DN v Secretary of State for Defence: [2024] UKUT 238 (AAC)
Upper Tribunal Administrative Appeals Chamber decision by Judge Wright on 31 July 2024
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Judicial Summary
Armed Forces Compensation Scheme - first First-tier Tribunal (FTT) decides that appellant has hearing loss which was caused by service. In deciding that the appellant has hearing loss, first FTT relies on medical report, the contents of which indicate hearing loss that would qualify for a tariff award. First FTT not deciding extending of hearing loss (i.e., level, if any, of tariff award). Second FTT in deciding the extent of the appellant’s hearing loss finds it is less than any qualifying level and so, in effect, disagrees with the report the first FTT had found the most reliable. The issue on the appellant’s further appeal to the Upper Tribunal was whether the second FTT could lawfully decide the appeal in a way that found the report before the first FTT was not reliable. Whether relitigating a finding of fact or issue which had already been decided. Consideration of the application of the guidance in BK Afghanistan [2019] EWCA Civ 1358 and related case law. Appeal dismissed. Second FTT was not bound or not otherwise unable to depart from the report before the first FTT.