SM v Secretary of State for Defence (AFCS): [2017] UKUT 286 (AAC); [2018] AACR 4
Upper Tribunal Administrative Appeals Chamber decision by Judge Rowland on 10 July 2017.
Read the full decision in .
Judicial Summary
Reported as [2018] AACR 4
Armed Forces Compensation Scheme – claimant slipped on icy steps to building where he worked – whether injury due to travel – whether injury due to slipping, tripping or falling while participating in pursuance of a service obligation in an activity in a hazardous environment – whether injury caused by service
The claimant was a colonel who worked in the HQ building of the Army Air Corps which was located inside a secure compound within an Army base. He fell while ascending steps up to the HQ building, because of a loose step combined with icy conditions and was injured. His claim under the Armed Forces and Reserve Forces (Compensation Scheme) 2011 was rejected by the Secretary of State on the ground that the claimed injury was not caused by service for the purposes of article 8 of the Scheme as climbing the steps was an activity everyone was required to do. The Secretary of State also argued that article 11(3), which provides an exclusion under the Scheme for those claims where injury is caused by slipping, tripping or falling, applied and that the claimant was not assisted by article 11(4)(a) or (b), because walking is not a hazardous activity and the HQ building was not a hazardous environment. Before the First-tier Tribunal the Secretary of State’s representative also argued that the claim should be excluded under article 11(1) as the claimant was travelling. The First-tier Tribunal rejected the claimant’s appeal finding that the cause of the injury was the icy loose steps and there was nothing service related about the icy weather conditions; it did not find it necessary to consider article 11. The claimant appealed to the Upper Tribunal where the Secretary of State accepted that the First-tier Tribunal had erred in law but submitted that the Upper Tribunal was the wrong forum for making findings of fact on whether an injury was caused by service or whether an environment was hazardous for the purposes of the Scheme.
Held, allowing the appeal, that: 1. the Upper Tribunal had a broad discretion either to remit the case to the First-tier Tribunal or to re-make the decision itself. All the necessary facts relating to the accident suffered by the claimant had been found, the circumstances were not peculiar to service so as to require the expertise of the First-tier Tribunal and the Upper Tribunal’s functions include giving guidance to promote consistency in decision-making and so a final decision would be given in this case (paragraphs 11 to 13);
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as was common ground, the First-tier Tribunal had erred in law in holding that, because the immediate causes of the fall were the weather and the loose step, the fall could not be categorised as a service cause of the claimant’s injury (paragraphs 14 to 16);
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once the claimant had entered the secure compound and was going up the entrance steps he was no longer travelling to work but had arrived and so payment of benefit was not excluded by article 11(1) (paragraph 20);
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when he fell while climbing the icy and uneven steps the claimant was participating, in pursuance of a service obligation, in an activity in a hazardous environment for the purposes of article 11(4)(b) and so payment of benefit was not to be excluded by article 11(3): Secretary of State for Defence v PA [2016] UKUT 500 (AAC); [2017] AACR 18 considered (paragraphs 21 to 28);
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the claimant’s injury was caused by the hazardous environment to which a service obligation exposed him and so, subject to the question of whether there was another cause for the injury (which was for the Secretary of State), it was caused wholly by service for the purposes of article 8 (paragraphs 46 to 52).
Last updated 4 October 2018 + show all updates
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Reported as [2018] AACR 4
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First published.