IN THE UPPER TRIBUNAL 	Appeal No: CAF/1511/2012

ADMINISTRATIVE APPEALS CHAMBER

Before: Upper Tribunal Judge Wright 

DECISION 

	The Upper Tribunal disallows the appeal of the appellant.

The decision of the First-tier Tribunal sitting at North Shields on 17 January 2012 under reference SD/00377/2009 did not involve any material error on a point of law and is not set aside.
     
This decision is made under section 11 of the Tribunals Courts and Enforcement Act 2007

REASONS FOR DECISION 

Introduction

1.	This is an appeal by the an ex-serviceman from a decision of the North Shields First-tier Tribunal (War Pensions and Armed Forces Chamber) heard on 17 January 2012 and issued to the parties, with full reasons, on 13 February 2012.  I will refer to this from now on as “the tribunal” and the ex-serviceman as the “appellant”.
 
2.	The substance of the appeal before the tribunal concerned an entitlement decision on a review dated 8 March 2011 of a decision dated 16 May 2002 upon which review the Secretary of State had rejected a claim by the appellant that his alcohol abuse disorder was either attributable to, or aggravated by, service: per Article 40 of the Naval, Military and Air Forces Etc (Disablement and Death) Service Pension Order 2006 (the “SPO 2006”).  Also under appeal to the tribunal was a decision dated 27 November 2008 refusing to review the 16.05.02 decision.  Thus, the decision of 8 March 2011 had reviewed but not changed the 16 May 2002 decision whereas the decision of 27 November 2008 had refused to review the 16 May 2002 decision. In the light of the Upper Tribunal’s decision in Secretary of State for Defence –v- RC [2012] UKUT 229 (AAC); [2013] AACR 4 (in which the appellant had some initial involvement) both decisions, in effect, come to the same result.     

3.	In essence, the issue for the tribunal to decide – and thus for the Upper Tribunal to assess error of law against – is whether the alcohol abuse disorder was either attributable to, or aggravated by, service and thus gave rise to entitlement. If it did not, as the tribunal found, then both decisions under appeal were correct (as was common ground before me).        

Factual background
 
4.	Some further background needs to be explained to flesh out the decision(s) before the tribunal in January 2012.

5.	The appellant served in the Royal Artillery from 13 February 1991 until he was discharged on medical grounds on 22 March 2002. He made a claim for a service pension due to his medical conditions. The main medical problems were (a) recurrent adjustment disorder with mixed anxiety and depressive symptoms, and (b) alcohol abuse. By a decision dated 16 May 2002 the Secretary of State notified the appellant that the condition recurrent adjustment disorder (including mixed anxiety and depressive disorder) was accepted as being attributable to service. However in a decision on the same date the alcohol abuse disorder was not accepted as being attributable to, or made worse by, service.  

6.	Entitlement having been established in respect of the recurrent adjustment disorder, a legally separate decision was made assessing the resultant disablement at 6-14%. This assessment of resultant disablement was later increased on appeal to 20% from 9.06.04.  It was also later accepted that the condition attributable to service should be classified instead as mixed anxiety-depressive disorder. The 20% assessment was later backdated, on appeal, to 23.03.02.   

7.	However, the decision that the alcohol abuse disorder was not attributable to, or made worse by, service was not appealed at the time.  This is important because the effect of this was that any percentage assessment made of the disablement attributable to service then shut out any disablement arising from the alcohol abuse disorder (because it was not (to use a neutral phrase) related to service and therefore the      Secretary of State was not liable to compensate for that disablement under the service pensions order).  It is this, in a sense, that lies at the heart of the appellant’s case, as advanced by his mother, as ultimately his case is that the percentage assessment of his disablement is too low because it does not take account of his alcohol disorder.

8.	A late appeal was lodged on 22 May 2006 against the entitlement decision of 16 May 2002 that the alcohol abuse disorder was not attributable to, or made worse, by service (see pages 13-15 of the Upper  Tribunal bundle)  The decision appealed against was said to be “the refusal of ‘alcohol abuse’ as an attributable disability”. In explaining the lateness of the appeal the appellant described his complaint as being that “the diagnosis of alcohol abuse and its effects should never have been refused”. Picking up on what I have said in the immediately preceding paragraph, this seems to me to run together, or seeks to raise together, entitlement with the assessment of disablement on the entitlement (i.e. the “effects”).  That, however, as we shall see, is not how the relevant legal rules work.

9.	The Pension Appeal Tribunal on 21 December 2012 decided that this appeal could not be brought out of time. That, as is now accepted by the appellant, was a final decision. 

10.	Matters then became very tangled, at least procedurally, when the appellant sought a review of the 16.05.02 entitlement decision on alcohol abuse disorder.  That entanglement, thankfully, is now of no relevance to this appeal as the Secretary of State eventually conceded that there were grounds to review (in the sense of look at again) the 16.05.02 decision (see page 165 of the Upper Tribunal bundle) and did so on 8.03.11, but on review came to the same conclusion. It is by that route that the appeal came before the tribunal on 17.01.12.

The Tribunal’s Decision
 
11.	The tribunal rejected the appeal on two, alternative grounds. It first held that Article 40(1)(a) of the SPO 2006 was not met because: 

“the overwhelming evidence is that service factors were not causative of the appellant consuming excessive alcohol prior to 2001 when it is accepted that his involvement in the foot and mouth epidemic exacerbated both his mental health condition and his alcohol intake.  However, we find that by this time his heavy drinking had become an established prop for the stresses in his personal life”.  

This last sentence was explained by the tribunal referring later on to the High Court’s decisions in Wedderspoon (pp 355-356 of UT bundle) and Monaghan (p 357 of UT bundle), in which the tribunal said a distinction was drawn between cases where service is the cause of an injury or where it is only part of the surrounding circumstances. Where service does no more than provide the opportunity or circumstance in which the cause operated then it is not attributable to service. Mr Justice Denning (as he then was) had said in Monaghan that drinking too much is not attributable to service but is within a person’s personal sphere, and the tribunal saw no reason not to follow this reasoning of a superior court.                       

12.	The tribunal also rejected an argument made on behalf of the appellant that there was a failure to treat his mental health condition and alcohol problems that led to them becoming entrenched. It concluded on this that there had not been a failure by the Services to adequately treat the appellant so as to make alcohol abuse disorder either attributable or aggravated by service.
 
13.	Finally on Article 40 of the SPO 2006, it rejected an argument made on behalf of the appellant based on R(AF)3/09 that service had to be a cause and not the cause of the alcohol problems because in the tribunal’s view on the evidence the appellant had started to drink heavily solely because stresses in his personal sphere and so service had not even been shown to be a cause of the alcohol  abuse disorder.

14.	It therefore concluded for all of these reasons that the Secretary of State had shown beyond reasonable doubt that the alcohol abuse disorder was not due to service factors.   

15.	The second ground for rejecting the appeal was that even if the tribunal was wrong on all of the above and on the question of attributability under Article 40 of the SPO 2006, the effect of paragraph 32 in Schedule 6 to the SPO 2006 was to preclude entitlement. This was because “injury” under Article 40(1)(a) of the SPO 2006, when read with the definition of that word in Schedule 6, paragraph 32, excluded “any injury due to…. the consumption of alcohol”.  In its view the alcohol abuse disorder was the injury, this was any injury due to consumption of alcohol, and it thus it could not count as an “injury” within Article 40.  Moreover, as the percentage assessment for the mixed-anxiety depressive disorder was assessed at less than 50%, the exception to the exclusion in paragraph 32 of Schedule 6 could not apply.     

16.	The appellant’s mother, acting on his behalf, sought permission to appeal against the tribunal’s decision on numerous grounds. Permission was refused in the first instance by Judge Bano, who was then the Chamber President of the First-tier Tribunal.  He held that the findings of the tribunal were not perverse and were fully open to the tribunal on the evidence; that it had found that the appellant had started drinking solely due to factors within his personal sphere and that the Army did not fail to give him adequate treatment; and that therefore the issue of what was meant by “injury” under para. 32 of Schedule 6 to the SPO 2006 did not need to arise. He also said that as the Secretary of State did in fact review the 16.05.02 decision (though didn’t change it), issues as to the legal extent of the review power also did not arise.

17.	However, on 27 June 2012 Upper Tribunal Judge Mesher gave permission to appeal. He did so it seems for two reasons: first, given the tangled history it merited further consideration; second, because he was concerned that the appellant and his mother may not have had sight of an Upper Tribunal decision on which the tribunal had relied (CSAF/493/2010). Judge Mesher then passed the appeal to me to decide. I held an oral hearing of the appeal on 11 April 2013 at which the appellant was represented by his mother (he did not attend) and the Secretary of State by Ms Broadfoot of counsel. I apologise for the lengthy time it has taken me to make this decision.

The Law
 
18.	The relevant law arises under the SPO 2006. The two key parts of it are Article 40 and paragraph 32 of Schedule 6. These provide respectively as follows.

40.—(1) Except where paragraph (2) applies, where, not later than 7 years after the termination of the service of a member of the armed forces, a claim is made in respect of a disablement of that member, or the death occurs of that member and a claim is made (at any time) in respect of that death, such disablement or death, as the case may be, shall be accepted as due to service for the purposes of this Order provided it is certified that— 
(a)the disablement is due to an injury which— 
(i)is attributable to service, or 
(ii)existed before or arose during service and has been and remains aggravated thereby….  
(2) Where a person is entitled to benefit under the 2005 Order in respect of an injury or death, that injury or death shall not be accepted as due to service for the purposes of this Order. 
(3) Subject to the following provision of this article, in no case shall there be an onus on any claimant under this article to prove the fulfilment of the conditions set out in paragraph (1) and the benefit of any reasonable doubt shall be given to the claimant. 
(4) Subject to the following provisions of this article, where an injury which has led to a member’s discharge or death during service was not noted in a medical report made on that member on the commencement of his service, a certificate under paragraph (1) shall be given unless the evidence shows that the conditions set out in that paragraph are not fulfilled….. 
(6) Where there is no note in contemporary official records of a material fact on which the claim is based, other reliable corroborative evidence of that fact may be accepted”. 

32.	“injury”	includes wound or disease but excludes any injury due to— 
(a)
the use or effects of tobacco; or 
(b)
the consumption of alcohol; 
except that paragraph (a) in so far as it relates to the use of tobacco, and paragraph (b) above shall not apply where the person suffers from a mental condition which is attributable to service if— 
(i)
the degree of disablement in respect of that condition has been assessed at 50% or more; and 
(ii)
he started or continued to use tobacco or to consume or continue to consume alcohol due to that condition; 	

19.	    Also relied on by the appellant was Article 42, which so far as is    
                 relevant provides:

“42.—(1) The following provisions of this article shall apply for the purposes of the assessment of the degree of the disablement of a member of the armed forces due to service before 6th April 2005. 
(2) Subject to the following provisions of this article— 
(a)the degree of the disablement due to service of a member of the armed forces shall be assessed by making a comparison between the condition of the member as so disabled and the condition of a normal healthy person of the same age and sex, without taking into account the earning capacity of the member in his disabled condition in his own or any other specific trade or occupation, and without taking into account the effect of any individual factors or extraneous circumstances; 
(b)for the purpose of assessing the degree of disablement due to an injury which existed before or arose during service and has been and remains aggravated thereby— 
(i)in assessing the degree of disablement existing at the date of the termination of the service of the member, account shall be taken of the total disablement due to that injury and existing at that date, and 
(ii)in assessing the degree of disablement existing at any date subsequent to the date of the termination of his service, any increase in the degree of disablement which has occurred since the said date of termination shall only be taken into account in so far as that increase is due to the aggravation by service of that injury; 
(c)where such disablement is due to more than one injury, a composite assessment of the degree of disablement shall be made by reference to the combined effect of all such injuries….. 
(5) The degree of disablement assessed under the foregoing provisions of this article shall be certified by way of a percentage, total disablement being represented by 100 per cent (which shall be the maximum assessment) and a lesser degree being represented by such percentage as bears to 100 per cent the same proportion as the lesser degree of disablement bears to total disablement, so however that a degree of disablement of 20 per cent or more shall be certified at a percentage which is a multiple of 10, and a degree of disablement which is less than 20 per cent shall, except in a case to which Table 1 of Part III of Schedule 1 applies, be certified in a manner suitable for the purposes of Table 2 of Part III of that Schedule”.

Analysis 

20.	Many of the grounds of appeal that had previously been canvassed by the appellant’s mother on his behalf were either not pursued before me or otherwise fell away. For example, no point was taken before me about the extent of the Secretary of State’s review powers, rightly and sensibly in my view because a review decision had been made here. In addition, on examination the perversity points that the appellant had sought to make were either no more than that the tribunal had made the wrong assessment of the available evidence (which is not an error of law), or came down to misdirection of law arguments which I return to below.

CSAF/493/2010

21.	As for the missing CSAF/493/2010 decision, the appellant’s mother has since seen it as has the Secretary of State, who had not seen it either,  (it is on pages 375-378 of the UT bundle), and from that perspective she told me she and her son were done no injustice by not having sight of it before the tribunal made its decision. Although I found it a little difficult to understand why this was the case, in the end it seemed to be because the appellant’s mother considered it was a decision that supported her son’s case on its facts, and therefore the tribunal had, so to speak, done her son a favour by referring to it.  However, CSAF/493/2011 was not relied on by the tribunal for its facts. Moreover, both parties having seen the decision, neither sought to make any arguments to me about the legal effect of CSAF/493/2010 or whether the tribunal had erred in referring to it.

22.	Accordingly, given that sight of the decision beforehand would not have advanced the appellant’s case on the law, given it only played a small part in the tribunal’s analysis, and given neither party sought to rely on not having had prior sight of it as giving rise to a material error of law on the part of the tribunal, I conclude that the tribunal’s failure to refer the parties to the decision in advance did not lead it into any material error of law.

The Scheme as a whole
 
23.	There were three key arguments made by the appellant’s mother on his behalf. All, it seemed to me, were rooted in the fact that the appellant did not consider that the 20% assessment of disablement did not adequately assess the totality of his mental health problems including his alcohol abuse.  

24.	However, looking at the scheme as set out above and in the War Pensions Appeals Act 1943, in my judgment this is based on a fundamentally wrong or back-to-front reading of the statutory scheme, for reasons which I will come to in more detail shortly.  Sections 1 and 5 of the Pension Appeals Tribunals Act 1943 make it clear that, at least for the purposes of this appeal there are two key decisions: the first on entitlement; the second on assessment of disablement: see, to similar, effect, MO –v- Secretary of State for Defence (WP) [2013] UKUT 222 (AAC). Moreover, the latter cannot arise until the former has occurred because what has be assessed is the degree of disablement due to service, which in this context in my plain judgment must mean attributable to, or aggravated, by service; that is, the entitlement injuries found under Article 40 of the SPO 2006: again, see to similar effect, R(AF)1/07 at paragraphs [27], [29] and [31], and Secretary of State for Defence –v- Rusling [2003] EWHC 1359 (QB), (although both were dealing with the predecessor SPO, the relevant wording was to al intents and purposes identical to the statutory wording in issue on this appeal). If it were otherwise then the scheme would be attaching liability to the Secretary of State for any injury or health condition and resultant  disablement  howsoever it was caused as long as it occurred while the person was in service, which cannot be correct.

25.	Therefore, and addressing matters again generally at this stage, as far as I can see any assessment of disablement can only be in respect of, and take account of, disablement which is due to an injury attributable to, or aggravated by, service; and the assessment must therefore disregard disablements due an injury that has either been found not to be, or has not been found to be, attributable to, or aggravated by service.   In short, and on the facts of this case, as the alcohol abuse disorder had been found on 16.05.02 not to be an injury which is attributable to, or aggravated by service, any subsequent assessment decision could not take account of the disabling effects of alcohol abuse.

26.	The appellant, through his mother, made two main arguments against this reading of the statutory scheme. I will take them each in turn, though they are related.

Article 42
 
27.	His first argument was that his disablement, including the effects of his alcohol abuse, stood to be assessed under Article 42 alone and without reference to Article 40 or the definition of injury in paragraph 32 of Schedule 6. This seemed to found on the words in Article 42(2)(a) “the degree of disablement due to service of a member of the armed forces shall be assessed” as giving rise to a free-standing entitlement. 

28.	However, in my judgment these words cannot be read in this way.  To start with, Article 42 is concerned with assessing or determining the degree of disablement and not any liability issues; that is the function of Article 40. Secondly, it ignores the rest of the wording of Article 42. For example, the very next part of the article – Article 42(2)(b) – is couched in terms of assessing the degree of disablement due to an injury which existed before or arose during service and has been and remains aggravated thereby, which plainly is referring back to the terms of Article 40(1)(a)(ii) of the SPO 2006. That at the very least strongly implies that Article 42(2)(a) links back to Article 40(1)(a)(i) and “attributable to service”.  Third, “due to” service is, in my judgment, as much a synonym for “caused by” as is “attributable to”.  

29.	Given all of this I do not accept that Article 42 has any stand-alone entitlement function that would on the facts here allow the alcohol abuse disorder to fall to be taken into account in assessing the disablement the Secretary of State is liable for.  

30.	Moreover, what was before the tribunal (and is before me) is an entitlement appeal under section 1 of the War Pensions Appeals Act 1943 and not an assessment appeal under section 5 of that Act. That has two consequences, in my judgment. First, I cannot see how an issue can arise about Article 42 when this is not an assessment appeal. Second, and more fundamentally, the separate structure for entitlement and assessment appeals under the 1943 Act points powerfully against Article 42 having any entitlement function, which it must have if the appellant is correct in arguing in effect that it can be used to ignore positive non-entitlement decisions under Article 40.

31.	In addition, and taking a stand back look at the scheme, it is very difficult to see what function Article 40 has at all if the starting point is Article 42.

Article 40 and “attributable”
 
32.	The second main argument the appellant’s mother put forward on his behalf here, as  understood it, is that even if Article 40 has to apply first it was here met by her son because all attributable means is “belonging to”  or “appropriate to” (see reference to Concise Oxford Dictionary on page 326 of the UT bundle). However, the definition on which the appellant seeks to rely comes from the word “attribute” which is not the same as attributable. Moreover, at least the first part of the definition relied on can make no sense in the context of Article 40(1)(a) as that would lead to it reading “disablement shall be accepted as due to service… [if]…..the disablement is due to an injury which belongs to service”. 

33.	In my judgment, in the context of this statutory scheme which is concerned with establishing statutory liability on the Secretary of State because of service he has required service personnel to undergo, the phrases “due to” and “attributable to” are both synonyms for “caused by”. Each phrase can be used interchangeably without changing the sense of the text of Articles 40 and 42; “belonging to” or “appropriate to” cannot, even though appropriate may fit better than belonging.  But even here the phrase “disablement shall be accepted as due to service….if the disablement is due to an injury which is appropriate to service” still conveys the sense of cause and effect between service and injury. Moreover, to hold otherwise would stand against the plain understanding of underpinning effect of the service pension schemes as explained in R(AF)1/07.    

34.	Further, in Haward –v- Fawcetts [2006] UKHL 9; [2006] 1 WLR 683, the Hose of Lords had little difficulty in finding, in the context of section 14A(8) of the Limitation Act 1980 and the words therein “the damage was attributable in whole or in part to the act or omission which is alleged to constitute negligence”,  that attributable was equivalent to  “caused by”: see Lord Nicholls in paragraphs [11], [17] and [19] (the last paragraph in particular) and Lord Walker at para. [59]. 

35.	I therefore conclude that as a matter of law “attributable to” in Article 40(1)(a) of the SPO 2006 means “caused by” service, and the tribunal did not therefore err in law in so reading it. As this was the main attack on the tribunal’s decision under Article 40 of the SPO 2006, it follows that the appeal must fail on this aspect of its decision. 

36.	What had to be established to the tribunal’s satisfaction on the evidence before it was that the Secretary of State had shown reasonable doubt that the alcohol abuse disorder was attributable to (in the sense of caused by) service (as well as showing a reasonable doubt that it arose during service and was aggravated by service – though this did not really feature in the arguments put before me).  The tribunal correctly applied the law here in looking for causation and, having considered all the evidence before it, I concur with Judge Bano’s view that the tribunal’s decision on Article 40 was fully open to it on the evidence before it.

Paragraph 32 of Schedule 6

37.	However, did the tribunal need to trouble itself with “attributable to” under Article 40 at all? I ask this because on its face Article 40 has to be read with the definitions section in Schedule 6 to the SPO, and if the tribunal was correct in its view that the appellant’s alcohol abuse disorder could not in law count as an “injury” (which I consider it was correct on, on the facts of this case), then arguably the enquiry under Article 40 ought never to get to attributability or aggravation by service as Article 40(1)(a) has to read as if it says “the disablement is not due to an injury”.

38.	That seems to have been the approach of Carswell LCJ (as he then was) in the Court of Appeal in Northern Ireland in Secretary of State for Social Security –v- McLean (17.11.00) when dealing with the 1983 Service Pensions Order and the definition of “injury” in Schedule 4 to that order, (which is in identical terms to the definition of “injury” in Schedule 6 to the SPO 2006). The Northern Irish Lord Chief Justice said (on page 6 of the transcript):

“It was not in dispute that alcoholism is a disease and hence would fall within the definition of an injury contained in …Schedule 4 to the 1983 Order.  It is, however, excluded by the subsequent wording of the definition as being an injury due to the consumption of alcohol. To bring the case back within the definition it has to be established that the person suffered from …”[and he then refers to the 50% provision and the need for the alcohol consumption to be due to a mental condition assessed at 50% or more, which is now in the last part of para. 32 in Schedule 6 to the SPO 2006].

39.	The underlined words seem to me to support the view that as a matter of statutory construction this issue may need to be approached first before the issues of atttributability and aggravation need, if at all, to be considered. On the facts of this case, as the appellant’s mental health condition had been assessed at only 20% - and this was not an assessment appal and so that assessment could not be increased by this tribunal, which in any event was only looking at entitlement under Article 40 – it seems that, the arguments about injury apart (which I will come to), the appellant’s alcohol abuse disorder fell at the first hurdle, so to speak, as not being an “injury” for the purposes of article 40(1)(a), and could not be brought back in (because of the 20% mental health assessment).  If that is the case then arguably the tribunal started from the wrong place.

40.	I sought to press Ms Broadfoot in particular on this. However she did not wish to express a view one way or the other on the correct approach, primarily because the Secretary of State’s view was that whichever approach was taken the appeal had to fail. The appellant, understandably, did not have a view either.  In these circumstances I say no more about what the correct approach is, other than what I have set out above.

41.	The appellant’s main argument here, as I understood it, was that his alcohol abuse disorder was not caught by the definition of “injury”. But as a starting point this cannot help him because if it is not an injury at all then Article 40(1)(a) has nothing to bite on and he can have no entitlement in respect of it. This, it seemed, was another part of the appellant’s argument that the starting point was Article 42 of the SPO 2006 and therefore he did not need to have an injury in order to have an assessment of (his total) disablement. However, for the reasons I have already given, that construction of the statutory scheme is simply wrong.

42.	In any event, I can find no legal error in the tribunal concluding that alcohol abuse disorder was an injury for the purposes of the SPO 2006.  That was the view of the LCJ Carswell in McLean and more recently a Tribunal of Commissioners in R(DLA)6/06 had detailed evidence before it showing that alcohol dependence is a discrete illness (see paragraphs [16] to [18] of R(DLA)6/06). I can see no material difference between alcohol abuse disorder and alcohol dependence. Further, as JG –v- SSWP (ESA) [2013] UKUT 37 (AAC), points out at paragraph [45], the view in R(DLA)6/06 is consistent with the World Health Organisations classification of alcohol dependence and harmful alcohol abuse as mental health disorders.  (Though of course the issue under Article 40 was whether that disorder was caused, or made worse, by service).

43.	In addition, I can see no good argument for saying that “injury” in the context of Article 40 and paragraph 32 of Schedule 6 to the SPO 2006 must be limited to physical injuries such as a broken leg, as the appellant sought to argue.  If that were the case then it would, on the face of it, have the effect of taking most if not all mental health conditions out entitlement altogether (as such could never be an “injury” for the purposes of Article 40(1)(a)), which to say the least would be a very odd result. The definition of “injury” in paragraph 32 of Schedule 6 is not, in my judgment so restrictive. First, it does not, for example, say physical injury. Second, the word “includes” indicates that the definition is not exhaustive and is not limited to a wound or disease. Third, as matter of language “disease” plainly includes illness and so can cover mental illness or disorder. Fourth, the exception to the exclusion would make no sense if the injury had to be physical as it plainly contemplates a (separate) mental health condition that has already been assessed, and that can only arise – per Articles 40 and 42 – if the mental health condition was itself an “injury”.

44.	Therefore, “injury” here did cover the alcohol abuse disorder, and I can then find no legal error in the tribunal’s application of paragraph 32 in Schedule 6 to the SPO 2006 so as to take the alcohol abuse disorder out of account as an “injury” and thus as something to which Article 40(1)((a) could attach.  Legally the decision was on all fours with the approach of the Court of Appeal in Northern Ireland in McLean.  The decision in R(AF) 3/09; Secretary of State for Defence –v- MR [2009] UKUT 31 (AAC), is not in point for the reasons given by the tribunal and because here the injury was the alcohol abuse disorder.     

Vires of amendments to SPO  

45.	The final argument relied on by the appellant was one that concerned whether the expanded definition of “injury” introduced to the 1983 SPO (and then carried forward into the subsequent Service Pension Orders including the 2006 SPO) by article 5(3) of the Naval, Military and Air Forces etc (Disablement and Death) Service Pensions Amendment Order 1994 (SI 994/772) was ultra vires the enabling powers.  

46.	Prior to the amendment “injury” was defined simply as “including wound or disease”. What was then added to by the amendment are all the other words now found in paragraph 32 of Schedule 6 to the SPO 2006.  

47.	Before turning to deal with the ultra vires argument it is worth emphasising two points. First, even if this old definition still applies, the appellant’s principal argument remains that the alcohol abuse disorder is not an “injury” at all, so I fail to see how on that argument the vires argument and the old definition of injury assists him or, indeed, is relevant at all. Second, even if the vires argument is correct (which it isn’t), and thus the “consumption of alcohol” exclusion of injury falls out of the picture, the tribunal’s decision that the alcohol abuse disorder was not caused by service remains in place, and is a sound decision.

48.	However, in my judgment the vires argument is plainly wrong, for the reasons given by the Secretary of State. The principal argument was that the 1994 amendments were made under section 12 of the Social Security (Miscellaneous Provisions) Act 1997, that only empowered  “modifications” to be made, modification “necessarily means improvement”, and as the modification here was not an improvement the amendment was ultra vires.  The plain flaw in this argument, in my judgment, is that “modification” does not mean improve (or only means improve), it simply means “change”. Thus, the 1994 change to the definition of “injury” was plainly lawful.  

49.	The appellant had another argument here about the 1994 change to the definition of injury which, as I understood it, was that as he contracted to join the Army before 1994 the change could not apply to him as it was not a term of his (1991) contract. The short answer to this, even assuming the Service Pensions Order could be an implied term of a contract, is that members of the Armed Services do not have contracts of employment.  In addition, there are the points made in paragraph 47 above. Even if left with the pre-1994 version of “injury”, I cannot see how this assists the appellant in winning his substantive appeal.                                                                                                                                                                                                                         
                                                                                                                                             
Conclusion
 
50.	It is for all these reasons that I dismiss this appeal and leave the decision of the tribunal to stand.   No material error of law was made by the tribunal in its decision.       

 (Signed) S. M. Wright
Judge of the Upper Tribunal
                                                                                                          
Dated 9th August 2013