AC-LON-2023-002572 - [2025] EWHC 2324 (Admin)

Criticism is made of the Tribunal taking judicial notice of the nature of oral thrush. The Panel said:

“The panel is aware that oral thrush, in isolation, is not a significantly debilitating condition likely to render her unable to attend this remote hearing and Mrs Tsolo has provided no evidence that her condition does render her unable to attend this hearing.”

It continued:

“The panel noted that oral thrush can be uncomfortable however, this condition should not prevent her from attending the hearing.”

The background is that on 8 July 2023 the appellant emailed the respondent stating she was suffering from oral thrush and started treatment on 7 July 2023. She sought to adjourn the hearing because of illness. She provided a photograph of the medication on 10 July. The prescription date is 7 July and the course was one daily “dose” (tablet, presumably) for two weeks. Therefore, by the opening of the hearing, she would have been nearing the end of course of medication. The prescription of medication does not confirm that the appellant is unfit to attend and engage with the hearing.

On 11 July, the regulator emailed the appellant confirming that her requested adjournment had been refused. It continued in respect of oral thrush:

“In respect of the oral thrush, we can ask the panel to excuse you to allow you attend your appointment.

If the thrush will prevent you from participating in the substantive hearing, we will need a GP report which should:

Identify the doctor (name, GMC pin, etc) and give details of their familiarity with your medical condition(s), including detailing all recent consultations.

Identify with proper particularity your medical condition and explain to what extent your condition(s) affects your participation in the hearing.

Provide a reasoned prognosis and give the panel some confidence that what is being expressed is an independent opinion after a proper examination.”

As noted, in its decision, the Tribunal stated oral thrush “in isolation” is not a “significantly debilitating condition” likely to render her unfit to attend the hearing. This is criticised as not being a matter “within judicial notice” (Grounds, para 6). But in the Grounds, a claim is made in the opposite direction, that oral thrush is a “significantly debilitating illness”. There is no independent evidence or medical confirmation that this medical condition, as experienced by the appellant, was “significantly debilitating”. The submission rests on naked assertion, unconfirmed by evidence. Before this court on appeal, the appellant stated that the oral thrush was “so severe” that she “could not eat”. There is no independent or medical evidence to support this claim. Counsel’s written submission continues that the oral thrush was “likely to render her unable to attend an oral hearing”. Once more, this claim is unevidenced. Vitally, there is no evidence that she was unable to participate in the hearing, and indeed she did after absenting herself for the first two days.

The approach of the Panel is better understood as its trying to do the best it could in light of the limited information provided by the appellant. The Court of Appeal has repeatedly now made is clear that the obligation is on the person seeking the adjournment to supply, as Coulson LJ titled it, “the required standard of medical evidence”. In important respects, the appellant’s written submission answers itself. It states that the symptoms of oral thrust can “vary considerably in severity”. There is no indication from any medical evidence provided how severe, moderate or mild the condition was as at July 2023. Therefore, there is little substance in the submission (Grounds, para 6(ii)) that the Tribunal failed to consider the “specific and obvious effects of oral thrush” and how it impaired the appellant’s ability to concentrate and participate. There was no independent or medical evidence before the Tribunal about the effect on the appellant. Indeed, when the appellant did choose to attend the hearing, she participated and questioned witnesses.

In the absence of such evidence provided by the appellant, the judicial notice taken by the Tribunal is of limited significance. Putting the Panel’s observation about oral thrush to one side, there was simply not the evidential basis provided by the appellant, as was her obligation, for the panel to adjourn the hearing.