GE v The Secretary of State for Defence

A guaranteed income payment under the Armed Forces and Reserve Forces Compensation Scheme Order 2011 cannot be paid for any period before the member’s service ends. This applies equally to regular and reserve members.

Article 64 must be read consistently with article 16(10). Article 64(2)(c) does not permit payment from a pre-service-end claim date where article 64(2)(b) applies. A reservist’s release from a call-out does not itself mark the end of service if the reservist remains a member of the reserve forces.

The appellant was an Army Reserve doctor who received a final award for post-traumatic stress disorder at level 8 under the Armed Forces and Reserve Forces Compensation Scheme Order 2011. The award entitled him to a guaranteed income payment, but he remained in service until 12 July 2019.

The Secretary of State made the payment effective from 13 July 2019. The First-tier Tribunal dismissed the appellant’s challenge to that date on 19 July 2021. The appellant contended that payment should instead begin from his 2015 claim date, or from his release from call-out in 2014. The central issue was the proper construction of articles 16(10) and 64 of the Order for a reservist who remained in service.

1. Appeal dismissed. The First-tier Tribunal made no error of law. Article 16(10) of the Armed Forces and Reserve Forces Compensation Scheme Order 2011 plainly provides that a guaranteed income payment is not payable until the day after the member’s service ends, and is not payable for any earlier period.

2. The provision applies to reserve as well as regular members. The definition of service includes service in the armed forces and reserve forces. The calculation of the payment by reference to salary when service ends also supports that construction.

3. Article 64(2)(b) governed the appellant’s award. It made the payment payable on the day after his service ended. Article 64(2)(c) applied only where neither article 64(2)(a) nor (b) applied, and could not override the express prohibition in article 16(10).

4. The statutory language was clear and produced no absurdity. The Explanatory Notes could therefore only confirm, rather than alter, its meaning. This was consistent with the approach in R(O) v SSHD [2022] UKSC 3.

5. The appellant’s release from call-out in 2014 did not end his service because he continued as a reservist and later served again. If discharge on medical grounds had been established, that circumstance was addressed by article 64(2)(a); it did not justify extending article 64(2)(b). General fairness and income-replacement arguments could not displace the statutory scheme.

• Upper Tribunal (Administrative Appeals Chamber): dismissed the appeal and upheld the First-tier Tribunal’s construction of the Armed Forces and Reserve Forces Compensation Scheme Order 2011.
• First-tier Tribunal (War Pensions and Armed Forces Compensation Chamber): on 19 July 2021 dismissed the appellant’s appeal against the Secretary of State’s decisions that the guaranteed income payment began on 13 July 2019 and that the criteria for an article 59 review were not met.