DECISION OF THE UPPER TRIBUNAL
	ADMINISTRATIVE APPEALS CHAMBER

The claimant’s appeal to the Upper Tribunal is allowed. The decision of the Liskeard First-tier Tribunal sitting on 15 June 2012 involved errors on points of law, for the reasons given below, and is set aside. The case is remitted to a tribunal within the War Pensions and Armed Forces Compensation Chamber of the First-tier Tribunal for reconsideration in accordance with the directions given in paragraph 41 below and further procedural directions to be given by a First-tier Tribunal judge (Tribunals, Courts and Enforcement Act 2007, section 12(2)(b)(i)).

	REASONS

1.	There was an oral hearing of this appeal on 24 October 2013. The claimant attended, accompanied by, among others, Keith Meakin of the British Limbless Ex-Servicemen’s Association. He was represented by Michael Rawlinson QC and Charlotte Law of counsel, instructed by Irwin Mitchell LLP solicitors. The Secretary of State for Defence was represented by Galina Ward of counsel, instructed by the Appeals Team of the Service Personnel & Veterans Agency. I am grateful to all present for their constructive assistance.

2.	This case raises some difficult issues on the construction of the Armed Forces and Reserve Forces (Compensation Scheme) Order 2005 (the AFCS Order 2005), as amended. The issues as to when injury is caused wholly or partly by service and, in particular, the effect of article 7(2) in providing that “where injury is not wholly caused by service, benefit is only payable if service is the predominant cause of the injury” also arise under the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011 (the AFCS Order 2011). The issues as to the meaning of article 10(1) and (3) on adventurous training courses or expeditions will not arise in the same form under article 11 of the AFCS Order 2011, but are nonetheless important in relation to claims falling under the 2005 scheme. This decision gives more hard-edged guidance on the second group of issues than the first, where much has to be decided case by case according to the individual circumstances. There was a substantial level of agreement about the statutory framework within which decisions have to be made and that the tribunal of 15 June 2012 had gone wrong in law in ignoring that framework, but not about the outcome of this appeal.

The relevant legislation
3.	In relation to article 7(2) of the AFCS Order 2005, set out in substance above, it should be noted that in article 2 “predominant” is defined as “more than 50 per cent”. The relevant parts of article 10, as in force at the date of claim and of decision, are as follows:

	“Injury and death – inclusions
10.—(1) Benefit is payable in accordance with this Order to or in respect of a person by reason of an injury sustained or worsened or death occurring, while participating in—
 (a)	sporting activities as a player, a referee, an organiser or a representative of a particular sport or sporting organisation where—
(i)	the Secretary of State has approved the sport as being a sport which enhances the fitness, initiative and endurance of members of the forces, and
(ii)	the relevant Service has recognised the particular event and the 			organisation and training for it;
(b)	activities approved by the relevant Service which are undertaken for the purpose of meeting and maintaining the physical standards required of members of the forces; or
(c)	adventurous training courses or adventurous expeditions approved by the relevant Service;
in each case where service is the predominant cause of the injury, or the worsening of the injury, or of death.
 (2) [approval of sporting activities].
 (3) The activities referred to in paragraph (1) do not include social events or free time associated with those activities.
 	 (4) and (5) [travelling]
 	 (6) [terrorism, warlike activities and emergencies].
 (7) This article does not apply unless the cause of the injury, the worsening of the injury, or the cause of the death, occurred on or after 6th April 2005.”

The factual background
4.	The claimant was born on 18 September 1987. He entered service with the Royal Marines on 10 November 2008 and is still in service. The incident giving rise to the AFCS claim occurred on 23 January 2010, when the claimant was swimming off a beach in Gran Canaria. After wading into the water, he did a shallow dive and made a direct impact with a sandbank just below the surface of which he had been unaware. He suffered very serious life-changing injuries. As claimed they were fracture of C4 and C5, prolapsed discs C5 and C6 and incomplete tetraplegia. The tribunal in its decision noted those introductory circumstances and made these more detailed findings:

“8. We heard oral evidence from the [claimant]. We had the benefit of seeing and listening to him carefully. We have no doubt that he gave a truthful account of his circumstances. We also listened carefully to his representative’s [Mr Meakin’s] submissions. [The claimant] told us that:
 (a) He was ordered to participate in adventure training in Gran Canaria in January 2010. He told us that he had said he did not want to go and that there were two other ‘lads’ who were prepared to go in his place.
 (b) He told us that he received no briefings or instructions prior to attending the adventure training activity and received no joining instructions. He told us that he had to ask a colleague at to what kit to take.
 (c) He told us that he received no documentation or other instructions with advice to take out personal insurance and that he had never heard of any of ‘his mates’ refer to this either.
 (d) He told us that the lack of facilities on board ship meant that ablutions were generally done in the sea. Further that exercise, e.g. swimming, was in order to maintain high levels of physical fitness as required by the service.

9. In addition to the oral evidence, we have considered all of the documentation before us and all submissions made by both representatives.

10. There is no dispute between the parties as to how the accident occurred. Both parties agree that the accident happened whilst [the claimant] was with RM 45 Commando in Gran Canaria prior to leaving for Puerto Rico. The Training Craft “Sarie Marais of Plymouth” had pulled alongside in Porto Morgan on 22nd January 2010 and was due to leave Gran Canaria at approximately 1 p.m. on 23rd January 2010 taking a planned transit to Puerto Rico.

11. On the day of the accident [the claimant] told us that at approximately 10 a.m., whilst the skipper of the boat was attending local shops to but victuals, he and two colleagues had taken the opportunity to go swimming. He told us that prior to the skipper’s departure to the shops he could not recall whether the skipper had issued any instructions or orders. He told us that he and his colleagues took the opportunity to go for a swim to aid both personal cleanliness and also to maintain some physical fitness.”

It is evident that, although the tribunal framed most of those findings in terms of recording the claimant’s oral evidence, all of that evidence was accepted and found as fact. I shall come back later to some of the other evidence before the tribunal.

The decisions on the AFCS claim
5.	The AFCS claim was received on 16 September 2010. The letter notifying the claimant of the decision that he was not entitled was dated 22 February 2011. The attached reasons for decision were brief. After stating that the available evidence confirmed that the injury claimed was not due to service, they continued (not very grammatically):

“The Secretary of State confirms that on the balance of probabilities the incident was not caused by service as the Learning Account confirms that you took an opportunity to go the beach and local shops prior to leaving for Puerto Rico to purchase victuals for the passage. The incident claimed is shown to be an activity for private enterprise which is not covered under the JSP 765 as such falls for rejection under AFCS for which no benefit is payable under the Scheme.”

6.	The “Learning Account”, which I think was not seen by the claimant until its inclusion in the Statement of Case for the First-tier Tribunal, was a brief record dated 10 February 2010 by a Royal Marines officer of the events of 23 January 2010, the action taken by the claimant’s unit and what immediate lessons had been learnt and action taken to prevent a recurrence. The Learning Account did not in fact say that the claimant had taken an opportunity to go to local shops to purchase victuals. It was clear that that task was carried out by the skipper of the yacht. It merely recorded that the six marines comprising the crew had left the yacht at about 1000 to take the opportunity to go to the beach and local shops. Since it recorded the incident as happening at about 1015 the Learning Account was only consistent with the claimant having gone straight to the beach with at least some of the others, as found by the tribunal. The references to going to shops have been the source of some worry, but I do not consider that any earlier confusion had any influence on the decision of the tribunal of 15 June 2012. “JSP 765” is a Ministry of Defence guide to the AFCS, apparently in the public domain because a copy of the original April 2005 version was included by the claimant’s representatives in their hearing bundle for 24 October 2013.

7.	By a letter dated 10 March 2011 the claimant expressed the wish to appeal against the decision notified on 22 February 2011. The appeal form was received on 13 May 2011. A reconsideration was carried out as required by article 53(5) of the AFCS Order 2011, which came into force on 9 May 2011. Whether the notice of appeal is regarded as having been given on receipt of the letter of 10 March 2011 or on receipt of the appeal form (with reasons for appeal) on 13 May 2011, either article 85(2)(b) or article 86(2) of the AFCS Order 2011 required the reconsideration to be carried out under that Order. However, article 88(3) gave the Secretary of State power, where it was just and equitable in the circumstances of the case, to continue to apply article 10 of the AFCS Order 2005. Here it was plainly right to do so, as article 11 of the AFCS Order 2011 is cast in the form of positive exclusions from entitlement for any injury caused by activities within its scope (including injuries caused by free time associated with approved adventurous expeditions).

8.	A letter dated 13 December 2011 notified the confirmation of the initial decision. Since it was in many ways the source of the mistaken approach taken by the tribunal, I set out the extended reasons given in that letter:

“We have carefully considered the circumstances of the incident and acknowledge the very serious nature of the injuries you received. However, on the balance of probabilities, we must conclude that at the time the injuries occurred you were engaged in activity for personal enterprise of the type that is not covered by JSP 765 governing Adventure Training (AT). The Learning Account raised following your accident confirms that at the time of the injury you had left ‘Sarie Marie of Plymouth (SMOP)’, the training vessel to ‘take an opportunity to go to the beach and the local shops prior to leaving for Puerto Rico later that day’.

In making this decision we are informed by JSP 419, in line with which all AT must be authorised; JSP 765 and 2009DIN01-050. JSP 765 specifies what constitutes on or off duty for the purpose of AT. At the time of your injury, the evidence shows that you were engaged in recreational swimming during a break in the authorised AT activities. JSP 765 describes this type of activity as ‘not required to meet the aims of the expedition’.

2009DIN01-050 also discusses duty status whilst on AT and strongly advises all personnel taking part in AT to purchase additional insurance to cover eventualities for which MoD would not legally be liable, such as ‘activities outside the scope of an expedition remit and pure accident’. The document specifically dictates that personnel will be classed as on duty whenever they are participating in an activity explicitly recognised under AT Schemes. Other activities that do not form part of the Scheme such as social events, rest/recuperation or leave will be classed as off duty.

We have noted your comments that you were ordered to participate in Adventure Training. We accept that you were authorised to be on Adventure Training. However, it is evident from both the JSPs and 2009DIN01-050 that the MoD anticipates that there will be off duty times within overseas expeditions (including AT) and that not everything that happens to a person on that expedition will automatically be the responsibility of the MoD or accepted as caused by service.”

9.	JSP 419 is a Ministry of Defence document on the Joint Service Adventurous Training Scheme. A full copy of the 31 October 2011 version was included by the claimant’s representatives in their hearing bundle for 24 October 2013. A page including paragraph 39 had been included in the Statement of Case:

“39. Duty Status.  All authorised individuals taking part in any Type of JSAT activity are designated as being ‘On Duty’ for the duration of the specific activity. The appointed OIC, regardless of the qualifications he/she holds, is to ensure that there is clear delineation between the ‘On Duty’ and ‘Off Duty’ status of all activities and that all personnel taking part are briefed accordingly, further guidance can be found in JSP 765.”

The Statement of Case also included a copy of the Annex to Chapter 1 of JSP 765, which stated, in relation to expeditions, that the normal status of personnel would be on duty when participated in an activity recognised under the Scheme and “required to meet the aims of the expedition” and off duty when participating in other activities not required to meet the aims of the expedition “such as social events”. 2009DIN01-050 is a Defence Instruction and Notice and was copied in the Statement of Case. It was accurately quoted in the letter of 13 December 2011.

The decision of the tribunal of 15 June 2012
10.	It is of course disappointing that the explanations given to the claimant were put, not in terms of the legislation actually governing his claim, but in terms either of documents giving mere internal Ministry of Defence administrative guidance or of documents addressing the on duty/off duty distinction without any explanation of how that was relevant under the AFCS Order 2005. What is more disappointing is that that approach was followed through into the Secretary of State’s reasons for decision in the Statement of Case (pages 8 to 9a of the First-tier Tribunal papers). There was reference there to article 10, which was copied on pages 10 and 10a, but the reasoning seemed to be that the claimant was not participating in the adventurous expedition when he was injured because he was not engaged in an activity that was required to meet the aims of the expedition and was therefore not on duty. It is therefore not surprising that in making his submissions and in producing further evidence from the Colour Sergeant who was the Principal of the Royal Marines Sail Training Centre, Mr Meakin of BLESMA also concentrated on the on duty/off duty issue. Indeed, that is how, according to the records of proceedings in the papers, he described the issue in the appeal on 15 June 2012. Those records show that Mr Frith, representing the Secretary of State, did in his closing submissions refer specifically to article 10(3) in relation to social events and free time, but he still seemed to argue from the claimant having had free time or swimming just for recreation or freshening up to his being off duty.

11.	The tribunal referred in paragraph 12 of its decision to the application of article 10 of the AFCS 2005 to approved adventurous training courses or expeditions, subject to the exception in paragraph (3). It took the view in paragraph 13 that, as the approval for the expedition was for the activity of offshore sailing (pages 33a and 39), swimming was not an approved activity. Then it turned in paragraph 14 to:

“the assertion by the [claimant] that he was on duty at the time of his accident as the swim was both to aid physical fitness, a requirement of life in the Royal Marines, and also to ensure a satisfactory standard of cleanliness the facilities on board ship being extremely limited.”

The tribunal rejected that assertion on the evidence, saying that evidence that the skipper was happy for the marines to “go off and crack some physical activity whilst he was buying victuals” (in the words of the Colour Sergeant) was far removed from acting under an order or instruction. Then, the conclusion was that on the totality of the evidence the conditions claimed were not predominantly caused by service or predominantly made worse by service (although the latter test could not arise until the claimant left service).

The appeal to the Upper Tribunal
12.	The President of the War Pensions and Armed Forces Compensation Chamber, Judge Stubbs, gave the claimant permission to appeal to the Upper Tribunal on the ground that it was arguable that the tribunal of 15 June 2012 had erred in law in approaching the case on the basis that the sole issue was whether the claimant was on or off duty at the time of the accident. He also drew attention to my decision in EW v Secretary of State for Defence (AFCS) [2011] UKUT 186 (AAC), now reported as [2012] AACR 3. There I held that the fundamental test under the AFCS Order 2005 was not whether a claimant was in service or was on duty at the time of the incident in question, but whether the injury was caused and predominantly caused by service. I also held that article 10 provided only for inclusions within the meaning of service, so that if the circumstances of a case concerned with travel or with sports or adventurous training courses or expeditions fell outside the terms of article 10, the claimant could nevertheless still succeed under the general test of causation in article 7. I add that since the decision in EW was signed on 12 May 2011 and put onto the AAC website in June 2011, there was really no excuse for its implications not to have been considered by the Secretary of State in his reconsideration of the initial decision and submissions to the tribunal of 15 June 2012 and by the tribunal itself.

13.	Detailed grounds drafted by Mr Rawlinson and Ms Law were put forward with the notice of appeal. The response dated 19 February 2013 on behalf of the Secretary of State, drafted by Ms Ward, accepted that the tribunal had erred in law on the ground identified by Judge Stubbs, but submitted that that error was not material to the tribunal’s decision because on the facts as found it had inevitably to be concluded that the claimant’s injuries were not wholly or partly caused by service, so that the tribunal’s decision should be upheld as involving no material error of law. It was submitted that the claimant could not succeed under article 10 because his injury occurred during free time associated with the approved activities under paragraph (3). However, applying the general test of causation under article 7 it was said that the reasoning applied in paragraph 27 of EW applied also to the claimant’s case. The result in EW was described as being that a member of the armed forces who was injured in a road traffic accident whilst travelling from home to work, in uniform and “on duty”, could not be regarded as doing his job as a member of the armed forces at the time of the accident and that “the injury on the journey to work being a manifestation of a risk run by the general public using the streets of Lille, that injury could not properly be regarded as caused by [EW’s] service, let alone predominantly caused by service” (paragraph 27 of EW). The fact that EW would not have been where he was on the pedestrian crossing if he had not been serving in the armed forces and stationed in Lille merely formed part of the background setting. Ms Ward submitted that the risk of diving into a sandbank during a recreational swim was by the same token a risk run by the general public using the beach and the fact that the claimant would not have been on the beach if he had not been taking part in the adventurous training as part of his service was merely part of the background setting. Therefore, it was argued, his claim had inevitably to fail on the ground.

The tribunal’s errors of law
14.	Although there was broad agreement on how the tribunal of 15 June 2012 had gone wrong in law, the exact nature of the errors needs some exploration, because that affects how the case should be disposed of by the Upper Tribunal. 

15.	First, it is now common ground that the tribunal took too narrow a view in paragraph 13 of its decision of whether at the time of the accident the claimant was participating in an approved training course or adventurous expedition within the meaning of article 10(1)(c) of the AFCS Order 2005. Ms Ward accepted in paragraph 20 of her skeleton argument dated 18 October 2013 and confirmed at the oral hearing that the condition in article 10(1)(c) should be regarded as satisfied during the whole of the trip to Gran Canaria, so that the crucial question under article 10 was whether the exclusion in paragraph (3) applied. I accept that that is right in the circumstances of the present case. It would not have been necessary to make the exclusion in paragraph (3) if social events and free time associated with a course or expedition would not otherwise have been regarded as coming within the scope of article 10(1). There may of course be circumstances where what a claimant does is so removed from the course or expedition itself and what is reasonably incidental to it that it has to be said that the person is no longer participating. For instance, if a person went absent without leave from such a course or expedition to go and burgle some houses in the vicinity and got injured in the process, it would seem bizarre to ask whether that should be regarded as free time associated with the course or expedition. Rather the person would no longer be participating in the course or expedition at all. However, the circumstances of the present case are a very long way indeed from falling into such a category.

16.	Second, although the tribunal expressly mentioned the exclusion in article 10(3), it did not explain how it linked its consideration of the on duty/off duty question to that provision.  It may have considered that it did not need to deal with article 10(3) given its conclusion, now agreed to be legally in error, that at the time of the accident the claimant was not participating in the approved expedition. But that leaves the relevance of the on duty/off duty question more mysterious. The tribunal seemed to regard that question as one that arose discretely under the AFCS and that would provide the decisive answer to whether the claimant was entitled to benefit. The upshot is that, although some of the evidence the tribunal discussed could have been relevant to whether the accident happened during free time, none of its findings of fact were specifically directed to a test in those terms, nor was any conclusion expressed in terms of whether article 10(3) applied or not. The conclusion in paragraph 16 of the decision was that the claimant’s injuries were not predominantly caused by service. There was at the least a failure adequately to explain the tribunal’s conclusions on this issue.

17.	The result of the Secretary of State’s concession on the scope of article 10(1)(c) makes article 10(3) potentially decisive in the claimant’s case. If it does not apply, then he is entitled to benefit by virtue of article 10(1)(c) without any further consideration of questions of causation. As held in paragraph 18 of EW and as accepted by Ms Ward for the Secretary of State, the effect of article 10 is to expand the meaning of “service” in article 2(1) where one of its conditions is met. Thus, the condition at the end of article 10(1) that service is the predominant cause of the injury, worsening or death is whether service including the activity falling within article 10(1) is the predominant cause. There is a limit to what can be said as a matter of law about the meaning of “free time” in article 10(3) (“social event” not being relevant in the present case). The words are ordinary English words which must be given their ordinary meaning in their context. Although whether a person is properly to be regarded as off duty or on duty will be a relevant factor, it cannot be conclusive or used as a proxy for the question in the terms of the legislation. The particular context for considering free time is the approved activity in question. So the mere fact that, in the present case, the marines could not go anywhere or do anything that would prevent them being ready to sail at 1300 hours on 23 January 2010 would not in itself prevent the intervening time being free time. Nor would the facts that there were some prohibitions on what they could do (e.g. no swimming in the Marina where the yacht was berthed) or that the marines were still subject to a degree to military discipline and were in a sense subject to recall to the expedition at any time (new evidence put forward for the hearing of 24 October 2013 included that the group had to leave a mobile telephone number with the skipper for contact). On the other hand, sometimes the degree of constraint on what could be done could indicate that time was not truly free time (e.g. if there was a choice only between taking part in one or other of two activities). All the things just mentioned could be relevant factors and it is a question of fact and judgment for the decision-making body concerned in each case whether the conditions of article 10(3) are met. Since I have decided that this case should be remitted to a new tribunal for reconsideration, I prefer to say nothing more about the application of article 10(3) to the circumstances of the present case, especially as the new tribunal may well have rather more evidence than the tribunal of 15 June 2012 had.

18.	Third, on the assumption that the tribunal did not wrongly consider that if the claimant did not fall within article 10 he could not be entitled under the AFCS Order (see EW), it did not explain how it considered the on duty/off duty question relevant to the general test of causation under article 7. As held in paragraph 16 of EW, that test is whether the injury was wholly or predominantly caused by service, not whether the claimant was on duty at the time of the incident, nor even whether the claimant was doing their service job at the time. As I said in paragraph 26 of EW, not everything that happens to a person while doing their service job can be accepted as caused by service and some things that happen while not doing their service job can be so accepted. Although the tribunal’s conclusion was in terms of causation, there was no discussion of the test under article 7 or of the relevance and force of the factors specifically mentioned by the claimant (the need to maintain personal hygiene by swimming because of very limited facilities on the yacht and the requirement as part of life as a Royal Marine to take any opportunity to maintain physical fitness). Nor was there any discussion of any other potentially relevant factors, such as that it appeared (perhaps involving some reading between the lines of the evidence before the tribunal of 15 June 2012) that the skipper knew that the marines might be going swimming from the particular beach and said nothing to disapprove and that the whole point of the expedition was carrying out water-related activities. Overall, there was an error of law in the failure to apply the substance of the right legislative test and an apparent reliance on a wrong test.

Were the errors of law “material”?
19.	It was submitted for the Secretary of State that, because the errors of law identified above were not material to the outcome of the appeal before the tribunal of 15 June 2012, section 12(1) of the Tribunals, Courts and Enforcement Act 2007 did not apply so as to give the power to set aside the tribunal’s decision under section 12(2)(a). Subsection (1) provides that subsection (2) applies when on an appeal the Upper Tribunal finds that the making of the decision under appeal involved the making of an error on a point of law. Subsection (2) provides that:

	“(2) The Upper Tribunal –
	 (a)	may (but need not) set aside the decision of the First-tier Tribunal, and
	 (b)	if it does, must either—
		 (i)	remit the case to the First-tier Tribunal with directions for its reconsideration, or
		(ii)	re-make the decision.”

20.	The Secretary of State’s submission was based, in part at least, on the approach I took to the appeal in EW. There I held that the First-tier Tribunal had gone wrong in law by treating article 10 of the AFCS Order 2005 as having an exclusionary effect if a claimant did not meet its conditions in a case falling within its ambit and so not going on to consider the claimant could succeed under article 7. However, I disallowed the appeal to the Upper Tribunal on the basis that the only possible result in law on the essentially undisputed facts was that the claimant’s injury was not caused by service at all. In the formal decision I said that that was because the tribunal’s error of law was not material, so that section 12(1) of the 2007 Act was not satisfied, but in paragraph 38 I said that it did not matter whether the result was achieved by saying that there was not an error of law within section 12(1) or whether the discretion under section 12(2)(a) was exercised so as not to set aside the decision of the First-tier Tribunal. I still consider that that is right in general, because the important thing is whether the First-tier Tribunal’s decision is set aside or is allowed to stand. It is also the case that in one of the most frequently cited statements of the ways in which tribunals may go wrong in law, by Brooke LJ in R (Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982 at [9] – [10], it was noted that all of them contained the words “material” or “immaterial” and that errors of law of which it can be said that they would have made no difference to the outcome do not matter. However, on further reflection it seems to me that in the particular context of section 12 of the 2007 Act, with its express inclusion in subsection (2)(a) of a discretion to cater, amongst other things, for situations where it might otherwise have been decided that a decision had to be set aside for an error that did not matter, the Upper Tribunal should be slow to conclude that an identified error of law should not count for the purposes of section 12(1). Once such a conclusion is reached there is no discretion; the First-tier Tribunal’s decision cannot be set aside. The “not a material error” approach might still extend, for instance, to purely incidental errors on irrelevant issues or, say, cases where the tribunal gave two reasons for decision, each on its own sufficient to produce the result, and only one is held to involve an error on a point of law. But it seems to me generally better to deal with the issue under the discretion in section 12(2)(a) except in the most obvious of cases.

21.	In the present case, it seems to me particularly relevant that the tribunal of 15 June 2012 never really got to grips with the crucial questions of law and did not make findings of fact in terms relevant to those questions. In those circumstances I consider it better not to dispose of the case on the basis that the taking of a fundamentally wrong approach to the case and the evidence before the tribunal could not rationally have affected the outcome. Therefore I undertake no further discussion of what sorts of errors of law might or might not be material in varying circumstances.

Should the tribunal’s decision be set aside under section 12(2)(a) of the 2007 Act?
22.	The central submission for the Secretary of State was that the circumstances of the present case were a paradigm case of injury during free time under article 10(3) of the AFCS Order, so that the claimant could not benefit from article 10, and that the only result possible in law on the evidence before the tribunal of 15 June 2012 on the approach set in EW was that the claimant’s injury was either not caused or not predominantly caused by service. The injury could only be regarded as the manifestation of a risk run by the general public using the beach. It was submitted that, if that did not lead to the conclusion that the tribunal’s errors of law were not material, it should in any event lead to the discretion in section 12(2)(a) of the 2007 Act being exercised not to set the tribunal’s decision aside.

23.	Mr Rawlinson’s submissions to the contrary maintained that there was material before the tribunal of 15 June 2012 from which it would have been proper for it to conclude that the injury to the claimant did not occur during free time under article 10(3) or, if not, that service was nonetheless the predominant cause under article 7. He also submitted that it was relevant to the exercise of the judicial discretion under section 12(2)(a) of the 2007 Act that there was new evidence in existence that threw additional light on those matters (e.g. the witness statements made by the claimant, the skipper of the yacht and the Colour Sergeant who is Principal of the Royal Marines Sail Training Centre included in the hearing bundle for 24 October 2013) and the possibility of further relevant evidence emerging in the disclosure process in the civil action running against the Ministry of Defence. Mr Rawlinson also made detailed and tightly structured submissions on the proper approach to the Upper Tribunal’s powers under section 12 of the 2007 Act in the context of the rights of appeal granted by the Pensions Appeal Tribunals Act 1943.

24.	I start with those last submissions. The appeal to the First-tier Tribunal in the present case was under section 5A of the 1943 Act, which provides:

“5A.—(1) Where, in the case of a claim to which this section applies, the Minister makes a specified decision—
 (a)	he shall notify the claimant of the decision, specifying the ground on which it is made, and
 (b)	thereupon an appeal against the decision shall lie to the appropriate tribunal on the issue whether the decision was rightly made on that ground.

 (1A) This section applies to—
 (a)	any such claim as is referred to in section 1, 2 or 3 of this Act;
 (b)	a claim under a scheme mentioned in section 1(2) of the Armed Forces (Pensions and Compensation) Act 2004 (compensation schemes for armed and reserve forces).

		 (2) For the purposes of subsection (1), a “specified decision” is a decision (other than a decision which is capable of being the subject of an appeal under any other provision of this Act) which is of a kind specified by the Minister in regulations.”

As in force down to 8 May 2011, the Pensions Appeal Tribunals (Armed Forces and Reserve Forces Compensation Scheme) (Rights of Appeal) Regulations 2005 provided in regulation 3 that a decision which determined whether an award of benefit under the 2004 Act was payable or the amount payable under an award was a specified decision for the purposes of section 5A(2). As from 9 May 2011, that provision is continued by the Pensions Appeal Tribunals Act 1943 (Armed Forces and Reserve Forces Compensation Scheme) (Rights of Appeal) Regulations 2011. Thus the decision against which the claimant appealed in the present case was a specified decision for the purposes of section 5A, which applies to the AFCS Order 2005 and the AFCS Order 2011 by virtue of subsection (1A).

25.	Mr Rawlinson submitted that the effect of the decision of the tribunal of 15 June 2012 was to confirm the decision under appeal and its grounds, since its powers were specifically to determine whether the decision was rightly made on the ground that had been notified to the claimant. He submitted that the ground was the reasons set out in the letters of 22 February 2011 and 13 December 2001 and that those reasons were fundamentally flawed both in law and in fact. Therefore, the decision confirming that ground should not be allowed to stand, so that even if the Upper Tribunal considered, contrary to his submissions, that the only possible outcome was to reject the claim, that should be done by a re-making of the decision on the proper ground under section 12(2)(b)(ii), not by an exercise of the discretion under section 12(2)(a). Further, if the terms of section 5A of the 1943 Act did not create any special context, Mr Rawlinson submitted that, in the absence of his having discovered any authority on the operation of section 12(2)(a), the discretion not to set aside should be used sparingly and not where there had been a “root and branch” error.  Nor should it be used where a fuller range of relevant evidence was available or potentially available.

26.	In reply, Ms Ward submitted that the ground of the initial decision and the decision not to change it on reconsideration was that the claimant’s injury was not wholly or partly caused by or made worse by service and it was that ground that was confirmed by the tribunal of 15 June 2012, not the reasons expressed for reaching that conclusion. Therefore she said, subject to correction on taking further instructions (which was not forthcoming), the terms of section 5A established no special context for the operation of section 12 of the 2007 any different from that which would apply to any decision of a First-tier Tribunal. Ms Ward further submitted that the claimant would suffer no particular disadvantage from the decision of the tribunal of 15 June 2012 being left in place, since it would be made clear in the Upper Tribunal’s decision what the proper legal basis was for the outcome of no entitlement. That, she pointed out, was what appeared to have happened in EW.

27.	I agree with Mr Rawlinson to the extent that section 5A, like the other appropriate section of the 1943 Act applying to other types of appeal, does establish a special context for consideration of the exercise of the discretion in section 12(2)(a) of the 2007 Act. But it does not in my judgment create an absolute bar to the exercise of the discretion not to set aside. It seems to me that the submission for the Secretary of State overlooks the link in section 5A between what must be notified to the claimant under section 5A(1)(a) and the scope of a subsequent appeal. That link was considered important by Newman J in Secretary of State for Defence v Rusling [2003] EWHC 1359 (QB), in relation to section 1 of the 1943 Act in that case. Paragraph 33 of that decision included the following:

“The words of the section require claims to be rejected on a specific ground. Thereafter an issue will remain for appeal as to whether it was ‘rightly rejected on that ground’. The contrary argument, advanced for the Secretary of State, is that the substance of the claim for which a right of appeal is accorded is the rejection of the claim and not the ground on which it has been rejected.”

In paragraph 37 Newman J described that argument for the Secretary of State as plainly wrong and said that:

“the section intends that the decision and the ground on which it is based should form the basis for an appeal.”

Thus in that case the scope of an appeal against the rejection of a claim for Gulf War syndrome on the ground that no such condition existed included whether the claimant was suffering from that condition even though all the symptoms claimed by the claimant had already been covered by the acceptance of other conditions as attributable to service. In essence, Ms Ward was making the same argument here as was rightly rejected, in my view, in Rusling and which must be rejected again for the same reasons.

28.	There therefore seems to me force in Mr Rawlinson’s submission that a tribunal’s decision confirming misguided grounds should not be allowed to stand. It is not at all clear whether in a case like the present the reasons and facts found by the tribunal would be regarded as replacing the reasons given in the decision under appeal or in the decision on reconsideration (which appears to be made final by article 54(3)(f) of the AFCS Order 2011). I need not go into the possibilities. The existence of doubt perhaps reinforces the submission.

29.	However, it may still be the case that a claimant could gain no practical advantage from having a decision of a First-tier Tribunal set aside, in which case it might still be proper to exercise the 2007 Act section 12(2)(a) discretion against setting aside in a case stemming from the 1943 Act. That is the approach that has been taken in a number of cases by three-judge panels of the Administrative Appeals Chamber of the Upper Tribunal when considering appeals from different First-tier Chambers, as I mentioned at the oral hearing. In BB v South London & Maudsley NHS Trust & MoJ [2009] UKUT 157 (AAC), a decision of a First-tier Tribunal in a case under the Mental Health Act 1983 was decided to have involved an error of law in the giving of inadequate reasons, but by the time the Upper Tribunal made its decision arrangements had already been made for a fresh hearing on a new application for discharge which would be determined according to the circumstances as at the date of the new hearing. The Upper Tribunal asked itself whether setting aside the First-tier Tribunal’s decision “could be of practical benefit to any of the parties”. It concluded that it could not, because there was no basis of concern after its own decision that in the new hearing the decision of First-tier Tribunal would be treated as anything other than erroneous in law and that, since there appeared no obstacle to the new hearing going forward, there was no advantage in having two tribunals consider matters.

30.	In Hampshire County Council v JP (SEN) [2009] UKUT 239 (AAC), reported at [2010] AACR 15, a special educational needs case, a local authority appealed against a First-tier Tribunal’s decision naming a particular school for a child although a place would not be available for nine months. By the time the Upper Tribunal decided the appeal a place had become free and the local authority was content to fund the child there. The Upper Tribunal said in paragraph 41 that:

“it is unnecessary for us to set aside the decision of the First-tier Tribunal and accordingly we exercise our power under section 12(2)(a) of the [2007 Act] not to do so. It is sufficient that the parties should know that we consider the reasoning of the First-tier Tribunal is flawed and inadequate so that its finding that [the child] required residential education need not be given weight in any review of [the child’s] special educational needs.”

31.	KF and others v Birmingham and Solihull Mental Health Foundation Trust and another [2010] UKUT 185 (AAC), reported at [2011] AACR 3, also arose from the Mental Health Act 1983. Two of the individuals concerned had been discharged from hospital (the only order that a First-tier Tribunal could give on remission) by the time of the Upper Tribunal decision. In paragraphs 40 and 41 the Upper Tribunal accepted that that justified not setting aside a flawed decision of the First-tier Tribunal in the particular cases, but not that that would always be appropriate in such circumstances, warning of the danger that a future decision-maker might give inappropriate weight to a flawed decision. All three of the decisions just mentioned are available on the AAC’s website.

32.	There were special circumstances in the three cases mentioned, in that events had moved on in a way that meant that anything that a new First-tier Tribunal on remission or the Upper Tribunal in re-making the decision could do would not have had any practical effect. That is not the situation in the present case where the decision to reject the claim for an injury is a once and for all decision, subject to very limited provisions for review, possibly practically non-existent in the case of a decision of a First-tier Tribunal. However, what it is possible to take more generally from the Upper Tribunal decisions is that the Upper Tribunal needs to be fairly certain in cases that have not been disposed of under section 12(1) of the 2007 on the limited basis suggested in paragraph 20 above that there could be no practical disadvantages to any party, and in particular the otherwise successful appellant, in not setting aside the decision of the First-tier Tribunal before exercising the discretion not to do so. In the present case, although there can probably as a matter of principle be no new claim under the AFCS Order for injuries that have already been rejected and the possibilities of review of such rejections may be practically non-existent, I am not confident enough that in the complex world of the AFCS there might not be some danger of a future decision-maker giving inappropriate weight to the flawed reasoning of the Secretary of State and the tribunal of 15 June 2012.

33.	There is the further powerful factor that further evidence has been produced for the claimant and it is submitted that further relevant evidence may come to light in the course of disclosure by the Ministry of Defence in the civil action against it or as a result of the greater resources no doubt available to the claimant’s representatives to seek out further evidence for the purposes of that action. In general, if the tribunal’s errors of law are not plainly immaterial (e.g. as suggested at the end of paragraph 20 above), which might anyway have lead to disposal of the appeal under section 12(1) of the 2007 Act, the successful appellant is entitled to have a redetermination of the appeal on the basis of a full consideration of all the evidence now or potentially available. It would then require a very high degree of certainty that the tribunal had reached the only result that was legally and rationally available to it on the evidence it had to justify not setting the tribunal’s decision aside. That degree of certainty is not present here.

34.	I do not wish to go into Mr Rawlinson’s submissions about the force that should be attributed to the various factors he put forward to suggest both that the claimant was not in free time when he was injured and that the injury was caused and predominantly caused by service. That is because I do not wish to say anything that could be taken as seeking to influence the judgment of the new tribunal to which the case is remitted on those issues. I restrict myself to one observation on the Secretary of State’s submissions. Ms Ward’s skeleton argument suggested that it followed from the decision in EW that, if the injury suffered was the manifestation of a risk run by the general public in an area open to the general public, the injury could not regarded as caused by service. If that were right, there might be a strong argument that the only rational result that the tribunal of 15 June 2012 could have reached if it had properly applied article 7 of the AFCS Order 2005 was that the claimant’s injury was not caused by service (leaving aside for the moment the effect of article 10(3)). However, in my judgment that submission is based on a misreading of EW, albeit a misreading aided by some clumsiness of expression (at the least) in that decision, so that the Secretary of State’s argument cannot work to its full extent.

35.	The relevant parts of the decision in EW for present purposes are paragraphs 26 to 28 and the “offending” words are the first sentence of paragraph 27:

	“26.	In my judgment, in the circumstances of the present case, the claimant could not be regarded as doing his job as member of the armed forces while walking from his apartment in Lille to the Citadelle. He was doing something which was necessary for him to carry out that job, but he was not yet doing it. I do not have to decide at what point before entering his office or work-building that would change. I suspect that it might be said to be at the point at which he entered an area where he was entitled to be only as a member of the armed forces and not as a member of the general public. However, the precise identification may not always matter because not everything that happens to a person while doing their service job can be accepted as caused by service, let alone as having service as the predominant cause. And some things that happen while the person is not doing their service job can be accepted as being caused by service. It does not affect my conclusions so far that the claimant was under a duty, in a sense, to get to the Citadelle to do his job (as are all employees) or regarded himself as (or even was in fact) on duty when doing so or when wearing his uniform or whether he was subject to military discipline. He was still not doing his job.

	27.	The injury on the journey to work being a manifestation of a risk run by the general public using the streets of Lille, that injury could not properly be regarded as caused by his service, let alone being predominantly caused by service. Nor was the nature of that risk in any way restricted to Lille as compared with any other place, including within the United Kingdom, where he might have been posted and had to live in non-service accommodation. I think that his RBL representative at the hearing on 28 October 2009 had it right when she said that service provided the setting for the incident. Where she went wrong was in the submission that that meant that service was the predominant cause. It is of course true that the claimant would not have been where he was on the pedestrian crossing in Lille if he had not been serving in the armed forces at the time. However, that factor cannot be differentiated from the great morass of other background factors in the absence of which he would not have been where he was at the particular time. Such factors cannot as a matter of common sense and common experience be regarded as a cause of the claimant’s injury. They merely form part of the background setting.

	28.	There may of course in other circumstances be factors that mean that service is a cause, and potentially the predominant cause, of an injury suffered while a person is travelling to and from work. The examples mentioned above of a person being targeted because of their uniform or of carrying service equipment that is linked to the occurrence of the incident might qualify. It would be wrong in the present decision to seek to set out any more defined principles by which such circumstances can be identified. Each case must be considered on its merits. I do add this word of caution, linked to the hypothetical example of the claimant here having been ordered to divert from his normal morning route to meet a visiting officer at the Lille Eurostar/TGV station and, say, being knocked down on the same pedestrian crossing at the same time on the way to the Citadelle. In such circumstances, service might be regarded as differentiated from the overall background setting so as to be at least a cause, but the incident would still have been a manifestation of a risk run by the general public using the streets of Lille. There would then be a serious question to be answered whether service could be determined to be the predominant cause. I come back to the identification of predominant cause in paragraph 31 below when discussing some of the authorities relied on by [the claimant’s representative in that case].”

36.	The first sentence of paragraph 27 of EW appears to set out a proposition of completely general application. However, it is in my judgment plain from the overall context and in particular what was said in paragraph 28 that the conclusion in the first sentence of paragraph 27 was limited to the particular circumstances of the case in EW, where there were not any countervailing factors of the kind mentioned in paragraph 28. There is a warning in that paragraph that each case must be considered on its merits, i.e. not regarded as conclusively determined according to the result reached on the facts in EW. Accordingly, in the present case, the factor that the claimant’s injury was a manifestation of a risk run by members of the general public using the same public beach was not conclusive against causation by service. There were other relevant factors also to be taken into account. Those circumstances leave the case short of the required degree of certainty that there was only one result that the tribunal of 15 June 2012 could legally and rationally have reached on the evidence if it had properly considered the issue of causation.

37.	The discretion in section 12(2)(a) of the 2007 Act should therefore not be exercised so as not to set aside the decision.

Conclusion and directions
38.	The case therefore falls within section 12(2)(b) of the 2007. Since the making of a new decision on the claimant’s appeal will involve the consideration and evaluation of new evidence and the judicial management of the relationship between that appeal and the claimant’s civil action against the Ministry of Defence, there must plainly be a remission to a new First-tier Tribunal with directions of law following the setting aside of the decision of the tribunal of 15 June 2012.

39.	In relation to those directions, I shall give no directions about any timetable for the production of further evidence and/or a revised Statement of Case from the Secretary of State. I leave that for the consideration of the President of the First-tier Chamber or whichever judge considers the arrangements for the rehearing, subject to any applications that might be made by either party. In relation to that I have not instructed that the considerable volume of paper in the hearing bundle and authorities bundle (including a good deal of duplication of papers already in the Upper Tribunal file or otherwise available) prepared by the claimant’s representatives be added into the Upper Tribunal file. The claimant’s solicitors may therefore wish to submit particularly relevant items (e.g. the complete copies of JSP 419 and JSP 465 and the witness statements referred to in paragraph 23 above) and any further evidence to the First-tier Tribunal separately.

40.	I also regret that, although I direct below that the new tribunal is to apply the legal framework described above, that I can give no directions of law about the meaning or application of the test in article 7 of the AFCS Order 2005 that service be the predominant (51%) cause of injury, death or worsening. There was some rather inconclusive discussion of this question at the hearing on 24 October 2013, including a suggestion that predominant could not in certain situations logically mean more than 50% as provided in article 2, but must refer to the most powerful out of a number of causes that meet the “but for” test. There was certainly insufficient argument put forward to enable me to evaluate that suggestion or to say anything beyond what appears in EW about the great difficulties involved in getting hold of the implications of the test in a practical way. More important, I consider that guidance can only be given in relation to particular circumstances and I do not know what findings of fact the new tribunal might come to. The parties will of course be free to develop their arguments on this issue at or in advance of the new hearing.

41.	The decision of the tribunal of 15 June 2012 is accordingly set aside as involving errors on points of law for the reasons given above. The case is remitted to a new First-tier Tribunal for reconsideration in accordance with the following directions. No-one who was a member of the tribunal of 15 June 2012 is to be a member of the new tribunal. There must be a complete rehearing of the appeal on the evidence produced and submissions made to the new tribunal, which will not be bound in any way by any findings made or conclusions expressed by the tribunal of 15 June 2012. The new tribunal is to follow the legal approach set out in paragraphs 15 to 18 and 34 to 36 above. The evaluation of all the evidence and submissions will be entirely a matter for the judgment of the members of the new tribunal. The decision on the facts in this case is still open.

	(Signed on original):  J Mesher 
	Judge of the Upper Tribunal    

Date:             31 October 2013