[2025] UKUT 289 (AAC)

Having set out the factual background to the appeal and the applicable law, the Tribunal considered the decisions in JM v Secretary of State for Defence (AFCS) [2015] UKUT 332 (AAC) at [80-96 and 118], NJ vSecretary of State for Defence (AFCS) [2018] UKUT 211 (AAC) at [22] and [24.3] and summarised the parties’ positions:

“26.

For the Secretary of State, Ms Gibson relied on the reasoning given for the decision and for upholding the decision at the post appeal reconsideration stage set out at paragraphs 21 and 23 above. In essence, a very simple proposition is advanced by the SSD that the injury has to occur in service for it to be service caused and the Respondent was not in service at the time of the injury, he was a civilian.

27.

In respect of the 3/9/21 decision which gave him an AFCS award for the overuse injury which also occurred post service and whilst he was at MCTC, Ms Gibson could only say that she ‘surmised’ that was a mistake because only verbal advice was given by the Medical adviser who had not seen the first hand evidence and the decision maker had simply relied on the EMIS records being continuous. She confirmed that decision would be revisited but was awaiting the outcome of this appeal.

28.

On behalf of the Respondent, Mr Evans pointed to the award for the overuse injury as confirmation that Article 8 was satisfied. He argued that the Respondent was still subject to the Armed Forces Act and having been recalled and court martialled and sentenced to custody at MCTC he was part of the Field Army Adjutant General Corps. Service provided the setting, he was on military land, he had to wear uniform and was subject to service discipline and the injury was therefore service related.”

The Tribunal concluded that

“29.

The Respondent’s appeal raises an interesting question about what is meant by ‘caused by service’ under Article 8 and whether the Scheme can apply to a veteran who, at the date when the injury occurs, is no longer in service? To answer this question, we have gone back to the basics of the statute and the case law from both the test of attributability under the Service Pensions Order and on service cause under the AFCS as both set out important principles to guide us.

30.

Article 8 provides that benefit can be payable to both serving and former members of the Armed Forces. But the injury has to be caused by service which Article 2 tells us means service as a member of the Armed forces.

31.

The SPO case law tells us that an injury which occurs in the course of service is not necessarily attributable to service (Horsfall v Minister of Pensions (1944) 1 WPAR 7) but can the reverse proposition be right – can an injury which did not occur in service be caused by service? It is accepted that whether a claimant suffers injury whilst on or off duty is not conclusive but there must be a sufficiently close causal connection between the injury and some factor of service. So, if the claimant is engaged on some activity in their personal sphere and the incident ‘did not occur in any way by reason of any duty or compulsion of service’ (Richards v the Minister of Pensions and National Insurance (1956) 5 WPAR 445) then it may not be attributable to service. It is not argued by the Secretary of State that the Respondent’s injury occurred whilst he was undertaking some activity of a personal nature and we consider below whether there was the element of duty or compulsion of service.

32.

Considering the first stage of the JM test what are the potential process causes of the events or processes which caused the injury? The immediate cause of the impact injury was the moving of the chairs at MCTC. That was an action carried out under instruction and was followed because the Respondent was acting under orders and was subject to service discipline. Moving up the chain of events – he was at MCTC because he was sentenced by Court Martial to serve his sentence there. His offence had been committed whilst he was in service and related to abuse of his position as a serving member of the Armed Forces. He was not tried or sentenced by the civilian criminal courts and he was only sentenced to serve his sentence at a military correctional institution by virtue of his service.

33.

We do not consider that any of those potential causes are too remote or uncertain to warrant disregarding them as relevant causes. So, we then have to consider whether the circumstances in which each operated were service or non-service causes. He was following an order to move furniture and that in our view, is properly categorised as by virtue of a compulsion of service.

34.

We consider that there is an unbroken chain of causation which leads from his service to his offence committed in service, to his sentencing by Court Martial to his being in the setting of MCTC all of which could only occur because he was in service, to his being compelled to follow an order to move furniture which caused the injury. If he had been detained in custody whilst still in service, so in A Company rather than D Company, we would have no hesitation in concluding that the injury was service caused. We do not accept the SSD’s contention that because no accident report was filled out the injury cannot be service caused. This is a no-fault scheme and it cannot be right that filling in the right form denotes whether something is service related or not.

35.

So, if the only distinction is that he had left service at the date of the injury, does that mean the injury is not caused by service? Applying the words of Article 8 there is no temporal limit placed on the injury – it does not have to occur in service but rather be caused by service. The fundamental test, as set out by Upper Tribunal Judge Mesher in EW v SSD [2011] UKUT 186 (AAC) Paragraph 16, is ‘In my view the key lies in the essential test of entitlement being in terms of causation by service, with service being the predominant cause. The test is not whether the claimant was to be regarded as in service (whatever that might mean) at the time of the incident causing the injury or as on or off duty. The test was reiterated by him and summarised thus in SV v SSD (AFCS) [2013] UKUT 541(AAC) paragraph 12 ‘the fundamental test under the AFCS Order 2005 was not whether the claimant was in service or was on duty at the time of the incident in question but whether the injury was caused and predominantly caused by service’ (our emphasis). That envisages the possibility that a claimant might not be in service at the time of the injury which is precisely the situation here.

36.

NJ tells us we can rely on the traditional ‘but for’ test and it follows from our conclusion above that we are satisfied that, without service, this injury would not have occurred. Had it not been for his service the Respondent would not have been at MCTC and would not have been obliged to follow the order to move the furniture and would not have injured his hand. There was a specific service compulsion/obligation, service not only provided the context and setting but the cause and given that every link in the chain of causation is service related we conclude that all the causes we have identified are service causes.

37.

We have not identified any non-service causes and so do not have to consider applying the predominancy test – this injury was caused by service and the appeal succeeds.”