MA v The Secretary of State for Defence

An appeal which has become academic will not necessarily be dismissed. The Upper Tribunal retains a discretion to decide an otherwise academic legal issue where doing so is an appropriate use of its jurisdiction. That discretion should be exercised cautiously, particularly where the issue is fact-dependent and abstract guidance may misstate or confuse the law. Where the appellant has obtained all the benefit that success could provide, and the decision producing that result is final and is not under appeal, the Upper Tribunal may dismiss the appeal without deciding the underlying legal issue.

The appellant appealed against the First-tier Tribunal’s decision of 16 September 2022, which had dismissed his appeal concerning neck and back pain and held that his claim under the Armed Forces and Reserve Forces Compensation Scheme was out of time. Permission to appeal was granted on the construction of article 47(1) of the Armed Forces and Reserve Forces Compensation Scheme Order 2011, particularly the relationship between the time limits for an injury and an illness.

While the appeal was pending, the Secretary of State reviewed the earlier decision and awarded compensation. The appellant did not appeal against that award. The central issue was whether the Upper Tribunal should nevertheless determine the construction of article 47(1).

1. The appeal was dismissed. The Secretary of State’s later award meant that the appellant had obtained all that a successful appeal could have achieved. The appeal was therefore academic.
2. The later award was not before the Upper Tribunal and was a final decision under article 54(1) of the Armed Forces and Reserve Forces Compensation Scheme Order 2011. Neither party challenged it.
3. Not every academic appeal should be dismissed. The relevant principle was recognised in R v Secretary of State for the Home Department ex parte Salem [1991] AC 491 (HL), and in VS and RS v Hampshire CC [2021] UKUT 187 (AAC) and DD v Sussex Partnership NHS Foundation Trust and Secretary of State for Justice, MIND intervening [2022] UKUT 166 (AAC). However, the court should exercise caution where the proposed ruling is fact-dependent and would not affect the parties.
4. The Upper Tribunal declined to determine the construction of article 47(1). The competing arguments were better addressed in a case where the answer would make a material difference to whether a claim was in time. The court noted, without deciding the issue, that the phrase requiring identification of whichever event was earlier might create difficulty for a construction treating article 47(1)(a) and (d) as mutually exclusive.
5. The court also expressed uncertainty about the statutory basis on which the Secretary of State had reviewed the earlier decision after the First-tier Tribunal’s decision. It assumed, without deciding, that article 59 permitted review of the Secretary of State’s earlier decision.

• Upper Tribunal (Administrative Appeals Chamber): appeal from the First-tier Tribunal’s decision of 16 September 2022 dismissed as academic.
• First-tier Tribunal (War Pensions and Armed Forces Compensation Chamber): dismissed the appellant’s appeal against the Secretary of State’s decision that the claim was out of time and that the condition was not predominantly caused by service.