[2024] UKUT 395 (AAC)

Although the Tribunal said it decided the appeal only on Article 8, it did provide a brief explanation of its thinking on Article 11, indicating that had the applicability of that provision been in issue it would still have allowed the claimant’s appeal.

To decide whether the error of law I have identified was material it is therefore necessary for me to consider the Tribunal’s analysis of Article 11. This is what it said (in §24 of its Full Reasons):

“It was within the knowledge and experience of the Tribunal that rugby has been approved by the Defence Council as being a sport which enhances the fitness, initiative and endurance of members of the forces. Further, as explained above, the Service physiotherapists had sanctioned the [claimant’s] return to rugby training and the service medical officer had been consulted on 24 July 2014 about the charitable rugby match on 27 July 2014. Accordingly, the Tribunal thought it likely the exception under Article 11(6) would have applied to any exclusion that might have been advanced by the [Secretary of State] under Article 11(5).”

The Tribunal was an expert tribunal, and it was entitled to draw upon the expertise and experience of its members. However, its explanation doesn’t address the fact that the Fixture was in relation to a civilian charity match, rather than a fixture organised by the Royal Navy or another service. Further, while the Tribunal made a finding (presumably based on the claimant’s oral evidence at the hearing, which it found compelling) that the service physiotherapists had “sanctioned” his return to rugby training and the service medical officer had been consulted about the Fixture, it didn’t explain how it decided based on those findings that the conditions in either Article 11(6)(a) or (b) were satisfied. In particular, it did not explain how it was satisfied that the ”sanctioning” of a return to rugby training by the service physiotherapists and the consultation with the medical officer together amounted to “recognition” by the relevant Service of the Fixture and the organisation and training for it. As such, it is not adequately clear from the Tribunal’s reasons that its error of law in failing to determine the issues outlined above in relation to Article 11 was not material.