AB v The Governing Body of Kingston Grammar School

Rule 23(1) of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 requires a substantive hearing before a tribunal disposes of proceedings, unless each party consents to determination without a hearing. The hearing must consider each party’s evidence and submissions. A procedural hearing, or a hearing considering only part of a party’s case, does not satisfy that requirement.

A party’s unsuccessful application to adjourn does not imply consent to a paper determination. Rule 27 permits a hearing to proceed in a party’s absence, but it does not permit the tribunal to terminate the hearing and decide the merits on the papers without the consent required by rule 23. The error is material where hearing available oral evidence might have led to a different outcome.

The appellant brought claims on behalf of her two children alleging disability discrimination by The Governing Body of Kingston Grammar School under the Equality Act 2010. The First-tier Tribunal rejected an adjournment application when the appellant was unrepresented and unwell. It then dismissed the claims on the papers, finding that neither child was disabled.

The appellant appealed against the First-tier Tribunal’s decision of 3 May 2023. The principal issue was whether the First-tier Tribunal could dispose of the claims without holding a substantive hearing at which the parties’ evidence and submissions were considered, despite the appellant’s lack of consent to a paper determination.

1. Appeal allowed. The First-tier Tribunal erred in law by disposing of the claims without the hearing required by rule 23(1) of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008.

2. Rule 23(1) links the required hearing to a decision disposing of proceedings. Accordingly, it requires a hearing at which each party’s case, including its evidence and submissions, is considered. A procedural hearing held earlier in the proceedings, or a hearing considering only part of a party’s case, does not meet that requirement.

3. The First-tier Tribunal convened a hearing on 19 April 2023 but terminated it shortly after refusing the appellant’s adjournment request. It then decided the merits on the papers. That was not a continuation of a hearing in the appellant’s absence under rule 27. Since neither party consented to determination without a hearing, the paper determination breached rule 23(1). The appellant’s request for an adjournment could not amount to implied consent to such a determination.

4. The error was material. The appellant’s witness was present and could have given oral evidence relevant to whether the children’s impairments had a substantial adverse effect on normal day-to-day activities. That evidence was capable of affecting the disability findings under the Equality Act 2010.

5. It was unnecessary to decide the remaining aspects of ground 1. The judge nevertheless indicated that, if ground 2 had required decision, the First-tier Tribunal appeared unfairly to have determined impairment where the appellant could reasonably have understood the school’s formal response not to dispute that element.

6. Under section 12(2) of the Tribunals, Courts and Enforcement Act 2007, the First-tier Tribunal’s decision was set aside and the claims were remitted for a fresh hearing before a differently constituted First-tier Tribunal.

• Upper Tribunal (Administrative Appeals Chamber): Allowed the appeal and set aside the First-tier Tribunal’s decision under section 12(2) of the Tribunals, Courts and Enforcement Act 2007.
• First-tier Tribunal (Health, Education and Social Care Chamber): On 3 May 2023, dismissed the appellant’s disability-discrimination claims after deciding them on the papers.