Before:  Upper Tribunal Judge PA Gray

DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

Decision

1. This appeal by the claimant succeeds. Permission to appeal having been given by me on 21 October 2013, in accordance with the provisions of section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007 and rule 40(3) of the Tribunals Procedure (Upper Tribunal) Rules 2008 I set aside the decision of the First-tier Tribunal sitting at Blackburn and made on 22 May 2012 under reference SC 062/13/01030 and refer the matter to a completely differently constituted panel in the Social Entitlement Chamber of the First-tier Tribunal for a fresh hearing and decision in accordance with the directions given below.
2. The parties are agreed that the decision of the tribunal was made in error of law. The appellant has indicated that she is content that I make the above decision without giving reasons.  The respondent has not commented upon that aspect. I will give brief reasons.

Reasons

3.     The issue was a preliminary one for the First-Tier Tribunal as to whether they should hear the case as a paper case, which had been requested by the appellant's representative.  The representative, in the letter requesting a paper hearing, had explained that he was seeking further evidence, and asked for further time in order to do that. He also asked the notification of the date of any paper hearing if possible. I will return to the matter of notification later.

4.     The brief allusion by the judge in preparing the statement of reasons as to the consideration given by the tribunal to whether or not the case should be heard on the papers was, in the context of this case, insufficient. There was no reference to the letter of 15/4/12, and my perusal suggests that it was not added to the tribunal bundle but merely placed on file. There is an onus on the tribunal to check whether or not further evidence has been forthcoming; here there is nothing to indicate here that the tribunal even knew that it was to be provided since the file with the letter on it was probably not at the venue.  Where the file is available at the venue it will routinely be checked by the judge to ensure that there is no information in addition to that provided in advance to the tribunal members.

5.     There is authority that, where a paper hearing was requested in a qualified way by saying that further evidence would be provided by a particular date a tribunal should not hear a paper case prior to that date without informing the parties: CDLA/792/2006.  In this case there was no terminal date mentioned. Such qualified acceptance of a paper hearing cannot be completely open ended by the comment that further evidence will be provided. The parties, and their representatives, have a duty to cooperate with the tribunal; it cannot be just for HMC TS staff or the tribunal itself to establish whether or not something which was promised has been provided.  The parties should keep the tribunal informed as to the position, and probable timing of further evidence in the circumstances.

6.     If promised evidence has not been provided there may be an argument for the tribunal going ahead nonetheless where there has been a significant time between the qualified acceptance notifying that further evidence was being sought and the date of the hearing.  In this case the mischief was rather the tribunal doing so without reference to the possibility of further evidence which had been mentioned, and without obviously considering the time lapse. 

7.     The practicalities of notifying appellants or representatives as to the date of a paper hearing are great. Paper cases are either added to make up a list after the oral cases have been listed or they may be available at venues to be considered by a panel which has an unexpected lull in its list due to a non-attendance.  As such notification is difficult.  The duty to cooperate is rather upon the appellant or representative, who can keep HMC TS informed as I have stated above.

Directions

8. These directions may be added to or amended by the District Tribunal Judge if reviewing the file prior to hearing.
9. The rehearing will be an oral hearing before a panel consisting of a judge and medical member.
10. The parties must send to the clerk to the First-Tier Tribunal at  Liverpool as soon as possible any further relevant written medical or other evidence. If they cannot send that evidence within 2 weeks of the issue of this decision the parties will need to contact that office to let them know that further evidence is to be filed. This is not to suggest that such further evidence is necessary or expected.
11. The appellant must understand that the new tribunal will be looking at her health problems and their effect upon her as of the date of the decision under appeal, 10 November 2012, and for any further medical information to be of assistance it will need to shed light on the problems at that time.
12. The fact that the appeal has succeeded at this stage is not to be taken as any indication as to what the tribunal might decide in due course.
13. The clerk to the First-Tier Tribunal shall send to the presiding Judge of the original panel a copy of my grant of permission to appeal and of this decision, and ensure that the same documents are placed in the tribunal bundle for the benefit of the panel that will hear the case.

PA Gray (signed on the original)

Judge of the Upper Tribunal

31 December 2013