DN v The Secretary of State for Defence

In an appeal under section 5A of the Pensions Appeal Tribunals Act 1943, the stated ground of the Secretary of State’s specified decision defines the appeal’s scope. A tribunal deciding whether service caused an injury need not decide the injury’s extent or the appropriate tariff descriptor, which may remain for a later award decision.

Earlier tribunal findings are not subject to estoppel. The Devaseelan/SSHD v BK (Afghanistan) guidance requires fairness, treats the earlier determination as a starting point, and preserves the later tribunal’s duty conscientiously to decide the separate issue before it. The guidance against relitigation does not prevent determination of an issue that the earlier tribunal did not settle.

The appellant’s claim under the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011 for bilateral hearing loss was initially rejected on the ground that the injury had not been caused by service. A first First-tier Tribunal allowed his appeal in 2021, finding that he had bilateral sensorineural hearing loss predominantly caused by service.

The Secretary of State then made a separate tariff decision on 14 October 2021. It concluded that the hearing loss fell below the minimum descriptor in Schedule 3 and attracted no award. The First-tier Tribunal dismissed the appellant’s appeal against that decision on 14 February 2023.

Before the Upper Tribunal, the appellant contended that the later First-tier Tribunal was bound, or required by SSHD v BK (Afghanistan) [2019] EWCA Civ 1358, to accept the earlier tribunal’s assessment of the Institute of Naval Medicine report. He also alleged procedural unfairness and perversity.

1. Appeal dismissed. The First-tier Tribunal made no error of law in upholding the tariff decision.

2. Under section 5A(1)(b) of the Pensions Appeal Tribunals Act 1943, the first tribunal’s task was to decide whether the Secretary of State’s 2019 decision was rightly made on its stated ground. That ground was that the appellant’s hearing loss had not been caused by service. It did not determine either the level of hearing loss or the extent to which it was caused by service. Those matters could properly arise later when the amount payable and the relevant descriptor were determined under the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011.

3. The earlier tribunal’s acceptance of the Institute of Naval Medicine report was made to decide whether the appellant had any hearing loss. It was not a finding that the hearing loss was at the level shown in that report for tariff purposes. The later tribunal therefore neither subverted the earlier findings that there was hearing loss nor relitigated whether service had caused it.

4. The Devaseelan/BK (Afghanistan) guidance was assumed to apply. It is not an estoppel and is directed by fairness. The earlier decision was the necessary starting point, but the guidance against relitigation did not apply to the distinct statutory issue of the extent of hearing loss, which the earlier tribunal had not settled. In any event, the later tribunal conscientiously explained why it regarded other testing evidence as more reliable for tariff selection.

5. The appellant had adequate notice that the tribunal was concerned with the reliability of the Institute of Naval Medicine report. The tribunal did not act unfairly by relying on its concern that flat-line hearing loss was inconsistent with typical noise-induced hearing loss. Given its specialist composition and the absence of evidence showing that its assessment was plainly wrong, its conclusion was not perverse.

• Upper Tribunal (Administrative Appeals Chamber): Appeal dismissed in DN v The Secretary of State for Defence [2024] UKUT 238 (AAC).

• First-tier Tribunal (War Pensions and Armed Forces Compensation Chamber): On 14 February 2023, dismissed the appeal against the Secretary of State’s tariff decision that the accepted hearing-loss condition fell at or below tariff level.

• Earlier First-tier Tribunal: On 15 June 2021, allowed the appeal against the service-causation decision, finding bilateral sensorineural hearing loss predominantly caused by service.