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Entitlement to Armed Forces Compensation - General Principles

Document Cited authorities 7 Cited in Related
Vincent
AuthorAndrew Bano
Pages117-128

Chapter 14


Entitlement to Armed Forces Compensation – General Principles

14.1 The Armed Forces Compensation Scheme is a ‘no fault’ scheme which mirrors the War Pensions Scheme in that benefit is payable for injury caused by service, injury made worse by service, and death caused by service. However, a key difference between the two Schemes is that under the Armed Forces Compensation Scheme, in cases where there is more than one cause of injury or death, a claimant is only entitled to benefit if service is the predominant cause. Article 2 of the AFCS 2011 defines ‘service’ as meaning ‘service in the armed forces’ and ‘predominant’ as meaning ‘more than 50%’. Under the Armed Forces Compensation Scheme the onus is on the claimant to establish entitlement to compensation on the balance of probabilities.1

CAUSATION IN THE ARMED FORCES COMPENSATION SCHEME
Injury ‘caused by service’ and ‘predominant cause’
14.2 Article 8 of the AFCS 2011 provides:

(1) Subject to articles 11 and 12, 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 injury occurred on or after 6th April 2005.

(2) Where injury is partly caused by service, benefit is only payable if service is the predominant cause of the injury.

By article 2 of the AFCS 2011, ‘injury’ includes illness.

1See para 16.1.

118 War Pensions and Armed Forces Compensation – Law and Practice

14.3 The meaning of ‘caused by service’ and ‘predominant cause’ in the context of the Armed Forces Compensation Scheme was considered by Judge Mesher in EW v Secretary of State (AFCS).2The claimant in that case was a member of the British element of a multinational Rapid Reaction Corps stationed at the Citadelle in Lille who was not allowed to park at the Unit’s headquarters. He was injured on a pedestrian crossing by a hit and run driver while on his way to work, wearing uniform and a high visibility Bergen. Judge Mesher held that the tribunal had erred in law in holding that the claimant could succeed only if he fell within the inclusionary ‘travel to work’ provisions of the 2005 Scheme. The judge held that the test was not whether a claimant was in service or on-duty at the time of the incident in question, but whether the injury was caused, and predominantly caused, by service. The judge held (at [27]) that service was not a cause of the claimant’s injury because:

The injury on the journey to work being a manifestation of a risk run by the general public using the streets of Lille, that injury could not properly be regarded as caused by his service, let alone being predominantly caused by service. Nor was the nature of that risk in any way restricted to Lille as compared with any other place, including within the United Kingdom, where he might have been posted and had to live in non-service accommodation.

In SV v Secretary of State for Defence (AFCS),3a case in which the claimant was very seriously injured in an off-duty diving accident, Judge Mesher emphasised that each case must be considered on its own merits. The fact that an injury is a manifestation of risk run by members of the general public does not necessarily mean that the injury has not been caused by service.4

14.4 The principles of causation underlying the Armed Forces Compensation Scheme were considered in detail by a three-judge panel of the Upper Tribunal (Charles J, Judge Rowland and Judge Lane) in JM v Secretary of State for Defence (AFCS).5The appellant made claims under the AFCS 2005, including a claim in respect of depression which he alleged was the result of a campaign of bullying and verbal abuse. The First-tier Tribunal dismissed the claimant’s appeal against the rejection of his claim, holding that his depression was ‘due to multiple factors and in particular personal, domestic and marital stress’. The Upper Tribunal allowed the claimant’s appeal against that decision on the grounds of inadequacy of reasoning and procedural unfairness, and also gave detailed guidance on the

2[2012] UKUT 186 (AAC), [2012] AACR 3.

3[2013] UKUT 541 (AAC).

4On appeal to the Court of Appeal, the decision of the Upper Tribunal was set aside by consent, although the appeal was concerned with a different point.

5[2015] UKUT 332 (AAC), [2016] AACR 3.

steps to be taken in applying the Armed Forces Compensation Scheme causation

test.

14.5 Although the Armed Forces Compensation Scheme requires the identification of ‘service’ as the cause, or predominant cause, of injury or death, the Upper Tribunal observed that ‘service’ is an abstract concept and (at [81] and
[82]) that it is therefore necessary, as a matter of language and concept, to identify the events or processes – the ‘process’ cause or causes of the injury – and then to ask whether it is, or they are, sufficiently linked to service to satisfy the test that the injury due to each process cause is caused by service (or, using a shorthand, that the process cause is a service cause).

14.6 The Upper Tribunal held that whether an injury should be categorised as caused by service requires consideration of the circumstances in which the cause of the injury operated and is a matter that can change over time by reference to changing circumstances, societal or legal norms, such as changes in the requirements of service, policies, terms and conditions and disciplinary regimes (at [116]). The Upper Tribunal held (at [118]) that the correct approach to the issues of ‘cause’ and ‘predominant’ cause under the Armed Forces Compensation Scheme is:

(i) first, identify the potential process cause or causes (i.e. the events or processes operating on the body or mind that have caused the injury);

(ii) second, discount potential process causes that are too remote or uncertain to be regarded as a relevant process cause;

(iii) third, categorise the relevant process cause or causes by deciding whether the circumstances in which process causes operated were service or non-service causes. It is at this stage that a consideration of those circumstances comes into play, and the old cases on the identification of a service cause applying the old attributability test provide guidance;

(iv) fourth, if all the relevant process causes are not categorised as service causes, apply the predominancy test.

On that basis, the Upper Tribunal held (at [123]) that in EW v Secretary of State for Defence6and SV v Secretary of State for Defence (AFCS),7it had actually been unnecessary to consider whether service was the predominant cause of injury because the only question in each case was whether the ‘process’ cause –...

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