Upper Tribunal Administrative Appeals Chamber

[2025] UKUT 365 (AAC)

Fecha: 01-Oct-2025

Identification of the injury

(A)

Identification of the injury

88.

First, a difficulty with the decision is that the Tribunal approached the question of causation as if the appellant has two separate injuries: (a) Alzheimer’s; and (b) CTE. The Tribunal then looked at the causes for those injuries separately. However, the claimant’s personal injury for the purposes of the SSCBA 1992 is not one diagnosis or the other but the functional effect of the cognitive impairment. That must be borne in mind at all times, but consideration of the diagnoses themselves is also important and it seems to me that there is a lack of clarity in the Tribunal’s approach to this issue, which has contributed to the inadequacy of its reasoning in this case.

89.

In cases such as this where there are two possible diagnoses with relevantly different causes, the Tribunal needs first to decide whether, on the balance of probabilities, the evidence shows that the appellant is suffering from one condition or another or (if that is medically possible) both. This requires the Tribunal to consider the medical evidence, and apply its own expertise.

90.

The Tribunal’s reasoning in this case suggests that its understanding was that if the appellant was ‘only’ suffering from Alzheimer’s, that was not caused by any accident in his footballing career. I do not know whether that approach is medically correct. It may be, for example, that Alzheimer’s can also be caused by head trauma. If so, the Tribunal needed to acknowledge that and address the question of causation on the basis that both Alzheimer’s and CTE could be caused by head trauma.

91.

If, however, Alzheimer’s is by definition not caused by head trauma, as the Tribunal apparently assumed in this case, then that has certain consequences for the task of the Tribunal as I shall explain. If that is the position, then the Tribunal needs first to decide whether the appellant has established on the balance of probabilities that he is suffering from either, both or neither condition. It seems to me that there are at least four possible outcomes of that analysis in the context of an IIDB claim where the conditions of entitlement to the benefit must be established on the balance of probabilities:

(1)

If the Tribunal concludes that, on the balance of probabilities, the appellant is suffering ‘only’ from Alzheimer’s and not also CTE, then the claim would fail on that basis alone. There would be no need for the Tribunal to go on and consider the likely causes of Alzheimer’s (save to the extent that it may be necessary for the Tribunal to consider the likely causes of Alzheimer’s in order to assess whether the appellant is on the balance of probabilities suffering ‘only’ from Alzheimer’s or not). This would be so also if the Tribunal considered there was a chance (less than the 50% necessary to establish this on the balance of probabilities) that the appellant does have CTE.

(2)

In contrast, if the Tribunal concludes that, on the balance of probabilities, he is suffering from CTE, but not Alzheimer’s, then the Tribunal would need to go on to consider whether, on the balance of probabilities, any accidents occurring during the claimant’s footballing career were an effective cause of his CTE. In that scenario, the causes of Alzheimer’s would not be relevant. Again, this would be so also if the Tribunal considered there was a chance (less than 50% necessary to establish this on the balance of probabilities) that the appellant does have Alzheimer’s. If the Tribunal is not satisfied on the balance of probabilities that the appellant does have Alzheimer’s, then it cannot conclude on that standard that the causes of Alzheimer’s are a material contribution to his condition.

(3)

If, however, the Tribunal concludes that the appellant is on balance of probabilities suffering from both Alzheimer’s and CTE (assuming that is medically possible), then it needs to consider the possible effective causes of both conditions in the claimant. The Tribunal would then need to consider the likely relative contribution of Alzheimer’s and CTE to his cognitive impairment. If CTE was only a small contributing factor, then in turn the Tribunal would when applying regulation 11 of the 1982 Regulations have to regard the contribution of different types of head impact to his overall loss of faculty to be relatively small.

(4)

Finally, if the Tribunal concludes that the balance of probabilities standard is not met in relation to either the diagnosis of Alzheimer’s or CTE, that is not necessarily an end of the matter because, as noted, what matters for the purposes of IIDB is that there is an injury, not that there has been a particular diagnosis. If the Tribunal is not satisfied that either diagnosis is proven, then it would still need to proceed to consider the possible effective causes of the appellant’s cognitive impairment/dementia. In that scenario, however, in which the appellant had failed to establish on the balance of probabilities that he is suffering from CTE, it is hard to see how a Tribunal could conclude on the balance of probabilities that head impacts were a contributory cause of his condition since, if they are, it ought to have concluded that on the balance of probabilities he does have CTE.

92.

In the present case, the Tribunal did not take this sort of logical approach to its task. At [19], for example, it refers to how it is not possible to distinguish patients who have CTE from those who have Alzheimer’s, suggesting it regarded this as a case within either (1) or (4) above, i.e. as a case where the claimant had not established on the balance of probabilities that he is suffering from CTE. However, it then goes on in its decision to treat this as a case falling within (3) above, i.e. as if the appellant has established on the balance of probabilities that he is suffering from both Alzheimer’s and CTE.

93.

Difficult as the fact-finding may be in a case such this, the Tribunal does need to make findings of fact on the balance of probabilities as to what the injury is as well as to its causes. The Tribunal’s failure to do this in this case has in my judgment contributed to the inadequacy in its reasoning.