Tribunal rules round-up
Simon Osborne considers some of the recent caselaw concerning tribunals and in particular the application of the Tribunal Rules.
Along with the creation of the First-tier Tribunal and the Upper Tribunal, new rules governing procedure in tribunals were introduced from 3 November 2008. For the First-tier Tribunal, social security and tax credits were placed in the Social Entitlement Chamber, with the main rules being the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, SI 2008 No.2685 (referred to in this article as ‘the Tribunal Rules’). Recent caselaw has thrown some more light on the application of these rules. Very similar, and in some respects identical, rules were introduced for tribunals in other chambers, so some caselaw arising from those will apply equally to the Tribunal Rules.
Under rule 5(3)(a) of the Tribunal Rules, the tribunal has the power to admit a late appeal – ie, by using its power to ‘extend or shorten the time for complying with any rule, practice direction or direction’. No specific grounds are required to be made out for the tribunal to do this; however, it may not extend the time limit by more than 12 months beyond the deadline (rule 23(8)). Recent caselaw has emphasised the wide discretion given to tribunals in deciding whether or not to admit a late appeal, and in particular the importance of applying the ‘overriding objective’ at rule 2 of dealing with cases ‘fairly and justly’.
In Information Commissioner v PS  UKUT 94 (AAC), Judge Wikeley was dealing with a case that arose in the General Regulatory Chamber (GRC), but its findings regarding the application of rule 2 and the admission of late appeals by tribunals will apply equally to social security and tax credit cases. The tribunal concerned had admitted a late appeal, applying a rule in the GRC rules very similar to that at rule 5(3)(a) of the Tribunal Rules, with reference to ‘overriding objective’ (also at rule 2 of the GRC rules) to deal with cases ‘fairly and justly’. Judge Wikeley upheld that approach, rejecting arguments that the tribunal should have applied a narrower test, such as whether the appellant had ‘good cause’ for claiming late.
The judge also considered that consistent with earlier caselaw (from other chambers) on tribunals admitting late appeals. In particular, in CD v First Tier Tribunal (CICA) UKUT 181 (AAC), a criminal injuries compensation case from the Social Entitlement Chamber, Judge Turnbull had rejected an argument that in deciding whether to admit a late appeal, regard should be had to matters in the Civil Procedure Rules. Judge Turnbull said that was not appropriate and that ‘the power to extend time is unfettered, and the circumstances which will be relevant in exercising it will vary from case to case.’ Judge Wikeley, at paragraph 50 of his decision, explicitly endorsed that. He also endorsed the comments of Judge Levenson in Ofsted v AF  UKUT 72 (AAC) (a case from the Health, Education and Social Care Chamber) that ‘ultimately these are questions of judgement of the facts and circumstances of each particular case…’.
Failure to attend hearing
If an appellant has opted for an oral hearing but then does not turn up, what should a tribunal do? Recent caselaw has again emphasised the importance of applying the overriding objective at rule 2 of dealing with cases ‘fairly and justly’.
In WT v SSWP (DLA)  UKUT 93 (AAC), the claimant had requested an oral hearing of his disability living allowance (DLA) appeal. But the written submission to the tribunal explained that the claimant had great anxiety about attending alone, his priest was unavailable on the day of the hearing, and that his advice centre was unable to provide a representative due to lack of funding. The tribunal held the hearing in the claimant’s absence and dismissed his appeal. Judge Ward held that, on the facts, it was an error of law to have proceeded. In particular, it had misapplied rule 31 of the Tribunal Rules because it had not applied that with sufficient reference to the overriding objective at rule 2. Under rule 31, if a party to the appeal fails to attend a hearing, the tribunal may proceed with it if it is ‘satisfied that the party has been notified of the hearing or that reasonable steps have been taken to notify the party of the hearing’, and the tribunal ‘considers that it is in the interests of justice to proceed with the hearing’. It was in applying this ‘interests of justice’ test that the tribunal erred.
The tribunal had decided to proceed because, the claimant having been adequately notified of the hearing, it considered it had sufficient information to make a decision. Judge Ward held that that was the wrong approach. It needed to consider rule 2 in deciding whether it was in the interests of justice to proceed. In particular, at rule 2(2) there was a list of things that were included in dealing with a case ‘fairly and justly’, and that list included at 2(2)(c) ‘ensuring, so far as is practicable, that the parties are able to participate fully in the proceedings’. On the facts of this case, the claimant’s circumstances, in particular his anxiety at attending without his priest, needed to be included in the balance when deciding whether to proceed. The tribunal had not done this and instead adopted a much narrower approach, so erring in law.
That rule 31 should be applied with rule 2 in mind was also the position adopted by Judge Lane in JF v SSWP (IS)  UKUT 267 (AAC). However, on the facts case, it was held that the tribunal had not erred in deciding to proceed. The claimant had opted for an oral hearing, but on the day of the hearing had telephoned the venue to say he was ill but wished the hearing to proceed in his absence. Again on the facts, the tribunal was considered not to have erred in finding that there was nothing to be gained by adjourning.
Paper hearings and decision to proceed
If no party to the appeal has requested an oral hearing, then it is possible that the tribunal may make a decision on the papers – ie, without a ‘hearing’ as such (these decisions are frequently referred to as ‘paper hearings’). But that is not the end of the matter. As has recently been emphasised, the tribunal must itself be satisfied that it can decide the appeal without an oral hearing, and must show that somewhere in its decision.
In MM v SSWP (ESA)  UKUT 334 (AAC), the claimant had not requested an oral hearing of his appeal regarding his failure of the work capability assessment. The tribunal decided the case on the papers, but there was no record of proceedings (apparently usual practice where there was no oral hearing), and the tribunal’s decision did not otherwise show that it had considered and then exercised its decision to proceed. Judge Mesher held that that was an error of law. In particular, rule 27(1) of the Tribunal Rules provides that a tribunal must hold an oral hearing, unless (a) no party has requested an oral hearing and (b) ‘the Tribunal considers that it is able to decide the matter without a hearing’. Nothing in the tribunal’s decision showed that it had considered and applied the condition at (b), and therefore rule 21 had been improperly applied. A tribunal needs to show it has considered whether it could make a decision without an oral hearing and record, however briefly, its reasons for its decision on that. That this amounted to an error of law was also because, on the facts of the case, which included a sketchily completed ESA50 questionnaire, it was not clear that no reasonable tribunal would have done anything other than come to the decision that the tribunal had.
Joined ESA/DLA appeals and tribunal composition
It is not uncommon for the same claimant to have appeals regarding bsoth employment and support allowance (ESA) and DLA at the same time. A practical response is to consider both appeals at the same time, in the sense of dealing with them in the same tribunal session. But a recent decision rules out dealing with them concurrently (ie, in the same hearing) rather than consecutively – ie, one after the other.
In PJ v SSWP (ESA)  UKUT 224 (AAC), the claimant’s ESA and DLA appeals were heard concurrently. That meant that a three-person tribunal considered the DLA appeal, with the disability-qualified member of that appeal then continuing to sit but not taking part in the actual decision regarding the ESA appeal. Judge Williams held that the tribunal had erred on procedural grounds. Firstly, it had breached the rules on tribunal composition, namely that an ESA appeal was to be considered by a two-person tribunal. It was not sufficient that the disability-qualified member had not actually taken part in the decision in the ESA appeal. The language of the rules on tribunal composition, in particular the Senior President of Tribunals Practice Statement on Composition of Tribunals in Social Security and Child Support Cases in the Social Entitlement Chamber on and after 3 November 2008, in the opinion of the judge, ‘refers to the whole decision-making process of a tribunal when hearing and considering an appeal in a particular session, whether making case management decisions, hearing evidence, considering papers, finding facts or reaching any procedural, provisional, or final decision on them.’
The tribunal had also erred in that in the DLA appeal it considered the ESA85 report as evidence, even though it was not in the DLA appeal papers and neither the DWP nor anyone else had put it before the tribunal, and the ESA85 findings were in fact at issue in the ESA appeal. Therefore it had considered evidence that was not properly before it, and in hearing the DLA appeal first had erred in that the disability member had not seen the challenge to the ESA85.
In short, although it was perfectly possible for the appeals to have been considered consecutively (ie, by differently constituted tribunals) it was wrong for them to have been considered concurrently.
Failure to comply with witness summons
Under rule 7 of the Tribunal Rules, tribunals have various powers to take action in the event of failure by a party to comply with a requirement in the Tribunal Rules, a practice direction or a direction. This includes, at rule 7(3), a power in cases of failure to comply with a requirement by the tribunal to give evidence or produce or make available, a document to refer to the Upper Tribunal with a request for punishment of the person concerned for contempt of court. That is possible under section 25 of the Tribunals, Courts and Enforcement Act 2007 (the 2007 Act), and the punishment can be up to two years’ imprisonment and an unlimited fine.
Application of this rule is likely to be rare in social security cases (and, in fact, under the terms of the Senior President’s Practice Statement Composition of Tribunals in Social Security and Child Support Cases in the Social Entitlement Chamber on and after 3 November 2008, can only be made by the Chamber President). However, a decision by a threejudge panel of the Upper Tribunal makes it clear that the Upper Tribunal takes the matter of non-compliance seriously. In CB v Suffolk CC  UKUT 413 (AAC), a case from the Health, Education and Social Care Chamber (HESC), a school headteacher did not attend an oral hearing when a witness summons had been served on him requiring him to do so. In fact, he went so far as to say he was withdrawing the place at his school for the child who was the subject of the appeal, in addition to not attending the tribunal. The tribunal referred the matter to the Upper Tribunal, under rule 7 of the HESC rules which is in identical terms to rule 7 of the Tribunal Rules.
The Upper Tribunal concluded that it was to consider whether the headteacher was to be punished by contempt of court under the provisions of the 2007 Act, and was not doing so against a background of the provisions of rules like the Civil Procedure Rules, which applied in the High Court. Neither was it a case where the witness summons was compromised by the sort of difficulties which concerned the Upper Tribunal in MD v SSWP  UKUT 202 AAC. (That case concerned a witness summons on a GP that was considered by the Upper Tribunal not to have been produced in accordance with the correct procedure; the Upper Tribunal took no action for contempt.) In the present case, the summons was correctly addressed and contained the requisite information. The Upper Tribunal warned at paragraph 28 of the decision, ‘We stress that neither MD nor the present case gives any encouragement whatever to a mistaken view that a person on whom a witness summons is served can simply sit back, await any reference to the Upper Tribunal and only then argue that the witness summons was not appropriately issued. A witness summons issued by the First tier Tribunal is to be complied with, unless and until it has been set aside or varied by the First tier Tribunal under rule 16(4) or set aside by the Upper Tribunal on an application for judicial review.’ On the facts of this case, the Upper Tribunal considered it appropriate to impose a fine of £500.
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