Secretary of State for Defence v HM: [2024] UKUT 395 (AAC)
Upper Tribunal Administrative Appeals Chamber decision by Judge Church on 3 December 2024.
Read the full decision in .
Judicial Summary
This decision considers the proper interpretation of, and approach to, Article 11 of the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011. In particular, it considers:
• when Article 11 must be considered by a tribunal, and
• where an injury was sustained or worsened by participation in sporting activity, what is required to fall within the exceptions in Article 11(6) to the exclusion of benefit in Article 11(5).
It decides that the sport of rugby has been “approved” by the Defence Council for the purposes of Article 11(6)(a) but subject to conditions, including that involvement in civilian rugby is at the participant’s own risk and must be done in the participant’s own time. Therefore, while participation in civilian rugby is not prohibited, the Defence Council’s approval of the sport of rugby for the purposes of Article 11(6)(a) of the AFCS Order does not extend to civilian (including civilian charity) rugby.
It decides that the requirement in Article 11(6)(a) that a sporting event and the organisation and training for it be “recognised” by the relevant Service prior to the event requires more than simply an acknowledgement of the awareness by someone in the chain of command that the event will occur and may require training, and that clinical advice on injury management given by a medical officer in the course of medical appointments is incapable of amounting to recognition by the Service for the purposes of Article 11(6)(a).
It decides that while a one-off civilian charity rugby match may provide some benefit in terms of maintaining physical fitness, such a benefit is merely incidental: its purpose is to raise funds for charity and to raise the charity’s profile, rather than to meet or maintain physical standards required of members of the forces, and it does not satisfy the requirements for the exception in Article 11(6)(b) to apply. SM v SSD [2018] AACR 4 followed.