[2024] UKUT 170 (AAC)

As originally drafted, Ground 1 alleged that the FTT fell into error by utilising impermissible methods to find facts. This proposition was supported by three discrete sub-grounds, namely that the FTT made findings (i) on the basis of no evidence (‘the nil evidence issue’), (ii) on the basis of material that was not part of the case (‘the immaterial matters issue’), and (iii) on the basis of the Judge’s misunderstanding of her role (‘the controversial recollections issue’).

As to the first of these, the exemplar for the nil evidence issue appears to be the following passage at paragraph 14.3 of the FTT’s decision:

Objection was taken to this passage on the basis that “there is no evidence to support any of the above” (grounds of appeal at §34). This submission goes nowhere. This extract simply contains a description of the conditions at the main base, doubtless informed by the panel’s own knowledge. There is no suggestion it is in any way inaccurate or misleading. Moreover, it was not material to the way in which the case was actually decided. In the final analysis, as we shall see in relation to Ground 3, the FTT was not persuaded that the Appellant’s melanoma was caused by sun exposure after April 2005 – and the description of the MOB environment was not instrumental to that conclusion.

Secondly, the immaterial matters issue concerns a challenge to paragraph 14.5 of the FTT’s decision and in particular the reference to “our collective knowledge from such media exposure”. This objection has already been addressed in the preceding section of this judgment. The short answer is that the FTT was responding to an ambitious submission by counsel that the Appellant “was out in the heat and sun for 10-12 hours a day during his entire tour and that during this time he was wearing mainly shorts and T-shirts” (paragraph 14.4). The FTT’s finding that he would have been wearing full combat dress when out on patrol was, as we have seen, entirely consistent with the Appellant’s own evidence.

Thirdly, the controversial recollections issue turned on the Judge’s comment that while posted to Afghanistan she had not seen army personnel in shorts. This point is also subsumed in the discussion above and has no merit.