Christopher Pearson v The Secretary of State for Defence

Under Article 16(1)(b) of the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011, the correct descriptor is the one that best describes the injury and its effects after an evaluation of all relevant evidence. The footnotes distinguishing severe and moderate permanent mental disorder overlap; they indicate, rather than exhaustively define, the circumstances falling within each category. A tribunal must consider both the claimant’s work trajectory since onset, including any progressive reduction in capacity, and the ability to work regularly in a less demanding job. Regular work is relevant but not determinative. The assessment runs from the onset of the disorder to the date of the decision.

The appellant, a former Royal Navy consultant ear, nose and throat surgeon, was awarded compensation under the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011 for permanent mental disorder causing moderate functional limitation or restriction.

The First-tier Tribunal dismissed his appeal against the descriptor awarded. The Upper Tribunal, in a decision dated 12 August 2022 in UA 2021 001017 WP, dismissed his further appeal. The central issue before the Court of Appeal was whether the tribunals had wrongly treated regular work in a less demanding job as determinative and had assessed only the period after the appellant’s discharge, rather than his work capacity from the onset of illness to the date of decision.

1. Appeal allowed. The decision of the Upper Tribunal was set aside and the matter was remitted to the First-tier Tribunal, differently constituted, for a fresh decision.
2. The proposed report of the Independent Medical Experts Group was irrelevant and inadmissible as an aid to construction. Any difference between the recommendation and the enacted wording could not safely establish Parliament’s intention. The meaning of the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011 had to be derived from its terms.
3. Table 3 of Schedule 4 establishes categories of increasing severity. Article 16(1)(b) requires the decision-maker to identify the descriptor which best describes the injury and its effects. That requires an evaluation of all relevant evidence and, where the footnotes overlap, an assessment of fact and degree.
4. Footnotes (a) and (b) are indicative of circumstances falling within the severe and moderate categories. They are not mutually exclusive or definitive. The ability to work regularly in a less demanding job is relevant, but it is not the sole or conclusive test. A claimant may fall within the severe category even though each less demanding job undertaken has itself been regular.
5. The tribunal must use as a baseline the work appropriate to the claimant’s experience, qualifications and skills at the onset of the illness, compare it with the nature and level of work undertaken since onset, and decide which descriptor is appropriate at the date of decision. Both the trajectory of the claimant’s work capacity and the regularity of less demanding work must be considered. The First-tier Tribunal and Upper Tribunal therefore erred by treating regularity as determinative and by considering only the period after discharge.
6. The specialist knowledge of the First-tier Tribunal justified remittal for reconsideration in accordance with the Court of Appeal’s guidance. The fresh tribunal must decide which descriptor, in all the circumstances, best describes the injury and its effects.

1. Court of Appeal (Civil Division) — In [2024] EWCA Civ 150, the appeal was allowed. The Upper Tribunal’s decision was set aside and the matter was remitted to the First-tier Tribunal, differently constituted.
2. Upper Tribunal, Administrative Appeals Chamber — HH Judge Najib, sitting as a Deputy Upper Tribunal Judge, dismissed the appeal in a decision dated 12 August 2022. No neutral citation is stated.
3. First-tier Tribunal, War Pensions and Armed Forces Compensation Chamber — The tribunal dismissed the appellant’s appeal in written reasons dated 24 March 2021.
4. Veterans UK — By letter dated 7 July 2018, the appellant was awarded compensation on the moderate functional limitation or restriction descriptor.