Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CE/3482/2012

ADMINISTRATIVE APPEALS CHAMBER

Before E A L BANO

Decision:  My decision is that the decision of the First-tier Tribunal involved the making of an error on a point of law. I set aside the tribunal’s decision and remit the case for hearing before a differently constituted tribunal.

REASONS FOR DECISION

1. The claimant, who had been in receipt of incapacity benefit, appealed against a decision made on 16 December 2011 refusing him an award of ESA.  The appeal was listed for hearing on 12 July 2012, but on 21 June a welfare rights officer acting on the claimant’s behalf wrote to the tribunal asking for a postponement because he would be unable to prepare the case in the time available and had other commitments on the day fixed for the hearing, and because the claimant’s medical records were being obtained and the representative believed that further medical evidence would be vital for the claimant’s appeal.  The postponement request was however refused by a district judge, without reasons being given, on 26 June 2012.

2. The claimant attended the hearing accompanied by his wife and an interpreter.  According to the record of proceedings, the claimant’s wife told the tribunal at the outset of the hearing that the claimant had been to the welfare rights office three to four weeks previously and that a postponement request had been refused.  The tribunal again refused to adjourn the hearing on the basis that: i) it was the applicant’s evidence which was the most important, and ii)  many applicants were unrepresented.

3. On 13 November 2012 I gave permission to appeal against the tribunal’s decision dismissing the appeal because I considered that it was arguable that the correct questions for the tribunal were whether it was in the interests of justice to adjourn for the claimant’s representative to obtain the further medical evidence which he wished to adduce and whether, in the particular circumstances of the case, the claimant would be materially disadvantaged if he was not represented at the hearing  The appeal has been supported in a submission on behalf of the Secretary of State dated 13 March 2013.

4.  I am satisfied that the appeal must be allowed for the reasons identified in my grant of permission to appeal.  In considering whether to exercise the power to adjourn conferred by rule 5(3)(h) of the Tribunal Procedure (First-tier Tribunal) (SEC) Rules 2008, the tribunal is required by rule 2(3) to give effect to the overriding objective of dealing with cases fairly and justly.  In relation to adjourning for additional medical evidence to be obtained, the question for the tribunal was not whether there was already some medical evidence on which the tribunal could base its decision, but whether fairness required that the claimant should be given an opportunity of obtaining the additional evidence which the claimant’s representative considered to be important.  The tribunal might well have concluded that justice could be done without obtaining any further medical evidence, but in order to reach that conclusion they would need to investigate what the further evidence consisted of and to consider how it might add to the evidence already available, in accordance with the guidance given by Judge Jacobs in MA v SSWP [2009] UKUT 211 (AAC).

5.  So far as representation was concerned, it is of course correct that tribunal procedures are designed to enable parties to represent themselves and, as the tribunal observed, many (if not most) appellants are unrepresented.  However, rule 11 of the Rules of Procedure gives a party the right to a representative of his or her choice and there is no general presumption that a representative is unnecessary in tribunal proceedings.  There may be cases where the lack of a representative would place an appellant at a significant disadvantage and the discretion to adjourn or postpone must be exercised in relation to the facts of the individual case-see Evans v Bartlam [1937] AC 473.  In this case the Form ESA 50 had been completed by the appellant’s son and his wife had acted as his interpreter at the medical examination.  The appellant had claimed points for mental health descriptors and it may be that an experienced representative who had had an opportunity of preparing the case in advance would have helped the appellant in identifying any misunderstandings and in bringing out significant evidence.  The tribunal could have concluded that the interests of justice did not require the claimant to be professionally represented, but their failure to consider whether to adjourn to allow the appellant to be represented in the circumstances of the particular case also amounted in my judgement to an error of law.

5.  I therefore respectfully agree with the Secretary of State’s representative that the tribunal’s decision should be set aside and do so accordingly.  The case will have to be reheard in its entirety by a fresh tribunal.

E A L BANO

22 May 2013