Sajad Hussain v The Information Commissioner

A tribunal must take a party’s dyslexia into account when exercising its case-management discretion, but dyslexia does not create an automatic right to an oral hearing. The question is whether an oral hearing is required by fairness in the circumstances and having regard to the overriding objective.

An error in overlooking a disclosed disability is not material where an oral procedure could not have affected the outcome. A tribunal may strike out proceedings without a hearing under rule 8, notwithstanding the general consensual requirement for determination without a hearing in rule 32(1) of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009.

Mr Sajad Hussain appealed to the Upper Tribunal against the First-tier Tribunal’s decision to strike out his appeal from an Information Commissioner decision notice concerning a request under the Freedom of Information Act 2000.

The First-tier Tribunal held that his pleaded allegation of conspiracy and fraud fell outside its jurisdiction and, alternatively, had no reasonable prospects of success. It dealt with the strike-out application on the papers. Although Mr Hussain had stated on his appeal form that he had dyslexia, the First-tier Tribunal later incorrectly said that he had not disclosed it.

Permission was granted only on whether that oversight, and the absence of an oral hearing, amounted to a material error of law.

1. Appeal dismissed. The First-tier Tribunal’s failure to recognise that Mr Hussain had disclosed his dyslexia was an error, but it was not material. His sole pleaded grounds alleged collusion and fraud by the Information Commissioner and the local authority. Those grounds were outside the First-tier Tribunal’s jurisdiction and were unparticularised and unsupported, so an oral hearing could not have changed the outcome.

2. Rule 32(1) of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 did not itself permit a paper determination merely because the tribunal considered that it could determine the issues without a hearing. Rule 32(1) requires each party’s consent. However, rule 32(3) expressly preserves the tribunal’s power to dispose of proceedings without a hearing under rule 8, including by striking out a party’s case.

3. Dyslexia is a potentially important factor in the exercise of the tribunal’s broad case-management discretion. It is not an automatic entitlement to an oral hearing. Other considerations, including the overriding objective and whether an oral procedure could affect the result, may point against a hearing.

4. Applying the fairness test in R (Osborn) v Parole Board [2014] AC 1115, no oral hearing of the Upper Tribunal appeal was required. Neither party sought one, the issue was narrow, and the parties’ positions were sufficiently clear on the papers.

5. The related ruling in which another First-tier Tribunal judge set aside a strike-out decision after overlooking dyslexia did not control this case. First-tier Tribunal decisions do not bind one another on facts, and the other appeal involved a proposed amendment of grounds and materially different circumstances.

• Upper Tribunal (Administrative Appeals Chamber): dismissed Mr Hussain’s appeal under section 11 of the Tribunals, Courts and Enforcement Act 2007.

• First-tier Tribunal (General Regulatory Chamber): struck out the appeal on the grounds of no jurisdiction under rule 8(2) and, alternatively, no reasonable prospects of success under rule 8(3) of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009.