[2025] UKUT 250 (AAC)

[The Appellant] relied on two alternative arguments. Firstly, he relied upon the specific commencement provisions for a GIP award contained in Article 64, which he contended overrode the more general provisions in Article 16. Secondly, he contended that upon a proper understanding, his date of discharge for the purposes of Article 16 was the date that he was discharged form mobilisation, i.e. 4 February 2010, that this date had passed and GIP could be backdated 6 years from the date of his successful request for a review.

On behalf of the SoS, Mr Ferguson contended that the commencement date for the award of GIP was governed by Article 16(10) and could not be before [the Appellant]’s service ends. That date had not yet been reached. There had been no break in service, [the Appellant] had been in the RNR since 2002 and remaining in the RNR was a requirement for service in the FTRS. He accepted that where a person had served full time in the services and had left service with an award including a GIP, and subsequently entered the reserves, that person could continue to receive the GIP: but that was not this situation. As [the Appellant] had never left service, Article 16(10) currently prevented the payment of the GIP.

[The Appellant] sought to distinguish his position from that of GE by pointing out that GE was seeking a GIP based on a conventional interim award by the SoS, whereas he was seeking a GIP based on an award made (by a tribunal) under Article 59. GE therefore was seeking backdating under Article 64 (2), whereas [the Appellant] was seeking backdating under Article 64(5)(d)) or 64(6). Although Article 64(5) was specifically qualified as ‘Subject to article 16(10)’, Article 64(6) was not so qualified. He argued that it should therefore be read as not subject to such a qualification, and therefore as overriding the general provision in Article 16(10). This, he contended, would be fair as a review under Article 59 was predicated on the SoS having made a mistake or having been in ignorance of a fact, and that the claimant should not be prejudiced by such mistake or ignorance. In his case, had he known that the consequence of remaining in the RNR would have been to delay the start of the payment of a GIP, he would doubtless have considered leaving the RNR.

A claimant is certainly entitled to expect that the AFCS will be administered fairly. This is a requirement of good public administration and also of public or administrative law. However, individual concepts of fairness cannot take precedence over the terms of the scheme. It is the correct meaning of the terms of the scheme that must be decided. In this respect we were bound by, and accepted, the reasons given by the Upper Tribunal in paragraph 30 of the decision in GE.

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. But Article 64(2) (which applies where the decision relied upon was not a review decision) similarly is not qualified by such words. In GE the Upper Tribunal nevertheless found that the clear terms of Article 16(10) took precedence, and we can see no good reason to distinguish this case on the basis that Article 64(6) applies.

Although we are conscious that as a matter of statutory interpretation, specific provisions override general ones, that is subject to the canon that provisions within a single instrument should be interpreted in a harmonious way. The manifest intention and meaning of the AFCS taken as a whole is that a GIP cannot commence before the date that service ends, and (subject to that) a GIP is payable from the date identified within Article 64.

That leaves us to consider [the Appellant]’s second argument, that his service ended when he was discharged from mobilisation, and therefore payment of his GIP is not precluded by Article 16(10). Again, we are bound by the decision of the Upper Tribunal, with which we also agree. [The Appellant] had no break in service. Article 2(1) defines service as including service in the armed forces and the reserve forces. At no time has [the Appellant] ceased to serve in the armed forces and reserve forces. Although some standard form letters referred to his discharge, that should be understood (and would have been understood) as his discharge from mobilisation, and not to affect his continuing membership of the reserve forces. This issue was decided contrary to [the Appellant]’s arguments in paragraph 32 of GE [175 reverse].

For these reasons we felt bound to conclude that Article 16(10) of the AFCS operates to defer the commencement date of [the Appellant]’s GIP entitlement until he leaves service, probably in the Spring of 2025.

It is unlikely that the First-tier Tribunal erred in law given the general provisions of the Scheme relating to the effective date of the GIP. However, the Tribunal followed the Upper Tribunal decision GE v Secretary of State for Defence [2024] UKUT 92 (AAC), which specifically does not deal with Article 64(6) (see paragraph 6 of the Upper Tribunal’s decision).

Therefore, guidance is still required from the Upper Tribunal as to the effective date of GIP when entitlement arises due to an award being reviewed under Article 59.

Permission to appeal is granted to obtain guidance on the proper approach to Article 64(6).