[2025] UKUT 289 (AAC)

The factual background to the dispute is not in issue and I can take it from the decision of the Tribunal, as set out in its statement of reasons dated 21 March 2024, anonymising the Respondent’s name where it appears in the narrative:

“2.

The Respondent served in the Royal Air Force from January 2008 to 29 May 2020. He was discharged at his request. He injured his hand on 6 November 202[0] whilst deemed no longer ‘in service’ but whilst he was serving a custodial sentence at the Military Corrective Training Centre (MCTC). So, the question for us to determine was whether the injury could be said to have been caused by service.

...

5.

The Respondent served in the Royal Air Force from 23 January 2008 until 29 May 2020. He had completed his 12 years’ engagement and was still serving when he took premature voluntary release; he gave short notice and was discharged. He retains a Reserve liability for 6 years from the date his Regular service ended but has not been recalled and thinks it very unlikely that he will be. Prior to his discharge, court martial proceedings had started against him and on 15 October 2020 he was Court Martialled. He pleaded guilty to the charge of ‘fraud by abuse of position’ and was sentenced to an immediate custodial sentence. The extract from the sentencing remarks stated

“We considered very carefully whether we could dispose of this matter other than by way of an immediate custodial sentence but unfortunately on the evidence presented to us we do not consider there to be sufficient grounds such as to justify a community disposal nor do we consider there to be a basis which could properly lead us to the conclusion that a suspended sentence would be appropriate in this case. We fully acknowledge the impact that custody will inevitably have upon you and we have taken on board what we have already described as very positive character references but having considered the matter with care we have concluded that this offence Is so serious that only an immediate custodial sentence can be justified And the least possible sentence we can impose, having regard to the seriousness of these offences, adopting a proportional approach and applying the principle of totality, is one of 27 months custody on each of charges one, two and three each to run concurrently with another.

Taking into account Your guilty plea and giving you full credit for the same we reduce that to 18 months and because it is less than two years, we are going to direct the sentence will be served In MCTC Colchester ...

As I stated, this sentence will be served in MCTC Colchester where, aside from being a benign environment than that that you would otherwise encounter in the civilian prison system, it has in place robust systems for dealing with those who suffer from mental health issues and overall we do consider that there is some limited scope here for rehabilitation, which is an important principle in sentencing. But the Board is firmly of the view that this would be best served by you being given the opportunity to effectively reboot and press the reset button Whilst under close supervision and with the support of the team in Colchester.”

The sentence passed did not dismiss the Respondent from service.

6.

The Military Corrective Training Centre (MCTC) is located at Colchester, Essex. The guide explaining the role of MCTC states:

“The principal function of MCTC is to detain personnel both male and female, of the three services and civilians subject to service discipline acts, in accordance with the service custody and service of relevant sentencing rules 2009. The MCTC can hold up to 284 service personnel who have been sentenced to periods of detention up to two years or those in safe custody. There are three categories of detainee:

A Company – Service Personnel under Sentence (DUS) serving a sentence on completion of which they will remain in the Services …

D company - Service Personnel under Sentence (DUS) serving a sentence on completion of which they will be discharged from the Services.

Service Custody Platoon (SCP) - Safe Custody Personnel (SCP)

• Whilst under investigation.

• Awaiting trial

• Awaiting transfer to HM Prison, having been sentences to imprisonment by Courts-Martial.

• DUS undergoing periods of punishment (Close Confinement) as awarded by the Commandant (Comdt) MCTC.

FUNCTIONS

D Company

To instruct and guide DUS in order that they develop their potential for self-sufficiency and responsible citizenship, by providing the appropriate rehabilitation training as directed by the I of ME (A) by:

- Trade training courses

- Project work in the local and wider community

- Farm Husbandry

- Resettlement

- Literacy and numeracy remediation as required

- Vocational training.

7.

MCTC falls under the jurisdiction of the Provost Marshal (Army) in Army HQ and sits under the Field army. It is staffed by the military and all staff wear uniform.

8.

The Respondent was allocated to D Company as a DUS – a detainee under sentence. It was accepted that, in accordance with the Armed Forces Act 2006, he was a Civilian Subject to Service Discipline (CSSD). That meant that whilst at MCTC he was subject to the full Armed Forces Discipline standards and sanctions. He had to obey orders and any infringement would be punished. In common with all DUS, his period of detention did not count towards a period of service so did not add on to his 12 years 4 months already served and was not treated as pensionable service.

9.

Upon being sentenced on 15 October 2020, he was immediately detained, he was kept in a cell overnight at the Army Camp at Bulford where his Court Martial had taken place. He was required to report to MCTC in uniform and so had to wait whilst RAF Odiham, his former base, provided him with uniform and kit. He was taken to MCTC on 16 October where he started his sentence. The Final report from MCTC confirmed both those dates and noted his release date as 30 July 2021. He earned the maximum possible remission for very good conduct and attitude during his sentence. His details were recorded against his Service Number which he confirmed was the same as when he had been serving.

10.

The Final Report recorded [94]

“[the Respondent] is already discharged from HM Forces and was sentenced to 18 Months detention at Court Martial for three charges of fraud by abuse of position. Upon admission to MCTC he received instructions on the establishment and orders for all categories of detainees. He was placed in D Company, for those discharged from the Service post detention. During his employment in D Company, he was subject to daily kit inspections, offered full welfare and medical support, access to MCTC farm as well as the Education Centre.

11.

He was required to wear his uniform at all times. He was told on his first day at MCTC that he was required to follow standing orders. He described being in uniform and being ordered to do something by someone else in uniform which was exactly the same as his experience whilst in service. He understood that as a civilian subject to service discipline (CSSD), he, alongside all those serving sentences at MCTC, were subject to military discipline. Any infringement was subject to the full range of Service disciplinary sanctions – he told us that any transgression would start with a penalty at the lowest end with being ‘red penned’ and being unable to earn remission for that week up to the potential for a further Court Martial.

12.

For the first few weeks of his sentence, he was given a period to settle in an could not earn remission but then he described his treatment as the same as being back in basic training. He described his daily routine as having daily bed and kit inspections exactly as would have been the case whilst serving. He was required to present in uniform with his kit and bed presented as it was when he was in the RAF. At 8 am the Duty Sergeant would come to carry out an inspection and they would all have to come to attention.

13.

The Respondent’s Electronic Service Medical Records (EMIS) continued to be completed post his discharge and appear to be unbroken. There are two entries for 26 May 2020, 3 days before discharge, which noted that he was about to leave service and then entries for June, July and August which noted some follow up contact about his mental health issues. When he transferred to MCTC he underwent a new patient screen at the Medical Reception Station (MRS) at Colchester on 19 October 2020 recorded on his EMIS by the Lieutenant Corporal he saw. It was noted that he was ‘already a civilian’ and needed his fitness for duties reviewing.

14.

Whilst at MCTC the Respondent was on what was called a ‘light duty chit’ which meant that because of various medical issues he was excused certain duties; for the majority of his time there he was not required to march and did not do group Physical training but did his own routine in the gym. He would be given occasional details to move equipment/furniture, to sweep up and to clean and he would volunteer for extra jobs as he was keen to earn points for remission and did not want to be seen as a shirker.

15.

The injury which is the subject of the appeal occurred on Friday 6 November 2020. On Fridays his work usually finished at lunchtime. They had been on parade and were instructed that 4 or 5 DUS were required to move tables and chairs from the table tennis room to an empty bedroom. He along with 3 or 4 others were marched to the room and under supervision of an Orderly were directed to move the tables and chairs. He moved a table and then came back to move a stack of chairs, as he reached down to pick them up, he misjudged the depth and his little finger and ring finger on his left hand impacted on the metal frame of one of the chairs. He described feeling as if he had ‘crunched’ his left hand and being in immediate and excruciating pain.

16.

As the incident happened on a Friday afternoon, medical cover was relatively light as the GP does not routinely attend MCTC Medical Centre on Friday afternoons and he was not considered to be in need of emergency treatment. He took painkillers over the weekend and then went to see the doctor at the Medical Centre first thing on the Monday morning, 9 November. He was marked as fit for limited duties for 14 days. He was sent to hospital for an Xray, accompanied by 2 members of uniformed staff and was, in effect, guarded whilst there. It was diagnosed as a soft tissue injury. He was seen again the next day by the doctor at the medical centre and the EMIS entry noted that his left 4^th and 5^th fingers were strapped. By 19 [November] he was advised that even with the hand injury he could go to the gym and do bike/trainer work and low impact cardiovascular activity.

17.

The Respondent made a claim for another injury, his Achilles tendon, which he said occurred during his time at MCTC. We did not have the EMIS records for that injury as it apparently occurred in May 2021 but in a decision dated 3 September 2021 the Secretary of State accepted that ‘on the balance of probabilities that the pain in (your) left calcaneal bursa was wholly caused by service.’ He was made an award at Table 9 item 35A, Level 15 on the AFCS Tariff. The Medical Adviser’s reasons are not complete in the version with which we have been provided as the Respondent supplied them to the Tribunal on the last occasion and, somewhat surprisingly, Veterans UK have chosen not to provide the complete paperwork from that decision. But from this we see that the facts established by the Secretary of State are all taken from the EMIS and refer to entries from 18 May 2021 to 21 July 2021, the period whilst the Respondent was still serving his sentence at MCTC.

18.

The decision maker sought verbal medical advice and mentions only the extracts from the EMIS records as showing that although he was thought at an early stage to have Achilles tendonitis on examination the main pain was from the calcaneal bursa. The Medical Adviser considered it to be an overuse type injury and that is the award that is made ‘Overuse injury of foot or heel which has not required operative treatment.’

19.

The Respondent made a claim for his left hand/arm injury on 18 January 2022. He described the injury as occurring on 6 November 2020 when he was ‘asked to move furniture within MCTC during sentence there.’ In the further information section he set out the details of how the injury occurred which are consistent with his oral evidence to the Tribunal.

20.

On 24 February 2022 the Secretary of State made a decision to reject the claim and stated, ‘after looking at all of the appropriate evidence you are not entitled to compensation under the Scheme as your injury/illness is not due to Service.’ The reasons for the Decision were stated as ‘You have claimed for an injury to your left arm/hand which you state occurred on 6 November 2020 whilst moving furniture during your sentence at MCTC Colchester. CAPS record confirms you were discharged from the Army on 29 May 2020. Electronic service medical records confirm your injury occurred in November 2020. The injury to your hand occurred after you were discharged from the Army (sic) whilst incarcerated at MCTC. The Secretary of State does not accept on the balance of probabilities that service wholly or partly caused the injury to your left hand.’

21.

The Respondent appealed that decision by an appeal form received at Veterans UK on 9 March 2022. He stated on his appeal that firstly he had had a successful claim for his Achilles dated 3 September 2021 and was unclear as to why the claim for his hand had been treated differently, Secondly, he stated that ‘MCTC is a fully uniformed service establishment and I myself was in uniform for the entirety of my time there. If the service isn’t responsible for this injury, then who is? There weren’t any civilian staff members dictating to me to move furniture around and everything else for that matter.’

22.

There was a reconsideration decision made on 19 May 2023 which maintained the original decision. The reasons for that were given as follows:

‘We are unable to revise the existing decision which rejected impact injury left hand/arm as not caused by service on or after 6th April 2005.

Your initial claim attributed your impact injury left hand/arm to moving furniture on 6 November 2020 whilst under sentence at MCTC. All documents and electronic records available to us state that you were discharged from service on 29 May 2020 ... MCTC also confirmed that you were in D Company 9 those to be released to civilian life post sentence), you were classified as a CSSD (a civilian subject to service discipline and were bound by the Armed Forces Act 2006. The reason for your discharge is consistently recorded as PVR/own request.

An individual has to be a member of the forces at the time of the injury in order to be eligible for an injury award Article 8 of AFCS provides that benefits are payable to a member/former member by reason of an injury caused (wholly or partly) by service. Article 2 defines “service” as “service as a member of the forces” and “forces” as the “armed forces and reserve forces”. Accordingly, if an injury occurs after service has ended, it cannot be caused by service and AFCS therefore does not cover it.

We note your contentions that your injury was caused because whilst you were under sentence you were required to undertake training and follow military orders. However, MCTC have confirmed that there were no MoD 510 accident Reporting forms submitted for the impact injury left hand/arm. Whilst there is evidence of a hand injury in the electronic medical record, there is no reports as to how this injury happened and no MoD 510. On the balance of probabilities we are satisfied that we would not be accepting a service cause even if we were able to consider your hand/arm injury under AFCS.’

They go on to state that, in the light of their decision, they will be reviewing the award for the calcaneal bursa.”