KMV v Secretary of State for Work and Pensions & Anor

When a tribunal proceeds in one party’s absence, it must consider the effect of that absence on conflicting evidence, particularly where the attending party’s evidence is tested but the absent party’s written evidence is not. The tribunal should assess whether weaknesses in the attending party’s evidence sufficiently countervail the lack of testing and, if it remains fair and in the interests of justice to proceed, give adequate reasons. There is no automatic requirement to adjourn. A failure to address these matters is material where proper consideration might have affected either the fact-finding or the decision to continue in the party’s absence.

The appellant father challenged a child support decision concerning his 17-year-old daughter. The Secretary of State had determined that he was liable to pay maintenance from 3 May 2023. The First-tier Tribunal dismissed his appeal, finding that the daughter had her home with her mother, the second respondent, who had not attended the hearing. The tribunal rejected the father’s evidence as contradictory and accepted the mother’s untested written evidence.

The father appealed, with the Secretary of State supporting the appeal. The Upper Tribunal considered whether the First-tier Tribunal had adequately addressed the effect of the mother’s absence on its assessment of the competing evidence and on the fairness of continuing the hearing in her absence. The Upper Tribunal determined the appeal on the papers.

1. Appeal allowed. The First-tier Tribunal’s decision involved a material error of law. It was set aside and the case remitted for an oral rehearing on the person-with-care issue.
2. The First-tier Tribunal was entitled to scrutinise the father’s evidence and explain why it found that evidence contradictory. The error was that it did not address the material circumstance that the mother’s conflicting written evidence had not been tested by questioning. The tribunal needed to consider whether the weaknesses it found in the father’s evidence were sufficiently serious to countervail that circumstance.
3. There was no rule requiring the First-tier Tribunal to adjourn to secure the mother’s attendance. But where the evidence has been tested unequally, it may need to reassess whether it remains fair and in the interests of justice to continue in the absent party’s absence. If it proceeds, its reasons should explain how it accounted for the untested evidence. The continuing obligation to consider fairness throughout the case was supported by KO v SSWP (ESA) [2013] UKUT 544. The judge also referred to Kiely v Minister for Social Welfare [1977] IR 267 as expressing the fairness principle underlying the decision, and quoted a qualification discussed in R (Bonhoeffer) v GMC [2011] EWHC 1585 (Admin).
4. The error was material because proper consideration might have changed either the finding about where the daughter lived or the decision that it was in the interests of justice to continue without the mother. Whether the mother usually provided day-to-day care was not determined as a separate error; the judge observed that an express finding would have been good practice and that the materiality of its omission depended on whether the finding could reasonably be inferred from others.
5. The rehearing is confined to the person-with-care issue. The previous decision on shared care remains binding. The new tribunal must assess circumstances at the relevant time and must not include later circumstances, although later evidence may be considered if it relates to that time.

1. Upper Tribunal (Administrative Appeals Chamber): Allowed the appeal, set aside the First-tier Tribunal’s decision and remitted the person-with-care issue for an oral rehearing: [2026] UKUT 359 (AAC) .
2. First-tier Tribunal (Social Entitlement Chamber): Dismissed the father’s appeal against the Secretary of State’s child support decision on 2 January 2025.