Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CAF/684/2014

ADMINISTRATIVE APPEALS CHAMBER

Before Upper Tribunal Judge Rowland

Decision:  The claimant’s appeal is allowed.  The decision of the First-tier Tribunal dated 1 October 2013 is set aside and the case is remitted to be re-decided by a differently-constituted panel of the First-tier Tribunal.  I further direct that the proceedings before the First-tier Tribunal be stayed until the Secretary of State makes a further submission to the First-tier Tribunal or the First-tier Tribunal directs that the stay be lifted.

REASONS FOR DECISION

1. The claimant appeals, with permission granted by the First-tier Tribunal, against a decision of the First-tier Tribunal dated 1 October 2013 dismissing his appeal against a decision of the Secretary of State dated 3 August 2011 to the effect that the claimant, a junior rating in the Royal Navy, was not entitled to an award under the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011 (SI 2011/517) in respect of injuries he suffered in a road traffic accident on 2 December 2009.

2. The First-tier Tribunal stated in its standard preliminary paragraphs that the burden of proof lay on the claimant and the standard of proof was the balance of probabilities.  It explained its decision thus –

“[The claimant] was hit by a car on 2nd Dec 2009 on a public road. He was in Phase II training, having joined some 7 months previously and was aged just under 17½ years old. At the time of the accident, he and other trainees had attended a 'gig' at the Sports Pavilion attached to HMS Collingwood They had been taken there by Service transport but had to find their own way back; [the claimant] had to be back by 23:59 as he was under 18 years old. His route on returning was to exit the Sports Ground, cross the public road via a Pelican crossing, walk a short distance along a path and enter HMS Collingwood through the Main Gate and hence to his accommodation. The accident happened in the vicinity of the Pelican crossing. [The claimant] has such severe injuries that he has no recollection of the accident.

The papers supplied today have short 'statements' from fellow trainees although their names have been redacted. Mr Coyle for [the claimant] sought an adjournment for the MOD to contact these individuals to obtain their consent to give statements about the circumstances of their attendance at the 'gig'. He wanted to pursue the possibility that the trainees were 'under orders' as described in Article 11(8)(a) to attend this social function so that the accident could be brought within this exception. We declined to do so. It may be that the putative witnesses would not wish to give evidence relating to these events which happened nearly 4 years ago. It is speculative whether their evidence would support such a theory. It was common ground that there were no 'orders' in the normal sense i.e there would be disciplinary action for not following them. At the highest, the trainees might have felt under some pressure from their PT instructors to 'beef up' the audience at the gig where one of the instructors was playing in the band. There is possibly a debate over what constitutes "an order", but we do not find that such a scenario fits this description, particularly when measured against other sub-sections in Article 11 and particularly in Article 11(b) [sic]. Further, there is nothing in the Ships Learning Account documents which suggests any element of compulsion to attend this gig. We therefore find that this injury falls within the exclusion set out in Article 11(b)(a) [sic] and the appellant has not met the burden and standard of proof above.

Although we do not have to consider other aspects of this appeal having made this finding, there are other difficulties with this claim. Service has to be the predominant cause of the injury, and there were other causative factors which contributed to the accident. There are issues about 'duty of care', but this concept is not addressed by the AFCS. Any issue of possible negligence and breach of the duty of care should be pursued in another forum.”

3. The bundle of documents submitted at the hearing consisted of over 100 pages – twice the size of the original bundle – that had been sent to the claimant about a month earlier by the Royal Navy, in reply to a request made some seven months before that.  It is unfortunate that the documents were not sent to the Secretary of State or the First-tier Tribunal before the hearing but it appears that the claimant was not able to provide the documents to Mr Coyle of the Royal British Legion, his representative, until about a week before the hearing.  It was in fact the Secretary of State who first applied for an adjournment, because his representative wished to be able to consider the documents properly. 

4. When I issued case management directions, I made the following observations –

“It seems irrational to refuse an adjournment for the purpose of obtaining statements from witnesses to support a case on the ground that, in the absence of such statements, there is no evidence supporting the case.  It is also arguably wrong to refuse an adjournment for that purpose on the ground that a witness might not wish to give evidence, without ascertaining whether that is in fact so or considering whether issuing a summons might be appropriate.

However, it is justifiable to refuse an adjournment if there is good reason to suppose that the witnesses’ evidence would not be relevant.  Therefore, if the First-tier Tribunal was right in understanding it to be “common ground that there were no ‘orders’ in the normal sense i.e. there would be disciplinary action for not following them” and in considering that pressure from a physical training instructor would not constitute an order for the purpose of article 11(8)(a), the First-tier Tribunal’s decision was arguably defensible. 

The drafting of article 11 is not as clear as it might be.  Article 11(8)(a) purports to be an “exclusion”, but does it imply that benefit is payable in respect of an injury caused by reason of attendance at a social event if attendance was required by an order, irrespective of the negligence of a third party?  Or is the effect of an order to attend a social event that it becomes “work” so that payment is excluded by article 11(1) if a claimant is injured while travelling to or from the event?  The First-tier Tribunal referred to “predominant cause”, presumably a reference to article 8(2).  Was that relevant?  If the only reason the claimant was on the road was because he was returning to his accommodation from a social event, it is arguable that the only question was whether payment of benefit in respect of his injury was precluded, or alternatively required, by article 11(1) or (8). Is EW v Secretary of State for Defence [2011] UKUT 186 (AAC); [2012] AACR 3 relevant? 

Although probably not relevant to the present case, does article 11(8)(b) make any sense as currently drafted?  What is it intended to achieve?”

5. The Secretary of State concedes that the refusal to adjourn was irrational and does not seek to defend it.  He wishes the case to be remitted to the First-tier Tribunal because he still wishes to seek advice on the meaning of article 11 and to investigate the facts.  It is submitted that “[s]uch investigations could have the potential to effect the negating of the appeal.”  Mr Coyle agrees that the case should be remitted.

6. I am satisfied that the expressed ground for refusing the adjournment was irrational and that the final decision was therefore wrong in law.  I am also prepared to remit the case without giving any further consideration to the meaning of article 11, but only because such consideration would best take place against the background of clear findings of fact and I accept the parties’ contention that it is at least possible that some of the material in the new documents merits further investigation, the consequence of which might conceivably be the Secretary of State reviewing his decision under article 59 of the 2011 Order. 

7. Meanwhile, the Secretary of State may wish to consider amending article 11 so as to make it comprehensible to his own officials, to potential claimants and to judges.

Mark Rowland

30 April 2014