Flight Sergeant (ret'd) Barbara Eyton-Hughes & Anor, R (on the application of) v The Secretary of State for Defence [2024] EWHC 1932 (Admin)

“[He] is understandably disillusioned with an apparent lack of adherence to proper procedure during the SC process and is now keen to leave the Service having gained new professional qualifications.”

“We discussed the impact her Service Complaint has had on her and her comment [of] experiencing bullying in a previous role. She is clear and confirmed in her wishes to leave the Service at this time.”

“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 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.”

“Compensation for premature loss of military career and consolatory compensation for hurt and distress.”

“2. 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 3. 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… 4. 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. 5. 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. 6. [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.”

“6. 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. 7. 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.”

“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.”

“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.”

“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….”

“In my experience she has shown…she is ahead of her peers. Her performance has been indicative of a person...ready for the next rank.” b. 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: “An eminently experienced WO, he would undoubtedly be suitable for executive managerial appointments, strategic planning and development projects within any high tempo environment.”

“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 ?”

“I only started in post in August 2020, so I never had any direct contact with WO Pierre. I have looked back through his records. His last recorded SJAR he was given OPG of A-. On his [early termination] application he…felt he had not been supported by the RAF while he was the subject of a service complaint. 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. FS Eyton-Hughes last three SJARs she received an OPG of A- with a High [promotion recommendation]. On the 2021 [Promotion Selection Board] she finished 6 on the [Merit Order List] 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. In her [early termination] application…she felt she had been disadvantaged by her ongoing SC and was disillusioned with service life. She had just started in post as [Flight Sergeant on Medical Policy] so although I tried to retain her in service, there were no assignment options for her at that time. When she reached [Future Availability Date] she would have been employable in any [Flight Sergeant] post.”

“[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.”

“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”

“13. 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” 14. 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”

“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 [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.”

“b. 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)….. c. 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’.”

“(1) 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. (2) 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…. (4) A person may not make a service complaint about a matter of a description specified in regulations made by the Secretary of State.”

“A person may not make a service complaint about—(b) a decision under regulations made for the purposes of s.340C(2) (decision on the service complaint)…(d) a determination of an appeal brought under regulations made for the purposes of s.340D(1) (appeals) (e) alleged maladministration (including undue delay) in connection with the handling of his or her service complaint; (f) a decision by the Ombudsman for the purposes of any provision of Part 14A of the Act; (g) the handling by the Ombudsman of a service complaint…”

“(1) 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. (2) 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…” (3) 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: “(1) Service complaints regulations must make provision enabling the complainant in relation to a service complaint to appeal to the Defence Council against a decision on the complaint, where the decision was taken by a person or panel appointed by virtue of section 340C(1)(a). (2) The regulations may make provision—(a) about the way in which an appeal is to be brought…(aa) restricting the grounds on which an appeal against a decision on a complaint…. may be brought; (b) [for time limits to appeal – 2 weeks – see s.240D(3)]…(d) requiring the….Council to decide whether an appeal is to be determined— (i) by a person or panel of persons appointed by the Council, or (ii) by the Council themselves…. (4) The Defence Council must not appoint a person or panel to determine an appeal unless— (a)….all the persons on the panel are authorised by the Council to determine the appeal and to grant appropriate redress, or (b) the Council propose to authorise…those persons for those purposes.”

“(1) The Defence Council may authorise a person to investigate a particular service complaint— (a) on the Council's behalf, or (b) on behalf of a person or panel of persons appointed to deal with a service complaint or to determine an appeal relating to a service complaint. (2) Service complaints regulations may authorise the Defence Council to delegate to any person… any of the Council's functions under the preceding provisions of this Part. (3) Subsection (2) does not apply to— (a) the Defence Council's function of making service complaints regulations, (b) the Council's function of dealing with a service complaint or determining an appeal, or (c) any function of the Council by virtue of section 340C(3)(b) or 340D(4)(b) in connection with authorising a person to make decisions or determinations and to grant redress.”

“4.—(1) A service complaint is made by a complainant making a statement of complaint in writing to the specified officer. (2) 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…. 9. —(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. (2) 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. 10. —(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….”

“(1) Where a decision under Reg.9(2) is made by a person or panel of persons appointed under Reg.9(1)…the complainant may appeal to the Defence Council against that decision on one or more of the following grounds (a) that there was a material procedural error; (b) that the decision was based on a material error as to the facts; (c) that there is new evidence, and it is likely that the decision would have been materially different if the new evidence had been made available to that person or panel.”

“10(2) An appeal under paragraph (1) must be brought by the complainant in writing to the Defence Council…. 13. —(1) Where the Defence Council decide… the appeal can be proceeded with, the Defence Council must decide whether the appeal is to be determined— (a) by a person or panel of persons appointed by the Council; or (b) by the Council themselves. (2) The person or panel of persons appointed to consider the appeal… must— (a) determine whether the complaint is well-founded; and (b) if the determination is that the complaint is well-founded—(i) determine what redress (if any), within the authority of the person or persons on the panel…. would be appropriate; and(ii) grant any such redress. (3) The person or panel of persons appointed to consider the appeal or, as the case may be, the Defence Council, must notify the complainant in writing of a determination under paragraph (2)(a) or (b), giving reasons for the determination and informing the complainant of the complainant’s right to apply to the Ombudsman to conduct an investigation under section 340H(1) in relation to the service complaint. 14. —(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….. (4) 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 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 decision or 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. (5) Any comments received under paragraph (4) must be given due weight in making the decision or determination. (6) The person or panel of persons or, as the case may be, the Defence Council may send a copy of a draft decision under regulation 9(2)(a) or (b), or a copy of a draft determination under regulation 13(2)(a) or (b), to any person within paragraph (4). (7) If they receive any comments from such a person on the draft decision or determination, they may refer to those comments in the final decision or determination and may state in the decision or determination their response to those comments.”

“(1) 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. (2) 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…... (4) 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… (6) 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. (7) 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….”

“(1) The Service Complaints Ombudsman must, after carrying out an investigation, prepare a report setting out— (a) the Ombudsman's findings, and (b) any recommendations referred to in subsection (2) (2) Those recommendations are— (a) on an investigation under section 340H(1)(a) where the Ombudsman finds that the service complaint to which the investigation relates is well-founded, the Ombudsman's recommendations (if any) on what redress would be appropriate; (b) on an investigation under section 340H(1)(b), (c) or (d) where the Ombudsman finds that the allegation to which the investigation relates is well-founded, the Ombudsman's recommendations (if any) as a result of that finding; (c) where, by virtue of section 340H(7), the Ombudsman finds maladministration in connection with the handling of a service complaint, the Ombudsman's recommendations (if any) as a result of that finding. (3) The Ombudsman may for the purposes of subsection (2)(b) or (c) make any recommendations that the Ombudsman considers appropriate, including recommendations for the purpose of remedying— (a)the maladministration or undue delay to which the finding relates, and (b) any injustice that the Ombudsman considers has or could have been sustained, in consequence of the maladministration or undue delay, by the complainant….”

“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…”

“71. 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… 72. 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. 74. 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… 75. [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. 76. 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.”

“36. 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. 37. 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….”

“24. 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…. 25. 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. 28. 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’. 29. 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. 32. 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…. 35. 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. 36. 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…. 39. 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…. 33. 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. 34. 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.”

“SERVICE COMPLAINTS FINANCIAL REMEDIES – GUIDANCE ON FINANCIAL REMEDIES Introduction 1. 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 2. 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] 3. 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. 4. 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 5. 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 ofthe 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. 6. 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 20. 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. 21. 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. 29. 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 35. 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 36. 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 37. 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.”

“A4.14.3. As section 4.11 explains, when public sector organisations have caused injustice or hardship because of maladministration or service failure, they should consider: • providing remedies so that, as far as reasonably possible, they restore the wronged party to the position that they would be in had things been done correctly, and • whether policies and procedures need change, to prevent the failure reoccurring…. A4.14.8. 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, however, allow recipients to gain a financial advantage compared to what would have happened with no service failure.”

“SCOAF can recommend payments as either quantifiable or non-quantifiable redress. 3.1 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. 3.2 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 needto be made based on the evidence provided in an impact statement.”

“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. 38In 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. 39It 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… 40On 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. 41I 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’.”

“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.”

“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.”

‘reparation or compensation for a wrong or consequent loss’. b. 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’

“[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..”

“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.”

“19. 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… 20. The word ‘appropriate’ is a change from [the 1955 legislation]… it was then ‘necessary’. It suggests….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.”

“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…”

“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.”

“[T]he provisions in Part 14 (now Part 14A) of the 2006 Act represent a bespoke and exclusive dispute resolution mechanism which was required by reason of the very fact that the rights of servicemen and women are not justiciable by any other means. As set out in the Explanatory Memorandum to the legislation, Parliament was legislating to fill the gap left by servicemen who were not able to bring claims otherwise.”

“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.”

“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…it is decided not to invoke the Limitation Acts….. 29. 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 approval….”

“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…”

“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”. b. 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: “In addition to the SCs being extremely detrimental to my health, it has caused irretrievable damage to my military career and forced me to prematurely leave the RAF. ….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]… [W]ith 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 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).”

“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: ‘[W]here any injury is to be compensated by damages, in settling the sum of money to be given ... you should as nearly as possible get at that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong…’: Livingstone v Rawyards Coal Co. (1880) 5 App Cas. 25, 39.”

“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…”

“[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.”

“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…”

“HOC 2: The First Claimant 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’.”

“[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.” (my emphasis) Yet in the redress letter of 20th July, the last point was diluted (my emphasis): “[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.”

“…[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…”

“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.”

“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 FSpost”

‘Further, we also concluded thatit was not reasonable for you to believe that you had no choice other than to leave the RAF under these circumstances’

“[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 treatment was so unreasonable the complainant could not have fairly been expected to put up with it any longer’

‘a clear relationship between the redress which is offered and the wrong which has been suffered’

“The proper approach to the reasonableness of a decision to leave the RAF following the unfairness, delay and stress visited on the Claimant in the circumstances was to examine the matter subjectively taking the victim of the maladministration as the Defendant found them..: Smith v Leech Brain.”

‘there is no difference in principle between an eggshell skull and an eggshell personality’

“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.”

‘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’

“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.”

“As between a claimant and a tortfeasor the onus is on the latter to show that the former has unreasonably neglected to mitigate the damages. The standard of reasonable conduct required must take into account that a claimant in such circumstances is not to be unduly pressed at the instance of the tortfeasor… [T]he claimant’s conduct ought not to be weighed in nice scales at the instance of the party which occasioned the difficulty.”

“13. 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. 14. 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… 18. 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. 19. 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… 20. 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.”

“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): “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….”

“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.”

“(2) 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. 23. 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) vthe 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 whethersuch a hearing had been requested.”

“35. 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. 36. 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…. 39. 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….”

“(ii) 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…. (iv) 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. (v) 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….. (viii) The board should guard against any temptation to refuse oral hearings as a means of saving time, trouble and expense.”

“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..”

‘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’ ?’

“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.”

“[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.”

“(1) [W]here an Act of Parliament confers an administrative power there isa presumption that it will be exercised in a manner which is fair in all the circumstances. (2) The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type. (3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects. (4) An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken. (5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both. (6) As the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests, fairness will very often require he is informed of the gist of the case he has to answer.”

‘Where the commissioner proposes to conduct an investigation….he shall afford [to the doctor] an opportunity to comment on any allegations in the complaint’

“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.”

“…[I]t is important that this court does not import into the informal, non-judicial process of administrative and complaints adjudicators like the ombudsman the procedures of courts and tribunals. The adjudication process is an informal resolution of a complaint or problem where other remedies are not reasonably available or appropriate. The procedure is a matter entirely within the gift of the ombudsman provided that her decision- making process is lawful, rational and reasonable.”

“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.”

“(4) Whether oral or not, there must be what amounts to a hearing of any complaint under the Act of 1976. This means that the Army Board must have such a complaint investigated, consider all the material gathered in the investigation, give the complainant an opportunity to respond to it and consider his response. But what is the board obliged to disclose to the complainant to obtain his response ? Is it sufficient to indicate the gist of any material adverse to his case or should he be shown all the material seen by the board ?....Because of the nature of the Army's Board's function pursuant to the Race Relations Act 1976, already analysed above, I consider that a soldier complainant under that Act should be shown all the material seen by the board, apart from any documents for which public interest immunity can properly be claimed. The board is not simply making an administrative decision requiring it to consult interested parties and hear their representations. It has a duty to adjudicate on a specific complaint of breach of a statutory right. Except where public interest immunity is established, I see no reason why on such an adjudication, the board should consider material withheld from the complainant.”

“14. —(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….. (4) 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. (5) Any comments received under paragraph (4) must be given due weight in making the…determination. (6) 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). (7) 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...”

“72. 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... 74. 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…”

“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 ….”

“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….”

“267. It has long been established that, in a claim for judicial review, the court has a discretion whether to grant any remedy even if a ground of challenge succeeds on its substance. It was established by Purchas L.J. in Simplex GE (Holdings) Ltd. v SoS Env. [1988] 3 P.L.R. 25 that it is not necessary for the claimant to show that a public authority would – or even probably would – have come to a different conclusion. What has to be excluded is only the contrary contention, namely that the Minister “necessarily” would still have made the same decision. The Simplex test …therefore requires that, before a court may exercise its discretion to refuse relief, it must be satisfied that the outcome would inevitably have been the same even if the public law error identified by the court had not occurred…. 272. The new statutory test modifies the Simplex test in three ways. First, the matter is not simply one of discretion, but rather becomes one of duty provided the statutory criteria are satisfied. This is subject to a discretion vested in the court nevertheless to grant a remedy on grounds of ‘exceptional public interest’. Secondly, the outcome does not inevitably have to be the same; it will suffice if it is merely ‘highly likely’. Thirdly, it does not have to be shown that the outcome would have been exactly the same; it will suffice that it is highly likely that the outcome would not have been ‘substantially different’ for the claimant. 273. It would not be appropriate to give any exhaustive guidance on how these provisions should be applied. Much will depend on the particular facts of the case before the court. Nevertheless, it seems to us that the court should still bear in mind that Parliament has not altered the fundamental relationship between the courts and the executive. In particular, courts should still be cautious about straying, even subconsciously, into the forbidden territory of assessing the merits of a public decision under challenge by way of judicial review. If there has been an error of law, for example in the approach the executive has taken to its decision-making process, it will often be difficult or impossible for a court to conclude that it is “highly likely” that the outcome would not have been “substantially different” if the executive had gone about them decision-making process in accordance with the law. Courts should also not lose sight of their fundamental function, which is to maintain the rule of law. Furthermore, although there is undoubtedly a difference between the old Simplex test and the new statutory test, the threshold remains a high one…”

‘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’ ?’

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

“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).”

“[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.”

“In their appeal application…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.”

“[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.”

“[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…”

‘Why do you say your resignations were reasonable ?’