-A A +A
Select color visibility that suits you Basic theme Dark theme Darker theme Text only

New ESA decision on tribunal hearing appeal in claimants absence

14 November 2017

This page contains our latest summaries of disability related upper tribunal and court decisions

View all summaries from April 2017

View summaries dating before April 2017

Employment and support allowance

CE/1153/2017: Interests of justice - whether tribunal’s reasons for hearing appeal in claimant’s absence adequate

Upper Tribunal Judge Rowland

The claimant did not attend her hearing but telephoned to say, that she was too unwell to attend.   On the day before the rearranged hearing, the First-tier Tribunal received from the claimant, a letter from a doctor, saying only :

“The [sic] reason of cancer and severe depressive disorders the patient [the claimant] cannot appear in HM Court & Tribunals Service on 07/09/2016.”  

A clerk telephoned the claimant and noted in the computer log:

“Spoke to Appl over the phone she confirmed that she would like for her case to be heard in absence.”

The First-tier Tribunal decided to hear and dismiss her case in the claimant’s absence.  In the decision notice, it said:

“[The claimant] … stated that she would not be attending the hearing due to ill health.  She provided a letter by post a letter from a private doctor.  The Tribunal considered the overriding objective in Rule 2 and Rule 31 of the Tribunal Procedure (First-tier Tribunal) (SEC) Rules 2008 and concluded that it was in the interests of justice to proceed in her absence.”

On granting the claimant permission because it was arguable that the First-tier Tribunal’s reasons for not adjourning the hearing were not adequate Judge Rowland said:

“1. ….  It is not entirely clear what the First-tier Tribunal meant by there being “sufficient medical evidence in the bundle to decide the appeal without [the claimant’s] presence and oral evidence”.  In the sense that there was enough evidence to make a decision, the First-tier Tribunal may have been right, but it is arguable that the question was whether there was sufficient evidence to enable it to do so fairly if the decision was to be adverse to her. 

It is easy to see why, having decided to deal with the case on the papers, the First-tier Tribunal decided as it did in the light of the written evidence and, in particular, the health care professional’s report and it was right that the claimant had not produced medical evidence to show that the health care professional was wrong. 

On the other hand, it is arguable that the point of a claimant having a right to an oral hearing is that it should not be necessary to produce such evidence and such a hearing gives the claimant an opportunity to explain in person why he or she disagrees with the health care professional, which many claimants manage better orally than in writing.”

The Secretary of State submitted to Judge Rowland that the First-tier Tribunal had erred for the reasons he suggested.

Judge Rowland identifies that relevant legislation to the appeal includes

Rules 27 and 31 of The Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (SI 2008/2685) that provide:

“27.

(1) Subject to the following paragraphs, the Tribunal must hold a hearing

before making a decision which disposes of proceedings unless—

(a) each party has consented to, or has not objected to, the matter being

decided without a hearing; and

(b) the Tribunal considers that it is able to decide the matter without a hearing.

31.

If a party fails to attend a hearing the Tribunal may proceed with the hearing if the Tribunal —

(a) is satisfied that the party has been notified of the hearing or that reasonable

steps have been taken to notify the party of the hearing; and

(b)considers that it is in the interests of justice to proceed with the hearing.”

In setting aside the First-tier Tribunal’s decision, Judge Rowland says:

“In the present case, the First-tier Tribunal did not make a finding as to whether the claimant could reasonably have been expected to attend the hearing.  It may be that its references to the letter received the day before the hearing having come from a “private doctor” and to the lack of evidence from the surgeon are an indication that it was sceptical of her claim to be too unwell, but it did not say so and, anyway, there was the factor of her depression to consider. 

Making such a finding is important because, if the claimant had a good reason for not being able to attend, it would raise, under rule 27, the question whether her request that the case be determined in her absence should have been accepted at face value or, under rule 31, the question whether it was permissible to decide the case in her absence. 

On the other hand, if she did not have a good reason for not attending, that would go into the balance when deciding whether the First-tier Tribunal should proceed without a hearing or in her absence.  The First-tier Tribunal is entitled to take a robust approach when considering on the basis of limited evidence whether a claimant has a good reason for not attending, provided that it takes a correspondingly liberal approach to subsequent applications for setting aside in cases where compelling medical evidence is subsequently provided and there is, or may be, an explanation for it not having been provided earlier."

Judge Rowland also finds that the tribunal erred as It did not consider whether the evidence before it was not only sufficient to enable it to reach a decision but was also sufficient to enable it to do so fairly in the absence of the claimant.:

“I accept that it did refer to the interests of justice in its decision notice, but it did not say there what it had taken into account and I do not consider that the reasoning overall, with its indecision as to whether rule 27 or rule 31 applied, is sufficient.  Moreover, there is an additional factor in this case.

In a case where a claimant has asked for a hearing and has a very good reason for not being able to attend a hearing when it takes place, the First-tier Tribunal is unlikely to be entitled to proceed in the claimant’s absence unless either it is prepared to allow the appeal or it is clear that the appeal has no reasonable prospect of success, such that it could have been struck out without a hearing under rule 8(3)(c) (see rule 27(3)).

… Where the First-tier Tribunal considers that it has sufficient evidence upon which to make a decision, one frequently important consideration when deciding whether to adjourn due to the absence of the claimant is how likely it is that oral evidence from the claimant would make a difference to the outcome.”  

Ken Butler

14 November 2017

Was this page useful - Yes or No?