JH v Secretary of State for Defence

For the permanent-mental-disorder descriptors in Table 3 of Schedule 3 to the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011, permanence is assessed holistically. The definition of permanent functional limitation in article 5(7)(a) does not directly define a permanent mental disorder, but it is a useful guide. Relevant matters include appropriate clinical management, maximum medical improvement, and whether common available treatment options remain untried.

A tribunal does not err merely by describing earlier CBT as other than formal psychological treatment where its conclusion independently rests on further recommended trauma-focused treatment, such as EMDR, remaining available. Reasons are adequate if they deal intelligibly with the substantial issues and leave an informed reader in no real and substantial doubt about the basis of the decision.

The appellant, a former soldier diagnosed with PTSD, received an Armed Forces Compensation Scheme award under Table 3, Item 4, Level 12 of Schedule 3 to the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011. On appeal, the First-tier Tribunal increased the award to Item 3, Level 10, finding that the disorder was expected to continue for five years but was not permanent.

The appellant appealed to the Upper Tribunal, contending that Item 1, Level 6 applied. He alleged a material factual mistake, procedural unfairness, inadequate reasons, and a misunderstanding of the consultant psychiatrist's evidence. The central issue was whether the First-tier Tribunal had made a material error of law in finding that further trauma-focused treatment remained relevant to whether the PTSD was permanent.

1. Appeal dismissed. The First-tier Tribunal made no material error of law in selecting Table 3, Item 3, Level 10 of Schedule 3 to the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011.

2. The parties accepted the First-tier Tribunal's approach to permanence. The ordinary meaning of permanent, as lasting indefinitely without change, cannot alone resolve permanence for mental disorders. Article 5(7)(a) did not directly define a permanent mental disorder in Table 3, but properly informed the assessment. Appropriate clinical management, maximum medical improvement, and untried common treatment options were relevant considerations.

3. The finding that the appellant had not received formal psychological treatment was immaterial to the result. The tribunal had recorded the treatment already undertaken and based its conclusion independently on recommended EMDR therapy that remained unaccessed. On a fair reading of the expert report, formal treatment meant PTSD-specific trauma-focused CBT or EMDR. The earlier online CBT sessions, which provided low-level coping tools, could reasonably be treated as preparation rather than that specialist therapy.

4. There was no procedural unfairness. The expression did not have a technical meaning requiring further submissions, and its application to the CBT sessions was not determinative.

5. The reasons met the standard explained in DS v SSWP (ESA) [2019] UKUT 347 (AAC). They intelligibly addressed permanence, the treatment evidence, and the reasons why the condition had not reached maximum medical improvement. Nor had the tribunal misunderstood the expert's poor-prognosis assessment; a poor prognosis did not necessarily establish permanence.

• Upper Tribunal (Administrative Appeals Chamber): appeal dismissed; the First-tier Tribunal decision was held to involve no material error of law.
• First-tier Tribunal (War Pensions and Armed Forces Compensation Chamber): in case AFCS/00735/2020, allowed the appeal in part and substituted Table 3, Item 3, Level 10 for the Secretary of State's Item 4, Level 12 award.