DN v The Secretary of State for Defence

This is an appeal against the decision of the First-tier Tribunal of 14 February 2023 (“the FTT”). By that decision, the FTT dismissed the appellant’s appeal from the decision of the Secretary of State for Defence dated 14 October 2021. That decision was to the effect that the appellant’s hearing loss (the accepted condition) fell below tariff level, and so no award could be made under the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011 (“the AFCS”).

The essence of the appellant’s challenge to the FTT’s decision is an argument that the FTT, in deciding the correct tariff level for his hearing loss, was bound by the findings of fact made by the previous First-tier Tribunal which had decided that the appellant’s hearing loss was caused by service.

Although estoppel arguments had been relied on at one stage by the appellant, no such arguments were made before me. Instead, the appellant’s primary ground of appeal focuses on what he argues are the applicable principles arising from case law such as paragraphs [32]-[39] of SSHD v BK (Afghanistan) [2019] EWCA Civ 1358.

Section 5A of thePensions Appeal Tribunals Act 1943 deals with appeals in AFCS cases. It provides as follows:

“5A:-(1) Where, in the case of a claim to which this section applies, the Minister makes a specified decision—

(a)

he shall notify the claimant of the decision, specifying the ground on which it is made, and

(b)

thereupon an appeal against the decision shall lie to the appropriate tribunal on the issue whether the decision was rightly made on that ground.

(1A) This section applies to—

(a)

any such claim as is referred to in section 1, 2 or 3 of this Act;

(b)

a claim under a scheme mentioned in section 1(2) of the Armed Forces (Pensions and Compensation) Act 2004 (compensation schemes for armed and reserve forces).

(2)

For the purposes of subsection (1), a “specified decision” is a decision (other than a decision which is capable of being the subject of an appeal under any other provision of this Act) which is of a kind specified by the Minister in regulations.”

Regulation 3 of the Pensions Appeals Tribunals Act 1943 (Armed Forces and Reserve Forces Compensation Scheme) (Rights of Appeal) Regulation 2011s (“the Specified Decisions Regs”) is made pursuant to section 5A(2) of thePensions Appeal Tribunals Act 1943. That regulation provides that a decision is a specified decision (and therefore is appealable), as follows:

“3(1)….the following decisions are specified for the purposes of section 5A(2) of thePensions Appeal Tribunals Act 1943, that is a decision which—

(a)

determines whether a benefit is payable;

(b)

determines the amount payable under an award of benefit; and

(c)

is issued under article 26(6) (refusal to make a temporary award permanent etc.) or 26(8) (addition of new descriptor) of the 2011 Order, relating to the making of a permanent award.

Section 5B ofPensions Appeal Tribunals Act 1943 further provides that:

“5B:- In deciding any appeal under any provision of this Act, the appropriate tribunal —

(a)

need not consider any issue that is not raised by the appellant or the Minister in relation to the appeal; and

(b)

shall not take into account any circumstances not obtaining at the time when the decision appealed against was made.

Section 1 of the Armed Forces (Pensions and Compensation) Act 2004 empowers the making of the AFCS. It provides, relevantly, as follows:

“Pension and compensation schemes: armed and reserve forces

1:- (1) The Secretary of State may by order establish schemes which, in respect of a person’s service in the armed forces, provide—

(a)

for benefits, in the form of pensions or otherwise, to be payable to or in respect of him on termination of service or on death or retirement, or

(b)

for payments to be made towards the provision of such benefits.

Such a scheme is referred to in this Act as an armed forces pension scheme.

(2)

The Secretary of State may by order establish schemes which provide for benefits to be payable to or in respect of a person by reason of his illness or injury (whether physical or mental), or his death, which is attributable (wholly or partly) to his service in the armed forces or the reserve forces.

Such a scheme is referred to in this Act as an armed and reserve forces compensation scheme.”

Under article 8 of the AFCS it is provided that:

Article 9 of the AFCS deals with the different situation of an injury not caused by service but worsened by service. It sets out, insofar as is material:

“Injury made worse by service

9.

—(1) …..benefit is payable to or in respect of a former member of the forces by reason of an injury made worse by service if the injury….

(c)

arose during service but was not caused by service,

And…service on or after 6th April 2005 was the predominant cause of the worsening of the injury.

(2)

Benefit is only payable under paragraph (1) if the injury has been worsened by service and remains worsened by service on—

(i)

the day on which the member's service ends; or

(ii)

the date of claim if that date is later.

Article 15 of the AFCS is concerned with the benefits payable for an injury if, for example, an injury has been caused by service on or after 6 April 2005, and provides:

“Description of benefits - injury

a fast payment; and

medical expenses.

Schedule 3 has effect for the purpose of determining—

the descriptor;

the tariff level;

the amount of a lump sum;

the conditions relating to payment of a supplementary award; and

the amount of a supplementary award.”

Part 1 of Schedule 3 to the AFCS sets out what it describes as DESCRIPTORS, TARIFF LEVELS AND AMOUNTS – “THE TARIFF”. There are then listed under Part 1 various Tables dealing with different types of injury or illness. For example Table 1 is about “Burns”, Table 2 concerns “Injury, Wounds and Scarring”, Table 3 is about “Mental Disorders” and Table 7 deals with the “Senses”. Each Table is structured so that it covers “Item”, “Column Level” and “Description of injury and its effects (“descriptor”)”. What falls below in each Table are injuries graded in terms of their seriousness, from most serious down to least serious. So, under “Table 1 – Burns” the most serious injury is one which has left the person with “Burns, with partial, deep or full thickness burns affecting 70% or more of whole body surface area”, whereas the least serious type of ‘Burn’ is “Burns, with superficial burns affecting 1 to 4.4% of whole body surface area”.

In addition, certain of the descriptors in Schedule 3 deal with the effects of the injury. Thus under ‘Table 2 – Injury, Wounds and Scarring’ the injury may be a “Complex injury covering all or most of the area from thigh to ankle or shoulder to wrist, causing permanent significant functional limitation or restriction”. And under “Table 3 – Mental Disorders” includes a “Mental Disorder, causing functional limitation or restriction, which has continued, or is expected to continue for 5 years”. For completeness, under “Table 7 – Senses”, bilateral deafness and bilateral hearing loss extends from “Total deafness in both ears” to “Bilateral permanent hearing loss of 50-75dB averaged over 1, 2 and 3kHz”.

It is important to note that on the face of it the AFCS does not set down a definitive, single stage at which the extent to which an injury has been caused (or made worse) by service is to be determined. No bright lines are drawn in the AFCS, demarcating where and when that issue (if it arises) must be decided. Putting this point another way, there is no express preclusion against determining that issue at the ‘regulation 3(1)(b) of the Specified Decisions Regs stage’ of deciding the correct amount of the award, if it has not already and clearly been decided.

In terms of claiming and adjudication under the AFCS, article 43 makes it a condition of entitlement that a claim is made for most benefits. Adjudication is dealt with in Part 7 of the AFCS. Under article 51 of the AFCS:

“Decisions

51.

—(1) The Secretary of State is to determine any claim for benefit and any question arising out of the claim.

(2)

The Secretary of State is to give reasons for the decision.

(3)

The decision and the reasons for the decision must—

(a)

be in writing;

(b)

be given or sent to the claimant; and

(c)

inform the claimant of any right that the claimant may have—

(i)

to a reconsideration of the decision under article 53; and

(ii)

to appeal that decision to the appropriate tribunal under section 5A(1) of thePensions Appeal Tribunals Act 1943.”

Article 54 deals with finality in relation to the decision-making of the Secretary of State, and provides:

“Finality of decisions

54.

—(1) Where the Secretary of State has made a final decision awarding benefit, there is to be no review of that decision except in the circumstances specified in articles 55, 56, 57, 58 and 59.

(2)

Where the Secretary of State has made a final decision which makes no award of benefit, there is to be no review of that decision except in the circumstances specified in article 59.

(3)

In this article, and subject to paragraph (4), a final decision is—

(a)

a decision under article 51;

(b)

a decision making a final award under article 52;

(c)

a decision revised by the Secretary of State under article 55, 56, 57, 58 or 59;

(d)

a decision made under article 55, 56, 57 or 59 which maintains the decision under review;

(e)

a decision revised by the Secretary of State following a reconsideration under article 53; or

(f)

a new decision which maintains the original decision following a reconsideration under article 53.

(4)

The decisions referred to in sub-paragraphs (a) to (d) are final decisions where there has been no application for reconsideration under article 53, or the time for such an application has expired.

Therefore, when the Secretary of State decided (see further below) that the appellant’s hearing loss was not caused by service, that was a final decision on that issue, subject to that decision being appealed. However, nothing in Part 7 of the AFCS mandated any necessary content or scope to that decision under article 8, such that it was required to determine the extent to which the injury had been caused by service. Moreover, Part 7 of the AFCS says, and can say, nothing about finality of decisions made by the First-tier Tribunal on appeal.

The appellant served in the Army from March 2011 to November 2018. Whilst still in the Army, on 10 April 2018 he submitted a claim under the AFCS. It was treated as being a claim for bilateral noise induced sensorineural hearing loss (”BNISH” or “hearing loss”). Understandably, this is not what the appellant said in his claim form. What he claimed for, under “Condition/Injury/Illness you are claiming”, was “Loss of hearing on both left and right ears”. The appellant went on in the same claim form to explain why he thought his loss of hearing had been caused by his service in the Army. That claim was rejected by the Secretary of State on 19 February 2019.

The decision of 19 February 2019 accurately set out the claimed injury as “Loss of hearing on both left and right ears”. Under “Incident/Exposure/Behaviour” the decision form set out the appellant’s case that the incident/exposure was in 2016. The decision form then narrated what the appellant had said on his claim form about losing his hearing gradually during his service in the Army, particularly after an exercise in Canada. The appellant had described in his claim form how he had felt some hearing loss as a drummer in his company, but the hearing loss had got worse after the Canada exercise. That exercise, as described by the appellant in his claim form, involved him driving a Warrior fighting vehicle and there had been lots of shooting and other vehicle noise exposure.

The reasons for the decision given in the 19 February 2019 decision form were that there was no evidence in the appellant’s electronic medical records of unprotected noise exposure due to service, and the Secretary of State (therefore) did not accept, per article 8(1) of the AFCS, that the appellant’s hearing loss was wholly or partly caused by service. The Secretary of State decision maker expressly relied on “the reason provided by the Medical Advisor on page 3&4 [of the decision form]”. The request for medical advice referred the medical advisor to the “potential process causes” (e.g., the appellant driving the Warrior vehicle), said that the hearing tests had been inconsistent, and asked for advice as to whether “service is the predominant cause of hearing loss”. The medical advice considered eight medical results from between 2016 and 2018 concerning the appellant’s hearing. It concluded that:

“The results of the objective and subjective tests of hearing are inconsistent and conflicting. There is some evidence to support a diagnosis of bilateral sensorineural hearing loss. However, there is no evidence of unprotected noise exposure due to service. The Control of Noise at Work Regulations 2005….came into force for all industry sectors in Great Britain on 6 April 2006 and therefore [the appellant] would be sufficiently protected against any excessive noise in the workplace. On the balance of probabilities, the hearing loss is not wholly or partly caused by service and can be rejected under AFCS.”

Pausing at this point, it seems clear, in my judgement, that this decision was rejecting the claim on the ground that the claimed injury had not been caused by service. It was not a decision that the appellant did not have an injury. It was a ‘no service causation’ decision. Whether that lack of causation was in respect of the whole or any of the appellant’s hearing loss as it presented at the time of the 2018 claim was irrelevant to the decision. The decision was not, as it could have been, that only part of the hearing loss was caused by service (because some of the hearing loss presenting in 2018 had another, non-service, cause.) In the language of section 5A(1)(a) of thePensions Appeal Tribunals Act 1943 and regulation 3(1)(a) of the Specified Decisions Regs, (the lack of service) causation was the ground on which the claim was rejected.

As the appellant had left the Army by the time of the decision, for completeness the decision also considered whether article 9(1)(c) of the AFCS was met, but this was also rejected. It did so because “[f]ollowing the audiogram in March 2016, there is no medical evidence of noise exposure due to service. [The appellant was] downgraded to protect you from any noise exposure. [S]ervice is not the predominant cause of worsening of the hearing loss.” The medical advice also addressed worsening and article 9(1)(c), though that advice was not expressly incorporated into the Secretary of State’s decision or the reasons for it (albeit the advice is in almost identical terms to the decision and the reason for it). The relevant part of the medical advice on ‘worsening’ reads:

“Following the audiogram in March 2016, there is no medical evidence of noise exposure due to service. [The appellant] was downgraded to protect him from any noise exposure. [T]herefore service is not the predominant cause of worsening of the hearing loss. Worsening can be rejected under Article 9[(1)](c).”

This decision was challenged by the appellant. In this (first) appeal the appellant argued:

“[t[he hearing test are inconsistent and hearing loss is [definitely] severe and caused by noise from service. I had low concentration at times and confusion with the noises to respond to I had to arrange a hearing test in Germany on my own and there it was confirmed that there is a hearing problem”.

On its face, this appeal was arguing that the hearing loss was caused by a service rather than that it was made worse by service.

The Secretary of State reconsidered the decision post this appeal but maintained it. In that reconsideration it was said that the Secretary of State remained content on the balance of probabilities that the appellant’s hearing loss was not wholly or partly caused by service. This was because:

“Whilst it is agreed that the objective and subjective hearing tests are inconsistent and conflicting with some evidence to support a diagnosis of bilateral sensorineural hearing loss, there remains no evidence within your medical records of unprotected noise exposure during your Army service.”

In the appeal response to what I will term the (first) First-tier Tribunal, the Secretary of State referred to the decision under appeal as being a specified decision that “the condition hearing loss is not due to, or made worse by, service” and asked the tribunal to:

“decide if the claimed condition Hearing loss is either predominantly caused by, or predominantly made worse by, service in accordance with the rules of the [AFCS].”

I would note, again, that no part of this ‘section 5A(1)(b) of thePensions Appeal Tribunals Act 1943’ question to the (first) First-tier Tribunal was about the extent of the appellant’s hearing loss. Nor was the question being asked whether the appellant had any hearing loss. The Secretary of State was only asking the (first) First-tier Tribunal to decide whether the claimed condition was caused (or made worse) by service.

On 15 June 2021, the (first) First-tier Tribunal allowed the appeal. Its decision reads:

“The unanimous decision of the Tribunal was to allow the appeal against the decision of the respondent that his hearing loss was not predominantly caused by service.

The tribunal found that the appellant suffered from bilateral sensorineural hearing loss and that it was predominantly caused by service.”

In making the first finding – that the appellant suffered from bilateral sensorineural hearing loss – the (first) First-tier Tribunal in my judgement answered a question it had not been asked.

In its reasons for the decision this (first) First-tier Tribunal took the view that the claim had been refused on the basis that “the appellant’s hearing tests were inconclusive as to whether he had suffered hearing loss and that, if he had done so, he had not shown that any such hearing loss was caused by service”. The (first) First-tier Tribunal then proceeded to address both issues. It found on the balance of probabilities that the appellant suffered from bilateral sensorineural hearing loss. In so doing, the (first) First-tier Tribunal founded particularly on the Institute of Naval Medicine’s report of 16 October 2018, which it found was the most reliable and objective report. It was also the most recent. Given the main ground of appeal concerns what the (first) First-tier Tribunal decided or found as a fact about the appellant’s hearing loss, I set out the most relevant parts of its reasoning around the Institute of Naval Medicine report.

“3.

The claim was refused on 19 February 2019…on the basis that the appellant’s hearing tests were inconclusive as to whether he had suffered hearing loss and that, if he had done so, he had not shown any such hearing loss was caused by service…..

14.

On 16 October 2018, tests were conducted by the Institute of Naval Medicine (INM) in Gosport. These test used Auditory Steady State Response (ASSR), which is a way to assess hearing loss by objectively evaluating the electrophysiological thresholds in a subject. The INM test result…and the report based thereon indicated that the appellant had bilateral hearing loss of 65dB across the four frequencies measured, with the exception of at 500Hz in his right ear, which was normal.

15.

As noted above the tribunal was presented with conflicting audiometric evidence, which included conflicting results between objective tests in Swindon, Paderborn and by the INM in Gosport. Of this evidence, however, the tribunal found the INM report, which was also the most recent, was the most reliable. The tribunal found that the Defence Audiology Service at INM is a centre of excellence and used a modern and reliable method to assess the appellant’s hearing loss, which, whilst yielding results which were inconsistent with those from Swindon, were supported by those from Paderborn.

16.

The findings of the INM were also supported by the appellant’s subjective account of hearing loss and the fact that he continued to wear, and apparently benefit from, the hearing aids prescribed in Paderborn.

17.

The tribunal therefore found that, on the balance of probabilities, the appellant suffered from bilateral sensorineural hearing loss….

19.

The tribunal could find no evidence of noise exposure outside service and found that, in the absence of another cause, the most likely cause of the appellant’s hearing loss was noise exposure in service.

20.

Accordingly, the tribunal found that the appellant’s hearing loss was predominantly caused by service and the appeal was allowed to this extent.”

This (first) First-tier Tribunal’s decision was not challenged by either party.

The appellant having succeeded in establishing under article 8 of the AFCS that he had an injury (the hearing loss) which had been caused by service, the Secretary of State then had to decide under article 15 of the AFCS the benefit payable for that injury (that is, the hearing loss). Importantly, it is not disputed that that (second) decision remained to be made. In other words, the appellant accepts that the Secretary of State (and, if that second decision was disputed, the First-tier Tribunal on appeal) still as a matter of law had to decide the extent of the appellant’s hearing loss.

In a decision dated 14 October 2021 the Secretary of State decided that the appellant’s injury of hearing loss did not merit any award under the tariff scheme in the AFCS. The decision of 14 October 2021 stated that there was no evidence of “blast injury to ears of acute acoustic trauma due to impulse noise”, and accordingly in order for an award to be made there had to be evidence that the appellant had bilateral permanent hearing loss of 50-75dB averaged over 1, 2 and 3kHz (per Table 7 in Schedule 3 to the AFCS at Item 13, level 8). The 14 October 2021 decision said that on receipt of the First-tier Tribunal’s decision the appellant’s case had been referred to Veterans UK Medical Services. Those Services had observed that an audiogram performed in an audiology clinic on 15 March 2016 had (a) shown (only) high frequency hearing loss, with the appellant being advised to wear increased hearing protection, and (b) confirmed an average hearing loss over 1, 2 and 3kHz of (only) 25dB on the left and 26dB on the right. In other words, the hearing loss was not as severe as 50-75dB, and therefore no tariff award could be made.

In seeking medical advice before making the above decision, the Secretary of State’s decision maker said that it seemed it had been accepted that the appellant had been a drummer in service, had driven a Warrior vehicle and had been on firing ranges, but at the time he would have been provided with hearing protection. However, the (first) First-tier Tribunal had ruled that the most likely cause of the appellant’s hearing loss was noise exposure in service. The decision maker drew the Medical Advisor’s attention to the Institute of Naval Medicine’s report of 16 October 2018.

The Medical Advisor’s advice referred to an audiogram of 15 September 2016 which had shown severely abnormal hearing thresholds across all frequencies despite no further exposure noise. An ENT assessment in Germany in November 2016 had produced broadly similar results to those in March 2016. The medical advice continued by saying that the accepted noise exposure due to service had been prior to the audiogram in March 2016 and there was no evidence of noise exposure after March 2016. It further stated that it was medically accepted that once an individual was removed from the source (of the noise), no further damage could arise from it. Any further hearing loss the appellant suffered after March 2016 could not, therefore, be attributable to service. (This was seemingly the basis for distinguishing the Institute of Naval Medicine’s report of 16 October 2018.) And the audiogram of 15 March 2016 showed only hearing loss over 1, 2 and 3kHz of 25dB on the left and 26dB on the right.

It was this decision that the appellant appealed to the FTT and which the FTT upheld. Adopting the wording used by the FTT in its decision notice, the question before the FTT under section 5A(1)(b) of thePensions Appeal Tribunals Act 1943 and regulation 3(1)(b) of the Specified Decisions Regs was where to place the accepted condition (i.e., the hearing loss) in the tariff in Part 1 of Schedule 3 to the AFCS.

The FTT’s decision was to:

“dismiss the appellant’s appeal against a decision by the respondent to place his accepted condition:

Bilateral noise induced sensorineural hearing loss:

at or below tariff level.”

In its reasons for decision the FTT recorded as the “Background of the appeal” that the appellant’s claim had initially been rejected as it was not accepted that the appellant’s hearing loss was caused by noise exposure in service, but on appeal the (first) First-tier Tribunal had allowed the appeal and found the appellant suffered from BNISHL which was predominantly caused by service. As for the decision under appeal to the FTT, the FTT described it as a decision that the appellant had not reached the required level of hearing loss for an award under the AFCS, and therefore the accepted condition of BNISHL fell below tariff level. The FTT said that the respondent had considered that the accepted noise exposure was prior to 2016 and that the most appropriate hearing test was an audiogram dated 2016, after which the appellant had been advised to wear increased hearing protection.

The appellant was represented by Mr Searle before the FTT. His argument did not rely on an analysis of the many and differing hearing test results in the FTT’s bundle. The appellant argued, instead, that the FTT was bound by the findings of the (first) First-tier Tribunal and, in particular, was bound by the finding that the Institute of Naval Medicine’s report of 16 October 2018 was the most reliable and most accurate record of the appellant’s hearing loss. At that stage, the appellant’s argument was founded on (issue or cause of action) estoppel to the effect that where an issue had been determined between the parties in earlier proceedings, it was binding on them in subsequent proceedings: per Virgin Atlantic Airways Ltd v Zodiac Seats Ltd [2013] UKSC 46; [2014] 1 A.C. 160.

In rejecting these arguments, the FTT stated that it was not satisfied that the (first) First-tier Tribunal had addressed its mind to the matter of quantum or tariff selection when it gave its reasons for its entitlement decision. Moreover, the FTT was satisfied that the (first) First-tier Tribunal had no intention of binding the FTT in deciding the correct tariff selection. In the FTT’s view, the main finding of the (first) First-tier Tribunal was that the appellant had suffered hearing loss due to service, rather than the quantum of that loss. Looking afresh at the hearing tests before it, the FTT said that it had before it a very clear trail of evidence from cortical evoked response audiometry (CERA) tests. These in the view of the FTT were more reliable than the audiogram tests. The audiogram tests had given inconsistent and unreliable results. Given the very clear thread of evidence of CERA tests between February 2017 and November 2018 showing normal hearing, the FTT said that it could not consider itself bound by the (first) First-tier Tribunal, which the FTT said was dealing with a different appeal. The FTT concluded its reasons for dismissing the appeal as follows:

“The Tribunal is satisfied that, at most, the appellant’s hearing loss due to service can be shown to be as recorded in the March 2016 audiogram, and there is a strong argument that he has no reliably verified hearing loss. The [Institute of Naval Medicine] was not asked to comment on the flat line hearing loss across all frequencies, which is not consistent with noise induced hearing loss. The Tribunal finds that the decision that the hearing loss is below tariff is correct.”

Pursuant to permission granted by the First-tier Tribunal, the appellant appeals to the Upper Tribunal on three main grounds.

Ground 1 is that the FTT erred in law by allowing the respondent to relitigate factual matters finally decided by the (first) First-tier Tribunal. In essence, this contains the key argument that the Secretary of State on the tariff decision, and on appeal the FTT, was bound by the issues of fact finally determined by the (first) First-tier Tribunal which were common to both the entitlement decision and the tariff selection decision.

As I have indicated earlier, this main ground of the appeal is not based on any estoppel argument but the argument that the FTT erred in not following the approach set down in paragraphs [32]-[39] of SSHD v BK(Afghanistan) [2019] EWCA Civ 1358; [2019] 4 WLR 111, and factor 6 within para. [32] of BK(Afghanistan) in particular, which says:

“(6)

If before the second adjudicator the appellant relies on facts that are not materially different from those put to the first adjudicator, the second adjudicator should regard the issues as settled by the first adjudicator's determination and make his findings in line with that determination rather than allowing the matter to be re-litigated.”

Reliance was also placed on TK (Consideration of Prior Determination, Directions) Georgia [2004] UKIAT 149 under the first ground of appeal, and the statement in paragraph [19] of TK that :

The first ground of appeal argues that as a result of this case law, the FTT erred by permitting the Secretary of State to re-litigate the same arguments he had made before the (first) First-tier Tribunal, namely the Secretary of State’s argument that the March 2016 audiogram was the most reliable measure of the appellant’s hearing loss and that it should be preferred to the Institute of Naval Medicine’s report of 16 October 2018 because any hearing loss after March 2016 was not attributable to service. In the hearing before me the point was put slightly differently. It was argued that the FTT had erred in law by allowing the issue of causation (that is, whether all of the appellant’s hearing loss presenting in 2018 was caused by service) to be relitigated

Ground 2 is that the FTT erred in law by failing to give the parties a reasonable opportunity to address relevant matters. It is argued under this ground that the parties ought to have been afforded the opportunity to address the FTT’s view that the flat line hearing loss in the Institute of Naval Medicine’s report was not consistent with typical noise induced hearing loss.

Ground 3 is that the FTT erred in law by reaching a decision that no reasonable First-tier Tribunal could have reached. It is said under this ground that no reasonable First-tier Tribunal could have concluded that the Institute of Naval Medicine’s report was not consistent with noise induced hearing loss given (it is argued) “there was a total absence of medical opinion before the [FTT] to support such a finding”.

In opposing this appeal to the Upper Tribunal the Secretary of State for Defence argues as follows.

First, the sole issue for the (first) First-tier Tribunal was whether the appellant’s injury was caused by service. That tribunal was not deciding the extent of any injury caused by service. It had qualified its finding that the appellant’s hearing loss was predominantly caused by service, and the appeal before it was allowed, to this extent. Nor had the (first) First-tier Tribunal made any finding as to the extent of the appellant’s hearing loss. The extent of the appellant’s hearing loss remained to be decided, and that is what had occurred, leading to the FTTs decision.

As for the appellant’s first ground of appeal, the Secretary of State argued that BK (Afghanistan) is only authority for the proposition that the earlier finding or decision is a starting point, rather than being determinative. This was plain from paragraph [43] of BK(Afghanistan) where the Court of Appeal said:

“… That …raised the question of the appropriate response to [the Adjudicator’s] earlier findings of fact. [Counsel for the SSHD] …accepted that as a matter of practice, the tribunal must address its mind to the reasons put forward by the party which is seeking to depart from the previous findings as to why that finding is unreliable so that it should in effect be carried forward into the determination of the appeal now before it. That must be right given what the UT said in the Mubu case about the earlier decision being a starting point, rather than determinative of the issue.

Moreover, in this context SSHD v Patel [2022] EWCA Civ 36 (at paragraph [31]) makes it clear that estoppel does not apply, but that the overarching consideration is one of fairness:

“…the proper approach to be taken by a FTT judge faced with a decision made in an earlier appeal was set out fully at [45] to [50] of [Sultana v SSHD [2021] EWCA Civ 1876]. It would not be helpful to repeat the analysis other than in the following very summary form. The essential position is that the second FTT judge cannot be subject to any principles of estoppel in relation to an earlier finding. Rather, the judge must conscientiously decide the case in front of them applying principles of fairness. Those principles include the potential unfairness of requiring a party to re-litigate a point on which they have previously succeeded. These propositions were drawn from Devaseelan, Djebbar v SSHD [2004] EWCA Civ 804 and BK (Afghanistan).”

The Secretary of State’s primary argument opposing the first ground of appeal is that there was no necessary overlap between the matters decided, or findings made, by the (first) First-tier Tribunal and that which was decided/found by the FTT, and therefore the BK (Afghanistan) line of case law did not apply.

In the alternative, the Secretary of State argued that if the FTT’s findings had overlapped with those made by the (first) First-tier Tribunal, the FTT had, per para. [43] of BK (Afghanistan), sufficiently and conscientiously addressed its mind to whether it should depart from any findings said by the appellant to have been made by the (first) First-tier Tribunal.

Turning to grounds 2 and 3, the Secretary of State argued that the expert FTT had addressed all the relevant medical evidence in detail, the consideration that flat line hearing loss is not consistent with noise induced hearing loss is matter of general medical knowledge which it was appropriate for the FTT to apply, and in any event was only one part of the FTT’s analysis. In these circumstances, the FTT did not need to raise the point with the parties, and it had arrived at a decision that was rationally open to it.

One focus of the oral argument of the parties before me concerned what the (first) First-tier Tribunal had decided on 15 June 2021.

The appellant argued that the (first) First-tier Tribunal had decided that all of his hearing loss had been (predominantly) caused by service. Accordingly, albeit on the basis of the BK (Afghanistan) line of case law, it had been wrong for the FTT to have trespassed on this and redecide the extent to which his hearing loss had been caused by service.

The respondent argued that the issue before the (first) First-tier Tribunal was limited to whether the appellant had any hearing loss that had been caused by service. In overturning the Secretary of State’s negative decision on this issue all the (first) First-tier Tribunal had been deciding was that the appellant had an injury (hearing loss) which had been caused by service. But that tribunal was not in so doing assessing the extent of the appellant’s hearing loss. Further, and in the alternative, all the FTT had done was to assess the extent of the appellant’s hearing loss on the basis of all the evidence before it and found it fell below the minimum tariff in the AFCS, and it was not in so doing deciding the extent of the hearing loss caused by service.

As will become apparent in the discussion below, in my judgement the correct approach to identifying what the (first) First-tier Tribunal had decided is (i) to consider what question or issue was before it, and (ii) in that context consider what it had decided.

It is convenient at this stage to consider BK (Afghanistan), and related case law, in a little more detail before turning to discuss the grounds of appeal. It was not argued before the FTT and so has not been subject of any consideration by that tribunal, but the broad considerations arising under it are similar to those that arose under the estoppel argument which was made to the FTT.

As I have said above, the estoppel argument was not pursued before me. This was on the basis that estoppel not applying in or between First-tier Tribunals is the binding legal effect of BK (Afghanistan) (at paragraphs [37], [39] and [44]) Sultana v SSHD [2021] EWCA Civ 1876 (at [35] and [49]-50]) and SSHD v Patel [2022] EWCA Civ 36 (at 31]). I proceed on that basis in deciding this appeal.

All of the above three decisions of the Court of Appeal arose in the context of adjudication on immigration claims, latterly in the First-tier Tribunal (Immigration and Asylum Chamber). The important foundational basis of all three decisions of the Court of Appeal is that the first adjudicator or First-tier Tribunal had made a material finding of fact in deciding the appeal before them and that issue of fact then became relevant in later and separate appeal proceedings (possibly involving different parties, though the Secretary of State would be the same respondent) before a second adjudicator or First-tier Tribunal. The issue of law that arose was the extent to which the second adjudicator or First-tier Tribunal was bound to accept the finding of fact.

The eight factors set out in BK (Afghanistan) are derived from Deveseelan v SSHD [2002] UKIAT 702, and are as follows:

“(1)

The first adjudicator's determination should always be the starting-point. It is the authoritative assessment of the appellant's status at the time it was made. In principle issues such as whether the appellant was properly represented, or whether he gave evidence, are irrelevant to this.

(2)

Facts happening since the first adjudicator's determination can always be taken into account by the second adjudicator.

(3)

Facts happening before the first adjudicator's determination but having no relevance to the issues before him can always be taken into account by the second adjudicator.

(4)

Facts personal to the appellant that were not brought to the attention of the first adjudicator, although they were relevant to the issues before him, should be treated by the second adjudicator with the greatest circumspection.

(5)

Evidence of other facts, for example country evidence, may not suffer from the same concerns as to credibility, but should be treated with caution.

(6)

If before the second adjudicator the appellant relies on facts that are not materially different from those put to the first adjudicator, the second adjudicator should regard the issues as settled by the first adjudicator's determination and make his findings in line with that determination rather than allowing the matter to be re-litigated.

(7)

The force of the reasoning underlying guidelines (4) and (6) is greatly reduced if there is some very good reason why the appellant's failure to adduce relevant evidence before the first adjudicator should not be, as it were, held against him. Such reasons will be rare.

(8)

The foregoing does not cover every possibility. By covering the major categories into which second appeals fall, the guidance is intended to indicate the principles for dealing with such appeals. It will be for the second adjudicator to decide which of them is or are appropriate in any given case.”

It is important to stress a number of points about the eight Devaseelan factors summarised in paragraph [32] of BK (Afghanistan).

First, they were preceded, in para. [31], with a discussion of the case in Devaseelan. That context was:

“31…..The proper approach of the second tribunal should reflect the fact that the first adjudicator's determination stands as an assessment of the claim that the appellant was then making at the time of that determination. It is not binding on the second adjudicator but on the other hand the second adjudicator is not hearing an appeal against it. It is not the second adjudicator's role to consider arguments intended to undermine the first adjudicator's determination but the second adjudicator must be careful to recognise that the issue before him is not the issue that was before the first adjudicator:

"38.

… In particular, time has passed; and the situation at the time of the second adjudicator's determination may be shown to be different from that which obtained previously."”

Second, they are dependent on, here, the (first) First-tier Tribunal having made a finding of fact in its decision on the appeal before it which the FTT may have needed to reconsider in deciding the appeal which was before it. (Given estoppel is not in play, the appellant accepts that as a matter of law the FTT was not bound by any finding of fact made by the (first) First-tier Tribunal.)

Third, the factors are guidelines. They are not laying down any strict legal code that must be followed.

Fourth, the guidelines seek to ensure consistency of approach by decision makers and respect finality of litigation. However, finality of litigation is subject always to the discretion of the tribunal (or court) if wider interests of justice so require. And, per paragraph [30] of Djebbar v SSHD [2004] EWCA Civ 804, “perhaps the most important feature of the guidance is that the fundamental obligation of every [First-tier Tribunal] independently to decide each new application on its own individual merits was preserved”: per paragraphs [34]-[39] of BK Afghanistan.

Fifth, the first decision or finding of fact is a starting point, it is not determinative: para. [43] of BK Afghanistan. This in my judgement very significantly waters down what was said in TK (see paragraph 40 above). However, the case law still emphasises that the “second FTT judge necessarily will look for a very good reason to depart from the earlier findings. Whether the evidence could have been adduced at the previous hearing may be relevant to that issue. Equally, a very good reason may be that the new evidence is so cogent and compelling as to justify a different finding”: per paragraph [37] of Patel.

Sixth, the key consideration is fairness. This is made clear from paragraph [44] in BK (Afghanistan) where the Court of Appeal said that it did not:

“44…accept that in addressing the question of whether the finding of fact should be carried forward in that way, the tribunal is only entitled to look at material which either post-dates the earlier tribunal's decision or which was not relevant to the earlier tribunal's determination. To restrict the second tribunal in that way would be inconsistent with the recognition in the case law that every tribunal must conscientiously decide the case in front of them. The basis for the guidance is not estoppel or res judicata but fairness. A tribunal must be alive to the unfairness to the opposing party of having to relitigate a point on which they have previously succeeded particularly where the point was not then challenged on appeal. (The underlining is mine and has been added for emphasis.)

See further, Sultana at paragraph [50] and (as set out in paragraph 47 above) Patel at paragraph [31].

I need to make one final observation about this BK Afghanistan line of case law. The Secretary of State accepted for the purposes of this appeal that that line of case law applies to equal effect in the War Pensions and Armed Forces Compensation Chamber of the First-tier Tribunal. I have, accordingly, not heard any argument to the contrary, and I proceed on that same assumed basis. However, I am mindful that the same policy considerations that led to the BK Afghanistan line of case law (e.g., per paragraph [27] of Ocampo v SSHD [2006], as well as fairness, the “maintenance of proper immigration control”) may not have an analogue in armed forces compensation appeals. The approach of the Court of Appeal in the Duncan and McWilliams case which I discuss immediately below, as well as the possible application of a similar rule to that set out by Baroness Hale in paragraph [41] of Gillies v SSWP [2006] UKHL 2 (that the system tries to ensure that the claimant receives the correct award of benefit), might suggest a different approach may apply in AFCS (and War Pensions) appeals.