[2025] UKUT 289 (AAC)

The Respondent served in the Royal Air Force from January 2008 to 29 May 2020. He was then discharged from the service at his own request. Thereafter he was not a member of the forces, whether the armed forces or the reserve forces. He injured his hand on 6 November 2020 when he was no longer a member of the forces, but was instead a civilian subject to service discipline. When the injury occurred, some 5 months after he ceased to be a member of the forces, he was serving a custodial sentence, as a civilian subject to service discipline, at the Military Corrective Training Centre (MCTC). In those circumstances the injury which he sustained, months after he had ceased to be a member of the forces, could not be said to have been caused by service, since by article 8(1) of AFCS benefit is payable to or in respect of a member (or former member) of the forces by reason of an injury which was caused by service after the relevant date and by article 2 “service” means service as a member of the forces, which the Respondent had not been for more than 5 months before the injury.

The point is a short one, but it is conclusive of the appeal, which must succeed. There is no point in remitting the matter for rehearing since the facts are not in dispute and I can decide the matter for myself. The decision of the Tribunal is therefore set aside and remade. The injury to the Respondent’s left hand was not caused by service.

Nothing in the decisions in JM or NJ militates against that conclusion. JM was a case of bullying. In the context of the investigation of an incident in which the claimant was the aggressor, he complained that he had been the victim of a campaign of bullying since February 2008 by other members of his troop on Operation Telic 12 and in barracks in Gütersloh. It was in that context that the three-judge panel made the remarks about causation cited by the Tribunal in the instant case, but the points which the panel was making were that

the principles in the old case law relating to “attributable to service” remained relevant because they gave guidance on the link which was required between the process cause and service to make it a service cause and so to satisfy the test that the injury be caused wholly or partly by service

they provided assistance in the exercise of categorisation of process causes which was involved

however and importantly, they did not address the new “predominacy test” under the AFCS