[2024] UKUT 395 (AAC)

Even if I am wrong about the “approval” of the sport of rugby not extending to civilian rugby for the purposes of Article 11(6)(a), for the exception to apply the sporting event (i.e. the Fixture), and the organisation and training for it, must have been “recognised” by “the relevant Service” (which I’ll call the “recognition requirement”). It is not in dispute that the “relevant Service” in this case is the Royal Navy.

The claimant’s evidence was that he was seen by Service physiotherapists who “sanctioned” his return to rugby training, and he sought medical advice from Dr Iddles, a medical officer at HMS Nelson, who gave him “the green light” to play rugby in a few days’ time (see §8 of the claimant’s witness statement at page 45 of the appeal bundle).

The Tribunal accepted this evidence and, as I have explained above, I have taken this evidence at face value for the purposes of analysing the application of Article 11 to this appeal. The Tribunal said that it “thought it likely the exception under Article 11(6) would have applied to any exclusion that might have been advanced” under Article 11(5) (see §66 of the Tribunal’s written reasons).

The recognition requirement in the second limb of Article 11(6)(a) gives rise to two issues:

“Recognise” is not defined in the AFCS Order. Mr Banks, for the claimant, argued that because there was no requirement that the relevant Service permits, authorises or approves an event, the recognition requirement can be “no more than acknowledgement that the sporting event is happening (and where necessary that it may require training and organisation not done by the Navy)” (see §17(b)(ii) of Mr Banks’s Skeleton Argument). Ms Seaman, for the Secretary of State, argued that a more formal process was required.

Reading the AFCS Order as a whole, and in the context of its legislative purpose, it is apparent that the requirement must be for more than a mere indication that the relevant Service is aware that the event is taking place. The word “recognise” is capable of bearing several different meanings. It is difficult to see why a requirement for “recognition” would be included if the word were to bear the meaning proposed by Mr Banks. The much more apposite meaning of “recognise” in the context in which it appears in the AFCS Order is the bestowing on the event of a formal status in the nature of an approval or sanction. The reason for such a requirement is the underlying policy that participation in civilian sporting events over which the Service has no control is at the risk of the individual and not of the Service/the AFCS.

The next issue is who may recognise a sporting event and the organisation and training for it, and how. Mr Banks argued that anyone in a position of authority in the naval chain of command was capable of satisfying the recognition requirement by acknowledging the existence of the Fixture, and that Dr Iddles, as a medical officer with responsibility for decisions affecting what the claimant could do in the course of his employment, had authority to provide recognition on behalf of the Service for these purposes.

Relying on the evidence of Miss Bara, Ms Seaman argued that it was not open to the Tribunal to find that the Fixture and the organisation and training for it was recognised by the Service physiotherapists or Dr Iddles, because only Armed Forces Sports Boards, Single Service Sports Boards or unit commanders were capable of providing such recognition. Miss Bara noted there was no record of any of those entities having recognised the Fixture or the organisation and training for it (see §5-6 of Miss Bara’s witness statement) at page 22 of the appeal bundle, and the claimant didn’t rely on anything other than the conversations with the physiotherapists and Dr Iddles.

As Mr Banks pointed out, Miss Bara used the words “authorise” and “approve” rather than “recognise” when discussing sporting events, and neither “authorisation” nor “approval” is required by Article 11(6)(a) (only “recognition”). However, given what I have said about the proper meaning of “recognition” in this context, that inconsistency is not material.

Returning to the circumstances of this appeal, taking the claimant’s evidence as to what he was told at his appointments with the Service physiotherapists and Dr Iddles at face value, what is described amounts to clinical advice about the management of the claimant’s injury and, at its highest, the giving of permission to train for and play in, the Fixture. It does not amount to “recognition” (properly understood) by the Service of the Fixture itself, or of the organisation and training for it. As such, it was incapable of satisfying the requirements of Article 11(6)(a).