Upper Tribunal (Administrative Appeals Chamber)

Decision of the Upper Tribunal
(Administrative Appeals Chamber)

This decision is given under section 11 of the Tribunals, Courts and Enforcement Act 2007:

The decision of the First-tier Tribunal under reference 144/08/00493, held on 18 February 2009, did not involve the making of an error on a point of law.

Reasons for Decision

1.           This is the first opportunity that the Upper Tribunal has had to comment on the overriding objective in the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (SI No 2685) and, in particular, on its operation in relation to an application for an adjournment. All references are to those rules.

A.          History and background

2.           The claimant was born on 20 June 1939. He made a claim for an attendance allowance on 5 December 2007. His GP provided a report and the claimant was visited by an examining medical practitioner. The doctor could not identify any disabilities relevant to attendance allowance. The examination revealed only slight impairments of the left arm and shoulder and of the lumbar spine. The Secretary of State refused the claim on 25 February 2008. The claimant asked for his case to be reconsidered on 19 March 2008. At that time, he was represented by a money advisor from Help the Aged. The reconsideration confirmed the refusal of the claimant and the case proceeded as an appeal.

3.           The claimant produced a number of pieces of evidence. (i) A list of medication. (ii) Letters relating to his incontinence. (iii) A computer printout from his GP’s records. (iv) A submission from Help the Aged, setting out his disabilities. (v) A reply he had received concerning his complaint about his hospital treatment. At the hearing on 18 February 2009, he was represented by the Disability Law Service. The representative asked the tribunal for time to obtain medical evidence in support of the appeal. The tribunal refused and proceeded to take evidence from the claimant. The record of proceedings runs to 12½ pages and shows that the hearing ran from 11.15 to 12.45. Clearly, from the time taken and the content of the evidence, the tribunal investigated the claimant’s case in detail. At the end of the hearing, it dismissed the appeal. The presiding judge provided a thorough statement of reasons.

4.           The claimant’s representative has not criticised the tribunal’s reasoning on the evidence before it. The grounds of appeal relate solely to the way that the tribunal dealt with the request for time to obtain further evidence. I gave permission to appeal. The Secretary of State has not supported the appeal and the claimant’s representative has commented in reply that the Secretary of State did not address the full grounds of the appeal.

B.          The application and the tribunal’s refusal

5.           The basis for the application was that the claimant’s representative had not met the claimant until 27 January 2009 and had identified the need for medical evidence in rebuttal of the examining medical practitioner’s report. His GP had retired some months earlier and could not write a report, but his practice had agreed to write a report. The request was put to the tribunal in writing on 9 February 2009 but without success -  I cannot find a copy on the First-tier Tribunal’s file. The request was renewed at the hearing.

6.           The presiding judge gave the tribunal’s reasons for refusing the application:

‘The tribunal decided that this [further evidence] would not assist them as the current GP had not been treating the claimant at the date of the decision, there was a report from the previous GP … who had known the appellant for several years before he retired, and had reported close to the date of the decision, there was a patient summary from his GP records post dating that, and the oral evidence from the appellant and his wife was also taken into account. The tribunal also took into account the delay in asking for this postponement given the appellant had first had advice on his appeal in June 2008, and the costs of postponing the hearing at this late stage. The appellant had been to Bangladesh for about 11 weeks from August 2008 but would have been back by October 2008.’

C.          The law

7.           The rules of procedure give the First-tier Tribunal extensive case management powers. Rule 5 provides:

‘5      Case management powers

         (1)     Subject to the provisions of the 2007 Act and any other enactment, the Tribunal may regulate its own procedure.

(2)     The Tribunal may give a direction in relation to the conduct or disposal of proceedings at any time, including a direction amending, suspending or setting aside an earlier direction.

(3)     In particular, and without restricting the general powers in paragraphs (1) and (2), the Tribunal may—

…

(h)     adjourn or postpone a hearing; …’

8.           It is not necessary for me to decide what the difference is between a postponement and an adjournment or to decide whether different principles apply to each. It is sufficient to say that, regardless of whether the request is properly classified as an application for an adjournment or a postponement, I cannot see that there is any difference in the principles that apply in the circumstances of this case.

9.           The rules, like all subordinate legislation, must be interpreted to further their purpose. In accordance with modern rules of procedure, rule 2 identifies that purpose. It goes on to impose a duty on the parties to co-operate with the tribunal and each other:

‘2      Overriding objective and parties’ obligation to co-operate with the Tribunal

         (1)     The overriding objective of these Rules is to enable the Tribunal to deal with cases fairly and justly.

(2)     Dealing with a case fairly and justly includes—

(a)     dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties;

(b)     avoiding unnecessary formality and seeking flexibility in the proceedings;

(c)     ensuring, so far as practicable, that the parties are able to participate fully in the proceedings;

(d)     using any special expertise of the Tribunal effectively; and

(e)     avoiding delay, so far as compatible with proper consideration of the issues.

(3)     The Tribunal must seek to give effect to the overriding objective when it—

(a)     exercises any power under these Rules; or

(b)     interprets any rule or practice direction.

(4)     Parties must—

(a)     help the Tribunal to further the overriding objective; and

(b)     co-operate with the Tribunal generally.’

10.        The use of ‘includes’ in paragraph (2) indicates that the factors listed are illustrative, not comprehensive. Their choice reflects the duties of the Senior President and the Tribunal Procedure Committee in sections 2(3) and 22(4) of the Tribunals, Courts and Enforcement Act 2007. The duties imposed on the parties ties them to the same considerations that must inform the tribunal’s approach to its procedure in pursuance of the overriding objective.

11.        It is unlikely that these principles will dictate the decision for the tribunal. In the majority of cases, there will be factors pointing both for and against a proposed adjournment. The nature of the decision is likely to require the tribunal to undertake a balancing exercise between competing considerations. And it is the nature of such an exercise that different tribunals might properly make different assessments of the factors. On appeal, the Upper Tribunal will not find an error of law simply because it would have made a different assessment. That is in accordance with the approach taken by the courts to appeals on issues of judgment (Bellenden v Satterthwaite [1948] 1 All ER 343 at 345) and on the exercise of case management powers (Grupo Torras SA v Al Sabah (No 2) reported in The Times on 17 April 1997).

12.        The introduction of the overriding objective into the rules of procedure governing social security cases frees tribunals from the binding effect of previous authorities. They may continue to be relevant, but only to the extent that their principles are compatible with the overriding objective (Albon (trading as NA Carriage Co) v Naza Motor Trading Sdn Bhd (No 5) [2008] 1 WLR 2380 at [18]).

13.        The overriding objective did not apply to these proceedings before 3 November 2008, when the First-tier Tribunal came into existence and the rules of procedure came into force. I will, therefore, only consider their application from that date.

D.          Applying the law

14.        How should a tribunal consider whether to adjourn a hearing using the overriding objective? The answer inevitably begins with the words ‘it all depends’. Having said that, it is likely that the tribunal’s inquiries and consideration will focus on three issues.

What would be the benefit of an adjournment?

15.        The starting point is the reason for the application. In this case, it was to obtain further evidence. A tribunal is always entitled to consider whether this evidence is likely to be helpful. In making its assessment, it is relevant to take into account: (i) the evidence that is already before the tribunal; (ii) the evidence that is likely to be obtained if the proceedings are adjourned; (iii) how long it will take to obtain it; and (iv) whether the tribunal could use its expertise to compensate for the lack of additional evidence.

16.        As to (i), the tribunal had the evidence from the examining medical practitioner, which dealt expressly with issues of disablement relevant to attendance allowance. That evidence was obtained by the other party, but that of itself is not necessarily a criticism. A report by an examining medical practitioner is supposed to be objective and it can be easy to tell from the content of the report whether it reflects a detailed interview, thorough examination and perceptive analysis of the claimant’s abilities and difficulties or something altogether less admirable.

17.        As to (ii), the tribunal already had a factual report from the former, now retired, GP as well as a printout from the GP’s records. It is likely that the records would contain more detail than on the printout. However, the GP had not included anything significant in the factual report. It was unlikely that a different GP writing a report on the basis of the claimant’s records would have much to say that was both new and relevant. Moreover, GPs’ reports are usually helpful on matters of diagnosis and treatment, but less so on disablement. The former were not in dispute in this case.

18.        As to (iii), the new GP had agreed to write a report, so this was not a speculative request. It was reasonable to assume that it could be supplied relatively quickly. It was unlikely to lead to further delay.

19.        As to (iv), the issue for the tribunal was the nature and extent of the claimant’s disablement from his accepted conditions with the benefit of his medication. The tribunal had available to it the expertise of a judge, a doctor and someone with practical experience of the problems of disability. It was in a good position, with the claimant, his wife and daughter in attendance, to make its own inquiries. The record of proceedings speaks to the thoroughness with which the tribunal undertook that responsibility.

Why was the party not ready to proceed?

20.        Parties are under a duty to co-operate with the tribunal generally. That involves ensuring as far as possible that their case is ready by the time of the hearing. The time taken for this case to be listed was somewhat longer than usual in social security cases and for part of that time the claimant was abroad. However, confining myself to the period from 3 November 2008, there was still over three and a half months in which to prepare. There was no explanation of why the claimant changed representatives or of why nothing was done sooner to obtain evidence. It is relevant to consider the advice given to claimants by the tribunal when an appeal is lodged and the fact that both representatives were from long-established, competent organisations. The Disability Law Service may have been unable to act more promptly than they did. But the tribunal had to take account of the total time that the claimant had had.  

What impact will an adjournment have on the other party and the operation of the tribunal system?

21.        The interests of the claimant are likely to be resolved when considering the value of an adjournment.

22.        As to the other party, this is likely to be Secretary of State in a social security case. The  Secretary of State is not a contentious party to the proceedings. By virtue of that status and the duty to co-operate, the Secretary of State’s only interest is in assisting the tribunal to ensure that it makes the correct decision in fact and law on the claimant’s entitlement to benefit. In an overpayment liability case, the Secretary of State may be concerned to avoid tactical manoeuvres designed to put off the day when an overpayment has to be repaid. But that is not the case here.

23.        The interests of the functioning of the tribunal system as a whole are unlikely to be of great significance in the vast majority of cases. It will surely be exceptional for an adjournment that would otherwise be granted to be refused solely on account of the needs of the system as a whole.

E.          Did the tribunal make an error of law?

24.        No, it did not. I can find no significant error in the tribunal’s approach to the case. It took account of the grounds for the application and made an assessment of the likely value that would be obtained by an adjournment. That was the key consideration. Its analysis is rational. It took advantage of the tribunal’s flexibility in using its members’ combined special expertise to avoid delay and to allow the claimant full and effective participation in the proceedings. All of those factors are within the scope of the overriding objective. By using its expertise, it reconciled fairness and efficiency with making the proceedings accessible to a claimant whose evidence was not complete. All of those factors reflect the duties of the Senior President.

F.           Disposal

25.        I dismiss the appeal.