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Neutral Citation Number:	2014 UKUT 275 AAC
Reported Number:
File Number:	CDLA 643 2014
Appellant:	JP
Respondent:	Secretary of State for Work and Pensions (DLA)
Judge/Commissioner:	Judge E. Jacobs
Date Of Decision:	11/06/2014
Date Added:	01/07/2014
Main Category:	Tribunal procedure and practice (including UT)
Main Subcategory:	other
Secondary Category:
Secondary Subcategory:
Notes:	Reported as [2015] AACR 2 Tribunal practice – fair hearing – whether a child should give evidence or attend a hearing The claimant was a 12-year old child. Her mother unsuccessfully claimed disability living allowance (DLA) on her behalf. The claimant and her mother went to the First-tier Tribunal (F-tT) but it refused to allow the claimant an opportunity to give evidence or to attend the hearing, despite evidence that she was able to discuss and to decide upon her own treatment. Instead the F-tT, relying upon the Senior President’s Practice Direction, decided that evidence from the claimant’s mother together with documentary evidence was sufficient. The issue before the Upper Tribunal (UT) was whether the F tT had been right in deciding not to allow the claimant an opportunity to give evidence or to be present while the appeal was heard. Held, allowing the appeal, that: 1. the F-tT’s decision was wrong in law because the approach to children, whether as witnesses or as persons present in a hearing, had to be updated to be consistent with the international obligations on the rights of children, the right to a fair hearing and the right to family life. This approach was reflected in decisions of the Court of Appeal and Supreme Court in family cases: Mabon v Mabon [2005] EWCA Civ 634; [2005] Fam 366, and Re W (children) (family proceedings: evidence) [2010] UKSC 12; [2010] 1 WLR 701. It required modification to the guidance given by the Tribunal of Commissioners in R(DLA) 3/06 and careful application of the Senior President’s Practice Direction (paragraphs 12 to 19); 2. the F-tT also erred in law on five further counts and therefore failed to take account of the claimant’s right to autonomy and to take part in decision-making about her entitlement to benefit. The F-tT considered only her welfare and, in doing so, failed to consider the point made in Mabon: denying a child the right to participate could be harmful in itself (paragraphs 20 to 22). The decision of the F-tT was set aside and the appeal remitted to a differently constituted tribunal to be decided in accordance with the judge’s directions. Editor’s note: On 29 July 2014 the Senior President of Tribunals announced his intention to revise the Practice Direction for the First-tier and Upper Tribunal on Child, Vulnerable Adult and Sensitive Witnesses to bring it into line with developments in the law in this field.
Decision(s) to Download:	[2015] AACR 2ws.doc