Entitlement to Armed Forces Compensation - General Principles

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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.

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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.

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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 – being struck by a car in one case and diving onto a sandbank in the other – was a service cause. Applying their approach in the context of a ‘bullying’ case, the Upper Tribunal held (at [108]) that acts committed, condoned or encouraged by more

⁶[2011] UKUT 186, [2012] AACR 3.

⁷[2013] UKUT 541 (AAC).

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senior personnel would be a factor tending to link those acts with service, although in SN v Secretary of State for Defence (AFCS),⁸Judge Rowland held (at
[23]) that, since the Armed Forces Compensation Scheme is a ‘no fault scheme’, mental disorder caused by stresses at work in the Armed Forces may be caused by service even if no one has behaved improperly towards the claimant.

‘Service cause’
14.7 By article 6(2) of the AFCS 2005 (and article 7(2) of the AFCS 2011), ‘the rules of [the Armed Forces Compensation Scheme] are to be construed without reference to any other scheme applicable to the armed forces’. However the Upper Tribunal accepted in JM v Secretary of State for Defence (AFCS)⁹(at
[87]) that the test of attributability under the War Pensions Scheme was the same as whether an injury was ‘caused by’ service under the Armed Forces Compensation Scheme (although providing no guidance on ‘predominant cause’). It therefore held that cases decided under the War Pensions Scheme¹⁰remained relevant in categorising the process causes of an injury as being either service or non-service causes. The Upper Tribunal referred to the following principles established in war pensions cases as relevant to the categorisation of the cause of an injury as a service or non-service cause under the Armed Forces Compensation Scheme:

(i) ‘attributable to service’ is not the same as ‘in the course of service’; see, in particular, Horsfall v Minister of Pensions,¹¹in which Tucker J held that the words ‘by service’ or ‘attributable to service’ embraced ‘only acts or conditions or events performed or undergone owing to and in compliance with the general or special conditions of service, together with all acts and conditions or events necessarily or reasonably incidental to those obligations as distinct from acts and conditions or events normally incidental to civil life’ (referred to by Ormerod J in Giles v Minister of Pensions¹²as ‘compulsions of service’).

(ii) Injury or death resulting from events in a claimant’s ‘personal’ or ‘domestic’ sphere, where service does no more than provide the circumstances in which the cause operated, is not attributable to service; see, for example, Wedderspoon v Minister of Pensions.¹³

⁸[2018] UKUT 263 (AAC).

⁹[2015] UKUT 332 (AAC), [2016] AACR 3.

¹⁰See paras 3.9–3.16.

¹¹(1944) 1 WPAR 7.

¹²(1955) 5 WPAR 97.

¹³[1947] KB 652.

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(iii) Whether a claimant suffers injury while on- or off-duty is not conclusive; see Giles v Minister of Pensions;¹⁴

(iv)...