JD v Secretary of State for Defence (WP)

A tribunal must give adequate reasons for its findings on a material issue. Where evidence bears directly on the timing or cause of a claimed condition, the reasons must show whether the evidence was considered and, if rejected, why.

A First-tier Tribunal may decide by majority under article 8 of the First-tier Tribunal and Upper Tribunal (Composition of Tribunal) Order 2008. It need not disclose whether its decision was unanimous. However, if it tells the parties that the decision was by majority, a requested statement of reasons should record the reasons for dissent. Whether failure to do so is itself an error of law was left open.

Remittal depends on the disputed facts and convenience. It will usually be appropriate where fairness requires an oral hearing or the First-tier Tribunal’s expertise is relevant.

The claimant, a former Royal Navy service member, claimed disablement benefit under the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 2006. She alleged depression, anxiety and distress caused by her service. The Secretary of State rejected the claim and the First-tier Tribunal dismissed her appeal.

The First-tier Tribunal accepted that intrusive questioning about her sexuality during service had distressed her. It found, however, that her mental illness arose years later and was unrelated to service. On appeal, the claimant relied on evidence that her depression dated from 1993 and on a panel member’s note suggesting that the purportedly unanimous decision had in fact been made by a majority.

The central issues were whether the tribunal had adequately addressed the material evidence, what guidance applied to majority decisions, and whether the case should be remitted.

1. Appeal allowed. The First-tier Tribunal’s decision was set aside and the appeal remitted to a differently constituted First-tier Tribunal.

2. The First-tier Tribunal’s reasons were inadequate, or disclosed a failure to consider all material evidence. The claimant’s case included evidence of treatment for depression during or shortly after service, and an explanation for the absence of accessible contemporaneous records. That evidence was material to the central issue of causation and timing. The tribunal neither mentioned it nor explained whether and why it had rejected it. The claimant was entitled to reasons showing how the tribunal had dealt with that evidence.

3. Article 8 of the First-tier Tribunal and Upper Tribunal (Composition of Tribunal) Order 2008 permits a majority decision, which is the decision of the tribunal. A unanimous decision remains desirable, but unanimity is not required where a member cannot honestly concur with the majority.

4. Following and approving the guidance in Secretary of State for Work and Pensions v SS (DLA) [2010] UKUT 384 (AAC), the tribunal had no general legal duty to tell parties whether a decision was unanimous. If it chose to say that a decision was by majority, however, its reasons should include the dissenting member’s reasons. Here the parties were wrongly told that the decision was unanimous, although the panel note indicated a majority decision. The tribunal should have corrected that error and supplied the dissenting reasons. The Upper Tribunal left open whether that omission, absent a legal duty to disclose the majority, was independently a material error of law.

5. Remittal was appropriate. Fact-finding alone does not invariably require remittal, but fairness might require an oral hearing and the disputed facts were ones on which the First-tier Tribunal’s expertise was relevant. Both considerations applied.

• Upper Tribunal (Administrative Appeals Chamber): Allowed the claimant’s appeal, set aside the First-tier Tribunal’s decision dated 12 June 2013, and remitted the case to a differently constituted panel.
• First-tier Tribunal: Dismissed the claimant’s appeal against the Secretary of State’s rejection of her service-pension claim.