[2023] UKUT 246 (AAC)

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)).

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 [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.

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.