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 2016-2024, there were 43 Upper Tribunal (UT) decisions related to War Pensions and Armed Forces Compensation Chamber decisions.
Below are those 43 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.
2016-2024 Upper Tribunal decisions
Case:
Judicial Summary:
Decision date:
Tags:
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
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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