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