KF v Secretary of State for Defence (AFCS)
| Jurisdiction | UK Non-devolved |
| Judge | Judge May QC |
| Neutral Citation | [2019] UKUT 154 (AAC) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Subject Matter | Tribunal procedure,practice,War pensions,armed forces compensation,practice - evidence,armed forces compensation - war pensions – entitlement,May,D |
| Date | 11 April 2019 |
| Published date | 28 May 2019 |
KF v SSD [2019] UKUT 154 (AAC)
Case No: CSAF/135/2018
1
THE UPPER TRIBUNAL
ADMINISTRATIVE APPEALS CHAMBER
DECISION OF THE UPPER TRIBUNAL JUDGE
The appeal is allowed.
The decision of the tribunal given at Edinburgh on 5 August 2015 is set aside.
The case is referred to the Pensions Appeal Tribunal (Scotland) for rehearing before a
differently constituted tribunal in accordance with the directions set out below.
REASONS FOR DECISION
1. The claimant, who is the widow of a deceased former serviceman, appealed against
a decision of a pensions appeal tribunal disallowing an entitlement appeal on an appeal
decision of the Secretary of State dated 10 August 2013. The tribunal were not satisfied that
the claimant’s deceased husband’s condition of Follicular Lymphoma was attributable to
service. The decision of the tribunal is set out at pages 456 to 462.
2. The claimant is represented by Dr Busby, who had also provided evidence in the
appeal which the tribunal refused to admit. The tribunal refused to admit Dr Busby’s
evidence on two grounds. These grounds were as follows:
“In Forbes’ case the alleged exposure occurred during the 1980s, and he first
presented with symptoms of lymphoma in 2009. The (claimant) commented that
although he had been treated for other medical conditions in the period during which
she had known him (1996 onwards) he had no recognised lymphoma symptoms prior
to 2009. This would suggest that if his lymphoma could be related to previous
radiation exposure, it would have to have been during service more than 20 years
before it presented. Lymphoma is not known to be present but asymptomatic over
such a long period.
The Appellant was unable to provide evidence to the contrary, although reference
was made to material which we were unable to consider as a result of the Upper
Tribunal Decision of Abdale and others [2014] UKUT 0477 (from page 244 onwards
within Statement of Case) and a Directive from the President of PATS (at page 238
of Statement of Case). Accordingly whilst this material was available to both the
Appellant and the Veterans UK the Tribunal was not able to consider same in our
deliberations.”
3. The claimant sought permission to appeal against this decision and on 13 December
2018 I granted permission to appeal on a restricted basis. In doing so I said:
“However permission is restricted to the issue set out in the tribunal’s statement in
the second paragraph at page 459 in which the tribunal determined that they were
unable to consider the material referred to in that paragraph by reason of the case of
dale & Others cited therein.”
4. Attached to my determination was the following direction:
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2 books & journal articles
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Table of Commissioners' and Upper Tribunal Decisions
...v South London and Maudsley NHS Foundation Trust [2019] UKUT 172 (AAC), [2020] AACR 1 223 KF v Secretary of State for Defence (AFCS) [2019] UKUT 154 (AAC) 243 KO v Secretary of State for Work and Pensions (ESA) [2013] UKUT 544 (AAC) 241 LC v Secretary of State for Work and Pensions (DLA) [2......
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The Hearing
...which a medical examination is required in advance of the hearing. Furthermore, section 5B(b) of the Pensions Appeal Tribunals Act 28 [2019] UKUT 154 (AAC). 29 Practice Statement No 4. 244 War Pensions and Armed Forces Compensation – Law and Practice 1943 prevents a tribunal from taking int......