[2025] UKUT 033 (AAC)

In granting permission on this ground, I directed that in order for the appellant to establish on this appeal that the Tribunal reached a perverse conclusion that there was “no evidence that any stress which contributed to the facial pain is service related”, he would have to identify precisely which medical evidence he was relying on in this respect.

In response to this direction, the appellant provided a list of 14 bundle references. Some of those deal with the evidence that the Tribunal accepted did exist as to the link between stress and the myofascial pain. However, some of the references do in my judgment clearly constitute evidence that the stress was in turn related to work or, at least, evidence that needed to be addressed by the Tribunal in its reasons if it was to provide adequate reasons for why it concluded that there was “no evidence” of work-related stress. Those references in the appellant’s medical notes are as follows:-

In responding to the appeal, the Secretary of State has dealt with each of these entries and sought to explain why the Tribunal was right to conclude that these did not provide evidence of a causal link between work and stress.

Again, I am afraid the Secretary of State’s response is no answer to an appeal on a point of law. The Tribunal’s conclusion that there was “no evidence” of a link between work and stress was perverse, even applying the high threshold required before such a conclusion is reached: see R (Iran) v SSHD ibid at [11]. There was in fact ample evidence of a link; it was not open to a Tribunal, properly directing itself on the evidence, to find that there was no such evidence. Of course, the Tribunal may nonetheless be able to conclude that the causal link is not made out for some or all of the reasons identified by the Secretary of State. However, in an appeal on a point of law, it does not assist for the Secretary of State to provide the evidence and reasons missing from the Tribunal’s analysis. The Tribunal’s role was to consider that evidence and explain what it made of it; it has not done that.

It follows that this ground of appeal succeeds. However, given some of the arguments raised by the Secretary of State regarding the evidence of work-related stress, and the appellant’s response to those arguments, I need to say a little more about the task that will face the Tribunal when this case is remitted.

In the Secretary of State’s submissions, it is argued (among other things) that the medical records “do not give any information as to the cause or nature of the stress”, that “service proactively removed [the appellant] from any potential workplace stressors by preventatively signing him off” and that a reference “lack of ‘perceived’ support isn’t a specific indication of any service exacerbation, and would potentially suggest [the appellant] has a different view point relating to required support”.

The difficulty with these submissions is that they suggest that fault and breach of duty are relevant to the question of whether the injury was caused by service. However, as Judge Rowland neatly summarised the law in the light of JM in SN v SSD (AFCS) [2018] UKUT 263 (AAC), “this is a no-fault scheme … a mental disorder caused by stresses at work in the Armed Forces may be caused by service even if no-one behaved improperly towards the claimant”.

The Secretary of State’s submissions also suggest that weaknesses, or the appellant’s subjective perception of matters at work, may be the cause of the stress rather than work. That is an issue that the Tribunal will need to consider on remission. In doing so, the Tribunal will need again to take account of the guidance in JM that having a “thin skull”, and thus being more susceptible to work-place stressors, does not remove the causal connection between the work and the stress. In JM the Upper Tribunal held as follows:-

132

In this context we do not see any sign that the intention behind the AFCS is to deprive those with constitutional weaknesses from the protection usually regarded as appropriate in other compensation schemes, that is to say the “thin skull” approach.

133.

We acknowledge that, in exercising the judgment between process causes that have been categorised into service and non-service causes of the injury, a literal approach to the language of the test in the 2005 and 2011 Orders could, in an equivalent case to Marshall, found the view expressed by Denning J with the result that the claimant would not get an award because the predominant cause of the injury was the constitutional weakness and the cough was a lesser cause.

134.

But in our view the width of the language permits a more sophisticated approach to deciding whether, as the Secretary of State put it, conceptually the service cause contributes more than one half of the causative stimulus for the injury claimed, and thus whether service is the predominant cause in a case where (after the categorisation process) the only competing causes are service and constitutional or other pre-existing weaknesses. In such a case the decision-maker generally should firstly consider whether without the “service cause”, the injury would:

(a)

have occurred at all, or

(b)

have been less than half as serious.

135.

If the answer to the first question is that the injury would not have occurred at all in the absence of the service cause, we consider that this can and generally should found a conclusion that the service cause is the predominant cause of the relevant injury.

This Tribunal will need to apply this guidance when considering the appellant’s case at the remitted hearing.