MA v The Secretary of State for Defence
[2024] UKUT 124 (AAC)
DN v The Secretary of State for Defence
31 July 2024
[2024] UKUT 238 (AAC)
Upper Tribunal
A soldier claimed for hearing loss. The first court said the loss was caused by service. The second court decided how severe the loss was and that it didn't qualify for payment. The final court said the second court was right to make its own decision on the severity of the hearing loss, even if it considered what the first court said.
Key Facts
- •Appellant, a former army member, claimed for hearing loss under the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011 (AFCS).
- •Initial claim rejected as hearing loss wasn't deemed caused by service.
- •First-tier Tribunal (FTT1) overturned the rejection, finding the hearing loss was predominantly caused by service.
- •Secretary of State then determined the hearing loss didn't meet the AFCS tariff level for an award.
- •Second FTT appeal dismissed, upholding the Secretary of State's decision.
- •Appellant appealed to the Upper Tribunal (UT), arguing the second FTT wrongly relitigated facts already decided by FTT1.
Legal Principles
The scope of an appeal under the Pensions Appeal Tribunals Act 1943 is limited to whether the decision was rightly made on the specified ground.
Pensions Appeal Tribunals Act 1943, section 5A(1)(b)
Estoppel does not apply between First-tier Tribunals. The overarching consideration is fairness.
SSHD v BK (Afghanistan) [2019] EWCA Civ 1358; SSHD v Patel [2022] EWCA Civ 36; Sultana v SSHD [2021] EWCA Civ 1876
The relevant date for assessing injury under the AFCS is the date of the decision, and all relevant evidence should be considered.
Secretary of State for Defence v Duncan and McWilliams [2009] EWCA Civ 1043
Guidance on the approach of a second tribunal to findings of fact made by a first tribunal (from Devaseelan, summarised in BK (Afghanistan)).
Deveseelan v SSHD [2002] UKIAT 702; SSHD v BK (Afghanistan) [2019] EWCA Civ 1358
Outcomes
Appeal dismissed.
The UT found the second FTT did not wrongly relitigate facts. The FTT1's decision focused on whether the hearing loss was caused by service, not its extent. The second FTT addressed the extent of the hearing loss, a separate issue not pre-determined by FTT1.