Upper Tribunal (Administrative Appeals Chamber), October 31, 2013,  UKUT 541 (AAC)
|Resolution Date:||October 31, 2013|
|Issuing Organization:||Upper Tribunal (Administrative Appeals Chamber)|
|Actores:||SV v Secretary of State Defence (AFCS)|
SV v Secretary of State for Defence (AFCS)  UKUT 0541 (AAC)
DECISION OF THE UPPER TRIBUNAL
ADMINISTRATIVE APPEALS CHAMBER
The claimant's appeal to the Upper Tribunal is allowed. The decision of the Liskeard First-tier Tribunal sitting on 15 June 2012 involved errors on points of law, for the reasons given below, and is set aside. The case is remitted to a tribunal within the War Pensions and Armed Forces Compensation Chamber of the First-tier Tribunal for reconsideration in accordance with the directions given in paragraph 41 below and further procedural directions to be given by a First-tier Tribunal judge (Tribunals, Courts and Enforcement Act 2007, section 12(2)(b)(i)).
There was an oral hearing of this appeal on 24 October 2013. The claimant attended, accompanied by, among others, Keith Meakin of the British Limbless Ex-Servicemen's Association. He was represented by Michael Rawlinson QC and Charlotte Law of counsel, instructed by Irwin Mitchell LLP solicitors. The Secretary of State for Defence was represented by Galina Ward of counsel, instructed by the Appeals Team of the Service Personnel & Veterans Agency. I am grateful to all present for their constructive assistance.
This case raises some difficult issues on the construction of the Armed Forces and Reserve Forces (Compensation Scheme) Order 2005 (the AFCS Order 2005), as amended. The issues as to when injury is caused wholly or partly by service and, in particular, the effect of article 7(2) in providing that ``where injury is not wholly caused by service, benefit is only payable if service is the predominant cause of the injury'' also arise under the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011 (the AFCS Order 2011). The issues as to the meaning of article 10(1) and (3) on adventurous training courses or expeditions will not arise in the same form under article 11 of the AFCS Order 2011, but are nonetheless important in relation to claims falling under the 2005 scheme. This decision gives more hard-edged guidance on the second group of issues than the first, where much has to be decided case by case according to the individual circumstances. There was a substantial level of agreement about the statutory framework within which decisions have to be made and that the tribunal of 15 June 2012 had gone wrong in law in ignoring that framework, but not about the outcome of this appeal.
The relevant legislation
In relation to article 7(2) of the AFCS Order 2005, set out in substance above, it should be noted that in article 2 ``predominant'' is defined as ``more than 50 per cent''. The relevant parts of article 10, as in force at the date of claim and of decision, are as follows:
``Injury and death - inclusions
--(1) Benefit is payable in accordance with this Order to or in respect of a person by reason of an injury sustained or worsened or death occurring, while participating in--
(a) sporting activities as a player, a referee, an organiser or a representative of a particular sport or sporting organisation where--
(i) the Secretary of State has approved the sport as being a sport which enhances the fitness, initiative and endurance of members of the forces, and
(ii) the relevant Service has recognised the particular event and the organisation and training for it;
(b) activities approved by the relevant Service which are undertaken for the purpose of meeting and maintaining the physical standards required of members of the forces; or
(c) adventurous training courses or adventurous expeditions approved by the relevant Service;
in each case where service is the predominant cause of the injury, or the worsening of the injury, or of death.
(2) [approval of sporting activities].
(3) The activities referred to in paragraph (1) do not include social events or free time associated with those activities.
(4) and (5) [travelling]
(6) [terrorism, warlike activities and emergencies].
(7) This article does not apply unless the cause of the injury, the worsening of the injury, or the cause of the death, occurred on or after 6th April 2005.''
The factual background
The claimant was born on 18 September 1987. He entered service with the Royal Marines on 10 November 2008 and is still in service. The incident giving rise to the AFCS claim occurred on 23 January 2010, when the claimant was swimming off a beach in Gran Canaria. After wading into the water, he did a shallow dive and made a direct impact with a sandbank just below the surface of which he had been unaware. He suffered very serious life-changing injuries. As claimed they were fracture of C4 and C5, prolapsed discs C5 and C6 and incomplete tetraplegia. The tribunal in its decision noted those introductory circumstances and made these more detailed findings:
``8. We heard oral evidence from the [claimant]. We had the benefit of seeing and listening to him carefully. We have no doubt that he gave a truthful account of his circumstances. We also listened carefully to his representative's [Mr Meakin's] submissions. [The claimant] told us that:
(a) He was ordered to participate in adventure training in Gran Canaria in January 2010. He told us that he had said he did not want to go and that there were two other `lads' who were prepared to go in his place.
(b) He told us that he received no briefings or instructions prior to attending the adventure training activity and received no joining instructions. He told us that he had to ask a colleague at to what kit to take.
(c) He told us that he received no documentation or other instructions with advice to take out personal insurance and that he had never heard of any of `his mates' refer to this either.
(d) He told us that the lack of facilities on board ship meant that ablutions were generally done in the sea. Further that exercise, e.g. swimming, was in order to maintain high levels of physical fitness as required by the service.
In addition to the oral evidence, we have considered all of the documentation before us and all submissions made by both representatives.
There is no dispute between the parties as to how the accident occurred. Both parties agree that the accident happened whilst [the claimant] was with RM 45 Commando in Gran Canaria prior to leaving for Puerto Rico. The Training Craft ``Sarie Marais of Plymouth'' had pulled alongside in Porto Morgan on 22nd January 2010 and was due to leave Gran Canaria at approximately 1 p.m. on 23rd January 2010 taking a planned transit to Puerto Rico.
On the day of the accident [the claimant] told us that at approximately 10 a.m., whilst the skipper of the boat was attending local shops to but victuals, he and two colleagues had taken the opportunity to go swimming. He told us that prior to the skipper's departure to the shops he could not recall whether the skipper had issued any instructions or orders. He told us that he and his colleagues took the opportunity to go for a swim to aid both personal cleanliness and also to maintain some physical fitness.''
It is evident that, although the tribunal framed most of those findings in terms of recording the claimant's oral evidence, all of that evidence was accepted and found as fact. I shall come back later to some of the other evidence before the tribunal.
The decisions on the AFCS claim
The AFCS claim was received on 16 September 2010. The letter notifying the claimant of the decision that he was not entitled was dated 22 February 2011. The attached reasons for decision were brief. After stating that the available evidence confirmed that the injury claimed was not due to service, they continued (not very grammatically):
``The Secretary of State confirms that on the balance of probabilities the incident was not caused by service as the Learning Account confirms that you took an opportunity to go the beach and local shops prior to leaving for Puerto Rico to purchase victuals for the passage. The incident claimed is shown to be an activity for private enterprise which is not covered under the JSP 765 as such falls for rejection under AFCS for which no benefit is payable under the Scheme.''
The ``Learning Account'', which I think was not seen by the claimant until its inclusion in the Statement of Case for the First-tier Tribunal, was a brief record dated 10 February 2010 by a Royal Marines officer of the events of 23 January 2010, the action taken by the claimant's unit and what immediate lessons had been learnt and action taken to prevent a recurrence. The Learning Account did not in fact say that the claimant had taken an opportunity to go to local shops to purchase victuals. It was clear that that task was carried out by the skipper of the yacht. It merely recorded that the six marines comprising the crew had left the yacht at about 1000 to take the opportunity to go to the beach and local shops. Since it recorded the incident as happening at about 1015 the Learning Account was only consistent with the claimant having gone straight to the beach with at least some of the others, as found by the tribunal. The references to going to shops have been the source of some worry, but I do not consider that any earlier confusion had any influence on the decision of the tribunal of 15 June 2012. ``JSP 765'' is a Ministry of Defence guide to the AFCS, apparently in the public domain because a copy of the original April 2005 version was included by the claimant's representatives in their hearing bundle for 24 October 2013.
By a letter dated 10 March 2011 the claimant expressed the wish to appeal against the decision notified on 22 February 2011. The appeal form was received on 13 May 2011. A reconsideration was carried out as required by article 53(5) of the AFCS Order 2011, which came into force on 9 May 2011. Whether the notice of appeal is regarded as having been given on receipt of the letter of 10 March 2011 or on receipt of the appeal form (with reasons...
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