[2025] UKUT 289 (AAC)

Judge Monk gave permission to appeal on 31 May 2024, stating that

“3.

Our Tribunal recognised that the appeal raised an interesting question about whether the AFCS can apply to a claimant who, at the date of the injury was no longer in service. The test is not a temporal one – it does not require a beneficiary under the Scheme to be in service at the time of the injury but rather there has to be a causative link to service. I naturally consider that our Tribunal correctly identified and applied the statutory causative test. However, the test for giving permission to appeal to the Upper Tribunal is whether it is arguable the Tribunal erred in law, not whether I am satisfied that our Tribunal erred in law.

4.

The Secretary of State argues that the Appellant’s discharge broke the chain of causation and the fact that he was in MCTC and injured himself whilst there under service discipline does not amount to a service cause. It is submitted that our Tribunal misapplied JM v Secretary of State for Defence (AFCS) [2015] UKUT 332 (AAC).

5.

The Chamber would doubtless benefit from the Upper Tribunal’s guidance on the proper approach to Article 8. Whilst these particular circumstances may be rare clarification on whether a claimant has to be in service at the date of injury for the injury to be service caused would be welcome. I consider it is arguable therefore that our Tribunal erred in law.

6.

I note that it is also argued by the SoSD that both the crime and subsequent discharge broke the casual link. To be clear there was no argument before the Tribunal that his crime broke the causal link and insofar as the SOSD now seeks to advance some form of argument that a criminal act unrelated to the index incident, prevents there being a legitimate claim under the AFCS I do not give permission on that ground.”

On 21 August 2024 I extended time for the lodging of the notice of appeal until 17 July 2024 under rule 5(3)(a) of the Tribunal Procedure (Upper Tribunal) Rules (“the 2008 Rules”).

I noted that the issue for the appeal (identified in the judgment granting permission to appeal at [2]) was whether the Tribunal erred in law by holding that the Respondent’s injury was caused by service.

In the Observations sent to the Secretary of State on 14 November 2024, the Respondent indicated that the appeal was contested. At [4], the Respondent raised a specific issue, namely whether the Secretary of State was seeking to advance an argument for which the Tribunal had refused permission, namely whether his crime “broke the causal link”. The Respondent asked whether the Upper Tribunal was proposing to consider that argument and, if so, asked for an opportunity to respond to that point.

The Secretary of State anticipated that point in the Grounds of Appeal. At [11(1)] of the Grounds of Appeal, he took issue with the Tribunal’s conclusion that the Respondent’s service was the “cause” of “the offence committed in service”. That did not appear to be the same as an argument that the offence “broke the causal link”, which the Tribunal refused permission to argue. However, even if it were an argument for which he required permission, the Secretary of State submitted that the Upper Tribunal should grant permission to argue it because (i) the question for the Upper Tribunal was whether the Tribunal below erred in law in finding that the injury to the Respondent’s hand was caused by service (ii) in this appeal, it would be artificial, and potentially counter-productive, for the Upper Tribunal to be constrained to consider only parts of the Tribunal’s reasoning; proceeding in that way had the potential to reduce the value of the guidance to be given by the Upper Tribunal, from which the Tribunal said that it would benefit (judgment on permission to appeal at [6]) (iii) proceeding in that way need not cause any prejudice to the Respondent. The Secretary of State was content for the Respondent to be given a further opportunity to respond to any of the points made in the Ground of Appeal.

On 3 January 2025 I accepted the Secretary of State’s submissions and directed accordingly. To the extent that he did not already have permission to do so, he had permission to advance all of the arguments in the Grounds of Appeal dated 15 July 2024.

On 25 March 2025 I directed an oral hearing of the appeal, which I heard on the morning of 21 August 2025 when the Secretary of State was represented by Mr Will Hay of counsel. The Respondent appeared in person (although at earlier stages and at first instance he had been represented by the Royal British Legion). I reserved my decision.

For the Secretary of State Mr Hay submitted that the Tribunal erred in law in deciding that the injury was caused by service.