[2024] UKUT 406 (AAC)

The first issue to address under Ground 1 is the correct interpretation of rule 23(1) of the 2008 Rules. The issue is here not so much what the rule means by a ‘hearing’ but what it means to hold a hearing before ‘making a decision which disposes of the proceedings’. A decision disposes of proceedings if it determines all disputed issues in the proceedings. By virtue of the 2008 Rules’ overriding objective and as a matter of natural justice, disputed issues may not properly be determined without considering each party’s case. Therefore, the way in which rule 23(1) links a hearing with a ‘decision which disposes of the proceedings’ indicates that the hearing required is one in which each party’s case is considered and, of course, a party’s case before the First-tier Tribunal will include submissions and evidence. I therefore conclude that rule 23(1) requires a hearing at which the parties’ submissions and evidence are considered. This does not necessarily require a party’s attendance (see rule 27), but the requirement to hold a hearing before making a disposal decision is not satisfied by a procedural hearing held at some point in the journey towards a decision that disposes of proceedings nor by a hearing at which only some of a party’s case is considered.

It is clear from the present Tribunal’s statement of reasons that, on 19 April 2023, it did not hold a hearing at which both party’s evidence and submissions were considered. A hearing was convened but terminated shortly thereafter once the Tribunal had refused the Appellant’s request for an adjournment. What happened next was not the continuation of a hearing in a party’s absence under rule 27 but consideration of the parties’ cases on the papers (the Tribunal’s reasons say it ‘decided to deal with the claim on the papers’).

The Tribunal’s decision disposing of the Appellant’s 2010 Act claims was not taken following a hearing at which the parties’ cases were considered. In reality, the decision which disposed of proceedings was taken without holding a hearing. That would only have been permitted under rule 23(1) if each party had consented to the claims being decided without a hearing. It is not disputed that express consent was absent. In my judgment, the Appellant’s request for an adjournment of the 19 April 2023 hearing cannot properly be construed as impliedly consenting to a decision without a hearing in the event that the request was refused. The request must have been made in the knowledge that, if refused, a hearing might be held in the Appellant’s absence but that cannot be considered an implied consent to a decision without a hearing. The Tribunal’s decision on the Appellant’s 2010 Act claims was therefore taken in breach of rule 23(1) of the 2008 Rules. ‘Equality of arms’ issues do not arise because such considerations do not permit a tribunal to re-write the 2008 Rules.

The next question is materiality. I am not, at this stage, considering whether the First-tier Tribunal proceedings were conducted fairly (if I were, the Appellant is right that I would be required to decide for myself whether the proceedings were fairly conducted). I have simply decided that the Tribunal acted in contravention of rule 23(1). I shall therefore consider whether the Tribunal’s error was material. In my judgment, the Tribunal could have arrived at a different decision had it not erred by making a decision that disposed of proceedings without holding a hearing. In other words, its error cannot be considered immaterial. In the light of Ms McDougall’s written evidence, some of which was consistent with the ministerial guidance as to the meaning of disability under the 2010 Act (including the ‘adverse impact’ element of the definition), had the Tribunal heard oral evidence from Ms McDougall, who was in attendance, it might have decided that one or both children were disabled for the purposes of the Act. Ground 1 is made out and this appeal therefore succeeds.

I need not address the other aspects of ground 1.