Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Appeal No: CAF/5682/2014

ADMINISTRATIVE APPEALS CHAMBER

Before: Upper Tribunal Judge Wright

DECISION

The Upper Tribunal allows the appeal of the appellant.

The decision of the First-tier Tribunal sitting at Cardiff on 16 July 2014 under reference ASS/00322/2014 involved an error on a material point of law and is set aside.

The Upper Tribunal is not in a position to re-decide the appeal. It therefore refers the appeal to be decided afresh by a completely differently constituted First-tier Tribunal and in accordance with the Directions set out below.

This decision is made under section 12(1), 12(2)(a) and 12(2)(b)(i) of the Tribunals Courts and Enforcement Act 2007

DIRECTIONS

Subject to any later Directions made by a Tribunal Judge of the First-tier Tribunal, the Upper Tribunal directs as follows:

(1)               The new hearing will be at an oral hearing. Steps will need to be taken by the First-tier Tribunal to ensure that a hearing date is arranged which Colonel Groves is able to attend.

(2)              If the appellant has any further evidence that he wishes to put before the tribunal that is relevant to his appeal this should be sent to the First-tier Tribunal’s office at Fox Court in London within one month of the date this decision is issued.

(3)              The First-tier Tribunal should have regard to the points made below.

REASONS FOR DECISION

1.                   I am persuaded by the submissions filed on this appeal by the parties’ representatives, submissions which coincide with the grounds on which the First-tier Tribunal Chamber President, Judge McKenna, gave permission to appeal, that the First-tier Tribunal erred in law in coming to its decision on 16 July 2014, and I am further persuaded by what is said by Mr Tucker on behalf of the appellant on page 88 that such error was material to the decision.

2.                  Rule 29 of the Tribunal Procedure (First-tier Tribunal) (War Pensions and Armed Forces Compensation Chamber) Rules 2008 (the “TPR”) governs proceeding with a hearing in the absence of a party to the appeal. It provides, inter alia, that the First-tier Tribunal has to be satisfied that it is in the ‘interest of justice’ to do so. Rule 2 of the TPR is also relevant. It sets out the “overriding objective” a key part of which is  

“ensuring, so far as practicable, that the parties are able to participate fully in the proceedings”.

3.                  Given the history recited by Judge McKenna in paragraph 10 of her grant of permission to appeal (page 10), in my judgment the First-tier Tribunal erred in law by failing to address adequately (at least as shown by its reasoning) whether it was in the interest of justice and consistent with the overriding objective for it to decide the appeal in the appellant’s absence in a context where the appellant had shown a desire to attend (in May and June 2014) and where the HMCTS correspondence to him may have been misleading.

4.                  It also seems to me that the First-tier Tribunal failed adequately to consider how the appellant could participate in the hearing. Rule 1(3) of the TPR defines “hearing” as meaning “an oral hearing and includes a hearing conducted in whole or in part by video link, telephone or other means of instantaneous two-way electronic communication”. No consideration seems to have been given either by the First-tier Tribunal which sat on 16 July 2014 or HMCTS more generally as to whether the appellant could have participated in the “hearing” in this broader sense on 16 July 2014.

5.                  For the reasons given above, the tribunal’s decision dated 16 July 2014 must be set aside.  The Upper Tribunal is not in a position to re-decide the first instance appeal. The appeal will therefore have to be re-decided by a completely differently constituted First-tier Tribunal.  The appellant’s success on this appeal to the Upper Tribunal on error of law says nothing one way or the other about how his appeal will be decided on the facts.  If he is unable to come to Great Britain to attend a hearing in person then a video link or link by Skype, or some such other medium, may need to be considered.  If, however, he is able to attend in person then care will need to be taken as to which is the most appropriate venue.

 Signed (on the original) Stewart Wright

Judge of the Upper Tribunal

Dated 24^th June 2015