[2024] UKUT 238 (AAC)

The decision of the Court of Appeal in Secretary of State for Defence v Duncan and McWilliams [2009] EWCA Civ 1043; [2010] AACR 5 provides general (and binding) authority for the proposition that the relevant date for assessing the injury is the date of the decision on the claim (or that aspect of the claim) and not the date of the injury itself, and that the task of the decision maker is to identify the descriptor most accurately describing the injury: see paragraphs [47]-[55] and [110] of that decision. As the Court of Appeal made plain (at para. [50]) “all relevant evidence before the tribunal should be considered when assessing which injuries were caused by service, and what their actual and likely trajectories were”.

Duncan and McWilliams also explains that the intention behind the immediate predecessor to the AFCS (with which it was concerned, though the same must in my view apply to the AFCS) “was to provide a fair system, easy to administer” (at paragraph [2]) and, as the initial decisions on claims is taken by lay persons appointed by the Secretary of State, it was important that “the scheme should be relatively simple” (para. [3]). The Court of Appeal later refers to decision making under the AFCS being “a practical kind of jurisprudence” and the AFCS being “a practical scheme intended to work broad justice” (para. [93]).

As I have foreshadowed in paragraph 54 above, the identification of what the (first) First-tier Tribunal was deciding must begin with the statutory basis under which the appeal came before it and on which it was to be decided. That is covered primarily by section 5A of the Pensions Appeal Tribunals Act 1943.

Section 5A of thePensions Appeal Tribunals Act 1943 deals with appeals against specified decisions made under the AFCS. Under section 5A(1)(b) the (only) question for the (first) First-tier Tribunal was “whether the [Secretary of State’s decision of 19 February 2019] was rightly made on that [specified] ground”. As was confirmed by the three-judge panel of the Upper Tribunal in paragraph [25] of JM v SSD [2015] UKUT 332 (AAC); [2016] AACR 3, the ground of the Secretary of State’s decision is that the statutory condition of entitlement was not satisfied. JM was confirming what was said in paragraph 12 of CAF/656/2006. Paragraph 11 of CAF/656/2006 (further) sets out that the wording of section 5A(1)(B) makes apparent that it is the decision appealed against and the ground on which that decision was made which define the scope of the appeal.

What then was the specified ground of the 19 February 2019 decision of the Secretary of State? In my judgement, the ground was, as the Secretary of State contends, (only) that the appellant‘s hearing loss was not wholly or partly caused by service. The key reason for that decision (which as CAF/656/2006 and JM confirm is not the ground on which the Secretary of State’s decision was made) was that the appellant would have been sufficiently protected against excessive noise in the workplace (reasoning with which the (first) First-tier Tribunal very arguably did not grapple, though that is not a matter for me as that tribunal decision was never challenged and is not under appeal before me).

No part of the Secretary of State’s decision of 19 February 2019 purported to determine the extent of the appellant’s hearing loss or the extent to which it was caused by service. That this was the ground of the Secretary of State’s decision is, moreover, consistent with terms of article 8(1) of the AFCS and the critical entitlement provision that the appellant had an injury which was caused by service. Bearing in mind that the appellant’s claim was (understandably) put on a fairly general basis about the loss of his hearing in both ears and that the hearing loss had been caused by service, and bearing further in mind (per Duncan and McWilliams) the need for a non-technical approach to adjudication by the Secretary of State’s decision makers, it seems to me that what the (first) First-tier Tribunal was limited by section 5A(1)(b) of thePensions Appeal Tribunals Act 1943 to deciding was whether the Secretary of State had been right to decide that none of whatever hearing loss the appellant may have had had been caused by service. That specified decision of the Secretary of State on its own determined, per regulation 3(1)(a) of the Specified Decisions Regs, whether a benefit was payable. And that decision, following JM and CAF/656/2006, was a decision that the statutory condition of entitlement in article 8 of the AFCS was not met. In these circumstances, it was not necessary, indeed it would have been illogical, for the Secretary of State to have made a further specified decision, under regulation 3(1)(b) of the Specified Decisions Regs, about the amount payable under an award of benefit. And it was at that regulation ‘3(1)(b) stage’ of specified decision making in this case that the extent of the hearing loss, and potentially the extent of the hearing loss caused by service, came into issue.

I am mindful that section 5A of thePensions Appeal Tribunals Act 1943 may not be the end of the matter as it can be supplemented by section 5B of the same Act. Section 5B(a) mirrors section 12(8)(a) of the Social Security Act 1998 and required the FTT in this case to consider any issue raised by the appellant (or the Secretary of State) in relation to deciding whether the Secretary of State’s specified decision as to satisfaction of article 8 of the AFCS was rightly made. It seems to me unlikely that that section 5B(a) consideration could extend to deciding the entirely separate and distinct issue, under regulation 3(1)(b) of the Specified Decisions Regs, of the level of any award to be made to the appellant for his bilateral hearing loss. That would seem to run contrary to the need for the issue raised in the first appeal to be in relation to whether article 8 of the AFCS was satisfied. Moreover, it is plain the (first) First-tier Tribunal did not take this step and, as I have noted above, it is no part of the appellant’s case that a decision on the correct tariff level was not required after the (first) First-tier Tribunal’s decision.

However, even if it is arguable that section 5B(a) of thePensions Appeal Tribunals Act 1943 enabled the appellant to raise an issue about the extent to which his hearing loss had been caused by service on his appeal about satisfaction of article 8 of the AFCS, and even assuming he was raising such an issue in his appeal when he said the “hearing loss is [definitely] severe”, I can find nothing in the (first) First-tier Tribunal’s decision that gives any clear consideration to this raised issue, let alone a clear decision by that tribunal on that issue. That, I have to say, is unsurprising. At this stage in the decision-making process, no decision had been made as to the severity of the appellant’s bilateral hearing loss. The (first) First-tier Tribunal would have known this and have known that its decision would have led to a tariff decision being made by the Secretary of State (i.e., a decision as to the extent of the hearing loss). Moreover, the appellant’s argument about the severity of his hearing loss was not directly or obviously about how much of that loss had been caused by service, and nothing in the Secretary of State’s decision-making on whether article 8 was satisfied was in terms of it only being some of the hearing loss that was caused by service. In any event, even if the (first) First-tier Tribunal ought to have considered this issue under section 5B(a), there is nothing showing it clearly made a decision on this issue, and its decision is not under appeal.

It is the case, however, that as a matter of fact the (first) First-tier Tribunal considered that two issues arose on the appeal before it: first, whether the appellant had any bilateral hearing loss and, second, if he did, whether the hearing loss was caused by service. For the reasons I have given above, I consider the (first) First-tier Tribunal was wrong to consider, per section 5A(1) of thePensions Appeal Tribunals Act 1943, that an issue before it was whether the Secretary of State had rightly rejected the claim on the ground that the appellant had no injury/hearing loss. But the (first) First-tier Tribunal did decide both that the appellant suffered from bilateral sensorineural hearing loss and that that injury had been caused by service. It may be that its consideration and decision on the first issue arose under section 5B(a) of thePensions Appeal Tribunals Act 1943, though its decision and reasoning is silent on this if this was its reasoning.

It was in the context of deciding whether the appellant had any hearing loss that the (first) First-tier Tribunal relied on the Institute of Naval Medicine’s (INM’s) report and, per paragraph 17 of its reasons, “therefore found that….the appellant suffered from bilateral sensorineural hearing loss”.

However, even assuming that whether the appellant had bilateral hearing loss was an issue on that appeal, this was the sole context for the (first) First-tier Tribunal decision and its reliance on the INM report. It was satisfied that the appellant had hearing loss because of its acceptance of the cogency of the evidence in the INM report, and the (first) First-tier Tribunal then further decided that the hearing loss had been caused by service. But, as I have already said, it did not purport to decide the level of the hearing loss (i.e., and per Duncan and McWilliams, identifying the descriptor most accurately describing the injury).

The more difficult issue is whether the (first) First-tier Tribunal decided that the whole of the appellant’s 2018 presenting hearing loss was caused by service. It did not expressly make this decision. Moreover, as I have indicated above, it did not really grapple with the Secretary of State’s case on causation that the appellant would have been sufficiently protected in the workplace and so any hearing loss the appellant had could not have been caused by service. Additionally, it was not, for the reasons I have endeavoured to give above, an issue which the (first) First-tier Tribunal was legally bound to decide. Furthermore, its use of “to this extent” indicates that it considered its decision was limited. On the other hand, the (first) First-tier Tribunal rejected the Secretary of State’s reliance on causation (albeit it may not have adequately explained why it did so), and as it was assessing matters at the date of the decision on the claim, it may be argued that it was deciding that all of the hearing loss it decided the appellant had had been caused by service.

In the end, I have decided it is not necessary for me to decide this point. I say this because the appellant, having abandoned his estoppel argument, accepts that the FTT was entitled as a matter of law in deciding the tariff decision (which he accepts it was required to do on his appeal) to redecide matters which the (first) First-tier Tribunal had decided. The appellant’s argument is that in so doing the FTT had to act in accordance with the guidance stemming from BK Afghanistan and it had failed to do so.

I would simply add, in terms of a general perspective that the extent to which an injury was caused by service can lawfully come into play at the stage of determining the amount payable under an award of benefit, finds support in consideration of some of the other injuries covered by Schedule 3 to the AFCS and the Duncan and McWilliams approach to how claims should be decided, as well as by the fact that article 8 of the AFCS does not necessarily require that issue to be decided at that stage. One particular injury I have in mind is the Mental Disorder descriptor set out in paragraph 12 above. It requires that the mental disorder caused by service causes functional limitation or restriction which…..is expected to continue for five years. There may be no dispute in such a case that the service person’s initiating mental disorder was caused by service. However, on its face this descriptor would seem to allow for consideration to be given to other non-service causes which might instead be said to be the cause of the functional limitation or restriction being expected to continue for five years, and that particular consideration may only arise at the stage of the identifying the most appropriate descriptor. As for Duncan and McWilliams, it identified a need for flexibility in decision making (see for example paragraphs [50] and [55] of the Court of Appeal’s decision) and seemingly did not discount reassessing which injuries were caused by service even at the tariff selection stage of decision-making: para [50].

Turning back to the first ground of appeal and whether the FTT erred in law in not following BK (Afghanistan), it is no answer to that ground to say that this argument was not made to the FTT. The FTT has to be judged on whether it erred in law in coming to its decision and such an error can arise independently of the actual arguments made to the FTT.

Further, reliance on estoppel having been abandoned, it is not clear to me that the issue estoppel principle - that an issue which was necessarily common in both proceedings and which was decided in the earlier proceedings is binding in the second proceedings – necessarily reads across into the BK Afghanistan line of case law. BK Afghanistan itself makes plain (at para. [44]) that the basis for the guidance it endorses has nothing to do with estoppel. I am not sure, therefore, that it can be a complete answer to the appellant’s first ground of appeal to show that there was no necessarily common issue in both appeal proceedings before the (first) First-tier Tribunal and the FTT, and therefore the BK (Afghanistan) line of authority does not apply.

This perspective would seem to be supported by the fact that in each of BK Afghanistan, Sultana and Patel it was a core finding of fact that was directly common in both sets of proceedings. In BK Afghanistan the common factual issue was whether the appellant had committed terrorist acts; in Sultana the common factual issue was whether the appellant had relied on false documents; and in Patel the common issue in both sets of proceedings was whether the appellant had committed deception, albeit the first finding that she had not committed a deception had been made in her husband’s appeal. Moreover, paragraph [31] of BK Afghanistan identifies the key point as being the approach to be taken by the second tribunal to findings of fact made by the first tribunal. And it may be observed that in each of these three Court of Appeal cases the legal issues may be said to have been different: e.g., in BK Afghanistan the legal issue on the first appeal concerned BK’s claim for asylum, the issue on the second appeal was the cancellation of the indefinite leave to remain BK had been granted five years after his claim for asylum had been decided against him. Additionally, the appellant’s core argument under the first ground of appeal relies on the sixth guideline in paragraph [32] of BK (Afghanistan) which is concerned with findings of fact. Furthermore, his argument, based on BK Afghanistan, is that the FTT should have regarded as settled the (first) First-tier Tribunal’s ‘finding of fact’ that the “INM report was the most reliable” report.

Where the lack of commonality between the statutory issues being decided by the two different tribunals may have some relevance is as a relevant factor bearing on that which it is that the second tribunal has to conscientiously decide when applying the BK (Afghanistan) guidance. The (first) First-tier Tribunal was, as is accepted, not deciding the level of the hearing loss. It decided, and only decided, whether the appellant had bilateral hearing loss and whether that injury was caused by service. The FTT had to decide, and per paragraph [44] of BK Afghanistan, conscientiously decide, the extent of the appellant’s hearing loss.

However, I can put the observation in the immediately preceding paragraph to one side. This is because the crucial issue in this case, in my judgement, is the ‘finding of fact’ on which the appellant seeks to base his BK Afghanistan argument. That finding is that the “INM report was the most reliable” report. I have to say I have doubts about whether an assessment as to the reliability of evidence constitutes a finding of fact as opposed to being an evaluative judgement (see the discission on this in paragraph [55] of Disclosure and Barring Service v AB [2021] EWCA Civ 1575; [2022] 1 WLR 1002).

More importantly, however, based on the (first) First-tier Tribunal’s reasoning that finding (if it was a finding of fact) was made only in the context of the (first) First-tier Tribunal deciding whether the appellant had (any) bilateral hearing loss. It was not made in the context of the (first) First-tier Tribunal deciding whether the hearing loss had been caused by service. Nor, it must follow, was it made in any adjudication the (first) First-tier Tribunal may have made as to the extent to which the hearing loss was caused by service. Even less so was it made in the context of that tribunal deciding the extent of the appellant’s hearing loss. As is agreed, that separate statutory question remained to be addressed and answered only after the (first) First-tier Tribunal had made its decision. It was not therefore a finding by the (first) First-tier Tribunal that the extent of the appellant’s hearing loss was, per what the INM report indicated, bilateral hearing loss of 65dB in each ear. The FTT in its decision did not either trespass on or subvert the (first) First-tier Tribunal’s decision that the appellant had hearing loss or that the hearing loss had been caused by service. It was not therefore allowing either of those issues to be relitigated.

Translating this into the language of the Devaseelan guidance as set out in paragraph [32] of BK Afghanistan:

per guidance factor (1), the (first) First-tier Tribunal’s decision was taken as the (necessary) starting point by the FTT, and that decision was an authoritative assessment of the appellant’s status at that time on the basis of the issues before the (first) First-tier Tribunal at that time (namely, but limited to, whether the appellant had hearing loss which was caused by service);

per guidance factor (6), although there was no new evidence before the FTT and the appellant was relying on the INM report, and even though the FTT accepted “the issues as settled by the [first First-tier Tribunal’s] decision”, the FTT in deciding the separate statutory question before it could not make its decision “in line” with the two issues decided by the (first) First-tier Tribunal. This is because it had to decide the separate statutory issue before it (the extent of the hearing loss) and that issue had not been settled by the (first) First-tier Tribunal; and

per guidance factor (8), the first seven guidance factors did not cover the appeal to the FTT.

Accordingly, as factor (6) in the Devaseelan/BK Afghanistan guidance does not apply, and the first ground of appeal is founded on that factor (6) alone, the first ground of appeal must fail.

However, even if this is to read the Devaseelan/BK Afghanistan guidance too narrowly and too literally, and more broadly speaking the starting point for the FTT under that guidance was that the INM report had been found to be the most reliable evidence generally about the appellant’s hearing loss, in my judgement the FTT did not offend against the more general guidance in BK (Afghanistan) (as endorsed in Sultana and Patel). I agree with the Secretary of State that, per paragraph [43] of BK Afghanistan, what the FTT had to do was “address its mind to the reasons put forward by the party [the Secretary of State] who was seeking to depart from the previous finding as to why that finding is unreliable”. The FTT did this. The extent of the appellant’s hearing loss had not been in issue before the (first) First-tier Tribunal and the FTT was “not satisfied that the previous Tribunal had addressed its mind to the matter of quantum or tariff selection when giving reasons for the entitlement decision, and was satisfied that it certainly had no intention of biding any future Tribunal in deciding a tariff selection”. Furthermore, the FTT set out why it did not consider the INM report to be the most reliable. And, in the proceedings before it, the FTT, in fairly and conscientiously deciding the appeal as to the extent of the appellant’s hearing loss, gave the appellant adequate notice that it wished to consider the reliability of the INM report: see further on this under the second ground of appeal below.

For all these reasons, the first ground of appeal fails. I can take the remaining two grounds much more quickly.

The FTT in my judgment did not err in law in not giving the appellant an opportunity to address it on its view that the flat line hearing loss in the INM report was not consistent with typical noise induced hearing loss. I have concluded this for two reasons. First, the appellant’s arguments through Mr Searle before the FTT were not concerned with cogency of the findings in the INM Report. The appellant’s argument to the FTT was simply that it was bound by that report. Second, and in any event, I was taken through the transcript of the FTT’s hearing and it is apparent that, notwithstanding the appellant’s stance, the FTT did seek to raise with the appellant and Mr Searle concerns about the INM’s report. The appellant did not seek an adjournment to address the concerns there might have been about that report. In these circumstances, I do not consider the FTT acted unfairly or otherwise erred in law when it relied in its reasoning (a) on the fact that the INM Report had not been asked to comment on flat line hearing loss across all frequencies, and (b) in finding that such flat line hearing loss was not consistent with noise induced hearing loss. In the circumstances of the appeal to the FTT and how it was argued, it seems to me that the FTT did its best to raise with the appellant, through Mr Searle, its concerns about the INM’s report.

In the absence of any evidence showing the FTT was plainly and obviously wrong in its view about the Institute of Naval Medicine’s report, and bearing in mind the specialist membership of the FTT and the need for it to bring that specialist expertise (medical as well as legal and military) to the evidence before it, the FTT did not make a legal perverse decision about that report.