[2024] UKUT 238 (AAC)

One focus of the oral argument of the parties before me concerned what the (first) First-tier Tribunal had decided on 15 June 2021.

The appellant argued that the (first) First-tier Tribunal had decided that all of his hearing loss had been (predominantly) caused by service. Accordingly, albeit on the basis of the BK (Afghanistan) line of case law, it had been wrong for the FTT to have trespassed on this and redecide the extent to which his hearing loss had been caused by service.

The respondent argued that the issue before the (first) First-tier Tribunal was limited to whether the appellant had any hearing loss that had been caused by service. In overturning the Secretary of State’s negative decision on this issue all the (first) First-tier Tribunal had been deciding was that the appellant had an injury (hearing loss) which had been caused by service. But that tribunal was not in so doing assessing the extent of the appellant’s hearing loss. Further, and in the alternative, all the FTT had done was to assess the extent of the appellant’s hearing loss on the basis of all the evidence before it and found it fell below the minimum tariff in the AFCS, and it was not in so doing deciding the extent of the hearing loss caused by service.

As will become apparent in the discussion below, in my judgement the correct approach to identifying what the (first) First-tier Tribunal had decided is (i) to consider what question or issue was before it, and (ii) in that context consider what it had decided.