GM v The Secretary of State for Defence

A tribunal deciding an assessment appeal must identify the decisions, periods and issues that are actually before it. It must determine every material ground raised and give reasons sufficient to show how its factual findings and structured assessment led to the percentage awarded.

Although percentage assessments permit broad judgment, that does not excuse a failure to address a material argument, such as alleged deterioration or a relevant analogy with assessment guidance. A decision that misdescribes the appeal, fails to identify the relevant effective periods, or states a conclusion without explaining why it follows from the evidence contains an error of law.

The appellant challenged a combined decision of the Pensions Appeal Tribunals for Scotland which had upheld a 70% interim composite assessment for several service-attributable conditions, including post-traumatic stress disorder.

He contended that his PTSD and other conditions had worsened, and that the tribunal had failed to address his arguments and give adequate reasons. The Upper Tribunal considered whether the PATS had correctly identified the Secretary of State’s decisions, the periods under appeal and the appellant’s grounds.

1. Appeals allowed. The PATS decision involved material errors of law. It was set aside and the appeals were remitted to a freshly constituted PATS for an oral rehearing.

2. Under Pensions Appeal Tribunals Act 1943, section 5B(a), the PATS had to determine all issues raised by the appeals. It materially misdescribed those issues as confined to the adequacy of the assessments for PTSD and bilateral knee pain. The documentary history showed potentially material arguments that PTSD had worsened and that psychiatric-assessment guidance should be applied by analogy.

3. The PATS also failed to identify and keep in focus the decisions and discrete effective periods under appeal. Its reasons did not resolve the apparent relevance of periods extending beyond 30 August 2021, or explain why any such period was excluded.

4. The reasoning was inadequate. An assessment need not be expressed with mathematical precision, but the tribunal must make relevant findings and explain, at least in general terms, why those findings justify the percentage assessed. The PATS described its composite-assessment method but did not explain why the evidence concerning PTSD justified a 40% assessment at each relevant decision date.

5. The tribunal did not address the temporal significance of evidence about the appellant’s move of home, medication, sleep disturbance, flashbacks and ability to drive. Nor did it explain whether alleged deterioration was accepted, rejected, or irrelevant to the decisions under appeal. Those omissions were material because the Upper Tribunal could not safely determine the first-instance appeals itself.

6. The remitted tribunal must decide the appeals afresh on the relevant evidence, decisions, issues and periods. The error-of-law outcome does not determine whether the appellant will succeed on the merits. Case-management directions may be appropriate in light of related outstanding appeals.

• Upper Tribunal (Administrative Appeals Chamber). Allowed the appeals in [2024] UKUT 45 (AAC), set aside the PATS decision and remitted both appeals for a fresh oral hearing.
• Pensions Appeal Tribunals for Scotland. On 12 June 2023, refused the combined appeals and upheld the Secretary of State’s assessment decisions.