On 23 February 2024, the Court of Appeal handed down Judgment in Pearson v The Secretary of State for Defence [2024] EWCA Civ 150 (‘Pearson’). The unanimous decision reverses the decisions of both the First Tier Tribunal (‘the FtT’) and the Upper Tribunal (‘the UT’)1, and provides important guidance on the correct approach to tariff placement. In addition, the Judgment provides clarity as to other ancillary points which will be of note to practitioners in this jurisdiction.
The Appellant is a former Navy Surgeon with an impressive work history. For many years he practised in the public (civilian and military) and private sector. In addition, he engaged in research, sat on medical committees at senior levels, worked as a Defence Consultant Advisor and trained Consultant ENT Surgeons in Service. In essence, the work was demanding and the responsibilities extensive.
Symptoms of work-related stress began in 2006, and a diagnosis of a qualifying mental disorder was made in 2009. The workload was reduced over time and in 2017, the Appellant was medically discharged from service.
Notwithstanding this reduction and eventual cessation in work, the Appellant continued to sit as a fee-paid medical member in Tribunal, typically for one day a week / 48 days each year. There were opportunities to sit more frequently, but he was not able to do so because of his mental disorder. From the summer of 2018, he made various adjustments to be able to continue this work.
Eligibility was admitted. At FtT the only issue was tariff placement on Table 3. The Appellant was in receipt of an item two ‘moderate’ award, and he sought an item one ‘severe’ placement.
The FtT found that the distinction between item one and item two was the insertion and absence of the word ‘regular’, and in heavy reliance upon that, and the fact that since 2017 the Appellant had worked in a regular fashion for the Tribunal as a fee paid medical member, it was found that the mental disorder was best described by item two.
The UT upheld the FtT decision and in doing so found that the FtT was not only entitled but ‘compelled’’ to come to a finding that item two was the right descriptor, because once it had been identified that the work was regular and less demanding, then it was ‘the end of the matter.’ In effect, the regularity of less demanding work created a bar to any further consideration as to whether an item one award was justified.
In finding that both specialist tribunals had erred, Lord Justice Holroyde stated in paragraphs 46-48 that inter alia:
‘Given how closely the terms of footnotes (a) and (b) coincide, there is clearly an overlap between them, and they are not mutually exclusive. For that reason, it is in my view inappropriate to adopt a rigid approach to the footnotes, and to view them as definitive of all cases which can come within Item one and all cases which can come within Item two. Such an approach would inevitably lead to arbitrary and irrational results. It would, for example, assess a claimant, whose mental disorder had reduced him or her from a high-achieving role to a capacity for only a low level of menial work, as suffering no more than moderate functional limitation or restriction, merely because the menial work could fairly be described as “regular”.
‘The footnotes should in my view be read as indicative of circumstances which would place a claimant in a particular category, rather than as definitive statements of circumstances which inevitably place a claimant into a particular category’.
‘I am, however, unable to agree with the UT’s conclusion that the focus must solely be on whether a claimant can be said to be able to work “regularly”’
The Court of Appeal determined the matter by considering the right (and wrong) approach to interpretation, as opposed to by a granular analysis of the meaning of the words in the AFCS. In doing so, invaluable instruction has been provided that is arguably applicable to other Tables2. especially Tables 4 and 6, where the terms of the footnotes are almost identical to Table 3.
The Judgment also raises other important points beyond the approach to tariff placement, to which this article now turns:
The Secretary of State, via Veterans UK routinely refer to IMEG reports in decisions, as such they feature in the FtT bundles and are commented upon at Final Hearings. On occasion IMEG is utilised as a purported aid in the interpretation of the scheme. It is of note, that in Pearson, it was the Respondent who argued that IMEG is inadmissible for this purpose, and the Court of Appeal agreed. It was stated that IMEG ‘is irrelevant and inadmissible: even if it were permissible to consider such a report as an aid to statutory interpretation, which I doubt, the drawing of a contrast between what the IMEG recommended, and what the Order contains, cannot assist the court.’
It is likely that IMEG will continue to have a role to play in the determination of matters. However, that role should now be strictly confined to the provision of contextual medical information, as opposed to an aid to statutory interpretation.
In this matter, the FtT considered that the relevant timeframe started at the date of discharge. The Court of Appeal found that this was wrong in law, and indeed the ‘over time’ question posed by the footnote to item one required consideration of the matter from the date of onset onwards. In the experience of this writer, the approach from FtT in Pearson is an anomaly. The FtT ordinarily consider the matter from the date of onset.
The more significant issue that arises in practice is the end date of the relevant timeframe. Here there is a tension between the terms of the AFCS and the custom in the Chamber.
Article 5B(b) instructs that the tribunal ‘shall not take into account any circumstances not obtaining at the time when the decision appealed against was made.’
However, the FtT routinely permits evidence which postdates the decision, including medical reports and witness statements. The Secretary of State will then provide additional comments to the updated evidence that can postdates the decision by many months. These so-called ‘Further Comments’ are not taken as the ‘Decision’ or the ‘Grounds’ in the terms of reference but are utilised to form additional grounds for the Secretary of State’s position, upon consideration of the updated evidence. Further, the hearing often involves an in-depth enquiry into the Appellant as he or she is at that date as well as at the date of the decision. The Court of Appeal do not give a conclusive answer to this issue, perhaps because in Pearson the situation as to regularity from date of decision onwards remained unchanged.
It is of note that when this matter was in the Upper Tribunal, Judge Naqib found at paragraph 44 that ‘the FtT can and should take account of all evidence from the date of onset of the illness to the date of the Secretary of State’s decision and indeed, in some cases, evidence which postdates the Secretary of State’s decision if such evidence assists in determining the nature and gravity of the injury as at the date of the Secretary of State’s decision provided the evidence is relevant.’
In considering the end point of the relevant timeframe, it is significant that 1) the exercise by the FtT is not judicial review, but rather a fresh determination of the case 2) the Court of Appeal emphasised the need for an assessment of all the relevant evidence 3) this wider evidential approach is aligned with the inquisitorial nature of the FtT 4) it can be argued that the ‘circumstance pertaining at the time’ would, in a psychiatric injury case be the Mental Disorder, additional evidence is simply how that circumstance has manifested itself over time in a foreseeable trajectory and 5) this custom facilitates the purpose of the scheme (to fairly compensate injured service personnel) and reflects the fact that it is funded by the public purse.
It is therefore anticipated that FtT will continue to consider evidence that post-dates the date of the decision, especially if it can be said that the same is relevant in determining the trajectory which was there to be found at the time of the Decision.
Finally, on occasion the FtT raise the question as to whether the footnotes to Table 3 could be read to place an onus on the Appellant to demonstrate that he was unable to undertake such work at the time of onset. It has always been submitted by this writer that this would be a misreading of the footnote, and this has been accepted. Happily, and perhaps inadvertently, the Court of Appeal have provided a conclusive answer to this question at paragraph 49, by the words ‘held at the time’.
Provided by Jasmine Skander. Click here to view the judgment.
