Flight Sergeant (ret'd) Barbara Eyton-Hughes & Anor, R (on the application of) v The Secretary of State for Defence

The Second Claimant stayed at RAF Honington but was experiencing stress and was briefly signed off sick. On his return in September 2019, he asked for ‘early termination’ from the RAF (which I shall call ‘resignation’). Aged over 50, he was entitled to ‘resettlement support’ (i.e. to transition to civilian life) and from January to March 2020, he moved to Colchester for training in building maintenance and obtained a diploma in gas fitting. He wished to stay on for extra training, but he had used up his resettlement allowance (COVID may have played a part). His early termination interview noted:

The First Claimant stayed on at RAF Honington until May 2019, when she moved to RAF Henlow where she stayed until July 2021, then moving to her last posting in RAF High Wycombe. She was not entitled to quite the same resettlement support but did receive transition training. However, from February 2019 to December 2020, she was signed off sick or placed on light duties (‘medically downgraded’) with an adjustment disorder. Even after the SCs concluded, she remained downgraded until she resigned in February 2022. Her own ‘early termination’ interview noted that:

“My Service Complaint relates to the way that the Service Complaints previously made against me have been processed, the way they have been mishandled, fraught with mistake and undue delays. In addition, I have not been supported through the process and ignored when raising my own issues…This process has caused me huge stress, had a significant impact on my mental health, where I was signed off sick with work related stress and has led to a total lack of trust in the complaints system. This has resulted in me to early terminate from the RAF. I feel that the second service complaint was only completed once I raised the issue as the reason for my early termination to my new Line Management at RAF High Wycombe.

I believe the way that I have been treated has caused significant damage to my career and promotion prospects and that my reputation has been tarnished due to the way the complaints have been mishandled and the complete lack of confidentiality applied to my case. I have been discriminated against because I don’t have any children. I feel that the principles of fairness have not been applied to these service complaints and the process has breached my rights under Arts. 6 and 8 [ECHR].”

The First Claimant also categorised her complaint as bullying and harassment, maladministration and undue delay. The ‘redress’ she sought was investigation of various questions, an apology and compensation, though she did not specify what.

“The way that the Service Complaint against me has been handled and the treatment that I have suffered during the process has been beset with delay and unfair treatment towards me and I believe my colour has materially influenced these actions. Policy has not been appropriately applied to my case causing irretrievable damage to my military career infringing my rights under Article 8 [ECHR] to pursue my chosen vocation. I have effectively been ostracised during the complaint process and this has continued throughout the process. I believe that the service complaint was not handled following the principles of fairness as stated in the JSP. Matters got worse when RAF Honnington realised I was going to put in a service complaint against them and they become more hostile.”

The Second Claimant categorised his own complaint as racial discrimination, improper and unfair treatment, maladministration, breach of the Data Protection Act, undue delay and bullying and harassment. As ‘redress’, he sought investigation and answers to various questions and he did specify the compensation he sought:

‘Head of Complaint (‘HOC’) 1: The First Claimant believed she was wronged by the handling of previous service complaints (‘SC’s) against her characterised by maladministration, undue delay and a lack of thoroughness.

HOC 2: She felt unsupported as a respondent through the previous SCs which she alleged caused significant damage to her career and promotion prospects which eventually led to her ‘Early Termination’ from the RAF.

HOC 3 – Unfair treatment and discrimination in relation to the previous SCs that contravened the Human Rights Act 1998.

The DB re-investigated and spoke to three witnesses as they had found the initial investigation of the SC against the First Claimant had been inadequate and failed to put it in the context of the wider problems at the medical centre in RAF Honington.

[F]ailings in the original investigations and maladministration by the Service, over a 3-year period, had caused ex-FS Eyton-Hughes significant stress and anxiety. As a Respondent in the original complaints, [she] had experienced unwarranted and unnecessary pressure; her mental health had deteriorated significantly such that she struggled to perform her duties at her subsequent posting at RAF Henlow and was signed off sick with work related stress. An unfortunate and unintended consequence was that [she] was medically downgraded for the remainder of her career and this had damaged both her career and promotion prospects.

The DB found that these failings undermined [her] trust and expectation of fairness in the SC process. The DB recognized that this injustice had severely impacted [her] ability to lead a relatively normal life and this had ultimately led to her leaving the Service to rebuild her mental resilience. It is evident that [she] has experienced a very significant level of obvious distress, worry and anxiety since the complaints were first submitted in 2018. The DB determined that [she] had been wronged by the handling of the previous complaints and that the treatment she had suffered was both unfair and the associated undue delay amounted to maladministration. Therefore, with one exception [i.e. discrimination / human rights], the DB Upheld the Service Complaint.

The DB apologised on behalf of the Defence Council for maladministration and the impact that the original complaints had had on [her] reputation, military career, and her ability to lead a relatively normal life. Finally, the DB emphasized that [she] was completely exonerated from any previous criticism and he hoped that she could now move forward feeling fully vindicated…

Redress: As the DB determined that the handling of the previous complaints and undue delay amounted to maladministration, the DB directed the award of financial compensation. The DB agreed to request on behalf of the Air Secretary for [Dispute Resolution] approval, and if deemed necessary approval from HM Treasury, to make a consolatory nonquantifiable financial award to Ex-FS Eyton-Hughes for the significant level of obvious distress, worry and anxiety that she had suffered as a result of maladministration.”

The purpose of redress is to recognise the impact of the injustice caused by maladministration has had on the complainant. The Service Complaints Ombudsman for the Armed Forces (SCOAF) Financial Remedy Guidelines1, which was sent to you highlights that a nonquantifiable financial award may be recommended where the Complainant is found to have suffered obvious distress or injury to feelings; lost an opportunity or benefit; or where no specific action can be taken to fully remedy the wrong. The guidelines also contain a ‘redress scale’ for consolatory payments to ensure a consistent and transparent approach is taken by the Services when implementing a non-quantifiable consolatory payment recommendation.

Award

Taking into account the SCOAF Financial Remedy Guidelines and the circumstances of this SC, I consider that the level of redress to be at the top of the redress scale. Therefore, I concluded that an award of £3,000 would be appropriate redress for the wrongs I found you suffered in the handling of the previous complaints.

Summary of reasons…

When making my decision, I carefully considered the nature of the wrongs you were subjected to and the evidence about the impact they have had on you. I am only empowered to award redress for the elements of your SC that were upheld. It is therefore only those elements and the impact resulting from them, as opposed to the impact of the totality of the alleged course of conduct, that I have considered.

In relation to your SC, specifically, I found that the principles of fairness were not followed. I found the investigator had failed to interview key witnesses in the Chain of Command and this had resulted in unbalanced, incomplete and ultimately biased investigations. I found significant evidence of maladministration and undue delay and you were undoubtedly wronged by the poor handling of the original complaints. I also found that you had not been fully supported as a Respondent in the original complaints and that you had experienced unfair treatment.

[T]he injustice, over a considerable period, had caused you significant stress and anxiety and that your mental health had deteriorated significantly such that you struggled to perform your duties at a subsequent posting. Unfortunately, an unintended consequence of the deterioration in your health was that you were medically downgraded for the remainder of your career, which had implications on your career and promotion prospects.”

HOC 1: The Second Claimant believed he had been wronged by the handling of previous SCs against him. He believed those SCs were not handled following the Principles of Fairness laid down in Policy. He alleged the treatment he suffered was due to racial discrimination including unfair treatment and was beset with delay.

HOC 2: The Second Claimant alleged Policy was not appropriately applied causing irretrievable damage to his military career infringing his rights under Article 8 [ECHR].

It is evident that Ex-WO Pierre has experienced a very significant level of obvious distress, worry and anxiety since the complaints were first submitted in 2018 and the allegations, which were compounded by undue delay in the complaints process had impacted him massively. The DB accepted that Ex-WO Pierre had been wronged by the handling of the previous complaints; the treatment Ex-WO Pierre had suffered was unfair and the associated undue delay amounted to maladministration.

However, the DB found no evidence that the failings occurred because of Ex-WO Pierre’s race. Rather they appear to be attributable to incompetence, lack of training and resource. Therefore, the DB partially upheld the Service Complaint.

The DB apologized, on behalf of the Defence Council, for the maladministration and the impact that the original complaints had had on Ex-WO Pierre’s reputation, military career and his ability to lead a relatively normal life. Finally, the DB emphasized that Ex-WO Pierre was completely exonerated from any previous criticism and he hoped that Ex-WO Pierre could now move forward feeling fully vindicated.

Redress: As the DB determined that the undue delay amounted to maladministration, the DB directed the award of financial compensation. The DB agreed to request on behalf of the Air Secretary for DRes approval, and if deemed necessary approval from HM Treasury, to make a consolatory non-quantifiable financial award to Ex-WO Pierre for the significant level of obvious distress, worry and anxiety that he had suffered as a result of maladministration.”

“In relation to your SC..I found the principles of fairness were not followed. The investigator had failed to interview key witnesses and therefore I considered the investigation to be unbalanced, biased and incomplete. I also found exceptionally poor complaint handling and significant and unnecessary delays although I found no evidence that the failings occurred due to racial discrimination. However, I determined that the injustice had severely impacted your ability to lead a relatively normal life and ultimately this had led to you leaving the Service believing your reputation had been besmirched and your value as a Warrant Officer irrevocably undermined.”

The First Claimant’s health had been affected with the ‘unintended consequence was that [she] was medically downgraded for the remainder of her career and this had damaged both her career and promotion prospects’. That was reflected in the £3,000 non-quantifiable payment, albeit bearing in mind the First Claimant had not sought longer-term losses in her SC.

The Second Claimant ‘had left the Service believing his reputation had been besmirched and his value as a Warrant Officer irrevocably undermined’. However, the DB had not found that the Second Claimant’s career had in fact been damaged in that way (contrary to their more explicit finding with the First Claimant: which is why I chose her as such in granting permission and consolidating the two cases). Nevertheless, the DB still awarded the Second Claimant the same financial redress as the First Claimant of £3,000.

“We act for Flight Sergeant (Ret’d) Barbara Eyton-Hughes in respect of her Service Complaint (SC). We refer to: (1) the findings of fact substantially upholding the grounds of our client’s SC set out in the Decision Letter dated 8th June 2022 and sent by email on that date to our client (which findings are expressly not appealed); and (2) the financial award (redress) consequent upon those findings set out in the Decision Letter dated 20th July 2022 again sent directly to our client by email by which our client was awarded just the sum of £3,000 (together with an apology): it is this financial award of £3,000 that is now…appealed by our client.

The June Decision

The DB in reaching their decision on 8th June 2022 made many findings of fact. Air Commodore Malcolm Crayford quite properly and correctly, and frankly indisputably, reported that the DB found… that: “….I found that the principles of fairness were not followed. I found the investigator had failed to interview key witnesses in the Chain of Command and this had resulted in unbalanced, incomplete, and ultimately biased investigations. I found significant evidence of maladministration and undue delay and you were undoubtedly wronged by the poor handling of the original complaints. I also found that you had not been fully supported as a Respondent in the original complaints and that you had experienced unfair treatment.”

The July Decision

In considering the basis for the redress set out in the decision made on 20th July 2022, Air Commodore Crayford, again quite properly and correctly, and just as indisputably, stated: “6. I found that the injustice, over a considerable period, had caused you significant stress and anxiety and that your mental health had significantly deteriorated such that you struggled to perform your duties at a subsequent posting. Unfortunately, an unintended consequence of the deterioration in your health was that you were medically downgraded for the remainder of your career, which had implications on your career and promotion prospects.”

They continued in paragraph 7 of that letter to apologise on behalf of the Defence Council and the Royal Air Force, and noted the impact on our client’s reputation, military career, and ability to lead a normal life. They regretted the significant level of obvious distress. They concluded that our client had been completely exonerated from any previous criticism.

And yet the financial award was just £3,000.

The grounds of the appeal

The level of the financial award made in the letter of 20th July 2022 is perverse, irrational, and not one that any reasonable tribunal properly directing itself to the findings it had made and the consequences of those findings, could have reached. In particular the Financial Award does not reflect, adequately or to any meaningful degree the findings made and so elegantly summarised by Air Commodore Crayford and in particular that our client lost: * her career – our client, who was born on 28th March 1973 and is now aged 48, quite reasonably intended to serve until age 60: she potentially could have been extended annually until age 65 - instead she is now a civilian working as a paralegal and earning but a fraction of her earnings as a senior NCO; * her reputation * her mental health * potential promotion – our client will need to see a career forecast to quantify this in detail but it is likely that our client would have been promoted at least one more step; * the collateral benefits of RAF service – our client would have enjoyed these until at least age 60 including those relating to housing, mess life, medical care, dental care, gymnasia, sport, travel, and education credits which are well known; and * pension payments – our client would have earned a greater and higher level of pension, and tax free lump sum payments from a longer career as will be well known within the Service.

Further, in reaching the decision in respect of the Financial Award, the Decision Maker irrationally and wrongfully failed to call for or to obtain or to consider: * any evidence of immediate financial loss * any evidence of potential lost promotion / career forecast * any evidence of lost pension and lump sum * any evidence of psychological or psychiatric injury – in particular by obtaining a suitable medical report or by agreeing with our client that one should be obtained * any evidence of lost collateral benefits * any evidence of actual relocation / resettlement costs * any evidence of actual retraining / education costs all of which were likely to be obvious consequences of the findings of the effects on our client set out in June Letter or summarised in paragraph six of the July Letter.

Yet further, in reaching the decision in respect of the Financial Award, the Decision Maker irrationally and wrongfully failed to * call for or to obtain any evidence from our client in respect of the effects on her – both the quantifiable losses and the unquantifiable losses – what lawyers call the special and general damages * interview our client to directly establish her position * call for or to obtain any submissions from our client in respect of: (1) the basis of the Financial Award (2) appropriate level of Financial Award (3) the method of calculation of the Financial Award; or (4) the evidence needed to assess the Financial Award

Proposal for resolution

Our client can set out her losses in Schedule if you indicate that this would be helpful. Preliminary calculations by experienced counsel suggest that these will exceed £175,000 and may be as high as £300,000 having regard to potential promotion and pension loss. These are not final figures and much work will need to be done to calculate the sums involved. These numbers are intended to be indicative.

They demonstrate, however, that sum of £3,000 awarded fails utterly to reflect the impact on our client. We and our client are happy and committed to engage in any form of ADR or mediation to resolve this matter. We suggest that it may be appropriate for a way ahead to be agreed to obtain the necessary evidence and then refer the matter back for a collaborative process leading to an appropriate Financial Award being made which reflects the findings made.”

The Second Claimant’s appeal was in similar terms as adjusted to his case – the potential size of his claim was said to be in excess of £150,000 and as high as £275,000 (presumably given he was a little older and intended to serve until 60). Whilst it is not entirely clear, I accept both appeals requested an oral hearing to give evidence about their losses and to explain their reasons for resigning from the RAF.

“If you disagree with the DB’s decision you have the right to appeal and escalate your complaint to an Appeal Body….If you appeal, the Appeal Body is not bound, restricted or confided by my decision and will consider the whole of your Service Complaint again, including any parts that have been upheld and any redress that I have recommended. The Appeal Body may not reach the same decisions as the DB.” (original bold)

“This whole process has been extremely stressful and I was crying all the time at the slightest thing. The way I have been treated has significantly damaged my career and promotion prospects. Before the SCs I was competitive for promotion but in the 3 yr period of the SCs, I was not competitive at all for promotion. As soon as the SCs were finalised I became competitive again. Although I had expected to serve the next 14 or 15 yrs. in the RAF, for the sake of my mental health I felt that I had no choice but to Early Terminate (ET) from the RAF and I submitted by application for ET in July 2021. The SCs still had not reached a conclusion but I felt I had no choice if I was to get an improvement in my mental health. I was just under so much pressure and I felt that as it had gone on for so long, everyone thought I must be guilty.”

“In addition to the entire SCs being extremely detrimental to my health, it has caused irretrievable damage to my military career and forced me to prematurely leave the RAF. I had been successful in applying to be WO Head of RAF Medical Services…. This was at the start of the SCs ….The SWO couldn’t keep quiet about it….There was no way I could take it up…with all the breaches of confidentiality and as I was receiving calls from across the RAF within my trade; I had to clear my name…..My position had now become untenable and I had no one I could go and see for support….I couldn’t go to HR because they were part of it and with all the stress and pressure I was under, my health was suffering. The only support I could get was from seeing doctors from another unit….When I returned to work the stress and anxiety returned and I felt I could not go on anymore. Within a month of coming back from sick leave, I [sought Early Termination (‘ET’)] in Sept 19…[B]efore the SC and Climate Assessment, I had not considered leaving the RAF and I had planned to stay as long as I could. However, with how the SC was being handled and the way I was being treated I couldn’t go on any longer and I felt I had no choice but to leave for the good of my mental health and wellbeing….”

The First Claimant’s SJAR’s for the periods to May 2019, November 2020 and July 2021 had a ‘A-‘ grade meaning she was performing above expected standards and her promotion recommendations were ‘high’. Indeed, she had ‘acted up’ as Warrant Officer when the Second Claimant was absent. Whilst the Second Claimant had conducted her 2018-2019 SJAR, after she moved from RAF Honington, an officer at RAF Henlow in her 2019-2020 SJAR also supported her promotion. The same officer said in her 2020-21 SJAR:

The Second Claimant’s SJARs were similarly positive – indeed as noted he had been offered promotion in 2018 but turned it down due to the service complaints to ‘clear his name’. Again, his 2017-2018, 2018-2019 and 2019-2020 SJARs were all positive and all supported his promotion, indeed his average grades in the period improved from a ‘B+’ to ‘A-’. Moreover, each of his SJARs supported his candidacy for promotion, albeit by the last he was on the cusp of retiring from the RAF. Notably, whilst the Second Claimant has been working as a gas fitter using those qualification, his last appraisal, referring to his impending employability in civilian life, said:

“I have been appointed as the Harassment Investigation Officer (HIO) to investigate the appeal to Ex WO Pierre…and Ex FS Eyton-Hughes…Service Complaint (SC)…Their SC centres around their allegation that a previous SC (Sep 2018), in which they were both named as Respondents forced them to subsequently leave the RAF in 2020 and 2022 respectively. What I am trying to ascertain is: a. What were the career prospects of WO Pierre and FS Eyton-Hughes prior to the initial SC in Sep 18 ? b. What discussions, if any, did they have with CM about their careers and the impact the SC was having on them ? c. The dates they… submitted their application for ET and any comments made. d. From a CM perspective what were their future prospects had they remained in the RAF ?”

Whilst Sq Ldr Pollock referred to a discussion, it seems this did not occur as Sgt Davis promptly sent an email by return the very same day on which Sq Ldr Pollock asked only one brief question of clarification, suggesting there was no need for a discussion. In his first email that day, Sgt Davis explained:

Whilst Sgt Davis clarified in response to Sq Ldr Pollock’s only question that the First Claimant had not been competitive for promotion in 2018, 2019 and 2020, as Gp Capt Page explained in a statement for this claim, Sgt Davis’ answer on the 2021 Promotion Service Board meant that the First Claimant would not just have been competitive, she would have been the next to be released to a guaranteed vacancy. This is why it was entirely possible she would have been promoted in 2022.

“[W]e are not bound by the findings of the DB and have independently and objectively formed our own view on all aspects of your SC. However, to avoid unnecessary repetition and duplication, where we agree with the findings and reasons provided by the DB, we will adopt them by reference.”

The AB did indeed agree with the DB in that it upheld the Claimants’ complaints of maladministration and undue delay and also did not upheld their complaints of discrimination and breach of human rights. (The AB reconsidered those even though they were not appealed, but there is no challenge to their decisions about either of those, which would have had an alternative remedy in the Employment Tribunal or Court in any event). However, crucially, the AB did reach different (and challenged) conclusions on the impact on the Claimants’ careers of the SCs against them than the DB did. That difference between the DB and AB is key to this claim.

“13…[It] is not clear from the DB’s [decision letter] whether the DB upheld your allegation that this has caused significant damage to your career and promotion prospects which eventually led to you early terminating from the RAF. Nevertheless, the AB noted the DB’s subsequent comment at para 6 of the Record of Case Hearing which states “An unfortunate and unintended consequence was that Ex-FS Eyton-Hughes was medically downgraded for the remainder of her career and this had damaged both her career and promotion prospects”. The DB further states at para 6 of the Confirmation of Financial Award letter dated 20 Jul 22 that “I found that the injustice, over a considerable period, had caused you significant stress and anxiety and that your mental health had significantly deteriorated such that you struggled to perform your duties at a subsequent posting. Unfortunately, an unintended consequence of the deterioration in your health was that you were medically downgraded for the remainder of your career, which had implications on your career and promotion prospects”.

Moving onto the next part of this HoC (that the lack of support caused significant damage to your career and promotion prospects which eventually led to you early terminating from the RAF),your medical records highlight that the situation had caused you a great deal of stress throughout which, at times, required you to take time off work. Your Early Termination paperwork also shows your reasons for wanting to leave the RAF early were “Dissatisfaction with Overall Career/Promotion Prospects, Bullying, that [you] had a service complaint against [you] for nearly 3 years that has seriously affected [your] health and [you] believed that due to this you have been overlooked for promotion”.

The evidence obtained….demonstrates that you continued to be well thought of by your Chain(s) of Command. This is supported by your last 3 SJARs which clearly identify continuing high performance and solid ‘High’ recommendations for promotion. In addition, the current Career Manager, having assessed these reports states “FS Eyton-Hughes last three SJARs she received an OPG of A- with a High prom rec. On the 2021 PSB she finished 6 on the MOL, and 5 were released to the PSB. It’s entirely possible that had she remained in the Service she may have been promoted on the 2022 PSB…When she reached FAD she would have been employable in any FS post”. It appears, therefore, on the balance of probabilities, that neither your on-going medical condition, nor the ongoing SCs had caused ‘significant damage to your career and promotion prospects’. Further, the outcome of these SCs was that only one HoC was upheld in the [first SC against you] and 2 within the [second] the findings from which were not career limiting. We also conclude, therefore, that it was not reasonable for you to believe you had no choice other than to leave the RAF under these circumstances.

For these reasons, we partially uphold this HoC in that the support you received was inadequate but that it did not cause significant damage to your career and promotion prospects and it did not therefore warrant you leaving the Service…..(original bold)

Having upheld HoC 1 and partially upheld HoC 2 and HoC 3, we have considered the redress you sought in your SC and those within our delegated powers to grant. We concur with the DB that there is clear maladministration demonstrated throughout the original SCs against you, however, we have found that this had not caused significant damage to your career. Further, we also concluded that it was not reasonable for you to believe that you had no choice other than to leave the RAF under these circumstances. As such, the claim for loss of earnings etc covered within your appeal is not considered further. Nevertheless, we have proposed a financial award to acknowledge the distress, worry and anxiety caused to you as a result of the maladministration.”

Having sought HM Treasury approval, the AB endorsed the original non-quantifiable payment of £3,000, but also added £500 for the additional delay since the DB decision in July 2022. Therefore, the confirmed total award was £3,500.

Whilst it is evident from the evidence…that policy was not appropriately upheld throughout the administration of the SCs made against you, in particular the Principles of Fairness for the Handling of Service Complaints…we needed to consider whether this had caused ‘irretrievable damage to your military career”

Your medical records highlight that the situation had, at times, caused you acute stress, that you were not sleeping properly and were feeling anxious due to the ongoing SCs against you. Your Early Termination paperwork also shows your reasons for wanting to leave the RAF early were; “Dissatisfaction with Overall Career/Promotion Prospects, Lack of Current Job Satisfaction and a perception that that [you had] not been supported by the RAF”. However, the evidence obtained…appears to demonstrate that you continued to be well thought of by your Chain(s) of Command. This is supported by your last 3 SJARs which clearly identify continuing high performance. Further, the current Career Manager…. states “I see no evidence that his service was restricted, he could have been employed in any RAF Medic OR9 post and executive employment would have been possible subject to successful interview with job holder”. Accordingly, whilst we acknowledge that the maladministration of this case had impacted your ability to lead a relatively normal life whilst the SCs against you were being administered, we believe on the balance of probabilities, that this had not caused irretrievable damage to your military career. Further….you chose to submit your early termination paperwork and leave the Service whilst the original SCs were ongoing. The outcome of these SCs was that only 2 HoCs were upheld against you in each case and the findings from these would not have been career limiting. We also conclude, therefore, that it was not reasonable for you to believe that you had no choice other than to leave the RAF under these circumstances….

16…[W]e partially uphold this HoC in that policy was not adequately followed but that the errors did not infringe your Article 8 rights and did not warrant you leaving the Service [original bold]…..

Having partially upheld both HoCs, we have considered the redress you sought in your SC and those within our delegated powers to grant. We concur with the DB that there is clear maladministration demonstrated throughout the original SCs against you, however, we have found that this had not caused irretrievable damage to your career. Further, we also concluded that it was not reasonable for you to believe that you had no choice other than to leave the RAF under these circumstances. As such, the claim for loss of earnings etc covered within your appeal is not considered further. Nevertheless, we have proposed a financial award to acknowledge the distress, worry and anxiety caused to you as a result of the maladministration.”

“Having reviewed the key documents I find that there is no reasonable prospect that a new investigation would result in a different outcome. We will not, therefore, be investigating your complaint. Based on the available evidence, you did not appeal the Decision Body's (DB) decision, but appealed the amount you were awarded as redress. In the Appeal Body determination, it is clear the issue of your early termination was considered and that the Appeal Body found your last three appraisals "clearly identify continuing high performance". The Appeal Body said: “….[T]he findings from [the Service Complaints in which you were a respondent] would not have been career limiting. We also conclude therefore, that it was not reasonable for you to believe that you had no choice other than to leave the RAF under these circumstances." I am not persuaded that an investigation by SCOAF would achieve significantly more. The DB and Appeal Body appear to have investigated the substantive matters reasonably and found that you were wronged by the poor handling of the Service Complaints in which you were the respondent. Financial redress was awarded in recognition of the distress, worry and anxiety caused as the result of the maladministration found. Based on the available information, SCOAF will not be able to provide the redress you are seeking from an investigation. We cannot 'quash' the Appeal Body's determination or financial redress offer and recommend that a new Appeal Body consider the matter afresh. We also cannot recommend financial redress in relation to potential loss of earnings or for 'constructive dismissal.”

The Ombudsman notified the Claimants that should they wish to pursue the matter further, they may be able to bring a claim for judicial review.

“The [First] Claimant had become ill with a diagnosed psychiatric condition because of the stress - an Adjustment Disorder and Depression. The DB found that: "An unfortunate and unintended consequence was that Ex-FS Eyton-Hughes was medically downgraded for the remainder of her career and this had damaged both her career and promotion prospects.”

What the First Claimant had said herself in her service complaint was this:

Both Claimants brought seven similar if not identical grounds of challenge:

Secondly, it is arguably procedurally unfair and/or irrational to take into account new information on financial loss without either calling for evidence offered by the appellant or if the new evidence raises a significant dispute of fact, offering the appellant an oral hearing: R(Ogunmuyiya)…..

Thirdly, there is an important question of law as to the principles on which the Defendant can and if so how it should make redress for ‘quantifiable loss’. This is a subject on which the SOCAF guidance is much clearer than the Defendant’s guidance, largely silent on ‘quantifiable loss’ and more focussed on the need for Treasury approval of ‘unquantifiable loss’. This is an important point of law which is squarely raised especially in the First Claimant’s case with a decision-maker finding that injustice had damaged her career, subject to procedural fairness arguments about the appeal body reaching a different conclusion summarised above. It raises a question whether the Defendant legally erred in failing to award ‘quantifiable loss’ to the First Claimant and whether it erred to the extent that the Second Claimant had incurred ‘quantifiable loss’.”

Firstly, the statutory and policy framework on service complaints and in particular on the issue of ‘redress’ and the role of Treasury authorisation (when I will also address the Defendant’s point about whether the Ombudsman not itself should have been the correct ‘target’ for the claim);

Secondly, the permissible scope of ‘redress’ and in particular whether it can in principle include compensation for any loss of earnings after resignation;

Thirdly, whether the Defendant lawfully awarded only unquantifiable payments on the basis the SCs against the Claimants had not significantly damaged their careers, so it was unreasonable for them to resign in response;

Fourthly, whether it was procedurally unfair for the Defendant to reach those conclusions without an oral hearing;

Finally, whether it was procedurally unfair for the Defendant to reach those conclusions without giving the Claimants warning it was minded to do so.

I address the ‘no difference’ arguments as I proceed. I should add I am very grateful to both Counsel for their assistance. As this is an important issue to servicepeople with relatively little guidance and a familiar field for me as a former Employment Judge, I referred them to cases to ensure that this judgment was comprehensive.

If a person subject to service law thinks himself or herself wronged in any matter relating to his or her service, the person may make a complaint about the matter.

If a person who has ceased to be subject to service law thinks himself or herself wronged in any matter relating to his or her service which occurred while he or she was so subject, the person may make a complaint about the matter….

A person may not make a service complaint about a matter of a description specified in regulations made by the Secretary of State.”

On that last point, Reg.3(2) SCMP Regs provides that:

The exclusion in Reg.3(2)(e) was not invoked in this case as the Claimants did not make their service complaints to the DB about maladministration and undue delay in handling of their own service complaints. Reg 3(1) adds that a person may not make a service complaint about a matter within the Schedule, which includes in paras 1(t)-(u) of it ‘a matter capable of being the subject of a claim for personal injury or clinical negligence against the Ministry of Defence’ (‘MoD’). However, by reference to Reg.5(2) SCOM Regs, Sch.1 para.2 states that does not prevent a service complaint about some matters (including discrimination, harassment, bullying, dishonest or biased behaviour) ‘in connection with a matter specified in para.1 Schedule’. So, a serviceperson cannot bring a service complaint which could be the subject of a personal injury claim against the MoD, but they can bring a service complaint about bullying/harassment etc ‘in connection with’ such a claim. This provides protection for ‘victimisation’ in response to personal injury claims.

Service complaints regulations must provide for the Defence Council to decide, in the case of a service complaint that is found to be admissible, whether the complaint is to be dealt with— (a) by a person or panel of persons appointed by the Council, or (b) by the Council themselves.

The regulations must provide for the person or panel appointed to deal with the complaint.…(a) to decide whether the complaint is well-founded, and (b) if the decision is that the complaint is well-founded— (i) to decide what redress (if any), within the authority of (as the case may be) the person [or] the persons on the panel…. would be appropriate, and (ii) to grant any such redress…”

The Defence Council must not appoint a person or panel to deal with a service complaint unless— (a) the person is, or all the persons on the panel are, authorised by the Council to decide the matters mentioned in subsection (2) and to grant appropriate redress, or (b) the Council propose to authorise that person or those persons for those purposes….”

s.340D relates to the conduct of appeals of service complaints and states as material:

“4.—(1) A service complaint is made by a complainant making a statement of complaint in writing to the specified officer.

The statement of complaint must state— (a) how the complainant thinks himself or herself wronged; (b) any allegation which the complainant wishes to make that the complainant’s commanding officer or his or her immediate superior in the chain of command is the subject of the complaint or is implicated in any way in the matter, or matters, complained about; (c)whether any matter stated in accordance with sub-paragraph (a) involved discrimination, harassment, bullying, dishonest or biased behaviour, a failure by the Ministry of Defence to provide medical, dental or nursing care for which the Ministry of Defence was responsible or the improper exercise by a service policeman of statutory powers as a service policeman; (d) if the complaint is not made within the period which applies under regulation 6(1), (4) or (5), the reason why the complaint was not made within that period; (e) the redress sought; and (f) the date on which the statement of complaint is made….

—(1) After they receive a referral of a service complaint from the specified officer, the Defence Council must decide whether the complaint is to be dealt with— (a) by a person or panel of persons appointed by the Council; or (b) by the Council themselves.

The person or panel of persons appointed to deal with the service complaint or (in a paragraph (1)(b) case) the Defence Council must— (a) decide whether the complaint is well-founded; and (b) if the decision is that the complaint is well-founded— (i) decide what redress (if any), within the authority of the person or persons on the panel or (in a…(1)(b) case) the Defence Council, would be appropriate; and (ii) grant any such redress.

—(1) Where a decision under regulation 9(2)(a) or (b) is made by a person or panel of persons appointed under regulation 9(1)(a), the complainant has a right to appeal to the Defence Council against that decision….”

This was the version that was in force at all material times in this case. However, DB decisions made since 15^th June 2022 (just after those in this case), now have a more limited appeal: which is a review not a rehearing. Reg.10(1) now provides:

The Service Complaints Ombudsman may, on an application to the Ombudsman by a person within subsection (2), investigate— (a) a service complaint, where the Ombudsman is satisfied that the complaint has been finally determined; (b) an allegation of maladministration in connection with the handling of a service complaint (including an allegation of undue delay), where the Ombudsman is satisfied the complaint has been finally determined; (c) an allegation of undue delay in the handling of a service complaint which has not been finally determined; (d) an allegation of undue delay in the handling of a relevant service matter.

The following persons are within this subsection— (a) in a case relating to a service complaint, the complainant; (b) in a case relating to a matter in respect of which a service complaint has not been made, the person who raised the matter…...

An application to the Ombudsman—(a) must be made in writing, (b) must specify the kind (or kinds) of investigation which the complainant wishes the Ombudsman to carry out (an investigation under a particular paragraph of subsection (1) being a “kind” of investigation for this purpose), and (c) must contain any other information specified…

The purpose of an investigation is — (a) in the case of an investigation under subsection (1)(a), to decide whether the complaint is well-founded and, if so, to consider what redress (if any) would be appropriate; (b) in the case of an investigation under subsection (1)(b), (c) or (d), to decide— (i) whether the allegation is well-founded, and (ii) if so, whether the maladministration or undue delay to which the allegation relates has or could have resulted in injustice being sustained by the complainant.

The power to carry out an investigation under subsection (1)(a) or (b) includes power to investigate any maladministration in connection with the handling of the service complaint where it becomes apparent to the Ombudsman during the course of an investigation that any such maladministration may have occurred….”

Investigation procedure is governed by s.340I AFA, which states:

(Those Regulations are the SCOM Regs I need not quote). s.340L AFA states:

“2 It is a familiar feature of public law that Ministers and other public authorities often have wide discretionary powers to exercise. Usually these are conferred by statute, but in the case of Ministers they may derive from the common law or prerogative powers of the Crown, which fall to be exercised by them or on their advice. Where public authorities have wide discretionary powers, they may find it helpful to promulgate policy documents to give guidance about how they may use those powers in practice. Policies may promote a number of objectives. In particular, where a number of officials all have to exercise the same discretionary powers in a stream of individual cases which come before them, a policy may provide them with guidance so that they apply the powers in similar ways and the risk of arbitrary or capricious differences of outcomes is reduced. If placed in the public domain, policies can help individuals to understand how discretionary powers are likely to be exercised in their situations and can provide standards against which public authorities can be held to account. In all these ways, policies can be an important tool in promoting good administration.

3 Policies are different from law. They do not create legal rights as such. In the case of policies in relation to the exercise of statutory discretionary powers, it is unlawful for a public authority to fetter the discretion conferred on it by statute by applying a policy rigidly and without being willing to consider whether it should not be followed in the particular case. However… in certain circumstances a policy may give rise to a legitimate expectation that a public authority will follow a particular procedure before taking a decision..[or] confer a particular substantive benefit when it does...

In these cases, the courts will give effect to the legitimate expectation unless the authority can show that departure from its policy is justified as a proportionate way of promoting some countervailing public interest. If the policy is not made public, and an affected individual is unaware of its relevance to his case and in that sense has no actual expectation arising from it, the authority may still be required to comply with it unless able to justify departing from it: …Mandalia v SSHD [2015] 1 WLR 4546….. Under some conditions the holder of a discretionary power may be required to formulate a policy and to publish it: R(WL (Congo)) v SSHD [2012] 1 AC 245. Thus, policies have moved increasingly centre stage in public law.

4 In..parallel…perhaps reflecting the increased importance of policies, there has been an increase in judicial review of the contents of policies…”

Whilst R(A) concerned such a challenge to a policy (in relation to the very different issue of disclosure of information concerning sex offenders), there is no such challenge in the present case. Indeed, the Claimants say the policy guidance here was lawful but misunderstood by the AB (the acronym used in relevant policies, as is ‘DB’, both of which I continue to use), for which the Defendant is responsible. So, this case is rather closer to Mandalia (to which I will return later).

The aim of the Service Complaints system is to provide serving and former Service personnel with a process that is efficient, effective and fair so they can resolve valid grievances on matters relating to their service in the Armed Forces and seek redress. It is the responsibility of all involved in the process to ensure complaints are handled fairly, promptly and correctly. The intent is that complaints are dealt with quickly and at the most appropriate level….

The SCOAF has an important role if the Complainant is not satisfied when the Service Complaint process has been completed. The Complainant can apply to the SCOAF for an investigation into the complaint itself (substance investigations) or because they believe the complaint was not handled correctly (maladministration investigations), or both. If the SCOAF goes on to investigate, they must produce a report with findings and, if appropriate to the investigation, recommendations which the relevant single Service is to respond to in writing. It is also possible for the Complainant to approach the SCOAF alleging undue delay before or during the handling of a complaint….

In assessing a Service Complaint, the DB and AB (if applicable) must decide if the complaint is well-founded. They will use the same standard of proof used in employment law, i.e. that it was more likely than not that the wrong alleged by the complainant occurred. This is known as ‘on the balance of probabilities’. The decision reached by a DB or AB will be on the basis of a unanimous decision or simple majority when more than one person has been appointed….

The DB must decide whether the Service Complaint is well-founded, and, if it is, what redress (if any) is appropriate, and grant such redress…..

The AB appointed to consider the appeal must determine whether the Service Complaint is well-founded, and if it is, what redress (if any) is appropriate, and grant any such redress….

Once the determination has been received, if the Complainant is dissatisfied with the outcome of the complaint or how it was handled, or both, the Complainant has the right to apply to the SCOAF for an investigation to be carried out…”.

The AB appointed by the single Service Secretariat to determine your appeal must decide whether, on the balance of probabilities, it is well founded, and, if it is, what redress (if any) is appropriate, and grant any such redress. The AB can also ask someone to investigate your Service Complaint on its behalf, but the AB that has to reach the final decision…

If appropriate, the AB may decide that further investigation of your Service Complaint, or aspects of it, is required. If this is the case, the AB, or person they appoint, will carry out an investigation to establish the facts of your complaint. As part of this investigation and consideration of your Service Complaint, they may ask you or anyone else they consider appropriate, to provide them with information or documents. If that information or those documents are not provided within a reasonable period of time, the AB can go on to reach a decision based on the information or documents they have. It is therefore in your interests to respond within any time limit that is set, and to let anyone who is asking for your reply know as soon as possible if you will need more time.

Having completed an investigation and before making its determination, the AB will disclose to you all relevant documentation and information on which the appeal is to be determined. The same material will also be disclosed to the Respondent(s) (redacted where appropriate) and any other person who might be affected by the outcome. This gives you and the other parties the chance to comment in writing on the papers, and for those comments to be made available to the AB for consideration when making their determination on your appeal. Your response must be provided within ten working days to avoid any unnecessary delay, however in exceptional circumstances, a longer period may be offered…

[T]he AB has to give any person who is the subject of your complaint (a Respondent) or any other person who is likely to be criticised in a decision it might make, an opportunity to comment on allegations about them in your complaint. Any comments received must then be given due weight by the AB in making its decision on your Service Complaint.

Once the AB has considered and determined your appeal they will notify you in writing of the decision giving their reasons for the decision. They will also inform you of your right to apply to the SCOAF for an investigation if you are dissatisfied and the time limit for doing so.”

As the DB, you have the authority needed to decide what appropriate redress should be granted when any part of a Service Complaint is upheld. MOD does not however have delegated authority from HM Treasury to decide on the value of a financial award to be paid in cases where the decision in the Service Complaints process is a financial award should be paid as redress for delay, injury to feelings, stress, inconvenience caused, damage to reputation or any other such consequence of a wrong. This is because the amount to be awarded is not measurable (i.e. it is ‘unquantifiable’), it would for example be measurable if it were found that an allowance should have been paid, and is therefore difficult to determine. The value is subjective, and HM Treasury considers such payments to be ‘novel and contentious’ in terms of spending public money and so their approval is required as to the sum to be awarded.

Where unquantifiable financial awards of this nature are considered to be, or form part of, appropriate redress in the view of the DB, you will have to pause in finalising your decision and seek Treasury approval…for an appropriate sum, before the final decision on the complaint can be communicated. Advice, including legal advice from the single Service Secretariat must always be sought in these circumstances. Please be aware that authority to award financial redress may ultimately be declined….”

Having considered the appeal and undertaken any further investigation required, and prior to making your determination, you must ensure all relevant evidence on which the appeal is to be determined is disclosed to the Complainant….

Pre-decision disclosure provides the opportunity for those parties to comment in writing on the papers, and for you to consider those comments when making your determination.

You must establish whether the Service Complaint is well founded. The standard of proof to be applied when determining the appeal is known as ‘on the balance of probabilities’.

In their appeal application (Annex G), the Complainant must state the grounds on which they would like to appeal and why. Whilst this would identify those matters about the decision stage that the Complainant is concerned about, you may decide, if appropriate, to consider the entirety of the complaint afresh. This may result in your findings and determination, and any redress, being different from those of the DB.

You must ensure that any person who is the subject of the Service Complaint (a Respondent), or any other person who is likely to be criticised in a decision you might make, is given an opportunity to comment on allegations about them in the Service Complaint. Any comments received must then be given due weight in making your decision on the Service Complaint….

There is no obligation to hold an Oral Hearing (OH) in any case. A Complainant may request an OH but the final decision lies with the AB.

The complexity of the Service Complaint and its potential wider implications may be considerations to be included in coming to a decision on whether to hold an OH. Similarly, an OH may involve no more than asking the Complainant to state the Service Complaint in person, but might involve others concerned. Straightforward Service Complaints involving no substantial conflicts of evidence on any material issue or difficult points of law may be less likely to require an OH….

Any relevant documents will be considered as well as oral evidence. Evidence is not taken on oath and witnesses may be questioned by the AB considering the Service Complaint and by the Complainant or a representative. The hearing should be investigative rather than adversarial. The Complainant, Respondent or a representative may address the AB and may submit documentary evidence. Witnesses may also be called to give oral evidence based on their witness statement….

As the AB, you have the authority to decide what appropriate redress should be granted when any part of a Service Complaint is upheld. MOD does not however have delegated authority from HM Treasury to decide on the value of a financial award to be paid in cases where the decision in the Service Complaints process is that a financial award should be paid as redress for delay, injury to feelings, stress, inconvenience caused, damage to reputation or any other such finding. This is because the amount to be awarded is not measurable - it would for example be measurable if it were found that an allowance should have been paid - and is therefore difficult to determine. The value is subjective, and HM Treasury considers such payments to be ‘novel and contentious’ in terms of spending public money and so their approval is required as to the sum to be awarded.

Where unquantifiable awards of this nature are considered to be, or form part of, appropriate redress in the view of the AB, you will have to pause in finalising your decision and seek HM Treasury…. for an appropriate sum, before the final decision on the Service Complaint can be communicated. Advice, including legal advice from the single Service secretariat must always be sought in these circumstances. Please be aware that authority to award financial redress may be declined.”

“Section 340C… provides for the Defence Council (DC) to delegate its function in relation to a Service Complaint (SC) to a person or panel (hereinafter called the Appeal Body (AB)) to decide on a SC that has been ….appealed following a determination by the Decision Body.”

Duties of an Appeal Body

The role of the AB is outlined at Part 2 Chapter 7 to JSP 831. This role includes but is not limited to a. Ensuring the timely progression of the complaint. The RAF Service Complaints Journey fully details the timescale and procedures that must be followed; b. Ensuring that a thorough investigation of the complaint takes place and the Complainant, and all Respondents are given opportunity to comment on the said investigation; c. Determine if the complaint is well-founded and if so determine what redress if any is within your authority, would be appropriate and to grant any such redress; d. Exploring appropriate informal resolution opportunities (as long as such exploration does not unduly delay the progression of the complaint itself); e. Ensuring the Complainant and all Respondents are kept informed of progress of the complaint (to also include explaining why any delays or administrative errors have taken place and how you intend to rectify any such issues); f. Capturing in your formal record of decision whether there are any Organisational Learning issues arising from this complaint; g. Keeping a detailed record of your actions as the AB….

Case Conferences and Oral Hearings

It is for the AB to decide if it wishes to hear evidence orally in connection with the SC. You should review the Guidance provided on Case Conferences in the RAF Service Complaints Journey before determining whether to convene a case conference or an oral hearing….

Decisions

Decisions are to be made on the balance of probabilities, i.e. is it more likely than not that the matter being considered took place…..

Authority to Determine and Grant Appropriate Remedy

As an AB you are authorised under the powers delegated to me2 by the Air Secretary and Chief of Staff Personnel to effect: non-financial remedy, including but not limited to remedies relating to terms and conditions of service, and; financial remedies relating to Category D losses and Category E2 (other ex gratia) special payments of up to £250K.

Before determining remedy the AB is to as necessary consult with the Subject Matter Expert (SME) relevant to the type of remedy that you are considering. If you have not already been made aware of the most appropriate SME, please contact either the Case Manager or myself….

Financial Redress

Financial remedy will be either a Quantifiable or Non-Quantifiable payment:

Quantifiable payments include Category D losses (claims abandoned) [Footnote :For examples see: JSP 472 Part 2 Chapter 12 Paragraph 21 Page 133] and special payments Category E2 (other ex gratia payments) [Footnote: For examples see: JSP 472 Part 2 Chapter 12 Paragraph 28 Page 134]. Sums of over £250,000 require HM Treasury approval to be obtained;

Non-quantifiable payments include but are not limited to stress and suffering. You are not to award a non-quantifiable financial remedy without first gaining HM Treasury approval.

The granting of financial awards is governed by Treasury Guidelines on Managing Public Money and related documents. These guidelines are to be followed.

A comprehensive audit trail is to be retained for all cases where a financial payment is authorised including recording how the decision was reached. Where a financial payment is made to a Complainant as a consequence of the primary remedy (for example by back-dating promotion, a commensurate back payment of salary may be required) this must also be recorded.

Further guidance on granting financial remedy is at Annex B ‘Service Complaints – Financial Remedies – Guidance on Financial Remedies’.”

“SERVICE COMPLAINTS FINANCIAL REMEDIES – GUIDANCE ON FINANCIAL REMEDIES

Introduction

If the Department has caused injustice or hardship because of maladministration or service failure, it should consider: a. Providing remedies so that, as far as possible, it restores the wronged party to the position that they would have been in had things been done correctly and; b. Whether..policies and procedures need changing to prevent [it] recurring

Where financial remedies are identified as the right approach to service failure, they should be fair, reasonable and proportionate to the damage suffered by those complaining. Financial remedies should not allow recipients to gain a financial advantage over what would have happened if there had not been a service failure [original bold]

Before any individual remedy payments are made, the Department must consult HM Treasury about cases which: a. Fall outside its delegated authority; or b. Raise novel or contentious issues; or c. Could set a potentially expensive precedent or cause repercussions for other public sector organisations.

You are to ensure that financial remedies are granted in accordance with HM Treasury guidelines…JSP 472 Parts 1 and 2 Chapter 12, JSP 462 Chapter 14, Defence Instructions and Notices, and other instructions...

Value of Award

Things to consider when calculating financial compensation: a. Whether a loss has been caused by failure to pay an entitlement; b. Whether someone has faced any additional costs as a result of the action or inaction of the Department - for example, because of delay; c. Whether the process of making the complaint has imposed costs on the person complaining – for example, lost earnings or costs of pursuing the complaint; d. The circumstances of the person complaining - for example, whether the action or inaction of the Department has caused knock on effects or hardship; e. Whether the damage is likely to persist for some time; f. Whether any financial remedy would be taxable when paid to the complainant; g. Any income earned by the complainant during the period covered by the complaint must be deducted from the proposed financial remedy. For this reason, evidence of civilian earnings, tax and national insurance payments must be provided before a final sum can be arrived at.

Payment for non-financial loss is not within MOD’s delegation. [Original Bold] Compensation for non-financial losses are difficult to quantify, such as stress, hurt feelings or inconvenience and are therefore novel and contentious and MOD has no delegations. All cases must go to HM Treasury for approval…and this should happen prior to the complainant being advised.”

“Type D Losses - Claims Waived or Abandoned

Waive or abandonment of a claim occurs where a decision is taken not to present or pursue a claim which could be or has been legitimately made.

Examples of claims waived or abandoned include….c. claims which are actually made but then reduced in negotiations or for policy reasons; d. those where there has been a failure to make a claim or to pursue it to finality – for example, owing to procedural delays which allow the Limitations Acts to be invoked; e. those which arise from actual or believed contractual or other legal obligations which are not met (whether or not pursued)…g. those which are dropped on legal advice, or because the amount of liabilities could not be determined…

Type E2 - Ex-Gratia Payments other than to Contractors

28 . Ex-gratia payments other than to contractors are payments which go beyond administrative rules or for which there is no statutory cover or legal liability. Reasons for this type of ex-gratia payment vary widely but include; a. payments made to meet hardship caused through official failure or delay. b. out of court settlements to avoid legal action on grounds of official inadequacy. A claim which is statute-barred but where, after considering the claimant's representations, it is decided not to invoke the Limitation Acts…. must be dealt with as an ex- gratia payment.

Any ex-gratia payments to individuals for stress and inconvenience will always be novel and contentious, irrespective of whether MOD has made similar payments before, and require HMT [i.e. HM Treasury] approval….

33 . Where financial remedies are identified as the right approach to service failure, they should be fair, reasonable and proportionate to the damage suffered by those complaining. Financial remedies should not allow recipients to gain a financial advantage over what would have happened if there had not been a service failure.

Type E3 - Compensation Payments

Compensation payments are payments, outside statutory schemes or contracts, to provide redress for personal injuries (except for payments under the Civil Service Injury Benefits Scheme), traffic accidents, damage to property etc, suffered by civil servants or others. Compensation for stress, inconvenience etc are Type E2 .

Type E4 - Extra-Statutory Payments and Extra-Regulatory Payments

Extra-statutory payments and extra-regulatory payments are payments made within the broad intention of the statute or regulation but which go beyond a strict interpretation of its terms.

Type E5 - Special Severance Payments

Special severance payments made to employees, contractors and others who leave employment in public service, whether by resigning, being dismissed or as the result of termination of contract go beyond normal statutory or contractual requirements. The payments are directly related to the reason the person left employment in public service . They are only permitted on an exceptional basis and always require HMT approval. Legal advice that a particular severance payment appears to offer good value for money for the Department may not be conclusive, as it may not be based on wider public interest.”

These categories are summarised in a table in Part 1 of JSP 472, which provides that the MoD delegated authority limit for Types D, E2, E3 and E4 is £250,000, whereas (as Type E5 explicitly states) there is no delegated authority for Type E5. Whilst Annex A in 2021 still specifically referred to JSP 472 archived in 2016, I was also referred to more recent more generic Treasury guidance, which re-iterates many of the same themes which I need not fully repeat. For example, it states:

“SCOAF can recommend payments as either quantifiable or non-quantifiable redress.

Quantifiable consolatory payments

In cases of direct redress there will be a financial loss which can be calculated in monetary terms, with the amount owing clearly determined. This may be a direct financial loss or the monetary value of a lost service. If a direct redress payment can be made to remedy a quantifiable loss, then this will be recommended. Effectively, this will generally be a reimbursement of money owed which can be paid via the existing Service pay and allowances process….Examples of such redress include, but are not limited to: - Payment of an allowance owed - Back payment of salary at a higher rate - Payment of training courses undertaken as part of transition for example from Service life to civilian. The Ombudsman does not have the power to recommend payment of compensation for negligence. Accordingly claims for personal injury or clinical negligence are legal issues which must be pursued separately through the courts.

Non-quantifiable consolatory payments

In cases of indirect redress, the loss is not financial and therefore the amount owed cannot be readily calculated or valued in monetary terms, for example distress caused by failures in the complaint process. In these instances….SCOAF will state at which level (low, medium or high) the payment should be made and give reasons for the selection of that bracket.

Financial redress that is not associated with a monetary loss may be recommended where: - The complainant is found to have suffered obvious distress or injury to feelings - There is no specific action that can be taken to fully remedy the wrong/injustice - The complainant lost a benefit that had a non-monetary value, such as lost opportunity - Where there has been delay that is unjustified and wholly excessive in the circumstances. Please note these are examples only not a definitive list. Such recommendations may be considered ‘novel and contentious payments’ and require approval from HM Treasury.

It is not always easy to quantify such losses and there is no fixed assessment to undertake. Distress and ‘time and trouble’ are two types of injustice where an indirect redress payment may need to be considered. Where the loss is a benefit or opportunity that has no clear monetary value, the starting point within the redress scale set out below, is the extent of distress or injury to feelings found to be experienced by the complainant as a consequence of the subject matter of the complaint. In most cases there would be no test and a broad reasonable assessment will need to be made based on the evidence provided in an impact statement.”

“Low £500-£1000

These types of injustice are where we consider that an apology alone is not sufficient remedy. For example: • The complainant experienced a low level of obvious distress, worry and/or anxiety, combined with prolonged undue delay as a result of maladministration. Examples: • The complainant experienced sleepless nights caused by the delay • The complainant demonstrated that they experienced obvious distress and/or anxiety, which has impacted on their family/work life • Lack of contact/updates from the Service and/or explanation for delay, which caused the complainant obvious distress and/or anxiety.

Moderate £1000-£2000

These types of injustice would have a moderate impact, for example obvious distress, worry, anxiety, which has to some extent affected the complainant’s ability to lead a normal life over a significant period of time. For example: • The complainant experienced a significant level of obvious distress, worry and/or anxiety • Undue delay in resolving a Service complaint which has led to uncertainty or financial hardship • Stress and/or anxiety caused by undue delay and/or poor administration (and/or poor communication) which has resulted in the complainant being unable to perform at the expected standard • Stress and/or anxiety which impacts on work and/or home life. (Examples): • Where a complainant has been wrongfully discharged which resulted in unemployment and SCOAF found the original redress was insufficient and did not factor in the impact of this on the complainant • Stress and anxiety as a result of bullying and/or harassment (otherwise than for “protected characteristics” within the Equality Act 2010), where the original redress wasn’t deemed sufficient or didn’t factor in this impact on the complainant….

High £2000-£3000

This level of redress will be where the injustice has severely impacted on the complainant’s ability to lead a relatively normal life to some extent over a prolonged period of time. Where the effects of the wrong complained about are ongoing and award in this bracket may be warranted. • The complainant experienced a very significant level of obvious distress, worry and/or anxiety • Significant and/or prolonged financial hardship • Exceptionally poor complaint handling over several years including multiple examples of maladministration and/or significant unnecessary delays • Significant distress lasting over 3 months • Significant impact on the health of the complainant • Significant impact on work and/or home life • Failures by the Service in their duty of care to the complainant during the Service complaint process Examples: • Serious bullying and harassment for reasons unconnected to any “protected Characteristic” as defined in the Equality Act 2010. • Very serious undue delay in the handling of a service complaint with lengthy periods of inactivity

Exceptional circumstances: There may be occasions, albeit rare, when a redress payment will exceed the scales outlined above. In these instances the single Services and/or SCOAF will make it clear in the recommendation that this is the expectation by referencing the Vento scale, for example, in complaints even where no breach of the Equality Act 2010 is established.

Nothing in this guidance prevents the consideration and recommendation of ‘Vento’ payments in Service Complaints where a breach of the Equality Act 2010 has been established.”

“37 It is argued that where there has been an appeal and a review by an independent panel, earlier procedural or substantive errors are fully capable of being cured by that subsequent appeal. Reference is made to paras 5.51 -55 and 5.59 in Auburn, Moffett and Sharland, Judicial Review: Principles and Procedure (2013). As is said at para 5.51, the correct analysis is that, because of the appeal or review process, the procedure as a whole is fair and therefore there is no unfairness requiring a cure. It is said at para 5.52 that where there has been a fair appeal before an appellate decision-maker which considered the case afresh, heard all relevant evidence and redetermined the merits of the case, it is difficult to see how the ultimate decision could be impugned on the basis of any unfairness arising during the decision-making process leading up to the initial decision, unless that unfairness infected the ultimate decision in some real sense.

38 In Calvin v Carr [1980] AC 574 (HL), it was held that, following an initial decision by racing stewards who adopted an unfair procedure, followed by an appeal to a committee, where the appeal was conducted by way of rehearing de novo and involved hearing all the witnesses who had given evidence to the stewards, and cross-examination of those witnesses, the overall decision-making process was fair, despite flaws in the procedure adopted by the stewards.

39 It is said at para 5.54 [of Auburn, Moffett and Sharland] that where the appeal does not involve a full rehearing, such as an appeal restricted to consideration of whether there has been an error of procedure or law, or where the appellate decision-maker is bound by findings of fact made by the initial decision-maker, it is more likely that unfairness arising in the decision-making process leading up to the initial decision will render the overall procedure unfair. In para 5.59 it is said that where an appeal against, or review of, a decision is available, the courts will usually regard it as an adequate alternative remedy justifying the refusal of permission to apply for judicial review…..The availability of an adequate alternative remedy is a matter that is relevant to the exercise of the court’s discretion to grant permission to apply for judicial review; it does not go to the jurisdiction to entertain a claim for judicial review…

40 On behalf of the claimant it is argued that this was not a curative appeal because the CCG was not obliged to implement the IRP’s decision, but… the Regulations provide that the CCG must implement the decision of the review panel as soon as possible, unless there are exceptional circumstances. No such exceptional circumstances have been identified.

41 I consider that the defendant’s argument is to be preferred. The hearing before the IRP was a full hearing, including a careful and thorough evaluation of the evidence and submissions and concluding that the decision was sound. The IRP noted that its process can only be used where a person is dissatisfied with the procedure followed in reaching a decision as to their eligibility for NHS continuing healthcare or with the primary health need decision. This covers the issues of challenge in these proceedings. In so far as it is argued that the same errors infect the decision of the IRP as that of the CCG, that in no sense deflects the argument that the former was the proper target. Accordingly, and bearing in mind that judicial review is discretionary only, I refuse relief on the basis that any challenge should have been to the decision of the IRP, not the defendant...”

“Having reviewed the key documents I find that there is no reasonable prospect that a new investigation would result in a different outcome…. The DB and Appeal Body appear to have investigated the substantive matters reasonably and found that you were wronged by the poor handling of the Service Complaints in which you were the respondent. Financial redress was awarded in recognition of the distress, worry and anxiety caused as the result of the maladministration….Based on the available information, SCOAF will not be able to provide the redress you are seeking from an investigation. We cannot 'quash' the Appeal Body's determination or financial redress offer and recommend that a new Appeal Body consider the matter afresh. We also cannot recommend financial redress in relation to potential loss of earnings or for 'constructive dismissal’.”

I maintain my view when granting permission – that unlike in R(Gossip) and Calvin where the original decision had effectively been superseded by a re-hearing or full merits appeal, that did not happen here as the Ombudsman refused to investigate, so this principle cannot assist the Defendant. It also means of course that the proper ‘target’ of the judicial review claim is the AB’s decision not the DB’s decision since the AB did conduct a rehearing, but the AB is the target anyway. There is a difference between Mr Talalay’s points that the Claimants firstly ‘could’ and secondly ‘should’ have challenged the Ombudsman. As I have explained, I do not accept that the Claimants ‘should’ have done so in the sense that relief should be declined if their claims are otherwise meritorious. However, I do accept the Claimants ‘could’ have challenged the Ombudsman’s decision – it is just they have chosen only to challenge the AB. If anything, as I will explain, the Ombudsman’s decision raises the key issue of principle more clearly than the AB’s decision did and indeed the Defendant here has adopted that point, which I will now consider.

“We concur with the DB there is clear maladministration demonstrated throughout the original SCs against you, however, we have found this had not caused [First Claimant: ‘significant damage’; Second Claimant: ‘irretrievable damage’] to your career. Further we also concluded it was not reasonable for you to believe that you had no choice other than to leave the RAF under these circumstances. As such, the claim for loss of earnings etc covered within your appeal is not considered further. Nevertheless, we have proposed a financial award to acknowledge the distress, worry and anxiety caused to you as a result of the maladministration.” (my emphasis)

Whilst the Ombudsman was declaring in principle she could not recommend financial redress for potential loss of earnings or ‘constructive dismissal’, the AB was saying it would not do so because it was ‘not reasonable for the Claimants to believe they had no choice other than to leave the RAF under these circumstances’ (the ‘reasonableness issue’). I decide whether the AB’s approach was lawful below.

“We were aware that the armed forces are exempt from legislation which allows personnel to submit claims to the Employment Tribunal [‘ET’] for unfair/constructive dismissal (section 192 Employment Rights Act 1996). The Claimant[s] stated in [their] appeals that [they] had been ‘(effectively) constructively dismissed’ and the financial award should include an award for loss of earnings/pension. However, the armed forces are exempt from the Employment Rights Act 1996, so this particular case is not a constructive (unfair) dismissal situation. For an AB (or DB) to make a financial award which mimicked what an ET would award in such a case would be circumventing that exemption and we were advised against attempting it. Equally, when courts make such awards, they are looking largely at the breach of contract (and service personnel do not have contracts) and the calculations the courts conduct can be extremely complicated. Injury to feelings awards may be considered by the ET but they do not naturally fall from the breach of contract and personal injury is separate again from any constructive dismissal claim. Personal injury is equally excluded from being the subject of a SC. As such, even if we had upheld HoC 2, a financial award in the same category in the SCOAF Financial Remedies Guidelines would have been advised: unquantifiable maladministration award using the SCOAF guidance as a guide.”

Despite that, Mr Talalay conceded that DBs and ABs can award ‘post-termination losses’ (including ‘post-resignation losses’). However, given the views expressed in this case by the Ombudsman and Gp Capt Page, I should explain why I agree.

Firstly, whether the concept of ‘appropriate redress’ under s.340C AFA and Regs.9/13 SC Regs can include ‘post-termination losses’ and if so, whether both post-discharge losses and post-resignation losses (‘the redress issue’);

If so, whether ‘post-termination losses’ (of either kind) fall ‘within the authority’ of DBs and ABs who uphold complaints (‘the authority issue’);

If so, whether post-termination losses caused by ‘stress’ can be awarded as a ‘quantifiable payment’ or only as part of a ‘non-quantifiable payment’ under the Defendant’s policies (‘the stress issue’).

“The test…calls for a comparison of what the relevant law requires and what a policy statement says regarding what a person should do. If the policy directs [a decision-maker] to act in a way which contradicts the law, it is unlawful. The courts are well placed to make a comparison of normative statements in the law and in the policy, as objectively construed.”

“13(2)(b)…[I]f the [AB’s] determination is that the complaint is well-founded—(i) determine what redress (if any), within the authority of the…[AB]…. would be appropriate; and (ii) grant any such redress.”

The only limitations are what the DB/AB decide is (i) ‘appropriate’ ‘redress’ (if any) for the ‘well-founded complaint’; and (ii) such ‘redress’ is ‘within authority’. The statutory framework does not exclude compensation from ‘appropriate redress’ - before or after termination. Whether that is ‘appropriate redress’ to ‘grant’ is left entirely to the DB or AB, provided it is ‘within their authority’.

Firstly, whilst ‘redress’ is not defined by the statutory framework, the Oxford English Dictionary definition of the noun (not the verb) ‘redress’ is: ‘reparation or compensation for a wrong or consequent loss’.

Secondly, whilst ‘granting appropriate redress’ is undefined, the concept of the decision-maker’s ‘authority’ is carefully regulated. Not only s.350C(3) and s.340D(4) but also s.340F AFA together require the Defence Council to authorise the DB or AB ‘to grant appropriate redress’. However, the Defence Council can restrict this through the mechanism of ‘authority’.

Thirdly, the Explanatory Notes to the Armed Forces (Service Complaints and Financial Assistance) Act 2015 which overhauled the SC process explained at para.5 that the changes ‘includes making the system more streamlined with only one appeal’, but then SCOAF. Previously, the process could be cumbersome as in R(Clayton) v Defence Council [2014] ACD 110 where due to lack of authority to promote a complainant, a service complaint was escalated through three levels. Under Regs.9/12 SC Regs 2015, the statutory scope of ‘redress’ (if not ‘authority’) is the same for DBs and ABs.

If the Ombudsman finds a complaint that she has reinvestigated under s.340H(1)(a) AFA to be well-founded, s.340L(2)(a) AFA empowers her to make ‘recommendations (if any) on what redress would be appropriate’, without limitation of ‘authority’. However, because her recommendations are not binding under s.340M AFA, the Defence Council need not accept them. The SCOAF Guidance also says that HM Treasury has to approve Ombudsman financial redress outside MOD’s delegated authority. So, the Ombudsman was correct to say she cannot ‘quash’ an AB’s determination on redress and require it to be reconsidered. However, as the Explanatory Notes to s.340L and 340M AFA say, the Defence Council’s response could be ‘reconsideration of the complaint in the light of the recommendations’. Yet there is no limitation on what ‘appropriate redress’ the Ombudsman can recommend under s.340L AFA, including loss of earnings (albeit her guidance limits awards to MoD delegated authority). The Ombudsman may have meant she could not award financial compensation for loss of earnings.

However, ss.340L(2)(b) and (3)(b) AFA are different: they state where the Ombudsman finds an allegation of maladministration or undue delay of a service complaint well-founded, she may make recommendations, including those ‘for the purpose of remedying the maladministration or undue delay or any consequent injustice sustained by the complainant’. The word ‘redress’ does not appear and so this power may well be narrower. However, the Claimant’s complaints to the Ombudsman were not about maladministration and undue delay by the DB and AB, but about redress.

“[I]s it the position that a serviceman, selected for redundancy when he should not have been and dismissed from the army, has no remedy or recourse to the courts at all ? Were that the case, issues might arise under the Human Rights Act 1998 [‘HRA’] and rights protected by Art.6 European Convention of Human Rights [‘ECHR’]. The answer is no…. [S]oldiers may bring an application for judicial review. Thus, in R(Wildbur) v MOD [2016] EWHC 1636 (Admin) Langstaff J entertained an application for judicial review arising out of the applicant’s selection for redundancy..”

I referred Counsel to Malone and R(Wildbur) as both suggested ‘appropriate redress’ for a service complaint could potentially include post-termination losses.

“If the appropriate person decides that the complaint is well-founded, he must (a) decide what redress (if any), within his authority, would be appropriate; and (b) grant any such redress.”

In R(Wildbur), an Army Captain who was highly likely to be promoted to Major was wrongly selected for redundancy in 2011. He brought a service complaint seeking not reinstatement, but loss of earnings on the basis of promotion until the end of his commission. When his SC was upheld 2½ years later, the DB offered him as redress the choice of reinstatement (which he declined) or his loss of earnings until that point but no further (but which still included post-termination loss of earnings). Langstaff J dismissed his claim for judicial review, saying at [19]-[20]:

“As identified by Silber J in Molaudi, the purpose of the statutory scheme is to ensure complaints of discrimination are in the first instance determined by a body deemed by the legislature to be the appropriate body for resolving such disputes, with the ET dealing with the matter at the next stage…”

The statutory purpose must be for the DB or AB if upholding a discrimination claim to ‘resolve’ it by awarding full compensation - not just for ‘injury to feelings’ (see Vento v CCWYP [2003] ICR 318 (CA) noted in the Ombudsman’s guidance which Gp Capt Page says is applied), but also post-termination losses as in Vento and Shittu. Yet ‘appropriate redress’ under s.340C AFA and Regs 9/13 SC Regs does not distinguish between discrimination and non-discrimination. If wide enough for future losses for the former, it should follow that it is wide enough for them for the latter.

“Members of the armed forces have no contract of employment and no system of collective bargaining…and historically the rights of service personnel to bring legal claims against the Crown are also limited. It has therefore long been recognised that members of the armed forces should have some other effective way of obtaining redress for grievances.”

Indeed, as Mr Dingle spotted, in Malone the Defendant itself submitted (see [16]):

Courts and Employment Tribunals are ‘independent and impartial tribunals’ under Art.6 ECHR (Tariq v Home Office [2011] ICR 938 (SC)). The service complaint process is not and does not generally engage Art.6 ((R(Crosbie)).

Courts and Employment Tribunals only adjudicate legal claims. Service complaints exclude certain legal claims (i.e. personal injury / clinical negligence) but include complaints that an individual has been ‘wronged’. Those do not necessarily involve the commission of a legal wrong such as a tort and so would not be justiciable in Courts and Employment Tribunals.

Courts and Employment Tribunals award compensation under common law principles (albeit modified by statute e.g. with unfair dismissal: Shittu). By contrast, ‘well-founded service complaints’ can be granted ‘appropriate redress’ determined by the DB or AB subject to rationality (R(Wildbur)).

As Mr Dingle says, the service complaint process is a free-standing regime to redress wrongs affecting servicepeople. But it is different from the Employment Tribunal, not a ‘substitute’, still less does it ‘mimic’ Tribunal awards. That would be a non-sequitur: awarding compensation appropriate for a common law claim when there was and could be no such claim. So, even where post-termination losses may be ‘appropriate redress’, it may well be rational not to use the Ogden Tables nor award speculative ‘losses of chance’. In R(Wildbur) itself, it was held rational not to award future losses given the reinstatement offer without any failure to mitigate (see e.g. [27]). That said, as discussed below, there are useful analogies.

“30…[I]n R (WL(Congo)) v SSHD [2012] 1 AC 245 [also known as R(Lumba)]….Lord Dyson JSC said…at para 35: “The individual has a basic public law right to have his or her case considered under whatever policy the executive sees fit to adopt provided that the adopted policy is a lawful exercise of the discretion conferred by the statute’…..

31 But, in in WL(Congo), Lord Dyson JSC had articulated two qualifications. He had said, at para 21: “it is a well-established principle of public law that a policy should not be so rigid as to amount to a fetter on the discretion of decision-makers’. But there was ample flexibility in the process instruction to save it from amounting to a fetter on the discretion of the caseworkers. Lord Dyson JSC also said, at para 26, ‘a decision-maker must follow his published policy . . . unless there are good reasons for not doing so’. But the SSHD does not argue that there were good reasons for not following the process instruction…Her argument is instead that, properly interpreted, the process instruction did not require the caseworker to alert Mr Mandalia to the deficit in his evidence before refusing his application. So, the search is for the proper interpretation of the process instruction, no more and no less. [I]t is now clear…interpretation is a matter of law which the court must therefore decide for itself: R(SK (Zimbabwe)) v SSHD [2011] 1 WLR 1299 , para 36…Previous suggestions that the courts should adopt the Secretary of State’s own interpretation of her immigration policies unless it is unreasonable….are therefore inaccurate.”

Firstly and primarily, ABs are authorised to grant ‘non-financial remedy including but not limited to remedies relating to terms and conditions of service’. That authority is quite general and on the face of it could include adjusting terms and conditions and ‘back-dating promotion’ – Annex A para.14). As Mr Dingle said, ‘service complaints’ range from the trivial (e.g. missing kit) to the extremely serious. For very many complaints, ‘appropriate redress’ will be entirely or primarily non-financial. That underlines Langstaff J’s point in R(Wildbur) that service complaints have a closer analogy to a grievance procedure than to Court or Tribunal litigation.

Secondly however, this does not mean the service complaint process cannot itself offer substantial ‘financial redress’. In R(Wildbur) itself, the DB offered reinstatement or post-redundancy back pay up to the hearing and there was no suggestion this was not ‘within its authority’. Under Annex A paras. 9 and 12 ABs are authorised to grant ‘financial remedy’, albeit limited to payments of no more than £250,000 within Category D and Category E2 payments. Para.12 Annex A incorporates by reference JSP 472 Part 2 Chapter 12 paras.21 and 28. These respectively describe (i) Category D ‘payments for claims waived or abandoned’ such as claims dropped on legal advice; and (ii) Category E2, which I repeat so far as material:

Those types of ‘pre-authorised redress’ do not limit what ABs can ‘grant as appropriate redress’, only circumscribe its delegated ‘authority’: i.e. what can be granted without specific ‘authorisation’. ‘Non-quantifiable payments’ are not mentioned in Annex A para.9, as they need specific authorisation: Annex B para.6.

“Special severance payments made to employees, contractors and others who leave employment in public service…whether by resigning, being dismissed or as the result of termination of contract…go beyond normal statutory or contractual requirements. The payments are directly related to the reason the person left employment in public service. They are only permitted on an exceptional basis and always require HMT approval…”

However, it was not suggested by the Defendant that E5 applied to either Claimant. In my judgement that reflects that Category E5 does not apply to service complaint ‘redress’ (unlike other parts of JSP 472, it is not referred to in Annex A one would have expected if it was a limitation). I have also underlined ‘employment’ and ‘termination of contract’ because they show this category is for those ‘employed’ (including at the Defendant, e.g. in the many civilian roles). This is borne out by the description in the table in JSP 472 Part 1 of Category E5 as ‘payments made to an individual who leaves…employment’. ‘Servicepeople’ are neither ‘employees’ nor ‘contractors’ (Malone), nor are they ‘others who leave employment in public service’ – which is more likely a reference to ‘locums’ supplied by agencies. Moreover, ‘severance payments’ in employment law terms are usually ex gratia payments made by agreement on termination by ‘compromise agreements’ (the larger ones colloquially known as ‘Golden Parachutes’ can be controversial see e.g. Gibb v Maidstone NHS [2010] IRLR 786 (CA)) ‘Appropriate redress’ granted under statute for a service complaint is not a ‘severance payment’.

“33….MOD does not however have delegated authority from HM Treasury to decide on the value of a financial award to be paid in cases where the decision in the Service Complaints process is that a financial award should be paid as redress for delay, injury to feelings, stress, inconvenience caused, damage to reputation or any other such finding. This is because the amount to be awarded is not measurable - it would for example be measurable if it were found that an allowance should have been paid - and is therefore difficult to determine. The value is subjective, and HM Treasury considers such payments to be ‘novel and contentious’ in terms of spending public money and so their approval is required as to the sum to be awarded.”

Where unquantifiable awards of this nature are considered to…form part of, appropriate redress in the view of the AB, you will have to pause ..and seek Treasury approval….for an appropriate sum…” (my emphasis)

The First Claimant’s appeal statement said that:

The Second Claimant does not have such a clear finding from the DB (why he is second), but the DB did accept he ‘experienced a very significant level of obvious distress’. The Second Claimant added in his appeal statement:

“The threshold question is whether this kind of harm to this particular employee was reasonably foreseeable: this has two components: (a) an injury to health (as distinct from occupational stress) which (b) is attributable to stress at work (as distinct from other factors).”

Likewise, tort draws a distinction between ‘psychiatric injury’ which is ‘actionable damage’ and ‘stress’ and ‘anxiety’ about the development of an ‘injury’, which is not: Grieves v Everard [2007] 3 WLR 876 (HL). (Grieves at [24] also endorsed the approach in Hatton for the employer’s duty of care over psychiatric injury – save in cases of risk of physical injury or illness: see Yapp at [117]-[118]). This distinction between the normal emotion of ‘stress’ (as a feeling of pressure, strain or tension in response to a situation) and abnormal injury to health is also reflected in the distinction in discrimination compensation between ‘psychiatric injury’ -and ‘injury to feelings’ as explained in Vento at [63]. Since in in JSP 831 para.33, ‘stress’ is listed alongside such ‘injury to feelings’ (as well as other ‘non-injury’ concepts like ‘inconvenience’ and ‘damage to reputation’), applying the approach in Mandalia, ‘stress’ in para.33 plainly should be interpreted as ‘an emotion not an injury’.

“Whilst….a claim for personal injury had formed no part of the Service Complaint, that did not mean that the existence of any injury and/or the observations of the treating medic were irrelevant to the issues which did fall within that complaint. For example….the nature and extent of any injury caused (whether physical or mental) would be of relevance to the characterisation and gravity of the conduct in question …..In my judgment, the Appeal Body erroneously put from its mind matters which went to the cause and extent of any personal injury, considering them to be incapable of consideration under the service complaint process and/or more pertinent to personal injury proceedings and/or a claim under the AFCS. It formed such a view as a product of its erroneous belief that matters within the Service Complaint which were, or were capable of being, the subject of a claim for personal injury against the Ministry of Defence were excluded.”

“[T]he assessment of damages for non-pecuniary loss is a very different matter from assessment of damages for pecuniary loss. There is no way of measuring in money pain, suffering, loss of amenities, loss of expectation of life. All that the court can do is to make an award of fair compensation. ….The judge, inheriting the function of the jury, must make an assessment which in the particular case he thinks fair: and, if his assessment be based on correct principle and a correct understanding of the facts, it is not to be challenged unless it can be demonstrated to be wholly erroneous…But, when a judge is assessing damages for pecuniary loss, the principle of full compensation can properly be applied. Indeed, anything else would be inconsistent with the general rule which Lord Blackburn has formulated:

“If the Department has caused injustice or hardship because of maladministration or service failure, it should consider: a. Providing remedies so that, as far as possible, it restores the wronged party to the position that they would have been in had things been done correctly…”

Whilst this principle is inconsistent with Mr Talalay’s submission that ‘redress’ for stress is limited to a non-quantifiable payment even if it has also caused financial loss, as I have explained, this does not mean loss is assessed on the tortious basis. Indeed, neither a non-quantifiable nor quantifiable payment for ‘stress’ could be granted without Treasury approval (see Annex B para.6 and JSP 472 para. 29). Likewise, if ‘damage to reputation’ causes both upset and financial loss which an AB consider should be compensated as ‘appropriate redress’, then again both can be compensated (it is not so clear that financial loss requires Treasury approval).

“A perennial challenge…is to achieve consistency in decision-making while reaching decisions which are appropriate to the case in hand. The solution generally lies in the adoption of administrative policies to guide decision-making: something which the courts have accepted is legitimate, provided two general requirements are met. First, discretionary powers must be exercised in accordance with any policy or guidance indicated by Parliament in the relevant legislation: Padfield v Minister of Agriculture, [1968] AC 997…. Secondly, decision-makers should not shut their ears to claims falling outside the policies they have adopted: British Oxygen Co Ltd v Minister of Technology [1971] AC 610….”

“We concur with the DB there is clear maladministration demonstrated throughout the original SCs against you, however, we have found this had not caused [First Claimant: ‘significant damage’; Second Claimant: ‘irretrievable damage’] to your career. Further we also concluded it was not reasonable for you to believe that you had no choice other than to leave the RAF under these circumstances. As such, the claim for loss of earnings etc covered within your appeal is not considered further. Nevertheless, we have proposed a financial award to acknowledge the distress, worry and anxiety caused to you as a result of the maladministration.” (my emphasis)

Therefore, in both these cases, the AB plainly refused to award post-resignation losses due to the ‘reasonableness’ issue, not any unlawful misconstruction or restriction related to ‘stress’ etc. So, in argument Mr Dingle skilfully ‘re-framed’ Ground 6 to argue that the AB erred in law by failing to make a ‘quantifiable payment’ because it applied the wrong legal test – i.e. a test of ‘reasonableness’.

“[The]…maladministration….had not caused [First Claimant: ‘significant damage’; Second Claimant: ‘irretrievable damage’] to your career. [W]e also concluded it was not reasonable for you to believe that you had no choice other than to leave the RAF under these circumstances. As such, the claim for loss of earnings etc covered within your appeal is not considered.”

Whilst Grounds 1-6 all attack this analysis of the AB, they boil down to three broad topics. The second and third topic relate to alleged procedural unfairness of (i) reaching this conclusion without an oral hearing (‘the oral hearing issue’ – which is Ground 1); and then (ii) reaching this conclusion without fair warning and opportunity to make representations on it (the ‘fair warning issue’ – which is the ‘procedural’ dimension to the overlapping Grounds 2-5). I consider below those and Mr Talalay’s procedural ‘no substantial difference’ points about them.

“I believe the way that I have been treated has caused significant damage to my career and promotion prospects and that my reputation has been tarnished due to the way the complaints have been mishandled…”

As discussed earlier, the DB teased out the First Claimant’s complaints into three ‘heads of complaint’ (‘HoCs’) and picked up that allegation as the second HoC:

The DB upheld HOC2 for the First Claimant in the 8^th June 2022 decision:

Yet in the redress letter of 20^th July, the last point was diluted (my emphasis):

This is why in the AB’s decision letter of 28^th February 2023 said (my emphasis):

“Although I had expected to serve the next 14 or 15 yrs in the RAF, for the sake of my mental health I felt I had no choice but to Early Terminate….. The SCs still had not reached a conclusion but I felt I had no choice if I was to get an improvement in my mental health.”

As part of its own reinvestigation, the AB obtained the First Claimant’s appraisals (‘SJAR’s). The AB’s investigator Sq Ldr Pollock also contacted the ‘career manager’ Sgt Davis who commented that her SJARs had been positive with a ‘High’ promotion recommendation. However, he added that she had said in her early termination application that she was ‘disillusioned with service life’ and whilst he tried to retain her in service, there were no assignment options for her at that time and so she left in February 2022. The First Claimant was sent this information and she specifically highlighted in response the high scores on her SJARs and did not contradict her positive promotion prospects. Notably, whilst the First Claimant applied for ‘Early Termination’ (i.e. tendered her resignation) before her the service complaints against her were concluded, they did conclude and she then brought her own service complaint before she left. Therefore, by that time, she was aware that the actual damage to her career and promotion prospects may not have turned out to be as bad as she may have earlier feared.

“The evidence obtained….demonstrates that you continued to be well thought of by your Chain(s) of Command. This is supported by your last 3 SJARs which clearly identify continuing high performance and solid ‘High’ recommendations for promotion. In addition, the current Career Manager, having assessed these reports states “….It’s entirely possible that had she remained in the Service she may have been promoted on the 2022 PSB… When she reached FAD she would have been employable in any FS post”. It appears, therefore, on the balance of probabilities, that neither your on-going medical condition, nor the ongoing SCs had caused ‘significant damage to your career and promotion prospects’. Further, the outcome of these SCs was that only one HoC was upheld in the [first SC against you] and 2 within the [second] the findings from which were not career limiting. We also conclude, therefore, that it was not reasonable for you to believe you had no choice other than to leave the RAF under these circumstances.

For these reasons, we partially uphold this HoC in that the support you received was inadequate but that it did not cause significant damage to your career and promotion prospects and it did not therefore warrant you leaving the Service…..(original bold)

Having upheld HoC 1 and partially upheld HoC 2 and HoC 3, we have considered the redress you sought in your SC and those within our delegated powers to grant. We concur with the DB that there is clear maladministration demonstrated throughout the original SCs against you, however, we have found that this had not caused significant damage to your career. Further, we also concluded that it was not reasonable for you to believe that you had no choice other than to leave the RAF under these circumstances. As such, the claim for loss of earnings etc covered within your appeal is not considered further. Nevertheless, we have proposed a financial award to acknowledge the distress, worry and anxiety caused to you as a result of the maladministration.”

Firstly, the contention that the First Claimant had suffered ‘significant damage to her career and promotion prospects’ came from her own service complaint. Moreover, the contention that ‘she had no choice but to early terminate’ (i.e. resign) came from her own appeal statement. She linked both to her being signed off sick with work-related stress and her total lack of trust in the complaints system, which led her to resign from the RAF.

Secondly, the First Claimant’s contention was incorporated by the DB into ‘HOC 2’ which it upheld, including the contention of significant damage on career prospects, based on her medical downgrading.

However, in the redress decision, the DB diluted that finding of ‘significant damage’ to one where the medical downgrading ‘had implications’ for her career prospects. Moreover, there was no reference in either of the DB’s decisions to any objective evidence for any ‘damage’ to career prospects other than the fact of medical downgrading, such as SJARs.

When the AB obtained that career evidence – and the First Claimant’s comments on it, they considered it did not show ‘significant damage’ to her career. Therefore, on the basis of a rather different evidential picture, the AB only partially upheld HOC 2, finding the First Claimant had not been adequately supported, but rejecting her contention that it caused significant damage to her career and promotion prospects. This was essentially a conclusion of fact which the AB reached, namely whether or not the failings had caused the First Claimant ‘significant career damage’.

Finally, the AB built on this ‘no significant career damage conclusion’ to reach consequential conclusions, which were evaluative rather than factual, that it expressed in three different ways I will emphasise:

Firstly, the contention that ‘policy was not appropriately applied causing irretrievable damage to the Second Claimant’s military career’ once again came from the Second Claimant’s own service complaint. Likewise, the contention that he ‘had no choice but to leave for the good of my mental health and wellbeing’ came from his own appeal statement.

Secondly, the DB did not accept the ‘irretrievable damage’ point, it said:

However, as with the First Claimant, when the AB investigated the ‘damage’ to the Second Claimant’s career, again it made a factual decision:

Moreover, the AB relied on a distinct feature of the Second Claimant’s case - his resignation before the SC against him was completed - and concluded:

Finally, the AB built on its ‘no irretrievable career damage conclusion’ to reach an evaluative consequential conclusion in the same three ways:

“[W]e have found [the maladministration etc] had not caused [First Claimant: ‘significant damage’; Second Claimant: ‘irretrievable damage’] to your career. Further we also concluded it was not reasonable for you to believe that you had no choice other than to leave the RAF under these circumstances. As such, the claim for loss of earnings etc covered within your appeal is not considered further. Nevertheless, we have proposed a financial award to acknowledge the distress, worry and anxiety caused…”

“The AB’s thinking was flawed. The effect on a person of unfairness, of stress and of years of delay is not a matter for objective analysis. The effects should be considered subjectively as every individual will react differently to circumstances. Yet here, the AB had commissioned an objective analysis. The career manager providing the objective assessment did not know [the Claimants] and had not spoken to [them]….. The task of the AB was to consider whether [they] had been treated unfairly, which it so found; then to go on to consider what that unfairness had on the balance of probabilities caused. In tort, it is the ‘eggshell skull principle’: Smith v Leech Brain [1962] 2 QB 405.…Instead, the AB sought to imagine how a notional senior [NCO] ought objectively to have reacted based on the annual appraisals they received without…consider[ing] what it was like to be [the Claimants] in all the circumstances – and put itself into [each of their shoes]. The test that the AB applied is…novel and to the extent that it was exploring the extent that that [the Claimants] mitigated [their loss] (to describe the idea from tortious principles) then [they] should have been heard.”

I consider below whether the Claimants ‘should have been heard’ under the ‘oral hearing’ and ‘fair warning’ issues – what matters for now was whether the AB applied the wrong test. Mr Dingle’s basic point was the AB erred in approaching the issue objectively rather than ‘subjectively’: as he said in his skeleton:

“The rationale of the principle that a novus actus interveniens breaks the chain of causation is fairness. It is not fair to hold a tortfeasor liable, however gross his breach of duty may be, for damage caused to the claimant not by the tortfeasor’s breach of duty but by some independent, supervening cause (which may or may not be tortious) for which the tortfeasor is not responsible. This is not the less where the independent, supervening cause is a voluntary, informed decision taken by the victim as an adult of sound mind making and giving effect to a personal decision about his own future.”

In Corr at [16], Lord Bingham explained that in that case, Mr Corr’s suicide was not such a voluntary act by an adult of sound mind. However, he went on to observe at [17] that conclusion also addressed a distinct but entirely overlapping argument for the employers – that Mr Corr’s suicide was an ‘unreasonable act’:

Indeed, the main case Lord Rodger was referring to in Simmons at [67(2)] for these overlapping principles was McKew v Holland [1970] SC 20 (HL) at pg.25 where Lord Reid said the unreasonable act of a claimant was itself a ‘novus actus interveniens’ breaking the chain of causation. However, that is not so if a resignation is a reasonable response to an employer’s repudiatory breach of contract - the employee’s cause of action survives his own act: c.f. Eastwood at [27]. After I raised Corr, in written submissions Mr Dingle relied on this ‘unreasonable act’ test and submitted it showed that ‘unreasonableness’ did not apply here, especially as the AB had not challenged or investigated their accounts.

“The crucial question is whether, in respect of the period in issue, it is just that she should recover damages from the tortfeasor. If she was at fault in losing her new job, then she will have difficulty in recovering for the period in issue. If she was not at fault, then in general she will recover. The question whether she was at fault is one which in principle the trial judge should resolve bearing in mind that it was the wrongful act of the defendant which put the claimant in the position of having to find a new job and that therefore she should not be judged too harshly.”

By ‘fault’, Scheimann LJ meant what he went on to quote in Morris at [16] that Sachs LJ said in the unreported decision of Melia v Key Terrain (1969) (CA):

The AB’s conclusion that ‘it was not reasonable for you to believe that you had no choice other than to leave the RAF under these circumstances’ is close to – but again not identical to - a ‘mitigation of loss’ approach in tort (or indeed, contract) and as a positive finding, the ‘burden of proof’ is irrelevant (Morris). In short, I do not accept the AB’s ‘reasonableness’ test was ‘novel’ and so wrong.

My task is to determine if the decision which the Panel reached is unlawful. It would be so….if the Panel had misconstrued the statute so as to misapply it; or, if properly construing and applying the statute, it had reached a decision which was Wednesbury unreasonable which, for these purposes, I take as meaning that it took into account a factor which it should not have taken into account or failed to take into account one which it was obliged to; or reached a decision which no reasonable panel in its position could have reached: in other words, a perverse decision, one which, as it has been described in other cases, flies in the face of reality.

The fact a differently composed body may quite reasonably have reached a different result is irrelevant to the question whether this Panel erred….it is of the nature of decisions involving the exercise of judgment that they may very well be made differently by different panels, and most decision-making bodies have a wide range within which a proper decision may be reached even though views may be strongly held on both sides…

As to the statute, the words are….deliberately chosen. The significant words in [then s.334(8) AFA] are ‘redress (if any)’ and ‘appropriate’. It is common ground between the parties that the decision as to whether any and, if so, what ‘redress’ is ‘appropriate’ is for the Panel. No objective standard exists against which to measure it save that it must not be irrational.

As to the word ‘redress’, I accept that it is undoubtedly not limited to financial compensation. It may be wider. It seems to me….that the closest analogy is not that of compensation for such as unfair dismissal or for a tort arising in employment, but probably with the resolution of a grievance procedure operated by an employer within employment. In common with those hearing a grievance, within the powers of management [and] the powers granted to officers….there is a wide range of measures…

The word ‘appropriate’ is a change from a word which I am told was used in [the Army Act 1955 as in R(Crosbie)]; it was then ‘necessary’. It suggests that there must be a clear relationship between the redress which is offered and the wrong which has been suffered. However, it is again a phrase which is wide and which, as I have observed, is at the outset for the decision-making body itself to identify. Provided… the decision is within… the Wednesbury test (as I have expressed it), there can be nothing wrong..”

“We did not disbelieve the First Claimant’s account that her reputation had suffered and we did not seek to challenge her account. However, the objective evidence did not lead us to this conclusion….[and w]e did not think that the [Second] Claimant was wrong in his belief, therefore we did not consider an oral hearing was necessary in the circumstances.”

Therefore, the AB differentiated between the subjective beliefs of the Claimants which it respected and did not challenge and the objective evidence about the situation. That is one reason why it is helpful to differentiate between two of the AB’s conclusions in the challenged passages. The first is what I have called the AB’s ‘factual’ conclusions that the maladministration had not caused ‘significant’ (the First Claimant), still less ‘irretrievable’ (the Second Claimant) damage to their careers. The second is what I have called the AB’s ‘evaluative’ conclusion that ‘it was not reasonable for you to believe that you had no choice other than to leave the RAF under these circumstances’. I will deal with each of those in turn.

“Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious the..body consciously or unconsciously, are acting perversely."

Having said that, the Court can still investigate the existence of facts, as Lord Wilberforce said in Tameside cited by Mitting J in R(Crompton), mentioned above. In summary, if a judgment requires the existence of facts, whilst their evaluation is for the decision-maker, the Court can still inquire whether the facts exist. As a matter of substance, the AB’s factual judgment that maladministration and undue delay etc had not caused ‘significant’ damage to the First Claimant’s career or ‘irretrievable’ damage to the Second Claimant’s career was not only not ‘perverse’, it was plainly right. The objective career information which the AB had obtained was different from the information the DB had before it and entirely justified a different conclusion. (Indeed, the DB itself equivocated in the First Claimant’s case between causation of ‘significant damage to career prospects’ and ‘implications’ for it). The DB had made no mention of the Claimants’ consistently good SJARs and did not make any inquiries of their career manager, Sgt Davis. Since the Claimants’ promotion and career trajectory was in the hands not of themselves but the RAF itself, he was in a more objective and specialised position than they were to understand their own realistic career prospects. He assessed those as remaining good notwithstanding the service complaints against them - that were largely rejected (and ignored by the SJARs).

“Since the decision in the present case is not perverse, the question remains whether in its approach to making it the Panel took into account that which it should not, or left out of account that which it should have considered. Here, the statute does not prescribe any particular procedure which the Panel is required to adopt. It is in that respect, too, analogous to a panel of managers hearing a grievance arising in employment: there is nothing that statute or regulation requires should be taken specifically into account. In Newham LBC v Khatun [2004] EWCA Civ 55…[at [34]] Lord Justice Laws cited…Lord Scarman in Re Findlay [1985] AC 318 (HL) at 333F - 334B: ‘If those challenging the approach of a decision maker could not show some factor which statute or regulation required to be taken into account, they would have to demonstrate ‘matters so obviously material to a decision on a particular project that anything short of direct consideration of them ..... would not be in accordance with the intention of the Act’…..Laws LJ said at [40] that the procedures he was considering in that case, in relation to the making of a decision by a council, were obviously not perfect and observed: ‘...A more intensive fact-gathering exercise would or might well have picked up the problems…’ Nonetheless he concluded that the procedures could not be categorised as inadequate so as to violate the common law standard of rationality’. In short, in determining what other factors might be taken into account, he adopted both an exacting standard in assessing any such violation and a wide margin of discretion.” (my emphasis)

Here, s.340C AFA and Regs,9/13 SC Regs do not require any factor to be taken into account on ‘rationality’ other than ‘appropriate redress’ and ‘authority’, but I bear in mind the statutory purpose to redress complaints of servicepeople who cannot bring non-discrimination claims in the Employment Tribunal. However, the issue is not whether I consider the Claimants’ resignations were reasonable, but whether the AB were rationally entitled to conclude that they were not, even if a different decision-maker might have reached a different view. (Ironically, this is not so very different from the ‘range of reasonableness’ approach to unfair dismissal, also not a perversity test: Foley v Post Office [2000] ICR 1283 (CA)). However, s.31(2A) SCA is very different from unfair dismissal (c.f. Polkey):

However, the expression ‘substantially different’ means what it says, rather than importing any limitation on s.31(2A) SCA to purely ‘procedural’ rather than ‘substantive’ complaints: R(Goring PC) v SODC [2018] 1 WLR 5161 (CA) [47].

Firstly, it was the Second Claimant himself who said he had ‘no choice’ but to leave the RAF in those circumstances. The AB simply decided it was not reasonable for him to believe that in the circumstances. That was partly based on their (rational) finding about career damage. I accept his mental health is a relevant factor to reasonableness which the AB did not specifically mention. However, the AB took that factor into account in the very same paragraph when assessing the non-quantifiable payment and I do not accept they ignored it on ‘reasonableness’ even if not stated explicitly.

Secondly and in any event, the AB also relied on the fact that the Second Claimant had resigned before the service complaint process against him was ongoing. Of course, some decision-makers may have said he was reasonable to leave to improve his mental health, but it was open to the AB to take into account on ‘reasonableness’ his leaving prior to the end of the process, especially as the findings later made ‘were not career limiting’ and the AB’s (rational) finding he did not sustain ‘irretrievable career damage’.

Indeed, even if I am wrong about that, here it does seem that s.31(2A) SCA bites. Even if the AB had not applied a ‘reasonableness’ approach, it is highly likely they would have found on the facts that (i) the Second Claimant had not suffered ‘irretrievable damage to his military career’ as he believed; and that (ii) even making allowances for his mental health, he did still have a legitimate ‘choice’ rather than to resign – i.e. to await the outcome of his service complaint. In those circumstances, I find the AB would still (and rationally) have reached the same conclusion on the Second Claimant’s post-resignation losses. But I emphasise this is only an alternative finding.

“This whole process has been extremely stressful… The way I have been treated has significantly damaged my career and promotion prospects. Before the SCs I was competitive for promotion but in the 3 yr period of the SCs, I was not competitive at all….. As soon as the SCs were finalised I became competitive again. Although I had expected to serve the next 14-15 yrs. in the RAF, for the sake of my mental health I felt that I had no choice but to Early Terminate from the RAF and I submitted by application for ET in July 2021. The SCs still had not reached a conclusion but I felt I had no choice if I was to get an improvement in my mental health.”

Yet in my judgement, whilst it may be that other ABs might not have come to this conclusion, the AB were rationally entitled to find it was not reasonable for her to believe she had no choice other than to leave the RAF in the circumstances:

I dismiss Ground 6 of the Claimants’ challenges to the substance of the AB’s ‘reasonableness’ decision and turn to the procedural challenges in Grounds 1-5.

The hearing does not necessarily have to be an oral hearing in all cases. There is ample authority that decision-making bodies other than courts and bodies whose procedures are laid down by statute, are masters of their own procedure. Provided that they achieve the degree of fairness appropriate to their task it is for them to decide how they will proceed and there is no rule that fairness always requires an oral hearing…Whether an oral hearing is necessary will depend upon the subject matter and circumstances of the particular case and upon the nature of the decision to be made. It will also depend upon whether there are substantial issues of fact which cannot be satisfactorily resolved on the available written evidence. This does not mean that whenever there is a conflict of evidence in the statements taken, an oral hearing must be held to resolve it. Sometimes such a conflict can be resolved merely by the inherent unlikelihood of one version or the other. Sometimes the conflict is not central to the issue for determination and would not justify an oral hearing. Even when such a hearing is necessary, it may only require one or two witnesses to be called and cross-examined…. (3) The opportunity to have the evidence tested by cross-examination is again within the Army Board's discretion. The decision whether to allow it will usually be inseparable from the decision whether to have an oral hearing. The object of the latter will usually be to enable witnesses to be tested in cross-examination, although it would be possible to have an oral hearing simply to hear submissions...”

“22…[In Anderson] observed (also at p.187) that, ‘The Army Board as the forum of last resort, dealing with an individual’s fundamental statutory rights, must by its procedures achieve a high standard of fairness. I would list the principles as follows’ and the passage quoted [(2) above] was then one of those principles. It is not entirely clear whether the Court was intending to limit its enunciated principles to cases where the Army Board was only dealing with fundamental statutory rights. If that was so, then I would agree that the common law has moved on. …This is not to say that the subject matter of the complaint is irrelevant to the question of whether fairness requires an oral hearing.

That apart, the statement in Anderson as to when the common law principles of fairness require an oral hearing has stood the test of time. Thus, for instance, in R (Smith) v Parole Board (No.2) [2004] 1 WLR 421 at [37] Kennedy LJ said that an oral hearing should be ordered where there is a disputed issue of fact which is central to the board’s assessment and which cannot fairly be resolved without hearing oral evidence. The same approach was adopted in R (Thompson) v the Law Society [2004] 1 WLR 2522 (CA).

24.….Despite the Claimant not asking for an oral hearing, the Panel considered whether fairness required one. If they erred in law in answering that question, I would not have thought it right to deprive the Claimant of a remedy because he himself had not raised the matter.”

“There is no dispute that the Appeal Body was not mandated, whether by the regulations or [JSP 831], to receive oral evidence; the issue was a matter for its discretion. But that discretion had to be exercised in an appropriate way. As Clayton makes clear at [20], citing Anderson, whether an oral hearing is necessary will depend upon the subject matter and circumstances of the particular case and upon the nature of the decision to be made. Such a hearing will not be necessary if there is an inherent unlikelihood of one version of events, or where the conflict of evidence is not central to the issue for determination. That is echoed by paragraph 30 of JSP 831: ‘Straightforward cases involving no substantial conflicts of evidence on any material issue or difficult points of law may be less likely to require an oral hearing.’ The corollary of that position was set out in R (Smith) v Parole Board (No.2) (cited at paragraph 23 of Clayton), in which Kennedy LJ stated that an oral hearing should be ordered where there is a disputed issue of fact which is central to the board’s assessment and which cannot fairly be resolved without hearing oral evidence. Ultimately, the question is whether the hearing of oral evidence was required in order to achieve the degree of fairness appropriate to the Appeal Body’s task and irrespective of whether such a hearing had been requested.”

There is no obligation to hold an Oral Hearing (OH) in any case. A Complainant may request an OH but the final decision lies with the AB.

The complexity of the Service Complaint and its potential wider implications may be considerations to be included in coming to a decision on whether to hold an OH. Similarly, an OH may involve no more than asking the Complainant to state the Service Complaint in person, but might involve others concerned. Straightforward Service Complaints involving no substantial conflicts of evidence on any material issue or difficult points of law may be less likely to require an OH….

Any relevant documents will be considered as well as oral evidence. Evidence is not taken on oath and witnesses may be questioned by the AB considering the Service Complaint and by the Complainant or a representative. The hearing should be investigative rather than adversarial. The Complainant, Respondent or a representative may address the AB and may submit documentary evidence. Witnesses may also be called to give oral evidence based on their witness statement….”

It is impossible to define exhaustively the circumstances in which an oral hearing will be necessary, but such circumstances will often include.... (a) Where facts which appear to the board to be important are in dispute, or where a significant explanation or mitigation is advanced which needs to be heard orally in order fairly to determine its credibility. The board should guard against any tendency to underestimate the importance of issues of fact which may be disputed or open to explanation or mitigation………... (c) Where it is maintained on tenable grounds that a face-to-face encounter with the board, or the questioning of those who have dealt with the prisoner, is necessary in order to enable him or his representatives to put their case effectively or to test the views of those who have dealt with him….

The board should also bear in mind that the purpose of holding an oral hearing is not only to assist it in its decision-making, but also to reflect the prisoner’s legitimate interest in being able to participate in a decision with important implications for him where he has something useful to contribute.

The question whether fairness requires a prisoner to be given an oral hearing is different from the question whether he has a particular likelihood of [success] and cannot be answered by assessing that likelihood…..

The board should guard against any temptation to refuse oral hearings as a means of saving time, trouble and expense.”

Firstly, to pick up on that point at [1(viii)] of Osborn, Lord Reed at [72] warned against ‘easy assumptions’ that oral hearings were not cost effective, since as they improve decision-making, they may avoid future hidden costs.

Secondly, at [71], Lord Reed explained that procedural fairness which encouraged decision-makers to listen to the people they made decisions about promoted congruence between their actions and the law.

Thirdly, developing his point at [1(ii)(c) and (iv),] Lord Reed emphasised the importance of not just better decision-making, but also avoiding a sense of injustice in the individual. This is best encapsulated in Lord Hewart’s maxim: ‘Justice must not only be done, but also must be seen to be done’.

Fourthly, at [65], Lord Reed clarified that unlike Wednesbury irrationality, procedural fairness is assessed by the Court itself. As he said:

Fifthly, at [54]-[63], Lord Reed stressed that the primary source of the principles of procedural fairness remains the common law not the ECHR.

As originally stated in Anderson, whether fairness requires an oral hearing still depends on the particular case and is a decision for the DB/AB. To that extent JSP 831 para 35 is correct (see R(A)). However, if that decision is judicially reviewed, what fairness requires is determined by the Court itself, not on a ‘rationality’ basis, so in that sense the DB/AB decision is not ‘final’.

The paradigm oral hearing remains, as said in Anderson, one with a core factual dispute where credibility is in issue exemplified by R(Ogunmuyiwa). However, as also said in Anderson and exemplified by R(Clayton), if any dispute of fact is not central, or can be fairly determined on documents or inherent unlikelihood, fairness will still not require an oral hearing. JSP 831 para.36 has reflected not changed this in saying it is less likely to be needed.

However, even where there are no core factual disputes, procedural fairness may now more often require oral hearings where necessary to enable the individual to participate fairly in the process – as Lord Reed put it in Osborn ‘to put his case effectively or to test the views of those who dealt with him’. Another pointer to oral hearings given in JSP 831 para.36 (although it is not a rule which must be followed unless there is good reason (Mandalia)) is where a service complaint is particularly complex or has wider implications.

Whilst Anderson was discussing service complaints of discrimination at a time when there was no access to the Employment Tribunal, the fact there is now access does not mean the guidance is out of date in such cases, because the statutory purpose of s.120 EqA is still for the disputes to be resolved internally if possible. Moreover, the advent of the ECHR since Anderson may mean changes in other fields on oral hearings under Art.6 ECHR (or in parole under Art.5 ECHR), but even there Osborn shows the common law remains dominant. That is particular so with service complaints as Art.6 (generally) does not apply to them – R(Clayton).

Finally, as JSP 831 para.36 and 39 state and as mentioned back in Anderson, ‘oral hearings’ are not ‘one size fits all’, requiring cross-examination of multiple witnesses, submissions and all the paraphernalia of civil litigation. That may be appropriate where there are highly contentious factual disputes and credibility of one or more witnesses and/or the complainant is in issue. However, in cases where fairness requires an oral hearing for other reasons, it may only require an opportunity for the complainant to give submissions without cross-examination; and indeed, it could be ‘remote’. That is another reason not to make simplistic assumptions about the cost of oral hearings.

Firstly, both Claimants also maintain that fairness required an oral hearing for there to be a proper assessment of their complex post-resignation losses as set out in detail by their solicitors in their appeals.

Secondly, both Claimants maintain there were factual disputes where at least their own credibility or evidence was in issue about (i) their reasons for leaving the RAF; (ii) whether they believed they had no choice but to leave; (iii) whether that was ‘reasonable’; (iv) whether the mishandling of the service complaints against them had ‘significantly’ or ‘irretrievably’ damaged their military careers and prospects of promotion and (v) the weight to be given to the information from Sgt Davis about that.

Thirdly, the First Claimant maintains that fairness also required an oral hearing in her case on the issue of her medical downgrading and stress; and on the change from the DB’s conclusion about it to the AB’s conclusion.

In oral argument, Mr Dingle really put these submissions in the alternative. He contended they justified an oral hearing, but if not, they cried out for a further opportunity to make representations on these points having seen the AB’s provisional views. This illustrates how the Claimants’ ‘oral hearing’ challenge leads naturally into their ‘fair warning’ challenge, which I consider in a moment.

Firstly, the Claimants would have only needed an oral hearing to quantify their post-resignation losses if the AB had been satisfied that to do so would be ‘appropriate redress’ in the first place. The AB did not (and for the reasons already given was entitled to do so subject to the points on fairness below). Moreover, there is a precedent for a ‘in principle first’ approach – and once again it is R(Wildbur) at [25]-[32], where Langstaff J rejected the criticism of the decision for not making inquiries as to the extent of losses and deductions or setting out the detail of calculations and – as he said, the Panel was making the decision of principle first. So too was the AB here.

Secondly, as Mr Talalay submitted, none of the suggested ‘disputed facts’ are the sort of central disputed facts turning on credibility where fairness would require an oral hearing. Even the dispute about career damage and Sgt Davis’ evidence about it was not a true ‘core factual dispute’ – for the reasons discussed it was a dispute between his facts and the Claimants’ beliefs – rather like the situation on contested promotion in R(Clayton). In any event, the Claimants had an opportunity to comment on his evidence. As to the Claimants’ reasons for resigning and their ‘reasonableness’, as Gp Capt Page said, they did not dispute the Claimants’ beliefs, but did evaluate their ‘reasonableness’ against the objective evidence. That did not require an oral hearing, even if written representations on the point may have been of value (to which I return on the ‘fair warning’ issue). Moreover, it would have enabled these Claimants (neither of whom had any difficulties in articulation or ongoing mental health issues) to put their cases fully.

Thirdly, it is true that the First Claimant has perhaps a slightly better argument for an oral hearing – the impact of stress and mental health on her medical downgrading and change in decision on that issue between the DB and AB. However, there was no factual dispute about what happened – only about whether it caused ‘significant damage’ – on which there was no clash of evidence – the AB just investigated evidence which the DB had not. Indeed, one of the reasons the AB did so was because the DB had equivocated. Therefore, an oral hearing would have added little to written representations. Whether the absence of the opportunity to provide those was unfair goes to the ‘fair warning’ issue which is the last issue before me.

In summary, it was not unfair to either Claimant not to hold an oral hearing. Even if I am wrong about that because of the importance of justice being seen to be done by the Claimants, applying s.31(2A) SCA, it is entirely clear for the reasons stated, an oral hearing would not have made any difference. As Gp Capt Page explained, the AB preferred objective evidence over the subjective beliefs of the Claimants – that would not have been any different if they had heard them articulate those beliefs in an oral hearing. Indeed, I would go so far as to say that this point is a paradigm use of the ‘no substantial difference’ rule in s.31(2A) SCA. I therefore dismiss Ground 1 of each challenge. This therefore leaves only the ‘procedural’ aspect of Grounds 2-5, to which I finally turn.

“The Appeal Body failed to identify as matters of controversy to be determined going to the heart of matter, including: a. the Claimant's reasons for leaving the (RAF) Service, b. whether the Claimant decision to leave the Service was reasonable, c. why the Claimant felt she had no choice but to leave the Service, d. the extent to which the comments of the branch career manager were relevant; e. the impact of the Claimant's medical downgrading and mental illness; and f. the quantifiable financial loss the Claimant had incurred as a result of leaving; but instead treated them as uncontroversial and made findings on the same based on limited evidence..”

Ground 2 for the Second Claimant is the same except there is no reference to (d) or (e). (f) in each case is misconceived for the reasons discussed in relation to the First Claimant on Ground 4. However, the broad thrust of this ground, read in addition to those parts of Grounds 3-5 which I have accepted remain relevant, is to coalesce into one overarching point – the ‘fair warning issue’. In short, the arguable parts of Grounds 2-5 can be encapsulated in the following question:

“157 ’Procedural unfairness’ is a modern title for a form of unlawfulness which used to be called ‘breach of the rules of natural justice’. That phrase collected together a number of traditional doctrines, the most important of which were the requirement that a decision should be unaffected by bias (‘nemo judex in causa sua’) and the principle espoused by the Latin tag ‘audi alteram partem’ or, literally translated, ‘hear the other side’. The rules of natural justice served originally to protect the integrity of decision-making by courts but have been applied for more than 150 years to maintain the lawfulness of administrative decision-making…

158 For present purposes the court is concerned only with the second of those main principles, which enshrines the healthy notion that a matter should not be decided against a party without that person being offered a fair opportunity to present their case to the decision maker…

170 I would readily accept that, in appropriate cases, the rules of natural justice may require a party to be afforded time to amend his case in a way that cures an otherwise fatal defect of which he had, without fault on his part, previously been unaware. Such time is frequently given to a party in civil proceedings, whose statement of case is found to disclose no cause of action, to attempt to amend it to cure that defect, before his claim is struck out. Whether the rules of natural justice do or do not impose that requirement is heavily context-specific…”

“138 The procedural duty to act fairly by giving the opportunity to make representations exists whether or not [it] is availed of. Likewise, in the case of the duty to provide relevant information promptly. In both cases the agency responsible acts in contemplation that the person affected will take a particular course to avoid the impact of the decision and that it is fair that he or she should have the chance to do so…If ..a different outcome is obtained, that can be regarded as a substantive benefit. But it does not make the duty to inform or allow representations to be made any less…procedural

139….. [W]hy should it not also be fair to allow the affected person to have the chance by a different means to secure that outcome ? …[I]n both cases, in our opinion, the duty is properly to be regarded as a procedural duty.

140 The answer to this difficult issue lies, we believe, in maintaining a strict segregation between the procedural duty to act fairly at the time when the decision is taken or is imminent and the steps which a person affected might take to achieve a different result. Once the opportunity to make submissions or the chance to take different steps has been provided, the procedural duty has been fulfilled. To deny the chance to make submissions or to fail to inform promptly involves breach of that duty.

141 By contrast, an obligation positively to confer a particular period of grace during which to take action would….amount to the imposition of a substantive rather than a procedural duty.”

Likewise, I have tried to maintain a ‘strict segregation’ between (1) the substance of the AB’s decision on ‘reasonableness’ which I have already analysed in the last part of dealing with under the ‘reasonableness’ issue on the ‘rationality’ standard in R(Wildbur); and (2) the procedural fairness issue of whether the AB should have sought out more information by giving ‘fair warning’ and the opportunity to make more representations.

“[In] R(Balajigari) v SSHD [2019] 1 WLR 4647 the Court of Appeal… held that where the Secretary of State was minded to refuse indefinite leave on the basis of dishonesty, which was likely to be a serious matter, common law procedural fairness required that an indication of that suspicion should be supplied to the applicant to give him an opportunity to respond.”

Whilst ‘dishonesty’ is not the same as ‘unreasonableness’, that is not so very different from the argument the Claimants make in the present case. However, in Pathan at [48]-[52], Lady Arden went on to place the ‘fair warning principle’ in the contemporary juristic context of Lord Reed’s analysis in Osborn, but also at [55], Lord Mustill’s speech in R v SSHD exp Doody [1994] 1 AC 531 (HL). He held in Doody that procedural fairness required that a life prisoner should have the chance to make representations to the Home Secretary on their ‘tariff’ before becoming eligible for parole (under the system then). Lord Mustill said at pg.560:

“The use of the phrase ‘gist of the allegations’ should not be seen to obscure a fundamental right accorded to the person affected by the common law rules of natural justice, namely ‘to have afforded to him a reasonable opportunity of learning what is alleged against him and of putting forward his own case in answer to it’…. Decision-making bodies whether administrative or adjudicative in character should not consider relevant material (supportive or adverse to their case) without giving the affected person the right to comment upon it.”

Whilst Ryder LJ held that had not been done in R(Miller), since s.11(3) HSCA said ‘in other respects, the procedure for conducting an investigation shall be such as the commissioner considers appropriate in the circumstances of the case’, Ryder LJ did emphasise at [55] (in a point of some relevance to this case):

“Since Parliament has deliberately excluded soldier's complaints from industrial tribunals and thus from the procedures laid down for such tribunals, it cannot be axiomatic that by analogy all those procedures must be made available by the Army Board. Had Parliament wished to impose those detailed procedures on the Army Board, it could have done so.”

However, Taylor LJ then rejected the submission of Mr Pannick KC (as he now is) that the Army Board only give a complainant a chance to respond to the basic points against him, provided it acted rationally. Taylor LJ said at pg.56:

—(1) For the purposes of making a decision under regulation 9(2)(a) or (b), or a determination under regulation 13(2)(a) or (b), the person or panel of persons or, as the case may be, the Defence Council may request the complainant, or such other person as they consider appropriate, to supply information or produce documents…..

For the purposes of…a determination under regulation 13(2)(a) or (b), the person or panel of persons….must give— (a) any person who they consider is a subject of the complaint, and (b) any person who they consider is likely to be the subject of criticism in the….determination in relation to that person’s character or professional reputation, an opportunity to comment on any allegations about that person stated in the complaint.

Any comments received under paragraph (4) must be given due weight in making the…determination.

The person or panel of persons…may send a copy…of a draft determination under Reg.13(2)(a) or (b) to any person within paragraph (4).

If they receive any comments from such a person on the draft determination, they may refer to those comments in the final …determination and may state in the…determination their response...”

You should also be aware that the AB has to give any person who is the subject of your complaint (a Respondent) or any other person who is likely to be criticised in a decision it might make, an opportunity to comment on allegations about them in your complaint. Any comments received must then be given due weight by the AB in making its decision on your Service Complaint.”

There is no suggestion in the guidance of the possibility of a draft report for complainants. Immediately before it, the complainant guidance in JSP 831 says:

“120 There is ample authority on the issue of whether the duty to afford the opportunity to make representations arises where any such representations are bound to fail. [I]n Cinnamond v BAA [1980] 1 WLR 582, 593, it was said that no one could complain of not being given an opportunity to make representations if it would have achieved nothing. A somewhat similar view was expressed in Bank Mellat v HM Treasury (No 2) [2014] AC 700 [179]... [But] Lord Neuberger PSC was at pains to point out any argument advanced in support of pointlessness ‘should be very closely examined, as a court will be slow to hold that there is ==no obligation to give the opportunity, when such an obligation is not dispensed with in the relevant statute’…

121 Pointlessness can have two dimensions. The first is that there is no possibility of bringing about a change of mind on the part of the authority on the terms of the decision that has been made…..The second dimension is different. It involves an examination of whether, on becoming aware of the decision, there was simply nothing the affected person could do to achieve his aim. In other words, there was no other avenue which he or she could explore to avoid the impact of the adverse decision ….”

Indeed, Lord Kerr and Lady Black disagreed with Lord Briggs, as although representations on the lost licence would have been ‘bound to fail’ so ‘pointless’ on the first dimension, ‘fair warning’ of that would have given Mr Pathan a chance on the second dimension to take other steps to achieve the same outcome (e.g. a different and licenced employer). So, ‘pointlessness’ is a very narrow exception to procedural fairness – assessed by the Court itself, not the decision-maker subject to rationality (Osborn) – where prospectively giving fair warning and an opportunity to comment would be ‘pointless’ in both senses. In other words, the Court is saying that it was not unfair not to take a truly ‘pointless’ step.

“The High Court— (a) must refuse to grant relief on an application for judicial review….if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred….”

The first difference between s.31(2A) SCA and ‘common law pointlessness’ in Pathan is that ‘conduct’ in s.31(2A) SCA can include both procedural and substantive ‘conduct’ (R(Goring) at [47] and [53]): there is not the same ‘sharp line’ as with ‘procedural fairness’ Lord Kerr and Lady Black discussed in Pathan. The second difference is their conception of ‘pointlessness’ was prospective (‘where any representations are bound to fail’ not ‘were bound to fail’) whilst the language of s.31(2A) SCA is retrospective and counterfactual: (‘the outcome would not have been substantially different’). Thirdly, that is because s.31(2A) SCA is a statutory replacement for a different common law principle, as explained in R(Goring) and R(Plan B Earth) v SS Transport [2020] EWCA Civ 214, a challenge to the Heathrow third runway, succeeding in the Court of Appeal, but reversed by the Supreme Court, but not on s.31(2A) SCA. The Court of Appeal’s analysis of s.31(2A) SCA was quoted by Ellenbogen J in R(Ogunmuyiwa):

‘In each Claimant’s case, did procedural fairness require that each be given ‘fair warning’ and the opportunity to make written representations on the AB’s provisional adverse conclusions that (i) the maladministration and undue delay did not cause significant damage to their career and promotion prospects; and (ii) that ‘it was not reasonable for them to believe they had no choice other than to leave the RAF under the circumstances’ ?’

Most of Mr Dingle’s submissions applied to both Claimants (and in fairness it was because their positions are so similar that I consolidated their cases), but he did differentiate on certain points. I will draw his submissions together into five alternative procedural steps which he submitted procedural fairness required for ‘fair warning’ and ‘opportunity to make representations’ on ‘career damage’ and ‘reasonableness’ and then apply those conclusions briefly to each Claimant.

“If you disagree with the DB’s decision you have the right to appeal and escalate your complaint to an Appeal Body….If you appeal, the Appeal Body is not bound, restricted or confided by my decision and will consider the whole of your Service Complaint again, including any parts that have been upheld and any redress that I have recommended. The Appeal Body may not reach the same decisions as the DB.” (Original Bold).”

Likewise, in the AB’s own determination letter to each of the Claimants, it said:

This is also consistent with the guidance to AB’s in JSP 831 para 29:

It is difficult to see what clearer warning that the Claimants could have expected that if they appealed on redress, the AB could reach its own conclusions on other matters, although in the end the AB essentially reached similar conclusions on maladministration and undue delay, just not the impact that had on the Claimants. Whilst the system has since changed to a ‘review model’, under such a ‘rehearing’ model, ABs are caught between the ‘rock’ of simply adopting the DB’s conclusions and being criticised for not re-investigating and reaching their own conclusions as in R(Ogunmuyiwa) at [74]-[76] and the ‘hard place’ of re-investigating and reaching their own conclusions as in this case. For the reasons I have explained, the AB was entitled to do so and the Claimants had fair warning.

“[T]he Panel might well have chosen to make further inquiries …[But] it seems to me that rationality did not require the Panel here to make further inquiry or adjourn to do so: many panels might, and indeed…might be encouraged hereafter to do so, but the circumstances do not so obviously cry out for the gathering of that information as to oblige it.”

It is even clearer here. The AB here were dealing with an appeal on redress and had undertaken their own investigation of it from third parties and enabled the Claimants to comment on it. Subject to the points below, they cannot be criticised for failing to ask the Claimants for yet more information relevant to their own appeals on redress when they had already had three opportunities to provide it.

“[W]e have found [the maladministration etc] had not caused [First Claimant: ‘significant damage’; Second Claimant: ‘irretrievable damage’] to your career. Further we also concluded it was not reasonable for you to believe that you had no choice other than to leave the RAF under these circumstances. As such, the claim for loss of earnings etc covered within your appeal is not considered further. Nevertheless, we have proposed a financial award to acknowledge the distress, worry and anxiety caused…”

As I said, it was the Claimants who had contended (i) the mishandled service complaints against them caused them ‘significant’ and ‘irretrievable’ career damage respectively and (ii) that owing to this and their mental health they each ‘believed they had no choice but to leave the RAF’. So, in essence in each case the AB rejected (i) because it disagreed factually and (ii) because it found that belief was ‘not reasonable’ – it applied its ‘reasonableness test’. I also explained above that test was entirely rational on the R(Wildbur) approach, not least as it was analogous to tortious principles of ‘new intervening cause’ and mitigation. It was quite unlike the Health Ombudsman’s idiosyncratic departure in R(Miller) from the Bolam test for clinical judgment with a subjective ‘best practice’ test.

Firstly, this argument stretches the ‘fair warning’ principle beyond its fair extent. It is not only fair but mandatory to be consulted before a decision is made where Parliament has said so, as with respondents to an ombudsman complaint before an investigation is launched in R(Miller). Likewise, it is basic fairness, as in Pathan, to give an applicant ‘fair warning’ of a fatal flaw in their application, from the start or due to change in circumstances. Similarly, it is only fair to warn an applicant of the risk of a potential finding as serious as ‘dishonesty’ in an immigration application in R(Balijigari). However, even if I am wrong to have concluded ‘the reasonableness test’ here was simply an evaluative conclusion flowing from findings of fact that were fully ‘in play’; but instead was a ‘novel’ legal test developed by the AB, that does not mean the AB had to send out their proposed test for comment first. I have not been shown any case which said anything like that. Indeed, it would be surprising, as a judge would not be expected to do that provided they had sufficient submissions relevant to the point (which is why I raised further cases and asked for written submissions after the hearing). As Ryder LJ said in R(Miller), courts should not apply the same procedural standards as their own to complaints processes. Still less should courts insist on stricter requirements than their own for complaint decision-makers. For the reasons given, the Claimants had ample opportunity to explain their resignations in any way relevant to the application of a ‘reasonableness’ test.

Secondly, even if I am wrong about that and an AB should generally give the complainant the opportunity to comment on a legal test it envisages like ‘reasonableness’, I do not accept it was unfair of the AB in this case. After all, as explained, the AB’s ‘reasonableness test’ was closely analogous to the tortious principles of ‘new intervening cause’ and ‘mitigation’. It is ironic that Claimants with solicitor-drafted appeals effectively seeking substantial damages on tortious heads of loss complain they were blindsided by the decision-maker applying a test closely resembling tortious principles on causation and mitigation. Ironic or not, in the circumstances, there was no need to do so with as basic an evaluative concept as ‘reasonableness’. The Claimants were not unrepresented complainants unfamiliar with the process. Again, they had ample opportunities to make their representations.

Thirdly, even if I am wrong about that and procedural fairness ordinarily would have required the AB to ask a complainant (represented or not) why they considered resignation was reasonable before concluding otherwise, on balance I find fairness did not require it in the circumstances of this case. That is for all the various reasons expressed throughout this judgement. For fear of further repetition, the main reasons are as follows. The Claimants appealed the DB’s redress decision and the onus was on them to explain why ‘post resignation losses’ were ‘appropriate redress’ not in principle but on the facts of their cases. They had three separate chances to do so – in their solicitor-drafted appeal; in the detailed appeal statement the AB’s investigator took from each of them before investigating further; and in the opportunity to respond to the new evidence on career damage. The AB reached their own conclusions on career damage as they were entitled to do and they and the DB had warned the Claimants that the AB may do. In each case (as already explained) the AB rejected the contention on career damage of each Claimant in their service complaint, so they had fair warning. The AB accepted each Claimant genuinely believed they had no choice but to resign, but largely on the new evidence obtained on which the AB specifically gave the Claimants the opportunity to comment, the AB found their beliefs were not reasonable, which was a rational test, closely analogous to the most relevant test in tort, which was how the Claimants had framed their appeal in the first place. In all those circumstances, I do not accept that the failure to ask the Claimants to re-explain their resignations by asking why they considered them reasonable was necessary, even if it may have been helpful. In my judgment, put simply, it was not unfair.

For those reasons, I reject the Claimants’ arguments on ‘the fair warning issue’.

For the First Claimant, whilst I accept the DB initially concluded that the maladministration had caused significant damage to her career prospects, the DB then diluted that down. So, the AB was entitled to re-investigate and on new evidence on which she had the opportunity to comment, reached a rational conclusion. I therefore dismiss her Ground 3. Moreover, I find that the AB made all reasonable inquiries into the issue of principle they were deciding and were entitled not to investigate the evidence of individual items of loss as in R(Wildbur), so I dismiss her Ground 4. I also reject her criticism of the AB’s investigation or conclusion showed a closed mind, bias or predetermination or failed to attach sufficient weight to her representations and I dismiss Ground 5. An oral hearing was unnecessary and I dismiss her Ground 1. I find the AB followed both a fair process and reached a rational conclusion that it was not reasonable for her to believe that she had no choice but to resign especially as she was largely exonerated before she did so and I dismiss her Ground 2. That test was rational and closely analogous to tortious principles, so I reject her Ground 6. Instead, the AB made a substantial ‘non-quantifiable payment’ of £3,500 which was rational in all the circumstances and so I dismiss her Ground 7. For the avoidance of doubt, to the extent Mr Dingle’s submissions went further than the Claimant’s grounds, she had no permission to amend but I have dealt with them anyway.

For the Second Claimant, I gave him that position as unlike the First Claimant, the DB never reached a firm conclusion that he had in fact suffered career damage. In those circumstances, especially with the new evidence on which he had the chance to comment, the AB’s conclusion he had not suffered ‘irretrievable’ damage was plainly rational. I therefore dismiss his Ground 3. I also consider the AB made all reasonable enquiries into whether in principle to award post-resignation losses, but also into the reasonableness of his decision to resign and that he had ample opportunity to make representations about that. I therefore also dismiss his Ground 4. As with the First Claimant, I reject the Second Claimant’s criticisms of bias, predetermination etc by the AB and dismiss his Ground 5. Similarly, an oral hearing was unnecessary and I dismiss his Ground 1. I also dismiss his Ground 2, since the AB was entitled to conclude that it was not reasonable for him to believe that he had no choice but to leave when he did so, especially before the service complaint process against him concluded. As with the First Claimant, that test was rational and closely analogous to tortious principles, so I reject his Ground 6. Instead, the AB made a substantial ‘non-quantifiable payment’ of £3,500 which was rational in all the circumstances and so I dismiss his Ground 7. For the avoidance of doubt, to the extent Mr Dingle’s submissions went further than the Claimant’s grounds, he had no permission to amend but I have dealt with them anyway.

Firstly, the Claimants would have said, as they have said, that it was unfair to depart from the DB’s decisions on career damage. However, since the AB was entitled to do so and did so after taking the Claimants’ responses to the evidence on career damage, it is difficult to see what else they would have said that would not have involved mere repetition of their perspective on the impact on their career (already set out in detail in their appeal statements). Therefore, I am satisfied it is inevitable, or at least highly likely, that the AB’s decision on career damage would have remained the same.

Secondly, faced with the AB’s decision letter as a draft, the Claimants would have said, as they have said, that the ‘reasonableness’ test was wrong because it was objective not subjective. However, I have found the AB was rationally entitled to adopt that test and indeed it was analogous to tortious principles on causation and mitigation. Given the Claimants’ appeal relied on tortious heads of loss, in those circumstances, I find that the AB would inevitably have lawfully maintained it, as it has before me.

Thirdly, the Claimants would have said, as they have said, that it was wrong for the AB to conclude that they were not reasonable to believe they had no option but to leave the RAF. However, the information suggested by the Claimants they would have wanted to give – such as the impact of confidentiality failings on them, the levels of stress etc – was all information that they had already raised through their appeal and statements etc. This would have been an exercise in repeating and highlighting what they had already said (just as their responses to the new evidence were). In those circumstances, I find the same outcome would have been highly likely.

Fourthly, I have said ‘the same outcome’ each time because the AB had made a decision of principle not to award post-resignation losses as a quantifiable payment and the AB would have had to change that decision to change the outcome and I find that even with the Claimants’ likely representations in response to their draft report, the AB would not have done. Whilst it is possible the AB might have slightly increased the ‘non-quantifiable payment’, given it was above the SCOAF Guidance top band, it is ‘highly likely’ that it would not have done so, at least to any extent that would have amounted to a ‘substantially different outcome’.

Finally, I have dealt in several places with the contentions that the AB should have undertaken an Oral Hearing; and/or investigated further the Claimants’ actual losses with a view to calculating a payment. I accept either outcome would not have been ‘substantially the same’ – there is a difference between a decision after an oral hearing on paper, even if the decision is the same. However, the Claimants had already asked for those things and the AB rationally and lawfully declined. Even if the Claimants had asked yet again, the AB would inevitably have given the same response.

I am fortified in this by the fact the Ombudsman felt a further investigation would not make any difference. Therefore, had I found unlawfulness, s.31(2A) SCA would have applied. However, I have not, so it is academic.