Flight Sergeant (ret'd) Barbara Eyton-Hughes & Anor, R (on the application of) v The Secretary of State for Defence

This judicial review concerned the scope of "redress" under s.340C(2)(b) of the Armed Forces Act 2006 and associated Regulations and Ministry of Defence policy in relation to service complaints by serving or former service personnel. The court considered (i) whether service complaint bodies (Decision Bodies and Appeal Bodies) can award post-termination (post-resignation or post-discharge) financial losses as part of "appropriate redress", (ii) whether such redress falls within the delegated authority of decision-makers and when Treasury approval is required, (iii) the distinction between quantifiable and non-quantifiable payments (particularly where "stress" or reputational impact is alleged), and (iv) the procedural fairness requirements for appeals (whether an oral hearing or advance warning and an opportunity to respond was required).

The court held that the statutory phrase "appropriate redress" under s.340C and the Regulations is wide enough in principle to include post-termination losses (both post-discharge and post-resignation), subject to causation, remoteness and mitigation considerations, and subject to any limits of delegated authority and Treasury approval. The court accepted the distinction in MoD policy between quantifiable and non-quantifiable awards but found that the policies do not preclude a quantifiable award for losses linked to resignation where those losses fall within the decision-maker's authority (or where Treasury approval is obtained).

The court rejected the Claimants' procedural complaints. The Appeal Body was entitled to re-investigate and reach a different assessment of whether the mishandling of earlier complaints had in fact caused "significant" or "irretrievable" career damage and was rational in concluding that, on the available evidence, the Claimants' belief that they had no choice but to resign was not objectively reasonable. An oral hearing was not required and, on the facts, the Appeal Body provided sufficient opportunity to comment on the new evidence. All grounds of judicial review were dismissed.

This judicial review concerned two related service complaint appeals by senior Royal Air Force non-commissioned officers (Flight Sergeant (ret'd) Barbara Eyton-Hughes and Warrant Officer (ret'd) Rudolph Pierre) who had resigned from the RAF and later brought service complaints about the mishandling and delay of complaints made against them in 2018–2021. Both Decision Bodies upheld maladministration and undue delay and awarded non-quantifiable consolatory payments of £3,000 each; the Appeal Body (on rehearing) endorsed the findings of maladministration but, after further enquiries (including SJAR appraisals and a career manager's input), concluded the maladministration had not caused the asserted "significant" (first Claimant) or "irretrievable" (second Claimant) career damage and that it was not reasonable for them to believe they had no choice but to leave. The Appeal Body confirmed a consolatory award and added £500 to each award, making £3,500 each. Both Claimants applied to the Service Complaints Ombudsman, who declined to investigate further; they then sought judicial review.

Nature of the application: judicial review of the Appeal Body's decision on redress (award size and the refusal to award post-resignation losses), and of alleged procedural unfairness (failure to hold oral hearings, failure to give fair warning or opportunity to respond to enquiries, and the Appeal Body's approach to evidence and authority to award particular categories of redress).

Issues framed by the court:

• Whether the statutory concept of "appropriate redress" under s.340C AFA and the Service Complaints Regulations can include post-termination losses and, if so, whether those losses fall within the delegated authority of DBs/ABs or require Treasury approval;
• Whether awards for losses connected to stress or reputational damage are necessarily limited to non-quantifiable consolatory payments;
• Whether the Appeal Body acted irrationally in concluding on the facts that the Claimants had not suffered the alleged career damage and that resignation was not objectively reasonable;
• Whether procedural fairness required an oral hearing or, at least, that the Appeal Body give advance warning and an opportunity to make further representations before reaching the challenged conclusions;
• Whether the Service Complaints Ombudsman should have been the correct defendant or the object of challenge.

Court's reasoning (concise): the court interpreted the statutory wording (s.340C and the Regulations) purposively and in context and concluded that the statutory concept of "appropriate redress" is broad enough to include compensation for post-termination losses in principle. That does not mean such losses are assessed by transplanting ordinary tort or employment law measures; rather the DB/AB have a discretionary evaluative role subject to public law review (rationality) and to MoD/Treasury delegation limits. The court read MoD policy (JSP 831 and Annexes A/B and JSP 472) as providing procedures and limits (particularly Treasury approval requirements for non-quantifiable awards and ex-gratia payments) but not as unlawfully fettering the statutory discretion. The court accepted that allegations of stress are not automatically "personal injury" for the purpose of excluding claims from the service complaints regime and that awards for stress can in some circumstances give rise to quantifiable redress (subject to delegation and Treasury approval).

On procedural fairness the court applied the established caselaw (including Anderson, Clayton, Osborn, Pathan and Miller) and concluded there was no breach: the Claimants had multiple opportunities to present their case, the Appeal Body gave the Claimants opportunity to comment on the additional career evidence it obtained, the Appeal Body plainly treated the Claimants' subjective beliefs as genuinely held but evaluated their objective reasonableness, and an oral hearing was not necessary. The Claimants' grounds were dismissed. The court also explained that the Ombudsman route did not bar judicial review but noted the Claimants had pursued the Ombudsman and been declined.

The claim is dismissed. The High Court held that (i) the statutory concept of "appropriate redress" in s.340C AFA and the Service Complaints Regulations is broad enough in principle to include post-termination losses, subject to causation, remoteness, mitigation and limits of delegated authority and Treasury approval; (ii) MoD policy (including distinction between quantifiable and non-quantifiable payments) does not unlawfully fetter that discretion and can require Treasury approval for novel or unquantifiable awards; (iii) the Appeal Body was entitled to re-investigate, to prefer the objective career evidence it obtained and to conclude that the maladministration had not caused the asserted career damage and that resignation was not objectively reasonable; (iv) procedural fairness did not require an oral hearing and the Claimants had adequate opportunity to comment on the material, so there was no unfairness that would have produced a substantially different outcome. The judicial review is dismissed.