MW v Secretary of State for Defence (AFCS)

A mental disorder is not automatically “permanent” merely because it has lasted for a lengthy period. For the higher descriptors in Table 3 of Schedule 3 to the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011, permanence is a gateway issue. Although article 5(7)(a) does not directly define a permanent mental disorder, its requirements provide a useful guide. Appropriate clinical management, the availability and completion of treatment, and the prospect of further improvement are relevant factors.

The decision-maker may approach the Item 2/Item 3 boundary in either order. It must, however, address the relevant questions and select the descriptor which best describes the injury and its effects. A factual and evaluative conclusion on permanence will not disclose an error of law merely because another tribunal might have reached a different conclusion.

The appellant, a former Royal Air Force officer, received an Armed Forces Compensation Scheme award for post-traumatic stress disorder at Table 3, Item 3, Level 10 of Schedule 3 to the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011.

The Pensions Appeal Tribunal for Scotland dismissed his appeal. It found that his condition caused functional limitation and had continued for more than five years, but that it was not a permanent mental disorder. It relied on incomplete and available treatment, including a proposed further course of trauma-focused treatment and a pending psychiatric assessment.

On further appeal, the appellant contended that the tribunal had misapplied the statutory test of permanence and the Table 3 descriptors, failed properly to assess his psychological, social and occupational function, and given inadequate reasons. The central issue was whether the tribunal had erred in law in finding that the mental disorder was not permanent.

1. Appeal dismissed. The Pensions Appeal Tribunal for Scotland made no material error of law in retaining the award at Table 3, Item 3, Level 10.

2. Under Table 3 of Schedule 3 to the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011, a permanent mental disorder is the gateway to Item 2 and the higher descriptors. If permanence is not established, the award must be at Item 3 or below, subject to the remaining descriptor criteria.

3. Article 5(7)(a) did not directly define permanence of the mental disorder itself, because it defines when functional limitation or restriction is permanent. However, consistently with JH v Secretary of State for Defence (AFCS) [2024] UKUT 191 (AAC), it was a useful guide. Whether appropriate clinical management of adequate duration had occurred, whether treatment remained available or incomplete, and whether further improvement was expected were relevant to the assessment of permanence.

4. The tribunal had applied that approach. It considered the appellant’s prior treatment, the reported benefit from it, the uncompleted trauma-focused treatment, the outstanding psychiatric assessment, and the possibility of further treatment. Its conclusion that permanence was not established was reasonably open to it on the evidence.

5. The order in which a decision-maker considers Item 2 and Item 3 is not determinative. It may begin with functional limitation and then assess permanence, or first decide whether the disorder is permanent. The essential requirement, under article 16(1), is that it addresses the relevant questions and selects the descriptor which best describes the injury and its effects.

6. Applying Moyna v Secretary of State for Work and Pensions [2003] UKHL 44, a different possible evaluative conclusion did not establish an error of law. The appellant had not shown that no reasonable tribunal, properly directed, could have reached this conclusion. The remaining grounds were consequently immaterial. The tribunal’s reasons were also adequate: they left no real and substantial doubt about its reasons or material considerations.

• Upper Tribunal (Administrative Appeals Chamber): dismissed the appellant’s further appeal, holding that the Pensions Appeal Tribunal had made no error of law: [2025] UKUT 37 (AAC).
• Pensions Appeal Tribunal for Scotland: dismissed the appeal against the Secretary of State’s award at Table 3, Item 3, Level 10. The decision was dated 8 August 2023.