Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CAF/4231/2013

ADMINISTRATIVE APPEALS CHAMBER

 

 

1. This is an appeal by the Secretary of State, brought with the permission of the then President of the First-tier Tribunal (War Pensions and Armed Forces Compensation Chamber), against a decision of a First-tier Tribunal sitting at Birmingham on 17 July 2013. For the reasons set out below that decision was in my judgment wrong in law. I allow the appeal, set aside the First-tier Tribunal’s decision and remit the matter for redetermination by an entirely differently constituted First-tier Tribunal. I draw the attention of the First-tier Tribunals Service to the last sentence of paragraph 22 below.

 

2. The Claimant is a man now aged 50 who served in the RAF, rising to the rank of squadron leader, between 1999 and his discharge last year by reason of arthritis. He served in the capacity of nursing officer. Before that he worked for 15 years in the NHS.

 

3. On 4 November 2011 he made a claim under the Armed Forces Compensation Scheme 2011 in respect of symptoms of mental disorder, akin to post traumatic stress syndrome (PTSD), which he said started in September 2005 and continued down to 2011, and which he claimed to be due to service in Iraq between 6 July and 12 October 2005.

 

4. By a decision made on 24 June 2012 the Claimant was awarded benefit in respect of PTSD under Item 6 of Table 3 (tariff level 14), on the footing that his mental disorder had lasted more than 6 but less than 26 weeks. However, that decision was revised on 24 February 2013 and an award under Item 5 of Table 3 (tariff level 13) was substituted, on the basis that his mental disorder had lasted more than 26 weeks, but less than 2 years.

 

5. The Claimant appealed, contending that the symptoms of his illness had “continued until 2011, when effective EMDR was used”, and thus that he should have been placed in Item 3 of Table 3 (tariff level 10), on the basis that his mental disorder had continued for more than 5 years.

 

6. The FTT, following an oral hearing at which the Claimant gave evidence, allowed the appeal and found that the descriptor which should have been applied was that in Item 3 of Table 3. The FTT’s reasons were succinct:

 

“The Tribunal accepts the medical evidence dated 18 January 2007 that the appellant was not displaying symptoms of PTSD at that time and was able to deploy. The appellant was also seen on 1 September 2008 when he was found to have a mental state which was related to medication for arthritis, at the time there was no evidence of active PTSD.

 

The Tribunal accepts the medical notes from DCMH Donnington dated 2011 which confirm that the appellant suffered re-emergency of post traumatic symptoms in 2011 which related back to the incidents in Iraq in 2005. The condition was treated with EMDR which were found to be successful.

 

The Tribunal notes that that Report dated 2008 referred to no active PTSD rather than that the condition had totally resolved. Similarly, the 2007 Report refers to the appellant being apparently symptom free rather than a conclusion that he no longer suffered from the condition.

 

The Tribunal finds that the re-emergence of the condition pre 2011, to the extent that EMDR was regarded as clear evidence that the appellant continued to suffer from PTSD, relating to the original 2005 incident, but that the condition was under control until its re-emergence in 2011. The Reports in 2011 make no mention of any fresh traumatic event, but refer to the same traumatic event as that which initially caused the condition.

 

The Tribunal is satisfied that the appellant has suffered from PTSD which has caused functional limitation which has continued for 5 years.”

 

7. It seems to me that there must be some sort of clerical error in the first sentence of the penultimate paragraph of the FTT’s reasons. There appear to be some words missing. I think that it must have been intended to read: “The Tribunal finds that the re-emergence of the condition pre 2011, to the extent that EMDR was necessary, was regarded as clear evidence ……” (underlined words added). In addition, it would seem that the reference to “pre 2011” must have been a slip, as on the FTT’s findings the condition did not re-emerge until 2011.

 

8. The Secretary of State appeals on the following grounds. First, it is contended that the FTT went wrong in law, on the facts found by it, in holding that Item 3 of Table 3 applied. The Secretary of State contends that the FTT’s finding that the Claimant was “symptom free” and that “the condition was under control” between January 2007 and 2011 meant that the FTT could not properly hold that the Claimant had suffered from “mental disorder, causing functional limitation or restriction, which has continued … for 5 years.” Secondly, it is contended that if and in so far as, in the last paragraph of its reasons, the FTT was intending to find that the Claimant’s PTSD did cause “functional limitation” during that intervening period, its decision was irrational and inconsistent with its earlier findings to which I have just referred. The Secretary of State submits that I should set aside the First-tier Tribunal’s decision and re-make that decision to the effect that the Claimant’s injury fell within item 5 in Table 3.

 

9. I held an oral hearing of this appeal, at which the Secretary of State was represented by Miss Galina Ward, of counsel, and the Claimant appeared in person.

 

The 2011 Scheme

10. The following provisions of the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011 are directly material.

 

“5(3) The term “functional limitation or restriction” in relation to a descriptor means that, as a result of an impairment arising from the primary injury or its effects, a person –

(a) has difficulty in executing a task or action; or

(b) is required to avoid a task or action because of the risk of recurrence, delayed recovery, or injury to self or others.

 

(4) Subject to paragraph (5), a reference in a descriptor to duration of effects means from the date of injury.

 

(5) In Tables 3 and 4 of the tariff a reference in a descriptor to duration of effects means from the date the claimant first sought medical advice in respect of the mental   or physical disorder.

 

(6) Functional limitation or restriction is to be assessed by –

(a) taking account of the primary injury and its effects; and

(b) making a comparison between the limitation and restriction of the claimant and the capacity of a healthy person of the same age and sex who is not injured or suffering a health condition.

 

8(1) ………benefit is payable to or in respect of a member or former member by reason of an injury which is caused (wholly or partly) by service where the cause of the injury occurred on or after 6 April 2005.

 

16(1) Subject to articles 25 and 26 –

(a) benefit for injury is payable only in respect of an injury for which there is a descriptor;

(b) where an injury may be described by more than one descriptor, the descriptor is that which best describes the injury and its effects for which benefit has been claimed; and

(c) more than one injury may be described by one descriptor.”

 

 

11. Schedule 3 to the 2011 Order includes Table 3, as follows:

 

“Table 3 – Mental disorders (*)

Item Column (a) Column(b)

Level Description of injury and its effects (“descriptor”)

 

1 6 Permanent mental disorder, causing severe functional limitation or restriction. (a)

 

2 8 Permanent mental disorder, causing moderate functional limitation or restriction. (b)

 

3 10 Mental disorder, causing functional limitation or restriction, which has continued, or is expected to continue for 5 years.

 

4 12 Mental disorder, which has caused, or is expected to cause functional limitation or restriction at 2 years, from which the claimant has made, or is expected to make, a substantial recovery within 5 years.

 

5 13 Mental disorder, which has caused, or is expected to cause functional limitation or restriction at 26 weeks, from which the claimant has made, or is expected to make, a substantial recovery within 2 years.

 

6 14 Mental disorder, which has caused, or is expected to cause functional limitation or restriction at 6 weeks, from which the claimant has made, or is expected to make, a substantial recovery within 26 weeks.

 

(*) In assessing functional limitation or restriction in accordance with article 5(6) account is to be taken of the claimant’s psychological, social and occupational function.

(*) Mental disorders must be diagnosed by a relevant accredited medical specialist.

(a) Functional limitation or restriction is severe when the claimant is unable to undertake work appropriate to experience, qualifications and skills at the time of onset of the illness and over time able to work only in less demanding jobs.

(b) Functional limitation or restriction is moderate where the claimant is unable to undertake work appropriate to experience, qualifications and skills at the time of onset of the illness but able to work regularly in a less demanding job.”

 

Analysis and Conclusions

12. In my judgment the FTT’s decision was wrong in law, firstly, in saying what it did in the last paragraph of its reasons set out in para. 6 above, without elaborating further on what it meant. On the face of it the statement in that paragraph that the PTSD “caused functional limitation which has continued for 5 years” is inconsistent with the earlier findings. If the FTT intended to say that during the period between January 2007 and what it found to be the recurrence of PTSD symptoms in 2011 (a period which I shall refer to for convenience as “the period of remission”) the Claimant did continue to suffer symptoms which amounted to “functional limitation”, it in my judgment needed to explain what those symptoms were, why they amounted to “functional limitation”, and what evidence it relied upon.

 

13. If the FTT’s intended meaning was that, although there were no symptoms (or no symptoms amounting to “functional restriction or limitation”) during the period of remission, the fact that the mental disorder was latent and capable of “resurfacing” and causing functional limitation means that the disorder must for the purpose of Table 3 be treated as having continued during the period of remission, then in my judgment the Secretary of State is right in submitting that that conclusion involved a misconstruction of the legislation.

 

14. In my judgment the Secretary of State is right in submitting that, for the purposes at any rate of Items 3 to 6 of Table 3, the length of time for which a mental disorder has continued is to be determined by the length of time for which it causes “functional limitation or restriction”. That seems to me to be the plain meaning of (in the example of Item 3) the wording “mental disorder, causing functional limitation or restriction, which has continued, or is expected to continue for 5 years.” The first note at the end of that Table makes clear that in assessing functional limitation or restriction account is to be taken of the claimant’s psychological, social and occupational function, and Article 5(3)(b) provides that functional limitation or restriction includes a need to avoid a task or action because of the risk of recurrence. But if there was no functional limitation or restriction during the period of remission, the mere fact that the disorder was latent and capable of resurfacing did not in my judgment mean that it was required to be treated as continuing during the period of remission.

 

15. However, it of course by no means follows that a mental disorder must be regarded as not enduring, for the purpose of Table 3, during periods when it causes no actual symptoms. For one thing, even if a claimant has periods when his mental disorder causes no actual symptoms, it may still cause “functional limitation or restriction” if the known likelihood of its recurrence causes him to avoid a task or action. He may be obliged, for example, to avoid particular types of employment, or other ongoing commitments, owing to the risk of recurrence. It seems to me that the words “is required to avoid a task or action because of the risk of recurrence” in Article 5(3) include not only the case where the task is avoided because of the risk that the mere fact of undertaking it might precipitate a recurrence, but also the case where in all the circumstances it would be unwise for the claimant to commit himself to undertake the task because he would be unable to perform it if he did suffer a recurrence, or because attempting to perform it might render the recurrence worse than it would otherwise have been.

 

16. But even apart from the point which I made in the previous paragraph, it seems to me that a common sense view must be taken, in the case where there are short periods of remission, as to whether the “functional limitation or restriction” has continued throughout the duration of the illness, including the periods of remission. It is difficult to conceive that periods of, for example, a week during which there were no symptoms could properly lead a decision maker or tribunal to find that the mental disorder did not, for the purpose of Table 3, endure throughout.

 

17. However, if one ignores the last paragraph of the FTT’s reasons, on which I have already commented, the FTT’s findings in the present case appear to have been that the symptoms of the claimant’s disorder endured for some 18 months and then abated for in excess of 4 years. If there was no functional limitation or restriction for a period of that length, I am, as I have said, unable to see how the FTT could properly have held that mental disorder endured, for the purpose of Table 3, during the period of remission or quiescence, and therefore endured for 5 years.

 

18. The wording of Table 3, taken in conjunction with Article 5, in my judgment makes plain that the mere fact that there are some continuing symptoms does not mean that the mental disorder must be regarded as having continued. The question is to be judged by reference to whether there is “functional limitation or restriction”. There is possibly some tension between the requirement that the disorder causes “functional limitation or restriction” and the statements in Table 3 that the duration of the disorder is to be determined by reference to when there is, or is expected to be, “substantial recovery”. In other words, what is the position if the claimant still continues to suffer some functional limitation or restriction, but nevertheless can be considered to have made a “substantial recovery”? In my view the concept of “substantial recovery”, as referred to in Table 3, must be regarded as an absolute one, in the sense that it is not to be judged by reference to the initial severity of the disorder. It would plainly be unfair if a claimant whose initially very severe disorder substantially abates were to be in a less favourable position under the Scheme than one whose disorder was initially much less severe. In my judgment the only sensible construction is that any functional limitation or restriction which is more than minimal is “functional limitation or restriction” for the purpose of Items 3, 4, 5 and 6 of Table 3 and cannot be ignored, and therefore that a person who continues to suffer more than minimal functional limitation or restriction cannot be regarded as having made a “substantial recovery”. I think that that conclusion is consistent with what Elias LJ said, with reference to the Tables in the 2005 Order generally, in paras. [90] to [93] of Secretary of State for Defence v Duncan and McWilliams [2009] EWCA Civ 1043; [2010] AACR 5. However, Elias LJ said in para. [93] that he tended to agree that the concept of “more than trivial” used by the Upper Tribunal in that case would be no different to the concept of a “moderate” limitation or restriction, which is used in some of the other Tables in the 2011 Order, and is in fact used in Item 2 of Table 3, in the case of a permanent mental disorder. However, that particular statement of Elias LJ in para. 93 cannot in my judgment be applied to Table 3 in the 2011 Order, which (unlike the Table 3 to the 2005 Order) specifically provides, in note (b), that functional limitation is “moderate” where the claimant’s work capability is affected to the extent there specified. As already noted, an earlier note to Table 3 specifically states that in assessing functional limitation or restriction account is to be taken not only of occupational, but also of psychological and social function. It must follow that the (unqualified) “functional limitation or restriction” referred to in Items 3 to 6 of Table 3 may include disabilities which would not qualify as “moderate functional limitation or restriction” for the purpose of Item 2.

 

19. On the footing, as I have held, that on its findings of fact the FTT was wrong to hold that the Claimant’s disorder continued during the period of remission, it must in my judgment follow that when the symptoms of the disorder did recur in 2011, that resulted in a separate injury for the purposes of the 2011 Scheme, for which the Claimant was also entitled to be compensated in accordance with the Scheme. I am unable to see anything in the 2011 Order which would prevent a recurrence of a mental illness being regarded as a further “injury”. If, as in the present case, the claim is not made until after the recurrence, then the provisions of the Scheme must be applied by the decision maker or FTT as if there were a separate and subsequent “injury” caused by the same “incident” as caused the previous injury. If both the injuries are mental disorders within Items 4 to 6 of Table 3 (i.e. resulting in an awards at less than Level 11), the provisions of Article 22(4) would appear to apply, leading to 80% of the relevant amount being payable in respect of the lower rated episode of the disorder. If the recurrence does not occur until after the initial decision on the claim, the review provisions in Articles 56 to 59 may be applicable. If they are not, the claimant will be able to make a further claim in respect of the recurrence, provided that he is not out of time, taking into account the provisions relating to “late onset illness” in Articles 3 and 48.

 

20. The Claimant’s contention before the FTT, and in this appeal, was that some symptoms in fact continued throughout, and that he was therefore in any event entitled, whatever the correct meaning and effect of the descriptors in Table 3, to an award on the basis of Item 3 in Table 3. In my judgment the FTT’s decision was further wrong in law in not sufficiently considering the evidence relevant to the issue whether the Claimant continued to suffer functional limitation or restriction throughout the period.

 

21. For the reasons mentioned in paras. 17 and 18 above, I cannot properly accept the Secretary of State’s invitation to re-make the FTT’s decision by dismissing the Claimant’s appeal to the FTT, thus leaving on foot the decision maker’s revised award on the basis of Item 5 of Table 3. The matter must be remitted to a new FTT. The new FTT which will therefore need to consider the Claimant’s contention that some symptoms continued throughout and the medical evidence relevant to them, in detail, in order to decide whether the Claimant continued to suffer functional limitation or restriction. The difference between an award on the basis of Item 3 of Table 3, and an award on the basis of one or more injuries falling within Items 5 or 6, is of course potentially significant, having regard to the fact that Item 3 leads to an award at Level 10, potentially qualifying for a guaranteed income payment.

 

22. The Secretary of State further submits that, because one of the notes to Table 3 contains the requirement that “mental disorders must be diagnosed by a relevant accredited medical specialist” (now by amendment a consultant clinical psychologist or psychiatrist), if the symptoms have subsided to such a degree that the relevant professional considers that a mental disorder was no longer present, any remaining functional limitation or restriction cannot be regarded as being caused by a mental disorder. I do not regard the precise meaning and effect of that note as necessarily straightforward. In particular, I am not clear whether the note has the effect that a FTT’s decision making powers may in effect be greater if the tribunal includes an accredited specialist than if it does not. I prefer to express no view on the ramifications of that note. It may be that the new tribunal should sensibly include an accredited specialist.

 

 

 

Charles Turnbull

Judge of the Upper Tribunal

8 September 2014