[2024] UKUT 244 (AAC)

In granting permission to appeal, I described this ground of appeal as follows:-

The appellant had requested an in-person hearing, but the appellant states she was never offered an in-person hearing and the hearing went ahead as a telephone hearing. The Tribunal notes at [23] that it has “not had the opportunity to see the appellant” but has nowhere in the reasons addressed whether or not it was fair, and in accordance with the overriding objective, to proceed with a telephone hearing in circumstances where the appellant wanted a face-to-face hearing and in person presentation may have had a bearing on the decision.

The Secretary of State again supports this ground of appeal on the basis that the Tribunal’s approach to listing and continuing with the hearing by telephone was materially unfair in this case and/or that the Tribunal gave inadequate reasons for why it considered it was in accordance with the overriding objective to proceed on that basis. The Secretary of State does, however, point out that it was in principle open to the Tribunal to proceed by way of a telephone hearing if it considered it was in the interests of justice to do so.

I agree with the Secretary of State. While the Secretary of State is correct to observe that a telephone hearing is, by rule 1(3) a form of oral hearing, so that the authorities on Tribunals continuing with decisions on the papers when fairness required an oral hearing (such as JP v SSWP [2011] UKUT 459 (AAC)) are not directly relevant, the Tribunal does always bear a continuing responsibility to ensure that a hearing is conducted fairly and in accordance with the overriding objective. In this case, the Tribunal notes in its decision that the appellant had requested an oral hearing, that an oral hearing was supposed to have been listed if possible, and also that it had not had the ‘benefit’ of seeing the appellant in person in a case where the appellant sought to dispute the content of a face-to-face assessment with the Healthcare Practitioner (HCP). Given those combined factors, it was in my judgment incumbent on the Tribunal in this case to consider of its own motion whether it was fair to continue with the hearing by telephone and, if it concluded that it was, to explain why it had reached that decision. As it is, I am not satisfied that the Tribunal even addressed its mind to the question of fairness, or to its power to adjourn of its own motion if need be to ensure that the hearing was fair. The observations of Lady Poole in NB v Social Security Scotland [2023] UT 35 at [23] about the need for Tribunals in appropriate cases to consider adjourning of their own motion for further evidence apply by analogy here. Given