[2024] UKUT 238 (AAC)

a fast payment; and

medical expenses.

Schedule 3 has effect for the purpose of determining—

the descriptor;

the tariff level;

the amount of a lump sum;

the conditions relating to payment of a supplementary award; and

the amount of a supplementary award.”

Part 1 of Schedule 3 to the AFCS sets out what it describes as DESCRIPTORS, TARIFF LEVELS AND AMOUNTS – “THE TARIFF”. There are then listed under Part 1 various Tables dealing with different types of injury or illness. For example Table 1 is about “Burns”, Table 2 concerns “Injury, Wounds and Scarring”, Table 3 is about “Mental Disorders” and Table 7 deals with the “Senses”. Each Table is structured so that it covers “Item”, “Column Level” and “Description of injury and its effects (“descriptor”)”. What falls below in each Table are injuries graded in terms of their seriousness, from most serious down to least serious. So, under “Table 1 – Burns” the most serious injury is one which has left the person with “Burns, with partial, deep or full thickness burns affecting 70% or more of whole body surface area”, whereas the least serious type of ‘Burn’ is “Burns, with superficial burns affecting 1 to 4.4% of whole body surface area”.

In addition, certain of the descriptors in Schedule 3 deal with the effects of the injury. Thus under ‘Table 2 – Injury, Wounds and Scarring’ the injury may be a “Complex injury covering all or most of the area from thigh to ankle or shoulder to wrist, causing permanent significant functional limitation or restriction”. And under “Table 3 – Mental Disorders” includes a “Mental Disorder, causing functional limitation or restriction, which has continued, or is expected to continue for 5 years”. For completeness, under “Table 7 – Senses”, bilateral deafness and bilateral hearing loss extends from “Total deafness in both ears” to “Bilateral permanent hearing loss of 50-75dB averaged over 1, 2 and 3kHz”.

It is important to note that on the face of it the AFCS does not set down a definitive, single stage at which the extent to which an injury has been caused (or made worse) by service is to be determined. No bright lines are drawn in the AFCS, demarcating where and when that issue (if it arises) must be decided. Putting this point another way, there is no express preclusion against determining that issue at the ‘regulation 3(1)(b) of the Specified Decisions Regs stage’ of deciding the correct amount of the award, if it has not already and clearly been decided.

In terms of claiming and adjudication under the AFCS, article 43 makes it a condition of entitlement that a claim is made for most benefits. Adjudication is dealt with in Part 7 of the AFCS. Under article 51 of the AFCS:

“Decisions

51.

—(1) The Secretary of State is to determine any claim for benefit and any question arising out of the claim.

(2)

The Secretary of State is to give reasons for the decision.

(3)

The decision and the reasons for the decision must—

(a)

be in writing;

(b)

be given or sent to the claimant; and

(c)

inform the claimant of any right that the claimant may have—

(i)

to a reconsideration of the decision under article 53; and

(ii)

to appeal that decision to the appropriate tribunal under section 5A(1) of thePensions Appeal Tribunals Act 1943.”

Article 54 deals with finality in relation to the decision-making of the Secretary of State, and provides:

“Finality of decisions

54.

—(1) Where the Secretary of State has made a final decision awarding benefit, there is to be no review of that decision except in the circumstances specified in articles 55, 56, 57, 58 and 59.

(2)

Where the Secretary of State has made a final decision which makes no award of benefit, there is to be no review of that decision except in the circumstances specified in article 59.

(3)

In this article, and subject to paragraph (4), a final decision is—

(a)

a decision under article 51;

(b)

a decision making a final award under article 52;

(c)

a decision revised by the Secretary of State under article 55, 56, 57, 58 or 59;

(d)

a decision made under article 55, 56, 57 or 59 which maintains the decision under review;

(e)

a decision revised by the Secretary of State following a reconsideration under article 53; or

(f)

a new decision which maintains the original decision following a reconsideration under article 53.

(4)

The decisions referred to in sub-paragraphs (a) to (d) are final decisions where there has been no application for reconsideration under article 53, or the time for such an application has expired.

Therefore, when the Secretary of State decided (see further below) that the appellant’s hearing loss was not caused by service, that was a final decision on that issue, subject to that decision being appealed. However, nothing in Part 7 of the AFCS mandated any necessary content or scope to that decision under article 8, such that it was required to determine the extent to which the injury had been caused by service. Moreover, Part 7 of the AFCS says, and can say, nothing about finality of decisions made by the First-tier Tribunal on appeal.