[2024] UKUT 124 (AAC)

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):

“1.

I give permission to appeal because it is arguable with a realistic prospect of success that the First-tier Tribunal erred materially in law in coming to its decision of 16 September 2022, for the reasons set out in the ground of appeal. In addition, the correct legal construction of article 47(1) of the 2011 Order merits further consideration by the Upper Tribunal, and a definitive ruling by the Upper Tribunal on its construction might be welcomed.

2.

If the ground of appeal relying on the construction of article 47(1) adopted by the [other] First-tier Tribunal…is correct, it would appear from [the FTT’s] view when refusing permission to appeal that the [FTT in this appeal] may have directed itself incorrectly that article 47(1)(a) and (d) were not mutually exclusive. As a result, [and] in any event, it is arguable the First-tier Tribunal failed to consider whether on the evidence before it [the appellant’s] neck and back pain was (instead) an ‘illness’ under article 47(1).”

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:

“2.

The Secretary of State’s submission does not address the legal issue about the correct construction of article 47(1) of the 2011 Order. He argues, instead, that the appeal should be withdrawn, struck out or dismissed as it has become academic. The appeal is said to be academic because the Secretary of State has, subsequent to the First-tier Tribunal’s decision, made an award to [the appellant] under the 2011 Order for the claimed condition of back and neck pain. It is argued, therefore, that any success [the appellant] may have on this appeal could not lead to any more beneficial result for him and so, in that sense, the appeal is academic. It is also pointed out that the latest quinquennial review has recommended that all time limits (such as in article 47(1)) should be removed. It appears to be suggested by the Secretary of State that it is by this means that any future issues of principle concerning time limits should be addressed.

3.

The appellant does not consent to his appeal being withdrawn. Only he can do so: see rule 17 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (“the UT Rules”). (Nor is it apparent on what basis this appeal could be struck out under rule 8 of the UT Rules.) The appellant argues that the appeal is not academic because the Upper Tribunal can still give a binding decision on the correct construction of rule 47(1). Moreover, that binding decision is likely to affect other current cases more readily than any future response to the quinquennial review’s recommendations. He also seeks an oral hearing of the appeal.

4.

At present I incline more to the appellant’s case on this issue than that of the Secretary of State, and at least sufficiently to direct an oral of the appeal to hear argument both on the ‘academic’ nature of this appeal and on the correct construction of article 47(1) of the 2011 Order.

5.

It is trite law that not all academic appeals should be dismissed: see R v Secretary of State for the Home Department ex parte Salem [1991] AC 491 (HL), and paragraph [20] of VS and RS v Hampshire CC [2021] UKUT 187 (AAC), and see further paragraphs [8]-[16] of DD v Sussex Partnership NHS Foundation Trust and Secretary of State for Justice, MIND intervening [2022] UKUT 166 (AAC). I am inclined at present to the view that the Upper Tribunal ruling on the correct construction of article 47(1), on which the specialist First-tier Tribunal Chamber has disagreed, and in a context where no other case is yet at Upper Tribunal appellate level on this issue and where both parties are represented, is an appropriate use of the Upper Tribunal’s jurisdiction even where the point in issue may no longer have any practical effect for [the appellant]

6.

On this very last point, however, I feel I should indicate my concern as to the proper lawful basis for the Secretary of State making an award under the 2011 Order to [the appellant] for the claimed condition of back pain in circumstances where, at present and as between the parties, the First-tier Tribunal’s decision is very arguably to the effect that there was no in-time (and thus lawful) claim by [the appellant] for that condition. What as a matter of law allows the Secretary of State to ignore or reconsider the First-tier Tribunal’s decision in [the appellant’s case]? In other benefit schemes in the UK the law provides (limited) grounds on which a First-tier Tribunal’s decision may be altered by the Secretary of State even though he is a party to the independent tribunal’s decision and otherwise bound by it: see for example sections 10 and 17 of the Social Security Act 1998 and the regulations on ‘supersession’ made under that Act. What are the provisions in play in this case that allowed the Secretary of State to make the award under the 2011 Order to [the appellant] for the claimed condition of back and neck pain notwithstanding the First-tier Tribunal’s decision that [the appellant] had not made a lawful (i.e. in-time) claim under the 2011 Order for that condition? These considerations may be relevant to whether the appeal is academic.

7.

I therefore grant the appellant’s request for an oral hearing of this appeal.”

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:

“36.

The Upper Tribunal has identified that the correct construction of Article 47(1) of the 2011 Order is a point on law which could be determined as a result of the appeal being heard, notwithstanding its academic nature. However, in the Secretary of State’s submission, the question which the Upper Tribunal is considering answering in the abstract is necessarily fact-dependent and specific, and is incapable of reduction to a simple legal definition or test. In those circumstances, this case does not fit the criteria set out in cases such as Salem.

37.

Moreover, the Upper Tribunal is encouraged to proceed with caution in circumstances where attempting to provide further guidance and direction on this question may, in fact, only serve to confuse or misstate the law in the absence of fully argued reasoning by reference to the high number of factual permutations which could arise on any consideration of the 2011 Order.

38.

An objective reading of the terms “injury”, “illness” and “disorder” as used in the 2011 Order shows that the terms were not intended to be used in a mutually exclusive way. Such an approach is contraindicated by: (i) the very definition of the terms within the 2011 Order, (ii) the preceding text in Article 47(1), namely “whichever is the earlier of the following days”, and (iii) the tariff tables within Schedule 3 of the 2011 Order in this case, which refer varyingly to “disorder”, “injury”, and “syndrome” even within tables which are labelled as pertaining to a “disorder”.

39.

Further, such a highly technical approach to the legislation would undermine the attempts to make the AFCS simple and accessible for all members without legal representation, and indeed for the lay administrators of AFCS. A finding that these terms were mutually exclusive would require, on every case, a medical expert to opine on whether the symptoms amounted to an injury or illness. That position would be further complicated where an injury may have led to an illness, or vice versa.

40.

The plain and objective meaning of those terms, combined with the purpose of the 2011 Order, should also inform the Upper Tribunal’s consideration of Article 47(1). As set out above, in providing for four different formulae for when time may start to run for the purposes of bringing an AFCS claim, Article 47 – much like the relevant provisions of the Limitation Act 1980, albeit simplified – ensures that provision is made in order to “remedy the injustice of a claimant’s claim being time-barred before they knew, or could reasonably be expected to know, that they had a claim”.

41.

The function of Article 47(1)(d) is best illuminated by reference to facts. By way of two brief examples only, a claimant under the AFCS could:

a.

sustain a minor impact injury to their abdomen in a collision for which they do not intend to make a claim, but in two years’ time seek medical attention for painful abdominal symptoms, only to learn that the traumatic impact has given rise to a form of organ disease or failure;

b.

injure a limb while deployed abroad, necessitating the lower half of the limb to be amputated. At some later date, the claimant could seek medical attention for painful symptoms, only to be told that infection has taken root and that the remainder of the limb will need to be amputated. Alternatively, the claimant could develop a psychiatric condition as a result of the difficulties experienced in adjusting to life without a limb.

42.

Those are but two examples of a number of factual permutations in which Article 47(1)(d) has real purpose and relevance. The examples are necessarily complicated when considering the relevance of pre-existing injuries and illnesses, and the question of whether or not predominant causation, or a worsening, is made out.

43.

To summarise, the fact that injuries and illness may overlap (whether in a singular condition or across multiple conditions) does not, of itself, render Article 47(1)(d) otiose. However, the application of Article 47(1)(d) as compared to the other sub-paragraphs of that Article will necessarily turn on the facts and medicine of each case, including whether or not on the facts of the case there is an illness as distinct from an injury, and whether or not it is appropriate to treat time as running from the injury or the subsequent illness. The sheer number of factual permutations and the interactions between medical conditions make this a question that cannot be resolved by high level guidance, beyond the need to consider the application of Article 47(1) on the particular facts of each case.”

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.