[2025] UKUT 033 (AAC)

In granting permission to appeal on Ground 1 I observed as follows:-

10.

… It is arguable that the First-tier Tribunal has erred in law in its consideration of whether the appellant’s filling repair on 1 February 2021 was caused by service.

11.

The appellant’s case as set out in his claim (p 16 of the First-tier Tribunal bundle) and in other earlier documents (e.g letter of 10 November 2022, pp 138-139 and record of complaint report of 19 February 2021, pp 139-140) was that he was not in pain prior to the filling repair and had (on advice from previous dentists) opted not to have it repaired previously. His case was that he was ordered by his Senior Dental Officer to have a replacement filling and the appointment was booked for that purpose.

12.

The Tribunal records the appellant’s oral evidence to that effect at [18] of the SoR. The Tribunal rejects the appellant’s case in that respect at [43] because “The documentary evidence does not support a finding that the appellant was ordered to undertake the treatment”. It is arguable that the First-tier Tribunal’s reasons in this respect are inadequate as it has not explained why it would have expected documentary evidence of the alleged “order” to exist or why it has rejected the appellant’s evidence that he was “ordered”, despite the consistency of his position in this respect since very shortly after the treatment in question.

13.

If the appellant’s evidence that he was “ordered” was accepted, then it is arguable that would have materially affected the Tribunal’s conclusion that the replacement filling and consequent injury were not “caused by” service. The guidance from the Upper Tribunal in McCabe [2016] AACR 3 at [98]-[102] would need to be considered in this regard.

14.

I add that the Tribunal’s reasons at [44] do not seem to me to assist on this issue as they deal with the separate question of “the appellant’s perception that he had to have the treatment to remain dentally fit”.

In response to this ground of appeal, the Secretary of State submitted as follows:

With regards to the issue of whether [MJU] was unable to refuse dental treatment and therefore “ordered” to undergo the procedure in question. The Secretary of State would agree with the FTT that there is adequate evidence to demonstrate that [MJU] has refused medical treatment whilst in service in the past. Prior to his dental treatment, in 2015 [MJU] had refused physiotherapy being aware that treatment is not mandatory and is that of personal choice. The records also indicate that [MJU] consented to both dental procedures with the risks explained prior. The Secretary of State would agree with the FTT that the filling repair was not a service-related cause.

The Secretary of State’s response is thus, in short, that the Secretary of State remains of the view that as a matter of fact the First-tier Tribunal’s decision was correct.

That is no answer, however, to an appeal to the Upper Tribunal, whose jurisdiction under section 11 of the Tribunals, Courts and Enforcement Act 2007 is concerned with whether the First-tier Tribunal’s decision involved an error of law.

The arguable error I identified when granting permission was that the Tribunal had failed to give adequate reasons for why it had rejected the appellant’s case that he was not “ordered” to undertake the treatment.

It is well established that a failure to give adequate reasons is an error of law. A tribunal’s reasons will not be inadequate merely because they fail to set out every step in their reasoning or even to deal with every point raised by the parties; but to be adequate reasons must deal with the substantial points in the case and be sufficient to enable the parties to understand why they have won or lost and any appellate tribunal to see there has been no error of law: see, eg. R(Jones) v First-tier Tribunal (Social Entitlement Chamber) [2013] UKSC 19, [2013] 2 AC 48 per Lord Hope at [25] and R (Iran) v SSHD [2005] EWCA Civ 982at [13]-[16] per Brooke LJ.

In this case, the only specific reason that the Tribunal gave for rejecting the appellant’s evidence that he was “ordered” to have the dental treatment was that “The documentary evidence does not support a finding that the appellant was ordered to undertake the treatment”. However, given that there is no reason to suppose that there would be documentary evidence of such an order (the Secretary of State having identified none despite my raising this point in the grant of permission), this is in my judgment inadequate as a reason why the appellant’s evidence on the issue has been rejected. While I can understand why the Secretary of State and the Tribunal are sceptical that any officer would have “ordered” the appellant to undergo dental treatment, the appellant’s evidence on this was clear and consistent and if it was to be rejected adequate reasons needed to be given.

The other factual matters on which the Secretary of State relies (i.e. that the appellant had both consented and refused medical treatment on other occasions) also do not help one way or another. It does not follow from what happened on other occasions that the appellant was not “ordered” on this occasion.

The Tribunal in its reasons at [42] places weight on the appellant having consented to the treatment on this occasion, but it does not follow from that that he was not “ordered” to have the treatment (and thus, implicitly, required to give his consent to it).

Although the Secretary of State has not referred to [44] of the Tribunal’s reasons in response to this ground of appeal, it seems to me on revisiting this case that this paragraph (which deals with what to me at the permission stage seemed an unhelpful digression as to the appellant’s “perception”) does provide some further insight into the Tribunal’s reasoning. The Tribunal states that it has used its expertise to find “that if the appellant had not consented to the treatment and he remained fit for work then no action would have been taken”. As I read this now, it seems to me that this sentence is the Tribunal explaining that it has found the appellant was not “ordered” because, even if he was given an order in so many words, it would not have been treated by the RAF as a failure to follow orders. If that is what is meant by this paragraph, however, then there would in my judgment be a further error here as follows.

The issue for the Tribunal was whether the treatment that caused the injury was predominantly caused by service. The guidance in JM at [98]-[103] about when something is caused by service and when it is not does not turn simply on the question of whether the thing that has caused the injury was the result of someone following orders or not; that is merely one possible indicator of whether something is caused by service or not: see the Secretary of State’s own policy guidance cited at [103] of JM. Nor, it follows, does it turn on the question of an order that has been made would have been enforced by the RAF as such. The exercise required of the Tribunal is much more nuanced than that. Not every communication from an officer as part of service life will be an order, but following or responding to that communication may still be “compliance with the general … obligations of service” or “reasonably incidental to these obligations”, to use the language of Tucker J in the Horsfall case cited at [98(i)] of JM. The complexities of the analysis required in order to decide whether something is ‘caused by service’ or not become even more difficult where what is in issue, or potentially in issue, is bullying, or bullying-type, conduct, as the three-judge panel in JM explore at [103]-[115]. That guidance may be relevant here, depending on what the facts are as to the appellant’s interaction with his officer regarding having this treatment. In making that observation, I emphasise that I am not suggesting that the appellant is alleging that he was ‘bullied’ into having the treatment, merely that the guidance given in JM about when bullying behaviour may be regarded as being part of service and when it is not will also be relevant to deciding whether, if the officer did in fact order the appellant to undergo the treatment, the appellant’s following of that order is to be regarded as part of his service life or not.

In short, the Tribunal’s conclusion that the appellant was not given an enforceable order to undertake the treatment would not by itself answer the issue that the Tribunal had to determine. The issue of whether the treatment the appellant received was “caused by service” required the Tribunal, first, to make careful findings of fact about what happened between the appellant and his officer in advance of that appointment, providing adequate reasons for any part of the appellant’s account it rejected (in particular his evidence that he was “ordered”). Then the Tribunal had to consider, taking full account of the guidance in JM,whether or not the appellant’s consent to undergo the treatment in the light of whatever happened between him and his officer was “caused by service”.