Upper Tribunal Administrative Appeals Chamber

[2025] UKUT 037 (AAC)

Fecha: 15-Ene-2025

The legal framework

The legal framework

Schedule 3 to the 2011 Order includes nine Tables which list the categories of injury for which compensation may be awarded under the AFCS, from Table 1 (Burns) through to Table 9 (Musculoskeletal disorders). The Tables identify different levels of severity of category of injury, in descending order (so a Level 8 injury is more serious than a Level 10 injury). For each level, the Table relies upon a short “Description of injury and its effects” (known as the “descriptor”). Each level then provides for a tariff lump sum payment for that descriptor or “Item”, the amount of which varies significantly between different levels of injury (as set out in Table 10 of Schedule 4; see also Article 16(2)). Thus, Table 3 of Schedule 3 to the 2011 Order, together with its footnotes, provides as follows for the purpose of compensation for mental disorders:

Table 3 - Mental disorders(*)

Item	Column (a)	Column (b)
	Level	*Description of injury and its effects (“descriptor”)*

A1	4	Permanent mental disorder causing very severe functional limitation or restriction^(aa)
1	6	Permanent mental disorder, causing severe functional limitation or restriction^(a)
2	8	Permanent mental disorder, causing moderate functional limitation or restriction^(b)
3	10	Mental disorder, causing functional limitation or restriction, which has continued, or is expected to continue for 5 years
4	12	Mental disorder, which has caused, or is expected to cause functional limitation or restriction at 2 years, from which the claimant has made, or is expected to make, a substantial recovery within 5 years
5	13	Mental disorder, which has caused, or is expected to cause, functional limitation or restriction at 26 weeks, from which the claimant has made, or is expected to make, a substantial recovery within 2 years
6	14	Mental disorder, which has caused or is expected to cause, functional limitation or restriction at 6 weeks, from which the claimant has made, or is expected to make, a substantial recovery within 26 weeks

(*) In assessing functional limitation or restriction in accordance with article 5(6) account is to be taken of the claimant’s psychological, social and occupational function.

(*) Mental disorders must be diagnosed by a clinical psychologist or psychiatrist at consultant grade.

^(aa)Functional limitation or restriction is very severe where the claimant’s residual functional impairment after undertaking adequate courses of best practice treatment, including specialist tertiary interventions, is judged by the senior treating consultant psychiatrist to remain incompatible with any paid employment until state pension age.

^(a)

Functional limitation or restriction is severe where the claimant is unable to undertake work appropriate to experience, qualifications and skills at the time of onset of the illness and over time able to work only in less demanding.jobs.

^(b)

Functional limitation or restriction is moderate where the claimant is unable to undertake work appropriate to experience, qualifications and skills at the time of onset of the illness but able to work regularly in a less demanding job.

There are several other provisions of particular note in the 2011 Order. Article 16(1) provides as follows:

16.

—(1) Subject to articles 25 and 26—

(a)

benefit for injury is payable only in respect of an injury for which there is a descriptor;

(b)

where an injury may be described by more than one descriptor, the descriptor is that which best describes the injury and its effects for which benefit has been claimed; and

(c)

more than one injury may be described by one descriptor.

The proper application of Article 16 was considered by the Court of Appeal in Secretary of State for Defence v Duncan and McWilliams [2009] EWCA Civ 1043 (especially at [56] and [57]). As the Court stated, it “requires a careful analysis of the facts and then a consideration of which descriptor is the most appropriate”.

In addition, Table 3 must be read in the context of Article 5, which provides further interpretative provisions for descriptors. Thus, Article 5(3) provides that:

(3)

The term “functional limitation or restriction” in relation to a descriptor means that, as a result of an impairment arising from the primary injury or its effects, a person—

(a)

has difficulty in executing a task or action; or

(b)

is required to avoid a task or action because of the risk of recurrence, delayed recovery, or injury to self or others.

10.

Furthermore, Article 5(6) specifies that:

(6)

Functional limitation or restriction is to be assessed by—

(a)

taking account of the primary injury and its effects; and

(b)

making a comparison between the limitation and restriction of the claimant and the capacity of a healthy person of the same age and sex who is not injured or suffering a health condition.

11.

Finally, and most relevantly, Article 5(7)(a) provides as follows:

(7)

Functional limitation or restriction is —

(a)

“permanent” where following appropriate clinical management of adequate duration—

(i)

an injury has reached steady or stable state at maximum medical improvement; and

(ii)

no further improvement is expected.

12.

It will be noted that Article 5(7)(a) defines “permanent” where it is used in the context of a “functional limitation or restriction” being permanent rather than in the context of a “permanent mental disorder”. That said, there is undoubtedly a degree of overlap in the respective meanings, as identified in JH v Secretary of State for Defence (AFCS) [2024] UKUT 191 (AAC):

23.

Both counsel confirmed in the course of the Upper Tribunal proceedings that neither party sought to challenge the Tribunal’s approach to the meaning of “permanent” for the purpose of Table 3. This agreed approach is relevant to understanding the context of the appeal. The Tribunal declined to adopt a prescriptive definition of the term “permanent” (as in “permanent mental disorder”, in effect the gateway to an award at levels 4, 6 or 8, namely Items A1, 1 and 2) but expressed the following views.

24.

First, the dictionary definition of “permanent” implied something that lasted indefinitely without change, whereas mental disorders “commonly change as people respond to treatment and medication”. The dictionary definition, applied in isolation, was therefore too “simplistic” (paragraph 54).

25.

Second, the definition of “permanent” in Article 5(7)(a) of the 2011 Order was not directly applicable, because that definition governed the meaning of “permanent functional limitation or restriction” in Table 3 and not the permanence or otherwise of the mental disorder itself (paragraph 50).

26.

Third, however, the Tribunal considered that the Article 5(7)(a) definition provided a “useful guide”, noting that “It stands to reason that if there has not been appropriate clinical management of the mental disorder, maximum medical improvement has [not] been reached, and that common treatment options are available but have not been undertaken, then those are relevant factors in deciding if a mental disorder is permanent or not” (paragraph 54).