Secretary of State for Defence v HM

Article 8 of the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011 is expressly subject to the sporting-activity exclusions in Article 11. Where an injury is found to be wholly or predominantly attributable to service, the tribunal must still determine whether Article 11 excludes benefit and whether an exception applies.

For Article 11(6)(a), Defence Council approval may be conditional. Approval of rugby did not extend to civilian or civilian charity rugby undertaken at the participant’s own risk and in their own time. “Recognition” by the relevant Service requires more than awareness of an event. Clinical advice or permission to play does not recognise the event, its organisation or training. A one-off civilian charity match is not undertaken for the purpose of meeting or maintaining required service physical standards merely because it incidentally improves fitness.

The claimant, a Royal Navy member, injured his left knee while playing in a civilian charity rugby match. He claimed compensation under the AFCS, contending that earlier service-related injury and medical advice contributed to the injury.

The First-tier Tribunal found service causes predominant and allowed the appeal. It treated Article 11 as unnecessary to determine, while indicating that the Article 11(6) exceptions would probably apply. The Secretary of State appealed, arguing that Article 11(5) excluded compensation and that neither Article 11(6)(a) nor (b) was satisfied. The central issues were whether Article 11 had to be considered after a favourable Article 8 finding, and how the two sporting exceptions were to be interpreted.

1. Appeal allowed. The First-tier Tribunal’s decision involved an error of law. It was set aside under section 12(2)(a), (b)(ii) and (4) of the Tribunals, Courts and Enforcement Act 2007, and the decision was remade: the claimant was not entitled to compensation and the Secretary of State’s disallowance was confirmed.

2. Article 8 is expressly subject to Article 11. A tribunal which finds that an injury is wholly or predominantly caused by service cannot award benefit without determining whether an Article 11 exclusion applies. It may consider Article 11 at the outset or after the Article 8 questions, but a favourable Article 8 finding requires the further Article 11 analysis.

3. Article 11(5) required a finding on whether the injury was sustained or worsened wholly or partly by participation in sporting activity. That requirement was met on the agreed basis that the claimant’s injury was sustained or worsened partly by playing in the match.

4. Under Article 11(6)(a), the tribunal had to determine separately whether rugby had been approved by the Defence Council as a sport enhancing fitness, initiative and endurance, and whether the Royal Navy had recognised the particular event and its organisation and training before it occurred. Rugby was approved, but subject to conditions. The approval did not extend to civilian or civilian charity rugby.

5. “Recognition” requires more than the Service’s awareness that an event will occur. In context, it means the conferral of a formal status akin to approval or sanction. Clinical advice about injury management, or permission to train and play, did not recognise the match or its organisation and training. The Article 11(6)(a) exception therefore could not apply.

6. Article 11(6)(b) also did not apply. Although the charity match could incidentally maintain physical fitness, its purpose was to raise funds and promote the charity, not to meet or maintain the physical standards required of service members.

7. Article 11 therefore ended the eligibility issue. It was unnecessary to determine the disputed causation issues under Ground 2 or to remit the case for specialist factual findings.

• Upper Tribunal (Administrative Appeals Chamber): appeal allowed; the First-tier Tribunal decision dated 10 January 2023 was set aside and the decision was remade.
• First-tier Tribunal (War Pensions and Armed Forces Compensation Chamber): appeal allowed on the basis that the left knee injury was predominantly caused by service.