Gary Shipton v The Information Commissioner & Anor
[2023] UKUT 170 (AAC)
PC v Cornwall Partnership NHS Trust
2 March 2023
[2023] UKUT 64 (AAC)
Upper Tribunal
A court hearing happened without the person it was about being there. A higher court said this was wrong because the lower court didn't check if it was okay to do this, so they sent the case back to be heard again by different people.
Key Facts
- •PC was subject to a Community Treatment Order and recalled.
- •First-tier Tribunal hearing was held in PC's absence.
- •PC's solicitor applied for postponement and adjournment, both refused.
- •The First-tier Tribunal failed to make necessary findings of fact to justify proceeding in PC's absence.
- •The First-tier Tribunal judge incorrectly cited rule 39 when refusing permission to appeal.
Legal Principles
Tribunals may proceed with a hearing in a party's absence if notified and it's in the interests of justice.
Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (SI No 2699), Rule 39(1)
Tribunals must not proceed with a hearing in a patient's absence unless satisfied the patient decided not to attend or was unable to attend due to ill health, and a medical examination has been carried out or is impractical/unnecessary.
Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (SI No 2699), Rule 39(2)
In mental health cases, there are additional restrictions on proceeding without a hearing due to the importance of safeguards when liberty is at stake.
Tribunal Procedure Rules, Rule 35
The Upper Tribunal does not review the reasons given for refusing permission to appeal to the First-tier Tribunal.
CIS/4772/2000 at [2]-[11] and Albion Water Ltd v Dŵr Cymru Cyf [2009] 2 All ER 279 at [67]
Outcomes
First-tier Tribunal decision set aside.
The tribunal failed to make the necessary findings of fact to justify proceeding in the patient's absence, violating Rule 39(2).
Case remitted for rehearing by a differently constituted panel.
To correct the error of law in proceeding without sufficient justification in the patient's absence.