[2024] UKUT 238 (AAC)

The appellant served in the Army from March 2011 to November 2018. Whilst still in the Army, on 10 April 2018 he submitted a claim under the AFCS. It was treated as being a claim for bilateral noise induced sensorineural hearing loss (”BNISH” or “hearing loss”). Understandably, this is not what the appellant said in his claim form. What he claimed for, under “Condition/Injury/Illness you are claiming”, was “Loss of hearing on both left and right ears”. The appellant went on in the same claim form to explain why he thought his loss of hearing had been caused by his service in the Army. That claim was rejected by the Secretary of State on 19 February 2019.

The decision of 19 February 2019 accurately set out the claimed injury as “Loss of hearing on both left and right ears”. Under “Incident/Exposure/Behaviour” the decision form set out the appellant’s case that the incident/exposure was in 2016. The decision form then narrated what the appellant had said on his claim form about losing his hearing gradually during his service in the Army, particularly after an exercise in Canada. The appellant had described in his claim form how he had felt some hearing loss as a drummer in his company, but the hearing loss had got worse after the Canada exercise. That exercise, as described by the appellant in his claim form, involved him driving a Warrior fighting vehicle and there had been lots of shooting and other vehicle noise exposure.

The reasons for the decision given in the 19 February 2019 decision form were that there was no evidence in the appellant’s electronic medical records of unprotected noise exposure due to service, and the Secretary of State (therefore) did not accept, per article 8(1) of the AFCS, that the appellant’s hearing loss was wholly or partly caused by service. The Secretary of State decision maker expressly relied on “the reason provided by the Medical Advisor on page 3&4 [of the decision form]”. The request for medical advice referred the medical advisor to the “potential process causes” (e.g., the appellant driving the Warrior vehicle), said that the hearing tests had been inconsistent, and asked for advice as to whether “service is the predominant cause of hearing loss”. The medical advice considered eight medical results from between 2016 and 2018 concerning the appellant’s hearing. It concluded that:

“The results of the objective and subjective tests of hearing are inconsistent and conflicting. There is some evidence to support a diagnosis of bilateral sensorineural hearing loss. However, there is no evidence of unprotected noise exposure due to service. The Control of Noise at Work Regulations 2005….came into force for all industry sectors in Great Britain on 6 April 2006 and therefore [the appellant] would be sufficiently protected against any excessive noise in the workplace. On the balance of probabilities, the hearing loss is not wholly or partly caused by service and can be rejected under AFCS.”

Pausing at this point, it seems clear, in my judgement, that this decision was rejecting the claim on the ground that the claimed injury had not been caused by service. It was not a decision that the appellant did not have an injury. It was a ‘no service causation’ decision. Whether that lack of causation was in respect of the whole or any of the appellant’s hearing loss as it presented at the time of the 2018 claim was irrelevant to the decision. The decision was not, as it could have been, that only part of the hearing loss was caused by service (because some of the hearing loss presenting in 2018 had another, non-service, cause.) In the language of section 5A(1)(a) of thePensions Appeal Tribunals Act 1943 and regulation 3(1)(a) of the Specified Decisions Regs, (the lack of service) causation was the ground on which the claim was rejected.

As the appellant had left the Army by the time of the decision, for completeness the decision also considered whether article 9(1)(c) of the AFCS was met, but this was also rejected. It did so because “[f]ollowing the audiogram in March 2016, there is no medical evidence of noise exposure due to service. [The appellant was] downgraded to protect you from any noise exposure. [S]ervice is not the predominant cause of worsening of the hearing loss.” The medical advice also addressed worsening and article 9(1)(c), though that advice was not expressly incorporated into the Secretary of State’s decision or the reasons for it (albeit the advice is in almost identical terms to the decision and the reason for it). The relevant part of the medical advice on ‘worsening’ reads:

“Following the audiogram in March 2016, there is no medical evidence of noise exposure due to service. [The appellant] was downgraded to protect him from any noise exposure. [T]herefore service is not the predominant cause of worsening of the hearing loss. Worsening can be rejected under Article 9[(1)](c).”

This decision was challenged by the appellant. In this (first) appeal the appellant argued:

“[t[he hearing test are inconsistent and hearing loss is [definitely] severe and caused by noise from service. I had low concentration at times and confusion with the noises to respond to I had to arrange a hearing test in Germany on my own and there it was confirmed that there is a hearing problem”.

On its face, this appeal was arguing that the hearing loss was caused by a service rather than that it was made worse by service.

The Secretary of State reconsidered the decision post this appeal but maintained it. In that reconsideration it was said that the Secretary of State remained content on the balance of probabilities that the appellant’s hearing loss was not wholly or partly caused by service. This was because:

“Whilst it is agreed that the objective and subjective hearing tests are inconsistent and conflicting with some evidence to support a diagnosis of bilateral sensorineural hearing loss, there remains no evidence within your medical records of unprotected noise exposure during your Army service.”

In the appeal response to what I will term the (first) First-tier Tribunal, the Secretary of State referred to the decision under appeal as being a specified decision that “the condition hearing loss is not due to, or made worse by, service” and asked the tribunal to:

“decide if the claimed condition Hearing loss is either predominantly caused by, or predominantly made worse by, service in accordance with the rules of the [AFCS].”

I would note, again, that no part of this ‘section 5A(1)(b) of thePensions Appeal Tribunals Act 1943’ question to the (first) First-tier Tribunal was about the extent of the appellant’s hearing loss. Nor was the question being asked whether the appellant had any hearing loss. The Secretary of State was only asking the (first) First-tier Tribunal to decide whether the claimed condition was caused (or made worse) by service.

On 15 June 2021, the (first) First-tier Tribunal allowed the appeal. Its decision reads:

“The unanimous decision of the Tribunal was to allow the appeal against the decision of the respondent that his hearing loss was not predominantly caused by service.

The tribunal found that the appellant suffered from bilateral sensorineural hearing loss and that it was predominantly caused by service.”

In making the first finding – that the appellant suffered from bilateral sensorineural hearing loss – the (first) First-tier Tribunal in my judgement answered a question it had not been asked.

In its reasons for the decision this (first) First-tier Tribunal took the view that the claim had been refused on the basis that “the appellant’s hearing tests were inconclusive as to whether he had suffered hearing loss and that, if he had done so, he had not shown that any such hearing loss was caused by service”. The (first) First-tier Tribunal then proceeded to address both issues. It found on the balance of probabilities that the appellant suffered from bilateral sensorineural hearing loss. In so doing, the (first) First-tier Tribunal founded particularly on the Institute of Naval Medicine’s report of 16 October 2018, which it found was the most reliable and objective report. It was also the most recent. Given the main ground of appeal concerns what the (first) First-tier Tribunal decided or found as a fact about the appellant’s hearing loss, I set out the most relevant parts of its reasoning around the Institute of Naval Medicine report.

“3.

The claim was refused on 19 February 2019…on the basis that the appellant’s hearing tests were inconclusive as to whether he had suffered hearing loss and that, if he had done so, he had not shown any such hearing loss was caused by service…..

14.

On 16 October 2018, tests were conducted by the Institute of Naval Medicine (INM) in Gosport. These test used Auditory Steady State Response (ASSR), which is a way to assess hearing loss by objectively evaluating the electrophysiological thresholds in a subject. The INM test result…and the report based thereon indicated that the appellant had bilateral hearing loss of 65dB across the four frequencies measured, with the exception of at 500Hz in his right ear, which was normal.

15.

As noted above the tribunal was presented with conflicting audiometric evidence, which included conflicting results between objective tests in Swindon, Paderborn and by the INM in Gosport. Of this evidence, however, the tribunal found the INM report, which was also the most recent, was the most reliable. The tribunal found that the Defence Audiology Service at INM is a centre of excellence and used a modern and reliable method to assess the appellant’s hearing loss, which, whilst yielding results which were inconsistent with those from Swindon, were supported by those from Paderborn.

16.

The findings of the INM were also supported by the appellant’s subjective account of hearing loss and the fact that he continued to wear, and apparently benefit from, the hearing aids prescribed in Paderborn.

17.

The tribunal therefore found that, on the balance of probabilities, the appellant suffered from bilateral sensorineural hearing loss….

19.

The tribunal could find no evidence of noise exposure outside service and found that, in the absence of another cause, the most likely cause of the appellant’s hearing loss was noise exposure in service.

20.

Accordingly, the tribunal found that the appellant’s hearing loss was predominantly caused by service and the appeal was allowed to this extent.”

This (first) First-tier Tribunal’s decision was not challenged by either party.

The appellant having succeeded in establishing under article 8 of the AFCS that he had an injury (the hearing loss) which had been caused by service, the Secretary of State then had to decide under article 15 of the AFCS the benefit payable for that injury (that is, the hearing loss). Importantly, it is not disputed that that (second) decision remained to be made. In other words, the appellant accepts that the Secretary of State (and, if that second decision was disputed, the First-tier Tribunal on appeal) still as a matter of law had to decide the extent of the appellant’s hearing loss.

In a decision dated 14 October 2021 the Secretary of State decided that the appellant’s injury of hearing loss did not merit any award under the tariff scheme in the AFCS. The decision of 14 October 2021 stated that there was no evidence of “blast injury to ears of acute acoustic trauma due to impulse noise”, and accordingly in order for an award to be made there had to be evidence that the appellant had bilateral permanent hearing loss of 50-75dB averaged over 1, 2 and 3kHz (per Table 7 in Schedule 3 to the AFCS at Item 13, level 8). The 14 October 2021 decision said that on receipt of the First-tier Tribunal’s decision the appellant’s case had been referred to Veterans UK Medical Services. Those Services had observed that an audiogram performed in an audiology clinic on 15 March 2016 had (a) shown (only) high frequency hearing loss, with the appellant being advised to wear increased hearing protection, and (b) confirmed an average hearing loss over 1, 2 and 3kHz of (only) 25dB on the left and 26dB on the right. In other words, the hearing loss was not as severe as 50-75dB, and therefore no tariff award could be made.

In seeking medical advice before making the above decision, the Secretary of State’s decision maker said that it seemed it had been accepted that the appellant had been a drummer in service, had driven a Warrior vehicle and had been on firing ranges, but at the time he would have been provided with hearing protection. However, the (first) First-tier Tribunal had ruled that the most likely cause of the appellant’s hearing loss was noise exposure in service. The decision maker drew the Medical Advisor’s attention to the Institute of Naval Medicine’s report of 16 October 2018.

The Medical Advisor’s advice referred to an audiogram of 15 September 2016 which had shown severely abnormal hearing thresholds across all frequencies despite no further exposure noise. An ENT assessment in Germany in November 2016 had produced broadly similar results to those in March 2016. The medical advice continued by saying that the accepted noise exposure due to service had been prior to the audiogram in March 2016 and there was no evidence of noise exposure after March 2016. It further stated that it was medically accepted that once an individual was removed from the source (of the noise), no further damage could arise from it. Any further hearing loss the appellant suffered after March 2016 could not, therefore, be attributable to service. (This was seemingly the basis for distinguishing the Institute of Naval Medicine’s report of 16 October 2018.) And the audiogram of 15 March 2016 showed only hearing loss over 1, 2 and 3kHz of 25dB on the left and 26dB on the right.

It was this decision that the appellant appealed to the FTT and which the FTT upheld. Adopting the wording used by the FTT in its decision notice, the question before the FTT under section 5A(1)(b) of thePensions Appeal Tribunals Act 1943 and regulation 3(1)(b) of the Specified Decisions Regs was where to place the accepted condition (i.e., the hearing loss) in the tariff in Part 1 of Schedule 3 to the AFCS.

The FTT’s decision was to:

“dismiss the appellant’s appeal against a decision by the respondent to place his accepted condition:

Bilateral noise induced sensorineural hearing loss:

at or below tariff level.”

In its reasons for decision the FTT recorded as the “Background of the appeal” that the appellant’s claim had initially been rejected as it was not accepted that the appellant’s hearing loss was caused by noise exposure in service, but on appeal the (first) First-tier Tribunal had allowed the appeal and found the appellant suffered from BNISHL which was predominantly caused by service. As for the decision under appeal to the FTT, the FTT described it as a decision that the appellant had not reached the required level of hearing loss for an award under the AFCS, and therefore the accepted condition of BNISHL fell below tariff level. The FTT said that the respondent had considered that the accepted noise exposure was prior to 2016 and that the most appropriate hearing test was an audiogram dated 2016, after which the appellant had been advised to wear increased hearing protection.

The appellant was represented by Mr Searle before the FTT. His argument did not rely on an analysis of the many and differing hearing test results in the FTT’s bundle. The appellant argued, instead, that the FTT was bound by the findings of the (first) First-tier Tribunal and, in particular, was bound by the finding that the Institute of Naval Medicine’s report of 16 October 2018 was the most reliable and most accurate record of the appellant’s hearing loss. At that stage, the appellant’s argument was founded on (issue or cause of action) estoppel to the effect that where an issue had been determined between the parties in earlier proceedings, it was binding on them in subsequent proceedings: per Virgin Atlantic Airways Ltd v Zodiac Seats Ltd [2013] UKSC 46; [2014] 1 A.C. 160.

In rejecting these arguments, the FTT stated that it was not satisfied that the (first) First-tier Tribunal had addressed its mind to the matter of quantum or tariff selection when it gave its reasons for its entitlement decision. Moreover, the FTT was satisfied that the (first) First-tier Tribunal had no intention of binding the FTT in deciding the correct tariff selection. In the FTT’s view, the main finding of the (first) First-tier Tribunal was that the appellant had suffered hearing loss due to service, rather than the quantum of that loss. Looking afresh at the hearing tests before it, the FTT said that it had before it a very clear trail of evidence from cortical evoked response audiometry (CERA) tests. These in the view of the FTT were more reliable than the audiogram tests. The audiogram tests had given inconsistent and unreliable results. Given the very clear thread of evidence of CERA tests between February 2017 and November 2018 showing normal hearing, the FTT said that it could not consider itself bound by the (first) First-tier Tribunal, which the FTT said was dealing with a different appeal. The FTT concluded its reasons for dismissing the appeal as follows:

“The Tribunal is satisfied that, at most, the appellant’s hearing loss due to service can be shown to be as recorded in the March 2016 audiogram, and there is a strong argument that he has no reliably verified hearing loss. The [Institute of Naval Medicine] was not asked to comment on the flat line hearing loss across all frequencies, which is not consistent with noise induced hearing loss. The Tribunal finds that the decision that the hearing loss is below tariff is correct.”