DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

 

The DECISION of the Upper Tribunal is to allow the appeal in CAF/2049/2014 and to agree the Consent Order in CAF/3835/2014.

 

In Upper Tribunal appeal CAF/2049/2014 the decision of the Southampton First-tier Tribunal dated 4 December 2013 under file reference AFCS/00288/2012 involves an error on a point of law and is set aside. The Appellant’s appeal is remitted for re-hearing by a new First-tier Tribunal subject to the directions set out in the reasons below (at [26]).

 

In Upper Tribunal appeal CAF/3835/2014 the terms of the Consent Order are set out in the reasons below (at [29]).

 

This decision is given under section 12(2)(a) and 12(2)(b) of the Tribunals, Courts and Enforcement Act 2007 and rule 39(1) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2685).

 

 

 

REASONS FOR DECISION

 

The common issue in these two appeals

1. The common issue in these two appeals is the proper interpretation of the criteria to qualify for compensation under Item 2 of Table 9 of Schedule 3 to the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011 (SI 2011/517). The relevant ‘descriptor’ (i.e. according to the sub-heading in the Tariff, the ‘Description of injury and its effects’) now reads as follows:

 

“Septic arthritis or other pathology requiring arthrodesis, osteotomy or total joint replacement.”

 

2. In summary, the Secretary of State for Defence argues that the phrase “or other pathology” has to be read in the context of the preceding words, “septic arthritis”, and so means some other infection or disease such as septic arthritis. The Appellants argue that there is no warrant for reading the expression so narrowly; hence “other pathology” means simply “some other abnormality”, regardless of whether or not it is akin to septic arthritis.

 

3. For the reasons that follow, I agree with the interpretation advanced by the Secretary of State. I acknowledge that there is some ambiguity in the statutory drafting, but the only way to make sense of Item 2 of Table 9 in its wider context and its purpose is to adopt the narrower construction proposed by the Respondent.

 

The oral hearing of these two appeals

4. The two appeals in question concern Mr D and Mr W, who are both ex-servicemen. I held an oral hearing of their appeals at Field House on 21 May 2015. Mr Glyn Tucker, Senior Pensions and Compensation Officer at the Royal British Legion, represented both Appellants (Mr W attended with his partner, but Mr D was unable to attend). Mr Adam Heppinstall of Counsel appeared for the Secretary of State, instructed by the Government Legal Department. I am indebted to Mr Tucker and Mr Heppinstall, both for their careful and well-focussed written and oral submissions and for their helpful work (and doubtless also the work of others) in refining the issues to be resolved in these proceedings.

 

The factual background

5. For present purposes the material facts are not in dispute, so they need only be summarised very briefly. At the relevant times Mr D and Mr W served in Afghanistan and Iraq respectively.

 

6. Mr D had the singular misfortune to be involved in two separate IED incidents on consecutive days when on active service in Afghanistan; on the second occasion he was thrown in the air and landed in a ditch. He suffered a traumatic head injury, a lower back injury and shrapnel wounds; he later developed PTSD. So far as his back injury was concerned, for which he underwent spinal fusion, an award of compensation was made on the basis that he met the criteria for Item 16A of Table 9:

 

“Traumatic back injury with one or more intervertebral disc prolapses or vertebral body or facet joint fractures which has required, or is expected to require, operative treatment and which has caused, or is expected to cause, significant functional limitation or restriction beyond 13 weeks.”

 

7. Mr W, whilst serving in Iraq, suffered a disc prolapse at L5/S1 level causing chronic low back pain and sciatica due to weight carriage. He later underwent a spinal fusion operation. He too was made an award of compensation on the basis that he met the criteria for Item 16A of Table 9.

 

8. I simply observe that Item 16A of Table 9 is Tariff level 12 (£10,000), whereas Item 2 of Table 9 is Tariff level 9 (£40,000).

 

9. Both Mr D and Mr W appealed to the First-tier Tribunal, arguing that their placement at Item 16A of Table 9 did not properly reflect the severity of their respective back injuries. In both cases the First-tier Tribunal dismissed their appeals.

 

Mr D’s appeal at the First-tier Tribunal

10. In Mr D’s appeal the First-tier Tribunal decided (by a majority) that Item 16A of Table 9 was the appropriate descriptor. The majority (the tribunal judge and service member) expressed their reasoning as follows (I have added the word ‘not’ in the second sentence, as both parties are agreed its omission was a mere slip of the keyboard):

 

“As to Item 2 we find that this is not appropriate. Firstly, it does [not] refer to traumatic back injury. Secondly, it refers to ‘septic arthritis or other pathology’. The phrase ‘other pathology’ must be read as meaning other pathology in the same category or type of septic arthritis i.e. such as disease or infection. When the Tariff includes describing traumatic back injury (as happened here) it is not appropriate to search for a higher Tariff which applies to medical conditions of a different nature.”

 

11. The minority (the medical member) dissented, giving his reasons as follows, and having cited the wording of the relevant descriptor for Item 2 of Table 9:

 

“The pathology (pages 56 & 164) is a Cytic spondylolisthesis of L5 on S1 and Cytic spondylolysis with bilateral pars defect of L5 and a disc bulge at L5/S1. The operation of fusion of L5/S1 (page 68) is an arthrodesis of L5/S1. Mr D meets the criteria for Table 9 Item 2.”

 

Mr W’s appeal at the First-tier Tribunal

12. In Mr W’s case the First-tier Tribunal – coincidentally chaired by the same tribunal judge as in Mr D’s appeal – decided unanimously that Item 16A of Table 9 was the appropriate descriptor. Its reasoning was as follows (emphasis as in the originaI, but I have corrected ‘native’ in the third sentence to ‘nature’ as a typographical error):

 

“We have been asked to consider Item 2 on Table 9. This refers to ‘septic arthritis or other pathology requiring arthrodesis, osteotomy or total joint replacement.’ This is not appropriate for a number of reasons. Firstly, ‘septic arthritis or other pathology’ suggests a group or class of pathologies of a similar [nature] (i.e. such as septic arthritis). This is not the case here. Secondly the reference to ‘arthrodesis, osteotomy or total joint replacement’ suggests a class or type of operative interventions which are normally associated with joint injury as opposed to spinal injury. Thirdly, a consideration of Table 9 as a whole reveals injuries to joints (usually listed as hips, knees, ankles, shoulders, elbows or wrists) as opposed to, and distinct from, injuries to the back. Fourthly, we are influenced by the fact that Table 9 includes a descriptor (at Item 16A) which precisely fits the circumstances of the Appellant’s injury. It is not appropriate or necessary therefore to search the Tariff for a descriptor which can only be applied by an unrealistic reading of the wording of the legislation.”

 

The Upper Tribunal’s analysis

Pathology: a question of definition

13. Mr Heppinstall for the Secretary of State readily acknowledged that Item 2 of Table 9 was unhappily worded in that it lacked clarity and precision, especially as regards the use of the word “pathology”. He acknowledged that Item 17 of the same Table was the product of better drafting (“Frozen shoulder, or other shoulder pathology, which has caused, or is expected to cause, significant functional limitation or restriction beyond 26 weeks”). Mr Tucker helpfully referred me to Black’s Medical Dictionary, which defines “pathology” as “the science which deals with the causes of, and changes produced in the body by, disease”. This is indeed the primary meaning of the word, but it cannot be what it means in Item 2 of Table 9, if only for the simple and obvious reason that such science of knowledge cannot itself require “arthrodesis, osteotomy or total joint replacement.” A secondary meaning of “pathology”, as Mr Heppinstall correctly noted, is as denoting the process or pathways of a given disease (as in “the pathology of cancer involves malignant cell growth...”). Again, this usage makes no real sense in the present context. It follows that in Item 2 of Table 9 the word “pathology” by itself can only be being used in its third sense, as a deviation from an otherwise healthy or normal condition, and so meaning (putting it neutrally) some abnormality.

 

14. The question then is whether “or other pathology” is to be construed narrowly or widely. Read narrowly, as Mr Heppinstall argues, it means, in effect, ‘or some other abnormality such as an infection or a disease akin to septic arthritis’. Read broadly, as Mr Tucker contends, it connotes simply ‘or some other condition or abnormality’ and is not qualified in any way by the preceding reference to septic arthritis.

 

An outline of the Appellants’ submissions

15. Mr Tucker argued that the majority decision in Mr D’s case and the unanimous decision in Mr W’s appeal had the effect of placing an unwarranted restriction on the clear wording of Item 2 of Table 9. The mere fact that Item 2 of Table 9 did not refer to back trauma did not necessarily exclude such injuries from its scope. As the minority member had correctly pointed out in Mr D’s case, Mr D had a medically diagnosed pathology of the back which had required arthrodesis (fusion), and so the condition fell within Item 2 of Table 9 on a plain reading of the descriptor. It was important that the words of the descriptor be read on their own terms. It might be that the intention of those drafting the legislation had been to confine Item 2 of Table 9 to cover pathology in the synovial joints (e.g. shoulder, elbow, wrist, knee and ankle), rather than joints of the vertebral column, but that was not what the legislation actually said. As Elias LJ observed in Secretary of State for Defence v Duncan [2009] EWCA Civ 1043 (at [86]), in relation to an earlier version of the Scheme,

 

“it cannot be the case that we can construe this Scheme in accordance with the unexpressed intentions of the draftsmen. Nor can any subsequent amendments be relevant to our interpretation”.

 

An outline of the Secretary of State’s submissions

16. Mr Heppinstall accepted that the Scheme cannot be construed in accordance with the unexpressed intentions of those responsible for its drafting. However, his principal submission was that for two reasons it was in any event sufficiently clear from the wording and structure of Table 9 as a whole that Item 2 does not extend to the effects of traumatic back injury. First, “or other pathology” must be understood in the context of the specific condition that is expressly referred to, namely septic arthritis. Accordingly, it connoted some sort of infection or disease but not trauma. Second, the Tariff makes specific provision elsewhere in Table 9 for traumatic back injury, including where this has resulted in the need for operative treatment (see Items 2A and 16A). This implied that it was never contemplated that Item 2 would extend to traumatic back injury.

 

The Upper Tribunal’s conclusions

17. The statutory language in Item 2 of Table 9 – “septic arthritis or other pathology requiring arthrodesis, osteotomy or total joint replacement” – is undoubtedly ambiguous. On a literal reading it could be read either way. Adding words to clarify its meaning, Mr Tucker says its means “septic arthritis or any other pathology requiring arthrodesis (etc)” whereas Mr Heppinstall submits it means “septic arthritis or any other similar or related pathology requiring arthrodesis (etc)”. A purely literal approach to statutory interpretation is therefore unhelpful. Rather, in accordance with the general principles of statutory interpretation, I must have regard both to the context and the purpose of the statutory drafting.

 

18. The statutory context is both particular and more general. In particular, the words “or other pathology” immediately follow “septic arthritis” and so take their colour from and are qualified by that medical condition. The word “other” is there for a purpose, and that purpose is to make the link between septic arthritis and what follows. In effect Mr Tucker is inviting me not so much to read words in – both representatives were seeking to do that – but to read words out, and in particular to ignore “other”. On his analysis, the descriptor simply reads “septic arthritis or any pathology requiring arthrodesis (etc)”.

 

19. More generally, the context requires consideration of the Tariff as a whole. The Tariff is a very detailed code which makes specific provision elsewhere for traumatic back injuries (see e.g. Item 16A of Table 9), further suggesting that “or other pathology” in Item 2 of Table 9 had to be read in the sense advocated by the Secretary of State.

 

20. The underlying purpose of the Scheme must also be relevant. The complex matrix of Tables, Items and related levels in Schedule 3 is intended to ensure that the most serious injuries receive the higher levels of compensation. The descriptors are said to represent a ‘Description of injury and its effects’. If “or other pathology” is read to mean “or any pathology”, whether or not it is related to or similar to septic arthritis, then the reference to septic arthritis itself loses any real purchase. The descriptor for Item 2 of Table 9 might just as well say simply “Any pathology requiring arthrodesis, osteotomy or total joint replacement.” On that basis “septic arthritis” is mere surplusage. In that event, the nature of the underlying condition becomes irrelevant, and the sole focus is on the nature of the treatment required, which in turn may be a very poor guide as to the severity of the effects of the condition in question. As Mr Heppinstall argued, that cannot be consistent with the purpose of the Scheme.

 

21. For those reasons I agree with Mr Heppinstall’s submissions on the proper construction of Item 2 of Table 9. It follows that the majority members in Mr D’s case directed themselves correctly as to the law on this aspect of the appeals, as did the unanimous First-tier Tribunal in Mr W’s case. The minority member in Mr D’s case adopted an unduly literal reading of Item 2 which failed to construe the statutory language in both its particular and wider context and was inconsistent with the statutory purpose.

 

22. I therefore reject the Appellant’s grounds of appeal based on both First-tier Tribunal’s approach to the proper interpretation of Item 2 of Table 9. However, that is not the end of the matter. Although I have decided that point of construction against both Appellants, their appeals each succeed on other grounds.

 

Mr D’s appeal to the Upper Tribunal (CAF/2049/2014)

23. The Secretary of State supported Mr D’s appeal on another ground, namely that the First-tier Tribunal’s majority decision entailed a lack of reasoning as to the effect on functional restriction and limitation, which was relevant to Item 16A of the Tariff. Mr Heppinstall further argued that by virtue of Article 26 the Secretary of State could make a temporary award at the level he considered appropriate in a case where the claimant’s injury is of a description for which no provision is made in the Tariff in force at the relevant time. Accordingly, just because neither Item 2 nor Item 6 were found to apply in this case, it did not necessarily follow inexorably that the First-tier Tribunal had no choice but to decide that Item 16A was the applicable level. The Respondent accordingly supported remittal on that basis alone.

 

24. Mr Heppinstall and Mr Tucker were therefore in agreement that the appeal in Mr D’s case be allowed for insufficiency of reasons. I accept their joint analysis on this point, allow Mr D’s appeal for that reason alone and set aside the First-tier Tribunal’s decision for that error of law. The Upper Tribunal is not in a position to substitute (or to “re-make”) its own decision. This means that the appeal will need to be re-heard on the facts by a differently constituted First-tier Tribunal.

 

25. The outcome of the re-hearing depends on the view taken by the new First-tier Tribunal of all the evidence in the case. An award for item 2A of Table 9 may or may not be appropriate in this case. The fact that this appeal has succeeded on a point of law is no indicator one way or the other as to the likely result of the re-hearing, which will be determined on the facts.

 

26. The following directions apply to the re-hearing (and as supplemented by any further directions by a Tribunal Judge in the War Pensions and Armed Forces Compensation Chamber of the First-tier Tribunal):

 

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

 

(2) The new tribunal should not involve any member who has previously been a member of a tribunal involved in this appeal.

 

(3) The new tribunal must consider all the evidence afresh, including any new evidence, and is not bound in any way by the decision of the previous tribunal. Depending on the findings of fact it makes, the new tribunal may reach the same or a different outcome to the previous tribunal.

 

Mr W’s appeal to the Upper Tribunal (CAF/3835/2014)

27. In Mr W’s case, aside from the question of the proper interpretation of Item 2 of Table 9, there were three other grounds of appeal. These were that the First-tier Tribunal had erred in law by (i) failing to take into account all the medical evidence when dismissing the appeal; (ii) failing to address the proposal made by Mr W’s representative that the case be referred back to the Secretary of State to consider a temporary award at level 9 (to enable a final award to be made when Item 2A of Table 9 was introduced); and (iii) failing to consider the Secretary of State’s proposal for a consent order for a temporary award at Item 4 of Table 4.

 

28. In written submissions on the Upper Tribunal appeal, the Respondent conceded that there was force in those other three grounds and so supported the appeal and proposed that the case be remitted for re-hearing.

 

29. By the time of the oral hearing matters had moved on and the Secretary of State now accepts that both the length of time Mr W had remained on sick leave at home and the dominance of intractable pain requiring powerful medication should result in a different outcome. He has therefore concluded that the most appropriate descriptor for the injury in question is Item 2A of Table 9. The Respondent therefore invited me to make a consent order in those terms, a course of action which Mr Tucker agreed to on behalf of Mr W. I therefore issued a consent order in the following terms on the day of the hearing:

 

CONSENT ORDER

 

Having heard today from Mr Glyn Tucker of the Royal British Legion for the Appellant, and from Mr Adam Heppinstall of Counsel instructed by the Government Legal Department for Veterans UK, to the effect that the Secretary of State is willing to invite the Tribunal to make a consent order in the terms set out below and that the Appellant agrees to the making of a consent order in the terms set out below;

 

And as the Upper Tribunal is satisfied that it is appropriate to make a consent order disposing of these proceedings pursuant to rule 39(1) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2685);

 

IT IS DIRECTED:

 

1. That the Appellant’s appeal against the First-tier Tribunal’s decision of 7 January 2014 is allowed and the First-tier Tribunal’s decision is accordingly set aside and re-made;

 

2. That the Appellant is hereby placed on AFCS Schedule 3, Table 9, Item 2A of the Tariff, namely “Traumatic back injury resulting in vertebral or intervertebral disc damage and medically verified neurological signs, which has required, or is expected to require, operative treatment and which is expected to result in permanent significant functional limitation or restriction.”

 

Conclusion in summary

30. The First-tier Tribunal’s majority decision in Mr D’s case and unanimous decision in Mr W’s case adopted the correct interpretation of Item 2 of Table 9. I dismiss the grounds of appeal on that point.

 

31. However, for other reasons in Mr D’s case, I conclude that the decision of the First-tier Tribunal involves an error of law. I therefore allow his appeal and set aside the decision of the tribunal (Tribunals, Courts and Enforcement Act 2007, section 12(2)(a)). The case is to be remitted for re-hearing by a new tribunal subject to the directions and guidance above (section 12(2)(b)(i)). 

 

32. In Mr W’s case, I agree the proposed Consent Order, which involves re-making the decision under appeal in the terms as set out above (rule 39(1) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2685)).

 

 

 

 

 

Signed on the original Nicholas Wikeley

on 28 May 2015 Judge of the Upper Tribunal