Tribunals, telephones and videos

 

When should a First-tier Tribunal consider allowing appellants to take part in the hearing of their appeals via a telephone or video link? Simon Osborne reviews the relevant law, and some yet wider considerations.

Under the tribunal procedure rules, the First- tier Tribunal should hold a hearing of an appeal, except where all parties to the appeal have consented to a paper determination, and the tribunal considers that it can ‘decide the matter without a hearing’.1 Rule 27(1) The Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 No.2685 (the ‘Tribunal Procedure Rules’) Hearings are therefore accorded much importance: in effect, there must be a hearing if any party to the appeal wants one, and even where that does not apply the tribunal itself must satisfied that one is not required.

A hearing means an ‘oral’ hearing. Usually, in practice this is a face-to-face hearing at a tribunal venue. But strictly speaking an oral hearing also includes a hearing ‘conducted in whole or in part by video link, telephone or other means of instantaneous two-way electronic communication’.2 Rules 1(3) and 27 Tribunal Procedure Rules So, although the vast majority of hearings are in the context of the actual physical presence of the appellant, with face-to-face contact, there is nothing automatically unlawful about any hearing that takes place by way of telephone or video link. But when should this be considered in practice?

As emphasised by some recent caselaw from the Upper Tribunal (see below), there are a couple of specific contexts in which allowing an appellant (or a witness) to take part in this way should at least be considered.

Firstly, under a Practice Direction of the Senior President of Tribunals, in cases involving evidence from a ‘child, vulnerable adult or sensitive witness’, ‘it may be appropriate for the Tribunal to direct that the evidence should be given by telephone, video link or other means directed by the Tribunal…’.3 Paragraph 7 Practice Direction (First-tier and Upper Tribunals: Child, Vulnerable Adult and Sensitive Witnesses), 30 October 2008 (the ‘Practice Direction’). At time of writing, the Practice Direction was due to be revised in the light of comments about paragraph 5 of the Direction and the participation of children in hearings made in JP v SSWP (DLA) [2014] UKUT 275 (AAC); [2015] AACR 2. In this context, it should be noted that a sensitive witness means ‘an adult witness where the quality of evidence given by the witness is likely to be diminished by reason of fear or distress on the part of the witness in connection with giving evidence in the case.’4 Paragraph 1.c Practice Direction 5 Rule 2 Tribunal Procedure Rules

Secondly, in any case, the tribunal procedure rules provide that the ‘overriding objective’ of the rules is to deal with the case ‘fairly and justly’. That includes ‘ensuring, so far as practicable, that the parties are able to participate fully in the proceedings.’5 Rule 2 Tribunal Tribunal Rules So where an appellant cannot (for whatever reason) attend a hearing but would take part via telephone or video link, the question may arise.

A number of recent decisions of the Upper Tribunal have emphasised the importance of the First-tier Tribunal considering allowing claimants to take part in hearings via a number of routes, including telephone link, as part of its duty under the tribunal procedure rules and the Practice Direction. In all these cases, the individual circumstances of the appellant is crucial: the offer of a telephone hearing (or other alternative way of participating) is not mandatory.

In DT v SSWP (DLA) [2015] UKUT 390 (AAC), the claimant’s health problems included agoraphobia, asthma, depression, hypertension, anxiety and angina. She indicated that she wanted her appeal to be determined ‘on the papers’, but also explained that she did not feel should could attend the hearing in person, because of panic attacks and a dislike of going to strange places. The First-tier Tribunal made a paper determination, and in its reasons said that was because the claimant had opted for such a hearing and the tribunal considered it could proceed without one. Judge Hemingway held that the tribunal had not sufficiently explained this. The appellant had in fact demonstrated that she would have liked to have participated but felt her mental health prevented her. The tribunal had failed to factor this into its considerations and:

In SW v SSWP (DLA) [2015] UKUT 319 (AAC), the claimant had a genetic disorder resulting in strong body odour, and also had anxiety, depression, panic attacks, paranoia, occasional suicide ideation and fear of enclosed spaces with other people. She said she could not attend the First-tier Tribunal hearing, but asked whether the tribunal could telephone her on the day of the hearing if it had any questions. The tribunal decided to proceed in her absence. Judge Knowles QC agreed with the Secretary of State that, in the circumstances of this case, the tribunal was required to consider the Practice Direction and in particular allowing the claimant to give evidence via a telephone as a ‘sensitive witness’ (paragraphs 15–16). In deciding to proceed on the papers alone, the tribunal had not only failed in that regard, but also to properly consider the requirement in the tribunal procedure rules to ensure so far as possible that the parties to the appeal can ‘participate fully’ in the proceedings (paragraph 22). The case was remitted to a new tribunal, which was directed to give the appellant the opportunity to attend by telephone.

In LO’L v SSWP (ESA) [2016] UKUT 10 (AAC), the appellant had anxiety and panic attacks, as well as diabetes and musculoskeletal problems. She indicated that she did not want an oral hearing, as she did not want to go out on account of ‘bad depression, anxiety, panic attacks and phobias’. The tribunal decided to proceed in her absence. Judge Jacobs agreed that the issue for the tribunal had been how to do that in the light of the requirement in the tribunal procedure rules to deal with the case fairly and justly (the ‘overriding objective), including allowing participation in the proceedings. It was beyond dispute that a telephone hearing was permissible and that in a particular case the tribunal ‘may be required’ to consider that, either by reference to the overriding objective or the Practice Direction (paragraph 29). It was unrealistic to expect that the claimant always had to request a telephone hearing (paragraph 30). However, it was also the case that the application of the overriding objective had to be proportionate:

On the particular facts of this case, which included that it was not clear that the claimant would have participated by telephone, and the tribunal’s demonstration of lengthy consideration of the available evidence in deciding whether an oral hearing was required, the tribunal had not actually erred in not offering a telephone hearing (paragraph 36).

Much of the relevant caselaw has commented on the consideration of telephone hearings in the context of claimants with mental health problems, in particular anxiety. This may reflect that anxiety-related conditions are among those most likely to feature in appeals and that, in practice, a telephone hearing may be the most obvious potential alternative.

But there is no inherent bar to the potential relevance either of physical health problems or of a hearing via a video link.

And neither is there anything which expressly rules out the consideration of a third alternative to attendance at a tribunal venue – ie, a domiciliary hearing. Indeed, it is noteworthy that the judge in DT v SSWP (DLA) mentioned such a hearing as one of the possible alternatives in that case. In practice, however, such hearings are increasingly uncommon, and no doubt the availability of telephone hearings and video links are a factor. Indeed, in KO v SSWP (ESA) [2013] UKUT 544 (AAC) the judge said of domiciliary hearings it ‘is rare that they are either appropriate or necessary’.

The overall tenor of the caselaw is that use of telephone and video facilities is exceptional, and very much dependant on the individual facts of the case. Key considerations are whether the overriding objective in the tribunal procedure rules demands it (ie, with regard to the tribunal’s enabling role of allowing parties to take part in a hearing), or where the claimant is a ‘sensitive witness’ under the Practice Direction. It is, for obvious reasons, especially indicated where the claimant expresses a desire to take part in that way and there is good reason for that. But – as emphasised in LO’L v SSWP – tribunals must exercise their discretion, including taking account of the requirement for proportionality in applying the overriding objective.

Away from the legal context, there are signs of official moves to put less emphasis on face-to- face hearings. In February, the Ministry of Justice and HMCTS published a response to a consultation on ‘provision of court and tribunal estate in England and Wales.’6 Justice, Response to the proposal on the provision of court and tribunal estate in England and Wales, 11 February 2016,

Moreover, it is understood that HMCTS is to test (via a pilot project) online resolution of appeals. The trial seems likely to draw on a 2015 report by Justice in which a new model of dispute resolution, using an integrated online and telephone information service (as well as first instance handling by a legally qualified ‘registrar’) was recommended for civil courts and tribunals. Justice, Delivering Justice in an Age of Austerity, April 2015 The pilots are likely to involve testing of an online process whereby the tribunal comments on and ask questions arising from the appeal papers. Parties to the appeal are given an opportunity, not necessarily in real-time, to respond online. Only at the end of that process would the parties be asked if they want an oral hearing before the appeal is decided. (It should be remembered that under Article 6 of the European Convention on Human Rights, everyone is entitled to ‘a fair and public hearing within a reasonable time’.) Further details of the pilot were not available at time of writing.

Responses to the consultation on the courtand tribunal estate included both endorsement of the capacity of technology to facilitate wider and faster access to justice, and concern that for some groups video links were not a suitable alternative to attending hearings in person. Examples were cited of people with visual or hearing impairments, some older people or those with communication support needs.7 Response to the proposal on the provision of court and tribunal estate in England and Wales, pp20–21

Clearly, for many appellants all alternatives to a face-to-face hearing – whether via telephone, video link or online – will be unsuitable due to difficulty accessing and using the relevant technology. More widely, many will continue to feel that communication with the tribunal is always best achieved via face-to- face contact. Such hearings usually provide the best opportunity (for appellant and tribunal) for comment, observation and discussion. However, for some claimants – such as, for example, those involved in the caselaw described above  alternative ways of taking part in a hearing, including by telephone or video, are welcome and may even be essential in ensuring fairness and justness. That may also apply to online resolution, although the online environment will certainly create problems for any claimant not comfortable with that form of communication. In most cases, a face-to-face hearing is likely to remain the default preference. Otherwise, the case-by-case approach indicatedfor the First-tier Tribunal in the recentcaselaw would also seem to be a good approach for appellants and representatives in deciding whether a departure from that is a good idea.

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