[2024] UKUT 124 (AAC)

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.