Upper Tribunal procedure – rule 43 of Tribunal Procedure (Upper Tribunal) Rules 2008 – does not apply to procedural irregularities in First-tier Tribunals and does not allow challenges to Upper Tribunal’s decision or reasoning
The Upper Tribunal (UT) refused the claimant permission to appeal as her claim to have been self employed had not been before the First-tier Tribunal (F-tT) and therefore had to be disregarded. The claimant applied to the UT for the refusal decision to be set aside, arguing that her self employed status should have been apparent to the F-tT from both the calculation of her state pension and her testimony during the hearing. Under rule 43 of the Tribunal Procedure (Upper Tribunal) Rules 2008 the UT may set aside its decision if it considers that it is in the interests of justice to do so and if one or more of following conditions within rule 43(2) are satisfied, namely: (a) a document relating to the proceedings was not sent to, or was not received at an appropriate time by, a party or a party’s representative; (b) a document relating to the proceedings was not sent to the UT at an appropriate time; (c) a party, or a party’s representative, was not present at a hearing related to the proceedings; or (d) there has been some other procedural irregularity in the proceedings.
Held, dismissing the application, that:
no information or reference to the claimant’s self-employment was contained within either the calculation of the claimant’s state pension or the record of the tribunal proceedings (paragraphs 5 to 6);
the matters raised by the claimant challenged the correctness of the UT’s decision and accordingly were outside the scope of rule 43, which was limited to matters of procedure and the UT’s handling of the claimant’s application and did not encompass judicial errors (paragraphs 7 to 10).
the only way to challenge a decision refusing permission to appeal to the UT was by way of judicial review, an appeal to the Court of Appeal being excluded by section 13(8)(c) of the Tribunals, Courts and Enforcement Act 2007. The importance of maintaining proper jurisdictional boundaries applied equally to that jurisdiction as to an appeal. Moreover, rule 43 applied to all decisions that disposed of proceedings, so it must be interpreted and applied consistently to all those decisions, regardless of whether they could be challenged by way of appeal or on judicial review (paragraph 11);
the scope of the enabling power under which rule 43 was made was also important as it controlled its permissible scope. In R(U) 3/89 the Social Security Commissioners interpreted their equivalent power by reference to the enabling provision which applied only to procedure. The same was true of rule 43 which was made under the Tribunals, Courts and Enforcement Act 2007, which in section 22 provided for “rules … governing … the practice and procedure” of the F-tT and UT (paragraph 12);
the judge explained why any complaints of procedural irregularity by the F-tT were outside the scope of rule 43 (paragraphs 13 to 14).