[2024] UKUT 238 (AAC)

Section 5A of thePensions Appeal Tribunals Act 1943 deals with appeals in AFCS cases. It provides as follows:

“5A:-(1) Where, in the case of a claim to which this section applies, the Minister makes a specified decision—

(a)

he shall notify the claimant of the decision, specifying the ground on which it is made, and

(b)

thereupon an appeal against the decision shall lie to the appropriate tribunal on the issue whether the decision was rightly made on that ground.

(1A) This section applies to—

(a)

any such claim as is referred to in section 1, 2 or 3 of this Act;

(b)

a claim under a scheme mentioned in section 1(2) of the Armed Forces (Pensions and Compensation) Act 2004 (compensation schemes for armed and reserve forces).

(2)

For the purposes of subsection (1), a “specified decision” is a decision (other than a decision which is capable of being the subject of an appeal under any other provision of this Act) which is of a kind specified by the Minister in regulations.”

Regulation 3 of the Pensions Appeals Tribunals Act 1943 (Armed Forces and Reserve Forces Compensation Scheme) (Rights of Appeal) Regulation 2011s (“the Specified Decisions Regs”) is made pursuant to section 5A(2) of thePensions Appeal Tribunals Act 1943. That regulation provides that a decision is a specified decision (and therefore is appealable), as follows:

“3(1)….the following decisions are specified for the purposes of section 5A(2) of thePensions Appeal Tribunals Act 1943, that is a decision which—

(a)

determines whether a benefit is payable;

(b)

determines the amount payable under an award of benefit; and

(c)

is issued under article 26(6) (refusal to make a temporary award permanent etc.) or 26(8) (addition of new descriptor) of the 2011 Order, relating to the making of a permanent award.

Section 5B ofPensions Appeal Tribunals Act 1943 further provides that:

“5B:- In deciding any appeal under any provision of this Act, the appropriate tribunal —

(a)

need not consider any issue that is not raised by the appellant or the Minister in relation to the appeal; and

(b)

shall not take into account any circumstances not obtaining at the time when the decision appealed against was made.

Section 1 of the Armed Forces (Pensions and Compensation) Act 2004 empowers the making of the AFCS. It provides, relevantly, as follows:

“Pension and compensation schemes: armed and reserve forces

1:- (1) The Secretary of State may by order establish schemes which, in respect of a person’s service in the armed forces, provide—

(a)

for benefits, in the form of pensions or otherwise, to be payable to or in respect of him on termination of service or on death or retirement, or

(b)

for payments to be made towards the provision of such benefits.

Such a scheme is referred to in this Act as an armed forces pension scheme.

(2)

The Secretary of State may by order establish schemes which provide for benefits to be payable to or in respect of a person by reason of his illness or injury (whether physical or mental), or his death, which is attributable (wholly or partly) to his service in the armed forces or the reserve forces.

Such a scheme is referred to in this Act as an armed and reserve forces compensation scheme.”

Under article 8 of the AFCS it is provided that:

Article 9 of the AFCS deals with the different situation of an injury not caused by service but worsened by service. It sets out, insofar as is material:

“Injury made worse by service

9.

—(1) …..benefit is payable to or in respect of a former member of the forces by reason of an injury made worse by service if the injury….

(c)

arose during service but was not caused by service,

And…service on or after 6th April 2005 was the predominant cause of the worsening of the injury.

(2)

Benefit is only payable under paragraph (1) if the injury has been worsened by service and remains worsened by service on—

(i)

the day on which the member's service ends; or

(ii)

the date of claim if that date is later.

Article 15 of the AFCS is concerned with the benefits payable for an injury if, for example, an injury has been caused by service on or after 6 April 2005, and provides:

“Description of benefits - injury