CB v Dorset Healthcare University NHS Foundation Trust

The Upper Tribunal finds that the making of the First-tier Tribunal decision involved the making of an error on a point of law. However, the Upper Tribunal exercises its discretion pursuant to section 12(2)(a) Tribunals, Courts and Enforcement Act 2007 so as not to set aside the decision of the First-tier Tribunal as it would serve no purpose. The appellant is no longer subject to the Mental Health Act 1983.

This decision is made following an oral hearing on 24 February 2026, held by consent by video. The appellant was represented by Mr Waters. The respondent was not represented. I am grateful to Mr Waters for his submissions.

Introduction

The appellant appeals to the Upper Tribunal against the First-tier Tribunal’s decision under case number MP/2025/08426. The appeal is within time.

Permission to appeal was granted on the 2 June 2025 on three grounds:

Factual and procedural background

The appellant was detained under section 2 and then 3 of the Mental Health Act 1983 (the Act) in September 2024. He was referred to the First-tier Tribunal under section 68(2) of the Act on 26 March 2025. The First-tier Tribunal was held remotely on 30 May 2025. The written decision is dated 2 June 2025.

The relevant evidence in the First-tier Tribunal’s decision is as follows:

The tribunal identified the practical steps that needed to be completed. These steps were an application for funding for the accommodation and the identification of a community team neither of which was in place.

They set out their findings on section 72 of the Act. The relevant findings are as follows:

The appellant applied for permission to appeal to the First-tier Tribunal on the grounds that the tribunal erred in law in not following the Upper Tribunal decision in SS v Cornwall and refusing the application for an adjournment; by not giving the appellant the opportunity to make final submissions once they had refused to adjourn. On the 23 June 2025 permission to appeal was refused by the First-tier Tribunal.

The appellant’s submissions and oral hearing

Mr Waters representing the appellant confirmed with the Upper Tribunal that he had checked with the respondent whether they were going to appear at the hearing and was told that they were not. On the 24 September 2025 the respondent confirmed with the Upper Tribunal that they did not intend to engage with the proceedings.

As to ground (1) Mr Waters relied on the case of SS v Cornwall. He submitted that following that case, the tribunal had a legal duty to use their significant case management powers to facilitate discharge by obtaining the necessary information to make a fully informed decision. In this case the tribunal accepted that discharge planning was centrally relevant and that discharge would occur once arrangements had been made but failed to determine whether those arrangements would in fact materialise within a reasonable timescale and “deferred that question to future events”.

He submitted that the evidence before the tribunal contained a number of uncertainties. He said the community team had not been identified, there was conflicting evidence over leave and the funding for the proposed accommodation had not been agreed.

He submitted that the tribunal place great emphasis on their being no “missing” information, but SS v Cornwall does not contain the word missing but refers to “more” “further” or “better” or a “lack of” information. He submitted that although aftercare arrangements had progressed further than those in SS v Cornwall “being further along the road is still not reason to kick the can down it.”

He further submitted that the First-tier Tribunal is bound by decisions of the Upper Tribunal and should follow those decisions unless there are different material facts which distinguishes the cases. I asked Mr Waters in the hearing whether by adjourning this case given the information already in front of the tribunal they would have been going outside their statutory remit which was to decide whether they were satisfied that the patient needed to be detained. He said the decision of the tribunal is ultimately to discharge or not, but they also have the power to adjourn and that is important. Where there is uncertainty, they should adjourn. The RC cannot intervene to organise funding and by adjourning with directions to ensure an aftercare plan was in place this benefits both parties in this case as the detaining authority said the patient is ready for discharge if an aftercare plan was in place. Having an aftercare plan in place would have had a significant impact on their decision.

As to ground (2) on which permission was granted Mr Waters submits that the tribunal was making two different decisions on which the appellant should have had the opportunity to make submissions. The tribunal made a decision to refuse to adjourn and did not allow the appellant to make submissions in light of that refusal on discharge. He submits this was a material error and relies on UTJ Church’s decision in KH & AH v Nottinghamshire Healthcare NHS Foundation Trust & Avon & Wiltshire Mental Health Partnership NHS Trust [2025] UKUT 128 (AAC). At paragraph 107 of that decision UTJ Church says as follows:

Although the material facts in this case differed as the decision made by the tribunal in KH which was about the continued representation of a patient under 11(7)(b) of the rules despite that patient not wanting representation Mr Waters submits that in this case supports the proposition that even if it was unlikely that submissions would have made a “material impact” on the decision, the appellant should have had the opportunity to make submissions and this was material for the reasons given in Rondel and Worsley above.

I have not included Mr Waters submissions on ground (3) as I have not made findings on that ground given my findings on ground (1) and (2).

The Law

Section 72 of the Mental Health Act 1983 described the powers of the tribunal in an unrestricted case such as this one. The relevant parts of that section are:

This case also concerns the tribunals application of the procedure rules. The relevant rules are:

—(1) The overriding objective of these Rules is to enable the Tribunal to deal with cases fairly and justly.

Dealing with a case fairly and justly includes—

The Tribunal must seek to give effect to the overriding objective when it—

—(1) Subject to the provisions of the 2007 Act and any other enactment, the Tribunal may regulate its own procedure.

In particular, and without restricting the general powers in paragraphs (1) and (2), the Tribunal may—

In AM v West London Mental Health NHS Trust[2013] EWCA Civ 1010 Richards LJ when deciding on permission to appeal the Upper Tribunal’s decision to refuse an adjournment on the basis that aftercare information would have made no difference to the decision of the First-tier Tribunal said at paragraphs 8 and 9:

In SS v Cornwall Partnership NHS Foundation Trust (Mental Health) [2023] UKUT 258 (AAC) UTJ Church said at paragraphs 32, 45-48 as follows:

…

The Analysis

The First-tier Tribunal is bound to follow the decisions of the Upper Tribunal unless those decisions can be distinguished on their facts. The First-tier Tribunal in the present case purported to distinguish the present case from Cornwall on the basis that the present did not have “missing information”.

I find that the First-tier Tribunal erred in law in doing so, for the following reasons.

There was missing information in the present case, as there was in SS v Cornwall.

At the first hearing in SS v Cornwall the tribunal adjourned because the patient had been well enough for discharge from hospital for some time if a discharge pathway and accommodation was available. The next tribunal met some 7 weeks later and decided not to adjourn and did not discharge the patient. At this stage the RC was concerned that the patient was becoming institutionalised, but no aftercare plan was in place although significant progress had been made. There was a potentially suitable placement identified, and the patient was to be assessed but this had not yet taken place and so there remained uncertainty as to what would be available to the patient should he be discharged. The reason given by the First-tier Tribunal in that case for not adjourning the hearing was that the discharge plan was not ready and it would take some time. They decided that it was not “necessary” in the interests of justice for the hearing to be further delayed. It was this decision which was found to be in error of law.

In SS v Cornwall the key question when deciding an application to adjourn for aftercare information was identified at paragraph 29 of that judgment:

The Tribunal in the present case did not give a reason for finding that “it did not appear … that there was any missing information as to the current situation in respect of aftercare (as per SS v Cornwall)”, except to say that the “discharge planning is actively being progressed but there is a process to be completed before a discharge can occur”.

But in any event, (i) the finding that it did not appear that there was any missing information was not supported by the evidence, and (ii) the evidence also did not show that the information that was missing was “incapable of affecting the decision” or that “an adjournment to secure its provision could achieve nothing beyond additional expense and delay” as in SS v Cornwall). I deal with each of those points in turn.

Firstly, there was missing information. The tribunal found that aftercare was of “central importance” to the patient’s case. Funding for the accommodation had not been agreed and there was no community team in place.

Secondly, the First-tier Tribunal applied the wrong test when making the decision on whether to adjourn. The test is not whether there was “missing information”; the key question identified by Richards LJ in AM v West London Mental Health NHS Trust and followed in SS v Cornwall was whether “information or better information of aftercare is incapable of affecting the decision, and that an adjournment to secure its provision could achieve nothing beyond additional expense and delay and would therefore be inappropriate…” (paragraph 9 of AM). The information that was not before the tribunal was whether the accommodation would be funded and what team would provide care in the community. That information was capable of affecting the decision. In their findings on section 72 the tribunal said that the ward was causing much of the [appellant]’s dysregulated behaviour; that his behaviour would be more settled in the community; that he was described as being at his baseline presentation and is ready for discharge once suitable accommodation is in place; and that if he was discharged without appropriate accommodation his physical and mental health would deteriorate. The evidence of the RC was that if aftercare was available the patient would be discharged. This is not a case where nothing beyond additional expense and delay would be gained by the adjournment. UTJ Church said at paragraph 48 as follows:

Neither of those situations were applicable to this case. The evidence was that the funding decision would be made in approximately two weeks and the community team would then be identified. The information before the tribunal was that aftercare information was relevant, the patient had reached the stage at which discharge was a realistic prospect and there was a realistic prospect of that information being provided once the funding panel had met and a community team had been allocated.

Mr Waters submitted that the tribunal had a duty to facilitate discharge. I need not decide whether that is in fact the test in view of my above findings.

In this case the tribunal made both the decision not to adjourn and not to discharge at the same time. The appellant’s representative did not have the opportunity to make submissions after the decision not to adjourn was made on whether the tribunal should be satisfied of the criteria under section 72. This is a material error of law.

The importance of procedural fairness is clear in law. Mr Waters relied on the case of KH & AH v Nottinghamshire Healthcare NHS Foundation Trust & Avon & Wiltshire Mental Health Partnership NHS Trust and specifically paragraph 107 of that decision where UTJ Church said:

In DB v Lancashire and South Cumbria NHS Foundation Trust and the Secretary of State for Justice I cited the case of R(A Child) [2025] EWCA 1504 when deciding on procedural fairness in that case. The first reason for why procedural fairness is important is relevant to this case. Moylan LJ said this at paragraph 34 of that judgment;

Rule 2 of the Tribunal Procedure Rules requires the tribunal to deal with cases fairly and justly which includes:

It was incumbent on the First-tier Tribunal to give the appellant the opportunity to make submissions on the decision under section 72 once they had made the decision not to adjourn. To not give the appellant that opportunity was procedurally unfair and did not recognise the importance of the case for the patient nor enable him through his representative to participate in the proceedings. This was an error of law.

Given I have found ground (1) and ground (2) were material errors of law I have decided it is unnecessary to make a finding on this ground. As the appellant is no longer subject to the Act although I have identified two material errors of law Although the decision of the First-tier Tribunal involved the making of an error on a point of law, it is not set aside under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007 as there would be no practical effect for the parties.

Conclusion

The First-tier Tribunal erred in law. As the appellant is no longer subject to the Act there is no purpose in setting aside the decision.

The reason I have decided the points of law although the appeal became academic, is that it is important to point out the test to be applied when a tribunal should have adjourned and the importance of procedural fairness.