EP v Secretary of State for Defence (AFCS): [2017] UKUT 129 (AAC): [2017] AACR 33

Upper Tribunal Administrative Appeals Chamber decision by Judge Knowles on 17 March 2017.

Read the full decision in [2017] AACR 33ws.

Armed Forces Compensation Scheme – correct approach to definition of “downgraded” in article 2(1) of the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011

Tribunal procedure and practice – evidence – need to consider everything

Following her enlistment in the Army in 2004 the appellant was found to have bilateral pes cavus in both feet and dysplasia in her right hip. In 2008 she claimed compensation under the Armed Forces Compensation Scheme (AFCS) which was rejected on the basis that both conditions were due to developmental abnormalities not service. The appellant was found to be fit only for limited duties on a number of occasions and in September 2009 a Medical Board examined the appellant and graded her P3 on a PULHHEEMS assessment by reason of bilateral foot pain and right hip impingement and her Medical Employment Standard (MES) was downgraded to L3, which meant that she was fit for limited duties but retained rank and pay. (PULHHEEMS is a functional assessment to determine an individual’s fitness for service within the Army and their subsequent grading for duty.) The appellant’s downgrading continued for the reminder of her service, except for a period in 2010 of less than two months when she was temporally upgraded. In 2010 the appellant’s claim for compensation for the pain in her feet was rejected by a First tier Tribunal (F-tT), holding that her first claim concerned the same matter and any appeal was out of time. In 2013 the appellant left the service and in April 2014 she claimed compensation a third time for the pain in her hip. That claim was rejected by the Secretary of State who concluded that the appellant did not qualify for compensation under article 9 of the AFCS. The F-tT upheld that decision, holding that the worsening of the hip injury in 2012 had not been the cause of the downgrading as required under article 9(3)(d) and had not been the cause of being downgraded on all occasions. The appellant applied for permission to appeal on the grounds that she had a permanent P3 PULHHEEMS grading from 8 September 2009 until her service ended on 17 December 2013.

Held, allowing the appeal, that:

  1. the definition of “downgraded” focuses not simply on whether a person has been downgraded but more specifically on the result of the downgrading, namely whether a person did, as a matter of fact, undertake a reduced range of duties. Additionally downgrading could not be determined by reference to the duties which a person might be called upon to undertake but which are not part of the ordinary duties of their role (paragraphs 43, and 48 to 49);

  2. the F-tT’s approach was in error of law because it failed to consider the medical evidence in detail, specifically (a) the restrictions on the appellant’s duties put in place following a PULHHEEMS assessment and (b) the restrictions set out in her MES. The tribunal determining the appeal had none of the detailed records about the various Medical Boards which considered the appellant’s fitness available to it and erred by failing to adjourn to obtain them, as all of this material should have been scrutinised alongside the appellant’s own evidence about what she thought her duties were (paragraphs 50 to 54);

  3. the UT provided guidance as to how a tribunal should approach the question of whether the appellant was continually downgraded within article 9(3)(c): JN v Secretary of State for Defence (AFCS) [2012] UKUT 479 (AAC) followed (paragraphs 58 to 59). The judge set aside the decision of the F-tT and remitted the appeal to a differently constituted tribunal to be re-decided in accordance with her directions.

Published 5 April 2017
Last updated 18 December 2017 + show all updates
  1. Decision selected for reporting as [2017] AACR 33
  2. First published.