David Watson v The Secretary of State for Work and Pensions

1. By directions sent to the parties on 13 November 2025, I informed the parties that there had been an administrative oversight on this case, the circumstances of which are as follows.

2. The hearing in this matter took place on 1 October 2025. Pursuant to my directions, the parties were permitted to file short further written submissions on the question of whether the specific accident or accidents which have caused injury to an IIDB claimant are a ‘defining parameter’ of the claim or not.

3. The parties duly filed submissions, the respondent by 12 noon on 2 October 2025, and the appellant by 12 noon on 3 October 2025.

4. I then prepared a draft final decision which was sent to the parties on 17 October 2025 and, following receipt of typographical corrections from the parties, the final decision was completed by me on 28 October 2025 and sent to the parties on 6 November 2025.

5. On 12 November 2025 I received an ‘alert’ on the Upper Tribunal’s case management system (CMS) notifying me of “Post Decision – Correspondence received”. This turned out to be an email from Mr Howell, counsel for the Secretary of State, sent on 6 October 2025 at 15:17, replying to a point made by the appellant in Mr Royston’s supplementary submissions of 3 October 2025 about section 103(2) of the SSCBA 1992 . Mr Howell attached an additional authority, AJ v Secretary of State for Work and Pensions [2012] UKUT 209 (AAC) .

6. Although Mr Howell’s further submission of 6 October 2025 was unsolicited, it is highly regrettable that it was not placed before me immediately or before the final decision was promulgated. I would certainly have considered and dealt with the submission in my reasons if I had received it.

7. By directions sent to the parties on 13 November 2025 I informed the parties of what had happened and explained that it seemed to me that one of the conditions for set aside in rule 43(2) had been satisfied as the failure to notify me of Mr Howell’s further submission constituted “some other procedural irregularity” within rule 43(2)(d). However, I explained I should not set aside a decision unless it is in the interests of justice to do so (rule 43(1)(a)). I directed the parties to make submissions as to how I should proceed and, in particular, as to whether it is in the interests of justice for me to set aside the final decision in order to consider Mr Howell’s final submission or not.

8. In response, the appellant argues that it is not in the interests of justice to set my decision aside, that I could and should have refused to consider the Secretary of State’s late, unsolicited submission if I had wished and that it would be disproportionate and unfair to reopen the final decision now at this stage, with the consequent delay and uncertainty that would entail for the parties.

9. The Secretary of State, however, argues that I should set aside at least paragraphs 71 to 81 of my final decision in order to deal with the argument that was raised in Mr Howell’s additional email of 6 October 2025 and to enable fuller consideration of the issue dealt with in this part of the final decision. The Secretary of State submits that the important issue of statutory interpretation I dealt with in those paragraphs was, in hindsight, dealt with in a “somewhat unsatisfactory” way. The Secretary of State indicates a wish also to address me on the relevance of the decision in CI/6872/95 , which was an authority I referred to at [78] although I had not been referred to it by the parties.

10. I have considered the parties’ submissions carefully. I am satisfied that what happened in this case amounted to a procedural irregularity and that I would have allowed and considered the Secretary of State’s further submission if it had reached me at the appropriate time. However, I am satisfied that it is not in the interests of justice for me now to set aside my final decision for the following reasons.

11. First, the principle of finality in litigation is an important one and I should not lightly set aside a final decision.

12. Secondly, having now considered the submission the Secretary of State made in that 6 October 2025 email and the additional authority of AJ v SSWP [2012] UKUT 209 (AAC) , I am satisfied that it would not have changed my decision on the point that I dealt with at [71]-[81] of my decision. I there decided that in a claim for IIDB the relevant accident is not a ‘defining parameter’ of the claim and that the approach in Miah was to be applied rather than the approach in DS . Accordingly, I held that it was for the Secretary of State and, in turn, the First-tier Tribunal, to determine on the basis of the evidence before them at the time, whether the claimant is entitled to IIDB as having suffered an accident or accidents in the course of employment as an employed earner that caused personal injury resulting a loss of faculty of not less than 14 per cent disablement. Neither the Secretary of State or the Tribunal is limited to considering only the accident(s) mentioned in the claim form.

13. Having reviewed AJ v SSWP , that does not change my view. The point of law raised by the parties before me in this case was not raised in that case. Although on appeal the appellant was arguing that the 1986/87 accident should have been investigated by the FTT at his hearing in addition to the circumstances of the accident in respect of which he had made a claim ([21]), the appellant accepted that he had not made a claim in respect of the 1986/87 accident ([23]). His case on appeal was that the FTT should have advised him to do so ([21]). It is unsurprising that Judge Wikeley concluded in the circumstances that the FTT had not erred in law in failing to offer him advice of that sort. That case is thus quite different to the present.

14. It does not follow from my decision in this case that there are no limits to the extent to which a claimant can change their claim on appeal. As I made clear at [69], it will always be necessary for the Tribunal to consider the scope of the claim, and what issues are raised on appeal, by construing the claim form. My decision was only that, as a matter of statutory interpretation, the claimant can, during the course of an appeal, change his case as to which accident or accidents caused his injury. The claim is not ‘frozen’ in that respect by the Secretary of State taking a decision on the claim, although it may be ‘frozen’ in other respects as I made clear at [79]. In the present case, where the appellant had raised a case in the claim forms or, if not in the claim forms, certainly at the hearing, that there were other accidents of a similar sort that had contributed to the claimed injury, my decision was that the Tribunal erred in law by not considering that case.

15. Thirdly, while I acknowledge that the way in which this issue emerged at the hearing was not ideal, I am satisfied that both parties had a fair and reasonable opportunity to make their arguments on the point. The fact that the parties’ competing arguments were reliant on Miah and DS was not apparent until oral argument at the hearing. Neither party referred to either authority in their skeleton argument; both should have done in order to make good their respective arguments. When it became apparent that I needed to consider those cases in order to resolve the disputed point of interpretation, I allowed the parties to make further written submissions after the hearing, with the appellant having the last word as was his entitlement under standard procedures. There was no unfairness in the Secretary of State not having a further right of reply.

16. I also acknowledge that the way the arguments unfolded was a factor in my not identifying CI/6872/95 until after the hearing. I located that case as a result of making a check that there were no other relevant authorities that the parties should have cited to me. If I had considered it added anything material to the argument one way or the other, I would have reverted to the parties for further submissions. As it was, I did not consider it did and I remain of that view. I included it only out of a sense that it was preferable for a relevant case to be mentioned in the decision than not, and so that the parties and any reader of the decision would be aware of it lest the issue arose for determination again, whether on appeal in this case or another case. For the avoidance of doubt, my reference to that case in the decision is not in itself a procedural irregularity, and nor would it be in the interests of justice to set the final decision aside in order to enable the Secretary of State to address me on that case, whether in combination with the submissions made in the Secretary of State’s email of 6 October 2025 or on its own.

17. For all these reasons, I am satisfied that it is not in the interests of justice for the final decision in this matter to be set aside and I decline to do so. Holly Stout Judge of the Upper Tribunal (Approved for issue on 15 December 2025)