SN v Secretary of State for Defence (AFCS) (War pensions and armed forces compensation - Armed Forces Compensation Scheme)

Factual and Procedural Background

The Appellant joined the Army in May 2008, initially serving in one regiment before transferring to another in 2012. Signs of mental illness appeared in 2013, resulting in multiple hospital admissions and a medical downgrading in December 2013. The Appellant was recommended for medical discharge in March 2014 and claimed compensation under the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011 (the 2011 Order) on the basis that his mental illness was caused by bullying during service. The Secretary of State rejected the claim, asserting that bullying was due to individual actions rather than service life and that service was not the predominant cause of the illness. The Appellant appealed, and the First-tier Tribunal ultimately dismissed the appeal after deciding the claim lacked substance and attributing the Appellant's perception of bullying to paranoia. The Appellant then sought permission to appeal to the Upper Tribunal, which was granted, leading to the present decision.

Legal Issues Presented

1. Whether the Appellant's mental illness was caused, wholly or partly, by service within the meaning of Article 8 of the 2011 Order.
2. Whether the Appellant's mental illness was worsened by service under Article 9 of the 2011 Order and, if so, whether service was the predominant cause of that worsening and of the downgrading.
3. Whether the First-tier Tribunal erred in law by failing adequately to analyse the evidence on causation and predominance of service-related causes.
4. The proper application and interpretation of Articles 8 and 9 of the 2011 Order, including the concept of "predominant cause" and the relevance of findings on bullying, victimisation, and reasonable criticism within service.

Arguments of the Parties

Appellant's Arguments

• The Appellant contended that his mental health problems were due to service, specifically harassing and bullying behaviour by peers and senior non-commissioned officers.
• He denied non-service causes such as financial problems or unresolved personal disputes.
• The Appellant provided witness lists and detailed allegations of bullying within the workplace.
• He placed significant weight on the Ministry of Defence's Bullying and Harassment Complaints Procedures (JSP 763).

Respondent's Arguments (Secretary of State)

• The Secretary of State argued the mental illness was multifactorial, with significant non-service causes including childhood maltreatment, relationship breakdowns, debt, and cultural factors.
• The Secretary of State maintained that the Appellant's perception of bullying was delusional and that what was described as harassment was more accurately banter or reasonable criticism within the military context.
• It was submitted that service was not the predominant cause of the mental illness or its worsening.
• Regarding Article 9, the Secretary of State argued the downgrading was due to the nature of the illness and safety concerns, not because service worsened the condition.
• The Secretary of State agreed the case should be remitted for fuller reasoning by a fresh tribunal.

Table of Precedents Cited

Court's Reasoning and Analysis

The court carefully analysed the statutory framework of the 2011 Order, focusing on Articles 8 and 9 concerning injury caused by or worsened by service, and the requirement that service be the predominant cause. It noted that the injury claimed was the mental disorder manifesting in late 2013, rather than any pre-existing personality disorder or childhood injury.

The court found that the First-tier Tribunal erred in law by concluding that none of the causes of the mental illness were service-related and thus disregarding the predominance test. The Tribunal had failed to properly consider whether reasonable criticisms or punishments by non-commissioned officers, which are inherent in military service, could be a service cause of the mental illness.

The court observed that Articles 8 and 9 are alternative but related pathways for compensation and that the Tribunal's reasoning on Article 9 was partly flawed, particularly its acceptance of the Secretary of State's submission that downgrading for safety reasons precluded compensation.

It emphasized the no-fault nature of the scheme, clarifying that service may cause injury even absent improper behaviour and that the reasonableness of conduct may affect the degree of stress and thus causation.

The court concluded that the First-tier Tribunal should have weighed the relative causative potency of service and non-service factors rather than dismissing any service cause outright.

Given the complexity and the need for medical expertise and detailed factual findings, the court declined to remake the decision and instead remitted the case for re-determination by a differently constituted First-tier Tribunal.

Holding and Implications

The appeal is allowed. The decision of the First-tier Tribunal dated 28 February 2017 is set aside, and the case is remitted to a differently constituted panel of the First-tier Tribunal for re-decision.

The direct effect of this decision is to require a fresh hearing and determination of the Appellant's claim under the 2011 Order, ensuring proper application of the legal principles concerning causation and predominance. No new legal precedent is established beyond clarifying the necessity of appropriate analysis of service-related causes in mental health claims under the scheme.