[2024] UKUT 406 (AAC)

The School submit that the First-tier Tribunal was put in a difficult position on 19 April 2023. The Appellant had been pressing for an expedited determination of her claims and, pending that determination, had decided to keep her children out of school. The School also argue that the Appellant failed to give the Tribunal advance notice that she would not attend the hearing on 19 April. In fact, the School argue that the Appellant was untruthful about when she became aware that she would be unrepresented.

Rule 27 of the 2008 Rules permits the First-tier Tribunal to proceed with a hearing if a party fails to attend and it considers it in the interests of justice to do so. The Tribunal did so consider and that alone should be sufficient to dispose of Ground 1. While the School do not ‘significantly disagree’ with the Appellant’s argument that rule 23’s reference to a hearing anticipates a hearing which provides the opportunity to provide evidence and submissions on the live issues, the School submit that the Appellant was given this opportunity but chose not to make use of it.

Rule 5(3)(g) permits the Tribunal to decide the form of any hearing and, in this case, the Tribunal decided to conduct the hearing on the basis of the written submissions and evidence received. It was right to do so given the Appellant’s conduct, the delays, and the Rules’ overriding objective.

The Appellant’s case is that the Tribunal erred by not hearing Ms McDougall’s oral evidence. The Appellant now says that Ms McDougall positively wanted to be heard but was prevented from doing so by the Tribunal. That does not accord with the School’s recollection of events and it repeats its request for the Upper Tribunal to obtain a transcript of the Tribunal proceedings (my understanding is that the hearing was not recorded). In any event, the Tribunal is master of its own procedure which extends to deciding whether it needs to question a witness.

The School submit that a party’s non-attendance does not convert a hearing attended by the other party into something other than a hearing (R v Jones [2002] UKHL 5). Adopting a common-sense perspective, the Upper Tribunal is entitled to conclude that what happened on 19 April 2023 was a hearing albeit one which a party failed to attend. Indeed, the Appellant accepts that, in such circumstances, fairness will rarely require the Tribunal to adjourn (Adeogba v GMC [2016] EWCA Civ 162).

The Appellant’s case on Ground 1 leads to absurdity. Had the Tribunal heard from the School’s counsel and witnesses on 19 April 2023, even if only briefly, a hearing would have taken place and the Tribunal’s rule 27 powers would have been available. But if the Tribunal concluded, as it did, that it would be fairer, in the interests of maintaining an equality of arms, to hear nothing from the School then, on the Appellant’s case, no hearing would have taken place and the Tribunal would have been prevented by rule 23 from doing anything other than adjourning. The absurdity is that the Rules ‘apparently require the Tribunal to adopt the less even-handed approach before it can issue a final decision’. Such an odd conclusion should only be adopted if compelled by clear wording within the Rules, but it is not.

The Appellant argues that her witness, Ms McDougall, was available to answer questions on 19 April 2023. However, by that date Ms McDougall had filed no fewer than four witness statements (in total, 272 pages) the last of which post-dated, and responded, to the School’s witness evidence. It cannot plausibly be said that the Appellant did not have a fair opportunity to present Ms McDougall’s evidence in chief to the Tribunal. The Appellant cannot complain that Ms McDougall was not cross-examined by counsel for the School (if that was unfair, the School was the victim). The Appellant’s complaint must therefore be that the Tribunal did not find it necessary to question Ms McDougall. But that was for the Tribunal to determine, and its case management determination is to be lightly interfered with on appeal. Furthermore, the Appellant at no time proposed to call either Dr Vassialadou or Dr Nwagbogu to give evidence. She complains that the Tribunal failed to question Ms McDougall but had herself denied the Tribunal the chance to question either clinician or herself. The Appellant makes an opportunistic complaint without any merit.