[2025] UKUT 250 (AAC)

Anticipating my conclusion, I find that neither of the Appellant’s grounds of appeal is made out. My reasons are as follow.

As to the first ground of appeal, that GE was not binding on the FTT, the Appellant acknowledged that there were some similarities between the circumstances in GE and the facts of his own case but stressed that there were also important differences. Thus, one of the Appellant’s principal arguments was that the FTT had erred in law by stating (at paragraph [17] of its reasons) that it was bound by GE – this was not the case, he contended, as GE was concerned with the application of Articles 64(2)(b) and 64(5)(c) whereas his case turned on the application of Articles 59 and 64(6). It is certainly true that the judgment in GE explicitly excluded consideration of cases involving Article 59 (see paragraph [6] of GE – and indeed the FTT in GE had itself found that the Article 59 criteria were not met on the facts of that case: see paragraph [1] of GE).

However, it may be noted that the FTT did not express itself quite so baldly to the effect that it was always bound to follow GE. Rather, the FTT observed (correctly) that it was “legally bound to follow this decision to the extent that it decided the issues of law that arose in [the Appellant’s] appeal” (emphasis added). True, a narrow reading of the ratio decidendi of GE – confining the decision to the particular circumstances of cases involving Articles 64(2)(b) and 64(5)(c) – would support the Appellant’s argument. However, such a narrow reading is wholly untenable. This is because the reasoning in Upper Tribunal Judge Wright’s decision in GE was expressed in more general terms. For example (see paragraph 26, with emphasis added):

Furthermore, Judge Wright observed that “If the Guaranteed Income Payment were to be payable before the end of service, it is unclear what the statutory basis would be for calculating the Guaranteed Income Payment for the period before the service in fact ends” (paragraph 27). The same observation applies with equal force in the context of the present appeal. Regulation 24 defines the ‘Amount of guaranteed income payment’ and is referenced in the definition of a GIP at Article 16(7), which provides that the GIP “is to be determined in accordance with article 24”. Yet Article 24 assumes the base salary is the veteran’s salary as at the end of service (up-rated as and if necessary). There is no provision for an individual’s salary in service to be used in calculating the “relevant salary” (see Article 24(6)(b)). The Appellant valiantly sought to counter this argument by advancing several alternative methodologies that could, and fairly he argued, be used for assessing salary for the purposes of computing the GIP. However, the very fact that he was driven to make such submissions throws into stark relief the very difficulty that he faced – namely, that the GIP methodology is premised on using the individual’s salary at the end of service and at no date before.

I therefore conclude that the FTT correctly directed itself that the principles in GE applied with equal force in the context of the Appellant’s case. In particular, the FTT was bound to accept the Upper Tribunal’s ruling that the “clear meaning” of the legislative wording was such that general arguments about fairness did not assist in the process of statutory construction (see GE at paragraph 30 and the FTT’s decision at paragraph 20). Moreover, as the FTT summarised their conclusion:

This leads on to the second ground of appeal, concerning the inter-relationship between the general rule in Article 16(10) and the specific provision made for Article 59 review cases in Article 64(6). In summary, the Appellant submitted that Article 16(10) was a general but not universal provision and as such there could be circumstances where it did not apply. He argued that, by contrast to Article 16(10), Article 64(6) was a specific rule stipulating the start date for a GIP award in a case arising from an Article 59 review. Furthermore, he contended, Article 64(6) did not state it was subject to either Article 64(5) or Article 16(10). Accordingly, the Appellant submitted, the express provision in Article 64(6) for six-year backdating in Article 59 cases took precedence over the general principle in Article 16(10) that a GIP was only payable from the end of service.

However, the difficulty with this line of argument is that it involves reading Article 64(6) in isolation and so out of context. The starting point in understanding Article 64 is Article 64(2). This provides that an award of GIP becomes payable “where a member is awarded injury benefit which includes an award of guaranteed income payment, on the day after the day on which the member's service ends” (see Article 64(2)(b)). That rule is made expressly “subject to paragraphs (5) and (6)”, according to the opening words of Article 64(2). Next, Article 64(5) makes provision for four sets of circumstances where an award has been revised under a series of different powers. These relate to Article 53 (Article 64(5)(a)), 55 (Article 64(5)(b)), 56/57 (Article 64(5)(c)) and 59 (Article 64(5)(d)). (I note in passing that the word ‘article’ in the first line of Article 64(5)(d) has been omitted in error from the original Queen’s Printer version of the AFCS Order 2011, but the meaning is clear enough).

Article 64(5)(d)(i) lays down the general rule that an award revised under Article 59 becomes payable “on the date the application for review is sent to the Secretary of State”. Furthermore, as the Appellant rightly points out, Article 64(5)(d) is expressly made “subject to paragraph (6)”. Article 64(6) in turn provides that where the result of an Article 59 review is to award or increase the amount of benefit awarded, any GIP “becomes payable from the beginning of the period starting 6 years ̶ (a) before the date on which the application for review is sent to the Secretary of State…”. However, it is wrong to read Article 64(5)(d) as qualified only by paragraph (6). Each of the four review scenarios contemplated in Article 64(5)(a) to (d) inclusive, and so including Article 64(5)(d), is “subject to article 16(10)”, as stipulated by the opening words of Article 64(5). The Appellant’s reading of the relevant statutory provisions therefore involves reading Article 64(6) in isolation and out of context. In short, Article 64(6) qualifies Article 64(5)(d) but sub-paragraph (d) – just like sub-paragraphs (5)(a), (b) and (c) – is subject at all times to the general rule in Article 16(10). It follows that Article 16(10) in effect overrides Article 64(6) rather than the other way round. I therefore agree with the Respondent’s submission that, as a matter of statutory construction, the phrase “subject to article 16(10)” applies to the whole of Article 64(5)(d), so the provision that enables backdating for six years (in Article 64(6)) can only apply to the extent that it does not pre-date the last day of service.

To digress for a moment, the FTT stated that “It is difficult to understand why Article 64(5) is qualified by the words ‘subject to Article 16(10)’, but Article 64(6) is not” (paragraph [21]). However, on reflection it is not so difficult to understand at all. This is because Article 64(6) is not a standalone provision – it operates to carve out an exception to the provision in Article 64(5)(d) but remains “subject to Article 16(10)” as per the instruction in the opening words to Article 64(5), so including that qualification in Article 64(6) as well would be mere surplusage. The same point can be reinforced by a drafting hypothetical that proceeds as follows. Article 64(6) is a qualification to Article 64(5)(d). It would have been perfectly open to the draftsperson to omit the proviso “subject to paragraph (6)” at the commencement of Article 64(5)(d) and instead to incorporate the substance of the provision now contained in Article 64(6) entirely within the text of Article 64(5)(d) itself (although the drafting would undoubtedly have become somewhat unwieldy). If that course had been taken, there could be no argument but that the six-year backdating rule was subject to Article 16(10) in just the same way as was each of the situations covered by Article 64(5)(a)-(c) inclusive. The happenstance of the choice of legislative drafting technique in such circumstances could and should not result in a different outcome of the process of statutory construction.

I have not overlooked the Appellant’s arguments that the effect of the sequence of events relating to his AFCS claim was that he was not in a position to make an informed decision (particularly as to the financial implications of that choice) back in 2010 or 2011 about whether to remain in service or not. In short, he argued that he had been financially disadvantaged because of the way that the GIP is calculated according to the Table of Factors in Schedule 4 of the AFCS Order 2011. The Appellant further submitted that it was unconscionable that Veterans Uk should in effect be able to make a financial saving on the costs of GIP because of their own mistakes and to the detriment of the claimant. While one can sympathise with the Appellant’s predicament, and I do not underestimate the stress involved in a long-running series of Tribunal hearings, the short answer to that submission is, as Judge Wright observed in GE, that “Given the clear meaning of the wording in the statutory scheme, I do not consider general arguments about fairness assist in construing that wording” (paragraph 30).