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The grounds of appeal and the parties’ submissions
The grounds of appeal and the parties’ submissions
Permission to appeal was granted by Judge Siddique of the First-tier Tribunal. I later gave the Secretary of State permission to rely on amended grounds of appeal. The amended grounds are summarised below.
Ground 1: the First-tier Tribunal misapplied Article 11 of the AFCS because it mistakenly decided that the facts of this case brought the claimant within Article 11(6). It should instead have decided that the circumstances of this case did not fall within Article 11(6) of the AFCS because:
the Defence Council had not approved charitable rugby games as a sporting activity “which enhances the fitness, initiative and endurance of members of the forces” and the Royal Navy did not, prior to the event, recognise the Fixture or the organisation and training for it;
only the UK Armed Forces Sports Board, Single Service Sports Boards or unit commanders (and not service physiotherapists or service medical officers) have authority to recognise a sporting event and the organisation and training for it, and they did not do so in respect of the Fixture;
the sporting activities approved by the Defence Council which are undertaken for the purpose of meeting and maintaining the physical standards required of members of the forces are running, cycling, circuit training, weight training and other fitness activities, which are a separate category to sporting events, and do not include charity/civilian rugby matches.
due to the operation of Article 11(5), therefore, the claimant was not entitled to compensation for his injuries.
Ground 2: the First-tier Tribunal erred in law by failing to take into account relevant material facts, and consequently made an irrational finding that service was the predominant cause of his left knee injury.
The Secretary of State asks that the FtT Decision be set aside and asks me to remake the decision confirming the Secretary of State’s disallowance of the claim in respect of the claimant’s left knee injury.
The claimant resists the appeal. It was argued by Mr Banks on his behalf that Article 11 wasn’t in issue in the appeal before the Tribunal, and what the Tribunal said about Article 11 was therefore obiter only. He argued that the appeal before the Upper Tribunal should be determined solely in relation to the Tribunal’s decision making in relation to Article 8 of the AFCS Order, on which the FtT Decision was based.
He argued further that even if Article 11 was relevant to the appeal, the claimant’s circumstances fell within the exceptions in both Article 11(6)(a) and Article 11(6)(b).
Mr Banks also argued that the Tribunal’s findings of fact were open to it on the evidence as it assessed it, and there was nothing irrational about them.
The claimant maintains that the FtT Decision involved no material error of law, and should be confirmed.
- Heading
- The decision of the Upper Tribunal is to allow the appeal. The decision of the First-tier Tribunal involved an error of law. Under section 12(2)(a), b(ii) and (4) of the Tribunals, Courts and Enforcem
- Introduction
- The agreed factual and procedural background
- Factual issues in dispute
- Legal framework
- The First-tier Tribunal’s decision
- The grounds of appeal and the parties’ submissions
- Analysis
- Was the Tribunal mistaken in its analysis of Article 11?
- How should the Tribunal have approached Article 11 and what did it need to say about it?
- Has civilian/charity rugby been “approved” by the Defence Council?
- Was the Fixture, and the organisation and training for it, “recognised” by the relevant Service?
- Article 11(6)(b)
- Disposal
- Conclusions