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You are here: BAILII >> Databases >> Upper Tribunal (Administrative Appeals Chamber) >> CH v Secretary of State for Work and Pensions (ESA) (Tribunal procedure and practice (including UT) : other) [2015] UKUT 187 (AAC) (17 April 2015) URL: https://www.bailii.org/uk/cases/UKUT/AAC/2015/187.html Cite as: [2015] UKUT 187 (AAC) |
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IN THE UPPER TRIBUNAL Case No. CE/3330/2014
ADMINISTRATIVE APPEALS CHAMBER
Before: M R Hemingway: Judge of the Upper Tribunal
Decision: The decision of the First‑tier Tribunal sitting at Harlow on 19 March 2014 under reference SC133/13/01590 involved an error of law and is set aside.
The appeal is remitted for determination at an oral hearing before a completely differently constituted tribunal.
This decision is made under section 12(1), 12(2)(a) and 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007.
DIRECTIONS
Subject to any later directions by a district tribunal judge of the First‑tier Tribunal, the Upper Tribunal directs as follows:
(1) The new hearing shall be an oral hearing. It shall take place before a completely differently constituted tribunal to that which considered the appeal on 19 March 2014.
(2) The
appellant is reminded that the new tribunal can only deal with her situation as
it was down to 25 June 2013
(the date of the original decision of the
Secretary
of
State
under appeal) and cannot deal with any changes after that
date.
(3) If
the parties have further written evidence to put before the tribunal, in
particular medical evidence, this should be sent to the appropriate regional
tribunal office within one month of this decision being issued. To be relevant
any such evidence will have to relate to the situation as it was in
June 2013.
REASONS FOR DECISION
1. The appellant, who was
born on 5 August 1968, suffers from health problems including back
pain which, in part at least, stems from a road traffic accident which occurred
in 2006. She had, since 22 January 2008, been receiving income support
on the grounds of incapacity for work.
However, on 11 November 2012
she was notified that the conversion phase, whereby recipients of incapacity
benefit and income support on the grounds of incapacity were being assessed for
possible entitlement to employment and support allowance, had commenced. As
part of the assessment process she completed a standard questionnaire known as form
ESA50
and was examined by a healthcare professional, on this occasion, a registered
medical practitioner. The examination took place on 18 April
2013
and a report of that date was produced. Thereafter, on 25 June
2013,
the respondent decided that the appellant did not have limited capability for
work
and did not qualify for employment and support allowance.
2. The appellant appealed and indicated that she would like an oral hearing. The effect of rule 27(1) of the Tribunal Procedure (First‑tier Tribunal) (SEC) Rules 2008 is that, if either party requests an oral hearing, there shall be one. That is what happened. However, the appellant did not attend and nor did a representative for the respondent. The tribunal decided the appeal, on 19 March 2014, in the absence of the parties and dismissed it.
3. The appellant had not simply failed to turn up.
She had asked for a postponement of the hearing by sending to the appropriate
HMCTS office a copy of the letter she had received notifying her of the
hearing, having written on that letter an indication that she was unwell “due
to a bad back” and would not be able to attend. She asked for a new hearing
date to be fixed. The request for a postponement was received on
17 March 2014. It appears that, given that the date of the hearing
was imminent, the request was not placed before a district tribunal judge, as
would have been the case had it been received earlier, but was simply faxed to
the venue
where the appeal was due to take place so that the First‑tier Tribunal
(F‑tT) scheduled to hear the case could determine the application.
4. The F‑tT decided to proceed in the
appellant’s absence. As is noted above, it dismissed the appeal. In its
statement
of reasons for decision (
statement
of reasons) it explained its
decision to proceed in this way:
“ 3. On the 19th March 2014 the Tribunal decided the appeal in the absence of the parties. Neither party attended the oral hearing as listed on 19 March 2014 at 11.30 am. There had been a request for a postponement, this was refused, the Tribunal was satisfied that it was able to decide the matter without either party present at the hearing and that it was fair and just to do so taking into account the requirements of Rule 2 and Rule 31 of the Tribunal Procedural (sic) (First‑tier Tribunal) Social Entitlement Chamber Rules 2008. That decision was approved by Mrs Judge Jeffreys on 25 April 2014 when she acknowledged that the Tribunal in making its decision had a full opportunity to consider the papers and the merits of the appeal and decide accordingly.”
5. Pausing there, the reference to the approval by Judge Jeffreys of 25 April 2014 is a reference to a decision taken by that judge, in response to an application by the appellant, to refuse to set aside the F‑tT’s decision of 19 March 2014.
6. I granted permission to appeal because I thought it arguable that the F‑tT had erred in law in failing to adequately explain why it had chosen to proceed in the appellant’s absence. I wondered whether it should have made it clear whether or not it had accepted the appellant’s claim that she was unfit to attend. The respondent has indicated that the appeal is supported on the basis that the F‑tT did not properly explain its reasons for proceeding and did not adequately consider the reasons for the appellant’s non‑attendance.
7. As was acknowledged in AM v Secretary
of
State
for
Work
and
Pensions
(
ESA)
[
2013] UKUT 0563
(
AAC)
the
First‑tier Tribunal will often have to make case management
decisions, including decisions as to whether to adjourn, “on the hoof” and it
has a wide discretion in making such decisions. It is, though, when
considering whether to adjourn or whether to proceed, exercising a judicial
discretion, as was pointed out in JF
v Secretary
of
State
for
Work
and
Pensions
(IS) [2010]
UKUT
267 (
AAC).
8. Under rule 31 of the Tribunal Procedure (First‑tier Tribunal) (SEC) Rules 2008 a tribunal may hear an appeal in absence where an appellant fails to attend a hearing if it is satisfied that that appellant has been properly notified of the hearing (not in issue in this case) and it is in the interests of justice to do so. The question of whether it is or is not in the interests of justice to proceed encompasses a consideration of all relevant matters including those set out in rule 2(2). Those matters constitute what is effectively, a none exhaustive checklist though not all of them will have relevance in any particular case.
9. The statement
of reasons in this case does show
that the F‑tT had in mind the content of rules 2 and 31. They are
both referred to at paragraph 3 which is set out above. However, what is
said there amounts to a bare reference to the rules without any reasoning as
to, for example, which factors to be found in rule 2(2) were thought to be
relevant and why. There is no indication, in the passage set out above or
elsewhere in the
statement
of reasons that any form of balancing act regarding
competing arguments was carried out. In particular, the basis for the
appellant’s postponement request was that she was too ill to attend the
hearing. It is true that her application lacked detail and was not supported
by any medical evidence. Indeed, my experience suggests it is
very
rare that
medical evidence accompanies such postponement or adjournment requests.
Nevertheless, the appellant’s citing of back problems as the reason why she
felt unable to attend was consistent with her history of having had such
problems and, indeed, the F‑tT accepted, elsewhere in its
statement
of reasons,
that she did have such problems. It is not clear from a reading of its
statement
of reasons whether the F‑tT accepted the appellant was unfit to
attend but decided it could fairly and justly determine the appeal anyway
(which would suggest it did not attach
very
much importance to the
consideration set out at rule 2(2)(c) which relates to the need to ensure,
so far as practicable, that the parties are able to participate fully in the
proceedings) or whether it disbelieved her or whether it felt it simply could
not reach a
view
on fitness.
10. I appreciate that in considering postponement and
adjournment requests of this sort where fitness to attend on a particular day
is raised, the First‑tier Tribunal will not normally have very
much
to go on. That was the case here. However, it should at least consider
whether it is able to reach a
view
as to whether an appellant is likely to be
unfit to attend as, if it can do that, that is likely to be a factor which may have,
depending on the circumstances, considerable relevance in the assessment of
what is fair and just. In this case, the appellant, as indicated above, was
relying upon a contention that she was unfit because of a condition in respect
of which there was documentary evidence to say she suffered from and there was
no history of previous adjournment requests. She had attended the medical
examination she had been required to attend. Had it turned its mind to the
issue the F‑tT might, in these circumstances, have concluded that it was
more likely than not that she was telling the truth about being unfit to attend
and this might have influenced its decision. Of course, there will be other
cases where a tribunal might think, perhaps based on incredible contentions or
a history of previous postponement/adjournment requests or other factors that an
appellant is not telling the truth though it may not always be obvious to see
what an appellant seeking to have a decision overturned might gain from wanting
to postpone. There may be other cases where, for
various
reasons, it might be
that a tribunal would conclude it is improbable that, however many
postponements or adjournments there are, a particular appellant will ever
attend an oral hearing. There may be yet other cases where a combination of
circumstances might mean a tribunal could properly proceed notwithstanding
accepted unfitness to attend. Thus, a finding that an appellant is too ill to
attend will not always be determinative though it will be rare for it not to be
a matter of importance. The point, though, is that this F-tT did not make it
clear whether it accepted what the appellant was saying about her unfitness,
whether it rejected it or whether it felt it had insufficient material to
decide the truth or otherwise of her contention. Only after reaching some sort
of
view
on the point was it able to properly consider the request. Thus, it
either failed to reach a
view
on a key point concerning the request or it
failed to explain what that
view
was and, hence, gave inadequate reasons.
11. In light of the above I conclude the F-tT did err in law such that its decision must be set aside.
12. I have decided to remit the case so that the
decision may be re-made by a new and entirely differently constituted F‑tT.
This is because there are further facts to be found and that task is best
undertaken by an expert fact‑finding body which will have medical input
from a medically qualified panel member. I have directed that the new hearing
shall be an oral hearing so the appellant will have a renewed opportunity to
attend and give evidence. The new F‑tT will have to undertake its own
consideration of the evidence, including any further evidence which it might
receive, and reach its own findings of fact which will, in turn, underpin its
own conclusions with respect to the issues raised by the appeal. The F‑tT
will not be bound, in any way, by the previous findings of the first F‑tT.
It will have to consider the appeal on the basis of matters as they stood at
25 June 2013
(the original decision of the
Secretary
of
State under
appeal) and will not be able to take account of changes since that date.
13. In summary, then, the appeal to the Upper Tribunal is allowed. The F‑tT’s decision of 19 March 2014 is set aside. The case is remitted so that the new F‑tT can re-make the decision.
(Signed on the original)
M R Hemingway
Judge of the Upper Tribunal
Dated: 17 April 2015