GA v Secretary of State for Defence

The decision of the Upper Tribunal is to ALLOW the appeal. (1) The decision of the First-tier Tribunal, taken on 14 October 2024 under case reference AFCS/509/2023, involved errors on a point of law. Under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007, the Upper Tribunal sets aside the First-tier Tribunal’s decision. (2) Under section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007, the Upper Tribunal remits this matter to the First-tier Tribunal, and directs as follows: (a) GA’s appeal against the Secretary of State for Defence’s decision under the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011 (taken on 8 November 2023 and reviewed on 23 November 2023) is to be re-decided by a panel of the First-tier Tribunal that does not include any person who was part of the panel whose decision the Upper Tribunal has set aside; (b) unless within one month of the date on which this decision is issued the First-tier Tribunal receives GA’s written request that his appeal against the Secretary of State’s decision be decided on the papers, the Tribunal must hold a hearing before re-deciding GA’s appeal; (c) within one month of the date on which this decision is issued, the First-tier Tribunal must receive from the Secretary of State a written submission which sets out the Secretary of State’s opinion as to the nature of the worsening of GA’s injury; (d) if the Secretary of State wishes to maintain his reliance on the Lancet report of a clinical study into adult survivors of developmental trauma referred to below (see paragraph 11 of the reasons for this decision), within one month of the date on which the decision is issued the First-tier Tribunal must receive from the Secretary of State: (i) a copy of the report; and (ii) a written submission setting out why, in the Secretary of State’s opinion, the report is relevant to GA’s circumstances; (e) if either party wishes to rely on any further written submissions or evidence, they must be received by the First-tier Tribunal no later than one month after the date on which this decision is issued. Directions 2(b) to 2(e) above may be varied by direction given by the First-tier Tribunal. REASONS FOR DECISION Terminology

1. In these reasons: – “2011 Order” means the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011; – “GA” refers to the Appellant. Factual Background

2. On 5 October 2022, a decision was made to award GA compensation under the 2011 Order. For the purposes of that award, GA’s injury was found to satisfy the descriptor in item 3, Table 3 in Part 1 of Schedule 3 to the 2011 Order – “mental disorder, causing functional limitation or restriction, which has continued, or is expected to continue, for 5 years”. That descriptor attracts a level 10 award under the 2011 Order’s tariff of award amounts. GA appealed against that decision, but his appeal was unsuccessful.

3. On 31 August 2023, GA requested a review under article 56 of the 2011 Order. The review left GA’s award unchanged (initial decision: 8 November 2023; review decision: 23 November 2023).

4. GA appealed to the First-tier Tribunal against the review decision. First-tier Tribunal’s decision

5. The Secretary of State accepted that GA’s injury had become worse (first article 56(3) condition: see Legal Framework below). This meant that the issues for determination on GA’s appeal to the First-tier Tribunal were: (a) whether the worsening was “unexpected and exceptional” (second article 56(3) condition); and (b) if so, whether GA’s injury satisfied a descriptor at a higher tariff level than that awarded under the 5 October 2022 decision.

6. The First-tier Tribunal determined that the worsening of GA’s injury was neither unexpected nor exceptional for two reasons.

7. Firstly, the First-tier Tribunal found that, since GA had not completed his treatment, “the worsening was not unexpected, nor exceptional”. The Tribunal relied here on medical advisor opinions found at pages 415, 426 and 439 of the First-tier Tribunal bundle, stating that “there was no evidence to counter the medical advisor’s opinions to this effect”. The medical opinions referred to were: (a) the document at p.415, which was a medical opinion (not the report of a clinical assessment) given on 16 July 2024 by “Dr B” whom I presume was a Veterans Agency medical adviser, and included the following: “…the natural course of complex PTSD is one of relapse and remissions. Vulnerability to relapse is increased if past treatment has been absent or incomplete. Prior to the worsening of his illness, the claimant had not completed a full course of trauma focussed therapy…Therefore I would advise that the worsening is not unexpected or exceptional under those circumstances”. That opinion was based on findings of the First-tier Tribunal that, in August 2023, dismissed GA’s appeal against his initial award decision and “evidence from his therapist confirming incomplete therapy…dated 14 October 2022”; (b) the document at p.426, which the Tribunal said included a medical opinion but was unfortunately absent from the bundle supplied to the Upper Tribunal; (c) p.439 contained another medical opinion provided by “Dr B”, on 9 September 2024, which stated “a summary of attendances since October 2023…included some EMDR sessions up to 6 January 2023 but the claimant subsequently requested to discontinue therapy and was informed that he could be re-referred to the service if required”.

8. When granting permission to appeal against the First-tier Tribunal’s decision. I gave directions requiring supply of the document at p.426 of the Tribunal’s bundle. The document was duly supplied and contained the following further opinion of “Dr B”: “I note the further medical advice provided, specifically a letter dated 9 July 2024 from his NHS Consultant Psychiatrist and a letter dated 21 June 2024 from his social worker. Both describe ongoing treatment and functional limitation. The psychiatrist comments that, “If [GA] had not previously engaged in psychological intervention(s) then it would have been possible to say that there is scope for improvement, he has however participated in both cognitive behavioural therapy and EMDR for previous traumas with limited success. Unfortunately, therefore it is highly unlikely that there will be much change in his presentation in the future.” As stated in my previous advice this is not consistent with the contemporaneous therapy notes dated 14 October 2022 (Doc 845) which indicate that he chose not to complete the recommended therapy. Neither, is it consistent with the finding of the First Tier Tribunal in August 2023 that the claimant had not completed a full course of trauma focused therapy (Doc 1225 paras 70-75). The claimant’s clinical presentation includes hallucinations, paranoia and depersonalisation. This degree of worsening is severe, but not unexpected or exceptional given that his treatment was incomplete at the time of onset. The further medical evidence does not alter my previous advice (dated 15 July 2024).”

9. The second reason why the First-tier Tribunal found that GA’s worsening was neither unexpected nor exceptional was because a February 2024 report of Dr Beaini, psychiatrist, “considered there was a significant association (p.364) between complex PTSD and psychosis” and “consequently, the Tribunal judged that the Appellant’s subsequent psychotic episodes were not unexpected nor exceptional given the appellant’s history (see para 1.q above), his complex PTSD and the stressors he was undergoing as part of his claim (see paras 1.k and 1.q), his unsuccessful Tribunal hearing in August 2023 and his ongoing appeal”. To put that finding in context, I need to describe other evidence before the Tribunal: (a) p.364 of the bundle appears to contain Dr Beaini’s handwritten extracts from an article/s in The Lancet about research into PTSD with the heading Associations between post-traumatic stress disorders and psychotic symptom severity in adult survivors of developmental trauma. Dr Baeani’s handwritten statements included “it is possible that post traumatic stress disorders are modifiable risk factors for psychosis in people who have experienced developmental trauma” and “a significant association between complex PTSD and psychotic symptom severity was found”. I am not a medical expert, but I am confident that ‘developmental trauma’ refers to the adverse effect on human brain development of a child who experiences significant parental neglect and/or abuse. If there is any doubt, it is surely dispelled by the article heading’s reference to ‘adult survivors’ of developmental trauma; (b) GA’s ‘history’ in paragraph 1.q of the Tribunal’s reasons included auditory and visual hallucinations. Paragraph 1.k referred to a medical opinion that GA’s low mood was ‘likely exacerbated by the recent stressors in his life’.

10. The First-tier Tribunal’s analysis of the third article 56(3) condition was directed at the requirement in the higher tariff awards for “permanent mental disorder”. The Tribunal referred to GA not having completed EMDR treatment, an increase in the dosage of his anti-psychotic medication, and six months of weekly therapy sessions with a mental health nurse. In paragraph 1.n of the Tribunal’s reasons, it found that GA “had now been discharged from [these sessions] and they did not recommend further treatment”. Relying on those ‘circumstances’, the Tribunal found that “it could not be said that the appellant had received appropriate clinical management of adequate duration nor that the appellant’s injury had reached steady or stable rate at maximum medical improvement and/or that no further improvement was necessary”. Grounds of appeal

11. The Upper Tribunal’s determination granting GA permission to appeal against the First-tier Tribunal’s decision read as follows: “16. Arguably, the First-tier Tribunal’s determination that the worsening of [GA’s] injury was neither unexpected nor exceptional involved the following errors on points of law: (a) while worsening was accepted, the Tribunal’s reasons do not set out the nature of that worsening. It referred, in paragraph 1.q, to Dr Barbir’s opinion that it included psychotic episodes but then went on to cast doubt on whether that really was a worsening in the light of [GA’s] medical history. So, what had got worse? The Tribunal proceeded on the basis that something had. However, without identifying what it was the Tribunal was arguably unable to give adequate reasons for its finding that the worsening was neither unexpected nor exceptional. The Tribunal seemed to say that [GA’s] worsening was to be expected because he did not complete EMDR therapy but did not go on to explain why not completing that therapy meant a worsening, whether in the form of psychosis or something else, was to be expected. Arguably, the absence of a reasonably clear description of the GA’s worsening left GA unable to understand why the Tribunal decided that his worsening was neither exceptional nor unexpected; (b) the Tribunal appears to have considered the non-completion of treatment to be incompatible with unexpected or exceptional worsening. Arguably, that was a legal misdirection because it betrayed an assumption that it is impossible for an injury to worsen unexpectedly or exceptionally if treatment has not been completed. The 2011 Order does not deem incomplete treatment to be incompatible with unexpected or exceptional worsening of an injury. The Tribunal’s approach is also arguably inconsistent with article 56(4)’s requirement for a review application to be “made within the period of 1 year starting on the day on which the worsening or the development began”. There must be some cases where treatment programmes will last beyond a year so that the service member has to seek an article 56 review before treatment is competed but, on the Tribunal’s apparent approach, such a review would be bound to fail; (c) the Tribunal relied on an association between complex PTSD and psychosis. It seemed to be saying that the latter was to be expected in cases of the former. However, the Tribunal relied, via Dr Beaini, on a clinical study into adult survivors of developmental trauma. GA was obviously not raised by the armed forces so why was this reported study relevant? Arguably, the Tribunal erred in law by taking an irrelevant consideration into account and/or failing adequately to explain the relevance of the clinical study referred to by Dr Beaini. I am also concerned about the fairness of introducing evidence, in the form of a reported clinical study, by way of a clinician’s handwritten extracts / summary of the study’s conclusions. Arguably, fairness required the actual Lancet article to be introduced in evidence if it were to be relied on by the Veterans Agency and, in turn, the Tribunal.

17. Assuming the First-tier Tribunal’s analysis of the second article 56(3) condition was flawed, this would not matter (not make a difference) if its approach to the third condition was free of legal error. This is because article 56(3)’s requirements are cumulative. However, the Tribunal also arguably erred in law in rejecting [GA’s] argument that his worsening justified a higher tariff award. The Tribunal focussed on the requirement for a permanent mental disorder and seemed to find that [GA] could not have a permanent mental disorder when his condition had not reached a steady or stable rate ‘at maximum medical improvement’. The finding was partly based on [GA] having completed six months of mental health therapy from which he was discharged without a recommendation for further treatment. Surely, this was a factor that tended to show that further improvement was not expected. Arguably, the Tribunal erred in law by taking into account an irrelevant consideration and / or by giving inadequate reasons for its decision.” Legal framework

12. Article 56 of the 2011 Order provides for review of an injury benefit decision. The Secretary of State must review a decision if an application for a review is made in accordance with article 56(4) (article 56(1)) although a decision may only be reviewed once under article 56 (article 56(6)).

13. Article 56(4) requires an application for review to be “made within the period of 1 year starting on the day on which the worsening…began”. Assuming an application for review satisfies that requirement, the circumstances in which an injury benefit decision may be revised on review are provided for in article 56(3) as follows: “(3) An award may be revised only where within the period of 10 years, starting with the date of the injury benefit decision, the injury in respect of which the decision relates has— (a) become worse…; (b) the worsening…is unexpected and exceptional; and (c) the injury…is described by— (i) a descriptor at a tariff level which is higher than that already awarded for the injury…”.

14. The word “and” at the end of article 56(3)(b) indicates that these are cumulative requirements. All must be satisfied.

15. I have already set out the item 3/level 10 descriptor in Table 3 of Schedule 3 to the 2011 Order (see paragraph 2 above). The preceding descriptors in Table 3 describe more serious injuries: (a) item 2 is “Permanent mental disorder, causing moderate functional limitation or restriction”, and attracts a level 8 award; (b) item 1 is “Permanent mental disorder, causing severe functional limitation or restriction”, and attracts a level 6 award; (c) item A1 is “Permanent mental disorder causing very severe functional limitation or restriction”, and attracts a level 4 award.

16. Certain terms used in Table 3 have the following meanings assigned by the 2011 Order: (a) “permanent” is defined by article 5(7)(b): “Functional limitation or restriction is— (a) “permanent” where following appropriate clinical management of adequate duration— (i) an injury has reached steady or stable state at maximum medical improvement; and (ii) no further improvement is expected…” (b) functional limitation or restriction is moderate “where the claimant is unable to undertake work appropriate to experience, qualifications and skills at the time of onset of the illness but able to work regularly in a less demanding job” (Table 3, footnote (b)); (c) functional limitation or restriction is severe “where the claimant is unable to undertake work appropriate to experience, qualifications and skills at the time of onset of the illness and over time able to work only in less demanding jobs” (Table 3, footnote (a)); (d) functional limitation or restriction is very severe where “the claimant’s residual functional impairment after undertaking adequate courses of best practice treatment, including specialist tertiary interventions, is judged by the senior treating consultant psychiatrist to remain incompatible with any paid employment until state pension age” (Table 3, footnote (aa)); (e) “functional limitation or restriction” means: “that, as a result of an impairment arising from the primary injury or its effects, a person— (a) has difficulty in executing a task or action; or (b) is required to avoid a task or action because of the risk of recurrence, delayed recovery, or injury to self or others.” (article 5(3)); (f) article 5(6) provides: “Functional limitation or restriction is to be assessed by— (a) taking account of the primary injury and its effects; and (b) making a comparison between the limitation and restriction of the claimant and the capacity of a healthy person of the same age and sex who is not injured or suffering a health condition.” Arguments Secretary of State

17. The Secretary of State supports this appeal. His representative informs the Upper Tribunal that the Secretary of State accepts that the First-tier Tribunal erred in law as described in the grounds of appeal.

18. The Secretary of State invites the Upper Tribunal to set aside the First-tier Tribunal’s decision and remit this matter to a differently constituted tribunal panel for re-determination of GA’s appeal against the Secretary of State’s decision. Appellant

19. GA’s reply to the Secretary of State’s response to this appeal, drafted by his representative, explains why he considers that he is entitled to an ‘upgraded award’ under the 2011 Order. I do not set out GA’s arguments here but they will be before the First-tier Tribunal which redetermines GA’s appeal against the Secretary of State’s decision.

20. Subsequently, in January 2026, GA emailed the Upper Tribunal stating that he was “very concerned” that the Upper Tribunal might remit this matter to the First-tier Tribunal rather than re-decide GA’s appeal against the Secretary of State’s decision. GA argues that he has received “fundamentally unfair treatment” from the First-tier Tribunal so that it would be wrong for it to redetermine his appeal, and that there is sufficient evidence before the Upper Tribunal for it to decide GA’s appeal against the Secretary of State’s article 56 decision. Analysis

21. Neither party requests a hearing before the Upper Tribunal decides this appeal. I agree that a hearing is not required before deciding this supported appeal.

22. I decide that the First-tier Tribunal’s decision involved the errors on points of law set out in the grounds on which permission to appeal was granted.

23. I am sorry, but I cannot accede to GA’s request that the Upper Tribunal decides his appeal against the Secretary of State’s article 56 decision. The issues that arise for determination include medical questions that I am simply not equipped to decide. For example, I do not have the expertise required to make sound determinations as to the nature of the worsening of GA’s injury and whether that worsening is unexpected and exceptional. By contrast, the First-tier Tribunal does have the necessary medical expertise. I know that this will be a disappointment to GA, but I am not professionally competent justly to decide his appeal against the Secretary of State’s decision. If I were to attempt to do so, there is a good chance that the Secretary of State would mount a successful appeal against my decision, and GA would face even more delay in the resolution of his appeal against the Secretary of State’s decision.

24. However, I have given directions to the First-tier Tribunal designed to allay at least some of GA’s concerns, including directions that an entirely new panel is to redecide his appeal and directions about the way in which the Secretary of State is to present his case before the First-tier Tribunal. Conclusion

25. The First-tier Tribunal’s decision involved errors on points of law. I set aside its decision. GA’s appeal against the Secretary of State’s decision on his claim for compensation under the 2011 Order will now be remitted to the First-tier Tribunal for re-determination by a differently constituted panel in accordance with the directions given above. Authorised for issue on 2 February 2026 Upper Tribunal Judge Mitchell