Upper Tribunal Administrative Appeals Chamber

[2024] UKUT 170 (AAC)

Fecha: 25-Abr-2024

The AFCS legislative framework

The AFCS legislative framework

30.

The relevant legislative framework is established by the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011 (SI 2011/517; ‘the 2011 Order).

31.

Article 2(1) of the 2011 Order defines “injury” for all relevant purposes as including “illness”, which in turn is defined as meaning “a physical or mental disorder included either in the International Statistical Classification of Diseases and Related Health Problems or in the Diagnostic and Statistical Manual of Mental Disorders”. There is accordingly no dispute but that Colonel C’s melanoma constituted an “injury”. Article 2(1) also, and unsurprisingly in both respects, defines “service” as meaning “service as a member of the forces” and defines “forces” as meaning “the armed forces and the reserve forces”.

32.

Article 8 of the 2011 Order provides as follows:

Injury caused by service

—(1) Subject to articles 11 and 12, benefit is payable to or in respect of a member or former member by reason of an injury which is caused (wholly or partly) by service where the cause of the injury occurred on or after 6th April 2005.

(2)

Where injury is partly caused by service, benefit is only payable if service is the predominant cause of the injury.

33.

Reverting for a moment to Article 2(1), this further provides that “predominant” means “more than 50%”.

34.

Article 60 of the 2011 Order further provides that the default position and so the general rule – subject to an exception which does not arise in the present case – is that “the burden of proving any issue is on the claimant”. This stands in stark contrast to the position under the war pensions scheme, with its more complex but more claimant-friendly provisions on the burden of proof. Moreover, under the AFCS, as stipulated by Article 61 of the 2011 Order, “The standard of proof applicable in any decision which is required to be made under this Order is the balance of probabilities.” More generally, so far as evidence in AFCS cases is concerned, Article 62 provides as follows:

Evidence

62.

—(1) For the purposes of determining any issue under this Order, the Secretary of State is to produce such medical or other records of a member or a former member (whether living or deceased), as are held by the Secretary of State for Defence or the Defence Council and are relevant to the issues to be decided.

(2)

The Secretary of State is to consider any evidence which appears to be relevant to the issues which are to be decided and is to determine those issues on that evidence.

(3)

Where any decision required to be made under this Order is, or includes, a decision involving a medical issue, that decision is to be made in accordance with generally accepted medical and scientific knowledge prevailing at the time the decision is made.

35.

Mr Rawlinson, for the Appellant, did not take issue with the FTT’s own exposition of these material statutory provisions. Indeed, he described the relevant passage in the FTT’s statement of reasons, which set out the key provisions of the 2011 Order, as “an impeccable statement of the law”. Rather he submitted that it was in the application of the law to the facts and in its handling of the facts that the FTT had fallen into error. He further acknowledged that he had to show an error of law in the FTT’s approach and not simply a different view as to the facts. In this context it is important not to lose sight of the role of appellate review in deciding appeals from a specialist first instance jurisdiction.