[2024] UKUT 395 (AAC)

It appears that the arguments and evidence at the hearing before the Tribunal focused on the issue of whether the claimant’s left knee injury was predominantly caused by service.

The relationship between Articles 8 and 11 of the AFCS Order was considered by the Upper Tribunal in SM v SSD [2018] AACR 4. At §17 Judge Rowland said:

“At first sight, there is no connection at all between articles 8 and 11 of the [AFCS Order], but article 11 in fact addresses a number of issues that have caused difficulty when considering the scope of both the civilian industrial injuries scheme and the war pensions scheme (which preceded the Armed Forces Compensation Scheme and where the issues was whether disablement is “attributable to service”) and might otherwise cause difficulty when considering whether an injury was caused by service for the purposes of article 8. The object of article 11 therefore appears to be to introduce an element of clarity in those areas.”

Judge Rowland expressed some doubt as to how successful this venture had been, and noted that there was an “untidy overlap” between the questions arising under articles 8 and 11. He went on (at §18) to say:

“Nonetheless, it will usually be unprofitable to consider whether injuries caused by travel, sport or slipping, tripping or falling might have been caused by service without considering at the same time whether the circumstances fall within an exclusion under article 11; if they do, that will be the end of the case. On the other hand, the fact that a claimant’s case falls within one of the exceptions to the exclusions in article 11 is likely considerably to assist the claimant in showing that the relevant injury was caused by service…”

In SM v SSD Judge Rowland went on to say (at §18) that “some cases will effectively be determined under article 11, whereas others will effectively be determined under article 8”.

In Stoddart v SSD UA-2020-000010-CAF Judge Hemingway said that the AFCS Order sets out a “structured approach” that a decision-maker, including a First-tier Tribunal, must follow. He said the first step was to consider whether the relevant injury has been caused wholly by service and on or after 6 April 2005. If the answer to that is “no” it must then consider whether service was the “predominant cause” of the injury. If the answer to that second question is also “no”, that is “the end of the analytical process” (at §7). If, however, the answer to either of those questions is “yes” it is then necessary to consider whether an exclusion applies which would prevent benefit being payable. A finding that the injury had a cause that fell within one of the categories in article 11 (such as participation in sport) requires the decision maker to go on to consider whether one of the exceptions applies. He referred to SM v SSD, which he described as offering “what might be, at least in some cases, a helpful shortcut” (see §7).

The Tribunal explained in §21-24 of its Full Reasons why it didn’t fully investigate matters relevant to Article 11. It acknowledged Judge Hemingway’s statement in Stoddart v SSD that a tribunal which found an injury had been caused predominantly by service was obliged to go on to consider whether an exclusion, which would prevent benefit from being payable, applies. However, it inferred from what Judge Hemingway said in Stoddart v SSD that this applied only in an appeal in which the Secretary of State had advanced a case that Article 11 excluded the payment of benefit.

It “noted” that the Secretary of State had “not raised an issue under Article 11 in this appeal” (see §23 of its Full Reasons) and said that “[t]o the extent that the Tribunal considered Article 11, we thought it likely the [Secretary of State] was right not to rely on it” (§24 of its Full Reasons).

I find these statements puzzling because the Secretary of State made specific reference to Article 11 in his response to the claimant’s appeal (see page 3 of the appeal bundle). He said:

“Article 8 provides that 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 6^th April 2005.

The Secretary of State notes the comments made by the Consultant Surgeon. However, the Secretary of State does not accept that your left knee injury is wholly or predominantly caused by service. The evidence shows that you sustained an injury to your left knee whilst playing charity/civilian rugby in 2014. You were not carrying out a service obligation at the time of your injury and you had not presented with your left knee prior to this incident.”

I find that this response put Article 11 in issue in the appeal.

The Tribunal’s comment on non-reliance suggests that a concession was made by the Secretary of State at the hearing, but this too would be puzzling, given the way that the AFCS Order is structured.

It doesn’t matter whether one starts, as Judge Hemingway suggests, with the Article 8 questions, and then proceeds to the Article 11 questions if the answer to at least one of the Article 8 questions is answered in the affirmative, or whether one takes Judge Rowland’s “short cut” of considering whether an exception within Article 11 applies from the start.

A case will only “effectively be determined” under Article 8 (without considering whether Article 11 applied) if it is decided that no benefit is payable under Article 8 because the injury is not wholly or predominantly attributable to service. Any decision that benefit is payable under Article 8 requires a second stage of consideration of Article 11 and its exceptions.

I don’t see how the Tribunal can have considered Article 11 not to be relevant to the appeal, and not to be an issue that it needed to determine, given that it found that the injury to the claimant’s knee was predominantly attributable to service. Article 8 is subject to Article 11, so a decision to award benefit under Article 8 cannot properly be made without considering the applicability of Article 11. As such, the Tribunal fell into error of law in deciding the appeal under Article 8 without making findings in relation to those matters identified in Article 11.