[2025] UKUT 215 (AAC)

Before turning to discuss in more detail the particulars of the grounds of appeal, I start by setting out my overall view and making some more general observations on the appeal.

Overall, I consider that when the PATS’s decision is read as whole, as it must be, it provides the parties to the appeal and the appellant in particular with an adequate explanation for why the appeal did not succeed; and reading the reasons as a whole includes the PATS’s acceptance of the evidence of Dr Madhok. The PATS’s explanation for why the appeal did not succeed, in short, was either that the appellant did not have the conditions for which he claimed (including GWI), or, for those conditions which the PATS found he did have, they were not related to service. The appellant may disagree with these conclusions, but, in the absence of the PATS having material erred in law in coming to those conclusions, it is not for the Upper Tribunal to set aside the PATS’s decision on the basis that GWI should have been treated as an organic disease or that the PATS was wrong to place weight on the evidence of Dr Madhok. The evaluation of the evidence and the weight to be attached to the evidence was a matter for the expert membership of the PATS.

The first general observation concerns what was said by the appellant to be the PATS’s wrong reference to “Article 41 of the SPO”, at paragraph 62 of its decision. It was argued that the PATS should instead have referred to article 3 of the 1964 Scheme. However, even assuming this was a mistake by the PATS, it was not argued before me that this error had had any material effect on the PATS’s application of the law to the evidence and arguments before it.

Whether under article 41 of the SPO (i.e., the Naval, Military and Air Forces ETC (Disablement and Death) Service Pensions Order 2006) or under the 1964 Scheme, it was common ground before the PATS and accepted before me that it was for the appellant to establish, on the balance of probabilities, that he had the disablement for which he had claimed: see Royston v The Minister of Pensions 1948 1 All ER 778. That, as the PATS said at paragraph 61 of its decision, was the first question it had to address and answer. The second question, which the PATS asked itself at paragraph 69 of its decision, is whether the conditions it accepted the appellant had were related to service (i.e., causation). It was not disputed before me that the PATS correctly directed itself by way of reference to, amongst other cases, Abdale and others v SSD(WP) [2014] UKUT 477 (AAC); [2015] AACR 20, when addressing that second question. Moreover, where a condition is of unknown aetiology, Coe v Minister of Pensions [1967] 1 QB 238 establishes that if there is evidence that, although the aetiology is unknown, the disease is one which arises and progresses independently of service factors and the fact-finding tribunal is convinced thereby and accordingly refuses a pension, the court should not interfere. The PATS also correctly directed itself as to the effect of Coe, and there is no challenge to it decision in this respect.

The second general observation is, accordingly, that the appeal does not challenge the law which the PATS directed itself to apply. Rather, the appeal challenges the PATS’s application of that law to the evidence it had before it. The key challenge advanced on the appeal is to the PATS’s consideration of the various medical papers it had before it about whether GWI was a qualifying injury (i.e., an organic disease) under the 1964 scheme and whether the appellant was suffering from GWI. That evidential consideration arose under the first question, and it did not proceed to the second question because of the answer the PATS gave to the first question in relation to GWI (and, relatedly, whether the appellant had GWI).

The third general observation concerns the change in focus of the appellant’s case as it proceeded before the PATS and the Upper Tribunal . The first argument before me, as I have indicated above, covered the first, second and sixth grounds of appeal. In making that argument the appellant through Mr Haddow accepted that there was no error of law in the PATS approach of addressing GWI first before it addressed the symptoms of, for example, depression and memory loss. However, in then arguing about whether the PATS had erred in law in its view (including as set out in paragraph 39 of its decision) that whether GWI exists and whether the appellant had GWI was academic, the appellant accepted before me that if GWI was an injury/organic disease then it was not necessary to consider the individual symptoms (e.g., depression and memory loss). Given what I have said above about it being the PATS, and not the Upper Tribunal, having the fact -finding role, this must mean ‘acceptance’ and ‘consideration’ by the PATS. When I then asked Mr Haddow whether this therefore meant it would not have been necessary for the PATS to consider the individual symptoms at all, I understood him to accept this. However, he then qualified this by submitting that the PATS had to consider the individual symptoms as part of whether the appellant had GWI or anything that could be called GWI.

As Ms Dewart for the Secretary of State (rightly) pointed out to me, this is a different argument to the one the appellant put before the PATS. The appellant’s position before me appeared to be that the only issues the PATS had to decide was whether GWI is an organic disease and whether the appellant had it. At paragraphs 16 and 17 of the appellant’s Answer to the Statement of Case to the PATS, his arguments, relevantly, were as follows:

“16……the issues for appeal are:

16.1.

Was the Respondent right to decide that the Appellant does not suffer from Gulf War Syndrome, in so far as this is a medical syndrome which can be a qualifying injury under the 1964 Scheme? If the Respondent is wrong about this, does the Appellant suffer from such an illness and is there a causal link to the Respondent’s service?

16.2.

Was the Respondent right to decide that causation was not established in the case of each of the four conditions suffered by the Appellant?....

17.

The Appellant contends that:

17.1.

The scientific consensus is now that Gulf War illness (“GWI”) is now recognised as a single diagnostic entity whose association with various service factors has been subject to significant and meaningful amounts of medical and scientific research. The tribunal should find that the Appellant has GWI and that he has raised a reasonable doubt that this is attributable to his service in the 1991 Gulf War.

17.2.

That the tribunal should find that, in the case of two of the conditions recognised by the Respondent, the Appellant has raised a reasonable doubt that these are attributable to his service in the 1991 Gulf War…”

The arguments the appellant made before the PATS therefore separated out the individual symptoms from GWI, rather than subsuming them within GWI. It is not surprising in these circumstances that the PATS structured its decision in the way that it did. Moreover, its decision at paragraph 39 of the decision has to be read in the light of the case or issues the appellant had put before it to decide.

Staying with paragraph 39 of the PATS’s decision, I cannot identify any material misdirection by the PATS in the counterfactual which it addressed in that paragraph. In circumstances where the PATS was to find (at paragraph 64 of its decision) that the appellant did not have GWI, on the appellant’s own case to the PATS the tribunal had to go and decide whether the appellant had the four individual symptoms which he claimed and, if he did, whether they were related to service.

With these important observations, I turn to address the grounds of appeal, though what I have said in the immediately preceding paragraph may in large part answer the second ground of appeal.