[2024] UKUT 395 (AAC)

Between:

Secretary of State for Defence

Appellant

- v -

HM

Respondent

Before: Upper Tribunal Judge Church

Hearing date(s): 05 September 2024

Mode of hearing: Remote video hearing by CVP

Representation:

Appellant: Ms Jennifer Seaman of counsel, instructed by the Government Legal Department

Respondent: Mr Thomas Banks of counsel, instructed by Hilary Meredith Solicitors

On appeal from:

Tribunal: First-tier Tribunal (War Pensions and Armed Forces Compensation Chamber)

Tribunal Case No: AFCS/00498/2021

Tribunal Venue: Arnhem House, Leicester (remote hearing by video)

Decision Date: 10 January 2023

RULE 14 Order

Pursuant to rule 14(1) of the Tribunal Procedure (Upper Tribunal) Rules 2008, it is prohibited for any person to disclose or publish any matter likely to lead members of the public to identify the respondent in these proceedings. This order does not apply to: (a) the respondent; (b) any person to whom the respondent discloses such a matter or who learns of it through publication by the appellant; or (c) any person exercising statutory (including judicial) functions where knowledge of the matter is reasonably necessary for the proper exercise of the functions.

SUMMARY OF DECISION

WAR PENSIONS AND ARMED FORCES COMPENSATION (56)

56.5 Armed Forces Compensation Scheme

This decision considers the proper interpretation of, and approach to, Article 11 of the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011.

In particular, it considers:

• when Article 11 must be considered by a tribunal, and

• where an injury was sustained or worsened by participation in sporting activity, what is required to fall within the exceptions in Article 11(6) to the exclusion of benefit in Article 11(5).

It decides that the sport of rugby has been “approved” by the Defence Council for the purposes of Article 11(6)(a) but subject to conditions, including that involvement in civilian rugby is at the participant’s own risk and must be done in the participant’s own time. Therefore, while participation in civilian rugby is not prohibited, the Defence Council’s approval of the sport of rugby for the purposes of Article 11(6)(a) of the AFCS Order does not extend to civilian (including civilian charity) rugby.

It decides that the requirement in Article 11(6)(a) that a sporting event and the organisation and training for it be “recognised” by the relevant Service prior to the event requires more than simply an acknowledgement of the awareness by someone in the chain of command that the event will occur and may require training, and that clinical advice on injury management given by a medical officer in the course of medical appointments is incapable of amounting to recognition by the Service for the purposes of Article 11(6)(a).

It decides that while a one-off civilian charity rugby match may provide some benefit in terms of maintaining physical fitness, such a benefit is merely incidental: its purpose is to raise funds for charity and to raise the charity’s profile, rather than to meet or maintain physical standards required of members of the forces, and it does not satisfy the requirements for the exception in Article 11(6)(b) to apply.

SM v SSD [2018] AACR 4 followed.

Please note the Summary of Decision is included for the convenience of readers. It does not form part of the decision. The Decision and Reasons of the judge follow.

DECISION