IN THE UPPER TRIBUNAL Case No  CE/3804/2012

ADMINISTRATIVE APPEALS CHAMBER

Before UPPER TRIBUNAL JUDGE WARD

Decision:  The appeal is allowed.  The decision of the First-tier Tribunal on 17 July 2012 under reference SC068/11/08961, refusing to set aside the substantive decision of the tribunal dated 2 July 2012, involved the making of an error on a point of law and is itself set aside.   Acting under section 12(2)(b) of the Tribunals, Courts and Enforcement Act 2007, I substitute the decision which the tribunal ought to have given, namely:

The tribunal’s decision of 2 July 2012 is set aside.

This means the case must now go back to the First-tier Tribunal for a hearing which the claimant can attend.

REASONS FOR DECISION

1. Both the claimant’s representative and the Secretary of State have expressed the view that the decision of the tribunal refusing to set aside involved the making of an error on a point of law and have agreed to a rehearing.  That makes it unnecessary to set out the history of the case or to analyse the whole of the evidence or arguments in detail.  I need only deal with the reason why I am setting aside the tribunal’s decision.

2. The claimant, a woman in her sixties with a substantial range of health conditions which I need not set out, had appealed against a decision dated 19 August 2011 that she scored 0 points under the work capability assessment.

3. Her appeal had first been listed for 10 April 2012.  On that occasion the claimant’s son and daughter appeared to explain that their mother could not do so as she had been admitted to hospital with a lung condition.  The tribunal adjourned to allow the claimant to attend. 

4. The case was relisted on 2 July 2012. The claimant was not present and the tribunal received no request for an adjournment.  Having waited until 20 minutes after the listed start time, it decided to go ahead and dismissed the appeal.

5. Shortly afterwards an application for set aside  was made by the welfare benefits officer attached to the claimant’s housing provider on the ground that the claimant had not received notification that the appeal was to be heard and so did not attend.

6. On 17 July 2012 a decision was taken refusing set aside in the following terms:

“1. The Tribunal decision is not set aside.

2. This is because none of the conditions set out in Rule 37(2) is satisfied.  There was no procedural irregularity.

3. Appellant has not attended last or previous tribunal.  Satisfied she was informed of hearing.”

7. On the claimant’s application for permission to appeal against the substantive decision, I gave permission also in respect of the decision not to set aside.

8. Mr Spencer, for the Secretary of State, in a constructive submission, supports the appeal.  He refers me to Judge Lane’s succinct statement of the correct approach to rule 37 of the First-tier Tribunal’s rules of procedure in SO Abraham v LB Ealing [2012] UKUT 437 (AAC):

“We must go back to rule 37 again.  The critical features of the rule are (i) that one of the four conditions in (2) is made out; (ii) it is in the interests of justice to set aside the decision and (iii) that the rule is discretionary, not mandatory.” 

As the condition in rule 37(2)(c) is that ”a party, or a party’s representative, was not present at a hearing related to the proceedings”, the decision not to set aside plainly erred in law.  Neither the claimant, nor the Secretary of State, nor representatives of either of them, was present.  The condition was met.  The tribunal only needed to apply the interests of justice test.

9. To the extent that paragraph 3 of the decision represents an attempt to do so, I find that it also was erroneous in law.  There is no indication at all that the judge was mindful of the fact that the first tribunal had been adjourned because of the demonstrable illness of the claimant, nor that, while she was in hospital, her son and daughter had attended the tribunal on her behalf to provide a personal explanation of their mother’s difficulty. The only reasonable conclusion from that was that she did wish to have the opportunity to attend a hearing and, that being so, I agree in the circumstances of this case with Mr Spencer’s submission that there is no reason to doubt the claimant’s statement that the notification of the second hearing did not arrive.

10. In substituting a decision I bear in mind the principle pointed out in paragraph 32 of DG v Secretary of State for Work and Pensions (DLA) [2011] UKUT 14 (AAC):

“32. I repeat that a tribunal may well be entitled to take a robust approach.  However, if a robust approach is taken to a party’s non- attendance at a hearing, then, depending on the circumstances, it may be appropriate to be more discerning and flexible in considering a subsequent application for a set aside.  As the Employment Appeal Tribunal has put it, “it would appear to be a necessary concomitant of the more stringent attitude [to non-attendance] ... that there be the less stringent attitude on a review if a party who has not attended comes forward with a genuine and full explanation and shows that the original hearing was not one which from which he deliberately absented himself” (see Cooke v Glenrose Fish Co [2004] ICR 1188 at paragraph 21(1)).

I also bear in mind that the appeal is not trivial or obviously hopeless and has not been overtaken by events.

11. The effect of my decision is that the decision of 2 July 2012 no longer stands.  The case will go back to the First-tier Tribunal for a further hearing.  That makes it unnecessary for me to consider further the grounds of appeal in relation to the decision of 2 July 2012 which has now fallen away.

(signed)

C.G.Ward

Judge of the Upper Tribunal

3 May 2013