SKJ v Secretary of State for Defence

Under the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011, a tribunal must first determine whether and when an injury was caused wholly or partly by service. It must identify and classify the relevant causes before deciding whether service was predominant. A finding that service was not predominant does not establish that service played no part in causing the injury: predominance requires a contribution of more than 50%. A tribunal errs materially if it reaches the predominance question without first determining whether service caused the injury.

A former Army member claimed compensation under the Armed Forces Compensation Scheme for a low back condition. The Secretary of State for Defence rejected the claim, and the First-tier Tribunal dismissed his appeal after finding that service was not the predominant cause. He appealed to the Upper Tribunal on three grounds, including that the First-tier Tribunal had considered predominance under Article 8(2) without first deciding whether service caused the injury under Article 8(1). The Upper Tribunal allowed the appeal on that ground and did not determine the other two. The central issue was whether the First-tier Tribunal had applied the complete Article 8 causation inquiry.

1. Appeal allowed. The First-tier Tribunal’s decision involved a material error of law and was set aside. The case was remitted for a fresh oral hearing before a differently constituted tribunal.

2. Article 8 requires a staged inquiry. Under the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011, the tribunal must establish that there is an injury to a member or former member, that it was caused wholly or partly by service, and that the cause occurred on or after 6 April 2005. Following the guidance in JM v Secretary of State for Defence (AFCS) [2015] UKUT 332 (AAC), it should identify potential process causes, discount causes too remote or uncertain, and classify the remaining causes as service or non-service. Only then, if service is a partial cause, does Article 8(2) require the tribunal to assess predominance. The guidance also identifies practical comparisons for that stage, including whether the injury would have occurred without the service cause and, if that does not resolve the issue, whether it would have been less than half as serious.

3. The First-tier Tribunal’s conclusion was irrational and inadequately reasoned. It found that the appellant’s service duties involved carrying extra weight and equipment, but did not determine the actual cause or causes of the injury or their timing. Nor did it explain how service could be less than predominant when its findings identified service-related duties as the only potential causes. The respondent’s submission that a finding of no predominance meant service was not a cause at all was rejected: predominant means more than 50%, so service may be a partial cause below that threshold.

4. The error was material because a properly directed tribunal might reach a different conclusion. The Upper Tribunal made no finding on entitlement. It did not consider the remaining grounds, which could be addressed at the rehearing. The First-tier Tribunal must reconsider the evidence afresh and is not bound by its previous decision. The decision was set aside and the case remitted under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007.

• Upper Tribunal (Administrative Appeals Chamber): In [2026] UKUT 253 (AAC) , allowed the appeal, set aside the First-tier Tribunal’s decision and remitted the case for a fresh hearing.
• First-tier Tribunal (War Pensions and Armed Forces Compensation Chamber): On 29 August 2024, dismissed the appeal from the Secretary of State for Defence’s decision. Tribunal case number AFCS/00315/2023; no citation is stated.