MJU v Secretary of State for Defence

For an injury to be “caused by service” under the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011, the tribunal must assess causation in a nuanced way. It is insufficient to ask only whether the immediate cause resulted from an enforceable order. The tribunal must make adequate findings about the relevant service circumstances and then assess whether the claimant’s conduct or consent was caused by service. The scheme is no-fault. Fault, breach of duty and ordinary fortitude are not prerequisites to causation, and a thin-skull exclusion does not apply. A tribunal must engage with material evidence before concluding that there is no evidence of a causal link. Adequate reasons must explain why substantial evidence has been rejected.

The appellant, who remained serving in the RAF, claimed compensation for myofascial or atypical facial pain under the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011. He argued that the pain was caused partly by dental treatment which he had been ordered to undergo and partly by work-related stress.

The First-tier Tribunal upheld the Secretary of State’s refusal of compensation. It found that the dental treatment was not caused by service and that there was no evidence that the relevant stress was service-related. The appellant appealed on the grounds of inadequate reasons and perversity.

1. Appeal allowed. The First-tier Tribunal’s decision involved errors of law. It was set aside under section 12(2)(a), (b)(i) and (3) of the Tribunals, Courts and Enforcement Act 2007, and the case was remitted to a fresh tribunal.
2. A tribunal’s reasons must address the substantial points in issue and enable the parties and an appellate tribunal to understand why the decision was reached. The First-tier Tribunal gave no adequate reason for rejecting the appellant’s clear and consistent evidence that he had been ordered to undergo the dental treatment. The absence of documentary evidence did not justify rejection where there was no reason to expect such a record.
3. Consent to treatment does not establish that the treatment was not caused by service. Nor does the fact that an order would not have been enforced determine the issue. The tribunal had to make careful findings about the interaction between the appellant and his officer and then apply the guidance in JM v Secretary of State for Defence (AFCS) [2015] UKUT 332 (AAC) concerning whether the appellant’s consent, in the circumstances, was caused by service.
4. The First-tier Tribunal’s conclusion that there was no evidence linking stress to work was perverse. The medical records contained ample evidence requiring consideration. It remained open to the tribunal, after addressing that evidence and giving adequate reasons, to find that the causal link was not established.
5. The scheme is no-fault. The absence of improper conduct or breach of duty does not prevent an injury caused by workplace stress from being caused by service. A claimant’s particular susceptibility to stress does not necessarily break the causal link. The remitted tribunal had to apply the relevant “thin skull” guidance and, if service caused some of the injury, determine whether service was the predominant cause.

• Upper Tribunal (Administrative Appeals Chamber): allowed the appeal, set aside the First-tier Tribunal’s decision and remitted the case for reconsideration by a fresh tribunal.
• First-tier Tribunal (War Pensions and Armed Forces Compensation Chamber): on 13 March 2024 upheld the Secretary of State’s decision that the appellant was not entitled to compensation.