2016, the claimant’s husband submitted, by an email to Veterans UK, an appeal by the claimant. In the email, he identified the decision being challenged as the Minister’s letter of 12 September 2016. 12. On 10 October 2016, Veterans UK wrote to the claimant saying that, “[o]n 7 August you asked us to carry out an Ignorance or Mistake Review of the Armed Forces Compensation Scheme (AFCS) decision notified to you on 1 August 2016” and that the Secretary of State was not satisfied that there were grounds for review. (An identical letter was sent four days later and the claimant’s husband told me that there had also been a third. Mr Heppinstall said that he had come across the phenomenon of multiple decisions before.) 13. On or about 19 October 2016, the First-tier Tribunal received from Veterans UK a bundle of documents and a request, headed “Request for Tribunal Direction”, that the claimant’s appeal be struck out under rule 8(2)(a) of the Tribunal Procedure (First-tier Tribunal) (War Pensions and Armed Forces Compensation Chamber) Rules 2008 (SI 2008/2686) on the ground that there was no right of appeal against an interim award and so the First-tier Tribunal had no jurisdiction to hear the appeal. NH v Secretary of State for Defence (No.2) (AFCS) [2018] UKUT 217 (AAC) CAF/942/2017 4 14. In his request, the Secretary of State referred to the decision notified on 1 August 2016 as “the revised decision”, presumably having in mind the earlier decision against which the First-tier Tribunal had allowed the appeal. Oddly, although he referred to articles 52 and 53 of the 2011 Order, the Secretary of State did not make any specific reference to the legislation governing rights of appeal which was obviously material to his application. 15. The relevant provisions are section 5A of the Pensions Appeal Tribunals Act 1943, which provides for an appeal against a “specified decision”, and regulation 3 of the Pensions Appeal Tribunals Act 1943 (Armed Forces and Reserve Forces Compensation Scheme) (Rights of Appeal) Regulations 2011 (SI 2011/1240) (“the 2011 Regulations”), which provides – “Specified decisions capable of appeal 3.—(1) Subject to paragraph (2), the following decisions are specified for the purposes of section 5A(2) of the Pensions Appeal Tribunals Act 1943, that is a decision which— (a) determines whether a benefit is payable; (b) determines the amount payable under an award of benefit; and (c) is issued under article 26(6) (refusal to make a temporary award permanent etc.) or 26(8) (addition of new descriptor) of the 2011 Order, relating to the making of a permanent award. (2) 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; (b) suspends the payment of an award of benefit; (c) makes or arises from the making of a temporary award under article 26(2) of the 2011 Order; (d) determines whether a fast payment is made under article 27(1) of the 2011 Order; (e) relates to the payment, in whole or in part, of medical expenses under article 28(1) of the 2011 Order.” By virtue of regulation 2, “benefit” means “a benefit payable under the 2011 Order”. 16. Among the documents accompanying the “Request for Tribunal Direction” was a "comment" inviting the First-tier Tribunal also to consider striking the case out under rule 8(3)(c) on the ground that it had no prospect of success because the letter from the Minister dated 12 September 2016 was not notification of a decision. 17. Veterans UK sent the claimant’s husband a copy of the request that the appeal be struck out but not the accompanying documents. Therefore, on 26 October 2016, the claimant’s husband sent an email to the First-tier Tribunal, saying that he had not received all the documents and opposing the request for the striking out of the appeal on the ground that the appeal was not against an interim award but against the outcome of a review under article 59 of the 2011 Order notified in the Minister’s letter of 12 September 2016. The First-tier Tribunal sought further comments from the Secretary of State, which were sent on 15 December 2016. NH v Secretary of State for Defence (No.2) (AFCS) [2018] UKUT 217 (AAC) CAF/942/2017 5 18. On 25 January 2017, a judge of the First-tier Tribunal struck the appeal out the appeal on the ground that the First-tier Tribunal had no jurisdiction to hear the appeal. She referred to regulation 3 of the 2011 Regulations and said – “7. … the making of the interim decision cannot be appealed nor anything ‘arising out of’ that decision which includes the tariff level and the commencement date of the GIP. 8. The question of the commencement date is not only excluded as above, but is also not included in regulation 3(1)(a) – whether a benefit is payable or (b) determines the amount payable under an award of benefit. 9. The decision of the SoS dated 1/8/2016 is made as a result of implementing the Tribunal decision, and, as such, cannot be a review decision falling within articles 55-59 and is expressly excluded as a reconsideration decision by article 53(2)(d).” She also rejected the claimant’s submission that the Minister’s letter of 12 September 2016 amounted to a decision under the 2011 Order against which he could appeal. 19. The claimant applied for permission to appeal. The First-tier Tribunal refused permission but I granted it, saying that, while I had doubts about the prospects of success of the appeal, it raised issues that merited consideration by the Upper Tribunal. The Secretary of State resists the appeal but accepts that there are respects in which the First-tier Tribunal erred. 20. I understand that, while the appeal has been pending, the period of the interim award has been extended to two years under article 52(5). Failure to provide the claimant with documents 21. One of the claimant’s grounds of appeal is that her husband was never provided with all the documents that were before the First-tier Tribunal. This ground has become academic because he now has all the documents and the case turns entirely on points of law that can be argued before me in the light of the documents. I have therefore not investigated what happened. It is possible that there was an isolated error. If not, there may be a need for Veterans UK and the First-tier Tribunal to reach an agreement as to which of them should provide documents to a claimant where the Secretary of State makes an application for an appeal to be struck out. The nature of the decision notified on 1 August 2016 22. It is common ground that the First-tier Tribunal was correct to say that the decision notified on 1 August 2016 was not made either on review or on reconsideration. It follows that the Secretary of State had been wrong to describe it as a “revised decision” in its request for the striking out. However, article 53(2)(d) was not the reason that the decision had not been given on reconsideration and, as the Secretary of State accepts, the First-tier Tribunal was, strictly speaking, wrong to say that the decision was “made as a result of implementing” the decision of the First- NH v Secretary of State for Defence (No.2) (AFCS) [2018] UKUT 217 (AAC) CAF/942/2017 6 tier Tribunal given on 7 March 2016. It would have been better to say that it was made in consequence of the First-tier Tribunal’s decision. 23. The distinction is important. This was not a case where the First-tier Tribunal had awarded benefit but had left the Secretary of State to do an arithmetical calculation or check the amount appropriate at a date that it had identified to a tariff level that it had also identified. Leaving the Secretary of State to complete a decision in such a way is perfectly appropriate, provided that the parties are told that they may refer any dispute back to the tribunal (see R(SB) 11/86, decided in relation to the civilian social security scheme). 24. Here, however, the First-tier Tribunal’s decision no doubt had the effect that the claimant would be entitled to an award but the First-tier Tribunal had not purported to make an award itself. That was left to the Secretary of State, who had to make a separate decision that was the initial decision on that question. As Mr Heppinstall put it, although the 2011 Order appears to anticipate that there will be a single decision awarding or refusing benefit, on a detailed analysis of what is really involved such a decision is made up of a number of decisions on separate issues and not every imaginable issue needs determining in every case. Thus, to take a common example, which indeed is what occurred here, if the Secretary of State decides that a condition has been neither caused nor worsened by service, it is not necessary for him to consider the size of the lump sum appropriate to the condition. If, an appeal is allowed in such a case, it becomes necessary for the first time to decide what lump sum should be awarded. Having allowed the appeal on the original issue, the First-tier Tribunal is entitled to make that new decision on the issue that now arises for the first time, but will often not be able to do so either because it will not have the relevant evidence before it or because neither party is ready to make representations on the issue. As long as it deals with all the issues that arose on the original appeal, it is therefore equally entitled to leave such a new issue to be decided for the first time by the Secretary of State. In the event of a dispute as regards the Secretary of State’s decision on that new issue, a fresh appeal will be necessary. In deciding whether to leave issues to the Secretary of State, a pragmatic approach should be taken, having regard to the views of both parties (see R(IS) 2/08, again decided in the context of the civilian social security scheme). Identifying the decision under appeal in this case 25. The Secretary of State submits that the only decision against which the claimant could have appealed was that notified to her on 1 August 2016. However, her husband recognises that, insofar as that was an interim award, no appeal lies against it. It was for that reason that he identified the Minister’s letter of 12 September 2016 as the relevant decision, which he submits was a refusal to review the decision of 1 August 2016 and was appealable. The Secretary of State submits that the letter of 12 September 2016 was not notification of a separate decision, pointing out that it did not comply with the requirements specified in article 51(3)(b) and (c) of the 2011 Order because it was not given or sent to the claimant herself and it did not inform her of any right to reconsideration or appeal. The claimant’s husband replies that a decision may be defective but nonetheless be a decision. NH v Secretary of State for Defence (No.2) (AFCS) [2018] UKUT 217 (AAC) CAF/942/2017 7 26. I accept that a failure to comply with the requirements of article 51(2) or (3) does not necessarily show that no decision has been made. Nonetheless, I am satisfied that the First-tier Tribunal did not err in law in holding that the letter of 12 September 2016 was not a decision or notice of a decision. In my judgment, it was plainly an explanation for the benefit of the claimant’s Member of Parliament of the decision of 1 August 2016. It is true that the intellectual process gone through to explain a decision that has already been made is similar to that involved in considering whether to review a decision and deciding not to do so and I think that that is why Mr Heppinstall suggested that it was understandable that the claimant’s husband should have thought the letter was a refusal to review. However, there is a conceptual difference between giving reasons for a decision and refusing to review it and I consider it obvious that the letter was not intended to be a decision or notification of a decision. First, it would be extraordinary for a decision to be conveyed to a claimant in the roundabout way in which that letter reached her. Secondly, there is an established process for issuing decisions and not only did that letter not conform to it but, whether prompted by the appeal or merely as a result of a copy of the letter having been sent to Veterans UK, Veterans UK did eventually treat the letter of 7 August 2016 addressed to Sir Michael Fallon MP as an application for review and a decision in the conventional form was issued on 10 October 2016. 27. If the claimant wished to appeal against the refusal to review, that decision of 10 October 2016 was the decision that needed to be challenged. Given that the claimant’s husband had, in his email of 26 October 2016, made it plain that she wished to appeal against the refusal to review the decision of 1 August 2016, it seems to me that the First-tier Tribunal ought to have treated her as having appealed against the decision of 10 October 2016 as well as, or instead of, the decision of 1 August 2016. It had been made clear that the claimant disagreed with the decision and the First-tier Tribunal was entitled to treat the email of 26 October 2016 as an appeal and waive the formalities. Mr Heppinstall argued that such a decision was a matter in the discretion of the First-tier Tribunal and that the Upper Tribunal should not interfere with such an exercise of discretion, but it seems to me that the First-tier Tribunal failed to address the issue at all and would have erred in law if the claimant’s arguments were good ones, because justice would plainly have been served by regarding her as having appealed against the actual refusal to review. However, for reasons to which I now turn, I am not in fact persuaded that it makes any difference whether the claimant was appealing against the decision of 1 August 2016 or the decision of 26 October 2016. Jurisdiction – refusal to review an interim award 28. As I have indicated, the claimant accepts that, insofar as it was an interim award, no appeal lies against the decision of 1 August 2016 by virtue of regulation 3(2)(a) of the 2011 Regulations. However, her husband argues that a refusal to review an interim award is not a decision that “arises from the making of an interim award”. 29. In his initial response to this appeal, the Secretary of State argued that a refusal to review a decision was never appealable because it was not a decision that “determines whether a benefit is payable” or “determines the amount payable under NH v Secretary of State for Defence (No.2) (AFCS) [2018] UKUT 217 (AAC) CAF/942/2017 8 an award of benefit” and so did not fall within the scope of regulation 3(1). However, Mr Heppinstall told me that, having regard particularly to the Court of Appeal’s reasoning in Wood v Secretary of State for Work and Pensions [2003] EWCA Civ 53 (reported as R(DLA) 1/03), the Secretary of State no longer took that view and accepted that regulation 3(1) was to be construed broadly. I consider his change of stance to be well made. It is supported by paragraphs 7.2 and 7.3 of the explanatory memorandum to the 2011 Regulations, which is cited in FA at paragraph [33]. Plainly a decision reviewing an award or a refusal of an award is generally appealable and it is difficult to imagine that it was intended that a refusal to review should not be equally appealable. 30. The Secretary of State now merely submits that there is no appeal against a refusal to review an interim award because, contrary to the claimant’s argument, such a refusal to review necessarily “arises from the making of an interim award”. 31. I accept that, on one analysis, a review or refusal to review is a distinct decision that does not “arise from” the making of the original decision, but I do not accept that that is the right analysis in this case because it would undermine the exclusion by enabling a collateral attack on the original interim award to be brought before the First-tier Tribunal. Articles 53(2)(d) and 55(10) of the 2011 Order have the effect that an interim decision may not be reconsidered under article 53 and may be reviewed only under either article 58 or 59. However, article 59 enables such a decision to be reviewed on the ground that it “was given in ignorance of, or was based on, a mistake as to a material fact or of a mistake as to the law” – the drafting is dire but one can see what was meant – and so an appeal against a decision to review or not to review an interim award would require consideration of the merits of the original decision. Mr Heppinstall submits that the whole point of the exclusion under regulation 3(2)(a) is to avoid the expense of appeals that may well turn out to be academic, or might be duplicated, when interim awards are replaced by final awards. 32. The claimant’s husband submits that FA and JB v Secretary of State for Defence (AFCS) [2016] UKUT 248 (AAC) in which I followed FA are authority for the proposition that there is a right of appeal on the question whether the threshold conditions for a review have been satisfied. FA was concerned with the question whether, in the light of regulation 3(2)(c) of the 2011 Regulations, there was a right of appeal against a refusal to make a temporary award under article 26(2) of the 2011 Order. It was held that regulation 3(2)(c), which prohibits an appeal against a decision which “makes … a temporary award”, did not prohibit an appeal against a refusal to make such an award (see paragraph [35] of the decision) although, on such an appeal, the appropriate tribunal was limited to considering whether the conditions precedent for making a temporary award were satisfied and could not go further and actually make such an award. As the claimant recognises, even if the approach taken in FA to regulation 3(2)(c) applies equally to regulation 3(2)(a), she is not assisted in the present case as far as the decision notified on 1 August 2016 is concerned because that decision was one that “makes” an interim award, rather than refusing one, and so is clearly caught by the exclusion. What, her husband seeks to do is apply the reasoning to review decisions under article 59. NH v Secretary of State for Defence (No.2) (AFCS) [2018] UKUT 217 (AAC) CAF/942/2017 9 33. However, although decisions under appeal in both FA and JB had been made on reconsideration or review and, for reasons given in JB, that was relevant to the question whether the 2011 Order and the 2011 Regulations applied at all in those cases or whether earlier legislation did, no distinction was otherwise drawn between original decisions refusing temporary awards and decisions given on reconsideration or review, or between original decisions and refusals to review. That should not be regarded as surprising. A decision reviewing, or refusing to review, a decision within the scope of regulation 3(2)(a) or (c) must, in my view, be regarded as a decision “arising from the making of” the interim award or temporary award, as the case may be. Otherwise, the exclusion would be completely undermined because the condition precedent for a review under article 59 is that the original decision is considered to be wrong and, rather than excluding a right of appeal, the legislation would merely make the right conditional on first applying for a review. Had that been intended, the legislation would have been drafted in a different form. I accept Mr Heppinstall’s submission that the purpose of the exclusion in regulation 3(2)(a) is simply to avoid the expense of appeals on issues that may well become academic once a final decision is made. That submission is again supported by paragraph 7.2 of the explanatory memorandum to the 2011 Regulations. In any event, given the relatively short-term nature of interim decisions, it seems to me to be inconceivable that the legislator intended to introduce a provision that would prolong the procedure for bringing an appeal. Jurisdiction – guaranteed income payment 34. The Secretary of State argues that there is also no right of appeal against the refusal to review the award of GIP. Again, he has somewhat changed his position, because he originally argued that there no appeal could ever be brought as regards the date from which GIP was payable on the ground that such an appeal would not fall within the scope of regulation 3(1) of the 2011 regulations. However, rightly, he now merely argues that it falls within the scope of the exclusion in regulation 3(2)(a). Consequently, he submits that the Veterans UK had been wrong to tell the claimant she had a right of appeal against the award of GIP in this case. 35. This potentially raises two questions. The first is whether an award of GIP based on an interim tariff award is itself an interim award. If not, the second question is whether such an award arises from the making of such an award. The argument before me focused mainly on the second of those questions, but I have come to the conclusion that the first is more important. 36. Whether there is entitlement to GIP under article 24 of the 2011 Order, and, if so, the amount of GIP, depends on the amount of the tariff award and I accept that, insofar as the amount of an interim tariff award affects entitlement to, or the amount of, a GIP, the GIP decision made on 1 August 2016 cannot be challenged because, if it is not actually an interim award itself, it “arises from the making of an interim award” for the purposes of regulation 3 of the 2011 Regulations. For the reasons I have given above, it makes no difference that there was subsequently a refusal to review 37. However, the claimant’s husband argues that it does not necessarily follow that other aspects of a GIP award can be said to arise from an interim award. Clearly NH v Secretary of State for Defence (No.2) (AFCS) [2018] UKUT 217 (AAC) CAF/942/2017 10 there is a temporal relationship between an interim tariff award and GIP, because GIP cannot be awarded until there is a tariff award of an appropriate amount, but the commencement date for payment of GIP is the same whether an award is interim or final. If the exclusion in regulation 3(2)(a) applies and, as is usually the case, a final award of a lump sum is made at the same, or a higher, tariff level than the interim award, the effect of the exclusion is simply to defer the possibility of bringing an appeal for a period of up to four years. 38. Mr Heppinstall, on the other hand, points out that where an interim award is made at a level that entitles the claimant to GIP, a final award may be at a lower level that does not entitle the claimant to GIP. In that event, he submits, article 52(8)(b) applies and GIP ceases to be payable, although the amount already paid is not recoverable. Since the amount will have been revealed to been in substance an overpayment, it is appropriate, he argues, that there should be no right of appeal to determine whether the right amount had been overpaid. That, as he put it, is a quid pro quo for the overpayment not being recoverable and thus, he submitted, the possibility of a final tariff award having that effect justified construing article 3(2)(a) as excluding a right of appeal in respect of any aspect of GIP made following an interim tariff award. I am not wholly persuaded by that argument because, although the legislation rightly allows for the possibility of a final award being lower than an interim award, it seems to me unlikely that it was expected that it would occur very often. 39. However, Mr Heppinstall’s reference to article 52(8) points to a more fundamental difficulty with the claimant’s argument. If the claimant is right and it were the case that GIP awarded as a result of an interim award of a lump sum was not itself an interim award, the 2011 Order would provide no mechanism for altering the amount of GIP, either upwards or downwards, following the making of a final award. Article 59 would not apply, because there would have been no mistake of fact involved if GIP had been awarded on a correct understanding of the tariff level of the interim award of the lump sum. In my judgment, therefore, article 52 must be construed as having the effect that, where GIP is awarded in the light of an interim award of a lump sum, the award of GIP is also an interim award or is part of the same interim award. That approach is consistent with the drafting of article 52 – in particular the use in paragraph (1) of the term “injury benefit” (which, by virtue of article 2(1) includes GIP) – and it has the effect that when a final award of a lump sum is made, a final award of GIP (or a decision refusing such an award) is made and paragraph (8) comes into play. (Despite the terminology used by both parties in the course of this appeal, neither extending the period for which an interim award has effect (under article 52(5) or (6)(a)) nor the making of a final award involves a “review” in the sense in which that term is used in articles 55 to 59.) 40. I am therefore satisfied that the claimant did not have a right of appeal to the First-tier Tribunal on the question of the starting date for GIP. Conclusion 41. It follows that, even though it may have erred in law in failing to provide documents to the claimant and in parts of its reasoning, the First-tier Tribunal reached the only conclusion open to it when it found that it did not have jurisdiction to NH v Secretary of State for Defence (No.2) (AFCS) [2018] UKUT 217 (AAC) CAF/942/2017 11 consider any aspect of the claimant’s appeal and struck it out. I therefore refuse to set aside its decision and I dismiss the claimant’s appeal. The commencement date of guaranteed income payment 42. It also follows that it is unnecessary for me to express a view on the other issues that were argued before me. I declined at the hearing to hear argument on any question as to the propriety of making an interim award because I was not persuaded that it was arguable that there was a right of appeal to the First-tier Tribunal against a refusal to review an interim award of a lump sum, but I did hear argument as to the commencement date of the award of GIP. Mr Heppinstall submitted that, even if I found that the First-tier Tribunal had erred in striking out the claimant’s appeal, I did not have power to do more than reverse that decision and so did not have the power to determine the substantive appeal that had been made to the First-tier Tribunal. Nonetheless, he invited me to rule on the issue of the commencement date and said that the Secretary of State would give effect to my decision. The claimant. of course, also wishes me to rule on the issue. 43. I incline to the view that the Secretary of State is right as to the power of the Upper Tribunal when allowing an appeal to the Upper Tribunal against the striking of an appeal to the First-tier Tribunal. However, had I held the First-tier Tribunal to have been wrong to strike out the claimant’s appeal insofar as it was concerned with the issue of the commencement date of GIP, I could properly have considered the issue of the commencement date in the context of deciding whether to give any relief because, at least in the present case, the issue is one of pure law. Thus, in the event of deciding the issue against the claimant, I could have refused to set aside the Firsttier Tribunal’s decision on the ground that, although the First-tier Tribunal had wrongly refused jurisdiction, the claimant’s appeal to the First-tier Tribunal could have been struck out on the ground that it had no reasonable prospect of success. In the event of deciding the issue in the claimant’s favour, I would have been bound to remit the case but would have been able to do so in the expectation that the Secretary of State would revise the decision under appeal on the ground that it was based on a mistake of law, thus causing the appeal to the First-tier Tribunal to lapse. 44. However, since I have decided that the First-tier Tribunal did not have jurisdiction to consider the issue of the commencement date of GIP, plainly the Upper Tribunal also lacks any jurisdiction. Nonetheless, as I have heard full argument on the point and my expressing a view is likely in practice to end the dispute for this particular claimant, I will address the issue even though what I say on the subject will have no precedential status. (Were I not to do so and were the period of the interim award to be extended for a further two years, it might be three years before the Upper Tribunal was able to give a decision on the issue.) This will also enable the Secretary of State to consider my comments on the drafting of the legislation 45. Articles 64 to 65A of the 2011 Order appear in Part 8, under the heading “Payment”. They provide – NH v Secretary of State for Defence (No.2) (AFCS) [2018] UKUT 217 (AAC) CAF/942/2017 12 “Date on which awards of benefit become payable 64.—(1) A lump sum, a fast payment, medical expenses and a bereavement grant are to be paid as soon as is reasonably practicable after the award has been made. (2) Subject to paragraphs (5) and (6) an award of guaranteed income payment becomes payable— (a) where a member is discharged from the forces on medical grounds and the award is for the injury which caused the member to be discharged on medical grounds, on the day after the discharge; (b) where a member is awarded injury benefit which includes an award of guaranteed income payment, on the day after the day on which the member's service ends; (c) in any case where sub-paragraph (a) or (b) does not apply, on the date of claim. (2A) Subject to paragraph (2B) and notwithstanding paragraph (8), where a person becomes entitled to armed forces independence payment, that allowance becomes payable on— (a) subject to paragraph (b), the date of claim; or (b) where the date of claim is no later than 3 months after the date an award of guaranteed income payment has been determined or revised— (i) the date of claim for that award; or (ii) where paragraph (5) applies, the date on which the guaranteed income payment is, or, but for article 16(10) would have been, payable. (2B) No armed forces independence payment is payable for any period before 8th April 2013. (3) Where a person who is entitled to a pension for disablement or death under the Naval, Military and Air Forces Etc (Disablement and Death) Service Pensions Order 2006 (“the 2006 Order”) subsequently becomes entitled to benefit under this Order for the same injury or death for which there was entitlement under the 2006 Order, the date on which benefit under this Order becomes payable is the date on which— (a) a claim for benefit is determined under article 51; (b) a final award is made under article 54; (c) a decision of the Secretary of State is reconsidered under article 53 or revised under article 55, 56, 57 or 59; (d) a decision relating to benefit is revised by an appropriate tribunal, the Upper Tribunal, an appropriate Social Security Commissioner or a court, as the case may be. (4) Subject to paragraph (6), an award of survivor's guaranteed income payment and an award of child's payment become payable— (a) on the day following the date of death where— (i) a member dies in service; or (ii) a former member dies and a claim for benefit is made within 3 months of the date of death; or (b) on the date of claim where sub-paragraph (a) does not apply. (5) Subject to article 16(10), an award— (a) revised under article 53 becomes payable on the date of claim; (b) revised under article 55 becomes payable on the day after the member's service ends; (c) revised under article 56 or 57 becomes payable on the date the application for review is sent to the Secretary of State; (d) subject to paragraph (6), revised under 59 becomes payable— (i) on the date the application for review is sent to the Secretary of State; or NH v Secretary of State for Defence (No.2) (AFCS) [2018] UKUT 217 (AAC) CAF/942/2017 13 (ii) where no application for a review has been made, the date on which the decision in relation to the revised award is sent to the claimant. (6) Subject to paragraph (8), where a decision of the Secretary of State is revised under article 59 so as to award benefit or increase the amount of benefit awarded, guaranteed income payment, survivor's guaranteed income payment or child's payment becomes payable from the beginning of the period starting 6 years— (a) before the date on which the application for review is sent to the Secretary of State; or (b) where no application for a review has been made, before the date on which the decision in relation to the revised award is sent to the claimant. (7) Where the amount of an award is reduced following a review under article 58 or 59, the reduced amount becomes payable on the date on which notification of the revised award is given or sent to the claimant. (8) Except where paragraph (4)(a)(ii) applies, no benefit is payable for any period before the date of claim. Time of payment 65. Guaranteed income payment, survivor's guaranteed income payment and child's payment are paid monthly in arrears unless, in any particular case, the Secretary of State arranges otherwise. Time of payment for armed forces independence payment 65A. Armed forces independence payment is paid every 4 weeks in arrears, unless in any particular case the Secretary of State arranges otherwise.” 46. Since article 64(1) seems in fact to be concerned with the time of payment (which is a matter relating to the administration of payments), rather than the date on which awards of benefit become payable (which is really a matter of entitlement), it seems odd that it is included within article 64 at all, rather than in or with the two following articles, but nothing turns on that drafting issue. Article 64(1) is concerned with one-off awards (although there may be repeated awards of medical expenses), whereas articles 65 and 65A are concerned with periodical payments. (There is no reference in any of these provisions to a supplementary award, which is treated as a separate benefit under article 15, but that may be because it is always paid with a lump sum.) Article 64(2) to (8) also appears to be concerned with, or to be of practical importance only in relation to, periodical payments, save that paragraph (3) appears also to apply to medical expenses. One-off payments under the 2011 Order other than medical expenses are not paid in respect of any particular period or in respect of expenses incurred on a particular date. 47. In the present case, I am concerned primarily with article 64(2) and (3). The claimant argues that her case is clearly governed by paragraph (2), so that GIP should have been awarded from 3 May 2012. The Secretary of State decided, however, that paragraph (3) applied and that GIP was payable from the date on which the First-tier Tribunal decided that the claimant’s chronic fatigue syndrome had been worsened by service since 6 April 2005. The Secretary of State now submits that the correct date would have been 1 August 2016, when he made the award of GIP. 48. The background to the Secretary of State’s decision is that, because she was discharged on medical grounds, the claimant's possible entitlement to retired pay under article 6 of the 2006 Order was automatically considered upon her discharge NH v Secretary of State for Defence (No.2) (AFCS) [2018] UKUT 217 (AAC) CAF/942/2017 14 without her having made a claim (see article 35(2)). The Secretary of State accepted that the claimant was suffering from chronic fatigue syndrome and decided that that condition was attributable to service before 6 April 2005 and he did so on the basis that “multiple musculoskeletal joint pains” were part and parcel of the condition. He assessed disablement at 20% and retired pay was awarded accordingly. The claimant’s appeals against those entitlement and assessment decisions were heard at the same time as her initial appeal against the decision under the 2011 Order. She was substantially successful in her appeal against the entitlement decision, in that the First-tier Tribunal held that chronic neck pain, right shoulder impingement and right hip impingement from which the claimant had been suffering were separate from the chronic fatigue syndrome and were attributable to service before 6 April 2005. Her assessment appeal was successful only to the extent that the First-tier Tribunal increased the assessment in respect of chronic fatigue syndrome to 30%. Therefore, when she appealed against the First-tier Tribunal’s dismissal of her appeal under the 2011 order, she appealed also against its assessment decision but did not appeal against the entitlement decision. Consequently, after I had allowed both appeals and remitted the cases, the First-tier Tribunal sitting on 20 and 21 January 2016 had before it the assessment appeal under the 2006 Order and the case under the 2011 Order, but did not have before it an entitlement appeal under the 2006 Order. Because, at the earlier hearing, the First-tier Tribunal had not made an assessment in respect of the separate conditions it had found, the Secretary of State had subsequently done so, although the composite assessment was still 30%. The claimant appealed against that decision too. The First-tier Tribunal allowed both assessment appeals to the extent of making a composite assessment of 70% from 3 May 2012 to 31 December 2013, 40% for the whole of 2014 and 2015 and an interim assessment of 30% from 1 January 2016. During the course of those proceedings, the claimant raised the question of entitlement to supplementary allowances. The First-tier Tribunal correctly stated that those were not in issue before it because the Secretary of State had not made any decision in respect of such allowances because no claim for them had been made. 49. It is perhaps not surprising that, even if not necessarily inconsistent, the earlier entitlement decision under the 2006 Order and the First-tier Tribunal’s new decision under the 2011 Order do not sit easily together. Perhaps more surprising is the lack of any consideration of the possible relevance of the findings in the 2011 Order decision in the assessment decision under the 2006 Order. However, notwithstanding any possible inconsistencies, all three currently effective decisions must, in the absence of any appeal, be taken at face value for present purposes. Moreover, such inconsistencies in decisions may be of little real significance given the rough and ready nature of the scheme under the 2011 Order, which appears to provide the same amount of benefit whether an injury is wholly caused by service on or after 6 April 2005 or is partly caused by service before 6 April 2005 and is either only predominantly caused by later service or, as in the present case, is worsened by later service. 50. The Secretary of State submits that article 64(3) applies to GIP, since that is a form of “benefit”, and that therefore that paragraph must be read as modifying the effect of paragraph (2). If that is so, it seems very odd that paragraph (2), which is expressly made subject to paragraphs (5) and (6), is not also expressly made subject to paragraph (3). I therefore raised the question whether the lack of reference to NH v Secretary of State for Defence (No.2) (AFCS) [2018] UKUT 217 (AAC) CAF/942/2017 15 paragraph (3) in the opening words of paragraph (2) had the effect that paragraph (3) had to be construed as not applying to GIP. That would not be altogether absurd because, as I have suggested, it is difficult to see how paragraph (3) could actually have any effect in respect of a lump sum payment, a fast payment or a bereavement grant and so “benefit” in that paragraph plainly does not in practice apply to all the benefits that are listed in articles 15(1) and 29(1) as payable under the 2011 Order. 51. However, Mr Heppinstall argued that there is no good reason why paragraph (3) should not apply to GIP because the paragraph is designed to prevent payments under the 2011 Order from duplicating payments under the 2006 Order. The claimant’s husband, on the other hand, argued that paragraph (3) produced an unfair result in her case and could not have been intended to apply to GIP. She had not received any supplementary awards under the 2006 Order and, if the Secretary of State’s decision was correct, the delay in making any award in her case, which was no fault of hers, had had the effect that she had lost over three and a half years’ worth of GIP and would have lost even more if the Secretary of State’s current submission as to the date from which GIP should have been paid is correct. 52. Paragraph (3) is plainly, as Mr Heppinstall submits, there to prevent the duplication of payments in the event of an overlap between the scheme under the 2006 Order and the scheme under the 2011 Order. The claim under the 2011 Order in this case was made before article 12(2) was inserted and so I need not consider the implications, if any, of that insertion. At the time of the claim, there was provision for adjusting benefit payable under the 2006 Order in the light of an award of compensation under the 2011 Order but not vice versa. It seems to me that article 64(3) is designed to supplement that provision in a case where payments under the 2006 Order are being made following an assessment of disablement of at least 20% and an award is then made under the 2011 Order that would, in the absence of that provision, result in arrears of periodical payments or payments of medical expenses being made. The reason is, presumably, that it is simpler to withhold the arrears that would otherwise be due under the 2011 Order, rather than pay the arrears and then make an adjustment to future payments under the 2006 Order in order to take the arrears into account. 53. However, although payments made under the 2006 Order are generally adjusted under article 52 of that Order only to the extent that an element of another payment of compensation is made for the same purpose, article 64(3) applies whether or not payments under the 2006 Order, made in respect of the period between the date of a claim under the 2011 Order and the date of the determination of the claim, were made for the same purpose as benefits awarded under the 2011 Order. 54. I do not consider that the omission from the opening words of paragraph (2) of any reference to paragraph (3) can by itself be sufficient to show that paragraph (3) was not intended to apply to GIP and that the word “benefit” in paragraph (3) is therefore to be construed as not including GIP. If paragraphs (5) and (6) did not exist and there was therefore no express wording requiring paragraph (2) to be read subject to any other paragraph, it would, in the absence of any other indication of the legislator’s intent, still have to be read as being subject to paragraph (3) simply because where there are two apparently conflicting provisions it is natural to read the NH v Secretary of State for Defence (No.2) (AFCS) [2018] UKUT 217 (AAC) CAF/942/2017 16 more general one as being subject to the more specific one. The reference to paragraphs (5) and (6) cannot make any difference, although it seems to me to be poor drafting not to have included a reference to paragraph (3) as well if that paragraph does apply to GIP. However, if there were some other reason for supposing that the legislator intended that paragraph (3) should not apply to GIP, the lack of reference to paragraph (3) in paragraph (2) would tend to confirm that that was indeed the intention. 55. That paragraph (3) produced obviously unfair results if applied to GIP might be such an indication. However, insofar as the unfairness of which the claimant complains may have arisen from her not having claimed supplementary allowances under the 2006 Order, it seems to me that, if there is any unfairness at all, it arises out of, or out of the administration of, the 2006 Order rather than out of article 64(3) of the 2011 Order. The claimant was potentially eligible for an allowance for lowered standard of occupation under article 15 of the 2006 Order for the period from 3 May 2012 to 31 December 2015 (in respect of which the 2016 assessment of her disablement in respect of chronic fatigue syndrome was at least 40%). Schedule 3 to the 2006 Order makes provision for the date from which claims are effective and, despite some odd drafting, has the effect that a claim for such an allowance in a case like this should be made within three months of the termination of the claimant's service. Otherwise a claim is generally effective only from the date it is made, although there are provisions for backdating a claim in some circumstances. (I have not considered whether any of those provisions might have applied, or might still apply, in this case.) I accept that the Secretary of State's original assessment of disablement was too low to justify an award of an allowance for lowered standard of occupation but the 2006 Order does not make express provision to the effect that a person may delay making a claim for the allowance until an adequate assessment is made. That is not necessarily unfair, provided that sufficient information is available to potential claimants as to the time when a claim should be made. Whether or not that is generally so, or was so in this case, I need not consider. 56. However, as was the position in the present case for the brief period from 1 January 2016, it is quite possible for a person to be entitled to “a pension for disablement”, which presumably includes retired pay in this context and implies an assessment of disablement of at least 20%, but not be eligible for either an unemployability supplement or an allowance for lowered standard of occupation, which are the payments made under the 2006 Order made in respect of the loss of earning capacity of a former member of the Armed Forces and are the elements with which GIP most obviously overlaps. In particular, eligibility for an allowance for lowered standard of occupation requires disablement to have been assessed at at least 40% and an unemployability supplement requires disablement to have been assessed at at least 60% (quite apart from the fact that an unemployability supplement overlaps with benefits under the civilian social security scheme). Moreover, in this case, it might have been arguable that the claimant’s loss of earning capacity arose out of the worsening caused by service on or after 6 April 2005, rather than being caused by service before that date, although the level of the assessment of disablement under the 2006 Order would have weakened that argument. NH v Secretary of State for Defence (No.2) (AFCS) [2018] UKUT 217 (AAC) CAF/942/2017 17 57. It is therefore arguable that article 64(3) is capable of producing unfair results if it applies to GIP. It is also arguable that it is unlikely to do so as regards medical expenses, survivors guaranteed income payment (which arguably can be taken into account against a survivor’s pension under article 23 of the 2006 Order, whereas it is arguably not appropriate to take GIP payable until death into account against retired pay or a pension under article 6 because such retired pay or pension is paid in respect of disablement rather than loss of income), a child’s payment or, now, armed forces independence payment. 58. However, even if article 64(3) is capable of producing unfair results if applied to GIP and does not in other cases, I am not persuaded that it does not apply to GIP. I must give effect to the intention of the legislator. The draftsman can hardly have overlooked the fact that that paragraph was something of a blunt instrument, because the conditions for entitlement to benefit under the 2011 Order are not the same as the conditions for entitlement to benefit under the 2006 Order. He or she could have made, but did not make, more precise provision by either giving the Secretary of State a right to withhold from arrears due under the 2011 Order a sum equal to the adjustment to be made to the payments under the 2006 Order in consequence of the arrears or (which might have been administratively simpler) by providing that arrears due under the 2011 Order should simply be reduced by the amount of any relevant payments under the 2006 Order that had actually been made. Given the limited circumstances in which it can apply and the likely degree of double payment that there may be in cases where it does apply (since there is no reduction in the amount of the main one-off payments payable under the 2011 Order where an injury or death is partly caused by service before 6 April 2005), it may be thought that article 64(3) is consistent with the rough and ready nature of the scheme under the 2011 Order, to which I have alluded above. 59. It also has to be borne in mind that the application of article 64(3) to GIP will often not cause any unfairness at all. That it had a particularly severe effect in the present case because, not only was the claimant not receiving a supplementary allowance under the 2006 Order for which she may have been eligible for much of the relevant period, but also over five years elapsed between her claim under the 2011 Order and the interim award made on that claim, does not by itself indicate that it was not intended that the article should not apply to GIP at all. It seems quite likely that the draftsman simply did not anticipate that adjudication might take so long. Had consideration been given to exactly how the paragraph might operate in relation to each type of benefit and had it been intended to exclude GIP, it seems most unlikely that the draftsman would have used the word “benefit” rather than specifying the individual types of benefit to which it was intended the paragraph should apply. 60. Accordingly, I accept the Secretary of State’s argument that paragraph (2) of the 2011 Order must be read as being subject to paragraph (3). The same presumably applies to paragraph (4) and quite possibly paragraphs (2A) and (6) as well. 61. As to the date from which GIP was payable in this case, the Secretary of State now argues that paragraph (3)(a) applies and that the date on which the claim for benefit was determined was 1 August 2016, when he awarded GIP. It seems likely that, when the award was made, the decision-maker considered that paragraph NH v Secretary of State for Defence (No.2) (AFCS) [2018] UKUT 217 (AAC) CAF/942/2017 18 (3)(d) applied. Given the drafting of paragraph (3), such an approach would be understandable, because the claimant’s claim for benefit had originally been determined in, I think, 2012 and, insofar as it is ever correct to refer to a decision being “revised” by an appropriate tribunal, that determination was revised by the tribunal that sat on 20 and 21 January 2016 (although the decision-maker was wrong in assuming that, as would usually have been the case, the First-tier Tribunal had announced its decision at the end of the hearing). 62. However, as a payment cannot be made unless there has been an award and as the first award must include the commencement date for payments, it seems to me to be obvious that, given the context, paragraph (3) must be construed as providing that the date from which benefit is payable in the cases to which it applies is the date on which a decision is made to award benefit and that subparagraphs (a) to (d) are intended to make it clear that that is so whether the award is made on the determination of a claim (which in this context, and at least some other contexts in the Order, includes the making of an interim award or a temporary award), on the making of a final award under article 52, on reconsideration, on review or on appeal. (The reference to article 54, rather than article 52, in subparagraph (b) appears to be a mistake, since article 54 does not actually provide for the making of final awards and, given subparagraphs (a) and (c), it seems unlikely that the draftsman meant to say “a final award within the meaning of article 54 is made”.) 63. As I have explained in paragraph 24 above, the award in this case was made by the Secretary of State on 1 August 2016, rather than by the First-tier Tribunal. Accordingly, I accept the Secretary of State’s submission that GIP ought to have been awarded to the claimant only from 1 August 2016. Mark Rowland 29 June 2018
NJ v Secretary of State for Defence (AFCS): [2018] UKUT 211 (AAC)
NJ v Secretary of State for Defence [2018] UKUT 211 (AAC) CSAF/56/2018 1 IN THE UPPER TRIBUNAL Appeal No. CSAF/56/2018 ADMINISTRATIVE APPEALS CHAMBER Before: Upper Tribunal Judge A I Poole QC The decision of the Upper Tribunal is to allow the appeal. The decision of the Pensions Appeals Tribunal, issued on 13 June 2017 following a hearing dated 8 June 2017, is set aside. Under section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007 I remake the decision. The remade decision is as follows: The appellant qualifies for an award of benefit under Article 8 of the Armed Forces and Reserved Forces (Compensation Scheme) Order 2011 in respect of the left knee injuries she sustained on 3 February 2015 because those injuries were caused by service. Those left knee injuries were a rupture of the anterior cruciate ligament of the left knee; a partial rupture of the medial collateral ligament of the left knee; a tear of the medial meniscus of the left knee; a sub articular fracture of the lateral femoral condyle of the left knee; and bone contusions involving both tibial condyles and the left lateral condyle of the left knee. The award under the Armed Forces and Reserved Forces (Compensation Scheme) Order 2011 must now be determined by the Secretary of State. REASONS FOR DECISION Background 1. The issue in this appeal is whether the appellant is entitled to an award of benefit under the Armed Forces and Reserved Forces (Compensation Scheme) (“AFCS”) Order 2011 (the “Order”) in respect of injuries to her left knee. These are the relevant facts found by the Pensions Appeal Tribunal (the “tribunal”) and set out in its statement of reasons. “7. On 3 February 2015, the Appellant was deployed on the Army Medical Services Ski Championships as head coach. She was representing the Royal Army Dental Corps. 8. Skiing was an approved sport, and the Army Medical Corps Ski Championships were recognised by the relevant Service in terms of paragraph 11(6) of The Armed Forces and Reserved Forces (Compensation Scheme) Order 2011 (“The Order”). 9. At or about 11.00 am on 3 February 2015, the Appellant was on duty as head coach at the Ski Championships when she sustained injuries to her left knee as a result of a French civilian skier colliding into her from behind. 10. At the time of the accident, she was observing those whom she was coaching as they descended into a slalom course. She was standing 1 or 2 metres to the side of the piste, which had been reserved for those taking part in the Championships. The NJ v Secretary of State for Defence [2018] UKUT 211 (AAC) CSAF/56/2018 2 piste was partly fenced off and there were notices saying ‘Piste Fermé’ to indicate that it was closed to members of the public. 11. The reserved piste ran side by side with another piste which was being used by recreational skiers. The Appellant was standing on an area of snow between the two pistes about 7 or 8 metres from the recreational piste. 12. The point at which she was standing was one of three places where she could properly position herself in her coaching role. She was a well qualified and experienced coach and she considered it to be a safe place. 13. There was no-one else standing in the area where the Appellant had positioned herself. There was nothing to prevent either other service personnel or members of the public from standing there. 14. The French civilian skier who collided with the Appellant was a teenager who had been skiing on the recreational piste and had lost control. After the collision, the teenager’s mother asked the Appellant if she was alright before she and her son skied off. The Appellant, in the heat of the moment, did not ask her for details. 15. As a result of the collision, the Appellant sustained the injuries to her left knee in respect of which she now seeks compensation, namely a rupture of the anterior cruciate ligament of the left knee; a partial rupture of the medial collateral ligament of the left knee; a tear of the medial meniscus of the left knee; a sub articular fracture of the lateral femoral condyle of the left knee; and bone contusions involving both tibial condyles and the left lateral condyle of the left knee… 18. There is no doubt that at the time of the accident, the Appellant was on duty and acting in the course of her service as a coach at the Army Medical Services Ski Championships… 19. She was an experienced coach and was very aware of safety issues. She explained in evidence that while observing those whom she was coaching, she chose to stand in what she considered to be a safe and recognised position. There was noone else standing in the same area, although there was nothing to prevent them from doing so. There was no criticism of where she had chosen to stand. There is no doubt that the Appellant would not have been standing where she was but for the fact that she was on duty in the course of her service”. Procedural history 2. On 5 August 2015, the Secretary of State for Defence (“SSD”) rejected a claim by the appellant for an award of benefit under the AFCS. It did so on the basis that the injury to the appellant was caused by the actions of a civilian third party and not by service. The decision was reconsidered on 29 February 2016 but not changed. It was decided that service provided the background for the injury to take place but did not intrinsically cause the injury. There was no greater likelihood of the incident occurring in a non-service environment than in a service environment. Accordingly the SSD found that service was not the predominant cause of the injury. 3. Following a hearing on 8 July 2017, the tribunal upheld the decision of the SSD. It issued both a Decision Notice and a Statement of Reasons, both signed and dated 13 June 2017, referred to in more detail in the reasons below. NJ v Secretary of State for Defence [2018] UKUT 211 (AAC) CSAF/56/2018 3 4. Leave to appeal was granted by the President of the tribunal on 5 February 2018, on the basis that an arguable case had been stated by the appellant in grounds of appeal. By submission dated 19 April 2018, the SSD does not support the appeal. 5. Both parties have requested a decision with reasons. Neither party has requested an oral hearing. I am satisfied that I can determine the appeal fairly on the papers. Grounds of appeal for the claimant 6. Grounds of appeal dated 17 and 24 July 2017 were received by the Upper Tribunal on 19 February 2018. Further Observations on the Appeal dated 24 May 2018 were also made by the appellant, following receipt of the submission by the SSD. The appellant requests that the appeal is allowed and a decision is substituted that there was a service cause for the injuries. I summarise the appellant’s grounds of appeal as follows: 6.1The tribunal erred in its application of Article 8 of the Order. 6.2The tribunal applied the wrong test, having regard to the case of JM v SSD [2015] UKUT 332, and War Pensions and Armed Forces Compensation Law and Practice by Andrew Bano at page 112, in that it did not consider first whether without the service cause the injury would have occurred at all. The appellant’s claim would succeed on that basis alone. It was an error to apply the four step approach identified in JM. 6.3The tribunal erred in its approach to the cases of JM v SSD [2015] UKUT 332, EW v SSD [2011] UKUT 186, SV v SSD [2013] UKUT 0541 and JH v SSD [2017] UKUT 0140. To the extent that these cases found that there were non service causes for injuries, they were distinguishable on the facts. All four concerned incidents occurring outwith a service environment, for example when people were off duty engaged in activities such as walking to or from work or accommodation and being knocked over, swimming during free time, or being head butted by a roommate. In contrast, the incident in this case occurred while the appellant was performing her service duties in a normal and competent manner. 6.4The tribunal erred in that if its reasoning was correct, even if a person was on active duty and in a combat situation, if their injury was caused by a third party assailant they would not be entitled to make a claim. That could not be right. 7. In a letter dated 25 April 2017 the appellant disputes that there was no greater likelihood of the injury occurring in a non-service environment. She argues that had she been skiing in a non-service environment she would not have been standing at the side of the piste for long periods of time coaching racers. She also disputes the finding that service was not the predominant cause. Had she not been deployed as a race coach, she would not have been on the exercise or the hill, or spending time stationary at the side of the piste. Submissions for the SSD 8. The SSD argues that the injury was caused by a wayward third party skiing into the appellant. Service provided only the setting for and was not the cause of the accident. Following the case of JH, service was the reason the appellant was where she was, but was not the cause of the injuries sustained. The predominant cause of the accident and consequent injury was the civilian skier who collided NJ v Secretary of State for Defence [2018] UKUT 211 (AAC) CSAF/56/2018 4 with the appellant. The SSD disagrees that cases cited by the tribunal were irrelevant. Refusal of an award is the only decision which a tribunal reasonably applying the facts of the case could arrive at. Governing law 9. The key provision in the Order for the purpose of this appeal is Article 8, “Injury Caused by Service”, which provides: “(1) Subject to articles 11 and 12, benefit is payable to or in respect of a member or former member or the forces by reason of an injury which is caused (wholly or partly) by service where the cause of the injury occurred on or after 6 April 2005 (2) Where injury is partly caused by service, benefit is only payable if service is the predominant cause of the injury”. In Article 2 of the Order it is provided that “service” means service as a member of the forces, and “predominant” means more than 50%. 10.Article 8 is expressly “subject to Articles 11 and 12”. These Articles contain a number of exemptions from awards of benefit. Article 12 covers matters such as injuries caused by tobacco, alcohol, the use of drugs, consensual sexual activities, and events before the member entered service. Although mentioned by the appellant, it is not directly relevant to this appeal, because it is not relied on by the SSD as a reason not to make an award of benefit. Article 11 also is not directly in point. This excludes from awards of benefits matters such as travel to and from work, slipping and tripping, and sporting injuries in certain circumstances. However, it is accepted by the SSD that the Article 11(5) exemption of sporting injuries from the remit of compensation under the AFCS does not apply in this case, because the sporting activity in which the appellant was engaged was approved under Article 11(6). Article 11 does not therefore exempt the appellant from an award. 11.Accordingly what is in issue in this case is whether the appellant is entitled to an award under Article 8 of the Order. Articles 11 and 12 are of peripheral relevance only, in that it is evident that they contain a significant amount of detail about what will not be covered by the AFCS. In neither Articles 11 or 12 is there an express exemption for injuries caused by civilians or third parties. 12.The leading case on Article 8 is the decision of the three judge panel in the case of JM v Secretary of State for Defence [2015] UKUT 332 (“JM”). I summarise the salient parts as follows: 12.1 The AFCS aims to establish an entitlement to benefit based on cause, as opposed to breach of duty or fault, for those who sign up to serve the nation. The consequence is that if service is not the cause (or sufficiently the cause) of the relevant injury, the claimant is left to pursue other claims for compensation or support (paragraph 85). There is an underlying intention that compensation may be paid for an injury that has more than one cause (paragraph 137). 12.2 The correct approach to the issues of cause and predominant cause under Article 8 of the AFCS is: NJ v Secretary of State for Defence [2018] UKUT 211 (AAC) CSAF/56/2018 5 “First identify the potential process cause or causes (ie the events or processes operating on the body or mind that have caused the injury); Secondly, discount potential process causes that are too remote or uncertain to be regarded as a relevant process cause; Thirdly, categorise the relevant process cause or causes by deciding whether the circumstances in which each process cause operated were service or non-service causes. It is at this stage that a consideration of those circumstances comes into play and the old cases on the identification of a service cause applying the old attributability test provide guidance. Fourthly, if all of the relevant process causes are not categorised as service causes, apply the predominancy test”. (Paragraph 118). If there is only one cause, which is not a service cause, this fourth stage will not fall to be applied (paragraph 123). 12.3 In carrying out this four stage assessment, it is helpful to bear in mind that: ““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…” (paragraph 80). “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 (paragraph 81)”. 12.4 Deciding whether something is a service cause is an exercise of attribution (paragraph 83). When a claimant is engaged on a personal enterprise unconnected with any duty or compulsion of service, service provides only the setting for injury and is not the cause (paragraph 99). 12.5 The ‘predominant’ test in Article 8(2) was a deliberate change from earlier compensation schemes where it was sufficient if one of the causes of an injury was a service cause, even if there were other causes (paragraph 78). 12.6 This guidance is not intended to be prescriptive and it may need to be modified or abandoned in some cases (paragraph 138). 13.In relation to the appellant’s argument that it was an error of law to apply the 4 stage test set out in JM, when the particular dicta in JM relied on by the appellant to make this argument are read in context, it is clear that they were directed at the situation where the only competing causes are service and pre-existing weakness. This is not such a case. Page 112 of War Pensions and Armed Forces Compensation Law and Practice by Andrew Bano does not detract from this position, because it quotes the dicta below in the context of cases “where a claimant has a constitutional vulnerability to the injury giving rise to the claim”. The relevant passages of JM are: NJ v Secretary of State for Defence [2018] UKUT 211 (AAC) CSAF/56/2018 6 134. “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 (bold added) the decision-maker generally should firstly consider whether, without the “service cause”, the injury would: a)have occurred at all, or b)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”. 14.I therefore find that the tribunal did not err in finding that it should be guided by the four stage test in JM rather than the test at paragraphs 134-6 of JM, because this appeal is not presented as a case about pre-existing weaknesses. The general four stage approach was applicable. However, for reasons set out below, I consider that the tribunal erred in its application of the four stage test to the facts which it found. Before explaining why, I deal first with an additional error in law by the tribunal arising from inconsistency between the tribunal’s Decision Notice and Statement of Reasons. Failure to provide adequate reasons arising from inconsistency between Decision Notice and Statement of Reasons 15.The tribunal’s Decision Notice prepared after the hearing on 8 June 2017 and signed and dated 13 June 2017 states: “In the opinion of the tribunal, the service cause would not have been predominant: it merely provided the setting for the accident and consequent injury. The predominant cause (that is more than 50%) was the French civilian skier colliding with the appellant”. 16.However, the Statement of Facts and Reasons dated 13 June 2017, says at paragraph 16: “The Tribunal found that the appellant’s injuries were caused solely by a nonservice cause, namely the appellant being struck by the French civilian skier. The Appeal is therefore dismissed”. NJ v Secretary of State for Defence [2018] UKUT 211 (AAC) CSAF/56/2018 7 At paragraph 30, after finding there were no countervailing factors to suggest a service cause, the tribunal went on to say that if it was wrong on this, the tribunal would have found that the service cause was not the predominant cause of the injury. It then went on to repeat the wording in the Decision Notice set out above. 17.In my view, there is a clear inconsistency between the Decision Notice and the Statement of Facts and Reasons. Under Article 8(2) of the Order set out above, the issue of predominant cause only arises where a tribunal has already found that injury is partly caused by service. The Decision Notice of 13 June 2017 therefore supports a process of reasoning that the tribunal was satisfied that there was a service cause of the injury, but it was not predominant. But the Statement of Facts and Reasons finds in terms that the injuries were caused solely by a nonservice cause, which is not consistent. I do not consider that the ‘fall-back’ position in paragraph 30 results in the reasons being adequate. Since the key questions in this case were what the cause or causes of the injury were, and whether they were service or non-service causes, this was a material matter. The inconsistency gives rise to legitimate doubts as to the reasoning process actually adopted by the tribunal, and its application of the law to the facts which it found. 18.In LA v SSWP (ESA) [2014] UKUT 482 (AAC), at paragraph 8, it was found that care has to be taken when drafting summary reasons in a Decision Notice, in a context where there was also a Statement of Reasons. The wording used must reflect the process of reasoning actually deployed by the Tribunal. At paragraph 12 the Upper Tribunal Judge stated: “While there may be two documents involved, there can only ever have been a single reasoning process. Therefore, if the contents of the two documents are inconsistent, the Tribunal will not have given adequate reasons. No one can know exactly what the reasons were. In fact, the need for consistency applies even if the two documents are not unified by a statement that they are to be read together (see the decision of Social Security Commissioner Jacobs, as he then was, in CCR/3396/2000)”. A similar finding has more recently been made in SSWP v C O'N (ESA) [2018] UKUT 80 (AAC) at paragraph 1. 19.I therefore find that the tribunal erred in law by failing to provide adequate reasons, as a result of the inconsistency between the Decision Notice and the Statement of Reasons. Error in law in the application of Article 8 20.I turn now to the main issues in contention between the parties, concerning the application of Article 8 of the Order to the facts found by the tribunal. In this case it was not in issue that the appellant suffered an injury to her left knee, the cause of the injury occurred on or after 6 April 2005, and the appellant was a member of the forces. What was in issue under Article 8 was what the causes of the injury were, whether they were service causes, and if so whether a service cause was the predominant cause. The tribunal correctly at paragraph 22 identified its task as answering the following questions: “Firstly, was the injury caused wholly or partly by service and, if the latter, was service the predominant cause?” (as previously suggested in JH v SSD [2017] UKUT 0140 at paragraph 21). It then proceeded, correctly in my view, to point to the four stage test set out in JM to NJ v Secretary of State for Defence [2018] UKUT 211 (AAC) CSAF/56/2018 8 assist it in reaching the answer to these questions. However, as explained below, the tribunal then erred in law in how it applied these legal tests to the facts it had found. JM Stages 1 and 2 21.These stages may be dealt with together. They entail the tribunal first identifying the potential process cause or causes (ie the events or processes operating on the body or mind) that have caused the injury, then discounting any which are too remote. The tribunal did this, finding that there was only one process cause – being struck from behind by the French civilian skier (paragraph 29) (the “civilian collision” cause). In my view, in doing so, the tribunal erred in applying the law to the facts. It took too narrow approach to ‘cause’ for the purposes of Article 8. 22.As JM notes at paragraph 80, “cause” has many overtones. There can be a range of causes of an event such as injury, all with differing degrees of proximity to the injury. On the wording of Article 8, what is meant by a ‘cause of an injury’ is wider than only the most proximate causes of the injury. This is because Article 8 specifically includes “service causes”, in a context where service is defined as service as a member of the forces. Generally speaking, injuries will have more direct causes than simply a person being a member of the forces. The immediate cause of physical injury might be a bullet entering the body or a blunt object impacting on a limb. But Article 8 invites the tribunal to go further down the chain of causation than the immediate cause, because it has to be considered whether there is a ‘service’ cause, which is an abstract concept. (This is consistent with dicta in EW v SSD [2011] UKUT 186 at paragraph 31 that it is wrong to look only at the immediate or precipitating cause). In my opinion, the traditional ‘but for’ test is of assistance when identifying causes which must be considered in the application of Article 8. The question has to be asked, but for an event or process, would the injury have happened? If the answer is that the injury would not have happened without a particular event, then the event is a cause. The significance of these potential causes will be refined in later stages of the four stage test in JM (they may be discounted in stage 2 as too remote, found to be non service causes in stage 3, and (if service causes) found not to be predominant in stage 4), but they cannot just be ignored. 23.In my opinion the tribunal erred in its application of the law to the facts it found, in finding that there was only one process cause. There were other events without which the injury would not have happened, which were also causes of the injury. The tribunal had before it a submission from the appellant (at page 36 of the bundle) arguing that had she not been deployed as part of her service as Head Coach at the Army Medical Corps Championships, she would not have been at the championships (the “championships deployment” cause). She further argued that had she not actively been carrying out her coaching duties to which she had been assigned as part of her service, she would not have been standing still on the side of the piste for a prolonged period of time observing skiers and would not have been standing in the place where the French skier collided with her (the “coaching duties” cause). In paragraphs 7-13, and 18-19, the tribunal effectively accepted all of this as fact. I agree with the appellant that both the championships deployment cause and coaching duties cause were part of the NJ v Secretary of State for Defence [2018] UKUT 211 (AAC) CSAF/56/2018 9 chain of causation of the appellant’s injuries. But the tribunal failed adequately to explain why it excluded them as causes for the purposes of the application of Article 8. Rather, the tribunal says that the appellant was exposed to the same risk of being struck as any member of the skiing public on the day in question, and anyone could have positioned themselves on the side of the piste where the appellant was struck (paragraph 29). But the point is that the appellant was not there as a member of the skiing public, but as part of her service, actively coaching in the course of her duties. As the tribunal finds at paragraph 29 “There is no doubt that the Appellant would not have been standing where she was but for the fact that she was on duty in the course of her service”. It expressly finds that but for her service, in which she was actively engaged, she would not have been standing where she was hit. In my view it follows from the findings made by the tribunal that there were three causes of the appellant’s injuries at Stage 1, the championships deployment, coaching duties, and civilian collision causes. None of these three causes were so remote they fell to be discounted at Stage 2. JM Stage 3 24.I also consider that there was an error by the tribunal in its application of the law to the facts in Stage 3 of the JM test. This is the stage at which the causes identified in Stages 1 and 2 have to be categorised as service or civilian causes. The tribunal, not having identified the championships deployment and coaching duties causes as requiring to be considered, did not categorise them. They fall to be categorised as service causes, arising from the appellant’s service as a member of the forces. But I also consider that the civilian collision cause was, in the circumstances of this case, a service cause. There are a number of reasons for this finding. 24.1 While participation in skiing is not the same as being in active combat, Article 11 of the Order sets out clear parameters for when members of the forces engaged in sporting events are, or are not, exempt from an award under the AFCS. Fitness, initiative and endurance are important for the forces. Approved sporting activities may contribute to these attributes, and keep the forces fit for the work they do. Accordingly, some sporting activities are part of service, and are not excluded from the parameters of Article 8 by Article 11(5), for example where they are approved under Article 11(6). It has been said that “the fact that a claimant’s case falls within one of the exceptions to the exclusions in Article 11 is likely considerably to assist the claimant in showing that the relevant injury was caused by service…” (SM v SSD [2017] UKUT 286 at paragraph 18). 24.2 The concept of attributability may assist in deciding whether a cause is a service cause or a non service cause, as set out in JM. In this case, in contrast to other cases considered by the tribunal where causes were found to be non service causes, the appellant was actively engaged in service at the time of the accident. She was actively coaching from the side of a piste, and engaging in an approved activity. She was not, for example, skiing in her free time (in contrast to a serviceman swimming in his time off duty in SV v SSD [2013] UKUT 0541) or travelling to accommodation after coming off duty (as in EW v SSD [2011] UKUT 186, although this case was under a 2005 Order and in the Order applicable to the present case there is express NJ v Secretary of State for Defence [2018] UKUT 211 (AAC) CSAF/56/2018 10 exclusion of travel to and from work from the remit of Article 8, under Article 11), or waiting for a bus to take her to training (as in SSD v A [2016] UKUT 500). She was actually doing her job (cp EW v SSD [2011] UKUT 186 at paragraph 26 and SSD v A [2016] UKUT 500 at paragraph 44). Her injuries had a service cause, not just because she was on duty at the time, but because the accident happened as a result of her standing carrying out service activities (coaching) which put her in the range of the out of control French skier. The tribunal, in my view correctly, identified at paragraph 27 that the situation in the present case was a close parallel to an example of a service cause suggested in submissions on behalf of the SSD in JH v SSD [2017] UKUT 0140 at paragraph 27. The scenario suggested as involving a service cause in JH was a serviceman stationed in the middle of the road, directing traffic round a broken down convoy, who was then accidentally struck by a passing motorist. In exactly the same way, the appellant was standing actively carrying out her service duties (in this case coaching skiing) when a civilian struck her accidentally. 24.3 The tribunal’s reasoning for ruling out that the civilian collision was a service cause is unconvincing. In my opinion the appellant’s case is clearly distinguishable from JH v SSD [2017] UKUT 0140, where injury resulting from a road traffic accident was caused on the way back to accommodation after coming off duty (paragraph 29). It was not caused during actual service, as in this case. The tribunal failed to explain why it rejected the appellant’s position that she would not have been standing where she was for significant periods of time opening her up to collision, had she not been carrying out service duties of coaching, when it suggested in paragraph 27 that the injury was only a manifestation of a risk run by the general public. As for the tribunal’s reasoning that service merely provided the setting for the injury (paragraphs 27 and 30) or the reason the appellant was where she was, care has to be taken with dicta taken from earlier cases about ‘service merely providing the setting’. Service will frequently provide the setting in both service and non service causes. Service providing the setting therefore has limited use as a touchstone between whether an award should be made or not. The focus should instead be on the activity in which the claimant was engaging at the time, and how the injury related to that. Further, the fact that members of the public and members of the forces are exposed to risk does not exclude a person in active service from an award. For example, either a civilian member of the public or a member of the forces might be unfortunate enough to step on a land mine. I fail to see how the member of the forces would be excluded from an award if this accident happened as a result of service, merely because a member of the public might also have stepped on a land mine. 24.4 I test the conclusion that the civilian collision cause is a service cause against slightly altered facts. If one of the members of the forces who the appellant was coaching collided with her accidentally, why would this not count as a service injury? It seems to me, assuming the sporting activity was approved under Article 11(6) and no other exemption applied, that this situation would be attributable to service. Should it then make a difference that the person who collided with the appellant was a civilian? This seems to be the effect of the SSD’s submission that it was a third party civilian skier who collided with her, and so service was not the cause. In my opinion the NJ v Secretary of State for Defence [2018] UKUT 211 (AAC) CSAF/56/2018 11 appellant is not excluded from an award because it was a civilian who skied into her. The civilian collision only happened because the appellant was on the side of the piste carrying out service duties. There is no express exclusion from the AFCS for injuries caused by civilians to members of the forces, even though as noted above there are a number of specific exclusions set out in Articles 11 and 12 of the Order. It seems to me correct in principle that injuries caused by third parties or civilians should not be excluded from compensation under the AFCS, provided when properly analysed the injuries have a service cause or service is the predominant cause. Members of the forces in active service may be injured due to actions of persons not in service, or actions of other persons in service. A member of the forces on patrol duties, for example, could be hit by a car being driven by another member of the armed forces, or a car being driven by a civilian. They could be injured as a result of a hazard created by a civilian, or by a hazard created by somebody in armed service. In my view, it is not the identity of the perpetrator which is the key factor for compensation under the AFCS, but the fact that an injury suffered by a member of the forces is caused by service of their country. The focus is on a service cause, not who the perpetrator was. JM Stage 4 25.Given that all three causes identified (the championships deployment, the coaching duties, and civilian collision causes) were service causes, Stage 4 of the JM approach did not arise on the facts. The predominance test only requires to be considered where an injury is caused only partly by service. On the correct application of the law to the facts found by the tribunal, there were three service causes and no non-service causes. The only conclusion properly available to the tribunal was that the appellant’s left knee injuries sustained on 3 February 2015 were wholly caused by service. 26.Even if I were wrong that the civilian collision cause was a service cause, I would not in any event have upheld the decision of the tribunal on the basis of its “fallback” conclusion on Stage 4 (that under Article 8(2) service was not the predominant cause of the injury). In order to carry out the assessment of the contribution of differing causes to an injury for the purposes of Article 8(2), it is necessary first to identify the relevant causes. Since the tribunal had erred in Stage 1 in identifying the relevant causes, it was not in a position to carry out the Stage 4 exercise properly. In my opinion, given that the tribunal had found the appellant had been deployed as coach at the ski championships, and expressly found that she would not have been standing where she was but for the fact that she was on duty in the course of her service, the championships deployment and coaching duties causes were clearly important contributory causes. Having concluded that there was only one cause, the civilian collision, the tribunal was in the position of seeking to back up a decision it had already made when considering Article 8(2), rather than entering into an open minded assessment of whether service causes were predominant. Conclusion on error of law in the application of Article 8 NJ v Secretary of State for Defence [2018] UKUT 211 (AAC) CSAF/56/2018 12 27.In all the circumstances I find the tribunal erred in law. For reasons given above, I agree with the appellant that the tribunal erred in its approach to Article 8 of the Order; that other cases relied on by the tribunal in its refusal of the appeal are distinguishable on their facts because they concerned injuries not caused or predominantly caused by service; and that claims under the AFCS are not excluded because a civilian was part of the reason the injury happened. In so finding, I am not suggesting that all injuries caused by civilians or third parties to members of the armed forces are service injuries attracting compensation within Article 8. It will ultimately depend on the circumstances of a particular case. As set out above, I do not agree with the appellant that the tribunal should have applied a different test from the four stage test in JM. I also do not agree with the SSD that there was only one cause of the injuries and that was not a service cause. Nor do I accept that the out of control skier being a third party civilian resulted in there being no service cause in this particular case. It is not in dispute that, although skiing is a recreational sport enjoyed by the general public, coaching skiing can also be part of active duty and service in the forces. Where injury has been caused by service, a claimant qualifies for an award under Article 8. On the facts found by the tribunal, I consider that in this case, the appellant met the legal tests in Article 8 of the Order for an award of benefit. Disposal 28.This appeal before the Upper Tribunal is brought under Section 6A of the Pensions Appeal Tribunals Act 1943. Appeals lie on the ground that the decision of the Pensions Appeal Tribunal for Scotland was erroneous in point of law. By virtue of Section 6A(4A), the powers of the Upper Tribunal in this appeal are as set out in Section 12 of the Tribunals, Courts and Enforcement Act 2007. Powers include setting aside decisions and either remitting cases or re-making decisions. 29.I have identified two separate errors of law above; inadequate reasons due to the inconsistency between the Decision Notice and the Statement of Reasons, and error in the application of the law to the facts. But I have also found in paragraph 25 above that, on proper application of the law to the facts found by the tribunal, there was only one conclusion available to the tribunal. Because all of the necessary facts have been found by the tribunal, it is appropriate that I set the tribunal’s decision aside but also re-make the decision. I do so in the terms set out at the beginning of this decision. What happens next is that the SSD should make a determination of the amount of the award due to the appellant, under Article 51 of the Order. I hope that will be sufficient to finalise matters between the appellant and SSD, but in the event of any disagreement the appellant will retain any rights to request reconsideration arising under the Order, and appeal rights to the tribunal under Section 5A(1) of the Pensions Appeal Tribunals Act 1943. Signed on the original A I Poole QC on 26 June 2018 Judge of the Upper Tribunal
EP v Secretary of State for Defence (AFCS): [2017] UKUT 129 (AAC): [2017] AACR 33
[2017] AACR 33 (EP v SSD) 1 [2017] AACR 33 (EP v Secretary of State for Defence (AFCS) [2017] UKUT 129 (AAC)) Judge Knowles QC CAF/3551/2015 17 March 2017 Armed Forces Compensation Scheme – correct approach to definition of “downgraded” in article 2(1) of the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011 Tribunal procedure and practice – evidence – need to consider everything Following her enlistment in the Army in 2004 the appellant was found to have bilateral pes cavus in both feet and dysplasia in her right hip. In 2008 she claimed compensation under the Armed Forces Compensation Scheme (AFCS) which was rejected on the basis that both conditions were due to developmental abnormalities not service. The appellant was found to be fit only for limited duties on a number of occasions and in September 2009 a Medical Board examined the appellant and graded her P3 on a PULHHEEMS assessment by reason of bilateral foot pain and right hip impingement and her Medical Employment Standard (MES) was downgraded to L3, which meant that she was fit for limited duties but retained rank and pay. (PULHHEEMS is a functional assessment to determine an individual’s fitness for service within the Army and their subsequent grading for duty.) The appellant’s downgrading continued for the reminder of her service, except for a period in 2010 of less than two months when she was temporally upgraded. In 2010 the appellant’s claim for compensation for the pain in her feet was rejected by a First-tier Tribunal (F-tT), holding that her first claim concerned the same matter and any appeal was out of time. In 2013 the appellant left the service and in April 2014 she claimed compensation a third time for the pain in her hip. That claim was rejected by the Secretary of State who concluded that the appellant did not qualify for compensation under article 9 of the AFCS. The F-tT upheld that decision, holding that the worsening of the hip injury in 2012 had not been the cause of the downgrading as required under article 9(3)(d) and had not been the cause of being downgraded on all occasions. The appellant applied for permission to appeal on the grounds that she had a permanent P3 PULHHEEMS grading from 8 September 2009 until her service ended on 17 December 2013. Held, allowing the appeal, that: 1. the definition of “downgraded” focuses not simply on whether a person has been downgraded but more specifically on the result of the downgrading, namely whether a person did, as a matter of fact, undertake a reduced range of duties. Additionally downgrading could not be determined by reference to the duties which a person might be called upon to undertake but which are not part of the ordinary duties of their role (paragraphs 43, and 48 to 49); 2. the F-tT’s approach was in error of law because it failed to consider the medical evidence in detail, specifically (a) the restrictions on the appellant’s duties put in place following a PULHHEEMS assessment and (b) the restrictions set out in her MES. The tribunal determining the appeal had none of the detailed records about the various Medical Boards which considered the appellant’s fitness available to it and erred by failing to adjourn to obtain them, as all of this material should have been scrutinised alongside the appellant’s own evidence about what she thought her duties were (paragraphs 50 to 54); 3. the UT provided guidance as to how a tribunal should approach the question of whether the appellant was continually downgraded within article 9(3)(c): JN v Secretary of State for Defence (AFCS) [2012] UKUT 479 (AAC) followed (paragraphs 58 to 59). The judge set aside the decision of the F-tT and remitted the appeal to a differently constituted tribunal to be redecided in accordance with her directions. DECISION OF THE UPPER TRIBUNAL (ADMINISTRATIVE APPEALS CHAMBER) The DECISION of the Upper Tribunal is to allow the appeal by the appellant. The decision of the First-tier Tribunal on 17 September 2015 under reference AFCS/00325/2015 involved an error on a material point of law and is accordingly set aside. [2017] AACR 33 (EP v SSD) 2 The appeal is remitted for re-hearing by a differently constituted First-tier Tribunal before a differently constituted tribunal in accordance with the directions set out at the conclusion of these Reasons. This decision is given under section 12(2)(a) and 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007. REASONS Introduction 1. This appeal considers the correct approach to the definition of “downgraded” in article 2(1) of the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011 (SI 2011/517) (“AFCS”) which should be taken by the First-tier Tribunal [“the tribunal”]. It also addresses the information about that issue which should properly be before the tribunal at a hearing. 2. I have concluded that the definition of “downgraded” focuses not simply on whether a person has been downgraded but more specifically on the result of the downgrading, namely whether a person did, as a matter of fact, undertake a reduced range of duties. Additionally downgrading cannot be determined by reference to the duties which a person might be called upon to undertake but which are not part of the ordinary duties of their role. 3. The tribunal’s approach was in error of law because it failed to consider the medical evidence in detail, specifically (a) the restrictions on a person’s duties put in place following a PULHHEEMS assessment and (b) the restrictions set out in a person’s MES (“Medical Employment Standard”). The tribunal determining the appeal had none of the detailed records about the various Medical Boards considering the appellant’s fitness available to it and erred by failing to adjourn to obtain these. All of this material should have been scrutinised alongside the appellant’s own evidence about what she thought her duties were. 4. I provide some guidance as to how the tribunal should approach the question of whether the appellant was continually downgraded within article 9(3)(c) and rely on the analysis of Upper Tribunal Judge Mesher in JN v Secretary of State for Defence (AFCS) [2012] UKUT 479 (AAC) which imports a degree of flexibility into that factual assessment. 5. I set the tribunal’s decision aside and remitted it for re-hearing by a freshly constituted tribunal. I rejected the submission by the respondent Secretary of State that the tribunal’s error of law was not material because the appellant could not meet the requirements of article 9 in relation to her hip condition. I did so because that submission rested both on facts found by the tribunal as the result of an erroneous process and on a view of the medical evidence uninformed by the input of the specialist members of the tribunal Background 6. The factual background pertinent to this appeal is summarised as follows. The appellant before the Upper Tribunal was a former member of the King’s Troop and the respondent was the Secretary of State for Defence. I will refer to the parties as “the appellant” and “the respondent” respectively. [2017] AACR 33 (EP v SSD) 3 7. The appellant enlisted in the Army on 9 December 2004 and joined the King’s Troop, a ceremonial troop based in London. Her trade within the King’s Troop was that of a specialist horsewoman. She left the Army on 17 December 2013 having taken voluntary redundancy. 8. The appellant has developmental abnormalities in both her feet (bilateral pes cavus) and her right hip (dysplasia). She first reported pain in her feet during initial training and this was found to be due to the abnormalities in her feet. At one stage it was suggested that her hip pain might be linked to that in her feet but it was subsequently found to be due to a separate condition. 9. There were a number of occasions between 2005 and 2013 when the appellant was found to be fit for limited rather than full duties. The first occasion on which this was attributed to hip pain was on 3 July 2008 when she was certified as unfit for work for 21 days. On 8 January 2009 she was found to be unfit due to hip pain for 11 days. On 7 November 2012 she was found to be fit for limited duties for 21 days thereafter. She was also found to be unfit for duty for a day on 6 February 2013. 10. The appellant’s MES was the key indicator of her fitness for duty within the requirements of her trade as a soldier. On 8 September 2009 a Medical Board examined the appellant and graded her P3 on a PULHHEEMS assessment. The reason for that grade was bilateral foot pain following a foot operation in June 2009 and right hip impingement following a right hip arthroscopy in December 2008 (page 265). The Board said that she was restricted in carrying out her general military duties and the duties of her trade. Specific restrictions were noted, namely that she was unfit for combat field training, battlefield training, field exercises, all runs, and heavy lifting. She was permitted to wear trainers. Her MES was grade L3 which meant that she was fit for limited duties as specified by the Board. Her P3 and L3 grading was described as permanent with a review after 12 months (reverse of page 153). 11. Subsequently the appellant remained downgraded at P3 and L3 (apparently permanently) until 4 October 2012. The cause of this continued downgrading was recorded to be foot pain. On 4 October 2012 the appellant was upgraded to P2 and L1 in order to go on a leadership course with the aim of being promoted. The appellant reported that she was told she would be temporarily upgraded but would be downgraded if things did not work out on the leadership course (page 130). There is some support for the appellant’s account in the medical records. On 15 October 2012 the medical records revealed the appellant to be suffering from hip pain which had been aggravated by her leadership course (reverse of page 177). On 22 November 2012, on account of hip pain, the appellant was regraded P3 and L3. She was found not to be fit for mucking out, sweeping or guard duty and was unable to stand for more than 30 minutes without a ten minute break. She remained downgraded for the rest of her time in service. 12. The appellant made two claims for compensation under the AFCS during her period of service. The first was made in September 2008 and concerned both foot and hip pain. It was rejected on 1 December 2008 on the grounds that the problems were due to underlying developmental abnormalities and so were not caused by service. 13. The second claim was made in February 2010 and limited to the appellant’s problems with her feet. This was rejected in 6 May 2010 because it related to the same problems which had previously been the subject of the first claim. The tribunal determined that it had no jurisdiction to hear the appellant’s appeal as this was, in substance, an appeal against the decision dated 1 December 2008 and was therefore outside the absolute 12 month time limit provided for [2017] AACR 33 (EP v SSD) 4 in rule 21(4) of the Tribunal Procedure (First-tier Tribunal) (War Pensions and Armed Forces Compensation Chamber) Rules 2008 (SI 2008/2686). 14. The third and current claim was made in April 2014 and related to the appellant’s hip pain only. The respondent considered whether the appellant qualified for compensation under article 9 of the AFCS due to worsening of her hip condition but concluded that any worsening was not due to service. The claim was rejected on 8 July 2014 and that decision was maintained on reconsideration. The tribunal decision 15. The hearing took place on 17 September 2015 and the appellant gave oral evidence. The tribunal upheld the respondent’s conclusion that the worsening of the appellant’s hip injury was not made worse by service. 16. The tribunal noted that both parties accepted that service did not cause the condition for which the appellant had made a claim. That position was grounded in the medical evidence which showed that her hip condition (dysplasia) was a developmental structural abnormality of the appellant’s hip which had been present before service started. The appeal would only succeed if the appellant could show that this condition was made worse by service. 17. The tribunal analysed article 9 of the AFCS and excluded articles 9(1)(a) and 9(1)(c) as applying to the appellant’s circumstances. It found that article 9(1)(b) applied, as the appellant’s hip condition was present before the appellant entered service but she was not aware that she had such a condition and it was not revealed at the entry medical examination. 18. The tribunal referred to the definition of “downgraded” in article 2(1) and went on to consider the appellant’s service record. That scrutiny encompassed both the duties undertaken by a member of the King’s Troop and the periods during which the appellant had been downgraded for various reasons (paragraphs 13–18). In summary the tribunal found that the appellant had long periods of many months when she undertook full duties. 19. It concluded in paragraph 19 as follows: “The worsening of the hip injury in 2012 was not the problem that was the cause of the previous downgradings as is required to be shown by article 9(3)(d) because her hip condition was not the cause of being downgraded on all occasions. She was mostly downgraded because of treatment and operations to her feet. In 2008 she had an arthroscopy of her right hip and some shaving done for the dysplasia. She was therefore downgraded for the period of the operation and recovery but returned to full duties thereafter. Most of the downgrading was because of the feet problem. In 2012 [the appellant] sought advice regarding her right hip as it had starting aching again especially when lying on it at night and after runs. She was still doing full duties as at 4 October 2012. After October 2012 she was downgraded and stayed downgraded until discharge from the service. This was because of her hip. She was not therefore downgraded for her hip condition within five years of starting service.” 20. Thus the tribunal decided that the appellant did not satisfy article 9 on a number of grounds and it dismissed her appeal. [2017] AACR 33 (EP v SSD) 5 The appeal to the Upper Tribunal 21. The appellant applied for permission to appeal on the grounds that she had a permanent P3 PULHHEEMS grading from 8 September 2009 until her service ended on 17 December 2013. Thus the tribunal had been in error in deciding that she did not fulfil the definition of downgraded throughout this period as, in addition to their ceremonial duties, King’s Troop men and women were trained and required to be medically fully deployable as fighting soldiers and, in order to be medically deployable as such, they required a P2 PULHHEEMS grading. 22. Permission to appeal was refused by the tribunal on the basis that the tribunal had been correct to treat downgrading as a question of fact not determined by PULHHEEMS grading. I granted permission to appeal on 5 February 2016, noting that, given the wording of article 2(1), a PULHHEEMS grading could not be determinative of whether and for how long the appellant was downgraded. However I sought submissions on the following matters: a) the correct approach to the definition of “downgraded” in article 2(1) of the AFCS; b) the relevance of the duties for which the appellant was found to be fit or unfit; c) the adequacy of the tribunal’s findings of fact in relation to whether the appellant’s downgrading was “continual”; d) the adequacy of the tribunal’s findings of fact about whether the appellant’s hip condition was the predominant cause of her downgrading; and e) the appropriate disposal of the appeal. 23. I held an oral hearing of this appeal on 28 October 2016. At the hearing the appellant was represented by Mr Glynn Tucker of the Royal British Legion and the respondent by Miss Galina Ward of counsel. During the course of the hearing it became apparent that further submissions were required to address (a) how the tribunal should approach its task when considering the question of downgrading and (b) the adequacy of the information before the tribunal hearing this appeal. Both parties made further written submissions on these issues following the hearing. 24. As a result of the additional submissions made, it has not been necessary for me to undertake an individual analysis of each of the matters set out in [22] above. With one exception, all are subsumed in what I have to say both about the tribunal’s approach to downgrading and about the disposal of this appeal. 25. I am very grateful to both representatives for their very helpful written and oral submissions. The relevant legal framework 26. The AFCS came into force on 9 May 2011, replacing an earlier version of the Scheme. Article 9 is entitled “Injury made worse by service” and reads as follows: “(1) Subject to articles 11 and 12, benefit is payable to or in respect of former member of the forces by reason of an injury made worse by service if the injury – (a) was sustained before the member entered service and was recorded in the report of the medical examination when the member entered service, [2017] AACR 33 (EP v SSD) 6 (b) was sustained before the member entered service but without the member’s knowledge and the injury was not found at that examination, or (c) arose during service but was not caused by service and in each case service on or after 6th April 2005 was the predominant cause of the worsening of the injury. (2) Benefit is only payable under paragraph (1) if the injury has been worsened by service and remains worsened by service on – (i) the day on which the member’s service ends; or (ii) the date of claim if that date is later. (3) Subject to paragraph (4), in the case of paragraph (1)(a) and (b), benefit is only payable if – (a) the member or former member was downgraded within the period of five years starting on the day which the member entered service; (b) the downgrading lasted for a period of at least 6 months (except where the member was discharged on medical grounds within that period); (c) the member or former member remains continually downgraded until service ends; and (d) the worsening was the predominant cause of the downgrading. (4) In the case of paragraph (1)(a) or (1)(b), benefit is not payable if the injury is worsened – (a) within 6 months of the day service commenced; or (b) 5 years or more after that day. (5) In the case of paragraph (1)(c), benefit is only payable if the member – (a) was downgraded within the period of 5 years starting on the day on which the member sustained the injury and remains continually downgraded until service ends; and (b) the worsening was the predominant cause of the downgrading.” 27. “Downgraded” is defined in Article 2(1) as meaning “downgraded for medical reasons as a result of which the person downgraded undertakes a reduced range of duties but retains rank and pay”. Other relevant matters 28. The MES is associated with the PULHHEEMS system of assessment used within the Army to determine fitness for service. I have been provided with the PULHHEEMS [2017] AACR 33 (EP v SSD) 7 Administrative Pamphlet 2010 (“the Pamphlet”) which gives details of the system. As paragraph 0104 of the Pamphlet makes plain, this system is designed to: “a) Provide a functional assessment of the individual’s capacity for work; b) Assist in expressing the physical and mental attributes appropriate to the individual’s employment and fitness for deployment on operations within the Army; c) Assist in assigning people to the employment for which they are most suited in light of their physical, intellectual and emotional make-up allowing efficient use of manpower; and d) Provide a system which is administratively simple to apply.” 29. Medical classification under the PULHHEEMS system is considered and recorded under the following categories: Physical capacity (P) Upper Limbs (U) Locomotion (L) Hearing (HH) Eyesight (EE) Mental Capacity (M) and Stability (S). 30. Following a PULHHEEMS assessment, a service man or woman is graded as follows: P2: medically fit for unrestricted service worldwide; P3: medically fit for duty with minor employment limitations; P4: medically fit for duty within the limitations of pregnancy; P7: medically fit for duty with major employment limitations; P8: medically unfit for service; and P0: medically unfit for duty and under medical care. Grades P5 and P6 are no longer in use. It should be noted that an individual’s P grade may be either permanent or temporary, the latter being annotated by a T suffix. 31. The P3 grade is described as being used for an individual who has a medical condition that prevents him/her from undertaking the full range of military duties. Such individuals are able to perform useful duties in barracks but may not be able to carry out all aspects of their employment and may require medication or medical follow-up. A P2 grade by contrast denotes the absence of a medical condition or physical limitation that would prevent the soldier undertaking all aspects of his/her military duties (paragraphs 0107–0108, the Pamphlet). 32. Associated with the PULHHEEMS assessment is the award of a Joint Medical Employment Standard (“JMES”) grading in order to inform commanders and career managers about the employability and deployability of service personnel. Paragraph 0123 of the Pamphlet sets out the Medical Deployment Standard which consists of three categories as follows: a) MFD: medically fully deployable, awarded when the P category is P2; [2017] AACR 33 (EP v SSD) 8 b) MLD: medically limited deployable, awarded when P category is P3 or exceptionally P7; c) MND: medically not deployable, awarded when P category is P0, P4, P7 and P8. 33. The Medical Deployment Standard is complemented by the MES which relates an individual’s PULHHEEMS profile to the requirements of their branch/trade in the air, land and maritime environments. The appellant was a specialist equestrian soldier and as such fell to be categorised in the Land (“L”) environment. This has five grades as follows: L1: fit for unrestricted duty; equating to P2; L2: fit for unrestricted duties but with a medical risk marker, equating to P2; L3: fit for limited duties but with some restriction subject to medical risk assessment, equating to P3 or P7; L4: fit for specific limited duties within branch/trade, equating to P4 or P7; L5: unfit for service in the land environment, equating to P0 or P8. 34. The allocation of a PULHHEEMS assessment is a medical responsibility and a change of MES will usually be determined by a Medical Board (see paragraph 0201 of the Pamphlet). 35. In this case the appellant was, at all times during her service in the Army, graded as either P2 or P3. A grading of P3 is not an automatic bar to deployment but will depend on an assessment of the individual’s circumstances at the time of deployment (see paragraphs 0511– 0512 of the Pamphlet). Summary of the parties’ positions 36. The appellant submitted that the primary duty of all soldiers was to be deployable for world-wide posting at any time and relied on paragraph 9.260 of the Queen’s Regulations for the Army 1975 which states that: “The assignment of soldiers is based on the principle that a soldier must be available for world-wide posting at any time, this being one of the conditions of service he accepted on enlistment. If circumstances are such that a soldier cannot comply with this condition he will normally be terminated or transferred to the Reserve no matter how good a soldier he may be in other respects.” She submitted that the tribunal erred by failing to take account the primary duty to be available for world-wide posting at any time. 37. She also criticised the adequacy of the tribunal’s fact finding in circumstances where the tribunal did not have available to it a complete set of records relating to the appellant’s PULHHEEMS grading. She maintained that she had been continually downgraded from 8 September 2009 to the end of service. 38. Finally she maintained that, in circumstances where the respondent accepted that the tribunal had adopted an incorrect approach to the question of downgrading, the correct disposal should be to remit the appeal to the tribunal for re-hearing based on the correct approach to that issue. [2017] AACR 33 (EP v SSD) 9 39. Initially, the respondent maintained that the tribunal had adopted the correct approach to the issue of downgrading. The appellant did not meet that definition by reason of her hip injury save during very limited periods of time. There was no material difference between the terms “continual” and “continuous” for these purposes. The tribunal made no finding that the worsening of the appellant’s hip condition was the predominant cause of her downgrading because it determined she was not entitled to benefit under article 9 in any event. 40. At the hearing I queried whether the tribunal’s assessment was sufficiently holistic because it was based on the appellant’s oral evidence and had not involved a detailed examination of her medical records, the reasons for her grading of P3 or what duties she had been medically assessed as being fit to undertake. In his final written submissions, the Secretary of State accepted that the tribunal had failed to take into account all of the material relevant to the question of downgrading. 41. However he maintained that the failure to do so was not a material error of law because the appellant was not downgraded predominantly because of her hip condition until November 2012 and thus could not satisfy the entitlement condition in article 9(3)(a) (downgrading within five years of the date she entered service). The tribunal’s approach to downgrading 42. This engages two distinct matters: first, the definition of “downgraded” in Article 2(1); and second, the scope of the tribunal’s enquiry in order to establish whether a person has actually been downgraded so as to meet the entitlement criteria in article 9. (a) Definition 43. The wording of article 2(1) – “downgraded for medical reasons as a result of which the person downgraded undertakes a reduced range of duties but retains rank and pay” – focuses not simply on whether a person has been downgraded but more specifically on the result of the downgrading: does the person as a matter of fact undertake a reduced range of duties? Further, the definition refers to the duties that the person undertakes and not the duties for which the person is fit. 44. The appellant submitted that downgrading should be determined by reference to the duties which a person might theoretically be called upon to carry out such as being deployed world-wide at any time. It was in that context she relied on paragraph 9.260 of the Queen’s Regulations 1975. The respondent, in contrast, submitted that, if downgrading were to be determined by reference to duties a person might theoretically be called upon to do but which were not part of the ordinary duties of their role, then the definition would be deprived of practical meaning. 45. In the appellant’s later submissions Mr Tucker refined his argument in the following manner. He accepted the Secretary of State’s submissions that downgrading must consider the duties a person undertakes during the period of downgrading compared to the duties ordinarily expected of a person of the same rank in the same troop. However, he submitted that this must also include the duty of all serving soldiers to maintain the required levels of fitness to allow deployment at any time. [2017] AACR 33 (EP v SSD) 10 46. I do not find reliance on the Queen’s Regulations persuasive. Those Regulations “lay down the policy and procedure to be observed in the command and administration of the Army” and “provide commanding officers with direction on the command and administration of their units” (paragraph 1, Queen’s Regulations 1975). These Regulations, which I have perused, are largely concerned with organisational matters and matters of discipline. Moreover, the Regulations do not address procedures for medical grading and downgrading. The paragraph relied upon by Mr Tucker is located within Part 5: Assignment of Soldiers which concerns itself with where soldiers may be posted either at home or abroad. In that context, I doubt whether paragraph 9.260 can be relied upon to support Mr Tucker’s argument about downgrading. I am of the opinion that it means simply that a soldier cannot as a matter of discipline make himself/herself unavailable for a particular posting – whether a person will be allocated to a particular posting will depend on a person’s MES. 47. Mr Tucker’s refined submission – that the duty of serving soldiers to maintain required levels of fitness to allow for deployment is a matter to which the tribunal should have had regard in this case – is one which carries some weight. The tribunal focussed on the ceremonial duties carried out by the appellant and not on other ordinary duties, one of which might well have been for the appellant to maintain basic fitness or even combat fitness. In this context I note that the September 2009 Medical Board Notice included restrictions applying to the appellant’s basic fitness and combat fitness. Unfortunately the tribunal could not examine this aspect of the appellant’s functioning and related duties properly since it lacked the material generated by the various Medical Boards which would have explained if and how the appellant’s duties were restricted. 48. Though the medical records shed some light on this issue, I consider it possible that the tribunal may have been misled by the phrase which regularly appeared in the appellant’s records – “Fit for full duties within current MES”. In fact the appellant’s MES was restricted following the Medical Board in September 2009 in the manner described in [10] above but the tribunal did not have available to it the MES generated by that Board and indeed subsequent Boards in order that it could make well-reasoned findings about what duties the appellant undertook at any given time whilst downgraded. 49. Taking into account the matters set out in [41] above, I find that this approach to the definition of downgrading is also consistent with the structure of PULHHEEMS. A person graded P3 may be deployed but this would depend on an assessment at the time of the proposed deployment. I agree with the respondent that the potential result of that hypothetical future assessment cannot determine whether a person is or is not downgraded for the purposes of the AFCS at any given time. It is furthermore important that a tribunal considers the broad range of duties – such as maintaining basic fitness – which a person has to carry out whilst downgraded rather than just those relevant to a person’s trade within service. A clear, well-reasoned determination about what those duties actually were is a vital aspect of the tribunal’s approach to the issue of downgrading. (b) Scope of the tribunal’s enquiry into downgrading 50. This enquiry has at its heart a factual assessment of the range of duties undertaken by a person during the period of downgrading. These duties are then to be compared to the duties ordinarily expected of a person of the same rank in the same troop. I find that the term “downgrading” self-evidently means that a person’s PULHHEEMS grade and indeed their MES will be of key importance to that exercise. [2017] AACR 33 (EP v SSD) 11 51. In this case however, the tribunal’s enquiry was flawed for a number of reasons as both parties now accept. Its enquiry was based largely on the appellant’s oral evidence and some scrutiny of the medical records. Though the tribunal made reference to the PULHHEEMS gradings, what was not available to it was medical evidence relating to each and every occasion that the appellant had been downgraded – the details of all the PULHHEEMS assessments prior to November 2012 were missing as were the Medical Board records. Those records would have contained details of the restrictions on a person’s ability to perform general military duties and their ability to perform the duties specific to their trade. I note that the form for notifying the outcome of a Medical Board to a person’s unit made specific reference to limitations for Physical Training as well as for functional activities, suggesting that the maintenance of physical fitness is or may be an important aspect of a person’s duties. 52. Examination of medical records containing details of occasions when the appellant had been downgraded; the reasons for that downgrading; and the duties from which a person was either restricted or which a person was assessed as medically fit to undertake were all matters which, I find, were relevant to the tribunal’s enquiry into downgrading. If the duties for which a person had been found to be unfit at the time of the assessment of their MES formed part of their ordinary duties, that person would be downgraded within article 2 of the AFCS if they continued in the same employment with retained rank and pay but subject to the new MES. 53. Evidence relating to earlier periods of downgrading was not submitted to the tribunal by the respondent as it was asserted by him that the reason for downgrading prior to November 2012 was the appellant’s foot condition and not her hip. It was, however, the case that the appellant remained graded at P3 following the surgery to relieve her foot pain and, in fact but not known to the tribunal because of the medical records missing from the bundle, the appellant was downgraded in 2009 in part because of hip pain. Despite this, the tribunal found that the appellant had not been downgraded for the purposes of the AFCS based on her oral evidence that she returned to full duties prior to November 2012. Mr Tucker submitted that, in these circumstances, the tribunal should have adjourned for the medical evidence about downgrading prior to November 2012 to be placed before it. I agree particularly as that material was necessary to establish the extent of the duties which the appellant was required to undertake within her MES. 54. In conclusion I find that the tribunal’s enquiry into the facts surrounding the appellant’s downgrading during service was materially inadequate for the reasons I have explained. I find it really surprising that it should have undertaken that enquiry in the absence of medical evidence (a) detailing the PULHHEEMS assessments and (b) providing the details of the restrictions placed upon the appellant’s duties by the various Medical Boards. In particular its conclusion that, despite her P3 grade, the appellant had not been downgraded prior to November 2012 required reasoning based on the contents of the medical records to which I have referred. Its failure to adjourn to obtain those records was baffling. The meaning of “continual” in article 9(3)(c) and 9(5)(a) 55. The appellant contended that I should hold that “continual” did not mean literally nonstop or uninterrupted, applying [28] of MC v Secretary of State for Defence (WP) [2009] UKUT 173 (AAC); [2010] AACR 20. This was a case which considered the meaning of the word “continual” contained in Article 8(5) of the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 2006 (SI 2006/606). With the agreement of the parties in that [2017] AACR 33 (EP v SSD) 12 case, Upper Tribunal Judge Levenson held that, for the purpose of article 8 which concerned itself with entitlement to constant attendance allowance, “constant” and “continual” did not mean literally non-stop or uninterrupted. 56. In contrast the respondent argued that “continual” should be given its ordinary dictionary meaning which was “without interruption”. At the hearing Ms Ward argued that the meaning of “continual” in MC did not apply because (a) that meaning was specific to a care situation and (b) its meaning was heavily influenced by the meaning given to it in the entitlement criteria for disability living allowance and attendance allowance, namely something more like “frequently recurring”. It will be apparent from what follows that I accept Ms Ward’s submission that MC was situation specific and thus not widely applicable. 57. In my grant of permission I posed the question of whether there was any difference between “continual” as opposed to “continuous”, the latter word being the one used by the tribunal when stating that the appellant had not been downgraded “continuously” from the point at which she was first found unfit to undertake full duties in December 2006 (paragraph 17, statement of reasons). The respondent provided two extracts from the Oxford Dictionary in relation to each word which identified that both words can mean “without interruption”. However “continuous” was more prominent in that respect than “continual” which typically meant “happening frequently with intervals between” (page 310). 58. I must not read “continual” as it appears in article 9(3)(c) in isolation. That provision – “the member or former member remains continually downgraded until service ends” – appears to describe, a continuing state of affairs, hence the use of the word “remains”. However, as an aid to interpretation, I adopt the analysis of Upper Tribunal Judge Mesher contained in [38] of JN v Secretary of State for Defence (AFCS) [2012] UKUT 479 (AAC) where he considered the meaning of article 8(5) of the AFCS 2005. I note that article 8(5) in that Scheme is mirrored by article 9(5) in the 2011 AFCS. Both articles require downgrading within the period of five years starting on the day on which the member sustained the injury and (my emphasis) remaining continually downgraded until service ends. There is thus a direct comparison with the wording in article 9(3)(c) in the AFCS 2011 applicable to the appellant. 59. Applying the analysis of Upper Tribunal Judge Mesher, there seems no reason why the test of remaining continually downgraded should be satisfied only when the level of downgrading remains constant either in the sense of being unchanging or becoming more severe. It could lead to perverse or arbitrary results if a person were to be excluded from entitlement just because there were subsequent periods when the downgrading was less severe providing that some degree of downgrading remains continually in force until the end of service. What Upper Tribunal Judge Mesher’s analysis helpfully does is to incorporate a degree of flexibility into the enquiry required by the tribunal. Whether downgrading was continual or not is a matter of fact for the tribunal – what in fact were the duties undertaken by the person and were they reduced in comparison to those undertaken by a person of the same rank in the same troop? The tribunal will be astute to examine what lies beneath fluctuations in grading; to grapple with exactly what duties the person actually performed; and to guard against the potentially perverse outcome outlined above. The impact on the tribunal’s decision 60. What impact does the tribunal’s erroneous approach to downgrading have on its decision in this appeal? The respondent submitted that the error was not material because, first, the [2017] AACR 33 (EP v SSD) 13 evidence showed that the downgrading had not been continual and, second, the appellant was not downgraded predominantly because of her hip condition until November 2012. In those circumstances the appeal should be dismissed. The appellant took issue with both of these submissions and invited me to remit the matter to the tribunal for a complete re-hearing. 61. In response to my direction at the conclusion of the oral hearing, the respondent produced documents detailing some but not all of the various PULHHEEMS gradings applied to the appellant during her service career and also the outcome of various Medical Boards. The assessment leading to a P3 grading dated 28 September 2011 cannot be found within the appellant’s service records. This material was not before the tribunal. 62. Both the matters relied upon by the respondent are classic matters of fact ordinarily requiring a determination by the tribunal following an assessment of all the evidence in this appeal. In circumstances where the tribunal adopted an erroneous approach to downgrading based on incomplete oral and documentary evidence, I cannot see how I am in a position to rely on any of the facts found by the tribunal or indeed, without the benefit of sitting with a medical and a service member, to maintain the tribunal’s decision and dismiss this appeal. 63. The respondent submitted that the appellant had not been continually downgraded because the evidence showed she had been assessed as P2 on 4 October 2012 until 22 November 2012. The appellant pointed out that the P2 grade had been given in order to allow the appellant to attempt to pass a combat fitness test and was thus nothing more than a temporary grading. The attempt failed within two weeks of 4 October 2012 (page 144). The status of the P2 grade within the context of the appellant’s lengthy history of being downgraded and its effect on whether the appellant remained continually downgraded within the meaning of article 2(1) are matters of fact for the tribunal to determine, taking into account all of the evidence before it and in the light of my analysis of the meaning of the words “continually downgraded” in article 9(3)(b). I am in no position sitting alone to come to a conclusion on these issues of fact. 64. Likewise I find myself in difficulty in relying on the tribunal’s finding that the appellant was not downgraded because of her hip condition but predominantly because of her foot condition. Those were findings it came to following a flawed approach to the issue of downgrading as I have already said. There is material in the medical records which indicates ongoing hip problems following the Medical Board in 2009 (see for example, the entry at 28 June 2011 which makes reference to deep hip joint discomfort and that of 29 September 2011 which gives a diagnosis of hip dysfunction with associated biomechanical involvement and associated weakness). It seems to me that the predominant cause of downgrading remains a matter for a tribunal re-hearing this matter to determine. 65. For all these reasons, I have come to the clear conclusion that the tribunal’s erroneous approach to the issue of downgrading was a material error of law. It follows that I allow this appeal, set the tribunal’s decision aside and remit the appeal for a complete re-hearing by a freshly constituted tribunal. Conclusion 66. For the reasons explained above, I allow the appellant’s appeal against the tribunal’s decision and I set that decision aside. The appeal is remitted to a freshly constituted tribunal for a complete re-hearing. [2017] AACR 33 (EP v SSD) 14 DIRECTIONS 1. The re-hearing should be an oral hearing and should be arranged within a reasonable time scale. 2. The new First-tier Tribunal should not involve the tribunal judge and members who considered the appeal on 17 September 2015. 3. If the appellant has any further written evidence, particularly any evidence relevant to her medical condition whilst in service, to put before the tribunal, it should be sent to the tribunal office at Fox Court, 14 Grays Inn Road, London, WC1X 8HN within one month of the issue of this direction. 4. The new tribunal must deal with any procedural questions, as may arise, on their merits. 5. The tribunal must consider all aspects of the case, both fact and law, entirely afresh and is not bound in any way by the decision of the previous tribunal. 6. These directions may be supplemented by further directions by a Tribunal Judge in the War Pensions and Armed Forces Compensation Chamber of the First-tier Tribunal.
Secretary of State for Defence v CM (WP): [2017] UKUT 8 (AAC); [2017] AACR 27
[2017] AACR 27 (SSD v CM) 1 [2017] AACR 27 (Secretary of State for Defence v CM (WP) [2017] UKUT 8 (AAC)) Judge Rowland CAF/2584/2015 6 January 2017 CAF/3213/2015 CAF/3234/2015 War pensions – widow’s pension – whether constant attendance allowance or unemployability supplement can have been “payable” to the deceased if successful claim not made by him – whether appeal in respect of widow’s pension can be treated as a posthumous appeal in respect of constant attendance allowance War pensions – constant attendance allowance – eligibility when a need for attendance arises both from accepted conditions and from another condition In all three cases the claimant was the widow of a former member of the Armed Services who had been receiving payments of retired pay or pension under article 6 of the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 2006 based upon their having either 90 per cent or 100 per cent disablement. Each of the deceased had claimed constant attendance allowance (CAA) but the claims had been disallowed and they had not appealed. All three claimants applied for a war widow’s pension under article 23 of the Order but were unsuccessful. In each case the Secretary of State decided that the deceased’s death was not due to service. He also received advice that the deceased would not have satisfied the conditions for entitlement to CAA for at least 26 weeks before his death had he made another claim. The claimants all appealed to the First-tier Tribunal (F-tT). In the first case, the claimant having referred to allowances that her husband had had, the Secretary of State said that the deceased had had an underlying entitlement to unemployability supplement but submitted that it was not “payable” for the purposes of article 22(4) so as to entitle his widow to a widow’s pension because he had had an allowance for lowered standard of occupation. The F-tT awarded a widow’s pension on the ground that the deceased had satisfied the conditions for entitlement to CAA for at least 26 weeks before his death because his needs for attendance had arisen not only from lung cancer that was not attributable to service but also from conditions attributable to service. In the other two cases too, the F-tT considered whether the deceased had satisfied the conditions for entitlement to CAA for at least 26 weeks before his death, allowing one appeal on the ground that the deceased had done so and that therefore article 22(3) was satisfied but dismissing the other on the ground that the deceased had not done so. The Secretary of State appealed to the Upper Tribunal (UT) in the first two cases and the claimant in the other. The UT allowed the claimant’s appeal in the third case on the ground that the F-tT had failed to give reasons for not finding that the deceased’s death had been due to service but deferred consideration of the question of the scope of the remitted appeal. In all three cases, the Secretary of State submitted that his practice of awarding a pension to a widow whose husband’s disablement had been assessed as at least 80 per cent if he would have satisfied the conditions for entitlement to CAA for at least 26 weeks before his death had he made a claim was a concession made under the dispensing instruments and that article 22(3) of the Order had not been satisfied in any of the cases because CAA was not “payable to [the deceased] in respect of a period ending with his death”. Held, allowing the Secretary of State’s appeals and giving a further direction in the claimant’s appeal, that: 1. the right of appeal in section 1(3) or (3A) of the Pensions Appeal Tribunals Act 1943 against a decision that death was not due to service extended to a decision that death could not be treated as having been due to service (paragraph 13); 2. CAA could not be regarded as “payable” for the purposes of article 22(3) of the 2006 Order unless there had been a successful claim for the allowance (which could be determined posthumously) because article 34 required there to be a claim for CAA before an award could be made (paragraphs 18 to 22); 3. similarly, unemployability supplement was not “payable” to the first claimant’s husband for the purposes of articles 15(4) and 22(4) of the 2006 Order because there had been no claim for it, whereas “eligible” in articles 15(5) and 27(1)(b)(ii) meant “entitled but for having made a claim” (paragraphs 33 to 36); 4. an appeal against a rejection of a widow’s pension claim could be treated as having been also a posthumous appeal against the rejection of a claim for CAA, provided that the appeal had been made within the [2017] AACR 27 (SSD v CM) 2 time limit for such a posthumous appeal, and the claimants in the first two cases would be treated as having brought such appeals, the third claimant having been irredeemably out of time for doing so (paragraphs 40 and 48 to 60); 5. there was no right of appeal under section 1(3) or (3A) of the Pensions Appeal Tribunals Act 1943 against a decision not to make a payment under a dispensing instrument, even if the decision was expressed in terms of the deceased’s death not being treated as having been due to service (paragraphs 77 and 78); 6. while article 8 of the 2006 Order did not directly address dual causation in relation to CAA, considering whether the “accepted disablement” was the main factor in the overall need for attendance was an approach capable of taking account of the extent to which different disabilities might interact with each other (paragraph 107); 7. in the first case, the F-tT had given inadequate reasons for finding that the deceased had been eligible for CAA before his death because it had not made a finding as to whether the contribution of his disablement due to the accepted conditions was sufficient to have qualified him for at least the part day rate of CAA (paragraph 108). In the Secretary of State’s appeals, the judge set aside the decisions of the F-tT, remitting the first case to the F-tT and directing a further submission in the second case. In the third claimant’s appeal, the judge directed that the remitted case be decided in accordance with his reasoning, so that whether her husband had been eligible for CAA in the period before he died was irrelevant to her entitlement to a widow’s pension. DECISION OF THE UPPER TRIBUNAL (ADMINISTRATIVE APPEALS CHAMBER) The Secretary of State for Defence was represented by Mr Tim Buley of counsel, instructed by the Government Legal Department. The claimant in the first case was represented by Mr Hugh Lyons, solicitor, of Baker & McKenzie, acting pro bono on behalf of the Royal British Legion. The claimant in the second case was represented by Mr Chris Francis of the Royal Air Forces Association. The claimant in the third case was represented by Mr Glyn Tucker of the Royal British Legion. Decisions: In the first case, on file CAF/2584/2015, the Secretary of State’s appeal is allowed. The decision of the First-tier Tribunal dated 8 May 2015 is set aside and the case is remitted to a differently-constituted panel of the First-tier Tribunal to be redecided in accordance with my reasoning below on the basis that the claimant has brought an appeal against the decision dated 21 November 2013 refusing her husband constant attendance allowance as well as an appeal against the decision dated 6 August 2014 refusing her a widow’s pension. In the second case, on file CAF/3213/2015, the Secretary of State’s appeal is allowed to the extent that the decision of the First-tier Tribunal dated 21 July 2015 is set aside and I direct the Secretary of State to make a submission within one month as to the final decision that I should make in consequence. In the third case, on file CAF/3234/2015, I have already allowed the claimant’s appeal and remitted the case to the First-tier Tribunal. I therefore merely direct that the remitted case be decided in accordance with my reasoning below. [2017] AACR 27 (SSD v CM) 3 REASONS FOR DECISIONS 1. In each of these three cases, the claimant is the widow of a former member of the Armed Forces. At the date of his death, each claimant’s husband was receiving payments of retired pay or pension under article 6 of the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 2006 (SI 2006/606 – “the 2006 Order”) based on an assessment of 90 per cent disablement (in the first case) or 100 per cent disablement (in the other two cases) but was not receiving payments of either a constant attendance allowance under article 8 or an unemployability allowance under article 12, although each had made an unsuccessful claim for constant attendance allowance. 2. The widows each claimed a war widow’s pension and their cases were referred to medical advisors who refused to certify that death was due to service and also advised that their late husbands did not satisfy the conditions for entitlement to constant attendance allowance for at least 26 weeks before their deaths. Widows’ pensions were accordingly refused and the widows appealed. In the first two cases, the First-tier Tribunal allowed their appeals and awarded widows’ pensions to the claimants on the ground that their late husbands satisfied the conditions of entitlement to constant attendance allowance for at least 26 weeks before their deaths. In the third case, the First-tier Tribunal dismissed the appeal on the ground that the claimant’s late husband would not have satisfied the conditions of entitlement to constant attendance allowance for at least 26 weeks before his death. 3. In the first two cases, the Secretary of State appeals, with the permission of the First-tier Tribunal in one case and the permission of Upper Tribunal Judge Levenson in the other case, on the principal ground that the First-tier Tribunal had no jurisdiction to award a widow’s pension on the ground that it did and, in the first case only, on the alternative ground that the First-tier Tribunal gave an improper or inadequate reason for its decision. In the third case, the claimant appealed with my permission and I have already issued a decision notice allowing her appeal and remitting her case to the First-tier Tribunal on the ground that, as the Secretary of State had conceded, the First-tier Tribunal failed to give any reasons for not finding that the claimant’s husband’s death was due to or substantially hastened by service, but there remains the same question as arises in the other cases as to the scope of the remitted appeal. 4. On the jurisdiction issue, the Secretary of State submits that he does not have any power under the 2006 Order to award a widow’s pension on the ground that the assessment of the claimant’s late husband’s disablement was at least 80 per cent and he would have been awarded a constant attendance allowance for at least 26 weeks before his death had he made a claim and that, to the extent that he has made awards on such a ground in other cases, he has done so on an extra-statutory basis in respect of which there is no right of appeal. The claimants’ response to the Secretary of State’s grounds is, first, that a widow’s pension may be awarded under the 2006 Order if, at the time of his death, the claimant’s late husband’s disablement was assessed at 80 per cent and he satisfied the conditions for a constant attendance allowance set out in article 8 of the 2006 Order irrespective of whether he had made a claim for such an allowance and, secondly, that there is in any event a right of appeal against a decision not to make an award under a concession made under a dispensing instrument and that the relevant concession was made under such an instrument. 5. If the Secretary of State is successful in his grounds of appeal, there arises a further issue, which is whether the claimants can and should be treated as having brought posthumous appeals [2017] AACR 27 (SSD v CM) 4 against the decisions refusing their husbands constant attendance allowance. The Secretary of State submits that they cannot be treated as having brought such appeals. The claimants in the first two cases submit that they can and should be treated as having done so and that, if successful in those appeals, they can succeed in their widow’s pension appeals. The Pensions Appeal Tribunals Act 1943 6. The First-tier Tribunal is a creature of statute, having been established by section 3(1) of the Tribunals, Courts and Enforcement Act 2007 (“the 2007 Act”), and it therefore has only the jurisdiction conferred on it by statute. The only potentially relevant statute directly conferring jurisdiction on the First-tier Tribunal is the Pensions Appeal Tribunals Act 1943 (“the 1943 Act”) and the only provisions of that Act that might conceivably be thought to have conferred a right of appeal in these cases are section 1(3A) – not section 1(1) as suggested in the Secretary of State’s “Summary for [sic] issues for Determination” in each of these cases nor section 1(3) to which I referred when granting permission to appeal in the third case – and section 5A(1). So far as is material, section 1 and 5A provide: “Appeals against rejection of war pension claims made in respect of members of the naval, military or air forces. 1. – (1) Where any claim in respect of the disablement of any person made under any such Royal Warrant, Order in Council or Order of His Majesty as is administered by the Minister or under a scheme made under section 1 of the Polish Resettlement Act 1947 is rejected by the Minister … (2) … (3) Where any claim in respect of the death of any person made under any such Royal Warrant, Order in Council, Order of Her Majesty or scheme as aforesaid is rejected by the Minister on the ground that neither of the following conditions is fulfilled, namely – (a) that the death of that person was due to or hastened by an injury which was attributable to any relevant service; (b) that the death was due to or hastened by the aggravation by any relevant service of an injury which existed before or arose during any relevant service; the Minister shall notify the claimant of his decision, specifying that it is made on that ground, and thereupon an appeal shall lie to the appropriate tribunal on the issue whether the claim was rightly rejected on that ground. (3A) The last foregoing subsection shall not apply to any claim made under any such Royal Warrant, Order in Council, Order of Her Majesty or scheme as aforesaid in respect of the death of a person who dies after the expiration of the period of seven years beginning with the end of any relevant service of that person, but where any such claim is rejected by the Minister on the ground that neither of the following conditions is fulfilled, namely – [2017] AACR 27 (SSD v CM) 5 (a) that the death of that person was due to or substantially hastened by an injury which was attributable to any relevant service; (b) that the death was due to or substantially hastened by the aggravation by any relevant service of an injury which existed before or arose during any relevant service; the Minister shall notify the claimant of his decision, specifying that it is made on that ground, and thereupon an appeal shall lie to the appropriate tribunal on the issue whether the claim was rightly rejected on that ground. (4) … … Appeals in other cases. 5A. – (1) Where, in the case of a claim to which this section applies, the Minister makes a specified decision – (a) he shall notify the claimant of the decision, specifying the ground on which it is made, and (b) thereupon an appeal against the decision shall lie to the appropriate tribunal on the issue whether the decision was rightly made on that ground. (1A) This section applies to – (a) any such claim as is referred to in section 1, 2 or 3 of this Act; (b) a claim under a scheme mentioned in section 1(2) of the Armed Forces (Pensions and Compensation) Act 2004 (compensation schemes for armed and reserve forces). (2) For the purposes of subsection (1), a ‘specified decision’ is a decision (other than a decision which is capable of being the subject of an appeal under any other provision of this Act) which is of a kind specified by the Minister in regulations.” 7. What is particularly important for present purposes is that section 1 provides for appeals only where the Minister has rejected a claim under a royal warrant, order in council, royal order or specified scheme and section 5A provides only for appeals against specified decisions made on such claims. The background to the references in section 1 to “such Royal Warrant, Order in Council or Order of His Majesty as is administered by the Minister” is that the Crown’s power to make provision for pensions, including pensions in respect of disablement or death, to former members of the armed forces or their dependants is derived (at least principally) from section 3 of the Naval and Marine Pay and Pensions Act 1865, section 2(1) of the Pensions and Yeomanry Pay Act 1884 and section 2(1) of the Air Force (Constitution) Act 1917, each of which must now be read with section 12 of the Social Security (Miscellaneous Provisions) Act 1977 (“the 1977 Act”). Until the 1977 Act came into force, provision in respect of former members of the Royal Navy and Royal Marines was made by orders in council under the 1865 Act, provision in respect of former soldiers in the Army was made by royal warrants issued under the 1884 Act and [2017] AACR 27 (SSD v CM) 6 provision in respect of former members of the Royal Air Force was made by royal orders made under the 1917 Act. Since 1977, the powers under all three of those old Acts have, by virtue of the 1977 Act, been exercised by orders in council made by statutory instruments. Such orders in council make provision in respect of former members of all three services, thus avoiding the need to make three almost identical instruments every time there is a change in the provision made for pensions. They are, of course, made on the advice of the Secretary of State. 8. In any event, section 1 and 5A confer rights of appeal only if the decision being challenged was made under a relevant instrument so that, in each of these cases, consideration needs to be given to the statutory basis, if any, on which the Secretary of State’s decision was made. The 2006 Order – widows’ pensions and constant attendance allowance 9. The 2006 Order, which sets out the current principal scheme of pensions in respect of disablement and death due to service in the armed forces before 6 April 2005, is an order in council made pursuant to section 12(1) of the 1977 Act. Pensions under the 2006 Order are administered by the Secretary of State for Defence, who is the current successor of the former Minister of Pensions. There is therefore no doubt that sections 1 and 5A of the 1943 Act provide for appeals against certain decisions made under the 2006 Order. 10. Provision for awards in respect of death is made in Part III of the 2006 Order. So far as is material, articles 22 and 23 provided at the material time: “General conditions for Part III 22. – (1) Under this Part, awards may be made in accordance with this Order in respect of the death of a member of the armed forces which is due to service before 6th April 2005. (2) …. (3) The death of a member occurring after 22nd November 1916 at a time when an allowance in respect of constant attendance was payable to him in respect of a period ending with his death, or would have been so payable if he had not been in hospital or other institution, shall be treated as due to service for the purposes of this Part. (4) The death of a member – (a) whose degree of disablement was assessed at not less than 80 per cent; and (b) to whom, in respect of the period ending with his death, an allowance under article 12 was payable shall be treated as due to service for the purposes of this Part. (5) For the purposes of paragraph (4), a member of the armed forces shall be treated as if he was in receipt of an allowance under article 12 if – (a) at the time of his death subparagraphs (b), (c) and (f) of article 12(3) applied to him; and (b) the period of remunerative work had not exceeded a period of 104 weeks. [2017] AACR 27 (SSD v CM) 7 (6) …. (7) …. Pensions to surviving spouses and surviving civil partners 23. – (1) The surviving spouse or surviving civil partner of a member of the armed forces whose death is due to service may be awarded a pension – (a) at whichever of the rates specified in column (2) of Tables 1, 2 and 3 in Part II of Schedule 2 is appropriate in the case where – (i) the person has attained the age of 40 years …, or (ii) …, or (iii) …, or (iv) …, or (v) …; b) …. (2) A supplementary pension payable at whichever of the rates specified in column (2) of Tables 6 and 7 in Part II of Schedule 2 as is appropriate in the case per week shall be awarded to a surviving spouse or surviving civil partner of a member of the armed forces where – (a) the surviving spouse or surviving civil partner is entitled to a pension under paragraph (1) above; and (b) the service of that member terminated before 31st March 1973.” 11. Article 27(1) provides: “Temporary Allowances 27. – (1) Notwithstanding anything in the foregoing provisions of this Order, where a member of the armed forces died or dies on or after 2nd December 1963 and – (a) [revoked] (b) in respect of any period ending with his death there was payable to him either – (i) an allowance under article 8 or 12(1)(a), or (ii) although concurrently eligible for an allowance under article 12(1)(a), an allowance under article 15; or (c) an allowance under article 8 ceased to be payable within 13 weeks of his death following his entry as an inpatient into a hospital or other institution [2017] AACR 27 (SSD v CM) 8 his surviving spouse or surviving civil partner or dependant who lived as his spouse or dependant who lived as a civil partner (‘dependant’) may be awarded a personal allowance and, in respect of children, additional allowances in accordance with the following provisions of this article.” A temporary allowance is payable for 26 weeks at a rate that is, subject to some exceptions, equivalent to the rate at which the deceased’s war pension was paid. 12. Articles 22 and 23 must be read with article 41, paragraph (1) of which provides: “Entitlement where a claim is made in respect of a disablement, or death occurs, more than 7 years after the termination of service 41. – (1) Except where paragraph (2) applies, where, after the expiration of the period of 7 years beginning with the termination of the service of a member of the armed forces, a claim is made … in respect of the death of that member (being a death occurring after the expiration of the said period), such … death, as the case may be, shall be accepted as due to service for the purpose of this Order provided it is certified that – (a) …; or (b) the death was due to or substantially hastened by (i) an injury which was attributable to service, or (ii) the aggravation by service of an injury which existed before or arose during service.” Section 1(3A) of the 1943 Act clearly provides for a right of appeal against the rejection of a claim for widow’s benefit on the ground that death was not “due to or substantially hastened by” a service injury. Section 1(3) applies to cases under article 40 of the 2006 Order (death within seven years of service), where the test is “due to or hastened by” a service injury. 13. In each of these cases it was either accepted by the claimant or was at least implicitly found by the First-tier Tribunal that article 41(1)(b) was not satisfied and so the widow’s husband’s death could not be accepted as actually having been due to service. There therefore arose the question whether his death could be “treated as due to service” under article 22(3). (In the first case before me, there also arose at one stage the question whether article 22(4) might apply, but I will deal with that issue separately.) It has rightly not been suggested that an appeal does not lie under section 1(3) or (3A) of the 1943 Act, as the case may be, in a case where a claim for widow’s benefit is rejected on the ground that her husband’s death cannot be “treated as due to service”. The implication of treating a death as due to service is that the conditions of article 40(1)(b) or 41(1)(b), as the case may be, are treated as satisfied so that, where there is a refusal to treat a death as due to service, the claimant is to be taken for the purposes of section 1(3) or (3A) as having been rejected on the ground that those conditions are not satisfied. 14. The Secretary of State’s submission is that article 22(3) could not apply in any of these cases because constant attendance allowance was not “payable” at the time of the claimants’ husbands’ deaths simply because there had not been an award in any of the cases. He accepts that, [2017] AACR 27 (SSD v CM) 9 if there had been an outstanding claim for constant attendance allowance at the time of death and then a posthumous award in respect of that date, that would meet the condition. However, there was no outstanding claim in any of these cases; there had been a claim in each case but it had been rejected and there had been no appeal. 15. In the second of the cases before me, the First-tier Tribunal took the view that article 22(3) applied if the claimant satisfied the conditions of entitlement to constant attendance allowance set out in article 8 even if constant attendance allowance had not been awarded. In the first case before me, the First-tier Tribunal took a similar approach but it did not refer to article 22(3). It may have adopted the argument of the claimant’s representative, who it recorded had referred to article 27. Article 27 was not directly in issue because the claimant had received a temporary allowance under article 27(1)(b)(ii) and so did not need to rely on article 27(1)(b)(i). In fact, of course, the claimant was seeking a pension under article 23, which was not mentioned anywhere in the documents in the case (or, indeed, in the documents in either of the other cases) and so, in the light of the opening words of article 23(1), article 22(3) was the provision that made eligibility to constant attendance allowance potentially relevant. 16. Article 8 provides: “Constant attendance allowance 8. – (1) Subject to paragraph (6) and article 71(4), where – (a) a member of the armed forces is in receipt of retired pay or a pension in respect of disablement the degree of which is not less than 80 per cent; and (b) it is shown to the satisfaction of the Secretary of State that constant attendance on the member is necessary on account of the disablement the member shall be awarded an allowance in accordance with the following paragraphs of this article. (2) Where the necessary attendance consists of frequent or regular attendance for periods during the daytime which total not less than four and not more than eight hours per day, the rate of the allowance shall be the part day rate specified in paragraph 1(a)(i) of Part IV of Schedule 1. (3) Where the necessary attendance consists of – (a) frequent or regular attendance for periods during the daytime which total not less than eight and not more than sixteen hours per day; or (b) frequent or regular attendance for periods during the daytime which total less than eight hours per day and attendance on two or more occasions per night the rate of the allowance shall be the full day rate specified in paragraph 1(a)(ii) of Part IV of Schedule 1 (4) Where the necessary attendance consists of – [2017] AACR 27 (SSD v CM) 10 (a) frequent or regular attendance for periods during the daytime which total not less than eight hours per day and attendance on two or more occasions per night; or (b) frequent or regular attendance for periods at night which total not less than eight hours and during the daytime for periods which total not less than four hours per day the rate of the allowance shall be the intermediate rate specified in paragraph 1(a)(iii) of Part IV of Schedule 1. (5) Where the necessary attendance consists of continual attendance throughout the day and night, the rate of the allowance shall be the exceptional rate specified in paragraph 1(a)(iv) of Part IV of Schedule 1. (6) Where – (a) a member of the armed forces is in receipt of retired pay or pension in respect of disablement, due to one or more injuries, the degree of which is not less than 80 per cent, and (b) one of those injuries is a terminal illness, the member shall be taken to satisfy or likely to satisfy the necessary attendance specified in paragraph (4) for so much of the period for which he is terminally ill as does not fall before the date of claim, and the rate of the allowance shall be the intermediate rate specified in paragraph 1(a)(iii) of Part IV of Schedule 1.” 17. The First-tier Tribunal also appears to have taken the view in those two cases that it was under the 2006 Order that the Secretary of State had considered whether the claimants’ late husbands would have been entitled to constant attendance allowance for at least 26 weeks before their deaths had they claimed again. However, as Mr Buley pointed out in argument, that cannot be right because there is no basis in the 2006 Order for the 26-week qualification period. 18. In any event, the Secretary of State submits that such a construction of the 2006 Order in those two cases was wrong. He submits that constant attendance allowance cannot be regarded as “payable” for the purposes of article 22(3) unless there has been a successful claim for the allowance or supplement and he refers to article 34(1) and (2), which, so far as is material, provided at the material time: “Making of claims 34. – (1) Subject to paragraphs (2A), (4)] and article 35, it shall be a condition precedent to the making of any award of any pension, allowance or supplement mentioned in paragraph (2) (including any such award which follows an earlier award or which follows a period which, had there been an award for that period, would have ended in accordance with article 33(1)) that the person making the claim shall have – [2017] AACR 27 (SSD v CM) 11 (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 either to an appropriate office of the Secretary of State or to an office of an authorised agent. (2) The pensions, allowances and supplement to which paragraph (1) applies are – … (c) a constant attendance allowance payable under article 8; … (e) an unemployability allowance payable under article 12; …” 19. Mr Lyons, who has shouldered the main burden of arguing the legal points for all three claimants, submits that the word “payable” is deliberately used in article 22(3) so as not to prejudice the widows of those who could have been entitled to constant attendance allowance if they had applied for it. He submits that otherwise there would be something of a lottery, depending on whether the deceased had made a claim for the allowance or supplement and, if there had been a rejected claim, whether the deceased had brought an appeal. He also submits that it is significant that the practice of the Secretary of State of making awards to widows in cases where the deceased had not made a claim for constant attendance allowance is reflected in official forms. 20. I have no doubt that the Secretary of State’s argument on this issue must prevail. Despite the language of subsequent provisions, including articles 22(3), 27(1)(b)(i) and 34(2)(c), article 8 does not directly deal with payability but with whether an award should be made; it provides that, where the conditions are satisfied, “the member shall be awarded an allowance”. Article 34(1) provides that making a claim “shall be a condition precedent to the making of any award”. It thus necessarily qualifies article 8(1) and all the other provisions in Parts II and III of the 2006 Order. In my judgment, “payable” in article 22(3) and all other provisions other than article 34(2) must be construed as “payable under an award”. As Mr Buley readily conceded, in article 34(2), the context requires “payable” to be read as “payable if an award is made” or something to like effect, since the clear purpose of article 34(1) is that a pension, allowance or supplement will not be payable if there has been no claim. 21. There is, of course, a close relationship between an award and payability. An award generally confers entitlement to a payment so that, unless payment is withheld under some other provision of the 2006 Order, a benefit that has been awarded is payable and, indeed, a claimant would be entitled to sue for the payments if they were not made. Article 53 is one provision under which payments may be withheld. It has the effect that constant attendance allowance that has been awarded under article 8 may cease to be payable if a claimant is in a hospital or other institution. A claimant is often said to have an “underlying entitlement” in such a case, since the award remains in place but the benefit is not payable. Specific provision is made in article 22(3) for such cases. However, although there may therefore be cases where there is an award but the allowance is not payable, I do not consider it possible for there to be payability without an award and article 34 requires there to be a claim for constant attendance allowance before there can be an award. Moreover, it is implicit that, if a claim is rejected and the rejection is not successfully challenged by way of an appeal or application for review, a further claim is required before an award can be made. [2017] AACR 27 (SSD v CM) 12 22. I do not accept that this construction of the 2006 Order gives rise to any unfairness, although there may be some hard cases. Article 34(1) clearly anticipates that there will be a difference in the treatment of those who have claimed constant attendance allowance and those who have not and, to the extent that that may occasionally produce hard cases, that is the necessary result of a provision that presumably is considered justified in the interests of good administration. Moreover, use may be made of the dispensing instruments, which I will consider below, if it is thought that there will otherwise be serious injustice. As the Secretary of State accepts, if a claim is outstanding at the date of death, it will still fall to be determined and an award made on a claimant’s claim after the date of his death can clearly have the effect that an allowance is “payable to him in respect of a period ending with his death” for the purposes of article 22(3). Appeals and rights of appeal also survive the death of the claimant and I will consider below the possibility of posthumous appeals in these cases. 23. I also do not accept that the forms used by the Secretary of State support Mr Lyons’ argument. Mr Lyons drew attention to the claim form for a war widow’s or war widower’s pension, which states that the form can be used if “your husband, wife or civil partner was getting or could have got War Pensioner’s Constant Attendance Allowance” (his emphasis). He also referred to the form to be completed by a medical advisor, which requires the medical advisor to consider certifying whether death was due to, hastened by or substantially hastened by an accepted condition and then contains the following instruction: “Deceased assessed at 80 per cent or more – not in receipt of CAA. In the event of a rejection please advise whether the deceased pensioner would have been entitled to CAA for at least 26 weeks before their death.” 24. However, while those forms are consistent with there having been an established practice, they do not suggest that the Secretary of State has ever believed that the practice was required by the 2006 Order. Indeed, as will be seen below, there is clear evidence that he has never believed such a thing or intended that to be the Order’s effect. Moreover, the decisions refusing pensions in all three of these cases were expressed in standard terms that reflect only the provisions of article 41 which is consistent with the Secretary of State’s submission to the Upper Tribunal that there was no question of entitlement under section 22(3) in these cases because, at the time the decisions were made, none of the claimants had claimed that her husband had been awarded constant attendance allowance in respect of the date on which he died. In each case, it was said only that: “Our Medical Advisers have confirmed that your husband’s death was not due to An injury caused by their service, The worsening of an injury caused by their service, The worsening, because of their service, of an injury which was there before or happened during their service.” 25. For all these reasons, I am satisfied that, absent a successful posthumous appeal in respect of her husband’s entitlement to constant attendance allowance, none of these claimants could secure entitlement to a widow’s pension through article 22(3). The 2006 Order – widows’ pensions and unemployability allowance [2017] AACR 27 (SSD v CM) 13 26. Although the Secretary of State’s decision refusing a widow’s pension in each case conspicuously failed to mention the fact that the claimant’s husband was not entitled to constant attendance allowance or unemployability allowance at the time of his death as part of his reasoning, the claimants may have had further information about widows’ pensions and, in particular, he had provided the claimant in the first case before me with more information when she made an enquiry about an award in respect of funeral expenses. He said, in a letter dated 6 May 2014: “When an ex-member of the Armed Forces dies, War Widow’s Pension and a grant towards the cost of a basic funeral may be made if: It is medically confirmed that the death was caused or substantially hastened by conditions related to their military service or They were assessed at 80 per cent or more and were in receipt of War Pensions Unemployability Supplement or War Pensions Constant Attendance Allowance (not Attendance Allowance paid by DWP) with their War Pension at the time of death.” In her appeal in respect of both the widow’s pension and the grant for funeral expenses, the claimant pointed out that the assessment of her late husband’s assessment had been 90 per cent and she enclosed a copy of that letter and also a copy of a letter her husband had received a year earlier, confirming “that you are currently in receipt of a 90 per cent War Pension and Allowances” (emphasis supplied). It appears that she was not aware what allowances he had been receiving. 27. The Secretary of State responded by way of a “comment” in the bundle of papers supplied for the hearing before the First-tier Tribunal, in which he said: “1. The Secretary of State has noted the comments made by [the claimant] in her letter of appeal received on 14.08.14. 2. [The claimant’s husband] had been in receipt of a 90 per cent War disablement Pension (WDP) and Allowance for Lower Standard of Occupation (ALSO). He had underlying entitlement to Unemployability Supplement (UNSUPP). This gave the [claimant] entitlement to Temporary Allowance for Widows (TAW). [The claimant] has indicated that she believes that she meets the automatic entitlement criteria. 3. [The claimant’s husband] had claimed Constant Attendance Allowance but his claim was unsuccessful. The appeal is therefore on the basis of his underlying entitlement to UNSUPP and that his death was neither due to or substantially hastened by service. The Medical Advisor’s reasons dated 01.08.14 address the medical issue. 4. The criteria for an award of TAW and War Widows pension (WWP) are different; the Temporary Allowances includes (at article 27(1)(b)(ii)) provision specifically stating that there is entitlement where a pensioner was in receipt of ALSO but had entitlement to UNSUPP. [2017] AACR 27 (SSD v CM) 14 5. The criteria for an automatic award of WWP, set out in article 22(4)(b), state that in respect of the period ending with his death, an allowance under article 12 was payable. There is no provision equivalent to that in the Temporary Allowances article. 6. In addition we must consider the ALSO article 15. At (4) the article provides that an allowance shall not be payable to a member for any period in respect of which an allowance under article 12(1)(a) or article 17 is payable to him. 7. Article 12(1) refers to unemployability allowances 12.—(1) Subject to the provisions of this article, 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, being— (a) a personal unemployability allowance at the appropriate rate specified in paragraph 5(a) of Part IV of Schedule 1; and (b) additional unemployability allowances for dependants in accordance with such of the provisions of paragraph (6) as may be appropriate in his case. 8. [The claimant’s husband] had underlying entitlement to UNSUPP (article 12) but it was not payable to him because ALSO was in payment. Therefore there is no automatic entitlement to WWP following his death. 9. The Secretary of State would point out that on 09.06.10 the then SPVA sent [the claimant’s husband] a letter explaining the criteria of automatic awards of WWP therefore he was aware of this. 10. For these reasons and the Medical Reasons dated 01.08.14 the Secretary of State is satisfied that the decision in [the claimant’s] case is appropriate.” 28. The Secretary of State provided with the comment extracts from the 2006 Order, setting out articles 15, 22 and 27 but not article 23. In so far as is material, article 15 provides: “Allowance for lowered standard of occupation 15. – (1) Subject to paragraph (2), where a member of the armed forces is – (a) in receipt of retired pay or a pension in respect of disablement the degree of which is less than 100 per cent; and (b) the disablement is such as to render him incapable, and likely to remain permanently incapable, of following his regular occupation and incapable of following any other occupation with equivalent gross income which is suitable in his case taking into account his education, training and experience he shall, subject to paragraph (3), be awarded an allowance for lowered standard of occupation at a rate not exceeding the appropriate rate specified in paragraph 8 of Part IV of Schedule 1. [2017] AACR 27 (SSD v CM) 15 (2) … (3) The aggregate rate of the member's retired pay or pension together with the allowance under this article shall not exceed the rate of retired pay or pension which would have been appropriate in his case if the degree of his disablement had been 100 per cent. (4) Subject to the provisions of paragraph (5), an allowance under this article shall not be payable to a member for any period in respect of which an allowance under article 12(1)(a) or article 17 is payable to him. (5) Where a member is in receipt of an allowance under this article he may continue to receive such allowance if he becomes eligible subsequently for an allowance under article 12(1)(a). (6) …” 29. The point that the Secretary of State was trying to make in paragraphs 4 and 5 of the comment was that the claimant had qualified for a temporary allowance under article 27(1)(b)(ii) but that it did not follow that article 22(4) was satisfied so that she could qualify for a pension under article 23. However, because none of the documents provided to the First-tier Tribunal so much as mentioned article 23 and because the version of article 27 provided by the Secretary of State failed to take account of the very important amendment made by the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions (Amendment) Order 2008 SI/2008/679), which revoked article 27(1)(a) and so removed the requirement that the deceased’s death have been due to service (restoring the position to what it had been some years earlier), and because neither party explained the real relevance of the argument about constant attendance allowance, the First-tier Tribunal appears to have overlooked the information that the claimant had already received a temporary allowance and may have believed that the issue before it was whether the claimant qualified for a temporary allowance under article 27(1)(b)(i). Consequently, it did not consider it necessary to refer to the argument advanced by the Secretary of State in his comment. 30. In my judgment the Secretary of State’s conclusion in respect of article 22(4) was sound but his reasoning was completely misconceived and, indeed, is inconsistent with the submission he has made to the Upper Tribunal in respect of article 22(3). 31. Plainly many people who are unemployable and satisfy the conditions for unemployability allowance set out in article 12 also satisfy the conditions for an allowance for lowered standard of occupation set out in article 15, but article 15(4) has the effect that both allowances cannot be payable at the same time. (For reasons that I will explain below, article 15(5) appears to be a dead letter.) Unemployability allowance is paid at a rate that is greater than the maximum rate of an allowance for lowered standard of occupation and so, other things being equal, one might expect a person to claim the former rather than the latter. However, an unemployablity allowance “overlaps” with non-means-tested benefits in the civilian social security scheme, such as incapacity benefit, contributory employment and support allowance and retirement pensions, so that the latter are reduced by the amount of the former (see regulation 6 of, and Schedule 1 to, the Social Security (Overlapping Benefits) Regulations 1979 (SI 1979/597)), whereas an allowance for lowered standard of occupation under article 15 does not. [2017] AACR 27 (SSD v CM) 16 32. The consequence, as explained to the claimant’s husband in the letter of 9 June 2010 mentioned in paragraph 9 of the Secretary of State’s comment, is that a person may be better off claiming an allowance for lowered standard of occupation together with a civilian benefit than he or she would be claiming unemployability allowance. The letter to the claimant’s husband pointed out that, while the amount of unemployability allowance was less than the amount of allowance for lowered standard of occupation plus incapacity benefit, there were other implications. I think the letter may have been written partly as a result of the 2008 amendment to article 27(1), although it was also clearly triggered by the substitution of article 32 in the following year. In any event, it included the following information, in different parts of the letter: “If your disablement is assessed at 80 per cent or more and you are being paid Unemployability Supplement at the time of your death, your widow/widower will automatically qualify for a War Widow’s/Widower’s Pension.” “Your wife/husband may still qualify for a War Widow’s/Widower’s Pension in any case if you die of your accepted disablement.” The implication, albeit not spelled out, was that, if the claimant’s husband’s death was not due to any of his accepted conditions, his widow might not qualify for a widow’s pension if he did not elect to claim unemployability supplement. Whether or not he appreciated that implication, he did not in fact make a claim for unemployability supplement following receipt of the letter. 33. It seems to me to be misleading to say, as the Secretary of State did in his comment, that the claimant’s husband in this case had an “underlying entitlement” to unemployability supplement. As he now submits, there can only be entitlement if there has been a claim and therefore, as I have indicated above, the non-statutory term “underlying entitlement” is best confined to cases where there has been a claim and an award but payment has been withheld because, for instance the claimant has been in hospital. Here, there was no claim for unemployability supplement. The claimant had been entitled to a temporary award under article 27 because the word used in article 27(1)(b)(ii) is “eligible”, a term that appeared in article 33(1)(a)(ii) of the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 1983 (SI 1983/883) and pre-dates the introduction of the forerunner of article 34. The drafting of article 27(1)(b)(ii) is a little odd – particularly the use of the word “although” – but in its context the phrase “eligible for an allowance under article 12(1)(a)” clearly means satisfying the conditions for entitlement to unemployability supplement set out in article 12. It does not require satisfaction of the additional condition imposed by article 34 of having made a claim. 34. Moreover, paragraph 8 of the comment was inconsistent with paragraph 6. Article 15(4) has the effect that an allowance for lowered standard of occupation is not payable where an unemployability allowance is payable – not vice versa. It was therefore not correct to say that an unemployability allowance was not payable because an allowance for lowered standard of occupation was payable. The legal reason that an unemployability allowance was not payable was simply that there had been no claim for it. That the claimant’s husband had preferred to claim an allowance for lowered standard of occupation was merely the explanation for his not having made the necessary claim. 35. It initially appeared to me that article 15(5) had the effect that the Secretary of State was permitted to pay both an allowance for lowered standard of occupation and an unemployability allowance at the same time and so at first I read the reference to an underlying entitlement to [2017] AACR 27 (SSD v CM) 17 imply that the claimant’s husband had in fact made a claim for unemployability supplement. However, it is now clear that there was no such claim – or, if there had been in the past, the claim had been withdrawn to allow an allowance for lowered standard of occupation to be paid – and Mr Buley has persuaded me that my initial reading of article 15(5) was not correct. I accept that “eligible” in that provision should be given the same meaning as it clearly has in article 27(1)(b)(ii) and so it becomes clear that the purpose of article 15(5) (which was previously article 21(4) of the 1983 Order) is to make it explicit that the mere fact that a person satisfies the conditions of article 12 does not bring article 15(4) into play if no claim for unemployability allowance has been made. As Mr Buley was, I think, inclined to concede, article 15(5) is now a wholly unnecessary provision because, in the light of article 34, the effect is achieved through the use of the word “payable” where it appears or the second time in article 15(4). Article 15(5) therefore tends to confuse, rather than to clarify, the position. 36. In any event, the reason that article 22(4) does not help the claimant in the first case before me is much the same as the reason that, absent a posthumous appeal, article 22(3) does not. Her husband had not been awarded unemployability supplement and there was no undetermined claim for it. Specified decisions under the 2006 Order 37. In the third case before me, the First-tier Tribunal made no reference to article 22(3) of the 2006 Order or to any other statutory provision other than article 41 of that Order. However, it said: “The question whether CAA was merited for his accepted disablement in the 26 week period before his death is essentially a specified decision to be decided on the balance of probabilities.” 38. It presumably had in the back of its mind section 5A of 1943 Act, which was brought fully into force in 2001 (see section 57(1) of the Child Support, Pensions and Social Security Act 2000) and the Pensions Appeal Tribunals (Additional Rights of Appeal) Regulations 2001 (SI 2001/1031) (“the 2001 Additional Rights of Appeal Regulations”), as amended, which is made under section 5A of the 1943 Act and regulation 3A(1) of which provides: “3A. – (1) Each 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, shall be a specified decision.” [2017] AACR 27 (SSD v CM) 18 39. Articles 8 and 12 of the 2006 Order are listed in Schedule 1A to those Regulations so that decisions in respect of constant attendance allowance and unemployability allowance that fall within the scope of regulation 3A(1)(b) are specified decisions in respect of which there is a right of appeal under section 5A of the 1943 Act. So, too, is article 23(2) but article 23(1) is not, presumably because it is unnecessary in the light of section 1(3) and (3A) of the 1943 Act. Thus, the 2001 Additional Rights of Appeal Regulations do not make appealable any decisions as to the payability of constant attendance allowance or unemployability allowance for the purposes of a claim for widow’s pension. A supplementary pension cannot be awarded under article 23(2) unless a basic pension has been awarded under article 23(1). 40. What, on the other hand, a widow may be able do is bring a posthumous appeal against a decision to refuse her husband constant attendance allowance or, as the case may be, unemployability allowance. However, in the third case before me, the decision on the claimant’s husband’s claim for constant attendance allowance had been made more than two years before he died. So, by the time the claimant made her claim for a widow’s pension, a posthumous appeal against the constant attendance allowance decision would have been irredeemably out of time. The First-tier Tribunal’s understanding that there was a specified decision before it was therefore entirely misconceived. Posthumous appeals 41. Provision for posthumous appeals is made by the Pensions Appeal Tribunals (Posthumous Appeals) Order 1980 (SI 1980/1082, as amended by SI 2001/408, SI 2001/3506, SI 2005/245 and SI 2008/2683) (the 1980 Order”), which is made under section 16(1) and (2) of the Social Security Act 1980. Of particular relevance to the present cases is article 3(2), which provides for appeals to be brought after a claimant’s death against entitlement decisions and specified decisions notified to the claimant before his or her death. Article 3 provides: “Posthumous notification of, and appeals to the appropriate tribunal against, decisions of Secretary of State 3. – (1) Subject to paragraph (5), where the decision by the Secretary of State on a claim for an award under an instrument mentioned in section 1, 2, 3 or 5A of the Act (appeals to the appropriate tribunal on entitlement questions and specified decisions) has not been notified to the claimant before his death – (a) the Secretary of State shall, on becoming aware of that death and the existence and identity of the designated person, notify that person of the decision; and (b) the designated person may, subject to the following provisions of this Order, bring an appeal under section 1, 2, 3 or as the case may be, 5A of the Act against that decision within 6 months of the date of notification. (2) Subject to paragraphs (3) to (5), where the decision by the Secretary of State on such a claim has been notified to the claimant in his life time but the claimant has not appealed against that decision before his death, the designated person may, subject to the following provisions of this Order, bring an appeal under the said section 1, 2, 3 or, as the case may be, 5A as though brought on behalf of the appellant and, without prejudice to the [2017] AACR 27 (SSD v CM) 19 application of article 68(5) of the Pensions Order [now article 68(3) of the 2006 Order] … (no award in respect of any period following date of claimant's death), as though the claimant had not died. (3) An appeal referred to in paragraph (2) shall be made within 6 months from the date of notification to the claimant. (4) …. (5) Where a designated person satisfies the Secretary of State that – (a) he would have brought an appeal on a date (‘the earlier date’) earlier than that (‘the actual date’) on which he actually did so but for the fact that he was incapable of so doing or instructing someone to act on his behalf by reason of – (i) the death or serious illness of the designated person or a spouse or dependant of that person; (ii) the disruption of normal postal services; (ii) failure on the part of the Secretary of State to notify the claimant or the designated person of the decision; or (iv) exceptional circumstances applying to the designated person which rendered it impracticable for him to bring the appeal or to instruct another person to bring it; and (b) the appeal was in any event made or brought as soon as was reasonably practicable in the circumstances of the case, the reference in paragraph (3) to 6 months from the date of notification shall be treated as a reference to not later than 12 months after the expiry of the time limit provided for in that paragraph. (6) For appeals to the First-tier Tribunal, Tribunal Procedure Rules apply in respect of the time limits and extension to those time limits by the Secretary of State.” 42. By virtue of article 1(2) of the 1980 Order, read with article 68(5) of the 2006 Order, any surviving spouse or civil partner of the claimant is “the designated person” for the purposes of the 1980 Order. 43. Article 3(6) is not perhaps as clearly drafted as it might have been but I have no doubt that its effect is to confine the operation of the time limits in article 3(1)(b) and (3) of the 1980 Order to appeals to Pensions Appeal Tribunals in Scotland and Northern Ireland. The functions of Pensions Appeal Tribunals in England and Wales were transferred to the First-tier Tribunal in 2008 and Tribunal Procedure Rules now make provision for time limits for appealing. Since 2011, rule 21(1) to (4) of the Tribunal Procedure (First-tier Tribunal) (War Pensions and Armed Forces Compensation Chamber) Rules 2008 (SI 2008/2686) (“the 2008 Tribunal Procedure Rules”) has provided: [2017] AACR 27 (SSD v CM) 20 “21. – (1) An appellant must start proceedings by sending or delivering a notice of appeal to the decision maker so that it is received within 12 months after the date on which written notice of the decision being challenged was sent to the appellant. (2) If the appellant provides the notice of appeal to the decision maker later than the time required by paragraph (1) the notice of appeal must include the reason why the notice of appeal was not provided in time. (3) Subject to paragraph (4), where an appeal is not made within the time specified in paragraph (1), it will be treated as having been made in time if the decision maker does not object. (4) No appeal may be made more than 12 months after the end of the 12-month period provided for in paragraph (1). … (7) Notwithstanding rule 5(3)(a) (case management powers) and rule 7(2) (failure to comply with rules etc.), the Tribunal must not extend the time limit in paragraph (4).” Paragraph (1) must be read as being subject to rule 5(3)(a), which provides that the First-tier Tribunal may “extend or shorten the time for complying with any rule” but, as is emphasised by rule 21(7), rule 5(3)(a) must in turn be read as being subject to rule 21(4). 44. Thus, article 3(6) of the 1980 Order has the effect that the basic time limit for bringing posthumous appeals is twelve months in England and Wales whereas it is six months in Scotland and Northern Ireland. The legislative history shows how this has come about. 45. There were no time limits at all in the 1980 Order until 2001, reliance being placed solely on the general time limit for entitlement appeals in section 8 of the 1943 Act, which was twelve months but extendable by a Pensions Appeal Tribunal if there was a reasonable excuse for the delay. In 2001, the time was reduced to six months and applied also to appeals under the newly inserted section 5A. At the same time, the circumstances in which time might be extended were tightened up, through a further amendment to section 8 and through the Pensions Appeal Tribunals (Late Appeals) Regulations 2001 (SI 2001/1032) (“the 2001 Late Appeals Regulations”). It was also at that time that a six-month time limit was added to article 3(1)(b) of the 1980 Order and that paragraphs (3) to (5) were also added. The reason for doing that is apparent when one compares article 3(5) of the 1980 Order with regulations 3 and 4 of the 2001 Late Appeals Regulations. They have the same broad effect but regulation 4 of the 2001 Late Appeals Regulations is directed to the circumstances of the claimant, whereas article 3(5) of the 1980 Order is largely directed to the circumstances of the designated person. The basic six-month time limit for appeals against entitlement decisions and specified decisions and the twelve-month limit on extending it were common both to claimants’ appeals and to appeals brought by designated persons. 46. This continued to be the case until 2011, notwithstanding the transfer of functions from the Pensions Appeal Tribunal in England and Wales to the First-tier Tribunal in 2008, although the restricted grounds on which the time limit might be extended then ceased to apply in England and Wales. This is because amendments made to section 8 of the 1943 Act in 2008 had the effect [2017] AACR 27 (SSD v CM) 21 of confining the time limits in it and the operation of the 2001 Late Appeals Regulations to appeals to Pensions Appeals Tribunals in Scotland and Northern Ireland. Time limits for appeals to the First-tier Tribunal in England and Wales and the powers to extend them were thereafter to be found in the 2008 Tribunal Procedure Rules, rule 21(1) of which prescribed time limits that were the same as those in section 8. Article 3(6) of the 1980 Order was inserted at the same time and was clearly intended similarly to have the effect that the time limits for posthumous appeals and the powers to extend them in England and Wales should be found in the 2008 Tribunal Procedure Rules rather than in the 1980 Order itself, a reversion to the position that had obtained until 2001. (I observe, though, that in the case of a posthumous appeal under article 3(2) of the 1980 Order, “appellant” in the second place where it appears in rule 21(1) of the 2008 Tribunal Procedure Rules must be read as referring to the deceased claimant.) Initially, the only practical difference this made was in relation to the disapplication of article 3(5) in England and Wales, just as the 2001 Late Appeals Regulations had ceased to have effect in England and Wales. 47. However, in 2011, the time limits in section 8 of the 1943 Act and in rule 21(1) of the 2008 Tribunal Procedure Rules were increased to twelve months. The time limits in article 3(1)(b) and (3) of the 1980 Order were not similarly extended. I suspect that they were overlooked but, in any event, they continue to have the effect that the time limit for bringing posthumous appeals in Scotland and Northern Ireland is only six months and so article 3(6) now creates more of a practical difference between the position in England and Wales and that in Scotland and Northern Ireland than it did before. 48. The question that arises before me is whether the claimants in the present cases could have been treated by the First-tier Tribunal as having made posthumous appeals under article 3(2) of the 1980 Order against the decisions refusing their late husbands constant attendance allowance. The Secretary of State accepts that, if the claimants had brought posthumous appeals against the refusal of constant attendance allowance and the First-tier Tribunal had awarded constant attendance allowance up to the date of his death, the First-tier Tribunal could then properly have allowed the claimants’ widows’ pension appeals on the ground that article 22(3) of the 2006 Order was satisfied. However, he submits that, on the facts of these cases, the claimants had not brought such posthumous appeals and cannot now do so or be treated as having done so. 49. This is a live issue only in the first two cases before me because, as I have already mentioned, the third claimant could never have brought such a posthumous appeal as the decision refusing her husband constant attendance allowance had been made more than two years before he died. In the first case, however, the decision refusing the claimant’s husband constant attendance allowance was made on 21 November 2013, he died on 30 April 2014, the claimant’s claim for widow’s pension was made, or treated as made, on 2 May 2014, that claim was rejected on 6 August 2014 and her appeal against the rejection was received by the Secretary of State on 14 August 2014 and therefore within 12 months of the constant attendance allowance decision. The appeal was heard on 8 May 2015, within the period of a further 12 months within which a late appeal against the constant attendance allowance decision might, and would unless the Secretary of State objected, be admitted. In the second case, the decision refusing the claimant’s husband constant attendance allowance was made on 12 December 2013, he died on 4 November 2014, the claim for widow’s pension was treated as made on 11 November 2014 and the claimant’s appeal against the decision of 22 December 2014 refusing her widow’s pension was received by the Secretary of State on 9 January 2015 and heard on 21 July 2015, both of the latter dates being between 12 months and 24 months after the constant attendance allowance decision. [2017] AACR 27 (SSD v CM) 22 50. The Secretary of State points out that rule 21(5)(d) of the 2008 Tribunal Procedure Rules requires a notice of appeal to include “details (including the full reference) of the decision being appealed” and he correctly submits that the wording of the appeals submitted in the first two cases (or, for that matter, the third) cannot be construed as referring in any way to the constant attendance allowance decision. Although rule 7 permits breaches of the requirements of the Rules to be waived, he submits that that is not appropriate on a matter that goes to jurisdiction. The fact is, he argues, that neither of the claimants showed any intention of appealing against the constant attendance allowance decision in their original letters of appeal and, even if the First-tier Tribunal could have invited late posthumous appeals against those decisions at the hearings, it did not do so and it is far too late to do anything about it now. 51. Mr Lyons, however, submits that, in order to avoid injustice, any appeal to the First-tier Tribunal in this sort of case should be construed as an appeal against any possibly relevant decision on any possible ground. He draws attention to the way in which these appeals unfolded before the First-tier Tribunal and to the background against which they were brought. 52. I accept the Secretary of State’s submission that it is implicit that some defects of procedure cannot be waived under rule 7, a failure to comply with the absolute time limit in rule 21(4) having been one of them even before rule 21(7) was added (see LS v London Borough of Lambeth (HB) [2010] UKUT 461 (AAC); [2011] AACR 27 at [130]). I also accept that, for there to be an appeal, the claimant must have taken some action that is capable of being construed as an appeal. However, I do not consider that rule 21(5)(d) is any more fundamental than rule 21(5)(e), which requires a claimant to include in any notice of appeal “the grounds on which the appellant relies”, and it is well established that, although section 5B(a) of the 1943 Act provides that the First-tier Tribunal “need not consider any issue that is not raised by the appellant or the Minister in relation to the appeal”, it is a necessary implication of that provision that it is quite proper for it to consider any issue it considers relevant provided that the parties are given an opportunity to address it. In an area of the law where, generally, neither party is represented by lawyers, there are bound to be cases where the First-tier Tribunal spots a point that has not been identified by the parties. The issues are not defined by the notice of appeal and the response in the way that the pleadings in a civil action in the courts define the terms of the proceedings and there is therefore no requirement for grounds of appeal formally to be amended if a new point is taken and a new point may be taken after the time for appealing has expired. The appeal is effectively construed as though the grounds had always included the new point. There are many instances where, in a similar manner, the law treats something as having been done earlier than it was actually done, particularly in order to avoid injustice in relation to procedural matters that would otherwise be caused by the passage of time. In a situation not very far removed from the present, it was held in R(SB) 8/88 that an appeal brought in respect of a claim for a social security benefit made by a person who had since died and which would otherwise have been a nullity could retrospectively be validated by a grant of letters of administration or by an appointment by the Secretary of State and reference was made in that case to the long-established doctrine of relation back under which a similar approach is taken. 53. Had the claimants in the first two cases before me been advised by a lawyer, with a correct understanding of the law, that the payability of constant attendance allowance was the key issue in determining their entitlement to a widow’s pensions, they would without doubt have brought posthumous appeals against the constant attendance allowance decisions at the same time as bringing their widow’s pension appeals. In these circumstances, where bringing such a posthumous appeal may be considered as a preliminary step necessary for success in their [2017] AACR 27 (SSD v CM) 23 widow’s pension appeals, I do not see any reason why the appeals brought should not have been taken by the First-tier Tribunal as having encompassed such posthumous appeals, provided that they would have been within time. This would not have been materially distinguishable from the First-tier Tribunal merely taking a new point in the proceedings. There was no procedural disadvantage to the Secretary of State. In particular, the evidence that had led him to reject the claims for constant attendance allowance was before the First-tier Tribunal in all of these cases and the presenting officers were ready to address the issue. The Secretary of State would, of course, have been at risk of paying out arrears of constant attendance allowance as well as widow’s pension but, if the First-tier Tribunal was right on the facts and did not make any material error of law, that was no more than the claimant was entitled to. 54. Even if I am wrong about that and the scope of an appeal cannot be related back for the purpose of compliance with time limits, the First-tier Tribunal is certainly entitled to invite a further appeal at a hearing if the absolute time limit has not expired and is equally entitled to waive formalities, although it would be wise, when the claimant is present so that it is practical, to ask for a written document signed by the claimant, saying that she wished to appeal against the decision refusing constant attendance allowance to her husband. These are public law proceedings conducted before tribunals in which the parties are not expected to have legal representation and, more importantly, they are not adversarial (see Kerr v Department of Social Development [2004] UKHL 23; [2004] 1 WLR 1372 (also reported as R1/04(SF)) at [61]) because the Secretary of State has an investigatory and adjudicatory function and as much of a duty to pay out benefits to which the claimant is entitled as he has to withhold benefits to which the claimant is not entitled. In such proceedings, the First-tier Tribunal is entitled to help a claimant to avoid obstacles that are merely procedural and, indeed, one might expect the Secretary of State to do so too. 55. Mr Buley submitted that the First-tier Tribunal cannot be found to have erred in law for not treating the claimants as having appealed against the constant attendance allowance decisions or for not having invited appeals, because a tribunal is obliged to take a point not advanced by a party only where it is “Robinson obvious” (see R v Secretary of State for the Home Department, ex parte Robinson [1998] QB 929). Since section 5B(a) of the 1943 Act makes specific provision limiting the First-tier Tribunal’s obligation to consider points not raised by the parties, perhaps the more relevant authorities – because provisions equivalent to section 5B(a) of the 1943 Act were in play – are Mongan v Department for Social Development [2005] NICA 16 (reported as R3/05(DLA)) and Secretary of State for Work and Pensions v Hooper [2007] EWCA Civ 495 (reported as R(IB) 4/07), but the principle is the same and I readily accept that section 5B(a) of the 1943 Act requires a less expansive approach to the scope of an appeal than that suggested by Mr Lyons. 56. However, the crucial points in each of the first two cases before me are, first, that the fundamental error of law made by the First-tier Tribunal was in misconstruing the 2006 Order in a way that meant that a posthumous appeal against the constant attendance allowance decisions was unnecessary and, secondly, that it implicitly found that the claimant’s husband had been “eligible” (in the sense in which that word is used in the 2006 Order) for constant attendance allowance even though it erred in finding that constant attendance allowance had been “payable”. Had the First-tier Tribunal not made that error of law, its finding that the claimant’s husband had been eligible for constant attendance allowance would, in my judgment, have made it obvious that it needed at least to consider whether to treat the claimant as having appealed against the constant attendance allowance decision. Once the Upper Tribunal sets aside the First-tier Tribunal’s decision in the light of that error, it may, in exercising its power under section 12(2)(b)(ii) of the [2017] AACR 27 (SSD v CM) 24 2007 Act to “ re-make the decision”, exercise any power that the First-tier Tribunal had irrespective of whether, in the decision that has been set aside, the First-tier Tribunal considered exercising that power or was obliged to do so. 57. Moreover, even if the First-tier Tribunal had the power only to invite another appeal, I consider that the Upper Tribunal, in setting aside the First-tier Tribunal’s decision in the first two cases before me, could treat it as having invited an appeal and treat the claimant as having lodged such an appeal at the hearing, as she would doubtless have done. Any other approach would lead to the Secretary of State gaining an unwarranted advantage as a result of the First-tier Tribunal’s error of law and I do not consider that section 12 of the 2007 Act is to be construed to that effect. In my judgment, where a decision is set aside and the Upper Tribunal exercises its power to remake the decision, the power to re-make the decision includes a power to give the decision that the First-tier Tribunal should have given in the first place in the circumstances before it, although I do not doubt that it also includes a power to make the decision afresh, taking into account new evidence as the First-tier Tribunal would if the case were remitted. Section 12 should be construed as far as possible so as to enable the Upper Tribunal to put the parties in the position in which they would have been had the First-tier Tribunal not erred in law. As I have said, it is to avoid unfairness due to the mere passage of time that the law sometimes allows a person to be treated as having done something in the past that was not actually done then. 58. Accordingly, I am satisfied that, given the history of each of the first two cases before me, the claimant should now be treated as having brought a posthumous appeal against the decision to refuse her husband constant attendance allowance when she submitted her widow’s pension appeal, although in the second case there will be a question whether it should be admitted since it was brought outside the basic 12 months’ time limit. If that appeal is admitted, I will not need to consider whether, since a notice of appeal must currently be sent to the Secretary of State rather than direct to the First-tier Tribunal, the claims for widows’ pensions sent to the Secretary of State could also have been treated as posthumous appeals against the constant attendance allowance decisions. 59. I will consider below the implications for each of those two cases of treating the claimant as having made a posthumous appeal against the relevant constant attendance allowance decision. 60. However, one provision that needs to be remembered in any posthumous appeal is section 5B(b) of the 1943 Act, which precludes the First-tier Tribunal from taking into account any circumstances not obtaining at the time when the decision appealed against was made. For the purposes of these claimants’ constant attendance allowance appeals, that has the effect that no account can be taken of any deterioration in the claimant’s husband’s health leading to an increase in his need for attendance after the date on which he was refused constant attendance allowance, so that making findings as to the position in the last 26 weeks of his life, as the First-tier Tribunal did in each of these cases, may not be sufficient if the decision was made more than 26 weeks before he died. The dispensing instruments 61. Although the 2006 Order provides for the principal scheme of pensions in respect of disablement and death due to service before 6 April 2005, the three dispensing instruments remain in force. These are the Order in Council of 19 December 1881 in respect of former members of the Royal Navy and Royal Marines, the Royal Warrant of 27 October 1884 in respect of former [2017] AACR 27 (SSD v CM) 25 soldiers in the Army and the Order of His Majesty dated 14 January 1922 in respect of former members of the Royal Air Force. The Royal Warrant states: “OUR WILL AND PLEASURE is that it shall be competent for Our Secretary of State, with the concurrence of the Lords Commissioners of Our Treasury, to grant, in exceptional cases, Pay, Non-Effective Pay, and other Emoluments or Allowances, at rates, or to persons, other than those mentioned, or under conditions other than those laid down in any of Our Warrants or Regulations; PROVIDED ALWAYS that a list of the grants thus approved as the Lords Commissioners of Our Treasury may direct, and a statement of the grounds on which they have been made, shall be annually laid before Parliament”. The Order in Council and Order of His Majesty are to similar effect, although the drafting is more elaborate. Each confers a power to make payments “in exceptional cases”. 62. I do not know how much recent use, if any, has been made of the dispensing instruments, but the evidence in these cases is that they were widely used in the 1970s to make awards in individual hard cases and they were also used sometimes as authority for the making of awards in a class of case. However, generally, the expectation was that a suitable amendment to legislation would be made at a convenient moment, rather than there being prolonged reliance on the dispensing instruments for a class of case, unless the incidence of such cases was expected to be very rare. Thus, they acted as precursors to article 26 of the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011 (SI 2011/517), which makes provision for what are called “temporary awards” under the Armed Forces Compensation Scheme. 63. The relevance of the dispensing instruments to these appeals is that, during the course of the proceedings, I suggested that it could be argued that, if there were an established concession under a dispensing instrument that a widow’s pension would be paid in any case where the claimant’s late husband’s disablement was assessed at 80 per cent and he satisfied the conditions set out in article 8 of the 2006 Order for payment of a constant attendance allowance for 26 weeks before his death but had not made a claim for it, an appeal lay under section 1(3) or (3A) of the 1943 Act against the rejection of a claim under the instrument. In other words, it could be argued that there was an appeal on the issue of fact as to whether the claimant fell within the scope of the concession. The claimants were happy to adopt the point, possibly out of politeness rather than any real belief in it. 64. I have set out in the annex to this decision a number of letters that provide evidence of the concession relevant to this case. 65. At the first hearing before me, the only evidence of the terms of the concession and the basis on which it was made consisted of the letters of 20 March 1973 and 6 January 1976 from the Treasury to the Department of Health and Social Security. The Secretary of State resisted the notion that there might be a right of appeal on the grounds (a) that the concession in this case was not made under a dispensing instrument at all, (b) that, if it were, the claim would be under the concession rather than under the royal warrant, order in council or royal order, (c) that the concession merely permitted the making of an award rather than requiring it and (d) that rejection of a claim under the concession would not be on the grounds that the claimant’s husband’s death [2017] AACR 27 (SSD v CM) 26 was not due to or substantially hastened by service but on the ground that the terms of the concession were not satisfied. 66. The counter arguments were (a) that the letter of 20 March 1973 was ambiguous but it would be improper to make the concession otherwise than under dispensing instruments, (b) that a decision made under a concession made under a relevant instrument should be treated as made under the instrument, in the same way that a decision made under regulations made under an Act is treated as made under the Act, (c) that there may be a public law duty to make an award under a policy that is expressed in permissive terms and (d) that the concession should be read as deeming the deceased’s death as having been due to or substantially hastened by service in the same way that article 22(3) and (4) of the 2006 Order does, it not having been suggested that an appeal does not lie under section 1(3A) of the 1943 Act in a case arising under those paragraphs of that article. 67. It became clear during the hearing that it would be helpful to have further evidence as to the precise terms of the concession and the basis upon which it was made and so the Secretary of State undertook to ferret out such of the surrounding correspondence as he could and make it available. This he has done and the further documents now included in the annex to this decision have led him to shift his position and, in particular, to accept that the concession is made under the dispensing instruments. 68. It should be noted that the article 25(3) mentioned in the correspondence was article 25(3) of the Royal Warrant of 19 September 1964 (Cmnd 2467 – the principal instrument setting out the main scheme then current in respect of former soldiers in the Army), as amended, and was a forerunner of article 22(3) of the 2006 Order (save that then it applied only if the rate of constant attendance allowance payable was “not less than the normal maximum rate for the time being”). It had been introduced with effect from 20 September 1971 by the Royal Warrant of 16 July 1971 (Cmnd 4742). It is also important to note that the Royal Warrant of 19 September 1964 did not include any provision in respect of claims and, in particular, did not expressly make a claim a condition precedent to the making of an award or require a claim to be in writing or in any particular form. There was no equivalent of article 34 of the 2006 Scheme until 1996 (see article 3 of the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Amendment (No. 3) Order 1996 (SI 1996/2882)). There was also no appeal against decisions in respect of constant attendance allowance until section 5A was inserted into the 1943 Act in 2001. 69. The Secretary of State originally suggested that the third of the categories mentioned in the letter of 20 March 1973 was the one potentially relevant to these cases but, having discovered the letter of 15 February 1973 to which the later letter was the reply, he now submits that it is the first of the categories that is most arguably potentially relevant and that the third of the categories may have become completely unnecessary. 70. Put crudely, the first of the categories identified in the correspondence is where it is considered that a widow’s pension should be paid in the light of fresh medical evidence as to the widow’s husband’s need for attendance provided since his death, the second is where it is considered that a widow’s pension should be paid on reconsideration of evidence provided before her husband’s death and previously taken into account on a claim by him for constant attendance allowance and the third is where it is considered that a widow’s pension should be paid on consideration of evidence provided before her husband’s death but not taken into account on a claim by him for constant attendance allowance. I agree that in the present cases the third [2017] AACR 27 (SSD v CM) 27 category appears irrelevant but I am not sure that that category has become unnecessary in all cases. 71. As the Secretary of State submits, the third category was concerned with cases where there was, or it could be implied that there was, a claim for constant attendance allowance outstanding at the date of death. It appears that there was some doubt as to whether in such a case death occurred “at a time when an allowance in respect of constant attendance allowance was payable to him”. As I have already indicated, it is rightly accepted by the Secretary of State that under the present legislation an outstanding claim could be determined posthumously and an award made having the effect that constant attendance allowance was payable at the time of death. It is unnecessary to consider whether that would also have been the true position in 1973. 72. I agree with the Secretary of State that it is unnecessary to rely on any concession in cases where there was an outstanding claim for constant attendance allowance at the date of death. However, article 34(1) of the 2006 Order does not appear to permit implied claims for constant attendance allowance; a claimant must complete and sign a form and cannot be treated as having made a claim merely because he has produced evidence that is sufficient to prove that the other conditions of entitlement are satisfied. Thus, there is a question whether the third category should now be read as though it had been rewritten so as to apply in cases where evidence was provided before the claimant’s husband’s death but there was no effective claim for constant attendance allowance or whether it should be regarded as having lapsed upon the introduction of the forerunner of article 34. 73. Questions also arise as to whether “medical evidence” has a meaning that does not extend to testimony from claimants and whether “fresh medical evidence” means only medical evidence that could not reasonably have been provided in support of a claim for constant attendance allowance before the claimant’s husband’s death. The first of those questions is raised by Mr Buley on behalf of the Secretary of State, who contends that a narrow approach should be taken. I need merely observe that, while the evidence of doctors is clearly important on matters of causation and can be important on issues of loss of function, the principal evidence as to a person’s need for attention or supervision usually comes from that person or those providing the attention and supervision and, in any event, the practice of the Secretary of State seems to be to refer all cases to a medical advisor and the medical advisor’s assessment of the claimant’s evidence is arguably medical evidence even on a narrow construction. 74. Indeed, it seems that in practice the Secretary of State (who until documents were unearthed for the purpose of this case appears to have forgotten some of the details of the concession and the fact that it was made under the dispensing instruments) takes a very nontechnical approach to all three categories mentioned in the correspondence, and acts on the basis that their combined effect is that a widow’s pension is awarded in any case where her husband’s disablement was assessed at at least 80 per cent and a medical advisor advises him that he would have satisfied the conditions for entitlement to constant attendance allowance for at least 26 weeks before his death had he made a claim. This appears from the wording of the front of the claim form and the wording of the form used by medical advisors to which I have referred above and also from a submission made by the Secretary of State to the First-tier Tribunal in the third of the cases before me after the claimant had raised the question of “a backdated attendance allowance” in her reply to the Secretary of State’s response to her appeal. The Secretary of State submitted: [2017] AACR 27 (SSD v CM) 28 “… [The claimant] also requests ‘backdated attendance allowance’. If [the claimant] means War Pension Constant Attendance Allowance (CAA), the Secretary of State would draw attention to the reasons for decision dated 30.05.14 [ie, the medical advisor’s reasons]. As with all claims for War Widows Pension, where War Disablement Pension was assessed at 80 per cent or more at the time of death, the Medical Advisor considers whether CAA would have been appropriate for the 26 weeks prior to death, had it been claimed. This ensures that the widows of pensioners with a high percentage assessment, and who are not in receipt of CAA at death, are not precluded from the automatic entitlement provisions or disadvantaged by virtue of the fact that they did not claim CAA prior to their death. The reasons dated 30.05.14 give the reason why CAA would not have been appropriate for the 26 weeks prior to [the claimant’s husband’s] death.” This leads me to think that the three categories identified by the Department of Health and Social Security were merely the result of an analysis of the types of case that fell within the broad class of cases where people had not been receiving constant attendance allowance at the requisite rate but had satisfied the criteria for an award at that rate and that the Department considered that awards under the dispensing instruments were merited in all those cases. 75. The Secretary of State now submits that the letter of 20 March 1973 did not include a general concession in respect of the first two categories but merely indicated that the Secretary of State might seek approval to use the dispensing instruments in those cases. I agree, and I also agree that it appears to have been considered at that time that it was unnecessary to rely on the dispensing warrants in the third category. The Secretary of State further submits that paragraph 5 of the letter of 6 January 1976 is to be construed as referring to the first two categories and that the 26-week qualifying period was now to apply to them as well. Insofar as it might be necessary to rely on a dispensing instrument in relation to the third category for the reasons I have given above, I would be inclined to read that letter as referring also to the third category. I also incline to the view that it did not extend the 26-week qualifying period to the first two categories because that period already applied to them. That is not obvious if the letter of 20 March 1973 is read in isolation but it becomes apparent when the letter of 15 February 1973 is read because it can then be seen that all three categories were concerned with treating the conditions of article 25(3) of the Royal Warrant of 19 September 1964 as having been satisfied when they were not. 76. The position therefore appears to be that the Secretary of State and his predecessors have had for forty years a practice, sanctioned by the Treasury, of treating as “exceptional” all cases where a widow’s late husband’s disablement was assessed at 80 per cent or more at the time of death and a medical advisor has advised that he would have been entitled to constant attendance allowance for the 26 weeks prior to death had it been claimed and, accordingly, of paying widows’ pensions in such cases on the basis that death is to be treated as due to service. How and why the practice has survived for so long, becoming entrenched in practice and openly acknowledged but not being incorporated into the legislation, I am not sure but have not enquired. [2017] AACR 27 (SSD v CM) 29 77. Does an appeal lie under section 1(3) or (3A) of the 1943 Act against the rejection of a claim under that practice? I have come to the conclusion that it does not. I accept the Secretary of State’s submission that the Treasury’s authority still leaves the Secretary of State to determine whether any individual case is exceptional so as to fall within the scope of the power to make a payment under the relevant dispensing instrument. Ordinarily, it would be impossible to argue that the 1943 Act made provision for an appeal against a decision under a dispensing instrument to the effect that a case was not “exceptional”. I do not consider that the facts that the practice has become general and that it has been explained as involving treating death as due to service can make any difference and make the decision one in respect of which an appeal may be brought under section 1(3) or (3A) of the 1943 Act. There clearly cannot be a right of appeal as to the scope of the Treasury’s concession, on the ground that, say, the death of an ex-serviceman who would have satisfied the conditions of entitlement to constant attendance allowance for only 13 weeks had he claimed should be treated as due to service, and I am not persuaded that any appeal lies against the Secretary of State’s assessment of the facts in any particular case either. 78. I recognise that a Tribunal of Pensions Appeal Commissioners in Northern Ireland has held there to be a limited right of appeal against a refusal to make a temporary award under the Armed Forces Compensation Scheme in arguably analogous circumstances (Secretary of State for Defence v FA (AFCS) [2015] NICom 17; [2016] AACR 27), but that decision turned on the wording of the relevant legislation providing for rights of appeal against decisions under the Scheme and I do not consider it right to extend the approach here. Although, as the Secretary of State appears to accept, section 1(3) and (3A) of the 1943 Act must be construed as having, since 1971, conferred a right of appeal against a decision not to treat a death as due to service under article 22(3) of the 2006 Order and its predecessors, I do not consider that it can be stretched to include a right of appeal against a decision made under a dispensing instrument because the dispensing instruments do not themselves provide for treating a death as due to service. The dispensing instruments confer a discretionary power to make payments in exceptional cases and the Secretary of State’s view that a death should be treated as though it were due to service where the deceased was eligible for, but did not claim, constant attendance allowance for 26 weeks before his or her death is no more than a reason for exercising the power. That death should be treated as due to service is not a condition that needs to be fulfilled before such a payment can be made. Indeed, it would be surprising if there were a right of appeal in respect of the application of a practice when the practice itself could be withdrawn or modified at any time through executive action. 79. On the other hand, it may well be that the existence of a clear policy as to the type of cases that might be regarded as exceptional opens the way to challenges by way of judicial review if there is an apparent failure to apply the policy without there being a good reason, but such proceedings would have to be brought initially in the High Court or, in Scotland, the Court of Session and there are no such proceedings before me. Responses to appeals to the First-tier Tribunal 80. Before I turn to the facts of the individual cases, there is one further general matter to which I wish to draw attention. It will be apparent from what I have said above that in none of these cases did the First-tier Tribunal identify article 34 of the 2006 Order as a relevant provision and in only one of them did it expressly identify article 22(3) as being important. Moreover in all three cases, the First-tier Tribunal understood it to be necessary to consider whether the [2017] AACR 27 (SSD v CM) 30 claimants’ husbands had been eligible for constant attendance for 26 weeks before their deaths, despite there being no reference to a 26-week qualifying period anywhere in the legislation. The Secretary of State may be entitled to expect the First-tier Tribunal to be familiar with the law but in my view he must take some responsibility for the errors of the First-tier Tribunal in these cases and for a general culture in which the law is scarcely acknowledged. It should not be forgotten that tribunal proceedings are legal proceedings before a judicial body. 81. Rule 23 of the 2008 Tribunal Procedure Rules provides: “23. – (1) When a decision maker receives the notice of appeal or a copy of it, the decision maker must send or deliver a response to the Tribunal as soon as reasonably practicable after the decision maker received the notice of appeal. (2) The response must state – (a) …; (b) …; (c) …; (d) …; (e) whether the decision maker opposes the appellant’s case and, if so, the grounds for such opposition; and (f) any further information or documents required by a practice direction or direction. (3) The response may include a submission as to whether it would be appropriate for the case to be dealt with without a hearing. (4) The decision maker must provide with the response – (a) a copy of any written record of the decision under challenge, and any statement of reasons for that decision; (b) copies of all documents relevant to the case in the decision maker’s possession, unless a practice direction or direction states otherwise; and (c) a copy of the notice of appeal, any documents provided by the appellant with the notice of appeal and, unless stated in the notice of appeal, the name and address of the appellant’s representative (if any).” 82. Rule 23(2)(e) is of the utmost importance and it is clear from the structure of the rule (albeit that the clarity is undermined by rule 23(2)(f)) that what is required from the Secretary of State is a document setting out the Secretary of State’s case in addition to the documents required by rule 23(4). The standard document that was included at the front of the bundle of documents in each of these cases, recording a “Summary for [sic] issues for Determination” and “Terms of Reference”, does not comply with rule 23(2)(e). It is not good enough for the Secretary of State to do what he did in each of these cases, which was to provide the First-tier [2017] AACR 27 (SSD v CM) 31 Tribunal with a bundle of documents and leave the claimant and the First-tier Tribunal to work out from them whether, and if so why, the appeal was opposed. 83. The Secretary of State argues that there was not actually a breach of the Rules because the First-tier Tribunal, if well-versed in the law as it should be, could have worked out what the issues were. However, in my judgment, that is beside the point. The current approach of the Secretary of State, which seems to have been the approach regarded as acceptable before the Pensions Appeal Tribunal in England and Wales and which may still reflect the procedural rules in force in Scotland and Northern Ireland, is not helpful and is capable of being positively unfair to unrepresented claimants who are not made aware of the issues that could be raised in their cases. Thus, in the present cases, where the Secretary of State’s reasons for refusing a widow’s pension made no reference to the fact that constant attendance allowance and unemployability allowance were not payable to the claimant’s husband, how could the claimant be expected to realise that if one of those allowances had been payable she could raise that as an issue on the appeal unless sections 22 and 23 were set out or the claimant happened to be represented by a competent representative or had otherwise acquired the relevant knowledge? The law should not be set out in a response in a way that makes things unduly complicated for a claimant, but it should be set out to the extent necessary to inform the claimant of his or her rights (and, indeed, what the Secretary of State regards as the limits of those rights). 84. I recognise that the extent to which the Secretary of State can comply with rule 23(2)(e) depends partly on the extent to which the claimant has complied with rule 21(5)(e), which requires a claimant to include in his or her notice of appeal “the grounds on which the appellant relies” and compliance with which in turn will depend partly on the amount of information that the claimant has obtained about the benefit in question and also on the extent to which the Secretary of State has given reasons for his decision. At the time the appeals were brought in these cases, there seems to have been no standard form for appealing to the First-tier Tribunal to encourage claimants to provide grounds of appeal. But even where the claimant provides no clear grounds, a response ought at least to provide a legal justification for the decision that has been given in terms that allow a claimant to see what arguments he or she might advance. The assistance given by the Secretary of State to the First-tier Tribunal and the claimants in these cases was derisory. 85. The “Summary for [sic] issues for Determination” does not in fact identify the issues in the case in question. It appears to be a standard document that refers to sections 1(1), 5b [sic] and 6(4) of the 1943 Act, ignoring the fact that section 1(1) applies only in disablement cases and that the second provision that he has in mind is section 5B, rather than section 5b (which does not exist). 86. Unless a claimant raises particular issues in his or her grounds of appeal or subsequently, the Secretary of State appears to rely on the First-tier Tribunal and the claimant identifying the issues from the, usually laconic, reasons given to the claimant for the decision or, more often, the reasons given by the medical advisor for issuing, or refusing to issue, a certificate, supplemented by medical appendices and extracts from the legislation, often called legal appendices and the relevance of which is seldom explained. If particular issues are raised by a claimant, a further comment or submission, of the type seen in the first and third of these cases, is also added. 87. In each of these three cases, the medical advisor gave cogent reasons for refusing a certificate, but those reasons were associated with the reasons for advising that the claimant’s husband would not have qualified for constant attendance allowance for the 26 weeks before his [2017] AACR 27 (SSD v CM) 32 death. Nowhere was the limited purpose of that advice explained. Moreover, in none of these cases was there any reference anywhere to article 23 of the 2006 Order, under which the claims for widows’ pensions were made, or, except in the first case, to article 22. In the other two cases, the only legal appendix submitted by the Secretary of State was that in respect of article 41 of the 2006 Order, which also set out the text of article 43(b). Even in the third case, where there was a submission purportedly addressing the claimant’s request for a back-dated constant attendance allowance, the Secretary of State failed to explain that the medical advisor’s advice about entitlement to constant attendance allowance was not related to a matter arising on the claimant’s appeal and failed to refer to articles 8, 22, 23 or 34 or explain that it was too late for a posthumous appeal. In these circumstances, it is perhaps little wonder that the First-tier Tribunal went astray in each case in the way that it did. 88. I do not wish to be prescriptive as to the contents of a response – the views of the Chamber President of the War Pensions and Armed Forces Compensation Chamber of the Firsttier Tribunal would be more relevant than mine – but I would suggest that cutting and pasting relevant legislative provisions into a document that explains what the case is about by reference to the documents in the bundle would be helpful. Most cases, of course, turn on issues of fact or medical opinion, but a response to an appeal should explain briefly the legal framework in which those issues arise. 89. Such a document would provide a proper background for consideration of a case at a hearing and submissions by the parties. In the present cases, there seems to have been no detailed discussion at the hearings as to the statutory basis of the Secretary of State’s decisions. The nearest there was to such a discussion was in the first of the cases before me, to which I now turn. The first case – facts and conclusion 90. The claimant’s husband in the first case served in the 1960s in the Royal Northumberland Fusiliers and, upon amalgamation, the Royal Regiment of Fusiliers, being medically discharged as a result of back problems arising out of injuries accepted as being due to service. He had been a smoker and died of lung cancer on 30 April 2014, the disease having first been diagnosed in 2011. At the time of his death, he had a composite assessment of disablement of 90 per cent in respect of nine identified conditions. Most materially, they included spondylolisthesis (20 per cent), cervical spondylosis (6–14 per cent) and “internal derangement of the left knee” (40 per cent) and the Secretary of State appears also to have accepted that falls in 1993 and 1999 due to those injuries had caused further injuries, including two fractured ribs, that were therefore accepted as attributable to service. 91. In March 2013, the claimant’s husband had both applied for a review of the assessment of disablement and claimed constant attendance allowance on the ground that his spine was deteriorating but, on the application for review, he also said that “I now have cancer of the lung which I feel could be linked to the cordite from firing live rounds whilst in the Army on active service” (see document 62). A medical examination took place at his home on 31 May 2013, as a result of which the examining doctor completed two report forms, one in respect of the assessment of disablement and the new claimed condition of lung cancer (document 94–101) and one in respect of constant attendance allowance (document 332–334). In the latter report, he advised that the claimant’s husband’s neck, back, knee, shoulder and rib problems were all longstanding and were unlikely to change but that the lung cancer was of relatively recent onset and incurable. As to his need for attendance, it was said that he needed help with dressing his lower [2017] AACR 27 (SSD v CM) 33 half, help over the bath side and occasional help out of bed but was largely self-caring, needing less than one hour of attendance per day and not requiring any attendance at night. It was also advised that his need for attendance at that time was entirely due to the disablement caused by the accepted conditions but that it was likely to increase as the lung cancer progressed. 92. On 21 November 2013, the claimant’s husband was sent a standard letter informing him that he was not eligible for constant attendance allowance. 93. On 12 December 2013, a medical advisor refused to certify that lung cancer was attributable to service on the ground that he or she had been unable to find any reference to cordite exposure being a cause of lung cancer, whereas smoking was the principal cause of lung cancer but was generally excluded from consideration as a service cause (document 72). Whether a decision refusing to review the assessment of disablement, or reviewing but maintaining it, was issued in the light of that advice I do not know and is not now material. 94. In her claim for widow’s pension, the claimant contended that the injuries due to her husband’s service in the Army “contributed to his overall health and ultimately contributed to his death” (document 107). The medical advisor said (document 4): “Although [the claimant’s] comments are noted, his accepted conditions would not cause adenocarcinoma of the lung. He had a 90 per cent assessment for the accepted conditions, however, hospital case notes dated 17/12/2013 indicated that he was self-caring. He would not therefore have met the criteria for CAA in the 26 weeks prior to his death.” 95. As explained above, the claimant appealed against the consequent decision on the ground that her husband’s disablement had been assessed at 90 per cent and he had been in receipt of relevant allowances, without apparently knowing what the allowances were. At the hearing, her representative conceded that her husband’s death had not in fact been due to, or substantially hastened by, service. The case was argued on the basis of the claimant’s husband’s eligibility for constant attendance allowance. His claim for constant attendance allowance, the relevant report of the examining doctor and the decision of the Secretary of State refusing the claim, none of which was in the original bundle of documents supplied by the Secretary of State, were all produced to the First-tier Tribunal at the hearing by the Secretary of State’s representative, apparently in response to questions asked by the First-tier Tribunal. Although there had been no reference to the terms of article 8 of the 2006 Order in the documents before the First-tier Tribunal, there were experienced, albeit non-lawyer, representatives for both the Secretary of State and the claimant and in those circumstances the First-tier Tribunal proceeded, after a short adjournment, to consider whether the claimant satisfied the conditions for eligibility to constant attendance allowance under article 8, without any protest from either representative, although the Secretary of State’s representative’s said that he thought that the basis on which the Secretary of State considered whether a widow’s late husband would have been awarded a constant attendance allowance for at least 26 weeks before his death had he made a claim was a “convention” rather than a specific article within the 2006 Order. He appears not to have added that the issue was therefore outside the First-tier Tribunal’s jurisdiction, perhaps confident that the First-tier Tribunal would not think it was unless it was persuaded by the claimant’s representative that the issue fell to be considered under the 2006 Order. [2017] AACR 27 (SSD v CM) 34 96. As also mentioned above, the First-tier Tribunal, who had been referred to article 27 of the 2006 Order but not to article 23, may have accepted the claimant’s representative’s argument that the question whether constant attendance allowance had been payable to the claimant’s husband under article 8 arose before it under article 27. In any event, it said in its statement of reasons: “12. The issue before the Tribunal is whether the Tribunal can stand in the shoes of the Secretary of State in relation to Article 8 and make a decision that [the claimant’s husband] could have been awarded CAA if it was satisfied that constant attendance on him was necessary on account of disablement. There is no issue between the parties that the Tribunal has the power to make this decision. …” 97. The Temporary Chamber President of the First-tier Tribunal refused permission to appeal on the ground that that passage appeared to him to record a concession by the Secretary of State as to the First-tier Tribunal’s jurisdiction. The presenting officer denies making any such concession. I accept that he did not, particularly as such a concession would have been inconsistent with his submission, recorded by the members of the First-tier Tribunal in their notes of the proceedings, that consideration of eligibility for constant attendance allowance had been outside the 2006 Order. 98. However, I consider this to be unimportant, for two reasons. First, the wording of the second sentence of paragraph 12 of the statement of reasons may merely reflect the presenting officer not having explicitly made the point that the First-tier Tribunal would not have jurisdiction if the issue of eligibility for constant attendance allowance arose outside the scope of the 2006 Order and with him apparently being content for the First-tier Tribunal to consider the factual dispute without there being an adjournment if the issue arose within the scope of the 2006 Order. Reading the statement of reasons as a whole, it seems to me that the First-tier Tribunal was persuaded that the question of the claimant’s husband’s eligibility for constant attendance allowance did arise under the 2006 Order and therefore that it rejected the presenting officer’s submission that consideration of the claimant’s husband’s eligibility for constant attendance allowance had been a matter of concession. Thus, on its view, no issue about jurisdiction arose because it could not be, and clearly was not, disputed that it had jurisdiction to determine questions arising under the 2006 Order and should do so standing in the Secretary of State’s shoes. Secondly and in any event, it is trite law that parties to proceedings cannot confer on a tribunal a jurisdiction that it does not have (see Essex Incorporated Congregational Church Union v Essex County Council [1963] AC 808) and there can be no question of the matter being res judicata in this case because this is an appeal from the very decision of the First-tier Tribunal in which the matter was determined. Therefore what was or was not conceded before the Firsttier Tribunal in relation to its jurisdiction is now irrelevant. 99. For the reasons I have given above, I am satisfied that the First-tier Tribunal erred in law in its approach to the 2006 Order and that the claimant could not qualify for a widow’s pension in this case unless she was first successful in a posthumous appeal against the decision refusing her husband constant attendance allowance. However, I am also satisfied that, because she submitted her widow’s pension appeal on 14 August 2014 which was within the time for appealing against the decision dated 21 November 2013 refusing constant attendance allowance to her husband, her appeal could have been treated by the First-tier Tribunal as being also an appeal against the constant attendance allowance decision and should now be treated as such. [2017] AACR 27 (SSD v CM) 35 100. The question then arises whether I should remit this case to the First-tier Tribunal or whether the First-tier Tribunal made sufficient findings to enable me to give the decision that it should have given in the light of those findings. 101. The First-tier Tribunal found that the claimant’s husband: “would have been entitled to Constant Attendance Allowance for at least 26 weeks before his death, ie from 30/10/13 to 30/04/14. The Tribunal finds that the necessary attendance consisted of frequent or regular attendance for periods during the daytime which totalled less than eight hours per day and attendance on two or more occasions per night. The Tribunal finds that the constant attendance was necessary on account of the conditions for which [he] had an award of 90 per cent.” That amounts to a finding that he would have been entitled to an award of constant attendance during that period at the full day rate under article 8(3)(b) of the 2006 Order. 102. However, the Secretary of State submits that the First-tier Tribunal either wrongly took into account disablement arising out of the lung cancer or else reached a conclusion that was not supported by any evidence. He relies on the definition of “injury” in paragraph 1 of Part II of Schedule 6 to the 2006 Order, which excludes any injury due to “the use or effects of tobacco”. He also points out that the medical advisor had relied on entries dated 17 December 2013 in hospital case notes, made when the claimant’s husband was admitted to hospital suffering from pneumonia and indicating that he was self-caring, and that there was no evidence of subsequent deterioration in his condition for any reason other than the lung cancer. On the other hand, Mr Lyons submits that the First-tier Tribunal reached a conclusion it was entitled to reach and gave adequate reasons for doing so. 103. There is certainly force in Mr Lyons’ submission that the Secretary of State overlooks the First-tier Tribunal’s reasoning. It is clear that the First-tier Tribunal did not accept that the claimant’s husband was entirely self-caring in December 2013, as submitted by the Secretary of State. It preferred the claimant’s oral evidence to what had been recorded in the medical notes and it expressly rejected the presenting officer’s submission that her husband’s needs would have reduced when he had adaptations to his house in December 2013. In the light of the claimant’s evidence, it found that her husband’s condition had deteriorated considerably between the date when he made his claim for constant attendance allowance in March 2013 and October 2013 and that by the latter date he required the attention identified in its statement of reasons: “21. … He required necessary attendance to get in and out of the bath and in and out of the shower when provided, to wash his lower body, to put on his E45 cream, to dress, to take his medication, to help him clean himself after using the toilet, to go to the bathroom 2 or 3 times a night and to get him in and out of bed safely. He was drowsy from his opiate medication in the evenings and could not be trusted with hot water to make a drink.” It plainly did not regard subsequent deterioration in his condition to be relevant to its decision. 104. The First-tier Tribunal also clearly accepted that it was material that some of the claimant’s husband’s attendance needs arose out of his lung cancer, which was not an accepted condition, because it said in its statement of reasons: [2017] AACR 27 (SSD v CM) 36 “25. The Tribunal found that [the claimant’s husband] had necessary attendance needs arising from both the attributable conditions, and from lung cancer which was a rejected condition. The Tribunal considered that it was the totality of his conditions which led to his frailty and not just his lung cancer. [He] had an award of 20 per cent for Spondylolisthesis, L5 vertebrae and cervical Spondylosis 6-14 per cent. There is no doubt that these conditions would have contributed to walking difficulties and instability.” 105. However, the Secretary of State’s argument of principle may be applied to the deterioration in the claimant’s husband’s condition between March and October 2013, rather to the period from December 2013 to April 2014. The First-tier Tribunal did not make any finding as to whether the cause of the deterioration was due to a worsening in his accepted conditions or to the lung cancer. If the former, it would have been necessary to explain why it disagreed with the prognosis of the examining doctor. If the latter, it would have been necessary for it to explain why it nonetheless considered that the claimant’s need for attendance arose from disablement due to the accepted conditions for the purposes of article 8(1) of the 2006 Order. 106. The First-tier Tribunal may have thought it was unnecessary to record such a finding and reasoning because the implication of what it said in paragraph 25 of its statement of reasons and its detailed findings of fact in paragraph 21 is that it considered that the claimant’s husband required attention due to the combined effects of his accepted conditions and the lung cancer. However, I do not consider that to be enough. 107. Article 8 of the 2006 Order does not directly address dual causation. The Secretary of State’s approach was formerly set out at paragraph 70355 of the WP Medical Advisers Instructions and Procedures: “If the Accepted Disablement is the main factor in the overall need for attendance, CAA can be awarded at the rate appropriate to the overall need. If the AD is not the main factor in the overall need, CAA can be awarded at a lower rate if the AD is the main factor at that lower rate.” Paragraph 297 of the Veterans Agency Medical Handbook was to the same effect. I am not aware of any change to that approach which, if applied with a due regard to the purpose of the legislation, is capable of taking account of the extent to which different disabilities may interact with each other and so may sometimes produce a need for attendance that might be greater than the sum of the needs that would arise from each of them taken separately. It does not necessarily provide a simple answer to any particular case and other approaches may be permissible if explained, but it provides a practical framework for deciding complex cases. 108. The claimant’s difficulties in the present case are that, on the examining doctor’s assessment of 31 May 2013, her husband’s need for attendance at that time was less than a quarter of that required even for the part day rate of constant attendance allowance under article 8(2) and that, even if the disablement due to his accepted conditions contributed to his greater need for attendance by the end of October 2013 or by the date of the Secretary of State’s decision on 21 November 2013, it does not necessarily follow that he was entitled to constant attendance allowance at the full day rate or even at the part day rate. On the other hand, the First-tier Tribunal was not necessarily bound to accept the examining doctor’s assessment and prognosis and, whether or not it did, it might have judged the contribution of the disablement due to the [2017] AACR 27 (SSD v CM) 37 accepted conditions to the claimant’s husband’s need for attendance in October or November 2013 to be sufficient to have qualified him for at least the part day rate. 109. These are issues on which the expertise of the medically-qualified member of a panel of the First-tier Tribunal would obviously be useful and, since I am satisfied that the First-tier Tribunal’s findings are not supported by adequate reasoning, I therefore remit the case to be redecided by a differently-constituted panel of the First-tier Tribunal. I do so on the basis that the remitted appeal is to be taken to include a posthumous appeal against the constant attendance allowance decision of 21 November 2013, which will obviously have to be determined before the First-tier Tribunal decides whether the claimant is entitled to a widow’s pension. The second case – facts and further direction 110. In the second case before me, the claimant’s husband had been a warrant officer pilot in the Royal Air Force during the Second World War, flying gliders, and he suffered serious injuries in an accident as a result of which he was medically discharged. He continued to suffer from the effects of those injuries for the rest of his life. The cause of his death on 14 November 2014 was certified as old age. 111. He had claimed constant attendance allowance in 2013 and was visited at home by a doctor on 17 September 2013 who made a report as a result of which the claim was rejected on 12 December 2013, which was just over a year before the claimant lodged her appeal against the rejection of her claim for a widow’s pension. On her appeal, the First-tier Tribunal heard evidence from the claimant and her son and recorded detailed findings before concluding: “10. The Tribunal was satisfied that [the claimant’s husband] was a very proud man who would have given the appearance of coping which the Appellant allowed him to do by helping him discreetly and that he did tell the doctor who assessed him in 2013 that he could do things even though that was not the case. It was satisfied that on account of his spinal and leg conditions his mobility was severely restricted and he was at risk of falling so he needed help with all aspects of his self care, moving and doing his exercises which would have amounted to at least eight hours a day as well as help going to the toilet frequently through the night. 11. It therefore found that although not paid, constant attendance allowance was payable to [the claimant’s husband] for about two years prior to his death and therefore that his death should be treated as due to service. Accordingly, it allowed the appeal.” The First-tier Tribunal appears to have been on familiar territory considering article 8 because its findings seem to be sufficient to enable it to be seen at what rate it considered that constant attendance allowance should have been paid – the intermediate rate under article 8(4)(a). 112. For the reasons I have given above, I am satisfied that the First-tier Tribunal erred in law in allowing the claimant’s appeal without first treating her as having appealed against the refusal of her husband’s claim for constant attendance allowance but, given the history of the case, I am also satisfied that the claimant’s appeal to the First-tier Tribunal should now be treated as having included a late appeal against the constant attendance allowance decision. 113. In my Directions dated 2 August 2016, I said at paragraph 2(e): [2017] AACR 27 (SSD v CM) 38 “In the absence of a ‘reasons’ challenge in [the claimant’s] case, treating her as having made a posthumous appeal against the refusal of constant attendance allowance would, it appears, lead to an award of constant attendance allowance on the basis of the First-tier Tribunal’s findings recorded at paragraphs 10 and 11 of its statement of reasons. It would therefore arguably be appropriate for the Upper Tribunal to make an award of constant attendance allowance at the intermediate rate from 18 September 2012 (the date of her husband’s claim, which is only just over two years before the date of his death on 4 November 2014) until his death and, in the light of that award, to confirm the First-tier Tribunal’s award of widow’s pension, albeit on different grounds. Does the Secretary of State have any objection to the Upper Tribunal giving a decision to that effect?” 114. The Secretary of State wished to challenge the power of the First-tier Tribunal or the Upper Tribunal to treat the claimant as having appealed against the constant attendance allowance decision and reserved his position on the particular issues relating to the disposal of the claimant’s case in the event of the challenge failing. The challenge has now failed. Accordingly, the Secretary of State must now make a submission as to the decision I should give. 115. The first issue is whether the late appeal against the constant attendance allowance appeal should be admitted. Given the history of this case, this is a matter that I currently consider should now be decided by the Upper Tribunal. Material circumstances include the fact that the claimant’s widow’s pension appeal was submitted a little under one month after the expiry of the basic 12- month time limit for bringing a posthumous appeal against the constant attendance allowance decision. Her husband had still been within time for appealing when he died. She herself had acted very promptly both in claiming a widow’s pension only a week after her husband’s death and in appealing just over two weeks after the decision rejecting her claim, notwithstanding the intervention of Christmas and the New Year. In her letter of appeal, she referred to the difficulties her husband had had and how much of an advantage it had been that she herself had been a trained nurse, which arguably suggests that, had she realised it was both possible and necessary if she were to receive a widow’s pension, she would at the same time have expressly brought a posthumous appeal against the constant attendance allowance decision. As far as I am aware, the possibility of bringing posthumous appeals is not widely advertised. 116. If the late appeal is admitted, there will then be the questions raised in my direction of 2 August 2016 as to the period of the award to be made and as to the rate. It would be possible to remit this part of the case but, while the findings may not be as precise as would be ideal, because the First-tier Tribunal did not have a posthumous appeal in mind, I am currently of the view that it would be more proportionate for the Upper Tribunal to re-make the decision in the light of the First-tier Tribunal’s findings and reasoning – not necessarily in the way I suggested in my Directions – because absolute precision is probably not achievable in this sort of case. However, since the possibility of the claimant being treated as having brought a posthumous appeal against the constant attendance allowance decision was clearly not in the Secretary of State’s mind when he appealed to the Upper Tribunal, I do not preclude him from arguing for remittal if he considers it arguable that the First-tier Tribunal’s did not give adequate reasons for its findings and that a further oral hearing is really necessary, but I would require some persuasion on the point and I do not encourage any such challenge. [2017] AACR 27 (SSD v CM) 39 117. I direct the Secretary of State to make a submission as to the final decision the Upper Tribunal should make within one month of the date on which this decision is sent to his representative. The third case – facts and conclusion 118. In the third case before me, the claimant’s husband had been an officer in the Royal Signals during the Second World War. He was wounded and captured in Greece in 1941 and remained a prisoner of war in Germany until 1945. He was released from service at the end of 1946. I do not know the full history of his claim for war pension, but at the time of his death on 6 February 2013 and presumably for many years before then, the assessment of his disablement was 100 per cent – 80 per cent in respect of bilateral noise-induced sensorineural hearing loss, due apparently to blast damage to his ears, and 20 per cent in respect of anxiety disorder. Although he required care towards the end of his life, when he was suffering from senile dementia, it was not accepted by the Secretary of State that that was due to the accepted conditions. A claim for constant attendance allowance was rejected on 9 June 2010. There was no appeal against that decision and no further claim. 119. The death certificate identified chronic obstructive pulmonary disease as having led to acute lower respiratory infection which was the direct cause of the claimant’s husband’s death, but senile dementia was certified as a significant condition contributing to the death. The Secretary of State did not accept that the claimant’s husband’s death was actually due to or substantially hastened by service and he accordingly refused her claim for widow’s pension. The claimant appealed. At the hearing, where the claimant was represented by her son, the judge indicated at the outset the First-tier Tribunal’s preliminary view that the claimant could not show that her husband’s death had been caused by the accepted conditions and no further consideration was given to that issue either at the hearing or in the statement of reasons for the First-tier Tribunal’s decision. The First-tier Tribunal proceeded to consider whether the claimant’s husband had been eligible for constant attendance allowance during the 26 weeks preceding his death and decided that he had not. On that basis, it dismissed the claimant’s appeal. 120. The claimant appealed to the Upper Tribunal. I have already allowed the appeal, on the ground that the First-tier Tribunal failed to give any reasons for finding that the claimant’s husband’s death was not actually due to or substantially hastened by service, which had not been conceded by the claimant and in respect of which it might have been material that the First-tier Tribunal found that his service-related anxiety disorder had been subsumed in the diagnosis of senile dementia, and I have remitted the case to the First-tier Tribunal. It is therefore unnecessary for me to say any more other than that the remitted case must be decided in accordance with my reasoning above, so that it is irrelevant whether or not the claimant’s husband was eligible for constant attendance allowance before he died because it was not payable to him and, by the time of his death, it was too late for the claimant to bring a posthumous appeal against the decision rejecting his claim for it. ANNEX Selected correspondence between the Department of Health and Social Security and the Treasury concerning the application of the Dispensing Instruments in relation to claims for war widow’s pension [2017] AACR 27 (SSD v CM) Annex 40 From Mr E James (DHSS) to Mr J W Cruikshank (Treasury) – 11 December 1972 I am writing about a number of cases which have arisen since 20 September 1971, in which war widows pension has been awarded according to the provisions of Article 25(3) of the Royal Warrant and the equivalent sections of the associated war pension instruments although in each case the husband was not in receipt of constant attendance allowance at the normal maximum rate or above when he died, nor would he have received it had he not been hospital at the time of death. These pensions were awarded on the grounds that the man’s attendance needs in respect of his accepted disablement were such that for at least the last 8 weeks of his life he had merited an award of CAA at or above the qualifying level. When the first of these cases arose it was considered in WP Division that the wording of the relevant article was sufficiently flexible to allow these awards to be made without the use of the Dispensing Warrant. (The article refers to the allowance being “payable”). To date all the awards have been in cases where CAA had been in payment but at less than the qualifying rate. Recently however a number of cases arose where we were asked to consider an award even though no CAA had been in payment at all, and in this context we sought the advice of our Legal Branch. Legal advice was to the effect that whether or not CAA had been in payment at the time of death, if there was no payment at the qualifying rate and an award at such a rate was not under consideration at the time of death then the provisions of Article 25(3) could not apply. It is apparent therefore, that if we wish to cover future cases we must seek your approval to use the Dispensing Warrant. For the present however there remain possibly 20 cases (on our Blackpool Office’s estimate) where an award has been made, regrettably without the full legal authority. We have a record of only 3 of these. May we, therefore, have your authority to pay these pensions as if they had been covered under the terms of Article 25(3) of the Royal Warrant from 20 September 1971 or from such later date as the award was made, no further awards being made in this type of case except as authorised under the Dispensing Warrant. It appears that Mr James wrote a second letter to Mr Cruikshank on 11 December 1972 in relation to an individual case and that Mr Cruikshank replied to both letters on 22 December 1972. Regrettably, it seems that, of Mr Cruikshank’s replies, only the letter concerning the individual case has been preserved. It is not reproduced here. From Mr E James (DHSS) to Mr J W Cruikshank (Treasury) – 15 February 1973 Following your letter of 22 December concerning the award of war widow’s pension in accordance with the provisions of Article 25(3) of the Royal Warrant in cases where the husband had not been receiving Constant Attendance Allowance at the full day rate or above at the time of death, although he appears to have merited such an award, we have reconsidered our practice in the light of your suggestions. These cases seem to fall into 3 categories:- 1. Where fresh medical evidence has come to light after the pensioner’s death, indicating that his attendance needs had merited an award at the qualifying rate. 2. Where the medical evidence upon which an award of CAA had been made at below the qualifying rate during the man’s lifetime (or upon which it had been decided not to award the allowance) is reconsidered after his death, and the Department’s doctors now advise [2017] AACR 27 (SSD v CM) Annex 41 that an award at the qualifying rate would have been appropriate (the case of Mrs Olga S… to which your letter of 9 January refers falls in this category). 3. Where medical evidence available to the Department at the time of death (e.g. in support of a claim for CAA) but which had not yet been taken into account for an award of the allowance has since been found to indicate that an award of CAA at the full day rate or above would have been appropriate. As regards the first two categories our legal advice is that as the law stands at the moment the only manner in which an award of war widow’s pension could be made under the Dispensing Warrant. In the third category of case however we would request your authority to award war widow’s pension as if the conditions of Article 25(3) had been satisfied in full on the grounds that a claim for the allowance (explicit or implied) was outstanding at the time of death and had been accepted posthumously. No liability for arrears of CAA would of course be implied in accepting the widow for pension. This would be an extension of the practice which we already follow with your authority in relation to the award of Temporary Allowance for Widows (TAW) under Article 33, by which TAW can be paid on the posthumous acceptance of a claim or implied claim for CAA made before the husband’s death (WPM vol VIII, CH 19 para 3923(3)). Provision for implied claims is essential, as a large proportion of CAA awards are made without a formal claim on the basis of evidence which comes to the notice of the Department, e.g. following a visit by one of our welfare officers. There is an earlier precedent for the posthumous acceptance of a claim made during the man’s lifetime for the purpose of awarding war widow’s pension, in the practice which was followed with your authority in relation to the “threshold condition” in Article 5 which was removed in October 1972. As to the length of time for which attendance needs at the qualifying level should have been present prior to the husband’s death to merit an award of war widow’s pension in this type of case the figure of 8 weeks was chosen as this is the duration over which attendance needs to be indicated for an award of CAA to be made to a living pensioner. There is no minimum duration for CAA to have been in payment to qualify the widow for pension under Article 25(3). To single out posthumous “claims” to CAA for a prolonged qualifying period would not seem equitable, and it would be impracticable to insist on firm medical evidence dating back very far before the man’s death. However, we are prepared to look into this point should you consider a longer qualifying period appropriate. As to the incidence of such cases, it is now estimated that about 15 awards have been made in accordance with Article 25(3) where CAA had not been in payment at the appropriate rate when the husband died. These were awards for which you gave your authority in your letter of 22 December. All but four of these awards relate to deaths which happened before October 1971, and are part of the backlog of cases (a total of 410 reaching back to 1916) taken on when the new provisions were introduced. The remaining 4 awards relate to deaths since the new provision came into effect, 16 months ago, out of a total of 186 awards under Article 25(3), of these 4 cases, 3 fall in category 1 described above (fresh evidence) and 1 in category 2 (departmental error). It would seem therefore that these cases are sufficiently exceptional for the use of the Dispensing Warrant to be appropriate rather than to seek an amendment to the terms of the Warrant. There are 2 further cases which we are holding over pending clarification of this issue. [2017] AACR 27 (SSD v CM) Annex 42 From Mr J W Cruikshank (Treasury) to Mr E James (DHSS) – 20 March 1973 Thank you for your letter of 15 February concerning the award of war widow’s pension in accordance with the provisions of Article 25(3) of the Royal Warrant in cases where the husband had not been receiving Constant Attendance Allowance at the full day rate or above at the time of death, although he appears to have merited such an award. I am still not entirely convinced that what you propose is in some respect not going beyond the original intention of the relaxation agreed by Ministers in 1971. There is some doubt in my mind too about the seeming acceptance in some cases of a new interpretation by a medical officer, after the death of a pensioner, of medical conditions found by a Board while the pensioner was alive. However I accept that it would be wrong for widows to suffer loss of pension in, for example, the “departmental error” type of case and I realise the difficulty of drawing a line through these cases. In the circumstances, whilst I cannot agree that you should have delegated authority to make such awards, I agree that you may seek our approval to use the Dispensing Warrant in future cases of the categories 1 and 2 set out in your letter. You may have authority in the third category of case to award war widow’s pension as if the conditions of Article 25(3) had been satisfied in full providing that the medical evidence available at the time of death in support of the claim for CAA (explicit or implicit) had not previously been taken into account for an award (or non-award) of the allowance at any time. Such cases where evidence had previously been taken into account would of course be for consideration under category 2. As to the duration of the CAA at the qualifying level, I appreciate that there is no minimum duration under Article 25(3) and also that it would be impracticable to insist on firm medical evidence dating very far before the man’s death. I am not so sure, however that the duration over which attendance needs have to be indicated for an award of CAA to be made to a living pensioner is the right corollary for an award of widow’s pension in these particular cases. I suggest that a period of 26 weeks would not be unreasonable or inappropriate. I am copying this letter to Heard in Finance Division. From Mr E James (DHSS) to Mr J W Cruikshank (Treasury) – 3 April 1973 Thank you for your letter of 20 March 1973. We will be pleased to follow the procedures you set out, including the test of 26 weeks duration of attendance needs at the qualifying level prior to the date of death which you suggest at the end of your letter. From Mr T J Burr (Treasury) to Mr D A Bury (DHSS) – 6 January 1976 EXTRA-STATUTORY AUTHORITY FOR PAYMENT OF NATIONAL INSURANCE BENEFITS [2017] AACR 27 (SSD v CM) Annex 43 I have outstanding four letters from yourself [concerned with National Insurance contributory pensions for widows]. I also have similar letters from Miss Power [about a case concerning incorrect advice about eligibility for invalidity benefit after retirement age] and from Mr Todd (in your A division) dated 25 November (addressed to Mr Robins whom I have replaced) about the case of Mrs C… (award of war widow’s pension based on Constant Attendance Allowance the qualifying rate being merited in respect of a period of at least 26 weeks ending with the husband’s death). 2. In my short experience here, therefore, it seems that we are getting one of these letters every week, on average. The amounts of money involved seem to be trivial and in some cases non-existent; and rarely, if ever, do we seem to refuse our authority. These considerations have prompted the thought here that we are devoting a disproportionate amount of time to these cases (and causing you unnecessary work and delay arising from the need to write to us frequently about them), and should make an effort to get a proper regime of delegated authority established which will reduce to a minimum the need for future correspondence of this kind. 3. You do, of course, already have a £500 delegation for cases of official misdirection; but this limit has become out of date, and any higher limit which we might agree will soon also need revision. I suggest therefore, that we adopt a different approach, and give unlimited delegated authority subject to the following constraints:- a. as with delegated authorities generally, cases of a novel or contentious nature are excluded; b. the expenditure consequences of the case, whether direct or indirect, can be accommodated within existing PESC and Estimates allocations and within any other control ceiling which may have been agreed with the Treasury (eg cash limits); c. no policy changes or modifications are involved, in the sense that the case either follows an existing precedent or does not establish any significant new precedent; d. expenditure control arrangements with the CSD are in no way affected. 4. In addition, of course, we would be ready to consider any other cases where you felt that there was a special need for Treasury guidance. Such cases might include, for example, any in which, although criterion b. above was met, an exceptionally large amount of money was involved. (This might render the case ‘novel’ anyway). But we are prepared to leave this to your judgement. 5. We are also prepared to extend delegation in these terms to awards of war widow’s pension under the provisions of the Dispensing Warrant, for the categories agreed by Cruikshank (Treasury) in his reply of 20 March 1973 to James’ (DHSS) letter of 15 February 1973. Criterion c. above, however, means, for example, that we would need to be consulted over any widening of the categories or any proposal to shorten the 26 week qualifying period of entitlement to Constant Attendance Allowance. 6. As regards considerations of accounting and financial propriety, you may need to consider whether the kind of payments in question can always be correctly classified as ‘extra-statutory’. This classification implies that the payments are within the broad intention of the statute (see M42 [2017] AACR 27 (SSD v CM) Annex 44 of ‘Government Accounting’). Your greater familiarity with the statutes in question will enable you to judge better than I whether this criterion is met in any particular case. Where it is not met the Appropriation Account should be noted in respect of ex gratia rather than extra statutory payments. 7. Both ex gratia and extra statutory payments rest on the authority of the annual Appropriation Act, which should not be used as the sole basis for continuing programmes of expenditure. If therefore it becomes clear that a particular category of payment is of a frequently recurring nature you should consult with us as to whether amending legislation or regulations (or an amendment to the Royal Warrant in the case of war widows’ pensions) is required to properly legitimise the service in question. 8. Finally, I can give you the authority which you seek in the cases listed in my first paragraph, and would be grateful if Miss Power and Mr Todd would take their copies of this letter as constituting Treasury approval to the proposals in their letters mentioned in that paragraph. Perhaps you and they would let me know if you have comments on this letter so that we can notify the Exchequer and Audit Department of agreed delegations – hopefully in time to avoid Treasury consideration of any further cases falling within the scope of my suggested delegations. If you are aware of any other parts of your Department (on the social security side) who are likely to originate similar requests for extra statutory authority, perhaps you would be good enough to see that they are aware of this letter. 9. I am also copying this letter to Messrs Culpin, Burton and Miss Mann (TOA) here.
DP v Secretary of State for Defence (WP): [2017] UKUT 434 (AAC)
DP v Secretary of State for Defence (WP) [2017] UKUT 434 (AAC) CAF/2789/2016 1 IN THE UPPER TRIBUNAL Appeal No. CAF/2789/2016 ADMINISTRATIVE APPEALS CHAMBER Before Judge S M Lane DECISION The appeal is dismissed. The decision of the First-tier Tribunal (‘F-tT) heard on 3 June 2016 under reference ASS/00035/2016 did not involve the making of any, or any material, error on a point of law. The decision reducing the assessment of disablement from 40% to 30% in respect of accepted conditions (‘AC’) 1, 2 and 3 is accordingly confirmed. AC1 and 3 (the back conditions) are assessed at 20% and AC2 (the knee conditions) is assessed at the lower end of 6 – 14% REASONS FOR DECISION 1 I apologise for the delay in issuing this decision, which follows an oral hearing on 13 July 2017. Mr Glyn Tucker, Senior Pensions and compensation Officer of the Royal British Legion, represented the appellant. The Secretary of State was represented by Mr Jonathan Lewis, of counsel. The appellant lives in Australia and did not attend the hearing. 2 This is one of a number of recent cases in which the F-tT decided, on a review of an assessment of disablement under the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pension Order 2006 (‘SPO 2006’), to revise the assessment to the claimant’s detriment by reducing the existing percentage of disablement. In doing so, the F-tT failed to refer to Article 44(4) of that Order. This is the ground upon which the appellant was granted permission to appeal by a judge of the First-tier. 3 Article 44(4) imposes important limitations on the powers of the Secretary of State (or tribunal on appeal) when exercising its power to revise an assessment to the detriment of a claimant. In this case, it decided to reduce the percentage of assessment from 40% to 30%. 4 Article 44 provides, as relevant to this decision, as follows: Review of decisions, assessments and awards 44(4) Subject to the provisions of paragraph (9), 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— DP v Secretary of State for Defence (WP) [2017] UKUT 434 (AAC) CAF/2789/2016 2 (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; or (b) …; or (c) there has been a change in the degree of disablement due to service since the assessment was made. 5 The purpose of these conditions is to ‘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’. It provides protection for claimants and it is incumbent on Firsttier Tribunals to make it clear which condition in article 44(4) is satisfied, and if so, why - JM v Secretary of State for Defence (WP) [2014] UKUT 358 (AAC) at [14], Upper Tribunal Judge Rowland. This is not to say that a failure to refer to the article explicitly is inevitably fatal. That would amount to the triumph of form over substance. It may be possible to infer from the decision that a condition was fulfilled, but it is dangerously easy to go astray. 6 The conditions that need to be explored for the purposes of this decision are in Article 44(4)(a) - ignorance of, or mistake as to material fact. These can be very difficult to identify and generally require close analysis. 7 If a tribunal is relying on ignorance of material fact in order to revise an assessment, it needs to work out the fact of which the Secretary of State was said to be ignorant. The F-tT needs to identify the evidence that was before the Secretary of State and what it contained. If, for example, at the date of decision the Secretary of State actually possessed all of the medical reports said to be relevant, it would be difficult to find that he was ignorant of their contents. He may have underestimated or overestimated the significance of the evidence, but that does not mean he was ignorant of facts. Equally, he may simply have made a controversial judgement call in a difficult situation. That does not display ignorance of fact, either. 8 Where a tribunal seeks to rely on a mistake of fact, it must take care to distinguish between fact and opinion. An opinion is a belief which may, or may not, be based on rational analysis or objective facts. Where it is based on matters that are objectively provable, so much the better. Sometimes, however, the basis of an opinion will not be easy to discern. In this case, as will be seen, a medical report indicated that the appellant would not be able to walk more than 50 metres, but it was difficult to see how the GP arrived at that figure. 9 In order to classify what otherwise appears to be a mere opinion as a statement of fact, it would be necessary to find that the person putting the opinion forward was impliedly stating that he had reasonable grounds for believing his opinion to be correct. So, if a tribunal is dealing with an expert opinion, or the opinion of someone who claims to have particular knowledge of a matter in issue, that person may be making an implied statement that he has reason grounds on which to base that opinion. An expert opinion from, say, Dr A, which is devoid of clinical findings to support his opinion, or sparse on how he arrived at his opinion, may be little better than an assertion. Even though Dr A is a professional, his opinion may be rejected where DP v Secretary of State for Defence (WP) [2017] UKUT 434 (AAC) CAF/2789/2016 3 another doctor, Dr B, has set out how and why he has arrived at a different conclusion for the patient. 10There are some matters, such as judging distances, that are usually treated as no more than statements of opinion. This is because distance is notoriously difficult for laymen to judge and it may well be that by saying ‘I can only walk x metres’ the individual is just saying ‘I can’t walk very far’. The tribunal may, however, be able to give ‘not very far’ some content by asking the right questions. 11More complex facts may also provide a basis for finding a mistake under article 44. An adverse credibility finding that ‘the witness’s evidence was not reliable’ or ‘the witness was not credible’ is generally based on instances in the evidence where the tribunal finds that, for example, the witness’s memory was faulty or his evidence contains inconsistencies that lead it to find that the witness is not telling the truth. Flawed memory and/or inconsistency may taint the witness’s evidence on one or more issues. In extreme cases, the witness’s credibility may be entirely undermined, but that is unusual. In each instance, the tribunal has to explain why the evidence was rejected. In so doing, it may need to find that, whilst x did not happen, y did happen. Failure to refer to the Article 44 12 Given the protective nature of the provision and its complexity, it is plainly wise for a First-tier Tribunal to refer expressly to Article 44(4) when it wishes to reduce an assessment. That way, it can keep the conditions clear in its Statement of Reasons and make sure that it has dealt with them fully. 13 An F-tT undoubtedly had the power to increase, decrease or maintain the assessment subject to establishing that one or more of the conditions in Article 44 were satisfied. 14 In this appeal, the Records of Proceedings of all three members show that the F-tT informed the appellant and his previous representative that the assessment could increase, decrease or stay the same. It properly offered the them the opportunity (which they declined) to take a break to discuss whether they wished to proceed. 15 It was not, however, clear from this ‘warning’ whether the F-tT had anything other than natural justice or fairness in mind. The appellant has rightly not argued that there was any procedural fairness in the proceedings. But it did not show, on the face of it, that the F-tT had Article 44(4) in mind, and this is the problem. 16 So can it be inferred that the F-tT had Article 44(4) in mind? Alternatively, if it cannot be inferred, did the F-tT nevertheless make all the findings necessary for Article 44(4) and come to the only conclusion it could have come to on the evidence before it? Brief background of the appeal DP v Secretary of State for Defence (WP) [2017] UKUT 434 (AAC) CAF/2789/2016 4 17 The appellant was a private in the Army from 1986 – 89, serving in the ACC (Army Catering Corp) as a chef. He would have had to participate in fitness training. He was discharged from the Army in 1989 as medically unfit for any service. He made a claim for a war pension in or around 1990 on the basis of one injury, thoraco-lumbar rotational scoliosis (‘AC1’). The injury was assessed at 6 – 14%. In 1999, the appellant requested a review. The Secretary of State accepted that a second condition of ‘left knee syndrome’ (AC2). This did not result in any increase in the assessment. 6 – 14% for given in composite. 18 In 2009 the appellant requested a review. His lower back was painful. He blamed this on his period of service 20 years earlier. His back surgeon, Dr Parkinson, did not consider AC1 (rotational scoliosis) to have anything to do with his lower back pain (106, 22 November 2014). Medical reports carried out for the Secretary of State in Australia, and for the appellant by various specialists indicate degenerative changes. 18 In 2010 the assessment was increased to 15 – 19% for the composite of both conditions. He blamed this condition, as well as osteoarthritis in other parts of his body, to his 3 years in service 24 years earlier. In November 2013, the appellant had anterior lumbar interbody fusion surgery at L4/5 and L5/S1. 19 The assessment of 2010 was upheld by a tribunal which heard the case on 17/3/15. The percentage was rounded up to 20% (p107), effective from 13/06/13. 20 On 18/9/15, another tribunal accepted a third injury, severe lower back injury (p108). From the evidence in the present bundle, it is not possible to see service basis of that condition. There is no Statement of Reasons for the decision and the Secretary of State did not appeal the decision. 21 On 30/9/15, the Secretary of State reassessed all 3 injuries at 40% from 13/06/13. The two back injuries (AC1 and AC3) were combined for assessment purposes. The appellant appealed because he considered that the assessment did not adequately reflect his lost career, employment prospects, and lost earnings, nor his constant pain, suffering and disability. 22 There was a large body of medical evidence. It indicated very little by way of clinical signs to account for the levels of disablement and pain asserted by the appellant. The thoraco-lumbar scoliosis was generally considered by practitioners to be of minimal, or no significance. Indeed, until 2013 the appellant continued his career as an HGV driver/instructor, driving heavy vehicles with manual gears and clutch despite complaining of severe upper back and neck, and knee pain. He was reported to have no problem walking at that time and to be exercising regularly in a medical report from Western Australia. 23 The appellant had also begun to complain of pain in both of his knees. However, his orthopaedic surgeon in Australia, Mr Baddeley, reported that the appellant’s right knee was completely normal and his left was normal apart from an old slightly attenuated ACL injury which on clinical examination resulted in no instability. His conclusions were based on physical examination and MRIs carried out at the time. DP v Secretary of State for Defence (WP) [2017] UKUT 434 (AAC) CAF/2789/2016 5 What the Secretary of State argued 24 Mr Lewis argued that the Secretary of State was either ignorant of material facts or made a mistake of fact in reaching his conclusion on the level of assessment. Ignorance of material fact 25 I do not consider that the Secretary of State can be said to be ignorant of material facts. He appears to have had all of the medical reports in the bundle before him at the material decision-making times and the medical practitioner acting on the Secretary of State’s behalf referred to them in making his decision. The medical advisers who reviewed the reports did not have the advantage of the appellant’s oral evidence and, unsurprisingly, did not consider the reports in the same detail as the F-tT, but I cannot see any ignorance of material fact. 26 It is notable that, by the time that the third injury was accepted by the F-tT, the appellant was asserting that the training he undertook included far more than the Secretary of State had accepted, including frequent parachute jumps and two jumps from walls of 12 feet and 15 metres to hard surfaces. Yet the only jump documented in the medical records took place some 2 ½ years after his discharge from service, from a 6 foot wall (p23 – 25). But these claims were made in documents available to the Secretary of State and his medical advisers, so ignorance of them is out of the question. 27 It might be said that the Secretary of State was ignorant of the fact that the appellant was not being candid, or was not reporting his disability reliably. But those were inferences that could have been made from evidence openly available to the Secretary of State. Ignorance of fact Mistake of material fact 28 Mr Lewis referred to the exposition of evidence and its analysis by the F-tT, which led them to make a number of findings of fact on the basis of which (i) it found the appellant an unreliable witness and (ii) considered it necessary to reduce the award. 29 The F-tT’s analysis of the evidence was thorough. It made findings of fact on troubling inconsistencies in the appellant’s evidence, amongst them inconsistencies between what it observed during the hearing and the appellant’s claims. These properly put to the appellant, who was unable to answer them satisfactorily. provide an y or any satisfactory answer. They are in paragraphs 14 – 19 of the Statement of Reasons, which cover three closely typed pages. DP v Secretary of State for Defence (WP) [2017] UKUT 434 (AAC) CAF/2789/2016 6 30 On the evidence before it, the F-tT was certainly entitled to reject the appellant’s claim that his disability had worsened. But this still does not answer the important question of whether the F-tT had referred inferentially to Article 14 in their fact finding and reasoning. 31 I am satisfied by the closeness of the analysis of the evidence that the F-tT must have had Article 44(4) in mind. There would have been no reason to go to the trouble the F-tT went to in dissecting the evidence in the way it did, had it not been considering its power under Article 44(4). 32 A War Pensions tribunal is, of course, also an expert or, at the very least a highly specialist, tribunal. Its decisions should be respected unless ‘… it is quite clear that they have misdirected themselves in law.’ – AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49 at [30] per Baroness Hale of Richmond. 33 I consider it unlikely that a F-tT that dealt with this complex evidence so skilfully and took such procedural care, would overlook such a fundamental Article of the SPO. 34 It follows that I accept that it is implicit in the F-tT’s decision that the Secretary of State made a mistake of fact in reaching the assessment that he did. I agree with Mr Lewis that it is possible to work out how the F-tT reached its conclusions, which cumulatively imply a mistake of fact. 35 Had I not come to this conclusion, I would have found that despite its error, the FtT came to the only conclusion that it could have come to on the evidence. 36 I do not accept that F-tTs should necessarily draw back from exercising their power under Article 44(4) by remitting the matter to the Secretary of State. Certainly in cases where the appellant attends an oral hearing, the specialist F-tT is uniquely placed to explore the evidence in a way that the Secretary of State simply cannot. [Signed on original] S M Lane Judge of the Upper Tribunal [Date] 31 October 2017
HD v Secretary of State for Defence (WP): [2017] UKUT 376 (AAC)
HD v SS(D) (WP) [2017] UKUT 376 (AAC) 2 CAF/1819/2016 DECISION OF THE UPPER TRIBUNAL (ADMINISTRATIVE APPEALS CHAMBER) Decision and Hearing 1. This appeal by the appellant succeeds. Permission to appeal having been given (in respect of various grounds) by a judge of the First-tier Tribunal on 3 rd June 2016 and (on other grounds) by me on 17th May 2017 and in this decision, and in accordance with the provisions of section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007 I set aside the decision of the First-tier Tribunal (WPAFC Chamber) sitting at Fox Court (London) on 24th November 2015 made under reference SD/00133/2015. I substitute my own decision. This is to the effect that appellant did not have to make a claim for (restored) widows pension following the death of her second husband. I refer the matter to the Secretary of State to proceed with the consideration of the matter on this basis. 2. I held an oral hearing of this appeal at Field House (London) on 10th July 2017. Neither the appellant nor her appointee daughter attended in person but they were represented by Glyn Tucker of the Royal British Legion. The Secretary of State was represented by Saul Margo of counsel. I am grateful to them for their assistance in both written and oral argument. The Legal Framework 3. The legal position is governed by articles of The Naval, Military and Air Forces Etc (Disablement and Death) Service Pensions Order 2006 (“the SPO” or “the Order”), which, so far as is relevant, provides as follows (references are to article numbers): 23(1) The surviving spouse or surviving civil partner of a member of the armed forces whose death is due to service may be awarded a pension [at the appropriate rate as specified in Schedule 2] … 33(1) Subject to the following provisions of this article, any pension or allowance awarded under this Part of this Order or under Part II of a 1919 to 1921 instrument to a person other than a parent shall cease if that person marries or lives with another person as the spouse of that person or forms a civil partnership or lives with another person as the civil partner of that person. (2) Where- (a) in accordance with paragraph (1) an award ceased because the person had another person living with her or, as the case may be, him as a spouse or formed a civil partnership or had another person living with her, or as the case may be, him as a civil partner; and HD v SS(D) (WP) [2017] UKUT 376 (AAC) 3 (b) the person claims an award under this part in respect of a period which begins after the end of that relationship The claim shall be determined as though the relationship had never ended. (3) … (4) In determining whether a pension is payable to a person as a surviving spouse in respect of any period beginning on or after 19th July 1995, no account may be taken of the fact that the widow has married another if, before the beginning of that period, the marriage has been terminated or the parties have been judicially separated. … (7) For the purposes of paragraph (4)- (a) The reference to the termination of a marriage is to the termination of the marriage by death, dissolution or annulment … 34(1) Subject to paragraph (4) and article 35, it shall be a condition precedent to the making of any award of any pension, allowance or supplement mentioned in paragraph (2) (including any such award which follows an earlier award or which follows a period which, had there been an award for that period, would have ended in accordance with article 33(1)) 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 either to an appropriate office of the Secretary of State or to the office of an authorised agent. (2) The pensions, allowances and supplement to which paragraph (1) applies are- … (k) a surviving spouse’s or surviving civil partner’s pension payable under article 23; 35(1) A claim for the pensions, allowances and supplements mentioned in the following paragraphs of this article shall not be required if the conditions set out in the relevant paragraphs are satisfied. (2) … HD v SS(D) (WP) [2017] UKUT 376 (AAC) 4 (3) A claim for a surviving spouse’s or surviving civil partner’s pension under article 23 is not required if- (a) the member of the armed forces by reference to whose death the pension would be payable died whilst serving in the armed forces; and (b) copies of that member’s medical and service records are delivered to the Veterans Agency. … 4. Paragraph 62 of Schedule 6 to the Order defines “Veterans Agency” as “an office designated by the Secretary of State for the purpose of receiving and determining applications for a pension, allowance or supplement”. 5. Article 46 of the Order provides that Schedule 3 has effect with respect to commencement dates of awards under the Order. Paragraph 1 of Schedule 3 provides that, subject to other provisions of the Schedule, an award shall have effect from the date (not earlier that the latest of) the date of death or the date of claim. 6. So far as is relevant paragraph 5 of Schedule 3 provides as follows: 5. Where a claimant satisfies the Secretary of State that- (a) he would have made a claim … on a date (“the earlier date”) earlier than that (“the actual date”) on which he actually did so but for the fact that he was incapable of doing so or instructing someone to act on his behalf by reason of illness or disability; and (b) that illness or disability continued to be the cause of the delay up to the moment the claim or application was made any reference in this Schedule to the date of claim … shall be treated as a reference to the later of- (i) the earlier date; and (ii) the date three years before the actual date. 7. Subject to exceptions which are not relevant in the present case, the relevant parts of paragraph 10 of Schedule 3 to the Order provide as follows: 10. … where a claimant satisfies the Secretary of State that- (a) he would have made a claim … on an earlier date than he actually did but for an act or omission of the Secretary of State or any officer of his carrying out functions in connection with war pensions … which HD v SS(D) (WP) [2017] UKUT 376 (AAC) 5 wrongly caused him to delay the claim or application and the act or omission was the dominant cause of the delay; and (b) that act or omission continued to be the dominant cause of the delay up to the moment the claim or application was made any reference in this Schedule to the date of claim … shall be treated as a reference to the earlier date referred to in this paragraph. 8. On an appeal the reference in paragraph 5 and the first reference in paragraph 10 to the Secretary of State are to be read as references to the tribunal. Background and Procedure 9. The appellant is a woman who was born on 14th September 1920. On 5th September 1942 she married for the first time. Sadly, her husband was killed on active service on 6 th December 1942. She was awarded a war widow’s pension. She remarried on 1st December 1945 and, in accordance with the law and rules prevailing at the time, her entitlement to war widow’s pension ceased. Her second husband died on 30th November 2000. She did not at the time make any relevant claim for war widow’s pension or similar payment. 10. With effect from 19th July 1995 the legislation changed so that (using the language applicable to the present case) if a claimant’s first husband had died before 31st March 1973 the pension could be retained on remarriage on or after 6th April 2005. Where the pension had been surrendered prior to 6th April 2005 it could be restored at the end of the second marriage. 11. The appellant and her daughter (who is her appointee) became aware of the then current position in 2014 and made enquiries of Veterans UK in November 2014. A claim was made on 15th November 2014. On 23rd February 2015 the Secretary of State awarded the appellant “Restored War Widow’s Pension” from 15th November 2014 – the date of the new “claim”. The amount of pension and age allowance awarded as at the date of claim was £266.29 weekly. As this appeal is about the correct commencement date, clearly there is a significant amount of money at stake. 12. On 1st May 2015 the appellant, who was by then living in Australia, appealed to the First-tier Tribunal against the decision of the Secretary of State in relation to the commencement date. The First-tier Tribunal considered the matter in London on 24th November 2015 in the absence of the appellant or any representative. The Secretary of State was represented by an official from the Veterans Agency. The tribunal confirmed the decision of the Secretary of State, although it seems that its written reasons were not issued until 28th April 2016. The appellant’s daughter applied for permission to appeal to the Upper Tribunal on two grounds. The first related to the matters in paragraph 10 of Schedule 3 to the Order (act or omission of Secretary of State etc). The second related to the claimant’s medical condition. On 3rd June 2016 Upper Tribunal Judge Wikeley, sitting as the Chamber President (Temporary) of the HD v SS(D) (WP) [2017] UKUT 376 (AAC) 6 First-tier Tribunal, gave the appellant permission to appeal to the Upper Tribunal. In relation to the first ground he commented “I am not persuaded there is an arguable error of law”. In relation to the second ground he commented that “it may be questionable whether the Tribunal either made sufficient findings of fact or gave adequate reasons”. His permission was given “principally on the second point, but not limited to that”. On 17th May 2017 I directed that the appellant could raise any point of law on which she had hitherto relied. However, she had not received any legal advice before the First-tier Tribunal hearing and, to the extent necessary, I now give permission to appeal on any relevant point of law. I am satisfied that the Secretary of State has had due warning of, and an opportunity to consider, all the points that were raised. I also directed that there be an oral hearing of the substantive appeal, and that took place on 11th July 2017. 13. The Secretary of State opposes the appeal and supports the decision of the Firsttier Tribunal. Mr Tucker put forward three grounds of appeal. Incapacity to Claim 14. The relevant medical evidence is that relating to the appellant during the period between the death of her second husband (30th November 2000) and the date taken by the Secretary of State as the date of claim (15th November 2014). Paragraph 5 of Schedule 3 to the Order effectively allows backdating for three years prior to the date of claim if throughout the period the claimant was incapable of claiming by reason of illness or disability. There is a certain amount of medical evidence on the file but attempts to obtain full GP records were unsuccessful, partly because of the appellant’s move from the United Kingdom to Australia. 15. On 10th November 2005 a General Hospital in North Shields (UK) reported that the appellant had had a right partial anterior circulation stroke in April 2005 and diagnoses included ischaemic heart disease, hypertension, previous TIAs (no dates given), hiatus hernia, diverticular disease, hysterectomy and paroxysmal atrial fibrillation. A long list of medication was supplied. Problems identified in the stroke review clinic on that day included tingling pain in the right hand, reduced sensation in the left arm, and poor eyesight due to cataracts. The staff nurse commented: “She is independent with all activities of daily living. She does not however feel she has made a full recovery from the stroke. She still has lack of sensation in her left arm and leg”. 16. An occupational therapy home visit report, written on 29th July 2008 in respect of a visit on 25th July reported falls inside and outside and the need to use a range of mobility aids but no problems with communication and no psychological problems in respect of eg orientation, memory, mood or mental state – although the value of this report should not be overstated as it does not report the opinion of a psychologist or psychiatrist or specialist mental health worker. HD v SS(D) (WP) [2017] UKUT 376 (AAC) 7 17. There was a hospital admission on 17th January 2012 with persistent bleeding, and it was noted that the appellant was “usually self caring” and could make all her needs known with no problem communicating. 18. On 29th May 2014 the appellant saw a consultant physician (also in the UK) who reported that she understood why it was necessary to carry out certain investigations and provided verbal consent. 19. A letter of 27th February 2015 from what appears to be a GP practice in Australia referred to additional problems with retinal haemorrhages, chronic kidney disease and lumbar spinal stenosis as well as “significant impairment” shown on MMSE (mini mental state examination). 20. On 11th September 2015 Dr P Kearney, the medical adviser to the Secretary of State concluded that there was no evidence that the appellant had been prevented from 2000 from making a claim through illness. I observe that this was on the basis of the written evidence rather than any physical examination or discussion with those who had attended the appellant. 21. The appellant’s daughter (who is her appointee) made written representations to the effect that the appellant had been suffering from long term dementia and Alzheimer’s disease and would always tell the relevant professionals that she was fit and well and could look after herself even while being quite aggressive in her verbal response to family members. She would not remember going for medical assessments and “defiantly deny” that she had been out that day. It was only while seeing David Cameron on the TV in 2014 talking about war widows’ pensions that she suddenly said “I used to get one of those”, having not been capable of remembering that until that particular prompt. 22. The First-tier Tribunal found as follows (references are to paragraph numbers of its written decision and reasons): 3(e) … The tribunal did not identify any additional evidence in the available evidence to show that the appellant was mentally incapable of understanding what her entitlement might be … 5. Although the response contains details of ill-health, the nature of that ill health did not disable this appellant from telling her family that she once had a war pension during 2014 when widows war pensions were referred to [on TV] … 23. Mr Tucker made the same point as made by Judge Wikeley (when giving permission to appeal) about the inadequacy of the tribunal’s reasoning on this matter. Mr Margo pointed the lack of medical evidence to support a finding that could bring the appellant within paragraph 5 of Schedule 3 to the Order. However, he overstated his case by suggesting that the First-tier Tribunal had dealt with this matter adequately and that the appointee daughter’s evidence could never be sufficient to support a HD v SS(D) (WP) [2017] UKUT 376 (AAC) 8 contrary finding. I agree both that the First-tier Tribunal’s reasoning on this point was inadequate, and that the evidence before the First-tier Tribunal could not bring the claimant within paragraph 5. It is possible that, with the resources of the Royal British Legion (which were not utilised for the First-tier Tribunal hearing) further relevant medical evidence could be obtained, and if this were the only matter in issue, I would have referred the matter back to the First-tier Tribunal for a fresh hearing and decision. Act or Omission of Secretary of State 25. Paragraph 5 of Schedule 3 to the Order relates to the situation where, to put it crudely, the Secretary of State can be blamed for the appellant’s failure to make the claim earlier than it was made. There was evidence before the tribunal that when the 1995 legislation was going through parliament the Secretary of State took steps to notify 78 organisations and publications of the changes, including very large charities and advice agencies and many relevant ex-Services organisations (pages 11 to 16 of the Upper Tribunal file). At that time it was estimated that 16,500 war widows would benefit, and that the War Pensions Agency had already received 8620 enquiries. 26. The First-tier Tribunal stated: 3(e) to (f) … [The appellant] did not know about her entitlement despite reasonable efforts by the Secretary of State to widely disseminate knowledge of this development in the law. On the evidence … the tribunal concluded that reasonable steps were taken by the Secretary of State to disseminate knowledge of entitlement to war widows pension. It would have solved the current problem were the appellant to have been written to directly but it is highly likely that the record of a young war widow of 1942, who ceased to have a war widows pension in 1945, would have been lost in the mist of time that had passed by the time of the change of the law in 1995. 4. Unfortunately the appellant did not know about her entitlement in 2000 on the death of her second husband. This is despite reasonable and documented efforts by the Secretary of State to disseminate this information. She did not know about her entitlement until 2014. 27. Mr Tucker argued that potential beneficiaries should have been notified directly of the possible restoration of pension. An obvious initial enquiry that could have been made, but was not, was whether there was an extant record of the cessation of the claimants’ pension. The First-tier Tribunal was in error in not considering this. There was a small group of those whose pensions had been removed and the Secretary of State could have written to them all. 28. In written submissions to the Upper Tribunal, under the guise of legal argument, the Secretary of State tried to smuggle in further evidence on this point. I disregard such evidence, but note the argument that the fact that the appellant and her daughter were not aware of the publicity given to the change in the legislation “does not negate HD v SS(D) (WP) [2017] UKUT 376 (AAC) 9 that more than reasonable steps were taken by the Secretary of State to make widows aware of the revision to the Scheme” (written observations of 2nd September 2016). 29. I do not know whether the Secretary of State or the various government agencies responsible for these matters did maintain records of war widows whose pensions had been withdrawn, although they may well have done, but to expect them to have kept track of their whereabouts and addresses or contact details until 1995 (a period of half a century for this appellant) would be expecting too much. 30. Reference was made to the decision of Mr Justice Newman in the Administrative Court in Secretary of State for Defence v William Reid [2004] EWHC 1271 (Admin). Although that decision deals with the same provisions as this one, it does not help me to reach a decision. In that decision Mr Justice Newman observed that it was open to the Secretary of State to call evidence (before the Pensions Appeal Tribunal, which has now been replaced by the First-tier Tribunal) of the reasonable steps that had been taken to inform personnel abroad, but he had not done so. Accordingly the judge upheld the decision of the tribunal to backdate an award in that case. In the present case the Secretary of State did present such evidence (to the First-tier Tribunal) and that tribunal was entitled to accept the evidence and find that there was no relevant act or omission. The Need for a Claim 31. The issue here is whether the circumstances come within the provisions of article 35(3) of the Order. This is set out above and applies when the death occurred while serving in the armed forces (which is not in doubt here) and copies of the deceased’s medical and service records are delivered to the Veterans Agency (as defined above). 32. The Secretary of State argued that article 35(3) should not be interpreted as applying where the restoration of war widows pension is sought. This is because article 33(2)(b) uses the words “that person claims an award” in relation to such restoration, followed by the words “the claim shall be determined” (my underlining). Article 33 does not state that there are circumstances in which there is no need to make a claim, and does not refer to article 35(3). Generally the Order makes express provision that claims or applications need to be made in all circumstances other than those set out in article 35(3) and imposes strict time limits. In article 35(3) cases the Secretary of State is already in possession of all the necessary information and therefore there is no need for a claim. In paragraphs 7 and 8 of his written observations of 2nd March 2017 Mr Margo expressed it in this way: “7. … it would make no practical or policy sense if this exception to the need to make a claim applied to cases where a surviving spouse is seeking the restoration of a pension on the grounds that a subsequent spouse had died … The Secretary of State would need to know that the death had taken place. In the vast majority of cases there would be no way that the Secretary of State could know such a thing without being informed as the result of a claim being HD v SS(D) (WP) [2017] UKUT 376 (AAC) 10 made. It follows that a purposive reading of [the Order] favours the Secretary of State’s interpretation. 8. … if a person in [the claimant]’s position did not need to make a claim, the Secretary of State could be liable for making up missed pension payments going back many years in circumstances where there was no possible way for the Secretary of State to have known that an entitlement to a (restored) pension had arisen. This would be contrary to the effective administration of the War Pensions Scheme.” 33. I am not sure that this last point makes a great deal of sense. The amount of pension the Secretary of State would liable to pay would be the same whether a claim were made on the day after the death of the second husband or whether a claim was made or notification given many years later, and if the records required by article 35(3)(b) have been provided there would be very little effect on administration. 34. Mr Tucker pointed to an amendment to the Order made with effect from 6th April 2015 (by SI 2015 No 208). Article 33(2)(b) now reads: 33(2)(b) that person applies to restore the award in respect of a period which begins after the end of the relationship that led to the cessation of the award. He suggested that the use of the word “claim” in the previous version of 33(2)(b) meant no more than the phrase “applies to restore the award” in the new version. It is article 34(1) that requires a formal claim, and that is expressly subject to article 35. This is an explicit exception to the general approach to claims and time limits taken in the Order. This exception indicates that it was intended to place a greater onus on the war pensions scheme in such cases. 35. I agree with Mr Tucker that the use of the word “claim” (which is not defined in article 2 of or Schedule to the Order) in the unamended version of 33(2)(b) is effectively a shorthand term for applying or notifying or requesting, or supplying information. It does not carry the same import as the requirement for a formal claim under article 34. 36. I note that article 23 refers to a deceased “whose death was due to service”. The death does not have to have taken place whilst serving. The general rule is that a claim must be made under article 34. However, there is an exception in article 35(3) to the general rule in article 34 if the deceased “died whilst serving”. This must be because the Secretary of State cannot be expected to know what happens to a former member but can be expected to know what has happened to a serving member. Subject to the satisfaction of the condition in article 35(3)(b) a formal claim by the present appellant would not be required and she would be entitled to a restored pension as and when she satisfied the other conditions. Presumably this was on the death of her second husband. HD v SS(D) (WP) [2017] UKUT 376 (AAC) 11 37. Mr Margo argued that there is no evidence that article 35(3)(b) was satisfied in 1942 and it has not been suggested that it was satisfied at any subsequent stage. I find this suggestion strange. It is not disputed that a widows pension was awarded to the appellant in 1942 or that her first husband’s death was due to and whilst in service. The Secretary of State’s predecessor must have been satisfied at the time, on medical evidence, that he had died. The fact of the award at the time is in itself evidence in the present case. Accordingly it can be taken that whoever was designated to do so at the time received the relevant medical and service records, unless there is any evidence to the contrary (which, in this case, there is not). 38. On this basis I allow the appeal and make the decision and order indicated above. H. Levenson Judge of the Upper Tribunal 14 th September 2017
SA v Secretary of State for Defence (AFCS): [2017] UKUT 374 (AAC)
SA v Secretary of State for Defence (AFCS) [2017] UKUT 374 (AAC) CAF/3487/2016 1 IN THE UPPER TRIBUNAL Case No. CAF/3487/2016 ADMINISTRATIVE APPEALS CHAMBER Before Upper Tribunal Judge Rowland Decision: The claimant’s appeal is allowed. The decision of the First-tier Tribunal dated 13 July 2016 is set aside and the case is remitted to the First-tier Tribunal to be re-decided in accordance with my reasoning below. REASONS FOR DECISION 1. This is an appeal, brought with permission granted by Upper Tribunal Judge Turnbull, against a decision of the First-tier Tribunal dated 13 July 2016, whereby it dismissed the claimant’s appeal from a decision of the Secretary of State dated 17 February 2015 not to accept that there had been worsening of an injury to the claimant’s right hand for the purposes of a claim under the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011 (SI 2011/517). The Secretary of State supports the appeal. 2. The claimant, a private in the Royal Logistics Corps, suffered injuries to his right hand in a road traffic accident on 26 January 2009, when returning to barracks from leave. He made a claim under the forerunner of 2011 Order but it was decided that the injury was not caused by service and his claim was rejected on that ground on 2 December 2009 and that decision was maintained on reconsideration on 28 January 2010. He did not appeal. 3. On 17 February 2015, the Secretary of State received a letter from the claimant, who had been discharged from service on medical grounds on 11 May 2010, stating that he had been told that his hand would be permanently deformed and that the Army had “contributed greatly to this malfunctioning of my hand”. He provided further details about the circumstances in which he had been travelling back to his barracks when the accident occurred and also stated that he had been downgraded as a result of his injuries and was limited in what he could do. In particular, he said that, although he had been put on light duties, he had been assigned to the armoury where the frequent lifting of weapons “made my hand no better”. He also referred to the difficulties he had had since leaving the Army. There was a response to that letter that is not in the papers before me, as a result of which the claimant wrote again on 16 March 2015, specifically alleging that his current disablement was due to “the work the Army subjected me into after my hand surgery”. 4. The claimant was treated as having made a claim under article 9 of the 2011 Order, which provides – “Injury made worse by service 9.—(1) Subject to articles 11 and 12, benefit is payable to or in respect of a former member of the forces by reason of an injury made worse by service if the injury— (a) …, (b) …, or SA v Secretary of State for Defence (AFCS) [2017] UKUT 374 (AAC) CAF/3487/2016 2 (c) arose during service but was not caused by service, and in each case service on or after 6th April 2005 was the predominant cause of the worsening of the injury. (2) Benefit is only payable under paragraph (1) if the injury has been worsened by service and remains worsened by service on— (i) the day on which the member's service ends; or (ii) the date of claim if that date is later. (3) …. (4) …. (5) In the case of paragraph (1)(c), benefit is only payable if the member— (a) was downgraded within the period of 5 years starting on the day on which the member sustained the injury and remains continually downgraded until service ends; and (b) the worsening was the predominant cause of the downgrading.” 5. On 29 June 2015, the claimant was told that his claim had been rejected. The reason given was – “The scheme rules state that benefit is only payable by reason of worsening by service if the worsening was the predominant cause of your downgrading. The available medical evidence confirms that the reason for your downgrading was as a protective measure because of the ongoing condition and not the worsening of your condition. As such no benefit is payable by reason of worsening.” On 10 July 2015, the Secretary of State received a further letter from the claimant, which was treated as a letter of appeal. The decision notified on 29 June 2015 was reviewed, but not revised, on 3 December 2015 and so the case came before the First-tier Tribunal. The claimant set out his case in some detail in a witness statement that was handed in at the hearing, at which he was represented by the Royal British Legion. 6. When dismissing the appeal, the First-tier Tribunal said in its statement of reasons – “16. It was also submitted on the Appellant’s behalf that while downgraded, which included a restriction on his handling weapons, he was required to ‘handle weapons’ while employed in his unit armoury. It was put to the Appellant that a restriction on handling weapons refers to a soldier’s ability to handle a weapon in order to be able to fire it, either operationally or while training; the restriction is not intended to prevent his being responsible for weapons in an armoury, including the requirement to strip and clean them. The Tribunal preferred its knowledge as an expert Tribunal to the Appellant’s opinion on this point. 17. The Tribunal could not accept the Appellant’s contentions that he had been required to undertake activities as part of his duties which led to deterioration or worsening of his right hand. The medical records show that the injury to his index finger recovered, and the effects of the injury to his right thumb were reduced by appropriate treatment and by limiting the activities the Appellant was required to undertake. The evidence showed there was an improvement, not any worsening, during service. SA v Secretary of State for Defence (AFCS) [2017] UKUT 374 (AAC) CAF/3487/2016 3 18. The Tribunal could not identify any causal service factor that led to any worsening nor any reduction in the progress of recovery from the injury. Accordingly, the Tribunal could not allow the appeal.” 7. The claimant applied for permission to appeal, which was refused by the Firsttier Tribunal but granted by Upper Tribunal Judge Turnbull. Although Judge Turnbull did not expressly limit his grant of permission, he rejected contentions that there were material errors of law in paragraphs 12 and 15 of the statement of reasons and I also do so for the reasons that Judge Turnbull gave. However, he found there to be two arguable errors of law in paragraphs 16 and 17 of the statement of reasons. 8. As regards the first, Judge Turnbull said – “The finding that the Appellant’s medical downgrading was not intended to prevent him dealing with weapons in the armoury, including stripping and cleaning them, may have overlooked the fact that the downgrading on 12 March 2009 (p.47) stated that “he should do desk based jobs only to prevent further injuries.’ Arguably carrying, and stripping, heavy weapons, if that is what the Appellant was required to do, was inconsistent with that.” In its context, the word “heavy” was clearly used by Judge Turnbull merely because it was the claimant’s contention that the weight of weapons such as general purpose machine guns, light machine guns and SA80s was what made them dangerous to his recovery, rather than as part of a term “heavy weapons” referring to a particular category of weaponry. 9. The Secretary of State agrees with the claimant and submits that “Weapon handling” would include stripping and cleaning of weapons. However, it seems to me that the meaning of that phrase in the context of the particular documents in which it appeared was a question for the First-tier Tribunal. On the other hand, the medical board of 12 March 2009 not only said that the claimant was unable to “use a weapon” but also that he was unable to “lift any weight or make a fist” and the “light Duties Proforma” of 16 September 2009 not only said that the claimant was unfit for “Weapon handling” but also that he was unfit for other activities, such as “Heavy lifting” (which is arguably an even less precise term) and “Upper body PT”. Therefore, whatever the strict meaning of “Weapon handling”, there were other restrictions on the claimant’s employability and, perhaps inevitably, a certain amount of judgment was required by those tasked with finding work for the claimant to do. However, I cannot see why it mattered whether the claimant working in the armoury was in breach of the terms of medical restrictions or not. The 2011 Order provides for a no-fault scheme of compensation. If damage arising from working in the armoury was the predominant (or only) cause of a worsening of the injury to the claimant’s hand, he fell within the terms of article 9(1)(c) whether or not he should have been required to work there. Moreover, on any view, he was still undertaking only a restricted range of duties by comparison to those he would have been obliged to undertake had he been fully fit. 10. The Secretary of State appears to submit that there is no evidence to support the contention that the claimant was in fact “dealing with heavy weapons”, on the SA v Secretary of State for Defence (AFCS) [2017] UKUT 374 (AAC) CAF/3487/2016 4 basis, as I understand his submission, that the medical records show that he ought not to have been doing so and also do not show that he ever complained about being required to do so. However, that is to ignore the claimant’s own evidence, both written (in his letter of 16 February 2015) and oral (in which specific reference is made to stripping weapons – see, for example, docs 74 and 80), and also, as the claimant has pointed out in his reply, the testimonial from his commanding officer (doc 36, reverse), which confirms that he had been “responsible for the safe storage of weapons and ancillaries” and so supports his contention that he had been working in the armoury and the farewell card from his colleagues (doc 37 and, now, 126 and 127). On the other hand, the Secretary of State is on stronger ground in submitting that the First-tier Tribunal did not make any clear finding as to whether the claimant did work in the armoury and, if so, whether that work had any impact on his injury, although it might perhaps be inferred from paragraph 16 of its statement of reasons that the First-tier Tribunal did not doubt that the claimant had worked in the armoury and, from paragraphs 17 and 18, that it considered that that work did not cause him any harm. 11. This brings me to the second ground upon which Judge Turnbull gave permission to appeal. He said – “If, as a result of that activity, the injury to the Appellant’s thumb did not recover to the extent that it would otherwise have done, as a result of which his downgrading was continued on 9 September 2009, it is arguable that the terms of article 9(1) and (5) of the 2011 Order were satisfied in that (a) the exacerbation of the injury such that it does not recover to the extent anticipated may for this purpose constitute a ‘worsening’ and (b) that ‘worsening’ may have been the predominant cause of the downgrading on 9 September 2009. It does not appear to be necessary that the initial downgrading on 12 March 2009 was also due to a worsening caused by service.” 12. On this point, the Secretary of State merely says that he “would agree that article 9(5) has not been addressed”. I take that to be agreement with the point that Judge Turnbull was making. In any event, I agree with Judge Turnbull, although I would stress that in using the word “anticipated”, he presumably meant “would have been anticipated”, rather than “was anticipated”. In other words, the exacerbation must be such that the claimant does not recover from the injury to the extent that he or she otherwise would have done. What was anticipated at the time is not determinative, although obviously that would be taken into account when considering retrospectively what would have happened but for the exacerbation. 13. So, the question in this case was whether, as a result of working in the armoury, the claimant’s recovery from his hand injury was delayed or prevented so that he remained downgraded until the end of his service when otherwise he would not have been downgraded until then to the same extent or at all. The First-tier Tribunal’s finding in paragraph 18 of the statement of reasons that there was no “causal service factor that led to … any reduction in the progress of recovery from the injury” does, in my judgment, provide an answer that question. 14. However, the Secretary of State submits that the First-tier Tribunal has not given sufficiently detailed reasons for its conclusion and I am prepared to accept that SA v Secretary of State for Defence (AFCS) [2017] UKUT 374 (AAC) CAF/3487/2016 5 concession because the claimant had relied on the medical evidence as showing that he was not recovering to the extent expected and the First-tier Tribunal has not addressed those contentions. 15. Accordingly, on that limited ground, I allow this appeal and remit the case to the First-tier Tribunal. 16. Finally, I observe that the Secretary of State included in his response to the appeal, the following paragraph – “10. In the event that the Appellant requests an oral hearing the Respondent requests that he be afforded the opportunity of representation.” In the event, neither party asked for an oral hearing and I have been able to determine the appeal without one (see rule 34 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698)). However, if the claimant had asked for an oral hearing and the Upper Tribunal had directed one, the Secretary of State would have been entitled to, and would have been given, notice of the hearing and he would also have been entitled to be represented at it (see rules 11, 35 and 36). Moreover, if the direction for a hearing had been made without obtaining further representations from the Secretary of State (as would usually have been the case) and he had wished to object to there being a hearing, he would have been entitled to apply for the direction to be set aside (see rule 6(5)). Consequently, there is no need for the Secretary of State to include in a response to an appeal the kind of request that he did in this case. He need only say whether or not he wants there to be a hearing (see rule 24(3)(f)), so that the Upper Tribunal can take that view into account when deciding whether to direct one. Unlike the First-tier Tribunal, the Upper Tribunal is not bound to hold an oral hearing merely because a party asks for one, but it must have regard to the parties’ views (see rule 34(2)). Mark Rowland 14 September 2017
TH v Secretary of State for Defence (AFCS): [2017] UKUT 309 (AAC)
TH v SSforD (AFCS) [2017] UKUT 309 (AAC) CAF/2242/2016 DECISION OF THE UPPER TRIBUNAL (ADMINISTRATIVE APPEALS CHAMBER) Decision and Hearing 1. This appeal by the claimant succeeds. Permission to appeal having been given by a judge of the First-tier Tribunal on 10th June 2016, and in accordance with the provisions of section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007 I set aside the decision of the First-tier Tribunal (WPAFC Chamber) sitting at Birmingham on 24th February 2016 made under reference AFCS/00419/2015. I substitute my own decision. This is to the effect that the claimed condition (type B meningitis meningococcal) was caused by service. I refer the matter to the Secretary of State to proceed with the consideration of the claim on this basis. 2. I held an oral hearing of this appeal at Field House (London) on 6th July 2017. The claimant attended in person and was represented by Glyn Tucker of the Royal British Legion. The Secretary of State was represented by Robert Dickason of counsel. I am grateful to them for their assistance in both written and oral argument. The Legal Framework 3. The legal position is governed by The Armed Forces and Reserve Forces (Compensation) Scheme 2011 (“the 2011 scheme”). The relevant provisions are set out here (references are to articles of the 2011 scheme). Article 2(1) provides that “forces” means the armed forces and the reserve forces, “member” means a member of the forces and “injury” includes illness (which is also defined) subject to an exception which does not apply in the present case. Article 8 provides: 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. 8(2) Where injury is partly caused by service, benefit is only payable if service is the predominant cause of the injury. [Article 2(1) provides that “predominant” means more than 50%]. Article 11 deals with exclusions relating to travel, sport and slipping and tripping. Article 12 deals with exclusions relating to tobacco, alcohol, drugs, consensual sexual activity, pre-service activities, self-inflicted injury, and the following: 12 Benefit is not payable to or in respect of a 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 – (f) an illness which is – TH v SSforD (AFCS) [2017] UKUT 309 (AAC) caf 2242 2016 2 (i) caused by a single gene defect or is predominantly hereditary in origin; (ii) a personality disorder; (iii) an endogenous infection; or (iv) an exogenous infection except where the infection is acquired in a non-temperate region, and the person has been exposed to the infection in the course of service or where, in a temperate region, there has been an outbreak of the infection in service accommodation or a workplace. 4. In the present case it is agreed that the claimant suffered an exogenous infection in a temperate region (the United Kingdom) and I have underlined the words which particularly need to be considered and which constitute an exception to an exception to entitlement to benefit. 5. Articles 60 and 61 provide that, subject to exceptions that are not relevant in this case, the burden of proving any issue is on the claimant on the balance of probabilities. Background and Procedure 6. The basic facts in this appeal are not in dispute – what is disputed is the meaning and application of the exception to the exception in article 12(f)(iv). The claimant was born on 15th February 1989. He served as a private in the army from 13th November 2011 to 19th April 2013. He was based in barracks and undergoing Parachute Regiment training at Catterick Garrison when, on 10th December 2011, while on a training exercise stretcher race “I began to experience intense pain across my shoulders and upper back”. He continued with training, including a night exercise, over the next few days but his conditioned worsened and he sought medical help, but was prescribed painkillers and his condition was not regarded as an emergency. He felt increasingly unwell and went home on leave on 15th December 2011. On the evening of 17th December “I experienced severe vomiting, diarrhoea, back and leg pains, dizziness and disorientation”. On the following day his brother suspected meningitis and called an ambulance. The claimant was admitted to a critical care ward with multiple organ failure, including acute kidney failure and a collapsed lung, and was diagnosed as suffering from type B meningitis. A coma was induced until 30th December 2011 and he remained in hospital until 10th April 2012. A series of operations took place including a series of amputations or partial amputations of his toes. He was left with damage to his knees, severe permanent scarring, pain and mobility difficulties. Meanwhile, shortly after his diagnosis, steps were taken to protect other relevant occupants of the garrison. There is and was no evidence that in the relevant period any other person in the garrison had a similar diagnosis. 7. On 4th April 2013 the claimant made a claim under the 2011 scheme. On 11th or 16th November 2013 the Secretary of State refused the claim on the basis that as this was an isolated case at the barracks the illness was not predominantly caused by TH v SSforD (AFCS) [2017] UKUT 309 (AAC) caf 2242 2016 3 service. On 12th March 2014 the claimant requested a review of this decision but on 11th July 2014 it was confirmed. On 13th October 2014 the claimant appealed to the First-tier Tribunal against the decision of the Secretary of State. The First-tier Tribunal initially considered the matter on 17th November 2015 but adjourned for the Secretary of State to be represented and new grounds considered. The tribunal finally heard the matter on 24th February 2016 and confirmed the decision made by the Secretary of State. The full statement of reasons was signed on 29th April 2016 and issued on 16th May 2016. On 10th June 2016 Upper Tribunal Judge Wikeley, sitting as Chamber President (Temporary) in the First-tier Tribunal, gave the claimant permission to appeal to the Upper Tribunal against the decision of the Upper Tribunal, stating as follows: “The Chamber would doubtless benefit from the Upper Tribunal’s guidance on the proper approach to Art 12(1)(f)(iv). Is “outbreak” – a word which is not defined in Art. 2 of the Order – an irreducible ordinary word of the English language that cannot be defined further? Did Veterans UK and the Tribunal adopt too demanding a threshold for what amounted to an “outbreak”? Can a sole case of meningitis in a garrison be an “outbreak”? Even if in principle it can, is it an “outbreak” when the individual may be the carrier (the infection must of course be exogenous under this limb of the exclusion)?” 8. I directed that there be an oral hearing of the appeal to the Upper Tribunal. This was originally fixed for 11th May 2017 but was postponed at the request of the claimant and finally took place on 6th July 2017. The Secretary of State opposed the appeal and supported the decision of the First-tier Tribunal. The IMEG Report 9. Reference was made during the course of the proceedings to the 17th May 2013 report of the Independent Medical Expert Group, chaired by Professor Sir Anthony Newman Taylor. This was a report to the Secretary of State and I am not sure of its status in these proceedings – perhaps as expert evidence. In relation to meningitis as a recognised disease in the 2011 scheme this report does not really add to clarification of the issues that I have to decide. It states that meningitis can be accepted as due to service where it is appropriately diagnosed, the infective agent identified, the incubation period determined and “the illness is part of an outbreak”. It does not comment on what is meant by “outbreak” (notwithstanding the Secretary of State’s simple assertion that it does do so). In this particular matter the report seems to be describing the practice of the Secretary of State rather than doing anything else. Dr Gowda 10. Dr Ravi Gowda was the consultant in infectious diseases responsible for the claimant. His report of 13th March 2013 confirmed the detailed account given by the claimant as set out above and confirmed the diagnosis of meningococcal septicaemia with meningitis. It included the following sentence: “… we know that his infection was acquired in army barracks and communal areas such as this are known risk factors for meningococcal meningitis”. TH v SSforD (AFCS) [2017] UKUT 309 (AAC) caf 2242 2016 4 11. Dr Gowda reported further on 30th June 2015 as follows: “We do know that outbreaks of meningitis occur amongst groups of people living closely together. During World War 1 outbreaks of meningitis in army barracks in Europe were common. Further work during World War 2 demonstrated that by appropriate chemoprophylaxis and isolation of the index case, outbreaks could be prevented. It is also Public Health guidance to ensure chemoprophylaxis is undertaken within institutions such as army barracks. The studies in a wider setting have demonstrated both short and long term reduction in transmission within such groups. It is therefore quite possible that [the claimant] acquired the infection as a result of living in close quarters amongst other young people and other cases may have been prevented as a result of the prompt chemoprophylaxis undertaken within the army barracks. We know that other young people living in close quarters such as university students are also at high risk and therefore Public Health England have recommended a vaccination of students against all the major strains of meningococcal meningitis.” Dr Braidwood 12. Dr Anne Braidwood, a Fellow of the Faculty of Occupational Medicine (FFOM) is (or was) a medical adviser to the Secretary of State (and, for these purpose, speaking on behalf of the Secretary of State). In a combined report and submission of 29th January 2016 Dr Braidwood stated (references are to her paragraph numbers): 5. … [The claimant] proposes that his peers at Catterick were the source of his illness as they were infected with the organism. They were not symptomatic or ill and [the claimant] uses the term “subclinical infection”. He goes on to suggest that prompt action re prophylaxis prevented these colleague recruits from developing clinical illness. [Then refers to the report of 30th June 2015 from Dr Gowda]. 6. From overall generally accepted understanding of meningococcal disease and its spread [the claimant’s] suggested sequence of events is plausible. Unfortunately however there are no hard supporting data re numbers affected etc or even whether [the claimant] himself was a carrier; equally Dr Gowda’s letter refers it being “quite possible” that [the claimant]’s illness was acquired in barracks. Neither being plausible nor possible meets the balance of probabilities standard of proof as required for AFCS award. “Quite possible” is some way from “more likely than not”. 13. Dr Braidwood then referred to evidence produced by the claimant from Public Health England, with which she apparently agreed, to the effect that meningococci colonise the nasal pharynx of humans and are frequently harmless commensals. TH v SSforD (AFCS) [2017] UKUT 309 (AAC) caf 2242 2016 5 Between 5 and 11% of adults and up to 25% of adolescents carry the bacteria without sign or symptoms of the disease. It was not fully understood why the disease develops in some individuals and not in others. Age, season, smoking, preceding influenza A and living in closed or semi-closed communities such as university halls of residence or military barracks had been identified as risk factors. 14. Dr Braidwood then considered the use of the word “outbreak” in article 12. In paragraph 8 she said “We take the word “outbreak” to mean “the sudden increase in the incidence of a disease or condition in a specific area or location”. The First-tier Tribunal 15. The claimant presented a deal of other medical evidence and argument to the First-tier Tribunal, including material as to possible aetiology. The tribunal correctly observed (paragraphs 33 and 34) that the standard of proof in 2011 scheme cases was on the balance of probabilities and that speculative evidence is insufficient. However, it then went too far in stating (paragraph 34) that: “In our view we find that the appellant can only succeed if his case is founded on established evidence-based research that provides reliable conclusions that can be reasonably followed”. 16. It is usually inadvisable to try to reformulate statements about the standard of proof and the extract that I have quoted goes well beyond the balance of probabilities. That amounts to an error of law which itself justifies setting aside this decision. 17. In paragraph 35 the tribunal stated that having considered the evidence in the round it found that the appellant had not discharged the burden of proof. It agreed with paragraphs 6 and 8 of Dr Braidwood’s document and with her conclusion that the evidence was insufficient to establish that the claimant contracted the disease as a result of an outbreak in service. However, in doing so it seems to me that the First-tier Tribunal failed to distinguish between the conceptually separate issues of whether there had been an “outbreak”, and the aetiology of the claimant’s condition. This led it to its confusing (to me) conclusions (my underlining): 37. … Whilst the appellant raises the possibility that he contracted meningitis as a result of being exposed to a sub-clinical infection whilst in service, it is equally possible that he was the carrier of the infection. Therefore, in the absence of anyone else infected by this condition, and where the appellant satisfies only two of the factors [age, season, smoking, preceding influenza A and living in closed or semi-closed communities] … we find it more probable then not that he did not contract the illness as a result of an outbreak in service. 38, Based upon the evidence, we find that merely because the Appellant fell ill with this condition whilst serving in 2011 it is not sufficient to overcome the exclusion set out in Article 12 because we find that he did not contract the illness as a result of an outbreak in service. We therefore find the Appellant has failed to prove that it is more likely than not he contracted this illness as a TH v SSforD (AFCS) [2017] UKUT 309 (AAC) caf 2242 2016 6 result of an outbreak in service and, on that basis, the burden of proof has not been discharged. 18. I do not see how it can simultaneously be the case both that two causes are equally possible and that one of them is more probable (paragraph 38) or how a conclusion on the question of law (the meaning of “outbreak”) can be based upon the evidence (paragraph 39). 19. I mean no disrespect to Mr Tucker that I have not gone through his grounds of appeal in the way or order that he presented them but I have tried to cover the issues in what I have said above and in what I say below. 20. In addition to simply disagreeing with the grounds of appeal, the main focus of the submissions on behalf of the Secretary of State was on the meaning of the word “outbreak”. Outbreak 21. The exception to the exception in article 12(1)(f)(iv) applies (in this case) where there has been an “outbreak of the infection” in service accommodation. In relation to the meaning of “outbreak” the Secretary of State has mainly relied on the August 2014 operational guidance from Public Health England on Communicable Disease Outbreak Management. The original version of this document was published in November 2011 and I assume that for present purposes there has been no significant change between the two versions. It must be remembered that this document is about disease management and not about compensation, and that it has no binding effect on the courts or tribunals. 22. Paragraph 4.1 of the guidance states: 4.1 An outbreak or incident may be defined as: an incident in which two or more people experiencing a similar illness are linked in time or place a greater than expected rate of infection compared with the usual background rate for the place and time where the outbreak has occurred a single case for certain rare diseases such as diphtheria, botulism, rabies, viral haemorrhagic fever or polio a suspected, anticipated or actual event involving microbial or chemical contamination of food or water. 23. Other (undisputed) evidence shows that in England in 2015/16 there were 805 cases of meningitis (including 444 of meningitis B), mostly in toddlers and infants but 68 of the 444 in the 15 to 24 age group (see the written submissions of 29th November 2016 from the Secretary of State). From this, the Secretary of State argues that meningitis B cannot be considered a rare disease in the same way as rabies, botulism or diphtheria, and that a single case of meningitis cannot be accepted as an outbreak. TH v SSforD (AFCS) [2017] UKUT 309 (AAC) caf 2242 2016 7 24. At the hearing before me Mr Dickason adopted this argument. I asked whether he was suggesting that a single case can never be an “outbreak” but he explained that the position of the Secretary of State was that a single case of the rare diseases referred to above would be regarded as an outbreak. 25. I do not accept the Secretary of State’s approach to the meaning of “outbreak” for compensation purposes. Clearly, for public health and disease management purposes different considerations apply, but there is no jurisprudential basis for reading the meaning for those purposes across to the meaning for compensation purposes. In the context of the 2011 scheme it seems to me that “outbreak” is an ordinary word with a plain meaning and does not have a technical or scientific meaning, and does not connote any particular quantity of cases. It does not take much imagination to envisage a conversation in which one lay person says to another “Did you hear that there has been an outbreak of meningitis at the barracks?”, and for both of them to understand that the reference is to at least one case. 26. Adoption of the Secretary of State’s approach would have (at least) two particular undesirable consequences. One is that “outbreak” would have a variable and unpredictable meaning depending on the particular disease. The other is (for example) that the first soldier to be diagnosed with meningitis would be excluded from compensation and the second soldier to be so diagnosed (even if only shortly afterwards) would be entitled to compensation. Neither result would be consistent with the purposes of a compensation scheme. Conclusions 27. The decision of the First-tier Tribunal was made in error of law and must be set aside. This is because of its errors in relation to the burden of proof and its misunderstanding of the meaning of “outbreak”. As there is no dispute as to the basic facts I see no advantage in referring the matter back to the First-tier Tribunal. And in accordance with the provisions of the 2007 Act I remake the decision my self. 28. To come within the scheme the claimant has to prove a number of matters on the balance of probabilities. First, that he is or was a member of the forces who suffered injury caused on or after 6th April 2005. This is all agreed. Second, that the injury was caused wholly or partly by service. The claimant argued that his peers at Catterick were the source of his illness as they were (or must have been) infected with the organism, although they were not symptomatic or ill. Dr Braidwood gave evidence that this was plausible (and the Secretary of State does not appear to dispute this). Dr Gowda’s report of 13th March 2013 stated that “… we know that his infection was acquired in army barracks and communal areas such as this are known risk factors for meningococcal meningitis”, although his report of 30th June 2015 was less dogmatic: “It is therefore quite possible that [the claimant] acquired the infection as a result of living in close quarters amongst other young people”. It is agreed that the claimant met at least two of the special risk factors – the fact that he does not meet other risk factors is to be taken into account but cannot be determinative. The question is whether these matters are adequate to satisfy the balance of probabilities (which, contrary to the view of the First-tier Tribunal, is not a question of scientific proof) and in my view they are. TH v SSforD (AFCS) [2017] UKUT 309 (AAC) caf 2242 2016 8 29. On the face of it article 12 nevertheless excludes the payability of benefit because the injury was an illness caused by an exogenous infection. To overcome this the claimant must prove (third) that he has acquired an infection (which is agreed) and, being in a temperate region, (fourth) there has been an outbreak of the infection in service accommodation. The emphasis here is not actually on the notion of “outbreak” but on “outbreak in service accommodation”. If I am correct (above) as to the meaning of outbreak, then it is clear that the outbreak was in service accommodation. 30. For the above reasons this appeal by the claimant succeeds and I make the order indicated in paragraph 1 above. H. Levenson Judge of the Upper Tribunal 24 th July 2017
Secretary of State for Defence v PA (AFCS): [2016] UKUT 500 (AAC); [2017] AACR 18
[2017] AACR 18 (SSD v PA) 1 [2017] AACR 18 (Secretary of State for Defence v A (AFCS) [2016] UKUT 500 (AAC)) Judge Knowles QC CAF/2213/2015 4 November 2015 Armed Forces Compensation Scheme 2011 – article 11 – meaning of hazardous environment The claimant, a soldier, sustained injuries after he went to sit on a wall, lost his balance and fell whilst waiting for a bus to take him to a training destination in Israel. His claim for benefit under the Armed Forces Compensation Scheme (AFCS) was rejected, initially on the basis that his injuries had not been caused by service and on review that the exclusion in article 11(3) of the AFCS, for injuries sustained by slipping, tripping and falling applied, and as the activity was not of a hazardous nature or in a hazardous environment the exceptions in article 11(4) were not engaged. The First-tier Tribunal (F-tT) upheld the claimant’s appeal holding, amongst other things, that the exceptions in article 11(4) did apply as the claimant had been engaged in a sensitive service activity within Israel which was therefore a hazardous environment, given the nature of the operation. The Secretary of State for Defence appealed against that decision arguing that the F-tT had erred in law in deciding that the whole of Israel was a hazardous environment and also by failing to give reasons for its conclusion that the claimant’s injuries were caused by service in accordance with article 8 of the AFCS. Held, allowing the appeal, that: 1. the underlying purpose and intention of the AFCS as a whole was to establish an entitlement to benefit based on a service cause, as opposed to breach of duty or fault, and the exceptions in article 11(4) to the general exclusion of slipping, tripping and falling accidents were intended to capture “non-routine” activities: JM v Secretary of State for Defence (AFCS) [2015] UKUT 332 (AAC); [2016] AACR 3 (paragraph 33); 2. the F-tT erred in interpreting article 11(4)(b) so as to conclude that the whole of Israel was a hazardous environment for the claimant. The environment in which the respondent came to be injured could not, on any sensible interpretation of the 2011 AFCS, be classified as “hazardous”, there being nothing about the activity of a soldier waiting for a bus more likely to lead to a slip, trip or fall than if a civilian had been participating in the same activity in ordinary, or non-service, circumstances (paragraph 34); 3. the F-tT failed to support with adequate reasoning its conclusion that the respondent’s injuries were predominantly caused by service. It should have followed the steps set out in JM before considering whether the exclusions in article 11(3) and 11(4) applied in this case (paragraph 38); 4. the test under article 8(1) and (2) was not whether the claimant was in service or was on duty at the time of his fall but whether his injury was caused and predominantly caused by service. The claimant failed to satisfy that test because at the time of the accident he was doing something necessary for him to carry out his job but he was not yet doing it. The fact that he was in Israel on a training exercise as a member of the Armed Forces could not be regarded as anything other than the setting for what occurred – not the cause of his injury (paragraph 44 to 45); 5. even if the claimant’s injuries had been caused by service, his claim for benefit would still have failed because none of the exclusions in article 11(4) applied: he was not engaged in an activity of a hazardous nature, in a hazardous environment or actually taking part in training (paragraphs 46 to 47). The judge set aside the decision of the F-tT and re-made it to the effect that the claimant’s appeal against the decision of the Secretary of State for Defence was dismissed. DECISION BY THE UPPER TRIBUNAL (ADMINISTRATIVE APPEALS CHAMBER) The DECISION of the Upper Tribunal is to allow the appeal by the appellant Secretary of State for Defence. The decision of the First-tier Tribunal on 7 May 2015 under reference AFCS/00554/2014 involved an error on a material point of law and is accordingly set aside. [2017] AACR 18 (SSD v PA) 2 The Upper Tribunal is in a position to re-make the decision on the appeal by the respondent against the decision of the Secretary of State dated 11 November 2014. The decision that the First-tier Tribunal should have made is as follows and the Upper Tribunal re-makes the decision accordingly. “The respondent’s appeal against the decision of the Secretary of State for Defence is dismissed. The condition of left arm multiple injuries is not attributable to service on or after 6 April 2005.” This decision is given under section 12(2)(a) and 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007. REASONS Introduction 1. This appeal considers the meaning of the phrase “hazardous environment” contained in article 11(4)(b) of the Armed Forces Compensation Scheme (SI 2011/517) (“AFCS”). Compensation under that Scheme is payable for an injury caused wholly or partly by service on or after 6 April 2005 unless any of the exclusions in articles 11 or 12 apply. Article 11 contains exclusions relating to travel, sport and slipping and tripping. By article 11(3) benefit is not payable by reason of injury caused, either wholly or partly, by a member of the Armed Forces slipping, tripping or falling. However, article 11(4) does provide that benefit for injury caused in such a manner will be payable in certain circumstances where the member of the Armed Forces was participating in certain activities in pursuance of a service obligation. These activities are: activities of a hazardous nature; activities in a hazardous environment; and training to improve or maintain the effectiveness of the forces. 2. I have concluded that a “hazardous environment” is one where the risk of slipping, tripping or falling during activity performed in pursuance of a service obligation is likely to be increased. The focus is not solely on whether the environment could in general terms be described as “hazardous” but on whether the activity being carried out by the member in pursuance of a service obligation was rendered more hazardous due to the nature of the environment. Though this appeal concerned the construction of article 11(4)(b), my conclusions may have application to the construction of article 11(4)(a), namely activities of a hazardous nature. 3. Given my interpretation of article 11(4)(b), I find that the First-tier Tribunal (“the tribunal”) hearing this appeal erred in law by finding that the whole of the territory of Israel was a hazardous environment. In waiting for a bus outside his hotel, I find that the respondent was not in a hazardous environment within the meaning of article 11(4)(b) since there was nothing about the environment which rendered waiting for a bus – the activity in which he was participating in pursuance of a service obligation – more likely to lead to a slip or a trip or a fall than if a civilian had been participating in the same activity in ordinary, non-service circumstances. 4. I set the tribunal’s decision aside. I am in a position to re-make the tribunal’s decision and do so to confirm the decision of the appellant Secretary of State dated 11 November 2014 that the condition of left arm multiple injuries was not attributable to service on or after 6 April 2005. Background [2017] AACR 18 (SSD v PA) 3 5. The factual background pertinent to this appeal is summarised as follows. The appellant before the Upper Tribunal is the Secretary of State for Defence and the respondent is a former member of the Armed Forces. I will refer to the parties as “the appellant” and “the respondent” respectively. 6. The respondent enlisted in the Army on 13 November 2003 and was a serving soldier when his injury occurred on 9 March 2013. He was in Israel on a training course with his regiment. With his colleagues, he was waiting outside his hotel for transport to the training destination. He went to sit on a wall, lost his balance and fell, sustaining multiple fractures and dislocations to his left forearm and wrist. 7. The respondent submitted a claim under the AFCS on 25 April 2013. In a decision dated 13 August 2013, the appellant stated that it was not accepted that his injuries had been caused by service and he was thus not entitled to compensation under the AFCS. It was noted that (a) hospital case notes recorded the respondent had fallen off a wall backwards whilst in Israel; and (b) the respondent’s claim form stated he was in Israel with his unit on a course and was waiting for transport to take him to his training destination when the accident occurred. 8. The respondent appealed against the decision on 9 June 2014. He emphasised that he was on duty when the accident occurred and gave further details about the extent of his injuries. The appellant reviewed the original decision but concluded on 11 November 2014 that it was correct. The appellant’s review decision noted that the respondent’s injuries happened when he tripped and therefore that article 11 of the AFCS applied. Waiting outside the hotel for transport was not considered to be activity of a hazardous nature or an activity in a hazardous environment. Being on duty did not constitute an exception to article 11. Finally the appellant did not accept the injury was caused by service, since waiting for transport outside the hotel was an everyday activity and there was nothing to suggest that service was anything more than the background against which the accident occurred. The tribunal decision 9. The hearing took place on 7 May 2015 and the respondent gave oral evidence. The tribunal found that the respondent’s arm injuries were predominantly caused by service and that article 11(4)(b) of the AFCS was applicable. 10. The tribunal set out the evidence given by the respondent in paragraphs 9–13 of its Reasons. He was in Israel on an intense special training exercise lasting six days. The participants on that exercise were issued with special military clothing which bore no insignia. They travelled on a civilian British Airways flight and were told not to mention to security at Tel Aviv airport that they were British Army personnel. The respondent stated that he was singled out for questioning at the airport on the basis, he believed, of his Arab name and his appearance. There was heightened security in relation to the training because of its secret nature, its importance and because the respondent had been told not to tell anyone he was in the British Army. The respondent was a moderate drinker who did not smoke and who had been out with friends the evening before the accident. He was in a position where he had to enforce discipline and set an example by his behaviour. 11. The tribunal found that no particular instructions were issued to the soldiers at the hotel during their stay and they were not made aware of any particular security procedures. It also [2017] AACR 18 (SSD v PA) 4 found that the respondent was travelling to the training activity at the time of the accident. It held that article 11(4)(b) applied in that the respondent was participating in an activity in pursuit of a service obligation and that the activity was in a hazardous environment. The tribunal observed that the term “hazardous environment” was not defined in the AFCS. 12. In reaching that conclusion, the tribunal attached weight to (a) the credible and persuasive evidence given by the respondent and (b) the fact that the training exercise was of a sensitive and classified nature which required the respondent to sign security papers and to observe heightened security measures to ensure the safety and secrecy of the exercise. The tribunal found that the whole of the territory of Israel was a hazardous environment for British Army personnel when engaged in a sensitive operation and was particularly hazardous for someone of the respondent’s ethnicity and physical appearance. His name and physical appearance would have created a real risk of hostility to him whilst in Israel including a real risk of violence. The tribunal noted that the hazardous nature of the environment played no part in causing or contributing to the respondent’s injury but this was not required in order to bring article 11(4)(b) into play. The appeal to the Upper Tribunal 13. The appellant applied for permission to appeal and this was granted by Judge Wikeley, Temporary Chamber President, on 14 July 2015. Two grounds were advanced, namely that the tribunal erred in law by: a) failing to give reasons for its implied finding that the appellant was wrong to conclude that the respondent’s injuries were not wholly or predominantly caused by service; and b) holding that the whole of the territory of Israel was a “hazardous environment” so that the exclusion in article 11(3) of the AFCS for injuries sustained by slipping, tripping and falling did not apply. Judge Wikeley observed that it would be helpful to have the guidance of the Upper Tribunal on the interpretation of article 11(4)(b). 14. I held an oral hearing of this appeal on 28 September 2016. The listing of this hearing was delayed in order that the respondent might be properly represented given that I intended to give the guidance for which Judge Wikeley had asked. At the hearing the appellant was represented by Miss Galina Ward of counsel. The respondent did not attend, his presence having been excused, and Mr Tucker from the Royal British Legion appeared on his behalf. I am very grateful to both representatives for their very helpful written and oral submissions. 15. I will consider the grounds of appeal in reverse order as it makes sense to do so in this particular case. The relevant legal framework 16. The AFCS came into force on 9 May 2011, replacing an earlier version of the Scheme. Article 8 of the AFCS provides that, subject to articles 11 and 12, benefit is payable to or in respect of a member or former member of the Armed Forces by reason of an injury which occurred on or after 6 April 2005 and which is caused wholly or partly by service. Article 8(2) provides that, if the injury is caused partly by service, benefit is only payable if service is the predominant cause. [2017] AACR 18 (SSD v PA) 5 17. Article 11 is headed “Injury and death – exclusions relating to travel, sport, and slipping and tripping”. In that context article 11(3) states that: “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.” Article 11(9) relates to terrorism and emergencies and is not relevant to this appeal. However, article 11(4) states: “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.” 18. The Upper Tribunal in JM v Secretary of State for Defence (AFCS) [2015] UKUT 332 (AAC); [2016] AACR 3 acknowledged that the First-tier Tribunal would often have to make difficult value judgments and findings in relation to provisions in the AFCS Orders whose language contains words of degree and which will apply to a wide range of circumstances ([64]). Further, courts and tribunals are repeatedly warned against the dangers of taking an inherently imprecise word and, by redefining it, thrusting on it a degree of spurious precision. The correct approach is to construe the words by reference to their ordinary meaning, their statutory context and purpose ([56]). In construing and applying the relevant test, its underlying purpose is an important and often determinative factor to be taken into account in deciding whether, on the facts of a given case, it is satisfied ([58]). Ground two: hazardous environment in article 11(4)(b) 19. As an aid to construction, it is helpful to understand the background to the exclusion for slipping, tripping and falling cases in the AFCS. This exclusion was introduced into the 2011 AFCS having not been present in the previous version of the Scheme in force from 2005. 20. In 2009 the then Secretary of State for Defence, Bob Ainsworth, asked Admiral the Lord Boyce to conduct a review of the 2005 AFCS and in February 2010 Lord Boyce’s report was published. His recommendations in large part formed the basis for the revision of the 2005 AFCS found in the present version of the AFCS in force from 9 May 2011. 21. Lord Boyce did not consider the issue of slipping, tripping and falling since specific provision for such accidents was not contained in the 2005 AFCS. When considering a similar exclusion for home to duty travel, now contained in article 11(1) of the 2011 AFCS, the report stated that: “The Scheme contains certain exclusions, in Article 10, on where normal home to duty travel of personnel is not covered by the Scheme. A number of contributors to the Review have suggested that greater clarity, in either the rules or the associated guidance notes, [2017] AACR 18 (SSD v PA) 6 should be provided in certain circumstances, such as when posted overseas, when involved in incidents on MOD property, and for Reservists travelling to training. The Review recommends that such clarity is provided either in the Scheme rules or in appropriate guidance material, which should be widely available to personnel.” (paragraph 2.201) 22. With those recommendations in mind, the slipping and tripping provisions in the 2011 AFCS introduced greater clarity as to when such accidents qualified for an award of compensation. The current provisions of the AFCS are aimed at identifying those trips, slips and falls that are likely to have been caused (or at least predominantly caused) by service, because a service obligation has increased the risk of slipping, tripping or falling to the extent that it can be regarded as the predominant cause of the accident. 23. Miss Ward told me that, on consultation prior to the implementation of the 2011 AFCS, the Pay Colonels of all three services were asked to identify what hazardous environments their members were likely to encounter that would make slipping, tripping or falling more likely. The only example forthcoming – from the Royal Navy – was that of being on board ship. This is reflected in the published guidance on Ministry of Defence Compensation Schemes JSP 765 which provides at paragraph 2.29 under the heading “Hazardous Environments” as follows: “Being on board ship is considered to be a hazardous environment due to the presence of hatchways, ladders and doors with sills for sealing etc. Subject to meeting the balance of probabilities test, slips and trips which occur on board ship are more likely to be considered to be predominantly due to service relative to other circumstances. All other claims will be considered on the facts of the case.” 24. I turn now to the arguments of the parties in this case. The appellant Secretary of State submitted that a hazardous environment would be one in which the risk of slipping, tripping or falling during activity performed in pursuance of a service obligation was likely to be increased. Whilst the tribunal was correct to state that the hazardous nature of the environment did not have to be shown to have caused or contributed to the injury in order for article 11(4)(b) to apply, the legislative purpose behind article 11(3) and (4) was to ensure that, although slipping, tripping and falling accidents were generally excluded from payment of benefit even if caused by service, there were circumstances in which it was recognised such an exclusion would be unfair. Such circumstances were those where the risk of slipping, tripping and falling was likely to be increased due to the non-routine nature of the activities, even though those activities could not necessarily be shown to be directly causally related to the accident in question. 25. The appellant submitted that the environment in which the respondent was waiting for a bus outside a hotel could not, on any reasonable interpretation, be classed as “hazardous”. The tribunal had interpreted article 11(4)(b) too widely in holding that the whole of Israel could be classed as a hazardous environment. 26. The respondent disputed the appellant’s contention that the actual wording of article 11(4)(b) should be construed so that it applied to activities carried out in circumstances where the physical environment rendered it more likely that the activity would give rise to a risk of slipping, tripping or falling than if it were to be performed in an ordinary environment. He argued that the words did not carry that meaning any more than the tribunal needed to find – which it did not – that the hazardous nature of the environment played a part in causing or contributing to the injury. If he was wrong about this, the respondent submitted that the tribunal had not necessarily erred in applying article 11(4)(b) in the way that it had. The respondent had a [2017] AACR 18 (SSD v PA) 7 stressful time in Israel and would have been more prone to lapses of concentration that could have resulted in him slipping, tripping or falling. 27. I am mindful about falling into the trap identified in JM of thrusting spurious precision onto an inherently imprecise phrase but I nevertheless prefer the submissions made by the appellant on this question of construction. In order to trigger the exclusion to the general rule that payment for injuries caused by slips, trips and falls was not authorised by the 2011 AFCS, article 11(4) requires the service member, in pursuance of a service obligation, to have been participating “in one of the following activities” namely, activity of a hazardous nature, activity in a hazardous environment, or training to improve or maintain the effectiveness of the forces. All that article 11(4) does – when read alongside article 3 – is clarify that the risk of slips, trips and falls is increased in certain circumstances. Thus, activities carried out in circumstances where the physical environment itself increases the risk of slips, trips and falls will come within the meaning of article 11(4)(b) – the ship with hatchways and ladders into thoroughfares and raised sills into entrances and exits, to take the Royal Navy’s example in the Guidance referred to in [23] above. 28. Likewise, though not directly in issue in this appeal, activities which by their very nature increase the risk of slips, trips and falls will come within article 11(4)(a). Actually participating in training to improve the effectiveness of the forces will come within article 11(4)(c) because it is known that such activity increases the risk of slipping, tripping and falling accidents taking place. My interpretation of article 11(4)(c) is consistent with the decision given by Upper Tribunal Judge Lloyd-Davies in CAF/2260/2014 (see paragraph 5 of that decision). 29. Other risks to safety such as those arising from a general danger of hostility or violence directed at service personnel are catered for by article 11(9)(a) which specifies risks arising from terrorism or other warlike activities directed towards the person as a member of the forces as such. Thus, the tribunal’s finding that the whole of the territory of Israel was a hazardous environment for British Army personnel engaged in a sensitive operation wholly misinterpreted article 11(4)(b). It failed to have regard to what it was about the objective physical environment that increased the risk of slipping, tripping and falling in Israel, instead relying on irrelevant matters such as the sensitive and classified nature of the training exercise undertaken by the respondent and his colleagues. There was nothing about waiting for a bus outside a hotel in Israel which increased the risk of slips, trips and falls for service personnel in comparison to civilians. 30. The tribunal’s approach to article 11 overall was confused and led it into error. In paragraph 14 of its Reasons, it found that the respondent was travelling to the training activity at the time of the accident. It went onto say that it had considered the provisions of article 11 including the exclusions relating to travel, sport, slipping and tripping and that benefit under that article was not payable by reason of an injury sustained when the injury is caused wholly or partly by travel from home to a place of work or during travel back again unless one of the specific exclusions apply. The Reasons then abruptly stated in paragraph 15 that the tribunal found that paragraph (4)(b) applied as the respondent was participating in an activity in pursuance of a service obligation and that the activity was in a hazardous environment. The tribunal’s reference to travel from home to a place of work would – as article 11(1) provides – engage the exclusions set out in article 11(2) and 11(9), neither of which were applicable to the respondent’s circumstances. Though the tribunal did not make specific reference to article 11(9), I suspect it may have had this in mind – along with its finding that the respondent was travelling to work – when it came to define what constituted a hazardous environment in article 11(4)(b). Its definition was muddled by considerations such as the secrecy of the training mission and [2017] AACR 18 (SSD v PA) 8 heightened security measures which just might conceivably have had some passing relevance were the tribunal considering the application of article 11(9)(a) to travel from home to work but which were of no relevance at all to article 11(4)(b). 31. Application of article 11(4)(b) furthermore requires a construction which is fair to all service personnel. The tribunal found that the respondent’s ethnicity and physical appearance rendered the whole of the state of Israel a particularly hazardous environment for him thereby permitting payment of benefit for a fall outside his hotel whilst he was waiting for a bus. Leaving aside the tribunal’s sweeping and erroneous finding that Israel was a hazardous environment for the respondent and all of his colleagues, the tribunal’s logic came close to suggesting that a soldier not visibly of Arab ethnicity would not have been in a hazardous environment and would not have been able to claim any compensation if s/he had suffered similar injuries in the same circumstances as the respondent did. I accept the appellant’s argument that his interpretation of article 11(4)(b) avoids any potential unfairness by focussing on an objective risk of slipping, tripping or falling created by the physical environment in which the service activity is being carried out. 32. The respondent sought to argue that the stress experienced by him whilst in Israel would have rendered him more prone to lapses of concentration and thus at greater risk of slipping, tripping and falling. I do not find that submission persuasive. First, there is no medical evidence to support the contention that the respondent was experiencing unusual stress whilst in Israel. Second, whilst his time at Tel Aviv airport might have been unpleasant and whilst the training exercise in which he was participating was surrounded by a degree of secrecy, the respondent’s own evidence was that there were no particular instructions issued to him and his colleagues whilst they were at the hotel and they were not aware of any particular procedures relating to their own security. His own evidence did not suggest he was experiencing unusual stress during his trip to Israel. The respondent’s submission was not supported by the evidence before the tribunal and indeed came close to creating the type of unfairness discussed in [31] above. 33. My interpretation of article 11(4)(b) is also consistent with previous Upper Tribunal case law. JM accepted that the underlying purpose and intention of the AFCS as a whole was to establish an entitlement to benefit based on a service cause as opposed to breach of duty or fault ([86]). Further, the exceptions in article 11(4) to the general exclusion of slipping, tripping and falling accidents were intended to capture “non-routine” activities (see paragraph 5 of CAF/2260/2014). 34. I conclude that the tribunal materially erred in law by interpreting article 11(4)(b) so as to conclude that the whole of Israel was a hazardous environment for the respondent. The environment in which the respondent came to be injured could not, on any sensible interpretation of the 2011 AFCS, be classified as “hazardous”. There was nothing about the activity of a soldier waiting for a bus outside a hotel more likely to lead to a slip, trip or fall than if a civilian had been participating in the same activity in ordinary - that is non-service - circumstances. Ground one: failure to give reasons 35. The appellant Secretary of State argued that the tribunal had failed to give reasons for its conclusion that the respondent’s injury was caused by service. Article 11 of the 2011 AFCS excludes the payment of benefit that would otherwise be payable for injuries occurring in certain circumstances. If benefit would not be payable under article 8, then the fact that payment would not be excluded by article 11 does not change that position. The original decision and the review [2017] AACR 18 (SSD v PA) 9 decision put in issue whether the respondent’s injury was caused by service and this should have been addressed by the tribunal. In support of his case, the appellant relied on the decision of the Upper Tribunal in EW v Secretary of State for Defence (AFCS) [2011] UKUT 186 (AAC); [2012] AACR 3 which held that not everything which happens to a member of the Armed Forces doing his/her service job is caused by service (see [26] of EW). The line between service being merely part of the circumstances or being a cause of the injury can be a very fine one (see [31] of EW). 36. Given those circumstances, the appellant argued that the tribunal’s conclusion that the respondent’s injuries were predominantly caused by service was wholly unsupported by any reasoning. It made no attempt to explain the link between its findings of fact and that conclusion and failed to set out its approach to the application of the relevant test. Its decision was thus materially erroneous in law. 37. Mr Tucker argued by contrast that, having found that the respondent fell whilst participating in an activity in pursuit of a service obligation, it was open to the tribunal to determine that the requirement of article 8 for a “service cause” for the injury had been met (see [79]–[83] of JM for the differentiation between a service cause and a process cause). He relied on the Service Member’s Record of Proceedings which stated as follows: “Considered met (?) of Art 11(4)(b) because of Israel being a country which is a hazardous environment and this was especially relevant to [X’s] ethnicity. We further consider the predominance is met by his being on exercise under special orders and instructions (?) in hotel.” 38. Even taking a generous view of the Service Member’s Record of Proceedings, the plain fact is that the tribunal simply failed to support with adequate reasoning its conclusion that the respondent’s injuries were predominantly caused by service. I accept the appellant’s arguments on this ground. The tribunal should have followed the steps set out in [118] of JM before considering whether the exclusions in article 11(3) and 11(4) applied in this case. By failing to do so, it materially erred in law. 39. In the light of the two material errors of law in the tribunal’s decision, it follows that I allow the appellant’s appeal and set aside the tribunal’s decision. Re-making the decision 40. At the hearing the appellant Secretary of State invited me to re-make the decision and dismiss the respondent’s appeal against the Secretary of State’s original and review decision. The respondent invited me to remit the matter to the First-tier Tribunal for re-hearing on the question of whether his injuries were caused by service. 41. After careful thought I have come to the conclusion that the facts are sufficiently clear for me to be able to re-make this decision. Where necessary, I have relied on the respondent’s oral evidence at the tribunal hearing. 42. The respondent’s injuries were caused by him losing his balance when going to sit on a wall outside his hotel and he fell. He was outside his hotel awaiting transport to take him and his colleagues to a training destination when he fell. His injuries were not caused by any process other than the fall. [2017] AACR 18 (SSD v PA) 10 43. I must then categorise the fall by deciding whether the circumstances in which the fall occurred were either service or non-service causes and, if service causes compete with other causes, service causes need to predominate. In so doing I bear in mind the approach endorsed by Upper Tribunal Judge Mesher in EW that the test is not whether the respondent was in service or was on duty at the time of his fall but whether his injury was caused and predominantly caused by service (a formulation also approved in [121] of JW). Judge Mesher held that “the line between service being merely part of the circumstances or being a cause of the injury can be a very fine one and ultimately a matter of impression” ([31]). 44. In the circumstances of this case, I make the following findings. The respondent could not be regarded as doing his job as a member of the Armed Forces whilst waiting for a bus to take him to a training destination on 9 March 2013. He was doing something necessary for him to carry out that job but he was not yet doing it. My conclusion on this issue is unaffected by the facts that (a) he was under a duty to wait for transport to travel to the training area in order to do his job; (b) he was wearing some sort of uniform; and (c) he was subject to military discipline. The fact that the respondent was in Israel on a training exercise as a member of the Armed Forces cannot be regarded as anything other than the setting for what occurred – it was not the cause let alone the predominant cause of the respondent’s injury. 45. In the light of those findings, I conclude that the respondent has failed to satisfy article 8(1) and (2) of the 2011 AFCS and so his claim for benefit must fail. 46. Even if I had held that the respondent’s injuries had been caused wholly or partly by service (where service was the predominant cause of his injuries), I find that the claim for benefit would fail because of the effect of article 11(3) and article 11(4). 47. The respondent’s injuries were wholly caused by his fall when going to sit on a wall. None of the exclusions in article 11(4) applied. Going to sit on a wall outside a hotel was not an activity of a hazardous nature in that it did not of itself increase the risk of a fall occurring. Equally it was not an activity in a hazardous environment because there was nothing about the physical environment outside the hotel which made it more likely that the respondent – or indeed any other person present outside the hotel – would fall. Finally, the respondent was not actually taking part in training to improve or maintain the effectiveness of the Armed Force but was waiting to be taken to a training destination. Conclusion 48. For the reasons explained above, I allow the appellant Secretary of State’s appeal against the tribunal’s decision and I set that decision aside. For the reasons I have given, I re-make the decision and dismiss the respondent’s appeal. His multiple left arm injuries were not attributable to service and thus no benefit is payable to him under the 2011 AFCS.
DA v Secretary of State for Defence (AFCS): [2017] UKUT 189 (AAC)
DA v Secretary of State for Defence (AFCS) [2017] UKUT 0189 (AAC) CAF/1897/2016 IN THE UPPER TRIBUNAL Case No. CAF/1897/2016 ADMINISTRATIVE APPEALS CHAMBER Before Upper Tribunal Judge Rowland Decision: The claimant’s appeal is allowed. By consent, the decision of the Firsttier Tribunal dated 15 March 2016 is set aside and there is substituted a decision that the claimant is entitled to a lump sum award under the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011 (SI 2011/517) at 180% of a tariff level 13 award. 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 15 March 2016, whereby it allowed the claimant’s appeal against a decision of the Secretary of State refusing to make any award under the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011 (SI 2011/517) but, having found that the claimant satisfied the terms of the descriptor for item 55 in Table 2 in Schedule 3 in respect of both his hands and his feet, made a single award at tariff level 13. 2. At the material time, item 55 was in the following terms – “Non-freezing cold injury which has caused or is expected to cause neuropathic pain and significant functional limitation or restriction at 26 weeks, with substantial recovery beyond that date” An award in respect of an injury described by that descriptor is made at tariff level 13. However, a footnote to the descriptor provided – “A descriptor for a non-freezing cold injury refers to either unilateral or bilateral damage to the upper or lower extremities” It is common ground that the First-tier Tribunal erred in law in making one award at tariff level 13, given the word “either” in that footnote. 3. It was originally submitted to the Upper Tribunal by both parties that the Firsttier Tribunal should have made two awards at tariff level 13, one in respect of the injuries to the claimant’s hands and one in respect of the injuries to his feet, on the basis that the terms of the descriptor for item 55 were satisfied twice. However, it is now accepted by both parties that, in those circumstances, article 22 applies. Article 22 provides – “22.—(1) This article applies where either paragraph (2) or (3) is satisfied. (2) This paragraph applies where— (a) one injury or more which is described by more than one descriptor is sustained in or arises from one incident; (b) the descriptors of the injury or injuries relate to one or more body zones; (c) the relevant percentage for the purpose of calculating the amount of a guaranteed income payment is less than 100%; and DA v Secretary of State for Defence (AFCS) [2017] UKUT 0189 (AAC) CAF/1897/2016 (d) the descriptor or descriptors which give rise to an entitlement within tariff levels 1 to 11 are in a single body zone. (3) This paragraph applies where there are no injuries described by a descriptor which give rise to an entitlement within tariff levels 1 to 11. (4) Subject to article 17(2) the amount payable is to be calculated as follows— (a) for the first descriptor, 100% of the relevant amount applicable to that descriptor; (b) for the second descriptor, 80% of the relevant amount applicable to that descriptor; (c) for the third descriptor, 60% of the relevant amount applicable to that descriptor; (d) for the fourth descriptor, 40% of the relevant amount applicable to that descriptor; (e) for the fifth and subsequent descriptors, 20% of the relevant amount applicable to each descriptor. (5) In this article— (a) “first descriptor” means the descriptor in relation to which the highest relevant amount would, but for this article, be payable, (b) where the same amount is payable for each of two descriptors one is the “first descriptor” and the other is to be the “second descriptor”, and references to the second, third, fourth, fifth descriptor and subsequent descriptors are to be construed accordingly.” 4. Paragraph (3) is very poorly drafted but it seems reasonably plain from its context that it is intended to apply where paragraph (2)(a) – one injury or more which is described by more than one descriptor is sustained in or arises from one incident – is satisfied and none of those descriptors is within tariff levels 1 to 11. 5. In those circumstances, it is now common ground that the proper decision in this case is one award at 180% of a tariff level 13 award. I agree. 6. The 2011 Order has been amended with effect from 31 May 2016 by the Armed Forces and Reserve Forces (Compensation Scheme) (Amendment) Order 2016 (SI 2016/557), article 3(d) of which substituted a new item 55 of Table 2 in Schedule 3. I express no view as to the effect of that amendment. 7. When granting permission to appeal, the Temporary Chamber President said that the Upper Tribunal’s guidance on the extent to which (if at all) it is appropriate when interpreting descriptors to have regard to IMEG recommendations and suchlike would be helpful. However, as neither party has addressed that issue in their submissions in this case, I do not consider that I should express a view on it either. Mark Rowland 5 May 2017