BT v Secretary of State for Defence

Entitlement under article 9(1)(c) of the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011 requires satisfaction of four cumulative conditions, including the conditions in article 9(5). A no-fault compensation scheme asks whether service caused the worsening, not whether the service provider acted improperly or breached a duty. In mental-health cases, evidence that work or service events were perceived as stressful may constitute prima facie evidence of causation. A tribunal must assess that evidence and explain its conclusions. Acts and omissions occurring in the course of service may potentially be service causes. An appellate tribunal must set aside a decision containing material errors of law, including perverse findings or inadequate reasons.

The appellant, a former Army sergeant, appealed against the First-tier Tribunal’s dismissal of his claim under article 9(1)(c) of the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011. He alleged that service had worsened a mental injury initially arising from his daughter’s suicide, including through his return journey, transfers between roles, welfare arrangements and the refusal of a requested posting.

The First-tier Tribunal upheld the Secretary of State’s refusal of compensation. Permission to appeal was granted on grounds concerning perversity, causation, the treatment of medical evidence and inadequate reasons. The central issues were whether the Tribunal had applied the correct statutory conditions and whether its findings that service had not caused or predominantly caused worsening were legally sustainable.

1. Appeal allowed. The First-tier Tribunal’s decision involved material 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. For an article 9(1)(c) claim, four conditions had to be addressed: an injury arising during service but not caused by service; downgrading within five years of sustaining the injury with continuous downgrading until service ended; worsening as the predominant cause of downgrading; and service as the predominant cause of worsening. Article 9(5) was an essential condition and should have structured the Tribunal’s analysis.
3. The First-tier Tribunal’s conclusion that there was no medical evidence supporting the appellant’s case was perverse. The report of Dr Odysseos linked the appellant’s mental-health deterioration to his perceptions of work and service-related events. The Tribunal had to consider that evidence and explain why it did or did not establish causation.
4. The AFCS was a no-fault scheme. The absence of objectively wrongful conduct or breach of duty did not prevent an event from being a service cause. In mental-health cases, perception and experience of stressful work events could themselves be causally relevant.
5. The Tribunal misdirected itself concerning the journey home from the United States by using fault-based reasoning. The analysis should have begun with article 11, but should not have ended there. It also had to decide on the facts whether the journey was service. The transfer to the intelligence role was plainly a service matter, and the Tribunal’s reliance on its supposed objective attractiveness was irrelevant to whether it caused worsening. The refusal of a requested role transfer also required reasons; an omission in the course of service was not automatically outside the scope of service.
6. On remission, the fresh tribunal had to assess the original injury, the relevant downgrading, whether the worsening caused the downgrading, and whether service was the predominant cause of that worsening.

• Upper Tribunal (Administrative Appeals Chamber): appeal allowed. The First-tier Tribunal decision dated 7 July 2024 was set aside under section 12 of the Tribunals, Courts and Enforcement Act 2007. The case was remitted to a fresh tribunal.
• First-tier Tribunal (War Pensions and Armed Forces Compensation Chamber): appeal dismissed and the Secretary of State’s refusal of compensation upheld.