Upper Tribunal (Administrative Appeals Chamber), June 11, 2015,  UKUT 332 (AAC)
|Resolution Date:||June 11, 2015|
|Issuing Organization:||Upper Tribunal (Administrative Appeals Chamber)|
|Actores:||JM v Secretary of State for Defence (AFCS) (Commissioners' procedure and practice : fair hearing)|
JM v Secretary of State for Defence (AFCS)
 UKUT 332 (AAC)
Mr Justice Charles
Upper Tribunal Judge Rowland
Upper Tribunal Judge Lane
For the Appellant: Elaine Banton instructed by Hogan Lovells International LLP
For the Respondent: Adam Heppinstall instructed by the Treasury Solicitor
The appeal is allowed. The decision of the First-tier Tribunal dated 23 May 2013 is set aside for inadequacy of reasoning and procedural unfairness.
The case is remitted to a differently-constituted panel of the First-tier Tribunal to be re-decided in accordance with guidance given in this decision and the following directions.
The appellant must send, so that it is received by the First-tier Tribunal within one month of the date this decision is sent to the parties, a witness statement setting out his detailed account of the circumstances of the two assaults on him and his allegations of the campaign of bullying against him;
Upon receiving the appellant's witness statement, the First-tier Tribunal must send a copy of it to the respondent.
The respondent must send, so that it is received by the First-tier Tribunal within one month of the appellant's statement being sent to him by the First-tier Tribunal, a written submission setting out his case in the light of the appellant's witness statement.
Upon receiving the respondent's submission, the First-tier Tribunal must send a copy of it to the appellant (unless the respondent has already done so).
The First-tier Tribunal may vary any of the above directions.
This decision contains conclusions and guidance on a number of topics. It does so under the following headings.
REASONS FOR DECISION
This is an appeal against a decision of the War Pensions and Armed Forces Compensation Chamber of the First-tier Tribunal (the War Pensions FTT or the FTT) dated 23 May 2013, for which a statement of reasons was signed on 7 June 2013, (the Decision) on appeals by the appellant against decisions of the respondent (the Secretary of State) under the Armed Forces Compensation Scheme (AFCS) refusing to pay him compensation in respect of (a) damage to his two front teeth, (b) a stab wound to his leg and (c) depression.
The decisions of the Secretary of State were made on 29 March 2011 and 3 June 2011 were made respectively under the Armed Forces and Reserve Forces (Compensation Scheme) Order 2005 (SI/2005/439, as amended) and 2011 (SI 2011/517) respectively (the 2005 Order and the 2011 Order). The terms of the relevant articles are set out later in this decision.
Permission to appeal was given by the then President of the War Pensions FTT on the grounds that the following arguable questions had been raised by the appellant's representative:
(a) whether there was cogent circumstantial evidence that the Tribunal failed to take into account;
(b) whether there was a breach of care on the part of the Army because of their failure to remove the appellant from the Unit following his harassment allegations; and
(c) whether the Tribunal should have set out all the causes of the claimed condition before deciding what the predominant cause was.
He also gave permission so that the Upper Tribunal could give guidance on the correct approach to be taken in AFCS bullying cases. It was directed that this appeal be heard by a three judge panel for this purpose.
Procedural unfairness was not a ground of appeal for which permission was given by the Chamber President of the War Pensions FTT. It was raised by us at the main hearing. No adjournment was sought and we dealt with it at the hearing.
When we were writing this decision, points occurred to us that had not been put to the parties. These related to the application of the relevant articles on causation. A further hearing took place to deal with the points we raised. Unfortunately that gave rise to some delay.
Background and procedural history
The appellant enlisted in August 2005 and was discharged from the Army in September 2009. He was a private soldier. It was alleged that on 2 September 2008 the appellant head butted his roommate after that roommate had told him to clean up his section of the room. So, in this alleged incident in Kuwait he was alleged to be the aggressor. In the context of the investigation of that incident (and others) the appellant 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.
As the appellant had raised this allegation of bullying, in early November 2008 a Captain C was appointed to carry out a Formal Investigation of Harassment of the appellant. Statements taken in the context of this investigation covered the alleged head butting by the appellant as well as his allegation of a campaign of bullying. However, because the appellant had returned to Gütersloh, he was interviewed there by a Captain T after the others had been interviewed.
A letter dated 14 November 2008 from Captain T records that at interview the appellant decided to rescind his allegations because he felt that the interview process would be too painful to continue with. That letter annexed a draft withdrawal letter to be signed by the appellant also dated 14 November 2008. On the letter from Captain T, beside the reference to that letter of withdrawal, there is a manuscript note to the effect that this was because of pressure from others. Counsel for the appellant told us that the FTT were told that this was the appellant's reason for dropping the investigation.
A number of statements were taken later in November 2008 from members of the troop. The statements refer (a) to a view that, given the appellant's state of mind, the victim of the head butting could have been anyone, (b) to the appellant's upset and difficulties relating to his wife and child leaving him, and (c) to the appellant's stammer. In one of the statements there is a reference (d) to some of the troop beginning to say from time to time that they ``would hammer him when they got back''. In relation to the assault by the appellant in Kuwait, some members of the troop stated that the appellant had previously been told to tidy up his part of the room because he was leaving food there and cockroaches and a mouse had been seen.
The report relating to the investigation of the alleged assault is dated 27 November 2008 and its penultimate paragraph (with our emphasis) states:
``The RMP investigation at reference A does not go into detail regarding [the appellant's] complaint of bullying. During Capt [T's] interview with [the appellant], no details could be gleaned as to the specific complaint of bullying against him. [The appellant] has deployed with problems with his private life and these have become public knowledge within Force Protection. [The appellant] has been involved in a number of confrontational incidents with members of Force Protection Tp during the tour which, have caused those who initially called him a friend to distance themselves from him. There does not seem to be any campaign of bullying against [the appellant] based on these witnesses who lived and worked closely with him, only sporadic instances of banter which a present NCO rectified the situation.''
This account makes it clear that no details of the appellant's allegations were given at the time. The conclusions reached were therefore based on the statements of others, some of whom could well have been the alleged perpetrators to whom his allegations could not be put and who could not be questioned in the knowledge of what they were.
The appellant's case was that members of the troop were on leave at the end of 2008 and in January 2009 and that he was stabbed in the leg by one of them in February 2009 shortly after their return to Gütersloh, although he was unable to identify the assailant. It was accepted that this assault took place. The other physical injury on which he based a claim (damage to his front teeth) was inflicted later in August 2009 when he was head butted by another soldier. This assault led to a Court Martial. The assailant admitted the offence and was punished. The court accepted that the assailant felt that he had been provoked in an argument about cigarettes he had given to the appellant and which he wanted back. The appellant, however, was not present at the hearing and the papers before us do not contain any account given to the Court Martial of his version of events relating to that incident or any previous bullying.
In March 2010, after his discharge from the Army, the appellant made four claims under the AFCS which were based on those two injuries, an allegation that he suffered from depression as a result of bullying in the Army and an allegation that he suffered from hearing loss (which is not material to this case and to which we make no further reference). His claim form includes very limited particulars of his allegation of bullying, and of the circumstances surrounding and leading up to the two assaults on him, although it did name the person who had damaged his front teeth and said that the incident had been reported to the duty sergeant at the barracks and to the Royal Military Police. It does not identify the person who stabbed him, nor contain any explanation about why he believes he was assaulted. Neither does it refer to the incident in which he assaulted another soldier or to whether that incident was connected to the alleged bullying. In his claim form in respect of his claim based on depression he says:
``Depression was caused through constant bullying, verbal abuse, just because I stutter, I am Liverpudlian and that my wife left me a few weeks prior to deployment. Felt intimidated, low self-esteem and although I tried talking to them things didn't change.''
The Secretary of State appears to have obtained documents from...
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