[2024] UKUT 139 (AAC)

For the reasons set out above, I have concluded that the Tribunal materially erred in law in its determination of the appellants’ reasonable adjustments claims. Under s 12 of the Tribunals Courts and Enforcement Act 2007, I have power where I conclude that the First-tier Tribunal has erred in law to set the decision (or part of it) aside and either remit the case for re-determination by the same or a fresh Tribunal or to re-make the decision myself: see generally Sarkar v SSHD [2014] EWCA Civ 195, [2014] Imm AR 911 at [15].

Mr Broach urged me, if the appeal succeeded, to re-make the decision on the basis of the documentary evidence in the bundle. Mr Wilson, however, more realistically accepted that if the appeal succeeded on essentially the basis for which Mr Broach contended (i.e. on the basis that there had been a wholesale erroneous approach by the Tribunal) that there was unlikely to be any alternative to remitting the whole of the reasonable adjustments case for re-determination.

In the event, although only two grounds of appeal succeeded, it seems to me for the reasons I have given above that the Tribunal’s approach to the reasonable adjustments element of this case was erroneous and that as a result there has been a wholesale failure to determine the claim that was actually made. The determination of the reasonable adjustments claim needs to start again, beginning with case management to ensure that the issues are properly identified (including any time points that arise). It is not appropriate for me to re-make the decision. Further oral evidence may well be necessary and detailed findings of fact are required. This is not the open-and-shut case that Mr Broach at times made it out to be.

I have considered whether the fact that this panel has already reached unimpeached conclusions on the appellant’s other two claims poses any difficulty for remission, but it seems to me that the issues that arose on the reasonable adjustments claim are properly separable from the other claims on which the appellants succeeded at first instance, so that in itself is not a reason for this to go back to the same panel. The hearing itself took place over a year ago so memories will have faded and there will be no great saving of time from remitting to the same rather than a different Tribunal. Finally, although there is no reason to doubt the professionalism of either of the members of the Tribunal panel, it would be difficult for even the most conscientious of judges truly to approach this case with the fresh mind that is required in order for it to have a fair hearing on remission.

I therefore set the decision aside insofar as concerns the reasonable adjustments claim and remit that claim for re-determination by a fresh Tribunal.