Deciding appeals in the absence of claimants

 

David Simmons looks at the rules and recent caselaw relating to the determination of appeals in the absence of claimants.

The issue of how benefit appeals should be disposed of where claimants do not request or fail to attend an oral hearing is a longstanding one. It has taken on added significance, however, with the rising number of appeals and growing delays in their determination.1 The most recent statistics show a 58 per cent increase in benefit appeals compared with the previous year and an average 18-week disposal period, in addition to the many weeks or months it typically takes the benefit authorities to process the appeal and pass it to HM Courts and Tribunals Service. See Tribunal Statistics Quarterly, April to June 2013, issued by gov.uk on 12 September 2013.This has put more pressure on tribunals to decide appeals as quickly as possible, which tends to discourage them from granting postponements and adjournments and proactively considering whether it is the interests of justice to decide an appeal in the claimant’s absence. Unsurprisingly, there have been a number of recent Upper Tribunal cases on the issue of deciding appeals in the absence of claimants. This article looks at the relevant rules and caselaw.

The relevant rules are set out in the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008.

Rule 2 sets out the ‘overriding objective’ of the rules, which is ‘to enable the Tribunal to deal with cases fairly and justly’. This includes ‘ensuring, so far as practicable, that the parties are able to participate fully in the proceedings’ (rule 2(2)(c)), and ‘avoiding delay, so far as compatible with proper consideration of the issues’ (rule 2(2)(e)). The tribunal must give effect to the overriding objective when exercising its powers (rule 2(3)(a)).

Rule 5(3)(h) specifies that a tribunal may adjourn or postpone a hearing. A postponement occurs before the beginning of a hearing. An adjournment occurs once a hearing has begun (although an adjournment request can be made at the beginning of a hearing). Although the rule only applies to oral hearings (see definition of ‘hearing’ in rule 1(3)), the power to adjourn a ‘paper determination’ is implied (see CDLA/1552/1998).

Rule 27(1) states that a tribunal must hold an oral hearing before deciding an appeal, unless each party has consented, or not objected, to a decision without a hearing, and the tribunal considers it is able to decide the mat-ter without a hearing.

Rule 31 states that if a party fails to attend an oral hearing, the tribunal may proceed with the hearing if it is satisfied that the party has been notified of the hearing, or reasonable steps have been taken to notify her/him, and it is in the interests of justice to proceed with the hearing.

In general, where a claimant has opted for a ‘paper determination’ of her/his appeal, a tribunal is entitled to proceed on this basis, but several cases have held that this does not apply where it is clear that the tribunal cannot determine the appeal fairly and justly without an oral hearing. This general principal was set out in CDLA/1347/1999.

In CIS/4248/2001, the claimant had opted for a paper determination of an appeal against the recoverability of a large sum of income support. The veracity of the claimant’s evidence was central and the Commissioner held that the tribunal should have directed an oral hearing to properly test the claimant’s evidence and honesty. In MH v Pembrokeshire County Council (HB) [2010] UKUT 28 (AAC) and DG v SSWP (ESA) [2010] UKUT 409 (AAC), the claimants had mental health problems and had opted for a paper determination of their appeals. In both cases, the tribunal decisions were set aside on the basis that the tribunals should have considered adjourning and directing an oral hearing.

In MM v SSWP (ESA) [2011] UKUT 334 (AAC), the claimant had opted for a paper determination of his employment and support allowance (ESA) appeal. There was nothing in any of the documents or the tribunal’s statement of reasons to indicate that the tribunal had considered whether to proceed or adjourn to allow an oral hearing to take place, taking into account rule 27(1). In deciding that the tribunal had erred by not properly considering whether it was able to decide the appeal without an oral hearing, Judge Mesher commented:

A similar approach was taken by Judge Poynter in JP v SSWP (IB) [2011] UKUT 459 (AAC). The tribunal had failed to explain why it considered it could decide the appeal without a hearing under rule 27(1), taking into account the overriding objective in rule 2, in a case where there was clearly conflicting evidence relating to the personal capability assessment. The claimant had stated she did not want a hearing but had not said she would not attend a hearing if the tribunal decided to hold one. In SW v SSWP (ESA) [2012] UKUT 76 (AAC), Judge Lane held that although a tribunal was entitled to proceed with a paper determination where this had been requested by a claimant, ‘it must turn its mind to whether this a right course of action to take in an individual case and give a brief explanation of why it so decided’.

In SB v SSWP (ESA) [2012] UKUT 249 (AAC), the claimant requested an oral hearing but subsequently wrote to the tribunal to state she was unable to attend due to her anxiety and panic attacks because there was no one to accompany her on the scheduled date. The tribunal proceeded with a paper determination of her appeal, quoting rule 31. Judge Ward set aside its decision on the basis that contrary to rule 27(1), the tribunal had proceeded with a paper determination without the claimant’s consent. She had requested an oral hearing, but had said she was unable to attend on a particular date. Rule 31 was irrelevant as the tribunal had not proceeded with an oral hearing in the claimant’s absence, but had unlawfully substituted a paper determination of her appeal.

In RW v SSWP (IB) [2013] UKUT 238 (AAC), the claimant attended an oral hearing which was adjourned to obtain his full medical records. On receipt of these, the tribunal re-convened and decided the appeal on the basis of the papers alone without notifying the claimant. Judge Mark held that it was not open to the tribunal to do this, as the claimant had not consented to a paper determination in accordance with rule 27(1).

In TMcG v SSWP [2012] UKUT 411 (AAC), the claimant had attended the tribunal venue on the day of his ESA appeal hearing, but was told that there was no need for an oral hearing because the tribunal had already decided that he had won his case. In the event, the tribunal decided that he had limited capability for work, but did not have limited capability for work-related activity. Judge Wikeley held that the denial of an oral hearing was an error of law in this case. Holding that ‘justice must not only be done, but must be seen to be done’, the judge stated that an oral hearing was ‘a fundamental tenet of the justice system’, enshrined in common law and Article 8 of the European Convention on Human Rights. There was no evidence that the claimant had consented to a paper determination of his appeal, so the decision to proceed on this basis was contrary to rule 27.

The decision whether to proceed with an oral hearing in the absence of the claimant under rule 31, or postpone or adjourn a hearing under rule 5(3)(h), is clearly within the discretion of the tribunal, taking into account all the circumstances of the individual case. A review of the caselaw, however, is useful for identifying common scenarios where tribunals take the wrong course. The general approach to balancing whether an adjournment is in the interests of justice, taking into account the interests of the parties and the operation of the tribunal system, was set out in CIB/1009/2004 and MA v SSWP [2009] UKUT 211 (AAC). Although it was held in the latter case that it was unlikely that the overriding objective in rule 2 would dictate the decision of a tribunal whether to adjourn a hearing, subsequent cases have stressed the relevance of rule 2.

In CB v SSWP (DLA) [2013] UKUT 242 (AAC), for example, Judge Wright held that the discretion in rule 31(b) is subject to the overriding objective in rule 2 to deal with cases fairly and justly, ensuring, as far as practicable, that the claimant is able to participate in the proceedings. The claimant, who said she was unable to attend unfamiliar places alone, had requested a postponement on the grounds that her daughter was unable to accompany her on the scheduled day. The request was refused on the basis that she had been notified of the hearing well in advance and could have arranged for another person to accompany her. Judge Wright held that this reasoning was inadequate to establish that the tribunal had properly exercised its discretion under rule 31(b). Similarly, in DK v SSWP [2011] UKUT 230 (AAC), Judge Wikeley held that a tribunal had erred by failing to exercise its discretion under rule 31 and/or failing to explain the exercise of that discretion when it proceeded with an overpayment appeal in the absence of the claimant.

In PM v SSWP (IB) [2013] UKUT 301 (AAC), the claimant suffered with agoraphobia and panic attacks and felt unable to attend his appeal hearing on the day. His representative asked for an adjournment and a domiciliary hearing, which was refused on the basis that this was not in the interests of justice or the ‘efficient dispatch of proceedings’. Judge Bano held that the tribunal’s reasoning was inadequate for the purposes of exercising its discretion under rule 31. Although the tribunal was entitled to have regard to the overriding objective in rule 2(2)(e) to avoid delay, this was subject to the important qualification ‘so far as compatible with proper consideration of the issues’. In this case, it was clearly not in the interests of justice to proceed in the claimant’s absence. The judge also pointed out that in CIB/2751/2002, it was held that the refusal of a domiciliary hearing for a claimant with agoraphobia was a breach of the common law and Article 6 of the European Convention.

In FR v Broadland District Council [2012] UKUT 449 (AAC), the claimant requested a postponement in writing 10 days before his appeal hearing on the grounds that he had a meeting relating to the launch of his business. The tribunal did not see the letter, but only a file note referring to an adjournment request, which it refused on the basis that judicial proceedings take precedence over other appointments. Judge Mark held that the tribunal decision was erroneous in law as it was not based on the full facts and was contrary to rule 2, which required flexibility to ensure that a party was able to participate in proceedings. There was no rule that judicial proceedings took precedence over other appointments and the refusal to postpone was ‘wholly inflexible’ and not proportionate, denying the claimant of a fair hearing.

In AA v SSWP (ESA) [2013] UKUT 263 (AAC), the claimant requested a postponement as his representative had had other commitments on the day of the hearing and was still in the process of obtaining his medical records. The tribunal refused the request. Judge Bano held that the refusal was contrary to the overriding objective of rule 2. Although there was no absolute right to representation, in this case a representative would clearly have assisted the claimant, who was seeking to establish points under the mental health descriptors (see also R v Social Security Commissioner ex parte Bibi (unreported 23 May 2000, referred to in CIB/1009/2004 and CIB/2058/2004).

In CH v SSWP [2012] UKUT 427 (AAC) and CE v SSWP [2013] UKUT 139 (AAC), it was held that the tribunals had erred in law by proceeding with oral hearings in the absence of the claimants, even though both claimants had stated that they did not want to attend the hearings. In both cases, there was conflicting evidence and it was held that the tribunals should have given further consideration about whether it was in the best interests of justice to proceed or adjourn to give the claimants the opportunity of attending a hearing or submitting further evidence.

Finally, the following three cases are examples of when things go wrong on the day of a hearing. In CB v SSWP [2012] UKUT 189 (AAC), the claimant telephoned the tribunal 15 minutes before the scheduled start of her hearing to say she was unable to attend in time because her representative had failed to pick her up. It was held that the tribunal’s refusal to adjourn the hearing was a breach of natural justice. In CJ v SSWP [2013] UKUT 131 (AAC), the claimant arrived 20 minutes late for her hearing and was told it was too late to attend. This was contrary to the interests of justice under rule 31. In DF v SSWP [2011] UKUT 460 (AAC), the claimant arrived late for her hearing because she was attending a job interview. In these circumstances, it was held that the tribunal should have adjourned the hearing.

It is clear that a tribunal should only proceed with a paper determination if it is satisfied that the claimant has consented to this and the appeal can be decided justly and fairly without an oral hearing, in accordance with rules 2 and 27(1). Where a claimant fails to attend an oral hearing, the tribunal must properly consider whether it is the interests of justice to proceed with the hearing, or adjourn it to give the claimant a further opportunity to attend, taking into account the overriding objective in rule 2.

Where, therefore, a claimant’s appeal has been dismissed following a paper determination, it is always worth checking that the claimant consented to a paper determination and that the tribunal actively considered whether it was able to determine the appeal without an oral hearing. Where a claimant’s appeal has been dismissed following an oral hearing which s/he failed to attend, it is always worth checking that the tribunal actively exercised its discretion to proceed without the claimant. If there is doubt in either case, a statement of reasons should be requested, which should reveal whether the tribunal addressed the relevant issues. Where a claimant failed to attend an oral hearing, there may be grounds for a ‘set aside’ under rule 37(2)(c) if it is in the interests of justice.

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