WJ v Secretary of State for Defence

On an appeal from a specialist pensions tribunal, the Upper Tribunal will not re-evaluate evidence or substitute its view of the facts for that of the tribunal. A finding that Gulf War Illness is not a physical injury or organic disease under the applicable war-pension scheme is ordinarily an evidential conclusion, absent perversity or another material error of law. The tribunal may distinguish diagnostic criteria from research classification criteria and rely on accepted expert evidence about the absence of diagnostic criteria or underlying pathology. Where the claimed condition is not a qualifying injury, questions of service causation for that condition do not arise. Individual symptoms may nevertheless require separate consideration where they form the basis of the claim.

The appellant, a former Royal Fleet Auxiliary member who served during the 1991 Gulf War, claimed a war disablement pension for Gulf War Illness and related symptoms. The Secretary of State refused the claim, and the Pensions Appeal Tribunals for Scotland dismissed his appeal on 13 October 2023.

The PATS found that Gulf War Illness was not a qualifying physical injury or organic disease and that the appellant had not established service-related causation for the symptoms it accepted. Permission to appeal was granted to the Upper Tribunal on six grounds concerning the status of Gulf War Illness, the medical evidence, cognitive difficulties, loss of libido and causation.

1. The appeal was dismissed. The PATS’s decision of 13 October 2023 did not involve any material error of law.
2. The Upper Tribunal’s jurisdiction was concerned with error of law, not the re-evaluation of evidence. The PATS was the expert fact-finding tribunal. Its assessment of the medical literature and the weight given to Dr Madhok’s evidence were matters for it, absent perversity or material legal error.
3. The PATS was entitled to distinguish diagnostic criteria from classification or case criteria. It was entitled to accept that there were no accepted diagnostic criteria for Gulf War Illness, that classification criteria could not be used as diagnostic criteria, and that no unifying underlying pathology had been identified. On the evidence, it was entitled to find that Gulf War Illness was not a physical injury or organic disease within the meaning of Schedule 1 to the War Pensions (Mercantile Marine Scheme) 1964.
4. The PATS correctly approached the claim in two stages: first, whether the appellant had established the claimed disablement on the balance of probabilities; and secondly, whether an accepted condition was related to service, including under the reasonable-doubt provisions. The first stage was supported by Royston v The Minister of Pensions 1948 1 All ER 778. The approach to causation was consistent with Abdale and others v SSD (WP) [2014] UKUT 477 (AAC) and Coe v Minister of Pensions [1967] 1 QB 238.
5. Once the PATS found that Gulf War Illness was not a qualifying injury, the conditional questions whether the appellant had that illness and whether it was attributable to service did not arise. The individual symptoms could nevertheless be considered separately. The PATS adequately explained its findings concerning depression, memory loss, loss of libido and impotence, and its conclusions on causation were open to it.

• Upper Tribunal (Administrative Appeals Chamber) — Appeal dismissed. The PATS’s decision under case number PATS/E/19/0018 was held not to contain any material error of law.
• Pensions Appeal Tribunals for Scotland — Appeal dismissed on 13 October 2023.
• Secretary of State for Defence — The entitlement decision dated 11 December 2018 refused the war-pension claim.