Court of Appeal rules against Veterans UK in AFCS Claim

The Court of Appeal has ruled that Veterans UK wrongly applied the rules of the AFCS (Armed Forces Compensation Scheme) in a claim brought by a distinguished Royal Navy Surgeon Commander.

Christopher Pearson, who for seventeen years served as a consultant ear, nose and throat specialist, developed work-related stress and he was diagnosed with a mental health disorder.  His illness resulted in him being medically discharged in 2017 and he applied for an award under Table 3 of the Armed Forces Compensation Scheme. 

In July 2018, medical advisors instructed by Veterans UK, who administer the scheme, concluded that his illness was caused by his military service, and they assessed him for a Table 3, Item 2, Level 8 award, defined under the scheme as a:

Permanent mental disorder causing moderate functional limitation or restriction.  

Surgeon Commander Pearson appealed. He asserted that the Secretary of State (i.e. Veterans UK) were wrong in law. It was his evidence that his illness caused him to suffer severe functional limitations or restrictions and he should have been assessed for a significantly higher tariff award.  

At the First Tier Tribunal he lost, but appealed to the Upper Tribunal who sadly, agreed with the Judge of the First Tier.  He appealed to the Court of Appeal; a rare occurrence in our experience.

In a unanimous decision, his appeal was allowed.  

The issue in this case concerned the appellants ability to hold down a regular job. Lord Justice Holroyde said this:

‘The appellant had enjoyed an impressive career as a full time consultant surgeon with many clinical and non-clinical responsibilities. During the years between the diagnosis of his mental disorder in 2009, and the respondent’s decision in 2018, the appellant’s capacity for work followed an inexorably downward course’ 

Furthermore:

‘At the time of his discharge, the only work he could undertake was about one day a week in a role which was far removed from his former employment, and which he could only manage by making adjustments suitable to his condition. All of that unhappy history was in my view clearly relevant…’

His case has been referred back to the First Tier Tribunal for a fresh set of eyes and decision.  It would be correct to assume that unless the Secretary of State was to appeal to the UK Supreme Court and overturn this judgment, that the Surgeon Commander will be assessed to receive a Level 6, Item 1 award of £144,200 plus a Guaranteed Income Payment at 75%.  

This decision will have far reaching implications on how residual employment impacts on the assessment of the appropriate descriptors in Table 3 of the Armed Forces Compensation Scheme.

The judgment, which can be found here, usefully summarises the scheme and will be of interest to all service personnel, veterans and their legal advisors involved in AFCS claims.

Alma Law has a unique and unrivalled expertise in AFCS and military claims. We are led by solicitor Grant Evatt, a veteran of 29 Commando and an authority in military claims: "I have represented hundreds of injured troops, veterans and many grieving families in more than twenty years as a solicitor. It is an honour and a privilege to serve them."

We urge all military personnel and veterans who have sustained a serious injury because of their service and are unclear of their legal rights, to contact us for a free, no obligation consultation about pursuing an AFCS and a personal injury claim for their injuries and financial losses.

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