CF v Secretary of State for Work and Pensions & Anor.

A First-tier Tribunal must hold an oral hearing before finally disposing of proceedings unless every party consents, or does not object, to determination without a hearing and the Tribunal can decide the matter without one. An earlier case-management hearing does not satisfy that requirement where the appeal is later decided on the papers following an adjournment.

Fairness also requires parties to have an opportunity to address further evidence. A direction withholding information under Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, rule 14(2), requires likely serious harm and a proportionate outcome in the interests of justice. The ordinary position is disclosure of evidence to the tribunal and all parties.

The father appealed against a First-tier Tribunal decision which had confirmed a Child Maintenance Service decision that his daughter remained a qualifying child during the 2017/18 academic year.

The appeal had previously been adjourned after a case-management hearing, with a direction for a further hearing. Further education evidence, apparently provided by the mother and extensively redacted, was later included in the file but was not issued to the father. A differently constituted First-tier Tribunal then dismissed the appeal on the papers.

The principal issue was whether that final paper determination complied with the First-tier Tribunal’s procedural rules and natural justice.

1. Appeal allowed. The First-tier Tribunal made a material error of law. Its decision was set aside and the underlying child-support appeal was remitted to a differently constituted First-tier Tribunal for an oral re-hearing.

2. Rule 27(1) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 is mandatory. A tribunal disposing of proceedings must hold an oral hearing unless both conditions in rule 27(1)(a) and (b) are met. Although the judge considered that the appeal could be decided without a hearing, the parties had not consented to, and the father had not failed to object to, that course.

3. An earlier oral case-management hearing did not exhaust the father’s entitlement to an oral hearing. That entitlement extended to the resumed or adjourned hearing, particularly where further evidence had been obtained. The approach was consistent with RW v Secretary of State for Work and Pensions (IB) [2013] UKUT 238 (AAC) and the unreported decision CE/1218/2013.

4. The procedure was also unfair. A further hearing had expressly been directed, the tribunal deciding the case had no record of evidence given in 2019, and the father had not been given the opportunity to comment on the later education evidence.

5. Absent a valid confidentiality or non-disclosure direction, evidence and submissions should be available equally to the tribunal and every party. Rule 19 protects addresses and information enabling an address to be identified. Rule 14(2) permits wider non-disclosure only where disclosure would be likely to cause serious harm and the direction would be proportionate in the interests of justice. The existing redactions had not been judicially assessed under that test.

6. The Upper Tribunal refused the father’s application for immediate unredacted disclosure. The issue was better determined by the fact-finding First-tier Tribunal on remission. It was directed to consider case-management directions, including whether any redactions were justified under rule 14(2).

• Upper Tribunal (Administrative Appeals Chamber): Allowed the father’s appeal, set aside the First-tier Tribunal’s decision for legal error, and remitted the case for an oral re-hearing under Tribunals, Courts and Enforcement Act 2007, section 12(2)(a) and (b)(i).
• First-tier Tribunal (Social Entitlement Chamber): On 9 October 2020 dismissed the father’s appeal on the papers and confirmed the CMS decision of 25 October 2017.