[2024] UKUT 449 (AAC)

The Appellant argued that the error displayed by the First-tier Tribunal by its reference to ‘only or major cause’ followed the same error identified in Hall and Risby.

It was argued on behalf of the Respondent that, in essence, the conclusions made by the Tribunal should be seen in the context of how the case had proceeded and the evidence under consideration. The Appellant had argued that sleep difficulties assumed much greater significance at the hearing. The evidence of Dr Hymans in his report in support of the Appellant’s claim stated that: “ADHD pervades every aspect of [DJ]’s functioning, including his learning, communication and behaviour”. As a consequence the Tribunal was invited by the Appellant to draw from this general statement that every breach of the performance agreement was in consequence of the Appellant’s ADHD condition. The Respondent argued that this evidence was summarised at paragraphs 21 and 22 of the Tribunal’s decision and the decision should be considered as a whole. The reference to ‘all’ was a response to the submission that all behaviours were linked to ADHD; “it is possible” was the Tribunal weighing evidence when faced with competing allegations; and that “far more likely’ was the Tribunal weighing the possibility of the effect of sleep on the one hand and DJ simply not being engaged on the other. Therefore the reference to ‘only’ should be considered in that context.