[2009] UKUT 10 (AAC) (05 February 2009)

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Upper Tribunal (Administrative Appeals Chamber)

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URL: http://www.bailii.org/uk/cases/UKUT/AAC/2009/10.html
Cite as: [2010] AACR 5, [2009] UKUT 10 (AAC)

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IN THE UPPER TRIBUNAL Appeal Nos CAF/2162/2007

ADMINISTRATIVE APPEALS CHAMBER and CAF/1412/2007

Appellant: The Secretary of State for Defence

Respondents: Lance Corporal (now Corporal) AD and Marine MM

Heard at: London (Field House)

Dates of hearing: 2 and 25 June and 12 November 2008

Date of decision: 5 February 2009

Before: Three-Judge Panel of the Administrative Appeals Chamber of the Upper Tribunal (Mr Justice Hickinbottom CP, Upper Tribunal Judge John Mesher and Upper Tribunal Judge Elisabeth Jupp)

Attendances:

For the Appellant: Ian Rogers of Counsel instructed by the Treasury Solicitor

For the Respondent: Hugh Lyons of Lovells Solicitors

DECISION

The appeals by the Secretary of State to the Administrative Appeals Chamber of the Upper Tribunal are allowed. The decisions of the Pensions Appeal Tribunal ("the PAT") held respectively on 28 February 2007 on file CAF/2162/2007 (PAT ref no AFCS/00012/2006) and 28 December 2006 on file CAF/1412/2007 (PAT ref no AFCS/00003/2006) involved errors on a point of law and are set aside under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007, and in exercise of the transitional provisions contained in paragraphs 2 and 3 of Schedule 4 to the Transfer of Tribunal Functions Order 2008. The cases are remitted together to a differently constituted First-tier Tribunal within the War Pensions and Armed Forces Compensation Chamber for reconsideration in accordance with our directions.

Our directions and observations for the rehearing are given in paragraphs 126–131 below.

REASONS FOR DECISION

Introduction

These two appeals are made by the Secretary of State for Defence and raise important issues concerning the construction of the Armed Forces Compensation Scheme ("the AFCS") which came into force on 6 April 2005 under The Armed Forces and Reserve Forces (Compensation Scheme) Order 2005 (SI 2005/439) ("the Order") pursuant to section 1(2) of the Armed Forces Pensions and Compensation Act 2004. Both claimants were injured after the AFCS came into force but before it was amended by The Armed Forces and Reserve Forces (Compensation Scheme) (Amendment) Order 2006 (SI 2006/1438). For the purposes of this decision, there is no difference between the two Orders, save that helpfully the 2006 amendment numbered the injuries listed in the various Tables in Schedule 4. For that reason, when referring to the Tables, we refer to the legislation as amended by the 2006 Order. Neither The Armed Forces and Reserve Forces (Compensation Scheme) (Amendment No 2) Order 2008 (SI 2008/2160) ("the 2008 Amendment Order") which came into force on 16 September 2008 nor The Armed Forces and Reserve Forces (Compensation Scheme) (Amendment No 3) Order 2008 (SI 2008/2942) which came into force on 15 December 2008 applies to this decision.

These appeals concern the correct application of the Tables in Schedule 4 to the Order to the injuries and diseases suffered by those to whom the Order applies, including the proper construction of article 11(a)(iii).

We held oral hearings of the appeal in London on 2 and 25 June 2008. For convenience we refer to them together as "the earlier hearing". We then made Observations and sought further submissions on the treatment under the AFCS of consequential injuries arising from an initial injury suffered by a claimant. We held a further hearing on 12 November 2008, to which we refer as "the later hearing". At each hearing, the Secretary of State was represented by Mr Ian Rogers of Counsel. Mr Hugh Lyons of Lovells Solicitors appeared for both claimants, instructed by the Royal British Legion. We record our thanks to all of the representatives.

The legislation

Article 7 of the Order provides:

"Injury caused by service

(1) Benefit is payable in accordance with this Order to or in respect of a member or former member of the forces by reason of an injury which is caused (wholly or partly) by service where the cause of the injury occurred on or after 6th April 2005.

(2) Where injury is not wholly caused by service, benefit is only payable if service is the predominant cause of the injury".

5. Article 11 provides:

"Injury and Death – Exclusions

No benefit is payable under this Order to or in respect of a person by reason of –

(a) an injury which is predominantly caused or predominantly made worse by, or death which is predominantly caused by –

((i) the use or effect of tobacco,

(ii) the consumption of alcohol,

(iii) medical treatment of the injury except where the treatment is provided while the person sustaining the injury is on military operations outside the United Kingdom and in circumstances relating to service where medical facilities are limited,

(iv) the non-therapeutic use of drugs,

(v) consensual sexual activities,

(vi) … events, experiences, exposures and activities before the member of the forces entered service."

Article 14(1) and (2) provides:

"Description of benefits – injury

(1) Benefits payable for injury are –

(a) a lump sum;

(b) a guaranteed income payment payable until death.

(2) The tariff shall have effect for the purpose of determining the amount of lump sum and the guaranteed income payment as follows –

(a) in Tables 1 to 9 (inclusive) the injuries in column (b) give rise to entitlement at the corresponding tariff level in column (a);

(b) subject to paragraphs (8) and (9), in Table 10 the amount in column (b) shall be the relevant amount in relation to the injuries of the tariff level referred to in column (a)."

Article 15 provides:

"Amount of lump sum

(1) Where one injury is sustained in one incident, the amount of the lump sum is the relevant amount, described in article 14 (2)(b), applicable to that injury.

(2) Subject to paragraph (3), where more than one injury is sustained in one incident, the amount of the lump sum shall be calculated as follows –

(a) for the first injury, 100 per cent of the relevant amount applicable to that injury;

(b) for the second injury, 30 per cent of the relevant amount applicable to that injury;

(c) for the third injury, 15 per cent of the relevant amount applicable to that injury;

and no further amount shall be paid where four or more injuries are sustained in one incident.

(3) The total amount payable under paragraph (2) shall not exceed the amount specified at Level 1 in column (a) of Table 10.

(4) Subject to paragraph (6) where –

(a) more than one injury has been sustained in one incident;

(b) a claim for injury benefit ("the first claim") is made for some but not all the injuries: and

(c) after notice of the decision on the first claim has been given or sent to the claimant, a further claim for injury benefit is made for other injuries sustained in that incident, the Secretary of State shall determine the further claim by recalculating the amount of the lump sum in accordance with paragraphs (2) and (3) taking into account all the injuries sustained in that incident which have been the subject of a claim.

…."

Article 20 provides:

"Temporary Awards

(1) Where the Secretary of State considers that –

(a) a person has sustained an injury of a description for which no provision is made in the tariff; and

(b) that injury is sufficiently serious to warrant an award of injury benefit; and

(c) that injury is listed in the International Statistical Classification of Diseases and Related Health Problems or in the Diagnostic and Statistical Manual of Mental Disorders

he shall make a temporary award in respect of that person relating to the level of the tariff which he considers appropriate for that injury.

(2) The amount of the lump sum payable under a temporary award is the amount which would have been payable had the injury been included in the level of the tariff which the Secretary of State considers appropriate for the injury.

(3) Where guaranteed income payment is payable under a temporary award, the amount payable is that which would have been payable had the injury been included in the tariff at the level which the Secretary of State considers appropriate for the injury.

(4) If the Secretary of State –

(a) does not, within the period of one year starting with the date on which the temporary award is given or sent to the claimant, amend this Order by including the injury for which the temporary award is made in the level of the tariff which he considers appropriate for that injury, guaranteed income payment shall cease to be payable under the temporary award at the end of the period but no amount, either lump sum or guaranteed income payment, paid in accordance with that award is recoverable;

(b) does, within that period, so amend this Order –

(i) the temporary award becomes a permanent award on the day on which the amending Order comes into force, and

(ii) guaranteed income payment shall continue to be paid in accordance with this Order."

So far as is relevant, Table 2 in Schedule 4 provides:

"Injury, Wounds and Scarring

Item	Column (a) Level	Column (b) Injury
3	6	Complex injury covering all or most of the area from thigh to knee, knee to ankle, shoulder to elbow or elbow to wrist, with complications, causing permanent functional limitation and restriction.
11	8	Complex injury covering all or most of the area from thigh to knee, knee to ankle, shoulder to elbow or elbow to wrist, causing permanent functional limitation and restriction.
26	12	High velocity gunshot wound affecting skin, subcutaneous tissue and muscle of the abdomen, chest or limbs.

The relevant Notes to Table 2 include:

"When applied to limb injuries the expression "complex injury" means that the injury affects all or most of the following structures: skin, subcutaneous tissues, muscle, bone, blood vessels and nerves.

When applied to limb injuries the expression "with complications" means that the injury is complicated by at least one of septicaemia, osteomyelitis, vascular or neurological injury, avascular necrosis, gross shortening of the limb, mal-united or non-united fracture, or the fact that the claimant has required, or is expected to require a bone or skin graft.

An award for injury to limbs … includes compensation for related scarring and damage to, or removal of structures (including skin, subcutaneous tissues, muscle, bone, blood vessels and nerves).

Awards for injuries in this table include compensation for any associated psychological effects short of a distinct diagnosable disorder."

So far as is relevant, Table 4 provides:

"Physical disorders including infectious diseases

Item	Column (a) Level	Column (b) Injury
4	9	Physical disorder causing permanent severe functional limitation and restriction.
6	11	Physical disorder causing permanent moderate functional limitation and restriction.
7	13	Physical disorder which as caused, or is expected to cause, moderate functional limitation and restriction at 26 weeks, from which the claimant has made, or is expected to make, a substantial recovery within 26 weeks.

The relevant Notes to Table 4 include:

"Any reference to duration of effects in column (b) are from date of injury of onset of illness."

So far as is relevant, Table 8 provides:

"Fractures and dislocations

Item Column (a)
Level Column (b)
Injury

13 12 Fracture of one humerus, femur, radius, ulna or tibia which has caused, or is expected to cause, significant functional limitation and restriction beyond 26 weeks.

The relevant Notes to Table 8 include:

"The tariff values for fractures refer to closed fractures. Where a fracture is open the award shall be increased by £1000.

An award for an injury in this table includes compensation for any expected consequential osteoarthritis.

Awards for injuries in this table include compensation for any associated psychological effects short of a distinct diagnosable disorder."

History

CAF/2162/2007

The claimant, D, serving in the Regular Army with the Light Dragoons, was the lead member of a team carrying out a foot patrol in Iraq on 16 September 2005 when a high velocity bullet passed through his upper left thigh, fracturing his femur. After initial treatment at an American hospital in Iraq, he returned to the United Kingdom. He had, very quickly, five operations, which included the fixation of an intramedullary nail. At the date of his claim on 15 November 2005 he stated that he was still receiving treatment, that he had reduced mobility and that he was using crutches to move around. Constant pain limited his daily activities and disturbed his sleep. A medical report on 9 March 2006 confirmed the injury and treatment and that AD remained under orthopaedic review and would attend rehabilitation. The functional limitation was expected to persist for at least 26 weeks. On this basis, on 26 April 2006 the Secretary of State made an award under Item 13 of Table 8 at Level 12 which amounted to a lump sum award of £8,250, increased by £1,000 to £9,250 because of the open fracture. AD asked for a reconsideration and that his records at Headley Court, where he had been treated, should be considered. The records were obtained but on 30 August 2006 the Secretary of State confirmed that the original decision remained appropriate.

D appealed and on 28 February 2007 the PAT allowed the appeal, and made an award of Item 3 of Table 2 at Level 6. This resulted in a lump sum award of £46,000, together with a guaranteed income payment under article 14(1)(b), payable for life once AD leaves service (article 14(7)).

The Secretary of State sought leave to appeal, at the same time advising AD that pursuant to article 15(2)(b) of the Order the gunshot wound should also have been compensated by an additional lump sum award made under Item 26 of Table 2 at Level 12, as a "second injury" at 30% of the sum provided for a gunshot wound. The award would therefore increase to £11,725 (£9,250 as awarded, plus 30% x £8,250).

CAF/1412/2007

The claimant, M, serving with the Royal Marines, sustained a supracondylar fracture of his right femur whilst on a training exercise between 27 June and 1 July 2005. This was also fixed with an intramedullary nail. He submitted a claim on 7 September 2005, and on 30 November 2005 the Secretary of State wrote to him confirming an award under Item 13 of Table 8 at Level 8, namely a lump sum award of £8,250, there being in this case no open fracture. Like AD, MM asked for a reconsideration, listing his difficulties, including that his leg had shortened and that he had other resulting problems in other limbs. On 24 January 2006 the Secretary of State maintained the original award. The claimant appealed.

On 20 December 2006, the PAT allowed M's appeal and made an award of Item 11 of Table 2 at Level 8, giving a lump sum award of £28,750, together with a guaranteed income payment payable for life once MM leaves service.

In both cases leave to appeal was given by Mrs Commissioner Jupp on grounds including the general importance of the points raised, and on 7 March 2008 the Chief Commissioner directed that the appeals be heard together by a Tribunal of Commissioners with particular reference to the correct application of the Tables of Schedule 4 to the Order to the injuries and diseases suffered by those to whom the Order applies, including the proper construction of article 11(a)(iii). Following the implementation of The Tribunals, Courts and Enforcement Act 2007 – and the establishment of the Upper Tribunal and transfer of the Commissioners' jurisdictions to that tribunal on 3 November 2008 – we have concluded the appeal sitting as a Three-Judge Panel of the Administrative Appeals Chamber of the Upper Tribunal ("the AAC").

Issues

This is the first decision of substance by the AAC or a Tribunal of Commissioners which has considered the relevant provisions of the AFCS. As argued before us the issues of principle raised by the appeals are:

(1) what is meant by the various references to "injury" in the Order;

(2) whether article 11(a)(iii) has the result that the consequences of any medical treatment of the injury must be excluded in assessing the injury and applying the Tables, except in so far as they are expressly mentioned in a particular descriptor;

(3) whether, as submitted by the Secretary of State at the outset and at the later oral hearing, the PATs erred in failing to accept that a fracture injury could only attract a descriptor selected from Table 8, which provides for fracture injuries of varying levels of severity to be classified by reference to the duration of the effects, the type of fracture and the degree of functional limitation and restriction;

(4) the choice of the appropriate descriptor;

(5) the meaning of the word "covering" in Table 2 and whether consequential injuries, such as back pain following a leg injury which affects the person's gait should fall within the term "covering" for the purposes of Table 2;

(6) the possible application of Table 4 and whether, where an injury which would not otherwise satisfy the criteria for "complex injury" has consequential effects on other parts of the body, the overall effects may fit a descriptor falling within Table 4;and

(7) whether the date of the decision appealed against in each case was the date of the initial decision by the Veterans Agency or the date of the reconsideration, both parties submitting that it was the latter.

Questions of "complications" and "functional limitation and restriction" are considered as they arise in the two appeals.

19. We consider these issues in turn, before dealing with their application to the two appeals before us.

What is meant by "injury"

An injury for which benefit is payable under article 7 of the Order is defined by reference to causation: it is an injury "caused (wholly or predominantly) by service", where the cause of the injury occurred on or after 6 April 2005. Subject to the particular procedure for temporary awards under article 20, by virtue of article 14(3) benefits are only payable for injuries specified in the Tables in Schedule 4 to the Order. When the word "injury" is being used in the sense of an injury for which benefit can be payable, its meaning must therefore be (or at least include) anything specified in any one of the descriptors in the Tables. However, is such an injury to be considered as restricted to the immediate physiological or mental change for the worse resulting from the relevant service incident or circumstance ("the initiating injury"), or as referring to the claimant's overall condition at the date of the relevant decision as a result of that incident or circumstance, to include (for example) any consequent medical treatment?

It is helpful first to consider this question ignoring any possible effect of the article 11(a)(iii) exclusion. We shall return to that article in due course.

Throughout, Mr Rogers submitted that the injury specified in column (b) of the tariff Tables is the initiating injury, and the amounts awarded by Table 10 are intended to compensate for all "expected and ordinary consequences" of the relevant injury specified in the descriptor. However, the Tables use varying ways to describe, and even different approaches to, what constitutes an injury. Sometimes the reference is clearly to the initiating injury, eg high velocity gun shot wound (Item 26, Table 2) or blast injury to ears (Item 28, Table 7). In other items, although the reference could be to an initiating injury it must by implication extend to consequential events, including in particular medical treatment. Examples are all the descriptors in Table 5 (amputations) referring to the loss of some part of the body, the descriptors in Table 7 (senses) referring to loss of eye(s) and the descriptors in Table 2 (injury, wounds and scarring) referring to loss of teeth. It must be the case that if a person sustains some damage to an eye or a tooth or some other part of the body that later requires its removal by a surgical or dental operation, the relevant "loss" descriptor is satisfied. To that extent at least the descriptors extend beyond the initiating injury.

In many cases, satisfaction of a particular descriptor depends on whether a claimant has or is expected to have functional limitation and restriction at 26 weeks from the date of injury or onset of illness – and on whether substantial recovery is expected beyond that date, or whether the limitation and restriction is, or is expected to be, permanent. There are many variations on this formula in different Tables. Several other descriptors refer to the way in which the condition has responded to treatment, eg in Table 2 (facial lacerations and scarring of varying severity expected to produce satisfactory or poor cosmetic results); or to the need for operative treatment; or to a failure of treatment, eg Item 22, Table 6 (entrapment neuropathy that has not responded to treatment). It is clear that in these cases the question of whether the particular descriptor is satisfied must be answered according to the claimant's condition (actual or posited) as it is at the date of the decision on the claim.

In respect of the various descriptors, there must be a consistent approach to the time at which the claimant's injury is considered. In view of the structure and terminology of the Order in general, and of the Tables in Schedule 4 in particular as considered above (with their variety of methods for specifying how descriptors can be satisfied), our conclusion as a matter of principle is that the starting-point for all descriptors can only be the claimant's overall condition as at the date of the decision on the claim.

Still presently ignoring article 11(a)(iii), another point of principle is that there is nothing in the wording or context of the Order to exclude consideration of the effects of medical treatment in assessing whether the characteristics of a descriptor are satisfied as at the relevant date. If those characteristics are satisfied, then under article 7 the question to be asked remains whether the injury (here the condition specified in the relevant descriptor) was "wholly or predominantly caused by service", taking into account the nature and reasons for the medical treatment in question.

That is consistent with the apparent and undisputed purpose of the AFCS, which is to provide compensation to members and former members of the armed forces whose physical and mental health has been adversely affected by their service, at levels related to the extent of those adverse effects. It would require an entirely artificial and absurd severance of those effects to exclude the effects of medical treatment that would not have been carried out if the service incident or circumstance had not occurred. We consider that such an exclusion would only be warranted if the plain words of the Order required it, which they do not.

In the present cases each claimant had initial injuries to relatively discrete areas of his thigh but his resulting overall condition at the date of the decisions appealed against affected a more extensive area of the leg, partly as a result of appropriate medical treatment of the initial injuries. In each case, it is that resulting condition which is, in principle, for consideration. In our judgment, there is no substance in the submission made for the Secretary of State in the earlier hearing that the results of medical treatment are not to be taken into account in the assessment of the injury for the purposes of benefit unless medical treatment is expressly referred to in the chosen descriptor: although, in fairness to Mr Rogers, that submission was based in particular on the effects of article 11(a)(iii) to which we now turn.

The effect of article 11(a)(iii)

Article 11(a)(iii) is set out in paragraph 5 above. So far as immediately material it provides as follows:

"No benefit is payable under this Order to or in respect of a person by reason of –

(a) an injury which is predominantly caused or predominantly made worse by, or death which is predominantly caused by –

…

(iii) medical treatment of the injury except where the treatment is provided while the person sustaining the injury is on military operations outside the United Kingdom and in circumstances relating to service where medical facilities are limited …"

Payment of benefit can therefore only be excluded under article 11(a)(iii) in respect of medical treatment in the case of "an injury" which is either "predominantly caused or predominantly made worse by … medical treatment". It is to be noted at the outset that this wording, put in terms of causation, reflects article 7. It is common ground (and we agree) that here "injury" can only refer to the circumstances specified in some descriptor within the Tables (or, in the particular case of the application of article 20, circumstances not currently in the tariff but warranting an award). For the reasons given in paragraphs 23 and 24 above, that means looking at the claimant's overall condition at the date of the decision on the claim.

In paragraph (iii) of article 11(a), the phrase "the injury" is used twice: "… medical treatment of the injury except where the treatment is provided while the person sustaining the injury is on military operations outside the United Kingdom…". Although as a tenet of construction, where a word is used more than once in a provision there may be an assumption that it is used in the same sense on each occasion, we accept Mr Rogers' submission that "the injury" as used here in paragraph (iii) cannot mean the claimant's overall condition at the date of the decision on the claim since that would involve an impossible logical circle. Those references must be to medical treatment of the initiating injury, or at least to earlier stages of the medical treatment of the claimant's current condition.

In line with the principle we have set out above (ie the starting-point for consideration of "the injury" for which benefit is payable for all descriptors is the claimant's overall condition as at the date of decision on the claim), article 11 starts from the premise that where a claimant's condition satisfies a descriptor at the date of the decision (and other conditions for an award are satisfied) then an award of benefit should ordinarily follow. The question then raised by article 11 is whether, notwithstanding this, the claimant's current overall condition is predominantly caused or made worse by the medical treatment he has had in relation to the initiating injury. Article 11 does not provide (as it could have done, if this had been the legislator's intention) that if elements of a claimant's condition result from medical treatment of the initiating injury, then those elements are simply to be disregarded when deciding whether any descriptor is satisfied. It provides that if, at the date of decision, the injury is "predominantly caused or made worse by" the medical treatment, then benefit is excluded under the scheme (although in cases of negligence the claimant may have a separate remedy) – but if service remains the predominant cause, then benefit is payable.

The issue raised is therefore one of causation. Accordingly, where a claimant receives appropriate medical treatment for any initiating injury predominantly caused by service, the injury (here the condition at the date of decision) does not cease to have been predominantly caused by service in the sense of satisfying the terms of a descriptor, nor does it become "caused or worsened" by the medical treatment. But for the initiating injury caused by service, there would be no requirement for the treatment. It is only when the nature of, or reasons for, the medical treatment demonstrates that the chain of causation by service is broken, that article 11(a)(iii) can apply. That is consistent with article 7, which defines injury for which benefit is payable in terms of causation (see paragraph 20 above).

It follows that there may be cases where, for example, an injury that would not initially have satisfied the test for a "complex injury" will come to satisfy that test and so fall within a higher descriptor following the carrying out of subsequent appropriate medical treatment. Equally, an injury that initially did not have complications could move into a higher descriptor because by the date of the decision under appeal a complication, as defined in the Order, exists in the form of, or as a consequence of, medical treatment. For instance, the proper treatment of an operation wound following a limb injury might require a skin graft, one of the "complications" specified in the Note to Table 2. That Note, especially in its reference to requiring a skin or bone graft, can only possibly be interpreted as applying to circumstances which have occurred after the initiating injury.

That fortifies us in our conclusion that the same result must follow in relation to whether an injury meets the definition of a complex injury in Table 2. We reject Mr Rogers' submission that in these descriptors where "injury" is referred to as one of the qualifying requirements for an award to be made it refers only to the initiating injury, ie to immediate results of the service incident or circumstances. For the reasons given above, that submission is incompatible with the necessary focus on the claimant's condition as at the date of decision. If that condition meets the definition of complex injury, even though the effect on the necessary number of structures has only developed after the initiating injury and perhaps only as a result of medical treatment, the claimant can come within a relevant descriptor if the other conditions are satisfied. If the medical treatment has been carried out properly as part of a generally accepted procedure, the payment of the benefit appropriate to the higher descriptor is not prevented by article 11(a)(iii); the predominant cause of the claimant's condition as at the date of the decision remains service and not the medical treatment.

Therefore, it is only when the nature of, or reasons for, the medical treatment demonstrates that the chain of causation by service is broken that article 11(a)(iii) can apply. We do not attempt to define the circumstances in which that will be so, which must await cases in which the issue arises. However an obvious example will be where the medical treatment is so grossly negligent, either in the decision to undertake it or in its administration or otherwise, as to be a completely inappropriate response (see paragraph 2-55 of the 18th edition of Clerk & Lindsell on Torts, as approved by the Court of Appeal in Webb v Barclays Bank plc [2001] EWCA Civ 1141 at paragraph 55). It is to such circumstances that the exception to paragraph (iii) of treatment is directed – that is, where the initiating injury occurs as a result of an initial injurious process while a serviceman is on military operations outside the United Kingdom and medical facilities are limited. In those circumstances, there need be no consideration of whether any aspect of the treatment may have been negligent. Subject to a claimant satisfying the other criteria, he would be entitled to an award.

However, in other circumstances where there has been negligence, consideration will have to be given as to whether the chain of causation has been broken in the particular context of the AFCS, so that compensation under the scheme will not be payable – although of course, if there has been negligence, the claimant will have a separate cause of action in tort. We stress that, where medical treatment is of a generally accepted kind, ie in accordance with the practice of a respectable and responsible body of medical opinion (and therefore is not negligent: Bolam v Friern Hospital Management Committee [1957] 1 WLR 582, especially at pages 586-7), or recovery has simply not progressed as well as would normally be expected (as in the appeals before us), the predominant cause of the injury will remain the original incident or circumstances, and therefore service.

The present appeals provide a good illustration of the general principle. AD suffered a gunshot wound and fractured femur and MM a fractured femur, which in each case was treated by the insertion of an intramedullary nail. It is not disputed that each claimant was treated appropriately by what are understood to be standard procedures for these types of injury. No doubt in these circumstances the overall consequences for both claimants would have been a great deal worse if they had not received that treatment (although of course that is not the test of whether the chain of causation has been broken). In the present case, none of the injuries which AD and MM are assessed as having at the dates of the decisions on their claims was predominantly caused by or made worse by the medical treatment.

The approach above is consistent with the operation of the other paragraphs of article 11(a), all of which appear to have been inserted from an abundance of caution in relation to matters which by definition are not caused by service. If, for example, the use of alcohol or tobacco was a predominant cause of a claimant's injury, the claimant would not be able to show under article 7 that service was a predominant cause of the injury. Similarly, if medical treatment of a condition were shown to be the predominant cause of an injury (here the claimant's condition at the date of the decision on his claim), a claimant would in any event fail to satisfy the requirements of article 7. Article 11(a) may therefore be regarded as helpfully emphasising what would in any event be the consequence of the proper application of article 7.

Choice of the appropriate descriptor

As a general principle, each injury should be categorised by the single descriptor most accurately describing it. That was the submission of both parties, and it is generally accepted by us (subject to the correct approach to Table 4). Generally, this section deals with the descriptors other than those in Table 4, with which we deal below: see paragraphs 55–76. However, it is crucial that this principle is applied only with a proper understanding of how, in accordance with the legislation, the injury or injuries encompassed by a claimant's current condition are to be identified.

It was also common ground between the parties at the earlier hearing that a fracture injury is not limited to placement within Table 8 (although Mr Rogers appeared to resile from this position at the later hearing). Again, we agree. The second Note to Table 2 clearly contemplates mal-united and non-united fractures as falling within the phrase "with complications" for that Table. In any event, it seems clear that where for example there is a severe crushing injury which technically may include a considerable number of fractures, it may be necessary to consider the criteria for a complex injury within Table 2 (and possibly for a physical disorder within Table 4, as considered below).

Taking into account the proper meaning of "injury" (see paragraphs 20–27 above), the correct approach to identify the descriptor(s) that apply in any given case is as follows.

(a) Consideration should be given to the claimant's condition as caused by the relevant service incident or circumstances (including the consequences of any appropriate medical treatment) at the date of the decision on the claim.

(b) All descriptors, as properly understood in law, in any of the Tables which apply to the claimant's current condition should be identified.

We do not consider that the approach advocated by the Secretary of State – to select the Table first and then merely to select a descriptor from it – is correct. That approach led to the errors which have resulted in these appeals, by leading the Secretary of State to consider only "fractures" because the claimant's injury was stated in the medical records or the claim form to be a fracture, rather than looking at his overall condition resulting from the service incident. Although in theory the selection of appropriate descriptors requires consideration of all the Tables, in practice in any particular case many Tables can be quickly discarded. In the present appeals only Tables 2 and 8 – and, possibly, Table 4 –- could be relevant.

(c) Consideration should be given to all the descriptors identified under (b), and any lower-rated descriptors that are encompassed in a higher-scoring descriptor should be discarded.

For instance, if a claimant has lost both front teeth, in Table 2 he will satisfy both Item 44 (loss of one front tooth) and Item 39 (loss of two or more front teeth). Item 44 is discarded, and Item 39 retained. A lower-rated descriptor may of course be encompassed in a higher-rated descriptor in a different Table.

Although the discarding process will often result in the retention of only the highest scoring descriptor from each Table, that will not necessarily be the case. For example, in Table 5 (amputations), whilst there could be several descriptors satisfied on loss of some body parts, of which the lesser descriptors are discarded as encompassed in the greater, if a claimant is left with Item 20 (loss of both feet at ankle), Item 42 (persistent phantom limb pain) and Item 43 (stump neuroma with trigger point stump pain), then all of those descriptors would be retained, even though they all relate to the same part of the body and the same service incident. Identification of one descriptor does not exclude consideration of any of the others, subject to its not being already encompassed within another descriptor. A service incident may give rise to more than one appropriate descriptor, whether or not in the same Table. In D's case, for example, there was both a gunshot wound and a fractured femur, attracting different descriptors in different Tables. However, if his overall condition also fell within a higher-rated descriptor in Table 2 or Table 4, it would then be necessary to ask whether those two discrete descriptors were encompassed within the complex injury descriptor or the physical disorder as appropriate. If so, they would be discarded and AD would be left with the complex injury or physical disorder descriptor.

(d) All of the descriptors that remain after the discarding process are to be applied to the claimant, subject to the rules in article 15(2) and (3) limiting the amount of the lump sums payable for the second and third injuries sustained in one incident and excluding payment for other injuries.

(e) However, if it is considered that no provision has been made within the Tables for the type of injury a claimant has sustained, and the injury satisfies the other requirements of article 20 (such as inclusion within the International Statistical Classification of Diseases and Related Health Problems), then the making of a temporary award under article 20 should be considered. (article 20 is considered further below (see paragraphs 74–75).

The parties each suggested that, in identifying the appropriate descriptor(s), a comparison with awards in the civil courts might be helpful. We do not agree. The AFCS is a discrete statutory scheme to compensate service persons for injury received or aggravated as a result of service where negligence is not a factor to be taken into account, by operating a tariff scheme. Awards at Level 11 and above attract a guaranteed income payment payable from the day after the service person leaves the service until death. Awards made in the civil courts are based on a finding of fault and are generally made for capital sums. No comparison is therefore legitimate.

We accept that, as a cross check, in some cases it may be helpful to make comparison with other awards at the same level within the Tables. However, there are dangers and certainly limitations to this form of comparison. Mr Rogers submitted at the later hearing that the descriptor at Item 3, Table 2 (Complex injury covering all or most of the area from thigh to knee, knee to ankle, shoulder to elbow or elbow to wrist, with complications, causing permanent functional limitation and restriction) which gives an award at Level 6, the same as for Item 24, Table 5 (Loss of one leg below knee (trans-tibial)), is an indication that our proposed interpretation of complex injury is wrong. However, this ignores that a claimant awarded Level 6 under Table 2 who satisfies the requirement of permanent functional limitation and restriction may have at least as serious a condition overall as a claimant with an amputation properly treated and able to cope with a suitable prosthesis.

It should also be noted that the scope of some descriptors is broad, reflecting the robust nature of the AFCS. For example, in the legislation with which we are concerned (ie that of the Order and not the subsequent amending Orders), there is no qualification of the words "permanent functional limitation and restriction". It appears that any degree of limitation beyond the trivial will qualify, provided that, as at the date of the decision under appeal, it appears that it will be permanent. Nor is there any test of severity in the definition of "complex injury" in the Note to Table 2; when applied to a limb, "complex injury" means any injury that affects most or all of the specified physiological structures irrespective of severity (so long as the effect is more than trivial). What is to be considered is solely the descriptor which a particular claimant satisfies under the Order in the particular circumstances of his injury. If experience suggests that a class of injury attracts a descriptor which is considered to give inappropriate compensation relative to other descriptors, then that is a matter for political rather than judicial judgment.

What is meant by "covering" in Table 2

The description of both "complex injury" and "injury" in several items in Table 2 is by reference to "covering", eg Item 1 ([Complex] injury covering all or most of the area from thigh to ankle or shoulder to wrist …).

"Covering" is only used in Table 2. Items 1, 3, 6 and 8 relate to "Complex injury covering all or most of the area [of part of a limb] … causing permanent functional limitation and restriction". Items 19 and 22 relate to "Complex injury covering all or most of the area … causing or expected to cause functional limitation and restriction at 26 weeks with substantial recovery beyond that date". Items 4, 7, 10 and 16 relate to "Injury covering all or most of the area … causing permanent functional limitation and restriction". Item 25 relates to "Injury covering all or most of the area … causing or expected to cause functional limitation and restriction at 26 weeks with substantial recovery beyond that date". There is one, Item 29, which is simply "Injury to all or most of the area from … causing or expected to cause functional limitation and restriction at 26 weeks with substantial recovery beyond that date", which attracts a lower tariff than any of the other descriptors.

Mr Rogers submitted that "covering" in Table 2 means "covering and affecting" the relevant area; the intention being, in the case of injuries to the limbs, to restrict the application of the relevant descriptors to injuries which directly affect most of the area of the skin in the specified part of the limb, such as de-gloving injuries or perhaps to abrasions or lacerations covering most of that area. In the later hearing he submitted that the effects must be contiguous. In support of this restrictive meaning, as can be seen from the Item descriptions set out above, "covering" is associated with "area" (ie "Complex injury covering all or most of the area from …"). Furthermore, some dictionary definitions are supportive; one of the Oxford Shorter English Dictionary definitions is "occur here and there over the whole surface of". However, in our judgment this submission cannot be correct when viewed in the overall context of Table 2.

In our judgment, "covering" cannot mean simply "visible on" or even "affecting" the surface of an injured limb because the Note to the Table expressly states that:

"When applied to limb injuries the expression "complex injury" means that the injury affects all or most of the following structures: skin, subcutaneous tissues, muscle, bone, blood vessels and nerves."

Only one of these structures– the skin – would necessarily be visible: and in any event to construe the provision as Mr Rogers suggested would be to distort this definition, effectively to redefine it as affecting the skin and three other specified structures.

The wording or context of Table 2 gives no indication as to why the limb injury descriptors use the word "covering" rather than, say, "affecting" (which is the term used in the Note relating to complex injuries set out above). However, in our view the word in its context carries the meaning of inclusiveness or of being "within boundaries". Although we consider dictionary definitions of limited value in this context, this accords with at least one of the Oxford English Dictionary definitions to which we were referred by Mr Lyons: "to include, comprise, extend over".

We consider that, to fall within one of the descriptors referring to "covering" an area of a limb, an injury must affect all or most of the part of the limb between (and including) the joints specified in the descriptor in question, whether or not visible on the surface. In the case of complex injuries, the Note indicates that all or most of the structures are together affected by the injury, not that all those structures must be affected throughout the entire part affected by the injury.

For the sake of completeness, we should add that the recent amendment made from 16 September 2008 by The Armed Forces and Reserve Forces (Compensation Scheme) (Amendment No 2) Order 2008 (SI 2008/2160) has added a further Note to Table 2: "When applied to any limb, the expression "injury covering all or most of the area" means external injury causing direct damage to contiguous areas of the limb circumference. In the case of a lower limb this may include direct damage to the buttocks." Neither claim before us falls to be determined under the amended scheme, and we have ignored this note for the purposes of this decision. The proper construction of the amended scheme will have to await consideration in a future case in which it does apply.

In the light of our findings in paragraphs 33–34 that, in the absence of negligence sufficient to break the chain of causation, the results of medical treatment are to be included in assessing the claimant's overall condition at the date of decision, the fact that it is medical treatment which expands the areas affected by each claimant's initiating injury, so that at the time of decision they may fall within a descriptor as "covering all or most of the area from thigh to knee", would not preclude the injury from being accepted as satisfying that descriptor. For example, each claimant in these appeals has had an intramedullary nail inserted through the bone marrow, D's being downwards from the thigh and M's upwards from the knee, as part of accepted treatment for their respective injuries.

In our judgment "covering" must nonetheless relate to the physiological structure and, when applied to a body part such as a limb, to something structural within that limb. This is reflected in the Note concerning "complex injury" for the purposes of Table 2, which defines that term when applied to limb injuries in terms of physiological structures. For instance, following a femur fracture, the insertion of an intramedullary nail or leg muscle wasting resulting from the fracture would concern and affect the structure of the leg and therefore may fall within the term "covering".

However, if a leg injury leads to gait problems which themselves result in the claimant having symptoms (e.g.) in the back, then neither the gait problems (which are a mere effect of the structural injury to the leg) nor the problems with the back (which may or may not result from structural changes in the back, but cannot be said to fall within the definition of "covering" an area of the limb) would be encompassed within the definition of "covering" an area of the limb. Such problems may however be proper for consideration under a separate descriptor or Table 4 as appropriate. It is to Table 4 that we now turn.

Application of Table 4

Table 4 (physical disorders including infectious diseases) has particular difficulties in its application.

Leaving aside Table 3 (which, because it covers mental rather than physical conditions, has no possible overlap with the other Tables), the Tables other than Table 4 are focused on particular medical conditions, although within those conditions specific Items may be more particularly described by reference to a secondary criterion based on functional limitation or restriction. For example, in Table 8, the condition "Fractures or dislocations of both hips, both ankles, both shoulders, both elbows or both wrists" is divided into Item 2 ("… causing permanent significant functional limitation and restriction") attracting a Level 10 award, and Item 4 ("… which have caused, or are expected to cause, significant functional limitation and restriction at 26 weeks, from which the claimant has made, or is expected to make a substantial recovery beyond that date") at Level 11. In all of these Tables, other than Table 4, the focus remains upon a discrete condition.

However, to the contrary, the focus of Table 4 is upon functional restriction or limitation, all of the descriptors (except infertility) being described simply in terms of "physical disorder" (on its face, a broad term) with a functional restriction and limitation of a specific actual or anticipated severity and/or time span for the functional deficit or life expectancy. The range is from a "severe" deficit with a life expectancy of less than five years (Item 1, Level 6) to a "moderate" deficit at six weeks with substantial recovery within 13 weeks. The descriptors address the loss of function at various dates from the "date of injury or onset of the disease" (Note to the Table). There is no category for a physical disorder where the functional restriction and limitation is less than moderate, or where that functional deficit lasts less than six weeks, but otherwise the whole range of functional restriction and limitation is covered.

The difficulty in interpreting Table 4 arises because of the tension between the premise that each injury should be categorised by the single descriptor most accurately describing it (see paragraph 39 above), and the fact that most injuries can be described alternatively in terms of the precise condition (the focus of the Tables other than Table 4) or in terms of the functional deficit suffered (uniquely, the focus of Table 4) giving rise to the possibility that most injuries can fall within at least two descriptors: one outside Table 4 based on condition, and one within Table 4 based upon functional deficit. The Order itself does not give any overt indication as to how Table 4 is to interact with the other Tables within the Schedule.

The term "physical disorder" is not only capable of having a broad scope, its natural and ordinary meaning is wide. Whilst some dictionary definitions stress that it implies functional disturbance rather than manifest structural change, the term certainly does not preclude conditions including such change. The term's usual meaning would cover any disturbance of a claimant's physical condition (the restriction and categorisation being left to degrees of functional deficit).

However, Mr Rogers submitted that, in context, generally the term must be given a restrictive meaning. Because each injury is to be categorised by the single descriptor most accurately describing it, he submitted that Table 4 could not be construed as being exclusively focused on functional deficit. It must be interpreted as extending only to injuries that are not within the subject-matter of the other Tables. When all those other Tables have been considered (he submitted), all that remain are illnesses or diseases. Therefore these are the limit of the scope of Table 4. Not only are diseases and illnesses patently covered by Table 4 – the heading specifically includes "infectious diseases", and the Note as to duration refers to "onset of illness" – he submitted that elsewhere in the Order the word "disorder" is associated primarily with illness. For instance, the definition of "illness" in article 2 is "a physical or mental disorder" included in one of the standard statistical classifications, and the definition of "late onset illness" in article 3 refers to disorders of the liver, kidneys or central nervous system and to mental disorders.

Most potently, Mr Rogers submitted that, if "physical disorder" were to include any disturbance of a claimant's physical condition, then this would leave no scope for article 20 (temporary awards) because, so long as the relevant condition caused at least moderate functional restriction and limitation for at least six weeks, it would inevitably fall within one of the Table 4 descriptors. It is a necessary condition of the operation of article 20 that the claimant has sustained an injury "of a description for which no provision is made in the tariff" (article 20(1)(a)). If provision has been made in Table 4, that condition could not be met. In his submission, there would consequently be problems in the practical application of the AFCS if "physical disorder" were given a wide interpretation. For example, the maximum award under Table 4 is only at Level 6 (severe functional limitation and restriction, and a reduction of life expectancy below five years). Permanent severe functional limitation and restriction in itself without any expected reduction in life expectancy only attracts an award at Level 9. If, say, it were discovered that the specifically defined categories of brain injury which lead to the highest levels of award under Table 6 do not include some other kinds of brain injury with equally devastating results, temporary awards over Level 6 could not be made to the affected claimants because their injuries would already be provided for by Table 4. The article 20 procedure could not apply. That was a result which, he submitted, Parliament could not have intended.

In respect of the central part of Mr Rogers' submission (set out in paragraph 60 above), we accept of course that illnesses and diseases are covered by Table 4. However, that would not be as restrictive as Mr Rogers perhaps suggested. There are a great many physical conditions resulting from exposure to physical, biological, chemical, environmental or other agents, including the effects of processes as opposed to specific incidents, that in our view must be included within Table 4. Many of the industrial diseases prescribed for the purposes of industrial injuries benefits (Social Security (Prescribed Diseases) Regulations 1985, Schedule 1) may equally result from service and would fall squarely within any definition of illness and/or disease, such as various cancers and infections, asthma or chronic bronchitis and emphysema. So, we consider, would conditions such as tenosynovitis, carpal tunnel syndrome and hand arm vibration syndrome resulting from (for example) persistent use of powered tools or the repeated use of the hands in manual work. In our view, if the resulting functional limitation and restriction were to reach at least a moderate level for a long enough period, all those conditions would fall within Table 4.

However, we do not agree that, looking at the Order as a whole, the word "disorder" is associated primarily with illness. In the Tables in Schedule 4 there are many more instances of "disorder" being used in a broad general sense, reflecting the ordinary meaning of the word. Thus, Table 6, headed "Neurological disorders" includes a wide range of injuries. Although the heading specifically includes "spinal cord, head or brain injuries" which somewhat limits the significance of the use of the word "disorders", it was not thought inappropriate to include such injuries and their consequences within that heading. Table 9, headed "Musculoskeletal disorders", covers a wide range of conditions including many sorts of ligament injuries, muscle and tendon injuries and traumatic back injuries, as well as other conditions regardless of how the condition is causally linked to service. The existence of Table 3 "Mental disorders" is neutral. There is therefore nothing in the general use of the word "disorder" to associate it specifically with disease and illness. Indeed the indications are that something broader is generally intended.

Further, Mr Rogers' submission concerning the Note to Table 4 is at best two-edged because, in the context of duration of effects, as well as there being a reference to "date of … onset of illness" there is also a reference to "date of injury", which is at least suggestive that the scope of the Table goes beyond diseases and illnesses (although the strength of this suggestion is seriously weakened by the same full rubric being used in all the Tables, most of which clearly do not relate to illnesses).

We shall return to the other main point made in Mr Rogers' submission, ie that relating to article 20 (set out in paragraph 61) (paragraphs 74–76).

Mr Lyons relied upon two particular submissions.

(1) He submitted that there is no necessary inconsistency between the detailed specifications of descriptors in other Tables and the more general scope of the Table 4 descriptors. He pointed to the differences in the language used. In the case of a fracture, the Table 8 descriptors would apply where there is "significant" functional limitation and restriction up to 26 weeks. Although "moderate" may indicate a lesser degree of limitation and restriction than "significant", Item 6 of Table 4 then adds the requirement of permanency. Item 5 requires "severe" limitation and restriction, a higher test than "significant".

(2) Mr Lyons also submitted that even if Table 4 were based upon criteria of functional deficit whilst the other Tables were based upon condition, when seen in proper context there would be nothing irrational or even odd in that. On this construction, the AFCS would have a large number of discrete condition descriptors particularly at a lower level and where effects are not expected to be long-lasting. He suggested that, particularly (although not exclusively) at that lower level, a discrete condition descriptor would be more likely to encompass the whole of the claimant's condition and could be easily identified. Any potentially appropriate functional deficit descriptor from Table 4 would be likely to be at a lower level, and it could quickly be discarded. However, if the effects of a condition are potentially more serious and/or more long-lasting, it is sensible to shift the focus away from the condition to the degree of functional limitation and restriction. Thus, if a claimant has a fracture of one femur causing significant functional limitation and restriction beyond 26 weeks (without qualifying for a complex injury descriptor under Table 2), that injury would attract an award at Level 12 under Item 13, Table 8. No higher award could be made under Table 8 even if the limitation and restriction were to be well beyond "significant" and expected to last for, say, life rather than for 26 weeks and one day. In those circumstances, Mr Lyons submitted, it would be appropriate and understandable for an award at Level 9 to be made under Item 4, Table 4 (or, dependent upon the facts, at Level 11 by virtue of Item 6 of that Table). Therefore, amongst other things, he submitted that Table 4 should operate as a long-stop to make good a failure in other Tables to provide additional descriptors for particular injuries beyond a certain level which may cater for routine cases, but not for those with unusually severe or unexpected functional effects.

Mr Lyons' first submission was carefully thought out, but we do not find it compelling. As we have indicated, the difference between the Table 4 descriptors and those in other Tables is not simply the difference between the general and the specific. The difference is as to the relevant categorisation focus or criterion, the former being based on functional deficit and the latter on condition. Mr Lyons' submission failed adequately to recognise this fundamental difference. We do not consider that Table 4 can be reconciled with other Tables in the way he suggests.

We return to Mr Lyons' second submission below (paragraphs 71–73).

Whilst the submissions of Mr Rogers and My Lyons each have their merits, neither is entirely satisfactory. The construction proposed by Mr Rogers artificially limits the usual meaning of "disorder" as it is used even elsewhere in the Tables, which has a far wider compass than just disease and illness. It also fails to mark the fundamental difference on the face of the Tables between Table 4 (focused on functional deficit) and the other Tables (focused on condition) and in our view would do significant violence to the words used in Table 4. On the other hand, the construction contended for by Mr Lyons does not sit well with the principle of the AFCS that each injury is to be categorised by the single descriptor most accurately describing it, because it leads to most injuries being categorised in terms of conditions outside Table 4 and separately in terms of functional deficit within Table 4, Table 4 effectively being in competition with (rather than complementary to) the other Tables. The construction also makes it difficult to identify the ground that is left for the procedure for temporary awards under article 20. Each construction therefore does some damage to the integrity of the language of the Order. No tertium quid was suggested to us, nor can we readily think of any. The question is, which construction does less violence to that integrity?

In the absence of any Parliamentary statements or other admissible documents throwing light on what the words of the Order (and specifically Table 4) were intended to mean, we can only look at the structure and context of the Order itself in accordance with the well-known and well-established principles of statutory interpretation to construe the meaning of Table 4, subject to what we have accepted above about the evident purposes of the AFCS, at a fairly broad level. On this basis, we are more persuaded by Mr Lyons' approach.

We cannot see any reason why "physical disorder" should be restrictively construed as Mr Rogers suggested. Such a construction is contrary to the usual meaning of the words used (and particularly to the usual meaning of "disorder" in the medical sense). It is contrary to the broader meaning given to the word "disorder" elsewhere in the Tables and, with respect to the submissions of Mr Rogers, we consider that construction to be particularly forced and artificial. In our view, Mr Lyons' submission that a "physical disorder" embraces any disturbance of a claimant's physical condition (including disease or illness) is preferable. Table 4 categorises the broad spectrum of conditions contained within the phrase "physical disorder" by reference to the criterion of functional restriction and limitation.

Despite the difference in the relevant criteria for Table 4 and the other Tables, on Mr Lyons' interpretation the general approach to the identification of appropriate descriptors (set out above: see paragraph 41) is equally applicable. At step (b), any descriptor based on functional deficit in Table 4 should be identified as well as condition descriptors from the other Tables. At step (c), however, any lower-rated descriptor from Table 4 based on functional deficit would be discarded in favour of a condition descriptor from one of the other Tables where that deficit arose from that condition (and, equally, any lower-rated descriptor from a condition Table would be discarded in favour of a descriptor from Table 4 where that deficit arose from that condition). Any consequent lack of logical coherence results from the difference in the criteria upon which Table 4 is based when compared with the other Tables. The procedure in paragraph 41 effectively prevents "double recovery" in respect of the same condition and the functional deficit arising from it. Where no applicable condition descriptor has been identified, but a claimant has functional consequences arising from the condition which amount to a "physical disorder", then, subject to what we say below about article 20 (paragraphs 75–76), consideration should still then be given to the descriptors in Table 4.

For these reasons, we do not consider Mr Lyons' construction does any fundamental damage to the principle of the AFCS that each injury is to be categorised by the single descriptor most accurately describing it. We consider the suggested rationale for having a functionally-based Table (see paragraph 66(2) above) to have force. In particular, it mitigates the potential harshness of an essentially condition-based scheme where the functional consequences of the condition are unusually severe or long-lasting. We consider that, by including Table 4, it was the intention to make that mitigation, and to ensure that service personnel who are injured as a result of service and who have unusually severe and/or long-lasting functional consequences are differently compensated from those who do not have those consequences from the same injury or condition.

That does leave the difficulty raised by the substantial submission made by Mr Rogers in relation to article 20 (see paragraph 61 above). Article 20 is integral to the AFCS as a tariff-based scheme in allowing payments in the form of a temporary award to an appropriate claimant whose claim is made and decided at a time when the tariff does not include a descriptor covering his particular condition and who could therefore not take advantage of a subsequent amendment to the Order except by means of a fresh claim (with all the problems of delay in payment and the possible expiry of time-limits that that may entail). That essential function of article 20 would be undermined (Mr Rogers submitted) if its operation were to be excluded whenever the functional limitation and restriction resulting from the physical condition is, or is expected to be, at least "moderate" for the minimum period required to qualify for a descriptor under Table 4 (ie six weeks from the date of the injury), because a Table 4 descriptor based on functional deficit would be applicable to the claimant and article 20 would thereby inevitably be excluded by article 20(1)(a).

However, we do not accept that that is a consequence which would necessarily follow from adopting Mr Lyons' approach. It was part of Mr Rogers' submissions that Table 4 has features that make it different from all the other Tables dealing with physical conditions. We agree. Indeed, we consider that obviously to be so, but find that particularly relevant to the proper interpretation of article 20 and the requirement that the claimant "has sustained an injury of a description for which no provision is made in the tariff" and which is listed in the International Classification of Diseases and Related Health Problems or in the Diagnostic and Statistical Manual of Mental Disorders. In our view, if a claimant has sustained a listed physical injury which would fall within the general subject-matter of a Table other than Table 4 and for which no provision (rather than merely inadequate provision) is made in that Table, article 20 could operate even though the claimant's functional limitation and restriction might also qualify for a descriptor in Table 4. In those circumstances it could legitimately be said that no provision for an injury of the particular description had been made, because it did not appear in any of the Tables focused on particular physical conditions, where it would be expected to be found. Addressing Mr Rogers' specific example on that basis, a claimant with a listed brain injury that is not precisely covered by any of the descriptors in Table 6 and with resulting functional limitation and restriction which would qualify for a descriptor under Table 4 could still invoke article 20 (although there would be no practical point in doing so unless there was a good case for an award at a higher level than available under Table 4). That is sufficient to deal with the specific submission made for the Secretary of State.

However, we cannot ignore a further problem stemming from the failure to state expressly in the Order how Table 4 interrelates with the rest of the tariff (see paragraph 58 above). There is no other Table which could apply to eg asthma or malaria, whereas eg brain injuries are included within Table 6. Could it have been intended that a claimant suffering from some specific physical disease or illness such as asthma or malaria which does not fall within the general subject-matter of any of the "condition" Tables, could then invoke article 20 on the basis that Table 4 does not provide for an injury of that specific description? We suspect that was not intended. Since the fundamental nature of Table 4 is different from that of the "condition" Tables, we consider it is possible, without undue violence to the statutory language, to construe it as having made exclusive provision for all the injuries which do not fall within the scope of any other Table, thus excluding the operation of article 20. (We have not specifically considered Table 3 on mental disorders, but plainly the same argument could be made about its interaction with article 20). If such a construction cannot be adopted, then the difficulty must await either an amendment of the Order, or a concluded judicial opinion on the problems of construction discussed in this paragraph in a case where the point directly arises for decision and is fully argued. Despite the existence of this further problem, we consider Mr Lyons' approach to do less damage to the structure of the scheme as a whole than does Mr Rogers'.

Therefore, for the reasons given above, we consider that "physical disorder" in Table 4 has its ordinary and natural meaning, to encompass any disturbance of a claimant's physical condition (including, but not limited to, disease or illness) and descriptors within Table 4 should be considered in any particular case in accordance with the guidance in paragraph 72 above.

Date of the decision against which an appeal is made

Article 43 of the Order refers to a right of appeal to the PAT under section 5A(1) of the Pensions Appeal Tribunals Act 1943 in respect of a decision given by the Secretary of State. Section 5A(1)((b) provides for appeals against "specified decisions" on the issue of whether the decision was rightly made. Regulation 3(1)(a) and (b) of The Pensions Appeal Tribunals (Armed Forces and Reserve Forces Compensation Scheme) (Rights of Appeal) Regulations 2005 (SI 2005/1029) ("the Rights of Appeal Regulations") indicates that decisions which determine "whether an award of benefit is payable" and the "amount payable under an award of benefit" are specified decisions. Section 5B(b) of the Act precludes the taking into account of any circumstances not obtaining at the date when the decision appealed against was made. It was submitted by both parties before us, and was accepted by the PAT below in each case, that where there has been a reconsideration of the original decision under article 45, the date of the decision appealed against is the date of the reconsideration, whether or not that reconsideration has led to a revised decision. Article 45 requires the Secretary of State to reconsider an original decision on an application to do so by the claimant within three months or where an appeal is made against the original decision without such an application having been made.

Article 46 of the Order deals with the finality of decisions. Article 46(3) provides that:

"In this article and article 48, a final decision is a decision –

(a) under article 43 where either –

(i) there has been no application for a reconsideration under article 45; or

(ii) there has been such an application and the Secretary of State has confirmed the original decision; [emphasis added]

(b) revised by the Secretary of State following a reconsideration under article 45;

…"

The only proper construction of article 46(3) is that where the Secretary of State has carried out a reconsideration which confirms the original decision, it is the date of the original decision which is relevant for section 5B(b). In our judgment the appeal must lie against the decision that is given finality by the legislation. That is consistent with Regulation 3 of the Rights of Appeal Regulations. If on reconsideration under article 45, the Secretary of State confirms the article 43 decision, then it is the article 43 decision that determines whether an award is payable and its amount, and against which any appeal is made. Where the reconsideration results in a revision of the original decision by the Secretary of State, the revised decision is the relevant decision for the purposes of section 5B(b).

We accept that it may well be considered more helpful for an accurate assessment of a claimant's condition that it be assessed at the later date of reconsideration and that it is curious and anomalous that the Secretary of State may on reconsideration take account of the up-to-date circumstances, while a PAT may not, but that is what the Order clearly and unequivocally requires.

However, the circumstances existing at the date of reconsideration are very likely to be some evidence of the circumstances existing at the date of the decision appealed against, which can be taken into account whether or not the evidence itself was available at the time of that decision (see Secretary of State for Defence v Rusling [2003] AER (D) 186 at paragraph 72). At the date of the original decision a report on a claimant may record him as "making good progress", an opinion which will apply at the date the report is given, and which will take into account the length of time which has elapsed since the initiating injury occurred. If this is disputed, corroborative evidence of the position may well be available by the date of the reconsideration of the likely long-term effects of a claimant's injury. Again, the cases before us are illustrative. In M's case, the fact that he needed a second operation, which was carried out approximately a month after the decision appealed against, is some evidence of his condition at the date of that decision. In D's case, a treatment note from Headley Court on 8 June 2006 (after the original decision of 26 April 2006, but before reconsideration on 30 August 2006) refers to AD as "playing golf with the aid of a golf buggy to get round the course. He has completed 2 [weeks] of a work placement….which involves 3–4 half days a week currently …". That is a report of his condition at the time it was given, but may have relevance to his condition at 26 April 2006.

Given that an award may only be revised by the Secretary of State under article 48 if within ten years from the date of the final decision the injury in respect of which that decision was made (ie the claimant's condition at the date of the decision) has either (a) become worse or (b) caused a further injury to develop and in either case the worsening or the development is unexpected and exceptional, it is crucial to have the most accurate evidence of a claimant's condition and prognosis at the date of the decision appealed against. Whilst we do not need to make any decision on the point, it may be that neither claimant before us would be able to take advantage of article 48. The evidence before us, which may not be complete, has not indicated that anything which has happened in their failure to recover as well as hoped is both unexpected and exceptional.

We endorse and emphasise the PAT's comments made in these cases with regard to the necessity for the Secretary of State to consider all available evidence of a medical nature and to ensure that it has the most up-to-date medical evidence available to it when making its determinations and to produce all of this to any tribunal if an appeal is made.

Discussion and conclusions on the Secretary of State's submissions in the case of AD

In the light of those principles we now move to the individual appeals, taking that of AD first.

Mr Rogers for the Secretary of State put forward eight categories of asserted error of law by the PAT. We adopt his numbering (Roman numerals) below.

(I)

Mr Rogers submitted that the PAT misinterpreted the meaning of "fracture" in Table 8, by limiting it to simple or straightforward fractures and suggesting that fractures of the femur which in the ordinary use of language would be considered complex should fall within Table 2. With regard to whether a fracture injury could ever fall within Table 2 (because it would in any event be covered by a descriptor in Table 8), Mr Rogers was ambivalent. At the earlier hearing he accepted that a fracture injury could fall within Table 2 if the other requirements of relevant descriptors in that Table were met: but, at the later hearing, he reverted to the proposition that Table 2 and Table 8 were mutually exclusive.

We accept that the PAT appears to have approached "fracture" in Table 8 as applying only to simple or uncomplicated fractures, and it thus made an error of law. Any form of fracture of a relevant bone counts as an injury within Table 8 if the other conditions as to type of fracture and the existence or otherwise of functional limitation and restriction are met. However, that does not have the restrictive effect asserted by the Secretary of State. For the reasons we have given in paragraph 40 above, merely qualifying for a fracture descriptor in Table 8 does not prevent the same condition from being considered as part of a descriptor in another Table, for instance as part of a complex injury under Table 2 or possibly as part of the history of a physical disorder under Table 4. Accordingly, the PAT was right in principle to consider whether AD qualified for any descriptors under Table 2 and did not need to adopt a restrictive view of "fracture" to reach that result. Any error of law under this head was therefore not material to the PAT's decision.

(II)

It was submitted that the PAT erred in law when awarding AD Item 3 of Table 2 by failing to apply the particular definition of "complex injury" in the Notes to Table 2 but rather applying the ordinary meaning of "complex". It was further submitted that the factors mentioned by the PAT as demonstrating the complexity of the injury related to the consequences of the surgical treatment of the injury, which could not be taken into account. For the purposes of Table 2, it was the initial injury itself that must affect all or most of the specified structures.

We accept the first part of that submission in the sense that the PAT's reasons failed to make it clear that it had considered the particular definition of "complex injury" in the Order or to make plain findings as to whether or not all or most of the specified structures were affected. On the other hand, what happened to AD on 16 September 2005 cannot possibly be analysed as anything other than a complex injury as defined in the Notes to Table 2. A high-velocity round passed through his thigh, breaking his upper femur. That must inevitably have affected each of the structures: skin, subcutaneous tissues, muscle, bone, blood vessels and nerves. Whilst there are other conditions attached to the complex injury descriptors that may reflect severity (such as permanent functional limitation), as we have explained in paragraph 44 in our general discussion of the meaning of "complex injury" and as submitted by Mr Lyons for D, the statutory definition does not necessarily involve any particular severity. Accordingly, the PAT's failure of explanation was not material to its decision, in the light of what flowed inevitably from its findings of fact.

As, under the legislation as then in force, the initiating injury suffered by D, and therefore its consequences, fell within the definition of "complex injury" simply by virtue of the course of the high velocity round through his thigh we do not have to consider the effect of medical treatment on the complexity of his injury. That is an issue in M's case, and we shall return to the point when discussing that case.

(III)

It was submitted that the PAT misconstrued the expression "with complications" in Item 3 of Table 2, as defined in the Notes to that Table, and accordingly erred in law in holding that AD satisfied the conditions of Item 3 in that respect.

When making findings of fact in paragraph 10(11) of its statement of reasons, the PAT said that AD had had a serious gunshot wound with complications including consequential tissue loss and calcification of tissues. In paragraph 10(13) the PAT referred to the development of myositis ossificans, the effects on range of movement in the hip and knee, the need to wear a wedge in the left shoe (in paragraph 10(7) described as needed to correct the fact that the left leg was slightly shorter than the right), and pain after running and when driving. It then said that:

"All of this also demonstrates 'complications' as required by the descriptor. Such complications include also evidence of significant psychological sequelae."

Mr Rogers submitted that the PAT had ignored the question of whether any of the statutorily specified complications was, or was not, present by the date of the decision under appeal, instead appearing to use the ordinary meaning of "complications". He also submitted that the evidence could not have supported a finding of the presence of any specified complication. None of the medical evidence mentioned any "gross shortening" of the left leg, which would surely have been reported if it had been present. Although AD said in his appeal in October 2006 that he had recently been told at Selly Oak Hospital that the fracture remained and could take another six months to heal and there was a note on 22 February 2006 of x-rays showing a possible area of non-union in the medial side of the femur, "mal-united or non-united fracture" is restricted to a permanent effect and the evidence did not support that construction. Mr Lyons accepted that the PAT's reasons were weak at this point, but suggested that the gunshot wound itself might have amounted to "vascular injury".

We accept the substance of the Secretary of State's submission. The only indication that the PAT was expressly considering the terms of the Note to Table 2 was the use of quotation marks round the word "complications" in paragraph 10(13) of its statement of reasons, which could just as easily have been a reference to the ordinary meaning of the word in the descriptor, as if there were no definition in the Notes. Many of the claimant's stated problems accepted by the tribunal as "complications" (eg psychological problems, pain, limitation of joint movement, loss of tissue and calcification of tissue) do not amount to any complication as defined in the Note, which supports the Secretary of State's view. Although there was mention of the use of a wedge in the left shoe, the tribunal made no attempt to grapple with the question of whether there had been a "gross" shortening of the leg as a result of the initiating injury. Nor was there any attempt to relate the evidence to the terms of any other specified complications.

We conclude that the PAT erred in law by failing to adopt the statutory meaning of "complications" or to identify which of the specified complications it accepted as existing in the claimant's case.

That error of law cannot be dismissed as immaterial to the result. On the assumption that the tribunal intended the shortening of D's leg to be the relevant "complication", there was a reference in the Headley Court discharge summary dated 8 March 2006 (page 20) to a "leg length discrepancy" having been corrected with a 5mm wedge, which had helped to reduce some left groin pain that AD had been experiencing (and see the treatment notes for 28 February 2006: "progressed to almost pain-free walking after 5... raise put in left shoe by physio"). It seems to us that, in the absence of any further evidence, whatever "gross" shortening might precisely entail, the degree of shortening potentially shown by that evidence is not enough. It could even be that the leg length discrepancy had existed before the incident of 16 September 2005 (as we understand is not uncommon) and only became problematic through interaction with the effects of that incident. In order for something to be a complication it must result, at least in part, from the service incident, not wholly from an independent cause.

The issue of a mal-united or non-united fracture is more difficult. The evidence before the PAT was thin, being more or less limited to that noted in paragraph 94 above. We reject the submission for the Secretary of State that only a mal-union or non-union that can be identified as permanent counts. Not all the categories listed as complications would be permanent in nature (eg septicaemia). In our judgment the question is whether at the date of the decision under appeal the fracture would be said to be mal-united or non-united. It may be that a fracture which is merely still in the course of healing would not fall into that category. We do not have the medical expertise to say, nor is it necessary for us to do so as the evidence before the PAT fell a long way short of showing that a "complication" as defined by the Note was present in April 2006. Nor does it appear that, at that date, AD had anything that could be termed a "vascular injury". Although Mr Lyons submitted that the gunshot wound might qualify under this heading, the tribunal made no findings on this. Myositis ossificans is different from osteomyelitis, and could not be taken into account.

(IV)

It was submitted that the PAT misconstrued the expression "injury covering all or most of the area from thigh to knee" in Item 3 of Table 2, and accordingly erred in law in holding that AD satisfied the conditions of Item 3 in that respect. Mr Rogers submitted that the PAT failed to make any findings of fact specifically relevant to that question or to show that it had expressly considered it. Mr Lyons for AD submitted that the findings of fact as to effects on the left hip and knee, groin and buttock pain, the calcification, the pattern of scarring, not to mention the fracture of the femur, showed an injury covering at least most of the area of the leg from thigh to knee without any need to consider the effect of medical treatment.

We accept that the PAT failed to address the question of whether the condition of "covering all or most of the area from thigh to knee" was satisfied under the legislation as then in force, and thereby went wrong in law. However, in the light of our conclusions of general principle, the presence of the intramedullary nail in the femur, about which there were clear findings, was enough in itself to satisfy the condition, given the indication of the length of the nail from the scars noted in the diagram shown at page 57, so that the error of law would not on its own justify setting the PAT's decision aside.

(V)

It was submitted that the PAT misconstrued the expression "permanent functional limitation and restriction" in Item 3 of Table 2, or took into account irrelevant matters, and accordingly erred in law in holding that AD satisfied the conditions of Item 3 in that respect.

The PAT made no findings of fact specific to this issue and did not mention it in its discussion of the conditions for satisfying Item 3, which it restricted to "complex injury" and "complications". It recorded D's evidence at the hearing of his continuing problems, but did not relate that evidence back to the circumstances as at the date of the decision under appeal (which it considered to be the date of reconsideration) or explore the prospects of recovery. There was plainly an error of law in its failure to explain how D's circumstances satisfied this condition.

The PAT's decision cannot be rescued by its findings of fact, because none was made on the question of prospects for recovery. It is true that, as we have previously noted in paragraph 44, the requirement in the legislation with which we are concerned does not prescribe any particular degree of functional limitation and restriction so that it appears that any degree beyond the trivial will qualify, provided that, as at the date of the decision under appeal, it appears that it will be permanent. It may also be that because the AFCS is based on injury, rather than disablement, one claimant may be properly awarded a lower-rating descriptor yet may have more seriously disabling permanent functional limitation and restriction than another claimant who is properly awarded a higher-rating descriptor under the Order. However, if the PAT took the view that some of the conditions it accepted would inevitably have some long-term non-trivial functional effect, its decision could only possibly be supported if that finding had been spelled out, which it was not.

The difficulty here for AD is that the next relevant descriptor in Table 2 which does not include the qualifying requirement of causing permanent functional limitation and restriction (assuming that he cannot be said to have a complex injury affecting all or most of the area from thigh to ankle) is Item 22, which is only at Level 12 (functional limitation and restriction at 26 weeks with substantial recovery beyond that date). That is the same tariff as Item 13 for fractured femur.

As we have discussed, there are no descriptors in Table 8 for fractures of one or both femurs which cause permanent functional limitation and restriction, nor are there any intermediate descriptors in Table 2 to cater for cases between "substantial recovery after 26 weeks" and "permanent functional limitation and restriction" or for cases that fall into the former category but have complications. In the light of our findings at paragraphs 55–76 above, the question of the potential relevance of Table 4 (physical disorders) may then be a live issue, although on the evidence before us only Item 6 at Level 11, "Physical disorder causing permanent moderate functional limitation and restriction" is likely to be under consideration.

(VI)

It was submitted that the PAT's decision to make a Table 2 award at Level 6 was perverse when D's circumstances were compared with those falling within other descriptors at Level 6.

We have already rejected Mr Rogers' wider submissions that the PAT ought to have stood back and considered the amount of the lump sum to be awarded plus the lifetime guaranteed income payment in comparison with the level of awards of damages for personal injury in the civil courts or of compensation paid under the Criminal Injuries Compensation Scheme. As said in paragraph 42, the AFCS is a discrete statutory scheme. The question for a PAT is as to the descriptors in the Tables to the Order that properly apply in the particular case before it. We have already commented in paragraph 43 on his comparisons between different descriptors attracting the same level of award. In our view, the ground of perversity does not add to the other grounds relied upon.

(VII)

Mr Rogers submitted that the PAT erred in law by misinterpreting article 11(a)(iii) on the effects of medical treatment. We have dealt with this point in setting out our general conclusions of law.

(VIII)

It was submitted that the PAT had erred in law in stating that the Secretary of State had acted incompatibly with Article 6 of the European Convention on Human Rights (right to a fair trial) in failing to obtain and put forward the records of D's treatment at Headley Court. It is now accepted that that aspect was not material to the PAT's decision.

For the reasons given under heads (III) and (V) above, the decision of the PAT must be set aside as erroneous in point of law. However, although we regret the further delay in the ultimate conclusion to D's claim, as we cannot make the further findings of fact necessary to determine the claimant's appeal it is more appropriate for the appeal to be remitted to a new First-tier tribunal which will include a medical member. Our Directions and observations are set out in paragraphs 126–131 below.

Discussion and conclusions on the Secretary of State's submissions in the case of MM

In respect of M, Mr Rogers submitted in his written skeleton argument that there were six categories of error of law by the PAT, which we deal with in turn (again using his Roman numbering).

(I)

The first submission may be disposed of briefly as it is the same as (VII) above in the appeal in respect of D, ie that the PAT had erred in law by misinterpreting article 11(a)(iii) on the effects of medical treatment. We dealt with this in our general conclusions (paragraph 31).

(II) and (III)

Mr Rogers submitted, as alternatives, either that the tribunal erred in making no finding on whether the claimant's injury caused permanent functional limitation and restriction or that it erred in making an implicit finding that the injury caused permanent functional limitation and restriction. In paragraph 10(5) of its findings the tribunal referred to the claimant as describing an injury "that will cause him problems for the rest of his life", and that "he describes future restrictions in the use of his legs which already cause him depression".

We have already said in paragraph 44 that the requirement in various descriptors that the injury should cause permanent functional limitation and restriction does not require any particular degree of functional limitation and restriction and that it appears that any degree beyond the trivial will qualify, provided that it appears that it will be permanent. In D's case, the tribunal did not consider the permanent effects of his injury at all. In M's case there were only the two very brief references above, which fell well short of the findings which would be necessary to establish that he satisfied the condition requiring there to be permanent effects of the injury. The tribunal made no adequate findings on whether MM would have permanent functional limitation and restriction, and was in error of law in this respect.

(IV)

It was submitted that it was perverse of the tribunal and/or unsupported by the evidence to select a descriptor at Level 8 having regard to the other conditions which qualify for an award at Level 8, potentially attracting a guaranteed income payment for life. As we have also said in paragraph 44, the question for a PAT is what descriptors in the Tables to the Order properly apply in any particular case. We repeat that if there is any apparent incongruence between the tariff levels attached to different descriptors in the Tables, that is a matter for Parliament to correct and not either the PAT (or now the War Pensions and Armed Forces Chamber of the First-tier Tribunal) or the Upper Tribunal. The PAT did not err by failing to make this suggested comparison.

Under this heading Mr Rogers also made a submission in response to an observation made by Mrs Commissioner Jupp when granting leave to appeal to which we return in paragraph 124 below.

(V)

Mr Rogers submitted that the PAT erred in failing to provide particular reasons for its decision in relation to:

"(a) why the injury "covered all or most of the area from thigh to knee";

(b) why the injury is complex bearing in mind the terms of the Note to Table 2; and

(c) why it has caused permanent functional limitation and restriction"

We have already dealt with (a) in our general principles in paragraphs 45–54, and with (c) in paragraph 122

On (b), as to why the injury is complex bearing in mind the Note to Table 2, in paragraph 10(8) the tribunal recorded that:

"It is not in our view satisfactory to infer that the descriptor simply includes any consequential scarring and any consequential injury to the knee caused by the fixing nail. The words of the descriptor do not in our view bear that interpretation. Nor is there anything in the Notes to the Table to support such a view. In our view the evidence establishes, instead, a complex injury. In our view it is necessary to move to Table 2 which deals with such injuries. The evidence satisfies the definition given in Table 2 – four of the necessary defined factors being involved [which must be a reference to the Notes]."

Although the tribunal did not approach the matter in the manner we have set out in paragraph 41, it was correct in approaching the matter on the basis that the effects of the consequential medical treatment should be taken into account. It did not consider whether (unlike D's case, where the initiating injury itself caused a "complex injury") M's injury could satisfy the criteria for a complex injury only because of the subsequent medical treatment and if this was therefore sufficient to prevent MM from satisfying that descriptor. However, as we have held above, it is a claimant's condition at the date of decision which is decisive and the medical treatment he has had is to be taken into account (paragraphs 23, 24 and 31). Depending on the evidence, the insertion of an intramedullary nail, extending as it does up through the marrow of the femur may, or may not, have the result that the injury (here the claimant's condition at the date of the assessment) satisfied the criteria for an award of Item 11 of Table 2 at Level 8.

The fact that MM might satisfy the criteria for a complex injury only after insertion of the intramedullary nail would not preclude Item 11 from being the appropriate descriptor for his injury, but in D's case there is diagrammatic evidence of the extent of the intramedullary nail, which shows the intramedullary nail covered most of the area from thigh to knee. There is no equivalent in the case papers for M. The tribunal recorded in paragraph 10(6) of its reasons that the examination findings were that the claimant had two well healed but unsightly longitudinal scars, one 50 cms long down the distal thigh and another 5 cm long across the patella. It is not plain to us from the papers why there should be a 50cm scar from the insertion of the intramedullary nail, but if this does indicate the extent covered by the nail then the claimant would satisfy the requirement for the injury to "cover" most of the area from thigh to knee, although it may still not satisfy the definition of "complex injury". The position may have been plain to the tribunal but if so, is not adequately recorded in its findings. Also, as found in paragraph 114 the tribunal again made no adequate findings on whether or not the injury would cause permanent functional limitation and restriction, which is one of the categories required to establish satisfaction of the descriptor for the award it made under Table 2.

In relation to these matters, the tribunal did err in law.

(VI)

It was submitted that if the PAT was not satisfied that a proper prognosis could be given, it should have adjourned to obtain further medical evidence, particularly with regard to permanent functional limitation and restriction. We would have no quarrel with that proposition, subject to the point made earlier in paragraphs 83 and 84, that the Secretary of State should do everything possible to have up to date medical reports available both before making his own decision, and for the tribunal should there be an appeal. In the light of our findings there was an error of law in this respect, although we appreciate that as the tribunal itself considered there would be permanent functional limitation and restriction it would have seen no need to adjourn.

There is a further error in that, as mentioned in paragraph 15, when MM asked for a reconsideration, he listed his difficulties as including that his leg had shortened and that he had other resulting problems in other limbs (page 22). This is not recorded as having been mentioned at the hearing, and may not have been a continuing problem, but in the light of his assertions, and its relevance to whether the claimant's injury was "with complications" at the date of the decision appealed against, the tribunal should have investigated and made a finding on it and was in error not to do so.

Although the tribunal also erred in law under heads II, III, V and VI of the grounds of appeal in its decision, which we set aside, the evidence is not presently available to us to enable us to make our own decision in this case either and, with our similar regret about the further delay, it too must be remitted to a new First-tier tribunal in accordance with our Directions and observations in paragraphs 126–131.

As mentioned in paragraph 116 in his submission on head (IV) of the grounds of appeal, Mr Rogers also responded to an observation made by Mrs Commissioner Jupp when granting leave to appeal that:

"Unlike the previous Scheme, the present 2005 Scheme, under which the claim in this appeal has been made, makes no provision for taking into account the age of a claimant; is a tribunal to ignore this completely in making its assessment?"

In Mr Rogers' submission, while age is to be completely ignored under the AFCS, the medical prognosis sometimes determines that one descriptor should be selected rather than another (for example by reference to the degree of functional limitation and restriction anticipated within, at or beyond 26 weeks from the date of the initiating injury). The prognosis may generally take into account the age of a claimant, who will typically be young and likely to make a full recovery, and to that extent only will age be taken into account. This argument was not expanded in the hearing. It will be a matter for those concerned with the future development of the AFCS in terms of policy to consider whether or not it would be justified to complicate the current provisions for a set lump payment for each tariff level by adding a differential for those who will suffer the effects of the disabling condition for much longer than others.

Directions for the new tribunal

For the reasons set out above, we set aside the decisions of the PAT in each case, and remit the cases to the First-tier tribunal.

Our Directions for the rehearing are as follows:

(1) There shall be a single joint oral hearing of both appeals in front of a differently constituted panel of the War Pensions and Armed Forces Compensation Chamber of the First-tier Tribunal.

(2) All issues are open for consideration by the new tribunal which should take into account that:

(i) it is considering the overall condition of both claimants at the dates of the decisions appealed against;

(ii) it should follow our approach laid down in paragraph 41 in selecting the appropriate descriptors, as amplified by our findings on the interpretation of "covering" and the possible application of Table 4 if appropriate; and

(iii) it should make appropriate and adequate findings of fact, in particular with regard to the terms of the potentially applicable descriptors and the definitions set out in the Notes to the various Tables, taking into account the comments above.

(3) All parties, including the Secretary of State, are advised to consider what further medical evidence should be made available for the new tribunal, bearing in mind that it is evidence of the circumstances obtaining at the dates of the decisions appealed against which is required.

The claimants will bear in mind that this decision is limited to matters of law; the new tribunal will make its decision in each appeal on the evidence before it and the outcome may not be different or may be less or more helpful to each claimant.

We were asked by Mr Lyons to direct that the rehearing by the First-tier Tribunal should be expedited and we agree it is advisable to conclude these appeals as soon as practically possible. Those listing the rehearings will no doubt bear that comment in mind.

However, the ultimate conclusion of these claims will depend upon any further appeal from the present decisions. . The parties were given an indication of our conclusions in principle in our Direction of 2 October 2008, and with a view to expediting the matter overall we restrict the period for making any application to the Upper Tribunal for permission to appeal to the Court of Appeal to 4pm on 27 February 2009. Clearly if the parties are each able to give an early indication of their intentions, this may assist the arrangements for an earlier rehearing by the First-tier Tribunal.

In the meantime, we trust we have understood correctly that compensation payments have already been made to both claimants at the level accepted by the Secretary of State as being appropriate.

Status of a decision by a Three-Judge Panel of the Administrative Appeals Chamber of the Upper Tribunal

In relation to this decision it may be helpful if we repeat here what was recently said by a Three-Judge Panel of the Administrative Appeals Chamber of the Upper Tribunal (the AAC) in Dorset Healthcare Trust v MH [2009] UKUT 4 (AAC) at [37].

"Until further guidance is available as to the precedential authority to be given to various constitutions of the AAC (either through a Practice Direction or case law), the principles laid down in paragraphs 19–21 of R(I) 12/75 as applicable to Tribunals of Commissioners in social security cases should continue to be applied in the AAC where a Three-Judge Panel sits to hear a case involving a question of law of special difficulty or an important point of principle or practice (see the Practice Statement of the Senior President of Tribunals dated 30 October 2008 on the composition of tribunals in relation to matters that fall to be decided by the Administrative Appeals Chamber of the Upper Tribunal on or after 3 November 2008). Such cases will be clearly identified on their face. Making only the necessary adjustments to take account of the new arrangements, those guidelines are as follows:

(i) Judges of the Upper Tribunal in the AAC speak with equal authority. All their decisions may be cited to the Upper Tribunal, First-tier Tribunals and other tribunals from which appeals to the AAC come and the appropriate decision-making authorities. Where they decide questions of legal principle they must be followed by the appropriate decision-making authorities and the tribunals below in cases involving the application of that principle, unless they can be distinguished. It should be borne in mind that similarity in underlying facts does not automatically give rise to similarity in the principle to be applied and questions of fact should not be elevated into questions of legal principle.

(ii) If confronted with decisions which conflict, the appropriate decision-making authority and tribunals below must prefer the decision of a Three-Judge Panel of the AAC or a Tribunal of Commissioners to that of a single judge or Commissioner.

(iii) In so far as the AAC is concerned, on questions of legal principle, a single judge shall follow a decision of a Three-Judge Panel of the AAC or Tribunal of Commissioners unless there are compelling reasons why he should not, as, for instance, a decision of a superior court affecting the legal principles involved. A single judge in the interests of comity and to avoid confusion on questions of legal principle normally follows the decisions of other single judges. It is recognised however that a slavish adherence to this could lead to the perpetuation of error and he is not bound to do so."

Note

It is to be noted that some aspects of this decision will apply only to claims made before either The Armed Forces and Reserve Forces (Compensation Scheme) (Amendment No 2) Order 2008 (SI 2008/2160) operative from 16 September 2008, or The Armed Forces and Reserve Forces (Compensation Scheme) (Amendment No 2) Order 2008 (SI 2008/2942) (operative from 15 December 2008) came into force.

Mr Justice Hickinbottom CP

Judge J Mesher

Judge E A Jupp

5 February 2009

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You are here: BAILII >> Databases >> Upper Tribunal (Administrative Appeals Chamber) >> [2009] UKUT 10 (AAC) (05 February 2009) URL: http://www.bailii.org/uk/cases/UKUT/AAC/2009/10.html Cite as: [2010] AACR 5, [2009] UKUT 10 (AAC)