CB v Secretary of State for Defence

The decision of the First-tier Tribunal, taken on 19 May 2023 under case reference ENT/00007/2023, involved errors on a point of law. Under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007, the Upper Tribunal sets aside the First-tier Tribunal’s decision.

Under section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007, the Upper Tribunal remits this case to the First-tier Tribunal, and directs as follows:

In these reasons:

CB made a claim under the 2006 Order. Paragraph 1 of the First-tier Tribunal’s reasons for its decision records that CB’s period of service in the RAF ran from August 1980 until December 1989. Elsewhere, the reasons refer to CB’s service as having ended in 1986. Whatever is the correct date, it is clear that CB’s claim under the 2006 Order was made more than 7 years after termination of his service.

As described in the First-tier Tribunal’s reasons, CB’s claim relied on diagnoses of Bilateral Bronchiectasis and Idiopathic Pulmonary Fibrosis, and associated disablement. He argued that these diseases were due to his service which involved exposure to asbestos. The Secretary of State refused the claim and CB appealed to the First-tier Tribunal.

In accordance with CB’s request, the First-tier Tribunal decided the appeal on the papers without holding a hearing.

In dismissing CB’s appeal, the First-tier Tribunal made certain findings of fact, including the following:

“there is no record of his exposure to asbestos while in service and he made no claim to breathing difficulties or exposure to asbestos on his release medical” (paragraph 8 of the Tribunal’s reasons);

“the Appellant left service in 1986 and made no claim about damaged asbestos until he lodged his claim in 2021 some thirty-five years later, by which time memory becomes unreliable and prone to mistakes” (paragraph 8);

“the credibility of the Appellant’s claim to be exposed to broken and flaking asbestos panels is damaged by two separate hospital letters, in which he was asked about asbestos exposure but did not mention working in a building with damaged and cracked asbestos. The hospital letter dated 8^th August 2018, records that the appellant may have had some exposure to asbestos in service but never really worked with asbestos, and as such there is no other exposure history. The hospital letter dated 23^rd January 2019 records that the appellant did not work directly with asbestos but occasionally worked in buildings where asbestos was present. The appellant had two separate opportunities to state that he was exposed to broken or cracked asbestos but failed to do so” (paragraph 8);

“the first claim of this nature was some thirty-five years after the event and is not supported by any documentary or third party evidence” (paragraph 8);

“the appellant relies on generalised reports that asbestos was used in MOD buildings but has produced no supporting evidence that the building at 9 SU Boddington had cracked or broken asbestos” (paragraph 8);

“the reliability of his single evidence after thirty years later is severely compromised. The Tribunal is not satisfied that the appellant was exposed to broken, cracked and flaky asbestos as claimed” (paragraph 8);

“the appellant has submitted a great deal of evidence about asbestosis but has not submitted a single medical report that he has asbestosis or an asbestos related condition…even if he was [exposed to asbestos], the appellant has submitted no reliable evidence that he has an asbestos related condition” (paragraph 9);

the medical letter of 23 January 2019 “makes no connection with asbestos exposure” and that of 5 February 2019 has “no mention of a connection to asbestos exposure” (paragraph 9);

“idiopathic pulmonary fibrosis is a condition with no known cause” and “bronchiectasis often has no known cause and could be congenital but could be the result of infection or inflammation by bacteria or virus”.

In summary, the First-tier Tribunal dismissed CB’s appeal because it was not satisfied that he had been exposed to asbestos in service but, if he was, he had provided no evidence that he had an asbestos related condition / disease.

The Upper Tribunal granted CB permission to appeal against the First-tier Tribunal’s decision on the following grounds.

Arguably, the First-tier Tribunal erred in law because the reasons for its decision were inadequate in the following respects:

the Tribunal failed to explain why CB’s memory in particular had become unreliable and prone to mistakes, thirty-five years after the relevant dates. In the absence of a scientific rule that human memory degrades at a fixed rate, so that it could have been assumed with confidence that CB’s memory was unreliable and prone to mistakes, why did the Tribunal find that CB’s memory was unreliable and prone to mistakes?

the Tribunal relied on a finding that CB did not work directly with asbestos but did not explain why this was relevant. Did it consider that only ‘direct work’ would be likely to cause asbestos related diseases and, if so, what was the basis for that conclusion?

on the Tribunal’s description of the evidence, CB informed clinicians that he may have been exposed to asbestos. This was said to have damaged his credibility because he failed to mention that he worked in a building with damaged or cracked asbestos. It is not immediately obvious why these different formulations should have made a difference to CB’s credibility. The statement ‘I may have been exposed to asbestos’ is capable of being consistent with the statement ‘I worked in a building with damaged or cracked asbestos’ so that, arguably, the Tribunal was required to explain why making the former statement to clinicians, but not the latter, damaged CB’s credibility;

the Tribunal could not have known exactly what happened during the medical consultations that preceded the two clinical letters referred to in its reasons. In those circumstances, why did it feel able to find with confidence that CB failed to take two opportunities presented to him to disclose that he worked in a building with broken or cracked asbestos? Arguably, the reasons should have explained why;

arguably, if the Tribunal was going to place adverse reliance on a finding that the Appellant waited for 35 years to make a claim it needed to explain, in the light of recognised latency period for asbestos related diseases, why this was relevant. Did the Tribunal consider that, had CB been exposed to asbestos, a linked condition would have been expected to manifest earlier than he claimed? If so, arguably the Tribunal was required to give some explanation as to why it held that opinion.

Arguably, the First-tier Tribunal erred in law because it conducted proceedings unfairly:

there was no hearing, yet the Tribunal felt able to make adverse findings about CB’s credibility and the reliability of his memory. Generally, tribunals should be alive to the potential for unfairness where an adverse credibility finding is made without the Appellant’s evidence having been tested through direct questioning. There is a risk of unfairness in doing so which is arguably enhanced where the finding rests, as here, on an analysis of what was absent from medical letters, rather than positive written statement/s made by an Appellant. Arguably, the Tribunal should have considered whether fairness required it to adjourn in order to provide CB with a further opportunity to attend a hearing at which the Tribunal’s credibility concerns could be put to him. Similarly, the Tribunal felt able to make a finding that CB’s memory was likely to have degraded over time without ever having spoken to him. Arguably, the Tribunal should have considered whether fairness required it to provide CB with a further opportunity to attend a hearing at which the reliability of his memory could be tested by live questioning;

the Tribunal appears to have relied on CB’s failure to provide specific evidence, apart from his own written statement, that asbestos was present at the RAF facility at which he was based. But the Tribunal’s reasons, at paragraph 4, recorded that no Ministry of Defence records had been retained. Arguably, the Tribunal acted unfairly by placing adverse reliance on CB’s failure to provide evidence that it would arguably have been impossible for him to have obtained.

Arguably the First-tier Tribunal erred in law by overlooking and/or failing to explain why it rejected aspects of CB’s case or his evidence. CB provided evidence that his diagnosed conditions were capable of being caused by exposure to asbestos, but the Tribunal’s reasons did not state whether it accepted this evidence.

Article 41 of the 2006 Order provides adjudication rules for claims made more than 7 years after termination of service. Insofar as relevant, Article 41 provides as follows:

“(1)

…where, after the expiration of the period of 7 years beginning with the termination of the service of a member of the armed forces, a claim is made in respect of a disablement…such disablement…shall be accepted as due to service for the purpose of this Order provided it is certified that—

(a)

the disablement is due to an injury which—

(i)

is attributable to service before 6th April 2005, or

(ii)

existed before or arose during such service and has been and remains aggravated thereby…

…(5) Where, upon reliable evidence, a reasonable doubt exists whether the conditions set out in paragraph (1) are fulfilled, the benefit of that reasonable doubt shall be given to the claimant.

(6)

Where there is no note in contemporary official records of a material fact on which the claim is based, other reliable corroborative evidence of that fact may be accepted.”

Article 41(1)’s requirement for certification that disablement is due to an injury which is attributable to service may be satisfied in a variety of ways, including in accordance with a decision on the matter requiring certification given by the First-tier Tribunal (see article 43(a)).

Under the 2006 Order, injury “includes wound or disease” (Part II of Schedule 6 to the Order).