UT/2023/000122 - [2025] UKUT 00341 (TCC)

We have found that the FTT erred in law in placing no weight on the documents as evidencing a diagnosis by Dr Shotter of any health disorders. We are conscious that the FTT concluded that Dr Shotter’s oral evidence could not be corroborated by documentary evidence in circumstances where such documentary evidence could have been provided. It also concluded that the documentary evidence that was available was sparse and unrevealing.

However, in our view the FTT’s error might have made a difference to its decision that none of the Appellant’s supplies amounted to medical care. As such we exercise our discretion to set aside the Decision in accordance with the approach set out by Henderson LJ in Degorce v HM Revenue & Customs [2017] EWCA Civ 1427 at [95].

We are not in a position to remake the decision, and will therefore remit the appeal to the FTT. There is no reason the appeal should not be remitted to the same tribunal panel in so far as that is possible.

The FTT was referred to a sample of initial consultations and quoted the contents of two by way of example. It held that these did not amount to a diagnosis in the sense described by the authorities. What the FTT did not do was to consider any individual supplies in context. It is not clear to us that it was invited to do so by the parties, but in our view that is the approach the FTT ought to adopt when reconsidering its decision. The FTT should also adopt the multi-factorial approach we have described above.