IN THE UPPER TRIBUNAL                                        Appeal No.  CH/2307/2009   
ADMINISTRATIVE APPEALS CHAMBER

Before Judge S M Lane

This decision is made under section 12(1) and (2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007.

The decision of the tribunal in the appeal heard on 20/5/09 under reference 919/09/00470 is SET ASIDE because its making involved an error on a point of law. 

The appeal is REMITTED to a fully reconstituted tribunal for a complete rehearing.

REASONS FOR DECISION

1	I apologise to the appellant for the delay in issuing this decision.  The Tribunals Service (Upper Tribunal) contacted the respondent’s representative on several occasions for their response to my observations without success, which has substantially increased the time it has taken to deal with this appeal.  

2	The appellant Authority brings this appeal with the permission of a First-tier Tribunal judge.  He granted permission on the basis that the tribunal arguably erred in law in not adjourning a hearing which the Authority elected not to attend.  At the hearing, the claimant (who is the respondent in the appeal) gave oral evidence which substantially conflicted with his previous account of events.  The Authority submits that it could have rebutted that evidence by reference to computer and other records had they been given the opportunity.  In addition, I observed when granting permission that the tribunal arguably erred by failing to address the Authority’s evidence and failed even to note the conflicts in the appellant’s evidence and resolve them.  Because of these, the tribunal failed to give adequate reasons for its decision.  

3	I have come to the conclusion that the appeal must be allowed on both grounds.  

4	Breach of Natural Justice:  A party must be given a fair opportunity to present his case.  Where a party has elected not to attend a hearing, he takes the risk that evidence of which he was previously unaware will be presented.  While a tribunal cannot be expected to adjourn a hearing simply because an attendee’s evidence does not conform precisely to what he has said in the papers, there comes a point where the divergence is so significant that the issue of whether it is necessary to adjourn arises.

5	In this appeal, the oral evidence unexpectedly raised matters upon which the Authority would normally be expected to keep records:  visits by the claimant and the date on which it moved offices.  The appellant stated that he made further visits to the civic centre and that the Authority’s move to new premises had resulted in confusion over his claim at the material time.  

6	Where a party unexpectedly gives oral evidence materially different from his previous evidence, certainly where that evidence is of a type on which the other party is likely to keep records and which the tribunal considers significant, the absent should be given the opportunity to rebut that evidence.  

7	In a case as extreme as this, the tribunal should have adjourned.  That was a material error of law which resulted in the Authority being denied the opportunity of putting its case.

8	The impact of the Tribunal Procedure (First-tier Tribunal)(Social Entitlement Chamber) Rules 2008: The Tribunal Procedure (First-tier Tribunal)(Social Entitlement Chamber) Rules 2008 are, of course, also relevant to this appeal.  The tribunal has the power to proceed with a hearing where a party fails to attend, but can only do so if it is in the interests of justice to proceed with the hearing: 31(b).  The fact that the absent party has not requested an oral hearing and did not consider it necessary to send a representative is a powerful factor in proceeding in their absence.  But the interests of justice must be considered, as well as the overriding objective under rule 2 to treat cases fairly and justly.  The tribunal did not address its mind to these issues, which plainly arose under the Rules.  This was a further material error.  

9	Did the tribunal give sufficient reasons for its decision?  The tribunal failed to identify sufficiently the information available to the appellant, who had been in receipt of HB since at least 2001, to analyse sufficiently the evidence as a whole in drawing its inferences (CH/3439/2004), and thereby failed to give adequate reasons for its decision.  For example, the tribunal accepted the appellant’s oral evidence without considering manifest inconsistencies with the written evidence:  was he away for 4 weeks at a time, as asserted in his letter at page 24, or 3 – 4 months at a time, as asserted in oral evidence?  If the latter, how did he manage to make cash payments of rent on a regular basis? (p29).  (He did not give evidence that his son did this for him.)  Indeed, if as the tribunal accepted, he was away from home for 3 – 4 months at a time, might this not cast doubt on the tribunal’s view in paragraph 12 that the appellant would have acted immediately upon the letter, had he received it, given that there are 3 months between March and June?  One is also driven to ask about the basis upon which the tribunal accepted that the appellant did not receive a notification in March 2008 of the annual uprating when there was no evidence (apart from the appellant’s dim view of the Authority) of other failures of communication between him and the Authority:  for example, he did not dispute receipt of the recalculation of his benefit after he moved to his new home on 13/9/07 and the recalculation of Council Tax to include single person’s discount, 4/1/08.  If he did not receive any notification of a change in benefit following entry into a full time job, on what basis could he reasonably believe that his benefit had reduced or ended to reflect his increased earning?  Why did the tribunal find his explanation about his rent account credit balance plausible?

10	I am unable to substitute my own decision and accordingly remit the appeal to a freshly constituted First-tier Tribunal to rehear.  

[Signed on original]		S M Lane
		Judge of the Upper Tribunal 
[Date]		13 January 2011