[2024] UKUT 191 (AAC)

Ms Skander, on behalf of the Appellant, submitted that the Tribunal’s decision discloses four manifest errors of law.

The first is that the Tribunal allegedly made a material mistake as to fact. In particular, Ms Skander alighted on the distinction between Dr Cahill’s report -which had recorded that the Appellant had “not received any formal psychological treatment to date” (emphasis added) – and the Tribunal’s decision which, having found that the Appellant had “not received any formal psychological treatment” (without the qualifier “to date”), went on to find as a fact that he had undergone a course of CBT. Ms Skander submitted that the Tribunal had misunderstood Dr Cahill’s evidence – in doing so, it had erroneously adopted evidence that was correct when it had been stated in 2017 as still being correct six years later in 2023.

The second is a submission, in the alternative, that if there was no mistake then there must have been a procedural irregularity. Ms Skander contended that if the Tribunal was using “formal psychological treatment” in a technical sense, for example, as excluding CBT, then as a matter of fairness the point should have been put to the Appellant for comment (who may have wished to adduce further evidence by way of reply). In this context counsel prayed in aid the principle in Butterfield and Creasy v Secretary of State for Defence [2002] EWHC 2247 (Admin).

The third is that the reasons for the Tribunal’s decision are said to be inadequate, applying the well-known test adumbrated in South Bucks District Council v Porter (No.2) [2004] UKHL 33. Ms Skander’s submission was that the question of the permanence of the Appellant’s mental disorder was central to the appeal before the Tribunal, and as such the Appellant needed to understand how the panel had resolved the question of treatment. As it was, she argued, the Appellant and his advisers were at a loss to understand what was meant by the expression “formal psychological treatment” as deployed by the Tribunal.

The fourth avers that the Tribunal gave weight to immaterial matters. In particular, it is submitted that the Tribunal “rearranged the sentences and words of Dr Cahill’s report, thereby changing the meaning of what was conveyed in his evidence and in doing so gave weight to matters that were immaterial” (skeleton argument at paragraph 38). As such, Ms Skander submitted the present case was effectively on all fours with the Upper Tribunal’s decision in LM v Secretary of State for Defence (CAF/2760/2019), where it was found that the FTT had misunderstood the expert medical evidence.