CAF/2901/2014

[CORRECTED]

DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

Decision

1. This appeal by the claimant succeeds. In accordance with the provisions of section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007 I set aside the decision of the First-tier Tribunal (WPAFC Chamber) sitting at Birmingham on 4^th February 2014 made under reference AFCS/00697/2013. I substitute my own decision. This is to the effect that compensation of £6000 (level 13) should be paid in respect of the injury referred to below, because it is covered by descriptor 27 of table 9 of Schedule 3 to The Armed Forces and Reserve Forces (Compensation Scheme) Order 2011 (“the Scheme”).

2. I refer to the Secretary of State questions relating to calculation and payment of any arrears on the above basis.

Background and Procedure

3. The claimant was born on 15^th November 1979. He has served in the army since 9^th November 2009. He was obliged to maintain fitness and his account is that after running for this purpose on a particular day in December 2009 he found that he could not walk and was taken to the medical centre at ATR Pirbright. Then, in January 2011 he was running with his squadron and after 20 minutes had to stop because he felt the same pain. It appears that his left knee had been damaged and on 15^th March 2012 he had surgery under general anaesthetic – a left knee arthroscopy - at Frimley Park Hospital. On the same day he made a claim under the Scheme.

4. There was a medical board on 5^th September 2012 which recorded that the arthroscopy had shown “minor chondral damage to lateral femoral condyle and lateral tibial plateau”. The claimant was receiving physiotherapy but not taking any analgesia. He still had pain in the back of his left knee following walking or impact PT. The Board concluded that he would be unable to walk significant distances. At the time he was employed as a clerk in a sedentary role. The Board reached certain conclusions on what he would and would not be able to do.

5. On 22^nd January 2013 the Secretary of State decided that the claimant’s injury was not due to service because it happened while on Christmas leave and there was no record of him sustaining any injury in phase 1 or phase 2 training. On 25^th January 2013 the claimant requested reconsideration of this decision. On 7^th June 2013 the Secretary of State decided that the claimant’s condition was accepted as caused by service and made a lump sum award of £1200 under “Tariff 15”. I consider the tariff further below. On 12^th June 2013 he claimant appealed to the First-tier Tribunal against that decision of the Secretary of State.

6. On 4^th February 2014 the First-tier Tribunal considered the appeal and confirmed the decision of the Secretary of State. The claimant did not attend but was represented by the Royal British Legion. On 1^st May 2014 Upper Tribunal Judge Bano, sitting as a judge of the First-tier Tribunal, refused the claimant permission to appeal to the Upper Tribunal on the basis that the term operative treatment “is used to calibrate the seriousness of the injury”. The claimant now appeals by my permission given on 9^th July 2014. There was a delay while consideration was being given to hearing this appeal together with another appeal that raised overlapping issues. In the event it was decided not to do this.

7. The Secretary of State opposes the appeal and supports the decision of the First-tier Tribunal. Neither party wishes to have an oral hearing of the appeal.

The Scheme and Tariff

8. The Scheme provides for compensation in respect of an injury caused wholly or partly (but predominantly) by service where the cause occurred on or after 6^th April 2005. Descriptors and amounts are set out in Schedule 3 to the Scheme. Subject to exceptions which are not relevant in this case, article 16(1)(b) provides that:

16(1)(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 the benefit has been claimed.

9. Table 9 of Schedule 3 applies to musculoskeletal disorders (including any expected consequential osteoarthritis). The Secretary of State decided that the claimant’s condition came within descriptor 37 of table 9:

37. Anterior pain syndrome in one knee which has caused, or is expected to cause, significant functional limitation or restriction at 6 weeks, from which the claimant has made, or is expected to make, a substantial recovery beyond that date.

Compensation in respect of that descriptor is at level 15, which is specified as £1200. The claimant has been arguing that the compensation should be at level 13 (specified as £6000) in respect of descriptor 27 of table 9:

27. Hip, pelvis, knee, ankle, shoulder, elbow or wrist strain, sprain or overuse injury, which has required, or is expected to require, operative treatment.

The First-tier Tribunal Decision

10. I quote paragraph 9 of the First-tier Tribunal statement of reasons in full. This is what the tribunal referred to as its findings of material fact but what was actually the whole of its consideration of the substantive issue:

i. The appellant’s knee injury [has] been placed at Table 9 Item 37 Level 15. There is no dispute that the issue in this case is whether the arthroscopy that the appellant underwent to his knee amounted to operative treatment or whether he is expected to require operative treatment in the future.

ii. Although the arthroscopy involved a general anaesthetic and the consent form indicated it was intended to be diagnostic and therapeutic, in reality only a minor deformity was found and no “treatment” was performed. Therefore the appellant is correct to say that he underwent an operation, but not that this was operative treatment

iii. The arthroscopy revealed minor chondral damage. We consider that this was not likely to lead to the need for further operative treatment.

The Arguments

11. On behalf of the claimant, the Royal British Legion argues that the First-tier Tribunal did not take account of what transpired after the surgery. The claimant set this out in his application for permission to appeal to the Upper Tribunal, but it does not seem to have been before the First-tier Tribunal. As he put it, “After the surgery I was immobilised for a week at which time I was advised not to drive. I had to walk with the aid of crutches and constantly taking pain reliefs”. He argued that the recovery procedure would have been the same whether or not “treatment” was performed. The Royal British Legion expresses it in this way (pages 127 to 130 of the Upper Tribunal file):

“The purpose of the arthroscopy was to look inside the knee, establish the cause of the problem and, if feasible to put it right. That was the proposed operative treatment and, it is submitted, the fact that it was not successful does not mean it was not required for the purposes of the relevant descriptor. … It would be absurd and cannot have been intended that a claimant whose operative treatment has successfully ameliorated the effects of his injury should receive a higher award that a claimant whose operative treatment has not done so…”.

12. The Secretary of State’s only real substantive argument (pages 119 to 122) is that the First-tier Tribunal is an expert tribunal whose decisions should be respected (although no reference is made to the expert nature of the Administrative Appeals Chamber of the Upper Tribunal!).

Conclusions

13. In essence I agree with Royal British Legion. The whole purpose of the scheme is compensation. It is not only a matter a calibrating the seriousness of an injury but also considering its effects. Any arthroscopy involves the trauma of surgery and the difficulties of recovery. I accept that the First-tier Tribunal is an expert tribunal and that is reflected in their control of the findings of fact, which are not challenged in this appeal. However, the meaning of a descriptor in the scheme is a question of law – this has been demonstrated time and again by Upper Tribunal decisions interpreting the descriptors in the incapacity benefit and ESA schemes.

14. In my opinion, for the purposes of descriptor 27 “operative treatment” includes an arthroscopy (which nobody disputes is an operation) carried out for the purposes of treatment, whether or not any treatment beyond the diagnostic or investigative takes place.

H. Levenson

Judge of the Upper Tribunal

23^rd April 2015

[CORRECTED WITH APOLOGIES FOR THE ORIGINAL ERROR]

2^ND OCTOBER 2015