IN THE UPPER TRIBUNAL	Case No.  CE/3169/2012
ADMINISTRATIVE APPEALS CHAMBER

Before E A L BANO

Decision:  My decision is that the decision of the First-tier Tribunal involved the making of an error on a point of law. I set aside the tribunal’s decision and remit the case for hearing before a differently constituted tribunal.

REASONS FOR DECISION

1.	The claimant, who has low back pain, appealed against a decision removing her award of ESA because she was found to have scored no points on the limited capability for work assessment.  The appeal was listed for hearing on 3 August 2011, but on 1 August 2011 her representatives faxed the tribunal a request for a postponement because the claimant had had to go abroad at short notice and wished to give oral evidence at the hearing.  The postponement request had apparently already been refused by a district judge, but it was then again refused by the tribunal, on the ground that “the overriding objective is not served by adjourning the matter”.  The tribunal dismissed the appeal and the claimant applied for permission to appeal on the ground that the refusal of the postponement was in breach of the requirements of natural justice.  Permission to appeal was refused by a district chairman, but given by me on 15 October 2012.

2.	This appeal has been supported by the Secretary of State in a written submission dated 22 January 2013, and I agree that it must be allowed.  The representative has based his submission on rule 27 of the First-tier Tribunal rules of procedure, but it seems to me that the real issue here is whether the tribunal properly exercised its powers of postponement under rule 5 and its power to proceed in a party’s absence under rule 31.  In Teinaz v Wandsworth Borough Council [2002] ICR 1471 the Court of Appeal held:

“A litigant whose presence is needed for the fair trial of a case, but who is unable to be present through no fault of his own, will usually have to be granted an adjournment, however inconvenient it may be to the tribunal or court and to the other parties.  The litigant’s right to a fair trial under Article 6 of the European Convention on Human Rights demands nothing less.  But the tribunal or court is entitled to be satisfied that the inability of the litigant to be present is genuine, and the onus is on the applicant for an adjournment to prove the need for such an adjournment.”

3.	The submission to the tribunal prepared by the claimant’s representative put in issue the activities of walking, standing, bending and kneeling, reaching and manual dexterity.  As I observed in my grant of permission to appeal, those were matters on which the claimant’s oral evidence would clearly have been extremely valuable in determining the issues raised by the claimant’s representatives’ submission.  There was no suggestion that the claimant was unable to attend the hearing for other than genuine reasons.  The tribunal said that an adjournment would not serve the overriding objective, but that objective is to “enable the Tribunal to deal with cases justly and fairly”, and includes (rule 2(2)(c)) “enabling, so far as practicable, that the parties are able to participate fully in the proceedings”.  The tribunal has failed to explain why it was fair and in accordance with rule 2(2)(c) to refuse a postponement request by a party who was unavoidably prevented from attending a hearing and whose presence at the hearing was necessary to ensure that the issues in the appeal were fully investigated.  There is also no indication in the tribunal’s reasons that they considered the separate, though overlapping, issue under rule 31 of whether it was in the interests of justice to proceed with the hearing in the claimant’s absence.

4.	I have therefore reached the same conclusion as the Secretary of State’s representative, albeit by a rather different route, that the tribunal’s decision involved the making of an error on a point of law.  I therefore allow the appeal, set aside the tribunal’s decision and refer the case to the First-tier Tribunal for rehearing before a fresh tribunal. 

E A L BANO
26 April 2013