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Ground 1
Ground 1
Introduction
Ground 1 amounts to a composite assertion that the FTT erred in law through finding facts without the evidence enabling it to do so; through finding facts on the basis of extraneous information; and through wrongly and contrary to the principles of natural justice relying on its own knowledge for certain of its findings.
Judge Hemingway had this to say in respect of Ground 1 when granting permission to appeal:
There are some elements of that ground, as set out in the written grounds prepared by Ms Skander, which I find unpersuasive. But the threshold for the giving of permission is not a high one and upon hearing oral argument I do think the F-tT might have erred through, at least, not giving a sufficiently clear signal as to the nature of the findings it was contemplating making on the basis of its own knowledge (see paragraph 14.5 of the written reasons issued on 4 March 2021) though it did send something of a signal (see page 50 of the transcript of the hearing of 21 December 2021); or through failing to adequately explain the basis for or the detail of the “collective knowledge” it applied to the fact-finding process. Although I have said there are aspects of what is argued in support of ground 1 which I find unpersuasive (even in the context of what is arguable) it would be a difficult and probably unhelpful exercise to sever parts of the ground. So, ground 1 may be argued in full. I would add, though, that whilst the written grounds criticised the F-tT for attaching weight to a document referred to as the “IMEG report”, Mr Rawlinson accepted it was perfectly proper for the F-tT to have regard to it. I agree. So, I would not anticipate there will be any complaint about the F-tT having regard to that report in the appeal to the Upper Tribunal which will now follow.
Given that clear judicial steer, it was understandable that at the oral hearing of the appeal Mr Rawlinson primarily focussed his forensic fire on what he submitted was the FTT’s erroneous approach to making findings on the basis of its own knowledge and the use of its “collective knowledge” as applied to the fact-finding process. Mr Rawlinson highlighted several passages in the transcript of the FTT hearing in an attempt to make good this aspect of the first ground of appeal. In the next section I discuss the most significant of these passages.
- Heading
- The decision of the Upper Tribunal is to dismiss the Appellant’s appeal. The decision of the First-tier Tribunal issued on 4 January 2021, following the hearing on 21 December 2020 under file number A
- Introduction
- A very brief outline of the factual background to the appeal
- The Appellant’s AFCS claim
- The Secretary of State’s decision on the Appellant’s AFCS claim
- The Appellant’s appeal to the First-tier Tribunal
- The decision of the First-tier Tribunal
- The Upper Tribunal appeal
- The AFCS legislative framework
- The role of appellate review in appeals from a specialist first instance jurisdiction
- Ground 1
- The First-tier Tribunal’s approach to making findings on the basis of its own knowledge
- The Appellant’s other main written submissions in the context of Ground 1
- The Appellant’s other main oral submissions in the context of Ground 1
- Ground 3
- The non-fault based nature of the AFCS
- The causation test and JM v Secretary of State for Defence
- Key points from the three-judge panel’s decision in JM v Secretary of State for Defence
- The First-tier Tribunal’s approach to the decision in JM v SSD
- The Appellant’s challenge to the FTT’s approach to the decision in JM v SSD
- Pulling the threads together
- Conclusions