Many injured military personnel and veterans make claims under the Armed Forces Compensation Scheme (AFCS) for service attributable injuries. Anyone doing so will have come up against deadlines and time limits imposed under the Scheme.
Once the deadlines and time limits have expired, a decision cannot be challenged either by application to Reconsider or Appeal.
The one-year deadline between procedural stages may seem like plenty of time. But the reality is, especially when someone is particularly unwell, that time passes and they find themselves unhappy with the final decision, but can’t challenge it.
It’s correct that time limits apply to each stage of a claim, which are strictly adhered to. But hidden away in the AFCS is Article 59.
Under Article 59, it’s possible to challenge even historic decisions which would be considerably out of time, under normal circumstances. The decision being challenged must’ve been made in ignorance or by mistake, where information was knowable at the time that decision was made.
There’s one particularly common example of where this arises. That’s where a final decision was made, and on all the facts knowable at the time, the award should’ve been an interim one subject to review after a period of time.
Frequently, someone who’s badly injured or unwell will receive a final award. But they’re either not well enough to challenge it, or don’t fully appreciate that they can do so, or know how to. They may believe the award was always incorrect on the evidence, but assume that they’ve lost any chance of fixing the situation.
A recent Freedom of Information request looked into the number of Article 59 applications made to Veteran UK (VUK). It showed 337 applications were made between 1 August 2018 and 31 March 2020, a period of just 19 months.
Out of those 337 applications, 229 were upheld in favour of the applicant. In other words, 229 mistakes were made in that short period alone, which raises the question of how many more were made but not challenged.
To successfully challenge a decision under Article 59, a forensic approach is required. The challenge must interrogate the Veterans UK file to work out exactly what was known or knowable at the time the decision was made which is considered to be wrong.
A challenge need not be limited to information that’s on file being ignored. It can also include information which VUK knew was available but didn’t get.
An example would be where it’s made clear that treatment was carried out at a hospital, but VUK don’t apply for the records. So, it was knowable that information or evidence was available that was relevant, but a decision was made in ignorance of that information.
Of course, proving information was knowable but wasn’t obtained or relied upon, doesn’t not guarantee that a decision will be changed. Every case is based on its facts, and the evidence can be gathered and considered, but not affect the previous outcome.
What’s not commonly known is that having if an Article 59 application is rejected, there’s a distinct right to actually challenge that decision. This is something we do on a regular basis and with much success.
We’ve been involved in a lot of successful Article 59 challenges, including:
- A PTSD claim given a final award at a low level 13 in 2013. This was reopened in 2019 on the basis that it was known at the time of that decision that treatment was ongoing. The final award was converted to an interim. The client has now received £96,000 in GIP back pay plus a much higher award
- A PTSD claim made final in 2008 reopened on the same grounds as treatment was ongoing. This client recently received 12 years back pay on GIP and is now going to appeal
- A claim where a low award was incorrectly given for broken ribs, when in fact the injury was a more serious chest injury. A level 11 award was substituted with GIP now payable. The injury had been wrongly classified, and so put under the incorrect descriptor, which produced the wrong award.
There are many more examples and situations that can give rise to a decision being made in ignorance or by mistake.
Even having identified a possible mistake, there’s no guarantee of a successful Article 59 application. But if you think there’s something wrong, there’s nothing to be lost by asking the question.
Further reading
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