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Pulling the threads together
Pulling the threads together
I agree with Mr Hays’s submission that the final paragraph of the FTT’s decision is telling:
We have also noted the IMEG conclusion that each case should be considered on its facts. Had there been no pre 2005 sun exposure at all (not only in service), and Mr C were very much younger then there might be an argument for a service cause but bearing in mind the medical evidence that UVR is not the only factor. On the evidence in this appeal, this is not such a special case.
In summary, the FTT was postulating that even if there had been no pre-2005 sun exposure then the Appellant would not necessarily have succeeded in an AFCS claim. This passage, and a fair reading of the decision as a whole, confirms that the FTT was influenced in reaching its conclusion as to causation by three factors in particular. The first was that the Appellant’s age was important – in particular, the exposure during AFCS service took place when he was in his late 30s (or older) and not when he was a young adult. The second was the significance of latency, with diagnosis in the fifth decade of life being the period of peak incidence. The third was that UVR is by no means the only factor in causing melanoma. Strictly speaking, and given the finding that post-2005 exposure was not causative, the FTT did not need to delve into the predominancy test – the Appellant’s case (and, of course, the burden of proof was on him) fell at the first hurdle in paragraph 118 of the decision in JM.
- 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