CS v Secretary of State for Defence

In assessing disablement under Article 42 of the Service Pensions Order, the tribunal must assess disablement by comparing the claimant’s condition with that of a normal healthy person of the same age and sex. Where several injuries contribute to disablement, the assessment is composite. Separate assessments are not an invariable prerequisite: they are required only where useful or necessary to explain the overall assessment, depending on the facts. Appellate intervention is limited. A specialist tribunal’s factual and evaluative conclusions should be respected unless affected by an identifiable error of law, irrationality, or inadequate reasons. Reasons must enable the parties and an appellate tribunal to understand the decision, but need not be optimal. A structured reality check against prescribed disablements may independently support the overall assessment.

The appellant, a former RAF serviceman, appealed against the First-tier Tribunal’s refusal of his challenge to an interim 80% war pension assessment. The accepted disablements included prolapsed intervertebral disc disease at C5/C6, cervical myelopathy, lumbar disc disease, anxiety with features of depression and bilateral varicose veins.

The First-tier Tribunal treated the two cervical conditions together, finding that they overlapped and that the existing 50% assessment remained appropriate. It also treated lower urinary tract symptoms as part of the accepted disablements and used the prescribed disablements in Part V of Schedule 1 as a reality check. The central issue was whether the tribunal had erred in law by failing to assess the cervical conditions separately and by inadequately explaining the composite assessment.

1. Appeal dismissed. The First-tier Tribunal’s decision did not involve a material error of law.
2. Article 42(2)(a) of the Service Pensions Order requires comparison between the claimant’s condition as disabled and that of a normal healthy person of the same age and sex. Article 42(2)(c) requires a composite assessment where disablement is due to more than one injury. The tribunal assesses disablement, rather than diagnoses or injuries.
3. The authorities do not impose a hard and fast requirement for prior apportionment between conditions. Separate assessments may be useful or necessary to explain the composite assessment, but whether they are required is fact- and context-specific. The First-tier Tribunal was entitled to consider the two cervical conditions together because they affected the same bodily area and both caused neck pain or stiffness.
4. The First-tier Tribunal had identified the medical conditions, considered their functional effects and explained why they were assessed together. The appellant’s disagreement with that evaluation was a challenge to fact-finding and the weight of evidence, not an error of law.
5. Appellate review in this specialist jurisdiction requires restraint. The specialist tribunal is the primary fact-finder and its reasons need be adequate, rather than optimal. Intervention is justified only for an identifiable legal error, fundamental misunderstanding, failure to consider material evidence, a conclusion unsupported by the evidence, or a conclusion outside the range of reasonable disagreement.
6. The First-tier Tribunal had adequately explained why the cervical assessment remained at 50%, despite reduced mobility. It had recognised the appellant’s deterioration, reflected it in the increased overall assessment from 70% to 80%, and attributed the additional disablement to the newly accepted lumbar condition. Its separate benchmarking against Part V of Schedule 1 provided an independent evaluative reality check. Any alleged error in the earlier assessment process was therefore immaterial.
7. The challenges concerning participation, mental health and nocturia disclosed no error of law. The First-tier Tribunal had considered those matters, and the remaining complaints concerned factual evaluation. The interim nature of the award was not challenged successfully.

• Upper Tribunal (Administrative Appeals Chamber): appeal against the First-tier Tribunal decision dismissed; no material error of law was found.
• First-tier Tribunal (War Pensions and Armed Forces Compensation Chamber): appeal against the Secretary of State’s interim 80% assessment refused on 4 April 2024; full reasons issued subsequently.