Upper Tribunal (Administrative Appeals Chamber), September 15, 2016, [2016] UKUT 418 (AAC)

Resolution Date:September 15, 2016
Issuing Organization:Upper Tribunal (Administrative Appeals Chamber)
Actores:HH-T v Secretary of State for Defence (WP) (War pensions and armed forces compensation : War pensions - entitlement)
 
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HH-T v Secretary of State for Defence (WP)

[2016] UKUT 0418 (AAC)

1

CAF/3318/2012

HH-T v Secretary of State for Defence (WP)

[2016] UKUT 0418 (AAC)

IN THE UPPER TRIBUNAL Appeal No: CAF/3318/2012

ADMINISTRATIVE APPEALS CHAMBER

Before: Upper Tribunal Judge Wright

DECISION

The Upper Tribunal allows the appeal of the appellant.

The decision of the First-tier Tribunal sitting at Manchester on 21 September 2011 under reference ASS/00765/2010 involved errors on material points of law and is set aside.

The Upper Tribunal is not in a position to re-decide the appeal. It therefore refers the appeal to be decided afresh by a completely differently constituted First-tier Tribunal and in accordance with the Directions set out below.

This decision is made under section 12(1), 12(2)(a) and 12(2)(b)(i) of the Tribunals Courts and Enforcement Act 2007

DIRECTIONS

Subject to any later Directions made by a Tribunal Judge of the First-tier Tribunal, the Upper Tribunal directs as follows:

(1) The new hearing will be at an oral hearing.

(2) If the appellant has any further evidence that he wishes to put before the tribunal that is relevant to his appeal this should be sent to the First-tier Tribunal's office at Fox Court in London within one month of the date this decision is issued.

(3) The First-tier Tribunal should have regard to the points made below.

Representation: Hugh Lyons of Hogan Lovells International LLP for the appellant

Colin Thomann (instructed by Treasury Solicitors) for the respondent

REASONS FOR DECISION

Preamble

  1. This appeal was first decided by me on 4 June 2015. On an application by the Secretary of State for Defence for permission to appeal to the Court of Appeal, and both parties then having made further written submissions, I have by a decision of today's date reviewed and set aside the decision of 4 June 2015 pursuant to section 10(4)(c) of Tribunals, Courts and Enforcement Act 2007 and rule 45(1)(a) of the Tribunal Procedure (Upper Tribunal) Rules 2008.

  2. I have set aside the 4 June 2015 decision on the basis that in deciding the level of disablement the First-tier Tribunal could find on an assessment appeal I had wrongly and materially overlooked the statutory definition of ``disablement'' found in Item 27 in Part II of Schedule 6 to the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 2006 (``SPO 2006''). This provides that ``disablement'' means ``physical or mental injury or damage or loss of physical or mental capacity (and ``disabled'' shall be construed accordingly)''. That statutory definition is wide enough to encompass a past back injury or damage to a back which is currently asymptomatic. Thus it may be said that what the Secretary of State had decided in terms of entitlement was that in 2010 the appellant had a back disablement (in the wide statutorily defined sense) due to an injury which was attributable to service before 6 April 2005, but in terms of assessment of the degree of disablement that disablement gave rise to nil percentage disablement. Whether that nil assessment was in fact correct was, and remains, for the First-tier Tribunal to rule on.

  3. The decision of 4 June 2015 is therefore no longer of any legal effect. I have re-decided this appeal by this decision and this decision therefore replaces in its entirety the decision made on 4 June 2015.

    Introduction

  4. This appeal raises a number of issues concerning what is referred to as ``spanning'' in the context of the two statutory compensation schemes that cover members of the armed force. The term ``spanning'' is used to refer to claims for pensions and compensation by ex-service men or women that cover service in the armed forces before and after 6 April 2005.

  5. Putting matters broadly at this stage, prior to the Armed Forces (Pensions and Compensation) Act 2004 coming into effect in November 2004 an ex-service man or woman who had suffered disablement due to service had entitlement to a pension or allowances addressed under the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 1983 (``SPO 1983'').

  6. Under the SPO 1983 the Basic condition of awards was that ``awards may be made where the disablement....of a member of the armed forces is due to service'' (article 3 of SPO 1983) and the General Condition of an award in respect of disablement was that ``awards may be made in respect of the disablement of a member of the armed forces which is due to service....'' (article 8 of SPO 1983). Neither article was subject to any restriction as to the time of the service.

  7. However, the SPO 1983 was amended by the Naval, Military and Air Forces Etc (Disablement and Death) Service Pensions (Amendment) Order 2005 (SI 851 of 2005) with effect from 6 April 2005. This amending provision inserted the words ``before 6th April 2005''after the word ``service'' in both articles 3 and 8 of the SPO 1983, as well as elsewhere in that Order. This had the effect that ``awards may be made where the disablement of a member of the armed services is due to service before 6th April 2005''. On the face of it disablement due to service on or after 6 April 2005 did not fall within the SPO 1983.

  8. To like effect, article 4 of the SPO 1983 - tilted Entitlement where a claim is made in respect of a disablement, or death occurs, not later than 7 years after the termination of service (but as article 3 appearing in Part II of the SPO 1983 dealing with General Principles of Awards) - was amended so that, relevantly, it read (I have underlined the words which were inserted by the relevant amendment):

    ``4.-(1) Where, not later than 7 years after the termination of the service of a member of the armed forces, a claim is made in respect of a disablement of that member......such disablement....shall be accepted as due to service for the purposes of this Order provided it is certified that--

    (a) the disablement is due to an injury which--

    (i) is attributable to service, or

    (ii) existed before or arose during service and has been and remains aggravated thereby;....

    (2) Subject to the following provision of this article, in no case shall there be an onus on any claimant under this article to prove the fulfilment of the conditions set out in paragraph (1) and the benefit of any reasonable doubt shall be given to the claimant.....

    (6) For the purposes of this article ``service'' means service as a member of the armed forces after 30th September 1921 but before 6th April 2005.''

    A similar amendment was made to article 5 of the SPO 1983, which dealt with claims made more than 7 years after the termination of service.

  9. These amendments coincided exactly with the coming into operation of the Armed Forces and Reserve Forces (Compensation Scheme) Order 2005 (the ``AFCS Order 2005''), which was made under the Armed Forces (Pensions and Compensation) Act 2004. The intention behind the setting up of the AFCS Order 2005 was, to quote from the Court of Appeal in Secretary of State for Defence -v- Duncan and McWilliams [2009] EWCA Civ 1043; [2010] AACR 5:

    ``to provide a fair system, easy to administer and which, unlike previous schemes, would allow injured service men and women to have their claims determined, and compensation paid, whilst they remained in service. It constitutes a change from the philosophy of previous schemes....''

  10. The date 6 April 2005 was also central to the AFCS Order 2005. Thus, relevantly, article 7(1), dealing with Injury caused by service, set out that ``Benefit is payable in accordance with this Order to or in respect of a member or former member of the forces by reason of an injury which is caused (wholly or partly) by service where the cause of the injury occurred on or after 6th April 2005'', and article 8(1), addressing Injury made worse by service, provided that:

    ``Subject to the following provisions of this article, benefit is payable in accordance with this Order to or in respect of a former member of the forces by reason of an injury made worse by service if the injury:

    (a) was sustained before he entered service and was recorded in the report of his medical examination when he entered service;

    (b) was sustained before he entered service but without his knowledge and the injury was not found at the examination; or

    (c) arose during service but was not caused by service

    and in each case [service was the predominant cause of the worsening of the injury and] the injury was made worse by service on or after 6th April 2005.''

    (The words in square brackets were added at a later date. The whole of the AFCS Order 2005 was replaced by the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011 with effect from 9 May 2011. It is the AFCS Order 2005, however, which is relevant to this appeal.)

  11. Given the seemingly sharp edged dividing line of 6 April 2005, it may have been thought that the application of the two schemes was straightforward and mutually exclusionary: an injury due to, or caused by, service before 6 April 2005 falls under the SPO 1983 (or its successor); injury caused by service on or after that date is dealt with under the AFCS 2005 (or its successor). However, that is not necessarily the case (see JN -v- Secretary of State for Defence (AFCS) [2012] UKUT 479 (AAC) in the context of awards under the AFCS Order 2005). To understand why this may be so it is necessary to first detail the relevant facts on this appeal.

    Relevant Facts

    Introductory

  12. The appellant joined the Army on 21 November 1994 at the age of 19. He served as a Vehicle Recovery Mechanic between 1994 and 2010, with tours of service in Bosnia, Iraq and Kuwait. He was medically discharged on 1 June 2010. As his service spanned 6 April 2005, his entitlement to any award in respect of his `conditions' (to use a neutral word at this stage) on his discharge from service was assessed under the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 2006 (the...

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