[2024] UKUT 395 (AAC)

Section 1(2) of the Armed Forces (Pensions and Compensation) Act 2004 (the “2004 Act”) permitted the Secretary of State by Order to “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”. The Secretary of State established the AFCS pursuant to the 2004 Act by way of the AFCS Order.

The articles of the AFCS Order that are most relevant for the purposes of this appeal are Articles 8 and 11. They provide (so far as applicable):

“Article 8 – Injury caused by service:

“(1)

Subject to articles 11 and 12, benefit is payable to or in respect of a member of former member by reason of any injury which is caused (wholly or partly) by service where the cause of the injury occurred on or after 6^th April 2005.

(2)

Where injury is partly caused by service, benefit is only payable if service is the predominant cause of the injury.”

Article 11 – Injury and death – exclusions relating to travel, sport and slipping and tripping

“… (5) Except where paragraph (6) or (9) apply, benefit is not payable to or in respect of a person by reason of an injury sustained by a member, the worsening of an injury, or death which is caused (wholly or partly) by participation in sporting activity, as –

(a)

a player;

(b)

a referee;

(c)

an organiser or a representative of a particular sport or sporting organisation.”

“(6)

This paragraph applies where –

(a)

the Defence Council have approved the sport or sporting activity as being a sport which enhances the fitness, initiative and endurance of members of the forces, and prior to the event, the relevant Service has recognised the particular sporting event and the organisation and training for it; or

(b)

the sporting activity is approved by the Defence Council which is undertaken for the purpose of meeting and maintaining the physical standards required of members of the armed forces.

(7)

For the purposes of paragraph 6(a), the Defence Council may approve a single sport or sporting activity or a class of such activities and may approve such activities unconditionally or subject to any specified condition.

…

(10)

In this article –

…

(c)

“sporting activity” includes an adventurous course or an adventurous expedition approved by the Defence Council.”