[2024] UKUT 406 (AAC)

The grounds on which the Appellant was granted permission to appeal against the First-tier Tribunal’s decision were described as follows in the Upper Tribunal’s permission determination:

“Ground 1

36.

I grant permission to appeal on the first ground. It is at least arguable that rule 23 of the FtT Rules envisages a substantive hearing, that is a hearing at which parties have the opportunity to provide evidence and submissions relevant to the substantive issues. Arguably, interpreting rule 23 so that the duty to hold a hearing may be satisfied by a hearing on procedural matters alone renders a party’s right to a hearing of little practical value and is unlikely to have been intended by the legislator.

37.

This grant of permission to appeal extends to the Appellant’s subsidiary, or alternative, argument that the FtT acted contrary to the principles of natural justice by deciding the claim without holding a substantive hearing. I consider that the arguments advanced by Mr Dunlop, for the Appellant, have a realistic prospect of success.

38.

My grant of permission to appeal on this ground encompasses the argument that the FtT erred in law by relying on a supposed need to ensure ‘equality of arms’ between the parties. Arguably, the FtT’s inquisitorial role and the aspects of the overriding objective listed in rule 2(2) of the FtT Rules, in particular “ensuring, so far as practicable, that the parties are able to participate fully in the proceedings”, required the FtT to address how any disadvantages that might have been faced by the unrepresented party could have been ameliorated at any hearing before deciding to determine the claims on paper without a further hearing.

39.

This grant of permission to appeal should not be read as including any finding of fact as to the nature of the hearing/s that were held by the FtT. If the Respondent wishes to make submissions about the nature of the hearing/s, it is open to them to do so…

Ground 2

…47. This ground argues that the FtT gave inadequate reasons for rejecting the expert evidence. In relation to Dr Nwagbogu’s evidence, the FtT stopped short of expressly rejecting the doctor’s opinion but my provisional reading is that, in substance, the Tribunal rejected, or gave no weight, to that doctor’s evidence. That seems to me the most obvious explanation for the finding that [S] had no impairment. I consider that the Appellant has a realistic prospect of persuading the Upper Tribunal that the FtT’s reasons for rejecting the diagnostic evidence were inadequate. It is clear that both clinicians assessed the children in person: this was not a ‘diagnosis on the papers’. I think it is also clear that both clinicians may properly be regarded as specialists. And, as members of registered clinical professions, both clinicians must have been subject to certain professional duties which, I provisionally assume, extended to the clinical activity of diagnosing a medical condition. In those circumstances, arguably the FtT needed to give a fuller explanation as to why the evidence was rejected. Arguably, adequate reasons would have explained why expert diagnostic evidence was rejected despite the diagnoses having been preceded by personal examination/observation and despite the clinicians having evidently thought that they had sufficient material on which to base a diagnosis.

48.

The argument that the FtT acted unfairly also has a realistic prospect of success in my judgment. Mr Perkins, for the Respondent, argues that the School did not formally concede diagnosis but, on my reading of the papers, it did not indicate, or intimate, that the diagnoses were not accepted. Since the rejection of the expert evidence was probably fatal for the Appellant’s claims (making it virtually impossible for her to establish disability), arguably fairness, or natural justice, required the FtT to put the Appellant on notice that the evidence might be rejected or, alternatively or in addition, give case management directions that might have addressed the FtT’s concerns about the material on which the diagnoses were based (e.g. in [S’s] case for disclosure of the questionnaires referred, but not appended, to Dr Nwagbogu’s report).

49.

I grant permission to appeal on ground 2 to the extent described above.”