Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CAF/1670/2012

ADMINISTRATIVE APPEALS CHAMBER

 

Before Upper Tribunal Judge Rowland

 

Decision:  The Secretary of State’s appeal is allowed.  The decision of the First-tier Tribunal dated 24 January 2012 is set aside and the case is remitted to a differently-constituted panel of the First-tier Tribunal to be re-decided.

 

 

REASONS FOR DECISION

 

1. This is an appeal by the Secretary of State against a decision of the First-tier Tribunal dated 24 January 2012, whereby it allowed the claimant’s appeal against a decision of the Secretary of State awarding compensation under the Armed Forces Compensation Scheme 2005 (SI 2005/439) as amended, to the extent of deciding that one of two injuries taken into account at tariff level 12 in determining the amount of compensation should have been taken into account at tariff level 11.

 

The facts

 

2. The claimant, then a private in the Royal Logistic Corps, was accidentally shot whilst on duty in Afghanistan on 28 April 2009.  He was driving a vehicle in a convoy and was ordered to cock his 9mm pistol when the convoy was thought to be coming under contact.  Unfortunately, he then dropped the weapon and it went off when he tried to pick it up while still driving.  The entry wound was in the back of his thigh.  There was also an exit wound and he suffered an open comminuted fracture of the left distal femur.  He underwent surgery at Camp Bastion and was then evacuated to RCDM Selly Oak Hospital where a femoral nail was inserted.  He was subsequently treated at DMRC Headley Court.

 

3. The claimant’s claim for compensation was received on 3 June 2009 and the initial decision was very promptly notified to him on 28 August 2009.  The Secretary of State accepted that the injury was attributable to the claimant’s service and decided that the gun shot wound and the fracture were wounds that, individually, would have merited awards at tariff level 12 under the 2005 Scheme as then in force, being within the terms items 39 of Table 2 in Schedule 4 to the Scheme and item 13 of Table 8 respectively.  The application of article 15(2) meant that only 30% of the appropriate tariff sum was awarded in respect of the second injury but a supplementary award of £1,000 was awarded because the fracture had been an open fracture.  As a tariff 12 award was then £9,075, a total award of £12,797.50 was found to be payable.  The claimant requested reconsideration in a letter dated 3 September 2009 in which he said that he still took pain relief medication and was still unable to walk properly unaided suffered “an incredible amount of pain”.  He also said that his “recovery rate is estimated between 70-80%”.

 

4. On 28 April 2010, a medical board recorded –

 

“[The claimant] who was under the care of DMRC Headley Court was discharged from inter lower limbs after 2 days of admission (5 Feb 10) as he was able to run 6-8 miles on admission.  He has been training carrying 12 kgs of weight.  Denies any psychological problems.

 

[The claimant’s] left leg is shorter by 2 cm and was [sic] he was fitted with an insole to correct the shortness, but is said to be incorrect and he is scheduled to see the podiatrist on 20 May 10.

 

The plan on discharge from DMRC Headley Court was that he regains CV fitness with continuous ERI input locally.  In his enthusiasm he did not report to the PCRF but continued with Sqn PT.  Since 2 weeks ago swelling of left knee with activity.  He is now scheduled to see the Mil Phisio on 30 Apr 10 for assessment and appropriate supervision to overcome the recent problems.

 

He was not examined today.

 

In view of above it is the decision of the TMMB to keep [the claimant] graded P7 L7 MND - 6M (T).  Once he is sorted out by the PCRF and seen by the CPN for his past concerns of aggressive behaviours he can be upgraded appropriately.”

 

5. On 24 June 2010, the Secretary of State decided to maintain the award of compensation.  The decision recorded that “HCNs from Headley Court and MA advice suggest that [the claimant] is on track for making a very good recovery from his injuries.”  The claimant appealed, by way of a letter dated 24 June 2010 that did not contain any grounds,

 

6. A discharge summary report dated 13 July 2010 recorded that the claimant had been discharged from the Vocational Rehabilitation Services at DMRC, Headley Court with a recommendation that he return to work on half days and light duties and that he hoped to be upgraded to P3 from P7.  On 26 August 2010, a medical board upgraded him to P2 L2 (fully fit).  It recorded that the claimant had made a marked improvement and had passed his PFA three or four weeks earlier.  On examination it found that the entry and exit wounds were well healed with some loss of muscle bulk but “Otherwise nil of significance”.  Shortly afterwards, the claimant injured his ankle playing football, but it has not been suggested that that is relevant to the present case.

 

7. Notwithstanding his upgrading, the claimant saw a medical officer on 1 October 2010 “because he is concerned about his leg and his future in the military”.  He was referred for a surgical opinion and an exercise programme was also arranged.  On 27 October 2010, the consultant orthopaedic surgeon to whom he had been referred wrote to the referring doctor stating that he understood that “the fracture has healed and he is able to complete a BFT and a CFT”.  He saw the claimant on 2 November 2010.  He recorded that the claimant had “anterior knee pain following retrograde femoral nail” and recommended “removal of nail and locking screws”, adding that “Although we cannot guarantee it the pain may improve from removing the nail.”  An operation to remove the nail was duly carried out on 4 January 2011.  On 21 March 2011, it was recorded that the claimant had passed the required criteria for discharge from rehabilitation therapy.

 

8. Meanwhile, Lord Boyce had reviewed the Armed Forces Compensation Scheme.  The review resulted in the Armed Forces Compensation Scheme 2011 (SI 2011/517).  The tariff awards were increased and the method of dealing with multiple injuries was altered.  Tariff 12 awards were increased to £10,000 and a second injury was compensated at 80% of the tariff level in circumstances such as those of this claimant (see article 22).  The supplementary award to the claimant remained at £1,000 and so the total award held to be payable was £19,000.  Notice of the increase of £6,202.50 was initially sent to an old address of the claimant’s, but it was reissued on 11 July 2011 to the correct address and a response to the claimant’s appeal was then sent to the First-tier Tribunal.  (The First-tier Tribunal had previously been told about the appeal and had agreed to it being stayed so that the implications of the new Scheme could be considered.)  The question whether the Secretary of State was right to vary the maintained award in the light of the transitional provisions in the new Scheme has not been raised on this appeal.

 

9. The Secretary of State’s response drew attention to the precise terms of the items of the Schedule on the basis of which the award had been made and also drew attention to the terms of the items that he considered most relevant for awards on tariff level 11.  The items are differently numbered in Schedule 3 to the 2011 Scheme and it will probably be more useful if I refer to the new numbering even if the tables in the old scheme technically still apply to the claimant’s case.  Under the 2011 Scheme, the competing items are as follows –

 

Table 2 - Injury, Wounds and Scarring

item	level	descriptor
31	11	High velocity gun shot wound, deep shrapnel fragmentation or other penetrating injury (or all or any combination of these) with clinically significant damage to soft tissue structures of the head and neck, torso or limb, which have required, or are expected to require, operative treatment with residual permanent significant functional limitation or restriction.
41	12	High velocity gun shot wound, deep shrapnel fragmentation or one or more puncture wounds (or all or any combination of these injuries) to the head and neck, torso or limb which have required, or are expected to require, operative treatment with substantial functional recovery.

 

Table 8-Fractures and dislocations

item	level	descriptor
14	11	Fracture of one femur, tibia, humerus, radius or ulna, with complications, which has caused, or is expected to cause, significant functional limitation or restriction beyond 52 weeks.
18	12	Fracture of one femur, tibia, humerus, radius or ulna, which has caused, or is expected to cause, significant functional limitation or restriction beyond 26 weeks.

 

10. In relation to the gun shot wound, it was the Secretary of State’s case that there had been a “substantial functional recovery” and that that was why item 41 of Table 2 was more appropriate than item 31.  There is no reference in the descriptor to the length of time within which there must be a substantial functional recovery but it is to be noted that a number of the other items in Table 2 expressly contemplate substantial recovery being after more than 26 weeks and there seems no reason to imply any limitation into the descriptor for item 41. Recovery had been at best only an expectation when the award was first made and even when it was maintained, but the Secretary of State clearly considered that there had been a substantial functional recovery by the time the response to the appeal was submitted to the First-tier Tribunal. 

 

11. In relation to the fracture of the femur, the Secretary of State submitted that item 18 of Table 8 was more appropriate than item 14 because there had not been any complications.   He referred to a note to Table 2 which, in the 2011 Scheme, provides –

 

“When applied to a limb injury the expression ‘with complications’ means that the injury is complicated by at least one of septicaemia, osteomyelitis, clinically significant vascular or neurological injury, avascular necrosis, gross shortening of the limb, mal-united or non-united fracture, or the fact that the claimant has required, or is expected to require, a bone graft.”

 

The note was in very slightly different terms in the 2005 Scheme, as amended, but the differences are not material to this case.  It is odd that the meaning of the expression “with complications” in Table 8 should be determined by a note to Table 2 that is not repeated as a note to Table 8, but it would be even odder if the expression were to mean different things in the two tables.  The Secretary of State submitted –

 

“It is accepted that [the claimant] has a 1.8 cm leg length discrepancy but this is not considered to be a ‘gross shortening of the limb’ as defined in the scheme rules.”

 

12. When the case first came before the First-tier Tribunal on 13 December 2011, the claimant did not appear and the hearing was adjourned.  It appears that the claimant had moved and not received the notice of hearing.  The First-tier Tribunal took the opportunity to ask the Secretary of State to provide an up-to-date PULHHEEMS assessment.  The Secretary of State informed it that the most recent assessment was the one conducted on 26 August 2010.

 

13. The claimant was contacted and appeared at the next hearing before the First-tier Tribunal on 24 January 2012.  He said that he still suffered from a great deal of pain.  It appears that he also said that he had not in fact passed a BFT or CFT and at least something was said by him about bribing a physical training instructor who was a friend.  The service member of the First-tier Tribunal recorded part of his evidence as –

 

“Office bound.  PTI fiddled the BFT/CFT pass in Xchange for bottle of vodka.”

 

The last part of the service member’s note reads –

 

“SPVA

Upgraded because of falsifying BFT/CFT record.

Told DMRC he could run 6 – 8 miles when he couldn’t.”

 

That is presumably a note of the presenting officer’s submission.  The Secretary of State’s Reasons for Appealing to the Upper Tribunal state that the submission was that, “as the burden of proof was on the Appellant, and as his evidence to the First-tier Tribunal was that he had given false answers to doctors and bribed a PTI to falsify the results of his BFT and CFT, his evidence could not be relied upon”.  No record of what the claimant said about bribery and no record of the presenting officer’s submission appears in the medical member’s notes and, if the judge made a note of evidence and submissions at all, it has not been kept with the First-tier Tribunal’s file.

 

The First-tier Tribunal’s decision

 

14. Despite the Secretary of State’s submission, the First-tier Tribunal accepted the claimant’s evidence and allowed his appeal to at least some extent.  Its reasoning is set out within its “findings”.

 

“(a) The appellant accidentally shot himself in his left thigh whilst on duty in Afghanistan on 28^th April 2009.  He sustained a comminuted fracture of the left femur and having been treated locally he was transferred to Hospital in Birmingham.

(b) In the U.K. further surgery was carried out and a nail was inserted in the femur.  In May a skin graft was carried out.  The appellant was discharged on crutches.  He underwent physiotherapy.  He was finally discharged from Headley Court on 13/7/10.  The appellant continued to experience significant thigh pain.  The nail was removed from the femur on 4/1/11.

(c) The appellant has given us detailed evidence of the progress of the injury over the last year or so.  He has told us, and we accept, that he has deceived the service medical authorities as to his capabilities and he disguised the pain and suffering in order to resume ‘normal’ soldier’s duties.  He was desperate to be seen as a lot fitter than he was.

(d) The appellant has told us that the injury site continues to be severely painful.  He has suffered permanent chronic pain ever since this injury.  It shows no sign of abating.  The appellant’s functioning is significantly limited.  He has difficulty around his home; he struggles up and down stairs and his wife has to support him.  He sometimes can hardly get out of bed after a ‘bad’ night.  He wears a knee brace.  He cannot play sport.  He walks with a pronounced limp.  This is on account of his shortened leg.  (It is shortened by about 2cms.)  This state of affairs can only be permanent.  He told us that over last 12 months he has had about 30 days sick leave.  He is on pain killing medication.

(e) As to the fracture, this was a very serious injury, it caused significant functional limitation or restriction well beyond 26 weeks.  However, we find that it was not accompanied by complications as we understand that word within the meaning of the Scheme.  Accordingly, the appellant’s submission that table 8 Item 14 applies cannot be accepted.  No other descriptor is appropriate for the fracture injury.

(f) As to the gunshot wound, this injury involved clinically significant damage to soft tissue structure which required operative treatment.  Furthermore, there followed from this injury functional limitation which is both permanent and significant.

(g) For these reasons we find that the following descriptors apply:

 

Fracture left femur : Table 8 Item 18 (ie as before), and

Gun Shot Wound Left Thigh : Table 2 Item 31 (ie Tariff 11).”

 

The grounds of appeal and further evidence

 

15. The Secretary of State applied to the First-tier Tribunal for permission to appeal on the ground that the First-tier Tribunal had reached a perverse conclusion or had failed to give reasons for accepting the claimant’s evidence and that there was new evidence to demonstrate that the claimant could not have been telling the truth.  Save insofar as it was stated in the application that, at the time of the hearing, the claimant had been preparing to be deployed to Afghanistan again, where he had been carrying out full duties from 4 March 2012, the new evidence had not been gathered at the time of that application.  The Secretary of State indicated that he wished to obtain further evidence because he had not had notice that the Appellant would maintain that the existing evidence of his fitness was the result of deception and so there had been no evidence before the First-tier Tribunal “as to the nature of the BFT and CFT, the manner in which they are conducted, or the Appellant’s current deployment”.  It was stated that the Secretary of State “does not believe that it would be possible to falsify the results of the BFT and CFT as described by the Appellant, or that he could deceive his commanding and fellow officers [sic] as to his level of fitness in this way”.

 

16. The First-tier Tribunal granted permission to appeal because it considered it to be arguable that it had given “insufficient reasons for accepting evidence that was inherently implausible” but it sensibly did not formally limit the grant of permission to that ground.  The Secretary of State now appeals on all three grounds and has provided some further evidence. 

 

17. The evidence of the nature of BFTs and CFTs appears in counsel’s “Reasons for Appealing” in which it is stated –

 

“10. In January 2011, [the claimant] had further surgery to remove the metalwork from his femur.  On referral for this surgery, it was noted that he had passed both Battle Fitness and Combat Fitness Tests (BFT and CFT).  Although the precise details may be varied to suit the needs of a particular unit, in general terms these involve a squad and individual run, sit ups and press ups (for the BFT) and an 8 mile run in full combat gear, to be completed in under 2 hours (for the CFT).”

 

I have no reason to doubt the accuracy of that statement, save that there are no references elsewhere in the documents to a “Battle Fitness Test” whereas there are a few references to a “Basic Fitness Test”, which may therefore be the normal meaning of “BFT”.  This is arguably the sort of knowledge one might expect the First-tier Tribunal to have without the need for evidence in any particular case and so presenting the information to the Upper Tribunal as part of counsel’s argument is perfectly reasonable.

 

18. More contentious are the records of two interviews conducted by the Royal Military Police.  It appears that the Service Personnel and Veterans Agency reported to the Royal Military Police what the claimant had said at the hearing before the First-tier Tribunal about having in effect bribed a physical training instructor to pass him as fit to the relevant standard.  The Royal Military Police interviewed the claimant under caution.  He denied bribing a physical training instructor but said that he had told the First-tier Tribunal that, as a joke, a physical training instructor had said: “if you give me a bottle of vodka, I’ll pass you”.  He said that he had recounted this to the First-tier Tribunal to get them off the subject of his sex life and they “totally took it the wrong way”.  There was also some discussion in the interview as to what fitness tests the claimant had ever done, to which he said he had done a PFA and, at some unspecified time, an OFT.  He could not remember doing a PFT or CFT prior to deployment.  It was recorded that–

 

“[The claimant} then stated that after he said that at the tribunal they looked shocked and he explained to them that because the PTI was posted out it never came to that, again he said this as a joke.  {The claimant] said that there was an ex army officer at the tribunal and [the claimant] had said to him, “You know what squaddies are like these days”, and that he just wanted to be on normal PT again doing his job and not downgraded.”

 

He refused to disclose the physical training instructor’s name.  It was recorded that –

 

“[The claimant] then said that the comment made by the PTI was not during an actual lesson and that he was on rehabilitation at the time.  He confirmed that he had done two PFTs to get off rehab and that the comment was made as the PTI was leaving the unit on the day he was posted from the unit.  He also stated that the official fitness tests he would have had to do for deployment including the PFTs and CFT he hadn’t actually done.”

 

After he again refused to disclose the name, it was recorded –

 

“[The claimant] then stated that when he spoke to the tribunal in January there might have been some wires crossed somewhere as he is was [sic] still having problems with his leg.  He still wants to stay in the army and is scared because of his injury he will be told to leave the army.  [The claimant] then became distressed and [a service policeman] informed him that he cannot make him disclose the name of the PTI.”

 

After some further conversation, the service policemen summarised what had been said, including the following statement: “He can’t remember which OFT he participated in however even though he needed to complete two PFTs to get upgraded he can only remember doing one.” 

 

19. Notwithstanding the claimant’s refusal to name the physical training instructor involved, the Royal Military Police found the one they thought was relevant and interviewed him under caution too, in the presence of a legal adviser.  He was interviewed by a different military policeman.  He was asked whether he had received a bottle of vodka from the claimant in order to pass him on a fitness test on 28 February 2011, which he denied.  The claimant’s account in interview – that the physical training instructor had made the suggestion, albeit as a joke – was never put to him.  Indeed, it appears that he was told that the claimant had claimed he had given him a bottle of vodka in order to pass, which is presumably what had originally been reported to the police.  The physical training instructor did, however, confirm that he had been in the same unit as the claimant when the latter sustained his injury and so knew him well and that he had assessed the claimant during a “basic fitness test”, and had passed him on 28 March 2011.  Depending on which of the dates is correct, the relevant basic fitness test was either just before, or just after, the claimant was discharged from rehabilitation following the operation in January 2011.

 

20. The Secretary of State seeks an oral hearing unless the Upper Tribunal is satisfied that the First-tier Tribunal’s reasoning is inadequate and is prepared to remit the case to the First-tier Tribunal on that ground.  The claimant does not seek a hearing.  I am satisfied that the First-tier Tribunal’s reasoning is inadequate and so I need not hold a hearing.  I will therefore limit what I say on the law relating to the other grounds.  On the other hand, all three grounds are obviously related to each other and, in particular, the first two are.  There would be no point in remitting the case if there was only one decision that the First-tier Tribunal could properly have made on the evidence before it.

 

Perversity and the adequacy of the First-tier Tribunal’s reasons

 

21. The first ground of appeal is expressed as follows –

 

“19. The Appellant’s own case was that he had engaged in serious deception, not only of medical staff supervising his rehabilitation, but also his commanding officers, in that he had procured the falsifying of the BFT and CFT results, and had represented himself as fit for duty, and deployment in battle, when he was not so fit.

 

20. Even leaving aside the inherent improbability of [the claimant] being able to successfully deceive so many people as to the level of his fitness, his evidence raised enormous questions as to his own reliability as a witness.  The BFT and CFT are part of the military Annual Training Tests (MATTs), which are mandatory for all Army personnel.  Falsification of the results would be a serious issue, for obvious reasons.  [The claimant] was effectively telling the FTT that he was prepared to lie on matters of great importance.

 

21. As Denning LJ observed in Ladd v Marshall [1954] 1 WLR 1489 (at 1491), “A confessed liar cannot usually be accepted as being credible.”

 

22. The burden of proof was on [the claimant] to show that the Secretary of State’s decision was wrong.  No rational tribunal could have concluded that his evidence should be accepted in these circumstances as satisfying that burden.”

 

22. The Secretary of State has elaborated upon that argument in a further submission and has decided that perhaps the inherent improbability of the claimant being able to deceive so many people should not be left on one side.  He submits –

 

“The FtT therefore had to consider whether it was more likely than not that [the claimant] had deceived every single member of the service medical authorities who had assessed him, and had successfully bribed a PTI to certify that he passed the BFT and CFT.  It is clearly arguable that no rational tribunal could accept something so implausible to be the case, based only on the word of someone who had, in saying it, admitted that he must have been lying over a sustained period of time and about important matters that would affect his fitness for deployment to Afghanistan.”

 

23. The Secretary of State is sensible to rely on the inherent improbability of the evidence because the mere fact that the claimant has admitted to lying or even, if he did, admitted to bribery cannot possibly be a reason for saying that his evidence could not be accepted on any matter.  Denning LJ’s observation in Ladd v Marshall was made in the context of an application to adduce evidence on an appeal to the Court of Appeal by recalling a witness who had said she had lied at the original trial and where, therefore, the evidence could not be adduced unless it was “such as is presumably to be believed”.  The Court was not prepared to accept that there was such a presumption in the case of that witness’ evidence.  However, there is no general rule that a person who has lied is not a competent witness whose evidence may be accepted to the extent that the court or tribunal is prepared to believe it.  Obviously, admitted or proven lying may be a reason for scepticism about other evidence, but it is not necessarily a reason for rejecting all other evidence. 

 

24. The issue then is whether it was so inherently improbable that the claimant’s evidence was true that the First-tier Tribunal could not, as a matter of law, have accepted sufficient of it to justify allowing his appeal.  The Secretary of State undoubtedly had a fairly strong case, but I am not satisfied that it was watertight and there seem to me to be a number of unanswered questions.  First, there is the question as to what fitness tests the claimant passed, or was recorded as having passed.  I suspect he would have had to pass a basic fitness test before being upgraded to P2 L2 in August 2010 and again when he was discharged from rehabilitation therapy in March 2011 but it is not clear to me – admittedly a layman as regards these matters – that he was required to undergo a combat fitness test on either occasion or at any later date before the hearing before the First-tier Tribunal.  It is true that the surgeon understood him to be able to pass a combat fitness test in October 2010 but on what basis he held that belief is not clear.  It seems that the claimant told the First-tier Tribunal that he had falsely told Headley Court on admission that he had run 6 - 8 miles.  Is it possible that that led, either actually or metaphorically, to the ticking of a box in his records to the effect that he had completed a combat fitness test when he had not actually done so?  Should the PFA carried out three or four weeks before the upgrading in August 2010 have included a combat fitness test and, if so, did the claimant actually undergo and pass such a test?  Moreover, whatever tests he had passed, or had been recorded as having passed, before being upgraded in August 2010, the undisputed fact is that the claimant was complaining to a medical officer about pain in his leg in October 2010.  He was not formally downgraded at that time, or even after the operation in January 2011, which is presumably why there was no medical board in 2011.  Therefore, despite his grading, there was evidence of some pain at the end of 2010 and the beginning of 2011.  The main issue for the First-tier Tribunal was whether the pain continued, which in turn raised the question whether the claimed pain was consistent with satisfaction of the fitness test in February or March 2011 and whether the fitness test had actually been passed.  There was also the question whether his pain was inconsistent with his general duties, but the claimant said he took painkillers and he also said he had about 30 days sick leave which suggests that the pain was not consistent with his duties on those days and also suggests that on some days the pain was more troublesome than on others.  Indeed, the medical member recorded the claimant having expressly said that he had good days and bad days.  If, as he appears also to have said, he generally worked in an office, there is a question as to what extent, if at all, his unit was misled.  Presumably it knew when he was on sick leave.  To what extent might he have been able to avoid too much physical training and fitness tests?  The degree of disablement implied by subparagraph (d) of the First-tier Tribunal’s findings may be difficult to reconcile with military duties but reconciliation is not necessarily impossible if the disablement was intermittent and the duties were, at the material time, mainly clerical.  Looking at all the evidence, I am not persuaded that the First-tier Tribunal was not entitled to decide the case in the claimant’s favour.

 

25. On the other hand, the unanswered questions are highly relevant to the second ground of appeal, which asks whether the reasoning of the First-tier Tribunal is inadequate.  To a substantial extent, the reasons required from a tribunal depend on the way the case has been argued.  The reasons ought to address the salient points raised by the parties, as well as any obvious points not raised by them.  In this case, the Secretary of State had relied on the documentary evidence being taken at face value, including its recording of the results of fitness tests, and the claimant argued that it did not represent the whole truth because the authorities had been deceived, to which the Secretary of State clearly replied by arguing to the effect that the claimant’s account was incredible or, at least, unlikely.  The First-tier Tribunal has asserted a conclusion but has not explained how it reached it, beyond saying that it believed the claimant and accepted that he had deceived the service medical authorities.  It has not made a finding as to how far the deception must have gone.  Thus, for instance, it has not referred to the alleged bribery of a physical training instructor and has consequently not made any finding as to whether there had been bribery and, if so, which test results were invalidated by it.  Nor has it explained what other fitness tests the claimant might have undergone and what significance it attributed to the results of those tests.  It also has not explained how its findings as to the claimant’s disability are consistent with the claimant  having continued in service without being downgraded, which may not have been a point expressly argued by the presenting officer but does seem a fairly obvious issue.  Answering some of these questions might have required closer questioning of the claimant.

 

26. There is also a potential inconsistency that is not adequately explained between the First-tier Tribunal’s conclusion that the claimant’s shortened leg was at least largely responsible for his “significant functional limitation or restriction” being permanent for the purposes of item 31 of Table 2 and its apparent conclusion that the shortening of the leg was not “gross” for the purpose of deciding whether there had been “complications” bringing the fracture within item 14 of Table 8.  At first sight one might expect that a shortening sufficient to give rise to a permanent significant functional limitation or restriction might be considered gross or that a shortening insufficient to be considered gross would not give rise to such a permanent limitation or restriction.  Moreover, it is not entirely clear how much of the disability recorded in subparagraph (d) of the findings was attributed by the First-tier Tribunal to the shortening of the leg.  To the extent that the First-tier Tribunal may have found that disablement was not the result of the shortening of the leg, it has not given a reason for finding that “this state of affairs can only be permanent”.  (Given that item 31 of Table 2 appears to be concerned with damage to soft tissue structures, whereas items 14 and 18 of Table 8 are concerned with fractures, there may conceivably also be a question as to whether the shortening of the leg, which the First-tier Tribunal unsurprisingly considered was likely to be permanent, is relevant to item 31 of Table 2 at all,)

 

27. For these reasons, I am satisfied that the First-tier Tribunal’s reasoning was inadequate.

 

The relevance of the further evidence

 

28. In the third ground of appeal, the Secretary of Sate relies heavily on Ladd v Marshall [1954] 1 WLR 1489 and argues that the new evidence should be admitted because it satisfies the criteria set out in that decision – (1) the evidence could not have been obtained with reasonable diligence for use before the First-tier Tribunal, (2) the further evidence is such that, if admitted, it would probably have an important influence on the result of the case, even if it is not decisive, and (3) the evidence is such as is presumably to be believed.  Since the point has not been fully argued before me, I will not reach a definite conclusion on this ground of appeal. However, it is worth pointing out that the relevance of Ladd v Marshall to public law cases where an appeal is limited to points of law was expressly considered in E v Secretary of State for the Home Department [2004] EWCA Civ 49; [2004] QB 1044.  Evidence may well be admitted on such an appeal in order to prove an error of law and “objective and uncontentious” evidence may be admitted by the Upper Tribunal for the purpose of proving that the First-tier Tribunal has made a mistake of fact that has resulted in unfairness, where the party adducing the evidence has not been responsible for the mistake, because in those circumstances making a mistake of fact may amount to an error of law. 

 

29. However, I still have some doubt as to whether those criteria are really met in this case.  This is largely because I am not convinced that there was any procedural defect (other then the inadequacy of the reasoning) or unfairness.  I can well understand that the presenting officer may have been taken by surprise at the line taken by the claimant in stating that he had actively misled the authorities as to his fitness, but he could have asked for an adjournment and the Secretary of State has not argued that one should have been offered notwithstanding the lack of an application (on which issue, of course, the evidence he would have obtained had there been an adjournment might have been relevant).  Moreover, if the presenting officer considered that the First-tier Tribunal was not probing the claimant’s evidence sufficiently, he could have asked his own questions. 

 

30. As I have said, I need not reach a conclusion on these matters, because this case must in any event be considered afresh by the First-tier Tribunal and the new evidence will obviously be available to the First-tier Tribunal when that happens. 

 

Matters relevant on appeal to the First-tier Tribunal

 

31. The new evidence will, of course, only be relevant in so far as it relates to circumstances obtaining at the time of the Secretary of State’s decision on 24 June 2010.  That is the effect of section 5B(b) of the Pensions Appeal Tribunals Act 1943, which may have a wider implication in this case.  It is a provision liable to create difficulties where a decision involves an element of prediction, as was the case here because the Secretary of State’s decision was made while the claimant was still graded P7 L7.  The Secretary of State obviously took the view that it was probable that the claimant would recover from the effects of the gun shot wound to the extent that there would be no permanent significant functional limitation or restriction.  I draw attention to what was said by the Social Security Commissioner, now Judge Jacobs, in R(DLA) 3/01 about predictions in relation to the almost identical provision in section 12(8)(b) of the Social Security Act 1998.

 

“59. In the case of a benefit in which a prediction has to made of future disablement, it is always relevant to know whether the claimant’s disablement at the date of decision was static or changing. The classification of the disablement is a circumstance obtaining at that time. It will be relevant both to the six months qualifying period and to the period of an award. I give directions on changing disablement in the context of a claimant who is in a period of post-operative recovery, as that is the position in this case, but the principles are applicable to all cases of changing disablement.

 

60. An appeal tribunal is entitled, and required, to take account of the fact that at the time of the decision a claimant is in a period of post-operative recovery. That is a circumstance obtaining at that time. If a rule requires a prediction of future events but the actual events are known by the time of a hearing, a court would take account of what had actually occurred rather than undertake an artificial exercise of prediction: see for a recent discussion of this principle the decision of the Court of Appeal in Charles v. Hugh James Jones and Jenkins (a firm) [2000] 1 All England Law Reports 289 at pages 299 to 301. However, section 12(8)(b) prevents appeal tribunals from applying this principle.

 

61. In some cases, a claimant who is recovering may suffer a set back, slowing down the rate of recovery. Take the example given in paragraph 44 of a claimant recovering from heart surgery who develops pneumonia after the date of decision. That is clearly a fresh circumstance, which an appeal tribunal would have to leave out of account. In that case section 12(8)(b) would operate to the claimant’s disadvantage. However, it can also work to the claimant’s advantage on an appeal. If the period of a claimant’s recovery is dramatically reduced by the use of a new drug, this would also be a fresh circumstance which the appeal tribunal would have to leave out of account.

 

62. In other cases, the fact that a claimant’s recovery has not progressed as quickly as expected does not necessarily indicate that a fresh circumstance has occurred. This may do no more than reflect the natural vagaries of an uncertain recovery process that cannot be predicted accurately or with confidence. In this case, the actual rate of recovery is not a fresh circumstance that the appeal tribunal must ignore.

 

63. There is no clear test that will allow appeal tribunals to distinguish between cases in which there has been a set back to recovery and those where the evidence only shows that the rate of recovery is inherently uncertainty. An appeal tribunal must use common sense to draw the distinction between these cases.

 

64. It must ask: how long was the claimant likely to satisfy the conditions of entitlement for a disability living allowance, disregarding fresh circumstances?  The answer will depend on the tribunal’s assessment of the admissible evidence. The appeal tribunal may, and must, take account of any evidence about the claimant’s likely disablement beyond the date of decision that can sensibly be related to the circumstances obtaining at that date. The conclusion will be a finding of fact on probability which the appeal tribunal may substitute for the finding of fact on that issue made by the officer acting on behalf of the Secretary of State.

 

65. The claimant’s own evidence is admissible, but however credible it may be, it is likely to be of limited value. It will be based on the claimant’s personal feelings and the claimant will not have a yardstick against which to judge the rate of recovery.

 

66. If there is in evidence a prognosis of the likely rate of recovery, the tribunal must weigh that evidence in the light of these considerations, among others. (i) A prognosis is no more than an opinion. (ii) The factors that affect the rate of recovery from an operation are so many, so variable and so dependent on the individual patient that it is impossible for a prognosis to take into account all the variables in an individual case, let alone to reach a firm conclusion. (iii) Some of the variables will be specific to the claimant. Others will be general. It is unlikely that the prognosis will record those that were taken into consideration. This lack of transparency prevents the reasoning behind the prognosis from being examined and, therefore, reduces the weight that can be given to it.

 

67. It will always be relevant to consider whether there is an identifiable occurrence that has caused a change in the rate of recovery. That occurrence may be, and perhaps is likely to be, a fresh circumstance. However, some occurrences may be sufficiently predictable as a feature of the recovery process to be regarded as but a part of it.

 

68. The length of the recovery may be so abnormal as itself to indicate that some unidentified fresh circumstance must have occurred. However, if the actual recovery period is not abnormal, there is no reason why the tribunal should not have regard to that, so long as the tribunal asks itself the correct question (see para. 64) and bases its answer on admissible evidence.

 

69. I trust that this is a sensible approach that makes sections 8(2) and 12(8)(b) workable by appeal tribunals and, while faithful to the proper interpretation of the legislation, does not impose unattainable restrictions on claimants who want to challenge a decision on appeal.”

 

The First-tier Tribunal will need to bear that guidance in mind when determining the present case.

 

 

 

Mark Rowland

16 January 2014