[2024] UKUT 238 (AAC)

In opposing this appeal to the Upper Tribunal the Secretary of State for Defence argues as follows.

First, the sole issue for the (first) First-tier Tribunal was whether the appellant’s injury was caused by service. That tribunal was not deciding the extent of any injury caused by service. It had qualified its finding that the appellant’s hearing loss was predominantly caused by service, and the appeal before it was allowed, to this extent. Nor had the (first) First-tier Tribunal made any finding as to the extent of the appellant’s hearing loss. The extent of the appellant’s hearing loss remained to be decided, and that is what had occurred, leading to the FTTs decision.

As for the appellant’s first ground of appeal, the Secretary of State argued that BK (Afghanistan) is only authority for the proposition that the earlier finding or decision is a starting point, rather than being determinative. This was plain from paragraph [43] of BK(Afghanistan) where the Court of Appeal said:

“… That …raised the question of the appropriate response to [the Adjudicator’s] earlier findings of fact. [Counsel for the SSHD] …accepted that as a matter of practice, the tribunal must address its mind to the reasons put forward by the party which is seeking to depart from the previous findings as to why that finding is unreliable so that it should in effect be carried forward into the determination of the appeal now before it. That must be right given what the UT said in the Mubu case about the earlier decision being a starting point, rather than determinative of the issue.

Moreover, in this context SSHD v Patel [2022] EWCA Civ 36 (at paragraph [31]) makes it clear that estoppel does not apply, but that the overarching consideration is one of fairness:

“…the proper approach to be taken by a FTT judge faced with a decision made in an earlier appeal was set out fully at [45] to [50] of [Sultana v SSHD [2021] EWCA Civ 1876]. It would not be helpful to repeat the analysis other than in the following very summary form. The essential position is that the second FTT judge cannot be subject to any principles of estoppel in relation to an earlier finding. Rather, the judge must conscientiously decide the case in front of them applying principles of fairness. Those principles include the potential unfairness of requiring a party to re-litigate a point on which they have previously succeeded. These propositions were drawn from Devaseelan, Djebbar v SSHD [2004] EWCA Civ 804 and BK (Afghanistan).”

The Secretary of State’s primary argument opposing the first ground of appeal is that there was no necessary overlap between the matters decided, or findings made, by the (first) First-tier Tribunal and that which was decided/found by the FTT, and therefore the BK (Afghanistan) line of case law did not apply.

In the alternative, the Secretary of State argued that if the FTT’s findings had overlapped with those made by the (first) First-tier Tribunal, the FTT had, per para. [43] of BK (Afghanistan), sufficiently and conscientiously addressed its mind to whether it should depart from any findings said by the appellant to have been made by the (first) First-tier Tribunal.

Turning to grounds 2 and 3, the Secretary of State argued that the expert FTT had addressed all the relevant medical evidence in detail, the consideration that flat line hearing loss is not consistent with noise induced hearing loss is matter of general medical knowledge which it was appropriate for the FTT to apply, and in any event was only one part of the FTT’s analysis. In these circumstances, the FTT did not need to raise the point with the parties, and it had arrived at a decision that was rationally open to it.