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rule 31 - proceeding in the appellant’s absence
In KO v SSWP (ESA) [2013] UKUT 544 (AAC) Judge Gray held that the duty to consider whether to proceed with a hearing in the party’s absence is not one that is confined to the outset of proceedings - in particular, a conflict in the evidence which emerges part way through a hearing might require a tribunal to revisit the issue of whether it is in the interests of justice to proceed.
I am certain I have read more recent UT decisions to the same effect, or where the relevant passages in Judge Gray’s decision have been quoted with approval. But I cannot for the life of me find any. This may have something to do with the fact that the search function on the new UT website is a bit rubbish…....but if anyone has got anything I’d be grateful.
Ta.
[ Edited: 15 Nov 2017 at 05:56 pm by past caring ]et voilá..here’s a few about proceeding when the appellant is absent.
Standard of reasoning required when tribunal proceeds to hear appeal in absence of claimant who has indicated she is unable to attend LR v Secretary of State for Work and Pensions (ESA): [2017] UKUT 412 (AAC)
Breach of natural justice where tribunal proceeds in claimant’s absence without consulting evidence that corroborates reasons for absence SA v Secretary of State for Work and Pensions (PIP): [2017] UKUT 224 (AAC)
Tribunal should have regard to claimant’s change of residence when deciding whether to proceed in her absence [2016] UKUT 343 (AAC)
There’s probably loads more. If you go to Welfare rights case law (Upper Tribunal) and then use some appropriate search terms, you can often find what you’re looking for amongst the list of results. Not sure whether you’ll find any about their absence becoming an issue part way through a hearing but it might help?
Thanks Paul. Hope the thanks doesn’t sound mealy-mouthed when I say I’m aware of those decisions. They are of limited use to the present case I have (referred to us only at the point where the FtT has already refused permission) because they are variously about a claimant who had indicated they couldn’t attend, or whose reasons for not attending were not believed or who had moved a considerable distance from the hearing venue after the appeal was lodged.
Mine is different - she didn’t show up and didn’t provide any reasons for this. Although she had good reasons, the organisation representing her at the time failed to request a set-aside within a month but did do so (in a ham-fisted way) some three months later as part of its application for LTA - so that particular bird has flown.
Judge Gray’s decision (at least an important bit of it) was to the effect that a tribunal has to keep on considering whether it is in the interests of justice to proceed in the appellant’s absence throughout the hearing - so that a whilst decision to proceed in their absence might be a reasonable one at the outset, it will be unreasonable if it later becomes apparent that there is a conflict in the evidence that could be resolved by hearing the appellant’s evidence and the tribunal do not then revisit the decision as to whether to proceed…...
I am sure there has been some more on that specific point.
Anyway, I think I’ve got an argument on other issues, so it’s not the end of the world - and perhaps as importantly,, I don’t think there’s been anything from the UT that has subsequently disagreed with what Judge Gray said in KO.
Ah I see, can’t help you there I’m afraid. Good luck.
How about RC v Secretary of State for Work and Pensions (PIP) (Tribunal procedure and practice - fair hearing) [2017] UKUT 139 (AAC) (20 March 2017), para 14?
http://www.bailii.org/uk/cases/UKUT/AAC/2017/139.html
Tom
Brilliant Tom, that will do very nicely indeed. As I said, whilst I knew there’d been nothing from the UT disagreeing with that passage from KO it’s very useful to have something more recent where it’s citied with approval.
Putting this here as much because it caused a bit of a stir…
The last ever PCA appeal!