Upper Tribunal Administrative Appeals Chamber

[2024] UKUT 170 (AAC)

Fecha: 25-Abr-2024

The non-fault based nature of the AFCS

60.

The argument that the FTT overlooked the non-fault based nature of the AFCS represented a challenge to paragraph 17 of the FTT’s decision:

17.

Were the Services responsible for providing sunscreen

As noted above, Mr C was well aware from his holidays in Australia of the dangers of sun exposure and the need for sunscreen. He put this knowledge into practice when engaging in activities in his private life, (hill walking and cycling) outdoors. He described his family as being particularly fair skinned (he considered himself to be a Type 3 skin type; i.e. tans fairly easily) and therefore particularly careful in the sun.

In these circumstances we find it extraordinary that he failed to pack sunscreen when posted to a known hot and sunny location, especially after he had learned lessons about sunburn from previous postings. We do not accept his assertion that this would make his baggage ’too heavy’; a bottle of sunscreen would be insignificant in relation to the considerable other ‘kit’ he would be taking, and, during his longer tours, supplies could be replenished during mid-tour breaks back home, or in local shops where appropriate.

We accept that service is primarily responsible for providing protection against specific risks in operational areas and malaria is the most common example with medication, nets and appropriate clothing being routinely supplied. However, we find that sunshine is a global phenomenon and individuals would be expected to source their own, depending on preferred brands, SPF factor etc. for use both on and off duty. We note that sunburn to the extent that it prevents a service person from carrying out their duties is a disciplinary offence in the military.

We therefore consider that sunscreen should be viewed in the same light as personal toiletries such as shampoo/soap/toothpaste and there is no ‘factor of service’ in the non-standard provision of sunscreen.

Notwithstanding the above it is clear that there is no consensus about whether sunscreen is effective, with protective clothing and avoidance of exposure either side of midday also being important.

61.

Counsel for the Appellant also drew attention to paragraph 18.3 of the FTT’s decision, namely the finding that “It was his responsibility to equip with and use sunscreen when necessary”. As such, so it was argued, the FTT was identifying an alleged failure on the part of the Appellant as being causative, and this finding was in complete disregard of the non-fault based nature of the AFCS.

62.

This submission is unpersuasive for three reasons.

63.

First, the FTT was entitled to consider who bore the responsibility for the provision of sunscreen, not least because the issue had been raised at the hearing. This was ultimately an issue of fact, not law. If armed forces personnel bear that responsibility, then to the extent that injury was caused by lack of sunscreen it is hard to see how such injury could be said to have been caused by service. As Mr Hays observed in his skeleton argument (at §29), nobody could seriously suggest that rotten teeth caused by a soldier’s failure to use toothpaste would be an injury caused by service.

64.

Secondly, and crucially in any event, it so happened that the issue of the responsibility for providing sunscreen turned out not to be determinative in any significant respect. It is not as though the FTT found that post-2005 sun exposure was causative but then ruled out that factor as a service cause on the basis that the Appellant had neglected to apply sunscreen. As the FTT had noted at paragraph 16.3, “Para 4.16 [of the UVR Synopsis] states that studies into the relationship between sunscreen and melanoma are inconsistent. The consensus is that properly applied they help to reduce solar damage but protection against melanoma is less certain.” This led to the FTT’s observation in paragraph 17 that “it is clear that there is no consensus about whether sunscreen is effective”. In short, the FTT’s conclusion was that it was not satisfied that post-2005 sun exposure was the cause of the melanoma, whether or not the extent of exposure might have been alleviated by sunscreen.

65.

Thirdly, it is axiomatic that tribunals need not refer to well-known principles of law – they are assumed to know them unless their reasons demonstrate otherwise. As Burnett LJ (as he then was) remarked inEJA v Secretary of State for the Home Department [2017] EWCA Civ 10 (at [27]) “some principles are so firmly embedded in judicial thinking that they do not need to be recited”. By the same token, a principle as elementary as the no-fault basis of the AFCS (and indeed of its predecessor war pensions scheme) is part of the daily currency of a FTT sitting in the WPAFCC. One would need compelling evidence before making a finding that a tribunal had failed to observe such a fundamental tenet of the statutory scheme. No such warrant applies in the present case.