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Neutral Citation Number:	2010 UKUT 202 AAC
Reported Number:
File Number:	CDLA 636 2010
Appellant:	MD
Respondent:	Secretary of State for Work and Pensions
Judge/Commissioner:	Three-Judge Panel / Tribunal of Commissioners
Date Of Decision:	16/06/2010
Date Added:	02/08/2010
Main Category:	Tribunal procedure and practice (including UT)
Main Subcategory:	other
Secondary Category:
Secondary Subcategory:
Notes:	Reported as [2011] AACR 5 Tribunal procedure – Upper Tribunal – enforcement reference A district judge of the First-tier Tribunal issued a direction under rule 16 of the SEC Rules containing a summons for a doctor to attend the hearing of the claimant’s disability living allowance appeal. The doctor had failed to respond, because of an administrative error by his surgery staff, to an earlier direction requiring him to produce the claimant’s medical records. Neither the doctor nor the appellant was present at the hearing but the appeal was allowed. A regional tribunal judge made an enforcement reference to the Upper Tribunal under section 25 of the Tribunals, Courts and Enforcement Act 2007 and rule 7(3) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008. There had been errors in the name and address of the doctor in the document and the Upper Tribunal accepted that he had not received the summons. Held, making no order on the reference, that: 1. rule 6(4) of the SEC Rules requires written notice of any direction to be sent to any person affected by the direction, and section 7 of the Interpretation Act 1978 deems a document to be effectively served by post only if it is properly addressed and so the failure of the doctor to comply with a notice he had not received could not conceivably warrant the exercise of powers under section 25 of the 2007 Act (paragraph 13); 2. an order to compel a practising doctor to attend a hearing should not be made without a very compelling reason but in this case there was no indication of why the tribunal considered that such an order was a necessary and proportionate response to the doctor’s apparent failure to comply with the previous directions (paragraph 15); 3. the tribunal should have investigated the possibility of proceeding without the records before issuing the summons and should have investigated whether the letter had actually been delivered to the doctor’s address before deciding to refer the matter to the Upper Tribunal (paragraphs 15 and 16); 4. care must be taken to follow proper procedures both before a tribunal decides to make a reference and once such a decision is made, and in this case the tribunal had erred in making a reference that was reserved to the Chamber President in breach of paragraph 10 of the Senior President’s Practice Statement on Composition of Tribunals and in failing to make any provision in the summons for the payment of the doctor’s expenses in breach of rule 16(2)(b) ((paragraphs 17 and 18); 5. tribunals must make clear in plain English what things must be done and the possible consequences of any failure to do what the tribunal has required, and it is highly desirable that a statement under rule 16(4)(b) of the SEC Rules should spell out the penalties that may be imposed for failure to comply (paragraph 19); 6. the Upper Tribunal reserved for the future the question of whether a party other than the alleged contemnor can make representations in a section 25 case, accepting that it would be more appropriate for that issue to be considered and decided in a case where a party had substantive representations to make (paragraphs 23 and 24).
Decision(s) to Download:	[2011] AACR 5 ws.doc