CRP v Secretary of State for Defence

Under the Armed Forces and Reserve Forces Compensation Scheme, the descriptors for severe and moderate functional limitation are hierarchical and mutually exclusive. A claimant who can work regularly in a less demanding job falls within the moderate descriptor, even if the work is part-time. The question whether work is done regularly is fact-sensitive. Relevant considerations include whether it is steady, reasonably frequent and undertaken at reasonably uniform intervals, but there is no rigid minimum number of days or hours. The decision-maker must assess the claimant’s capacity as at the date of the Secretary of State’s decision, while considering all relevant evidence, including earlier or later evidence where it assists that assessment.

The appellant, a former Surgeon Commander and ENT consultant, claimed compensation for a permanent mental disorder under the Armed Forces and Reserve Forces Compensation Scheme. The Secretary of State placed the condition under Table 3, Item 2, for moderate functional limitation or restriction. The First-tier Tribunal dismissed his appeal, finding that his work as a fee-paid medical member was a less demanding job which he could undertake regularly.

The appellant appealed, arguing that the First-tier Tribunal had misconstrued the distinction between Items 1 and 2, assessed the wrong period, failed to consider his work history and acted procedurally unfairly. Permission to appeal was granted so that the Upper Tribunal could provide guidance on the relevant legal provisions.

1. Appeal dismissed. The First-tier Tribunal’s decision involved no material error of law and stood.
2. Article 16(1)(b) of the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011 requires the descriptor which best describes the injury and its effects. Items 1 and 2 provide a hierarchy. Functional limitation cannot be both severe and moderate, so the tribunal must determine which descriptor is most appropriate on all the relevant evidence.
3. Footnote (b)’s deliberate use of the word regularly means that footnote (a) must not be read as including work which falls within footnote (b). If the claimant can work regularly in a less demanding job, Item 2 applies and Item 1 cannot apply. Item 1 does not require that the claimant work only intermittently, although intermittent work may be one example of work that is not regular.
4. Regularly is an ordinary, context-sensitive word. It generally denotes work which is steady, reasonably frequent and undertaken at reasonably uniform intervals. These are relevant factors rather than a strict definition. Part-time work is not excluded, and neither full-time work nor a prescribed number of working days is required. The assessment remains fact-specific.
5. Under section 5B(b) of the Pensions Appeals Tribunals Act 1943, capacity must be assessed as at the date of the Secretary of State’s decision. The tribunal may consider all relevant evidence from the onset of the illness and, where relevant, evidence after the decision date. Such evidence assists the assessment but cannot determine retrospectively what work the claimant was capable of doing at the relevant date.
6. On the facts, the appellant’s ability to sit as a fee-paid medical member for about one day per week was sufficiently steady, frequent and regular. Once that finding was made, the First-tier Tribunal was required to conclude that Item 2 applied. The procedural grounds also failed: the Secretary of State’s representative was an advocate, not a witness liable to cross-examination, and the First-tier Tribunal gave adequate reasons.

• Upper Tribunal (Administrative Appeals Chamber) — [2022] UKUT 232 (AAC): appeal dismissed; the First-tier Tribunal decision stood.
• First-tier Tribunal (War Pensions and Armed Forces Compensation Chamber) — 22 March 2021, file AFCS/00201/2020: appeal against the Secretary of State’s decision dismissed.
• Secretary of State for Defence — 7 July 2018: appellant’s condition placed under Table 3, Item 2, with a moderate functional limitation or restriction.