[2025] UKUT 215 (AAC)

This is the heading to the third ground of appeal. Again, read alone it asks a question of evidence or fact and is not about whether the PATS erred in law. Furthermore, I struggle to see why this is not simply the reverse of the same coin about whether GWI is an organic disease, to which the PATS answered ‘No’. If there is no physical injury or organic disease of GWI for the purposes of the 1964 Scheme, I do not see (error of law arguments apart) on what basis the appellant could have GWI or separately meet the criteria for GWI. This perspective accords with the questions the PATS had directed itself to consider (see paragraph 8 above). There was and is not challenge to those directions. However, point (2) in those directions – ‘does the appellant have GWI’ – only arose if, under point (1) in the directions - GWI was a physical injury/organic disease under the 1964 Scheme. Having answered that first question with a ‘No’, on the basis of the directions the question at (2) in those directions simply did not arise. None of the appellant’s arguments persuaded me that addressing (and answering) the question whether the appellant had GWI could have any useful content or application if, as the PATS found, GWI was not a qualifying injury under the 1964 Scheme.

The appellant argued under the third ground of appeal that the PATS had been wrong to place such weight on the distinction case or classification criteria and diagnostic criteria and that the PATS had misdirected itself that there needed to be diagnostic criteria. For the appellant, case criteria were the best practical definition of GWI. This is no more than a rerun of the arguments I have addressed under the first ground of appeal and, moreover, is no more than evidential reargument. It was for the PATS as the expert fact-finding body (and not the Upper Tribunal) to decide what was needed to decide if something was a physical injury/organic disease, and it was entitled on the basis of Dr Madhok’s evidence to decide that diagnostic criteria were needed (but were not in place) to identify a symptom or collection of symptoms as GWI.

Another focus of the appellant’s argument under the third ground of appeal was on paragraph 37 of the PATS’s decision and its statement that “[i]n the absence of diagnostic criteria, it is difficult for a tribunal, in the absence of any medical diagnosis, to make the finding the appellant has GWI”. The appellant argued that this was a circular argument as without diagnostic criteria there can be no medical diagnosis. This is not, with respect, a misdirection of the law. As the Secretary of State argued, it is no more than a statement of the obvious.

The final argument the appellant made under his third ground of appeal is an argument that the PATS’s reliance on a need for diagnostic criteria, and not case criteria, for GWI was, so the appellant argued, fatally undermined by the evidence before it relating to CFS. As I understood the argument, it is that CFS is recognised as an organic disease but identifying whether someone has CFS depended on applying case, and not diagnostic, criteria. Again, this has all the flavour of evidential reargument, and one which may well be based on a misunderstanding of the role the “synopsis of causation” plays in the Secretary of State’s determination of war pension claims, including those with CFS.

Evidential reargument concerns apart, the PATS had Dr Madhok’s evidence before it, he was an expert in CFS, and his evidence was that CFS is a “psychosocial disorder” (paragraph 26 of the PATS’s decision) and that there is a diagnosis for it which did not apply in the appellant’s case (paragraph 67). On that evidence the PATS was entitled to proceed on the basis that there was not an analogy between GWI and CFS.

The argument of the appellant here depends on reading paragraph 38 of the PATS’s decision in isolation and as the sole determinant for its finding that GWI is not an organic disease (and that the appellant did not have GWI). That approach is not correct. It ignores paragraph 37 of the decision and the preceding paragraphs and most particularly Dr Madhok’s evidence in 24 that there are no accepted diagnostic criteria for GWI and that classification (or case) criteria cannot be used as diagnostic criteria. Nothing in Dr Madhok’s evidence, moreover, was to the effect that case criteria are used for identifying if someone has CFS.