[2024] UKUT 191 (AAC)

The Appellant’s skeleton argument asserted that “the grounds of appeal go to the FtT finding of fact that at the time of the hearing ‘[Mr H] has not received any formal psychological treatment’ at §35” (paragraph 7). In her oral submissions Ms Skander sought to argue that the materiality of this finding of fact was in effect self-evident, contending that there were two ways of viewing its relevance. The first was by way of what she described as a broad analysis, namely that a finding of fact that there had been no formal psychological treatment was plainly material to the question of permanency. The second was what she termed as a more forensic approach. In particular, she submitted that one cannot safely answer the question as to what remans to be done and whether it was clinically indicated without safe findings of fact as to what treatment had already been undertaken.

However, I am satisfied that the Tribunal’s finding that the Appellant had not received any formal psychological treatment was, as Mr Hays submitted, immaterial to the outcome of the appeal. The Tribunal applied the correct and agreed legal test for permanence, which took into account both the dictionary definition and the Article 5(7)(a) definition. In applying that more holistic test, the Tribunal was plainly aware both that Dr Cahill’s report dated from 2017 and that its own task was to consider the Appellant’s current state (namely, as at the date of the decision under appeal). At paragraphs 35 and 36 of its decision, the Tribunal had summarised the treatment that the Appellant had already received. There is, moreover, no suggestion that in doing so the Tribunal had overlooked any relevant treatment in its summary. In its conclusions, at paragraph 55, the Tribunal focussed on EMDR treatment as therapy which had been recommended as being of potential benefit to the Appellant but which had not as yet been accessed. Applying the appropriate legal test, the Tribunal accordingly found that the Appellant’s mental disorder was not permanent. In reaching that conclusion the Tribunal’s reasons had properly considered the treatment that had already been undertaken. The label or adjective used to describe that previous treatment was in no way determinative of the appeal. Indeed, the Appellant might have had the treatment summarised at paragraphs 35 and 36, or might (hypothetically) have had no relevant treatment at all, but either way the findings at paragraphs 55 and 56 explained adequately, and independently, why the Tribunal concluded that his mental disorder was not “permanent” such that he might qualify for a higher level Table 3 descriptor in respect of his PTSD.

Furthermore, and in any event, the Appellant’s four more specific grounds of appeal are not persuasive for the following reasons.