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CDLA/2156/2010 — Tribunal's duty to adjourn where evidence claimant could not attend hearing due to mental health problems

[2011] UKUT 93 (AAC)

Background

The claimant had back pain, depression and bowel and bladder problems, resulting in incontinence. He lived alone and his social contact was confined to the church he belonged to.

The claimant appealed against a decision awarding him the lower rate of the care component and his represenative at the local CAB, who was unable to attend a hearing, sent a submission to the tribunal which included the following -

'[The claimant] has told me that he is unsure whether he will be able to attend the Tribunal because he feels he needs someone to be with him. I am given to understand that he contacted the Tribunals Service and explained his fears about attending, he tells me that he would prefer to be accompanied, he has asked his priest but unfortunately he is unable to attend on the day. I have tried to persuade him to attend so that the tribunal can hear first hand how difficult he is finding it on his own.'

The claimant did not attend the appeal hearing and the tribunal disallowed the appeal in his absence. The claimant then appealed to the Upper Tribunal.

Reasons for decision

Judge Ward highlights that rule 7 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (the tribunal rules) allows a tribunal to go ahead with a hearing if a party fails to attend where it 'considers that it is in the interests of justice' to do so. In addition, Judge Ward highlights that rule 2 of the tribunal rules provides that the overriding objective of the rules is to enable a tribunal to deal with a case 'fairly and justly'.

Judge Ward holds that, even without an application for an adjournment, the tribunal was under a duty to consider whether one was necessary under rule 31 of the tribunal rules, and says that -

'In doing so, in my judgement it limited its field of inquiry unduly narrowly by considering only whether it had enough evidence to enable it to reach a reasoned decision. While that may have been so, it was also relevant, particularly in the light of the written submission from the CAB, to consider whether further useful evidence was likely to be forthcoming if the tribunal did hear from the claimant and whether it was just to deprive the claimant, who had expressly requested the opportunity to attend the tribunal, of the opportunity to give his evidence in person... ' (paragraph 12)

Judge Ward goes on to say -

'One can view the error of law as either construing the “interests of justice” in rule 31 too narrowly, with the result that the tribunal’s discretion whether to go ahead never arose in the first place, or, if a different view is taken on that point, as failing sufficiently to apply the factors required by rule 2 when considering the exercise of the discretionary power.' (paragraph 16)

Decision

Judge Ward sets aside the decision of the tribunal and directs a new tribunal to arrange a date on which the claimant would be able to attend with his priest.