IA v The Secretary of State for Work and Pensions

On 30 November 2016, IA was working as a warehouse operative when he sustained an injury at work. On 06 November 2017, IA claimed industrial injuries disablement benefit (“IIDB”). The Department for Work and Pensions (“DWP”) asked IA to take part in a medical examination by a doctor on 02 January 2018.

The medical adviser advised DWP their opinion was that, after 14 March 2017, IA had no remaining loss of faculty from the accident. Having received that advice, a DWP decision maker decided IA was not entitled to IIDB. On 30 April 2018, IA lodged an appeal with the First-tier Tribunal.

On 04 September 2018, a First-tier Tribunal decided IA’s appeal. IA was not present, and the Tribunal decided to proceed in his absence. The Tribunal refused IA’s appeal. On 27 February 2020, a salaried Tribunal Judge set aside the Tribunal’s decision under rule 37 of the Tribunal Procedure (First-tier Tribunal) Rules 2008 (“the FTT Rules 2008”).

IA’s appeal was then listed for 06 May 2021, but on 17 April 2021, IA requested a postponement on the basis it was the month of Ramadan and he would not be in the best position to give evidence. He asked the First-tier Tribunal not to keep (i.e., list) any hearings in Ramadan.

IA’s appeal was relisted for 26 May 2021. It was adjourned by the First-tier Tribunal on the basis IA was seeking private medical treatment. The Tribunal directed for IA to obtain his medical records from his GP for the period from 01 January 2014 to 2021.

On 09 February 2022, IA’s appeal was adjourned because when he was telephoned to take part, IA’s wife spoke to the clerk saying IA was unwell and the clerk confirmed he could hear the sound of vomiting in the background during the telephone call. The adjournment notice stated that IA had previously requested the hearing be postponed as he had changed address and mislaid his papers. The adjournment notice also confirmed that IA subsequently emailed the Tribunal Service to confirm he would not be attending because he was suffering overwhelming anxiety and stress.

On 30 May 2022, IA’s appeal was again adjourned because the Tribunal did not have his medical records. IA emailed his medical records to the Tribunal on 30 May 2022. The adjournment notice states there were over 600 pages of GP and hospital records but some records were not relevant, there was not time to identify which ones were, and the hearing had to be adjourned to ensure the Tribunal only considered the necessary records.

On 17 February 2023, a First-tier Tribunal (“the FTT”) decided IA’s appeal. IA did not take part in it. The Decision Notice records that IA did not attend the hearing despite having been notified of it by HMCTS more than 2 weeks earlier. The Notice states that despite repeated attempts by the clerk to the Tribunal, IA was not contactable by telephone. The FTT confirmed DWP’s decision that IA had no remaining loss of faculty from his accident by 14 March 2017.

IA emailed HMCTS on 16 March 2023, stating he was told in a previous Tribunal hearing that the hearing would take place in October which did not happen and he received no contact (about it). He referred to matters about the substance of his appeal.

On 09 May 2023, the FTT issued a Statement of Reasons for its decision. Within the document, the FTT addressed whether or not to set aside its decision under rule 37 of the FTT Rules 2008 (paragraphs 3 to 19). The FTT decided not to set aside its decision. Paragraphs 21 to 55 of the Statement of Reasons set out its decision.

On 03 June 2023, IA requested permission to appeal to the Upper Tribunal. In a decision dated 10 July 2023, issued on 31 July 2023, a salaried FTT judge refused IA permission to appeal to the Upper Tribunal.

In a Decision Notice dated 16 May 2024, issued on 24 May 2024, the same salaried FTT Judge explained that IA continued to challenge the decision made by the Tribunal issued to him on 17 February 2023. The FTT Judge wrote that the FTT had explained its decision in a Statement of Reasons, which had been issued to IA on 09 May 2023. The FTT stated it would be attaching a copy of that document to the Decision Notice.

On 12 September 2024, the Upper Tribunal received an application from IA requesting permission to appeal against the FTT’s decision dated 17 February 2023. In a decision dated 24 January 2025, I extended time for IA to make his application and admitted his application for consideration. I did so having received a series of emails the First-tier Tribunal forwarded to the Upper Tribunal on 04 January 2024. The Upper Tribunal forwarded me those emails when I asked them to check whether IA had contacted the Upper Tribunal before 12 September 2024.

In extending time and admitting IA’s application to be considered, I took into account the following:

Having decided to admit IA’s late application, I granted him permission to appeal against the FTT’s decision dated 17 February 2023 on the basis it was arguable the following errors of law may have been made:

Ms U. Ali is the Secretary of State’s representative in these proceedings. She supports the appeal in a helpful written submission dated 03 March 2025. Ms Ali invites the Upper Tribunal to set aside the FTT’s decision dated 17 February 2023 for containing material errors of law, for the reasons set out below.

Ms Ali submits that the FTT made an error of law by proceeding with the hearing when there was an outstanding request for a postponement.

Ms Ali also submits the FTT failed to explain adequately why it decided to proceed in IA’s absence. Rule 31 of the FTT Rules 2008 sets out:

Ms Ali submits that looking at the FTT’s Statement of Reasons, it did not clearly consider rule 31(1)(b). The FTT had mentioned it by stating it considered it was in the interests of justice to determine the appeal in IA’s absence (paragraph 13 of Statement of Reasons). Ms Ali submits, however, that the FTT failed to explain why it found it in the interests of justice to proceed with the hearing.

Ms Ali also submits the FTT made an error of law by failing to set aside its decision under rule 37 of the FTT Rules 2008. She observes that IA sent a request for a postponement on 06 February 2023, but it was not acknowledged by the First-tier Tribunal until nearly three weeks later. Ms Ali refers to the fact the Statement of Reasons stated nothing further was heard from IA. She submits that it is more than reasonable to conclude that IA’s email infers he was applying to postpone the hearing, as he was requesting it be heard on an alternative date. Ms Ali submits it is reasonable to conclude that when considering whether to set aside the decision under rule 37, the FTT did not consider IA’s application dated 06 February 2023, because there is no mention of that email in the Statement of Reasons.

Ms Ali submits that the FTT did not make a full consideration of rule 37. She submits the FTT had the basis to set aside its decision dated 17 February 2023 under rule 37(2)(b) of the FTT Rules 2008, as the postponement request was not forwarded to the FTT Judge (and thus not taken into account) and it was in the interests of justice to do so, to allow IA to fully participate.

Since May 2025, IA has been represented by Mr Malik of the Central England Law Centre. Having seen Ms Ali’s submissions, Mr Malik indicated he agreed with her position and requested the FTT’s decision be set aside and IA’s appeal be remitted for a new hearing.

Neither party requested an oral hearing of the appeal. I took these preferences into account. I considered the appeal file. I decided the interests of justice did not require an oral hearing. The parties agree the FTT made material errors of law. It was proportionate to determine the appeal on the papers.

At the permission stage, I only needed to be persuaded that it was arguable with a realistic (as opposed to fanciful) prospect of success that the FTT had made an error of law in a way that was material.

At this substantive stage, I need to be satisfied on the balance of probabilities that the FTT did make an error or errors of law that were material.

I am satisfied, on the balance of probabilities, that the FTT made material errors of law, broadly for Ms Ali’s submissions summarised at paragraphs 17 and 20 to 21 above. In particular, I am satisfied it was procedurally irregular for the FTT to determine IA’s appeal on 17 February 2023 at a time when he had an outstanding request for the hearing to be postponed.

In KH v CMEC (CSM) [2012] UKUT 329 (AAC) (“KH”- also published as CCS/2922/2011), Upper Tribunal Judge Mesher confirmed that the existence of rule 37 of the FTT Rules 2008 does not prevent a person relying on the matters covered by rule 37 to indicate there had been an error of law through breaching the principles of natural justice. He confirmed this extended to circumstances where the FTT had made findings of fact in a decision refusing to set aside an earlier decision under rule 37 of the FTT Rules 2008.

Judge Mesher was considering the question of an appellant not receiving notice of a hearing rather than an outstanding postponement request not being dealt with. However, both those circumstances and IA’s circumstances deal with the impact of procedural irregularity on a party being able to have access to a Tribunal and to be heard at an oral hearing if one is requested.

In KH, having heard from KH at an oral hearing, Judge Mesher explained he was satisfied KH had not received notification of his appeal hearing and the decision made by the First-tier Tribunal in his absence was a breach of the principles of natural justice. Judge Mesher concluded that KH was, through no fault of the tribunal or of the First-tier Tribunal administration, and through no fault of his own, deprived of a fair opportunity to make his case to the Tribunal at the appeal hearing (paragraph 23 of Decision).

Judge Mesher proceeded to explain that in all but exceptional cases, it would follow from such a conclusion that the tribunal’s decision should be set aside. He stated that no one can say what difference the presence of the party, including the evidence that might have been given, or the doubt cast on other evidence, might have made. Judge Mesher gave an example of an exceptional case where this might not happen, namely where the tribunal’s decision gave the absent party everything he should have been given under his version of the case (paragraph 24 of Decision).

In my assessment, the principle established in KH is applicable to IA. I am satisfied that there was a breach of natural justice in the appeal being determined at a time when he had an outstanding request for a postponement. Another way to put this is that there was a procedural irregularity in the proceedings capable of making a material difference to the outcome or the fairness of proceedings (paragraph 9vi) of R (Iran) v SSHD [2005] EWCA Civ 982).

In KH, Judge Mesher described a situation where no one was at fault for what happened. Here, the FTT Judge cannot, and should not be, considered to be at fault for failing to deal with / take into account a postponement request that was not brought to his attention. This includes the fact IA did not mention it in his email dated 16 March 2023.

It is arguable IA should have provided an appeal reference number or hearing date in his email dated 06 February 2023. He also did not follow up with HMCTS before 17 February 2023, despite knowing this was the hearing date. Arguably, HMCTS should have checked the information IA had provided (a full name and a national insurance number) on its online appeal system and referred the matter to the relevant Judge. Hearing dates are generally sent out by the First-tier Tribunal around two to four weeks before a hearing. Here, there was a delay of nearly 3 weeks by HMCTS in responding to IA’s postponement request and then the response was only to ask for further information.

This difference from the situation in KH does not, however, change the fact there was a breach of natural justice in IA’s case.

I have considered whether IA’s case could be said to be one of the exceptional cases identified by Judge Mesher in KH. I do not consider it could. The matters addressed at paragraphs 32 to 33 above do not mean IA’s case is an exceptional one.

Nor can it be said that had the FTT known of IA’s postponement request, it would have made no difference to the outcome of his appeal or the fairness of proceedings. When deciding whether to set aside the decision dated 17 February 2023, the FTT Judge considered it relevant that nothing was heard from IA after the hearing notice was sent to him. If it had not been relevant, the FTT Judge would not have mentioned it at paragraph 12 of the Statement of Reasons. I do not ignore the face there have been a substantial number of postponements and adjournments in IA’s appeal. I take into account, however, that the Statement of Reasons does not indicate that the FTT Judge would have refused any postponement request even if IA had made one. In these circumstances, it cannot be concluded that the FTT would always have decided to proceed.

Nor can it be said that IA’s presence at the appeal would have made no difference to the outcome. This is not a case where the First-tier Tribunal effectively gave IA everything he asked for in his appeal.

I therefore conclude the FTT’s decision involved a material error of law, namely a procedural irregularity in the proceedings capable of making a material difference to the outcome, or the fairness, of those proceedings.

Having decided the FTT’s decision involved a material error of law, it is appropriate to exercise my discretion to set aside the Tribunal’s decision dated 17 February 2023 under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007. Having done so, section 12(2)(b) of that Act provides that I must either remit the case to the First-tier Tribunal with directions for their reconsideration or remake the decision.

No party has asked me to remake the FTT’s decision. In any event, it is necessary for further facts to be found. The First-tier Tribunal is best placed to evaluate the evidence, including using its medical expertise, and to make appropriate findings of fact.

I therefore remit IA’s appeal for rehearing before a new First-tier Tribunal. It will make a fresh decision about whether IA had any entitlement to IIDB.

Although I have set aside the FTT’s decision dated 17 February 2023, I am not making any findings, or expressing any view, about whether IA should be entitled to IIDB. The next tribunal will need to hear evidence, make its own findings of fact, and provide its reasoning for the decision it reaches.