[2025] UKUT 347 (AAC)

The grounds of appeal and the Appellant’s submissions

The grounds of appeal complain that the OTC should have asked Mr Lusted for further evidence as to when the advertisement was published rather than simply referring the application to the TC and for it then to be refused.

Analysis

It is fortunate for Mr Lusted that during our discussions prior to the Tribunal hearing commencing, we had identified the failure of the OTC to make any attempt to clarify the date upon which the advertisement was published, bearing in mind that the answer to the question “Date advertisement was placed (our emphasis) was “28^th February 2025”. That was clearly wrong. We say “fortunate” because it transpired that Mr Lusted was in Spain on the day of the hearing and did not think to ask for an adjournment or inform the Tribunal in good time that he would like to join the hearing by telephone from abroad. Urgent consideration had to be given to the provisions of the Upper Tribunal (Administrative Appeals Chamber) Guidance Note – Oral Evidence from Abroad. Having been satisfied that we would not be taking evidence but rather, hearing submissions, we gave him permission to do so. However, rather than follow the CVP guidelines which advise that parties to CVP hearings should be in a room where they cannot be overheard, Mr Lusted was sitting in a busy bar in a square in Barcelona, drinking. His manner and conduct and the way he addressed the Tribunal were highly disrespectful and rude. The hearing was short-lived. If we had not identified the short-comings in the decision making process in this case prior to the hearing, we would have adjourned the hearing and required Mr Lusted to attend a face to face hearing in London in order to present his appeal.

Conclusion

In the event, we are satisfied that it was procedurally unfair to proceed to a determination without any attempt to clarify the publication date of the advertisement and that as a result, the Tribunal must allow this appeal as per the test in Bradley Fold Travel & Peter Wright v Secretary of State for Transport (2010) EWCA Civ.695. The appeal is allowed. The application is to be remitted to the OTC for further consideration.

Authorised by the Judge for issue on 13^th October 2025