CRP v Secretary of State for Defence

When interpreting a tariff descriptor, the court must identify the legislator’s intention from the statutory language, context and scheme. A general appeal to fairness cannot expand wording beyond its reasonable interpretations. Nor does a harsh or unequal result necessarily constitute absurdity.

The phrase “septic arthritis or other pathology” in item 2 of Table 9 to Schedule 3 of the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011 is limited to pathology similar or related to septic arthritis. A tribunal must give adequate reasons when deciding that a condition does not fall within that description, particularly where the medical similarity is central to the outcome.

CRP appealed against a decision of the First-tier Tribunal (War Pensions and Armed Forces Compensation Chamber) dated 31 January 2023. The First-tier Tribunal rejected reliance on item 2 of Table 9 in Schedule 3 to the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011, applying the interpretation in MD v Secretary of State for Defence (AFCS) [2015] UKUT 0298 (AAC). It concluded that osteoarthritis was not an infection or disease akin to septic arthritis, but awarded under item 16D.

On appeal, the Secretary of State accepted that CRP should receive a level 9 award but argued that item 2 should be interpreted broadly, or that the approach in MD should not be followed. The central issues were the proper construction of item 2, whether MD produced unfair or absurd results, and whether the First-tier Tribunal had given adequate reasons.

1. Appeal allowed. The First-tier Tribunal’s decision involved an error of law because its reasons did not adequately explain why osteoarthritis was not a pathology similar or related to septic arthritis under item 2 of Table 9.

2. The ratio of MD v Secretary of State for Defence (AFCS) [2015] UKUT 0298 (AAC) was that item 2 must be read as referring to septic arthritis or any similar or related pathology requiring arthrodesis, osteotomy or partial or total joint replacement. The shorter formulation in MD’s introductory paragraph was only a summary and could not displace the reasoning supporting the ratio.

3. Item 2 describes both a specified injury and its specified effects. The reference to “other pathology” is restricted by the characteristics of septic arthritis. The wording reflects a legislative choice which cannot be disregarded because another interpretation might appear fairer. If the scheme is considered unfair when properly construed, amendment rather than judicial re-writing is the appropriate response.

4. The interpretation in MD did not produce absurd consequences. A decision to limit entitlement by reference to a relatively rare condition may be harsh or anomalous, but it is not thereby absurd. The presumption against absurdity does not authorise the court to substitute a different policy choice.

5. The Upper Tribunal could not decide, on the evidence available, whether osteoarthritis was medically similar or related to septic arthritis. That question would require appropriate expert medical evidence. It was unnecessary to determine it because CRP could qualify under item 2B.

6. Item 2B covered post-traumatic arthritis requiring total joint replacement. On the medical evidence, and on the Secretary of State’s acceptance that CRP’s osteoarthritis was service-related, CRP satisfied item 2B and was entitled to a level 9 tariff award. The First-tier Tribunal’s decision was set aside and re-made accordingly, subject to the Secretary of State’s opportunity to object in writing within one month.

• Upper Tribunal (Administrative Appeals Chamber): Appeal allowed. The First-tier Tribunal’s decision of 31 January 2023 was set aside for error of law and replaced, subject to written objection, by a decision awarding CRP a level 9 tariff award under item 2B.
• First-tier Tribunal (War Pensions and Armed Forces Compensation Chamber): CRP’s appeal was allowed in part under item 16D, level 12, but item 2 was rejected.