The Secretary of State for Defence v CJP

For an injury to be compensable under the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011, “service” means service as a member of the armed forces or reserve forces. A person who has been discharged cannot establish that a later injury was caused by service merely because detention occurs at a military establishment, under military discipline, or pursuant to obligations arising from that detention. The court must distinguish the factual setting or opportunity for an injury from its legally relevant cause. A causal chain beginning with earlier service does not overcome the statutory requirement that the relevant service be service as a member of the forces.

The respondent served in the Royal Air Force until his discharge on 29 May 2020. He was later sentenced by court martial and detained at the Military Corrective Training Centre as a civilian subject to service discipline. In November 2020 he injured his hand while moving furniture under instruction.

The Secretary of State rejected his claim under Article 8 of the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011. The First-tier Tribunal held that the injury was caused by service, relying on the causal chain from the respondent’s former service to his detention and the task causing the injury. The issue on appeal was whether that conclusion involved an error of law.

1. Appeal allowed. The First-tier Tribunal’s decision contained an error of law. It was set aside and the decision was remade: the respondent’s left-hand injury was not caused by service.
2. Article 2 of the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011 defines “service” as service as a member of the forces. Article 8 permits compensation for an injury caused by service, but does not remove that statutory requirement. The respondent had ceased to be a member of the forces more than five months before the injury.
3. The fact that he was detained at a military establishment, wore uniform, followed orders and was subject to disciplinary rules did not make him a member of the forces or place him in service. Under section 370(1) of the Armed Forces Act 2006, a civilian subject to service discipline is expressly a person who is not subject to service law.
4. The First-tier Tribunal wrongly treated the respondent’s earlier service, his offence, his sentence and his detention as an unbroken chain of service causes. Earlier service provided the setting for the offence and later detention, but did not cause them. The immediate task was required because the respondent was serving a sentence as a civilian subject to service discipline, not because of a condition or obligation of service.
5. The four-stage causation approach identified in JM v Secretary of State for Defence (AFCS) remained relevant, but it did not support the First-tier Tribunal’s conclusion. The authorities distinguish a legally relevant cause from a mere setting or opportunity. The facts were undisputed, so remittal was unnecessary.

• Upper Tribunal (Administrative Appeals Chamber): allowed the Secretary of State’s appeal against the First-tier Tribunal decision dated 13 March 2024, set that decision aside and remade it.
• First-tier Tribunal (War Pensions and Armed Forces Compensation Chamber): held that the respondent’s hand injury was caused by service and allowed his appeal.