As a firm, we are proud supporters of military personnel, with many employees having years of experience in supporting those serving in the Armed Forces and their loved ones. With several employees having served themselves, having spouses overseas or having grown up in military families, we are best placed to advise those with questions. One of our experienced lawyers Sarah Dureau, instructing Tom Webb Counsel from 3PB, recently played a pivotal role in challenging a decision made by Veterans UK (VUK) regarding the categorisation of a mental health injury under the Armed Forces Compensation Scheme (AFCS).
Background: Understanding the Armed Forces Compensation Scheme and relevant legislation
The AFCS, operating under The Armed Forces and Reserve Forces (Compensation Scheme) Order 2011 (SI 2011/517), serves as a means to compensate Armed Forces members for injuries attributable to or aggravated by their service since April 6, 2005. The scheme was established in 2005 before being significantly updated in 2011 following a review by Lord Boyce. Injuries that occurred before April 6 2005 are covered by the War Pensions Scheme (WPS).
Veterans UK administers both schemes, and there is a right of appeal to the First Tier Tribunal sitting in the War Pensions and Armed Forces Compensation Chamber (WPAFCC). Thereafter, with permission, appeal lies to the Upper Tribunal (UT) and from there, again with permission, to the Court of Appeal.
The case: Upholding the claimant’s right
Our client, a Royal Navy veteran, sought compensation for mental health injuries sustained during service from 2006 to 2017. Despite Veterans UK acknowledging the injuries as permanent and that they were attributable to service, they were assessed as moderate. The claimant contested this, asserting that the injuries deserved a categorisation of severe.
The initial attempts at appeal in the First-Tier Tribunal and Upper Tribunal, where the claimant represented himself, proved unsuccessful. He was also denied permission to appeal to the Court of Appeal.
Undeterred, he sought the expertise of Sarah Dureau and Tom Webb, who have a wealth of experience in Armed Forces Compensation Scheme and War Pensions Scheme cases. Sarah and Tom have regularly worked together on a number of Armed Forces Compensation Scheme and War Pensions Scheme cases and are both very familiar with the background, provisions and case law in this area. They advised that there were prospects of success on appeal and represented the claimant in obtaining permission from the single Judge on 8th August 2023 before representing him at the Court of Appeal on 31st January 2024.
Challenging the categorisation
The crux of the legal arguments centred around the interpretation of ‘functional limitation’ definitions, specifically whether the claimant’s mental health injuries fell into the ‘moderate’ or ‘severe’ category of Table 3 of the 2011 Order. The argument challenged the previous decisions that relied heavily on the regularity of the claimant’s work since discharge, asserting that a broader consideration of the trajectory of his work from onset of the injuries was necessary.
In a landmark decision, the Court of Appeal accepted these arguments, overturning the decisions of the Upper Tribunal (UT) and remitting the case to a differently constituted First-Tier Tribunal (FtT) for a fresh decision. The full judgment can be accessed here.
Significance and future implications
Court of Appeal decisions in the realm of Armed Forces Compensation Scheme are rare, making this victory a significant precedent, particularly concerning mental health categorisations. The judgment provides clarity on the severity levels of permanent mental health injuries, serving as a valuable guide for future claimants and those already receiving compensation under Table 3.
3PB offers additional insights on this point.
Contact our Armed Forces Compensation Claims Solicitors
We remain committed to supporting the Armed Forces community, ensuring their rightful compensation and legal representation. This triumph in the Court of Appeal reflects our dedication to achieving justice for our clients.
As an ex-member of the Armed Forces, Sarah Dureau leads our Armed Forces Department, offering advice in various areas. She provides free 30-minute interviews to anyone seeking compensation under the War Pensions Scheme or the Armed Forces Compensation Scheme. Sarah can guide individuals in reviewing decisions from Veterans UK and exploring grounds for challenging these decisions in the Tribunal and beyond. To discuss your situation with Sarah or a member of the team, contact her at sarah.dureau@parkerbullen.com or call 01993 670944.