JOC v The Secretary of State for Defence (AFCS)

For hearing-loss claims spanning the replacement of the war-pensions scheme by the Armed Forces Compensation Scheme, an award under the Naval, Military and Air Forces etc. (Disablement and Death) Service Pensions Order is confined to disablement due to service before 6 April 2005. In articles 42(8) and 42(9), “termination of service” must therefore be read in that statutory context. Audiometric evidence close to 6 April 2005, rather than evidence at the end of later service, is to be used to assess pre-2005 disablement.

A detrimental revision is lawful where the original assessment resulted from ignorance or a mistake as to a material fact or law. An inaccurate description of the review ground on an administrative form does not remove that statutory power. A mere difference of opinion remains insufficient.

The claimant served in the Territorial Army from 1984 until his medical discharge in 2017. His service therefore fell partly within the war-pensions scheme and partly within the Armed Forces Compensation Scheme.

The Secretary of State initially awarded a 30% war-pension assessment for bilateral noise-induced sensorineural hearing loss. On review, he reduced the assessment to nil by using a 2009 audiogram, which was closer to 6 April 2005 than the 2017 audiogram used originally. The First-tier Tribunal, by a majority, upheld that revision under file reference ASS/00427/2019.

The claimant appealed on the basis that the review lacked a lawful ground and that the hearing loss should have been assessed at the end of his entire service. While the appeal was pending, a separate AFCS appeal succeeded. The central issue was the proper construction of articles 42(8) and 42(9) in a spanning-service case.

1. Appeal dismissed. The First-tier Tribunal made no error of law in upholding the nil assessment under the Naval, Military and Air Forces etc. (Disablement and Death) Service Pensions Order.

2. The Secretary of State had a lawful basis to revise the original 30% assessment to the claimant’s detriment. The original decision had proceeded on the mistaken premise that the 2017 audiogram was good evidence of hearing loss due to service before 6 April 2005. That was capable of being a material mistake of fact or law for the purposes of article 44. The inaccurate references on form WPS0375 to a change in medical opinion or policy could not restrict the statutory power where a valid ground existed.

3. The Tribunal reiterated the protection in article 44(4): a mere difference of opinion on the proper assessment cannot justify a reduction. A First-tier Tribunal should ordinarily state expressly which condition in article 44(4) is satisfied and why, although omission of an express reference is not inevitably fatal if the requisite finding is clear in substance.

4. Article 5(1) confines an award under the 2006 Order to disablement due to service before 6 April 2005. Accordingly, in articles 42(8) and 42(9), “termination of service” means the end of the service period governed by that Order. The contextual reading permitted by article 1(2) displaces the general Schedule 6 definition. The assessment must use evidence at or about 6 April 2005 and exclude hearing loss arising from later service.

5. The evidence nearest the end of pre-2005 service was below the article 42 threshold of an average 50dB hearing loss in each ear. The 2017 audiogram could not import into the 2006 Order hearing loss arising during post-2005 service. The claimant’s later successful AFCS claim did not alter that conclusion.

6. As a matter of best practice, related claims under the two compensation schemes should ordinarily be heard together, to avoid a claimant temporarily receiving compensation under neither scheme.

• Upper Tribunal (Administrative Appeals Chamber): dismissed the claimant’s appeal and held that the First-tier Tribunal’s decision involved no error of law: [2022] UKUT 208 (AAC).

• First-tier Tribunal (War Pensions and Armed Forces Compensation): by a majority, upheld the Secretary of State’s reviewed nil assessment for bilateral noise-induced sensorineural hearing loss under file reference ASS/00427/2019.