[2025] UKUT 033 (AAC)

Appeal No. UA-2024-001243-AFCS

Anonymity: There having been no objection from the parties, the appellant in this case is anonymised in accordance with the practice of the Upper Tribunal described in Adams v Secretary of State for Work and Pensions and Green (CSM) [2017] UKUT 9 (AAC), [2017] AACR 28. The practice does not prevent publication by a party or anyone else of the identities of the individuals involved in the case. Anyone who wishes to be informed of the identity of the parties may make an application to the Upper Tribunal, and the parties will be given notice and an opportunity to object if such an application is made.

Between:

MJU

Appellant

- v -

SECRETARY OF STATE FOR DEFENCE

Respondent

Before: Upper Tribunal Judge Stout

Decided on consideration of the papers

Representation:

Appellant: In person

Respondent: Paul Carolan, Veterans UK

On appeal from:

Tribunal: First-Tier Tribunal (War Pensions and Armed Forces Compensation Chamber)

Tribunal Case No: AFCS/00461/2023

Tribunal Venue: Birmingham (in person)

Decision Date: 28 January 2025

SUMMARY OF DECISION

WAR PENSIONS AND ARMED FORCES COMPENSATION (56)

56.5 Armed Forces Compensation Scheme

The First-tier Tribunal erred in law in failing to give adequate reasons for rejecting the appellant’s case that he had been “ordered” to have the dental treatment that had been one of the causes of his myofascial/atypical facial pain. A conclusion that the appellant had not been given an enforceable order to have the treatment would in any event not be sufficient to determine whether the appellant’s consenting to the treatment was ‘caused by service’ or not for the purposes of Article 8 of the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011 (SI 2011/517) (“the AFCS Order”). The assessment of whether or not something is ‘caused by service’ is more nuanced than simply whether the thing that causes the injury is a result of someone following an enforceable order or not. In this case, it required, first, adequate findings of fact to be made about what happened between the appellant and his officer in advance of that appointment. Secondly, taking full account of the guidance in JM v Secretary of State for Defence (AFCS) [2015] UKUT 332 (AAC), [2016] AACR 3, the Tribunal needed to consider whether or not the appellant’s consenting to undergo the treatment in the light of whatever happened between him and his officer was “caused by service”.

The Tribunal also erred in law in perversely concluding that there was “no evidence” that the stress that had contributed to the appellant’s pain was work-related. There was ample evidence in principle as to that causal link. The Tribunal needed to consider that evidence and provide adequate reasons for the conclusions it reached on the issue in the light of the evidence. The Tribunal would need when making that assessment at the remitted hearing to apply the guidance in JM that the AFCS Order provides for a no-fault scheme and there is no “thin skull” exclusionary rule, so that stress may be “caused by service” even if there has been no breach of duty by the forces or the injury is not one that would be suffered by someone of ordinary fortitude.

Please note the Summary of Decision is included for the convenience of readers. It does not form part of the decision. The Decision and Reasons of the judge follow.

DECISION