J.K. v Secretary of State for Defence

Under the Armed Forces Compensation Scheme, a Guaranteed Income Payment cannot become payable before the member’s service ends. That general rule applies even where entitlement arises from an exceptional review under article 59 and article 64(6) provides for six-year backdating. Article 64(6) qualifies the date specified by article 64(5)(d), but article 64(5) as a whole remains subject to article 16(10). The provisions must be read harmoniously as part of the statutory scheme. General considerations of fairness cannot displace the clear statutory wording.

The appellant served in the Royal Navy and Royal Naval Reserve. His injuries were initially assessed at level 13, giving no entitlement to a Guaranteed Income Payment. Following an exceptional review under article 59 of the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011, his conditions were reassessed at level 11 and a GIP became payable.

Veterans UK decided that payment could begin only after the appellant’s service ended. The First-tier Tribunal dismissed his appeal, relying on GE v Secretary of State for Defence [2024] UKUT 92 (AAC). The appellant argued that GE concerned article 64(2)(b), whereas his case concerned article 64(6), and that the specific six-year backdating provision prevailed over article 16(10). The central issue was the correct commencement date for the GIP.

The appeal was dismissed. The First-tier Tribunal had made no error of law.

1. Effect of GE. The decision in GE v Secretary of State for Defence [2024] UKUT 92 (AAC) was not confined to cases under article 64(2)(b) or to the particular review provisions considered there. Its reasoning was expressed generally: article 16(10) plainly provides that a GIP is payable only once service in the armed forces ends. That principle applied with equal force to an award resulting from an article 59 review.

2. Interaction between articles 16(10) and 64(6). Article 64(2)(b) establishes the ordinary commencement rule, subject to paragraphs (5) and (6). Article 64(5)(d) provides for awards revised under article 59, subject to paragraph (6), and article 64(6) supplies the six-year backdating mechanism. However, the opening words of article 64(5) make each of the review scenarios in sub-paragraphs (a) to (d), including article 64(5)(d), subject to article 16(10). Article 64(6) therefore cannot be read in isolation. It permits backdating only so far as the resulting payment does not pre-date the end of service.

3. The provisions of the Order must be interpreted harmoniously. The GIP calculation under article 24 is based on the member’s relevant salary at the end of service. That supports the conclusion that the scheme contains no statutory basis for paying a GIP for a period before service ends.

4. Arguments based on fairness, the claimant’s lack of informed choice, or the financial consequences of delayed payment could not overcome the clear statutory language.

The Upper Tribunal accordingly dismissed the appeal.

• Upper Tribunal (Administrative Appeals Chamber): appeal dismissed; the First-tier Tribunal decision involved no error of law.
• First-tier Tribunal (War Pensions and Armed Forces Compensation Chamber): appeal dismissed on 26 November 2024. The Tribunal held that the GIP could not be paid before the appellant’s service ended.