IN THE UPPER TRIBUNAL	Case No.  CAF/609/2009
ADMINISTRATIVE APPEALS CHAMBER

Before:	Judge of the Upper Tribunal: E A Jupp 

Decision:	The decision of the War Pensions and Armed Forces Compensation Chamber given on 14 November 2008 under Ref: AFCS/61/2008 by a tribunal sitting in London was erroneous in law.  Accordingly, appeal by the Secretary of State for Defence succeeds.  Under section 12(2)(a) and (b)(1) of the Tribunals, Courts and Enforcement Act 2007 I set aside the tribunal’s decision and remit the appeal for reconsideration by a differently constituted tribunal of the War Pensions and Armed Forces Compensation Chamber.  

Directions:	My directions and guidance are set out in paragraphs 19, 20, 24, 26, 28 and 31  to 34 below.

REASONS FOR DECISION

1.	The claimant is a Flight Lieutenant in the Royal Air Force, born on 26 October 1971.  On 17 January 2006 he broke the tibia and fibula of his right leg in a spiral fracture whilst competing in a demonstration ski race as part of the RAF Ski Championships.  Treatment included the insertion of a tibial nail.  Under Article 10 of the Armed Forces and Reserve Forces (Compensation Scheme) Order 2005 (SI 2005/439) (the Scheme) which is the relevant Order for this appeal, subject to satisfying the other conditions for entitlement, the claimant would be entitled to an award of benefit as he was participating in a sport authorised in accordance with regulation 10(a).  

2.	The Scheme was amended by the Armed Forces and Reserve Forces (Compensation Scheme) (Amendment) Order 2006, (SI 2006/1438) which came into force on 26th July 2006.  For the purposes of this decision, there is no difference between the two Orders, save that helpfully the 2006 amendment numbered the injuries listed in the various Tables in Schedule 4.  For that reason, when referring to the Tables, references to the legislation (apart from those in paragraphs 3- 5, which are as recorded at the time) are as amended by the 2006 Order 

3.	The claimant initiated his claim for compensation promptly by a telephone call on 17 February 2006.  After obtaining treatment details and a medical report, on 18 May 2006, the Veterans Agency (the VA) made an award as follows:

Accepted condition 	Tariff awarded	% of tariff payable	
		%	Amount	

Spiral fracture right
tibia

Spiral fracture right
fibula	TARIFF 13
Fracture of one femur, ulna, tibiae, humeri or radi from which the claimant has made, or is expected to make a substantial recovery within 26 weeks
£5,250.00

TARIFF 15
Fracture of fibula from which the claimant has made, or is expected to make a substantial recovery within 26
weeks
£1,050.00	100%

30%	£5,250.00

£315.00	
	
			Total amount payable	£5,565.00	

4.	By telephone the claimant notified the VA that he wished to appeal against the Tariff level, considering his injuries to be a permanent restriction as he would never be able to ski race again.  

5.	The initial decision was then reconsidered and this resulted in a further award as follows:

Accepted condition 	Tariff awarded	% of tariff payable	
		%	Amount	

Spiral fracture right
tibia

	TARIFF 12
Fracture of one humerus, femur, radius, ulna or tibia, which has caused, or is expected to cause, significant functional limitation and restriction beyond 26 weeks.  
£8250
	100%

	£8250 (minus £5250 already paid) £3000

Spiral fracture right fibula	TARIFF 14
Fractured fibula, which has caused, or is expected to cause, significant functional limitation and restriction beyond 26 weeks.
£2625	30%	£787.50 (minus £315 already paid) £472.50	
			Total amount payable	£3472.50	

6.	There followed a period when it was not entirely clear as to whether or not the claimant wished to proceed with his appeal and the VA applied for it be struck out.  The President of the Pensions Appeal Tribunal obtained the claimant's confirmation that he did wish to continue.  He identified no further grounds of appeal; his appeal accordingly proceeded to a hearing.

7.	The tribunal was held on 14 November 2008 in London, the claimant being present without representation, and the VA being represented by Mrs Atkinson.  By this time it was 2½ years since his injuries and the claimant had returned to full flying duties and to skiing, although not competitively.  His evidence was that he found kneeling difficult and had some difficulty with extreme movements of his right ankle, possibly caused by the screw from the tibial nail.  A medical examination of the claimant’s lower limbs was carried out and the tribunal identified and recorded nine findings to which I shall refer again below.  The tribunal found the claimant to be a helpful and reliable witness.  It also accepted the evidence of the copy X‑ray photograph attached to its decision which showed the extent of the injury.  It concluded the reasons for its decision:

	“Given our findings of fact we consider that the injury is more appropriately placed at Item 11, Table 2 (Tariff 8) of which there are 3 elements to be satisfied.

		(a)	Complex injury involving skin, subcutaneous tissues, muscle, bone and nerves:  evidenced by therapeutic fixation and findings at (iv), (iii), (ii) above.

		(b)	All or most of the area from knee to ankle:  evidenced by appellant’s evidence, the pin which extends from knee to ankle and clinical findings above.

		(c)	Causing Permanent Functional Limitation and Restriction – evidenced by appellant’s evidence, clinical findings at (iii), (iv), (vi), (vii) and (ix) in particular.

	We therefore amend the award accordingly.”

8.	The Secretary of State sought permission to appeal on the grounds that the tribunal erred in law by misapplying or misunderstanding:

	i.	Table 8 of the Tariff, relating to fractures and dislocations, and/or misdirected itself in law and as a result erred in its rejection of the Secretary of State’s descriptor and its selection of the Table 2, Item 11descriptor; 

	ii.	Article 7 of the Scheme and as a result erred in its rejection of the Secretary of State’s descriptor and its selection of the Table 2, Item 11 descriptor; 

	iii.	the expression “complex injury” and/or misdirected itself in law and as a result erred in its rejection of the Secretary of State’s descriptor and its selection of the Table 2, Item 11 descriptor;

	iv.	the expression “injury covering all or most of the area from knee to ankle …” and/or misdirected itself in law and as a result erred in its rejection of the Secretary of State’s descriptor and its selection of the Table 2, Item 11 descriptor; and

	v.	the expression “permanent functional limitation and restriction …” and/or misdirected itself in law and/or taking into account irrelevant matters and as a result erred in its rejection of the Secretary of State’s descriptor and its selection of the Table 2, Item 11 descriptor.

Lastly, it had erred by selecting a descriptor at level 8 which was perverse and/or unsupported by any evidence.  

9.	The chairman of the tribunal gave permission to appeal and purported to grant the Secretary of State’s application to stay the proceedings until the Upper Tribunal had made its decision in two appeals then before it, as some of the issues raised there were on identical or very similar grounds to those raised in this appeal.  A Registrar of the Upper Tribunal then did stay the proceedings in view of the similarity of the issues in the appeals.  

10.	The Upper Tribunal made its decision on the two appeals in February 2009 and, with its permission, the Secretary of State duly appealed to the Court of Appeal.  In October 2009 the Court of Appeal issued its decision in Secretary of State for Defence v Duncan & McWilliams ([2009] EWCA Civ 1043).  The Secretary of State then made further observations on the Court of Appeal’s decision, submitting that in the light of the judgment the grounds of appeal in this case are maintained.  As a result, the Upper Tribunal is asked to quash the decision of the tribunal and to remit the matter to a freshly constituted First‑tier Tribunal.  

11.	The claimant has responded that he believes that the First‑tier Tribunal’s decision was wholly correct and that the decision in Duncan and McWilliams supports his grounds of appeal.  His corrective surgery in many respects helped the injury, but also involved side effects that are integral to the complexity of the injury, particularly with respect to kneeling, loss of feeling and other effects.  

12.	Further, he submits that his injury should be classified as complex in covering most of the area from knee to ankle because of the retention of the lower distal locking screw of the tibial nail which, on advice, could not be safely removed.  Insertion of the tibial nail involved disruption to the knee cap and he had been told at the outset that he would have long‑term kneeling problems; there were thus restrictions that existed in both the ankle and the knee as shown by the clearer X‑ray photograph he was now able to submit.  He has recently experienced further problems with his knee.

13.	Upper Tribunal Judge Mesher then issued a further direction giving the Secretary of State an opportunity to comment on the claimant’s submission.  In his response the Secretary of State has emphasised in particular that the tribunal had accepted that the three elements of a complex injury must be considered separately, but it had found that the injury was complex because of the therapeutic fixation, scars from the operative procedure and areas of numbness associated with the therapeutic fixation.  It had found that the injury covered the requisite area because of the tibial nail and other clinical findings.  However it is submitted that the tribunal erred in these findings because the insertion of the nail was, rather, beneficial medical treatment and could not form part of what was considered to be the injury.  

14.	Judge Mesher has passed the case to me for decision.  The facts are comparatively straightforward and the tribunal made its decision before the decisions were given by the Upper Tribunal or the Court of Appeal.  It is therefore not to be criticised for the errors which have occurred, although not all the Secretary of State’s grounds of appeal are successful.  I deal with them in turn.

A.	Misapplication or misunderstanding of Table 8:  

15.	Despite the Secretary of State’s continued submission that Table 2 does not apply to a fracture injury “on any sensible view” the Upper Tribunal expressly rejected this argument (indeed at one stage during the oral hearing before the 3 Judge Panel of the Upper Tribunal in respect of Duncan and McWilliams, the Secretary of State appeared to make a concession on this point).  Although the Court of Appeal did not deal with the point expressly, (although see paragraphs 78 and 79) very clearly it accepted that there was no error by the Upper Tribunal and that the fracture injuries of both Corporal Duncan and Marine McWilliams could fall within Table 2.  There is no merit in this ground of appeal.  

B.	Misapplication or misunderstanding of Article 7 of the Scheme:  

16.	Under Article 7 of the Scheme, benefit is paid by reason of an injury caused by service. It is submitted on behalf of the Secretary of State that, in its assessment of the injury caused by service, the tribunal erred in focusing on the claimant’s overall condition at the date of decision rather than the specific injuries that were sustained.  The claimant suffered two discrete fractures at the time of the accident and the descriptor selected by the Secretary of State in this case fits precisely the injuries sustained at that time.  

17.	The submission was made before the Court of Appeal delivered its judgment.  Under the heading “the date for determining the injury” in paragraphs 47 to 55, Elias LJ, who delivered the leading judgment, with which Keene and Carnwath LLJ agreed, said:

47.	“The Upper Tribunal stated that: 
“As a matter of principle the starting point for all descriptors can only be the claimant’s overall condition as at the date of the decision on the claim.”
	……..
Ms Lieven QC, counsel for the Secretary of State……. fully accepts that the decision maker must take account of all the evidence available to him or her when determining the nature and gravity of the injury. 
48.	There can be no doubt that this is the correct approach. Many of the descriptors require the decision maker to make an assessment of the trajectory of the injury.  They may need to assess how long a limitation or restriction will last, or what medical treatment has been or is likely to be given. For example the descriptor changes where an injury leads to an amputation.   It would be absurd if the Tribunal knew at the date of the decision that there had been an amputation but had to ignore that fact on the basis that this was not anticipated at the date of the injury. Moreover, sometimes it will not be possible to make any sensible assessment of the injury at the time it occurs; the full significance of the consequences will only emerge gradually over time.  Any decision maker should make the assessment on the best evidence, and that is the most up to date information available at the date of the hearing. This is sometimes known as the Bwllfa principle, after the case of that name, Bwllfa and Merthyr Dare Steam Collieries (1891) Limited v Pontypridd Waterworks Company [1903] AC 426.  As it is sometimes put, why gaze into the crystal ball when you can read the book?
…………
50.	I confess that I have difficulty understanding why the Secretary of State remains so concerned about the Upper Tribunal’s observations on this matter. As to the first objection, I agree that the term “condition” was perhaps unfortunate because it might suggest that the decision maker should consider the person’s state of health as at the date of the decision.  In that case it would indeed follow, as the Secretary of State says, that if the person had fully recovered there would be no extant injury and no compensation payable. Plainly, however, that is not what the Upper Tribunal intended to suggest when using that term. I think they meant no more than that all relevant evidence actually before the tribunal should be considered when assessing which injuries were caused by service, and what their actual and likely trajectories were.  
51.	Second, although no doubt in the overwhelming majority of cases the focus will be on the initiating injury, that is not the only injury which is compensatable under the Scheme. The Upper Tribunal is envisaging circumstances where there are other injuries which can also properly be said to have been caused by service, notwithstanding that they may arise at some later date after the initial injury. Accordingly, it is only if the Secretary of State is saying that in law no later injuries could be said to be linked to the initial injury that this approach could be criticised. This raises what is perhaps the most important question in this appeal, namely whether additional injuries resulting from medical treatment can be the subject of compensation under the Scheme.  I consider that more fully below.
52.	      Nor do I find the concept of objective and subjective considerations helpful or relevant. Ms Lieven stressed that the emphasis in the scheme is on impairment rather than disablement, and that the latter is more subjective. I accept that there is a degree of objectivity about the way the scheme works. For example, somebody who loses a finger may suffer particularly harshly if they greatly enjoy playing the piano, and even more so if they hope to do so for a living. They would not under this scheme receive any additional sum because of those adverse consequences personal to their particular circumstances. 
53.	      At the same time it is obviously the particular trajectory of the individual service man or woman’s injury that must be considered. Some individuals will recover from an injury more quickly than others, and that will affect the trajectory of the injury. The decision maker simply has to focus on those aspects of the injury which are relevant to determining the appropriate descriptor.
54.	       In any event, I do not see why it should begin to follow that the Upper Tribunal’s approach to the date when the relevant facts should be determined and assessed necessarily involves in some way altering the criteria for determining which descriptor is appropriate.
55.	       As to the final submission, there will, I accept, be certain arbitrary distinctions that necessarily result from the fact that claims can be made at various points in the trajectory of an injury.  Where the claim is made later - perhaps towards the end of the five years - rather than earlier, then almost inevitably the decision maker will have much more concrete medical and other material available when assessing the trajectory of the injury than he will have where the decision is taken relatively soon after the injury occurred. It is therefore possible that two similarly placed individuals will receive different levels of compensation because one award is based on speculating what the trajectory is likely to be whilst the other is based on how it has in fact materialised. But that is a consequence of adopting a scheme which enables service men and women to pursue their claim quickly, and whilst they are still in service.  Any stark injustice can be avoided because in an exceptional case even the final award can be reopened where further injuries unexpectedly develop.”  
In the light of its findings, the tribunal did not err in its approach of making its assessment of the claimant's injury and “its trajectory” by taking into account the relevant evidence as at the date of the decision.  
18.	The Secretary of State further submitted under this ground of appeal that:

“….the descriptors describe the types of injury caused by service, not the condition or all symptoms experienced at the date of decision.  The tibial nail was not part of the injury, but instead was beneficial medical treatment.  Medical treatment cannot form part of the injury.” (page 102)

Elias LJ said:

	“67.	I agree, therefore, that the mere application of proper and appropriate medical treatment, including surgical intervention, cannot of itself constitute an independent injury.  Nor can it render more severe the initiating injury, for example, by extending the coverage of a complex injury so as to attract a higher level of award.
68.	 It follows, therefore, that, in my view the Upper Tribunal was wrong to say that the insertion of the intramedullary nail, a perfectly proper and appropriate treatment for the broken femur, was of itself capable of converting the initial injury in the case of either of these respondents into a more serious one, solely on the grounds that it extended the range of the initial injury.  The cure did not compound the injury”.

The tribunal therefore erred in treating the insertion of the tibial nail as being part of the injury for the purpose of assigning the appropriate descriptor.  

19.	Nonetheless, Elias, LJ continued:

“69.	However, not all medical treatment is risk free. Frequently, there are risks that quite independent illness or injury may result from carrying out perfectly proper medical treatment. If the risk materialises, however likely or unlikely that may be, then in my judgment, the consequential injury is referable to the original injury in service and there is no break in the chain of causation. Article 11(a)(iii) is not engaged in these circumstances. I can see no justification for failing to compensate separately for such injuries, save in those exceptional circumstances where the descriptor itself has taken account of them.  For example, in Table 8 it is expressly provided in the notes that the award includes compensation for any consequential osteoarthritis.
70.	 So in the case of Corporal Duncan for example, there was calcification which caused damage to his knee and hip. Ms Lieven suggested in argument that this was a direct consequence of the initial injury and not the medical treatment. However, if that is right, there can in my view be no basis at all for denying compensation with respect to those injuries since there is manifestly no break in causation at all. But assuming that the calcification does result from the medical treatment in some way, then I see no basis for denying compensation for those additional injuries. It is not inherent in the medical treatment itself that this injury will be caused, but it was entirely foreseeable in that there was always a risk that it might result as a consequence of the treatment of the original injury. 
71.	      I recognise that there will be cases where the consideration of the additional injury will create a difficult problem of classification for the decision makers. They may have to decide whether it is appropriate to treat the injury as a separate one or as a composite injury arising out of a single process. If the latter - as I suspect would usually be appropriate - then there may be issues as to whether the area of the original injury has been extended by the fresh injury. These, however, are going to be issues which are fact-sensitive and can best be determined by those who have the expertise in the First Tier Tribunal.”
Thus, despite the error in taking into account the insertion of the tibial nail itself, there would be no error in taking into account the effect of the nail’s continued presence in the assessment of the trajectory of the claimant’s injury – see paragraph 71 of the Court of Appeal decision.  The tribunal did not split these two aspects because, on its reasoning, there was no need to do so.  The new tribunal will need to consider the effect of the continued presence of the nail and its fixing screws to which the claimant refers in his final submission (page 146).  He may wish to consider whether it is appropriate to submit further medical evidence relating to his asserted problems.

C.	Misapplication or misunderstanding of “complex injury”.  
20.	It is submitted that the tribunal erred in law by concluding that the claimant had suffered a “complex injury”, defined as an injury that affects all or most of the following structures: skin, subcutaneous tissues, muscle, bone, blood vessels and nerves.  The Secretary of State’s submission adds that it is clear that the claimant’s initiating injuries, the two fractures, could not fall within this definition and that the two small areas of numbness and scars of minimal cosmetic effect as a result of the operative procedures was not sufficient to categorise the claimant’s injuries as complex.  At paragraph 80 of his judgement Elias LJ stated:
“As to the submission that it must be the initiating injury which is the complex injury, I disagree. That will depend upon whether the decision maker can properly treat the original injury and any subsequent injuries which are to be attributed to service as being a single injury or two distinct ones. If the decision is that they should be treated as a single injury then there is no reason in principle why the second injury could not, in an appropriate case, change the characterisation of an injury to a complex injury. Having said that, I agree that this is likely to be very exceptional because appropriate surgery itself cannot, in my view, constitute a relevant subsequent injury. 
The items identified by the tribunal may count as consequences of the treatment, following paragraph 69 of Elias LJ’s judgment, and there is also the continuing problem with the screw at the ankle but this will be a matter of fact for the new tribunal.  The tribunal erred in treating the insertion of the tibial nail as satisfying the criteria for complex injury.  Given that the insertion itself cannot be taken into account, the claimant may have a harder task to establish that his injuries satisfy the criteria for complex injury, but this will also be a matter for the new tribunal.  

D.	Misapplication or misunderstanding of “Injury covering all or most of the area from knee to ankle”.  

21.	It is submitted on behalf of the Secretary of State that the tribunal’s finding that the injury covered all or most of the area from knee to ankle was unsupported by any evidence.  The Secretary of State submits that it is the injury itself, not the effects of the injury which must ‘cover the specified area’.  This is correct insofar as the effects of the injury fall within the categories identified by Elias LJ in paragraph 67 of his judgment.  However his paragraph 69 must also apply in respect of “covering”, where appropriate. 

22.	The Secretary of State further submits that ‘covering should be an external injury, not only an internal injury’.  On this Elias LJ said:  

	“87.	Second, I do not accept that the natural meaning of the word ‘covering’ does, in the context in which it occurs here, necessarily import the requirement that the injury must embrace the surface area.  I see no reason why the word should not quite naturally mean that the injury should simply embrace the area from thigh to knee, or knee to ankle, as the case may be, whether visible on the surface or not.  Indeed, it is not obvious why a descriptor should require the injury to be visible, save perhaps where there is compensation for the cosmetic result.  

	88.	Finally, I think the Upper Tribunal was justified in having regard to the definition of ‘complex injury’ when construing the word ‘covering’.  It is not decisive of the meaning, but in my judgment it does lend support to the construction adopted by the Upper Tribunal, particularly since the concepts are generally found together.”

This ground of appeal cannot succeed.

23.	It must of course be remembered that the definition of covering has been changed in the legislation and what is said here pertains only to the position prior to 16 September 2008 when the Armed Forces and Reserve Forces (Compensation Scheme) (Amendment No. 2) Order 2008 came into force.  

24.	Although not referred to by the Secretary of State, the tribunal concluded its findings of fact by recording:

	“We also accept the evidence of the X‑ray photograph attached to this decision, which shows the extent of the injury.”

That finding is not referred to in the reasons for decision, and it will be for the new tribunal, assisted by the much clearer X‑ray photograph which has now been produced, to make its own findings on this with reference to “covering”.  

E.	Misapplication or misunderstanding of “permanent functional limitation and restriction”. 

25.	The submission on behalf of the Secretary of State is that the tribunal gave no valid reasons as to why it rejected the clear clinical findings in the medical reports and that it had failed to accord the correct weight to the medical report of 18 September 2006, almost exactly six months after the claimant's injury, which concluded that he had made a full recovery and had “no residual functional limitations.”  The tribunal’s conclusion is described as perverse in this regard and it is noted that the claimant has made a return to active duty and resumed recreational skiing.  Thus, it is submitted, he has suffered no permanent functional limitation or restriction.  

26.	The tribunal made nine findings arising from the medical examination of the claimant’s lower limbs, and in the reasons for its decision referred to five of those findings as causing him problems.  The Secretary of State has submitted that it is perverse, in particular, to suggest that small areas of numbness on the ankle and knee which cannot be verified can amount to a permanent functional limitation or restriction.  He has made no comment on the 5% restriction on squatting on the right knee and kneeling with pain in the right knee nor to some clicking and local tenderness over the steel screw on the right ankle and that screw being palpable.  At paragraph 93, Elias LJ said:

	“In my judgment, the Upper Tribunal was entitled to use the concept of ‘more than trivial’ to describe a point at which compensation would be payable for a restriction or limitation.  [Counsel for the claimants] submitted that in practice this would be no different to the concept of a moderate limitation or restriction.  I tend to agree.  In a practical jurisprudence of the kind in issue here, I can see no sensible distinction between a limitation which is more than trivial and one which is moderate.  I recognise that it may be said that since where that epithet is not specifically adopted, this should not be read into the descriptor.  However, I do not think that a practical scheme intended to work broad justice could have been intended to draw such fine and difficult distinctions as that between moderate and non‑trivial effect.  I think they essentially cover the same degree of functional impairment.  However, if the intention is to differentiate more finely than I am suggesting, this is an issue which may be clarified when the scheme is reviewed.”

I do not consider the tribunal’s decision on this point can be characterised as perverse, especially as the tribunal recorded in its findings of fact (page 82) that:

“We have noted the facts/findings of the reports and medical notes dated 21 January 2006 and 18 September 2006, however these do not include detailed clinical findings addressing the issues relevant to assessment under the AFCS and in particular we disagree with the conclusion in the report of 18/9/06 that indicates the injuries have resolved with no residual functional limitation and that a full recovery has been made on the basis of our member’s clinical findings.”

It will again be for the new tribunal to assess whether those problems amount to permanent functional limitation or restriction in the light of the Duncan and McWilliams decision should the issue arise in connection with the descriptors it is considering as appropriate to the claimant's injuries.  It is no doubt deeply disappointing to the claimant that he is not able to continue competitive skiing.  Unfortunately that is not to be taken into account, see what was said by Elias LJ at paragraph 52 of his judgment, repeated at paragraph 17 above.

F.	The selection of a descriptor at level 8 was perverse and/or unsupported by any evidence:  
27.	Under this ground of appeal the Secretary of State returns to, and somewhat amplifies, his earlier arguments.  He submits that two fractures sustained by the claimant are injuries properly described by descriptors from Table 8, namely fractures.  The tribunal in rejecting these descriptors and selecting a Table 2 descriptor failed to check its decision by reference to the level of other items in the Tariff at level 8 such as the awards made to those who suffer the loss of a foot or have a diagnosis of a permanent mental disorder causing severe functional limitation and restriction.  It is submitted at this juncture that the tribunal should have construed against this result by giving “covering” (a) its natural and intended meaning of being physically contiguous and (b) determining that it is the original injury which must be considered when applying the meaning of ‘covering’ and ‘complex injury’ not the effects of medical treatments and other consequential effects.  
28.	On the question of cross referencing, Elias LJ had this to say:
“57.	A related issue also considered by the Upper Tribunal is whether it is appropriate or legitimate to cross refer to other parts of the Scheme when determining the appropriate descriptor. The Upper Tribunal did not think that there was much room for cross references although they did not exclude it entirely.  The Secretary of State submitted that this was an error.  I do not agree.  The whole purpose of the scheme is to fix sums by quite detailed and precise rules which can be readily interpreted at the first stage by laymen.  The appropriate descriptor will in many cases be relatively easy to determine and where that is so there will be no purpose, and indeed no justification, in looking further. 
58.	That is not to say, however, that the decision maker is forbidden from cross referring in an appropriate case. It is impossible to be prescriptive about when this might be helpful, but examples can be envisaged.  There may perhaps be two possible contesting descriptors which might be thought to capture a particular injury but are at different levels.  Some light might be shed on which is the more appropriate by looking at other injuries which result in the same financial awards and seeing if they make the choice any clearer.  I suspect that usually they will not but nonetheless I have no doubt that it is a legitimate exercise for the decision maker to undertake.”
I do not consider the tribunal’s failure to cross reference amounted to an error of law.  The new tribunal will be free to do so should it consider it helpful within the tenor of Elias LJ’s observations.
29.	 The Order in its original 2005 version makes no mention of the word “contiguous”, which was introduced by the Armed Forces and Reserve Forces (Compensation Scheme) (Amendment No. 2) Order 2008.  In its decision the Upper Tribunal recorded that the submission on behalf of the Secretary of State was that:

“covering” in Table 2 means “covering and affecting” the relevant area; the intention being, in the case of injuries to the limbs, to restrict the application of the relevant descriptors to injuries which directly affect most of the area of the skin in the specified part of the limb, such as de-gloving injuries or perhaps to abrasions or lacerations covering most of that area.  In the later hearing [Counsel for the Secretary of State] submitted that the effects must be contiguous.  In support of this restrictive meaning, as can be seen from the Item descriptions set out above, “covering” is associated with “area” (ie “Complex injury covering all or most of the area from …”).  Furthermore, some dictionary definitions are supportive; one of the Oxford Shorter English Dictionary definitions is “occur here and there over the whole surface of”.  However, in our judgment this submission cannot be correct when viewed in the overall context of Table 2.”  

The word “contiguous” is not mentioned in Elias LJ’s judgment; what is said in the Upper Tribunal’s decision reflects the position.  There is no reason why the tribunal should have considered any further the contiguity of the injuries in connection with the application of the Order.  I have already dealt with the question of the original injury as raised under  the second ground of appeal.

30.	In the light of the decisions of the Upper Tribunal and the Court of Appeal, which it could not have anticipated, the tribunal has erred in law in the areas I have accepted above.  It is no doubt disappointing to the claimant that I am not able to substitute my own decision, but in the light of the nature of the errors of law by the tribunal and the greater clarification following the decisions of the Upper Tribunal and the Court of Appeal in the Duncan and McWilliams cases, there are further facts to be found which would be more appropriately dealt with by a fact‑finding tribunal which includes a medical member.  

DIRECTIONS:

31.	 A differently constituted War Pensions and Armed Forces Compensation Chamber must hold an oral hearing and conduct a complete reconsideration of the issues that arise for decision in this appeal.  

32.	The claimant thus far has, in effect, represented himself, although he did at one stage refer to a representative.  He may wish to reconsider whether he would be assisted by seeking representation from one of the bodies which supports Service personnel in their applications for compensation.  He is advised to attend the new hearing again if at all possible.  

33.	The claimant is advised to send any further medical evidence he wishes to submit to War Pensions and Armed Forces Compensation Chamber at Fox Court as soon as possible, retaining a copy for his own use at the tribunal. 

34.	The claimant will bear in mind that my decision is limited to matters of law; the new tribunal will make its decision on the evidence before it and the outcome may not be different or may be more or less helpful to him than the decision of the previous tribunal.  

35.	For the reasons stated, the appeal by the Secretary of State succeeds.  As further findings of fact are necessary, I am not in a position to remake the decision under section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007 and I remit the appeal for reconsideration.  

				(Signed on the Original)
								E A Jupp
								Judge of the Upper Tribunal

								31 August 2010