[2025] UKUT 037 (AAC)

Realistically the key descriptors potentially at issue in this appeal before the Pensions Appeal Tribunal were Item 2 and Item 3 from Table 3. The distinguishing feature between those two descriptors is the issue of the permanence (or otherwise) of the mental disorder. The requirement for a “permanent mental disorder” thus acts as a gateway for entitlement to Item 2 (and above) in Table 3. If permanence cannot be established, the award must be at Item 3 (or lower, depending on the satisfaction of further criteria). It follows that the central question on this further appeal is whether there was any error of law in the Pensions Appeal Tribunal’s decision which concluded that the Appellant’s mental disorder was not “permanent”. A disagreement over the facts is insufficient. It also follows that the fate of Ground 1 will be decisive for this further appeal – the question of the permanence of the mental disorder is the crux of the case. If Ground 1 cannot be made out, the other grounds of appeal necessarily fall away as they will not be material to the outcome of the appeal.

In practice, as Ms Dewart submitted, there may be two ways of approaching the question as to whether a case falls on the Item 2 or Item 3 side of the line, which may be conveniently referred to as a ‘bottom up’ approach and a ‘top down’ approach. The ‘bottom up’ method is to ask first whether there is a mental disorder causing a functional limitation or restriction and then secondly to assess whether that mental disorder is permanent. The ‘top down’ approach is to determine first whether there is a permanent mental disorder and, if not, to decide whether the mental disorder “has continued, or is expected to continue for 5 years”. Ms Dewart suggested that the first method, as adopted by the Tribunal in this case, was arguably the more appropriate approach. I am not sure that will necessarily be right in every case, as much must depend on the factual matrix. It may be that on the facts of any given case it is clear from the outset that the mental disorder cannot be characterised as permanent, in which event it may be simplest to adopt the top down approach. However, I do agree with Ms Dewart that nothing turns on the order of enquiry that is adopted. What matters is that the relevant decision-maker (be that the Veterans UK officer or the tribunal) ask themselves whatever are the relevant questions which then go to justify their selection of the appropriate descriptor as per Article 16(1).

So what then was the approach of the Tribunal in this case? As already noted, the Tribunal recorded a comprehensive narrative account of the Appellant’s evidence (at para 5). The Tribunal went on to make findings of fact in relation to the permanency of his medical condition and the treatment he had undergone (paras 9-20). These were helpfully summarised by Ms Dewart in her skeleton argument as follows:

At paragraph 22 the Tribunal then set out its reasoning on the appropriate descriptor under Table 3 for the Appellant’s mental disorder. As Ms Dewart submitted, paragraph 22 of the Tribunal’s reasons did five things. In short, it decided that the Appellant’s functional limitation was due to his PTSD, it decided that his condition had lasted for more than 5 years and fluctuated, it considered the clinical management of his condition, it considered the treatment options he had had, and it identified the key evidence in relation to both the clinical management and treatment options. The Tribunal provided further reasoning on its decision that the Appellant’s mental disorder was not permanent at paragraph 24. It relied upon the evidence that there had been an initial course of EMDR with a reported benefit; that a second planned trauma focussed treatment in 2020 had not taken place and in the view of the therapist at the time was necessary to address symptoms of PTSD and functioning, and that his GP had referred him to an NHS consultant psychiatrist for an assessment for further treatment but this had not taken place. The Tribunal concluded that “for these reasons the tribunal did not find that appropriate clinical management of adequate duration had taken place thus far or that no further improvement is expected”.

As such, I am satisfied the Tribunal applied the correct legal test for assessing whether the Appellant’s mental disorder was permanent. The findings that it made – both in terms of primary fact and in terms of evaluative judgement – were ones that were reasonably open to the Tribunal on the evidence before it. At their heart the Appellant’s arguments in support of Ground 1 boiled down to a disagreement with the findings of fact made by the Tribunal and the conclusions it drew from the evidence. As Ms Dewart observed, it is possible, given the multi-factorial nature of the exercise, that a different tribunal might (and I put it no higher than that) have reached a different conclusion on the central question as to the permanence of the Appellant’s mental disorder. However, that is not the test that is to be applied in an error of law jurisdiction. As Lord Hoffmann observed in Moyna v Secretary of State for Work and Pensions [2003] UKHL 44; [2003] 1 WLR 1929 at [20], “In any case in which a tribunal has to apply a standard with a greater or lesser degree of imprecision and to take a number of factors into account, there are bound to be cases in which it will be impossible for a reviewing court to say that the tribunal must have erred in law in deciding the case either way: see George Mitchell (Chesterhall) Ltd v Finney Lock Seeds Ltd [1983] 2 AC 803, 815-816.” Thus, in order to succeed on Ground 1, the Appellant would need to show that no reasonable tribunal, properly directing itself as to the relevant law, could have reached the same conclusion on the evidence before it. However, the Appellant does not come close to surmounting that demanding hurdle.

That being so, Ground 1 fails and so the appeal must be refused. In those circumstances the remaining three grounds of appeal fall away and need not be addressed in any detail. Grounds 2 and 3 are both concerned with the Tribunal’s assessment of the degree of functional limitation or restriction. The Tribunal concluded this was not ‘severe’ or ‘moderate’ for the purposes of Items 1 and 2 of Table 3, giving brief reasons at paragraph 25. However, given its conclusion on the issue of permanence, there was in practice no need for the Tribunal to have considered this issue. Nor does the reasons challenge in Ground 4 assist. The test for adequacy of reasons is well-established and is the same on both sides of the border. Thus, in Scotland, as Lord President Emslie explained in Wordie Property Co Limited v Secretary of State for Scotland 1983 SLT 345 (at 348), "The decision must, in short, leave the informed reader and the court in no real and substantial doubt as to what the reasons for it were and what were the material considerations which were taken into account in reaching it." There is ample authority to support the proposition that reasons have to be adequate, not perfect or optimal, and the Tribunal’s reasons in this case meet that standard.