[2024] UKUT 124 (AAC)

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.