[2024] UKUT 238 (AAC)

Pursuant to permission granted by the First-tier Tribunal, the appellant appeals to the Upper Tribunal on three main grounds.

Ground 1 is that the FTT erred in law by allowing the respondent to relitigate factual matters finally decided by the (first) First-tier Tribunal. In essence, this contains the key argument that the Secretary of State on the tariff decision, and on appeal the FTT, was bound by the issues of fact finally determined by the (first) First-tier Tribunal which were common to both the entitlement decision and the tariff selection decision.

As I have indicated earlier, this main ground of the appeal is not based on any estoppel argument but the argument that the FTT erred in not following the approach set down in paragraphs [32]-[39] of SSHD v BK(Afghanistan) [2019] EWCA Civ 1358; [2019] 4 WLR 111, and factor 6 within para. [32] of BK(Afghanistan) in particular, which says:

“(6)

If before the second adjudicator the appellant relies on facts that are not materially different from those put to the first adjudicator, the second adjudicator should regard the issues as settled by the first adjudicator's determination and make his findings in line with that determination rather than allowing the matter to be re-litigated.”

Reliance was also placed on TK (Consideration of Prior Determination, Directions) Georgia [2004] UKIAT 149 under the first ground of appeal, and the statement in paragraph [19] of TK that :

The first ground of appeal argues that as a result of this case law, the FTT erred by permitting the Secretary of State to re-litigate the same arguments he had made before the (first) First-tier Tribunal, namely the Secretary of State’s argument that the March 2016 audiogram was the most reliable measure of the appellant’s hearing loss and that it should be preferred to the Institute of Naval Medicine’s report of 16 October 2018 because any hearing loss after March 2016 was not attributable to service. In the hearing before me the point was put slightly differently. It was argued that the FTT had erred in law by allowing the issue of causation (that is, whether all of the appellant’s hearing loss presenting in 2018 was caused by service) to be relitigated

Ground 2 is that the FTT erred in law by failing to give the parties a reasonable opportunity to address relevant matters. It is argued under this ground that the parties ought to have been afforded the opportunity to address the FTT’s view that the flat line hearing loss in the Institute of Naval Medicine’s report was not consistent with typical noise induced hearing loss.

Ground 3 is that the FTT erred in law by reaching a decision that no reasonable First-tier Tribunal could have reached. It is said under this ground that no reasonable First-tier Tribunal could have concluded that the Institute of Naval Medicine’s report was not consistent with noise induced hearing loss given (it is argued) “there was a total absence of medical opinion before the [FTT] to support such a finding”.