Upper Tribunal (Administrative Appeals Chamber)

THE UPPER TRIBUNAL Appeal No. CDLA 1636 2011 

ADMINISTRATIVE APPEALS CHAMBER

DF v SSWP (DLA)

DECISION

The appeal is allowed.

For the reasons below, the decision of the First-tier Tribunal is set aside.

I remit the case to the First-tier Tribunal for a new hearing in accordance with the directions below:

Tribunals, Courts and Enforcement Act 2007 section 12(2)(b)(i).

REASONS FOR DECISION

1 The claimant (F) is appealing against a decision of the First-tier Tribunal sitting at Sutton on 16 02 2011 under reference 154 10 06599.

2 I indicated an intention to set the decision of the First-tier Tribunal aside when granting permission to appeal, indicating my reasons. The Secretary of State for Work and Pensions agreed that I should set aside the decision for those reasons. F objected and set out her views at length. I have therefore reconsidered the case and set out my reasons more fully. But they are essentially the same as those given when granting permission. They give F what she wants - a proper hearing by the tribunal. So I waive any further procedural requirements and make the decision without additional delay.  It is also for this reason that I am not holding a hearing of this appeal myself as requested by F. The case needs to be heard fully by a tribunal with expert membership as soon as it can be listed. But F is entitled to have the record set straight.

Background to the appeal

3 F claimed disability living allowance from and including 2 03 2010. Her claim indicated both care and mobility needs. A general practitioner report was supportive of some needs. The decision maker acting for the Secretary of State refused the claim. F appealed and asked for an oral hearing. A full written submission was made for her to the tribunal by a citizen’s advice bureau (CAB).

4 The appeal was listed before a tribunal on 16 02 2011. The record of proceedings records: “Did not attend. Determined after waiting for 45 minutes at 12.25.” The tribunal refused the appeal. The decision notice, issued that day, states that:

“The tribunal accepted that [F] had chosen not to attend her appeal hearing today to offer oral evidence or to submit further medical evidence on her behalf.”

There is nothing in the papers before the tribunal to indicate that F had in any sense “chosen” not to attend.

5 The CAB promptly asked for the record of proceedings and statement of reasons for the hearing. These were issued several weeks later. The statement of reasons is lengthy, but most of it is irrelevant to this appeal. It deals with F’s absence as follows:

“[8] [F] had requested an oral hearing of her appeal. She failed to give evidence. She failed to contact the tribunal to explain her absence. After waiting for 45 minutes for [F] to appear or to make contact, the tribunal determined the appeal in her absence. …

[18] The tribunal accepted that [F] had chosen not to appear to give oral evidence”

.

6 Some weeks before this was issued F wrote to the tribunal stating:

“I apologise for the delay in my letter to explain for my lateness at the tribunal dated 16 02 2011. I had been sent by the Jobcentre to a job interview, as this is my only income I could not afford to let them refuse and have them stop my money. As the interview was at 9.30 am I believed I had enough time to attend both. Due to the interview running late my difficulties getting round therefore I was made late for the time of the appeal.”

This letter was received on 14 03 2011. It was referred to a duty First-tier Tribunal judge on 5 05 2011. This was some days after the original judge prepared the statement of reasons for the case but before that statement was issued.

7 The duty judge treated the letter as a request to set aside the tribunal’s decision and refused the request. The reasons for refusal set out the terms of Rule 37 of the relevant Tribunal Rules (the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 – “the Rules”). The judge’s reasons confirmed that F was not present at the hearing despite asking for an oral hearing. The judge therefore plainly accepted that Rule 37(2)(c) (absence of a party) was met. Accordingly, consideration must be given to Rule 37(1)(a) - the power to set aside “if the tribunal considers that it is in the interests of justice to do so”. There is no indication that the judge expressly considered this. Instead, the judge relied in general terms on Rule 2 of the Rules. It is not clear to me which - if any - part of Rule 2 was in the judge’s mind such that the requirements of Rule 37 could be overridden.

8 The duty judge made it clear that F would have to appeal to the Upper Tribunal. She did so, but not before attempting again to set the record straight. I quote from F’s letter to the First-tier Tribunal in response to its decisions.  

“… on the day of the hearing I was late due to an interview, as the manager of […]

never showed up at 9am like she was supposed to so there for made me late. I was angry about that but there was not much I could do as this interview was set up with […] Recruiters and I was worried had I not gone to both they would have stopped my money. When I arrived at the tribunal, I had to give my name at Reception, then went off up a lift got a security screening and gave my name to the guy at the table, sat down at 12.30 exactly. Eventually a man came out and said I was too late.”

9 That has the ring of truth. I accept it. It means that F was identified as being in the tribunal building at the time the tribunal was considering her case. That of itself makes the hearing in breach of natural justice.

10 The above clearly suggests that the tribunal was told of F’s late arrival. Even if the tribunal had dealt with F’s case very swiftly when it said it did and had moved on to another case before the clerk came in, it still should have dealt with F’s late arrival. It should have dealt with the matter before it closed the session (and not merely that appeal). It may be that it would have been unable to hear the case fully. If so, it should have adjourned it.

11 In any event, the decision had not been issued when F arrived. It was therefore not final. The tribunal should not have allowed its decision to be issued if it knew or should have known – and the record shows that it (or at least its clerk, which for these purposes is enough) knew – that the appellant was present in the building when the decision was taken. At that time the tribunal was aware that it was factually incorrect to assume that the appellant chose to be absent. She plainly did not choose to be absent. She was present. And the tribunal (if not the tribunal judge) knew this.

12 In all those circumstances, I must allow the appeal. It is plainly wrong in law. Moreover, I cannot see how it can be said to be in the interests of justice not to set aside the decision. Nor can I see anything in Rule 2 of the Rules that justifies such an approach. Rule 2 expressly directs tribunals to avoid unnecessary formality and to seek flexibility. It mandates tribunals to ensure that so far as practicable the parties are able to participate fully in the proceedings. The outcome of the process below is that F was forced to appeal to the Upper Tribunal. Rule 2 also mandates proportionality and the avoidance of delay. This must now go back to another tribunal but only after much time has been spent on it by this jurisdiction and below and a further delay of at least six months has been added to F’s appeal.

13 F is plainly and understandably angry about the way she was treated. In my view she has good grounds to feel annoyed when she was told that her appeal was refused because she had chosen not to attend a hearing when she was actually in the building at the time, having been understandably delayed getting there. My directions below will allow her belatedly to have the hearing she plainly wanted at the time. I can only express regret that it has taken this long to put the record straight.

14 I add one final point, as F has had difficulty obtaining further advice from her CAB.  

F states in her letters that she has had surgery since her claim was made and that she has problems resulting from that. It may be that she should consider making a new claim based on the new circumstances, and should get medical evidence of this. But the tribunal hearing this appeal cannot consider that. It is bound by law only to look at matters up to and including the original date of decision in April 2010.

DIRECTIONS

A The reconsideration will be at an oral hearing.

B The reconsideration should not involve any judge or other member who has previously been a member of a tribunal involved in this appeal.

C The appellant is reminded that the First-tier Tribunal can only deal with the appeal as at the date of the original decision under appeal.

D If the appellant has any further written evidence, and in particular medical evidence, to put before the First-tier Tribunal, this should be sent to the tribunal within one month of the issue of this decision.

These directions are subject to any later direction by a tribunal judge.

David Williams

Upper Tribunal Judge

3 11 2011

[Signed on the original on the date stated]

.