DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

 

 

The DECISION of the Upper Tribunal is to allow the appeal by the Secretary of State.

 

The decision of the Manchester First-tier Tribunal dated 20 December 2011 under file reference AFCS/00126/11 involves an error on a point of law.

 

The Upper Tribunal is not in a position to re-make the decision under appeal.  It therefore follows that the deceased’s appeal against the Secretary of State’s decision dated 25 November 2010 is sent back to be re-heard by a different First-tier Tribunal, subject to the Directions at paragraph 33 below.

 

This decision is given under section 12(2)(a) and 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007.

 

 

REASONS FOR DECISION

 

The context of this appeal

1. This is a very sad case. It involves a soldier (Mr M) who served in the Royal Engineers in Afghanistan and died of lung cancer at the very young age of 31, leaving a widow and young family. He had made a claim under the Armed Forces Compensation Scheme (AFCS). The Service Personnel & Veterans Agency (SPVA), acting for the Secretary of State for Defence, decided that his cancer had not been caused by service. The First-tier Tribunal, allowing his appeal, decided to the contrary.

 

The Upper Tribunal’s decision in outline

2. I now allow the Secretary of State’s further appeal to the Upper Tribunal. The case needs to be reheard by a new tribunal. My decision is on a point of law only. The facts will need to be established by the new tribunal, which will in effect be starting afresh.

 

The proceedings before the Upper Tribunal

3. I have received detailed written submissions from Ms Galina Ward of Counsel, on behalf of the Secretary of State, and from Mr Hugh Lyons, Partner in Hogan Lovells International LLP, acting pro bono for Mrs M and the Royal British Legion. I also had the benefit of helpful oral argument from Ms Ward and Mr Lyons at a hearing at Field House on 25 January 2013.

 

4. Mrs M should rest assured that everything that could be said in support of the First-tier Tribunal’s (the FTT’s) decision, which had allowed her late husband’s appeal, has been said on her behalf by Mr Lyons, both eloquently and forcefully. However, for the reasons that follow, my conclusion is that as a matter of law the FTT’s decision cannot stand. I cannot predict what will be the outcome of the rehearing before a new FTT.

 

The background to the appeal to the First-tier Tribunal

5. The background facts are not in dispute. Mr M was born in 1980 and joined the Army in 2002. He served overseas in Afghanistan, Iraq, Kenya and Kuwait. One of his tours of duty in Afghanistan was between December 2007 and January 2008. During those two months, he was living in cramped and frankly appalling conditions, exposed to all sorts of fumes from rubbish burnt in an oil drum in his living quarters. Just two years later, in December 2009, Mr M (a life-long non-smoker) was diagnosed as having a rare subtype of lung cancer (adenocarnioma with a bronchioloalveolar cell pattern), accounting for at most 1 in 10 lung cancer cases. When it does occur, this variant is more typically found in the elderly and amongst women, as well as amongst non-smokers. According to Mr M’s specialist, Dr Blackhall, it was “extremely unusual to present in a young man in the third decade”. Mr M died in March 2012, less than 3 months after the FTT had allowed his appeal.

 

6. There has been no challenge by the Secretary of State to the FTT’s general findings about the living conditions in Afghanistan during the period in question. Mr M was involved in the construction of a secure compound using HESCO pre-fabricated fortified units. These units had no windows, no heating, no light and no integral ventilation. As the FTT found:

 

“There was no cooking or heating apparatus provided in the building, except the soldiers were provided with hexamine cookers. They used a cut down oil drum for cooking and heating purposes. The oil drum stove was kept permanently lit. As it was an improvised piece of apparatus they used whatever combustible materials that came to hand. These included solid wood offcuts and plywood offcuts from the building work and discarded pallets. The appellant said, and we accept, it was obvious the wood had been treated as it had a chemical odour. Although the soldiers were told not to burn plastic in the oil drum, such as bags and bottles, this did not always happen [Upper Tribunal note: in other words, the instructions were sometimes ignored]. The oil drum was painted on the outside and when it got hot the paint blistered and burnt. The appellant said the smoke from the oil drum was invariably unbearable and everybody coughed a lot and had to go outside frequently. He said the soldiers spent 12 hours a day in the building, 9 hours sleeping and 3 hours cooking, eating and undertaking personal tasks.”

 

7. Putting this exposure to one side for the moment, at an earlier stage in the case Mr M had referred to a number of other different types of exposure in service which might have either caused or contributed to his condition. These were exposure to depleted uranium, to asbestos, to water purification chemicals and to construction and other dust. The possibility of exposure through passive smoking, while working as a barman before he signed up, was also explored. The FTT considered but rejected each of these possibilities. Mr Lyons has made no challenge to those findings and rightly so. The FTT’s conclusions on those possibilities were clearly ones that were open to the tribunal on the evidence.

 

8. Once these other factors had been rejected as potential causes, the FTT was really faced with a stark choice – either Mr M’s lung cancer was of no known cause or it had been caused by the exposure to fumes in Afghanistan between December 2007 and January 2008 in the difficult conditions so vividly described by the FTT (what I describe in short-hand terms as “the oil drum exposure”).

 

The medical evidence before the First-tier Tribunal

9. The FTT had before it a number of items of medical evidence. These included the standard Ministry of Defence “Synopsis of Causation” on Lung Cancer, essentially an official literature review, expressed in general terms. Ultimately, however, the case was seen to turn on two letters written by Mr M’s consultant oncologist, Dr Blackhall, and a memorandum from Dr Sissons, the SPVA Senior Medical Advisor.

 

10. Dr Blackhall’s first letter, dated 20 September 2011, set out her qualifications and specialist expertise, the unusual nature of Mr M’s lung cancer and the treatment and poor prognosis. The third and fifth paragraphs of her letter read as follows:

 

“The causes of lung cancer in never smokers are not well understood. There may be a genetic predisposition that increases the risk of development of never-smoker lung cancer. It is more common in the East Asian ethnic population, for example. There is no family history of lung cancer in Mr M’s case. With respect to passive smoking, the duration of exposure that Mr M describes and the very young age of onset in his case suggests factors other than, or in addition to, passive smoking. It is possible that exposure to other airborne chemicals, fumes or gases may have accelerated the development of lung cancer in the context of having a genetic predisposition to develop this disease.

 

...

 

In recent years the oncology field has learned more about the molecular mechanisms underpinning the development of lung cancer and it has become clear that never-smoker lung cancer is associated with different molecular mechanisms to smoking related lung cancer. There is not yet enough knowledge to solely attribute never smoker lung cancer to passive smoking. For societal benefit is it still important to consider other potential contributing factors, particularly for cases where the age of onset is unusually young and the patient lacks the characteristics such as East Asian ethnic origin, female sex, that are more commonly associated with the type of lung cancer that Mr M has. The possibility of environmental exposures should be considered particularly where there is uncertainty of the nature and carcinogenic properties of chemicals, fumes and gases exposed to, even if such exposures are unavoidable in certain lines of work.”

 

11. This letter was produced at the first FTT hearing, just two days later, on 22 September 2011. That tribunal sensibly adjourned in order to allow the Secretary of State the opportunity to consider the new evidence. The official response took the form of an internal memorandum from Dr Sissons to the SPVA decision-maker. She reviewed Dr Blackhall’s letter, describing it as one that “concludes that the possibility of environmental exposures should be considered and it refers to the uncertainty of the nature and carcinogenic properties of chemicals, fumes and gases exposed to. The report therefore speculates as to possible exposures and possible accelerating factors.” Dr Sissons concluded her advice to the effect that “The cause in this case of the claimed condition lung cancer is not known and therefore this has to be rejected as not caused by service under AFCS.”

 

12. Dr Sissons’s memorandum was shown to Dr Blackhall, who then wrote a second latter dated 17 December 2011. The substance of this read as follows:

 

“Dr Sissons comments that genetic predisposition and ethnic factors associated with lung cancer in never smokers are not service related with which I agree. However in the presence of a genetic predisposition, an environmental exposure may accelerate the onset of cancer. Dr Sissons comments on speculation regarding environmental exposures. Mr M has identified exposure to formaldehyde, a well known carcinogen, from burnt wood in the form of construction timber and plywood containing formaldehyde. He also reports that plastic bags and bottles releasing noxious fumes were burnt in a poorly ventilated area. A short exposure to a carcinogen can be sufficient to promote cancer in the context of a genetic predisposition.

 

In never smokers with lung cancer a number of genetic changes have been identified. These genetic changes have not been detected in Mr M’s case reinforcing the very unusual nature of this condition, and the possibility that an environmental exposure to a carcinogen such as formaldehyde has been causal.”

 

The Manchester First-tier Tribunal’s hearing

13. A new FTT convened to hear the appeal three days later on 20 December 2011. The SPVA presenting officer very fairly declined the opportunity to ask for a further adjournment, given Mr M’s condition. Mr M then gave his evidence about the oil drum exposure, which the FTT clearly accepted. The FTT judge’s notes in the record of proceedings then summarised the competing submissions at the close of the case.

 

14. The SPVA presenting officer relied on Dr Sissons’s memorandum. He argued that, on the balance of probabilities, service had not been shown to be cause of the disease. Mr M’s Royal British Legion (RBL) representative submitted that Dr Blackhall’s second letter had shown that formaldehyde can cause lung cancer; moreover, the consultant was a specialist in the field, unlike Dr Sissons, and her report should therefore be accorded greater weight.

 

15. The FTT plainly found the RBL representative’s submission persuasive. The FTT service member’s (admirably clear and comprehensive) note recorded that “after discussion we felt the expert letters and the exposure to formaldehyde was sufficient to warrant a cause”.

 

The First-tier Tribunal’s decision

16. The FTT allowed Mr M’s appeal. Its overall conclusion was “on a balance of probabilities that the conditions under appeal were caused by the appellant’s exposure in service to formaldehyde fumes resulting from the burning of plywood in the circumstances described above”. Having found (as it was certainly entitled to) that there was no evidence of any genetic predisposition to develop lung cancer, the FTT dealt with the crucial pieces of medical evidence as follows:

 

“In her further letter of 17^th December 2011, Dr Blackhall states Formaldehyde is a well known carcinogenic and that exposure to a carcinogenic like Formaldehyde can cause lung cancer. We find that the appellant was exposed to Formaldehyde fumes whilst living in the above building; he was also exposed to other toxic but chemically unidentified fumes.

 

In her memo of 4^th October 2011, the Secretary of State’s medical advisor refers to Dr Blackhall’s first letter and considers the non-specific kinds of exposure referred to ... provides no more than a speculative conclusion that the appellant’s lung cancer is caused by service. While this may have been a correct view at the time it was given, we consider it is no longer correct in the light of Dr Blackhall’s second letter, which the Veterans’ Agency at the hearing agreed could be considered as part of the evidence in this appeal. We prefer the conclusion in the second letter to that of the medical advisor.”

 

The Secretary of State’s grounds of appeal and the parties’ submissions

17. The Secretary of State has a single ground of appeal – that the FTT could not rationally conclude on the evidence before it that, on the balance of probabilities, Mr M’s cancer was caused by exposure to formaldehyde fumes in Afghanistan. In Ms Ward’s careful submission, Dr Blackhall had made generic statements about carcinogens and cancer in general; her evidence had raised “a possibility that cannot be ruled out and nothing more”. Nowhere had Dr Blackhall suggested that the oil drum exposure, and specifically exposure to formaldehyde, was a probable or even a likely cause of Mr M’s lung cancer. Nor was Dr Blackhall stating that other factors probably did not cause his lung cancer. It was, Ms Ward submitted, a perfectly natural human desire to seek to attribute a cause, but the reality, on the current state of medical knowledge, was that causation was poorly understood and could not be established in this case. The FTT, she argued, had accordingly erred in law by reaching a conclusion which was simply not open to it on the evidence.

 

18. Mr Lyons, in his attractive argument, characterised Ms Ward’s core argument as essentially a linguistic or purist one – in a nutshell, no more than that a “possibility” does not equate to a “probability”. However, the FTT was an expert body which was tasked with evaluating evidence from a specialist. The consultant in this case had written in the terms that she had because it was not her role to usurp the decision-making function of the tribunal. It was hardly just that the case should be won or lost on the choice of a single word by the oncologist, writing a letter without the benefit of legal advice. The FTT had been presented in the final analysis with a choice – either the lung cancer had been caused by the oil drum exposure or by some other unknown cause. The FTT in this case had been entitled to reach the decision it did on the balance of probabilities, given both that formaldehyde was a known carcinogen and the evidence of the exposure in Afghanistan.

 

The Upper Tribunal’s analysis

19. This case is governed by the Armed Forces (Pensions and Compensation) Act 2004 and the Armed Forces and Reserve Forces (Compensation Scheme) Order 2005 (SI 2005/439; “the AFCS Order”). Article 50 of the AFCS Order provides that the burden of proving any issue lies on the claimant (in this case Mr M). The standard of proof is the balance of probabilities (Article 51 of the AFCS Order). (The equivalent provisions now are articles 60(1) and 61 of the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011 (SI 2011/517)). In plain English, Mr M had to show that it was more probable than not that his cancer had been caused by the exposure concerned.

 

20. I find myself driven to accept Ms Ward’s submissions. This is a case where the FTT placed reliance on Dr Blackhall’s evidence in a way which could not be sustained on proper analysis. Her evidence simply could not bear the weight being attached to it. Although the SPVA representative at the FTT hearing had apparently characterised the case as one involving a conflict of medical evidence, I agree with Ms Ward that this description was not strictly accurate. Dr Sissons was saying this was a case of no known cause. Dr Blackhall was saying that causation in such cases was not well understood but that exposure to formaldehyde or other noxious fumes was a possible cause. There was, quite simply, no evidence to show on the balance of probabilities a link between the oil drum exposure and the contraction of lung cancer. There are two particular reasons which lead me to the conclusion that Ms Ward is correct in her analysis.

 

21. First, the FTT recorded in their reasons that “In her further letter of 17^th December 2011, Dr Blackhall states Formaldehyde is a well known carcinogenic and that exposure to a carcinogenic like Formaldehyde can cause lung cancer.” Ms Ward observed that in this passage the tribunal had added in the words “formaldehyde” and “lung” in the final part of that phrase. Dr Blackhall had certainly said that formaldehyde was a “well known carcinogen”; but she then went on to say that “a short exposure to a carcinogen can be sufficient to promote cancer in the context of a genetic predisposition”. She then later referred to “the possibility that an environmental exposure to a carcinogen such as formaldehyde has been causal”. She did not say in terms that formaldehyde causes lung cancer, let alone that such exposure caused lung cancer in this case.

 

22. This is not simply playing with words. An example from another type of toxic exposure illustrates the point. Asbestos is a well-known carcinogen. Indeed, it is the only known cause of the fatal cancer mesothelioma. There is, furthermore, a strong association between asbestos exposure and lung cancer, in smokers and non-smokers alike. A causal relationship has also been established between asbestos exposure and cancer of the larynx and ovarian cancer. However, no link has as yet been established between asbestos exposure and, for example, breast cancer or prostate cancer. So while an oncologist may well say that it is “almost certain” or “highly likely” that a shipyard worker’s mesothelioma was caused by asbestos exposure, the most she might say (and she might well not be prepared even to say that much) is that there is a “possibility” that such exposure caused a fellow worker’s prostrate cancer. I am sure that Dr Blackhall was choosing her words carefully. The fact remains that the best she could say was that she could not rule out environmental exposure as a possible cause. She did not rule it in on the balance of probabilities. To that extent I regret to say that the FTT misunderstood the evidence before them.

 

23. The second main reason why I accept Ms Ward’s argument is this. The FTT’s reasons make it clear that they regarded Dr Blackhall’s second letter as in effect trumping the counter argument put by Dr Sissons. The FTT suggested that Dr Sisson’s characterisation of Dr Blackhall’s first letter as being speculative in nature “may have been a correct view at the time it was given”. However, the FTT then refer to the specialist’s subsequent letter, stating that “We prefer the conclusion in the second letter to that of the medical advisor.” This reasoning accordingly adopted the RBL’s representative’s final submission, as also reflected in the service member’s notes of the hearing and post-hearing discussion. This is not simply a question of weighing the evidence, which is the FTT’s territory. Rather, the FTT’s approach attaches a degree of significance to Dr Blackhall’s second letter that it simply cannot bear. The conclusion in her second letter was that a “short exposure to a carcinogen can be sufficient to promote cancer in the context of a genetic predisposition” (although no genetic changes had been identified in Mr M’s case), that this was a very unusual case, and that there was “the possibility that an environmental exposure to a carcinogen such as formaldehyde has been causal” (emphasis added). There was simply no conclusion (which the FTT might then adopt and “prefer”) that exposure to formaldehyde fumes (or indeed other unidentified fumes) was more probably than not the cause of Mr M’s lung cancer.

 

24. As Ms Ward argues, the medical understanding of the causation of this type of lung cancer is far from complete, as Dr Blackhall also recognised, and in many cases it is simply not possible to identify a cause on the balance of probabilities. On the evidence before it, this was one such case. The First-tier Tribunal erred in law in finding that causation had been shown on the balance of probabilities, for the reasons explained above.

 

25. I should record that I heard some oral argument around the role of appellate courts and tribunals when dealing with specialist fact-finding tribunals. I was referred to three cases: Cooke v Secretary of State for Social Security [2001] EWCA Civ 734, AH and Others (Sudan) v Secretary of State for Home Department [2007] UKHL 49; [2008] 1 AC 678 and Secretary of State for Work and Pensions v Cattrell [2011] EWCA Civ 572. Ms Ward’s contention was that this line of authority simply urged caution on the ordinary courts before interfering in specialist tribunals such as the Upper Tribunal. The case law did not suggest that the Upper Tribunal itself should refrain from correcting an obvious error of law by the First-tier Tribunal. In any event, the present case concerned a general point of law, namely the quality of evidence needed to satisfy the ordinary civil test based on the balance of probabilities. Mr Lyons, on the other hand, emphasised the importance of appellate courts and tribunals recognising the fact-finding expertise of the First-tier Tribunal, especially in the realm of specialist medical evidence.

 

26. I am not sure this debate actually takes the matter much further forward. I agree with Judge Ward’s observation in MW v Halton Borough Council [2010] UKUT 34 (AAC), where he held:

‘43. I should record that both Counsel addressed me as to the observations of Baroness Hale in AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49, where she said:

“To paraphrase a view I have expressed about such expert tribunals in another context, the ordinary courts should approach appeals from them with an appropriate degree of caution; it is probable that in understanding and applying the law in their specialised field the tribunal will have got it right: see Cooke v Secretary of State for Social Security [2001] EWCA Civ 734, [2002] 3 All ER 279, para 16. They and they alone are the judges of the facts. It is not enough that their decision on those facts may seem harsh to people who have not heard and read the evidence and arguments which they have heard and read. Their decisions should be respected unless it is quite clear that they have misdirected themselves in law. Appellate courts should not rush to find such misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently.”

I am not convinced that these observations are apt to impose an additional need for restraint on the Upper Tribunal, established as part of the structure created by the Tribunals, Courts and Enforcement Act 2007, going beyond what is integral in its jurisdiction in relation to appeals being confined to appeals on a point of law in any event.’

27. The Upper Tribunal’s supervisory role, as Ms Ward argued, is designed to ensure consistency so that like cases are decided alike, so far as is possible. The issue before the FTT in this case ultimately turned on the issue of the sufficiency of evidence. In short, the FTT misunderstood the evidence and reached a decision that could not be sustained on that evidence.

 

The Upper Tribunal’s disposal of this appeal

28. Ms Ward invited me to set aside the FTT’s decision for error of law. I do so. She did not express a firm view as to whether I should re-make the decision myself or send the case back for rehearing. Mr Lyons, reasonably enough, argued that if I were not with him on the main issue, then it was only right to direct a rehearing. Fairness, he said, dictated that Mrs M and her advisors have the opportunity to address any shortcomings in the evidence presented.

 

29. I agree with Mr Lyons on that last point. It is only fair that the issues be properly explored. This is the type of case which, had it been a personal injury action in the High Court, might well have involved extensive evidence by, and cross-examination of, expert scientific witnesses over several days. Tribunals operate in a much more rough and ready fashion. There was an understandable anxiety before the FTT to get the case on and resolved while Mr M was still available to give his evidence. Sadly that imperative is no longer in issue. There is now ample time in which both parties can marshal their cases on the best evidence they can obtain. That may relate to the carcinogenic properties of formaldehyde. It may also relate to the effects of other noxious and possibly toxic fumes inhaled by Mr M.

 

30. I therefore allow the Secretary of State’s appeal, set aside the FTT decision dated 20 December 2011 and direct a re-hearing before a new tribunal. A Judge in the War Pensions and Armed Forces Compensation Chamber should give directions for the re-hearing, supplementing those at paragraph 33 below.

 

The contrast with the former war pensions scheme

31. This case demonstrates one of the important differences between the Naval, Military and Air Forces etc (Disablement and Death) Service Pensions Order 2006 (SI 2006/606) and the AFCS.  Under the old scheme, article 40(3) provided that “the benefit of any reasonable doubt shall be given to the claimant” in cases where disablement or death occurred within seven years of the end of service. There is no such “benefit of the doubt” available under articles 50 and 51 (now 60 and 61) of the AFCS.

 

Conclusion

32. For the reasons explained above, the decision of the tribunal involves an error of law. I must therefore allow the appeal and set aside the decision of the tribunal (Tribunals, Courts and Enforcement Act 2007, section 12(2)(a)). The case is remitted for rehearing by a new tribunal subject to the directions that follow (section 12(2)(b)(i)).

 

Directions

33. The following directions apply:

 

(1) The rehearing will be at an oral hearing.

 

(2) The new tribunal should not involve any member who has previously been a member of a tribunal involved in this appeal.

 

(3) The new tribunal must consider all the evidence afresh, including any new evidence, and is not bound in any way by the decision of the previous tribunal.  Depending on the findings of fact it makes, the new tribunal may reach the same or a different outcome to the previous tribunal.

 

These directions may be supplemented by directions by a Tribunal Judge in the War Pensions and Armed Forces Compensation Chamber of the First-tier Tribunal.

 

 

 

 

 

 

Signed on the original Nicholas Wikeley

on 08 February 2013 Judge of the Upper Tribunal