Upper Tribunal (Administrative Appeals Chamber)

 

DECISION OF THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

 

The claimant's appeal to the Upper Tribunal is allowed. The decision of the Newcastle upon Tyne First-tier Tribunal sitting on 28 January 2011 involved an error on a point 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 paragraphs 45 to 47 below and any further procedural directions given by a First-tier Tribunal judge (Tribunals, Courts and Enforcement Act 2007, section 12(2)(b)(i)).

 

 

REASONS FOR DECISION

 

1. This case involves some very difficult questions of law involved in the interpretation of article 8 of the Armed Forces and Reserve Forces (Compensation Scheme) Order 2005 (“the AFCS Order”) on when benefit can be payable under the Scheme on the basis of an injury having been made worse by service in the armed forces on or after 6 April 2005 where the person concerned has also served in the forces before 6 April 2005. So far as I know, this is the first case raising those questions to fall to be decided by the Upper Tribunal. For those reasons I directed that there was to an oral hearing of the appeal. The claimant did not attend and was not represented at the hearing. The Secretary of State for Defence was represented by Colin Thomann of counsel, instructed by the Treasury Solicitor’s Department. In the absence of the claimant or any representative from the hearing, I gave Mr Thomann’s submissions especially careful scrutiny. I gave him a short time after the hearing in which to make a further written submission on a question that had arisen, which was received on 26 September 2012. In the event, I did not consider it necessary to give the claimant the opportunity to comment on the further written submission, which will be sent to her at the same time as this decision.

 

The relevant legislation

2. As in force at the date of the Secretary of State’s decision under appeal (7 September 2009), article 8 provided:

 

“8.—(1) 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 that 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, subject to articles 15(1A), 15A(1), 15B(1) and 15C(1), the injury was made worse by service on or after 6th April 2005.

 

 (2) Benefit is only payable under paragraph (1) if, in each case, the injury has been worsened by service and remains worsened by service on—

 (i) the day on which the member of the forces’ service ends, or

(ii) the date of claim if that date is later.

 

 (3) Subject to paragraph (4), in the case of paragraph (1)(a) or (b), benefit is only payable if—

 (a) the member of the forces or former member of the forces was downgraded within the period of 5 years starting on the day on which he entered service;

 (b) the downgrading lasted for a period of at least 6 months (except where the member of the forces was discharged on medical grounds within that period);

 (c) the member or former member of the forces remains continually downgraded until his service ends; and

 (d) the worsening was the predominant cause of the downgrading.

 

 (4) No benefit is payable where the injury which was sustained before the day on which the member of the forces entered service is worsened—

 (a) within the period of 6 months; or

 (b) after the period of 5 years

in both cases starting on that day.

 

 (5) In the case of paragraph (1)(c), benefit is only payable if the member of the forces—

 (a) was downgraded within the period of 5 years starting on the day on which he sustained the injury and remains continually downgraded until his service ends; and

 (b) the worsening was the predominant cause of the downgrading.”

 

The Secretary of State tends to use the numbering in the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011, which has now taken over from the AFCS Order, but I prefer to refer to the AFCS Order as in force at the relevant time.

 

3. There are a number of important definitions in article 2. “Service” means “service as a member of the forces”, ie the armed forces and reserve forces, subject to the exclusions in article 10 that are not relevant in the present case. “Downgraded” means “downgraded for medical reasons as a result of which the person downgraded undertakes a reduced range of duties but retains his rank and pay”. “Injury” is merely defined as including illness, but article 14 in prescribing the circumstances in which a lump sum benefit is payable in effect requires an injury to be mentioned in one of the Tables in Schedule 4 to the AFCS Order (subject to the procedure for temporary awards). “Predominant” means more than 50 per cent. Articles 15(1A) and 15A to 15D are not relevant in the present case. They were added in 2008 to set up a complicated structure for increased payments when a person sustains more than one injury in one incident.

 

 

4. Further, under article 50 the “burden of proving any issue under this Order shall lie on the claimant”. The standard of proof applicable in any decision under the AFCS Order is to be “the balance of probabilities” (article 51). Entitlement to benefits can also arise under article 7 where an injury is caused (wholly or partly) by service where the cause of the injury occurred after 6 April 2005, with service having to be the predominant cause if the injury is not wholly caused by service.

 

The background

5. The claimant, who was then just turned 34, entered service with Queen Alexandra’s Royal Army Nursing Corps on 23 May 2002. She had previously worked in a clothing factory before qualifying as a nurse in 2002 after a degree course. She said at her entry medical on 21 January 2002 that she ran. She was medically discharged on 20 August 2009. The Medical Board of 17 February 2009 which recommended that discharge stated the “principal condition(s) affecting the medical employment standard leading to the Medical Board” to be “degenerative disease (osteoarthritis) of both knees”, with the date of origin being 2004. The box for other conditions affecting the medical employment standard was left blank. The claimant’s potential entitlement under the AFCS Order was therefore, since the definition of “discharged on medical grounds” in article 1(3) was presumably fully satisfied, considered under article 37 without the need for any claim.

 

6. The fullest picture of the relevant course of the claimant’s service was given in the “history of presenting complaint(s)” recorded by the Medical Board, which it is useful to set out because some of the information is not included in the medical records copied in the statement of case.

 

“[The claimant] was late entrant to the Army, having worked in a clothing factory until 1999. Having qualified as a nurse at Northumbria University in 2002, she then joined the QARANC, however, during basic training she suffered from a number of lower limb problems. It was noted that she was regularly on crutches during her training period. She suffered from bilateral shin splints and knee pain. She claims that she also suffered a stress fracture of the (L) tibia which resolved spontaneously. She did not have a bone scan. In the final exercise of basic training, she was (apparently) able to complete the 1½ mile run and was, therefore, able to pass the training course. Initially, she was posted to a general surgery ward at RH Haslar, but in 2004, she was posted to 34 Field Hospital at Strensall for compassionate family reasons. The new unit expected her to do more PT and, during a 4 mile run, she collapsed because her left knee gave way. She was referred to Mr Van Niekerk (Consultant Orthopaedic Surgeon at Friarage Hospital, Northallerton). An MRI Scan of the (L) knee indicated a medial meniscus injury and she was admitted in Aug 05 for an arthroscopy and chondroplasty on the (L) knee. Although she made an initial recovery, and returned to work, she developed further problems in her (L) knee in 2006. She was readmitted under Mr Niekerk and a second arthroscopic procedure was performed. She was found to have another full thickness chondral lesion on the medial femoral condyle and a micro-fracture was performed. There was evidence of degenerative disease and an osteophyte was shaved away. However, [the claimant] continued to have problems with the (L) knee and was off duty for a considerable period of time during which she was downgraded to P0 in Dec 06. She was referred back to Mr Niekerk in Jan 07. At that time she was suffering from severe discomfort in the (L) knee and was found to have an effusion. At this time she was found to have significant muscle weakness of both the quads and hamstring muscles of the (L) leg. Pain was worse on going downstairs. [The claimant] received a course of local anaesthetic and steroid injections to the (L) knee, which did give her some temporary benefit. She attended [the Regional Rehabilitation Unit] Catterick for a 3 week knees course, during which she progressed quite well. However, she was unable to run and unable to kneel. At this time she was graded P7 L7 H0.

 

Despite the efforts of the Physiotherapy Department, [the claimant] continued to get severe pain and discomfort from her (L) knee and her ability to walk a significant distance was impaired. In Mar 2008, further MRI scan was performed. There was no evidence of any tear in the medial or lateral meniscus. Both cruciate ligaments were intact. There was a small joint effusion and, apart from a mild degree of chondromalacia, there was no significant abnormality on the scan. In Jun 08, [the claimant] was reviewed by the MIAC in Catterick. There was no indication for further invasive treatment. Further physiotherapy and rehabilitation was recommended. However, at this stage [the claimant] was so disabled that she was unable to do any duties. She was reviewed by the Standing Medical Board in Jun 08 and was graded P0 by Col Richards. The possibility of P8 Medical Discharge was discussed, however, before this was implemented, [the claimant] was given a final review by an Orthopaedic Surgeon. She saw Mr Van Niekerk again in Sep 08 who noted that there were moderate sized effusions in both knees and crepitus arising from the synovium of both knees. No further surgery was indicated. She was referred back to the Medical Board for consideration of Medical Discharge. In Dec 08, [the claimant] was also reviewed by Consultant Rheumatologist, Col Etherington, who confirmed a diagnosis of degenerative disease and osteoarthritis. He stated that [the claimant] had no future in the army and that she would end up with a Medical Discharge.”

 

It was also recorded under “current situation” that the claimant had not attended any duties since March 2008, could only walk 10 yards unsupported, could not walk down stairs, could not drive and could not run. There are other relevant elements of the medical evidence that I shall mention at the appropriate points below.

 

7. The claimant had a medical examination at home on 31 August 2009 which confirmed the general picture above. Then by a letter dated 7 September 2009 she was notified of the decision that she was not entitled to an award under the AFCS. The reason given was that her downgrading was due to the nature of her condition and not any worsening by service, so that article 8(5)(b) of the AFCS Order was not satisfied.

 

8. On 29 September 2009 a decision was made under the Naval, Military and Air Forces Etc (Disablement and Death) Service Pensions Order 2006 (the Service Pensions Order) accepting the disablements of osteoarthritis both knees, low back pain syndrome and sprain injuries to left wrist and hand (2007) as attributable to service (before 6 April 2005) and making a combined assessment of disablement at 40%. The medical adviser’s certificate included the following about the condition of osteoarthritis in both knees:

 

“Well documented onset of knee problems leading to osteochondral damage and degenerative changes of the left knee during service. Lesser pain in right knee. We can not show beyond a reasonable doubt that factors of service have played no part in the development of the condition in this case. Therefore attributable to service.”

 

Under article 40(3) of the Service Pensions Order there was no onus on the claimant to show the fulfilment of the condition that her disablement be due to service and she was to be given the benefit of any reasonable doubt. She also, because the injury that led to medical discharge had not been noted on her entry medical, had the benefit of the so-called “compelling presumption” in article 40(4), requiring a certificate to be given unless the evidence showed that the conditions of entitlement were not fulfilled. It is a general condition of an award under the Service Pensions Order that disablement be due to service before 6 April 2005.

 

9. The claimant appealed against the decision of 7 September 2009, saying that her condition was made worse since the last operation she had in June 2006. She mentioned that she had gone back to work after being put back to P7 from P0 in February 2007, but in the next 13 months had a number of falls and sustained a number of injuries to her hands until in March 2008 when she could barely walk she was put on permanent sick leave. She said that from the 2006 operation she was told that she was a danger to herself and patients on the ward.  There was the reconsideration required by article 45(5) of the AFCS Order, under which the original decision was maintained. The reasons as stated in the letter dated 8 February 2010 were that the evidence showed that her injury was caused by service before 6 April 2005, so that in accordance with article 8(1)(c) benefit could not be paid for any worsening by service. It was also stated that “as you have been accepted under the War Pension Scheme for injury, you cannot receive an award under the AFCS for the same condition”. There was even an application to the First-tier Tribunal for the appeal to be treated as lapsed on the ground that the claimant could not be compensated twice for the same condition, which was rightly rejected by the principal judge on 12 April 2010. Despite that judge’s advice about relevant evidence and that of the senior medical adviser on 18 March 2010, service medical records prior to 2004 were not included in the statement of case.

 

10. The claimant did not attend the tribunal hearing on 28 January 2011. She had replied on a listing questionnaire signed on 1 December 2010 that she did not intend to be present at the hearing of her appeal and requested a hearing in her absence because she was unable to attend because she was “unable to walk any distance or travel” and could not get to a doctor due to the weather. A printed note under the question said that if a person was unable to attend for medical reasons a note from their doctor was to be forwarded and the sending of a tribunal member to the person’s home would then be considered. The claimant was then sent a letter on 21 December 2010 saying that she had asked for the appeal to be heard in her absence and that it had therefore been listed for hearing in Newcastle on 28 January 2011. The letter continued: “There is, of course, no need for you to attend and you will be notified of the Tribunal’s decision a few days after the hearing”. Paragraph 7 of the tribunal’s statement of reasons was as follows (I have kept the use of different fonts as in the original):

 

“The Appellant  did not appear at the hearing and the Tribunal decided that it was fair to continue in her absence because she had previously stated that she did not propose to attend.”

 

The First-tier Tribunal’s decision

11. The tribunal disallowed the appeal, having heard from Mr Brailsford on behalf of the Secretary of State. Combining the contents of the two records of proceedings available, he seems to have submitted that the legislation did not cover the situation, but that the claimant could not receive duplicate compensation for the same injury from both schemes and article 8 of the AFCS Order applied. That may have been an alternative way of putting the point made in the Secretary of State’s written reasons for decision in the statement of case, that the claimant’s condition had been accepted as caused by service under the Service Pensions Order and a condition could not be both caused by service and worsened by service, so that worsening under the AFCS Order could not be accepted. He also submitted that the claimant’s argument was that worsening was due to medical treatment, not the rigours of service or any other service factor, and that the possible results of treatment were encompassed in the Service Pensions Order award. The tribunal’s statement of reasons recorded in paragraph 6 that it had decided that it was fair to continue in the claimant’s absence because she had previously stated that she did not propose to attend.

 

12. The tribunal’s findings of fact in paragraph 9 of the statement were as follows:

 

“The Tribunal notes that the Appellant’s injury was first diagnosed in 2004. She was subsequently medically discharged from service on 20^th August 2009. She received an award under the Service Pensions Order 2006 and was originally assessed as 30% disabled as a consequence of her accepted condition. A recent Service Pensions Order 2006 review of that accepted condition has now resulted in that award being increased to 40%. The Tribunal is requested to determine as a matter of fact whether or not there was any factor of service which arose after 6^th April 2005 which could be construed in accordance with Article 8 of the AFCS Order 2005 as having aggravated the condition for which the Appellant has already received an award under the Service Pensions Order 2006.”

 

Paragraph 10 under the heading of reasons then continued (I have corrected some obvious typing errors):

 

“The Tribunal is satisfied that the original condition `osteoarthritis – both knees’ was diagnosed prior to 6^th April 2005. On that date the Appellant was already downgraded as a result of the injury. The evidence strongly suggests that the downgrading was maintained until discharge from service and that there was no intervening incident or factor of service which aggravated the accepted condition after 6^th April 2005 so as to result in any further downgrading.

 

The Appellant has now received an award under the SPO which, at termination of service, was assessed at 30%. We are aware that a recent review of that assessment has resulted in the award being increased from 30% to 40%.

 

Whilst the Tribunal accepts that there was a subsequent medical intervention by way of surgery in 2006, and which sought to treat the injury concerned, there is no evidence to show that such treatment worsened the existing condition so as to result in any difference to the level of downgrading.

 

The Tribunal is therefore satisfied that there is no evidence which would show that upon a balance of probabilities there was any worsening of the condition after 6 April 2005 which caused the Appellant to be further downgraded. Consequently, the Tribunal find that it must uphold the Secretary of State’s reasons for refusal and that the provisions of Article 8(5)(b) do apply to this claim. The Tribunal finds that no factor of service after 6^th April 2005 which was responsible for the worsening of the Appellant’s accepted condition and therefore there could be no aggravation which resulted in downgrading which would entitle the Appellant to an award under the AFCS Order 2005.”

 

The appeal to the Upper Tribunal

13. The claimant now appeals against the decision of the tribunal of 28 January 2011 with the permission of the then President of the War Pensions and Armed Forces Compensation Chamber, Judge Bano. He considered that it was arguable that the tribunal ought to have considered whether the claimant had on or after 6 April 2005 suffered a medial meniscus injury separately from the condition of osteoarthritis for which she entitled to compensation under the AFCS Order.

 

Medial meniscus injury?

14. I can deal immediately with that point, which was, I think, based on the misleading way in which things were put in the report of the Medical Board of 17 February 2009. It was suggested there that a MRI scan prior to the operation in August 2005 had indicated a medial meniscus injury. It is true that the record of a letter of 1 March 2005 on behalf of Mr Van Niekerk reported a MRI scan as showing a possible radial tear of the left lateral meniscus. However, not only was that prior to 6 April 2005, but there was no mention of such damage in the notes of the operation of 30 June 2005 (page 21A). Mr Van Niekerk’s letter of 18 February 2006 (page 24) said that the pre-operative scan of December 2004 had shown areas of degeneration in the medial meniscus and it could be that those areas were the cause of the symptoms the claimant was then suffering, so that he was requesting a further MRI scan. His letter of 22 August 2006 (page 25) stated that the scan had demonstrated a suspicious tear in the medial meniscus. Arrangements were to be made for repeat arthroscopic treatment both to treat the medial meniscus pathology and to evaluate the area of articular cartilage to see if a repeat micro fracture was required. The notes of the operation of 31 August 2006 referred to medial compartment crepitus, but treatment was restricted to debridement of the patellar surface and of osteophyte and lumps at the site of the previous micro fracture, with a new micro fracture being done. According to the Medical Board of 17 February 2009 a further MRI scan in March 2008 provided no evidence of any tear in the medial or lateral meniscus.

 

15. That is a rather confused picture, especially to someone, like myself, with no medical qualifications. However, I am satisfied that the state of the evidence before the tribunal of 28 January 2011 was such that it did not go wrong in law by failing to identify for itself an issue for investigation and decision about whether there was a separate left knee meniscus injury that could give rise to an entitlement under the AFCS Order. Only issues not raised by the parties that are “clearly apparent” from the evidence (see Secretary of State for Work and Pensions v Hooper [2007] EWCA Civ 495, R(IB) 4/07, and the cases discussed there) could fall within such a duty, whether or not section 5B(a) of the Pensions Appeal Tribunals Act 1943 has exactly the same effect as section 12(8)(a) of the Social Security Act 1998. Whether or not what was revealed in the scan of December 2004 was a possible tear of the medical meniscus or the lateral meniscus and whether or not the operation of 30 June 2005 confirmed its existence, the cause of any damage that did exist must have been prior to 6 April 2005. Then the scan of March 2008 would appear to have ruled out any new damage to the medial or lateral meniscus on or after 6 April 2005, as well as suggesting that there had not actually been any earlier damage. In this respect I agree with the submissions made for the Secretary of State.

 

The submissions on the appeal

16. The claimant understandably put her case on appeal in terms of disagreement with the factual conclusions of the tribunal of 28 January 2011. In her letter of 5 March 2011 she said that she believed that osteoarthritis had not been diagnosed before her operation in 2006 and that previously the problem was a hole in her cartilage. On her notice of appeal on form UT 6 and in her comments dated 30 September 2011 she added that after she was told she could return to work in February 2007 she was not informed that that should be on non-clinical duties pending further investigation and was made to work normal 12-hour shifts on such duties, which made her condition worse and resulted in falls from her knee giving way.

 

17. The written submission for the Secretary of State, drafted by Mr Thomann, and in its revised version received on 19 August 2011, argued that a careful reading of the medical evidence refuted the propositions that the claimant’s condition was worsened by surgery in 2006 (rather than not made much better) or was worsened by a return to occupational duties in 2007, since the 2008 scan showed no deterioration in her degenerative knee changes. The position on the award of entitlement under the Service Pensions Order with a composite assessment of 40% was summarised as follows (omitting references to pages in the statement of case):

 

“10. The Tribunal may conclude, in those circumstances, that the pursuit of this appeal constitutes an abuse of process. The Secretary of State’s position, and the findings of the First-tier Tribunal, are in any event entirely consistent with the assessment under the Service Pensions Order.

 

 80. For completeness, it is not accepted that any symptoms caused by knee degeneration, whatever its aetiology, have been left out of account in the course of [the claimant’s] assessment for her War Service Pension. Whilst the principal invaliding condition was recorded to be osteoarthritis of both knees, the assessment took full account of all debilitating symptoms reported by [the claimant]. The acceptance of the full range of these symptoms of knee degeneration as having been caused by service for the purposes of her War Service Pension rules out, as a matter of logic, an award for worsening of an injury which `arose during service but was not caused by service’ (see the requirements of article [8(1)(c) of the AFCS Order]).”

 

At the oral hearing Mr Thomann made detailed submissions about the proper interpretation of article 8(1)(c). He suggested that satisfaction or otherwise of one of the conditions in article 8(1) logically came before consideration of article 8(5)(b). He submitted that even if the tribunal of 28 January 2011 went wrong in law on article 8(5)(b) or gave inadequate reasons for its conclusions, entitlement under the AFCS Order was plainly excluded by article 8(1)(c), especially when the logical effect of the Service Pensions Order award was taken into account.  His submission was that that would be so even if it were to be found as a matter of fact that the claimant’s osteoarthritis had been made worse by service on or after 6 April 2005, so that she failed to satisfy any of the alternative necessary conditions in article 8(1)(a) to (c). Therefore, he said, even if the tribunal had made errors of law, its decision should not be set aside or, at the most, the Upper Tribunal should substitute a decision with the same outcome.

 

18. I deal first with the general aspects of the arguments about the relevance and effect of the Service Pensions Order award and then with the more specific arguments about the meaning and effect of article 8(1)(c), before going on to consider the other parts of article 8.

 

Double compensation and abuse of process

19. The suggestion that it was an abuse of process for the claimant to pursue her appeal to the Upper Tribunal, after having been given permission to do so by the President of the First-tier Chamber, was profoundly misguided, indeed disgraceful. Rightly, Mr Thomann did not press the point in those terms at the oral hearing, but relied on his arguments about the logic of the application of article 8(1)(c). It is one thing for the Secretary of State to take the view that an appeal on a point of law or an application for permission to appeal is hopeless and to set out that view plainly and even forcefully in submissions. It is quite another thing to use terms like “abuse of process” when all that the claimant seeks is to use the statutory appeals mechanism to test out the correctness of a First-tier Tribunal’s decision. Leaving aside the fact that, as the present case shows, appeals considered hopeless by the Secretary of State may turn out to succeed on a point of law, there is an important value in the availability of the statutory appeals mechanism even in hopeless cases. Appellants are entitled to the reassurance that only after proper consideration by the Upper Tribunal will such a conclusion be confirmed, possibly with a fuller explanation than a First-tier Tribunal, hard-pressed for time, is able to give. Claimants are not be deterred from making use of the statutory appeals mechanism by the use of phrases like “abuse of process” by the official party to the appeal.

 

20. Neither the tribunal of 28 January 2011 nor Mr Thomann relied directly on any general principle against double compensation. However, the tribunal did clearly regard the making of the award to the claimant under the Service Pensions Order as a relevant factor in its decision and the Secretary of State had in submissions to the tribunal invoked a principle that there could not be duplicate compensation under the two schemes.

 

21. There is first a difficulty, at the least, in the tribunal having taken into account the award under the Service Pensions Order. Section 5B(b) of the Pensions Appeal Tribunals Act 1943 (the 1943 Act) provides that a tribunal “shall not take into account any circumstances not obtaining at the time when the decision appealed against was made”. Here, the decision under appeal was made on 7 September 2009. The Service Pensions Order award was made on 29 September 2009. Because the outcome of the reconsideration carried out on 5 February 2010 was to maintain the decision of 7 September 2009, the latter decision remained the final decision in accordance with article 46(3)(a)(i) and (b) of the AFCS Order. As decided by the three-judge panel of the Administrative Appeals Chamber in paragraphs 78 to 81 of Secretary of State for Defence v AD and MM (AFCS) [2010] AACR 5, it is the date of the maintained decision (7 September 2009) which is relevant for the purposes of section 5B(b), however odd that is in the light of the Secretary of State’s power, indeed duty, to take into account all up-to-date circumstances when carrying out a reconsideration under article 45. Mr Thomann did not dissent from that conclusion when it was put to him at the hearing. The oddity has been removed in the 2011 AFCS Order (see article 54(2)(f)).

 

22. It not though clear that the error of law in regarding the award under the Service Pensions Order was material to the tribunal’s decision. That is because it did not simply say that there could not be double compensation, but applied the terms of article 8(5)(b). I explore below whether that involved a misinterpretation of article 8(5)(b), but in my judgment that general approach by the tribunal was right. It had under consideration the statutory scheme created by the AFCS Order. The Order contains no provision at all that there cannot be an award of benefit under it if a claimant is entitled to an award for the same injury under the Service Pensions Order or that the amount of any such awards are to be deducted from a lump sum or a guaranteed income payment. There are provisions for reduction of benefits under the AFCS Order to take account of the receipt of other types of payments or awards of damages etc (articles 31 to 33), but those provisions do not cover awards under the Service Pensions Order. Indeed, the Service Pensions Order is only mentioned once, so far as I can see, in the AFCS Order, in article 35(2) (claim under the Service Pensions Order by a person who served on or after 6 April 2005 to be treated as being also a claim under the AFCS Order). By contrast, the Service Pensions Order does contain simple provisions in articles 40(3) and 41(1) that where a person is entitled to benefit under the AFCS Order in respect of an injury or death, that injury or death is not to be accepted as due service for the purposes of the Service Pensions Order. In those circumstances, where express provision has been made against double compensation that does not include awards under the Service Pensions Order, there is simply no warrant and no room for imposing some overarching principle against double compensation on top of the conditions laid down in the AFCS Order itself. The task of the Secretary of State and of tribunals on appeal is to apply those statutory conditions, as properly understood. If that application leads to entitlement to benefit, an award must be made, regardless of the existence or otherwise of an award under the Service Pensions Order. The existence of such an award is relevant only if relevant to the application of one of the statutory conditions, as properly understood. There might well be an argument for the interpretation of some ambiguous provision in a way that avoids double compensation, but such ambiguity does not arise in the present case.

 

23. It should be mentioned that if, in the present case, an award under the AFCS were ultimately to be made in relation to some or all of the disablements accepted in the award of 29 September 2009, a question would arise whether that could trigger the operation of article 40(3) of the Service Pensions Order to reverse the decision accepting the disablement or some part of it as due to service. There would in my view be difficult issues about how the powers in article 44 of the Service Pensions Order to review adversely to a claimant could apply and from what date any revised decision could take effect. It would not be right to go any further into those issues when their resolution is not necessary to the decision I have to make, but they may have to be addressed in some future appeal.

 

24. If the only error of law made by the tribunal of 28 January 2011 had been the breach of section 5B(b) of the 1943 Act, I would accordingly have been reluctant to set its decision aside.

 

Article 8(1)(c) of the AFCS Order

25. The whole of article 8 as in force at the relevant time is set out in paragraph 2 above. Article 8(1) contains the gateway provision controlling qualification on the basis of an injury having been made worse by service. I agree with Mr Thomann that the provision is very restrictive and that the precise use of language and the definitions of words needs careful consideration.

 

26. The first general issue of interpretation is the meaning of service. In particular, in “spanning” cases, does it refer to all service in the armed forces, whether before or after 6 April 2005 or does it only refer only to service on or after 6 April 2005? Mr Thomann submitted that it has the former meaning and I conclude that that has to be right. He pointed to the definition of service in simple terms as service as a member of the forces, without any qualification as to dates. He pointed also to the use of the word without any qualification as to date in sub-paragraphs (a) to (c) of article 8(1) and in the rest of article 8, with the condition about the injury being made worse by service on or after 6 April 2005 only coming in in the full-out words at the end of article 8(1). Further, “entered service” in sub-paragraphs (a) and (b) must be capable of applying to entry to service prior to 6 April 2005. It cannot possibly be restricted to service from 6 April 2005 onwards. There was no medical examination conducted for existing members of the armed forces just because that that date had been reached. The medical examination referred to could only be that routinely carried out when such person entered service, however far before 6 April 2005. If service has to have such a meaning in sub-paragraphs (a) and (b) it must have the same meaning in sub-paragraph (c) and also, it seems to me, in the rest of article 8.

 

27. I shall come back below to sub-paragraphs (a) and (b) of article 8(1). So far as sub-paragraph (c) is concerned, the effect of service having the meaning above is that a claimant does not get through that particular gateway unless the injury (before its alleged worsening) arose during service, whether before or after 6 April 2005, but was not caused by service, whether before or after 6 April 2005. The effect of articles 50 and 51 is that the burden is on the claimant to prove both of those conditions, including the negative of “not caused by service”, on the balance of probabilities. But what does “caused” mean? Is service a cause of the injury (before its alleged worsening) if a factor of service is a not insignificant cause of the injury, possibly among many other causes? That would probably be the ordinary meaning of cause in a legal context. Or is service a cause of that injury only if, in accordance with the test for the purposes of article 7, service is the predominant cause of the injury? If so, that would make it considerably easier for a claimant to prove that the injury in question had not been caused by service. I conclude that the latter meaning has to be right.

 

28. I test the matter in this way, assuming a situation where all service falls after 6 April 2005. If “cause” had the former meaning mentioned above it would produce perverse and absurd results that could not possibly have been intended. If, after the date on which the person’s service started, she suffered an injury that was entirely unrelated to service (for instance injuring a knee by slipping on an icy pavement while on leave and visiting parents) and that was later made worse by service (for instance by being required to undergo a run with heavy equipment or an assault course), she would qualify under sub-paragraph (c). If, by contrast, the initial injury to the knee occurred in a way that could be said to be caused by service, but not predominantly by service (a clear example seems elusive, but possibly by slipping on an icy pavement on the base at which she was stationed, but while returning from an unauthorised absence), she would not qualify under sub-paragraph (c). She could not on those assumptions show that the injury (before its alleged worsening) was not caused by service. But why should a member of the forces whose original injury was at least to some extent connected with her service be disadvantaged over someone whose original injury had no connection with service whatsoever? That in my judgment would be a result operating in the wrong direction and sufficiently clearly so to indicate that it could not possibly have been intended. That perverse and absurd result would be avoided if “not caused by service” in sub-paragraph (c) means “not predominantly caused by service”. In the examples above, both circumstances would then qualify under article 8(1)(c) and satisfy the further general condition that the injury had been made worse by service.

 

29. If that is the meaning that has to be given to “not caused by service” in circumstances falling entirely on or after 6 April 2005, then in my judgment the meaning must be the same whenever the initial injury occurred. The AFCS Order sets up a separate statutory scheme that is self-contained and exhaustive. Indeed, article 6(2) provides that, unless there is some express reference, the rules of the scheme, ie the terms of the AFCS Order, are to be construed without reference to any other scheme applicable to the armed forces. There is accordingly no warrant for construing “not caused by service” in any different way if at the relevant time compensation for injuries caused by service was through the Service Pensions Order, with its very particular and unusual rules about the basis on which service causation could be accepted.

 

30. It must then also follow that the existence of an award under the Service Pensions Order in respect of the same injury, if it can properly be taken into account by whatever body is making the AFCS decision, cannot be conclusive of the question whether an injury that arose during service prior to 6 April 2005 was not caused by service. As very briefly noted in paragraph 8 above, the legal basis on which the certificate was given on 29 September 2009 that the claimant’s osteoarthritis in both knees, low back pain syndrome and sprain injuries to the left wrist and hand (2007) were attributable to service was very different from that under the test of predominant cause. As the medical adviser recorded, the inability to “show beyond a reasonable doubt that factors of service have played no part in the development of the condition” meant that attributability to service had to be accepted. Contrary to Mr Thomann’s submission, I see no inconsistency either in logic or in law between the existence of a decision awarding entitlement under the Service Pensions Order on the basis of the certificate of 29 September 2009 and a potential conclusion for the purposes of article 8(1)(c) of the AFCS Order that the claimant’s osteoarthritis in both knees was not caused by service, but arose during service. Each conclusion was or would be reached for its own independent purpose and on a distinct legal basis. The question of whether article 8(1)(c) is satisfied has to be answered on a separate evaluation of whether an injury that arose during service was predominantly caused by service. The reasoning contained in a Service Pensions Order certificate or decision might be relevant to that evaluation, after proper account is taken of the legal basis of the reasoning, but is far from conclusive.

 

31. Accordingly, I cannot accept Mr Thomann’s submission for the Secretary of State that the existence of article 8(1)(c) of the AFCS Order constituted a knock-out blow for the claimant’s case even if it were accepted that osteoarthritis of the knees had been made worse by service on or after 6 April 2005. It is therefore necessary to go on and consider the grounds on which the tribunal of 28 January 2011 disallowed the claimant’s appeal. It is also necessary, for reasons that I did not appreciate at the time of the oral hearing, to consider the potential application of sub-paragraphs (a) and (b) of article 8(1).

 

Article 8(1)(a) and (b) of the AFCS Order

32. It has been assumed in the discussion of this case so far that it was obvious that neither of sub-paragraph (a) or (b) of article 8(1) could possibly be satisfied. However, further reflection in the light of Mr Thomann’s correctly focused emphasis on the meaning of “service” in article 8(1) has produced some doubt. Sub-paragraph (a) can confidently be excluded because osteoarthritis was not recorded in the claimant’s entry medical of 21 January 2002 (pages 10 to 11A). Since the claimant’s injury (before the alleged worsening) has been taken as osteoarthritis of the knees, is there though an argument to be made that that condition may have been present, unknown to the claimant, before she entered service and only manifested itself during service, which would bring her within sub-paragraph (b)? She had said at her entry medical on 21 January 2002 (page 10a) that had not suffered from backache or pain in the knee or other joints and stated to the Medical Board of 17 February 2009 (page 36) that she had been fully fit before joining the army and there was no other evidence pointing to pre-service knowledge of any knee problem. Other factors in support of such an argument could include not only the degenerative nature of the condition and what the claimant had done by way of work and recreation prior to entry into service, but also the emergence of relevant symptoms in 2004, only a couple of years after the start of service, and possibly much earlier (see the otherwise undocumented problems during basic training mentioned by the Medical Board of 17 February 2009). It may also be that the approach of the medical adviser who gave the Service Pensions Order certificate of 29 September 2009 reflected a doubt about whether the condition would have developed to some extent even if the claimant had not entered service. This is not the occasion to explore in detail exactly what “sustained” means. However, it seems to me that it must be interpreted consistently with the very broad nature of  the illnesses, disorders, conditions and injuries in the narrow sense etc that can give rise to compensation under the AFCS Order and so must cover the existence of some degenerative or other condition, probably as opposed to a mere susceptibility. In my judgment, it remains an open question whether as a matter of fact the claimant satisfied article 8(1)(b), just as it remains an open question whether she satisfied article 8(1)(c).

 

33. As I have concluded that the decision of the tribunal of 28 January 2011 has to be set aside on another ground, I fortunately do not need to decide whether the possible application of article 8(1)(b)  was clearly apparent from the evidence, so that it was an error of law to fail to deal with it when neither party had expressly raised the point.

 

Worsening and article 8(5)(b) of the AFCS Order

34. The tribunal plainly, by its reference to article 8(5)(b), operated on the assumption that the only relevant part of article 8(1) was sub-paragraph (c). On that assumption, I see nothing wrong in the tribunal, in effect, taking the view that it did not matter whether sub-paragraph (c) was satisfied or not because, even if it was, the claimant did not succeed. That might not be the logical order, but if a tribunal identifies a ground further down a chain at which a claim fails, it may legitimately rest its decision on that ground rather than on some logically prior ground. It is better if that basis is made explicit, but the failure to do in the present case was not fatal. However, the tribunal did, I am afraid, give a slightly confusing explanation of its reasoning and, most seriously, failed to deal with a substantial aspect of the claimant’s case.

 

35. At the end of paragraph 9 of the statement of reasons it posed the question that it needed to answer as whether or not there was any factor of service after 6 April 2005 that could be construed under article 8 as having aggravated the condition for which the claimant had already received an award under the Service Pensions Order. The emphasis on the making of the Service Pensions Order award was, for the reasons already given, misplaced. However, in essence the tribunal was asking itself whether the injury that it was assuming arose during service was made worse as a result of some factor of service arising on or after 6 April 2005. The use of the term “factor of service”, familiar from practice under the Service Pensions Order and its predecessors, was in my view perfectly appropriate since it is hard to see how “service” as a concept can of itself act as a causal factor. The term “aggravation”, again familiar from the Service Pensions Order, was an acceptable, albeit not desirable, substitute for “worsening”. The tribunal returned to its question at the very end of paragraph 10 of the statement in saying that it found that no factor of service after 6 April 2005 was responsible for the worsening of the claimant’s accepted condition and that therefore there could be no aggravation which resulted in downgrading that would entitle the claimant to an award under the AFCS Order. However, in earlier sentences in paragraph 10 the tribunal referred several times to finding no aggravation so as to result in further downgrading or some difference to the level of downgrading.

 

36. It is thus not entirely clear how far the tribunal was simply finding that there had been no worsening of the claimant’s osteoarthritis, as it arose in 2004, as a result of any factor of service occurring on or after 6 April 2005 or whether it was only finding that there was no such worsening that had in itself led to an initial downgrading or a change in the level of downgrading. Mr Thomann submitted that it was clear enough that the tribunal had made the former finding, that that was a finding that it was entitled to make and as such unimpeachable in law and that as a result the general condition in the full-out words at the end of article 8(1) was not satisfied. It may be that that was a finding that the tribunal was entitled to make, but, assuming that it was clearly enough made in that form, in my judgment the tribunal did not give an adequate explanation of why it rejected the claimant’s case that there had been a worsening of her underlying condition caused by having to go back to work on wards after February 2007. The claimant had to some extent focused on being made worse by the operation in 2006 (and it hard to see how any adverse effects of an operation carried out in a NHS hospital could be said to result from a factor of service, not to mention the exclusion in article 11(a)(iii)). But in my judgment Mr Brailsford for the Secretary of State was wrong to say to the tribunal on 28 January 2011 that the claimant was saying that medical treatment was the cause of the worsening and not any factor of service. She had stated clearly enough in her letter of appeal of 8 December 2009 that she was relying on deterioration in the time when she went back to work after regrading to P7 in February 2007, after the operation of 2006. The deterioration was merely said to have occurred after that operation, not necessarily as a result of it. There was a case to be made that there had been worsening in that period, on the assumptions being made by the tribunal, and it needed to explain why it did not accept that case.

 

37. Mr Thomann has put forward a number of arguments in his written and oral submissions to the effect that either the claimant’s underlying condition, as shown by scans etc and by operation results, stayed much the same throughout the relevant period or that the pattern was of a gradual increase in symptoms and restrictions due to the natural progress of the underlying condition itself, alleviated by temporary improvements due to injections or physiotherapy treatment, so that there was no worsening due to factors of service. Those arguments may or may not hold water (and it seems to me that the course of the claimant’s service, time off and on work and the sequence of PULHEEMS gradings has by no means been fully or clearly established), but the fact is that none of them were set out by the tribunal of 28 January 2011. This is not a case where the evidence is so clear that there could be only one answer, where it might have been possible to say that the failure to give adequate reasons was not material. If the answer had been in favour of the claimant, then the tribunal would, subject to finding additional downgrading as a result (see below), would have had to grapple with the terms of article 8(1)(c), which it did not mention at all. There was therefore an error of law in the giving of inadequate reasons that justifies the setting aside of the tribunal’s decision.

 

38. In so far as the tribunal of 28 January 2011 took the approach that a worsening in an article 8(1)(c) case could only be taken into account if it resulted in a new or increased downgrading, such a connection might emerge from article 8(5)(b) of the AFCS Order, but only after an element of work on the plain words of the provision. Article 8(5)(a) appears straightforward, but cannot be read as referring to a first imposition of downgrading resulting from the injury (before the alleged worsening), what I have called the initial injury, that has, for article 8(1)(c) to be in play, to have arisen during service. If it was read in that way, a claimant would automatically be excluded from entitlement however much worsening occurred later due to service. Such worsening could not be a cause, let alone the predominant cause, of the downgrading that had already happened. Such a result could not possibly have been intended. Therefore, the downgrading referred to in article 8(5)(a) must be some downgrading subsequent to the initial injury, and must encompass some further downgrading beyond that then in force that results from worsening. Although the definition of downgrading in article 2 appears not to envisage such gradations, a further downgrading must be accepted as occurring when an already reduced range of duties undertaken is further reduced. Then, such a downgrading must occur within five years. But there seems no reason why the test of subsequently remaining downgraded until service ends should be satisfied only where the level of downgrading remains constant or becomes more severe. It could lead to perverse and arbitrary result if a claimant were excluded from entitlement just because there were subsequent periods when the downgrading was less severe, providing that some degree of downgrading remains continually in force until the end of service. Similarly, the test in article 8(5)(b), the test of whether the worsening was the predominant cause must be applied to each successive downgrading or further downgrading. But if that article 8(5) test is once satisfied, it seems to me that it remains satisfied as a whole providing that the claimant remains continually downgraded until the end of service, whatever the subsequent fluctuations in the level of downgrading, without having to ask whether any subsequent more severe downgrading was caused by worsening or not.

 

39. The approach of the tribunal of 28 January 2011 was in general in accord with that suggested in the previous paragraph. However, its decision is undermined in law by its failure to deal with the case that there was a worsening of the claimant’s initial injury caused by having to undertake full clinical duties on a ward after her return to work in February 2007, which worsening could be argued to have been predominantly caused by service.

 

40. I have spent some time wondering about how article 8(3) and (4) are to be interpreted, in view of my direction below that the new tribunal to which I am remitting the case should consider the possible application of article 8(1)(b) with the benefit of a written submission on that issue from the Secretary of State. However, I have concluded that, as I have not received any submissions about those paragraphs it would be unwise to offer even tentative suggestions. If the new tribunal were to conclude after a full consideration of what I hope will be more extensive evidence and of any arguments put forward from either party that the claimant qualifies under article 8(1)(b) it must go on to consider for itself how paragraphs (3) and (4) apply to the particular circumstances, especially with the relevant periods under paragraph (4) starting to run from 23 May 2002.

 

The tribunal’s decision to proceed in the claimant’s absence

41. The tribunal of 28 January 2011 only had power to proceed to hear the claimant’s appeal in her absence if the conditions of rule 29 of the Tribunal Procedure (First-tier Tribunal) (War Pensions and Armed Forces Chamber) Rules 2008. The first condition, that the absent party had been notified of the hearing or that reasonable steps to do so had been taken, was satisfied in the present case. The second condition, in paragraph (b), is that the tribunal considers that it is in the interests of justice to proceed with the hearing. By necessary implication, the discretion given by paragraph (b), which is a judicial discretion and therefore to be exercised consciously, must be exercised by the particular tribunal which proceeds to conduct the hearing and make the decision. Only at that point can all relevant factors and the background of the over-riding objective in rule 2 of dealing with cases justly and fairly be properly considered. The question cannot be regarded as having been pre-determined by any pre-hearing administrative process, whether or not accompanied by any ruling of a tribunal judge. It is also follows that some explanation at least must be given in any statement of reasons for the exercise of the judicial discretion. It was the question of whether in the present case the tribunal had given an adequate for proceeding in the claimant’s absence that the Secretary of State was allowed to make a written submission on after the oral hearing.

 

42. Mr Thomann submitted in the observations dated 23 September 2012 that the tribunal had sufficiently shown that it was exercising a discretion, rather than simply adopting an administrative classification previously assigned, by its use of the word “but” in the sentence of explanation (see paragraph 10 above). He also submitted that in a case with no procedural complexities that sentence constituted an adequate explanation. He accepted that it would have been better if the tribunal had said why the claimant’s unequivocal choice for a hearing in her absence rendered it in the interests of justice for the tribunal to proceed, but that in the circumstances the succinctness of the explanation did not take it outside the standard required by law.

 

43. I have some doubts about both elements of that submission, but, since the tribunal’s decision has to be set aside for other reasons, I do not need to express any definite conclusions. First, the tribunal used the “and”, not “but”. However, I think that that by going on to express a view about fairness the tribunal was sufficiently indicating that if it had thought that it was not fair to continue in the claimant’s absence it would not have done so, and was therefore exercising a discretion. Second, it is clear from the layout of the whole of the statement of reasons and the use of different fonts, as well as from my experience of seeing statements of reasons in many other cases, that it was produced using a computer template of some kind. The sentence of explanation may therefore have simply been the result of an adoption of a standard formula in cases where a claimant has said that they are not intending to be present. Third, in the light of that, the sentence of explanation leaves it open to some doubt whether the tribunal of 28 January 2011 had looked at the reasons given by the claimant for requesting a hearing in her absence (which concentrated on specific and to some extent transient problems in her inability to travel far or to get the required medical evidence in support) and whether it had considered the claimant’s choice as conclusive, rather than just one factor (albeit a powerful one) in the consideration of the interests of justice. On the other hand, no elaborate explanations can be necessary as a matter of law and it plainly arguable that the substance of the interests of justice test were applied and that it was enough to indicate that there was nothing to outweigh the claimant’s freely expressed choice. It is fortunate that I did not need to come down one way or the other. However, the President of the War Pensions and Armed Forces Chamber may wish to consider the terms of any standard templates for statements of reasons that are used by First-tier Tribunal judges and possibly the terms of the listing information questionnaire that is sent to appellants, which does not seems to have altered after the coming into operation of the Tribunal Procedure (First-tier Tribunal) (War Pensions and Armed Forces Chamber) Rules 2008 in November 2008, with their specific provisions about hearings in rules 25 and 29.

 

Conclusion

44. For the reasons given above, and specifically that identified in paragraphs 36 and 37 above, the decision of the tribunal of 28 January 2011 must be set aside as involving an error on a point of law. The error identified in paragraphs 36 and 37 (failure to deal with the claimant’s case on worsening caused by a return to full clinical duties after February 2007) is sufficient on its own to justify that outcome, without having to decide whether the error in taking account of the award to the claimant under the Service Pensions order in breach of section 5B(b) of the 1943 Act (paragraphs 22 and 23 above) was material to the decision, whether the tribunal ought to have considered the possible application of article 8(1)(b) of the AFCS Order (paragraphs 32 and 33 above) or whether it had given a sufficient explanation of the exercise of the discretion under rule 29 of the First-tier Tribunal Procedure Rules to proceed with the hearing in the claimant’s absence (paragraphs 41 to 43 above).

 

Directions

45. The claimant’s appeal against the Secretary of State's decision issued on 7 September 2009 is remitted to a First-tier Tribunal for reconsideration in accordance with the following directions. No-one who was a member of the tribunal of 28 January 2011 is to be a member of the new tribunal that reconsiders the claimant's appeal. There must be a complete rehearing of the appeal on the evidence produced and submissions made to the new tribunal, which will not be bound in any way by any findings made or conclusions expressed by the tribunal of 28 January 2011. I direct that there is to be an oral hearing, because issues are likely to arise on which the new tribunal will need to hear oral submissions on behalf of the Secretary of State, whether or not the claimant attends or is represented. I am sure that the new tribunal would be greatly assisted if the claimant were able to attend the hearing to give evidence and to answer questions in person, whether or not she obtained representation from some organisation such as the Royal British Legion. I direct that the appropriate judge of the First-tier Tribunal is to consider whether to issue directions (a) to obtain up to date information from the claimant about her ability to attend a hearing either at a regular tribunal venue or at some other venue and (b) laying down a timetable for the production by the Secretary of State of the written submission and additional evidence directed below and for any written reply by or on behalf of the claimant.

 

46. Before the rehearing the Secretary of State is, in accordance with any timetable laid down under the previous paragraph, to make a fresh written submission dealing with the possible application in the present case of article 8(1)(b), (3) and (4) of the AFCS Order (see paragraph 32 above) and with the application of article 8(1)(c) and (5) in the light of the construction set out in paragraphs 25 to 31 and 34 to 38 above. The Secretary of State is also at the same time to provide copies of all available service and other medical records relevant to the state of the claimant’s knees going back to the beginning of her service that are not already in the statement of case and all available evidence as to her PULHEEMS grading throughout and the periods in which was or was not working and when working, subject to what restrictions (see paragraph 37 above).

 

47. The new tribunal must follow the approach of law set out above and in particular the approach to the “double compensation” issues in paragraphs 19 to 22 and to the interpretation of article 8(1)(c) and (5) of the AFCS Order in paragraphs 25 to 31 and 34 to 38. It must consider

the possible application of article 8(1)(b), (3) and (4) in the light of the submissions made to it. The evaluation of all the evidence will be entirely a matter for the judgment of the members of the new tribunal. The decision on the facts in this case is still open.

 

 

 

 

(Signed on original):  J Mesher

  Judge of the Upper Tribunal  

 

Date: 13 December 2012