Secretary of State for Defence v CAW

Entitlement to an allowance for lowered standard of occupation requires that the claimant’s disablement, rather than external labour-market conditions, makes the claimant incapable of following a suitable occupation with equivalent gross income. Under Article 15(1)(b), suitability is assessed by reference to the individual’s education, training and experience.

Unemployment, redundancy for cost-saving reasons, or a pragmatic acceptance of lower-paid work does not establish entitlement where the claimant remains capable, despite the disablement, of doing a suitable higher-paid occupation. The assessment under Naval, Military and Air Forces (Disablement and Death) Service Pensions Order 2006 is directed to reduced earning capacity caused by service disablement.

The claimant, a former Gunner Private receiving a 50% war-pension assessment, sought an Allowance for Lowered Standard of Occupation after taking voluntary redundancy from a civilian Concierge Team Leader post in December 2020. That post paid more than his regular service occupation. After almost a year unemployed, he accepted lower-paid work as a Concierge in November 2021.

The First-tier Tribunal allowed the appeal in part, holding that the claimant was entitled to the allowance from 1 November 2021. The Secretary of State appealed. The central issue was whether Article 15(1)(b) permitted the Tribunal to treat the claimant’s inability to obtain a suitable higher-paid job in the prevailing labour market as establishing incapacity caused by disablement.

1. The Secretary of State’s appeal was allowed. The First-tier Tribunal’s decision involved an error of law, was set aside, and the claimant’s appeal against the decision of 28 January 2022 was dismissed.

2. Article 15(1)(b) of the Naval, Military and Air Forces (Disablement and Death) Service Pensions Order 2006 requires a staged inquiry. The claimant must first be permanently incapable, because of disablement, of following the regular service occupation. The further question is whether that disablement also makes the claimant incapable of following any other suitable occupation with equivalent gross income.

3. The latter requirement is not free-standing. The causal requirement in the opening words of Article 15(1)(b) governs it. The relevant incapacity must result from the accepted disablement, not from redundancy, an employer’s cost-cutting decision, a lack of vacancies, or wider labour-market conditions.

4. The claimant’s former Concierge Team Leader role remained suitable, having regard to his education, training and experience, and he remained capable of doing it. His redundancy was unrelated to disablement. The same remained true when he later accepted lower-paid work as a Concierge: the absence of a higher-paid vacancy, rather than disablement, prevented his return to a Team Leader role.

5. The Tribunal therefore erred by treating the claimant’s pragmatic decision to accept lower-paid work, and the economic climate, as part of statutory suitability. Those matters had no place in the Article 15 assessment. Internal departmental guidance was not relied on. The Upper Tribunal re-made the decision under section 12(2) of the Tribunals, Courts and Enforcement Act 2007; no remittal was necessary because the material facts were undisputed.

• Upper Tribunal (Administrative Appeals Chamber): Allowed the Secretary of State’s appeal, set aside the First-tier Tribunal’s decision, and re-made the decision by dismissing the claimant’s appeal.
• First-tier Tribunal (War Pensions and Armed Forces Compensation Chamber): On 26 October 2022, allowed the claimant’s appeal in part and found entitlement to ALSO from 1 November 2021.
• Secretary of State: On 28 January 2022, refused the claimant’s fresh claim for ALSO.