Adjudication

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Chapter 16

Adjudication

BURDEN AND STANDARD OF PROOF Burden of proof
16.1 Unlike the War Pensions Scheme, which puts the onus on the Secretary of State to disprove entitlement to benefit,¹the Armed Forces Compensation Scheme places the burden of proving any issue on the claimant. In a memorandum to the Defence Select Committee submitted in 2002, the Ministry of Defence explained the reason for the change as follows:

The burden of proof which operates for the war pension scheme was devised at a time when there was no developed social welfare system on which soldiers returning from the First World War could depend on for medical or financial support. In addition, the medical understanding of the causes and course of illness or injuries was much more limited than now. Hence the burden of ‘disproof’ was placed on the Government rather than the individual. In introducing a new scheme it seems right to adopt modern practice and require a burden of proof based on ‘a balance of probabilities’.²

16.2 In accordance with the recommendations of the Boyce Review,³the Armed Forces Compensation Scheme places the burden of proving any issue on the claimant, but this principle is subject to an exception in cases where a contemporary official record relating to a material fact is missing. In such cases, there is a presumption in favour of the claimant where there is other reliable evidence of the fact in question, although this does not prevent the fact from being disproved by the Secretary of State. A ‘material fact’ need not be decisive, and a

¹See, generally, paras 3.1–3.4 and Chapters 4 and 5.

²Memorandum from the Ministry of Defence (1 March 2002), cited in Defence Select Committee,

Third Report of Session 2001–02, HC 666 (1 May 2002), Ev 42.

³Boyce Review, para 2.123.

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record is treated as missing if it cannot be found after a diligent search or has been destroyed. Article 60 of the AFCS 2011 provides:

(1) Subject to the provisions of this article, the burden of proving any issue is on the claimant.

(2) Where paragraph (3) applies there is a presumption in favour of the claimant unless the Secretary of State proves to the contrary.

(3) This paragraph applies where—

(a) a contemporary official record relating to a material fact which is relevant to deciding a condition for payment of benefit under Part 2 is missing; and

(b) there is other reliable evidence^[4] to determine the material fact.

(4) For the purpose of paragraph (3)—

(a) ‘a contemporary official record’ means a record, including an electronic record, held by the Secretary of State for Defence or the Defence Council;

(b) ‘a material fact’ need not be a decisive fact for the purpose of determining a claim under Part 2;

(c) a record is missing where it has been—

(i) lost and cannot be found after a diligent search; or
(ii) destroyed.

16.3 Article 60 of the AFCS 2011 should be read in the light of the observations of Baroness Hale of Richmond in Kerr v Department for Social Development,⁵in which it was held that a failure by either party to play their proper part in an investigative system of adjudication might result in a finding against that party.⁶After referring to R v Medical Appeal Tribunal (North Midland Region) ex parte Hubble,⁷Baroness Hale said (at [62] and [63]):

62. What emerges from all this is a co-operative process of investigation in which both the claimant and the department play their part. The department is the one which knows what questions it needs to ask and what information it needs to have in order to determine whether the conditions of entitlement have been met. The claimant is the one who generally speaking can and must supply that information. But where the information is available to the department rather than the claimant, then the department must take the necessary steps to enable it to be traced.

⁴See para 5.2 for the meaning of ‘reliable evidence’ in the context of the SPO 2006.

⁵[2004] UKHL 23, [2004] 1 WLR 1372 (also included as an appendix to R1/04(SF)).

⁶See the observations of the three-judge panel of the Upper Tribunal in JM V Secretary of State for Defence [2015] UKUT 332 (AAC), [2016] AACR 3, [32].

⁷[1958] 2 QB 228.

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63. If that sensible approach is taken, it will rarely be necessary to resort to concepts taken from adversarial litigation such as the burden of proof. The first question will be whether each partner in the process has played their part. If there is still ignorance about a relevant matter then generally speaking it should be determined against the one who has not done all they reasonably could to discover it. As Mr Commissioner Henty put it in decision CIS/5321/1998, ‘a claimant must to the best of his or her ability give such information to the [adjudication officer] as he reasonably can, in default of which a contrary inference can always be drawn.’ The same should apply to information which the department can reasonably be expected to discover for itself.

Missing official records
16.4 The Boyce Review concluded that the burden and standard of proof under the Armed Forces Compensation Scheme should be modified in cases where a claimant might be placed at a disadvantage because relevant records had been lost, and in cases where claimants were disadvantaged by the lack of a system of prescribed diseases in armed forces compensation cases equivalent to that in the social security Industrial Injuries Disablement Benefit Scheme. So far as the first situation is concerned, the Review recommended⁸that, where records which bear on a material issue have genuinely been lost by the Ministry of Defence, the standard rules and guidance to decision-makers should be modified so as to assist the individual service person by affording the benefit of a presumption, transferring the burden of proof to the Ministry of Defence on the balance of probabilities. In an injury case, this would work in the following way (at para 2.215):

If the individual through appropriate evidence demonstrates on the balance of probabilities that s/he has an injury which was suffered while undertaking an activity in the...