[2024] UKUT 395 (AAC)

Rather than simply saying that the Tribunal didn’t explain its decision making in relation to the Article 11 issues with adequate clarity, I think it appropriate to set out my analysis of Article 11 and how the Tribunal should have interpreted and applied it, and to give guidance on what a tribunal needs to say about it in its reasons for its reasons clear the hurdle of ‘adequacy’.

Statutory interpretation requires the reader to identify the meaning of the words of the statute in their context. Part of that context is the legislative scheme of which the provision in question is a part, and an important part of understanding a provision’s context is to understand the legislative purpose of the scheme as a whole. See R (PACCAR Inc and others) v Competition Appeal Tribunal [2023] UKSC 28, 1 WLR 2594 at [40]-[41] per Lord Sales JSC).

The same principles apply to the interpretation of secondary legislation such as the AFCS Order, with the added consideration that delegated legislation must be interpreted in the light of the enabling Act (in this case the 2004 Act), the legislative purpose of delegated legislation being assumed to be the purpose of the primary legislation from which it derives (see ‘Bennion, Bailey and Norbury on Statutory Interpretation’, 8^th edition, at §3.17 and Virgin Media v NTL Pension Trustees II Ltd and ors [2024] EWCA Civ 843 at §63-68).

The legislative purpose of the 2004 Act and the AFCS is to provide state compensation to members of the armed (and reserved) forces where members suffer an injury of which service was the predominant cause. However, Article 8 is expressly stated to be subject to Articles 11 and 12 (see Article 8(1), as set out in §19 above).

Certain injuries are expressly excluded if they are not deemed to be attributable to service, such as injuries caused by, or occurring during, social events (Article 11(8)), or slipping or tripping (Article 11(3)), or home to duty travel (Article 11(1)), unless the injuries occur in specified circumstances linking them to service. Injuries caused by smoking, alcohol, drugs or sexual activity, events before service, certain hereditary illnesses or self-inflicted injuries are also excluded (Article 12(1)).

Article 11(5) is of particular relevance to this appeal. Under Article 11(5) benefit is not payable in respect of an injury sustained, or worsened, wholly or partly by participation in sporting activity (whether as a player, referee or as an organiser or representative of a sport or sporting organisation). A clear finding as to whether the claimant’s injury was sustained or worsened wholly or partly by participation in sporting activity in any of the relevant capacities is therefore required. In this case it was common ground that the left knee injury was sustained or worsened wholly or partly by the claimant’s participation in the Fixture as a player.

Article 11(5) is itself subject to the exceptions in Article 11(6), and (not relevant to this appeal) Article 11(9)).

Article 11(6)(a) excepts from the Article 11(5) exclusion of entitlement, injuries sustained or worsened by participation in sport or sporting activities where (i) those sports or sporting activities have been “approved by the Defence Council as being a sport which enhances the fitness, initiative, and endurance of members of the forces” and (ii) the relevant Service has, prior to the event, “recognised the particular sporting event and the organisation and training for it”.

Article 11(6)(b) provides a further exception where the injury is sustained in the course of sporting activities “approved by the Defence Council and undertaken for the purpose of meeting and maintaining the physical standards required of members of the forces”.

So, in order to determine the applicability of Article 11(6)(a) to the claimant’s situation, the Tribunal was required to answer the following questions: