[2024] UKUT 406 (AAC)

For the purposes of rule 23(1) of the 2008 Rules, the Appellant notes that no party expressly consented to the claims being determined without a hearing. The Appellant submits that, accordingly, rule 23 required the First-tier Tribunal to hold a hearing. This must mean a hearing in which the parties have the opportunity to provide evidence and submissions on the substantive issues – the issues which may ‘dispose of the proceedings’ as rule 23(1) puts it. This is consistent with an obvious purpose of rule 23 namely to ensure that parties are not left with the sense of injustice likely to follow if important issues are decided without giving them a full opportunity to participate, which includes by presenting oral evidence. The present Tribunal did not have both parties’ consent to decide the claims without a hearing. Its approach was clearly in contravention of rule 23.

Regarding the School’s argument that a hearing did take place and ‘some oral evidence was taken at the hearing insofar as it was deemed necessary’, the Appellant submits that no oral evidence was taken as to any substantive issue. The Appellant submits that there is no merit in the School’s argument that, since rule 45 authorises determination of a case in a party’s absence, it must permit what was done by the Tribunal in this case (refuse to hear evidence from a party’s witness). Rule 45(2)(c) is predicated on a hearing having been held (which a party or representative did not attend). Here, the decision-making process was carried out on the papers. What the Tribunal should have done was decide whether it could proceed with a hearing on 19 April 2023 in the absence of one of the parties. Had it proceeded with a hearing, it would have heard from those parties and witnesses who had attended and were willing to give evidence on substantive issues, which included Ms McDougall

Properly construed, rule 27 supports the Appellant’s case and the School’s reliance on that rule is misconceived. If a party fails to attend a hearing, rule 27 requires it to either hear the case in the party’s absence or adjourn. What it does not permit is a determination, once a hearing has begun, and it is clear that a party is absent, to dispense with the hearing and instead decide a claim on the papers.

The Appellant submits that the ‘equality of arms’ principle provided no justification for the Tribunal’s approach. If a party, voluntarily and with good reason, chooses not to attend a hearing, the Tribunal should hear the evidence and submissions of the party and those witnesses who have attended. If fairness or justice requires it, the Tribunal can exercise its inquisitorial function by putting questions to the attending party’s witnesses of the kind that the absent party might have put. That is how any equality of arms concern should be dealt with, not by proceeding without a hearing.

The School advance arguments by reference to rule 27 but these have no merit because the Tribunal clearly did not proceed under that rule (the Tribunal did the opposite of that permitted by rule 27). It is absurd to suggest that terminating the hearing was, in fact, the same thing as proceeding with a hearing under rule 27. The School’s argument that the Appellant impliedly consented to a decision without a hearing also has no merit and finds no support in the evidence. The Appellant sought an adjournment of the hearing on 19 April 2023, an act that cannot possibly be interpreted as implied consent to a decision without a hearing. The argument that the Appellant’s submissions require a tribunal to adjourn if a party fails to attend a hearing also has no merit. The Tribunal does not have to adjourn because rule 27 empowers it to proceed with a hearing in a party’s absence.

Aside from rule 23, this was a case in which the material facts in dispute could not fairly have been resolved on the written evidence. Fairness required an oral hearing (R (Osborn) v Parole Board [2013] UKSC 61, [2014] AC 1115 per Lord Reed at [66]-[69]). The key factual dispute between the parties concerned the adverse impact of D and S’s diagnosed impairments. On that key factual dispute, the Appellant’ witness, Ms McDougall, was available to give evidence. She had far more personal knowledge of the children than any of the School’s witnesses yet the Tribunal made findings that were directly contradictory to her evidence. If the Tribunal considered Ms McDougall’s evidence, they must have rejected it. It was unfair and a breach of natural justice to do so without hearing from her. The School’s submissions do not deal meaningfully with this aspect of ground 1 engaging instead in an attempt to minimize the likely impact of Ms McDougall’s evidence had there been an oral hearing.

The School misunderstand the law by arguing that fairness is ‘a matter for the fact-finding tribunal’. The Upper Tribunal must determine for itself whether a fair procedure was followed (Osborn at [65]). The School also fail to recognise that, as a matter of law, a party may complain about their witness not having been questioned on key elements of disputed evidence. The Supreme Court in Griffiths v TUI UK Ltd [2023] UKSC 48; [2023] 3 WLR 1204 at [42] said:

“…In general a party is required to challenge in cross-examination the evidence of any witness of the opposing party if he wishes to submit to the court that the evidence should not be accepted on that point. The rule applies in civil cases … In general the CPR does not alter that position.

This rule serves the important function of giving the witness the opportunity of explaining any contradiction or alleged problem with his evidence. If a party has decided not to cross-examine on a particular important point, he will be in difficulty in submitting that the evidence should be rejected.”

Here, there was a factual dispute as to whether the children were disabled and, in that respect, Ms McDougall’s evidence was in direct conflict with that relied on by the School. The only fair way of resolving this factual dispute was to ensure each party’s witnesses had the opportunity to explain the apparent contradiction in the evidence. This could have been done either in cross-examination or, in the Appellant’s absence, through exercise of the Tribunal’s inquisitorial function. The failure to do either was unfair, both to the Appellant and Ms McDougall who had no opportunity to explain the apparent contradiction between her own evidence and the School’s. The absences of Drs Vassiliadou and Nwagbogu, relied on by the School, were irrelevant and did not justify the Tribunal’s approach in relation to Ms McDougall’s evidence who was present.

Oral hearings improve the chances of a Tribunal reaching the right decision (Osborn at [67]). Important points are less likely to be overlooked, as they in fact were in this case. The Tribunal’s reasons made no mention of Ms McDougall’s evidence nor the submissions on ‘adverse impact’ in paragraphs 35 to 37 of the Appellant’s skeleton argument.