DA-B v Secretary of State for Defence

When classifying a permanent mental disorder under Table 3 of Schedule 3 to the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011, the decision-maker must determine which descriptor is most appropriate. The moderate and severe descriptors overlap and are not mutually exclusive. The assessment requires a careful analysis of all relevant evidence, including the claimant’s work capacity at the onset of the illness, the nature and level of work undertaken afterwards, the course of that capacity over time, and the ability to work regularly in less demanding employment. A finding that the claimant can work regularly in a less demanding job does not determine the issue in favour of the moderate descriptor. The tribunal must explain comparatively why one descriptor is more appropriate than the other.

The appellant challenged a First-tier Tribunal decision which maintained his award under Item 2, Level 8, of Table 3 of Schedule 3 to the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011. He argued that his permanent post-traumatic stress disorder more appropriately fell within Item 1, Level 6. The First-tier Tribunal considered his qualifications, employment and education history, together with the effect of alcohol consumption, but concluded that Item 2 was correct.

The Upper Tribunal considered whether the First-tier Tribunal had adequately applied the distinction between the Item 1 and Item 2 descriptors, including the guidance in Christopher Pearson v Secretary of State for Defence [2024] EWCA Civ 150.

1. The appeal was allowed. The First-tier Tribunal’s decision involved an error of law and was set aside under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007.
2. Under Article 15(2) and Table 3 in Schedule 3 to the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011, Item 2 concerns permanent mental disorder causing moderate functional limitation or restriction, while Item 1 concerns permanent mental disorder causing severe functional limitation or restriction. The footnotes share the requirement that the claimant cannot undertake work appropriate to their experience, qualifications and skills at the onset of the illness.
3. The distinction is not determined solely by whether the claimant can work regularly in a less demanding job. The descriptors overlap. The tribunal must assess which descriptor best describes the injury and its effects, considering all relevant evidence. Relevant considerations include the trajectory of work capacity since onset and the claimant’s ability to work regularly in less demanding employment. The tribunal must establish the baseline work appropriate to the claimant’s experience, qualifications and skills at onset and compare it with the nature and level of work subsequently undertaken.
4. The First-tier Tribunal did not adequately explain why Item 2, rather than Item 1, was the more appropriate descriptor. Its narrative account did not make clear whether the appellant’s work history showed consistent work at a less demanding level or a progression through less and less demanding jobs. It also made no sufficiently clear finding establishing the necessary baseline.
5. The Upper Tribunal did not determine the appropriate award on the facts. The appeal was remitted to an entirely differently constituted First-tier Tribunal for an oral hearing and fresh determination in accordance with the law stated in the decision. The possible relationship between Article 12(1)(b) and Article 15(1) and Table 3 was left for the new tribunal, as the issue had not been fully argued.

• Upper Tribunal (Administrative Appeals Chamber): The First-tier Tribunal decision dated 19 January 2024 was set aside for error of law. The appeal was remitted to an entirely differently constituted First-tier Tribunal for an oral hearing and fresh decision.
• First-tier Tribunal (War Pensions and Armed Forces Compensation Chamber): By decision dated 19 January 2024 in case AFCS/00539/2023, the appellant’s award remained at Item 2, Level 8.