[2024] UKUT 411 (AAC)

The Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2009 (the “HESC Rules”) set out the rules with which the First-tier Tribunal and the parties to proceedings before it, must comply. For the convenience of those unfamiliar with them, I set out below the text of the provisions most relevant to this case.

Rule 2 of the HESC Rules sets out the ‘overriding objective’ of the HESC Rules. It provides:

“Overriding objective and parties’ obligation to co-operate with the Tribunal

2.- (1) The overriding objective of these Rules is to enable the Tribunal to deal with cases fairly and justly.

(2)

Dealing with a case fairly and justly includes-

(a)

dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties;

(b)

avoiding unnecessary formality and seeking flexibility in the proceedings;

(c)

ensuring, so far as practicable, that the parties are able to participate fully in the proceedings;

(d)

using any special expertise of the Tribunal effectively; and

(e)

avoiding delay, so far as compatible with proper consideration of the issues.

(3)

The Tribunal must seek to give effect to the overriding objective when it-

(a)

exercises any power under these Rules; or

(b)

interprets any rule or practice direction.

(4)

Parties must-

(a)

help the Tribunal to further the overriding objective; and

(b)

co-operate with the Tribunal generally.”

Rule 4 of the HESC Rules allows non-judicial tribunal staff to carry out judicial functions. It provides:

“Delegation to staff

4.- (1) Staff appointed under section 40(1) of the [Tribunals, Courts and Enforcement Act 2007] (tribunal staff and services) or section 2(1) of the Courts Act 2003 (court officers, staff and services) may, if authorised by the Senior President of Tribunals under paragraph 3(3) of Schedule 5 to the [Tribunals, Courts and Enforcement Act 2007], carry out functions of a judicial nature permitted or required to be done by the Tribunal.”

Rules 5 of the HESC Rules gives the First-tier Tribunal extensive case management powers. It provides:

“Case management powers

5.- (1) Subject to the provisions of the [Tribunals, Courts and Enforcement Act 2007] any any other enactment, the Tribunal may regulate its own procedure.

(2)

The Tribunal may give a direction in relation to the conduct or disposal of proceedings at any time, including a direction amending, suspending or setting aside an earlier direction.

(3)

In particular, and without restricting the general powers in paragraphs (1) and (2), the Tribunal may-

(a)

extend or shorten the time for complying with any rule, practice direction or direction, unless such extension or shortening would conflict with a provision of another enactment containing a time limit;

(b)

consolidate or hear together two or more sets of proceedings or parts of proceedings raising common issues, or treat a case as a lead case;

(c)

permit or require a party to amend a document;

(d)

permit or require a party or another person to provide documents, information or submissions to the Tribunal or a party;

(e)

deal with an issue in the proceedings as a preliminary issue;

(f)

hold a hearing to consider any matter, including a case management issue;

(g)

decide the form of any hearing;

(h)

adjourn or postpone a hearing;

(i)

require a party to produce a bundle for a hearing;

(j)

stay proceedings;

(k)

transfer proceedings to another court or tribunal if that other court or tribunal has jurisdiction in relation to the proceedings and-

(i)

because of a change of circumstances since the proceedings were started, the Tribunal no longer has jurisdiction in relation to the proceedings; or

(ii)

the Tribunal considers that the other court or tribunal is a more appropriate forum for the determination of the case;

(l)

suspend the effect of its own decision pending the determination by the Tribunal or the Upper Tribunal of an application for permission to appeal against, and any appeal or review of that decision.”

Rule 11 of the HESC Rules deals with the appointment of representatives. It provides, so far as relevant to the circumstances of this case:

“Representatives

11.

…

(7)

In a mental health case, if the patient has not appointed a representative, the Tribunal may appoint a legal representative for the patient where –

(a)

The patient has stated that they do not wish to conduct their own case or that they wish to be represented; or

(b)

The patient lacks the capacity to appoint a representative but the Tribunal believes that it is in the patient’s best interests for the patient to be represented…”

Rule 34 of the HESC Rules deals with when a pre-hearing examination is required. It provides:

“Medical examination of the patient

34.- (1) Where paragraph (2) applies, an appropriate member of the Tribunal must, so far as practicable, examine the patient in order to form an opinion of the patient’s mental condition, and may do so in private.

(2)

This paragraph applies-

(a)

in proceedings under section 66(1)(a) of the Mental Health Act 1983 (application in respect of an admission for assessment) ,unless the Tribunal is satisfied that the patient does not want such an examination;

(b)

in any other case, if the patient or the patient’s representative has informed the Tribunal in writing, not less than 14 days before the hearing, that –

(i)

the patient; or

(ii)

if the patient lacks the capacity to make such a decision, the patient’s representative,

wishes there to be such an examination; or

(c)

if the Tribunal has directed that there be such an examination.”

Rule 39 of the HESC Rules deals with hearings in a party’s absence. It provides:

“Hearings in a party’s absence

39.- (1) Subject to paragraph (2), if a party fails to attend a hearing the Tribunal may proceed with the hearing if the Tribunal-

(a)

is satisfied that the party has been notified of the hearing or that reasonable steps have been taken to notify the party of the hearing; and

(b)

considers that it is in the interests of justice to proceed with the hearing.

(2)

The Tribunal may not proceed with a hearing that the patient has failed to attend unless the Tribunal is satisfied that-

(a)

the patient –

(i)

has decided not to attend the hearing; or

(ii)

is unable to attend the hearing for reasons of ill health; and

(b)

an examination under rule 34 (medical examination of the patient)-

(i)

has been carried out; or

(ii)

is impractical or unnecessary.”