DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

The DECISION of the Upper Tribunal is to allow the appeal by the Appellant.

The decision of the Brighton First-tier Tribunal dated 17 January 2013 under file reference SC177/12/04329 involves an error on a point of law. The First-tier Tribunal's decision is set aside.

The Upper Tribunal is not in a position to re-make the decision under appeal. It therefore follows that the Appellant's appeal against the Secretary of State's decision dated 18 August 2012 is remitted to be re-heard by a different First-tier Tribunal, subject to the Directions below.

This decision is given under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007.

DIRECTIONS

The following directions apply to the hearing:

(1) The appeal should be considered at an oral hearing.

(2) The new First-tier Tribunal should not involve the tribunal judge who was previously been involved in considering this appeal on 17 January 2013 .

(3) The Appellant is reminded that by law the tribunal can only deal with the appeal, including his health and other circumstances, as they were at the date of the original decision by the Secretary of State under appeal (namely 18 August 2012).

(4) If the Appellant has any further written evidence to put before the tribunal, in particular medical evidence, this should be sent to the tribunal office in Sutton within one month of the issue of this decision. Any such further evidence will have to relate to the circumstances as they were at the date of the original decision of the Secretary of State under appeal (see Direction (3) above).

(5) The new First-tier Tribunal is not bound in any way by the decision of the previous tribunal. Depending on the findings of fact it makes, the new tribunal may reach the same or a different outcome to the previous tribunal.

These Directions may be supplemented by later directions by a Tribunal Judge in the Social Entitlement Chamber of the First-tier Tribunal.

REASONS FOR DECISION

The issue on this appeal

1. The issue on this appeal concerns a potentially misleading passage in the HMCTS guidance leaflet entitled "YOUR APPEAL - What Happens Next" (Information Leaflet V6, April 2012). I decide that in the circumstances of this case the passage in question led to an inadvertent breach of justice by the First-tier Tribunal ("the tribunal").

2. The passage in question appears at the foot of p.1 of the Information Leaflet V6.

'When we receive your completed Enquiry Form

What happens next depends on whether you have asked for a hearing or not. If you have said on the Form that you do not want a hearing, we will arrange for the appeal papers to be placed before the Tribunal for its decision. By "the appeal papers" we mean the bundle of documents sent to you by the department (or council) against whom you are appealing, plus any additional documents you send us with your completed Enquiry Form. We will not notify you of the date the papers go before the Tribunal, as your case will be directed to the next available Tribunal. We will then send you the Tribunal's written decision.

If you have said on the Form that you want a hearing, you need to begin preparing for the hearing, if you haven't already started. You should receive notification of the hearing date, in writing, as shown on the enclosed Enquiry Form covering letter.

When you receive the hearing notification letter and find that you can't attend on that date, you should tell us in writing straight away, so that we can make the necessary arrangements. For instance, if an interpreter has been booked, we can cancel that booking, enabling us to put another case to the hearing that day.'

3. The first two paragraphs under the heading When we receive your completed Enquiry Form are included simply to set the context. The passage in issue is the final paragraph ("When you receive the hearing notification...").

The background to this appeal

4. The Appellant had been in receipt of ESA since 2009. He attended for a medical examination in May and then again in early June 2012. No examination took place on either occasion. The first time he was sent home as Medical Services cancelled the appointment. On the second occasion an interpreter had been requested but not provided. The Appellant was then called for a third appointment to take place on 26 June 2012. He failed to attend.

5. The Secretary of State decided that the Appellant did not have good cause for his non-attendance and that he was no longer entitled to ESA. The Appellant appealed to the tribunal.

6. On 2 November 2012 the tribunal office wrote to the Appellant about his appeal, enclosing a copy of HMCTS Information Leaflet V6.

7. On 17 December 2012 the tribunal office wrote again, notifying the Appellant that the hearing date was 17 January 2013.

8. On 10 January 2013 the Appellant replied to the tribunal office, stating simply "With reference to your notification dated 17/12/2012, I am contacting you to advise that I will be unable to attend the hearing of 17 January 2013." It seems that on receipt of that letter HMCTS staff tried to contact the Appellant to see why he could not attend and whether he wished the hearing to proceed in his absence, but were unable to make contact.

9. The tribunal went ahead with the hearing of the appeal, in the Appellant's absence, on 17 January 2013. The judge noted his letter of 17 January 2013 but decided that he had had ample time to make any necessary arrangements, the issues were addressed in the papers and it was not in the interests of justice to adjourn.

10. The tribunal decided that the Appellant had not shown good cause; as the judge put it, "the fact he attended 2 previous ineffective appointments is not good cause for his failure to attend".

11. The District Tribunal Judge subsequently refused permission to appeal to the Upper Tribunal, pointing out that the Appellant, in his letter, had not asked for a postponement or given any reason for being unable to attend the tribunal hearing.

The proceedings before the Upper Tribunal

12. The Appellant set out lengthy and detailed grounds of appeal. I gave him permission to appeal, observing in part as follows:

'In particular, on a preliminary analysis the Appellant's best point seems to be that which he describes as "estoppel" (para. 8(i)-(iv), at pp.41-42 of the Upper Tribunal (UT) file, and para. 9(i)). In other words, did the wording of the information leaflet V6 (in particular the last para on p.1 of that leaflet, at p.87 of UT file) lead the Appellant reasonably to believe that he simply needed to say that he could not attend and the office would allocate him another date as part of the "necessary arrangements"? I have to say the wording on that leaflet is not ideal, and seems preoccupied with the tribunal's ability to manage its list. However, was a reasonable implication that the slot would be vacated and another time allocated? I accept that the letter of 17 December 2012 states that "if you do not attend, the tribunal may decide the appeal in your absence" (p.96), but that might be seen as subject to the proviso that a claimant had not notified the tribunal of his or her inability to attend.'

13. The Appellant, in his further comments, explained that he lacked confidence in going to unfamiliar places. He had started arranging for representation soon after getting the notice of the hearing date. He adds "The Legal Advice Centre was approached on 20 December 2012 but it could answer on 9 January 2013 only. They were unable to make a referral to a representative as they needed fourteen working days before the hearing date .. Therefore, I informed the tribunal forthwith of my non- attendance at the hearing with my letter of 10 January 2013." He further argued that the Information Leaflet was misleading; it was "devoid of any advice for the appellant who is unable to attend the hearing to request a postponement and submit the relevant reasons by a set deadline. If that advice was included in the leaflet, I would have requested the postponement and submitted the relevant reasons" (emphasis in the original).

14. Ms Zarina Butt, who now acts for the Secretary of State in these proceedings before the Upper Tribunal, supports the appeal from the decision of the tribunal on this basis. She agrees that the Information Leaflet is ambiguous and in particular does not advise appellants about giving reasons for non-attendance or asking for a postponement. In the circumstances, she concludes that the tribunal did not consider fully whether it was appropriate to proceed. She suggests that the tribunal's decision is set aside and the matter is remitted (or sent back) for re-hearing to a new tribunal.

15. I formally find that the tribunal's decision involves an error of law for the reason outlined above and as supported by the Secretary of State's representative. The relevant passage in the Information Leaflet has the potential to be, and in this case was, misleading. Appellants are often criticised by tribunals for not reading official leaflets. This Appellant read the HMCTS leaflet and acted in accordance with it. The tribunal office cannot assume he had full familiarity with the tribunal process. The passage in question gives the type of message that people are familiar with from hospital appointment letters, namely let us know if you cannot attend (with the inference that a further appointment will be arranged). Tribunals are not hospitals, but the Information Leaflet fails adequately to explain the relevant procedures. The passage in question needs to be rewritten primarily with the user in mind, and not the

convenience of the administration.

What happens next: the new First-tier Tribunal

16. There will, therefore, need to be a fresh hearing of the appeal before a new tribunal. Although I am setting aside this tribunal's decision, I should make it clear that I am making no finding, nor indeed expressing any view, on whether or not the Appellant had good cause for not attending the medical on 26 June 2012. That is a matter for the good judgement of the new tribunal. That tribunal must review all the relevant evidence and make its own findings of fact.

17. Thus the fact that this appeal to the Upper Tribunal has succeeded on a point of law is no guarantee that the re-hearing of the appeal before the new FTT will succeed on the facts. The previous tribunal may or may not have reached the right decision on the merits of the case: I simply do not know. So the new tribunal may reach the same, or a different, decision to that of the previous tribunal. It all depends on the findings that the new tribunal makes.

Conclusion

18. I conclude that the decision of the First-tier Tribunal involves an error of law. I allow the appeal and set aside the decision of the tribunal (Tribunals, Courts and Enforcement Act 2007, section 12(2)(a)). The case must be remitted for re-hearing by a new tribunal subject to the directions above (section 12(2)(b)(i)). My decision is also as set out above.

Signed on the original Nicholas Wikeley

on 21 May 2014 Judge of the Upper Tribunal