JH v Secretary of State for Defence

Functional limitation or restriction is severe where the claimant is unable to undertake work appropriate to experience, qualifications and skills at the time of onset of the illness and over time able to work only in less demanding.jobs.

Functional limitation or restriction is moderate where the claimant is unable to undertake work appropriate to experience, qualifications and skills at the time of onset of the illness but able to work regularly in a less demanding job.

Accordingly, this case has involved consideration of three different descriptors. The Secretary of State’s decision was that the appropriate descriptor was “Mental disorder, which has caused, or is expected to cause functional limitation or restriction at 2 years, from which the claimant has made, or is expected to make, a substantial recovery within 5 years” (Item 4, Level 12). The First-tier Tribunal, however, decided that the proper descriptor was “Mental disorder, causing functional limitation or restriction, which has continued, or is expected to continue for 5 years” (Item 3, Level 10). The Appellant, on the other hand, contended that “Permanent mental disorder, causing severe functional limitation or restriction” was the applicable descriptor (Item 1, Level 6).

By way of comparison, these descriptors translate into amounts of £10,300 (Level 12), £27,810 (Level 10) and £144,200 (Level 6) respectively (see Table 10 ‘Tariff amounts’ of Schedule 3 to the 2011 Order). The double step change from Item 3 (Level 10) to Item 1 (Level 6) is therefore marked.

There is one other provision of note in the 2011 Order. Article 5(7)(a) provides as follows:

The consultant psychiatrist’s 2017 report (by Dr Cahill), which made the original diagnosis of the Appellant’s PTSD, included the following passage (now suitably anonymised and with bold emphasis as in the original) under the heading ‘Treatment’:

As will become evident, much of the debate in the present appellate proceedings has revolved around the meaning of the expression “formal psychological treatment” (as it appears in the first paragraph of this passage in Dr Cahill’s report). This passage is especially relevant to the first three of the four primary grounds of appeal.

In the next passage of his report, Dr Cahill addressed the prognosis for Mr H as it appeared in 2017:

This passage on prognosis is particularly relevant to the fourth and final ground of appeal.

The Appellant made a claim under the AFCS in respect of his PTSD in August 2017. On 5 October 2017 the Veterans UK decision-maker placed the Appellant’s PTSD as an interim award at Table 3, Item 4, Level 12. On 4 April 2019 that award was finalised on the same basis, the decision-maker accepting medical advice to the effect that Mr H did “not appear to be engaging with specialist services and is not receiving any specialist mental health input”. That decision was maintained following reconsideration on 6 January 2020. On 13 February 2020 the Appellant lodged an appeal.

The First-tier Tribunal (from now on, simply ‘the Tribunal’) held a remote CVP hearing of the appeal on 14 March 2023. It issued its decision notice a few days later on 20 March 2023, giving the following summary reasons:

This decision notice was followed by the Tribunal’s full written reasons (signed off on 23 April 2023, issued on 25 April 2023).

Having set out its findings about the process leading up to the Appellant’s diagnosis by Dr Cahill, the Tribunal made the following findings of fact (here suitably anonymised):

In the final section of its decision, headed ‘Conclusions’, the Tribunal then reasoned as follows:

On 21 June 2023 Judge Monk, the Chamber President, refused the Appellant’s application for permission to appeal to the Upper Tribunal. She gave the following reasons:

The application for permission to appeal was then renewed before the Upper Tribunal.

On 23 August 2023 I gave the Appellant permission to appeal, making the following observations:

Both counsel confirmed in the course of the Upper Tribunal proceedings that neither party sought to challenge the Tribunal’s approach to the meaning of “permanent” for the purpose of Table 3. This agreed approach is relevant to understanding the context of the appeal. The Tribunal declined to adopt a prescriptive definition of the term “permanent” (as in “permanent mental disorder”, in effect the gateway to an award at levels 4, 6 or 8, namely Items A1, 1 and 2) but expressed the following views.

First, the dictionary definition of “permanent” implied something that lasted indefinitely without change, whereas mental disorders “commonly change as people respond to treatment and medication”. The dictionary definition, applied in isolation, was therefore too “simplistic” (paragraph 54).

Second, the definition of “permanent” in Article 5(7)(a) of the 2011 Order was not directly applicable, because that definition governed the meaning of “permanent functional limitation or restriction” in Table 3 and not the permanence or otherwise of the mental disorder itself (paragraph 50).

Third, however, the Tribunal considered that the Article 5(7)(a) definition provided a “useful guide”, noting that “It stands to reason that if there has not been appropriate clinical management of the mental disorder, maximum medical improvement has [not] been reached, and that common treatment options are available but have not been undertaken, then those are relevant factors in deciding if a mental disorder is permanent or not” (paragraph 54).

It followed that the Tribunal considered that when deciding whether a mental disorder was “permanent”, two factors would be relevant. The first was whether there has been “appropriate clinical management”. The second was whether “common treatment options are available but have not been undertaken”.

Ms Skander, on behalf of the Appellant, submitted that the Tribunal’s decision discloses four manifest errors of law.

The first is that the Tribunal allegedly made a material mistake as to fact. In particular, Ms Skander alighted on the distinction between Dr Cahill’s report -which had recorded that the Appellant had “not received any formal psychological treatment to date” (emphasis added) – and the Tribunal’s decision which, having found that the Appellant had “not received any formal psychological treatment” (without the qualifier “to date”), went on to find as a fact that he had undergone a course of CBT. Ms Skander submitted that the Tribunal had misunderstood Dr Cahill’s evidence – in doing so, it had erroneously adopted evidence that was correct when it had been stated in 2017 as still being correct six years later in 2023.

The second is a submission, in the alternative, that if there was no mistake then there must have been a procedural irregularity. Ms Skander contended that if the Tribunal was using “formal psychological treatment” in a technical sense, for example, as excluding CBT, then as a matter of fairness the point should have been put to the Appellant for comment (who may have wished to adduce further evidence by way of reply). In this context counsel prayed in aid the principle in Butterfield and Creasy v Secretary of State for Defence [2002] EWHC 2247 (Admin).

The third is that the reasons for the Tribunal’s decision are said to be inadequate, applying the well-known test adumbrated in South Bucks District Council v Porter (No.2) [2004] UKHL 33. Ms Skander’s submission was that the question of the permanence of the Appellant’s mental disorder was central to the appeal before the Tribunal, and as such the Appellant needed to understand how the panel had resolved the question of treatment. As it was, she argued, the Appellant and his advisers were at a loss to understand what was meant by the expression “formal psychological treatment” as deployed by the Tribunal.

The fourth avers that the Tribunal gave weight to immaterial matters. In particular, it is submitted that the Tribunal “rearranged the sentences and words of Dr Cahill’s report, thereby changing the meaning of what was conveyed in his evidence and in doing so gave weight to matters that were immaterial” (skeleton argument at paragraph 38). As such, Ms Skander submitted the present case was effectively on all fours with the Upper Tribunal’s decision in LM v Secretary of State for Defence (CAF/2760/2019), where it was found that the FTT had misunderstood the expert medical evidence.

Mr Hays, for the Secretary of State, argued that the appeal invited consideration of an immaterial question, namely whether certain therapy that the Appellant had undergone counted as “formal psychological treatment”. His core submission was that the Tribunal’s decision did not depend on the answer to that question at all. Rather, as he put it in his skeleton argument (at paragraph 16):

The Respondent therefore argues that the Appellant’s focus on the expression “formal psychological treatment” is entirely misplaced. It is immaterial because the Tribunal’s conclusion was based on the psychological therapy that remained to be done, and did not depend on the adjective used to describe the therapy or other treatment that the Appellant had already completed.

The Appellant’s skeleton argument asserted that “the grounds of appeal go to the FtT finding of fact that at the time of the hearing ‘[Mr H] has not received any formal psychological treatment’ at §35” (paragraph 7). In her oral submissions Ms Skander sought to argue that the materiality of this finding of fact was in effect self-evident, contending that there were two ways of viewing its relevance. The first was by way of what she described as a broad analysis, namely that a finding of fact that there had been no formal psychological treatment was plainly material to the question of permanency. The second was what she termed as a more forensic approach. In particular, she submitted that one cannot safely answer the question as to what remans to be done and whether it was clinically indicated without safe findings of fact as to what treatment had already been undertaken.

However, I am satisfied that the Tribunal’s finding that the Appellant had not received any formal psychological treatment was, as Mr Hays submitted, immaterial to the outcome of the appeal. The Tribunal applied the correct and agreed legal test for permanence, which took into account both the dictionary definition and the Article 5(7)(a) definition. In applying that more holistic test, the Tribunal was plainly aware both that Dr Cahill’s report dated from 2017 and that its own task was to consider the Appellant’s current state (namely, as at the date of the decision under appeal). At paragraphs 35 and 36 of its decision, the Tribunal had summarised the treatment that the Appellant had already received. There is, moreover, no suggestion that in doing so the Tribunal had overlooked any relevant treatment in its summary. In its conclusions, at paragraph 55, the Tribunal focussed on EMDR treatment as therapy which had been recommended as being of potential benefit to the Appellant but which had not as yet been accessed. Applying the appropriate legal test, the Tribunal accordingly found that the Appellant’s mental disorder was not permanent. In reaching that conclusion the Tribunal’s reasons had properly considered the treatment that had already been undertaken. The label or adjective used to describe that previous treatment was in no way determinative of the appeal. Indeed, the Appellant might have had the treatment summarised at paragraphs 35 and 36, or might (hypothetically) have had no relevant treatment at all, but either way the findings at paragraphs 55 and 56 explained adequately, and independently, why the Tribunal concluded that his mental disorder was not “permanent” such that he might qualify for a higher level Table 3 descriptor in respect of his PTSD.

Furthermore, and in any event, the Appellant’s four more specific grounds of appeal are not persuasive for the following reasons.

The first ground of appeal asserts that paragraph 35 of the Tribunal’s reasons discloses a material mistake of fact. The Appellant’s submission is that there is a flat contradiction between the Tribunal’s findings respectively that the Appellant (a) “has not received any formal psychological treatment” (paragraph 35) and yet (b) “has completed 12 sessions of Cognitive Behavioural Therapy [‘CBT’]” (paragraph 36).

This contradiction is at best superficially apparent and is certainly not for real. I am entirely satisfied that the expression “formal psychological treatment” is not being used in any highly technical sense. This much is clear both from the ordinary meaning of the words and from the context of Dr Cahill’s report.

So far as the ordinary meaning of the words is concerned, there has been no suggestion that the substantive phrase “psychological treatment” requires unpacking or further elucidation. Rather, it is the qualifying adjective “formal” which Ms Skander takes issue with. The dictionary definition of “formal” includes “officially sanctioned or recognised” and “done in accordance with convention”. So, on the face of it at least, “formal psychological treatment” simply means no more and no less than e.g. “relevant approved psychological treatment”.

As regards the context of Dr Cahill’s report, and on a fair reading of the passage discussing the Appellant’s treatment (see paragraph 11 above), it is tolerably clear that Dr Cahill was referring to PTSD-specific treatment. In the first two paragraphs of that passage the consultant summarised the Appellant’s limited treatment to date (including assessments and pharmacological intervention). This stands in stark contrast to what Dr Cahill describes (in the third paragraph), namely that “The treatment requirement for PTSD is trauma-focussed therapy in the form of either Trauma Focussed Cognitive Behavioural Therapy or Eye-Movement Desensitisation and Reprocessing (EMDR)” (emphasis as in the original). Dr Cahill then referred to the preparatory psychological work that would be needed before engaging in such specialist treatment.

It is plain from its reasons that the Tribunal was adopting the same approach as Dr Cahill. As such it was drawing a distinction between non-formal types of psychological treatment (e.g. psychological preparation, help with coping strategies and other limited interventions) and formal treatment (being the trauma-focussed CBT or EMDR highlighted by Dr Cahill. Given that broad categorisation, and given the evidence the FTT received as to the low-level nature of the CBT sessions attended by the Appellant, it is both reasonable and entirely understandable that the Tribunal did not regard the CBT sessions that the Appellant completed as meriting the description of being “formal psychological treatment”. In a nutshell, it was not trauma-focussed therapy. At best it could be described as a form of psychological preparation for such advanced therapy.

I should add that there was some debate at the Upper Tribunal oral hearing as to whether it was appropriate to have regard to the NICE guidelines on treatment for PTSD. I simply observe that in the event I have not needed to consider those guidelines. I am satisfied that the Tribunal’s findings were open to the panel on the basis of Dr Cahill’s report and the other evidence it received.

This second ground of appeal posits that the Tribunal’s failure to invite submissions from the Appellant on whether the CBT sessions he had undertaken amounted to “formal psychological treatment” constituted procedural unfairness. However, this assumes that the phrase in question carries some technical meaning that needed to be explored. For the reasons discussed above, that is a false premise. In addition, the appropriate adjective to be attributed to the CBT sessions was immaterial, given that the Tribunal’s primary focus had to be on what type(s) of future treatment remained relevant to assessing the question of permanence.

The reasons challenge fares no better. On one reading it must surely stand or fall with the first two grounds of appeal. Insofar as it is a freestanding ground of appeal, the relevant standard for adequacy of reasons is not in dispute and was helpfully described by Upper Tribunal Judge Poole QC (as she then was) in DS v SSWP (ESA) [2019] UKUT 347 (AAC). There, she said that the question is whether the first instance tribunal “deal with the substantial questions in an intelligible way, leaving the informed reader in no real and substantial doubt as to the reasons for the decision and what material considerations were taken into account” (at paragraph [9]). On any fair reading the Tribunal’s reasons in this case comfortably meet that threshold. In short, and in summary, the Tribunal found that the previous treatment undergone by the Appellant was insufficient to show permanence. Instead, the Tribunal concluded there were further treatment options reasonably open to the Appellant before it could be said that he had achieved a state of “maximum medical improvement” as envisaged by the test for permanence.

The final ground of appeal concerns the way in which parts of Dr Cahill’s report were taken in a different order by the Tribunal and thereby (so it is said) changing its meaning. I reject this submission. The key finding in Dr Cahill’s report was that the Appellant’s prognosis was “poor”. The Tribunal was well aware of that assessment and indeed quoted directly from it. As such, the present case is far removed from the circumstances obtaining in LM v Secretary of State for Defence. That was a case in which the first instance tribunal misunderstood the expert medical evidence whereas in the present case the Tribunal both understood and reiterated the central point being made by the expert witness. It is plain from the Tribunal’s judgment that it was well aware of the difficulties faced by the Appellant. However, the fact that the prognosis was poor (both when Dr Cahill was reporting in 2017 and indeed when the Tribunal was sitting in 2023) did not necessarily mean that the Appellant’s condition was “permanent” as that term was properly understood.

I therefore conclude that the decision of the First-tier Tribunal does not involve any material error of law. I therefore dismiss the appeal (Tribunals, Courts and Enforcement Act 2007, section 11).