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Who makes ‘on the day’ decisions re. adjournment requests?
Hi all,
Situation is as follows…Client had appeal waiting to be listed, but before receiving hearing date travelled abroad without telling me or Tribunal Service (MH issues). Hearing was listed and I requested postponement. This request was refused by a Tribunal Judge.
In my submission I made a further request for an adjournment. This was again refused and the hearing went ahead and client’s appeal was turned down. Statement of reasons requested.
SOR has been received and is interesting. It appears that the tribunal panel was split on whether to proceed with the hearing. Judge wanted to adjourn but medical and disability members voted to go ahead. The paper hearing then took place. Again the panel was split. Medical and Disability members concluded that client’s claim form was “highly exaggerated” and awarded him nothing. Judge was not convinced re. daily living but would have awarded standard rate mob.
I am going to ask for permission to go to UT - my feeling is that if somebody’s credibility is coming into question, they need to be given the opportunity to speak for themselves/explain things better/resolve inconsistencies.
What I was interested in is whether the tribunal panel was correct to all get involved on the question of whether to go ahead with the tribunal - should this have been a decision for the judge only (who did in fact think that they should have adjourned)?
Any thoughts would be welcome
This was looked at in CE/758/2011 -
http://administrativeappeals.decisions.tribunals.gov.uk//Aspx/view.aspx?id=3465
Says that tribunal judge can make the decision on his/her own but can also consult with other tribunal members and should have in that particular case - was to do with same tribunal having heard IB appeal before though - very different to your case.
I’d be more inclined to look at whether the SoR demonstrates the tribunal properly applied its mind to whether the appeal should proceed in the appellant’s absence - as per rule 31 of the Tribunal Rules.
Assuming no issue about the appellant having been properly notified*, then the issue is one of whether it was ‘in the interests of justice’ to proceed. A decision on which has to be informed by the overriding objective in rule 2(3) of dealing with cases fairly and justly.
I’m not aware of caselaw on this point, but I’d argue that;
a) if decisions on whether it is fair and just to proceed are to involve more than just the judge, they ought to be made by consensus, rather than voting.
b) the role of wing members is primarily focussed on medical, disability and care issues - the role of the judge is primarily foused on the law. And the issue of what is fair and just is one of law. So whilst a majority decision on whether to proceed might be acceptable, I’d argue the majority has to be the judge plus one wing member against the other, not the two wing members against the judge.
* But there may be an issue of whether the appellant was properly notified - yes, notice was issued, but it hadn’t been at the point she travelled, so it can’t be said she was aware of the hearing and decided to go abroad anyway. That certainly has to be a factor that ought to have weighed heavily in the appellant’s favourwhen deciding whether it was fair and just to proceed in her absence.
Thanks both! I think that the point PC is making re. the majority having to include the judge fits to an extent with the case Ros highlighted - whilst one of the points being dealt with in that case was the other way round i.e. could the judge decide the decision on their own or should the medical member have been involved you could argue that it rests on the assumption that the judge was involved either way. If it was the normal course of action for decisions to be made on a majority/minority basis rather than by the judge on the advice of their wing member colleague(s) then there might be lots of ‘hung’ decisions in ESA!
In terms of the notification issue, I can see the argument in principle but not sure it fits with facts in this case unfortunately. Client was represented and notification was sent to me, and also to his wife who had stayed in the UK. He was aware via both of us that a hearing was listed and was able to request a postponement (albeit this request was turned down).
Will keep updated, FWIW client has now been awarded PIP following a fresh claim.
The important documents here are the Composition Order and the Practice Statement on composition:
http://origin-www.legislation.gov.uk/uksi/2008/2835/pdfs/uksi_20082835_en.pdf
https://www.judiciary.gov.uk/wp-content/uploads/JCO/Documents/Practice+Directions/Tribunals/sec-composition-sscs-cases-01082013.pdf
The Order sets out that where decisions are to be made, if unanimity cannot be achieved, decisions are made by majority with the presider having the casting vote. I don’t think any argument about consensus decisions or qualified majorities can survive this.
The Practice Statement sets out the rules on who must be in a Tribunal. Paragraph 10 lists certain procedural decisions which can be made by a Judge alone. CE/758/2011, on my reading, explains that because this is a may power, it does not need to be used but it allows a judge to adjourn a larger tribunal, reconvene as a separate tribunal consisting only of himself, make a decision or use a power and then reconvene the larger tribunal .Alternatively, the larger tribunal can make the decision for itself.
However this power is only available in making decisions under “rules 5 to 9, 11, 14 to 19, 25(3), 30, 32, 36, 37 or 41”. The decision to continue with a hearing in the absence of a party is made under rule 31 - which is missing from that list. Likewise a decision to make a decision without a hearing - under rule 27 - is missing from the list.
You could perhaps argue that your request to adjourn was a freestanding application under rule 5(3)(h) and therefore the Judge could have decided it himself on the CE/758/2011 basis but that’s a very artificial argument. Really, I think your application amounted to representations on an issue which the tribunal already had to consider for itself under rule 31.
My view would be that the judge therefore had no option but to let the wing members have a say - and in this particular instance to overrule him/her.
I think it may be useful to consider SS v SSWP [2011] AACR 24 as well. This case explains that where a majority decision is reached, there is no need to identify as much in the SOR - the judge can just give the majorities reasoning. However, if the decision is identified as a majority one, there needs to be some indication of the reasons for the dissent.
This may mean (a) that something the judge has written about why they dissented actually discloses an error of law by the majority or (b) that there is an error of law if the judge hasn’t sufficiently explained their own reasoning for dissent.
It may also be worth bearing in mind that if the judge is a salaried one (see https://www.judiciary.gov.uk/about-the-judiciary/who-are-the-judiciary/list-of-members-of-the-tribunals-judiciary/first-tier-tribunals-judges/), then by default they will be the one who considers any application for permission to appeal. It may be that a Judge would be particularly sympathetic to a PTA application which is framed on the basis that they were right in the first place.
Thank you Elliot - very helpful!
I was thinking that last point myself.
It’s looking less and less as if it has legs to be honest. Worth a try though I guess, the credibility argument feels like it has merit to it but I am concerned that the SOR does enough to suggest that the judge had raised the issue with the rest of the panel who still felt that there was enough in the bundle to make a decision. I think that would probably be within the range of decisions that the UT will not feel they are in a position to interfere with.
Elliot is right about the practice direction stuf, of course - apologies for the red herring.
However, the issue is neither whether there was sufficient evidence in the papers for the FtT to make a decision, nor whether the decision itself was one that the tribunal was entitled to make on the evidence before it. It seems to me that any UT application does not require an analysis of the FtT’s reasoning on entitlement and a need to show error in that reasoning…..
......the issue is quite separate and quite narrow.
Rule 31 permits a tribunal to proceed in a party’s absence where reasonable steps have been taken to notify that party of the hearing and where the tribunal considers it is ‘in the interests of justice’ to proceed. The focus, I would say, has to be around the issue of the ftT’s consideration of the ‘in the interests of justice’ point;
- an appellant has a right to to attend a hearing and give evidence - that’s a core, fundamental right.
- the apppellant in this case indicated his desire to attend a hearing and give evidence
- due in part to his mental health problems, he travelled abroad before the hearing was listed and did not/was unable to return in time for the hearing - was he even aware of the hearing date before he returned to the UK? If so, then considerations of finance and the reasons he went abroad aside, did he become aware of the hearing in time for it to be even possible to return to the UK in time for the hearing?
Given the above and given that one cannot possibly say that the outcome of the hearing would not have been different had the tribunal had opportunity to hear from the appellant directly, it would take some fairly detailed and robust reasoning to show it was in the interests of justice to proceed in his absence. Bear in mind rule 2 and the overriding objective of dealing with cases fairly and justly - and that the tribunal must seek to give effect to the overriding objective when exercising any of its powers - including rule 31 powers. Dealing with a case fairly and justly specifically requires “ensuring, so far as practicable, that the parties are able to participate fully in the proceedings.” You may want to take a look at CS v Secretary of State for Work and Pensions [2013] UKUT 0508 (AAC) on the rule 31 issue…...
And even if the rule 31 reasoning is robust, that would not preclude a rule 37 set-aside request on the basis of a party’s absence - I would think you have a pretty good case on rule 37 alone.
(as an aside, I wonder how soon after the issue of the SoS’s submission the hearing notice was issued? I am increasingly finding that the month allowed for the appellant’s response to the SoS submission is not complied with - see rule 24 - and that the hearing is listed within a month of issue. There might be some mileage in that, depending on dates).
May I just clarify? Request for postponement in advance but then a sub including a request to adjourn? That latter request misses out a stage whereby the request to postpone is renewed and, if that fails, one includes a request to adjourn with reasons within the sub.
The reason it matters is that adjournment is potentially for a whole tribunal. I remain to be convinced that postponement is.